John O'Brien Jul. 28, 2015, 1:44pm


SAN JOSE, Calif. (Legal Newsline) – A federal judge has “tentatively” dismissed the lawsuit of a woman who claims P.F. Chang’s has violated federal anti-discrimination laws by charging more for gluten-free items.

In February, P.F. Chang’s moved to dismiss Anna Marie Phillips’ class action lawsuit, claiming that her celiac disease does not make her a disabled person under the Americans with Disabilities Act. It urged U.S. District Judge Ronald Whyte to dismiss the suit before the entire restaurant industry was impacted.

Phillips sued P.F. Chang’s in a California state court in December, and the defendant later removed the case to U.S. District Court for the Northern District of California.

“Plaintiff has failed to plausibly allege that she is disabled under any applicable statute since her condition constitutes only a minimal limitation on the major life activity of eating,” the motion says.

“She can still consume all gluten-free foods. No authority supports plaintiff’s baseless position that she is disabled.”

The company also said it does not discriminate because it charges all guests the same prices for gluten-free items.

“The price P.F. Chang’s charges to all guests for its gluten-free items does not include an unlawful ‘surcharge’ under the ADA,” the motion says.

“The disability statutes only require equal access; they do not require businesses to reduce their prices or even alter their inventory. And while plaintiff’s complaint fails on its face and as a matter of law, the detrimental implications of allowing plaintiff’s baseless claims to proceed impact an entire industry.”

The class action suit states that because a gluten-free diet is medically necessary for individuals with celiac disease, gluten-free patrons have no choice but to order at the higher price.

Surcharges for gluten-free items are claimed to occur even where the items at issue may naturally be gluten free, such as vegetable dishes, the complaint says.

Phillips brought suit on behalf of persons with celiac disease or gluten intolerance who ordered items from P.F. Chang’s gluten-free menu in California within four years prior to the suit.

In a February Legal Newsline article, the CEO of the Celiac Disease Foundation did not seem to agree with Phillips’ claims.

“Celiac Disease Foundation recognizes that restaurants bear a financial burden for the employee training and other accommodations that are required to serve meals that are safe for those with celiac disease,” Marilyn G. Geller said.

P.F. Chang’s cited the article in its motion.

“Moreover, even the national organization that advocates for sufferers of celiac disease does not seem to support plaintiff’s suit…” the motion says.

Phillips is represented by Anthony Orshansky and Justin and Alexandria Kachadoorian of CounselOne in Beverly Hills, Calif. They filed their response on April 10.

“Defendant created a special menu expressly for persons with celiac disease because it knows that they cannot consume foods that are even exposed to gluten,” the response says.

“Defendant intended the gluten-free menu to target – and profit from – this group of disabled persons.”

In a footnote, the plaintiff’s attorneys say P.F. Chang’s has inappropriately used the definition of “disability” from the ADA, even though the plaintiff’s claims are premised on California’s Unruh Act and the Disabled Persons Act.

Those two laws define “disability” as a physiological condition that ‘affects’ a body system and ‘limits’ a major life activity,” they argue.

At a hearing on May 29, Whyte heard oral arguments. According to the case’s docket, the motion to dismiss was “tentatively granted” at the hearing, and a final ruling will be issued by the court later.

A case management conference has been scheduled for Aug. 14.

P.F. Chang’s is represented by Jon P. Karbassakis and Michael K. Grimaldi of Lewis Brisbois Bisgaard & Smith in Los Angeles.

From Legal Newsline: Reach editor John O’Brien at jobrienwv@gmail.com.

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