March 13, 2019
Certified Questions from the United States Court of Appeals
for the Fifth Circuit
W. Green Justice
opinion we consider two questions certified to this Court by
the Fifth Circuit Court of Appeals: (1) Is a plasma
collection center a "public facility" under Texas
Human Resources Code (THRC) section 121.002(5), and if so,
(2) what standard applies for determining whether a public
facility's rejection of a person with a disability
constitutes impermissible discrimination under the THRC? We
hold that a plasma collection center is a "public
facility" under section 121.002(5). We further hold that
a plasma collection center may reject a person with a
disability-eliminating their opportunity to donate plasma and
receive compensation-without committing impermissible
discrimination under section 121.003(a) when: (1) the plasma
center's rejection does not meet the THRC's
definition of "discrimination" or satisfies an
exception to the definition of "discrimination,"
such as the application of eligibility criteria that screen
out persons with disabilities, but are shown to be necessary
for the provision of services; or (2) the defendant
establishes that allowing the person with a disability full
use and enjoyment of the public facility would pose a direct
threat to the health or safety of others. See 42
U.S.C. § 12182(b)(2)(A)(i), (b)(3).
Plasma, Inc. operates plasma collection centers across the
United States. At these centers, CSL extracts the donor's
blood, separates the donor's plasma from the red blood
cells, and then returns the red blood cells to the
donor's bloodstream. After this extraction process, CSL
compensates the donor,  processes the plasma to create a
marketable plasma byproduct, and ultimately sells this
byproduct to pharmaceutical companies. The federal Food and
Drug Administration (FDA) regulates this plasma extraction
process. The FDA licenses and audits plasma collection
centers. Under the FDA's regulations, CSL must screen all
potential donors to determine whether each individual is
eligible to donate. See 21 C.F.R. § 630.10.
During the screening, potential donors answer health-related
questions, and CSL's medical staff, referring to
CSL's medical guidelines, determine their eligibility by
checking their vital signs and considering their medical
history, current medications, and whether they have recent
tattoos. For example, CSL's medical guidelines on
eligibility provide that if a potential donor suffers from
anxiety requiring the use of a service dog, he or she is
ineligible to donate. CSL's medical staff is permitted to
contact CSL physicians to discuss particular potential
donors. Individuals who fail the screening are deferred,
meaning they are not permitted to donate and receive no
compensation. Mark Silguero and Amy Wolfe were potential
donors at CSL.
suffers from bad knees and uses a cane. CSL and Silguero
agree that Silguero qualifies as a person with disabilities
under the Americans with Disabilities Act (ADA) and the THRC.
Silguero had previously donated plasma at CSL between January
and April 2014. Silguero attempted to donate again on January
2, 2015. At that time, the condition of Silguero's knees
had worsened to the point of needing knee replacements.
Silguero went through CSL's donor-screening process, and
CSL informed him that he would be deferred and unable to
donate that day. Silguero claims he was deferred because of
his "unsteady gait" and because CSL believed that
he could not transfer safely to and from the donation bed.
Silguero became upset, shook his finger at the medical staff,
and told them they would be sorry. As a result, CSL deferred
Silguero permanently, banning him from donating at CSL.
suffers from an anxiety disorder and utilizes a service dog
to improve her symptoms. Having never donated at CSL before,
Wolfe went to CSL to donate plasma on October 9, 2016. Both
CSL and Wolfe agree that Wolfe qualifies as a person with a
disability under the ADA and the THRC. CSL did not allow
Wolfe to donate because she required a service animal to
treat her anxiety. In deferring her, CSL relied on its
guidelines that a person is ineligible to donate if they
suffer from anxiety requiring the use of a service dog.
Silguero filed suit against CSL in federal court on August
24, 2016, alleging unlawful discrimination on the basis of
his disability. He sought injunctive relief under Title III
of the ADA and both injunctive relief and damages under
chapter 121 of the THRC. The district court allowed Wolfe to
intervene as a plaintiff on March 28, 2017, because her
claims against CSL for disability discrimination presented
common questions of fact and law. On August 14, 2017, each
side moved for summary judgment. CSL argued that it was
neither a place of "public accommodation" under the
ADA, because it did not qualify as a "service
establishment," nor a "public facility" under
the THRC. It further asserted that Silguero and Wolfe
(collectively, the "plaintiffs") could not
establish a genuine issue of material fact as to whether CSL
fell under the ADA or THRC. The plaintiffs argued that a
plasma collection center falls within the plain meaning of
"service establishment" under the ADA because it is
simply an establishment that provides a service. The
plaintiffs cited a Tenth Circuit Court of Appeals case in
support of this argument. See Levorsen v. Octapharma
Plasma, Inc., 828 F.3d 1227, 1234 (10th Cir. 2016)
(holding that a plasma collection center was a "service
establishment" under the ADA). Under the THRC, the
plaintiffs argued that a plasma collection center qualifies
as a retail business and commercial establishment to which
the general public is invited or, alternatively, as an
"other place of public accommodation."
district court granted summary judgment in favor of CSL. No.
2:16-CV-361, 2017 WL 6761818, at *1 (S.D. Tex. Nov. 3, 2017)
(slip copy). The district court first concluded that a plasma
collection center is not a place of "public
accommodation" under section 12181(7) of the ADA.
