George Matheis, Jr. v. CSL Plasma Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

Nos. 18-3415 & 18-3501

________________

GEORGE F. MATHEIS, JR.,

Appellant/Cross-Appellee

v.

CSL PLASMA, INC.,

Appellee/ Cross-Appellant

________________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-17-cv-00785)

District Judge: Honorable Sylvia H. Rambo

________________

Argued June 18, 2019

Before: AMBRO, RESTREPO, and FISHER, Circuit Judges

(Opinion filed August 30, 2019)

Rees Griffiths

Zachary E. Nahass (Argued)

CGA Law Firm

135 North George Street

York, PA 17401

Counsel for Appellant

Bruce J. Douglas (Argued)

Ogletree Deakins Nash Smoak & Stewart

225 South Sixth Street, Suite 1800

Minneapolis, MN 55402

Donald D. Gamburg

Rachel C. Stone

Ogletree Deakins Nash Smoak & Stewart

1735 Market Street, Suite 3000

Philadelphia, PA 19103

Counsel for Appellee

Lauri A. Mazzuchetti

Kelley Drye & Warren

One Jefferson Road, 2nd Floor

Parsippany, NJ 07054

John T. Delacourt (Argued)

Joshua Penrod

Plasma Protein Therapeutics Association

3050 K Street, NW, Suite 400

Washington, DC 20007

Counsel for Amicus Appellee/Cross Amicus Appellant

The Plasma Protein Therapeutics Association

2

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

Congress, when it passed the Americans with

Disabilities Act (“ADA”), found that “physical or mental

disabilities in no way diminish a person’s right to fully

participate in all aspects of society, yet many people with

physical or mental disabilities have been precluded from doing

so because of discrimination.” 42 U.S.C. § 12101(a)(1). The

remedy for this finding was “to provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.” 42 U.S.C.

§ 12101(b)(1). But is it discrimination for an establishment, in

the name of safety, to bar everyone who uses a psychiatric

service animal, including someone who safely participated

more than four score times without assistance?

George Matheis, a retired police officer who has

successfully managed a diagnosis of post-traumatic stress

disorder (“PTSD”), routinely and safely donated plasma

roughly 90 times in an 11-month period at CSL Plasma, Inc.’s

plasma donation facility. CSL barred him from making further

donations when he brought his new service dog, Odin, to the

facility the next time. It reasoned that it has a policy to bar any

individual who is prescribed daily more than two separate

anxiety medications or who uses a service animal to manage

anxiety.1 In its view, these people are categorically unsafe to

donate plasma. The company required Matheis to provide a

1

The parties agree the two anxiety medications rule is not

relevant to this appeal.

3

letter from his doctor stating he had no need for a service

animal before it would screen him for further plasma donation.

He sued, lost, and appeals to us.

We have two issues. We determine first whether plasma

donation centers—facilities where members of the public have

their plasma extracted in exchange for money—are subject to

the ADA’s prohibition on unreasonable discrimination. This

turns on whether these facilities are “service establishments”

under 42 U.S.C. § 12181(7)(F), which has produced a circuit

split between the Tenth and Fifth Circuits. We conclude, like

the District Court here, that the Tenth Circuit got it right: the

ADA applies to plasma donation centers.

So we next consider the question posed initially,

whether CSL violated the ADA by imposing a blanket ban on

prospective donors who use a psychiatric service animal. Here

we part with the District Court. Public accommodations like

CSL must permit disabled individuals to use service animals

unless they can show a regulatory exception applies. CSL has

failed to provide evidence to satisfy the relevant exception

here—that any safety rule “be based on actual risks and not on

mere speculation, stereotypes, or generalizations about

individuals with disabilities.” 28 C.F.R. § 36.301(B). Thus we

reverse the grant of summary judgment and remand.

