Wheeler v. Wal-Mart Stores East, LP
Filing
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ORDER granting 8 Defendant's Motion to Dismiss. Plaintiff Title III claims set forth in count four of the Complaint are hereby DISMISSED for failure to state a claim. Plaintiff's other claims remain pending. Signed by Chief Judge Lisa G. Wood on 8/9/2016. (csr)
3 the aniteb otateo Afarta court
for the Oautbtrn Atotritt of eorgta
39aptr000 30ibioion
ALAN WHEELER,
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Plaintiff,
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V.
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WAL-MART STORES EAST, LP,
Defendant.
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CV 515-73
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ORDER
Presently before the Court is Defendant Wal-Mart Stores
East, LP's ("Defendant") fully briefed Motion to Dismiss. See
Dkt. Nos. 8, 11, 14. In its Motion, Defendant seeks a dismissal
of only count four of Plaintiff Alan Wheeler's ("Plaintiff")
Complaint filed against it in this action. Dkt. No. 8-1. For
the reasons that follow, Defendant's Motion (dkt. no. 8) is
[e Iç
k am
BACKGROUND
On several occasions prior to March 2015, Plaintiff, who is
blind, visited Defendant's store in Waycross, Georgia, and
Defendant allegedly provided him with a manual wheelchair to
assist him while shopping. Dkt. No. 1 ("Pl.'s Compl."), ¶t 6-8.
On March 3, 2015, Plaintiff called the store to ask whether
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there would be a manual wheelchair for him to use that day, and
one of Defendant's employees allegedly assured him that a manual
wheelchair would be available for him immediately upon his
arrival. Id. at 11 9, 11. According to Plaintiff, he relied on
the employee's representation and secured a transportation
service to take him to the store. Id. at ¶ 12.
However, Plaintiff asserts that upon arriving at
Defendant's store, he learned that there was not, in fact, a
manual wheelchair for him to use. Id. at ¶ 13. Defendant's
staff offered Plaintiff an electric shopping scooter, which
Plaintiff was unable to safely operate due to his blindness.
Id. at ¶ 14. Plaintiff attempted to shop without a wheelchair
and, while he was walking in the meat department, slipped and
fell, sustaining injuries to his foot and ankle. Id. at ¶91 1517.
Plaintiff filed suit against Defendant in this Court on
September 9, 2015. See generally id. In counts one through
three of his Complaint, Plaintiff claims that Defendant's
conduct amounted to negligence, gross negligence, and breach of
contract, in violation of Georgia law. Id. at 191 18-40.
Plaintiff's count four alleges violations of Title III of the
Americans with Disabilities Act, 42 U.S.C. § 12182 ("Title
III"), and O.C.G.A. § 30-4-2(a) ("Section 30-4-2(a)"). Id. at
IT 41-47. Specifically, count four asserts that Defendant has
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discriminated against individuals with disabilities by failing
to make reasonable modifications in its policies or procedures
and to make reasonable accommodations for disabled customers,
thereby preventing them from enjoying the goods and services
that it provides to nondisabled customers. Id. at 9191 43-44.
Plaintiff's Complaint enumerates these modifications or
accommodations as follows: "offering an employee to guide
[Plaintiff or another customer] through the store, warn him of
potential hazards, not mislead [him] as to the availability of
accommodations, [or conduct] a reasonable investigation of
hazardous areas." Id. at ¶ 45. According to Plaintiff, these
modifications or accommodations "would have required no special
skills or training by Defendant's employees" and "would not have
been cost prohibitive." Id. at ¶ 46. As relief, Plaintiff
seeks compensatory and punitive damages, attorney's fees and
expenses, and an injunction requiring that Defendant comply with
Title III. Id. at pp. 15-16.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) requires that a
plaintiff's complaint contain "a short and plain statement of
the claim showing that the pleader is entitled to relief." Fed.
