Nat'l Fed'n of the Blind, Inc. v. Wal-Mart Assocs., Inc.

Decision Date12 October 2021
Docket NumberCivil Action No. RDB-18-3301
Citation566 F.Supp.3d 383
Parties NATIONAL FEDERATION OF THE BLIND, INC., et al., Plaintiffs, v. WAL-MART ASSOCIATES, INC., Defendant.
CourtU.S. District Court — District of Maryland

Chelsea Jones Crawford, Eve Lynne Hill, Joseph B. Espo, Kevin D. Docherty, Brown Goldstein & Levy, LLP, Baltimore, MD, for Plaintiffs The National Federation of the Blind, Inc., The National Federation of the Blind of Maryland, Cynthia Morales, Linwood Boyd, Melissa Sheeder.

David Glenn Barger, Michelle D. Gambino, Pro Hac Vice, Greenberg Traurig LLP, McLean, VA, Dawn Allison Ellison, Greenberg Traurig, LLP, Washington, DC, Naomi G. Beer, Pro Hac Vice, Greenberg Traurig LLP, Denver, CO, Robert S. Fine, Pro Hac Vice, Robert S. Galbo, Pro Hac Vice, Greenberg Traurig PA, Miami, FL, for Defendant.

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge This case addresses the scope of a national retailer's obligations under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. , to assist visually impaired customers with a modern self-checkout service. Plaintiffs Cynthia Morales, Linwood Boyd, and Melissa Sheeder (collectively, the "Individual Plaintiffs"), supported by the National Federation of the Blind and the National Federation of the Blind of Maryland (collectively, the "Federations"), claim that self-checkout kiosks operated by Defendant Wal-Mart Associates, Inc. ("Walmart") violate the ADA by "exclud[ing] blind people from using the service in the way that it was intended—independently and privately." (Pls.’ Mem. Supp. Summ. J. 2, ECF No. 95-1.) Plaintiffs seek a nationwide injunction that would direct Walmart to make these kiosks "accessible from start to finish" by implementing modern tactile and sound-based controls. (Def.’s Mem. Supp. Summ. J. 5–7, ECF No. 87.) These changes are not required by the text of the ADA or the Design Standards promulgated by the Department of Justice, and neither party could identify any retailers that use this technology nationwide.

Pending now are competing Motions for Summary Judgment filed by both parties. (Def.’s Mot. Summ. J., ECF No. 87 ; Pls.’ Mot. Summ. J., ECF No. 95.) The parties do not dispute any material facts, and focus their arguments exclusively on whether the Plaintiffs have standing to pursue their ADA claims, and whether the ADA entitles them to relief as a matter of law. (See Def.’s Repl. 3, ECF No. 106 ; Pls.’ Repl. 6, ECF No. 113 ) These summary judgment motions were consolidated, and a hearing was held on September 24, 2021. (ECF No. 122.) For the following reasons, Walmart's Motion for Summary Judgment (ECF No. 87 ) is hereby GRANTED, and Judgment shall be ENTERED in its favor. PlaintiffsMotion for Summary Judgment (ECF No. 95 ) is hereby DENIED.

BACKGROUND
I. Walmart's Self-Checkout Kiosks

Walmart is a retail corporation that owns and operates thousands of stores nationwide. (Pls.’ Mem. Supp. 3.) As of January 2020, Walmart ran a total of 3,571 Supercenters, 376 Discount Stores, and 809 Neighborhood Markets around the continental United States and Puerto Rico. (Def.’s Ans. to Pl. L. Boyd's Req. for Admis. 2, ECF No. 95-3 ). At a growing number of establishments, Walmart allows customers to purchase items using self-service kiosks. (Pls.’ Mem. Supp. 3.) These kiosks include several hardware components, such as an interactive touchscreen, a handheld scanner, a cash machine, and a scanner scale. (Id. at 4–5; Dep. of R. Crozier. 36:18–37:13, 37:18–38:11, ECF Nos. 87-1, 95-4.) The kiosks are also accompanied by a "tactile numeric keypad," where customers may privately input their financial information. (C. Earl Expert Report, Jun. 17, 2021, at 6–7, ECF Nos. 87-12, 95-21; Interacting with Associates and Customers who are Visually Impaired ("Associate Assistance Guidelines"), ECF No. 106-2.) The Plaintiffs have acknowledged in their submissions to this Court and at the hearing on September 24, 2021 that these tactile keypads adequately protect this financial information.

Walmart appoints its associates to serve as "self-checkout hosts" and assist customers with self-checkout if help is requested. (Def.’s Mem. Supp. 3; Crozier Dep. 24:4–11, 34:14–37:16, 82:21–83:14; Dep. of K. Graham 83:1–18, ECF Nos. 87-2, 95-7.). These associates handle several tasks, such as "zoning the area, arranging and organizing merchandise and supplies, ... loss prevention through monitoring checkouts ..., processing customer transactions by operating register equipment, assisting with scanning items for customers, assisting customers with self-checkout, and assisting customers with questions and register prompts." (Def.’s Mem. Supp. 3; Job Description, Self-Checkout Attendant, ECF No. 106-1 ) Walmart requires associates to help blind customers complete the self-checkout process, and specifically directs them to allow blind customers to access the tactile keypads privately in order to enter their financial information. (Crozier Dep. 25:20–26:6, 34:13–35:13, 41:10–43:2, 82:14–20; Associate Assistance Policy.)