I. Factual Background

CSL owns and operates a plasma donation facility in

York, Pennsylvania. Its business is collecting human blood

plasma from the public and selling it to third parties. It screens

prospective donors for known health risks, extracts plasma

from qualifying individuals, freezes it, and then ships it to

manufacturing plants to be made into medicines. The donation

process is intense; each session lasts as long as two hours, and

donors, who give blood as often as twice a week, must each

4

time pass an individualized screening process. This process

includes a check of the donor’s blood pressure and protein

levels, along with questions to see how the donor is feeling and

to check that he or she has not engaged in risky activities. CSL

pays its donors as much as several hundred dollars a month for

their plasma.

Matheis was involved in a deadly shooting incident

while on duty as a SWAT officer with his police department in

2000. After that incident, he had problems socializing and was

soon diagnosed with PTSD. His condition sometimes causes

him to suffer panic attacks when exposed to crowded or

confined spaces, altercations, or helicopter noise. He retired

from the police force in 2007 to become a small business

owner.

In 2016, Matheis decided to donate plasma to raise extra

money. As noted, he did so approximately 90 times during that

year at the CSL facility in York. These went off without a

hitch, and CSL paid Matheis between $250-300 a month for

his donations.

In October 2016, Matheis’s eldest daughter enlisted in

the Navy. Seeing the stress that her leaving caused her father,

she bought him a dog, Odin, to help him cope with her absence.

Odin was trained as a service dog for Matheis soon thereafter.

During Odin’s initial training, Matheis brought him to

CSL to introduce him to the facility. Immediately on entering

the building, his phlebotomist (someone trained to draw blood

from patients or donors) told him he could not have a dog on

the premises. Matheis did not undergo CSL’s individualized

assessment to determine if he could safely donate that day;

instead his phlebotomist referred him to the CSL nurses’

station. There he explained that Odin was a service animal that

helped him manage his PTSD. The nurse referred him to a CSL

5

manger, who explained that, under its policies, CSL permitted

service animals for the blind but not for anxiety. Matheis again

explained that Odin helped him manage his PTSD, a disability

under the ADA. After a phone call, the manager told him he

could not donate. Matheis offered to leave Odin in his car and

donate without him. The manager rejected this, stating he

could not donate until he brought back a letter from his

healthcare provider saying he could safely donate without

Odin. Matheis left CSL and has not returned to donate plasma

since.

CSL’s concern is not related to any health concerns that

dogs like Odin pose; rather it has concluded that using a service

animal for anxiety means that the donor’s condition is too

severe to undergo safely the donation process.

Matheis filed suit alleging discrimination for a failure to

accommodate his condition. To establish his claim, he must

show that (1) he is disabled, (2) CSL is a “public

accommodation” under Title III of the ADA, and (3) it

unlawfully discriminated against him on the basis of his

disability by (a) failing to make a reasonable modification that

was (b) necessary to accommodate his disability. See PGA

Tour, Inc. v. Martin, 532 U.S. 661, 683 n.38 (2001); Berardelli

v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 123 (3d Cir.

2018).

CSL does not dispute that Matheis is disabled or that

Odin is a trained service animal. Thus this appeal hinges on

the two issues noted above: whether the ADA applies to CSL;

and, if so, whether its conduct was unlawful discrimination

under the ADA. It moved for summary judgment contending

that it was not subject to the ADA or, alternatively, that its

policy—barring all individuals who use service animals for

anxiety—was reasonable. See Defendant’s Mot. for Summ. J.

6

at 12–19, Matheis v. CSL Plasma, Inc., No. 1:17-cv-00785-

SHR, 346 F. Supp. 3d 723, 734 (M.D. Pa. 2018) (ECF No. 27).

The District Court ruled that the ADA covered CSL, but

that the company did not unlawfully discriminate because it

had a legitimate, non-discriminatory reason for refusing to

allow Matheis to donate plasma, a concern that he had severe

anxiety. Matheis v. CSL Plasma, Inc., 346 F. Supp. 3d 723,

734 (M.D. Pa. 2018). The Court buttressed what it recognized

as a “necessary, yet counterintuitive,” conclusion, id. at 735,

by stressing CSL would let Matheis donate with Odin once he

cleared it with a doctor. Id. at 737 (“CSL stated that it would

admit Plaintiff if he provided it with a note from a psychologist

stating that he could donate safely with Odin accompanying

him.”) (emphasis added). But CSL’s stance is that Matheis

may not donate until he can safely donate without Odin.

