BARTELL v. GRIFOLS SHARED SERVICES NA, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EMILY BARTELL, )

)

Plaintiff, )

)

v. ) 1:21CV953

)

GRIFOLS SHARED SERVICES NA, )

INC., INTERSTATE BLOOD BANK )

INC., and BIOMAT, USA, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is a Motion for Preliminary Injunction,

(Doc. 5), filed by Plaintiff Emily Bartell. For the reasons set

forth herein, this court will grant in part Plaintiff’s motion.

I. PROCEDURAL HISTORY

Plaintiff filed a Motion for Preliminary Injunction,

(Doc. 5), seeking an interim remedy for alleged violations of

the Americans with Disabilities Act (“ADA”) and Section 504 of

the Rehabilitation Act. Plaintiff filed a brief in support of

her motion. (Mem. of Law in Supp. of Mot. for Prelim. Inj.

(“Pl.’s Br.”) (Doc. 6).) Attached to Plaintiff’s motion is a

Declaration of Emily Bartell (Decl. of Emily Bartell (“Bartell

Decl.”) (Doc. 5-1)), a Declaration of Darrel Butch Holloway

(“Holloway Decl.”) (Doc. 5-2)), and a Declaration of David H.

Johnson (“Johnson Decl.”) (Doc. 5-3)). Defendants Grifols Shared

Services NA, Inc. (“Grifols”), Interstate Blood Bank Inc.

(“IBBI”), and Biomat, USA, Inc. (“Biomat”) (together,

“Defendants”) filed a brief in opposition to Plaintiff’s motion,

(Defs.’ Mem. of Law in Opp’n to Pl.’s Mot. for Prelim. Inj.

(“Defs.’ Resp.”) (Doc. 22)), and attached a Declaration of Mark

Becker, MD (“Becker Decl.”) (Doc. 22-1)). Plaintiff replied,

(Reply to Defs.’ Opp’n to Pl.’s Mot. for Prelim. Inj. (“Pl.’s

Reply”) (Doc. 27)), and attached a supplemental Declaration of

Emily Bartell, (Decl. of Emily Bartell (“Bartell Suppl. Decl.”)

(Doc. 27-1)), a Declaration of Pamela Douglas, MSN, RN, CIC®

(Decl. of Pamela Douglas, MSN, RN, CIC® (“Douglas Decl.”)

(Doc. 27-2)), and a supplemental Declaration of David H. Johnson

(Decl. of David. H Johnson (“Johnson Suppl. Decl.”) (Doc. 27-

3)). Having reviewed the motion, the supporting documents, all

matters of record, and the briefing, this court’s findings of

fact and conclusions of law are contained herein. Infra Parts

II-III. These findings and conclusions are only made for the

purpose of issuing a preliminary injunction and are therefore

not final.

II. FINDINGS OF FACT

1. Biomat is the parent company of IBBI. (Becker Decl.

(Doc. 22-1) ¶ 7.)1

2. IBBI operates plasmapheresis donation centers (“PDC”)

throughout the United States, including one in Asheville, North

Carolina. (Id. ¶ 5.)

3. Plaintiff is blind and relies on a service animal to

navigate her surroundings. (Bartell Decl. (Doc. 5-1) ¶¶ 3–4.)

4. Plaintiff’s service animal is an eight-year-old golden

retriever that was trained by the Seeing Eye Inc., an

organization that trains service dogs for people who experience

blindness. (Id. ¶ 6; Johnson Decl. (Doc. 5-3) ¶¶ 1–2.)

5. Plaintiff has had her service animal since 2015.

(Bartell Decl. (Doc. 5-1) ¶ 7.)

6. Plaintiff’s service animal “is well-groomed, in good

health, and up-to-date on all required vaccinations.” (Bartell

Suppl. Decl. (Doc. 27-1) ¶ 4.) Plaintiff’s service animal

regularly sees a veterinarian, is groomed daily, and has never

given Plaintiff an infection. (Id. ¶¶ 5–7.)

7. Prior to getting a service animal, Plaintiff used a

white cane for navigation, which caused bruising and discomfort,

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

and, unlike her service animal, could not detect overhead

objects. (Bartell Decl. (Doc. 5-1) ¶ 11.)

8. Plaintiff has regularly donated plasma at a PDC in

Asheville, North Carolina since August 2019. (Id. ¶ 12.)

Plasma Donation Process

9. There are four phases for new donors in the plasma

donation process. (Becker Decl. (Doc. 22-1) ¶ 12.) “First, prior

to each donation, all donors must complete a health history

questionnaire. . . . In the Asheville PDC, this is typically

done with a self-serve kiosk in the lobby.” (Id. ¶ 13; see also

Bartell Decl. (Doc. 5-1) ¶¶ 19–20.)

10. The second step of the plasma donation process requires

donors to “complete a screening process where the donor’s

weight, blood pressure, pulse and temperature are measured, and

a blood sample is collected to test for total protein and

hematocrit.” (Becker Decl. (Doc. 22-1) ¶ 14; see also Bartell

Decl. (Doc. 5-1) ¶ 21.) Because a staff member is required to

complete the screening process, “sometimes donors must wait in a

designated area until a staff member is available.” (Becker

Decl. (Doc. 22-1) ¶ 14.)

11. Only new patients complete the third step, where they

have “an in-depth health history interview with a member of the

medical staff, an informed consent process for the

plasmapheresis process, and a physical examination.” (Id. ¶ 15.)

12. The fourth step is the plasma donation. (Id. ¶ 16.) A

donor is led to the donor floor, where he lays in a bed while

the plasma donation process occurs. (Id.; see also Bartell Decl.

(Doc. 5-1) ¶ 22.)

Plaintiff’s Plasma Donation

13. Plaintiff has been “a routine plasma donor” at a PDC in

Asheville North Carolina “since August 2019.” (Bartell Decl.

(Doc. 5-1) ¶ 12.)

14. The kiosks that donors use to complete phase one of the

plasma donation process are inaccessible to Plaintiff. (Id.

¶ 33.)

15. Instead of completing the health history questionnaire

on the kiosks, Plaintiff “must wait for a staff member to become

available to complete the check in process.” (Id. ¶ 34.)

