Schutza v. Costco Wholesale Corporation

• Court: District Court, S.D. California
• Decided: July 7, 2021
• Docket: 3:19-cv-00990
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 Case No. 19-cv-00990-DMS (WVG) SCOTT SCHUTZA, 11 FINDINGS OF FACT AND Plaintiff, CONCLUSIONS OF LAW 12 v. 13 COSTCO WHOLESALE 14 CORPORATION, a Washington Corporation; and DOES 1-10, 15 Defendants. 16

17 Plaintiff Scott Schutza filed his Complaint in this case on May 27, 2019, 18 against Defendant Costco Wholesale Corporation (“Defendant” or “Costco”), 19 alleging one claim for violation of the Americans with Disabilities Act (“ADA”) and 20 one claim for violation of the California Unruh Civil Rights Act (“Unruh Act”). 21 Plaintiff alleges Defendant discriminated against him on the basis of disability by 22 failing to provide a lowered counter for membership services and failing to modify 23 a policy, practice, or procedure in order to accommodate his disability. 24 The matter was tried to the Court on June 21, 2021. James Boyd appeared on 25 behalf of Plaintiff, and Charles Valente and Heather Kuhn O’Toole appeared on 26 behalf of Defendant. For the reasons set forth below, the Court finds in favor of 27 Plaintiff on both claims. I. 1 FINDINGS OF FACT 2 Defendant Costco operates warehouse membership clubs throughout the 3 United States, at which it sells goods and services to its members. The parties 4 stipulate that at all relevant times, Defendant was the owner and operator of a 5 warehouse at 101 Town Center Parkway in Santee, California (“the Store”). (Pretrial 6 Conference Order, ¶ 5a.) The Store is a place of public accommodation and a 7 business establishment. (Id. ¶ 5b.) Plaintiff is a Costco member, and the Store is 8 the location he frequents the most. (Schutza Trial Test. 2.) Plaintiff has a T-5 9 complete spinal cord injury and cannot walk; he uses a wheelchair for mobility. 10 (Schutza Trial Test. 1–2.) 11 In April 2018, Plaintiff visited the Store and wanted to discuss his membership 12 information. (Schutza Trial Test. 2.) The Store has a service counter for 13 membership services. On the wall behind this counter is a sign which reads 14 “MEMBERSHIP.” (Pl.’s Ex. 4.) The main portion of the counter, located in front 15 16 of the sign, is too high for Plaintiff to use comfortably. (Schutza Trial Test. 5, 6–7.) 17 As the Court previously found, there is no genuine dispute that this raised counter is 18 over 36 inches high and therefore does not comply with ADA counter height 19 requirements. (ECF No. 45 at 8.) Attached to this counter is a lowered counter, 20 situated perpendicular to the raised portion. (Pl.’s Ex. 8; Schutza Trial Test. 4–5.) 21 The parties stipulate that this lowered counter complies with the ADA’s 22 requirements for counter height. Hanging above the lowered counter is a sign 23 reading “MERCHANDISE RETURNS.” (Pl.’s Ex. 8.) There are separate lines for 24 the lowered counter and the raised counter. (Schutza Trial Test. 6; Pl.’s Ex. 6.) The 25 entry point to the line for the lowered counter is through an external door bearing a 26 sign that reads “MERCHANDISE RETURNS.” (Schutza Trial Test. 6; Pl.’s Ex. 5.) 27 Plaintiff approached the raised service counter and asked a Store employee if he “No, I am sorry, you can’t.” (Schutza Trial Test. 7.) Plaintiff had to use the raised 1 counter, which he found uncomfortable and embarrassing. (Schutza Trial Test. 7.) 2 The Court credits Plaintiff’s testimony with respect to this visit in its entirety. 3 Although Plaintiff further testified about a September 2018 visit to the Store, 4 the Court declines to credit Plaintiff’s testimony with respect to this visit given that 5 Plaintiff failed to discuss it in his May 12, 2020 Amended Responses to Defendant’s 6 Interrogatories.1 (Def.’s Ex. C.) 7 II. 8 CONCLUSIONS OF LAW 9 Plaintiff alleges the following claims: (1) violation of the Americans with 10 Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.; and (2) violation of the 11 California Unruh Civil Rights Act, California Civil Code § 51. 12 As a threshold matter, Defendant challenges Plaintiff’s standing to assert his 13 claims. Defendant argues Plaintiff lacks standing to seek an injunction because his 14 experience at the Store in April 2018 was a one-time event and is unlikely to recur. 