                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1460
                         ___________________________

               Matina Koester; N.K., By next friend Matina Koester

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

             Young Men's Christian Association of Greater St. Louis

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                            Submitted: January 12, 2017
                               Filed: May 2, 2017
                                 ____________

Before LOKEN, BEAM, and BENTON, Circuit Judges.
                           ____________

BEAM, Circuit Judge.

       Matina Koester appeals the district court's1 grant of summary judgment in favor
of the YMCA of Greater St. Louis (YMCA) in this Americans with Disabilities Act
(ADA) public accommodations case. We affirm.


      1
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
I.    BACKGROUND

       Koester's minor child, N.K., is an individual with a disability within the
meaning of Title III (the public accommodations prong) of the ADA. N.K. has Down
syndrome and autism. The YMCA provides children with summer camp
opportunities that are advertised as enriching, creative, recreational, and self-esteem
enhancing, and are open to children of all abilities. At summer camps, the YMCA
has sole custody of the child for up to ten hours per day. The YMCA Family
Handbook provides that if participating children have an Individualized Education
Plan (IEP) or a behavioral management plan through the schools, a copy of that plan
"must" be given to the director and reviewed before the child's participation is
authorized. The purpose of this requirement is to allow the YMCA to determine
reasonable and necessary accommodations for children with disabilities.

        In May 2014, Koester sought to enroll N.K. in a YMCA summer camp and
called the YMCA to inquire about the requirements for enrollment. YMCA
employees informed Koester that the YMCA would need a copy of N.K.'s IEP to
complete the enrollment in summer camp. Koester objected to this requirement,
believing that the document was highly personal and confidential and instead offered
to meet with the director and discuss what accommodations would be necessary for
N.K. During the phone call, YMCA employees (as best we can tell, Koester spoke
to at least three YMCA employees on the phone that day) reiterated that the IEP was
required for enrollment. Koester did not ultimately fill out any paperwork to have
N.K. participate in the summer camp. And as we understand the record, the next
contact between Koester and the YMCA was in October 2014, when counsel for
Koester sent the YMCA a letter dated October 10, 2014, stating that for future
summer camp participation and in lieu of providing the IEP, Koester was willing to
provide additional information about N.K.'s limitations and need for accommodations
from N.K.'s pediatrician. The YMCA responded with a letter, dated October 17,
2014, explaining its IEP policy and describing its belief that the IEP information was

                                         -2-
necessary in a setting where the child would be in the custody of the YMCA for
upwards of ten hours per day. However, in this letter, the YMCA ultimately offered
an alternative to the IEP requirement. The October 17 letter indicated the YMCA
would accept information from N.K.'s pediatrician regarding N.K.'s "socio-emotional,
adaptive behavior, speech/language, fine/gross motor functioning and cognitive
functioning," along with N.K.'s specific diagnosis and "information regarding the
need for adaptive equipment, communication skills, dietary restrictions, behavioral
concerns, toileting information, behavioral triggers, ability to interact with
peers/adults and his ability to follow directions." Nonetheless, Koester brought the
current action in federal court days later, on October 20, 2014, asserting a violation
of Title III of the ADA, 42 U.S.C. §§ 12181-12189. Koester alleged that the YMCA
discriminated against N.K. based upon his disability by refusing to make a reasonable
modification to its IEP policy and that Koester proposed to "engage in an interactive
process to determine what accommodations for N.K. would be reasonable." Upon
cross motions for summary judgment, the district court granted the YMCA's motion.
The district court found that the YMCA did not discriminate against N.K., and
further, that Koester's proposed modification was not a reasonable request, and even
if it had been reasonable, it would have fundamentally altered the YMCA summer
camp program. Koester appeals.

II.   DISCUSSION

       We review the district court's grant of summary judgment de novo, applying
the same standards as the district court. Tusing v. Des Moines Indep. Cmty. Sch.
Dist., 639 F.3d 507, 514 (8th Cir. 2011). Summary judgment is appropriate where the
evidence shows no genuine issue of material fact exists and the movant is entitled to
judgment as a matter of law. Id. The evidence and all inferences must be viewed in
the light most favorable to the nonmoving party. Id.

