Lockett v. Catalina Channel Express ( 2007 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TRICIA LOCKETT,                               No. 05-56483
    Plaintiff-Appellant,
    v.                               D.C. No.
    CV-02-08833-RJK
    CATALINA   CHANNEL EXPRESS, INC.,
    OPINION
    Defendant-Appellee.
    
    Appeal from the United States District Court
    for the Central District of California
    Robert J. Kelleher, Senior Judge, Presiding
    Argued and Submitted
    June 4, 2007—Pasadena, California
    Filed August 9, 2007
    Before: Cynthia Holcomb Hall and Consuelo M. Callahan,
    Circuit Judges, and James L. Robart,* District Judge.
    Opinion by Judge Callahan;
    Dissent by Judge Hall
    *The Honorable James L. Robart, United States District Judge for the
    Western District of Washington, sitting by designation.
    9535
    LOCKETT v. CATALINA CHANNEL EXPRESS        9537
    COUNSEL
    Russell C. Handy, Center for Disability Access, LLP, of San
    Marcos, California, for plaintiff-appellant Tricia Lockett.
    Peter S. Forgie, Forgie & Leonard, LLP, of Santa Monica,
    California, for defendant-appellee Catalina Channel Express,
    Inc.
    9538         LOCKETT v. CATALINA CHANNEL EXPRESS
    OPINION
    CALLAHAN, Circuit Judge:
    Catalina Channel Express (“CCE”) operates a ferry
    between Long Beach and Catalina Island. In response to
    requests by a frequent passenger for an area free of animal
    dander, CCE adopted a policy of excluding animals from the
    Commodore Lounge, a separate and more expensive section
    of the ferry. Tricia Lockett is legally blind and uses a service
    animal, a guide dog, to assist her. On September 2, 2002,
    Lockett requested a ticket in the Commodore Lounge, but
    CCE refused to sell her a ticket because it would not allow her
    to take her guide dog into the area. Two weeks later CCE
    changed its policy, but two months later Lockett filed this
    lawsuit alleging that CCE violated the Americans with Dis-
    abilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. On cross-
    motions for summary judgment, the district court granted
    summary judgment for CCE. We affirm on the narrow ground
    that CCE, when suddenly faced with a possible threat to the
    health and safety of its passengers, made a one-time reason-
    able judgment under 28 C.F.R. § 36.208 while it investigated
    the competing interests.
    I
    CCE operates a public ferry boat service between Long
    Beach and Catalina Island. The trip takes an hour each way.
    In addition to the general passenger seating area, the Commo-
    dore Lounge, located on the second deck, serves as a semi-
    private sitting area for a small number of passengers who pay
    an additional ten dollars each way for access. The Commo-
    dore Lounge has leather seats that slightly recline and have
    tray tables and head rests. Also, Commodore Lounge passen-
    gers have the privilege of priority boarding and are served a
    complimentary drink.
    LOCKETT v. CATALINA CHANNEL EXPRESS                9539
    In 2000, CCE received a request for a dander-free zone
    from a frequent passenger who claimed to be allergic to ani-
    mals. CCE determined that the Commodore Lounge was the
    only area on the ferry where passengers could be effectively
    insulated from contact with animals and made dander-free.1 In
    early 2001, CCE instituted a policy prohibiting all animals,
    including service animals, from the Commodore Lounge.
    Lockett is legally blind and uses a service animal, a guide
    dog, to assist her in travel and mobility. On September 2,
    2002, she sought to purchase a ticket to travel on the ferry to
    Catalina Island in the Commodore Lounge. CCE declined to
    sell Lockett a ticket for the Commodore Lounge because it
    did not permit any animals, even guide dogs, in the Commo-
    dore Lounge. CCE did sell Lockett a general passage ticket
    and Lockett traveled to Catalina Island and back to Long
    Beach in the main seating area.
    CCE changed its animal policy two weeks later to allow
    service animals in the Commodore Lounge. CCE estimates
    that now service animals are brought into the Commodore
    Lounge once or twice a year.
    II
    On November 18, 2002, Locket filed a complaint in the
    United States District Court for the Central District of Califor-
    nia seeking damages and injunctive relief under the ADA,
    certain California statutes, and common law. Lockett stated
    that the experience of being denied a ticket to the Commodore
    Lounge was “embarrassing and frustrating and humiliation
    [sic].”
