University of Vermont AAHS

Hebert v. Churchill Downs

U.S. District Court, Indiana
2004 WL 541038
March 2, 2004

Summary of Opinion

Plaintiff Hebert, a jockey, was permanently barred from racing by the defendant because of repeated alcohol violations.  He claimed that ejection violated his rights under the Americans with Disabilities Act.  In this opinion, the trial court upholds the ejection on the ground that it was necessary to protect the safety of the other jockeys and therefore was not prohibited by the Act.

Text of Opinion

 This case is before the Court on Defendant Churchill Downs Incorporated's Motion for Summary Judgment. Plaintiff filed suit against Defendant, alleging violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, of the Rehabilitation Act, and of Title I and Title III of the Americans with Disabilities Act (ADA). Summary judgment was entered in favor of Defendant on March 14, 2003, with regard to Plaintiff's claims of constitutional violations and violations of the Rehabilitation Act. On December 8, 2003, summary judgment was entered in favor of Defendant on Plaintiff's Title I ADA claims. On Plaintiff's remaining Title III ADA claims, Summary Judgment is hereby entered in Defendant's favor.


 Plaintiff, Tracy Hebert, is a competitive thoroughbred racing jockey. Each state where thoroughbred racing and parimutual betting are allowed has its own jockey licensing requirements and oversight agency. The agency responsible for oversight of Kentucky horse racing at the time in question was the Kentucky Racing Commission (KRC). Among other things, it licenses everyone, including jockeys, who work on a Kentucky race track. On November 21, 2000, Defendant Churchill Downs Incorporated permanently ejected Plaintiff from its properties due to his continued failed alcohol screens at the racetrack.

 Sobriety of jockeys is a major safety issue in the sport of thoroughbred racing. It is a dangerous sport in which horses weighing approximately 1,100 pounds are ridden at speeds of 35-40 miles per hour by jockeys weighing approximately 110-120 pounds. The horses race in tight bunches and often brush against each other in the heat of the race. Strength, alertness, and split second timing and judgment are all required of every jockey in every race. A jockey impaired by alcohol presents a serious safety threat to all other jockeys and horses in the race and undermines the integrity of the race.

 The underlying disciplinary action taken against Plaintiff for substance abuse problems was not his first such sanction. Plaintiff had been fined and suspended by racing authorities in Louisiana, Indiana, and Kentucky on various occasions from 1990 through 1999. All of these suspensions were related either to alcohol or drug use, and some involved additional (likely derivative) behavior problems. In most instances, Plaintiff's return from suspension was conditioned on his passing periodic drug and alcohol screening tests for a defined period thereafter. He also underwent multiple drug treatment programs at the behest of the KRC, none of which was successful in the long term.

 Plaintiff admitted that he abused alcohol, cocaine and other controlled substances throughout his racing career and that he was actively abusing alcohol during the fall and winter 2000 racing season, in violation of what was then the latest Agreement with the KRC. Plaintiff also admitted that even the hangover effects of alcohol compromised his ability to perform as a jockey and had caused him to lose races. He recognized the dangers inherent in the sport of horse racing and conceded that the hangover effects alone of alcohol can impair a jockey's timing and cause an accident.

 In September 2000, Plaintiff was charged with driving a motor vehicle while under the influence of alcohol. He had two urine tests that were positive for alcohol while racing at Keeneland Race Track, and the officials there asked him to cease riding for the remainder of the 2000 Keeneland meet. Plaintiff resumed riding in the 2000 Churchill Downs meet. He again failed two urine tests, on November 16 and 17, 2000. Plaintiff admitted that all of these screens correctly showed the presence of alcohol in his system.

 On November 21, 2000, a meeting occurred in the jockey's room and was attended by the President of Churchill Downs Racetrack, a member of the KRC who was also Chief Steward, and seven to eight jockeys. The conversation at the meeting centered on concern for the safety of all involved in racing and the integrity of the races themselves in light of substance abuse problems of jockeys. Following this meeting, Plaintiff and another jockey were permanently ejected from Churchill Downs.

 After filing this suit, Plaintiff was again pulled over by police for driving an automobile while under the influence of alcohol, this time in Evansville, Indiana. He admitted that he had, in fact, consumed alcohol prior to driving at that time.


 The ADA prohibits discrimination against an individual with a disability solely on the basis of that disability, and Title III is specific to places of public accommodation. See 42 U.S.C. § 12101(b). It is presumed, for the purposes of this ruling, that the Plaintiff would be able to show that he is disabled within the meaning of the ADA based on his alcoholism. [FN1] Pursuant both to the statutory language and to the Supreme Court's recent analysis, Churchill Downs is, in this circumstance, a place of public accommodation under Title III. 42 U.S.C. § 12181(7)(L); PGA Tour, Inc. v. Martin, 532 U.S. 661, 676-677 (2001). Defendant was, therefore, prohibited from denying Plaintiff equal access to racing at its tracks on the basis of his disability, unless allowing him to race would fundamentally alter the nature of the "goods, services, facilities, privileges, advantages, or accommodations" provided by it to the public. 42 U.S.C. § 12182(b)(2)(A)(ii).

