Childress et al v. Fox Associates LLC

Filing 61

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs' Motion for Summary Judgment 34 is granted. IT IS FURTHER ORDERED that defendant's Motion for Summary Judgment 52 is denied. IT IS FURTHER ORDERED that within thirty (30) d ays of the date of this Order, defendant shall: - Provide open or closed captioning at all performances of theatrical productions at the Fabulous Fox Theatre where captioning is requested at least two weeks in advance. - Publicize the availability of captioning at the Fabulous Fox Theatre and provide means to request captioning. - Provide hands-free, line-of-sight captioning devices at the Fabulous Fox Theatre for use from accessible seating upon two weeks advance request.- Provide handheld captioning devices at the Fabulous Fox Theatre for use from non-accessible seating upon two weeks advance request. - For single events or series of events, offer for sale to deaf patrons tickets for accessible seating at the Fabulous Fox Theatre u nder the same terms and conditions as other tickets sold for the same event or series of events. - Enable persons to purchase tickets to captioned performances at the Fabulous Fox Theatre by non-telephonic means, including by electronic mail. An appropriate Judgment is entered herewith. Any motion for attorney's fees shall be filed in accordance with Local Rule 8.02. Signed by District Judge Catherine D. Perry on April 18, 2018. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARIA C. CHILDRESS, a/k/a
Tina Childress, et al.,
Plaintiffs,
v.
FOX ASSOCIATES, LLC, d/b/a
Fabulous Fox Theatre,
Defendant.

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Case No. 4:16 CV 931 CDP

MEMORANDUM AND ORDER
Title III of the Americans with Disabilities Act (ADA) prohibits owners and
operators of places of public accommodation such as the Fabulous Fox Theatre
from discriminating on the basis of disability in the full and equal enjoyment of its
goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §
12182(a). Such places are prohibited from affording people with disabilities “the
opportunity to participate in or benefit from a good, service, facility, privilege,
advantage, or accommodation that is not equal to that afforded to other
individuals,” id. § 12182(b)(1)(A)(ii); and are required to provide “auxiliary aids
and services” as may be necessary to “ensure that no individual with a disability is
excluded, denied services, segregated or otherwise treated differently than other
individuals,” id. § 12182(b)(2)(A)(iii). A public accommodation must provide

