Law alumna Carrie Ann Lucas successfully challenged Kmart in a landmark disabilities access case. Photo: Wayne Armstrong
From her vantage point as lawyer, activist, advocate, parent of three and wheelchair occupant, Carrie Ann Lucas (JD ’05) knows that progress in disability rights is measured painstakingly: For every faltering step forward, there’s a setback. For every great leap, another chasm materializes.
The equation may be cursed by minuses, but as Lucas sees it, the positives are beginning to add up.
She herself can take some of the credit. In summer 2006, a disability-access suit that she had launched against Kmart in 1999 was settled for $13 million, plus $3.25 million in attorneys’ fees. That makes it the largest settlement ever in a disability-access case — a sit-up-and-take-notice precedent for the nation’s retailers.
As the lead plaintiff in the class action suit, Lucas considers the victory — and the years of toil that produced it — another chapter in a story of personal indignation against injustice. “I was always a rabble rouser,” she explains. “I remember being in third or fourth grade and they had a limit that kids could only have five books from the library. I got them to change that policy.”
Living life
It’s a hot afternoon in late July, a special day for Lucas. “It’s the 17th anniversary of the Americans with Disabilities Act,” she points out. She’s in her office at the Denver-based Colorado Cross-Disability Coalition, where she is director of the Center for Rights of Parents with Disabilities. In this position, Lucas helps parents with disabilities resolve child custody issues, tackle housing discrimination and gain access to social services. “We’re really the only place in the country with a program that specializes in parents with disabilities,” she says. The 36-year-old Lucas channels the bulk of her energy and passion into the center — after all, she can identify with her clients. She’s both a parent and a citizen with disabilities. She’s fought the battles her clients face — with her disability, with the system, with public perception.
Because she has central core myopathy, a muscle wasting disease, Lucas uses a wheelchair. In addition, her vision and hearing are severely impaired, and she breathes with the assistance of a ventilator. Over the years, she has developed a serious allergy to many antibiotics, meaning that a simple infection can bring on a host of complications. “I hit some bizarre genetic jackpot,” she says, summing up the source of her challenges.
None of this keeps her from dashing around the office at mach speed, piloting her wheelchair with NASCAR flair. In, out, back, forth, zip, zoom. Nor does it keep her from taking her three adopted daughters — 17-year-old Heather, 12-year-old Asiza and 8-year-old Adrianne, each one of them a child with disabilities — on weekend camping trips. And it certainly doesn’t keep her from crossing the state for court dates on behalf of clients.
“I drove to Pueblo to go to a hearing last week,” she says matter-of-factly, no hint of exasperation in her voice, “only to discover the elevator was broken and there was no sign-language interpreter. So I drove four hours for nothing.”
Not quite for nothing. Lucas knows from experience that justice is full of stays and delays — some of them judge ordered, others, like the elevator failure, the result of benign negligence or bureaucratic bungling. In the face of lady justice’s slow and deliberate habits, patience is too often required.
But Lucas isn’t a patient person. Or so she says. She does, however, possess something just as effective: persistence.
Just ask the home of the blue light special. Just follow the miles-long document trail in Lucas v. Kmart.
A need for change
The suit grew out of Lucas’ longtime patronage of Denver-area Kmart stores. Visit after visit, she found herself increasingly frustrated by the stores’ careless disregard for accommodation issues: a shortage of accessible parking spaces; dressing rooms rendered inaccessible by piles of merchandise; aisles consistently blocked by crates and boxes. Perhaps most frustrating, she recalls, “I would go to check out and the accessibility lane would be closed. And I couldn’t check out because all of the other aisles were inaccessible. So I would put things down and leave.”
Just as often, she took the time to complain. “I would ask for the manager on duty, and I would be assured that the problem would be fixed by the time I came back again,” she says. “But they were just telling me they would fix it to get me to go away.”
