Case 3:17-cv-01896 Document 1 Filed 11/11/17 Page 1 of 8

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

MARGIE KUEHN,

Plaintiff, Case No.

v. JURY TRIAL DEMANDED

J.C. PENNEY COMPANY, INC.,

Defendant.

COMPLAINT

Plaintiff, MARGIE KUEHN (Plaintiff), by her undersigned counsel, files this

Complaint against defendant J.C. Penney Company, Inc. (JCP) for injunctive relief, attorneys

fees and costs pursuant to 42 U.S.C. 12181 et. seq. (ADA), as well as for monetary and

punitive damages for negligence and intentional infliction of emotional distress, and in support

thereof avers as follows:

JURISDICTION AND PARTIES

1. This is an action for declaratory and injunctive relief pursuant to Title III of the

Americans with Disabilities Act. This Court is vested with original jurisdiction pursuant to 28

U.S.C. 1331 and 1343.

2. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b).

3. Plaintiff is a resident of Milford, Connecticut.

4. Plaintiff is a qualified individual with a disability under the ADA. Plaintiff

suffers from multiple sclerosis and is wheelchair-bound.

5. Due to her disability, Plaintiff is substantially impaired in several major life

activities and requires a wheelchair for mobility.

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6. Defendant, JCP, is a Delaware Corporation. Upon information and belief, JCP is

the owner, lessee and/or operator of JCPenney Salon, Westfield Trumbull, 5065 Main Street,

Trumbull, CT 06611 (the Property). The Property is a place of public accommodation as

defined by the ADA.

7. All events giving rise to this lawsuit occurred in the District of Connecticut,

Fairfield County, Connecticut.

RELEVANT FACTS

8. Plaintiff visited the Property on or about August 17, 2017, to have her hair

washed and blow-dried. During this visit, JCP notified Plaintiff that because of her disability,

Plaintiff could no longer have her hair washed at the Property.

9. Shortly after arriving at the Property, Plaintiff was tilted back in her wheelchair

and had her hair washed. After Plaintiffs hair was washed, but while her wheelchair was still

tiled back, the salons manager, Daniel, came to where Plaintiff was located. Daniel, who was

agitated and hostile with Plaintiff, told Plaintiff that her nurse, referring to Plaintiffs caretaker,

who is not a nurse, would have to lift her into a normal shampoo chair. Daniel then told

Plaintiff twice that Plaintiffs hair could be washed normally. Daniel then asked Plaintiffs

caretaker, if Plaintiff who is not mentally disabled could understand what he was saying.

10. At this point Plaintiffs wheelchair was finally returned to the sitting position, and

Daniel, who remained angered, proceeded to tell Plaintiff that she could not remain in her

wheelchair to get her hair washed because the sink, which is supposedly wheelchair accessible,

always broke after Plaintiff had her hair washed in it.

11. After Plaintiff left the Property, Daniel approached her as she was waiting alone

to be placed in her van. During this exchange Daniel stated three ways he would permit Plaintiff

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to continue to use the salon (i) he and another strong male would lift her into a normal chair

on the condition that Plaintiff would agree to not sue them for any harm they caused to her, (ii)

Plaintiff could wash her hair at home and then come to the Property to have it dried, and (iii) he

would send Plaintiffs hair stylist to her home for double the usually cost nearly $100. All

three of Daniels options were unfeasible and upsetting to Plaintiff who struggles with her

disability every moment of her life.

12. Plaintiff has been distraught since the events at the Property on or about August

17, 2017, and breaks into tears when she thinks about how she was treated at the Property.

COUNT I - VIOLATION OF TITLE III OF THE

AMERICANS WITH DISABILITIES ACT

13. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

14. Title III of the Americans with Disabilities Act prohibits discrimination on the

basis of disability by owners, operators, lessees, and lessors of places of public accommodation.

42 U.S.C. 12182(a).

15. Plaintiff is a qualified induvial with disabilities with the meaning of Title III of

the ADA.

16. The Property, a salon and retail store, is a place of public accommodation subject

to the ADA.

17. Title III prohibits public accommodations from excluding, on the basis of

disability, individuals with disabilities from participating in or benefiting from the goods,

services, facilities, privileges, advantages, or accommodations of public accommodations or

otherwise discriminating against a person on the basis of disability. 42 U.S.C.

12182(b)(1)(A)(i); 28 C.F.R. 36.202(a).

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18. By failing to adopt policies and practices that will prevent or reduce

discrimination against wheelchair-bound individuals at its salons, JCP violates Title III of the

ADA by excluding Plaintiff on the basis of disability from enjoying the services, privileges,

advantages, or accommodations of its salons.

19. Under Title III, it is also unlawful for places of public accommodation to afford,

on the basis of disability, an individual or class of individuals with disabilities with an

opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or

accommodation that is not equal to that afforded other individuals. 42 U.S.C.

12182(b)(1)(A)(ii); 28 C.F.R. 36.202(b).

20. Defendant violates Title III of the ADA by providing wheelchair-bound

individuals, including Plaintiff, an opportunity to participate in or benefit from the services,

privileges, advantages, or accommodations of its salons that is not equal to that afforded other

individuals. 42 U.S.C. 12182(b)(1)(A)(ii); 28 C.F.R. 36.202(b).

21. Title III further prohibits places of public accommodation from providing, on the

basis of disability, an individual or class of individuals with a good, service, facility, privilege,

advantage, or accommodation that is different or separate from that provided to other

individuals. 42 U.S.C. 12182(b)(1)(A)(iii); 28 C.F.R. 36.202(c).

