KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

3. Grievance Procedure

140. Title 28, Code of Federal Regulations, section 35.107(b), provides that: "A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by this part." 28 C.F.R. § 35.107(b). Kirola argues that the City's complaint process is deficient because it fails to provide for "prompt and equitable" resolution, as specified in § 35.107(b). Dkt. 604, 15:22-16:8.

141. The City argues that there is no private right of action to enforce 28 C.F.R. § 35.107(b). Dkt. 666, 17:27-18:6. Although there is no controlling authority on this specific issue, the Ninth Circuit's reasoning in Lonberg supports that conclusion.²⁷ Lonberg held that there is no private right of action to enforce federal regulations requiring public entities to develop transition plans under 28 C.F.R. § 35.150(d). 571 F.3d at 852. In reaching its decision, the court reasoned that "a public entity may be fully compliant with [Title II of the ADA] without ever having drafted a transition plan, in which case, a lawsuit forcing the public entity to draft such a plan would afford the plaintiff no meaningful remedy." Id. at 851; see also Ability Ctr. of Toledo v. City of Sandusky, 385 F.3d 901, 914 (6th Cir. 2004) (same); Cherry v. City Coll. of San Francisco, No. C 04-4981 WHA, 2005 WL 2620560, *4 (N.D. Cal., Oct. 14, 2005) ("there is no indication that a public entity's failure to develop a transition plan harms disabled individuals, let alone in a way that Title II aims to prevent or redress. Indeed, it is conceivable that a public entity could fully satisfy its obligations to accommodate the disabled while at the same time fail to put forth a suitable transition plan.").

142. The rationale underlying Lonberg applies equally to the question of whether the grievance procedure regulation is subject to private enforcement. Like ADA transition plans, the existence or non-existence of a grievance policy does not, in itself, deny a disabled person access to a city's services. A public entity may be fully compliant with Title II without having drafted a grievance policy, let alone a grievance policy that mandates specific deadlines for reaching a resolution on all complaints. See Lonberg, 571 F.3d at 851; see also Duffy v. Freed, No. 09-2978 (JBS/JS), 2010 WL 3740659, *4 (D.N.J. Sept. 17, 2010), aff'd, 452 F. App'x 200 (3rd Cir. 2011) ("Although Plaintiff asserts that public entities have a legal obligation under the ADA to launch an investigation into any complaint of a violation of Title II, Plaintiff cites no language of the ADA and the Court finds no support for this proposition in the statute. The public entity's obligation is to not discriminate. Such entities make additional efforts to resolve any potential discrimination by implementing proactive internal procedures according to the DOJ regulations, but the adequacy of these procedures is not itself an ADA concern.").

143. Other circuit and district courts have uniformly concluded that no private right of action exists to enforce 35 C.F.R. § 35.107(b). See Duffy, 452 F. App'x 200, 202 ("[T]here is no private right of action to enforce regulations regarding public entities' ADA grievance procedures[.]"); Giustiniani v. Fla. Dep't of Fin. Servs., No. 3:11-cv-792-J-37 MCR, 2012 WL 2127733, *2 (M.D. Fla. June 12, 2012) (holding that 28 C.F.R. § 35.107(b) does not create a private right of action); DeLeon v. City of Alvin Police Dep't, No. H-09-10222010 WL 4942648, *4 n.10 (S.D. Tex. Nov. 30, 2010) (quoting Duffy v. Freed, No. 09-2978 (JBS/JS), 2010 WL 3740659 (D.N.J. Sept. 17, 2010)) ("'The failure of a Title II public entity to adequately implement or abide by internal complaint procedures does not itself state an ADA claim, because the statute does not require these procedures.'"); see also Brennan v. Reg'l Sch. Dist. No. 1 Bd. of Educ., 531 F. Supp. 2d 245, 278 (D. Conn. 2007) (regulation implementing section 504 of the Rehabilitation Act, which required establishment of grievance procedures, was not privately enforceable); Abrahams v. MTA Long Island Bus, 644 F.3d 110, 119-20 (2d Cir. 2011) (regulation requiring creation of mechanism for ongoing public participation in development and assessment of services for disabled individuals not privately enforceable).

