IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

__________________________________________________

NO. 20-1224
__________________________________________________

CHRIS TRAGER,

Appellant,

v.

APPLESFEED.COM,

Appellee
__________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF VERMONT
__________________________________________________

BRIEF FOR APPELLANT

CHRIS TRAGER
__________________________________________________

#313
Pennoyer, Neff, and Associates
246 Mulberry St.
Tuscaloosa, AL 35406
(205) 867-5309
 TABLE OF CONTENTS
Page
Table of Authorities ........................................................................................................... iii

Opinion Below .....................................................................................................................1

Issues Presented ...................................................................................................................1

Statutes Involved ..................................................................................................................1

Jurisdiction ...........................................................................................................................2

Statement of the Case...........................................................................................................2

I. Facts ...................................................................................................................2

II. Procedural History .............................................................................................3

Summary of the Argument...................................................................................................4

Standard of Review ..............................................................................................................6

Argument .............................................................................................................................6

I. This Court should reverse the summary judgment because a “public

accommodation” is any private entity that offers goods and services to the
public, including web-only businesses. ...........................................................6

A. The text and purpose of Title III indicate that “public

accommodation” covers any private entity that offers goods or
services to the public, including a web-only business. ............................7

B. The Department of Justice interpretation and the legislative history of

Title III indicate that “public accommodation” includes any private
entity that offers goods or services to the public. ..................................10

II. This Court should reverse the summary judgment because ApplesFeed
did not provide Trager with “full and equal enjoyment of its goods.” .....13

Conclusion .........................................................................................................................16

Appendix A (Court Order from the United States District Court for the District of
Vermont) ...........................................................................................................................A1

Appendix B (Title III’s Operative Provision, 42 U.S.C. § 12182) ................................... B1

i
Appendix C (Title III’s Definitions Provision, 42 U.S.C. § 12181) ................................. C1

Appendix D (Auxiliary Aids and Services Requirement, 28 C.F.R. § 36.303) ................D1

ii
 TABLE OF AUTHORITIES
Page

United States Supreme Court Cases

Abramski v. United States, 573 U.S. 169 (2014).................................................................8
Maracich v. Spears, 570 U.S. 48 (2013) ..............................................................................8
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) ................................................................10
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) .................................................................8
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ...........................................................10, 11

United States Courts of Appeals Cases

Camarillo v. Carrols Corp., 518 F.3d 153 (2d Cir. 2008) ........................................6, 14, 15
Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37 F.3d 12 (1st
Cir. 1994) .........................................................................................................................7, 9
Conn. Light & Power Co. v. Sec'y of U.S. Dep't of Labor, 85 F.3d 89 (2d Cir. 1996) .......8
Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999)............................................7
Ford v. Shering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) ...............................................7
Iacone v. Cardillo, 208 F.2d 696 (2d Cir. 1953) ................................................................12
Mary Jo C. v. N.Y. State and Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013) .....................10
Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999) .....................................7, 8, 9
Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) ............................................7
Robles v. Domino's Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) ...........................................7
S. New England Tel. Co. v. Comcast Phone of Conn., Inc., 718 F.3d 53 (2d Cir. 2013) .12
Zaretsky v. William Goldberg Diamond Corp., 820 F.3d 513 (2d Cir. 2016) ....................6

United States District Court Cases

Nat'l Fed'n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015).......................7, 9
Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119 (N.D.N.Y. 2000) ..................14, 15, 16
West v. Moe’s Franchisor, LLC, No. 15CV2846, 2015 WL 8484567 (S.D.N.Y. Dec. 9,
2015) ............................................................................................................................13, 15

United States Statutes

28 U.S.C. § 1291 (2018) ......................................................................................................2
28 U.S.C. § 1331 (2018) ......................................................................................................2
42 U.S.C. § 12101(b)(1) (2018) ...........................................................................................9
42 U.S.C. § 12181 (2018) ........................................................................................2, 4, 7, 8
42 U.S.C. § 12182 (2018) .......................................................................................... passim

