Jones v. City of Monroe

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Jones v. City of Monroe, Michigan No. 01-2335

ELECTRONIC CITATION: 2003 FED App. 0299P (6th Cir.)

File Name: 03a0299p.06 ON BRIEF: J. Mark Finnegan, HEBERLE & FINNEGAN,

Ann Arbor, Michigan, David F. Grenn, Monroe, Michigan,

for Appellant. Robert D. Goldstein, GARAN, LUCOW,

UNITED STATES COURT OF APPEALS MILLER, SEWARD, COOPER & BECKER, Grand Blanc,

Michigan, Thomas R. Paxton, GARAN, LUCOW, MILLER,

FOR THE SIXTH CIRCUIT SEWARD, COOPER & BECKER, Detroit, Michigan, for

_________________ Appellee.

HELEN JONES, X GIBBONS, J., delivered the opinion of the court, in which

Plaintiff-Appellant, - BATCHELDER, J., joined. COLE, J. (pp. 15-32), delivered

- a separate dissenting opinion.

- No. 01-2335

v. - _________________

>

, OPINION

CITY OF MONROE, MICHIGAN , -

Defendant-Appellee. - _________________

- JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-

- appellant Helen Jones, who has multiple sclerosis, brought

N suit alleging that the municipal parking program of the City

Appeal from the United States District Court of Monroe, Michigan (“Monroe”) violates Title II of the

for the Eastern District of Michigan at Detroit. Americans With Disabilities Act (“ADA”) and Section 504 of

No. 01-71472—John Corbett O’Meara, District Judge. the Rehabilitation Act of 1973. Jones filed a motion for a

preliminary injunction requesting that the district court order

Argued: October 17, 2002 Monroe to modify its parking program to grant Jones free all-

day parking adjacent to her place of employment.

Decided and Filed: August 21, 2003 Specifically, Jones asked that the district court order Monroe

to reserve a free parking space for Jones adjacent to her office

Before: BATCHELDER, COLE, and GIBBONS, Circuit or to cease ticketing Jones when she parks in a designated

Judges. one-hour parking space for the entire work day. The district

court denied Jones’s motion for a preliminary injunction on

_________________ the ground that she failed to establish a likelihood of success

on the merits. Jones appeals this order. For the reasons set

COUNSEL forth below, we affirm the district court’s denial of a

preliminary injunction.

ARGUED: J. Mark Finnegan, HEBERLE & FINNEGAN,

Ann Arbor, Michigan, for Appellant. Robert D. Goldstein,

GARAN, LUCOW, MILLER, SEWARD, COOPER &

BECKER, Grand Blanc, Michigan, for Appellee.

1

No. 01-2335 Jones v. City of Monroe, Michigan 3 4 Jones v. City of Monroe, Michigan No. 01-2335

I. basis of disability in violation of federal law.1 In conjunction

with filing her complaint, Jones sought a preliminary

Jones suffers from multiple sclerosis, an incurable, usually injunction. On June 15, 2001, the district court held a hearing

progressive disease. Her disability affects her sight, balance on Jones’s motion for a preliminary injunction. On

and ability to walk. Jones customarily uses a wheelchair, August 28, 2001, the district court denied Jones’s motion for

although on occasion she walks for short distances with the a preliminary injunction on the basis that Jones had failed to

use of a cane. Jones is employed by the Salvation Army establish a likelihood of success on the merits of her claim.

Harbor Light (“Salvation Army”) as a substance abuse

counselor for deaf and hard-of-hearing clients. The Salvation This timely appeal followed.

Army is located in downtown Monroe.

II.

Because the building which houses the Salvation Army’s

offices lacks private parking spaces, Jones must either park in On appeal, Jones argues that the district court erred in

a space provided by Monroe or in a private commercial refusing to enjoin Monroe’s allegedly discriminatory parking

parking area. Monroe has several parking areas that provide policies and require that Monroe cease ticketing Jones when

free parking in the downtown vicinity. One such parking area she parks in a designated one-hour parking space or provide

is immediately adjacent to the downtown Monroe business Jones with a free all-day parking space adjacent to her office

district as well as Jones’s office. These free parking spaces, pending a final resolution on the merits. This court reviews

however, are each limited to one-hour parking only. Several a lower court’s decision on whether to grant a preliminary

parking spaces designated for disabled users are located in injunction for an abuse of discretion. Taubman Co. v.

this one-hour parking area. These spaces are similarly limited Webfeats, 319 F.3d 770, 774 (6th Cir. 2003); In re DeLorean

to one-hour parking. Monroe also provides free all-day Motor Co. v. DeLorean, 755 F.2d 1223, 1228 (6th Cir. 1985).

parking in several lots located within two blocks of Jones’s The district court’s determination will be disturbed only if the

office. According to Jones, she is not able to walk from any district court relied upon clearly erroneous findings of fact,

of these free all-day parking lots to her office due to her improperly applied the governing law, or used an erroneous

disability. legal standard. Nightclubs, Inc. v. City of Paducah, 202 F.3d

884, 888 (6th Cir. 2000) (quoting Connection Distrib. Co. v.

On numerous occasions Jones has parked her car in a one- Reno, 154 F.3d 281, 288 (6th Cir. 1998)). Under this

hour parking space adjacent to her office for the duration of standard, we must review the district court’s legal conclusions

a work day. Monroe has issued Jones dozens of parking de novo and its factual findings for clear error. Taubman, 319

tickets based on her violations of the one-hour time limitation. F.3d at 774.

Jones displays a handicapped parking permit on her vehicle,

but Monroe contends that the permit does not allow her to

violate the one-hour time limitation. 1

The original complaint contained three counts. Count one sought

individual relief for Jones relating to Monro e’s failure to mod ify its

On April 16, 2001, Jones brought suit alleging that downtown parking program to allow Jone s to participate. Counts two and

Monroe’s refusal to modify its municipal parking program three related to class-wide claims under federal law a nd M ichigan law

constitutes unlawful and intentional discrimination on the respe ctively. Counts two and three of the original complaint were

abandoned in an amended complaint filed by Jones on November 27,

2001. Count one remains.

No. 01-2335 Jones v. City of Monroe, Michigan 5 6 Jones v. City of Monroe, Michigan No. 01-2335

When considering a motion for preliminary injunction, the Monroe’s alleged discrimination in refusing to provide Jones

district court should consider four factors: (1) whether the with “meaningful access” to the parking program and refusing

moving party has a strong likelihood of success on the merits; to grant her a reasonable accommodation.

