Impacts of the Americans with Disabilities Act on Transit Agency Liability (2018)

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15 information on the number of claims or cases, the nature or type of claim, and/or the disposition of claims or cases.168 Some agencies provided an Inter- net link to and/or a copy of their report or record, which is included in Appendix D to this digest.169 V. TITLE II OF THE ADA AND DISCRIMINATION BY PUBLIC ENTITIES A. Introduction The ADA applies to almost all providers of trans- portation service, regardless of whether they are public or private and regardless of whether they receive federal financial assistance.170 Title II applies to public entities, a term that includes any state or local government; any department, agency, special-purpose district, or other instrumentality of a state or states or local government; the National Railroad Passenger Corporation (Amtrak); and any commuter authority.171 Title II prohibits discrimi- nation by public entities providing public services, including transportation services, against individ- uals with disabilities, including those who use wheelchairs.172 Title II mandates that a qualified individual with a disability shall not, because of a disability, “be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to dis- crimination by any such entity.”173 Under Title II, a qualified individual with a disability is one who, with or without reasonable modifications to rules, poli- cies, or practices, the removal of architectural, communica- tion, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility require- ments for the receipt of services or the participation in pro- grams or activities provided by a public entity.174 Section 12141 of the ADA defines other important terms used in Title II. Designated public transporta- tion is “transportation … by bus, rail, or any other conveyance … that provides the general public with general or special service (including charter service) on a regular and continuing basis.”175 A fixed route system is a designated public transportation system 168 See Appendix C, Transit Agencies’ Responses to Question 4. 169 See id. 170 FTA Circular, Ch. 1, p. 1-1. 171 42 U.S.C. § 12131(1)(A)-(C) (2018). 172 Abrahams v. MTA Long Island Bus, 644 F.3d 110, 115 (2d Cir. 2011) (citing 42 U.S.C. § 12131 et seq.). 173 42 U.S.C. § 12132 (2018). 174 Id. § 12131(2). 175 Id. § 12141(2). The section excludes public school transportation and transportation by aircraft or intercity or commuter rail transportation as defined in 42 U.S.C. § 12161. practice occurred” with notice of the charge served as required by the section.162 A provision that may be an issue in litigation is the 90-day rule in § 2000e-5(f)(1) within which a civil action must be brought,163 a rule that the courts have strictly enforced.164 The statute states that when the Commission has not filed a civil action under this sec- tion or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or polit- ical subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General … shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the per- son claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.165 Section 2000e-6(a) authorizes the Attorney General to bring a civil action whenever he or she “has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter [42 U.S.C. § 2000e-2000e-17].” 2. Transit Agencies’ Approaches to Preventing or Managing or Defending Against Title I Claims or Cases Twenty-four transit agencies responding to the survey stated that they had determined that there are approaches that are useful in preventing or managing or defending against Title I ADA disabil- ity-employment claims or cases.166 Their approaches are summarized in Appendix C.167 Eight agencies responding to the survey have a report or other record of ADA employment claims or cases for the past five years that provides 162 A 300-day rule applies to claims by aggrieved per- sons that are instituted initially with a state or local agency. See 42 U.S.C. § 2000e-5(e)(1) (2018). 163 For example, it has been held that a plaintiff who fails to pay the filing fee within 90 days of the receipt of a right-to-sue letter fails to file her complaint within the time allowed by 42 U.S.C. § 2000e-5(f)(1). Truitt v. County of Wayne, 148 F.3d 644 (6th Cir. 1998). 164 See Williams v Ga. Dep’t of Def. Nat’l Guard Head- quarters, 147 Fed. App’x. 134 (11th Cir. 2005), cert. denied, 126 S. Ct. 1318, 164 L.Ed.2d 57 (2006) (holding that because an employee did not file a complaint within 90 days of receiving the EEOC’s letter, as required by § 2000e-5(f)(1), and because the employee did not show any entitlement to equitable tolling of the period, the district court properly dismissed the employee’s discrimination complaint). 165 42 U.S.C. § 2000e-5(f)(1) (2018). 166 See Appendix C, Transit Agencies’ Responses to Question 5. 167 See id.

