Pascuiti v. New York Yankees, 98 Civ. 8186(SAS).

• Decision Date: 08 December 1999
• Docket Number: No. 98 Civ. 8186(SAS).,98 Civ. 8186(SAS).
• Citation: 87 F.Supp.2d 221
• Parties: James PASCUITI, Joseph Reilly, Walter Rynakso, and Theresa Murphy, Plaintiffs, v. NEW YORK YANKEES, Defendant. United States of America, Plaintiff-Intervenor, v. New York City, New York City Department of Parks and Recreation, and New York Yankees, Defendants.
• Court: U.S. District Court — Southern District of New York

87 F.Supp.2d 221

James PASCUITI, Joseph Reilly, Walter Rynakso, and Theresa Murphy, Plaintiffs, v. NEW YORK YANKEES, Defendant.

United States of America, Plaintiff-Intervenor, v. New York City, New York City Department of Parks and Recreation, and New York Yankees, Defendants.

No. 98 Civ. 8186(SAS).

United States District Court, S.D. New York.

December 8, 1999.

Glenn Colton, Robert Sadowski, Sara Shudofksy, United States Attorney for the Southern District of New York, New York City, for U.S.

Edward Kopelson, Kopelson & Westreich, Morristown, NJ, for James Pascuiti, Joseph Reilly, Walter Rynasko, and Theresa Murphy.

Richard M. Goldstein, Christopher J. Collins, Lauren Joey Silberfein, Proskauer Rose LLP, New York City, for New York Yankees.

Eric Proshansky, Gail Rubin, Corporation Counsel for City of New York, New York City, for New York City and New York City Department of Parks and Recreation.

MEMORANDUM OPINION

SCHEINDLIN, District Judge.

Plaintiffs James Pascuiti, Joseph Reilly, Walter Rynasko, and Theresa Murphy and plaintiff-intervenor United States of America (collectively the "plaintiffs") have filed suit against New York City and the New York City Department of Parks and Recreation (the "City"), as well as the New York Yankees (the "Yankees"), alleging that the City and the Yankees have violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., New York State Executive Law § 296(2), and New York Human Rights Law § 8-107(4) by failing to make Yankee Stadium (the "Stadium") accessible to individuals with disabilities. On December 2, 1999, this Court made oral rulings in response to several issues raised by the parties. Those rulings are withdrawn and replaced by this amended opinion, which clarifies those rulings and provides additional guidance to the parties.

I. Issues Relating to Title II

The anti-discrimination provision of Title II of the ADA states:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. Title II defines "public entity" to include state and local governments, such as the City. See 42 U.S.C. § 12131(1)(A).¹ The regulations implementing Title II explain the responsibilities of public entities in greater detail:

A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.

28 C.F.R. § 35.150(a). The regulations contain several limitations, one of which provides that § 35.150(a) does not:

[r]equire a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

28 C.F.R. § 35.150(a)(3).

a) Burden of proof

Both the plaintiffs and the City agree that the burden of proof scheme laid out in Borkowski v. Valley Central School District, 63 F.3d 131, 137-40 (2d Cir.1995), applies in this case. Borkowski involved the allocation of the burdens of proving both "reasonable accommodation" and "undue hardship" under section 504 of the Rehabilitation Act:

It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. Once the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant. At this point the defendant's burden of persuading the factfinder that the plaintiff's proposed accommodation is unreasonable merges, in effect, with its burden of showing, as an affirmative defense, that the proposed accommodation would cause it to suffer an undue hardship. For in practice meeting the burden of nonpersuasion on the reasonableness of the accommodation and demonstrating that the accommodation imposes an undue hardship amount to the same thing.

