J.D., by his father and next friend, Brian Doherty, Plaintiff - Appellant,
COLONIAL WILLIAMSBURG FOUNDATION, Defendant-Appellee. NATIONAL DISABILITY RIGHTS NETWORK; DISABILITY LAW CENTER FOR VIRGINIA; SCOTT HAYES; VIRGINIA FOOD ALLERGY ADVOCATES, Amici Supporting Appellant.
Argued: January 29, 2019
from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:17-cv-00101-RBS-RJK)
Caroline Vargas, STEIN & VARGAS, LLP, Washington, D.C.,
Lewis Rust, MCGUIREWOODS LLP, Richmond, Virginia, for
W. McFarland, E. Rebecca Gantt, Norfolk, Virginia, Micah B.
Schwartz, MCGUIREWOODS LLP, Richmond, Virginia, for Appellee.
M. Chilton, Steven M. Traubert, Zachary S. DeVore, DISABILITY
LAW CENTER OF VIRGINIA, Richmond, Virginia, for Amici
Disability Law Center of Virginia and National Disability
Rights Network. Ellen M. Saideman, LAW OFFICE OF ELLEN
SAIDEMAN, Barrington, Rhode Island; Theodore R. Debonis,
Karen C. Baswell, Farrell A. Brody, Lidia H. Rezende,
CHAFFETZ LINDSEY LLP, New York, New York, for Amici Scott
Hayes and Virginia Food Allergy Advocates.
WILKINSON, DIAZ, and FLOYD, Circuit Judges.
a child on a strict gluten-free diet. In keeping with this
diet, he attempted to bring a homemade, gluten-free meal into
a restaurant while on a school field trip to Colonial
Williamsburg. The restaurant refused to let him do so and
offered instead to prepare him a gluten-free meal. But J.D.
declined because he didn't trust the restaurant to safely
prepare the meal to his specific needs. Ultimately, J.D.
chose to eat his homemade meal outside and apart from the
rest of his classmates.
these events, J.D., by his father and next friend, sued the
Colonial Williamsburg Foundation (which owns and operates the
restaurant) for violating the Americans with Disability Act,
the Rehabilitation Act, and the Virginians with Disabilities
Act. J.D. alleged that he is a person with a disability, and
that Colonial Williamsburg discriminated against him by
excluding him from the restaurant and by refusing to modify
its policy against outside food. The district court granted
summary judgment to Colonial Williamsburg. For the reasons
that follow, we vacate and remand for further proceedings.
an 11-year-old boy who suffers from several health
problems. J.D. experiences a host of symptoms when
he ingests gluten, including significant constipation,
abdominal pain, foot pain and numbness, cognitive impairment,
elevated liver enzymes, and temporary loss of consciousness.
According to J.D.'s primary physician, J.D.'s family
history is positive for either celiac disease or non-celiac
disease is an autoimmune disorder where the ingestion of
gluten, even in trace amounts, causes damage to the small
intestine. Symptoms include fatigue, abdominal pain,
constipation, and cognitive impairment. Untreated, celiac
disease can lead to additional serious health problems,
including intestinal cancer, short stature, liver disease,
and nervous system disorders such as seizures and migraines.
Non-celiac gluten sensitivity is a disorder with similar
only medically accepted treatment for celiac disease or
non-celiac gluten sensitivity is a strictly gluten-free diet.
J.D.'s physician expressed his medical opinion that
"a gluten free diet is medically necessary for
J.D." J.A. 165. And J.D.'s parents testified that
his health significantly improved once on a strictly
when J.D. "accidentally ingests gluten, even in trace
amounts, his symptoms come crashing back." J.A. 111.
According to his parents, J.D. has had adverse reactions when
eating out at several restaurants. For example, during a
family visit to Disney World, J.D.'s parents spoke with a
restaurant manager, who went through an "exhaustive list
of the protocols" that would be used to ensure a
gluten-free meal. Id. at 289. J.D. ate a gluten-free
pizza that came out on a different colored tray, with allergy
stickers on it, and was carried by the manager. A few days
later, J.D. experienced symptoms consistent with having
ingested gluten. His family later learned that J.D. had in
fact been served a wheat crust, not a gluten-free one.
other occasions, J.D. and his family frequented a restaurant
that represented it could prepare gluten-free meals. J.D.
would order gluten-free items from the menu, but after each
visit, his family noticed that J.D. wasn't feeling well
and showed signs of having ingested gluten. They didn't
suspect the restaurant, however, because they had been
assured of the gluten-free protocols in place. But on their
last visit to the restaurant, they noticed a regular noodle
in the purportedly gluten-free pasta.
these and other incidents, J.D.'s parents resolved to
provide medically safe food to J.D. To that end, they
regularly prepare his food and pack separate tableware to
ensure that he can participate in school parties,
celebrations, and meals to the greatest extent possible.
