Allen v. Ollie's Bargain Outlet, Inc.

IRMA ALLEN and BARTLEY MICHAEL MULLEN, JR.individually and on behalf of all others similarly situated, Plaintiffs, v. OLLIE'S BARGAIN OUTLET, INC., Defendant.

Civil Action No. 2:19-cv-281

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

March 26, 2021

Hon. William S. Stickman IV

OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiffs, Irma Allen ("Allen") and Bartley Michael Mullen, Jr. ("Mullen"), filed a putative class action under Federal Rules of Civil Procedure 23(a) and 23(b), on behalf of themselves and all others similarly situated, requesting injunctive and declaratory relief on the ground that Defendant, Ollie's Bargain Outlet, Inc. ("Ollie's"), does not provide people utilizing wheelchairs or scooters with full and equal enjoyment of its facilities in violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189. (ECF No. 15, pp. 28-30). Plaintiffs maintain that Ollie's used policies and procedures that facilitated or caused fixed and movable access barriers to unlawfully restrict the interior pathways of its stores, thereby preventing people with disabilities from obtaining Ollie's goods. (ECF No. 15, pp. 6-9).

Plaintiffs request that the Court certify their proposed class under Federal Rule of Civil Procedure 23 (ECF No. 47), and in doing so, take judicial notice of several pieces of evidence (ECF No. 65). For the reasons set forth below, Plaintiffs' Request for Judicial Notice (ECF No. 65) will be granted in part and denied in part, and Plaintiffs' Motion for Class Certification (ECF No. 47) will be granted.

I. BACKGROUND

Allen and Mullen each have mobility disabilities and require the use of wheelchairs for travel. (ECF No. 57-2, p. 5); (ECF No. 57-3, p. 4). Ollie's operates more than 350 stores throughout the United States. (ECF No. 51-11, pp. 3-16). Allen is a customer of Ollie's store in New Castle, Pennsylvania (ECF No. 57-2, pp. 9-10), and Mullen is a customer of Ollie's stores in New Castle, Pennsylvania and Monaca, Pennsylvania (ECF No. 57-3, pp. 7-8). Allen and Mullen were prevented from accessing some of Ollie's goods because of movable barriers, including, among other things, merchandise displays, clothing racks, display cases, and boxes, as well as some fixed barriers, such as pillars or columns. (ECF No. 51-1, pp. 3-4, 11-12, 15-16); (ECF No. 51-2, pp. 2-3). Allen and Mullen produced written complaints detailing the complications several other wheelchair-bound or individuals with disabilties endured while shopping at Ollie's stores. (ECF No. 51-3). Subsequent investigations of Ollie's stores also revealed and confirmed some of the barriers complained of, such as merchandise displays, clothing displays, and boxes restricting or narrowing the pathways of Ollie's stores. (ECF No. 51-5); (ECF No. 51-6); (ECF No. 51-7).

Plaintiffs allege that Ollie's employs uniform policies and procedures that actively or intentionally facilitate the placement of barriers in interior paths of travel to facilitate revenue and profits. (ECF No. 15, ¶¶ 1-3). Ollie's corporate designee confirmed that Ollie's uses company-wide policies and procedures consisting of Visual Store Standards, Daily Facilities Maintenance Scans, Daily Store Safety Scans, Monthly Maintenance Scans, and a "Yes, I Can" program. (ECF No. 57-1, pp. 12-13, 38-39). Ollie's policies do not expressly mention the ADA. (ECF No. 57, p. 9). Ollie's does not train or educate its employees on ADA compliance. (ECF No. 57-1, pp. 5-6). These policies collectively govern the operation and appearance of Ollie's stores. Ollie's provides each store with training and instructions for implementing its policies and procedures, and each store has an individual charged with ensuring compliance with those policies. (ECF No. 57-1, pp. 7-8, 22-23). The Visual Store Standards policy provides instructions for setting up and displaying merchandise. (ECF No. 51-9); (ECF No. 51-10). The "Yes, I Can" policy applies to all employees and requires them to retrieve products for customers that are unable to access the goods on their own. (ECF No. 51-8, pp. 48-49). The daily and monthly scans of Ollie's stores are designed to ensure, among other things, that the overall appearance and safety of the stores are compliant with Ollie's policies and practices. (ECF No. 51-12); (ECF No. 51-13); (ECF No. 51-14).

