STEPHEN B. KUKETZ vs. ROSLYN PETRONELLI & another. [Note 1]

CORDY, J. In this case, we hold that a fitness club's refusal to permit a wheelchair racquetball player to compete in a club league under the condition that the wheelchair player receive two bounces and his able-bodied (referred to by the parties as "footed" player) opponents receive one bounce is not an act of discrimination on the basis of physical disability in violation of Federal and State antidiscrimination laws.

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1. Background. We summarize the undisputed facts drawn from the summary judgment record. Stephen B. Kuketz, a paraplegic since 1991, was by 1995 a nationally ranked wheelchair racquetball player. In the fall of 1994, Kuketz joined the Brockton Athletic Club (club), a fitness club then owned and operated by MDC Fitness Corporation (MDC). [Note 2] The club sponsored a racquetball league in which men and women competed in divisions organized by gender and ability. The men's "A" league was the most competitive division. In January, 1995, Kuketz paid a nominal league fee and requested placement on the men's "A" league roster. [Note 3] Because of his disability, Kuketz is not competitive at any level of racquetball unless permitted to return the ball after its second bounce. He presumed that in the club's league play he would be granted this accommodation, while his footed opponents would be required to return the ball after no more than one bounce. [Note 4]

The official rules of racquetball (rules), which govern league play, provide that the "objective" of the game is "to win each rally" and that a player loses a rally when he is "unable to hit the ball before it touches the floor twice." [Note 5], [Note 6] The rules further

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provide for a modification to the "standard rules" for wheelchair competition, and establish five different levels or "divisions" for such competition. [Note 7] Wheelchair players competing within these divisions must return the ball before the third bounce (i.e., "[t]he ball may hit the floor twice before being returned"), except in the "Multi-Bounce Division," where the "ball may bounce as many times as the receiver wants though the player may swing only once to return the ball to the front wall." [Note 8] These modified rules also provide that a player "can neither intentionally jump out of his chair to hit a ball nor stand up in his chair to serve the ball." [Note 9] The rules have no provision governing competitive play between a wheelchair player and a footed player. [Note 10]

In February, 1995, the general manager of the club, Roslyn Petronelli, after consulting with other players in the league, informed Kuketz that he would not be allowed to play in the men's "A" league. [Note 11] Petronelli cited safety concerns as the

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primary reason [Note 12] and offered Kuketz two alternative options: he could play in a lower-level league under the one-bounce rule or he could play in a wheelchair league that she would assist him in organizing. [Note 13] Kuketz declined both offers.

Kuketz subsequently filed a complaint with the Massachusetts Commission Against Discrimination (commission) against the club, charging that it violated Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq. (2000); G. L. c. 151B, § 5; and G. L. c. 272, § 98, by refusing to allow him to participate in the men's "A" league. [Note 14], [Note 15] In defense of their actions, the club contended that Kuketz was denied the accommodation he requested for safety reasons and because to grant it would fundamentally change the nature of the game.

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Before the commission completed its investigation, the club ceased operations. Kuketz then moved to amend his complaint by substituting MDC and Charles M. Mirrione, MDC's president, as respondents, and by adding Petronelli as a respondent. [Note 16] Prior to a ruling by the commission on that motion, Kuketz removed his charges from the commission pursuant to G. L. c. 151B, § 9, and filed a complaint in the Superior Court.

The claims in Kuketz's Superior Court complaint relevant to this appeal alleged discrimination on the basis of physical disability in violation of G. L. c. 272, § 98, and G. L. c. 151B, and in violation of Title III of the ADA. [Note 17] On cross motions for summary judgment, a Superior Court judge granted judgment for the defendants on all of Kuketz's claims. Specifically, the judge ruled that the defendants were not required under Title III of the ADA to permit Kuketz two bounces in league-sponsored racquetball games against footed players because such a modification would "fundamentally alter the nature of the racquetball competition," [Note 18] and that Kuketz's State law disability

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claim failed because the interpretation of G. L. c. 272, § 98, proceeds "hand in hand" with the interpretation of the ADA. Kuketz appealed, asserting that the judge erred in finding that his requested modification constituted a fundamental alteration of the game of racquetball, and that the absence of an individualized assessment of his abilities and the reasonableness of the requested modification precluded summary judgment for the defendants. [Note 19] We transferred the case here on our own motion and now affirm the judgment of the Superior Court.

2. Discussion. The ADA was enacted in 1990 for the express purpose of providing "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Title III of the ADA confers rights to disabled patrons of places of public accommodation, "thus enabling individuals with disabilities to participate more fully in the mainstream of society with improved access to hotels, convention centers, entertainment and sporting events, and commercial establishments." 1 H.H. Perritt, Jr., Americans with Disabilities Act Handbook § 6.01, at 389 (2003). Section 12182 of Title III of the ADA sets out the general rule:

"No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."

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The statute then defines discrimination to include:

"[A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations."

Id. at § 12182(b)(2)(A)(ii).

It is undisputed that Kuketz is an individual with a disability as defined in the ADA. [Note 20] There is also no dispute that the club was a place of public accommodation covered under Title III of the ADA. [Note 21] The issue we must decide is whether the club unlawfully discriminated against Kuketz when it refused to modify its policies and practices to allow Kuketz to play in the men's "A" league under a two-bounce rule.

