April 19, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:14-cv-06259 -
Robert W. Gettleman, Judge.
Ripple, Manion, and Kanne, Circuit Judges.
RIPPLE, CIRCUIT JUDGE.
wheelchair-using detainees brought this lawsuit against Cook
County, Illinois, and the Sheriff, alleging violations of the
Americans with Disabilities Act ("ADA") and the
Rehabilitation Act ("RHA"). Their claims are based
on purportedly inaccessible ramps and bathroom facilities at
six county courthouses. The district court certified a class
for purposes of injunctive relief, and the named plaintiffs
also sought damages individually for the same alleged
district court held an evidentiary hearing on the equitable
claims first. The parties then filed cross motions for
summary judgment on their individual damage claims. The court
entered a permanent injunction based on its factual findings
and legal conclusion that the defendants had violated the
ADA. Then, relying largely on these findings, the court
granted partial summary judgment to the plaintiffs on
liability in their personal damage actions. The court then
submitted the question of individual damage awards to a jury.
Meanwhile, it granted a supplemental permanent injunction to
that the district court improperly relied on its own findings
of fact when it granted partial summary judgment to the
plaintiffs on their damage claims. When equitable and legal
claims are joined in a single suit, common questions of fact
should be tried first to a jury absent extraordinary
circumstances or an unequivocal waiver by all parties of
their jury trial rights. The record before us does not
reflect any such waiver by the defendants. We therefore
vacate the grant of partial summary judgment and remand for a
jury trial on the question of liability. As a result, we also
vacate the court's grant of permanent injunctive relief
and vacate the jury's determinations of damage awards. We
leave undisturbed the district court's decisions to
certify the class and to grant supplemental injunctive relief
to the class. This latter injunction is not related to the
questions that should have been submitted to the jury.
Accordingly, we affirm in part, vacate in part, and remand
for further proceedings.
1990, Congress enacted the ADA to provide "a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities."
42 U.S.C. § 12101(b)(1). This sweeping legislation was
animated by the finding that "individuals with
disabilities continually encounter various forms of
discrimination," ranging from "outright intentional
exclusion" to "the discriminatory effects of
architectural, transportation, and communication
barriers." Id. § 12101(a)(5). The ADA was
crafted "to advance equal-citizenship stature for
persons with disabilities," Tennessee v. Lane,
541 U.S. 509, 536 (2004) (Ginsburg, J., concurring), and to
remedy their status as "a discrete and insular minority
who have been faced with restrictions and limitations,
subjected to a history of purposeful unequal treatment, and
relegated to a position of political powerlessness in our
society," id. at 516 (majority opinion)
(quoting 42 U.S.C. § 12101(a)(7)).
is organized into three titles prohibiting discrimination
across three major spheres of public life: employment (Title
I); public services, programs, and activities (Title II); and
public accommodations (Title III). This case arises from the
protections of Title II. The primary mandate of Title II is 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. This broad directive has been developed further by the
Department of Justice through implementing regulations,
accessibility standards, and administrative guidance. See
id. § 12134(a) (instructing Attorney General to
promulgate regulations implementing pertinent part of Title
prove a prima facie case of discrimination under
Title II, a plaintiff must show: (1) "that he is a
'qualified individual with a disability'"; (2)
"that he was denied 'the benefits of the services,
programs, or activities of a public entity' or otherwise
subjected to discrimination by such an entity"; and (3)
"that the denial or discrimination was 'by reason
of' his disability." Love v. Westville Corr.
Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (quoting 42
U.S.C. § 12132). It is well established that a failure
to make "reasonable modifications in policies,
practices, or procedures" can constitute discrimination
under Title II. 28 C.F.R. §
35.130(b)(7)(i); see also A.H. by Holzmueller
v. Ill. High Sch. Ass'n, 881 F.3d 587, 592-93
(7th Cir. 2018); Wis. Cmty. Servs., Inc. v. City of
Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006).
obligation to make "reasonable modifications"
parallels the obligations to make "reasonable
accommodations" in the context of Titles I and III.
See A.H., 881 F.3d at 592 (recognizing corresponding
language in Title II regulations and Title III). These
requirements derive from the understanding that certain
practices can discriminate against individuals with
disabilities even when those practices are facially neutral
and consistently applied. See Lane, 541 U.S. at 536
(Ginsburg, J., concurring) ("Congress understood in
shaping the ADA [that addressing discrimination] would
sometimes require not blindfolded equality, but
responsiveness to difference; not indifference, but
the most obvious example of such discrimination is when
structural barriers prevent people with disabilities from
accessing otherwise available public services. To remedy this
form of discrimination, the DOJ has adopted structural
accessibility standards that apply to newly constructed or
altered facilities subject to Titles II and III. See
28 C.F.R. § 35.151(c). Of course, structural renovations
can be prohibitively costly for some public entities, so the
regulations provide flexible compliance options for
facilities built before 1992 and unaltered since: compliance
can be achieved "through such means as redesign or
acquisition of equipment, reassignment of services to
accessible buildings, assignment of aides to beneficiaries,
… alteration of existing facilities … or any
other methods that result in making its services, programs,
or activities readily accessible to and usable by individuals
with disabilities." Id. § 35.150(b)(1).
