1

United States Court of Appeals,

Fifth Circuit.

No. 94-50552.

Margo NEFF, for herself and those similarly situated, PlaintiffAppellant,

v.

AMERICAN DAIRY QUEEN CORPORATION, Defendant-Appellee.

July 20, 1995.

Appeal from the United States District Court for the Western

District of Texas.

Before REAVLEY, GARWOOD and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Margo Neff appeals from the district court's entry of summary

judgment on her claims against American Dairy Queen Corporation

("ADQ") under the Americans with Disabilities Act, 42 U.S.C. §§

12101-12213 (West Supp.1995) ("ADA"). We affirm.

I

ADQ owns the federally registered "Dairy Queen" trade name and

various trademarks and service marks used in connection with the

operation of licensed Dairy Queen stores. ADQ, through franchise

agreements with franchisees throughout the United States, licenses

franchisees to establish and operate Dairy Queen retail stores.

Among those franchisees is R & S Dairy Queens, Inc., a Texas

corporation that owns two Dairy Queen stores in San Antonio, one

located at 13122 Nacogdoches (the "Nacogdoches Store"), and the

other located at 9726 Perrin Beitel (the "Perrin Beitel Store")

(collectively, the "San Antonio Stores").
 

1Section 302(a) provides that "[n]o 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 person who owns, leases (or leases to), or

operates a place of public accommodation." 42 U.S.C. § 12182(a). 

Section 302(b)(2)(A)(iv) further provides that such

discrimination includes the "failure to remove architectural

barriers, and communication barriers that are structural in

nature, in existing facilities, ... where such removal is readily

achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). 

 

2In her complaint, Neff alleged that ADQ "owns" the San

Antonio Stores. 

 

3Neff also sought certification of a class of disabled

consumers who were unable to access the San Antonio Stores. Neff

later filed a motion for class certification, which the district

court denied as moot when it granted ADQ's motion for summary

judgment. Neff makes no argument regarding class certification

on appeal. 

2

Margo Neff is disabled and requires a wheelchair to gain

mobility. Neff filed suit under section 308 of the ADA, 42 U.S.C.

§ 12188(a) (1988), alleging that ADQ had violated section 302 of

the ADA, 42 U.S.C. § 12182, by failing to make the San Antonio

Stores accessible to her.1 In her complaint, Neff pointed to

numerous barriers that she alleged made the San Antonio Stores

inaccessible to the disabled. Neff sought an injunction requiring

ADQ to modify "its"2 San Antonio Stores to eliminate the alleged

barriers, a declaratory judgment concerning ADQ's violation of the

ADA, and attorneys' fees.3

ADQ moved for summary judgment on the grounds that it did not

own, lease, or operate the San Antonio Stores and therefore was not

responsible for removing the alleged barriers. Its summary

judgment pleadings included an affidavit by ADQ's Vice President

for Franchise Operations stating that ADQ neither owned nor
 

4The United States has filed an amicus curiae brief

supporting Neff's position, and the International Franchise

Association has filed an amicus curiae brief supporting ADQ's

position. 

3

operated the San Antonio Stores. ADQ also offered copies of the

franchise agreements between ADQ and R & S Dairy Queens relating to

the San Antonio Stores. According to ADQ, the agreements

established as a matter of law that it did not "operate" the stores

within the meaning of section 302.

In response, Neff contended that the terms of the franchise

agreement between ADQ and R & S Dairy Queens regarding the

Nacogdoches Store supported her claim that ADQ retained sufficient

control over the operation of the San Antonio Stores to make it an

"operator" of the stores for the purposes of section 302.

The district court granted summary judgment, see Neff v.

American Dairy Queen, Inc., 879 F.Supp. 57 (W.D.Tex.1994),

concluding that the Nacogdoches Store franchise agreement

established no more than that ADQ held the power to veto

modifications to the store's facilities, and that this amount of

control was insufficient to bring ADQ within the scope of section

302. Neff appeals from the district court's entry of summary

judgment, contending that the existence of genuine issues of

material fact regarding whether ADQ "operates" the San Antonio

Stores should have precluded summary judgment on her ADA claims.4

II

We review a district court's grant of summary judgment de

novo, applying the same standard as did the district court.
 

5The United States specifically argues that the question is

one of fact. 

4

McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 301 (5th Cir.1993).