    1
    Although the district court observed that the parties disagreed on
    whether the case concerned architectural barriers as defined under the
    ADA standards, it declined to decide the case on that issue. We do not
    address any issue concerning architectural barriers because the parties
    have not raised any such issue on appeal.
    9540               LOCKETT v. CATALINA CHANNEL EXPRESS
    In the fall of 2004, the parties filed motions for summary
    judgment. On August 24, 2005, the district court entered an
    order denying Lockett’s motion for summary judgment and
    granting CCE’s motion for summary judgment. The district
    court rejected Lockett’s contention that CCE violated 42
    U.S.C. § 12182(b)(1)(A)(ii) in failing to modify its policies to
    permit service animals into the Commodore Lounge.2 It held
    that CCE had provided Lockett with “different and separate
    accommodations” as allowed by 42 U.S.C. § 12182(b)(1)
    (A)(iii).3 As a separate basis for granting CCE summary judg-
    ment, the district court held that CCE’s refusal to admit
    Lockett’s service animal to the Commodore Lounge was per-
    missible under 28 C.F.R. §§ 36.208, 36.301(a), and 36.302(c)
    based on health and safety concerns. Lockett filed a timely
    appeal.
    2
    42 U.S.C. § 12182(b)(1)(A)(ii) reads:
    (ii)    Participation in unequal benefit
    It shall be discriminatory to afford an individual or class of indi-
    viduals, on the basis of a disability or disabilities of such individ-
    ual or class, directly, or through contractual, licensing, or other
    arrangements with the opportunity to participate in or benefit
    from a good, service, facility, privilege, advantage, or accommo-
    dation that is not equal to that afforded to other individuals.
    3
    42 U.S.C. § 12182(b)(1)(A)(iii) reads:
    (iii)   Separate benefit
    It shall be discriminatory to provide an individual or class of indi-
    viduals, on the basis of a disability or disabilities of such individ-
    ual or class, directly, or through contractual, licensing, or other
    arrangements with a good, service, facility, privilege, advantage,
    or accommodation that is different or separate from that provided
    to other individuals, unless such action is necessary to provide
    the individual or class of individuals with a good, service, facil-
    ity, privilege, advantage, or accommodation, or other opportunity
    that is as effective as that provided to others.
    LOCKETT v. CATALINA CHANNEL EXPRESS            9541
    III
    As noted by the district court, pursuant to Federal Rule of
    Civil Procedure 56(c), summary judgment is proper only
    where “the pleadings, depositions, answers to interrogatories,
    and admissions on file, together with the affidavits, if any,
    show that there is no genuine issue as to any material fact and
    that the moving party is entitled to a judgment as a matter of
    law.” We review the district court’s grant of summary judg-
    ment for CCE de novo. Oregon Paralyzed Veterans of Amer-
    ica v. Regal Cinemas, Inc., 
    339 F.3d 1126
    , 1130 (9th Cir.
    2003). We “must determine, viewing the evidence in the light
    most favorable to the nonmoving party, whether there are any
    genuine issues of material fact and whether the district court
    correctly applied the relevant substantive law.” 
    Id. at 1131.