16 passenger cars, and vehicles covered by subtitle B. Such standards shall be consistent with the minimum guidelines and requirements issued by the Architectural and Trans- portation Barriers Compliance Board in accordance with section 504(a) of this Act [42 U.S.C. § 12204(a)].182 The Ninth Circuit has held, for example, that pursuant to 42 U.S.C. § 12143, only the Secretary of Transportation may make rules determining the level of services required for paratransit.183 The court declined to interpret 28 C.F.R. § 35.102(b) so as to enlarge the Justice Department’s jurisdiction beyond the limits established by 42 U.S.C. § 12134. 2. Title II, Subtitle B, and Regulations Promulgated by the Department of Transportation Subtitle B of Title II of the ADA governs public transportation services.184 The DOT regulations in 49 C.F.R. part 27 implement Section 504 of the Rehabilitation Act of 1973 so “that no otherwise qualified individual with a disability in the United States shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”185 The regulations in 49 C.F.R. § 27.19(a) state that [r]ecipients subject to this part (whether public or private entities as defined in 49 CFR Part 37) shall comply with all applicable requirements of the [ADA] including the Depart- ment’s ADA regulations (49 CFR parts 37 and 38), the regu- lations of the Department of Justice implementing titles II and III of the ADA (28 CFR parts 35 and 36), and the regu- lations of the Equal Employment Opportunity Commission (EEOC) implementing title I of the ADA (29 CFR part 1630). The DOT regulations in part 37 implement Titles II and III.186 Section 37.5 of the regulations provides that “[n]o entity shall discriminate against an individual with a disability in connection with the provision of transportation service.”187 The reg- ulations prohibit entities from denying “any indi- vidual with a disability the opportunity to use the entity’s transportation service for the general pub- lic” when the individual is capable of using the ser- vice; from requiring an individual with a disability to use designated priority seats when the individ- ual chooses not to use priority seats; or from 182 Id. § 12134(c) (emphasis supplied). 183 Boose v. Tri-County Metro. Transp. Dist. of Or., 587 F.3d 997 (9th Cir. 2009). 184 42 U.S.C. §§ 12141-12165 (2018). 185 49 C.F.R. § 27.1 (2018). 186 Id. pt. 37 (stating that “[t]he purpose of this part is to implement the transportation and related provisions of titles II and III of the Americans with Disabilities Act of 1990”). 187 Id. § 37.5(a). on which vehicles operate on a prescribed route ac- cording to a fixed schedule.176 A demand responsive system provides public transportation that is not a fixed route system.177 The term paratransit refers to “comparable transportation service required by the ADA for individuals with disabilities who are unable to use fixed route transportation systems.”178 Under the ADA, the United States Attorney General and the Secretary of the Department of Transportation are responsible for promulgating regulations to implement Title II. The Attorney General’s regulations are in 28 C.F.R. parts 35 to 36, whereas the DOT regulations are in 49 C.F.R. parts 27 and 37 to 39.179 In addition to other regu- lations pertinent to Title II, this part of the digest discusses in particular the DOT regulations in 49 C.F.R. parts 37 and 38 that establish minimum accessibility standards for transportation vehi- cles, such as rapid rail vehicles, light rail vehicles, buses, vans, commuter rail cars, intercity rail cars, and over-the-road buses, and transportation facilities. B. Regulatory Jurisdiction of Title II 1. Title II, Subtitle A, and Regulations Promulgated by the Attorney General Subtitle A of Title II of the ADA, which governs public services generally, states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to dis- crimination by any such entity.”180 Pursuant to the authority in 42 U.S.C. § 12134(a), the Attorney Gen- eral issued regulations that are contained in 28 C.F.R. part 35 that implement Subtitle A of Title II of the ADA. However, the Attorney General’s regula- tions are not to include any matter within the scope of the Secretary of Transportation’s authority under 42 U.S.C. §§ 12143, 12149, or 12164.181 Thus, the Attorney General’s regulations had to include standards applicable to facilities and vehicles cov- ered by this subtitle, other than facilities, stations, rail 176 Id. § 12143(3). 177 Id. § 12141(1). The term operates, when used regarding a fixed route system or demand responsive sys- tem, includes the operation of either system by a person having a contractual or “other arrangement or relation- ship with a public entity.” 42 U.S.C. § 12142(4) (2018). 178 49 C.F.R. § 37.3 (2018). 179 Part 39 enforces the ADA’s general nondiscrimina- tion requirements that apply to vessels transporting indi- viduals over water. 49 C.F.R. § 39.1 (2018). 180 42 U.S.C. § 12132 (2018). 181 Id. § 12134(a).

17 with the requirements of part 37 in the same manner as the transit agencies when the agencies are provid- ing the services directly.196 The FTA Circular provides guidance on compli- ance with federal laws and regulations applicable to fixed route bus service; complementary paratransit service; demand responsive service; and rapid, light, and commuter rail service, as well as water transportation/passenger ferries.197 Part 37 applies to the following entities, whether or not they receive Federal financial assistance from the Department of Transportation: (1) Any public entity that provides designated public trans- portation or intercity or commuter rail transportation; (2) Any private entity that provides specified public trans- portation; and (3) Any private entity that is not primarily engaged in the business of transporting people but operates a demand responsive or fixed route system.198 Specific provisions of the regulations apply to pri- vate entities whenever they receive FTA funds as a subrecipient or contractor to provide public trans- portation.199 Table 1-1 in the FTA Circular summa- rizes the parts and subparts of the regulations that apply to various types of transportation services that FTA grantees provide.200 In sum, as the FTA states, “[a]lmost all types of transportation providers are obligated to comply with Federal nondiscrimination regulations in one form or another.”201 D. Prohibition of Discriminatory Practices Chapter 2 of the FTA Circular provides examples of discriminatory practices and discusses prohibited charges, issues related to insurance, and accessibil- ity features required for both vehicles and facili- ties.202 Chapter 2 also discusses required features and the accommodation of individuals using wheel- chairs and other mobility devices.203 If an individual with a disability is capable of using a transit agency’s service, the agency is prohibited from denying the individual the opportunity to use the service that is available to the general public.204 An agency may not deny service to a person with a 196 Id. 197 Id. Ch. 1.1, p. 1-1. 