Matheis appeals the ruling, while CSL cross-appeals

contending it is not subject to the ADA at all. The Plasma

Protein Therapeutics Association also filed an amicus brief and

participated in oral argument, arguing that Title III of the ADA

does not apply to plasma donation centers like CSL.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction per 28 U.S.C.

§§ 1331 and 1343(a)(4). Its grant of summary judgment was a

final order, and so we have jurisdiction under 28 U.S.C.

§ 1291.

We review de novo a grant of summary judgment.

Metro Transp. Co. v. N. Star Reinsurance Co., 912 F.2d 672,

678 (3d Cir. 1990). We apply the same test the District Court

would use. Dwyer v. Cappell, 762 F.3d 275, 279 (3d Cir.

2014). Under this test, reviewing the facts in the light most

favorable to the non-mover, we grant summary judgment “if

7

the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a).

III. Discussion

A. Does the ADA apply to plasma donation centers?

The ADA is divided into three titles of regulation—

Title I (employers), Title II (governments), and Title III (public

accommodations). Title III states 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. It reflects the

ADA’s “comprehensive character,” Martin, 532 U.S. at 675

(quotation omitted), and defines “public accommodation” to

include, in relevant part:

a laundromat, dry-cleaner, bank, barber shop,

beauty shop, travel service, shoe repair service,

funeral parlor, gas station, office of an

accountant or lawyer, pharmacy, insurance

office, professional office of a health care

provider, hospital, or other service

establishment;

....

42 U.S.C. § 12181(7)(F) (emphasis added). Our focus narrows

to whether a plasma donation facility is an “other service

establishment.”

This question has already produced a circuit split. In

Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1229

(10th Cir. 2016), a divided panel held that plasma donation

centers were subject to the ADA as service establishments.

8

The Court relied on a broad, common definition of “service”

and “establishment”—“conduct or performance that assists or

benefits someone or something” and a “place of business,”

respectively. Id. at 1231 (quoting Webster’s Third New

International Dictionary 778, 2075 (2002)). It reasoned that

giving the term “service establishment” the ordinary meaning

of its components yielded neither ambiguity nor an irrational

result. Plasma donation centers “are ‘place[s] of business.’ . . .

And they ‘assist[] or benefit[]’ those who wish to provide

plasma for medical use—whether for altruistic reasons or for

pecuniary gain—by supplying the trained personnel and

medical equipment necessary to accomplish that goal.” Id. at

1234 (same) (alterations supplied in opinion).

The Fifth Circuit in Silguero v. CSL Plasma, Inc., 907

F.3d 323 (5th Cir. 2018), viewed things differently. It made

two base observations—the donor is not benefited by donating,

and each of the listed service establishments provides services

to the public in exchange for money. These features did not

apply to plasma donation services. Id. at 329.

The dissent in Levorsen took a similar line. It followed

ejusdem generis, a canon of statutory interpretation that

interprets a last, general term by looking to the preceding

examples. From these the dissenting judge proposed the

following definition: a service establishment “offer[s] the

public a ‘service’ (1) in the form of (a) expertise (e.g., barbers,

beauticians. . ., and hospitals) or (b) specialized equipment

(e.g., laundromats and gas stations), (2) for use in achieving

some desired end, (3) in exchange for monetary

compensation.” Levorsen, 828 F.3d at 1235 (Holmes, J.,

dissenting). He concluded that plasma donation centers could

not qualify as service establishments because donors do not

pay money for the service and (confusingly) because the

donation centers do not offer their services in order to benefit

the public.

