Case: 1:16-cv-05652 Document #: 1 Filed: 05/26/16 Page 1 of 15 PageID #:1

Roberto Luis Costales, Esq.

Louisiana Bar #33696
3801 Canal Street, Suite 207
New Orleans, LA 70119
Telephone: (504) 534-5005
Facsimile: (504) 272-2956
[email protected]
William H. Beaumont, Esq.
Louisiana Bar #33005
3801 Canal Street, Suite 207
New Orleans, LA 70119
Telephone: (504) 483-8008
[email protected]
Counsel for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

No.
SCOTT MAGEE Individually
and on Behalf of All Others Similarly
Situated,
Plaintiff,
v.
McDonalds Corporation,
Defendant.

CLASS ACTION COMPLAINT

DEMAND FOR JURY TRIAL

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Plaintiff Scott Magee (Plaintiff or Plaintiff Magee) alleges the following based upon
personal knowledge as to himself and his own acts, and upon information and belief and the
investigation by Plaintiffs counsel, which included, among other things, a review of public
documents, marketing materials, and announcements made by McDonalds Corporation
(Defendant or McDonalds) as to all other matters.

Plaintiff believes that substantial

additional evidentiary support exists for the allegations set forth herein and will be available after
a reasonable opportunity for discovery.
NATURE OF THE ACTION
1.

This class action seeks to put an end to systemic civil rights violations committed

by McDonalds against blind persons in the United States.

McDonalds is denying blind

individuals equal access to the goods and services they provide during late-night hours at
thousands of their restaurants throughout the United States.
2.

In an effort to increase profits and make their products more available to the

public for longer periods of time, McDonalds offers late night hours. During these late
evening and early morning operating times, patrons are not allowed to physically enter
McDonalds restaurants and McDonalds only offers its products and services via drive-thru
windows attached to its restaurants. The drive-thru is the exclusive means by which a customer
can purchase McDonalds products.
3.

Despite being accessible to the general public McDonalds drive-thrus lack any

meaningful accommodation for the blind. Because McDonalds does not permit pedestrians to
order from its drive-thru windows, the blind are totally precluded from accessing Defendants
products during late night hours.

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4.

While McDonalds sighted customers can independently browse, select, and pay

for products at Defendants drive-thrus without the assistance of others, blind people must hope
for a companion with a car or paid taxi services to assist them in selecting and purchasing
McDonalds food. This lack of accessibility to the blind is particularly offensive given the
sophistication and size of McDonalds Corporation as well as the advanced technological society
in which we live today.
5.

By failing to make its restaurants accessible to blind persons, McDonalds is

violating basic equal access requirements under federal law. Congress provided a clear and
national mandate for the elimination of discrimination against individuals with disabilities when
it enacted the Americans with Disabilities Act. Such discrimination includes barriers to full
integration, independent living, and equal opportunity for persons with disabilities, including
those barriers created by drive thru restaurants and other public accommodations that are
inaccessible to blind and visually impaired persons.
JURISDICTION
6.

This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C.

1331 and 42 U.S.C. 12188, for Plaintiffs' claims arising under the Americans with Disabilities
Act, 42 U.S.C. 12101, et seq.
VENUE
7.

Venue is proper in the Northern District pursuant to 28 U.S.C. 1391 (b)-(c).

8.

Defendant McDonalds owns, operates, and leases thousands of restaurants in

Illinois, including several hundred in the Northern District of Illinois. Defendants are committing
the acts alleged herein in the Northern District of Illinois. A substantial part of the acts and
omissions giving rise to Plaintiff's claims have occurred in the Northern District of Illinois.

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Defendant is a corporation based in this District and it dictates the discriminatory policies that
are the subject of this lawsuit while located in this District.
PARTIES
9.

Plaintiff Scott Magee is a citizen of Louisiana and resident of Metairie, Louisiana.

Plaintiff Magees eyesight has been compromised by a condition known as macular

degeneration. This condition renders him legally blind and as such he is a member of a protected
class under the Americans with Disabilities Act. Plaintiff uses the terms "blind person" or "blind
people" and "the blind" to refer to all persons with visual impairments who meet the legal
definition of blindness in that they have a visual acuity with correction of less than or equal to 20
x 200.
10.

