Eddie Bauer ADA Case Revived by 9th Circuit

     (CN) – The 9th Circuit revived claims from a disabled man who sued Eddie Bauer within a week of shopping at one of the retailer’s outlet stores in California.
     Chris Kohler’s 2010 complaint against Bauer stemmed his purchase of a shirt from one of its store in Cabazon, Calif.
     Courthouse News records show that just last month, a plaintiff with the same name filed four federal complaints in Los Angeles against various businesses under the Americans with Disabilities Act.
     When Kohler eventually went to trial against Bauer over three alleged obstacles in the store, he took issue with three obstacles that allegedly prevented his use of the store: impermissibly high checkout counters, a too-long bench in the dressing room, and barriers in the store’s aisles.
     After a two-day trial, a federal judge found that Kohler had not proven that any of those alleged barriers violated the ADA or California law.
     With regard to the store aisles, the court considered but did not give much credit to Kohler’s “vague” testimony about the clothes on the floor that he said made it difficult for him to get around.
     The court also rejected Kohler’s claims about the bench, finding that, despite its 60-inch length, it qualified as an “equivalent facilitation” because Kohler was able to make a parallel transfer onto it.
     On both of these points, a three-judge panel for the 9th Circuit affirmed judgment Friday for the retailer.
     The trial court had also rejected Kohler’s about the check-out counter, citing his failure to submit any evidence to support his claim.
     Though Kohler tried to admit photos that he claimed would show the counter was taller than 36 inches, the statutory maximum, he missed the deadline and the photos were excluded.
     Kohler thus offered only his own opinion about the counter’s height, saying he remembered it stood a foot higher than his lap and thus must have been 39 inches high.
     Bauer meanwhile told the court that it met accessibility requirements regardless of the counter’s height because it has a policy of making clipboards available to customers.
     Citing Justice Department guidance that clipboards constitute only a temporary dix for too-high counters, the appellate panel reversed on this issue Friday.
     When assessing the counter’s height on remand the court must weight the credibility of Kohler’s testimony against the other evidence, according to the ruling.
     Strong v. Valdez Fine Food, a decision that the trial court relied on in ruling against Kohler, has since been overturned by the 9th Circuit, the panel said.
     Given the trial court’s reliance on a decision that has been overturned, it must reconsider the sufficiency of Kohler’s testimony, according to the ruling.
     The ruling closes in affirming that Eddie Bauer is not entitled to attorneys’ fees.
     Judge J. Frederick Motz wrote for decision for the panel.

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