Krist v. Kolombos Rest. Inc.

Filing

OPINION, affirming judgment of the district court, by ALK., SLC., JCW*, FILED.[671675] [11-1263]

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11-1263-cv
Krist v. Kolombos Rest. Inc.
1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

- - - - - -

4

August Term, 2011

5

(Argued:

May 18, 2012

6

Decided:

July 24, 2012)

Docket No. 11-1263-cv

7

_________________________________________________________

8

CHERYL KRIST,

9

Plaintiff-Appellant,

10

- v. -

11

KOLOMBOS REST. INC.,

12
13

Defendant-Appellee.
_________________________________________________________

14

Before:

KEARSE, CARNEY, and WALLACE*, Circuit Judges.

15

Appeal from a judgment following bench trial before the

16

United States District Court for the Southern District of New York,

17

George B. Daniels, Judge, dismissing discrimination claims brought

18

against restaurant under, inter alia, Title III of the Americans

19

with Disabilities Act, 42 U.S.C. § 12181 et seq., for inhospitable

20

treatment with regard to health-service dog.

21

Affirmed.

22
23

MARTIN J. COLEMAN, Woodbury, New
York, for Plaintiff-Appellant.

24
25

ARTHUR H. FORMAN, Forest Hills, New York,
for Defendant-Appellee.

*

Honorable J. Clifford Wallace, Judge, of the United States
Court of Appeals for the Ninth Circuit, sitting by
designation.

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KEARSE, Circuit Judge:

2

Plaintiff Cheryl Krist appeals from a judgment entered in

3

the United States District Court for the Southern District of New

4

York following a bench trial before George B. Daniels, Judge,

5

dismissing her complaint alleging that defendant Kolombos Rest. Inc.

6

("Kolombos"),

7

Coopertown Diner ("Coopertown" or the "restaurant"), discriminated

8

against her on the basis of her disabilities in violation of Title

9

III of the Americans with Disabilities Act ("ADA" or the "Act"), 42

10

U.S.C. §§ 12181-12189; New York State Executive Law §§ 290-301

11

("State Human Rights Law"); and New York City Administrative Code

12

§§ 8-101 to 8-703 ("City Human Rights Code" or "City Code"). Krist,

13

who has been disabled since at least 2003, complained that beginning

14

in

15

discriminated against her by, inter alia, attempting to restrict her

16

access and that of the dog to the restaurant and by verbally

17

harassing her on account of her disability and use of the service

18

dog. The district court entered judgment in favor of Kolombos after

19

finding that Kolombos had not denied Krist full and equal access to

20

and use of the restaurant, either with or without her service dog,

21

and

22

considered to be rude or insensitive, did not constitute a violation

23

of the ADA. On appeal, Krist contends principally that the district

late

a

2008,

ruling

that

New

when

York

she

City

restaurant

restaurant

acquired

a

employees'

-2-

doing

service

business

dog,

comments,

as

Kolombos

which

Krist

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court erred (1) by basing its decision on the premise that a

2

plaintiff complaining of a violation of Title III of the ADA is

3

required to establish that discrimination was intended, (2) by

4

failing

5

restaurant, and (3) by failing to construe the ADA as imposing a

6

code of civility and to rule that Kolombos violated the ADA by

7

constructively excluding Krist from the restaurant. Concluding that

8

there is no error of law or clear error of fact in the district

9

court's decision, we affirm the judgment.

to

find

that

10

Krist

I.

was

actually

excluded

from

the

BACKGROUND

11

The following description of the facts is drawn from the

12

district court's findings as to the course of events, made on the

13

record at the end of the three-day bench trial (see Trial Transcript

14

("Tr.") at 299-307), most of which have not been challenged by

15

Krist, and from testimony of Krist and Kolombos' owners, most of

16

which is consistent with the court's findings.

17

Krist, who suffers from several afflictions, including

18

hereditary

19

manifestly disabled since at least 2003, causing her to require the

20

assistance of walking aids or a wheelchair.

21

Coopertown for some 20 years, beginning in approximately 1988,

essential

tremor,

arthritis,

-3-

and

asthma,

has

been

She was a customer of

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frequenting the restaurant several times a week.

