Sadler v. Kroger Co.

Filing 34

Opinion and Order - Fred Meyer's motion for summary judgment (ECF 18 ) is DENIED. Signed on 10/5/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SUSAN SADLER,
Plaintiff,

Case No. 3:17-cv-1269-SI
OPINION AND ORDER

v.
FRED MEYER STORES, INC.,
Defendant.
John David Burgess, Daniel Snyder, and Carl Post, LAW OFFICES OF DANIEL SNYDER, 1000 SW
Broadway, Suite 2400, Portland, OR 97205. Of Attorneys for Plaintiff.
Rebecca Boyette, Jeffrey S. Eden, and Nathan D. Sramek, SCHWABE, WILLIAMSON, & WYATT,
P.C., 1211 SW Fifth Ave., Suite 1900, Portland, OR 97204. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Plaintiff Susan Sadler (“Sadler”) alleges that Defendant Fred Meyer Stores, Inc. (“Fred
Meyer”) discriminated against her, accompanied by her service animal, on the basis of Sadler’s
disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,
or accommodations in a place of public accommodation in violation of Title III of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12182 and Oregon Revised Statutes §§ 659A.142

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and 659A.143. Before the Court is Defendant’s motion for summary judgment. For the reasons
that follow, Defendant’s motion is denied.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the
evidence in the light most favorable to the non-movant and draw all reasonable inferences in the
non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir.
2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a
motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the
plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255
(1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
BACKGROUND
For purposes of its motion for summary judgment, Fred Meyer does not dispute that
Sadler is a disabled person. She suffers from degenerative disc disease, fibromyalgia, major
depressive disorder, borderline personality disorder, post-traumatic stress disorder (“PTSD”),
and generalized anxiety disorder. Sadler has a dog named “Annabelle” that she contends
qualifies as a “service dog” under the ADA. Sadler asserts that she and her husband, Russel
Mumford (“Mumford”), trained Annabelle to help Sadler with her disabilities.

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Fred Meyer owns a chain of hypermarket superstores. Between December 19, 2016 and
January 6, 2017, Sadler visited the Fred Meyer store location in Warrenton, Oregon at least three
times. During these visits, Sadler alleges that Fred Meyer discriminated against her based on her
disability and because she was accompanied by a service animal.
DISCUSSION
Fred Meyer moves for summary judgment, arguing that Sadler fails to make a prima
facie case for discrimination. Fred Meyer contends that Sadler is unable to do so because she
cannot prove that: (a) Annabelle qualifies as a service animal; or (b) Sadler requested a
reasonable modification in policy, practice, or procedure to accommodate her disability that Fred
Meyer denied.
A. Service Animal
Fred Meyer argues that Sadler cannot show that there is a genuine dispute that Annabelle
is a service animal under the ADA or Oregon law. Federal regulations define “service animal”
as:
any dog that is individually trained to do work or perform tasks for
the benefit of an individual with a disability, including a physical,
sensory, psychiatric, intellectual, or other mental disability. . . .
The work or tasks performed by a service animal must be directly
related to the individual’s disability. Examples of work or tasks
include, but are not limited to, . . . helping persons with psychiatric
and neurological disabilities by preventing or interrupting
impulsive or destructive behaviors. The crime deterrent of an
animal’s presence and the provision of emotional support, wellbeing, comfort, or companionship do not constitute work or tasks
for the purpose of this definition.
28 C.F.R. § 36.104. Oregon law similarly defines an “assistance animal” as “a dog . . . that has
been individually trained to do work or perform tasks for the benefit of an individual.” Or. Rev.
Stat. § 659A.143(1)(a). The U.S. Department of Justice has determined that a dog “trained to
sense an anxiety attack is about to happen and take a specific action to help avoid the attack or
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lessen its impact . . . qualif[ies] as a service animal,” but a dog that merely provides comfort does
not. Frequently Asked Questions about Service Animals and the ADA, U.S. DEP’T OF JUSTICE
(July 20, 2015), available at https://www.ada.gov/regs2010/service_animal_qa.pdf.
Fred Meyer argues that Annabelle merely accompanies Sadler for comfort and does not
perform any task that would qualify Annabelle as a protected service animal. Fred Meyer further
argues that Annabelle is not a service animal because: (a) no evidence substantiates the
contention that Annabelle can sense when Sadler is suffering from anxiety or PTSD symptoms;
and (b) Sadler does not continuously rely on Annabelle to perform specific tasks at all times.
Sadler responds that she and her husband individually trained Annabelle to perform the
task of intervening when Sadler shows signs of anxiety or symptoms of PTSD to help prevent
anxiety attacks and other consequences of PTSD from worsening. This is for the benefit of
Sadler and directly relates to her disability. Sadler testified at deposition that Annabelle’s
training lasted four to five months, and Sadler described how she and her husband taught
Annabelle to recognize and respond to Sadler’s symptoms. Sadler also testified that Annabelle
jumps up or paws at Sadler or licks Sadler’s face to remind her to calm down when Sadler shows
signs of anxiety. Further, the law does not require that a service animal be professionally
trained.1
Fred Meyer, however, contends that there is no evidence that Annabelle actually senses
when Sadler is anxious because Sadler admitted that Annabelle sometimes jumps onto her when
she is not anxious. Although Annabelle may jump on Sadler at times other than when she needs
assistance, Sadler also testified that Annabelle performs her trained tasks and reacts to Sadler
1