198 49 C.F.R. § 37.21(a). 199 FTA Circular, Ch. 1.3.1, pp. 1-4–1-5. 200 Id. Ch. 1.2.3, p. 1-3. 201 Id. Ch. 1.4, p. 1-8. 202 Id. Ch. 2.2.1, pp. 2-1–2-2; Ch. 2.2.6, p. 2-4; Ch. 2.3.1, p. 2-6. 203 Id. Ch. 2.4.1, pp. 2-10–2-13; Ch. 2.4.2–2.5.2, pp. 2-10–2-16. 204 Id. Ch. 2.2.2, p. 2-2 (discussing 49 C.F.R. § 37.5(b)). imposing unauthorized special charges on individ- uals with disabilities, including individuals who use wheelchairs, for services that part 37 requires or services that are otherwise necessary to accom- modate individuals with disabilities.188 Part 37 states when public and private entities providing public transportation must make reasonable modi- fications in their policies, practices, and procedures and when they are excused from doing so.189 The ADA directed that the DOT regulations had to include standards that applied to facilities and vehicles covered by Title II and that the standards had to be consistent with the Architectural and Transportation Barriers Compliance Board’s mini- mum guidelines and requirements.190 Part 37 of the DOT regulations require transportation vehicles, such as rapid rail vehicles, light rail vehicles, buses, vans, commuter rail cars, intercity rail cars, and over-the-road buses,191 to meet the minimum guide- lines and accessibility standards set forth in part 38 of the regulations.192 C. FTA Guidance on Title II On November 4, 2015, the FTA released Circular 4710.1, which provides guidance for recipients and subrecipients of FTA financial assistance concerning their compliance with the ADA, Section 504 of the Rehabilitation Act, and the DOT regulations in 49 C.F.R. parts 27, 37, and 38. As 49 C.F.R. § 37.21(b) states, compliance with part 37 and Section 504 of the Rehabilitation Act is a condition to receiving federal financial assistance. The regulations require that transit providers ensure that their services, vehicles, and facilities are acces- sible to and usable by individuals with disabilities.193 Although the DOT regulations apply to transporta- tion services provided by FTA grantees, the Justice Department’s regulations apply to other types of ser- vices that grantees may provide. The regulations in part 37 are to be interpreted consistently with the Justice Department’s regulations, but part 37 pre- vails whenever there is any inconsistency.194 Con- tractors and subcontractors usually are subject to the same obligations as the public transit agencies with which they contract.195 Moreover, transit agencies are obligated to ensure that their contractors comply 188 Id. § 37.5(b)-(d). 189 Id. § 37.5(i)(2)-(3). 190 42 U.S.C. § 12149(a) and (b) (2018). 191 49 C.F.R. part 38, subparts (B) through (H) (2018). 192 Id. § 38.1. 193 FTA Circular, Ch. 1.1.2, p. 1-1. 194 See id. Ch. 1.2.4, pp. 1-3–1-4. 195 Id. Ch. 1.3.2, p. 1-5 (discussing 49 C.F.R. § 37.23(a)).

18 the court to find that the plaintiff had a disability under the ADA.216 The following subsections discuss Title II and rel- evant regulations, as well as cases, applicable to the general accessibility features required by the ADA. F. General Accessibility Requirements Under Title II Chapter 2 of the FTA Circular explains the “regu- lations related to nondiscrimination and other broad crosscutting requirements applicable to fixed route (rail and non-rail), complementary paratransit, and demand responsive services.”217 Part 37 of the regu- lations applies to the following entities, regardless of whether they receive federal financial assistance: any public entity that provides designated public transportation or intercity or commuter rail trans- portation, any private entity that provides public transportation, and any private entity that is not primarily engaged in the business of transporting people but operates a demand responsive or fixed route system.218 Under Part 37, an entity must ensure that vehicle operators and other personnel make use of accessibil- ity-related equipment or features that are required by Part 38.219 A transit agency must maintain acces- sible equipment features in working order, such as lifts and ramps, lighting, mobility aid, securement areas and systems, public address and other commu- nications equipment, seat belts and shoulder har- nesses, if required, and signage.220 For facilities, accessibility features include accessible paths to and within facilities, communications equipment, eleva- tors, fare vending equipment and gates, platforms and handrails, ramps, and signage.221 1. Accessibility Information Transit agencies must provide adequate informa- tion on their transportation services to individuals with disabilities and have adequate communica- tions capacity and accessible formats and technol- ogy, one example of which is a fully accessible website.222 216 Id. at 678. The court dismissed the complaint but allowed the plaintiff to re-plead her ADA claim. Id. at 679. 217 FTA Circular, Ch. 2.1, p. 2-1. 218 Id. Ch. 1.3.1, p. 1-4 (discussing 49 C.F.R. § 37.21(a)). 219 Id. Ch. 2.3.1, p. 2-6 (discussing 49 C.F.R. § 37.167(e)). 220 Id. Ch. 2.3.2, pp. 2-6-2-7 (discussing 49 C.F.R. § 37.161(a) and Appendix D thereto). 