2

December 2008, Krist went to Coopertown nearly every day for

3

breakfast and lunch.

4

remained there until around 2:30 p.m. Coopertown became her primary

5

social

6

Coopertown employees, and the restaurant's current owners, Michael

7

Kolombos and his cousin Fotios Batas.

8

would

9

wheelchair, and she experienced no discrimination.

community,

arrive

at

in

the

Between 2003 and

She usually arrived around 9:00 a.m. and

which

her

restaurant

friends

using

were

other

customers,

During this period, Krist
a

cane,

crutches,

or

a

10

In or about December 2008, Krist obtained a medically-

11

prescribed service dog that accompanied her to the restaurant.

12

Batas testified that when Krist told him in late November that she

13

was about to acquire a service dog and would be bringing it to the

14

restaurant, he told her that that was permissible as long as the dog

15

was licensed and was truly a service dog; otherwise, he indicated,

16

the dog would be excluded in order to avoid the restaurant's being

17

penalized by the health department.

18

on December 11, 2008, on her first trip to Coopertown with the dog,

19

her treatment by the Kolombos employees, and by the friends with

20

whom she normally congregated at the restaurant, changed radically.

21

Coopertown, for Krist, had been "like . . . Cheers, . . .

22

you went in and you knew people and people knew you and you were

23

friendly and everything was fine."

-4-

However, Krist testified that

(Tr. 88-89.)

But after she

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began bringing the dog, "it all went right out the window."

2

at 89.)

3

was just take my order, give me my food, give me my receipt and hope

4

I leave."

5

restaurant, Joe Mugno, a waiter with whom she frequently had had

6

lunch, asked her if her dog was a service dog, using a tone of

7

skepticism.

8

Mugno had no further conversations about the dog; but Mugno never

9

had lunch with her again.

(Id.

The employees' dealings with her "all became very cool.

(Id. at 67.)

It

The first time she took the dog to the

Krist responded that it was a service dog, and she and

Krist testified that on this occasion,

10

none of the other employees of the restaurant spoke to her, even to

11

exchange pleasantries.

12

sat with Krist every day she was at Coopertown for 10 years, refused

13

to sit with her, never sat with her again, and stopped speaking to

14

her.

15

In addition, one of the customers, who had

(See id. at 101-02.)
Krist also testified that there were incidents in which

16

Batas or Michael Kolombos "yelled" at her.

17

visit to Coopertown with the dog, a few days after the first, Batas,

18

from behind the counter on the opposite side of the restaurant,

19

stared at the dog and made growling sounds.

20

when the dog then made a sound that Krist said was not a bark but

21

sounded like "boof," Batas yelled at her that the dog was barking

22

and he ordered her to leave the restaurant.

23

testified that on another occasion in December 2008, after she took

-5-

Thus, on her second

Krist testified that

(Tr. 55.)

She

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the dog out from under her table to show it to another customer,

2

Batas yelled at her, complaining that she was playing with the dog.

3

(See id. at 68-69.)

4

After

Batas

yelled

at

her

on

her

second

visit

to

5

Coopertown with the dog, Krist had complained to Michael Kolombos.

6

Krist testified that Michael Kolombos said "[t]hat I was welcome" to

7

have the dog in the restaurant but that "I should sit in the front

8

of the store" and should "[e]at my breakfast and go."

9

Thereafter, Krist began going to the restaurant less frequently; she

(Tr. 63-64.)

10

went approximately every other day.

11

perhaps three times but then resumed sitting in the back in her

12

favorite booth.

13

around noon (see id. at 117); but, she testified, "I didn't [stay

14

to] eat lunch because no one"--meaning "Joe [Mugno] or any of his

15

sons or any of the other waiters or anybody"--"would eat lunch with

16

me so there was no sense in staying" (id. at 67).

17

Krist

She sat at a front table

She would arrive at about 9 a.m. and stay until

also

testified

that

there

was

an

incident

in

18

February 2009 and another in the summer of 2009 in which Batas and

19

Michael Kolombos, respectively, yelled at her for having the dog lie

20

beside her chair or her booth, rather than under the table, and

21

potentially imperil customers and waiters.

