Popovich v. Cuyahoga County Court of Common Pleas , 150 F. App'x 424 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0805n.06
Filed: September 27, 2005
No. 04-3734
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LAUREN POPOVICH, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CUYAHOGA COUNTY COURT OF ) NORTHERN DISTRICT OF OHIO
COMMON PLEAS, DOMESTIC )
RELATIONS DIVISION, )
)
Defendant-Appellee. )
Before: KEITH and DAUGHTREY, Circuit Judges; WILLIAMS,* District Judge
PER CURIAM. This litigation arose in the wake of a separate action brought by the
father of plaintiff Lauren Popovich, in which he charged a violation of the Americans with
Disabilities Act (the ADA), 42 U.S.C. §§ 12111 et seq., and the Rehabilitation Act, 29 U.S.C.
§§ 794 et seq., by the defendant in this case, the domestic relations division of the
Cuyahoga County (Ohio) Court of Common Pleas. Citing Title II of the ADA, which prohibits
exclusion from public services on the basis of disability, Joseph Popovich alleged that as
a “qualified individual with a disability,” a hearing impairment, he had been denied access
to full participation in litigation involving Lauren’s custody when the domestic relations court
*
The Hon. Glen M. Williams, United States District Judge for the Western District of Virginia, sitting
by designation.
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refused to accommodate his disability by supplying transcription assistance that would
permit him to hear the court proceedings. See Popovich v. Cuyahoga Cty. Court of
Common Pleas, 227 F.3d 627 (6th Cir. 2000), rehearing en banc 276 F.3d 808 (6th Cir.
2002), cert. denied 537 U.S. 812 (2002). Denied the right to intervene in her father’s ADA
action, Lauren Popovich later filed her own lawsuit, alleging that her rights under the ADA
had been violated, based on her association with a qualified individual with a disability,
Joseph Popovich. Specifically, Lauren claimed that she was injured by delays in the
custody litigation, which were caused by the domestic relations court’s failure to
accommodate her father’s disability, which in turn deprived her of her father’s
companionship for a period of five years. She did not claim that she herself had been
denied access to the domestic relations court or its services.
The district court granted the defendant’s motion to dismiss, holding that the plaintiff
had failed to establish standing to sue under either the ADA or the Rehabilitation Act. We
find no reversible error and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1992, Lauren Popovich was the subject of a custody suit filed by her mother
against her father in the Cuyahoga domestic relations court, the defendant here. By order
of the court, she was named a defendant in the custody case and was appointed a guardian
ad litem. In August 1992, during the course of the custody proceeding, the plaintiff’s mother
filed a second action against Joseph Popovich, charging him with domestic violence. That
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complaint resulted in the issuance of a protective order, the effect of which, according to
the plaintiff, “was to remove [her] from Mr. Popovich’s home and to prohibit him from having
any contact with her.” The protective order was renewed in June 1993 and, the plaintiff now
contends, “[a]s a result, Plaintiff/Appellant was not allowed to visit, either supervised or
unsupervised, her father from August 1992 until the fall of 1997.” Meanwhile, the custody
litigation was drawn out for some two years due to a continuing dispute over the court’s
obligation under the ADA to provide hearing-assistance facilities for the plaintiff’s father.
The dispute was apparently resolved in 1994, when the Cuyahoga court agreed to provide
transcription services for Joseph Popovich.1
On December 29, 2002, on her 20th birthday and over five years after she resumed
her relationship with her father, Lauren Popovich filed suit in federal district court, charging
discrimination and retaliation in violation of both Title II of the ADA and the Rehabilitation
Act. According to the district court, her claims were “[e]ssentially . . . that the Common
Pleas Court refused to accommodate her father . . . during the custody proceedings . . . and
as a result of the court’s conduct she was denied access to her father for about five years.”
She asserted that, as a defendant in the custody case, “she was discriminated against due
to her association with her father, an individual with a disability.” In response, the defendant
1
Although the custody dispute may have been resolved in state court, the ADA action filed in federal
court in 1995 proceeded to trial and resulted in a jury verdict in favor of Joseph Popovich. On appeal, the
verdict was set aside and the case was remanded for retrial. See Popovich, 276 F.3d at 818. At the time this
case was argued, the retrial had not taken place.
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moved to dismiss this case, contending, among other defenses, that the plaintiff did not
have standing to sue under the ADA and the Rehabilitation Act.
The district court granted the motion to dismiss, holding that although the ADA
provides a cause of action for associational discrimination in access to public services, the
plaintiff had not alleged that she was “excluded from participation in the services or activities
of a public entity because of . . . her association with a disabled person.” The plaintiff now
appeals that ruling.
The district court also held that the Rehabilitation Act does not contain a provision
prohibiting associational discrimination and dismissed that claim as well.
