Washington State Human Rights Commission

Court of Appeals Division I

State of Washington

Opinion Information Sheet

Docket Number: 55288-1-I

Title of Case: STORMS, APP. VS FRED MEYER STORES, INC, ET AL, RES.

File Date: 09/26/2005

SOURCE OF APPEAL

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Appeal from Superior Court of King County

Docket No: 02-2-32731-1

Judgment or order under review

Date filed: 11/05/2004

Judge signing: Hon. Charles W Mertel

JUDGES

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Authored by C. Kenneth Grosse

Concurring: Ann Schindler

Ronald Cox

COUNSEL OF RECORD

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Counsel for Appellant(s)

Lonnie G. Davis

Wa Coalition of Citizens w Disabilities

4649 Sunnyside Ave N Ste 100

Seattle, WA 98103-6952

Counsel for Respondent(s)

West Harrison Campbell

Hoffman Hart & Wagner

PO Box 1641

Yakima, WA 98907-1641

Janet M Schroer

Hoffman Hart & Wagner

1000 SW Broadway

20th Flr.

Portland, OR 97205

Cecil A. Reniche-Smith

Hoffman, Hart & Wagner

1000 SW Broadway

Ste 2000

Portland, OR 97205-3072

Amicus Curiae on behalf of Washington Protection & Advocacy System

Julie Lynn Wilchins

Washington Protection & Advocacy System

315 5th Ave S Ste 850

Seattle, WA 98104-2691

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SHERRY W. STORMS, )

) No. 55288-1-I

Appellant, )

) DIVISION ONE

v. )

) PUBLISHED OPINION

FRED MEYER STORES, INC., KEVIN )

ELICKER, and ROBERT WEIDEMEYER, )

)

Respondents. ) FILED: September 26, 2005

GROSSE, J. - A dog qualifies as a service animal within the meaning of the

applicable state statute and administrative code provision if it is trained

to assist or accommodate a person's sensory, mental, or physical

disability. This court has interpreted this provision to require that

there be some evidence of individual training that sets the animal apart

from the ordinary pet, a requirement to which we adhere. And, because

there was testimony at trial that Sherry Storms' dog was trained to put

herself between Storms and other people so as to keep an open area around

Storms and alleviate her anxiety (a symptom of her post-traumatic stress

syndrome), we reverse the trial court. This was sufficient evidence to

establish a prima facie case of discrimination against Fred Meyer for

refusing to allow her to shop accompanied by her dog.

FACTS

Sherry Storms suffers from multiple psychiatric conditions for which

she receives treatment. Her conditions include post-traumatic stress

disorder (PTSD) and recurrent depressions, and she has suffered from these

conditions for approximately 30 years. One symptom of her PTSD is that she

experiences a debilitating degree of anxiety that makes it difficult for

her to go out in public.

In February 2001, acting on the recommendation of her doctor, Storms

obtained a Rottweiler dog named Brandy. Storms intended to use Brandy as a

service animal. Brandy underwent training in a 30-day in-house boarding

program at the Academy of Canine Behavior (Academy), a 4-week follow-up

course at the Academy and an intermediate follow-up course at PetSmart. At

the Academy, Brandy underwent a temperament evaluation to make sure she was

gentle and patient enough to be a service dog. Then Brandy went through

basic obedience training which included elemental commands such as to sit,

stay, lie down, come on command, and walk on a leash. Storms also gave the

dog additional training.

At trial, Storms' ex-husband, Carl Garrison, testified that Brandy was

'trained to put herself between Sherry and other people to keep, more or

less, an open area around Sherry to control her anxiety'1 and that '{t}he

dog more or less leans on {Storms}, and {Brandy} touches {Storms} in a

certain manner that alleviates her anxiety.'2

On or about August 10, 2001, Storms entered a Fred Meyer store for the

purposes of obtaining some cheese that was on sale. She was accompanied by

Garrison and her dog Brandy. Brandy was on a leash and collar, with no

other identification. After entering the store, Storms went to the

customer service desk to obtain a coupon for the sale cheese. A customer

complained to Fred Meyer staff about the presence of the dog in the store.

Fred Wedemeyer, the assistant food manager, responded to the complaint and

approached Storms to inquire about the dog.

Storms asserted to Wedemeyer that Brandy was a service animal and

showed him a laminated card as proof. Storms claims that Wedemeyer then

insisted that she leave the store. Subsequently, Wedemeyer called the

manager on duty, Kevin Elicker, who attempted to address the situation.

During this time, Brandy was on a leash and was not threatening or barking.

