Green v. Central Midlands Regional Transit Authority et al
Filing
55
OPINION and ORDER granting in part and denying in part 46 Motion for Summary Judgment. Signed by Honorable Cameron McGowan Currie on 4/22/2019.(cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
ARTHUR GREEN,
C/A No. 3:17-cv-02667-CMC
Plaintiff,
v.
CENTRAL
MIDLANDS
TRANSIT AUTHORITY,
COMET,
REGIONAL
D/B/A THE
Opinion and Order
on Motion for Summary Judgment
(ECF No. 46)
Defendant.
Through this action, Arthur Green (“Green”) seeks recovery from the Central Midlands
Regional Transit Authority, d/b/a The Comet (“CMRTA”) for alleged discrimination in violation
of the Americans with Disabilities Act of 1990, 49 U.S.C. § 12111 et seq. (“ADA”). Green alleges
CMRTA violated Title II of the ADA, 49 U.S.C. § 12131 et seq. (“Title II”), which prohibits
discrimination in the provision of public services, by failing to provide non-discriminatory service
on buses operated by or on behalf of CMRTA. 1
STANDARD
Summary judgment should be granted 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). It is well established that summary judgment should be granted “only when it is clear that
there is no dispute concerning either the facts of the controversy or the inferences to be drawn from
those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). The
1
The services at issue were provided by Transdev Services, Inc. (“Transdev”), a private company
contracted by CMRTA to provide bus service in the relevant area. For purposes of this order, the
court does not distinguish between CMRTA and Transdev.
party moving for summary judgment has the burden of showing the absence of a genuine issue of
material fact, and the court must view the evidence before it and the inferences to be drawn
therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962).
BACKGROUND
Allegations. 2 Green is a paraplegic confined to a wheelchair. ECF No. 1 (Complaint) ¶¶
2, 9. For purposes of its summary judgment motion, CMRTA does not dispute Green is a qualified
individual with a disability as required to establish the first element of a Title II claim. See infra
Discussion § I (“Elements of Title II Claim”).
During the twenty-seven month period at issue in this action, Green regularly used bus
services provided by CMRTA as his primary means of transportation. 3
He was generally
accompanied by his wife (“Mrs. Green”). Id. ¶ 11. On multiple occasions during this period,
Green alleges he encountered difficulties utilizing CMRTA’s bus services. See Complaint ¶¶ 1239. The difficulties fall into three categories: (1) roughly twenty-seven instances in which the
wheelchair lift or related mechanisms malfunctioned (id. ¶¶ 12-18, 22-31, 36, 37); (2) four
instances in which a driver did not properly secure Green’s wheelchair, at least initially (id. ¶¶ 32,
2
The Complaint is unverified. The court, nonetheless, cites to the Complaint in setting forth
background allegations.
3
The Complaint alleges Green suffered a personal injury as a result of an incident on February
28, 2015. Complaint ¶ 10. However, Green does not seek relief for this incident in this action.
Complaint ¶ 10; ECF No. 52 at 2 n.2 (noting the February 28, 2015 incident is “the subject of a
separate lawsuit”); Green dep. at 16. The remaining allegations relate to the twenty-seven month
period from May 2015 through August 2017.
2
33, 36, 39); and (3) roughly nine instances in which a driver was discourteous or treated Green
less favorably than other passengers (id. ¶¶ 17, 19-21, 34-36, 38).
Lift Malfunction Allegations. The alleged difficulties with the wheelchair lift and related
mechanisms fall into two subcategories: (1) instances in which the malfunction precluded Green
from boarding; and (2) instances in which the malfunction occurred while Green was boarding or
attempting to disembark. The first subcategory resulted in denial of service on the bus with the
malfunctioning lift, requiring Green to wait for another bus or relocate to another bus stop in order
to obtain service. Id. ¶¶ 12, 13, 15, 17, 27, 28, 30, 31, 36, 37; see also id. ¶ 16. 4 Green alleges
that on one occasion in August 2016, four buses in a row had inoperable wheelchair lifts. Id. ¶ 27.
Green’s other allegations involve a single bus with a malfunctioning lift, though he alleges two
series of incidents in May and June 2015, when he encountered similar problems over succesive
days. Id. ¶¶ 12, 13, 15, 16.
The second subcategory caused Green to suffer inconvenience and delay and, in some
cases, fear and anxiety. Id. ¶¶ 14, 18, 23-26. In one instance, Green alleges he was stranded on
the lift in the air for nearly two hours, causing him to suffer substantial fear and anxiety. Id. ¶ 14.
