Before the

Missouri Commission on Human Rights

State of Missouri

 

 

 

STATE OF MISSOURI ex rel. BARBARA           )

BECHTEL o/b/o ANDREA BECHTEL,                )

                                                                              )

                                    Petitioner,                           )

                                                                              )

            vs.                                                              )                 No. 05-0008 HRC

                                                                              )

CITY OF VALLEY PARK,                                  )

                                                                              )

                                    Respondent.                       )

 

 

RECOMMENDED DECISION

 

            The Administrative Hearing Commission (“Hearing Examiner”) recommends that the Missouri Commission on Human Rights (“the Commission”) order the City of Valley Park (“City”) to pay Andrea Bechtel (“Bechtel”) and Barbara Bechtel (her mother) $8,040 each in damages for failing to make a city park accessible to persons with disabilities. 

Procedure

            On September 29, 2000, Barbara Bechtel filed a complaint with the Commission.  On April 25, 2002, the Commission’s executive director issued the Commission’s finding of probable cause and referred the case for conciliation.  On August 23, 2002, the Commission’s conciliator signed an affidavit stating that efforts at conciliation were unsuccessful.  By order dated November 21, 2005, the Commission approved our appointment as Hearing Examiner to conduct the hearing. 


 

 

 

            On January 6, 2006, the State of Missouri (“the State”) filed an amended complaint at the relation of Bechtel’s mother on Bechtel’s behalf.  We convened a hearing on the amended complaint on October 5, 2006.  Assistant Attorney General Cyrus Dashtaki represented the State.  Michael G. Berry, with the Law Firm of Michael G. Berry Law Offices, LLC, represented the City.  The State filed the last written argument on February 22, 2007. 

Findings of Fact

1.            Bechtel was born on June 30, 1969, but functions mentally at the level of a six-year-old.  Bechtel has cerebral palsy in the ataxia form, and epilepsy with grand mal seizures, which causes her mental retardation and aphasia.  Her seizures are under control through medication, but she requires assistance with the functions of daily living, including eating, dressing, hygiene, and mobility.  Bechtel’s lack of mobility requires a wheelchair and someone to push it.   

2.            Bechtel’s father is deceased.  Bechtel receives assistance with the activities of daily living from her mother, who is her court-appointed guardian and round–the-clock companion.  In April 1999, Bechtel and her mother bought a wheelchair-accessible condominium in Summer Tree Village Condominiums, a complex in the City. 

3.            Behind the complex was forested acreage that the City turned into Vance Trails Nature Park (“Vance Park”).  The City received and appropriated public funds to open, maintain, and operate Vance Park for public use.  Bechtel wanted to visit Vance Park because she enjoys socializing with family and friends, and especially enjoys being with her young cousins while they play. 

4.            In 1998, the City constructed a nature trail (“the trail”) at Vance Park.  On the west side of Vance Park is an entrance and parking lot from which the trail runs across a low-water bridge over Fishpot Creek and onto the east bank (“the landing”).  The City covered the landing with compacted rock and poured asphalt on top.  The asphalt was smooth enough for a

 

 

wheelchair to cross the landing safely.  Part of the trail runs close to the condominium property where Bechtel and her mother lived.

5.            On at least three occasions between 1998 and 2001, flash floods washed out the landing’s compacted rock and asphalt.   

6.            In 2001, the City re-built the landing out of poured concrete.  It did not wash away, but the surface was too steep, rough, lumpy, pitted, and rutted for safe access for persons using a wheelchair or for anyone who has trouble walking.[1]  A smooth layer of asphalt over the landing’s rough concrete surface (“asphalt layer”) would have rendered it accessible by wheelchair. 

7.            In March 2001, Bechtel’s mother requested an accommodation from the City and the condominium owners association to be able to access Vance Park through the condominium property to the trail.  The City attempted to accommodate Bechtel and her mother by clearing and grading an area for an access path from the trail to the condominium property, but the condominium owners association refused to allow access to the trail from the condominium property. 

