264 F.3d 999 (10th Cir. 2001), 00-1303, Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I

Docket Nº:00-1303
Citation:264 F.3d 999
Party Name:COLORADO CROSS DISABILITY COALITION, Plaintiff, and KEVIN W. WILLIAMS, for himself and all others similarly situated, Plaintiff-Appellant, v. HERMANSON FAMILY LIMITED PARTNERSHIP I, Defendant-Appellee, and ANN TAYLOR, INC.; NINE WEST GROUP, INC., Defendants. Page 1000 UNITED STATES OF AMERICA, Amicus Curiae.
Case Date:August 29, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 999

264 F.3d 999 (10th Cir. 2001)

COLORADO CROSS DISABILITY COALITION, Plaintiff,

and

KEVIN W. WILLIAMS, for himself and all others similarly situated, Plaintiff-Appellant,

v.

HERMANSON FAMILY LIMITED PARTNERSHIP I, Defendant-Appellee,

and

ANN TAYLOR, INC.; NINE WEST GROUP, INC., Defendants.

Page 1000

UNITED STATES OF AMERICA, Amicus Curiae.

No. 00-1303

United States Court of Appeals, Tenth Circuit

August 29, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 96-WY-2490-AJ)

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Amy F. Robertson (Timothy P. Fox with her on the brief), of Fox & Robertson, Denver, Colorado, for Plaintiff-Appellant.

Martin D. Beier (Joe L. Silver with him on the brief), of Silver & DeBoskey, Denver, Colorado, for Defendant-Appellee.

Bill Lann Lee, Assistant Attorney General, Jessica Dunsay Silver and Thomas E. Chandler, Attorneys, United States Department of Justice, Washington, D.C., filed a brief on behalf of the Amicus Curiae.

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Hermanson Family Limited Partnership I owns certain commercial buildings in Larimer Square, an historic block of shops and restaurants located in downtown Denver, Colorado. Plaintiff Kevin W. Williams is a Denver attorney who, as a result of a spinal cord injury, is paralyzed from the chest down and uses a power wheel chair for mobility. Since he moved to Denver around 1990, Plaintiff Williams has visited Larimer Square frequently. On his trips to Larimer Square, Plaintiff Williams noticed that architectural barriers prevented him from accessing many of the stores. Specifically, a 5.5 inch iron stoop at the entrance to the Crawford Building, owned by Defendant, prevents wheelchair access. In addition, the door to the store is recessed from the storefront and adds another barrier to wheelchair access of one to three inches.

In 1996, Plaintiff Williams and his employer, the Colorado Cross Disability Coalition, filed four separate lawsuits in the federal district court against Defendants under Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181 thru 12189, and the Colorado Anti-Discrimination Act, Colo. Rev. Stat. §§ 24-34-601 thru 24-34-605. In their suits, Plaintiffs asked the district court to compel Defendants to install ramps at four locations in Larimer Square.1 The district court consolidated the cases for both discovery and trial.

The consolidated cases proceeded to a bench trial. At the close of Plaintiff's case, the district court granted Defendants' motions for judgment as a matter of law, see Fed. R. Civ. P. 52(c), concluding that Plaintiff failed to establish that removal of architectural barriers at the four locations was readily achievable. Plaintiff appeals the district court's ruling as to only one of the four locations, the Crawford Building. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's grant of a motion for judgment as a matter of law, construing the evidence and inferences therefrom in the light most favorable to the nonmoving party. Shaw v. AAA Eng'g & Drafting, Inc., 213 F.3d 519, 529 (10th Cir. 2000). Applying this standard, we affirm.

I.

Title III of the ADA prohibits discrimination against persons with disabilities in places of public accommodation. 42 U.S.C. § 12182(a). The ADA provides a private right of action for preventative relief, including an application for a permanent or temporary injunction or restraining order

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for "any person who is being subjected to discrimination on the basis of disability in violation of" Title III. Id. §§ 12182(a)(1), 2000a-3(a). A successful plaintiff may also be entitled to attorney fees and costs. Id. § 2000a-3(b). Section 12182(a) provides: "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." Id. § 12182(a). Under Title III of the ADA, "discrimination" specifically includes "failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable." Id. § 12182(b)(2)(A)(iv).2

The ADA defines "readily achievable" as "easily accomplishable and able to be carried out without much difficulty or expense." Id. § 12181(9). The ADA further sets out several factors to be considered in determining whether removal of architectural barriers is readily achievable: (1) nature and cost of the action; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. Id. § 12181(9)(A)-(D); see also First Bank Nat'l Ass'n v. FDIC, 79 F.3d 362, 370 n.8 (3d Cir. 1996).

