The opinion of the court was delivered by: Papak, Magistrate Judge:
This action was filed by plaintiff Barbara Boose against defendant Tri-County Metropolitan Transportation District of Oregon ("TriMet") on March 27, 2007. Boose seeks declarative and injunctive relief under Title II of the Americans with Disabilities Act (the "ADA") and Section 504 of the Rehabilitation Act (the "RA") to require TriMet to modify the operation of its paratransit program to accommodate her medical condition. Specifically, Boose requests that the court order TriMet to dispatch sedan cars or taxis only, rather than buses, in response to her requests for transportation services. This court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, and 1343.
Now before the court are the parties' cross-motions for summary judgment. Boose argues, in support of her motion (#28), both that the plain language of the ADA and RA and of the implementing regulations of the ADA requires TriMet to make reasonable modifications of its policies and practices where such modifications are necessary to avoid discrimination on the basis of disability and that the requested modification -- dispatch of sedan cars or taxis rather than buses -- is reasonable as a matter of law. For its part, TriMet argues in support of its motion (#35) that its paratransit program is itself a reasonable accommodation provided for the benefit of disabled users of public transportation services, and that neither the statutory nor the regulatory language relied upon by Boose requires it to make any further modification to its accommodation. I have considered the parties motions, oral argument on behalf of the parties, and all of the pleadings on file. For the reasons set forth below, Boose's motion is denied and TriMet's motion is granted.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S.Ct. 1261 (1996). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
TriMet, a recipient of federal funding, operates its LIFT Paratransit Program ("LIFT") as a transit accommodation for the benefit of individuals who cannot use regular, fixed-route buses due to disability. Although LIFT has been in operation since before the Americans with Disabilities Act was enacted, TriMet is required under both the ADA and the Rehabilitation Act to provide such transit accommodation to disabled persons. LIFT has been approved by the Federal Transit Administration ("FTA") as a transit accommodation program.
The LIFT program serves 22,600 clients, providing 3,500 rides per day and over a million rides per year. The majority of such rides employ one of the 225 buses in LIFT's fleet, but the buses are complemented by 15 sedans and, when no LIFT vehicle is available to meet demand, by contracted-for taxi services. LIFT operates a call center to coordinate the provision of paratransit services, and, according to its established, FTA-approved procedures, assigns vehicles to clients based solely on the times rides are requested and the pick-up locations of the prospective riders.
Boose has been a LIFT customer since approximately 1996. Among Boose's allegedly disabling medical conditions is a vestibular disorder that impacts her sense of balance and causes her to experience "vertigo, dizziness, lightheadedness and motion sickness." On January 4, 2006, Boose obtained a doctor's note requesting that she be permitted to use TriMet sedans or taxis to the exclusion of buses, because she experiences "less dizziness and nausea" when she uses those vehicles. On January 13, 2006, plaintiff formally requested "accommodation" of her vestibular condition based on the doctor's note. TriMet has not complied with Boose's request.
Title II of the Americans with Disabilities Act prohibits discrimination in the provision of public services against individuals with disabilities. See 42 U.S.C. §§ 12131, et. seq. Title II, Part A, of the ADA covers entities providing public services in general, see 42 U.S.C. §§ 12131, et. seq., whereas Title II, Part B, is applicable solely to entities providing public transportation services, see 42 U.S.C. §§ 12141, et. seq. Part A provides generally that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Part B specifies that in the context of public entities providing transportation services:
It shall be considered discrimination for purposes of section 12132 of this title . . . for a public entity which operates a fixed route system (other than a system which provides solely commuter bus service) to fail to provide with respect to the operations of its fixed route system, in accordance with this section, paratransit and other special transportation services to individuals with disabilities, including individuals who use wheelchairs, that are sufficient to provide to such individuals a level of service
(1) which is comparable to the level of designated public transportation services provided to individuals without disabilities using such system; or
(2) in the case of response time, which is comparable, to the extent practicable, to the level of designated public transportation services provided to individuals without disabilities using such system.
42 U.S.C. § 12143(a). Under Section 12143, entities providing public transportation services are required, on an annual basis, to submit for Federal Transit Administration approval "a plan for providing paratransit and other special transportation services" to individuals whose disabilities do not permit them to use regular fixed-route services. See 42 U.S.C. § 12143(c)(7); see also 42 U.S.C. §§ 12143(c)(6), 12143(c)(1). The FTA then reviews the submitted plan to determine whether it meets the requirements of Section 12143(a), and requires modification of the plan in the event that it does not. See 42 U.S.C. § 12143(d). Section 12143(e) defines discrimination in the provision of such paratransit services as follows:
(1) a failure of a public entity to which the regulations issued under this section apply to submit, or commence implementation of, a plan in accordance with ...