221 Id. 222 Id. Ch. 2.8–2.8.2, pp. 2-18–2-20. disability based on what the agency perceives to be safe or unsafe for that individual.205 Individuals with disabilities have the right to decide where they want to sit.206 Transit agencies may not impose special charges on individuals with disabilities,207 require that they be accompanied by an attendant,208 or require them to sign a waiver of liability before receiv- ing service.209 Unless an individual with disabilities poses a sig- nificant risk to the health or safety of others, a transit agency may not refuse service solely because of the appearance of an individual with a disability or the individual’s involuntary behavior that may offend, annoy, or inconvenience an entity’s employees.210 E. Requirement that an Individual Establish that He or She Has a Disability An individual making a claim under the ADA must allege facts establishing that he or she is an individual with a disability. For example, in Weese v. Kalamazoo Metro Transit Service,211 a federal mag- istrate judge recommended the dismissal of the plaintiffs’ ADA complaint that concerned alleged improper action and lack of assistance by the defen- dant’s bus driver. First, rather than describe the nature of their alleged disability, the plaintiffs sim- ply alleged that they had “ambiguous mental health ‘issues.’”212 Second, the plaintiffs failed to show any connection between their disability and the defen- dant’s driver’s alleged action that violated the ADA.213 In Lee v. Southeastern Pennsylvania Transporta- tion Authority,214 the court held that the plaintiff ’s age (84), by itself, was not a disability for purposes of the ADA.215 Although Lee alleged that she required assistance when boarding the defendant’s bus, her complaint failed to explain her disability or how she was limited in any way in her life activities. Thus, the complaint was not factually sufficient for 205 Id. 206 Id. Ch. 2.2.3, p. 2-2 (discussing 49 C.F.R. § 37.5(c)). 207 Id. Ch. 2.2.4, p. 2-3 (discussing 49 C.F.R. § 37.5(d)). 208 Id. Ch. 2.2.5, p. 2-3 (discussing 49 C.F.R. § 37.5(e)). 209 Id. Ch. 2.2.6, p. 2-4 (discussing 49 C.F.R. § 37.5(g)). 210 Id. Ch. 2.2.7, pp. 2-4–2.5 (discussing 49 C.F.R. § 37.5(h)). 211 No. 1:17-cv-747, 2017 U.S. Dist. LEXIS 170716 (W.D. Mich. Sept. 15, 2017). 212 Id. at *5. 213 Id. 214 418 F. Supp. 2d 675 (E.D. Pa. 2005). 215 Id. at 679.

19 dations that may be provided include announcing the outage at other stations; furnishing accessible shuttle bus service; posting outage information on websites, informing riders by signage and recorded announcements, alerting riders by e-mail or text messages via rider notification lists; notifying “rider advocacy groups”; and providing sufficient staffing at affected locations to guide riders who need shut- tle service or information.232 4. Personnel Training The regulations require that every public or pri- vate entity that operates a fixed route or demand responsive system ensure that their personnel are trained proficiently in their duties so that they are able to “operate vehicles and equipment safely and properly assist and treat individuals with disabili- ties who use the service in a respectful and courte- ous way, with appropriate attention to the difference among individuals with disabilities.”233 5. Ramps and Lifts Section 37.163 of the regulations sets forth the requirements applicable to the maintenance of lifts and ramps used to board non-rail vehicles.234 For example, transit agencies must remove vehicles for non-rail fixed route systems with inoperable lifts and ramps from service prior to a vehicle’s next day of service.235 However, when agencies lack sufficient spare vehicles, § 37.163(e) allows agencies to return vehicles with inoperable lifts to service for limited periods.236 A case involving lack of accessibility is Kramer v. Port Authority.237 Kramer testified that there were approximately 160 instances when he was unable to board a Port Authority of Allegheny County (PAT) bus because of inoperable wheelchair lifts.238 How- ever, in every instance the next scheduled bus had an operable lift.239 The court stated that in a Title II case a plaintiff must show that (1) he is a qualified individual with a disability; (2) he was either excluded from or otherwise denied the benefits of some public entity’s services, programs or activities, or was otherwise discriminated against by the public entity; and 232 Id. Ch. 2.3.2, pp. 2-7–2-8 (discussing 49 C.F.R. § 37.161(b)). 233 Id. Ch. 2.9, p. 2-20 (quoting 49 C.F.R. § 37.173). 234 Id. Ch. 2.3.3, pp. 2-8–2-9 (discussing 49 C.F.R. § 37.163(b)-(e)). 235 Id. Ch. 2.3.3, p. 2-9 (discussing 49 C.F.R. § 37.163(d)). 236 Id. Ch. 2.3.3, pp. 2-9–2-10 (discussing 49 C.F.R. § 163(e)). 237 876 A.2d 487 (Pa. Commw. Ct. 2005), appeal denied, 2005 Pa. LEXIS 3061 (Pa., Dec. 28, 2005). 238 Id. at 490. 239 Id. 2. Assistance by Transit Agency Personnel When it is necessary, or if requested, even if tran- sit agency personnel must leave their seats to pro- vide assistance, agency personnel must assist individuals with disabilities with their use of secure- ment systems, ramps, and lifts.223 It may be neces- sary also to assist riders using manual wheelchairs on and off lift platforms or to assist them up and down ramps.224 The Circular explains when transit agency personnel are or are not required to assist individuals with disabilities with paying their fares, to assist their personal care attendants or with lug- gage and baggage, or to hand-carry passengers by lifting them in or out of their mobility devices. 