Gaylor v. Greenbriar of Dahlonega Shopping Center, Inc.
Filing
54
ORDER granting in part and denying in part Defendant's 36 Motion for Summary Judgment; denying Plaintiff's 39 Motion to Strike ; denying 50 Plaintiff's Motion to Strike affidavit of Robert Simss ; granting in part and denying in part Plaintiff's 25 Motion for Summary Judgment; denying as moot Plaintiff's 29 Motion for Extension of Time to respond to Plaintiff's motion for summary judgment. Specifically, the Court GRANTS Defendant summaryjudgment on P laintiffs claims regarding (1) the absence of above-groundsignage, (2) the absence of marked accessible pathways across vehiculartraffic lanes, and (3) the existence of a discriminatory policy toward thedisabled; and the Court GRANTS Plaintiff summar y judgment on his claimsregarding (1) excessively sloped parking spaces and access aisles, (2) theimproper distribution of parking spaces, and (3) non-compliant curb rampsat two locations. With regard to the claims on which Plaintiff is grantedsummar y judgment, the Court DECLARES that the conditions at Defendants shopping center violate Title III of the ADA and ORDERS Defendant to alterits facilities to bring them into compliance with the law as soon aspracticable. The Court DIRECTS the Clerk to enter final judgment accordingly. The Court will address Plaintiffs entitlement to an award of attorneys fees in accordance with the procedures set out in Local Rule 54.2. Signed by Judge Richard W. Story on 09/27/13. (sk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
GARY GAYLOR,
Plaintiff,
v.
GREENBRIAR OF DAHLONEGA
SHOPPING CENTER, INC.,
Defendant.
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
2:12-CV-00082-RWS
ORDER
This action is before the Court on Plaintiff’s motion for summary
judgment [25], Defendant’s cross-motion for summary judgment [36],
Plaintiff’s motion to strike [39], and Plaintiff’s motion to strike affidavit of
Roberta Sims [50]. For the following reasons, the Court denies Plaintiff’s
motions to strike and grants in part and denies in part both motions for
summary judgment.
Background
On April 9, 2012, Plaintiff Gary Gaylor filed this action against
Defendant Greenbriar of Dahlonega Shopping Center, Inc., alleging violations
of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181
AO 72A
(Rev.8/82)
et seq. Plaintiff alleged that he suffers from multiple sclerosis, which impairs
his ability to walk and requires him to use a cane or a wheelchair. Compl. [1]
¶¶ 4-5. Plaintiff further alleged that Defendant is the owner and/or operator
of a shopping center in Dahlonega, Georgia, which he has visited in the past
and desires to visit in the future, but that he has experienced serious
difficulty in accessing the goods and utilizing the services at the shopping
center due to certain architectural barriers. Id. ¶¶ 6, 10-12.
Specifically, plaintiff alleged that (1) parking was inaccessible due to
excessive slopes, lack of proper access aisles, lack of proper signage, and an
inadequate amount and/or improper distribution of parking spaces
designated as accessible; (2) routes from the parking lot to the sidewalk were
inaccessible due to curb cuts with excessive slopes and excessive side flares,
as well as gaps in pavement, unprotected edges and large bumps in the
concrete that did not provide a smooth transition; (3) routes throughout the
property were inaccessible due to a lack of curb access points; and
(4) payment/service counters at tenant spaces throughout the property were
inaccessible due to excessive height. Id. ¶ 14. Plaintiff also alleged that
Defendant either did not have a policy to assist people with disabilities or
refused to enforce such a policy if it did exist. Id. ¶ 15.
2
AO 72A
(Rev.8/82)
Plaintiff sought a declaration that the shopping center was in violation
of the ADA and an order requiring Defendant (1) “to alter its facilities to
make them accessible to and usable by people with disabilities to the full
extent required by Title III of the ADA,” and (2) “to evaluate and neutralize
its policies and procedures towards persons with disabilities for such
reasonable time so as to allow Defendant to undertake and complete
corrective procedures.” Id., Prayer for Relief. Plaintiff also sought an award
of reasonable attorney’s fees and other expenses of litigation. Id.
During the course of discovery, Plaintiff sought to compel Defendant to
disclose information related to its financial condition on the grounds that
such information was relevant to whether modification of the alleged
architectural barriers was “readily achievable” within the meaning of the
ADA. See 42 U.S.C. § 12181(9). The Court held that the information was
discoverable but that Defendant would not be required to produce the
requested information if it was willing to stipulate that the removal of
architectural barriers as proposed by plaintiff was “financially readily
achievable.” Order of Oct. 23, 2012 [19] at 2. In response, Defendant
stipulated “that the removal of barriers as proposed by Plaintiff is financially
3
AO 72A
(Rev.8/82)
readily achievable,” but not “that all of the measures proposed by Plaintiff are
reasonable or necessary.” Stipulation [21] at 1.
On November 13, 2012, Plaintiff filed a motion for summary judgment
[25]. On the same day, Defendant requested an extension of the discovery
period, which was due to expire on November 15, 2012. During a telephone
conference with the Court regarding the request, Defendant’s counsel
explained that Defendant sought additional time to complete planned
modifications that he contended would bring the shopping center into
compliance with the ADA. Tr. of Nov. 16, 2012, Tel. Conference [40] at 2-3.
Counsel also sought additional time to conduct discovery based on
information regarding Plaintiff’s disability that he said had come to light just
a few days earlier, on November 9, 2012, when he took Plaintiff’s deposition.
Specifically, counsel cited (1) Plaintiff’s testimony that his home has a gravel
driveway and lacks a wheelchair ramp; and (2) a video recording taken after
the deposition, which he said showed Plaintiff getting out of his wheelchair,
putting it in the back of his pickup truck, and walking around his truck
unassisted without difficulty. Id. at 4.
In response, Plaintiff argued that Defendant had failed to comply with
established Court deadlines and was not entitled to a stay or an extension of
4
AO 72A
(Rev.8/82)
the discovery period so that it could make modifications to the shopping
center in an effort to moot Plaintiff’s claims. Id. at 5-8. As for his disability,
Plaintiff argued that the evidence cited by Defendant did not warrant further
discovery because Plaintiff did not contend that his disability made it
impossible for him to walk. Id.
The Court found that Defendant had not acted in a timely fashion so
as to justify a stay or an extension of discovery and therefore denied
Defendant’s request. Id. at 10. However, the Court noted that “to the extent
that matters are remedied, those are matters the Court can take into
account.” Id.
On December 4 and 7, 2012, respectively, Defendant filed its response
in opposition to Plaintiff’s motion for summary judgment [30]1 and a crossmotion for summary judgment [36]. In support of both filings, Defendant
submitted the affidavits of Roberta G. Sims [36-8], Defendant’s sole owner
and only employee, and Diane Moore [36-9], an employee of the Holiday Inn
Express in Dahlonega where Plaintiff’s deposition was taken. Ms. Sims’
affidavit attests to remedial actions taken by Defendant in an effort to comply
1
Defendant also filed a motion for extension of time to file its response [29].
Because the response was timely filed, the Court denies the motion as moot.
5
AO 72A
(Rev.8/82)
with the ADA. First Sims Aff. [36-8] ¶¶ 3-7. Ms. Moore’s affidavit attests to
her observation and video recording of Plaintiff in the parking lot of the hotel
following his deposition and includes as an exhibit the DVD recording that
she made. Moore Aff. [36-9] ¶¶ 3-4 & Ex. 1 [32].
