Jones v. City of Monroe

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Jones v. City of Monroe, Michigan No. 01-2335
ELECTRONIC CITATION: 2003 FED App. 0299P (6th Cir.)
File Name: 03a0299p.06 ON BRIEF: J. Mark Finnegan, HEBERLE & FINNEGAN,
Ann Arbor, Michigan, David F. Grenn, Monroe, Michigan,
for Appellant. Robert D. Goldstein, GARAN, LUCOW,
UNITED STATES COURT OF APPEALS MILLER, SEWARD, COOPER & BECKER, Grand Blanc,
Michigan, Thomas R. Paxton, GARAN, LUCOW, MILLER,
FOR THE SIXTH CIRCUIT SEWARD, COOPER & BECKER, Detroit, Michigan, for
_________________ Appellee.

HELEN JONES, X GIBBONS, J., delivered the opinion of the court, in which
Plaintiff-Appellant, - BATCHELDER, J., joined. COLE, J. (pp. 15-32), delivered
- a separate dissenting opinion.
- No. 01-2335
v. - _________________
>
, OPINION
CITY OF MONROE, MICHIGAN , -
Defendant-Appellee. - _________________
- JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-
- appellant Helen Jones, who has multiple sclerosis, brought
N suit alleging that the municipal parking program of the City
Appeal from the United States District Court of Monroe, Michigan (“Monroe”) violates Title II of the
for the Eastern District of Michigan at Detroit. Americans With Disabilities Act (“ADA”) and Section 504 of
No. 01-71472—John Corbett O’Meara, District Judge. the Rehabilitation Act of 1973. Jones filed a motion for a
preliminary injunction requesting that the district court order
Argued: October 17, 2002 Monroe to modify its parking program to grant Jones free all-
day parking adjacent to her place of employment.
Decided and Filed: August 21, 2003 Specifically, Jones asked that the district court order Monroe
to reserve a free parking space for Jones adjacent to her office
Before: BATCHELDER, COLE, and GIBBONS, Circuit or to cease ticketing Jones when she parks in a designated
Judges. one-hour parking space for the entire work day. The district
court denied Jones’s motion for a preliminary injunction on
_________________ the ground that she failed to establish a likelihood of success
on the merits. Jones appeals this order. For the reasons set
COUNSEL forth below, we affirm the district court’s denial of a
preliminary injunction.
ARGUED: J. Mark Finnegan, HEBERLE & FINNEGAN,
Ann Arbor, Michigan, for Appellant. Robert D. Goldstein,
GARAN, LUCOW, MILLER, SEWARD, COOPER &
BECKER, Grand Blanc, Michigan, for Appellee.

1
No. 01-2335 Jones v. City of Monroe, Michigan 3 4 Jones v. City of Monroe, Michigan No. 01-2335

I. basis of disability in violation of federal law.1 In conjunction
with filing her complaint, Jones sought a preliminary
Jones suffers from multiple sclerosis, an incurable, usually injunction. On June 15, 2001, the district court held a hearing
progressive disease. Her disability affects her sight, balance on Jones’s motion for a preliminary injunction. On
and ability to walk. Jones customarily uses a wheelchair, August 28, 2001, the district court denied Jones’s motion for
although on occasion she walks for short distances with the a preliminary injunction on the basis that Jones had failed to
use of a cane. Jones is employed by the Salvation Army establish a likelihood of success on the merits of her claim.
Harbor Light (“Salvation Army”) as a substance abuse
counselor for deaf and hard-of-hearing clients. The Salvation This timely appeal followed.
Army is located in downtown Monroe.
II.
Because the building which houses the Salvation Army’s
offices lacks private parking spaces, Jones must either park in On appeal, Jones argues that the district court erred in
a space provided by Monroe or in a private commercial refusing to enjoin Monroe’s allegedly discriminatory parking
parking area. Monroe has several parking areas that provide policies and require that Monroe cease ticketing Jones when
free parking in the downtown vicinity. One such parking area she parks in a designated one-hour parking space or provide
is immediately adjacent to the downtown Monroe business Jones with a free all-day parking space adjacent to her office
district as well as Jones’s office. These free parking spaces, pending a final resolution on the merits. This court reviews
however, are each limited to one-hour parking only. Several a lower court’s decision on whether to grant a preliminary
parking spaces designated for disabled users are located in injunction for an abuse of discretion. Taubman Co. v.
this one-hour parking area. These spaces are similarly limited Webfeats, 319 F.3d 770, 774 (6th Cir. 2003); In re DeLorean
to one-hour parking. Monroe also provides free all-day Motor Co. v. DeLorean, 755 F.2d 1223, 1228 (6th Cir. 1985).
parking in several lots located within two blocks of Jones’s The district court’s determination will be disturbed only if the
office. According to Jones, she is not able to walk from any district court relied upon clearly erroneous findings of fact,
of these free all-day parking lots to her office due to her improperly applied the governing law, or used an erroneous
disability. legal standard. Nightclubs, Inc. v. City of Paducah, 202 F.3d
884, 888 (6th Cir. 2000) (quoting Connection Distrib. Co. v.
On numerous occasions Jones has parked her car in a one- Reno, 154 F.3d 281, 288 (6th Cir. 1998)). Under this
hour parking space adjacent to her office for the duration of standard, we must review the district court’s legal conclusions
a work day. Monroe has issued Jones dozens of parking de novo and its factual findings for clear error. Taubman, 319
tickets based on her violations of the one-hour time limitation. F.3d at 774.
Jones displays a handicapped parking permit on her vehicle,
but Monroe contends that the permit does not allow her to
violate the one-hour time limitation. 1
The original complaint contained three counts. Count one sought
individual relief for Jones relating to Monro e’s failure to mod ify its
On April 16, 2001, Jones brought suit alleging that downtown parking program to allow Jone s to participate. Counts two and
Monroe’s refusal to modify its municipal parking program three related to class-wide claims under federal law a nd M ichigan law
constitutes unlawful and intentional discrimination on the respe ctively. Counts two and three of the original complaint were
abandoned in an amended complaint filed by Jones on November 27,
2001. Count one remains.
No. 01-2335 Jones v. City of Monroe, Michigan 5 6 Jones v. City of Monroe, Michigan No. 01-2335

