Smith v. Board of Commissioners of the Louisiana Stadium and Exposition District
Filing
96
FINDINGS OF FACT AND CONCLUSIONS OF LAW - The Court finds that Plaintiff Nancy Smith is entitled to recover from Defendant SMG $20,000 in damages for emotional distress. The Court further finds Plaintiff is entitled to injunctive relief, attorne ys' fees, and costs against SMG and against Defendant Kyle France, in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District. The Court will enter a judgment to that effect by separate order. Parties to further comply as stated herein. Signed by Judge Susie Morgan on 5/14/2019.(sbs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NANCY SMITH,
Plaintiff
CIVIL ACTION
VERSUS
NO. 17-7267
BOARD OF COMMISSIONERS OF THE
LOUISIANA STADIUM AND EXPOSITION
DISTRICT, ET AL.,
Defendants
SECTION: “E” (1)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Nancy Smith brings suit against Defendant SMG and Defendant Kyle
France in his official capacity as Chairman of the Board of Commissioners of the
Louisiana Stadium and Exposition District (“LSED”). Plaintiff brings claims under (1)
Title II of the ADA against France, in his official capacity, for injunctive relief; 1 (2) Title
III of the Americans with Disabilities Act (“ADA”) against SMG for injunctive relief; and
(3) the Louisiana Human Rights Act (“LHRA”) 2 against SMG for damages. On her claims
for injunctive relief, Plaintiff seeks an injunction requiring Defendants to do the
following:
(1) train SMG staff members on SMG’s policy that gives priority for elevator use to
patrons with disabilities over other patrons and SMG employees,
(2) adopt a written policy and train employees on the policy to require that, when
a wheelchair user with a ticket for a conventional seat objects to or indicates a
The Court has found the LSED, which previously was named as a Defendant, is entitled to sovereign
immunity on Plaintiff’s claims against it. R. Doc. 90. The Court found France, sued in his official capacity,
is entitled to sovereign immunity on Plaintiff’s damages claim against him. Id. Under Ex parte Young,
France is not entitled to sovereign immunity on Plaintiff’s claim against him for injunctive relief.
2 LA. REV. STAT. § 51:2231 et seq. The parties also refer to this act as the Louisiana Commission on Human
Rights or the “LCHR.”
1
1
desire not to sit in the conventional seat, the SMG employee affirmatively offer
the wheelchair user the option to exchange his or her ticket for a ticket for a
wheelchair-accessible seat, and
(3) adopt a written policy and train employees on the policy to require that, when
an SMG employee informs a wheelchair user that leaving a wheelchair on the
Superdome concourse is not permitted, the employee also inform the
wheelchair user about the availability of wheelchair check-in and storage at the
Guest Relations Center at the Mercedes-Benz Superdome (“Superdome”).
On her damages claim, Plaintiff seeks nominal and compensatory damages. Plaintiff also
seeks attorney’s fees and costs under the ADA 3 and the LHRA. 4
The matter was tried before the Court, sitting without a jury, on Monday, March
11, 2019. 5 The Court heard testimony from Nancy Smith, Braeden Smith, Brian Brunet,
and Laurie Ducros. 6 The Court admitted into evidence Exhibits 1–12 and 15. 7
Having considered the testimony and evidence at trial, the arguments of counsel,
and the applicable law, the Court now issues the following Findings of Fact and
Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
To the extent any findings of fact may be construed as conclusions of law, the Court adopts
them as such. To the extent any conclusions of law may be construed as findings of fact,
the Court adopts them as such.
42 U.S.C. § 12205.
LA. REV. STAT. § 52:2264.
5 R. Doc. 93 (minute entry).
6 Id.
7 Id.
3
4
2
FINDINGS OF FACT
The facts found by the Court are largely not in dispute. Plaintiff offered her own
testimony and the testimony of her daughter Braeden Smith regarding Plaintiff’s
experience leading up to and during the Guns N’ Roses concert at the Superdome on July
31, 2016. The testimony of Braeden Smith was consistent in all material respects with the
testimony of Plaintiff Nancy Smith. Defendants did not offer testimony contradicting the
testimony of Plaintiff and her daughter. Defense witnesses Brian Brunet, the SMG Senior
Assistant Box Office Manager, and Laurie Ducros, the SMG Guest Services Manager,
testified as to SMG’s policies regarding the ticket sales, staff training, and
accommodations for patrons with disabilities. Plaintiff did not offer testimony
contradicting the testimony of the defense witnesses.
Plaintiff Nancy Smith is an amputee who had a complete hip disarticulation of her
left leg performed in 2015. Her daughter Braeden Smith bought tickets for herself and her
mother via telephone for a Guns N’ Roses concert to take place at the Superdome on July
31, 2016. Braeden Smith believed she had called the Superdome Box Office, but she in fact
called Box Office Ticket Center LLC. The Box Office Ticket Center LLC customer service
representative who sold Braeden Smith the tickets assured her the seats were wheelchairaccessible.
Box Office Ticket Center LLC is a third-party ticket vendor that sells tickets on the
secondary ticket market. It purchases tickets from the SMG box office or from
Ticketmaster LLC, which is the only authorized third-party vendor for Superdome tickets.
Box Office Ticket Center, LLC then resells the tickets at a profit.
On July 31, 2016, Plaintiff Nancy Smith arrived at the Superdome with her
daughter Braeden Smith prior to the start of the concert. They entered the Superdome.
3
Neither Nancy Smith nor Braeden Smith testified as to the gate they used to enter the
Superdome. Upon entering the Superdome, they were directed to turn left to take the
elevators down to their ground floor seats. Plaintiff and her daughter turned left as
directed, but SMG staff denied them access to the three elevators they encountered in that
area. SMG staff did not inform Nancy Smith and Braeden Smith as to why they could not
use these elevators. Nancy Smith and Braeden Smith eventually were taken to the ground
floor, on a freight elevator, by a person who appeared to be a member of the backstage
crew.
When Nancy Smith and Braeden Smith reached the ground floor, they spoke to an
SMG staffer who guided them to their ticketed seats. They discovered the seats were not
wheelchair-accessible. Plaintiff told the staffer she had purchased wheelchair-accessible
seats and that she could not sit in the conventional seat for safety reasons. She asked the
staffer to remove the existing seat in the space, which was a folding metal chair, to permit
Plaintiff to put her wheelchair in the spot. The staffer refused and did not offer Plaintiff
the alternative of switching to a wheelchair-accessible seat. Plaintiff believed she had no
option but to transfer out of her wheelchair and into the conventional seat if she was going
to see the concert. The SMG staffer then took Plaintiff’s wheelchair to the left side of the
stage and placed it behind a barricade, out of Plaintiff’s line of sight.