Regulations and Federal Agency Materials

28 C.F.R. § 36.303(c)(1) (2019) ................................................................................2, 4, 13
Brief of the United States as Amicus Curiae Supporting Appellant, Hooks v.
OKbridge, Inc., 232 F.3d 208 (5th Cir. 2000) (No. 99-50891) .........................................11
Nondiscrimination on the Basis of Disability; Accessibility of Web Information and
Services of State and Local Government Entities and Public Accommodations, 75 FR
43460-01 (proposed July 6, 2010) .................................................................8, 9, 10, 11, 12

iii
Nondiscrimination on the Basis of Disability; Notice of Withdrawal of Four Previously
Announced Rulemaking Actions, 82 FR 60932-01 (December 26, 2017) ........................11
Statement of Interest, Nat'l Assoc. of the Deaf v. Netflix, No. 11CV30168, 2015 WL
1834803 (D. Mass. May 15, 2012) (No. 11-30168) ..........................................................11

Legislative History and Materials

H.R. Rep. No. 101-485 (II) (1990), reprinted in 1990 U.S.C.C.A.N. 303.........................12
S. Rep. No. 101-116 (1990) .........................................................................................12, 13

iv
 1 OPINION BELOW

2 The United States District Court for the District of Vermont granted the Motion for

3 Summary Judgment filed by the Appellee, ApplesFeed.com. This order is included as

4 Appendix A.

5 ISSUES PRESENTED

6 I. The ADA is a remedial statute enacted to bring individuals with disabilities within

7 the “economic and social mainstream of American life.” To accomplish this purpose,

8 Title III of the ADA prohibits discrimination against disabled individuals by a public

9 accommodation, which is defined as any private entity affecting commerce and belonging

10 to one of twelve categories. One of these categories lists “a bakery, grocery store,

11 clothing store, hardware store, shopping center, or other sales or rental establishment.”

12 ApplesFeed.com is a web-only business that sells feed and supplies for miniature horses.

13 Is ApplesFeed.com a public accommodation covered by Title III?

14 II. Title III prohibits a public accommodation from discriminating against disabled

15 individuals by depriving them of the “full and equal enjoyment” of its goods and

16 services. Because ApplesFeed’s website did not comply with his JAWS reader, Trager

17 could not order his horse feed online and had to call the helpdesk to complete his orders.

18 On every order, the helpdesk failed to give Trager the Pony Points that were

19 automatically added to all online orders. Did ApplesFeed discriminate against Trager by

20 denying him the “full and equal enjoyment” of its goods and services?

21 STATUTES INVOLVED

22 The primary statute in this case is the operative provision of Title III of the ADA,

23 found at 42 U.S.C. § 12182. This statute is attached as Appendix B. The case also

1
24 involves Title III’s definitions provision, found at 42 U.S.C. § 12181 (see Appendix C),

25 and the Department of Justice’s regulations for implementing the auxiliary aids and

26 services requirement of Title III, found at 28 C.F.R. § 36.303(c)(1) (see Appendix D).

27 JURISDICTION

28 The United States District Court for the District of Vermont had federal-question

29 jurisdiction to hear this case under 28 U.S.C. § 1331, which gives district courts “original

30 jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the

31 United States.” 28 U.S.C. § 1331 (2018). The United States Court of Appeals for the

32 Second Circuit has jurisdiction to hear an appeal of the District Court’s summary

33 judgment under 28 U.S.C. § 1291, which states, “The courts of appeals…shall have

34 jurisdiction of appeals from all final decisions of the district courts of the United States.”

35 28 U.S.C. § 1291 (2018).

36 STATEMENT OF THE CASE

37 I. Facts

38 Plaintiff Chris Trager is blind as a result of a childhood illness and is supported by his

39 trained service animal Kevin, a miniature horse. (R-19.) Trager, who is committed to

40 nutrition and supporting local businesses, began ordering feed for Kevin from

41 ApplesFeed.com (R-20), a web-only business that provides supplies for miniature horses

42 (R-12). Although ApplesFeed fulfills most orders online, customers can call the helpdesk

43 with questions. (R-13.) Once a customer orders supplies, they are shipped from the

44 fulfillment center in Chester, Vermont, which is not open to the public. (R-12.)

