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LIEBER v. MACY'S WEST

October 28, 1999

ELLEN LIEBER AND GLEN VINTON, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
MACY'S WEST, INC., DEFENDANT.



The opinion of the court was delivered by: Patel, Chief Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs are persons with disabilities who have asserted a number of barriers to access at Macy's Union Square department store. Some of the barriers allegedin this action are inaccessible merchandise sales counters (referred to by Macy's as "cashwraps"), inaccessible fitting rooms, inaccessible restrooms, blocked main or secondary aisles, and a number of other miscellaneous access barriers. However, the central issue in the case concerns the extent to which Macy's provides enough clearance between display units for people with certain mobility disabilities, such as wheelchair users, to access the merchandise on display.

The court conducted a bench trial in this action. Having considered the testimony and evidence presented at trial, the briefs of counsel, and for the reasons set forth below, the court now enters the following Findings of Fact and Conclusions of Law in accordance with its obligations under the Federal Rules of Civil Procedure. See Fed. R. Civ. Proc. 52(c) (A judgment under Rule 52(c) "shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.").*fn1

FINDINGS OF FACT

1. Macy's Union Square is a landmark retail facility in San Francisco. Macy's Union Square consists of a Main Store occupying almost an entire city block and a Men's Store located across the street.

2. The Main Store contains eight levels and a basement which have display areas open to customers. The Men's Store has five floors each of which has display areas open to the public. Altogether Macy's Union Square contains 567,000 square feet of space, approximately 450,000 sq. ft. of which is currently used to display merchandise for sale to the public. The court notes that Macy's Union Square has recently undergone a major renovation project, affecting both the Main Store and the Men's Store. Macy's witnesses testified that this renovation was slated to cost over $130 million.

3. Macy's Union Square consists of multiple components. The pertinent portions for this action are known as the Old I. Magnin Building (now referred to as the North Building), the Allen and Balley Building, the Dorman Building, and the Main Store. Macy's witnesses testified that the Old I. Magnin Building was completed gutted except for the external shell, and rebuilt as a part of Macy's Main Store. From the fourth floor up, the new North Building has been incorporated into the Main Store. The court thus finds that all portions of the North Building are subject to the new construction/alteration standard.

4. Macy's witnesses testified that the Allen and Balley Building has been completely demolished, and that an entirely new structure is being built on its former site to be fully integrated with the Main Store. Thus, the court finds that all portions of the new structure on the site of the Allen and Balley Building are subject to the new construction/alteration standards

5. The Dorman Building has been part of the Macy's Union Square site for some time. However, Macy's witnesses testified that it is being completely remodeled in conjunction with the new construction at the Allen and Balley Buildings. This will affect the usability of the entire Dorman Building. Thus, the court finds that, upon completion of the major renovation project now taking place, all portions of the Dorman Building will be subject to the new construction and alteration standards.

6. The court specifically finds that the following additional portions of both the Men's Store and the Main Store Macy's Union Square (hereafter "areas of alteration") have been altered so as to affect their usability:

    (A) Based on the testimony of Vincent Heitzmann,
  Director of Construction for Federared Stores, floors
  2-4 of the Men's Store have been altered in their
  entirety.
    (B) Based on the testimony of Heitzmann, floor 1 of
  the Men's Store, has been altered in its entirety,
  except for the south-west corner.
    (C) The lower level of the Men's Store in the areas
  containing the Mossimo Department, the Calvin Klein
  Department, the Silver Tab Department, the Nike Shop,
  and the Calvin Klein Shop, as well as the route to
  such areas, and the restrooms on the lower level
  (which serve areas of alteration) have been altered.
    (D) Based on the testimony of Andrew Brezina,
  Director of Store Planning for Federated, floor 2 of
  the Main Store in the Junior Dresses has been altered
  in its entirety.
    (E) Based on the testimony of Brezina, floor 4 of
  the Main Store in the Junior Dresses area has been
  altered.
    (F) All portions of the North Building that are
  currently open to the public have been altered.
    (G) All portions of the Allen & Balley Buildings
  that are open to the public have been altered.

Plaintiffs established that numerous barriers to access still exist at Macy's Union Square. Such barriers include restrooms with various features mounted at heights that exceed ADAAG's reach requirements (including toilet paper dispensers, towel dispensers, soap dispensers, and seat cover dispensers); lack of proper signage at entry doors; locking devices that require grasping, pinching, or twisting of the wrist; and other features that affect the usability of the restroom for people with mobility disabilities. Plaintiffs also established that numerous fitting rooms which purport to be accessible contain features that fail to conform to ADAAG requirements, such as benches that are not 24" by 48", and door handles that require tight grasping.

