Steelman v. City of Salem

Filing 44

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that, in accordance with the foregoing, Defendants Motion for Summary Judgment (Doc. No. 37) is GRANTED in part and DENIED in part. IT IS SO ORDERED. 37 Signed by District Judge Jean C. Hamilton on 4/4/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CONNIE STEELMAN, Individually,
Plaintiff,
vs.
CITY OF SALEM, A Municipality and
Political Subdivision of the State of
Missouri,
Defendant.

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Case No. 4:12-cv-00191

MEMORANDUM AND ORDER
Plaintiff Connie Steelman (“Plaintiff”) instituted this action, seeking declaratory and
injunction relief under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131,
et seq., against Defendant City of Salem (“Defendant”) on February 3, 2012. (Doc. No. 1.) Plaintiff
alleges that the Salem Police Department building (“SPD Building”) located at 500 North Jackson
Street in Salem, Missouri is not ADA-compliant and that, accordingly, as a half-year resident of
Salem who is bound to ambulate in a wheelchair, Plaintiff has suffered and will continue to suffer
unlawful discrimination, caused by Defendant, on the basis of her disability. Discovery is complete,
and the matter is set for trial. Defendant moves for summary judgment as to Plaintiff’s claims.
(Doc. No. 37.) For the reasons discussed below, the motion will be granted in part and denied in
part.
BACKGROUND
Plaintiff is a Florida resident who resides in Salem, Missouri for approximately six months
each year. (Doc. No. 1 ¶ 2.) She is bound to ambulate in a wheelchair. (Id.) Plaintiff has visited
the SPD Building and plans to return to the property both to avail herself of the public goods and

services offered there, as well as to determine whether the SPD Building is ADA-compliant. (Id.
¶ 5.) Plaintiff contends that multiple barriers to her accessing the SPD Building, as a wheelchairbound individual, will prevent her from enjoying the goods and services otherwise offered to the
public at the SPD Building. (Id. ¶ 6.)
The SPD Building was constructed in or around 1928 and acquired by Defendant in 1988.
(Doc. No. 38 at 2.) There have been no significant renovations to the building since it was acquired
by Defendant. (Id.) Only portions of the building are accessible to the public; specifically, a single
room. (Id.) All other portions of the building are security-restricted. (Id.)
Plaintiff alleges that the SPD Building is not ADA-compliant in that: (1) the SPD Building
lacks an accessibility route from public transportation stops, public streets, and sidewalks in violation
of the ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”); (2) the SPD Building
lacks an accessibility route from parking spaces in violation of the ADAAG; (3) step-grade changes
in level from the asphalt to the existing entrance of the SPD Building exceed what is permitted under
the ADAAG; (4) the entrance ramp to the SPD Building has a slope in excess of what is permitted
under the ADAAG and is otherwise not designed in compliance with the ADAAG; (5) doors at the
SPD Building are not automatic or power-assisted and have inadequate maneuvering space in
violation of the ADAAG; (6) Defendant has not made reasonable modifications to its policies,
practices, or procedures as necessary to afford goods, services, facilities, privileges, and advantages
to the disabled; and (7) restrooms at the SPD Building lack the use elements required under the
ADAAG. (Doc. No. 1 ¶ 10.)
Defendant does not believe that the SPD Building is in any way not ADA-compliant. (Doc.
No. 38 at 7-8.) According to Defendant, to the extent there may be potential ADA violations at the
SPD Building premises, there are only three (as opposed to the seven alleged by Plaintiff).

