February 2022 - Parks & Recreation - 30

LAW REVIEW
by a public entity. " 42 U.S.C. §
12131. In addition, the court noted
that the regulatory definition of
" disability " under the ADA is " a
physical
or
that
mental impairment
substantially limits one or
more of the major life activities
of such individual, " including an
" anatomical loss
affecting
one
or more body systems, such as
musculoskeletal. " 28 C.F.R. §§
35.130(b)(1)(i); 35.130(b)(1)(i).
According to the court,
since
P.M. has " only one hand, " there
was no dispute that this impairment
would qualify as having a
" disability " under the ADA. Despite
the
undisputed
nature
of
P.M.'s
disability, Defendant City,
however, had argued that P.M.
must still " meet the essential eligibility
requirements to participate
as pitcher. " In response, Plaintiff
contended that " P.M. meets the
essential
eligibility
requirements
under Title II simply because he
met the eligibility requirements of
Defendant's baseball team during
the relevant time. "
The federal district court agreed
that P.M. is " considered a qualified
individual with a disability under Title
II of the ADA " and " P.M. meets
the essential eligibility requirements
as required by the ADA. " In so
doing, the court determined " the
program in question is Defendant's
baseball team rather than the pitcher
position, which is a benefit of
membership on the team. "
Limited Participation
Opportunities
As cited by the
with a disability to participate in
their programs:
A public entity may not afford
a qualified individual with a disability
an opportunity to participate
in or benefit from the aid,
benefit, or service that is not equal
to that afforded others, nor can it
limit such individuals " in the enjoyment
of any right, privilege,
advantage, or opportunity enjoyed
by others receiving the aid, benefit,
or service. " 28 C.F.R. §§ 35.130(b)
(1)(ii); 35.130(b)(1)(vii).
Moreover,
the court acknowledged:
" A qualified individual does
not have to be completely prevented
from enjoying a service, program,
or activity by the public entity to
establish exclusion from participation
or denied benefits in violation
of the ADA. " Accordingly, in this
particular instance, the court noted
P.M. " need not show that he was
completely denied an opportunity
to participate on the team. " On the
contrary, the court found Plaintiff
must simply show that " Defendant
limited or excluded him from opportunities
afforded to and enjoyed
by others on the team. "
In this case, Plaintiff had
claimed Defendant City excluded
P.M. from " the opportunity to try
out for pitcher " by " denying him
the same number of pitches as
the other boys with two hands. "
Defendant City had claimed " every
player who tried out threw
15-20 pitches during the tryout. "
Plaintiff,
however,
federal
district
court, the ADA Title II implementing
regulations also would require
the City to provide an equal opportunity
for qualified individuals
contended
P.M. " was only allowed five or six
pitches before being denied the
pitcher position. "
As a result, Plaintiff argued that
Defendant's motion for summary
judgment should be denied because
there was a genuine dispute
30 Parks & Recreation | FEBR U AR Y 2 0 22 | PARK S ANDRECRE AT ION . OR G
as to whether P.M.'s " opportunity
to try out for pitcher was limited
regarding the number of pitches
he was allowed to throw during
his tryout. "
Reasonable Modifications
While " Title II does not include
statutory language regarding
reasonable modifications, " to
be considered " reasonable, " the
federal district court noted " an
accommodation must enable the
qualified individual to perform
the
'essential
position. "
functions'
of
Moreover, the court
found the following regulations were
" imposed to avoid discrimination
under Title II of the ADA " :
A public entity shall make reasonable
modifications in policies,
practices, or procedures when the
modifications are necessary to
avoid discrimination on the basis
of disability, unless the public entity
can demonstrate that making
the modifications would fundamentally
alter the nature of the
service, program, or activity. 28
C.F.R. § 35.130(b)(7).
Further, in cases alleging a failure to
make reasonable accommodations,
the
court
noted
" the
his
defendant's
duty to provide a reasonable
accommodation is not triggered until
the plaintiff makes a 'specific demand'
for an accommodation. " In this
case, Defendant claimed " Plaintiff's
only request for modification was
terminating Box from his position
as volunteer coach for Defendant's
team. "
Plaintiff,
" the
however,
request
modification " ;
request
contended
only came after denial
initial
for Box's removal
of
the
for reasonable
i.e.,
allowing
P.M. to try out using the safety
February 2022 - Parks & Recreation

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