22

Batas

and

Michael

Kolombos

similarly

-6-

(See Tr. 70-73, 85-86.)

testified

that

on

those

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occasions, when they asked Krist to move the dog, Krist had put the

2

dog in the aisle.

3

(See id. at 190, 246.)

In September 2009, Krist stopped going to Coopertown.

In

4

December 2009 she filed the present action seeking injunctive relief

5

and compensatory and punitive damages, alleging that on various

6

occasions in 2008 and 2009, the restaurant's owners yelled at her

7

and discriminated against her on the basis of her disability and use

8

of the service dog, in violation of federal, New York State, and New

9

York City laws.

Krist's attorney argued that punitive damages were

10

warranted because the Kolombos owners knew the law; "and, having

11

read the law at an early stage, they went on to do things that drove

12

a person to tears and drove them [sic] ultimately to, after seven or

13

eight months or nine months, to exclude herself from her only real

14

significant social community."

15

Following

the

(Id. at 298.)

trial,

at

which

the

court

had

heard

16

testimony principally from Krist, Michael Kolombos, and Batas, the

17

court made findings of fact generally consistent with the above--

18

except that it rejected Krist's testimony that either Kolombos owner

19

had ever ordered her to leave the restaurant:

20

"was never forced to leave the restaurant" (id. at 302; see also id.

21

at 301).

It found that Krist

22

The court ruled that Krist had failed to prove that

23

Kolombos "did not attempt to reasonably accommodate her use of a

-7-

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service dog" (id. at 302); that there was "no evidence that these

2

owners either attempted to deny [Krist] access to the restaurant,

3

provide[d] less or different services, [or] exclude[d] her or the

4

dog from the restaurant" (id. at 303); and that there was

5
6
7
8
9
10

no evidence that any of these owners of this
restaurant or employees of this restaurant treated
plaintiff any differently because she was disabled.
There is no evidence of that from the 20 years
before she had the dog, and there is no evidence of
that when she got the dog

11

(id. at 304; see also id. ("I cannot say that they didn't reasonably

12

accommodate the use of the service dog, even though it created

13

additional issues that, obviously, are relevant in the context of a

14

restaurant and places where people come to have their meals.")).

15

The court found that Krist had continued to patronize the

16

restaurant with the service dog for some 10 months in virtually the

17

same manner as she had before acquiring the dog.

18

found that she "went to the restaurant with the dog dozens and

19

dozens of times" (id. at 301-02); that although there were some

20

discussions between Krist and Michael Kolombos as to whether Krist

21

could sit at various tables, "she continued to sit exactly where she

22

wanted to sit" (id. at 302); that she stayed for "hours and hours"

23

(id. at 303); and that "whatever conversations there were about her

24

leaving the restaurant on a particular day . . . , it was clear that

25

she was never forced to leave the restaurant . . . ."

26

Krist decided when to arrive and when to leave, and "despite her
-8-

(See Tr. 306.)

It

(id. at 302).

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difficulties and disagreements with the owners," she "quickly and

2

continuously came back to the restaurant" (id.).

3

that Krist had not proven that Coopertown's owners or employees

4

"made her feel that she was not welcome [at the restaurant] because

5

she had a disability."

The court found

(Id. at 306.)

6

The court accepted Krist's testimony that after she began

7

bringing the dog to Coopertown "[m]any of her friends were no longer

8

as friendly" and that her "circle of friends" changed; and it found

9

that on "approximately two or three occasions one of the owners

10

yelled at her about the dog and the dog's handling or the dog's

11

conduct."

12
13
14
15
16
17
18
19
20
21
22

(Tr. 299.)

However, the court found that although

she was not treated as friendly as she had been
treated before[,] . . . . the ADA doesn't prohibit
the conduct at issue here, complaining about the
dog's handling and the dog's behavior, even if done
in a rude and insensitive manner--if I could even
characterize it as that[. That] is not what the ADA
is intended to reach. This may have been thought of
like Cheers, but the ADA does not guarantee that
kind
of
atmosphere.
The
ADA
prohibits
discrimination and denial of use and enjoyment of
public facilities.

