United States Court of Appeals

For the Eighth Circuit

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No. 18-2352

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Maria C. Childress, An Individual, on behalf of Herself and Others Similarly

Situated, also known as Tina Childress; Association of Late Deafened Adults,

(ALDA), an Illinois Corporation

lllllllllllllllllllllPlaintiffs - Appellees

Mary Stodden, An Individual, on behalf of Herself and Others Similarly Situated

lllllllllllllllllllllPetitioner - Appellee

Hearing Loss Association of America, Greater St. Louis Chapter, (HLAA-StL), an

unincorporated affiliate of the Hearing Loss of America, A Maryland Corporation

lllllllllllllllllllllPlaintiff - Appellee

v.

Fox Associates, LLC, doing business as Fabulous Fox Theatre

lllllllllllllllllllllDefendant - Appellant

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No. 18-2577

___________________________

Maria C. Childress, An Individual, on behalf of Herself and Others Similarly

Situated, also known as Tina Childress; Association of Late Deafened Adults,

(ALDA), an Illinois Corporation

lllllllllllllllllllllPlaintiffs - Appellees
Mary Stodden, Individual, on behalf of Herself and Others Similarly Situated

lllllllllllllllllllllPetitioner - Appellee

Hearing Loss Association of America, Greater St. Louis Chapter, (HLAA-StL), an

unincorporated affiliate of the Hearing Loss of America, A Maryland Corporation

lllllllllllllllllllllPlaintiff - Appellee

v.

Fox Associates, LLC, doing business as Fabulous Fox Theatre

lllllllllllllllllllllDefendant - Appellant

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Appeals from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: April 17, 2019

Filed: August 7, 2019

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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.

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SHEPHERD, Circuit Judge.

Fox Associates, LLC, doing business asthe Fabulous Fox Theater, appealsthe

district court’s

1

adverse grant of summary judgment and award of attorney’s fees,

expenses, and costs on an Americans with Disabilities Act claim brought by Maria

1The Honorable Catherine D. Perry, United States DistrictJudge for the Eastern

District of Missouri.

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Childress and Mary Stodden, two individuals with hearing impairments, as well as

two organizations that serve individuals with hearing impairments. Having

jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Fox Associates runs the Fabulous Fox Theater (the Fox), a 4,500-seat live

theater in St. Louis, Missouri. The Fox does not develop or produce its own shows;

rather, it provides a venue for traveling Broadway showsto perform. These traveling

shows do not rehearse at the Fox for any length of time before performing. They

simply arrive at the venue, set up their sets and equipment pursuant to their needs,

and conduct multiple performances of the same production. 

In April 2016, Maria Childress, a late-deafened adult, contacted the Fox and

requested captioning for a performance of the musical Rent, scheduled for May 2017. 

Childress, while fluent in American Sign Language (ASL), prefers captioned shows

to ASL-interpreted shows so that she can experience the writers’ original dialogue

and lyricsrather than an ASL interpreter’s version. The Fox told Childress that it did

not offer captioning and had no plans to do so in the future, but that Childress was

welcome to attend a scheduled ASL-interpreted performance of the show. 

Childress and the Association of Late-Deafened Adults (ALDA) filed suit

against Fox Associates under Title III of the Americans with Disabilities Act (ADA),

42 U.S.C. § 12182, in June 2016.

2 She sought injunctive and declaratory relief,

including mandated captions at all performances for which the Fox received a

captioning request two weeksin advance, publicity that captions were available along

with a way to request them, and sale of ticketsto deaf and hard-of-hearing patrons by

2Plaintiffs Mary Stodden and the Hearing Loss Association of America

(HLAA) joined the lawsuit in July 2017.

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non-telephonic means. After Childress sued, the Fox offered to amend its policies

and to offer a single prescheduled captioned performance of each Broadway

production as long as a theater patron requested captions for a performance of that

production two weeks in advance. To that end, the Fox provided a single scheduled

captioned performance—a Saturday matinee—for each of six separate productions

from May 2017 to January 2018. The Fox also began publicizing the availability of

these performances and provided a means to request captioning and purchase tickets

through its website.

Childress was unable to attend the prescheduled captioned performance of

School of Rock in January 2018, so the Fox provided a second captioned performance

a week earlier. It notifiedChildress, however, that this second captioned performance

was an exception to its policy and that future requests for additional captioned

performances would not always be granted.

