Private Rights of Action Under Title II of the ADA Washington State Transit Insurance Pool Board Meeting December 6, 2012

Overview ADA from 30,000 feet Discrimination under Title II of the ADA Is there a private right of action under Title II? Donnelly v. Intercity Transit

Title I of the ADA Employment  Prohibits discrimination against applicants or employees on the basis of disability  Requires employers to make reasonable accommodations for employees with disabilities. Regulatory Agency  Equal Employment Opportunity Commission

Title II of the ADA Public Services  Accessibility requirements for gov’t. facilities and programs, transit agencies; prohibits discrimination  Disabled individuals must be afforded “meaningful access” and “comparable” services. 42 U.S.C. §12132 and §12143 Regulatory Agencies  DOJ (Office of Civil Rights)  DOT (Federal Transit Administration)

Title III of the ADA Places of Public Accommodation  Accessibility requirements for restaurants, hotels, retail stores, etc.) Regulatory Agencies  DOJ (Office of Civil Rights)  DOT

Suits Alleging Title II Discrimination Common assertions:  Denial of access  Disparate or “inadequate” services Typically based upon:  Alleged violations of a statute (e.g. 42 U.S.C. §12143)  Alleged violations of agency regulations Remedies  Injunctive relief (and possibly compensatory damages)  Attorneys fees

What is a Private Right of Action? The right of an individual to enforce an agency regulation through a civil action. General rule:  Only Congress (through statutes) can create a private right of action; and  A regulation cannot serve as the basis for a private right of action unless it encapsulates “rights” and “remedies” set forth by the underlying statute. Alexander v. Sandoval, 532 U.S. 275 (2001) Lonberg v. City of Riverside, 571 F.3d (9 th Cir. 2009)

Private Right of Action? Lonberg v. City of Riverside  Trial Court: Plaintiff claimed the City violated Title II of the ADA because its “transition plan” did not meet the requirements of 28 CFR § because it did not include a schedule for achieving accessibility measures. The district court agreed and granted an injunction against the City.  Appellate Court Holding: No private right of action. The statute upon which the regulation was based (42 U.S.C. §12132) only requires “meaningful access.” The statute is silent on “a schedule for achieving accessibility measures.” Injunction reversed.

Donnelly v. Intercity Transit Facts  Plaintiff has cerebral palsy and is wheelchair. Regular paratransit passenger.  Claims that during a transport, the van driver “hit a speed bump at excessive speed,” causing the securement straps for his wheelchair to loosen. Alleges he was injured as result of excessive movement by his wheelchair after when the straps came loose.

Donnelly v. Intercity Transit Original Complaint  Negligence based claims. Amended Complaint  Claimed discrimination under Title II of the ADA based on alleged violations of the Paratransit regulations promulgated by DOT (concerning maintenance of securement straps and availability of shoulder harnesses) Removal to federal court

Donnelly v. Intercity Transit Crux of ADA claim  Sought compensatory damages and attorney fees based on alleged violations of DOT regulations – 49 CFR §37.161(a) and (b) and 49 CFR § 38.23(d)(7). Defense / Motion to Dismiss  No private right of action. The statutes giving rise to those regulations are silent on the issue of securement straps  42 U.S.C. §12132 (“meaningful access”)  42 U.S.C. §12143 (“comparable services”)

Court’s Ruling This court “must examine a challenged regulation in the context of the statute it is meant to implement…”  The purpose of 42 U.S.C. §12143 is to require an appropriate level of service comparable to individuals without disabilities  The purpose of 42 U.S.C. §12132 is to provide “meaningful access”  There has been no showing the plaintiff was denied comparable service or meaningful access. No private right of action

Alternative Remedies Appropriate avenues for relief  FTA Complaint process  Administrative complaints to the transit agency  Injunctive relief: must show “a real or immediate threat of substantial or irreparable injury.” Midgett v. Tri-County Metro Transp. Dist., 254 F.3d 846, 850 (9th Cir. 2001)  Compensatory damages only available under Title II when there is a showing of discriminatory intent.

Questions? Presenters Jessie L. Harris Partner, Williams Kastner Bill Aloe Associate, Williams Kastner