(2) whether the moving party will suffer irreparable injury

without the injunction; (3) whether the issuance of the Jones alleges that Monroe’s parking program violates Title

injunction would cause substantial harm to others; and II of the ADA,3 which provides that “no qualified individual

(4) whether the public interest would be served by issuance of with a disability shall by reason of such disability be excluded

the injunction. Nightclubs, Inc., 202 F.3d at 888. The four from participation in or denied the benefits of the services,

considerations applicable to preliminary injunction decisions programs, or activities of a public entity, or be subjected to

are factors to be balanced, not prerequisites that must be met. discrimination by any such entity.” 42 U.S.C. § 12132.

DeLorean, 755 F.2d at 1228. Moreover, a district court is not Section 12131 defines “qualified individual with a disability”

required to make specific findings concerning each of the four as “an individual with a disability who, with or without

factors used in determining a motion for preliminary reasonable modifications to rules, policies, or practices . . .

injunction if fewer factors are dispositive of the issue. Id.; meets the essential eligibility requirements for receipt of

Mascio v. Public Employees Retirement Sys. of Ohio, 160 services or the participation in programs or activities provided

F.3d 310, 312 (6th Cir. 1998) (affirming the district court’s by a public entity.” 42 U.S.C. § 12131. The ADA’s

grant of a preliminary injunction based on the district court’s prohibition of discrimination in services, programs, or

conclusion that the plaintiff had demonstrated a substantial activities “encompasses virtually everything a public entity

likelihood of success on the merits). does.” Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.

1998). To make out a prima facie case under Title II of the

Jones argues that the district court erred in finding that ADA, a plaintiff must establish that (1) she has a disability;

Monroe’s parking program complies with federal law and (2) she is otherwise qualified; and (3) she is being excluded

thereby concluding that Jones had failed to establish a from participation in, being denied the benefits of, or being

likelihood of success on the merits of her claim.2 Jones subjected to discrimination under the program solely because

further claims that the district court erred in failing to address of her disability. See Kaltenberger v. Ohio College of

Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998); see also

Burns v. City of Columbus, 91 F.3d 836, 841 (6th Cir. 1996)

2

Jones also argues that the district court’s order fails to comply with

(setting forth the prima facie case under the Rehabilitation

the requirements of Rule 52 of the Federal Rules of Civil Procedure. Act); Doe v. University of Maryland Med. Sys. Corp., 50 F.3d

Despite the somewhat cursory nature o f the district court’s legal analysis, 1261, 1265 (4th Cir. 1995) (finding that in order to establish

we find that the district court’s order complies with the requirements of disability discrimination under Title II of the ADA, a plaintiff

Rule 52. Moreover, the district court’s opinion is adequate to allow this must prove: (1) that he has a disability; (2) that he is

court to review the denial of the preliminary injunction. Even if this court

concluded that the district court’s findings of fact and conclusions of law

are inadequate under Rule 52, it would be unnecessary to remand the case

because the record is exceptionally clear. See Urbain v. Knapp Bro. Mfg. 3

Co., 217 F.2d 810, 816 (6th Cir. 1954 ); see also Da vis v. New York City For purposes of this case, there are no relevant differences between

Hous. Auth., 166 F.3d 43 2, 436 (2d Cir. 199 9); White v. Carlucci, 862 Title II of the ADA and S ection 504 of the Rehabilitation Act. Therefore,

F.2d 1209, 12 11 fn. 1 (5th Cir.1989 )). In addition, b oth parties agree that a separate ana lysis of Jones’s Se ction 5 04 claim is unn ecessary. See

the record is complete and that this court can address the issue of the McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459,

injunction witho ut remand for further proceed ings. 460 (6th Cir.1997) (en banc).

No. 01-2335 Jones v. City of Monroe, Michigan 7 8 Jones v. City of Monroe, Michigan No. 01-2335

otherwise qualified for the benefit in question; and (3) that he parking in the current one-hour spaces would thus have a

was excluded from the benefit due to discrimination solely on negative impact on downtown businesses.

the basis of the disability).

In specific locations a short distance away from the one-

The district court did not address whether Jones is disabled hour parking, Monroe has also provided the benefit of free

or whether she was otherwise qualified for the benefit in long-term, all-day parking to all individuals who come

question. Instead, the district court concluded that Monroe is downtown, for whatever reason. While the all-day parking is

not excluding Jones from participating in or denying her the not provided for the specific benefit of individuals who work

benefits of the parking system. In evaluating the correctness downtown, they are free to use it.

of this conclusion, we must first examine the nature of the

benefit offered by Monroe.4 Initially, we note that the benefit Access to the one-hour and all-day parking places is

is not appropriately defined as free downtown parking facially neutral. The one-hour limit applies to individuals

generally, but rather as the provision of all-day and one-hour with disabilities and those without disabilities. Similarly,

parking in specific locations. See Alexander v. Choate, 469 both disabled and able-bodied persons may park in all-day

U.S. 287, 303 (1985) (holding that “adequate health care” was parking. Both one-hour and all-day parking areas have spaces

too “amorphous” a concept to define the government service for disabled and nondisabled individuals.5 The parking

or benefit to which disabled persons may assert a statutory limitations do not affect disabled and nondisabled individuals

right of access and accommodation).

In the one-hour parking area specifically addressed by

Jones, Monroe is offering the benefit of free short-term

parking to individuals who wish to transact retail or other

business in the downtown business district. The short-term, 5

Jones argues on appeal that she lacks m eaning ful access to the free

one-hour nature of the benefit is designed to help downtown all-day parking spaces because the spaces fo r the disa bled are no t in

businesses by making parking spaces in close proximity to compliance with the AD A minimum construction and de sign standards.

them more readily available. Monroe quite logically has These standards address issues such as proper signage, width of parking

determined that downtown shopping and other downtown spaces, and slope of parking spaces. Jones’s claim of denial of a benefit,

business activities are discouraged when patrons cannot easily however, does not arise from any design and construction flaws in the all-

day parking, because Jones admits that she would not use any of the free

obtain parking places close to their destination. All-day all-day parking spaces regardless of the alleged design flaws due to the

distance of the parking spaces from her place of employm ent. The district

court’s opinion is limited to Jones’s request, for herself only, that the

4

court “force the City of Monroe to return to its former policy of not

W e decline to rea ch any c onclusions regard ing whether Jones has ticketing the Plaintiff when she leav es her car in a one hour parking space

a disability and whether she is otherwise qualified. Instead, we assume for the entire work day . . . . Or have the City of Monroe reserve a free

for the sake of this opinion that she meets the first two elements of her accessible parking space on the street next to her office.” Jones did not

prima facie case and address only the third element: whether she was seek injunctive relief for other disabled ind ividuals based on lack of

excluded from p articipa tion in or denied a b enefit on the b asis of her meaningful access. In addition, Jones did not request injunctive relief in

disab ility. See Henrietta D. v. Bloom berg, Nos. 02-7022/7074, 2003 WL the form of forcing Monroe to bring the free all-day parking spaces into

21308851, at 13-14 (2 d Cir. June 9, 20 03) (noting that “[a]n ADA compliance with the applicable construction and design standards. For

plaintiff must demonstrate that a den ial of benefits occurs ‘by reason of purposes of this appeal, therefore, any noncompliance with standards in

. . . disability.’” (quotation omitted)). constructing these spaces is im material.