16. Plaintiff’s “check-in process is far more time

consuming than it is for [her] sighted companion. He is

typically finished with the check in process in minutes whereas

it takes [her] 20–30 minutes or longer to check in.” (Id.)

17. Plaintiff completes the health history questionnaire in

the same area where she completes phase two, the health

screening. (Id. ¶ 35.)

18. Plaintiff describes the area as “small,” “semi-

private,” (id.), and “open air,” (Bartell Suppl. Decl. (Doc. 27-

1) ¶ 18). Defendants describe the area as a “private room.”

(Becker Decl. (Doc. 22-1) ¶ 26.)

19. Plaintiff “can often hear conversations between

donation center staff and other donors in neighboring cubicles.”

(Bartell Suppl. Decl. (Doc. 27-1) ¶ 19.)

20. “The staff member goes through the pre-donation

questionnaire verbally with [Plaintiff] and [Plaintiff] verbally

respond[s].” (Bartell Decl. (Doc. 5-1) ¶ 35.)

21. Plaintiff has asked on multiple occasions for an

alternative format of the health history questionnaire because

she is “very uncomfortable having to provide [her] health and

other confidential information out loud and potentially within

earshot of others.” (Id. ¶¶ 35–36.)

22. Plaintiff’s service animal accompanied Plaintiff to

donate plasma. (Bartell Suppl. Decl. (Doc. 27-1) ¶ 8.) Her

service animal would lay “on the opposite side of [her] donor

chair from the plasma machine” and “was on leash and under [her]

verbal command throughout the plasma donation process.” (Id.

¶¶ 9–10.) Plaintiff’s “service animal never interfered with the

plasma donation process,” and “[t]he donation center staff

frequently told [Plaintiff] that [her] service animal is one of

the best service animals they encountered.” (Id. ¶¶ 11, 13.)

Denial of Plaintiff’s Service Animal

23. In December 2020, “Grifols wholly acquired IBBI[,] and

IBBI began implementing Grifols’ health and safety standards.”

(Becker Decl. (Doc. 22-1) ¶ 6.)

24. Defendants “implement rigorous health and safety

policies.” (Id. ¶ 21.) These policies allow “[a]nyone from the

public, including service animals, . . . in all public areas of

the PDC. However, the donor floor, where the actual donation

takes place, is not open to the public.” (Id. ¶ 22.) Defendants

prohibit service animals from entering the donor floor. (Id.

¶ 23.)

25. The purpose of Defendants’ policy is “to both protect

the collection materials and collected plasma from microbial and

other contamination and the safety of staff and donors, whether

that be through risk of infection or posing tripping hazards.”

(Id. ¶ 24.)

26. Dogs can transmit organisms to humans and vice versa,

but “[n]ot all organisms are transmissible between species.”

(Douglas Decl. (Doc. 27-2) ¶ 12.)

27. The main way a human can become infected “from a dog is

via ingestion of urine, feces, or saliva from an infected dog.”

(Id. ¶ 13.)

28. Because “[p]lasma donation utilizes a ‘closed system,’

. . . [t]o contaminate the plasma, an infected dog . . . would

have to perform a behavior such as licking the needle being

used.” (Id. ¶ 15.)

29. Keeping a dog laying on the ground or seated should

eliminate the risk of contaminating the plasma. (Id.)

30. On December 24, 2020, staff at the PDC told Plaintiff

her service animal could no longer accompany her on the donor

floor. (Bartell Decl. (Doc. 5-1) ¶ 23.)

31. On January 5, 2021, Plaintiff brought her service

animal to the PDC and was again told her service animal could

not accompany her on the donor floor because Defendants had a

“no animal” policy. (Id. ¶¶ 25–26.)

32. Plaintiff continues to donate plasma, but she uses her

cane to navigate instead of her service animal. (Id. ¶¶ 30–31.)

Her cane “is not as effective at alerting [her] to obstacles as

[her] service dog,” and it causes her to bruise. (Id. ¶ 30.)

Additional facts will be addressed hereafter as necessary.

III. CONCLUSIONS OF LAW

“A plaintiff seeking a preliminary injunction must

establish” four prongs: “that [1] he is likely to succeed on the

merits, that [2] he is likely to suffer irreparable harm in the

absence of preliminary relief, that [3] the balance of equities

tips in his favor, and that [4] an injunction is in the public

interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,

20 (2008). “Courts considering whether to impose preliminary

injunctions must separately consider each Winter factor.” Di

Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017). Such an

“injunction is an extraordinary remedy intended to protect the

status quo and prevent irreparable harm during the pendency of a

lawsuit.” Id. The moving party bears the burden of “clearly

establish[ing] entitlement to the relief sought.” Id.

Here, Plaintiff has established all four prongs as related

to her claim that Defendants violated the ADA and Rehabilitation

Act by denying her access to her service animal on the plasma

donor floor, and therefore this court will issue a preliminary

injunction in her favor. This preliminary injunction will

preserve the status quo until this case is adjudicated on a more

fulsome and developed record. Each prong is addressed in turn.

A. Likelihood of Success of the Merits

“A plaintiff need not establish a ‘certainty of success,’

but must make a clear showing that he is likely to succeed.” Id.

(quoting Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013)).

“[T]he burden placed upon Plaintiff[] to show that each

requirement of a preliminary injunction is met is high.

Consequently, merely ‘providing sufficient factual allegations

to meet the [Fed. R. Civ. P.] 12(b)(6) standard of Twombly and

Iqbal’ does not show a likelihood of success on the merits.”

J.O.P. v. U.S. Dep’t of Homeland Sec., 338 F.R.D. 33, 60 (D. Md.

2020) (alterations in original) (quoting Allstate Ins. Co. v.

Warns, Civil No. CCB-11-1846, 2012 WL 681792, at *14 (D. Md.

Feb. 29, 2012)). “Courts have declined to issue a preliminary

injunction when there are significant factual disputes.”