appropriate auxiliary aids and services to ensure “effective communication” with
individuals with disabilities. 28 C.F.R. § 36.303(c)(1).
Plaintiffs Maria C. “Tina” Childress and Mary Stodden are deaf individuals
who each have cochlear implants that allow them to function adequately under
ideal circumstances. Even with this assisted hearing, however, the nature of their
hearing impairment prevents them from understanding the dialogue and lyrics of
live theater. Neither plaintiff knows or uses American Sign Language (ASL).
And, because of the nature of their hearing loss, volume-enhancing devices do not
aid in their ability to hear. Childress and Stodden are members of the Association
of Late Deafened Adults (ALDA) and the Greater St. Louis Chapter of the Hearing
Loss Association of America (HLAA-StL), non-profit organizations who support
and advocate for persons with hearing loss. Each organization has members who
have attended performances at the Fox. ALDA and HLAA-StL are also named as
plaintiffs and proceed in this action on behalf of its members. See Hunt v.
Washington State Apple Adver. Comm'n, 432 U.S. 333, 342-43 (1977) (standing of
association to bring suit on behalf of its members).
Plaintiffs allege that, because the full and equal enjoyment of the Fox
Theatre includes the ability to understand the dialogue and lyrics of live theater
during Broadway-type performances, effective communication for those who
cannot hear what is being said or sung requires hands-free, line-of-sight captioning.
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Plaintiffs further argue that, by providing captioning for only certain performances
and not all scheduled performances, the Fox Theatre provides services, privileges,
advantages, and accommodations to deaf Fox patrons that are not equal to those
afforded hearing patrons, and thus that they are treated differently from hearing
patrons, in violation of 42 U.S.C. §§ 12182(b)(1)(A)(ii) and 12182(b)(2)(A)(iii).
In their complaint, plaintiffs seek injunctive relief, and specifically that Fox
Theatre be ordered to: 1) provide open or closed captioning at all performances of
theatrical productions; 2) publicize the availability of captioning and provide
means to request captioning; 3) enable persons to purchase tickets to captioned
performances by non-telephonic means, including by electronic mail; and 4)
provide hands-free, line-of-sight captioning devices. In their motion for summary
judgment, plaintiffs clarify that they ask for Fox Theatre to provide captioning only
when requested. They make an additional request in their motion, however, that
Fox Theatre be ordered to establish a procedure for it to consider and respond to
customer feedback about captioning.
Both sides have moved for summary judgment.
Legal Standard
Summary judgment must be granted when the pleadings and proffer of
evidence demonstrate that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). I must view the facts in
the light most favorable to the nonmoving party, “but only ‘if there is a genuine
dispute as to those facts.’” RSA 1 Ltd. P'ship v. Paramount Software Assocs., Inc.,
793 F.3d 903, 906 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042).
The parties agree that the relevant facts are not in dispute, but each side
argues that the law as applied to those facts requires that judgment be entered in
their respective favor. For the following reasons, plaintiffs are entitled to judgment
as a matter of law on their claims of discrimination. They are not legally entitled,
however, to all of the relief they seek. I will therefore grant their motion for
summary judgment and enter the relief to which they are entitled under the law.
Defendant’s motion for summary judgment will be denied.
Evidence Before the Court on the Motions
The Fox Theatre is a 4500-seat indoor theater and stage venue. It provides a
wide range of accommodations for guests with disabilities and provides
information regarding these accommodations on its public website.
In April 2016, plaintiff Childress contacted Fox Theatre to request
captioning for Rent, a Broadway production scheduled to perform at the Fox in
May 2017. Fox responded that it had no plan to provide captioning. Childress’s
counsel thereafter sent a letter to Fox regarding the ADA’s requirement for
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captioning, but the letter went unanswered. Childress then filed this lawsuit in
June 2016.
After the lawsuit was filed, and after negotiations and discussions among the
parties, Fox agreed to provide prescheduled captioning for one performance of
some of its Broadway productions, provided that captioning was requested two
weeks in advance of that prescheduled performance.1 Captioning for these
Broadway shows is typically prescheduled for a single Saturday matinee
performance of each show. Fox publicizes this information on its website. For
non-Broadway special events, Fox does not indicate whether captioning is
available.
Closed captioning was provided to Childress on a handheld device during
the May 20, 2017, performance of Rent. Because it was a handheld device,
Childress had to either hold it up to provide line-of-sight viewing, or set it on her
lap, which required her to look away from the performance to read the captioning.
Fox also provided closed captioning on five other occasions – for Mama Mia on
July 29, 2017; The Bodyguard on October 14, 2017; On Your Feet on November
18, 2017; The King and I on December 9, 2017; and School of Rock on January 21,
2018. Fox prescheduled the closed-captioned performance of School of Rock for
January 27, 2018, but because Childress was unable to attend that performance,
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The captioning service provided by Fox requires a live, in-person court reporter to be in
attendance and to transcribe the words, lyrics, and other sounds in real-time during the show.
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Fox provided closed captioning on that earlier date, January 21, when Childress
could attend. Fox continued in its plan to provide closed captioning at the January
27 performance.
Fox has six personal devices/tablets available for use by guests to view the
captions during each captioned show. Fox provides device holders for these tablets
but restricts their use to certain seats and rows that are wheelchair compatible. Fox
does not affix device holders to other seats or in other rows because the St. Louis
City Fire Marshal considers this condition to be a fire hazard. A patron may use a
handheld device from any seat in the theater.
When Fox provided closed captioning on January 21 at Childress’s request –
a date that was not prescheduled for closed captioning – Fox advised Childress that
it was making an “exception to [its] policy” “on this one occasion” and that future
requests for captioning for non-prescheduled performances would be evaluated on
a case-by-case basis and not always granted. For two season ticketholders who
requested captioning service, Fox exchanged their tickets so they could attend the
Saturday matinee performances that were prescheduled for captioning.
Plaintiff Stodden did not attend any performance at the Fox in 2016 or 2017,
nor did she request captioning at any performance at the Fox in 2016 or 2017. She
was unable to attend the prescheduled captioned performance of Rent.

