Case 6:14-cv-01544-ACC-GJK Document 181 Filed 11/10/15 Page 1 of 24 PageID 3552 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION A.L., by and through D.L., as Next Friend, Parent and Natural Guardian, and D.L., Individually, Plaintiffs, Case No. 6:14-cv-1544-ACC-GJK v. WALT DISNEY PARKS AND RESORTS US, INC. Defendant. ______________________________________/ PLAINTIFF A.L.’S MEMORANDUM OF AUTHORITIES IN SUPPORT OF PLAINTIFF A.L.’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY FOR PARTIAL SUMMARY JUDGMENT Plaintiff A.L. by and through D.L. as Next Friend, Parent and Natural Guardian, through undersigned counsel and pursuant to the Federal Rules of Civil Procedure and the Local Rules of this Court, file this memorandum of authorities in support of Plaintiff A.L.’s Motion for Summary Judgment or Alternatively for Partial Summary Judgment. I. SUMMARY JUDGMENT STANDARD As this Court has stated: Summary judgment is appropriate when the moving party demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant must satisfy this initial burden by “identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Norfolk S. Ry. Co. v. Groves, 586 F.3d 1273, 1277 (11th Cir.2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). In response, “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (citation and quotation marks omitted). 1 Case 6:14-cv-01544-ACC-GJK Document 181 Filed 11/10/15 Page 2 of 24 PageID 3553 Alternatively, the movant is entitled to summary judgment where “the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323. When it conflicts, the court presumes the nonmoving party's evidence to be true and will draw all reasonable inferences in its favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003) (citation omitted). Ultimately, the standard for summary judgment is “whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.” Anderson, 477 U.S. at 252. However, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. at 255. Federal Trade Commission v. HES Merchant Services Co., Inc., 2014 WL 6863506, *4 (M.D. Fla. 2014). II. FACTS AND BACKGROUND A. Disney’s Accommodations of Park Guests Prior to October 9, 2013 For decades, with few exceptions, Disney’s accommodation of disabled persons, particularly persons with developmental disorders such as autism, was the finest in the country. Disney’s policy went by several names over the years, most recently the Disney “Guest Assistance Card” (GAC) in the 1990s and 2000s. During these years, until late 2013, Disney generally accommodated persons with disabilities by allowing them access to Disney’s “Fastpass” lines. Fastpass lines are reserved for guests who make appointments to visit the attractions. The ability to make Fastpass line appointments typically expires early on any given day of a Disney park visit, because the number of appointments is limited and guests consume the available appointment times at the beginning of the day. The Fastpass lines do not permit immediate access to the attractions, because even guests who make appointments must usually wait a few minutes to enter an attraction at the appointment time.1 1 Disney’s disability programs historically provided other limited or ride-specific accommodations, such as access through an alternate entry. Alternate-entry access and other limited or ride-specific accommodations were more common at Disneyland than at Walt Disney World, as many of the California attractions were built long before the Florida attractions. 2 Case 6:14-cv-01544-ACC-GJK Document 181 Filed 11/10/15 Page 3 of 24 PageID 3554 B. Development of Disney’s Disability Access Service In early 2012, as a result of “an ECV [electric wheelchairs] Strategy project which has recently been approved by senior leadership,” Disney empanelled a committee to study Disney’s “access policies and tools for Guests with Disabilities.” Ex.1; 2. After certain news reports surfaced in May of 2013, the publicly-stated reason for studying alternatives to the GAC, and ultimately releasing the new system, was not the proliferation of motorized wheelchairs in the parks but was “abuse” of the GAC by non-disabled persons. Ex.3. In truth, other reasons played into the decision, including: Disney’s fear of GAC-bearing independent tour guides creating difficult competition for Disney’s very lucrative internal tour guides and escorts; Riggs Dep. 25:18-27:24; Disney Corp. Dep. 54-57; Ex.26; Disney’s inability to integrate a disability system into its increasingly electronic crowd management systems, and Disney’s inability to accurately track the quantity of attraction and ride usage flowing from all such uses. Whatever may have been the reason, whether it was “abuse” or something else, the problem . Ex.4.2 From its initial formation, the committee’s focus was on developing a “dance card” system. The idea was that disabled guests would be issued a card to carry through the park, with which they would obtain appointment times to return to the ride. The concept is consistent with Disney’s over-arching theme for all its parks, which is to transition the parks into environments where all experiences occur “by appointment only,” effectively allowing Disney to maximize its management of crowds through manipulation of the traffic patterns of Disney’s guests. Ex.5: “ 2 3 Case 6:14-cv-01544-ACC-GJK Document 181 Filed 11/10/15 Page 4 of 24 PageID 3555 ”; Ex.6: “our future vision of plan your day”; Ex.7: “I would think we would use the same manual process at both sites initially and then see how well my magic plus fulfills the same service level at WDW before deciding to eliminate it at WDW and rely solely on my magic plus.” Disney touted its system as a fair one because it called for a “virtual wait.” Under the Disability Access Service (“DAS”), as the “dance card” system came to be known, guests would be given a time to visit the ride that was approximately equal to the time which would be required if the guest was, at that moment, standing in line. The concept is backward. While ADA calls for equalization of Disney’s “goods, services, facilities, privileges, advantages, or accommodations,” Disney’s wait times are none of these. Disney guests do not visit the parks for the wait time; the wait time is a negative aspect of the experience. Even so, the DAS was launched with a stated goal of “equal wait time for all Guests” and “to address the accessibility issues while not granting preferential wait time. Equal wait time for all Guests.” Ex. 2, 1016077. The concept is akin to a retail store giving equal access to the products in the store but requiring persons with autism to wait as long as non- disabled persons to check out of the store, even if an express checkout lane is available. For many years, Disney had a department devoted to services and accessibility for Disney’s guests with disabilities. Even so, the DAS committee was chaired by personnel in Disney’s industrial engineering department, and not by persons in Disney’s disabilities group. Disney’s suggestion that guests with autism, while waiting perhaps an hour or more to visit an attraction, can go shopping, or snacking, or sightseeing, or just wandering aimlessly, is bizarrely inconsistent with reality. Most persons with autism and similar disorders have a need (not a desire) for routine. They cannot “kill time.” In Plaintiffs’ family, as in most autism families, there is no browsing, or idly passing time awaiting the next experience. D.L. Aff. ¶19. Disney 4 Case 6:14-cv-01544-ACC-GJK Document 181 Filed 11/10/15 Page 5 of 24 PageID 3556 knew this and for more than a year after the DAS committee was formed, Disney’s disabilities personnel expressly voiced their concern that the “dance card” system, while it might work for most disabled persons, would not accommodate, and would uniquely prejudice, one group of disabled persons: persons with cognitive impairments, including autism. Ex.8 (“Compendium of Disney Disability Executives’ Voices Ignored”), at AL1003954, AL1015954, AL1034721. They pointed out to Disney’s statistics-driven engineers that autistic persons, at least excepting those on the highest-functioning end of the autism spectrum, cannot comprehend the concept of time. Their issue is not that they cannot tolerate waiting in lines – it is that they cannot tolerate waiting, beyond a few minutes, the number of tolerable minutes varying from guest to guest, depending upon the nature and severity of the disability. Most persons with autism cannot appreciate that they are offered or given an appointment to experience something later in exchange for waiting now.