18th Annual Workplace Class Action Report - 2022 Edition

454 Annual Workplace Class Action Litigation Report: 2022 Edition immediately in front;" and (ii) a person using a wheelchair must be able to see the playing surface "over the heads of the persons standing two rows in front." Id . at 1105. The Ninth Circuit ruled that although the District Court recited both requirements, it failed to explain how the evidence satisfied the second requirement of the standard. The Ninth Circuit held that the District Court did not analyze whether spectators using wheelchairs could see over the heads of the spectators standing two rows in front of them. Accordingly, the Ninth Circuit remanded the District Court’s ruling to evaluate the second requirement of the accessible stadiums standard. Liberty Resources, Inc., et al. v. City Of Philadelphia, 2021 U.S. Dist. LEXIS 206994 (E.D. Penn. Oct. 27 2021). Plaintiffs, a group of individuals with disabilities and a disability advocacy group, filed a class action alleging that Defendant violated the Americans With Disabilities Act ("ADA"), and requested both declaratory and injunctive relief. Plaintiffs sought to compel Defendant to complete new construction and alteration to sidewalks and streets that complied with federal accessibility standards, including the installation of ADA- compliant curb ramps and upgrading of non-compliant curb ramps. Id . at *2. The parties filed cross-motions for summary judgement, and the Court denied Plaintiffs’ motion and granted Defendant’s motion. Plaintiffs sought partial summary judgment against Defendant for its policies on curb ramp installation, alteration, and maintenance. Plaintiffs contended that under Defendant’s "Curb Ramp Partnership Program," Defendant stopped upgrading curb ramps during street resurfacings as a matter of course, and only installed them in locations where citizens requested them. Id . at *8. The Court noted that since Plaintiffs had filed this lawsuit, Defendant revised its policy and reverted to installing curb ramps on all streets with resurfacing. Id . at *8-9. The parties submitted the testimony of competing experts on the issue of applicability and adherence to ADA standards with regard to ramps. Plaintiffs conceded that determinations as to technical infeasibility, equitable facilitation, and the applicability of construction tolerances would be more appropriately left to the trial phase. Id . at *9-10. The Court determined that there existed genuine issues of material fact concerning whether specific curb ramps or the absence of curb ramps at specific locations violated the ADA. Accordingly, the Court denied Plaintiffs’ motion for partial summary judgment. Conversely, Defendant moved for summary judgment on Plaintiffs’ claims under § 35.151, the alteration regulation, arguing that for Plaintiffs to obtain any relief they must prove that specific intersections did not comply with the applicable ADA regulations concerning curb ramps. Id . at *12-13. The Court agreed that § 35.151 required site-specific proof. Accordingly, the Court granted Defendant’s motion for partial summary judgment to the extent that Plaintiffs sought to impute liability on Defendant without specific allegations of violations. For these reasons, the Court granted Defendant’s motion for partial summary judgment and denied Plaintiffs’ motion. Magee, et al. v. McDonald ’ s USA, 2021 U.S. Dist. LEXIS 191925 (N.D. Ill. Oct. 5, 2021) . Plaintiff, a blind customer, filed a class action alleging that Defendant discriminated against him on the basis of his disability in violation of the Americans With Disabilities Act (“ADA”) when various franchise locations denied him service when he ordered from the drive-thru window as a pedestrian. Defendant closed its inside restaurant lounge during late-night open hours, and operated solely through the drive-thru window or by selling to rideshare food app delivery services. Plaintiff asserted that Defendant’s action of denying service and thus excluding disabled, non-driving persons like himself from late-night food service violated the ADA. Defendant filed a motion for summary judgement on the grounds that it did not "operate" its franchised restaurants within the meaning of the ADA. Id. at *5. The Court granted Defendant’s motion. Plaintiff visited three separate franchise locations and went through the drive-thru, but was denied service by the franchise due to their standard policy of only providing service through the drive-thru if a customer was in a vehicle. Defendant asserted that within the franchise relationship between it and the franchises, there was nothing to give it authority or control to improve accessibility to the disabled. Id. at *8. Defendant contended that the only purpose of the franchise agreement was to allow a franchisee the rights necessary to operate the restaurant. Id . at *9. Plaintiff asserted that the agreements between Defendant and franchised restaurants exerted the necessary control to make Defendant an operator within the meaning of the ADA. The Court found that the franchise agreement governing the relationship between Defendant and its McDonald’s-branded restaurants did not reserve the franchisor’s right to improve restaurant accessibility, and did not include any provisions addressing policies for late-night service at franchisee restaurants. Further, Defendant’s agreement and the training manual for franchisees did not include any required late-night service procedures for franchisees. The Court opined that the limited autonomy Defendant exercised over the franchisees meant that it was not an operator under the ADA such that summary judgement was appropriate. Defendant further contended that summary judgment was appropriate because it