Mark Silguero v. CSL Plasma, Incorporated , 907 F.3d 323 ( 2018 )

Case: 17-41206 Document: 00514694256 Page: 1 Date Filed: 10/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-41206 FILED
October 23, 2018
Lyle W. Cayce
MARK SILGUERO, Clerk
Plaintiff - Appellant
AMY WOLFE,
Intervenor - Appellant
v.
CSL PLASMA, INCORPORATED,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before KING, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
CSL Plasma, Inc. is a plasma collection center that will pay anyone who
passes its screening test to donate plasma. Mark Silguero and Amy Wolfe are
both individuals with disabilities who attempted to donate plasma but whom
CSL Plasma deferred for reasons they allege related to their disabilities.
Silguero used a cane and had a limp; Wolfe had anxiety and required the use
of a service animal. Silguero and Wolfe sued under the Americans with
Disabilities Act (“ADA”) and Chapter 121 of the Texas Human Resources Code
Case: 17-41206 Document: 00514694256 Page: 2 Date Filed: 10/23/2018
No. 17-41206
(“THRC”). The district court granted summary judgment in CSL Plasma’s
favor. It concluded that those laws did not apply because CSL Plasma was
neither a “public accommodation” under the ADA nor a “public facility” under
the THRC.
We affirm the district court’s decision regarding the scope of the ADA.
The core dispute is whether CSL Plasma is a “service establishment” within
the definition of “public accommodation.” We conclude it is not. CSL Plasma
does not provide any “service” to customers. Instead, it pays them for the
inconvenience of donating plasma so that it can collect a commercially valuable
asset. We certify the THRC questions to the Supreme Court of Texas.
I. Background
CSL Plasma operates a network of plasma collection centers. It offers to
pay members of the public to donate 1 plasma. Individuals who wish to donate
must pass a screening evaluation that confirms that the individual donating
and the plasma extracted meet Food and Drug Administration (FDA)
regulations. Those who do not pass the screening, for whatever reason, are
deferred—told they will not be permitted to donate and will not be paid.
Those who pass the screening are taken to a room where they are
connected to specialized machinery that removes their blood, separates the
plasma, and then re-circulates the remaining elements of blood into their
system. After CSL Plasma extracts the plasma, it pays the individual. There
is no indication in the record that members of the public pay CSL Plasma in
exchange for plasma collection or that it offers any services for which the public
1 The district court refused to use the word “donate” because “individuals are
compensated for supplying their plasma” and it was therefore “inaccurate to refer to them as
‘donors’ or to the process as ‘donation.’” We use the term donate and its variants because
that term is used in federal regulations covering the process. See, e.g., 21 C.F.R. § 606.100.
But, for clarity, CSL Plasma pays any individual who donates plasma.
2
Case: 17-41206 Document: 00514694256 Page: 3 Date Filed: 10/23/2018
No. 17-41206
can pay. CSL Plasma sells the plasma it collects to other private entities who
use it for various medical purposes. 2 Nothing in the record indicates that CSL
Plasma enters into any sort of contingency fee arrangement with members of
the public, where the individual donating receives a percentage of the eventual
sale price.
Silguero and Wolfe are two individuals who attempted to donate plasma
at CSL Plasma but were both deferred. Silguero had previously donated before
his deferral, while Wolfe had never donated before. The parties dispute the
precise motivation for why Silguero and Wolfe were each deferred. But all
agree that the deferrals were based on pre-existing policies implicating
Silguero’s and Wolfe’s disabilities. 3
Silguero was initially deferred in December 2013, and he says that the
deferral was based on CSL Plasma’s policy not to accept donors who have an
“unsteady gait,” though the precise reason for his initial deferral has changed
over time. Silguero has bad knees and requires the use of a cane to walk. After
the initial deferral, CSL Plasma permanently deferred him because he
allegedly later threatened employees for initially deferring him. Silguero has
presented evidence that he never threatened employees or reacted
inappropriately to the initial deferral; he asserts that CSL Plasma’s reason for
2 The parties do not dispute the district court’s characterization that CSL Plasma sells
the plasma. Some of the record evidence indicates that CSL Plasma may keep the plasma
within its corporate family rather than selling it to completely unrelated parties. We do not
believe the difference is material to the outcome of the case.
