Childress v. Fox Assocs., LLC
| Decision Date | 18 April 2018 |
| Docket Number | Case No. 4:16 CV 931 CDP |
| Parties | MARIA C. CHILDRESS, a/k/a Tina Childress, et al., Plaintiffs, v. FOX ASSOCIATES, LLC, d/b/a Fabulous Fox Theatre, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Title III of the Americans with Disabilities Act (ADA) prohibits owners and operators of places of public accommodation such as the Fabulous Fox Theatre from discriminating on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(a). Such places are prohibited from affording people with disabilities "the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals," id. § 12182(b)(1)(A)(ii); and are required to provide "auxiliary aids and services" as may be necessary to "ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals," id. § 12182(b)(2)(A)(iii). A public accommodation must provide appropriate auxiliary aids and services to ensure "effective communication" with individuals with disabilities. 28 C.F.R. § 36.303(c)(1).
Plaintiffs Maria C. "Tina" Childress and Mary Stodden are deaf individuals who each have cochlear implants that allow them to function adequately under ideal circumstances. Even with this assisted hearing, however, the nature of their hearing impairment prevents them from understanding the dialogue and lyrics of live theater. Neither plaintiff knows or uses American Sign Language (ASL). And, because of the nature of their hearing loss, volume-enhancing devices do not aid in their ability to hear. Childress and Stodden are members of the Association of Late Deafened Adults (ALDA) and the Greater St. Louis Chapter of the Hearing Loss Association of America (HLAA-StL), non-profit organizations who support and advocate for persons with hearing loss. Each organization has members who have attended performances at the Fox. ALDA and HLAA-StL are also named as plaintiffs and proceed in this action on behalf of its members. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 342-43 (1977) ().
Plaintiffs allege that, because the full and equal enjoyment of the Fox Theatre includes the ability to understand the dialogue and lyrics of live theater during Broadway-type performances, effective communication for those who cannot hear what is being said or sung requires hands-free, line-of-sight captioning.Plaintiffs further argue that, by providing captioning for only certain performances and not all scheduled performances, the Fox Theatre provides services, privileges, advantages, and accommodations to deaf Fox patrons that are not equal to those afforded hearing patrons, and thus that they are treated differently from hearing patrons, in violation of 42 U.S.C. §§ 12182(b)(1)(A)(ii) and 12182(b)(2)(A)(iii).
In their complaint, plaintiffs seek injunctive relief, and specifically that Fox Theatre be ordered to: 1) provide open or closed captioning at all performances of theatrical productions; 2) publicize the availability of captioning and provide means to request captioning; 3) enable persons to purchase tickets to captioned performances by non-telephonic means, including by electronic mail; and 4) provide hands-free, line-of-sight captioning devices. In their motion for summary judgment, plaintiffs clarify that they ask for Fox Theatre to provide captioning only when requested. They make an additional request in their motion, however, that Fox Theatre be ordered to establish a procedure for it to consider and respond to customer feedback about captioning.
Both sides have moved for summary judgment.
Summary judgment must be granted when the pleadings and proffer of evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). I must view the facts in the light most favorable to the nonmoving party, "but only 'if there is a genuine dispute as to those facts.'" RSA 1 Ltd. P'ship v. Paramount Software Assocs., Inc., 793 F.3d 903, 906 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042).
The parties agree that the relevant facts are not in dispute, but each side argues that the law as applied to those facts requires that judgment be entered in their respective favor. For the following reasons, plaintiffs are entitled to judgment as a matter of law on their claims of discrimination. They are not legally entitled, however, to all of the relief they seek. I will therefore grant their motion for summary judgment and enter the relief to which they are entitled under the law. Defendant's motion for summary judgment will be denied.
The Fox Theatre is a 4500-seat indoor theater and stage venue. It provides a wide range of accommodations for guests with disabilities and provides information regarding these accommodations on its public website.
In April 2016, plaintiff Childress contacted Fox Theatre to request captioning for Rent, a Broadway production scheduled to perform at the Fox in May 2017. Fox responded that it had no plan to provide captioning. Childress's counsel thereafter sent a letter to Fox regarding the ADA's requirement forcaptioning, but the letter went unanswered. Childress then filed this lawsuit in June 2016.
After the lawsuit was filed, and after negotiations and discussions among the parties, Fox agreed to provide prescheduled captioning for one performance of some of its Broadway productions, provided that captioning was requested two weeks in advance of that prescheduled performance.1 Captioning for these Broadway shows is typically prescheduled for a single Saturday matinee performance of each show. Fox publicizes this information on its website. For non-Broadway special events, Fox does not indicate whether captioning is available.
Closed captioning was provided to Childress on a handheld device during the May 20, 2017, performance of Rent. Because it was a handheld device, Childress had to either hold it up to provide line-of-sight viewing, or set it on her lap, which required her to look away from the performance to read the captioning. Fox also provided closed captioning on five other occasions - for Mama Mia on July 29, 2017; The Bodyguard on October 14, 2017; On Your Feet on November 18, 2017; The King and I on December 9, 2017; and School of Rock on January 21, 2018. Fox prescheduled the closed-captioned performance of School of Rock for January 27, 2018, but because Childress was unable to attend that performance,Fox provided closed captioning on that earlier date, January 21, when Childress could attend. Fox continued in its plan to provide closed captioning at the January 27 performance.
Fox has six personal devices/tablets available for use by guests to view the captions during each captioned show. Fox provides device holders for these tablets but restricts their use to certain seats and rows that are wheelchair compatible. Fox does not affix device holders to other seats or in other rows because the St. Louis City Fire Marshal considers this condition to be a fire hazard. A patron may use a handheld device from any seat in the theater.
When Fox provided closed captioning on January 21 at Childress's request - a date that was not prescheduled for closed captioning - Fox advised Childress that it was making an "exception to [its] policy" "on this one occasion" and that future requests for captioning for non-prescheduled performances would be evaluated on a case-by-case basis and not always granted. For two season ticketholders who requested captioning service, Fox exchanged their tickets so they could attend the Saturday matinee performances that were prescheduled for captioning.
Plaintiff Stodden did not attend any performance at the Fox in 2016 or 2017, nor did she request captioning at any performance at the Fox in 2016 or 2017. She was unable to attend the prescheduled captioned performance of Rent.
Title III of the ADA provides that "[n]o 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[.]" 42 U.S.C. § 12182(a). Theaters, concert halls, and other places of entertainment are "public accommodations." 42 U.S.C. § 12181(7)(C).
Discrimination under Title III of the ADA occurs when a public accommodation provides disabled individuals with an opportunity to participate in or benefit from its goods, services, facilities, privileges, advantages, or accommodations, but that opportunity is not equal to that afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). The ADA focuses on the equal opportunity to participate in obtaining and using services, not merely on the quality of the service or its outcome. Id.; Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 834 (11th Cir. 2017). See also Argenyi v. Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013) ().
Because one purpose of the ADA is to remedy the discriminatory effect of communication barriers faced by individuals with communication disabilities, suchas hearing impairments, see 42 U.S.C. § 12101(a)(5), discrimination occurs when a public accommodation fails "to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied...
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