Maria C. Childress, An Individual, on behalf of Herself v. Fox Associates, LLC, doing business as Fabulous Fox Theatre

United States Court of Appeals
For the Eighth Circuit
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No. 18-2352
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Maria C. Childress, An Individual, on behalf of Herself and Others Similarly
Situated, also known as Tina Childress; Association of Late Deafened Adults,
(ALDA), an Illinois Corporation
lllllllllllllllllllllPlaintiffs - Appellees
Mary Stodden, An Individual, on behalf of Herself and Others Similarly Situated
lllllllllllllllllllllPetitioner - Appellee
Hearing Loss Association of America, Greater St. Louis Chapter, (HLAA-StL), an
unincorporated affiliate of the Hearing Loss of America, A Maryland Corporation
lllllllllllllllllllllPlaintiff - Appellee
v.
Fox Associates, LLC, doing business as Fabulous Fox Theatre
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 18-2577
___________________________
Maria C. Childress, An Individual, on behalf of Herself and Others Similarly
Situated, also known as Tina Childress; Association of Late Deafened Adults,
(ALDA), an Illinois Corporation
lllllllllllllllllllllPlaintiffs - Appellees

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Mary Stodden, Individual, on behalf of Herself and Others Similarly Situated
lllllllllllllllllllllPetitioner - Appellee
Hearing Loss Association of America, Greater St. Louis Chapter, (HLAA-StL), an
unincorporated affiliate of the Hearing Loss of America, A Maryland Corporation
lllllllllllllllllllllPlaintiff - Appellee
v.
Fox Associates, LLC, doing business as Fabulous Fox Theatre
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 17, 2019
Filed: August 7, 2019
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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
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SHEPHERD, Circuit Judge.
Fox Associates, LLC, doing business as the Fabulous Fox Theater, appeals the
district court’s1 adverse grant of summary judgment and award of attorney’s fees,
expenses, and costs on an Americans with Disabilities Act claim brought by Maria
1The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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Childress and Mary Stodden, two individuals with hearing impairments, as well as
two organizations that serve individuals with hearing impairments. Having
jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Fox Associates runs the Fabulous Fox Theater (the Fox), a 4,500-seat live
theater in St. Louis, Missouri. The Fox does not develop or produce its own shows;
rather, it provides a venue for traveling Broadway shows to perform. These traveling
shows do not rehearse at the Fox for any length of time before performing. They
simply arrive at the venue, set up their sets and equipment pursuant to their needs,
and conduct multiple performances of the same production.
In April 2016, Maria Childress, a late-deafened adult, contacted the Fox and
requested captioning for a performance of the musical Rent, scheduled for May 2017.
Childress, while fluent in American Sign Language (ASL), prefers captioned shows
to ASL-interpreted shows so that she can experience the writers’ original dialogue
and lyrics rather than an ASL interpreter’s version. The Fox told Childress that it did
not offer captioning and had no plans to do so in the future, but that Childress was
welcome to attend a scheduled ASL-interpreted performance of the show.
Childress and the Association of Late-Deafened Adults (ALDA) filed suit
against Fox Associates under Title III of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12182, in June 2016.2 She sought injunctive and declaratory relief,
including mandated captions at all performances for which the Fox received a
captioning request two weeks in advance, publicity that captions were available along
with a way to request them, and sale of tickets to deaf and hard-of-hearing patrons by
2Plaintiffs Mary Stodden and the Hearing Loss Association of America
(HLAA) joined the lawsuit in July 2017.
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non-telephonic means. After Childress sued, the Fox offered to amend its policies
and to offer a single prescheduled captioned performance of each Broadway
production as long as a theater patron requested captions for a performance of that
production two weeks in advance. To that end, the Fox provided a single scheduled
captioned performance—a Saturday matinee—for each of six separate productions
from May 2017 to January 2018. The Fox also began publicizing the availability of
these performances and provided a means to request captioning and purchase tickets
through its website.
Childress was unable to attend the prescheduled captioned performance of
School of Rock in January 2018, so the Fox provided a second captioned performance
a week earlier. It notified Childress, however, that this second captioned performance
was an exception to its policy and that future requests for additional captioned
performances would not always be granted.3 When Michele Westmaas, a season
ticketholder and member of ALDA, requested that the Fox provide captioning at the
remaining 2018 performance for which she had tickets, the Fox instead exchanged
her tickets for tickets to the prescheduled captioned performance.
