A. L. v. Walt Disney Parks & Resorts U.S., Inc., 20-12720

50 F.4th 1097

A. L., BY AND THROUGH D.L., as Next Friend, Parent, and Natural Guardian, Plaintiff-Appellant,

D.L., individually, et al., Plaintiffs,

v.WALT DISNEY PARKS AND RESORTS U.S., INC., Defendant-Appellee.

No. 20-12720

United States Court of Appeals, Eleventh Circuit.

Filed: October 4, 2022

Anthony Anderson Benton Dogali, Dogali Law Group, PA, Clearwater, FL, Eugene Feldman, Law Offices of Jake D. Finkel, APC, Los Angeles, CA, Barbara Ursula Uberoi, Tampa, FL, for Plaintiff-Appellant.

Kerry Alan Scanlon, Lauren Hope Evans, Julie McConnell, Jeremy White, McDermott Will & Emery, LLP, Washington, DC, Lisa Haidostian, McDermott Will & Emery, LLP, Chicago, IL, Jon Michael Philipson, Thomas & LoCicero, PL, Tampa, FL, for Defendant-Appellee.

Before William Pryor, Chief Judge, Lagoa, Circuit Judge, and Watkins,^* District Judge.

Lagoa, Circuit Judge:

This case returns to us after we affirmed in part and reversed in part the district court's grant of summary judgment in favor of Walt Disney Parks and Resorts U.S., Inc., on A.L.’s—and other plaintiffs’—claims that Disney violated Title III of the Americans with Disabilities Act of 1990. See A.L. ex rel. D.L. v. Walt Disney Parks & Resorts US, Inc. (A.L. I ), 900 F.3d 1270, 1296, 1300 (11th Cir. 2018). Given the thorough, exhaustive opinion written by the previous panel, we assume the readers’ familiarity with the factual basis underlying this case. A.L.’s case is one of over forty actions filed by plaintiffs with disabilities against Disney in Florida and California federal courts, asserting that Disney failed to accommodate their requested modifications to its disability-accommodation program in violation of 42 U.S.C. § 12182(b)(2)(A)(ii).

Following a bench trial after our remand, the district court entered final judgment in favor of Disney after determining that A.L.’s requested modification to receive either ten "Re-admission Passes" for each person in his party or unlimited access to Disney's expedited "FastPass" lines for its theme park attractions was neither necessary to accommodate A.L.’s disability nor reasonable under the Americans with Disabilities Act of 1990 (the "ADA"). The district court further determined that the requested modification would fundamentally alter Disney's business model. On appeal, A.L. contends that these determinations were clear error and that the district court applied the wrong legal test in its fundamental-alteration inquiry. A.L. also challenges various evidentiary rulings. After thoroughly reviewing the record and with the benefit of oral argument, we discern no clear error in the district court's factual findings, no legal error in its fundamental-alteration analysis, and no abuse of discretion in its evidentiary rulings. We thus affirm the district court's judgment.

I. FACTUAL AND PROCEDURAL HISTORY

A. A.L.

A.L. is an adult male diagnosed with autism. A.L. is in his late twenties, but his developmental age is "five-to-seven years old." A.L. is "extremely limited" in his ability to communicate with other people; he uses one-word utterances to respond to others and does not engage in full, two-way conversations. He cannot prepare his own meals, dress himself, nor care for his own hygiene. While A.L. cannot tell time based on a clock nor understand days of the week, he has some concept of time, e.g., comprehending that "tomorrow" means some time in the future. Thus, A.L. is generally in the care of his mother, D.L., and they both reside in Orange County, Florida, with other family members.

Routine is critical for A.L. D.L. "manipulates the environment in order for [A.L.] to get to a point where he is a participating member of society." A.L. is extraordinarily regimented in his daily schedule. He eats the same foods for every meal, and if offered other food, he will refuse it. A.L. also eats at precisely the same time every day without exception. He is given thirty minutes of cell phone time between 9:30 p.m. and 10:00 p.m., and once the time runs out, he knows it is time to go to sleep. If his routines are disrupted, A.L. becomes anxious and gradually gets louder with audible noises, and if D.L. cannot deescalate A.L.’s anxiety such that he becomes overwhelmed, his behavior leads to "meltdowns," with A.L. becoming non-responsive. Additionally, A.L. has gone on many family vacations, including twenty-one cruises and car rides as long as seven hours (with breaks).

