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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

GYPSIE JONES,

2:04-CV-2002-MCE-KJM

Plaintiff,

v. MEMORANDUM AND ORDER

DOLLAR TREE STORES, INC., dba

DOLLAR TREE #2041,

Defendant.

----oo0oo----

Plaintiff Gypsie Jones (“Plaintiff”) filed the instant

action against Defendant Dollar Tree Stores, Inc. (“Defendant”)

alleging that Dollar Tree Store #2041, located at 3615 Northgate

Boulevard, Sacramento, California (“Store #2041”), is in

violation of California’s Unruh Civil Rights Act (“Unruh Act”),

Cal. Civil Code §§ 51 et seq. and the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12181 et seq. She seeks damages

pursuant to the Unruh Act and injunctive relief pursuant to the

ADA.

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While Defendant does not specifically ask for partial 1

summary judgement, the Court has discretion to adjudicate

individual claims when it believes the criteria for summary

adjudication are met. See Fed. R. Civ. P. 56(d) (indicating

that, on denying a motion for summary judgement on the whole

case, the court may determine whether partial summary judgment is

appropriate).

Because oral argument will not be of material assistance, 2

the Court orders this matter submitted on the briefs. E.D. Cal.

Local Rule 78-230(h). 

2

The case is now before the Court on Defendant’s Motion for

Summary Judgment. For the reasons explained below, Defendant’s 1

motion is granted in part and denied in part.2

BACKGROUND

Plaintiff is a paraplegic who requires the use of a

wheelchair for mobility. Plaintiff visited Store #2041 twice in

2004 and claims that, during those visits, she encountered

architectural barriers that made it difficult or impossible for

her to have full and equal access to the goods and services

provided by Defendant. Plaintiff’s first visit occurred in the

Spring of 2004. Shortly thereafter, Plaintiff sent a letter to

the management of Store #2041 describing the barriers she

encountered and requested that they be remedied. Upon returning

to Store #2041 in the summer of that same year, Plaintiff alleges

the barriers she identified on her first visit had not been

resolved. Consequently, on September 27, 2004, Plaintiff filed

the instant action.

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 Plaintiff’s Complaint contains fifteen additional alleged 3

violations related to the parking lot and a public telephone

located outside the store. As indicated above, the parking lot

is controlled by Defendant’s landlord. The same is true of the

public telephone. Because Plaintiff has already settled with

Defendant’s landlord, these fifteen claims are now moot. 

 Plaintiff has chosen not to pursue the remainder of these 4

potential claims for reasons not disclosed. Accordingly, the

Court considers those claims abandoned. 

3

In her Complaint, Plaintiff identifies five potential access

issues including (1) the lack of an International Symbol of

Accessibility (“ISA”) on the store’s entrance door, (2) the lack

of an accessible check stand, (3) the dimensions of the checkout

counter, do not match the requirements prescribed by the ADA

Accessibility Guidelines (“ADAAG”), (4) the lack of at least one

36 inch wide route through the store, and (5) the lack of an

accessible route to the restroom. (Compl. at Ex. A.) 3

Approximately one year after filing her Complaint, Plaintiff

sent her expert, Joe Card (“Card”), to Store #2041 to audit the

facility. Card was to confirm the ADA violations allegedly

encountered by Plaintiff and to search for additional violations. 

Although Card’s inspection report included more than thirty

potential accessibility issues, Plaintiff is pursuing only the 4

following thirteen issues:

(1) The ISA sticker on the entrance door is mounted at the

wrong height;

(2) The pressure required to open the entrance door exceeds

the legal limit;

(3) The store’s accessible checkstand does not provide a

sign mounted above the checkstand that states “This

check stand to be open at all times for customers with

disabilities;”

(4) One of the store’s exit doors is locked and blocked

with merchandise;

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Plaintiff's Complaint also alleges the following two 5

violations: (1) failure to maintain at least one 36 inch wide

route through the store, and (2) improper dimensions with respect

to the checkstand counter. While Plaintiff has alleged these

barriers in her Complaint, she makes no further mention of them

in her filings with this Court. Accordingly, the Court considers

those claims abandoned. 