3 When Michele Westmaas, a season

ticketholder and member of ALDA, requested that the Fox provide captioning at the

remaining 2018 performance for which she had tickets, the Fox instead exchanged

her tickets for tickets to the prescheduled captioned performance.

While Childress’sinitial request asked the Fox to provide open captioning, the

Fox chose to provide closed captioning.

4

It therefore purchased six electronic tablets

that allow theater patrons to view captions during a performance. The tablets can be

used from any seat in the theater. The Fox also offers device holders for these tablets

so that patrons can view captions hands-free, but these holders can only be affixed to

3This hedging by the Fox bluntsthe force of the dissent’s contention that, since

the original compromise wasreached, the Fox has not denied the plaintiffs captioning

at any requested performance.

4Closed captioning is generally provided on handheld devices and is visible

only to the patron who requeststhe captioning, while open captioning is projected on

a surface that is visible to an entire theater or section of the theater. 

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wheelchair-accessible seating due to fire hazards. Captions are generated and appear

in real time so as to exactly duplicate what occurs onstage, including dialogue, song

lyrics, and sound effects. Because every live performance isslightly different, a live,

in-person court reporter must be present to transcribe captions for each performance.

Following the Fox’s implementation of its single-captioned-performance

policy, both parties moved for summary judgment. The plaintiffs argued that,

because the ADA requires equal service, the Fox was required to offer captioning

when requested, subject only to the ADA’s “undue burden” affirmative defense. 

Because Fox Associates refused to provide financial information during discovery,

stating that such information was irrelevant, and because the undue burden defense

requires consideration of a defendant’s financial state, the plaintiffs contended that

Fox Associates had waived the defense. Fox Associates argued that requiring

captioning whenever it was requested was not a reasonable modification to the Fox’s

policies, practices, and procedures and that, because it provided captioning whenever

the plaintiffsrequested it, their claim for injunctive relief was moot. It further argued

that it was not yet raising an undue burden argument and that this fact, alone,

prevented a grant of summary judgment against it.

The district court found that the plaintiffs brought suit under the ADA’s

auxiliary aids and services requirements, see 42 U.S.C. § 12182(b)(2)(A)(iii), rather

than the less-specific section addressing modification to “policies, practices, and

procedures,” see 42 U.S.C. § 12182(b)(2)(A)(ii). It further found that failing to offer

captioning at any performance where captions were requested “resultsin deaf persons

being excluded, denied services, or otherwise treated differently than other

individuals merely because of the absence of [an auxiliary] aid. This failure violates

42 U.S.C. § 12182(b)(2)(A)(iii).” Childress v. Fox Assocs., LLC, No. 4:16 CV 931

CDP, 2018 WL 1858157, at *4 (E.D. Mo. Apr. 18, 2018). Fox Associates presented

no argument regarding the undue burden defense and the district court granted

summary judgment for the plaintiffs. It awarded them injunctive relief and, as

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relevant to this appeal, required the Fox to provide captioning whenever it received

a request two weeks in advance.

Following the grant of summary judgment in their favor, the plaintiffs moved

for an award of attorney’s fees, expenses, and costs under 42 U.S.C. § 12205. The

district court granted the motion and calculated reasonable attorney’s fees based on

the lodestar method. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). It reduced

the requested amount of attorney’s fees, however, based on its findings that the

plaintiffs’ attorney billed for clerical or secretarial work and expended time on

matters irrelevant to the case as filed. The district court therefore granted the

plaintiffs $97,920 in attorney’s fees rather than their requested $100,845. 

Fox Associates now appeals, arguing that it provides deaf and hard-of-hearing

individuals with meaningful access to its benefits and itshould be allowed flexibility

to consolidate multiple captioning requests into one performance because providing

captionsis expensive. Fox Associatesfurther challengesthe award of attorney’sfees,

arguing that the district court used an inflated hourly rate to calculate those fees,

allowed the plaintiffs’ counsel to bill for tasks he should not have included, and failed

to reduce the fee award to account for the plaintiffs’ partialsuccess on their summary

judgment motion. 

II.

Fox Associates first argues that the district court improperly granted summary

judgment for Appellees and failed to grant Fox Associates’ summary judgment

motion on Appellees’ ADA claim. “We review a district court’s decision on crossmotions for summary judgment de novo.” Thirty & 141, L.P. v. Lowe’s Home Ctrs.,

Inc., 565 F.3d 443, 445-46 (8th Cir. 2009). 

