Evelyn Perez v. Lake County Rowing Association

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 5, 2021
• Docket: 21-10352
• Status: Unpublished

Opinion

USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 1 of 20

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-10352 Non-Argument Calendar ____________________

EVELYN PEREZ, as next friend of minor F.V., Plaintiff-Appellant, versus LAKE COUNTY ROWING ASSOCIATION,

Defendant-Appellee Cross - Claimant,

THE CITY OF CLERMONT, FLORIDA, USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 2 of 20

2 Opinion of the Court 21-10352

Defendant-Appellee, Cross-Defendant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 5:19-cv-00661-JSM-PRL ____________________

Before WILSON, NEWSOM, and BRANCH, Circuit Judges. PER CURIAM: Evelyn Perez (Perez), as next friend and grandmother of mi-

nor child F.V., appeals the district court’s grant of summary judg-

ment in favor of Defendants (collectively, Defendants) Lake

County Rowing Association (LCRA) and the City of Clermont

(Clermont or the City). This dispute arises out of an unsuccessful

attempt by Perez to enter F.V., who is autistic, into a competitive

after-school rowing program run by LCRA. Perez filed suit assert-

ing claims of failure to accommodate under the Americans with USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 3 of 20

21-10352 Opinion of the Court 3

Disabilities Act (ADA) against Defendants with an additional claim

for violation of Section 504 of the Rehabilitation Act against the

City. The district court concluded that Defendants were entitled

to summary judgment in their favor under all of Plaintiff’s claims.

Perez contends that summary judgment was inappropriate because

the district court erroneously applied the wrong standard, placing

a higher burden on Perez than that provided under law. Perez as-

serts that genuine issues of material fact exist that preclude entry of

judgment. After thorough review, because we are satisfied that Pe-

rez has not met the necessary burden to defeat summary judgment

on any count, we affirm.

I.

We review the district court’s grant of summary judgment

de novo, viewing the facts and making all reasonable inferences in

the light most favorable to the nonmoving party. Boigris v. EWC USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 4 of 20

4 Opinion of the Court 21-10352

P&T, LLC, 7 F.4th 1079, 1084 (11th Cir. 2021). We affirm a district

court’s grant of summary judgment when the record shows that

there is no genuine dispute as to any material fact and that the mov-

ing party below is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). A dispute as to a material fact “is genuine if the evi-

dence is such that a reasonable jury could return a verdict for the

nonmoving party.” FindWhat Inv. Grp. v. FindWhat.com, 658

F.3d 1282, 1307 (11th Cir. 2011) (internal quotation marks omitted).

If the moving party satisfies “the initial burden of demonstrating

the absence of a genuine dispute of material fact,” the burden shifts

to the nonmovant to demonstrate the contrary. Id.

II.

The undisputed facts are as follows. F.V. is a minor diag-

nosed with autism. As a result of his diagnosis, F.V. requires vary-

ing degrees of assistance with everyday tasks. LCRA, a local private USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 5 of 20

21-10352 Opinion of the Court 5

organization, offers summer camp and after-school programs, us-

ing a boathouse owned by the City to host its programming. In the

Management Agreement between the Defendants, LCRA assumed

responsibility for the daily activities at the boathouse in exchange

for the “exclusive right to possession and management of all [its]

interior areas.” The City maintained the right to use the outside

surrounding areas and to maintain and repair the boathouse and

surrounding property. LCRA also agreed to report on its activities

to the City to ensure compliance with the City’s obligations to Lake

County under the Capital Projects Funding Program.

LCRA hosts a “learn to row” summer program within which

F.V. participated. At the conclusion of the summer program, Perez

learned about an after-school program offered by LCRA and ex-

pressed interest about enrolling F.V. The after-school program

trains participants for team rowing competition. The managing USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 6 of 20

6 Opinion of the Court 21-10352

coaches of the program agreed that F.V. was not capable of rowing

in team boats in a competitive program. One coach, Coach Knutz,

elaborated that F.V. was not following directions and was non-re-

sponsive in the summer program.

