                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
               ________________

               Nos. 18-3415 & 18-3501
                 ________________

             GEORGE F. MATHEIS, JR.,

                                Appellant/Cross-Appellee

                           v.

                 CSL PLASMA, INC.,

                            Appellee/ Cross-Appellant
                 ________________

      Appeal from the United States District Court
        for the Middle District of Pennsylvania
        (D.C. Civil Action No. 1-17-cv-00785)
      District Judge: Honorable Sylvia H. Rambo
                  ________________

                 Argued June 18, 2019

Before: AMBRO, RESTREPO, and FISHER, Circuit Judges

           (Opinion filed August 30, 2019)
Rees Griffiths
Zachary E. Nahass (Argued)
CGA Law Firm
135 North George Street
York, PA 17401
      Counsel for Appellant

Bruce J. Douglas (Argued)
Ogletree Deakins Nash Smoak & Stewart
225 South Sixth Street, Suite 1800
Minneapolis, MN 55402

Donald D. Gamburg
Rachel C. Stone
Ogletree Deakins Nash Smoak & Stewart
1735 Market Street, Suite 3000
Philadelphia, PA 19103
      Counsel for Appellee

Lauri A. Mazzuchetti
Kelley Drye & Warren
One Jefferson Road, 2nd Floor
Parsippany, NJ 07054

John T. Delacourt (Argued)
Joshua Penrod
Plasma Protein Therapeutics Association
3050 K Street, NW, Suite 400
Washington, DC 20007
      Counsel for Amicus Appellee/Cross Amicus Appellant
      The Plasma Protein Therapeutics Association




                              2
                      ________________
                 OPINION OF THE COURT
                     ________________

AMBRO, Circuit Judge

       Congress, when it passed the Americans with
Disabilities Act (“ADA”), found that “physical or mental
disabilities in no way diminish a person’s right to fully
participate in all aspects of society, yet many people with
physical or mental disabilities have been precluded from doing
so because of discrimination.” 42 U.S.C. § 12101(a)(1). The
remedy for this finding was “to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.” 42 U.S.C.
§ 12101(b)(1). But is it discrimination for an establishment, in
the name of safety, to bar everyone who uses a psychiatric
service animal, including someone who safely participated
more than four score times without assistance?

        George Matheis, a retired police officer who has
successfully managed a diagnosis of post-traumatic stress
disorder (“PTSD”), routinely and safely donated plasma
roughly 90 times in an 11-month period at CSL Plasma, Inc.’s
plasma donation facility. CSL barred him from making further
donations when he brought his new service dog, Odin, to the
facility the next time. It reasoned that it has a policy to bar any
individual who is prescribed daily more than two separate
anxiety medications or who uses a service animal to manage
anxiety.1 In its view, these people are categorically unsafe to
donate plasma. The company required Matheis to provide a

1
   The parties agree the two anxiety medications rule is not
relevant to this appeal.




                                3
letter from his doctor stating he had no need for a service
animal before it would screen him for further plasma donation.
He sued, lost, and appeals to us.

        We have two issues. We determine first whether plasma
donation centers—facilities where members of the public have
their plasma extracted in exchange for money—are subject to
the ADA’s prohibition on unreasonable discrimination. This
turns on whether these facilities are “service establishments”
under 42 U.S.C. § 12181(7)(F), which has produced a circuit
split between the Tenth and Fifth Circuits. We conclude, like
the District Court here, that the Tenth Circuit got it right: the
ADA applies to plasma donation centers.

       So we next consider the question posed initially,
whether CSL violated the ADA by imposing a blanket ban on
prospective donors who use a psychiatric service animal. Here
we part with the District Court. Public accommodations like
CSL must permit disabled individuals to use service animals
unless they can show a regulatory exception applies. CSL has
failed to provide evidence to satisfy the relevant exception
here—that any safety rule “be based on actual risks and not on
mere speculation, stereotypes, or generalizations about
individuals with disabilities.” 28 C.F.R. § 36.301(B). Thus we
reverse the grant of summary judgment and remand.

