Chapman v. Pier 1 Imports (U.S.) Inc. , 779 F.3d 1001 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BYRON CHAPMAN, No. 12-16857
Plaintiff-Appellee,
D.C. No.
v. 2:04-cv-01339-
LKK-DAD
PIER 1 IMPORTS (U.S.) INC., DBA
PIER 1 IMPORTS #1132,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
November 19, 2014—San Francisco, California
Filed March 5, 2015
Before: Marsha S. Berzon and Johnnie B. Rawlinson,
Circuit Judges, and Elaine E. Bucklo, Senior District
Judge.*
Opinion by Judge Berzon
*
The Honorable Elaine E. Bucklo, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
2 CHAPMAN V. PIER 1 IMPORTS
SUMMARY**
Americans with Disabilities Act
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of the plaintiff in an
action under Title III of the Americans with Disabilities Act.
The district court held that the obstructions in shopping
aisles and on a sales counter that the plaintiff encountered on
numerous visits to a Pier 1 store violated his rights under the
ADA, and entered a permanent injunction against Pier 1.
Affirming in part, the panel held that the obstructed aisles
the plaintiff encountered were not permissible “isolated or
temporary interruptions in . . . access” under the ADA
Accessibility Guidelines, 28 C.F.R. § 36.211(b), because the
evidence demonstrated that Pier 1 repeatedly failed to
maintain accessible routes in its store.
The panel reversed, however, the district court’s grant of
summary judgment on the plaintiff’s claim as to an accessible
sales counter. The panel remanded to the district court to
modify the injunction consistent with its opinion.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHAPMAN V. PIER 1 IMPORTS 3
COUNSEL
Minh N. Vu (argued), Seyfarth Shaw LLP, Washington, D.C.;
Eden Anderson, Seyfarth Shaw LLP, San Francisco,
California, for Defendant-Appellant.
Scottlyn J Hubbard IV, Law Offices of Lynn Hubbard, Chico,
California, for Plaintiff-Appellee.
OPINION
BERZON, Circuit Judge:
Byron Chapman, a wheelchair user, challenged numerous
alleged barriers to access at Pier 1 Imports (U.S.) Inc.’s store
in Vacaville, California (the “Store”) in a suit first filed in
2004. Chapman claimed that the alleged barriers denied him
“full and equal” access to the Store in violation of the
Americans with Disabilities Act (“ADA” or “the Act”).
42 U.S.C. § 12182(a). Seven years later, after an appeal to
this Court, the district court held that the obstructions in
shopping aisles and on sales counters Chapman encountered
on numerous visits to the Store violated his rights under Title
III of the ADA, 42 U.S.C. § 12181 et seq. Having so
concluded, the court granted Chapman’s motion for summary
judgment and enjoined Pier 1 from obstructing its aisles and
counters in the future.
Pier 1 appeals, arguing that the alleged obstructions are
“temporary” barriers to access under the ADA’s
implementing regulations and so do not violate Chapman’s
rights under the Act. 28 C.F.R. § 36.211(b). We affirm in
part, reverse in part, and remand.
4 CHAPMAN V. PIER 1 IMPORTS
I. Background
This appeal is another chapter in this case’s lengthy
history. Byron Chapman is disabled by a spinal cord injury
and requires the use of a motorized wheelchair when
traveling in public. In July 2004, Chapman sued Pier 1 under
the ADA, 42 U.S.C. § 12181 et seq., the Disabled Persons
Act, Cal. Civ. Code § 54 et seq., and the Unruh Civil Rights
Act, Cal. Civ. Code § 51 et seq.1 Chapman’s 2004 Complaint
requested injunctive relief requiring the Store to remove
numerous barriers. Some of those barriers Chapman had
personally encountered during his visits to the Store; others
he had not, but, he alleged, they might impede his access
during future visits. The challenged barriers — both those he
had encountered and those he had not — were listed in an
“Accessibility Survey” attached to the Complaint.
The parties filed cross-motions for summary judgment.