II. DISCUSSION
A. Associational Discrimination under the ADA
As the defendant points out, and as the plaintiff candidly admits, Title II (governing
public services) of the ADA – unlike Title I (employment) and Title III (public
accommodations) – does not contain an explicit provision prohibiting discrimination by
association with a qualified person with a disability.2 One could argue, as the defendant
2
See Title I, in 42 U.S.C. § 12112(b)(4), defining discrimination to include the “excluding or otherwise
denying equal jobs or benefits to a qualified individual because of the known disability of an individual with
whom the qualified individual is known to have a relationship or association,” and the parallel Title III provision
in 42 U.S.C. § 12182(b)(1)(E), making it discriminatory to deny accommodations “to an individual or entity
because of the known disability of an individual with whom the individual or entity is known to have a
relationship or association.”
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does here, that this difference in the plain language of the ADA titles reflects a deliberate
choice by Congress not to permit an action under Title II for associational discrimination.
If accepted, such an argument would foreclose standing to the plaintiff in this case.
However, we have previously held that Title II does encompass a prohibition against
associational discrimination, adopting the Second Circuit’s analysis in Innovative Health
Systems, Inc., v. City of White Plains, 117 F.3d 37, 46-48 (2d Cir. 1997).
In Innovative Health Systems, the Second Circuit noted the absence of an express
prohibition in Title II’s definition and discrimination sections but gave a broad reading to Title
II’s enforcement provision, 42 U.S.C. § 12133, which extends relief to “any person alleging
discrimination on the basis of disability.” (Emphasis added.) The Second Circuit also noted
the existence of regulations implementing Title II, one of which provides that “[a] public entity
shall not exclude or otherwise deny equal services, programs, or activities to an individual
or entity because of the known disability of an individual with whom the individual or entity
is known to have a relationship or association.” 28 C.F.R. § 35.130(g). That regulation, the
court pointed out, was intended to incorporate “the prohibitions of discrimination on the basis
of association from Titles I and III.” Innovative Health Sys., 117 F.3d at 47, citing H.R.Rep.
No. 485(III) at 51 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 474.
We applied the reasoning of Innovative Health Systems to a similar fact situation in
MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002). In both cases, a drug
rehabilitation center was denied a zoning permit and brought suit under Title II of the ADA,
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claiming a denial of rights based on association with qualified individuals with a disability,
i.e., recovering drug addicts. In both cases, the reviewing courts found standing to sue on
the basis of the plaintiff’s association with disabled persons.
Our opinion in MX Group is inapplicable to the facts in this case, however, and the
plaintiff’s reliance on it to establish her standing to sue in this action is misplaced. Unlike
the treatment centers in Innovative Health Systems and MX Group, both of which were
denied permits to operate, Lauren Popovich has not been denied access to or participation
in any of the public services covered by Title II. In other words, Lauren Popovich – although
allegedly deprived of her father’s companionship because of delays in her custody case –
has not suffered an “ADA injury.” It was for this reason that the district court held that the
plaintiff had failed to establish standing under Title II, given the fact that her association with
her father did not result in her exclusion from the custody proceedings.
The trial judge also noted that the complaint filed in this case alleged that Lauren had
been denied her father’s companionship for five years not as a result of the proceedings in
the custody case – indeed, there is no indication in the complaint concerning the outcome
of the custody dispute. Instead, the complaint alleges that Lauren was removed from
father’s home as the result of the protective order issued in a separate case and based on
allegations of domestic violence committed against the plaintiff’s mother. The complaint
further alleges that it was this protective order that prevented the plaintiff from seeing her
father for some five years. And although Lauren Popovich echoes her father’s criticism that
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it was “unfair” to issue the protective order in an ex parte proceeding and later to renew it
over Joseph Popovich’s objection, there is no claim that the issuance or enforcement of the
protective order violated the ADA in any respect. Hence, there is no causal connection
shown on the face of the complaint between the discrimination allegedly suffered by Joseph
Popovich and the injury alleged by his daughter.
B. Associational Discrimination under the Rehabilitation Act
Although the plaintiff purported to appeal the district court’s ruling on her standing
under the Rehabilitation Act, she did not discuss that decision in her brief before this court
and, thus, appears to have abandoned her appeal of this issue. We nevertheless note that
the district court incorrectly concluded that the Rehabilitation Act does not have an
associational discrimination component. In fact, just as Title II of the ADA extends relief to
“any person alleging discrimination on the basis of disability,” 42 U.S.C. § 1233, the
Rehabilitation Act’s remedies are available to “any person aggrieved” by discrimination
based on disability. 29 U.S.C. § 794a(a)(2). As a result, we noted in MX Group that
associational discrimination claims are viable under the Rehabilitation Act, just as they are
under the ADA. See MX Group, Inc. v. City of Covington, 293 F.3d at 332; see also
Andrews v. State of Ohio, 104 F.3d 803, 807 (6th Cir. 1997) (because “standards under both
of the acts are largely the same, cases construing one statute are instructive in construing
the other”); Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d
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725, 731 (9th Cir. 1999) (noting that Congress has instructed that both acts are to be
interpreted consistently).
III. CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court.
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