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quires a fact-specific, individualized analysis of the dis- court declined to rule on "whether `deliberate indiffer-
abled individual's circumstances and the accommodations ence' or `discriminatory animus' provided the appropri-
436
that might allow him to meet the program's standards." ate level of intent.'"448
(emphasis added). Examples of ADA cases involving transit with differ-
In Midgett v. Tri-County Metropolitan Transporta- ent outcomes include Cupolo v. Bay Area Rapid Transit,
tion District,437 the Ninth Circuit addressed the issue of in which a disabled individual brought an action
what relief is available for an ADA plaintiff who alleges, against the local transit authority because the area's
for example, that wheelchair lifts on several buses that key station for rapid and light rail systems was not
the plaintiff attempted to ride all malfunctioned on the readily accessible to individuals with disabilities.449 A
same day.438 California district court in ordering a preliminary in-
The court held, first, with respect to injunctive relief, junction held that the local transit authority's failure to
that the fact that a plaintiff is able to show sufficient provide accessibility services, such as for individuals
injury to establish standing does not warrant conclud- who require a wheelchair, violated the ADA. However,
ing "that the plaintiff necessarily has demonstrated a more recently, in Neighborhood Association of the Back
sufficient fear of immediate and substantial injury to Bay, Inc. v. Federal Transit Administration,450 a federal
warrant an injunction."439 district court in Massachusetts held that a preliminary
Second, when the defendant is a nonfederal govern- injunction halting a project to bring a subway station
ment agency, be it state or local, a federal court will into compliance with the ADA would harm the unde-
exercise restraint in granting an injunction, for in- niably crucial public interest in ensuring that public
stance, that requires a transit defendant to take spe- transportation was accessible to the disabled.
451
cific, affirmative steps to make certain the agency is In George v. Bay Area Rapid Transit, the issue was
440
ADA-compliant. In Midgett, the court observed that whether the plaintiffs could recover under the ADA
"TriMet is a `state public entity,' a fact that cautioned when "a public transit service system complies with
against the court's use of its equitable powers in the existing federal design regulations for train station ac-
452
absence of a strong factual record demonstrating the cessibility." The Ninth Circuit observed that the "DOT
threat of future ADA violations."441 was required to make `key stations' readily accessible to
Third, it is not required, as the district court also and useable by persons with visual impairments."453 The
held, "that a defendant's intent is an element of a claim court held that the DOT had done so, that the DOT
for injunctive relief under the ADA."442 According to the regulations were not arbitrary or capricious, and that
court, it had "never held that a plaintiff must prove an DOT had "address[ed] the needs of those with visual
intentional violation of the ADA in order to obtain an disabilities, although perhaps not to the level the tran-
443
injunction mandating compliance with its provisions." sit riders would have preferred."454 Furthermore,
Fourth, a plaintiff must present facts showing a "[u]nless DOT regulations are arbitrary and capricious;
threat of immediate, irreparable harm when seeking an BART is required to do no more than follow them."455
injunction.444 However, "occasional problems do not, Finally, as held by a federal district court in New
without more, establish a violation of the ADA."445 The York, "[o]nly transit `entities' can be defendants in ADA
evidence presented did not support an inference of a Title II cases because that subchapter of the statutes
"real and immediate threat of continued, future viola- only discusses the obligations of `entities' to not dis-
446
tions of the ADA in the absence of injunctive relief." criminate, 42 U.S.C. § 12131 and § 12132, not those of
456
On the issue of compensatory damages, the court `employers' or `persons'...."
held, as did the district court, that "a showing of dis-
criminatory intent [is] a prerequisite to obtaining com- D. The ADA and Paratransit Service
pensatory damages under the ADA."447 However, the A paratransit system does not have a fixed route but
instead meets riders' specific needs at requested times.
436
Pruett, 606 F. Supp. 2d at 1079.
437
254 F.3d 846 (9th Cir. 2001). 448
Id. (citation omitted).
438
Id. at 848. 449
Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078
439
Id. at 850 (citations omitted). (N.D. Cal. 1997).
440
Id. at 848, 851. 450
407 F. Supp. 2d 323 (D. Mass. 2005).
441
Id. at 849 (citation omitted). 451
577 F.3d 1005 (9th Cir. 2009).
442
Id. at 851. 452
Id. at 1007.
443
Id. 453
Id. at 1009.
444
Id. 454
Id.
445
Id. at 850. 455
Id. at 1011.
446
Id. (emphasis in original). 456
Stewart v. N.Y. City Transit Auth., 2006 U.S. Dist.
447
Id. at 851 (citation omitted). LEXIS 4279, at *17 (S.D. N.Y. 2006).