When considering a motion for preliminary injunction, the Monroe’s alleged discrimination in refusing to provide Jones
district court should consider four factors: (1) whether the with “meaningful access” to the parking program and refusing
moving party has a strong likelihood of success on the merits; to grant her a reasonable accommodation.
(2) whether the moving party will suffer irreparable injury
without the injunction; (3) whether the issuance of the Jones alleges that Monroe’s parking program violates Title
injunction would cause substantial harm to others; and II of the ADA,3 which provides that “no qualified individual
(4) whether the public interest would be served by issuance of with a disability shall by reason of such disability be excluded
the injunction. Nightclubs, Inc., 202 F.3d at 888. The four from participation in or denied the benefits of the services,
considerations applicable to preliminary injunction decisions programs, or activities of a public entity, or be subjected to
are factors to be balanced, not prerequisites that must be met. discrimination by any such entity.” 42 U.S.C. § 12132.
DeLorean, 755 F.2d at 1228. Moreover, a district court is not Section 12131 defines “qualified individual with a disability”
required to make specific findings concerning each of the four as “an individual with a disability who, with or without
factors used in determining a motion for preliminary reasonable modifications to rules, policies, or practices . . .
injunction if fewer factors are dispositive of the issue. Id.; meets the essential eligibility requirements for receipt of
Mascio v. Public Employees Retirement Sys. of Ohio, 160 services or the participation in programs or activities provided
F.3d 310, 312 (6th Cir. 1998) (affirming the district court’s by a public entity.” 42 U.S.C. § 12131. The ADA’s
grant of a preliminary injunction based on the district court’s prohibition of discrimination in services, programs, or
conclusion that the plaintiff had demonstrated a substantial activities “encompasses virtually everything a public entity
likelihood of success on the merits). does.” Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.
1998). To make out a prima facie case under Title II of the
Jones argues that the district court erred in finding that ADA, a plaintiff must establish that (1) she has a disability;
Monroe’s parking program complies with federal law and (2) she is otherwise qualified; and (3) she is being excluded
thereby concluding that Jones had failed to establish a from participation in, being denied the benefits of, or being
likelihood of success on the merits of her claim.2 Jones subjected to discrimination under the program solely because
further claims that the district court erred in failing to address of her disability. See Kaltenberger v. Ohio College of
Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998); see also
Burns v. City of Columbus, 91 F.3d 836, 841 (6th Cir. 1996)
2
Jones also argues that the district court’s order fails to comply with
(setting forth the prima facie case under the Rehabilitation
the requirements of Rule 52 of the Federal Rules of Civil Procedure. Act); Doe v. University of Maryland Med. Sys. Corp., 50 F.3d
Despite the somewhat cursory nature o f the district court’s legal analysis, 1261, 1265 (4th Cir. 1995) (finding that in order to establish
we find that the district court’s order complies with the requirements of disability discrimination under Title II of the ADA, a plaintiff
Rule 52. Moreover, the district court’s opinion is adequate to allow this must prove: (1) that he has a disability; (2) that he is
court to review the denial of the preliminary injunction. Even if this court
concluded that the district court’s findings of fact and conclusions of law
are inadequate under Rule 52, it would be unnecessary to remand the case
because the record is exceptionally clear. See Urbain v. Knapp Bro. Mfg. 3
Co., 217 F.2d 810, 816 (6th Cir. 1954 ); see also Da vis v. New York City For purposes of this case, there are no relevant differences between
Hous. Auth., 166 F.3d 43 2, 436 (2d Cir. 199 9); White v. Carlucci, 862 Title II of the ADA and S ection 504 of the Rehabilitation Act. Therefore,
F.2d 1209, 12 11 fn. 1 (5th Cir.1989 )). In addition, b oth parties agree that a separate ana lysis of Jones’s Se ction 5 04 claim is unn ecessary. See
the record is complete and that this court can address the issue of the McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459,
injunction witho ut remand for further proceed ings. 460 (6th Cir.1997) (en banc).
No. 01-2335 Jones v. City of Monroe, Michigan 7 8 Jones v. City of Monroe, Michigan No. 01-2335

otherwise qualified for the benefit in question; and (3) that he parking in the current one-hour spaces would thus have a
was excluded from the benefit due to discrimination solely on negative impact on downtown businesses.
the basis of the disability).
In specific locations a short distance away from the one-
The district court did not address whether Jones is disabled hour parking, Monroe has also provided the benefit of free
or whether she was otherwise qualified for the benefit in long-term, all-day parking to all individuals who come
question. Instead, the district court concluded that Monroe is downtown, for whatever reason. While the all-day parking is
not excluding Jones from participating in or denying her the not provided for the specific benefit of individuals who work
benefits of the parking system. In evaluating the correctness downtown, they are free to use it.
of this conclusion, we must first examine the nature of the
benefit offered by Monroe.4 Initially, we note that the benefit Access to the one-hour and all-day parking places is
is not appropriately defined as free downtown parking facially neutral. The one-hour limit applies to individuals
generally, but rather as the provision of all-day and one-hour with disabilities and those without disabilities. Similarly,
parking in specific locations. See Alexander v. Choate, 469 both disabled and able-bodied persons may park in all-day
U.S. 287, 303 (1985) (holding that “adequate health care” was parking. Both one-hour and all-day parking areas have spaces
too “amorphous” a concept to define the government service for disabled and nondisabled individuals.5 The parking
or benefit to which disabled persons may assert a statutory limitations do not affect disabled and nondisabled individuals
right of access and accommodation).
In the one-hour parking area specifically addressed by
Jones, Monroe is offering the benefit of free short-term
parking to individuals who wish to transact retail or other
business in the downtown business district. The short-term, 5
Jones argues on appeal that she lacks m eaning ful access to the free
one-hour nature of the benefit is designed to help downtown all-day parking spaces because the spaces fo r the disa bled are no t in
businesses by making parking spaces in close proximity to compliance with the AD A minimum construction and de sign standards.
them more readily available. Monroe quite logically has These standards address issues such as proper signage, width of parking
determined that downtown shopping and other downtown spaces, and slope of parking spaces. Jones’s claim of denial of a benefit,
business activities are discouraged when patrons cannot easily however, does not arise from any design and construction flaws in the all-
day parking, because Jones admits that she would not use any of the free
obtain parking places close to their destination. All-day all-day parking spaces regardless of the alleged design flaws due to the
distance of the parking spaces from her place of employm ent. The district
court’s opinion is limited to Jones’s request, for herself only, that the
4
court “force the City of Monroe to return to its former policy of not
W e decline to rea ch any c onclusions regard ing whether Jones has ticketing the Plaintiff when she leav es her car in a one hour parking space
a disability and whether she is otherwise qualified. Instead, we assume for the entire work day . . . . Or have the City of Monroe reserve a free
for the sake of this opinion that she meets the first two elements of her accessible parking space on the street next to her office.” Jones did not
prima facie case and address only the third element: whether she was seek injunctive relief for other disabled ind ividuals based on lack of
excluded from p articipa tion in or denied a b enefit on the b asis of her meaningful access. In addition, Jones did not request injunctive relief in
disab ility. See Henrietta D. v. Bloom berg, Nos. 02-7022/7074, 2003 WL the form of forcing Monroe to bring the free all-day parking spaces into
21308851, at 13-14 (2 d Cir. June 9, 20 03) (noting that “[a]n ADA compliance with the applicable construction and design standards. For
plaintiff must demonstrate that a den ial of benefits occurs ‘by reason of purposes of this appeal, therefore, any noncompliance with standards in
. . . disability.’” (quotation omitted)). constructing these spaces is im material.
No. 01-2335 Jones v. City of Monroe, Michigan 9 10 Jones v. City of Monroe, Michigan No. 01-2335

