Black Friday’s No Excuse, Pier 1 Shopper Tells 9th

     (CN) – Pier 1 Imports had no feasible reason for letting clutter block a wheelchair from the aisles of one of its stores, a disabled man’s attorney told the 9th Circuit.
     “It’s not always Black Friday at this Pier One. There’s a lot of down time for these employees [to clear the aisles],” Scottlynn Hubbard, of the Disabled Advocacy Group, said Thursday to chuckles in the courtroom.
     Hubbard’s client, Byron Chapman, sued Pier 1 in 2004, saying he could not get around a store in Vacaville, Calif., because of architectural features that acted as barriers to his wheelchair. Later, he amended his complaint to focus on merchandise littering the store’s floor.
     But Pier 1 attorney Minh Vu told the appellate panel the home-decor chain differs from other stores because, in addition to restocking activities that sometimes block the aisles of other retailers, Pier 1’s customers tend to remove merchandise from the packaging to see how it looks.
     Those customers sometimes leave products in the aisles, Vu said. The Americans with Disabilities Act requires stores to provide access to the maximum extent feasible, and “feasible means you have to look at context,” the Seyfarth Shaw attorney added.
     Judge Marsha Berzon told Vu that Pier 1’s accessibility policy did not seem to work very well.
     “Well, your honor, the ADA can’t mandate perfection,” Vu responded, adding that Pier 1 policy requires employees to pick up items from the aisles and reshelf them. Obstacles are thus “in transit,” which the ADA allows, the attorney said.
     Indeed “Mr. Chapman himself said in his declaration on three occasions that he observed employees doing precisely what the policy requires of them,” Vu said, noting this as “evidence that the policy was working and was being implemented.”
     Thursday marked the third time that the 9th Circuit heard the case. In 2011, the en banc court ordered the case dismissed because it found no proof that Chpaman personally suffered discrimination under the ADA, despite showing that barriers existed at the store.
     U.S. District Judge Lawrence Karlton declined, however, to dismiss Chapman’s suit on remand. Instead the now-retired judge allowed Chapman to amend his complaint.
     Chapman presented just two claims in his second amended complaint: that clutter made the store’s aisles unlawfully narrow, and that the customer-service window was also cluttered with merchandise.
     Both parties, trying to avoid a trial, filed for summary judgment.
     Karlton rejected Pier 1’s motion in June 2012, ruling that the company had “relied upon failed arguments that obstructions in its store did not violate the ADA because they were eventually moved after plaintiff encountered them, and because plaintiff himself could have moved them (notwithstanding the risks to his well-being and dignity).”
     “It also relied upon failed factual assertions that its aisles and accessibility counter were not obstructed on dates when its expert witness visited, or the one day its store manager saw Chapman in the store,” the order states.
     Chapman, though, had “established, without dispute, that on numerous occasions, Pier 1’s aisles were blocked and that its accessibility counter was cluttered,” Karlton found.
     Karlton said Chapman “established that he was prevented from using these facilities until the obstructions were eventually cleared away.”
     Vu told the 9th Circuit that this ruling improperly excluded a store manager’s declaration that showed policy and practice make any potential obstacles temporary.
     Calling it a “terminating sanction,” the attorney said that “by excluding this evidence, Judge Karlton just eviscerated Pier 1’s case with regard to the aisles.”
     Judge Berzon said the policies may be relevant to whether the obstructions were transitory, or whether policy required an employee to regularly walk the aisles looking for obstacles.
     Chico, Calif.-based Hubbard said evidence on the store policies cannot help Pier 1 in any case because visits he made to 29 other stores in the area showed that the aisles were blocked in spite of Pier 1’s accessibility policies.

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