8.            Beginning about the same time that she requested the accommodation for access to Vance Park from the condominium property, Bechtel’s mother repeatedly asked the City to apply the asphalt layer over the poured concrete so that Bechtel could access the trail.  Bechtel’s mother addressed her inquiries to the city attorney, public works staff, an alderman, and the Mayor by letter, telephone conversation, and comment at public meetings.  The City refused to apply the asphalt layer, citing cost, and ceased all communication with her when she filed a complaint with the Commission. 


 

 

9.            The City also operates Simpson Park.  Simpson Park is eight to ten miles further from Bechtel’s home than Vance Park.  It offers no nature trail and is primarily devoted to team sports and fishing.  Bechtel cannot participate in team sports and cannot fish.  Simpson Park has little shade, which is unhealthy for Bechtel because her medication makes her susceptible to sunburn.  Bechtel’s mother fears for their safety at Simpson Park because of its isolated location and history as the site of criminal activity. 

10.        Before April 2006, Bechtel and her mother twice attempted to access the trail without success.  In autumn 2002, Bechtel’s mother drove Bechtel to the entrance on the west side of Vance Park, which is the far side from the condominium complex, but they could not access the trail across the landing.  In September 2003, while trying to push Bechtel in her wheelchair across the landing, Bechtel’s mother sustained an umbilical hernia because of the landing’s condition.  As a result, Bechtel and her mother had to leave without fully accessing the trail.   

11.        By letter dated March 6, 2006, the Commission recommended to the City that it apply the asphalt layer.  At the suggestion of the City’s engineer, the City did so at a cost of $1,606.  Since April 2006, the landing has been accessible to Bechtel by wheelchair.  On Easter Sunday 2006, Bechtel visited Vance Park with her mother and a cousin.  The cousin pushed Bechtel’s wheelchair and had no problems in doing so. 

Conclusions of Law

            The Missouri Human Rights Act[2] (“Act”) gives the Commission jurisdiction: 

(7) To receive, investigate, initiate, and pass upon complaints alleging discrimination in employment, housing or in places of public accommodations because of . . . disability . . . ;

 

 

 

 

 

(8) To hold hearings, subpoena witnesses, compel their attendance, administer oaths, to take the testimony of any person under oath[.[3]]

 

Our duty is as follows: 

The hearing examiner shall make findings of fact and conclusions of law and shall recommend to the [C]ommission an order granting such relief as provided in subsection 11 of this section . . . in accordance with such findings.[[4]]

 

The findings and conclusions sought in the State’s amended complaint are that the City committed an unlawful discriminatory practice. 

I.  Liability

Unlawful discriminatory practices include generally: 

any act that is unlawful under this chapter [213, RSMo[5]].

 

Such provisions specifically apply to the City:

It shall be an unlawful discriminatory practice:

 

*   *   *

 

      (3) For . . . any political subdivision of this state to discriminate on the basis of . . . disability.[[6]]

 

Specifically, the State cites § 213.065.2:

It is an unlawful discriminatory practice for any person, directly or indirectly, to refuse, withhold from or deny any other person . . . any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation . . . or to segregate or discriminate against any such person in the use thereof on the grounds of . . . disability.

 

The Act defines disability, discrimination, and place of public accommodation. 


 

 

            A place of public accommodation includes the trail, the landing, and Vance Park:

all places . . . offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation and amusement, including, but not limited to:

 

*   *   *

 

      (e) Any public facility owned, operated, or managed by or on behalf of this state or any agency or subdivision thereof, or any public corporation; and any such facility supported in whole or in part by public funds;

 

      (f) Any establishment which is physically located within the premises of any establishment otherwise covered by this section or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment[.[7]]

 

There is no dispute, and the City admits, that Vance Park, the landing, and the trail are within that definition because the landing and the trail are within Vance Park; and Vance Park is a public facility owned, operated, and managed by the City. 

