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Green v. Central Midlands Regional Transit Authority

United States District Court, D. South Carolina, Columbia Division

April 22, 2019

ARTHUR GREEN, Plaintiff,



         Through this action, Arthur Green (“Green”) seeks recovery from the Central Midlands Regional Transit Authority, d/b/a The Comet (“CMRTA”) for alleged discrimination in violation of the Americans with Disabilities Act of 1990, 49 U.S.C. § 12111 et seq. (“ADA”). Green alleges CMRTA violated Title II of the ADA, 49 U.S.C. § 12131 et seq. (“Title II”), which prohibits discrimination in the provision of public services, by failing to provide non-discriminatory service on buses operated by or on behalf of CMRTA.[1]


         Summary judgment should be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). It is well established that summary judgment should be granted “only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).


         Allegations.[2] Green is a paraplegic confined to a wheelchair. ECF No. 1 (Complaint) ¶¶ 2, 9. For purposes of its summary judgment motion, CMRTA does not dispute Green is a qualified individual with a disability as required to establish the first element of a Title II claim. See infra Discussion § I (“Elements of Title II Claim”).

         During the twenty-seven month period at issue in this action, Green regularly used bus services provided by CMRTA as his primary means of transportation.[3] He was generally accompanied by his wife (“Mrs. Green”). Id. ¶ 11. On multiple occasions during this period, Green alleges he encountered difficulties utilizing CMRTA's bus services. See Complaint ¶¶ 12-39. The difficulties fall into three categories: (1) roughly twenty-seven instances in which the wheelchair lift or related mechanisms malfunctioned (id. ¶¶ 12-18, 22-31, 36, 37); (2) four instances in which a driver did not properly secure Green's wheelchair, at least initially (id. ¶¶ 32, 33, 36, 39); and (3) roughly nine instances in which a driver was discourteous or treated Green less favorably than other passengers (id. ¶¶ 17, 19-21, 34-36, 38).

         Lift Malfunction Allegations. The alleged difficulties with the wheelchair lift and related mechanisms fall into two subcategories: (1) instances in which the malfunction precluded Green from boarding; and (2) instances in which the malfunction occurred while Green was boarding or attempting to disembark. The first subcategory resulted in denial of service on the bus with the malfunctioning lift, requiring Green to wait for another bus or relocate to another bus stop in order to obtain service. Id. ¶¶ 12, 13, 15, 17, 27, 28, 30, 31, 36, 37; see also Id. ¶ 16.[4] Green alleges that on one occasion in August 2016, four buses in a row had inoperable wheelchair lifts. Id. ¶ 27. Green's other allegations involve a single bus with a malfunctioning lift, though he alleges two series of incidents in May and June 2015, when he encountered similar problems over succesive days. Id. ¶¶ 12, 13, 15, 16.

         The second subcategory caused Green to suffer inconvenience and delay and, in some cases, fear and anxiety. Id. ¶¶ 14, 18, 23-26. In one instance, Green alleges he was stranded on the lift in the air for nearly two hours, causing him to suffer substantial fear and anxiety. Id. ¶ 14. In another instance, he alleges he was stuck on the bus for an hour after other passengers disembarked. Id. ¶ 26. Other instances involved shorter delays. E.g., id. ¶ 18 (alleging delay of a few minutes while driver lowered the lift manually); id. ¶ 23 (alleging he suffered momentary fear when a lift lowered unexpectedly before driver stopped it).

         Green Deposition. During his deposition, Green was questioned about the various instances in which he encountered difficulties due to lift malfunctions. E.g. Green dep. at 18-25, 28, 35, 38, 41-49.[5] Green had limited recollection of some incidents.[6] While the Complaint alleges and Green testified Mrs. Green took notes and sent texts or otherwise communicated complaints to CMRTA regarding many of the incidents, he has not proffered a prediction of admissible evidence regarding Mrs. Green's observations or complaints. See Complaint ¶ 11; Green dep. at 24, 25.[7]

         Addressing the first incident in which a malfunction prevented him from boarding, Green testified the driver apologized for the inconvenience and called his supervisor who agreed to send other transportation. Green dep. at 18-22, 24 (stating, in addressing Complaint ¶ 12, that driver “felt real bad”). Rather than waiting on alternate transportation, Green elected to use his motorized wheelchair to travel five blocks to another bus stop. Id. at 20, 21 (stating he does not recall how long it took to travel the five blocks).[8]

         Green did not recall the precise wait time for the next bus when the malfunction on one bus required him to wait for another. See infra Discussion § II.A. (addressing, inter alia, 49 C.F.R. § 37.163(f), which requires alternate service be provided if the next bus is not scheduled to arrive within thirty minutes). At one point, he testified the next bus usually came within thirty to forty minutes. Green dep. at 38. At several other points, he testified either that the next bus generally arrived within thirty minutes or after a short wait. Id. at 60 (stating buses generally came “[w]ithin a half an hour”); id. at 69 (stating, in addressing allegation he was “stranded for an unacceptable length of time, ” that he caught another bus in “about half an hour”); id. at 52-56 (stating he was able to take a different bus after a short wait by moving to a different stop less than two blocks away); see also ECF No. 47 at 13 (chart summarizing Green's testimony regarding wait times for the next bus or alternate service).

         Green testified to one instance in which he waited more than thirty minutes for alternate transportation after encountering a bus with a malfunctioning lift. Green dep. at 111 (addressing Complaint ¶ 27). This is the incident in which Green encountered four buses in a row with lift problems. Id. Green testified he had to wait forty-five minutes before he was able to board a bus with a functioning lift. Id. He also testified a supervisor “stayed through the whole time” and tried to fix the problem on each of the buses with malfunctioning lifts. Id. at 110.

