U.S. Department of Transportation

1200 New Jersey Avenue, SE.

Washington, D.C. 20590

Reply to: ATTN: ROA-10

Complaint # 2018-0263

August 7, 2018

Ken B. Lerman

Attorney at Law

100 Pearl Street, 4th Floor

Hartford, Connecticut 06103

KBL@KBLpc.com

Dear Mr. Lerman:

This letter is in reference to your complaint filed with the U.S. Department of Transportation (DOT), Federal Railroad Administration (FRA) on June 19, 2018, concerning travel on Connecticut Department of Transportation’s CTrail Service (CTrail).

You alleged that:

• Your client suffers from Crohn’s disease.

• You allege the complaint should be treated as a class complaint on behalf of all individuals with disabilities who need sudden and/or unpredictable restroom access.

• The restrooms on CTrail equipment are locked out to all passengers until such time as one restroom per consist is made accessible.

• Closure of the restrooms prohibit your client(s) from access to the restroom when needed, and thus your client(s) is/are constrained from being able to use the Hartford Line.

Your suggested remedy is:

• Require the restroom retrofits be expedited, with severe financial penalties for failure to timely perform.

• Open all restrooms to the public immediately.

Connecticut DOT leased used equipment for CTrail service. The leased equipment had no accessible restrooms. FRA is requiring that CTrail retrofit at least one restroom per train consist. The restroom retrofits will not be completed until early 2019. FRA received two complaints from disability organizations regarding the non-accessible restrooms. The complaints alleged that it is discriminatory to provide non-accessible restrooms on board while mobility impaired individuals are limited to accessible restrooms provided on the platforms. In response to the complaints, FRA ordered all non-accessible restrooms closed. CTrail intends to place retrofitted cars into service as work is completed.

CTrail confirmed that the non-accessible restrooms are serviced and ready for use.

The FRA conducted a limited literature review of bowel and urinary incontinence, focused on the frequency in the general population.i The articles indicate a range of the population large enough to presume at least one or more members of the proposed class would be on any given train.

Law, Regulation and Policy

Title II of the ADA prohibits public entities, including Amtrak, from discriminating against individuals with disabilities. 42 U.S.C. §§ 12131, 12132. The Rehabilitation Act of 1973 prohibits exclusion of individuals with disabilities, solely because of their disabilities, from participating in any program or activity receiving federal funds. 29 U.S.C. § 794. DOT enforces Title II of the ADA, Section 504 of the Rehabilitation Act, and other civil rights statutes as they pertain to transportation, as well as the DOT ADA regulations at 49 CFR Parts 27, 37 and 38. DOT investigates complaints against recipients of DOT Federal financial assistance. CTrail is a DOT recipient.

In considering whether or not a class exists FRA will follow Federal Rules of Civil Procedure Rule 23’s elements:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

All public entities, including transportation providers, are required to provide reasonable modifications by making changes to policies, practices, and procedures if needed by an individual with a disability to enable him or her to participate in the recipient’s program or activity, unless providing such modifications are an undue financial and administrative burden or constitute a fundamental alteration of the program or activity. See 28 C.F.R. §35.130(b)(7)(i); 49 C.F.R. §27.7(e).

Decision

For purposes of this decision, FRA accepts that your client is a person with a disability. Turning to the class question, the first element is whether the class is so numerous that joinder of all members is impracticable. Based on FRA’s literature review it is clear that the proposed class is sufficiently numerous to render inclusion of all individuals impracticable. The second element is also met because there are questions of law and fact common to the class. Third, the claims of the representative party (your client) is typical of the claims of the proposed class. Finally, the representative party will fairly and adequately protect the interests of the class. Consequently, FRA accepts this as a class complaint.

The situation complained of is the result of CTrail’s non-accessible restrooms and an FRA order requiring all non-accessible restrooms on each consist of CTrail trains be locked out until at least one restroom on a consist is made accessible. I am taking your complaint as a request to require CTrail to reasonably modify this policy and open all restrooms. Reasonable modification is a fundamental tenet of disability nondiscrimination law. See, e.g., Olmstead v. L.C. ex. rel. Zimring, 527 U.S. 581, 603 (citing 28 C.F.R. § 35.130(b)(7)(i)). Public entities are required to "reasonably modify" their programs and activities unless doing so results in a fundamental alteration. Id. The FRA considered your request to open all restrooms but concluded that a balanced approach is more appropriate. The interests of passengers who have mobility impairments who cannot use the existing restrooms must be balanced with those who need access to a restroom because of their disability. An additional consideration is that this is a temporary condition that CTrail is working diligently to correct. The FRA considered a number of alternatives, including providing restroom access only upon request, but concluded it would be most appropriate to modify its order and allow CTrail to keep one non-accessible restroom open for public use.

Consequently, FRA is modifying its order to require one restroom on each consist to be unlocked. The remaining restrooms will remain locked out until one restroom per consist is modified and made compliant with the ADA accessibility regulations. CTrail may select the restroom to make available and the manner used to identify it to passengers. There is no evidence that providing this access places an undue financial or administrative burden on CTrail or constitutes a fundamental alteration of its program.

The FRA declines your suggested alternative remedies and is confident that CTrail is on schedule to accomplish the restroom modifications as planned.

You should be aware no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected under the ADA or Rehabilitation Act. Any individual alleging such harassment or intimidation related to intercity rail transportation may file a complaint with the FRA.

Any complaint to the FRA must be filed within 180 days of the alleged discrimination. You should also note that nothing in this administrative action precludes you from filing this complaint in an appropriate court should you choose to do so.

Sincerely,

Calvin Gibson

Director, Office of Civil Rights