    IV
    [1] It is undisputed that Lockett is a member of a protected
    class of disabled persons under 42 U.S.C. § 12102(2). In light
    of the purposes of the ADA, CCE’s refusal to sell Lockett a
    ticket to the Commodore Lounge cannot be justified as a sep-
    arate arrangement under 42 U.S.C. § 12182(b)(1)(A)(iii). This
    subsection allows for a separate arrangement or facility when
    “necessary to provide the individual . . . with a good, service,
    facility, privilege, advantage, or accommodation, . . . as effec-
    tive as that provided to others.” For this subsection to come
    into play, there must be (1) a separate arrangement or facility,
    which (2) was necessary for the disabled person, and (3) was
    “as effective as” that for which it was a substitution. Here,
    CCE did not offer Lockett a separate arrangement or facility,
    but relegated her to the general passenger area. Thus, this sub-
    section is not applicable. Moreover, even if it were applicable,
    the general passenger area was not equivalent to — not “as
    effective as” — the Commodore Lounge. The record shows
    that some travelers were willing to pay a premium for a seat
    that reclines, early boarding, and being served a cookie and a
    drink. In other words, the Commodore Lounge is the equiva-
    9542             LOCKETT v. CATALINA CHANNEL EXPRESS
    lent of a first class section on an airplane. Construing the sub-
    section to allow the relegation of an individual with a
    disability to tourist class, or to the back of the airplane, on the
    rationalization that the individual was allowed to travel on the
    same plane would distort the letter and intent of the subsec-
    tion. Furthermore, even if it could be argued that there was a
    factual question as to whether the general passenger area was
    “as effective as” the Commodore Lounge, that question would
    be a matter for the jury, and could not be determined on sum-
    mary judgment. CCE’s relegation of Lockett to the general
    passenger area was not a permissible accommodation under
    42 U.S.C. § 12182(b)(1)(A)(iii).
    V
    We recognize, however, that Lockett’s request for passage
    in the Commodore Lounge created a dilemma for CCE. Its
    prohibition on animals in the Commodore Lounge was
    adopted in response to a passenger’s assertion of an allergy to
    animal dander. Accordingly, CCE’s employees had to decide
    on the spot whether to potentially expose passengers in the
    Commodore Lounge to dander or to ask Lockett to ride in the
    general passenger area. We read 29 C.F.R. § 36.208 as per-
    mitting CCE to ask Lockett to travel in the general passenger
    area while it investigated the matter.4
    4
    28 C.F.R. § 36.208 reads:
    (a) This part does not require a public accommodation to permit
    an individual to participate in or benefit from the goods, services,
    facilities, privileges, advantages and accommodations of that
    public accommodation when that individual poses a direct threat
    to the health or safety of others.
    (b) Direct threat means a significant risk to the health or safety
    of others that cannot be eliminated by a modification of policies,
    practices, or procedures, or by the provision of auxiliary aids or
    services.
    (c) In determining whether an individual poses a direct threat to
    the health or safety of others, a public accommodation must make
    LOCKETT v. CATALINA CHANNEL EXPRESS                     9543
    [2] This regulation provides that an individual can be
    denied an accommodation when the individual “poses a direct
    threat to the health or safety of others.” Subsection (b) notes
    that direct threat means that the significant risk “cannot be
    eliminated by a modification of policies, practices, or proce-
    dures, or by the provision of auxiliary aids or services.” Sub-
    section (c) states:
    In determining whether an individual poses a direct
    threat to the health or safety of others, a public
    accommodation must make an individualized assess-
    ment, based on reasonable judgment that relies on
    current medical knowledge or on the best available
    objective evidence, to ascertain: the nature, duration,
    and severity of the risk; the probability that the
    potential injury will actually occur; and whether rea-
    sonable modifications of policies, practices, or pro-
    cedures will mitigate the risk.
    [3] Applying the regulation to the situation presented in this
    case, it appears that CCE was faced with a potential threat to
    the health and safety of others, and that the threat could not
    be eliminated by a modification of the policy. Accordingly,
    CCE had to make a reasonable judgment based on the avail-
    able medical knowledge and objective evidence.5 We hold
    an individualized assessment, based on reasonable judgment that
    relies on current medical knowledge or on the best available
    objective evidence, to ascertain: the nature, duration, and severity
    of the risk; the probability that the potential injury will actually
    occur; and whether reasonable modifications of policies, prac-
    tices, or procedures will mitigate the risk.
    5
    There is no indication that CCE knew, or should have known, whether
    any passenger in the Commodore Lounge on September 2, 2002, was
    allergic to animal dander. Moreover, there is no indication that CCE knew,
    or should have known, the severity of any passenger’s alleged allergy to
    dander. However, it is not difficult to conceive of the potential health ram-
    ifications for a passenger with a severe allergy to animal dander who, hav-
    9544           LOCKETT v. CATALINA CHANNEL EXPRESS
    that CCE’s one-time request that Lockett accept passage in
    the general passenger area was a reasonable judgment under
    28 C.F.R. § 36.208.
    We hasten to note that this holding is limited to CCE’s sin-
    gle determination made on September 2, 2002, and should not
    be read as suggesting that CCE’s change in its policy to allow
    service animals in the Commodore Lounge was not compelled
    under the ADA. To the contrary, it is clear that ultimately the
    entity asserting a “direct threat” as a basis for excluding an
    individual bears a heavy burden of demonstrating that the
    individual poses a significant risk to the health and safety of
    others. See Bragdon v. Abbot, 
    524 U.S. 624
    , 649-50 (1998).