-6-
Under the ADA, a public accommodation

5 must provide auxiliary aids and

services to individuals with disabilities if such individuals need those aids and

services to enjoy “meaningful access” to the public accommodation. Argenyi v.

Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013). A person with a disability

receives meaningful access if she receives an “equal opportunity to gain the same

benefit” as a person without her disability. Id. Whether an entity provides

meaningful access is a fact-based inquiry; a public accommodation’s exact

responsibilities under the ADA must be determined on a case-by-case basis. Id. 

The exact form of auxiliary aid necessary is left up to the public

accommodation, but, once the public accommodation determines that an aid is

needed, it must provide that aid unless doing so would be an undue burden or would

fundamentally alter the nature of the provided benefit. 42 U.S.C.

§ 12182(b)(2)(A)(iii). Both the undue burden and the fundamental alteration

arguments are affirmative defenses provided by the ADA. Gorman v. Bartch, 152

F.3d 907, 912 (8th Cir. 1998) (citing 28 C.F.R. § 35.150(a)(3)). Failure to raise an

affirmative defense before the district court constitutes waiver of that defense. 

Warner Bros. Entm’t, Inc. v. X One X Prods., 840 F.3d 971, 980 (8th Cir. 2016).

On appeal, Fox Associates argues that deaf and hard-of-hearing individuals

receive meaningful access to the Fox’s productions because the Fox currently

captions one performance of each Broadway production and has never denied a

captioning request. Appellees counter that deaf and hard-of-hearing individuals are

guaranteed only one performance date while individuals without hearing impairments

may choose from a broad range of performance dates. This discrepancy, Appellees

argue, indicates that individuals with hearing impairments have less opportunity to

5Fox Associates does not dispute that the Fox is a public accommodation and

is subject to the ADA’s requirements.

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receive the benefits the Fox provides, and that, therefore, the Fox denies them

meaningful access. 

The Fox provides its scheduled captioned performance during a Saturday

matinee time slot for each Broadway production. Under the Fox’s current policies,

individuals with hearing impairments must attend that production in order to have

access to captioning and therefore cannot, like their hearing-enabled counterparts,

attend the theater during the week or in the evening. This excludes individuals with

hearing impairments from “the economic and social mainstream of American life[,]”

perpetuating the discrimination the ADA sought to address. McGann v. Cinemark

USA, Inc., 873 F.3d 218, 230 (8th Cir. 2017) (quoting PGA Tour, Inc. v. Martin, 532

U.S. 661, 675 (2001)). 

We note, too, that the Fox implemented Childress’s request for a second

captioned performance of School of Rock only after explicitly stating that it did so as

an exception to its policy and that it would not always grant similar requests in the

future.6

 We therefore find that the Fox’s one-captioned-performance policy denies

persons with hearing impairments an equal opportunity to gain the same benefit as

persons without hearing impairments, and that deaf and hard-of-hearing individuals

therefore do not have meaningful access to the benefits the Fox provides. 

Despite its failure to provide meaningful access to individuals with hearing

impairments, Fox Associates could still prevail if it could show that providing

captioning at all requested performances would be an undue burden.

7 However, in

6See Footnote 3.

7Fox Associates could also prevail if it could show implementing this requestbased captioning system would fundamentally alter the nature of the benefit it

provides. However, Fox Associates conceded in the district court that captioning is

not a fundamental alteration, see Def.’s Resps. & Objections 3, Dist. Ct. Dkt. 34-2,

and it presents no argument on this point on appeal.

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response to Appellees’ motion for summary judgment, Fox Associates explicitly

stated that it was “not asserting the affirmative defense[] of ‘undue burden’ . . . .” 

Def.’s Mem. Opp’n Pls.’ Mot. Summ. J. 7, Dist. Ct. Dkt. 50. Having failed to do so

in the district court, it cannot do so now. See Warner Bros., 840 F.3d at 980; Modern

Leasing, Inc. of Iowa v. Falcon Mfg. of Cal., Inc., 888 F.2d 59, 62-63 (8th Cir. 1989). 

Fox Associates’ conclusion that Appellees were “not entitled to summary

judgment on any non-asserted affirmative defenses[,]” ” Def.’s Mem. Opp’n Pls.’

