Opinion
No. 1:20-cv-00953-RLY-MPB
2022-05-19
Shellie ELLISON, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
Kenneth J. Falk, Stevie J. Pactor, ACLU of Indiana, Indianapolis, IN, for Plaintiff. J. Taylor Kirklin, United States Attorney's Office, Indianapolis, IN, for Defendant.
Kenneth J. Falk, Stevie J. Pactor, ACLU of Indiana, Indianapolis, IN, for Plaintiff.
J. Taylor Kirklin, United States Attorney's Office, Indianapolis, IN, for Defendant.
ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
RICHARD L. YOUNG, JUDGE In this action, Plaintiff, Shellie Ellison, alleges that Defendant, United States Postal Service ("USPS"), violated her rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), by failing to provide her physical access to the post office in Shelbyville, Indiana. By way of relief, Plaintiff seeks an injunction requiring the USPS to construct a ramp or provide other means of physical access to the Shelbyville facility.
Now before the court are the parties’ cross-motions for summary judgment. For the reasons that follow, Plaintiff's motion is DENIED , and the USPS's motion is GRANTED .
I. Background
Plaintiff is a resident of Shelbyville, Indiana. (Filing No. 32-1, Ellison Dep. at 7). The City of Shelbyville has one post office, located at 103 E. Washington Street, that serves between 175 and 250 persons a day. (Filing No. 32-2, Hedges Dep. at 9, 60; Filing No. 32-3, Del Hierro Dep. Ex. 5 at 1). The USPS owns the building, which was constructed and first occupied around 1920. (Del Hierro Dep. Ex. 2 at 2).
Plaintiff has used a wheelchair for mobility since 1997. (Ellison Dep. at 10–11). The Shelbyville post office is not accessible to wheelchair users; its public entrance can only be accessed by a set of 10 stairs. (Del Hierro Dep. Ex. 5 at 1–2). There is a ramp at the loading dock in the rear of the facility, but it leads to a door that members of the public are not permitted to enter. (Id. Ex. 5 at 3–4; Hedges Dep. at 29–30). The USPS operates three other post offices within a 10-mile radius of Shelbyville. (Filing No. 36-5, Kirklin Decl. Ex. A at 1–2). All of those locations—in Fairland, Waldron, and Manilla, Indiana—are wheelchair accessible. (Filing No. 36-6, Enyart Decl. Exs. 1 & 2; Filing No. 36-7, Neal Decl.).
Those able to climb the Shelbyville post office's stairs will find PO boxes just inside the main doors. (Hedges Dep. at 9–10). Patrons who rent these PO boxes may access them 24 hours a day, seven days a week. (Id. at 14). Behind another set of glass doors is the "retail lobby." (Id. at 11 & Ex. 11 at 3). Its hours are 8:00 a.m. to 4:30 p.m., Monday through Friday, and 8:00 a.m. to 12:00 p.m. on Saturday. (Kirklin Decl. Ex. A at 1). There, customers can, among other things: purchase stamps, shipping supplies, greeting cards, and gift cards; inquire about different types of mail (e.g. express, priority, retail ground, media mail, and bound print) and insurance for mailed items; and receive assistance with taping and weighing their packages. (Hedges Dep. at 12–13, 24–28). The retail lobby also contains official USPS envelopes and packaging as well as a worktable with various forms including certified and return mail receipts, signature confirmation cards, and hold-mail cards. (Id. at 13, 23–24).
There is no dispute that the Fairland, Waldron, and Manilla post offices also offer 24/7 access to PO boxes.
By comparison, the retail hours at the Fairland, Waldron, and Manilla locations are as follows:
Fairland: 8:00 a.m. to 1:00 p.m. and 2:00 p.m. to 4:30 p.m., Monday through Friday, and 8:00 a.m. to 12:00 p.m. on Saturday.
Waldron: 8:00 a.m. to 11:00 a.m. and 1:00 p.m. to 4:00 p.m., Monday through Friday, and 8:00 a.m. to 10:00 a.m. on Saturday.
Manilla: 8:00 a.m. to 12:00 p.m., Monday through Friday, and 9:00 a.m. to 11:00 a.m., on Saturday. (D'Angelo Decl. Ex. H–J).