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Discussion
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[.]” 42 U.S.C. § 12182(a). Theaters, concert halls, and
other places of entertainment are “public accommodations.” 42 U.S.C. §
12181(7)(C).
Discrimination under Title III of the ADA occurs when a public
accommodation provides disabled individuals with an opportunity to participate in
or benefit from its goods, services, facilities, privileges, advantages, or
accommodations, but that opportunity is not equal to that afforded to other
individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). The ADA focuses on the equal
opportunity to participate in obtaining and using services, not merely on the quality
of the service or its outcome. Id.; Silva v. Baptist Health S. Fla., Inc., 856 F.3d
824, 834 (11th Cir. 2017). See also Argenyi v. Creighton Univ., 703 F.3d 441, 449
(8th Cir. 2013) (aids and services need not produce identical result for disabled and
non-disabled persons, but they nevertheless must afford disabled persons equal
opportunity to gain the same benefit).
Because one purpose of the ADA is to remedy the discriminatory effect of
communication barriers faced by individuals with communication disabilities, such
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as hearing impairments, see 42 U.S.C. § 12101(a)(5), discrimination occurs when a
public accommodation fails “to take such steps as may be necessary to ensure that
no individual with a disability is excluded, denied services, segregated or otherwise
treated differently than other individuals because of the absence of auxiliary aids
and services,” 42 U.S.C. § 12182(b)(2)(A)(iii), unless taking such steps would
“fundamentally alter the nature of the good, service, facility, privilege, advantage,
or accommodation being offered or would result in an undue burden.” Id.
“Auxiliary aids and services” are the means or methods by which public
accommodations can effectively communicate with people who have
communication disabilities. See 42 U.S.C. § 12103(1). These aids and services
include, among other things, “open and closed captioning, including real-time
captioning; . . . or other effective methods of making aurally delivered information
available to individuals who are deaf or hard of hearing.” 28 C.F.R. § 36.303(b).
See also 42 U.S.C. § 12103(1). Regulations promulgated by the Department of
Justice require public accommodations to “furnish appropriate auxiliary aids and
services where necessary to ensure effective communication with individuals with
disabilities.” 28 C.F.R. § 36.303(c)(1). And, as described above, discrimination
under the ADA occurs when a public accommodation denies services, segregates,
or otherwise treats a disabled individual differently than other individuals because
of the absence of auxiliary aids and services. 42 U.S.C. § 12182(b)(2)(A)(iii).
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The plaintiffs here bring their claims of discrimination under the two
specific provisions of the ADA set out above: 1) 42 U.S.C. § 12181(b)(1)(A)(ii),
in that the opportunities to participate provided to them by Fox are unequal to
those provided by Fox to its non-disabled, hearing patrons; and 2) 42 U.S.C. §
12181(b)(2)(A)(iii), in that the absence of auxiliary aids and services at the Fox
results in unequal treatment. To prevail on these claims, plaintiffs must show (1)
discrimination on the basis of a disability (2) in the full and equal enjoyment of
goods, services, facilities, privileges, advantages, or accommodations of the Fox
Theatre (3) by Fox’s owner, lessor, or operator. Anderson v. Franklin Inst., 185 F.
Supp. 3d 628, 642 (E.D. Pa. 2016). For the following reasons, plaintiffs have
shown discrimination under these provisions of the ADA.
The parties do not dispute that plaintiffs are disabled within the meaning of
the ADA. Nor do they dispute that the Fox Theatre is a public accommodation.
Fox argues that plaintiffs cannot show discrimination in their enjoyment of its
services or facilities, however, because Fox’s modification to its policies and
procedures – providing closed captioning for hearing-impaired individuals at a
prescheduled performance of each of its Broadway-series productions – is
reasonable. Fox argues that because it has provided a reasonable accommodation,
nothing more is required for it to comply with the ADA. Fox’s argument is
misplaced.
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Fox is correct that an entity can be held liable for ADA discrimination for
failing to reasonably modify its policies and practices to accommodate individuals
with disabilities. See 42 U.S.C. § 12182(b)(2)(A)(ii). But plaintiffs do not bring a
claim under this provision of the ADA and do not base their claims on an alleged
failure to change policies or procedures. Instead, plaintiffs claim that the
opportunity afforded by Fox to deaf individuals to participate in Fox’s services is
not equal to that afforded to its hearing patrons, which is in violation of 42 U.S.C.
§ 12182(b)(1)(A)(ii); and further, that Fox’s provision of closed captioning at only
preselected performances of limited productions – and thus, the absence of this
auxiliary aid and service at other performances – causes deaf individuals to be
treated differently than other individuals, which is in violation of 42 U.S.C. §
12182(b)(2)(A)(iii). I agree.
A non-disabled, hearing person has the benefit of an expansive selection of
performances to attend at the Fox and is not limited to only one performance on a
date preselected by the venue. Because a disabled deaf person is not afforded this
benefit, it would be error to conclude that the mere successful provision of
captioning for only one prescheduled performance is enough, as a matter of law, to
preclude liability under the ADA. Cf. Silva, 856 F.3d at 835. While closed
captioning provides an opportunity to deaf patrons to participate in Fox’s services,
the limited opportunity provided by Fox is not equal to that afforded to its non- 10 -