Perez did not apply for F.V. to participate in LCRA’s after-

school program. F.V. was invited to participate in the LCRA sum-

mer camp again, however.

Perez submitted an ADA complaint to the City over the

matter. After the City informed Perez that the program at issue is

offered by LCRA and not the City, the City passed the complaint

to LCRA. A meeting was scheduled between LCRA personnel and

Perez to discuss the complaint. The then-President of LCRA,

Melissa Coleman, proposed to include F.V. in the after-school pro-

gram under the condition that F.V. receive one-to-one instruction.

Coleman stated that LCRA would “still have him practice, be part USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 7 of 20

21-10352 Opinion of the Court 7

of the team, be able to get the uniform, [and] be able to take part

in off-the-water activities together.”

Perez has denied seeking any accommodations for F.V. or

any modifications in the training of LCRA’s personnel, due to her

belief that F.V. did not require any accommodations. Perez has

also denied seeking a modification to any City policies, practices,

or procedures. The parties agree that Perez did not request an ac-

commodation.

Perez did not respond to LCRA about the proposal that it

offered, nor did she respond when LCRA attempted to schedule a

follow-up meeting with F.V.’s family. Perez instead filed suit in

federal district court against both the City and LCRA. The district

court granted summary judgment in favor of Defendants on all

counts. This case comes before us on Perez’s appeal of the district

court decision. USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 8 of 20

8 Opinion of the Court 21-10352

III.

The Americans with Disabilities Act (ADA) provides that

“[n]o individual shall be discriminated against on the basis of disa-

bility in the full and equal enjoyment of the goods, services, facili-

ties, privileges, advantages, or accommodations of any place of

public accommodation by any person who owns, leases (or leases

to), or operates a place of public accommodation.” 42 U.S.C. §

12182(a).

The ADA protects against three main types of discrimina-

tion. As relevant here, “Title II prohibits discrimination by public

entities (state or local governments); and Title III prohibits discrim-

ination by a ‘place of public accommodation,’ which is a private

entity that offers commercial services to the public.” A.L. by &

through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d

1270, 1289 (11th Cir. 2018). Here, Perez’s ADA claims implicate USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 9 of 20

21-10352 Opinion of the Court 9

Title II as alleged against the City and Title III as alleged against

LCRA.

IV.

On appeal, Perez asserts that summary judgment was im-

properly granted to Defendants for the following reasons: (1) the

City failed to accommodate F.V. in violation of Title II of the ADA;

(2) LCRA failed to accommodate F.V. in violation of Title III of the

ADA; and (3) the City discriminated against F.V. in violation of Sec-

tion 504 of the Rehabilitation Act. We turn to each of these argu-

ments in order.

A. Count I: Violation of Title II of the ADA by the

City

With respect to Plaintiff’s charge under Title II of the ADA,

we ask if, viewing the evidence in the light most favorable to the

Plaintiff, there are any genuine issues of material fact concerning

whether the City is, indeed, involved with the program. USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 10 of 20

10 Opinion of the Court 21-10352

Neither party denies that the City is a public entity nor that

F.V. is a qualified individual with a disability. Under Title II, Perez

bears the burden of demonstrating that F.V. “was either excluded

from participation in or denied the benefits of a public entity’s ser-

vices, programs, or activities, or was otherwise discriminated

against by the public entity; and that the exclusion, denial of bene-

fit, or discrimination was by reason of [his] disability.” Silberman

v. Miami Dade Transit, 927 F.3d 1123, 1134 (11th Cir. 2019).