In another instance, he alleges he was stuck on the bus for an hour after other passengers
disembarked. Id. ¶ 26. Other instances involved shorter delays. E.g., id. ¶ 18 (alleging delay of
4
The allegations in paragraph sixteen are too vague to categorize. Id. ¶ 16. However, Green’s
deposition testimony suggests the alleged malfunction resulted in a denial of service on the bus
with the malfunctioning lift. Green dep. at 59-61 (initially indicating he did not recall anything
about this incident other than what was in the Complaint but then stating he was able to catch
another bus, suggesting the difficulty resulted in denial of service on the first bus).
3
a few minutes while driver lowered the lift manually); id. ¶ 23 (alleging he suffered momentary
fear when a lift lowered unexpectedly before driver stopped it).
Green Deposition. During his deposition, Green was questioned about the various
instances in which he encountered difficulties due to lift malfunctions. E.g. Green dep. at 18-25,
28, 35, 38, 41-49. 5 Green had limited recollection of some incidents. 6 While the Complaint alleges
and Green testified Mrs. Green took notes and sent texts or otherwise communicated complaints
to CMRTA regarding many of the incidents, he has not proffered a prediction of admissible
evidence regarding Mrs. Green’s observations or complaints. See Complaint ¶ 11; Green dep. at
24, 25. 7
Addressing the first incident in which a malfunction prevented him from boarding, Green
testified the driver apologized for the inconvenience and called his supervisor who agreed to send
other transportation. Green dep. at 18-22, 24 (stating, in addressing Complaint ¶ 12, that driver
5
The parties have filed only selected pages of Green’s deposition. See ECF No. 46-7 (CMRTA’s
submission of 73 pages plus one exhibit); ECF No. 52-1 (Green’s submission of 11 pages).
6
See, e.g., id. at 35 (addressing Complaint ¶ 13); id. at 59-60 (addressing Complaint ¶ 16); id. at
69 (addressing Complaint ¶ 17); id. at 103-04 (addressing Complaint ¶ 25); id. at 113, 130, 131,
160 (addressing Complaint ¶¶ 28, 30, 31, 36).
7
Green proffers printouts of documents that purport to represent Mrs. Green’s notes, texts and
photographs. See ECF No. 52-2, 52-3, 52-4, 52-5; see also ECF No. 52 at 2, 8 n.6 (citing these
exhibits in opposition memorandum). He does not, however, proffer deposition testimony, an
affidavit, or other evidence that might resolve hearsay concerns with the out-of-court statements.
There is no evidence CMRTA actually received any of the claimed text messages, and substantial
evidence it did not. See ECF No. 46-10 (declaration of CMRTA employee explaining number to
which Green claims texts were sent “is not capable of receiving text messages”); ECF No. 52 at 2
n.3 (Green’s memorandum conceding there “is some issue as to whether Defendant was able to
receive these complaints at the number they were sent to.”). Thus, many of the documents on
which Green relies in opposing summary judgment are not a prediction of admissible evidence.
4
“felt real bad”). Rather than waiting on alternate transportation, Green elected to use his motorized
wheelchair to travel five blocks to another bus stop. Id. at 20, 21 (stating he does not recall how
long it took to travel the five blocks). 8
Green did not recall the precise wait time for the next bus when the malfunction on one
bus required him to wait for another. See infra Discussion § II.A. (addressing, inter alia, 49 C.F.R.
§ 37.163(f), which requires alternate service be provided if the next bus is not scheduled to arrive
within thirty minutes). At one point, he testified the next bus usually came within thirty to forty
minutes. Green dep. at 38. At several other points, he testified either that the next bus generally
arrived within thirty minutes or after a short wait. Id. at 60 (stating buses generally came “[w]ithin
a half an hour”); id. at 69 (stating, in addressing allegation he was “stranded for an unacceptable
length of time,” that he caught another bus in “about half an hour”); id. at 52-56 (stating he was
able to take a different bus after a short wait by moving to a different stop less than two blocks
away); see also ECF No. 47 at 13 (chart summarizing Green’s testimony regarding wait times for
the next bus or alternate service).