Chattery Int’l, Inc. v. JoLida, Inc., Civil No. WDQ-10-2236,

2011 WL 1230822, at *9 (D. Md. Mar. 28, 2011).

Plaintiff alleges Defendants violated Title III of the ADA,

42 U.S.C. § 12181, and Section 504 of the Rehabilitation Act, 29

U.S.C. § 794. (Compl. (Doc. 1) ¶¶ 53–93.) Title III of the ADA

provides that “[n]o individual shall be discriminated against on

the basis of disability in the full and equal enjoyment of the

goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation.” 42 U.S.C.

§ 12182(a). Similarly, Section 504 of the Rehabilitation Act

provides that “[n]o otherwise qualified individual with a

disability in the United States . . . shall, solely by reason of

her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance.”

29 U.S.C. § 794(a).2

“To the extent possible, [courts] construe the ADA and

Rehabilitation Act to impose similar requirements. Thus, despite

the different language these statutes employ, they require a

plaintiff to demonstrate the same elements to establish

liability.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d

454, 461 (4th Cir. 2012) (internal citations omitted). The

parties have focused on the ADA anti-discrimination

requirements, (see Pl.’s Reply (Doc. 27) at 3 n.1; Defs.’ Resp.

(Doc. 22) at 8–19), and this court will do the same.

Both the ADA and the Rehabilitation act require that

reasonable modifications be made by covered actors for

individuals with disabilities. See Halpern, 669 F.3d at 461.

Plaintiff contends Defendants violated this requirement by

(1) excluding her service animal from the donor floor; and

2 Defendants do not dispute that they are covered entities

under Title III of the ADA and Section 504 of the Rehabilitation

Act. (See Defs.’ Resp. (Doc. 22).)

(2) failing to provide effective communication during the plasma

donation check-in process. (Compl. (Doc. 2) ¶¶ 57–77.)

1. Excluding Service Animal from the Donor Floor

Under the ADA as well as the Rehabilitation Act, “it

constitutes discrimination . . . to refuse to permit disabled

individuals to be accompanied by service animals.” Berardelli v.

Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 114 (3d Cir.

2018); see also 28 C.F.R. § 36.302(c)(1) (“Generally, a public

accommodation shall modify policies, practices, or procedures to

permit the use of a service animal by an individual with a

disability.”). “A covered actor therefore violates both statutes

per se if it denies a disabled person’s request to be

accompanied by his or her service animal unless” an exception

applies. C.G. by & through P.G. v. Saucon Valley Sch. Dist., 571

F. Supp. 3d 430, 440 (E.D. Pa. 2021). Title III of the ADA’s

general prohibition of discrimination by public accommodations

does not require a covered actor to allow a service animal if

(1) the service animal “poses a direct threat to the health or

safety of others”; (2) the service animal “would fundamentally

alter the nature of the service”; (3) “[t]he animal is out of

control and the animal’s handler does not take effective action

to control it”; or (4) “[t]he animal is not housebroken.” 28

C.F.R. §§ 35.130(b)(7)(i), 35.136(b)(1)–(2), 35.139(a),

36.302(c)(2).

a. Direct Threat to Health of Safety

Defendants argue that “[s]ervice animals pose a direct

threat to the health or safety of others in the unique setting

of a PDC.” (Defs.’ Resp. (Doc. 22) at 13 (citing 42 U.S.C.

§ 12182(3)).) Defendants contend their policy of excluding

service animals from the donor floor accords with the Department

of Justice’s (“DOJ”) guidance on Title III of the ADA. (Id. at

10–12.) DOJ advises that

[a] service animal may accompany its handler to such

areas as admissions and discharge offices, the

emergency room, inpatient and outpatient rooms,

examining and diagnostic rooms, clinics,

rehabilitation therapy areas . . . and all other areas

of the facility where healthcare personnel, patients,

and visitors are permitted without taking added

precautions.

28 C.F.R. pt. 36, app. A. But “[c]onsistent with [Centers for

Disease Control] guidance, it is generally appropriate to

exclude a service animal from limited-access areas that employ

general infection-control measures, such as operating rooms and

burn units.” Id.

Defendants equate their donor floor to a burn unit or

operating room. (See Defs.’ Resp. (Doc. 22) at 10–11.) On the

donor floor, the donor “remain[s] on the donor bed and avoid[s]

movement of the arm” while “a sterile needle is placed into the

donor’s vein, which is connected with single use sterile tubing

to an automated plasmapheresis machine.” (Becker Decl. (Doc. 22-

1) ¶ 16.) The plasma donation process takes about forty-five

minutes. (Id.) Pamela Douglas, “an infection control

professional with experience working in human healthcare and

veterinary settings,” described in her affidavit the difficulty

of contaminating plasma because “[p]lasma donation utilizes a

‘closed system.’” (Douglas Decl. (Doc. 27-2) ¶¶ 1, 15.) She also

noted that the plasma donation process does not take place in a

sterile environment. (Id. ¶ 17.) Potential donors complete a

health history questionnaire, a screening process, and, for new

donors, an in-depth history interview, but these procedures,

according to Dr. Becker, are for the purpose of determining a

donor’s eligibility; infection control is not mentioned. (See

Becker Decl. (Doc. 22-1) ¶¶ 12–15.)

While implicitly these preliminary phases of the plasma

donation process may be in part to mitigate infection, that

inference is belied by the fact Plaintiff had donated dozens of

times with her service animal present prior to December 2020.

(See Bartell Decl. (Doc. 5-1) ¶¶ 12, 23–24; Becker Decl.

(Doc. 22-1) ¶ 31.) It does not appear Plaintiff and her service

animal increased the risk of infection in the past, and if the

purpose of the preliminary phases was to mitigate infection,

Defendants offer no evidence as to why Plaintiff was not barred

from donating with her service animal in the past. At this stage

of the litigation, Defendants offer no evidence to support a

finding that new evidence suggests Plaintiff’s service animal is

now a recognized risk of infection. This court is unpersuaded

Defendants have taken similar infection-prevention measures

contemplated by burn units and operating rooms to make

Plaintiff’s service animal a direct threat while on the donor

floor.