23

(Id. at 299-300.)

24

Without

making

a

finding

as

to

whether

the

owners'

25

comments or shouts of which Krist complained actually were rude or

26

insensitive, the court found that "on this record I cannot conclude

27

that she was in any way, regardless of what the statements were,

28

excluded from this restaurant, [or] that she in any way did not have

-9-

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full access to all of the facilities that she had access to before

2

and utilized . . . ."

(Id. at 301.)

3

The district court also noted that there was "absolutely

4

no evidence of any discriminatory intent" on the part of the

5

restaurant's owners and employees.

(Tr. 300; see, e.g., id. at 302

6

("I

on

7

presented, even accepting them in the light most favorable to the

8

plaintiff, that these individuals intended to discriminate against

9

her and in fact discriminated against her"); id. at 303 ("there is

10

no evidence that these individuals had any animosity toward the

11

plaintiff

12

disabled").)

cannot

.

reasonably

.

.

determine

personally

and

these

clearly

facts

not

as

because

they

she

are

was

13

The court found that the occasions on which one of the

14

Kolombos owners yelled or shouted across the restaurant about the

15

dog's behavior were "isolated" and that their conduct was neither

16

"outrageous" nor "demeaning" so as to constitute a "constructive

17

denial of access" to the restaurant or its services.

18

ruled that the ADA "does not require" that owners of a public

19

restaurant "not complain, not ask the dog's owner to control the

20

dog's behavior in a way that is not inconsistent with everyone

21

else's use of the restaurant."

(Tr. 301.)

It

(Id. at 306.)

22

Although the court noted that Krist ceased frequenting

23

Coopertown in the fall of 2009, it was not persuaded that the

-10
-

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decision to do so was forced upon her by Kolombos.

2

court stated that Krist's decision may have been motivated by her

3

"frustration [at] the breakdown of her social network" (id.) as well

4

as by the fact that she was about to bring suit against Kolombos and

5

desired to "protect[] the viability of the lawsuit" (id. at 301).

6
7

Rather, the

Judgment was entered in favor of Kolombos on all of
Krist's claims.

8

II.

9

DISCUSSION

On appeal, Krist argues principally that the judgment

10

should

11

erroneously interpreted Title III of the ADA (or "Title III") as

12

requiring a plaintiff to prove discriminatory intent, and that the

13

court erred in failing to find that she was actually excluded from

14

Coopertown

15

constructively excluded her from the restaurant.

16

Title III imposes on public restaurants a requirement of civility.

17

We reject Krist's contention that Title III imposes a civility code,

18

and we see no error in the findings or conclusion of the district

19

court.

be

reversed

or

that

on

the

the

grounds

Coopertown

that

the

owners'

district

yelling

at

court

her

She contends that

20

Title III of the ADA prohibits, as a "[g]eneral rule,"

21

discrimination against an individual "on the basis of disability in

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-

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the full and equal enjoyment of the goods, services, facilities,

2

privileges, advantages, or accommodations of any place of public

3

accommodation by any person who owns, leases . . . or operates a

4

place of public accommodation," 42 U.S.C. § 12182(a), e.g., a

5

"restaurant . . . serving food or drink," id. § 12181(7)(B).

6

Act defines discrimination to include, to the extent pertinent in

7

this action,

8
9
10
11
12
13
14

The

a failure to make reasonable modifications in
policies, practices, or procedures, when such
modifications
are
necessary
to
afford
such
goods[ and] services . . . to individuals with
disabilities, unless . . . such modifications would
fundamentally alter the nature of such goods[ and]
services.

15

42 U.S.C. § 12182(b)(2)(A)(ii).

16

by the Department of Justice shortly after the ADA was enacted,

17

which

18

"[g]enerally,

19

practices, or procedures to permit the use of a service animal by an

20

individual with a disability." 28 C.F.R. § 36.302(c)(1) (1992); see

21

also

22

(elaborating on accommodation requirements for individuals with

23

disabilities aided by service animals).

were

28

effective
a

C.F.R.

public

§

until

Regulations issued under Title III

March

15,

accommodation

36.302(c)

(2011)

2011,

shall

(effective

provided

modify

Mar.

that

policies,

15,

2011)

24

In order to state a claim for violation of Title III,

25

which authorizes private actions only for injunctive relief, not

26

monetary damages, see, e.g., Powell v. National Board of Medical

-12
-

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Examiners,

2

"establish that (1) he or she is disabled within the meaning of the

3

ADA; (2) that the defendants own, lease, or operate a place of

4

public accommodation; and (3) that the defendants discriminated

5

against the plaintiff within the meaning of the ADA," Roberts v.