During the concert, Plaintiff felt anxious, uneasy, and vulnerable because she was
not allowed to sit in her wheelchair and because she could not see where it was stored.
Plaintiff could not see the band on stage because her view was obstructed by others who
were standing. She had been excited about attending the concert, but the experience was
ruined for her. After the concert, Plaintiff’s wheelchair was returned to her.
4
Laurie Ducros, the SMG Guest Services Manager, offered testimony about SMG
policies. Under SMG policy, when an elevator at a concert leads to a private or restricted
area on the ground level, the elevator is restricted. Elevator operators are instructed not
to take any patrons to the ground level in restricted elevators. They are instructed to direct
patrons to the next available elevator.
The elevator policy is confirmed by the SMG ADA pamphlet, introduced as Exhibit
4 at trial. According to a map of the Superdome in the pamphlet, the Superdome has 17
elevators, numbered 1–14, 2A, 7A, and 8A. Thirteen of these elevators are accessible to
patrons with disabilities. The only elevators not accessible to patrons with disabilities are
Elevators 5, 10, 13, and 14, which are labeled on the map as “freight only.” Elevators 3, 4,
2A, 7A, and 8A do not service the ground level. This information is confirmed by a
printout from the Superdome website, which was introduced as Exhibit 7 at trial.
Superdome staff members are trained annually, prior to the beginning of the New
Orleans Saints football season. A portion of the training is devoted to accessibility for
disabled patrons and the requirements of the ADA. Staff members hired during the year
are required to attend a new hire orientation with similar information on SMG’s ADA
policies. Portions of the PowerPoint presentations SMG uses at these training sessions for
new hires were introduced at trial as Exhibits 4 and 5.
It is SMG’s usual practice and policy to reserve or “hold back” from sale a certain
number of ADA-compliant wheelchair-accessible seats in various areas of the Superdome
for use in case a disabled patron requests to be relocated on the day of a concert. If a
patron requests to transfer from a conventional seat to an accessible seat, the patron is
directed to the Guest Services Desk or Guest Relations Center, where the ticket may be
exchanged. The policy regarding holding back seats is posted on the Superdome website,
5
a printout of which was introduced at trial as Exhibit 7. For the Guns N’ Roses concert,
SMG sold approximately sixty (60) accessible seats and reserved or “held back”
approximately one hundred and fifty (150) accessible seats.
Under SMG’s ticket transfer policy, SMG staff members do not affirmatively offer
wheelchair users the relocation option because SMG does not wish to assume wheelchair
users who purchase tickets for conventional seats cannot use those seats. SMG staff only
offer the option when a wheelchair user informs an SMG staff member he or she cannot
get out of the wheelchair, cannot sit in the conventional chair, or would be uncomfortable
sitting in the conventional chair. 8
SMG’s policy with respect to wheelchair storage is that, when a staff member sees
a wheelchair user leaving a wheelchair on the Superdome concourse or in an aisle, the
staff member approaches the wheelchair user and informs the patron that the wheelchair
cannot be left on the concourse or in the aisle. The staff member then offers the patron
two options: either (1) to check the wheelchair at the Guest Relations Center at Gate A
and be wheeled to the conventional seat by SMG staff in an SMG wheelchair or (2) to have
a companion wheel the patron to his or her seat and then check the wheelchair at the
Guest Relations Center. SMG staff are trained to store the wheelchairs only at the Guest
Relations Center. The Superdome website states wheelchairs are available for checkout at
the Guest Relations Center at Gate A. 9
8 At trial, Ducros testified the policies are codified in the Team Member Playbook.” The Team Member
Playbook was not provided to the Plaintiff in the course of discovery and was not admitted as an exhibit at
trial. As a result, the Court does not consider it.
9 Ex. 7.
6
CONCLUSIONS OF LAW
I.
Title II
Plaintiff brings a claim against Defendant Kyle France, in his official capacity as
Chairman of the Board of Commissioners of the LSED, for injunctive relief under Title II
of the ADA. Because France is sued in his official capacity as Chairman of the Board of
Commissioners of the LSED, the claim for injunctive relief against him is, in effect, a claim
for injunctive relief against the LSED. 10
Title II prohibits discrimination by public entities, including the LSED. 11 Title II
provides, “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 12 Title
II authorizes monetary and injunctive relief. 13 The Fifth Circuit has listed the elements of
a claim under Title II as follows:
To succeed on a claim under Title II of the ADA, a plaintiff must prove: ‘(1)
that he has a qualifying disability; (2) that he is being denied the benefits of
services, programs, or activities for which the public entity is responsible,
or is otherwise discriminated against by the public entity; and (3) that such
discrimination is by reason of his disability.’ 14
See Kentucky v. Graham, 473 U.S. 159, 166–67 (1985) (“[A]n official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the
real party in interest is the entity.”) (emphasis in original).
11 Title II defines “public entity” as “any State or local government [or] any department, agency, special
purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(A),
(B).
12 42 U.S.C. § 12132.
13 42 U.S.C. § 12133 (incorporating remedies laid out in the Rehabilitation Act, which authorizes monetary
and injunctive relief).
14 Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) (quoting Hale v. King, 642 F.3d 492, 499 (5th Cir.
2011)). “To recover monetary damages, a plaintiff must prove that the discrimination was intentional.” Id.
(citing Delano–Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.2002)). Because Plaintiff does not bring
a claim for monetary damages, she need not prove intentional discrimination.
10
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A.
First Element
The ADA defines “disability” as “a physical or mental impairment that
substantially limits one or more major life activities of such individual.” 15 “[M]ajor life
activities include, but are not limited to, caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working.” 16 Title II
defines as “qualified individual with a disability” as “an individual with a disability who,
with or without reasonable modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the provision of auxiliary
aids and services, meets the essential eligibility requirements for the receipt of services or
the participation in programs or activities provided by a public entity.” 17 Plaintiff is a
qualified individual with a disability for purposes of Title II.
B.
Second Element
To establish the second element of her Title II claim, Plaintiff must show she was
“denied the benefits of services, programs, or activities” for which the LSED is
responsible, or was “otherwise discriminated against” by the LSED. 18
The LSED is a public entity subject to the requirements of Title II. 19 Although SMG
is responsible by contract for managing the Superdome, the LSED owns the Superdome.