On December 10, 2012, Plaintiff filed a motion to strike the Sims and
Moore affidavits and the DVD recording [39]. Plaintiff argues that the
submission of this evidence violated the Court’s previous Order denying
Defendant’s request for an extension of the discovery period. Plaintiff also
argues that the Court should strike the Moore affidavit and the DVD
recording because Defendant did not timely disclose this information, and
that the Court should strike the Sims affidavit because Defendant’s
submission of evidence of remedial actions taken after the close of discovery
violated Rule 26 and the Court’s scheduling order.
In the alternative,
Plaintiff seeks leave of Court to take limited discovery responding to
Defendant’s newly presented evidence.
On May 23, 2013, Defendant filed the Second Affidavit of Roberta G.
Sims [49]. In her second affidavit, Ms. Sims reiterates certain remedial
measures described in her first affidavit and attests to further remedial
actions Defendant has taken in an effort to bring the shopping center into
6
AO 72A
(Rev.8/82)
compliance with the ADA. Second Sims Aff. [49] ¶¶ 4-8.
Ms. Sims also
states that the Dahlonega City Engineer has informed her that the shopping
center is now in compliance with the ADA. Id. ¶ 9. On May 28, 2013,
Plaintiff filed a motion to strike Ms. Sims’ second affidavit [50]. Plaintiff
argues that the Court should strike the affidavit because it is untimely and
contains conclusory legal statements, impermissible expert opinions,
inadmissible hearsay, and needlessly cumulative information.
In the
alternative, Plaintiff seeks leave to conduct a supplemental inspection of
Defendant’s property if the motion to strike is not granted.
Discussion
I.
Motions to Strike
Rule 12(f) of the Federal Rules of Civil Procedure provides that a court
“may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” However, “[a]n affidavit is
not a pleading subject to a motion to strike.” Argonaut Midwest Ins. Co. v.
McNeilus Truck & Mfg., Inc., No. 1:11-CV-3405-TWT, 2013 WL 489141, at *1
(N.D. Ga. Feb. 8, 2013); see also Southard v. State Farm Fire & Cas. Co., No.
4:11-CV-243, 2013 WL 209224, at *7 (S.D. Ga. Jan. 17, 2013) (“[A] motion to
strike is not the proper procedural vehicle to challenge affidavits.”).
7
AO 72A
(Rev.8/82)
“Rather than striking a document or a portion thereof, it is usually
more appropriate to consider a party’s objections to affidavits which are filed
in support of a motion for summary judgment when ruling on the merits of
a motion for summary judgment.” Haynes v. Twin Cedars Youth & Family
Servs., Inc., No. 5:10-CV-321 (CAR), 2012 WL 895699, at *5 (M.D. Ga. Mar.
15, 2012). “[A] court may strike or disregard the improper portions of an
affidavit submitted in connection with a motion for summary judgment, and
consider the remainder of the testimony or statement.” Id. at *7 (citation
omitted) (emphasis in original).
Accordingly, instead of considering whether to strike the contested
affidavits, the Court will address Plaintiff’s objections in the process of ruling
on the parties’ motions for summary judgment and will disregard any
improper testimony or evidence. Therefore, the Court denies Plaintiff’s
motions to strike.
II.
Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate when “there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court
8
AO 72A
(Rev.8/82)
held that this burden could be met if the movant demonstrates that there is
“an absence of evidence to support the non-moving party's case.” Id. at 325.
At that point, the burden shifts to the non-moving party to go beyond the
pleadings and present specific evidence giving rise to a triable issue. Id. at
324.
In reviewing a motion for summary judgment, the Court must construe
the evidence and all inferences drawn from the evidence in the light most
favorable to the non-moving party. WSB-TV v. Lee, 842 F.2d 1266, 1270
(11th Cir. 1988). Nevertheless, “the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)(emphasis in original).
The Rule 56 standard is not affected by the filing of cross-motions for
summary judgment: “The court must rule on each party’s motion on an
individual and separate basis, determining, for each side, whether a
judgment may be entered in accordance with the Rule 56 standard.” 10A C.
Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 at 33536 (3d ed. 1998). Cross-motions may, however, be probative of the absence
9
AO 72A
(Rev.8/82)
of a factual dispute where they reflect general agreement by the parties as to
the controlling legal theories and material facts. See United States v. Oakley,
744 F.2d 1553, 1555 (11th Cir. 1984).
III.
Defendant’s Motion for Summary Judgment
The Court addresses Defendant’s motion for summary judgment first
because it raises threshold issues of standing and mootness.2 Defendant
argues that Plaintiff lacks standing because the evidence shows that he is not
disabled, and that he is unlikely to patronize Defendant’s shopping center in
the future.
Defendant argues that Plaintiff’s claims are moot because
Defendant has corrected all of the alleged ADA violations at the shopping
center. For the following reasons, the Court concludes that Plaintiff has
standing and that all but one of his claims are not moot.
2
Plaintiff argues that the Court should deny Defendant’s motion for
summary judgment because Defendant failed to file a separate statement of
undisputed material facts, as required by Local Rule 56.1B(1). But Defendant did
file such a statement [36-10], which Plaintiff apparently overlooked. As a result,
instead of responding to the facts set out in Defendant’s separate statement,
Plaintiff has filed a response to the facts set out in Defendant’s brief [43-1].
Nevertheless, since the facts in Defendant’s brief largely track the facts in
Defendant’s separate statement, the Court finds that Plaintiff has substantially
complied with the requirement to file a response to each of Defendant’s undisputed
material facts. LR 56.1B(2), NDGa.
10
AO 72A
(Rev.8/82)
A.
Standing
To establish standing, a plaintiff must demonstrate : (1) an “injury in
fact” that is “concrete and particularized” and “actual or imminent, not
conjectural or hypothetical”; (2) “a causal connection between the conduct and
the injury complained of”; and (3) redressability of the injury by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal
quotation marks omitted). Moreover, a plaintiff seeking injunctive relief
cannot rely only on past injury to satisfy the injury requirement but must
show a likelihood of future harm. City of Los Angeles v. Lyons, 461 U.S. 95,
105 (1983). In the ADA context, “a disabled individual who is currently
deterred from patronizing a public accommodation due to a defendant’s
failure to comply with the ADA has suffered ‘actual injury.’ Similarly, a
plaintiff who is threatened with harm in the future because of existing or
imminently threatened non-compliance with the ADA suffers ‘imminent
injury.’” Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir.
2002).
1.
Plaintiff’s Disability
Defendant argues that Plaintiff cannot demonstrate an actual or
imminent injury because he is not disabled. In support of this argument,
11
AO 72A
(Rev.8/82)
Defendant relies on the affidavit of Diane Moore and the video recording she
made of Plaintiff in the hotel parking lot following his deposition. According
to Ms. Moore, Plaintiff “wheeled himself out to a truck in the parking lot . . . ,
got out of his wheelchair unassisted, squatted down to work on his
wheelchair, picked it up with his hands and placed it in the back of his truck
without difficulty, and then walked in a normal fashion, unassisted, from the
passenger’s side of the truck to the driver’s side door where he got in
unassisted and drove away.” Moore Aff. [36-9] ¶ 4.3 The DVD attached to her
affidavit depicts Plaintiff’s actions as described in the affidavit.4
Plaintiff argues that the Court should exclude this evidence for two
reasons. First, Plaintiff contends that submission of this evidence violated
the Court’s Order of November 16, 2012, denying Defendant’s motion for an
3
Roberta Sims’ first affidavit includes an identical description. First Sims
Aff. [36-8] ¶ 8. However, unlike Ms. Moore, there is no evidence that Ms. Sims
personally observed Plaintiff’s actions in the parking lot. In fact, Defendant’s
counsel stated that Ms. Sims’ deposition was being taken inside the hotel while
Plaintiff was in the parking lot. Tr. of Nov. 16, 2012, Tel. Conference [40] at 4.