Green testified to one instance in which he waited more than thirty minutes for alternate
transportation after encountering a bus with a malfunctioning lift. Green dep. at 111 (addressing
Complaint ¶ 27). This is the incident in which Green encountered four buses in a row with lift
problems. Id. Green testified he had to wait forty-five minutes before he was able to board a bus
with a functioning lift. Id. He also testified a supervisor “stayed through the whole time” and tried
to fix the problem on each of the buses with malfunctioning lifts. Id. at 110.
8
The Complaint alleges “[t]he driver made no attempt to try to alert a bus to come and pick
Plaintiff up[.]” Complaint ¶ 12.
5
As to instances when a lift malfunctioned while he was boarding or when he tried to
disembark, Green testified the problems required action by the driver, a supervisor, a mechanic, or
a combination of personnel. 9 The most extreme delay in resolving such a malfunction occurred
on May 30, 2015, and left Plaintiff stranded on the lift for nearly two hours. Green dep. at 41-49
(addressing Complaint ¶ 14).
Both a supervisor and maintenance worker were called and
attempted to resolve the problem. Id. at 43, 45. When the supervisor and mechanic could not fix
the lift, they used a lift on a truck to remove Green from the bus. Id. at 45. Green was afraid he
would fall during the time he was on the lift and believes the experience caused him to have
elevated blood pressure when he visited his doctor the following day. Id. at 43, 45, 49.
In one other instance, Green testified he was stranded on the bus (not the lift) for one hour
after other passengers disembarked. Id. at 105 (addressing Complaint ¶ 26). A mechanic was
called to resolve this problem after the driver and supervisor were unable to do so. Id. One other
instance left Green stuck on a lift for fifteen minutes and was resolved by a supervisor using the
manual function to deploy the lift (“Manual Function”). Id. at 96-99 (addressing Complaint ¶ 24).
In other instances, lift problems either involved momentary slipping or malfunctions were resolved
in a short time by the driver. E.g., id. at 70-72 (addressing Complaint ¶ 18); id. at 92-96 (addressing
Complaint ¶ 23).
As to each incident involving a lift malfunction, Green testified he was not aware whether
the lift was repaired or the bus was taken out of service before the following business day. See,
9
See, e.g., id. at 41-49 (addressing Complaint ¶ 14); id. at 70-72 (addressing Complaint ¶ 18,); id.
at 92-96 (addressing Complaint ¶ 23); id. at 96-99 (addressing Complaint ¶ 24); id. at 105
(addressing Complaint ¶ 26).
6
e.g., ECF No. 47 at 9-11 (chart summarizing Green’s testimony); see also infra Discussion § II.A.
(addressing regulations relating to actions required after a malfunction). Green proffers no other
evidence regarding how lifts were maintained and whether CMRTA complied with related
regulations. 10
The last alleged incident involving a lift malfunction occurred on March 30, 2017, six
months before this action was filed. Complaint ¶ 37. On January 17, 2019, Green testified he no
longer encounters difficulties boarding or disembarking buses because of a change in the buses.
Green dep. at 181-82 (testifying new buses are a “whole lot better”). CMRTA also proffered
evidence the problems were resolved by replacing the buses with buses that use a different type of
lift. ECF No. 46-9 at 10 (Nicholson dep. at 22).
Failure to Properly Secure Wheelchair Allegations.
The Complaint alleges four
instances in which Green’s wheelchair was not properly secured or a driver acted discourteously
in the process of securing the wheelchair. Complaint ¶¶ 32, 33, 36, 39. The first incident allegedly
occurred on September 23, 2016, and involved a driver securing only two of four straps.
Complaint ¶ 32. Green alleges he drew the error to the attention of a supervisor who attached the
remaining straps. Id. The next incident allegedly occurred on September 30, 2016, and again
involved a driver attaching only two of four straps. Id. ¶ 33 (alleging driver refused to secure
10
Green challenges CMRTA’s reliance on certain maintenance records because they were not
produced in discovery. ECF No. 52 at 4, 5 (addressing maintenance protocol and records filed as
ECF Nos. 46-3 and 46-6). He proffers CMRTA’s responses to interrogatories seeking a list of all
documents in CMRTA’s possession that “relate to the claim or defense in the case” or “are relevant
to the Complaint or Answer.” ECF No. 52-6 at 4 (interrogatories 2, 3). CMRTA responded by
producing documents pursuant to Rule 33(d) of the Federal Rules of Civil Procedure. Id. Green
maintains CMRTA should have disclosed the challenged records in this or a supplemental response
but did not do so. The court agrees the challenged maintenance records should be excluded.
