Lucas v. Kmart
Colorado native Carrie Ann
Lucas challenged a retail giant in a ground-breaking disabilities
access case and won.
From her vantage point
as lawyer, activist, advocate, parent of three and wheelchair occupant,
Carrie Ann Lucas knows that progress in disability rights is measured
painstakingly: For every faltering step forward, there’s
a setback. For every great leap, another chasm materializes.
The equation may be cursed by minuses, but as Lucas sees it, the positives
are beginning to add up.
She herself can take
some of the credit. In summer 2006, a disability-access suit that
she had launched against Kmart in 1999 was settled for $13 million,
plus $3.25 million in attorneys’ fees. That makes it
the largest settlement ever in a disability-access case, a sit-up-and-take-notice
precedent for the nation’s retailers.
As the lead plaintiff
in the class action suit, Lucas considers the victory-and the years
of toil that produced it-another chapter in a story of personal
indignation against injustice. “I was always
a rabble rouser,” she explains. “I remember being in
third or fourth grade and they had a limit that kids could only have
five books from the library. I got them to change that policy.”
It’s a hot afternoon
in late July, a special day for Lucas. “It’s
the 17th anniversary of the Americans with Disabilities Act,” she
points out. She’s in her office at the Denver-based Colorado
Cross-Disability Coalition, where she is director of the Center for
Rights of Parents with Disabilities. In this position, Lucas helps
parents with disabilities resolve child custody issues, tackle housing
discrimination and gain access to social services. “We’re
really the only place in the country with a program that specializes
in parents with disabilities,” she says. The 36-year-old Lucas
channels the bulk of her energy and passion into the center, after
all, she can identify with her clients. She’s both a parent
and a citizen with disabilities. She’s fought the battles her
clients face-with her disability, with the system, with public perception.
Because she has central
core myopathy, a muscle wasting disease, Lucas uses a wheelchair.
In addition, her vision and hearing are severely impaired, and
she breathes with the assistance of a ventilator. Over the years,
she has developed a serious allergy to many antibiotics, meaning
that a simple infection can bring on a host of complications. “I
hit some bizarre genetic jackpot,” she says, summing up the
source of her challenges.
None of this keeps her
from dashing around the office at mach speed, piloting her wheelchair
with NASCAR flair. In, out, back, forth, zip, zoom. Nor does it
keep her from taking her three adopted daughters-17-year-old Heather,
12-year-old Asiza and 8-year-old Adrianne, each one of them a child
with disabilities-on weekend camping trips. And it certainly doesn’t
keep her from crossing the state for court dates on behalf of clients.
“I drove to Pueblo to go to a hearing last week,” she
says matter-of-factly, no hint of exasperation in her voice, “only
to discover the elevator was broken and there was no sign-language
interpreter. So I drove four hours for nothing.”
Not quite for nothing.
Lucas knows from experience that justice is full of stays and delays-some
of them judge ordered, others, like the elevator failure, the result
of benign negligence or bureaucratic bungling. In the face of lady
justice’s slow and deliberate
habits, patience is too often required.
But Lucas isn’t
a patient person. Or so she says. She does, however, possess something
just as effective: persistence.
Just ask the home of the blue light special. Just follow the miles-long
document trail in Lucas v. Kmart.
The suit grew out of
Lucas’ longtime patronage of Denver-area
Kmart stores. Visit after visit, she found herself increasingly frustrated
by the stores’ careless disregard for accommodation issues: a
shortage of accessible parking spaces; dressing
“Visit after visit, she
found herself increasingly frustrated by the stores’ careless
disregard for accommodation issues. . . .”
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rooms rendered inaccessible
by piles of merchandise; aisles consistently blocked by crates and
boxes. Perhaps most frustrating, she recalls, “I would go to
check out and the accessibility lane would be closed. And I couldn’t
check out because all of the other aisles were inaccessible. So I
would put things down and leave.”
Just as often, she took
the time to complain. “I would ask for
the manager on duty, and I would be assured that the problem would
be fixed by the time I came back again,” she says. “But
they were just telling me they would fix it to get me to go away.”
