Greer v. Richardson Indep. Sch. Dist.

• Decision Date: 02 August 2010
• Docket Number: Civil Action No. 3:08–CV–160–M.
• Citation: 752 F.Supp.2d 746
• Parties: Leslie GREER, Plaintiff,v.RICHARDSON INDEPENDENT SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Northern District of Texas

752 F.Supp.2d 746

Leslie GREER, Plaintiff,

v.RICHARDSON INDEPENDENT SCHOOL DISTRICT, Defendant.

Civil Action No. 3:08–CV–160–M.

United States District Court, N.D. Texas, Dallas Division.

Aug. 2, 2010.

Palmer D. Bailey, Law Office of Palmer Bailey, Addison, TX, Kenneth D. Carden, The Carden Law Office, Dallas, TX, for Plaintiff.Bridget Robinson, Adrienne Rene Butcher, Walsh Anderson Brown Aldridge & Gallegos, PC, Austin, TX, Joe R. Tanguma, Walsh Anderson Brown Schulze & Aldridge, Irving, TX, for Defendant.

MEMORANDUM OPINION AND ORDERBARBARA M.G. LYNN, District Judge.

Before the Court are Defendant's Motion to Exclude the Testimony of Plaintiff's Expert Witnesses [Docket Entry # 81], Defendant's Motion for Summary Judgment [Docket Entry # 83], Plaintiff's Third Motion for Summary Judgment [Docket Entry # 85], and Plaintiff's Motion for Sanctions and to Strike Undue Financial Burden Defense [Docket Entry # 98]. For the reasons explained below, Defendant's Motion to Exclude is DENIED, Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part, Plaintiff's Third Motion for Summary Judgment is DENIED in part and GRANTED in part, and Plaintiff's Motion for Sanctions and to Strike is DENIED.¹ Plaintiff's letter request to the Court seeking a hearing on its Motion for Sanctions is DENIED as moot. A portion of Plaintiff's claims is DISMISSED for lack of standing. The Court also reserves, as explained below, its decision on a certain portion of the parties' cross-Motions for Summary Judgment pending a further filing from the parties.

BACKGROUND FACTS AND PROCEDURAL HISTORY

On October 4, 2007, Plaintiff Leslie Greer, who uses a wheelchair, attended her son's junior varsity football game at Berkner High School. The stadium in which the football game was held (the “Berkner B Field”) had no accessible handicapped seating in its bleachers, so Greer watched the game from a concrete walkway in front of the bleachers, behind a chain link fence that separates the bleachers from the track and field.

On February 1, 2008, Greer sued Defendant Richardson Independent School District (the “District”), claiming that the District discriminated against her by excluding her from participation in the benefits, programs and activities of a governmental entity receiving federal assistance, in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (the “ADA”) and the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 and 794a (the “Rehabilitation Act”). The District is a governmental entity of the State of Texas and is subject to the requirements of the ADA, the Rehabilitation Act, and their relevant implementing regulations. Greer seeks a permanent injunction, declaratory relief, damages for violation of her civil rights, and attorneys' fees and costs.

On March 4, 2009, the Court granted leave for the District to amend its answer to assert the affirmative defense of “undue burden,” and reopened discovery as to that limited issue. On July 9, 2009, the Court granted Greer leave to file a Second Amended Complaint, in which Greer expanded her claims to include other portions of Berkner B Field and added new contentions relating to alterations to Berkner B Field.

Both parties now move for summary judgment. The District also moves to exclude the testimony of Greer's expert witnesses, and Greer moves to strike the District's undue burden defense and for sanctions against the District's counsel.