Defendant McDonalds is an Oak Brook, Illinois-based, for-profit corporation

organized under the laws of the State of Delaware. Defendant owns, operates and/or leases
restaurant buildings at tens of thousands of locations throughout the United States. Plaintiffs
seek full and equal access to the accommodations, advantages, facilities, privileges, and services
provided by Defendants restaurant buildings throughout the United States.
FACTUAL ALLEGATIONS
11.

Plaintiff incorporates all of the preceding paragraphs.

12.

Defendant McDonalds is one of the largest and most well-known fast food

restaurant chains in the world. It boasts over fourteen thousand restaurants in the United States
and characterizes itself as the worlds leading global food service retailer.1
13.

Some of Defendants restaurants are operated by the Defendant, others are

operated by franchisees.
1

http://www.aboutmcdonalds.com/mcd/investors/company_profile.html (last accessed May

25th, 2016)
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14.

Even if a particular McDonalds restaurant is operated by a franchisee, Defendant

McDonalds Corporation leases and/or owns the restaurant building itself.

15.

McDonalds restaurants offer two kinds of service: counter service and drive thru

service.
16.

Counter service is available to patrons who physically enter McDonalds

restaurants. Patrons approach a sales counter and relay their orders to McDonalds
representatives who process payment and serve the food.
17.

Counter service is not available to McDonalds customers when a restaurant is

closed, or after hours, or any other time during which a particular McDonalds restaurant does
not make its interior accessible to the public.
18.

McDonalds restaurants also provide drive-thru service. Drive thru service is

provided via specialized automobile driveway lanes which stretch around Defendants
restaurants.

In order to obtain drive-thru service McDonalds customers maneuver their

automobiles into the drive-thru lane and then relay their food order to a McDonalds
representative via microphone. Customers then drive their car further along the lane and retrieve
their food from a series of windows on the side of Defendants restaurants.
19.

Unlike counter service, McDonalds drive-thru service is available to customers

during periods of time when the interior of a given McDonalds restaurant is closed to the public.
20.

McDonalds has been using drive-thrus since 1975.2 Drive-thrus are specifically

utilized by the Defendant to maximize the accessibility of their products to customers and thus
drive profit margins.

http://www.mcdonalds.com/us/en/our_story/our_history.html (last accessed May 25, 2016)

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21.

One of the hallmarks of McDonalds success has been its adaptability. In 2015

alone, McDonalds changed the length of time it toasts its buns,3 changed the manner in which it
sears its hamburger patties,4 switched from margarine to butter in the preparation of its signature
breakfast dish, the Egg McMuffin, 5 introduced three all new sandwiches (buttermilk chicken, 6
artisan grilled chicken, 7 and sirloin burger 8 ), as well as an interactive customizable burger
option. 9 It also transitioned to cage free eggs 10 , and chicken that is free from antibiotics
important to human medicine 11 and, to the awe of McDonalds aficionados everywhere,
opened up the breakfast menu for all day service.12 Each of these changes is accompanied by in-

http://fortune.com/2015/05/27/mcdonalds-toasted-bun/

http://fortune.com/2015/05/27/mcdonalds-toasted-bun/

http://news.mcdonalds.com/Corporate/news-stories/2013/McDonalds-to-Fully-Transition-toCage-Free-Eggs
6

http://news.mcdonalds.com/Corporate/news-stories/2013/McDonalds-to-Fully-Transition-toCage-Free-Eggs
7

http://news.mcdonalds.com/Corporate/news-stories/2013/McDonalds-to-Fully-Transition-toCage-Free-Eggs
8

http://bigstory.ap.org/article/d9ca93e5160a4882aec6759bdf649cbf/mcdonalds-roll-out-biggerburgers
9

http://www.reuters.com/article/2015/04/29/us-mcdonalds-burger-customidUSKBN0NK1YQ20150429
10

http://news.mcdonalds.com/Corporate/news-stories/2013/McDonalds-to-Fully-Transition-toCage-Free-Eggs
11

http://news.mcdonalds.com/Corporate/news-stories/2013/McDonalds-to-Fully-Transition-toCage-Free-Eggs
12

http://seekingalpha.com/article/3595666-mcdonalds-mcd-ceo-steve-easterbrook-on-q3-2015results-earnings-call-transcript?page=2
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depth market studies checking their efficacy and profitability, including a customer feedback
system which tracks over 10 million customer observations every year.13
22.