Chapman’s motion appended a new and separate list of
unencountered barriers identified by his accessibility expert,
Joe Card. See Chapman v. Pier 1 Imports (U.S.) Inc.,
631 F.3d 939, 943–44 (9th Cir. 2011) (en banc). The district
court granted summary judgment for Pier 1 as to many of the
challenged barriers, but ruled for Chapman as to seven
barriers listed in the Card Report, none of which Chapman
had personally encountered at the Store. See id. at 944.
1
Chapman’s state claims are entirely dependent on his ADA claim. He
does not allege any conduct beyond that alleged to violate the ADA. See,
e.g., Cal. Civ. Code § 51(f) (“A violation of the right of any individual
under the [ADA] shall also constitute a violation of this section”); Cal.
Civ. Code § 54(c) (“A violation of the right of any individual under the
[ADA] also constitutes a violation of this section”).
CHAPMAN V. PIER 1 IMPORTS 5
Pier 1’s position on appeal was that Chapman did not
have Article III standing to challenge unencountered alleged
barriers. Sitting en banc, we “clarif[ied] that when an ADA
plaintiff has suffered an injury-in-fact by encountering a
barrier that deprives him of full and equal enjoyment of the
facility due to his particular disability, he has standing to sue
for injunctive relief as to that barrier and other barriers related
to his disability, even if he is not deterred from returning to
the public accommodation at issue.” Id. at 944. But, we
held, Chapman still lacked standing under this standard to
litigate his ADA claim. His complaint, we explained, did not
allege “which, if any, of the alleged violations deprived him
of the same full and equal access that a person who is not
wheelchair bound would enjoy . . . [or] identify how any of
the alleged violations threatens to deprive him of full and
equal access due to his disability if he were to return to the
Store, or how any of them deter him from visiting the Store
due to his disability.” Id. at 955. We therefore vacated the
grant of summary judgment and remanded to the district
court.
After remand, Chapman filed a Second Amended
Complaint, alleging that on numerous visits to the Store he
had encountered two specific barriers violative of his rights
under the ADA. First, he alleged, the Store’s “customer
service counter for disabled patrons” was cluttered by
merchandise, a condition which prevented customers with
disabilities from easily purchasing items. Second, he
claimed, the Store did not maintain accessible routes for
wheelchair users, as the Store’s aisles were often obstructed
with merchandise and other items. According to Chapman,
these barriers interfered with his ability to “use and enjoy the
goods, services, privileges, and accommodations offered at
the store,” and denied him “full and equal access.”
6 CHAPMAN V. PIER 1 IMPORTS
Moreover, he alleged, Pier 1 “knew that these elements and
areas of the stores were inaccessible, violate state and federal
law, and interfere with (or deny) access to the physically
disabled.”
Pier 1 once again filed a motion for summary judgment,
this time contending that any obstructions of the sales counter
or the store aisles were “temporary,” and so not violations of
the ADA. More specifically, Pier 1 argued that the
obstructions at the Store fell within the scope of DOJ
regulations providing that “isolated or temporary”
obstructions to accessibility do not violate the ADA. In
support of its motion for summary judgment, Pier 1 submitted
declarations by Kim R. Blackseth, Pier 1’s disability
accessibility expert, and Tracy Snow, the Store’s manager
since November 2004.
Blackseth stated in his expert report that (1) on the date of
his inspection, the Store’s customer service counter was
“clear of goods”; (2) the “aisles throughout the store were the
required minimum 36” wide and clear of goods”; and (3) he
was “able to navigate the aisles in [his] electric Invacare
wheelchair.” The report contained photographs from the
November 2011 inspection, depicting three aisles clear of
obstructions.
According to Snow’s declaration, she had “been a part of
Pier 1 [sic] efforts to assist its mobility-impaired customers
and to ensure the stores aisles are 36 inches wide, pursuant to
Pier 1’s policy.” Snow explained that the Store’s monthly
merchandise plans directing employees on how to place
merchandise for display “always include an instruction to
maintain an aisle-width of at least 36 inches for the shopping
aisles.” She went on to report that because customers
CHAPMAN V. PIER 1 IMPORTS 7
commonly move merchandise around the Store, and because
Store employees must move merchandise for customers or for
stocking purposes, the Store “ha[d] adopted a number of
strategies for ensuring the Store’s shopping aisles” remained
accessible — for example, directing that employees regularly
walk around the Store with a yard stick to measure the width
of Store aisles. Moreover, Snow stated, she and two other
managers had personally measured all the shopping aisles at
the Store, finding each to be at least 36 inches wide.
