Mendez v. BG Retail, LLC

Background

Himelda Mendez, who is legally blind and proficient at reading braille, alleged that BG Retail LLC, doing business as Famous Footwear, violated Title III of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law by failing to offer braille gift cards. BG Retail moved to dismiss the First Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The court noted that the allegations and parties’ submissions were nearly identical to those in a prior related proceeding. The court treated the allegations in the First Amended Complaint as true for purposes of deciding the motion.

Standing

The court held that Mendez had standing to sue at this stage. The complaint alleged that she encountered a barrier when she requested and was denied a braille gift card and was not offered an auxiliary aid. It also alleged that an employee said BG Retail did not sell braille gift cards, supporting an allegation that the company was not in the practice of selling them. The complaint further alleged that Mendez had previously been a customer and intended to purchase a store gift card when accessible cards became available. The court found these allegations sufficient at this stage.

Americans with Disabilities Act claim

The court held that the ADA did not require BG Retail to offer gift cards in braille. The ADA requires a public accommodation to modify its policies, practices, or procedures so that its goods and services are available to people with disabilities, but it does not require the entity to modify the goods or services themselves. Because gift cards were goods in BG Retail’s inventory, the court ruled that the ADA did not require the company to alter them by providing braille versions.

The court also rejected Mendez’s argument that the gift cards themselves were places of public accommodation. It reasoned that the ADA’s listed categories of public accommodations describe facilities that provide goods or services and do not include gift cards.

The complaint alleged that Mendez could not determine information such as a gift card’s balance, terms and conditions, or identification number without an auxiliary aid or service. The court recognized that the ADA requires information to be communicated effectively so that disabled people are not treated differently. However, it found the complaint insufficient because Mendez alleged only that she asked whether BG Retail sold braille gift cards. She did not allege a conversation about whether other auxiliary aids or services were available. Her statement that, on information and belief, BG Retail did not offer auxiliary aids was conclusory and unsupported by factual allegations.

State-law claims and possible amendment

The court declined to exercise supplemental jurisdiction, meaning authority to hear related state-law claims, over Mendez’s claims under New York State and New York City law. The court concluded that the case was still at an early stage and that the federal claims were being eliminated before trial.

The court dismissed the First Amended Complaint but allowed Mendez to seek permission to file a Second Amended Complaint within 14 days. To do so, she had to file a letter explaining how the proposed complaint would state a claim consistent with the opinion and attach a marked draft. Any amendment could not reassert that BG Retail was required to offer braille gift cards. It could instead attempt to add facts showing that BG Retail did not provide auxiliary aids or services that effectively communicated information on its gift cards to blind people.

Disposition

The court granted BG Retail’s motion to dismiss. Mendez’s letter requesting permission to file a Second Amended Complaint was due July 2, 2020. The court stated that if she did not timely file the letter, it would enter final judgment of dismissal and direct the Clerk of Court to close the case. The Clerk was directed to close docket number 26.