Moreover, Defendants have failed to offer any evidence that

they have “ma[d]e an individualized assessment, based on

reasonable judgment that relies on current medical knowledge or

on the best available objective evidence, to ascertain,” the

risk and likelihood of injury Plaintiff’s service animal poses

to the plasma donation process. 28 C.F.R. § 36.208(b). The

regulations require such individualized assessment before

refusing to permit an individual to participate in services. Id.

Defendants suggest such individualized assessment “is

inapplicable to service animals and only applies to persons.”

(Defs.’ Resp. (Doc. 22) at 13 n.2.) This court disagrees. The

DOJ guidance explains that DOJ decided against “includ[ing]

regulatory language specifically stating that a service animal

can be excluded if it poses a direct threat” because DOJ

“believes that the direct threat provision in § 36.208 already

provides [an] exception to public accommodations” for when a

service animal can be excluded. 28 C.F.R. pt. 36, app. A. Thus,

Section 36.208 applies to services animals, and nothing in the

regulation’s language or the DOJ guidance provides that a public

accommodation is exempt from conducting an individualized

assessment of the risk posed by a service animal. Absent an

individualized assessment, Defendants have not shown Plaintiff’s

service animal poses a direct threat to the health and safety of

others at the PDC.3

Defendants further argue that “service animals can behave

unpredictably,” so their policy is necessary to protect the

health and safety of donors and employees. (Defs.’ Resp.

(Doc. 22) at 13–14.) Although “[a] public accommodation may

impose legitimate safety requirements that are necessary for

safe operation,” those “requirements must be based on actual

risks and not on mere speculation, stereotypes, or

3 Defendants cite Pool v. Riverside Health Services, Inc.,

No. 94-1430-PFK, 1995 WL 519129 (D. Kan. Aug. 25, 1995), as

support for their position that they are not required to conduct

an individualized assessment of Plaintiff’s service animal. (See

Defs.’ Resp. (Doc. 22) at 13 n.2.) Pool dealt with a patient’s

family member’s request to bring her service animal into the

emergency room treatment area, see 1995 WL 519129, at *1, an

area the DOJ guidance contemplates as an area where a service

animal may accompany its handler, 28 C.F.R. pt. 36, app. A. To

the extent Pool and the DOJ guidance conflict, this court finds

the DOJ guidance more persuasive, especially considering Pool

was decided over ten years before the DOJ issued its guidance.

generalization about individuals with disabilities.” 28 C.F.R.

§ 36.301(b). Defendants’ exclusion of Plaintiff’s service animal

is based only on speculation. Defendants describe a hypothetical

scenario where “a service animal loses control on the donor

floor, with an immobilized handler and immobilized victims.”

(Defs.’ Resp. (Doc. 22) at 14.) This scenario in not based on

actual risks; Plaintiff’s service animal never caused issues on

the donor floor in the past. (Bartell Decl. (Doc. 5-1) ¶ 26;

Bartell Suppl. Decl. (Doc. 27-1) ¶¶ 11, 13.) Defendants point to

Plaintiff’s service animal’s past behavior in “unanticipated

situations” as evidence of a direct threat to safety. (Defs.’

Resp. (Doc. 22) at 13–14 (emphasis omitted).) But that

unanticipated situation was created by Defendants when they

separated Plaintiff and her service animal and put the service

animal in a separate room from Plaintiff. (See Compl. (Doc. 2)

¶¶ 28–33.) Such a situation cannot reasonably be anticipated to

occur if Plaintiff and her service animal are together on the

donor floor because the only time Plaintiff’s service animal

exhibited concerning behavior was when Defendants separated the

service animal from Plaintiff. This court concludes Defendants

have failed to show Plaintiff’s service animal is a direct

threat to the health and safety of donors and PDC employees.

b. Fundamentally Alter

In addition to arguing Plaintiff’s service animal is a

direct threat to safety, Defendants argue allowing Plaintiff’s

service animal on the donor floor would fundamentally alter

their service. (Defs.’ Resp. (Doc. 22) at 15.) Defendants

contend that “permitting service animals would fundamentally

alter the nature of Defendants’ accommodation—the safe and

sanitary collection of plasma.” (Id.)

This court finds permitting Plaintiff’s service animal

would not fundamentally alter Defendants’ plasma donation

service. Douglas opined “that vaccinated, healthy, well-trained

service animals pose no greater risk of infection transmission

than is created by other people, including both donors and

staff, being present on the plasma donation floor.” (Douglas

Decl. (Doc. 27-2) ¶ 20.) Plaintiff’s service animal is

vaccinated, healthy, and well-trained. (Bartell Suppl. Decl.

(Doc. 27-1) ¶¶ 4–5; Bartell Decl. (Doc. 5-1) ¶¶ 6–8.) Defendants

offer no evidence to the contrary besides their unsupported

opinion that allowing Plaintiff’s service animal would

fundamentally alter the plasma donation process. It is unclear

to this court how allowing Plaintiff’s service animal would

fundamentally alter Defendants’ service when there is no

evidence the plasma donation process changed after IBBI was

acquired by Grifols, and prior to that acquisition the presence

of Plaintiff’s service animal apparently did not fundamentally

alter the provision of plasma donation services.

Defendants further argue that permitting Plaintiff’s

service animal would cause Defendants to be in non-compliance

with the Food and Drug Administration (“FDA”) regulations

governing PDCs. (Defs.’ Resp. (Doc. 22) at 8–10.) Under 21

C.F.R. § 606.40, Defendants are required to maintain their PDCs

“in a clean and orderly manner,” to “[p]rovide adequate space

for . . . [t]he orderly collection, processing, compatibility

testing, storage and distribution of blood and blood components

to prevent contamination.”

