Hamer v. City of Trinidad
Opinion
Title II of the Americans with Disabilities Act ("ADA") mandates that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
Today we consider exactly when and how a public entity violates these two statutes. 1
*1097 The answer, in turn, affects how the applicable statutes of limitations operate. Does a public entity violate Title II and section 504 only when it initially constructs or creates a non-compliant service, program, or activity? If so, a single statute of limitations accrues from the day a qualified individual with a disability first discovers he or she has been injured by the service, program, or activity. The statute of limitations, in this scenario, would bar any lawsuit brought after the limitations period ends.
Or does a public entity violate Title II and section 504
repeatedly
until it affirmatively acts to remedy the non-compliant service, program, or activity? In that situation, a qualified individual's initial discovery that he or she has been injured does not trigger just one statute of limitations that bars any lawsuit brought after the limitations period ends. Rather, because the public entity commits a new violation (and the qualified individual experiences a new injury) each day that it fails to act, the statute of limitations effectively functions as a "look-back period,"
Burlington N. & Santa Fe Ry. Co. v. Grant
,
We hold that a public entity violates Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act each day that it fails to remedy a noncompliant service, program, or activity. As a result, the applicable statute of limitations does not operate in its usual capacity as a firm bar to an untimely lawsuit. Instead, it constrains a plaintiff's right to relief to injuries sustained during the limitations period counting backwards from the day he or she files the lawsuit and injuries sustained while the lawsuit is pending. Because the district court applied a different and incorrect standard, we reverse and remand for further proceedings.
I.
Plaintiff Stephen Hamer resides in Trinidad, Colorado; is confined to a motorized wheelchair due to what he characterizes as "severe bilateral ankle problems"; and, for purposes of this appeal, is a qualified individual with a disability under Title II of the ADA and section 504 of the RA. He does not own a car or otherwise use public transportation. Instead, he primarily utilizes the City of Trinidad's public sidewalks to move about in his wheelchair.
Plaintiff contends many of the City's sidewalks and the curb cuts allowing access onto those sidewalks do not comply with Title II of the ADA and section 504 of the RA. Indeed, at a City Council meeting he attended in April 2014, Plaintiff informed City officials that he had personally counted seventy-nine non-compliant sidewalks and curb cuts throughout the city. Further, at the end of that same month, Plaintiff filed an ADA complaint with the United States Department of Justice ("DOJ") informing the government about the state of the City's sidewalks and curb cuts.
Plaintiff continued to lodge informal ADA and RA complaints at City Council meetings over the next few months. And at some point after he lodged his ADA complaint with the DOJ, the DOJ audited the City and discovered multiple noncompliant sidewalks and curb ramps. Apparently in response to Plaintiff's multiple complaints *1098 and the results of the DOJ's audit, City officials actively began repairing and amassing funding to further repair non-compliant sidewalks and curb cuts.
Even so, Plaintiff nonetheless filed the present lawsuit against the City on October 12, 2016, for violations of Title II of the ADA and section 504 of the RA. Like the complaint he filed with the DOJ, Plaintiff complains of the City's allegedly deficient sidewalks and curb cuts. He thus seeks a declaratory judgment that the City's sidewalks and curb cuts violate the ADA and RA, injunctive relief requiring City officials to remedy the City's non-compliant sidewalks and curb cuts, monetary damages, attorneys' fees, and costs.
The district court granted summary judgment to the City on statute-of-limitations grounds. The district court first observed that because neither Title II nor section 504 explicitly provided for a statute of limitations, Colorado's general two-year statute of limitations governed Plaintiff's claims.
See
E.E.O.C. v. W.H. Braum, Inc.
,
The district court determined, however, that Plaintiff's claims most likely accrued in April 2014 when Plaintiff first raised his concerns about the City's sidewalks and curb cuts at the City Council meeting and with the DOJ. In any event, the district court also determined that Plaintiff's claims must have begun to accrue "at the very latest[ ] in August 2014" when he raised his concerns at a City Council meeting for the final time. At one of these two points-either April or August 2014-Plaintiff was undoubtedly "aware of the nature and extent of the City's discrimination." Thus, because both of these dates occurred before October 12, 2014, the district court held that the two-year statute of limitations barred Plaintiff's Title II and section 504 claims.
