Dudley v. Hannaford Bros.Dudley v. Hannaford Bros.
Congress enacted the Americans with Disabilities Act,
The underlying action arises out of a retailer’s refusal to sell alcoholic beverages to a disabled person whose symptoms mimic the traits of intoxication. The district court first concluded that Title III of the ADA permitted the maintenance of a private cause of action.
Dudley v. Hannaford Bros. Co.,
We agree with the district court that the ADA requires a retail establishment to exhibit more flexibility in serving disabled patrons. Accordingly, we affirm the judgment below.
I. BACKGROUND
We rehearse the facts as found by the district court, consistent with record support.
See Sierra Fria Carp. v. Donald J. Evans, P.C.,
In 1993, plaintiff-appellee David Dudley suffered massive trauma to his head, legs, and internal organs in an automobile accident. He never fully recovered from the effects of those injuries. Although he lost the manual dexterity needed to oрerate his appliance repair business, a regimen of therapy, stretching over several years, enabled him to resume a modicum of activities. His remaining symptomatology, however, included severely impaired speech, a pronounced loss of muscular control, an inability to take even breaths, and a tendency toward impulsive mood swings. The district court observed Dudley during the trial and described his speech as “awkward and often very difficult to comprehend.”
Dudley II,
The store’s shift leader, Armand Cook-son, noticed that Dudley was spending what seemed to be an inordinate amount of time staring at the shelves. When Dudley finally selected a four-pack of wine coolers and proceeded tоward the checkout counter, Cookson observed his rambling gait, drooping eyelids, and flushed face. Cook-son jumped to the conclusion that Dudley was intoxicated. Accordingly, Cookson advised the cashier, Erin Donnell, not to sell Dudley any alcoholic beverages.
Dudley placed the wine coolers on the counter. Donnell greeted him and received a slurred response. Donnell, like Cookson, already had concluded that Dudley was drunk, and his slurred speech reinforced her mindset. She told Dudley that she believed him to be intoxicated and, therefore, would not sell him any alcoholic beverages. Dudley immediately became agitated, throwing his arms into the air and exclaiming, “Here we go again!”
Speaking loudly, Dudley tried to explain that he was not besotted but disabled. Donnell was taken aback by Dudley’s aggressive manner and stepped away from the cash register. Cookson then intervened, reiterating that the store would not sell any alcoholic beverages to Dudley and removing the wine coolers from the counter. Dudley became increasingly frustrated; in his labored speech, he tried to impart that injuries from a car wreck, not the overindulgent consumption of alcohol, explained his behavior. Cookson — who admitted at trial that he thought this explanation plausible when given — informed Dudley that the store had a strict rule prohibiting managers from reversing a cashier’s decision not to sell alcoholic beverages to a customer. Dudley nonethеless persisted and asked to speak with the person in charge.
Henry Fossett, the night manager, responded. He had observed much of what had transpired. Dudley calmly described the nature of his disability. He pointed out that his car (clearly visible through the plate glass storefront) was parked in a handicapped parking place and bore license plates denoting that its owner was a person with a disability. He also encouraged Fossett to call the police so that he could take a breathalyzer test and prove conclusively that he was not intoxicated. After hearing Dudley’s explanation, Fos-sett considered it possible that Dudley suffered from a disability. Nevertheless, Fossett fell back on the store’s policy, rеiterating that management would not revisit a cashier’s refusal to purvey alcoholic beverages to a customer.
Dudley left the store empty-handed. Since that evening, he has not attempted to purchase alcoholic beverages at the Gardiner Shop ‘n Save or at any of Hanna-ford’s other locations (despite Hannaford’s relatively attractive prices). For its part, Hannaford has not changed any of its policies or practices regarding the sale of alcoholic beverages.
II. TRAVEL OF THE CASE
On or about September 1, 1999, Dudley filed a charge of discrimination with the
The court proceeded to write a thoughtful rescript delineating Dudley’s incapacities, describing the events of February 27, 1999, and determining that Dudley was disabled within the meaning of the ADA.
Dudley II,
The court then turned to the question of relief. Acting pursuant to both statutes, the court enjoined Hannaford from continuing to enforce its discriminatory “refusal to reconsider” policy at its Gardiner store. Id. Then, acting under the MHRA, the court imposed a $5,000 civil penalty and awarded Dudley reasonable attorneys’ fees. Id. at 77. Hannaford now appeals.
III. ANALYSIS
We divide our analysis into several segments. We begin with an overview of the pertinent provisions of the ADA. We then discuss Hannaford’s two principal defenses to the ADA claim. Finally, we turn to the MHRA claim.
