Bailey v. Board of Commissioners of the Louisiana Stadium and Exposition District, et al

Filing 181

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND REASONS FOR JUDGMENT: IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Defendants SMG and Kyle France, in his official capacity, and against Plaintiff, Shelby Bailey, dismissing Plaintiff's claims with prejudice, as set forth in document. Signed by Chief Judge Nannette Jolivette Brown on 9/4/2020.(jls)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHELBY BAILEY

CIVIL ACTION

VERSUS

CASE NO. 18-5888

BOARD OF COMMISSIONERS OF THE LOUISIANA
STADIUM AND EXPOSITION DISTRICT, ET AL.

SECTION: “G”(2)

FINDINGS OF FACT, CONCLUSIONS OF LAW AND REASONS FOR JUDGMENT
This matter came before this Court for trial without a jury on March 2, 2020 through March
3, 2020. The Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1331, which
confers on the federal district courts original jurisdiction over all civil actions arising under the
Constitution, laws, or treaties of the United States. Venue is proper in this Court under 28 U.S.C.
§ 1391(b), as the Superdome is located in this district. The substantive law applicable to this case
is the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation
Act, 29 U.S.C. §794, et seq.
The Court has carefully considered the testimony of all of the witnesses and the exhibits
entered into evidence during the trial, as well as the record. After reviewing all of the evidence and
pursuant to Federal Rule of Civil Procedure Rule 52(a), the Court issues the following findings of
fact and conclusions of law. To the extent that any finding of fact may be construed as a conclusion
of law, the Court hereby adopts it as such and to the extent that any conclusion of law constitutes
a finding of fact, the Court hereby adopts it as such.
For the reasons that follow, the Court finds that Plaintiff Shelby Bailey has failed to carry
his burden of proving that Defendants SMG and Kyle France, in his official capacity, violated the
Americans with Disabilities Act and/or the Rehabilitation Act. The Court is mindful that this result

1

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leaves Plaintiff with “limited seating choices . . . in less than ideal locations.”1 However, the
dictates of the ADA do not require otherwise. Thus, the Court’s decision is compelled by the
following findings of fact and conclusions of law, in particular, the structural limitations of the
stadium’s design, existing ADA regulations and guidelines, and case law.2
I.
A.

Background

Factual Background
On June 14, 2018, Plaintiff filed a Complaint in this Court naming as defendants SMG as

the operator of the Superdome, the Board of Commissioners of the Louisiana Stadium and
Exposition District (the “Board”) as the owner of the Superdome, and Kyle France (“France”) in
his official capacity as chairman of the Board.3 Plaintiff brings claims against the Board and France
for declaratory and injunctive relief pursuant to Title II of the Americans With Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, 29 U.S.C. §794, et seq.4 Plaintiff
brings claims against SMG for declaratory and injunctive relief pursuant to Title III of the ADA.5
Plaintiff also seeks recovery of attorneys’ fees and costs.6
According to the Complaint, Plaintiff has a disability and relies on an electric wheelchair
for mobility.7 Plaintiff alleges that he has been a Saints season ticket holder for over 30 years.8

1

Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., No. 2:18-CV-01512BJR, 2019 WL 7157165, at *25 (W.D. Wash. Dec. 3, 2019).
2

See id.

3

Rec. Doc. 1.

4

Id. at 1–2.

5

Id. at 2.

6

Id.

7

Id. at 4.

8

Id.

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Plaintiff alleges that prior to 2011, his seat was located on a wheelchair accessible raised platform
in the 100 Level section of the Superdome.9 Plaintiff alleges that in 2011, Defendants began
extensive renovations on the Superdome and reconfigured the accessible seating section for
patrons with disabilities.10 Plaintiff alleges that as a result of the renovations, the wheelchair
accessible seating at the Superdome was moved to other positions where the views are obstructed
by barriers and other patrons or players standing during the game, or the seating is not fully
accessible by wheelchair.11
Plaintiff alleges that Defendants have been on notice of ongoing accessibility issues for
many years.12 According to the Complaint, in 2008 the United States Department of Justice
conducted an inspection of the Superdome and issued a report detailing violations of ADA
regulations.13 Additionally, Plaintiff alleges that Defendants were sued by private litigants in 2018
regarding ongoing accessibility violations.14
As a result, Plaintiff alleges that Defendants have failed to comply with various parts of
the ADA and Rehabilitation Act.15 Plaintiff seeks compensatory and nominal damages along with
declaratory and injunctive relief, and attorneys’ fees.16

9

Id.

10

Id.

11

Id. at 4–8.

12

Id. at 10.

13

Id.

14

Id. at 10–11.

15

Id. at 11–29.

16

Id. at 1.

3

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B.

Procedural Background
On December 13, 2019, the Court granted in part and denied in part Defendant SMG’s

Motion for Judgment on the Pleadings.17 Accepting as true the allegations in the Complaint, the
Court found that SMG could be held liable as an operator of the Superdome because SMG controls
modification of the Superdome and could cause the Superdome to comply with the ADA.18
Additionally, viewing the allegations in the Complaint in the light most favorable to Plaintiff, the
Court found that Plaintiff’s claims for injunctive and declaratory relief were timely because the
Complaint was filed within one year of SMG allegedly denying Plaintiff “the full and equal
enjoyment” of a place of public accommodation.19 However, the Court found that Plaintiff’s claim
regarding future renovations was not ripe for judicial review.20 Accordingly, the Court granted the
motion to the extent it sought dismissal of Plaintiff’s claim regarding future renovations but denied
the motion in all other respects.21
On February 19, 2020, the Court granted in part and denied in part Defendants the Board,
France, and SMG’s “Motion for Summary Judgment on all of Plaintiff’s Remaining Claims.”22
The Court found that under the alteration standard, Plaintiff does not have to show that a proposed
modification is “readily achievable” and even under the Second Circuit’s burden-shifting
framework, Plaintiff identified some manner in which the alteration could be, or could have been,

17

Rec. Doc. 86.

18

Id. at 24.

19

Id. at 24–25.

20

Id. at 25.

21

Id.

22

Rec. Doc. 140.

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made readily accessible.23 Furthermore, the Court found that five of Plaintiff’s alteration claims
relate to accessibility at the 100 and 200 Levels.24 However, the Court dismissed Plaintiff’s claim
that the entire facility must comply with the alteration standard by providing accessible seating
stadium-wide.25
On February 21, 2020, the Court granted in part and denied in part SMG’s “Motion for
Summary Judgment on Modifications.”26 The Court found that genuine issues of material fact exist
regarding SMG’s level of control over the Superdome such that SMG could be considered the
operator of the Superdome.27 Additionally, the Court found summary judgment inappropriate as
to Plaintiff’s claims regarding the physical size and location of the video monitors; however, the
Court granted summary judgment dismissing any claim as to the content on the video monitors.28
Lastly, the Court found that National Football League regulations do not alter Defendant’s
obligation to comply fully with applicable accessibility standards and the ADA Accessibility
Guidelines for Buildings and Facilities (“ADAAG”) unless it is virtually impossible to do so.29
On February 21, 2020, the Court granted in part and denied in part the Board and France’s
“Motion for Summary Judgment on all of Plaintiff’s Remaining Claims.”30 Plaintiff did not oppose
dismissal of his claims against the Board and his request for monetary damages against France;

23

Id. at 23–31.

24

Id. at 34–37.

25

Id. at 37–38.

26

Rec. Doc. 141.

27

Id. at 14–19.

28

Id. at 19–22.

29

Id. at 23–24.

30

Rec. Doc. 144.

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accordingly, the Court dismissed those claims.31 However, the Court determined that Plaintiff’s
claim against France for injunctive relief under Title II of the ADA would proceed under the
doctrine of Ex parte Young.32 Lastly, the Court found that Plaintiff’s claims were not time barred.33
On February 21, 2020, the Court denied Plaintiff’s “Motion for Partial Summary
Judgment.”34 The Court first addressed the preliminary issue of timeliness and standing before
turning to whether Plaintiff is entitled to summary judgment on the alteration claims.35 First,
because there were genuine issues of material fact in dispute regarding whether SMG is an operator
under Title III, the Court determined that Plaintiff was not entitled to summary judgment against
SMG.36 Second, the Court determined that Congress’s use of the present tense suggests that a new
claim accrued each time that SMG allegedly denied Plaintiff “the full and equal enjoyment” of a
place of public accommodation; therefore, the Court found Plaintiff’s claims are timely.37
Additionally, the Court found that SMG had not shown that Plaintiff’s claims should be barred
under the doctrine of laches.38 Third, the Court determined that Plaintiff has standing to seek
injunctive relief because: he has suffered an injury in fact that is concrete and particularized and
actual or imminent; the injury is fairly traceable to the challenged action of Defendants; and it is

31

Id. at 19–20.

32

Id. at 20–27.

33

Id. at 27–31.

34

Rec. Doc. 145.

35

Id. at 26.

36

Id. at 26–27.

37

Id. at 27–29.

38

Id. at 29–30.

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likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.39
Lastly, the Court found that genuine issues of fact exist as to each of Plaintiff’s alteration
arguments.40
A trial without a jury was held from March 2, 2020 through March 3, 2020.41
On May 4, 2020, Plaintiff filed post-trial briefing and Proposed Findings of Fact & Conclusions
of Law.42 On June 3, 2020, SMG and France filed post-trial briefing and Proposed Findings of
Fact & Conclusions of Law.43 On June 23, 2020, Plaintiff filed a reply to Defendants’ post-trial
briefing and Proposed Findings of Fact & Conclusions of Law.44
II.

Findings of Fact

The parties agreed to many of the facts relevant to the Court’s judgment in this trial when
the parties submitted their uncontested facts in the joint pre-trial order submitted into the record.45
The Court will note which facts the parties agreed to in the Court’s citations herein.
A.

The Parties
Shelby Bailey (“Plaintiff”) is a resident of Louisiana who has muscular dystrophy and

relies on an electric wheelchair for mobility and ventilator to breathe.46 Plaintiff is a qualified
individual with a disability under the ADA.47 Plaintiff has been a New Orleans Saints season ticket

39

Id. at 30–32.

40

Id. at 32–45.

41

Rec. Docs. 170–171.

42

Rec. Doc. 172.

43

Rec. Docs. 174–175.

44

Rec. Doc. 178.

45

See Rec. Doc. 163.

46

Parties did not contest this fact. Id. at 2.

47

Parties did not contest this fact. Id. at 4.

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holder for over thirty years.48 Plaintiff attended approximately six games during the 2017 season,
approximately seven games during the 2018 season and approximately five games during the 2019
season.49 Plaintiff intends to continue attending Saints games at the Superdome in the future.50
SMG is a private company that manages the Superdome pursuant to a management
agreement between it and the Board of Commissioners of the Louisiana Stadium and Exposition
District.51
The Board of Commissioners of the Louisiana Stadium and Exposition District (the
“Board”) is a political arm of the State of Louisiana, comprised of seven Louisiana citizens each
appointed by the governor and is the owner of the Superdome.52 The Board owns the Superdome.53
The Board has no employees.54 Kyle France (“France”) is the chairman of the Board.55
B.

The relationship between the parties
At trial, Alan Freeman, who was hired by SMG as the general manager of the Superdome,

detailed the relationship between the Board and SMG.56 Mr. Freeman testified that the Board does
not have a lot of oversight with respect to SMG’s operations and that as the General Manager of
the Superdome, there is no one at the Board he speaks to on a regular basis.57 Mr. Freeman testified

48

Parties did not contest this fact. Id. at 2.

49

Trial Transcript, March 2, 2020, Shelby Bailey, p. 214.

50

Parties did not contest this fact. Rec. Doc. 163 at 6.

51

Parties did not contest this fact. Id. at 2.

52

Parties did not contest this fact. Id.

53

Parties did not contest this fact. Id. at 4.

54

Parties did not contest this fact. Id.

55

Parties did not contest this fact. Id. at 2.

56

Trial Transcript, March 2, 2020, Alan Freeman, pp. 139–40.

57

Trial Transcript, March 2, 2020, Alan Freeman, p. 140.

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that the Board does not have any employees.58
Larry Roedel, who served as general counsel to the Board from 2004 to 2016, testified that
the Board relies on SMG’s accounting, management, and financial expertise.59 Mr. Roedel
explained that while the Board meets monthly to approve recommendations, without staff and
employees, the Board is reliant on SMG.60 Mr. Roedel could not recall a single instance during his
time as general counsel when the Board rejected a significant recommendation from SMG.61
Doug Thornton, who served as regional vice-president of SMG, testified that SMG
provides recommendations with regard to capital improvements.62 Mr. Thornton further testified
that SMG has a fair amount of operational autonomy to manage and operate the Superdome.63 Mr.
Thornton testified that SMG has its own operational division which performs venue assessments
to ensure that the Superdome complies with various regulations, including OSHA, fire safety, and
the ADA.64 Mr. Freeman testified that he performed a rudimentary investigation, by sitting on a
folding chair at the Row 36 seats and had other SMG staffers sit and stand in the rows in front of
Row 36, to evaluate whether wheelchair users in Row 36 had the same views as other fans.65
Additionally, several agreements between SMG and the Board were offered into evidence

58

Trial Transcript, March 2, 2020, Alan Freeman, p. 140.

59

Trial Transcript, March 2, 2020, Larry Roedel, p. 177.

60

Trial Transcript, March 2, 2020, Larry Roedel, p. 177.

61

Trial Transcript, March 2, 2020, Larry Roedel, p. 87.

62

Trial Transcript, March 2, 2020, Doug Thornton, p. 109.

63

Trial Transcript, March 2, 2020, Doug Thornton, p. 110.

64

Trial Transcript, March 2, 2020, Doug Thornton, p. 111.

65

Trial Transcript, March 2, 2020, Alan Freeman, pp. 150–51.

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at trial. Pursuant to the initial Management Agreement,66 the State of Louisiana “grant[ed] [SMG]
. . . the exclusive right to perform and furnish or cause to be performed and furnished, from the
effective date [t]hereof, all management, services, labor and materials needed to operate and
maintain the Facility known as the ‘Louisiana Superdome’, in the most efficient and profitable
manner as can be reasonably expected.”67 The initial Management Agreement further provides
under the section entitled “Capital Improvements Budget”:
At least six (6) months prior to the commencement of each Fiscal Year, [SMG] will
submit a budget for such Fiscal Year setting forth projected Capital Expenditures.
This budget will be subject to the procedures customarily employed in connection
with the development, approval and implementation of budgets for operating
agencies of the State. In addition, when [SMG] becomes aware, [SMG] will advise
the State of any unanticipated condition which jeopardizes the structural soundness
of the Superdome, or the ability of [SMG] to perform under this agreement, and the
State agrees to make available the funds necessary to correct such conditions,
within such time as required under the circumstances.68
“Capital Expenditures” are defined in the Management Agreement as “all expenditures for
building additions, alterations or improvements, and for purchases of additional or replacement
furniture, machinery or equipment, the depreciable life of which, according to accepted accounting
principles, is in excess of one (1) year and expenditures for maintenance or repairs which extend
the useful life of the assets being maintained or repaired for a period in excess of one year.”69
Pursuant to the Amended and Restated Support Services Agreement, the Board delegated

Rec. Doc. 180-9. HMC Management Corporation was the original “manager” under the initial Management
Agreement. SMG became the “manager” as a result of the Fourth Amendment to Management Agreement dated June
19, 1998. Rec. Doc. 180-13. The Management Agreement has been amended a total of seven times. See Rec. Docs.
180-9–180-15.
66

67

Rec. Doc. 180-9 at 2.

68

Id. at 5–6.

69

Id. at 1.

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to SMG responsibility for certain services.70 For example, the “Asset Management” section states:
SMG shall provide all asset management services relating to the Facilities and other
properties of the LSED, including maintenance of inventory control; oversight of
the condition and maintenance requirements of the Facilities; to the extent that
funds supplied by the LSED are made available therefor and the LSED has
authority with respect thereto, see that the Facilities are maintained in good order
and condition; to the extent that funds supplied by the LSED are made available
therefor, rent, lease or purchase all equipment and maintenance supplies necessary
or appropriate for the performance of the LSED’s obligations with respect to the
operation and maintenance of the Facilities; manage all maintenance and capital
projects undertaken by the LSED with respect to the Facilities; and otherwise
perform all services necessary or useful in preserving and protecting the assets of
the LSED. In addition, SMG shall manage any capital projects undertaken by the
LSED with respect to the Superdome and the Arena to the extent such function is
not already within the scope of SMG’s duties and authority under the State
Management Agreement.71
Furthermore, under the Amended and Restated Support Services Agreement SMG is obligated to
“prepare and submit to the LSED . . . each year, proposed capital expenditures with respect to the
facilities,” as well as “a detailed budget for capital projects recommended to be undertaken. . .”72
C.

The Superdome pre-2010
The Superdome was built in 1975.73 Prior to the 2010 Renovations, the sideline seats in the

100 Level were movable.74 Prior to the 2010 Renovations, ADA-designated seating in the
Superdome was located on temporary platforms in the last row of the 100 Level.75 These platforms

70

Rec. Doc. 180-18 at 2–4.

71

Id. at 2–3.

72

Id. at 5.

73

Parties did not contest this fact. Rec. Doc. 163 at 4.

74

Trial Transcript, March 2, 2020, Alan Freeman, pp. 140–41.

75

Parties did not contest this fact. Rec. Doc. 163 at 4.

11

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were located on the field.76 Plaintiff’s seat was on the fifteen yard line.77 Prior to the 2011 season,
Plaintiff viewed Saints games on such a temporary platform.78 Plaintiff liked watching the games
from the platforms because his view of the field was seldomly blocked. 79 As part of the 2010
Renovations, these platforms were removed and replaced with permanent seating.80
Plaintiff accessed the platform by crossing a portion of the playing field.81 The platform
did not have access to permanent accessible bathrooms or concessions; patrons seated on the
platform utilized a portable toilet.82
D.

The 2010 Renovations
On March 11, 2010, construction commenced on renovations to the Superdome (the “2010

Renovations”).83 As part of the 2010 Renovations, the sideline seats in the 100 Level were removed
and replaced with new, permanent, fixed seats.84 Approximately 3,500 new seats were added to
the 100 Level.85 However, the first nine rows of the sideline seats in the 100 Level are demountable
so they can be removed for events where more floor space is needed.86

76

Parties did not contest this fact. Id.

77

Trial Transcript, March 2, 2020, Shelby Bailey, p. 211.

78

Parties did not contest this fact. Rec. Doc. 163 at 4.

79

Trial Transcript, March 2, 2020, Shelby Bailey, p. 211.

80

Trial Transcript, March 2, 2020, Doug Thornton, p. 135.

81

Parties did not contest this fact. Rec. Doc. 163 at 4.

82

Parties did not contest this fact. Id. at 5.

83

Parties did not contest this fact. Id. at 4.

84

Parties did not contest this fact. Id. at 5.

85

Trial Transcript, March 2, 2020, Alan Freeman, p. 143.

86

Trial Transcript, March 2, 2020, Alan Freeman, p. 143; Trial Transcript, March 2, 2020, Doug Thornton,

p. 113.

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A total of 17,118 seats along the sidelines of the lower bowl were replaced as part of the
2010 Renovations.87 The “Bunker Club,” premium club seating featuring enhanced fan amenities,
was also added as part of the 2010 Renovations.88 Lastly, the sideline concourses in the 100 Level
were widened.89
The 2010 Renovations created four separate decks on the bottom-most row of the 100
Level.90 Those decks are located between the 30 and 40 yard lines and accommodate a total of 24
wheelchair seats and 24 companion seats.91 Additional new, designated wheelchair accessible seats
were also constructed on Row 36 in each section along the sidelines of the 100 Level as part of the
2010 Renovations, except for the seven sections located in each end zone. 92 The seats in the endzone, consisting of 8,342 seats, were not renovated in 2010.93 Additionally in 2010, the temporary
platforms, where Plaintiff and other wheelchair users previously sat, were removed.94 The 200
Level and the Terrace were not altered as part of the 2010 Renovations.95

87

Parties did not contest this fact. Rec. Doc. 163 at 5.

88

Trial Transcript, March 2, 2020, Alan Freeman, p. 169.

89

Trial Transcript, March 2, 2020, Alan Freeman, p. 143.

90

Parties did not contest this fact. Rec. Doc. 163 at 5.

91

Parties did not contest this fact. Id.

92

Parties did not contest this fact. Id. at 5.

93

Parties did not contest this fact. Id.

94

Trial Transcript, March 2, 2020, Doug Thornton, p. 135.

95
At trial, SMG objected to a question related to alterations at the 200 Level of the Superdome on the basis
of relevancy. Rec. Doc. 170 at 44. France joined in the objected. Id. at 45. SMG argued that Plaintiff’s alteration claim
in the Complaint was limited to 2010 Renovations, which only impacted the 100 Level of the Superdome. Id. at 44–
45. Plaintiff represented that the renovations to the 200 Level occurred following hurricane Katrina and should qualify
as an alteration. Id. at 49–50. However, Plaintiff conceded that an alteration claim as to the 200 Level was not in the
Complaint. Id. at 51. Accordingly, because Plaintiff did not assert a 200 Level alteration claim in the Complaint, and
did not move to amend the Complaint, the Court determined that it was not an issue at trial. Id. at 44–54. However,
the Court clarified that evidence related to the 200 Level for other claims, including the program access claim, may
still be admissible. Id. at 53–54.

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E.

The current configuration of the Superdome
The Superdome is comprised of five separate seating tiers or “levels”, which are vertically-

stacked.96 Closest to the field is the 100 Level or the “Lower Bowl.”97 Extending upward is the
200 Level or the “Loge Bowl,” the 300 Level or the “Lower Suite Bowl,” and the 400 Level or the
“Upper Suite Bowl.”98 Lastly, the Superdome demarks the seating in the “500 Level or Above,”
or the “Upper Bowl” which includes the 500 Level, the 600 Level and the 700 Level. 99 These
uppermost levels of the Superdome are known as the “Terrace.”100 The Levels are divided
horizontally into sections.
At the 100 Level, there are presently 25,460 seats, of which a total of 236 are designated
as wheelchair accessible seats.101 The wheelchair-designated seats in Row 1 of the 100 Level are
located between the 30-yard and 40-yard lines.102 The wheelchair accessible seating in Row 36 of
the 100 Level wraps around the length of the sideline.103 There are currently no designatedaccessible seats in the end zone sections of the 100 Level at the Superdome.104 The seating in the
Terrace is not wheelchair accessible.105 There are no designated wheelchair accessible seats in the

96

Rec. Doc. 179-6 at 1.

97

Id.

98

Id.

99

Id.

100

Trial Transcript, March 2, 2020, Alan Freeman, p. 151.

101

Parties did not contest this fact. Rec. Doc. 163 at 5.

102

Parties did not contest this fact. Id. at 6.

103

Trial Transcript, March 3, 2020, James Terry, pp. 338–39.

104

Parties did not contest this fact. Rec. Doc. 163 at 5.

105
Trial Transcript, March 2, 2020, James Terry, p. 251–54; Trial Transcript, March 3, 2020, Mark Mazz, p.
447; Trial Transcript, March 2, 2020, Alan Freeman, p. 152.

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200 Level of the Superdome.106
F.

Plaintiff’s seating after the 2010 Renovations
After the 2010 Renovations, Plaintiff’s season tickets were moved to Row 36 of section

109 in the 100 Level.107 A concrete overhang prevents patrons seated in row 36, including Plaintiff,
from viewing the scoreboard and some aerial gameplay such as punts, kicks, and long passes.108
Plaintiff complained about the seats in and sightlines from Row 36 after the very first game he
attended in 2011.109 Plaintiff has tried the designated-accessible seats in the 100 Level, but the
view is similarly obstructed.110
After discovering these obstructions, Plaintiff spoke with Kevin McGuire, an ADA
consultant who at various time has acted as a consultant for one or more of the following: SMG,
the LSED, and the New Orleans Saints.111 Mr. McGuire attempted to assist Plaintiff regarding his
complaints about obstructed sightlines at the Superdome.112 For example, Mr. McGuire assisted in
moving Plaintiff’s seat to the Row 1 seats in the 100 Level.113
III.
A.

Conclusions of Law

Applicable Law
In an attempt to clarify “the often confusing and contradictory standards” governing this

106

Trial Transcript, March 2, 2020, Doug Thornton, p. 110–11; Trial Transcript, March 2, 2020, Alan
Freeman, p. 151.
107

Parties did not contest this fact. Rec. Doc. 163 at 6.

108

Parties did not contest this fact. Id.

109

Parties did not contest this fact. Id. at 7.

110

Parties did not contest this fact. Id. at 6.

111

Parties did not contest this fact. Id.

112

Parties did not contest this fact. Id.

113

Parties did not contest this fact. Id.

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matter, the Court here expounds upon the regulations, interpretations of the regulations and the
guidelines applicable to the ADA.114 First, the Court reviews the text of the ADA generally,
including a discussion of Title II and Title III. Next, the Court reviews the subsequent regulations
and guidelines promulgated by the DOJ. The Court then analyzes which of these regulations are
applicable to the claims at issue. Lastly, the Court determines whether the DOJ’s interpretations
of its own regulations are entitled to deference.
1.

ADA Compliance Generally

The Americans with Disabilities Act of 1990 (“ADA”) “is a broad mandate of
comprehensive character and sweeping purpose intended to eliminate discrimination against
disabled individuals, and to integrate them into the economic and social mainstream of American
life.”115 “To effectuate its sweeping purpose, the ADA forbids discrimination against disabled
individuals in major areas of public life, among them employment (Title I of the Act), public
services (Title II), and public accommodations (Title III).”116 Plaintiff brings claims against France
under Title II of the ADA and the Rehabilitation Act.117 Plaintiff brings claims against SMG under
Title III of the ADA.118
i.

Title II of the ADA and the Rehabilitation Act

“Title II of the ADA focuses on disability discrimination in the provision of public

114
Landis, 2019 WL 7157165, at *3 (“The Court notes that seemingly the only consistency in the applicable
law is that it and its regulations are incredibly convoluted. This Court, therefore, joins many of its sister courts in
bemoaning the lack of clarity regarding the issues at hand.”).
115
Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc) (citing PGA Tour, Inc. v. Martin,
532 U.S. 661, 675 (2001); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 599 (1999) (internal quotation marks
omitted)).
116

PGA Tour, 532 U.S. at 675.

117

Rec. Doc. 1 at 1–2.

118

Id. at 2.

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services.”119 Specifically, Title II provides that “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.”120
A “public entity” includes “any department, agency, special purpose district, or other
instrumentality of a State or States or local government.”121
Similarly, “Section 504 of the Rehabilitation Act prohibits disability discrimination by
recipients of federal funding.”122 Like Title II, Section 504 provides that no qualified individual
with a disability “shall, solely by reason of her or his disability, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance.”123 “The ADA and the Rehabilitation Act generally are interpreted in
pari materia.”124 “Indeed, Congress has instructed courts that “nothing in [the ADA] shall be
construed to apply a lesser standard than the standards applied under title V [i.e., § 504] of the
Rehabilitation Act . . . or the regulations issued by Federal agencies pursuant to such title.’”125
“To show a violation of either statute, 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

119

Frame, 657 F.3d at 223.

120

42 U.S.C. § 12132.

121

Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (quoting 42 U.S.C. § 12131(1)(B)).

122

Frame, 657 F.3d at 223.

123

29 U.S.C. § 794(a).

124

Frame, 657 F.3d at 223 (citing Kemp v. Holder, 610 F.3d 231, 234–35 (5th Cir. 2010); Pace v. Bogalusa
City Sch. Bd., 403 F.3d 272, 287–88, 289 n. 76 (5th Cir. 2005) (en banc)).
125

Id. at 223–24 (quoting 42 U.S.C. § 12201(a); Bragdon v. Abbott, 524 U.S. 624, 632 (1998)).

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such discrimination is by reason of his disability.”126
The United States Attorney General is authorized to promulgate regulations implementing
Title II.127 The regulations provide that “no qualified individual with a disability shall, because a
public entity’s facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity.” 128 A public entity must 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.”129 Therefore, Title II
requires “program accessibility.”130
“Recognizing that failure to accommodate persons with disabilities will often have the
same practical effect as outright exclusion, Congress required the States to take reasonable
measures to remove architectural and other barriers to accessibility.” 131 However, a public entity
is not “necessarily required . . . to make each of its existing facilities accessible to and usable by
individuals with disabilities.”132 Instead, with respect to facilities built before 1992, Title II only
requires ‘“reasonable modifications’ that would not fundamentally alter the nature of the service
provided, and only when the individual seeking modification is otherwise eligible for the

126

Miraglia v. Bd. of Supervisors of Louisiana State Museum, 901 F.3d 565, 574 (5th Cir. 2018) (quoting
Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011) (per curiam)).
127

42 U.S.C. § 12134(a).

128

28 C.F.R. § 35.149.

129

Id. at § 35.150(a).

130

Tennessee v. Lane, 541 U.S. 509, 531 (2004).

131

Id. (citing 42 U.S.C. § 12131(2)).

132

28 C.F.R. § 35.150(a)(1).

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service.”133
“In the case of facilities built or altered after 1992, the regulations require compliance with
specific architectural accessibility standards,”134 including the ADA Accessibility Guidelines for
Buildings and Facilities (“ADAAG”) set forth at 36 C.F.R. part 1191, appendices B and D.
Pursuant to the regulations, “[e]ach facility or part of a facility altered by, on behalf of, or for the
use of a public entity in a manner that affects or could affect the usability of the facility . . . shall,
to the maximum extent feasible, be altered in such manner that the altered portion of the facility is
readily accessible to and usable by individuals with disabilities. . . .”135
ii.