                    I. Factual Background
      CSL owns and operates a plasma donation facility in
York, Pennsylvania. Its business is collecting human blood
plasma from the public and selling it to third parties. It screens
prospective donors for known health risks, extracts plasma
from qualifying individuals, freezes it, and then ships it to
manufacturing plants to be made into medicines. The donation
process is intense; each session lasts as long as two hours, and
donors, who give blood as often as twice a week, must each




                                4
time pass an individualized screening process. This process
includes a check of the donor’s blood pressure and protein
levels, along with questions to see how the donor is feeling and
to check that he or she has not engaged in risky activities. CSL
pays its donors as much as several hundred dollars a month for
their plasma.

       Matheis was involved in a deadly shooting incident
while on duty as a SWAT officer with his police department in
2000. After that incident, he had problems socializing and was
soon diagnosed with PTSD. His condition sometimes causes
him to suffer panic attacks when exposed to crowded or
confined spaces, altercations, or helicopter noise. He retired
from the police force in 2007 to become a small business
owner.

       In 2016, Matheis decided to donate plasma to raise extra
money. As noted, he did so approximately 90 times during that
year at the CSL facility in York. These went off without a
hitch, and CSL paid Matheis between $250-300 a month for
his donations.

      In October 2016, Matheis’s eldest daughter enlisted in
the Navy. Seeing the stress that her leaving caused her father,
she bought him a dog, Odin, to help him cope with her absence.
Odin was trained as a service dog for Matheis soon thereafter.

       During Odin’s initial training, Matheis brought him to
CSL to introduce him to the facility. Immediately on entering
the building, his phlebotomist (someone trained to draw blood
from patients or donors) told him he could not have a dog on
the premises. Matheis did not undergo CSL’s individualized
assessment to determine if he could safely donate that day;
instead his phlebotomist referred him to the CSL nurses’
station. There he explained that Odin was a service animal that
helped him manage his PTSD. The nurse referred him to a CSL




                               5
manger, who explained that, under its policies, CSL permitted
service animals for the blind but not for anxiety. Matheis again
explained that Odin helped him manage his PTSD, a disability
under the ADA. After a phone call, the manager told him he
could not donate. Matheis offered to leave Odin in his car and
donate without him. The manager rejected this, stating he
could not donate until he brought back a letter from his
healthcare provider saying he could safely donate without
Odin. Matheis left CSL and has not returned to donate plasma
since.

       CSL’s concern is not related to any health concerns that
dogs like Odin pose; rather it has concluded that using a service
animal for anxiety means that the donor’s condition is too
severe to undergo safely the donation process.

        Matheis filed suit alleging discrimination for a failure to
accommodate his condition. To establish his claim, he must
show that (1) he is disabled, (2) CSL is a “public
accommodation” under Title III of the ADA, and (3) it
unlawfully discriminated against him on the basis of his
disability by (a) failing to make a reasonable modification that
was (b) necessary to accommodate his disability. See PGA
Tour, Inc. v. Martin, 532 U.S. 661, 683 n.38 (2001); Berardelli
v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 123 (3d Cir.
2018).

        CSL does not dispute that Matheis is disabled or that
Odin is a trained service animal. Thus this appeal hinges on
the two issues noted above: whether the ADA applies to CSL;
and, if so, whether its conduct was unlawful discrimination
under the ADA. It moved for summary judgment contending
that it was not subject to the ADA or, alternatively, that its
policy—barring all individuals who use service animals for
anxiety—was reasonable. See Defendant’s Mot. for Summ. J.




