Gustafson v. Bi-State Dev. Agency of the Mo.-Ill. Metro. Dist.

• Decision Date: 28 March 2022
• Docket Number: No. 20-3046,20-3046
• Citation: 29 F.4th 406
• Parties: Scott GUSTAFSON, Plaintiff - Appellant v. BI-STATE DEVELOPMENT AGENCY OF the MISSOURI-ILLINOIS METROPOLITAN DISTRICT, doing business as Metro, doing business as Metro Transit, doing business as Metrobus, doing business as Metrolink, Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

29 F.4th 406

Scott GUSTAFSON, Plaintiff - Appellant

v.BI-STATE DEVELOPMENT AGENCY OF the MISSOURI-ILLINOIS METROPOLITAN DISTRICT, doing business as Metro, doing business as Metro Transit, doing business as Metrobus, doing business as Metrolink, Defendant - Appellee

No. 20-3046

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2021

Filed: March 28, 2022

Cyrus Dashtaki, Dashtaki Law Firm, Saint Louis, MO, Jason M. Finkes, Law Office of Jason M. Finkes, Clayton, MO, for Plaintiff-Appellant.

Rex Patrick Fennessey, James N. Foster, Jr., Brian C. Hey, McMahon & Berger, Saint Louis, MO, for Defendant-Appellee.

Bridget Anne Clarke, Andrew J. Dhuey, Berkeley, CA, for Amici Curiae Disability Rights Education & Defense Fund, National Disability Rights Network.

Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

In this action brought under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794, Scott Gustafson appeals following the district court's¹ adverse grant of summary judgment in favor of Bi-State Development ("Bi-State"). The district court dismissed Gustafson's claims, finding that some of his claims and arguments were barred by the doctrine of judicial estoppel, that his claim regarding MetroBus drivers not stopping for him at a bus stop was barred by a previous settlement agreement between the Missouri Commission on Human Rights ("the Commission") and Bi-State, and his occasional problems with MetroBus drivers do not establish a violation of the ADA. We affirm.

I. BACKGROUND

Bi-State is a government entity that provides public rail, bus, and paratransit services in Missouri and Illinois pursuant to an interstate compact. Gustafson has relied on Bi-State's fixed-route bus and rail service as his primary mode of transportation in the St. Louis metropolitan area since 1997. Although Gustafson is blind, he can independently use Bi-State's public transportation system with the assistance of his guide dog or a cane. By his own estimate, Gustafson typically used the Bi-State bus system between 30 to 100 times, and the rail system between 20 to 50 times, in any given year.

In November 2006, Gustafson filed a complaint with the Commission alleging Bi-State denied him access to its services in violation of the Missouri Human Rights Act ("MHRA"). As provided by statute, the Commission commenced administrative proceedings against Bi-State on Gustafson's behalf. Gustafson elected not to intervene in the proceedings, which ended in a 2011 settlement agreement ("Agreement") between the Commission and Bi-State. By its terms, the Agreement signaled Bi-State's commitment to improve access across, among other things, its technology, fare collection, internet publications, and signage. The Agreement purported to resolve "any and all charges, claims, suits, demands, damages, ... and causes of action ... arising out of, related to or based upon any fact(s) or event(s) which occurred on or prior to the date" of the Agreement. Even though Gustafson refused to participate in the Agreement, he did not seek judicial review of its terms.

Gustafson filed a second complaint with the Commission in April 2014, which he later amended in November 2014, alleging that Bi-State bus drivers discriminated against him based on his disability when they drove past him on three specific occasions: December 26, 2013; June 13, 2014; and August 5, 2014 (the "drive-by claims"). Unlike his earlier complaint, this time Gustafson sought a right-to-sue letter, which the Commission issued on November 30, 2015.

Gustafson originally filed the instant lawsuit in the Circuit Court of the City of St. Louis, alleging discrimination violations under the MHRA. Bi-State removed the case to federal court after Gustafson added new claims under the ADA and the Rehabilitation Act. The district court determined that Bi-State was not subject to the MHRA at the time of Gustafson's allegations and dismissed the MHRA claims.² After Gustafson filed his Fourth Amended Complaint, Bi-State moved for judgment on the pleadings asserting, among other things, the suit was an improper attempt to enforce certain federal transportation regulations through a private right of action. In response, Gustafson stated both in his brief and at the hearing that he "did not seek to vindicate a private right of action to enforce such regulations," but rather the presence of any regulatory violation in the complaint was included as evidence of intentional discrimination. The district court denied Bi-State's motion and, based on the assurances that Gustafson was not pursuing a private right of action under the regulations, prohibited Gustafson from asserting such a private right of action at trial.