ANALYSIS

I. Standing

The District first alleges that Greer lacks standing to bring her claims. Because a defect in Article III standing is a defect in subject matter jurisdiction, a court must address this threshold issue before reaching the merits of a case.²

The Supreme Court held in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), that “[t]he plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” ³ The Fifth Circuit applies the Lyons standard to claims for injunctive relief under the ADA.⁴ Greer bears the burden of establishing standing.⁵

Greer states in her affidavit that she has twice returned to Berkner B Field since her initial visit in 2007: once to attend a football game that was rained out in October 2009, and once to attend a game there on November 11, 2009.⁶ She also states that, because of her work with No Barriers, Inc., a non-profit organization dedicated to the removal of architectural barriers to the disabled, she will visit Berkner B Field again to see if it “continues to violate the [ADA's] requirements.” ⁷ Greer's affidavit further states that the distance from her house to Berkner B Field is about fifteen miles, that she has friends who have children in the District, and that she “fully expect[s]” to attend events at Berkner B Field in the future. ⁸

Greer's standing to bring suit is questionable; the likelihood that she will attend future events at Berkner B Field is a source of conjecture. The sole reason for Greer's first visit to the stadium no longer exists—her son no longer plays junior varsity football, has just graduated from high school, and resides with Greer in another school district that is no longer aligned in the same sports league as the District.⁹ However, the facts and intentions stated in Greer's affidavit support the conclusion that Greer's return to Berkner B Field is more than speculative or hypothetical, and that she will thereby suffer in the future what she claims is discrimination by the District. ¹⁰ The Court therefore finds that Greer has standing to pursue injunctive relief on her claims.

II. Motion to Exclude Testimony of Plaintiff's Expert Witnesses

The District moves to exclude the testimony of Greer's two expert witnesses as untimely, unqualified and/or unreliable.

Greer retained J. Marshall Weaver, a general contractor, to provide a price quote for modifying the Berkner B Field bleachers to comply with ADA requirements. Weaver's testimony goes to the issue of undue burden. Because the Court does not reach that issue, the Motion to Exclude is DENIED as moot as to Weaver's testimony.

Greer retained Blair Baker to provide a report on the compliance of the facilities at Berkner B Field with technical ADA standards. The Court set an August 8, 2008 deadline for the initial designation of experts. Greer's designation of Baker on August 18, 2009, was therefore untimely. Furthermore, his report appears to be based solely on his ability to read a tape measure and to use a level and a camera, which calls into question his qualification to testify as an expert.¹¹ Nevertheless, the Court will exercise its discretion to allow Baker to testify on the issue of ADA compliance. Baker is a registered accessibility specialist licensed by the Texas Department of Licensing and Regulation, with ten years of experience as a disability access expert.¹² The Motion to Exclude Baker's testimony is DENIED.

III. Cross–Motions for Summary JudgmentA. Standard of Review

Summary judgment is warranted if the pleadings, discovery, disclosure materials, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. ¹³ A genuine issue of material fact exists when a reasonable jury could find for the non-moving party.¹⁴ The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact.¹⁵ Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate, by designating specific facts beyond the pleadings that prove the existence of a genuine issue of material fact.¹⁶ In determining whether genuine issues of material fact exist, “factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists.” ¹⁷ On cross-motions for summary judgment, the court reviews each party's motion independently, construing the evidence and inferences in the light most favorable to the nonmoving party.¹⁸

B. The ADA Standards Applicable to the Berkner B Field ¹⁹

Title II of the ADA provides that “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.” ²⁰ The United States Attorney General is authorized under the statutory language of the ADA to promulgate regulations implementing Title II.²¹ These regulations, known as the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (“ADAAG”), articulate minimum technical requirements for ADA compliance by new construction or alterations to existing facilities.²²

Title II establishes less stringent requirements, however, for “existing facilities,” which include “all or any portion of buildings, structures, sites, complexes ... roads, walks, passageways [and] parking lots” that were in existence at the time of the ADA's enactment on January 26, 1992, and which have not been modified since that date.²³ Berkner B Field, which was constructed in 1968, is an “existing facility” for purposes of the ADA. ²⁴

With respect to such existing facilities, the regulations require a public entity to “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.” ²⁵ However, this “does not ... [n]ecessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities ....” ²⁶ The regulations do not provide...