NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 3 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUDY SZWANEK; JAMES LOPEZ II, No. 20-16942 individually and on behalf of all others similarly situated, D.C. No. 3:20-cv-02953-WHA

Plaintiffs-Appellants,

MEMORANDUM*

v.

JACK IN THE BOX, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Argued and Submitted October 18, 2021 San Francisco, California

Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,** International Trade Judge. Dissent by Judge WATFORD.

Judy Szwanek and James Lopez II, who are both legally blind, claim that Jack

in the Box violated Title III of the Americans with Disabilities Act (ADA) and the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Unruh Civil Rights Act by closing inside seating at night in two of its restaurants

and serving food solely through drive-through windows that are available only to

customers in motor vehicles. The district court granted Jack in the Box’s motion to

dismiss the operative complaint in this putative class action. We affirm.

1. “To prevail on a Title III discrimination claim, the plaintiff must show that

(1) she is disabled within the meaning of the ADA; (2) the defendant is a private

entity that owns, leases, or operates a place of public accommodation; and (3) the

plaintiff was denied public accommodations by the defendant because of her

disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). There is

no dispute that Szwanek and Lopez are disabled, nor that Jack in the Box restaurants

are “place[s] of public accommodation.” The only issue is whether Szwanek and

Lopez were denied accommodations “because of” their blindness.

A facially neutral policy, like the one at issue here, violates the ADA only if

it burdens a plaintiff “in a manner different and greater than it burdens others.”

Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996). The operative complaint

does not plausibly allege that the Jack in the Box policy did so. The refusal to serve

food to pedestrians at drive-through windows does not impact blind people

differently or in a greater manner than the significant population of non-disabled

people who lack access to motor vehicles. If these non-disabled individuals wish to

purchase food at Jack in the Box restaurants when the dining rooms are closed, they

2 face precisely the same burden as blind people—they must arrive at the drive-

through window in a vehicle driven by someone else.

2. Crowder is not to the contrary. At issue in that case was a Hawaii policy

requiring a 120-day quarantine for all dogs entering the state. Id. at 1481–1482. In

finding the policy violated Title II of the ADA, we stressed that

Although Hawaii’s quarantine requirement applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a manner different and greater than it burdens others. Because of the unique dependence upon guide dogs among many of the visually- impaired, Hawaii's quarantine effectively denies these persons—the plaintiffs in this case—meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others.

Id. at 1484. We also noted the legislative history and governing regulations made

clear that “the general intent of Congress” in enacting the ADA was “to ensure that

individuals with disabilities are not separated from their service animals.” Id. at

1485 (cleaned up).

Here, in contrast, the Jack in the Box policy burdens the plaintiffs in precisely

the same manner as non-disabled individuals who wish to purchase food when

indoor dining is not available at the restaurants and do not drive or have access to

motor vehicles. Nor do ADA regulations give special solicitude to those who wish

to obtain takeout meals when restaurant dining rooms are closed. Finally, there is

no indication in the legislative history that Congress meant to do so. The district

court did not err in dismissing the operative complaint.

3

AFFIRMED.

4

FILED

Szwanek v. Jack in the Box, Inc., No. 20-16942

NOV 3 2021

WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I think the plaintiffs have alleged a viable claim for discrimination under

Title III of the Americans with Disabilities Act (ADA), at least for purposes of

surviving a motion to dismiss. I would therefore reverse and remand for further

proceedings.

The ADA defines the concept of “discrimination” more broadly than other

anti-discrimination statutes. Title III contains a general prohibition stating that no

person “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).

Key here is a provision that defines discrimination to include “a failure 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.” § 12182(b)(2)(A)(ii).

This latter provision goes beyond merely requiring disabled patrons to be

treated the same as non-disabled patrons. Indeed, in some situations, treating Page 2 of 3

disabled patrons the same as non-disabled patrons is the very conduct prohibited

by this provision. As we noted in Fortyune v. American Multi-Cinema, Inc., 364

F.3d 1075 (9th Cir. 2004), “the ADA defines discrimination as a public

accommodation treating a disabled patron the same as other patrons despite the

former’s need for a reasonable modification.” Id. at 1086. Thus, preferential

treatment of the disabled is sometimes required by the ADA. See, e.g., id.

(requiring movie theater to ensure that a disabled patron’s companion could be

seated next to him); see also US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002)

(“preferences will sometimes prove necessary to achieve the Act’s basic equal

opportunity goal”).

In this case, it is true that Jack in the Box’s policy is facially even-handed:

All patrons, disabled or not, are required during certain hours to use the drive-thru

to obtain access to the goods Jack in the Box offers. But that fact alone does not

render Jack in the Box’s policy non-discriminatory. “We have repeatedly

recognized that facially neutral policies may violate the ADA when such policies

unduly burden disabled persons, even when such policies are consistently

enforced.” McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004); see

also Crowder v. Kitagawa, 81 F.3d 1480, 1484–85 (9th Cir. 1996). The drive-

thru-only policy unduly burdens the blind because, as a result of their disability,

they are unable to drive. It is irrelevant that other people are also unable to access Page 3 of 3

Jack in the Box’s goods because they cannot drive for reasons not protected under

the ADA. The blind (and others whose disabilities preclude them from driving)

are entitled to a reasonable modification of the drive-thru-only policy because that

is what’s necessary to afford them “full and equal enjoyment” of the goods Jack in

the Box offers. 42 U.S.C. § 12182(a); see Baughman v. Walt Disney World Co.,

685 F.3d 1131, 1135 (9th Cir. 2012). Even if affording such an accommodation to

the blind is regarded as “preferential” treatment, such accommodations “are not

only contemplated by the ADA, they are required.” Fortyune, 364 F.3d at 1086.

The remaining concerns Jack in the Box raises must be addressed at a later

stage of the proceedings. The modifications plaintiffs request must of course be

reasonable, taking into account the costs of such modifications, disruption of the

entity’s business, and safety concerns. Baughman, 685 F.3d at 1135; Fortyune,

364 F.3d at 1083. If the plaintiffs’ requested modifications are ultimately found to

be reasonable, Jack in the Box can still avoid liability if it shows that implementing

the modifications would “fundamentally alter” the nature of the goods it provides.

42 U.S.C. § 12182(b)(2)(A)(ii). Those issues cannot be resolved in this case on a

motion to dismiss, which is why the plaintiffs’ claims should have been allowed to

proceed.