Since this portion of Ms. Sims’ affidavit is clearly not based on personal knowledge,
the Court will disregard it. See FED. R. CIV. P. 56(c)(4) (affidavits must be made on
personal knowledge).
4
Citing his deposition testimony that he suffers almost constant pain, and
that his “legs hurt [him] the most,” Plaintiff disputes that he performed these
actions “without difficulty,” or that he walked in a “normal fashion.” Pl.’s Resp. to
Def.’s Statement of Undisputed Facts [43-1] at 5 (quoting Gaylor Dep. [35] at 39).
Otherwise, Plaintiff does not dispute Ms. Moore’s description of his actions. Id.
12
AO 72A
(Rev.8/82)
extension of the discovery period, and that the evidence should therefore be
excluded pursuant to Fed. R. Civ. P. 37(b)(2)(A)(ii). That rule provides in
pertinent part that “[i]f a party . . . fails to obey an order to provide or permit
discovery, . . . the court . . . may . . . prohibit[] the disobedient party from
supporting or opposing designated claims or defenses, or from introducing
designated matters in evidence.” This rule, however, has no application here.
The Court’s November 16 Order did not require Defendant to provide or
permit any discovery; it merely denied Defendant’s request for an extension
of the discovery period. Nor did the November 16 Order place any restriction
on obtaining affidavits or other evidence from third parties. Therefore,
Defendant’s submission of Ms. Moore’s affidavit and the attached recording
did not violate the Court’s November 16 Order.
Second, Plaintiff argues that this evidence should be excluded because
Defendant failed to disclose Ms. Moore’s identity and the existence of the
recording in a timely manner. The Court agrees. Ms. Moore made the
recording on the morning of November 9, 2012, six days before discovery
closed on November 15, 2012. Defendant claims that it did not ask Ms. Moore
to make the recording, that it was made without Defendant’s knowledge, and
13
AO 72A
(Rev.8/82)
that it was not presented to Defendant “until days later.”5 Def.’s Resp. Br. in
Opp’n to Pl.’s Mot. to Strike [44] at 4. Nevertheless, Defendant clearly knew
about the recording some time before the morning of November 16, 2012,
when Defendant’s counsel referred to it during the telephone conference with
the Court. Tr. of Nov. 16, 2012, Tel. Conference [40] at 4.
A party is required to disclose the names of persons “likely to have
discoverable information – along with the subjects of that information – that
the disclosing party may use to support its claims or defenses.” FED. R. CIV.
P. 26(a)(1)(A)(i). In addition, a party must supplement its disclosures and
responses to discovery requests “in a timely manner” if it learns that they are
incomplete in some material respect and the additional information “has not
otherwise been made known to the other parties during the discovery process
or in writing.” FED. R. CIV. P. 26(e)(1)(A). “If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply evidence on a
5
Defendant does not disclose exactly when it received the DVD, nor does
Defendant offer any explanation as to why Ms. Moore, who has no apparent
connection with or interest in this litigation, would take it upon herself to make a
surreptitious recording of Plaintiff.
14
AO 72A
(Rev.8/82)
motion . . . unless the failure was substantially justified or is harmless.” FED.
R. CIV. P. 37(c)(1).
Pursuant to Rules 26(a) and (e), Defendant was required to notify
Plaintiff “in a timely manner” of Ms. Moore’s identity and the information in
her possession on which it might rely.6 Defendant failed to do so. Instead,
Defendant did not identify Ms. Moore until December 4, 2012, when it filed
her affidavit in support of its response to Plaintiff’s motion for summary
judgment. This was at least two-and-a-half weeks after Defendant knew of
Ms. Moore’s identity and the evidence in her possession. The burden is on
Defendant to demonstrate that its failure to disclose Ms. Moore’s identity in
a timely manner was either substantially justified or harmless. See Torres
v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008). Defendant has
failed to even address this issue. Therefore, pursuant to Rule 37(c)(1),
Defendant may not use Ms. Moore’s affidavit or the attached recording in
support of either its own motion for summary judgment or its opposition to
Plaintiff’s motion for summary judgment.
6
In addition to its obligation to disclose persons likely to have discoverable
information, Defendant was also required to supplement its responses to Plaintiff’s
interrogatories, which asked for the identity of persons interviewed or consulted in
connection with, or having knowledge of facts relating to, this litigation. See
Interrog. Nos. 2 & 5 of Pl.’s First Set of Interrogs. to Def. [25-6].
15
AO 72A
(Rev.8/82)
Even if the Court were to consider Ms. Moore’s affidavit, the evidence
is still sufficient to establish that Plaintiff is disabled within the meaning of
the ADA.
Under the ADA, “disability” means “a physical or mental
impairment that substantially limits one or more major life activities.” 42
U.S.C. § 12102(1)(A). Major life activities include “walking,” as well as the
“operation of a major bodily function,” including the “neurological” function.
Id. § 12102(2)(A) & (B). An individual is substantially limited “when the
individual’s important life activities are restricted as to the conditions,
manner, or duration under which they can be performed in comparison to
most people.”
28 C.F.R., pt. 36, App. C.
In determining whether an
individual is substantially limited, relevant considerations include “the
difficulty, effort, or time required to perform a major life activity; pain
experienced when performing a major life activity; the length of time a major
life activity can be performed; and/or the way an impairment affects the
operation of a major bodily function.” 29 C.F.R. § 1630.2(j)(4)(ii).7 “An
7
This is part of the Equal Employment Opportunity Commission’s (EEOC)
definition of “substantially limits” under Title I of the ADA. Although not
controlling in this case, the EEOC’s interpretation is due substantial weight. See
Price v. Nat’l Bd. of Med. Exam’rs, 966 F. Supp. 419, 425 n.2 (S.D. W.Va. 1997)
(“Congress clearly intended for the term ‘disability’ (and, therefore, the phrase
‘substantially limits’) to have a uniform meaning throughout the ADA. Accordingly,
(continued...)
16
AO 72A
(Rev.8/82)
impairment need not prevent, or significantly or severely restrict, the
individual from performing a major life activity to be considered substantially
limiting.” Id. § 1630.2(j)(1)(ii).
In this case, it is undisputed that Plaintiff suffers from multiple
sclerosis, a condition that, “at a minimum, . . . substantially limits
neurological function.” Id. § 1630.2(j)(3)(iii). In his deposition, Plaintiff
explained that as a result of his condition, he “live[s] in pain,” mostly in his
legs, which makes it difficult, although not impossible, for him to walk.
Gaylor Dep. [35] at 39. Plaintiff acknowledged that he was able to stand and
walk for brief periods next to his vehicle while assembling or disassembling
his wheelchair.
Id. at 34-35.
Thus, Ms. Moore’s evidence is entirely
consistent with Plaintiff’s own description of his physical limitations.