Chapman opposed Pier 1’s motion and filed a cross-
motion for summary judgment. He explained that on each of
his eleven visits to the Store in 2011 and 2012, aisles were
obstructed by merchandise or other items, such that “there
were times that [he] could not reach or get to certain items,
height or not, due to the aisles being blocked.” Additionally,
on at least on two occasions, the store’s accessible sales
counter, designed to be used by Pier 1 customers using
wheelchairs, was cluttered with objects.
Chapman enlisted expert Joe Card once again to support
his position. Card inspected the Store’s aisles and accessible
counter and reported numerous obstructions. Relying upon
a number of photographs he had taken of alleged barriers, as
well as his wife’s declaration and the Card report, Chapman
argued that there is no genuine dispute of material fact
concerning whether merchandise blocked accessible routes
and counters during his eleven visits to the store. He
contended that these barriers were “not temporary, isolated
occurrences . . . but, rather, a systematic pattern of abuse
against the disabled.”
The district court denied Pier 1’s motion for summary
judgment and granted summary judgment to Chapman. First,
8 CHAPMAN V. PIER 1 IMPORTS
the district court rejected Pier 1’s argument that the ADA
does not apply to movable obstructions, because Chapman
himself, or store employees upon request, could clear the
items.2 “DOJ commentaries — and the ADA itself — refer
to an obligation that defendant bears,” the court observed, and
the ADA was intended “to eliminate the stereotype of the
helpless disabled person completely reliant on the assistance
of able-bodied persons to come to their rescue.” Therefore,
the court ruled, accessible facilities “must be maintained in a
condition that allows a disabled person to actually use them.”
The district court then turned to Pier 1’s defense that the
barriers were only “temporary,” and so did not violate the
ADA. Noting that the applicable ADA regulations exempt
liability for “isolated or temporary” interruptions in the
availability of accessible features, the district court explained
that applicable interpretive authorities indicate that
“‘[t]emporary,’ as used in this context, is closer to
‘transitory,’ that is, an object that is unavoidably placed in the
aisle, but with the intention of removing it as soon as
possible.” For instance, Pier 1’s defense would be applicable
where “boxes [were] temporarily placed in an accessible
route while being moved from, say, ‘the hall to the storage
room.’” The district court found that Chapman’s declaration
and his expert report sufficiently established that the barriers
Chapman encountered at the Store were not “transitory” in
this sense.
2
Pier 1 argued in the district court that “movable obstructions” do not
violate the ADA. It does not appeal, however, the district court’s
conclusion that “nothing in the [DOJ’s] commentaries or its technical
assistance materials — nor in the ADA itself, its implementing regulations
or the ADA Accessibility Guidelines . . . state or imply that ‘movable
obstructions’ cannot violate the ADA.”
CHAPMAN V. PIER 1 IMPORTS 9
After determining that Pier 1 failed to establish any other
defense or genuine dispute of fact, the district court granted
summary judgment to Chapman on his ADA claim and the
dependent state law claims. The district court accordingly
issued a permanent injunction enjoining Pier 1 from
(1) blocking its aisles with merchandise or other items,
“except for the unavoidable transitory blockages caused by
re-stocking and similar activities”; and (2) cluttering its
accessible sales counter with materials other than the
“unavoidable transitory clutter resulting from the current use
of that counter to check-out merchandise.” Pier 1 timely
appealed.
II. Statutory and Regulatory Provisions
The ADA “provide[s] a clear and comprehensive national
mandate for the elimination of discrimination against
individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title
III of the Act, at issue here, “prohibits discrimination against
the disabled in the full and equal enjoyment of public
accommodations.” Spector v. Norwegian Cruise Line Ltd.,
545 U.S. 119, 128 (2005) (citing 42 U.S.C. § 12182(a)).
Retail stores, like Pier 1, are public accommodations.
