I hope everyone that celebrated had a good new year season. Wishing all of those a happy new year. In other news, early election voting is underway in many states. My family voted yesterday. Be sure to vote for the candidate of your choice.
Today’s blog entry returns to a long-standing interest of mine. As readers know, I have long been interested in the intersection of sports and the ADA. You can find many Understanding the ADA blog entries that explore the intersectionality of the ADA and sports. Today’s blog entry is a bit different because it explores Title III not from the perspective of employment, Internet accessibility, or architectural accessibility, but from the perspective of policies, practices, and procedures. The case of the day is Maya v. 49ers Football Company LLC decided by the Northern District of California on September 10, 2024, here. In this case, United States District Judge Pitts denied the 49ers motion to dismiss. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiffs adequately pled claims for discriminatory policies and practices under the ADA, The California Disabled Persons Act, and The Unruh Act; court’s reasoning that plaintiffs adequately pled claims for retaliation and interference under the ADA, The California Disabled Persons Act, and The Unruh Act; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
I
Facts (Taken from the Opinion)
Enrique Maya is a 78-year-old “individual with a childhood diagnosis of polio,” which has left him reliant on a wheelchair “whenever he needs to take more than a few steps.” Compl., Dkt. No. 1 ¶¶ 3, 14. The complaint alleges that this classifies him as a “person with a disability as defined by state and federal law.” Id. Rick Maya is Enrique Maya’s adult son. Id. ¶ 4.
Rick Maya took his two sons and father to a Forty Niners football game at Levi’s Stadium. Compl. ¶ 9. Enrique Maya’s attendance was not planned when the tickets were bought. Rick Maya invited his father to attend at the “last minute” because Rick Maya’s wife was unable to attend. Id. Plaintiffs allege that “[a]ble bodied guests can make a last-minute decision to accept the gift of a ticket to Levi’s Stadium.” Id. ¶ 33. The family’s ticketed seats were located seven steps from the concourse level, which Enrique Maya could not access because of his inability to navigate the stairs. Id. ¶ 10. Because of this, Rick Maya pushed his father’s wheelchair into an unoccupied wheelchair-designated seat on the concourse level for which the Mayas did not have a ticket. Id. ¶ 11.
An usher at the stadium informed the Maya family that they could not use the wheelchair space without a ticket. Compl. ¶11. Rick Maya proceeded to ask “for another wheelchair seat option.” Id. In response to Rick Maya’s requests, the usher stated that “she did not know where Enrique could sit, but he couldn’t use the wheelchair spaces.” Id. The usher then proceeded to call security staff. Id. Sean, one of the two security staff who responded to the dispute, said Enrique Maya could watch the game on a television in the concourse, but would not be allowed to use the wheelchair space without a ticket. Compl. ¶¶ 12–14. Rick Maya informed security that the concourse was not an acceptable alternative, as it was “busy and boisterous,” and “in the path of foot traffic” adjacent to the men’s restroom and a beer stand. Id. at 14.
Sean insisted that they needed tickets for the wheelchair space and “gave them no other option.” Id. at 13–14. He instead threatened to remove the family from the stadium if they did not move. Id. “Shortly, three uniformed Santa Clara City police officers arrived and stood near Plaintiffs and Sean, watching the conversation between them.” Id. “After the offices arrived,” Sean told Rick Maya that “he and his family would be ejected from the stadium” if Rick Maya “did not stop complaining.” Id. The Mayas “understood the police presence as a threat of force and/or arrest if Rick continued to advocate for his father to have equal seating,” and at that point “chose to stop advocating and use the inaccessible seats” because Enrique Maya “did not want his grandsons to miss the game.” Id. ¶¶ 15–16.
Enrique Maya’s son and two grandchildren carried him down to their seats, an experience that left Enquire Maya feeling “embarrassed,” “ashamed,” and “uncomfortable,” as “his disability was being graphically demonstrated.” Compl. ¶ 16. Unable to bring himself to ask to be taken to the restroom after the experiences that occurred prior, Enrique Maya urinated on himself in his seat. Id. ¶ 19. This experience at Levi’s Stadium left Enrique Maya feeling humiliated and made him feel “exposed and unwanted as a person with a disability.” Id. ¶¶ 19–20.
