United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
ROBERT S. LASNIK, District Judge.
This matter comes before the Court on defendant's motion for summary judgment. Dkt. # 31. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:
Defendant Central Puget Sound Transit Regional Authority, dba Sound Transit is a special-purpose metropolitan municipal corporation responsible for constructing and operating high-capacity public transportation systems in a "district" spanning three contiguous counties in Washington state. Decl. of James Niemer ("Niemer Decl.") ¶ 3 (Dkt. # 31-1). Four local transit agencies operate within defendant's district and coordinate public transportation services with defendant, including Pierce Transit ("Pierce"). Id . ¶ 5. Under a Joint Operating Agreement with defendant, Pierce operates a bus service in South King and Pierce Counties; defendant provides Pierce with buses. Id . ¶ 6; Niemer Decl. Exh. A at 1, 16 (Dkt. # 31-2). One of the bus models defendant and Pierce use is the MCI coach, which seats 57 passengers and is designed to be wheelchair-accessible. Decl. of David Turissini ¶¶ 5-6 (Dkt. # 31-4); Decl. of Michael Miller ¶¶ 7-8 (Dkt. # 31-6). There are 486 Pierce drivers who know how to operate MCI coaches. Turissini Decl. ¶ 7. On the bus route at issue in this case, the total ridership for the year 2010 was 396, 920 passengers (including weekdays and weekends); for the year 2013, it was 703, 499 (including weekdays and weekends). Miller Decl. ¶ 13.
Plaintiff is a quadriplegic male who was injured in a swimming pool accident in 1998. Dep. of Thomas Reidy ("Reidy Dep.") 24:11-12 (Dkt. # 33-15-Dkt. # 33-20). Due to his disability, he uses a remote-controlled wheelchair with a joystick. Id . 37:7-18. In April 2009, defendant received an email from plaintiff indicating concern about the MCI coach's capability to load a wheelchair. Miller Decl. ¶ 16. This inquiry was handled by Michael Miller, defendant's Customer Facilities and Accessible Services Manager and also defendant's Americans with Disabilities Act ("ADA") Compliance Officer. Id . ¶¶ 2, 16. The record suggests that Miller was plaintiff's point of contact with defendant. In October 2010, plaintiff sent defendant an email (answered by Miller) complaining about wheelchair access on the MCI coach. Miller Decl. Exh. F (Dkt. # 33-4). Defendant indicated that he had experienced problems with MCI coaches "about 10 different times." Id . Miller forwarded plaintiff's email to Pierce. Miller Decl. ¶ 21; Miller Decl. Exh. F. In late-October, plaintiff, at Pierce's invitation, visited Pierce's facilities to demonstrate the problem that he was having with boarding the MCI coach and his proposed solution. Decl. of Thomas Reidy ¶ 6 (Dkt. # 35).
Plaintiff cannot board the MCI coach in the normal fashion. The MCI coach boards wheelchairs in the middle of the bus using a lift. Miller Decl. ¶¶ 7-8. To make room to secure wheelchairs once they are boarded, certain chairs near the wheelchair entrance must be moved forward and placed in a "locked" position. Id . To allow plaintiff's wheelchair to board the bus, the seats must be pushed past the locked position, or else the joystick on the chair will not allow plaintiff to pass. Reidy Decl. ¶¶ 5-6. While some coach drivers have moved the seats in the manner necessary to allow plaintiff to board, others have not. Id.
During his October 2010 meeting with Pierce, plaintiff demonstrated his wheelchairboarding method of moving seats past the locked position. Pierce personnel initially reacted positively, and reported to Miller that they would adopt the loading method and train their personnel, accordingly. Miller Decl. Exh. H (Dkt. # 33-6).
Defendant received subsequent complaints from plaintiff (handled by Miller) indicating that MCI bus drivers were not using plaintiff's boarding method. Miller Decl. Exh. J, K, L (Dkt. ## XX-XX-XX-XX). On May 2, 2011, Miller was sent a memo from a Pierce employee indicating that Pierce safety personnel had expressed concerns the prior November that plaintiff's boarding method would put bus operators in an ergonomically incorrect position and thereby cause them injuries. Miller Decl. Exh. L. Miller also received an email that day from another Pierce employee indicating that seats being in an unlocked position was a "known cause of injury for Transit Operators." Miller Decl. Exh. K. Miller claims that Pierce's Safety and Training Board concluded that plaintiff's loading method would leave seats in an "unlocked and unsafe position" that violated the manufacturers' safety specifications. Miller Decl. ¶ 29.
Plaintiff has not read or reviewed any manuals or materials produced by the MCI coach's manufacturer on the lift and securement systems installed on MCI coaches, nor has he been trained in using the coach's wheelchair-securement equipment. Reidy Dep. 38:14-25; 44:6-17; 53:19-25; 54:1-4. To date, only one other person has complained about wheelchair accessibility on MCI coaches. Miller Decl. ¶ 18.
In early 2012, plaintiff filed a complaint with the Federal Transit Administration ("FTA") Office of Civil Rights. Niemer Decl. ¶ 7. Investigating plaintiff's allegations of disability discrimination, the FTA concluded that defendant had not violated the ADA, the Rehabilitation Act or the Department of Transportation's ("DOT") implementing regulations. Niemer Decl. Exh. B. The FTA further explained that MCI coaches met regulatory requirements regarding the necessary dimensions of the wheelchair securement area and the provision of adequate clearance to reach the securement area, and held that bus operators were not compelled to push seats past the locked position to allow plaintiff to board. Id.
Plaintiff brings this action alleging intentional discrimination in violation of the ADA, 42 U.S.C. § 12132, et seq. and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Dkt. # 14. Plaintiff claims that he was denied the benefits of a public entity's program by defendant's failure to train MCI coach operators in how to board his wheelchair. Dkt. # 14 at 5-6; Dkt. # 34 at 2. The Complaint alludes to certain incidents and makes allegations suggesting a broader theory of discrimination (most of which are unsupported by evidence), as does plaintiff's deposition testimony, Dkt. # 14 at 3; Reidy Dep. 68:2-8; however, plaintiff's opposition brief and declaration make clear that this is plaintiff's sole theory, Dkt. # 34 at 2-3; Reidy Decl. ¶ 10.
II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate if, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, the movant shows that "there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). The moving party "bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It need not "produce evidence showing the absence of a genuine issue of material fact" but instead may discharge its burden under Rule 56 by "pointing out... that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party has satisfied its burden, it is entitled to summary judgment if the nonmoving party fails to designate "specific facts showing that there is a genuine issue for trial." Id. at 324. "The mere existence of a scintilla of evidence in support of the non-moving party's position" is not sufficient; the opposing party must present probative evidence in support of its claim or defense. Arpin v. Santa Clara Valley Transp. ...