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Specifically, according to Defendant, it may be true that: (1) a handrail needs to be installed on the
building side of the existing entrance ramp; (2) the front-door entrance needs to be widened; and (3)
no handicap parking is available. (Doc. No. 38-5 at 2.) Defendant rests this contention on a visit
to the premises by its proffered expert, “Accessibility Specialist” Herman Vance, who is employed
by the Disabled Citizens Alliance for Independence, a community-based independent living center
serving the Missouri counties of Crawford, Dent, Iron, Reynolds, and Washington. (See Doc. No.
38-5; see also http://www.dcai.us (Disabled Citizens Alliance for Independence website).)
Defendant does not indicate what if any steps it has taken to remedy the barriers alleged by Plaintiff
but not corroborated by Mr. Vance.1 As for the three potential ADA violations reported by Mr.
Vance, Defendant: (1) “will be installing” a handrail on the building side of the entrance ramp; (2)
is “planning to replace the door” and “accepting bids for the work;” and (3) is “in discussions with
a third party” to provide handicap parking. (Doc Nos. 38 & 38-1.) According to Defendant, Plaintiff
has conceded that the only remaining possible violation at the SPD Building is the door. (Doc. No.
38-6.)
Plaintiff seeks injunctive relief with regard to Defendant’s alleged failures to comply with
the ADA, and to avert future discrimination, on the basis of her disability, by Defendant. (Doc. No.
1 ¶ 24-25.) Plaintiff asserts that such discrimination will occur if Defendant does not remedy the
barriers to access that she alleges. (Id.)
LEGAL STANDARD

1

Notably, Mr. Vance identifies two elements of non-compliance at the SPD Building not complained
of by Plaintiff—the absence of a handrail on the building side of the entrance ramp and the lack of
handicap parking. Thus, if both Plaintiff and Mr. Vance are correct, there are nine elements of noncompliance rather than the seven complained of by Plaintiff.
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A motion for summary judgment should be granted if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed. 202 (1986). Material facts
are those that might affect the outcome of the case under the governing law. Anderson, 477 U.S. at
248, 106 S.Ct. 2505. There is a genuine dispute about a material fact if there is sufficient evidence
for a reasonable jury to return a verdict in favor of the nonmoving party. Id. The moving party
bears the initial burden of informing the Court of the basis for its motion and of identifying those
portions of the record demonstrating the absence of a triable issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its
initial burden, the burden shifts to the nonmoving party to present specific facts showing there is a
genuine issue of material fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
In passing on a motion for summary judgment, the Court must view the facts in the light most
favorable to the nonmoving party and draw all reasonable inferences in its favor. Anderson, 477
U.S. at 255, 106 S.Ct. 2505. The Court’s function is not to weigh the evidence, but rather to
determine whether there is a genuine issue for trial. Id. at 249, 106 S.Ct. 2505.
DISCUSSION
Defendant believes that it is entitled to summary judgment on three grounds, contending that:
(1) Plaintiff lacks constitutional standing to bring a claim under Title II of the ADA; (2) Plaintiff
fails to state a claim under Title II of the ADA; and (3) Plaintiff’s claims are moot and therefore not
subject to injunctive relief. Defendant additionally asserts that Plaintiff is not entitled to attorneys’
fees as a matter of law. These arguments will be addressed in turn directly below.
I.

Plaintiff Has Article III Standing

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Title II of the ADA, captioned “Public Services,” states: “Subject to the provisions of this
subchapter, 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.” 42 U.S.C. § 12132. Title II of the ADA
provides for a private right of action allowing a plaintiff to seek both monetary damages and, as in
the instant case, injunctive relief. See Olmstead v. L.C. ex rel. Zimring, 587 U.S. 581, 590 n.4, 119
S.Ct. 2176, 144 L.Ed.2d 540 (1999) (discussing the remedial scheme under Title II of the ADA).
In order for a plaintiff to avail herself of the private right of action under Title II of the ADA,
she must have standing. Federal jurisdiction is limited by Article III, § 2, of the U.S. Constitution
to actual cases and controversies. Therefore, a plaintiff’s standing to sue “is the threshold question
in every federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422
U.S. 490, 502 (1975). As such, federal courts are required to examine standing sua sponte. See
United States v. Hays, 515 U.S. 737, 742 (1995).
“To establish Article III standing, an injury must be ‘concrete, particularized, and actual or
imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” Clapper
v. Amnesty Int’l USA, 133 S.Ct. 1138, 1147 (2013) (quoting Monsanto Co. v. Geertson Seed Farms,
130 S.Ct. 2743, 2752, 177 L.Ed.2d 461 (2010)). “It can scarcely be doubted that, for a plaintiff who
is injured or faces the threat of future injury due to illegal conduct ongoing at the time of suit, a
sanction that effectively abates that conduct and prevents its recurrence provides a form of redress.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185-86, 120 S.Ct. 693, 145
L.Ed.2d 610 (2000).
The party invoking federal jurisdiction bears the burden of establishing standing. Amnesty
Int’l, 133 S.Ct. at 1148-49. For purposes of Title II of the ADA, a plaintiff must have a plan to

