190 F. Supp.2d 70 (2002) | Cited 0 times | D. Maine | March 14, 2002


Employees of a Shop `n Save supermarket operated by Defendant HannafordBros. refused to sell alcohol to Plaintiff David Dudley, who suffers froma handicap that gives him the outward appearance of being intoxicated.Dudley sued Hannaford Bros. for violation of the Americans WithDisabilities Act and the Maine Human Rights Act. After a non-jury trial,the parties submitted post-trial briefs (Docket #36, 38) and proposedfindings of fact and conclusions of law (Docket #37, 39). Pursuant toRule 52(a), the Court makes the following Findings of Fact andConclusions of Law. Fed.R.Civ.P. 52(a).


A. Overview

On February 27, 1999, David Dudley stopped at Hannaford Bros.' Shop `nSave supermarket in Gardiner, Maine, to purchase some alcoholicbeverages. When Dudley, who walks with a pronounced limp and slurs hisspeech, attempted to pay for the wine coolers he had selected, the storecashier refused the sale because she believed Dudley was intoxicated.Although Dudley protested that he was disabled and not drunk, storeemployees explained that once the decision not to sell to him had beenmade, the store policy was not to reconsider the decision. Dudley filedthe instant lawsuit to protest their policy.

B. David Dudley's Incapacities

In January 1993, Dudley suffered brain damage in an auto accident thatleft himwith several permanent incapacities. Chief among them are a heavy andconstant slurring of his speech, and muscular control problems thatresult in a pronounced limp. Although he can make himself understood,his speech is often garbled, slow, and complicated by his inability totake even breaths. The Court observed Dudley during his testimony andfound his speech to be awkward and often very difficult to comprehend.Moreover, Dudley's gait and balance are affected by a weakness on oneside resulting from the brain injury. His movements are exceedinglylabored. Although he walks without assistive devices such as a walker orcane, the aid of such devices would not significantly ameliorate hiscondition.

C. The Disputed Incident

On February 27, 1999, Dudley moved from Augusta, Maine, to a newapartment in Gardiner, Maine, with the assistance of several people. Aftercompleting the move, Dudley drove to the Shop `n Save in Gardiner topurchase some alcohol. Dudley entered the store and made his way to thealcohol aisle, where he spent roughly ten to fifteen minutes pricingitems. While in the aisle, he noticed that the store shift leader, ArmandCookson, was observing him from a checkout counter. Dudley finallyselected a four-pack of wine coolers and walked up the aisle towards thecheckout. As he approached, Cookson and cashier Erin Donnell noted hiserratic gait, that his face was flushed and that his eyes were drooping.Before Dudley reached the counter, both decided independently that he wasintoxicated.

When Dudley attempted to pay for the wine coolers, Donnell informed himthat she could not sell them to him because she believed he wasintoxicated. Dudley immediately became upset, threw his hands in theair, and exclaimed something along the lines of "Here we go again!" (SeeTrial Trans. at 125 (Docket #34).) Donnell, taken aback, stepped awayfrom her register, and Cookson, who was standing nearby, moved to speakwith Dudley. He asked Dudley what the problem was, and Dudley explainedto him in a loud and angry voice that he was disabled rather than drunk.Cookson, who at trial admitted that after hearing the explanation hebelieved Dudley may in fact have been disabled rather than intoxicated,nevertheless informed Dudley that once Donnell had refused to sell himalcohol, the store policy was not to reverse that decision under anycircumstances.

Several minutes later, Dudley spoke with the store manager, HenryFossett. He explained his disability to Fossett, this time more calmly,and pointed out to Fossett that he was driving a car with handicaplicense plates and was parked in a handicap parking spot. Fossett, likeCookson, believed that Dudley might indeed be disabled, but alsosuspected that Dudley was under the influence of drugs or alcohol. Heexplained to Dudley that he would not reverse Donnell and Cookson'sposition. Dudley eventually left the store.

