John O'Brien May 12, 2016, 9:21am


SAN JOSE, Calif. (Legal Newsline) – The restaurant industry seemingly will not face a ruling sought by a woman with celiac disease who claimed she was discriminated against when she was charged extra for gluten-free items at P.F. Chang’s.

Anna Marie Phillips has instead asked a federal judge to dismiss her lawsuit against the Chinese food chain. She originally sued it in December 2014 after paying a $1 surcharge on gluten-free items, but her claims were met with skepticism by a group that advocates for those with celiac disease.

U.S. District Judge Ronald Whyte, of the Northern District of California, had dismissed the original complaint in August, but he reversed course once the plaintiff amended her complaint. On Nov. 23, he ruled that Phillips had sufficiently pleaded her claims in that amended complaint.

“(P)laintiff has pled, and repeatedly argued, that gluten-free foods are not materially different from other foods, in ingredients or difficulty of preparation, yet celiac customers are forced to pay more for gluten-free meals,” Whyte wrote.

Phillips had alleged that P.F. Chang’s did not impose a similar surcharge to other customers who requested modifications to items on the regular menu.

Her attorneys, Anthony Orshansky and Justin Kachadoorian, argued P.F. Chang’s did not charge extra to customers who wished to make dishes less spicy or vegetarian, as well as those with peanut allergies who requested their food avoid contamination with peanuts or peanut oil.

They also said P.F. Chang’s targeted customers who need gluten-free items with the surcharge.

“Plaintiff’s allegations may not be able to be proved,” Whyte wrote. “(A)ccording to Plaintiff’s own allegations, even if two menu items contain the same naturally gluten-free ingredients, they cannot be prepared in the same way.

“The evidence may establish that gluten-free items are different products for which Defendant can charge what it determines is appropriate. That would not be discriminating against a customer with celiac disease because the gluten-free meals are offered to all customers at the same price.”

Whyte noted a lack of guidance as to whether celiac disease is a disability protected under the Americans with Disabilities Act. Legal Newsline asked the Department of Justice that question in December.

A 2012 settlement on behalf of students with celiac disease at Lesley University did not set a legal precedent, a spokesperson said.

“The Lesley University settlement enforces the rights of students whose food allergies were disabilities,” Patrick Rodenbush said. “It doesn’t necessarily make celiac disease a disability in all cases.”

After Whyte denied the motion to dismiss, the case proceeded to an early neutral evaluation proceeding.

Orshansky and Kachadoorian did not respond to an email seeking comment. They seek to dismiss the case with prejudice as it pertains to Phillips, but without prejudice as to any potential class.

In a 2015 Legal Newsline article, the CEO of the Celiac Disease Foundation did not seem to agree with the claims made in Phillips’ complaint.

“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 original motion to dismiss.

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

The company claimed Phillips failed to allege she was disabled since her condition constitutes only a minimal limitation on what she can eat.

“She can still consume all gluten-free foods. No authority supports Plaintiff’s baseless position that she is disabled,” the company argued.

Whyte has not yet granted the plaintiff's motion to dismiss.

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

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