Private Rights of Action Under Title II of the ADA Washington State Transit Insurance Pool Board Meeting December 6, 2012
Dec 16, 2015
Private Rights of Action Under
Title II of the ADA
Washington State Transit Insurance PoolBoard 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 ADAEmployment
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 (9th 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 §35.150 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 TransitCrux 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?
PresentersJessie L. Harris
Partner, Williams [email protected]
Bill AloeAssociate, Williams [email protected]