D. Hannaford's Alcohol Training Policies

All of the employees who work as cashiers at Hannaford Bros. storesreceive special training to prevent selling alcohol to intoxicatedindividuals. The training program is designed and promoted by Maine lawenforcement agencies. It trains cashiers to recognize telltale signs ofdrunkenness, and emphasizes that they should err on the side of cautionby not selling alcohol to anyone who exhibits the slightest indication ofintoxication. The program stresses this latter point, reminding cashiersthat they may be held personally liable under state liquor laws forselling alcohol tointoxicated persons. The training briefly reminds trainees, however, thatdisabilities may mimic signs of intoxication.

At the Gardiner store it is an unwritten rule that once a cashierrefuses to sell alcohol to a customer, the cashier's supervisors willrarely, if ever, reverse that decision. At trial, Cookson, the shiftmanager, explained that he would never sell alcohol to an individual whohad already been denied by a cashier, nor would he direct the cashier todo so. The store manager, Fossett, explained that once the customer hadbeen declined, he would always back up his cashier by refusing to sellthe customer alcohol, notwithstanding any subsequent evidence that thecustomer was disabled. Only in the "very, very unique" case in which acustomer had alerted him to an intoxication-mimicking disability beforeattempting to purchase alcohol would Fossett reverse a cashier'sdecision. (See Trial Trans. at 106-08 (Docket #34).)


Plaintiff filed suit in this Court alleging violations of Title III ofthe Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (the"ADA" or the "Act"), and the Maine Human Rights Act, 5 M.R.S.A. §4551 et seq. (the "MHRA"). Courts have interpreted the ADA and MHRAstatutes as coextensive. See, e.g., Soileau v. Guilford of Maine, Inc.,928 F. Supp. 37, 45 (D.Me. 1996); Caldwell v. Fed. Express Corp.,908 F. Supp. 29, 36 (D.Me. 1995). Therefore, although the Court onlyaddresses Plaintiff's claims pursuant to the ADA, its conclusions withregard to Defendant's liability apply equally to Plaintiff's MHRA claim.

The ADA prohibits discrimination "on the basis of disability in thefull and equal enjoyment of the goods, services, facilities, privileges,advantages or accommodations of any place of public accommodation."42 U.S.C. § 12182(a). "Discrimination" includes

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. . . .

Id. at § 12182(b)(2)(A)(ii). To recover on a claim for violation ofsection 12182, Plaintiff must show (1) that he is a person with adisability; (2) that Defendant is a public accommodation; (3) that herequested a reasonable modification of Defendant's policy or proceduresthat was necessary to allow him access to the public accommodation asdescribed in section 12182(b)(2)(A)(ii); and (4) that Defendant deniedthe requested modification. See Anderson v. Ross Stores, Inc., No. C99-4056 CRB., 2000 WL 1585269 at *4 (N.D.Cal. Oct. 10, 2000). See also,Johnson v. Gambrinus Company/ Spoetzl Brewery, 116 F.3d 1052, 1058-60(5th Cir. 1997); Dahlberg v. Avis Rent-A-Car Sys., Inc.,92 F. Supp.2d 1091, 1100 (D.Colo. 2000). There is no dispute that asupermarket is a public accommodation within the meaning of the statute.Id. at § 12181(7)(E).

At trial and in post-trial filings, two issues emerged concerningDefendant's liability under the ADA. First, the parties disagree whetherPlaintiff has proven that he was "disabled" within the meaning of theAct. Second, they disagree whether a reasonable modification ofDefendant's policies and procedures was necessary to afford him access tothe public accommodation as described in the Act. See42 U.S.C. § 12182(b)(2)(A)(ii).

A. Was Plaintiff Disabled?

Defendant contends that Plaintiff failed to prove that he was"disabled" within themeaning of the Act. A person is "disabled" under the ADA if he suffersfrom "a physical or mental impairment that substantially limits one ormore . . . major life activities." Id. at § 12102(2)(A). Defendantargues that because Plaintiff is capable of communicating and walking,albeit awkwardly, his limitations are not "substantial."