45 On February 4, 2019, Trager accessed ApplesFeed.com using his Job Access with

46 Speech program, which read the website aloud to him. (R-20.) Although he was able to

2
47 sign up for ApplesFeed’s rewards program, Pony Points, he could not place his order.

48 (Id.) Undeterred, Trager called the helpdesk number. (Id.) Employee Antonio Saperstein

49 helped Trager complete his order and assured Trager that he would receive the Pony

50 Points that should come with it. (Id.) However, when Trager received his order, he had no

51 Pony Points. (Id.) On February 23, Trager placed another ApplesFeed order. (Id.) Once

52 again, he was unable to complete his order online, and once again, he called the helpdesk.

53 (Id.) Saperstein took Trager’s order, seeming “irritated” when Trager asked him to read

54 information about the company’s new products. (Id.) Trager again reminded Saperstein to

55 provide him with Pony Points, but when the order arrived, there were still no points. (Id.)

56 On March 1, Trager called the helpdesk a third time and asked to speak to a manager.

57 (Id.) ApplesFeed president Ron Swanson came to the phone and, after Trager explained

58 what had happened, Swanson assured Trager that he would correct the error. (R-13.) He

59 also promised to remind ApplesFeed’s employees to provide helpdesk customers with

60 Pony Points. (Id.) The next day, Swanson met with Saperstein to show him how to enter

61 the points and remind him of the company’s Customer Service Policy. (Id.) Saperstein

62 promised that he would remember (R-15), but when Trager attempted to place a third

63 order, he once again received no Pony Points (R-21). When he called a final time,

64 Saperstein first denied making a mistake. (Id.) When Trager continued to ask about his

65 points, Saperstein responded, “dude, don’t be mad.” (Id.)

66 II. Procedural History

67 On April 15, 2019, Trager filed a complaint against ApplesFeed.com under Title III of

68 the ADA. (R-1-4.) He alleged that ApplesFeed discriminated against him by denying him

69 the full and equal enjoyment of its goods and services as required by 42 U.S.C. §

3
70 12182(b)(2)(A)(iii) by failing to ensure effective communication as required by 28 C.F.R.

71 § 36.303(c)(1). (R-3.) Trager requested an injunction requiring ApplesFeed to “make its

72 website fully accessible to blind and visually impaired customers” and “properly train its

73 employees to ensure effective communication with customers with disabilities.” (Id.)

74 ApplesFeed answered on May 6, denying all three allegations (R-5-7), and moved for

75 summary judgment on October 16 (R-9-11). Trager responded on October 31 (R-16-18.)

76 On December 4, 2019, the United States District Court for the District of Vermont

77 granted ApplesFeed’s summary judgment motion. (R-22-23.) Trager appealed the

78 judgment on December 10, 2019. (R-24.)

79 SUMMARY OF THE ARGUMENT

80 Title III prohibits discrimination against disabled individuals by public

81 accommodations, which include “sales and rental establishments.” ApplesFeed is a sales

82 establishment because it sells horse feed and supplies to the public. The statute’s

83 language does not limit “public accommodation” to businesses that have a physical

84 location open to the public. In fact, some of the examples listed in the statute, such as

85 travel services, do much of their business over the phone or online and rarely require

86 customers to enter a physical structure. The ADA’s purpose also supports the inclusion of

87 web-only businesses. The ADA provides a “comprehensive national mandate for the

88 elimination of discrimination against individuals with disabilities.” This comprehensive

89 purpose and the ADA’s status as a remedial statute have led courts to construe it broadly.

90 Because most consumers buy some goods and services online, reading Title III to exclude

91 web-only businesses would thwart Congress’s intent to eliminate discrimination.