We "review the facts drawing all inferences most favorable to the

party opposing the motion." Reid v. State Farm Mut. Auto. Ins.

Co., 784 F.2d 577, 578 (5th Cir.1986). Summary judgment is

appropriate when the summary judgment record demonstrates "that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986);

Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.1992),

cert. denied, --- U.S. ----, 113 S.Ct. 462, 121 L.Ed.2d 371 (1992).

"If the moving party meets the initial burden of showing that there

is no genuine issue of material fact, the burden shifts to the

non-moving party to produce evidence or designate specific facts

showing the existence of a genuine issue for trial." Engstrom v.

First Nat'l Bank, 47 F.3d 1459, 1462 (5th Cir.1995), petition for

cert. filed, 63 U.S.L.W. 3892 (U.S. June 12, 1995) (No. 94-2025).

A

 Neff argues that summary judgment was inappropriate in this

case because genuine issues of material fact exist regarding ADQ's

control over the restaurants in question. This argument raises the

question of whether the issue that Neff and ADQ dispute is one of

fact or one of law.5 The only issue in dispute between the parties

is whether ADQ's contractual rights under the Nacogdoches Store
 

6In support of her argument that the existence of genuine

issues of material fact should have precluded the district court

from rendering summary judgment, Neff cites Drexel v. Union

Prescription Centers, Inc., 582 F.2d 781 (3d Cir.1978). In

Drexel, the Third Circuit applied the Rule 56(c) summary judgment

standard to an issue of state agency law that involved an

interpretation of a franchise agreement. A wrongful death

plaintiff contended that the franchisor exercised sufficient

control over the franchisee retail store such that it "operated"

the store, thus rendering the franchisor potentially liable for

the torts of its franchisee. The court treated the question of

whether the franchise agreement created an agency relationship as

one of fact and interpreted the agreement in the light most

favorable to the nonmovant. See id. at 788-89. Although the

court's reasoning is not entirely clear, the court did hold that

the franchise agreement was ambiguous, id. at 788, raising the

factual issue of what the parties intended it to mean, id. In

5

franchise agreement demonstrate that ADQ "operates" the San Antonio

Stores. Neff's only summary judgment evidence, and the only basis

for her claim that ADQ "operates" the San Antonio Stores, is the

Nacogdoches Store franchise agreement, and "[t]he interpretation of

an unambiguous contract is a question of law" which we review de

novo. Exxon Corp. v. Crosby-Mississippi Resources, Ltd., 40 F.3d

1474, 1481 (5th Cir.1995). Neff has not alleged that the

Nacogdoches Store franchise agreement is ambiguous. Indeed, the

parties do not dispute the meaning of the terms of the agreement at

all; rather, they dispute whether the control provided for in the

agreement makes ADQ an "operator" of the store for the purposes of

section 302, again a question of law which we review de novo. See

Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir.1994)

("We review the district court's legal decisions, including the

proper interpretation of a statute, de novo."). Consequently, we

hold that because the disputed issue in this case is purely legal,

it was appropriately resolved through summary judgment.6
any event, to the extent that Drexel is inconsistent with our

holding in this case, we decline to follow its reasoning.

Neff also cites two state cases in support of her

argument that material facts precluded summary judgment: 

Singleton v. International Dairy Queen, Inc., 332 A.2d 160

(Del.Super.Ct.1975), and American Dairy Queen Corp. v.

Taxation & Revenue Department, 93 N.M. 743, 605 P.2d 251

(Ct.App.1979). Neither case relates to ADA liability or

applies the federal standard for summary judgment, however,

and we decline to follow them. 

 

7The parties do not dispute that the San Antonio Stores are

places of public accommodation. 

 

8The parties agree that ADQ does not own the premises in

question or lease them to R & S Dairy Queens. 

6

B

Neff's appeal thus presents a narrowly defined issue of first

impression: whether a franchisor with limited control over a

franchisee's store "operates a place of public accommodation"

within the meaning of section 302(a).7 Section 302(a) provides in

pertinent part that "[n]o individual shall be discriminated against

on the basis of disability in the full and equal enjoyment of ...

[the] facilities ... or accommodations of any place of public

accommodation by any person who owns, leases (or leases to),[8] or

operates a place of public accommodation." (emphasis added).

Because the ADA does not define the term "operates," we "construe

it in accord with its ordinary and natural meaning." Smith v.