While Childress’s initial request asked the Fox to provide open captioning, the
Fox chose to provide closed captioning.4 It therefore purchased six electronic tablets
that allow theater patrons to view captions during a performance. The tablets can be
used from any seat in the theater. The Fox also offers device holders for these tablets
so that patrons can view captions hands-free, but these holders can only be affixed to
3This hedging by the Fox blunts the force of the dissent’s contention that, since
the original compromise was reached, the Fox has not denied the plaintiffs captioning
at any requested performance.
4Closed captioning is generally provided on handheld devices and is visible
only to the patron who requests the captioning, while open captioning is projected on
a surface that is visible to an entire theater or section of the theater.
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wheelchair-accessible seating due to fire hazards. Captions are generated and appear
in real time so as to exactly duplicate what occurs onstage, including dialogue, song
lyrics, and sound effects. Because every live performance is slightly different, a live,
in-person court reporter must be present to transcribe captions for each performance.
Following the Fox’s implementation of its single-captioned-performance
policy, both parties moved for summary judgment. The plaintiffs argued that,
because the ADA requires equal service, the Fox was required to offer captioning
when requested, subject only to the ADA’s “undue burden” affirmative defense.
Because Fox Associates refused to provide financial information during discovery,
stating that such information was irrelevant, and because the undue burden defense
requires consideration of a defendant’s financial state, the plaintiffs contended that
Fox Associates had waived the defense. Fox Associates argued that requiring
captioning whenever it was requested was not a reasonable modification to the Fox’s
policies, practices, and procedures and that, because it provided captioning whenever
the plaintiffs requested it, their claim for injunctive relief was moot. It further argued
that it was not yet raising an undue burden argument and that this fact, alone,
prevented a grant of summary judgment against it.
The district court found that the plaintiffs brought suit under the ADA’s
auxiliary aids and services requirements, see 42 U.S.C. § 12182(b)(2)(A)(iii), rather
than the less-specific section addressing modification to “policies, practices, and
procedures,” see 42 U.S.C. § 12182(b)(2)(A)(ii). It further found that failing to offer
captioning at any performance where captions were requested “results in deaf persons
being excluded, denied services, or otherwise treated differently than other
individuals merely because of the absence of [an auxiliary] aid. This failure violates
42 U.S.C. § 12182(b)(2)(A)(iii).” Childress v. Fox Assocs., LLC, No. 4:16 CV 931
CDP, 2018 WL 1858157, at *4 (E.D. Mo. Apr. 18, 2018). Fox Associates presented
no argument regarding the undue burden defense and the district court granted
summary judgment for the plaintiffs. It awarded them injunctive relief and, as
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relevant to this appeal, required the Fox to provide captioning whenever it received
a request two weeks in advance.
Following the grant of summary judgment in their favor, the plaintiffs moved
for an award of attorney’s fees, expenses, and costs under 42 U.S.C. § 12205. The
district court granted the motion and calculated reasonable attorney’s fees based on
the lodestar method. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). It reduced
the requested amount of attorney’s fees, however, based on its findings that the
plaintiffs’ attorney billed for clerical or secretarial work and expended time on
matters irrelevant to the case as filed. The district court therefore granted the
plaintiffs $97,920 in attorney’s fees rather than their requested $100,845.
Fox Associates now appeals, arguing that it provides deaf and hard-of-hearing
individuals with meaningful access to its benefits and it should be allowed flexibility
to consolidate multiple captioning requests into one performance because providing
captions is expensive. Fox Associates further challenges the award of attorney’s fees,
arguing that the district court used an inflated hourly rate to calculate those fees,
allowed the plaintiffs’ counsel to bill for tasks he should not have included, and failed
to reduce the fee award to account for the plaintiffs’ partial success on their summary
judgment motion.
II.
Fox Associates first argues that the district court improperly granted summary
judgment for Appellees and failed to grant Fox Associates’ summary judgment
motion on Appellees’ ADA claim. “We review a district court’s decision on cross-
motions for summary judgment de novo.” Thirty & 141, L.P. v. Lowe’s Home Ctrs.,
Inc., 565 F.3d 443, 445-46 (8th Cir. 2009).
