United States District Court, E.D. New York
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
the Defendants: CHRISTOPHER F. WONG DAVID RAIZMAN EVAN
BENJAMIN CITRON Ogletree Deakins Nash Smoak & Stewart,
DOMENICK ZAREMBA Zaremba Brownell & Brown PLLC
MEMORANDUM AND ORDER
FREDERIC BLOCK Senior United States District Judge
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
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.
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.
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
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. ¶¶
AutoZone Policies and Practices
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.
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.
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 ...