differently in any respect.6 Thus, the district court did not err Contrary to the dissent’s argument that the Supreme
in determining that Jones was not excluded from parking Court’s opinion in Choate supports a finding of
benefits offered by Monroe. discrimination, a proper application of Choate requires a
finding that Jones has not been denied meaningful access to
The dissent repeatedly states that Jones is excluded from the parking benefit provided by Monroe. In Choate,
the benefit of free downtown parking. However, the dissent Medicaid recipients sued the State of Tennessee for
fails to explain how Jones is denied this benefit. Jones has declaratory and injunctive relief when the state decided to
equal access to the free downtown parking, and she can park reduce, from twenty to fourteen, the number of inpatient
there if she chooses. While the dissent claims to define the hospital days that state medicaid would pay hospitals on
benefit at issue as “free downtown parking,” the dissent later behalf of a medicaid recipient in each year. 469 U.S. at 289.
identifies the benefit as the ability “to park for free all-day in The medicaid recipients argued that the fourteen-day rule
spaces that allow them meaningful access to their denied them meaningful access to Medicaid services in
destination.” The dissent thus conflates meaningful access to Tennessee in violation of the Rehabilitation Act. Id. at 301-
downtown parking with meaningful access to an individual’s 02. The Court noted that the fourteen-day limitation would
destination of choice. When applied to the facts of the instant not deny the medicaid recipients meaningful access to
case, it is apparent that the dissent is defining the benefit at Medicaid or exclude them from those services. Id. at 303.
issue as the latter and not the former. Jones has equal access The Court held that the benefit provided was the “individual
to free downtown parking. She does not have free downtown services offered” and not the amorphous objective of
parking accessible to any destination she selects or, ‘adequate health care.’” Id. The Court further stated that the
unfortunately, her workplace. The benefit that Monroe is State is not required to alter the definition of the benefit
providing to all of its citizens, including Jones, is free offered “simply to meet the reality that the handicapped have
downtown parking at specific locations; it is not free greater medical needs.” Id. According to the Court, “[t]he
downtown parking that is accessible to wherever a citizen, Act does not . . . guarantee the handicapped equal results from
disabled or non-disabled, chooses to go or work.7 the provision of state Medicaid, even assuming some measure
of equality of health could be constructed.” Id. at 305.
6
Recently, in Henrietta D., the Sec ond Circuit noted that under the Jones has access to the service offered by Monroe - free
ADA “there m ust be some thing different about the way the p laintiff is downtown parking in specific locations. She does not have a
treated ‘by reason of . . . disability.’” 2003 WL 21308851, at 12 (quoting right to free downtown parking that allows her access to her
42 U.S.C. § 12132). In the instant case, Jones has not been treated destination of choice. The reality of Monroe’s free downtown
differently from no n-disab led individuals or de nied any benefit. parking system is that not every person is going to have
7
The dissent sets forth a lengthy hypothetical purp orting to illustrate
the distinction between what the dissent perceives to be the essence of
Jones’s claim (that she is being denied the benefit of free all-day parking),
and what the majority perceives to be the essence of Jones’s claim (that
the ADA requires Monroe to provide Jones with an all-day parking space
in the location she requests). The hypothetical is distinguishable because
it involves a case where the disabled individual has no access to the
service or benefit by reason of his or her disability, and the o nly available is not denied access to the benefit, and there are alternative
accommodation is the waiver of the city’s rule. In the present case, Jones accom mod ations available to Jo nes.
No. 01-2335 Jones v. City of Monroe, Michigan 11 12 Jones v. City of Monroe, Michigan No. 01-2335

access to his or her workplace or other destination of choice.8 making the modifications would fundamentally alter the
Monroe provides the benefit of free downtown parking at nature of the service, program or activity.
specific locations, and these locations will necessarily be
more accessible to some workplaces than others. As the 28 C.F.R. § 35.130(b)(7).
Choate Court noted, however, equal results from the
provision of the benefit, even assuming equal results could be Jones describes her requested accommodation as “allowing
achieved, are not guaranteed. Id. at 305. The dissent claims her to park in one of the 11 parking spaces” adjacent to her
that “Jones has never taken the position that she should be office. By contrast, Monroe describes Jones’s requested
able to park wherever she wants.” Yet, that is precisely the accommodation as “immunity from prosecution for her
logical result of defining the benefit provided as meaningful violations of Monroe’s neutral parking and enforcement
access to one’s destination of choice. ordinances.” Any accommodation on the part of the entity
only needs to be “reasonable.” Johnson v. City of Saline, 151
The essence of Jones’s position is that the ADA requires F.3d 564, 571 (6th Cir. 1998). An accommodation is not
Monroe to provide her an all-day parking place in the exact reasonable if it imposes a fundamental alteration in the nature
location she requires. Under the ADA, Jones’s individualized of the program. See 28 C.F.R. § 35.130. The public entity
need for a particular spot is most appropriately considered in bears the burden of proving that the accommodation would
determining whether permitting her to park all day in a one- fundamentally alter the program. Popovich v. Court of
hour parking place adjacent to her office is a reasonable Common Pleas Domestic Relations Div., 227 F.3d 627, 639
accommodation which Monroe must make. The district court (6th Cir. 2000), rev’d on other grounds, 276 F.3d 808 (6th
did not specifically rule on this issue in determining that Cir. 2002) (en banc). In cases involving waiver of applicable
Jones had not established a likelihood of success on the rules and regulations, the overall focus should be on “whether
merits. As noted previously, a “qualified person with a waiver of the rule in the particular case would be so at odds
disability” is “an individual with a disability who, with or with the purposes behind the rule that it would be a
without reasonable modifications to rules, policies or fundamental and unreasonable change.” Dadian v. Village of
practices ... meets the essential requirements for receipt of Wilmette, 269 F.3d 831, 838-39 (7th Cir. 2001) (quoting
services or the participation in programs or activities provided Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181
by a particular entity.” 42 U.S.C. § 12131. The applicable F.3d 840, 850 (7th Cir. 1999)).
regulations interpreting Title II state as follows:
The purpose of the one-hour limitation is to encourage
A public entity shall make reasonable modifications in patrons to shop at downtown businesses. Waiver of the
policies, practices, or procedures when the modification ordinance limiting parking to one hour in the business district
is necessary to avoid discrimination on the basis of would be “at odds” with the fundamental purpose of the rule.
disability, unless the public entity can demonstrate that By its very nature, the benefit of one-hour free public parking
cannot be altered to permit disabled individuals to park all
day without jeopardizing the availability of spaces to other
8 disabled and nondisabled individuals. Such a waiver would
The dissent would create a rule under which, if Monroe provides
free parking anywhere in the city, it could arguably be required to provide also require Monroe to cease enforcement of an otherwise
free parking to disabled individuals anyw here in the city they choose to
go. Und er the d issent’s logic, access to free parking could arguably be
extended to individuals other than those traveling to down town locations.
No. 01-2335 Jones v. City of Monroe, Michigan 13 14 Jones v. City of Monroe, Michigan No. 01-2335

