Melton v. Dallas Area Rapid Transit

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 19, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-10043
_____________________

ROGER MELTON, Individually and as next friend of his son, Jason
Melton; SUE MELTON, Individually and as next friend of her son,
Jason Melton; ADVOCACY, INCORPORATED,

Plaintiffs - Appellants,

versus

DALLAS AREA RAPID TRANSIT,

Defendant - Appellee.

__________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Between 1992 and early 1999, Dallas Area Rapid Transit’s

paratransit service picked up the disabled Jason Melton in the

alley directly behind his house. Dallas Area Rapid Transit

(“DART”) discontinued this practice in early 1999, citing safety

concerns. Since 1999, DART has picked up Jason where the alley

meets the street, approximately one block away from the house.

Plaintiffs-appellants Roger and Sue Melton, as next friends of

their disabled adult son Jason Melton, and Advocacy, Incorporated

(collectively the “Meltons”) seek an injunction requiring

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defendant-appellee DART to make “reasonable modification” to its

paratransit services to require alley pick-up for Jason, contending

that the failure to modify its plan is in violation of title II of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131,

et. seq., and section 504 of the Rehabilitation Act, 29 U.S.C. §§

794, et. seq.. We hold that DART is not required by the ADA or the

Rehabilitation Act to make reasonable modification to its

paratransit services. This holding means that the Meltons have

failed to establish a prima facie case of discrimination under

either the ADA or the Rehabilitation Act, and we thus affirm the

judgment of the district court.

I

Jason Melton is a disabled individual who qualifies for DART’s

paratransit services. The front yard of the Melton home, in which

Jason lives with his parents, includes a steep slope that prevents

the Meltons from taking Jason down to the street in his wheelchair.

Instead, the Meltons have constructed a ramp in their garage to

allow Jason access to the rear drive and paved public alley.

Although DART’s paratransit service previously had picked up

Jason in the alley directly behind the house, DART has picked up

Jason where the alley meets the street since 1999. The Meltons

cite numerous health, safety, and convenience concerns resulting

from the pick-up’s relocation to the end of the alley.

DART’s current paratransit plan -- which is approved as

compliant with title II of the ADA by the Federal Transit

2
Administration (“FTA”) -- provides curb-to-curb, shared-ride

service for people with disabilities who are unable to use DART’s

fixed route system of buses or trains. DART’s “Guide to

Paratransit Service” provides that riders using the system must

wait at the sidewalk, or at another safe waiting area in front of,

or as close as possible to, the entrance of the pick-up location.

The rider is responsible for travel to the pick-up location; that

is to say, DART has no responsibility under the plan to get the

rider to the point of pick-up. Paratransit drivers are instructed

to wait for riders at the curb of a public street, in front of, or

as close as possible to, the rider’s house, building or other

designated pick-up location.

On February 5, 2002, the Meltons filed this action against

DART, contending that DART’s refusal to pick up Jason in the alley

directly behind his house constituted illegal discrimination

against Jason under the ADA and the Rehabilitation Act. They

sought an injunction requiring DART to make “reasonable

modification” to its paratransit services to provide an alleyway

pick-up for Jason.

DART moved for summary judgment arguing that the law does not

require it to make reasonable modification to its paratransit

service. The Meltons concurrently filed an opposing motion for

partial summary judgment. The district court granted DART’s motion

for summary judgment and denied the Meltons’ motion for partial

summary judgment, holding that neither the ADA nor the

3
Rehabilitation Act required DART to make reasonable modification to

its paratransit service. Melton v. Dallas Area Rapid Transit, 326

F.Supp.2d 767 (N.D. Tex. 2003). The Meltons filed a timely motion

for a new trial, which was effectively a motion to alter or amend

the judgment pursuant to FED. R. CIV. P. 59(e). The district court

denied this motion, and the Meltons filed a timely notice of

appeal.

II

This court reviews a district court’s order granting a party’s

summary judgment motion de novo. Whittaker v. BellSouth Telecomm.,

Inc., 206 F.3d 532, 534 (5th Cir. 2000). Summary judgment is

appropriate if the record discloses “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.” FED. R. CIV. P. 56(c); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). In making this

determination, the court must evaluate the facts in the light most

favorable to the nonmoving party. Whittaker, 206 F.3d at 534.