United States, --- U.S. ----, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138

(1993); see also Perrin v. United States, 444 U.S. 37, 42, 100

S.Ct. 311, 314, 62 L.Ed.2d 199 (1979) ("A fundamental canon of

statutory construction is that, unless otherwise defined, words

will be interpreted as taking their ordinary, contemporary, common
7

meaning."). To "operate," in the context of a business operation,

means "to put or keep in operation," The Random House College

Dictionary 931 (Rev. ed. 1980), "[t]o control or direct the

functioning of," Webster's II: New Riverside University Dictionary

823 (1988), "[t]o conduct the affairs of; manage," The American

Heritage Dictionary 1268 (3d ed. 1992).

Neff argues that the terms of the Nacogdoches Store Franchise

Agreement demonstrate that ADQ exercises sufficient control over

the San Antonio Stores to bring ADQ within the scope of section

302. We hold that the relevant inquiry in a case such as this one

is whether ADQ specifically controls the modification of the

franchises to improve their accessibility to the disabled. Cf.

Carparts Distribution Center, Inc. v. Automotive Wholesalers'

Ass'n, 37 F.3d 12, 16-18 (1st Cir.1994) (interpreting "employer" as

used in Title I of ADA by looking to defendant's control over

allegedly discriminatory denial of employee benefits). Although we

have found no circuit court of appeals case law interpreting the

scope of "operates" as used in § 302 of the ADA, the existing

district court authority is consistent with our approach. All

three district courts that have addressed the question of ADQ's

liability for allegedly discriminatory conditions at franchisee

stores have concluded that ADQ does not "operate" the stores for

the purposes of § 302, and all three looked to ADQ's authority over

structural modifications to the franchisee stores in reaching their

conclusions. See Young v. American Dairy Queen, Inc., 1994 WL

761233, *2 (N.D.Tex.1994); Neff v. American Dairy Queen, Inc., 879
 

9In addition, two district courts have interpreted

"operates" in the context of hospital operations consistently

with our approach to the question in the context of franchise

store operations. In Howe v. Hull, 873 F.Supp. 72 (N.D.Ohio

1994), the court held that a physician "operated" a hospital

because he exercised sole discretion over the allegedly

discriminatory decision not to admit a patient with AIDS. The

court specifically focused on the physician's authority over the

allegedly discriminatory act. Id. at 77-78. In Aikins v. St.

Helena Hosp., 843 F.Supp. 1329 (N.D.Cal.1994), the court held

that a physician who worked at a hospital as an independent

contractor did not "operate" the hospital in question. The

plaintiff in Aikins, the deaf wife of an emergency room patient,

complained that the hospital had discriminated against her by

failing to provide her with an interpreter. The court held that

the physician defendant did not "operate" the hospital because,

as an independent contractor, he exercised no authority over the

hospital's policy on the use of interpreters. Id. at 1335. 

8

F.Supp. 57, 60 (W.D.Tex.1994); Alonzo v. Bayside Restaurant Co.,

C.A. No. C-94-103, slip op. at 4 (S.D.Tex.1994).9

 Neff and the United States point to numerous non-structural

aspects of the San Antonio Stores' operations that they contend ADQ

controls, such as accounting, personnel uniforms, use of

trademarks, etc. While ADQ's control over these aspects may be

relevant in other contexts, we hold that because it does not relate

to the allegedly discriminatory conditions at the San Antonio

Stores, it does not bear on the question of whether ADQ "operates"

the franchises for the purposes of the ADA's prohibition on

discrimination in public accommodations. Instead, the relevant

question in this case is whether ADQ, according to the terms of its

franchise agreements with R & S Dairy Queens, controls modification

of the San Antonio Stores to cause them to comply with the ADA.

Neff points to the following language in the Nacogdoches Store

franchise agreement to support her position that ADQ controls the
 

10Neff has not identified, either below or on appeal, any

language in the Perrin Beitel Store franchise agreement to

support her claim that ADQ "operates" the Perrin Beitel Store. 

The Perrin Beitel Store franchise agreement is more limited in

scope than the Nacogdoches Store agreement, and it contains none

of the provisions to which Neff points in support of her argument

regarding ADQ's control over the Nacogdoches Store. 

9

San Antonio stores:10

B. Company makes available to its licensees a system to

establish, equip and operate a retail store facility as part

of the "Dairy Queen" system using distinctive, uniform and

approved designs, equipment, supplies ... which Licensee

desires to adopt and use to operate a "Dairy Queen" retail

store ... in accordance with this Agreement and the system

standards and requirements established and periodically

revised by the Company....