valid ordinance, which by its very nature requires a III.
fundamental alteration of the rule itself.9
For all the reasons set forth above, we affirm the district
In addition, the record contains evidence of alternative court’s denial of preliminary injunctive relief.
accommodations available to Jones such as a service which
will pick her up at any Monroe parking lot, based on a
schedule constructed personally for Jones, and take her to the
door of her office building. Accordingly, Jones’s requested
modification, whether characterized as assignment of a
particular parking location or immunity from prosecution, is
not a reasonable accommodation required under the ADA.
The district court’s failure to discuss this issue therefore does
not render its denial of the preliminary injunction an abuse of
discretion.
Because the district court did not rely upon clearly
erroneous findings of fact, improperly apply the governing
law, or use an erroneous legal standard, it did not err in
denying Jones’s request for a preliminary injunction.

9
The dissent relies heavily on the Supreme Court’s opinion in PGA
Tour, Inc. v. Ma rtin, 532 U.S. 661 (2001 ), in concluding that the
modification requested by Jones is not a fundamental alteration. In
Ma rtin, the Court first determined that the requested modification, waiver
of the walking requirement, might co nstitute a fundamental alteration by
(1) altering an essential aspect of the game so that it would be
unacceptable even if it affected all competitors equally, or (2) altering an
aspect of the game that has only a peripheral impact, but nevertheless
gives a disab led player an adva ntage o ver others thereby fundam entally
altering the character of the co mpe tition. Id. at 682. The Court concluded
that the “use of carts is not itself inconsistent with the fundamental
character of the game of golf,” because “the essence of the game has been
shotm aking.” Id. at 683. Parking, however, is hardly analogous to the
game of go lf. Mo reover, the essential element of a one-hour free public
parking area is the time limitation on an individua l’s ability to use a
designated space to park his or her vehicle. Alteratio n of the tim e limit
on spaces designated for one-hour parking is a fundamental alteration of
the parking scheme.
No. 01-2335 Jones v. City of Monroe, Michigan 15 16 Jones v. City of Monroe, Michigan No. 01-2335

_______________ I. Facts

DISSENT Jones works as a substance abuse counselor for deaf and
_______________ hearing-impaired individuals. Her multiple sclerosis causes
tremors in her arms and legs, and results in severe fatigue.
R. GUY COLE, JR., Circuit Judge, dissenting. The She is not capable of walking long distances and therefore
majority opinion errs in its application of the ADA to the relies on a wheelchair. Jones’s wheelchair, however, is a
facts of this case, applying the statute in a manner that manual model, and the exertion required to move long
essentially eviscerates the ADA’s purpose and renders the distances can also cause her significant fatigue. Jones is able
ADA impotent in its ability to provide recourse for disabled to drive her car, but she is not able to get her wheelchair in
individuals, such as Helen Jones, who face a form of and out of the car by herself. Thus, her practice has been to
discrimination which Congress has explicitly prohibited. park in one of the parking spaces adjacent to her building and
Accordingly, I respectfully dissent. walk across the sidewalk to the building, where she has left
her wheelchair at the door.
The majority correctly sets out the three elements of a
prima facie case of discrimination under Title II of the ADA. Jones’s symptoms become more pronounced as the day
A plaintiff must establish that she: (1) has a disability; (2) is progresses. As her fatigue increases, she can lose the fine
otherwise qualified to benefit from the public program; and motor skills necessary to communicate with her deaf clients.
(3) is unable to do so as a result of her disability. In addition, Jones is unable to walk across an intersection in
Kaltenberger v. Ohio Coll. of Pediatric Med., 162 F.3d 432, the time that it takes for the light to change, and is unable to
435 (6th Cir. 1998). In my view, Jones has established her stand, unassisted, on a sidewalk for more than five minutes.
prima facie case, and Monroe is thus required to Jones’s treating physician has testified that Jones should
accommodate Jones’s disability by making “reasonable avoid any unnecessary stress and exertion.
modifications” so long as these modifications would not
“fundamentally alter the nature of the service, program or Monroe provides free day-long parking in several
activity.” 28 C.F.R. § 35.130(b)(7). municipal lots throughout downtown. Other individuals
employed in Jones’s office building are able to utilize this
Monroe does not dispute that Jones has a disability. service to access their workplace. Within two blocks of
Accordingly, in order to hold that Jones does not have a Jones’s workplace are several municipal lots providing a total
reasonable likelihood of success on the merits, we must find of 373 free spaces where individuals are able to park for the
either: (1) that she was not otherwise qualified to benefit from entire day. Of these 373 spaces, sixteen have been designated
the public service or program and thus does not meet the as handicapped spaces.
second element of the prima facie case; (2) that she is able to
receive the benefit despite her disability and thus does not Monroe has limited parking to one hour at an additional
meet the third element of the prima facie case; or (3) despite 110 free parking spaces in the retail district, where Jones
establishing a prima facie case, the modification Jones seeks works. This time limitation is intended to allow for patron
would fundamentally alter the nature of the service or parking and to discourage employees from using these
program provided by Monroe. particularly convenient spaces. There are eleven such spaces
adjacent to Jones’s building. The closest space is twenty-one
No. 01-2335 Jones v. City of Monroe, Michigan 17 18 Jones v. City of Monroe, Michigan No. 01-2335