      Title III of the ADA prohibits discrimination by public accommodations and
provides, "[n]o individual shall be discriminated against on the basis of disability in

                                         -3-
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." 42 U.S.C. §
12182(a). To establish a claim under Title III, the person alleging disability must
show that:

      (1) that he is disabled within the meaning of the ADA, (2) that the
      defendant is a private entity that owns, leases, or operates a place of
      public accommodation, (3) that the defendant took adverse action
      against the plaintiff that was based upon the plaintiff's disability, and (4)
      that the defendant failed to make reasonable modifications that would
      accommodate the plaintiff's disability without fundamentally altering the
      nature of the public accommodation.

Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999). The parties agree that
N.K. is disabled within the meaning of the ADA by virtue of his diagnoses of Down
syndrome and autism. Further, the YMCA operates a place of public accommodation.
At issue in this case are prongs three and four of the above test: whether the YMCA
took adverse action against N.K. based upon his disability, and to a somewhat lesser
degree, but one we will analyze, whether the YMCA failed to make reasonable,
requested modifications to its IEP policy.

       Koester argues that the YMCA's blanket policy of requiring a child's IEP
before admitting the child to its summer camp programs is discriminatory because the
IEP in effect serves to screen out children with disabilities from the YMCA summer
camp programs. Discrimination is defined by the statute to include application of
policies which tend to screen out disabled individuals, unless the policy is necessary
to provide those services. 42 U.S.C. § 12182(b)(2)(A)(i). Furthermore,
discrimination includes the failure to make reasonable modifications in policies,
practices or procedures necessary to accommodate disabled individuals, unless doing
so would fundamentally alter the nature of the service. Id. § 12182(b)(2)(A)(ii).


                                          -4-
       Koester argued that the YMCA did not show that providing the entire IEP, as
opposed to just the portions of it relevant to the camper's experience, was a necessity
for the YMCA to provide its summer camp services. The district court found that the
YMCA did not need to show necessity because the IEP requirement did not have a
tendency to screen out individuals. Instead, the purpose of the IEP requirement, the
district court found, was to better accommodate children with disabilities and keep
all children safe. The court specifically found that the undisputed facts showed that
the purpose of the IEP requirement was not to identify children with disabilities; it
was to best serve children, already identified by their parents as needing special
accommodations.

      We are sympathetic to the argument that the YMCA likely does not need to
view the entirety of a child's IEP in order to accommodate disabled campers. In
deposition testimony, the YMCA Director of Inclusion Services admitted that there
was information in the IEP that was unnecessary for the YMCA to carry out its
summer camp programs. At oral argument, counsel for the YMCA agreed that a
redacted version of the IEP certainly would have sufficed for its purposes of
accommodating children during summer camp. However, the parties did not get to
that point in their interaction, and Koester did not ultimately fill out enrollment
papers or take other action to sign N.K. up for summer camp.

       Koester's strongest argument is based upon an illustration in the Department
of Justice's Technical Assistance Manual for Title III of the ADA. See Klingler v.
Dir., Dep't of Revenue, State of Mo., 433 F.3d 1078, 1081 (8th Cir.), opinion
supplemented on reh'g, 455 F.3d 888 (8th Cir. 2006) (ADA Technical Assistance
Manuals are agency interpretations entitled to "some" deference). Section 4.1300
indicates that the ADA prohibits unnecessary inquiries into the existence of a
disability. Illustration 1 to that section states:

      A private summer camp requires parents to fill out a questionnaire and
      to submit medical documentation regarding their children's ability to

                                         -5-
      participate in various camp activities. The questionnaire is acceptable
      if the summer camp can demonstrate that each piece of information
      requested is needed to ensure safe participation in camp activities. The
      camp, however, may not use this information to screen out children with
      disabilities from admittance to the camp.

ADA Title III Technical Assistance Manual at § 4.1300, Illus. 1 (1993).

       Giving this illustration some deference, we find that it ultimately does not
advance Koester's cause. While the summer camp here cannot demonstrate that each
piece of information requested is needed (and in fact has conceded the opposite),
there is not a scintilla of evidence that the IEP requirement screened out applicants
with disabilities. Indeed, a YMCA employee indicated that Koester was the first
parent to refuse to provide the IEP as part of the enrollment process for summer
camp; that the IEP requirement had been in place for nearly fifteen years; and the
YMCA successfully accommodates more than 700 campers with various disabilities
each summer. Thus, we find the district court correctly concluded at step three of the
prima facie case that Koester could not establish that the YMCA took adverse action
against N.K.