disabled, hearing patrons. This denial of an equal opportunity to participate
violates 42 U.S.C. § 12182(b)(1)(A)(ii). Further, to provide captioning for only
certain types of performances, i.e., the Broadway series, and not others likewise
deprives a disabled deaf person of a benefit that is accorded to hearing persons.
Fox’s failure to make this auxiliary aid and service available for all productions
results in deaf persons being excluded, denied services, or otherwise treated
differently than other individuals merely because of the absence of this aid. This
failure violates 42 U.S.C. § 12182(b)(2)(A)(iii). Fox presents no argument or
evidence that “undue burden” or “fundamental alteration” excuses its failure.
Fox argues that the regulations permit it to be the decision maker as to what
constitutes effective communication and that no legal authority requires it to
provide captioning service at every performance. Under 28 C.F.R. §
36.303(c)(1)(ii), a public accommodation has ultimate decision making authority
over “what type of auxiliary aid” is needed to ensure effective communication, as
long as effective communication is accomplished. To be effective, “the auxiliary
aids and services must be provided in accessible formats, in a timely manner, and
in such a way as to protect the privacy and independence of the individual with a
disability.” Id. There is no dispute that the captioning service provided at the Fox
is an appropriate type of auxiliary aid under the regulation. However, given the
limited basis on which Fox provides it to its deaf patrons, that is, only at
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Broadway-series productions and then only on one preselected date per production,
it cannot be said that this provision of an otherwise appropriate auxiliary aid
protects the independence of the individual with a disability. I cannot say,
therefore, that Fox’s limited provision of captioning ensures effective
communication. It certainly does not provide its deaf patrons the opportunity to
participate in Fox’s services on an equal basis as that afforded to its nondisabled,
hearing patrons, 42 U.S.C. § 12182(b)(1)(A)(ii); and it results in the exclusion of
disabled individuals from several Fox productions, and segregation to only certain
performances that are preselected by Fox. This different treatment runs afoul of 42
U.S.C. § 12182(b)(2)(A)(iii).
Accordingly, injunctive relief is warranted on the claims raised in this case
to bring the Fox Theatre in compliance with the ADA and to protect the rights of
its deaf patrons, including plaintiffs.
Injunctive Relief
Plaintiffs primarily ask that Fox make hands-free, line-of-sight captioning
available to its deaf patrons for all performances at which such captioning is
requested. Fox currently requires two weeks’ advance notice for captioning
service, and, other than objecting to Fox limiting this requested service to only one
performance per Broadway production, plaintiffs do not complain that requiring
two weeks’ advance notice is unreasonable.
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Fox also currently provides handheld tablets for captioning, which can be
used from any seat in the theater. While Fox has device holders that would
provide the hands-free, line-of-sight remedy requested by plaintiffs, it restricts
their use to only wheelchair-compatible seats and rows because of fire safety
concerns. Plaintiffs concede that these concerns are valid, but argue that restricting
the use of device holders or support stands to only wheelchair-compatible seats
may lead a wheelchair-bound patron to “oust” a deaf patron from that space,
possibly leaving that deaf patron with no choice but to the leave the theater.
Plaintiffs are incorrect in their assumption.
“A public accommodation that sells tickets for a single event or a series of
events shall modify its policies, practices, or procedures to ensure that individuals