No. 01-2335 Jones v. City of Monroe, Michigan 9 10 Jones v. City of Monroe, Michigan No. 01-2335

differently in any respect.6 Thus, the district court did not err Contrary to the dissent’s argument that the Supreme

in determining that Jones was not excluded from parking Court’s opinion in Choate supports a finding of

benefits offered by Monroe. discrimination, a proper application of Choate requires a

finding that Jones has not been denied meaningful access to

The dissent repeatedly states that Jones is excluded from the parking benefit provided by Monroe. In Choate,

the benefit of free downtown parking. However, the dissent Medicaid recipients sued the State of Tennessee for

fails to explain how Jones is denied this benefit. Jones has declaratory and injunctive relief when the state decided to

equal access to the free downtown parking, and she can park reduce, from twenty to fourteen, the number of inpatient

there if she chooses. While the dissent claims to define the hospital days that state medicaid would pay hospitals on

benefit at issue as “free downtown parking,” the dissent later behalf of a medicaid recipient in each year. 469 U.S. at 289.

identifies the benefit as the ability “to park for free all-day in The medicaid recipients argued that the fourteen-day rule

spaces that allow them meaningful access to their denied them meaningful access to Medicaid services in

destination.” The dissent thus conflates meaningful access to Tennessee in violation of the Rehabilitation Act. Id. at 301-

downtown parking with meaningful access to an individual’s 02. The Court noted that the fourteen-day limitation would

destination of choice. When applied to the facts of the instant not deny the medicaid recipients meaningful access to

case, it is apparent that the dissent is defining the benefit at Medicaid or exclude them from those services. Id. at 303.

issue as the latter and not the former. Jones has equal access The Court held that the benefit provided was the “individual

to free downtown parking. She does not have free downtown services offered” and not the amorphous objective of

parking accessible to any destination she selects or, ‘adequate health care.’” Id. The Court further stated that the

unfortunately, her workplace. The benefit that Monroe is State is not required to alter the definition of the benefit

providing to all of its citizens, including Jones, is free offered “simply to meet the reality that the handicapped have

downtown parking at specific locations; it is not free greater medical needs.” Id. According to the Court, “[t]he

downtown parking that is accessible to wherever a citizen, Act does not . . . guarantee the handicapped equal results from

disabled or non-disabled, chooses to go or work.7 the provision of state Medicaid, even assuming some measure

of equality of health could be constructed.” Id. at 305.

6

Recently, in Henrietta D., the Sec ond Circuit noted that under the Jones has access to the service offered by Monroe - free

ADA “there m ust be some thing different about the way the p laintiff is downtown parking in specific locations. She does not have a

treated ‘by reason of . . . disability.’” 2003 WL 21308851, at 12 (quoting right to free downtown parking that allows her access to her

42 U.S.C. § 12132). In the instant case, Jones has not been treated destination of choice. The reality of Monroe’s free downtown

differently from no n-disab led individuals or de nied any benefit. parking system is that not every person is going to have

7

The dissent sets forth a lengthy hypothetical purp orting to illustrate

the distinction between what the dissent perceives to be the essence of

Jones’s claim (that she is being denied the benefit of free all-day parking),

and what the majority perceives to be the essence of Jones’s claim (that

the ADA requires Monroe to provide Jones with an all-day parking space

in the location she requests). The hypothetical is distinguishable because

it involves a case where the disabled individual has no access to the

service or benefit by reason of his or her disability, and the o nly available is not denied access to the benefit, and there are alternative

accommodation is the waiver of the city’s rule. In the present case, Jones accom mod ations available to Jo nes.

No. 01-2335 Jones v. City of Monroe, Michigan 11 12 Jones v. City of Monroe, Michigan No. 01-2335

access to his or her workplace or other destination of choice.8 making the modifications would fundamentally alter the

Monroe provides the benefit of free downtown parking at nature of the service, program or activity.

specific locations, and these locations will necessarily be

more accessible to some workplaces than others. As the 28 C.F.R. § 35.130(b)(7).

Choate Court noted, however, equal results from the

provision of the benefit, even assuming equal results could be Jones describes her requested accommodation as “allowing

achieved, are not guaranteed. Id. at 305. The dissent claims her to park in one of the 11 parking spaces” adjacent to her

that “Jones has never taken the position that she should be office. By contrast, Monroe describes Jones’s requested

able to park wherever she wants.” Yet, that is precisely the accommodation as “immunity from prosecution for her

logical result of defining the benefit provided as meaningful violations of Monroe’s neutral parking and enforcement

access to one’s destination of choice. ordinances.” Any accommodation on the part of the entity

only needs to be “reasonable.” Johnson v. City of Saline, 151

The essence of Jones’s position is that the ADA requires F.3d 564, 571 (6th Cir. 1998). An accommodation is not

Monroe to provide her an all-day parking place in the exact reasonable if it imposes a fundamental alteration in the nature

location she requires. Under the ADA, Jones’s individualized of the program. See 28 C.F.R. § 35.130. The public entity

need for a particular spot is most appropriately considered in bears the burden of proving that the accommodation would

determining whether permitting her to park all day in a one- fundamentally alter the program. Popovich v. Court of

hour parking place adjacent to her office is a reasonable Common Pleas Domestic Relations Div., 227 F.3d 627, 639

accommodation which Monroe must make. The district court (6th Cir. 2000), rev’d on other grounds, 276 F.3d 808 (6th

did not specifically rule on this issue in determining that Cir. 2002) (en banc). In cases involving waiver of applicable

Jones had not established a likelihood of success on the rules and regulations, the overall focus should be on “whether

merits. As noted previously, a “qualified person with a waiver of the rule in the particular case would be so at odds

disability” is “an individual with a disability who, with or with the purposes behind the rule that it would be a

without reasonable modifications to rules, policies or fundamental and unreasonable change.” Dadian v. Village of

practices ... meets the essential requirements for receipt of Wilmette, 269 F.3d 831, 838-39 (7th Cir. 2001) (quoting

services or the participation in programs or activities provided Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181

by a particular entity.” 42 U.S.C. § 12131. The applicable F.3d 840, 850 (7th Cir. 1999)).

regulations interpreting Title II state as follows:

The purpose of the one-hour limitation is to encourage

A public entity shall make reasonable modifications in patrons to shop at downtown businesses. Waiver of the

policies, practices, or procedures when the modification ordinance limiting parking to one hour in the business district

is necessary to avoid discrimination on the basis of would be “at odds” with the fundamental purpose of the rule.

disability, unless the public entity can demonstrate that By its very nature, the benefit of one-hour free public parking

cannot be altered to permit disabled individuals to park all

day without jeopardizing the availability of spaces to other

8 disabled and nondisabled individuals. Such a waiver would

The dissent would create a rule under which, if Monroe provides

free parking anywhere in the city, it could arguably be required to provide also require Monroe to cease enforcement of an otherwise

free parking to disabled individuals anyw here in the city they choose to

go. Und er the d issent’s logic, access to free parking could arguably be

extended to individuals other than those traveling to down town locations.