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Under the ADA, a public accommodation5 must provide auxiliary aids and
services to individuals with disabilities if such individuals need those aids and
services to enjoy “meaningful access” to the public accommodation. Argenyi v.
Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013). A person with a disability
receives meaningful access if she receives an “equal opportunity to gain the same
benefit” as a person without her disability. Id. Whether an entity provides
meaningful access is a fact-based inquiry; a public accommodation’s exact
responsibilities under the ADA must be determined on a case-by-case basis. Id.
The exact form of auxiliary aid necessary is left up to the public
accommodation, but, once the public accommodation determines that an aid is
needed, it must provide that aid unless doing so would be an undue burden or would
fundamentally alter the nature of the provided benefit. 42 U.S.C.
§ 12182(b)(2)(A)(iii). Both the undue burden and the fundamental alteration
arguments are affirmative defenses provided by the ADA. Gorman v. Bartch, 152
F.3d 907, 912 (8th Cir. 1998) (citing 28 C.F.R. § 35.150(a)(3)). Failure to raise an
affirmative defense before the district court constitutes waiver of that defense.
Warner Bros. Entm’t, Inc. v. X One X Prods., 840 F.3d 971, 980 (8th Cir. 2016).
On appeal, Fox Associates argues that deaf and hard-of-hearing individuals
receive meaningful access to the Fox’s productions because the Fox currently
captions one performance of each Broadway production and has never denied a
captioning request. Appellees counter that deaf and hard-of-hearing individuals are
guaranteed only one performance date while individuals without hearing impairments
may choose from a broad range of performance dates. This discrepancy, Appellees
argue, indicates that individuals with hearing impairments have less opportunity to
5Fox Associates does not dispute that the Fox is a public accommodation and
is subject to the ADA’s requirements.
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receive the benefits the Fox provides, and that, therefore, the Fox denies them
meaningful access.
The Fox provides its scheduled captioned performance during a Saturday
matinee time slot for each Broadway production. Under the Fox’s current policies,
individuals with hearing impairments must attend that production in order to have
access to captioning and therefore cannot, like their hearing-enabled counterparts,
attend the theater during the week or in the evening. This excludes individuals with
hearing impairments from “the economic and social mainstream of American life[,]”
perpetuating the discrimination the ADA sought to address. McGann v. Cinemark
USA, Inc., 873 F.3d 218, 230 (8th Cir. 2017) (quoting PGA Tour, Inc. v. Martin, 532
U.S. 661, 675 (2001)).
We note, too, that the Fox implemented Childress’s request for a second
captioned performance of School of Rock only after explicitly stating that it did so as
an exception to its policy and that it would not always grant similar requests in the
future.6 We therefore find that the Fox’s one-captioned-performance policy denies
persons with hearing impairments an equal opportunity to gain the same benefit as
persons without hearing impairments, and that deaf and hard-of-hearing individuals
therefore do not have meaningful access to the benefits the Fox provides.
Despite its failure to provide meaningful access to individuals with hearing
impairments, Fox Associates could still prevail if it could show that providing
captioning at all requested performances would be an undue burden.7 However, in
6See Footnote 3.
7Fox Associates could also prevail if it could show implementing this request-
based captioning system would fundamentally alter the nature of the benefit it
provides. However, Fox Associates conceded in the district court that captioning is
not a fundamental alteration, see Def.’s Resps. & Objections 3, Dist. Ct. Dkt. 34-2,
and it presents no argument on this point on appeal.
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response to Appellees’ motion for summary judgment, Fox Associates explicitly
stated that it was “not asserting the affirmative defense[] of ‘undue burden’ . . . .”
Def.’s Mem. Opp’n Pls.’ Mot. Summ. J. 7, Dist. Ct. Dkt. 50. Having failed to do so
in the district court, it cannot do so now. See Warner Bros., 840 F.3d at 980; Modern
Leasing, Inc. of Iowa v. Falcon Mfg. of Cal., Inc., 888 F.2d 59, 62-63 (8th Cir. 1989).
Fox Associates’ conclusion that Appellees were “not entitled to summary
judgment on any non-asserted affirmative defenses[,]” ” Def.’s Mem. Opp’n Pls.’
Mot. Summ. J. 7, and its argument on appeal that the district court erred in failing to
account for a potential undue burden ignore the fact that it was Fox Associates’
responsibility to assert the undue burden defense. A party who does not assert a
defense in the district court cannot assert that defense on appeal, and Fox Associates
has therefore waived that defense.