The crux of the Title II controversy concerns the second and

third prongs. With respect to the third prong, Perez contends that

LCRA’s proposal that F.V. be given one-to-one instruction in a seg-

regated class effectively excluded F.V. from the after-school pro-

gram, constituting discrimination. We have no need to evaluate

Perez’s argument on the third prong, because Perez fails to satisfy

the second. USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 11 of 20

21-10352 Opinion of the Court 11

Under Title II, Perez must show that the public entity dis-

criminated against her child. To this point, Perez argues that (1)

the after-school rowing program is effectively a service offered by

the City, and (2) in any event, the City, as landlord to LCRA, is

liable because it was aware of and benefitted from LCRA’s activi-

ties. The City responds that summary judgment was properly

granted because the after-school program was not a service, pro-

gram, or activity of the City, F.V. was not excluded from participa-

tion, and F.V. failed to request an accommodation from the City.

Title II, based on its plain language, applies only to public

entities. Edison v. Douberly, 604 F.3d 1307, 1308 (11th Cir. 2010).

We held in Edison that “a private corporation is not a public entity

merely because it contracts with a public entity to provide some

service.” Id. at 1310. USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 12 of 20

12 Opinion of the Court 21-10352

In support of her argument, Perez makes much of the appli-

cation for funds from Lake County completed by Defendants, un-

der which Defendants express an intention to work together to

“build a rowing infrastructure in South Lake County.” No factual

support exists in the record for Perez’s assertion that the City stated

that it could not host “its rowing program” without LCRA. Perez

does not even demonstrate that the City knows anything about the

operation of the LCRA after-school program beyond that it exists.

This is particularly apparent in the face of the City’s evidence to the

contrary. Even if she could demonstrate that the City contracted

with LCRA to offer a city service, our holding in Edison defeats her

argument.

It is clear from this precedent that the program at issue must

be offered by the public entity itself. To this point, there is no sup-

port in the record for Perez’s claim that the program is a City USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 13 of 20

21-10352 Opinion of the Court 13

offering. This is what is required to show that the City is liable for

the LCRA after-school program.

Regarding the other elements of this claim, Perez does not

even allege that the City engaged in discrimination. Perez has fur-

ther denied seeking a modification to any City policy, practice, or

procedure. Either of these findings alone would allow for sum-

mary judgment in the City’s favor. However, as demonstrated

above, we do not need to even get this far.

Because Defendant does not provide any factual support in

the record to support her contention that the City directly offered

the after-school program, we affirm the district court in granting

summary judgment in favor of Defendant City regarding this

claim.

B. Count II: Violation of Title III of the ADA Against

LCRA USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 14 of 20

14 Opinion of the Court 21-10352

Here, as in the claim against the City, neither party contests

whether F.V. is a qualified individual nor whether Appellee LCRA

leases or otherwise operates a place of public accommodation. Un-

der Title III, “[n]o individual shall be discriminated against on the

basis of disability in the full and equal enjoyment of the goods, ser-

vices, facilities, privileges, advantages, or accommodations of any

place of public accommodation by any person who owns, leases

(or leases to), or operates a place of public accommodation.” 42

U.S.C. § 12182(a) (emphasis added). Our analysis centers on

whether Perez has created a genuine issue of material fact concern-

ing whether LCRA discriminated against F.V. based on his disabil-

ity by allegedly failing to accommodate him.

Title III provides that it is discriminatory to afford a disabled

person only “the opportunity to participate in or benefit from” un-

equal services or facilities. 42 U.S.C. § 12182(b)(1)(A)(ii). This USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 15 of 20

21-10352 Opinion of the Court 15

includes instances in which a place of public accommodations has

failed to make “reasonable modifications” to procedures “neces-

sary” to provide its services and facilities to the disabled. 42 U.S.C.

§ 12182(b)(2)(A)(ii). Where, as here, a concededly disabled plaintiff

alleges discrimination by a private entity in violation of Title III of

the ADA, he “bears the burden of proving … that his requested

modification is both ‘reasonable’ and ‘necessary.’” See id.; A.L. by

& through D.L., 900 F.3d at 1292. Once the plaintiff has met his

burden, the burden shifts to the private entity to demonstrate

whether modifications requested by the plaintiff would “funda-

mentally alter the nature of” its services and facilities. See id.

