13 06 2008

Suit by Disabled Activist Who Alleged Retaliation May Proceed—C.A.

Metropolitan News-Enterprise

June 12, 2008

by Steven M. Ellis, Staff Writer

http://www.metnews.com/articles/2008/wils061208.htm

A self-described disabled rights activist can proceed with his claim that a restaurant owner violated his civil rights when she allegedly tried to throw him out after his previous visits caused her to spend over $130,000 eliminating accessibility problems, the First District Court of Appeal ruled yesterday.

Ruling that Ron Wilson had presented sufficient evidence to raise a triable issue of fact whether Frances Murillo violated his rights under California’s Unruh Civil Rights Act and its Disabled Persons Act when she told him he was not welcome and accused him of harassment, Div. Four reversed the trial court’s ruling that Murillo’s actions against Wilson—who remained at the restaurant and finished his drink with a companion before leaving—were too trivial to be recognizable as an “adverse action.”

The incident occurred when Wilson and a companion went to Murillo’s Vacaville restaurant for lunch in March of 2005.

Wilson, a disabled person who primarily relies on a wheelchair for mobility, had visited the restaurant over several years and—although not a regular customer—had sent letters to Murillo after each visit identifying accessibility problems that he encountered. Murillo responded to each, ultimately making a number of modifications to comply with all federal and state disability access regulations.

Wilson and his companion arrived at the restaurant and stopped for a drink in the bar before asking for a table. The bartender brought them their drinks, chips and salsa, and two menus, but a few minutes later Murillo walked up and asked them to leave.

Wilson said that Murillo held up a sign saying that the restaurant reserved the right to refuse service to anyone, and that—after the two men remained at the bar eating and drinking—the bartender eventually removed the food and tried to remove Wilson’s drink.

He also alleged that he and his companion were confronted by a man they believed to be an employee who began photographing them, and telling Wilson sarcastically to “smile for the camera.”

When Wilson and his companion left, he said, the man who had taken the photographs came out of the restaurant with a waitress who began to taunt them and take pictures in a similar manner while the man made offensive gestures with his middle finger.

Wilson brought suit against Murillo, alleging that she violated the Americans with Disabilities Act of 1990—which is incorporated into state law—by retaliating against him for exercising his rights, and by interfering with the exercise of his rights.

Murillo, who conceded that she had “words” with Wilson, moved for summary judgment, arguing that the acts alleged by Wilson were too trivial to state a prima facie case of retaliation given the fact that he remained at the bar and ultimately left of his own free will.

The trial court—opining that “in context, all that is alleged is a mildly unpleasant incident, not rising to the level of necessary conduct or recovery” under either theory—agreed and granted summary judgment.

However, on appeal, Presiding Justice Ignazio J. Ruvolo wrote that Wilson’s claims, if true, were sufficient to allow a factfinder to conclude that he had been subjected to an “adverse action.”

Concluding that Wilson had raised a question both as to his subjective belief that Murillo had acted materially adversely towards him and as the objective reasonability of that belief, and that he had also raised a question whether Murillo’s actions had gone “beyond legitimate bounds,” Ruvolo reversed the trial court’s judgment.

He wrote:

“As set out by Wilson, ‘[b]eing told you are not welcome[,]…being asked to leave the premises, having food taken away while you are eating, having a sign held in front of your face which says that the owner has the right to refuse service to you, being subjected to harassment and ridicule by employees and/or other patrons of an establishment, and having the police summoned to escort you from the business, are definitely not actions which often take place at a restaurant …’ Moreover, Murillo essentially admitted in her deposition testimony that her decision to eject Wilson and his companion from the restaurant was motivated by Wilson’s earlier ADA complaint, providing substantial factual support for Wilson’s retaliation claim….

“[T]he trial court was presented with a triable issue of material fact…that precluded granting summary judgment.”

Ruvolo further noted that his conclusion was bolstered by a manual about the ADA published by the U.S. Department of Justice which stated that “[a] restaurant may not refuse to serve a customer because he or she has filed an ADA complaint against the restaurant or against another public accommodation.”

Justices Timothy A. Reardon and Patricia K. Sepulveda joined Ruvolo in his opinion.

The case is Wilson v. Murillo, 08 S.O.S. 3431.

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