3 CSL Plasma argues that it implemented the policies in an effort to comply with the
FDA’s general regulation that collection centers only allow those in “good health” to donate.
21 C.F.R. § 630.10(a). The parties disagree about the extent to which the particular policies
at issue are necessary to comply with the FDA regulations. Obviously, any specific FDA
regulations necessary to protect the health of the plasma donors or recipients would override
any contrary statutes of general application, such as the ADA. Given our holding in this case,
we need not explore this potential dichotomy further.
3
Case: 17-41206 Document: 00514694256 Page: 4 Date Filed: 10/23/2018
No. 17-41206
his permanent deferral is essentially a pretext to cover for discrimination
based on his disability. He remains permanently deferred. 4
Wolfe was deferred in October 2016 based on CSL Plasma’s policy not to
accept donors whose anxiety was severe enough to require the use of a service
animal. 5 The parties agree that CSL Plasma had a preexisting policy that
applied to all individuals who used animals to treat anxiety. At the time Wolfe
tried to donate, a doctor at CSL Plasma was contacted to verify that she would
be unable to donate due to her service animal. 6 The record is unclear to what
extent the doctor reviewed information unique to Wolfe. But regardless of her
unique circumstances, she will be unable to donate so long as she uses her
service animal to treat the anxiety.
Silguero and Wolfe both sued, alleging unlawful discrimination under
Title III of the ADA, 42 U.S.C. § 12182, and Chapter 121 of the THRC, TEX.
HUM. RES. CODE § 121.001 et seq. CSL Plasma moved for summary judgment,
arguing that it was neither a “public accommodation” under the ADA nor a
“public facility” under the THRC. It also argued that Silguero and Wolfe could
not identify a genuine issue of material fact or show that CSL Plasma had done
anything other than impose a legitimate safety requirement. The district court
granted summary judgment, concluding that neither the ADA nor the THRC
4 Were we to conclude that the ADA applies here, there would be a fact question as
to the reason for his permanent deferral.
5 The record is unclear whether the animal was a “service animal” as that term is used
in various statutes and regulations. However, because we view the facts in the light most
favorable to the non-moving party and the issue was not specifically briefed by CSL Plasma
before the district court, we assume it was a “service animal.”
6 We offer no opinion here on whether use of a service animal renders a person
“disabled” for purposes of the ADA sections in question. See 42 U.S.C. 12102(1) & (3)
(defining “disability” and “regarded as” having a disability). We assume arguendo that it
does.
4
Case: 17-41206 Document: 00514694256 Page: 5 Date Filed: 10/23/2018
No. 17-41206
applied to CSL Plasma. It did not address CSL Plasma’s other arguments.
Silguero and Wolfe now appeal.
II. Standard of Review
This court reviews de novo a district court’s grant of summary judgment,
applying the same standard as the district court. Austin v. Kroger Tex., L.P.,
864 F.3d 326, 328 (5th Cir. 2017) (citing Ford Motor Co. v. Tex. Dep’t of Transp.,
264 F.3d 493, 498 (5th Cir. 2001)). It reviews all evidence in the light most
favorable to Silguero and Wolfe, the non-moving parties. See id. at 328–29.
III. Discussion
We first address why we agree with the district court that CSL Plasma
is not a “public accommodation” under the ADA. We then explain why we
certify questions about the THRC to the Supreme Court of Texas and set out
the necessary information for the Supreme Court of Texas to answer the
questions.
A. ADA Claim
The crux of this case is whether CSL Plasma is a “service establishment”
under 42 U.S.C. § 12181(7)(F). If it is, then it is a “place of public
accommodation,” and Title III of the ADA applies to it. See 42 U.S.C. §
12182(a). If it is not, then it cannot be held liable for discrimination under
Title III. 7
The term “service establishment” appears in the definition of public
accommodation. The definition includes twelve different categories of
accommodations. The single category at issue in this case includes an
enumerated list of fifteen establishments, followed by the catchall phrase “or
7 Of course, this opinion in no way countenances any such discrimination not
grounded in safety and health regulations, but our inquiry is limited to the scope of the ADA’s
coverage here—nothing more, nothing less.