42 U.S.C. § 12181(7)(E). The general anti-discrimination
prohibitions of Title III, id. § 1282(b)(1), are supplemented
by various, specific prohibitions, including requirements that
entities providing public accommodations must (1) make
“reasonable modifications in polices, practices, or procedures,
when such modifications are necessary” to provide persons
with disabilities full and equal enjoyment, id.
§ 12182(b)(2)(A)(ii); (2) “remove architectural barriers . . . in
existing facilities . . . where such removal is readily
achievable,” id. § 12182(b)(2)(A)(iv); and (3) “design and
10 CHAPMAN V. PIER 1 IMPORTS
construct facilities . . . that are readily accessible to and
usable by individuals with disabilities,” id. § 12183(a)(1).
The regulations implementing ADA Title III, see id.
§12186(b), require that a public accommodation “maintain in
operable working condition those features of facilities and
equipment that are required to be readily accessible to and
usable by persons with disabilities by the Act or this part.”
28 C.F.R. § 36.211(a). “Whether a facility is ‘readily
accessible’ is defined, in part, by the ADA Accessibility
Guidelines (‘ADAAG’),” which “lay out the technical
structural requirements of places of public accommodation.”
Chapman, 631 F.3d at 945 (internal citations and quotation
marks omitted); see 28 C.F.R. pt. 36, app. A (1991 ADAAG
Standards).3 “The ADAAG’s requirements are as precise as
they are thorough, and the difference between compliance
and noncompliance with the standard of full and equal
enjoyment established by the ADA is often a matter of
inches.” Chapman, 631 F.3d at 945–46. “We have held that
‘obedience to the spirit of the ADA’ does not excuse
noncompliance with the ADAAG’s requirements.” Id. at 945
(quoting Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th
Cir. 2001)).
Three regulatory requirements underlie the current
dispute. The ADAAG provide that “[t]he minimum clear
width of an accessible route shall be 36 in[ches].” 28 C.F.R.
pt. 36, app. A, § 4.3.3. The ADAAG also specify that, “[i]n
department stores and miscellaneous retail stores where
counters have cash registers and are provided for sales or
distribution of goods or services to the public, at least one of
3
Available at http://www.ada.gov/1991standards/adastd94-archive.pdf
(last visited on February 24, 2015).
CHAPMAN V. PIER 1 IMPORTS 11
each type shall have a portion of the counter which is at least
36 in (915mm) in length with a maximum height of 36 in
(915 mm) above the finish floor.” Id., § 7.2(1). Finally, the
generally applicable regulations explain that the requirement
that public accommodations maintain “readily accessible”
facilities and equipment “does not prohibit isolated or
temporary interruptions in service or access due to
maintenance or repairs.” 28 C.F.R. § 36.211(b) (emphasis
added). The parties’ disagreement centers on the latter
provision as applied to the aisle clearance width and
accessible counter requirements.
Fleshing out the import of § 36.211(b), the Technical
Assistance Manual (“Manual”)4 published by the DOJ
“pursuant to Title III’s directive to provide technical
assistance to covered entities,” Miller v. California Speedway
Corp., 536 F.3d 1020, 1026 (9th Cir. 2008), provides that
“[w]here a public accommodation must provide an accessible
route, the route must remain accessible and not blocked by
obstacles such as furniture, filing cabinets, or potted plants,”
Manual § III-3.7000.5 It also explains that “[a]n isolated
instance of placement of an object on an accessible route
would not be a violation, if the object is promptly removed.”
Id. DOJ commentaries to the final rule revising Title III’s
implementing regulations similarly note that “a temporary
interruption that blocks an accessible route, such as
restocking of shelves,” is permitted by § 36.211(b). 75 Fed.
4
Available at http://www.ada.gov/taman3.html (last visited Feb. 24,
2015).
