Krist v. Kolombos Rest. Inc.

• Decision Date: 24 July 2012
• Docket Number: Docket No. 11–1263–cv.
• Parties: Cheryl KRIST, Plaintiff–Appellant, v. KOLOMBOS REST. INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

688 F.3d 89

26 A.D. Cases 1325

45 NDLR P 163

Cheryl KRIST, Plaintiff–Appellant,

v.KOLOMBOS REST. INC., Defendant–Appellee.

Docket No. 11–1263–cv.

United States Court of Appeals,Second Circuit.

Argued: May 18, 2012.

Decided: July 24, 2012.

Martin J. Coleman, Woodbury, NY, for Plaintiff–Appellant.

Arthur H. Forman, Forest Hills, NY, for Defendant–Appellee.

Before: KEARSE, CARNEY, and WALLACE ^*, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Cheryl Krist appeals from a judgment entered in the United States District Court for the Southern District of New York following a bench trial before George B. Daniels, Judge, dismissing her complaint alleging that defendant Kolombos Rest. Inc. (“Kolombos”), a New York City restaurant doing business as Coopertown Diner (“Coopertown” or the “restaurant”), discriminated against her on the basis of her disabilities in violation of Title III of the Americans with Disabilities Act (“ADA” or the “Act”), 42 U.S.C. §§ 12181–12189; New York State Executive Law §§ 290–301 (“State Human Rights Law”); and New York City Administrative Code §§ 8–101 to 8–703 (“City Human Rights Code” or “City Code”). Krist, who has been disabled since at least 2003, complained that beginning in late 2008, when she acquired a service dog, Kolombos discriminated against her by, inter alia, attempting to restrict her access and that of the dog to the restaurant and by verbally harassing her on account of her disability and use of the service dog. The district court entered judgment in favor of Kolombos after finding that Kolombos had not denied Krist full and equal access to and use of the restaurant, either with or without her service dog, and ruling that restaurant employees' comments, which Krist considered to be rude or insensitive, did not constitute a violation of the ADA. On appeal, Krist contends principally that the district court erred (1) by basing its decision on the premise that a plaintiff complaining of a violation of Title III of the ADA is required to establish that discrimination was intended, (2) by failing to find that Krist was actually excluded from the restaurant, and (3) by failing to construe the ADA as imposing a code of civility and to rule that Kolombos violated the ADA by constructively excluding Krist from the restaurant. Concluding that there is no error of law or clear error of fact in the district court's decision, we affirm the judgment.

I. BACKGROUND

The following description of the facts is drawn from the district court's findings as to the course of events, made on the record at the end of the three-day bench trial ( see Trial Transcript (“Tr.”) at 299–307), most of which have not been challenged by Krist, and from testimony of Krist and Kolombos' owners, most of which is consistent with the court's findings.

Krist, who suffers from several afflictions, including hereditary essential tremor, arthritis, and asthma, has been manifestly disabled since at least 2003, causing her to require the assistance of walking aids or a wheelchair. She was a customer of Coopertown for some 20 years, beginning in approximately 1988, frequenting the restaurant several times a week. Between 2003 and December 2008, Krist went to Coopertown nearly every day for breakfast and lunch. She usually arrived around 9:00 a.m. and remained there until around 2:30 p.m. Coopertown became her primary social community, in which her friends were other customers, Coopertown employees, and the restaurant's current owners, Michael Kolombos and his cousin Fotios Batas. During this period, Krist would arrive at the restaurant using a cane, crutches, or a wheelchair, and she experienced no discrimination.

In or about December 2008, Krist obtained a medically-prescribed service dog that accompanied her to the restaurant. Batas testified that when Krist told him in late November that she was about to acquire a service dog and would be bringing it to the restaurant, he told her that that was permissible as long as the dog was licensed and was truly a service dog; otherwise, he indicated, the dog would be excluded in order to avoid the restaurant's being penalized by the health department. However, Krist testified that on December 11, 2008, on her first trip to Coopertown with the dog, her treatment by the Kolombos employees, and by the friends with whom she normally congregated at the restaurant, changed radically.

Coopertown, for Krist, had been “like ... Cheers, ... you went in and you knew people and people knew you and you were friendly and everything was fine.” (Tr. 88–89.) But after she began bringing the dog, “it all went right out the window.” ( Id. at 89.) The employees' dealings with her “all became very cool. It was just take my order, give me my food, give me my receipt and hope I leave.” ( Id. at 67.) The first time she took the dog to the restaurant, Joe Mugno, a waiter with whom she frequently had had lunch, asked her if her dog was a service dog, using a tone of skepticism. Krist responded that it was a service dog, and she and Mugno had no further conversations about the dog; but Mugno never had lunch with her again. Krist testified that on this occasion, none of the other employees of the restaurant spoke to her, even to exchange pleasantries. In addition, one of the customers, who had sat with Krist every day she was at Coopertown for 10 years, refused to sit with her, never sat with her again, and stopped speaking to her. ( See id. at 101–02.)

Krist also testified that there were incidents in which 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. (Tr. 55.) 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. ( See id. at 68–69.)

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.” (Tr. 63–64.) 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 ( see id. at 117); 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” ( id. at 67).

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. ( See Tr. 70–73, 85–86.) 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. ( See id. at 190, 246.)

In September 2009, Krist stopped going to Coopertown. In December 2009 she filed the present action seeking injunctive relief and compensatory and punitive damages, alleging that on various occasions in 2008 and 2009, the restaurant's owners yelled at her and discriminated against her on the basis of her disability and use of the service dog, in violation of federal, New York State, and New York City laws. Krist's attorney argued that punitive damages were warranted because the Kolombos owners knew the law; “and, having read the law at an early stage, they went on to do things that drove a person to tears and drove them [ sic ] ultimately to, after seven or eight months or nine months, to exclude herself from her only real significant social community.” ( Id. at 298.)

Following the trial, at which the court had heard testimony principally from Krist, Michael Kolombos, and Batas, the court made findings of fact generally consistent with the above—except that it rejected Krist's testimony that either Kolombos owner had ever ordered her to leave the restaurant: It found that Krist “was never forced to leave the restaurant” ( id. at 302; see also id. at 301).

The court ruled that Krist had failed to prove that Kolombos “did not attempt to reasonably accommodate her use of a service dog” ( id. at 302); that there was “no evidence that these owners either attempted to deny [Krist] access to the restaurant, provide[d] less or different services, [or] exclude[d] her or the dog from the restaurant” ( id. at 303); and that there was

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

( id. at 304; see also id. (“I cannot say that they didn't reasonably accommodate the use of the service dog, even though it created additional issues that, obviously, are relevant in the context of a restaurant and places where people come to have their meals.”)).

The court found that Krist had continued to patronize the restaurant with the service dog for some 10 months in virtually the same manner as she had before acquiring the dog. ( See Tr. 306.) It found that she “went to the restaurant with the dog dozens and dozens of times” ( id. at 301–02); that although there were some discussions between Krist and Michael Kolombos as to whether...