                                6
at 12–19, Matheis v. CSL Plasma, Inc., No. 1:17-cv-00785-
SHR, 346 F. Supp. 3d 723, 734 (M.D. Pa. 2018) (ECF No. 27).
       The District Court ruled that the ADA covered CSL, but
that the company did not unlawfully discriminate because it
had a legitimate, non-discriminatory reason for refusing to
allow Matheis to donate plasma, a concern that he had severe
anxiety. Matheis v. CSL Plasma, Inc., 346 F. Supp. 3d 723,
734 (M.D. Pa. 2018). The Court buttressed what it recognized
as a “necessary, yet counterintuitive,” conclusion, id. at 735,
by stressing CSL would let Matheis donate with Odin once he
cleared it with a doctor. Id. at 737 (“CSL stated that it would
admit Plaintiff if he provided it with a note from a psychologist
stating that he could donate safely with Odin accompanying
him.”) (emphasis added). But CSL’s stance is that Matheis
may not donate until he can safely donate without Odin.

       Matheis appeals the ruling, while CSL cross-appeals
contending it is not subject to the ADA at all. The Plasma
Protein Therapeutics Association also filed an amicus brief and
participated in oral argument, arguing that Title III of the ADA
does not apply to plasma donation centers like CSL.

           II. Jurisdiction and Standard of Review

       The District Court had jurisdiction per 28 U.S.C.
§§ 1331 and 1343(a)(4). Its grant of summary judgment was a
final order, and so we have jurisdiction under 28 U.S.C.
§ 1291.
      We review de novo a grant of summary judgment.
Metro Transp. Co. v. N. Star Reinsurance Co., 912 F.2d 672,
678 (3d Cir. 1990). We apply the same test the District Court
would use. Dwyer v. Cappell, 762 F.3d 275, 279 (3d Cir.
2014). Under this test, reviewing the facts in the light most
favorable to the non-mover, we grant summary judgment “if




                               7
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a).

                        III. Discussion

   A. Does the ADA apply to plasma donation centers?

        The ADA is divided into three titles of regulation—
Title I (employers), Title II (governments), and Title III (public
accommodations). Title III states that “[n]o 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 . . . .” 42 U.S.C. § 12182. It reflects the
ADA’s “comprehensive character,” Martin, 532 U.S. at 675
(quotation omitted), and defines “public accommodation” to
include, in relevant part:

       a laundromat, dry-cleaner, bank, barber shop,
       beauty shop, travel service, shoe repair service,
       funeral parlor, gas station, office of an
       accountant or lawyer, pharmacy, insurance
       office, professional office of a health care
       provider,    hospital,    or    other     service
       establishment;

       ....
42 U.S.C. § 12181(7)(F) (emphasis added). Our focus narrows
to whether a plasma donation facility is an “other service
establishment.”
       This question has already produced a circuit split. In
Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1229
(10th Cir. 2016), a divided panel held that plasma donation
centers were subject to the ADA as service establishments.




                                8
The Court relied on a broad, common definition of “service”
and “establishment”—“conduct or performance that assists or
benefits someone or something” and a “place of business,”
respectively. Id. at 1231 (quoting Webster’s Third New
International Dictionary 778, 2075 (2002)). It reasoned that
giving the term “service establishment” the ordinary meaning
of its components yielded neither ambiguity nor an irrational
result. Plasma donation centers “are ‘place[s] of business.’ . . .
And they ‘assist[] or benefit[]’ those who wish to provide
plasma for medical use—whether for altruistic reasons or for
pecuniary gain—by supplying the trained personnel and
medical equipment necessary to accomplish that goal.” Id. at
1234 (same) (alterations supplied in opinion).

       The Fifth Circuit in Silguero v. CSL Plasma, Inc., 907
F.3d 323 (5th Cir. 2018), viewed things differently. It made
two base observations—the donor is not benefited by donating,
and each of the listed service establishments provides services
to the public in exchange for money. These features did not
apply to plasma donation services. Id. at 329.

        The dissent in Levorsen took a similar line. It followed
ejusdem generis, a canon of statutory interpretation that
interprets a last, general term by looking to the preceding
examples. From these the dissenting judge proposed the
following definition: a service establishment “offer[s] the
public a ‘service’ (1) in the form of (a) expertise (e.g., barbers,
beauticians. . ., and hospitals) or (b) specialized equipment
(e.g., laundromats and gas stations), (2) for use in achieving
some desired end, (3) in exchange for monetary
compensation.” Levorsen, 828 F.3d at 1235 (Holmes, J.,
dissenting). He concluded that plasma donation centers could
not qualify as service establishments because donors do not
pay money for the service and (confusingly) because the
donation centers do not offer their services in order to benefit
the public.