Mot. Summ. J. 7, and its argument on appeal that the district court erred in failing to

account for a potential undue burden ignore the fact that it was Fox Associates’

responsibility to assert the undue burden defense. A party who does not assert a

defense in the district court cannot assert that defense on appeal, and Fox Associates

has therefore waived that defense.

Finding that the Fox does not provide meaningful access to individuals with

hearing impairments and that Appellees’ claim is not subject to the undue burden

defense, we conclude that the district court properly granted summary judgment in

favor of Appellees on their ADA claim. We note, however, that if the volume of

captioning requests in the future rises to the level of an undue burden on the Fox,

nothing precludes Fox Associates from bringing its own lawsuit and seeking to

modify the district court’s order in this case. 

III.

Having determined that the district court properly granted summary judgment

in favor of Appellees, we must now determine whether the district court properly

awarded Appellees over $97,000 in attorney’s fees. “Attorney’s fees are within the

broad discretion of the district court and will not be reversed absent an abuse of

discretion.” Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).

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Federal courts employ the lodestar method, which multiplies the number of

hours worked by the prevailing hourly rate, when calculating reasonable attorney’s

fees. Perdue v. Kenny A. ex rel Winn, 559 U.S. 542, 546 (2010). A district court has

“great latitude to determine a reasonable hourly rate because it is intimately familiar

with its local bar[,]” Banks v. Slay, 875 F.3d 876, 882 (8th Cir. 2017) (internal

quotation marks omitted), and it may rely on reconstructed time entries to calculate

the hours worked if those entries “satisfactorily document [the] time[.]” MacDissi

v. Valmont Indus., Inc., 856 F.2d 1054, 1061 (8th Cir. 1988). A district courtshould

exclude “hours that were not ‘reasonably expended’” from its calculations, Hensley,

461 U.S. at 434 (quoting S. Rep. No. 94-1011, at 6 (1976)), and may reduce a fee

award if a plaintiff does not obtain all the relief she sought. See id. at 435-36 (finding

that courts can reduce a fee award to account for unsuccessful claims). 

Fox Associates argues on appeal that the district court committed three errors

in calculating its award of attorney’s fees. First, Fox Associates argues that it

implemented all the remedies Appelleessought before the district court ruled in their

favor, including offering captioned performances, publicizing those performances and

providing a way to request captioning, providing handheld captioning devices, and

allowing deaf and hard-of-hearing individuals to obtain tickets through nontelephonic means. Fox Associates contends, therefore, that Appellees’ counsel

should only be compensated up until the date the Fox implemented those remedies. 

However, as Appellees correctly point out in their brief, the parties continued to fight

over how many captioned performancesthe Fox needed to provide, nothing prevented

the Fox from reverting to its previous policies, and ultimately the district court

awarded nearly all the relief Appelleesrequested in their Amended Complaint.

8

“[I]n

8Appellees additionally requested that the Fox be required to solicit and

respond to customer feedback on its captioning. The district court did not grant this

request. However, the Fox does not argue on appeal that the district court erred in

failing to reduce the attorney’s fees award based on Appellees’ failure to obtain this

remedy.

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light of the substantial relief [Appellees] obtained,” see id. at 436, we conclude that

the district court did not abuse its discretion in failing to reduce its award of

attorney’s fees based on partial litigation success. 

Second, Fox Associates argues that Appellees’ requested hourly

rate—$450—is unreasonable because it exceeds prevailing market rates and because

Appellees’ counsel does not charge his clients that much. We note first that

Appellees’ counsel does not charge his clients $450 an hour because he does not

charge a set fee at all. Rather, he relies on the jurisdictions in which he practices to

determine a fair market rate. Fox Associates does not addressthe fact that Appellees’

counsel has over 30 years of practice experience, including 10 years of experience

solely in ADA litigation involving individuals with hearing impairments. Nor does

Fox Associates present any evidence that $450 is above the prevailing market rate for

such an attorney in the St. Louis area. In fact, Fox Associates presents no evidence

as to prevailing market rates in the St. Louis area other than the rates for its own

attorneys. Because a district court is presumed to be familiar with the market rates

in its jurisdiction, see Banks, 875 F.3d at 882, and because Fox Associates has failed

to present evidence that the market rate the district court chose is unreasonable, we

find that the district court did not abuse its discretion in setting an hourly rate of

$450. 

