Disability bias suit against bargain store chain decertified

A federal appeals court on Friday decertified a class-action disability discrimination lawsuit filed against a bargain store chain, ruling the lower court had certified an overly broad class based on inadequate evidence.

Irma Allen and Bartley Michael Mullen Jr., who are disabled and need wheelchairs, filed a putative class-action lawsuit against Harrisburg, Pennsylvania-based Ollie’s Bargain Outlet Inc., a chain with more than 400 stores in 29 states, after they found pillars, clothing racks and boxes blocking their way in two Pennsylvania stores, according to Friday’s ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Irma Allen; Bartley Michael Mullen, Jr. v. Ollie’s Bargain Outlet Inc.

The plaintiffs filed suit against the chain in U.S. District Court in Pittsburgh. The lawsuit charged the chain with violating Title III of the Americans with Disabilities Act.

The ADA prohibits retailers from discrimination on the basis of disability by failing to make reasonable modifications for individuals with disabilities; failing to remove architectural barriers; and not building or altering facilities so they are accessible and usable by the disabled, the decision said.

The district court agreed to certify the proposed class, but was overturned by a three-judge appeals court panel.

To be certified as class action, plaintiffs must show the potential number of class members is “numerous by a preponderance of the evidence,” said the ruling, pointing to an earlier case that found that a class of more than 40 members “is neither necessary nor always sufficient.”

In this case, the ruling said among other evidence, the plaintiffs declared it had video evidence showing 16 persons using wheelchairs or scooters at two Ollie’s locations. That “is not enough to satisfy plaintiffs’ burden of proof on numerosity,” the ruling said.

Furthermore, plaintiffs must show that the chain’s “visual store standards are more likely than not a common cause of failure to maintain accessible aisles across Ollie’s stores in the United States.”

“They have not met that burden,” the ruling said. “There is no proof that the visual standards caused inaccessible aisles across all Ollie’s stores nationwide,” it said. “The investigative record is limited to stores in Pennsylvania,” the ruling said, in vacating the lower court and remanding the case for further proceedings.

Attorneys in the case had no comment.

In April, a federal appeals court reinstated an ADA lawsuit against a Tallahassee, Florida, motel filed by a self-described “tester” who had no intention of visiting the facility.