Plaintiff does not contend that he is unable to walk, only that his ability to
walk is substantially limited because of the pain caused by his multiple
sclerosis. Nothing in Ms. Moore’s testimony or in Plaintiff’s actions as
depicted in her recording contradicts Plaintiff’s contention or establishes that
Plaintiff is not substantially limited in his ability to walk. Defendant also
7
(...continued)
wherever possible, the Court must define the phrase ‘substantially limits’ in a
manner consistent with each of the agencies’ interpretations.”).
17
AO 72A
(Rev.8/82)
contends that Plaintiff’s deposition testimony that his home has a gravel
driveway and lacks a wheelchair ramp shows that he is not disabled. Again,
however, this evidence is entirely consistent with Plaintiff’s own description
of his physical limitations and does not show that his ability to walk is not
substantially limited.
2.
Likelihood of Return
Defendant argues that Plaintiff cannot demonstrate an actual or
imminent injury or that any injury will be redressed by a favorable decision
because he has failed to show that he is likely to return to the shopping
center. In determining whether a plaintiff’s likelihood of returning to a
particular establishment is sufficient to confer standing, courts have
generally focused on four factors: “(1) the proximity of the place of public
accommodation to plaintiff’s residence, (2) plaintiff’s past patronage of
defendant’s business, (3) the definitiveness of plaintiff’s plan to return, and
(4) the plaintiff’s frequency of travel near defendant.” Norkunas v. Seahorse
NB, LLC, 720 F. Supp. 2d 1313, 1316 (M.D. Fla. 2010), aff’d, 444 F. App’x 412
(11th Cir. 2011) (quoting Fox v. Morris Jupiter Assocs., No. 05-80689-CIV,
2007 WL 2819522, at *9 (S.D. Fla. Sept. 21, 2007)).
18
AO 72A
(Rev.8/82)
With regard to these factors, Plaintiff cites evidence that the shopping
center is 14.2 miles from his home in Cleveland, Georgia, and states that he
has visited the shopping center numerous times, with his first visit occurring
on or about October 9, 2011, and his most recent visits on October 31 and
November 8, 2012. Gaylor Aff. [25-2] ¶ 7. Plaintiff also states that he plans
to return to the shopping center. Id. ¶ 8. In addition to normal, everyday
shopping, Plaintiff states that he is working with a sales associate at the
Sears store there to purchase a water heater for his home. Id. Independent
of his intent to return to the shopping center as a patron, Plaintiff states that
he also plans to return to the property as an ADA tester to determine
whether the barriers to access identified in his complaint have been
remedied. Id. ¶ 9. Finally, with regard to his frequency of travel near the
shopping center, Plaintiff states that he routinely travels to Atlanta for
medical treatment of his multiple sclerosis and passes by the shopping center
often. Id. ¶ 6. In addition, Plaintiff states that he and his wife like to go to
the summer festivals and events in downtown Dahlonega and often shop at
the shopping center when they do so. Id.
In support of its contention that Plaintiff is unlikely to return to the
shopping center, Defendant argues that it “is quite a distance to travel when
19
AO 72A
(Rev.8/82)
there are closer business establishments that could satisfy the Plaintiff’s
needs near his residence in White County.” Def.’s Br. in Supp. of Mot. for
Summ. J. [36-1] at 8-9. However, Defendant offers no evidence to support its
contention that there are business establishments nearer Plaintiff’s home
that could satisfy his needs. In addition, Plaintiff points out that the only
Sears store within fifteen miles of his home is at Defendant’s property. Pl.’s
Resp. in Opp’n to Def.’s Mot. for Summ. J. [43] at 11 n.8.
Defendant also cites Plaintiff’s testimony that he can only recall
visiting the shopping center about six times, and that one of those times was
merely to buy a single pack of cigarettes and check on the property for
purposes of this litigation. Defendant argues that “[a] visit to a defendant he
has sued in a neighboring county for a single pack of cigarettes, and keeping
the receipt to prove he did so, demonstrates action o[f] the plaintiff consistent
with an attempt to manufacture standing.” Def.’s Br. in Supp. of Mot. for
Summ. J. [36-1] at 9. However, not only does this argument ignore Plaintiff’s
other visits to the shopping center as a patron, it is also contrary to wellestablished authority recognizing that visits to a property as a tester to
determine whether it has been made ADA compliant can serve as a legitimate
basis for establishing standing. See, e.g., Norkunas, 720 F. Supp. 2d at 1315
20
AO 72A
(Rev.8/82)
(noting that “[n]umerous courts in the Middle District of Florida have applied
the Eleventh Circuit’s rationale [recognizing tester standing under the Fair
Housing Act] to confer tester standing under the ADA as well”); see also
Harty v. Simon Prop. Grp., L.P., 428 F. App’x 69, 71 (2d Cir. 2011) (allegation
that plaintiff “plans to return [to shopping mall] both as a patron . . . and as
a tester ‘to determine whether the property has been made ADA compliant’”
was sufficient to establish standing).
Finally, Defendant argues that Plaintiff’s litigation history undermines
the credibility of his claim that he intends to return to the shopping center.
Defendant cites evidence that within the past three years Plaintiff has filed
some fifty-eight ADA lawsuits in Georgia, Florida, Tennessee, and Missouri.
Defendant argues that “[b]ecause of his extensive litigation history, any of
Plaintiff’s professed statements that he will return to all of the properties he
has sued are implausible.” Def.’s Br. in Supp. of Mot. for Summ. J. at 7.
The Court “must be particularly cautious about [making] credibility
determinations that rely on a plaintiff’s past ADA litigation.” D’Lil v. Best
Western Encina Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir. 2008). As the
D’Lil court noted, “most ADA suits are brought by a small number of private
plaintiffs who view themselves as champions of the disabled . . . . For the
21
AO 72A
(Rev.8/82)
ADA to yield its promise of equal access for the disabled, it may indeed be
necessary and desirable for committed individuals to bring serial litigation
advancing the time when public accommodations will be compliant with the
ADA.” Id. (quotation omitted). The evidence suggests that Plaintiff is such
a committed individual. According to Plaintiff, he has “never received a dime
from any lawsuit.” Gaylor Dep. [35] at 23. Instead, he brings these actions
“because I want any place that I’m hindered from using my wheelchair or it
hurts because of unnecessary things in parking lots or inside stores that, you
know, I can’t have the same privilege to shop as another person.” Id. at 70.
Even assuming that Plaintiff’s history of bringing ADA suits is
relevant, the Court finds nothing in that history that undermines Plaintiff’s
credibility. As evidenced by the complaints attached to Defendant’s motion
for summary judgment, Plaintiff’s previous ADA lawsuits were all brought
against shopping centers and other public accommodations in north Georgia
and the Atlanta metro area; Chattanooga and Knoxville, Tennessee; and St.
Louis, Missouri. See Def.’s Mot. for Summ. J., Ex. A [36-2 through 36-7].8
According to the complaints, all of these locations are either in the general
8
Plaintiff also filed two ADA suits against a former employer in Florida. Id.
Since these suits did not involve access to public accommodations, they have no
relevance to the current discussion.
22
AO 72A
(Rev.8/82)
vicinity of plaintiff’s residence, or where he travels regularly to receive
medical treatment (Atlanta), visit his son (St. Louis), or vacation with his
wife (Chattanooga and Knoxville). Id. Therefore, contrary to Defendant’s
argument, it is not implausible that Plaintiff would return to all of these
places of public accommodation in the future.