A. The ADA: An. Overview.
The ADA did not emerge in a vacuum. Congress found that ^society has tended to isolate and segregate individuals with disabilities,” thus creating “a serious and pervasive social problem.”
Title III of the ADA targets discrimination by privately operated places of public accommodation (including supermarkets and other types of retail shops). It sends a bluntly worded message to those establishments that fall within its purview: you may not discriminate against an individual in the full and equal access to goods and services on the basis of a disability.
The case before us involves Title III. The law’s general prohibition stipulates that:
No individual shall be discriminated against 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 by any personwho owns, leases (or leases to), or operates a place of public accommodation.
Id. § 12182(a). For purposes of section 12182(a), discrimination includes:
[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
Id. § 12182(b)(2)(A)(ii). The remedies contained in Title III are made available to:
[A]ny person who is being subjected to discrimination on the basis of disability in violation of [Title III] .... Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.
Dudley invokes these sections, claiming that Hannaford’s policies precluded him, because of his disability, from full and equal access to the store’s merchandisе.
B. The Existence of a Private Right of Action.
Hannaford’s initial response is that a single incident of discrimination is insufficient to support a private right of action under Title III of the ADA. In mounting this argument, Hannaford does not challenge the district court’s ruling that Dudley had standing to bring his Title III suit.
See Dudley I,
To the extent that this argument rests on the proposition that Title III is not intended to provide redress for past discrimination that is unlikely to recur, it is well-founded.
Dudley envisions the persistence of Han-naford’s “refusal to reconsider” policy as an ongoing harm. But Dudley never attempted to purchase alcoholic beverages at the Gardiner Shop ‘n Save either before or after the night in question, and Hannaford asserts that Dudley, in order to establish an ongoing harm, must prove that a subsequent effort on his part to purchase alco
The proposition that Hannaford advances — that a disabled person must subject himself to repeated instances of discrimination in order to invoke the remedial framework of Title III of the ADA — turns the language of
Under Title III of the ADA, courts typically have gauged the discriminatory effect of a policy or practice by the degree to which that рolicy or practice denies access to a disabled individual, not merely by the specific instances in which the policy or practice frustrates the individual.
See, e.g., id.
at 1136-37 (holding that a disabled individual suffers an injury once he has “become aware of discriminatory conditions existing at a public accommodation ... and is thereby deterred from visiting or patronizing that accommodation”);
Steger v. Franco, Inc.,
Our analysis, however, cannot stop there. This is not a “physical barrier” case and, as Hannaford correctly observes, the likelihood that Dudley would be denied a future right to purchase necessarily turns on an informed prophecy about a store clerk’s subjective judgment. Moreover, Hannaford suggests that the evening in question may have been atypical both because it was a Saturday night and because it followed a grueling move that may have exacerbated Dudley’s symptoms. Were Dudley to come into the Gardiner store at a more tranquil time or after a less harrowing day, this thesis runs, he might not encounter the same difficulties.
This idiosyncratic fact pattern distinguishes the case at hand from the mine-run of Title III cases (like the prototypical “physical barrier” cases). To the extent that those other cases enter into a discussion of probabilities, that discussion usually occurs in the context of determining whether a particular plaintiff enjoys standing to launch a Title III claim. Consequently, the court scrutinizes the likelihood that a plaintiff, absent the barrier, would have frequented the public accommodation in the future.
See, e.g., Pickern,
As a general matter, recent Title III cases have required plaintiffs to show a real and immediate threat that a particular (illegal) barrier will cause future harm.
See, e.g., Steger,
Applying that standard, we conclude that Dudley has shown a real and immediate threat of ongoing harm. After all, the offending policy remains firmly in place; there is no dispute that Dudley, having just moved to a small town, would have been likely to patronize the Gardiner Shop ‘n Save; and the symptoms of his disability'continue to mimic the side effects of intoxication. Moreover, three Hanna-ford employees (Donnell, Cookson, and Fossett) all independently concluded that Dudley was inebriated. These facts suggest that Hannaford is overstating the degree of randomness involved in a store clerk’s perceptions. Notably, even Hanna-ford does not venture to predict a different result if the contributing circumstances of February 27—when a weary Dudley entered the store on a Saturday night—were to recur.