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 A

The Americans with Disabilities Act1, 42 U.S.C. §§ 12101, et.

seq., was passed by Congress with the specific mandate of

eliminating discrimination against individuals with disabilities.

See 42 U.S.C. § 12101(b)(1). The focus of this case is title II of

the ADA, which covers discrimination in the provision of public

services. See 42 U.S.C. §§ 12131, et. seq. Title II is divided

into two parts: part A covers public services generally, 42 U.S.C.

§§ 12131, et. seq.; part B applies specifically and only to public

transportation provided by public entities, 42 U.S.C. §§ 12141, et.

seq.. It is undisputed that DART’s paratransit service is covered

by part B of title II; the parties dispute the application of part

A to the issue presented in this case.

A plaintiff must first establish a prima facie case of

discrimination before relief under the ADA can be considered. To

establish a prima facie case of discrimination under the ADA, a

plaintiff must demonstrate: (1) that he is a qualified individual

within the meaning of the ADA; (2) that he is being excluded from

participation in, or being denied benefits of, services, programs,

or activities for which the public entity is responsible, or is

1
The Meltons also raise a claim under section 504 of the
Rehabilitation Act. 29 U.S.C. § 794(a). The Rehabilitation Act
claim is discussed in Section II(C) of this opinion; however, the
following discussion relating specifically to the ADA is also
applicable to the Rehabilitation Act. Jurispridence interpreting
either section is applicable to both title II of the ADA and
section 504 of the Rehabilitation Act. See Hainze v. Richards, 207
F.3d 795, 799 (5th Cir.), cert. denied, 531 U.S. 959 (2000).
5
otherwise being discriminated against by the public entity; and (3)

that such exclusion, denial of benefits, or discrimination is by

reason of his disability. Lightbourn v. County of El Paso, Texas,

118 F.3d 421, 428 (5th Cir. 1997).

The parties agree that Jason Melton is a qualified individual

within the meaning of the ADA. The second element of the prima

facie case, however, is a point of contention. The district court

concluded, and DART argues on appeal, that the Meltons failed to

show that Jason has been excluded from participation in, or is

being denied the benefits of, DART’s paratransit service. See

Melton, 326 F.Supp.2d at 771. Although Jason has not been entirely

prohibited from using DART’s paratransit service, the Meltons argue

that Jason has been denied “meaningful access” because the

discontinuation of alleyway pick-ups makes his use of the system

dangerous and extremely difficult. The Meltons assert that the

district court erred by not applying a “meaningful access” standard

to evaluate the Meltons’ claims of denial of access. Although

Supreme Court precedent suggests that denial of “meaningful access”

is equivalent to a full denial of access under the ADA 2, we need

2
See Alexander v. Choate, 469 U.S. 287, 301 (1983) (stating in
the context of the Rehabilitation Act that a benefit cannot be
offered in a way that “effectively denies” otherwise qualified
handicapped individuals to “meaningful access” to which they are
entitled); see also Brennan v. Stewart, 834 F.2d 1248, 1261 (5th
Cir. 1988). Although this circuit has not addressed this issue
under the ADA, other circuits have extended Alexander’s “meaningful
access” standard to the ADA. See, e.g., Jones v. City of Monroe,
Mich., 341 F.3d 474, 479-80 (6th Cir. 2003); Lee v. City of Los
Angeles, 250 F.3d 668, 691 (9th Cir. 2001).
6
not decide whether the “meaningful access” standard should be

applied here; the district court’s application of an incorrect

standard of access is not reversible error unless the Meltons also

demonstrate discrimination on the basis of Jason’s disability, the

third element of the prima facie case.

Thus, we turn to the question of whether the failure of DART

to modify its plan constituted discrimination prohibited by the ADA

and the Rehabilitation Act. Discrimination on the basis of

disability differs from discrimination in the constitutional sense.