5
Case: 17-41206 Document: 00514694256 Page: 6 Date Filed: 10/23/2018
No. 17-41206
other service establishment.” 42 U.S.C. § 12181(7)(F). 8 Silguero and Wolfe do
not argue that plasma collection centers are among the enumerated items
listed in that category.
Instead, the dispute is over the catchall phrase “other service
establishment.” 9 The parties agree that a “service establishment” is,
unsurprisingly, an “establishment” providing “services” to others. They also
agree that CSL Plasma is an “establishment.” They disagree about whether
CSL Plasma provides “services” to others. 10
The word “service” generally denotes some “helpful act” or an “act giving
assistance or advantage to another.” See Service, MERRIAM-WEBSTER
COLLEGIATE DICTIONARY (10th ed. 1993); Service, WEBSTER NEW WORLD
COLLEGIATE DICTIONARY (3d ed. 1996). The adjective “helpful” in the first
definition implies that someone receives help from the act. In the second
definition, the verb “giving” and the preposition “to” indicate that the
“assistance or advantage” is conveyed from the act to the individual.
8 The list is as follows: “a laundromat, dry-cleaner, bank, barber shop, beauty shop,
travel service, shoe repair service, funeral parlor, gas station, office of an accountant or
lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or
other service establishment.” 42 U.S.C. § 12181(7)(F).
9 The Department of Justice filed an amicus brief expressing its view that plasma
collection centers are “service establishments” under Title III. Neither the DOJ nor the
parties contend that the DOJ’s views are entitled to Chevron deference. Rightly so, because
agencies are not entitled to deference when they assert their statutory interpretations solely
through litigation briefs. See Christensen v. Harris Cty., 529 U.S. 576, 587, (2000); Freeman
v. Quicken Loans, Inc., 626 F.3d 799, 805–06 (5th Cir. 2010), aff’d on other grounds, 566 U.S.
624 (2012); see also Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 365 (4th Cir. 2000). At most,
the DOJ’s views would be entitled to “respect” under Skidmore v. Swift & Co., 323 U.S. 134(1944), which is given “only to the extent that [the government’s] interpretations have the
power to persuade.” ExxonMobil Pipeline Co. v. United States Dep’t of Transp., 867 F.3d 564,
574 n.4 (5th Cir. 2017) (quoting Moore v. Hannon Food Serv., Inc., 317 F.3d 489, 497 (5th Cir.
2003)). Because we are unpersuaded by the DOJ’s interpretation, we do not defer to it.
10 Silguero and Wolfe argue that CSL Plasma advertises plasma collection as a
“service” it gives for customers. How a party advertises the work it performs has no bearing
on what Congress meant by the term “service.”
6
Case: 17-41206 Document: 00514694256 Page: 7 Date Filed: 10/23/2018
No. 17-41206
Congress’s use of the word “service” thus suggests not only that the
establishment performed some action but also that the action helped or
benefited the recipient. In the case of a “service establishment,” the
establishment serves the members of the public who are “helped” or “benefited”
by the service. Other definitions from authoritative dictionaries bolster this
reading. For example, service can also be defined as “the provision (of labour,
material appliances, etc.) for the carrying out of some work for which there is
constant public demand.” Service, OXFORD-ENGLISH DICTIONARY (2d ed. 1988);
see also Service, RANDOM HOUSE DICTIONARY (2d ed. 1987) (“[T]he organized
system of apparatus, appliances, employees, etc., for supplying some
accommodation required by the public.”). The “provision” of the “work” goes to
the “public” who “demands” it. 11
Based on these dictionary definitions, a “service establishment” is an
establishment that performs some act or work for an individual who benefits
from the act or work. 12 Our definition is materially similar to the one
developed by the Tenth Circuit, the only other federal court of appeals to
address the ADA’s applicability to plasma collection centers. See Levorsen v.
Octapharma Plasma, Inc., 828 F.3d 1227 (10th Cir. 2016). It defined a “service
11Silguero and Wolfe also rely on Black’s Law Dictionary to define “service,” but it
cuts against their argument. Black’s defines “service” to mean work that is usually done in
exchange “for a fee,” which Silguero and Wolfe concede did not happen here. Service, BLACK’S
LAW DICTIONARY (10th ed. 2010).