            The Act defines disability as:

a physical or mental impairment which substantially limits one or more of a person's major life activities[.[8]]

 

The Commission’s regulations and Missouri case law do not define major life activities for public accommodation purposes.[9]  In such circumstances, the Commission may look to case law discussing the federal Americans with Disabilities Act:[10] 


 

 

 

Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. [[11]]

 

There is no dispute, and the City agrees, that Bechtel cannot walk or even propel herself in her wheelchair.  She is disabled. 

Discrimination is also defined by statute as:

any unfair treatment based on . . . disability[.[12]]

 

The State argues that the City’s refusal to pave the landing with asphalt is unfair according to the following statutory standard:

All persons within the jurisdiction of the state of Missouri are free and equal and shall be entitled to the full and equal use and enjoyment within this state of any place of public accommodation, as hereinafter defined, without discrimination or segregation on the grounds of . . . disability.[[13]]

 

There is no dispute, and the City admits, that Bechtel did not have full and equal use and enjoyment of Vance Park from 2001 through 2006 because of her disability. 

The State charges discrimination in the form of failure to make reasonable accommodation.[14]  To show that denying Bechtel access to Vance Park constituted unlawful discrimination based on her disability, the State must show that the landing constituted a barrier and that removal of such barrier was readily achievable.[15]  The City does not dispute that the landing was a barrier.  The City also does not dispute that removing the barrier was readily achievable with a single pour of asphalt for $1,608.  A "readily achievable" change is one that can be accomplished "without much difficulty or expense."[16] 


 

 

II.  The City’s Defenses

Once the State has shown that the City’s public accommodation had a barrier of which removal was readily achievable, the City must rebut that case to avoid liability.  Although the plaintiff bears the initial burden of demonstrating that a suggested method of barrier removal is readily achievable, the defendant bears the ultimate burden of persuasion on the issue at trial.[17]

The City argues that it had no intent to discriminate against Bechtel.  As support, the City cites its attempt to build an access path from the trail to the condominium property.  But a specific intent to injure Bechtel, her mother, or any other person who had trouble walking, is not an element of the State’s claim.  The standard for liability in a case of failure to make reasonable accommodation in a place of public accommodation is “deliberate indifference.”  Deliberate indifference means “knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood."[18] 

The City cites Ortega v. Bibb County,[19] in which the plaintiff failed to establish deliberate indifference because it did not show that “someone with authority to take corrective action, i.e. a supervisor, had”[20] “notice of the discriminatory conduct and an opportunity to take corrective action.” [21]  The City also cites Ferguson v. Phoenix,[22] in which a city failed to make 911 service accessible to persons with impaired hearing.  The court held that the plaintiffs had failed to show deliberate indifference because the city’s problems with installing the 911 system also affected non-disabled persons, so there was no discrimination, and the defendant was actively trying to upgrade the system when the suit was filed.[23] 


 

 

This case differs from Ferguson and Ortega because the City’s failure to comply affected only persons with impaired mobility, the City knew about the issue at the highest levels through its mayor and board of aldermen, and the City refused to apply a reasonable remedy until the Commission investigated.  It is true that the City attempted a reasonable accommodation, the access path to the condominium property, and could not accomplish that accommodation because of resistance from the condominium owners association.  But that does not negate the City’s rejection of another reasonable accommodation that was wholly within its control, the asphalt layer. 

The City also argues that it did not apply the asphalt layer to the landing because it could not know whether it would last, since the previous asphalt landing washed away three times, but the record belies that argument.  The City was then pouring asphalt over compacted rock, not concrete.  The difference in foundation suggests a difference worth considering, even to a non-engineer.  Further, the City found no obstacle when the suggestion of the asphalt layer came from the City’s engineer instead of Bechtel’s mother.  The City offered no valid reason why it refused for five years to apply the asphalt layer over the landing so that the trail could be accessible to persons with impaired mobility.   

The City further argues that Simpson Park was available to Bechtel.  Simpson Park is not in any way comparable to Vance Park.  Simpson Park takes longer for Bechtel to reach, so she would have less time to spend there.  It is designed primarily for team sports and other activities in which Bechtel cannot participate.  It lacks the shade that Bechtel needs to protect her from sunburn due to her medication.  Even more significantly, Bechtel’s mother has reason for them to feel unsafe at Simpson Park because of its remote location and history of crime.  Vance Park is close to Bechtel’s home, is shaded, and has a nature trail that Bechtel can enjoy.  Simpson Park is not an equivalent public accommodation. 

