Mendez v. Edelman Shoe, Inc.

Background

Himelda Mendez brought the action on behalf of herself and other similarly situated people. She alleged that she is legally blind and uses Braille to read written materials. According to the amended complaint, she called Edelman Shoe’s customer service office on November 1, 2019, to ask about buying a gift card containing Braille. She alleged that the representative told her Edelman Shoe did not sell gift cards with Braille and did not offer an alternative aid. Mendez alleged that, without an aid, she could not access the gift-card number, balance, terms, or conditions, and therefore could not complete a transaction online or by telephone.

Mendez sought a permanent injunction requiring Edelman Shoe to change its policies and sell gift cards with auxiliary aids for blind and visually impaired customers. She asserted claims under Title III of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. Edelman Shoe moved to dismiss the amended complaint.

Standing

The court first addressed standing, meaning whether Mendez had shown that she was entitled to bring the lawsuit. A person seeking an injunction must allege a real and immediate threat of future harm. In an accessibility case, the court applied a test asking whether the plaintiff experienced a past disability-related injury, whether the discriminatory treatment was likely to continue, and whether the plaintiff plausibly intended to return to the location involved.

The court found that Mendez adequately alleged a past injury because she called Edelman Shoe to ask about a Braille gift card and was told that the company did not stock one. Her allegation that Edelman Shoe did not plan to begin selling Braille gift cards was enough to support an inference that the alleged problem would continue.

The court nevertheless held that Mendez had not alleged enough specific facts showing an intent to return. Her allegations that she had previously been a customer, lived close to at least one Edelman Shoe location, and intended to immediately purchase a Braille gift card if one became available were, in the court’s view, generic and conclusory. The court therefore concluded that she lacked standing to pursue the federal claim. The parties agreed that the state and city claims were governed by the same federal standing standards, so the court found that Mendez also failed to establish standing for those claims. The court added that, after dismissing the federal claim, it would decline to exercise supplemental jurisdiction over the state and city claims.

Failure to State an ADA Claim

The court also held, alternatively, that Mendez failed to state a legally valid claim under Title III of the ADA. Title III prohibits disability discrimination in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. The court identified the usual elements as disability, operation of a place of public accommodation by the defendant, and discrimination within the meaning of the statute.

Mendez argued that gift cards were a service requiring auxiliary aids, that gift cards themselves were places of public accommodation, and that Edelman Shoe discriminated by refusing to provide a Braille gift card. The court rejected each theory. It ruled that gift cards are goods rather than services, and that they are neither public accommodations nor places. Because gift cards are goods, the court concluded that Title III and the cited regulation did not require Edelman Shoe to change its inventory by offering accessible gift cards.

The court also addressed the requirement to provide auxiliary aids and services when necessary for effective communication. It explained that a public accommodation has flexibility in choosing the aid or service, so long as the chosen method provides effective communication. Mendez alleged that Edelman Shoe offered no alternative aids, but she had not tried to learn whether the company could provide other aids or services. The court therefore found that she had not plausibly alleged that Edelman Shoe failed to offer alternatives.

Disposition

Judge Edgardo Ramos granted Edelman Shoe’s motion to dismiss the amended complaint. The order allowed Mendez to file a second amended complaint, if at all, by November 20, 2020. If she did not file one by that date, the clerk was directed to enter a final judgment of dismissal and terminate the case. The opinion does not specify that the dismissal is with or without prejudice.