7
additional straps after Green drew the error to his attention). While these alleged incidents may
have been addressed in Green’s deposition, neither side proffers deposition pages addressing
them. 11
The third incident allegedly occurred on March 15, 2017. Id. ¶ 36. Rather than alleging a
failure to attach all four straps, Green alleges the straps came loose when the driver slammed on
brakes. Id. Instead of checking the straps, the driver said they would not tighten and took no
further action. Id. In his deposition, Green testified he believed the straps came loose because his
chair moved. Green dep. at 157-60.
As to the fourth incident, Green alleges the driver acted “very rudely” when Green and his
wife tried to politely assist her. Complaint ¶ 39 (addressing incident on August 30, 2017). He does
not allege the straps were not properly secured. Neither side proffers deposition testimony relating
to this incident. 12
Discourteous Behavior, Allegations and Evidence.
The Complaint identifies nine
instances in which a bus driver allegedly treated Green or his wife discourteously. Complaint ¶¶
17, 19-21, 34, 35, 38. Five of these instances allegedly resulted in a denial of service. Id. ¶¶ 17,
19, 20, 21, 34.
The first incident allegedly occurred on July 10, 2015, and involved a bus driver stating
the bus was full, even though it appeared to Green that no disabled or elderly individuals were
11
A question relating to the first incident is included in the deposition excerpts submitted by
CMRTA. Green dep. at 131. Pages covering Green’s response and any subsequent discussion are
not provided by either party.
12
Annotations on photographs purportedly taken by Mrs. Green state the driver initially attached
the straps to the wrong points but ultimately attached them properly. ECF No. 52-9 at 3.
8
seated in the areas reserved for a wheelchair. Id. ¶ 17. Green testified there were lots of people in
the bus but the passengers in the wheelchair seats did not appear to be elderly or handicapped.
Green dep. at 63, 64. As to this incident, Green testified the driver could have asked someone to
move “[b]ut evidently, he didn’t” do so. Id. 13
The second alleged incident occurred on March 30, 2016, when the driver rolled past the
proper pick up point, preventing the lift from opening properly, and refused to back up, stating she
could not do so and Green would have to wait for the next bus. Complaint ¶ 19. As to the next
four incidents , Green alleges the following: (1) Green was denied service on the same bus and on
the same route the next day (following March 30, 2016); (2) Green was denied service after his
wife and a driver had a dispute over whether the Greens were at the proper stop; (3) a bus driver
boarded after non-disabled passengers boarded, looked at Green, then drove off without allowing
Green to board; and (4) a driver allowed other passengers to board or disembark before Green
three times in the same day (February 22, 2017). Id. ¶¶ 20, 21, 34, 35.
In his last allegation of discourteous behavior, Green alleges that, on April 10, 2017, a
driver required him to wait while five or six other passengers boarded first. Id. ¶ 38 (alleging it
was the third instance of mistreatment by the same driver). In his deposition, Green testified he
asked the driver why she did this and she said she wanted to let the others board first. Green dep.
at 168-69 (stating he was delayed for 15 minutes waiting for 15 passengers to board ahead of him).
13
Photographs proffered by Green show this bus number and include a notation with the date of
this incident. See ECF No. 52-3 at 4, 5. However, the problem described in the annotation relates
to a “broken lift.” Id. Thus, this document does not support the allegation of discourteous behavior
alleged in the Complaint.
9
DISCUSSION
I.
Elements of Title II Claim
Title II applies to “public entities,” which includes “any department, agency, special
purpose district or other instrumentality of a State or States or local government[.]” 42 U.S.C. §
12131(1)(B). CMRTA concedes it is “an instrumentality of several local governments” and,
consequently, subject to the requirements of Title II. ECF No. 47 at 7.
To establish a claim under Title II, Green must prove three elements: (1) he is a qualified
individual with a disability; (2) he was discriminated against by being excluded from or denied the
benefits of a public entity’s services; and (3) the discrimination was because of his disability.
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005). For
purposes of summary judgment, CMRTA concedes Green satisfies the first element but maintains
he has not proffered admissible evidence of the second and third elements.
II.
Lift Malfunction and Driver-Related Allegations
A.