The regulations implementing the ADA provide Title II “applies to all services, programs,
42 U.S.C. § 12102(1)(A).
Id. at § 12102(2)(A).
17 Id. at § 12131(2).
18 Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) (quoting Hale v. King, 642 F.3d 492, 499 (5th Cir.
2011)). “To recover monetary damages, a plaintiff must prove that the discrimination was intentional.” Id.
(citing Delano–Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.2002)). Because Plaintiff does not bring
a claim for monetary damages, she need not prove intentional discrimination.
19 Title II defines a “public entity” as “any department, agency, special purpose district, or other
instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(B).
15
16
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and activities provided or made available by public entities.” 20 The guidance interpreting
this section clarifies that “[a]ll governmental activities of public entities are covered, even
if they are carried out by contractors.” 21 As a result, although SMG was responsible for
operations at the Guns N’ Roses concert at the Superdome, the concert is an activity for
which the LSED is responsible.
In determining whether conduct by the LSED as a public entity constitutes a denial
of benefits of services, programs, or activities or otherwise discriminates, the Court must
consult regulations promulgated by the Attorney General. 22 In passing the ADA,
“Congress instructed the Attorney General to issue regulations implementing provisions
of Title II, including § 12132’s discrimination proscription.” 23 As the Supreme Court has
explained,
Because the Department [of Justice] is the agency directed by Congress to
issue regulations implementing Title II, its views warrant respect. We need
not inquire whether the degree of deference described in Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 24 is in order; it is enough
to observe that the well-reasoned views of the agencies implementing a
statute constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance. 25
Plaintiff is a wheelchair user who was not offered the option to transfer to a
wheelchair-accessible seat. The subpart of the Title II regulations entitled “General
Requirements” includes specific requirements for ticketing, including requirements for
individuals with disabilities who purchase tickets for non-wheelchair-accessible seats on
28 C.F.R. § 35.102(a).
28 C.F.R. pt. 35, app. B.
22 See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 592 (1999).
23 Id. at 591.
24 467 U.S. 837, 844 (1984); see also Wells, 460 F. App’x 303 at 312.
25 Olmstead, 527 U.S. at 597–98 (internal brackets, quotations, and citations omitted).
20
21
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the secondary ticket market. 26 The Court will address whether the LSED denied her the
benefits of the Guns ‘N Roses concert or otherwise discriminated against her by (1)
violating the regulatory provision regarding tickets sold on the secondary ticket market
or (2) deprived her of ready access to the Guns ‘N Roses concert. 27
1.
Regulatory Provision About Secondary Ticket Market
28 C.F.R. § 35.130(b)(7)(i) provides:
A public entity shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination
on the basis of disability, unless the public entity can demonstrate that
making the modifications would fundamentally alter the nature of the
service, program, or activity.
The regulations implementing Title II include a specific provision with respect to
providing access to wheelchair users who purchase tickets for non-wheelchair-accessible
seats on the secondary ticket market. 28 C.F.R. § 35.138(g)(2) provides:
If an individual with a disability acquires a ticket or series of tickets to an
inaccessible seat through the secondary market, a public entity shall make
reasonable modifications to its policies, practices, or procedures to allow the
individual to exchange his ticket for one to an accessible seat in a
comparable location if accessible seating is vacant at the time the individual
presents the ticket to the public entity.
This regulation was promulgated in 2010. 28 The guidance to the 2010 revisions to the
regulations implementing Title II explains:
As long as there are vacant wheelchair spaces, requiring venues to provide
wheelchair spaces for patrons who acquired inaccessible seats and need
wheelchair spaces is an example of a reasonable modification of a policy
under title II of the ADA. . . . Covered entities are not required to seat every
person who acquires a ticket for inaccessible seating but needs accessible
seating, and are not required to move any individual who acquires a ticket
In her Amended Complaint, Plaintiff does not allege a violation of this specific provision, but she alleges
the violation of nearly identical provisions in the regulations implementing Title III. R. Doc. 5 at 8, ¶ 38; 9,
¶ 40.
27 In her Amended Complaint, Plaintiff enumerates various regulatory provisions she alleges were violated.
Id. at 11, ¶ 52.
28 75 Fed. Reg. 56,180 (Sept. 15, 2010).
26
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for accessible seating but does not need it. Covered entities that allow
patrons to buy and sell tickets on the secondary market must make
reasonable modifications to their policies to allow persons with disabilities
to participate in secondary ticket transfers. The Department believes that
there is no one-size-fits-all rule that will suit all assembly areas. In those
circumstances where a venue has accessible seating vacant at the time an
individual with a disability who needs accessible seating presents his ticket
for inaccessible seating at the box office, the venue must allow the individual
to exchange his ticket for an accessible seat in a comparable location if such
an accessible seat is vacant. Where, however, a venue has sold all of its
accessible seating, the venue has no obligation to provide accessible seating
to the person with a disability who purchased an inaccessible seat on the
secondary market. Venues may encourage individuals with disabilities who
hold tickets for inaccessible seating to contact the box office before the event
to notify them of their need for accessible seating, even though they may not
require ticketholders to provide such notice. 29
The guidance explicitly adopts the holding of Independent Living Resources v.
Oregon Arena Corp., 30 the only federal court decision to address this issue. In
Independent Living, a Title III case, the court addressed in detail the method by which
wheelchair users were offered accessible seats. The court found:
On at least several occasions, wheelchair users who attempted to purchase
tickets for an event were told that no wheelchair tickets were available, even
though ambulatory patrons were able to purchase tickets for the same event.
On other occasions, wheelchair users were “steered” to distant corners of
the arena (such as Level 7) while ambulatory friends were able to purchase
good tickets for the same event. 31
Following a bench trial, the court in Independent Living found the ticket sale policy
“effectively preclude[d] wheelchair users from obtaining the same benefits available to
ambulatory patrons” by precluding them from “accepting a gift ticket, going to the game
with a friend who has an extra ticket, sharing a season ticket, purchasing a ticket for an
individual game from a season ticket holder, and similar options each of which is available