In addition its physical locations, the USPS maintains a website where customers can pay for postage and print shipping labels, as well as access information about insurance, preparing packaging, and scheduling a pickup. (Filing No. 36-8, Send Mail & Packages). Customers can also browse and purchase various items at the virtual "Postal Store," including stamps, packaging, mailing supplies, greeting cards and envelopes, and gifts. (Filing No. 36-9, Postal Store). The USPS's flat rate boxes and envelopes for Priority Mail and Priority Mail Express are also available for free on the website. (Filing No. 36-10, Shipping Supplies).
In 2015, Plaintiff grew frustrated by her inability to enter the Shelbyville post office to transact business. (Ellison Dep. at 21). To obtain services at the facility, she had to park her car at the rear of the building and either call the post office or exit her vehicle and press a buzzer in the middle of a steep ramp connected to the loading dock. (Id. at 21–22). A USPS employee would then come out to assist her. (Id. at 23). If, for example, she sought to mail a package, the employee would take it inside to weigh along with her credit card to process the transaction. (Id. ). All the while, Plaintiff would remain outside. (Id. ).
Plaintiff eventually filed a complaint with the United States Access Board seeking to make the front entrance accessible. (Id. at 21, 23, 34). Her complaint also highlighted various barriers to service accessibility at the loading dock. (Id. Ex. 2 at 1–4). The Access Board concluded that it could not force a change to the front entrance because the main steps of the Shelbyville post office "are original to the building's construction (prior to 1968) and have not been altered since." (Id. Ex. 2 at 3). Nevertheless, in response to Plaintiff's complaint to the Access Board, the USPS agreed to install a new van accessible parking space at the loading dock, rebuild the ramp to make it less steep, relocate the existing call button from the middle to the top of the ramp, and install a new buzzer at the front of the accessible parking space. (Id. Ex. 3 at 1). These modifications were completed in 2016 at a cost of approximately $60,000. (Id. ; Filing No. 36-14, Ramp Construction Payment). Following the changes, Plaintiff explains that mail trucks at the loading dock have blocked her use of the accessible parking space on multiple occasions; she also notes that postal employees have at various times failed to answer her telephone calls for assistance. (Ellison Dep. at 24, 60–62 & Ex. 6).
Plaintiff concedes that the front entrance of the Shelbyville post office is not subject to the detailed standards of the Architectural Barriers Act ("ABA"), 42 U.S.C. § 4151 et seq. , which only apply to federal buildings built or altered after 1968.
In 2017, Plaintiff procured a PO box at the Shelbyville post office for "Wheels on the Ground," a non-profit organization she founded to educate the public on disability and accessibility issues. (Id. at 13 & Ex. 1 at 7). Plaintiff relies on Wheels on the Ground's board members or her family to retrieve the PO box's contents. (Id. at 30–31). On occasion she has gone to the post office and called to have an employee bring the mail to her car. (Id. at 31–32). But she would like to be able to retrieve the contents of the mailbox herself. (Filing No. 32-4, Ellison Aff. at ¶ 3). The USPS offered to have the contents of Wheels on the Ground's PO box delivered to Plaintiff's home. (Del Hierro Dep. Ex. 7 at 2). Plaintiff refused the offer because she wanted to keep the business mail separate from her personal mail. (Ellison Dep. Ex. 1 at 3–4). She also wanted Wheels on the Ground's board members to be able to retrieve mail from the PO box. (Id. ).
Plaintiff has not attempted to obtain services from the Shelbyville post office in recent years, last visiting only one or two times in 2019. (Id. at 30). She now goes to a private company in Shelbyville when she needs to mail packages. (Id. at 24). However, she wishes to be able to enter the Shelbyville post office to "utilize all of the services available in the retail area" and access Wheels on the Ground's PO box, which the organization still maintains. (Ellison Aff. at ¶ 4).
In 2019, the City of Shelbyville offered to pay for the addition of a ramp to the front entrance of the post office. (Del Hierro Dep. Ex. 10 at 1). The USPS declined the offer, citing regulations that prohibit it from accepting donations of "physical improvements, including, without limitations, exterior improvements, ... additions, [or] renovations." (Id. at 35; Filing No. 36-16, USPS Handbook § 334.2).
II. Legal Standard
Summary judgment is appropriate when the moving party shows that there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The ordinary summary judgment standard remains unchanged when the parties file cross-motions for summary judgment: the court construes all facts and inferences arising from those facts in favor of the party against whom the motion under consideration is made. Blow v. Bijora, Inc. , 855 F.3d 793, 797 (7th Cir. 2017).