         As to instances when a lift malfunctioned while he was boarding or when he tried to disembark, Green testified the problems required action by the driver, a supervisor, a mechanic, or a combination of personnel.[9] The most extreme delay in resolving such a malfunction occurred on May 30, 2015, and left Plaintiff stranded on the lift for nearly two hours. Green dep. at 41-49 (addressing Complaint ¶ 14). Both a supervisor and maintenance worker were called and attempted to resolve the problem. Id. at 43, 45. When the supervisor and mechanic could not fix the lift, they used a lift on a truck to remove Green from the bus. Id. at 45. Green was afraid he would fall during the time he was on the lift and believes the experience caused him to have elevated blood pressure when he visited his doctor the following day. Id. at 43, 45, 49.

         In one other instance, Green testified he was stranded on the bus (not the lift) for one hour after other passengers disembarked. Id. at 105 (addressing Complaint ¶ 26). A mechanic was called to resolve this problem after the driver and supervisor were unable to do so. Id. One other instance left Green stuck on a lift for fifteen minutes and was resolved by a supervisor using the manual function to deploy the lift (“Manual Function”). Id. at 96-99 (addressing Complaint ¶ 24). In other instances, lift problems either involved momentary slipping or malfunctions were resolved in a short time by the driver. E.g., id. at 70-72 (addressing Complaint ¶ 18); id. at 92-96 (addressing Complaint ¶ 23).

         As to each incident involving a lift malfunction, Green testified he was not aware whether the lift was repaired or the bus was taken out of service before the following business day. See, e.g., ECF No. 47 at 9-11 (chart summarizing Green's testimony); see also infra Discussion § II.A. (addressing regulations relating to actions required after a malfunction). Green proffers no other evidence regarding how lifts were maintained and whether CMRTA complied with related regulations.[10]

         The last alleged incident involving a lift malfunction occurred on March 30, 2017, six months before this action was filed. Complaint ¶ 37. On January 17, 2019, Green testified he no longer encounters difficulties boarding or disembarking buses because of a change in the buses. Green dep. at 181-82 (testifying new buses are a “whole lot better”). CMRTA also proffered evidence the problems were resolved by replacing the buses with buses that use a different type of lift. ECF No. 46-9 at 10 (Nicholson dep. at 22).

         Failure to Properly Secure Wheelchair Allegations. The Complaint alleges four instances in which Green's wheelchair was not properly secured or a driver acted discourteously in the process of securing the wheelchair. Complaint ¶¶ 32, 33, 36, 39. The first incident allegedly occurred on September 23, 2016, and involved a driver securing only two of four straps. Complaint ¶ 32. Green alleges he drew the error to the attention of a supervisor who attached the remaining straps. Id. The next incident allegedly occurred on September 30, 2016, and again involved a driver attaching only two of four straps. Id. ¶ 33 (alleging driver refused to secure additional straps after Green drew the error to his attention). While these alleged incidents may have been addressed in Green's deposition, neither side proffers deposition pages addressing them.[11]

         The third incident allegedly occurred on March 15, 2017. Id. ¶ 36. Rather than alleging a failure to attach all four straps, Green alleges the straps came loose when the driver slammed on brakes. Id. Instead of checking the straps, the driver said they would not tighten and took no further action. Id. In his deposition, Green testified he believed the straps came loose because his chair moved. Green dep. at 157-60.

         As to the fourth incident, Green alleges the driver acted “very rudely” when Green and his wife tried to politely assist her. Complaint ¶ 39 (addressing incident on August 30, 2017). He does not allege the straps were not properly secured. Neither side proffers deposition testimony relating to this incident.[12]

         Discourteous Behavior, Allegations and Evidence. The Complaint identifies nine instances in which a bus driver allegedly treated Green or his wife discourteously. Complaint ¶¶ 17, 19-21, 34, 35, 38. Five of these instances allegedly resulted in a denial of service. Id. ¶¶ 17, 19, 20, 21, 34.

         The first incident allegedly occurred on July 10, 2015, and involved a bus driver stating the bus was full, even though it appeared to Green that no disabled or elderly individuals were seated in the areas reserved for a wheelchair. Id. ¶ 17. Green testified there were lots of people in the bus but the passengers in the wheelchair seats did not appear to be elderly or handicapped. Green dep. at 63, 64. As to this incident, Green testified the driver could have asked someone to move “[b]ut evidently, he didn't” do so. Id.[13]

         The second alleged incident occurred on March 30, 2016, when the driver rolled past the proper pick up point, preventing the lift from opening properly, and refused to back up, stating she could not do so and Green would have to wait for the next bus. Complaint ¶ 19. As to the next four incidents, Green alleges the following: (1) Green was denied service on the same bus and on the same route the next day (following March 30, 2016); (2) Green was denied service after his wife and a driver had a dispute over whether the Greens were at the proper stop; (3) a bus driver boarded after non-disabled passengers boarded, looked at Green, then drove off without allowing Green to board; and (4) a driver allowed other passengers to board or disembark before Green three times in the same day (February 22, 2017). Id. ¶¶ 20, 21, 34, 35.

         In his last allegation of discourteous behavior, Green alleges that, on April 10, 2017, a driver required him to wait while five or six other passengers boarded first. Id. ΒΆ 38 (alleging it was the third instance of mistreatment by the same driver). In his deposition, Green testified he asked the driver why she did this and she said she wanted to let the others board first. ...

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