Fiedler et al v. MHG Cafe Dupont, LLC

MOTION to Dismiss

D.D.C.March 24, 2008

Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 1 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Marc Fiedler, et al., Plaintiffs, v. Civil Action No. 1:08CV00225 (PLF) MHG Café Dupont, LLC, 1601 Connecticut Avenue, N.W. Washington, DC 20009 Defendant. DEFENDANT MHG CAFÉ DUPONT, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OR TO STRIKE CERTAIN ALLEGATIONS F. Joseph Warin, D.C. Bar No. 235978 Jason C. Schwartz, D.C. Bar No. 465837 GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 955-8500 Facsimile: (202) 467-0539 Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 2 of 27 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii I.INTRODUCTION AND SUMMARY OF ARGUMENT............................................................1 II.BACKGROUND..........................................................................................................................1 III.ARGUMENT..............................................................................................................................5 A. Three Of Plaintiffs’ Six Claims Are Now Moot Due To Defendant’s Voluntary Remediation Efforts................................................................................5 B. Plaintiffs’ DCHRA Claims Should Be Dismissed Because The Allegations Of ADA Violations Are Not Sufficient Predicates For The DCHRA Claims. .....................................................................................................................9 1. The DCHRA Does Not Require The Same Affirmative Steps As The ADA....................................................................................................10 2. Plaintiffs’ Claim Fails To State A Claim For Unlawful Discrimination Under The DCHRA. .........................................................17 CONCLUSION..............................................................................................................................17H 9 Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 3 of 27 ii TABLE OF AUTHORITIES Page(s) Cases Am. Fed. of Labor & Cong. of Indus. Orgs. v. Fed. Election Comm'n, 333 F.3d 168 (D.C. Cir. 2003) .......................................................................................................................13 Arthur Young & Co. v. Sutherland, 631 A.2d 354 (D.C. 1993) ....................................................14 Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) ........................................................................9 Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health and Human Res., 532 U.S. 598 (2001)...................................................................................................................7 Chang v. Institute for Public-Private P’ships, Inc., 846 A.2d 318 (D.C. 2004)............................16 Cook v. Edgewood Mgmt. Corp., 825 A.2d 939 (D.C. 2003)........................................................15 East v. Graphic Arts Indus. Joint Pension Trust, 718 A.2d 153 (D.C. 1998) ...............................10 Eiden v. Home Depot USA, Inc., No. Civ. S-04-977, 2006 U.S. Dist. LEXIS 38423 (E.D. Cal. May 26, 2006).......................................................................................................7, 8 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) .......................................8 GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381 (10th Cir. 1997) ........................2, 9 Grant v. May Dep’t Stores Co., 786 A.2d 580 (D.C. 2001) ....................................................14, 16 Green v. DOD Dependent Schools-Europe, 514 F. Supp. 2d 79 (D.D.C. 2007).........................2, 9 Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134 (S.D. Cal. 2006) ................................................8 Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 698 (D. Or. 1997) ..................................7 Mitchell v. Nat’l R.R Passenger Corp., 407 F. Supp. 2d 213 (D.D.C. 2005)................................16 Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Eng’rs, P.C., 950 F. Supp. 393 (D.D.C. 1996) .............................................................................................................15, 16 Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627 (D.C. Cir. 2002).........................................7 Rome v. Lowenthal, 428 A.2d 75 (Md. 1981)................................................................................15 Russello v. United States, 464 U.S. 16 (1983) ...............................................................................14 Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 4 of 27 iii Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93 (D.D.C. 2007) ...............................5, 7, 8 Smith v. City of Jackson, 544 U.S. 228 (2005) ..............................................................................11 Whitbeck v. Vital Signs, Inc., 934 F. Supp. 9 (D.D.C. 1996).........................................................16 Statutes 42 U.S.C. § 12112..........................................................................................................................14 42 U.S.C. § 12113(a) .....................................................................................................................14 42 U.S.C. § 12182(a) .....................................................................................................................11 42 U.S.C. § 12182(b)(1)(A)...........................................................................................................12 42 U.S.C. § 12182(b)(1)(A)(iii).....................................................................................................12 42 U.S.C. § 12182(b)(2)(A)(ii)-(iv)...............................................................................................12 42 U.S.C. § 12182(b)(2)(A)(iv) .....................................................................................................11 42 U.S.C. § 