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return to the allegedly non-compliant structure, with an intent to benefit from its services, programs,
or activities, which is “concrete and particularized” and not merely “conjectural or hypothetical.”
See Steger v. Franco, Inc., 228 F.3d 889, 892-93 (8th Cir. 2000).
In addition, and separately, under the ADA’s statutory scheme, “testers,” i.e., plaintiffs who
intend to test the ADA compliance of entities subject to the ADA’s requirements, have Article III
standing. See, e.g., Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004) (discussing
Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)) (holding
that qualified individuals with a disability who are testing an entity’s compliance with federal
disability discrimination statutes have standing to sue under Title II of the ADA); Smith v. Pac.
Props. & Dev. Corp., 358 F.3d 1097, 1103-04 (9th Cir. 2004) (relying on Havens Realty to conclude
that disabled testers who sue under § 3604(f)(2) of the Fair Housing Act and who have experienced
the “dignitary harm” of observing discriminatory conditions have standing); Kyles v. J.K. Guardian
Sec. Servs., Inc., 222 F.3d 289, 298 (7th Cir. 2000) (relying on Havens Realty to conclude that
employment discrimination testers who were discriminated against had standing to sue under Title
VII of the Civil Rights Act of 1964); see also Shaver v. Independent Stave Co., 350 F.3d 716, 723-25
(8th Cir. 2003) (relying on “the so-called ‘tester’ cases, where minority applicants apply for jobs or
housing that they have no intention of accepting for the sole purpose of determining whether the
employer or landlord is unlawfully discriminating” to conclude that terminated employee’s
harassment and retaliation claims under the ADA were actionable).2

2

In Havens Realty, the Supreme Court held that an African-American tester who was given
misinformation about the availability of a rental property had alleged sufficient injury in fact to
support standing to sue under the Fair Housing Act. 455 U.S. at 374, 102 S.Ct. 1114. The Havens
Realty tester never intended to rent the apartment. Id. at 373, 102 S.Ct. 1114. The tester’s sole
purpose was to determine whether the defendant engaged in unlawful practices. Id.
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Defendant asserts that Plaintiff lacks Article III standing because she has not pled that she
was denied services offered at the SPD Building and therefore has not pled an injury in fact. This
argument ignores the crux of Plaintiff’s Complaint, which is that, on the basis of her disability, she
is and will continue to be, under the status quo, deterred from and denied the opportunity to partake
of services otherwise available to the public at the SPD Building. In other words, because of her
disability, Plaintiff is unable to access Defendant’s services in a manner equal to that afforded other
individuals. And equal access to services, rather than express denial of services, is the benchmark
concern of Title II of the ADA.
For instance, in Randolph v. Rogers, 170 F.3d 850 (8th Cir. 1999), a hearing-impaired inmate
sued the Missouri Department of Corrections and certain prison officials for failing to provide him
with a sign language interpreter during disciplinary proceedings, in violation of, inter alia, Title II
of the ADA. “The Department of Corrections argue[d] strenuously that Randolph was not excluded
from prison services, programs, and activities,” and had, thus, failed to state a claim. Id. at 858
(emphasis added). The Eighth Circuit squarely rejected this argument, explaining:
It is true that Randolph could physically attend activities. However, the ADA …
require[s] that otherwise qualified individuals receive ‘meaningful access’ to
programs and activities. See Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir. 1988)
(quoting Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661
(1985)). The record does not contain credible evidence to support a finding that
Randolph enjoyed meaningful access to the prison’s internal disciplinary process,
even if he was capable of limited participation.
Id. (emphasis added).
Consistent with Randolph, Plaintiff is not required to plead denial of or exclusion from
services offered at the SPD Building; but, rather, she is required to plead, and has pled, denial of
“meaningful access” to services offered at the SPD Building. This is an injury in fact satisfying
Article III’s standing requirements. In addition, consistent with the Eight Circuit’s decision in

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Shaver and the cases cited above in connection therewith, Plaintiff’s pleaded intent to visit the SPD
Building to ensure ADA compliance provides a further and separate basis for Article III standing;
specifically, so-called “tester” standing.
II.

