Western Union / americans with disabilities act
My complaint is against Western Union. I went to their agents store to send a money wire and due to my disability, could not climb the stairs. The store was out of compliance with the ADA because it provided no other means, preventing me to complete my intended chore. I personally filed a suit and the store has made changes and settled the matter, but Western Union refuses to make sure their Agents are in compliance with the ADA. The details are below:
STATEMENT OF FACTS
Defendants own, operate, franchise, contract with or lease the FACILITY which is a public accommodation consisting of a convenience store on the ground floor of the 211 N. Ervay Building in Dallas. This case arises out of Defendant’s failure to provide the minimum legally required access to this public accommodation for persons with disabilities. The inaccessibility of the FACILITY to persons with disabilities is illegal, degrading and humiliating and further, many of the omissions of the Defendants were readily achievable and were otherwise required by both Federal and Texas laws and would greatly assist disabled persons at little expense to Defendants. Specifically, the most serious violation is that the physical layout of the FACILITY has two entrances, one of which is accessible to those with disabilities, and the other has steps leading up to the store. Unfortunately, NAINA and MART have chosen to lock and place merchandise in front of the door which is ADA compliant, thus requiring all customers to traverse up the stairs including those using wheelchairs, walkers, canes and crutches.
At all times pertinent herein, Plaintiff was a handicapped person with disabilities “substantially limiting a major life activity” within the meaning of the ADA and Chapter 121. Plaintiff visited the FACILITY in September, 2006 for the purpose of sending a Western Union wire transfer to a friend in California. Plaintiff found many violations of handicapped access standards throughout the FACILITY, as set forth hereinafter and he was unable to fully use it due to his disabilities. Plaintiff sustained injury in his attendance at the FACILITY which resulted in Plaintiff being degraded and humiliated in public. Plaintiff also brings this suit as a “private attorney general” enforcing the ADA in the spirit of Walker v. Carnival Cruise Lines [protected] F.Supp.2d 1135, 1143.
Defendants NAINA; MART and UNION were advised of the non-compliance of the FACILITY and of the exact regulation violations. They were afforded an opportunity to informally resolve this matter without the need for litigation. However, Defendants NAINA and MART have failed to indicate any interest in informal resolution and this suit follows. Defendant UNION initially indicated an interest in settling the matter and had a Dallas field agent visit the FACILITY, where according to their representative, they took photographs verifying their failure to comply with the ADA but declined to either sever their relationship with NAINA and MART or to implement changes whereby callers would be provided access to a list of agents whose facilities are in compliance and accessible to the disabled. Further, the representative threatened Plaintiff with a suit to recover costs of defending a “frivolous” suit, citing cases relating to franchisee/franchisor relationships, rather than principle and agent relationships which have held under the ADA is being applicable to the principle and their agents. Walker v. Carnival Cruise Lines (1999) 63 F.Supp.2d 1083. On October 21, 2006, Plaintiff re-inspected the FACILITY to determine if his correspondence had caused any improvement and found absolutely no changes. The following ADAAG and TAS violations are present at the FACILITY:
· There are physical impediments to access of the shopping area in the form of stairs and the handrail on the downward side of the stairs is also blocked by a video game machine on the lower landing. (ADAAG 4.9.4);
· The ATM machine does not have sufficient clear floor space as required (ADAAD 4.34.1); There are video game machines; merchandise and merchandise awaiting shelving, protruding into the aisles which decreases the passage space to below the required width (ADAAG 7.2 and 4.2.1);
· The door handle to the FACILITY requires a hard hand grasp in violation of the ADA (ADAAG 4.13.5 and 4.13.9); and the service and payment counter in the FACILITY is too high (ADAAG 7.2 and 7.4);
· The pay telephone located outside in front of the FACILITY is not hearing aid compliant (ADAAG 4.31.5); and the handset cord is not of sufficient length (ADAAG 4.31.8).
