NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUDY SZWANEK; JAMES LOPEZ II, 

individually and on behalf of all others 

similarly situated, 

Plaintiffs-Appellants, 

 v. 

JACK IN THE BOX, INC.; et al., 

Defendants-Appellees.

No. 20-16942 

D.C. No. 3:20-cv-02953-WHA 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted October 18, 2021

San Francisco, California

Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,**International 

Trade Judge. Dissent by Judge WATFORD.

Judy Szwanek and James Lopez II, who are both legally blind, claim that Jack 

in the Box violated Title III of the Americans with Disabilities Act (ADA) and the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable M. Miller Baker, Judge for the United States Court of 

International Trade, sitting by designation.

FILED

NOV 3 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Unruh Civil Rights Act by closing inside seating at night in two of its restaurants 

and serving food solely through drive-through windows that are available only to 

customers in motor vehicles. The district court granted Jack in the Box’s motion to 

dismiss the operative complaint in this putative class action. We affirm.

1. “To prevail on a Title III discrimination claim, the plaintiff must show that 

(1) she is disabled within the meaning of the ADA; (2) the defendant is a private 

entity that owns, leases, or operates a place of public accommodation; and (3) the 

plaintiff was denied public accommodations by the defendant because of her 

disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). There is 

no dispute that Szwanek and Lopez are disabled, nor that Jack in the Box restaurants 

are “place[s] of public accommodation.” The only issue is whether Szwanek and 

Lopez were denied accommodations “because of” their blindness.

A facially neutral policy, like the one at issue here, violates the ADA only if 

it burdens a plaintiff “in a manner different and greater than it burdens others.” 

Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996). The operative complaint 

does not plausibly allege that the Jack in the Box policy did so. The refusal to serve 

food to pedestrians at drive-through windows does not impact blind people 

differently or in a greater manner than the significant population of non-disabled 

people who lack access to motor vehicles. If these non-disabled individuals wish to 

purchase food at Jack in the Box restaurants when the dining rooms are closed, they 
3

face precisely the same burden as blind people—they must arrive at the drivethrough window in a vehicle driven by someone else.

2. Crowder is not to the contrary. At issue in that case was a Hawaii policy 

requiring a 120-day quarantine for all dogs entering the state. Id. at 1481–1482. In 

finding the policy violated Title II of the ADA, we stressed that 

Although Hawaii’s quarantine requirement applies equally to all persons 

entering the state with a dog, its enforcement burdens visually-impaired 

persons in a manner different and greater than it burdens others. Because of 

the unique dependence upon guide dogs among many of the visuallyimpaired, Hawaii's quarantine effectively denies these persons—the plaintiffs 

in this case—meaningful access to state services, programs, and activities 

while such services, programs, and activities remain open and easily 

accessible by others.

Id. at 1484. We also noted the legislative history and governing regulations made 

clear that “the general intent of Congress” in enacting the ADA was “to ensure that 

individuals with disabilities are not separated from their service animals.” Id. at 

1485 (cleaned up). 

Here, in contrast, the Jack in the Box policy burdens the plaintiffs in precisely 

the same manner as non-disabled individuals who wish to purchase food when 

indoor dining is not available at the restaurants and do not drive or have access to 

motor vehicles. Nor do ADA regulations give special solicitude to those who wish 

to obtain takeout meals when restaurant dining rooms are closed. Finally, there is 

no indication in the legislative history that Congress meant to do so. The district 

court did not err in dismissing the operative complaint. 
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AFFIRMED.
Szwanek v. Jack in the Box, Inc., No. 20-16942

WATFORD, Circuit Judge, dissenting:

I think the plaintiffs have alleged a viable claim for discrimination under 

Title III of the Americans with Disabilities Act (ADA), at least for purposes of 

surviving a motion to dismiss. I would therefore reverse and remand for further 

proceedings.

The ADA defines the concept of “discrimination” more broadly than other 

anti-discrimination statutes. Title III contains a general prohibition stating that no 

person “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.” 42 U.S.C. § 12182(a). 

Key here is a provision that defines discrimination to include “a failure to make 

reasonable modifications in policies, practices, or procedures, when such 

modifications are necessary to afford such goods, 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.” § 12182(b)(2)(A)(ii).

This latter provision goes beyond merely requiring disabled patrons to be 

treated the same as non-disabled patrons. Indeed, in some situations, treating 

FILED

NOV 3 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 3

disabled patrons the same as non-disabled patrons is the very conduct prohibited 

by this provision. As we noted in Fortyune v. American Multi-Cinema, Inc., 364 

F.3d 1075 (9th Cir. 2004), “the ADA defines discrimination as a public 

accommodation treating a disabled patron the same as other patrons despite the 

former’s need for a reasonable modification.” Id. at 1086. Thus, preferential 

treatment of the disabled is sometimes required by the ADA. See, e.g., id.

(requiring movie theater to ensure that a disabled patron’s companion could be 

seated next to him); see also US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) 

(“preferences will sometimes prove necessary to achieve the Act’s basic equal 

opportunity goal”).

In this case, it is true that Jack in the Box’s policy is facially even-handed: 

All patrons, disabled or not, are required during certain hours to use the drive-thru

to obtain access to the goods Jack in the Box offers. But that fact alone does not 

render Jack in the Box’s policy non-discriminatory. “We have repeatedly 

recognized that facially neutral policies may violate the ADA when such policies 

unduly burden disabled persons, even when such policies are consistently 

enforced.” McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004); see 

also Crowder v. Kitagawa, 81 F.3d 1480, 1484–85 (9th Cir. 1996). The drivethru-only policy unduly burdens the blind because, as a result of their disability, 

they are unable to drive. It is irrelevant that other people are also unable to access 
Page 3 of 3

Jack in the Box’s goods because they cannot drive for reasons not protected under 

the ADA. The blind (and others whose disabilities preclude them from driving) 

are entitled to a reasonable modification of the drive-thru-only policy because that 

is what’s necessary to afford them “full and equal enjoyment” of the goods Jack in 

the Box offers. 42 U.S.C. § 12182(a); see Baughman v. Walt Disney World Co., 

685 F.3d 1131, 1135 (9th Cir. 2012). Even if affording such an accommodation to 

the blind is regarded as “preferential” treatment, such accommodations “are not 

only contemplated by the ADA, they are required.” Fortyune, 364 F.3d at 1086.

The remaining concerns Jack in the Box raises must be addressed at a later 

stage of the proceedings. The modifications plaintiffs request must of course be 

reasonable, taking into account the costs of such modifications, disruption of the 

entity’s business, and safety concerns. Baughman, 685 F.3d at 1135; Fortyune, 

364 F.3d at 1083. If the plaintiffs’ requested modifications are ultimately found to 

be reasonable, Jack in the Box can still avoid liability if it shows that implementing 

the modifications would “fundamentally alter” the nature of the goods it provides. 

42 U.S.C. § 12182(b)(2)(A)(ii). Those issues cannot be resolved in this case on a 

motion to dismiss, which is why the plaintiffs’ claims should have been allowed to 

proceed.