28 C.F.R. pt. 35, app. A.
1 F. Supp. 2d 1159, 1171 (D. Or. 1998).
31 Id. at 1169.
29
30
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to ambulatory patrons.” 32 The court stated that defendants “may not be active
participants in this secondary market, but that does not mean they can simply ignore its
existence,” particularly when it has “helped to create and to perpetuate this state of affairs
by the manner in which they have chosen to sell tickets.” 33 The court ordered the following
injunctive relief:
[W]heelchair users must have the same opportunity as other patrons to use
tickets acquired through the secondary market (e.g., going to the game with
a friend who has an extra ticket, using a complimentary ticket obtained from
an employer or family member, sharing a season ticket, purchasing a ticket
through the classifieds, etc.). Accordingly, although wheelchair users are
strongly encouraged to purchase tickets for wheelchair spaces when
available, if an individual needing a wheelchair space arrives at a game or
other event with a ticket for a conventional seat, that individual must be
seated in an equivalent or better wheelchair space. 34
In the instant case, Plaintiff bought her ticket from Box Office Ticket Center LLC
on the secondary ticket market. Plaintiff told the SMG staffer she had purchased a ticket
for a wheelchair-accessible seat and that she did not want to sit in the conventional seat
for safety reasons. She asked the staffer to remove the existing seat in the space, which
was a folding metal chair, to permit Plaintiff to put her wheelchair in the spot. The staffer
refused, but did not offer Plaintiff the alternative of moving to a wheelchair-accessible
seat. Title II regulations explicitly state that transferring patrons with disabilities to
wheelchair-accessible seating is a reasonable modification. Although the guidance
accompanying the regulation states “there is no one-size-fits-all rule that will suit all
assembly areas,” it also states a venue “must allow the individual to exchange [her] ticket
for an accessible seat in a comparable location if such an accessible seat is vacant.” 35 In
Id. at 1170.
Id.
34 Id. at 1171.
35 28 C.F.R. pt. 35, app. A. (emphasis added).
32
33
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this case, Plaintiff was not given the option of exchanging her ticket for an accessible seat.
SMG failed to make the reasonable modifications to its policies, practices, or procedures
required by the Title II regulations.
Unlike in Independent Living, in which it was clear the defendant failed to modify
its policies, the Court is unable to ascertain whether the SMG staffer’s actions were a result
of SMG’s failure to modify its policies or the staffer’s lack of training on existing policies.
Title II regulations require reasonable modifications not only to policies, but also to
procedures and practices. Regardless of whether the staffer’s actions were a result of the
absence of a clear policy or to a failure to train staff members on a policy, SMG failed to
modify its policies, practices, and procedures to allow Plaintiff to exchange her ticket, in
violation of 28 C.F.R. § 35.138(g)(2). The LSED is responsible for SMG’s failure. Plaintiff
has established the second element of her Title II claim by showing that the LSED denied
her the benefits of an activity for which it was responsible by violating 28 C.F.R.
§ 35.138(g)(2).
2.
Program Accessibility
As another basis for the second element of Plaintiff’s Title II claim, Plaintiff argues
the LSED discriminated against her because the Guns N’ Roses concert was not readily
accessible to her. 28 C.F.R. § 35.150(a) provides:
A public entity shall operate each service, program, or activity so that the
service, program, or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities.
Failure to operate a program so that it is readily accessible to individuals with disabilities
constitutes discrimination.
In Greer v. Richardson Independent School District, the plaintiff could not access
the bleachers at a high school football game because they were not wheelchair13
accessible. 36 She watched the game in an accessible paved area adjacent to the
bleachers. 37 The Fifth Circuit explained that “the regulations do not provide any objective
criteria for evaluating program accessibility. . . . [P]rogram accessibility is ultimately a
subjective determination [made] by viewing the program or activity at issue in its entirety
and not solely by evaluating individual elements of the facility where the program is
held.” 38 The court found that, even though the bleachers were not accessible to
wheelchairs, the school district provided program accessibility to wheelchair users
because the school district provided accommodations that allowed wheelchair users to
enjoy football games. 39 The court found significant the fact the plaintiff did not seek
accommodations, stating, “There is a common sense aspect to determining whether a
public entity has provided accommodations for a disabled individual, part of which
requires the public entity be made aware of the inadequacy of the accommodations
provided.” 40 The court held, “when a disabled individual such as Greer attends one event
at a venue she was otherwise unfamiliar with, that person does not by default gain a prima
facie case of discrimination under Title II merely because she is dissatisfied with her
seating location and makes no effort to ask the venue's staff as to where alternative
accessible seating is located or if she and her family can be accommodated.” 41
In this case, Plaintiff told an SMG staffer that she had intended to purchase a
wheelchair-accessible seat and thought she had done so, because she did not want to sit
in a conventional seat for safety reasons. Although she did not specifically request a
472 F. App’x 287, 288 (5th Cir. 2012) (unpublished).
Id.
38 Id. at 291–92 (emphasis added).
39 Id. at 295.
40 Id. at 296.
41 Id.
36
37
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transfer to an accessible seat, she did request the accommodation of removing the
conventional seat and putting her wheelchair in its place. Although her requested
accommodation could not be granted, the SMG staffer could have otherwise
accommodated her disability by offering her the option to transfer to an accessible seat.
Instead, she required that Plaintiff sit in the conventional seat and took her wheelchair
away from her. Unlike the plaintiff in Greer, Smith did interact with a staffer and request
an accommodation. She also expressed her concern about the SMG staffer’s taking away
her wheelchair. Unlike in Greer, in which the plaintiff was still able to watch the football
game, Smith’s view was obstructed by standing patrons during most of the concert, and
she was unable to enjoy the concert because of her anxiety about her personal safety and
about the security of her wheelchair. As a result, the Court finds, when the activity is
viewed in its entirety, the Guns N’ Roses concert was not readily accessible to Plaintiff. As
another basis for the second element of her Title II claim, Plaintiff has shown SMG denied
her ready access to the Guns N’ Roses concert.
Plaintiff also argues she was denied ready access to the Superdome elevators,
which contributed to her inability to access the concert. The Court does not agree. Plaintiff
testified she was denied access to three elevators, but she ultimately was taken down to
the ground floor in a freight elevator by a crew member. No lack of access to elevators
prevented her from accessing the Guns ‘N Roses concert.
Ducros testified that SMG restricts access to some elevators during concerts
because the elevators lead to areas on the ground level that are not accessible to the public.
She speculated that the elevators to which Plaintiff was denied access may have been
restricted. No party introduced evidence on the record or elicited testimony about which
elevators Plaintiff attempted to use and whether the public was denied access to these
15
elevators. According to the SMG ADA pamphlet and the Superdome website, 42 four of the
Superdome’s 17 elevators are freight only, and another five do not service the ground level.
Eight of the Superdome’s 17 elevators service the ground level and may be used by
wheelchair users. Based on the testimony at trial, it is unclear whether Plaintiff was not
allowed to use the elevators because of her disability, because the elevators themselves
were restricted to freight only, because the elevators were off-limits entirely to the public,
or because the elevators did not service the ground level.
