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J.D. v. Colonial Williamsburg Foundation

United States Court of Appeals, Fourth Circuit

May 31, 2019

J.D., by his father and next friend, Brian Doherty, Plaintiff - Appellant,

          Argued: January 29, 2019

          Appeal 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)


          Mary Caroline Vargas, STEIN & VARGAS, LLP, Washington, D.C., for Appellant.

          Dana Lewis Rust, MCGUIREWOODS LLP, Richmond, Virginia, for Appellee.

         ON BRIEF:

          Robert W. McFarland, E. Rebecca Gantt, Norfolk, Virginia, Micah B. Schwartz, MCGUIREWOODS LLP, Richmond, Virginia, for Appellee.

          Kerry 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.

          Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

          DIAZ, Circuit Judge.

         J.D. is 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.

         After 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.



         J.D. is an 11-year-old boy who suffers from several health problems.[1] 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 gluten sensitivity.

         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 symptoms.

         The 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 gluten-free diet.

         However, 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.

         On 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.

         Following 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.


         This 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 Shields Tavern.

         Shields 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 manager.

         Months 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.[2]

         When 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.[3] 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.[4] 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.[5]

         At this 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 restaurant.


         J.D., 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 outside food.

         Following 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.

         The 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.


         "We 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.

         In this case, we view the evidence under the legal standards set forth in the ADA.[6]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).

         To 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 ...

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