4

(5) The automated teller machine (ATM) located at the

accessible checkstand is not visible to users;

(6) The signage on the women’s restroom door is mounted at

the wrong height;

(7) The pressure required to open the door to the women’s

restroom exceeds the legal limit;

(8) The women’s restroom does not contain an ISA on the

accessible stall door;

(9) The women’s restroom lavatory does not provide at least

29 inches of knee clearance as required by law;

(10) The women’s restroom’s lavatory’s drainpipes are not

properly insulated;

(11) The women’s restroom’s accessible stall has boxes in

the required clear floor space;

(12) The women’s restroom’s accessible stall has shelves 

mounted at a height which improperly protrudes into the

head clearance space of a potential user; and

(13) The toilet paper dispenser and a trash can in the

women’s restroom’s accessible stall improperly protrude

into the required clear floor space.5

See Card Decl. in Supp. Mot. Summ. J. 

STANDARD

The Federal Rules of Civil Procedure provide for summary

judgment when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

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5

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). One of the

principal purposes of Rule 56 is to dispose of factually

unsupported claims or defenses. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).

Rule 56 also allows a court to grant summary adjudication on

part of a claim or defense. See Fed. R. Civ. P. 56(a) (“A party

seeking to recover upon a claim ... may ... move ... for a

summary judgment in the party’s favor upon all or any part

thereof.”); See also Allstate Ins. Co. v. Madan, 889 F. Supp.

374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter

Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).

The standard that applies to a motion for summary

adjudication is the same as that which applies to a motion for

summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

ChemTronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

Under summary judgment practice, the moving party

always bears the initial responsibility of informing

the district court of the basis for its motion, and

identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions

on file together with the affidavits, if any,’ which it

believes demonstrate the absence of a genuine issue of

material fact.

Celotex Corp. v. Catrett, 477 U.S. at 323(quoting Rule 56(c)).

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

253, 288-89 (1968).

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6

In attempting to establish the existence of this factual

dispute, the opposing party must tender evidence of specific

facts in the form of affidavits, and/or admissible discovery

material, in support of its contention that the dispute exists. 

Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

the fact in contention is material, i.e., a fact that might

affect the outcome of the suit under the governing law, and that

the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

(1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper

Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way,

“before the evidence is left to the jury, there is a preliminary

question for the judge, not whether there is literally no

evidence, but whether there is any upon which a jury could

properly proceed to find a verdict for the party producing it,

upon whom the onus of proof is imposed.” Anderson, 477 U.S. at

251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20

L.Ed. 867 (1872)). As the Supreme Court explained, “[w]hen the

moving party has carried its burden under Rule 56(c), its

opponent must do more that simply show that there is some

metaphysical doubt as to the material facts .... Where the record

taken as a whole could not lead a rational trier of fact to find

for the nonmoving party, there is no ‘genuine issue for trial.’” 

Matsushita, 475 U.S. at 586-87.

///

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7

In resolving a summary judgment motion, the evidence of the

opposing party is to be believed, and all reasonable inferences

that may be drawn from the facts placed before the court must be

drawn in favor of the opposing party. Anderson, 477 U.S. at 255. 

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party’s obligation to produce a factual predicate

from which the inference may be drawn. Richards v. Nielsen

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

aff’d, 810 F.2d 898 (9th Cir. 1987).

ANALYSIS

The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et

seq. mandates that places of public accommodation and commercial

facilities be accessible to persons with disabilities. For

commercial facilities and places of public accommodation, this

mandate is encompassed within Title III of the ADA, 42 U.S.C. §§

12181 et seq. (“Title III”). Title III’s provisions are

implemented through regulations promulgated by the Department of

Justice which include guidelines for new construction and

alterations. See 42 U.S.C. § 12186(a); 28 C.F.R. Part 36

Appendix A. These guidelines are known as the Americans with

Disabilities Act Access Guidelines or ADAAG. In addition to

these federal enactments, California has promulgated similar

rules in its Building Code. See Cal. Code of Regs., tit. 24

(2001). Together these laws form the framework for assuring that

disabled persons have equal access and enjoyment of commercial

facilities.

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8

It is Plaintiff’s contention that Dollar Tree Stores, Inc. has

violated the foregoing rules and regulations at Store #2041. 

Defendant disagrees and, through the present Motion, seeks to

have Plaintiff’s claims dismissed.

1. Standing

The United States Constitution limits the jurisdiction of

federal courts to the resolution of “cases” and “controversies.” 