Finding that the Fox does not provide meaningful access to individuals with
hearing impairments and that Appellees’ claim is not subject to the undue burden
defense, we conclude that the district court properly granted summary judgment in
favor of Appellees on their ADA claim. We note, however, that if the volume of
captioning requests in the future rises to the level of an undue burden on the Fox,
nothing precludes Fox Associates from bringing its own lawsuit and seeking to
modify the district court’s order in this case.
III.
Having determined that the district court properly granted summary judgment
in favor of Appellees, we must now determine whether the district court properly
awarded Appellees over $97,000 in attorney’s fees. “Attorney’s fees are within the
broad discretion of the district court and will not be reversed absent an abuse of
discretion.” Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).
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Federal courts employ the lodestar method, which multiplies the number of
hours worked by the prevailing hourly rate, when calculating reasonable attorney’s
fees. Perdue v. Kenny A. ex rel Winn, 559 U.S. 542, 546 (2010). A district court has
“great latitude to determine a reasonable hourly rate because it is intimately familiar
with its local bar[,]” Banks v. Slay, 875 F.3d 876, 882 (8th Cir. 2017) (internal
quotation marks omitted), and it may rely on reconstructed time entries to calculate
the hours worked if those entries “satisfactorily document [the] time[.]” MacDissi
v. Valmont Indus., Inc., 856 F.2d 1054, 1061 (8th Cir. 1988). A district court should
exclude “hours that were not ‘reasonably expended’” from its calculations, Hensley,
461 U.S. at 434 (quoting S. Rep. No. 94-1011, at 6 (1976)), and may reduce a fee
award if a plaintiff does not obtain all the relief she sought. See id. at 435-36 (finding
that courts can reduce a fee award to account for unsuccessful claims).
Fox Associates argues on appeal that the district court committed three errors
in calculating its award of attorney’s fees. First, Fox Associates argues that it
implemented all the remedies Appellees sought before the district court ruled in their
favor, including offering captioned performances, publicizing those performances and
providing a way to request captioning, providing handheld captioning devices, and
allowing deaf and hard-of-hearing individuals to obtain tickets through non-
telephonic means. Fox Associates contends, therefore, that Appellees’ counsel
should only be compensated up until the date the Fox implemented those remedies.
However, as Appellees correctly point out in their brief, the parties continued to fight
over how many captioned performances the Fox needed to provide, nothing prevented
the Fox from reverting to its previous policies, and ultimately the district court
awarded nearly all the relief Appellees requested in their Amended Complaint.8 “[I]n
8Appellees additionally requested that the Fox be required to solicit and
respond to customer feedback on its captioning. The district court did not grant this
request. However, the Fox does not argue on appeal that the district court erred in
failing to reduce the attorney’s fees award based on Appellees’ failure to obtain this
remedy.
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light of the substantial relief [Appellees] obtained,” see id. at 436, we conclude that
the district court did not abuse its discretion in failing to reduce its award of
attorney’s fees based on partial litigation success.
Second, Fox Associates argues that Appellees’ requested hourly
rate—$450—is unreasonable because it exceeds prevailing market rates and because
Appellees’ counsel does not charge his clients that much. We note first that
Appellees’ counsel does not charge his clients $450 an hour because he does not
charge a set fee at all. Rather, he relies on the jurisdictions in which he practices to
determine a fair market rate. Fox Associates does not address the fact that Appellees’
counsel has over 30 years of practice experience, including 10 years of experience
solely in ADA litigation involving individuals with hearing impairments. Nor does
Fox Associates present any evidence that $450 is above the prevailing market rate for
such an attorney in the St. Louis area. In fact, Fox Associates presents no evidence
as to prevailing market rates in the St. Louis area other than the rates for its own
attorneys. Because a district court is presumed to be familiar with the market rates
in its jurisdiction, see Banks, 875 F.3d at 882, and because Fox Associates has failed
to present evidence that the market rate the district court chose is unreasonable, we
find that the district court did not abuse its discretion in setting an hourly rate of
$450.