R. Civ. P. 8 (a) (2). A responding party thus may move to dismiss
the complaint based on a "failure to state a claim upon which
relief can be granted." Fed. R. Civ. P. 12(b) (6) ("Rule
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12(b) (6)"). In other words, a Rule 12(b) (6) motion challenges
the legal sufficiency of the complaint in setting forth a claim
to relief. See Id.
While a complaint need not contain detailed factual
allegations, it "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible
on its face.'" Ashcroft v. Iql, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))
(interpreting Fed. R. Civ. P. 8(a)(2)).. To be plausible on its
face, a complaint must set forth enough facts to "allow[} the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. A plaintiff,
therefore, must plead more than mere labels and conclusions, and
a formulaic recitation of the elements of a particular cause of
action does not suffice. Twornbly, 550 U.S. at 555. Rather, at
a minimum, a complaint should "contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory."
Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276,
1282-83 (11th Cir. 2007) (per curiam) (quoting Roe v. Aware
Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.
2001))
In evaluating a Rule 12(b) (6) motion, a court must "accept
as true the facts as set forth in the complaint and draw all
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reasonable inferences in the plaintiff's favor." Randall v.
Scott, 610 F.3d 701, 705 (11th Cir. 2010) . Ordinarily, a
court's review on a motion to dismiss is limited to the factual
allegations on the face of the complaint, see Igbal, 556 U.S. at
678, and a party's presentation of matters outside of the
pleadings transforms the motion into one for summary judgment,
Fed. R. Civ. P. 12(d). However, there are certain instances in
which a court may consider matters outside of the pleadings at
the dismissal stage, see Davis v. Self, 547 F. App'x 927, 929
(11th Cir. 2013), including, for example, facts that are subject
to judicial notice, see Fed. R. Evid. 201(a)-(d); Tellabs, Inc.
v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
DISCUSSION
Defendant now moves pursuant to Rule 12(b) (6) for a
dismissal of Plaintiff's count four of the Complaint. Dkt. No.
8-1. Defendant argues that Plaintiff fails to state any
plausible claim for relief under Title III, because Plaintiff's
proposed policy modifications and accommodations are not
reasonable or necessary and would place an undue burden on
Defendant and fundamentally alter the nature of its services.
Id. at pp. 3-9. Defendant contends that Plaintiff's Complaint
also does not make out any claim under Section 30-4-2(a),
because that statute pertains to a disabled individual's use of
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a guide dog and, in any event, is subject to the limitations of
Title III. Id. at pp. 9-10.
Plaintiff urges the Court to deny Defendant's Motion in its
entirety. Dkt. No. 11. As to his Title III claim, Plaintiff
insists that his proposed modifications and accommodations are
both reasonable and necessary and would not fundamentally alter
Defendant's services, recognizing that he requests
individualized attention from Defendant's employees but
emphasizing that it would be limited and momentary in nature.
Id. at pp. 4-9. Plaintiff also asserts that Section 30-4-2(a)
applies generally to the rights of blind individuals, while only
a later subsection of the statute addresses guide dogs. Id. at
p. 9. In apparent agreement with Defendant's contention that
Section 30-4-2(a) does not reach further than Title III,
Plaintiff argues only that a favorable ruling on his Title III
claim at this stage should result in a similar decision on his
analogous state-law claim. Id.
I. Plaintiff's Title III Claim
Title III of the ADA prohibits private entities from
discriminating against individuals with disabilities in places
of public accommodation. Gathright-Dietrich v. Atlanta
Landmarks, Inc., 452 F.3d 1269, 1272 (11th Cir. 2006).
Specifically, Title III makes it unlawful for "any person who
owns, leases (or leases to), or operates a place of public
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accommodation" to "discriminate[] . . . on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of [such] place of public accommodation." 42 U.S.C. § 12182(a).
To establish a claim of discrimination under Title III, a
plaintiff must demonstrate three elements: (1) he is an
individual with a disability; (2) the defendant owns, leases, or
operates a place of public accommodation; and (3) the defendant
discriminated against him within the meaning of Title III.
Norkunas v. Seahorse NB, LLC, 444 F. App'x 412, 416 (11th dr.
