Pilling v. Bay Area Rapid Transit

Decision Date25 July 2012
Docket NumberCase No. C–12–02186 JCS.
Citation881 F.Supp.2d 1152
PartiesGregory PILLING, Plaintiff, v. BAY AREA RAPID TRANSIT, Alameda Park Street Bicycles, Inc., a California Corporation dba Alameda Bicycle, and Does 1–10, Defendants.
CourtU.S. District Court — Eastern District of California


Paul Glusman, Attorney at Law, Berkeley, CA, for Plaintiff.

Victoria Rose Nuetzel, S.F. Bay Area Rapid Transit District, Oakland, CA, for Defendants.


JOSEPH C. SPERO, United States Magistrate Judge.


Plaintiff Gregory Pilling (Plaintiff) brings this action against Defendants Bay Area Rapid Transit (BART) and Alameda Park Street Bicycles dba Alameda Bicycle (Alameda Bicycle) (collectively, Defendants), alleging discrimination based on his disability. Presently before the Court is Defendants' Motion to Dismiss (“Motion”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court finds that the Motion is suitable for determination without oral argument pursuant to Civil Local Rule 71(b). Accordingly, the hearing on the Motion set for July 27, 2012 at 9:30 a.m. is VACATED. For the reasons stated below, the Motion is DENIED.1

II. BACKGROUNDA. The Complaint

Plaintiff has had cancer and treatment for cancer and, as a result, had to undergo a colostomy. Complaint ¶ 1. Because of the colostomy, it takes Plaintiff more time than it takes non-disabled people to use a public restroom. Id. Plaintiff worked for the City of Berkeley through a Social Security Disability Insurance “Ticket to Work” program as a street-sweeping foreman. Id. at ¶ 2. Beginning around April 5, 2011, Plaintiff's commute to work consisted of riding his bicycle to BART, taking his bicycle on BART to the Downtown Berkeley BART station, storing his bicycle at the Berkeley Bike Station (“Bike Station”), which is adjacent to the Downtown Berkeley BART station, and then using the bathroom at the Bike Station, where he was a member. Id. Due to Plaintiff's disability, he needed to use the bathroom at the Bike Station for approximately 12 to 18 minutes per day.2Id. However, the Bike Station—a joint venture between BART and Alameda Bicycle—has an inflexible rule that nobody can use the restroom for more than 10 minutes at a time. Id.

Defendants objected to Plaintiff's use of the bathroom for longer than 10 minutes. Id. at ¶ 20. Defendants kept records of how many times Plaintiff exceeded the ten minute rule and “repeatedly harassed him,” warning him on at least five occasions that he was not to use the restroom for more than ten minutes. Id. Plaintiff repeatedly requested, verbally and in writing, that he be allowed a few extra minutes to use the restroom and that this extra time was on account of his being a person with a disability. Id. at ¶ 21. Plaintiff noted that he normally used the restroom at 5:30 in the morning, when nobody else was around to be burdened or inconvenienced. Id.

Nonetheless, on or about September 9, 2011, Defendants revoked Plaintiff's Bike Station membership due to his repeated violation of the ten minute rule. Id. at ¶ 22. Plaintiff's request to reinstate his membership with a “reasonable accommodation” that he be allowed to use the bathroom for longer than ten minutes was denied. Id. at ¶ 23. Because Plaintiff could no longer use the Bike Station to store his bicycle or use its restroom, he could no longer commute to work, causing him to lose his “Ticket to Work” job with the City of Berkeley. Id. at ¶ 24.

On the basis of the factual allegations summarized above, Plaintiff asserts the following six causes of action:

(1) Violation of Title II of the Americans with Disabilities Act of 1990 (“ADA”): Plaintiff alleges that Defendant BART, a public entity, discriminated against him, an individual with a disability, in contravention of 42 U.S.C. § 12132. Id. at ¶¶ 28–29. Plaintiff claims that BART has failed in its responsibilities under Title II of the ADA to provide its services, programs, and activities in a full and equal manner to disabled persons as described above. Id. at ¶ 30. This includes the failure to ensure that the public facilities are accessible to disabled persons and the failure to modify its programs, services, and activities to make them accessible to disabled persons, including Plaintiff. Id. Plaintiff seeks damages, attorney's fees, and injunctive relief. Id. at ¶¶ 31–33. Plaintiff requests an injunction requiring that Defendant BART “take prompt action to modify aforementioned policies and public facilities to render them accessible to and usable by Plaintiff,” and other physically disabled persons. Id. at ¶ 33.

(2) Violation of § 504 of the Rehabilitation Act of 1973: Plaintiff claims that BART's actions also violated § 504 of the Rehabilitation Act and seeks damages, attorney's fees and injunctive relief for BART's violation. Id. at ¶¶ 34–38.

(3) Violation of Title III of the ADA: Plaintiff alleges that Alameda Bicycle, as a private entity, violated Title III of the ADA by discriminating against Plaintiff because of his disability. Id. at ¶¶ 42–43 (citing 42 U.S.C. § 12182). Plaintiff claims that the Bike Station is a “public accommodation,” that not only operates as a bike storage facility, but as a place that sells bike accessories and rents bicycles. Id. at ¶ 42. Plaintiff states that his requested accommodation was at all times “readily achievable.” Id. at ¶ 44. Plaintiff seeks damages and injunctive relief for Alameda Bicycle's violation of Title III. Id. at ¶ 47.