No. 01-2335 Jones v. City of Monroe, Michigan 13 14 Jones v. City of Monroe, Michigan No. 01-2335

valid ordinance, which by its very nature requires a III.

fundamental alteration of the rule itself.9

For all the reasons set forth above, we affirm the district

In addition, the record contains evidence of alternative court’s denial of preliminary injunctive relief.

accommodations available to Jones such as a service which

will pick her up at any Monroe parking lot, based on a

schedule constructed personally for Jones, and take her to the

door of her office building. Accordingly, Jones’s requested

modification, whether characterized as assignment of a

particular parking location or immunity from prosecution, is

not a reasonable accommodation required under the ADA.

The district court’s failure to discuss this issue therefore does

not render its denial of the preliminary injunction an abuse of

discretion.

Because the district court did not rely upon clearly

erroneous findings of fact, improperly apply the governing

law, or use an erroneous legal standard, it did not err in

denying Jones’s request for a preliminary injunction.

9

The dissent relies heavily on the Supreme Court’s opinion in PGA

Tour, Inc. v. Ma rtin, 532 U.S. 661 (2001 ), in concluding that the

modification requested by Jones is not a fundamental alteration. In

Ma rtin, the Court first determined that the requested modification, waiver

of the walking requirement, might co nstitute a fundamental alteration by

(1) altering an essential aspect of the game so that it would be

unacceptable even if it affected all competitors equally, or (2) altering an

aspect of the game that has only a peripheral impact, but nevertheless

gives a disab led player an adva ntage o ver others thereby fundam entally

altering the character of the co mpe tition. Id. at 682. The Court concluded

that the “use of carts is not itself inconsistent with the fundamental

character of the game of golf,” because “the essence of the game has been

shotm aking.” Id. at 683. Parking, however, is hardly analogous to the

game of go lf. Mo reover, the essential element of a one-hour free public

parking area is the time limitation on an individua l’s ability to use a

designated space to park his or her vehicle. Alteratio n of the tim e limit

on spaces designated for one-hour parking is a fundamental alteration of

the parking scheme.

No. 01-2335 Jones v. City of Monroe, Michigan 15 16 Jones v. City of Monroe, Michigan No. 01-2335

_______________ I. Facts

DISSENT Jones works as a substance abuse counselor for deaf and

_______________ hearing-impaired individuals. Her multiple sclerosis causes

tremors in her arms and legs, and results in severe fatigue.

R. GUY COLE, JR., Circuit Judge, dissenting. The She is not capable of walking long distances and therefore

majority opinion errs in its application of the ADA to the relies on a wheelchair. Jones’s wheelchair, however, is a

facts of this case, applying the statute in a manner that manual model, and the exertion required to move long

essentially eviscerates the ADA’s purpose and renders the distances can also cause her significant fatigue. Jones is able

ADA impotent in its ability to provide recourse for disabled to drive her car, but she is not able to get her wheelchair in

individuals, such as Helen Jones, who face a form of and out of the car by herself. Thus, her practice has been to

discrimination which Congress has explicitly prohibited. park in one of the parking spaces adjacent to her building and

Accordingly, I respectfully dissent. walk across the sidewalk to the building, where she has left

her wheelchair at the door.

The majority correctly sets out the three elements of a

prima facie case of discrimination under Title II of the ADA. Jones’s symptoms become more pronounced as the day

A plaintiff must establish that she: (1) has a disability; (2) is progresses. As her fatigue increases, she can lose the fine

otherwise qualified to benefit from the public program; and motor skills necessary to communicate with her deaf clients.

(3) is unable to do so as a result of her disability. In addition, Jones is unable to walk across an intersection in

Kaltenberger v. Ohio Coll. of Pediatric Med., 162 F.3d 432, the time that it takes for the light to change, and is unable to

435 (6th Cir. 1998). In my view, Jones has established her stand, unassisted, on a sidewalk for more than five minutes.

prima facie case, and Monroe is thus required to Jones’s treating physician has testified that Jones should

accommodate Jones’s disability by making “reasonable avoid any unnecessary stress and exertion.

modifications” so long as these modifications would not

“fundamentally alter the nature of the service, program or Monroe provides free day-long parking in several

activity.” 28 C.F.R. § 35.130(b)(7). municipal lots throughout downtown. Other individuals

employed in Jones’s office building are able to utilize this

Monroe does not dispute that Jones has a disability. service to access their workplace. Within two blocks of

Accordingly, in order to hold that Jones does not have a Jones’s workplace are several municipal lots providing a total

reasonable likelihood of success on the merits, we must find of 373 free spaces where individuals are able to park for the

either: (1) that she was not otherwise qualified to benefit from entire day. Of these 373 spaces, sixteen have been designated

the public service or program and thus does not meet the as handicapped spaces.

second element of the prima facie case; (2) that she is able to

receive the benefit despite her disability and thus does not Monroe has limited parking to one hour at an additional

meet the third element of the prima facie case; or (3) despite 110 free parking spaces in the retail district, where Jones

establishing a prima facie case, the modification Jones seeks works. This time limitation is intended to allow for patron

would fundamentally alter the nature of the service or parking and to discourage employees from using these

program provided by Monroe. particularly convenient spaces. There are eleven such spaces

adjacent to Jones’s building. The closest space is twenty-one

No. 01-2335 Jones v. City of Monroe, Michigan 17 18 Jones v. City of Monroe, Michigan No. 01-2335

feet from the entrance to her building; the farthest is sixty-five III. Whether Jones is a Qualified Individual with a

feet. The closest handicapped space in one of the free day- Disability

long lots provided by Monroe is 592 feet from the building –

a distance far too great for Jones to manage. Monroe argues that Jones is not a qualified individual with

a disability because she is not a person who is contemplated

The majority notes that the record contains evidence of an to be served by Monroe’s one-hour parking ordinance. As

alternative accommodation for Jones, stating that she can be such, she is not protected by the ADA.