Garrison testified at trial that when Elicker arrived and it was getting

crowded, 'Brandy did what she's supposed to do, and she got up and more or

less, walked around Sherry.'3 Elicker also noticed Brandy was 'circling'

Storms.4

The result of the discussion with Elicker was that Storms was not

allowed to shop on her own or select her own purchase. Instead, a Fred

Meyer employee was sent to get Storms' purchase and brought it to the

service desk. Storms claims that the management did this in an effort to

get her out of the store as quickly as possible.

On November 21, 2002, Storms filed a lawsuit complaining that Fred

Meyer's refusal to allow her to remain in the store with Brandy constituted

an unfair practice under RCW 49.60.215, an unfair practice in trade or

commerce under RCW 19.86.020, and was a violation of 42 U.S.C. section

12182 and 45 C.F.R. section 36.303. At trial, she claimed to have suffered

emotional distress, mental anguish and aggravation of her underlying

psychiatric conditions as a result of the incident.

At the close of Storms' case, the defendants moved to dismiss the case

on grounds that Storms failed to fulfill her burden of proof to show that

Brandy was a service animal within the meaning of RCW 49.60.040(23) and WAC

162-26-040 and that she failed to establish a prima facie case under RCW

49.60.215 for discrimination. The trial court granted the defendants'

motion and concluded that:

3. Plaintiff's Rottweiler, Brandy, was not an animal trained to assist or

accommodate plaintiff's mental disability within the meaning of RCW

49.60.040 and WAC 162-20-040.

4. Plaintiff was not subject to disparate treatment by the defendant,

Fred Meyer Stores, Inc., and its employees due to her disability, and

plaintiff was not treated differently than any other person entering the

Fred Meyer premises with an animal, therefore defendants did not

discriminate against the plaintiff based upon her mental disability or use

of a medical service animal, in violation of RCW 49.60 et seq.5

Storms appeals.

ANALYSIS

RCW 49.60.215 prohibits discrimination against any person in a place

of public accommodation based on the use of a service animal by a disabled

person.6 'Service animal' is defined under RCW 49.60.040(23) as 'an animal

that is trained for the purpose of assisting or accommodating a disabled

person's sensory, mental or physical disability.' Under WAC 162-20-040 a

service animal is defined as 'an animal that is trained for the purpose of

assisting or accommodating a person's sensory, mental, or physical

disability.'

The main issue here is whether Brandy was an animal trained for the

purpose of accommodating Storms' disability.7 In Timberlane Mobile Home

Park v. The Human Rights Commission,8 we recently addressed a similar issue

in the context of housing. In Timberlane, Candida Campbell alleged that

she was unfairly expelled from her trailer because of her disability and

the use of a service animal. The administrative law judge (ALJ) found in

Campbell 's favor, but in doing so determined that (1) although her dog

Spicey did not receive training to do so, she would 'freak out' and get

Campbell 's brother when Campbell had a severe migraine incident, and (2)

while it is possible that Spicey would not have been trainable as a service

animal, Spicey nevertheless assisted Campbell in alleviating her migraine

condition by bringing her help when she was unable to help herself.9 We

reversed, and determined that these factual findings were at odds with its

legal conclusion that Spicey was a service dog.

Specifically, we noted that in order to be considered a service animal

under the statute 'there must be some evidence of individual training to

set the service animal apart from the ordinary pet.'10 Because the ALJ

specifically found that Spicey had not been trained to assist Campbell and

may not have even been trainable as a service animal, we found the ALJ's

conclusion that Spicey was a service animal to be inconsistent and in

error.

Our reasoning in Timberlane was based on the case Prindable v.

Association of Apartment Owners of 2987 Kalakaua.11 In Prindable, the

plaintiff suffered from depression, anxiety and dizziness and averred that

his dog Einstein had been individually trained to provide him with

emotional support and alert him to any unusual circumstances. The District

Court of Hawaii concluded that the plaintiff's '{u}nsupported averments'

