Cook County Record

Sunday, December 8, 2019

Judge severs disability access class action attempt vs Kohl's, says not near enough settlement

By Jonathan Bilyk | Aug 11, 2017


After rejecting an attempt by advocates for those with disabilities to turn their lawsuit over accessibility standards at Kohl’s department stores into a nationwide class action against the retailer, a federal judge has separated the cases, saying he does not hold out much hope the parties will agree to a settlement to resolve their disputes over such things as the width of Kohl’s store aisles and whether stores lived up to the retail chain’s “Shopability Standards.”

On Aug. 11, U.S. District Judge Ronald Guzman ordered a group of five plaintiffs, who each, through the Washington, D.C.-based advocacy group the Equal Rights Center, had complained Kohl’s did not provide enough access for those in wheelchairs, as required by federal law, to pursue their cases separately in different federal court jurisdictions.

“… The Court concludes that based on the varying facts and circumstances underlying each of Plaintiffs’ claims (which will require testimony from different witnesses located in different cities, and different documentary proof), and in the interests of moving this case forward and facilitating possible settlement on an individual basis, severance of the plaintiffs’ claims is appropriate,” Guzman wrote.

The litigation has been pending in Chicago federal court since 2014, when the ERC and the six named plaintiffs first introduced their litigation, accusing Kohl’s of violating the federal Americans with Disabilities Act, a 1992 law which requires public places, such as retail stores, among others, to provide similar access to facilities for those with disabilities, and a New York state disability access law.

The named plaintiffs included Devora Fisher, of Illinois; Edith Prentiss, of New York; Monica Kamal, of Wisconsin; Jean Ryan, of New York; Patricia Thomas, of California; and Eugene Kelly, of California.

The ERC had sought to expand the case to include a class of additional plaintiffs across the country, saying “access barriers” at Kohl’s stores were a result of a nationwide policy at the retail chain.

The ERC had asked the court to award compensatory and punitive damages, and require Kohl’s to “modify their policies, practices and procedures to comply with the ADA” and “remove architectural barriers at all Kohl’s department stores.”

In May, however, Judge Guzman had rejected the class certification bid, saying he believed Kohl’s practice of allowing individual store management latitude in how Kohl’s stores are laid out would make it difficult for the plaintiffs to prove the retailer had a nationwide policy that discriminated against people in wheelchairs.

In the months since that decision, the ERC and Kohl’s have been engaged in talks to settle some of the questions at the heart of the case, specifically issues other than the width of the stores’ aisles, the judge said in his Aug. 11 memorandum.

This, plaintiffs said, would “narrow the legal issues,” and give the judge time to address questions concerning aisle width and determine “whether Kohl’s ‘Shopability Standards’ are readily achievable under the (ADA) … at one hearing and that determination would be applicable to [all of] the Plaintiffs.”

The judge, however, said he did not believe such a proposal was workable, in light of his class certification decision, and the state of the litigation.

“… The Court does not have high hopes that these parties can agree to anything,” the judge said. “This case is nearly three years old and the parties have been attempting settlement … for months, if not years.

“While apparently relatively close to settlement at times, the parties have been unable to seal the deal. Therefore, the Court does not perceive that waiting for a potential resolution to the non-aisle width claims can be a worthwhile endeavor at this point in time.”

Further, the judge said, hearing the cases together, even if separate, could be confusing, particularly for a jury.

The judge said he would retain jurisdiction over Fisher’s claims, but would send the remaining claims to other appropriate federal jurisdictions. The plaintiffs could then ask that court to transfer the case to another jurisdiction, should they wish.

The plaintiffs were represented in the action by attorneys with the firm of Robbins, Salomon & Patt Ltd., of Chicago, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, of Washington, D.C.

Kohl’s was represented by attorneys with the firm of Baker & Hostetler LLP, of Chicago and Orlando, Fla.

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Organizations in this Story

Robbins, Salomon & Patt, LtdBaker and HostetlerU.S. District Court for the Northern District of IllinoisKohl's Corporation HQ