picked up at any Monroe lot and taken to the door of her

building. This accommodation is not a viable option for It is incorrect, however, to address the benefit that Jones

Jones. She often works odd hours, including well into the claims she is being denied as though it revolves around the

evening, frequently on short notice, and this transit service one-hour parking ordinance. Jones has never complained that

requires at least twenty-four hours notice to schedule a pick- she is being denied the benefit of this one-hour ordinance.

up for a disabled individual. In addition, the service stops Jones argues that Monroe provides all individuals the benefit

running at 5:30 p.m. The Salvation Army has provided its of free downtown parking, and this is undisputed. The one-

own van on occasion to transport her to and from the lots to hour ordinance is only relevant insofar as it prevents Jones

her work, but reliance on this private accommodation–which from enjoying the benefit of the free all-day downtown

is not provided by Monroe–is misplaced. Moreover, this parking program. Therefore, while the one-hour ordinance

option is no longer available because the Salvation Army van may be relevant to whether Jones’s requested modification is

is not wheelchair accessible, and its driver was seriously a fundamental alteration, it is wholly inapplicable to the

injured trying to help Jones out of the vehicle. question of whether she is a qualified individual with a

disability.

II. Standard of Review

The majority concludes that “[t]he essence of Jones’s

The majority states that we are to review the district court’s position is that the ADA requires Monroe to provide her an

judgment for an abuse of discretion. It is true that this Court all-day parking space in the exact location she requires.”

generally reviews decisions on whether to grant a preliminary However, this is not the essence of her claim. Jones has never

injunction for an abuse of discretion. See McPherson v. Mich. taken the position that she should be able to park wherever

High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997). she wants. The “essence” of her claim is that because Monroe

However, if pure legal conclusions are involved, we review provides free and accessible all-day parking for everyone else,

the judgment of the district court de novo. See id. (stating it cannot effectively deny her the benefit of this parking

that, in an appeal of a ruling on a preliminary injunction, program because of her disability.

factual findings are reviewed for clear error, and legal rulings

are reviewed de novo). Jones does not dispute any factual A hypothetical example may serve to illuminate this issue.

findings made by the district court. Whether the ADA Suppose that a city provides the service of a public library for

requires Monroe to provide Jones with the requested the enjoyment of its citizens. The library has three separate

modification of its parking policy is strictly a legal question. entrances, East, West, and South, all of which are equipped

Therefore, we are not to give deference to the judgment of the with wheelchair ramps. The wheelchair ramp at the South

district court. entrance is slightly wider than the other two. A certain

disabled individual, Ms. Smith, enjoys utilizing the library,

No. 01-2335 Jones v. City of Monroe, Michigan 19 20 Jones v. City of Monroe, Michigan No. 01-2335

just as all other disabled and able-bodied individuals are able ADA when she seeks access to the library itself rather than

to do. Unfortunately for Smith, her particular disability access to Kiddies Land.1

requires her to use a specially designed wheelchair that is

larger than other wheelchairs, and she therefore cannot access The Technical Assistance Manual for Title II of the ADA

the library through the East or West entrance. sheds further light on the issue of whether Jones is “otherwise

qualified.” The manual confronts the question of whether

After some time, the city decides that it has to do more to accommodations such as freight elevators can be used to

encourage children to read, and so it converts the South wing satisfy the program accessibility requirements. See ADA

of the library to “Kiddies Land,” where there are many TECHNICAL ASSISTANCE MANUA L II-5.1000 (1993). The

activities designed to develop children’s interest in reading. manual states that such arrangements are permissible, as a last

The city has determined that this plan is beneficial because it resort, so long as the passageways remain reasonable in

serves not only to encourage children to read, but also to length, fairly well lit, and generally clean. See id. The

increase the revenues generated by the library. Additionally, argument asserted by Monroe, however, inescapably conflicts

the city has decided that in order to reap the full benefits of with the manual. By Monroe’s logic, a disabled individual

Kiddies Land, adult patrons may not use the South wing. As would not be permitted to use a freight elevator because the

a result, Smith requests that she be permitted to use the South freight elevator is not intended to transport members of the

entrance without being subject to the monetary fine the city public. Therefore, the disabled individual would not be

has decided to impose on adults who enter the South wing. “otherwise qualified.” The example in the Technical

The city rejects her request. Nevertheless, Smith continues to Assistance Manual exposes the flaw in this logic. It is

access the library through the South entrance, and is severely therefore clear that Jones has satisfied the second element of

fined each time she does so. her prima facie case by demonstrating that she is otherwise

qualified to benefit from the program.

Smith sues under the ADA, arguing that the city is

providing a service, in the form of a public library, that she is IV. Whether Jones is Able to Benefit from the Parking

denied the benefit of using due to her disability. She requests Program

that the reasonable modification be made to allow her to use

the South entrance. In such a situation, it would make no The majority asserts that Jones has equal access to the free

sense for the court to hold that Smith is not a qualified downtown parking, that she can park there if she chooses, and

individual with a disability because the South wing of the that she therefore is not denied the benefit provided by

library is intended for the benefit of children. Smith is not

complaining that she is not allowed to use Kiddies Land. She 1

is complaining that, due to her rare disability, she is denied The majo rity’s attemp t to distinguish this hypothetical example from

access to the entire library. The use of the South entrance is Jones’s case is inapposite. While the majority may assume that Jones has

satisfied the second element of her prima facie case, Monroe argues that

merely the reasonable modification she proposes in order to she has not. I put forth this hypothetical illustration to demonstrate the

have the same library access as other citizens. The city may futility of Monroe’s argument that Jones is not otherwise qualified to

argue that permitting Smith access through the South wing benefit from the parking progra m. By stating that S mith’s case is

would fundamentally alter Kiddies Land. It cannot be said, different from Jon es’s because Jones is not denied access to the b enefit,

however, that Smith is not a qualified individual under the the majority is attempting to demonstrate why Jones does not meet the

third element of her prima facie case - a question I address in Part IV of

this opinion, but do not intend to address in this illustration.