Perez accuses LCRA of discriminating against F.V. because

the accommodation that it suggested was to segregate him from

the other program participants. But Perez confuses the party upon

whose burden it rests to investigate and provide options for USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 16 of 20

16 Opinion of the Court 21-10352

accommodations. It is the plaintiff who shoulders the burden of

identifying a reasonable accommodation that would enable him to

perform the “essential functions” of the position—not the defend-

ant. See Willis v. Conopco, Inc., 108 F.3d 282, 283–84 (11th Cir.

1997) (per curiam). The private entity’s obligation to provide a rea-

sonable accommodation does not come into effect until the plain-

tiff first meets his “burden of identifying an accommodation and

demonstrating that it is reasonable.” Frazier-White v. Gee, 818

F.3d 1249, 1255–56 (11th Cir. 2016).

By her own admissions and based on a review of the record,

it is clear Perez did not request an accommodation from LCRA.

Because Perez cannot meet this initial burden, she thus lacks a

cause of action. Accordingly, we conclude that the district court

acted appropriately in awarding summary judgment on the Title

III claim. USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 17 of 20

21-10352 Opinion of the Court 17

C. Count III: Violation of the Rehabilitation Act

Against the City

Perez’s second claim alleges that the City violated the Reha-

bilitation Act, codified as 29 U.S.C. § 794. The Rehabilitation Act

“makes it unlawful for any “program or activity receiving Federal

financial assistance” to discriminate “solely by reason of his or her

disability.” 29 U.S.C. § 794(a).

Perez states that “Clermont receives federal funding, and

that federal funding goes into the general fund…[which] is used to

fund the Parks and Recreation Department.” Without support

from the record for the statement that the Parks and Recreation

Department receives federal funding, however, Perez’s assertion is

mere conjecture. On the other hand, the record does contain the

uncontradicted testimony of Clermont’s City Manager that the

general fund of the City does not receive any federal funding. We

will not adopt the plaintiff’s version of facts when that version “is USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 18 of 20

18 Opinion of the Court 21-10352

blatantly contradicted by the record.” Morton v. Kirkwood, 707

F.3d 1276, 1284 (11th Cir. 2013). This is true here.

Hence, we agree with the district court that “the record is

void of evidence of … any department receiving federal funding.”

(emphasis added). Placing even this point to the side, the LCRA

program does not fall within any Department. This is because,

consistent with our reasoning with regard to the Title II claim, the

LCRA program is not a program of the City at all.

Perez does not offer any evidence to create a genuine issue

of material fact to counter the evidence produced by the City with

respect to its receipt of federal funds. For this reason, we affirm the

district court in granting summary judgment for the Appellee City

concerning the Rehabilitation Act claim.

IV. USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 19 of 20

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In sum, no rational juror could conclude that, given the cir-

cumstances, the after-school program at issue in this case was a pro-

gram of the City. On this basis, we affirm the district court in grant-

ing summary judgment to the City on Perez’s Title II claim. No

rational juror could conclude that the Parks and Recreation depart-

ment received federal funds after reviewing the evidence presented

by the parties. Further, no evidence shows that the LCRA after-

school program is a program of a department of the City at all. On

this basis, we affirm the district court in granting summary judg-

ment to the City on Perez’s Rehabilitation Act claim. Finally, no

reasonable juror could conclude that Perez requested an accom-

modation from LCRA; therefore, Perez has no cause of action for

a failure to accommodate. On this basis, we affirm the district

court in granting summary judgment to LCRA on Perez’s Title III

claim. USCA11 Case: 21-10352 Date Filed: 10/05/2021 Page: 20 of 20

20 Opinion of the Court 21-10352

AFFIRMED.