2011) (citing 42 U.S.C. § 12182(a)). Here, Defendant does not
deny that Plaintiff has a disability and that it is an entity
covered by Title III. Dkt. No. 8-1, p. 3. Rather, at issue in
this case is whether Defendant has discriminated against
Plaintiff under the final element.
Discrimination in violation of Title III includes, among
other things, the following:
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, facilities, privileges,
advantages, or accommodations; [and]
• • • a failure to take such steps as may be
necessary to ensure that no individual with a
disability is excluded, denied services, segregated or
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otherwise treated differently than other individuals
because of the absence of auxiliary aids and services,
unless the entity can demonstrate that taking such
steps would fundamentally alter the nature of the
good, service, facility, privilege, advantage, or
accommodation being offered or would result in an
undue burden.
42 U.S.C. § 12182(b) (2) (A)(ii)-(iii). Accordingly, to
constitute discrimination, a defendant must fail to provide a
certain modification or accommodation that (1) would be
"reasonable under the circumstances"; (2) would be "necessary
for th[e] person" with a disability; and (3) would not "work a
fundamental alteration" in the service or accommodation provided
by the defendant. PGA Tour, Inc. v. Martin, 532 U.S. 661, 688
(2001). A plaintiff alleging a Title III violation bears the
burden of proving reasonableness and necessity under the first
and second prongs, and, if satisfied, the burden shifts to the
defendant to show a fundamental alteration under the third
prong. See Alumni Cruises, LLC v. Carnival Corp., 987 F. Supp.
2d 1290, 1305 (S.D. Fla. 2013) (citing Johnson v. Gambrinus
Co./Spoetzl Brewery, 116 F.3d 1052, 1052 (5th Cir. 1997)).'
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As discussed in Alumni Cruises, LLC, the Eleventh Circuit has not
addressed the allocation of the burdens of proof in Title III cases
where the alleged discrimination involves a covered entity's failure
to make a proposed modification, 987 F. Supp. 2d at 1304; nor does it
appear to have taken up this issue where the form of discrimination
alleged is the failure to provide auxiliary aids or services.
However, the Eleventh Circuit has adopted a burden-shifting framework
in cases involving an analogous form of discrimination under Title
111-the failure to remove architectural and communication barriersand, in doing so, relied on case law from other circuits that applied
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Relevant to the reasonableness determination is that Title
III guarantees those with disabilities "full and equal
enjoyment" of public facilities, and, therefore, a covered
entity must consider how its facilities are used by able-bodied
customers "and then take reasonable steps to provide disabled
guests with a like experience." Baughman v. Walt Disney World
Co., 685 F.3d 1131, 1135 (9th Cir. 2012) (citing Spector v.
Norwegian Cruise Line Ltd., 545 U.S. 119, 128-29 (2005)). A
Title III plaintiff must demonstrate that a proposed
modification or accommodation to fulfill this objective "is
reasonable in the general sense, that is, reasonable in the run
of cases." See Johnson, 116 F.3d at 1059; see also U.S.
Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002) (plaintiff
must show that the modification "seems reasonable on its face,
i.e., ordinarily or in the run of cases" (citing Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001) (plaintiff
must demonstrate that, "at least on the face of things," the
proposed accommodation will be feasible for the employer); and
this framework to modifications claims. See Gathright-Dietrich, 452
F.3d at 1273-75 (citing Cob. Cross Disability Coal. v. Hermanson
Family Ltd. P'ship I, 264 F.3d 999, 999 (10th Cir. 2001)); see also
Cob. Cross Disability Coal., 264 F.3d at 1003-04 (citing Johnson, 116
F.3d at 1059). Accordingly, the Court joins the approach of the
Alumni Cruises, LLC court in applying the burden-shifting framework in
the modifications context, and further finds that this framework is
appropriate for claims based on accommodations such as auxiliary aids
or services.
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Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir.