12182(b)(2)(D)……………………………………………………………………...12 42 U.S.C. § 12183(a) .....................................................................................................................12 42 U.S.C. § 12183(a)(1).................................................................................................................11 42 U.S.C. § 12183(a)(2).................................................................................................................11 42 U.S.C. § 12183(b) .....................................................................................................................12 42 U.S.C. § 12184(c) .....................................................................................................................12 42 U.S.C. § 12186(a)(2).................................................................................................................12 42 U.S.C. § 12186(d)(2) ................................................................................................................12 42 U.S.C. § 2000e-2(a) ..................................................................................................................14 Regulations 28 C.F.R. § 36.402-06....................................................................................................................12 28 C.F.R. Part 36............................................................................................................................12 State Statutes D.C. Code § 2-1401.03 ............................................................................................................11, 14 Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 5 of 27 iv D.C. Code § 2-1402.11(a)..............................................................................................................14 D.C. Code § 2-1402.31(a)..................................................................................................11, 14, 19 D.C. Code § 2-1402.68 ..................................................................................................................11 D.C. Code § 2-1403.16 ..................................................................................................................16 D.C. Mun. Regs. tit. 4 ....................................................................................................................12 D.C. Mun. Regs. tit. 4, § 1002.1 ....................................................................................................13 D.C. Mun. Regs. Tit. 4, § 513.1.....................................................................................................13 D.C. Mun. Regs. Tit. 4, § 513.5.....................................................................................................13 D.C. Mun. Regs. Tit. 4, § 513.11...................................................................................................13 Other Authorities 2A Norman J. Singer, Sutherland’s Statutes and Statutory Construction sec. 46.06 (6th ed. 2000) ...........................................................................................................................14 District of Columbia Office of Human Rights Annual Reports, available at http://ohr.dc.gov/ohr/cwp/view.asp?a=3&q=630570&ohrNav=30953...................................17 Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 6 of 27 I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiffs’ own allegations in the complaint demonstrate that defendant has, time and again, diligently worked to rectify plaintiffs’ concerns about wheelchair accessibility at its small business, the Circa at Dupont restaurant. Indeed, many of plaintiffs’ concerns have already been resolved, and the remaining concerns are expected to be resolved shortly. Nonetheless, plaintiffs seek not only injunctive relief, which is, in large part, already moot, but also compensatory and punitive damages. The Americans with Disabilities Act (“ADA”), however, authorizes only injunctive relief and attorneys’ fees, not compensatory or punitive damages. To accomplish what that Act does not permit, plaintiffs pursue a novel but unsupported theory under the District of Columbia Human Rights Act (“DCHRA”). This Court should reject plaintiffs’ request that it intervene to the extent this is no longer a justiciable controversy, and it should likewise reject plaintiffs’ attempt to circumvent the ADA’s remedial scheme in order to obtain compensatory and punitive damages because plaintiffs’ theory lacks any basis in the actual text of the DCHRA or its implementing regulations. II. BACKGROUND Defendant MHG Café Dupont, LLC, operates the Circa at Dupont restaurant (“Circa”), which opened in the Spring of 2007. See Compl. ¶ 2. Prior to opening the restaurant, defendant made alterations to the site, which formerly housed a different restaurant, Wrapworks. See id. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 7 of 27 2 ¶¶ 2, 24. As part of these alterations, defendant closed the street-level Connecticut Avenue N.W. entrance in favor of an entrance on Q Street N.W. See id. ¶ 25.1 On July 17, 2007, plaintiff Fiedler contacted Stephen Gavula and Matthew Carlin, who serve as officers of defendant. See id. ¶ 27. Fiedler complained about the lack of a wheelchair accessible entrance. See id. The very next day, Carlin informed Fiedler that, in consultation with a patron who used a wheelchair, defendant had ordered and received an interim ramp to provide access to the restaurant. See Email from M. Carlin to M. Fiedler, dated July 18, 2007, attached hereto as Exhibit A; Compl. ¶ 27. The next week, on July 25, Carlin and Fiedler met to discuss Fiedler’s concerns regarding the wheelchair access issue. See Compl. ¶ 27. Discussions with Fiedler continued both in person and by email. On August 9, 2007, defendant emailed Fiedler a detailed proposal involving the interim ramp as well as interior and exterior automatic door openers. See id. ¶ 30. On September 26, 2007, Carlin stated: “We are now focusing on creating a permanent entrance on Connecticut Avenue with an automatic push button. We are meeting with our contractor and millwork company on Tuesday to discuss timing and pricing.” See Email from M. Carlin to M. Fiedler, dated September 26, 2007, attached hereto as Exhibit C; Complaint ¶ 32. Fiedler replied on September 28, stating, among other 1 Defendant accepts the facts asserted in the Complaint as true for the purposes of this motion. See Green v. DOD Dependent Schools-Europe, 514 F. Supp. 2d 79, 81 (D.D.C. 2007). Defendant also properly references the correspondence between the parties, which is a central part of the Complaint. See id. (“The Court may only consider the facts alleged in the complaint, any documents attached to the complaint as exhibits, and matters about which the Court may take judicial notice in addressing a Rule 12(b)(6) motion.”); see also GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”). Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 8 of 27 3 things: “Thank you for updating me on the status of access improvements at Circa. I’m pleased that you’ve decided to make the Connecticut Avenue entrance the accessible one. As you know, that’s what I view as the most sensible solution.” See Email from M. Fiedler to M. Carlin, dated September 28, 2007, attached hereto as Exhibit C; Complaint ¶ 32. But defendant reported to Fiedler that it encountered difficulties with the Connecticut Avenue N.W. project. See Compl. ¶ 33. Carlin noted that, “[u]nfortunately, the process of changing the exterior casing on the Connecticut Avenue side to now add a full service door is turning out to be delayed longer than we originally anticipated.” Email from M. Carlin to M. Fiedler on November 9, 2007, attached hereto as Exhibit D. Carlin went on to note that Circa was planning to obtain an adjoining space and use the entrance that was a part of that space, “subject to permit approval by the City.” Id. Carlin also described Circa’s interim solution: “We continue to put the movable ramp in place when a handicapped person wishes to enter. We have had numerous opportunities to use this ramp to date and as you know we were given this ramp suggestion by a handicapped member of our community. We recognize this does not meet your desires, but it is all we are prepared to offer at this time.” Id. Work is ongoing to implement a permanent solution involving a new door at the Connecticut Avenue entrance to the restaurant; defendant has already had plans drawn up and has had a door made, and is in the process of seeking the necessary approvals for the door. See Declaration of Stephen Gavula (“Gavula Decl.”), dated March 24, 2008, ¶ 9. Defendant has also addressed Fiedler’s other concerns. It removed movable furniture in the restaurant’s restrooms to enable a full wheelchair turning radius. See Compl. ¶ 43. In addition, defendant installed hardware and unlocked the Connecticut Avenue, N.W. entrance, as suggested by Fiedler. See Compl. ¶ 40; Email from M. Fiedler to M. Carlin, dated July 26, 2007, attached hereto as Exhibit A. Interior furniture blocking these doors has been removed. See Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 9 of 27 4 Gavula Decl. ¶ 9. Defendant also changed its hours of service so that wait service is available during all business hours. See id. ¶ 2. Further, defendant has provided a wheelchair accessible table, seating six patrons, in the interior of the restaurant as well as a wheelchair accessible table, seating two people, in the exterior seating space of the restaurant. See id. ¶¶ 4-5. Finally, defendant is in the process of obtaining an accessible counter and gate access to the exterior seating area. See id. ¶¶ 6-7. Plaintiffs filed their complaint on February 11, 2008. Count I alleges violations of the ADA, which authorizes injunctive relief and attorney’s fees. As discussed in Section III.A below, many of the substantive allegations are moot inasmuch as they have already been remedied, and the remainder will be moot soon because they are in the process of being remedied; accordingly, no injunctive relief is necessary. Count II relies on the same factual assertions to allege violations of the DCHRA as a means of seeking compensatory and punitive damages, which are not authorized by the ADA. It should be dismissed not only for mootness, see Section III.A below, but also for failure to state a cognizable cause of action under the DCHRA. See Section III.B below. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 10 of 27 5 III. ARGUMENT A. THREE OF PLAINTIFFS’ SIX CLAIMS ARE NOW MOOT DUE TO DEFENDANT’S VOLUNTARY REMEDIATION EFFORTS. Plaintiffs’ complaint alleges six separate violations of the ADA: 1. “[A] lack of accessible tables that wheelchair users could access or utilize” (Compl. ¶ 35(a)): Accessible tables have now been installed. See Gavula Decl. ¶¶ 4-5.2 2. “[A] service and ordering counter that exceeded the maximum height allowance” (Compl. ¶ 35(b)): A contractor has been hired to remove the bakery case at Circa and install a new counter. Part of the new counter will include a retractable shelf that is designed to be at least 36 inches wide and approximately 36 inches off the ground. The new bar is currently scheduled to be installed on April 3, 2008. See Gavula Decl. ¶ 7. 3. “[R]estrooms in which the requisite wheelchair turning space had been obstructed by the placement of furniture” (Compl. ¶ 35(c)): As acknowledged in the Complaint, the allegedly obstructing furniture has been moved. See Compl. ¶ 43; Gavula Decl. ¶ 3. 2 The Court is entitled to review evidence such as the Gavula Decl. in evaluating this motion under Rule 12(b)(1). See Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93, 99 n.6 (D.D.C. 2007). Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 11 of 27 6 4. “[A]n outdoor eating area that was inaccessible to wheelchair users due to a step at its entrance from the restaurant . . . and a narrow gate that prevented access at its entrance from Q Street” (Compl. ¶ 35(d)): The narrow gate has been removed and there is now a space in the railing for a new, wider gate. The new, wider gate is expected to be installed by mid- April. See Gavula Decl. ¶ 6. 