Plaintiff Has Stated a Claim Under Title II of the ADA
To establish a violation of Title II of the ADA, a plaintiff must demonstrate that: (1) she is

a qualified individual with a disability; (2) she was excluded from participation in or denied the
benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against
by the entity; and (3) that such exclusion, denial of benefits, or other discrimination, was by reason
of her disability. See Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998) (citing cases).
Relying on the standard set forth in Layton, Defendant contends that Plaintiff has failed to
state a claim under Title II of the ADA because she has failed to demonstrate that she was excluded
from participation in or denied the benefits offered at the SPD Building. Defendant’s argument fails
under Layton itself which, like Randolph, turns upon a defendant’s provision of access to services
pursuant to Title II of the ADA, rather than upon a defendant’s affirmative denial of services to the
disabled.
In Layton, the plaintiffs, who suffered from a range of mobility impairments, complained that
the defendant was in violation of Title II of the ADA because it had not made the second floor of a
county courthouse accessible to the mobility impaired. After a bench trial, the trial court found in
favor of the defendant, denying plaintiffs’ request for mandatory injunctive relief. The Eight Circuit
concluded this denial was an abuse of the trial court’s discretion and reversed. In the opinion of the
Eight Circuit, the plaintiffs:
succeeded on the merits of their claim, and they will suffer substantial irreparable
harm if the programs, services, and activities held in the Montgomery County
Courthouse are not made accessible as required under the statutes. Furthermore,
public interest strongly favors mandating accessibility. When these factors are
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balanced against the harm to the county of making its programs, services, and
activities accessible the balance tips heavily in favor of granting [plaintiffs] the relief
they request.
Id. at 858 (emphasis added).
Reading the Eighth Circuit’s opinion in Layton in full, and in light of the Eight Circuit’s
opinion in Randolph discussed above, Plaintiff states a claim under Title II of the ADA because she
pleads denial of meaningful access to the SPD Building. Contrary to Defendant’s assertion, Plaintiff
is not required to plead exclusion from participation in or denial of the benefits offered at the SPD
Building in order to state a claim under Title II of the ADA. See also, e.g., Loye v. County of
Dakota, 625 F.3d 494, 496 (8th Cir. 2010) (citing Randolph, 170 F.3d at 858) (“[W]e construe Title
II of the ADA as requiring that qualified persons with disabilities receive ‘meaningful access’ to a
public entity’s services, not merely ‘limited participation.’”); Ability Ctr. of Greater Toledo v. City
of Sandusky, 385 F.3d 901, 913 (6th Cir. 2004) (“Title II ... imposes on public entities the
requirement that they provide qualified disabled individuals with meaningful access to public
services ....”); Watson v. State of Utah, 103 F.3d 145 (Table), 1996 WL 705219, at *3 (10th Cir. Dec.
9, 1996) (“Title II of the ADA requires public entities to provide physical access to programs and
services offered as well as to ensure that such services and activities are readily accessible to and
usable by qualified individuals with disabilities.”).
III.

Plaintiff’s Claim for Injunctive Relief Is Not Moot
Defendant states that it has undertaken certain voluntary measures to achieve compliance

under the ADA, and that these voluntary measures render Plaintiff’s claim for injunctive relief moot.
In order for voluntary measures to render a claim for injunctive relief moot under Title II of the
ADA, it must be “absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Layton, 143 F.3d at 471 (quoting Comfort Lake Ass’n, Inc. v. Dresel