Defendant relies on several district court cases in which the plaintiff
was found to lack standing based in part on his litigation history. These
cases, however, are all distinguishable. See Harris v. Stonecrest Care Auto
Ctr, LLC, 472 F. Supp. 2d 1208, 1211-14 (S.D. Cal. 2007) (finding plaintiff
unlikely to return to gas station located 600 miles from his home that he had
visited only once where there was no evidence that he was likely to be in the
vicinity again in the future); Molski v. Kahn Winery, 405 F. Supp. 2d 1160,
1163-65 (C.D. Cal. 2005) (finding plaintiff unlikely to return to winery more
than 100 miles from his home that he had visited only once more than a year
prior to filing suit where he demonstrated lack of preference for its goods and
services and had been previously declared a vexatious litigant); Brother v.
Tiger Partner, LLC, 331 F. Supp. 2d 1368, 1373 (M.D. Fla. 2004) (finding
plaintiff unlikely to return to a hotel located 280 miles from his home that he
had visited only once “by chance” where he did not stay at the hotel on the
23
AO 72A
(Rev.8/82)
night in question and had not attempted to return to the hotel since that
time, there were “countless” other hotels nearer his intended destination, and
he did not make a reservation at the hotel until after he had filed his
lawsuit).9
By contrast, the evidence in this case strongly supports the credibility
of Plaintiff’s stated intention to return to Defendant’s shopping center.
Plaintiff has demonstrated a history of visits to Dahlonega and specifically
to Defendant’s shopping center, together with the likelihood of his returning
frequently to the area both to attend festivals and other events and while
traveling to Atlanta for medical treatment. He has also described a definite
plan to purchase goods from one of the stores at Defendant’s shopping center.
All of this evidence bolsters the credibility of Plaintiff’s stated intention to
return and establishes that Plaintiff has standing to bring this suit.
9
Other cases cited by Defendant do not even address the issue of standing.
See Doran v. Del Taco, Inc., 373 F. Supp. 2d 1028, 1033-34 (C.D. Cal. 2005), vacated
and remanded, 237 F. App’x 148 (9th Cir. 2007) (holding pre-litigation warning and
opportunity to cure prerequisite to recovering attorney’s fees under ADA); Molski
v. Mandarin Touch Rest., 347 F. Supp. 2d 860, 864-65 (C.D. Cal. 2004), aff’d, 500
F.3d 1047 (9th Cir. 2007) (declaring plaintiff a vexatious litigant after he filed
approximately 400 ADA lawsuits making nearly identical allegations, including
thirteen separate complaints for essentially identical injuries allegedly suffered
over a five-day period).
24
AO 72A
(Rev.8/82)
B.
Mootness
In his motion for summary judgment, Plaintiff identified nine
architectural barriers that allegedly violate the ADA: (1) an inadequate
number of compliant parking spaces designated for the disabled; (2) the
absence of compliant access aisles serving the parking spaces, (3) the absence
of above-ground signage identifying the parking spaces, (4) the absence of
van-accessible parking spaces, (5) the improper distribution of the parking
spaces, (6) excessively sloped parking spaces and access aisles, (7) the absence
of a marked accessible pathway between the parking spaces and the curb cuts
serving the sidewalk to store entrances, and (8-9) non-compliant curb ramps
at two locations. Br. in Supp. of Pl.’s Mot. for Summ. J. [25-1] at 16-18.
Defendant contends that it has voluntarily undertaken measures to remedy
these alleged ADA violations, and that Plaintiff’s claims are therefore moot.
In support of its argument, Defendant relies on the affidavit of Roberta
Sims filed with its motion for summary judgment. In that affidavit, Ms. Sims
states that Defendant now has (1) seven handicapped-accessible parking
spaces in its parking lot, (2) an adjacent space next to the handicapped vanaccessible space to permit a wheelchair ramp to unload handicapped persons,
and (3) seven standing above-ground handicapped parking signs. First Sims
25
AO 72A
(Rev.8/82)
Aff. [36-8] ¶¶ 3-5.
In addition, Ms. Sims states that Defendant (1) has
redone the curb ramps so as to make them even smoother to transition from
the parking lot to the covered sidewalk than they were before, and (2) is
painting marks on the parking lot surface to designate additional handicap
space for travel. Id. ¶¶ 6-7.
Approximately five-and-a-half months later, Defendant filed Ms. Sims’
second affidavit [49]. In that affidavit, in addition to the remedial measures
she previously described,10 Ms. Sims states that Defendant has (1) added
parking spaces that are van accessible with the proper signage indicating van
accessibility, and (2) properly distributed the handicapped accessible parking
spaces to allow the most accessible distance to each storefront in the shopping
center. Second Sims Aff. [49] ¶¶ 4-5. Finally, Ms. Sims states that she has
spoken with the Dahlonega City Engineer, and that he has informed her that
the shopping center is now in compliance with the ADA. Id. ¶ 9.
Plaintiff argues that the Court should exclude both of Ms. Sims’
affidavits because, by submitting evidence of remedial measures undertaken
after the close of discovery, Defendant is attempting to circumvent discovery
10
Portions of Ms. Sims’ second affidavit merely restate, in nearly identical
language, the remedial measures described in her first affidavit. See First Sims
Aff. [36-8] ¶¶ 6-7; Second Sims Aff. [49] ¶¶ 6-7.
26
AO 72A
(Rev.8/82)
deadlines in violation of Rule 26, the Court’s scheduling order, and the
Court’s Order of November 16, 2012, denying Defendant’s request for an
extension of the discovery period. The Court disagrees. Plaintiff cites no
authority that a defendant is precluded from taking measures to remedy
alleged ADA violations after the discovery period has ended, and the Court
is aware of none. Nor is the Court aware of any reason why Defendant
should be prevented from submitting evidence of such remedial measures in
support of a motion for summary judgment.
Plaintiff also argues that the Court should exclude Ms. Sims’ second
affidavit because, among other things, it is untimely and includes
inadmissible hearsay. The Court agrees. First, the affidavit was filed nearly
six months after expiration of the deadline for Defendant to submit materials
either in support of its motion for summary judgment or in opposition to
Plaintiff’s motion for summary judgment. See LR 7.1B & C, 56.1D, NDGa.
The Local Rules prohibit the parties from filing supplemental briefs or
materials in connection with motions for summary judgment except upon
order of the Court. LR 56.1A, NDGa. Defendant did not seek leave of court
to file Ms. Sims’ second affidavit. Therefore, the Court will not consider it.
In addition, Ms. Sims’ assertion that the Dahlonega City Engineer informed
27
AO 72A
(Rev.8/82)
her that the shopping center is now in compliance with the ADA is
inadmissible hearsay and will not be considered for that reason as well.
Finally, Plaintiff argues that if the Court considers Ms. Sims’ first
affidavit, it should also consider the supplemental report of Plaintiff’s expert,
Ryan W. McKee, regarding his site inspection of the shopping center
conducted on December 8, 2012, after the affidavit was filed [41-2].
Defendant contends that the Court should not consider the supplemental
report because Mr. McKee conducted the inspection after the expiration of
discovery. The Court concludes that it is appropriate to consider Mr. McKee’s
supplemental report. First, Defendant raised no objection with the Court
when Plaintiff’s counsel notified it that he intended to have his expert reinspect the property.
Furthermore, after receiving Ms. Sims’ affidavit
claiming that at least some of the alleged ADA violations had been remedied,
it was not improper for Plaintiff to have his expert re-inspect the property to
assess the validity of that claim so that he could adequately respond to
Defendant’s motion for summary judgment. Finally, since the Court will
consider Defendant’s evidence that the alleged ADA violations were remedied
after the close of discovery, it is only fair that the Court also consider
Plaintiff’s expert’s post-discovery assessment of that evidence.