We hasten to add that Dudley’s experience on that evening was not wholly unique. The record shows three other incidents that are informative (even though none of them involved a Hannaford store). The first two occurred prior to February 27, 1999. In each instance, a sales clerk mistook Dudley’s disability for intoxication and, before receiving an explanation, refused to sell him alcohol. On the third occasion (after the events of February 27, 1999), a sales clerk again rebuffed Dudley in an attempt to purchase alcoholic beverages. On all three occasions, Dudley explained the situation and the store relented. If these establishments adhered to a strict “refusal to reconsider” poliсy, similar to Hannaford’s, Dudley’s' efforts to purchase liquor would have been thwarted. Thus, while there is no absolute certainty that Dudley would be denied the right to purchase alcoholic beverages during a future visit to the Gardiner Shop ‘n Save, the likelihood of a denial seems substantial. No more is exigible to support a Title III right of action.
This conclusion rests, in part, on the background understanding that
To sum up, the question before us is whether Dudley has proffered enough evidence to establish a real and immediate threat that Hannaford’s policy will again result in a Title III violation. Given the remedial purpose underlying the ADA, courts should resolve doubts about such questions in favor of disabled individuals.
See Arnold v. United Parcel Serv., Inc.,
C. The Merits of Dudley’s ADA Claim.
To recover under section 12182(b)(2)(A)(ii) in a retail sale case, a plaintiff must show that he comes within the protections of the ADA as a person with a disability,
In the lower court, Hannaford contested Dudley’s claim that he had a disability within the meaning of
As to the other elements, it is incontrovertible that Hannaford had a hard-and-fast “refusal to reconsider” policy in place, that Dudley requested Hannaford to deviate from that policy, that such a deviation was necessary for Dudley to gain access to the desired goods, and that his request was denied. What remains are questions concerning the reasonableness of the requested modification. As to those questions, Hannaford makes four main points. Its primary argument is that the district court erred in interpreting section 12182(b)(2) (A) (ii) to prohibit the unbending implementation of its “refusal to reconsider” policy. The argument takes two forms. We considеr each of them.
First, Hannaford posits that section 12182 (b)(2) (A)(ii) only applies to individuals with known or obvious disabilities. It says that since Dudley’s condition was not of this nature—his symptoms were ambiguous, and Hannaford’s personnel were uncertain as to whether his behavior stemmed from a disability or from substance abuse—its adherence to the store’s policy did not violate section 12182(b)(2)(A)(ii).
Hannaford derives this argument from
While Title III imposes certain requirements on operators of public acсommodations vis-a-vis their interactions with the citizenry at large, Title I places obligations on employers regarding their relations with employees and prospective employees. This distinction is significant. In an employment context, where relationships are personalized and employers typically have a basic familiarity with their employees,
In contrast, Title III offers no incentive for an individual to conceal his or her disability. The operative provision,
Hannaford’s next objection рosits that Dudley’s request was not reasonable (and, thus, not within the protections of
These are valid concerns, and the ADA requires us to weigh them when determining what is reasonable under
We start this phase of our analysis with a frank appraisal of the doomsday alarms sounded by Hannaford and the amici: those concerns are overstated. Neither
Under the district court’s holding, a merchant needs to initiate a reconsideration only when a customer claiming to be disabled presents some evidence of that disability. Even then, the obligation to rеconsider is not to be confused with an obligation to sell; the reconsideration may well produce a second refusal without in any way violating the ADA. Put bluntly, the district court’s ruling does not obligate a merchant to sell when in doubt. For that reason, Hannaford’s (and the amici’s) prediction that the ruling will promote a host of social ills seems farfetched. Cf. W. Shakespeare, Macbeth, act I, sc. 3, l. 134 (1606) (warning that “[p]resent fears are less than horrible imaginings”).
To be sure, the district court’s ruling involves other costs. The law should leave ample room for Hannaford and other similarly situated merchants to adopt prophylactic policies to ensure that intoxicated individuals will not be able freely to purchase alcoholic beverages. To this end, a bright-line rule, such as Hannaford’s “rеfusal to reconsider” policy, offers certain administrative efficiencies. Moreover, it forecloses potentially uncomfortable conversations with combative customers and spares store managers from making difficult decisions. But even though an individualized inquiry will consume more resources and involve less logistical ease, such an inquiry is precisely what the ADA requires.
See PGA Tour,
Hannaford’s next contention can be dispatched more easily. It says that, notwithstanding the district court’s factual finding of an established, albeit unwritten, “refusal to reconsider” policy, the personnel at its Gardiner store did not follow that policy оn the evening in question, but, rather, listened to Dudley’s plaint, gave it due consideration, and only then denied him the right to purchase alcoholic beverages.
If we were writing on a pristine page, this interpretation of the events of February 27 might seem plausible — but the page is not pristine. The district court found as a fact that Cookson rejected Dudley’s attempted purchase by informing him that “once [the clerk] had refused to sell him alcohol, the store policy was not to reverse that decision under any circumstances.”
