                                  _____________

                                   No. 95-3423
                                  _____________

Brandon Richard Roberts, by              *
and through his parents, Mary            *
Rodenberg-Roberts and Richard            *
Roberts,                                 *
                                         *
              Appellant,                 *    Appeal from the United States
                                         *    District Court for the
     v.                                  *    District of Minnesota.
                                         *
KinderCare Learning Centers,             *                 [PUBLISHED]
Inc.,                                    *
                                         *
              Appellee.                  *


                                  _____________

                      Submitted:      June 14, 1996

                               Filed: June 24, 1996
                                  _____________

Before LOKEN, ROSS, and HANSEN, Circuit Judges.
                              _____________


PER CURIAM.


     Brandon Richard Roberts filed this discrimination claim by and
through his parents, Mary Rodenberg-Roberts and Richard Roberts, alleging
that KinderCare Learning Centers, Inc., violated the Minnesota Human Rights
Act (MHRA), Minn. Stat. § 363.03, subd. 3 (1991), and the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12182 (1995), by failing to make
reasonable    accommodations    for   him    at   the   Apple   Valley,   Minnesota,
KinderCare daycare center.       Following a bench trial, the district court1
entered a judgment in




     1
      The Honorable Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota.
favor of KinderCare, concluding that KinderCare did not fail to reasonably
accommodate Brandon's disabilities because to make the accommodations the
Roberts requested for Brandon would impose an undue burden on KinderCare
and would require a fundamental alteration of KinderCare's group daycare
services.      Brandon appeals.      We affirm.


        Richard Roberts and Mary Rodenberg-Roberts (the Roberts) adopted
Brandon and his sister, Becky, on October 19, 1994.             As a result of abuse
occurring prior to the time Brandon came into the care of the Roberts,
Brandon is "disabled" within the meaning of the ADA, 42 U.S.C.§ 12102(2),
and the MHRA, Minn. Stat. § 363.01, subd. 13.              At the times relevant to
this suit, Brandon was four years old and was developmentally delayed.              He
did not play with toys, had an extremely limited vocabulary, could take up
to one and a half hours to eat a meal, and had not completed toilet
training.      Brandon also suffered from seizures and from attention-deficit
hyperactivity disorder, and had a tendency to commit self-injurious acts
and to run away.


        Because of the various implications of Brandon's disability, his
Individual Education Plan (IEP) called for a Personal Care Attendant (PCA)
to provide one-on-one care to him on a continuous basis.                 Brandon was
authorized under a Medicaid program to receive PCA services for up to 30
hours    per    week.     The    Roberts   had    encountered   "problems   with    the
reliability" of PCAs, however, and indeed, about 16 different PCAs had
cared for Brandon by the time the trial commenced.


        KinderCare Learning Centers, Inc. (KinderCare), is a for-profit
corporation providing group proprietary day care in the United States
through child care centers, including one in Apple Valley, Minnesota.
KinderCare experienced financial problems in 1989, filed for bankruptcy,
and   underwent     a   plan    of   reorganization   in   1993.   As   part   of   its
reorganization plan, KinderCare closed a




                                            2
number of its centers that were unprofitable.         KinderCare currently
requires each of its centers to be financially profitable to remain open.
The KinderCare center in Apple Valley (the Center) operates on a very
limited budget, with an operating income of only $9,600 per month.


     Ms. Rodenberg-Roberts approached Ann Marie Donahue, the director of
the Center, about enrolling Brandon at the Center on a "full-time" basis.
Ms. Donahue understood full-time care as it is commonly used, involving
about 40-50 hours per week.    Ms. Rodenberg-Roberts told Ms. Donahue that
Brandon was a child with disabilities.      She stated that Brandon would
require one-on-one care and gave Ms. Donahue a copy of Brandon's IEP and
a protocol, both of which confirmed Brandon's need for individualized care.
Ms. Rodenberg-Roberts advised Ms. Donahue that Brandon's medical assistance
provided funding for a PCA for up to 30 hours per week, but when PCA
services were unavailable, the Center would need to provide the one-on-one
care for Brandon.    Ms. Rodenberg-Roberts also told Ms. Donahue that the
Roberts currently did not have a PCA for Brandon, but that they were
seeking one.   The Center agreed to enroll Brandon on the condition that he
only attend the Center when he was accompanied by a PCA; the Center would
not provide an employee to give one-on-one care for Brandon when a PCA was
unavailable.   Brandon, by and through his parents, then filed this suit,
seeking compensatory and punitive damages, as well as injunctive relief.