                                9
       [T]o the extent that plasma-donation centers
       provide services to the public—such as those
       services identified by Mr. Levorsen and the
       United States—they do not do so for
       the public’s use in achieving a desired end;
       instead, they provide them for the centers’ use in
       achieving a desired end. More specifically,
       plasma-donation centers provide the public with
       the expertise associated with blood [extraction] .
       . . so that the centers can sell the plasma to their
       customers in the pharmaceutical industry (i.e.,
       the desired end)—not so that they can assist the
       public to achieve some desired end.

Id. at 1243 (emphases in original).

        We align with the majority in the Tenth Circuit. First,
at least here no support exists for the Fifth Circuit’s statement
that donors “do not benefit” from the act of donating. The
record is unequivocal that Matheis and other donors receive
money, a clear benefit, to donate plasma.

        Second, Judge Holmes’s attempt in his dissent to
distinguish this benefit on the basis of the secondary profit
motive of plasma facilities is unpersuasive. A bank, one of the
listed examples in § 12181(7)(F), is an obvious example of a
service establishment that uses the fruits of its public-facing
services for subsequent profit. Not only does it provide the
means and expertise to hold safely the public’s money, it also
may provide interest or other benefits (including cash or
rewards) to convince customers to entrust them with their
savings. That a bank subsequently invests, trades, or loans this
money to third parties does not make it any less a service
establishment with respect to the public.




                               10
       Moreover, any emphasis on the direction of monetary
compensation is, to us, unhelpful. Businesses that offer
services to the public convey something of economic value in
return for something else of economic value. The value
received by the service provider and given by the customer is
often money, but it need not be. Money is one proxy for
economic value, and economic value is fungible.

        The bank example shows we should not arbitrarily
narrow the scope of “service establishments” to entities that
receive compensation from customers in the form of money.
Banks and their customers exchange sources of economic
value that do not always fit into a simple “money for service”
model. As noted, customers often receive money from banks
for using the bank’s service. Banks are hardly the only
example of companies that pay the public to use their services.
Amicus Plasma Protein Therapeutics Association conceded at
oral argument that a pawnshop is a service establishment under
Title III. It pays money in exchange for people’s possessions.
So too, as the District Court noted, is a recycling center a
service establishment; it compensates consumers in exchange
for their waste and has been held subject to the ADA. Matheis,
346 F. Supp. 3d at 734 n.9 (citing Estrada v. S. St. Prop., LLC,
No. 17-cv-259, 2017 WL 3461290, *3 (C.D. Cal. Aug. 11,
2017)). These examples underscore a simple fact: providing
services means providing something of economic value to the
public; it does not matter whether it is paid for with money or
something else of value.

       Hence we conclude that a plasma donation center is a
service establishment under the ADA. It offers a service to the
public, the extracting of plasma for money, with the plasma
then used by the center in its business of supplying a vital
product to healthcare providers. That both the center and
members of the public derive economic value from the center’s
provision and public’s use of a commercial service does not




                              11
divorce the center from the other listed examples in
§ 12181(7)(F). Indeed this is an irreducible feature of a market
system.

   B. Did CSL discriminate against Matheis?
       We next turn to whether CSL violated the ADA when it
barred Matheis from donating plasma.

            i.       Legal standard

       The statute requires that public accommodations not
discriminate on the basis of disability. Discrimination
includes:

       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, [etc.].