Title III of the ADA

Title III of the ADA provides that “[n]o 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.”136 A stadium is considered to
be a place of public accommodation under Title III.137 “The ADA does not require a place of public
accommodation to provide a plaintiff with the ideal or preferred accommodation; rather, the ADA
requires that a defendant provide a plaintiff with an accommodation that is reasonable and permits
the plaintiff to participate equally in the good, service, or benefit offered.”138
Title III defines discrimination as including “a failure to remove architectural barriers . . .

133

Lane, 541 U.S. at 531.

134

Id. (citing 28 CFR § 35.151).

135

28 C.F.R. § 35.151(b)(1).

136

42 U.S.C. § 12182(a).

137

Id. at § 12181(7)(C).

138

1 Americans with Disab. Pract. & Compliance Manual § 4:1, Nondiscrimination Mandate.

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in existing facilities . . . where such removal is readily achievable.”139 The term “existing facilities”
includes structures built prior to the Act taking effect on January 26, 1992, which have not been
modified since then.140
Pursuant to the regulations implementing Title III, “[a]ny alteration to a place of public
accommodation . . . after January 26, 1992, shall be made so as to ensure that, to the maximum
extent feasible, the altered portions of the facility are readily accessible to and usable by individuals
with disabilities, including individuals who use wheelchairs.”141 Public accommodations built or
altered after January 26, 1992, must comply with both the Title III regulations set forth at 28 C.F.R.
part 36, subpart D and the ADAAG unless “the nature of an existing facility makes it virtually
impossible to comply fully with applicable accessibility standards through a planned alteration.”142
There is an exception to Title III’s requirements where “an entity can demonstrate that it is
structurally impracticable to meet the requirements.”143
2.

Subsequent ADA Regulations

Since the ADA was enacted, the Department of Justice (“DOJ”) has issued five documents
addressing issues pertinent to the outcome of this matter. Below, the Court reviews the history and
content of these five documents.
To begin, the Court reviews the process by which the DOJ promulgates regulations. The
ADA granted the DOJ the authority to promulgate regulations and guidelines to implement the

139

42 U.S.C. § 12182(b)(2)(A)(iv).

140

Tatum v. Doctor’s Associates, Inc., No. CV 14–2980, 2016 WL 852458, at *3 (E.D. La. Mar. 4, 2016)

141

28 C.F.R. § 36.402(a)(1).

142

Id. at § 36.402(c).

143

42 U.S.C. § 12183(a)(1).

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ADA.144 However, this process comes with “an unusual twist.”145 In promulgating and
implementing its regulations, the DOJ is required to “be consistent with the minimum guidelines
and requirements issued by the Architectural and Transportation Barriers Compliance Board” (“the
Access Board”).146 Accordingly, the ADA Accessibility Guidelines (“ADAAG”) are developed
by the Access Board.147
In January 1991, the Access Board published its first proposed ADAAG, which were
finalized in July 1991 (the “1991 ADAAG”).148 The 1991 ADAAG was then formally adopted by
the DOJ “‘as the accessibility standard applicable under’” Title III. 149 Thus, “[t]he DOJ
incorporated the ADAAG . . . verbatim” into what was then Appendix A.150 Today, the 1991
ADAAG is located at Appendix D.151
At issue in this litigation is Section 4.33.3 of the 1991 ADAAG, which addresses the
placement of wheelchair locations, and provides in whole:
Wheelchair areas shall be an integral part of any fixed seating plan and shall be
provided so as to provide people with physical disabilities a choice of admission
prices and lines of sight comparable to those for members of the general public.
They shall adjoin an accessible route that also serves as a means of ingress and
egress in case of emergency. At least one companion fixed seat shall be provided
next to each wheelchair seating area. When the seating capacity exceeds 300,
wheelchair spaces shall be provided in more than one location. Readily removable
144

Id. at § 12134(a) (authorizing the United States Attorney General to promulgate regulations implementing
Title II); id. at § 12186(b).
145

Miller v. California Speedway Corp., 536 F.3d 1020, 1024 (9th Cir. 2008).

146

42 U.S.C. 12186(c); see also id. at § 12134(c).

147

29 U.S.C. § 792(a)(1).

148

Miller, 536 F.3d at 1025.

149

Id. (quoting 56 Fed. Reg. at 35,585).

150

Id. at 1026 (citing 28 C.F.R. 36.406 & App. A).

151
See 28 C.F.R. Pt. 36, App. D; see also Access Board, ADA Standards for Accessible Design (1994),
https://www.ada.gov/1991standards/adastd94-archive.pdf (“1991 ADAAG”).

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seats may be installed in wheelchair spaces when the spaces are not required to
accommodate wheelchair users.
EXCEPTION: Accessible viewing positions may be clustered for bleachers,
balconies, and other areas having sight lines that require slopes of greater than 5
percent. Equivalent accessible viewing positions may be located on levels having
accessible egress.152
In 1993, the DOJ, under its authority to publish technical assistance, published a Technical
Assistance Manual (the “TAM”).153 “Such technical assistance manuals are meant to guide entities
such as [the owners and operators of sports arenas] in some of the more technical elements of
complying with the regulations.”154 The 1993 TAM did not directly address § 4.33.3, and as such,
does not provide much in the way of additional context to the sightline regulations at issue in this
litigation.155 However, the 1994 Supplement to the Technical Assistance Manual (the “1994
Supplement”), provided a seemingly more aggressive interpretation of § 4.33.3 by requiring that
wheelchair locations provide lines of sight over spectators who stand:
In addition to requiring companion seating and dispersion of wheelchair locations,
ADAAG requires that wheelchair locations provide people with disabilities lines of
sight comparable to those for members of the general public. Thus, in assembly
areas where spectators can be expected to stand during the event or show being
viewed, the wheelchair locations must provide lines of sight over spectators who
stand. This can be accomplished in many ways, including placing wheelchair
locations at the front of a seating section, or by providing sufficient additional
elevation for wheelchair locations placed at the rear of seating sections to allow
152

1991 ADAAG at § 4.33.3.

153

See Department of Justice, ADA Title III Technical Assistance Manual Covering Public Accommodations
and Commercial Facilities (1993), https://www.ada.gov/taman3.html.
154

Landis, 2019 WL 7157165, at *4.

155

The TAM addressed “[s]eating in assembly areas” in which it provided that:

If it is readily achievable to do so, public accommodations that operate places of assembly must
locate seating for individuals who use wheelchairs so that it -1) Is dispersed throughout the seating area;
2) Provides lines of sight and choices of admission prices comparable to those offered
to the general public;
3) Adjoins an accessible route for emergency egress; and
4) Permits people who use wheelchairs to sit with their friends or family.

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those spectators to see over the spectators who stand in front of them.156
“In addition to the ADAAG and the TAMs, the DOJ also publishes more informal
guidelines regarding its interpretations of the ADA, the ADAAG, and its own regulations. For
example, in 1996 it published Accessible Stadiums in order to ‘highlight[ ] key accessibility
requirements of the ADA that apply to” stadiums built after the ADA’s effective date.’”157
Regarding sight line requirements, Accessible Stadiums provides:
Wheelchair seating locations must provide lines of sight comparable to those
provided to other spectators. In stadiums where spectators can be expected to stand
during the show or event (for example, football, baseball, basketball games, or rock
concerts), all or substantially all of the wheelchair seating locations must provide a
line of sight over standing spectators. A comparable line of sight . . . allows a person
using a wheelchair to see the playing surface between the heads and over the
shoulders of the persons standing in the row immediately in front and over the heads
of the persons standing two rows in front.158
In 2004, the Access Board produced updated guidelines, which the DOJ adopted in 2010
(the “2010 ADAAG”).159 The 2010 ADAAG requires that “[w]heelchair spaces shall be an integral
part of the seating plan” meaning that “wheelchair spaces must be placed within the footprint of
the seating area.” 160 “Wheelchair spaces cannot be segregated from seating areas. For example, it
would be unacceptable to place only the wheelchair spaces, or only the wheelchair spaces and their
associated companion seats, outside the seating areas defined by risers in an assembly area.”161

156

See Title III Technical Assistance Manual 1994 Supplement (1994), https://www.ada.gov/taman3up.html.

157

Landis, 2019 WL 7157165, at *5 (quoting Department of Justice, Accessible Stadiums (1996),
https://www.ada.gov/stadium.pdf).
158

Department of Justice, Accessible Stadiums 2 (1996), https://www.ada.gov/stadium.pdf.

159

See 28 C.F.R. Pt. 36, App. B; see also Access Board, 2010 ADA Standards for Accessible Design (2010),
www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pdf. (“2010 ADAAG”).
160

2010 ADAAG at § 221.2.2.

161

Id.

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The 2010 ADAAG elaborated on the sightline requirements that were initially contained
within 1991 ADAAG Section 4.33.3:
Wheelchair spaces shall provide lines of sight complying with 802.2 and shall
comply with 221.2.3. In providing lines of sight, wheelchair spaces shall be
dispersed. Wheelchair spaces shall provide spectators with choices of seating
locations and viewing angles that are substantially equivalent to, or better than, the
choices of seating locations and viewing angles available to all other spectators.
When the number of wheelchair spaces required by 221.2.1 has been met, further
dispersion shall not be required.162
Section 802.2 provides “Lines of sight to the screen, performance area, or playing field for
spectators in wheelchair spaces shall comply with 802.2.”163 Section 802.2.1.1 addresses lines of
sight over seated spectators while Section 802.2.2 addresses lines of sight over standing spectators.
Section 802.2.2.1 addresses lines of sight over heads of standing spectators: “Where standing
spectators are provided lines of sight over the heads of spectators standing in the first row in front
of their seats, spectators seated in wheelchair spaces shall be afforded lines of sight over the heads
of standing spectators in the first row in front of wheelchair spaces.”164 Section 802.2.2 addresses
lines of sight over standing spectators: “Where standing spectators are provided lines of sight over
the shoulders and between the heads of spectators standing in the first row in front of their seats,
spectators seated in wheelchair spaces shall be afforded lines of sight over the shoulders and
between the heads of standing spectators in the first row in front of wheelchair spaces.”165
Additionally, the 2010 ADAAG includes a requirement for the horizontal dispersion of accessible

Id. at § 221.2.3; see also id. (“Consistent with the overall intent of the ADA, individuals who use
wheelchairs must be provided equal access so that their experience is substantially equivalent to that of other members
of the audience. Thus, while individuals who use wheelchairs need not be provided with the best seats in the house,
neither may they be relegated to the worst.”).
162

163

Id. at § 802.2.

164

Id. at § 802.2.2.1.

165

Id. at § 802.2.2.2.

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seats166 as well as the vertical dispersion of accessible seats.167
3.

Whether the 1991 ADAAG Standards or the 2010 ADAAG Standard apply to
the 2010 Renovations

Next, the Court must address when the 1991 ADAAG requirements apply and when the
2010 ADAAG requirements apply. In 2011, the DOJ published guidelines on whether the 2010
ADAAG or the 1991 ADAAG, applies.168 With respect to compliance date, the regulations
provide:
New construction and alterations subject to §§ 36.401 or 36.402 shall comply with
the 1991 Standards if the date when the last application for a building permit or
permit extension is certified to be complete by a State, county, or local government
(or, in those jurisdictions where the government does not certify completion of
applications, if the date when the last application for a building permit or permit
extension is received by the State, county, or local government) is before September
15, 2010, or if no permit is required, if the start of physical construction or
alterations occurs before September 15, 2010.169
In other words, the 1991 ADAAG applies to new construction and alterations built prior to
September, 15 2010.170 However, the 2010 ADAAG applies to new construction and alterations

Id. at § 221.2.3.1 (“Wheelchair spaces shall be dispersed horizontally.”). see also id. (“Horizontal
dispersion of wheelchair spaces is the placement of spaces in an assembly facility seating area from side-to-side or, in
the case of an arena or stadium, around the field of play or performance area.”).
166

167
Id. at § 221.2.3.2 (“Wheelchair spaces shall be dispersed vertically at varying distances from the screen,
performance area, or playing field. In addition, wheelchair spaces shall be located in each balcony or mezzanine that
is located on an accessible route.”). see also id. (“When wheelchair spaces are dispersed vertically in an assembly
facility they are placed at different locations within the seating area from front-to-back so that the distance from the
screen, stage, playing field, area of sports activity, or other focal point is varied among wheelchair spaces.”). The 2010
ADAAG’s vertical dispersion requirement includes an exception, which states that wheel chairs spaces are not
required “in rows other than rows at points of entry to bleacher seating.” 2010 ADAAG at § 221.2.3.2 (“Points of
entry to bleacher seating may include, but are not limited to, cross aisles, concourses, vomitories, and entrance ramps
and stairs. Vertical, center, or side aisles adjoining bleacher seating that are stepped or tiered are not considered entry
points.”).
168

Department of Justice, ADA Requirements:
https://www.ada.gov/revised_effective_dates-2010.htm.

Effective

Date/Compliance

Date

(2011),

169

28 C.F.R. § 36.406(a)(1). Facilities altered on or after September 15, 2010 and before March 15, 2010,
may choose between the 1991 or 2010 Standards, whereas facilities altered on or after March 15, 2012, must comply
with the 2010 Standards. Id.
Id. (“New construction and alterations subject to §§ 36.401 or 36.402 shall comply with the 1991
Standards if the date when the last application for a building permit or permit extension is certified to be complete by
170

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built after March 15, 2012.171 Facilities built between October 2010 and February 2012 could
choose between the 1991 and 2010 Standards.172 Stadiums that would have been controlled by the
1991 ADAAG but conducted alterations after March 2012, must make those alterations in
compliance with the 2010 ADAAG.173 However, a facility that was to be constructed according to
the 1991 ADAAG, but fails to meet that standard must now “be made accessible in accordance
with the 2010 Standards.”174
Here, SMG contends that no permit was required for the 2010 Renovations, and no
evidence has been offered to the contrary.175 Construction on the 2010 Renovations commenced
on March 11, 2010.176 Accordingly, the start of physical construction or alterations occurred before
September 15, 2010. Therefore, the alterations for the 2010 Renovations must comply with the

a State, county, or local govern ment (or, in those jurisdictions where the government does not certify completion of
applications, if the date when the last application for a building permit or permit extension is received by the State,
county, or local government) is before September 15, 2010, or if no permit is required, if the start of physical
construction or alterations occurs before September 15, 2010.”).
Id. at § 36.406(a)(3) (“New construction and alterations subject to §§ 36.401 or 36.402 shall comply with
the 2010 Standards if the date when the last application for a building permit or permit extension is certified to be
complete by a State, county, or local government (or, in those jurisdictions where the government does not certify
completion of applications, if the date when the last application for a building permit or permit extension is received
by the State, county, or local government) is on or after March 15, 2012, or if no permit is required, if the start of
physical construction or alterations occurs on or after March 15, 2012.”).
171

Id. at § 36.406(a)(2) (“New construction and alterations subject to §§ 36.401 or 36.402 shall comply either
with the 1991 Standards or with the 2010 Standards if the date when the last application for a building permit or permit
extension is certified to be complete by a State, county, or local government (or, in those jurisdictions where the
government does not certify completion of applications, if the date when the last application for a building permit or
permit extension is received by the State, county, or local government) is on or after September 15, 2010 and before
March 15, 2012, or if no permit is required, if the start of physical construction or alterations occurs on or after
September 15, 2010 and before March 15, 2012.”).
172

173

Id. at § 36.406(a)(3).

Id. § 36.406(a)(5)(ii) (“Newly constructed or altered facilities or elements covered by §§ 36.401 or 36.402
that were constructed or altered before March 15, 2012 and that do not comply with the 1991 Standards shall, on or
after March 15, 2012, be made accessible in accordance with the 2010 Standards.”).
174

175

Rec. Doc. 174 at 62.

176

Rec. Doc. 163 at 4.

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1991 Standards. However, if the Court finds that Defendants failed to comply with the 1991
ADAAG, Defendants will be required to bring the Superdome into compliance with the 2010
ADAAG.177
4.

Whether the DOJ’s interpretations of its own regulations are entitled to
substantial deference

Lastly, the Court addresses the degree of deference the DOJ is entitled to in interpreting its
own regulations. Recently, in Kisor v. Wilkie, the United States Supreme Court addressed the
continuing viability of Auer deference, or the judicial deference afforded to an agency’s
interpretation of its own regulations.178 The Supreme Court in Kisor did not overrule Auer
deference but did clarify some of the limitations in applying deference to constructions by an
agency.179 Before Kisor, Auer deference required courts to “give an agency’s interpretation of its
own regulations controlling weight unless it is plainly erroneous or inconsistent with the
regulation.”180 After Kisor, a court is to afford judicial deference to an agency’s interpretation of
its own regulations if the agency’s regulation is genuinely ambiguous, even after a court has
resorted to all the standard tools of interpretation, and the agency’s interpretation in reasonable.181
If the regulation is not ambiguous, the “regulation then must mean what it means—and the court
must give it effect, as the court would any law.”182 To determine whether a regulation is
ambiguous, courts must “make a conscientious effort to determine, based on indicia like text,

177

28 C.F.R. § 36.406(a)(5)(ii).

178

Kisor v. Wilkie, 139 S. Ct. 2400, 2410 (2019).

179

Id. at 2415–16.

180

Id. at 2416.

181

Id. at 2414–15.

182

Id. at 2415.

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structure, history, and purpose, whether the regulation really has more than one reasonable
meaning.”183
Here, the regulation at issue, Section 4.33.3 of the 1991 ADAAG, requires wheelchair
accessible seats to have “lines of sight comparable to those for members of the general public.”184
The proper interpretation of the phrase comparable lines of sight “is a classic instance of an
ambiguous regulation.”185 Several circuits have disagreed over what is meant by a comparable line
of sight.186 This shows the regulation is subject to differing interpretations. The ambiguity of the
phrase “reflects the well-known limits of expression.”187 Lastly, the Supreme Court listed this
precise provision in Kisor as an example of “real uncertainties about a regulation’s meaning.”188
Accordingly, the Court finds that Section 4.33.3 of the 1991 ADAAG is genuinely ambiguous.
Still, as the Supreme Court has explained, the analysis remains incomplete because “not
every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference.”189

183

Id. at 2423–24.

184

1991 ADAAG at § 4.33.3.

185

Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., 403 F.Supp.3d 907, 924
(W.D. Wash. 2019).
186
See, e.g., Miller, 536 F.3d 1020; United States v. Hoyts Cinemas Corp., 380 F.3d 558 (1st Cir. 2004);
United States v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir. 2003); Oregon Paralyzed Veterans of Am. v. Regal
Cinemas, Inc., 339 F.3d 1126 (9th Cir. 2003); Lara v. Cinemark USA, Inc., 207 F.3d 783, 788–89 (5th Cir. 2000)
(holding that the phrase means that wheelchair patrons must have a view without physical obstructions); Caruso v.
Blockbuster-Sony Music Entm’t Ctr. at Waterfront, 193 F.3d 730 (3d Cir. 1999) (holding that the phrase means that
wheelchair seating must be dispersed throughout a facility, such that wheelchair users have a variety of viewing angles
to choose from); Paralyzed Veterans of Am. v. D. C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997).
187

See Kisor, 139 S.Ct. at 2410.

188
Id. (“In a rule issued to implement the Americans with Disabilities Act (ADA), the Department of Justice
requires theaters and stadiums to provide people with disabilities “lines of sight comparable to those for members of
the general public.” 28 C.F.R. pt. 36, App. A, p. 563 (1996). Must the Washington Wizards construct wheelchair
seating to offer lines of sight over spectators when they rise to their feet? Or is it enough that the facility offers
comparable views so long as everyone remains seated?”).
189

Id. at 2416.

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Before applying Auer deference, “a court must make an independent inquiry into whether the
character and context of the agency interpretation entitles it to controlling weight.”190 The Supreme
Court has “laid out some especially important markers for identifying when Auer deference is and
is not appropriate.”191 First, “the regulatory interpretation must be one actually made by the
agency” meaning is the agency’s official position, rather than an ad hoc statement.192 Second, “the
agency’s interpretation must in some way implicate its substantive expertise.”193 And third, “an
agency’s reading of a rule must reflect fair and considered judgment.”194
As discussed above, Section 4.33.3 of the 1991 ADAAG requires “people with physical
disabilities [be provided] a choice of admission prices and lines of sight comparable to those for
members of the general public.”195 The 1993 TAM did not directly address § 4.33.3, but the 1994
Supplement provided a seemingly more aggressive interpretation of § 4.33.3 by requiring that
wheelchair locations provide lines of sight over spectators who stand:
In addition to requiring companion seating and dispersion of wheelchair locations,
ADAAG requires that wheelchair locations provide people with disabilities lines of
sight comparable to those for members of the general public. Thus, in assembly
areas where spectators can be expected to stand during the event or show being
viewed, the wheelchair locations must provide lines of sight over spectators who
stand. This can be accomplished in many ways, including placing wheelchair
locations at the front of a seating section, or by providing sufficient additional
elevation for wheelchair locations placed at the rear of seating sections to allow
those spectators to see over the spectators who stand in front of them.196

190

Id.

191

Id.

192

Id. (citing United States v. Mead Corp., 533 U.S. 218, 257–59 (2001) (Scalia, J., dissenting)).

193

Id. at 2417.

194

Id. at 2417–18 (citations and internal quotation marks omitted).

195

1991 ADAAG at § 4.33.3.

196

See Title III Technical Assistance Manual 1994 Supplement (1994), https://www.ada.gov/taman3up.html.

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The Court finds that this interpretation of Section 4.33.3 is entitled to Auer deference. It is
reasonable to interpret the term “lines of sight comparable to those for members of the general
public” as requiring lines of sight over spectators who stand at events where spectators can be
expected to stand. Additionally, the 1994 construction is consistent with the statutory requirement
that facilities be “readily accessible to” and “usable by” persons with disabilities.197 If the members
of the general public typically stand during Saints games at the Superdome, a wheelchair user must
be able to see over standing patrons to meaningfully access the facility. Because the 1994
construction reflects the DOJ’s fair and considered judgment and implicates its substantive
expertise, it is entitled to substantial deference.
In a guideline entitled Accessible Stadiums, the DOJ defined a “comparable line of sight”
to allow for a person using a wheelchair to see the playing surface between the heads and over the
shoulders of the person standing in the row immediately in front and over the heads of the persons
standing two rows in front. The guidance provides that:
Wheelchair seating locations must provide lines of sight comparable to those
provided to other spectators. In stadiums where spectators can be expected to stand
during the show or event (for example, football, baseball, basketball games, or rock
concerts), all or substantially all of the wheelchair seating locations must provide a
line of sight over standing spectators. A comparable line of sight . . . allows a person
using a wheelchair to see the playing surface between the heads and over the
shoulders of the persons standing in the row immediately in front and over the heads
of the persons standing two rows in front.198
The Court finds that this interpretation of Section 4.33.3 is entitled to Auer deference. It is
reasonable to interpret the term “lines of sight comparable to those for members of the general
public” as requiring lines of sight over standing spectators, meaning that a person using a

197

42 U.S.C. § 12183(a)(1).

198

Department of Justice, Accessible Stadiums 2 (1996), https://www.ada.gov/stadium.pdf.

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wheelchair can see the playing surface between the heads and over the shoulders of the person
standing in the row immediately in front and over the heads of the persons standing two rows in
front. This interpretation is consistent with the statutory requirement that facilities be “readily
accessible to” and “usable by” persons with disabilities.199 If the members of the general public
typically stand during Saints games at the Superdome, a wheelchair user must be able to see over
the shoulders or heads of standing patrons in front of them to meaningfully access the facility.
Because the guidelines in Accessible Stadiums, reflects the DOJ’s fair and considered judgment
and implicates its substantive expertise, it is entitled to substantial deference.
B.

Whether SMG is an Operator of the Superdome under Title III
As a preliminary matter, SMG argues that it cannot be held liable under Title III because

it is not an “operator” of the Superdome. Title III of the ADA applies to “any person who owns,
leases (or leases to), or operates a place of public accommodation.”200 Accordingly, the Court
begins by addressing whether SMG is an operator for purposes of the ADA.
In Neff v. Am. Dairy Queen Corp., the Fifth Circuit addressed what it means to “operate”
a place of public accommodation under the ADA.201 There, the Fifth Circuit explained that
“[b]ecause the ADA does not define the term ‘operates,’ we ‘construe it in accord with its ordinary
and natural meaning.’”202 The Fifth Circuit found that the term “operate” means “to put or keep in
operation,” “[t]o control or direct the functioning of,” or “[t]o conduct the affairs of; manage.”203

199

42 U.S.C. § 12183(a)(1).

200

See id. at § 12182(a)

201

58 F.3d 1063 (5th Cir. 1995).

202

Id. at 1066 (quoting Smith v. United States, 508 U.S. 223, 223 (1993); Perrin v. United States, 444 U.S.
37, 42 (1979).
203

Id. (internal citations omitted).

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In Neff, the plaintiff, alleged that American Dairy Queen Corporation (“ADQ”) violated
the ADA by failing to make certain stores accessible to her.204 As a franchisor, ADQ licenses
franchisees to establish and operate Dairy Queen retail stores, like the stores the plaintiff alleged
were not accessible to her.205 ADQ had limited control over franchisee stores; for example, the
franchise agreement between the stores at issue and ADQ merely gave ADQ the power to veto
modifications to the store’s facilities.206 Accordingly, the Fifth Circuit had to determine a narrow
issue: “whether a franchisor with limited control over a franchisee’s store” can be considered an
operator.207 The Fifth Circuit held that the relevant inquiry is whether the defendant controls the
modification of the public accommodation such that the defendant could cause the accommodation
to comply with the ADA.208 Conversely, “non-structural aspects” of the facility’s operations,
including accounting, personnel uniforms and use of trademarks, are irrelevant to the operator
inquiry.209
The Fifth Circuit reviewed the language in the franchise agreements and affirmed the
district court’s holding that this amount of control was insufficient to label ADQ an operator.210
Importantly, the section of the franchise agreement that related to modification of the structure of

204

Id. at 1064.

205

Id.

206

Id. at 1065.

207

Id. at 1066.

Id. at 1067; see also Disabled Rights Action Comm., 375 F.3d at 878 (9th Cir. 2004) (“whether Title III
applies…depends on whether those private entities exercise sufficient control over the Center, and in particular over
the configuration of the facilities, even temporarily, with regard to accessibility, that they can be said to ‘operate’ the
stadium”); Colon v. League of United Latin Am. Citizens, 91 F.3d 140 (5th Cir. 1996) (“[T]o be an ‘operator’ requires
more than simply controlling some aspect of a public accommodation. Rather, the person must have control over the
modification sought by the plaintiff.”).
208

209

Id.

210

Id. at 1067–68.

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franchisee stores provided “that ADQ may disapprove any proposed modifications to the [stores’]
building and equipment.”211 The Fifth Circuit found that while this veto power “does amount to a
limited form of control over structural modifications, [it] cannot support a holding that ADQ
‘operates’ the [stores] with respect to its removal of architectural barriers to the disabled.”212
Additionally, the Fifth Circuit noted that the plaintiff did not offer any evidence showing that ADQ
had previously withheld its consent to proposed modifications that would have brought the stores
it into compliance with the ADA.213
The evidence presented at trial shows that SMG is an operator of the Superdome for
purposes of the ADA. The testimony of Alan Freeman (“Mr. Freeman”), Larry Roedel (“Mr.
Roedel”) and Doug Thornton (“Mr. Thornton”) demonstrate the level of control SMG maintains
over the Superdome. At trial, Mr. Freeman, who was hired by SMG as the general manager of the
Superdome, detailed the relationship between the Board and SMG. 214 Mr. Freeman testified that
the Board does not have a lot of oversight with respect to SMG’s operations and that as the General
Manager of the Superdome, there is no one at the Board he speaks to on a regular basis. 215 Mr.
Freeman testified that the Board does not have any employees.216
Mr. Roedel, who served as general counsel to the Board from 2004 to 2016, testified that
the Board relies on SMG’s accounting, management, and financial expertise.217 Mr. Roedel

211

Id. at 1068.

212

Id.

213

Id.

214

Trial Transcript, March 2, 2020, Alan Freeman, pp. 139–40.

215

Trial Transcript, March 2, 2020, Alan Freeman, p. 140.

216

Trial Transcript, March 2, 2020, Alan Freeman, p. 140.

217

Trial Transcript, March 2, 2020, Larry Roedel, p. 177.

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explained that while the Board meets monthly to approve recommendations, without staff and
employees, the Board is reliant on SMG.218 Mr. Roedel could not recall a single instance during
his time as general counsel when the Board rejected a significant recommendations from SMG.219
Mr. Thornton, who served as regional vice-president of SMG, testified that SMG provides
recommendations with regard to capital improvements.220 Mr. Thornton further testified that SMG
has a fair amount of operational autonomy to manage and operate the Superdome.221 Mr. Thornton
testified that SMG has its own operational division which performs venue assessments to ensure
that the Superdome complies with various regulations, including OSHA, fire safety, and the
ADA.222
Additionally, several agreements between SMG and the Board were offered into evidence
at trial. These agreements further demonstrate SMG’s responsibility for managing and operating
the Superdome. Pursuant to the initial Management Agreement,223 the State of Louisiana
“grant[ed] [SMG] . . . the exclusive right to perform and furnish or cause to be performed and
furnished, from the effective date [t]hereof, all management, services, labor and materials needed
to operate and maintain the Facility known as the ‘Louisiana Superdome’, in the most efficient
and profitable manner as can be reasonably expected.”224 The initial Management Agreement

218

Trial Transcript, March 2, 2020, Larry Roedel, p. 177.

219

Trial Transcript, March 2, 2020, Larry Roedel, p. 87.

220

Trial Transcript, March 2, 2020, Doug Thornton, p. 109.

221

Trial Transcript, March 2, 2020, Doug Thornton, p. 110.

222

Trial Transcript, March 2, 2020, Doug Thornton, p. 111.

223
Rec. Doc. 180-9. HMC Management Corporation was the original “manager” under the initial
Management Agreement. SMG became the “manager” as a result of the Fourth Amendment to Management
Agreement dated June 19, 1998. Rec. Doc. 180-13. The Management Agreement has been amended a total of seven
times. See Rec. Docs. 180-9–180-15.
224

Rec. Doc. 180-9 at 2.