"And in no event is the entity required to undertake
measures that would impose an undue financial or
administrative burden, threaten historic preservation
interests, or effect a fundamental alteration in the nature
of the service." Lane, 541 U.S. at 532 (citing
28 C.F.R. §§ 35.150(a)(2), (a)(3)).
public entities offer services at inaccessible facilities
built before 1992, it is clear that they can comply with
Title II by making reasonable modifications to their
policies, practices, or procedures. It is often less clear,
however, whether a given modification is reasonable. This
distinction has generated a significant amount of litigation,
to which we add one more case today.
case centers on the facilities of six courthouses in Cook
County, Illinois. The plaintiffs are five wheelchair-using
detainees: Johnathan Lacy, Kenneth Farris, Marque Bowers,
Maurice Boston, and Kevin Dawson. They each attended court
approximately once per month in connection with their
individual criminal cases. Their court appearances took place
at the Leighton Criminal Courthouse in Chicago or at one of
five suburban courthouses in Maywood, Markham, Skokie,
Rolling Meadows, and Bridgeview. All of these courthouses
were built before 1992 and thus are not subject to the
ADA's structural accessibility standards. See
Lane, 541 U.S. at 532; 28 C.F.R. § 35.150(b)(1).
Nonetheless, to the extent that the facilities prevent
individuals with disabilities from meaningfully accessing
public services, reasonable modifications are required. 42
U.S.C. §§ 35.130(b)(7)(i), 35.150(a).
plaintiffs contend that Cook County and Thomas J. Dart, the
Sheriff, failed to provide reasonable modifications with
respect to two structural barriers at the courthouses: ramps
and bathroom facilities. In order to access the courthouses for
their monthly appearances, the plaintiffs had to traverse
steep entrance and exit ramps in their wheelchairs. Once
inside, they waited in holding cells until their cases were
called, which could take several hours. The holding cells
contained bathroom facilities-typically a combination sink
and toilet, set off by a translucent "privacy
the relevant time period, the ramps and bathroom facilities
did not comply with the latest accessibility
standards. None of the parties disputes that the
ramps did not meet the relevant sloping requirements and that
the bathroom facilities did not include grab bars or
sufficient clear-floor space under the 2010 standards.
Rather, the parties dispute whether the defendants'
policies and practices provided reasonable modifications to
overcome these physical barriers.
defendants maintain that they have complied with the ADA by
enacting a policy of assisting wheelchair-using detainees
with the ramps and by providing portable commode chairs in at
least one holding cell per courthouse. They also submit that
courthouse personnel were instructed to escort
wheelchair-using detainees to public, ADA-compliant restrooms
in the event of an emergency. According to the plaintiffs,
however, they were not consistently assisted and often had to
maneuver the ramps alone. They also insist that they could
not use the commode chairs, or could do so only with great
difficulty, and that they were not escorted to public,
ADA-compliant restrooms as an alternative.
plaintiffs filed this action in August 2014. They sought
prospective injunctive relief as well as damages for past
violations. At the start of the proceedings, the plaintiffs
sought a preliminary injunction to prohibit the defendants
from violating the ADA. Shortly thereafter, they sought
certification of a class of all wheelchair-bound detainees
presently confined at the Cook County Jail. As the parties
were preparing for a hearing on preliminary injunctive
relief, the plaintiffs moved to consolidate the hearing with
a trial on their request for a permanent injunction under
Federal Rule of Civil Procedure 65(a)(2). The court denied
consolidation and began the hearing on December 17, 2014. The
next day, however, it reversed its interlocutory decision and
consolidated the hearing with a trial on the merits for
purposes of injunctive relief.
evidentiary hearing lasted seven days over a span of two full
months. The plaintiffs presented testimony from ADA experts
and a number of wheelchair-using detainees, including Mr.
