ADA case may proceed alleging excessive slope in restaurant parking facilities
August 23, 2018 - Kate Halloran
Two plaintiffs suing a restaurant chain for violations of the Americans with Disabilities Act have Article III standing to proceed, but their proposed class does not meet Federal Rule of Civil Procedure 23’s requirements, the Third Circuit has ruled. The court noted that the plaintiffs alleged a novel interpretation of the statute that would require businesses to cure access barriers and also to proactively investigate their facilities for barriers and institute company-wide policies about this ongoing duty.
Two plaintiffs suing a restaurant chain for violations of the Americans with Disabilities Act (ADA) have Article III standing to proceed, but their proposed class does not meet Federal Rule of Civil Procedure 23’s requirements, the Third Circuit has ruled. The court noted that the plaintiffs alleged a novel interpretation of the statute that would require businesses to cure access barriers and also to proactively investigate their facilities for barriers and institute company-wide policies about this ongoing duty. The court found that this is a reasonable approach but remanded the case for further proceedings on two prongs of the Rule 23 analysis. (Mielo v. Steak ’n Shake Operations, Inc., 2018 WL 3581450 (3d Cir. July 26, 2018).)
Two plaintiffs with disabilities, Christopher Mielo and Sarah Heinzl, filed ADA claims against restaurant chain Steak ’n Shake, claiming that the grading of slopes in the defendant’s parking facilities make them unnecessarily difficult to navigate despite being in areas that are supposed to be accessible for people with disabilities. The plaintiffs alleged that the slopes constituted a barrier under the ADA and sought to enjoin the defendant to develop corporate policies to bring the parking facilities into compliance with the law. The plaintiffs experienced the slopes for themselves at two of the defendant’s restaurants and sought a class action for more than 400 other locations throughout the country.
The Third Circuit noted that the plaintiffs’ request for corporate policies designed to seek out access barriers in its facilities—not just correct them after they are discovered—is a novel interpretation of the ADA and its corresponding regulations. The ADA allows people to seek injunctive relief under the statute for violations of Title III, which provides for the “full and equal enjoyment of any place of public accommodation” and requires that businesses remove barriers to access. A request for injunctive relief results in “an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities,” and may include “modification of a policy.” The Third Circuit also highlighted 28 C.F.R. §36.211, which states that “a public accommodation shall maintain in operable working condition those features of facilities and equipment to be readily accessible and usable.”
A federal district court in Pennsylvania interpreted this regulation as placing an ongoing duty for continued maintenance on businesses, and it certified the putative class. The class included people “with qualified mobility disabilities who were or will be denied” full access to the defendant’s restaurants because of “accessibility barriers at a Steak ’n Shake restaurant where Defendant owns, controls and/or operates the parking facilities.” The defendant appealed, and the Third Circuit determined that the individual plaintiffs have Article III standing to pursue their claims, but it reversed and remanded the class certification on the issues of numerosity and commonality.
As to standing, the court first considered whether the plaintiffs alleged “an invasion of a legally protected interest.” While not commenting on the merits of the plaintiffs’ novel ADA interpretation, the court found that they “present[ed] a colorable argument that the ADA requires [the defendant] to adopt new policies requiring them to actively seek out and correct access violations.” The court then examined whether their injury was concrete and particularized. It explained that alleging that the absence of corporate policies on this access issue alone would not suffice to establish standing, but the fact that the two class representatives experienced harm when trying to navigate the defendant’s parking facilities was adequate.
The Third Circuit also found that the plaintiffs met Rule 23’s requirements for traceability and redressability. The plaintiffs adequately alleged that but for the defendant’s lack of corporate policies, they would not have suffered their injuries. While establishing a causal link on this point likely would be a hurdle, the court noted, the causation burden is not as stringent at the class certification stage. As to redressability, the court determined that it was “a close call,” but that all that was required at this stage was a finding that the injunction was “likely” to remedy the harm. It reasoned that nothing appeared to prevent the defendant from adopting the proposed policies and that the injunction requested the district court to retain jurisdiction to ensure compliance with the policies.
But the putative class failed on the numerosity and commonality prongs. The court explained that Rule 23 requires a preponderance of the evidence that its elements have been satisfied and that when a court expresses doubt—as the district court did here—about whether those requirements have been met, the class should not be certified. For numerosity, a factual determination is necessary, and here, the plaintiffs’ reliance on generalized numbers about the number of people with disabilities in the country who were likely to encounter the defendant’s parking facilities was too speculative. The Third Circuit also determined that the district court’s wording about who is included in the class was too broad because it could include people who were injured in areas beyond the parking facilities, as long as the restaurant included a parking facility owned or operated by the defendant. This would include injuries different from the class representatives’ injuries and thus run afoul of the U.S. Supreme Court precedent in Wal-Mart Stores, Inc. v. Dukes (564 U.S. 343 (2011)) regarding commonality. As a result, the court remanded the Rule 23(a) question to allow the plaintiffs to present new evidence on numerosity and commonality.
Baltimore attorney Sharon Krevor-Weisbaum, who filed an amicus brief on behalf of Disability Rights Pennsylvania and the National Disability Rights Network, explained, “The DOJ recognized that accessibility requirements in the standards would be chimerical if accessibility features, once installed, were not maintained. Indeed, the requirement to maintain accessible features is part and parcel of the requirement to remove barriers on an ongoing basis. Therefore, the implementing regulations, issued in 1991, require, sensibly, that ‘a public accommodation shall maintain in operable working condition’ any accessibility features. It is disingenuous for Steak ’n Shake to assert, nearly 27 years later, that the regulation did not provide it sufficient notice that it had to take steps to maintain the accessible features of its parking lots as part of its statutory ongoing barrier removal obligations.”