5.1 The retail Store shall be constructed and equipped in

accordance with Company's approved specifications and

standards in effect at the time pertaining to design and

layout of the building, and as to equipment, inventory,

signage, fixtures, location and design and accessory features.

Licensee shall not commence construction of the Store until he

has received the written consent of Company to his building

plans.

5.2 Any replacement, reconstruction, addition or modification

in building, interior or exterior decor or image, equipment or

signage, to be made after Company's consent is granted for

initial plans, whether at the request of Licensee or of

Company, shall be made in accordance with written

specifications which have received the prior written consent

of Company, which shall not be unreasonably withheld.

5.3 The building, equipment and signage employed in the

conduct of Licensee's business shall be maintained in

accordance with requirements established periodically by

Company, or reasonable, specific lists prepared by Company

based upon periodic inspections of the premises by Company's

representatives. Within a period of ninety (90) days after

the receipt of any particular maintenance list, Licensee shall

effect the items of maintenance designated therein including

the repair of defective items and/or the replacement of

unrepairable or obsolete items of equipment and signage.

Routine maintenance shall be conducted in accordance with

general schedules published by Company.

6.7 Licensee shall adopt and use as his continuing operational

routine the standard "Dairy Queen" management system, as
10

prescribed in the Store Management Operations Manual,

including Company's standards with respect to product

preparation, merchandising, employee training, equipment and

facility maintenance and sanitation. Company will revise the

Manual and these programs periodically to meet changing

conditions of retail operation in the best interest of "Dairy

Queen" retail stores.....

Record on Appeal, vol. 1, at 183-86. However, we agree with the

district court that this language does not establish sufficient

control on ADQ's part such that ADQ can be said to "operate" the

San Antonio stores. Paragraph B is simply a general statement

regarding the purpose of the agreement, and even it makes clear

that R & S Dairy Queen, not ADQ, will "operate" the store.

Paragraph 5.1 provides for the greatest level of control over the

accessibility of the Nacogdoches Store to the disabled, but it

relates to the construction of the store, and it is undisputed that

the Nacogdoches store was constructed and equipped before the ADA

was enacted. Consequently, even if ADQ "operated" the store with

respect to its construction, such operation is irrelevant because

the issue in Neff's case is whether ADQ "operates" the San Antonio

Stores with respect to the removal of existing architectural

barriers. In addition, ADQ's pre-ADA control over the San Antonio

Stores cannot form the basis of Neff's discrimination claim because

the ADA is not to be given retroactive effect. See Burfield v.

Brown, Moore & Flint, Inc., 51 F.3d 583, 588 (5th Cir.1995)

(holding that employment discrimination claim was barred because

"[t]he ADA is not retroactive and it does not apply to actions

allegedly taken prior to the effective date of the Act").

Paragraph 5.2, the only paragraph that relates to
11

modifications to the structure of the Nacogdoches Store, simply

provides that ADQ may disapprove any proposed modifications to the

Nacogdoches Store building and equipment. While this does amount

to a limited form of control over structural modifications, we

agree with the district court that this right, which is essentially

negative in character, cannot support a holding that ADQ "operates"

the Nacogdoches Store with respect to its removal of architectural

barriers to the disabled. We note that Neff has not alleged or

offered any summary judgment evidence to show that ADQ has withheld

its consent to proposed modifications to the Nacogdoches Store

designed to bring it into compliance with the ADA.

In its brief, Neff specifically emphasizes paragraphs 5.3 and

6.7. Paragraph 5.3 refers to building and equipment maintenance

and not the modification of the store structure or removal of

architectural barriers. ADQ's control in this regard, while more

relevant than its control over employee uniforms, accounting

standards, etc., is not directly relevant to the Neff's suit.

Neff's complaint is not based on R & S's failure to perform

maintenance on the Nacogdoches Store building or equipment;

rather, she complains of the equipment itself. Further, while

Paragraph 5.3 does provide that such maintenance must be conducted

in accordance with ADQ-established maintenance lists, Neff has not

alleged, or offered any summary judgment evidence to show, that

these lists prevent R & S from modifying the Nacogdoches Store to

bring it into compliance with the ADA.