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further provides under the section entitled “Capital Improvements Budget”:
At least six (6) months prior to the commencement of each Fiscal Year, [SMG] will
submit a budget for such Fiscal Year setting forth projected Capital Expenditures.
This budget will be subject to the procedures customarily employed in connection
with the development, approval and implementation of budgets for operating
agencies of the State. In addition, when [SMG] becomes aware, [SMG] will advise
the State of any unanticipated condition which jeopardizes the structural soundness
of the Superdome, or the ability of [SMG] to perform under this agreement, and the
State agrees to make available the funds necessary to correct such conditions,
within such time as required under the circumstances.225
“Capital Expenditures” are defined in the Management Agreement as “all expenditures for
building additions, alterations or improvements, and for purchases of additional or replacement
furniture, machinery or equipment, the depreciable life of which, according to accepted accounting
principles, is in excess of one (1) year and expenditures for maintenance or repairs which extend
the useful life of the assets being maintained or repaired for a period in excess of one year.”226
Pursuant to the Amended and Restated Support Services Agreement, the Board delegated
to SMG responsibility for certain services.227 For example, the “Asset Management” section states:
SMG shall provide all asset management services relating to the Facilities and other
properties of the LSED, including maintenance of inventory control; oversight of
the condition and maintenance requirements of the Facilities; to the extent that
funds supplied by the LSED are made available therefor and the LSED has
authority with respect thereto, see that the Facilities are maintained in good order
and condition; to the extent that funds supplied by the LSED are made available
therefor, rent, lease or purchase all equipment and maintenance supplies necessary
or appropriate for the performance of the LSED’s obligations with respect to the
operation and maintenance of the Facilities; manage all maintenance and capital
projects undertaken by the LSED with respect to the Facilities; and otherwise
perform all services necessary or useful in preserving and protecting the assets of
the LSED. In addition, SMG shall manage any capital projects undertaken by the
LSED with respect to the Superdome and the Arena to the extent such function is
not already within the scope of SMG’s duties and authority under the State

225

Id. at 5–6.

226

Id. at 1.

227

Rec. Doc. 180-18 at 2–4.

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Management Agreement.228
Furthermore, under the Amended and Restated Support Services Agreement SMG is obligated to
“prepare and submit to the LSED . . . each year, proposed capital expenditures with respect to the
facilities,” as well as “a detailed budget for capital projects recommended to be undertaken. . .”229
The issue is whether the evidence shows sufficient control on SMG’s part such that SMG
can be said to “operate” the Superdome with respect to the ability to comply with the ADA.230 The
Court finds that that it does, particularly where SMG has “the exclusive right to perform and
furnish or cause to be performed and furnished . . . all management, services, labor and materials
needed to operate and maintain the” Superdome. 231
The testimony of Mr. Freeman, Mr. Roedel and Mr. Thornton, as well as the language in
the above-mentioned agreements, establishes that SMG has sufficient control such that it
“operates” the Superdome. Specifically, the Court finds that SMG could cause the Superdome to
comply with the ADA. The Management Agreement and the Amended and Restated Support
Services Agreement paint a picture of one entity, SMG, evaluating problems and recommending
solutions and another entity, the Board, approving or rejecting those solutions. In this way, the
relationship between the Board and SMG is symbiotic. This is not an uncommon arrangement, as
“both the legislative history of the ADA and the regulations make clear that management, control,

228

Id. at 2–3.

229

Id. at 5.

Neff, 58 F.3d at 1067; see also Disabled Rights Action Comm., 375 F.3d at 878 (9th Cir. 2004) (“whether
Title III applies…depends on whether those private entities exercise sufficient control over the Center, and in
particular over the configuration of the facilities, even temporarily, with regard to accessibility, that they can be said
to ‘operate’ the stadium”); Colon v. League of United Latin Am. Citizens, 91 F.3d 140 (5th Cir. 1996) (“[T]o be an
‘operator’ requires more than simply controlling some aspect of a public accommodation. Rather, the person must
have control over the modification sought by the plaintiff.”).
230

231

Id.

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and regulation of a place of public accommodation may be allocable between parties.”232
The Board is comprised of seven individuals appointed by the governor and has no
employees.233 On the other hand, SMG is responsible for providing budgets, maintaining the
facility, and managing all maintenance and capital projects undertaken by the Board. This is not a
case of a “franchisor with limited control over a franchisee’s store.”234 Rather, SMG exercises
fairly significant control over the functioning and day-to-day operation of the Superdome.
Accordingly, the Court finds that SMG is an operator of the Superdome under the ADA.
Here, SMG is more akin to the franchisee and the Board is more akin to the franchisor in
Neff. The Management Agreement and the Amended and Restated Support Services Agreement
show that the Board has the power to approve or disapprove of SMG’s proposals. This is analogous
to ADQ’s power to “disapprove any proposed modifications to the [stores’] building and
equipment.”235 The Fifth Circuit found that while one entity’s veto power “does amount to a
limited form of control over structural modifications,” it does not indicate that the other entity does
not operate the facility with respect to the removal of architectural barriers to the disabled.236
Additionally, as in Neff, no evidence has been presented to suggest that the other entity, here the
Board, withheld its consent to proposed modifications that would have brought the Superdome
into compliance with the ADA.237 In fact, the evidence suggests that the Board adopts nearly every

Bowers v. Nat'l Collegiate Athletic Ass’n, 9 F.Supp.2d 460, 485-86 (D.N.J. 1998) (citing 28 C.F.R.
§ 36.201(b); H.R. Rep. No. 101–485(III), at 55–56).
232

233

Trial Transcript, March 2, 2020, Larry Roedel, p. 75; Trial Transcript, March 2, 2020, Alan Freeman, p.

234

Neff, 58 F.3d at 1066.

235

Id. at 1068.

236

Id.

237

Id.

140.

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significant SMG proposal.238 Additionally, if SMG requests funds, the State is obligated to “make
available the funds necessary to correct such conditions, within such time as required under the
circumstances.”239 Accordingly, the Court finds that SMG operates the Superdome in the
“‘ordinary and natural meaning’” of that term.240
C.

Plaintiff’s Claims
Plaintiff argues that the Superdome does not comply with the ADA because it fails to meet

various applicable standards. Plaintiff brings claims against France under Title II of the ADA and
the Rehabilitation Act.241 Plaintiff brings claims against SMG under Title III of the ADA.242
“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.’”243 As discussed below, Plaintiff is
a qualified individual with a disability for purposes of the ADA and any discrimination is by reason
of his disability. To establish the second element of his Title II claim, Plaintiff must show he was
“denied the benefits of services, programs, or activities” for which the Board is responsible, or was
“otherwise discriminated against” by the Board.244
To establish a Title III violation, Plaintiff must show “(1) [he] has a disability; (2)

238

Trial Transcript, March 2, 2020, Larry Roedel, p. 87.

239

Rec. Doc. 180-9 at 6.

240

Neff, 58 F.3d at 1066 (quoting Smith, 508 U.S. at 223; Perrin, 444 U.S. at 42 (1979).

241

Rec. Doc. 1 at 1–2.

242

Id. at 2.

243

Wells v. Thaler, 460 F. App’x 303, 311 (5th Cir. 2012) (quoting Hale v. King, 642 F.3d 492, 499 (5th Cir.

244

Id. (quoting Hale, 642 F.3d at 499).

2011)).

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Defendant owned, leased, or operated a place of public accommodation; and (3) Defendant denied
Plaintiff full and equal enjoyment on the basis of [his] disability.”245 As discussed below, Plaintiff
is a qualified individual with a disability for purposes of the ADA. Additionally, SMG is a private
entity that operates the Superdome, which is a place of public accommodation. Therefore, the first
two elements are met. The Court addresses whether SMG denied Plaintiff full and equal enjoyment
of football games at the Superdome on the basis of his disability below.
1.

Whether Plaintiff has a qualifying disability

The first element of a claim under Title II and Title III of the ADA is that the plaintiff must
have a qualifying disability. An individual has a disability if he or she “[has] a physical or mental
impairment that substantially limits one or more major life activities of such individual.”246
Walking, standing, and breathing are all “major life activities.”247 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.”248
There is no dispute that Plaintiff is a qualifying individual under the ADA. Plaintiff has
muscular dystrophy and relies on a ventilator to breathe and a wheelchair for mobility.249

245

Doe v. Ortho-La Holdings, LLC, No. CV 17-8948, 2018 WL 4613946, at *2 (E.D. La. Sept. 26, 2018)
(Milazzo, J.).
246

42 U.S.C. § 12102(1)(A).

247

Id. at § 12102(2)(A).

248

Id. at § 12131(2).

249

Trial Transcript, March 2, 2020, Shelby Bailey, p. 210.

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Therefore, Plaintiff is substantially limited in the major life activities of walking, standing, and
breathing.250 Accordingly, Plaintiff is a qualified individual with a disability for purposes of Title
II and Title III.251
2.

Whether the discrimination against Plaintiff is by reason of his disability

The third element of a claim under Title II of the ADA is that the plaintiff must show that
he was discriminated against by reason of his disability.252 To show that 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.’”253 In Windham v. Harris Cty., Texas, the
Fifth Circuit explained this requirement as such:
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.254
Here, Plaintiff has been to the Superdome to watch football games many times. Plaintiff
alerted Defendants to his disability and the resulting limitations he experienced. Plaintiff requested
an accommodation. Accordingly, the Court finds that Plaintiff experienced discrimination by

250

Trial Transcript, March 2, 2020, Shelby Bailey, p. 210.

251

Parties did not contest this fact. Rec Doc. 163 at 4.

252

Wells, 460 F. App’x at 311 (quoting Hale, 642 F.3d at 499).

253

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).
254

Id. at 236–37 (internal quotations, ellipsis, and citations omitted) (emphasis in original).

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reason of his disability, thereby establishing the third element of his Title II claim.
3.

Whether Plaintiff is being denied the benefits of a program (as to France) or
the benefits of a place of public accommodation (as to SMG)

Having found that (1) Plaintiff is a qualified individual with a disability for purposes of
Title II and Title III; (2) Plaintiff experienced discrimination by reason of his disability, thereby
establishing the third element of his Title II claim; and (3) SMG is a private entity that operates
the Superdome, which is a place of public accommodation, the Court turns to the last remaining
element of Plaintiff’s Title II and Title III claims. The final element of a claim under Title II and
Title III of the ADA is that the plaintiff 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 or the benefits of a place of public accommodation.255
At trial, Plaintiff advanced four theories of liability: (1) that Defendants violated the
alteration requirement of the ADA; (2) that France violated the program access requirement of
Title II of the ADA; (3) that France violated the equal opportunity regulation of Title II of the
ADA; and (4) that Defendants violated the reasonable accommodation requirement of the ADA.
The Court analyzes each theory of liability below.
D.

Whether Defendants violated the alteration standard of the ADA
1.

Legal standard for alterations

Congress acknowledged that some structures that were built prior to the enactment of the
ADA would be unable to comply with all of the new ADAAG regulations. 256 Accordingly, the
regulations differentiate between structures built prior to the Act taking effect in January 1992

255

Miraglia, 901 F.3d at 574.

256

Greer v. Richardson Indep. Sch. Dist., 472 F. App’x 287, 291 (5th Cir. 2012).

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(“existing facilities”) and facilities built or altered after January 1992 (“altered facilities”).257 As
such, the failure to remove architectural barriers in existing facilities, defined as structures built
prior to the Act taking effect on January 26, 1992, where such removal is readily achievable
constitutes discrimination.258 However, when an existing facility undergoes alterations after the
1992 effective date, more stringent architectural standards apply; then, the alterations “shall be
made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are
readily accessible and usable by individuals with disabilities, including individuals who use
wheelchairs.”259 In sum, existing facilities must satisfy the “readily achievable” standard whereas
altered facilities must comply with the “maximum extent feasible” standard.
Under the regulations implementing Title II of the ADA “[e]ach facility or part of a facility
altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the
usability of the facility . . . shall, to the maximum extent feasible, be altered in such manner that
the altered portion of the facility is readily accessible to and usable by individuals with disabilities.
. . .”260 Under the regulations implementing Title III of the ADA, any alterations to a facility after
1992 must be “made so as to ensure that, to the maximum extent feasible, the altered portions of
the facility are readily accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.”261 The Superdome was built in 1975.262 Therefore, this
heightened “alteration standard” applies only to portions of the facility where an alteration

257

Lane, 541 U.S. at 531–32.

258

42 U.S.C. § 12182(b)(2)(A)(iv).

259

28 C.F.R. § 36.402(a)(1).

260

Id. at § 35.151(b)(1).

261

Id. at § 36.402(a)(1).

262

Parties did not contest this fact. Rec. Doc. 163 at 4.

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occurred.
An alteration is defined as a change that “could affect the usability of the building or facility
or any part thereof.”263 Alterations include events such as remodeling, renovation, rehabilitation,
reconstruction, and changes or rearrangement in structural parts, but typically do not include
normal maintenance or painting.264 The DOJ has instructed that “‘usability’ [is] to be read broadly
to include any change that affects the usability of the facility, not simply changes that relate directly
to access by individuals with disabilities.”265 “[A]ll changes directly relating to access by
individuals with disabilities indisputably affect usability.”266 “Neither the ADA nor the ADAAG
makes clear which party has the burden to prove that an ‘alteration’ did or did not occur. . .”267
Under the alteration standard, the altered portion of the facility must comply fully with
applicable accessibility standards and the ADAAG unless it is “virtually impossible” 268 If
compliance is virtually impossible, “the alteration shall provide the maximum physical
accessibility feasible.”269 Importantly, “[a]ny altered features of the facility that can be made
accessible shall be made accessible.”270

263

28 C.F.R. § 36.402(b). See also id. at § 35.151(b)(1).

264

Id. at § 36.402(b)(1).

265

28 C.F.R. Pt. 36, App. C.

266

Tatum, 2016 WL 852458, at *4.

267

Rodriguez v. Barrita, Inc., 10 F.Supp.3d 1062, 1082 n. 17 (N.D. Cal. 2014).

268

28 C.F.R. § 36.402(c).

269

Id.

270

Id.

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2.

Preliminary alterations issues
i.

Whether an alteration took place

On March 11, 2010, construction commenced on renovations to the Superdome (the “2010
Renovations”).271 As part of the 2010 Renovations, the sideline seats in the 100 Level were
removed and replaced with new, permanent, fixed seats.272 However, the first nine or ten rows of
the sideline seats in the 100 Level are demountable so they can be removed for events where more
floor space is needed.273 A total of 17,118 seats along the sidelines of the lower bowl were replaced
as part of the 2010 Renovations.274 Additionally in 2010, the temporary platforms Plaintiff and
other wheelchair users previously sat at were removed.275 The “Bunker Club,” premium club
seating featuring enhanced fan amenities, was also added as part of the 2010 renovations.276
Additionally, the sideline concourses in the 100 Level were widened.277
The 2010 Renovations created four separate decks on the bottom-most row of the 100
Level.278 Those decks are located between the 30 and 40 yard lines and accommodate a total of 24
wheelchair seats and 24 companion seats.279 Additional new, designated wheelchair accessible
seats were also constructed on Row 36 in each section along the sidelines of the 100 Level as part

271

Parties did not contest this fact. Rec. Doc. 163 at 4.

272

Parties did not contest this fact. Id. at 5.

273

Trial Transcript, March 2, 2020, Alan Freeman, p. 143; Trial Transcript, March 2, 2020, Doug Thornton,

274

Parties did not contest this fact. Rec. Doc. 163 at 5.

275

Trial Transcript, March 2, 2020, Doug Thornton, p. 135.

276

Trial Transcript, March 2, 2020, Alan Freeman, p. 169.

277

Trial Transcript, March 2, 2020, Alan Freeman, p. 143.

278

Parties did not contest this fact. Rec. Doc. 163 at 5.

279

Parties did not contest this fact. Id.

p. 113.

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of the 2010 Renovations, except for the seven sections located in each end zone. 280 The seats in
the end-zone, consisting of 8,342 seats, were not renovated in 2010.281
Here, the 2010 Renovations clearly qualify as an alteration. The changes described above
“could affect the usability of the building or facility or any part thereof.”282 The DOJ has instructed
that “‘usability’ [is] to be read broadly to include any change that affects the usability of the
facility, not simply changes that relate directly to access by individuals with disabilities.”283 The
extensive changes described above involved events such as remodeling, renovation, rehabilitation,
reconstruction, and changes or rearrangement in structural parts.284 Accordingly, the Court finds
as a matter of law that the changes associated with the 2010 Renovations amounted to an alteration
under the ADA.
ii.

Where the alteration took place

Pursuant to the regulation implementing Title II, “[e]ach facility or part of a facility altered
. . . shall, to the maximum extent feasible, be altered in such manner that the altered portion of the
facility is readily accessible to and usable by individuals with disabilities. . . .”285 The regulation
implementing Title III states “[a]ny alteration to a place of public accommodation or a commercial
facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible,
the altered portions of the facility are readily accessible to and usable by individuals with

280

Parties did not contest this fact. Id.

281

Parties did not contest this fact. Id.

282

28 C.F.R. § 36.402(b). See also id. at § 35.151(b)(1).

283

28 C.F.R. Pt. 36, App. C.

284

Id. at § 36.402(b)(1).

285

Id. at § 35.151(b)(1) (emphasis added).

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disabilities, including individuals who use wheelchairs.”286 Therefore, these regulations are
confined to “the altered portions of the facility.”287
The parties disagree about precisely which portion the Superdome was altered. Plaintiff
argues that the entire 100 Level was altered and therefore, the entire 100 Level is subject to the
alteration requirement.288 SMG argues that because the 2010 Renovations only altered the 100
Level seating along the sidelines, the alteration standard is only applicable to that seating; in other
words, it would not apply to the seating in the end zones of the 100 Level, which were not altered
as a part of the 2010 Renovations.289
In Mannick v. Kaiser Found. Health Plan, Inc., a district judge in the United States District
Court for the Northern District of California determined that renovations to two floors of a
maternity ward did not trigger any obligation with regard to the patient rooms on other floors.290
The court reached this conclusion because “the undisputed evidence provided by defendants shows
that there was no alteration or remodeling of the patient rooms that triggered an obligation to
provide an accessible patient room on one of the medical-surgical floors.”291 A partial alteration
does not trigger alteration obligations to unrelated or unaltered areas of the facility. 292
In Brother v. CPL Investments, Inc., a district judge in the United States District Court for

286

Id. at § 36.402(b) (emphasis added).

287

Id. at § 35.151(b)(1).

288

Rec. Doc. 172 at 45.

289

Rec. Doc. 174 at 59–60.

290

Mannick v. Kaiser Found. Health Plan, Inc., No. C 03-5905 PJH, 2006 WL 1626909, at *11 (N.D. Cal.
June 9, 2006).
291

Id.

292

See Cherry v. City College of San Francisco, No. 04-04981, 2006 U.S. Dist. LEXIS 98661, at *9 (N.D.
Cal. Jan. 12, 2006) (addressing Title II claims and rejecting plaintiff’s argument that “any partial alteration triggers a
federal duty to renovate the entire building”).

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the Southern District of Florida determined that a construction project which added additional
rooms to the first floor of a hotel did not trigger the stricter new construction standard to the entire
hotel.293 “Undertaking an alteration in one portion of an existing facility does not automatically
make the entire existing facility subject to the new construction standards.”294
As stated above, the alteration regulations are confined to “the altered portions of the
facility.”295 Therefore, Plaintiff’s alteration claims are limited to the portions of the Superdome
where alterations occurred. The language of the regulations contemplates a portion by portion
analysis.296 In both Brother and Mannick, the district courts considered which portion of the
facility could be fairly said to be altered and excluded the portions of the facility where no
alteration had occurred. Using these cases as guidance, the Court finds that the alteration standard
does not apply to the entire facility simply because a portion of that facility underwent an
alteration. Accordingly, the alteration standard does not apply to the entire Superdome simply
because the 100 Level underwent an alteration.
However, based on the extensive renovations described above, the Court finds that the 100
Level is the altered portion of the facility. The Court interprets the word “portion” of a facility to
refer to discrete section of the facility. For example, the entire floor of a hospital or a hotel. The
Court will not further subdivide the 100 Level into discrete portions (i.e. just the sideline seating).
As part of the 2010 Renovations, the sideline seats in the 100 Level were removed and replaced
with new, permanent, fixed seats.297 The “Bunker Club,” premium club seating featuring enhanced

293

317 F.Supp.2d 1358, 1370 (S.D. Fla. 2004).

294

Id.

295

28 C.F.R. § 35.151(b)(1); 28 C.F.R. § 36.402(b).

296

See 28 C.F.R. § 35.151(b)(1); 28 C.F.R. § 36.402(b).

297

Parties did not contest this fact. Rec. Doc. 163 at 5.

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fan amenities, was also added as part of the 2010 renovations.298 Additionally, the sideline
concourses in the 100 Level were widened.299 These changes affect the use of the 100 Level;
therefore all aspects of the 100 Level must comply with the alteration standard. Accordingly, the
Court finds that the entirety of the 100 Level, including the endzone seats, are subject to the
alteration standard, because they are within the portion of the facility that was altered.
Lastly, at trial, the Court determined that Plaintiff failed to raise an alteration claim as to
the 200 Level in the Complaint and was therefore precluded from raising the issue at trial.300 The
record contains some evidence concerning certain repairs conducted at the 200 Level following
Hurricane Katrina. However, Plaintiff conceded that an alteration claim as to the 200 Level was
not raised in the Complaint.301 Accordingly, because Plaintiff did not assert a 200 Level alteration
claim in the Complaint, and did not move to amend the Complaint, the Court determined that it
was not an issue at trial.302
In sum, the 2010 Renovations constituted an alteration to the entirety of the 100 Level
under the statute and regulations. As as consequence of that determination, Defendants are
obligated to ensure access to the maximum extent feasible.

298

Trial Transcript, March 2, 2020, Alan Freeman, p. 169.

299

Trial Transcript, March 2, 2020, Alan Freeman, p. 143.

300

At trial, SMG objected to a question related to alterations at the 200 Level of the Superdome on the basis
of relevancy. Rec. Doc. 170 at 44. France joined in the objected. Id. at 45. SMG argued that Plaintiff’s alteration claim
in the Complaint was limited to 2010 Renovations, which only impacted the 100 Level of the Superdome. Id. at 44–
45. Plaintiff represented that the renovations to the 200 Level occurred following hurricane Katrina and should qualify
as an alteration. Id. at 49–50. However, Plaintiff conceded that an alteration claim as to the 200 Level was not in the
Complaint. Id. at 51. Accordingly, because Plaintiff did not assert a 200 Level alteration claim in the Complaint, and
did not move to amend the Complaint, the Court determined that it was not an issue at trial. Id. at 44–54. However,
the Court clarified that evidence related to the 200 Level for other claims, including the program access claim, may
still be admissible. Id. at 53–54.
301

Id. at 51.

302

Id. at 44–54.

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iii.

The burden of proof under the alteration standard

The parties disagree about the appropriate burden of proof Plaintiff must meet to establish
a violation of the alteration standard. Plaintiff argues that to prevail on an alteration claim, he must
merely show: (1) that there has been an alternation and (2) that the altered area does not comply
with the ADA Accessibility Guidelines.303 Plaintiff contends that another section of this Court
previously utilized this standard in an ADA case.304
SMG contends that Plaintiff has the initial burden of showing both (1) a violation of the
ADA and (2) “some manner in which the alteration could be, or could have been made, ‘readily
accessible and usable by individuals with disabilities, including individuals who use
wheelchairs.’”305 SMG argues that this Court should adopt the reasoning of the Second Circuit in
Roberts v. Royal Atl. Corp.306
The Roberts court analyzed when a facility is considered “altered” under the ADA. 307 In
making this determination, the Second Circuit first “consider[ed] who bears the burden to establish
that a modification is or is not an alteration.”308 Adopting the reasoning of the Second Circuit’s
prior decision in Borkowski v. Valley Central School District,309 the Second Circuit stated that “in
applying the Rehabilitation Act and related statutes, our case law bars us from placing both the
initial burden of production and the ultimate burden of persuasion on either the plaintiff or the

303

Rec. Doc. 172 at 41.

304

See Tatum v. Doctor's Assocs., Inc., No. CV 14-2980, 2016 WL 852458 (E.D. La. Mar. 4, 2016).

305

Rec. Doc. 174 at 61 (citing Roberts v. Royal Atl. Corp., 542 F.3d 363, 372 (2d Cir. 2008)).

306

542 F.3d 363 (2d Cir. 2008).

307

Id. at 369–71.

308

Id. at 370.

309

63 F.3d 131 (2d Cir. 1995).

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defendant.”310 Therefore, the Second Circuit adopted a “middle course,” in which a plaintiff
seeking to establish a reasonable accommodation “bears only a burden of production” that “is not
a heavy one.”311 Accordingly, “[t]o establish the existence of an alteration, a plaintiff fulfills his
or her initial burden of production by identifying a modification to a facility and by making a
facially plausible demonstration that the modification is an alteration under the ADA. The
defendant then bears the burden of persuasion to establish that the modification is in fact not an
alteration.”312 In sum, the Second Circuit held that in determining whether a modification to a
facility constitutes an alteration, the plaintiff has the initial burden of production by identifying a
modification to a facility and by making a facially plausible demonstration that the modification
is an alteration under the ADA.313
Next, the Roberts court analyzed the second step under the alteration standard, namely
when is a facility deemed “altered” made readily accessible and usable to the “maximum extent
feasible.”314 The Second Circuit again applied the burden-shifting approach articulated in
Borkowski to the “maximum extent feasible” standard and held that “once a plaintiff has met an
initial burden of production identifying some manner in which the alteration could be, or could
have been, made ‘readily accessible and usable by individuals with disabilities, including
individuals who use wheelchairs,’ the defendant then bears the burden of persuading the factfinder
that the plaintiff’s proposal would be ‘virtually impossible’ in light of the ‘nature of the

310

Roberts, 542 F.3d at 370.

311

Borkowski, 63 F.3d at 137–38.

312

Roberts, 542 F.3d at 371.

313

Id.

314

Id. at 371–73.

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facility.’”315
Here, the Court finds that Plaintiff’s interpretation of the alteration standard––requiring
Plaintiff to show only that there has been an alternation and that the altered area does not comply
with the ADA Accessibility Guidelines––is more in line with the regulatory text. Pursuant to the
regulations implementing Title III, “[a]ny alteration to a place of public accommodation . . . after
January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered
portions of the facility are readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs.”316 Public accommodations built or altered after
January 26, 1992, must comply with both the Title III regulations set forth at 28 C.F.R. part 36,
subpart D and the ADAAG unless “the nature of an existing facility makes it virtually impossible
to comply fully with applicable accessibility standards through a planned alteration.” 317 Neither
regulation explicitly or implicitly requires a plaintiff to identify “some manner in which the
alteration could be, or could have been, made ‘readily accessible and usable by individuals with
disabilities, including individuals who use wheelchairs . . .’”318 SMG does not cite any binding
authority that would require this Court to impose such a heightened burden. Therefore, the Court
declines to impose such an additional burden on plaintiffs pursuing ADA relief. Accordingly,
Plaintiff has the initial burden of showing that there has been alteration and that the altered area is
not compliant with the ADAAG. If Plaintiff meets this initial burden, the burden shifts to
Defendants to show that compliance with the ADAAG was virtually impossible.

315

Id. at 372 (quoting 42 U.S.C. § 12183; 28 C.F.R. § 36.402).

316

28 C.F.R. § 36.402(a)(1).

317

28 C.F.R. § 36.402(c).

318

Roberts, 542 F.3d at 372 (quoting 42 U.S.C. § 12183; 28 C.F.R. § 36.402).

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Even under the heightened burden-shifting framework established by the Second Circuit,
a plaintiff only has the “initial burden of production identifying some manner in which the
alteration could be, or could have been, made ‘readily accessible and usable by individuals with
disabilities.’”319 Even if this Court were to adopt the Second Circuit’s heightened burden-shifting
framework, the Court finds that Plaintiff has identified some manner in which the alteration could
be, or could have been, made readily accessible.320 For example, Plaintiff’s expert, Mr. Terry
suggested moving the Row 1 seats from their current position to a position between the 30 yard
line and the endzone.321 SMG argues that because Mr. Terry did not fully evaluate the extent to
which the proposed solutions would affect accessibility, Plaintiff failed to meet the Robert
burden.322 Specifically, Mr. Terry declined to opine at trial over whether his proposed solutions
would achieve ADA compliance.323
Under Roberts, a plaintiff’s burden of identifying some manner in which an alteration could
have been accessible or useable by individuals with disabilities suggests the bar for production is
fairly low. Certainly, it cannot be the case that a plaintiff must produce detailed architectural
drawings and opine with certainty that proposed solutions would definitively result in ADA

319

Id. (quoting 42 U.S.C. § 12183; 28 C.F.R. § 36.402).

320
See Rodriguez, 10 F.Supp.3d at 1082 n. 17 (“Neither the ADA nor the ADAAG makes clear which party
has the burden to prove that an ‘alteration’ did or did not occur, nor has the Ninth Circuit clarified the issue. In Roberts
v. Royal Atl. Corp., the Second Circuit adopted a burden-shifting scheme for establishing whether a public
accommodation experienced a qualifying alteration . . . The court in Roberts reasoned that while plaintiffs should
generally be capable of pointing to an initial modification potentially constituting an alteration, defendants ‘can be
expected to have superior access to information with which to refute assertions that their facilities have been altered
within the meaning of the statute and the applicable regulations and commentary.’ Here, ascertaining where the burden
rests is not critical in that the conclusion of ‘no alteration’ arises under either formulation. Even if, consistent with
Roberts, defendants in the Ninth Circuit must shoulder the burden of persuasion, defendants here have successfully
established that the fire repairs did not constitute an alteration.”).
321

Trial Transcript, March 2, 2020, James Terry, pp. 260–62.