C.
Third Element
In determining whether discrimination is by reason of disability, a plaintiff must
provide “proof that ‘the disability and its consequential limitations were known by the
entity providing public services.’” 43 In Windham v. Harris Cty., Texas, the Fifth Circuit
explained this requirement as follows:
Mere knowledge of the disability is not enough; the service provider must
also have understood the limitations the plaintiff experienced as a result of
that disability. Otherwise, it would be impossible for the provider to
ascertain whether an accommodation is needed at all, much less identify an
accommodation that would be reasonable under the circumstances. Thus,
because the ADA does not require clairvoyance, the burden falls on the
plaintiff to specifically identify the disability and resulting limitations, and
to request an accommodation in direct and specific terms. When a plaintiff
fails to request an accommodation in this manner, he can prevail only by
showing that the disability, resulting limitation, and necessary reasonable
accommodation were open, obvious, and apparent to the entity’s relevant
agents. 44
In this case, Plaintiff requested an accommodation and made clear she was
concerned about sitting in a conventional seat without her wheelchair. Furthermore, the
Court finds it was open, obvious, and apparent Plaintiff was an amputee whose mobility
Exs. 4, 7.
Windham v. Harris Cty., Texas, 875 F.3d 229, 236 (5th Cir. 2017) (quoting Jin Choi v. Univ. of Tex.
Health Sci. Ctr. at San Antonio, 633 F. App’x 214, 215 (5th Cir. 2015)) (internal brackets omitted).
44 Id. at 236–37 (internal quotations, ellipsis, and citations omitted) (emphasis in original).
42
43
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was limited and that it would be difficult for her to use a conventional concert seat and
needed an accommodation. As a result, Plaintiff has established the third element of her
Title II claim.
Plaintiff has established the elements of her Title II claim that the LSED, through
its contractor SMG, discriminated against her. Plaintiff was a qualified individual with a
disability. Plaintiff was denied the benefits of the Guns ‘N Roses concert and
discriminated against because the SMG did not make reasonable modifications to its
ticketing policies, procedures, and practices and the concert was not readily accessible to
her. The discrimination was by reason of disability, as Plaintiff’s disability and its
resulting limitations were open, obvious, and apparent.
The defendant in a Title II case “may assert an affirmative defense by showing that
the requested actions would constitute an undue financial or administrative burden.” 45
Defendants have presented no evidence that it would fundamentally alter the nature of
the program or constitute an undue burden to modify its policies to allow individuals with
disabilities who purchase tickets on the secondary market who object to sitting in
conventional seats have the opportunity to transfer to an accessible seat or to make
activities at the Superdome readily accessible to people with disabilities. Because Plaintiff
has established the elements of her claim, and Defendants have not asserted an
affirmative defense, Plaintiff has established a Title II violation against France in his
official capacity as Chairman of the Board of Commissioners of the LSED.
45
Greer, 472 F. App’x at 292 (citing 28 C.F.R. § 35.150(a)(3)).
17
II.
Title III
Plaintiff brings a claim for injunctive relief against SMG under Title III. Title III
provides, “No individual shall be discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns, leases
(or leases to), or operates a place of public accommodation.” 46 The statute specifies that
it is discriminatory to afford people with disabilities “the opportunity to participate in or
benefit from a good, service, facility, privilege, advantage, or accommodation that is not
equal to that afforded to other individuals.” 47 It also states discrimination may include:
a failure to make reasonable modifications in policies, practices, or
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 would fundamentally alter the nature of such goods,
services, facilities, privileges, advantages, or accommodations. 48
To establish a Title III violation, a plaintiff must show “(1) she has a disability; (2)
Defendant owned, leased, or operated a place of public accommodation; and (3)
Defendant denied Plaintiff full and equal enjoyment on the basis of her disability.” 49
Plaintiff is a qualified individual with a disability for purposes of the ADA. SMG is
a private entity that operates the Superdome, which is a place of public accommodation.
As a result, the first two elements are satisfied. The Court turns to whether SMG denied
Plaintiff full and equal enjoyment of the concert on the basis of her disability.
42 U.S.C. § 12182(a).
Id. at § 12182(b)(1)(A)(ii).
48 Id. at § 12181(b)(2)(A)(ii).
49 Doe v. Ortho-La Holdings, LLC, No. CV 17-8948, 2018 WL 4613946, at *2 (E.D. La. Sept. 26, 2018)
(Milazzo, J.); see also Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008); Molski v. M.J. Cable,
Inc., 481 F.3d 724, 730 (9th Cir. 2007); Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir.
2006); Burrell v. Akinola, No. 3:15-CV-3568-B, 2016 WL 3523781, at *2 (N.D. Tex. June 27, 2016); Deutsh
v. Wehbe, No. 1-15-CV-702 RP, 2015 WL 6830920, at *1 (W.D. Tex. Nov. 6, 2015); United States v.
Morvant, 898 F. Supp. 1157, 1161 (E.D. La. 1995).
46
47
18
The regulations implementing Title III provide:
A public accommodation shall not afford an individual or class of
individuals, on the basis of a disability or disabilities of such individual or
class, directly, or through contractual, licensing, or other arrangements,
with the opportunity to participate in or benefit from a good, service,
facility, privilege, advantage, or accommodation that is not equal to that
afforded to other individuals. 50
This language parallels the language of 28 C.F.R. § 35.130(b)(1)(ii), in the regulations
implementing Title II. In light of the similarities among the regulations implementing the
Titles of the ADA, the Fifth Circuit has stated it finds “no basis for distinguishing their
respective burdens of proof.” 51
The Court applies the same burden of proof as under Title II. Like the regulations
implementing Title II, the regulations implementing Title III include the following
provision pertaining to seats sold on the secondary ticket market:
(i) A public accommodation shall modify its policies, practices, or
procedures to ensure that an individual with a disability may use a ticket
acquired in the secondary ticket market under the same terms and
conditions as other individuals who hold a ticket acquired in the secondary
ticket market for the same event or series of events.
(ii) If an individual with a disability acquires a ticket or series of tickets to
an inaccessible seat through the secondary market, a public accommodation
shall make reasonable modifications to its policies, practices, or procedures
to allow the individual to exchange his ticket for one to an accessible seat in
a comparable location if accessible seating is vacant at the time the
individual presents the ticket to the public accommodation. 52
These requirements are substantially identical to the requirements of the Title II
regulations. The guidance interpreting this provision also is substantially identical to the
guidance interpreting the Title II regulation on tickets sold on the secondary ticket
28 C.F.R. § 36.202(b).
Gambrinus Co., 116 F.3d at 1059.
