Hintz et al v. May and Company, Inc.
Filing
26
Memorandum Opinion and ORDER denying 17 Motion for Partial Summary Judgment. Signed by District Judge Halil S. Ozerden on 6/18/2018. (JD)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MICHAEL HINTZ and JARVIS
JERNIGAN, JR.
v.
PLAINTIFFS
Civil No. 3:17cv459-HSO-JCG
MAY AND COMPANY, INC. d/b/a
VETERANS CAB TAXI SERVICES
DEFENDANT
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION
[17] FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT is the Motion [17] for Partial Summary Judgment
filed by Plaintiffs Michael Hintz and Jarvis Jernigan, Jr.
Plaintiffs are two friends
who have both been diagnosed with multiple sclerosis (“MS”). On three separate
instances, Plaintiffs sought to use the wheelchair accessible services of Defendant
May and Company, Inc., doing business as Veterans Cab Taxi Services (“Veterans
Cab”).
Plaintiffs allege that Veterans Cab denied them the full and equal
enjoyment of its services and failed to make reasonable modifications to their
policies and practices to accommodate Plaintiffs, in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and Mississippi’s deceptive
advertising law, section 97-23-3 of the Mississippi Code.
Plaintiffs now move for partial summary judgment on their ADA claims and
the merits of their claim for deceptive advertising, reserving for trial the amount of
damages on the second claim. The Motion has been fully briefed.
Based upon its
review of the record and relevant legal authority, the Court finds that Plaintiffs’
Motion should be denied.
I. BACKGROUND
A.
Factual Background
1.
The Parties
Plaintiff Michael Hintz was diagnosed with MS in February 2003.
Aff. [17-1] ¶ 3.
Hintz
Hintz attests that he is substantially impaired in several major life
activities such as walking and standing, id., and thus relies on a wheelchair for
mobility, id.
Plaintiff Jarvis Jernigan, Jr., is friends with Hintz. Id.
met through the National MS Society. Id.
The two
Jernigan was diagnosed with MS in
February 1996, Jernigan Aff. [17-2] ¶ 3, and like Hintz, he suffers from substantial
impairment in activities including walking and standing, id. Jernigan relies on a
powered wheelchair or scooter for mobility. Id.
Hintz and Jernigan do not drive,
but rely on public and private transportation services, and sometimes obtain
transportation from friends or family. Id. ¶ 6; Hintz Aff. [17-1] ¶ 5.
Veterans Cab is a small business operating in Jackson, Mississippi, that
offers taxi services for both impaired and unimpaired individuals.
¶ 3.
Mayo Aff. [22-1]
Veterans Cab has a fleet of five vehicles, Mayo Aff. [22-1] ¶ 3, one of which is
a wheelchair accessible van. Id.
The drivers for Veterans Cab are independent
contractors who each set their own schedule and decide when and if they are able to
respond to a call.
Id. Veterans Cab contracts with four drivers, Def.’s Resp. to
Pls.’ First Set of Interrogs. [17-3] at 2, and currently has two drivers who are
trained to operate the wheelchair accessible van, Def.’s Mem. [23] at 1.
2
Veterans Cab attests that although the business is open 24 hours a day, there
are times when service is not available, or when there may be a delay in pick up,
whether the customer is impaired or not. Mayo Aff. [22-1] ¶ 3. Veterans Cab
further asserts that it does not have the capacity to have a cab ready to pick up a
customer at a moment’s notice. Id. ¶ 8. Because Veterans Cab is not a contracted
provider for pick up services at the Jackson Airport, it only services the Jackson
Airport by appointment.
Id. ¶ 6.
Because a driver must request and pay for a
badge in order to pick up from the Jackson Airport, id. ¶ 4, not every driver obtains
one due to the expense involved, id.
2.
March 11, 2016 Incident Involving Jernigan
Jernigan alleges that on or about March 11, 2016, he called Veterans Cab to
place a reservation for an accessible taxi to drive him to the Jackson Airport in the
early morning of March 14, 2016.
Jernigan Aff. [17-2] ¶ 8.
Jernigan states that
he had seen Veterans Cab’s advertisement that it offered 24-hour accessible
transportation services, id., and alleges that a Veterans Cab dispatcher informed
him that it had only one wheelchair accessible vehicle, only one driver for that
vehicle, and that the driver was not available in the early morning of March 14,
2016, to take Jernigan to the airport, id. ¶ 9.