322

Rec. Doc. 174 at 64.

323

Trial Transcript, March 3, 2020, James Terry, pp. 290–91.

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compliance in order to bring an alteration claim. Accordingly, the Court finds that Plaintiff has
identified “some manner” in which the alterations to the L00 level could be, or could have been,
made readily accessible to and usable by individuals with disabilities.
3.

Experts

Plaintiff claims that Defendants violated the ADA because the sightlines from wheelchair
accessible seats to the field, Jumbotron and aerial play are not comparable to the sightlines from
the seating provided to the general public. Specifically, Plaintiff claims that he is unable to see
elements of football games at the Superdome because either a) spectators seated in the row in front
of him stand during the game, and the Superdome has not been properly designed to provide a
view of the field over standing spectators, b) the concrete overhang prevent Plaintiff from viewing
aerial play or c) the players and coaches prevent Plaintiff from seeing the field.
Both parties employed experts to evaluate the sightlines from the Row 1 and Row 36
accessible seating. Plaintiff retained Jim Terry while Defendants retained Mark Mazz. Both
experts presented competing opinions regarding whether the sightlines violate the regulations. The
Court must therefore assess the weight to afford the opinions offered by the two experts.
i.

James Terry’s methodology

Plaintiff primarily relies on the report and testimony of his expert witness, Mr. James Terry
(“Mr. Terry”) for the proposition that Defendants violated the sightline requirements of the
regulations. At trial, Mr. Terry testified that, in his opinion, the sightlines from wheelchair
accessible seats at Row 1 and Row 36 of the Superdome are not comparable to the sightlines from
general public seats.324 Mr. Terry based his opinion on observations and measurements he made

324
Trial Transcript, March 2, 2020, James Terry, p. 236 (Row 1); Trial Transcript, March 2, 2020, James
Terry, p. 239 (Row 36).

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during a tour of the Superdome. During that tour, Mr. Terry took numerous photographs of the
field from various locations in the Superdome.325
At trial, Mr. Terry described his methodology. Mr. Terry used a tape measure or a
carpenter’s ruler to measure the average eye height of a wheelchair user in an accessible seat and
placed his camera in that location (for example, from Row 36).326 Mr. Terry then had an assistant
hold a carpenter’s ruler at the seat directly in front of the seat just measured to measure the height
of both the shoulders and head of a standing spectator (for example, from Row 35).327 Mr. Terry
used a carpenter’s ruler to measure the height of the head of a standing spectator seated two rows
in front the wheelchair user (for example, Row 34).328 Mr. Terry then took a photograph from the
eye height of the wheelchair user, marking where the shoulders and head of a standing spectator
in the seat directly in front of the wheelchair user would fall in the photograph.329 Mr. Terry did
not use a tripod to stabilize his camera while taking the photographs.330 Mr. Terry replicated this
process, going one row forward and marking where the head of a standing spectator in the seat two
rows in front of the wheelchair user would fall in the photograph.331 Mr. Terry did not review the
architectural drawings for the 2010 Renovations in preparing his report.332
This process allowed Mr. Terry to gauge what a wheelchair user would see when standing

325

Trial Transcript, March 2, 2020, James Terry, pp. 236–37.

326

Trial Transcript, March 2, 2020, James Terry, pp. 241–42.

327

Trial Transcript, March 2, 2020, James Terry, p. 242.

328

Trial Transcript, March 2, 2020, James Terry, p. 242.

329

Trial Transcript, March 2, 2020, James Terry, pp. 245–46.

330

Trial Transcript, March 2, 2020, James Terry, p. 244.

331

Trial Transcript, March 2, 2020, James Terry, pp. 245–46.

332

Trial Transcript, March 3, 2020, James Terry, pp. 285–86.

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spectators in each of the two rows immediately in front of him stood up. Mr. Terry opined this
method is “the easiest way to see what somebody would actually see from a wheelchair position
and from a standing spectator’s position.”333 Mr. Terry then repeated this process to gauge the
approximate vantage of a standing spectator from a nonaccessible seat (for example, Row 35)
looking over the shoulders of an average-height standing spectator in the row immediately in front
of him (for example, Row 34) and over the heads of standing spectators two rows in front (for
example, Row 33).334
Mr. Terry imported these photographs to the “CAD file” a tool used by architects to
digitally draw lines to denote where the standing spectators’ heads and shoulders would fall.335
This allowed Mr. Terry to compare the vantages of a wheelchair user in an accessible seat
attempting to see over the head and shoulders of standing spectators in the two rows in front of
him with the vantages of a standing spectator in a nonaccessible seat attempting to see over the
head and shoulders of standing spectators in the two rows in front of him.336 Mr. Terry utilized the
same measuring techniques for sightline analysis while working as a consultant for the Department
of Justice on approximately 20 cases.337 Mr. Terry stated that his measurements were within a 2%
margin of error.338
These comparative illustrations were introduced into evidence as Plaintiff’s Exhibit 14.339

333

Trial Transcript, March 2, 2020, James Terry, p. 237.

334

Trial Transcript, March 2, 2020, James Terry, p. 246.

335

Trial Transcript, March 2, 2020, James Terry, pp. 237, 245.

336

Trial Transcript, March 2, 2020, James Terry, p. 247.

337

Trial Transcript, March 2, 2020, James Terry, p. 244.

338

Trial Transcript, March 3, 2020, James Terry, p. 324.

339

Rec. Doc. 179-14.

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Mr. Terry denoted the Section of the Superdome from which the photograph was taken. 340 The
illustrations show that a wheelchair user in an accessible seat consistently sees less of the field
than comparable standing spectator in nonaccessible seat sees. Plaintiff argues that these
illustrations and Mr. Terry’s testimony show that a wheelchair user in an accessible wheelchair
seat cannot not see the field over the head of a spectator standing directly in front of them where
comparable standing spectator in nonaccessible seat can. Therefore, Plaintiff contends that the
Superdome does not provide the sightlines required by Section 4.33.3 of the 1991 ADAAG.
ii.

Mark Mazz’s methodology

Defendants respond that the sightlines at Row 1 and Row 36 do not violate the ADA’s
sightline requirements. In support, Defendants rely on the report and testimony of their expert
witness, Mr. Mark Mazz (“Mr. Mazz”).
Mr. Mazz utilized a very similar methodology to the methodology Mr. Terry used to
generate sightline comparisons.341 Mr. Mazz took photographs at various locations throughout the
Superdome and used tape measures to determine where the head and shoulders of standing
spectators would be to determine how much of the field would be blocked.342 Mr. Mazz used the
same horizontal and vertical measurements as Mr. Terry to determine the position and location of
the camera.343 Mr. Mazz placed his camera on a tripod to ensure it was steady while taking the

340

See id.

341

Trial Transcript, March 3, 2020, Mark Mazz, pp. 369–70.

342

Trial Transcript, March 3, 2020, Mark Mazz, pp. 369–70.

Trial Transcript, March 3, 2020, Mark Mazz, pp. 365, 409 (“I set my camera on a tripod, set the lens at
47.45 inches, 30 inches back from if wheelchair spaces, set the tape measures for the height of the standing spectator
two rows in front at 67.65, I think the dimensions are and took a photo. From that photo, I drew a line where it crossed
the field. I plotted it out on the floor plan here.”).
343

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photograph and to ensure consistency as to height.344
Mr. Mazz then compared his findings to Mr. Terry’s findings and to the architectural
drawings from the 2010 Renovations.345 Mr. Mazz opined that Mr. Terry’s 2% margins of error is
“way too tight” due to the high number of factors the photographer must take into account in taking
these photographs.346 Mr. Mazz noted that potential error can occur in a variety of ways in taking
these photographs; for example, if the carpenter ruler is not perfectly straight and vertical.347 Mr.
Mazz assumed an 8% margin of error.348 Mr. Mazz ultimately concluded that based on his
measurements, a wheelchair user in Row 36 has a comparable line of sight to a standing spectator
in Row 35.349
Ultimately, the Court is faced with competing expert testimony reaching opposite
conclusions with regard to sightlines. Here, the Court affords Mr. Mazz’s testimony more weight
than Mr. Terry’s testimony and contrary findings. As discussed above, Mr. Terry did not use a
tripod to stabilize the camera and ensure the accuracy of its height.350 Conversely, Mr. Mazz placed
his camera on a tripod to ensure it was steady while taking the photograph and to ensure

344

Trial Transcript, March 3, 2020, Mark Mazz, p. 367.

345

Trial Transcript, March 3, 2020, Mark Mazz, p. 406.

Trial Transcript, March 3, 2020, Mark Mazz, p. 368 (“I think a 2 percent margin of error is way too tight.
I think the -- I -- as Jim had -- Mr. Terry had mentioned how many things that he took into consideration, he was
actually taking the things that he could visually measure upon his tape measure. I'm not sure how he did that going
back and forth from his actual lens, calculating it into the computer and stuff. But what he's doing is he's correcting
for the things that he has knowns -- knows can be the errors. When you put in the margin of error, it's for the things
that you can't be sure are there or not, but you know can occur. So you've got to apply a margin of error to everything
you do.”).
346

347

Trial Transcript, March 3, 2020, Mark Mazz, p. 365.

348

Trial Transcript, March 3, 2020, Mark Mazz, p. 364.

349

Trial Transcript, March 3, 2020, Mark Mazz, p. 369.

350

Trial Transcript, March 2, 2020, James Terry, p. 244.

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consistency as to height.351 The Court finds that the slightest error – a camera or ruler that is not
perfectly straight – can dramatically alter the calculations of sightlines to a field that is hundreds
of feet away.352 For these reasons, the Court affords more weight Mr. Mazz’s testimony than Mr.
Terry’s testimony where their findings contradict.
4.

Whether the Superdome has achieved accessibility to the maximum extent
feasible

As discussed above, the Court finds that the 100 Level of the Superdome was altered during
the 2010 Renovations; accordingly, the entirety of the 100 Level is subject to the alteration
standard. Under the alteration standard, Plaintiff must show that Defendants failed to achieve
accessibility “to the maximum extent feasible.”353 “Accessibility” refers to whether the alterations
comply with the requirements of the applicable ADAAG.354 As discussed above, the Court finds
that the 1991 ADAAG applies to the alterations from the 2010 Renovations. Specifically, the
Superdome must comply with the two requirements in Section 4.33.3 of the 1991 ADAAG: (1)
“provide people with physical disabilities a choice of admission prices and lines of sight
comparable to those for members of the general public” (the “Sightline Requirement”) and (2)

351

Trial Transcript, March 3, 2020, Mark Mazz, p. 367.

Trial Transcript, March 3, 2020, Mark Mazz, p. 366–67 (“Now, we're measuring these distances over
something short of 8 feet, whether it be from a wheelchair space to the head of the standing spectator or a little more
than 5 feet from between the eye of the standing spectator to the head of the standing spectator. We're measuring very
small distances, but we have to project this out across to the field which is several hundred feet away. So whatever
minor errors that occur during measuring across a small triangle, get magnified when you go out the distance of the
field . . . I placed my camera on a tripod so that I know – so that it is steady and stays in the same place. If you're
holding a camera, even your heartbeat can move the camera during the shot. You don't know precisely when you take
it. You also must constantly take a look at where that – where the tape measure is compared to where you're holding
the camera. Also, if you're looking down to take the camera -- take the picture and looking at your lenses, you got this
problem looking down to the tape measure through the camera lens, you can get a false reading that way.”).
352

353

42 U.S.C. § 12183(a)(2).

1991 ADAAG at § 3.5 (defining “accessible” as “[d]escrib[ing] a site, building, facility, or portion thereof
that complies with these guidelines”); 2010 ADAAG at § 106.5 (defining “accessible” to mean “[a] site, building,
facility, or portion thereof that complies with this part”).
354

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ensure that seating for wheelchair-bound persons “be an integral part of any fixed seating plan”
(the “Dispersion Requirement”). The Fifth Circuit has held that the requirement to provide
comparable lines of sight is to be considered separate and apart from the dispersal requirement.355
Accordingly, the Court addresses the Sightline Requirement first and the Dispersion Requirement
second. Lastly, as discussed above, the DOJ’s interpretations of the regulations that existed during
the 2010 Renovations, including the 1993 TAM, the 1994 Supplement, and the Accessible
Stadiums guideline, are entitled to Auer deference.
i.

Whether there is a sightline obstruction at Level 100, Row 36

First, the Court addresses Section 4.33.3’s mandate to “provide people with physical
disabilities a choice of admission prices and lines of sight comparable to those for members of the
general public.” The phrase “comparable lines of sight” “lack[s] a concrete meaning” and is
“[p]lagued by an opaque regulation and minimal legislative history.”356 This led to various
interpretations as to what is exactly required of facilities with stadium-style seating.357
The first courts to consider this issue generally found that Section 4.33.3 required
unobstructed views to the performance area or screen.358 The government then began to advocate

Lara, 207 F.3d at 787 (“First, the “lines of sight” language is entirely divorced from the dispersal
requirement. The provision requiring multiple seating locations comes at the end of the regulation and does not in any
way modify the earlier requirements.”).
355

356

United States v. AMC Entm’t, Inc., 549 F.3d 760, 764 (9th Cir. 2008).

357
Id. at 767 (concluding that “the tally of the different circuits' opinions as to § 4.33.3 was as follows: in the
Third Circuit § 4.33.3 did not even require an unobstructed view; in the D.C. Circuit § 4.33.3 mandated that some
seats had an unobstructed view; in the Fifth Circuit the provision required an unobstructed view but not comparable
viewing angles; and in the First, Sixth and Ninth Circuits § 4.33.3 mandated some sort of comparable viewing angle.
Three of the circuits considering the issue credited the DOJ's interpretation, but two of those three expressed
skepticism as to the possibility of retroactive relief. All circuits considering § 4.33.3 found common ground on the
proposition that the regulation was vague or ambiguous.”).
358

Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), abrogated by Perez v.
Mortg. Bankers Ass'n, 575 U.S. 92 (2015) (interpreting Section 4.33.3 to require that some accessible seating provide
an unobstructed view over standing spectators at sporting events.); but see Caruso v. Blockbuster–Sony Music

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for the litigation position that Section 4.33.3 requires that wheelchair users be offered comparable
“viewing angles” as nondisabled persons.359 The Fifth Circuit rejected this “viewing angles”
theory.360 The Fifth Circuit reasoned that because “questions regarding ‘viewing angle’ did not
arise until well after the DOJ promulgated section 4.33.3” the phrase “lines of sight” refers to
nothing more than “unobstructed views.”361 Accordingly, Section 4.33.3 does not require a facility
“to provide disabled patrons with the same viewing angles available to the majority of nondisabled patrons.”362
In the 1994 Supplement, the DOJ interpreted Section 4.33.3 to require wheelchair users be
provided lines of sight over spectators who stand.363 In Accessible Stadiums, the DOJ defined a
“comparable line of sight” to allow for a person using a wheelchair to see the playing surface
between the heads and over the shoulders of the person standing in the row immediately in front
and over the heads of the persons standing two rows in front.364 Since Accessible Stadiums is the
DOJ’s most contemporaneous interpretation of Section 4.33.3, that standard is entitled to
deference.365
Therefore, the Courts finds that the applicable standard is: “[a] comparable line of sight . . .

Entertainment Centre at Waterfront, 193 F.3d 730, 736 (3d Cir. 1999) (finding that Section 4.33.3 “does not reach the
issue of sightlines over standing spectators.”).
359

Lara v. Cinemark USA, Inc., No. EP–97–CA–502–H, 1998 WL 1048497, at *2 (W.D. Tex. August 21,
1998), rev'd, 207 F.3d 783 (5th Cir. 2000).
360

Lara, 207 F.3d at 789.

361

Id. at 788–89.

362

Id. at 789.

363

See Title III Technical Assistance Manual 1994 Supplement (1994), https://www.ada.gov/taman3up.html.

364

Department of Justice, Accessible Stadiums 2 (1996), https://www.ada.gov/stadium.pdf.

365

Landis, 2019 WL 7157165 at *14.

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allows a person using a wheelchair to see the playing surface between the heads and over the
shoulders of the persons standing in the row immediately in front and over the heads of the persons
standing two rows in front.”366 In other words, to comply with Section 4.33.3 of the 1991 ADAAG,
the sightlines at the Superdome must provide wheelchair users views of “the playing surface
between the heads and over the shoulders of the persons standing in the row immediately in front
and over the heads of the persons standing two rows in front.”367
a.

The playing field

Plaintiff testified that he could not see the playing field during a Saints game from his seat
in Row 36.368 Plaintiff’s expert Mr. Terry testified that, when it comes to the last few rows of the
100 Level, nondisabled individuals have a better view than disabled individuals.369 Specifically,
Mr. Terry testified that wheelchair users in Row 36 could see 78% of the field over the tops of the
heads of average height people standing two rows ahead of them on Row 34 while a comparable
spectator in Row 35 could see 91% of the field.370 Mr. Terry testified that both wheelchair users
in Row 36 and standing spectators in Row 35, can see the entire playing field over the shoulders
and between the heads of persons standing one row in front of them (Row 35 and Row 34,
respectively).371 Plaintiff introduced into evidence photographs Mr. Terry took from Row 36

366

Department of Justice, Accessible Stadiums 2 (1996), https://www.ada.gov/stadium.pdf.

367

Id.

368

Trial Transcript, March 2, 2020, Shelby Bailey, p. 212.

369

Trial Transcript, March 2, 2020, James Terry, p. 250.

370
Trial Transcript, March 2, 2020, James Terry, pp. 247–50; Rec. Doc. 179-14 at 2. Plaintiff’s Exhibit 14
shows that comparable standing can see 98% of the field. See id. Mr. Terry testified that this number was in error, and
the correct figure is 91%. See Trial Transcript, March 2, 2020, James Terry, p. 249.
371

Trial Transcript, March 2, 2020, James Terry, p. 248; Trial Transcript, March 3, 2020, James Terry, pp.

331–32.

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during a football game at the Superdome to provide a visual reference.372
Mr. Mazz also took measurements from Row 36 of the 100 Level and compared his
measurements to Mr. Terry’s measurement as well as measurements calculated from the
architectural drawings from the 2010 Renovations.373 Mr. Mazz’s first sightline measurement
came from a wheelchair user in Row 36.374 Mr. Mazz found that his measurements were
“surprise[ingly] close” to the architectural drawings.375 Mr. Mazz also found that a wheelchair user
in Row 36 could see more of the field than what Mr. Terry’s measurement showed.376
Mr. Mazz’s next sightline measurement came from a standing spectator in Row 35.377 Mr.
Mazz found that his measurements were within 1% of the measurements from the architectural
drawings.378 Mr. Mazz also found that a standing spectator in Row 35 could see less of the field
than what Mr. Terry’s measurement showed.379 Mr. Mazz ultimately concluded that the sight lines
for a wheelchair user in Row 36 was comparable, and in fact, “almost identical” to the sight lines
of a standing spectator in Row 35.380
Here, the Court finds that the lines of sight to the playing field from the Row 36 accessible
seating provide wheelchair users lines of sight comparable to those for members of the general

372

Trial Transcript, March 3, 2020, James Terry, p. 339; Rec. Docs. 180-26, 180-27, 180-29, 180-29.

373

Trial Transcript, March 3, 2020, Mark Mazz, p. 406.

374

Trial Transcript, March 3, 2020, Mark Mazz, p. 406.

375

Trial Transcript, March 3, 2020, Mark Mazz, p. 407.

376

Trial Transcript, March 3, 2020, Mark Mazz, p. 407.

377

Trial Transcript, March 3, 2020, Mark Mazz, p. 408.

378

Trial Transcript, March 3, 2020, Mark Mazz, p. 408.

379

Trial Transcript, March 3, 2020, Mark Mazz, p. 407.

380

Trial Transcript, March 3, 2020, Mark Mazz, p. 369.

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public. Mr. Terry testified that wheelchair users in Row 36 could see 78% of the field over the tops
of the heads of average height people standing two rows ahead of them on Row 34 while a
comparable spectator in Row 35 could see 91% of the field.381 Mr. Terry testified that both
wheelchair users in Row 36 and standing spectators in Row 35, can see the entire playing field
over the shoulders and between the heads of persons standing one row in front of them. 382 Mr.
Mazz, whose measurements were within 1% of the architectural drawings, found that a standing
spectator in Row 35 could see less of the field than what Mr. Terry’s measurement showed.383 Mr.
Mazz ultimately concluded that the sight lines for a wheelchair user in Row 36 was comparable,
and in fact, “almost identical” to the sight lines of a standing spectator in Row 35.384 Here, the
Court finds that the sightlines from the accessible seats in Row 36 are comparable to the sightlines
from nonaccessible seats and that, therefore, Superdome complies with Section 4.33.3 of the 1991
ADAAG in this regard.
Additionally, in Accessible Stadiums, the DOJ defined a “comparable line of sight” to allow
for a person using a wheelchair to see the playing surface between the heads and over the shoulders
of the person standing in the row immediately in front and over the heads of the persons standing
two rows in front.385 Mr. Terry testified that both wheelchair users in Row 36 and standing

Trial Transcript, March 2, 2020, James Terry, p. 247–50; Rec. Doc. 179-14 at 2. Plaintiff’s Exhibit 14
shows that comparable standing can see 98% of the field. See id. Mr. Terry testified that this number was in error, and
the correct figure is 91%. See Trial Transcript, March 2, 2020, James Terry, p. 229.
381

Trial Transcript, March 2, 2020, James Terry, p. 248 (“It also shows the shoulders, but the shoulders don't
block -- the shoulders don't block the -- any of the field, so that's what the black line is below there.”); Trial Transcript,
March 3, 2020, James Terry, pp. 331–32 (“this is the lines of sight in Section 114, and you did above the heads and
then above the shoulders for both the wheelchair user and the comparable standing spectators. Both of them can see
the entire field above the shoulders of the row in front of them, correct? A. That's correct.”).
382

383

Trial Transcript, March 3, 2020, Mark Mazz, p. 407.

384

Trial Transcript, March 3, 2020, Mark Mazz, p. 369.

385

Department of Justice, Accessible Stadiums 2 (1996), https://www.ada.gov/stadium.pdf.

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spectators in Row 35, can see the entire playing field over the shoulders and between the heads of
persons standing one row in front of them (Row 35 and Row 34, respectively). 386 Mr. Mazz
concluded that the sight lines for a wheelchair user in Row 36 was comparable, and in fact, “almost
identical” to the sight lines of a standing spectator in Row 35.387 Accordingly, both experts agree
that the sightlines to the playing field from Row 36 comply with the standard set by the Accessible
Stadiums guideline. Accordingly, the Court concludes that the sightlines from the accessible seats
in Row 36 are comparable to the sightlines from nonaccessible seats and that, therefore,
Superdome complies with Section 4.33.3 of the 1991 ADAAG in this regard.
Even if the Court were to find that the Superdome did not comply with Section 4.33.3 of
the 1991 ADAAG, the 2010 ADAAG would apply in making the Superdome accessible.388
Therefore, while the sightlines in the Superdome must offer comparable lines of sight to accessible
and nonaccessible seats, consistent with the mandate in Section 4.33.3 of the 1991 ADAAG, the
Court will utilize the 2010 standards as a barometer.
Section 802.2.2 of the 2010 ADAAG addresses lines of sight over standing spectators.389
Section 802.2.2 provides “[w]here standing spectators are provided lines of sight over the
shoulders and between the heads of spectators standing in the first row in front of their seats,
spectators seated in wheelchair spaces shall be afforded lines of sight over the shoulders and

386

Trial Transcript, March 2, 2020, James Terry, p. 228; Trial Transcript, March 3, 2020, James Terry, pp.

387

Trial Transcript, March 3, 2020, Mark Mazz, p. 349.

311–12.

28 C.F.R. § 36.406(a)(5)(ii) (“Newly constructed or altered facilities or elements covered by §§ 36.401 or
36.402 that were constructed or altered before March 15, 2012 and that do not comply with the 1991 Standards shall,
on or after March 15, 2012, be made accessible in accordance with the 2010 Standards.”).
388

389

2010 ADAAG at § 802.2.2.2.

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between the heads of standing spectators in the first row in front of wheelchair spaces.” 390 Mr.
Terry testified that both wheelchair users in Row 36 and standing spectators in Row 35, can see
the entire playing field over the shoulders and between the heads of persons standing one row in
front of them (Row 35 and Row 34, respectively).391 Mr. Mazz concluded that the sight lines for a
wheelchair user in Row 36 was comparable, and in fact, “almost identical” to the sight lines of a
standing spectator in Row 35.392 Accordingly, both experts agree that the line of sight from Row
36 of the 100 Level of the Superdome complies with Section 802.2.2 of the 2010 ADAAG.
Accordingly, the Court concludes that spectators seated in wheelchair spaces in Row 36 are
afforded lines of sight over the shoulders and between the heads of standing spectators in the first
row in front of wheelchair spaces and that, therefore, Superdome complies with Section 802.2.2
of the 2010 ADAAG in this regard.
Thus, after determining the applicable standards and interpretations, and reviewing the
evidence presented at trial, the Court finds that the sightlines to the playing field from the
accessible seats in Row 36 of the 100 Level are comparable to the sightlines from nonaccessible
seats and, therefore, the Superdome complies with both the 1991 ADAAG and 2010 ADAAG in
this regard.
b.

Aerial play and the Jumbotron

Next, the Court addresses the sightlines to the Jumbotron and aerial play from the
accessible seats in Row 36 of the 100 Level. There is no dispute that patrons can see the Jumbotron
and aerial play from Row 1. Therefore, this analysis is limited to Row 36.

390

Id.

391

Trial Transcript, March 2, 2020, James Terry, p. 228; Trial Transcript, March 3, 2020, James Terry, pp.

392

Trial Transcript, March 3, 2020, Mark Mazz, p. 349.

311–12.

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A.

The Jumbotron

Plaintiff testified that from his seat in Row 36, he could not see the field, aerial gameplay,
including long passes or punts, or the “big scoreboards.”393 Alan Freeman, testified that the
concrete overhang obstructs the view of the aerial plays and the Jumbotron for wheelchair users in
Row 36 and able-bodied patrons in Row 35.394
The Court finds that Section 4.33.3 of the 1991 ADAAG, does not apply to scoreboards
such as the Jumbotron. In the context of alterations to assembly areas, such as the Superdome, the
regulations refer specially to a movie screen, not all screens generally.395 While the 1991 ADAAG,
the TAM, and the 1994 Supplement are silent as to the main focal point of the applicable line of
sight, Accessible Stadiums explicitly provides that “[a] comparable line of sight . . . allows a person
using a wheelchair to see the playing surface . . . .”396 Accordingly, the regulations and DOJ
guidance suggest that the pertinent line of sight is to the main focal point of the assembly, here the
playing field.
Even if the Court were to find that Section 4.33.3 of the 1991 ADAAG applied to the
Jumbotron, Section 4.33.3 requires only a comparable sightline. Similar or identical information
to that displayed on the Jumbotron is also provided on auxiliary monitors located throughout the
Superdome, albeit on smaller screens.397 Additionally, the comparability standard of Section
4.33.3 requires that a stadium provide sightlines to people with physical disabilities that are

393

Trial Transcript, March 2, 2020, Shelby Bailey, p. 192.

394

Trial Transcript, March 2, 2020, Alan Freeman, p. 172.

395

See 28 C.F.R. § 36.406(f).

396

Department of Justice, Accessible Stadiums 2 (1996), https://www.ada.gov/stadium.pdf. (emphasis

added).
397

Trial Transcript, March 3, 2020, James Terry, p. 309.

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similarly unobstructed to the sightlines provided to the general public. As Alan Freeman testified,
many patrons sitting in nonaccessible seats in the 100 Level are similarly unable to see the
Jumbotron.398 In fact, the last eight rows of patrons are unable to view the Jumbotron due to the
concrete overhang.399
Accordingly, Plaintiff has not shown that Defendants violated the sightline requirement as
it relates to the Jumbotron.
B.

Aerial play

Next, the Court addresses the sightlines from Row 36 to the aerial play. As a preliminary
matter, SMG argues that Section 4.33.3 does not apply to aerial play.400 However, the Court finds
this argument unavailing. As discussed above, the regulations and DOJ guidance suggest that the
pertinent line of sight is to the main focal point of the assembly, here the playing field. The Court
interprets “playing field” to refer not to the physical field upon which the game is being played,
but to the actual game which is being played on the field. In other words, the regulations are
designed to ensure that disabled individuals have comparable sightlines to the main focal point of
the assembly area. Nobody buys tickets to a football game to simply observe the physical field
itself; they go to watch the game of football. And the game of football involves an aerial
component, in which the ball travels high into the air on long passes and punts. Accordingly, the
Court finds that Defendants must be provide comparable lines of sight to aerial plays.
Plaintiff testified that from his seat in Row 36, he could not see the field, aerial gameplay,

398

Trial Transcript, March 2, 2020, Alan Freeman, pp. 148, 170 –71.

399

Trial Transcript, March 2, 2020, Alan Freeman, pp. 148, 170 –71.

400

Rec. Doc. 174 at 71.

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including long passes or punts, or the “big scoreboards.”401 Mr. Terry testified that a spectator in
Row 36 can only see the early part of the flight of a punt, kick and long pass.402 Mr. Mazz testified
that to view aerial play, a patron must be able to see approximately 150 feet above the center of
the field.403 Alan Freeman, testified that the concrete overhang obstructs the view of the aerial
plays for wheelchair users in Row 36.404 However, Alan Freeman also testified that patrons in the
first several rows of nonaccesible seating in front of Row 36 encounter the same sightline barriers
to aerial play.405 Both Mr. Mazz and Mr. Terry agreed that all patrons in the last three to four rows
of the 100 Level cannot see aerial gameplay due to the concrete overhang.406
Here, the Court finds that the lines of sight to aerial play from the Row 36 accessible seating
provide wheel chair users lines of sight comparable to those for members of the general public.
The Court notes that because the obstruction is not standing spectators, but the concrete overhang,
the 1994 Supplement and Accessible Stadiums are of limited usefulness in analyzing the sightline
requirements to aerial play.407
As discussed above, the Fifth Circuit interpreted the phrase “lines of sight” to refer to

401

Trial Transcript, March 2, 2020, Shelby Bailey, p. 192.