Eventually, Lucas filed a claim with the Department of Justice, hoping to mediate a resolution to the ongoing problem. “I had done mediation with some smaller outfits, where they didn’t have a ramp, and had been successful,” she says. Surely, she thought, a complaint filed with a federal agency would capture Kmart’s attention. “But Kmart refused to mediate because they said they had already fixed everything.”
That’s when she took the case to Denver-based Fox & Robertson, a law firm specializing in civil rights cases and headed by the husband-and-wife team of Tim Fox (BA math and economics ’88) and Amy Robertson. At the same time, she approached the Colorado Cross-Disability Coalition’s Kevin Williams (JD ’96), who teamed with Fox & Roberson as co-counsel.
At first perusal, Robertson thought the case was simple and routine: One plaintiff of sound mind and good will takes on a respectable retailer to address obvious — and seemingly indisputable — violations of federal requirements, specifically those outlined in Title III of the ADA, which pertains to private entities open to the public.
The case quickly became downright complex and trailblazing. “We initially filed with just Carrie,” Robertson says, “and then we started to hear from people in other parts of the country. Once we had these anecdotes, we sent out queries: Had anyone else had similar issues?”
The stories began to pile up, tales of frustration from throughout Colorado and across the nation. One Virginia man told of the humiliation he experienced when his wheelchair knocked over a tower of snack foods. A California woman described how her wheelchair got stuck in one narrow aisle, forcing her to yell for help. Still another California customer told how she could never access the clothing aisles and had to shout out requests for styles, sizes and colors to a sales associate.
With similar stories from 27 states, Lucas and her attorneys decided to file for class action status, if only to ensure that Kmart couldn’t dismiss the grievances as isolated problems indicative of nothing more than an individual store’s negligence.
“Especially in cases like this, [a class action suit] was very desirable because then you can get access to policies and practices chain-wide,” Robertson says. “The biggest effect of the class was to get at the whole chain.”
That was Lucas’ goal as well. She didn’t want to see all the Denver stores brought into compliance with the ADA, only to venture into a Grand Junction outlet and encounter the same old problems. “If we’re going to go to all of the trouble of filing a lawsuit, we’re going to fix the problem,” she remembers thinking.
The case proceeded, with contentious hearings and motions and petitions and even attempts to undermine the plaintiffs’ credibility. “Carrie was just the most fantastic client,” Robertson says, noting that Lucas’ photographic recall of every Kmart visit just made her case stronger. “They took her deposition for three days, about shopping at Kmart. Pllllease.”
In fact, Kmart’s aggressive defense struck Lucas and her attorneys as surprisingly strident. “We were very, very puzzled at how hard they fought … they just fought tooth and nail,” Robertson says. “They had the opportunity to go to Carrie and say, let’s resolve this. But initially, the attitude was, just go away.”
And then, in January 2002, Kmart filed for Chapter 11 bankruptcy, which meant that all litigation was subject to a stay. Since the Lucas suit sought only injunctive relief — in other words, it asked the court to order Kmart to comply with the law — Robertson tried to pursue the case, thinking that Kmart could still bring its stores into compliance with ADA standards. After all, relief meant nothing more elaborate than reconfiguring parking spaces, providing suitable fitting rooms and restrooms, adjusting aisles, removing boxes and keeping the accessible checkout lane open.
Robertson’s efforts proved futile, and Lucas v. Kmart was put on a back shelf.
For Lucas, the bankruptcy filing represented a dispiriting development, not just because the case might fail to make a tangible difference in the disabled population’s shopping experiences. By this time, Fox & Robertson had spent three years pursuing the costly case. “I knew how much this little firm had in it,” Lucas says. With Kmart’s future in question, she was afraid that Fox & Robertson might lose everything.
When Kmart — which could not be reached for comment for this article — emerged from bankruptcy in 2003, its new management and legal team took a fresh look at the ADA case. Suddenly, Lucas recalls, “they were ready to roll up their sleeves and go to work.”