CAUSES OF ACTION
I. VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
Plaintiff incorporates by this reference all allegations contained in paragraphs 1 through 11, inclusive.
The Americans with Disabilities Act, passed in 1990, established as law the nation’s interest in eradicating the bigotry and barriers faced by individuals with disabilities. 42 U.S.C. § 12101, et seq. The ADA states its first goal as being to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1) (1999).
Congress found that historically, society tended to isolate and segregate individuals with disabilities and despite some improvements, such forms of discrimination against individuals with disabilities continues to be a serious and pervasive social problem. See 42 U.S.C. § 12101(a)(2).
Plaintiff brings this suit seeking to vindicate a “policy of highest priority” and is a handicapped individual who suffers from glaucoma, severe degenerative bone, disc and foraminal changes to his lower lumbar spine, zygapopyseal sclerosis, and insulin-dependent diabetes with consequential neurological damage to his legs and feet.
Defendants NAINA and MART have failed to modify policies and procedures at the FACILITY to ensure equal access for persons with disabilities and such acts and omissions constitute an ongoing and continuous violation of the ADA and Plaintiff’s rights as secured thereunder. Said conduct, unless enjoined, will continue to inflict injuries for which Plaintiff and others with disabilities have no adequate remedy at law. Defendants DATA and UNION did not and continue to fail in requiring the facilities of their Agents to comply with state and federal disabilty statutes, including the ADA.
Consequently, Plaintiff is entitled to injunctive relief pursuant to Section 308 of the ADA, along with reasonable costs and disbursements.
II. VIOLATION OF CHAPTER 121
Plaintiff incorporates by this reference all allegations contained in paragraphs 1 through 16, inclusive.
Pursuant to legislative mandate, the Texas Department of Licensing and Regulation adopted TAS (Texas Accessibility Standards) to be the minimum standards for compliance. Modeled after the ADAAG, the goal of TAS is to encapsulate the requirements of public facilities which are necessary for them to meet state standards for accessibility. Defendant’s violation of the ADAAG as alleged above, also constitute violations of the corresponding sections of the Texas Accessibility Standards.
By committing the TAS violations alleged herein, Defendants have violated Chapter 121 and also the rights of Plaintiff. Chapter 121 establishes that it is the “policy of the state to encourage and enable persons with disabilities to participate fully in the social and economic life of the state to achieve maximum personal independence... and to otherwise fully enjoy and use all public facilities available within the state”. Id. § 121.001.
Section 121 provides for a penalty of a minimum of $100 to an aggrieved party for each violation of the aforementioned guidelines for which defendants are liable to Plaintiff.
III. GENERAL NEGLIGENCE
Plaintiff incorporates by this reference all allegations contained in paragraphs 1 through 20, inclusive.
Defendants NAINA and MART had and continue to have a duty to exercise ordinary care in operating the FACILITY and have failed and continue to fail to use such ordinary care. Defendants DATA and UNION had and continue to have a duty to require that their authorized agents comply with both state and federal disability statutes, including the ADA or minimally, to provide information to the public on which agents have such facilities.
As an actual and proximate result of Defendant’s failure to use ordinary care, Plaintiff was subjected to a degrading and humiliating experience attempting to use the FACILITY and has suffered emotional distress and damages in an amount of $25,000.
At all times relevant hereto, there was in effect both the Americans with Disabilities Act and Texas Chapter 121, all of which require that public accommodations and facilities such as the FACILITY provide services to people with disabilities which are equal to the services which are provided to patrons who are not physically disabled.
Defendant’s acts and omissions as alleged herein are in violation of statutory requirements, including but not limited to the ADA and Chapter 121, which are designed to protect persons with disabilities from the type of harm and discrimination as was inflicted upon Plaintiff when he suffered emotional pain and suffering while attempting to use the FACILITY.
Each of Defendants conduct thus constitutes negligence and negligence per se under the rationale of Smith v. Walmart (6th Cir., 1999) 167 F.3d 286.
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