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Desiree Stan v. Wal-Mart Stores

August 23, 2000

DESIREE STAN, PLAINTIFF,
v.
WAL-MART STORES, INC., WAL-MART STORES EAST, INC., D/B/A WAL-MARTS, SAM'S EAST, INC., D/B/A SAM'S CLUB AND JOHN DOES, DEFENDANTS.



The opinion of the court was delivered by: McAVOY, District Judge.

MEMORANDUM -- DECISION & ORDER

Plaintiff commenced the instant action pursuant to Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et. seq., and NEW YORK CIVIL RIGHTS LAW § 47, claiming that she was discriminated against in the use of a public accommodation on account of her disability. Presently before the Court is Defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of Plaintiff's Complaint in its entirety.

I. BACKGROUND

Because the instant matter is before the Court on Defendants' motion for summary judgment, the following facts are presented in the light most favorable to Plaintiff. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999).

Plaintiff Desiree Stan suffers from an eye disease that has rendered her legally blind. Defendants concede for purposes of this motion that she is disabled within the meaning of the ADA. To assist her in getting around, Plaintiff uses a service dog.

Plaintiff shopped at Wal-Mart Stores ("Wal-Mart") approximately four times per year and at Sam's Club, approximately ten times per year. See July 17, 2000 Stan Dep. at ¶ 3. She alleges that on three occasions (two at Wal-Mart and one at Sam's) she experienced discrimination on account of her disability.

In one instance, in approximately November 1997, Plaintiff entered the East Greenbush, New York Wal-Mart store with her guide dog by her side. A Wal-Mart greeter*fn1 told her she could not bring her pet into the store. Plaintiff informed the greeter that it was a service dog, to which the greeter iterated that dogs were not allowed into the store. Plaintiff pushed past the greeter and entered the store. The greeter did not attempt to follow Plaintiff or further obstruct her from entering the store. Plaintiff approached the service desk and asked to speak with the general manager. Because the general manager was unavailable at the time, a Wal-Mart employee asked if Plaintiff would like to speak with the assistant manager. Plaintiff declined and agreed to wait for the general manager. Plaintiff proceeded to shop until she was paged by the general manager. After Plaintiff explained to the general manager that the greeter "tried to eject me from the store because she wouldn't recognize that my dog was a service animal ... after I told her it was a service animal," the general manager apologized and indicated that she would properly train her employees about such matters. Plaintiff thanked the general manager, made her purchases, and left the store. See Pl. Dep. at 18-20.

Thereafter, Plaintiff shopped at the East Greenbush store one or two times without incident, although she is uncertain whether she had her service dog with her at those times. See id. at 20-21.

In another similar instance, on May 12, 1998, Plaintiff entered a Sam's Club store in Latham, New York. A greeter advised Plaintiff that pets were not allowed in the store. Plaintiff stepped past the greeter and her ex-husband informed the greeter that Plaintiff is blind and the dog was a service animal, not a pet. Plaintiff then proceeded to what she believed to be the service counter and asked for the address and telephone number of Wal-Mart's corporate headquarters. The employee at the counter responded that she did not have that information. Plaintiff then requested to speak with the store's general manager. The employee proceeded to page the manager. At that point, the greeter approached Plaintiff. Plaintiff asked him if he was the general manager, to which he responded that he was not. Believing that Defendants tried to deceive her into believing that the greeter was the general manager, Plaintiff walked away and proceeded to do her shopping. As she was paying for her purchases, Plaintiff remarked to the cashier that she could not believe that the address and telephone number for corporate headquarters were not available. The cashier then informed Plaintiff that she had previously gone to the membership desk rather than the service desk and directed Plaintiff to the service desk. See id. at 22-24.

Plaintiff proceeded to the service desk and asked for the address and telephone number for corporate headquarters. The store's general manager then approached Plaintiff and inquired if there was a problem. Plaintiff explained what had happened. The manager apologized, informed Plaintiff that he would give the matter immediate attention, and stated that he would train all of the associates regarding allowing service dogs into the store and that Plaintiff and her dog would not be excluded again. The manager also gave Plaintiff the address and telephone number for corporate headquarters. See id. at 24-25.

That same day, Plaintiff wrote a letter to corporate headquarters complaining of the treatment she experienced at Wal-Mart and Sam's Club. Plaintiff sought to train Defendants' employees properly and to obtain a promise that she would never again be harassed on account of her entering one of Defendants' stores with a service dog. See id. at 25.

When Plaintiff did not receive a response to her letter, she telephoned corporate headquarters to inquire whether they received the letter. Defendants stated that they could not find a copy of the letter on file. Plaintiff then requested the name and fax number for Wal-Mart's president. On May 24, 1998, Plaintiff again wrote a letter complaining of the treatment she received at the East Greenbush Wal-Mart and the Latham Sam's Club. See id. at 25-26.

In late May 1998, a representative of either Wal-Mart or Sam's Club responded by telephone to Plaintiff's letter. Because Plaintiff was not home at the time of the this telephone call, the representative left a message stating that she had taken care of the problem, that they had trained their associates, and that if Plaintiff had any questions she could feel free to call. Plaintiff returned the telephone call and offered to assist in training employees. The representative declined Plaintiff's offer and stated that she would not again be subjected to such treatment. See id.

Approximately one month later, Plaintiff entered a Sam's Club store. The greeter asked Plaintiff if her dog was a service dog, to which she responded that it was. The greeter then asked Plaintiff whether she could explain to him what a service dog is. Plaintiff proceeded to educate the greeter about what her dog did, the dog's value, and her rights ...


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