12 Silguero and Wolfe emphasize the definition for the word “service” that we have
used in other contexts. See Frame v. City of Arlington, 657 F.3d 215, 226 (5th Cir. 2011) (en
banc) (noting that “service” under Title II of the ADA generally means “the performance of
work commanded or paid for by another,” or “an act done for the benefit or at the command
of another”); Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc) (noting
that “service” under a provision of the Airline Deregulation Act generally means “a
bargained-for or anticipated provision of labor from one party to another”). We do not rely
on the definitions of “service” in other contexts because differing contexts can create different
meanings. But we note that even if we were to rely on those definitions, they would reinforce
the definition we have identified here.
7
Case: 17-41206 Document: 00514694256 Page: 8 Date Filed: 10/23/2018
No. 17-41206
establishment” to mean “a place of business or a public or private institution
that, by its conduct or performance, assists or benefits someone or something
or provides useful labor without producing a tangible good for a customer or
client.” Id. at 1231. Though its definition has additional verbs, each of the
verbs connote aid or benefit performed by the establishment for the customer. 13
We disagree with the Tenth Circuit, however, about whether plasma
collection centers provide a “service” to customers. Three textual clues lead us
to that result. First, the word “service” implies that the customer is benefitted
by the act, and no such benefit occurs here. Second, the list preceding the
catchall term “other service establishment” does not include any
establishments that provide a “service” without a detectable benefit to the
customer. Finally, third, the structure of the ADA indicates that an
establishment typically does not pay a customer for a “service” it provides.
First, the words “service establishment” alone imply that the plasma
donation at issue here is not a “service.” As our review of the dictionary
definitions above demonstrates, the “service” in “service establishment” is
generally viewed as flowing from the establishment to an individual. Here,
donors receive no obvious “benefit” or “help” which would make the plasma
collection center’s act a “service.” They are hooked up to a machine and drained
of life-sustaining fluid, subjecting them to discomfort and medical risks.
Donors do not have the plasma earmarked for themselves or to aid a specific
third party for whom they are concerned. Instead, the plasma becomes the
property of the plasma collection center to do with it whatever it pleases. The
labor is not “useful” to the donor; it is “useful” to the establishment. The donor
13We need not decide whether a “service” cannot produce a tangible good. If anything,
it supports our conclusion that plasma collection is not a “service” because the goal of the
process is to create marketable plasma. But the parties have not focused their briefing on
this point, and we therefore need not address it.
8
Case: 17-41206 Document: 00514694256 Page: 9 Date Filed: 10/23/2018
No. 17-41206
is benefitted only by the payment of money, which is wholly collateral to the
act of plasma collection. Thus, as plasma collection occurs in this case, the
individual performs a service for the establishment, not the other way around.
Second, this reading of “service establishment” is bolstered by the
enumerated list preceding that catchall phrase. Generally, a catchall phrase
should be read in light of the preceding list, an interpretive maxim known as
ejusdem generis (“of the same kind”). See Norfolk & W. Ry. Co. v. Am. Train
Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991). Silguero and Wolfe argue we
should not apply ejusdem generis here for two reasons. One, the term “public
accommodation” is to be liberally construed. See PGA Tour, Inc. v. Martin, 532
U.S. 661, 676–77 (2001). But even when a statute is to be construed liberally,
it is still not untethered from its text. See Watson v. Philip Morris Cos., 551
U.S. 142, 147 (2007). Canons of interpretation help ensure that words are not
stretched past the limits Congress intended. See Chickasaw Nation v. United
States, 534 U.S. 84, 94 (2001). If Congress wanted to cover all “establishments”
it could have done so, omitting the word “service.” So a “liberal” reading cannot
be one which reads out one of the words. Thus, applying ejusdem generis helps
us ensure we honor Congress’s legislative choices.
The second reason they offer for ignoring ejusdem generis is the
legislative history. Legislative history is a last resort for ambiguous statutes,
and it does not help the plaintiffs here in any event. 14 See Nat’l Ass’n of Mfrs.
v. Dep’t of Def., 138 S. Ct. 617, 634 (2018).
