Daigle v. Friendly Ice Cream CV-96-225-SD 02/03/97 P

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Richard Daigle

_____ v. Civil No. 96-225-SD

Friendly Ice Cream Corp.

O R D E R

This case brought under the Americans with Disabilities Act

(ADA) arose from the eviction of plaintiff Richard Daigle from

Friendly's Restaurant, allegedly due to his disability. Before

the court is the defendant's motion to dismiss for lack of

subject matter jurisdiction.

Facts

Plaintiff claims the following facts. On May 4, 1993, he

was inside the Friendly's Restaurant and had just received a

drink when the manager approached him and stated that he was no

longer welcome in any Friendly's Restaurant. The plaintiff

voluntarily left.

Some time later, plaintiff received a "No Trespass Notice"

from defendant stating: "You were advised that you were no

longer welcome as a customer of any Friendly's Restaurant, and that any attempt by you to enter a Friendly's Restaurant will be

deemed a trespass!" Complaint at 2.

Plaintiff claims that Friendly's denied him services because

of his physical disability, corneal abrasion, described by plain­

tiff as a condition in which the clear part of the eye is no

longer in place to protect the nerves of the eye. Plaintiff

claims that the defendant's actions are in violation of Title III

of the Americans with Disabilities Act.

, et

seq.

Discussion

Friendly's seeks dismissal under Rule 12(b)(6), Fed. R. Civ.

P., on the ground that plaintiff failed to comply with the

requirements of 42 U.S.C. § 2000a-3(c) (made applicable to the

ADA by

(a)(1)), which mandates notice as a

precursor to instituting action in federal court under the ADA if

the conduct underlying the ADA claim is likewise prohibited by

analogous state law.1 When there are such overlapping state

x42 U.S.C. § 2000a-3(c) provides:

In the case of an alleged act or practice prohibited by this subchapter which occurs in a State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) of this section before the

2 remedies, section 2000a-3(c) forestalls civil action under the

ADA until notice of the alleged conduct has been given to the

appropriate state authority.

Even though Friendly's labels its motion as one brought

under Rule 12(b) (6), section 2000a-3(c)'s notice requirement is

jurisdictional. Stearnes v. B a u r 1s Opera House, Inc.,

(7th Cir. 1993). Friendly's motion is more properly

denoted a Rule 12(b) (1) motion for lack of subject matter

jurisdiction. "On a Rule 12( b ) (1) motion, the court can consider

facts beyond those alleged in the complaint and if necessary and

appropriate resolve factual disputes." Watkins v. Dave &

Buster's , Inc.,

, at 1 (N.D. 111. 1996) (citing

English v. Lowell,

(7th Cir. 1993)) .2

Here, plaintiff alleges that Friendly's violated the

provision of the ADA that prohibits discrimination on the basis

expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.

defendants object to this court's considering plaintiff's last reply memorandum because under Local Rule 1 ( a ) (4) no reply memorandum is permitted without prior leave of the court. Given the broader scope of the court's inquiry when considering the limits of its subject matter jurisdiction, Crawford v. United States,

(7th Cir. 1996), the court may consider arguments not raised in the parties' memoranda. Even if the plaintiff's reply memorandum is not properly before this court, the court may, nonetheless, consider the arguments raised therein on a Rule 12(b) (1) motion.

3 of disability "in the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommodations

of any place of public accommodation."

(a).

New Hampshire state law contains a prohibition against dis­

crimination on the basis of disability in public accommodations

that is practically identical to the ADA.3 New Hampshire anti-

discrimination law fully and squarely addresses Friendly's

alleged conduct. For this reason, plaintiff must have complied

with section 2000a-3(c)'s notice requirement to trigger this

court's jurisdiction to hear his ADA claim.

Before reaching the merits, this court takes note that the

grounds asserted in support of dismissal are extremely technical

grounds upon which to deny Daigle his day in court. Courts

construing Title VII have noted that, due to Title VII's remedial

nature

3New Hampshire Revised Statutes Annotated (RSA) 354-A:17 provides:

It shall be an unlawful discriminatory practice for any person . . . because of the . . . physical or mental disability . . . of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof; or, directly or indirectly, to publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement to the effect that any of the accommodations . . . of any such place shall be refused, withheld from or denied to any person on account of . . . physical or mental disability

4 the congressional purpose would not be furthered by requiring strict adherence to every procedural technicality. . . . Mindful of the remedial and humanitarian underpinnings of Title VII and of the crucial role played by the private litigant in the statutory scheme, courts . . . have been extremely reluctant to allow procedural technicalities to bar claims brought under the Act.

Aros v. McDonnell Douglas Corp.,

(C.D. C a l .

1972) (quoting Sanchez v. Standard Brands, Inc.,

(5th Cir. 1970)). Instead of mandating strict adherence,

courts have found the procedural requirements of Title VII met by

"substantial compliance." See A r o s , supra,

;

see also Neely v. United States,

(U.S. C t . Cl.