Dawson and Mr. Farris, who testified to the barriers they
faced when attending court. The hearing also featured
testimony from court service officers and Sheriff's
personnel, including the ADA compliance coordinator and ADA
project director, who testified to the ongoing renovation of
the County courthouses. The parties also submitted video
footage showing wheelchair-using detainees traversing the
ramps and using the holding cell bathrooms with disputed
degrees of difficulty. Throughout the proceedings, the
parties fiercely contested whether the Sheriff enforced the
ramp-assistance policy and whether the portable commode
chairs adequately accommodated the plaintiffs. Notably,
although the district court had ordered the consolidation of
the preliminary injunction hearing with a trial on the
merits, it referred throughout the proceedings to a
the close of the hearing but before it issued a decision, the
court granted the plaintiffs' pending motion for class
certification and certified the class of "[a]ll Cook
County Jail detainees who have been assigned and currently
use a wheel-chair." The plaintiffs immediately filed a
motion on behalf of the class seeking a permanent injunction
with respect to the ramp-assistance policy. The court denied
this motion as premature; although the hearing had ended, the
court still was reviewing evidence and conducting status
hearings about the defendants' ongoing courthouse
10, 2015, the court again reversed its earlier ruling and
stated that it would "not combine its consideration of
the motion for [a] preliminary injunction with [a] ruling on
the final merits of the case." Nevertheless, in their final
memorandum in support of injunctive relief, the plaintiffs
urged the court to enter a final declaratory judgment as well
as a permanent injunction requiring the Sheriff to revise the
ramp-assistance policy to ensure its consistent enforcement.
the court issued a decision on injunctive relief, it
collected summary judgment briefs from both sides on the
plaintiffs' individual damage claims. The named
plaintiffs filed a motion seeking partial summary judgment on
the question of ADA liability, and the defendants filed a
cross motion for complete summary judgment. Both sides
submitted Local Rule 56.1 statements of material fact and
responded in opposition to the other's summary judgment
October 8, 2015, before ruling on summary judgment, the court
issued an opinion on injunctive relief. After acknowledging
its most recent decision to rule on only the request for a
preliminary injunction, the court changed course yet
again. It explained that "in light of plaintiffs'
most recent request for a permanent injunction, and the fact
that the evidentiary record has continued to grow since this
issue was last addressed, preliminary injunctive relief is no
longer before the court." Accordingly, the opinion
addressed the merits of the plaintiffs' claims.
court's opinion contained extensive findings of fact and
conclusions of law. Based on "what it [found] to be most
relevant" in the record, the court found that the
defendants had not consistently helped wheelchair-using
detainees maneuver the ramps. It also found that the
plaintiffs' "witnesses consistently and credibly
[had] testified to being unable to use the toilet facilities
or being able to do so only with great difficulty, even when
provided with a commode chair." The court further found
that commode chairs were not provided, and the alternative
policy of escorting detainees to public restrooms was not
implemented, until mid-2014- after the plaintiffs' claims
arose. Therefore, the court concluded that the
"defendants have, in the past, violated plaintiffs'
rights pursuant to the ADA."
on these findings, the court granted the plaintiffs'
request for a permanent injunction with respect to the
ramp-assistance policy, but it denied their request for a
declaratory judgment. "Although the court has found
past ADA violations," it explained, "the
defendants have undertaken extensive construction, beyond
what is required of them by the ADA or the Rehab Act, that
has remedied the majority of the violations about which
November 19, 2015, the court granted partial summary judgment
to the plaintiffs on the question of liability in their
individual damage actions. The court acknowledged that
"[o]rdinarily, the following facts would be undisputed
and come from the parties' Local Rule 56.1 statements and
responses." However, because the court already had
made factual findings in granting the injunction, it
described the Rule 56.1 statements as largely
"moot" and relied on its existing findings insofar
as they informed the determination of summary
judgment. As the court explained, the
"plaintiffs have already established that they were
discriminated against in violation of the
ADA." Therefore, the only remaining element
for them to prove in order to collect damages was the
intentional nature of the defendants'
discrimination. See Bd. of Educ. of Twp. High Sch. Dist.
No. 211 v. Ross, 486 F.3d 267, 278 (7th Cir. 2007)
(rejecting ADA claim for damages where district court
properly found no intentional discrimination); Love,
103 F.3d at 561 (acknowledging standard of intentional
discrimination for compensatory damages under the RHA and
implicitly applying same standard to ADA claim).
district court recognized that we have not yet spoken on the
proper standard for establishing intentional discrimination.
See Strominger v. Brock, 592 Fed.Appx. 508, 511-12
(7th Cir. 2014) (acknowledging our silence on the matter).
Absent guidance from our court, the district court adopted
the deliberate indifference standard advocated by the parties
and employed by a majority of other courts of
appeals. This standard requires proof of (1)
"knowledge that a harm to a federally protected right is
substantially likely" and (2) "a failure to act
upon that likelihood." S.H. ex rel. Durrell v. Lower
Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013)
(quoting Duvall v. Cty. of Kitsap, 260 F.3d 1124,
1139 (9th Cir. 2001)).
court held that there was "no genuine issue of material
fact as to defendants' knowledge of likely ADA violations
and their failure to act in light of that
knowledge." The court observed that the County
previously had undertaken significant ADA-related
construction at the courthouses but had limited its
renovations to the public-facing portions of the buildings.
