Silguero v. CSL Plasma, Inc.

• Decision Date: 28 June 2019
• Docket Number: NO. 18-1022,18-1022
• Citation: 579 S.W.3d 53
• Parties: Mark SILGUERO and Amy Wolfe, Appellants, v. CSL PLASMA, INCORPORATED, Appellee
• Court: Texas Supreme Court

579 S.W.3d 53

Mark SILGUERO and Amy Wolfe, Appellants,

v.CSL PLASMA, INCORPORATED, Appellee

NO. 18-1022

Supreme Court of Texas.

Argued March 13, 2019

OPINION DELIVERED: June 28, 2019

Brian East, Lia S. Davis, Disability Rights Texas, Austin TX, Michael G. Allen, Ryan Downer, Sasha M. Samberg-Champion, Relman, Dane & Colfax, P.L.L.C., Washington DC, for Appellants and Intervenor.

Bruce J. Douglas, Stephanie Jenaye Willing, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Minneapolis MN, for Appellee.

Lana Rowenko, Micheal Wayne Dobbs, Kelley Drye & Warren LLP, Houston TX, for Amicus Curiae.

Justice Green delivered the opinion of the Court.

In this opinion we consider two questions certified to this Court by the Fifth Circuit Court of Appeals: (1) Is a plasma collection center a "public facility" under Texas Human Resources Code (THRC) section 121.002(5), and if so, (2) what standard applies for determining whether a public facility's rejection of a person with a disability constitutes impermissible discrimination under the THRC? We hold that a plasma collection center is a "public facility" under section 121.002(5). We further hold that a plasma collection center may reject a person with a disability—eliminating their opportunity to donate plasma and receive compensation—without committing impermissible discrimination under section 121.003(a) when: (1) the plasma center's rejection does not meet the THRC's definition of "discrimination" or satisfies an exception to the definition of "discrimination," such as the application of eligibility criteria that screen out persons with disabilities, but are shown to be necessary for the provision of services; or (2) the defendant establishes that allowing the person with a disability full use and enjoyment of the public facility would pose a direct threat to the health or safety of others. See 42 U.S.C. § 12182(b)(2)(A)(i), (b)(3).

I. Background

CSL Plasma, Inc. operates plasma collection centers across the United States. At these centers, CSL extracts the donor's blood, separates the donor's plasma from the red blood cells, and then returns the red blood cells to the donor's bloodstream.¹ After this extraction process, CSL compensates the donor,² processes the plasma to create a marketable plasma byproduct, and ultimately sells this byproduct to pharmaceutical companies. The federal Food and Drug Administration (FDA) regulates this plasma extraction process. The FDA licenses and audits plasma collection centers.

Under the FDA's regulations, CSL must screen all potential donors to determine whether each individual is eligible to donate. See 21 C.F.R. § 630.10. During the screening, potential donors answer health-related questions, and CSL's medical staff, referring to CSL's medical guidelines, determine their eligibility by checking their vital signs and considering their medical history, current medications, and whether they have recent tattoos. For example, CSL's medical guidelines on eligibility provide that if a potential donor suffers from anxiety requiring the use of a service dog, he or she is ineligible to donate. CSL's medical staff is permitted to contact CSL physicians to discuss particular potential donors. Individuals who fail the screening are deferred, meaning they are not permitted to donate and receive no compensation. Mark Silguero and Amy Wolfe were potential donors at CSL.

Silguero suffers from bad knees and uses a cane. CSL and Silguero agree that Silguero qualifies as a person with disabilities under the Americans with Disabilities Act (ADA) and the THRC. Silguero had previously donated plasma at CSL between January and April 2014. Silguero attempted to donate again on January 2, 2015. At that time, the condition of Silguero's knees had worsened to the point of needing knee replacements. Silguero went through CSL's donor-screening process, and CSL informed him that he would be deferred and unable to donate that day. Silguero claims he was deferred because of his "unsteady gait" and because CSL believed that he could not transfer safely to and from the donation bed. Silguero became upset, shook his finger at the medical staff, and told them they would be sorry. As a result, CSL deferred Silguero permanently, banning him from donating at CSL.

Wolfe suffers from an anxiety disorder and utilizes a service dog to improve her symptoms. Having never donated at CSL before, Wolfe went to CSL to donate plasma on October 9, 2016. Both CSL and Wolfe agree that Wolfe qualifies as a person with a disability under the ADA and the THRC. CSL did not allow Wolfe to donate because she required a service animal to treat her anxiety. In deferring her, CSL relied on its guidelines that a person is ineligible to donate if they suffer from anxiety requiring the use of a service dog.