Paragraph 6.7 states that R & S must adhere to the routine
 

11At oral argument, Neff also pointed to paragraphs 11.1 and

11.2 of the agreement, which allow ADQ to terminate the agreement

in case of breach. The right to terminate, however, does not

grant ADQ additional control over the modification of the

Nacogdoches Store to increase its accessibility to the disabled

beyond ADQ's underlying contractual rights with respect to such

modifications. 

 

12We note that a recent Second Circuit case may suggest a

disagreement with our reasoning. In Staron v. McDonald's Corp.,

51 F.3d 353 (2d Cir.1995), the court addressed the question of

whether a ban on smoking was a "reasonable accommodation"

required by the ADA. See 42 U.S.C. § 12182(b)(2)(A)(ii). In

that case, the plaintiffs sued McDonald's Corporation and Burger

King Corporation alleging that the two corporations' policies of

permitting smoking in "their" restaurants violated the ADA. The

plaintiffs sought an injunction requiring the defendants to

"establish a policy of prohibiting smoking in all of the

facilities they own, lease or operate." Staron, 51 F.3d at 355. 

12

prescribed by ADQ's "Store Management Operations Manual," through

which ADQ sets standards for "product preparation, merchandising,

employee training, equipment and facility maintenance and

sanitation." The effect of this provision is similar in kind to

the effect of Paragraph 5.3. It does not relate to the

modification of the physical structure or accessibility of the

Nacogdoches Store, and Neff has not alleged or offered summary

judgment to show that the Store Management Operations Manual

prevents R & S Dairy Queens from making such modifications.11

In sum, while the terms of the Nacogdoches Store franchise

agreement demonstrate that ADQ retains the right to set standards

for building and equipment maintenance and to "veto" proposed

structural changes, we hold that this supervisory authority,

without more, is insufficient to support a holding that ADQ

"operates," in the ordinary and natural meaning of that term, the

Nacogdoches Store.12
In its opinion, the Second Circuit alludes to an earlier

disposition of a motion by McDonald's Corporation:

On the same day that the district court granted the

motions to dismiss, McDonald's announced a new policy

prohibiting smoking in all of its corporate

owned-and-operated restaurants. The smoking ban did

not extend to its franchised restaurants. McDonald's

then submitted a motion to this court to dismiss

plaintiffs' appeal as moot. This court denied the

motion on June 21, 1994.

Id. However, the court did not state on what grounds

McDonald's policy change did not render the case moot, and

the court's opinion contains no further discussion regarding

the propriety of holding McDonald's responsible for the

smoking policy at the franchisee restaurants. 

 

13As we noted above, Neff does not contend that ADQ has

prevented R & S Dairy Queens from removing architectural barriers

by refusing to approve modifications to the restaurants or

promulgating a policy preventing such modifications. Indeed, ADQ

offered numerous exhibits documenting its efforts to encourage

franchisees to comply with the ADA. 

13

Because Neff rested her claim that ADQ "operates" the San

Antonio stores exclusively on the terms of the Nacogdoches Store

franchise agreement, and did not allege that ADQ has prevented R &

S Dairy Queens from complying with the ADA, either as a practical

matter or by exercising its rights under its franchise agreements,13

we hold that ADQ met its burden under Rule 56(c) in its motion for

summary judgment. ADQ established the absence of a genuine issue

of material fact and further that it was entitled to judgment as a

matter of law based on the terms of its franchise agreements with

R & S Dairy Queens. Because Neff offered no summary judgment

evidence other than the Nacogdoches Store franchise agreement in

response to ADQ's motion, we further hold that Neff's summary

judgment evidence was insufficient to raise a genuine issue for
 

14Cf. EEOC v. AIC Security Investigations, Ltd., 55 F.3d

1276, 1281-82 (7th Cir.1995) ("We do not doubt that the

employment discrimination statutes have broad remedial purposes

and should be interpreted liberally, but that cannot trump the

narrow, focused conclusion we draw from the structure and logic

of the statute. A liberal construction does not mean one that

flies in the face of the structure of the statute."). 

14

trial.