5. “[D]uring breakfast hours, there was no wait service, and orders had to be placed, paid for, and received by customers at the inaccessible service and ordering counter” (Compl. ¶ 36): Wait service is now available during all hours in which the restaurant is open. See Gavula Decl. ¶ 2. 6. “[N]o accessible entrance to Circa at Dupont” (Compl. ¶ 35): The current Connecticut Avenue entrance, which consists of two French doors, has had handles installed and those doors are open during all business hours. See Gavula Decl. ¶ 9. In addition, plans have been drawn up for a permanent door at the Connecticut Avenue entrance. Id. That door has already been built and Circa is in the process of applying for the necessary permits to have that door installed. Id. Under Rule 12(b)(1), the Court must dismiss that portion of the case that relies on paragraphs 35(a), 35(c) and 36 of the Complaint (set forth at 1, 3 and 5 above) because there is no justiciable case or controversy—those claims are moot. The doctrine of mootness limits the subject matter jurisdiction of the court “when ‘events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 12 of 27 7 them in the future.’” Sharp, 496 F. Supp. 2d at 97-98 (citing Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002)). In particular, plaintiffs seek injunctive relief under the ADA for alleged violations that have already been remedied. “Because under the ADA only injunctive relief may be granted to a private party . . . once a plaintiff has received everything the court would order, the federal claims are moot. Thus, generally, a defendant’s successful remedial efforts will render a plaintiff’s ADA suit subject to dismissal as moot.” Eiden v. Home Depot USA, Inc., No. Civ. S-04-977, 2006 U.S. Dist. LEXIS 38423, *31 (E.D. Cal. May 26, 2006) (citation omitted); Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 698, 771 (D. Or. 1997) (“If plaintiffs already have received everything to which they would be entitled, i.e., the challenged conditions have been remedied, then these particular claims are moot absent any basis for concluding that these plaintiffs will again be subjected to the same alleged wrongful conduct by this defendant.” (citations omitted)).3 When a defendant has addressed the plaintiff’s claims through voluntary action, it must show that violations cannot be reasonably expected to return, and that the effects of the alleged violations have been “completely and irrevocably eradicated.” See Sharp, 496 F. Supp. 2d at 99 (citation and quotation omitted). Accessible tables have been installed, furniture has been moved, and the restaurant’s hours of operation have been altered so that wait service is available 3 See also Sharp, 496 F. Supp. 2d at 98 (“Where only injunctive or declaratory relief is requested, and events have so transpired that the controversy has ended and there is no remedy for the court to impose, a controversy is moot unless one of the exceptions to mootness applies.”). Here, plaintiffs also seek compensatory and punitive damages as well as their costs and attorneys’ fees. See Compl. at 16-17 (“Prayer for Relief”). As discussed in Section III.B.1 below, however, compensatory and punitive damages are unavailable here. Moreover, attorneys’ fees are unavailable in cases like this one where judicial intervention is not required to achieve compliance. See Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health and Human Res., 532 U.S. 598, 605, 610 (2001); Sharp, 496 F. Supp. 2d at 100. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 13 of 27 8 at all times when the restaurant is open for business. See Gavula Decl. ¶¶ 2-5. These substantial changes to the restaurant make it unreasonable to expect that the alleged violations will return. They also cure the effects purportedly caused by the alleged former conditions. Therefore, dismissal on mootness grounds is required. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 190 (2000) (holding that a claim for injunctive relief is moot if “it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur”); Sharp, 496 F. Supp. 2d at 99 (“The alleged discrimination cannot reasonably be expected to recur because ‘structural modifications . . . are unlikely to be altered in the future.’” (citations omitted)). In considering the effect of a defendant’s voluntary remedial actions, courts have determined mootness on a barrier-by-barrier basis. See, e.g., Eiden, 2006 U.S. Dist. LEXIS 38423, at *31-32 (dismissing ADA claims for five of thirteen barriers alleged in the complaint); Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134, 1145-48 (S.D. Cal. 2006) (considering mootness of each alleged barrier separately and noting that “because the evidence before the Court shows Defendant has remedied the violation in accordance with [plaintiffs’ expert’s] recommendation, the issue is moot” (citations omitted)). Accordingly, it is appropriate here to dismiss immediately as moot those claims founded on alleged defects that have already been remedied and are, therefore, not subject to judicial resolution.4 4 Defendant expects remedial action on the remaining alleged violations to be completed shortly, see Gavula Decl. ¶¶ 6-9, and anticipates seeking dismissal or summary judgment of those remaining claims at that time. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 14 of 27 9 B. PLAINTIFFS’ DCHRA CLAIMS SHOULD BE DISMISSED BECAUSE THE ALLEGATIONS OF ADA VIOLATIONS ARE NOT SUFFICIENT PREDICATES FOR THE DCHRA CLAIMS. Plaintiffs seek to avoid the mootness of their claims by adding a second count to the Complaint based on the District of Columbia Human Rights Act. See, e.g., Compl. at 16 (First Prayer For Relief: “Declare Defendant’s restaurant in violation of the ADA and DCHRA to the extent that it does not comply with the ADA and its implementing regulations and standards[.]”). Plaintiffs assert that the same six alleged defects that purportedly violate the ADA also constitute violations of the DCHRA. See id. ¶¶ 35-37, 69-79. This Court should reject plaintiffs’ attempt to end-run the ADA remedial scheme, however, because plaintiffs fail to state a claim upon which relief can be granted under the DCHRA. In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must determine whether the plaintiffs have pleaded “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). Such a pleading must “nudge[] [plaintiffs’] claims across the line from conceivable to plausible.” Id. In making its determination, the Court may properly consider “facts alleged in the complaint, any documents attached to the complaint as exhibits, and matters about which [it] may take judicial notice in addressing a Rule 12(b)(6) motion.” Green, 514 F. Supp. 2d at 81. Appropriate documents include central items that the plaintiffs referred to in the Complaint. See GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). Absent a showing of plausibility by the plaintiffs, the Court must dismiss the Complaint. See Twombly, 127 S. Ct. at 1974. Here, the allegations of the Complaint fail to cross this threshold with respect to the DCHRA. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 15 of 27 10 1. THE DCHRA DOES NOT REQUIRE THE SAME AFFIRMATIVE STEPS AS THE ADA. The DCHRA “is different from the federal statutes in . . . significant ways.” East v. Graphic Arts Indus. Joint Pension Trust, 718 A.2d 153, 159 (D.C. 1998). A comparison of Title III of the ADA to the public accommodations provision of the DCHRA leads to the inescapable conclusion that these two statutes are not comparable. While the ADA public accommodation provisions require specific affirmative acts to ensure accessibility for disabled individuals, the DCHRA public accommodation provisions are more akin to the traditional anti-discrimination statutes, which prohibit acts of discrimination but do not require additional measures above and beyond equal treatment without regard to the protected characteristic. As a result, bare allegations of Title III ADA violations cannot state a claim for relief under the DCHRA. The DCHRA and Title III of the ADA adopt significantly different regimes with respect to disability discrimination in public accommodations. The DCHRA provision states only that: It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, or place of residence or business of any individual: (1) To deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations[.] Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 16 of 27 11 D.C. Code § 2-1402.31(a) (emphasis added).5 The DCHRA contains no additional explanation of this provision, and the District of Columbia has not promulgated any regulations setting forth any additional requirements. Thus, to establish a violation of this provision, plaintiffs would have to show that defendant, wholly or partially for a discriminatory reason based on plaintiffs’ disability, denied plaintiffs the full and equal enjoyment of its restaurant. As set forth below, the pleadings fail to establish that such claims are plausible, and they are therefore subject to dismissal under Twombley. In contrast to the DCHRA, Title III of the ADA contains not only a non-discrimination provision, see 42 U.S.C. § 12182(a), but also specific affirmative requirements for providing accommodations to the disabled in public facilities. Title III of the ADA requires the removal of architectural barriers and structural communications barriers when such removal would be “readily achievable.” Id. § 12182(b)(2)(A)(iv). In addition to the existing facilities standard, the ADA also contains a different, detailed standard for new construction, requiring such facilities to be “readily accessible” except when “structurally impracticable.” Id. § 12183(a)(1). The ADA sets yet another standard for facilities that have undergone alteration, requiring alterations to be “readily accessible to” disabled individuals, “including individuals who use wheelchairs.” Id. § 12183(a)(2). Alterations must be accessible “to the maximum extent feasible.” Id. The DCHRA includes none of these additional, affirmative obligations. 5 The DCHRA also states that “[a]ny practice which has the effect or consequence of violating any of the provisions of [the DCHRA] shall be deemed to be an unlawful discriminatory practice.” D.C. Code § 2-1402.68. The DCHRA excludes from this prohibition practices with such an effect when they are “not intentionally devised . . . and can be justified by business necessity.” D.C. Code § 2-1401.03(a). These clauses incorporate the familiar concept of disparate impact discrimination. See Smith v. City of Jackson, 544 U.S. 228, 233 (2005). Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 17 of 27 12 The ADA also specifies that public accommodations cannot offer disabled individuals accommodations that are “different or separate from that provided to other individuals” unless separate accommodations are necessary and “as effective” as that provided to other patrons. 42 U.S.C. § 12182(b)(1)(A)(iii). Title III also contains provisions specifically related to elevators, 42 U.S.C. § 12183(b), over-the-road buses, id. §§ 12182(b)(2)(D) and 12186(a)(2), historical or antiquated cars, id. § 12184(c), and rail cars, id. § 12186(d)(2). These provisions, or provisions of a similar nature, cannot be found in the DCHRA. The ADA’s affirmative obligations with respect to public accommodations are enumerated in even more detail in its comprehensive regulatory scheme, found at 28 C.F.R. Part 36 & Appendix A. The ADA’s public accommodations regulations include no fewer than five sections on alterations alone. See 28 C.F.R. §§ 36.402-06. The comprehensive ADA scheme further includes the Standards for Accessible Design, which contains intricate rules on matters ranging from the required number of accessible telephones to the slope of wheelchair ramps to the maximum force needed to open doors. See 28 C.F.R. Part 36 at Appendix A. Defendant has been unable to locate any discernable public accommodations regulations for the DCHRA public accommodations provisions, let alone a regulatory regime with the heft and complexity of Title III’s scheme. See D.C. Mun. Regs. tit. 4. In sum, the respective DCHRA and ADA public accommodations provisions stand in sharp relief. The ADA provides a detailed scheme for the identification of discrimination depending on the age of the building or the time of alteration, the provision of different or separate goods, services, and accommodations, and an exception for the modification of policies, practices, and procedures when they would “fundamentally alter” the nature of the goods or accommodations. 