September 6, 2011

Re: FTA Complaint Number 11-0280

Dear [name withheld]:

This letter responds to your complaint against the South Bend Public Transportation Corporation (TRANSPO). The Federal Transit Administration (FTA) Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation are in compliance with the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the Department of Transportation’s (DOT) implementing regulations at 49 CFR Parts 27, 37, and 38.

In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If FTA identifies what may be a violation, we first attempt to provide technical assistance to assist the public transit provider in complying with the ADA. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transit provider which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement.

Each response is developed based on the specific facts and circumstances at issue. A determination resulting from a review of these facts is not intended to express an opinion as to the overall ADA compliance of that transit provider.

Specifically, your complaint alleges the following:

• TRANSPO fixed-route operators, especially along the #9 Northside/Mishawaka route, have refused to pull to the curb for you to board the bus easily with your walker. They have also refused your requests to lower the lift/ramp. You provide the names of three bus operators who have neglected to assist you with boarding.

FTA investigated your allegations and sent an information request to TRANSPO. We received a response from TRANSPO that addressed your allegations and provided relevant information. Your allegations are addressed below.

Relevant ADA Requirements

The DOT ADA regulations in 49 CFR Part 37 do not specifically address the need for fixed-route bus operators to pull close to the curb. Section 37.3(b), however, states generally: “Notwithstanding the provision of any special transportation service to individuals with disabilities, an entity shall not, on the basis of disability, deny to any individual with a disability the opportunity to use the entity’s transportation service for the general public, if the individual is capable of using that service.” Some individuals with disabilities may be unable to board a bus unless the operator pulls to the curb or another location where the lift/ramp can be deployed and accessed by the individual.

Under §37.165(g), public transit providers such as TRANSPO must permit individuals with disabilities who do not use wheelchairs, including standees, to use a vehicle’s lift or ramp to enter the vehicle. As Appendix D of the regulations explains, “people using canes or walkers and other standees with disabilities who do not use wheelchairs but have difficulty using steps (e.g. an elderly person who can walk on a plane without use of a mobility aid but cannot raise his or legs sufficiently to climb bus steps) must also be permitted to use the lift, on request.” Section 37.165(f) requires operators to assist individuals with disabilities with the use of ramps/lifts.

Finally, §37.173 requires that transit providers ensure that their personnel are trained to proficiency, as appropriate to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities.

TRANSPO’s Response

In response to your complaint to FTA, TRANSPO interviewed the three vehicle operators who you allege have made it difficult for you to board the bus and submitted copies of their signed statements. The operators are familiar with you since you are a regular rider. All denied your allegations and claim they have never denied your request to use the lift/ramp or pull closer to the curb. According to TRANSPO, vehicle operators are instructed to pull as close to 6–12 inches from the curb as possible. Parked vehicles or other obstacles may sometimes preclude operators from curbing the vehicle.

TRANSPO confirmed that you had complained previously about operators refusing to deploy the lift/ramp or pull close to the curb. While TRANSPO’s investigation at the time did not substantiate your claims, in response to your complaint the agency did issue bulletins to all TRANSPO operators reminding them to lower the lift and pull close to the curb. One bulletin from the general manager issued on June 9, 2008, for example, states, “Any person who asks you to lower the bus, deploy the lift or ramp, you are required to do so, regardless of whether or not, you believe that person or persons to be disabled. Failure to comply with the ADA regulations will result in disciplinary action.” TRANSPO also informed FTA that its senior operations supervisor, Jim Moon, speaks with you frequently about various issues and follows-up with operators.

Conclusion

The information gathered does not support a finding that TRANSPO has violated provisions of the DOT ADA regulations. A discrepancy exists between your and the transit provider’s account. You state TRANSPO operators are refusing to pull the vehicles to the curb and deploy the lift/ramp for you and the operators claim the opposite. We cannot reconcile the different accounts or confirm your interactions with a particular vehicle operator on any given day.

The record shows that you are in frequent communications with TRANSPO and that the senior operations supervisor has been willing to work with you directly. We would encourage you to keep this line of communication open and report any future incidents to TRANSPO so that it can follow-up promptly with the vehicle operator.

By copying TRANSPO on this letter, we are also asking that it continue to ensure its operators are aware of its instructions to curb the bus and the requirement to allow standees with disabilities on the lift/ramp. If you or other riders continue to report that operators are unwilling to deploy the lift/ramp, we would encourage TRANSPO to not only address the situation with the individual operator involved but also consider a broader effort to re-educate operators, such as reissuing the 2008 bulletins or similar ones.

Based on the above, we are taking no further action and are closing your complaint as of the date of this letter. If you have any questions, please contact me or Dawn Sweet at (202) 366-4018 or via e-mail at dawn.sweet@dot.gov. Any further correspondence should reference FTA Complaint No. 11-0280. Thank you for bringing your concerns to our attention.

Sincerely,

John R. Day
ADA Team Leader
Office of Civil Rights

cc:
TRANSPO
FTA Region 5