5
The Manual, as the DOJ’s interpretation of its own regulations, is
entitled to “substantial deference.” See Miller, 436 F.3d at 1028.
12 CHAPMAN V. PIER 1 IMPORTS
Reg. 56,236, 56,270 (Sept. 15, 2010).6 Like the Manual, the
commentaries recognize that “accessible routes” or “other
feature[s]” cannot be “built in compliance with the ADA,
only to be blocked or changed later so that it is inaccessible,”
73 Fed. Reg. 34,508, 34,523 (June 17, 2008):
A common problem observed by the
Department is that covered facilities do not
maintain accessible routes. For example, the
accessible routes in offices or stores are
commonly obstructed by boxes, potted plants,
display racks, or other items so that the routes
are inaccessible to people who use
wheelchairs. Under the ADA, the accessible
route must be maintained and, therefore, these
items are required to be removed. If the items
are placed there temporarily—for example, if
an office receives multiple boxes of supplies
and is moving them from the hall to the
storage room—then § 36.211(b) excuses such
“isolated or temporary interruptions.”
Id.
Also of some relevance, at least by analogy, is the DOJ’s
guidance with respect to the maintenance of equipment. The
Manual explains that, while mechanical failures in
“equipment such as elevators or automatic doors” are bound
6
The DOJ issued a notice of proposed rulemaking in 2008 proposing
amended regulations designed to adopt updated accessibility standards and
otherwise revise existing Title III regulations. See 73 Fed. Reg. 34,508
(June 17, 2008). A final rule adopting these updates and revisions issued
in 2010. See 75 Fed. Reg. 56,236 (Sept. 15, 2010).
CHAPMAN V. PIER 1 IMPORTS 13
to happen, “the obligation to ensure that facilities are readily
accessible to and usable by individuals with disabilities would
be violated, if repairs are not made promptly or if improper or
inadequate maintenance causes repeated and persistent
failures.” Manual § III-3.7000. Likewise, the DOJ
commentaries to the rule implementing Title III state that,
while “temporary obstructions or isolated instances of
mechanical failure would not be considered violations of the
[ADA],” “allowing obstructions or ‘out of service’ equipment
to persist beyond a reasonable period of time would violate
this part, as would repeated mechanical failures due to
improper or inadequate maintenance.” 56 Fed. Reg. 35,544,
35,562 (July 26, 1991) (emphasis added).
III. Analysis
A. Aisles
Applying the interpretive aids just summarized, we
conclude, as did the district court, that the obstructed aisles
Chapman encountered while visiting the Store were not
“isolated or temporary interruptions in . . . access” under
28 C.F.R. § 36.211(b).
Chapman encountered several obstructed and blocked
aisles on each of eleven separate visits to the Store in 2011
and 2012. The photographs Chapman submitted with his
declaration depict a number of aisles that contain
merchandise or other items, resulting in a functional width
measurably less than the 36 inches required under the
ADAAG. Many of the aisles appear inaccessible due to the
presence of large items, such as furniture (armchairs and
tables), or display racks holding merchandise and ladders.
Some of the aisles blocked to wheelchair users would have
14 CHAPMAN V. PIER 1 IMPORTS
been accessible to nondisabled customers, who could have
walked around or along the side of the blockage.
Additionally, Card’s expert report notes that when he
visited the Store — on a different day than Chapman’s visits
— he “witnessed a number of aisles blocked by merchandise
or reduced in width below 36 inches.” The photographs Card
took during his November 3, 2011, inspection confirm that
some of the aisles were blocked to wheelchair users.
To dispute this evidence, Pier 1 submitted, first, an expert
report. The report states that, on two inspections of the Store
in October and November 2011, the “aisles throughout the
store were the required minimum 36” wide and clear of
goods,” and that the expert was “able to navigate the aisles in
[his] electric Invacare wheelchair.” That the Store’s aisles
were clear on two visits by Pier 1’s expert does not create a
triable issue of fact as to the state of the aisles on the eleven
occasions when Chapman visited the Store in 2011 and 2012.