7. The court finds that Macy's conceded that removal of many of these barriers was readily achievable. Martin Gusky, the Vice President of Properties for Macy's West, testified that he recently reviewed the barriers described by Mr. Margen, in consultation with an access expert hired by Macy's for the purposes of this litigation. Mr. Gusky testified that, based on such review, he initiated plans to remove most of the barriers described by Mr. Margen (other than cash wraps and crowded pathways) within two months of the date of the trial.

8. Overall, the court finds that, despite limited efforts to remove barriers at Macy's Union Square, multiple and pervasive access barriers still existed at the time of trial. With regard to many of the barriers that are structural in nature, such as inaccessible fitting rooms, restrooms, bridal registries and elevation changes, the court notes that, at trial, Macy's announced new plans to remedy such barriers.

9. Plaintiffs also presented credible evidence that Macy's has repeatedly blocked even the main and secondary aisles (those leading between pads) by placing merchandise displays in the aisles so as to constrict the paths of travel to less than 36" wide. Various plaintiffs and class members testified that they have difficulty getting from the main store entrance to the elevators because of such obstacles. Defendant presented no explanation or justification for the presence of such barriers, and did not claim it was not readily achievable to remedy them. Accordingly, the court finds that Macy's failed to make adequate efforts under the readily achievable standard to maintain even the main and secondary aisles in an accessible condition at all times.

10. In areas of alteration, Macy's is also required to maintain at least one 36" accessible route to all fitting rooms and cash wraps, regardless of whether such routes pass through merchandise areas. Plaintiffs established that Macy's has failed to maintain 36" accessible routes to fitting rooms and cashwraps in areas of alteration. Peter Margen identified numerous pathways in altered areas of the Men's Store in which routes to fitting rooms and cashwraps were blocked by moveable merchandise display units.

11. While Macy's witnesses clam that they seek to maintain accessible routes to fitting rooms and cashwraps, this testimony is not credible, since Macy's did not present or name any person at the Union Square Store who directly accepts responsibility to maintain such pathways. Macy's Director of Stores, Rebecca Canfield, who previously served as the store manager of Macy's Union Square indicated that this issue has never been addressed by any Macy's or Federated policy, or even by a memo.

12. Throughout the display areas, most of the merchandise is placed on racks, shelves and other structures designed to hold and display the merchandise. Some of these structures such as shelving are clearly attached to walls as are heavy display counters called "caselines". Mr. Heitzmann testified that case lines are fixed, despite the fact that they are not physically attached to the floor. He indicated that they are considered fixed because they are "wired," or electronically attached to their locations on the floor. Macy's presented no evidence to contradict Mr. Heitzmann. The court thus finds that caselines are fixed so as to be subject to ADAAG § 4.1.3(12)(b) in all areas of alteration. Other various types of tables and display structures are moveable, according to Macy's personnel. These include a variety of metal racks variously called 2-ways (or T-stands), 4-ways, and rounders. Within the retail industry all of these display features, whether fixed or moveable, are termed "fixtures." To avoid confusion with the legal definition of a fixture in real estate law, however, the court will refer to all of the merchandise display features at issue here as "display units," a term utilized in the Americans with Disabilities Act Access Guidelines.

13. The merchandise display units throughout Macy's Union Square are generally "self service" such that customers are expected to obtain merchandise by independently browsing and/or searching through the display areas for an item that they wish to purchase, removing that item from the display unit on their own, and bringing the item to a cash register to process their purchase.

14. Although Macy's sales clerks (called "associates" by Macy's) are to some extent available to assist customers in locating and/or obtaining merchandise to the extent permitted by the clerk's other duties (such as processing purchases at the sales counter), Macy's admits that the Store is generally operated according to a self-service model.

15. Macy's merchandise display areas are generally organized according to departments, each of which focuses on a particular type of merchandise. Each department consists of one or more "pads" in which the merchandise is placed on display units.

16. "Main" and "secondary" aisles lead patrons into the facility from various entrances and from one pad to another. Macy's admits that the display units are generally positioned within the pads with a certain clearance between each unit for the purpose of enabling customers to get to the merchandise.

17. Ms. Canfield, who previously served as the store manager of Macy's Union Square, testified that Macy's practice generally is to try to provide 24" to 30" clear space between its merchandise display units.