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A disabled individual qualifies for paratransit service The exception for undue financial burden is consis-
under Title II if the disabled person 1) is not able with- tent with the application of the ADA to employers. As
out assistance "to board, ride, or disembark from any stated in West v. Russell Corp.,465 "[g]enerally, ...federal
vehicle on the system which is readily accessible to and courts have applied the settled principles of employ-
usable by individuals with disabilities"; 2) requires ment discrimination law to the ADA." The Supreme
boarding assistance devices; or 3) does not have access Court observed in Board of Trustees of the University of
to travel to needed locations through any fixed-route Alabama v. Garrett466 that the ADA "requires employers
systems.457 to `make reasonable accommodations to the known
In Anderson v. Rochester-Genesee Regional Trans- physical or mental limitations of an otherwise qualified
portation Authority,458 the court stated, first, that § individual with a disability who is an applicant or em-
12143 "requires that the `level of [paratransit] service' ployee, unless [the employer] can demonstrate that the
be `comparable to the level of designated public trans- accommodation would impose an undue hardship on the
portation services provided to individuals without dis- operation of the [employer's] business.'"467
abilities,' and that response time be `comparable, to the In Anderson, supra, the court stated that, in regard
extent practicable, to the level of designated public to the ADA claims, even a "well conceived" and funded
transportation services provided to individuals without paratransit service occasionally may experience trip
459
disabilities.'" denials.468 However, "`substantial numbers' of trip deni-
As the Supreme Court of the State of Washington als can establish that a paratransit service...is inade-
has observed, "[t]he ADA addresses discrimination in quate as a matter of actual operation."469 The court, in
public transportation by requiring public transit agen- answer to its own question of what level of service
cies operating fixed route systems to provide paratran- would make a paratransit system "comparable" to a
sit and other special service transportation to disabled public transportation system used by individuals with-
persons on a comparable level to the service provided out disabilities, stated that "[c]omparability seems im-
460
for nondisabled users." Thus, paratransit services possible to achieve because, as one district judge has
must be comparable to those provided by a state or local observed, `a constraint on a fixed route system never
government's fixed-route services.461 results in a patron being denied a ride altogether, ab-
A public entity, however, does not have to provide sent an uncontrollable force.'"470
paratransit services if doing so would cause undue fi- Nevertheless, the court held that, although an in-
nancial hardship.462 For example, in one case involving substantial number of trip denials is permissible, para-
the Spokane Transit Authority (STA), a public transit transit service providers must "plan to meet 100% of
agency, the court held that if the plaintiff were to make the demand for next-day ride requests."471 In affirming
a prima facie case of discrimination, thereby shifting the lower court's grant of a summary judgment in favor
the burden to the STA to show a nondiscriminatory of the plaintiffs on their first claim, the appellate court
reason for its actions, "[c]ompliance by STA with the held that based on the record, "the defendants violated
ADA and the DOT regulations adopted there- [49 C.F.R.] § 37.131(b) by failing to design and imple-
under...could constitute a legitimate, nondiscriminatory ment a system to schedule all next-day ride requests
reason for STA's actions, sufficient to shift the burden from eligible riders."472
to the plaintiffs to demonstrate that STA's actions were In the Anderson case, there was also an issue of
463
a mere pretext for discrimination." (Burden-shifting whether the "defendants violated 49 C.F.R.
in Title VI and ADA cases is discussed, supra, in the § 37.131(f)(3) by engaging in an `operational pattern or
text of the digest at footnotes 187 to 192.) Moreover, "a practice' that significantly limited the availability of
473
defendant may advance financial unfeasibility as a le- paratransit service." Based on the record and "unre-
gitimate nondiscriminatory reason for its action."464 futed" statistics, the Second Circuit again affirmed the
district court's grant of a summary judgment in favor of
457 the plaintiffs on their claim that the defendants "main-
42 U.S.C. § 12143(c)(1) (2009).
458
tain[ed] a pattern or practice that significantly limits
337 F.3d 201 (2d Cir. 2003).
459
Id. at 2089 (citing 42 U.S.C. § 12143(a)).
460
Fell v. Spokane Transit Auth., 128 Wash. 2d 618, 638,
911 P.2d 1319, 1324 (Wash. 1996) (citing 42 U.S.C.A.
§ 12143(a) (1995)). 465
868 F. Supp. 313, 315 (N.D. Ala. 1994).
461
42 U.S.C. § 12143(a). 466
531 U.S. 356, 361, 121 S. Ct. 955, 960, 148 L. Ed. 2d 866,
462
Fell, 911 P.2d at 1314 (citing 42 U.S.C. § 12143(c)(4)); see 876 (2001).
49 C.F.R. § 37.155 (setting forth the factors that the FTA Ad- 467
Id. (quoting 42 U.S.C. § 12112(b)(5)(A)).
ministrator will consider in making an undue financial burden 468
Anderson, 337 F.3d at 210.
determination). 469
463 Id. (citation omitted).
Id. at 1331 (footnote omitted) (stating also that on re- 470
mand the plaintiffs would have an opportunity to show that Id. at 209 (citation omitted).
471
"STA's reliance on the ADA was a mere pretext for discrimina- Id. at 212 (citation omitted).
472
tion."). Id. at 213.
464 473
Id. at 1331 (footnote omitted). Id.
