Number range CHAPTER UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

UNITED STATES OF AMERICA, )

)

Plaintiff )

)

vs. ) Civil Action No. 03:2061 B

)

CENTURY MANAGEMENT, LLC, )

FRED TILLMAN, and )

McDONALD'S CORPORATION, )

)

Defendants )

UNITED STATES' RESPONSE TO DEFENDANTS'

MOTION FOR SUMMARY JUDGMENT

**I. INTRODUCTION**

The defendants' Motion for Summary Judgment is pre-mature and should not
be granted given the current status of the case. Furthermore, the
defendants erroneously assert that the United States is under an
affirmative obligation to demonstrate that the Attorney General has
discharged his duty to investigate alleged violations of Title III of
the Americans with Disabilities Act (ADA) as a condition precedent to
commencing an enforcement action by filing a complaint in District
Court. The defendants also erroneously assert the United States must
plead and be prepared to prove facts supporting the Attorney General's
determination that reasonable cause exists to believe that any person or
group of persons is engaged in a pattern or practice of discrimination
or that any person or group of persons has been discriminated against in
violation of the ADA and that such discrimination raises an issue of
general public importance as a condition precedent to filing and
maintaining an enforcement action in District Court.

**II. ALTERNATIVE STATEMENT OF UNDISPUTED FACTS**

The Statement of Undisputed Facts in the Defendants' Motion for Summary
Judgment primarily relate to matters occurring between counsel for the
plaintiff and counsel for the defendants prior to the filing of the
United States complaint on January 28, 2003. However, the United States
does not believe that the facts recited by the defendants are material
to the issues raised by the defendant. In addition the facts recited by
the defendants do not include any references to matters occurring during
the two years of investigation and negotiation between the United States
and representatives of Century Management prior to Mr. Henderson
undertaking representation of the defendants.

Nevertheless, there are certain facts which are relevant to the issue of
whether the Motion for Summary Judgment is premature. In addition,
though the United States argues that the defendant may not challenge the
adequacy of the Attorney General's pre-complaint investigation and
reasonable cause determination, there are also certain facts relevant to
same**.** These facts are summarized as follows:

1\. On July 3, 2003, the plaintiff served the defendants with
plaintiff's First Set of Interrogatories and First Requests for
Production of Documents. (Exhibit 1--Declaration of Gary Vanasek)

2\. On August 4, 2003, counsel for the defendants requested an
additional 30 days to file responses to the plaintiff's interrogatories
and requests for production of documents. The United States consented to
this extension. (Exhibit 1 and Exhibit 2--Letter memorializing
agreement)

3\. On September 5, 2003, counsel for the defendants made a further
request to extend the date for responding to plaintiff's interrogatories
and requests for production of documents until September 12, 2003. The
United States consented to this extension. (Exhibit 1 and Exhibit
3--Letter memorializing agreement.)

4\. On September 12, the defendants' counsel mailed "answers" to
plaintiff's interrogatories and requests for production of documents.
(Collective Exhibit 4--Century Management's Answers to Plaintiff's First
Set of Interrogatories, Century Management's Answers to Plaintiff's
First Requests for Production of Documents, Fred Tillman's Answers to
Plaintiff's First Set of Interrogatories, and Fred Tillman's Answers to
Plaintiff's First Requests for Production of Documents.)

5\. On September 19, 2003, counsel for the defendants called the
attorney's for the United States and apologized for filing the documents
described as Collective Exhibit 4 and promised to follow up with
substantive responses not later than September 24, 2003. (Exhibit 1)

6\. On September 24, 2003, the defendants' attorney faxed a letter to
the attorneys for the United States requesting the entry of a protective
order relative to financial information requested in the plaintiff's
requests for production of documents. (Exhibit 5--Letter dated September
24, 2003, from Thomas Henderson)

7\. The Protective Order referenced above was entered by the Court on
October 6, 2003. (Exhibit 6--filed copy of protective order)

8\. Counsel for the United States expected the defendants to file
substantive responses to the interrogatories and requests for production
of documents shortly after entry of the protective order. (Exhibit 1)

9\. On October 27, 2003, the United States filed a Motion to Compel the
defendants to respond the the Plaintiff's First Set of Interrogatories
and First Requests for Production of Documents. (Exhibit 1)

10\. In a letter dated June 15, 2000, the United States advised
defendant Fred Tillman of its investigation of alleged violations of
Title III of the Americans with Disabilities Act by McDonald's
restaurants owned and/or operated by him. Exhibit 7--Letter to Fred
Tillman)

11\. On July 21, 2000, counsel for the United States met with attorney
Stephen Wakefield and management representatives of Century Management
to discuss options for resolving the ADA allegations. (Exhibit 1)

12\. At this meeting the parties agreed that the United States should
conduct a preliminary survey of a representative group of restaurants
managed by Century Management. (Exhibit 1 and Exhibit 8--Letter to
Stephen Wakefield)