28
AO 72A
(Rev.8/82)
After considering both Ms. Sims’ first affidavit and Mr. McKee’s
supplemental report, the Court finds that the only claim that has been
rendered moot by Defendant’s remediation efforts is Plaintiff’s claim
regarding the absence of above-ground mounted signage (Barrier 3). Ms.
Sims states that the parking lot now has seven standing above-ground
handicapped parking signs, and Mr. McKee confirms that this alleged ADA
violation has been remedied. First Sims Aff. [36-8] ¶ 5; Supplemental Expert
Report [41-2] at 3. Therefore, Plaintiff’s claim based on this alleged violation
is moot.
With regard to the other eight barriers alleged by Plaintiff, the evidence
does not establish that they have been remedied. Specifically, with regard to
the parking lot’s alleged lack of the required seven parking spaces reserved
for the disabled (Barrier 1), although Ms. Sims states that the parking lot
now has seven handicapped-accessible parking spaces, Mr. McKee’s
supplemental report indicates that three of the seven spaces continue to have
excessive slopes or cross-slopes and therefore are not ADA compliant. First
Sims Aff. [36-8] ¶ 3; Supplemental Expert Report [41-2] at 3, 6. With regard
to the alleged lack of access aisles serving the parking spaces reserved for the
disabled (Barrier 2), although access aisles have been added, Mr. McKee
29
AO 72A
(Rev.8/82)
reports that three of the seven aisles have excessive slopes and/or cross-slopes
and are therefore not ADA compliant. Supplemental Expert Report [41-2] at
3, 6-7. With regard to the alleged absence of a van-accessible parking space
(Barrier 4), although Defendant has added a van-accessible parking space,
Mr. McKee reports that the space is not ADA compliant because the asphalt
is broken, in disrepair, and contains impermissible changes in level. Id. at 3,
6, 8. With regard to two curb ramps allegedly having excessive slopes
(Barriers 8 and 9), although Defendant installed two new curb ramps, Mr.
McKee reports that neither is ADA compliant because one has excessive flare
slopes while the other lacks a level landing. Id. at 3, 6, 19-21. Finally, with
regard to the alleged improper distribution of the parking spaces reserved for
the disabled (Barrier 5), the excessive slopes and/or cross-slopes in three of
the parking spaces and access aisles (Barrier 6), and the absence of a striped
path of travel between the parking spaces and the curb cuts (Barrier 7), there
is no evidence that Defendant attempted to remedy these alleged violations.
Id. at 3, 4, 6, 9-18. Therefore, Plaintiff’s claims based on Barriers 1-2 and 4-9
are not moot.
30
AO 72A
(Rev.8/82)
IV.
Plaintiff’s Motion for Summary Judgment
Having determined that Plaintiff has standing and that his claims
based on eight of the nine alleged architectural barriers are not moot, the
Court turns to Plaintiff’s motion for summary judgment. Plaintiff seeks
summary judgment both on his claims that the alleged architectural barriers
violate the ADA and on his claim that Defendant has a discriminatory policy
that violates the ADA. The Court first addresses the claims based on alleged
architectural barriers and then the policy claim.
A.
Architectural Barriers
With regard to facilities that existed prior to January 26, 1992, Title III
of the ADA requires the owner of a public accommodation “to remove
architectural barriers . . . where such removal is readily achievable.” 42
U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. §§ 36.304(a) & 36.508. With regard to
alterations to existing facilities after January 26, 1992, and new construction
completed after January 26, 1993, Title III requires an owner to make the
facility “readily accessible to and usable by individuals with disabilities.” 42
U.S.C. § 12183(a); 28 C.F.R. §§ 36.401(a) & 36.402(a). New construction need
not be readily accessible if an owner can demonstrate that it is “structurally
impracticable.” 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.401(c). Alterations
31
AO 72A
(Rev.8/82)
must be readily accessible only “to the maximum extent feasible.” 42 U.S.C.
§ 12183(a)(2); 28 C.F.R. § 36.402(c).
In addition, new construction and alterations must comply with either
the 1991 ADA Standards for Accessible Design (“1991 Standards”), 28 C.F.R.
pt. 36, App. D; or the 2010 ADA Standards for Accessible Design (“2010
Standards”), which consist of the 2004 ADA Accessibility Guidelines
(“ADAAG”), 36 C.F.R. pt. 1191, Apps. B & D, and the requirements contained
in 28 C.F.R. §§ 36.401 through 36.406. 28 C.F.R. §§ 36.104 & 36.406(a).11
Existing facilities are not required to comply with the Standards, but they
serve as a guide in determining whether a condition in an existing facility
constitutes a barrier that must be removed if removal is readily achievable.
Gathright-Dietrich v. Atlanta Landmarks, Inc., 435 F. Supp. 2d 1217, 1226
(N.D. Ga. 2005), aff’d, 452 F.3d 1269 (11th Cir. 2006). In making this
determination, the court asks whether, under the circumstances of the
particular case, the alleged barrier actually or effectively precludes a
11
Whether compliance with the 1991 or the 2010 Standards is required
depends on the date an owner completed its application for a building permit, or the
date construction began if no permit was required. If before September 15, 2010,
compliance with the 1991 Standards is required. Id. § 36.406(a)(1). If between
September 15, 2010, and March 15, 2012, compliance with either the 1991
Standards or the 2010 Standards is required. Id. § 36.406(a)(2). If on or after
March 15, 2012, compliance with the 2010 Standards is required. Id. § 36.406(a)(3).
32
AO 72A
(Rev.8/82)
handicapped individual from using an existing facility on terms sufficiently
comparable to non-disabled individuals. Id.
1.
Barriers 1, 2, 4, and 6
Barriers 1, 2, 4 and 6 are all based on allegedly excessive slopes or
cross-slopes or abrupt changes in level in parking spaces designated for the
disabled and access aisles serving those spaces. See Pl.’s Statement of
Additional Facts [43-2] Nos. 64-69, 73-74.12 Plaintiff’s expert measured the
slopes and found that three of the non-van-accessible parking spaces, the
newly added van-accessible parking space, and three of the access aisles all
violated ADAAG § 502.4, which permits slopes no steeper than 1:48 (2.1%).
Expert Report [25-10] at 7, 15-17; Supplemental Expert Report [41-2] at 3, 68, 13-16; see also 1991 Standards § 4.6.3 (slopes in parking spaces and access
aisles may not exceed 1:50 or 2%). Plaintiff’s expert further found that these
violations could be corrected in a readily achievable manner by re-paving the
parking spaces and access aisles and the immediately adjacent areas to
smooth the transition. Expert Report [25-10] at 3, 15; Supplemental Expert
Report [41-2] at 3, 6-8, 13.
12
Defendant filed no response to Plaintiff’s Statement of Additional Facts.
Therefore, they are deemed admitted. LR 56.1B(3), NDGa.