Reickenbacker v. Foster, 274 F.3d 974, 981 (5th Cir. 2001) (citing

Thompson v. Colorado, 258 F.3d 1241, 1254 (10th Cir. 2001)). To

determine whether DART discriminated against Jason on the basis of

his disability, we examine the ADA itself and its own definitions

of discrimination.3 If the ADA requires reasonable modification of

DART’s paratransit plan, the Meltons may have stated a prima facie

case of discrimination and in which case we assume that summary

judgment in favor of DART would be inappropriate. On the other

hand, if the ADA imposes no such requirement, as we hold, the

Meltons have failed to establish a prima facie case and summary

judgment is appropriately granted to DART.

3
The Meltons also argue that DART’s refusal to perform
alleyway pickups constitutes “other discrimination” under the
second element of the prima facie case. This argument need not be
addressed separately because it requires the same legal analysis as
determining whether DART discriminated against Jason on the basis
of his disability under the third element of the prima facie case.
Both require this Court to determine what constitutes
discrimination in the context of the ADA.
7
 B

We now turn to the question at the heart of this case:

whether a paratransit service that is consistent with an FTA-

approved plan is sufficient for compliance with the ADA, or whether

the ADA requires a public transportation system to make reasonable

modifications to its paratransit service. This difficult question

is an issue of first impression not only for our Court, but for all

circuits. A proper analysis requires an examination of both the

statutory and regulatory frameworks of the ADA.

As we have noted above, title II of the ADA is divided into

two subparts. Part A governs all public entities, and part B

applies specifically to the provision of public transportation by

public entities. 42 U.S.C. §§ 12131-12134; 42 U.S.C. §§ 12141-

12150. The Attorney General is directed to promulgate regulations

to implement part A under 42 U.S.C. § 12134. But, it is the

Secretary of Transportation who is directed to promulgate

regulations to implement part B under 42 U.S.C. § 12149 and

specifically to promulgate regulations regarding paratransit

service under 42 U.S.C. § 12143(b).

DART argues that the ADA does not require reasonable

modifications of paratransit service, although it acknowledges that

public entities generally are required by 28 C.F.R. § 35.130(b)(7)

to make reasonable modifications to avoid discrimination on the

basis of disability:

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 A public entity shall make reasonable
modification in policies, practices, or
procedures when the modifications are
necessary to avoid discrimination on the basis
of disability, unless the public entity can
demonstrate that making the modifications
would fundamentally alter the nature of the
service, program, or activity.

Part B, however, is explicitly excepted from the reasonable

modifications requirement:

To the extent that public transportation
services, programs, and activities of public
entities are covered by subtitle B of title II
of the ADA (42 U.S.C. 12141), they are not
subject to the requirements of this part.

29 C.F.R. § 35.102(b). Thus, DART argues that because paratransit

services are covered by part B, they are not subject to regulations

promulgated by the Attorney General under 28 C.F.R. part 35.

Instead, paratransit services are subject only to Department of

Transportation regulations found in 49 C.F.R. part 37. The

Department of Transportation regulations contain no analogous

provision requiring reasonable modification to be made to

paratransit services to avoid discrimination.

Aside from these regulations, DART further argues that the

statute itself does not require reasonable modification. DART

contends that because paratransit services are not intended to be

a comprehensive system of transportation to meet the needs of

individuals with disabilities, a modification provision is

inappropriate. The purpose of paratransit service is to provide

service to individuals with disabilities comparable to the level of

9
public transportation services provided to non-disabled

individuals. 42 U.S.C. § 12143(a). DART argues that the FTA

review of the paratransit plan stands in the place of any

reasonable modification requirement for determining compliance with

the ADA. This is true because the FTA evaluates whether the plan

meets the ADA’s stated requirement of service comparable to the

entity’s fixed route service. 49 C.F.R. § 37.147(d).

