Challenging the “because of” Theory in ADA Cases

Challenging the “<em>because of</em>” Theory in ADA Cases

To establish a prima facie case of disability discrimination under the Americans with Disabilities Act (“ADA”), a plaintiff must prove not only that the defendant excluded him from participating in, or denied him the benefits of, its services, but also that such exclusion, denial of benefits, or discrimination was because of his disability. (See Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F. 3d 976, 978 (9th Cir. 1997); Tunstall v. Knowles, 2015 WL 1013445 (E.D.Cal. 2015) [citing Weinreich for the proposition that “plaintiff proceeding under Title II of the ADA must prove that the exclusion from participation in the program was solely by reason of his disability.”]; Cohen v. City of Culver City, 754 F.3d 690, 695 (9th Cir. 2014) [To prevail under Title II, a plaintiff must show that the exclusion, denial, or discrimination was by reason of his disability.].)

Courts routinely grant summary judgment as to ADA claims when a plaintiff cannot satisfy this burden. (See e.g. Sanders v. Ennis-Bullock, 316 Fed.Appx. 610 (9th Cir. 2009) [summary judgment on ADA claim that prison officials refused to provide plaintiff with face-to-face notification of prison activities; plaintiff failed to present a triable issue that the officials were motivated solely by reason of his disability.]; Edington v. Yavapai County, 357 Fed.Appx. 888 (9th Cir. 2009) [summary judgment on ADA and Rehabilitation Act claims because plaintiff did not raise a triable issue as to whether defendants discriminated against him due to a perception that he was disabled]; McGowan v. Washington Dept. of Labor and Industries, 362 Fed.Appx. 883 (9th Cir. 2010) [summary judgment on ADA claim because plaintiff failed to raise a triable issue as to whether he was denied workers’ compensation benefits because of a disability.].)

In addition, to recover monetary damages under Title III of the ADA, a plaintiff must prove the defendant intended to discriminate against him. (See, e.g., Ferguson v. City of Phoenix (9th Cir. 1998) 157 F.3d 668, 674.) The Ninth Circuit uses a “deliberate indifference” standard, which “requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.” (Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. Wash. 2001) (citing City of Canton v. Harris (1989) 489 U.S. 378, 389.)

It is important to setup your defense by asking key questions of the plaintiff in deposition to prepare for a potential motion for summary judgment. The mere fact a plaintiff is disabled and was excluded from something does not automatically mean the plaintiff was denied service because of plaintiff’s disability. Force plaintiff to provide actual evidence to support such an allegation.  Furthermore, a plaintiff may not, to avoid summary adjudication, simply speculate as to a defendant’s motivation for acting. A plaintiff’s subjective belief he was refused service based on his disability cannot defeat summary judgment.

Lastly, even if a plaintiff can establish a defendant discriminated against him because of his disability, injunctive relief is the only remedy available in a private action for violation of Title III. (42 U.S.C.S. § 12188, subd. (a)(1); Munson v. Del Taco, Inc., (2009) 46 Cal.4th 661, 679.)  Monetary damages are not recoverable under Title III of the ADA. (See 42 U.S.C. § 12188(a)(1) (providing remedies under Title III are the same as those outlined in 42 U.S.C. § 2000a-3(a),which do not permit recovery of monetary damages. See also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,401-02,19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968).)

Nonetheless, attorneys’ fees are recoverable if plaintiff prevails.  Attorneys’ fees are sometimes the driving force behind ADA cases.  Another issue for another day!

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