92 The interpretations from the Department of Justice and the legislative history of the

4
 93 ADA also support the inclusion of web-only businesses. The DOJ issued an advance

94 notice of proposed rulemaking in 2010 to consider explicitly including websites under

95 Title III. The agency stated that the purpose of the ADA, to allow disabled individuals to

96 participate fully in American society, could not be achieved unless Title III applied to

97 goods and services offered via website. This interpretation was supported by opinion

98 letters and amicus curiae briefs from the agency. The legislative history of the ADA also

99 supports the inclusion of web-only businesses under Title III. Reports from the House

100 and Senate committees indicate that the ADA should be interpreted broadly and evolve to

101 keep pace with changing times and technologies. Based on the text and legislative history

102 of the statute, as well as the DOJ’s interpretations, web-only sales establishments like

103 ApplesFeed are public accommodations covered by Title III.

104 As a public accommodation, ApplesFeed is subject to Title III and violated its duty to

105 provide Trager with the “full and equal enjoyment” of its goods and services. The

106 Department of Justice has stated that this duty includes “furnish[ing] appropriate

107 auxiliary aids and services…to ensure effective communication with individuals with

108 disabilities.” Employers must train their employees to effectively communicate with

109 disabled individuals and make reasonable efforts to enforce their policies. Although

110 ApplesFeed had a customer service policy in place, and Swanson reminded Saperstein to

111 provide Trager with his Pony Points, these methods were not successful. Trager was still

112 unable to order feed through the website, and Saperstein repeatedly failed to provide him

113 with points. ApplesFeed’s failure to provide Trager with the “full and equal enjoyment”

114 of its goods and services constitutes a violation of the ADA.

5
115 STANDARD OF REVIEW

116 This Court reviews a district court’s grant of summary judgment de novo. Zaretsky v.

117 William Goldberg Diamond Corp., 820 F.3d 513, 519 (2d Cir. 2016). Summary judgment

118 is proper only if there is no genuine issue of material fact in the case, with all evidence

119 viewed in the light most favorable to the nonmovant. Id.

120 ARGUMENT

121 Title III of the Americans with Disabilities Act provides, “No individual shall be

122 discriminated against on the basis of disability in the full and equal enjoyment of the

123 goods, services, facilities, privileges, advantages, or accommodations of any place of

124 public accommodation by any person who owns, leases…or operates a place of public

125 accommodation.” 42 U.S.C. § 12182 (2018). To bring a Title III claim, the plaintiff must

126 prove that (1) he or she is disabled within the meaning of the ADA, (2) the defendant

127 owns, leases, or operates a public accommodation, and (3) the defendant discriminated

128 against the plaintiff. Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). Both

129 parties in this case have conceded that plaintiff Trager is disabled. (R-1; R-5). Because

130 defendant ApplesFeed is a public accommodation that discriminated against Trager,

131 ApplesFeed’s motion for summary judgment should have been denied.

132 I. This Court should reverse the summary judgment because a “public
133 accommodation” is any private entity that offers goods and services to the
134 public, including web-only businesses.

135 Title III of the ADA defines “public accommodation” and lists categories of private

136 entities that are public accommodations. 42 U.S.C. § 12181 (2018). These categories

137 include “a bakery, grocery store, clothing store, hardware store, shopping center, or other

138 sales or rental establishment” and “a…travel service, shoe repair service…insurance

6
139 office…or other service establishment.” Id.

140 The Second Circuit has not determined whether web-only businesses are public

141 accommodations, but other circuits have reached differing conclusions. The narrower

142 interpretation finds that “public accommodation” means only entities with a nexus to a

143 physical place. See Ford v. Shering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998);

144 Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1011 (6th Cir. 1997); Robles v. Domino's

145 Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019). The broader interpretation finds that

146 “public accommodation” means any private entity that offers goods or services to the

147 public. See Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37

148 F.3d 12, 19 (1st Cir. 1994); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir.

149 1999). Although this Court has not ruled on this issue, it has stated that “public

150 accommodation” means “more than mere physical access.” Pallozzi v. Allstate Life Ins.

151 Co., 198 F.3d 28, 32 (2d Cir. 1999). A district court within the Second Circuit has

152 extended this holding to businesses that offer goods or services to the public but have no

153 physical space open to the public. Nat'l Fed'n of the Blind v. Scribd Inc., 97 F. Supp. 3d

154 565, 571 (D. Vt. 2015). This Court should adopt the broader interpretation, which is

155 supported by the text and purpose of the statute, as well as agency interpretations and

156 legislative history.

157 A. The text and purpose of Title III indicate that “public accommodation”
158 covers any private entity that offers goods or services to the public, including
159 a web-only business.

