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Hernandez v. Autozone, Inc.

United States District Court, E.D. New York

February 27, 2018

KENNETH HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff,
AUTOZONE, INC., Defendant.

          Appearances For the Plaintiffs: EDWIN J. KILPELA, JR. KEVIN ABRAMOWICZ STEPHANIE K. GOLDIN Carlson Lynch Sweet Kilpela & Carpenter, LLP

          For the Defendants: CHRISTOPHER F. WONG DAVID RAIZMAN EVAN BENJAMIN CITRON Ogletree Deakins Nash Smoak & Stewart, P.C.

          JOHN DOMENICK ZAREMBA Zaremba Brownell & Brown PLLC


          FREDERIC BLOCK Senior United States District Judge

         Kenneth Hernandez brings a putative class action against AutoZone, Inc. (“AutoZone”) for violations of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182, and its implementing regulations. He claims primarily that AutoZone's centralized maintenance policies are inadequate to detect and remedy accessibility barriers in its parking lots and walkways, and he seeks declaratory and injunctive relief. Hernandez now moves for class certification under Federal Rule of Civil Procedure 23(b)(2), and AutoZone opposes the motion. For the reasons discussed below, the motion for class certification is granted.


         “A district judge is to assess all of the relevant evidence admitted at the class certification stage[.]” In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 42 (2d Cir. 2006) (hereinafter In re IPO). “The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has been met.” Amara v. CIGNA Corp., 775 F.3d 510, 519 (2d Cir. 2014) (quoting Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010)). The Court must “receive enough evidence, by affidavits, documents, or testimony” to be satisfied that each requirement has been met, and it must resolve any relevant factual disputes, even on issues that overlap with the merits of the underlying claim. See In re IPO, 471 F.3d at 41.[1]

         A. Named Plaintiff

         Hernandez, a U.S. military veteran and former police officer, has relied on a wheelchair for mobility since a 2014 car accident left him paralyzed from the waist down. See Pl.'s Mem. in Support of Class Certification, Ex. E (Hernandez Dep.) at 13:25-14:18, 21:6-24:10, 29:14-31:20. Both before and after his accident, Hernandez was a repeat visitor to an AutoZone store in Brooklyn. Id. at 63.

         The first time he visited the store after his accident, he faced several mobility challenges. There was no accessible parking space wide enough for him to unload his wheelchair from the van in which he rode, so he had to unload in the middle of the parking lot. Id. at 75:18-82:11. After he unloaded his wheelchair, the parking lot and the sidewalk were too steeply sloped for him to propel his wheelchair up them. Id. at 82:12-83:24. He therefore required the assistance of his fiancé, who had driven the van that day. Id. at 83:16-24, 77:15-17. When he reached the entrance, he was unable to get through because it was too narrow and the door did not open automatically. Id. 84:25-87:25. Hernandez returned to the store on a later occasion and faced similar difficulties. Id. at 101:17-106:6. He plans to return to the Brooklyn AutoZone in the future despite these difficulties because it is his “local auto parts store.” Id. at 116:1-8, 93:7-10. Hernandez also plans to purchase a car in the future, but he does not own one now. Id. at 48:22-49:9.

         B. ADA Violations

         Hernandez alleged in his Complaint that his counsel's investigators identified multiple violations of the ADA at AutoZone locations, including parking lots and sidewalks with slopes steeper than permitted by the Department of Justice's ADA Accessibility Guidelines (“ADAAG”), a lack of parking spaces designated as van accessible, and purportedly accessible parking spaces with aisles that were narrower than the required 60 inches. In addition to the Brooklyn location visited by Hernandez, the investigators allegedly identified fifteen AutoZone locations in three states with similar ADA compliance deficiencies. See Compl. ¶¶ 23(a)-(o).[2]

         C. AutoZone Policies and Practices

         Hernandez submitted the deposition testimony of AutoZone Architect George Callow. According to Callow, the following policies and practices apply to AutoZone stores across the nation. AutoZone representatives oversee each stage of the construction process to ensure that parking lots and sidewalks are ADA compliant. Pl.'s Mem. Ex. B (Callow Dep.) at 27:17-29:10, 30:19-22, 34:17-35:17. When construction is complete, general contractors certify that the site matches the original ADA-compliant construction plans. Id. at 37:15-38:10. However, after construction, various environmental factors such as weather and earthquakes can change the slope of the parking lots and sidewalks. Id. at 63:4-64:3, 65:20-22. Nonetheless, AutoZone construction personnel do not measure the slope of parking lots or sidewalks after they have been built. Id. at 38:11-15.

         Hernandez also submitted the deposition testimony of David Cooper, AutoZone Senior Maintenance Operations Manager. According to his testimony, post-construction changes in store property are monitored by AutoZone maintenance technicians, who visit each store every six weeks. Id. Ex. C (Cooper Dep.) at 13:4-8, 71:8-14. Using an “E-Zap Worksheet” as a guide, they inspect the property, including the parking lots and sidewalks, for conditions requiring repairs. Id. at 14:8-15, Ex. D (E-Zap Worksheet). Regular inspections of substantially similar scope are conducted by Maintenance Managers, Store Managers, and District and Regional Managers. See Def.'s Callow Decl. ¶¶ 10-12. AutoZone also operates a “Maintenance Resource Center, ” which receives reports from maintenance technicians and from the general public regarding any need for repairs to AutoZone facilities and oversees many of those repairs. Id. ¶ 13. From September 2013 to April 2017, the work of AutoZone maintenance technicians resulted in an average of 9 parking lot replacements per month. Id. ¶ 9.

         The E-Zap Worksheet does not direct maintenance technicians to measure the slope of parking lots or sidewalks. See generally E-Zap Worksheet. If a visual inspection by the maintenance technician reveals sufficient deterioration in parking lots and sidewalks, AutoZone will replace them using the original construction plans, presumably returning the property to full ADA compliance. See Cooper Dep. at 49:4-51:23, 56:8-18. Replacement occurs generally every 15 to 20 years. Id. at 54:22-55:15. However, during the time between original construction and replacement, AutoZone does not measure the slope of its parking lots or sidewalks to ensure ADA compliance. Id. at 31:6-23, 39:11-41:24. Moreover, maintenance technicians are not provided with ADA slope requirements, trained to measure slope gradients, or provided with ...

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