Whether a person is "substantially limited in a major life activity"requires a fact-specific, case-by-case inquiry. See Toyota Motor Mfg.,Ky., Inc. v. Williams, 122 S.Ct. 681, 691-92 (2002). In Williams, theSupreme Court noted that, among other things, "substantially limited"means "significantly restricted as to the condition, manner or durationunder which an individual can perform a particular major life activity"as compared to the ability of a person in the general population toperform the same activity. Id. at 690 (quoting 29 C.F.R. § 1630.2(j)(2001)). "Substantial limitation" also presumes that the condition ispermanent or long term. Id. at 619 (citing 29 C.F.R. § 1630.2(j)(2)(ii)— (iii) (2001)).

Speaking and walking are major life activities.29 C.F.R. § 1630.2(i). Although Plaintiff can communicate andambulate, the Court finds that his limitations are substantial enough tomerit the protection of the Act. For instance, it is often quitedifficult to discern what Plaintiff is saying due to his difficultyenunciating and modulating his speech. His breaths come in fits, so thathis speech is also somewhat halting. By the same token, althoughPlaintiff is capable of walking unassisted, his gait is exceedinglylabored. Defendant argues, correctly, that a slight impediment, such asbeing able to walk but not run, does not make a person disabled withinthe meaning of the statute. See Williams, 122 S.Ct. at 691 (reasoningthat "substantial" precludes impairments that interfere in a minor waywith a major life activity). Plaintiff, however, is far more thanslightly impeded. Compared to the walk of an average person in thegeneral population, Plaintiff's mobility, balance and fluidity ofmovement are all significantly restricted. In short, Plaintiff isdisabled within the meaning of the Act.

B. Were Reasonable Modifications Necessary?

Defendant next contends that no reasonable modification of the store'spolicies was necessary to "afford [Plaintiff] goods, services,facilities, privileges, advantages or accommodations" that were availableto the store's non-disabled customers. 42 U.S.C. § 12182(b)(2)(A)(ii).The parties' differing conceptions of what modification Plaintiffbelieves he was due complicates the analysis. Plaintiff argues that theGardiner store policy of never reconsidering a cashier's refusal to sellalcohol to a customer should have been modified to allow forreconsideration. He contends that regardless of whether store employeesultimately decide to sell a disabled customer alcohol, they have a dutypursuant to the ADA to reconsider their initial refusal to do so in lightof the customer's explanation of his condition. Defendant, in contrast,argues its case as if Plaintiff is insisting only that the ADA requireshe be allowed to purchase alcohol because of his disability.Accordingly, Defendant argues that its employees treated Plaintiff asthey would have treated any other customer, and that that is all the ADArequires. Moreover, Defendant insists that the Maine liquor lawsprohibiting the sale of alcohol to visibly intoxicated individualsdictated its employees' caution in Plaintiff's case. See 28-A M.R.S.A.§§ 2506(2), 2507(2).

Congress enacted the ADA for the purpose of combating "stereotypicassumptions" about persons with disabilities. 42 U.S.C. § 12101(a)(7).By punishing those assumptions, Congress sought to break down"overprotective rules and policies" that limited disabled persons' accessto public accommodations. Id. at § 12101(a)(5). To accomplish thisgoal, the statute mandates that storeowners make "reasonablemodifications" to their policies or procedures when necessary to allow aperson with a disability equal access to the public accommodation.42 U.S.C. § 12182(b)(2)(A)(ii). A storeowner is relieved of thisresponsibility only if the modification fundamentally alters the natureof the public accommodation, 42 U.S.C. § 12182(b)(2)(A)(ii); PGATour, Inc. v. Martin, 121 S.Ct. 1879, 1893 (2001), or if making themodification poses a "direct threat" to the general public. Bragdon v.Abbott, 524 U.S. 624, 648-49 (1998) (citing 42 U.S.C. § 12182(b)(3)).