No. 01-2335 Jones v. City of Monroe, Michigan 21 22 Jones v. City of Monroe, Michigan No. 01-2335

Monroe. While it is true that she may park in the free all-day The majority cites Choate in support of the proposition that

lot if she chooses to do so, this does not mean that she has the “the benefit is not appropriately defined as free downtown

“meaningful access” that the ADA requires. See Alexander parking generally, but rather as the provision of all-day and

v. Choate, 469 U.S. 287, 301 (1985) (noting that an otherwise one-hour parking in specific locations.” This does not clarify

qualified handicapped individual must be provided with precisely how the majority is defining the benefit, which is

meaningful access to the benefit offered). For Jones to be critical to this case. The provisions for all-day parking and

able to benefit from Monroe’s parking program, she needs to one-hour parking are two separate and clearly distinct

be able to have access to the locations which non-disabled provisions. Jones only claims that she is denied the benefit of

individuals can access from these parking lots. The majority the former.

accuses me of conflating meaningful access to downtown

parking with meaningful access to an individual’s destination In Choate, the Court explicitly addressed the issue of

of choice. However, I do not believe that Jones has the right defining the benefit, and made clear that the approach the

to meaningful access to her destination of choice. I do not majority takes here is impermissible. It stated, “The benefit

contend that, if Monroe provides free parking anywhere in the itself, of course, cannot be defined in a way that effectively

city, it must provide free parking to disabled individuals denies otherwise qualified handicapped individuals the

anywhere in the city they choose to go. Of course, to the meaningful access to which they are entitled; to assure

extent that free, accessible parking is not provided for non- meaningful access, reasonable accommodations in the . . .

disabled individuals, it need not be provided for anyone. I do, benefit may have to be made.” 469 U.S. at 301. The Court

however, believe that she has the right to the benefit of also noted that “[a]ntidiscrimination legislation can obviously

meaningful access to those locations that–but for her be emptied of meaning if every discriminatory policy is

disability–would be accessible to her through Monroe’s ‘collapsed’ into one’s definition of what is the relevant

parking program. I am not conflating this benefit with free benefit.” Id. at 301 n.21.

downtown parking. Rather, the majority’s attempt to separate

the two is artificial. Parking is only meaningful insofar as it In determining that the benefit provided in Choate was

provides individuals with access to their destinations. “individual services offered,” rather than the more amorphous

benefit of “adequate health care,” the Court noted that “[t]he

Returning to the hypothetical illustration, if Ms. Smith were 14-day limitation will not deny [the disabled individuals]

to gain access to the library, only to find that all of the books meaningful access to Tennessee Medicaid services or exclude

were placed on shelves too high for her to reach from her them from those services.” Id. at 302-03. In contrast, Jones

wheelchair, the city would be required to accommodate her is clearly denied meaningful access to parking services, as the

and make sure that she had access to the books she could not only spaces she is permitted to use are inaccessible to her.

reach. Entry into the library is only meaningful because it Unlike the plaintiffs in Choate, Jones is therefore altogether

provides individuals with access to the books the library excluded from meaningful access to the service.

contains. Under the majority’s logic, if Smith were to argue

that the ADA requires that she be given access to the high- The Choate Court also explained, “The reduction in

shelved books, she would be conflating access to the library inpatient coverage will leave both handicapped and

with access to the books of her choice. nonhandicapped Medicaid users with identical and effective

services fully available for their use, with both classes of

users subject to the same durational limitation.” Id. While

No. 01-2335 Jones v. City of Monroe, Michigan 23 24 Jones v. City of Monroe, Michigan No. 01-2335

the durational limitations in the one-hour spaces are certainly parking program only because it allows them access to their

identical for both classes of individuals, in the present case, “destination of choice.” It may be true that Monroe’s

unlike Choate, the durational limitation in and of itself is not downtown parking system requires that not every person is

the problem. Rather, the problem here is that the durational going to have access to his or her own workplace. However,

limitation renders Jones unable to take advantage of a benefit it is equally true that Monroe’s downtown parking system

clearly distinct from the durational limitation, that is, free and provides parking that would be accessible to Jones but for her

accessible, all-day downtown parking. disability. The analysis is straightforward. Jones is denied

the relevant benefit because, if Jones did not have multiple

Lastly, in Choate, “[t]he 14-day limitation . . . [did] not sclerosis, she would be provided with free all-day parking that

exclude the handicapped from or deny them the benefits of gives her access to the building where she works. Because

the 14 days of care the State [chose] to provide.” Id. In she has multiple sclerosis, she is not provided with that

contrast, Jones is excluded from the benefits of free and benefit. There is no question, therefore, that she satisfies the

accessible downtown parking because her disability prevents third element of her prima facie case, that is, she is unable to

her from utilizing the all-day spaces Monroe chose to provide benefit from the public program because of her disability.

altogether.

V. Whether the Requested Modification is

It is true that the Supreme Court noted that “Medicaid Unreasonable or Fundamentally Alters the Nature of

programs do not guarantee that each recipient will receive that the Service Provided

level of health care precisely tailored to his or her particular

needs,” id. at 303, but an attempt to claim that Jones is The majority also finds that to permit Jones to park in one

likewise not guaranteed a parking space precisely tailored to of the spaces adjacent to her building would fundamentally

her particular needs is wholly unpersuasive. A fair reading of alter the nature of the service Monroe provides. The majority,

Choate indicates that the Supreme Court would have found a however, points to nothing about the requested modification

violation of the Rehabilitation Act if Tennessee’s actions had that would fundamentally alter the service in any way, other

the effect of completely denying any individual access to than merely pointing out that the requested modification is a

inpatient care. Here, Jones is denied access to all possible change. But this is precisely what the governing statutes

parking spaces, whether by reason of her disability or require. If courts were permitted to hold, as the majority does

Monroe’s one-hour restriction. Thus, the difference between here, that any “modification” fundamentally alters the service

the services provided for others and the services provided for because it requires that the service be “modified,” the

Jones is a difference in kind, and not merely degree. She is Rehabilitation Act and the ADA would be rendered

completely denied an effective parking space, and the ineffectual. It is worth restating that Jones does not complain

language in Choate suggests that the Court would not have that she is being denied the benefit of the one-hour parking

countenanced this type of discrimination. Thus, a proper ordinance. Our analysis requires us to consider whether the

application of Choate compels finding for Jones. modification Jones requests fundamentally alters the program

or service of which she is denied the benefit. Accordingly, it

The majority’s position is that Jones has access to is not proper to analyze the fundamental-alteration question

downtown parking just as nondisabled individuals do. This based on whether the one-hour ordinance is fundamentally

argument ignores the fact that other individuals who work in altered.

downtown Monroe are able to benefit from Monroe’s free

No. 01-2335 Jones v. City of Monroe, Michigan 25 26 Jones v. City of Monroe, Michigan No. 01-2335

The Supreme Court has explicitly rejected the idea that any framing in Martin compels us to take the same approach here.

mere alteration of a rule is fundamental. See PGA Tour, Inc. Here, therefore, we must consider whether waiving the one-

v. Martin, 532 U.S. 661, 689 n.51 (2001) (disapproving of a hour ordinance for Jones would fundamentally alter the

reading of the ADA that would render the word overall parking scheme downtown, not its effect on the one-

