Bird v. Lewis & Clark College
| Decision Date | 03 September 2002 |
| Docket Number | No. 00-35912.,No. 00-35944.,00-35912.,00-35944. |
| Citation | 303 F.3d 1015 |
| Parties | Arwen BIRD, Plaintiff-Appellant, v. LEWIS & CLARK COLLEGE; Thomas Darrow, PhD; Larry A. Meyers, Defendants-Appellees. Arwen Bird, Plaintiff-Appellee, v. Lewis & Clark College; Thomas Darrow, PhD; Larry A. Meyers, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elizabeth A. Carl, Portland, OR, for the plaintiff-appellant-appellee.
R. Daniel Lindahl, Bullivant, Houser, Bailey, Portland, OR, for the defendants-appellees-appellants.
Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CV-98-00691-ALA.
Before GOODWIN, T.G. NELSON and W. FLETCHER, Circuit Judges.
Arwen Bird ("Bird") appeals the judgment in favor of Lewis & Clark College and a number of school administrators (collectively, "the College"). Bird alleges, among other claims, that the College discriminated against her on the basis of disability, in violation of the Rehabilitation Act ("Rehab Act"), 29 U.S.C. § 794 et seq., and Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm for the following reasons.
Bird was a student of the College when an automobile accident left her confined to a wheelchair. Upon learning of her injury, the College rebuilt parts of the campus to make it more wheelchair-accessible. It installed ramps at Bird's dormitory, changed its inside doors, and remodeled the bathrooms. It also reconfigured the biology labs where she worked.
In the fall of 1994, Bird applied for, and was accepted in, the College's Spring 1996 overseas program. The program was field-based and required participants to spend much of their time exploring the Australian continent. After accepting Bird into the program, the College approached Global Education Designs ("Global"), an Australian company making arrangements for the program, and inquired about the possibility of including a student in a wheelchair. Global indicated that the program could be revised to accommodate Bird.
In preparation for the trip, Bird met with Professor Thomas Darrow ("Darrow"), faculty director of the Australia program, and Larry Meyers ("Meyers"), director of the department of overseas programs. Bird described to them her needs for special living accommodations. She also discussed her medical condition, including the need for various antibiotics and anti-inflammatories. Finally, she mentioned some problems she might encounter in outdoor settings. As a result, Bird was informed that she could not participate in several activities due to her disability, but that alternative activities would be arranged.
Bird was otherwise assured that the program would be able to accommodate her disability. In an e-mail to Bird's parents, Darrow explained that Global and Meyers "commonly handle people both in the field and in home stays that are more physically challenged than [Bird]." Darrow further assured them that adequate facilities would be available in most of the outdoor trips.
Not every aspect of the program conformed to her requirements. At some 22 locations, Bird did not have full wheelchair access. Bird's first set of complaints is related to her lodgings. In Sydney, Bird could not enter or leave her dormitory without assistance because of a steep curb to the sidewalk and a steep ramp. She also could not use the shower or the toilet unless someone assisted her. While staying at Jervis Bay, Bird needed assistance accessing the bathroom from her bedroom because the open ground between them was uneven and obstructed. The bathrooms in Canberra were not fully wheelchair-accessible, and she had to be carried up several stairs in order to reach the cafeteria. At Stradbroke Island, where Bird had been assured that the lodgings would be wheelchair-accessible, Bird found that access to her bedroom involved a stairway, and the doorway for the stalls in the bathroom was too narrow for her wheelchair. At the Coconut Beach Resort, she stayed at a lodging that was not wheelchair-accessible.
Bird also could not participate in a number of outdoor activities because of her disability. She could not join a tour exploring the tide pools at Jervis Bay, or complete a hike at Lamington Plateau. She skipped a three-hour morning boat tour of Stradbroke Island because she would have to use the bathroom during the tour. She did not hike at Carnarvon Gorge because it involved multiple stream crossings, and the group leader did not want Bird to jeopardize the safety of herself and others by participating. At Rubyvale, Bird could not go mining because the mine shaft involved a vertical drop.
