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Many potential legal issues, including disability discrimination, can be mitigated or alleviated entirely through good public relations. In the case described herein, the federal district court found some evidence of discrimination on the basis of disability but denied the requested legal relief under the Americans with Disabilities Act (ADA). That being said, with 20/20 hindsight, one can certainly speculate that better communication and a spirit of accommodation may have promoted goodwill and avoided costly litigation.

In the case of P.M. v. City of Winfield, 2021 U.S. Dist. LEXIS 205103 (N.D. Ala. 10/25/2021), Plaintiff P.M., a minor, brought a lawsuit through his mother, Karen Martine, against the Defendant City of Winfield, Alabama (the City), alleging a violation of Title II of the ADA. Plaintiff alleged her son’s full participation on Defendant’s youth baseball team had been denied on the basis of her son’s disability. In response, the City filed a motion for summary judgment with the federal district court, which, if granted, would effectively dismiss the lawsuit.

No Right-Hand Pitching Tryout

The minor Plaintiff, P.M., has a right limb but no right hand. When he plays baseball, he switches his glove on and off his only hand, wearing his glove on his right limb while he throws with his left hand. In spring 2018, P.M. played on one of the City’s youth baseball teams for 9- and 10-year-old boys, all of which are sponsored by the Winfield Park and Recreation Department (the Department). Neal Box acted as a volunteer coach for the team during the relevant time.

On March 13, 2018, Box decided to try out nine players for the position of pitcher. P.M. was one of those players. While the other boys who received a tryout threw more than 10 pitches, P.M. threw around five or six. At the end of tryouts, Box informed P.M., as well as other players, that he would not be selected as pitcher and instead be placed in the outfield. Karen Martine, P.M.’s mother, approached Box after learning her son was not selected as pitcher and asked Box to explain his choice. Box responded that if P.M. were pitching, he could not defend himself when a batter hits a “line drive” toward him.

Karen Martine recorded the entire conversation. John Martine, P.M.’s father, subsequently purchased protective equipment for P.M. in response to the safety concerns expressed by Box. That same day, John Martine texted Box asking if P.M. could try out using the new safety equipment, and Box replied that he already had chosen who would be pitching for the season.

On March 14, 2018, Karen Martine approached Gina Bryant, park and recreation director of Winfield Park and Recreation Department, to complain about Box’s discrimination against her son during the tryout for pitcher. In response, Bryant told Karen that she and Charlotte Beasley, park and recreation athletics director, would attend the team’s next practice. Bryant also informed the Park and Recreation Board (the Board) of the events, including that she would investigate and provide updates on the matter.

Shortly before the next practice, Beasley and Bryant both talked to Box about the complaints against him. Explaining his rationale for not selecting P.M. as pitcher, Box said that P.M. was not selected because he could not consistently throw strikes and because he had trouble controlling his glove. This was not communicated to Karen nor John Martine. Beasley and Bryant stayed after the conversation to watch the team’s practice.

The next day, Karen and John Martine were given the opportunity to speak with both Beasley and Bryant in their office, where the Martines elaborated on their complaint regarding Box’s alleged discrimination. A few days later, on March 22, 2018, the Martines sent a letter, the audio file of Karen’s conversation with Box, text message screenshots, a receipt confirming the purchase of P.M.’s new protective gear, and videos of P.M. pitching to Park and Recreation Chairman Chris Carothers, as well as Beasley, Bryant and the Mayor of the City of Winfield, Randy Price.

The Board met on March 26, 2018, to address the complaint, where Beasley and Bryant presented the information they gathered regarding Box’s conduct. The Board ultimately determined that P.M. had received a tryout and had been treated fairly by Box.

P.M. proceeded to play for the remainder of the 2018 baseball season. However, P.M. did not play during the 2019 season and was no longer interested in playing baseball for the Winfield Park league.

Summary Judgments

In this particular instance, the Defendant City made a motion for summary judgment on Plaintiff’s claims under the ADA that had alleged the City denied P.M. “Equal Enjoyment of Activities and Services,” as well as the City’s “Failure to Make Reasonable Modifications and Auxiliary Aids.” As described by the federal district court, summary judgment in favor of the City would be appropriate if the City could show there was “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).