1961) ("We think this was substantial compliance with the last

step in the exhaustion of plaintiff's administrative remedies.")

In construing the procedural requirements of the ADA now before

this court, it is appropriate to take guidance from the line of

precedents interpreting the procedural requirements of Title VII.

See Carparts Distrib. Ctr. V. Automotive Wholesaler's Ass'n, 37

F .3d 12, 16 (1st Cir. 1994).

This court finds that plaintiff substantially complied with

section 2000a-3(c)'s notice requirement. While Daigle's notice

was not perfect in every respect, it was sufficiently conforming

to deflect Friendly's motion to dismiss for procedural defect.

Section 2000a-3 (c) mandates written notice to the

"appropriate state authority." The state authority that

5 administers the New Hampshire anti-discrimination law is the New

Hampshire Commission for Human Rights. Complaints alleging

unlawful discrimination are filed with the Commission, which then

conducts an investigation and, when appropriate, administers

available remedies. Complaints may be filed by either the

aggrieved individual or the New Hampshire Attorney General.

The evidence shows that plaintiff merely called the

Commission to complain of Friendly's alleged discrimination, but

never sent formal written notice. Letter from Bill Hagy at New

Hampshire Commission for Human Rights, attached to Plaintiff's

Motion Requesting Waiver of Written Notice. However, on

September 19, 1994, plaintiff did write to the New Hampshire

Attorney General's office seeking that office's intervention

against Friendly's.

This court finds that the letter sent to the attorney

general constitutes written notice to an "appropriate state

authority" in satisfaction of section 2000a-3(c). Even though

the Commission for Human Rights administers the anti-discrimina­

tion law, the attorney general is, nonetheless, an "appropriate

state authority" under section 2000a-3 (c) . The purpose of the

notice requirement is to give the state the first opportunity to

remedy the alleged discrimination. Since the attorney general

may file a complaint with the Commission on Human Rights, notice

to the attorney general gives the state an opportunity to address

and remedy alleged violations of the New Hampshire anti-

6 discrimination law. There is no apparent justification for not

treating the attorney general as an "appropriate state

authority."

Section 2000a-3 (c) further provides for the written notice

to be given by registered mail or in person. Although there is

no evidence that Daigle sent the letter to the attorney general's

office by registered mail, this fact alone would be an exces­

sively technical ground upon which to turn Daigle away from this

court, since the record contains clear and reliable evidence

confirming that the letter was in fact received by the attorney

general's office. That evidence is a letter from the attorney

general's office acknowledging that Daigle sent that office

notice of Friendly's alleged discrimination. Given the existence

of such reliable evidence of the notice, there is no reason to

require that Daigle sent the notice by registered mail.

Lastly, Friendly's takes issue with the timeliness of the

notice. There is a statute of limitations built into the New

Hampshire anti-discrimination law providing that "[a]ny complaint

filed pursuant to this section by an aggrieved person must be

filed within 180 days after the alleged act of discrimination."

RSA 354-A:21, III. The incident at the restaurant occurred on

May 4, 1993; the letter advising Daigle that he was unwelcome at

Friendly's was received on May 6, 1993. Daigle's notice was not

received by the attorney general's office until September 19,

1994, over one year after the incident occurred. Since the

7 written notice was received after the 180-day time frame required

for the filing of a complaint under the New Hampshire anti-

discrimination law, it was, according to Friendly's, ineffectual

to satisfy section 2000a-3(c) .

However, this argument overlooks the distinction between, on

the one hand, filing a complaint under the New Hampshire law and,

on the other, sending notice to the "appropriate authority" to

satisfy the section 2000a-3(c) prerequisite of an ADA claim.

The 180-day statute of limitations only applies to the time

within which a complaint may be filed under New Hampshire anti-

discrimination law. However, in order to satisfy the prerequi­

sites of an ADA claim contained in section 2000a-3(c), a party is

not required to file a complaint or to otherwise pursue action

under the applicable state anti-discrimination law. Section

2000a-3(c) only requires that notice be given to the "appropriate

authority," and giving notice to state authorities is not the

same thing as filing a state law complaint. Notice received by

an appropriate state authority after a state law complaint has

been time barred still may satisfy section 2000a-3(c) because

section 2000a-3 (c) does not require any complaint to ever be

brought.

Granted, the purpose of the notice requirement is to give

the state the first opportunity to address and remedy the

situation. This purpose is undermined if notice is received by

state authorities after the state law complaint is time barred. Here, however, the evidence conclusively demonstrates that Daigle

called the New Hampshire Commission for Human Rights within 180

days from the date of the original incident of alleged dis­

crimination. The New Hampshire authorities were given ample

opportunity to address and remedy this alleged discrimination.

Under these circumstances, there is no harm in honoring Daigle's

written notice to the attorney general, even though it was

received after the statute of limitations had run on his state

law complaint.

Conclusion

For the above reasons, defendant's motion to dismiss is

denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

February 3, 1997

cc: Richard Daigle, pro se Sean M. Dunne, Esq.

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