CHICAGO (Legal Newsline) – The plaintiff in a disability discrimination lawsuit against Kohl’s Corp. is fighting the company's effort to dismiss it.
Sheila Fisher, as the guardian of Devora Fisher, stated in a Feb. 23 memorandum filed in the U.S. District Court for the Northern District of Illinois, Eastern Division that the motion from Kohl's “grossly distorts the principle of res judicata.”
The memo notes that Kohl’s is seeking to dismiss Devora Fisher’s claims after previously arguing that The Equal Rights Center v. Kohl’s Department Stores Inc. case should be dismissed to allow individual plaintiffs’ cases to proceed.
“The ERC Action was voluntarily dismissed to allow its members’ actions to proceed more efficiently,” the memo said. “It would be unfair and illogical to now punish the individual plaintiffs for the ERC’s good faith decision aimed at promoting judicial economy.”
The ERC sued Kohl’s in October 2014 over alleged violations of the Americans with Disabilities Act (ADA), claiming the store’s layout doesn’t conform with standards laid out in the law. Others named as plaintiffs in the filing are Devora Fisher, Edith Prentiss, Jean Ryan, Monica Kamal and Regina Lee.
According to the original 2014 suit, the ERC brought the action against Kohl’s after responding to member complaints about stores in California, Georgia, Illinois, Iowa, Maryland, Minnesota, Montana, New Jersey, New York, Ohio and Wyoming. The ERC sent two letters to company officials in 2012 and 2013 about the alleged violations and received no response. Devora Fisher sent a letter to the company about barriers she allegedly faced at stores in Arlington Heights, Glenview, Niles and Vernon Hills, Illinois.
The suit notes Devora Fisher, an artist born with scoliosis and other congenital birth defects, uses a wheelchair. Sheila Fisher brought the problems at the stores to the attention of managers multiple times, but they remain unsolved, according to the complaint.
In December 2015, two additional ERC members, Eugene Kelly and Patricia Thomas, joined the case as plaintiffs.
In 2016, the plaintiffs “sought class certification on the behalf persons who were denied access to Kohl’s goods and services on the basis of disability due to the existence of aisles that were too narrow for wheelchairs to pass through,” according to the memorandum.
In May 2017, the court denied the plaintiff’s motion for class certification. In August 2017, the court entered an order severing each of the plaintiff’s claims.
In a Feb. 2 memorandum in support of a motion for judgment, Kohl's asked the court to "enter judgment on the pleadings for the defendants and dismiss" the suit with prejudice. The company argued that Fisher's claim is barred by res judicata, a doctrine that blocks a second lawsuit if the suits involve three elements it claims have been satisfied.
Kohl's identified those elements as being the final judgment on the merits in the ERC suit; claims based on the same factual allegations in both suits; and the same parties.
The plaintiffs are seeking injunctive relief.