At trial, the Gardiner store employees' testimony revealed that it wasstore policy not to reconsider a cashier's refusal to sell alcohol to acustomer showing signs of intoxication, unless the customer had alertedsomeone at the store to a disability that mimicked intoxication prior toattempting the purchase. There was no evidence at trial, however, thatthe store publicized having such a policy, and the parties agree thatPlaintiff did not alert the store employees to his disability until afterthey refused to sell him alcohol. He did, however, request a modificationof their "no-retraction" policy by asking the store employees toreconsider their decision in light of his explanation that he wasdisabled. This, according to Plaintiff, was the modification of storepolicy that he was due pursuant to the ADA.

Defendant argues that this modification would have been superfluousbecause the store employees insisted that they would not have changedtheir minds about selling Plaintiff alcohol even if they hadreconsidered. In support of its position, Defendant cites Jacques v.Clean-Up Group, Inc., 96 F.3d 506 (1st Cir. 1996). In Jacques, a disabledformer employee of a cleaning company sued pursuant to the ADA for thecompany's refusal to engage in an "interactive process" with him to finda reasonable accommodation for his disability. Id. at 513 (citing29 C.F.R. § 1630(o)(3)). At trial, a jury found that the company'sfailure to do so did not violate the ADA because ultimately noaccommodation was feasible. Id. at 514. The First Circuit upheld thejury's decision. Id.

Defendant reasons that Jacques relieved the store employees in thiscase of their duty to reconsider their decision not to sell alcohol toPlaintiff because they would not have sold to him even after having takenevidence of his disability into account. The Court does not agree. The"interactive process" discussed in Jacques is not, as Defendant argues,akin to the moment of reconsideration Plaintiff insists he was due underthe ADA. In Jacques, the interactive process was merely a means ofarriving at reasonable accommodation. Here, the reconsideration Plaintiffrequested from the store employees was the end of the statute itself— a reasonable modification of their policy not to reconsiderrefusals to sell alcohol. 42 U.S.C. § 12182(b)(2)(A)(ii) (failing tomake a "reasonable modification" is a violation of the statute). In otherwords, regardless of whether the store employees ultimately decided notto sell Plaintiff alcohol, they nevertheless had a duty to take hisdisability into account in arriving at their ultimate decision not tosell. The alternativewould be to give Defendant the right to exclude all persons withdisabilities like Plaintiff's from purchasing alcohol, a result clearlycontrary to the intent and the provisions of the ADA. Id. Defendant'spolicy of never reconsidering a refusal to sell alcohol to a customer inlight the customer's revelation of a potentially intoxication-mimickingdisability violated the Act.

Alternatively, Defendant insists that any modification to its policywould have been unreasonable, and therefore that the failure to provideit is excusable. First, it argues that Plaintiff "waived" anymodification that he was due by acting unruly when the cashier refused tosell to him. Although Defendant cites no authority in support of thisproposition, the Court interprets it as a variation on the principle thatan entity is absolved of the duty to accommodate disabilities under theAct if doing so would pose a "direct threat" to the general public.42 U.S.C. § 12182(b)(3); see also Bragdon, 524 U.S. at 648-49. TheCourt cannot agree, however, that this was such a case. The testimony attrial revealed that after an initial outburst of frustration, Plaintiffcalmed substantially. Fossett, the store manager, testified that he andPlaintiff carried on a calm and rational conversation. It would not haveposed a direct threat to anyone at that time for Fossett to re-evaluatethe cashier's decision in light of Plaintiff's explanation that he wasdisabled.