Because the relevant facts are not in dispute and the parties’ cross-motions address the same issues of law, the court considers the motions together.
III. Discussion
Plaintiff argues that the USPS has violated her rights under Section 504 of the Rehabilitation Act by failing to provide her physical access to the Shelbyville post office. The court, though sympathetic to her claim, disagrees.
Section 504 provides:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794(a). The Rehabilitation Act defines "program or activity" to mean "all of the operations of" a covered entity. Id. § 794(b)(1)(A).
Much like Section 504, Title II of the American with Disabilities Act ("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. "Because Title II was modeled after section 504," the Seventh Circuit generally "appl[ies] precedent under one statute to cases involving the other." Lacy v. Cook Cnty., Ill. , 897 F.3d 847, 852 n.1 (7th Cir. 2018).
"In order to make out a prima facie case of discrimination under ... the Rehabilitation Act, a plaintiff must show: (1) that [s]he suffers from a disability as defined in the statute[ ], (2) that [s]he is qualified to participate in the program in question, and (3) that [s]he was either excluded from participating in or denied the benefit of that program based on h[er] disability." Novak v. Bd. of Trs. of S. Ill. Univ. , 777 F.3d 966, 974 (7th Cir. 2015) (citing Jackson v. City of Chi. , 414 F.3d 806, 810 (7th Cir. 2005) ). The parties do not dispute that Plaintiff is a qualified individual with a disability under the Act. Their arguments center on the third element of her prima facie case: whether Plaintiff has been denied the benefit of the USPS's services because she is unable to enter the Shelbyville post office. Broadly, those services include the ability to rent a PO box, purchase various retails items, obtain advice on mailing matters, and receive assistance with mailing items like packages.
The Supreme Court has explained that an executive agency, like the USPS, discriminates against an otherwise qualified handicapped individual when it fails to provide "meaningful access to the benefit ... [it] offers." Alexander v. Choate , 469 U.S. 287, 300–01, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (emphasis added); Am. Council of the Blind v. Paulson , 463 F. Supp. 2d 51, 58 (D.D.C. 2006) (observing that "[t]he question of what is ‘meaningful access’ in a specific case is ultimately one of law"), aff'd , 525 F.3d 1256 (D.C. Cir. 2008). In order to assure meaningful access, "reasonable accommodations in the [agency]’s program or benefit may have to be made." Choate , 469 U.S. at 301, 105 S.Ct. 712 ; see also Wis. Cmty. Servs., Inc. v. City of Milwaukee , 465 F.3d 737, 748 (7th Cir. 2006) ("[T]he Rehabilitation Act requires public entities to modify federally assisted programs if such a modification is necessary to ensure that the disabled have equal access to the benefits of that program.").
An individual "may be deprived of meaningful access to public programs due to architectural barriers." Disabled in Action v. Bd. of Elections in N.Y. , 752 F.3d 189, 197 (2d Cir. 2014). Accordingly, structural modifications to older buildings not otherwise required by law (i.e. "existing facilities") may be necessary "to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from [public] programs." Choate , 469 U.S. at 304, 105 S.Ct. 712 ; id. at 297, 105 S.Ct. 712 (the "elimination of architectural barriers was one of the central aims of the Act").
Whether structural modifications to existing facilities are required, however, depends on the availability of alternative means to facilitate program access. See Rose v. U.S. Postal Serv. , 774 F.2d 1355, 1363 (9th Cir. 1984) ; Fox v. U.S. Postal Serv. , No. 6:05-CV-053-C, 2007 WL 9833992, at *4 (N.D. Tex. Jan. 25, 2007). Indeed, Section 504's "emphasis on program accessibility rather than facilities accessibility was intended to ensure broad access to public services, while, at the same time, providing public entities with the flexibility to choose how best to make access available." Parker v. Universidad de Puerto Rico , 225 F.3d 1, 6 (1st Cir. 2000) (internal quotations and citation omitted) (emphasis added).