If those occasions are sufficient to demonstrate non-
compliance with the ADA — as we ultimately conclude they
are — it does not matter that there was compliance on two
occasions when Pier 1’s hired expert inspected the Store.
Pier 1’s other factual submission in support of its
summary judgment motion is the Snow Declaration. That
Declaration, Pier 1 maintains, shows that the Store had
“policies and procedures” in place to ensure that the aisles
remained unobstructed by merchandise, and so “undisputably
established that any items that were in the aisles or on the
CHAPMAN V. PIER 1 IMPORTS 15
accessible check-out counter were ‘transitory’ or ‘in transit’
to their proper location.”7
The existence of policies designed to limit obstructions
does not establish that the obstructions that Chapman
encountered were “temporary.” Instead, Chapman’s evidence
demonstrates that these policies and procedures were either
ineffective in preventing frequent blocking of the aisles or
honored in the breach.
Moreover, as the district court observed, “the Snow
Declaration . . . did not ascribe the aisle blockages to
merchandise stocking,” but to the fact that any obstructions
would be moved on request or in time. The DOJ interpretive
authorities make clear that the presence of items in aisles is
not “temporary” for the purposes of § 36.211(b) just because
the obstructing items in the aisles were placed there by
customers and would have been moved on request or
eventually. The presence of blocking items was fairly
frequent during Chapman’s visits to the Store, not a single or
isolated occurrence. Nor is there any indication that the
interruption of access was “due to maintenance or repairs,”
id.; Manual § III-3.7000, or occurred in the course of moving
the items from one place to another, or during re-stocking, see
75 Fed. Reg. at 56,270; 73 Fed. Reg. at 34,523.
We note in this connection that given its frequency, the
aisle access problem must be viewed systemically, not as a
series of individual barriers to access. Removing one
7
The district court excluded the Snow Declaration from consideration
on summary judgment. As we would affirm the grant of summary
judgment to Chapman with or without the Snow Declaration, we do not
consider whether the exclusion was an abuse of discretion.
16 CHAPMAN V. PIER 1 IMPORTS
obstructing object does not assure accessible aisles where it
is likely that soon thereafter another item will be moved and
create a blockage. Thus, the evidence that Chapman
encountered “repeated and persistent failures” in accessing
the aisles, Manual § III-3.7000, confirms that the Store failed
to remedy the problem “promptly,” — that is, within a
“reasonable period of time,” 56 Fed. Reg. at 35,562 —
rendering its maintenance “improper or inadequate.” Manual
§ III-3.7000.
To be sure, the “regulations implementing the ADA do
not contemplate perfect service.” Midgett v. Tri-County
Metro. Transp. Dist. of Or., 254 F.3d 846, 849 (9th Cir.
2001). Consequently, “an isolated or temporary hindrance to
access does not give rise to a claim under the ADA.”
Gilkerson v. Chasewood Bank, 1 F. Supp. 3d 570, 589 (S.D.
Tex. 2014) (citing cases). But the cases so holding have
generally concerned truly isolated failures to maintain readily
accessible facilities.
Foley v. City of Lafayette, Ind., 359 F.3d 925 (7th Cir.
2004), for example, addressed a plaintiff’s claim that a train
station’s failure to clear snow from ramps and repair an
elevator after a weekend of significant snowfall violated the
ADA. Noting that the “train station is, in the normal course
of operation, fully accessible to individuals with disabilities,”
Foley determined that the single “weather-related breakdown
of elevator service” at issue was not a violation of the ADA.
Id. at 928–30. In so holding, the Seventh Circuit explained
that “given the conditions, [the elevator] was repaired
promptly,” and that “there was no evidence from which a
reasonable inference could be drawn that other disabled
persons were denied access because of frequent elevator
breakdowns.” Id. at 930; see also Tanner v. Wal-Mart Stores,
CHAPMAN V. PIER 1 IMPORTS 17
Inc., No. 99-44-JD, 2000 WL 620425, at *6 (D.N.H. Feb. 8,
2000) (holding that a store’s single “failure to remove
shopping carts and failure to properly remove ice and snow
from [a] handicapped parking space does not constitute a
Title III violation”). Likewise, Sharp v. Capitol City Brewing
Co., LLC, 680 F. Supp. 2d 51, 59 (D.D.C. 2010), denied the
plaintiff’s ADA claim based on an empty ADA-compliant
toilet paper dispenser encountered on a single visit to the
defendant restaurant. The court held that the plaintiff “failed
to show that this one instance of the dispenser being empty
was anything more than an ‘isolated or temporary
interruption[ ] in . . . access.’” Id. (alteration in original)
(quoting 28 C.F.R. § 36.211(b)).