Americans with Disabilities Act

As cited by the federal district court, Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Further, to state a claim under Title II, the court noted a plaintiff must prove the following:

(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability.

Qualified Individual With a Disability

Further, as cited by the court, under Title II of the ADA, a qualified individual with a disability is a person who has a qualified disability and who, “with or without reasonable modifications to rules, policies, or practices or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131. In addition, the court noted that the regulatory definition of “disability” under the ADA is “a physical or mental impairment that substantially limits one or more of the major life activities of such individual,” including an “anatomical loss affecting one or more body systems, such as musculoskeletal.” 28 C.F.R. §§ 35.130(b)(1)(i); 35.130(b)(1)(i).

According to the court, since P.M. has “only one hand,” there was no dispute that this impairment would qualify as having a “disability” under the ADA. Despite the undisputed nature of P.M.’s disability, Defendant City, however, had argued that P.M. must still “meet the essential eligibility requirements to participate as pitcher.” In response, Plaintiff contended that “P.M. meets the essential eligibility requirements under Title II simply because he met the eligibility requirements of Defendant’s baseball team during the relevant time.”

The federal district court agreed that P.M. is “considered a qualified individual with a disability under Title II of the ADA” and “P.M. meets the essential eligibility requirements as required by the ADA.” In so doing, the court determined “the program in question is Defendant’s baseball team rather than the pitcher position, which is a benefit of membership on the team.”

Limited Participation Opportunities

As cited by the federal district court, the ADA Title II implementing regulations also would require the City to provide an equal opportunity for qualified individuals with a disability to participate in their programs:

A public entity may not afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others, nor can it limit such individuals “in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.” 28 C.F.R. §§ 35.130(b)(1)(ii); 35.130(b)(1)(vii).

Moreover, the court acknowledged: “A qualified individual does not have to be completely prevented from enjoying a service, program, or activity by the public entity to establish exclusion from participation or denied benefits in violation of the ADA.” Accordingly, in this particular instance, the court noted P.M. “need not show that he was completely denied an opportunity to participate on the team.” On the contrary, the court found Plaintiff must simply show that “Defendant limited or excluded him from opportunities afforded to and enjoyed by others on the team.”

In this case, Plaintiff had claimed Defendant City excluded P.M. from “the opportunity to try out for pitcher” by “denying him the same number of pitches as the other boys with two hands.” Defendant City had claimed “every player who tried out threw 15-20 pitches during the tryout.” Plaintiff, however, contended P.M. “was only allowed five or six pitches before being denied the pitcher position.”

As a result, Plaintiff argued that Defendant’s motion for summary judgment should be denied because there was a genuine dispute as to whether P.M.’s “opportunity to try out for pitcher was limited regarding the number of pitches he was allowed to throw during his tryout.”

Reasonable Modifications

While “Title II does not include statutory language regarding reasonable modifications,” to be considered “reasonable,” the federal district court noted “an accommodation must enable the qualified individual to perform the ‘essential functions’ of his position.” Moreover, the court found the following regulations were “imposed to avoid discrimination under Title II of the ADA”:

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7).

Further, in cases alleging a failure to make reasonable accommodations, the court noted “the defendant’s duty to provide a reasonable accommodation is not triggered until the plaintiff makes a ‘specific demand’ for an accommodation.” In this case, Defendant claimed “Plaintiff’s only request for modification was terminating Box from his position as volunteer coach for Defendant’s team.”

Plaintiff, however, contended “the request for Box’s removal only came after denial of the initial request for reasonable modification”; i.e., allowing P.M. to try out using the safety equipment purchased by his father. As a result, Plaintiff maintained Defendant had violated Title II of the ADA by “not allowing the use of reasonable modifications when they were made available to Box.”

In response, Defendant disagreed that “allowing P.M. a second tryout with the pitching equipment would be reasonable,” because “a second tryout would not have been effective.” In so doing, Defendant relied on testimony that P.M. “was throwing with the same accuracy a few days later as he had during his tryout.”