U.S. Const. Art. III § 2, cl. 1. This limitation is given effect

by the constitutional standing requirements, which ensure that

the exercise of judicial power is restricted to litigants who can

show that they have been adversely affected by the action which

they seek to have the court adjudicate. Valley Forge Christian

Coll. v. Ams. United for Separation of Church and State, Inc.,

454 U.S. 464, 473 (1982). To satisfy Article III’s standing

requirements, a plaintiff must show that: (1) she has suffered an

“injury in fact” that is (a) concrete and particularized, and (b)

actual or imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

Inc., 528 U.S. 167, 180-181 (2000).

The injury in fact prong is generally considered the

“principal limitation imposed by Article III.” Grand Lodge of

Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 14 (D.C.

Cir. 2001) (citations omitted).

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In order to determine whether a plaintiff has established the

requisite injury in fact, courts look to the facts in existence

at the time an action is filed. Friends of the Earth, Inc., 528

U.S. at 170.

In the context of ADA litigation, courts are split over

whether a plaintiff can sue for access barriers never encountered

or known about prior to filing suit. Some courts have held that

to satisfy the injury in fact prong, an ADA plaintiff must either

personally encounter the barrier complained of, or have reason to

know of the barrier and be deterred from visiting a public

accommodation because of that barrier at the time the complaint

is filed. Martinez v. Longs Drug Stores, Inc., 2005 WL 2072013,

*4 (E.D. Cal.); White v. Divine Investments, Inc., 2005 WL

2491543, *3 (E.D. Cal.). Other courts find that, so long as an

ADA plaintiff encounters one access barrier prior to filing suit,

the plaintiff has standing to sue for any other violations

subsequently discovered. Steger v. Franco, 228 F.3d 889, 893-894

(8th Cir. 2000); Wilson v. Pier 1 Imports, Inc., 412 F.Supp.2d

1130, 1131-1136 (E.D. Cal.). For the reasons below, it is this

Court’s finding that Plaintiff lacks standing for certain of her

claims because she cannot show a “concrete” or “particularized”

injury.

The Ninth Circuit has clarified that in order to show a

concrete or particularized injury, Plaintiff must show that she

is affected in a personal and individual way. Pickern v. Holiday

Quality Foods, Inc., 293 F.3d 1133, 1137-38 (9th Cir. 2002).

///

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For example, Plaintiff’s expert alleges that the pressure 6

required to open Store #2041's entrance door exceeds the legal

limit; however, there is nothing in Plaintiff’s Complaint to

indicate that Plaintiff encountered that barrier. Similarly,

Plaintiff’s Complaint is devoid of any reference to accessibility

issues with respect to the store’s exit doors or to the six

alleged violations found inside the women’s restroom. 

10

Specifically, Plaintiff may seek redress only for those

violations which she personally encountered, or which she knew

of, or had reason to know of, and which deterred her from

visiting Store #2041 at the time her Complaint was filed. Id. at

1136-38. Upon review of the thirteen claims currently pending,

the Court finds that only five have any relationship to the

violations alleged in Plaintiff’s Complaint. In particular, the

Court concludes that Plaintiff’s standing is limited to the

following five claims: (1) the mounting height of the ISA on

Store #2041’s entrance door; (2) the lack of signage stating

“this check stand to be open at all times for customers with

disabilities” on the store’s accessible checkstand; (3) alleged

visibility problems with respect to an automated teller machine

(ATM) located at the store’s accessible checkstand; (4) the

mounting height of signage on the women’s restroom door; and (5)

the pressure required to open the door to the women’s restroom.

Plaintiff’s remaining claims are not identified in

Plaintiff’s Complaint and were only identified upon Mr. Card’s

inspection of Store #2041 nearly a year after Plaintiff’s

Complaint was filed. Plaintiff did not personally encounter 6

those barriers nor was she aware of them at the time she filed

her Complaint. Under this Court’s analysis, she lacks standing to

pursue them. Accordingly, those claims are dismissed.

