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Kamal v. Kohl's Corp.

United States District Court, W.D. Wisconsin

March 5, 2019

MONICA KAMAL, Plaintiff,



         Plaintiff Monica Kamal suffers from a spinal cord injury that requires her to use a wheelchair. She shops at two Kohl's Department Stores, one on the west side of Madison, Wisconsin, and one in Monona, Wisconsin, but she says that both stores are laid out in a way that fails to accommodate her disability, in violation of the Americans with Disabilities Act. Specifically, she alleges in her second amended complaint that the spaces between merchandise displays are too narrow, the changing room entrances are inaccessible, the customer service counters are too high, the doors to the restrooms are too heavy, and the parking is inadequate. She also alleges that defendants have failed to implement and enforce their own accessibility policies related to spacing display racks.

         Both sides have moved for summary judgment. Dkt. 47 and Dkt. 61. Also before the court are two evidentiary motions: (1) defendants' motion to exclude the report and testimony of Kamal's architectural and design expert, Dkt. 62; and (2) a motion to exclude the testimony of two of defendants' witnesses because defendants failed to provide notice of that testimony, Dkt. 78.

         Kamal concedes that Kohl's Corporation is entitled to summary judgment because it is not involved in the operation of the two stores at issue in this case. Dkt. 79, at 2. (For the rest of the opinion, the court will refer to Kohl's Department Stores, Inc. as simply “Kohl's.”) Kamal also concedes that Kohl's is entitled to summary judgment on her claim that the Madison store does not have an accessible customer service desk and her claim that both stores do not have adequate parking. So the court will grant summary judgment to defendants on those claims. As for Kamal's remaining claims, genuine issues of material fact preclude granting summary judgment to either side. The court will also deny the parties' motions to exclude evidence, for the reasons explained below.


         Kamal's claims were originally part of a larger lawsuit filed in 2014 in the Northern District of Illinois, with District Judge Ronald A. Guzman presiding. Fisher v. Kohl's Corporation, No. 14-cv-8259. Fisher included several plaintiffs, including the Equal Rights Center, a nonprofit organization that advocates for disabled persons. The Fisher plaintiffs alleged that Kohl's stores around the country failed to adequately accommodate the use of a wheelchair. In May 2017, Judge Guzman denied the plaintiffs' motion for class certification, in part because the plaintiffs were not challenging “a company-wide policy but daily individual decisions by relevant Kohl's employees in each particular store.” Id., Dkt. 173, at 3. In a separate order, Judge Guzman concluded that each plaintiff's claims should be severed. Id., Dkt. 182, at 3. In January 2018, after Kamal's case was reassigned to a different judge in the Northern District of Illinois, that judge granted Kamal's motion to transfer the case to the Western District of Wisconsin. Kamal v. Kohl's Corp., No. 17-cv-5853, Dkt. 14.

         Since then, none of the severed cases have proceeded to final judgment or trial, but two courts have issued summary judgment decisions. See Thomas v. Kohl's Corp., No. 17 C 5857, 2018 WL 704691 (N.D. Ill. Feb. 5, 2018); Ryan v. Kohl's Corp., No. 17 CV 5854, 2018 WL 4616355 (N.D. Ill. Sept. 26, 2018). The Thomas court denied summary judgment on the plaintiff's claim that Kohl's violated the ADA by failing to maintain adequate spacing between its display racks. 2018 WL 704691, at *5. The Ryan court concluded that the plaintiff had established as a matter of law that Kohl's violated the ADA by failing to provide enough space between its display racks, but the court deferred a ruling on the appropriate remedy. 2018 WL 4616355, at *5.[1]


         Kamal brings her claims under Title III of the ADA, which applies to places of public accommodation. Under Title III's “general rule, ” “[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). The parties agree that Kamal has a disability and that Kohl's is a place of public accommodation. The question is whether Kohl's has “discriminated” against Kamal. Title III defines “discrimination” in various ways, but the parties in this case focus on the definition in 42 U.S.C. § 12182(b)(2)(A)(iv), which prohibits “a failure to remove architectural barriers . . . that are structural in nature . . . where such removal is readily achievable.” Kamal also relies on § 12182(b)(2)(A)(ii), which requires places of public accommodation to make “reasonable modifications” to their “policies, practices, and procedures.”

         The parties devote the bulk of their briefs to Kamal's claim that Kohl's has violated § 12182(b)(2)(A)(iv) by failing to provide enough space for wheelchairs to fit between its movable display racks. Kohl's questions whether movable racks can qualify as “architectural barriers, ” but the court agrees with Ryan and Thomas (as well as several other courts[2]) that they can. This conclusion is consistent with both the ADA's regulations, see 28 C.F.R. § 36.304(b)(4) (including “display racks, ” along with “tables” and “chairs, ” in a list of possible architectural barriers), and the purpose of the ADA. The central question under Title III is whether the defendant is denying a disabled person equal access to a public accommodation, see 42 U.S.C. § 12182(a), so it would make little sense to permit a barrier to remain in place simply because it was movable. If anything, places of public accommodation have more of a duty to eliminate movable barriers because they are generally easier and less costly to remove. See 42 U.S.C. § 12182(b)(2)(A)(iv) (removal of barrier required when doing so is “readily achievable”).

         Kohl's also says that neither the ADA nor the regulations impose specific requirements on spacing between movable racks. This is true, but beside the point. Again, the question is whether Kohl's failed to remove a barrier to Kamal's equal access. Regardless whether the statute or regulations include precise measurements, Kohl's must still comply with that more general requirement.

         A review of the evidence submitted by the parties shows that the parties genuinely dispute whether the movable display racks in the two stores at issue in this case are barriers for Kamal. She testified in her deposition that she visited both stores multiple times and that there were many places in the stores where the spacing between the display racks was too narrow for her wheelchair to fit through. Dkt. 70, ¶ 36.[3] But the two stores' managers (Todd Pralle and Staci Ellen Koller) testified that they follow the Kohl's “Shopability” standards, Dkt. 68 and Dkt. 69, which require at least 30 inches between display racks. Dkt. 49-5. Kamal has acknowledged that, if Kohl's followed those standards, “the aisles would be sufficiently accessible to avoid the need for this litigation.” Dkt. 79, at 21.

         Both sides challenge the admissibility of the other's evidence. Kohl's says that Kamal didn't measure any of the spaces, but, again, this misses the point. The question is not simply whether the spaces between racks were a particular width; the question is whether Kamal was denied equal access. Kamal's own experiences and observations are admissible for that purpose. Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013) (“Even without precise measurements, [the plaintiff] could support his case based on his own personal experience with the barriers.”).

         Kamal challenges the testimony of the store managers on the ground that Kohl's did not adequately disclose that testimony as required by Federal Rule of Civil Procedure 26. She has filed a separate motion to exclude the testimony on that ground. Dkt. 78. But the initial disclosures filed by Kohl's identify Pralle (the Madison store manager) as someone who may testify about “the design, layout, conditions, merchandising, and accommodations” at the Madison store. Dkt. 78-1, at 4. That disclosure is sufficient to give notice of the testimony that Pralle is providing now. And though the disclosures did not identify Staci Ellen Koller (the Monona store manager), they did identify Koller's predecessor, who was the Monona store manager at the time. Dkt. 78-2, at 4. The disclosures also more generally identify as potential witnesses “[a]ny other store managers . . . to the extent that there are additional changes in personnel in these positions.” Id. at 14. Kamal cannot plausibly contend that she could not ...

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