CMRTA Arguments. As to allegations involving lift malfunctions, CMRTA
relies on regulations that recognize malfunctions may occur and specify the actions the service
provider must take in the event of a malfunction. It argues as follows:
The ADA’s implementing regulations require public entities to maintain the lifts in
“operative condition,” but further contemplate that—as common sense makes
clear—sometimes, mechanical things break. See 49 C.F.R. § 37.161(a)-(c) (stating
lifts must be maintained in operative condition, but that “isolated or temporary
interruptions in service or access due to maintenance or repairs” are not prohibited).
If the lifts do not function, then the transportation entity needs to repair the lifts
“promptly.” Id. § 37.161(a). The entity may take the bus with the inoperable lift
out of service immediately, but it may also keep the lift in service for the remainder
of the service day. See id. § 37.163(a), (d), (e) (stating that when a lift is discovered
to be inoperative, it must be taken out of service “before the beginning of the
vehicle’s next service day” and that under certain, specified circumstances, the
vehicle may remain in service for three days); see also Midgett v. Tri-County Metro.
Transp. Dist., 74 F. Supp. 2d 1008, 1018 (D. Or. 1999) (refusing to grant
10
preliminary injunction re wheelchair lifts because “when viewed in the larger
context of Tri–Met’s entire fixed route system and the diverse passengers, including
diverse disabled passengers, that it serves, I am compelled to conclude that the
ongoing occasional lift problems do not violate the ADA or its implementing
regulations”).
ECF No. 47 at 8.
CMRTA argues Green has not proffered evidence of any instance in which it failed to
either repair the lift or take a bus out of service before the following day as required by 49 C.F.R.
§ 37.161(a)-(e) (relying, in part, on Green’s deposition testimony regarding his lack of knowledge
of maintenance). Id. at 8-11. Neither, it submits, has Green shown CMRTA failed to offer him
alternate service, as required by 49 C.F.R. § 37.163(f), when the next bus on the same route was
more than thirty minutes away. Id. at 12. 14
Even if Green could establish a Title II violation relating to a lift malfunction, CMRTA
argues he has not proffered evidence or argument that would support any relief. Id. at 18-21. It
argues he cannot obtain injunctive relief because the problems with lift malfunctions were resolved
by replacing the buses, mooting any claim for injunctive relief. Id. at 21, 22. To the extent Green
seeks monetary relief, CMRTA argues his claim is precluded because he cannot establish the
requisite motivation. Id. at 18-21 (arguing Green cannot establish deliberate indifference, the
lower of two potentially applicable standards for proving “intentional discrimination,” a
prerequisite for recovery of damages). 15
14
CMRTA also suggests the possibility the combined weight of Green and his wheelchair could
have caused the lifts to malfunction. The court does not consider this argument here and,
consequently, does not address Green’s counterargument.
15
CMRTA concedes the Fourth Circuit has not ruled on the applicable standard and the three
circuits that have decided the issue have adopted a deliberate indifference standard. ECF No. 47
11
CMRTA characterizes Green’s other allegations (e.g., that drivers failed to properly secure
his wheelchair, acted discourteously, or treated Green less favorably than other passengers) as
challenging the adequacy of CMRTA’s training. It argues Green cannot establish such a claim
because he has neither adduced evidence of CMRTA’s training program and practices nor
suggested any way in which the training should be improved. ECF No. 47 at 5, 6.
B.
Green’s Arguments
Green acknowledges the regulation on which CMRTA relies (49 C.F.R. § 37.163) may
provide a safe harbor in some circumstances, but argues the safe harbor is available only for
malfunctions that are “isolated or temporary.” ECF No. 52 at 7 (relying on 49 C.F.R. §
37.161(c)). 16 He maintains the frequency of the problems he encountered, combined with the
drivers’ actions and inactions (including but not limited to their failure to allow boarding using the
Manual Function) raise a genuine issue of material fact that precludes summary judgment on the
merits of his claim. Id. at 9, 10. 17
at 18-19 (citing Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001) as collecting
cases and adopting and defining the deliberate indifference standard).
16
In its reply, CMRTA argues Green improperly conflates the provisions of 49 C.F.R. § 37.161,
which uses the “isolated and temporary” language in acknowledging malfunctions will occur, with
those of 49 C.F.R. § 37.163, which describes what actions must be taken to minimize and address
malfunctions.