Id. at *4. The court reasoned that plasma collection
centers are not "other service establishment[s]"
under section 12181(7)(F) because they pay donors for their
plasma rather than offering a service in exchange for
decided that the ADA does not apply, the district court
elected to maintain supplemental jurisdiction over the
plaintiffs' state law claims. See id. at *5
(citing Baker v. Farmers Elec. Coop., Inc., 34 F.3d
274, 283 (5th Cir. 1994)). Explaining that the THRC provides
for persons with disabilities to have full use and enjoyment
of a public facility in Texas, the court analyzed whether a
plasma collection center falls within the meaning of
"public facility" under the THRC. Id.;
see also Tex. Hum. Res. Code § 121.003(a). The
court looked to the plain meaning of "public
facility" under the THRC, concluding that a plasma
collection center does not qualify as a public facility
because it is not a place of public accommodation under
section 121.002(5). 2017 WL 6761818, at *5. Specifically, the
[A] plasma-donation center does not supply any good or
service for convenience or need. Rather, the donor sells
blood plasma to the center. Because the roles of seller and
buyer are reversed in the plasma-donation context,
plasma-donation centers such as CSL do not qualify as places
of public accommodation under Texas Human Resources Code
§ 121.002(5). Id. The district court also
reasoned that the public is not generally invited to a plasma
collection center. Id. at *6. It noted that although
a plasma collection center is arguably a commercial business,
it only purchases plasma from those who pass the screening,
and it does not invite the general public, in its entirety,
to donate; "[a]t most, it invites the general public to
find out whether they meet the criteria for donating."
Id. Therefore, the district court determined that a
plasma collection center does not represent the open and
accessible nature of the establishments listed in section
121.002(5) and could not be considered a public facility
under the THRC. Id.
Fifth Circuit affirmed the district court's holding that
a plasma collection center is not an "other service
establishment" under the ADA. 907 F.3d 323, 332 (5th
Cir. 2018). After concluding that the ADA does not apply to a
plasma collection center, the Fifth Circuit certified
questions to this Court as to whether the THRC governs plasma
collection centers such as CSL's. Id. at 333.
Those questions are:
1. Is a plasma collection center [like those operated by CSL]
a "public facility" under Texas Human Resources
Code § 121.002(5)?
2. If so, would Texas law allow the plasma collection center
to reject a "person with a disability,"
see Tex. Hum. Res. Code § 121.002(4), based on
the center's concerns for the individual's health
that stem from the disability? What standard would apply to
determining whether the plasma collection center properly
rejected the person, rather than committed impermissible
discrimination under Texas Human Resources Code §
Id. We accepted the certified questions. 62 Tex.
Sup. Ct. J. 90 (Oct. 26, 2018).
Texas Human Resources Code Chapter 121
121 of the THRC, which was enacted before and differs
substantially from its federal counterpart in the ADA,
embodies the purpose of "encourag[ing] and enabl[ing]
persons with disabilities to participate fully in the social
and economic life of the state, to achieve maximum personal
independence, . . . and use all public facilities available
within the state." Tex. Hum. Res. Code § 121.001;
see also Americans with Disabilities Act of 1990,
Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. ch.
126); Act of May 20, 1969, 61st Leg., R.S., ch. 416, 1969
Tex. Gen. Laws 1374 (codified at Tex. Hum. Res. Code ch.
121). The Legislature has instructed that the provisions of
THRC chapter 121 are to be "construed in a manner
compatible with other state laws relating to persons with
disabilities." Tex. Hum. Res. Code § 121.009.
Additionally, the statute "shall be liberally construed
to achieve [its] purpose and to promote justice." Tex.
Gov't Code § 312.006(a).
THRC provides that "[p]ersons with disabilities have the
same right as persons without disabilities to the full use
and enjoyment of any public facility in the
state." Tex. Hum. Res. Code § 121.003(a) (emphasis
(c) No person with a disability may be denied admittance to
any public facility in the state because of the
person's disability. No person with a disability may be
denied the use of a white cane, assistance animal,
wheelchair, crutches, or other device of assistance.
(d) The discrimination prohibited by this section includes a
refusal to allow a person with a disability to use or be
admitted to any public facility, a ruse or
subterfuge calculated to prevent or discourage a person with
a disability from using or being admitted to a public
facility, and a failure to:
(1) comply with Chapter 469, Government Code;
(2) make reasonable accommodations in policies, practices,
and procedures; or
(3) provide auxiliary aids and services necessary to allow
the full use and enjoyment of the public facility.
Id. § 121.003(c), (d)(1)-(3) (emphasis added).
The THRC defines "public facility" as including:
a street, highway, sidewalk, walkway, common carrier,
airplane, motor vehicle, railroad train, motor bus,
streetcar, boat, or any other public conveyance or mode of
transportation; a hotel, motel, or other place of lodging; a
public building maintained by any unit or subdivision of
government; a retail business, commercial establishment, or
office building to which the general public is invited; a
college dormitory or other educational facility; a restaurant
or other place where food is offered for sale to the public;
and any other place of public accommodation, amusement,