Eventually, Lucas filed
a claim with the Department of Justice, hoping to mediate a resolution
to the ongoing problem. “I had done mediation
with some smaller outfits, where they didn’t have a ramp, and
had been successful,” she says. Surely, she thought, a complaint
filed with a federal agency would capture Kmart’s attention. “But
Kmart refused to mediate because they said they had already fixed
everything.”
That’s when she took
the case to Denver-based Fox and Robertson, a law firm specializing
in civil rights cases and headed by the husband-and-wife team of
Tim Fox and Amy Robertson. At the same time, she approached the
Colorado Cross-Disability Coalition’s Kevin Williams, who
teamed with Fox and Roberson as co-counsel.
At first perusal, Robertson thought the case was simple and routine:
One plaintiff of sound mind and good will takes on a respectable retailer
to address obvious-and seemingly indisputable-violations of federal
requirements, specifically those outlined in Title III of the ADA,
which pertains to private entities open to the public.
The case quickly became
downright complex and trailblazing. “We
initially filed with just Carrie,” Robertson says, “and
then we started to hear from people in other parts of the country.
Once we had these anecdotes, we sent out queries: Had anyone else
had similar issues?”
The stories began to pile up, tales of frustration from throughout
Colorado and across the nation. One Virginia man told of the humiliation
he experienced when his wheelchair knocked over a tower of snack foods.
A California woman described how her wheelchair got stuck in one narrow
aisle, forcing her to yell for help. Still another California customer
told how she could never access the clothing aisles and had to shout
out requests for styles, sizes and colors to a sales associate.
With similar stories
from 27 states, Lucas and her attorneys decided to file for class
action status, if only to ensure that Kmart couldn’t
dismiss the grievances as isolated problems indicative of nothing more
than an individual store’s negligence.
“Especially in cases like this, [a class action suit] was very
desirable because then you can get access to policies and practices
chain-wide,” Robertson says. “The biggest effect of the
class was to get at the whole chain.”
That was Lucas’ goal as well. She didn’t want to see all
the Denver stores brought into compliance with the ADA, only to venture
into a Grand Junction outlet and encounter the same old problems. “If
we’re going to go to all of the trouble of filing a lawsuit,
we’re going to fix the problem,” she remembers thinking.
The case proceeded,
with contentious hearings and motions and petitions and even attempts
to undermine the plaintiffs’ credibility. “Carrie
was just the most fantastic client,” Robertson says, noting that
Lucas’ photographic recall of every Kmart visit just made her
case stronger. “They took her deposition for three days, about
shopping at Kmart. Please.”
In fact, Kmart’s aggressive defense struck Lucas and her attorneys
as surprisingly strident. “We were very, very puzzled at how
hard they fought ... they just fought tooth and nail,” Robertson
says. “They had the opportunity to go to Carrie and say, let’s
resolve this. But initially, the attitude was, just go away.”
And then, in January 2002, Kmart filed for Chapter 11 bankruptcy,
which meant that all litigation was subject to a stay. Since the Lucas
suit sought only injunctive relief-in other words, it asked the court
to order Kmart to comply with the law-Robertson tried to pursue the
case, thinking that Kmart could still bring its stores into compliance
with ADA standards. After all, relief meant nothing more elaborate
than reconfiguring parking spaces, providing suitable fitting rooms
and restrooms, adjusting aisles, removing boxes and keeping the accessible
checkout lane open.
Robertson’s efforts
proved futile, and Lucas v. Kmart was put on a back shelf.
For Lucas, the bankruptcy
filing represented a dispiriting development, not just because
the case might fail to make a tangible difference in the disabled
population’s shopping experiences. By this time,
Fox and Robertson had spent three years pursuing the costly case. “I
knew how much this little firm had in it,” Lucas says. With
Kmart’s
future in question, she was afraid that Fox and Robertson might
lose everything.
When Kmart—which could not be reached for comment for this article—emerged
from bankruptcy in 2003, its new management and legal team took a fresh
look at the ADA case. Suddenly, Lucas recalls, “they were ready
to roll up their sleeves and go to work.”
There was plenty of work to do. The two sides had to reach agreement
on just what an accessible and ADA-compliant Kmart would look like.