52 28 C.F.R. § 36.302(f)(7).
50
51
19
market. 53 For the same reasons the Court found the SMG staffer’s failure affirmatively to
offer Plaintiff the option to transfer to an accessible seat violated the Title II regulations,
the Court finds the staffer’s failure to offer this option also violated the Title III
regulations.
As a result, with respect to the third element of Plaintiff’s Title III claim, the Court
finds Plaintiff was denied the full and equal enjoyment of the Guns N’ Roses concert.
However, the Court also finds Plaintiff has not shown that any difficulty she experienced
accessing elevators contributed to a denial of equal enjoyment of the concert.
Plaintiff has established the elements of her Title III claim. SMG has not raised the
affirmative defense of undue hardship. 54 As a result, Plaintiff has established a Title III
violation against SMG.
III.
LHRA
Plaintiff brings a claim for damages against SMG under the LHRA. 55 The LHRA
makes it “a discriminatory practice for a person to deny an individual the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and accommodations
of a place of public accommodation, resort, or amusement,” on the grounds of disability. 56
A “discriminatory practice in connection with public accommodations” is defined, in
relevant part, as “any direct or indirect act or practice of exclusion, distinction, restriction,
segregation, limitation, refusal, denial, or any other act or practice of differentiation or
preference in the treatment of a person” because of disability. 57 Plaintiff has a disability
Compare 28 C.F.R. pt. 36, app. A to 28 C.F.R. pt. 35, app. B.
See Gambrinus Co., 116 F.3d at 1059 (discussing undue hardship defense under Title III).
55 LA. REV. STAT. § 51:2231, et seq. Plaintiff brought the claim against all Defendants, R. Doc. 5 at 16–17, but
subsequently moved to dismiss with prejudice her claim as against the LSED and France, R. Doc. 60,
granted R. Doc. 62. See R. Doc. 70 at 1 (listing remaining claims).
56 LA. REV. STAT. § 51:2247.
57 Id. at § 51:2232(5).
53
54
20
within the meaning of the LHRA. 58 The Superdome is a place of public accommodation
under the LHRA. 59 The only remaining issue is whether SMG engaged in a
“discriminatory practice in connection with public accommodations” by engaging in “any
direct or indirect act or practice of exclusion, distinction, restriction, segregation,
limitation, refusal, denial, or any other act or practice of differentiation or preference”
because of Plaintiff’s disability. 60
No other court has interpreted the LHRA’s definition of “discriminatory practice”
in the context of disability discrimination. The LHRA establishes the Louisiana
Commission on Human Rights, which has the power to “adopt, promulgate, amend, and
rescind rules and regulations to effectuate the purposes and provisions” of the LHRA, 61
but the Commission has not done so. Because of this lack of governing legal authority, the
Court must determine the relevant legal standard under the LHRA. The Court notes the
LHRA’s statement of purpose expresses the following legislative intent:
58
LA. REV. STAT. § 51:2247. The LHRA provides the following definition of disability:
(3)(a) “Disability” means a physical or mental impairment that substantially limits one or
more of the major life activities of the individual, a record of such impairment, or being
regarded as having such an impairment. For purposes of all laws which incorporate by
reference, apply to, or rely for meaning upon the term disability as defined herein, the
terms used in this definition have the following meanings:
(i) “Physical impairment” means any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory, including speech organs,
cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and
endocrine.
...
(iii) “Major life activities” includes functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
LA. REV. STAT. § 51:2232(3)(a).
59 The LHRA defines “place of public accommodation” as “any place, store, or other establishment, either
licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts
the patronage or trade of the general public, or which is supported directly or indirectly by government
funds.” LA. REV. STAT. § 51:2232(9).
60 Id. at § 51:2232(5).
61 LA. REV. STAT. § 51:2235.
21
[T]o provide for execution within Louisiana of the policies embodied in the
Federal Civil Rights Act of 1964, 1968, and 1972 and the Age Discrimination
in Employment Act of 1967; . . . ; to safeguard all individuals within the state
from discrimination because of . . . disability . . . in connection with
employment and in connection with public accommodations; [and] to
protect their interest in personal dignity and freedom from humiliation. 62
The Louisiana Legislature passed the LHRA in 1988.63 As originally enacted, the Act did
not prohibit discrimination on the basis of disability. 64 Congress enacted the ADA in
1990. 65 In 1993, the Louisiana Legislature amended the LHRA to cover disability
discrimination, but did not change the LHRA’s statement of purpose to state it provided
for the execution of the policies embodied in the ADA, as well as the Civil Rights Act of
1964, 1968, and 1972 and the Age Discrimination in Employment Act. 66
The Fifth Circuit has noted the LHRA is “substantively similar to Title II of the Civil
Rights Act of 1964, 42 U.S.C. § 2000a(a).” 67 The LHRA guarantees “the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and accommodations
of a place of public accommodation, resort, or amusement.” 68 Title II of the Civil Rights
Act of 1964 similarly guarantees “the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination or segregation on the
ground of race, color, religion, or national origin.” 69 Title III of the ADA, which prohibits
discrimination by public accommodations operated by private entities like SMG, also
guarantees “the full and equal enjoyment of the goods, services, facilities, privileges,
LA. REV. STAT. at § 51:2231(A).
Act No. 886, 1988 La. Acts 2240 (1988) (codified as amended at LA. REV. STAT. § 51:2231 et seq.).
64 LA. REV. STAT. § 51:2247 (1988) (amended 1993).
65 Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. § 12101 et seq.).
66 Act No. 820, 1993 La. Acts 2143 (1993).
67 Semien v. Pizza Hut of Am., Inc., 204 F.3d 1115 (5th Cir. 1999).
68 LA. REV. STAT. § 51:2247.
69 42 U.S.C. § 2000a(a).
62
63
22
advantages, or accommodations of any place of public accommodation” without
discrimination on the basis of disability. 70
Based on the similarities between the LHRA and federal antidiscrimination
statutes and the Louisiana legislature’s explicit reference to federal antidiscrimination
law in the LHRA’s statement of purpose, the Court holds the LHRA incorporates the
definition of disability discrimination found in Title III of the ADA. 71 The Court applies
the ADA definition to Plaintiff’s LHRA claim against SMG. For the same reasons that the
Court found SMG denied Plaintiff the full and equal enjoyment of the Guns N’ Roses
concert under Title III, the Court finds SMG denied Plaintiff the full and equal enjoyment
of the Guns N’ Roses concert, in violation of the LHRA.
