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30 by the ADA,"419 as well as issued guidelines interpreting As stated, for a plaintiff to prove a discrimination the regulations.420 The regulations are applicable to en- claim under 12132, the plaintiff must show: tities providing transportation services regardless of (1) [H]e is a "qualified individual with a disability"; (2) he whether the entities receive financial assistance from was either excluded from participation in or denied the the USDOT.421 The entities that must adhere to the benefits of a public entity's services, programs or activi- USDOT's regulations include 1) a public entity that ties, or was otherwise discriminated against by the public provides designated public transportation or intercity or entity; and (3) such exclusion, denial of benefits, or dis- 431 commuter rail transportation; 2) any private entity that crimination was by reason of his disability. provides specified public transportation; and 3) any In a nontransit case, a federal court in Arizona ex- private entity not primarily engaged in transportation plained that 12132 "prohibits both outright discrimi- but that operates a demand-responsive or fixed-route nation against individuals with disabilities and forms of system.422 Entities that receive federal financial assis- discrimination, including facially neutral laws, that tance from the USDOT must comply with regulations deny disabled persons meaningful access to public ser- relating to transportation services for individuals with vices."432 Furthermore, disabilities as a condition of their compliance with Sec- [t]he regulations implementing Title II of the ADA re- tion 504 of the Rehabilitation Act of 1973.423 quire that public entities "shall make reasonable modifi- Title II applies to fixed-route systems and paratran- cations in policies, practices, or procedures when the sit service. A fixed-route system is public motor vehicle modifications are necessary to avoid discrimination on transportation with "a prescribed route according to a the basis of disability, unless the public entity can dem- fixed schedule."424 A public entity that operates a fixed- onstrate that making the modifications would fundamen- route system is required to prepare, submit, and pro- tally alter the nature of the service, program, or activ- 433 ity." vide updates regarding any changes to the system to demonstrate how the public entity also will provide In the Pruett case, the court held that the "ADA re- paratransit or other special transportation services. 425 quires only accommodations that are reasonable."434 Failure to do so or to follow the adopted plan is an act of The failure to make a reasonable accommodation for discrimination.426 the disabled under the ADA may constitute discrimina- tion: "the statute does not provide guidance as to when C. The Availability of a Private Right of Action a particular accommodation is or is not reasonable. The Under the ADA ADA does contain, however, an outer limit on the duty of reasonable accommodation in the concept of `undue Title II of the ADA provides that the remedies set hardship.'"435 However, as a district court stated in forth in the Rehabilitation Act govern actions involving discrimination relating to government programs; conse- Pruett, quently, a private right of action may be brought under [A] discrimination claim based on a failure to reasonably the ADA.427 As the Supreme Court has held, "[b]oth Ti- accommodate is distinct from a discrimination claim based on disparate impact, and a plaintiff is not required tle II and Section 504 are enforceable through private to allege either disparate treatment or disparate impact in causes of action."428 As discussed hereafter, injunctive order to state a reasonable accommodation claim.... "[T]he relief is available as a remedy to a private party under crux of a reasonable accommodation claim is a facially Title II and Section 504 of the Rehabilitation Act,429 as neutral requirement that is consistently enforced."..."The 430 well as compensatory damages in some situations. purpose of the ADA's reasonable accommodation re- quirement is to guard against the facade of `equal treat- 419 Michael Lewyn, "Thou Shalt Not Put a Stumbling Block ment' when particular accommodations are necessary to Before the Blind": The Americans with Disabilities Act and level the playing field."..."[T]he question of what consti- Public Transit for the Disabled, 52 HASTINGS L. J. 1037, 1070 tutes a reasonable accommodation under the ADA re- (2001); see 49 C.F.R. pts. 37, 38 (2009). 420 See 49 C.F.R. pt. 37, app. D (2009). 421 Reform Bd. of Trust., 1996 U.S. Dist. LEXIS 10194, at *4 (N.D. 49 C.F.R. pt. 37 (2009). 422 Ill. 1996). Id. 37.21(a)(3) (2009). 431 423 Pruett v. State, 606 F. Supp. 2d 1065, 1072 (D. Ariz. 29 U.S.C. 794 (2009). 2009) (quoting Weinreich v. L.A. County Metro. Transp. Auth., 424 42 U.S.C. 12141(3) (2009). 114 F.3d 976, 978 (9th Cir. 1997)). 425 Id. 12143(c)(4) (2009). 432 Id. at 1072 (citation omitted). 426 Id. 12143(c)(C)(6)(7) (2009). 433 Id. at 107273 (quoting 28 C.F.R. 35.130(b)(7)). 427 Id. 12133 (2009). 434 Id. at 1079 (holding that "permitting Pruett to possess 428 Everybody Counts, Inc. v. No. Ind. Reg. Planning the Chimpanzee in her home to assist her with obtaining car- Comm'n, 2006 U.S. Dist. LEXIS 39607, *47 (N.D. Ind. 2006) bohydrate supplementation is not a reasonable accommodation (citing Barnes v. Gorman, 536 U.S. 181, 185, 122 S. Ct. 2097, to the Arizona statutes and regulations that do not permit 2100, 153 L. Ed. 2d 230 (2002)). possession of chimpanzees in these circumstances"). 429 435 United States v. Georgia, 546 U.S. 151, 126 S. Ct. 877, Kelly Cahill Timmons, Limiting "Limitations": The Scope 882, 163 L. Ed. 2d 650 (2006). of the Duty of Reasonable Accommodation under the Americans 430 Barnes v. Gorman, 536 U.S. 181, 18687, 122 S. Ct. 2097, with Disabilities Act, 57 S.C. L. REV. 313, 321 (2005) (primarily 210002, 153 L. Ed. 2d 230 (2002); Garrett v. Chicago Sch. discussing the subject of employment discrimination).