6

Royal Atlantic Corp., 542 F.3d 363, 368 (2d Cir. 2008), cert.

7

denied, 129 S. Ct. 1581 (2009); see Camarillo v. Carrols Corp., 518

8

F.3d 153, 156 (2d Cir. 2008) ("Camarillo").

9

is at issue here.

364

F.3d

79,

86

(2d

Cir.

2004),

a

plaintiff

must

Only the third element

10

In reviewing a judgment entered after a bench trial, we

11

"must not . . . set aside" the district court's findings of fact

12

"unless [they are] clearly erroneous."

13

see, e.g., Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985);

14

Banker v. Nighswander, Martin & Mitchell, 37 F.3d 866, 870 (2d Cir.

15

1994).

16

factfinder's choice between them cannot be clearly erroneous."

17

Anderson, 470 U.S. at 574.

Fed. R. Civ. P. 52(a)(6);

"Where there are two permissible views of the evidence, the

18

Further, in determining whether factual findings are

19

clearly erroneous, we are required to "give due regard to the trial

20

court's opportunity to judge the witnesses' credibility."

21

Civ. P. 52(a)(6).

22

as the trier of fact to decide whose testimony should be credited.

23

See, e.g., Anderson, 470 U.S. at 574.

Fed. R.

It is within the province of the district court

-13
-

And as trier of fact, the

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judge is "entitled, just as a jury would be, see, e.g., Robinson v.

2

Cattaraugus County, 147 F.3d 153, 160 (2d Cir.1998); Fiacco v. City

3

of Rensselaer, 783 F.2d 319, 325 (2d Cir.1986), cert. denied, 480

4

U.S. 922 . . . (1987), to believe some parts and disbelieve other

5

parts of the testimony of any given witness."

6

v. Greystone Business Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011).

7

We

8

credibility assessments.

9

are

not

allowed

to

second-guess

the

Diesel Props S.r.l.

bench-trial

court's

See, e.g., Anderson, 470 U.S. at 573-74.

We review the district court's conclusions of law, and its

10

application of the law to the facts, de novo.

11

Champlain Enterprises, Inc., 445 F.3d 610, 617-18, 623 (2d Cir.

12

2006); FDIC v. Providence College, 115 F.3d 136, 140 (2d Cir. 1997).

13

"[M]ixed questions of law and fact are reviewed either de novo or

14

under the clearly erroneous standard[,] depending on whether the

15

question is predominantly legal or [predominantly] factual." United

16

States v. Skys, 637 F.3d 146, 152 (2d Cir. 2011) (internal quotation

17

marks omitted).

18

See, e.g., Henry v.

Given these principles, we see no basis for disturbing the

19

decision of the district court.

20

inclined to agree with Krist that a Title III plaintiff who proves

21

that she is disabled within the meaning of the ADA and that the

22

defendant operates a place of public accommodation that failed to

23

make reasonable modifications in its policies, etc., as necessary to

Preliminarily, we note that we are

-14
-

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provide her with the goods and services afforded by the defendant

2

need not also prove that discrimination was intended.

3

which is designed "to provide a clear and comprehensive national

4

mandate for the elimination of discrimination against individuals

5

with disabilities," 42 U.S.C. § 12101(b)(1), noted, among Congress's

6

findings,

7

encounter[ed] various forms of discrimination, including outright

8

intentional exclusion . . . and . . . failure to make modifications

9

to existing facilities and practices" id. § 12101(a)(5) (emphases

10

added). This language itself is antithetical to any suggestion that

11

the

12

discrimination.

13

661, 675 (2001).

