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Fenimore v. Blachly-Lane County C.E.A.

Court of Appeals of Oregon

April 10, 2019

Laura Cooper FENIMORE, an individual, Plaintiff-Appellant,
v.
BLACHLY-LANE COUNTY C.E.A., an Oregon cooperative, and Cliff Kelley, an individual, Defendants-Respondents.

          Argued and submitted September 10, 2018

          Lane County Circuit Court 16CV29175; Charles D. Carlson, Judge.

          Laura Cooper Fenimore argued the cause and fled the briefs pro se.

          Matthew J. Kalmanson argued the cause for respondents. Also on the brief was Hart Wagner LLP.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Plaintiff, an individual who has a disability and is wheelchair-dependent, sued defendants, a private electrical cooperative (the cooperative) and its president, under ORS 659A.142(4), which prohibits places of public accommodation from discriminating against customers or patrons on the basis of disability. Defendants had refused to relocate a board meeting, which plaintiff had attempted to attend as a guest of two of the cooperative's members, from a nonwheelchair-accessible location to a wheelchair-accessible location. Plaintiff sought damages and injunctive relief. Defendants moved for summary judgment, arguing that plaintiff lacked standing. The trial court granted the motion, and plaintiff appeals.

         Held:

         To the extent that the trial court granted defendants' motion for summary judgment based on a conclusion that plaintiff lacked standing, that was an error; plaintiff had standing under ORS 659A.885(1). Notwithstanding that error, the Court of Appeals affirmed the trial court's ruling on the alternative basis that plaintiff could not, as a matter of law, establish that she was an actual or potential customer or patron of the cooperative. The Court of Appeals also concluded that plaintiff's claim for injunctive relief was moot.

         Affirmed.

         [297 Or.App. 48] SHORR, J.

         Plaintiff, an individual who has a disability and is wheelchair dependent, sued defendants, a private electrical cooperative (the cooperative) and its president and chairman of the board of directors, under ORS 659A.I42(4). That statute prohibits places of public accommodation from discriminating against customers or patrons who are individuals with disabilities. Plaintiff sought damages and injunctive relief after she was unable to attend a board meeting of the cooperative that was scheduled to be held in a conference room that was not wheelchair accessible. The trial court granted summary judgment in defendants' favor. For the reasons explained below, we conclude that plaintiff cannot sustain a claim for damages under ORS 659A.I42(4) against defendants. We also conclude that plaintiff's claim for injunctive relief is now moot. Accordingly, we affirm.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The relevant factual background is undisputed. Defendant Blachly-Lane County C.E.A. is a private electric cooperative that provides electric power exclusively to its members within a defined service area. To become a member of the cooperative, a person must live or operate a business within the service area, pay a membership fee, agree to purchase electric energy for their home or place of business exclusively from the cooperative, grant certain easements or rights-of-way to the cooperative, and abide by other requirements in the cooperative's bylaws. Potential members must apply for membership, at which point the board of directors will review the application and accept or reject the applicant. The cooperative holds a monthly meeting of the board of directors. Members may attend and participate in those meetings during the "member comment" period. Nonmembers are not permitted to attend the meetings except as the guest of a member and may not participate in the meetings except as an observer.

         [297 Or.App. 49] Plaintiff does not reside or work in the cooperative's service area, and, therefore, is not eligible for membership in the cooperative, cannot purchase electric energy or receive related services from the cooperative, and is not permitted to attend board meetings except as a nonparticipating guest. In 2015, plaintiff was invited to attend an upcoming board meeting by the Lemlers, friends of plaintiff and members of the cooperative. Wayne Lemler was considering running for a seat on the cooperative's board of directors, but he had concerns regarding the cooperative's financial practices. The Lemlers hoped that plaintiff, who is an attorney and has a background in forensic accounting, could provide them with advice based on her observations of the board meeting.

         When plaintiff and the Lemlers arrived at the cooperative's headquarters for the meeting, they learned that the meeting would be held in a second-floor conference room, which was not wheelchair accessible. Plaintiff, who depends on a wheelchair for mobility, requested that the meeting be moved to a location on the ground floor so that she could attend in person. Various representatives of the cooperative refused to relocate the meeting and instead offered telephonic access on the ground floor. Plaintiff insisted that she was allowed to attend the meeting in person and that, by excluding her, the cooperative was violating laws that protect individuals with disabilities. Ultimately, rather than proceed or relocate, the cooperative cancelled the meeting.

         Shortly thereafter, plaintiff filed a formal complaint against defendants with the Bureau of Labor and Industries (BOLI), alleging that defendants had violated ORS 659A.I42(4).[2]Under that statute,

"[i]t is an unlawful practice for any place of public accommodation, resort or amusement as denned in ORS 659A.400');">659A.400, or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is an individual with a disability."

[297 Or.App. 50] BOLI investigated and issued a Notice of Substantial Evidence. Specifically, BOLI found that there was "substantial evidence" that defendants had "violated ORS 659A.142 in making a restriction based on Complainant's disability" based on the fact that defendants had offered plaintiff only "physically segregated" access to the meetings and defendants' failure to provide BOLI with a "compelling reason to believe that relocating the meeting * * * would have resulted in a significant difficulty or expense." Although BOLI concluded that the cooperative is a place of public accommodation and plaintiff is an individual with a disability, it does not appear that BOLI considered whether plaintiff was, in fact, an aggrieved party under ORS 659A.142(4), that is, whether she was a "customer or patron" of the cooperative. Subsequent efforts at conciliation between plaintiff and defendants failed. At that point, BOLI chose not to bring formal charges against defendants and closed the case.[3]

         After the close of her BOLI case, plaintiff brought her civil action against defendants, in which she alleged that she was "denied public accommodation due to her disability" in violation of ORS 659A.142(4).[4] Plaintiff sought damages for emotional distress and requested injunctive relief in the form of a "decree" requiring that the cooperative hold future board meetings in an "accessible location."

         Defendants moved for summary judgment, arguing that plaintiff lacked standing to pursue her claims against defendants. The trial court granted defendants' motion, and plaintiff appealed. We review a trial court's grant of summary judgment for legal error, and we will affirm if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Balzer v. Moore, 293 Or.App. 157, 159, 427 P.3d 193 (2018). In determining whether the court erred in granting summary [297 Or.App. 51] judgment, "we view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party-in this case, plaintiff." Eads v. Borman, 234 Or.App. 324, 326, 227 P.3d 826 (2010).

         II. PLAINTIFF'S CLAIM FOR DAMAGES

         As described, plaintiff brought an action for money damages against defendants under ORS 659A.I42(4), in which she alleged that defendants had unlawfully discriminated against her on the basis of her disability. Under ORS 659A.I42(4),

"[i]t is an unlawful practice for any place of public accommodation, resort or amusement as denned in ORS 659A.400');">659A.400, or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is an individual with a disability."

         "Public accommodation," means, in relevant part, "any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation ...


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