from the United States District Court for the Southern
District of Texas
KING, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge.
Plasma, Inc. is a plasma collection center that will pay
anyone who passes its screening test to donate plasma. Mark
Silguero and Amy Wolfe are both individuals with disabilities
who attempted to donate plasma but whom CSL Plasma deferred
for reasons they allege related to their disabilities.
Silguero used a cane and had a limp; Wolfe had anxiety and
required the use of a service animal. Silguero and Wolfe sued
under the Americans with Disabilities Act ("ADA")
and Chapter 121 of the Texas Human Resources Code
("THRC"). The district court granted summary
judgment in CSL Plasma's favor. It concluded that those
laws did not apply because CSL Plasma was neither a
"public accommodation" under the ADA nor a
"public facility" under the THRC.
affirm the district court's decision regarding the scope
of the ADA. The core dispute is whether CSL Plasma is a
"service establishment" within the definition of
"public accommodation." We conclude it is not. CSL
Plasma does not provide any "service" to customers.
Instead, it pays them for the inconvenience of donating
plasma so that it can collect a commercially valuable asset.
We certify the THRC questions to the Supreme Court of Texas.
Plasma operates a network of plasma collection centers. It
offers to pay members of the public to donate plasma.
Individuals who wish to donate must pass a screening
evaluation that confirms that the individual donating and the
plasma extracted meet Food and Drug Administration (FDA)
regulations. Those who do not pass the screening, for
whatever reason, are deferred-told they will not be permitted
to donate and will not be paid.
who pass the screening are taken to a room where they are
connected to specialized machinery that removes their blood,
separates the plasma, and then re-circulates the remaining
elements of blood into their system. After CSL Plasma
extracts the plasma, it pays the individual. There is no
indication in the record that members of the public pay CSL
Plasma in exchange for plasma collection or that it offers
any services for which the public can pay. CSL Plasma sells
the plasma it collects to other private entities who use it
for various medical purposes. Nothing in the record indicates
that CSL Plasma enters into any sort of contingency fee
arrangement with members of the public, where the individual
donating receives a percentage of the eventual sale price.
and Wolfe are two individuals who attempted to donate plasma
at CSL Plasma but were both deferred. Silguero had previously
donated before his deferral, while Wolfe had never donated
before. The parties dispute the precise motivation for why
Silguero and Wolfe were each deferred. But all agree that the
deferrals were based on pre-existing policies implicating
Silguero's and Wolfe's disabilities.
was initially deferred in December 2013, and he says that the
deferral was based on CSL Plasma's policy not to accept
donors who have an "unsteady gait," though the
precise reason for his initial deferral has changed over
time. Silguero has bad knees and requires the use of a cane
to walk. After the initial deferral, CSL Plasma permanently
deferred him because he allegedly later threatened employees
for initially deferring him. Silguero has presented evidence
that he never threatened employees or reacted inappropriately
to the initial deferral; he asserts that CSL Plasma's
reason for his permanent deferral is essentially a pretext to
cover for discrimination based on his disability. He remains
was deferred in October 2016 based on CSL Plasma's policy
not to accept donors whose anxiety was severe enough to
require the use of a service animal. The parties agree that CSL
Plasma had a preexisting policy that applied to all
individuals who used animals to treat anxiety. At the time
Wolfe tried to donate, a doctor at CSL Plasma was contacted
to verify that she would be unable to donate due to her
service animal. The record is unclear to what extent the
doctor reviewed information unique to Wolfe. But regardless
of her unique circumstances, she will be unable to donate so
long as she uses her service animal to treat the anxiety.
and Wolfe both sued, alleging unlawful discrimination under
Title III of the ADA, 42 U.S.C. § 12182, and Chapter 121
of the THRC, Tex. Hum. Res. Code § 121.001 et
seq. CSL Plasma moved for summary judgment, arguing that
it was neither a "public accommodation" under the
ADA nor a "public facility" under the THRC. It also
argued that Silguero and Wolfe could not identify a genuine
issue of material fact or show that CSL Plasma had done
anything other than impose a legitimate safety requirement.
The district court granted summary judgment, concluding that
neither the ADA nor the THRC applied to CSL Plasma. It did
not address CSL Plasma's other arguments. Silguero and
Wolfe now appeal.
Standard of Review
court reviews de novo a district court's grant of summary
judgment, applying the same standard as the district court.
Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th
Cir. 2017) (citing Ford Motor Co. v. Tex. Dep't of
Transp., 264 F.3d 493, 498 (5th Cir. 2001)). It reviews
all evidence in the light most favorable to Silguero and
Wolfe, the non-moving parties. See id. at 328-29.
first address why we agree with the district court that CSL
Plasma is not a "public accommodation" under the
ADA. We then explain why we certify questions about the THRC
to the Supreme Court of Texas and set out the necessary
information for the Supreme Court of Texas to answer the
crux of this case is whether CSL Plasma is a "service
establishment" under 42 U.S.C. § 12181(7)(F). If it
is, then it is a "place of public accommodation,"
and Title III of the ADA applies to it. See 42
U.S.C. § 12182(a). If it is not, then it cannot be held
liable for discrimination under Title III.
term "service establishment" appears in the
definition of public accommodation. The definition includes
twelve different categories of accommodations. The single
category at issue in this case includes an enumerated list of
fifteen establishments, followed by the catchall phrase
"or other service establishment." 42 U.S.C. §
12181(7)(F). Silguero and Wolfe do not argue that
plasma collection centers are among the enumerated items
listed in that category.
the dispute is over the catchall phrase "other service
establishment." The parties agree that a "service
establishment" is, unsurprisingly, an
"establishment" providing "services" to
others. They also agree that CSL Plasma is an
"establishment." They disagree about whether CSL