14 The legislative history argued by Silguero and Wolfe does not support their
conclusion. They point out only that a previous version of the bill wrote the catchall as “other
similar places.” See H.R. Conf. Rep. No. 101-596, at 75 (1990). The House Report indicates
the word “similar” was removed because plaintiffs would “not have to prove that the entity
being charged with discrimination is similar to the examples listed.” H.R. Rep. No. 101-485,
pt. 3, at 54 (1990). Putting a finer point on it, the Report explained that “the person must
show that the entity falls within the overall category. For example, it is not necessary to
show that a jewelry store is like a clothing store. It is sufficient that the jewelry store sells
9
Case: 17-41206 Document: 00514694256 Page: 10 Date Filed: 10/23/2018
No. 17-41206
Applying ejusdem generis highlights how oddly plasma collection
centers would fit into the list. Each of the items on the list in 42 U.S.C.
§ 12181(7)(F) involves establishments acting in some way that clearly benefits
the individual. Dry-cleaners press customers’ shirts. Lawyers file clients’
pleadings. Hospitals mend patients’ broken bones. For each, the
establishment performs an action that directly benefits the individual, just as
we defined the term above. But plasma collection does not provide any
detectable benefit for donors.
Silguero and Wolfe contend that the list, however, supports a broader
reading of “service establishment” for two reasons. One, they argue that some
of the establishments on the list may perform services for free. For instance,
legal aid clinics provide services to the indigent free of charge. But the absence
of payment does not change the fact that lawyers’ work unambiguously is done
to benefit clients so that the work would be a “service.” Two, Silguero and
Wolfe contend that one of the examples, a bank, may not only perform some
services for free but may pay customers through interest on savings. But in
that instance, any “free” services and payment are directly linked to the act
the bank performs to benefit the customer. Banks manage money. They
benefit customers by storing and leveraging it. Any payment customers receive
is not a result of the customer’s labor but is instead an intrinsic result of the
act the bank performs to serve the customer. Contrast that with plasma
collection centers. After the donor expends his time and resources donating
plasma, the plasma belongs to the plasma collection center. The plasma
collection center does not manage or oversee the plasma on behalf of the donor.
items to the public.” Id. This example shows that Congress was concerned about unduly
limiting the catchalls to be limited to variants of the enumerated items. Here, we do not use
ejusdem generis to limit “service establishments” to certain types of services; we use it to
determine what a “service” is.
10
Case: 17-41206 Document: 00514694256 Page: 11 Date Filed: 10/23/2018
No. 17-41206
Donors are therefore unlike bank customers because they are not benefitted by
the act the establishment performs.
The third reason we conclude that CSL Plasma does not provide a
“service” is that CSL Plasma pays for plasma donation, which the structure of
the ADA indicates is governed by other provisions. The parties agree that CSL
Plasma pays all donors for plasma donation. That relationship is more akin to
employment or contract work, not the provision of a “service” to a customer.
Indeed, our lexicon confirms that society thinks of those relationships as
different. “Customers” are “purchaser[s] of goods and services.” See Customer,
OXFORD ENGLISH DICTIONARY (2d ed. 1989) (emphasis added). In contrast, an
“employee” is a “person who works for an employer . . . for wages or a salary.”
See Employee, OXFORD ENGLISH DICTIONARY (2d. 1989). Payment is thus
relevant because it may indicate whether an individual is a customer or is
instead an employee or other hired laborer.
The distinction between customer relationships and employment
relationships is embodied in the structure of the ADA. Title I applies to
employment relationships, while “service establishment” defines “public
accommodations” under Title III. Compare 42 U.S.C. § 12112(a) with 42 U.S.C.
§ 12181(a). Congress made specific legislative choices about how broadly Title
I would apply. For instance, Title I protects only “employees” and extends only
to employers hiring a sufficient number of employees. See 42 U.S.C.
§ 12111(4)–(5). Thus, courts have often determined that employees at small
businesses and independent contractors are not protected by Title I of the ADA.
See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 441 (2003)
(noting that the ADA “is inapplicable to very small businesses”); Flynn v.