(4) Violation of the Disabled Persons Act (“DPA”), Cal. Civ. Code §§ 54 et seq.: Plaintiff alleges that Defendants' violated the DPA because 1) their actions and omissions constitute a denial of access and use of public facilities by physically disabled persons; 2) Defendants violated Cal. Gov. Code §§ 4450 et seq., which constitutes a violation of Cal. Civ. Code §§ 54 & 54.1; 3) a violation of the ADA constitutes a violation of Cal. Civ. Code §§ 54(c) & 54.1(d). Id. at ¶¶ 52–53. Plaintiff seeks damages, attorney's fees and costs, and injunctive relief. Id. at ¶ 56.

(5) Violation of the Unruh Act, Cal. Civ. Code §§ 51 et seq.: Plaintiff claims that Defendants' denial of access and use of public facilities discriminates against Plaintiff due to his disability and therefore violates Cal. Civ. Code §§ 51 and 52. Id. at ¶ 60. Plaintiff also claims that because Defendants violated the ADA, they also violated Cal. Civ. Code § 51(f). Id. at ¶ 61.

(6) Violation of Cal. Gov. Code § 11135: Plaintiff alleges that BART has failed to make their state-funded programs, services, and activities readily accessible to and useable by disabled persons in violation of Cal. Gov. Code § 11135. Id. at ¶¶ 65–66.

B. The Motion

Defendants Motion seeks to dismiss Plaintiff's claims 1–5.3 Regarding Plaintiff's first and third claims, Defendants contend that Plaintiff has failed to allege that he is disabled within the meaning of the ADA. Motion at 4. Defendants contend that Plaintiff is not “substantially limited in one or more major life activities.” Id. (emphasis original) (citing 42 U.S.C. § 12102(2)(A)). Defendants argue that Plaintiff's need to use the restroom approximately 2 to 8 minutes more than allowed by the bicycle parking facility fails to establish a “substantial” limitation of any major life activity. Id. at 4–5.

Even if Plaintiff is disabled within the meaning of the ADA, Defendants assert that Plaintiff's claims fail because, according to Department of Transportation (“DOT”) regulations implementing the ADA, Defendants are under no obligation to make “reasonable modification” of its rules or polices to address and accommodate the specific needs of a disabled person. Id. at 5 (citing Boose v. Tri–County Metro. Transp. District of Oregon, 587 F.3d 997 (9th Cir.2009); Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 675 (5th Cir.2004)). Defendants contend that the “reasonable modification” requirement contained in a Department of Justice (“DOJ”) regulation does not apply. Id.4

Defendants next contend that Plaintiff's Complaint fails to state a claim under California law. Id. at 6. First, Defendants assert that there is no claim under the DPA because “the DPA guarantees only physical access to public places; it does not require modification of policies or rules to accommodate a person with a disability.” Id. at 7 (citing Turner v. Ass'n of Am. Med. Colleges, 167 Cal.App.4th 1401, 1412–13, 85 Cal.Rptr.3d 94 (2008)). Defendants contend that Plaintiff simply seeks “more time than that allowed to other members of the public” to use the facility,5 which is not grounds for a DPA claim. Id.

Finally, Defendants argue that Plaintiff fails to state a claim under the Unruh Act. Id. at 7–8. Defendants contend that the Unruh Act is not violated where a rule is neutral on its face. Id. (citing Turner, 167 Cal.App.4th at 1407, 85 Cal.Rptr.3d 94). “There can be no question that the [ten] minute rule applies equally to all members who use the bicycle parking facility and thus, no claim for relief is stated under the Unruh Act.” Id. at 8. While Defendants acknowledge that a violation of the ADA constitutes a violation of the Unruh Act, id. (citing Cal. Civ. Code § 51(f)), Plaintiff states no claim for relief under the Unruh Act “because he is not ‘disabled’ within the meaning of the ADA.” Id.

In response, Plaintiff rejects Defendants' contention that he is not disabled. Plaintiff's Opposition to Defendants' Motion to Dismiss (“Opposition”), 4. Plaintiff argues that the ADA, as amended in 2008, defines a disability, with respect to an individual, as “a physical or mental impairment that substantially limits one or more major life activities of such an individual.” Id. (quoting 42 U.S.C. § 12102(1)(A)). Plaintiff contends that, due to the removal of a large portion of his bowel, he suffers from a loss of “major life activity” as defined by the statute, including “caring for oneself” and “eating,” as well as the operation of major...

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    ...and Dr. Donna Wright, Wilson County School Board Superintendent. (Id. ¶¶ 31, 33, 34, 35).Plaintiffs cite Pilling v. Bay Area Rapid Transit, 881 F.Supp.2d 1152, 1161 (N.D. Cal. 2012) for the proposition that "if a public facility excludes an individual from programs or facilities based on to......
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    ...entity (for the ADA claim) or receives federal financial assistance (for the Rehabilitation Act claim)." Pilling v. Bay Area Rapid Transit, 881 F. Supp. 2d 1152, 1158 (N.D. Cal. 2012) (quoting Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999)). The term "disability"......
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