Plaintiffs contend that, because Ollie's policies and procedures intentionally positioned merchandise displays, clothing racks, boxes, and other movable barriers in a manner that restricted individuals with mobility issues from accessing Ollie's goods and services (ECF No. 15, ¶¶ 1-3), Ollie's violated several ADA provisions found in 42 U.S.C. §§ 12182(a) and 12183(a) (ECF No. 15, ¶¶ 20-29, 61-65). Plaintiffs request permanent injunctive relief in the form of removal of the barriers at issue, modification of Ollie's policies and procedures, and the continued monitoring of Ollie's stores. (ECF No. 15, p. 31). As Plaintiffs see it, they are not the only ones who have encountered allegedly unlawful barriers at Ollie's stores, and they now request that the Court certify their action as a class action under Federal Rule of Civil Procedure 23. (ECF No. 47). In addition, Plaintiffs request that the Court take judicial notice of several pieces of evidence. (ECF No. 65). Oral argument was held on Plaintiffs' Motion for Class Certification (ECF No. 47). This matter is ripe for adjudication.

II. ANALYSIS

A. Judicial Notice

Before examining whether class certification is warranted, the Court must decide whether to take judicial notice of facts that Plaintiffs use in support of their motion. Allen and Mullen request that the Court take judicial notice of three things: (1) the Settlement Agreement between the United States of America and DolgenCorp, LLC ("Dollar General Settlement Agreement") (ECF No. 65-1); (2) disability statistics located at https://www.disabilitystatistics.org/. (ECF No. 51-15); and (3) zip code tabulation statistics compiled by the United States Census Bureau located at https://www.census.gove/programs-surveys/geography/guidance/geo-areas/zctas.html. (ECF No. 51-16). Ollie's agrees that the Dollar General Settlement Agreement and the zip code statistics should be judicially noticed. (ECF No. 70, pp. 1-2). The parties disagree as to whether judicial notice of the disability statistics is appropriate, and upon meeting and conferring on the issue, they filed a Joint Status Report (ECF No. 72) indicating their continued disagreement. Because the parties agreed that the Court may judicially notice the Dollar General Settlement Agreement and the zip code tabulation statistics compiled by the United States Census Bureau, the Court need only address whether the disability statistics may be judicially noticed.

Plaintiffs attached to their Memorandum in Support of their Motion for Class Certification (ECF No. 51) a printout of statistical information entitled "State-Level Estimates of Individuals with Mobility Disabilities" that was purportedly "[r]etrieved from [the] Cornell University Disability Statistics website [at] https://www.disabilitystatistics.org/." (ECF No. 51-15, p. 1 n.1).¹ Ollie's contends that the statistics cannot be judicially noticed because the source of the statisticshas not been provided, and the Court does not have the necessary information to take judicial notice. (ECF No. 70, p. 2).

A court may take judicial notice of information that is not subject to reasonable dispute because it is either "generally known within the trial court's territorial jurisdiction" or it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(1)-(2). A court may take judicial notice on its own, or it must do so if a party requests notice and supplies necessary information. Fed. R. Evid. 201(c)(1)-(2). Where evidence is derived from a website, our Court of Appeals has cautioned that "[w]hile it is proper for a court to take judicial notice of facts not reasonably subject to dispute, . . . several concerns come into play . . . . ." Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir. 2007) (citation omitted). At the outset, that evidence must "be authenticated before it can be admitted[,]" and judicial notice is only permitted "from sources not reasonably subject to dispute." Id. (citation omitted).

The printout contains information that is not generally known within the community, and the accuracy of the printout is questionable because it is unauthenticated. Further, it is not readily apparent who prepared the printout. Thus, the Court will not take judicial notice of the disability statistics printout (ECF No. 51-15) because it is unauthenticated and the Court cannot definitively hold that the statistics are not subject to reasonable dispute.

B. Article III Standing

Moving onto Plaintiffs' Motion for Class Certification, Ollie's argues as a threshold matter that the Court should deny certification because Plaintiffs have failed to establish that they and others suffered an injury in fact that is fairly traceable to the conduct of Ollie's, and that their injuries are likely to be redressed by a favorable judicial decision. (ECF No. 57, p. 1). Plaintiffscounter that they have satisfied the requirements of constitutional standing. (ECF No. 64 pp. 4-6).

Article III standing is conferred when a plaintiff has (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Mielo v. Steak 'n Shake Operations, Inc., 897 F.3d 467, 478 (3d Cir. 2018). The plaintiff bears the burden of showing the above three elements. Id. (citation omitted). The Article III standing inquiry "[i]n the class action context, . . . focuses solely on the class representative(s)." Id. In other words, "putative class members need not establish Article III s...