The district court explicitly rejected Plaintiff's argument that the continuing violation doctrine could salvage his claims from being untimely. This doctrine applies " 'when the plaintiff's claim seeks redress for injuries resulting from a series of separate acts that collectively constitute one unlawful act,' as opposed to 'conduct that is a discrete unlawful act.' "
Sierra Club v. Okla. Gas & Elec. Co.
,
An important caveat to the continuing violation doctrine, however, is that it "is triggered 'by continual unlawful acts, not by continual ill effects from the original violation.' "
Mata v. Anderson
,
The district court also denied Plaintiff's additional argument that, regardless of whether the continuing violation doctrine applied, his claims remained timely because the City "violate[d] both statutes each day" that it failed to remedy its non-compliant sidewalks and curb cuts. In Plaintiff's opinion, such repeated violations meant that he suffered injuries each day he was unable to access the sidewalks and curb cuts until the day he filed suit. Under this theory, the two-year statute of limitations did not bar Plaintiff's suit completely. Instead, he could obtain relief for injuries he suffered after October 12, 2014, but not for any injuries he suffered before that day.
The district court rejected Plaintiff's argument, concluding that "it [was] insufficient to rely solely on the continued inaccessibility of the City's sidewalks and curb cuts" for Plaintiff to show he suffered an injury or injuries after October 12, 2014. Indeed, the district court again characterized the continued inaccessibility as "continued ill effects" of Plaintiff's original encounters or discoveries of the City's alleged discrimination. The district court therefore reaffirmed its belief that Plaintiff needed to point to " discrete acts of discrimination he encountered since October 12, 2014," to survive summary judgment. And because Plaintiff had not directed the district court to any evidence suggesting that he encountered or discovered any new, non-compliant sidewalks and curb cuts after October 12, 2014, the district court stood firm in its conclusion that Plaintiff's Title II and section 504 claims were untimely.
Plaintiff now appeals the district court's ruling that Colorado's two-year statute of limitations bars his Title II and section 504 claims.
2
Our jurisdiction arises under
II.
Before launching into our analysis, we first take a moment to explain in more *1100 detail the difference between the two arguments Plaintiff made in the district court and how that difference affects our ultimate disposition of his appeal.
As discussed above, the "continuing violation" doctrine-Plaintiff's first argument to the district court-tethers conduct from both inside and outside the limitations period into one single violation that, taken as a whole, satisfies the applicable statute of limitations.
3
Sierra Club
,
This figure "illustrates how [the continuing violation doctrine] combines otherwise discrete occurrences A through E, of which only D and E occurred within the limitations period, into a single, timely claim A." Kyle Graham,
The Continuing Violations Doctrine
,
By contrast, we have referred to the second argument Plaintiff made to the district court as the "repeated violations" doctrine.
4
Sierra Club
,
*1101
Provident Mut. Life Ins. Co. of Phila. v. City of Atlanta
,
Notably, although Plaintiff argued in the district court that both the continuing violation doctrine and the repeated violations doctrine could make timely his claims under Title II of the ADA and section 504 of the RA, on appeal he argues only for application of the repeated violations doctrine. 5 Indeed, in his Opening Brief, Plaintiff argues that
[e]ach time [he] was denied access to [the sidewalks and curb cuts], the City of Trinidad committed discrimination within the meaning of the ADA/§ 504 and a claim for damages arose under the statute. [Plaintiff] experienced recurrent discrimination by the City of Trinidad both inside and outside of the statute of limitations period. Accordingly, [Plaintiff] had some claims that are timely and some that are time barred .
Pl.'s Opening Br. 7 (emphases added). This language is a clear reference to the repeated violations doctrine.
Although Plaintiff abandons the continuing violation doctrine on appeal, the City continues to view the case in that context. In the City's view, the Supreme Court's analysis of the continuing violation doctrine in
National Railroad Passenger Corp. v. Morgan
,
The City argues that Morgan precludes us from applying the continuing violation doctrine to Plaintiff's Title II and section 504 claims because the City subjected him to only "discrete acts of discrimination" that "did not require proof" of the cumulative effect of individual acts. Def.'s Resp. Br. 11. Although that argument is correct, it misses the mark insofar as it assails an argument Plaintiff does not make on appeal. Contrary to the way the City frames the issue, Plaintiff does not contend that he should be able to aggregate separate acts into one single, comprehensive violation. Instead, he argues that he may recover for injuries he suffered inside of the limitations period but not for injuries he suffered outside of the limitations period-that is, he is arguing for application of the repeated violations doctrine. Morgan , therefore, is inapposite to this appeal because it did not involve the repeated violations doctrine. Indeed, the language of that case-e.g., that hostile work environments are made up of "component acts" and "are based on the cumulative effect of individual acts"-makes it clear it was immediately concerned with interpreting and applying the continuing violation doctrine.