Frequently Asked Questions about Service Animals and the ADA, U.S. DEP’T OF
JUSTICE (July 20, 2015), https://www.ada.gov/regs2010/service_animal_qa.pdf (“People with
disabilities have the right to train the dog themselves and are not required to use a professional
service dog training program.”).
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when Sadler is anxious. Fred Meyer offers no legal authority for the proposition that an
occasional “false positive” or “false hit” precludes Annabelle from serving as a service animal.
Fred Meyer also argues that Sadler does not continuously rely on Annabelle at all times.
Fred Meyer notes that Sadler sometimes leaves Annabelle at home when she shops. In addition,
for part of the time that Annabelle was in the shopping cart when Sadler was in a Fred Meyer
store, Sadler stood too far from the cart for Annabelle to perform any service tasks. Fred Meyer,
however, offers no authority for the proposition that a disabled person must continuously rely
upon an animal at all times for that animal to qualify as a service animal under the ADA or
Oregon law.
On summary judgment, the Court must view the evidence in the light most favorable to
the non-moving party, and “all justifiable inferences are to be drawn in that party’s favor.” Hunt
v. Cromartie, 526 U.S. 541, 552 (1999) (alteration omitted) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)). Drawing all reasonable inferences in Sadler’s favor, a rational
trier of fact could find that Annabelle qualifies as a service animal. Sadler testified that she
trained Annabelle to recognize symptoms of her disability and to perform specific actions to help
Sadler cope with anxiety attacks and PTSD. Thus, Sadler has presented sufficient evidence to
establish a genuine issue that Annabelle is a service animal as that term is described under the
ADA and Oregon law.
B. Discrimination on the Basis of Disability
Title III of the ADA prohibits discrimination “on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of
any place of public accommodation . . . .” 42 U.S.C. § 12182(a). The Ninth Circuit has held that
“[t]o prevail on a Title III claim, the plaintiff must show that (1) she is disabled within the
meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of
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public accommodation; and (3) the plaintiff was denied accommodations by the defendant
because of her disability.” Molski v. M.J Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007); see also
42 U.S.C. §§ 12182 (a)-(b). Title III further defines both “general” and “specific” prohibitions.
42 U.S.C. § 12182(b).
Fred Meyer argues that Sadler has not produced sufficient evidence of discrimination to
survive summary judgment. Fred Meyer asserts that Sadler must prove the following elements to
establish prima facie evidence of discrimination under either Title III or Oregon law:
(1) she is a person with a disability; (2) the defendant entity is a public
accommodation; (3) the plaintiff requested a reasonable modification in policy,
practice, or procedure to accommodate her disability; and (4) the defendant
denied the requested modification
ECF 18 at 13 (citing Johnson v. Gambrinus Co./Spoetzel Brewery, 116 F.3d 1052, 1059-60 (5th
Cir. 1997); Martin v. PGA Tour, Inc., 204 F.3d 994, 1001 (9th Cir. 2000) (citing Johnson)). Fred
Meyer further asserts that Sadler has not offered any evidence that she requested a reasonable
modification in policy, practice, or procedure that Fred Meyer denied.
Although evidence of a request for a reasonable modification is relevant to one “specific”
prohibition under Title III, specifically, a failure to provide a reasonable modification in a policy,
practice, or procedure, Plaintiff does not assert claims solely arising under this single specific
prohibition. Instead, Plaintiff cites in her response to Defendant’s motion for summary judgment
both the general and specific prohibitions described in Title III, which prohibit more than merely
a failure to provide a reasonable modification.
For example, under the “general prohibition[s]” a party may assert that he or she suffered
discrimination because, among other things, the individual was denied the “opportunity . . . to
participate in or benefit from the goods, services, facilities, privileges, advantages, or
accommodations of an entity,” or that the “opportunity to participate in or benefit from a good,
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service, facility, privilege, advantage, or accommodation . . . is not equal to that afforded to other
individuals. 42 U.S.C. § 12182(b)(1)(A)(i)-(ii). Sadler alleges several acts that could reasonably
be found to constitute discrimination under this general prohibition, such as verbal harassment,
permitting customers to “berate” plaintiff, and banning plaintiff from shopping at a Fred Meyer
store.
Sadler also claims that Fred Meyer discriminated against her by repeatedly accosting her
about her animal and telling her that she would have to leave the store if she did not place
Annabelle on a leash. Fred Meyer argues that there is no evidence that Sadler could not leash
Annabelle or that she ever told that to anyone at Fred Meyer. Sadler, however, testified in her
deposition that her primary care doctor told her that she should not hold a leash and wrote her a
doctor’s note to that effect. Mumford testified in his deposition that “we’ve” told Fred Meyer
employees that Annabelle is an ADA registered animal and is not to be leashed. Based on this
testimony, the Court finds that there are genuine issues of material fact as to whether Sadler
could not hold and leash Annabelle and whether Sadler, directly or indirectly through Mumford,
communicated to Fred Meyer her inability to hold a leash. This claim involves a request for a
modification in Fred Meyer’s policy, and thus Mumford’s deposition testimony raises a
sufficient issue of fact, even on the claim on which Fred Meyer focuses its argument: whether
Sadler requested a “reasonable modification in policy, practice, or procedure to accommodate
her disability.” Johnson, 116 F.3d at 1059-60.
Sadler also alleges that Fred Meyer banned her from the store because she and her
husband complained about the discriminatory treatment that she received. The parties agree that