402

Trial Transcript, March 2, 2020, James Terry, p. 239.

403

Trial Transcript, March 3, 2020, Mark Mazz, pp. 392–93.

404

Trial Transcript, March 2, 2020, Alan Freeman, p. 172.

405

Trial Transcript, March 2, 2020, Alan Freeman, p. 171; Trial Transcript, March 2, 2020, Alan Freeman,

p. 148.
406

Trial Transcript, March 3, 2020, James Terry, p. 291 (opining that a wheelchair user would need to move
to Row 32 to see “everything”); Trial Transcript, March 3, 2020, Mark Mazz, pp. 393–94 (opining that “if you move
forward three rows and you were -- and once you move forward three rows, you can actually drop the elevation of the
wheelchair. seats down to 21 inches and at that point, you can see up to a vertical view up to 170 feet. So you can see
the highest of the high punts. You'll be able to see the aerial play.”).
407

In the 1994 Supplement, the DOJ interpreted Section 4.33.3 to require wheelchair users have lines of sight
over spectators who stand. In Accessible Stadiums, the DOJ defined a “comparable line of sight” to allow for a person
using a wheelchair to see the playing surface between the heads and over the shoulders of the person standing in the
row immediately in front and over the heads of the persons standing two rows in front.

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“unobstructed views.”408 Accordingly, Section 4.33.3 requires that a facility must provide
sightlines to people with physical disabilities that are similarly unobstructed to the sightlines
provided to the general public. Here, the accessible seating in Row 36 has the same obstruction,
the concreate overhang, to aerial play as the next several rows on nonaccesible seating in the 100
Level.409 Accordingly, the Court concludes that the sightlines from accessible seats to aerial play
are comparable to the sightlines from nonaccessible seats and that, therefore, the Superdome
complies with Section 4.33.3 of the 1991 ADAAG in this regard.
ii.

Whether there is a sightline obstruction at Level 100, Row 1

The Row 1 seating for wheelchair users is located on a “step-down” in that the deck is a
few inches lower to the ground than the front seating for able-bodied patrons.410 Plaintiff testified
that he sat in Row 1 during a Saints game, but because the seats were directly behind the players,
and because he could not see over the players, he could not see the field.411 Plaintiff’s brother,
Thomas Russell Bailey, who sat with Plaintiff during Saints games, testified that the Row 1 seats
were not very good because the field was not visible due to the players standing on the sideline.412
Plaintiff’s expert, Mr. Terry, testified that the Row 1 seating contains sightline issues
because football players standing on the field block the view of the field.413 Specifically, Mr. Terry
testified that wheelchair users on the lowered platforms on Row 1 could see none of the field over

408

Lara, 207 F.3d at 788–89.

409

Trial Transcript, March 2, 2020, Alan Freeman, p. 171; Trial Transcript, March 2, 2020, Alan Freeman,

410

Trial Transcript, March 2, 2020, Alan Freeman, p. 145.

411

Trial Transcript, March 2, 2020, Shelby Bailey, pp. 203, 215.

412

Trial Transcript, March 2, 2020, Thomas Russell Bailey, p. 202.

413

Trial Transcript, March 2, 2020, James Terry, pp. 233–35.

p. 148.

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the tops of the heads of average height people standing on the sidelines while comparable nondisabled standing spectators could see 69% of the field over the heads of people in the front row.414
Mr. Terry used a standing spectator in Row 4 as the comparable spectator, which is the row
immediately behind wheelchair users.415 Mr. Terry testified that wheelchair users in Row 1 can
see 57% of the field and standing spectators in Row 4 can see 80% of the field over the shoulders
and between the heads of players standing on the sidelines.416 Based on this, Mr. Terry concluded
that wheelchair users in Row 1 do not have comparable lines of sight to those provided for the
spectators sitting immediately behind them.417
Defendants’ expert, Mr. Mazz, agreed that all Row 1 seats along the sidelines are going to
have “100 percent” obstructed views due to the players standing in front of those seats.418
However, Mr. Mazz opined that while Row 1 seats do not offer views of the field, they do offer
other amenities that patrons may be purchasing those tickets for (for example, being able to interact
with the players before the game).419 Mr. Mazz also testified that while wheelchair users in the
front row can see none of the field over the heads of the players in front of them, patrons in Row
15 can only see 31% of the field.420 Mr. Mazz opined that patrons can only expect to see the entire

414

Trial Transcript, March 2, 2020, James Terry, p. 235.

415

Trial Transcript, March 3, 2020, James Terry, pp. 339–40.

416

Trial Transcript, March 2, 2020, James Terry, p. 235; Rec. Doc. 179-14 at 1.

417

Trial Transcript, March 2, 2020, James Terry, p. 236.

Trial Transcript, March 3, 2020, Mark Mazz, p. 381 (“There are no good seats on the sidelines in the front
row. You're going to be blocked wherever you are. If you're in a wheelchair, you're going to be blocked 100 percent
by the players in front of you.”); id. at 373 (“the persons in wheelchairs see absolutely none of the field when trying
to see over the heads of the players in front of them.).
418

Trial Transcript, March 3, 2020, Mark Mazz, p. 381 (“They can't but they can say hi to players. There's
interaction between people in the sidelines either before the game or what's going on. There are other reasons people
want to sit in the front row. It's not going to be a good seat to see. It just won't be.”).
419

Trial Transcript, March 3, 2020, Mark Mazz, p. 393 (“[T]he persons in wheelchairs see absolutely none
of the field when trying to see over the heads of the players in front of them. The persons in Row 15, front row, which
420

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field around Row 18.421
Based on the evidence presented at trial, Defendants are in violation of Section 4.33.3 of
the 1991 ADAAG, which requires “people with physical disabilities [be provided] a choice of
admission prices and lines of sight comparable to those for members of the general public.”422
Preliminarily, the Court notes that the 1994 Supplement, the Accessible Stadiums guidelines and
the 2010 ADAAG are inapplicable to the sightline analysis at Row 1, because those standards
concern standing spectators in front of accessible seating, and of course in the front row, there are
no spectators in front of the accessible seating.423 Mr. Terry testified that wheelchair users on the
lowered platforms on Row 1 could see none of the field over the tops of the heads of average
height people standing on the sidelines while comparable non-disabled standing spectators could
see 69% of the field over the heads of people in the front row.424 Mr. Terry testified that wheelchair
users in Row 1 can see 57% of the field and standing spectators in Row 4 can see 80% of the field
over the shoulders and between the heads of players standing on the sidelines.425 Mr. Mazz also

I thought was the closest comparable to that area, can only see 31 percent of the field over the heads of the football
players. It's -- you're not going to be sitting there in that front row to see the game. There's just too much of the field
blocked. You've got the go back up to almost Row 18 before you can see the entire field.”).
421

Trial Transcript, March 3, 2020, Mark Mazz, p. 393.

422

1991 ADAAG at § 4.33.3.

423

In the 1994 Supplement, the DOJ interpreted Section 4.33.3 to require wheelchair users lines of sight over
spectators who stand. See Title III Technical Assistance Manual 1994 Supplement (1994),
https://www.ada.gov/taman3up.html. Because there are no spectators in front of wheelchair users in Row 1, it is
inapplicable to the present inquiry. Similarly, in Accessible Stadiums, the DOJ defined a “comparable line of sight” to
allow for a person using a wheelchair to see the playing surface between the heads and over the shoulders of the person
standing in the row immediately in front and over the heads of the persons standing two rows in front. Department of
Justice, Accessible Stadiums 2 (1996), https://www.ada.gov/stadium.pdf. While “persons” is more general than
“spectators” and could be read to include players and coached, the explicit reference to rows implies that “persons”
refers to other spectators sitting or standing in rows in the facility. Accordingly, both the 1994 Supplement and
Accessible Stadiums, do not offer additional guidance to the proper interpretation of “comparable line of sight” as it
relates to Row 1.
424

Trial Transcript, March 2, 2020, James Terry, p. 235.

425

Trial Transcript, March 2, 2020, James Terry, p. 235; Rec. Doc. 179-14 at 1.

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testified that while wheelchair users in the front row can see none of the field over the heads of the
players in front of them, patrons in Row 15 can only see 31% of the field.426
As discussed above, the Fifth Circuit interpreted the phrase “lines of sight” to refer to
“unobstructed views.”427 Accordingly, Section 4.33.3 requires that a facility must provide
sightlines to people with physical disabilities that are similarly unobstructed to the sightlines
provided to the general public. As Mr. Terry’s measurements show, this is not the case at Row 1
of the Superdome. Accordingly, the Court finds that the sightlines for people with physical
disabilities are not comparable to the sightlines of the general public and therefore, the Superdome
is in violation of Section 4.33.3 of the 1991 ADAAG. However, as explained below, it would be
virtually impossible to make the 100 Level accessible. Therefore, the Court finds that the 100
Level provides the maximum extent of accessibility that is feasible given the structural limitations
of the facility.
iii.

Whether Defendants violated the horizontal and vertical dispersion
requirements of the ADA

Preliminarily, the Court notes that Plaintiff does not appear to be pursuing a claim with
respect to the number of accessible seats in the 100 Level; rather Plaintiff appears to be arguing
that the total number of wheelchair accessible seats in the Superdome as a whole falls short of the
regulatory requirement.428 However, the number of accessible seats impacts the dispersion
requirements discussed below. Accordingly, the Court addresses the requirements for number of

Trial Transcript, March 3, 2020, Mark Mazz, p. 393 (“the persons in wheelchairs see absolutely none of
the field when trying to see over the heads of the players in front of them. The persons in Row 15, front row, which I
thought was the closest comparable to that area, can only see 31 percent of the field over the heads of the football
players. It's -- you're not going to be sitting there in that front row to see the game. There's just too much of the field
blocked. You've got the go back up to almost Row 18 before you can see the entire field.”).
426

427

Lara, 207 F.3d at 788–89.

428

Rec. Doc. 172 at 20–22 (addressing “Overall Seat Count” and analyzing the Superdome as a whole).

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seats.
The Court notes that “assembly area” is defined as “[a] building or facility, or portion
thereof, used for the purpose of entertainment, educational or civic gatherings, or similar purposes.
For the purposes of these requirements, assembly areas include, but are not limited to, classrooms,
lecture halls, courtrooms, public meeting rooms, public hearing rooms, legislative chambers,
motion picture houses, auditoria, theaters, playhouses, dinner theaters, concert halls, centers for
the performing arts, amphitheaters, arenas, stadiums, grandstands, or convention centers.”429 Here,
the Court focuses on just the 100 Level, the portion of the facility subject to the alteration
requirement. At the 100 Level, there are presently 25,460 seats.430 Presently, there is a total of 236
wheelchair accessible seats in the 100 Level.431
Section 4.1.3(19) of the 1991 ADAAG provides that in places of assembly with fixed
seating accessible wheelchair locations if the capacity of seating in the assembly area is over 500
6 wheelchair locations, plus 1 additional space for each total seating capacity increase of 100, are
required.432 Section 221.2.1.1 of the 2010 ADAAG provides that if there is more than 5001 seats
in an assembly area, 36 wheelchair spaces, plus 1 for each 200, or fraction thereof, over 5000, is
required.433
Here, the number of accessible seats in the 100 Level satisfies the requirements of Section

429

2010 ADAAG at § 106.5 (emphasis added).

430

Parties did not contest this fact. Rec. Doc. 163 at 5.

431

Parties did not contest this fact. Id.

432
1991 ADAAG at § 4.1.3(19) (“In places of assembly with fixed seating accessible wheelchair locations
shall comply with 4.33.2, 4.33.3, and 4.33.4 and shall be provided consistent with the following table: Capacity of
Seating in Assembly Areas . . . over 500[,] . . . Number of Required Wheelchair Locations . . . 6, plus 1 additional
space for each total seating capacity increase of 100.”).
433

2010 ADAAG at § 221.2.1.1.

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221.2.1 of the 2010 ADAAG. As with sightlines, the Court finds that the 1991 ADAAG, and
specifically Section 4.33.3 applies. However, to calculate the total required number of wheelchair
accessible seats, and the distribution of those seats, the Court will utilize Section 221.1 of the 2010
ADAAG because if the Court finds that the Superdome does not comply with 1991 ADAAG
dispersion requirements, the 2010 ADAAG requirement would now apply.434 When the number
of wheelchair spaces in an assembly area exceeds 5001, Section 221.2.1 of the 2010 ADAAG
requires 36 wheelchair spaces plus 1 for each 200 over 5000.435 Here, the 100 Level has 25,460
seats, but only 17,118 seats were altered as part of the 2010 Renovations. 436 Accordingly, 139
wheelchair spaces are required.437 The 100 Level presently has 236 wheelchair spaces.438
Accordingly, the 236 accessible seats resulting from 2010 Renovations comply in number with the
applicable ADAAG standards for alterations. Therefore, the Court turns to the issue of whether
Defendants violated the horizontal and vertical dispersion requirements of the ADA.
Section 4.33.3 of the 1991 ADAAG sets forth the following with respect to horizontal and
vertical dispersion:
Placement of Wheelchair Locations. Wheelchair areas shall be an integral part of
any fixed seating plan and shall be provided so as to provide people with physical
disabilities a choice of admission prices and lines of sight comparable to those for
members of the general public. They shall adjoin an accessible route that also serves
Landis, 2019 WL 7157165 at *18 (internal citations omitted) (“In calculating the total required number
of accessible seats, and the proportional distribution of those seats, the Court will utilize Section 221.1 of the 2010
ADAAG’s calculations . . . The Court utilizes the more recent calculations set forth in Section 221.1 of the 2010
ADAAG because even were T-Mobile Park not to comply with the 1991 ADAAG’s requirement, the 2010 ADAAG’s
requirement would now apply. Thus, while in order to comply with the ADA’s requirements accessible seating in TMobile Park must be distributed according to Section 4.33.3’s mandate, the Court will utilize the current 2010
standards as a yardstick for the proper proportional representation that should be present in the stadium between
accessible and nonaccessible seats.”).
434

435

2010 ADAAG at § 221.2.1.

436

Parties did not contest this fact. Rec. Doc. 163 at 5.

437
438

25,460 – 5000 = 20,460. 20,460 / 200 = 102.3. 102.3 + 36 = 138.3.
Parties did not contest this fact. Rec. Doc. 163 at 5.

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as a means of egress in case of emergency. At least one companion fixed seat shall
be provided next to each wheelchair seating area. When the seating capacity
exceeds 300, wheelchair spaces shall be provided in more than one location.
Readily removable seats may be installed in wheelchair spaces when the spaces are
not required to accommodate wheelchair users.
EXCEPTION: Accessible viewing positions may be clustered for bleachers,
balconies, and other areas having sight lines that require slopes of greater than 5
percent. Equivalent accessible viewing positions may be located on levels having
accessible egress.439
This Court interprets Section 4.33.3 to have twin requirements: (1) accessible seating must
be integral to a stadium’s seating plan, meaning that accessible seating is not entirely placed in one
location and (2) people with physical disabilities must be given a choice of seating locations (i.e.
horizontal and vertical distribution).440 However, the distribution requirement is qualified by two
exceptions. First, accessible seats “shall adjoin an accessible route that also serves as a means of
egress in case of emergency.”441 Second, seating “may be clustered for bleachers, balconies, and
other areas having sight lines that require slopes of greater than 5 percent.”442 “The 5 percent slope
exemption . . . permits only the clustering of seats.”443 This exemption has no impact on Section
4.33.3’s requirement to offer comparable lines of sight.444
The 2010 ADAAG has updated requirements for the horizontal dispersion of accessible

439

1991 ADAAG at § 4.33.3.

Landis, 2019 WL 7157165 at *18 (internal citations omitted) (“Section 4.33.3 requires a vertical
distribution that is ‘integral’ to the stadiums seating plan in a manner comparable to the general public. Specifically,
Section 4.33.3’s command is that ‘[w]heelchair areas shall be an integral part of any fixed seating plan and shall be
provided so as to provide people with physical disabilities a choice of ... lines of sight comparable to those for members
of the general public.’ Thus, the requirement is for (1) integration within the seating plan (i.e. no placing all accessible
seating in one location) and (2) comparable lines of sight (which here is also interpreted as horizontal and vertical
distribution) that provide a choice of seating locations.”).
440

441

1991 ADAAG at § 4.33.3.

442

Id.

443

Lara, 207 F.3d at 789 n.5.

444

Id.

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seats445 as well as the vertical dispersion of accessible seats.446 Specifically, Section 221.2.3 of the
2010 ADAAG provides:
Wheelchair spaces shall provide lines of sight complying with 802.2 and shall
comply with 221.2.3. In providing lines of sight, wheelchair spaces shall be
dispersed. Wheelchair spaces shall provide spectators with choices of seating
locations and viewing angles that are substantially equivalent to, or better than, the
choices of seating locations and viewing angles available to all other spectators.
When the number of wheelchair spaces required by 221.2.1 has been met, further
dispersion shall not be required.
EXCEPTION: Wheelchair spaces in team or player seating areas serving areas of
sport activity shall not be required to comply with 221.2.3.447
Section 221.2.3.1 of the 2010 ADAAG provides that “[w]heelchair spaces shall be
dispersed horizontally.”448 Horizontal dispersion of wheelchair spaces refers to the placement of
spaces around the field of play.449 An exception is provided for “row seating, [in which] two
wheelchair spaces shall be permitted to be located side-by-side.”450
Section 221.2.3.2 of the 2010 ADAAG provides that “[w]heelchair spaces shall be
dispersed vertically at varying distances from the screen, performance area, or playing field. In

2010 ADAAG at § 221.2.3.1 (“Wheelchair spaces shall be dispersed horizontally.”). see also id.
(“Horizontal dispersion of wheelchair spaces is the placement of spaces in an assembly facility seating area from sideto-side or, in the case of an arena or stadium, around the field of play or performance area.”).
445

Id. at § 221.2.3.2 (“Wheelchair spaces shall be dispersed vertically at varying distances from the screen,
performance area, or playing field. In addition, wheelchair spaces shall be located in each balcony or mezzanine that
is located on an accessible route.”). see also id. (“When wheelchair spaces are dispersed vertically in an assembly
facility they are placed at different locations within the seating area from front-to-back so that the distance from the
screen, stage, playing field, area of sports activity, or other focal point is varied among wheelchair spaces.”). The 2010
ADAAG’s vertical dispersion requirement includes an exception, which states that wheel chairs spaces are not
required “in rows other than rows at points of entry to bleacher seating.” 2010 ADAAG at § 221.2.3.2 (“Points of
entry to bleacher seating may include, but are not limited to, cross aisles, concourses, vomitories, and entrance ramps
and stairs. Vertical, center, or side aisles adjoining bleacher seating that are stepped or tiered are not considered entry
points.”).
446

447

Id. at § 221.2.3.

448

Id.

449

Id.

450

Id.

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addition, wheelchair spaces shall be located in each balcony or mezzanine that is located on an
accessible route.”451 The Advisory Comments state that “[w]hen wheelchair spaces are dispersed
vertically in an assembly facility they are placed at different locations within the seating area from
front-to-back so that the distance from the screen, stage, playing field, area of sports activity, or
other focal point is varied among wheelchair spaces.”452 An exception to this provision provides
“[i]n bleachers, wheelchair spaces shall not be required to be provided other than rows at points of
entry to bleacher seating.”453
The caselaw on the distribution requirements is “sparse” as “[m]ost courts that have opined
on the subject have merely held that there is a vertical distribution requirement.”454 However,
courts that have considered these issues have generally “tempered the vertical distribution
requirement by recognizing the practical limitations associated with accessible seating.”455 This is
perhaps “[b]ecause wheelchair patrons make up only a small percentage of all spectators, there
need not be wheelchair seating in every section of the arena, but there must be spaces scattered
throughout a sufficiently representative number of sections in the seating bowl to provide

451

Id. at § 221.2.3.2.

452

Id.

453

Id.

454

Landis, 2019 WL 7157165 at * 18 (citing Paralyzed Veterans of Am. v. Ellerbe Becket Architects &
Eng'rs, P.C., 950 F.Supp. 393, 404 (D.D.C. 1996) (“[d]ispersal requires a choice of various seating areas, good and
bad, expensive and inexpensive, which generally matches those of ambulatory spectators”); Indep. Living Res. v.
Oregon Arena Corp., 982 F.Supp. 698, 708, 709 (D. Or. 1997) (“DOJ interprets Standard 4.33.3 to require both
vertical and horizontal dispersal, i.e., in large arenas and stadiums such as the Rose Garden the wheelchair locations
must be distributed in a manner that approximates the overall distribution of seats in the facility”); Berry v. City of
Lowell, No. 01-10694, 2003 WL 22050772, at *2 (D. Mass. May 30, 2003); Colorado Cross-Disability Coal. v.
Colorado Rockies Baseball Club, Ltd., 336 F.Supp. 2d 1141, 1146 (D. Colo. 2004); Cerda v. Chicago Cubs Baseball
Club, LLC, No. 17-9023, 2019 WL 4138943, at *8–9 (N.D. Ill. Aug. 30, 2019)).
455

Id. at * 19.

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comparable choices.”456 In Paralyzed Veterans of America v. Ellerbe Becket Architects & Eng'rs,
P.C., the court found that a newly built arena did not comply with Section 4.33.3 of the 1991
ADAAG because “almost every one” of the accessible seats were located in the end zone areas.457
In Colorado Cross-Disability Coal. v. Colorado Rockies Baseball Club, Ltd., the court determined
that the wheelchair seats could not be clustered in specific areas of the stadium.458
The 2010 ADAAG provides that “[w]hen the number of wheelchair spaces required by
221.2.1 has been met, further dispersion shall not be required.”459 As discussed above, the number
of accessible seats in the 100 Level satisfies the requirements of Section 221.2.1 of the 2010
ADAAG. Because “the number of wheelchair spaces required by 221.2.1 has been met, further
dispersion [is] not . . . required.”460 However, even if further dispersion had been required, the
Court finds that the 100 Level of the Superdome satisfies the dispersion requirements.
The evidence shows that there is horizontal dispersion of ADA seating in the 100 Level of
the Superdome. Horizontal dispersion of wheelchair spaces refers to the placement of spaces

456
Paralyzed Veterans of Am., 950 F.Supp. at 404; see also Indep. Living Res., 982 F.Supp. at 709 (“[w]hile
absolute homogeneity is usually neither feasible nor required—since wheelchair users cannot navigate stairways or
the narrow passage leading to a seat in the middle of a row—neither may the arena operator relegate most wheelchair
users to the dark corners of the arena”); Cerda, 2019 WL 4138943, at *9 (“the 2010 Standards do not say where
Accessible Seats must be located and do not require the Cubs to place ADA seats in the front row”).
457
950 F.Supp. 393, 404 (D.D.C. 1996) (interpreting the dispersal requirement of Section 4.33.3 of the 1991
ADAAG as requiring “a choice of various seating areas, good and bad, expensive and inexpensive, which generally
matches those of ambulatory spectators. Furthermore, in order to comply with the other requirements of § 4.33.3,
spaces with enhanced sightlines must be dispersed; a design which segregates the spaces with enhanced sightlines
cannot comply, no matter how dispersed the spaces with unenhanced sightlines may be. Because an ambulatory patron
may select a seat with an unobstructed view in any section of the arena, it is not “comparable” to force a wheelchair
patron to choose between a good view and a good location. Because wheelchair patrons make up only a small
percentage of all spectators, there need not be wheelchair seating in every section of the arena, but there must be
spaces scattered throughout a sufficiently representative number of sections in the seating bowl to provide comparable
choices.”).
458

336 F.Supp. 2d 1141 (D. Col. 2004).

459

2010 ADAAG at § 221.2.3.

460

Id.

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around the field of play.461 The Advisory Comments to Section 221.2.3.1 of the 2010 ADAAG
provides that accessible seats must be placed “around the field of play.”462 The Row 36 accessible
seating wraps around the length of the sideline, thereby encircling, in part, the field of play.463
While there are no accessible seats in the endzones,464 the Court finds that providing accessible
seating along the entire length of the sideline is sufficient to satisfy the horizontal dispersion
requirements. Therefore, the accessible seating in the 100 Level complies with the horizontal
dispersion requirements.
The evidence also shows that there is vertictal dispersion of ADA seating in the 100 Level
of the Superdome. Generally, the 1991 ADAAG requires a vertical distribution that is “integral”
to the stadium’s seating plan.465 “A stadium, therefore, could not fulfill Section 4.33.3’s mandate
by merely apportioning an equal amount of accessible seating within each of the stadium’s vertical
tiers but then relegating those seats entirely to the rear of each of the tiers. For instance, because
ambulatory patrons have the option to access front row seating, stadiums, at the very least, must
also provide accessible front row seating for wheelchair patrons.”466 Here, the Superdome offers
accessible seating in Row 1 and Row 36 of the 100 Level. As such, wheelchair users are not
entirely relegated to one specific spot, but rather have the choice between sitting in the front row,
or the back row. Generally, the 2010 ADAAG provides that wheelchair spaces must be placed at

461

Id.

462

Id. at § 221.2.3.

463

Trial Transcript, March 3, 2020, James Terry, pp. 338–39.

464

Trial Transcript, March 2, 2020, James Terry, p. 258.

465

1991 ADAAG at § 4.33.3.

466

Landis, 2019 WL 7157165 at *19.

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varying distances from the playing field.467 Importantly, the 2010 ADAAG do not require that
wheelchair seating be in any specific location, so long as distance from the seats to the field of
play is varied.468 Here, the Court finds that the 100 Level of the Superdome complies with the
vertical dispersion requirements because there are accessible seats at two distances from the field:
Row 1 and Row 36 of the 100 Level. Therefore, there is vertical dispersion of wheelchair
accessible seating in the 100 Level of the Superdome.
In sum, the Court finds that the 100 Level of the Superdome fulfills the horizontal and
vertical dispersion requirements of the ADAAG.
iv.

Whether the monitors violate the alteration requirement

SMG, on behalf of the Board, placed television monitors on the underside overhang of the
200 Level, for patrons in the 100 Level.469 Mr. Terry testified that because the monitors are small
and too few in number, they do not offer a comparable experience to the Jumbotron.470
Photographs of the monitors were also introduced into evidence.471 Plaintiff testified that he had
difficulty watching the football game on the monitor because they were so small.472
The Court finds that Section 4.33.3 of the 1991 ADAAG, does not apply to the television
monitors at issue. In the context of alterations to assembly areas, such as the Superdome, the
regulations refer to a movie screen, not all screens generally. 473 While the 1991 ADAAG, the

467

2010 ADAAG at § 221.2.3.2.

Cerda, 2019 WL 4138943, at *9 (“the 2010 Standards do not say where Accessible Seats must be located
and do not require the Cubs to place ADA seats in the front row”).
468

469

Trial Transcript, March 2, 2020, Doug Thornton, pp. 137–38.

470

Trial Transcript, March 3, 2020, James Terry, pp. 240–41.

471

Rec. Docs. 179-13, 180-26.

472

Trial Transcript, March 2, 2020, Shelby Bailey, p. 212.

473

See 28 C.F.R. § 36.406(f).

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TAM, and the 1994 Supplement are silent as to the main focal point of the applicable line of sight,
Accessible Stadiums explicitly provides that “[a] comparable line of sight . . . allows a person using
a wheelchair to see the playing surface . . . .”474 Accordingly, the regulations and DOJ guidance
suggest that the pertinent line of sight is to the main focal point of the assembly, here the playing
field.
Even if the Court were to find that Section 4.33.3 of the 1991 ADAAG applied to the
monitors, Section 4.33.3 requires only a comparable sightline. The comparability standard of
Section 4.33.3 requires that a stadium provide sightlines to people with physical disabilities that
are similarly unobstructed to the sightlines provided to the general public. Unlike Plaintiff’s other
sightline claims, there is no suggestion that standing spectators obstruct wheelchair users’ view of
the monitors. Furthermore, there is no suggestion that people with physical disabilities have any
worse sightlines to the monitors than the sightlines offered to members of the general public. In
fact, Plaintiff’s expert readily agreed that there is no difference between a wheelchair users’ ability
to read the information on a monitor and the ability of a member of the general public sitting in
the same area to read the same monitor.475 Accordingly, the Court finds that the monitors offer the
same viewing experience to all patrons and that therefore, Plaintiff has not shown that Defendants
violated the sightline requirements of the ADA as it relates to the monitors.
5.

Whether it would be virtually impossible to make the 100 Level accessible

As discussed above, Defendants were required to make any alterations “readily accessible”

474

Department of Justice, Accessible Stadiums 2 (1996), https://www.ada.gov/stadium.pdf. (emphasis

added).
475

Trial Transcript, March 3, 2020, James Terry, p. 310.