33
AO 72A
(Rev.8/82)
The parties did not address whether the slopes in the parking lot relate
to an existing facility, alterations, or new construction. The evidence shows
that the grade of the parking lot has not been changed since the shopping
center was built in 1981. Sims Dep. [38] at 59-60. The Court concludes that
the slopes relate to an existing facility, and that compliance with the
Standards is therefore not required. Gathright-Dietrich, 435 F. Supp. 2d at
1226. Nevertheless, using the Standards as a guide, the Court finds the
evidence sufficient to establish that the slopes constitute barriers that must
be removed if removal is readily achievable. Plaintiff’s expert measured
slopes of 2.9%, 3.5%, 4.6%, and 6.2% in the designated parking spaces and
access aisles of Defendant’s parking lot, while the Standards permit a
maximum slope of no more than 2.1%. Supplemental Expert Report [41-2] at
13-16; ADAAG § 504.2; 1991 Standards § 4.6.3. These slopes are sufficiently
in excess of the maximum permitted under the Standards to establish that
they actually or effectively preclude disabled individuals from using the
existing parking lot on terms sufficiently comparable to non-disabled
individuals and therefore constitute barriers.
Defendant does not dispute the measurements made by Plaintiff’s
expert, or that the slopes exceed the maximum permitted under the
34
AO 72A
(Rev.8/82)
Standards. Nor does Defendant contend that the recommended re-paving to
correct these excessive slopes is not readily achievable. Nevertheless, despite
its professed desire to make the shopping center ADA compliant, Defendant
has made no effort to remedy the excessive slopes in the designated parking
spaces and access aisles. Instead, Defendant contends that the recommended
re-paving is unnecessary “due to the level nature of the parking lot and after
voluntarily restriping parking spaces.” Def.’s Resps. to Pl.’s Statement of
Undisputed Material Facts [31] No. 52.
The Court concludes that Plaintiff is entitled to summary judgment on
these claims. Defendant’s re-striping of the parking spaces is irrelevant
because that did nothing to address the excessive slopes. As for the parking
lot being level, Defendant relies solely on the following description by Ms.
Sims in her deposition: “It’s not a slope, no more than where the water would
barely run off of it, because there’s no slope to it. It’s level. It’s flat as this
tabletop.” Sims Dep. [38] at 45. Ms. Sims, however, acknowledged that she
had not measured the slopes, and that she was basing her description simply
on “[l]ooking at it with my natural eyes.” Id. at 48. In light of Plaintiff’s
expert’s precise measurements, Ms. Sims’ ballpark “guesstimate” is not
sufficient to create a genuine dispute as to whether the slopes exceed the
35
AO 72A
(Rev.8/82)
maximum permitted under the Standards. Since the evidence establishes
that these excessive slopes constitute barriers to access by the disabled, and
Defendant does not dispute that removal of these barriers is readily
achievable, the ADA mandates that they be removed.
2.
Barrier 5
Barrier 5 concerns the alleged improper distribution of parking spaces
designated for the disabled. See Pl.’s Statement of Additional Facts [43-2]
Nos. 70-72. This barrier was not addressed by Defendant’s renovations
following the close of discovery. Id.; First Sims Aff. [36-8]. Plaintiff’s expert
found that a row of shops on the northeast side of the property had no
parking spaces designated for the disabled facing the storefronts, and that
there was no accessible path to that side of the shopping center from the
existing accessible parking spaces further across the parking lot. Expert
Report [25-10] at 3-4, 7, 12; Supplemental Expert Report [41-2] at 3-4, 6, 9.
Plaintiff’s expert found that this condition violated ADAAG § 208.3.1, which
requires that where parking serves more than one accessible entrance,
accessible parking spaces must be dispersed and located on the shortest
accessible route to the accessible entrances. Id.; see also 1991 Standards
§ 4.6.2 (imposing same requirement). Plaintiff’s expert further found that
36
AO 72A
(Rev.8/82)
this violation could be corrected in a readily achievable manner by modifying
the existing parking facility so that the accessible spaces are evenly
distributed and removing the unequal access to the stores on the northeast
side. Expert Report [25-10] at 3, 12-14; Supplemental Expert Report [41-2]
at 9-12.
The parties did not address whether this challenged condition relates
to an existing facility, new construction, or alterations. At her deposition on
November 9, 2012, Ms. Sims testified that the parking lot had been re-striped
within the last two years. Sims Dep. [38] at 39. Since the distribution of
parking spaces designated for the disabled relates solely to the marking of
certain spaces to indicate that they are reserved for parking by disabled
individuals, the Court concludes that the current distribution of designated
parking spaces relates to an alteration that occurred after November 9, 2010.
Therefore, the distribution of parking spaces designated for the disabled must
comply with either the 1991 Standards or the 2010 Standards. 28 C.F.R.
§ 36.406(a)(2).
As noted above, both the 1991 Standards and the 2010 Standards
establish the same requirement. Defendant does not dispute that there are
no accessible parking spaces facing the northeast row of shops and no
37
AO 72A
(Rev.8/82)
accessible pathway to those shops from existing accessible parking spaces, or
that this condition does not comply with the Standards. Def.’s Resps. to Pl.’s
Statement of Undisputed Material Facts [31] No. 32; Pl.’s Statement of
Additional Facts [43-2] No. 71. Nor does Defendant contend that it has
complied with the Standards to the maximum extent feasible. See 28 C.F.R.
§ 36.402(a) (alterations must be readily accessible to maximum extent
feasible). Therefore, Plaintiff is entitled to summary judgment on this claim.
3.
Barrier 7
Barrier 7 concerns the alleged absence of a striped pathway between
parking spaces reserved for the disabled and the curb cuts serving the
sidewalk to the store entrances. See Pl.’s Statement of Additional Facts [432] Nos. 75-76.
This alleged barrier was not addressed by Defendant’s
renovations following the close of discovery. Id.; First Sims Aff. [36-8].
Plaintiff’s expert found that the pathway between accessible parking spaces
and curb ramp access points was not marked even though the route crossed
vehicular traffic lanes. Expert Report [25-10] at 7, 18; Supplemental Expert
Report [41-2] at 3, 6, 17-18. Plaintiff’s expert found that this condition
violated an advisory note to ADAAG § 502.3, which states in pertinent part:
“In parking facilities where the accessible route must cross vehicular traffic
38
AO 72A
(Rev.8/82)
lanes, marked crossings enhance pedestrian safety, particularly for people
using wheelchairs and other mobility aids.” Id.; ADAAG Advisory 502.3
Access Aisle, 36 C.F.R. pt. 1191, App. D. Plaintiff’s expert further found that
this violation could be corrected in a readily achievable manner by striping
the pathways from accessible parking spaces across vehicular traffic lanes to
curb ramp access points. Expert Report [25-10] at 3, 18; Supplemental
Expert Report [41-2] at 17.
The Court concludes that Defendant, rather than Plaintiff, is entitled
to summary judgment on this claim. Since this condition, like the proper
distribution of parking spaces, solely concerns the striping of the surface of
the parking lot, it relates to an alteration that occurred some time after
November 9, 2010. Therefore, it must comply with either the 1991 Standards
or the 2010 Standards. 28 C.F.R. § 36.406(a)(2). Plaintiff has not cited any
provision of the 1991 Standards regarding this issue. Instead, Plaintiff relies
solely on an alleged violation of an advisory note to ADAAG § 502.3, which is
part of the 2010 Standards. The applicable regulations, however, expressly
state that such advisory notes “do not establish enforceable requirements.”
28 C.F.R. § 36.406(b). Since Plaintiff has not established that there is an
39
AO 72A
(Rev.8/82)
enforceable requirement to stripe access paths that cross vehicular traffic
lanes, Defendant is entitled to summary judgment on this claim.
4.