This "flexible" approach is reflected in regulations that various federal agencies have promulgated to implement Section 504's mandates. The Department of Health and Human Services’ ("HHS") regulations, for example, provide that a "recipient [of federal funds] shall operate its program or activity so that when each part is viewed in its entirety, it is readily accessible to handicapped persons." 45 C.F.R. § 84.22(a). Notably, this "does not require a recipient to make each of its existing facilities or every part of a facility accessible to ... handicapped persons." Id. Nor is a recipient "required to make structural changes in existing facilities where other methods are effective" in making its program accessible. 45 C.F.R. § 84.22(b). For example, a recipient may comply with Section 504 through the delivery of services at "alternate accessible sites." Id. ; see also Tennessee v. Lane , 541 U.S. 509, 532, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) ("[I]n the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with [ADA] Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites ....").
The Supreme Court has noted that HHS's regulations are "an important source of guidance on the meaning of § 504." Choate , 469 U.S. at 304 n.24, 105 S.Ct. 712.
The Department of Justice's regulations implementing Section 504 similarly provide that a recipient is "not necessarily require[d] ... to make each of its existing facilities or every part of an existing facility accessible to and usable by handicapped persons." 28 C.F.R. § 41.57.
USPS regulations also provide that, in determining whether structural modifications should be made to its facilities, "due regard is to be given to ... [t]he availability of other options to foster service accessibility." 39 C.F.R. § 255.8.
With this framework in mind, the court turns to the case at hand. Plaintiff argues that she lacks meaningful access to the USPS's services because the Shelbyville post office, which is closest to her home, is not physically accessible to wheelchair users. The USPS counters that it has provided Plaintiff meaningful access to its services through a variety of alternative means, including delivery of services at the rear of the Shelbyville facility, at alternate accessible postal locations, on the USPS's website, and by special delivery of certain items to Plaintiff's home.
The court has doubts about whether service at the Shelbyville post office's loading dock complies with Section 504. That said, the loading dock is not Plaintiff's only access point to the USPS's "program or activity." After careful consideration of the parties’ arguments, the court concludes that Plaintiff has meaningful access to the USPS's services due to (1) the presence of three, wheelchair-accessible post offices in close proximity to her home, each with around-the-clock PO box access; and (2) the availability of retail items for purchase on the USPS's website.
Plaintiff maintains that it is "simply unreasonable" to suggest she should be forced to "expend additional time and expense travelling" to the alternate facilities solely because she cannot climb stairs. (Filing No. 41, Pl.’s Mem. in Resp. at 14). Yet, as outlined above, the USPS may comply with Section 504 through the delivery of services at alternate accessible locations. And that may require an individual to travel farther than she otherwise would if all facilities were accessible—even, perhaps, outside the geographical limits of her hometown.
The caselaw provides limited guidance on how close an alternate accessible site must be to satisfy Section 504. See, e.g. , G.P. v. Claypool , 466 F. Supp. 3d 875, 889 (N.D. Ill. 2020) (observing that alternate accessible schools were "in relatively close proximity to Plaintiff's home"); Hanebrink v. Adams , No. 8:08-74-HMH, 2009 WL 3571539, at *4 (D.S.C. Oct. 26, 2009) ("The location of one ‘readily accessible’ facility within close proximity of [the plaintiff's] home is sufficient ....").
Plaintiff must already drive seven minutes from her home to the Shelbyville post office. (Filing No. 46, Joint Stipulation). By comparison, her home is an 11, 13, and 15-minute drive from the Waldron, Manilla, and Fairland facilities, respectively. (Id. ). Thus, assuming Plaintiff left her home with the sole purpose of visiting the post office, obtaining service at an alternate accessible location would cause her approximately four to eight minutes of extra driving time, one way. As the court sees it, this inconvenience does not violate the Rehabilitation Act. See Choate , 469 U.S. at 299, 105 S.Ct. 712 ("Any interpretation of § 504 must ... be responsive to two powerful but countervailing considerations—the need to give effect to the statutory objectives and the desire to keep § 504 within manageable bounds.").
Plaintiff cites Celeste v. East Meadow Union Free School District in support of her position that the additional driving time is unreasonable. 373 F. App'x 85 (2d Cir. 2010). There, in an unpublished opinion, the Second Circuit affirmed a jury's conclusion that a student with cerebral palsy lacked meaningful access to programs offered at the athletic fields behind his school where "minor architectural barriers ... forced him to take a ten minute detour each way in order to reach and return from [those] fields." Id. at 88. Putting aside the fact that the "detour" in this case is less than ten minutes each way, Celeste itself is factually inapposite. The programs at issue in Celeste were offered in one location—the athletic fields—so the delay "detract[ed] from [the student]’s participation as a manager of the football team" and "cut almost in half his time to participate in a typical forty-five minute physical education class." Id. Here, there is no reason to conclude that Plaintiff would obtain any lesser benefit from the USPS by virtue of travelling an extra four to eight minutes to an alternate accessible facility.