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Contracting, Inc., 138 F.3d 351, 355 (8th Cir. 1998) (citations omitted)). So long as there is a
reasonable expectation that the plaintiff could be subject to the same wrong again, at the hands of
the defendant, a claim for injunctive relief under Title II of the ADA is not moot. See id.; see also
Randolph, 170 F.3d at 856-57. A single element of outstanding, unlawful non-compliance is
sufficient to defeat a mootness argument, as recurrence of the injury complained of is possible, and
thus a live controversy remains. See, e.g., Arkansas Adapt v. Johnson, 149 F.3d 1186 (Table), 1998
WL 279356, at *1 (8th Cir. June 2, 1998) (“Although the appeal is ... largely moot, the alleged lack
of appropriately located handicapped-parking spaces presents a live controversy.”) (emphasis added).
Plaintiff alleges at least seven violations of the ADA at the SPD Building. Defendant asserts
that there are none, but acknowledges three potential ADA violations based on Mr. Vance’s review
of the SPD Building. Defendant contends, further, that Plaintiff has conceded there is only one
outstanding violation—the width of the SPD Building door. Defendant has not provided evidence
regarding efforts to remedy the barriers alleged by Plaintiff. Defendant has indicated, however, that
the barriers identified by Mr. Vance “will be” remedied, i.e., although the barriers exist now they will
not, according to Defendant, exist in the future.3

3

Defendant makes passing reference in its papers to 28 C.F.R. § 35.150(a), in a seeming effort to
minimize its obligations under the ADA. 28 C.F.R. § 35.150(a) creates an obligation for a public
entity to make reasonable modifications to ensure accessibility to a service, program, or activity. See
Assoc. for Disabled Americans, Inc. v. Florida Int’l Univ., 405 F.3d 954, 959 n.5 (11th Cir. 2005).
28 C.F.R. § 35.150(a)(3) provides “an affirmative defense that the requested accommodation of the
plaintiff’s disability would constitute an undue burden, requiring ‘a fundamental alteration in the
nature of a service, program, or activity or in undue financial or administrative burdens.’” Gorman
v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (quoting 28 C.F.R. § 35.150(a)(3)). Defendant provides
no evidence, however, in support of such an affirmative defense, making it unavailing, as “a public
entity [i.e., Defendant] has the burden of proving that compliance with § 35.150(a)” would result in
“undue financial and administrative burdens.” 28 C.F.R. § 35.150(a)(3); see also, e.g., Parker v.
Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000) (under 28 C.F.R § 35.150(a)(3) “the public
entity has the burden of proving that compliance would require a ‘fundamental alteration’ or ‘undue
burden’”).
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Even assuming for purposes of the present motion that (1) Mr. Vance is a qualified expert
under the Federal Rules of Evidence and per Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny4 and (2) Plaintiff has conceded
that there is only one outstanding violation,5 Defendant’s mootness argument fails because
Defendant is at present simply “planning to replace the door” and “accepting bids for the work.”
Under this Circuit’s precedent, and Defendant’s own legal authority, this alleged barrier must be
remedied in order to render this dispute moot. A mere intention to remedy the alleged barrier in the
future is not enough, as it leaves open the possibility of a reversal of course, escaping the Court’s
review. Accordingly, Plaintiff’s demand for injunctive relief is not moot.

3

Mr. Vance does not qualify as an expert witness simply because Defendant puts him forth as one.
“The Supreme Court in Daubert makes it plain that the trial court is to act as a gatekeeper in
screening [expert] testimony for relevance and reliability, that is, make an assessment whether the
reasoning and methodology underlying the testimony is … valid.” Peitzmeier v. Hennessy Indus.,
Inc., 97 F.3d 293, 296–297 (8th Cir. 1996) (citing Daubert, 509 U.S. at 591-93, 113 S.Ct. 2786).
Further, to the extent Mr. Vance’s opinion rests on his interpretation of the ADAAG (attached to his
correspondence with Defendant), any matter of law, e.g., proper interpretation of the ADAAG, is for
the Court to determine. See, e.g., In re Acceptance Ins. Cos. Sec. Litig., 423 F.3d 899, 905 (8th Cir.
2005) (“When … expert opinions are little more than legal conclusions, a district court should not
be held to have abused its discretion by excluding such statements.”); United States v. Scholl, 166
F.3d 964, 973 (9th Cir. 1999) (citations and quotations omitted) (noting that experts may not testify
about the law because the judge’s specialized legal knowledge is presumed to be sufficient); Specht
v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988) (“testimony on ultimate issues of law” by an expert
witness “is inadmissible because is it detrimental to the trial process”); Marx & Co. v. Diners’ Club,
Inc., 550 F.2d 505, 509-10 (2d Cir. 1977) (expert testimony consisting of legal conclusions is
inadmissible).
4