On the other hand, the Meltons argue that both the regulations

and the statutory language require DART to make reasonable

modifications to its paratransit service. The Meltons interpret 28

C.F.R. § 35.102(b) as applying the Attorney General’s, as well as

the Secretary of Transportation’s, regulations to transportation

services except where a conflict arises between the two. Relying

on references to modification in both congressional findings

reflected in the statute4 and the definitions in 42 U.S.C. §

12131(2)5, the Meltons argue that the requirement of reasonable

modifications should be understood to cover both part A and part B

of title II. Because part A is a general provision and part B

4
“Individuals with disabilities continually encounter various
forms of discrimination, including . . . failure to make
modifications to existing facilities and practice . . . .” 42
U.S.C. § 12101(a)(5) (emphasis added).
5
“The term ‘qualified individual with a disability’ means an
individual with a disability who, with or without reasonable
modifications to rules, policies, or practices . . . meets the
essential eligibility requirements for receipt of services or the
participation in programs or activities provided by a public
entity.” 42 U.S.C. § 12131(2) (emphasis added). This definition
applies to terms used in title II.
10
provides specific examples of discrimination and remedies in the

public transportation context, the Meltons assert that nothing in

part B demonstrates congressional intent to exempt providers of

public transportation from general requirements under part A.6

Furthermore, the Meltons assert that the regulations themselves

acknowledge that 28 C.F.R. part 35 applies to part B:

Entities to which this part applies also may
be subject to ADA regulations of the
Department of Justice (28 C.F.R. parts 35 or
36, as applicable). The provisions of this
part shall be interpreted in a manner that
will make them consistent with applicable
Department of Justice regulations. In any
case of apparent inconsistency, the provisions
of this part shall prevail.

49 C.F.R. § 37.21(c) (describing the general applicability of the

regulations); see also 28 C.F.R. App. A to part 35; 49 C.F.R. App.

D to part 37.

We are unconvinced that either the ADA or its implementing

regulations require DART to make reasonable modification to its

paratransit service to accommodate Jason Melton. We reason as

follows. Paratransit services are provided as a complement to

fixed route service for qualified individuals. 42 U.S.C. § 12143.

6
The Meltons cite case law in support of this proposition,
arguing that Martin v. Metro. Atlanta Rapid Trans. Auth., 255
F.Supp.2d 1362, 1373 (N.D. Ga. 2002), and Burkhart v. Washington
Metro. Area Trans. Auth., 112 F.3d 1207, 1210 (D.C. Cir. 1997),
hold that regulations in part A do apply to entities regulated
under part B. This assertion is misleading because the court in
Burkhart, on which Martin relies, explicitly declines to address
the contention that part A regulations do not apply to public
transportation providers subject to part B because the contention
was not properly preserved. Burkhart, 112 F.3d at 1210 n.1.
11
The ADA provides in 42 U.S.C. § 12143 a comprehensive scheme

detailing the requirements for compliance with the ADA, including

a definition of discrimination to be used in determining compliance

of paratransit services with the ADA:

It shall be considered discrimination for
purposes of section 12132 of this title . . .
for a public entity which operates a fixed
route system . . . to fail to provide with
respect to the operations of its fixed route
system, in accordance with this section,
paratransit and other special transportation
services to individuals with disabilities,
including individuals who use wheelchairs,
that are sufficient to provide to such
individuals a level of service (1) which is
comparable to the level of designated public
transportation services provided to
individuals without disabilities using such
system . . . .

42 U.S.C. § 12143(a). Accordingly, public entities operating a

fixed route system are required to submit a plan annually to the

Secretary of Transportation, who reviews the plan to determine

whether the plan meets the requirements of 42 U.S.C. § 12143(a).

42 U.S.C. §§ 12143(c)(7) & (d). These requirements include

providing a level of service with paratransit service comparable to

the services provided to individuals without disabilities using the

fixed route system. See 49 C.F.R. § 37.147. Once the plan is

approved, the public entity is required to provide paratransit

services in accordance with the plan. Providing paratransit

services not in accordance with the plan is the prohibited

discrimination. 42 U.S.C. § 12143(e)(4).