ADA

14

that

was

individuals

intended

to

with

allow

disabilities

recovery

only

had

The Act,

"continually

for

intentional

See generally PGA Tour, Inc. v. Martin, 532 U.S.

However, we do not see that the district court viewed

15

intent to discriminate as an element of a Title III claim.

16

also asserted a claim for punitive damages under the City Human

17

Rights Code (see Complaint ¶ 35), under which an award of punitive

18

damages may be available upon a showing of intent to discriminate in

19

violation

20

Systems, Inc., 259 F.3d 91, 101-02 (2d Cir. 2001) (discussing City

21

Code § 8-502(a)). Given Krist's attorney's emphasis on the Kolombos

22

owners' knowledge of the law and on Krist's desire for an award of

23

punitive damages, the district court's references to intent were

of

that

law,

see

generally

-15
-

Farias

v.

Krist

Instructional

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1

relevant to her City Code claim and were responsive to Krist's

2

testimony suggesting, inter alia, that Batas had growled at the dog

3

in a manner calculated to bait the dog into barking and that the

4

Kolombos owners "hope[d]" she would leave and not return.

5

Nor do we see that the absence of evidence of intent was

6

a linchpin of the court's decision to dismiss Krist's ADA claim.

7

Rather,

8

preponderance of the evidence that she was excluded from Coopertown

9

after she acquired her service dog (the only period of which she

10

complains); or that her service dog was excluded; or that her access

11

to Coopertown, with or without the dog, was restricted.

12

Krist states that the court erred "in rejecting [her] proof that she

13

was actually excluded by [Kolombos] from the diner based on her use

14

of a service dog" (Krist brief on appeal at 31 (emphasis added)),

15

the district court as trier of fact was not required to credit her

16

testimony to that effect.

17

frequented the restaurant with the dog in a manner that was "not

18

significantly different" from her prior custom was supported by its

19

findings that, over a period of some 10 months, Krist went to the

20

restaurant with the dog "dozens and dozens" of times.

21

was supported by the testimony of Batas and Michael Kolombos that

22

Krist had come to the restaurant with her dog some 90-100 times (see

23

Tr. 222, 243), and by the testimony of Krist herself that during

the

court

found

that

Krist

failed

to

establish

by

a

Although

The court's contrary finding that Krist

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-

This finding

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1

that 10-month period, except in January, March, and April, she went

2

to Coopertown every other day (see, e.g., id. at 70, 78, 114).

3

district court's finding that Krist was neither ordered to leave

4

Coopertown nor asked not to return cannot, on this record, be termed

5

clearly erroneous.

The

6

Further, although Krist also argues that the district

7

court erred in failing to find that she was the victim of a

8

"constructive exclusion" (Krist brief on appeal at 31 (emphasis

9

added)), there is no clear error in the court's finding that any

10

shouts

11

employees'

12

harassment. The court found that there were only "approximately two

13

or three occasions" in the 10-month period when one of the owners

14

yelled at her, and that the yelling concerned the dog's conduct or

15

Krist's handling of the dog.

16

to accept Krist's suggestion that the instances were numerous.

17

by

the

owners

behavior

The

court's

were

was

isolated

not

outrageous

(Tr. 299.)

finding

and

that

that
or

the

restaurant

demeaning

verbal

The court was not required

there

was

no

constructive

18

exclusion is also supported by the record that Krist continued to

19

frequent the restaurant, with the dog, some 3-4 times a week; that

20

she continued to sit in her preferred booth when it was available;

21

and that she and the dog normally stayed at the restaurant for

22

several hours on each visit.

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1

Nor was the court required to accept Krist's assertion

2

that shouted criticisms of her handling of the dog or its conduct

3

were unjustified or any suggestion that they were designed to drive

4

her

5

incidents described by Krist occurred in February and September 2009

6

when Batas and Michael Kolombos, respectively, yelled at her across

7

the restaurant for having put the dog in the aisle, potentially

8

impeding customer traffic and waiter movements. One was an occasion

9

when Krist was sitting at a table under which the dog could not

10

comfortably lie because of the configuration of the base of the

11

table. Krist had sat at the table despite the availability of seven

12

booths (i.e., all but her favorite) at which she could have sat and

13

put the dog under a booth table.