Defendants argue “[a]nimals on the donor floor present an

increased risk of contamination of the plasma because they are

more likely than humans to carry fleas, ticks, rabies, or other

microbial; to release dust, fur, dander, or other allergens into

the air; or to unexpectedly and uncontrollably release bodily

fluids.” (Defs.’ Resp. (Doc. 22) at 9.) Defendants offer no

evidence in support of this opinion.4 This unsupported assertion

4 To the extent Defendants rely on Plaintiff’s service

animal’s reaction to being separated from Plaintiff as evidence

of increased risk of contamination, for the reasons explained

supra Section III.A.1, the service animal’s response to being

separated from Plaintiff is not indicative of how the animal

would act in Plaintiff’s presence.

is diminished by an infection control professional’s description

of plasma donation. Douglas explains that

[p]lasma donation utilizes a ‘closed system,’ meaning

that blood is withdrawn from the donor via a sterile

needle and a single use tubing. . . . To contaminate

the plasma, an infected dog with a zoonotic illness

transmissible through saliva would have to perform a

behavior such as licking the needle being used or the

site of the needle insertion in the arm of the plasma

donor, or the plasma donation center staff would have

to pet the infected dog, transmissible pathogens would

have to be present, and staff would then have to fail

to wash their hands or wear gloves while inserting the

needle into the donor’s arm.

(Douglas Decl. (Doc. 27-2) ¶ 15.) This court finds Defendants

have failed to show Plaintiff’s service animal’s presence would

increase the risk of infection or contamination.

The FDA regulations also require “adequate space” for the

plasma donation process. (See Defs.’ Resp. (Doc. 22) at 10

(internal quotation marks omitted) (quoting 21 C.F.R.

§ 606.40).) Defendants contend they will be in violation of this

regulation if they are required to allow service animals onto

the donor floor. (Id.) This court disagrees. First, Plaintiff is

seeking an injunction only as to herself and her service animal,

(Pl.’s Reply (Doc. 27) at 4 (“Ms. Bartell seeks an individual

injunction[.]”)), not an injunction as to “any and all service

animals” as argued by Defendants, (Defs.’ Resp. (Doc. 22) at

10). Second, Defendants offer no evidence that they will be in

non-compliance with the FDA regulation’s requirement of adequate

space if they allow Plaintiff’s service animal to accompany her

to the donor floor, nor do they acknowledge that it is their

burden under the regulation to provide adequate space.

Accordingly, this court finds Defendants have failed to show

that allowing Plaintiff’s service animal on the donor floor

would fundamentally alter their plasma donation process.

c. Under Control

Finally, Defendants argue that their policy excluding

service animals from the donor floor is justified by Title III’s

regulation requiring service animals to be under control.

(Defs.’ Resp. (Doc. 22) at 15–16.) 28 C.F.R. § 36.302(c)(4)

requires that

[a] service animal shall be under the control of its

handler. A service animal shall have a harness, leash,

or other tether, unless either the handler is unable

because of a disability to use a harness, leash, or

other tether, or the use of a harness, leash, or other

tether would interfere with the service animal’s safe,

effective performance of work or tasks, in which case

the service animal must be otherwise under the

handler’s control (e.g., voice control, signals, or

other effective means).

Again, Defendants contemplate a hypothetical scenario where

“a service animal becomes startled” and there is “no one who can

gain control” because “a donor is limited to a single bed, with

a needle arresting mobility.” (Defs.’ Resp. (Doc. 22) at 16.)

Defendants do not contend that Plaintiff’s service animal has

ever been out of control. To the contrary, Plaintiff’s “service

dog was on leash and under [her] verbal command throughout the

plasma donation process” and has “never interfered with the

plasma donation process.” (Bartell Suppl. Decl. (Doc. 27-1)

¶¶ 10–11.) Plaintiff’s service animal has never “misbehaved or

been disruptive or aggressive” “in new and sometimes

unpredictable situations.” (Bartell Decl. (Doc. 5-1) ¶ 9.) At

Plaintiff’s other medical appointments, including blood draws,

Plaintiff’s service animal “lay[s] at [her] feet as commanded

and [does] not interact with the medical provider or attempt to

interfere in their treatment.” (Id. ¶ 10.)

This court finds that while the ADA’s regulations require

service animals to be under the control of their handler,

Defendants offer no evidence to dispute Plaintiff’s evidence

that her service animal is under her control. Thus, this court

finds Defendants have failed to demonstrate how Title III of the

ADA’s regulation concerning control of service animals warrants

excluding Plaintiff’s service animal.

In conclusion, Defendants have failed to show that

Plaintiff’s service animal is a direct threat to safety, would

fundamentally alter the nature of their service, and is not

under control. On the other hand, Plaintiff has demonstrated a

likelihood of success on the merits of her claim that Defendants

violated Title III of the ADA and Section 504 of the

Rehabilitation Act by excluding her service animal from the

donor floor.

2. Failure to Provide Effective Communication

Plaintiff alleges Defendants also violated the ADA and

Rehabilitation Act by failing to provide effective communication

to Plaintiff during the plasma donation process. (Compl.

(Doc. 2) ¶¶ 67–77.) A public accommodation discriminates against

an individual with a disability when it

fail[s] to take such steps as may be necessary to

ensure that no individual with a disability is

excluded, denied services, segregated or otherwise

treated differently than other individuals because of

the absence of auxiliary aids and services, unless the

entity can demonstrate that taking such steps would

fundamentally alter the nature of the good, service,

facility, privilege, advantage, or accommodation being

offered or would result in an undue burden.

42 U.S.C. § 12182(b)(2)(A)(iii); see also 28 C.F.R. § 36.303(a)

(“A public accommodation shall take those steps that may be

necessary to ensure that no individual with a disability is

excluded, denied services, segregated or otherwise treated

differently than other individuals because of the absence of

auxiliary aids and services, unless the public accommodation can

demonstrate that taking those steps would fundamentally alter

the nature of the goods, services, facilities, privileges,

advantages, or accommodations being offered or would result in

an undue burden, i.e., significant difficulty or expense.”).

Examples of appropriate aids for the visually impaired include

“[q]ualified readers,” “accessible electronic and information

technology,” “audio recordings,” “screen reader software,” and

the “[a]cquisition or modification of equipment or devices.” 28

C.F.R. § 36.303(b)(2), (3).

“Title III and its implementing regulations require public

accommodations to furnish ‘appropriate auxiliary aids and

services where necessary to ensure effective communication with

individuals with disabilities.’” Nat’l Fed. of the Blind, Inc.

v. Wal-Mart Assocs., Inc., 566 F. Supp. 3d 383, 399 (D. Md.

