# Wandke v. National Railroad Passenger Corporation

> District Court, W.D. Washington · October 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10707164

## Case

- **Court:** District Court, W.D. Washington
- **Decided:** October 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10707164

## How later opinions describe it (automated extraction)

- explaining that the court “assume[s] the facts alleged in the complaint are true . . .”

## Opinion text

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UNITED STATES DISTRICT COURT
6
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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8 DAMAN LEE MICHAEL WANDKE,
9 Plaintiff, Case No. C22-396-MLP
10 v. ORDER
11 NATIONAL RAILROAD PASSENGER
CORPORATION,
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Defendant.
13

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This matter is before the Court on Defendant National Railroad Passenger Corporation’s
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(“Amtrak”) Motion for Judgment on the Pleadings (“Defendant’s Motion”). (Def.’s Mot. (dkt.
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# 20).) Plaintiff Daman Lee Michael Wandke filed an opposition (Pl.’s Resp. (dkt. # 22)), and
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Amtrak filed a reply (Def.’s Reply (dkt. # 24)). Having considered the parties’ submissions, the
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governing law, and the balance of the record, the Court GRANTS in part and DENIES in part
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Defendant’s Motion.
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I. BACKGROUND
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Mr. Wandke alleges that, in December 2019, he reserved an Amtrak trip for Saturday,
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December 21, 2019, from Bellingham, Washington, to Tacoma, Washington, informing Amtrak
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that he would be using a power chair for mobility. (Compl. (dkt. # 1) at ¶¶ 19-20.) The day
1 before the trip, Mr. Wandke spoke to an Amtrak agent who informed him that, due to mudslides
2 in Tacoma, the train would run from Bellingham to Seattle and a bus would take him from
3 Seattle, Washington, to Tacoma. (Id. at ¶¶ 21-22.) The Amtrak agent assured him that, because
4 his reservation included the power chair, accessible transportation from Seattle to Tacoma “had

5 already been arranged” by Amtrak. (Id. at ¶ 23.)
6 On the day of the trip, before Mr. Wandke boarded the train, an Amtrak agent at the
7 Bellingham station “assured Mr. Wandke there would be an accessible bus in Seattle when Mr.
8 Wandke arrived.” (Compl. at ¶ 24.) However, in transit to Seattle, an Amtrak representative
9 informed Mr. Wandke that Amtrak “did not have an accessible bus prepared” but “had arranged
10 for an accessible taxi to take him” to Tacoma. (Id. at ¶ 25.)
11 Mr. Wandke got off the train in Seattle and “waited 20 minutes for his checked luggage
12 in inclement weather.” (Compl. at ¶ 26.) Then, an Amtrak representative said they “would call”
13 for an accessible taxi as it “had not previously been arranged.” (Id. at ¶ 27.) Another power chair
14 user was also waiting for an accessible taxi that Amtrak had told her would take her to her

15 destination, Olympia, Washington. (Id.) The Amtrak representative told Mr. Wandke, and the
16 other power chair user, that Amtrak would call one accessible taxi to transport both of them. (Id.
17 at ¶ 28.) Mr. Wandke told the Amtrak representative that it was not safe to fit two wheelchairs in
18 one taxi. (Id. at ¶ 29.) According to Mr. Wandke, although one passenger could be transferred to
19 a taxi seat and the wheelchair dismantled, remaining in “carefully designed” wheelchairs
20 “allow[s] disabled people to stay in the position that is best for their body and posture.” (Id. at
21 ¶ 30.)
22 Twenty minutes after receiving his luggage and having this exchange with Amtrak
23 representatives—i.e., forty minutes after arriving in Seattle—all ambulatory passengers had left
1 on an Amtrak-provided bus. (Compl. at ¶ 32.) However, the Amtrak representative informed Mr.
2 Wandke and the other power chair user that “it would be at least another [forty] minutes” before
3 the accessible taxi arrived. (Id. at ¶ 31.) Because the other power chair said she had no option
4 other than waiting for Amtrak to provide transportation, Mr. Wandke made other arrangements.

