I hope everyone is having a happy holiday season. In Atlanta, we got a few inches of snow. So, my daughter was outside playing in the snow and having snowball fights with her friends. She even got in a couple of snowballs thrown at me. The nice thing about it being in Atlanta was that the snow has all melted, and unlike Chicago, our native city, we never have to worry about shoveling it. We are also fortunate with the timing of the snowstorm happening on a Friday and there being a gap in the weather when the snow came through so that people were not stranded.
Turning to the blog, I am hoping that I have now gotten by the absolutely crazy computer issues I have been dealing with. This will be the second to last blog entry of the year with the next one being the top 10+1 or two. As mentioned previously, about that, every year I put up a top 10+1 or two blog entries for the year as determined by your views over that year. It is always a top 10 and depending upon how close the top 10 are to each other may be slightly more. Then, no matter what, I always keep in the ADA audit: higher education version blog entry as I think that is a critical blog entry for those working with or in the college and University communities.
Turning to today’s blog entry, it builds on a previous blog entry discussing just what is the statute of limitations in ADA cases. That blog entry, which can be found here, has consistently been one of my more popular blog entries over the years. However, what that blog entry doesn’t address is when does the statute of limitations BEGIN to run.
The case of the day is Hamer v. City of Trinidad. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.
Hamer is a resident of the City of Trinidad Colorado and is confined to a motorized wheelchair. As a result, he does not drive or utilize public transportation, rather his primary means of public transportation are the city’s public sidewalks. The city has approximately 154 miles of sidewalks and 1300 curb cuts. In April 2014, he attended a city council meeting where he complained about ADA accessibility throughout the city, and over the next six months, he levied multiple informal grievances at city council meetings. At the time of the decision from the District Court in Colorado, the city had completed several projects aimed at renovating noncompliance sidewalks and curb cuts identified by the plaintiff as well with other compliance projects. In 2014, plaintiff also filed an ADA complaint with the Department of Justice, and at some point following that complaint, the DOJ began an ADA audit of the city. That audit identified at least five newly constructed or altered curb ramps that were noncompliant. In anticipation of the consent decree with the DOJ, the city sought to amass funding for the 2017 city budget of between $500,000-$1,000,000 to address the most critical curb cuts immediately. The city must also set aside $600,000 to mitigate other ADA compliance issues noted by the DOJ. All of this in addition to the $550,000 spent by the city in 2016 to repair major downtown sidewalks and curb cuts as well as $800,000 plan for repairs in 2017. Even so, plaintiff then filed suit on October 12, 2016 seeking declaratory relief as well as compensatory damages and attorneys fees under the ADA. The defendant defended on the grounds that the claims were barred by the statute of limitations and that sidewalks and curb cuts were not a service, program, or activity of the public entity.
The court agreed that the statute of limitations had passed and reasoned as follows:
- The court found that the plaintiff’s use of the sidewalks as a means of transportation was sufficient to present an invasion of a legally protected interest that was concrete, particularized, and actual or imminent. Also, there was no dispute that the city’s inaccessible sidewalks and curb cuts were the cause of plaintiff’s injuries and that a favorable decision would redress those injuries. That is, force the city to remediate its noncompliance sidewalks and curb cuts. Accordingly, the plaintiff had standing to proceed with a lawsuit.
- With respect to whether sidewalks and curb cuts were a program, activity, or service of a public entity, the court sidestepped that question and chose to focus on the statute of limitations instead. They did note in a footnote that the weight of authority favors a finding that sidewalks and curb cuts are services under title II of the ADA and §504 of the Rehabilitation Act.
- With respect to the statute of limitations, the court found that the most analogous statute of limitations in Colorado was a two-year statute of limitations.
- Hamer was clearly aware of the ADA and Rehabilitation Act violations throughout the city in April 2014, but failed to bring suit until October, 2016. At the latest, he had knowledge of the exact basis for this lawsuit on April 29, 2014, which was the date he filed his complaint with DOJ.
- Plaintiff’s argument that a continuing violation was occurring because many of the problems were not fixed was not persuasive. Continuing violations is a concept more commonly seen in employment matters rather than anywhere else. In those cases, there are a series of separate acts collectively constituting one unlawful employment practice so that the discriminatory conduct cannot be said to occur on any particular day. If that isn’t the case, discrete discriminatory acts each start their own statute of limitation clock for purposes of filing a timely suit.
- The 10th Circuit has rejected the continuing violation theory with respect to civil rights claims arising under §1981, and it has never formally adopted that doctrine for §1983 actions either.
- The court did note that both the Ninth and Seventh circuits as well as some District Courts have applied the continuing violation theory to title II actions, but the court was not having any of it based on the circumstances of this particular case.