Although there are some restaurants that his parents still
trust, in general, they no longer eat out as a family due to
the risk of gluten exposure.
case has its genesis in a school field trip. On May 11, 2017,
J.D. and his classmates, accompanied by teachers and parent
chaperones (including J.D.'s father) traveled to Colonial
Williamsburg. Colonial Williamsburg bills itself as a
"living-history museum" consisting of original and
reconstructed buildings from the 18th century. The historic
area includes Shields Tavern, a restaurant owned and operated
by the Colonial Williamsburg Foundation, which offers guests
a traditional, 18th-century experience with costumed actors
and musicians. The itinerary for the trip included dinner at
Tavern has a policy against allowing outside food into its
restaurant. This policy is subject to two general exceptions:
(1) parents may bring baby food or snacks for infants and
toddlers, and (2) patrons may bring cakes and wine for events
subject to a plating and corkage fee. Shields Tavern also
appears to allow outside food at the discretion of the
before the trip, J.D.'s father informed the school that
he and J.D. wouldn't be eating at any of the restaurants
but would instead bring their own food. Nothing in the record
indicates that this message was relayed to Shields Tavern. On
the contrary, an invoice from Colonial Williamsburg shows
that the school placed an order for two gluten-free meals at
Shields Tavern. The parties dispute whether these meals were
intended for J.D. and his father.
J.D. and his father arrived at Shields Tavern, they sat down
at a two-person table. J.D's father informed a waitress
not to bring out any food for them. He then unpacked a cooler
filled with plates, cups, and utensils, and began making a
gluten-free chicken sandwich. Another waitress told
J.D.'s father that he couldn't bring in outside food
because it was a health code violation. J.D.'s father
asked to speak to the manager, who confirmed the policy, and
insisted that they would have to eat their food outside. The
head chef soon arrived and offered to prepare a gluten-free
meal for J.D.
point, J.D. and his father were left with three options: hope
for the best and accept the restaurant's offer of a
gluten-free meal, stay inside and not eat, or eat the
prepared meal outside. As J.D. began to cry, his father
packed up the prepared meal and followed a server outside to
the picnic tables behind Shields Tavern. J.D. and his father
ate outside for 20 or 30 minutes before returning to the
by his father and next friend, filed suit against the
Colonial Williamsburg Foundation alleging violations of
Section 504 of the Rehabilitation Act, Title III of the
Americans with Disabilities Act ("ADA"), and the
Virginians with Disabilities Act. He alleges that Colonial
Williamsburg discriminated against him by excluding him from
Shields Tavern and by failing to modify its policy against
discovery, Colonial Williamsburg moved for summary judgment.
The district court referred the motion to a magistrate judge,
who recommended granting it. The magistrate judge found that
there was a genuine dispute of material fact as to whether
J.D. is disabled within the meaning of the ADA. But the judge
ultimately recommended granting summary judgment because J.D.
didn't meet his burden to show that he was discriminated
against because of his disability.
district court adopted the magistrate judge's
recommendation and granted summary judgment to Colonial
Williamsburg. The court also awarded costs to Colonial
Williamsburg as the prevailing party. This appeal followed.
review de novo a district court's summary judgment
order." Reyazuddin v. Montgomery County, 789
F.3d 407, 413 (4th Cir. 2015). In doing so, we apply the same
legal standards as the district court, viewing all facts and
drawing all reasonable inferences "in the light most
favorable to the non-moving party." Dulaney,
673 F.3d at 330. We do not weigh conflicting evidence or make
credibility determinations. Reyazuddin, 789 F.3d at
413. If there are genuine issues of material fact that can
only be resolved by a fact-finder, then the motion for
summary judgment must be denied. Id. "A genuine
question of material fact exists where, after reviewing the
record as a whole, a court finds that a reasonable jury could
return a verdict for the nonmoving party."
Dulaney, 673 F.3d at 330.
case, we view the evidence under the legal standards set
forth in the ADA.Congress enacted the ADA "to remedy
widespread discrimination against disabled individuals,"
PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001),
and to "provide clear, strong, consistent, enforceable
standards" addressing that discrimination. 42 U.S.C.
§ 12101(b)(2). Title III of the ADA provides that
"[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation." 42
U.S.C. § 12182(a).
prevail under Title III of the ADA, a plaintiff must show
that: (1) he is disabled within the meaning of the ADA; (2)
the defendant owns, leases, or operates a place of public
accommodation; and (3) the defendant discriminated against
him because of his disability. See Ariz. ex rel. Goddard
v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670
(9th Cir. 2010); Camarillo v. Carrols Corp., 518
F.3d 153, 156 (2d Cir. 2008); see also Nat'l