42 U.S.C. § 12182(b)(2)(A)(ii) (emphases added).
        A company regulated under Title III may be held liable
for failing to accommodate. This is “a standard that turn[s] on
(1) whether the requested accommodation to the program was
‘reasonable’; (2) whether it was necessary ‘to assure
meaningful access’; and (3) whether it would represent ‘a
fundamental alteration in the nature of [the]
program.’” Berardelli, 900 F.3d at 115 (quoting Alexander v.
Choate, 469 U.S. 287 (1985)). The plaintiff bears the initial
burden of establishing that the desired accommodation is
reasonable and necessary, while the defendant bears the burden




                              12
of showing that it would fundamentally alter the nature of the
program. Id. at 124; see J.D. by Doherty v. Colonial
Williamsburg Found., 925 F.3d 663, 671 (4th Cir. 2019).

       CSL does not contend that permitting Odin to
accompany Matheis would fundamentally alter the nature of its
service. Nor does it dispute Matheis’s evidence showing that
Odin is a necessary accommodation (indeed, CSL’s policy
assumes that Odin is a necessary accommodation and bars
Matheis outright for it). The only question is whether his use
of Odin is reasonable.

        Title III entities are required by regulation to “modify
policies, practices, or procedures to permit the use of a service
animal by an individual with a disability.” 28 C.F.R. § 36.302.
In other words, use of a service animal by a disabled individual
“is reasonable under the ADA as a matter of law” so long as no
Department of Justice-promulgated regulation supersedes this
general rule. Berardelli, 900 F.3d at 119 (vacating a jury
verdict for a school district that denied one of its students with
epilepsy use of her service dog).2 The service-animal
regulations satisfy Matheis’s initial burden to show an
accommodation is reasonable; CSL must establish that an
exception to those regulations applies. Id. at 124.

       This burden differs significantly from the test the
District Court seems to have applied when it concluded CSL’s
denial was not based on a “discriminatory animus.” It
borrowed the employment discrimination framework from
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
2
  Though Berardelli involved the reasonableness of service
animals under the Title II regulations (Part 35), the approach
here is identical, as those animal service regulations use
“materially identical language” as the regulations under the
Title III regulations (Part 36). Id. at 118–19.




                               13
That framework involves burden shifting: a plaintiff must
establish a prima facie case of discrimination; when he does,
the burden shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the adverse action against the
employee. If the employer does so, the employee may attempt
to show the reason is a pretext to hide discrimination. See, e.g.,
Walton v. Mental Health Ass’n. of Se. Pennsylvania, 168 F.3d
661, 668 (3d Cir. 1999).

       Because a plaintiff need not show intentional
discrimination to demonstrate a violation of Title III of the
ADA, Lentini v. Calif. Ctr. for the Arts, Escondido, 370 F.3d
837, 846-47 (9th Cir. 2004), we reject using McDonnell
Douglas in this context, and instead follow the Berardelli
framework for ADA claims against a public accommodation.
Thus we must determine whether CSL has established
exceptions that permit a plasma donation center to deny a
disabled individual’s use of a service animal. If none apply,
Matheis’s use of Odin is a reasonable accommodation, and his
claim succeeds.

            ii.       Regulatory exceptions

       In Berardelli we concluded that a small group of
regulatory exceptions, both within the animal service
regulations and listed elsewhere in Part 35, formed the
exclusive bases for a government entity to deny a service
animal who is a necessary accommodation for a disabled
person:
       [The regulations] specify the limited
       circumstances in which it would be unreasonable
       to require these actors to allow the use of service
       animals: if granting access would . . . pose a
       “direct threat” to the health or safety of
       others, id. §§ 35.139, 36.208, or if the animal is




                               14
       either “out of control” or “not housebroken,”[] id.
       §§ 35.136(b)(1)–(2), 36.302(c)(2)(i)–(ii) . . . .
       Subject to these exceptions, however, the
       regulations mandate that “[i]ndividuals with
       disabilities shall be permitted to be accompanied
       by their service animals in all areas of [a covered
       actor’s facilities] where . . . program participants
       . . . are allowed to go.” Id. § 36.302(c)(7); see
       also id. § 35.136(g).


Id. at 119.