II. Plaintiffs’ Difficulties with Self-Checkout

The National Federation of the Blind advocates for "full participation in society in terms of equality" for the visually impaired. (Pls.’ Mem. Supp. 7, 19–20; Dep. of M. Riccobono 35:13–22, ECF Nos. 87-8, 95-14.) Its state affiliate, the National Federation of the Blind of Maryland, works in the State of Maryland "to strengthen the law about public accommodation and discrimination." (Pls.’ Mem. Supp. 7; Dep. of S. Maneki 69:4-10, ECF Nos. 87-9, 95-15.) Plaintiffs Morales, Boyd, and Sheeder are visually-impaired Maryland residents, members of both Federations, and frequent Walmart shoppers. (See Maneki Dep. 60:21–61:3; Riccobono Dep. 35:13–22; Dep. of C. Morales 21:9–23:10, 57:17–58:15, ECF Nos. 87-3, 95-10; Dep. of L. Boyd 27:2–9, 30:2–12; ECF Nos. 87-4, 95-11; Dep. of M. Sheeder 34:1–19, ECF No. 87-6, 95-12.) Each of the Individual Plaintiffs proffer harm while attempting to complete the self-checkout process, in that they would like to be able to use Walmart's kiosks without assistance from sighted individuals. (See Pl. M. Sheeder's Ans. to Def.’s Second Set of Interrogs. No. 20, ECF No. 87-7 ; Morales Dep. 62:19–22; Boyd Dep. 36:5–38:1.)

In July 2018, Plaintiff Sheeder visited the Walmart in Glen Burnie, Maryland with a visually-impaired friend. (Sheeder Dep. 34:16-19; 39:3-14.) As this trip was a "spur of the moment" occasion, Sheeder did not call customer service to arrange for associate assistance. (Id. 36:8-12.) When they arrived at the store, Sheeder and her friend went to customer service to ask for assistance, but were told that "there would be a little bit of a wait." (Id. 36:13-20.) With the assistance of her friend, the "Seeing AI" app on her cellphone, and several people on the floor, Sheeder managed to navigate the store, locate all of her items, and begin the self-checkout process. (Id. 36:21–37:5, 37:18–39:2.) After struggling to scan some of her items, Sheeder's friend asked a nearby employee to assist them. (Id. 41:5–21.) Instead of helping them check out, the self-checkout host cancelled their transaction, helped them put their merchandise back in the cart, and directed them to a cashier lane. (Id. 41:16–42:11.)

On January 30, 2017, Plaintiffs Morales and Boyd visited the Walmart store in Ownings Mills, Maryland. (Pl. C. Morales Ans. to Def.’s Second Set of Interrogs. No 19, ECF No. 95-13.) An associate assigned by customer service helped them locate items, accompanied them to the self-checkout area, and helped them scan their purchases. (Boyd Dep. 20:1–21:13.) When they completed their transaction with the employee's assistance, the automated kiosk declared: "don't forget your cash." (Morales Dep. 73:12–19.) Upon examining their receipt, Morales and Boyd realized that the Walmart associate assigned to help them had stolen $40 using the kiosk's cash-back feature. (Id. 73:18–19; Boyd Dep. 21:14–18.) They promptly notified a manager and called the police. (Boyd Dep. 22:2–23:19; Morales Dep. 20:9-13, 62:7-17.) Walmart refunded the stolen money and terminated the offending employee. (Boyd Dep. 23:10–19; Morales Dep. 20:5–8)

III. Litigation by the National Federation of the Blind

Plaintiffs filed their initial Complaint on October 25, 2018, and the operative Amended Complaint on November 27, 2018. ( Compl., ECF No. 2 ; Am. Compl., ECF No. 9.) In their Amended Complaint, Plaintiffs seek a nationwide injunction directing Walmart to implement upgraded kiosks featuring "screen access software and tactile guides and controls routinely used in other types of self-service kiosks to provide nonvisual access to information relayed on the screen and to allow for an accessible method of inputting selections." (Am Compl. ¶¶ 33–41; Maneki Dep. 51:4–181; Riccobono Dep. 48:14–49:5, 55:1–13.) Among other items, Plaintiffs request a tactile keypad, a headphone jack, text-to-speech output, Braille labels, and upgrades to the kiosks’ text and graphics. (Pls.’ Mem. Supp. 34–35.) Plaintiffs demand that Defendant "begin placing accessible kiosks into stores within 180 days and complete the task within 3 years." (Id. )

Walmart filed a Motion to Dismiss the Amended Complaint (ECF No. 12 ), and this Court denied that motion. (ECF No. 25.) Discovery commenced pursuant to a Scheduling Order entered on October 3, 2019 (ECF No. 27 ), which was modified several times between October 2019 and April 2021 as a result of delays caused by the COVID-19 pandemic. (See generally ECF Nos. 29, 34, 46, 54, 66, 77, 80.) Over the course of this lengthy discovery timeline, the parties deposed several witnesses, issued multiple interrogatories, and produced two experts to testify regarding the accessibility of Walmart's self-checkout kiosks. Following the conclusion of discovery, Defendant filed the pending Motion for Summary Judgment on July 23, 2021. (ECF No. 87 ). The Plaintiffs filed their Response in Opposition and ...

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