The U.S. Seventh Circuit Court of Appeals last week ruled that the U.S. Postal Service's refusal to build a wheelchair ramp to enable people with disabilities to get inside was a violation of the federal Rehabilitation Act.
The decision by the three-judge panel stems from an Indiana case, but the Seventh Circuit's reach includes Wisconsin and the ruling applies here as well.
U.S. Circuit Judges David Hamilton and Michael Scudder joined U.S. Circuit Judge Doris Pryor's opinion remanding the case for a determination of whether a wheelchair ramp was a reasonable accommodation. In a concurrence, Hamilton said he would go even further.
"It’s 2023, for heaven’s sake," he wrote. "The Rehabilitation Act was enacted 49 years ago. The Americans with Disabilities Act was enacted more than 30 years ago. One would be hard pressed to find any institution other than the Postal Service that would even dare make the arguments the defense has made in this case."
The Rehabilitation Act was adopted with a goal of ensuring that people with disabilities do not “ 'live among society ‘shunted aside, hidden, and ignored,’” Pryor wrote.
Plaintiff Shellie Ellison, who uses a wheelchair, can't use the Shelbyville, Indiana Post Office because it has steps at its single entrance. The Post Office first said she should use the loading dock area to access the Post Office's services, Pryor wrote.
"Once there, she would make her way up a ramp and push the call button," she wrote. "If an employee responded — something that did not always happen — the employee would not let Ellison in through the back door. Instead, Ellison would have to wait outside on the loading dock while the employee traveled back and forth between the inside of the building and the dock to carry out her requests."
Ellison, who runs a non-profit that educates people about accessibility for people with disabilities, eventually complained to the federal agency that deals accessibility issues, but that agency determined it could not require USPS to build a wheelchair ramp because of the age of the building. The Rehabilitation Act sets different requirements for structures built before 1968, which the Shelbyville Post Office was.
"The Postal Service opted not to install a ramp on its own, either," Pryor wrote. "Instead, it spent around $60,000 renovating the area around the loading dock. This money yielded a van-accessible parking space, a call button in that space, and a less steep loading ramp. But delivery trucks often blocked the parking space, meaning Ellison still had to stay outside while waiting for an employee to help her."
The Postal Service also offered to deliver Ellison's mail — her non-profit's P.O. Box was at the Shelbyville Post Office — but she declined. She wanted to keep her professional and personal email separate and she wanted her non-profit's executives to have easy access to the non-profit's mail, Pryor said.
Others were complaining about accessibility issues and the City of Shelbyville even offered to pay for a ramp.
"The Postal Service declined, citing a policy of refusing donations for exterior physical improvements," Pryor wrote.
USPS, through its Justice Department lawyers, also argued that Ellison could visit one of two other post offices further away from her home. Customers can use it to order shipping, schedule a pick-up, and order some retail products.
"That said," Pryor wrote, "according to the website, ground shipping...is not available online; shipping materials can take over a week to arrive; some products come with delivery fees; and customers cannot receive hands-on assistance online."
The Postal Service also suggested that Ellison travel to different post offices that were further away from her house than is the Shelbyville site.
Those post offices, however, are open for fewer hours than the Shelbyville Post Office is, Pryor wrote. "The record does not reveal which services the wheelchair-accessible locations offer or whether these alternative locations provide the same assistance to customers as the Shelbyville Post Office," she said.
How could Ellison not be happy with those choices?
She sued, alleging USPS failed to provide her with meaningful access to its program as required by the Rehabilitation Act of 1973. She wanted U.S. District Judge Richard Young to direct USPS to build a wheelchair ramp, but he ruled in favor of USPS instead, dismissing Ellison's case on summary judgment.
In reversing, the panel said none of the options — or even all three combined — met the requirements of the Rehabilitation Act.
The loading dock is insufficient because "even after the modifications to the van-accessible parking space, Ellison has repeatedly been denied access to benefits of the Postal Service’s program," Pryor wrote.
The website looks like a good option "at first blush," but it, too falls short, she said.
The cheapest shipping option for packages is not available, there is no staff to help with packages, customers face shipping and handling fees not charged in a physical store, and customers must wait to get their orders filled and delivered to their homes.
"A larger concern is at play as well," Pryor wrote. "If brick-and-mortar establishments could use websites alone as an excuse to forgo physical accommodations, they could relegate people with disabilities to a digital world. This could in essence undermine the purpose of the Rehabilitation Act."
The record also does not support USPS's claim that the other post offices it encouraged Ellison to use provide the same level of service and goods.
"In essence, all we know from the record is that the alternative post offices have P.O. boxes and are further away and open for fewer hours than the Shelbyville Post Office," she said. "The Postal Service’s lack of evidence on the alternative locations is fatal to its argument."
While finding that Young's decision was wrong, the panel did not find that a favorable summary judgment decision for Ellison is warranted, either. Instead, it remanded the case to District Court for further fact finding.
Hamilton, in his concurrence, said the Shelbyville Post Office should not be allowed to refuse to install a wheelchair ramp. The federal government, he said, estimates that one in eight Americans has difficulty negotiating stairs.
"Imagine a fast-food chain with an inaccessible restaurant telling wheelchair-bound customers they should be satisfied driving to another restaurant across town, or to the next town over, or even to the next county," he wrote.
Alternatively, he said, "suppose one of the Postal Service’s competitors — FedEx or UPS or DHL — operated an inaccessible facility. Imagine they told wheelchair-bound customers, or even the United States Attorney, that it’s sufficient that another wheelchair-accessible facility is located in the next town over. Those defenses would be laughed out of court these days."
A federal enforcement action against those hypothetical entities would "ironically, be brought by the same United States Attorney’s Office defending the Postal Service’s refusal to build a ramp in this case," Hamilton said.
"In 2023," he concluded, "the refusal to make a post office wheelchair-accessible should be deemed “discrimination” under the Rehabilitation Act without further ado."
The full decision in 22-1967, Shellie Ellison v United States Postal Service, is here.
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