Third and finally, Fox Associates argues that the district court should have
reduced its fee award because Appellees’ counsel impermissibly reconstructed time
entries after the fact, billed an excessive number of hours, and impermissibly billed
non-attorney work at the attorney rate. However, reconstructed time entries do not
necessarily require a fee reduction, see MacDissi, 856 F.2d at 1061, and the district
court determined that the reconstructed entries, which dealt only with brief
communications, satisfactorily documented the time. We agree. The district court
conducted a thorough review of the time entries in this case and concluded that 5.7
hours of work were not compensable as either non-attorney work or unreasonably-
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expended hours. Fox Associates provides no evidence that the district court abused
its discretion in failing to exclude more hours; indeed, Fox Associates does not even
indicate how many hours it believes were excessive. Without more, we cannot say
the district court abused its discretion in failing to reduce its fee award further for
inefficiency, and we uphold the district court’s award of attorney’s fees.
IV.
We affirm the district court’s judgment in full.
GRASZ, Circuit Judge, dissenting.
There is an old adage that “bad facts make bad law.” Colbruno v. Kessler, __
F.3d __, 2019 WL 2751434, at *7 (10th Cir. July 2, 2019) (Tymkovich, C.J.,
dissenting). Likewise, a litigation strategy can result in bad law leading to unforeseen
consequences. I fear that may be the case here. For whatever reason, the Fox
addressed only the question of meaningful access and failed to assert an undue burden
defense at the summary judgment stage, even though the Fox says the cost of
providing an in-person captioner at each performance is substantial. This has resulted
in a decision that could undercut the meaningful access precedent of this circuit. See,
e.g., Argenyi v. Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013).
Under the meaningful access standard, “aids and services ‘are not required to
produce the identical result or level of achievement for handicapped and
nonhandicapped persons,’ but they nevertheless ‘must afford handicapped persons
equal opportunity to . . . gain the same benefit.’” Id. at 449 (alteration in original)
(quoting Loye v. Cty. of Dakota, 625 F.3d 494, 499 (8th Cir. 2010)). While the ADA
is broad in scope, the law does not require institutions to provide all requested
auxiliary aids and services but instead only “necessary” ones. Id. The law tests what
level of provision of necessary aids and services is required for meaningful access
without reaching the affirmative defenses. See Loye, 625 F.3d at 499. This is an

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“inherently fact-intensive” inquiry that “largely depends on context.” See Argenyi,
703 F.3d at 449 (quoting Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 343
(11th Cir. 2012)).
Here, the Fox originally provided its hearing-impaired patrons with an
American Sign Language interpreter. And then, after litigation ensued, the Fox
provided Childress with the specific accommodation she asked for, live captioning
at one showing of each requested production. When Childress requested live
captioning at a different showing, the Fox provided captioning at her requested
showing. In fact, since their original compromise was reached, there is no evidence
that any of the plaintiffs have been denied captioning at a requested showing.
Yet the court concludes that, although the Fox provides real time captioning
from a live, in-person court reporter for at least one performance of every production
at its theater and has demonstrated a willingness to work with patrons to
accommodate requests for alternative dates, it must instead provide this service at
every performance of every production in order to provide meaningful access.
Childress expressly argued, and the court seemingly agrees, the Fox has no ability to
limit the frequency of the live captioning services it provides. In my view, this
conclusion effectively replaces the meaningful access test with an identical access
standard. I also believe this conclusion improperly cabins arguments about what
access qualifies as meaningful to the context of affirmative defenses even though the
defenses test whether the auxiliary aid or service must be provided at all, not what
level of access is meaningful. See, e.g., id. at 451 n.3. It is the meaningful access
analysis, not the undue burden standard, that determines whether it is necessary to
provide a court reporter at every performance.
Fortunately for all concerned, advanced technology appears poised to moot this
issue as a practical matter by making real time captioning of live performances
inexpensive and routine. This does not, however, negate the legal problem. A legal
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standard requiring identical access in the context of auxiliary aids and services may
have far-reaching unforeseen consequences in other contexts. Identical access would
possibly require, for example, 24/7 sign language translation in hospitals as well as
a myriad of other requirements. Such a result is not consistent with our meaningful
access precedent. See Loye, 625 F.3d at 499 (affirming district court’s opinion
rejecting the contention that “an interpreter is mandated for every meeting”). The
benefit the Fox offers is the opportunity to attend traveling Broadway productions.
Access to this benefit does not require live court reporters at each and every
performance of every production in order to be meaningful.
I respectfully dissent.
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