Allen v. Ollie's Bargain Outlet, Inc.

• Decision Date: 24 June 2022
• Docket Number: 21-2121
• Citation: 37 F.4th 890
• Parties: Irma ALLEN; Bartley Michael Mullen, Jr., Individually and on behalf of all others similarly situated v. OLLIE'S BARGAIN OUTLET, INC., Appellant
• Court: U.S. Court of Appeals — Third Circuit

37 F.4th 890

Irma ALLEN; Bartley Michael Mullen, Jr., Individually and on behalf of all others similarly situated

v.OLLIE'S BARGAIN OUTLET, INC., Appellant

No. 21-2121

United States Court of Appeals, Third Circuit.

Argued: March 15, 2022

Filed: June 24, 2022

Richard L. Etter [ARGUED], Ogletree Deakins, One PPG Place, Suite 1900, Pittsburgh, PA 15222, David L. Schenberg, Ogletree Deakins, 7700 Bonhomme Avenue, Suite 650, St. Louis, MO 63105, Counsel for Appellant

R. Bruce Carlson, Carlson Brown, 222 Broad Street, Sewickley, PA 15143, Gary F. Lynch, Elizabeth Pollock-Avery, Kelly K. Iverson, Jamisen A. Etzel [ARGUED], Nicholas Colella, Lynch Carpenter, 1133 Penn Avenue, 5th Floor, Pittsburgh, PA 15222, Counsel for Appellees

Before: JORDAN, KRAUSE, and PORTER, Circuit Judges.

OPINION OF THE COURT

PORTER, Circuit Judge.

Irma Allen and Bartley Mullen are disabled and need wheelchairs to move about. Hoping to find "Good Stuff Cheap," they went shopping at two different bargain stores owned by Ollie's Bargain Outlet, Inc. ("Ollie's"). But once inside Ollie's, they encountered an obstacle course: pillars, clothing racks, and boxes blocked their way. Dissatisfied with their shopping experiences, they filed a putative class action against Ollie's under Title III of the Americans with Disabilities Act ("ADA"). They seek permission to sue on behalf of every similarly disabled individual who shops at any Ollie's store in the United States and has or will encounter interior access barriers. The District Court certified the proposed class. We will vacate and remand. The District Court abused its discretion by certifying an overly broad class based on inadequate evidence of numerosity and commonality.

I

A

Ollie's owns and operates over four hundred retail stores across twenty-nine states.¹ Allen and Mullen visited two different Ollie's stores in Monaca and New Castle, Pennsylvania. There, they encountered obstacles blocking their path of travel, including inventory on the floor, clothing racks placed too close together, boxes, pallets, and structural pillars. Pictures taken later at these stores show aisles similarly narrowed by inventory carts, pallets, columns, boxes, or goods on the floor. Suspecting a pattern, Allen and Mullen's lawyers hired investigators to take photographs and measure aisle width at several Ollie's stores in Pennsylvania. After this preliminary investigation, Allen and Mullen sued Ollie's under Title III of the ADA.

B

Title III of the ADA prohibits retailers like Ollie's from discriminating "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" they offer to the public. 42 U.S.C. § 12182(a). This general prohibition has several specific definitions that extend disability discrimination beyond disparate treatment or invidious discrimination. Plaintiffs focus their complaint and argument on three specific definitions of Title III discrimination. We discuss these for background.

First, Title III discrimination includes "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford" goods, services, and the like to "individuals with disabilities." Id. § 12182(b)(2)(A)(ii). "To comply with this command, an individualized inquiry must be made to determine whether a specific modification for a particular person's disability would be reasonable under the circumstances as well as necessary for that person ...." PGA Tour, Inc. v. Martin , 532 U.S. 661, 688, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001).

Second, Title III discrimination includes "a failure to remove architectural barriers ... in existing facilities, ... where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). The Department of Justice gives the term "architectural barriers" a broad scope. For example, shelves, tables, chairs, vending machines, display racks, and furniture are treated as "architectural." 28 C.F.R. § 36.304(b)(3), (4). Architectural barriers must be removed only when "readily achievable," a standard that "means easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9).

Third, facilities built or altered after the ADA's effective dates must be "readily accessible to and usable by" the disabled. 42 U.S.C. § 12183(a) ; 28 C.F.R. §§ 36.401(a)(1), 402(a)(1). To be readily accessible, a facility must comply with the standards for accessible design. 28 C.F.R. § 36.406. Under section 403.5.1 of the most recent 2010 standards, aisles must generally be at least thirty-six inches wide, but can measure as little as thirty-two inches wide for short distances. 36 C.F.R. pt. 1191, app. D. Department of Justice rules require facilities to maintain accessible aisles "in operable working condition." 28 C.F.R. § 36.211(a).