Second, Defendant argues that Maine's liquor laws that punish serversfor selling alcohol to intoxicated persons rendered the modificationPlaintiff requested infeasible. See 28-A M.R.S.A. §§ 2506(2),2507(2). As noted above, Defendant trains its employees not to sellalcohol to a customer if the employee harbors even a kernel of suspicionthat the customer is intoxicated. Defendant insists that forcing them toreconsider that decision in light of a customer's subsequent revelationof disability is simply unrealistic because distinguishing betweendisability and intoxication is often difficult. Defendant's argument isnot without merit. Even when a store employee takes evidence of acustomer's alleged disability into account in deciding whether to sellhim alcohol, the employee may be justified in denying the sale on thebasis of the extreme caution mandated by the statute. That is a differentissue, however, from the case in which the cashier refuses to considerevidence of the customer's disability altogether, merely because she hasalready told the customer that she cannot make the sale. In the formerscenario, a disabled customer retains at least the minimum opportunity toconvince the store employee that he is not intoxicated. In the latter heeffectively has no such opportunity, and that policy violates the ADA andthe MHRA.

C. Remedies

Pursuant to both the ADA and MHRA, Plaintiff is therefore entitled toinjunctive relief from Defendant's discriminatory policy.42 U.S.C. § 12188(a)(1) (incorporating 42 U.S.C. § 2000a-3(a)); 5M.R.S.A. § 4613(2)(B). Moreover, additional remedies such as civilpenal damages and attorney fees are available to Plaintiff pursuant to theMHRA. 5 M.R.S.A. §§ 4613(2)(B)(7) (authorizing up to $10,000 in civilpenal damages), 4614 (authorizing the prevailing party to recover attorneyfees and costs). Ordinarily, to recover these additional remedies,Plaintiff must have filed a timely complaint with the Maine Human RightsCommission ("MHRC"). See 5 M.R.S.A. § 4622(1). Although there was notestimony on point at trial, the parties appear to agree that Plaintiffdid not file a timely claim.

However, the statute contains an exception. Plaintiff may recoverdamages and attorney fees under the MHRA without having filed a timelycomplaint provided he filed a claim that did not require exhaustion ofadministrative remedies, such as a claim under the ADA, in conjunctionwith his MHRA claim. Id.; 42 U.S.C. § 12188(a) (incorporating onlythe procedures delineated in 42 U.S.C. § 2000a-3(a)); see also Stanv. Wal-Mart Stores, Inc., 111 F. Supp.2d 119, 123 (N.D.N.Y. 2000); Wyattv. Liljenquist, 96 F. Supp. 2 d 1062, 1064 (C.D.Cal. 2000). Because hedid so here, Plaintiff is therefore entitled not only to injunctiverelief under the ADA and MHRA, but also to civil penal damages, attorneyfees and costs pursuant to the MHRA. See, e.g., U.S. v. York Obstetrics &Gynecology, P.A., No. 00-8-P-DMC, 2000 WL 1221625 at *7-8 (D.Me. Aug.25, 2000) (citing Johnson, 116 F.3d at 1059).


1. Plaintiff is disabled within the meaning of the ADA, 42 U.S.C. § 12102(2)(A), and MHRA, 5 M.R.S.A. § 4553.

2. Defendant violated Plaintiff's rights pursuant to the ADA, 42 U.S.C. § 12182(b)(2)(A)(ii), and MHRA, 5 M.R.S.A. § 4591, by failing to make reasonable modifications to its policy of not reconsidering a cashier's refusal to sell alcohol to a customer she believes is intoxicated. Specifically, Defendant's employees violated the acts by refusing to reconsider their decision not to sell Plaintiff alcohol once Plaintiff revealed his intoxication-mimicking disability to them.

3. Plaintiff is entitled to injunctive relief, civil penal damages, attorney fees and costs as a result of these violations. 42 U.S.C. § 12188(a)(1); 5 M.R.S.A. §§ 4613(2)(B), 4614.


Pursuant to the above Findings of Fact and Conclusions of Law, theCourt finds Defendant LIABLE to Plaintiff and ORDERS Defendant to ceaseand desist from engaging in a policy of refusing to reconsider a storeemployee's refusal to sell alcohol to a customer when the customersubsequently reveals to the employee that he is disabled. The Courtfurther ORDERS Defendant to pay Plaintiff $5,000.00 in civil penaldamages, and that upon Plaintiff's motion, to be filed within thirtydays, Defendant shall pay Plaintiff's reasonable attorney fees andcosts.


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