April 26, 2010

Re: FTA Complaint Number 08-0160

Dear [name withheld]:

This letter responds to your complaint against the Whatcom Transportation Authority (WTA) alleging discrimination on the basis of disability. 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 comply with Title II of 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 alleged that:

• On January 31, 2008, a WTA Bus Driver unfairly made you and your service dog exit the bus, causing you to walk a great distance to your destination. The next day, the same operator pulled over for approximately three minutes and looked at you very angrily in the mirror after you boarded the vehicle.

We apologize for the delay in responding to your complaint. FTA investigated your allegations and sent an information request to WTA. We received a response from WTA that addressed and provided relevant information on your allegation. Your allegation is addressed in detail below.

In its response, WTA provided a copy of the Bus Operator’s account of what happened on the bus and maintains that the Operator responded correctly to the behavior of your service animal. According to the Bus Operator’s notes, “during the trip the dog licked two passengers on two separate boardings and barked loudly on three or four separate occasions.” The Bus Operator further stated that when he arrived at the Indian College, he got out of his seat and told you that if your dog continued this unacceptable behavior you would have to de-board the bus. The Bus Operator’s notes state that at that moment, a regular rider boarded the bus with his two little girls and your dog immediately lunged at the girls and almost got away from you. According to the Bus Operator, he made the decision to ask you to remove the dog from the bus based on the dog’s behavior.

Under §37.167(d) of the DOT ADA regulations, fixed route transit systems shall permit service animals to accompany individuals with disabilities in vehicles and facilities. However, individuals are responsible for maintaining control over their animals and caring for them at all times. An entity does not have to transport an animal that is not under control or poses a direct threat to the health or safety of others.

In your February 2, 2008 e-mail to Kim Cederstorm of WTA, you acknowledged that your service animal was in training. In addition, as indicated in the e-mail you provided, you were invited to meet with Donna Hall from WTA to observe your service animal on the bus. In our discussion on December 30, 2009, you stated that you never met with WTA.

Bus Operators are often on the front line in assessing whether a service animal is under the control of the owner. Although there is some discrepancy between your and the operator’s account, we cannot determine the specifics of what happened in your interactions or verify the behavior of your dog.

After reviewing all of the submitted materials, the information provided does not support a finding that WTA violated the provisions of the DOT ADA regulations. This concludes our processing of this matter and no further action will be taken. While FTA’s decision in your case is administratively final, it does not prevent you from pursuing this matter privately in the appropriate court. If you have any questions regarding our determination, please contact me or Hyacinth Clarke of my staff at (202) 366-7142 or via e-mail at hyacinth.clarke@dot.gov. Any further correspondence should reference FTA Complaint No. 08-0160. Thank you for bringing your concerns to our attention.

Sincerely,

John R. Day
Acting ADA Team Leader
Office of Civil Rights

cc: WTA