13\. On August 31, 2000, and thereafter the United States conducted ADA
compliance surveys of ten McDonald's restaurants managed by Century
Management. (Exhibit 1)

14\. On December 11, 2000, counsel for the United States sent a letter
to attorney Stephen Wakefield advising him of the survey results and
indicating that the United States believed that the items listed in an
attachment to the letter constituted barriers to access for persons with
disabilities and could be removed in a readily achievable manner.
(Exhibit 9)

**III. ARGUMENT**

**A. The Defendants' Motion for Summary Judgment is pre-mature because
the plaintiff has not had an opportunity to make full discovery.**

The Supreme Court cases defining the contours of summary judgment
practice under Fed. R. Civ. Pro. 56 contemplate that such a motion will
be regarded as premature if the nonmoving party has not had an
opportunity to make full discovery. *Celotex Corporation v. Catrett,*
106 S. Ct. 2548, 2554, 477 U.S. 317 (1986), *Anderson v. Liberty Lobby,
Inc.*, 106 S.Ct. 2505, 2508, 477 U.S. 242 (1986), *See* *Street v. J.C.
Bradford & Company*, 886 F.2d 1472, 1478 (6^th^ Cir. 1989). The
defendants assert that "\[D\]espite ample discovery opportunity,
Plaintiff has made no suggested accommodations nor has Plaintiff shown
them to be 'readily achievable.'" While it might be said that a
significant amount of time has elapsed since the plaintiff was allowed
to commence discovery following entry of the first Scheduling Order on
May 27, 2003, it would not be accurate to conclude that the plaintiff
has had ample time for discovery. On July 3, 2003, the plaintiff served
the defendants with plaintiff's First Set of Interrogatories and First
Request for Production of Documents. On August 4, 2003, counsel for the
defendants contacted the United States requesting a 30 day extension,
until September 5, 2003, to file responses to interrogatories and
requests for production of documents. The United States' consent is
memorialized in a letter dated August 5, 2003. On September 5, 2003,
counsel for the defendants again contacted the United States requesting
a further extension until September 12, 2003, to respond to plaintiff's
discovery requests. The United States consent to this request is
memorialized in a letter dated September 5, 2003. On September 12, 2003,
the defendants mailed their "answers" to plaintiff's First Set of
Interrogatories and First Requests for Production of Documents, which
amounted to an objection to each and every interrogatory and request for
production of documents. On September 19, 2003, counsel for the United
States spoke with counsel for defendants, Mr. Henderson. Mr. Henderson
apologized to the United States and told counsel for plaintiff that
defendants objected to the discovery requests because he had been busy
with another matter and did not have time to prepare responses. Mr.
Henderson assured counsel for plaintiff that he would serve amended
responses to Plaintiff's discovery requests no later than September 24.

On September 24, 2003, defendants' counsel faxed to plaintiff a
letter[^1] requesting a Consent Protective Order. Though plaintiff had
no objection to entering a protective order, September 24^th^ was the
first time defendants had mentioned a protective order since they
received service of plaintiff's discovery requests on July 3, 2003.
Nevertheless, the United States did not oppose the entry of a protective
order and same was filed with the Court on October 6, 2003. It was the
understanding of the plaintiff that following the entry of the
protective order, substantive responses to its discovery requests would
be immediately forthcoming from the defendants. To date the plaintiff
has not received the promised amended responses to its discovery
requests.

On October 27, 2003, the plaintiff filed a Motion to Compel Century
Management, LLC and Fred Tillman to Respond to Plaintiff's First Set of
Interrogatories and First Request for Production of Documents. On
October 31, 2003, the Court entered an Order of Reference referring the
plaintiff's motion to the Magistrate for determination. The Motion to
Compel remains pending with the Magistrate as of the date of the filing
of this pleading.

Under the circumstances recited above it is disingenuous for the
defendants to assert that the plaintiff has had ample time for
discovery. The United States cannot assert that the defendants'
objections to the interrogatories and requests for production of
documents were not made in good faith. However, the facts remain that
the defendants filed no response to these discovery requests for more
than 60 days after issuance, then created further delay by promising to
amend their objections to provide substantive responses, ultimately
failing to do so, and finally forced the plaintiff to seek the
assistance of the Court by filing a Motion to Compel which has remained
pending for nearly two and a half months as a result of the Court's busy
schedule.