McDonalds history of adapting to increase profits can also be seen in its drive-

thrus. As recently as the spring of 2015, Defendant improved the speed of its drive-thrus by
simplifying and reducing the drive-thru menu to include only the most profitable and easilyprepared food items14 and also implemented new operational procedures and training regimens to
ensure the accuracy of orders placed at its drive-thrus. 15 McDonalds also continues to
incorporate double-laned drive-thrus, to make its products more accessible to customers.16
23.

All of McDonalds precision calibrations and shrewd business planning is

consummate with its status as an international business monolith. Curiously absent, however,
from McDonalds continued adaptation, is any concern whatsoever for the accessibility of their
late night drive-thrus to the disabled.
24.

Despite the fact that Defendants self-proclaimed vision is to become a modern,

progressive burger company delivering a contemporary customer experience 17 the blind are
totally unable to access any of Defendants products or services at late night, drive-thru
restaurants.

13

http://seekingalpha.com/article/3595666-mcdonalds-mcd-ceo-steve-easterbrook-on-q3-2015results-earnings-call-transcript?page=2
14

http://seekingalpha.com/article/3352105-mcdonalds-mcd-ceo-steve-easterbrook-on-q2-2015results-earnings-call-transcript?page=3
15

http://seekingalpha.com/article/3352105-mcdonalds-mcd-ceo-steve-easterbrook-on-q2-2015results-earnings-call-transcript?page=3
16

http://seekingalpha.com/article/3352105-mcdonalds-mcd-ceo-steve-easterbrook-on-q2-2015results-earnings-call-transcript?page=3
17

http://www.aboutmcdonalds.com/mcd/investors/company_profile.html
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The Blind and Late Night Drive-Thru

25.

Many thousands of McDonalds restaurants remain open until very late in the

evening and early morning, serving food via the drive-thru. Late-night service is available
exclusively through the drive-thru and customers are not permitted to physically enter the
McDonalds to order food.
26.

The blind are unable to access McDonalds late night drive-thru service.

27.

McDonalds specifically prohibits pedestrians from walking up to the drive-thru

windows and ordering food.

28.

McDonalds company policy is to refuse service to any pedestrian who walks up

to the drive-thru attempting to order food.

29.

McDonalds restaurants that are open late night via the drive-thru window do not

offer any means for pedestrians to order food.

30.

The blind are unable to drive, and so they are unable to navigate a car into the

drive-thru.
31.

Because the blind are unable to drive or walk up to the drive-thru window, and

because McDonalds interiors are closed during late night operating times, the blind are totally
barred from independently using or enjoying the goods and services provided by McDonalds
late night drive-thru restaurants.
32.

There are a variety of modest accommodations Defendant could make that would

allow blind people to access to McDonalds late night restaurant services. However McDonalds
does not employ any such policy or practice.

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Mr. Magees Experience

33.

Plaintiff Magee encountered one of Defendants restaurants near his home in

Metairie, Louisiana during McDonalds late-night hours in August of 2015.

34.

Mr. Magee has visited this particular McDonalds restaurant multiple times before

and he reasonably expects to visit there again in the future.

35.

On the date in question, Mr. Magee approached the McDonalds restaurant and

attempted to enter its interior for the purpose of purchasing goods and services. However, the
lobby doors were locked and Mr. Magee was unable to enter.
36.

Although the restaurant interior was closed, Mr. Magee knew from past

experience and personal observation that McDonalds was continuing to serve food via its drivethru.
37.

Mr. Magee then attempted to walk up to the drive-thru.

38.

The McDonalds personnel therein refused service to him, laughed, and told him

to go away.
39.

Mr. Magee felt ashamed of his inability to access the McDonalds services.

40.