FN1. The ADA defines "disability" as

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).

 Plaintiff alleges disparate treatment, in violation of the ADA. Plaintiff has produced neither direct nor indirect evidence to support his claim that he was treated differently than similarly situated persons due to his addictions. Pursuant to the McDonnell Douglas burden-shifting analysis, Plaintiff produced sufficient evidence to establish a prima facie case that he was ejected due to his alcoholism. [FN2] Raytheon v. Hernandez, 540 U.S. ___ (2003). The burden then shifted to Defendant to articulate a legitimate, non-discriminatory reason for its action. Defendant produced evidence that its reasons for the ejection were (1) to eliminate the safety threat posed by Plaintiff in his continued attempts to race with alcohol in his system, (2) the lack of reasonable accommodation available with respect to Plaintiff, and (3) the apparent unwillingness of the KRC to enforce the Agreement under which Plaintiff was riding. [FN3] With this evidence, the presumption of discriminatory intent evaporated, and the burden shifted back to Plaintiff to prove that Defendant's proffered reason was pretextual. Plaintiff was unable to do this, and his disparate treatment claim thus fails. Raytheon, 540 U.S. at __.

FN2. In McDonnell Douglas, the Court established a burden‑shifting scheme for discriminatory treatment cases. The Plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its action. The presumption of intentional discrimination disappears if the defendant meets this burden. The plaintiff can still establish discrimination by proving the defendant's proffered reason was pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Raytheon v. Hernandez, 540 U.S. ___ (2003).

FN3. The President of Churchill Downs Racetrack reports that, at the time of the meeting in the jockey's room, he was concerned regarding the apparent lack of interest on the part of the KRC in addressing Plaintiff's ongoing inability to pass urine screens. At that time or shortly thereafter, the KRC entered confidential negotiations with Plaintiff's then attorney regarding his continued licensing in Kentucky. Those negotiations resulted in Plaintiff agreeing to forego pursuit of a jockey license in Kentucky until 2006 (Kentucky Racing licenses expire annually and must be renewed each year), in exchange for which KRC agreed not to suspend Plaintiff's 2000 license. A license suspension in Kentucky would have made it difficult, if not impossible, for Plaintiff to obtain a racing license in any other state.

 Plaintiff further alleges a failure by Defendant to reasonably accommodate him. Plaintiff has the burden of demonstrating that a requested accommodation is both reasonable and necessary. PGA Tour, Inc. v. Martin, 532 U.S. 661, 676-77 (2001). A "reasonable" accommodation is one that is efficacious. See Oconomowic Residential Programs, Inc. v. Milwaukee, 300 F.3d 775, 784 (7th Cir.2002). The accommodation sought by Plaintiff had repeatedly proven not to be efficacious. The Plaintiff requested that he be allowed back onto Defendant's properties with the accommodation that he undergo addiction treatment and submit to drug and alcohol screening. Although the KRC provided this accommodation numerous times in the past, Plaintiff had been racing on Defendant's properties throughout the time he encountered disciplinary problems due to his drug and alcohol use, and Defendant had been apprised of that. It is not a violation of the ADA to refuse to provide an accommodation that had repeatedly proven untenable with respect to Plaintiff. Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990).

 Defendant asserts that Plaintiff was a direct threat to the safety of others which could not be reduced or eliminated by reasonable accommodation or reasonable modification, and this is a complete defense to ADA claims. 42 U.S.C. § 12182(b)(3). Defendant has adduced uncontroverted evidence from the President of Churchill Downs Racetrack, the Chief Steward of the Kentucky Racing Commission, and various jockeys, including Plaintiff, himself, regarding the inherent danger of the sport of thoroughbred racing and the heightened danger created when a jockey rides impaired by alcohol. This evidence, together with Plaintiff's admissions regarding his drug and alcohol use throughout his career in general and his alcohol use and the correctness of the urine drug screens of November 2000, was sufficient basis for Defendant's action—ejection—to eliminate the safety threat posed by Plaintiff. 42 U.S .C. § 12182(b)(3); 29 C.F.R. § 1630.2(r); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir.2000). The Court finds that Plaintiff was a direct threat to the safety of himself and others at the time Defendant permanently ejected him from its properties.


 Having reviewed the evidence in this matter as well as the parties' submissions, the Court finds that there are no material facts in controversy and Defendant is entitled to judgment as a matter of law.

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