144. Attempting to sidestep the issue of whether there is a private right of action to enforce 28 C.F.R. § 35.107(b), Kirola argues that she does "not challenge the City's grievance procedure standing on its own" but rather "challenge[s] the sufficiency of the grievance procedure as a means of providing program access." Dkt. 618, 12:2-3; see also Dkt. 672, 24:28-25:1 (arguing that the City's "access upon request" policy of addressing access barriers is not a lawful method for providing program access). The evidence does not support Kirola's position. While the record establishes that the grievance procedure is an important aspect of the City's efforts to ensure accessibility for disabled persons, it also firmly establishes that the grievance procedure merely supplements the City's proactive efforts to provide accessibility. See, e.g., RT 64:1-17, 1617:2-1618:3, 2863:14-2867:25. In other words, the City endeavors to provide program access through both proactive and reactive measures—i.e., undertaking significant accessibility planning across numerous City departments and proactively seeking input from the disabled community in the course of such planning, while also responding to requests and complaints from the public. The City's efforts therefore do not constitute an "access upon request" approach to accessibility. C.f. Putnam v. Oakland Unified Sch. Dist., 1995 WL 873734, *10 (N.D. Cal. 1995) ("The approach of taking no action to render programs accessible until a student or parent identifies an accessibility problem does not make a program 'readily' accessible."); Huezo, 672 F. Supp. 2d at 1063 ("The District concedes that to receive an accommodation of any kind—including basic services such as accessible furniture and transportation to otherwise inaccessible parts of campus—each disabled student must fill out certain forms prior to the beginning of each semester.").

145. Even if the Court were to find a private right of action exists to challenge the City's grievance procedure's compliance with 28 C.F.R. § 35.107(b), the evidence does not support the conclusion that any violation of this regulation has transpired.

146. MOD oversees the City's grievance procedure for handling public complaints regarding disabled access to its facilities, programs and services. A complaint form is posted on MOD's website. RT 1579:23-1580:12-1581:22; DTX A35 [000105-109]. Upon receipt of a complaint, MOD sends the complaint to the ADA Coordinator for the appropriate department, which, in turn, investigates the matter. Upon review and approval by MOD, the ADA Coordinator and department head respond to the complaint within thirty days. DTX A35 [000105]; RT 1866:19-25. Because each complaint is unique, resolution of the grievance may, in some instances, require more than thirty days to finally resolve. RT 2001:2-7; 2385:14-2386:22; DTX A15.

147. Fraguli is in charge of the grievance procedure. Only 20 percent of the grievances she received related to physical access—the majority of which were curb ramp requests. RT 1868:9-1869:5. Fraguli has never received a complaint from Kirola, O'Neil, Kimbrough, Grant, DeChadenedes or Monasterio. RT 1870:14-1871:9. Nevertheless, the City learned, through other channels, that Kirola submitted a single curb ramp request, and that Monasterio and O'Neil submitted multiple requests. RT 1383:21-1392:16, 568:6-583:22, 1226:23-24, 1128:23-1230:6, 1246:2-1249:16. The trial record shows that upon becoming aware of these requests, the City installed almost all of the requested ramps within one to two years, while the remaining curb ramps were slated for installation within a year of trial. RT 1228:18-1229:6,1384:6-10, 1391:18-1392:16, 2001:8-2002:5, 2419:13-2420:4, 2422:22-2424:5. Moreover, upon reviewing the evidence presented and relevant legal authorities, the Court concurs with Hecker's opinion that the City's grievance procedure is consistent with the requirements and provisions of the ADA regulations. RT 2727:5-19

148. For the reasons stated above, the Court finds that Kirola's challenge to the City's grievance procedure is legally without merit.

^27. While both Armstrong, 275 F.3d at 859, 862, and Pierce, 761 F. Supp. 2d at 953-54, 957, discussed the ADA's grievance procedure requirement, neither court specifically addressed the question of whether there is a private right of action to enforce 28 C.F.R. § 35.107.