14

which she was sitting in her favorite booth but put the dog in the

15

aisle because of a previous incident in which the dog had found and

16

eaten some indigestible food on the floor under the booth's table;

17

Krist offered no evidence that there was still--or again--food under

18

the table.

19

which she complained of yelling, Krist's own testimony supported an

20

inference that she had placed the dog in the aisle unnecessarily and

21

that the shouted requests concerned her creation of a safety hazard,

22

because someone passing by could trip on the dog either as it lay

23

there or because it might suddenly move.

from

the

premises.

For

example,

the

last

two

"yelling"

The other occasion was one in

Thus, with respect to two of the four occasions as to

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1

In sum, we see no basis for overturning the district

2

court's findings that Krist was neither actually nor constructively

3

excluded from Coopertown and that she was not denied any of its

4

goods or services.

5

Finally, we reject Krist's contention that "in effect,

6

. . . Title III of the ADA imposes a civility code" (Transcript of

7

oral argument of the present appeal at 4 (statement of Krist's

8

counsel)).

9

became less friendly after she began bringing the dog, and that the

10

owners shouted at her when she did not properly place the dog in a

11

position where it could not suffer or cause harm, "careful attention

12

to the requirements of the statute," Oncale v. Sundowner Offshore

13

Services, Inc., 523 U.S. 75, 80 (1998), reveals that Title III is

14

designed to prevent a facility offering public accommodation from

15

denying individuals with disabilities "goods[ and] services," e.g.,

16

42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(ii).

17

district court that the ADA does not impose a civility code.

18

e.g., Camarillo, 518 F.3d at 157 (vacating Fed. R. Civ. P. 12(b)(6)

19

dismissal of a plausible Title III denial-of-service claim, while

20

"not disagree[ing] . . . that legislation such as the ADA cannot

21

regulate individuals' conduct so as to ensure that they will never

22

be rude or insensitive to persons with disabilities" (internal

23

quotation marks omitted)); cf. Cannice v. Norwest Bank Iowa N.A.,

Although Krist complains that her friends at Coopertown

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-

We agree with the
See,

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1

189 F.3d 723, 726 (8th Cir. 1999) ("Insensitivity alone does not

2

amount to harassment; [Title I of] the ADA, like Title VII [of the

3

Civil Rights Act of 1964], is not in effect a 'general civility

4

code.'"

(quoting Oncale, 523 U.S. at 81)).

5

Krist also complains that the district court, in its

6

findings, made no mention of her claims under the State Human Rights

7

Law or the City Human Rights Code. The judgment expressly dismissed

8

all three of Krist's claims, and there is no basis for reversal.

9

The State-law claim is coextensive with Krist's Title III claim,

10

see, e.g., Camarillo, 518 F.3d at 158, and her challenge to the

11

dismissal of the State-law claim thus lacks merit for the reasons

12

discussed above with respect to Title III.

13

somewhat broader rights and is to be "given an independent liberal

14

construction," see, e.g., Loeffler v. Staten Island University

15

Hospital, 582 F.3d 268, 278 (2d Cir. 2009) (internal quotation marks

16

omitted); but we can hardly doubt that the district court considered

17

Krist's claim under the City Code independently, for the court's

18

findings with regard to discriminatory intent were pertinent to

19

punitive damages, which could not have been awarded except under the

20

City Code.

21

her ADA claim, Krist's brief on appeal contains no authority or

22

argument as to how the court erred in dealing with her City-law

23

claim, and we consider any independent challenge to the dismissal of

The City Code provides

In any event, aside from the arguments with respect to

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1

that claim to be abandoned, see Hobbs v. County of Westchester, 397

2

F.3d 133, 147 (2d Cir.), cert. denied, 546 U.S. 815 (2005); Norton

3

v. Sam's Club, 145 F.3d 114, 117 (2d Cir.), cert. denied, 525 U.S.

4

1001 (1998).

5

6

CONCLUSION

We have considered all of Krist's arguments on this appeal

7

and have found them to be without merit.

8

district court is affirmed.

-21
-

The judgment of the