UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.:

WINDY LUCIUS,

Plaintiff,

v.

EXXON MOBIL CORPORATION,

Defendant.

/

COMPLAINT FOR INJUNCTIVE RELIEF

Windy Lucius, (“Plaintiff”) by and through her undersigned counsel, hereby files this 

complaint and sues Defendant, EXXON MOBIL CORPORATION, a foreign profit corporation 

doing business in Florida and alleges as follows:

INTRODUCTION

1. Plaintiff Windy Lucius brings this action individually against EXXON MOBIL 

CORPORATION, (“Defendant”), alleging violations of Title III of the Americans with Disabilities 

Act, 42 U.S.C. § 12101 et seq., (hereinafter, “ADA”).

2. Plaintiff is blind. She uses the internet to help her navigate a world of goods, 

products and services like the sighted. The internet, websites and mobile applications provide her 

a window into the world that she would not otherwise have. She brings this action against 

Defendant for offering and maintaining a mobile application (software that is intended to run on 

mobile devises such as phones or tablet computers) that is not fully accessible and independently 

usable by visually impaired consumers. The mobile application (“app”) at issue is available 

through the Apple “app store” for download and installation on Apple devices. (hereinafter, 

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“app”). Defendant developed the app and made it available to millions of phone and tablet users 

in the Apple app store.

3. Plaintiff is also an advocate of the rights of similarly situated disabled persons and 

is a “tester” for the purpose of asserting her civil rights and monitoring, ensuring, and determining 

whether places of public accommodation and/or their websites are in compliance with the ADA.

4. Defendant offers its app to the general public from which it offers a rewards 

program that enables customers to earn and redeem points on fuel, car washes and convenience 

stores purchases. Defendant’s apps allow mobile device users to use a mobile platform through a 

connection to Wi-Fi or cellular data so that users can pay for fuel and manage their rewards from 

their mobile device. As such, it hassubjected itself to the ADA because Defendant’s app is offered 

as a tool to promote, advertise and sell its products from its brick and mortar locations, which are 

places of public accommodation. As a result, the app must interact with Defendant’s stores and 

the public, and in doing so must comply with the ADA, which means it must not discriminate 

against individuals with disabilities and may not deny full and equal enjoyment of the goods and 

services afforded to the general public.

5. Blind and visually impaired consumers must use the assistive technology on the 

iPhone to access app content. The app must be designed and programmed to work with the assistive 

technology available on the iPhone. Defendant’s app, however, contains digital barriers which 

limit the ability of blind and visually impaired consumers to access it, even with Apple’s assistive 

technology.

6. Defendant’s app does not properly interact with Apple’s assistive technology in a 

manner that will allow the blind and visually impaired to enjoy the app, nor does it provide other 

means to accommodate the blind and visually impaired.

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7. Plaintiff has downloaded and attempted to patronize Defendant’s app in the past 

and intends to continue to make further attempts to patronize Defendant’s app. Like the seeing 

community, she would like to be able to use the Defendant’s app to purchase merchandise, receive 

special sales or discounts, and make secure, contactless purchases so that viruses and bacteria are 

not transmitted to her at Defendant’s brick and mortar location in her neighborhood. However, 

unless Defendant is required to eliminate the access barriers at issue and required to change its 

policies so that access barriers do not reoccur on Defendant’s app, Plaintiff will continue to be 

denied full and equal access to the app as described and will be deterred from fully using 

Defendant’s app or fueling at the physical locations.

8. Plaintiff has attempted to utilize the app and/or plans to continue to attempt to 

utilize the app in the near future. In the alternative, Plaintiff intends to monitor the app in the near 

future, as a tester, to ascertain whether it has been updated to interact properly with screen reader 

software.

9. Plaintiff is continuously aware of the violations on Defendant’s app and is aware 

that it would be a futile gesture to attempt to utilize the app as long as those violations exist unless 

she is willing to suffer additional discrimination.

10. Plaintiff has suffered, and continues to suffer, frustration and humiliation as the 

result of the discriminatory conditions present at Defendant’s app. By continuing to operate its app 

with discriminatory conditions, Defendant contributes to Plaintiff’s sense of isolation and 

segregation and deprives Plaintiff the full and equal enjoyment of the goods, services, facilities, 

privileges and/or accommodations available to the general public. By encountering the 

discriminatory conditions at Defendant’s app, and knowing that it would be a futile gesture to 

attempt to utilize the app unless she is willing to endure additional discrimination, Plaintiff is 

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deprived of the meaningful choice of freely visiting and utilizing the same accommodations readily 

available to the general public and is deterred and discouraged from doing so. By maintaining an 

app with violations, Defendant deprives Plaintiff the equality of opportunity offered to the general 

public.