    Indeed, CCE may well have violated the ADA had it not
    changed its policy.6
    ing been informed that animals are not allowed into the Commodore
    Lounge, is then confronted with a service dog entering the area. We can-
    not say that it was unreasonable for CCE to ask Lockett to ride in the gen-
    eral passenger area with her service animal while it ascertained how
    severe an allergic reaction to animal dander was medically possible or
    likely, and informed its riders that service animals would be allowed in the
    Commodore Lounge.
    6
    28 C.F.R. 36.302 reads, in relevant part:
    (a) General. A public accommodation shall make reasonable
    modifications in policies, practices, or procedures, when the
    modifications are necessary to afford goods, services, facilities,
    privileges, advantages, or accommodations to individuals with
    disabilities, unless the public accommodation can demonstrate
    that making the modifications would fundamentally alter the
    nature of the goods, services, facilities, privileges, advantages, or
    accommodations.
    ...
    (c) Service animals—
    (1) General. Generally, a public accommodation shall modify
    policies, practices, or procedures to permit the use of a service
    animal by an individual with a disability.
    LOCKETT v. CATALINA CHANNEL EXPRESS                      9545
    However, in this case we are asked to determine whether
    CCE’s failure to immediately accede to Lockett’s request sup-
    ports a cause of action. Neither party has cited any case
    directly on point and we have not found such a case.7 Most
    of the cases we have reviewed addressed a provider’s ultimate
    decision concerning the accommodation it is willing to make.
    For example, in Anderson v. Little League Baseball, Inc., 
    794 F. Supp. 342
    , 345-46 (D. Ariz. 1992), the district court issued
    a temporary restraining order because the defendant adopted
    a rule prohibiting a person in a wheelchair from being in a
    coach’s box on the field, and had not conducted an individual-
    ized assessment. In Bombrys v. City of Toledo, 
    849 F. Supp. 1210
    , 1221 (N.D. Ohio 1993), the district court granted relief
    against the city’s blanket exclusion of insulin-dependent dia-
    betics from the police force. Also, in Doe v. District of
    Columbia, 
    796 F. Supp. 559
    , 573 (D.D.C. 1992), the district
    court granted relief because the city had withdrawn its offer
    of employment based on the plaintiff being HIV-positive.
    None of these cases concerned a lawsuit brought after the
    defendant had made the requested accommodation under the
    ADA, but challenging the defendant’s failure to make an
    accommodation as soon as it was first requested.8
    [4] Faced with an issue of first impression, we conclude
    that CCE’s single decision on September 2, 2002, to ask
    Lockett to ride in the general passenger area was a reasonable
    judgment under 28 C.F.R. § 36.208. On that day, the ticket
    7
    The district court cited only an unpublished district court case, Pool v.
    Riverside Health Servs., Inc., No-941430-PFK, 
    1995 WL 519129
    (D. Kan.
    Aug. 25, 1995). In that case, the district court determined that Ms. Pool,
    who was confined to a wheelchair, could not state a cause of action under
    the ADA based on the hospital’s refusal to allow her to take her “assis-
    tance dog” into the hospital’s emergency services department where Ms.
    Pool’s fiancé was being treated. Although this case shows that not all
    refusals to accommodate are actionable, it is too factually distinct from the
    case before this court to provide much guidance.
    8
    At the time that Lockett filed her complaint, CCE had already changed
    its policy to allow service animals in the Commodore Lounge.
    9546         LOCKETT v. CATALINA CHANNEL EXPRESS
    seller was required to make a “reasonable judgment” based on
    “current medical knowledge” and the “best available objec-
    tive evidence.” The ticket seller knew only that CCE had
    adopted a policy based on a passenger’s alleged allergy, and
    there is no suggestion that the person had any training to eval-
    uate the possible effect on an allergic passenger of the pres-
    ence of a service animal in the Commodore Lounge. With the
    ferry scheduled to depart, selling Lockett a ticket for the gen-
    eral passenger area was a reasonable judgment. It allowed
    CCE to provide Lockett with transportation to Catalina Island,
    as she requested, albeit without the benefits and the cost of the
    Commodore Lounge.