It also noted the defendants' involvement in past
litigation involving very similar claims under the ADA. Based
on this circumstantial evidence of the defendants'
knowledge, the court did not think that a reasonable trier of
fact could rule in the defendants' favor on the issue of
granting the plaintiffs' motion for partial summary
judgment on liability, the court proceeded with jury trials
to determine the amount of damages owed to each named
plaintiff. A jury awarded Mr. Lacy $600 in damages and Mr.
Boston and Mr. Bowers $0 in damages. Mr. Dawson and the
defendants reached a private settlement. Mr. Farris and the
defendants agreed to a judgment in Mr. Farris's favor for
January 7, 2016, the plaintiff class filed a motion for a
supplemental permanent injunction to remedy the County's
alleged failure to bring two holding cells at the Maywood
courthouse into compliance with the ADA's
clear-floor-space requirements. According to the plaintiffs,
the County had made alterations to these holding cells,
thereby triggering its obligation to bring the facilities
into complete compliance with the latest accessibility
standards. But, under the pertinent standards, the privacy
screens in the holding cells were 1.5 inches too close to the
rear walls. The County maintained that it was excused from
strict compliance with the accessibility standards because it
altered only certain elements within the holding cells and
because moving the screens was technically infeasible. The
court rejected the County's arguments and granted a
permanent injunction ordering that the screens be moved, but
it stayed its order pending this appeal.
defendants now challenge four of the district court's
orders: (1) the grant of partial summary judgment on
liability in favor of the individual plaintiffs, (2) the jury
verdict and $600 damage award in favor of Mr. Lacy, (3) the
certification of the class, and (4) the grant of a permanent
injunction regarding the Maywood privacy screens. For the
reasons laid out below, we vacate the district court's
grant of partial summary judgment; vacate the jury's
verdicts on damages; vacate the district court's
injunction respecting the Sheriff's ramp policy; affirm
the certification of the class; and affirm the class-wide
injunction regarding the privacy screens. We address these
issues in turn.
defendants contend that the district court erred in granting
summary judgment to the plaintiffs on the issue of ADA
liability in their individual damage actions. They submit
that, by relying on findings of fact from its prior decision
to grant a permanent injunction, the court improperly weighed
competing evidence and made credibility determinations and
thereby usurped the role of the jury in the plaintiffs'
damage claims. We agree.
action, the plaintiffs sought both equitable and legal relief
to remedy the defendants' alleged ADA violations. They
pursued the equitable claims on behalf of the class, seeking
a prospective injunction against ongoing ADA violations.
Simultaneously, the named plaintiffs brought damage actions
on an individual basis, seeking monetary compensation for
past ADA deprivations that they each claim to have suffered.
These equitable and legal claims all required the factfinder
to determine whether the defendants had violated the ADA by
failing to provide reasonable modifications for
wheelchair-using detainees with respect to the courthouse
ramps and bathroom facilities.
well established that "when a legal claim is joined with
an equitable claim, 'the right to jury trial on the legal
claim, including all issues common to both claims, remains
intact.'" Hussein v. Oshkosh Motor Truck
Co., 816 F.2d 348, 354 (7th Cir. 1987) (quoting
Curtis v. Loether, 415 U.S. 189, 196 n.11
(1974)). In order to protect parties' jury
trial rights in these situations, courts typically submit the
legal claims to a jury before the court decides the equitable
claims. See New West, L.P. v. City of Joliet, 891
F.3d 271, 273 (7th Cir. 2018) ("Judges usually ought to
put jurytrial issues ahead of benchtrial issues because that
order is most respectful of constitutional interests …
."). Otherwise, the court might limit the parties'
opportunity to try to a jury every issue underlying the legal
claims by affording preclusive effect to its own findings of
fact on questions that are common to both the legal and
equitable claims. See Beacon Theatres, Inc. v.
Westover, 359 U.S. 500, 504 (1959). Although this order
of proceedings is not constitutionally mandated, see New
West, 891 F.3d at 273, the Supreme Court has instructed
that "only under the most imperative circumstances
… ca n the right to a jury trial of legal issues be
lost through prior determination of equitable claims,"
Beacon, 359 U.S. at 510-11.
case, the order of proceedings was complicated further by the
plaintiffs' request to consolidate the hearing on
preliminary injunctive relief with a trial on the merits for
permanent injunctive relief. Consolidation is procedurally
significant, because in granting or denying a
preliminary injunction, the court would decide only
the plaintiffs' likelihood of success on the
merits, whereas in granting or denying a
permanent injunction, it would decide their
actual success on the merits. See Michigan v.
U.S. Army Corps of Eng'rs, 667 F.3d 765, 782 (7th
Cir. 2011). In other words, only a hearing on
permanent injunctive relief would result in
conclusive findings as to the defendants' actual
liability under the ADA; any judicial ...