Mr. Magee has suffered this experience at other McDonalds restaurants in the

past. Mr. Magee has never been able to independently access any of McDonalds late-night
drive-thrus at various locations.
41.

Defendant thus provides accommodations, advantages, facilities, privileges, and

services to customers that contain access barriers. These barriers deny full and equal access to
Plaintiff, who would otherwise be able to fully and equally enjoy the benefits and services of
McDonalds restaurants.

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CLASS ACTION ALLEGATIONS

42.

Plaintiff seeks certification of the following Class pursuant to Fed. R. Civ. P.

23(a) and 23(b)(2):

"all legally blind individuals who have been and/or are being
denied access to McDonalds late night restaurant services in
the United States."
43.

The persons in the class are so numerous that joinder of all such persons is

impractical and the disposition of their claims in a class action is a benefit to the parties and to
the Court.
44.

This case arises out of Defendants common policy and practice of denying blind

persons access to the goods and services of its restaurants. Due to Defendants policy and
practice of failing to remove access barriers, blind persons have been and are being denied full
and equal access to McDonalds restaurants and the goods and services they offer.
45.

There are common questions of law and fact involved affecting the parties to be

represented in that they all are legally blind and have been and/or are being denied their civil
rights to full and equal access to, and use and enjoyment of the accommodations, advantages,
facilities, privileges, and services provided at Defendants restaurants due to the lack of
accessible features at such facilities, as required by law for persons with disabilities.
46.

The claims of the named Plaintiff are typical of those of the class. Plaintiff will

fairly and adequately represent and protect the interests of the members of the Class. Plaintiff has
retained and are represented by counsel competent and experienced in complex and class action
litigation.

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47.

Class certification of the claims is appropriate pursuant to Fed. R. Civ. P. 23(b)(2)

because Defendants have acted or refused to act on grounds generally applicable to the Class,
making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class
as a whole.
48.

References to Plaintiff shall be deemed to include the named Plaintiff and each

member of the class, unless otherwise indicated.

FIRST CAUSE OF ACTION
(Violation of 42 U.S.C. 12181, et seq. - Title III of the Americans with Disabilities Act)
(on behalf of Plaintiff and the Class)
49.

Plaintiff incorporates by reference the foregoing allegations as if set forth fully

50.

Section 12182(a) of Title III of the Americans with Disabilities Act of 1990, 42

herein.

U.S.C. 12101 et seq., (hereinafter ADA) provides:

No individual 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 by any person who owns,
leases (or leases to), or operates a place of public accommodation.
51.

Title III goes further in defining the specific types of discrimination that places of

public accommodation are prohibited from doing. This includes the:

failure to take such steps as may be necessary to ensure that no individual with a
disability is excluded, denied services, segregated, or otherwise treated differently
because of the absence of auxiliary aids and services, unless the entity can
demonstrate that taking such steps would fundamentally alter the nature of the
good, services, facility, privilege, advantage, or accommodation being offered or
would result in an undue burden.
52.

As discussed in Factual Allegations above, McDonalds is a monolithic

international conglomerate that is more than capable of adapting its policies and practices to
accommodate the blind and the complaints made herein. However, McDonalds chooses not to

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allow their late night drive-thru restaurants made independently usable by customers who are
blind or have low vision. Consequently, McDonalds must furnish auxiliary aids or services that
enable such individuals to equally and independently benefit from this payment option unless
doing so would result in a fundamental alteration or undue burden. See 28 C.F.R.
36.303(a),(c)(1).
McDonalds restaurants are public accommodations
53.

McDonalds restaurants are restaurants, and, therefore places of public

accommodation with the definition of Title III of the ADA. 42 U.S.C. 12181(7)(B)
54.

McDonalds restaurants are sales establishments, and, therefore places of public

accommodation with the definition of Title III of the ADA. 42 U.S.C. 12181(7)(E)
55.

Defendants restaurants are places of public accommodation that are subject to

compliance with the ADA.

56.

Under Section 12182(a) and (b)(1) of Title III of the ADA, it is unlawful

discrimination to deny individuals with disabilities or a class of individuals with disabilities the
opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages,
or accommodations of a place of public accommodation.
57.