9

[T]o the extent that plasma-donation centers

provide services to the public—such as those

services identified by Mr. Levorsen and the

United States—they do not do so for

the public’s use in achieving a desired end;

instead, they provide them for the centers’ use in

achieving a desired end. More specifically,

plasma-donation centers provide the public with

the expertise associated with blood [extraction] .

. . so that the centers can sell the plasma to their

customers in the pharmaceutical industry (i.e.,

the desired end)—not so that they can assist the

public to achieve some desired end.

Id. at 1243 (emphases in original).

We align with the majority in the Tenth Circuit. First,

at least here no support exists for the Fifth Circuit’s statement

that donors “do not benefit” from the act of donating. The

record is unequivocal that Matheis and other donors receive

money, a clear benefit, to donate plasma.

Second, Judge Holmes’s attempt in his dissent to

distinguish this benefit on the basis of the secondary profit

motive of plasma facilities is unpersuasive. A bank, one of the

listed examples in § 12181(7)(F), is an obvious example of a

service establishment that uses the fruits of its public-facing

services for subsequent profit. Not only does it provide the

means and expertise to hold safely the public’s money, it also

may provide interest or other benefits (including cash or

rewards) to convince customers to entrust them with their

savings. That a bank subsequently invests, trades, or loans this

money to third parties does not make it any less a service

establishment with respect to the public.

10

Moreover, any emphasis on the direction of monetary

compensation is, to us, unhelpful. Businesses that offer

services to the public convey something of economic value in

return for something else of economic value. The value

received by the service provider and given by the customer is

often money, but it need not be. Money is one proxy for

economic value, and economic value is fungible.

The bank example shows we should not arbitrarily

narrow the scope of “service establishments” to entities that

receive compensation from customers in the form of money.

Banks and their customers exchange sources of economic

value that do not always fit into a simple “money for service”

model. As noted, customers often receive money from banks

for using the bank’s service. Banks are hardly the only

example of companies that pay the public to use their services.

Amicus Plasma Protein Therapeutics Association conceded at

oral argument that a pawnshop is a service establishment under

Title III. It pays money in exchange for people’s possessions.

So too, as the District Court noted, is a recycling center a

service establishment; it compensates consumers in exchange

for their waste and has been held subject to the ADA. Matheis,

346 F. Supp. 3d at 734 n.9 (citing Estrada v. S. St. Prop., LLC,

No. 17-cv-259, 2017 WL 3461290, *3 (C.D. Cal. Aug. 11,

2017)). These examples underscore a simple fact: providing

services means providing something of economic value to the

public; it does not matter whether it is paid for with money or

something else of value.

Hence we conclude that a plasma donation center is a

service establishment under the ADA. It offers a service to the

public, the extracting of plasma for money, with the plasma

then used by the center in its business of supplying a vital

product to healthcare providers. That both the center and

members of the public derive economic value from the center’s

provision and public’s use of a commercial service does not

11

divorce the center from the other listed examples in

§ 12181(7)(F). Indeed this is an irreducible feature of a market

system.

B. Did CSL discriminate against Matheis?

We next turn to whether CSL violated the ADA when it

barred Matheis from donating plasma.

i. Legal standard

The statute requires that public accommodations not

discriminate on the basis of disability. Discrimination

includes:

a failure to make reasonable modifications in

policies, practices, or procedures, when such

modifications are necessary to afford such

goods, services, facilities, privileges,

advantages, or accommodations to individuals

with disabilities, unless the entity can

demonstrate that making such modifications

would fundamentally alter the nature of such

goods, services, [etc.].

42 U.S.C. § 12182(b)(2)(A)(ii) (emphases added).

A company regulated under Title III may be held liable

for failing to accommodate. This is “a standard that turn[s] on

(1) whether the requested accommodation to the program was

‘reasonable’; (2) whether it was necessary ‘to assure

meaningful access’; and (3) whether it would represent ‘a

fundamental alteration in the nature of [the]

program.’” Berardelli, 900 F.3d at 115 (quoting Alexander v.