Finally, Bird complains that transportation was not wheelchair-accessible, and that she had to be carried onto a bus heading from Jervis Bay to Canberra, and again from Brisbane to Lamington Plateau.
Although not every aspect of the program conformed to Bird's needs, the College offered evidence of having accommodated her disability. First, it provided Bird with alternative modes of transportation: it paid for her use of taxis in Sydney, and for her flight from Canberra to Brisbane while other class members used buses and trains. It arranged for a wheelchair-accessible van to transport her around Stradbroke Island.
The College also tried to satisfy Bird's unique living requirements. It paid two students enrolled in the program to be her helpers. It purchased a sleeping cot manufactured to her specifications, and a special shower head for her use. It provided a smaller, narrower wheelchair so that Bird could move indoors when door openings were too narrow for the normal wheelchair.
When Bird complained about her home stay in Brisbane, she was offered, but declined to accept, a different, more fully accessible house. At Jervis Bay, Coconut Beach, Gladstone, Heron Island, and Stradbroke Island, Bird was offered the use of one of two different rooms, one with the rest of the group but not wheelchair-accessible, the other in a separate area and more wheelchair-accessible. In Canberra and Sydney, Global reserved rooms on the ground floor for Bird.
Finally, the College, through its contractor Global, arranged a number of outdoor activities with Bird's disability in mind. At Lamington Plateau, Bird joined the study group working in an area close to a wheelchair-accessible path. She used a raft provided by Global so that she could float in the water and observe coral reefs at Heron Island. The class conducted a rainforest study at Lamington Plateau, based out of a more accessible site than that normally chosen for the study. It also held a pictograph study at Carnarvon Gorge, using a trail that was wheelchair-accessible.
Bird otherwise participated in a number of class activities. She toured the Sydney Harbor, visited an archeological site near the Harbor, and was able to access the classrooms at the University of Sydney. Bird traveled to an aboriginal community at Jervis Bay, and went on excursions at Heron Island, Stradbroke Island, and Carnarvon Gorge National Park. Bird received one A, two C minuses and one D for the semester, and earned the full 16 credits toward her degree in biology.
On May 12, 1998, Bird filed this action against the College, alleging: (1) violation of the Rehab Act, (2) violation of Title III of the ADA, (3) breach of contract, (4) breach of fiduciary duty, (5) defamation, (6) negligence, (7) fraud, (8) negligent misrepresentation, and (9) intentional infliction of emotional distress. All of the claims essentially share one premise: during Bird's stay in Australia, the College discriminated against her on the basis of disability by failing to provide her with wheelchair access.
Both parties moved for summary judgment. The district court granted judgment against Bird on her defamation and intentional infliction of emotional distress claims.
Two claims for equitable relief under the Rehab Act and Title III (collectively, "the Acts") were subsequently tried to the court. The remaining viable claims, including Bird's claim for damages under the Rehab Act, were tried to the jury.
The jury found against Bird on all but the breach of fiduciary duty claim for which it awarded her $5,000. The district court subsequently denied Bird's claims for equitable relief under Title III and the Rehab Act. The district court also denied Bird's motion for a new trial, along with the College's motion for judgment as a matter of law on the breach of fiduciary duty claim. Both parties timely appealed.
Bird contends that, because the failure to provide access in even one instance is disability discrimination under the Acts, the district court erred by denying: (1) her motion for summary judgment on the two claims; (2) equitable relief; and (3) her motion for a new trial. Although Bird appeals the denial of summary judgment, we decline to review the district court ruling after the jury has decided the case. See De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 877-78(9th Cir.2000).
Before we reach the merits of Bird's challenges, we must resolve the threshold issue of standing. In order to satisfy Article III's case or controversy requirement, Bird needs to show that she has suffered an injury in fact, that the injury is traceable to the challenged action of the College, and that the injury can be redressed by a favorable decision. Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir.2001). In the context of declaratory and injunctive relief, Bird must demonstrate that she has suffered or is threatened with a "concrete and particularized" legal harm, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), coupled with "a sufficient...
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