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Fred Meyer “trespassed” Mumford from the store.2 The parties disagree on whether Fred Meyer
“trespassed” Sadler from its Warrenton store. Fred Meyer argues that it did not trespass Sadler
for any of its stores. Mumford, however, testified in his deposition that a Fred Meyer manager
told Mumford that both he and Sandler were “86’d,” meaning banned, from the property and
“could never come back again.” According to Mumford, the store manager referred to both
Mumford and Sadler, whom the manager called Mumford’s “girlfriend,” and said “you guys
are 86’d from this store.” Fred Meyer denies that it has banned, or “86’d,” Sadler from any store.
Fred Meyer also notes that Sadler has not been excluded from any Fred Meyer store since that
last visit, but also concedes that she has not attempted to return since that last visit. This
testimony raises a genuine issue of fact regarding whether Fred Meyer banned Sadler from the
store and thus, whether Fred Meyer denied Sadler access or accommodation because of her
disability. See Molski, 481 F.3d at 730.
CONCLUSION
Fred Meyer’s motion for summary judgment (ECF 18) is DENIED.
IT IS SO ORDERED.
DATED this 5th day of October, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

2

The parties use the verb “trespassed” to mean that a Fred Meyer employee told someone
that he or she was no longer welcome on Fred Meyer’s private property and that any future
entries would be treated as a trespass.
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