Rick Maya’s enjoyment of the game was also affected by the need to routinely check on the wheelchair, which stadium staff placed out of sight. Compl. ¶ 21. At halftime and again towards the end of the game, Rick Maya asked the ushers whether his father could move to one of the empty wheel-chair spaces, promising that he would not occupy a companion seat himself. Each time, the ushers responded no. Id. These wheelchair spaces remained unoccupied throughout the entire game. Id.
After the game ended, Rick Maya called the 49ers’ customer service line to report the experience and “requested that the 49ers follow the Americans with Disabilities Act.” Compl. ¶ 23. The supervisor, however, “would not promise that his father would be allowed a wheelchair seat if the ticket was not originally purchased as a wheelchair seat.” Id. The supervisor provided the Mayas with no other options and told Rick Maya, “We follow the rules of the NFL.” Id
II
Court’s Reasoning That Plaintiffs Adequately Pled Claim for Discriminatory Policies and Practices under the ADA, the California Disabled Persons Act, and the Unruh Act
- In order to state a claim under Title III of the ADA, a plaintiff must show: 1) the person is disabled within the meaning of the ADA; 2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and 3) the person with a disability was denied public accommodations [”public accommodation,” is the term that appears in the opinion. A more accurate phrasing would have been, “was denied goods, services, facilities, privileges, advantages or accommodations of the place of public accommodations.”], by the defendant because of a disability.
- The ADA, 42 U.S.C. §12182(b)(2)(A)(ii), requires public entities [”public entities,” is what actually appears in the opinion. However, that has to be a mistake. The correct term would be, “place of public accommodations], to affirmatively modify policies, practices, and procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications fundamentally alters the nature of such goods, services, facilities, privileges, advantages, or accommodations.
- In California, a violation of the ADA is a per se violation of the Unruh Act and the Disabled Persons Act.
- It is uncontested that Enrique Maya is a person with a disability under the ADA and that the defendants are private entities subject to Title III of the ADA.
- Plaintiffs pled that the 49ers have a policy, practice, or procedure of requiring wheelchair-bound spectators to buy wheelchair seat tickets in advance if they wish to have a viewing experience comparable to that of other spectators. They also pled that non-disabled participants can make a last-minute decision to accept the gift of a ticket to the football stadium. As such, the facts pled plausibly alleged disability-based discrimination because they suggest that the defendant’s policies and practices require only disabled individuals to pre-purchase tickets.
- In a footnote, the court noted that the 49ers argued that their current pre-purchase policy was written in connection with a settlement agreement reached in a prior ADA lawsuit. The court was having none of it because the fact that a prior policy violated the ADA, does not mean that all aspects of a revised policy are compliant with the ADA.
- Defendants argued that ADA regulations regarding ticketing and seating were quite robust and nowhere do they include a requirement that a venue must permit a non-ticketed person with a disability to occupy an accessible ticketed location on demand. Once again, the court was having none of it. The court said that while ADA regulations do contain specific provisions addressing ticketing and seating, 28 C.F.R. §36.302(f), compliance with those regulations does not otherwise allow defendants to run away from their ADA obligations. Plaintiffs have plausibly alleged that defendant’s policies and practices deny disabled individuals full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the football stadium by conditioning the accommodation of the disability on the unique requirement to pre-purchase tickets, and that is true regardless of defendants reported compliance with ADA’s specific regulations regarding ticketing and accessible seating.
- A plaintiff may state a claim of disability discrimination by establishing that the defendant: 1) failed to make a requested reasonable modification that was 2) necessary to accommodate a plaintiff’s disability. Plenty of evidence (see below), suggests that this is exactly what happened.
- When Rick Maya informed defendants that the suggested modification was not reasonable, defendants provided no other option. During halftime and towards the end of the game, Rick Maya again sought reasonable modifications suggesting that this could be accomplished by allowing Enrique Maya to occupy one of be still unoccupied wheelchair seats even without Rick Maya occupying a companion seat.
- Plaintiffs also allege that when Rick Maya called defendants’ customer service line to inquire about modifications under the ADA, defendants again offered no alternatives and indicated they could not commit to reasonably modifying their policies and practices in the future.
- Plaintiffs are not asserting that defendants should implement a specific modification. Instead, plaintiffs simply assert that the defendant should have provided them with a reasonable modification in compliance with the ADA’s mandate.
- The ADA requires that the defendants offer Enrique Maya some reasonable accommodation to account for his wheelchair-bound status and the allegations are that the defendants never did that.