160 The first step in statutory interpretation is to determine the “plain and unambiguous

161 meaning” of the language. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Courts

162 should “interpret the relevant words not in a vacuum, but with reference to the statutory

7
163 context, ‘structure, history, and purpose.’” Abramski v. United States, 573 U.S. 169, 179

164 (2014) (quoting Maracich v. Spears, 570 U.S. 48, 76 (2013)). Courts should give

165 remedial statutes, such as nondiscrimination provisions, a broad construction. Conn.

166 Light & Power Co. v. Sec'y of U.S. Dep't of Labor, 85 F.3d 89, 94 (2d Cir. 1996).

167 ApplesFeed falls within category 7(E) of Title III’s definitions provision, which states

168 that “public accommodation” includes “a bakery, grocery store, clothing store, hardware

169 store, shopping center, or other sales or rental establishment.” 42 U.S.C. § 12181(7)(E).

170 Like the other establishments in this category, ApplesFeed offers its goods for sale to the

171 public. Although ApplesFeed does so exclusively online, other establishments in 7(E) are

172 increasingly providing goods and services to the public via websites. See

173 Nondiscrimination on the Basis of Disability; Accessibility of Web Information and

174 Services of State and Local Government Entities and Public Accommodations, 75 FR

175 43460-01, 43461 (proposed July 6, 2010). Because many of the public accommodations

176 named in § 12181 are doing business online in today’s market, ApplesFeed and

177 businesses like it fall within the textual bounds of “public accommodation.”

178 The statute applies to goods and services “of any place of public accommodation.” 42

179 U.S.C. § 12182. The first use of the word “of” in this phrase indicates that the goods and

180 services do not have to be provided in the place of public accommodation. Pallozzi, 198

181 F.3d at 33. Many of the examples listed in § 12181, such as a “bakery” and a “grocery

182 store,” sell goods that are normally used outside the physical place. Id. While “in” would

183 imply a connection to a physical place, “of” is broader and does not imply such a

184 connection. If Congress had meant to require physical entry into a facility, it would likely

185 have used the word “in” instead. Id.

8
186 Although the businesses in 7(E) usually operate storefronts open to the public, the

187 statute does not require a storefront for a business to be a “public accommodation.” Other

188 entities listed, such as a “travel service” in 7(F), operate over the phone or online and

189 rarely require customers to enter a physical structure. Carparts, 37 F.3d at 19. Since

190 Congress included such entities in § 12181, it probably did not mean to require public

191 access to a physical place. The plain language of the statute indicates that “public

192 accommodation” applies to private entities that offer goods or services to the public,

193 including web-only businesses.

194 The purpose of Title III also supports its application to web-only businesses. The

195 ADA provides a “comprehensive national mandate for the elimination of discrimination

196 against individuals with disabilities.” 42 U.S.C. § 12101(b)(1) (2018). Title III should be

197 construed broadly to serve this “comprehensive” goal. Because many consumers shop

198 online, excluding web-only businesses from Title III would “severely frustrate

199 Congress’s intent that individuals with disabilities fully enjoy the goods, services,

200 privileges and advantages available … to other[s].” Carparts, 37 F.3d at 20. “Being

201 unable to access Web sites puts individuals at a great disadvantage in today's society,

202 which is driven by a dynamic electronic marketplace….” Nondiscrimination on the Basis

203 of Disability; Accessibility of Web Information, 75 FR 43460-01, 43461. To read Title

204 III narrowly would mean the exclusion, rather than the inclusion, of disabled individuals

205 from this “dynamic electronic marketplace.” The narrow interpretation would also allow

206 businesses to freely discriminate against disabled individuals merely because they offered

207 their goods and services online rather than in person. Scribd, 97 F. Supp. 3d at 571. The

208 ADA’s purpose should lead this Court to construe “public accommodation” broadly.

9
209 Both this Court and the Supreme Court have ruled that the ADA should be construed

210 broadly. Mary Jo C. v. N.Y. State and Local Ret. Sys., 707 F.3d 144, 160 (2d Cir. 2013);

211 PGA Tour, Inc. v. Martin, 532 U.S. 661, 676-77 (2001). Because the ADA is a remedial

212 statute, courts should interpret it comprehensively to implement Congress’s solution to

213 widespread discrimination against people with disabilities. Mary Jo C., 707 F.3d at 160.