feet from the entrance to her building; the farthest is sixty-five III. Whether Jones is a Qualified Individual with a
feet. The closest handicapped space in one of the free day- Disability
long lots provided by Monroe is 592 feet from the building –
a distance far too great for Jones to manage. Monroe argues that Jones is not a qualified individual with
a disability because she is not a person who is contemplated
The majority notes that the record contains evidence of an to be served by Monroe’s one-hour parking ordinance. As
alternative accommodation for Jones, stating that she can be such, she is not protected by the ADA.
picked up at any Monroe lot and taken to the door of her
building. This accommodation is not a viable option for It is incorrect, however, to address the benefit that Jones
Jones. She often works odd hours, including well into the claims she is being denied as though it revolves around the
evening, frequently on short notice, and this transit service one-hour parking ordinance. Jones has never complained that
requires at least twenty-four hours notice to schedule a pick- she is being denied the benefit of this one-hour ordinance.
up for a disabled individual. In addition, the service stops Jones argues that Monroe provides all individuals the benefit
running at 5:30 p.m. The Salvation Army has provided its of free downtown parking, and this is undisputed. The one-
own van on occasion to transport her to and from the lots to hour ordinance is only relevant insofar as it prevents Jones
her work, but reliance on this private accommodation–which from enjoying the benefit of the free all-day downtown
is not provided by Monroe–is misplaced. Moreover, this parking program. Therefore, while the one-hour ordinance
option is no longer available because the Salvation Army van may be relevant to whether Jones’s requested modification is
is not wheelchair accessible, and its driver was seriously a fundamental alteration, it is wholly inapplicable to the
injured trying to help Jones out of the vehicle. question of whether she is a qualified individual with a
disability.
II. Standard of Review
The majority concludes that “[t]he essence of Jones’s
The majority states that we are to review the district court’s position is that the ADA requires Monroe to provide her an
judgment for an abuse of discretion. It is true that this Court all-day parking space in the exact location she requires.”
generally reviews decisions on whether to grant a preliminary However, this is not the essence of her claim. Jones has never
injunction for an abuse of discretion. See McPherson v. Mich. taken the position that she should be able to park wherever
High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997). she wants. The “essence” of her claim is that because Monroe
However, if pure legal conclusions are involved, we review provides free and accessible all-day parking for everyone else,
the judgment of the district court de novo. See id. (stating it cannot effectively deny her the benefit of this parking
that, in an appeal of a ruling on a preliminary injunction, program because of her disability.
factual findings are reviewed for clear error, and legal rulings
are reviewed de novo). Jones does not dispute any factual A hypothetical example may serve to illuminate this issue.
findings made by the district court. Whether the ADA Suppose that a city provides the service of a public library for
requires Monroe to provide Jones with the requested the enjoyment of its citizens. The library has three separate
modification of its parking policy is strictly a legal question. entrances, East, West, and South, all of which are equipped
Therefore, we are not to give deference to the judgment of the with wheelchair ramps. The wheelchair ramp at the South
district court. entrance is slightly wider than the other two. A certain
disabled individual, Ms. Smith, enjoys utilizing the library,
No. 01-2335 Jones v. City of Monroe, Michigan 19 20 Jones v. City of Monroe, Michigan No. 01-2335

just as all other disabled and able-bodied individuals are able ADA when she seeks access to the library itself rather than
to do. Unfortunately for Smith, her particular disability access to Kiddies Land.1
requires her to use a specially designed wheelchair that is
larger than other wheelchairs, and she therefore cannot access The Technical Assistance Manual for Title II of the ADA
the library through the East or West entrance. sheds further light on the issue of whether Jones is “otherwise
qualified.” The manual confronts the question of whether
After some time, the city decides that it has to do more to accommodations such as freight elevators can be used to
encourage children to read, and so it converts the South wing satisfy the program accessibility requirements. See ADA
of the library to “Kiddies Land,” where there are many TECHNICAL ASSISTANCE MANUA L II-5.1000 (1993). The
activities designed to develop children’s interest in reading. manual states that such arrangements are permissible, as a last
The city has determined that this plan is beneficial because it resort, so long as the passageways remain reasonable in
serves not only to encourage children to read, but also to length, fairly well lit, and generally clean. See id. The
increase the revenues generated by the library. Additionally, argument asserted by Monroe, however, inescapably conflicts
the city has decided that in order to reap the full benefits of with the manual. By Monroe’s logic, a disabled individual
Kiddies Land, adult patrons may not use the South wing. As would not be permitted to use a freight elevator because the
a result, Smith requests that she be permitted to use the South freight elevator is not intended to transport members of the
entrance without being subject to the monetary fine the city public. Therefore, the disabled individual would not be
has decided to impose on adults who enter the South wing. “otherwise qualified.” The example in the Technical
The city rejects her request. Nevertheless, Smith continues to Assistance Manual exposes the flaw in this logic. It is
access the library through the South entrance, and is severely therefore clear that Jones has satisfied the second element of
fined each time she does so. her prima facie case by demonstrating that she is otherwise
qualified to benefit from the program.
Smith sues under the ADA, arguing that the city is
providing a service, in the form of a public library, that she is IV. Whether Jones is Able to Benefit from the Parking
denied the benefit of using due to her disability. She requests Program
that the reasonable modification be made to allow her to use
the South entrance. In such a situation, it would make no The majority asserts that Jones has equal access to the free
sense for the court to hold that Smith is not a qualified downtown parking, that she can park there if she chooses, and
individual with a disability because the South wing of the that she therefore is not denied the benefit provided by
library is intended for the benefit of children. Smith is not
complaining that she is not allowed to use Kiddies Land. She 1
is complaining that, due to her rare disability, she is denied The majo rity’s attemp t to distinguish this hypothetical example from
access to the entire library. The use of the South entrance is Jones’s case is inapposite. While the majority may assume that Jones has
satisfied the second element of her prima facie case, Monroe argues that
merely the reasonable modification she proposes in order to she has not. I put forth this hypothetical illustration to demonstrate the
have the same library access as other citizens. The city may futility of Monroe’s argument that Jones is not otherwise qualified to
argue that permitting Smith access through the South wing benefit from the parking progra m. By stating that S mith’s case is
would fundamentally alter Kiddies Land. It cannot be said, different from Jon es’s because Jones is not denied access to the b enefit,
however, that Smith is not a qualified individual under the the majority is attempting to demonstrate why Jones does not meet the
third element of her prima facie case - a question I address in Part IV of
this opinion, but do not intend to address in this illustration.
No. 01-2335 Jones v. City of Monroe, Michigan 21 22 Jones v. City of Monroe, Michigan No. 01-2335