with disabilities have an equal opportunity to purchase tickets for accessible
seating[.]” 28 C.F. R. § 36.302(f)(1)(ii). While “accessible seating” is defined as
“wheelchair spaces and companion seats,” 28 C.F.R. § 36.302(f)(1)(i), and are
designed for use by a wheelchair user, 28 C.F.R. Ch. 1, Pt. 36, App. A, the seating
may be used by non-wheelchair users “if those persons are persons with a
disability who need to use accessible seating . . . because their disability requires
the use of the features that accessible seating provides[.]” Id., § 36.302(f).
Accessible seating at the Fox provides the feature of holders or support
stands for hands-free, line-of-sight captioning for use by its deaf patrons. This
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feature is not available in non-accessible seating. Under the regulations, therefore,
Fox must provide its deaf patrons the opportunity to purchase tickets for accessible
seating so that they may use this feature. A person who has a ticket for accessible
seating (even a non-disabled person) is not required to be removed if a wheelchair
user with a ticket for a non-accessible seat appears and requests accessible seating.
See 28 C.F.R. Ch. 1, Pt. 36, App. A, § 36.302(f). Because deaf patrons are persons
who have a disability that requires the use of the accessible feature that is provided
in Fox’s accessible seating, they are entitled to purchase tickets for that seating
without threat of removal.
Upon consideration of the requested relief and the circumstances of this
case, I will order that Fox Theatre: 1) provide open or closed captioning at all
performances of theatrical productions where captioning is requested at least two
weeks in advance; 2) publicize the availability of captioning and provide means to
request captioning; 3) enable persons to purchase tickets to captioned
performances by non-telephonic means, including by electronic mail; and 4)
provide hands-free, line-of-sight captioning devices in areas designated as
accessible seating, and handheld captioning devices in all other seating. I
conclude, as a matter of law, that the ADA does not require public
accommodations to establish procedures for them to consider and respond to
customer feedback about captioning, so I will not order this requested relief.
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Because this is an issue of law based on the undisputed facts, no trial is necessary
on this issue.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ Motion for Summary Judgment
[34] is granted.
IT IS FURTHER ORDERED that defendant’s Motion for Summary
Judgment [52] is denied.
IT IS FURTHER ORDERED that within thirty (30) days of the date of
this Order, defendant shall:
 Provide open or closed captioning at all performances of theatrical
productions at the Fabulous Fox Theatre where captioning is requested at
least two weeks in advance.
 Publicize the availability of captioning at the Fabulous Fox Theatre and
provide means to request captioning.
 Provide hands-free, line-of-sight captioning devices at the Fabulous Fox
Theatre for use from accessible seating upon two weeks’ advance request.
 Provide handheld captioning devices at the Fabulous Fox Theatre for use
from non-accessible seating upon two weeks’ advance request.
 For single events or series of events, offer for sale to deaf patrons tickets
for accessible seating at the Fabulous Fox Theatre under the same terms
and conditions as other tickets sold for the same event or series of events.
 Enable persons to purchase tickets to captioned performances at the
Fabulous Fox Theatre by non-telephonic means, including by electronic
mail.

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An appropriate Judgment is entered herewith. Any motion for attorney’s
fees shall be filed in accordance with Local Rule 8.02.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 18th day of April, 2018.

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