17
In support of this position, Green relies on the testimony of Mark Nicholson, CMRTA’s Rule
30(b)(6) witness. In the proffered pages of his deposition, Nicholson testified the bus lifts could
be operated both using a “hydraulic over electric” function and the Manual Function. The latter
operated like a floor jack. Nicholson dep. at 24, 25. Nicholson answered “no” when asked if he
had “any knowledge of a situation with a lift . . . wherein both the hydraulic over electric
malfunctioned as well as the manual way to rise [sic] or lower [the] lift” malfunctioned. Id. at 25.
12
As to CMRTA’s alternative argument that Green cannot establish a right to relief even if
he establishes a Title II violation, Green argues he need only prove deliberate indifference to
establish entitlement to damages. ECF No. 52 at 11. He maintains he has proffered sufficient
evidence to satisfy this standard because he has shown a “notable and repeated pattern of
interruption” of service due to lift malfunctions, including failure to use the Manual Function to
allow boarding when the electric over hydraulic system failed. Id.at 11, 12. He asserts these
failures “forced [him] to wait extended periods, travel extended distances in his wheel chair, or
risk missing appointment[s].” Id. at 12. He concludes CMRTA’s “failure to take control of its
repeated malfunctions in a proper manner, and in instances of a malfunction properly utilize the
[Manual Function] to provide services to Plaintiff constitutes deliberate indifference[.]” Id.
In the alternative, Green argues he is “entitled to declaratory and injunctive relief, costs,
and attorney’s fees.” Id. at 12. He does not address this argument further, for example by
specifying the declaratory or injunctive relief sought. Neither does he address the impact of
changed circumstances (new buses with a different lift system) on any claim for injunctive or
declaratory relief.
C.
Discussion
Violation of Title II. CMRTA’s argument interprets 49 C.F.R. § 37.163 to provide a safe
harbor regardless of the frequency of lift malfunction, so long as the service provider addresses
each malfunction by taking the actions specified in that regulation. 18 In contrast, based on
18
Section 37.163 specifically addresses “vehicle lifts” and requires service providers to do all of
the following: (1) “establish a system of regular and frequent maintenance checks” (§ 37.163(b));
(2) ensure operators report failures by “the most immediate means available” (§ 37.163(c)); (3)
when a malfunction is discovered, remove vehicles “from service before the beginning of the
13
language in 49 C.F.R. § 37.161, Green argues any safe harbor is available only if the malfunctions
are isolated and temporary. 19
At least one court has read the regulations as Green suggests. Tandy v. City of Wichita,
208 F. Supp. 2d 1214 (D. Kan.), reversed, in part, on other grounds, 380 F.3d 1277. 1291 (10th
Cir. 2004) (addressing standing and mootness). There the court held that, while “isolated lift
failures do not constitute an ADA violation[,] . . . a pattern of lift breakdowns can constitute a
violation.” Id. at 1225. Based on this interpretation, the court denied summary judgment where
plaintiffs had presented a triable issue “that the rate of mechanical failures within the [challenged]
system is unusual given the number of buses so as to constitute a pattern of breakdowns as opposed
to isolated incidents within a statistical median range.” Id. at 1225. 20
Green alleges a total of twenty-seven malfunctions over the same number of months, with
roughly eighteen of those malfunctions resulting in a denial of service because the lift was
vehicle’s next service day and ensure that the lift is repaired before the vehicle returns to service”
(§ 37.163(d) (subject to exceptions in § 37.163(e)); and (4) “In any case in which a vehicle is
operating on a fixed route with an inoperative lift, and the headway to the next accessible vehicle
on the route exceeds 30 minutes, the entity shall promptly provide alternative transportation to
individuals with disabilities who are unable to use the vehicle because its lift does not work” (§
37.163(f)).
19
Section 37.163 requires service providers “maintain in operative condition those features of . .
. vehicles that are required to make the vehicles . . . readily accessible to and usable by individuals
with disabilities,” but “does not prohibit isolated or temporary interruptions in service or access
due to maintenance or repairs.” 49 C.F.R. § 37.161(a), (c) (emphasis added).
20
Tandy addressed Title II claims asserted by multiple plaintiffs with a variety of disabilities. The
discussion of lift malfunctions related to claims of plaintiffs who sought injunctive relief requiring
the bus service to “maintain its vehicles so that they will be readily accessible to and usable by
individuals with disabilities.” Id. at 1224.