1995) (plaintiff must prove that he seeks a "plausible
accommodation"))). Certain considerations bearing on
reasonableness include "the difficulty of accomplishing it, the
cost of implementation, and the effect of the proposed
modification on the economic operation of the entity." Alumni
Cruises, LLC, 987 F. Supp. 2d at 1305 (citing GathrightDietrich, 452 F.3d at 1274); see also Baughman, 685 F.3d at 1135
(assessing cost, disruption to the entity's business, and
safety). The reasonableness of a proposed modification or
accommodation presents a question of fact; however, where a
reasonable jury could not find otherwise, a court may find the
modification or accommodation to be unreasonable as a matter of
law. Alumni Cruises, LLC, 987 F. Supp. 2d at 1305 (citing Mary
Jo C v. N.Y. St. & Local Retirement Sys., 707 F.3d 144, 153 (2d
Cir. 2013); Crowder v. Kitagawa, 81 F.3d 1480, 1485 (9th Cir.
1996); and Keith v. Cty. of Oakland, 703 F.3d 918, 927 (6th Cir.
2013))
Plaintiff does not plausibly allege that Defendant failed
to make any reasonable policy modification or to provide any
reasonable accommodation to him on the day of the incident.
"Full and equal enjoyment" of Defendant's facility by
individuals with disabilities contemplates that such individuals
be able to enter and access all areas of the store and select
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and purchase merchandise. In his briefing, Plaintiff summarizes
the modifications and accommodations that he contends Defendant
would need to make to achieve this level of access, as follows:
(1) Defendant's employees would need to not mislead Plaintiff
and other patrons as to the availability of manual wheelchairs;
(2) employees would need to investigate the premises for
potential hazards; and (3) employees would need to guide
Plaintiff and similar patrons through the store and warn them of
potential hazards. Dkt. No. 11, pp. 4-6.
Plaintiff's first request—that employees be required not to
mislead Plaintiff and others about wheelchair availability—is
not reasonable as a matter of law. Title III does not mandate
that a covered entity like Defendant provide its customers "with
personal devices, such as wheelchairs." 28 C.F.R. § 36.306; see
also Id. at pt. 36, app. C. Because Defendant's failure to have
a policy or make an accommodation to furnish manual wheelchairs
itself would not constitute discrimination under Title III, it
follows that any information given by its employees as to the
availability of such wheelchairs could not create a cognizable
discrimination claim. Instead, allegations of this sort are
more appropriately resolved under state contract law, as
demonstrated by Plaintiff's breach of contract claim in count
three of the Complaint, see Pl.'s compi., 191 35-40, which
Defendant has not moved to dismiss.
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Plaintiff's second proposed modification or accommodation,
which involves inspection procedures, similarly fails the
reasonableness requirement, because—evening assuming that
Defendant has no such procedures in place—its failure to
maintain and warn of store conditions would affect all customers
alike, not just those with disabilities. Accordingly, this
conduct could not be considered discrimination "on the basis of
disability" under Title III, see 42 U.S.C. § 12182(a), and any
modification or accommodation to this end would not be for the
purpose of ensuring that customers with disabilities have equal
enjoyment of the store. Defendant's inspection practices are
more properly the subject of a state-law negligence claim like
that in count one of Plaintiff's Complaint, see Pl.'s compl., ¶[
18-27, which also is not challenged by Defendant at this stage.
Equally insufficient is Plaintiff's third proposal, which
would involve one of Defendant's employees guiding Plaintiff and
similar patrons through the store and warning them of dangers.
Under Title III, a covered entity is not obligated to provide
"services of a personal nature including assistance in eating,
toileting, or dressing." 28 C.F.R. § 36.306. Notably,
"momentary individualized attention" is often required by both
disabled .and nondisabled patrons alike and, therefore, does not
amount to a "service of a personal nature." Alumni Cruises
LLC, 987 F. Supp. 2d at 1309 (additional staffing and training
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of cruise ship employees to supervise children with
developmental disabilities was not unreasonable, in part because
the "momentary individualized attention" needed by such children
was no greater than that required by any child and thus was not
a "servicelj of a personal nature"). Accordingly, while
"retrieving an item from a shelf might be an 'auxiliary aid or
service' for a blind person who could not locate the item
without assistance . . . or a reasonable modification to a selfservice policy for an individual who lacked the ability to grasp
the item," a covered entity "would not be required to provide a
personal shopper" for a disabled customer. 28 C.F.R. pt. 36,
app. C.