Barriers 8 and 9
Barriers 8 and 9 concern two allegedly non-compliant curb ramps. See
Pl.’s Statement of Additional Facts [43-2] Nos. 77-81. Plaintiff’s expert
initially found that the two curb ramps had excessive slopes. Expert Report
[25-11] at 19-20. Upon reinspection following Defendant’s installation of two
new curb ramps, Plaintiff’s expert found that both ramps still failed to comply
with ADA requirements. Supplemental Expert Report [41-2] at 3, 6, 19-21.
Specifically, with regard to the new curb ramp at the furniture store,
Plaintiff’s expert found that it had excessive flare slopes and that the door
swing from the store’s entry door impeded upon the landing. Id. at 19-20.
With regard to the new curb ramp at J&J Foods, Plaintiff’s expert found that
it lacked a level landing, with the slope increasing all the way to the door. Id.
at 21. Plaintiff’s expert found that these conditions violated ADAAG §§ 406.1,
406.3, and 406.4, which require that curb ramp flares not be steeper than
1:10, and that landings be provided at the tops of curb ramps. Id. Plaintiff’s
expert further found that these violations could be corrected in a readily
achievable manner by demolishing the existing curb ramps, installing new
40
AO 72A
(Rev.8/82)
curb ramps compliant with the regulations, and moving the ramps’ location
to an area where the landing will not be impeded. Supplemental Expert
Report [41-2] at 19, 21.
The evidence shows that the two new curb ramps were installed in
October 2012. Sims Dep. [38] at 31. Therefore, they must comply with the
2010 Standards. 28 C.F.R. § 36.406(a)(3). Defendant does not dispute that
the curb ramps do not comply with the 2010 Standards. Pl.’s Statement of
Additional Facts [43-2] Nos. 77-81. Nor does Defendant contend that it has
complied with the Standards to the maximum extent feasible. See 28 C.F.R.
§ 36.402(a) (alterations must be readily accessible to maximum extent
feasible). Therefore, Plaintiff is entitled to summary judgment on these
claims.
B.
Discriminatory Policy
Plaintiff contends that it is also entitled to summary judgment on its
claim that Defendant has a discriminatory policy toward the disabled. The
only allegation in the complaint relating to this claim states: “Defendant
either does not have a policy to assist people with disabilities or refuses to
enforce such a policy if it exists.” Compl. ¶ 15. In its motion for summary
judgment, Plaintiff relies on the following undisputed facts in support of this
41
AO 72A
(Rev.8/82)
claim: (1) Defendant has no official policy regarding how disabled patrons are
treated; (2) Defendant has an unofficial policy of helping people who need it;
(3) Defendant has not written down this unofficial policy or communicated it
to the tenants of the property; (4) Defendant does not provide any training to
its tenants or employees regarding the accommodation of disabled persons;
(5) Defendant has placed no individual in charge of making sure its property
complies with the ADA; and (6) Defendant presumed that an inspection by
the City in 1981 – more than a decade before the ADA became law – ensured
compliance with the ADA. Pl.’s Statement of Undisputed Material Facts [251] Nos. 60-63; Def.’s Resp. to Pl.’s Statement of Undisputed Material Facts
[31] Nos. 60-63.
The Court concludes that these facts do not establish a violation of the
ADA, and that Defendant, rather than Plaintiff, is therefore entitled to
summary judgment on this claim.13 Plaintiff’s reliance on broad statements
by Congress and the courts regarding the nature of discrimination against
the disabled and the goals of the ADA is misplaced. See Br. in Supp. of Pl.’s
13
Defendant did not specifically address this claim in its motion for summary
judgment. However, it moved for summary judgment “with regard to all of the
Plaintiff’s claims.” Def.’s Mot. for Summ. J. [36] at 1 (emphasis added). Since the
undisputed facts establish that Defendant, rather than Plaintiff, is entitled to
judgment on this claim, entry of summary judgment for Defendant is appropriate.
42
AO 72A
(Rev.8/82)
Mot. for Summ. J. [25-1] at 15. None of these statements indicates that it is
violation of the ADA for the owner of a public accommodation not to have an
official policy regarding the treatment of disabled persons, or to have an
unofficial policy of helping people who need it, regardless of whether the
policy is written down or communicated to anyone. Nor does Plaintiff cite
any provision of the ADA requiring an owner to put someone in charge of
ADA compliance, or any authority that an owner’s mistaken assumption that
it is in compliance with the ADA is itself a violation of the law.
Finally, with regard to Defendant’s failure to provide any training to
its tenants or employees regarding the accommodation of disabled persons,
Plaintiff cites no provision of the ADA requiring a defendant in a case
involving architectural barriers to provide any such training. Plaintiff relies
on the Second Circuit’s decision in Camarillo v. Carrolls Corp.,518 F.3d 153
(2d Cir. 2008). That case, however, did not involve architectural barriers but
an owner’s alleged failure to take steps necessary to ensure against
discrimination because of the absence of auxiliary aids and services. See 42
U.S.C. § 12182(b)(2)(A)(iii).
The court held that an owner’s failure to
effectively train employees how to deal with disabled individuals could violate
that provision of the ADA. Camarillo, 518 F.3d at 157 (alleged failure by
43
AO 72A
(Rev.8/82)
owners of fast food restaurants, which did not provide large print menus, to
train employees how to deal with legally blind plaintiff could violate
requirement to ensure that disabled individuals not treated differently from
others due to absence of auxiliary aids or services).
Plaintiff in this case has not alleged a violation of Title III’s provision
regarding auxiliary aids and services. Instead, he alleges only the existence
of architectural barriers. Plaintiff cites no provision of the law regarding
architectural barriers that imposes a duty on an owner to train others in how
to deal with disabled individuals. Instead, the provisions on which Plaintiff
relies require an owner either to remove architectural barriers from existing
facilities, or to make new construction and alterations readily accessible to
and usable by disabled individuals, and nothing more.
See 42 U.S.C.
§§ 12182(b)(2)(A)(iv) & 12183(a). Therefore, Plaintiff’s claim based on an
alleged discriminatory policy must fail.
Summary
For the foregoing reasons, the Court DENIES AS MOOT Defendant’s
motion for extension of time to respond to Plaintiff’s motion for summary
judgment [29], DENIES Plaintiff’s motion to strike [39], DENIES Plaintiff’s
motion to strike affidavit of Roberta Sims [50], GRANTS IN PART AND
44
AO 72A
(Rev.8/82)
DENIES IN PART Plaintiff’s motion for summary judgment [25], and
GRANTS IN PART AND DENIES IN PART Defendant’s motion for summary
judgment [36].
Specifically, the Court GRANTS Defendant summary
judgment on Plaintiff’s claims regarding (1) the absence of above-ground
signage, (2) the absence of marked accessible pathways across vehicular
traffic lanes, and (3) the existence of a discriminatory policy toward the
disabled; and the Court GRANTS Plaintiff summary judgment on his claims
regarding (1) excessively sloped parking spaces and access aisles, (2) the
improper distribution of parking spaces, and (3) non-compliant curb ramps
at two locations. With regard to the claims on which Plaintiff is granted
summary judgment, the Court DECLARES that the conditions at Defendant’s
shopping center violate Title III of the ADA and ORDERS Defendant to alter
its facilities to bring them into compliance with the law as soon as
practicable.
The Court DIRECTS the Clerk to enter final judgment
accordingly. The Court will address Plaintiff’s entitlement to an award of
attorney’s fees in accordance with the procedures set out in Local Rule 54.2.
IT IS SO ORDERED, this 27th day of September, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
45
AO 72A
(Rev.8/82)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?