214 The twelve categories of “public accommodation” should be “construed liberally” to

215 ensure that disabled individuals have the same access to businesses as others do. Martin,

216 532 U.S. at 676-77. This Court should therefore give “public accommodation” the

217 broader interpretation, reading it to include any private entity that offers goods and

218 services to the public, whether online or in a physical place.

219 B. The Department of Justice interpretation and the legislative history of Title
220 III indicate that “public accommodation” includes any private entity that
221 offers goods or services to the public.

222 Even if “public accommodation” were ambiguous, interpretations from the

223 Department of Justice and the legislative history of the ADA support the inclusion of

224 web-only businesses. Agency interpretations of statutes receive deference based on “the

225 thoroughness evident in [the agency’s] consideration, the validity of its reasoning, [and]

226 its consistency with earlier and later pronouncements.” Skidmore v. Swift & Co., 323

227 U.S. 134, 140 (1944).

228 In 2010, the Department of Justice issued an advance notice of proposed rulemaking

229 (ANPRM) to consider explicitly extending Title III’s coverage to websites. See

230 Nondiscrimination on the Basis of Disability; Accessibility of Web Information, 75 FR

231 43460-01. The ANPRM was released to comply with Congress’s idea that “the

232 Department would apply [Title III] in a manner that evolved over time.” Id. at 43463. In

10
233 response to the increasing role of the Internet, the DOJ stated that the purpose of the

234 ADA, “to provide an equal opportunity for individuals with disabilities to participate in

235 and benefit from all aspects of American civic economic life,” could be achieved only if

236 Title III clearly encompassed goods and services offered via website. Id. at 43462. The

237 DOJ was very thorough in its consideration of this issue, consulting numerous court cases

238 and opening the topic for public comments. Id. at 43430, 43463.

239 Although the ANPRM was later withdrawn, Nondiscrimination on the Basis of

240 Disability; Notice of Withdrawal of Four Previously Announced Rulemaking Actions, 82

241 FR 60932-01 (December 26, 2017), the interpretation it expressed is consistent with other

242 statements from the agency. In 2000, the DOJ stated in an amicus curiae brief that

243 “neither the language of the statute, nor the underlying purposes of the Act, permit [the]

244 absurd result” of excluding services provided over the Internet from Title III. Brief of the

245 United States as Amicus Curiae Supporting Appellant at 5, Hooks v. OKbridge, Inc., 232

246 F.3d 208 (5th Cir. 2000) (No. 99-50891). In 2012, the agency again issued a statement

247 via an amicus curiae brief arguing that defendant Netflix was “a public accommodation

248 subject to title III of the ADA, even if it has no physical structure where customers come

249 to access its services.” Statement of Interest, Nat'l Assoc. of the Deaf v. Netflix, No.

250 11CV30168, 2015 WL 1834803 (D. Mass. May 15, 2012) (No. 11-30168).

251 The DOJ’s conviction that Title III should extend to web-only businesses has been

252 thoroughly supported and consistently communicated, as required by the Skidmore

253 factors for determining the deference given to agency interpretations. Therefore, this

254 Court should accord substantial deference to the DOJ’s statements. Although the DOJ

255 withdrew its 2010 proposal, its rationale is echoed in the agency’s other statements. The

11
256 DOJ has consistently supported the inclusion of web-only businesses under Title III. This

257 Court should follow suit and interpret “public accommodation” to include web-only

258 businesses.

259 The legislative history of Title III also supports the broader interpretation of “public

260 accommodation.” Legislative intent is a “fundamental canon of statutory interpretation.”