Veterans Cab attests that at the time
of this March 11, 2016 call, the wheelchair van was not available to anyone,
whether impaired or unimpaired, at that time of the morning for a trip to the
Jackson Airport.
Mayo Aff. [22-1] ¶ 5.
3
3.
January 15, 2017 Incident Involving Both Plaintiffs
In January 2017, Hintz and Jernigan traveled out of state and returned to
Jackson on January 15, 2017, arriving at the Jackson Airport at approximately 3:30
p.m.
Jernigan Aff. [17-2] ¶ 11.
none were wheelchair accessible.
Jernigan saw several taxis at the airport, but
Id.
Jernigan alleges that an airport
administrator called Veterans Cab at approximately 4:35 p.m. to reserve an
accessible taxi for Hintz and Jernigan, id., but that he was told that the Veterans
Cab accessible taxi would not arrive at the airport until at least 5:30 p.m., id.
At
around 5:45 p.m., Plaintiffs learned that the Veterans Cab accessible taxi could not
arrive at the airport until 6:30 p.m. Id. Plaintiffs then made alternative
arrangements for transportation. Id.
Veterans Cab attests that during this call, all of its cabs were busy on other
routes, Mayo Aff. [22-1] ¶ 6, and that once a driver was able to finish the other calls,
a driver would have been able to pick up Plaintiffs from the Jackson Airport, id.
According to Veterans Cab, this would have been the same situation had an
unimpaired individual called for service at that time, but Plaintiffs did not want to
wait. Id.
4.
May 14, 2017 Incident Involving Hintz
On May 14, 2017, Hintz called Veterans Cab at approximately 5:30 p.m. to
request an accessible taxi to drive him home from the hospital. Hintz Aff. [17-1] ¶
8.
Hintz alleges that he was initially told by the dispatcher that a driver was not
available for the accessible taxi, though the dispatcher called him back a few
4
minutes later to advise that it would be at least 30 minutes before the accessible
taxi could pick him up. Id.
Hintz believed that such wait time was unreasonable,
and made alternative transportation arrangements. Id.
Veterans Cab contends that during the May 14, 2017 call, all cabs were busy
on other routes, Mayo Aff. [22-1] ¶ 7, and that once a driver was able to finish the
other calls, a driver could have picked up Hintz from the hospital, id.
Veterans
Cab maintains that this would have been the same situation had an unimpaired
individual called for service at that time. Id.
B.
Procedural History
On June 7, 2017, Plaintiffs filed a Complaint [1] in this Court against
Veterans Cab, asserting that based upon the incidents of January 15, 2017, and
May 14, 2017, Veterans Cab violated the ADA because Plaintiffs were denied the
full and equal enjoyment of Veterans Cab’s transportation services.
5-6.
Compl. [1] at
Plaintiffs allege that Veterans Cab treated Plaintiffs differently than other
individuals in its response times and hours and days of service, id. at 7, and that
Veterans Cab violated the ADA by failing to make reasonable modifications in its
procedures to afford services to individuals with disabilities, such as failing to
employ an adequate number of drivers capable of driving the van during all hours of
operation, id. at 6-7.
Count II of the Complaint advances a claim for violation of Mississippi’s
deceptive advertising law, section 97-23-3 of the Mississippi Code.
9.
Compl. [1] at 8-
The Complaint alleges that when Jernigan called Veterans Cab on March 11,
5
2016, to reserve an accessible van, he did so in reliance on the company’s
representations on its website regarding the availability of its accessible taxi
services. Id. at 8-9.
The Complaint seeks an injunction declaring that Veterans Cab is violating
the ADA and ordering Veterans Cab to modify its policies and procedures to bring
them within compliance of the ADA. Id. at 9-10.
Plaintiffs also pray for
attorneys’ fees and damages on behalf of Jernigan for Veterans Cab’s deceptive
advertising practices.
Id. at 10.
On March 22, 2018, Plaintiffs filed a Motion [17] for Partial Summary
Judgment1 that Veterans Cab is in violation of the ADA by denying wheelchair
users the full and equal enjoyment of its public transportation services. Mot. [17]
at 1; Pls.’ Mem. [18] at 17-18.