Title III of the ADA, however, remains silent as to who bears the burden of proving that removal of an architectural barrier is, or is not, readily achievable. See Pascuiti v. New York Yankees, No. 98 CIV. 8186(SAS), 1999 WL 1102748, at *1 (S.D.N.Y. Dec. 6, 1999) (unpublished). Plaintiff argues that subsection (iv), when read in conjunction with subsection (v), places the burden on Defendant to prove the proposed architectural barrier removal is not readily achievable. Subsection (v) states that discrimination includes, "where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable." 42 U.S.C. § 12182(b)(2)(A)(v) (emphasis added). Subsection (v) clearly contemplates that the entity, rather than the plaintiff, bears the burden to demonstrate that barrier removal under subsection (iv) is not readily achievable. Read together, subsections (iv) and (v) provide an affirmative defense for an entity. Accordingly, we conclude Plaintiff must initially present evidence tending to show that the suggested method of barrier removal is readily achievable under the particular circumstances. If Plaintiff does so, Defendant then bears the

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ultimate burden of persuasion that barrier removal is not readily achievable under subsection (iv).3

Placing the burden of persuasion on Defendant to prove the affirmative defense that barrier removal is not readily achievable is consistent with the remaining subsections of Title III. Section 12182(b)(2)(A)(i) provides that discrimination includes the imposition of eligibility criteria that "screen out" or "tend to screen out" individuals with disabilities unless the eligibility criteria can be shown to be necessary.4 Several district courts have placed the burden of showing that the eligibility criteria are necessary on the proponent of such criteria. See Hahn ex rel. Barta v. Linn County, Iowa, 130 F.Supp.2d 1036, 1055 (N.D. Iowa 2001) ("Eligibility criteria that 'screen out' or 'tend to screen out' disabled individuals violate the ADA unless the proponent of the eligibility criteria can show that the eligibility requirements are necessary."); Bowers v. NCAA, 118 F.Supp.2d 494, 518 (D.N.J. 2000) (same), opinion amended on reargument, 130 F.Supp.2d 610 (D.N.J. 2001); Guckenberger v. Boston Univ., 974 F.Supp. 106, 134 (D. Mass. 1997) ("[P]ublic entities cannot use eligibility criteria that screen out or tend to screen out individuals with disabilities unless they can show that the criteria are necessary.").

Similarly, sections 12182(b)(2)(A)(ii) and (iii) provide an affirmative defense for an entity to demonstrate that compliance would fundamentally alter the nature of the goods and services provided.5 Consequently, the entity bears the burden of persuasion regarding fundamental alteration and undue burden. See Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997) (under subsection (ii) modification claim, defendant bears "burden of proving that the requested modification would fundamentally alter the nature of the public accommodation"); Mayberry v. Von Valtier, 843 F.Supp. 1160, 1166 (E.D. Mich. 1994) (shifting burden of proof to defendant in subsection (iii) case).

In Johnson, 116 F.3d at 1059, the Fifth Circuit addressed the burden of proof in a § 12182(b)(2)(A)(ii) reasonable modification

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claim. The court held that the plaintiff bears the burden of proving that a modification was requested and that the requested modification was reasonable. Id. Once the plaintiff meets the burden of showing that an accommodation is reasonable in the general sense, the court held the defendant must make the requested accommodation unless defendant pleads and meets its burden of proving that the requested accommodation would fundamentally alter the nature of the public accommodation. Id. The plaintiff bears the ultimate burden of proof on the issue of reasonableness, while the defendant bears the burden of proving the requested accommodation would fundamentally alter the nature of the public accommodation. Id.

Several district courts have adopted Johnson's allocation of the burden of proof in subsection (ii) cases. See Dahlberg v. Avis Rent A Car Sys., Inc., 92 F.Supp.2d 1091, 1105-06 (D. Colo....

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