- In a footnote, the court noted that whether a modification is reasonable is a fact intensive inquiry that is premature for resolution on a motion to dismiss. The court also said that the issue of reasonableness depends on the individual circumstances of each case requiring a fact specific and individualized analysis of the disabled individual’s circumstances and the accommodations that might be necessary in order to ensure the ability of the person with a disability to enjoy a public accommodation.
III
Court’s Reasoning That Plaintiffs Adequately Pled Claims for Retaliation and Interference Under The ADA, The California Disabled Persons Act, And The Unruh Act
- Under the ADA, 42 U.S.C. §12203(b), it is unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercise or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA.
- To state a claim for retaliation under the ADA, a plaintiff has to demonstrate: 1) involvement in a protected activity; 2) an adverse action; and 3) a causal link between the protected activity and the adverse action.
- Asserting one’s rights under the ADA can constitute a protected activity.
- With respect to the adverse action, plaintiffs allege that the adverse action occurred in the form of a threat of ejection in the presence of police officers in response to Rick Maya’s assertion of his father’s rights under the ADA. In response to Rick Maya asking the usher for an alternative wheelchair seat option after the usher notified them that Enrique Maya could not occupy the empty wheelchair seat, the usher radioed for security staff and a few minutes later, staff arrived. Such conduct by the defendant was effective in terminating the family’s effort to procure an accommodation for Enrique Maya’s disability, as they then went to their assigned seats (despite the significant difficulty they encountered moving Enrique Maya there), and remained there even after Enrique Maya needed to use the restroom.
- While the facts are sufficient to plausibly infer that defendants’ threat of ejection was a response to, and interfered with, their assertion of their rights under the ADA succeeding on the merits of the claim will necessitate proving that defendants’ action was a direct response to their assertion of rights and not simply to their insistence on occupying seats for which they did not have tickets, or refusal to vacate those seats, while the possibility of an alternative accommodation was being explored.
- If defendants had offered plaintiffs a reasonable alternative accommodation and threatened ejection only response to the family’s failure to vacate seats for which they did not occupy tickets, then plaintiff could not succeed on their claim for retaliation or interference. Whether that is the case, is a factual matter needing to be resolved and not appropriate for a motion to dismiss.
IV
Thoughts/Takeaways
- What is unusual about this case is that it involves a title III entity and its policies, practices, and procedures. The case stands for the proposition that Title III entities cannot have policies, practices, and procedures that discriminate against persons with disabilities.
- Facially neutral policies can be discriminatory. Here, only wheelchair users were required to purchase tickets in advance.
- I have said for decades that you have to be out of your mind not to engage in the interactive process even when an employment situation is not involved. It is hard to find Title III cases explicitly saying that an interactive process requirement exists, though it can be done. This case never uses the words, “interactive process.” However, it strongly implies that an interactive process requirement exists for Title III entities. The case talks about a failure of the defendants to offer reasonable modifications. It also talks about how the defendants never engaged in a back-and-forth to figure out what might work. Finally, the opinion mentions, “the possibility of an alternative accommodation being explored.” I definitely look for plaintiff’s attorneys to add this case to their arsenal when claiming that Title III entities have an obligation to engage in an interactive process. Imposing such a requirement makes sense because how else can you figure out what is a reasonable modification if you do not have an interactive process first. Finally, it should be noted that existing Title III regulations do talk about an interactive process being strongly encouraged when it comes to figuring out what is effective communications.
- The court seems to suggest that retaliation and interference are essentially the same thing. I don’t think they are. The court does a nice job of discussing retaliation and how that would play out. However, with respect to interference, readers will want to look at this blog entry, which defines interference as meddling. Based upon that blog entry as well as the court’s discussion of retaliation, one certainly sees how separate claims of interference and retaliation are both present in this case.
- This case comes pretty close to saying that a failure to accommodate is an adverse action by itself. Certainly, after Muldrow, which we discussed here, that certainly seem to be where the law is headed.
- Policies need to be continually assessed for their ADA compliance.
- Training (something I do a great deal of my practice), of personnel in ADA best practices and just what are the rights of persons with disabilities is super important.
- While “reasonable modification,” is the term for Titles II and III and “reasonable accommodation,” is the term for Title I, the two terms are entirely interchangeable.
- When it comes to the ADA, always perform an individualized analysis.
- Remember the do’s and don’ts of the interactive process, which we discussed here.
- I don’t see any not for publication notice in the opinion, so the opinion just might be published.