15 16 Defendants’ standing argument is addressed first, followed by a discussion of each 17 of Plaintiff’s claims for relief. 18 A. Standing 19 Plaintiff has sufficiently established standing to seek injunctive relief in this 20 case. “[T]o establish standing to pursue injunctive relief, which is the only relief 21 available to private plaintiffs under the ADA, [a plaintiff] must demonstrate a ‘real 22 and immediate threat of repeated injury’ in the future.” Chapman v. Pier 1 Imports 23 (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (en banc) (citing Fortyune v. Am. 24 Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). The “Supreme Court has 25 instructed [courts] to take a broad view of constitutional standing in civil rights cases, 26

27 1 In his Complaint, Plaintiff makes additional allegations regarding two visits to the especially where, as under the ADA, private enforcement suits ‘are the primary 1 method of obtaining compliance with the Act.’ ” Doran v. 7–Eleven, Inc., 524 F.3d 2 1034, 1039 (9th Cir. 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 3 209 (1972)). “[A]n ADA plaintiff demonstrates a sufficient likelihood of future 4 harm to establish standing to sue for an injunction when he intends to return to a 5 noncompliant place of public accommodation where he will likely suffer repeated 6 injury.” Chapman, 631 F.3d at 948. 7 Plaintiff has done so here. Plaintiff testified he is currently a Costco member 8 and the Store is the location he frequents the most. For the reasons discussed below, 9 the Store’s membership services counter does not comply with ADA standards, and 10 the Store’s policy has a discriminatory effect upon customers in wheelchairs seeking 11 membership services. Plaintiff has thus established a real and immediate threat that 12 the injury will be repeated, which is sufficient to permit him to seek injunctive relief. 13 14 B. ADA Violation 15 Title III of the ADA prohibits discrimination by public accommodations. 42 16 U.S.C. § 12182(a). To prevail on a claim for discrimination under Title III of the 17 ADA, Plaintiff must show (1) he is disabled under the definitions provided by the 18 ADA, (2) Defendant is “a private entity that owns, leases, or operates a place of 19 public accommodation,” and (3) Plaintiff “was denied public accommodations . . . 20 because of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 21 2007). There is no dispute that Plaintiff is disabled within the meaning of the ADA, 22 or that Defendant owned and operated the Store, a place of public accommodation. 23 The Court accordingly turns to the third element—whether Plaintiff suffered 24 discrimination because of his disability. 25 Plaintiff alleges two theories of discrimination under the ADA: (1) the Store’s 26 membership service counter is an architectural barrier because there is no lowered 27 portion available for membership services in violation of the ADA Accessibility modifications to its policies, practices, or procedures to accommodate Plaintiff. 1 Defendant contends (1) the lowered counter was available for membership services 2 and is therefore not an architectural barrier, and (2) Defendant has no policy that 3 denies Plaintiff access to the lowered counter for membership services. 4 1. Architectural Barrier 5 There is no dispute that Defendant had a lowered counter connected to the 6 membership services counter or that the lowered counter complied with ADA 7 counter height requirements. Rather, Plaintiff alleges that because the lowered 8 counter was provided for merchandise returns, Defendant discriminated against him 9 by failing to provide a lowered counter for membership services. 10 Discrimination “on the basis of disability includes a failure to remove 11 architectural barriers where such removal is readily achievable.” Doran, 524 F.3d at 12 1043 (quoting 42 U.S.C. § 12182); see Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 13 1150, 1158 (S.D. Cal. 2006). If a physical element of a place of public 14 accommodation does not meet or exceed the ADAAG, codified at 36 C.F.R. Pt. 1191, 15 16 it is an architectural barrier under the ADA. See 28 C.F.R. § 36.406(a); 28 C.F.R. 17 Pt. 36, App. A; Chapman, 631 F.3d at 945. A plaintiff can establish discrimination 18 by showing a violation of applicable accessibility standards. See Chapman, 631 F.3d 19 at 945. Plaintiff contends Defendant violated the ADAAG requirement to provide 20 “at least one type of each sales counter and service counter” at an accessible height 21 by failing to provide a lowered counter for membership services. 