In the opinion of the federal district court, Plaintiff had “shown a genuine dispute as to whether Plaintiff’s first request was reasonable and whether Defendant’s denial of said request is a violation under the ADA.” In particular, the court found there was “a genuine dispute of material fact as to whether he was excluded from full participation in Defendant’s program,” which would preclude granting Defendant’s motion for summary judgment.

Discrimination Based on Disability

To prove a violation under Title II of the ADA, the federal district court acknowledged that “a qualified individual must prove that the alleged discrimination occurred ‘by reason of the individual’s disability.’” 42 U.S.C. § 12132. Further, in the analysis of alleged discrimination under the ADA, the court noted “the individual’s disability need not be the sole reason for the alleged discrimination but must be a factor that made a difference in the outcome.”

In this particular instance, Defendant had claimed “the choice to not have Plaintiff play pitcher stemmed from Plaintiff’s trouble with accurately throwing the ball.” In response, Plaintiff contended Coach Box, at least in part, did not choose P.M. for pitcher due to safety concerns stemming from him only having one hand.

In the opinion of the court, based upon Box’s explanation to Karen Martine, it could be inferred that P.M.’s “need to put his glove back on after throwing a ball left him more vulnerable than other boys on the team and thus less likely to be chosen for pitcher.” Accordingly, the court determined a reasonable jury could find that P.M.’s disability served as the “but-for cause” (i.e., substantial determining factor) in his exclusion from the pitcher position.

As a result, the federal district court concluded Defendant’s motion for summary judgment had “failed to meet their burden of showing no genuine dispute of material fact regarding whether Plaintiff, a qualified individual with a disability, was excluded from participation in and denied benefits of Defendant’s program by reasons of his disability.”

Having found “a genuine dispute of material facts” existed regarding Plaintiff’s claim of discrimination on the basis of disability in violation of the ADA, the federal district court had to then determine what, if any, legal relief was available to Plaintiff under the circumstances of this case, specifically, Plaintiff’s request for an injunction and compensatory damages.

An injunction would order the Defendant City to restrain from continuing to deprive P.M. from his legal rights under the ADA. Compensatory damages would provide Plaintiff with a monetary award for any loss or injury sustained by P.M. as a result of disability discrimination in violation of the ADA.

Injunction

As described by the court: “A plaintiff seeking injunctive relief must establish both a past injury and a sufficient likelihood of future injury because of the allegedly unlawful conduct.” Moreover, the court noted an injunction within the context of an ADA claim would require a plaintiff to “plausibly show that [they] will suffer disability discrimination by the defendant in the future.” In addition, the court acknowledged “the threat of future injury” shown by the plaintiff “must be ‘real and immediate, as opposed to merely conjectural or hypothetical.’”

Based upon the following facts alleged in the complaint, the court found Plaintiff “has plainly failed to show a sufficient likelihood of future harm to entitle him to injunctive” relief:

Plaintiff did not play baseball in the park league in 2019 and currently has expressed no interest in playing at any time in the future…. Plaintiff was no longer interested in playing baseball for the Winfield Park league or anywhere else until recently.... Plaintiff has received an invitation to try out for the pitcher position on a travel baseball team in Alabama and is actively preparing for the upcoming 2020 baseball season.

Since “Plaintiff admits that he has no interest or intention in playing in Defendant’s baseball league at any time in the future,” the court found Plaintiff’s complaint did “not suggest any real and imminent threat of future injury or disability discrimination that Plaintiff faces from Defendant.” As a result, the court concluded Plaintiff’s complaint lacked “the required showing of a sufficient likelihood of future harm necessary for injunctive relief.” Moreover, the court found no factual allegations in Plaintiff’s complaint showing any “continuing, present adverse effects from past discrimination.” Accordingly, the federal district court granted Defendant’s motion to dismiss Plaintiff’s request for an injunction.

Compensatory Damages

As noted by the court: “To receive an award of damages, the plaintiff must prove that the entity he has sued engaged in intentional discrimination, which requires a showing of deliberate indifference.” The court defined “deliberate indifference” as follows:

Deliberate indifference occurs when the defendant knew that harm to a federal protected right was substantially likely and failed to act on that likelihood. Deliberate indifference plainly requires more than gross negligence. Instead, this standard requires a deliberate choice.