2021) (quoting 28 C.F.R. § 36.303(c)(1)). “[T]he type of

auxiliary aid that ensures ‘effective communication’ varies by

context.” Feldman v. Pro. Football, Inc., 419 F. App’x 381, 391

(4th Cir. 2011). “[T]he ultimate decision as to what measures to

take rests with the public accommodation,” but the “auxiliary

aids and services must be provided [1] in accessible formats,

[2] in a timely manner, and [3] in such a way as to protect the

privacy and independence of the individual with a disability.”

28 C.F.R. § 36.303(c)(1)(ii).

Defendants argue they have provided a suitable auxiliary

aid and service to Plaintiff because they have provided her

“with a qualified reader to accurately and efficiently convey

the information and questions otherwise available on the self-

serve kiosk.” (Defs.’ Resp. (Doc. 22) at 16.) Defendants contend

any time delay from using a qualified reader instead of the

kiosks “is negligible,” and the qualified reader provides

Plaintiff with greater privacy than sighted individuals have in

completing the questionnaire. (Id. at 17–18.)

a. Timely Manner

Plaintiff contends the auxiliary aid as an alternative to

the self-serve kiosks is not provided in a timely manner. (See

Compl. (Doc. 2) ¶ 52.) The health history questionnaire is the

first phase of the plasma donation process. (Becker Decl.

(Doc. 22-1) ¶ 13.) Whereas sighted individuals complete the

health history questionnaire on electronic kiosks, Plaintiff

completes the questionnaire during phase two, when she also

completes the health screening. (Id. ¶ 26; Bartell Decl.

(Doc. 5-1) ¶¶ 34–35.) Plaintiff contends that it takes her

twenty to thirty minutes to complete phase one, whereas it takes

her sighted partner three to five minutes. (Bartell Decl.

(Doc. 5-1) ¶ 34; Bartell Suppl. Decl. (Doc. 27-1) ¶¶ 17, 20;

Holloway Decl. (Doc. 5-2) ¶ 11.) Defendants do not dispute that

it may take Plaintiff longer to complete phase one than it takes

sighted individuals; rather, they contend the total time of the

donation process is the same for Plaintiff and sighted

individuals. (Defs.’ Resp. (Doc. 22) at 17.)

Defendants’ argument has merit. Plaintiff cannot use the

kiosks for phase one of the plasma donation process, so she must

wait for a staff member to become available before she can

complete the questionnaire with a staff member. (Bartell Decl.

(Doc. 5-1) ¶¶ 33–35.) Phase one of the plasma donation process

takes her twenty to thirty minutes, in part because she has to

wait for a staff member to become available, (id. ¶ 34), whereas

it takes her sighted partner three to five minutes to complete

phase one, (Holloway Decl. (Doc. 5-2) ¶ 11). However, once

Plaintiff has completed the questionnaire, she does not have to

wait again for a staff member to become available; instead, she

begins phase two with the staff member who just completed the

questionnaire with her. (See Bartell Decl. (Doc. 5-1) ¶ 35;

Becker Decl. (Doc. 22-1) ¶¶ 26–27 (“Since Ms. Bartell cannot use

the self-serve kiosk, she completes the first phase when she

completes the second, with a member of the donor staff in a

private room. . . . This is done at the same time that all

donors complete the second phase.”).) On the other hand, once

sighted individuals complete phase one at the kiosks, they must

wait for a staff member to become available to complete phase

two. (Becker Decl. (Doc. 22-1) ¶ 14 (“Depending on the time of

day, staff availability, and the volume of donors, sometimes

donors must wait in a designated area until a staff member is

available”).) Thus, while Plaintiff must wait for a staff member

to become available before completing phase one, but not phase

two, sighted individuals must wait for a staff member before

completing phase two. (Id. ¶¶ 14, 26–27.) As a result, this

court finds the time it takes Plaintiff to complete the plasma

donation process compared to sighted individuals is comparable,

and to the extent it takes Plaintiff longer to verbally complete

the health history questionnaire with a qualified reader as

compared to the self-serve kiosks, Plaintiff has not “clearly

establishe[d]” that, Di Biase, 872 F.3d at 230, such that this

court could find Plaintiff has demonstrated a likelihood of

success on the merits.

b. Protection of Plaintiff’s Privacy

In addition to alleging the auxiliary aid was not provided

in a timely manner, Plaintiff alleges the auxiliary aid does not

protect her privacy. (Compl. (Doc. 2) ¶ 52.) Instead of using

the kiosks to complete a health history questionnaire, Plaintiff

completes the questionnaire with a staff member “in [a] small,

semi-private area.” (Bartell Decl. (Doc. 5-1) ¶¶ 34–35.) The

staff member verbally asks Plaintiff the questions on the health

history questionnaire, and Plaintiff answers them verbally. (Id.

¶ 35.) “The cubicles where [she] provides [her] answers to the

check in questionnaire are ‘open air’—the cubicle walls do not

reach the ceiling.” (Bartell Suppl. Decl. (Doc. 27-1) ¶ 18.)

Plaintiff is “unclear as to how sound-proof and private this

area actually is,” (Bartell Decl. (Doc. 5-1) ¶ 35), but she “can

often hear conversations between donation center staff and other

donors in neighboring cubicles,” (Bartell Suppl. Decl. (Doc. 27-

1) ¶ 19). Plaintiff is “uncomfortable having to provide [her]

health and other confidential information out loud and

potentially within earshot of others.” (Bartell Decl. (Doc. 5-1)

¶ 35.) In contrast to Plaintiff’s description, Dr. Becker

describes the cubicles where Plaintiff completes the first and

second phases of the plasma donation process as “private.”

(Becker Decl. (Doc. 22-1) ¶ 26.)

Thus, it appears there is a “significant factual

dispute[],” Allegra Network LLC v. Reeder, Civil Action No.

1:09–cv–912, 2009 WL 3734288, at *3 (E.D. Va. Nov. 4, 2009),

about whether Plaintiff completes the health history

questionnaire in private or in an area where other donors and

visitors to the PDC can hear as a result of conflicting

affidavits from the parties, (compare Bartell Suppl. Decl.