    [5] We further hold that in this instance, the determination
    that selling Lockett a ticket to the general passenger area was
    a reasonable judgment under 28 C.F.R. § 36.208 was properly
    made on the parties’ cross-motions for summary judgment.
    All the evidence as to what the CCE employees knew on Sep-
    tember 2, 2002 was before the district court. Lockett does not
    allege that she was precluded from presenting relevant evi-
    dence. Instead, on appeal, she argues that the district court
    should have granted her summary judgment on the liability
    issue. We agree with the district court that the evidence
    required a finding that CCE’s decision on September 2, 2002
    to relegate Lockett to the general passenger area was a reason-
    able judgment under 28 C.F.R. § 36.208. Accordingly, on this
    ground only, the district court’s order is AFFIRMED.
    HALL, Circuit Judge, dissenting:
    Because I find that Catalina Channel Express failed to
    make the individualized assessment required under the Amer-
    icans with Disabilities Act, and failed to consider whether rea-
    sonable modifications could be made in this individual case,
    I respectfully dissent.
    LOCKETT v. CATALINA CHANNEL EXPRESS             9547
    Under the ADA, a place of public accommodation may
    exclude a disabled individual from a service or opportunity,
    if that individual “poses a direct threat to the health or safety
    of others.” 42 U.S.C. § 12182(b)(3). A “direct threat” is
    defined as “a significant risk to the health or safety of others
    that cannot be eliminated by a modification of policies, prac-
    tices, or procedures or by the provision of auxiliary aids or
    services.” 
    Id. “When determining
    whether an individual poses
    a ‘direct threat,’ a place of public accommodation must not
    base its calculus on stereotypes or generalizations about the
    effects of a disability but rather must make ‘an individualized
    assessment, based on reasonable judgment that relies on cur-
    rent medical knowledge or on the best available objective evi-
    dence.’ ” Montalvo v. Radcliffe, 
    167 F.3d 873
    , 877 (4th Cir.
    1999) (quoting 28 C.F.R. § 36.208(c)). This assessment must
    consider the nature, duration, and severity of the risk. 28
    C.F.R. § 36.208.
    Under this rule, a good faith belief that a risk exists is not
    sufficient. Bragdon v. Abbott, 
    524 U.S. 624
    , 649 (1998). The
    person making the relevant decision not to provide the service
    must base his decision on the objective information available
    to him. See 
    id. In Bragdon,
    a dentist had declined to see an
    HIV-positive patient on the basis that she would have posed
    a risk to the health of others. The Supreme Court used the
    opportunity to elaborate on the “direct threat” standard:
    The existence, or nonexistence, of a significant risk
    must be determined from the standpoint of the per-
    son who refuses the treatment or accommodation,
    and the risk assessment must be based on medical or
    other objective evidence. As a health care profes-
    sional, petitioner had the duty to assess the risk of
    infection based on the objective, scientific informa-
    tion available to him and others in his profession.
    His belief that a significant risk existed, even if
    maintained in good faith, would not relieve him from
    liability. To use the words of the question presented,
    9548         LOCKETT v. CATALINA CHANNEL EXPRESS
    petitioner receives no special deference simply
    because he is a health care professional.
    
    Id. However, the
    Court has previously held that medical judg-
    ments based on the duration, severity and nature of the risk
    are entitled to deference. See School Bd. of Nassau Cty. v.
    Arline, 
    480 U.S. 273
    , 288 (1987).
    The risk to others must also be “significant.” 42 U.S.C.
    § 12182(b)(3). The ADA’s statutory language regarding the
    threat to others was adopted from Arline, a case dealing with
    infectious disease. See 
    Bragdon, 524 U.S. at 649
    (discussing
    the influence of Arline). As the Court acknowledged, “Arline
    and the ADA do not ask whether a risk exists, but whether it
    is significant.” 