28 C.F.R. Pt. 1191 22 App. B § 227.3. 23 The Court finds the lowered counter was not provided for membership 24 services within the meaning of this section. Defendant argues the lowered counter 25 was available for both types of service—merchandise returns and membership 26 services—and presented evidence that it may be technically feasible for employees 27 to assist a customer with membership services at the lowered counter. The Store’s transaction can be taken care of at the lowered counter (Salas Trial Test. 10), and 1 employee Myshell Taylor testified that she has provided membership assistance to 2 customers in wheelchairs at the lowered counter. (Taylor Trial Test. 4–5.) 3 Although it may be possible to assist customers with membership services at 4 the lowered counter, the current configuration and signage of this area of the store 5 do not readily indicate that the lowered counter is provided for those services. The 6 raised counter and the lowered counter have signs denoting “MEMBERSHIP” and 7 “MERCHANDISE RETURNS,” respectively, as well as separate lines for each 8 counter. Indeed, the line for the counter marked ‘returns’ is partially separated by a 9 rail and is accessed from outside the store through an external door. Mr. Salas 10 acknowledged that the signs are there “to distinguish between merchandise returns 11 and membership services” and that the general protocol is that customers “follow 12 the signs.” (Salas Trial Test. 19.) He further testified that if a customer rolled up to 13 the merchandise returns line and requested membership services, the employees “are 14 going to ask [the customer] to step over to the membership side.” (Salas Trial Test. 15 16 24.) Moreover, Ms. Taylor testified that the register at the lowered counter “is 17 designed for refunds” and that from that register, she cannot pull up a membership 18 services screen, but needs to walk over to another screen a few feet away. (Taylor 19 Trial Test. 5, 9–10.) 20 Thus, because the lowered counter has a separate line and separate signage 21 indicating it is for ‘merchandise returns,’ and because it lacks the equipment 22 necessary to be used for membership services, the Court finds it is not a ‘membership 23 services’ type of counter. Its presence therefore is not sufficient to satisfy the 24 ADAAG’s requirement to provide “at least one type of each sales counter and 25 service counter” at an accessible height.2 28 C.F.R. Pt. 1191 App. B § 227.3; see 26 2 The 2010 ADA Standards Advisory explains that types of counters that provide 27 different services include order, pick-up, express, and returns. For example, because Whitaker v. Joe’s Jeans, Inc., No. 21-CV-00597-CRB, 2021 WL 2590155, at *3 1 (N.D. Cal. June 24, 2021) (finding defendant failed to provide accessible sales 2 counter because although there was a lowered portion of the counter, it lacked point- 3 of-sale equipment). Defendant accordingly fails to provide an accessible 4 membership services counter. The raised counter that is currently provided for 5 membership services is too high for Plaintiff to use. Plaintiff’s testimony establishes 6 that he personally encountered this barrier in April 2018, and it precluded his full 7 and equal access to the Store. Moreover, the Court finds that removal of this barrier 8 would be readily achievable, either by lowering a portion of the raised counter, or 9 reconfiguring the signage and lines to clearly indicate membership services are 10 available at the lowered counter. 11 2. Failure to Modify Policies, Practices, or Procedures 12 In addition to Defendant’s failure to provide an accessible membership 13 services counter, the Court finds Plaintiff suffered discrimination based on 14 Defendant’s failure to modify a policy, practice, or procedure. A plaintiff can 15 16 establish discrimination based on a public accommodation’s failure to modify 17 “policies, practices, or procedures” where (1) the defendant employed a 18 discriminatory policy or practice, and (2) the defendant failed to make a requested 19 reasonable modification to that policy or practice that was necessary to 20 accommodate the plaintiff’s disability. Fortyune, 364 F.3d at 1082, 1086; see 42 21 U.S.C. § 12182(b)(2)(A)(ii)) (discrimination includes “a failure to make reasonable 22