Distinctive Home Care, Inc., 812 F.3d 422, 427 & n.20 (5th Cir. 2016) (collecting
persuasive authority that independent contractors are not covered by Title I of
the ADA). If we interpret “service establishment” in Title III so broadly that
11
Case: 17-41206 Document: 00514694256 Page: 12 Date Filed: 10/23/2018
No. 17-41206
it includes employment and employment-like relationships, we risk
overrunning Congress’s legislative choices in Title I.
The way that Silguero and Wolfe interpret “service,” Title III makes Title
I largely redundant. They contend plasma collection benefits donors (and is
therefore a “service”) because it enables them to “realize” the “commercial
value” of their plasma, which they could not otherwise do without CSL
Plasma. 15 That conception of a “service” would turn virtually every employer
and entrepreneur into a “service establishment.” After all, a small restaurant
enables cooks to “realize” the “commercial value” of their skills by providing a
location for hungry people to come. A construction general contractor enables
construction independent contractors to “realize” the “commercial value” of
their machinery by connecting them with clients in need. A commercial
landscaper buying gravel from a rock quarry enables the quarry to “realize”
the “commercial value” of its gravel by putting it to commercial use. Under
Silguero and Wolfe’s interpretation, employees or contractors of these
establishments could simply dodge the narrowing scope of Title I and sue
under Title III. It is illogical to construe one title to eviscerate the other.
We thus reject Silguero and Wolfe’s argument that the direction of
payment for services is irrelevant. In doing so, we reject the Tenth Circuit’s
conclusion that a service is provided “regardless of whether [establishments]
provide or accept compensation as part of that process.” Octapharma Plasma,
15 In passing, Silguero and Wolfe also contend that CSL Plasma “offers discrete
medical services even apart from evaluation and medical extraction,” including
“advice about how to improve hematocrit and protein levels” and “donors’ blood pressure.”
These supposed services do not change the outcome in this case. First, Silguero and Wolfe
have not contended that they sought but were denied these supposed services. Indeed,
nothing in their complaints suggests that they want to avail themselves of these supposed
services rather than donate. Second, these were not services but were instead incidental to
the donation process. They are no more “services” than is a background check for a job
application.
12
Case: 17-41206 Document: 00514694256 Page: 13 Date Filed: 10/23/2018
No. 17-41206
Inc., 828 F.3d at 1233–34. We do not hold that payment from a customer to
the establishment is necessary to be considered a “service establishment” or
that a “service” is never performed when an establishment compensates an
individual. We conclude merely that payment—to or by the establishment—is
highly relevant in determining whether an establishment provides a “service”
to a customer and is therefore a “service establishment.” 16
Here, CSL Plasma pays donors who receive no detectable benefit from
the act of donation. Its entire business model is structured this way. It thus
does not offer plasma collection as a “service” to the public and is therefore not
a “service establishment.” We affirm the district court’s order granting
summary judgment to CSL Plasma on Silguero’s and Wolfe’s ADA claims.
B. THRC Claim
Silguero and Wolfe have also sued under § 121.003(a) of the THRC,
which provides similar protection for disabled individuals under state law. The
district court concluded that CSL Plasma was not a “public facility” under the
THRC and therefore was not subject to liability. We examine whether Texas
has already addressed this question and, if not, whether we can and should
certify the question to the state’s highest civil court.
The THRC differs significantly from the ADA. It was enacted before the
ADA. It is not split into various titles that cover distinctly different activities.
It uses different terms to define its scope. Instead of applying to “public
accommodations,” it applies to “public facilit[ies].” See TEX. HUM. RES. CODE.
§ 121.003(a). The term “public facility” is defined in an entirely different
manner than “public accommodation” under the ADA. See TEX. HUM. RES.
CODE § 121.002(5). Recognizing these differences, the Supreme Court of Texas
16 This conclusion is consistent with PGA Tour, Inc., where the Supreme Court
determined that a golfer entering a tournament open to the public was protected by Title III
partly because the golfer paid $3,000 to enter the tournament. See 532 U.S. at 679.