Neff and the United States argue that to exclude ADQ from the

scope of section 302(a) would be inconsistent with the canon of

construction requiring courts to interpret civil rights statutes

liberally to effectuate their remedial purposes. See, e.g., Gates

v. Collier, 616 F.2d 1268, 1275 (5th Cir.1980) (liberally

interpreting Civil Rights Attorneys' Fee Awards Act), rehearing

granted in part on other grounds, 636 F.2d 942 (5th Cir.1981);

United States v. DeRosier, 473 F.2d 749, 751 (5th Cir.1973)

(liberally interpreting Civil Rights Act of 1964). Even assuming

the canon applies in this context, we hold that Neff's

interpretation of the term "operates" would require more than just

a liberal construction of that term. Neff's argument in this case

would require us to bend "operates" too far beyond its natural

meaning for us to rely on the canon of statutory interpretation

requiring that we interpret civil rights legislation liberally.14

Furthermore, we fail to see how our interpretation of

"operates" to exclude ADQ under the circumstances involved in this

case will interfere with the remedial purposes of the ADA.

Assuming conditions at the San Antonio stores do not comply with

the ADA, it is Neff's decision not to sue the owner and operator of

those stores, R & S Dairy Queens, that will prevent her from
 

15Because Neff seeks only injunctive relief, it is curious

why Neff elected to name ADQ rather than R & S Dairy Queens, the

more logical defendant to an ADA suit over the accessibility of

the San Antonio Stores. However, the answer may lie in §§

302(b)(2)(A)(iv) and 301(9)(C) of the ADA, 42 U.S.C. §§

12182(b)(2)(A)(iv), 12181(9)(C). Section 302(b)(2)(A)(iv)

defines discrimination in public accommodations to include "a

failure to remove architectural barriers, and communication

barriers that are structural in nature, in existing facilities,

... where such removal is readily achievable." 42 U.S.C. §

12182(b)(2)(A)(iv). Section 301(9)(C), in turn, defines "readily

achievable" as follows:

The term "readily achievable" means easily

accomplishable and able to be carried out without much

difficulty or expense. In determining whether an

action is readily achievable, factors to be considered

include—

(B) the overall financial resources of the covered

entity....

42 U.S.C. § 12181(9)(C). Consequently, the scope of the

injunctive relief available to Neff if she proves a

violation of the ADA will depend in part on the financial

strength of the defendant against which she proceeds.

Still, while our holding excluding ADQ from the scope

of § 302 with respect to the San Antonio Stores may limit

the actual relief available to Neff, it will not hurt her

ability to compel R & S Dairy Queens to make "readily

available" structural changes to the San Antonio stores. 

15

obtaining the injunction she seeks.15

Neff also argues that because "a franchisor is held

responsible under the Civil Rights Act, a franchisor is held

responsible under the ADA." This argument fails on several levels.

First, it depends on Neff's premise that "the Title III [of the

ADA] rights and remedies are the same as those rights and remedies

available under the Civil Rights Act of 1964." However, the

statutory provision Neff cites for this proposition states only

that the remedies available under the ADA shall be the same as the
 

16In Wheeler, the Tenth Circuit held that a general partner

was not an "employee" within the meaning of Title VII, the ADEA,

and the Equal Pay Act. id. at 277 ("For the reasons stated

above, we hold that bona fide general partners are not employees

under the Anti-Discrimination Acts."). The only issue before the

court in Bradley was whether the defendants had established a

business justification defense for enforcing an allegedly

discriminatory "no beard" policy. One of the defendants was a

franchisor, Domino's Pizza, Inc., but the court did not address

the basis for Domino's liability under Title VII. However, the

court's recitation of the facts demonstrates that the allegedly

discriminatory "no beard" policy was "established nationwide by

[the] franchisor, Domino's Pizza, Inc.," id. at 796, and thus was

a direct result of an affirmative act by the franchisor. 

16

remedies available under the Civil Rights Act. See 42 U.S.C. §

12188(a)(1). Second, because the Civil Rights Act does not define

the scope of defendants who may potentially be liable with

reference to who "operates" a public accommodation, Civil Rights

Act cases are unlikely to be informative on the meaning of that

term. Third, the two cases on which Neff relies to argue that

franchisors "are liable" under the Civil Rights Act, Wheeler v.

Hurdman, 825 F.2d 257 (10th Cir.1987), cert. denied, 484 U.S. 986,

108 S.Ct. 503, 98 L.Ed.2d 501 (1987), and Bradley v. Pizzaco, 7

F.3d 795 (8th Cir.1993), are factually distinguishable.16

III

For the foregoing reasons, we AFFIRM the district court's

order granting ADQ's motion for summary judgment.