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to individuals with disabilities to the “maximum extent feasible.”476 Under this standard, the
altered portion of the facility must comply fully with applicable accessibility standards and the
ADAAG unless it is “virtually impossible” to do so.477 If compliance is virtually impossible, “the
alteration shall provide the maximum physical accessibility feasible.”478
The phrase ‘to the maximum extent feasible’ . . . applies to the occasional case
where the nature of an existing facility makes it virtually impossible to comply fully
with applicable accessibility standards through a planned alteration. In these
circumstances, the alteration shall provide the maximum physical accessibility
feasible. Any altered features of the facility that can be made accessible shall be
made accessible. If providing accessibility in conformance with this section to
individuals with certain disabilities (e.g., those who use wheelchairs) would not be
feasible, the facility shall be made accessible to persons with other types of
disabilities (e.g., those who use crutches, those who have impaired vision or
hearing, or those who have other impairments).479
On the question of what qualifies as “virtually impossible” under the ADA, Fifth Circuit
case law is sparse. Accordingly, the Court has searched more broadly in an attempt to discern
precisely when compliance is virtually impossible.
In Roberts v. Royal Atl. Corp., the Second Circuit held that the requirement to make a
facility accessible to the maximum extent feasible is not a cost benefit analysis in which the Court
weighs the costs, financial or otherwise, of making the facility accessible against the benefits of
such a change.480 Rather, it requires the facility be made accessible except where providing

28 C.F.R. § 36.402(c) (The “maximum extent feasible” standard only applies to “the occasional case
where the nature of an existing facility makes it virtually impossible to comply” with accessibility standards). See also
28 C.F.R. § 35.151(b)(1).
476

477

Id.

478

Id.

479

28 C.F.R. § 36.402(c).

542 F.3d 363, 371 (2d Cir. 2008) (“Section 12183’s “maximum extent feasible” requirement does not ask
the court to make a judgment involving costs and benefits . . . The statute and regulations require that such facilities
be made accessible even if the cost of doing so—financial or otherwise—is high. Indeed, in promulgating the
implementing regulations, the Department explicitly rejected suggestions that cost be considered with respect to this
provision.”).
480

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accessibility would be “virtually impossible” in light of the “nature of an existing facility.” 481
“Only if there is some characteristic of the facility itself that makes accessibility ‘virtually
impossible,’ then, may the provision of access be excused. Even in such cases, accessibility must
be provided for all types of disabilities for which nondiscrimination is possible.”482 Lastly,
“because both the statute and regulations require that the alterations themselves be made to provide
the maximum feasible accessibility, a court’s assessment of feasibility must be made with respect
to the state of the facility before the alterations in question were made, rather than the facility’s
post-alteration state.”483
In de la Rosa v. 597 Broadway Dev. Corp., a magistrate judge for the United States District
Court for Southern District of New York found that a proposal to build a wheelchair accessible
ramp was virtually impossible to achieve.484 The plaintiff, a wheelchair user, alleged that she was
unable to access a building because it did not have a wheelchair ramp.485 Because the court found
that the property underwent an alteration, the defendant was required to ensure access to the
maximum extent feasible. In an apparent response to the plaintiff, the defendant engaged a licensed
architect to design a permanent ramp, which was plaintiff’s preferred accommodation.486
However, the court found that the proposed ramp would cover a manhole cover and it would block
more than half the width of a sidewalk.487 Additionally, avoidance of the manhole cover would

481

28 C.F.R. § 36.402(c).

482

Roberts, 542 F.3d at 372.

483

Id.

484
No. 13CV7999 (LAK) (MHD), 2015 WL 7351540 (S.D.N.Y. Aug. 4, 2015), report and recommendation
adopted in part, No. 13-CV-7999 (LAK), 2015 WL 7308661 (S.D.N.Y. Nov. 19, 2015).
485

Id. at *2.

486

Id. at *3.

487

Id. at *14.

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require the ramp to have a far steeper slope than is permitted by either the ADA or City rules. 488
The Court reasoned that both conditions would almost certainly be found inconsistent with public
health and safety.489 Therefore, the Court held that the “defendant has made an adequate showing
that utilizing the proposed permanent ramp in the face of specific regulatory requirements would
be virtually impossible” and therefore granted summary judgement in favor of the defendant.490
The Court also found that the plaintiff’s proposed ramp design would be virtually impossible
because it did not conform to ADA or municipal requirements, namely, that the ramp would extend
even further across the sidewalk, the design did not include handrails, and had a slope higher than
the maximum slope allowed under the applicable ADAAG.491
The court’s analysis in de la Rosa, demonstrates that “virtually impossible” is not
analogous to technically impossible. Rather, it is more akin to unworkable given the current
condition of the facility. Additionally, if the court finds that a proposed solution or accommodation
would result in a different ADA or municipal violation, that is sufficient to establish virtual
impossibility.
In a similar case, Range v. 230 W. 41st St. LLC, a wheelchair user asserted claims under
Title III of the ADA due to the alleged lack of access to a restaurant.492 The court first reasoned
that reasonable jurors could find that three of the defendants’ modifications qualified as
alterations.493 Nevertheless, the court concluded that the defendants were entitled to summary

488

Id. at *15.

489

Id. at *14.

490

Id. at *16.

491

Id.

492

No. 17 CIV. 149 (LAP), 2020 WL 3034800 (S.D.N.Y. June 5, 2020).

493

Id. at * 4.

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judgment because “[n]o reasonable juror could conclude that the alleged alterations could have
been done in a way that would have facilitated wheelchair access to the Store.” 494 Because “[t]he
inability of wheelchair users to enter the Store derives entirely from the elevation difference
between the Store’s floor and the outside sidewalk [and] has nothing to do with the [the] alleged
alterations to the property . . . those alterations do not give rise to liability here.”495
The Superdome was built in 1975.496 This is, of course, fifteen years before the passage of
the ADA and at a time when accessibility standards were just beginning to be addressed by new
construction.497 None of those early standards addressed lines of sight.498 The Superdome was one
of the first enclosed (i.e. completely indoor) stadiums in the country.499 To build something as
large as the Superdome, and maintain a roof overheard, the design was compacted, meaning that
the seating tiers are stacked on top of each other.500 This compact design and stacked-tier layout
creates sightline problems from various seating locations within the Superdome, most notably with
respect to the last few rows of the 100 Level beneath the concrete overhang that supports the 200
Level.
The Court finds that achieving comparable lines of sight to aerial play from the last several

494

Id. at * 5.

495

Id.

496

Parties did not contest this fact. Rec. Doc. 163 at 4.

497

Trial Transcript, March 3, 2020, Mark Mazz, p. 371.

498

Trial Transcript, March 3, 2020, Mark Mazz, p. 371.

499

Trial Transcript, March 3, 2020, Mark Mazz, p. 373.

Trial Transcript, March 3, 2020, Mark Mazz, p. 373 (“The Superdome, I think, is the second stadium in
the country to be covered, completely indoors for something this massive. And to that end, it's compacted. It's huge,
but it's compacted with the way they stack their tiers in there and put the seats together. So it makes it particularly
difficult to add the accessible wheelchair spaces in place and create the same lines of sight and viewing angles for
persons in wheelchairs.”).
500

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row of the 100 Level would be virtually impossible. To view aerial play, a patron must be able to
see approximately 150 feet above the center of the field.501 Both experts agreed that all patrons in
the last three to four rows of the 100 Level cannot see aerial gameplay due to the concrete
overhang.502 Therefore, the wheelchair accessible seats in Row 36 would need to be moved
forward at least three to four rows for wheelchair users to view aerial gameplay.
Here, the Court finds there is no feasible way to move wheelchair spaces forward closer to
the middle of the 100 Level. Defendants’ expert testified that moving 14 wheelchair accessible
seats forward in the section at the fifty-yard-line—where the overhang is the shallowest, making
it the easiest place to achieve vertical sightlines—would result in a loss of 132 seats in that one
section.503 Mr. Mazz testified that this would result in a loss of close to a half a million dollars in
yearly revenue.504 As the seating moves away from the 50 yard line and closer to the endzone, the
depth of the overhang increases and therefore, so does the number of seats Defendants would need
to eliminate in those sections.505 Defendants’ expert estimated that in the section of the corners of
the Superdome, where the overhang is deepest, 20% of the seats may need to be eliminated in
order to move Row 36 forward to afford wheelchair users sightlines to aerial play.506
Plaintiff also suggested removing Row 35 entirely and “moving” Row 36 forward so that

501

Trial Transcript, March 3, 2020, Mark Mazz, pp. 412–13.

502
Trial Transcript, March 3, 2020, James Terry, p. 311 (opining that a wheelchair user would need to move
to Row 32 to see “everything”); Trial Transcript, March 3, 2020, Mark Mazz, pp. 413–14 (opining that “if you move
forward three rows and you were -- and once you move forward three rows, you can actually drop the elevation of the
wheelchair. seats down to 21 inches and at that point, you can see up to a vertical view up to 170 feet. So you can see
the highest of the high punts. You'll be able to see the aerial play.”).
503

Trial Transcript, March 3, 2020, Mark Mazz, pp. 413–14.

504

Trial Transcript, March 3, 2020, Mark Mazz, p. 415.

505

Trial Transcript, March 3, 2020, Mark Mazz, pp. 414–15.

506

Trial Transcript, March 3, 2020, Mark Mazz, p. 415.

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row is entirely accessible seating. First, as Plaintiff’s expert admitted, this would not fix the
sightline problems as to aerial play.507 Defendants’ expert agreed that moving one row forward
would not result in enough of vertical sightline above the field to view aerial play.508 Accordingly,
the Court finds that it is virtually impossible to provide comparable lines of aerial play to the last
several rows of the 100 Level, and that the Superdome provides the maximum extent of
accessibility that is feasible given the structural limitations of the existing facility.
Furthermore, the Court finds that it is virtually impossible for a Row 1 sideline accessible
seat to have a comparable view of the playing field to the view of standing spectators in the 100
Level. As discussed above, all Row 1 seats, including nonaccessible seats, suffer from sightline
obstructions due to the personnel on the field.509 The Row 1 sideline seats, which is where the
wheelchair accessible seats are currently located, are seated immediately behind the player bench.
Therefore, Plaintiff proposed two possible solutions to the sightline issues: (1) moving the
accessible seats closer to the center of the 100 Level so a patron in a wheelchair is vertically high
enough to see over the player bench and (2) moving the Row 1 seats down closer to the endzone,
between the endzone and the 30-yard line, so that the player bench is not directly in front of the
seats.510
Within the 100 Level, patrons sitting in the center of each section, in and around Row 18,
have the best seating when it comes to sightlines. They are seated far enough from the front row
that they can see over the heads of the players and coaches standing on the field in front of them,

507

Trial Transcript, March 3, 2020, James Terry, p. 264.

508

Trial Transcript, March 3, 2020, Mark Mazz, p. 413.

509

Trial Transcript, March 3, 2020, Mark Mazz, p. 380.

510

Trial Transcript, March 2, 2020, James Terry, pp. 260–65.

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but their aerial view isn’t obstructed by the concrete overhang. 511 For these reasons, Plaintiff
argues the accessible seating should be placed in the center of the stadium section. Unfortunately,
there are several complications that arise from affording wheelchair users seats in the center of a
section.
Mr. Mazz explained the logistics of putting wheelchair seats in the center of a section, and
how that decision impacts the rows around it. A wheelchair user’s eyesight is 47.5 inches off the
ground, whereas a comparable standing spectator’s eyesight is 63.5 inches off the ground. 512 To
make up this 16-inch difference, the accessible seats must be raised in height. But, for every 6
inches the accessible seating is raised, an additional row of seating is blocked.513 So, for example,
raising the height of the accessible seating by 30 inches would block the five rows immediately
behind the accessible seats. Therefore, reserving the center of a section for accessible seats would
monopolize a substantial portion of the 100 Level and significantly decrease the seating capacity.
Additionally, a design team would face significant hurdles in putting accessible seating in
the middle of a section.514 In addition to the standard challenges that come with building accessible
seating on top of existing construction, the design team would need to figure out an ADAcompliant way to get wheelchair patrons to their seats; this may require the use of an elevator or a
steep ramp.515 More importantly, placing wheelchair seats in the center of a section could pose a
threat to the safety of all patrons in the event of an emergency. A judge in the United States District
Court for the District of Columbia was persuaded by a defendant’s argument in support of its

511

Trial Transcript, March 3, 2020, Mark Mazz, pp. 393–97.

512

Trial Transcript, March 3, 2020, Mark Mazz, pp. 395–96.

513

Trial Transcript, March 3, 2020, Mark Mazz, p. 397.

514

Trial Transcript, March 3, 2020, Mark Mazz, p. 405.

515

Trial Transcript, March 3, 2020, Mark Mazz, p. 405.

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choice to retain wheelchair seating in the back of a theater rather than dispersed throughout that
“the presence of a wheelchair and its occupant in the midst of able-bodied patrons in fear for their
own safety could impede a mass exodus of the theater in the case of an emergency.”516
Defendants’ expert, Mr. Mazz testified that it would not be possible to put accessible
seating in Row 18.517 Mr. Mazz stated that, with a tightly designed, existing building, it is difficult
if not impossible to put wheelchair accessible seating in the center of a section when considering
all other factors, including maintaining paths of travel to the seats and creating vertical
dispersion.518 In sum, the Court finds that it would be virtually impossible to locate wheelchair
accessible seating in the center of a section.
Plaintiff’s second solution is to move the Row 1 seats to between the endzone and the 30yard line.519 Plaintiff primarily relies of the testimony of Brad McWhirter, a member of the
architect team involved with current renovations at the Superdome and the 2006 repairs to the
Superdome.520 Mr. McWhirter testified that presently, there is no accessible route to the Row 1
seats between the end zone and the 30-yard line.521 Mr. McWhirter testified that to install an
accessible route to these seats, a T-shaped vomitory would need to be installed to create an egress
to the accessible seats.522 Mr. Mazz confirmed that a new vomitory would be necessary because

516

Fiedler v. Am. Multi-Cinema, Inc., 871 F.Supp. 35, 39 (D.D.C. 1994).

Trial Transcript, March 3, 2020, Mark Mazz, p. 394 (“I thought I just talked about that with trying to enter
a vomitory in the center of the seating area, trying to connect that to an accessible route back to where -- somewhere
between the two levels, creating the vertical circulation, not disrupting all the stuff that goes on below it, the -- it's a
nightmare trying to make all of that work and I'm not sure you can at that point.”).
517

518

Trial Transcript, March 3, 2020, Mark Mazz, p. 394.

519

Rec. Doc. 172 at 25.

520

Trial Transcript, March 3, 2020, Brad McWhirter, p. 457.

521

Trial Transcript, March 3, 2020, Brad McWhirter, p. 458.

522

Trial Transcript, March 3, 2020, Brad McWhirter, pp. 460–61.

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the distance from the existing vomitory to the new Row 1 seats would exceed the maximum
distance allowed by the building code for a path of egress.523 Mr. McWhirter testified that such an
installation would result in a reduction of seats.524 Mr. McWhirter testified that currently, there are
not bathrooms nor concessions to service any such accessible route, so Defendants would either
have to tie the new vomitory to the existing Bunker Club expansion, or create new amenities for
this section.525
The Court finds that this proposal would not necessarily solve the sightline problems at
Row 1. First, the Court notes that Plaintiff’s expert did not analyze the sightlines from the proposed
location between the endzone and 30-yard line.526 Without line of sight measurements from this
alterative location, the Court cannot reliably conclude that moving the Row 1 seats closer to the
endzone would achieve even better sightlines than the sightlines from the current Row 1 location,
let alone result in ADAAG-compliant sightlines.
Second, the Court notes that while the obstructions are of course more notable on the 50yard line, where a patron’s view is blocked by the players and coaching staff standing immediately
in front of him, the sightlines are still not “good” as a spectator in Row 1 moves toward the
endzone.527 When the play is immediately in front of a Row 1 patron sitting closer to the end zone,

523
Trial Transcript, March 3, 2020, Mark Mazz, pp. 375–76 (“The means of egress requirements for the
building code require that you can't have a common path longer than 50 -- that's 75 feet before you split it into two
means of egress. If you -- lengthening the existing route through the existing vomitory, I believe right now, to the
accessible seat farthest from where you can make that decision is 60 feet. You're limited to another 15 feet. So you
can't get to another section. You would have to provide another way out.”).
524

Trial Transcript, March 3, 2020, Brad McWhirter, p. 461.

525

Trial Transcript, March 3, 2020, Brad McWhirter, pp. 461, 469.

526

Trial Transcript, March 3, 2020, James Terry, pp. 303–044.

527

Trial Transcript, March 3, 2020, Mark Mazz, p. 381.

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the on field personnel (camera crew, chain crew, media, etc.) would block the patron’s view.528
When the play is away from the patron (near the opposite endzone), the play would seemingly be
blocked by the player bench.529 Because the personnel on the field is constantly changing, Row 1
patrons will almost always have a somewhat obstructed view of the playing field, regardless of
where in the stadium those Row 1 seats exist.530 While putting accessible seats closer to the
endzone would result in better sightlines than the current location of accessible seats on the
sideline, it still would not result in a good viewing experience.
Additionally, while the Row 1 accessible seats are located on a “step down,” the Court
finds that even if the step down did not exist, or if the seats were six inches higher, patrons in these
seats would still be unable to see the playing field.531 Simply put, Row 1 does not offer good views
of the playing field. Accordingly, the Court finds that moving the Row 1 accessible seats from the
50-yard line to the space between endzone and the 30-yard line would not result in ADA
compliance.
Furthermore, the Court finds the alterations were made accessible to people with
disabilities “to the maximum extent feasible.” The alterations to the 100 Level, and specifically
Row 1, could not have been done in a way that would have facilitated unobstructed sightlines to

Trial Transcript, March 3, 2020, Mark Mazz, p. 454 (“If the play is in front of you, you're not having the
football players standing in front of you, but you do have the cheerleaders, you have the cameraman, you have the
media, whoever else happens to be down in that area.”).
528

529

Trial Transcript, March 3, 2020, Mark Mazz, p. 454.

Trial Transcript, March 3, 2020, Brad McWhirter, p. 462 (“When you're in the front row, you're -essentially, your encumbered view is whatever people that are on the actual field right in front of you or players,
media, people with field access. It's essentially changing constantly during the game as the game moves up and down
the field. So viewing straight ahead may be much different depending on where the actual action is, versus if it's on
the opposite side of the field, you might be looking through more players or the bench. It just depends on where the
action is on the field on how to judge those sight lines.”).
530

531
Trial Transcript, March 3, 2020, Mark Mazz, p. 376 (“Q. And does raising a wheelchair spaces up 6
inches make a difference? A. It doesn't make a difference. You still can't see a thing.”).

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the playing field. The inability of wheelchair users to see the playing field and aerial play derives
from the compact design and stacked-tier layout of the Superdome, as well as the natural dynamics
of a professional football game, rather than any alteration to the stadium. Given those initial design
choices, “the nature of [the] existing facility ma[de] it virtually impossible to comply fully with
[the] accessibility standards through [the] planned alteration[s].”532 Accordingly, the Court finds
that moving the Row 1 accessible seats from the 50-yard line to the space between endzone and
the 30-yard line is neither possible nor would it result in ADA compliance. Because Defendants
could not have made the Superdome accessible by altering the Row 1 seats, including by moving
those seats to the center of the section or by moving those seats to between the 30-yard line and
the endzone, those alterations do not give rise to liability.
As part of the 2010 Renovations, Defendants added accessible seating in Row 1 and Row
36 of the 100 Level, which offered disabled patrons ease of entry and exit as well as access to
concessions and restrooms. As discussed above, it would be virtually impossible to have
wheelchair accessible seats in the middle rows of the 100 Level. This decision meant that disabled
patrons would have certain sightline restrictions, in that disabled patrons would not have
comparable sightlines to those offered to the general public. However, as Mr. Mazz testified, it is
customary to put wheelchair accessible seating in the first and last row of the lower bowl of an
older stadium undergoing an alteration.533 The Court finds that the Superdome provides the

532

28 C.F.R. § 36.402(c).

533
Trial Transcript, March 3, 2020, Mark Mazz, p. 391 (“Because it's an existing stadium, you have a lot of
restrictions on where you can put things. If you wanted to try to come in somewhere in the center to provide somebody
at, like, at Row 18, you're going to -- to the vomitory itself is going to take out a lot of seats above of that area, probably
-- what I did say? Seven, seven to nine rows above that in that space. Also, you're going to have to figure out how to
get to that level somewhere inside the stadium. So you're coming in above -- somewhere between the -- the 100 level
concourse and the basement level below and all the existing things that may be in that place to get around that. It just
becomes a virtual nightmare trying to figure it out and whether it's even possible to do. It just makes sense that when
you're dealing with such restrictions at this point, you're putting the accessible seats in the back row and the front row
when you can.”).

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maximum extent of accessibility that is feasible given the structural limitations of the existing
facility.
E.

Whether France violated the program access requirements of the ADA
1.

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.534
Title II of the ADA provides: “[N]o 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.”535
Title II prohibits discrimination by public entities, which are defined as “any State or local
government [or] any department, agency, special purpose district, or other instrumentality of a
State or States or local government.”536 Accordingly, the Board is a public entity subject to the
requirements of Title II. Additionally, the regulations implementing the ADA provide that Title II
“applies to all services, programs, and activities provided or made available by public entities.”537
The guidance interpreting this section clarifies that “[a]ll governmental activities of public entities

534
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).
535

42 U.S.C. § 12132.

536

Id. at § 12131(1)(A), (B).

537

28 C.F.R. § 35.102(a).

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are covered, even if they are carried out by contractors.”538 Therefore, Saints football games at the
Superdome qualify as an activity for which the Board is responsible, even though SMG is
responsible for the operations of those games.
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.” 539 “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.’”540 “In addition to their respective prohibitions of
disability-based discrimination, both the ADA and the Rehabilitation Act impose upon public
entities an affirmative obligation to make reasonable accommodations for disabled individuals.”541
To establish the second element of his Title II claim, Plaintiff must show he was “denied
the benefits of services, programs, or activities” for which the Board is responsible, or was
“otherwise discriminated against” by the Board.542
2.

Legal standard for program access

As one basis for the second element of Plaintiff’s Title II claim, Plaintiff argues that France
discriminated against him because the Superdome is not readily accessible to him.543 28 C.F.R.

538

28 C.F.R. pt. 35, app. B.

539

42 U.S.C. § 12132.

540

Wells, 460 F. App’x at 311 (quoting Hale, 642 F.3d at 499).

541

Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005).

542

Wells, 460 F. App’x at 311 (quoting Hale, 642 F.3d at 499).

543

Rec. Doc. 172 at 57–61.

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§ 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.
The regulations do not “[n]ecessarily require a public entity to make each of its existing
facilities accessible to and usable by individuals with disabilities.”544 The regulations define
“facility” as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock
or other conveyances, roads, walks, passageways, parking lots, or other real or personal property,
including the site where the building, property, structure, or equipment is located.”545 Therefore,
France is not required to make each portion of the Superdome readily accessible; the issue is
whether the Superdome, when viewed in its entirety, is readily accessible. However, “[w]hile
proving that particular barriers exist might not be sufficient to establish Title II liability, each
barrier is a building block for a finding that the Stadium, viewed in its entirety, is not readily
accessible.”546
i.

New construction and alterations versus existing facilities

As discussed above, the regulations distinguish between structures built prior to the Act
taking effect in January 1992 (“existing facilities”) and facilities built or altered after January 1992
(“altered facilities”).547 A public entity’s existing facilities—those facilities constructed prior to
the 1992 effective date that remain unaltered—need not be “accessible to and usable by individuals
with disabilities.”548 Rather, for such facilities, a public entity need only provide program access,

544

28 C.F.R. § 35.150(a)(1).

545

Id. at § 35.104.

546

Pascuiti v. New York Yankees, 87 F.Supp. 2d 221, 224 (S.D.N.Y. 1999).

547

Lane, 541 U.S. at 531–32.

548

28 C.F.R. § 35.150(a)(1).

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by “operat[ing] 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.”549
However, when an existing facility undergoes alterations after the 1992 effective date, more
stringent architectural standards apply; then, the altered facilities must “be designed and
constructed in such manner that the facility or part of the facility is readily accessible to and usable
by individuals with disabilities. . . .”550 To be “readily accessible,” any part of a newly constructed
or altered facility must be constructed in conformance with the relevant ADAAG. 551 In sum,
existing facilities must satisfy the “program accessibility” standard whereas altered facilities must
comply with the “maximum extent feasible” standard.
Here, the Superdome was built in 1975, before the 1992 effective date.552 However, as
discussed above, the 2010 Renovations constitute an alteration, and therefore triggered the
“maximum extent feasible” standard. Because, the alteration regulations are confined to “the
altered portions of the facility,” the ADA’s alteration standard applies only to the 100 Level, where
the alteration occurred.553 The other portions of the Superdome that were not altered as part of the
2010 Renovations are analyzed as an existing facility under the program-access standard.554

549

Id. at § 35.150(a).

550
Id. at § 35.151(a)(1) (“Each facility or part of a facility constructed by, on behalf of, or for the use of a
public entity shall be designed and constructed in such manner that the facility or part of the facility is readily
accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.”).
551
Id. at § 35.151(c)(1)-(3) (“If physical construction or alterations commence[d] after July 26, 1992, but
prior to September 15, 2010, then new construction and alterations . . . must comply with either UFAS or the 1991
[ADAAG]. . . . If physical construction or alterations commence[d] on or after September 15, 2010 and before March
15, 2012, then new construction and alterations ... may comply with . . . [t]he 2010 [ADAAG], UFAS, or the 1991
[ADAAG]. . . . If physical construction or alterations commence[d] on or after March 15, 2012, then new construction
and alterations . . . shall comply with the 2010 [ADAAG].”).
552

Parties did not contest this fact. Rec. Doc. 163 at 4.

553

28 C.F.R. § 35.151(b)(1); 28 C.F.R. § 36.402(b).

554

The Court determined that Plaintiff failed to raise an alteration claim as to the 200 Level in the Complaint
and was therefore precluded from raising the issue at trial. SMG objected to a question related to alterations at the 200

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Therefore, the Court applies the existing facility standards—also known as the “program
accessibility” standard—to those parts of the Superdome that have not been altered.555
ii.

Methods by which a public entity may achieve program access

The regulations offer public entities a number of methods by which that may comply with
the program access requirement, including “any . . . methods that result in making its services,
programs, or activities readily accessible to and usable by individuals with disabilities.”556 “In
choosing among available methods for [achieving program access], a public entity shall give
priority to those methods that offer services, programs, and activities to qualified individuals with
disabilities in the most integrated setting appropriate.”557 Importantly, “[a] public entity is not
required to make structural changes in existing facilities where other methods are effective in
achieving compliance.”558
The Fifth Circuit found that “[w]hile there is little precedent in this circuit regarding the
application of the ADAAG to existing facilities . . . courts in various other circuits have refused to
strictly apply ADAAG requirements to existing facilities but instead rely on the ADAAG for

Level of the Superdome on the basis of relevancy. Rec. Doc. 170 at 44. France joined in the objected. Id. at 45. SMG
argued that Plaintiff’s alteration claim in the Complaint was limited to 2010 Renovations, which only impacted the
100 Level of the Superdome. Id. at 44–45. Plaintiff represented that the renovations to the 200 Level occurred
following hurricane Katrina and should qualify as an alteration. Id. at 49–50. However, Plaintiff conceded that an
alteration claim as to the 200 Level was not in the Complaint. Id. at 51. Accordingly, because Plaintiff did not assert
a 200 Level alteration claim in the Complaint, and did not move to amend the Complaint, the Court determined that
it was not an issue at trial. Id. at 44–54. However, the Court clarified that evidence related to the 200 Level for other
claims, including the program access claim, may still be admissible. Id. at 53–54.
555

Smith v. City of Lodi, No. 2:14-CV-01318-TLN-AC, 2016 WL 3197552, *5 (E.D. Cal. June 9, 2016)
(“Thus, the Court is required to apply the 2010 guidelines to any alterations made after 2010 and apply the existing
facility standards—also known as the “program accessibility” standard—to those parts of the Grape Bowl that have
not been altered.”).
556

28 C.F.R. § 35.150(b)(1).

557

Id.

558

Id. at § 35.150(b)(1).

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guidance.”559 This may be because, as the First Circuit noted, “Title II’s emphasis on ‘program
accessibility’ rather than ‘facilities accessibility’ was intended to ensure broad access to public
services, while, at the same time, providing public entities with the flexibility to choose how best
to make access available.”560 This interpretation is in line with the Supreme Court’s instruction
that, “[i]n the case of older facilities, for which structural change is likely to be more difficult, a
public entity may comply with Title II by adopting a variety of less costly measures ... [and] [o]nly
if these measures are ineffective in achieving accessibility is the public entity required to make
reasonable structural changes.”561 Accordingly, this Court will not strictly apply the ADAAG
requirements, but will rather rely on the ADAAG for guidance, in analyzing the unaltered portions
of the Superdome.
iii.

Caselaw on program access

In Greer v. Richardson Independent School District, the Fifth Circuit analyzed the program
access standard.562 There, the plaintiff, a wheelchair-using parent of a high school football player,
sued a school district under Title II because the bleachers at a high school football game were not

Greer, 472 F. App’x at 292, n. 3 (citing Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 861 (10th Cir. 2003)
(“[W]hen determining the compliance of existing facilities with the ADA under program accessibility, courts must
look at the accessibility of the facilities as a whole, not at individual elements.”) (citation and internal quotation
omitted); Parker v. Universidad de P.R., 225 F.3d 1, 6 (1st Cir. 2000) (“Title II's emphasis on ‘program accessibility’
rather than ‘facilities accessibility’ was intended to ensure broad access to public services, while, at the same time,
providing public entities with the flexibility to choose how best to make access available.”); Ass'n for Disabled Ams.
v. City of Orlando, 153 F.Supp.2d 1310, 1322 (M.D. Fla. 2001) (“Title II, the regulations implementing it, and the
(admittedly sparse) case law interpreting it, do not require that facilities built prior to 1992 comply with the stringent
technical standards imposed on facilities built after 1992.”); Access Now, Inc. v. S. Fla. Stadium Corp., 161 F.Supp.2d
1357, 1368 (S.D. Fla. 2001); Pascuiti, 87 F.Supp.2d at 226 (“[E]ven though only new construction and alterations
must comply with the [ADAAG] Standards, those Standards nevertheless provide valuable guidance.... Deviation
from the standards is relevant but not determinative; it is one consideration from which the court may conclude that
noncompliance impedes access.”).
559

560

Parker, 225 F.3d at 6.