3. Elevators Although Part VI.F of this digest discusses acces- sibility of elevators in transportation facilities, this subpart discusses general accessibility require- ments and elevators. As required by 49 C.F.R. § 37.167(e), a transit agency must “ensure that vehi- cle operators and other personnel make use of acces- sibility-related equipment or features required by Part 38 of this title.”225 An obligation of public and private entities provid- ing transportation services is to maintain elevators in operative condition so that they are “readily acces- sible to and usable by individuals with disabilities.”226 Such features are to be promptly repaired when they are damaged or out of order,227 but the regulations do not prohibit “isolated or temporary interruptions in service or access due to maintenance or repairs.”228 However, although there is no time limit for making repairs, the repairing of accessible features must be a “high priority.”229 Transit agencies must “inspect all accessibility features often enough to ensure that they are operational and to undertake repairs or other necessary actions when they are not.”230 When an accessibility feature is not working, a transit agency must “take reasonable steps to accommodate individuals with disabilities who would otherwise use the feature,”231 such as an ele- vator, so that a rider is not stranded. The accommo- 223 Id. Ch. 2.5.1, pp. 2-15–2-16 (discussing 49 C.F.R. § 37.165(f)). 224 Id. Ch. 2.5.1, p. 2-16. 225 Id. Ch. 2.3.1, p. 2-6 (quoting 49 C.F.R. § 37.167(e)). 226 Id. Ch. 2.3.2, p. 2-6 (quoting 49 C.F.R. § 161(a)). 227 Id. Ch. 2.3.2, p. 2-6 (quoting 49 C.F.R. § 37.161(b)). 228 Id. Ch. 2.3.2, p. 2-6 (quoting 49 C.F.R. § 37.161(c)). 229 Id. Ch. 2.3.2, p. 2-7 (quoting 49 C.F.R. § 37.161, app. D). 230 Id. Ch. 2.3.2, p. 2-7 (discussing 49 C.F.R. § 37.161(a) and (b)). 231 Id. (quoting 49 C.F.R. § 37.161(b)).

20 lift problems” do not violate the ADA,249 the court refused to grant an injunction.250 6. Reasonable Accommodations Title II of the ADA mandates that individuals with disabilities “must be provided with ‘meaningful access’ to a public entity’s programs and services.”251 Public entities must make reasonable modifications of policies, practices, or procedures when the modifi- cations are necessary to avoid discrimination because of a disability.252 Moreover, [a] public entity must provide a reasonable accommodation under the ADA when it knows that the individual is dis- abled and “requires an accommodation of some kind to par- ticipate in or receive the benefits of its services.” ... “[A] public entity is on notice that an individual needs an accom- modation when it knows that an individual requires one, either because that need is obvious or because the individ- ual requests an accommodation.”253 A determination of what would be a reasonable modification “‘is highly fact-specific, requiring [a] case-by-case inquiry.’” 254 In Savage v. South Florida Regional Transporta- tion Authority,255 the plaintiff, who was blind, was fined for boarding a train without a ticket even though he previously had been told he could pay upon disembarking. Because Savage was unable to use the ticketing machines at the station where he embarked,256 he brought Title II claims against the South Florida Regional Transportation Authority (SFRTA) for intentional discrimination and failure to make a reasonable accommodation.257 However, the plaintiff failed to prove intentional discrimination. First, SFRTA’s ticketing policy allowed passengers with disabilities an equal opportunity to purchase tickets in advance and at ticket vending machines (TVM) at kiosks.258 Second, the TVMs met the ADA’s accessibility guidelines.259 Because the court held that SFRTA’s ticketing policy was not discriminatory, the court did not inquire into whether the SFRTA was required to make an accommodation.260 249 Id. at 1018. 250 Id. 251 Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931, 946 (N.D. Ind. 2009) (citation omitted in original). 252 J.V. ex rel. C. V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1299 (10th Cir. 2016). 253 Id. (citation omitted). 254 Anderson v. City of Blue Ash, 798 F.3d 338, 356 (6th Cir. 2015) (citation omitted). 255 523 Fed. App’x. 554 (11th Cir. 2013). 256 Id. at 554. 257 Id. 258 Id. 259 Id. 260 Id. (3) such exclusion, denial of benefits or discrimination was by reason of the plaintiff ’s disability.240 The court ruled that there was enough evidence to support the jury’s verdict that on four separate occasions a PAT operator denied the plaintiff access to a bus, that in three of those instances the opera- tor refused to provide requested assistance, and that in another instance the operator failed to stop.241 Although compensatory damages under Title II are not available in the absence of proof of intentional discrimination,242 the court held that PAT intention- ally violated the plaintiff ’s rights and affirmed a jury verdict for the plaintiff for $10,000.243 In Midgett v. Tri-County Metropolitan Transporta- tion District,244 the plaintiff, who had multiple sclero- sis and used a wheelchair for mobility, was a qualified person with a disability under the ADA. Midgett alleged that the Tri-County Metropolitan Transpor- tation District (TriMet) had violated Title II of the ADA and sought an injunction because of several ser- vice failures that affected him, including TriMet’s failures to maintain wheelchair lifts, to implement an effective system of regular or preventive mainte- nance, to operate a sufficient number of “paratransit cabs,” and to call for paratransit services when needed for individuals with disabilities.245 First, the court noted that the ADA does not require public transit agencies to provide “better ser- vice” to passengers with disabilities than is provided to other passengers, “only comparable service.”246 Second, the court ruled that the plaintiff had standing to seek injunctive relief, because the evi- dence showed that, if TriMet’s allegedly wrongful conduct were allowed to continue, there was a rea- sonable likelihood that Midgett would suffer harm caused by future lift malfunctions.247 Third, the court held that a strong factual show- ing of an intentional and pervasive pattern of mis- conduct is necessary to support an injunction against a state agency.248 Because TriMet had taken corrective action already, and because “occasional 240 Id. at 493 (citation omitted). 241 Id. at 494. 242 Id. at 493. 243 The trial court also awarded the plaintiff $25,307.85 in attorney’s fees. 244 74 F. Supp. 2d 1008 (D. Or. 1999). 245 Id. at 1010-11. 246 Id. at 1012 (emphasis in original). 247 Id. at 1013. 248 Id. at 1013-14 (citation omitted). The court stated that although TriMet is not a state agency per se, it is a state entity because TriMet is subject to the Oregon Tort Claims Act. Id. at 1014.