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2. Entrance Door ISA

Plaintiff alleges that Store #2041 is not in compliance with

either federal or state access laws in that the ISA signage at

the entrance of the store is improperly mounted. In fact, Card’s

report shows that the ISA sign is mounted approximately 29 inches

from its center point to the finished floor. See Card Decl. in

Supp. Mot. Summ. J., p. 6. Plaintiff contends that both the

ADAAG section 4.30.6 and CBC section 1117B.5.7 require the ISA

sign be mounted at a height of 60 inches from its center point to

the finish floor. As support for her argument, Plaintiff points

to ADAAG section 4.1.2(7)(c) which provides as follows:

“[e]lements and spaces of accessible facilities which

shall be identified by the International Symbol of

Accessibility and which shall comply with 4.30.7 are:

(c) Accessible entrances when not all are accessible

(inaccessible entrances shall have directional signage

to indicate the route to the nearest accessible

entrance.”

28 C.F.R. Part 36, App. A. This section clearly requires that,

when not all entrances to a commercial facility are accessible,

those that are must be identified by an ISA. 

Defendants contend that even if the entrance at issue is the

only handicap accessible entrance, there is no requirement under

either federal or state law that the ISA be mounted sixty inches

from the finish floor. The Court disagrees.

ADAAG section 4.30.6 reads

“[w]here permanent identification is provided for rooms

and spaces, signs shall be installed on the wall

adjacent to the latch outside of the door ...

[m]ounting height shall be 60 inches (1524 mm) above

the finish floor to the center line of the sign.”

Id. Precisely that same language is found in California’s

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Building Code (“CBC”) section 1117B.5.7. See Cal. Code of Regs.

tit. 24, § 1117B.5.7 (2001). As is clear from a plain reading of

the foregoing provisions, the ADAAG and the CBC expressly require

that where permanent signage is provided, it must be mounted at

60 inches from its center to the finish floor.

While Defendant may be correct in asserting that there is no

mandate under either federal or state law that this particular

entrance factually requires the posting of an ISA, Defendant has

failed to meet its burden of establishing either that the

entrance at issue is the only accessible entrance or that the

signage posted at the entrance is not permanent.

Assuming, as the Court must, that this entrance is not the

only accessible entrance and that Defendant’s ISA is a permanent

sign, there is no question it must be mounted 60 inches above the

finish floor. It is undisputed that Store #2041’s ISA is mounted

at 29 inches, well below the minimum 60 inch requirement for

permanent signs. Consequently, summary adjudication on this

claim is inappropriate and is, therefore, denied. 

3. Accessible Check Stand

Plaintiff also contends that Store #2041 is in violation of

both the ADAAG and the CBC because it does not provide a sign

mounted above the check stand stating “This check stand to be

open at all times for customers with disabilities.”

California’s building code section 1110B.1.3 states: 

///

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“accessible checkstands ... shall be identified by a sign

clearly visible to those in wheelchairs ... The sign shall

display the international symbol of accessibility ... and

shall state ‘This checkstand to be open at all times for

customers with disabilities.’”

Plaintiff’s expert found that Store #2041’s accessible check

stand, although providing the required ISA, failed to display the

above language. Plaintiff does not dispute this finding. 

Accordingly, Defendant’s Motion for Summary Judgment on this

claim is denied.

4. Accessible Check Stand ATM Screen

Plaintiff alleges that Store #2041’s ATM screen in the

accessible check stand is not visible to the user in violation of

the CBC. CBC section 1117B.7.5 provides:

LED, cathode ray, or other screen devices intended to

be viewed by the user shall be positioned so they are

readily visible to and usable by a person sitting in a

wheelchair with approximate eye level of 45 inches

(1143 mm), and shall comply with the following

requirements: 

3. Horizontally mounted screen devices. If mounted at an

angle between 60 degrees and 90 degrees tipped away from the

viewer, the center line of screens and other screen devices

shall be located a maximum of 34 inches (864 mm) above

grade.

Contrary to Plaintiff’s assertion, the Court finds the card

reader in question fully compliant with CBC section 1117B.7.5. 

First, the CBC merely requires that the card reader be “visible

to and usable by a person sitting in a wheelchair.” See Cal.

Code of Regs. tit. 24, § 1117B.5.7 (2001).

///

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With respect to visibility, the card reader must be

positioned at a height of “approximately 45 inches.” Id. It is

undisputed that the card reader at issue is positioned at a

height of 44 inches when attached to the check stand rendering it

substantially in compliance with the CBC for purposes of

visibility. See Card Decl. in Supp. Mot. Summ. J., p. 9.