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 Because paratransit service is meant to act as the disability

complement to established fixed route transportation services, this

comprehensive regulatory scheme signals that no interim extra-plan

modification is statutorily or otherwise required by a public

entity when the public entity is properly operating under a FTA-

approved plan. The FTA-approved plan is itself the accommodation

to the disabled by the public transportation entity. It is the

violation of the plan itself that constitutes the prohibited

discrimination under title II, not the failure to modify the plan

to address particularized complaints. The Meltons do not assert

that DART is operating in a manner that is not in accordance with

its FTA-approved paratransit plan7 and, therefore, the ADA does not

impose a requirement upon DART to modify its plan to serve Jason

Melton’s particular demands.

The regulations likewise do not impose a duty on DART to make

reasonable modifications of its paratransit service. Although the

regulations acknowledge that aspects of the provision of public

7
The Civil Rights Office of the FTA issued a decision in a
factually similar complaint that stated that the discontinuation of
alley pick-ups did not make DART’s paratransit service deficient.
The exact pick-up and drop-off sites are operational issues to be
determined by DART. Although this decision has no precedential
value for the case before us, it demonstrates one of the avenues
open to the Meltons and similarly situated individuals to challenge
DART’s provision of services. Among other options, dissatisfied
individuals may challenge the plan itself as not providing
comparable service or challenge service as not in compliance with
the plan. In short, our decision in this case does not relegate
disabled individuals to voiceless acceptance of subpar
transportation merely because the ADA does not require reasonable
modification to paratransit services.
13
transportation may be regulated by Department of Justice

regulations, see, e.g., 49 C.F.R. § 37.21(c), the plain language of

28 C.F.R. § 35.102(b) cannot be ignored:

To the extent that public transportation
services, programs, and activities of public
entities are covered by subtitle B of title II
of the ADA (42 U.S.C. 12141), they are not
subject to the requirements of this part.

(Emphasis added). It is undisputed that the operation of DART’s

paratransit service is covered by 42 U.S.C. §§ 12141, et. seq., and

that the Secretary of Transportation has been directed by statute

to issue regulations relating specifically to paratransit

transportation. Furthermore, even if the Secretary of

Transportation only has the authority to promulgate regulations

relating directly to transportation, the reasonable modification

requested by the Meltons relates specifically to the operation of

DART’s service and is, therefore, exempt from the Attorney

General’s regulations in 28 C.F.R. part 35. To the point, the

ADA’s implementing regulations impose no requirement on DART to

make reasonable modifications to its paratransit service.

C

Finally, we hold that the Rehabilitation Act does not provide

an independent basis for requiring DART to make reasonable

modification to its paratransit service. Section 504 of the

Rehabilitation Act provides

no otherwise qualified handicapped individual
in the United States . . . shall, solely by
reason of his handicap, be excluded from the

14
 participation in, be denied the benefits of,
or be subjected to discrimination under any
program or activity receiving federal
financial assistance . . . .

29 U.S.C. 794(a).8 Congress intended to extend the protections of

the Rehabilitation Act to cover all programs of state or local

governments when it passed the ADA. See Hainze, 207 F.3d at 799.

The language of title II generally tracks the language of section

504 of the Rehabilitation Act. The remedies, procedures and rights

available under title II are those available under Section 504. 42

U.S.C. § 12133. We decline to find that a right to reasonable

modification in paratransit services is created by the

Rehabilitation Act when an identical right does not exist under the

ADA. We hold that DART is not required by the Rehabilitation Act

to make reasonable modification to its paratransit service.

III

For the aforementioned reasons, we hold that DART is not

required by either the ADA or the Rehabilitation Act to make

reasonable modification to its paratransit service. The Meltons

have failed to establish a prima facie case of discrimination under

8
The prima facie case of discrimination under the
Rehabilitation Act is operationally identical to the test under the
ADA, requiring a plaintiff to allege: (1) the existence of a
program or activity within the state which receives federal
financial assistance; (2) the plaintiff is an intended beneficiary
of the federal assistance; and (3) the plaintiff is a qualified
handicapped person, who solely by the reason of her handicap has
been excluded from participation in, been denied benefits from, or
otherwise has been subject to discrimination under such program or
activity. See Brown v. Sibley, 650 F.2d 760, 769 (5th Cir. 1981).

15
either the ADA or the Rehabilitation Act, and summary judgment was

appropriately granted to DART. The judgment of the district court

is therefore

AFFIRMED.

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