 

 

            Finally, the City argues that it could have avoided liability by building no park at all.  That is no defense to its obligations when it chooses to spend taxpayer dollars on a city park.  We recommend that the Commission conclude that the City unlawfully discriminated against Bechtel. 

III.  Remedies

The State asks for remedies in several forms. 

a.  Cease and Desist Order

In its amended complaint, the State asks for an order that the City cease and desist any discriminatory practices.  The Act requires that, if the Commission finds:

[t]hat a respondent has engaged in an unlawful discriminatory practice as defined in this chapter, the [C]ommission shall issue and cause to be served on the respondent an order requiring the respondent to cease and desist from the unlawful discriminatory practice.  The order shall require the respondent to take such affirmative action, as . . . will implement the purposes of this chapter, including, but not limited to, . . . the extension of full, equal and unsegregated public accommodations[.[24]]

 

Therefore, we recommend that the Commission order the City to:

·        cease and desist from discriminating against and segregating disabled persons at its places of public accommodation; and

·        extend full, equal and unsegregated access to disabled persons at its places of public accommodation.  

The City argues that such prayer for relief is moot because Vance Park is already accessible.  Nevertheless, we read the Act’s provisions broadly to effect its remedial purpose.[25]  Given the


 

 

record on the City’s reluctance to comply with the Act, we recommend that the Commission issue such an order. 

b.  Compliance Report

The State also asks for an order requiring the City to report its compliance with the Act.  The Act requires that, if the Commission finds unlawful discrimination, it may order “the submission of a report of the manner of compliance”[26] in its cease and desist order.  We recommend that the Commission include that requirement. 

c.  Money Damages

Also in the amended complaint, the State asks the Commission to award damages to “Complainant,” which term it uses to describe both Bechtel and Bechtel’s mother.[27] 

The Act allows damages for Bechtel:

The order shall require the respondent to take such affirmative action, as . . . will implement the purposes of this chapter, including, but not limited to, . . . payment of actual damages[.[28]]

 

Bechtel’s mother is eligible for an award under the Act as follows:

It shall be an unlawful discriminatory practice:

 

*   *   *

 

      (4) To discriminate in any manner against any other person because of such person’s association with any person protected by this chapter.[[29]]

 

The courts have held that the Act’s protections extend to persons associated with a disabled person who suffers unlawful discrimination:

The plain meaning of the words of . . . § 213.065 indicate that the general purpose of the act is to prevent anyone in the state of

 

 

 

 

Missouri from being refused public accommodations because of discriminatory attitudes toward persons with disabilities.[[30]]

 

As Bechtel’s companion on trips to Vance Park, Bechtel’s mother is also eligible for an award of damages caused by the City’s discrimination.[31] 

Actual damages in a Missouri civil rights case may include amounts for the deprivation of civil rights, humiliation, and emotional distress.[32]  In closing argument, the State asks for $50,000 in damages for pain, suffering, humiliation, and embarrassment suffered by Bechtel and her mother.  It offers no connection between that amount and the record. 

Injuries caused by deprivations of civil rights differ from most other tort claims.  They are not part of a claim based upon physical injury.  Damages for humiliation and emotional distress in civil rights cases . . . may be “established by testimony or inferred from the circumstances.”[[33]

 

Bechtel’s mother testified as to her frustration at being unable to fulfill the normal desire of any child to play at a park near her home.  Despite her limited capacities, Bechtel also testified persuasively through her words and demeanor that she wanted to use Vance Park.  She also understood why she could not do so, both before and after her mother’s injury. 