The City further relies on our unpublished decision in
Rhodes v. Langston University
,
Finally, the City directs us to
Foster v. Morris
,
Because none of the cases the City cites resolve whether the repeated violations doctrine applies to Plaintiff's claims under Title II and section 504, we turn to the statutory text to decide this matter of first impression in our circuit.
III.
We hold that the repeated violations doctrine applies to claims under Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act of 1973. As we explain below, a public entity repeatedly violates those two statutes each day that it fails to remedy a non-compliant service, program, or activity. Accordingly, a qualified individual with a disability is excluded from the participation in, denied the benefits of, and subjected to discrimination under the service, program, or activity each day that she is deterred from utilizing it due to its non-compliance. She stops suffering a daily injury only when the public entity remedies the non-compliant service, program, or activity or when she no longer evinces an intent to utilize it. The practical effect is that, once the individual sues under Title II or section 504, the statute of limitations bars recovery only for those injuries she incurred outside of the limitations period immediately preceding the day of suit; it does not, however, bar recovery for injuries she incurred within that limitations period or after she files suit.
A.
Our starting point is the plain language of Title II and section 504.
See
Levorsen v. Octapharma Plasma, Inc.
,
Consider first the specific language. Title II mandates that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
Obviously, neither of these statutes state outright when or how often a public entity violates them. They simply command that no qualified individual may "be excluded" from, "be denied" the benefits of, or "be subjected" to discrimination under a service, program, or activity. With that said, that language is phrased in the present tense (albeit in the passive voice), which suggests that a qualified individual who
currently
experiences discrimination under Title II or section 504 suffers an injury. And so the same language also suggests that a qualified individual suffers new discrimination and a new injury
each day
that she cannot utilize a non-compliant service, program, or activity-even if the barriers giving rise to her claim were ones she encountered before. After all, if sidewalks and curb cuts actually do constitute a service, program, or activity of a public entity-a question that we express no opinion on today-a qualified individual with a disability would still "be excluded" from utilizing any given sidewalk or curb cut each day that it remained noncompliant.
7
Likewise, that same individual would still "be denied" the benefits of that sidewalk or curb cut when she encountered it a day ago just as much as when she first encountered it a year ago.
Cf.
Pickern v. Holiday Quality Foods Inc.
,
To the extent any real or perceived gaps remain in the statutory text, the Supreme Court's Title II jurisprudence fills them. In
Tennessee v. Lane
,
This "duty to accommodate,"
*1106
The broader statutory context of the ADA and RA bolsters this conclusion. Consider, for example,
Congress's goals of full participation, inclusion, and integration for qualified individuals with disabilities are consistent with and suggestive of the repeated violations doctrine. A qualified individual is not a full participant or fully included in a service, program, or activity if she cannot utilize it in a similar way as persons without disabilities, and that does not change simply because she was deterred from utilizing the service, program, or activity many times before. What matters is whether the individual can fully participate now in the service, program, or activity. The repeated violations doctrine, in turn, accounts for that reality-and, for that matter, encourages public entities to comply with their affirmative and ongoing obligations to accommodate-by giving a qualified individual an avenue for relief any moment that he or she cannot fully participate or is not fully included in a service, program, or activity.
Congress further observed in enacting the ADA that "the
continuing existence
of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous ...."
The statutory text and the Supreme Court's pronouncements make one thing clear: Congress did not design the ADA or the RA so that a public entity could forever prevent a qualified individual with a disability from utilizing a service, program, or activity. Yet the City argues for that exact result. The City contends that because Plaintiff filed suit more than two years after he first encountered the allegedly non-compliant sidewalks and curb cuts, the statute of limitations forever bars him from forcing the City to live up to its affirmative duty and correct those barriers. That proposition simply cannot fit within the language, structure, and purpose of the ADA or the RA.