Choate, 469 U.S. 287 (1985)). The plaintiff bears the initial

burden of establishing that the desired accommodation is

reasonable and necessary, while the defendant bears the burden

12

of showing that it would fundamentally alter the nature of the

program. Id. at 124; see J.D. by Doherty v. Colonial

Williamsburg Found., 925 F.3d 663, 671 (4th Cir. 2019).

CSL does not contend that permitting Odin to

accompany Matheis would fundamentally alter the nature of its

service. Nor does it dispute Matheis’s evidence showing that

Odin is a necessary accommodation (indeed, CSL’s policy

assumes that Odin is a necessary accommodation and bars

Matheis outright for it). The only question is whether his use

of Odin is reasonable.

Title III entities are required by regulation to “modify

policies, practices, or procedures to permit the use of a service

animal by an individual with a disability.” 28 C.F.R. § 36.302.

In other words, use of a service animal by a disabled individual

“is reasonable under the ADA as a matter of law” so long as no

Department of Justice-promulgated regulation supersedes this

general rule. Berardelli, 900 F.3d at 119 (vacating a jury

verdict for a school district that denied one of its students with

epilepsy use of her service dog).2 The service-animal

regulations satisfy Matheis’s initial burden to show an

accommodation is reasonable; CSL must establish that an

exception to those regulations applies. Id. at 124.

This burden differs significantly from the test the

District Court seems to have applied when it concluded CSL’s

denial was not based on a “discriminatory animus.” It

borrowed the employment discrimination framework from

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

2

Though Berardelli involved the reasonableness of service

animals under the Title II regulations (Part 35), the approach

here is identical, as those animal service regulations use

“materially identical language” as the regulations under the

Title III regulations (Part 36). Id. at 118–19.

13

That framework involves burden shifting: a plaintiff must

establish a prima facie case of discrimination; when he does,

the burden shifts to the employer to articulate some legitimate,

nondiscriminatory reason for the adverse action against the

employee. If the employer does so, the employee may attempt

to show the reason is a pretext to hide discrimination. See, e.g.,

Walton v. Mental Health Ass’n. of Se. Pennsylvania, 168 F.3d

661, 668 (3d Cir. 1999).

Because a plaintiff need not show intentional

discrimination to demonstrate a violation of Title III of the

ADA, Lentini v. Calif. Ctr. for the Arts, Escondido, 370 F.3d

837, 846-47 (9th Cir. 2004), we reject using McDonnell

Douglas in this context, and instead follow the Berardelli

framework for ADA claims against a public accommodation.

Thus we must determine whether CSL has established

exceptions that permit a plasma donation center to deny a

disabled individual’s use of a service animal. If none apply,

Matheis’s use of Odin is a reasonable accommodation, and his

claim succeeds.

ii. Regulatory exceptions

In Berardelli we concluded that a small group of

regulatory exceptions, both within the animal service

regulations and listed elsewhere in Part 35, formed the

exclusive bases for a government entity to deny a service

animal who is a necessary accommodation for a disabled

person:

[The regulations] specify the limited

circumstances in which it would be unreasonable

to require these actors to allow the use of service

animals: if granting access would . . . pose a

“direct threat” to the health or safety of

others, id. §§ 35.139, 36.208, or if the animal is

14

either “out of control” or “not housebroken,”[] id.

§§ 35.136(b)(1)–(2), 36.302(c)(2)(i)–(ii) . . . .

Subject to these exceptions, however, the

regulations mandate that “[i]ndividuals with

disabilities shall be permitted to be accompanied

by their service animals in all areas of [a covered

actor’s facilities] where . . . program participants

. . . are allowed to go.” Id. § 36.302(c)(7); see

also id. § 35.136(g).

Id. at 119.