Plaintiffs contend that on March 11, 2016, Jernigan
was denied service on the basis of his disability when service would have been
provided to an able-bodied customer.2
Pls.’ Mem. [18] at 17.
Plaintiffs further
argue that they were offered a disparate level of service on January 15, 2017, and
May 14, 2017, by having to endure longer and unreasonable wait times for service.
Id. at 17-18.
Plaintiffs also request summary judgment that Veterans Cab is in
violation of the ADA by failing to make reasonable modifications to its procedures in
such a way as to ensure that its accessible van is in service during all hours of
1
Plaintiffs had also moved for summary judgment that Veterans Cab violated Mississippi’s deceptive advertising
statute based upon its failure to provide 24-hour wheelchair accessible service as advertised. After Veterans Cab
filed its Response, Plaintiffs conceded that Veterans Cab had raised a genuine issue of material fact on this claim,
precluding summary judgment. Rebuttal [25] at 6. Therefore, the Court need not address this issue.
2
While Plaintiffs assert in their Motion for Partial Summary Judgment that this March 11, 2016 incident constitutes
an ADA violation, Plaintiffs’ Complaint did not allege this incident as an ADA violation, and only asserted that this
incident constituted a violation of Mississippi’s deceptive advertising law. Compl. [1] at 4-9.
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operation, and by failing to train an adequate number of drivers to operate the
wheelchair accessible van. Id. at 20.
Veterans Cab responds that it has not committed unlawful discrimination
under the ADA because it did not deny services to Plaintiffs based on their
impairments , Def.’s Mem. [23] at 13, but rather, during these incidents, no driver
was available and Veterans Cab does not have the capability to pick up a customer
at a moment’s notice, id. at 14. With regard to Plaintiffs’ argument that Veterans
Cab has failed to make reasonable modifications to its policies and practices,
Veterans Cab contends that Plaintiffs’ requested modifications would
fundamentally alter the nature of its services and would put the company out of
business. Id. at 15-16.
II. DISCUSSION
A.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(a).
If the movant carries this burden, “the
nonmovant must go beyond the pleadings and designate specific facts showing that
there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
7
Cir. 2000).
“A genuine dispute of material fact means that evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R
Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted).
If the
evidence is merely colorable, or is not significantly probative, summary judgment is
appropriate.
Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671
F.3d 512, 516 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)).
In deciding whether summary judgment is appropriate, the Court
views facts and inferences in the light most favorable to the nonmoving party.
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010).
B.
Analysis
1.
The ADA
Title III of the ADA prohibits discrimination against the disabled in the full
and equal enjoyment of public accommodations, 42 U.S.C. § 12182(a), including in
the realm of public transportation services supplied by a private entity, id. §
12184(a).
Though Plaintiffs’ ADA claims in this case are brought solely under the
latter provision of the statute, case law interpreting public accommodations claims
offers helpful guidance in analyzing Plaintiffs’ public transportation services claims
because the wording of the public accommodations provision of Title III closely
resembles that of the public transportation provision. Compare 42 U.S.C. §
12182(a) (prohibiting discrimination “in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of any place of public
accommodation”) with id. § 12184(a) (prohibiting discrimination “in the full and
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equal enjoyment of specified public transportation services”). And “similar
language in similar statutes should be interpreted similarly.” BNSF Ry. Co. v.
United States, 775 F.3d 743, 756 (5th Cir. 2015) (citations omitted).
“Disability” under the ADA can include “a physical or mental impairment
that substantially limits one or more major life activities,” 42 U.S.C. § 12102(1)(A),
including walking and standing, id. § 12102(2)(A). Both Plaintiffs attest that they
have been diagnosed with MS, are substantially impaired in several major life
activities such as walking and standing, and rely on a wheelchair or scooter for
mobility.
Hintz Aff. [17-1] ¶ 3; Jernigan Aff. [17-2] ¶ 3.
Veterans Cab does not
dispute that both Plaintiffs have disabilities that fall under the ADA’s protections.
Def.’s Mem. [23] at 9.
Veterans Cab also does not dispute that it is subject to 42
U.S.C. § 12184(a), which covers “specified transportation services provided by a
private entity that is primarily engaged in the business of transporting people and
whose operations affect commerce,” as Veterans Cab is a private entity providing
transportation in the Jackson metropolitan area.