11. Plaintiff has suffered and will continue to suffer direct and indirect injury as a result 

of the Defendant’s discrimination until the Defendant is compelled to comply with the 

requirements of the ADA.

12. Plaintiff has a realistic, credible, existing and continuing threat of discrimination 

from the Defendant’s non-compliance with the ADA with respect to this app as described above. 

Plaintiff has reasonable grounds to believe that she will continue to be subjected to discrimination 

in violation of the ADA by the Defendant. Plaintiff desires to access the app to avail herself of the 

benefits, advantages, goods and services therein, and/or to assure herself that this app is in 

compliance with the ADA so that she and others similarly situated will have full and equal 

enjoyment of the app without fear of discrimination.

13. The ADA expressly contemplates the type of injunctive relief that Plaintiffseeks in 

this action. The ADA provides, in part:

[i]n the case of violations of . . . this title, injunctive relief shall include an 

order to alter facilities to make such facilities readily accessible to and 

usable by individuals with disabilities . . . Where appropriate, injunctive 

relief shall also include requiring the . . . modification of a policy . . .

42 U.S.C. § 12188(a)(2).

14. Therefore, Plaintiff seeks a declaration that Defendant’s app violates federal law 

as described and an injunction requiring Defendant to modify its app so that it is fully accessible 

to, and independently usable by, blind or visually impaired individuals. Plaintiff further requests 

that the Court retain jurisdiction of this matter for a period to be determined to ensure that 

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Defendant comes into compliance with the requirements of the ADA and to ensure that Defendant 

has adopted and is following an institutional policy that will, in fact, cause Defendant’s app to 

remain in compliance with the law.

JURISDICTION AND VENUE

15. This Court has federal question jurisdiction pursuant to 28 U.S.C. §1331 and 42

U.S.C. § 12188.

16. Plaintiff’s claims asserted herein arose in this judicial district and Defendant does 

substantial business in this judicial district where it has multiple physical locations.

17. Venue in this judicial district is proper under 28 U.S.C. § 1391(b)(1) and (2) in that 

this is the judicial district in which Defendant resides, and in which a substantial part of the acts 

and omissions giving rise to the claims occurred.

18. This Court has personal jurisdiction over EXXON MOBIL CORPORATION,

pursuant to, inter alia, Florida’s long arm statute F.S. § 48.193, in that Defendant: (a) operates, 

conducts, engages in, and/or carries on a business or business ventures (s) in Florida and/or has an 

office or agency in Florida; (b) has committed one or more tortious acts within Florida; (c) was 

and/or is engaged in substantial and not isolated activity within Florida; and/or (d) has purposely 

availed itself of Florida’s laws, services and/or benefits and therefore should reasonably anticipate 

being hailed into one or more of the courts within the State of Florida.

PARTIES

19. Plaintiff, Windy Lucius, is and, at all times relevant hereto, was a resident of the 

State of Florida, Miami-Dade County. Plaintiff is and, at all times relevant hereto, has been legally 

blind and is therefore a member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the 

regulations implementing the ADA set forth at 28 CFR §§ 36.101 et seq.

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20. Defendant EXXON MOBIL CORPORATION owns, operates and maintains 

multiple gas stations called EXXON MOBIL, within the Southern District of Florida, either 

through franchisees, affiliates, partners or other entities. Defendant’s store sells gas, food, and 

other goods to the public. Defendant also offers those items to the public through its app.

Defendant’s store and accompanying app work collectively and are public accommodations 

pursuant to 42 U.S.C. § 12181(7)(E).

FACTS

21. Defendant owns, operates and controls an app from which it sells gas, car washes 

and convenience store purchases. They sell those same goods from their corresponding brick and 

mortar stores. Defendant’s app helps users locate gas stations, earn and redeem points on fuel, car 

washes, and a variety of other functions.

22. Defendant’s app is a nexus to a place of public accommodation pursuant to 42 

U.S.C. § 12181(7)(E). Therefore, under the ADA, Defendant must ensure that individuals with 

disabilities have access to full and equal enjoyment of the goods and services offered on its app.