       The district court nonetheless went on to evaluate whether the YMCA failed
to make reasonable modifications that would accommodate N.K.'s disability without
fundamentally altering the nature of the public accommodation.                N.K.'s
accommodation claim is unusual, however, because the accommodation requested
relates to the YMCA's information requirements, rather than any particular steps the
YMCA might take (or might refuse to take) to provide physical or emotional support
to N.K. during his participation in the YMCA summer camp. For instance, the more
typical failure-to-accommodate claim in this kind of case would be that a parent
requested one-on-one support for her child and the organization refused to provide
it. The district court found that Koester's requested "accommodation" was to enroll
N.K. without providing an IEP, and that such modification to the YMCA's policies


                                         -6-
was not reasonable because it would fundamentally alter the nature of the YMCA's
programs. While we are not necessarily convinced this is the kind of accommodation
Title III of the ADA contemplates, we will proceed under the assumption that
Koester's request to provide less information than the entire IEP was a request for an
accommodation.

        In her complaint, Koester asserts that she "offered to engage in an interactive
process to determine what accommodations for N.K. would be reasonable." In the
employment context, once an employee has requested accommodation, the employer
must engage in an interactive process to find reasonable accommodations for the
disability, and its failure to engage in this process is evidence of the employer's bad
faith. Fjellestad v. Pizza Hut of Am., Inc. 188 F.3d 944, 951-52 (8th Cir. 1999). To
show an employer failed to participate in the interactive process, the employee must
show the employer knew about the disability; accommodations were requested; the
employer did not make a good faith effort to assist with the accommodation
requested; and the employee could have been reasonably accommodated but for the
employer's lack of good faith. EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 971
(8th Cir. 2014). Again, assuming with a hefty dose of skepticism that these concepts
are applicable in this Title III2 case, the YMCA participated in an interactive process
in good faith by responding within days to Koester's October letter. The YMCA's
letter did not cursorily adhere to its original demand for the IEP, but instead set forth
the information it would need to administer its program, via a third-party source such
as N.K.'s pediatrician. The interactive process ended when Koester filed suit shortly
thereafter. Contrary to Koester's arguments, the YMCA did offer to modify the policy
as long as it obtained the information it deemed necessary to accommodate N.K.

      2
        Indeed, an electronic search of the Technical Assistance Manual, cited by
Koester, contains no references to the term "interactive process" and the term
"reasonable accommodation" is used only three times, to discuss analogies to or the
requirements of Title I employment accommodation situations. See also Mershon
v. St. Louis Univ., 442 F.3d 1069, 1078 (8th Cir. 2006) (speculating in Title III case
about whether the interactive process is required in an academic setting).

                                          -7-
While she argues that she offered to engage in an individualized, interactive process,
the record belies this notion; "interaction" concluded when Koester filed suit after the
mutual exchange of exactly one letter. Thus, we find that Koester cannot establish
the fourth step of the prima facie case because Koester filed suit before any particular
or final decisions were made. Accordingly, we find that the YMCA did not
unreasonably fail to accommodate N.K.3

III.   CONCLUSION

      If the YMCA had refused to enroll N.K. based upon his disability, or if it had
examined the IEP and refused to provide accommodations for camp participation
based upon the information in the IEP, this might be a different case. As it is, the
YMCA did not violate Title III of the ADA.4
                     ______________________________




       3
        Koester argues that the YMCA's discriminatory intent should not even be in
issue, and instead, her claim should be analyzed under the "modified burden shifting
analysis" of an accommodation claim–(1) that N.K. is disabled; (2) the YMCA is a
place of public accommodation; and (3) the YMCA failed to reasonably modify its
policies to accommodate N.K.'s disabilities, unless such modification would
fundamentally alter the nature of its summer day camp. Mershon, 442 F.3d at 1076.
We agree with the YMCA that Koester did not advance this theory to the district
court (likely because she pleaded a discrimination cause of action).
       4
       The YMCA moved to supplement the record on appeal to include late-
disclosed discovery evidence of other lawsuits filed by Koester. Because we find that
the YMCA prevails without inclusion of the supplemental materials, we deny the
motion as moot.

                                          -8-