5 (Id. at ¶¶ 33-34.) Mr. Wandke alleges that, with difficulty and some assistance by an Amtrak
6 representative, he then strapped his luggage to his wheelchair and took light rail to a ferry to
7 Bainbridge Island, where his mother picked him up. (Id. at ¶¶ 34-35.) He missed the Tacoma
8 event for which he purchased his Amtrak trip. (Id. at ¶ 35.)
9 Mr. Wandke asserts claims under: (1) Title II of the Americans with Disabilities Act
10 (“ADA”), 42 U.S.C. § 12101, et seq.; (2) Section 504 of the Rehabilitation Act of 1973, 29
11 U.S.C. § 794; and (3) the Washington Law Against Discrimination, RCW §§ 49.60.010, et seq.
12 (Compl. at ¶¶ 40-86.) He seeks an injunction requiring Amtrak to comply with these laws,
13 equitable relief, compensatory and statutory damages, and attorney’s fees and expenses. (Id. at
14 14-15, ¶¶ 1-6.) In the instant motion, Amtrak seeks dismissal of all of Mr. Wandke’s claims.

15 (Def.’s Mot.)
16 II. DISCUSSION
17 A. Motion for Judgment on the Pleadings
18 Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the
19 pleadings after the pleadings are closed. See Fed. R. Civ. P. 12(c). A court “must accept all
20 factual allegations in the complaint as true and construe them in the light most favorable to the
21 non-moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (citation omitted); see
22 also Yakima Valley Mem’l Hosp. v. Wash. State Dep’t of Health, 654 F.3d 919, 925 (9th Cir.
23 2011) (explaining that the court “assume[s] the facts alleged in the complaint are true . . .”).
1 When a Rule 12(c) motion is used as a vehicle for a Rule 12(b)(6) motion after an answer
2 has been filed, or when it is functionally equivalent to a motion to dismiss for failure to state a
3 claim, the same standard applies to both. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192
4 (9th Cir. 1989). “Analysis under Rule 12(c) is substantially identical to analysis under Rule

5 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the
6 complaint, taken as true, entitle the plaintiff to a legal remedy.” Chavez v. United States, 683
7 F.3d 1102, 1108 (9th Cir. 2012) (quotation marks and citation omitted). Dismissal for failure to
8 state a claim “is proper if there is a ‘lack of a cognizable legal theory or the absence of sufficient
9 facts alleged under a cognizable legal theory.’” Conservation Force v. Salazar, 646 F.3d 1240,
10 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
11 1988)).
12 B. Washington Law Against Discrimination Claim
13 Amtrak contends claims under the Washington Law Against Discrimination are
14 preempted by the Amtrak Act. (Def.’s Mot. at 7 (citing 49 U.S.C. § 24301(g)).) Mr. Wandke

15 concedes preemption applies. (Pl.’s Resp. at 13.) Accordingly, the Court concludes this claim
16 should be dismissed.
17 C. ADA and Rehabilitation Act Claims
18 The ADA and the Rehabilitation Act prohibit Amtrak, as a federally-funded public entity,
19 “from discriminating on the basis of disability.” Payan v. Los Angeles Cmty. Coll. Dist., 11 F.4th
20 729, 737 (9th Cir. 2021). To establish a prima facie case of discrimination under either law, Mr.
21 Wandke “must show: (1) he is a ‘qualified individual with a disability’; (2) he was either
22 excluded from participation in or denied the benefits of a public entity’s services, programs, or
23 activities, or was otherwise discriminated against by the public entity; and (3) such exclusion,
1 denial of benefits, or discrimination was by reason of his disability.” Id. at 737-38 (internal
2 quotation marks and citation omitted). “A disability discrimination claim may be based on . . .
3 failure to make a reasonable accommodation.” Id. at 738 (internal quotation marks and citation
4 omitted).

5 Amtrak challenges only the second element, arguing Mr. Wandke “has not pled facts to
6 show he was excluded from participation in or denied the benefits of Amtrak’s services.” (Def.’s
7 Mot. at 5.) Mr. Wandke contends his allegations that Amtrak failed to provide him safe, timely
8 transportation from Seattle to Tacoma suffice. (Pl.’s Resp. at 8.)
9 First, Amtrak contends it offered a reasonable accommodation under emergency
10 circumstances. (Def.’s Mot. at 5-6 (citing Foley v. City of Lafayette, Ind., 359 F.3d 925 (7th Cir.
11 2004)).) In Foley, a plaintiff wheelchair user arrived by train to a station where frigid
12 temperatures rendered both elevators from the platform inoperable and heavy snowfall had
13 covered the ramp from the platform. 359 F.3d at 926-28. The plaintiff “decided his best option
14 was to slowly walk up the stairs. [An] employee . . . assisted [him] by walking alongside and