In support of its assertion that Defendant has conceded there is only one outstanding violation,
Defendant relies upon an email exchange between Defendant’s counsel and Plaintiff in which
Plaintiff writes: “With your expert being in a wheelchair for 16 plus years and finding 1 major issue
(door width entrance) of the multiple issues, is confirmed.” To this, Defendant’s counsel responds:
“If the only issue remaining in this case is the door and the door is replaced, the claims in your
lawsuit are moot. I would ask that you dismiss the lawsuit prior to us filing our motion for summary
judgment.” Plaintiff then replies: “As far as dismissing the case, I will NOT. I will be requesting
for all expenses to be paid by your defendant as well as damages, due to the allegations of
DISCRIMINATION, being of truth and confirmed by your expert report, thanks.” (Doc. No. 38-6.)
The Court does not read this exchange as a concession by Plaintiff that there is only one outstanding
violation.
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IV.

Plaintiff Is Not Entitled to Attorneys’ Fees
The ADA authorizes a court to award attorneys’ fees, litigation expenses, and costs to a

prevailing party. See 48 U.S.C. § 12205. The Supreme Court has concluded, however, that “[t]he
statutory policy of furthering the successful prosecution of meritorious [civil rights] claims is better
served by a rule that creates an incentive to retain [independent] counsel,” rather than a rule that
creates an incentive to represent one’s self. Kay v. Ehrler, 499 U.S. 432, 438, 111 S.Ct. 1435, 113
L.Ed.2d 486 (1991). In other words, the purpose of the fee-shifting provisions in the federal civil
rights laws is to assist civil rights plaintiffs seeking the representation of counsel, rather than to
reward those representing themselves. See id. at 436, 11 S.Ct. 1435 (attorneys’ fees “assume an
agency relationship” and the purpose of fee-shifting provisions granting attorney fees to litigants is
to “enable potential plaintiffs to obtain the assistance of competent counsel”). In light of Kay, and
federal court decisions in its wake that have consistently declined to apply the fee-shifting provisions
of the federal civil rights laws to pro se litigants, Plaintiff in the instant action, proceeding pro se,
is not entitled to attorneys’ fees under the ADA’s fee-shifting provision. See, e.g., Rhoads v.
F.D.I.C., 94 Fed. Appx. 187 (4th Cir. 2004) (Americans with Disabilities Act); Woodside v. School
Dist. of Philadelphia, 248 F.3d 129 (3d Cir. 2001) (Individuals with Disabilities Education Act);
Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir. 1999) (Equal Access to Justice Act); Hawkins v.
1115 Legal Service Care, 163 F.3d 684 (2d Cir. 1998) (Title VII); see also Davis v. Parratt, 608
F.2d 717, 718 (8th Cir. 1979) (cited with approval in Kay, 499 U.S. at 435 n.5, 111 S.Ct. 1435)
(purpose of fee-shifting provisions under federal civil rights laws “is not to compensate pro se
litigants, but to provide counsel fees to prevailing parties in order to give private citizens a
meaningful opportunity to vindicate their rights”).6
6

On the other side of the coin, attorneys’ fees are not to be awarded to a prevailing defendant under
the ADA “unless the defendant establishes that the plaintiff’s suit was totally unfounded, frivolous,
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CONCLUSION
IT IS HEREBY ORDERED that, in accordance with the foregoing, Defendant’s Motion
for Summary Judgment (Doc. No. 37) is GRANTED in part and DENIED in part.
IT IS SO ORDERED.

Dated this 4th day of April, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

or otherwise unreasonable or that the plaintiff continued the litigation after it clearly became so.”
Steelman v. Delano, 2012 WL 5616156, at *3 (E.D. Mo. Nov. 15, 2012) (citing Christiansburg
Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 422, 98 S.Ct. 694, 54
L.Ed.2d 648 (1978)) (denying defendant’s request for attorney’s fees against plaintiff in this action
after defendant prevailed at summary judgment stage).
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