18. Macy's stipulated at trial that a 30" pathway was, in fact, unusable for various class members.

19. Ms. Canfield estimated that, at the time of trial, 15% — 25% of the display units would have to be removed just to provide a 30" clear space between all display units. In the Men's Store, Ms. Canfield testified that 5%-15% of the units likely would need to be removed to provide 30" of clearance.

20. Defendant's professional floor planner, Kevin Ellis, the head of Macy's West Planning, Design and Construction Departments, testified that his departments use 36" between display units as the standard. Once the facility is designed and constructed, however, he turns responsibility for maintaining clearance over to the store's operational personnel, such as Ms. Canfield.

21. Similar testimony was presented by Andrew Brezina, the head of Federated's planning and design department. Mr. Brezina's department is responsible for designing the layout of the display areas in newly constructed and renovated Federated Stores, including most of the Macy's Union Square Store which has been undergoing a comprehensive renovation. (The Men's Store renovation was completed in early 1997; the Main Store renovation was ongoing at the time of trial.) Mr. Brezina testified that he plans such layouts to provide 30" to 36" of clear space between the merchandise placed on units. He testified that this is a "comfort zone" required for customers to be comfortable shopping.

22. Mr. Brezina admitted that he had no control over the merchandise layouts once the operations people (such as Ms. Canfield) take control of the facility, and that he routinely observed unit layouts at Macy's Union Square that did not comport with the plans prepared by his planning and design departments.

23. Plaintiffs' expert, Peter Margen, documented numerous instances at the Union Square Store facility where pathways between merchandise racks in pads provided substantially less than 36" of clear width. Pathways often start out with sufficient clearance and then narrow at one or more points due to a lack of organized layout within the pads.

24. Ms. Canfield initially claimed that this limited spacing was designed to provide a "comfort zone" for all shoppers, including wheelchair users. On cross-examination, Ms. Canfield admitted that the 24" — 30" spacing practice is based solely on her personal perception of the needs of able-bodied customers. In fact, she admitted that she has no idea how wheelchair users actually get to the merchandise display at Macy's Union Square and admitted in her deposition that wheelchair users would have difficulty accessing at least 25% of all the merchandise on display units even at the slowest time of the year when inventories are lowest. She further admitted that conditions get even more congested at the holiday season (Thanksgiving to New Years) when inventories are significantly higher.

25. Ms. Canfield testified that she had never consulted with Mr. Brezina, Federated's in-house expert on department store planning, and that she was unaware that he considered 30-36" spacing to be necessary for able-bodied patrons to be comfortable.

26. Ms. Canfield testified that she is unaware of any formal policy or memo directing staff to maintain any minimum clearance between display units, and does not know if anyone within Macy's or Federated has gone through the Union Square store at any time to try to maximize the extent to which wheelchair users can get up to the merchandise on displays inside of pads, even without losing any selling space.

27. Ms. Canfield admitted that she doesn't know the extent to which her 24"-30" standard is generally followed at the stores under her supervision.

29. Macy's witnesses testified that the merchandising strategy at Macy's Union Square consists of placing all inventory on the selling floor when it arrives at the store, and requiring each department to "clear" all of its own inventory. Macy's personnel stated that the store generally does not use stock rooms to hold duplicates of items, nor does it generally use clearance outlets to dispose of items that are not selling at its mainline stores. Further, Macy's witnesses testified that Macy's Union Square does not transfer merchandise from one store to another within the Macy's West chain, nor does it attempt to renegotiate inventory purchases with vendors, except on very rare occasion. Thus, according to Macy's personnel, when stock does not sell as well as expected, the merchandise generally remains on the floor even as more merchandise is delivered and placed out on displays.

30. The primary mechanism specifically described by Macy's for promoting inventory control is the use of price mark-downs on inventory.

31. Various witnesses testified that certain of the display units utilized at the store are substantially more efficient in terms of holding more merchandise in a given area. Rounders generally hold the most merchandise in a given space, while tables and two-ways generally hold the least. Macy's personnel testified that many of the display units used at Macy's Union Square are chosen for the "look" they present to customers (i.e., the visual appeal) even though they are not the most efficient use of space.

32. Macy's vice president of floor planning, Kevin Ellis, admitted that Macy's occasionally uses high efficiency units, but generally relies upon less-efficient units. Macy's also utilizes display units provided by vendors ...


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