23 up at a different location on the same counter. Both the order and pick-up section of 24 the counter must be accessible.” Dep’t of Justice, 2010 ADA Standards for Accessible Design, Advisory 227.3 Counters, 25 https://www.ada.gov/regs2010/2010ADAStandards/2010ADAstandards.htm (last 26 visited June 29, 2021). Accordingly, here, where the signage and setup indicate that returns are processed at the lowered counter and membership services are handled 27 at a different, higher counter, it is not acceptable to provide access only to the counter modifications in policies, practices, or procedures, when such modifications are 1 necessary to afford such goods, services, facilities, privileges, advantages, or 2 accommodations to individuals with disabilities”). A failure to modify policies may 3 constitute discrimination even if a facility’s design complies with the ADAAG. See 4 Fortyune, 364 F.3d at 1084–85. 5 Defendant argues it cannot be liable for any failure to modify a policy because 6 it did not have a policy that was discriminatory, and in any event, Plaintiff never 7 asked for a modification of any policy. As Mr. Salas explained, Defendant does not 8 have a policy restricting the use of the lowered counter to returns. (Salas Trial Test. 9 9.) Nor does Defendant have a policy specifically requiring employees to assist a 10 customer in a wheelchair at the lowered counter upon request. (Salas Trial Test. 22, 11 25.)3 Rather, Mr. Salas testified that Defendant’s practice is to “educate and teach 12 our employees” to “do our best” to take care of a customer’s request, and “try to find 13 a way to say yes.” (Salas Trial Test. 3, 21, 25.) 14 “Actionable discrimination under federal discrimination statutes can take the 15 16 form of . . . ‘discriminatory effects’ of a failure to make reasonable modifications 17 under 42 U.S.C. § 12182(b)(2)(A)(ii).” Smith v. Walgreens Boots All., Inc., No. 20- 18 CV-05451-CRB, 2021 WL 391308, at *7 (N.D. Cal. Feb. 3, 2021) (citing Lentini v. 19 Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 846 (9th Cir. 2004); Crowder v. 20 3 Specifically, Mr. Salas testified as follows: 21 Q. ALL RIGHT. SO THERE IS NO POLICY DIRECTING [THE 22 STORE EMPLOYEES], EVEN IF [PLAINTIFF] REQUESTS IT, TO 23 ACTUALLY ACCOMMODATE HIM AND BRING HIM TO MERCHANDISE RETURNS. 24 A. THERE IS NO WRITTEN POLICY. 25 Q. OKAY. ALL RIGHT. AND NO TRAINING POLICY THAT YOU ARE AWARE OF. 26 A. WE EDUCATE OUR EMPLOYEES TO ASSIST OUR 27 MEMBERS THE BEST WAY THAT THEY POSSIBLY CAN. Kitagawa, 81 F.3d 1480, 1486 (9th Cir. 1996)). Indeed, “facially neutral policies 1 may constitute discrimination when they ‘disproportionately’ deny disabled persons 2 access to places of public accommodation ‘due to’ those persons’ disabilities.” Id. 3 (citing Crowder, 81 F.3d at 1483; McGary v. City of Portland, 386 F.3d 1259, 1266– 4 67 (9th Cir. 2004)). 5 The Court finds that because Defendant’s facially neutral policy or practice 6 directing employees to ‘do their best’ to assist all customers gives employees broad 7 discretion, it disproportionately denies wheelchair users access to membership 8 services. There is no specific training, directive, or policy that if a person in a 9 wheelchair asks to be serviced at the lowered counter, that employees must do so. 10 (Salas Trial Test. 25–26.) Rather, because employees are simply trained to ‘do their 11 best’ to assist customers, the decision whether to permit a customer in a wheelchair 12 to be helped at the lowered counter will be at the employee’s discretion. Mr. Salas 13 testified: “I think if an individual that came up that was in a wheelchair and needed 14 some services, we would do our best to try to help them out.” (Salas Trial Test. 21.) 