IV.
A.
Relief
Damages
Plaintiff seeks nominal damages and compensatory damages for emotional
distress against SMG under the LHRA.
LA. REV. STAT. § 51:2264, governing remedies under the LHRA, provides:
Any person deeming himself injured by any alleged violation of the
provisions of this Chapter shall have a civil cause of action in district court
to enjoin further violations and to recover the actual damages sustained by
him, together with the costs of court and a reasonable fee for his attorney of
record, all of which shall be in addition to any other remedies contained in
this Chapter.
42 U.S.C. § 12182(a).
When the Louisiana Supreme Court has not addressed an issue of state law interpretation, the Court must
“make an Erie guess and determine . . . how that court would resolve the issue if presented with the same
case.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (citing Am. Int’l Specialty
Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003)). When making this guess, the Court
“employ[s] Louisiana’s civilian methodology, whereby [it] first examine[s] primary sources of law: the
constitution, codes, and statutes.” Id. The Court is confident the Louisiana Supreme Court would also reach
the conclusion the LHRA incorporates the ADA’s definition of discrimination.
70
71
23
Although Plaintiff is not able to recover damages from SMG under Title III, she
may recover from SMG under the statutory text of the LHRA.
At trial, Plaintiff testified she felt anxiety during the concert. She felt trapped and
helpless because she was concerned about what would happen if there were an
emergency. She had been looking forward to the concert, but she was unable to enjoy it
because of the distress she experienced. The testimony of Braeden Smith corroborates
and buttresses Plaintiff’s testimony. The Court awards Plaintiff $20,000 in compensatory
damages for emotional distress. Because the Court awards compensatory damages, it
need not award nominal damages.
B.
Injunctive Relief
Plaintiff seeks injunctive relief under Title II of the ADA against France, in his
official capacity as Chairman of the Board of Commissioners of the LSED, and under Title
III of the ADA against SMG. Plaintiff seeks an injunction requiring Defendants to do the
following:
(1) train SMG staff members on SMG’s policy that gives priority for elevator use to
patrons with disabilities over other patrons and SMG employees,
(2) adopt a written policy and train employees on the policy requiring that, when a
wheelchair user with a ticket for a conventional seat objects to or indicates a
desire not to sit in the conventional seat, the SMG employee affirmatively offer
the wheelchair user the option to exchange his or her ticket for a ticket for a
wheelchair-accessible seat, and
(3) adopt a written policy and train employees on the policy requiring that, when
an SMG employee informs a wheelchair user that leaving a wheelchair on the
Superdome concourse is not permitted, the employee also inform the
24
wheelchair user about the availability of wheelchair check-in and storage at the
Guest Relations Center at the Mercedes-Benz Superdome (“Superdome”).
Title II incorporates by reference the remedies of the Rehabilitation Act, which
authorizes injunctive relief. 72 Title III incorporates by reference the remedies of the Civil
Rights Act of 1964, which also authorizes injunctive relief. 73
The Supreme Court has established the following requirements for plaintiffs
seeking permanent injunctions in general:
According to well-established principles of equity, a plaintiff seeking a
permanent injunction must satisfy a four-factor test before a court may
grant such relief. A plaintiff must demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that, considering
the balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be disserved
by a permanent injunction. 74
The Supreme Court has explained the balancing tests and the flexibility granted to the
district courts in determining whether to grant an injunction:
In exercising their sound discretion, courts of equity should pay particular
regard for the public consequences in employing the extraordinary remedy
of injunction. . . . The grant of jurisdiction to ensure compliance with a
statute hardly suggests an absolute duty to do so under any and all
circumstances, and a federal judge sitting as chancellor is not mechanically
obligated to grant an injunction for every violation of law. 75
The Fifth Circuit has not addressed the standard for determining entitlement to
injunctive relief under the ADA. Other circuits have found that the traditional equitable
considerations listed above apply. 76 Under this test, Smith must show (1) she suffered an
42 U.S.C. § 12133 (incorporating by reference 29 U.S.C. § 794a).
42 U.S.C. § 12188(a)(1) (incorporating by reference 42 U.S.C. § 2000a-3(a)).
74 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
75 Weinberger v. Romero-Barcelo, 456 U.S. 305, 312–13 (1982).
76 See, e.g., C.B. v. Bd. of Sch. Comm'rs of Mobile Co., AL, 261 F. App'x 192, 194 (11th Cir. 2008) (“[U]nless
a statute clearly mandates injunctive relief for a particular set of circumstances, the courts are to employ
traditional equitable considerations (including irreparable harm) in deciding whether to grant such relief.”)
(quoting Bedrossian v. Northwestern Mem. Hosp., 409 F.3d 840, 843 (7th Cir.2005)); Midgett v. Tri-Cty.
72
73
25
irreparable injury in violation of Titles II and III; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that injury; (3) that, considering
the balance of hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a permanent
injunction.
The Court finds the cases from the other circuits persuasive and adopts this test.
As set forth below, the Court analyzes the Title II and Title III violations jointly for the
first three factors and finds the factors weigh in favor of injunctive relief. As for the fourth
factor, the Court analyzes the Title II claim against France in his official capacity
separately from the Title III claim against SMG because injunctions against state entities
implicate concerns of federalism and comity.
With respect to the first factor, the Court has found Smith has shown violations of
Titles II and III. Specifically, the Court has found (1) the SMG staffer’s failure to offer
Plaintiff the option to transfer to a wheelchair-accessible seat reflects SMG’s failure to
modify policies, practices, and procedures to accommodate individuals who purchase
non-accessible seats on the secondary ticket market, in violation of Titles II and III, and
(2) the SMG staffer’s failure to offer Plaintiff a transfer and depriving her of her
wheelchair denied Plaintiff equal access to and enjoyment of the program, in violation of
Titles II and III.
“[F]or an injunction to issue based on a past violation, [a plaintiff] must establish
that there is ‘a real or immediate threat that [s]he will be wronged again.’” 77 In its order
Metro. Transp. Dist. of Oregon, 254 F.3d 846, 850 (9th Cir. 2001) (“In order to be entitled to an injunction
[under Title II], Plaintiff must make a showing that he faces a real or immediate threat of substantial or
irreparable injury.”).