and 'slight anecdotal evidence of service' were not enough to survive a

motion for summary judgment on the issue of whether his dog was a service

animal, especially in light of the fact that plaintiff's counsel admitted

to the court that Einstein had not been individually trained and possessed

no special skills.12 The Prindable court stated, 'Plaintiffs needed

something more an affidavit detailing Einstein's training, a declaration

from Einstein's veterinarian or a certificate from any licensed training

school to survive summary judgment.'13

In the case at bar we have something more than the unsupported

averments of individual training proffered by Prindable, but less than the

level of evidence suggested by the Prindable court. Here, Brandy underwent

training at the Academy of Canine Behavior and PetSmart.14 When asked what

kind of training Brandy received, Storms stated, 'After they did her

evaluation, temperament evaluation to make sure that she was gentle enough

and patient enough to be a service dog, she went through basic training,

just plain obedience basic training.'15 When asked what Brandy was taught

in basic training Storms replied, '{s}imple commands most of which she

already knew, set, stay, wait, down, off, leave it, come, how to walk on a

leash without pulling.'16

Her ex-husband, Carl Garrison, also was asked about Brandy's training

and stated, 'The dog is trained to put herself between Sherry and other

people to keep, more or less, an open area around Sherry to control her

anxiety' and that Brandy also leans on Storms, and touches her in a certain

manner that alleviates her anxiety.17 And when asked about Brandy's

behavior in the store, Garrison testified that 'when the second manager

came up and it was getting a bit crowded, Brandy did what she's supposed to

do, and she got up and more or less, walked around Sherry.'18 Kevin

Elicker, the store manager, also testified that he had observed Brandy

'circling' Storms during their conversation at the customer service desk.19

Reading the facts in the light most favorable to Storms, Storms

obtained Brandy at the recommendation of her doctor for the purposes of

assisting her with her disability. She then sent Brandy to be trained at

the Academy of Canine Behavior and PetSmart where Brandy was screened for

her fitness to be used as a service dog, and then was given basic and

intermediate obedience training. At some point, Brandy was trained to put

herself in between Storms and others in order to keep an open area around

Storms to help her control her anxiety. Brandy exhibited such behavior

while in Fred Meyer.

This is evidence of individual training to set Brandy apart from the

ordinary pet and we find that it is enough to survive a motion for a

directed verdict. Garrison's testimony that Brandy had been specifically

trained to help Storms with her particular disability by placing herself in

between Storms and others in a way that alleviated her anxiety, when

corroborated by Elicker's testimony that Brandy engaged in such behavior by

circling Storms while in the store, meets the test as some evidence of

individual training to set Brandy apart from the ordinary pet.

Having determined that there was sufficient evidence to establish that

Brandy was a service dog, we also find that there was sufficient evidence

to establish that the defendants' violated RCW 49.60.215 by not allowing

Storms to do her own shopping within the store because she was accompanied

by a service animal. The trial court specifically found that Storms 'was

not allowed to shop on her own or select her purchase.'20 This could

certainly qualify as an act resulting in a 'restriction' based on the use

of a service animal by a disabled person prohibited under RCW 49.60.215.

For the above reasons, we reverse and remand for a trial.

WE CONCUR:

1 Report of Proceedings (RP) ( 10/26/04) at 6.

2 RP ( 10/26/04) at 7.

3 RP ( 10/26/04) at 9.

4 RP ( 10/25/04) at 116.

5 Clerk's Papers (CP) at 15.

6 RCW 49.60.215 states in pertinent part:

It shall be an unfair practice for any person . . . to commit an act which

directly or indirectly results in any distinction, restriction, or

discrimination; . . . except for conditions and limitations established by

law and applicable to all persons, regardless of . . . the use of a trained

dog guide or service animal by a disabled person.

7 We review a trial court's order granting a CR 50(a) motion by applying

the same standard as the trial court, that is, such a motion should only be

granted when it is clear that the evidence and the reasonable inferences,

viewed in the light most favorable to the nonmoving party, are insufficient

to sustain a verdict for the nonmoving party. Hizey v. Carpenter, 119

Wn.2d 251, 271-72, 830 P.2d 646 (1992).

8 Timberlane Mobile Home Park v. The Human Rights Comm'n, 122 Wn. App. 896,

95 P.3d 1288 (2004).

9 Timberlane, 122 Wn. App. at 900-01.

10 Timberlane, 122 Wn. App. at 900-01 (citing Prindable v. Ass'n of

Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245, 1256 (D. Haw.

2003)).

11 Prindable, 304 F. Supp. 2d 1245.

12 Prindable, 304 F. Supp. 2d at 1256-57.

13 Prindable, 304 F. Supp. 2d at 1257.

14 It is clear from the record that Storms' counsel offered as an exhibit a

statement prepared at Storms' request from the Academy that Brandy had

completed her one-month board and train program, and beyond basics

obedience class, but the parties have failed to designate the exhibit for

our review. See RP ( 10/26/04) at 26-7.

15 RP ( 10/26/04) at 27.

16 RP ( 10/26/04) at 28.

17 RP ( 10/26/04) at 6-7.

18 RP ( 10/26/04) at 9.

19 RP ( 10/25/04) at 116.

20 CP at 14.

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