2.
Def.’s Mem. [23] at 12.
Plaintiffs Have Standing to Pursue This Case
As a threshold issue, Plaintiffs assert that they have standing to pursue their
ADA claims.
Pls.’ Mem. [18] at 11.
To have standing under Article III of the
United States Constitution, a “plaintiff must have (1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.” Deutsch v. Travis Cty. Shoe
Hosp., Inc., 721 F. App’x 336, 339 (5th Cir. 2018) (quoting Spokeo, Inc. v. Robins,
9
136 S. Ct. 1540, 1547 (2016)). “To establish injury in fact, a plaintiff must show
that he or she suffered an invasion of a legally protected interest that is concrete
and particularized and actual or imminent, not conjectural or hypothetical.” Id. at
340 (quoting Spokeo, 136 S. Ct. at 1548).
Title III of the ADA limits a plaintiff “to injunctive relief, and a restraining or
other similar order.” Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 312 (5th
Cir. 1997) (citing 42 U.S.C. § 12188). “Standing for injunctive relief requires a
threat of present or future harm to the plaintiff.” Deutsch, 721 F. App’x at 340
(citation and quotation marks omitted). Mere “some day intentions – without any
description of concrete plans, or indeed even any specification of when the some day
will be – do not support a finding of the actual or imminent injury.” Id. (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)).
Here, Plaintiffs have alleged that Veterans Cab has violated the ADA and
that Veterans Cab will not make Plaintiffs’ requested modifications.
Hintz attests
that he lives in Jackson, does not drive, and intends to attempt use Veterans Cab’s
services in the future “to run errands, attend community meetings, reach medical
appointments, access medical services, engage in recreational activities, and to
participate in civic engagements.”
Hintz Aff. [17-1] ¶ 11.
Jernigan alleges that
although he lives in Memphis, Tennessee, he intends to regularly return to Jackson
“several times per year in order to visit family and friends, to maintain business
relationships, and to continue [his] advocacy work.” Jernigan Aff. [17-2] ¶ 14.
Specifically, Jernigan states that he will return to Jackson at least once per month
10
for follow-up health care. Id. ¶ 4.
He further intends to use Veterans Cab’s
services “to run errands, attend community and business meetings, reach medical
appointments, access medical services, and engage in recreational activities.” Id. ¶
15.
Veterans Cab argues that Plaintiffs do not have standing because it did not
discriminate against them and Plaintiffs’ requested modifications are unreasonable.
Def.’s Mem. [23] at 10-12.
These arguments, however, go to the merits of Plaintiffs’
claims, not their standing to pursue them. Plaintiffs’ allegations demonstrate that
they have standing to pursue this case.
3.
Plaintiffs’ Claim under the ADA for Violation of Full and Equal
Enjoyment of Transportation Services
42 U.S.C. § 12184 states, in relevant part:
(a) General rule
No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of specified public
transportation services provided by a private entity that is primarily
engaged in the business of transporting people and whose operations
affect commerce.
(b) Construction
For purposes of subsection (a) of this section, discrimination
includes–
....
(2) the failure of such entity to–
(A) make reasonable modifications consistent with those
required under section 12182(b)(2)(A)(ii) of this title[.]
42 U.S.C. § 12184.
Plaintiffs claim that Veterans Cab has violated 42 U.S.C. § 12184(a).
Plaintiffs argue that during the March 11, 2016 incident, Jernigan was denied “the
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full and equal enjoyment of” Veterans Cab’s services because “service would have
been provided to an able-bodied customer under otherwise identical circumstances.”
Pls.’ Mem. [18] at 17 (emphasis added).
Plaintiffs also contend that during the
January 15, 2017 and May 14, 2017 incidents, Veterans Cab denied them the full
and equal enjoyment of its services by offering a disparate level of service. Id. at
17-18.
In analyzing the Title III public accommodations statute, the Fifth Circuit
has opined that the statute’s prohibition on discrimination against an individual “in
the full and equal enjoyment of the goods and services” means owners are
prohibited from “denying the disabled access to, or interfering with their enjoyment
of, the goods and services of a place of public accommodation.” McNeil v. Time Ins.
Co., 205 F.3d 179, 186 (5th Cir. 2000).