Dudley II,
That ends this aspect of the matter. When a district court chooses between two plausible but conflicting interpretations of the evidence, its choice cannot be clearly erroneous.
4
Valentin v. Hosp. Bella Vista,
These factual findings also guide us through Hannaford’s remaining two arguments. Its claim that “Dudley failed to prove that Hannaford’s breach of its duty of reconsideration proximately caused any harm to Dudley,” Appellant’s Br. at 39, rests on the surmise that if Hannaford’s employees had given Dudley due reconsideration, they nonetheless would have thought him three sheets to the wind and refused the sale. This is an interesting but . irrelevant hypothetical. Our focus is on the exclusionary effect оf Hannaford’s policy—its unrelenting refusal to reconsider, come what may—and the only issue before us is whether a reasonable modification was necessary to afford disabled persons (like Dudley) access to goods that are available to individuals without disabilities.
See
Finally, Hannaford suggests that if it had a general duty to reconsider, that duty was superseded by Dudley’s aggressive behavior. Passing over the fact that Dudley’s behavior probably is pаrt and parcel of the symptomatology related to his disabling condition, the fallacy of this suggestion lies in its construction. In this situation, the ADA proscribes mechanical resort to an inflexible “refusal to reconsider” policy. Dudley’s behavior subsequent to the store’s decision not to sell is simply irrelevant to a determination of whether the “refusal to reconsider” policy is consistent with the ADA. 5
We have said enough on this score. All equitable remedies are, in some sense, discretionary.
Rosario-Torres v. Hernandez-Colon,
D. The MHRA Claim.
Hannaford alsо challenges the district court’s ruling that Hannaford’s “refusal to
It is settled law that the MHRA should be construed and applied along the same contours as the ADA.
See, e.g., Abbott v. Bragdon,
There are, however, differences between the two statutory schemes, and two such differences are material here. Unlike Title III of the ADA, the enforcement provisions of the MHRA allow the court both to assess monetary penalties (up to $10,000 against a first-time offender) and to award reasonable attorneys’ fees to a prevailing plaintiff.
See
Here, however, the MHRA complaint was filed out of time.
6
In the circumstances of this case, that fact does not place the full panoply of statutory remedies out of reach. While an untimely complaint before the MHRC normally would preclude any award of civil penalties or attorneys’ fees, the MHRA allows those remedies to be granted if an untimely MHRA claim is joined with a claim that does not require administrative exhaustion.
See
IY. CONCLUSION
The ADA protects disabled individuals against policies that categorically deny them access to goods that are available to the general population. Even though Hannaford’s offending policy excludes only a tiny number of disabled' individuals, the' ADA demands that the interests of those individuals be protected.
Thus, we affirm the district court’s binary conclusion that Dudley’s single visit to the Gardiner store is sufficient, in the circumstances of this case, to state a claim under
At the expense of belaboring what should be obvious, we emphasize that although we strike down Hannaford’s “refusal to reconsider” policy, we do so believing that the ADA leaves significant room for merchants to devise alternative, ADA-compliant strategies to ensure the safe sale of alcoholic beverages. Nothing in our holding prevents merchants from exercising caution in determining whether an individual is sufficiently sober to purchase alcoholic beverages. By the same token, nothing in our holding guarantees any in
We need go no further. For the foregoing reasons, we affirm the lower court’s determination that Hannaford’s hard-and-fast “refusal to reconsider” policy is in violation of both the ADA and the MHRA. Consequently, we uphold the injunction, the civil penalty, and the award of counsel fees.
Affirmed.
Notes
. The testimony is uncontradicted that Dudley spent the entire day effectuating the move. There is no evidence that he cоnsumed any alcoholic beverages during that time span.
. In any event, this ruling enjoys substantial support.
See, e.g., Pickern v. Holiday Quality Foods Inc.,
. This court has not addressed the meaning of "futile gesture” as that phrase is used in
. Hannaford makes much of Fossett's subsequent conversation with Dudley, claiming that Fossett at that time independently evaluated Dudley’s cognitive state and used that evaluation to ground his refusal to reconsider. This argument overlooks the district court’s supportable finding that this later.interaction was not causally connected either to the denial of the sale or to the refusal to reconsider.
Dudley II,
. We do not gainsay that, had Hannaford’s employees given Dudley fair reconsideration, his behavior would be relevant (although not necessarily conclusive) in making a judgment as to whether he was intoxicated. Here, however, the lower court’s factual findings foreclose that analytic path.
. The record reflects some disagreement as to when Dudley submitted his complaint to the MHRC. Under either party’s scenario, however, the complaint was not timely.
See