Third and finally, Fox Associates argues that the district court should have

reduced its fee award because Appellees’ counsel impermissibly reconstructed time

entries after the fact, billed an excessive number of hours, and impermissibly billed

non-attorney work at the attorney rate. However, reconstructed time entries do not

necessarily require a fee reduction, see MacDissi, 856 F.2d at 1061, and the district

court determined that the reconstructed entries, which dealt only with brief

communications, satisfactorily documented the time. We agree. The district court

conducted a thorough review of the time entries in this case and concluded that 5.7

hours of work were not compensable as either non-attorney work or unreasonably-

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expended hours. Fox Associates provides no evidence that the district court abused

its discretion in failing to exclude more hours; indeed, Fox Associates does not even

indicate how many hours it believes were excessive. Without more, we cannot say

the district court abused its discretion in failing to reduce its fee award further for

inefficiency, and we uphold the district court’s award of attorney’s fees.

IV.

We affirm the district court’s judgment in full.

GRASZ, Circuit Judge, dissenting.

There is an old adage that “bad facts make bad law.” Colbruno v. Kessler, __

F.3d __, 2019 WL 2751434, at *7 (10th Cir. July 2, 2019) (Tymkovich, C.J.,

dissenting). Likewise, a litigation strategy can result in bad law leading to unforeseen

consequences. I fear that may be the case here. For whatever reason, the Fox

addressed only the question of meaningful access and failed to assert an undue burden

defense at the summary judgment stage, even though the Fox says the cost of

providing an in-person captioner at each performance issubstantial. This hasresulted

in a decision that could undercut the meaningful access precedent of this circuit. See,

e.g., Argenyi v. Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013).

Under the meaningful access standard, “aids and services ‘are not required to

produce the identical result or level of achievement for handicapped and

nonhandicapped persons,’ but they nevertheless ‘must afford handicapped persons

equal opportunity to . . . gain the same benefit.’” Id. at 449 (alteration in original)

(quoting Loye v. Cty. of Dakota, 625 F.3d 494, 499 (8th Cir. 2010)). While the ADA

is broad in scope, the law does not require institutions to provide all requested

auxiliary aids and services but instead only “necessary” ones. Id. The law tests what

level of provision of necessary aids and services is required for meaningful access

without reaching the affirmative defenses. See Loye, 625 F.3d at 499. This is an
“inherently fact-intensive” inquiry that “largely depends on context.” See Argenyi,

703 F.3d at 449 (quoting Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 343

(11th Cir. 2012)). 

Here, the Fox originally provided its hearing-impaired patrons with an

American Sign Language interpreter. And then, after litigation ensued, the Fox

provided Childress with the specific accommodation she asked for, live captioning

at one showing of each requested production. When Childress requested live

captioning at a different showing, the Fox provided captioning at her requested

showing. In fact, since their original compromise was reached, there is no evidence

that any of the plaintiffs have been denied captioning at a requested showing. 

Yet the court concludes that, although the Fox provides real time captioning

from a live, in-person court reporter for at least one performance of every production

at its theater and has demonstrated a willingness to work with patrons to

accommodate requests for alternative dates, it must instead provide this service at

every performance of every production in order to provide meaningful access. 

Childress expressly argued, and the court seemingly agrees, the Fox has no ability to

limit the frequency of the live captioning services it provides. In my view, this

conclusion effectively replaces the meaningful access test with an identical access

standard. I also believe this conclusion improperly cabins arguments about what

access qualifies as meaningful to the context of affirmative defenses even though the

defenses test whether the auxiliary aid or service must be provided at all, not what

level of access is meaningful. See, e.g., id. at 451 n.3. It is the meaningful access

analysis, not the undue burden standard, that determines whether it is necessary to

provide a court reporter at every performance.

Fortunatelyfor all concerned, advanced technology appears poised tomoot this

issue as a practical matter by making real time captioning of live performances

inexpensive and routine. This does not, however, negate the legal problem. A legal

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standard requiring identical access in the context of auxiliary aids and services may

have far-reaching unforeseen consequencesin other contexts. Identical access would

possibly require, for example, 24/7 sign language translation in hospitals as well as

a myriad of other requirements. Such a result is not consistent with our meaningful

access precedent. See Loye, 625 F.3d at 499 (affirming district court’s opinion

rejecting the contention that “an interpreter is mandated for every meeting”). The

benefit the Fox offers is the opportunity to attend traveling Broadway productions. 

Access to this benefit does not require live court reporters at each and every

performance of every production in order to be meaningful. 

I respectfully dissent.

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