21 harness for a passenger who uses a wheelchair, transit agencies are not permitted to require an individual with a wheelchair to use a seat belt and shoulder harness, unless all passengers in a vehicle are required to use them.269 If devices are not pri- marily designed for use by individuals with mobility impairments, then transit agencies are not required to accommodate the devices.270 Transit agencies may require all riders in comple- mentary paratransit vehicles to use seat belts and/ or shoulder harnesses, regardless of whether there is a similar requirement that applies to riders on fixed route vehicles.271 In Ford v. New Orleans Regional Transit Authority,272 the plaintiff, who used a wheelchair because of a disability, alleged that after he boarded one of the defendant’s buses the driver failed to secure the bus’s safety harnesses to the plaintiff ’s wheelchair.273 The plaintiff alleged that he was “limited in his access to the transit system because the Transit Authority bus drivers park at steep angles when picking up Plaintiff and continuously fail to properly use the bus safety harnesses when securing Plaintiff.”274 “The Supreme Court has recognized that a ‘mean- ingful access’ standard … is applicable when courts are required to evaluate ADA claims in which the ADA plaintiff is not denied full access to a service, but rather is denied meaningful access.”275 This court ruled that a denial of meaningful access is equivalent to a “‘full denial of access under the ADA’” and that on this issue the plaintiff ’s pleading was sufficient.276 In denying the defendant’s motion to dismiss, the court stated that the plaintiff ’s allega- tions were sufficient, because he alleged that “he was denied safe use of the bus stops and the buses themselves due to the improper use of safety har- nesses” and that he was “sometimes denied accessi- bility to bus stops because of occasional inadequate parking by the bus drivers.”277 269 Id. Ch. 2.4.4, p. 2-14 (discussing 49 C.F.R. §§ 37.5 and 38.23(d)(7)). 270 Id. Ch. 2.4.4, p. 2-13 (discussing 49 C.F.R. § 37.3, Appendix D). 271 Id. Ch. 2.4.4, p. 2-14 (discussing 49 C.F.R. § 38.23(d) (7)). 272 No. 17-10175 (Section A(2), 2018 U.S. Dist. LEXIS 10429 (E.D. La. Jan. 23, 2018). 273 Id. at *2. 274 Id. at *9. 275 Id. at *9-10 (citing Melton v. DART, 391 F.3d 669, 671-72 (5th Cir. 2004). 276 Id. at *10 (citation omitted). 277 Id. at *12-13. 7. Reasonable Modifications of Policies, Practices, or Procedures Subject to the limitations in § 37.169(c)(1)–(3), transit agencies that provide designated public transportation service must modify their policies, practices, or procedures when reasonable modifica- tions become necessary “to avoid discrimination on the basis of disability or to provide program acces- sibility to their services, subject to the limitations of § 37.169(c)(1)-(3).”261 Transit agencies must respond to requests for a reasonable modification of policies and practices, as well as inform the public on how to request reasonable modifications.262 There are three grounds on which a provider of transportation service may deny a requested modi- fication: the requested modification would funda- mentally alter the provider’s services; it would create a direct threat to the health or safety of others; or the requested modification is not neces- sary for a passenger to be able to use the entity’s services, programs, or activities fully for their intended purpose.263 FTA recipients may deny a request for a modification when it “would create an undue financial administrative burden.”264 8. Wheelchairs and Safety Harnesses Transit agencies must transport individuals who use a wheelchair, as long as the wheelchair meets the definition of a wheelchair and may be accommo- dated in the vehicle.265 It is discriminatory to require that a wheelchair be equipped with specific features before they may be transported or to deny service “because of the perceived condition of a passenger’s mobility device….”266 As long as a wheelchair fits in designated areas, transit agencies may require a rider who uses a wheelchair to ride in a designated securement area.267 When transit agencies’ buses and vans have designated securement locations, the agencies are not required to allow individuals with wheelchairs to ride elsewhere in a vehicle.268 Although securement areas in buses and vans are required to have a seat belt and shoulder 261 FTA Circular, Ch. 2.10.1, p. 2-22 (quoting 49 C.F.R. § 37.5(i)(3)). 262 Id. Ch. 2.10.2, p. 2-23 (discussing 49 C.F.R. § 37.169(a)(1) and (2)). 263 Id. Ch. 2.10.2, p. 2-25 (discussing 49 C.F.R. § 37.169(c)(1)-(3)) (quotation marks omitted). 264 Id. Ch. 2.10.2, p. 2-25 (discussing 49 C.F.R. § 27.7(e)) (emphasis in original). 265 Id. Ch. 2.4.1, p. 2-10 (discussing 49 C.F.R. § 37.165(a)). 266 Id. Ch. 2.4.1, p. 2-11 (discussing 49 C.F.R. §§ 37.5(a) and 37.165 (b)). 267 Id. Ch. 2.4.1, p. 2-12 (discussing 49 C.F.R. § 37.165(b)). 268 Id.