Here, in contrast, the evidence demonstrates that Pier 1
repeatedly failed to maintain accessible routes in its Store.
Furthermore, while the defendant did not cause the
obstruction of access in Foley, at least some of the
obstructions here appear to have resulted from the affirmative
actions of Pier 1 and its employees. For example, the large
step ladders obstructing the aisles on Chapman’s visits, were
almost surely placed there by the Store’s staff rather than by
customers. See also Madden v. Del Taco, Inc., 58 Cal. Rptr.
3d 313, 320 (2007) (holding that a restaurant’s placement of
a concrete trash container on entrance ramp, which
“appear[ed] to be a result of the affirmative conduct of
[defendant],” was not exempted under § 36.211(b)).
In sum, Chapman’s evidence establishes that the barriers
he repeatedly encountered in the Store’s aisles were not
“temporary” within the meaning of § 36.211(b). We
therefore affirm the grant of summary judgment to Chapman
on his claim that the Store failed to maintain readily-
18 CHAPMAN V. PIER 1 IMPORTS
accessible aisles, and affirm the denial of summary judgment
to Pier 1.
B. Sales Counter
We reverse, however, the district court’s grant of
summary judgment on Chapman’s ADA claim as to the
accessible sales counter.
Chapman offers insufficient evidence that the obstructions
on the counter violated his rights under Title III of the ADA.
In contrast to the items blocking the aisles for wheelchair
users, the items on the otherwise properly accessible sales
counter depicted in Chapman’s photographs were not a
barrier to the use of the counter by persons with disabilities.
For example, the asserted “clutter[],” on the sales counter
detailed in Chapman’s expert report consisted of “a display
of books in a basket, three coffee cups, and a movable store
telephone.”8 There is no evidence that the presence of these
various small items on the otherwise accessible sales counter
deprived wheelchair users of “full and equal” access to the
use of the counters for their intended use — placing items for
purchase and transacting sales. 42 U.S.C. § 12182(a).
Additionally, the record indicates that the clutter
Chapman encountered at the accessible sales counter caused,
at most, “temporary or isolated interruptions in . . . access”
under § 36.211(b). Notably, unlike the shopping aisles,
which were non-ADA-compliant for wheelchair users on all
8
Snow stated in her declaration that she was present when Chapman’s
expert made a purchase, and that the items on the counter “did not
interfere” with customers placing or purchasing merchandise.
CHAPMAN V. PIER 1 IMPORTS 19
eleven visits Chapman made to the Store in 2011 and 2012,
there were items on the sales counter on only two or three
visits. Moreover, on those occasions, Chapman was
“eventually” able to put the merchandise he wished to
purchase on the counter, after the Pier 1 employee behind the
counter moved the obstructing items. Thus, unlike the aisle
situation, Pier 1 did “promptly remove[]” the obstructing
items from the sales counter, Manual § III-3.7000, so the
difficulty did not “persist beyond a reasonable period of
time,” 56 Fed. Reg. at 35,562.
In sum, Chapman was not entitled to summary judgment
on his ADA claim concerning the accessible sales counter.
IV. Conclusion
We affirm the district court’s grant of summary judgment
on Chapman’s claim that the Store’s failure to maintain
accessible aisles violated his rights under the ADA. We also
affirm the grant of summary judgment on Chapman’s state
law claims, which, as noted above, are entirely dependent on
establishing an ADA violation. We reverse the grant of
summary judgment as to Chapman’s claim concerning the
Store’s accessible sales counter, and remand to the district
court to modify the injunction consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.