(Doc. 27-1) ¶ 18, with Becker Decl. (Doc. 22-1) ¶ 26). This

court could rule that “[b]ecause the [c]ourt cannot resolve

these factual inconsistencies, the [c]ourt finds that Plaintiff

has been unable to establish that Defendant[s] did in fact”

violate the ADA and Rehabilitation Act by failing to provide

auxiliary aids that were effective communication. See Allegra

Network, 2009 WL 3734288, at *3. This court could also rule that

an evidentiary hearing is required to resolve this factual

discrepancy. See Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir.

2004) (“[I]f there are genuine issues of material fact raised in

opposition to a motion for a preliminary injunction, an

evidentiary hearing is required[.]”). This court therefore

instructs the parties to file a response within ten days of this

Memorandum Opinion and Order outlining how they wish to proceed.

Because this court is not ruling at present on the second prong

of requested relief related to whether Defendants have provided

effective communication to Plaintiff, this court will not

address the other Winter factors as to that prong.

B. Likelihood of Irreparable Harm

In addition to a likelihood of success on the merits, a

plaintiff seeking a preliminary injunction must also “make a

clear showing that it is likely to be irreparably harmed absent

preliminary relief.” Real Truth About Obama, Inc. v. FEC, 575

F.3d 342, 347 (4th Cir. 2009), vacated on other grounds 559 U.S.

1089. “Mere injuries, however substantial, in terms of money,

time and energy necessarily expended in the absence of a stay,

are not enough. The possibility that adequate compensatory or

other corrective relief will be available at a later date . . .

weighs heavily against a claim of irreparable harm.” Sampson v.

Murray, 415 U.S. 61, 90 (1974) (internal quotation marks

omitted) (quoting Va. Petrol. Jobbers Ass’n v. Fed. Power

Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)).

Plaintiff argues that “Defendant’s failure to permit Ms.

Bartell to be assisted by her service animal throughout the

plasma donation process and failure to communicate as

effectively with Ms. Bartell as it does with sighted donors

causes her irreparable harm.” (Pl.’s Br. (Doc. 6) at 16.)

Specifically, Plaintiff maintains that discriminatory

deprivation of a service animal and denial of effective

communication are both irreparable harms. (Id. at 17.)

Defendants argue that violations of Title III of the ADA

are not per se irreparable harm, and that “Plaintiff’s actual

harm, to the extent any is alleged, is insufficient to find an

irreparable injury” because she “continues to donate with

similar frequency,” so the harm cannot be considered

irreparable. (Defs.’ Resp. (Doc. 22) at 20–21.)

Courts have held that that when a defendant violates a

civil rights statute, such as the ADA, irreparable injury is

presumed. See Pathways Psychosocial v. Town of Leonardtown, 223

F. Supp. 2d 699, 717 (D. Md. 2002) (recognizing violation of

Title II of the ADA and Section 504 of the Rehabilitation Act

created a presumption of irreparable injury); see also Silver

Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814,

827 (9th Cir. 2001) (“We have held that where a defendant has

violated a civil rights statute, we will presume that the

plaintiff has suffered irreparable injury from the fact of the

defendant’s violation.”); Burlington N.R.R. Co. v. Dep’t of

Revenue of State of Wash., 934 F.2d 1064, 1074 (9th Cir. 1991)

(“The standard requirements for equitable relief need not be

satisfied when an injunction is sought to prevent the violation

of a federal statute which specifically provides for injunctive

relief.”) (quoting Trailer Train Co. v. State Bd. of

Equalization, 697 F.2d 860, 869 (9th Cir. 1983)); Gresham v.

Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir. 1984)

(holding “irreparable injury may be presumed from the fact of

discrimination and violation of fair housing statutes”).

This court finds Plaintiff has established a likelihood of

irreparable harm absent injunctive relief. This is not a case

where the plaintiff has “fail[ed] to show any real or immediate

threat that she will be wronged again.” See Thomas v. Salvation

Army S. Territory, 841 F.3d 632, 638 (4th Cir. 2016) (affirming

district court’s finding of no irreparable harm where the

plaintiff did “not allege that she is still homeless or that the

defendants would still deny her access to the shelters because

of her disability” in bringing a claim under Title III of the

ADA). Instead, Plaintiff has demonstrated she “will be wronged

again,” City of L.A. v. Lyons, 461 U.S. 95, 111 (1983), absent

injunctive relief because Defendants continue to deny Plaintiff

access to her service animal on the donor floor, (Bartell Decl.

(Doc. 5-1) ¶ 27). This is not a “blanket injunction” that makes

Defendants “powerless to . . . make [Plaintiff] comply with a

variety of generally applicable restrictions that are in the

public interest.” Pathways Psychosocial, 223 F. Supp. 2d at 717–

18. Plaintiff’s requested relief seeks to preliminarily enjoin

Defendants from further violation of the ADA and Rehabilitation

Act until this case is decided on the merits. Accordingly, this

court finds Plaintiff has established a likelihood of

irreparable harm absent injunctive relief.

C. Balance of Equities

The third preliminary injunction prong requires that this

court determine whether “the balance of equities tips in

[Plaintiff’s] favor.” Winter, 555 U.S. at 20. This requires

assessment of “the harm Defendants will suffer if Plaintiff’s

motion is granted.” Int’l Lab. Mgmt. Corp. v. Perez, No.

1:14CV231, 2014 WL 1668131, at *14 (M.D.N.C. Apr. 25, 2014).

Plaintiff argues “[t]he balance of hardships tips in [her]

favor” because she is forced to use her cane instead of her

service animal, “which causes bruising,” endures “a

significantly longer donation process[,] and lack of privacy and

independence in communicating health information.” (Pl.’s Br.

(Doc. 6) at 19.) Additionally, Plaintiff argues Defendants would

not incur substantial costs in allowing her service animal on

the donor floor. (Id.)

Defendants contend the balance of equities tips in their

favor because “[t]he requested injunction would require

Defendants to choose between risking their licenses by violating

FDA regulations, and shutting their doors,” whereas the harm to

Plaintiff “is using a person to guide her on the donor floor

rather than a dog” and “does not impact her ability to continue

donating.” (Defs.’ Resp. (Doc. 22) at 22–24.)