To be sure, the alternate accessible post offices do have more limited retail hours. While the Shelbyville post office is open 46.5 hours a week, (Kirklin Dec. Ex. A at 1), the post offices in Fairland, Waldron, and Manilla are open 41.5, 32 and 22 hours, respectively, (id. ; D'Angelo Decl. Ex. H–J). The difference in operating hours, however, is not as stark as the aggregate numbers might suggest. The disparity between the Shelbyville and Fairland offices boils down to one hour each weekday around lunch. Where the Fairland post office closes Monday to Friday from 1:00 p.m. to 2:00 p.m., the Shelbyville facility does not. Perfection simply is not the standard for determining whether Plaintiff has equal access to the benefit of the USPS's services. See Kirola v. City & Cty. of S.F. , 860 F.3d 1164, 1184 (9th Cir. 2017) (noting that "perfect accessibility is not the applicable standard" under Title II's implementing regulations); see also Am. Council of the Blind , 463 F. Supp. 2d at 58.
In her response brief, Plaintiff cites a former Shelbyville post office employee's deposition testimony to establish that the Shelbyville facility is open 49 hours per week. (Pl.’s Mem. in Resp. at 14). Yet she relies on the USPS's website to establish the operating hours at the alternate accessible post offices. The website provides that the Shelbyville post office is open 46.5 hours per week. For consistency, the court relies on the USPS's website for all facilities. The difference in Shelbyville's operating hours, it should be noted, does not change the court's analysis.
The court acknowledges that it is not clear from the record whether the alternate locations sell the same or similar retail items as the Shelbyville post office. To the extent that the retail offerings meaningfully differ, Plaintiff may browse and purchase a wide array of products through the USPS's website, including stamps, packaging, mailing supplies, greeting cards and envelopes, and gifts. There is no dispute that Plaintiff has internet access and the ability to purchase these items online. Plaintiff argues that the USPS's online store, unlike the Shelbyville post office, does not offer "certain holiday specialty mailing supplies and gift cards" for purchase. (Pl.’s Mem. in Resp. at 9). She also notes that website's greeting cards and "premium" shipping supplies (like a postal scale) are subject to shipping and handling fees not charged in-person. (Id. ). True enough. Program access, however, "does not operate at such a narrow level of review." See Kirola , 860 F.3d at 1184 ; id. ("There may be something unique about ... every facility," but Title II's implementing regulations "require[ ] only that the program as a whole be accessible, not that all access barriers ... be remedied.").
The court shares Plaintiff's frustration that the Shelbyville post office is not physically accessible to wheelchair users. Section 504, however, does not require the USPS to make structural changes at the Shelbyville facility if it can provide Plaintiff meaningful program access through other means. The bottom line is that the USPS provides Plaintiff meaningful access to its services at several post offices surrounding Shelbyville and through its online store. Accordingly, Plaintiff has not been "excluded from participating in or denied the benefit of" the USPS's "program or activity" because of her disability. Novak , 777 F.3d at 974. Her Section 504 claim thus fails as a matter of law.
As a final matter, the parties argue whether building a ramp at the front of the Shelbyville post office would impose an undue burden on the USPS. They also argue whether the USPS has waived any such defense by failing to plead it. Because the court has determined that physical modifications to the Shelbyville facility are not required to provide Plaintiff meaningful access to the USPS's services, the court need not address these arguments.
IV. Conclusion
For the foregoing reasons, the court concludes that Plaintiff has meaningful access to the USPS's mailing and related services. Therefore, the USPS has not violated Plaintiff's rights under Section 504. Accordingly, Plaintiff's motion for summary judgment (Filing No. 32 ) is DENIED , and the USPS's cross-motion for summary judgement (Filing No. 36 ) is GRANTED . Plaintiff's motion to file a supplemental declaration (Filing No. 47 ) is DENIED as MOOT . Final judgment shall issue accordingly.
SO ORDERED this 19th day of May 2022.