14
inoperable when he sought to board. Green points to evidence the drivers could have used the
Manual Function to allow boarding in these instances but did not do so.21 A number of instances
involving malfunctions after boarding left him stranded on the bus or lift, with two instances
stranding Green for an hour or more. In addition, Green points to a number of instances in which
drivers treated him less favorably than other passengers, including by requiring Green to wait for
others to board, even though he was first in the line, or acted discourteously (or ineffectively) in
securing Green’s wheelchair. Drawing all inferences in Green’s favor, the court finds the
collective allegations and evidence sufficient to raise a genuine issue of material fact as to the
merits of Green’s Title II claim.
Injunctive Relief. Green cannot obtain injunctive relief regarding the lift malfunctions or
driver’s related failure to use the Manual Function because he has failed to allege or proffer
evidence the problems are continuing or likely to occur again. He, in fact, testified that he no
longer encounters problems with the lifts. Green dep. at 181-82. This concession is consistent
with uncontroverted testimony from CMRTA’s Rule 30(b)(6) witness that most of the buses with
the type lift at issue have been replaced and those that remain are not in regular use. Nicholson
dep. at 22, 23. Similarly, Green offers no allegations or evidence of ongoing problems involving
21
Green relies on Nicholson’s testimony the Manual Function operated like a floor jack and
negative response to a query whether Nicholson was aware of any instance in which both the
hydraulic over electric and Manual Function allowing the operator “to rise and lower the lift”
failed. Nicholson dep. at 25. This is sufficient to raise an inference the Manual Function could
have been used.
15
driver discourtesy, failure to properly secure his wheelchair, or other actions or inactions that may
violate Title II. 22
Green’s failure to allege ongoing Title II violations is consistent with his failure to
expressly seek injunctive or declaratory relief through his Complaint which, at most, includes a
catch all request for “any such further relief as the Court deems just and proper.” Complaint at 12.
Even now, Green fails to specify any form of injunctive or declaratory relief that might address
the alleged violations. His only reference to such relief is in the following conclusory sentence in
his memorandum: “As set forth, Plaintiff remains entitled to declaratory and injunctive relief,
costs, and attorney’s fees.” ECF No. 52 at 12.
In sum, Green neither expressly sought injunctive or declaratory relief through his
Complaint nor, at this late stage, identifies any ongoing difficulties or equitable relief that might
address such difficulties. He, instead, concedes problems with the lifts have been resolved, a point
supported by undisputed evidence changes in equipment have eliminated the risk of the type
malfunction addressed in this action. Under these circumstances, CMRTA is entitled to summary
judgment to the extent Green’s Complaint may be read to seek injunctive or declaratory relief. See
Tandy v. City of Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004) (holding voluntary compliance
may moot a claim for injunctive relief where defendant meets heavy burden of “demonstrating it
22
The last lift malfunctions alleged in Green’s Complaint occurred in March 2017. Complaint ¶
36, 37 (filed early October 3, 2017). The last alleged incident involving driver discourtesy
occurred in April 2017. Complaint ¶ 38. The last alleged failure to properly secure straps or
related driver discourtesy occurred in August 2017. Complaint ¶ 39. Neither party has proffered
evidence of any alleged Title II violations after August 2017.
16
is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”
(internal marks omitted)). 23
Damages.
This leaves a possible claim for damages.
Green argues the deliberate
indifference standard governs his claim for damages. ECF No. 52 at 11-12. CMRTA maintains
the more strenuous “discriminatory animus” standard should apply, but argues Green’s claim fails
even under the deliberate indifference standard. ECF No. 47 at 18, 19. CMRTA cites no case that
has applied or defined its preferred standard and concedes the majority of courts that have decided
the issue apply the deliberate indifference standard. 24
The court’s research confirms the vast majority, if not all, of the circuit courts that have
decided the issue apply the deliberate indifference standard to claims for damages under Title II
of the ADA or similar claims under the Rehabilitation Act. See Havens v. Colorado Department
23
In Tandy, the appellate court found challenges to a policy that allowed drivers discretion to
deny service was mooted by several changes of circumstance including modification of the
equipment, routes, and policies allowing driver discretion. Id. (directing district court to consider,
on remand, whether remaining claims for injunctive relief were moot).
24
CMRTA notes the “standard for obtaining compensatory damages . . . has not been conclusively
decided in the Fourth Circuit,” and concedes “[t]he Second, Ninth and Tenth Circuits have adopted
the deliberate indifference standard” and “[t]he Fifth Circuit has yet to decide the issue[.]” ECF
No. 47 at 18, 19 (also noting a district court decision within the Fourth Circuit, CharlotteMecklenburg Bd. of Educ. v. B.H., 2008 WL 4394191 (W.D.N.C. Sept. 24, 2008), has applied the
deliberate indifference standard without discussing the basis for selecting that standard). While
CMRTA argues the arguably higher “discriminatory animus” standard better aligns with the
requirement to prove intentional discrimination, it points to no case that has applied that standard.