Contrary to Defendants’ argument, a preliminary injunction

ordering Defendants to allow Plaintiff’s service animal to

accompany her on the donor floor would not cause Defendants to

violate the FDA regulations. As discussed already, having

Plaintiff’s service animal on the donor floor does not violate

the FDA regulations on plasma donation. See discussion supra

Section III.A.1.b. Although Plaintiff can and does continue to

donate plasma with the use of her cane, using her cane causes

her to bruise and is less effective at alerting Plaintiff of

obstacles. (See Bartell Decl. (Doc. 5-1) ¶¶ 30–31.) Moreover,

allowing Plaintiff’s service animal on the donor floor cannot

reasonably be said to disrupt the plasma donation process, or

the sterilization or quality, because Plaintiff donated plasma

regularly with her service animal prior to December 2020. (See

id. ¶¶ 12, 23–24.) Because Defendants will suffer little, if

any, harm, and Plaintiff has demonstrated a likelihood of

irreparable harm, this court finds the balance of equities,

while albeit perhaps a close call, tips in Plaintiff’s favor.

D. Public Interest

The final prong Plaintiff must establish is that “an

injunction is in the public interest.” Winter, 555 U.S. at 20.

Plaintiff emphasizes that “[t]he public interest supports ending

discrimination against people with disabilities,” and a

preliminary injunction in this case “would . . . protect

broader, societal interests in widespread compliance with civil

rights legislation.” (Pl.’s Br. (Doc. 6) at 20.) Defendants

combine their argument about the public interest with their

argument about the balance of equities. (Defs.’ Resp. (Doc. 22

at 22–24.) Defendants contend “the public impact [of Defendants’

policy] is miniscule.” (Id. at 23.)

This court finds the public interest lies with Plaintiff.

“[T]he public interest lies with upholding the law and having

the mandates of the ADA and Rehabilitation Act enforced. As

Plaintiff[] ha[s] shown a likelihood of success on the merits,

the public interest lies with preserving” Plaintiff’s ability to

use her service animal “and prohibiting what appears to be a

violation of the law.” Marlo M. ex rel. Parris v. Cansler, 679

F. Supp. 2d 635, 638 (E.D.N.C. 2010). A preliminary injunction

in this case would assure that Plaintiff can donate plasma

safely and without harm to herself. Defendants’ assertions they

“would be presented with an impossible choice” of “hav[ing] to

consider closing operations or violating FDA standards of

cleanliness,” (Defs.’ Resp. (Doc. 22) at 23), are without

support as Defendants fail to show they would be in non-

compliance with the FDA regulations of plasma donations, see

supra Section III.A.1.b.

Accordingly, this court finds Plaintiff has established all

four elements showing she is entitled to a preliminary

injunction as to her claim under the ADA and Rehabilitation Act

for denial of her service animal on the donor floor.

E. Bond Requirement

Defendants argue a bond should be required because a

preliminary injunction will force Defendants “to implement a

policy it believes is contrary to FDA regulations,” and by the

time this case is fully adjudicated, Defendants could be cited

or even have their licenses revoked for non-compliance. (Defs.’

Resp. (Doc. 22) at 24–25.) Plaintiff, on the other hand,

contends no bond should be required based on the “speculative

nature of harm to Defendants.” (Pl.’s Reply (Doc. 27) at 12.)

Plaintiff argues that “[i]f Defendants are notified that the

presence of Ms. Bartell’s service animal on the donation floor

violated FDA regulations, Defendants can avoid lost revenue or

harm by telling Ms. Bartell to cease bringing her service animal

to the donation floor and petitioning the Court to lift the

preliminary injunction.” (Id.)

“Where the district court determines that the risk of harm

[to the enjoined party] is remote, or that the circumstances

otherwise warrant it, the court may fix the amount of the bond

accordingly. In some circumstances, a nominal bond may suffice.”

Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421

n.3 (4th Cir. 1999). The bond can be waived entirely when the

defendant would not suffer any harm from the injunction. See

Citizens for a Responsible Curriculum v. Montgomery Cnty. Pub.

Schs., No. Civ.A. AW-05-1194, 2005 WL 1075634, at *12 (D. Md.

May 5, 2005).

This court finds the harm as outlined by Defendants is

speculative. Defendants do not cite any evidence of other PDCs

being forced to close their doors because they allowed service

animals on the donor floor. Plaintiff brought her service animal

regularly on the donor floor prior to December 2020 at the same

facility, yet Defendants do not suggest they were in non-

compliance with FDA regulations at that time. Nor have

Defendants provided any estimate of monetary damage they will

suffer because of a preliminary injunction. This court

recognizes that “important federal rights [are] at issue in this

case,” Taliaferro v. N.C. State Bd. of Elections, 489 F. Supp.

3d 433, 440 (E.D.N.C. 2020), but because Defendants have

strongly opposed waiver of a bond, this court will require

Plaintiff to post a nominal bond to protect Defendants from any

administrative harm that may be incurred in allowing Plaintiff

to bring her service animal on the donor floor.

Iv. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for

Preliminary Injunction, (Doc. 5), is granted in part.

IT IS THEREFORE ORDERED that Plaintiff’s Motion for

Preliminary Injunction, (Doc. 5), is GRANTED in part.

IT IS FURTHER ORDERED that Defendants shall make

accommodations to their policies to permit Plaintiff to donate

plasma while being assisted by her service animal.

IT IS FURTHER ORDERED that security in the amount of $500

shall serve as the bond contemplated by Federal Rule of Civil

Procedure 65(c).

IT IS FURTHER ORDERED that Defendants SHALL file with this

court, within three (3) days of this Memorandum Opinion and

Order, a statement under oath certifying their ongoing

compliance with this Order.

IT IS FURTHER ORDERED that Defendants have ten (10) days to

respond to this court’s comments regarding the issue of fact

created by the parties’ conflicting affidavits outlined in

Section TII.A.2.

This the 15th day of August, 2022.

1 tae Sola Me

United States District Judge

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