15 supporting some of [his] weight.” Id. at 928. The Seventh Circuit affirmed the district court’s
16 grant of summary judgment for the defendant, holding that “[i]n such unusual circumstances—
17 heavy snowfall, inoperative elevators, and frigid temperatures—[the employee’s] actions
18 constituted a reasonable emergency accommodation.” Id. at 930. The Seventh Circuit found that
19 although plaintiff identified actions that employees could have taken earlier to fix the elevators
20 or clear snow from the ramp, at most these allegations showed “isolated instances of employee
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1 negligence and not a systemic problem,” and thus, “did not constitute a violation of the ADA.”1
2 Id.
3 Mr. Wandke contends Foley is inapposite because, in Foley, the defendant’s employees
4 promptly and effectively remediated the lack of access, helping the plaintiff up the stairs to a

5 vehicle. (Pl.’s Resp. at 12.) Here, according to Mr. Wandke’s allegations, Amtrak’s emergency
6 accommodation was neither prompt nor effective. Mr. Wandke had already waited forty minutes
7 in the rain when he was told it would be at least another forty minutes. (Compl. at ¶¶ 26, 31, 34.)
8 Although Amtrak argues he could have waited longer, the allegations are that Amtrak failed to
9 transport Mr. Wandke to Tacoma via bus, as it had promised it would do and as it succeeded in
10 doing for ambulatory passengers. (Id. at ¶¶ 32, 49.)
11 Furthermore, in Foley, the emergency situation was caused by the weather. Here, while
12 the initial disruption to train service was caused by mudslides, there is no indication that the
13 mudslides had any impact on the accessible bus that Mr. Wandke alleges Amtrak promised
14 would be waiting for him at the Seattle station. Amtrak asserts in passing that “no accessible bus

15 was available,” but otherwise provides no explanation. (Def.’s Reply at 3.) Amtrak provided a
16 bus for ambulatory passengers. (Compl. at ¶ 32.) There is no indication, at this early stage of the
17 case, that providing an accessible bus was outside Amtrak’s control, unlike the inoperable
18 elevators and snow-covered ramp in Foley. Because the weather emergency does not appear to
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1 The Ninth Circuit has expressed reservations about the Seventh Circuit’s holding that a plaintiff must
show “more than an ‘isolated instance[ ] of employee negligence[.]’” Cohen v. City of Culver City, 754
22 F.3d 690, 700 (9th Cir. 2014) (quoting Foley, 359 F.3d at 930); but see Midgett v. Tri-County Metro.
Transp. Dist. of Oregon, 254 F.3d 846, 850 (9th Cir. 2001) (Regulations establish that “isolated or
23 temporary problems caused by lift malfunctions are not violations of the ADA.”). The issue need not be
resolved in this case because, unlike in Foley, Amtrak has not argued that weather conditions outside of
its control were responsible for its failure to provide accessible transportation.
1 be responsible for the lack of an accessible bus, the Court cannot conclude, as a matter of law,
2 that Amtrak provided a reasonable emergency accommodation.
3 Next, Amtrak argues any failures on its part constituted only minor errors in executing a
4 reasonable plan, citing the Fourth Circuit’s unpublished opinion in Shirey ex rel. Kyger v. City of

5 Alexandria Sch. Bd., 229 F.3d 1143 (4th Cir. 2000) (per curiam). (Def.’s Mot. at 6-7.) Shirey
6 involved two different school evacuations where ADA violations were alleged. Shirey, 229 F.3d
7 at *1. The plaintiff was a schoolchild with a disability who required a full-time aide. Id. During
8 the first evacuation, the plaintiff, “along with a responsible adult and another disabled child, was
9 left in the otherwise evacuated building for approximately seventy minutes.” Id. The Fourth
10 Circuit held that an ADA violation had occurred because “the undisputed facts demonstrate that
11 [the plaintiff] was excluded from safe evacuation procedures.” Id. at *5. “At that time, the
12 School Board had no reasonable plan in place to evacuate disabled children from school
13 buildings during an emergency.” Id.
14 After the plaintiff’s parents complained to the school board that this incident constituted