Plaintiffs' "core contention" is that "Ollie's deliberately directs the placement of merchandise within aisles," causing a corporate-wide failure to maintain accessible aisles. Appellees' Br. 28. Under plaintiffs' theory, retail stores fail to maintain accessible aisles "in operable working condition" if they intentionally and recurringly block them with movable objects, a position supported by Ninth Circuit precedent. See Chapman v. Pier 1 Imports (U.S.) Inc. , 779 F.3d 1001, 1009 (9th Cir. 2015) (retail store violated ADA when it had a pattern of obstructing aisles with objects like "step ladders"). Plaintiffs claim that Ollie's failure to modify its corporate policies to prevent this alleged merchandising practice is discriminatory, and they also suggest that some or all merchandising goods count as "architectural" barriers that must be removed.

C

After completing targeted discovery, plaintiffs moved to certify the following class under Federal Rule of Civil Procedure 23(b)(2) :

All persons with qualified mobility disabilities who have attempted, or will attempt, to access the interior of any store owned or operated by [Ollie's] within the United States and have, or will have, experienced access barriers in interior paths of travel.

App. 171. Before proceeding as a class under Rule 23(b)(2), plaintiffs had to satisfy Federal Rule of Civil Procedure 23(a). Under Rule 23(a), they had to "demonstrate, first, that ‘(1) the class is so numerous that joinder of all members is impracticable; ‘(2) there are questions of law or fact common to the class; ‘(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and ‘(4) the representative parties will fairly and adequately protect the interests of the class.’ " Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 345, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (quoting Fed. R. Civ. P. 23(a) ). To satisfy Rule 23(b)(2), plaintiffs then had to show that Ollie's "has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Id. at 345–46, 131 S.Ct. 2541 (quoting Fed. R. Civ. P. 23(b)(2) ).

Before the District Court, Plaintiffs argued that joinder of class members was impracticable given the size of the class. They introduced three strands of evidence to support this assertion. First, data from the U.S Census Bureau's 2018 American Community Survey, estimating the number of people with ambulatory disabilities—meaning serious difficulty walking or climbing stairs—for each zip code with an Ollie's store. Second, twelve emails received by Ollie's customer service over three years from or on behalf of patrons that use wheelchairs or have a mobility disability. Third, a declaration stating that over seven days, sixteen persons using wheelchairs or scooters were recorded by video at the two Ollie's locations where Allen and Mullen shopped.

Plaintiffs at first argued there were common questions based on Ollie's alleged failure to adopt ADA-specific standard operating procedures and employee training practices. In their reply brief, plaintiffs urged a narrower commonality argument, one they now press on appeal. They asserted that Ollie's "employees" have a common "practice" of "placing merchandise displays and stock in locations that block or limit accessibility," and they attributed this alleged practice to Ollie's corporate "merchandise stocking and display practices." App. 901–02. To support this commonality argument, plaintiffs cited allegations in their complaint, Allen's and Mullen's depositions, and photographs of Pennsylvania stores showing a "pattern and practice of path of travel obstructions." App. 901 n.8, 902 n.9.

D

The District Court certified the proposed class. The District Court agreed with plaintiffs that joinder of all class members would be impracticable. Allen v. Ollie's Bargain Outlet, Inc. , No. 2:19-CV-281, 2021 WL 1152981, at *6 (W.D. Pa. Mar. 26, 2021). Adding Allen and Mullen, the twelve customer emails, and the sixteen individuals observed in two stores over seven days, the District Court concluded that plaintiffs "have concretely shown that thirty people with potential mobility disabilities are customers of Ollie's stores." Id. In the District Court's judgment, the circumstantial evidence of thirty potentially disabled patrons, together with the community survey estimates, was enough. Id. As the District Court put it, "[t]he statistical evidence presented already indicates that there is a good chance that the proposed class is numerous, and any speculation accompanying the statistical data alone is overcome by the addition of the concrete, case-specific evidence of written complaints and video footage." Id. at *6 (citation omitted). Ollie's objected to the use of the customer complaints as inadmissible hearsay, but the District Court overruled the objection, holding that non-expert evidence like the customer complaints need not be admissible to certify a class. Id. at *5 n.5.

The District Court also held the...