**B. The statutorily mandated investigation of alleged violations of the
ADA and the requirement that the Attorney General have reasonable cause
to believe that a person or persons have engaged in a pattern or
practice of discrimination or that an allegation of discrimination
raises an issue of general public importance are not conditions
precedent which must be pled and proven by the United States in filing a
complaint to enforce the ADA.**

The defendants allege that the Attorney General did not investigate the
alleged violations of Title III of the ADA prior to filing suit as
required by 42 U.S.C. §12188(b)(1)(A) and thus could not have formed a
reasonable cause to believe that the defendants have engaged in a
pattern or practice of discrimination or that any such discrimination
raises an issue of general public importance required by 42 U.S.C.
§12188(b)(1)(B). However, in [United States v. International Association
of Bridge, Structural and Ornamental Ironworkers]{.underline} the 7^th^
Circuit Court of Appeals rejected the defendant's Motion to Dismiss the
government's enforcement action pursuant to §707(a) of the Civil Rights
Act of 1964, 42 U.S.C. §2000e-6, premised on the failure of the
government to show that the Attorney General had reasonable cause to
believe that a pattern or practice of discrimination existed. [United
States v. International Association of Bridge, Structural and Ornamental
Ironworkers]{.underline}, 438 F.2d 679 (7^th^ Cir. 1971). In rejecting
the defendant's argument the Court noted,

Federal Courts have consistently held that the Attorney General need not
plead his "reasonable cause to believe" that discrimination exists.
[United States v. Building and Const. Tr. Comm. Of St. Louis,
Mo.]{.underline} 271 F.Supp. 447, 452 (E.D.Mo. 1966); [United States by
Clark v. IBEW Local 683]{.underline}, 270 F.Supp. 233, 235 (S.D.Ohio
1967). Other district courts have denied motions for interrogatories
aimed at discovery of the factual basis for determination of the
Attorney General's reasonable cause to believe. [United States v. IBEW
Local 309]{.underline}, Civil No. 6910 (E.D.Ill filed July 2, 1969);
[United States v. Building and Const. Tr. Comm. Of St. Louis,
Mo.]{.underline} [supra]{.underline}. [Id]{.underline}. at 681.

The Court concluded that the only issue for the trial court is "whether
there has been a violation of the statute and not whether the Attorney
General has reasonable cause to believe there was a violation."
[Id]{.underline}. In a footnote following this holding the Court cites
from the legislative history of §707 as follows: "Congressman Cellar,
the floor manager in the House , stated: 'Finally, the statute contains
the usual directive to the Attorney General that he should have
reasonable cause before he sues, but of course, he--not the
court--decides whether reasonable cause exists, and the issue of
reasonable does not present a separate litigable issue.' 110 Cong. Rec.
15895 (1964)." [Id]{.underline}. [See]{.underline} [United States v.
City of Yonkers]{.underline}, 592 F.Supp 570 (S.D.N.Y. 1984); [United
States v. Philadelphia Electric Co.]{.underline}, 351 F.Supp. 1394,
1398-99 (E.D.Pa. 1972). [But see]{.underline} [United States v. State of
North Carolina]{.underline}, 914 F.Supp. 1257 (E.D.N.C. 1996).

Based on the widely accepted principle that the Attorney General's
reasonableness cause determination may not be challenged by defendants
seeking dismissal of a case, the Court should find that the defendants'
Motion for Summary Judgment is not well founded.

**C.** **If inquiry into the validity of the Attorney General's
reasonable cause determination was permissible, the Attorney General
conducted an appropriate investigation and made an appropriate
determination that reasonable cause existed to believe that the
defendants engaged in a pattern or practice of discrimination and that
the allegation of discrimination raised issues of general public
importance.**

Without conceding the necessity for making such a showing, the United
States is compelled to correct the defendants' assertion that the
Attorney General did not investigate the alleged violations of Title
III. The United States advised defendant Fred Tillman of its
investigation of violations of Title III of the ADA in a letter dated
June 15, 2000. On Friday July 21, 2000, representatives of the United
States Attorney's Office met with attorney Stephen Wakefield and
management representatives of Century Management, to discuss options for
resolving the complaint. At this meeting the parties agreed that the
United States should conduct a preliminary survey of a representative
group of restaurants managed by Century Management. On August 31, 2000,
and thereafter the United States conducted surveys of ten McDonald's
restaurants. On December 11, 2000, the United States Attorney wrote a
letter to Stephen Wakefield advising him of the survey results and
indicating that the United States believed that the items constituting
barriers as listed in the attachment to the letter could be removed in a
readily achievable manner.

The United States is confident that the surveys conducted by the United
States Attorney as outlined above provided more than a sufficient basis
for the Attorney General's reasonable cause certification.

**III. CONCLUSION**

For the foregoing reasons the Defendants' Motion for Summary Judgment
should be denied.

Respectfully submitted,

TERRELL L. HARRIS

United States Attorney

By:

Gary A. Vanasek (BPR 4675)

Harriett Miller Halmon (BPR 005320)

Assistant U.S. Attorney

Suite 800

167 N. Main Street

Memphis, TN 38103

Telephone: (901) 544-4231

[^1]: ^?^Though the date on Defendants' letter is September 5, 2003, the
    fax tag line indicates that the letter was sent on September 24.