Silguero v. CSL Plasma, Inc.

• Decision Date: 23 October 2018
• Docket Number: No. 17-41206,17-41206
• Citation: 907 F.3d 323
• Parties: Mark SILGUERO, Plaintiff-Appellant Amy Wolfe, Intervenor-Appellant v. CSL PLASMA, INCORPORATED, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

907 F.3d 323

Mark SILGUERO, Plaintiff-AppellantAmy Wolfe, Intervenor-Appellant

v.CSL PLASMA, INCORPORATED, Defendant-Appellee

No. 17-41206

United States Court of Appeals, Fifth Circuit.

FILED October 23, 2018

Ryan C. Downer, Esq., Assistant Counsel, Michael G. Allen, Sasha M. Samberg-Champion, Esq., Relman, Dane & Colfax, P.L.L.C., Washington, DC, Lia Sifuentes Davis, Brian D. East, Senior Attorney, Disability Rights Texas, Central Texas Regional Office, Austin, TX, for Plaintiff-Appellant and Intervenor-Appellant.

Bruce Jay Douglas, Stephanie Jenaye Willing, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Minneapolis, MN, for Defendant-Appellee.

Rakesh Kilaru, Wilkinson Walsh + Eskovitz, L.L.P., Washington, DC, for Amicus Curiae Paralyzed Veterans of America.

Elizabeth Nash, Tovah Calderon, U.S. Department of Justice, Civil Rights Div-Appellate Section, Washington, DC, for Amicus Curiae United States of America.

Cary Baxter Davis, Mark Hiller, Robinson, Bradshaw & Hinson, P.A., Charlotte, NC, for Amicus Curiae Octapharma Plasma, Incorporated.

John Delacourt, Plasma Protein Therapeutics Association, Washington, DC, Micheal Wayne Dobbs, Kelley Drye & Warren, L.L.P., Houston, TX, for Amicus Curiae Plasma Protein Therapeutics Association.

Before KING, ELROD, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

CSL Plasma, Inc. is a plasma collection center that will pay anyone who passes its screening test to donate plasma. Mark Silguero and Amy Wolfe are both individuals with disabilities who attempted to donate plasma but whom CSL Plasma deferred for reasons they allege related to their disabilities. Silguero used a cane and had a limp; Wolfe had anxiety and required the use of a service animal. Silguero and Wolfe sued under the Americans with Disabilities Act ("ADA") and Chapter 121 of the Texas Human Resources Code ("THRC"). The district court granted summary judgment in CSL Plasma’s favor. It concluded that those laws did not apply because CSL Plasma was neither a "public accommodation" under the ADA nor a "public facility" under the THRC.

We affirm the district court’s decision regarding the scope of the ADA. The core dispute is whether CSL Plasma is a "service establishment" within the definition of "public accommodation." We conclude it is not. CSL Plasma does not provide any "service" to customers. Instead, it pays them for the inconvenience of donating plasma so that it can collect a commercially valuable asset. We certify the THRC questions to the Supreme Court of Texas.

I. Background

CSL Plasma operates a network of plasma collection centers. It offers to pay members of the public to donate¹ plasma. Individuals who wish to donate must pass a screening evaluation that confirms that the individual donating and the plasma extracted meet Food and Drug Administration (FDA) regulations. Those who do not pass the screening, for whatever reason, are deferred—told they will not be permitted to donate and will not be paid.

Those who pass the screening are taken to a room where they are connected to specialized machinery that removes their blood, separates the plasma, and then re-circulates the remaining elements of blood into their system. After CSL Plasma extracts the plasma, it pays the individual. There is no indication in the record that members of the public pay CSL Plasma in exchange

for plasma collection or that it offers any services for which the public can pay. CSL Plasma sells the plasma it collects to other private entities who use it for various medical purposes.² Nothing in the record indicates that CSL Plasma enters into any sort of contingency fee arrangement with members of the public, where the individual donating receives a percentage of the eventual sale price.

Silguero and Wolfe are two individuals who attempted to donate plasma at CSL Plasma but were both deferred. Silguero had previously donated before his deferral, while Wolfe had never donated before. The parties dispute the precise motivation for why Silguero and Wolfe were each deferred. But all agree that the deferrals were based on pre-existing policies implicating Silguero’s and Wolfe’s disabilities.³

Silguero was initially deferred in December 2013, and he says that the deferral was based on CSL Plasma’s policy not to accept donors who have an "unsteady gait," though the precise reason for his initial deferral has changed over time. Silguero has bad knees and requires the use of a cane to walk. After the initial deferral, CSL Plasma permanently deferred him because he allegedly later threatened employees for initially deferring him. Silguero has presented evidence that he never threatened employees or reacted inappropriately to the initial deferral; he asserts that CSL Plasma’s reason for his permanent deferral is essentially a pretext to cover for discrimination based on his disability. He remains permanently deferred.⁴