- The continuing violation theory is triggered by continual unlawful acts not by continual ill effects from the original violation.
- The construction and alleged lack of maintenance of noncompliant sidewalks and curb cuts are discrete acts of discrimination, and any subsequent injury caused by the city’s failure to fix those issues are the continual ill effects of the original violation. The court cited several decisions to back up that point of view. All of those decisions look to whether the condition partook of permanence and therefore triggered an awareness on the part of a qualified plaintiff denied access that he or she should assert his rights.
- While state law governs what statute of limitation period exists, federal common law decides when the statute of limitation begins to run. The federal common law rule is that the statute of limitation begins to run when a plaintiff discovers, or by the exercise of due diligence would have discovered, that he or she has been injured and who caused the injury. Accordingly, the statute of limitation begins to run the moment the plaintiff knew or should have known that he was being denied the benefits of the city’s newly built or altered sidewalks and curb cuts regardless of when those sidewalks were actually constructed or altered.
- Since the continuing violation theory doesn’t work, the plaintiff failed to identify any violations occurring within the applicable two-year statute of limitations. More particularly, the plaintiff’s ADA and Rehabilitation Act claims accrued on April 29, 2014, or, at the very latest, on August 2014, when he again raised concerns at a city council meeting.
- It is not sufficient to rely solely on the continued ill effects of the city’s original acts of discrimination in order to satisfy the plaintiff’s burden on summary judgment.
- While a report showing that there are several existing problems remaining confirmed the existence of a case and controversy, it doesn’t change the analysis with respect to the discovery rule under the statute of limitations.
- The city with its effort to fix things may have mooted many of the complained of allegations regardless of the statute of limitations issue. With respect to those that were not mooted, that alone does not satisfy the plaintiff’s burden of demonstrating with specificity the existence of a disputed fact within the applicable statute of limitations.
- This case is very significant. Common sense would dictate that if the violations are still going on, the statute of limitations would continue to run. This is a big issue with respect to architectural accessibility. Instead, this case holds that regardless of whether architectural violations are going on, the statute of limitation begins to run from the moment the plaintiff is aware of the architectural violations. Such a decision forces a plaintiff into continually rechecking whether the architectural violations still exist. Also, even if those architectural violations still exist, if forces the plaintiff to continually look for new and different architectural violations if the statute of limitations is to be extended.
- Keep in mind, there is a definite split in the courts on this issue. It is far from certain whether the ultimate result with respect to continuing architectural accessibility violations will come down to application of a strict discovery rule.
- A similar problem exists with respect to the statute of limitations in failure to accommodate cases. There, you see the statute of limitations in terms of when it begins to run breaking down along similar lines: a constructive discharge theory; a discrete act theory but one which allows for the possibility that failure to act could extend the statute of limitations (click on the immediate preceding hyperlink for a blog entry of mine discussing both of those approaches); and a strict discovery rule, the same approach as Hamer. With respect to the failure to accommodate statute of limitations accrual question, the cases are very few and far between (the cases seem to be more numerous with respect to title II in general at least from a reading of this court decision), but I would expect a similar split to occur on failure to accommodate statute of limitations accrual questions.
- Since title II and title III do not require exhaustion of administrative remedies, if administrative remedies are pursued, it has to be remembered that the clock is still running. Administrative agencies, whether they be OCR or DOJ can take an incredibly long time to figure things out. So, attorneys on both sides need to be very much aware of whether the plaintiff has pursued or is pursuing administrative remedies before filing suit.
- The city certainly helped itself by working with the Department of Justice and devoting considerable resources to fix and plan for future fixes with respect to ADA compliance.
- A defense that sidewalks and curb cuts are not a program, activity, or service of a public entity is unlikely to be successful.
- Standing and statute of limitations accrual questions are distinct issues.
- On the statute of limitations question, it might be worth for the plaintiff to appeal since the law is so uncertain. I am aware of the plaintiff’s law firm (many of their cases wind up as blog entries of mine), and so it wouldn’t surprise me at all to see an appeal here.
- In most cases, the statute of limitations winds up being two years, but states can vary. Attorneys need to check the case law in your jurisdiction to find out what is the appropriate statute of limitations being used with respect to disability discrimination claims. Also, at this case makes clear, it is a separate question as to when a statute of limitations begins to run versus how long the statute of limitations is.
- Continuing violations is a theory very much frowned upon by the federal courts. However, on the plaintiff side, it is certainly worth trying to reframe it as a failure to fix discrete acts rather than a continuing violation and see if the court goes for that. For example, in Keith-Foust, the Middle District of North Carolina suggested that failure to act on a reasonable accommodation request could extend the statute of limitations.