13
Case: 17-41206 Document: 00514694256 Page: 14 Date Filed: 10/23/2018
No. 17-41206
has said it will not look to federal courts’ interpretations of “public
accommodation” to interpret the term “public facility.” See Beeman v.
Livingston, 468 S.W.3d 534, 542–43 (Tex. 2015). We cannot simply assume
that, because CSL Plasma is not a “public accommodation” under the ADA, it
is not a “public facility” under the THRC.
But answering the question of whether a plasma collection center is a
“public facility” is difficult. Texas courts have not interpreted the term “public
facility” often. The Supreme Court of Texas only appears to have done so once
and in a far different context from this case. See id. No Texas appellate court,
to our knowledge, has addressed the application of the THRC to plasma
collection centers. Thus, we examine whether we can and should certify the
question to the Supreme Court of Texas.
The Texas Constitution grants the Supreme Court of Texas the power to
answer questions of state law certified by a federal appellate court. TEX.
CONST. art. V, § 3-c(a). Texas rules provide that we may certify “determinative
questions of Texas law having no controlling Supreme Court [of Texas]
Precedent” to the Supreme Court of Texas. TEX. R. APP. P. 58.1. Our case law
provides factors to use in deciding whether to certify a question:
(1) the closeness of the question and the existence of sufficient
sources of state law; (2) the degree to which considerations of
comity are relevant in light of the particular issue and case to be
decided; and (3) practical limitations of the certification process:
significant delay and possible inability to frame the issue so as to
produce a helpful response on the part of the state court.
Swindol v. Aurora Flight Scis. Corp., 805 F.3d 516, 522 (5th Cir. 2015)
(internal quotation marks omitted) (quoting Williamson v. Elf Aquitaine, Inc.,
138 F.3d 546, 549 (5th Cir. 1998)).
Turning to the first factor, we have no state law guidance, and our
federal analogue is not analogous. Applying the second factor, the answer to
this important question could either impose future liability on many Texas
14
Case: 17-41206 Document: 00514694256 Page: 15 Date Filed: 10/23/2018
No. 17-41206
businesses or preclude Texans from relying on an important anti-
discrimination statute. In a prior case addressing these two factors, we have
acknowledged that cases like this one—“where important state interests are
at stake and the state courts have not provided clear guidance on how to
proceed,” Louisiana v. Anpac La. Ins. Co. (In re Katrina Canal Breaches Litig.),
613 F.3d 504, 509 (5th Cir. 2010) (quoting Free v. Abbott Labs., 164 F.3d 270,
274 (5th Cir. 1999))—are candidates for certification.
With respect to the final factor, we perceive no hardship in certifying the
question. We can formulate discrete issues for consideration, and the Supreme
Court of Texas has been prompt in its responses. (Of course, it has the
discretion to decline certification if it disagrees with our analysis of these
factors.) When asked at oral argument, neither party presented any reasons
not to certify the relevant questions to the Supreme Court of Texas. We thus
conclude certification is prudent and appropriate in this case.
Accordingly, we certify the following questions to the Supreme Court of
Texas: 17
1. Is a plasma collection center like the one described in Section I of
this opinion a “public facility” under Texas Human Resources Code
§ 121.002(5)?
2. If so, would Texas law allow the plasma collection center to reject
a “person with a disability,” see TEX. HUM. RES. CODE § 121.002(4),
based on the center’s concerns for the individual’s health that stem
from the disability? What standard would apply to determining
whether the plasma collection center properly rejected the person,
rather than committed impermissible discrimination under Texas
Human Resources Code § 121.003(a)?
We disclaim any intention or desire that the Supreme Court of Texas confine
its reply to the precise form or scope of the questions certified.
17 The stipulated facts are set forth in the facts section above, and the style of the
case is at the beginning of this opinion.
15
Case: 17-41206 Document: 00514694256 Page: 16 Date Filed: 10/23/2018
No. 17-41206
IV. Conclusion
We AFFIRM the district court’s grant of summary judgment on
Silguero’s and Wolfe’s claims under the ADA. We CERTIFY to the Supreme
Court of Texas the questions identified above.
A True Copy
Certified Oct 23, 2018
Clerk, U.S. Court of Appeals, Fifth Circuit
16