22 is required because of a disability and what work or task the animal has been trained to perform.287 The FTA notes that “some persons with hidden disabilities do use animals that meet the regulatory definition of a service animal,” such as animals that “are trained to alert individuals with seizure disor- ders to an oncoming seizure….”288 The DOT regula- tions do not set limits on the number of service animals that a rider may have on a single trip.289 For complementary paratransit or other demand responsive services, transit agencies may ask that riders give notice of their intent to travel with a ser- vice animal.290 An example of an ADA claim of discrimination against an individual with a service animal is Silberman v. Miami-Dade Transit.291 The plaintiff Silberman alleged that Miami Dade Transit (MDT) violated Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 when on several occa- sions MDT’s employees discriminated against him because of his mental disability and his need for a service dog.292 The magistrate judge recommended that the ADA claim be dismissed because the Eleventh Amend- ment barred Silberman’s ADA claim and because there were no allegations of ongoing and continuing violations of the ADA that would permit an action for equitable relief under the Ex parte Young doc- trine.293 However, the Rehabilitation Act claim was viable because of the waiver of sovereign immunity based on the defendant’s acceptance of federal fund- ing.294 The magistrate judge found that Silberman’s complaint 287 Id. 288 Id. Ch. 2.6, p. 2-17. 289 Id. Ch. 2.6, p. 2-18 (discussing 49 C.F.R. § 167(d)). 290 Id. 291 No. 16-22336-CIV-MARTINEZ/GOODMAN, 2016 U.S. Dist. LEXIS 174314 (S.D. Fla. Dec. 15, 2016), adopted by, dismissed without prejudice by, in part, dismissed by, in part, Silberman v. Miami-Dade Transit, 2017 U.S. Dist. LEXIS 219150 (S.D. Fla. 2017), motion granted by, in part, motion denied by, in part, Silberman v. Miami Dade Transit, 2018 U.S. App. LEXIS 12525 (11th Cir. May 11, 2018). 292 Because Dade County was the proper defendant, the magistrate judge recommended that the plaintiff be allowed to amend his complaint to substitute the county as the defendant. Id. at *10-11. 293 Id at *13-14. “Under the doctrine of Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), individu- als may sue state offices, ‘seeking prospective equitable relief to end continuing violations of the law.’” Id. at *13 (citation omitted). 294 Id. at *14-15. G. Title II, Public Entities, and Service Animals 1. DOT Regulations on Service Animals The DOT regulations in 49 C.F.R. part 37 apply to any public entity that provides designated public transportation or intercity or commuter rail trans- portation, any private entity that provides public transportation, and any private entity that is not primarily engaged in the business of transporting people but operates a demand responsive or fixed route system.278 Thus, the DOT regulations on ser- vice animals apply to transit providers. Under the DOT regulations, a service animal is [a]ny guide dog, signal dog, or other animal individually trained to work or perform tasks for an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protec- tion or rescue work, pulling a wheelchair, or fetching dropped items.”279 As the FTA Circular explains, transit agencies must adhere to the DOT definition of a service ani- mal “when assessing whether to accommodate a particular animal.”280 Although “most service ani- mals are dogs, [the] DOT definition recognizes the possibility of other animals.”281 An animal that pro- vides only emotional support or comfort does not come within the definition of a service animal.282 However, transit agencies may choose to accommo- date pets and comfort animals.283 In contrast, only dogs and miniature horses qualify as service ani- mals under the Title II regulations promulgated in 2010 by the Department of Justice.284 Although transit agencies must “permit service animals to accompany individuals with disabilities in vehicles and facilities,”285 they do not have to transport animals not trained to perform specific work or tasks.286 Transit agencies are not permitted to have a policy requiring riders to provide docu- mentation for their service animal before boarding a bus or train or entering a facility; however, transit personnel may ask riders whether a service animal 278 FTA Circular, Ch. 1.3.1, p. 1-4 (discussing 49 C.F.R. § 37.21(a)). 279 Id. Ch. 2.6, p. 2-17 (quoting 49 C.F.R. § 37.3). 280 Id. Ch. 2.6, p. 2-17. 281 Id. 282 Id. 283 Id. 284 28 C.F.R. §§ 35.104 (dogs) and 35.136(i) (2018) (min- iature horses). 285 FTA Circular, Ch. 2.6, p. 2-17 (quoting 49 C.F.R. § 37.167(d)). 286 Id. Ch. 2.6, p. 2-17 (discussing 49 C.F.R. §§ 37.3 and 37.167(d)).