Silguero filed suit against CSL in federal court on August 24, 2016, alleging unlawful discrimination on the basis of his disability. He sought injunctive relief under Title III of the ADA and both injunctive relief and damages under chapter 121 of the THRC. The district court allowed Wolfe to intervene as a plaintiff on March 28, 2017, because her claims against CSL for disability discrimination presented common questions of fact and law. On August 14, 2017, each side moved for summary judgment. CSL argued that it was neither a place of "public accommodation" under the ADA, because it did not qualify as a "service establishment," nor a "public facility" under the THRC. It further asserted that Silguero and Wolfe (collectively, the "plaintiffs") could not establish a genuine issue of material fact as to whether CSL fell under the ADA or THRC. The plaintiffs argued that a plasma collection center falls within the plain meaning of "service establishment" under the ADA because it is simply an establishment that provides a service. The plaintiffs cited a Tenth Circuit Court of Appeals case in support of this argument. See Levorsen v. Octapharma Plasma, Inc. , 828 F.3d 1227, 1234 (10th Cir. 2016) (holding that a plasma collection center was a "service establishment" under the ADA). Under the THRC, the plaintiffs argued that a plasma collection center qualifies as a retail business and commercial establishment to which the general public is invited or, alternatively, as an "other place of public accommodation."

The district court granted summary judgment in favor of CSL. No. 2:16-CV-361, 2017 WL 6761818, at *1 (S.D. Tex. Nov. 3, 2017) (slip copy). The district court first concluded that a plasma collection center is not a place of "public accommodation" under section 12181(7) of the ADA. Id. at *4. The court reasoned that plasma collection centers are not "other service establishment[s]" under section 12181(7)(F) because they pay donors for their plasma rather than offering a service in exchange for compensation. Id.

Having decided that the ADA does not apply, the district court elected to maintain supplemental jurisdiction over the plaintiffs' state law claims. See id. at *5 (citing Baker v. Farmers Elec. Coop., Inc. , 34 F.3d 274, 283 (5th Cir. 1994) ). Explaining that the THRC provides for persons with disabilities to have full use and enjoyment of a public facility in Texas, the court analyzed whether a plasma collection center falls within the meaning of "public facility" under the THRC. Id. ; see also TEX. HUM. RES. CODE § 121.003(a). The court looked to the plain meaning of "public facility" under the THRC, concluding that a plasma collection center does not qualify as a public facility because it is not a place of public accommodation under section 121.002(5). 2017 WL 6761818, at *5. Specifically, the court reasoned:

[A] plasma-donation center does not supply any good or service for convenience or need. Rather, the donor sells blood plasma to the center. Because the roles of seller and buyer are reversed in the plasma-donation context, plasma-donation centers such as CSL do not qualify as places of public accommodation under Texas Human Resources Code § 121.002(5).

Id. The district court also reasoned that the public is not generally invited to a plasma collection center. Id. at *6. It noted that although a plasma collection center is arguably a commercial business, it only purchases plasma from those who pass the screening, and it does not invite the general public, in its entirety, to donate; "[a]t most, it invites the general public to find out whether they meet the criteria for donating." Id. Therefore, the district court determined that a plasma collection center does not represent the open and accessible nature of the establishments listed in section 121.002(5) and could not be considered a public facility under the THRC. Id.

The Fifth Circuit affirmed the district court's holding that a plasma collection center is not an "other service establishment" under the ADA. 907 F.3d 323, 332 (5th Cir. 2018). After concluding that the ADA does not apply to a plasma collection center, the Fifth Circuit certified questions to this Court as to whether the THRC governs plasma collection centers such as CSL's. Id. at 333. Those questions are:

1. Is a plasma collection center [like those operated by CSL] a "public facility" under Texas Human Resources Code § 121.002(5) ?

2. If so, would Texas law allow the plasma collection center to reject a "person with a disability," see TEX. HUM. RES. CODE § 121.002(4), based on the center's concerns for the individual's health that stem from the disability? What standard would apply to determining whether the plasma collection center properly rejected the person, rather than committed impermissible discrimination under Texas Human Resources Code § 121.003(a) ?

Id. We accepted the certified questions. 62 Tex. Sup. Ct. J. 90 (Oct. 26, 2018).

II. Texas Human Resources Code Chapter 121

Chapter 121 of the THRC, which was enacted before and differs substantially from its federal counterpart in the ADA, embodies the purpose of "encourag[ing] and enabl[ing] persons with disabilities to...