Jabari Wright v. RL Liquor , 887 F.3d 361 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1133
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Jabari Wright
lllllllllllllllllllll Plaintiff - Appellant
v.
RL Liquor
lllllllllllllllllllll Defendant - Appellee
Ruth L. Dailey; R2, D2, Inc., also known as R2D2, also known as RL2
lllllllllllllllllllll Defendants
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 14, 2017
Filed: April 4, 2018
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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BENTON, Circuit Judge
From 2013 to 2016, Jabari N. Wright visited the RL Liquor store several times.
Wright, paralyzed from the waist down and confined to a wheelchair, encountered
barriers at the store: the parking lot had no van-accessible parking spots or signs, the
entryway threshold’s slope was not ADA-compliant, and the counter’s height was
higher than the ADA standard. Wright sued RL Liquor, Ruth L. Dailey, and R2, D2,
Inc. (RL Liquor) for violating Title III of the Americans with Disabilities Act (ADA).
After receiving the complaint, RL Liquor designated accessible parking and posted
signs offering assistance, but did not change the threshold or counter top. After a
bench trial, the district court1 dismissed as moot the claims about the parking-lot
barriers. On the remaining claims, the court ruled that Wright failed to meet his
burden to prove a readily achievable barrier removal method. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
I.
Wright believes the district court erred in dismissing as moot the parking-lot
claims. This court reviews de novo whether claims are moot. Keup v. Hopkins, 596
F.3d 899, 904 (8th Cir. 2010).
Wright emphasizes that the voluntary cessation of an illegal practice does not
make a case moot, citing Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173,
1183-84 (11th Cir. 2007). There, the defendant’s policy prohibited guide dogs in the
facility. Id. at 1180. After plaintiff sued, the defendant revoked the policy; the
district court ruled the case moot. Id. at 1181-82. Reversing the district court, the
Eleventh Circuit relied on the Supreme Court’s rule: “A defendant’s voluntary
cessation of a challenged practice” moots a case only if it is “absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 169-70 (2000).
1
The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska.
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Applying this standard, the district court here found that the parking-lot violations
cannot reasonably be expected to recur.
The voluntary-cessation doctrine does not apply when “defendants’ compliance
with the ADA . . . is far ‘more than a mere voluntary cessation of alleged illegal
conduct, where we would leave [t]he defendant [s] . . . free to return to [their] old
ways.’” Hickman v. State of Mo., 144 F.3d 1141, 1143-44 (8th Cir. 1998), quoting
Preiser v. Newkirk, 422 U.S. 395, 402 (1975). In Hickman, the defendant made
structural changes to remove barriers. Id. at 1144. Here, after RL Liquor became
aware of the lack of van-accessible parking, the store placed a handicap parking sign
and painted a van-accessible parking spot. Unlike Sheely, where the defendant could
capriciously reinstate its no-dogs policy, the sign and spot here are “far ‘more than
a mere voluntary cessation’” that leaves the defendant free to return to its wrongful
behavior. See id. The district court did not err in dismissing as moot the parking-lot
claims.
II.
Places of public accommodation shall not discriminate against people with
disabilities. § 42 U.S.C. 12182(a). Discrimination includes “failure to remove
architectural barriers . . . in existing facilities . . . where such removal is readily
achievable.” § 12182(b)(2)(A)(iv). Removal is readily achievable if it is “easily
accomplishable and able to be carried out without much difficulty or expense.” §
12181(9). In determining whether removal is readily achievable, courts consider: (1)
nature and cost of the action; (2) overall financial resources of the facility involved;
(3) number of persons employed at the facility; (4) effect on expenses and resources;
(5) impact of the action on the facility’s operation; (6) overall financial resources of
the covered entity; (7) overall size of the business of a covered entity in terms of the
number of its employees; (8) the number, type, and location of the facilities; (9) type
of operation of the covered entity, including composition, structure, and functions of
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the workforce; and (10) geographic separateness, administrative or fiscal relationship
of the facility to the covered entity. § 12181(9)(A)-(D).
The ADA does not state whether the plaintiff or the defendant has the initial
burden of production that removal is readily achievable. The district court relied on
the Tenth Circuit’s framework: “Plaintiff must initially present evidence tending to
show that the suggested method of barrier removal is readily achievable under the
particular circumstances. If Plaintiff does so, Defendant then bears the ultimate
burden of persuasion that barrier removal is not readily achievable under subsection
(iv) [of § 12182(b)(2)(A)].” Colorado Cross Disability Coal. v. Hermanson Family
Ltd., 264 F.3d 999, 1002-03 (10th Cir. 2001). Other circuits, though somewhat
modifying the Tenth Circuit’s framework, also place the initial burden on the
plaintiff. See, e.g., Roberts v. Royal Atl. Corp., 542 F.3d 363, 373 (2d Cir. 2008)
(“When evaluating a claim under [§ 12182(b)(2)(A)(iv)], we require a plaintiff to
articulate a plausible proposal for barrier removal, ‘the costs of which, facially, do not
clearly exceed its benefits’”); Gathright-Dietrich v. Atlanta Landmarks, Inc., 452
F.3d 1269, 1274 (11th Cir. 2006) (holding the district court properly placed the initial
burden on the plaintiff and adopting the burden shifting framework of Colorado
Cross). But see Molski v. Foley Estates Vineyard and Winery, LLC, 531 F.3d 1043,
1048 (9th Cir. 2008) (allocating the burden of production to the defendant in cases
arising under 28 C.F.R. § 36.405–alterations to historic buildings); cf. Vogel v. Rite
Aid Corp., 992 F. Supp. 2d 998, 1011 n. 35 (C.D. Cal. 2014) (limiting Molski to
historic buildings).
Wright argues that the district court erred by placing the initial burden of
production on him instead of RL Liquors. Following the Tenth, Second, and
Eleventh Circuits, this court holds that the district court properly required Wright to
initially present evidence tending to show that the suggested method of barrier
removal was readily achievable under the circumstances. See Colorado Cross, 264
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F.3d at 1002-03; Roberts, 542 F.3d at 373 & n. 6; Gathright-Dietrich, 452 F.3d at
1274.
Wright objects to the amount and specificity of evidence required to meet his
initial burden. He, however, failed to offer a plausible proposal for barrier removal.
See Roberts, 542 F.3d at 373 & n. 6. As the district court found, “Wright presented
no suggested modifications of his own and no expert testimony to counter Fleming’s
expert opinion that modifications were not readily achievable.” The district court did
not clearly err in making these findings. The district court concluded that Wright did
not present evidence for “a reasoned evaluation of the factors relevant to the ‘readily
achievable’ determination,” or satisfy even a “light burden” of production. On the
record here, the district court reached the right conclusion.2
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The judgment is affirmed.
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2
After trial, the district court noted that even if Wright met his burden of
production, the court would rule for defendants because they proved that any
proposed modifications are not readily achievable, specifically that removal of any
entry barriers would create a hazard for customers and that the present
accommodations enabled Wright to conduct business at the store.
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