561

Lane, 541 U.S. at 532.

562

472 F. App’x 287 (5th Cir. 2012) (unpublished).

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wheelchair accessible.563 As a result, the plaintiff watched the game from a paved area adjacent to
the bleachers through a chain link fence, where she claimed she was able to see only 15% of the
game.564 Because the paved area was sloped, the plaintiff had to hold onto the chain fence to avoid
rolling backwards.565
Unfortunately, “the regulations do not provide any objective criteria for evaluating
program accessibility.”566 As such “program 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.”567
The Fifth Circuit instructed that the first step is to determine what constitutes sufficient
access to the “program”.568 In Greer, the Fifth Circuit declined to define the precise line, but stated
that “an operator of an existing facility . . . need only show that the program offered . . . when
viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”569 In
doing so, the Court rejected the plaintiff’s attempt to nullify the “program access” standard by
conflating it with facility accessibility generally.570 However, the Fifth Circuit found that because
most attendees go to a football game to watch the game, affording wheelchair patrons the ability
to merely buy a ticket or make a purchase from the concession stand, would be insufficient to

563

Id. at 288.

564

Id.

565

Id.

566

Id. at 291–92.

567

Id.

568

Id. at 293.

569

Id. at 294 (emphasis original) (citing 28 C.F.R. § 35.150(a)).

570

Id.

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provide program access if the wheelchair user was unable to view the actual football game.571
Ultimately, the Fifth Circuit determined that the school district provided program
accessibility to wheelchair users, even though the bleachers were not accessible to wheelchairs,
because the school district provided accommodations that allowed wheelchair users to enjoy
football games.572 The court determined that the plaintiff failed to demonstrate how minor
deviations from the ADAAG requirements prevented her or other disabled individuals from
accessing the program i.e., watching a football game.573 Additionally, the court noted that two
wheelchair users had attended events at the field at issue and stated that they had no issues
attending events.574 Lastly, the court noted that the plaintiff “admitted she was able to access the
parking lot, navigate into the stadium, buy a ticket, make a purchase from the concession stand,
and view a portion of the game.”575 The court also stated it is unclear how the defendants could
have developed an “accessibility plan that would always satisfy the viewing preferences for
disabled individuals other than by what they have already done—providing several alternative
accessible seating areas.”576
Additionally, the court noted that the plaintiff’s viewing experience was “a product of her

Id. at 295 (finding that “[m]ost attendees at a [] football game . . . are not going to the stadium for the
quality of the hot dogs at the concession stand. Thus, being able to do things such as buying a ticket and visiting the
concession stand would not be sufficient to provide program access if she was unable to view the actual football
game.’).
571

572

Id.

573

Id.

574

Id.

575

Id.

Id. at 297 (“Considering the size and types of events held at Berkner B, such as football games and track
meets, it is unclear how RISD officials would be able to develop a universal accessibility plan that would always
satisfy the viewing preferences for disabled individuals other than by what they have already done—providing several
alternative accessible seating areas.”).
576

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own choices” because she “never asked if she could be accommodated by sitting somewhere else
in the stadium, such as the track that surrounds the football field, that would have provided an
unobstructed view.”577 “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.”578 Therefore, 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.”579
In Daubert v. Lindsay Unified Sch. Dist., the Ninth Circuit addressed a similar factual
circumstance.580 There, a high school football patron who used a wheelchair alleged that a school
district was in violation of Title II of the ADA because the bleachers at the high school football
field were not wheelchair accessible.581 First, the court determined that the “program access”
requirement did not require the school district to provide access to a specific area of facility, the
bleachers, because the facility was an existing facility.582 Second, the court determined that as an

Id. at 295–97 (finding that “simply asking a few questions of the event venue's staff for more suitable
accommodations is likely to be more effective and consistent with case law than remaining silent and resorting to a
Title II discrimination claim in the federal court system.”).
577

578

Id. at 296.

579

Id.

580

760 F.3d 982 (9th Cir. 2014).

581

Id. at 984.

582

Id. at 988.

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existing facility, the bleachers were not subject to the ADAAG’s requirements.583 Because the
school district offered many different locations from which spectators who used wheelchairs were
able to view football games and because those spectators enjoyed unobstructed views from at least
three of those locations, the court determined that that the football games at the football stadium
are “readily accessible” to individuals who use wheelchairs.584 Additionally, the court found that
the school district was not required to make structural changes to the facility under the program
access standard to existing facilities.585
3.

Application

Plaintiff alleges that the following barriers exist at the Superdome in violation of the
program access requirement of the ADA: (1) sightline obstructions of the field at the Front Row
Wheelchair Decks due to the presence of the players and coaches; (2) sightline obstructions at 100
Level, Row 36 of the Jumbotron, and aerial gameplay due to an overhang; (3) sightline
obstructions to the field at 100 Level Row 36 due to standing spectators; (4) the monitors at the
100 Level are not large enough; (5) there is no ADA seating at the 200 Level, in violation of the
vertical dispersion requirement; (6) there is no ADA seating at the Terrace level, in violation of
the vertical dispersion requirement; (7) the Terrace Decks are inaccessible due to width issues,
depth issues, and metal bars that block a wheelchair user’s view of the field; and (8) there is an

Id. (“As discussed above, only facilities that were constructed or altered after January 26, 1992 are subject
to the ADAAG’s requirements. With respect to facilities that were constructed prior to this date, a public entity need
only ‘operate each ... program [at that facility] ... [so that it] is readily accessible to and usable by individuals with
disabilities.’ Like the ADAAG, section 35.150 prioritizes integration, but it does not require existing facilities to
undergo structural changes to achieve integration.”) (internal citations omitted).
583

584

Id.

Id. (“In light of the structure of the facility, any further measures to provide integrated wheelchair seating
would require the School District to undertake structural alterations of the bleachers. Because we conclude that the
School District provides Daubert with program access to Lindsay High School football games under 28 C.F.R. §
35.150, and because the School District is not required to comply with the ADAAG, the School District is not required
to make such structural alterations.”).
585

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inadequate amount of compliant ADA seating within the entire Superdome.586
The Court addressed the sightlines from Row 36 and Row 1 of the 100 Level as well as the
size of the monitors in the 100 Level as part of its alteration standard analysis. Here, the Court
addresses Plaintiff’s contention that (1) the lack of wheelchair accessible seating at the 200 Level
is a violation of the vertical dispersion requirement; (2) the lack of wheelchair accessible seating
at the Terrace Level is a violation of the vertical dispersion requirement; and (3) there is an
inadequate amount of compliant ADA seating within the entire Superdome.
As discussed above, the other portions of the Superdome, including the 200 Level and the
Terrace Level, are existing facilities under the applicable regulations.587 As existing facilities, they
are analyzed under the “program accessibility” standard.588
Guiding the Court’s analysis is the Fifth Circuit’s instruction 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.”589 Thus, France “need only show that the program offered . . . when viewed in its entirety,
is readily accessible to and usable by individuals with disabilities.”590
First, the Court must define the program at issue and then, determine whether it is readily

586

Rec. Doc. 172 at 59.

587

28 C.F.R. § 35.150.

588

Smith v. City of Lodi, No. 2:14-CV-01318-TLN-AC, 2016 WL 3197552, *5 (E.D. Cal. June 9, 2016)
(“Thus, the Court is required to apply the 2010 guidelines to any alterations made after 2010 and apply the existing
facility standards—also known as the “program accessibility” standard—to those parts of the Grape Bowl that have
not been altered.”).
589

Id. at 291–92.

590

Id. at 294 (emphasis original) (citing 28 C.F.R. § 35.150(a)).

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accessible.591 In Daubert, the Ninth Circuit determined that the “program” in question was the
football game and did not include the social experience of watching the game with the crowd,
which was purely “incidental” to the football game.592 The Ninth Circuit reasoned that for purposes
of “program accessibility,” a program “is a normal function of a governmental entity,” that is,
“anything a public entity does.”593 Accordingly, the Court finds that the program at issue is Saints
football games.
Plaintiff argues that the lack of wheelchair accessible seating at the 200 Level and the
Terrace is a violation of the vertical dispersion requirement. The four uppermost levels of the
Superdome are known as the Terrace.594 While there are four decks in the Terrace that may be
considered wheelchair accessible, they are not currently used as wheelchair-designated seats for
Saints games.595 Mr. Freeman testified that the seats in the Terrace are not used as wheelchair seats
because the Superdome has other options when it comes to wheelchair accessible seating and
because there may be an access issue with getting wheelchair users to the Terrace.596
Mr. Terry inspected the depth and the width of the seats in the Terrace and determined that
they were not deep enough or wide enough to comply with either the 1991 ADAAG or the 2010
ADAAG.597 Mr. Mazz agreed that the seats in the Terrace do not comply with the 1991 or the 2010

591

Greer, 472 F. App’x at 293.

592

Daubert, 760 F.3d at 987.

593

Id. (quoting Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002)).

594

Trial Transcript, March 2, 2020, Alan Freeman, p. 151.

595

Trial Transcript, March 2, 2020, Alan Freeman, p. 152.

596

Trial Transcript, March 2, 2020, Alan Freeman, p. 152.

597

Trial Transcript, March 2, 2020, James Terry, pp. 251–54.

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ADAAG standards because they are not sufficiently deep.598 Therefore, it is undisputed that the
seating in the Terrace is not wheelchair accessible. Additionally, there are no designated
wheelchair accessible seats in the 200 Level of the Superdome.599 However, because the Terrace
and the 200 Level are unaltered, existing facilities, the fact that the seats in those section are not
accessible does not amount to exclusion under Title II so long as the Superdome provides program
access to Saints football games.
Preliminarily, the Court notes that the Fifth Circuit previously instructed that strict
compliance with the ADAAG standard is not required for existing facilities.600 As discussed above,
only facilities that were constructed or altered after January 26, 1992 are subject to the ADAAG’s
requirements.601 With respect to existing facilities, a public entity need only “operate each . . .
program [at that facility] . . . [so that it] is readily accessible to and usable by individuals with
disabilities.”602
Additionally, as in Greer and Daubert, the requirement to provide access to a football game
does not require that the public entity provide access to a specific area of facility if that area is an

598

Trial Transcript, March 3, 2020, Mark Mazz, p. 447.

599

Trial Transcript, March 2, 2020, Doug Thornton, pp. 110–11; Trial Transcript, March 2, 2020, Alan
Freeman, p. 151.
Greer, 472 F. App’x at 292, n. 3 (citing Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 861 (10th Cir. 2003)
(“[W]hen determining the compliance of existing facilities with the ADA under program accessibility, courts must
look at the accessibility of the facilities as a whole, not at individual elements.”) (citation and internal quotation
omitted); Parker, 225 F.3d at 6 (“Title II's emphasis on ‘program accessibility’ rather than ‘facilities accessibility’
was intended to ensure broad access to public services, while, at the same time, providing public entities with the
flexibility to choose how best to make access available.”); Ass'n for Disabled Ams., 153 F.Supp.2d at 1322 (“Title II,
the regulations implementing it, and the (admittedly sparse) case law interpreting it, do not require that facilities built
prior to 1992 comply with the stringent technical standards imposed on facilities built after 1992.”); Access Now, Inc.,
161 F.Supp.2d at 1368; Pascuiti, 87 F.Supp.2d at 226 (“[E]ven though only new construction and alterations must
comply with the [ADAAG] Standards, those Standards nevertheless provide valuable guidance.... Deviation from the
standards is relevant but not determinative; it is one consideration from which the court may conclude that
noncompliance impedes access.”).
600

601

28 C.F.R. § 35.151(a)(1).

602

28 C.F.R. § 35.150(a)(1).

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existing facility.603 In both Greer and Daubert, the Fifth and Ninth Circuits held that to satisfy the
program access standard, a facility need not offer any “particular . . . experience” particularly if
that “experience is merely incidental to the program the government offers (i.e., football games),
and providing this experience is not fairly characterized as ‘a normal function of a government
entity.’”604 For example, in Greer, the Fifth Circuit determined that program accessibility does not
require “that a disabled individual . . . be able to . . . experience [a football] game from the general
admission public bleachers . . . .”605
Here, Plaintiff requests that the Court order that the Superdome add wheelchair accessible
seating to the 200 Level and to the Terrace.606 But if the Court finds that Plaintiff is provided with
program access to Saints football games at the Superdome as it currently exists, the Court may not
order injunctive relief as to an unaltered portion of the facility. Importantly, Greer and Daubert
both make clear that a wheelchair using patron attending a football game is not entitled to sit in a
specific section of the stadium.607 Lastly, France is not required to make structural changes to an
existing facility where other methods are effective in achieving compliance.608 France’s duty is to

Greer, 472 F. App’x at 294 (“As an existing facility, RISD’s duty is to provide program access to events
at Berkner B, which may be achieved without providing access to the bleachers.”); Daubert, 760 F.3d at 988 (“For
these reasons, we reject Daubert’s contention that the relevant “program” is the south-side bleachers, and we conclude
that the School District complies with Title II, so long as it provides program access to its football games.”).
603

Daubert, 760 F.3d at 987 (9th Cir. 2014) (“Here, the School District offers football games as a public
program, and the bleachers are one part of the facility in which that program takes place. While sitting in the southside
bleachers may offer a particular social experience, this experience is merely incidental to the program the government
offers (i.e., football games), and providing this experience is not fairly characterized as ‘a normal function of a
government entity.’”) (citing Greer, 472 F. App’x at 293 as a “well-reasoned opinion” that reaches the same
conclusion).
604

605

Greer, 472 F. App’x at 293.

606

Rec. Doc. 172 at 79.

607

Greer, 472 F. App’x at 294; Daubert, 760 F.3d at 987–88.

28 C.F.R. § 35.150(b)(1); see also Daubert, 760 F.3d at 988 (“In light of the structure of the facility, any
further measures to provide integrated wheelchair seating would require the School District to undertake structural
alterations of the bleachers. Because we conclude that the School District provides Daubert with program access to
608

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provide program access to events at the Superdome, which may be achieved without providing
wheelchair access to the 200 Level or the Terrace.609
Here, the Court finds that Saints football games at the Superdome are readily accessible to
individuals who use wheelchairs. Spectators who use wheelchairs are able to view Saints football
games from Row 1 and Row 36 of the 100 Level. From Row 36, wheelchair using patrons enjoy
views that are comparable to the views of the general public. In both Greer and Daubert, the Fifth
and Ninth Circuits concluded that the football game at issue was made accessible by providing
alternative viewing locations to wheelchair users, which was enough to provide access when
looking at the program as a whole, even though the plaintiffs in each case alleged that the views
from each of those alternate locations were inferior.610
Here, France has provided program accessibility to wheelchair users, even though the
Terrace and the 200 Level are not accessible to wheelchairs, because the Superdome has provided
alternative accommodations that allow wheelchair users to enjoy football games.611 As in Greer,
it is unclear how France could have developed an “accessibility plan that would always satisfy the
viewing preferences for disabled individuals other than by what [he has] already done—providing
several alternative accessible seating areas.”612
Next, the Court finds that the current seating at the Superdome is appropriately integrated

Lindsay High School football games under 28 C.F.R. § 35.150, and because the School District is not required to
comply with the ADAAG, the School District is not required to make such structural alterations.”).
Greer, 472 F. App’x at 294 (“As an existing facility, RISD’s duty is to provide program access to events
at Berkner B, which may be achieved without providing access to the bleachers.”).
609

610

Id. at 293–94.

611

Id. at 295.

Id. at 297 (“Considering the size and types of events held at Berkner B, such as football games and track
meets, it is unclear how RISD officials would be able to develop a universal accessibility plan that would always
satisfy the viewing preferences for disabled individuals other than by what they have already done—providing several
alternative accessible seating areas.”).
612

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under the circumstances. The regulations provide that a public entity must “give priority to those
methods that offer services, programs, and activities to qualified individuals with disabilities in
the most integrated setting appropriate.”613 Spectators who use wheelchairs may sit at Row 1 or
Row 36 of the 100 Level. In Daubert, the Ninth Circuit determined that, the alternate accessible
viewing sites were appropriately integrated, even though they were not as integrated as the
bleachers, because they were located near the bleachers or in other places where spectators
congregated.614
Additionally, in light of the structure of the facility, any further measures to provide
integrated wheelchair seating would require Defendants to undertake structural alterations of the
other sections of the Superdome, namely the 200 Level and the Terrace. “A public entity is not
required to make structural changes in existing facilities where other methods are effective in
achieving compliance.”615 Because the Court finds that France provides Plaintiff with program
access to Saints football games, the Court will not require such structural alterations.616
Lastly, the Court addresses the total number of wheelchair accessible seats in the
Superdome as a whole. Section 4.1.3(19) of the 1991 ADAAG provides that in places of assembly
with fixed seating accessible wheelchair locations, if the capacity of seating in the assembly area
is over 500, 6 wheelchair locations, plus 1 additional space for each total seating capacity increase

613

28 C.F.R. § 35.150(b)(1).

614

Daubert, 760 F.3d at 988.

615

28 C.F.R. § 35.150(b)(1).

Id. See also Daubert, 760 F.3d at 988 (“In light of the structure of the facility, any further measures to
provide integrated wheelchair seating would require the School District to undertake structural alterations of the
bleachers. Because we conclude that the School District provides Daubert with program access to Lindsay High School
football games under 28 C.F.R. § 35.150, and because the School District is not required to comply with the ADAAG,
the School District is not required to make such structural alterations.”).
616

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of 100, are required.617 Section 221.2.1.1 of the 2010 ADAAG provides that if there are more than
5001 seats in an assembly area, 36 wheelchair spaces, plus 1 for each 200, or fraction thereof, over
5000, is required.618 As discussed above, although the Court finds that the 1991 ADAAG, and
specifically Section 4.33.3 applies, to calculate the total required number of wheelchair accessible
seats, and the distribution of those seats, the Court will utilize Section 221.1 of the 2010 ADAAG
because if the Court finds that the Superdome does not comply with 1991 ADAAG dispersion
requirements, the 2010 ADAAG requirement would now apply.619 When the number of wheelchair
spaces in an assembly area exceeds 5001, Section 221.2.1 of the 2010 ADAAG requires 36
wheelchair spaces plus 1 for each 200 over 5000.620
At trial, Plaintiff introduced a “Seating Count” prepared by the Architects working on the
current renovations to the Superdome.621 The document details the existing seating count at the
Superdome.622 According to the Seating Count, the Superdome has a total of 73,098 seats.623 Using
the formula in the 2010 ADAAG, 377 wheelchair accessible seats are required in the Superdome

617
1991 ADAAG at § 4.1.3(19) (“In places of assembly with fixed seating accessible wheelchair locations
shall comply with 4.33.2, 4.33.3, and 4.33.4 and shall be provided consistent with the following table: Capacity of
Seating in Assembly Areas . . . over 500[,] . . . Number of Required Wheelchair Locations . . . 6, plus 1 additional
space for each total seating capacity increase of 100.”).
618

2010 ADAAG at § 221.2.1.1.

Landis, 2019 WL 7157165 at * 18 (internal citations omitted) (“In calculating the total required number
of accessible seats, and the proportional distribution of those seats, the Court will utilize Section 221.1 of the 2010
ADAAG’s calculations . . . The Court utilizes the more recent calculations set forth in Section 221.1 of the 2010
ADAAG because even were T-Mobile Park not to comply with the 1991 ADAAG’s requirement, the 2010 ADAAG’s
requirement would now apply. Thus, while in order to comply with the ADA’s requirements accessible seating in TMobile Park must be distributed according to Section 4.33.3’s mandate, the Court will utilize the current 2010
standards as a yardstick for the proper proportional representation that should be present in the stadium between
accessible and nonaccessible seats.”).
619

620

2010 ADAAG at § 221.2.1.

621

Trial Transcript, March 2, 2020, Doug Thornton, p. 120.

622

Trial Transcript, March 2, 2020, Doug Thornton, p. 120.

623

Rec. Doc. 179-6.

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as a whole.624 Presently, there are 236 wheelchair accessible seats in the Superdome, all located
within the 100 Level.625 Accordingly, the Superdome does not comply with the 2010 ADAAG as
it relates to the total number of wheelchair accessible seats required in the stadium as a whole.
Additionally, because the 1991 ADAAG has an even stricter requirement as to the total number of
wheelchair accessible seats, the Superdome does not comply with the 1991 ADAAG either.
As discussed above, the Fifth Circuit previously instructed that strict compliance with the
relevant ADAAG standard is not required for existing facilities.626 Rather, only facilities that were
constructed or altered after January 26, 1992 are subject to the ADAAG’s requirements. 627 With
respect to existing facilities, a public entity need only “operate each . . . program [at that facility]
. . . [so that it] is readily accessible to and usable by individuals with disabilities.”628 Here, the only
portion of the Superdome that was altered is the 100 Level. The 200 Level and the Terrace were
not altered as part of the 2010 Renovations. The Court previously determined that the altered
portion of the Superdome, the 100 Level, complies with the number of wheelchair seats required
by the applicable ADAAG standards for alterations.

624

73,098 – 5000 = 68,098. 68,098 / 200 = 340.49. 340.49 + 36 = 376.49.

625

Parties did not contest this fact. Rec. Doc. 163 at 5.

Greer, 472 F. App’x at 292, n. 3 (citing Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 861 (10th Cir. 2003)
(“[W]hen determining the compliance of existing facilities with the ADA under program accessibility, courts must
look at the accessibility of the facilities as a whole, not at individual elements.”) (citation and internal quotation
omitted); Parker, 225 F.3d at 6 (“Title II's emphasis on ‘program accessibility’ rather than ‘facilities accessibility’
was intended to ensure broad access to public services, while, at the same time, providing public entities with the
flexibility to choose how best to make access available.”); Ass'n for Disabled Ams., 153 F.Supp.2d at 1322 (“Title II,
the regulations implementing it, and the (admittedly sparse) case law interpreting it, do not require that facilities built
prior to 1992 comply with the stringent technical standards imposed on facilities built after 1992.”); Access Now, Inc.,
161 F.Supp.2d at 1368; Pascuiti, 87 F.Supp.2d at 226 (“[E]ven though only new construction and alterations must
comply with the [ADAAG] Standards, those Standards nevertheless provide valuable guidance.... Deviation from the
standards is relevant but not determinative; it is one consideration from which the court may conclude that
noncompliance impedes access.”).
626

627

28 C.F.R. § 35.151(a)(1).

628

Id. at § 35.150(a)(1).

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Noting that strict compliance with the relevant ADAAG standard is not required for
existing facilities and that the Court is to look at the accessibility of the facility as a whole, not at
individual elements, the Court finds that France satisfies the program access requirement, even
though the Superdome does not have the requisite the total number of seats per the ADAAG. The
Fifth Circuit has instructed that the relevant ADAAG is to be utilized as a guideline in analyzing
the program access requirement. Here, despite the fact that the ADAAG would require 377
wheelchair accessible seats, and the Superdome only has 236 wheelchair accessible seats, the
Court nonetheless finds that France satisfies the program access requirement when viewing the
Superdome as a whole. As a district judge for the Southern District of New York noted, “[w]hile
proving that particular barriers exist might not be sufficient to establish Title II liability, each
barrier is a building block for a finding that the Stadium, viewed in its entirety, is not readily
accessible.”629 Here, this one building block is not enough for the Court to conclude that the
Superdome, when viewed in its entirety, is not readily accessible to wheelchair users.
Additionally, in light of the structure of the facility, any further measures to provide
additional wheelchair seating would require France to undertake structural alterations of the other
sections of the Superdome, namely the 200 Level and the Terrace. “A public entity is not required
to make structural changes in existing facilities where other methods are effective in achieving
compliance.”630 Because the Court finds that France provides Plaintiff with program access to
Saints football games, the Court will not require such structural alterations.631

629

Pascuiti, 87 F.Supp.2d at 224.

630

28 C.F.R. § 35.150(b)(1).

Id. See also Daubert, 760 F.3d at 988 (“In light of the structure of the facility, any further measures to
provide integrated wheelchair seating would require the School District to undertake structural alterations of the
bleachers. Because we conclude that the School District provides Daubert with program access to Lindsay High School
631

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In sum, the program, when viewed in its entirety, is readily accessible to and usable by
individuals with disabilities.632 Accordingly, the Court finds that Plaintiff was not denied program
access to Saints football games.
F.

Whether France denied Plaintiff the opportunity to participate in or benefit from, an aid,
benefit, or service
As another basis for the second element of Plaintiff’s Title II claim, Plaintiff argues that

France discriminated against him by denying him the opportunity to participate in or benefit from,
an aid, benefit, or service.633 Specifically, Plaintiff alleges that France’s action denied Plaintiff an
equal opportunity to view the playing field, aerial plays, and the Jumbotron.634
The regulations detail what a public entity may not do if it is to ensure that it does not
exclude persons with disabilities from enjoying the same benefits afforded to the general
population. In pertinent part, the regulations provide:
(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or
through contractual, licensing, or other arrangements, on the basis of disability—
(i) Deny a qualified individual with a disability the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity to
participate in or benefit from the aid, benefit, or service that is not equal to
that afforded others;635
In Alexander v. Choate, the United States Supreme Court held that section 504 of the
Rehabilitation Act “requires that an otherwise qualified handicapped individual must be provided

football games under 28 C.F.R. § 35.150, and because the School District is not required to comply with the ADAAG,
the School District is not required to make such structural alterations.”).
632

Greer, 472 Fed. Appx. at 294 (citing 28 C.F.R. § 35.150(a)).

633

Rec. Doc. 172 at 61–63.

634

Id. at 62.

635

28 C.F.R. § 35.130(b)(1)(i–iii).

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with meaningful access to the benefit” that the public entity offers.636 The Ninth and Second
Circuits have applied this construction of section 504 in ADA Title II cases.637 The Fifth Circuit
has reasoned that because “[t]he remedies, procedures, and rights available under the
Rehabilitation Act parallel those available under the ADA”638 the “‘[j]urisprudence interpreting
either section is applicable to both.’”639
The Court finds that Plaintiff has failed to show that France denied Plaintiff the opportunity
to participate in or benefit from an aid, benefit, or service. The ADA does not entitle wheelchairbound individuals to a preferred modification or accommodation. Rather, a plaintiff is entitled to
“meaningful access.”640 “‘Meaningful access,’ however, does not mean ‘equal access’ or
preferential treatment.”641 Section 504 and the ADA “seek[ ] to assure evenhanded treatment and
the opportunity for handicapped individuals to participate in and benefit from programs receiving
federal assistance [however] [t]he[se] Act[s] do [ ] not guarantee the handicapped equal results. . .
.’”642 Lastly, if alternative reasonable accommodations already allow for “meaningful access,” a
claim for injunctive relief must fail.643
Here, the Court finds that Plaintiff already has meaningful access to Saints games at the

636

469 U.S. 287, 301 (1985).

637

K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013); McElwee v. County
of Orange, 700 F.3d 635, 641 (2d Cir. 2012).
638

Cadena v. El Paso Cty., 946 F.3d 717 (5th Cir. 2020) (citing Delano-Pyle v. Victoria Cty., 302 F.3d 567,
574 (5th Cir. 2002)).
639

Delano-Pyle, 302 F.3d at 574 (quoting Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000)).

640

Alexander, 469 U.S. at 301.

641

A.M. ex rel. J.M. v. NYC Dep't of Educ., 840 F.Supp. 2d 660, 680 (E.D.N.Y. 2012), aff'd sub nom. Moody
ex rel. J.M. v. NYC Dep't of Educ., 513 F. App’x 95 (2d Cir. 2013).
642

Choate, 469 U.S. at 304 (internal citations omitted).

643
Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir.2003) (“There would be no need for injunctive
relief if the plaintiffs were already being reasonably accommodated.”).

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Superdome. The Court addressed the sightlines from Row 36 and Row 1 as well as the Jumbotron
above. Based on those findings, the Court concludes that Plaintiff had the opportunity to participate
in Saints games at the Superdome. Accordingly, the Court finds that Plaintiff has not shown that
France denied Plaintiff an equal opportunity to participate in Saints games at the Superdome.
Plaintiff argues this case is analogous to Henrietta D. v. Giuliani.644 There, a district judge
held that the City of New York failed to provide meaningful access to public assistance programs,
benefits, and services to city residents with acquired immune deficiency syndrome or HIV-related
illnesses.645 But here, the Court cannot conclude that “[t]he extensive evidence proffered at trial .
. . establishes unequivocally that defendants are chronically and systematically failing to provide
plaintiffs with meaningful access to critical subsistence benefits and services, with devastating
consequences.”646 Plaintiff was afforded meaningful access to the Superdome. Accordingly, the
Court finds that Plaintiff has failed to show that France denied Plaintiff the opportunity to
participate in or benefit from an aid, benefit, or service.
G.

Whether France and SMG failed to provide a requested reasonable accommodation
1.

Legal standard for a reasonable accommodation / modification

Title III requires a public accommodation to make reasonable modifications when the
modifications are necessary to afford facilities to individuals with disabilities.647 In Johnson v.

644

119 F.Supp. 2d 181 (E.D.N.Y. 2000), aff'd sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir.

645

Id.