Monroe. While it is true that she may park in the free all-day The majority cites Choate in support of the proposition that
lot if she chooses to do so, this does not mean that she has the “the benefit is not appropriately defined as free downtown
“meaningful access” that the ADA requires. See Alexander parking generally, but rather as the provision of all-day and
v. Choate, 469 U.S. 287, 301 (1985) (noting that an otherwise one-hour parking in specific locations.” This does not clarify
qualified handicapped individual must be provided with precisely how the majority is defining the benefit, which is
meaningful access to the benefit offered). For Jones to be critical to this case. The provisions for all-day parking and
able to benefit from Monroe’s parking program, she needs to one-hour parking are two separate and clearly distinct
be able to have access to the locations which non-disabled provisions. Jones only claims that she is denied the benefit of
individuals can access from these parking lots. The majority the former.
accuses me of conflating meaningful access to downtown
parking with meaningful access to an individual’s destination In Choate, the Court explicitly addressed the issue of
of choice. However, I do not believe that Jones has the right defining the benefit, and made clear that the approach the
to meaningful access to her destination of choice. I do not majority takes here is impermissible. It stated, “The benefit
contend that, if Monroe provides free parking anywhere in the itself, of course, cannot be defined in a way that effectively
city, it must provide free parking to disabled individuals denies otherwise qualified handicapped individuals the
anywhere in the city they choose to go. Of course, to the meaningful access to which they are entitled; to assure
extent that free, accessible parking is not provided for non- meaningful access, reasonable accommodations in the . . .
disabled individuals, it need not be provided for anyone. I do, benefit may have to be made.” 469 U.S. at 301. The Court
however, believe that she has the right to the benefit of also noted that “[a]ntidiscrimination legislation can obviously
meaningful access to those locations that–but for her be emptied of meaning if every discriminatory policy is
disability–would be accessible to her through Monroe’s ‘collapsed’ into one’s definition of what is the relevant
parking program. I am not conflating this benefit with free benefit.” Id. at 301 n.21.
downtown parking. Rather, the majority’s attempt to separate
the two is artificial. Parking is only meaningful insofar as it In determining that the benefit provided in Choate was
provides individuals with access to their destinations. “individual services offered,” rather than the more amorphous
benefit of “adequate health care,” the Court noted that “[t]he
Returning to the hypothetical illustration, if Ms. Smith were 14-day limitation will not deny [the disabled individuals]
to gain access to the library, only to find that all of the books meaningful access to Tennessee Medicaid services or exclude
were placed on shelves too high for her to reach from her them from those services.” Id. at 302-03. In contrast, Jones
wheelchair, the city would be required to accommodate her is clearly denied meaningful access to parking services, as the
and make sure that she had access to the books she could not only spaces she is permitted to use are inaccessible to her.
reach. Entry into the library is only meaningful because it Unlike the plaintiffs in Choate, Jones is therefore altogether
provides individuals with access to the books the library excluded from meaningful access to the service.
contains. Under the majority’s logic, if Smith were to argue
that the ADA requires that she be given access to the high- The Choate Court also explained, “The reduction in
shelved books, she would be conflating access to the library inpatient coverage will leave both handicapped and
with access to the books of her choice. nonhandicapped Medicaid users with identical and effective
services fully available for their use, with both classes of
users subject to the same durational limitation.” Id. While
No. 01-2335 Jones v. City of Monroe, Michigan 23 24 Jones v. City of Monroe, Michigan No. 01-2335

the durational limitations in the one-hour spaces are certainly parking program only because it allows them access to their
identical for both classes of individuals, in the present case, “destination of choice.” It may be true that Monroe’s
unlike Choate, the durational limitation in and of itself is not downtown parking system requires that not every person is
the problem. Rather, the problem here is that the durational going to have access to his or her own workplace. However,
limitation renders Jones unable to take advantage of a benefit it is equally true that Monroe’s downtown parking system
clearly distinct from the durational limitation, that is, free and provides parking that would be accessible to Jones but for her
accessible, all-day downtown parking. disability. The analysis is straightforward. Jones is denied
the relevant benefit because, if Jones did not have multiple
Lastly, in Choate, “[t]he 14-day limitation . . . [did] not sclerosis, she would be provided with free all-day parking that
exclude the handicapped from or deny them the benefits of gives her access to the building where she works. Because
the 14 days of care the State [chose] to provide.” Id. In she has multiple sclerosis, she is not provided with that
contrast, Jones is excluded from the benefits of free and benefit. There is no question, therefore, that she satisfies the
accessible downtown parking because her disability prevents third element of her prima facie case, that is, she is unable to
her from utilizing the all-day spaces Monroe chose to provide benefit from the public program because of her disability.
altogether.
V. Whether the Requested Modification is
It is true that the Supreme Court noted that “Medicaid Unreasonable or Fundamentally Alters the Nature of
programs do not guarantee that each recipient will receive that the Service Provided
level of health care precisely tailored to his or her particular
needs,” id. at 303, but an attempt to claim that Jones is The majority also finds that to permit Jones to park in one
likewise not guaranteed a parking space precisely tailored to of the spaces adjacent to her building would fundamentally
her particular needs is wholly unpersuasive. A fair reading of alter the nature of the service Monroe provides. The majority,
Choate indicates that the Supreme Court would have found a however, points to nothing about the requested modification
violation of the Rehabilitation Act if Tennessee’s actions had that would fundamentally alter the service in any way, other
the effect of completely denying any individual access to than merely pointing out that the requested modification is a
inpatient care. Here, Jones is denied access to all possible change. But this is precisely what the governing statutes
parking spaces, whether by reason of her disability or require. If courts were permitted to hold, as the majority does
Monroe’s one-hour restriction. Thus, the difference between here, that any “modification” fundamentally alters the service
the services provided for others and the services provided for because it requires that the service be “modified,” the
Jones is a difference in kind, and not merely degree. She is Rehabilitation Act and the ADA would be rendered
completely denied an effective parking space, and the ineffectual. It is worth restating that Jones does not complain
language in Choate suggests that the Court would not have that she is being denied the benefit of the one-hour parking
countenanced this type of discrimination. Thus, a proper ordinance. Our analysis requires us to consider whether the
application of Choate compels finding for Jones. modification Jones requests fundamentally alters the program
or service of which she is denied the benefit. Accordingly, it
The majority’s position is that Jones has access to is not proper to analyze the fundamental-alteration question
downtown parking just as nondisabled individuals do. This based on whether the one-hour ordinance is fundamentally
argument ignores the fact that other individuals who work in altered.
downtown Monroe are able to benefit from Monroe’s free
No. 01-2335 Jones v. City of Monroe, Michigan 25 26 Jones v. City of Monroe, Michigan No. 01-2335