22. By operating a salon that unlawfully discriminates against and refuses services to

wheelchair-bound individuals, Defendant violates Title III of the ADA because it provides

Plaintiff, on the basis of disability, with services, privileges, advantages, and accommodations of

its salons that are different or separate from that provided to other individuals. 42 U.S.C.

12182(b)(1)(A)(iii); 28 C.F.R. 36.202(c).

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23. It is a violation of Title III for public accommodations to fail to make reasonable

modifications in policies, practices, or procedures when such modifications are necessary to

afford such goods, services, facilities, privileges, advantages, or accommodations to individuals

with disabilities, unless the entity can demonstrate that making such modifications would

fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or

accommodations. 42 U.S.C. 12182(b)(2)(A)(ii); 28 C.F.R. 36.302(a).

24. By failing to modify practices, policies, and procedures to ensure that its agents

are properly trained and do not refuse services to wheelchair-bound individuals, Defendant is

denying Plaintiffs full and equal access to its salon services.

25. Defendant is, alternatively, in violation of 42 U.S.C. 12181 et. seq. and 28

C.F.R. 36.302 et. seq. and is discriminating against the Plaintiff due to Defendants failure to

provide and/or correct, inter alia, the following architectural barrier which Plaintiff personally

encountered and which hindered her access to the Property a hair washing sink, which she was

told was inaccessible by Daniel. Removal of the barriers to access located on the Property is

readily achievable, reasonably feasible and easily accomplishable without placing an undue

burden on JCP.

26. The actions of Defendant were and are in violation of the ADA and regulations

promulgated thereunder. Defendant has failed to take any equitable steps to remedy its

discriminatory conduct, and Defendants violations of the ADA are ongoing. Defendants

unlawful actions deter Plaintiff from attempting to access JCPs salon services. Unless the Court

enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff will continue

to suffer irreparable harm.

27. Plaintiff is entitled to injunctive relief. 42 U.S.C. 12188.

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28. Plaintiff has been obligated to retain the undersigned counsel for the filing and

prosecution of this action. Plaintiff is entitled to have his reasonable attorneys fees, costs, and

expenses paid by JCP pursuant to 42 U.S.C. 12205.

COUNT II - NEGLIGENCE

29. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

30. JCP had a duty to hire and train their employees to avoid employees that

discriminate based upon a disability.

31. JCP did not train their employees properly in the way to deal with the subject

matter of disability.

32. That the carelessness of JCP concluded with the negligent hiring of employees

that were insensitive toward peoples disabilities.

33. That as a result of the negligence, carelessness, recklessness and blatant disregard

of JCP, Plaintiff was damaged in an amount to be determined at trial.

COUNT III INTENTIONAL INFLICTION

OF EMOTIONAL DISTRESS

34. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

35. As a result of the actions of its agents, servants, and/or employees, JCP is

responsible via the legal principles of a vicarious liability and respondeat superior.

36. Daniel was acting within the scope of his employment when he committed the

above-described misconduct.

37. Daniel intended or knew that his conduct would likely cause the Plaintiff to suffer

emotional distress.

38. Daniels conduct was extreme or outrageous.

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39. Daniels conduct caused Plaintiffs distress, and she suffered physically and

mentally as a result of it.

40. By reason of the foregoing, Plaintiff has been damaged in an amount to be

determined at trial.

COUNT IV PUNITIVE DAMAGES

41. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

42. The actions of JCP and its agents, servants, and/or employees as alleged above,

were malicious, willful, and grossly negligent.

43. JCP authorized, permitted, and ratified the unlawful and grossly negligent acts of

its agents, servants and/or employees, including, but not limited to Daniel.

44. Daniels actions were intentional, reckless, and grossly negligent and warrant an

assessment of punitive damages.

45. By the reason of the foregoing, Plaintiff is entitled to punitive damages in an

amount that to be determined upon the trial.

WHEREFORE, Plaintiff respectfully requests:

A. A declaration that JCP is/was in violation of the ADA;

B. Injunctive relief against JCP including an Order:

i. requiring JCP to make reasonable modifications in policies, practices or

procedures as are necessary to afford all offered goods, services, facilities, privileges,

advantages or accommodations to individuals with disabilities;

ii. requiring JCP to make all readily achievable alterations to the Property

and to the facility operated thereon so that the Property and such facility are made

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readily accessible to and usable by individuals with disabilities to the extent required

by the ADA;

iii. requiring JCP to take such steps as are necessary to ensure that no

individual with a disability is excluded, denied services, segregated or otherwise

treated differently than other individuals; and

iv. prohibiting JCP from perpetuating any acts and practices which result in

the exclusion, denial of service to or discretionary treatment of individuals with

disabilities.

C. An award of attorneys fees, costs, and litigation expenses pursuant to 42 U.S.C.

12205.

D. An award of compensatory damages in an amount to be determined at trial;

E. An award of punitive damages in an amount to be determined at trial;

F. An award of pre and post-judgment interest at the maximum legal rate; and

G. Such other relief as the Court deems just and proper.

JURY DEMAND

Plaintiff demands a trial by jury.

Respectfully submitted,
PLAINTIFF,

By: _s/Fletcher Moore___________

Fletcher Moore
Moore Kuehn PLLC
30 Wall Street, 8th Floor
New York, NY 10005
Tel: (212) 709-8245
E: fmoore@moorekuehn.com

Attorneys for Plaintiff