23. Blind and visually impaired individuals may access apps by using accessibility 

features in conjunction with screen reader software that converts text to audio. Screen reader 

software provides the primary method by which a visually impaired person may independently use 

the internet. Unless the app is designed to be accessed with screen reader software, visually 

impaired individuals are unable to fully access app and the information, products, and services 

available through the app.

24. The international app standards organization, W3C, has published WCAG 2.1 A 

and WCAG 2.1 AA (Version 2.0 of the Web Content Accessibility Guidelines). WCAG 2.1 A and 

WCAG 2.1 AA provide widely accepted guidelines for making apps accessible to individuals with 

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disabilities and compatible with screen reader software. These guidelines have been endorsed by 

the United States Department of Justice and numerous U.S. District Courts.

25. Plaintiff is legally blind and uses VoiceOver screen reader software (hereinafter, 

“Plaintiff’s software”) in order to access app content. Plaintiff’s software is themost popular screen 

reader software utilized worldwide by visually impaired individuals for Apple tablets and phones.

26. Despite attempts, Defendant’s app did not integrate with Plaintiff’s software, nor 

was there any function within the app to permit access for visually impaired individuals through 

other means. Her attempts to use the app were futile because the app was inaccessible. Therefore, 

Plaintiff was denied the full use and enjoyment of the goods and services available on Defendant’s 

app as a result of access barriers on the app. For example, VoiceOver users become stuck on one 

of the introduction screens and cannot continue.

27. Defendant’s app does not meet the WCAG 2.1 A level of accessibility. As to 

WCAAG guideline 1.3.1 – Info and Relationships, information, structure, and relationships 

conveyed through presentation can be programmatically determined or are also available in text. 

Here, required fields are not indicated on the form prior to submission. As to WCAG guideline 

2.1.2 – No Keyboard Trap, the app should not trap keyboard users (ensure users are not trapped in 

content and can move to and from components as well as focus with only a keyboard). Here,

VoiceOver users become trapped on the location screen. The issue is that the close button does not 

receive focus and is not announced. The only option is to scan a QR code in order to proceed, 

which is not possible for a blind user. Focus only moves between the text and button so there are 

no options for VoiceOver users to leave this screen. Users can only click on the close button when 

VoiceOver is off. As to WCAAG guideline 3.3.1 – Error Identification, input errors should be 

clearly identified. Here, errors are shown onscreen in red text, but are not announced. If a field is 

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left blank, once the form is submitted an error message appears onscreen in red text, but no notice 

is provided to screen-reader users. Users do not hear that an error was found so it appears that the 

form is simply not working.

28. Defendant’s app does not meet the WCAG 2.1 AA level of accessibility. As to 

WCAG guideline 3.3.3 – Error Suggestion, the app should suggest fixes when users make errors. 

Here, fields with errors are not announced to screen reader users. After submitting a form with 

errors, a user can navigate to each field but only hears the label announced. The suggestion text, 

shown onscreen in red, is not announced.

29. By failing to adequately design and program its app to accurately and sufficiently 

integrate with VoiceOver, Defendant has discriminated against Plaintiff and others with visual 

impairments on the basis of a disability by denying them full and equal enjoyment of the app, in 

violation of 42 U.S.C. § 12182(a) and C.F.R. § 36.201.

30. As a result of Defendant’s discrimination, Plaintiff was unable to use Defendant’s 

app and suffered an injury in fact including loss of dignity, mental anguish and other tangible 

injuries.

31. If Defendant’s app were accessible, Plaintiff could pay for gas and other services 

from Defendant’s stores online or brick and mortar locations, as well as utilize the otherfunctions 

on the app.

32. Plaintiff believes that although Defendant may have centralized policies regarding 

the maintenance and operation of its app, Defendant has never had a plan or policy that is 

reasonable calculated to make its app fully accessible to, and independently usable by, people with 

visual impairments.

33. Without injunctive relief, Plaintiff and other visually impaired individuals will 

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continue to be unable to independently use Defendant’s app in violation of their rights under the

ADA.

SUBSTANTIVE VIOLATION

(Title III of the ADA, 42 U.S.C. § 12181 et seq.)