In January 2020, the parties filed cross-motions for summary judgment. Bi-State raised two primary arguments: (1) Gustafson's claims were barred by the terms of the Agreement; and (2) Gustafson was not denied meaningful access to Bi-State's services. Gustafson sought summary judgment on the issue of liability, claiming Bi-State: (1) unlawfully discriminated against him by depriving him of meaningful access as proscribed by both the federal statutes and regulations; and (2) discriminated against and segregated him by failing to provide paratransit services in a manner consistent with the statutes and regulations. Gustafson re-asserted the drive-by claims as evidence of Bi-State's discrimination.

The district court granted summary judgment in favor of Bi-State on all claims. The court concluded that judicial estoppel barred Gustafson's allegations arising out of the regulations and, even in the absence of estoppel, the statutory text did not create a private right of action to enforce those regulations. The district court refused to consider Gustafson's paratransit segregation claim because he did not seek to amend the complaint to add the claim prior to summary judgment. Finally, the district court held the drive-by claims were barred by the terms of the Agreement and, alternatively, that summary judgment was appropriate because the drive-by claims are insufficient as a matter of law to establish a denial of meaningful access. Gustafson appeals.

II. DISCUSSION

A. Judicial Estoppel

We review the district court's application of judicial estoppel for abuse of discretion, including in the summary judgment context. Stallings v. Hussmann Corp., 447 F.3d 1041, 1046 (8th Cir. 2006). "[W]e will not overturn a district court's discretionary application of the judicial estoppel doctrine ‘unless it plainly appears that the court committed a clear error of judgment in the conclusion it reached upon a weighing of the proper factors.’ " Id. at 1046–47 (quoting Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 32 (1st Cir. 2004) ).

Whenever a party takes a position in a legal proceeding and succeeds in maintaining that position, the doctrine of judicial estoppel operates to prevent that party from later assuming a contrary position. Scudder v. Dolgencorp, LLC, 900 F.3d 1000, 1006 (8th Cir. 2018). We consider three non-exhaustive factors in determining whether the doctrine is applicable: "(1) whether a party's later position is clearly inconsistent with its earlier position; (2) whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that the court was misled; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the party if not estopped." Opportunity Fin., LLC v. Kelley, 822 F.3d 451, 456 (8th Cir. 2016). In contrast, judicial estoppel does not apply when the prior position arose out of "a good-faith mistake rather than as part of a scheme to mislead the court." Stallings, 447 F.3d at 1049 (quotation omitted).

On the facts of this case, all three factors weigh in favor of judicial estoppel. First, Gustafson's position on summary judgment is inconsistent with the position he took on Bi-State's motion for a judgment on the pleadings. At the November 12, 2019, motion hearing Gustafson's counsel unequivocally stated: "The regs do not provide a private right of action." In his corresponding brief, Gustafson stated he "did not seek to vindicate a private right of action to enforce such regulations." These statements are inconsistent with Gustafson's subsequent position that there is a private right of action. See United States v. Hamed, 976 F.3d 825, 829 (8th Cir. 2020).

The second factor also weighs in favor of estoppel. At the motion hearing, Gustafson persuaded the district court that he was not pursuing a private right of action under the federal regulations. In denying Bi-State's motion for judgment on the pleadings, the district court expressly accepted Gustafson's position, stating it had "no need to address whether Gustafson has a right to privately enforce federal regulations." Because the Fourth Amended Complaint alleged that Bi-State was liable for failing to comply with the regulations, acceptance of Gustafson's statement to the contrary would lead to a perception that the court had been misled.

Finally, allowing Gustafson to take an inconsistent position would give him an unfair advantage in the litigation. Gustafson failed to object to the order on Bi-State's motion for judgment on the pleadings that expressly stated: "Gustafson will not be permitted to raise at trial Bi-State's alleged failure to comply with federal regulations as claims pursuant to the ADA or the Rehab Act." To later permit Gustafson to assert a private right of action under the regulations would present an entirely different trial for Bi-State to defend, after the close of discovery and relying on the district court's order indicating that these issues were off the table. We find no abuse of discretion in applying judicial...