The Supreme Court has explicitly rejected the idea that any framing in Martin compels us to take the same approach here.
mere alteration of a rule is fundamental. See PGA Tour, Inc. Here, therefore, we must consider whether waiving the one-
v. Martin, 532 U.S. 661, 689 n.51 (2001) (disapproving of a hour ordinance for Jones would fundamentally alter the
reading of the ADA that would render the word overall parking scheme downtown, not its effect on the one-
“fundamentally” largely superfluous). Requiring public hour ordinance. Had the Supreme Court utilized the rationale
entities to make changes to rules, policies, practices, or the majority uses here, it would have simply stated that
services is exactly what the ADA does. Oconomowoc waiver of the walking rule “by its very nature” fundamentally
Residential Programs, Inc. v. City of Milwaukee, 300 F.3d alters the walking rule, and is therefore not required by the
775, 782-83 (7th Cir. 2002). The Court recognized the ADA.2
administrative burdens that Congress knew it was imposing
when passing the ADA. See Martin, 532 U.S. at 680. The Similarly, in the recent case of Dudley v. Hannaford Bros.
majority essentially contends that requiring an entity to make Co., 333 F.3d 299 (1st Cir. 2003), the First Circuit considered
such changes ipso facto results in a fundamental alteration, whether a retailer’s policy of never reconsidering a cashier’s
and is therefore not required by the ADA. This is simply not refusal to sell alcohol to a customer who appeared intoxicated
the case. violated the ADA. In Dudley, the plaintiff had suffered
severe trauma in an automobile accident, and regularly
Recent Supreme Court precedent compels a finding that the exhibited characteristics often associated with intoxication.
modification Jones requests is not a fundamental alteration. Id. at 301. Because he appeared intoxicated, a cashier refused
In Martin, a disabled professional golfer, Casey Martin, sued to sell him alcoholic beverages. Id. at 302. When the
the PGA for refusing to permit him to ride in a golf cart as a plaintiff asked to speak to a manager and explained his
modification of its “walking rule.” See Martin, 532 U.S. at situation, the manager, despite believing that the plaintiff’s
669. The PGA argued that the goal of its tournaments was to
compare the performance of competitors, a task that is
meaningful only if identical substantive rules apply to all 2
The majority discounts the instructiveness of Ma rtin, because
competitors. Id. at 686. The PGA claimed that the waiver of parking “is hardly analogous to the game of golf.” However, I believe
any rule that may alter the outcome of the event necessarily that Ma rtin’s precedential value extends well beyond the golf course . The
violates this principle, and the reasonable modification Martin majo rity’s criticism, if valid, could well be directed at their reliance on
sought would therefore be a fundamental alteration. Id. Choate, as parking benefits are similarly “hardly analogous” to Medica id
benefits. My view that both Choate and Ma rtin are instructive here is in
Despite this argument, the Supreme Court held that the no way ba sed any similarities betwe en M edica id, golf, and parking. A
refusal to grant Martin’s request was discrimination number of federal circuit courts have applied Ma rtin to ADA cases
prohibited by the ADA, finding that permitting him to ride in involving factual scenarios similarly different from golf. See, e.g., Dudley
a cart would not fundamentally alter the nature of the golf v. Hannaford Bros. Co, 333 F.3d 299, 307 (1st Cir. 2003) (relying on
tournaments. Id. at 689. Ma rtin in holding that a retailer’s policy of never reconsidering a refusal
to sell alcohol to a custome r violated the A DA ); Kapche v. City of San
Antonio , 304 F.3d 493, 498 (5th Cir. 2002) (relying on Ma rtin in holding
Of particular note is that neither the majority nor the dissent that an individualized inquiry is required in assessing whe ther a city
in Martin analyzed whether waiving the walking rule would violated the AD A in deeming an insulin-dependent applicant ineligible for
fundamentally alter that rule itself, rather, they assessed a position as a po lice officer); Forma n v. Sma ll, 271 F.3d 285, 297 (D.C.
whether waiving the rule would fundamentally alter golf Cir. 200 1). I believe that Ma rtin and Choate are instructive and
precedential because they interpret the relevant statutes and announce
tournaments. The Court’s recognition of the appropriate legal principles that are directly applicable to this case.
No. 01-2335 Jones v. City of Monroe, Michigan 27 28 Jones v. City of Monroe, Michigan No. 01-2335

story was plausible, relied on the store’s policy that fundamental than the modification requested in Martin. The
management would not revisit a cashier’s refusal to sell present action is not such a case. If the ADA requires the
alcohol to a customer. Id. Citing Martin, the First Circuit PGA to alter the enforcement of the walking rule to
noted that, because the plaintiff established his prima facie accommodate Martin’s disability, it surely must require
case, the defendant had to establish that the requested Monroe to alter the enforcement of its one-hour parking
modification, withdrawal of the “refusal to reconsider” policy, ordinance to accommodate Jones’s disability.
fundamentally altered the nature of its business. Id. at 307-
08. Again, it is important to note that the court did not The majority asserts that “[b]y its very nature, the benefit
consider whether withdrawal of the policy fundamentally of one-hour free public parking cannot be altered to permit
altered the nature of the policy itself. Of course, the waiver disabled individuals to park all day without jeopardizing the
of any rule alters that rule tautologically. Rather, the court availability of spaces to other disabled and nondisabled
assessed whether withdrawal of the policy would individuals.” This statement misses the point.
fundamentally alter the nature of its business, and found that
it would not. Id. at 308-09. Again, applying this reasoning to First, as the majority recognizes, the ADA requires courts
the present case, it is clear that we should be considering to conduct an individualized inquiry. The Supreme Court has
whether exempting Jones from the one-hour ordinance stated that “the ADA was enacted to eliminate discrimination
fundamentally alters Monroe’s downtown parking scheme as against ‘individuals’ with disabilities . . . . To comply with
a whole, not whether it fundamentally alters the one-hour this command, an individualized inquiry must be made to
ordinance itself.3 determine whether a specific modification for a particular
person’s disability would be reasonable under the
I recognize that the precise contours of when an alteration circumstances.” Martin, 532 U.S. at 688. Jones does not
is properly considered fundamental under an ADA analysis contend that Monroe’s parking program should be altered to
may be difficult to define. It is clear, however, that whatever permit disabled individuals to park all day in the spots most
this standard demands, in order to be a fundamental alteration, convenient for them. Jones argues only that she should be
the requested modification must result in an alteration more able to park in one of the only eleven spots capable of
accommodating her needs – not most convenient for her.