34. The allegations contained in the previous paragraphs are incorporated by reference.

35. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: “No 

individual shall be discriminated against on the basis of a disability in the full and equal enjoyment 

the goods, facilities, privileges, advantages or accommodations of any place of public 

accommodation by any person who owns, leases (or leases to), or operates a place of public 

accommodation.” 42 U.S.C. § 12182(a).

36. Defendant’s stores and accompanying app are public accommodations within the 

definition of Title III of the ADA, 42 U.S.C. § 12181(7)(E).

37. Under Section 302(b)(2) of Title III of the ADA, it is unlawful discrimination to 

deny individuals with disabilities the opportunity to participate in or benefit from the goods,

services, facilities, privileges, advantages or accommodations of an entity. 42 U.S.C. § 

12182(b)(1)(A)(i).

38. Under Section 302(b)(2) of Title III of the ADA, it is unlawful discrimination to 

deny individuals with disabilities the opportunity to participate in or benefit from the goods, 

services, facilities, privileges, advantages or accommodations, which is equal to the opportunities 

afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii).

39. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also 

includes, among other things:

a failure to make reasonable modifications in policies, practices or 

procedures, when such modifications are necessary to afford such goods, 

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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; and a failure to take 

such steps as may be necessary to ensure that no individual with a disability 

is excluded, denied services, segregated or otherwise treated differently 

than other individuals because of the absence of auxiliary aids and services, 

unless the entity can demonstrate that taking such steps would 

fundamentally alter the nature of good, service, facility, privilege, 

advantage or accommodation being offered or would result in an undue 

burden.

42 U.S.C. § 12182(b)(2)(A)(ii) (iii); see also 28 C.F.R. § 36.303(a).

40. Title III requires that “[a] public accommodation shall furnish appropriate auxiliary 

aids and services where necessary to ensure effective communication with individuals with 

disabilities.” 28 C.F.R. § 36.303(c)(1). The regulations set forth numerous examples of “auxiliary 

aids and services,” including “...accessible electronic and information technology; or other 

effective methods of making visually delivered materials available to individuals who are blind or 

have low vision.” 28 C.F.R. § 36.303(b).

41. The acts alleged herein constitute violations of Title III of the ADA, and the 

regulations promulgated thereunder. Plaintiff, who is legally blind and has a disability that

substantially limits the major life activity of seeing within the meaning of 42 U.S.C. §§ 

12102(1)(A) and (2)(A), has been denied full and equal access to Defendant’s app. Plaintiff has 

not been afforded the goods, services, privileges and advantages that are provided to other patrons 

who are not disabled, and/or has been provided goods, services, privileges and advantages that are 

inferior to those provided to non-disabled persons. These violations are ongoing as Defendant has 

failed to make any prompt and equitable changes to its app and policies in order to remedy its 

discriminatory conduct.

42. Pursuant to 42 U.S.C. 12188 and the remedies, procedures and rights set forth and 

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incorporated therein, Plaintiff, on behalf of herself and on behalf of others similarly situated 

requests relief as set forth below.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of herself and others similarly situated prays for:

a. A Declaratory Judgment that at the commencement of this action Defendant was 

in violation of the specific requirements of Title III of the ADA described above, 

and the relevant implementing regulations of the ADA, in that Defendant took no 

action that was reasonably calculated to ensure that its app is fully accessible to, 

and independently usable by, blind individuals;

b. A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR § 36.504 

(a) which directs Defendant to take all steps necessary to brings its app into full 

compliance with the requirements set forth in the ADA, and its implementing 

regulations, so that its app is fully accessible to, and independently usable by, blind 

individuals, and which further directs that the Court shall retain jurisdiction for a 

period to be determined to ensure that Defendant has adopted and is following an 

institutional policy that will in fact cause Defendant to remain fully in compliance 

with the law;

c. Payment of costs of suit;

d. Payment of reasonable attorneys’ fees, pursuant to 42 U.S.C. § 12205 and 28 CFR

§ 36.505; and,

e. The provision of whatever other relief the Court deems just, equitable and 

appropriate.

Dated: May 14, 2020

Respectfully submitted,

/s/ J. Courtney Cunningham

J. Courtney Cunningham, Esq.

J. COURTNEY CUNNINGHAM, PLLC

FBN: 628166

8950 SW 74TH Court, Suite 2201

Miami, FL 33156

T: 305-351-2014

cc@cunninghampllc.com

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