     The ADA prohibits discrimination against any individual "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




                                     3
accommodation."      42   U.S.C.    §   12182(a).2     Daycare   centers,   such   as
KinderCare, are "public accommodations."             Id. § 12181(7)(K).     A public
accommodation must


     ensure that no individual with a disability is excluded, denied
     services, segregated or otherwise treated differently than
     other individuals because of the absence of auxiliary aids and
     services, unless the entity can demonstrate that taking such
     steps would fundamentally alter the nature of the . . .
     service[s] . . . being offered or would result in an undue
     burden[.]


Id. § 12182(b)(2)(A)(iii).    Significant difficulty or expense in making an
accommodation constitutes an undue burden.           28 C.F.R. § 36.104.


     As an initial matter, we find no error in the district court's
conclusion that Brandon's IEP, his protocol, and his mother's statements
were conclusive evidence of his need for one-on-one care.           The Center was
not required to utilize any internal policies KinderCare may have for
assessing a child's need for special accommodations, as such an exercise
would have been superfluous.       The Center therefore did not violate any duty
under either the ADA or the MHRA by accepting the overwhelming evidence of
Brandon's need for one-on-one care.


     We also agree with the district court that requiring the Center to
provide one-on-one care for Brandon would place an undue burden on the
Center.    See 42 U.S.C. § 12182(b)(2)(iii); Minn. Stat. § 363.03, subd.
3(c)(3).    To determine whether a burden is undue, we consider (1) the
nature and cost of the action; (2) the




     2
      Neither of parties draws any distinction between the
analysis under the MHRA and the analysis under the ADA.
Furthermore, our research has revealed no authority instructing
us on any distinctions between the two acts that would be
relevant to this case. We therefore proceed, as did the district
court, assuming that our ADA analysis applies equally to the
claim under the MHRA.

                                          4
financial resources of the site involved, the number of persons employed
at the site, the effect on expenses and resources, legitimate safety
requirements that are necessary for safe operation, or the impact otherwise
of   the   action   upon   the   operation   of   the   site;   (3)   the   geographic
separateness, and the administrative and financial relationship of the site
to the corporation; (4) if applicable, the overall financial resources of
the parent corporation and the number of facilities; and (5) if applicable,
the type of operation of the parent corporation.                28 C.F.R. § 36.104.
Given the historical unpredictability of the PCA services, Brandon's
mother's request for "full time" daycare, the safety concerns for Brandon,
and the Center's difficulty in finding on-call, part-time help, we find no
clear error in the district court's factual finding that the Roberts'
requested accommodation would require the Center to employ a full-time
caregiver for Brandon.       See Black Hills Corp. v. Commission of Internal
Revenue, 73 F.3d 799, 804 (8th Cir. 1996) (clear error standard of review
for factual findings).       The Center pays a full-time aid about $200 per
week, while the tuition per week for a child Brandon's age is only $105 per
week.    As a result, accommodating the Roberts' request would have created
a $95 per week loss to the Center, a substantial financial burden when
considered in the light of the Center's $9,600 per month operating income.
Accordingly, we agree with the district court that requiring the Center to
provide one-on-one care for Brandon in the absence of his PCA would impose
an undue financial burden on the Center.


        The Roberts argue that, in reaching its decision, the district court
failed to analyze the parent corporation's financial resources.                    The
district court correctly de-emphasized KinderCare's financial resources,
however, because the Center in Apple Valley is responsible for remaining
independently profitable and cannot rely on any resources from KinderCare
or from any other Kindercare center.




                                         5
     Because the accommodation of one-on-one care for Brandon would impose
an undue burden on the KinderCare center in Apple Valley, we hold that the
requested accommodation was not reasonable within the meaning of the ADA
or the MHRA.     So holding, we need not reach the issue of whether the
accommodation would have fundamentally altered the group daycare services
of the Center.   We also need not review the district court's discussion on
the damages issue.


     Accordingly, we affirm the judgment of the district court.


     A true copy.


           Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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