“fundamentally” largely superfluous). Requiring public hour ordinance. Had the Supreme Court utilized the rationale

entities to make changes to rules, policies, practices, or the majority uses here, it would have simply stated that

services is exactly what the ADA does. Oconomowoc waiver of the walking rule “by its very nature” fundamentally

Residential Programs, Inc. v. City of Milwaukee, 300 F.3d alters the walking rule, and is therefore not required by the

775, 782-83 (7th Cir. 2002). The Court recognized the ADA.2

administrative burdens that Congress knew it was imposing

when passing the ADA. See Martin, 532 U.S. at 680. The Similarly, in the recent case of Dudley v. Hannaford Bros.

majority essentially contends that requiring an entity to make Co., 333 F.3d 299 (1st Cir. 2003), the First Circuit considered

such changes ipso facto results in a fundamental alteration, whether a retailer’s policy of never reconsidering a cashier’s

and is therefore not required by the ADA. This is simply not refusal to sell alcohol to a customer who appeared intoxicated

the case. violated the ADA. In Dudley, the plaintiff had suffered

severe trauma in an automobile accident, and regularly

Recent Supreme Court precedent compels a finding that the exhibited characteristics often associated with intoxication.

modification Jones requests is not a fundamental alteration. Id. at 301. Because he appeared intoxicated, a cashier refused

In Martin, a disabled professional golfer, Casey Martin, sued to sell him alcoholic beverages. Id. at 302. When the

the PGA for refusing to permit him to ride in a golf cart as a plaintiff asked to speak to a manager and explained his

modification of its “walking rule.” See Martin, 532 U.S. at situation, the manager, despite believing that the plaintiff’s

669. The PGA argued that the goal of its tournaments was to

compare the performance of competitors, a task that is

meaningful only if identical substantive rules apply to all 2

The majority discounts the instructiveness of Ma rtin, because

competitors. Id. at 686. The PGA claimed that the waiver of parking “is hardly analogous to the game of golf.” However, I believe

any rule that may alter the outcome of the event necessarily that Ma rtin’s precedential value extends well beyond the golf course . The

violates this principle, and the reasonable modification Martin majo rity’s criticism, if valid, could well be directed at their reliance on

sought would therefore be a fundamental alteration. Id. Choate, as parking benefits are similarly “hardly analogous” to Medica id

benefits. My view that both Choate and Ma rtin are instructive here is in

Despite this argument, the Supreme Court held that the no way ba sed any similarities betwe en M edica id, golf, and parking. A

refusal to grant Martin’s request was discrimination number of federal circuit courts have applied Ma rtin to ADA cases

prohibited by the ADA, finding that permitting him to ride in involving factual scenarios similarly different from golf. See, e.g., Dudley

a cart would not fundamentally alter the nature of the golf v. Hannaford Bros. Co, 333 F.3d 299, 307 (1st Cir. 2003) (relying on

tournaments. Id. at 689. Ma rtin in holding that a retailer’s policy of never reconsidering a refusal

to sell alcohol to a custome r violated the A DA ); Kapche v. City of San

Antonio , 304 F.3d 493, 498 (5th Cir. 2002) (relying on Ma rtin in holding

Of particular note is that neither the majority nor the dissent that an individualized inquiry is required in assessing whe ther a city

in Martin analyzed whether waiving the walking rule would violated the AD A in deeming an insulin-dependent applicant ineligible for

fundamentally alter that rule itself, rather, they assessed a position as a po lice officer); Forma n v. Sma ll, 271 F.3d 285, 297 (D.C.

whether waiving the rule would fundamentally alter golf Cir. 200 1). I believe that Ma rtin and Choate are instructive and

precedential because they interpret the relevant statutes and announce

tournaments. The Court’s recognition of the appropriate legal principles that are directly applicable to this case.

No. 01-2335 Jones v. City of Monroe, Michigan 27 28 Jones v. City of Monroe, Michigan No. 01-2335

story was plausible, relied on the store’s policy that fundamental than the modification requested in Martin. The

management would not revisit a cashier’s refusal to sell present action is not such a case. If the ADA requires the

alcohol to a customer. Id. Citing Martin, the First Circuit PGA to alter the enforcement of the walking rule to

noted that, because the plaintiff established his prima facie accommodate Martin’s disability, it surely must require

case, the defendant had to establish that the requested Monroe to alter the enforcement of its one-hour parking

modification, withdrawal of the “refusal to reconsider” policy, ordinance to accommodate Jones’s disability.

fundamentally altered the nature of its business. Id. at 307-

08. Again, it is important to note that the court did not The majority asserts that “[b]y its very nature, the benefit

consider whether withdrawal of the policy fundamentally of one-hour free public parking cannot be altered to permit

altered the nature of the policy itself. Of course, the waiver disabled individuals to park all day without jeopardizing the

of any rule alters that rule tautologically. Rather, the court availability of spaces to other disabled and nondisabled

assessed whether withdrawal of the policy would individuals.” This statement misses the point.

fundamentally alter the nature of its business, and found that

it would not. Id. at 308-09. Again, applying this reasoning to First, as the majority recognizes, the ADA requires courts

the present case, it is clear that we should be considering to conduct an individualized inquiry. The Supreme Court has

whether exempting Jones from the one-hour ordinance stated that “the ADA was enacted to eliminate discrimination

fundamentally alters Monroe’s downtown parking scheme as against ‘individuals’ with disabilities . . . . To comply with

a whole, not whether it fundamentally alters the one-hour this command, an individualized inquiry must be made to

ordinance itself.3 determine whether a specific modification for a particular

person’s disability would be reasonable under the

I recognize that the precise contours of when an alteration circumstances.” Martin, 532 U.S. at 688. Jones does not

is properly considered fundamental under an ADA analysis contend that Monroe’s parking program should be altered to

may be difficult to define. It is clear, however, that whatever permit disabled individuals to park all day in the spots most

this standard demands, in order to be a fundamental alteration, convenient for them. Jones argues only that she should be

the requested modification must result in an alteration more able to park in one of the only eleven spots capable of

accommodating her needs – not most convenient for her.

3 It is fair to say that, on their face, the parking limitations do

I cannot overstate the importance of applying the proper scope of not affect disabled and nondisabled individuals differently,

analysis when deciding whether a modification is a fundamental

alteration. In this case, contrary to Martin and Dudley, the majority and it is also true that most disabled individuals are able to

considers whether waiver of the one-hour ordinance fundamentally alters comply with the parking limitations and benefit from the

the one-hour ordinance itself, rather than whether it fund amentally alters parking services. Jones, however, cannot. The ADA requires

Monro e’s downtown parking scheme as a whole. Because I fear that the the question to be whether the parking limitations affect any

majority opinion may be read to establish a dangerous precedent that disabled individual differently than they affect the

perm its analyzing whether a requested modification is a fundamental

alteration in a manner that would render virtually all modifications

nondisabled. Because of her disability, the parking

“fundamental alterations,” I also wish to note that the majority’s limitations clearly do affect Jones differently than

discussion of the fundame ntal-alteration issue is merely dicta. Because nondisabled individuals. Other similarly situated individuals

the majority finds that Jones does not meet the third element of her prima are able to park for free all-day in spaces that allow them

facie case, there is no need for the majority to assess whether her meaningful access to their destination, but Jones is not.

requested mod ification is a fundamental alteration.