2003)

Id. at 209 (“At this time, the Court finds that plaintiffs demonstrated at trial that the ramp that DASIS
purports to be is broken, i.e., that defendants are failing to make the reasonable accommodations necessary to ensure
plaintiffs meaningful access to, and an equal opportunity to benefit from, the social welfare benefits and services that
defendants provide to eligible New York City residents.”).
646

647
42 U.S.C.A. § 12182(b)(2)(A)(ii) (“[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”);

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Gambrinus Co./Spoetzl Brewery, the Fifth Circuit imported the analytical framework and
allocation of burdens of proof developed in the context of Title I jurisprudence into Title III
“reasonable modifications” cases.648 Accordingly, the Court employs the same burden shifting
framework to the present Title III analysis.
Unlike Titles I and III, Title II does not include an explicit obligation to make reasonable
accommodations. However, Fifth Circuit caselaw “recognize[s] that a public entity’s failure
reasonably to accommodate the known limitations of persons with disabilities can also constitute
disability discrimination under Title II.”649 Additionally, the regulations implementing Title II
require a public entity to make reasonable modifications when necessary to avoid discrimination
on the basis of a disability.650
Relatedly,

Plaintiff

uses

the

terms

“modification”

and

“accommodation”

interchangeably.651 The term “reasonable accommodations” is derived from the employment

28 C.F.R. § 36.302(a) (“A public accommodation shall make reasonable modifications in policies, practices, or
procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the
modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or
accommodations.”).
648

116 F.3d 1052 (5th Cir. 1997).

649

Windham v. Harris Cty., Texas, 875 F.3d 229, 235 (5th Cir. 2017) (citing Bennett-Nelson v. La. Bd. of
Regents, 431 F.3d 448, 454 & n.11 (5th Cir. 2005) (“[Title II] impose[s] upon public entities an affirmative obligation
to make reasonable accommodations for disabled individuals.” (citing 42 U.S.C. § 12131)); Jin Choi v. Univ. of Tex.
Health Sci. Ctr. at San Antonio, 633 Fed.Appx. 214, 215 (5th Cir. 2015); Ball v. LeBlanc, 792 F.3d 584, 596 n.9 (5th
Cir. 2015)); see also Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1195 n. 8 (10th Cir. 2007) (“Title
II’s use of the term ‘reasonable modifications' is essentially equivalent to Title I’s use of the term ‘reasonable
accommodation.’”); McGary v. City of Portland, 386 F.3d 1259, 1266 n. 3 (9th Cir. 2004) (“Although Title II of the
ADA uses the term ‘reasonable modification,’ rather than ‘reasonable accommodation,’ these terms create identical
standards.”).
650
28 C.F.R. § 35.130(b)(7) (“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.”).
651

See Rec. Doc. 172 at 63–65.

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discrimination provisions of Title I.652 The regulations implementing Titles II and III define
discrimination to include the failure to make “reasonable modifications.” The term “reasonable
accommodations” in Title I is generally considered synonymous with the term “reasonable
modifications” in Title II.653 Accordingly, the Court interprets the term “reasonable modification”
as used in Titles II and III to have the same meaning as the term “reasonable accommodation” as
used in Title I.654
In Johnson v. Gambrinus Co./Spoetzl Brewery, the Fifth Circuit applied the analysis from
a Title I reasonable accommodations case in the employment context to a Title III reasonable
modifications case.655 In Johnson, the plaintiff alleged that the owner of a beer brewery’s refusal

42 U.S.C. § 12112(b)(5)(A)–(B) (defining discrimination to include “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of the business of such covered entity” or “denying employment opportunities to
a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the
need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee
or applicant”).
652

653

See, e.g., Seremeth v. Bd. of Cty. Comm'rs of Frederick, 673 F.3d 333, 336 (4th Cir. 2012); Robertson v.
Las Animas Sheriff’s Dep't, 500 F.3d 1185, 1195 n.8 (10th Cir. 2007) (“Title II’s use of the term ‘reasonable
modifications’ is essentially equivalent to Title I’s use of the term ‘reasonable accommodation.’”); McGary v.
Portland, 386 F.3d 1259, 1266 n.3 (9th Cir. 2004) (“Although Title II of the ADA uses the term ‘reasonable
modification,’ rather than ‘reasonable accommodation,’ these terms create identical standards.”); McElwee v. County
of Orange, 700 F.3d 635, 640 n.2 (2d Cir. 2012) (finding that “courts use the terms ‘reasonable modifications’ in Title
II and ‘reasonable accommodations’ in Title I interchangeably”) (collecting cases).
654
See Simmang v. Texas Bd. of Law Examiners, No. A-03-CA-650 LY, 2005 WL 8155707, at *8 n.8 (W.D.
Tex. Apr. 7, 2005).

116 F.3d 1052, 1059 (5th Cir. 1997) (“While Riel was a Title I reasonable accommodations case, its
analysis is easily transferrable to the Title III reasonable modifications context. The language of both provisions is
very similar: Title I defines discrimination to include “not making reasonable accommodations ... unless [the
defendant] can demonstrate that the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A).
Title III defines discrimination to include “a failure to make reasonable modifications ... unless the entity can
demonstrate that making such modifications would fundamentally alter the nature of [the public accommodation].”
Id. § 12182(b)(2)(A)(ii). In light of the statutes' parallel language, we find no basis for distinguishing their respective
burdens of proof. While Title I provides an undue hardship defense and Title III provides a fundamental alteration
defense, fundamental alteration is merely a particular type of undue hardship. See 29 C.F.R. pt. 1630 app., § 1630.2(p).
Consequently, while the scope of the affirmative defense under Title III is more narrow than that provided by Title I,
the type of proof—that is, proof focusing on the specific circumstances rather than on reasonableness in general—is
the same.”).
655

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to allow him to take a brewery tour with his guide dog violated the ADA.656 The Fifth Circuit
described the reasonable modifications framework in a Title III case as follows:
The plaintiff has the burden of proving that a modification was requested and that
the requested modification is reasonable. The plaintiff meets this burden by
introducing evidence that the requested modification is reasonable in the general
sense, that is, reasonable in the run of cases. While the defendant may introduce
evidence indicating that the plaintiff's requested modification is not reasonable in
the run of cases, the plaintiff bears the ultimate burden of proof on the issue. If the
plaintiff meets this burden, the defendant must make the requested modification
unless the defendant pleads and meets its burden of proving that the requested
modification would fundamentally alter the nature of the public accommodation.
The type of evidence that satisfies this burden focuses on the specifics of the
plaintiff's or defendant's circumstances and not on the general nature of the
accommodation. Under the statutory framework, such evidence is relevant only to
a fundamental alteration defense and not relevant to the plaintiff's burden to show
that the requested modification is reasonable in the run of cases.657
A plaintiff “need [not] go into the specifics of how” the modification would function, but
he must actually request a reasonable modification.658 “An accommodation is reasonable if it is
both efficacious and proportional to the costs to implement it. An accommodation is unreasonable
if it imposes undue financial or administrative burdens or requires a fundamental alteration in the
nature of the program.”659 “Determination of the reasonableness of a proposed modification is
generally fact-specific.”660
2.

Analysis

Plaintiff’s counsel alleges that he sent a pre-suit letter to France and SMG, and Christopher

656

Id. at 1055–56.

657

Id. at 1059–60 (internal citations omitted).

Elliott v. Harris, 205 F. App’x 255, 258 (5th Cir. 2006) (“Thus, for example, Elliott did not need to go
into the specifics of how the lead rope would be used. But he still needed to show the requested modification.”).
658

659

Simmang v. Texas Bd. of Law Examiners, No. A-03-CA-650 LY, 2005 WL 8155707 (W.D. Tex. Apr. 7,
2005) (citing Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002)).
660

Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 508 (4th Cir. 2016).

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Walters (“Walters”), an Assistant Attorney General for the State of Louisiana on November 21,
2017.661 The letter was meant to serve “as a formal request to meet to discuss whether [Plaintiff’s]
issues and claims can be resolved without litigation.”662 The letter documented Plaintiff’s
grievances regarding the designated accessible seating.663 The letter then stated that Plaintiff and
his counsel “welcome an opportunity to sit down together to discuss these issues, and what
LSED/SMG intends to do to correct them.”664 While the letter does not specifically state the
modifications Plaintiff was seeking, it does generally set forth Plaintiff’s grievances and asks
Defendants to correct those grievances.
On January 10, 2018, Plaintiff’s counsel emailed Walters.665 The emailed provided: “The
attached letter was sent on November 21, 2017. We copied you via US Mail. We’ve not heard a
response from anyone yet. We hope we can resolve this matter without litigation. Please let me
know if you would like to work together to resolve the issues detailed in the letter. If not, we will
move forward with a lawsuit.”666 The following day, Walters forwarded the email to Larry Roedel,
then the Board’s General Counsel, and Alan Freeman, the General Manager of the Superdome and
an employee of SMG.667 At trial, Mr. Freeman confirmed that the email address listed,
[e-mail], was his email address at the time and that he had no reason

661

Rec. Doc. 179-1.

662

Id. at 1.

663

Id. at 1–2.

664

Id. at 2.

665

Rec. Doc. 179-9.

666

Id. at 2.

667

Id. at 1.

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to believe he did not receive the forwarded email from Walters.668 However, Mr. Freeman testified
that he did not recall seeing the letter.669
i.

Whether a reasonable modification was requested

Under Johnson, the plaintiff must first prove that a reasonable modification was
requested.670 This request must consist of more than just a statement that the person with the
disability is “unhappy with the manner in which” the defendant handled the situation.671 Rather,
the plaintiff must suggest a modification that “would rectify the problem which he perceives.”672
A plaintiff “need [not] go into the specifics of how” the modification would function, but he must
actually request a reasonable modification.673
SMG first argues that Plaintiff has not proven that he requested an accommodation because
he failed to show that Defendants actually received the pre-suit letter. SMG does not dispute that
the addresses shown on the letter are the proper addresses or argue that Plaintiff failed to properly
stamp or mail the letter. Instead, SMG points out that the letter indicates that it was mailed via
certified mail and that Plaintiff did not introduce the return receipt as evidence.674
In Mulder v. Comm’r, the Fifth Circuit considered whether the IRS had exercised due

668

Trial Transcript, March 2, 2020, Alan Freeman, p. 155.

669

Trial Transcript, March 2, 2020, Alan Freeman, p. 154.

670

Johnson, 116 F.3d at 1059.

671

Dahlberg v. Avis Rent A Car Sys., Inc., 92 F.Supp. 2d 1091, 1108 (D. Colo. 2000) (finding that a disabled
driver failed to satisfy the Johnson burden shifting framework because he did not suggest any modification to the car
rental company’s reservation system which would address his concerns and did not produce any evidence that
modification of system would be reasonable in the run of cases).
672

Id.

Elliott, 205 F. App’x at 258 (“Thus, for example, Elliott did not need to go into the specifics of how the
lead rope would be used. But he still needed to show the requested modification.”).
673

674

Rec. Doc. 174 at 23–24.

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diligence in ascertaining the address of a taxpayer. The court held:
The notice of deficiency was sent by certified mail, return receipt requested. [The
plaintiff], his mother, and his CPA all deny knowledge of the notice. There is no
proof of delivery in the record. Moreover, the IRS file does not contain either the
original letter or the executed return receipt. While it is presumed that a properlyaddressed piece of mail placed in the care of the Postal Service has been delivered,
no such presumption of delivery exists for certified mail when the requested return
receipt is not received by the sender . . . . As the [Seventh Circuit has] observed,
“[t]he fact that the Commissioner's file contains no return receipt for the
[deficiency] notice . . . fosters the conclusion that fault for the petitioner's failure to
receive notice must rest with the Postal Service or the Commissioner, but, in any
event, not with petitioners. Either the Postal Service mishandled the notice or the
Commissioner’s agents misplaced the return receipt” . . . . The court concluded that
if the delivery receipt was not returned to the IRS, the notice letter must not have
been delivered.675
The reason for such a holding “is that the sender of a certified letter who does not receive
the return receipt is on notice that the addressee may not have received the letter . . . . It is then
incumbent upon the sender to inquire with the addressee or send the letter again. In this case,
plaintiff did neither.”676 “The strong presumption of delivery is justified for certified mail because
of the extra assurances of effective delivery provided by the U.S. Postal Service. When certified
mail is used, the Postal Service’s delivery efforts are documented: there is a return receipt or
written proof of attempted delivery and notification to the addressee of certified mail.”677
In Lundy v. United States, a district judge in the United States District Court or the Southern
District of Texas found a “broad judicial consensus on certified mail; specifically, that any
presumption in favor of mailing or delivery is destroyed when the sender cannot produce the return

Mulder v. Comm’r, 855 F.2d 208, 212 (5th Cir. 1988) (quoting McPartlin v. Commissioner, 653 F.2d
1185, 1191 (7th Cir. 1981)).
675

676

Moya v. United States, 35 F.3d 501, 504 (10th Cir. 1994) (citing McPartlin, 635 F.2d at 1191).

677

Nibagwire v. Gonzales, 450 F.3d 153, 156 (4th Cir. 2006).

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receipt.”678 In McCall v. Bowen, the Fifth Circuit found that a factfinder could reasonably infer
receipt of a letter sent by certified mail in the absence of a return receipt where an Agency provided
a copy of the letter which was properly addressed, date stamped, and had the certified mail number
written on it and submitted an affidavit that the letter had been sent to that address by certified
mail.679 In Crear v. Select Portfolio Servicing Inc., the Fifth Circuit determined that a declaration
stating that letters were sent by certified mail was prima facie evidence that the letters were sent.680
Here, Plaintiff introduced into evidence a letter that has the words “VIA CERTIFIED
MAIL – RETURN RECEIPT” at the top.681 Plaintiff has not produced the return receipt for the
letter. Additionally, Plaintiff has not provided a declaration or affidavit stating that the letter had
been sent to the addresses on the letter by certified mail. Moreover, there is no certified mail
number written on the letter. The Fifth Circuit and district courts in the Fifth Circuit have generally
held that there is no presumption of delivery for certified mail when the return receipt is not in the
record, there is no affidavit that the letter was sent to the address by certified mail, and there is no
certified mail number written on the letter.682 Accordingly, the presumption in favor of delivery of
the pre-suit letter is destroyed by Plaintiff’s failure to introduce the above described evidence.
However, the Court may still infer receipt of the pre-suit letter. In McCall v. Bowen, the
Fifth Circuit found that a factfinder could reasonably infer receipt of a letter sent by certified mail
in the absence of a return receipt where an Agency provided a copy of the letter which was properly

678

2007 WL 655756, at *5 (S.D.Tex. Feb. 27, 2007).

679

832 F.2d 862, 864–65 (5th Cir. 1987).

680

760 F. App’x 291, 295 (5th Cir. 2019).

681

Rec. Doc. 179-1.

682

See Mulder, 855 F.2d at 212; Lundy, 2007 WL 655756, at *5.

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addressed, date stamped, and had the certified mail number written on it. 683 The Agency also
submitted an affidavit that the letter had been sent to that address by certified mail.684 While
Plaintiff did not write the certified mail number on the letter nor submit an affidavit that the letter
had been sent to that address by certified mail, the evidence shows that at some point, Defendants
were made aware of Plaintiff’s pre-suit letter. Mr. McGuire, an ADA consultant who has worked
with the Board and SMG, was made aware of Plaintiff’s disability and sightline issues from his
seats.685 Mr. McGuire discussed the seating options with Plaintiff, eventually moved Plaintiff to
four different seating locations, and followed up with Plaintiff to ask how those seats were.686
Additionally, Plaintiff’s counsel’s email to Walters clearly refers to the attachment as the
November pre-suit letter. It is undisputed that Walters forwarded this email to representatives of
the Board and SMG. Based on the above facts, the Court concludes that the pre-suit letter was
delivered to Defendants.
However, Plaintiff at no point actually requests a modification or accommodation in the
letter. Plaintiff’s letter highlights his “grievances,” but does not request an accommodation or
modification that would rectify those grievances. The request for a reasonable modification is more
than just a statement that the person with the disability is “unhappy with the manner in which” the
defendant handled the situation.687 Rather, the plaintiff must suggest a modification that “would

683

832 F.2d 862, 864–65 (5th Cir. 1987).

684

Id.

685

Trial Transcript, March 2, 2020, Kevin McGuire, pp. 178–79.

686

Trial Transcript, March 2, 2020, Kevin McGuire, pp. 186–87.

687

Dahlberg, 92 F.Supp. 2d at 1108 (finding that a disabled driver failed to satisfy the Johnson burden
shifting framework because he did not suggest any modification to the car rental company’s reservation system which
would address his concerns and did not produce any evidence that modification of system would be reasonable in the
run of cases).

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rectify the problem which he perceives.”688 The closest Plaintiff comes to requesting a
modification is stating that he “welcome[s] an opportunity to sit down together to discuss these
issues, and what LSED/SMG intends to do to correct them.”689
In Elliott v. Harris, the plaintiff, a blind 15-year old, requested a lead rope so he could ride
horses at the defendant’s establishment.690 When the defendant refused the request and refunded
the payment, the plaintiff filed suit under Title III.691 The plaintiff appealed the district court’s
final judgment, arguing that the district court erred by limiting its jury instructions to the plaintiff’s
proposed use of a lead rope.692 The Fifth Circuit affirmed, finding that the plaintiff failed to suggest
“any other modes of accommodation on which the district court should have instructed the jury.”693
While the plaintiff “did not need to go into the specifics of how the lead rope would be used[,] he
still needed to show the requested modification.”694 Because the only modification the plaintiff
referred to was the lead rope, that was the only modification the jury was allowed to consider.695
In Shaywitz v. Am. Bd. of Psychiatry & Neurology, a physician who suffered from dyslexia
and an anxiety disorder alleged that the defendant, the American Board of Psychiatry and
Neurology, failed to accommodate his disability in administering its certification examination.696

688

Id.

689

Rec. Doc. 179-1 at 2.

690

205 F. App’x 255, 256 (5th Cir. 2006).

691

Id.

692

Id. at 257.

693

Id. at 258.

694

Id.

695

Id.

696

848 F.Supp.2d 460, 461 (S.D.N.Y. 2012).

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The plaintiff’s counsel contacted the defendant by phone and submitted a written letter to the
defendant, detailing plaintiff’s qualifications, his dyslexia and anxiety disorder, and his attempts
to pass the certification examination.697 As in this case, the plaintiff “rest[ed] his claim alleging
failure to accommodate on the September 2007 Letter written by his counsel. . . .”698 The district
court determined that the letter was deficient because it “d[id] not provide any documentation
regarding [the plaintiff’s] conditions, nor d[id] it contain an identified request for
accommodation.”699 While the district court found that the letter “explicitly discusses [the
plaintiff’s] dyslexia, cardiac arrhythmias and anxiety, it d[id] not provide any documentation
regarding those conditions, nor d[id] it contain an identifiable request for accommodation. Instead,
the letter threatens litigation and ends essentially with a legal conclusion that ‘there is no rational
reason to deny Board certification to [the plaintiff].’”700 Because the pre-suit letter did not “contain
an identifiable request for accommodation,” it could not be considered a request for a reasonable
accommodation.701
In Dahlberg v. Avis Rent A Car Sys., Inc., the plaintiff, a disabled driver, alleged that the
defendant, an automobile rental company, failed to make a reasonable modification to its allegedly
discriminatory reservation system.702 The district court determined that the plaintiff failed to
satisfy the Johnson burden shifting framework because he did not suggest an actual modification
Id. at 465. The letter provided in sum: “[w]e believe there is no rational reason to deny Board certification
to Dr. Shaywitz and that the [Board]'s actions in denying Dr. Shaywitz the opportunity to fully pursue his chosen
profession on account of his medical condition and in continuing to apply concededly unreliable subjective filters to
restrict Dr. Shaywitz’s ability to compete for business opportunities is unlawful.”
697

698

Id. at 467.

699

Id. at 468.

700

Id.

701

Id.

702

92 F.Supp.2d 1091 (D. Colo. 2000).

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to the defendant’s reservation system which would address his concerns, and did not produce any
evidence that modification of that system would be reasonable in the run of cases.703 The court
reasoned that a request for a reasonable modification must consist of more than just a statement
that the person with the disability is “unhappy with the manner in which” the defendant handled
the situation.704 Rather, the plaintiff must suggest a modification that “would rectify the problem
which he perceives.”705
Instead, the plaintiff “attempt[ed] to deflect his burden of suggesting a reasonable
modification onto” the defendant.706 The district court found that such an approach is inconsistent
with the Johnson burden shifting framework.707 Similarly, regarding defendant’s use of an outside
reservation system, “to the extent that [the plaintiff’s] suggestion that [the defendant] ‘use
something else’ can even be viewed as a suggested modification,” the district court found that
“such a modification [was] unreasonable as a matter of law.”708 Dahlberg makes clear that a
plaintiff must suggest a specific modification––an identifiable change in policy or procedure
beyond a simple request to “do something”––in order to satisfy the first step of Johnson. Without
such an explicit request, the court cannot adequately determine whether the modification is
reasonable.
Here, as in Shaywitz, Plaintiff “rests his claim alleging failure to accommodate on the

703

Id. at 1105–08.

704

Id. at 1108.

705

Id.

706

Id.

707

Id.

708

Id. at 1109.

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[November pre-suit letter] written by his counsel. . . .”709 The Complaint also provides that the
November 2017 pre-suit letter is the basis for his reasonable accommodation claim.710 And here,
as in Shaywitz, while the letter “explicitly discusses [the plaintiff’s disability] . . . it [does not]
contain an identifiable request for accommodation. Instead, the letter threatens litigation and ends
essentially with a legal conclusion. . . .”711 Because the November pre-suit letter does not “contain
an identifiable request for accommodation,” it cannot not be considered a request for a reasonable
accommodation.712
The caselaw described above shows that it is not enough to simply highlight disability
related grievances. Rather, a plaintiff seeking to make a reasonable modification claim must also
identify a reasonable modification, a specific solution which would rectify the plaintiff’s
grievances. Here, Plaintiff’s counsel makes no request for a reasonable modification in his
November pre-suit letter. If anything, Plaintiff’s counsel attempts to place the burden on
Defendants to propose a reasonable modification when he writes that he would “welcome an
opportunity to sit down together to discuss these issues, and what LSED/SMG intends to do to
correct them.”713
However, Johnson makes clear that under the burden shifting framework adopted by the
Fifth Circuit, the “plaintiff has the burden of proving that a modification was requested and that

709

Shaywitz, 848 F.Supp.2d at 467.

Rec. Doc. 1 at 8 (“In November 2017, the undersigned counsel sent a pre-suit conciliation letter to the
DEFENDANTS notifying them of the violations of MR. BAILEY’s rights and attempting to discuss a mutual
resolution to the lack of appropriate ADA accessible seating at the Superdome. This letter constituted a request for
“reasonable accommodation” or “reasonable modification” under the ADA and RA.”).
710

711

Shaywitz, 848 F.Supp.2d at 468.

712

Id.

713

Rec. Doc. 179-1 at 2.

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the requested modification is reasonable.”714 Plaintiff’s request for a reasonable modification must
consist of more than a statement that he is “unhappy with the manner in which” SMG and France
have failed to accommodate his complaint. Rather, the caselaw shows that Plaintiff must actually
suggest a specific modification that “would rectify the problem which he perceives.”715 Finding
none in the November pre-suit letter, the Court must conclude that Plaintiff failed to suggest a
modification and therefore did not meet his initial burden under Johnson.
ii.

Whether the “good faith interactive process” applies here

In his post trail briefing, Plaintiff analogizes to cases in which a disabled employee requests
an accommodation from his or her employer.716 In the employment context, “[w]hen a qualified
individual with a disability requests a reasonable accommodation, the employer and employee
should engage in flexible, interactive discussions to determine the appropriate accommodation.”717
The good faith interactive process is defined as “a meaningful dialogue with the employee to find
the best means of accommodating that disability.”718 “This obligation arises once an employer is
put on notice of an employee's need to be reasonably accommodated—which usually, but not
always, occurs after the employee requests an accommodation.”719
“The ADA provides a right to reasonable accommodation, not to the employee’s preferred

714

Johnson, 116 F.3d at 1059.

715

Id. at 1108.

716

Rec. Doc. 172 at 63–65.

717

E.E.O.C. v. Agro Distrib., 555 F.3d 462, 471 (5th Cir. 2009).

718

Chevron Phillips Chem. Co., 570 F.3d at 621 (quoting Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108
(1st Cir. 2005)).
719
Amedee v. Shell Chem. LP-Geismer Plant, 384 F.Supp.3d 613, 642–43 (M.D. La. 2019), aff'’ sub nom.
Amedee v. Shell Chem., L.P., 953 F.3d 831 (5th Cir. 2020).

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accommodation.”720 “The plaintiff bears the burden of proving that an available position exists
that he was qualified for and could, with reasonable accommodations, perform.” 721 “A disabled
employee has no right to a promotion, to choose what job to which he will be assigned, or to
receive the same compensation as he received previously.”722 “[W]hen an employer’s
unwillingness to engage in a good faith interactive process leads to a failure to reasonably
accommodate an employee, the employer violates the ADA.”723 However, “an employer cannot
be found to have violated the ADA when responsibility for the breakdown of the ‘informal,
interactive process' is traceable to the employee and not the employer.” 724 The precise “contours
of the interactive process must be determined on a case-by-case basis.”725
Plaintiff argues that Defendants were required to the engage in the “good faith interactive
process” described above, and that the failure to do so is a violation of the ADA.726 However, it is
unclear if this obligation to engage in a sufficient interactive process extends to situations outside
the employment context. Most cases in which a covered entity must engage in an informal
“interactive process” to determine whether it is practicable to accommodate a disability occur in
the employee-employer relationship. A law review article providing an overview of the reasonable

720

Id.

721

Jenkins, 487 F.3d at 315.

722

Id. at 316.

723

Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999).

724

Id.

725

Picard v. St. Tammany Parish Hosp., 611 F.Supp.2d 608, 621 (E.D. La. 2009).

Rec. Doc. 172 at 64 (“Upon receipt of Mr. Bailey’s request for reasonable modification, Defendants were
required to engage in the interactive process so that together they could determine what reasonable accommodations
might be available. The documentary evidence introduced at trial shows that, despite receipt of a request for reasonable
accommodation, Defendants did not engage in a good faith, interactive dialogue, ultimately necessitating the instant
ligation.”).
726

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accommodation provides:
The ‘interactive process’ is a mechanism employers and employees use to
determine whether there is an accommodation that will allow a particular disabled
individual to perform the essential functions of a particular job. It may be useful to
think of the interactive process as a dialogue with an employee about a specific
issue-what he or she needs to perform the essential functions of a particular job and
whether the employer can or will provide it.727
Plaintiff provides no argument as to why this Court should extend this obligation from the
employment context to the situation between Plaintiff on the one hand and France and SMG on
the other. Additionally, while there are some instances for which an entity’s refusal to engage in
an interactive process would bolster a claim of liability “the ADA imposes liability for, inter alia,
discriminatory refusal to undertake a feasible accommodation, not mere refusal to explore possible
accommodations where, in the end, no accommodation was possible.”728 “Thus, a failure to engage
in the interactive process is only actionable if, among other things, a good faith effort to assist the
disabled could have resulted in a reasonable accommodation.”729
Even if that obligation existed in this case, there is some evidence to suggest that
Defendants engaged in such a “good faith interactive process.” The good faith interactive process
is defined as “‘a meaningful dialogue with the employee to find the best means of accommodating
that disability.’”730 Here, Plaintiff was put in touch with Kevin McGuire, an ADA consultant who

727

Grant T. Collins & Penelope J. Phillips, Overview of Reasonable Accommodation and the Shifting
Emphasis from Who Is Disabled to Who Can Work, 34 HAMLINE L. REV. 469, 482 (2011).
728

McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 99 (2d Cir. 2009) (internal citation omitted).

729

Killoran on behalf of A.K. v. Westhampton Beach Sch. Dist., No. 18-CV-3389 (JS)(SIL), 2020 WL
1325572, at *7 (E.D.N.Y. Feb. 12, 2020), report and recommendation adopted sub nom. Killoran v. Westhampton
Beach Sch. Dist., No. 2:18-CV-03389, 2020 WL 1433647 (E.D.N.Y. Mar. 11, 2020).
730

Chevron Phillips Chem. Co., 570 F.3d at 621 (quoting Tobin, 433 F.3d at 108).

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has worked with the Board and SMG.731 Mr. McGuire “explained every option that we had at our
disposal” in attempting to accommodate Plaintiff.732 Mr. McGuire discussed with Plaintiff his
different seating options, eventually moved him to four different seating locations, and followed
up with Plaintiff to ask if those seats rectified Plaintiff’s grievances.733
While Plaintiff was never satisfied with these seats, that does not necessarily mean that
Defendants violated the reasonable accommodation standard nor any obligation to engage in an
interactive process. The ADA does not require that a disabled person be provided with every
accommodation he requests. In the employment context, “[a] disabled employee has no right to a
promotion, to choose what job to which he will be assigned, or to receive the same compensation
as he received previously.”734 Therefore, even if Defendants were obligated to engage in a “good
faith interactive process” the Court finds that they participated in “a meaningful dialogue with
[Plaintiff] to find the best means of accommodating that disability.”735
IV.

Conclusion

For the reasons stated above, this Court finds that Plaintiff Shelby Bailey has failed to carry
his burden of proving that Defendants SMG and Kyle France, in his official capacity, violated the
Americans with Disabilities Act and/or the Rehabilitation Act. The Court is mindful that this result
leaves Plaintiff with “limited seating choices . . . in less than ideal locations.”736 However, the

731

Trial Transcript, March 2, 2020, Thomas Russell Bailey, pp. 200–202; Trial Transcript, March 2, 2020,
Kevin McGuire, pp. 178–79.
732

Trial Transcript, March 2, 2020, Kevin McGuire, p. 183.

733

Trial Transcript, March 2, 2020, Kevin McGuire, pp. 186–87.

734

Id. at 316.

735

Chevron Phillips Chem. Co., 570 F.3d at 621 (quoting Tobin, 433 F.3d at 108).

736

Landis, 2019 WL 7157165 at *25.

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dictates of the ADA do not require otherwise. Thus, the Court’s decision is compelled by the
preceding findings of fact and conclusions of law, in particular, the structural limitations of the
stadium’s design, existing ADA regulations and guidelines, and case law.737
Accordingly,
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of
Defendants SMG and Kyle France, in his official capacity, and against Plaintiff, Shelby Bailey,
dismissing Plaintiff’s claims with prejudice.
NEW ORLEANS, LOUISIANA, this 4th day of September, 2020.
___

____________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

737

See id.

131