23 (b) represent that such person has a disability for the pur- pose of acquiring an assistance dog unless such person has such disability.302 H. Accessibility of a Transportation Program or Service in Its Entirety The ADA requires that the accessibility of a trans- portation program or activity must be assessed in its entirely. Thus, with respect to existing facilities used for designated public transportation services, it is discriminatory “for a public entity to fail to oper- ate a designated public transportation program or activity conducted in such facilities so that, when viewed in the entirety, the program or activity is readily accessible to and usable by individuals with disabilities.”303 However, there is an exception that a public entity is not required “to make structural changes to existing facilities in order to make such facilities accessible to individuals who use wheel- chairs, unless and to the extent required by section 227(a) [42 U.S.C.S. § 12147(a)] (relating to key alter- ations) or section 227(b) [42 U.S.C.S. § 12147(b)] (relating to key stations).”304 I. Emergency Preparedness In Brooklyn Center for Independence of Disabled v. Bloomberg,305 the issue was whether New York City had violated Title II of the ADA, as well as the Rehabilitation Act of 1974 or the New York City Human Rights Law, by failing to provide people with disabilities meaningful access to its emer- gency preparedness program. A federal district court in New York held that the city’s emergency 302 Kan. stat. ann. § 39-1112(a) and (b) (2018). Kan. stat. ann. § 39-1101 addresses the rights of persons with disabilities and states, in part, that they shall have the same right as the able-bodied to the full and free use of the streets, high- ways, sidewalks, walkways, public buildings, public facilities and other public places; and such persons are entitled to full and equal accommodations, advantages, facilities and privileges of: (a) All common carriers, air- planes, motor vehicles, railroad trains, motor buses, street cars, boats or any other public conveyances or modes of transportation….” Regarding punishment for a violation of Kan. stat. ann. § 39-1112(a) and (b), see Kan. stat. ann. §§ 21-6611 (fines) and 21-6602 (2018) (classification of misdemeanors and terms of confinement). 303 42 U.S.C. § 12148(a)(1) (2018). 304 Id. § 12148(a)(2). Subsection (a)(3) states that “[p]aragraph (1) shall not require a public entity to which paragraph (2) applies[] to provide to individuals who use wheelchairs services made available to the general public at such facilities when such individuals could not utilize or benefit from such services provided at such facilities.” 305 980 F. Supp. 2d 588 (S.D.N.Y. 2013). satisfied the elements to state a cause of action under the [Rehabilitation Act]. He has alleged that (1) he is a qualified individual with a mental disability that requires him to have a service dog; (2) he was excluded from participation in or denied riding the buses of MDT, the public entity; (3) this exclusion stemmed from his disability, which required a service dog; and (4) MDT receives federal funding.295 Because the plaintiff sought compensatory dam- ages under Section 504 of the Rehabilitation Act, he had to “show deliberate indifference on the part of an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the organization’s behalf and who has actual knowledge of discrimination in the organization’s programs and fails to adequately respond.”296 Although the district court permitted Silberman to file an amended complaint, the court held that the amended complaint would have to include specific facts showing intentional or deliberate discrimina- tion by an MDT official to support a claim for com- pensatory damages.297 2. State Legislation Prohibiting False Identification or Use of Service Animals It is a violation of New York law for “any person to knowingly affix to any dog any false or improper identification tag, [or] special identification tag for identifying guide, service, therapy or hearing dogs or purebred license tag.…”298 A violation is punish- able under New York’s penal law or by an action to recover a civil penalty.299 In either case, a first offense is punishable by a fine or civil penalty of not less than $25, but a second offense may warrant a fine or civil penalty of not less than $50.300 However, under the penal law, when a person has committed two or more violations within the preceding five years, a violation is “punishable by a fine of not less than one hundred dollars or imprisonment for not more than fifteen days, or both….301 In Kansas, it is a violation for a person to (a) [r]epresent that such person has the right to be accom- panied by an assistance dog in or upon any place listed in K.S.A. 39-1101, and amendments thereto, or that such per- son has a right to be accompanied by a professional therapy dog in or upon any place listed in K.S.A. 2013 Supp. 39-1110, and amendments thereto, unless such person has the right to be accompanied in or upon such place by such dog pursu- ant to this act; or 295 Id. at *15-16 (citations omitted). 296 Id. at *18 (citation omitted). 297 Id. at *19. 298 N.Y. AGM § 118(1)(c). 299 Id. § 118(2)(a) and (b). 300 Id. § 118(2)(a)(1) and (b)(1). 301 Id. § 118(2)(a)(ii).