The City also argues that Bechtel and her mother tried to access the trail only three times, but the reasons for that are plain.  Before the asphalt layer, the landing was inaccessible to a wheelchair, and her mother suffered an injury trying to push Bechtel’s wheelchair across the landing.  Bechtel and her mother should not be required “to engage in the futile gesture of visiting [public accommodations] that they know to be inaccessible.”[34] 


 

 

            Bechtel’s medical conditions deny her many of life’s pleasures.  But the simple pleasure of taking a trail through the woods with family and friends was beyond her reach because of the City’s refusal to pour a small layer of asphalt.  The City offers no credible explanation as to why, for five years, it rebuffed the suggestion of Bechtel’s mother that it satisfy the Act in that manner.  We recommend that the Commission order the City to pay, as damages for discrimination based on disability in violation of the Act from spring 2001 through spring 2006:

·        $8,040 to Bechtel, and

·        $8,040 to her mother.

The $8,040 amount represents the cost of the asphalt layer times the number of years the City refused to pour it ($1,608 x 5).[35]  The Commission should award $8,040 to Bechtel and her mother for a total of $16,080 ($8,040 x 2). 

Summary

            We recommend that the Commission conclude that the City committed an unlawful act of discrimination in a place of public accommodation based on Bechtel’s disability, order the City to cease and desist from discrimination based on disability in places of public accommodation, report to the Commission its manner of compliance with such order, and pay $16,080 total, $8,040 to Bechtel and $8,040 to her mother. 

            The parties may file exceptions by June 8, 2007. 

            SO RECOMMENDED on May 25, 2007.

 

 

                                                                              ________________________________

                                                                              TERRY M. JARRETT

                                                                              Hearing Examiner

 



[1]Also, the City placed a concrete block at the center of the entrance to the bridge, so there was no space to get a wheelchair past it over paved surface.  The City later removed it from that spot. 

[2]Chapter 213, RSMo.

[3]Section 213.030.1.  Statutory references are to RSMo 2000 unless otherwise noted.

[4]Section 213.075.13.

[5]Section 213.010(18).   

[6]Section 213.070. 

[7]Section 213.010(15). 

[8]Section 213.010(4).

                [9]The Commission’s regulations contain a specific definition of “major life activities” in employment discrimination cases, and that definition encompasses only “those life activities which affect employability.”  8 CSR 60-3.060(1)(C).  That definition does not apply in this case, which involves discrimination in a place of public accommodation in violation of § 213.065(2). 

[10]Missouri Comm'n on Human Rights v. Red Dragon Restaurant, 991 S.W.2d 161, 168 (Mo. App., W.D. 1999). 

[11]29 CFR § 1630.2(i)

[12]Section 213.010(5). 

[13]Section 213.065.1.

[14]First Step, 247 F. Supp. 2d at 149. 

[15]D'Lil v. Stardust Vacation Club, 2001 U.S. Dist. LEXIS 23309, 13-14 (D. Cal. 2001).

[16]42 U.S.C. § 12181(9).

[17]D'Lil at 16-17 (D. Cal. 2001).

[18]Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002). 

[19]431 F. Supp.2d 1296 (M.D. Ga. 2006). 

[20]Id. at 1302.

[21]Id.

[22]157 F.3d 668 (9th Cir. 1998).

[23]Id. at 675-76.

[24]Section 213.075.11(1).

[25]Red Dragon Restaurant, 991 S.W.2d at 166-67.

[26]Section 213.075.11(1).

[27]Paragraphs 12 and 13. 

[28]Section 213.075.11(1).

[29]Section 213.070. 

[30]Red Dragon Restaurant, 991 S.W.2d at 167. 

[31]The State does not seek an award for the physical injury – an umbilical hernia – that Bechtel’s mother incurred because of the landing’s condition, so that issue is not before the Commission, and the issues related to such an award under § 536.700 are not within the scope of the Act. 

[32]Conway v. Missouri Comm'n on Human Rights, 7 S.W.3d 571, 575 (Mo. App., E.D. 1999). 

[33]State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo. banc 2006) (citations omitted).

[34]42 U.S.C.S. § 12188(a)(1); D'Lil at 9 n.2.

[35]The State argues that the time of noncompliance was six years, but the violation in 2000 and 2006 occurred in only parts of that year.