As the citations to Part 36 indicate, identical regulations

exist for Title III entities. None is relevant here. The closest

fit is 28 C.F.R. § 36.208, which permits public

accommodations to deny anyone who poses a “direct threat” to

others. While CSL expresses concern that people like Matheis

are a threat to staff and other donors, the “direct threat”

exception requires “an individualized assessment” to

determine “[t]he nature, duration, and severity of the risk; the

probability that the potential injury will actually occur; and

whether reasonable modifications of policies, practices, or

procedures or the provision of auxiliary aids or services will

mitigate the risk,” 28 C.F.R. § 36.208, an assessment CSL did

not perform.

That is not all that is relevant, however. The parties and

the District Court each note the eligibility regulation for Title

III public accommodations, 28 U.S.C. § 36.301, and it

ultimately controls our inquiry. It states that “[a] public

accommodation may impose legitimate safety requirements

that are necessary for safe operation. Safety requirements must

be based on actual risks and not on mere speculation,

stereotypes, or generalizations about individuals with

disabilities.” 28 U.S.C. § 36.301(b). The parties agree CSL’s

15

policy deferring donors who use multiple anxiety medications

or a service animal is a safety rule, so it must pass muster under

§ 36.301(b).

The parties and the District Court also note the blood

transfusion regulation in 21 C.F.R. § 630.10, but this does not

alleviate CSL’s burden under § 36.301(b). It states a donor is

ineligible if the donation “could adversely affect the health of

th[at] donor,” 21 C.F.R. § 630.10(a), but the facility “must

determine the donor’s eligibility” by the specified procedures

for individualized assessment, 21 C.F.R. § 630.10(d). The

individualized assessment must check for

factors that make the donor ineligible to donate.

. . . Your assessment must include each of the

following factors:

(i) Symptoms of a recent or current illness;

(ii) Certain medical treatments or

medications;

....

21 C.F.R. § 630.10(e)(2). The regulation does not clarify

which treatments are included among the “[c]ertain medical

treatments.”

CSL contends that it has complete discretion to

determine what treatments, including use of service animals,

show a donor may be harmed by donating. This overreads the

blood transfusion regulation. It does not give plasma donation

centers carte blanche to ignore U.S. law, which not only

mandates that service animals be allowed, 28 C.F.R.

§ 36.302(c), but also specifies when public accommodations

may adopt rules that exclude disabled individuals in the name

of safety, 28 C.F.R. 36.301. Applied to our case, CSL may

16

consider a service animal among the list of “[c]ertain medical

treatments” it can assess for eligible donating of plasma so long

as it can show that the safety policy it adopts is based on “actual

risk and not mere speculation, stereotypes, or generalizations

about individuals with disabilities.”

iii. Is CSL’s policy a valid safety rule?

Though CSL bears the burden to show its service animal

policy is valid under § 36.301(b), the evidence it marshals on

its behalf is unimpressive and not remotely adequate to confer

summary judgment. It relies exclusively on a declaration from

Dr. John Nelson, its divisional medical director, stating that

“[d]onors with severe anxiety may be unable to follow

directions, cause disturbances, impact the donation process . .

.[,] putting staff at risk of getting stuck with the needle and

other donors at risk of getting blood on them.” J.A. at 89. It

also states that “[i]t is my professional medical opinion that

donors with severe anxiety present serious health and safety

risks to themselves, medical staff, and other donors.” Id. at 90.

The declaration’s lone statement addressing the use of a service

animal is that

CSL’s general policy is to defer a donor who

requires more than two medications daily or a

service animal for anxiety, until the need for

medications or service animal decreases. . . . This

policy is not directed to the use of a service dog,

as CSL allows service dogs for vision-and

hearing-impaired donors, but is based on the

severity of the anxiety.

Id.

These statements don’t get the job done. Indeed, they

seem clearly speculative and to generalize widely about

17

individuals who use psychiatric service animals, all of whom

CSL apparently views as people with “severe anxiety.” No

medical justification or other scientific evidence undergirds

CSL’s implicit conclusion that all those persons have “severe

anxiety” and will put staff, other donors, or themselves at risk

when donating plasma. This conclusion is not even stated; Dr.

