United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT (ECF
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
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
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
Allegations. 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”).
the twenty-seven month period at issue in this action, Green
regularly used bus services provided by CMRTA as his primary
means of transportation. 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).
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. ¶
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.
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
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. Green had limited recollection of some
incidents. 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
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
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).
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.
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. 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.
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
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
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).
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.
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.
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.
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.
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.
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.
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. ¶ 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. ...