A federal appeals court has re-opened a lawsuit brought by a family over a gluten-free chicken sandwich and an alleged failure by the Colonial Williamsburg Foundation to accommodate a boy with gluten insensitivity. The appeals court vacated a lower court’s ruling on the suit.
On May 31, the Fourth U.S. Circuit Court of Appeals vacated a Newport News federal court judge’s decision to close a case against the foundation and instead said the case should be decided by a jury, according to the majority opinion written by Circuit Court Judge Albert Diaz.
The court’s decision also means the family does not have to pay Colonial Williamsburg for its court costs — a previous ruling awarded the foundation about $6,500 for costs.
Colonial Williamsburg’s spokesman Joe Straw said the foundation was disappointed with the court’s decision.
“We have a long and successful track record of preparing gluten free meals for our guests and believe doing so is a reasonable accommodation, as noted by the dissenting judge,” Straw said in a statement. “We are analyzing the decision and considering our options.”
The boy at the heart of the suit said in a statement through his family’s attorney that he was overjoyed with the decision.
“I think it means (children with food allergies) have the freedom to be themselves and not have to worry about other people telling them how to be themselves or that they cannot be themselves because of their disability,” the boy said in the statement.
The lawsuit, filed in July 2017, is centered on a family’s accusation that Colonial Williamsburg did not reasonably accommodate their son when he and his father sat down for lunch during a school field trip from Maryland at Shields Tavern on May 11, 2017, according to the court filings.
The boy cannot consume gluten and his father unpacked a cooler with gluten-free food prepared at home, the filings said. Restaurant staff told the father the boy could not eat the lunch in the restaurant because it was a health code violation.
The restaurant’s head chef offered to make the pair a gluten-free meal but the father declined, according to the court documents. The father did eat a salad at the restaurant and he and his son ate their packed sandwiches on the back patio of the tavern.
A federal district court judge ruled in favor of Colonial Williamsburg on June 1, 2018. Before the end of that month, the boy’s family appealed their case to the higher circuit court of appeals, according to court documents.
“(T)he district court incorrectly overlooked the testimony that J.D. repeatedly became sick after eating purportedly gluten-free meals prepared by commercial kitchens,” Judge Diaz wrote. “Until a jury resolves the disputes surrounding the nature and extent of J.D.’s disability, we cannot determine if the accommodation Shields Tavern offered, as good as it may be, fully accounted for his disability.”
Diaz wrote that the boy’s condition could be somewhat likened to diabetes, and that the court was not sure if the restaurant’s attempt to accommodate the father and son with a “like experience,” as required under the Americans with Disabilities Act, was enough.
The judge said if the boy and his father had been allowed to eat their sandwiches inside the restaurant, instead of on its patio, they’d likely have had the same experience as the child’s peers on the field trip.
“(The boy) argues that his request is reasonable because he asked only that Shields Tavern let him eat his prepared meal,” Diaz said. “His request didn’t cost anything; nor did it require Shields Tavern to do anything.”
The family’s attorney Mary C. Vargas echoed Diaz’s opinion in an email and said the family paid full price for the meal “to just be in the room and enjoy everything Colonial Williamsburg had to offer. Including him would have cost (Colonial) Williamsburg nothing.”
The court filings indicate Colonial Williamsburg was asked to provide two gluten-free lunches for the field trip and billed the school for the lunches, but the father notified the school that he and his son would eat a packed lunch.
The boy’s family has had trouble at multiple restaurants that serve gluten-free food, which have instead served the boy food with gluten in it, according to the court documents.
The dissenting opinion in the case, Judge J. Harvie Wilkinson III called the majority opinion “terrible.”
“It forces restaurants to allow customers to bring in food prepared off the premises, in who knows what conditions, containing who knows what ingredients,” Wilkinson wrote. “It exposes the restaurants’ patrons to public health risks, subjects the restaurants themselves to legal liability, and deprives servers of much needed tips.”
Judge Wilkinson said the majority opinion put unreasonable expectations on frontline managers at restaurants and left unanswered questions for the law.
“What criteria are (restaurant managers) supposed to use in navigating the tension between the ADA’s requirements and public health law? Which privately prepared meals must they allow and which may they refuse?”
In a further critique, Wilkinson derided the broad ruling of his peers.
“The majority wouldn’t even require advance notice from customers in (the boy)’s position,” Wilkinson said. “(M)eaning that managers will have to evaluate the disruption and the safety hazard of a customer’s outside meal on the fly, with the specter of litigation hanging overhead.”
There have been no other new filings in the case as of Monday.
Roberts can be reached at 757-604-1329, by email at firstname.lastname@example.org and on Twitter @SPRobertsJr.