Id. at 138 (citations omitted). Translating this scheme into the Title II context, plaintiffs must: (1) prove that the Stadium, when viewed in its entirety, is not readily accessible to and usable by individuals with disabilities; and (2) suggest a plausible method of making the Stadium readily accessible, the costs of which, facially, do not clearly exceed its benefits. If plaintiffs make out this prima facie case, the City must prove that the proposed method of making the Stadium readily accessible would result in undue financial and administrative burdens.²

b) "When viewed in its entirety"

The City argues that because the regulations state that the service, program, or activity must be readily accessible "when viewed in its entirety," the Court must look at the accessibility of the Stadium as a whole, not at individual elements. The City is correct. The regulations make clear that § 35.150(a) does not "[n]ecessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a)(1). The regulations define "facility" as "all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located." 28 C.F.R. § 35.104. Thus, the City is not required to make each portion of the Stadium readily accessible; the issue is whether the Stadium, when viewed in its entirety, is readily accessible. This is known as the "program access" requirement. See Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services (the "Title II Preamble"), 28 C.F.R. Pt. 35, App. A, at 492 (explaining program access requirement).

The City suggests that, given the program access requirement, plaintiffs must do more than "simply demonstrate the absence of wheelchair seating in one or another discrete locations within the Stadium." The City is correct, to a point. While proving that particular barriers exist might not be sufficient to establish Title II liability, each barrier is a building block for a finding that the Stadium, viewed in its entirety, is not readily accessible. Thus, plaintiffs may demonstrate accessibility barriers in discrete locations as part of their effort to sustain their burden of proof. In addition, the Title II Technical Assistance Manual ("Title II TAM"), prepared by the Department of Justice, makes clear that, even under the program access requirement, accessibility is broadly defined:

When a city holds a public meeting in an existing building, it must provide ready access to, and use of, the meeting facilities to individuals with disabilities. The city is not required to make all areas in the building accessible, as long as the meeting room is accessible. Accessible telephones and bathrooms should also be provided where these services are available for use of meeting attendees.

Title II TAM, at II-5.1000. See Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 45 n. 8 (2d Cir.1997) ("[T]he Department of Justice's manual is given substantial deference unless another reading is compelled by the regulation's plain language.") (citation omitted). Thus, an important part of the program access requirement for the Stadium is whether all services available for the use of non-disabled patrons also are available for use of disabled patrons.³

c) "Undue burden"

Plaintiffs and the City dispute whether the "undue burden" analysis should include the City's overall budget; both argue that it should include the Parks Department's overall budget. Neither the statute nor the regulations provide any guidance as to the scope of the "undue burden" analysis, but two other sources indicate that the relevant budget of the public entity under Title II is the budget for the service, program, or activity at issue. See Title II Preamble, 28 C.F.R. Pt. 35, App. A, at 492 ("In determining whether financial and administrative burdens are undue, all public entity resources available for use in the funding and operation of the service, program, or activity should be considered."); Title II TAM, at § II-5.1000 ("The determination that undue burdens would result must be based on all resources available for use in the program."). Thus, this Court will not consider the City's overall budget as part of its "undue burden" analysis. See Borkowski, 63 F.3d at 139 ("Congress could not have intended the only limit on the employer's duty to make reasonable accommodation to be the full extent of the tax base on which the government entity could draw.").

Both plaintiffs and the City urge the Court to consider the overall budget of the City's Parks Department as part of the "undue burden" analysis. In Olmstead v. Zirming, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), a case cited by both parties, the Supreme Court discussed whether Georgia was required to place persons with mental disabilities in community settings (rather than in institutions) as part of a public entity's obligation to make "reasonable modifications" in its policies, practices, and procedures under Title II of the ADA and 28 C.F.R. § 35.130(b)(7). The Court explained that the "reasonable modification" requirement allowed public entities to resist modifications that would "fundamentally alter" the nature of the service, program, or activity, and that part of the fundamental-alteration component was a cost-based defense. Id. at 2188.

Even though the program at issue in Olmstead was the placement of persons with mental disabilities in either community settings or institutions, the Court looked at the state's overall mental...