There was plenty of work to do. The two sides had to reach agreement on just what an accessible and ADA-compliant Kmart would look like. To that end, the plaintiffs and defendants worked together to revise store policies, improve employee training and refine store layout. Lucas herself went on-site at Denver-area Kmart stores, wheeling through the clothing sections to show store designers just how a shopper with disabilities negotiates aisles and fitting rooms.
Just as important, Kmart agreed to implement an innovative online feedback mechanism, allowing customers with disabilities to report on their shopping experiences. This way, Kmart is able to address emerging access and accommodation issues immediately and across the chain.
With that work underway, the two parties also had to arrive at a settlement. Although Title III of the ADA makes no provision for damages, several of the plaintiffs came from states that do. Colorado allows for nominal damages, while California calls for up to $4,000 per incident. By the time the lawyers were negotiating the settlement, Robertson says, Kmart wanted to expand the class action pool to ensure that no additional suits would follow and that it would be responsible for a one-time payment. Ultimately, the corporation agreed to pay $8 million in cash and $5 million in gift cards, with $10,000 going to each of the three main plaintiffs, Lucas included.
“I have to give a lot of credit to Kmart’s managers and attorneys post-bankruptcy,” Robertson says. “They didn’t cave, but it was clear that their goal was to make things right.”
Looking back, Robertson sees the Lucas case as a textbook example of how to affect change in a national chain. “In many ways, we were plowing new ground. There had never been a contested class action [of a Title III ADA case] of this size,” she says, noting that the years-long struggle was always civil, even in the midst of “scorched-earth” litigation.
Lucas, who earned her law degree while the case played out, takes pride in the way it was pursued, in its unrelenting focus on improving life for Kmart’s disabled customer base. She points to a courtroom statement by Senior U.S. District Court Judge John Kane, delivered during the case’s final fairness hearing and posted on the Colorado Cross-Disability Coalition’s Web site: “It is very difficult to find justice, but you develop a gestalt when justice has been achieved, and I think that happened in this case. … I would say any lawyer … should examine this file to see how a class action should be handled. The rights and obligations of all the parties have been represented, and this has not taken on the aspects of a barroom brawl.”
Making a difference
So just what has justice delivered — however languorously?
Laura Rovner, an assistant professor at the Sturm College of Law and an expert in disability rights, notes that Lucas v. Kmart sends a compelling message: Title III of the ADA has to be taken seriously. Failure to do so may prove costly.
“I think this was a huge wake up call,” Rovner says, noting that the settlement tells retailers — many of whom have felt sheltered by Title III’s failure to provide for damages — that attorneys can and will pursue these cases vigilantly. “There are not a ton of lawyers who take on these kinds of cases because there are no damages,” she explains. But Lucas v. Kmart shows an alternate path that relies on class action status and parallel legislation in the states to arrive at damages and achieve relief. “Seeing one [case] go the distance and get the kind of comprehensive relief that was awarded in this case may get retailers to act proactively,” Rovner says.
Lucas believes that’s already happening. “At the macro level,” she says, “we’ve already seen [retailers] say, let’s not spend money fighting this, let’s just make the changes.”
At the micro level, where Lucas invests her emotional capital, the results are just as gratifying. “People with disabilities generally are not wealthy. Most of us are poor. We’re buying our kids’ school clothes at Kmart,” she explains. “People with disabilities often don’t have the option of traveling across town to a Kmart that might have a better set-up. They’re stuck with their Kmart. For these people, it makes a big difference in their day-to-day lives that they can go buy shampoo and toilet paper.”
And on the purely personal level, the settlement represents an enormous relief to Lucas and her family. No more hearings, no more depositions, no more taxations of her overtaxed patience. Perhaps best of all, the Lucas clan — Heather, Asiza, Adrianne and Carrie Ann — can now visit their neighborhood Kmart in search of bargains. Just like everyone else.