77 Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000) (quoting Plumley v. Landmark Chevrolet, Inc.,
122 F.3d 308, 312 (5th Cir.1997)).
26
on the parties’ cross-motions for summary judgment with respect to whether Plaintiff had
standing to seek injunctive relief under Titles II and III of the ADA, the Court found
Plaintiff had standing to seek injunctive relief because she has demonstrated both that
she had been deterred from attending concerts because of her experience and that she
still intended to return to the Superdome in the future. 78 For the reasons stated in that
order, the Court finds Plaintiff has demonstrated a real threat she will be wronged again,
and she has established an irreparable injury.
With respect to the second factor, whether the injury may be compensated by other
remedies at law, the Court has awarded monetary damages under the LHRA to
compensate Plaintiff for her past emotional distress. This relief does not address the
prospect of future harm to the Plaintiff. Moreover, the Court has not awarded relief for
the ADA violations. “[W]hen a court of equity exercises its discretion, it may not consider
the advantages and disadvantages of nonenforcement of the statute, but only the
advantages and disadvantages of ‘employing the extraordinary remedy of injunction,’
over the other available methods of enforcement.” 79 As a result, the Court finds Plaintiff’s
injury are not adequately compensated by other remedies at law.
With respect to the third factor, the balance of hardships between Plaintiff and
Defendants, the Court finds that any equitable remedies requiring modifications of
policies or training programs do not present a significant hardship to Defendants.
With respect to the final factor, the public interest, the Court analyzes Plaintiff’s
claim against France, in his official capacity as Chairman of the Board of the LSED,
separately from her claim against SMG. For injunctive relief against France under Title
78
79
R. Doc. 87.
United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 497–98 (2001).
27
II, in cases in which a plaintiff seeks injunctive relief against a state governmental entity,
concerns of federalism and comity weigh against granting injunctive relief. 80 This
includes cases “against those in charge of an executive branch of an agency of state or
local governments.” 81
However, Title II explicitly authorizes injunctive relief against public entities. 82
Courts have granted permanent injunctive relief against public entities that discriminate
on the basis of disability. 83 The Court has found the LSED violated Title II in a case
involving access to a place of public accommodation. Although the Court is mindful of the
issues of federalism and comity implicated by ordering injunctive relief against LSED, the
Court finds such relief is necessary to remedy the irreparable harm Plaintiff suffered.
The Court turns to the analysis of the fourth factor, the public interest, with respect
to SMG’s Title III violation. Injunctive relief against SMG to remedy its Title III violation,
unlike injunctive relief against the LSED, does not implicate concerns of federalism or
comity. The Court also orders injunctive relief against Defendant SMG. The parties must
meet and confer to attempt to agree on the appropriate injunctive relief.
C.
Attorney’s Fees and Costs
“Under the ADA, a court ‘may allow the prevailing party a reasonable attorney’s
fee, including litigation expenses, and costs.’” 84 “The ADA’s fee-shifting provision is
See Rizzo v. Goode, 423 U.S. 362, 379 (1976).
Id. at 380; see also Casas v. City of El Paso, 502 F. Supp. 2d 542, 550 (W.D. Tex. 2007) (denying
injunctive relief against municipality because of federalism concerns); Midgett, 254 F.3d at 850 (same).
82 42 U.S.C. § 12133 (incorporating by reference 29 U.S.C. § 794a).
83 See, e.g., Chaffin, 348 F.3d 850; Indep. Living Resources, 1 F. Supp. 2d 1159.
84 Shelton v. Louisiana State, 919 F.3d 325, 328 (5th Cir. 2019) (quoting 42 U.S.C. § 12205) (internal ellipsis
omitted).
80
81
28
interpreted under the same legal standard as the similar provision in 42 U.S.C.
§ 1988.” 85 The Supreme Court has explained attorney’s fees under § 1988 as follows:
[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least
some relief on the merits of his claim. The plaintiff must obtain an
enforceable judgment against the defendant from whom fees are sought or
comparable relief through a consent decree or settlement. Whatever relief
the plaintiff secures must directly benefit him at the time of the judgment
or settlement. . . . In short, a plaintiff “prevails” when actual relief on the
merits of his claim materially alters the legal relationship between the
parties by modifying the defendant’s behavior in a way that directly benefits
the plaintiff. 86
Similarly, the LHRA permits plaintiffs to recover “the costs of court and a reasonable fee
for his attorney of record.” 87
Plaintiff is a prevailing party on her Title II claim against France, in his official
capacity, and her Title III and LHRA claims against SMG. The Court awards Plaintiff
attorneys’ fees against SMG and against France, in his official capacity. Plaintiff’s counsel
must file a motion for determination of the amount of attorneys’ fees within 10 days of
the issuance of these Findings of Fact and Conclusions of Law.
CONCLUSION
Based on the above Findings of Fact and Conclusions of Law, the Court finds that
Plaintiff Nancy Smith is entitled to recover from Defendant SMG $20,000 in damages for
emotional distress. The Court further finds Plaintiff is entitled to injunctive relief,
attorneys’ fees, and costs against SMG and against Defendant Kyle France, in his official
capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and
Exposition District. The Court will enter a judgment to that effect by separate order.
Id. (citing No Barriers, Inc. v. Brinker Chili’s Texas, Inc., 262 F.3d 496, 498 (5th Cir. 2001)).
Farrar v. Hobby, 506 U.S. 103, 111–12 (1992).
87 LA. REV. STAT. § 51:2264.
85
86
29
IT IS ORDERED that the parties meet and confer to attempt to agree on the
appropriate injunctive relief. The parties will file jointly, within 30 days of the issuance of
these findings of fact and conclusions of law, a proposed consent judgment addressing
how SMG and the Louisiana Stadium and Exposition District will ensure their policies
and procedures provide that:
(1) when a wheelchair user with a ticket for a conventional seat objects to or
indicates a desire not to sit in the conventional seat, an SMG employee will
affirmatively offer the wheelchair user the option to exchange his or her ticket
for a ticket for a wheelchair-accessible seat;
(2) when an SMG employee informs a wheelchair user that leaving a wheelchair on
the Superdome concourse is not permitted, the employee also will inform the
wheelchair user about the availability of wheelchair check-in and storage at the
Guest Relations Center at the Mercedes-Benz Superdome; and
(3) SMG employees are adequately trained on these policies.
IT IS FURTHER ORDERED that counsel for Plaintiff Nancy Smith file a motion
for determination of the amount of attorneys’ fees by no later than Thursday, May 23,
2019 at 5:00 p.m.
New Orleans, Louisiana, this 14th day of May, 2019.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
30
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