A.L. has received behavioral support services for his autism—designed to modify and reduce his "maladaptive behaviors"—since he was four years old. As part of the therapy with his support specialist, A.L. has worked on altering his need for extreme rigidity and routine, as well as learning to "tolerate waiting" for things. Through this therapy, he has learned enough patience to tolerate waiting up to fifteen to twenty minutes for things, which is up from a former "target wait time" of thirty seconds back in 2008.

B. Disney's General Programs for All Visitors

Each day, tens of thousands of visitors experience Disney's world-famous theme parks. A.L. I , 900 F.3d at 1274. While guests at these parks can experience shows, parades, and concerts without waiting in line, in order to experience the rides and some other attractions at the parks, visitors will stand in lines—called Stand-By lines—for some attractions and wait until they are at the front of the line to enter the ride; sometimes, the wait times can extend for over an hour. Id. at 1275. Over time, Disney has tried to remedy this problem by creating different programs to reduce standby wait time—namely, the FastPass system and Re-admission ("Re-ad") Passes. See id. at 1275–76. The FastPass system is available to all guests. Id. at 1275. Most attractions have both the Stand-By line and the FastPass line. As we explained in A.L. I :

Disney's present version of FastPass is the FastPass+ system. With FastPass+, a guest can make advance reservations for up to three rides for each day of his visit. A guest might reserve one ride at 10:00 a.m., one at 1:30 p.m., and one at 4:00 p.m. At each of those reserved times—or within an "arrival window" around the reserved time—the guest can go to the ride and board through the express FastPass line, which typically involves a wait of no more than 5 to 10 minutes. This eliminates the need to stand physically in a line for those three rides.

FastPass+ reservations are available on a first-come, first-served basis. FastPass+ reservation times are part of each ride's capacity inventory. Once capacity is reached for the ride, no more FastPass+ reservations for that ride are granted for that day. All guests who have purchased an admission ticket to a theme park can make their FastPass+ selections up to 30 days in advance. If a guest is staying at a Disney Resort hotel, the guest can make his FastPass+ selections up to 60 days prior to check-in.

Id. at 1275–76.

On the other hand, Re-ad Passes are "instant access passes" that allow guests "to access immediately a ride by going to the short FastPass line." Id. at 1276. Re-ad Passes are essentially "an ameliorative tool" that Disney offers guests, whether disabled or not, who have had a negative or an unpleasant experience. Id. "A guest can use a Re-ad Pass at any time and for any ride, whereas a FastPass reservation is for a specific ride at a set time and must be used within an hour of that time." Id.

C. Disney's Programs for Accommodating Visitors with Disabilities

Unlike the FastPass system, which is available to all visitors, the Guest Assistance Card ("GAC") system was Disney's primary accommodation for visitors with disabilities and their families. Id. at 1298. Until October 2013, the GAC system provided a disabled guest and his group with unlimited, repeated, and on-demand access to rides and attractions. Id.

Disney, however, determined that the GAC system proved unmanageable, fraught with widespread abuse and fraud. It became an unlimited front-of-the-line pass for anyone requesting it because Disney could not ask a visitor for proof of disability. In fact, the GAC system became a media sensation for all of the wrong reasons. For example, parents with the financial means would pay disabled tour guides to lead them through Disney parks so they could skip long lines. According to a study of five of the most popular attractions conducted by Disney's Industrial Engineering team, the GAC system usage was "much higher" than the number of GAC passes issued. The study concluded that the GAC system was unintentionally providing a small minority of visitors multiple opportunities to experience a given ride while denying non-GAC visitors the chance to experience a given ride even once. This study prompted Disney to consider and implement changes to the GAC system.

In October 2013, Disney replaced the GAC system with the Disability Access Service ("DAS") program. Id. at 1276. The DAS program does not require guests physically to stand in line. Id. at 1277. DAS cardholders can wait in a specific attraction's line "virtually" while being elsewhere in the park. DAS cardholders are given a "return time," and upon returning at their "return time," DAS visitors enter the FastPass line, which typically involves a wait of no more than five to ten minutes. Id . at 1275–77. They can use DAS to go on rides with shorter wait times while they wait virtually for the return time on a ride with a longer wait time. Id. at 1277. Moreover, with a DAS card, DAS visitors’ return time appointments are good until the end of day, meaning that the guest may return to ride the attraction at any point following the scheduled return time. Id. And if the total wait time posted at the attraction is fifteen minutes or less, DAS visitors are typically given access immediately. Id. at 1278. A DAS visitor may hold only one return time at any given time.

In addition to DAS, Disney offers a variety of other individualized services to assist guests with cognitive disabilities including autism,...