Pretermitting whether any of Defendant's existing employees
are adequately trained to guide blind customers (and any
liability issues that might arise from their doing so),
Plaintiff's requested modification or accommodation contemplates
Defendant offering a personal service for these specific
customers. Far from momentary individualized assistance,
Plaintiff seeks to have an employee personally accompany him or
another blind customer through the entire store for the duration
of his shopping experience, which seemingly would include
leading him down the aisles of merchandise and also through
restroom facilities and any food-service areas that may be
present. Moreover, what Plaintiff envisions would involve, in
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part, an employee playing the role of a personal shopper. See
Personal Shopper, Oxford Dictionaries,
http: //www.oxforddictionaries.com/us/definition/american_english
/personal-shopper (last visited June 27, 2016) (defining
"personal shopper" as including "[a]n individual who is paid to
assist another to purchase goods, either by accompanying them
while shopping or by shopping on their behalf"). As these
services do not, as a matter of law, lie within Defendant's
obligations to accommodate disabled customers under Title III,
Plaintiff's proposals to this effect are not reasonable.
Plaintiff thus fails to plausibly identify any reasonable
modification or accommodation required of Defendant under Title
III. Because Plaintiff does not make a sufficient showing on
the "reasonableness" element of his prima facie case, the Court
need not reach the issues of "necessity" and "fundamental
alteration" to conclude that Plaintiff cannot sustain a Title
III claim. This portion of Defendant's Motion is, therefore,
100INYi lip
II. Plaintiff's Section 30-4-2(a) Claim
Section 30-4-2(a) states, in relevant part, that "[b]lind
persons . . . are entitled to full and equal accommodations,
advantages, facilities, and privileges . . . [at] places of
public accommodation . . . , subject only to the conditions and
limitations established by law and applicable alike to all
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persons." O.C.G.A. § 30-4-2(a). The statute goes on to
discuss, in the next subsection, the right of a person with
visual or other physical impairments to be accompanied by a
guide dog or service dog at places of public accommodation. Id.
§ 30-4-2(b). While courts have applied this statute in the
context of a denial of access to a place of public accommodation
based on a disabled individual's use of a service animal, see,
e.g., Amick v. BM & KM, Inc., 275 F. Supp. 2d 1378, 1382-83
(N.D. Ga. 2003), it is unclear in the case law whether the first
subsection, standing alone, is intended to serve more generally
as a bar on any discrimination on the basis of a disability in a
public accommodation, such that situations not involving the use
of a service dog would come within its scope.
Even assuming, without deciding, that Section 30 - 4 - 2(a)
does protect against any disability-based discrimination at
Defendant's store, Plaintiff does not plausibly allege that any
such discrimination has occurred. As Plaintiff implicitly
recognizes in his briefing, see dkt. no. 11,
p. 9, Section 30-4-
2(a) is "subject only to the conditions and limitations
established by law and applicable alike to all persons,"
O.C.G.A. § 30-4-2(a), and, therefore, this provision is limited
by and affords no greater protection than the generally
applicable terms of Title III. Because Plaintiff fails to make
out any plausible Title III violation for the reasons discussed
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supra, his claim pursuant to any state-law counterpart would
similarly fail at this stage. Defendant's Motion as to
Plaintiff's Section 30-4-2(a) claim is thus GRANTED.
CONCLUSION
Based on the foregoing, Defendant's Motion to Dismiss (dkt.
no. 8) is GRANTED.
Plaintiff's Title III claims set forth in
count four of the Complaint are hereby DISMISSED for failure to
state a claim. Plaintiff's other claims remain pending.
SO ORDERED, this 9T11 day of August, 2016.
LISA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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