The United States Supreme Court has noted that Title III of the ADA "contemplates three inquiries: whether the requested modification is 'reasonable,' whether it is 'necessary' for the disabled individual, and whether it would 'fundamentally alter the nature of' the competition. . . . Whether one question should be decided before the others likely will vary from case to case, for in logic there seems to be no necessary priority among the three." (Citation omitted.) PGA TOUR, Inc. v. Martin, 532 U.S. 661, 683 n.38 (2001) (Martin).

The defendants do not contest that Kuketz's requested modifications -- to play in a wheelchair and to be given two bounces -- are "necessary" for Kuketz to play in the men's

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"A" league. [Note 22] There is significant dispute, however, as to the reasonableness of the modifications sought in light of the safety concerns raised by the defendants. There is also disagreement on whether the modifications would fundamentally alter the nature of the game. Because we conclude that affording Kuketz two bounces against footed players in league play would fundamentally alter the nature of the competition, we need not otherwise address the reasonableness of Kuketz's requested modifications. [Note 23] School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987) (finding accommodation for employee unreasonable if it requires fundamental alteration in nature of program). See Ganden vs. National Collegiate Athletic Ass'n, No. 96C 6953 (N.D. Ill. Nov. 21, 1996) ("modification is unreasonable if it . . . requires a 'fundamental alteration' in the nature of the privilege or program").

The "fundamental alteration" inquiry was the central issue before the United States Supreme Court in Martin. Casey Martin, a professional golfer afflicted with a degenerative circulatory disorder that made walking an eighteen-hole golf course a physical impossibility, requested permission to use a golf cart during the final stage of a professional tour qualifying tournament. Martin, supra at 668-669. PGA TOUR, Inc., the sponsor of the tournament, refused to waive its walking rule. [Note 24] Id. at 669. At trial and subsequently on appeal, the PGA TOUR

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argued that walking constituted a substantive rule of golf and that waiving this rule in any circumstances would fundamentally alter the nature of the competition. Id. at 670. The Supreme Court disagreed, deciding, inter alia, that permitting Martin to use a golf cart would not work a fundamental alteration of the game of golf. Id. at 683. According to the Court:

"[A] modification of [the PGA TOUR's] golf tournaments might constitute a fundamental alteration in two different ways. It might alter such an essential aspect of the game of golf that it would be unacceptable even if it affected all competitors equally; changing the diameter of the hole from three to six inches might be such a modification. Alternatively, a less significant change that has only a peripheral impact on the game itself might nevertheless give a disabled player, in addition to access to the competition as required by Title III, an advantage over others and, for that reason, fundamentally alter the character of the competition."

Id. at 682-683. The Court concluded that the PGA TOUR's walking rule, which was "based on an optional condition buried in an appendix to the Rules of Golf," was neither an essential element of the game nor "an indispensable feature of tournament golf." [Note 25] Id. at 683, 685 ("essence of the game has been shot-making"). The Court also rejected the PGA TOUR's contention that Martin would gain an unfair advantage over his competitors if permitted to use a golf cart. [Note 26] Id. at 686-688.

Applying these principles to the present matter, we find that summary judgment was properly granted. Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536 (1992) ("order granting . . . summary judgment will be upheld if the

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trial judge ruled on undisputed material facts and his ruling was correct as a matter of law"). Unlike the use of carts in golf, the allowance for more than one bounce in racquetball is "inconsistent with the fundamental character of the game." Martin, supra at 683. The essence of the game of racquetball, as expressly articulated in the rules, is the hitting of a moving ball with a racquet before the second bounce. [Note 27] Giving a wheelchair player two bounces and a footed player one bounce in head-to-head competition is a variation of the official rules that would "alter such an essential aspect of the game . . . that it would be unacceptable even if it affected all competitors equally." [Note 28] Id. at 682. The modifications sought by Kuketz create a new game, with new strategies and new rules. [Note 29] The club is certainly free to

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establish or enter into a league that plays this variation of racquetball, but it is not required by the ADA to do so. [Note 30]

Kuketz argues that the "fundamental alteration" inquiry requires the defendants to evaluate his particular circumstances before rejecting his specific modification requests. His argument, however, is based on a misreading of Martin. While the Court held that an individualized inquiry was required by the ADA to determine whether a rule peripheral to the nature of an athletic event "might be waived in individual cases without working a fundamental alteration," it also concluded that, "[t]o be sure, the waiver of an essential rule of competition for anyone would fundamentally alter the nature of" the event (emphasis added). Id. at 689. Because the record demonstrates that Kuketz's requested modifications require the "waiver of an essential rule of competition," the defendants need not make an individualized inquiry to determine the reasonableness of those modifications. Id.

Finally, Kuketz contends that the defendants' refusal to accommodate his needs is unjustified when the defendants previously have accommodated the needs of less skilled players through the practice of "spotting" points. [Note 31] That practice, however (just as a handicap in golf), does not change an essential aspect of how the game is played. Fitness and athletic

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clubs open to the public may choose to "level the playing field" in any number of ways, and such practices are not to be discouraged, but the law does not require modifications that change the fundamental rules of the sport.

Judgment affirmed.