Under Section 12182(a) and (b)(1) of Title III of the ADA, it is unlawful

discrimination to deny individuals with disabilities or a class of individuals with disabilities an

opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages,
or accommodations of a place of public accommodation, which is equal to the opportunities
afforded to other individuals.
58.

Under Section 12182(b)(2) of Title III of the ADA, unlawful discrimination also

includes, among other things: a failure to make reasonable modifications in policies, practices, or

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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; and a failure to take such steps as
may be necessary to ensure that no individual with a disability is excluded, denied services,
segregated, or otherwise treated differently than other individuals because of the absence of
auxiliary aids and services, unless the entity can demonstrate that taking such steps would
fundamentally alter the nature of the good, service, facility, privilege, advantage, or
accommodation being offered or would result in an undue burden;
59.

Patrons of Defendants restaurants who are blind (including the Plaintiff and the

Plaintiff Class) have been denied full and equal access to those public accommodations; and they
have not been provided services that are provided to other patrons who are not disabled and/or
they have been provided services that are inferior to the services provided to non-disabled
patrons. Defendants have failed to take any steps to remedy their discriminatory conduct. These
violations are ongoing. Unless the Court enjoins Defendants from continuing to engage in these
unlawful practices, Plaintiffs and members of the class will continue to suffer irreparable harm.
60.

The acts alleged herein constitute violations of Title III of the Americans with

Disabilities Act of 1990, 42 U.S.C. 12101 et seq., and the regulations promulgated
thereunder.
61.

The actions of Defendant were and are in violation of the Americans with

Disabilities Act 42 U.S.C. 12181, et seq., and therefore Plaintiff is entitled to injunctive relief
to remedy the discrimination as well as attorneys fees.

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SECOND CAUSE OF ACTION

(Declaratory Relief)
(on behalf of Plaintiff and the Class)
62.

Plaintiff incorporates by reference the foregoing allegations as if set forth fully

63.

An actual controversy has arisen and now exists between the parties in that

herein.

Plaintiff contends, and that Defendant denies, that Defendant, by providing inaccessible glass
front vending machines throughout the United States, fails to comply with applicable laws
including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C.
12181, et seq.
64.

A judicial declaration is necessary and appropriate at this time in order that each

of the parties may know their respective rights and duties and act accordingly.
WHEREFORE, Pursuant to 42 U.S.C. 12181, et seq. and the remedies, procedures,
and rights set forth and incorporated therein Plaintiffs request relief as set forth below.
RELIEF REQUESTED
Plaintiff prays for a judgment as follows:
1. A permanent injunction to prohibit Defendant from violating the Americans with
Disabilities Act, 42 U.S.C. 12181, et seq.;
2. A permanent injunction requiring Defendant to take the necessary steps to make
McDonalds late night drive-thru restaurants that are provided throughout the United
States readily accessible and usable by blind and visually impaired individuals;
3. A declaration that Defendant is owning, maintaining and/or operating its restaurants
in a manner which discriminates against the blind and visually impaired and which
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fails to provide access for persons with disabilities as required by the Americans with
Disabilities Act, 42 U.S.C. 12181, et seq.
4. An order certifying this case as a class action under Fed. R. Civ. P. 23(a) & (b)(2) and
appointing Plaintiff as Class Representative and his attorneys as Class Counsel;
5. Plaintiffs reasonable attorneys fees, expenses, and costs of suit as provided by law;
6. Such other and further relief as the Court deems just and proper.
JURY DEMAND
Plaintiffs demand trial by jury on all issues for which a jury trial is allowed.

May 26, 2016

Respectfully submitted,
/s/ Roberto Luis Costales
_________________________________
Roberto Luis Costales
3801 Canal Street, Suite 207
New Orleans, LA 70119
Louisiana Bar #33696
Telephone: (504) 914-1048
Facsimile: (504) 272-2956
[email protected]

/s/ William H. Beaumont

________________________________
William H. Beaumont
3801 Canal Street, Suite 207
New Orleans, LA 70119
Louisiana Bar #33005
Telephone: (504) 483-8008
[email protected]

Attorneys for Plaintiff

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