In conclusion, based on the plain language of Title II of the ADA and section 504 of the RA, Supreme Court jurisprudence interpreting Title II, and Congress's express statutory purposes in enacting the ADA and RA, we hold that Title II and section 504 clearly and unambiguously require us to acknowledge they are subject to the repeated violations doctrine.
12
Accordingly, each time a qualified individual with a disability encounters or "actually become[s] aware of" a non-compliant service, program, or activity "and is thereby deterred" from utilizing that service, program, or activity, he or she suffers discrimination and a cognizable injury.
Pickern
,
B.
The City of Trinidad and the Colorado Municipal League ("the League") as amicus curiae both claim that our ruling today will effectively "nullify the statute of limitations." Def.'s Resp. Br. 24.
Not so for several reasons. For starters, both the City and the League
*1108
conflate the repeated violations doctrine and continuing violation doctrine-or at least conflate which of the two Plaintiff is arguing for on appeal-which likely has contributed to that belief.
See
supra
. But setting that point aside, we "will look beyond the plain language of a statute
only
if the result is an absurd application of the law."
Brown
,
What's more, Title II and section 504 plaintiffs are able to recover damages only in the unusual case. Our circuit requires proof of intentional discrimination before a plaintiff can recover compensatory damages under section 504,
Havens v. Colo. Dep't of Corr.
,
We agree with the City and the League, though, that the repeated violations doctrine will manifest itself by keeping public entities on the hook for injunctive relief as the years go by. After all, if a court grants an injunction requiring a public entity to remedy a program, service, or activity, we have a difficult time seeing just how the court or public entity could divvy that injunction up in a way that limits it to injuries the plaintiff incurred within the limitations period.
See
Holmberg v. Ambrecht
,
But the availability of injunctive relief itself does not raise any red flags. As we described above, when Congress outlined its purposes and goals in enacting the ADA and RA, it expressly noted that it sought full participation, inclusion, and integration in society for individuals with disabilities. By remaining on the hook for injunctive relief-as its affirmative obligation to accommodate requires-a public entity is incentivized to remedy non-compliant services, programs, or activities in a reasonable yet efficient manner to ensure that full participation. And along those same lines, Plaintiff makes an excellent point: "public entities ... have the ultimate option to avoid liability" by "simply mak[ing] their programs, services, and activities accessible for persons with disabilities." Pl.'s Opening Br. 30;
see also
Frame v. City of Arlington
,
Further, as far as injunctive relief is concerned, we note that a qualified individual with a disability no longer suffers an injury once he stops "assert[ing] an intent to return to the particular place (or places) where the violations are alleged to be occurring."
Scherr
,
As a final note, we are not unsympathetic to the City's and the League's arguments that public entities are constrained by limited budgets that do not easily lend themselves to the constant ability to remedy ADA and RA issues.
15
But again, liability for monetary damages is infrequent, which significantly softens the impact of our ruling today.
See
supra
. And if a public entity truly is not liable, or if that entity has already taken significant steps to remedy or can establish that it has multi-year plans in place to remedy a non-compliant service, program, or activity-as the City has apparently done in this case-a factfinder will be able to ferret that out when deciding the merits of any given case.
See, e.g.
,
Rife v. Okla. Dep't of Pub. Safety
,
Thus, the City's and the League's concerns are unsubstantiated.
IV.
The district court did not recognize the impact of the repeated violations doctrine on Plaintiff's claims under Title II of the ADA and section 504 of the RA. Instead, it concluded that Plaintiff could not "rely solely on the continued inaccessibility of the City's sidewalks and curb cuts" to survive dismissal under Colorado's two-year statute of limitations.
This was error. Because the district court applied an incorrect standard, it could not determine under the proper framework how the two-year statute of limitations affected Plaintiff's claims. As a court of review, we will not decide that inquiry for the first time on appeal.
Pignanelli v. Pueblo Sch. Dist. No. 60
,
For the reasons set forth above, we REVERSE and REMAND for further proceedings consistent with this opinion.
Unless we say otherwise, when we use the term "public entity," we are referring to both public entities under Title II and programs or activities that receive federal financial assistance under section 504.
Neither party disputes that the applicable limitations period is two years in length or that it derives from section 13-80-102 of the Colorado Revised Statutes. We thus assume the same for purposes of this appeal.
Unlike the typical custom in our circuit, other courts and scholars have sometimes added a word and referred to this doctrine as the "pure" continuing violation doctrine.