Id. (citing Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001) (stating plaintiff must prove
“intentional discrimination” to recover under Title VI of the Civil Rights Act of 1964, 78 Stat. 252,
as amended, 42 U.S.C. § 2000d et seq., a section arguably comparable to Title II). Neither does
CMRTA explain what the “discriminatory animus” test requires. Id.; see also ECF No. 53 at 9
(arguing, in reply, “[t]he debate concerning the appropriate standard is drawn directly from the
applicable statute as well as cases discussing Title II of the ADA,” but citing no specific case other
than Duvall, which applied a deliberate indifference standard).
17
of Corrections, 897 F.3d 1250, 1263, 1264 (10th Cir. 2018) (applying deliberate indifference
standard to claim for damages under Rehabilitation Act); Liese v. Indian River Cty. Hosp. Dist.,
701 F.3d 334, 342 (11th Cir. 2012) (same) ; Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268,
275 (2d Cir. 2009) (same); Meagley v. City of Little Rock, 639 F.3d 384, 390 (8th Cir. 2011) (noting
that “[e]very circuit court to address the issue since [2002] has reaffirmed that intentional
discrimination must be shown to recover compensatory damages” under the Rehabilitation Act
and ADA and applying deliberate indifference standard to proof of intentional discrimination).
This court joins that majority.
The Ninth Circuit defines deliberate indifference as requiring “both knowledge that a harm
to a federally protected right is substantially likely, and a failure to act upon that likelihood.”
Duvall, 260 F.3d at 1139. 25 Green argues his evidence of “a notable and repeated pattern of
interruption” of service that “forced [him] to wait extended periods, travel extended distances in
his wheelchair, or risk missing appointment[s]” raises a genuine issue of material fact as to both
prongs of this test. ECF No. 52 at 11, 12.
Green points to multiple instances in which lifts malfunctioned and the driver was unable
or unwilling to resolve the problem, including by using the Manual Function. In some cases, this
left Green to wait for another bus. On at least one occasion, the same problem occurred on four
buses in a row. In a number of instances, most critically instances in which Green was left stranded
on the bus or lift, CMRTA had to send a supervisor, maintenance person, or both before the
problem could be resolved, resulting in well over a thirty-minute delay. CMRTA ultimately
25
Neither side disputes this is the proper test if the deliberate indifference standard applies.
18
resolved the lift and related problems by replacing its buses with buses using a different lift system,
though it is an open question whether this action should and could have been taken at an earlier
time. As to issues of driver discourtesy and failure to properly secure Green’s wheelchair, the
evidence suggests most of these incidents were not reported to CMRTA (though Green and his
wife believed they had texted complaints to CMRTA). Nonetheless, an inference may be drawn
that the drivers themselves acted with deliberate indifference in some or all of these instances. See
Duvall at 1140-41 (holding “if Duvall’s account of the timing and content of his requests for
accommodation and defendants’ reactions thereto are accurate, a trier of fact could conclude that
defendants’ decisions not to accommodate him were considered and deliberate” and county could
be held “vicariously liable for the actions of [its] employees”).
The proffered evidence neither requires nor forecloses a finding of deliberate indifference.
The court, therefore, denies CMRTA’s motion for summary judgment to the extent it seeks a
determination Green cannot recover damages.
III.
Other Alleged Violations
CMRTA also argues Green’s Title II claim should be dismissed to the extent it alleges (1)
violation of the complaint procedures required by 49 C.F.R §§ 101-109, or (2) any violation b
relating to the Dial-a-Ride Transit (“DART”) program. ECF No. 47 at 16-18. Green concedes
both arguments. ECF No 52 at 5 n.4 (stating “Plaintiff does not contest Defendant’s arguments”
on either issue). Given this concession, CMRTA is entitled to summary judgment to the extent
the Complaint relies either on alleged violations of 49 C.F.R. §§ 101-109 or violations arising out
of the DART program.
19
CONCLUSION
For reasons set forth above, CMRTA’s motion for summary judgment is granted in part
and denied in part. The matter shall proceed to trial under the current scheduling order.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
April 22, 2019
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?