With respect to whether the card reader is “usable” by a

wheelchair bound patron, the Court finds the card reader at issue

is, in fact, usable as required by the CBC. Specifically, CBC

section 1117B.7.5, subsection 3, which governs horizontally

mounted screen devices, requires the center line of horizontally

“mounted” screen devices to be located at a maximum of 34 inches

above grade. The card reader at issue is not “mounted” to the

check stand. Indeed, Store #2041’s card reader is readily

removable from its position by wheelchair bound patrons as it is

attached by velcro. This mobility permits handicapped patrons to

easily utilize the card reader as required by the CBC.

Here, the Court finds the flexibility offered by Defendant’s

card reader in compliance with the CBC because it is visible and

useable by disabled patrons. For the foregoing reasons,

Defendant’s Motion for Summary Judgment on this claim is granted.

5. Women’s Restroom Signage

CBC section 1115B.5 mandates that women’s restroom

facilities are identified by signage centered on the door and

mounted at a height of 60 inches. Cal. Code of Regs. tit. 24, §

1115B.5 (2001).

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Similarly, the ADAAG 4.30.6 provides that signage designating

permanent rooms and spaces shall be installed on the wall

adjacent to the latch side of the door at a mounting height of

60" (1525 mm) above the finish floor to the centerline of the

sign.

Plaintiff contends that the symbol identifying Store #2041’s

women’s restroom is mounted at 59 3/4 inches rendering it

noncompliant with ADA accessibility requirements. Through this

claim, Plaintiff is ultimately seeking a judgment from this Court

that interior signage posted 1/4" at variance with the strict

terms of the ADAAG entitles her to damages and injunctive relief. 

The Court disagrees. 

The ADA, by and through the ADAAG, mandates that places of

public accommodation and commercial facilities be accessible to

persons with disabilities, which includes dimensional

requirements for various elements of the accessible environment,

such as signage, water closets, grab bars, lavatories, and

placement of emergency alarm notification devices. These

guidelines, however, also permit equivalent facilitation. ADAAG

§ 2.2. Equivalent facilitation applies to all sections of the

ADAAG and generally permits alternative technologies or designs

to be used to create substantially equivalent or greater access

to or usability of facilities. ADAAG § 2.2; see also 56 F.R.

35408, comments on “4.30 Signage” (pagination not available).

///

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Pursuant to the doctrine of equivalent facilitation, employing

alternatives which provide equal or greater access to disabled

patrons does not violate the ADA merely by virtue of the fact

those alternatives do not comply with the strict terms of the

ADAAGs. Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd.,

2001 U.S. Dist. LEXIS 6660, 28-30 (D. Fla. 2001). 

It has been noted that the reason for the 60" mounting

height is to provide uniformity of sign location and consistency

in Braille location for visually impaired persons. See 56 F.R.

35408, comments on “4.30 Signage” (pagination not available)

(stating that original recommendation of a range of 54" to 66"

was discarded in favor of a fixed dimension of 60" because that

height places the sign at a more comfortable reading distance for

users of Braille and raised characters.) In fact, the ADAAG

Manual itself recognizes this purpose and recommends that “signs

containing pictograms or other non-tactile information ... should

be measured to the centerline of the raised/Braille portion so

that it is not too low (or high)." ADAAG Manual p. 106.

Given that the strictures of the 60" height requirement are

subject to equivalent facilitation as set forth in the ADAAG

section 2.2 and that a 1/4" variation provides at least

equivalent access to Plaintiff, her claim must fail.

The Court finds that Store #2041’s signage height provides

Plaintiff with equivalent facilitation because the 59 3/4" height

gives her at least equivalent access to the facilities and is

therefore in compliance with the ADA pursuant to the ADAAG

section 2.2. Accordingly, Defendant’s Motion for Summary

Adjudication of this claim is granted.

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5. Women’s Restroom Door Pressure

Plaintiff alleges that the door to the women’s restroom

violates the ADA because it requires 12 pounds of pressure to

open rather than 5 pounds as required under the ADA. Defendant

answers that its restroom facilities are not open to the public

and, consequently, the pounds of pressure required to open the

door does not pose a barrier to Plaintiff.

In Louie v. Ideal Cleaners, 1999 WL 1269191 (N.D. Cal.), the

district court was confronted with exactly the same issue. 

There, defendants operated a dry cleaning business that provided

restroom facilities to employees, but not to the general public. 