        As the citations to Part 36 indicate, identical regulations
exist for Title III entities. None is relevant here. The closest
fit is 28 C.F.R. § 36.208, which permits public
accommodations to deny anyone who poses a “direct threat” to
others. While CSL expresses concern that people like Matheis
are a threat to staff and other donors, the “direct threat”
exception requires “an individualized assessment” to
determine “[t]he nature, duration, and severity of the risk; the
probability that the potential injury will actually occur; and
whether reasonable modifications of policies, practices, or
procedures or the provision of auxiliary aids or services will
mitigate the risk,” 28 C.F.R. § 36.208, an assessment CSL did
not perform.

        That is not all that is relevant, however. The parties and
the District Court each note the eligibility regulation for Title
III public accommodations, 28 U.S.C. § 36.301, and it
ultimately controls our inquiry. It states that “[a] public
accommodation may impose legitimate safety requirements
that are necessary for safe operation. Safety requirements must
be based on actual risks and not on mere speculation,
stereotypes, or generalizations about individuals with
disabilities.” 28 U.S.C. § 36.301(b). The parties agree CSL’s




                                15
policy deferring donors who use multiple anxiety medications
or a service animal is a safety rule, so it must pass muster under
§ 36.301(b).

       The parties and the District Court also note the blood
transfusion regulation in 21 C.F.R. § 630.10, but this does not
alleviate CSL’s burden under § 36.301(b). It states a donor is
ineligible if the donation “could adversely affect the health of
th[at] donor,” 21 C.F.R. § 630.10(a), but the facility “must
determine the donor’s eligibility” by the specified procedures
for individualized assessment, 21 C.F.R. § 630.10(d). The
individualized assessment must check for

       factors that make the donor ineligible to donate.
       . . . Your assessment must include each of the
       following factors:

          (i) Symptoms of a recent or current illness;

          (ii) Certain     medical      treatments      or
          medications;

          ....

21 C.F.R. § 630.10(e)(2). The regulation does not clarify
which treatments are included among the “[c]ertain medical
treatments.”

       CSL contends that it has complete discretion to
determine what treatments, including use of service animals,
show a donor may be harmed by donating. This overreads the
blood transfusion regulation. It does not give plasma donation
centers carte blanche to ignore U.S. law, which not only
mandates that service animals be allowed, 28 C.F.R.
§ 36.302(c), but also specifies when public accommodations
may adopt rules that exclude disabled individuals in the name
of safety, 28 C.F.R. 36.301. Applied to our case, CSL may




                               16
consider a service animal among the list of “[c]ertain medical
treatments” it can assess for eligible donating of plasma so long
as it can show that the safety policy it adopts is based on “actual
risk and not mere speculation, stereotypes, or generalizations
about individuals with disabilities.”
           iii.       Is CSL’s policy a valid safety rule?

        Though CSL bears the burden to show its service animal
policy is valid under § 36.301(b), the evidence it marshals on
its behalf is unimpressive and not remotely adequate to confer
summary judgment. It relies exclusively on a declaration from
Dr. John Nelson, its divisional medical director, stating that
“[d]onors with severe anxiety may be unable to follow
directions, cause disturbances, impact the donation process . .
.[,] putting staff at risk of getting stuck with the needle and
other donors at risk of getting blood on them.” J.A. at 89. It
also states that “[i]t is my professional medical opinion that
donors with severe anxiety present serious health and safety
risks to themselves, medical staff, and other donors.” Id. at 90.
The declaration’s lone statement addressing the use of a service
animal is that

       CSL’s general policy is to defer a donor who
       requires more than two medications daily or a
       service animal for anxiety, until the need for
       medications or service animal decreases. . . . This
       policy is not directed to the use of a service dog,
       as CSL allows service dogs for vision-and
       hearing-impaired donors, but is based on the
       severity of the anxiety.

Id.

