Giluso v. Burberry Limited

Background

Michael Thomas Giluso alleged that Burberry Limited discriminated against him because of his disability when an employee refused to let him enter a Burberry store with his service dog. Giluso said he has physical and mental health conditions, including Type 2 Diabetes and post-traumatic stress disorder, and relies on his service dog, Vito, for emotional support and medical assistance.

On March 14, 2023, Giluso and his husband went to a Burberry store at the Santana Row mall in San José, California. A security guard and then a Burberry employee told Giluso that dogs were not allowed because the store had new carpeting. Giluso and his husband explained that Vito was a trained service dog, but the employee still refused to let Giluso enter and threatened to call police or security if he did not leave. Giluso said the incident triggered his post-traumatic stress disorder and caused him to increase his monthly therapy appointments. He had not returned to Burberry.

Giluso sued under the Americans with Disabilities Act (ADA), seeking declaratory and injunctive relief, and under California’s Unruh Civil Rights Act, seeking money damages. Burberry moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction. Burberry argued that Giluso lacked standing because Burberry had a service-animal policy in place before the incident and that the case became moot after Burberry told Giluso about the policy during a settlement meeting.

Court’s analysis

The court explained that Article III standing requires an injury, a connection between the injury and the defendant’s conduct, and a likelihood that judicial relief could remedy the injury. The parties did not dispute that Giluso had suffered an injury and that Burberry’s conduct caused it. The court concluded that Giluso’s denial of service because he used a service dog was the type of injury for which the ADA allows injunctive relief.

The court rejected Burberry’s argument that its service-animal policy eliminated Giluso’s ability to seek an injunction. Burberry claimed the policy already required its stores to admit service animals. But an employee allegedly denied Giluso entry even though Burberry said the policy was already in effect. The court reasoned that the policy was either ineffective or not followed at the store. Burberry’s supporting declaration described when the policy was in place and how it had been communicated, but did not explain how Burberry enforced the policy or ensured that stores followed it.

The court also rejected Burberry’s mootness argument. A case is moot when later events have completely and permanently eliminated the effects of the alleged violation and there is no reasonable expectation that the violation will happen again. The court found that merely telling Giluso about the policy did not eliminate the possibility that he could again be denied entry, because the policy had allegedly failed to prevent discrimination before. Giluso was not required to return to the store and risk another denial in order to maintain his standing.

The court distinguished cases involving physical or structural barriers that defendants had repaired. According to the court, structural changes involving time and expense may be unlikely to be reversed, while Burberry had not shown any change in its policy or practices that would prevent another service-animal access problem.

Disposition

The court held that Burberry had not met its burden to show that Giluso’s claims were moot. Judge P. Casey Fitts therefore denied Burberry’s motion to dismiss. The opinion did not decide whether Burberry ultimately violated the ADA or the Unruh Civil Rights Act.