3 It is fair to say that, on their face, the parking limitations do
I cannot overstate the importance of applying the proper scope of not affect disabled and nondisabled individuals differently,
analysis when deciding whether a modification is a fundamental
alteration. In this case, contrary to Martin and Dudley, the majority and it is also true that most disabled individuals are able to
considers whether waiver of the one-hour ordinance fundamentally alters comply with the parking limitations and benefit from the
the one-hour ordinance itself, rather than whether it fund amentally alters parking services. Jones, however, cannot. The ADA requires
Monro e’s downtown parking scheme as a whole. Because I fear that the the question to be whether the parking limitations affect any
majority opinion may be read to establish a dangerous precedent that disabled individual differently than they affect the
perm its analyzing whether a requested modification is a fundamental
alteration in a manner that would render virtually all modifications
nondisabled. Because of her disability, the parking
“fundamental alterations,” I also wish to note that the majority’s limitations clearly do affect Jones differently than
discussion of the fundame ntal-alteration issue is merely dicta. Because nondisabled individuals. Other similarly situated individuals
the majority finds that Jones does not meet the third element of her prima are able to park for free all-day in spaces that allow them
facie case, there is no need for the majority to assess whether her meaningful access to their destination, but Jones is not.
requested mod ification is a fundamental alteration.
No. 01-2335 Jones v. City of Monroe, Michigan 29 30 Jones v. City of Monroe, Michigan No. 01-2335

Second, whether the requested alteration “jeopardizes the between this sort of modification and the benign modification
availability” of spaces to other individuals is not the requested by Jones, is obvious. The alteration to the historic
appropriate legal question. Virtually every accommodation house is fundamental; the request by Jones is simply an
made for disabled individuals, in one slight manner or alteration.
another, “jeopardizes” others. Handicapped spaces in
shopping mall parking lots “jeopardize” the availability of The majority also asserts that providing Jones with her
parking spaces for nondisabled shoppers. Permitting Casey requested modification would “require Monroe to cease
Martin to ride in a cart during a golf tournament “jeopardizes” enforcement of an otherwise valid ordinance.” This is not the
other golfers’ chances of winning the tournament. But this is case. The ADA requires only that Monroe cease enforcement
simply what the ADA requires. of the one-hour ordinance with respect to Jones. Monroe
would still be free to enforce the ordinance with respect to
The appropriate questions are whether the requested others who violate it. Martin simply held that the individual
modification is unreasonable, and whether the modification plaintiff must be permitted to use a golf cart in PGA
fundamentally alters the service. Here, the modification is tournaments, not that the PGA had to permit all golfers to use
clearly reasonable and fundamentally alters nothing. carts. The PGA only had to cease the enforcement of its rule
Monroe’s one-hour parking program provides 110 free with regard to Martin. See Martin, 532 U.S. at 689 (stating
spaces. If Jones were accommodated, only 109 would be that the walking rule could “be waived in individual cases
available during certain times. This simply cannot constitute without working a fundamental alteration”) (emphasis added).
a “fundamental alteration.”
VI. Preliminary Injunction Factors
The Technical Assistance Manual also proves to be
illuminating on this issue. The manual does not even I do not take issue with the four factors noted by the
contemplate that permitting a disabled individual to use a majority which the district court is to consider when
freight elevator would be a fundamental alteration, despite the considering a motion for a preliminary injunction. However,
fact that freight elevators are intended to transport freight, for the reasons detailed above, I believe that Jones has a high
rather than individual members of the public. See ADA likelihood of success on the merits. In addition, the emotional
TECHNICAL ASSISTANCE MANUA L II-5.1000. The and physical toll that Jones suffers from being denied a
acknowledgment that a freight elevator could be used as an parking spot is surely irreparable, especially in light of the
accommodation implicitly affirms that permitting such use severity of her multiple sclerosis. The harm to others in this
does not constitute a fundamental alteration. case is negligible. The public interest is clearly served by
eliminating the discrimination Congress sought to prevent in
The manual also provides the following compelling passing the ADA. In addition, permitting Jones to park
illustration of a modification that would be a fundamental adjacent to her building improves her capacity to counsel her
alteration: “Installing an elevator in an historic house museum clients, which also serves the public interest. Thus, proper
to provide access to the second floor bedrooms would destroy consideration of all four factors requires this Court to grant
architectural features of historic significance on the first Jones’s request for injunctive relief.
floor.” ADA TECHNICAL ASSISTANCE MANUA L II-5.5000. In
such a situation, the installation of an elevator would indeed
be a fundamental alteration. The sharp contrast, however,
No. 01-2335 Jones v. City of Monroe, Michigan 31 32 Jones v. City of Monroe, Michigan No. 01-2335

VII. The District Court’s Abuse of Discretion VIII. Conclusion
As stated above, I contend that the majority improperly As the First Circuit has noted, the ADA “did not emerge in
applies an abuse of discretion standard of review in this case, a vacuum.” Dudley, 333 F.3d at 303. Congress found that
when a de novo standard is required. However, the legal “society has tended to isolate and segregate individuals with
arguments in favor of Jones in this case are so strong that disabilities,” creating “a serious and pervasive social
application of a clearly erroneous standard would not change problem.” 42 U.S.C. § 12101(a)(2). Congress explicitly
the result. As the majority notes, the district court’s noted that disabled individuals continually encounter
determination will be disturbed only if the district court relied discrimination that includes, among other things, the
upon clearly erroneous findings of fact, improperly applied discriminatory effects of architectural and transportation
the governing law, or used an erroneous legal standard. barriers, failure to make modifications to existing practices,
Nightclubs, 202 F.3d at 888. and relegation to lesser benefits. Id. § 12101(a)(5). In order
to ensure full participation of disabled individuals in our
Because Jones is being denied the benefit of free and society, Congress enacted the ADA to “address the major
accessible all-day parking due to her disability, and because areas of discrimination faced day-to-day by people with
the modification she requests is not a fundamental alteration, disabilities.” Id. § 12101(b)(4).
the district court “improperly applied governing law,” and the
decision was therefore an abuse of discretion. The majority decision is in direct conflict with the intent of
Congress, the text of the statutes, and the corresponding
In addition, the district court “used an erroneous legal regulations, and the decision also violates binding Supreme
standard.” In assessing Jones’s likelihood of success on the Court precedent. Because the benefit “cannot be defined in
merits, the district court stated only that “[t]he City’s parking a way that effectively denies otherwise qualified handicapped
plan takes into account the needs of the handicapped and does individuals the meaningful access to which they are entitled,”
not, on its face, seem to violate the ADA. In short, the City’s Choate, 469 U.S. at 301; and because we cannot read the
parking plan seems to comply with the federally mandated ADA in a manner that “renders the word ‘fundamentally’
standard of equal access.” Whether the parking plan, on its largely superfluous,” Martin, 532 U.S. at 689 n.51, I would
face, seems to violate the ADA is not the appropriate legal reverse the district court and grant Helen Jones’s motion for
standard, nor is whether the plan seems to comply with the a preliminary injunction.
standard of equal access. The appropriate legal standards are
whether Jones is being denied a benefit due to her disability,
and whether the modification she seeks is a fundamental
alteration. The district court therefore used erroneous legal
standards in disposing of this case. Accordingly, the
erroneous legal standards used by the district court require
this Court to find the district court’s judgment to be an abuse
of discretion.