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Childress v. Fox Associates, LLC

United States District Court, E.D. Missouri, Eastern Division

April 18, 2018

MARIA C. CHILDRESS, a/k/a Tina Childress, et al., Plaintiffs,
FOX ASSOCIATES, LLC, d/b/a Fabulous Fox Theatre, Defendant.



         Title III of the Americans with Disabilities Act (ADA) prohibits owners and operators of places of public accommodation such as the Fabulous Fox Theatre from discriminating on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(a). Such places are prohibited from affording people with disabilities “the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals, ” id. § 12182(b)(1)(A)(ii); and are required to provide “auxiliary aids and services” as may be necessary to “ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals, ” id. § 12182(b)(2)(A)(iii). A public accommodation must provide appropriate auxiliary aids and services to ensure “effective communication” with individuals with disabilities. 28 C.F.R. § 36.303(c)(1).

         Plaintiffs Maria C. “Tina” Childress and Mary Stodden are deaf individuals who each have cochlear implants that allow them to function adequately under ideal circumstances. Even with this assisted hearing, however, the nature of their hearing impairment prevents them from understanding the dialogue and lyrics of live theater. Neither plaintiff knows or uses American Sign Language (ASL). And, because of the nature of their hearing loss, volume-enhancing devices do not aid in their ability to hear. Childress and Stodden are members of the Association of Late Deafened Adults (ALDA) and the Greater St. Louis Chapter of the Hearing Loss Association of America (HLAA-StL), non-profit organizations who support and advocate for persons with hearing loss. Each organization has members who have attended performances at the Fox. ALDA and HLAA-StL are also named as plaintiffs and proceed in this action on behalf of its members. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 342-43 (1977) (standing of association to bring suit on behalf of its members).

         Plaintiffs allege that, because the full and equal enjoyment of the Fox Theatre includes the ability to understand the dialogue and lyrics of live theater during Broadway-type performances, effective communication for those who cannot hear what is being said or sung requires hands-free, line-of-sight captioning.

         Plaintiffs further argue that, by providing captioning for only certain performances and not all scheduled performances, the Fox Theatre provides services, privileges, advantages, and accommodations to deaf Fox patrons that are not equal to those afforded hearing patrons, and thus that they are treated differently from hearing patrons, in violation of 42 U.S.C. §§ 12182(b)(1)(A)(ii) and 12182(b)(2)(A)(iii).

         In their complaint, plaintiffs seek injunctive relief, and specifically that Fox Theatre be ordered to: 1) provide open or closed captioning at all performances of theatrical productions; 2) publicize the availability of captioning and provide means to request captioning; 3) enable persons to purchase tickets to captioned performances by non-telephonic means, including by electronic mail; and 4) provide hands-free, line-of-sight captioning devices. In their motion for summary judgment, plaintiffs clarify that they ask for Fox Theatre to provide captioning only when requested. They make an additional request in their motion, however, that Fox Theatre be ordered to establish a procedure for it to consider and respond to customer feedback about captioning.

         Both sides have moved for summary judgment.

         Legal Standard

         Summary judgment must be granted when the pleadings and proffer of evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). I must view the facts in the light most favorable to the nonmoving party, “but only ‘if there is a genuine dispute as to those facts.'” RSA 1 Ltd. P'ship v. Paramount Software Assocs., Inc., 793 F.3d 903, 906 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042).

         The parties agree that the relevant facts are not in dispute, but each side argues that the law as applied to those facts requires that judgment be entered in their respective favor. For the following reasons, plaintiffs are entitled to judgment as a matter of law on their claims of discrimination. They are not legally entitled, however, to all of the relief they seek. I will therefore grant their motion for summary judgment and enter the relief to which they are entitled under the law. Defendant's motion for summary judgment will be denied.

         Evidence Before the Court on the Motions

         The Fox Theatre is a 4500-seat indoor theater and stage venue. It provides a wide range of accommodations for guests with disabilities and provides information regarding these accommodations on its public website.

         In April 2016, plaintiff Childress contacted Fox Theatre to request captioning for Rent, a Broadway production scheduled to perform at the Fox in May 2017. Fox responded that it had no plan to provide captioning. Childress's counsel thereafter sent a letter to Fox regarding the ADA's requirement for captioning, but the letter went unanswered. Childress then filed this lawsuit in June 2016.

         After the lawsuit was filed, and after negotiations and discussions among the parties, Fox agreed to provide prescheduled captioning for one performance of some of its Broadway productions, provided that captioning was requested two weeks in advance of that prescheduled performance.[1] Captioning for these Broadway shows is typically prescheduled for a single Saturday matinee performance of each show. Fox publicizes ...

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