42 U.S.C. §§ 12182(b)(1)(A), 12182(b)(2)(A)(ii)-(iv), 12183(a). The Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 18 of 27 13 DCHRA’s general provision addresses none of these issues. The ADA goes beyond statutory language to provide a comprehensive regulatory regime related to public accommodations. But the DCHRA public accommodations provisions are not supported by any regulations, despite the District of Columbia’s action to provide demanding regulations in other DCHRA contexts, as discussed below. In light of these considerable differences, these statutes cannot be considered “comparable.” Thus, plaintiffs should be bound to the plain text of the DCHRA without reference to incomparable standards borrowed from the ADA. The conclusion that the DCHRA does not require the same kind of affirmative measures in public accommodations as the ADA is underscored by a comparison of the public accommodations provisions of the DCHRA with the DCHRA’s sections addressing real estate and employment. In these latter two areas, the DCHRA not only prohibits discrimination but also requires affirmative measures to assist disabled individuals. The DCHRA real estate regulations, for example, require landlords to permit reasonable modifications by disabled tenants. See D.C. Mun. Regs. tit. 4, § 1002.1. Similarly, the DCHRA employment regulations adopt a regulatory scheme that specifies affirmative actions that employers must take to accommodate disabled employees and expressly incorporates related federal regulations. See id. §§ 513.1, 513.5, 513.11. This sophisticated regulatory scheme indicates that, when the District of Columbia desired to support the DCHRA with detailed regulations that require affirmative action and incorporate federal law, it did so. It pointedly did not do so in the public accommodations context. This distinction between the real estate and employment portions of the DCHRA and its regulations, on the one hand, and the public accommodations provisions, on the other, leads to the conclusion that similar affirmative obligations were expressly excluded from the public accommodations provisions. See Am. Fed. of Labor & Cong. of Indus. Orgs. v. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 19 of 27 14 Fed. Election Comm’n, 333 F.3d 168, 181 (D.C. Cir. 2003) (Henderson, J., concurring) (citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (“[W]hen Congress includes particular language in one section of a statute but omits it in another section . . ., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quotations omitted)); Russello v. United States, 464 U.S. 16, 23 (1983) (“We refrain from concluding . . . that the differing language in the two subsections has the same meaning in each.”); 2A Norman J. Singer, Sutherland’s Statutes and Statutory Construction sec. 46.06, at 194 (6th ed. 2000) ("When the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.")).6 The analysis of these employment provisions indicates that, when the D.C. Council wanted to track federal civil rights schemes, it knew how to adopt the relevant detailed and 6 The DCHRA and Title I of the ADA contain comparable provisions related to employment discrimination on the basis of disability. Both statutes contain detailed prohibitions concerning discriminatory hiring, advancement, discharge, compensation, and training of employees on the basis of disability. Compare 42 U.S.C. § 12112(a)-(b) with D.C. Code § 2-1402.11(a). Furthermore, the DCHRA’s “business necessity” and “bona fide occupational requirement” exceptions closely mirror the exceptions for “business necessity” and “job-related” tests and standards in Title I of the ADA. Compare 42 U.S.C. § 12113(a) with D.C. Code § 2-1401.03(a), (e). These detailed employment provisions of the DCHRA are comparable to provisions in Title I of the ADA, and they further highlight the difference of substance, detail, and depth between the District of Columbia and federal public accommodations provisions. In addition, compared with the dearth of authority on public accommodations, District of Columbia courts have often applied the comparable and persuasive federal precedent when analyzing employment discrimination claims under the DCHRA. See, e.g., Grant v. May Dep’t Stores Co., 786 A.2d 580, 583-84 (D.C. 2001) (citing cases). Because the statutory language is similar, compare 42 U.S.C. § 2000e-2(a)-(d) with D.C. Code § 2- 1402.11(a), courts have found aspects of the federal and District of Columbia provisions comparable. See Arthur Young & Co. v. Sutherland, 631 A.2d 354, 361 n.17 (D.C. 1993). But the close tracking of the employment provisions further highlights the disparity between the public accommodations provisions in Title III of the ADA and § 2- 1402.31(a) of the DCHRA. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 20 of 27 15 specific language of the applicable federal statute. The failure of the DCHRA to provide a similar statutory scheme to Title III of the ADA shows that the Court should not look to the ADA for determination of a violation in the public accommodations context. This reading of the public accommodation provision of the DCHRA comports with the statute’s construction as a whole, reflecting provisions that were excluded as well as included. See Cook v. Edgewood Mgmt. Corp., 825 A.2d 939, 946 (D.C. 2003) (“‘Statutory interpretation is a holistic endeavor, and, at a minimum, must account for a statute’s full text, language as well as punctuation, structure, and subject matter.’”) (citation omitted); Rome v. Lowenthal, 428 A.2d 75, 79 (Md. 1981) (“In construing the statute here in question we are obliged . . . to ascertain and carry out the real legislative intent; to consider the language of the enactment in its natural and ordinary signification; to not insert or omit words to make a statute express an intention not evidenced in its original form; and, if reasonably possible, absent a clear indication to the contrary, to read the statute so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory.”). Although this Court has briefly considered this issue once before, that case is inapposite. In Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Eng’rs, P.C., 950 F. Supp. 393, 405 (D.D.C. 1996), the Court summarily concluded, after a few sentences, that the DCHRA “is applied in the same manner as the parallel federal antidiscrimination provisions” of the ADA. The Court reached this conclusion, however, without a comparison of the respective public accommodations provisions of the DCHRA and the ADA. See id. In fact, defendant has not found a single case analyzing whether the respective public accommodation provisions in the DCHRA and the ADA should be considered “comparable.” Furthermore, the primary authority cited in Paralyzed Veterans involved an employment discrimination claim rather than a public Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 21 of 27 16 accommodations claim. See Whitbeck v. Vital Signs, Inc., 934 F. Supp. 9, 13 (D.D.C. 1996). As noted above, the employment discrimination provisions of the DCHRA and federal law are generally comparable. Moreover, the relief requested in Paralyzed Veterans also gave the Court no reason to consider closely the various distinctions between the DCHRA and Title III of the ADA. The plaintiff in Paralyzed Veterans sought only injunctive relief. See Paralyzed Veterans, 950 F. Supp. at 405-06. Therefore, the application of the DCHRA was superfluous because a violation of the ADA provided the plaintiff with all the relief it required. In this case, however, plaintiffs seek injunctive relief for their ADA claim, coupled with compensatory and punitive damages in their DCHRA claim. See Compl. ¶¶ 68, 79. The only way for plaintiffs to obtain compensatory or punitive damages is to state a claim under the DCHRA, which allows for both remedies. D.C. Code § 2-1403.16. The analysis above demonstrates that the DCHRA and Title III of the ADA cannot be considered comparable. Only “comparable” federal civil rights precedent is “persuasive” in construing sections of the DCHRA. Chang v. Inst. for Public-Private P’ships, Inc., 846 A.2d 318, 324 (D.C. 2004); Grant, 786 A.2d at 583-84. Federal civil rights precedent should not be adopted in DCHRA cases “indiscriminately.” Mitchell v. Nat’l R.R. Passenger Corp., 407 F. Supp. 2d 213, 240 (D.D.C. 2005). Therefore, the determination that ADA standards dictate the outcome of the DCHRA claims in Paralyzed Veterans should not be considered controlling in this case.7 7 Indeed, the DCHRA public accommodations provision is accompanied by a distinct lack of published precedent. In an attempt to locate relevant decisions, counsel for defendant even met with examiners at the District of Columbia Human Rights Commission. However, they were unable to produce a single reported decision involving discrimination in public accommodations on the basis of disability. The Commission’s [Footnote continued on next page] Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 22 of 27 17 Because the District of Columbia and federal statutes are not comparable, plaintiffs may not rely on the definition of discrimination from the ADA public accommodations provisions and the associated regulatory scheme and precedent. Therefore, plaintiffs cannot merely point to their ADA allegations to establish sufficient predicates for their DCHRA claims. 2. PLAINTIFFS FAIL TO STATE A CLAIM FOR UNLAWFUL DISCRIMINATION UNDER THE DCHRA. To support their claims for compensatory and punitive damages under the DCHRA, plaintiffs must rely on the definition of unlawful discrimination from the DCHRA without reference to the ADA or its regulations. Based on the plain statutory language of the DCHRA, plaintiffs must plead enough facts to show the plausibility of (1) a denial of the full and equal enjoyment of a place of public accommodation that was (2) done wholly or partially for a discriminatory reason based on actual or perceived disability. See D.C. Code § 2-1402.31(a). In this case, plaintiffs have not pleaded and they cannot prove the presence of either element. The current accessibility solutions indicate that defendant is not “deny[ing], directly or indirectly, any person the full and equal enjoyment” of the restaurant. D.C. Code § 2- 1402.31(a)(1). The Complaint is replete with defendant’s efforts to respond to the concerns expressed by patrons using wheelchairs. As the Complaint admits, upon learning of an accessibility issue at the entrance, defendant immediately obtained a portable ramp that has been used by disabled patrons. See Compl. ¶ 27. In addition, defendant has made additional efforts to implement a more permanent solution to the entrance issue and has made a number of additional [Footnote continued from previous page] available published Annual Reports for the years 2004 and 2006 similarly indicate no reported decisions in this context. See District of Columbia Office of Human Rights Annual Reports, available at http://ohr.dc.gov/ohr/cwp/view.asp?a=3&q=630570&ohrNav=30953 (last visited March 24, 2008). To the best of defendant’s knowledge, the Commission has not published Annual Reports for other years on its website. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 23 of 27 18 changes to the restaurant. See id. ¶¶ 28-30, 43. It simply cannot be the case that a denial of the full and equal enjoyment occurs when a number of disabled individuals have used the accommodations provided and have indeed gained access to the restaurant. Nowhere do plaintiffs allege in their DCHRA claim that wheelchair-bound individuals, as a group, have been denied access, only that Fiedler found the portable ramp solution unacceptable. According to the Complaint, Fiedler’s objections to the portable ramp were based solely on its alleged deficiencies vis-à-vis ADA standards. See Compl. ¶¶ 30, 34. As explained in Part III.B.1, however, a violation of Title III of the ADA does not state a claim under the DCHRA. Defendant has also made other changes including offering full wait service during all business hours, accessible restrooms, and accessible tables. See Gavula Decl. ¶¶ 2-5. Defendant has made significant efforts to provide patrons in wheelchairs with the restaurant’s full services. The presence of discriminatory intent is also fatally undercut, for three reasons. First, as set forth in the Complaint, defendant has repeatedly sought to accommodate Fiedler and other patrons using wheelchairs. See Compl. ¶¶ 28, 33, 40, 43. Defendant’s good faith can be seen in its ongoing communications with Fiedler as it sought to reach a solution that would be acceptable to him. Defendant continued to make efforts to provide a long-term solution to plaintiff’s accessibility concerns while making available the portable ramp that a number of other disabled patrons had used to obtain access to the restaurant. See Exh. D (November 9 Email). Overall good faith can be seen in the modifications that have already occurred, including the provision of accessible restrooms, which plaintiffs acknowledge. See Compl. ¶ 43. As noted above, defendant has also provided full wait service during all business hours and installed accessible tables in both interior and exterior seating areas. See Gavula Decl. ¶¶ 2-5. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 24 of 27 19 Defendant’s response, as well as the effort and expenditures associated therewith, render any inference of discriminatory intent implausible. Second, as set forth in the Complaint and attached documents, defendant has provided a temporary solution to the wheelchair accessibility issue in the form of an interim ramp that can be installed upon request. See Compl. ¶¶ 28, 30, 33. This ramp was recommended by another disabled patron, see Exh. A (July 18 email). This effort to provide access seriously undercuts the plausibility of any inference of discriminatory motivation. To the contrary, it indicates that, once alerted of a concern, defendant acted to provide wheelchair access as soon as reasonably possible. Defendant’s actions involving the interim ramp also show its good faith attempt to provide an accessible restaurant for the enjoyment of all patrons. Third, plaintiffs have not even alleged any “discriminatory reason.” Instead, plaintiffs rely on the inapplicable ADA standard. This is insufficient. The Court should dismiss plaintiffs’ DCHRA claims because plaintiffs have failed to plead facts to support a plausible claim that defendant denied disabled patrons full and equal enjoyment of its restaurant with a discriminatory reason pursuant to D.C. Code § 2-1402.31(a). CONCLUSION This case does not involve invidious discrimination based on disability. It does not involve a willful or malicious actor. What this case does involve is a restaurateur who took action to rectify a customer’s complaints about wheelchair accessibility. This restaurateur continues to transform its operations through a combination of permanent and interim measures to serve all customers. In addition, this restaurateur continues to work toward permanent accessibility solutions at considerable effort and expense. Put simply, this case does not allege the type of conduct that the DCHRA was designed to remedy. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 25 of 27 Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 26 of 27 Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 27 of 27 Case 1:08-cv-00225-PLF Document 9-2 Filed 03/24/2008 Page 1 of 4 Case 1:08-cv-00225-PLF Document 9-2 Filed 03/24/2008 Page 2 of 4 Case 1:08-cv-00225-PLF Document 9-2 Filed 03/24/2008 Page 3 of 4 Case 1:08-cv-00225-PLF Document 9-2 Filed 03/24/2008 Page 4 of 4 Case 1:08-cv-00225-PLF Document 9-3 Filed 03/24/2008 Page 1 of 3 Case 1:08-cv-00225-PLF Document 9-3 Filed 03/24/2008 Page 2 of 3 Case 1:08-cv-00225-PLF Document 9-3 Filed 03/24/2008 Page 3 of 3 Case 1:08-cv-00225-PLF Document 9-4 Filed 03/24/2008 Page 1 of 2 Case 1:08-cv-00225-PLF Document 9-4 Filed 03/24/2008 Page 2 of 2 Case 1:08-cv-00225-PLF Document 9-5 Filed 03/24/2008 Page 1 of 2 Case 1:08-cv-00225-PLF Document 9-5 Filed 03/24/2008 Page 2 of 2 Case 1:08-cv-00225-PLF Document 9-6 Filed 03/24/2008 Page 1 of 7 Case 1:08-cv-00225-PLF Document 9-6 Filed 03/24/2008 Page 2 of 7 Case 1:08-cv-00225-PLF Document 9-6 Filed 03/24/2008 Page 3 of 7 Case 1:08-cv-00225-PLF Document 9-6 Filed 03/24/2008 Page 4 of 7 Case 1:08-cv-00225-PLF Document 9-6 Filed 03/24/2008 Page 5 of 7 Case 1:08-cv-00225-PLF Document 9-6 Filed 03/24/2008 Page 6 of 7 Case 1:08-cv-00225-PLF Document 9-6 Filed 03/24/2008 Page 7 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Marc Fiedler, et al., Plaintiffs, v. Civil Action No. 1:08CV00225 (PLF) MHG Café Dupont, LLC, Defendant. [PROPOSED] ORDER 1. Defendant MHG Café Dupont, LLC’s Partial Motion to Dismiss Plaintiffs’ Complaint or to Strike Certain Allegations is GRANTED. 2. It is hereby ORDERED that Plaintiffs’ Americans with Disabilities Act claims based on the allegations in paragraphs 35(a) and (c) and 36 of the Complaint are dismissed as moot pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. 3. It is hereby further ORDERED that Count II (the “Second Claim for Relief”) of the Complaint, which asserts a violation of the District of Columbia Human Rights Act, is dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dated: ___________________________________ Paul L. Friedman, U.S. District Judge Case 1:08-cv-00225-PLF Document 9-7 Filed 03/24/2008 Page 1 of 1