261 Iacone v. Cardillo, 208 F.2d 696, 699 (2d Cir. 1953). Courts should interpret statutes to

262 implement the policies behind them. S. New England Tel. Co. v. Comcast Phone of

263 Conn., Inc., 718 F.3d 53, 62 (2d Cir. 2013). The House Committee Report stated that the

264 ADA would “integrat[e]…persons with disabilities into the economic and social

265 mainstream of American life.” H.R. Rep. No. 101-485 (II), at 50 (1990), reprinted in

266 1990 U.S.C.C.A.N. 303, 332. The Committee explained that the categories of “public

267 accommodation” should be construed broadly to give people with disabilities “equal

268 access to the array of establishments that are available to others….” Id. Interpreting

269 “public accommodation” to exclude web-only businesses would put disabled individuals

270 at a “great disadvantage” and necessarily frustrate the aim of equal access, since today’s

271 marketplace is driven by technology and the Internet. Nondiscrimination on the Basis of

272 Disability; Accessibility of Web Information, 75 FR 43460-01, 43461. Because the

273 Internet is unquestionably part of the “social mainstream of American life” today,

274 excluding web-only businesses from Title III would directly oppose the legislative intent.

275 The Senate Report also indicates that Title III should evolve over time. The Report

276 stated, “technological advances can be expected to further enhance options for making

277 meaningful and effective opportunities available to individuals with disabilities.” S. Rep.

278 No. 101-116 (1990) at 62. The Senate intended these advances to allow businesses to

12
279 better accommodate disabled individuals. Id. The technological advances the Internet

280 provides should therefore be included under Title III. The narrow interpretation of

281 “public accommodation” would exclude the advances that web-only businesses represent

282 and hinder Congress’s goals. To avoid this conflict, this Court should construe “public

283 accommodation” to encompass any private entity that offers goods or services to the

284 public, including web-only businesses.

285 The plain language of Title III, the Department of Justice’s interpretations, and the

286 legislative history support the inclusion of web-only businesses that offer goods or

287 services to the public in the definition of “public accommodation.”

288 II. This Court should reverse the summary judgment because ApplesFeed did
289 not provide Trager with “full and equal enjoyment of its goods.”

290 Title III provides, “No individual shall be discriminated against on the basis of

291 disability in the full and equal enjoyment of the goods” of any public accommodation. 42

292 U.S.C. § 12182(a). Discrimination includes “failure to take such steps as may be

293 necessary to ensure that no individual with a disability is excluded, denied services,

294 segregated or otherwise treated differently than other individuals because of the absence

295 of auxiliary aids and services….” 42 U.S.C. § 12182(b)(2)(A)(iii). The Department of

296 Justice has stated that public accommodations must “furnish appropriate auxiliary aids

297 and services where necessary to ensure effective communication with individuals with

298 disabilities.” 28 C.F.R. § 36.303(c)(1) (2019). However, an isolated incident of

299 inadequate service or rude behavior does not violate Title III. See West v. Moe’s

300 Franchisor, LLC, No. 15CV2846, 2015 WL 8484567 (S.D.N.Y. Dec. 9, 2015) (holding

301 that restaurant owner whose employee failed to help blind customer use touchscreen

302 beverage dispenser on one occasion had not violated Title III).

13
303 A business’s failure to train its employees to effectively communicate with disabled

304 individuals violates Title III. Camarillo, 518 F.3d at 157. In Camarillo, a legally blind

305 patron frequented several of the defendant’s fast-food restaurants, none of which had

306 large-print menus. On multiple occasions, the patron asked the employees to read the

307 menu to her, but they often read only part of it and “laughed and stared at her.” The Court

308 held that the patron could bring a claim under Title III. Id. at 158. Although the rudeness

309 and insensitivity of the employees did not violate the ADA, the repeated problems the

310 patron faced created a “reasonable inference” of the defendant’s failure “to adopt policies

311 or procedures to effectively train…employees how to deal with disabled individuals.” Id.

312 at 157. The Court stated that this failure to train violated the defendant’s duty to “ensure

313 that no individual with a disability is…treated differently…because of the absence of

314 auxiliary aids and services.” Id. (quoting 42 U.S.C. § 12182(b)(2)(A)(iii)).

315 Employers must also make reasonable efforts to enforce their policies to ensure

316 effective communication with disabled individuals. Stan v. Wal-Mart Stores, Inc., 111 F.