The court held that since the restroom facilities were not made

available to customers in general, they did not need to be made

available to disabled customers. The Louie court’s holding was

based, in part, on its interpretation of California Health &

Safety Code § 19955. That section provides that “[w]hen sanitary

facilities are made available for the public, clients or

employees ... they shall be made available for the handicapped.” 

Cal. Health & Safety Code § 19955 (2006).

The language of the statute is capable of two different

interpretations. Plaintiff interprets the statute to say that if

a business provides restroom facilities to employees but not the

general public, it nonetheless must provide those facilities to

disabled individuals, including disabled members of the general

public.

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The Louie court correctly rejected this interpretation. As

an equal access statute, Health & Safety Code section 19955 is

intended to ensure that a disabled individual is able to utilize

public accommodations to the same extent as would be possible if

the individual were not disabled. See Louie, 1999 WL 1269191 at

*3; see also Donald v. Café Royale, Inc., 218 Cal.App.3d 168,

182-183 (1990). Consequently, the Louie plaintiff was not denied

equal access because no members of the public – disabled or not –

were permitted to use the dry cleaner’s employee-only restroom. 

Louie, 1999 WL 1269191 at *3. The fact that section 19955

required the restroom to be made accessible to disabled employees

was irrelevant since the plaintiff was not an employee. Id.

Plaintiff argues that the Louie court was incorrect, and

offers a 1971 committee analysis from the Assembly Committee on

Commerce and Public Utilities as evidence that her interpretation

is in fact what the Legislature intended. (Opp. at 7-10, Ex.

A:3-4.) The Court is not persuaded by Plaintiff’s argument. The

analysis proffered by Plaintiff involved legislation predating

the current version of section 19955. The version of section

19955 now in effect was enacted over two years later by an

entirely different Legislature, a point Plaintiff freely

conceded. Consequently, the Court agrees with Louie and holds

that section 19955 requires Defendant to provide accessible

restrooms for disabled customers only if restrooms are provided

for non-disabled customers as well. 

Plaintiff next alleges that Store #2041’s women’s restroom

is, in fact, open to the public. 

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At no point in her declaration does Plaintiff claim that 7

she entered the women’s restroom. She merely claims that she

“encountered the following barriers on the inside of the Store.” 

(Jones Decl. at 2:10-11). She then lists the alleged barriers

identified by her expert. Id.

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Defendant, however, has steadfastly maintained that Store #2041’s

restrooms have been closed to the public since long before

Plaintiff’s first visit to the store. The only evidence

supporting Plaintiff’s contention is her declaration filed in

opposition to the present motion. This declaration marks the

first time Plaintiff has alleged that she personally encountered

barriers inside the women’s restroom.7

The Court views Plaintiff’s later filed declaration with

skepticism. As an initial matter, Plaintiff’s Complaint makes no

reference to any barriers inside the women’s restroom. Rather,

she simply claims there was “no accessible route to the

restroom.” Compl. at Ex. A. More importantly, Plaintiff sent a

letter to Defendant after her initial visit to Store #2041

wherein she complained “when I tried to use your rest room [sic]

a sign said it was out of order., [sic] so I hurriedly checked

out to find another facility.” Jones Decl. at Ex. A. It is only

now, in opposition to Defendant’s assertion that the restrooms

are for employee use only, that Plaintiff alleges she encountered

barriers therein.

As a general matter, the evidence presented by a party

opposing a summary judgement motion is to believed by the Court. 

However, the opposing party must demonstrate that the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.

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Therefore, “before the evidence is left to the jury, there is a

preliminary question for the judge, not whether there is

literally no evidence, but whether there is any upon which a jury

could properly proceed to find a verdict for the party producing

it.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)

(quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed.

867 (1872)).

The Court finds that no credible evidence has been produced

by Plaintiff that she encountered barriers inside the women’s

restrooms during her visit to Store #2041. As a result,

Defendant’s Motion for summary adjudication on this claim is

granted.

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CONCLUSION

The Court grants Defendant’s Motion for Summary Judgment on

the following claims: 1) there is no accessible check stand; 2)

the signage on the women’s restroom door creates an accessibility

barrier; and 3) the pressure required to open the women’s

restroom door creates an accessibility barrier. The Court denies

Defendant’s Motion for Summary Judgment on the following claims:

1) the ISA signage is improperly mounted on the entrance door;

and 2) there is no signage identifying the accessible checkstand.

IT IS SO ORDERED.

DATED: May 19, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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