Wolfe was deferred in October 2016 based on CSL Plasma’s policy not to accept donors whose anxiety was severe enough to require the use of a service animal.⁵ The parties agree that CSL Plasma had a preexisting policy that applied to all individuals who used animals to treat anxiety. At the time Wolfe tried to donate, a doctor at CSL Plasma was contacted to verify that she would be unable to donate due to her service animal.⁶ The record is unclear to what extent the doctor reviewed information unique to Wolfe. But regardless of her unique circumstances, she will be unable to donate so long as she uses her service animal to treat the anxiety.

Silguero and Wolfe both sued, alleging unlawful discrimination under Title III of the ADA, 42 U.S.C. § 12182, and Chapter 121 of the THRC, TEX. HUM. RES. CODE § 121.001 et seq. CSL Plasma moved for summary judgment, arguing that it was neither a "public accommodation" under the ADA nor a "public facility" under the THRC. It also argued that Silguero and Wolfe could not identify a genuine issue of material fact or show that CSL Plasma had done anything other than impose a legitimate safety requirement. The district court granted summary judgment, concluding that neither the ADA nor the THRC applied to CSL Plasma. It did not address CSL Plasma’s other arguments. Silguero and Wolfe now appeal.

II. Standard of Review

This court reviews de novo a district court’s grant of summary judgment, applying the same standard as the district court. Austin v. Kroger Tex., L.P. , 864 F.3d 326, 328 (5th Cir. 2017) (citing Ford Motor Co. v. Tex. Dep’t of Transp. , 264 F.3d 493, 498 (5th Cir. 2001) ). It reviews all evidence in the light most favorable to Silguero and Wolfe, the non-moving parties. See id. at 328–29.

III. Discussion

We first address why we agree with the district court that CSL Plasma is not a "public accommodation" under the ADA. We then explain why we certify questions about the THRC to the Supreme Court of Texas and set out the necessary information for the Supreme Court of Texas to answer the questions.

A. ADA Claim

The crux of this case is whether CSL Plasma is a "service establishment" under 42 U.S.C. § 12181(7)(F). If it is, then it is a "place of public accommodation," and Title III of the ADA applies to it. See 42 U.S.C. § 12182(a). If it is not, then it cannot be held liable for discrimination under Title III.⁷

The term "service establishment" appears in the definition of public accommodation. The definition includes twelve different categories of accommodations. The single category at issue in this case includes an enumerated list of fifteen establishments, followed by the catchall phrase "or other service establishment." 42 U.S.C. § 12181(7)(F).⁸ Silguero and Wolfe do not argue that plasma collection centers are among the enumerated items listed in that category.

Instead, the dispute is over the catchall phrase "other service establishment."⁹

The parties agree that a "service establishment" is, unsurprisingly, an "establishment" providing "services" to others. They also agree that CSL Plasma is an "establishment." They disagree about whether CSL Plasma provides "services" to others.¹⁰

The word "service" generally denotes some "helpful act" or an "act giving assistance or advantage to another." See Service , MERRIAM-WEBSTER COLLEGIATE DICTIONARY (10th ed. 1993); Service , WEBSTER NEW WORLD COLLEGIATE DICTIONARY (3d ed. 1996). The adjective "helpful" in the first definition implies that someone receives help from the act. In the second definition, the verb "giving" and the preposition "to" indicate that the "assistance or advantage" is conveyed from the act to the individual. Congress’s use of the word "service" thus suggests not only that the establishment performed some action but also that the action helped or benefited the recipient. In the case of a "service establishment," the establishment serves the members of the public who are "helped" or "benefited" by the service. Other definitions from authoritative dictionaries bolster this reading. For example, service can also be defined as "the provision (of labour, material appliances, etc.) for the carrying out of some work for which there is constant public demand." Service , OXFORD-ENGLISH DICTIONARY (2d ed. 1988); see also Service , RANDOM HOUSE DICTIONARY (2d ed. 1987) ("[T]he organized system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public."). The "provision" of the "work" goes to the "public" who "demands" it.¹¹

Based on these dictionary definitions, a "service establishment" is an establishment that performs some act or work for an individual who benefits from the act or work.¹² Our definition is materially similar to the one developed by the Tenth Circuit, the only other federal court of appeals to address the ADA’s applicability to plasma collection centers. See Levorsen v. Octapharma Plasma, Inc. , 828 F.3d 1227 (10th Cir. 2016). It defined a "service establishment" to mean "a place of business or a public or private institution that, by its conduct or performance,...