Opinion
Case No. 2:05-CV-00009PGC.
August 3, 2005
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
Defendants Runner's Corner, Inc., Kenneth Harper, and Cheryl Harper have moved to dismiss plaintiff's complaint for failure to state a claim. The defendants allege that the plaintiff (1) failed to exhaust his administrative remedies; (2) failed to request a reasonable accommodation; and (3) if an accommodation was requested, it was reasonable and would fundamentally alter the nature of the public accommodation. The court holds that Title III of the ADA does not require a defendant to exhaust his administrative remedies and that the complaint is otherwise satisfactory and therefore DENIES the motion to dismiss.
BACKGROUND
Plaintiff Curtis Brinkman is an amputee who requires a wheelchair. His complaint alleges various violations of Title II and Title III of the Americans with Disabilities Act. Specifically, Mr. Brinkman alleges that the annual Hobble Creek Half Marathon discriminates against disabled individuals by (1) refusing to establish a general wheelchair division in the Half Marathon; (2) refusing to register or issue race numbers to wheelchair athletes at the Half Marathon; and (3) failing to make modifications necessary to afford services, facilities, privileges, advantages, or accommodations to individuals with disabilities. In essence, Mr. Brinkman wishes to participate in the marathon and believes that the ADA requires the defendants to reasonably accommodate his request.
Mr. Brinkman has participated in the Hobble Creek Half Marathon in the past as an unofficial contestant. According to the complaint, on one occasion Defendant Kenneth Harper saw Mr. Brinkman's tires leave the ground while rounding a corner. Mr. Harper became adamant that it was unsafe for Mr. Brinkman to race and thereafter gave Mr. Brinkman a number of reasons why he would not be allowed to participate, the primary reason being the absence of a wheelchair division.
In 2004, Mr. Brinkman again tried to enter the Hobble Creek Half Marathon. He sent in his registration and went to pick up his registration number a few days before the race. An employee issued the number to him but, as he was leaving Defendant Cheryl Harper informed him that he would not be allowed to race because there was no wheelchair division in the race. Mr. Brinkman stated that he simply wanted to participate in the race and did not care if he was an official contestant. On the day of the race, Mr. Brinkman attempted to reach the staging area where the race was to begin but was unable to do so. Mr. Brinkman says he has made the defendants aware on many occasions that their actions violate the ADA.
DISCUSSION
1. Exhaustion of Remedies
Title III of the ADA prohibits discrimination by privately owned places of public accommodation:
No 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.
Whether or not the Hobble Creek Half Marathon is a place of public accommodation is not presently before the court.
Discrimination under the ADA includes
failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. . . .
42 U.S.C. § 12182((b)(2)(A)(ii).
The remedies contained in Title III are made available to
any person who is being subjected to discrimination on the basis of disability in violation of [Title III]. . . . Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.
Title III does not provide for a private cause of action for damages to remedy past wrongs, but does allow an individual to sue for injunctive relief. Title III therefore requires "some ongoing harm (or, at least, a colorable threat of future harm)."
Dudley v. Hannaford Bros. Co., 333 F.3d 299, 304 (1st Cir. 2003).
Id.
The defendants argue that Mr. Brinkman has failed to state a claim because he failed to exhaust his administrative remedies. Whether Title III imposes such a requirement is a disputed subject. In an unpublished opinion, the Third Circuit has plainly stated that "Title III does not require the exhaustion of state remedies. . . ." By contrast, the United States District Court for the District of Colorado has stated that "Congress has imposed a state law exhaustion requirement on individuals seeking to enforce their rights under Subchapter III of the ADA."
Burkhart v. Widener University, Inc., 70 Fed. Appx. 52, 54 (3d Cir. 2003).
Howard v. Cherry Hills Citters, Inc., 935 F. Supp. 1148, 1149-50 (D. Colo. 1996).
This dispute is caused by the odd remedy provision found in Title III of the ADA. Title III of the ADA is patterned after Title VII. Indeed, Congress specifically provided that the "`remedies and procedures set forth in section 2000a-3(a) of [Title VII] are the remedies and procedures this subchapter provides to any person who is being subject to discrimination on the basis of disability. . . .'" But under Title VII, the remedies set forth in section 2000a-3(a) are subject to some limitations not found in 2000a-3(a). At issue in this case is the limitation found in section 2000a-3(c) which provides:
Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir. 2000) (quoting 42 U.S.C. § 12188(a)).
[N]o civil action may be brought under subsection (a) of [§ 2000a-3] before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.
In other words, before a plaintiff who brings suit under Title VII is entitled to any of the remedies found in 2000a-3(a), they must provide written notice to the appropriate state or local agency as provided for in 2000a-3(c).
Must an ADA Title III complainant do the same? The courts are almost evenly split on the issue. The Ninth Circuit, however, believes the answer is simple. Title III specifically incorporates section 2000(a)-3(a) and makes no mention of 2000a-3(c). The inclusion of one and the exclusion of the other, according to the Ninth Circuit, must be presumed intentional. Therefore, according to the Ninth Circuit, Title III does not require a complainant to comply with 2000a-3(c) before a remedy is available. This simple answer had apparently eluded the courts who addressed the issue before the Ninth Circuit and had split evenly concerning the apparently unambiguous language. But, as stated above, the Third Circuit agreed with the Ninth Circuit. No other Circuit has ruled on the issue.
See id. at 831 (citing cases).
Id.
Burkhart v. Widener University, Inc., 70 Fed. Appx. 52, 54 (3d Cir. 2003).