15 disability discrimination, the parents and the school board reached an agreement to implement an
16 emergency preparedness plan. Shirey, 229 F.3d at *1. During a second evacuation, the plan was
17 largely but not flawlessly followed and, as a result, the plaintiff “was left alone for
18 approximately two minutes.” Id. at *2. The Fourth Circuit held that no ADA violation had
19 occurred during the second evacuation because, “based on the undisputed facts, [the plaintiff]
20 was not excluded from safe evacuation procedures.” Id. at *5. Regarding the two minutes the
21 plaintiff was left alone, the court held that “imperfect execution of an otherwise reasonable
22 evacuation plan [does not constitute] disability discrimination. Minor errors in carrying out the
23 evacuation plan are not a sufficient basis for a discrimination claim.” Id. at *5 n.2.
1 Amtrak contends the instant case more closely resembles the second evacuation in
2 Shirey, because “any delay that was caused by the [accessible] taxi not being at the station at the
3 same time as the bus was available for non-disabled passengers is a mere ‘minor error’ in the
4 overall accommodation[.]” (Def.’s Mot. at 6-7.) Mr. Wandke, in contrast, contends “Amtrak’s

5 transportation plan was unsafe in and of itself.” (Pl.’s Resp. at 10.)
6 According to the allegations in the Complaint, Amtrak’s plan was to have a pre-arranged
7 accessible bus, capable of safely transporting all passengers in wheelchairs, ready at the station
8 when Mr. Wandke arrived. (Compl. at ¶¶ 22-24.) Instead, the Complaint alleges, an accessible
9 taxi capable of safely transporting one person in a wheelchair was forecast to arrive at the station
10 at least an hour and twenty minutes after Mr. Wandke arrived. (Id. at ¶¶ 28-31.) The Court
11 concludes that Mr. Wandke’s allegations reflect more than a minor error in execution of
12 Amtrak’s plan. According to the allegations, Amtrak failed to follow major portions of the plan,
13 such as pre-arranging a bus and having it ready when the train arrived. Unlike in Shirey, where
14 flawed implementation of the plan left the plaintiff alone for two minutes, here Mr. Wandke

15 alleges he was left without transportation for an extended period of time.
16 Amtrak argues a taxi may have been adequate because Mr. Wandke has not alleged that
17 he was incapable of transferring to a taxi seat so his wheelchair could be collapsed. (Def.’s Mot.
18 at 6.) But Mr. Wandke alleges this would be “unsafe.”2 (Compl. at ¶¶ 29, 34.) He further
19 supports this allegation by stating, based on his familiarity with power wheelchairs and
20 accessible vehicles, that accessible taxis “are equipped to secure the wheelchair,” thus allowing
21 “disabled people to stay in the position that is best for their body and posture” by remaining in
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23 2 Amtrak argues Mr. Wandke’s Complaint focused on timeliness, while his brief attempts to shift the
focus to safety. (Def.’s Reply at 2-3.) But the Complaint clearly raises safety issues with an accessible
taxi. (See Compl. at ¶¶ 29, 34.)
1 the wheelchair. (Id. at ¶ 30.) At this stage, the Court must accept Mr. Wandke’s safety related
2 allegations as true.
3 Amtrak further argues that Mr. Wandke has failed to allege what type of vehicle actually
4 arrived at the station, which “may have been a van that could have accommodated both

5 passengers securely in their power chairs.” (Def.’s Mot. at 6.) Amtrak offers no authority for the
6 suggestion that the Court should speculate as to facts not alleged in the Complaint, particularly to
7 speculate in Amtrak’s favor.
8 Accepting all factual allegations in the Complaint as true, and construing them in the
9 light most favorable to Mr. Wandke, he has sufficiently alleged that he was excluded from
10 participation in or denied the benefits of Amtrak’s services. Accordingly, the Court concludes
11 Defendant’s Motion should be denied with regard to the ADA and Rehabilitation Act claims.
12 III. CONCLUSION
13 For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendant’s
14 Motion (dkt. # 20). Mr. Wandke’s claim under the Washington Law Against Discrimination is

15 hereby dismissed.
16 Dated this 14th day of October, 2022.
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A
18 MICHELLE L. PETERSON
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10707164. Public record. Not legal advice.