Moreover, “to hold a government entity liable” to pay monetary damages for violating Title II of the ADA, the court found the plaintiff must demonstrate the following:

[A]n official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the entity’s behalf had actual knowledge of discrimination in the entity’s programs and failed adequately to respond.

Deliberate Indifference?

In this case, Plaintiff alleged Box had acted with deliberate indifference when he discriminated against P.M. by denying him “the opportunity to try out for the pitcher position solely because of his disability.” Assuming these allegations to be true, the court found “Box undoubtedly had knowledge of his own discriminatory actions.” In particular, the court noted Plaintiff’s allegations that “Box made a conscious decision to stand behind his discriminatory acts because he continually and repeatedly excluded Plaintiff from the opportunity to try out for or practice in the pitcher position.”

Moreover, the court found Box had refused to allow Plaintiff to participate after Plaintiff had acquired safety equipment to mitigate the risk and prove to Box that he could take part in a tryout. As a result, the court found Plaintiff’s complaint had sufficiently alleged Box had “acted with deliberate indifference.”

Qualifying Official?

In addition to deliberate indifference, the federal district court acknowledged governmental liability also would require a “qualifying official” to be necessarily “high enough up the chain of command that their acts constitute an official decision by the entity not to remedy the misconduct”:

That individual must have substantial supervisory authority within an organization’s chain of command and complete discretion at a key decision point in the administrative process. A key decision point is a point in the administrative process where the decision is not ordinarily subject to a higher level of review.

For purposes of governmental liability, under the circumstances of this particular case, the court determined that Box lacked the required “substantial supervisory authority” and “total discretion to make key decisions”:

Box cannot qualify as an “official” because he lacked sufficient authority to establish liability on the part of Defendant. Simply put, a volunteer coach in a municipality’s parks and recreation youth baseball league is not high enough in the chain of command of the organization for his acts to be considered official actions on behalf of the organization.

Because Box was an individual acting “as a mere representative under an entity’s supervision and control,” the court found Box “simply does not possess substantial supervisory authority, nor complete discretion at a key administrative decision point, sufficient to establish liability on behalf of the entity.” Lacking in any administrative authority, the court found Box had “merely made the initial decision to deny Plaintiff a benefit of the baseball program.” As a result, the federal district court held Box “did not qualify as an ‘official’ for the purpose of determining whether Defendant acted with deliberate indifference.”

Failure to Act?

The court, however, noted that Plaintiff had named other “agents in the complaint, Beasley, Bryant, Carothers, and Price,” who could “qualify as officials” for the purpose of determining whether Plaintiff may recover compensatory damages. The issue before the court was, therefore, “whether any of the qualified agents acted with deliberate indifference.”

As described by the court, “Plaintiff’s parents notified the qualified agents of their discrimination claims either through an in-person meeting or through mail and email correspondence, proving that the agents knew of the alleged discrimination.” Accordingly, in determining deliberate indifference, the court had to determine “whether any of the named agents failed to act on this information.”

Plaintiff had argued “Beasley, Bryant, and Carothers did not do enough when investigating the complaint from Karen and John,” and thus “the administrative methods and responses from each agent constitute a failure to act.” The federal district court disagreed. In the opinion of the court, “the qualified agents did not fail to act on Plaintiff’s complaints.” In particular, the court found “the Board, including Beasley, Bryant, and Carothers, took several steps in response to the complaints from Karen and John”:

Beasley and Bryant both met with Box and the Martines about the complaint and subsequently attended a team practice. The Board held several meetings where the complaint regarding Box was specifically addressed and investigated.

Moreover, in determining deliberate indifference, the federal district court found “actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent” are “not sufficient to show a failure to act.”

In the absence of deliberate indifference on the part of any qualifying official under the circumstances of this case, the court concluded Plaintiff had failed to show Defendant City of Winfield had engaged in intentional discrimination. As a result, the court held “Plaintiff is not entitled to compensatory damages.”

In the absence of any available legal relief for the alleged violation of Title II of the ADA in this particular case, the federal district court granted the City’s motion for summary judgment and dismissed Plaintiff’s lawsuit.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Law review articles archive (1982 to present)