     These statements don’t get the job done. Indeed, they
seem clearly speculative and to generalize widely about




                                17
individuals who use psychiatric service animals, all of whom
CSL apparently views as people with “severe anxiety.” No
medical justification or other scientific evidence undergirds
CSL’s implicit conclusion that all those persons have “severe
anxiety” and will put staff, other donors, or themselves at risk
when donating plasma. This conclusion is not even stated; Dr.
Nelson does not connect the dots by attesting that using a
service animal indicates “severe anxiety.” This is clearly
inadequate to show that CSL’s policy is based on actual risk
and not based on speculation, stereotypes, or generalizations.

        CSL’s main retort is that Matheis cannot now challenge
Dr. Nelson’s declaration because he failed to challenge its
reliability before the District Court under Federal Rule of
Evidence 702. (CSL Br. at 31.) Though Matheis did not move
to exclude the declaration, this is not fatal; he argued before the
District Court that the testimony fails to satisfy the safety rule
regulation. See Plaintiff’s Br. in Opp’n to Def.’s Mot. for
Summ. J. at 15–16, Matheis, No. 1:17-cv-00785-SHR, 346 F.
Supp. 3d 723 (ECF No. 30). He can press this issue on appeal,
as he does, without challenging Dr. Nelson’s reliability as a
witness. (See Matheis Br. at 19, Reply at 8–9.)

        As a final Hail Mary, CSL argues it had other reasons
for concluding Matheis had severe anxiety (which we assume
for the sake of argument could support deferral for the reasons
stated in the Nelson Declaration). Discovery revealed that
Matheis had a panic attack after he was deferred from CSL (he
confronted a homeless man while leaving the facility) and that
some of his past panic attacks have been accompanied by
violent symptoms. (See generally CSL Br. at 21–29.) It asserts
that these facts show it reasonably required him to seek a
doctor’s signoff that he was safe to donate without Odin.

      While we disagree, we note a predicate problem as well.
CSL raises this issue for the first time on appeal. Before the




                                18
District Court it moved for summary judgment on two narrow
grounds: (1) that CSL was not a public accommodation under
Title III of the ADA; and (2) that its policy barring all anxiety
patients who use a service animal to treat anxiety was a
legitimate safety rule. See Defendant’s Mot. for Summ. J. at
12–19, Matheis, No. 1:17-cv-00785-SHR, 346 F. Supp. 3d 723
(ECF No. 27). We will not consider its new argument in favor
of summary judgment. See Tri-M Grp., LLC v. Sharp, 638
F.3d 406, 416 (3d Cir. 2011) (“It is axiomatic that arguments
asserted for the first time on appeal are deemed to be waived
and consequently are not susceptible to review in this Court
absent exceptional circumstances.”) (quotation omitted).3 As
CSL’s two timely justifications for summary judgment fail, we
reverse.

                        IV. Conclusion

      CSL is a public accommodation under Title III of the
ADA, and so it applies to CSL’s plasma donation center.
Hence we affirm the District Court’s ruling on this issue.

        We reverse, however, its grant of summary judgment to
CSL on whether it complied with the ADA. In doing so, we
do not suggest that CSL would be wrong in the future to require
a doctor’s note stating Matheis may safely donate with Odin.
Indeed, had CSL adopted such a stance from the start, we might
agree with how the District Court ruled. But CSL concedes
that it will only consider Matheis as a potential donor when he
provides a doctor’s note attesting he can safely donate without
Odin. CSL’s lone justification is its service animal policy,
which it does not support with evidence showing that policy is

3
  To the extent CSL has attempted to justify Matheis’s deferral
by pointing to his post-deferral panic attack that he experienced
while leaving the donation facility, we do not see how an event
that occurred after deferral could now be cited as a basis for it.




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based on actual risk and not speculation, generalizations, or
stereotypes. Moreover, CSL fails to explain why Matheis, who
has managed his PTSD for nearly two decades and safely
donated plasma roughly 90 times, should only be considered
safe to donate when he renounces the new service animal that
helps him better manage his PTSD.

       Thus we reverse and remand the District Court’s grant
of summary judgment in favor of CSL. On remand, the Court
may determine whether to permit CSL to move for summary
judgment on other grounds, to hold trial, or to conclude on the
facts presented that CSL violated the ADA.




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