To that end, the plaintiffs and defendants worked together to revise
store policies, improve employee training and refine store layout.
Lucas herself went on-site at Denver-area Kmart stores, wheeling through
the clothing sections to show store designers just how a shopper with
disabilities negotiates aisles and fitting rooms.
Just as important, Kmart agreed to implement an innovative online
feedback mechanism, allowing customers with disabilities to report
on their shopping experiences. This way, Kmart is able to address emerging
access and accommodation issues immediately and across the chain.
With that work underway, the two parties also had to arrive at a settlement.
Although Title III of the ADA makes no provision for damages, several
of the plaintiffs came from states that do. Colorado allows for nominal
damages, while California calls for up to $4,000 per incident. By the
time the lawyers were negotiating the settlement, Robertson says, Kmart
wanted to expand the class action pool to ensure that no additional
suits would follow and that it would be responsible for a one-time
payment. Ultimately, the corporation agreed to pay $8 million in cash
and $5 million in gift cards, with $10,000 going to each of the three
main plaintiffs, Lucas included.
“I have to give a lot of credit to Kmart’s managers and
attorneys post-bankruptcy,” Robertson says. “They didn’t
cave, but it was clear that their goal was to make things right.”
Looking back, Robertson
sees the Lucas case as a textbook example of how to effect change
in a national chain. “In many ways, we
were plowing new ground. There had never been a contested class action
[of a Title III ADA case] of this size,” she says, noting that
the years-long struggle was always civil, even in the midst of “scorched-earth” litigation.
Lucas, who earned her
law degree at the University of Denver while the case played out,
takes pride in the way it was pursued, in its unrelenting focus
on improving life for Kmart’s disabled customer
base. She points to a
“ Looking back, Robertson
sees the Lucas case as a textbook example of how to effect
change in a national chain.”
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courtroom statement by Senior
U.S. District Court Judge John Kane, delivered during the case’s final fairness hearing
and posted on the Colorado Cross-Disability Coalition’s Web site: “It
is very difficult to find justice, but you develop a gestalt when
justice has been achieved, and I think that happened in this case.
... I would say any lawyer ... should examine this file to see how
a class action should be handled. The rights and obligations of all
the parties have been represented, and this has not taken on the
aspects of a barroom brawl.”
So just what has justice delivered-however languorously?
Laura Rovner, an assistant professor at the Sturm College of Law and
an expert in disability rights, notes that Lucas v. Kmart sends a compelling
message: Title III of the ADA has to be taken seriously. Failure to
do so may prove costly.
“I think this was a huge wake up call,” Rovner says, noting
that the settlement tells retailers-many of whom have felt sheltered
by Title III’s failure to provide for damages-that attorneys
can and will pursue these cases vigilantly. “There are not a
ton of lawyers who take on these kinds of cases because there are no
damages,” she explains. But Lucas v. Kmart shows an alternate
path that relies on class action status and parallel legislation in
the states to arrive at damages and achieve relief. “Seeing one
[case] go the distance and get the kind of comprehensive relief that
was awarded in this case may get retailers to act proactively,” Rovner
says.
Lucas believes that’s already happening. “At the macro
level,” she says, “we’ve already seen [retailers]
say, let’s not spend money fighting this, let’s just
make the changes.”
At the micro level,
where Lucas invests her emotional capital, the results are just
as gratifying. “People with disabilities generally
are not wealthy. Most of us are poor. We’re buying our kids’ school
clothes at Kmart,” she explains. “People with disabilities
often don’t have the option of traveling across town to a Kmart
that might have a better set-up. They’re stuck with their Kmart.
For these people, it makes a big difference in their day-to-day lives
that they can go buy shampoo and toilet paper.”
And on the purely personal level, the settlement represents an enormous
relief to Lucas and her family. No more hearings, no more depositions,
no more taxations of her overtaxed patience. Perhaps best of all, the
Lucas clan-Heather, Asiza, Adrianne and Carrie Ann-can now visit their
neighborhood Kmart in search of bargains. Just like everyone else.
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Copyright 2007 University of Denver Magazine. Reprinted with permission.