15 16 However, he does not know what a particular employee might do in any given 17 instance, and stated a store employee might not know what course of action is 18 preferred when a customer in a wheelchair requests assistance. (Salas Trial Test. 21– 19 22.) Under this broad practice, it is therefore more likely that a wheelchair user will 20 be denied access to membership services at the lowered counter compared to a 21 customer who does not require the use of a lowered counter, resulting in 22 discrimination like the type suffered by Plaintiff. Indeed, Mr. Salas admitted it was 23 possible that an employee might say “sir, I’m sorry, I can’t help you at that [lowered] 24 window” to a person in a wheelchair if the person approached the higher counter for 25 membership services and there was a long line at the lowered counter. (Salas Trial 26 Test. 20–21.) 27 The Court thus finds that Defendant’s policy or practice to ‘do its best’ to the lowered counter. In April 2018, Plaintiff asked to be helped with membership 1 services at the lowered counter, effectively requesting a modification of the policy, 2 and Defendant’s employee denied his request. His requested modification would be 3 reasonable, because as Defendant’s witnesses testified, it would be possible to 4 provide some form of membership assistance at the lowered counter.4 Defendant 5 failed to make a requested reasonable modification to its policy that was necessary 6 to accommodate Plaintiff’s disability. Accordingly, Defendant is liable under the 7 ADA for a failure to modify its policy, practices, or procedures. 8 C. Unruh Act Violation 9 The Unruh Act provides for “full and equal accommodations, advantages, 10 facilities, privileges, or services in all business establishments” for “all persons . . . 11 no matter what their . . . disability.” Cal. Civ. Code § 51(b). “[A] violation of the 12 ADA is, per se, a violation of the Unruh Act.” Lentini, 370 F.3d at 847; see Cal. Civ. 13 Code § 51(f). Moreover, “no showing of intentional discrimination is required when 14 the Unruh Act violation is premised on an ADA violation.” Lentini, 370 F.3d at 847. 15 16 Plaintiff’s Unruh Act claim is wholly derivative of his ADA claim. Thus, 17 because Plaintiff has established Defendant’s liability under the ADA for his April 18 2018 visit to the Store, Defendant is also liable for a violation of the Unruh Act. 19 D. Injunctive Relief 20 Based on the foregoing findings that Plaintiff has proved his claim for 21 violation of the ADA, the Court grants Plaintiff’s request for injunctive relief and 22 orders Defendant to remove the architectural barrier of the membership services 23 counter at the Store. Such removal would be achievable in several ways, including 24 but not limited to either (a) lowering a portion of the counter at membership services 25 to an accessible height or (b) reconfiguring the signage, customer lines, and 26 4 Defendant does not raise the defense that permitting Plaintiff to be helped at the 27 lowered counter would “fundamentally alter the nature of [its] goods, services, | equipment at the Store such that the existing lowered counter is clearly provided for 3 membership services. 3 E. Damages A Plaintiff seeks statutory damages under the Unruh Act, which provides for a 5 civil penalty of $4,000.00 for each violation. Cal. Civ. Code § 52(a) (stating court 6 || may award up to three times the amount of actual damages, and “in no case less than 7 four thousand dollars’). Plaintiff has established that an Unruh Act violation |joccurred in April 2018. Plaintiff does not claim actual damages, but rather seeks the g ||Statutory minimum of $4,000.00. (See Compl. Jf] 41-42, Prayer for Relief; Pretrial 19 |{Conterence Order § 2.) The Court accordingly awards Plaintiff $4,000.00 in 11 || Statutory damages for the April 2018 violation. 12 II. 13 CONCLUSION AND ORDER 14 Based on the foregoing findings of fact and conclusions of law, it is ordered 15 |[as follows: 16 1. Defendant shall remove the architectural barrier in the Store’s 17 membership services area by providing a lowered, accessible counter 18 for membership services; 19 2. Plaintiff shall recover $4,000.00 in damages from Defendant; 20 3. Plaintiff may file a separate motion for attorneys’ fees and costs 7] pursuant to Federal Rule of Civil Procedure 54(d); 72 4. The Clerk of Court shall enter judgment consistent with this Order. 3 IT IS SO ORDERED. 94 ||Dated: July 7, 2021 > 5 a Yn. Hon. Dana M. Sabraw, Chief Judge 26 United States District Court 27 28