Most of the cases supporting incorporation of 2000a-3(c) do so without elaboration. But, although overruled by the Ninth Circuit's eventual resolution of the issue, one case from the United States District Court for the District of Nevada did thoroughly review the issue and concluded that notice and exhaustion requirements of 2000a-3(c) do limit the remedies available in the ADA context under 2000a-3(a). After concluding that the plain language of the ADA supported both interpretations, the court looked to the legislative history and found that
See e.g., Howard v. Cherry Hills Citters, Inc., 935 F. Supp. 1148, 1149-50 (D. Colo. 1996); Daigle v. Friendly Ice Cream Corp., 957 F. Supp. 8 (D.N.H. 1997).
Mayes v. Allison, 983 F. Supp. 923 (D. Nev. 1997).
the "Joint Explanatory Statement of the Committee of Conference" demonstrates an intent to adopt the entirety of 42 U.S.C. 2000a as the ADA's enforcement mechanism. Specifically, the House Amendment ultimately adopted by Congress "specifies that the remedies and procedures of Title II of the 1964 Civil Rights Act" shall be the remedies and procedures for enforcement of 42 U.S.C. 12182. This implies that Congress intended for all of Title II of the 1964 Civil Rights Act (i.e., 42 U.S.C. 2000a), and not just one subsection, to apply to such enforcement actions.
The defendants suggest that this court should be guided by the Tenth Circuit's decision in McBride v. Citgo Petroleum Corp. where the court stated without distinguishing between Title I, Title II, or Title III of the ADA that "[e]xhaustion of remedies under the Americans with Disabilities Act . . . is a jurisdictional prerequisite to suit in the Tenth Circuit." McBride, however, was a Title I case involving an employer's failure to make reasonable accommodations for a disabled employee. McBride has never been cited for the proposition that exhaustion of remedies is required in a Title III case, which involves a member of the public suing a public accommodation for discrimination. Moreover, Title I incorporates different remedial and procedural provisions than Title III, including provisions requiring employees to go through EEOC procedures before filing suit. Those provisions are not a part of Title III. So in the end, the court is really left with no guide at all other than the language of the statute.
McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1105 (10th Cir. 2002).
While it is clear that reasonable persons can disagree about whether Title III incorporates only 2000a-3(a), or includes the limitations in 2000a-3(c) as well, this court holds that 2000a3-(c) is not a part of Title III of the ADA for the simple reason that it is not explicitly incorporated. While the legislative history may suggest that Congress intended otherwise, the subjective intentions of Congress should not, and do not, prevail over the actual text of the legislation which was passed. "Unless the plain language of the statute would produce a result demonstrably at odds with the intention of its drafters, the court must give effect to the clear meaning of the statute as written." If Congress which to impose the notice and exhaustion requirement of 2000a-3(c) on Title III claims, it was free to do so. Congress did not do so, and so this court concludes that there is no notice and exhaustion requirement in Title III of the ADA.
Starzynski v. Sequoia Forest Indus., 72 F.3d 816, 820 (10th Cir. 1995).
2. Failure to Request an Accommodation
Defendants next move for summary judgment on the basis that Mr. Brinkman does not allege in his complaint that he requested a reasonable accommodation to allow him to participate in the Hobble Creek Half Marathon. The Fifth Circuit has held that "[t]he plaintiff has the burden of proving that a modification was requested and that the requested modification was reasonable." The First Circuit has also stated that Title III "requires a person with a disability to request a reasonable and necessary modification, thereby informing the operator of a public accommodation about the disability." This court therefore holds that except where such a request would be a "useless act," the plaintiff must show that the request for a reasonable accommodation was made.
Johnson v. Gambrinus Co., 116 F.3d 1052, 1059 (5th Cir. 1997).
Dudley v. Hannaford Bros. Co., 333 F.3d 299, 309 (1st Cir. 2003).
MX Group, Inc. v. City of Covington, 293 F.3d. 326, 344 (6th Cir. 2002).
In this case, the complaint sufficiently alleges that Mr. Brinkman requested and was denied an accommodation which would have allowed him to participate in the race. The complaint alleges that Mr. Brinkman had participated in the past and wanted to continue to participate and made his objections known over some period of time. The complaint further alleges that Mr. Brinkman was given various excuses as to why he could not participate, including the lack of a wheelchair division and the lack of transportation to get him to the starting point. At each turn Mr. Brinkman suggested some accommodation which would have allowed him to race, but his requests were refused. The complaint, therefore, sufficiently alleges that Mr. Brinkman requested an accommodation with enough specificity to survive a motion to dismiss.
3. Failure to Request a Reasonable Accommodation
The final issue raised is whether the requested accommodation was reasonable and would not fundamentally alter the nature of the public accommodation or impose undue financial or administrative burdens. Title III "contemplates three inquiries: whether the requested modification is `reasonable,' whether it is `necessary' for the disabled individual, and whether it would `fundamentally alter the nature of' the competition." Each of these questions poses a factual issue which is not appropriate for determination on a motion to dismiss.
PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n. 38 (2001).
CONCLUSION
The defendants motion to dismiss is DENIED. The complaint does not fail to state a cause of action. The court makes no determination about whether the Hobble Creek Half Marathon is a "public accommodation" covered by the ADA, whether a requested accommodation was in fact made, whether the requested accommodation was reasonable, necessary, and would not fundamentally alter the nature of the marathon. These questions will be better addressed by a future motion or by a finder of fact.
There is considerable disagreement among various courts over the important issue of whether Title III of the ADA requires notice and exhaustion of state remedies. In light of this fact, if the defendants wish to immediately pursue that issue in the Tenth Circuit, the court would entertain an appropriate motion pursuant to 28 U.S.C. § 1292(b). Such a motion must be filed within fourteen days after entry of this order.