Jankey v. Twentieth Century Fox

The full case caption appears at the end of this opinion. Les Jankey appeals from the district court’ s summary judgment in favor of Twentieth Century Fox Film Corporation (Fox) on his claim of disability discriminationunder the public accommodations provisions of Title III of the Americans with Disabilities Act (the Act), 42 U.S.C. � � 12181-12189. We must decide whetherfacilities that fall within one of the categories of public accommodations specified in the Act are exempt if they are not in fact open to the public. FACTUAL AND PROCEDURAL BACKGROUND The relevant facts are not in dispute. Fox operates a film and production facility (the Lot) in Los Angeles. Daytime access to the Lot is restricted to Fox employeesand their authorized business guests. Fox security personnel posted at the entrance to the Lot maintain a list of authorized visitors, and admit only employees andpersons on the list. Jankey, who is confined to a wheelchair, is disabled within the meaning of the Act. He has frequently visited the Lot for business purposes over the past twentyyears, almost always on a visitor’ s pass. He contends that while there he was unable to access the Commissary, the Studio Store, and an Automatic Teller Machine(ATM) (collectively, the Facilities), all located on the Lot, because they were not equipped to accommodate wheelchairs. Jankey filed a complaint in district court alleging violations of Title III of the Act prohibiting “public accommodations” from discriminating on the basis of a disability.The complaint also alleged various state law violations. The district court granted summary judgment, holding that because the Facilities were not places of publicaccommodation they were not covered by the Act. The court dismissed the remaining state law claims pursuant to 28 U.S.C. � 1367(c). DISCUSSION We review de novo the district court’ s grant of summary judgment. See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999). Because the parties do notdispute the facts, our review is limited to whether the district court correctly applied the relevant substantive law. See Alltell Info. Servs., Inc. v. Federal DepositIns. Corp., 194 F.3d 1036, 1038 (9th Cir. 1999). Section 302 of the Act prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, oraccommodations of any place of public accommodation by any person who . . . operates a place of public accommodation.” 42 U.S.C. � 12182(a). The Act liststwelve categories of private entities that are “public accommodations,” including: (B) a restaurant, bar or other establishment serving food or drink; . . . (E) a . . . clothing store . . . or other sales or rental establishment; (F) a . . . bank . . . or other service establishment . . . . 42 U.S.C. � 12181(7). The district court found that the Facilities — the Commissary, the Studio Store and the ATM — were not places of public accommodation subject to the Act. Onthis appeal, Jankey contends that because the Facilities fall within the descriptive language of the categories specified in � 12181(7)(B), (E) and (F), they are publicaccommodations subject to the Act. With respect to these Facilities, he contends, Fox is therefore subject to Title III because it operates places of publicaccommodation. Jankey’ s argument is premised on the assumption that if a facility falls within a � 12181 category, the Act applies regardless of whether it is open to the public. Thisargument, for which we have found no support, ignores the plain language of � 12187, which states: “The provisions of [Title III] shall not apply to private clubs orestablishments exempted from coverage under Title II of the Civil Rights Act.” 42 U.S.C. � 12187. Title II of the Civil Rights Act, in turn, exempts from coverageany “private club or other establishment not in fact open to the public.” 42 U.S.C. � 2000a(e) (emphasis added); see also Clegg v. Cult Awareness Network, 18F.3d 752, 755 n.3 (1994) (“Only when the facilities are open to the public at large does Title II govern.” ). Given the plain language of � 12187 and � 2000a(e), wereject Jankey’ s contention that Title III applies to a facility described in 42 U.S.C. � 12181(7) regardless of whether it is open to the public. Because Jankey does not dispute that the Facilities are “establishment[s] not in fact open to the public” our analysis needs go no farther. AFFIRMED. :::FOOTNOTES::: FN1 The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.

---

Jankey v. Twentieth Century Fox LES JANKEY, Plaintiff-Appellant, v. TWENTIETH CENTURY FOX FILM CORPORATION, a Delaware corporation, Defendant-Appellee. No. 98-56585 United States Court of Appeals for the Ninth Circuit Appeal From: United States District Court for the Central District of California Before: Stephen Reinhardt and Diarmuid F. O’ Scannlain, Circuit Judges, and William W Schwarzer, [FOOTNOTE 1] Senior District Judge. Counsel for Plaintiff: Thomas E. Frankovich Counsel for Defendant: David H. Raizman and Bryan Cave Filed: May 16, 2000