However, the court found that a strained
construction of “full and equal enjoyment” would mean “that the disabled must be
able to enjoy every good and service offered to the same and identical extent as
those who are not disabled.”
Id. at 187. The Fifth Circuit rejected such a reading
because it is “plainly unrealistic,” “surely unintended,” and “makes an unattainable
demand.” Id.
The court acknowledged that “in many, if not most, cases, the
disabled simply will not have the capacity or ability to enjoy the goods and services
of an establishment ‘fully’ and ‘equally’ compared to the non-disabled.” Id.
The court’s rejection of this construction of discrimination against an
individual “in the full and equal enjoyment” of services comports with the structure
of 42 U.S.C. § 12184.
While § 12184(a) sets forth the general rule, Congress
12
included subsection (b) to advance the construction of subsection (a).
Thus,
discrimination for purposes of § 12184(a) includes the failure to “make reasonable
modifications” to an entity’s policies, procedures, and practices.
12184(b)(2)(A) (emphasis added).
Id. §
The statute only requires reasonable
modifications and does not require entities to “make any and all possible
accommodations that would provide full and equal access to disabled patrons.”
Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012).
In other
words, an entity is not required to provide full and equal access if doing so would
require an unreasonable modification to the entity’s policies, practices, and
procedures.
To construe 42 U.S.C. § 12184(a) as Plaintiffs suggest, that is to require in all
circumstances the identical enjoyment of transportation services, would render
meaningless the statute’s limitation of modifications to those that are “reasonable.”
An entity attempting to comply with such an interpretation would be bound to
make any modifications – reasonable or not – necessary to provide identical
enjoyment of services.
This would fail to give effect to the statute’s limitation to
reasonable modifications. Cf. Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S.
147, 152 (1883) (“It is the duty of the court to give effect, if possible, to every clause
and word of a statute, avoiding, if it may be, any construction which implies that
the legislature was ignorant of the meaning of the language it employed.”).
Within the context of this authority, Plaintiffs have not shown the lack of a
genuine dispute of material fact that Veterans Cab violated 42 U.S.C. § 12184(a).
13
According to Veterans Cab, when Plaintiffs called for service on January 15, 2017,
and when Hintz called for service on May 14, 2017, all cabs were busy on other
routes, and a driver would have been available once a driver finished the other
calls.
Mayo Aff. [22-1] ¶¶ 6-7. Veterans Cab attests that this “would have been
the same situation had an unimpaired individual called for service at that time.”
Id. (emphasis added).
Assuming the truth of these assertions, as the Court must
for purposes of this Motion because Veterans Cab is the nonmoving party, Plaintiffs
have not shown as a factual matter that Veterans Cab failed to provide Plaintiffs
the full and equal enjoyment of its transportation services.3
Indeed, Plaintiffs
acknowledge in their Rebuttal that Veterans Cab has raised “issues of material fact
as to the reasons underlying the 2017 unreasonable wait times.”
Rebuttal [25] at 5
n.8.
While it appears undisputed that the wheelchair accessible van was not
available to Jernigan for the early morning of March 14, 2016, when he called on
March 11, 2016, to place a reservation, Plaintiffs have not shown beyond dispute
that this single incident of unavailability at a requested time rises to the level of an
ADA violation.
4.
Summary judgment on this claim would not be appropriate.
Plaintiffs’ Claim for Failure to Make Reasonable Modifications
42 U.S.C. § 12184(b)(2)(A) provides that discrimination under the ADA
includes the failure of a private transportation entity to “make reasonable
3
Moreover, a district court has held that “[t]he inconvenience of waiting for a taxi does not adequately plead a
violation of the ADA.” Poldberg v. 5 Star Flash, Inc., No. 11 C 3194, 2011 WL 6097990, at *3 (N.D. Ill. Dec. 1,
2011).
14
modifications consistent with those required under section 12182(b)(2)(A)(ii).”
42
U.S.C. § 12182(b)(2)(A)(ii), in turn, states that discrimination includes:
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[.]
42 U.S.C. § 12182(b)(2)(A)(ii).
Under a Title III reasonable modifications claim, “[t]he 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.” Johnson v. Gambrinus Co./Spoetzl Brewery, 116
F.3d 1052, 1059 (5th Cir. 1997).