See, e.g.
,
White v. Mercury Marine, Div. of Brunswick, Inc.
,
Other courts and scholars have sometimes referred to this doctrine as the "modified" continuing violation doctrine.
See, e.g.
,
White
,
Plaintiff, in other words, abandoned his continuing violations argument on appeal. We thus do not consider it.
See
United States v. Yelloweagle
,
Although neither party cites it, we also note that the Fifth Circuit's decision in
Frame v. City of Arlington
,
We assume only for the purposes of this appeal that sidewalks and curb cuts constitute a service, program, or activity.
As Plaintiff points out, numerous regulations implementing the ADA reflect this principle.
See, e.g.
,
In addition to the fact that we analyze Title II and section 504 claims together,
Miller ex rel. S.M.
,
The City notes and relies on the Fourth Circuit's opinion in
A Society Without A Name v. Virginia
,
At this point, we believe that an analogy to temporary nuisance claims-one of the "touchstone" instances of the repeated violations doctrine at work, Graham,
supra
, at 308-can further illustrate our rationale. A temporary nuisance exists "[w]here the injury from the alleged nuisance ... is of a continuing or recurring character." 58 Am. Jur. 2d
Nuisances
§ 221 (2018). "In such a case, every day's continuance is a new nuisance,"
id.
, that "gives rise over and over to new causes of action,"
Grant
,
So too here. Each time a qualified individual with a disability is excluded from, denied the benefits of, or subjected to discrimination under a service, program, or activity, he suffers an injury under Title II and section 504. For the reasons we explained above, this injury is not a one-time event; rather, it repeatedly occurs so long as the service, program, or activity remains non-compliant and the qualified individual is aware of that and deterred from utilizing it. So when a Title II or section 504 plaintiff brings suit, he is essentially doing so on the first day of a new limitations period.
Because Title II and section 504 are unambiguous in this regard, we have no reason to consider "the underlying public policy" of either statute.
United States v. Manning
,
Theoretically, the statute of limitations could still function as a complete bar to an untimely lawsuit even when the repeated violations doctrine applies. Suppose, for instance, a plaintiff was first deterred from utilizing a service, program, or activity in 2009 and tries to bring a lawsuit in 2019 for violations of Title II and section 504 against the public entity responsible. But also suppose the plaintiff concedes that in 2016 the public entity completely and entirely remedied the noncompliant service, program, or activity. Assuming a two-year statute of limitations applies, it would entirely bar the plaintiff's claims even though the repeated violations doctrine also applies to his claims. Indeed, the public entity's last possible repeated violation (and the plaintiff's last possible injury) would have occurred in 2016 before the remedy went into place, which means that the statute of limitations would have run at some point in 2018. Accordingly, the 2019 lawsuit would be untimely because the plaintiff could not point to a violation or injury that occurred in the two years prior to the day he files suit.
We mention this scenario only to illustrate that it is possible. Our immediate concern, however, is with cases where the public entity has not remedied the noncompliant service, program, or activity. In such instances, the public entity is still committing violations, and the qualified individual with a disability is still suffering injuries.
The continuing violation doctrine
would
allow for such a recovery.
See
Morgan
,
The City contends that adopting the repeated violations doctrine will cause this inability to remedy ADA and RA issues, but it is mistaken. Even without the repeated violations doctrine, qualified individuals with disabilities who have encountered the City's non-compliant services, programs, or activities within the past two years could just as easily bring lawsuits against the City. So the danger about which the City complains exists even under their own interpretation of the law.
In issuing these instructions on remand, we emphasize once again that we take no stance on the question whether sidewalks and curb cuts qualify as a service, program, or activity of a public entity. We also issue these instructions cognizant of the fact that the district court assumed -much like we did-that sidewalks and curb cuts qualify as a service, program, or activity of a public entity so that it could reach the "narrower" and "dispositive" statute of limitations question. For those reasons, the district court may now find it necessary to definitively decide on remand whether sidewalks and curb cuts qualify as a service, program, or activity of a public entity, and it should not read anything in this opinion as preventing it from doing so.
Reference
- Full Case Name
- Stephen HAMER, Plaintiff - Appellant, v. CITY OF TRINIDAD, Defendant - Appellee. Colorado Municipal League, Amicus Curiae.
- Cited By
- 64 cases
- Status
- Published