    Bragdon, 524 U.S. at 649
    . In Doe v. District
    of Columbia, 
    796 F. Supp. 559
    (D.D.C. 1992), for example,
    the district court held that hiring an HIV-positive firefighter
    would pose no “measurable risk” of infection to other fire-
    fighters or the public. 
    Id. at 569.
    The ADA’s required analysis does not end, however, with
    a finding of significant risk. If it finds such a threat, the ser-
    vice provider must then ascertain “whether reasonable modifi-
    cations of policies, practices, or procedures will mitigate the
    risk, to the point of eliminating it as a significant risk.” Mon-
    
    talvo, 167 F.3d at 877
    (quoting 28 C.F.R. § 36.208(c) and 42
    U.S.C.§ 12182(b)(3))(internal punctuation omitted). As the
    Fourth Circuit explained in Montalvo, one of the few appel-
    late decisions dealing with these provisions, “a failure to
    make a reasonable modification is itself an act of discrimina-
    tion unless the place of public accommodation can demon-
    strate that implementing the modification would
    fundamentally alter the nature of the program.” 
    Id. The interaction
    between Lockett and Catalina Channel
    Express falls far short of this statutory procedure. First, CCE
    made no “individualized assessment” as to the health effects
    of bringing Lockett’s dog aboard. Though it had limited
    LOCKETT v. CATALINA CHANNEL EXPRESS             9549
    objective evidence, it could have investigated whether the
    female passenger who had complained about dander was in
    fact on the ship, or whether there were other allergic passen-
    gers in the lounge. Though CCE did not appear to act with
    malice, pure intentions and good faith are not sufficient under
    the ADA.
    Second, the risk to others was not found, objectively, to be
    significant. The frequent passenger who allegedly requested a
    dander-free environment (a passenger who was never
    deposed, let alone named, by CCE) did not suggest this policy
    was necessary as a matter of serious public health concern,
    along the lines of an infectious disease. It bears repeating that
    CCE never determined whether any allergic passenger would
    even be in the lounge area.
    The opinion in this case treats the decision about Lockett
    as an individualized assessment, but it appears that the ticket
    agent was simply applying CCE’s policy as a matter of reflex.
    Under the ADA, the standard for judging the application of a
    policy is the same as the standard for one-time action: “Safety
    requirements must be based on actual risks and not on mere
    speculation, stereotypes, or generalizations about individuals
    with disabilities.” 28 C.F.R. 36.301. In Leiken v. Squaw Val-
    ley Ski Corp., 
    1994 WL 494298
    , 3 A.D. Cases 945 (E.D. Cal.
    1994), the district court granted a preliminary injunction
    against a ski resort’s policy of barring wheelchairs from the
    cable car used to access a high-altitude recreation area. The
    resort had justified the policy on the grounds that wheelchairs
    would hinder any emergency evacuation of the cable car. The
    district court held that the ski resort “cannot justify its policy
    as a series of individual safety-based exclusions because it has
    not performed individualized risk assessments.” Id.; see also
    Bombrys v. City of Toledo, 
    849 F. Supp. 1210
    , 1216 (N.D.
    Ohio 1993); Anderson v. Little League Baseball, Inc., 794 F.
    Supp. 342, 345 (D. Ariz. 1992). As in these cases, CCE made
    a blanket policy and applied it to Lockett without considering
    the individual facts of her case.
    9550         LOCKETT v. CATALINA CHANNEL EXPRESS
    Finally, CCE’s employees did not investigate whether a
    “reasonable modification” would neutralize any health threat.
    Though the lounge was allegedly the only area where allergic
    passengers could be segregated from animals, CCE did not
    investigate whether there were in fact other allergic passen-
    gers aboard, whether any passengers could be persuaded to sit
    elsewhere, or whether Lockett could be seated in any particu-
    lar part of the lounge where the dog’s dander would pose the
    least risk.
    Though it was no doubt wise and well-intentioned for CCE
    to eliminate this policy following the Lockett incident, this
    change of course does not remedy whatever damage Lockett
    alleges from the initial violation. Any sentiment that her claim
    is too small to be worthwhile, or that CCE should not be pun-
    ished when it has acted admirably otherwise, is an issue best
    left to the jury when determining damages. Accordingly, I
    dissent.