If a plaintiff carries this burden, the defendant must make the requested
modification unless the defendant demonstrates that the requested modification
would “fundamentally alter the nature of the public accommodation.” Id. (footnote
omitted). To establish this defense, the defendant must put forth evidence that
“focuses on the specifics of the plaintiff’s or defendant’s circumstances and not on
the general nature of the accommodation.”
Id. at 1059-60.
“[T]he determination
of what constitutes a reasonable modification or accommodation is a fact-intensive
question ill-suited for resolution at the summary judgment stage.” Powers v. MJB
Acquisition Corp., 993 F. Supp. 861, 868 (D. Wyo. 1998).
15
Plaintiffs argue that Veterans Cab violated the ADA by failing “to modify its
policies and procedures in such a way as to ensure that its accessible taxi is in
service during all hours of operation.”
Pls.’ Mem. [18] at 20. As part of this
modification, Plaintiffs request that Veterans Cab train all of its drivers to be able
to operate the wheelchair accessible van. Plaintiffs take the position that while
Veterans Cab has four drivers, two of whom are trained to operate its wheelchair
accessible van, ADA compliance requires Veterans Cab to ensure all of its drivers
are trained in the operation of its wheelchair accessible van.
Rebuttal [25] at 2.
In support of this position, Plaintiffs rely on ADA regulation 49 C.F.R. §
37.173, which requires a private entity operating a demand responsive system to
ensure that personnel are trained to proficiency, as appropriate to their
duties, so that they operate vehicles and equipment safely and properly
assist and treat individuals with disabilities who use the service in a
respectful and courteous way, with appropriate attention to the
difference among individuals with disabilities.
49 C.F.R. § 37.173.
This regulation is limited to ensuring that training is conducted “as
appropriate” to the personnel’s duties, and Plaintiffs have not shown beyond dispute
why it is appropriate to mandate that all drivers for a small company be required to
operate a wheelchair accessible van.
More broadly, Plaintiffs have not carried their burden of showing the absence
of a genuine dispute of fact that requiring all of a company’s taxi drivers to be
trained in operating wheelchair accessible vans “is reasonable in the general sense,
that is, reasonable in the run of cases.”
Johnson, 116 F.3d at 1059.
16
Whether the
requested modification would be reasonable given that, in regards to a similar issue,
the ADA regulations state that “[a] provider of taxi service is not required to
purchase vehicles other than automobiles in order to have a number of accessible
vehicles in its fleet,” highlights the factual nature of the inquiry.
49 C.F.R. §
37.29(b); see also Toomer v. City Cab, 443 F.3d 1191, 1195 (10th Cir. 2006) (“The
ADA does not mandate that all private transportation entities provide accessible
vehicles – a taxi fleet consisting entirely of non-accessible vehicles would be in
accord with the ADA.”).
Plaintiffs also contend that Veterans Cab has failed to comply with another
ADA regulation, 49 C.F.R. § 37.103(c), which provides:
If the entity operates a demand responsive system, and purchases or
leases a new vehicle other than an automobile, a van with a seating
capacity of less than eight persons (including the driver), it shall ensure
that the vehicle is readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs, unless the
system, when viewed in its entirety, meets the standard for equivalent
service of § 37.105 of this part.
49 C.F.R. § 37.103(c).
Plaintiffs have not shown beyond dispute that Veterans Cab purchased or
leased a vehicle other than an automobile or van seating less than eight persons,
and therefore, it is not clear whether this provision even applies to Veterans Cab.
Furthermore, it is not clear that “readily accessible,” as that term is employed,
demands being available for use during all hours of operation.
“Accessible means,
with respect to vehicles and facilities, complying with the accessibility requirements
of parts 37 and 38 of this title.”
49 C.F.R. § 37.3. According to 49 C.F.R. § 37.7, a
17
vehicle is generally considered to be “readily accessible” if it meets the standards set
forth in 49 C.F.R. § 38.23, which is titled, “Mobility aid accessibility,” and sets out
the accessible requirements for vans.
49 C.F.R. § 38.23 outlines the specifications
for the vans’ lift, ramp, and securement devices, but does not address the hours of
service or availability of such a vehicle. Summary judgment should be denied on
this point.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiffs’
Motion [17] for Partial Summary Judgment is DENIED.
SO ORDERED AND ADJUDGED, this the 18th day of June, 2018.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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