Circuit rejects ADA service dog claim

You are going to see more service animals over the next few years, as returning war veterans with post-traumatic stress and other disabilities use them to navigate civilian life. The Americans with Disabilities Act protects the use of service animals, but the contours of these claims are still unfolding. (The U.S. Attorney's office in NYC is pursuing claims like this, including one in which I played a minor role). Taking a stab at it, the Court of Appeals has rejected an ADA claim that a restaurant mistreated a "manifestly disabled" woman whose service animal was an unwanted guest at this establishment.

The case is Krist v. Kolombos Restaurants, Inc., decided on July 24. Krist was a regular at the Coopertown Diner, which she described as a Cheers-like place "where everyone knew your name." In 1998, she continued frequenting the restaurant, except that instead of crutches and other assistance that no one at the restaurant cared about, she was bringing her service dog. Things changed for Krist. Patrons and staff did not like the dog. One waiter stopped eating lunch with Krist. Other employees snubbed her and treated her rudely. Customers behaved similarly. Here's a sample of what happened:

Krist also testified that there were incidents in which [restaurant owners] Batas or Michael Kolombos "yelled" at her. Thus, on her second visit to Coopertown with the dog, a few days after the first, Batas, from behind the counter on the opposite side of the restaurant, stared at the dog and made growling sounds. Krist testified that when the dog then made a sound that Krist said was not a bark but sounded like "boof," Batas yelled at her that the dog was barking and he ordered her to leave the restaurant. She testified that on another occasion in December 2008, after she took the dog out from under her table to show it to another customer, Batas yelled at her, complaining that she was playing with the dog.

After Batas yelled at her on her second visit to Coopertown with the dog, Krist had complained to Michael Kolombos. Krist testified that Michael Kolombos said "[t]hat I was welcome" to have the dog in the restaurant but that "I should sit in the front of the store" and should "[e]at my breakfast and go." Thereafter, Krist began going to the restaurant less frequently; she went approximately every other day. She sat at a front table perhaps three times but then resumed sitting in the back in her favorite booth. She would arrive at about 9 a.m. and stay until around noon; but, she testified, "I didn't [stay to] eat lunch because no one"--meaning "Joe [Mugno] or any of his sons or any of the other waiters or anybody"--"would eat lunch with
me so there was no sense in staying."

Krist also testified that there was an incident in February 2009 and another in the summer of 2009 in which Batas and Michael Kolombos, respectively, yelled at her for having the dog lie  beside her chair or her booth, rather than under the table, and potentially imperil customers and waiters. Batas and Michael Kolombos similarly testified that on those occasions, when they asked Krist to move the dog, Krist had put the dog in the aisle.

Krist stopped going to the Coopertown Diner and then sued under Title III of the ADA, which regulates private establishments that are open to the public. Judge Daniels rejected her claim after a bench trial, and the Court of Appeals (Kearse, Carney and Wallace), after deferring to the district court's factual findings, affirms and finds there was no discrimination, for the following reasons:

First, and quite significantly, the Court of Appeals says that "we are inclined to agree with Krist that a Title III plaintiff who proves that she is disabled within the meaning of the ADA and that the defendant operates a place of public accommodation that failed to make reasonable modifications in its policies, etc., as necessary to provide her with the goods and services afforded by the defendant need not also prove that discrimination was intended." But while no intentional discrimination is required under Title III, that ruling is not enough to help Krist. The district court did not rule against her on the basis that the defendant did not intend to discriminate.

Second, although plaintiff stopped going to the diner because of the rudeness, the Court of Appeals upholds the district court's findings that "Krist failed to establish by a preponderance of the evidence that she was excluded from Coopertown after she acquired her service dog (the only period of which she complains); or that her service dog was excluded; or that her access to Coopertown, with or without the dog, was restricted." Relatedly, Krist was not actually excluded from the restaurant after she got the dog. "Krist frequented the restaurant with the dog in a manner that was 'not significantly different' from her prior custom was supported by its findings that, over a period of some 10 months, Krist went to the restaurant with the dog 'dozens and dozens' of times." Had the diner actually kicked her out of the place because of the dog, she might have a claim. But she was not actually kicked out.

Third, while the restaurant owners sometimes yelled at Krist, the district court had a factual basis to find that the yelling was not intended to drive her from the establishment. This holding shows that even customers with service dogs have to respect the place. The Court of Appeals writes,

the last two "yelling" incidents described by Krist occurred in February and September 2009 when Batas and Michael Kolombos, respectively, yelled at her across the restaurant for having put the dog in the aisle, potentially impeding customer traffic and waiter movements. One was an occasion when Krist was sitting at a table under which the dog could not comfortably lie because of the configuration of the base of the table. Krist had sat at the table despite the availability of seven booths (i.e., all but her favorite) at which she could have sat and put the dog under a booth table. The other occasion was one in which she was sitting in her favorite booth but put the dog in the aisle because of a previous incident in which the dog had found and eaten some indigestible food on the floor under the booth's table; Krist offered no evidence that there was still--or again--food under the table. Thus, with respect to two of the four occasions as to which she complained of yelling, Krist's own testimony supported an inference that she had placed the dog in the aisle unnecessarily and that the shouted requests concerned her creation of a safety hazard, because someone passing by could trip on the dog either as it lay there or because it might suddenly move.

Fourth, and most interesting for me, is the Court of Appeals' emphasis that Title III is not a general civility code. Krist argued otherwise, but the Second Circuit concludes that the social environment does not require polite behavior. "Although Krist complains that her friends at Coopertown became less friendly after she began bringing the dog, and that the owners shouted at her when she did not properly place the dog in a position where it could not suffer or cause harm, 'careful attention to the requirements of the statute' reveals that Title III is designed to prevent a facility offering public accommodation from denying individuals with disabilities 'goods[ and] services. We agree with the district court that the ADA does not impose a civility code." This reasoning will rein in claims like this, I am sure, as defendants will argue that the lawsuit is really about rudeness and not about exclusion.