Nelson does not connect the dots by attesting that using a

service animal indicates “severe anxiety.” This is clearly

inadequate to show that CSL’s policy is based on actual risk

and not based on speculation, stereotypes, or generalizations.

CSL’s main retort is that Matheis cannot now challenge

Dr. Nelson’s declaration because he failed to challenge its

reliability before the District Court under Federal Rule of

Evidence 702. (CSL Br. at 31.) Though Matheis did not move

to exclude the declaration, this is not fatal; he argued before the

District Court that the testimony fails to satisfy the safety rule

regulation. See Plaintiff’s Br. in Opp’n to Def.’s Mot. for

Summ. J. at 15–16, Matheis, No. 1:17-cv-00785-SHR, 346 F.

Supp. 3d 723 (ECF No. 30). He can press this issue on appeal,

as he does, without challenging Dr. Nelson’s reliability as a

witness. (See Matheis Br. at 19, Reply at 8–9.)

As a final Hail Mary, CSL argues it had other reasons

for concluding Matheis had severe anxiety (which we assume

for the sake of argument could support deferral for the reasons

stated in the Nelson Declaration). Discovery revealed that

Matheis had a panic attack after he was deferred from CSL (he

confronted a homeless man while leaving the facility) and that

some of his past panic attacks have been accompanied by

violent symptoms. (See generally CSL Br. at 21–29.) It asserts

that these facts show it reasonably required him to seek a

doctor’s signoff that he was safe to donate without Odin.

While we disagree, we note a predicate problem as well.

CSL raises this issue for the first time on appeal. Before the

18

District Court it moved for summary judgment on two narrow

grounds: (1) that CSL was not a public accommodation under

Title III of the ADA; and (2) that its policy barring all anxiety

patients who use a service animal to treat anxiety was a

legitimate safety rule. See Defendant’s Mot. for Summ. J. at

12–19, Matheis, No. 1:17-cv-00785-SHR, 346 F. Supp. 3d 723

(ECF No. 27). We will not consider its new argument in favor

of summary judgment. See Tri-M Grp., LLC v. Sharp, 638

F.3d 406, 416 (3d Cir. 2011) (“It is axiomatic that arguments

asserted for the first time on appeal are deemed to be waived

and consequently are not susceptible to review in this Court

absent exceptional circumstances.”) (quotation omitted).3 As

CSL’s two timely justifications for summary judgment fail, we

reverse.

IV. Conclusion

CSL is a public accommodation under Title III of the

ADA, and so it applies to CSL’s plasma donation center.

Hence we affirm the District Court’s ruling on this issue.

We reverse, however, its grant of summary judgment to

CSL on whether it complied with the ADA. In doing so, we

do not suggest that CSL would be wrong in the future to require

a doctor’s note stating Matheis may safely donate with Odin.

Indeed, had CSL adopted such a stance from the start, we might

agree with how the District Court ruled. But CSL concedes

that it will only consider Matheis as a potential donor when he

provides a doctor’s note attesting he can safely donate without

Odin. CSL’s lone justification is its service animal policy,

which it does not support with evidence showing that policy is

3

To the extent CSL has attempted to justify Matheis’s deferral

by pointing to his post-deferral panic attack that he experienced

while leaving the donation facility, we do not see how an event

that occurred after deferral could now be cited as a basis for it.

19

based on actual risk and not speculation, generalizations, or

stereotypes. Moreover, CSL fails to explain why Matheis, who

has managed his PTSD for nearly two decades and safely

donated plasma roughly 90 times, should only be considered

safe to donate when he renounces the new service animal that

helps him better manage his PTSD.

Thus we reverse and remand the District Court’s grant

of summary judgment in favor of CSL. On remand, the Court

may determine whether to permit CSL to move for summary

judgment on other grounds, to hold trial, or to conclude on the

facts presented that CSL violated the ADA.

20