317 Supp. 2d 119, 127 (N.D.N.Y. 2000). In Stan, a legally blind shopper with a service dog

318 was refused entry to defendant’s stores twice. The shopper wrote to the defendant’s

319 corporate headquarters complaining, after which the defendant trained its employees

320 about service animals. On the shopper’s next visits, she could bring her dog inside,

321 although an employee rudely questioned her about it once. The court held that the

322 shopper could not bring a Title III claim. Id. at 126. The defendant’s stores already had

323 service animal policies and training for employees, and the defendant implemented

324 further training after the shopper’s complaints. Id. at 125. After this training, the shopper

325 was allowed to bring her dog inside. Id. at 126-27. According to the court, the change in

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326 employee behavior indicated that the defendant had made “reasonable modifications to

327 its policies” to ensure that the shopper did not experience further discrimination. Id. at

328 126.

329 ApplesFeed’s repeated failure to provide Trager with Pony Points for his purchases

330 indicates that it did not adequately train its employees. Unlike the plaintiff in West, who

331 experienced only an “isolated incident” of inadequate service, Trager was denied Pony

332 Points on three occasions. (R-20-21.) His experience was more akin to the patron in

333 Camarillo, who was denied effective communication when defendant restaurant refused

334 to read menus aloud to her multiple times. ApplesFeed’s website was not equipped for

335 visually impaired individuals, and Saperstein provided inadequate service to Trager and

336 denied him the benefits given to other customers multiple times, even after Trager

337 complained. (R-20-21.) Because Trager experienced repeated problems with

338 ApplesFeed’s service, the Court should infer that ApplesFeed failed to train its

339 employees to effectively communicate with disabled individuals.

340 Trager’s experience with ApplesFeed was not the mere rudeness or insensitivity of a

341 single employee. Although Saperstein did seem annoyed with Trager on their second call

342 (R-20), this rudeness was similar to the rudeness experienced by the patron in Camarillo.

343 In Camarillo, the employees’ rudeness in laughing at the patron was coupled with

344 repeated refusals to read the menu to her. Similarly, Saperstein’s rudeness to Trager came

345 after his repeated failures to provide Trager with Pony Points. (R-20.) Therefore, Trager’s

346 Title III claim should succeed.

347 The repeated problems Trager suffered create a claim under Title III because they

348 were not remedied by ApplesFeed’s Customer Service Policy. Like the defendant in Stan,

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349 ApplesFeed has a Customer Service Policy extending its “excellent service” to disabled

350 individuals. (R-15). Manager Ron Swanson also “reminded” Saperstein about the policy

351 after Trager’s complaints. (R-13). However, unlike the situation in Stan, when the

352 shopper’s problems ceased after the defendant retrained its employees, Trager

353 experienced the same inadequate service after Swanson’s instruction. (R-21). The Stan

354 shopper’s ADA claim failed partly because the defendant retrained its employees to

355 ensure that the discriminatory behavior did not happen again. The steps ApplesFeed took

356 were not enough to achieve the same result. Swanson’s remainder to his employees does

357 not negate Trager’s ADA claim because his efforts did not “ensure effective

358 communication” with Trager in the future.

359 Because ApplesFeed failed to train its employees to assist disabled individuals,

360 indicated by repeated customer service problems, and also failed to enforce its policies to

361 ensure effective communication, it did not “furnish appropriate auxiliary aids and

362 services where necessary to ensure effective communication….” See 28 C.F.R. §

363 36.303(c)(1). Issues of material fact exist about whether ApplesFeed discriminated

364 against Trager under Title III, and this Court should reverse the summary judgment.

365 CONCLUSION

366 The plain language and purpose of Title III support the inclusion of web-only

367 businesses like ApplesFeed in the definition of “public accommodations.” This

368 construction is supported by statements from the Department of Justice and the legislative

369 history of the ADA. As a public accommodation, ApplesFeed is obligated to include

370 disabled individuals in the “full and equal enjoyment” of its goods and services by

371 providing them with the “auxiliary aids and services” necessary to “ensure effective

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372 communication.” It violated this obligation when it failed to provide Trager with an

373 accessible website or Pony Points. This Court should find that issues of material fact exist

374 and reverse the district court’s grant of summary judgment.

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