No. 01-2335 Jones v. City of Monroe, Michigan 29 30 Jones v. City of Monroe, Michigan No. 01-2335

Second, whether the requested alteration “jeopardizes the between this sort of modification and the benign modification

availability” of spaces to other individuals is not the requested by Jones, is obvious. The alteration to the historic

appropriate legal question. Virtually every accommodation house is fundamental; the request by Jones is simply an

made for disabled individuals, in one slight manner or alteration.

another, “jeopardizes” others. Handicapped spaces in

shopping mall parking lots “jeopardize” the availability of The majority also asserts that providing Jones with her

parking spaces for nondisabled shoppers. Permitting Casey requested modification would “require Monroe to cease

Martin to ride in a cart during a golf tournament “jeopardizes” enforcement of an otherwise valid ordinance.” This is not the

other golfers’ chances of winning the tournament. But this is case. The ADA requires only that Monroe cease enforcement

simply what the ADA requires. of the one-hour ordinance with respect to Jones. Monroe

would still be free to enforce the ordinance with respect to

The appropriate questions are whether the requested others who violate it. Martin simply held that the individual

modification is unreasonable, and whether the modification plaintiff must be permitted to use a golf cart in PGA

fundamentally alters the service. Here, the modification is tournaments, not that the PGA had to permit all golfers to use

clearly reasonable and fundamentally alters nothing. carts. The PGA only had to cease the enforcement of its rule

Monroe’s one-hour parking program provides 110 free with regard to Martin. See Martin, 532 U.S. at 689 (stating

spaces. If Jones were accommodated, only 109 would be that the walking rule could “be waived in individual cases

available during certain times. This simply cannot constitute without working a fundamental alteration”) (emphasis added).

a “fundamental alteration.”

VI. Preliminary Injunction Factors

The Technical Assistance Manual also proves to be

illuminating on this issue. The manual does not even I do not take issue with the four factors noted by the

contemplate that permitting a disabled individual to use a majority which the district court is to consider when

freight elevator would be a fundamental alteration, despite the considering a motion for a preliminary injunction. However,

fact that freight elevators are intended to transport freight, for the reasons detailed above, I believe that Jones has a high

rather than individual members of the public. See ADA likelihood of success on the merits. In addition, the emotional

TECHNICAL ASSISTANCE MANUA L II-5.1000. The and physical toll that Jones suffers from being denied a

acknowledgment that a freight elevator could be used as an parking spot is surely irreparable, especially in light of the

accommodation implicitly affirms that permitting such use severity of her multiple sclerosis. The harm to others in this

does not constitute a fundamental alteration. case is negligible. The public interest is clearly served by

eliminating the discrimination Congress sought to prevent in

The manual also provides the following compelling passing the ADA. In addition, permitting Jones to park

illustration of a modification that would be a fundamental adjacent to her building improves her capacity to counsel her

alteration: “Installing an elevator in an historic house museum clients, which also serves the public interest. Thus, proper

to provide access to the second floor bedrooms would destroy consideration of all four factors requires this Court to grant

architectural features of historic significance on the first Jones’s request for injunctive relief.

floor.” ADA TECHNICAL ASSISTANCE MANUA L II-5.5000. In

such a situation, the installation of an elevator would indeed

be a fundamental alteration. The sharp contrast, however,

No. 01-2335 Jones v. City of Monroe, Michigan 31 32 Jones v. City of Monroe, Michigan No. 01-2335

VII. The District Court’s Abuse of Discretion VIII. Conclusion

As stated above, I contend that the majority improperly As the First Circuit has noted, the ADA “did not emerge in

applies an abuse of discretion standard of review in this case, a vacuum.” Dudley, 333 F.3d at 303. Congress found that

when a de novo standard is required. However, the legal “society has tended to isolate and segregate individuals with

arguments in favor of Jones in this case are so strong that disabilities,” creating “a serious and pervasive social

application of a clearly erroneous standard would not change problem.” 42 U.S.C. § 12101(a)(2). Congress explicitly

the result. As the majority notes, the district court’s noted that disabled individuals continually encounter

determination will be disturbed only if the district court relied discrimination that includes, among other things, the

upon clearly erroneous findings of fact, improperly applied discriminatory effects of architectural and transportation

the governing law, or used an erroneous legal standard. barriers, failure to make modifications to existing practices,

Nightclubs, 202 F.3d at 888. and relegation to lesser benefits. Id. § 12101(a)(5). In order

to ensure full participation of disabled individuals in our

Because Jones is being denied the benefit of free and society, Congress enacted the ADA to “address the major

accessible all-day parking due to her disability, and because areas of discrimination faced day-to-day by people with

the modification she requests is not a fundamental alteration, disabilities.” Id. § 12101(b)(4).

the district court “improperly applied governing law,” and the

decision was therefore an abuse of discretion. The majority decision is in direct conflict with the intent of

Congress, the text of the statutes, and the corresponding

In addition, the district court “used an erroneous legal regulations, and the decision also violates binding Supreme

standard.” In assessing Jones’s likelihood of success on the Court precedent. Because the benefit “cannot be defined in

merits, the district court stated only that “[t]he City’s parking a way that effectively denies otherwise qualified handicapped

plan takes into account the needs of the handicapped and does individuals the meaningful access to which they are entitled,”

not, on its face, seem to violate the ADA. In short, the City’s Choate, 469 U.S. at 301; and because we cannot read the

parking plan seems to comply with the federally mandated ADA in a manner that “renders the word ‘fundamentally’

standard of equal access.” Whether the parking plan, on its largely superfluous,” Martin, 532 U.S. at 689 n.51, I would

face, seems to violate the ADA is not the appropriate legal reverse the district court and grant Helen Jones’s motion for

standard, nor is whether the plan seems to comply with the a preliminary injunction.

standard of equal access. The appropriate legal standards are

whether Jones is being denied a benefit due to her disability,

and whether the modification she seeks is a fundamental

alteration. The district court therefore used erroneous legal

standards in disposing of this case. Accordingly, the

erroneous legal standards used by the district court require

this Court to find the district court’s judgment to be an abuse

of discretion.