Wednesday, August 8, 2012

Diner Not Like Cheers after Customer Gets a Service Dog, but Is This Discrimination?

Cheryl Krist suffers from hereditary essential tremor, arthritis, and asthma, and has been disabled since at least 2003, when she began to use walking aids and a wheelchair.  She acquired a service dog in 2008.

Krist had been a customer of the Coopertown Diner in New York City for 20 years, beginning about 1988, where she went nearly every day for breakfast and lunch.  She often remained in the restaurant for over five hours, and it became her primary social community.  She knew other customers, the employees, and its owners, Michael Kolombos and Fotios Batas.  She encountered no discrimination when she came with a cane, crutches, or in a wheelchair. 

She was prescribed a service dog in 2008. Before she received the dog, she informed the restaurant owners that she would be getting it and that she would be bringing it to the restaurant.  Fotios Batas told her that this was okay as long as the dog was licensed and was truly a service dog, but if it were not, it would be excluded so that the restaurant would not be in violation of health codes. (Actually no licensing could be required, but there was never any issue that the dog was in fact a service dog.)

Krist testified that when she began to bring the dog to the restaurant in December 2008, her treatment by restaurant employees and regular customers changed radically.  The employees became “very cool,” with no more interaction than was necessary to serve her.  An employee that regularly had lunch with her stopped doing so.  Pleasantries with other customers ceased.  Another customer who used to sit with her every day stopped doing so, and even refused to speak with her. 

The owners sometimes yelled at her, Krist alleged.  Batas, “from behind the counter on the opposite side of the restaurant, started at the dog and made growling sounds.” When the dog responded with a sound that Krist described as “boof,” she testified that Batas ordered her to leave the restaurant.  On another occasion, when she took the dog out from under the table to show it to another customer, Batas complained that she was playing with the dog.

Kolombos told Krist that she should sit in the front of the store with the dog, and that after she had her breakfast, she should leave.  Krist began going less frequently, tried to sit near the front, but then went back to her favorite booth.  Twice in 2009, once in February and once in the summer, Krist testified that the owners yelled at her for having the dog lie beside her chair or her booth, rather than under the table, because they said that the dog was potentially imperiling customers and waiters. The owners acknowledged in their testimony that they had asked Krist to keep the dog out of the aisle. 

Lawsuit Filed Against Diner 

Finally, in September 2009, Krist stopped going to the Coopertown Diner.  In December 2009 she filed a lawsuit seeking compensatory and punitive damages and injunctive relief, alleging violations of federal, state, and city anti-discrimination laws.  The complaint said that the actions of the owners of the restaurant had driven Krist to tears. 

The trial court found that the restaurant owners and employees had had friction with Krist but, rejecting some of Krist's testimony, concluded that neither of the owners had ever ordered her to leave the restaurant.  Krist had not proven that the owners “did not attempt to reasonably accommodate” her use of her service dog. It also found no proof that the restaurant or its employees treated Krist any differently because she was disabled or that they “made her feel that she was not welcome because she had a disability.” 

The court did accept that Krist’s friends were no longer as friendly after she began bringing the dog, that her circle of friends changed, and also accepted that the owners had yelled at her about the dog, her handling of it, and its conduct. The court said that Krist may have thought of the restaurant as being like the one in Cheers, “but the ADA does not guarantee that kind of atmosphere.”

Although the owners had yelled at Krist a few times, these incidents were isolated, not “outrageous” or “demeaning” and did not constitute a “constructive denial of access.”  The ADA, according to the trial court, does not require that owners of a public restaurant “not complain, not ask the dog’s owner to control the dog’s behavior in a way that is not inconsistent with everyone else’s use of the restaurant.”  There was, in sum, “no evidence of any discriminatory intent” on the part of the restaurant’s owners and employees.

Second Circuit Finds No Requirement of Civility

On appeal, the Second Circuit Court of Appeals said that Krist was contending that Title III of the ADA imposes a requirement of civility. The circuit court rejected this contention. Citing the ADA (42 U.S.C. 12181-2), the court said that discrimination does include “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford … services to individuals with disabilities, unless … such modifications would fundamentally alter the nature of such … services.”  Regulations issued under the ADA require reasonable accommodations for service animals. 

The circuit court agreed that Krist did not need to prove that discrimination, if present, was intended.  Congress, in passing the ADA, noted its findings in 42 U.S.C. 12101(a)(5), that “individuals with disabilities continually encounter various forms of discrimination,” well beyond “outright intentional exclusion.”  The court referred to Krist’s testimony concerning Batas growling at her dog in a manner perhaps calculated to bait the dog into barking, but noted that the trial court’s finding that “Krist failed to establish by a preponderance of the evidence that she was excluded from Coopertown after she acquired her service dog … or that the service dog was excluded; or that her access to Coopertown, with or without the dog, was restricted.”

The Second Circuit continued to summarize the trial court’s determinations:

“The court's contrary finding that 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. This finding was supported by the testimony of Batas and Michael Kolombos that Krist had come to the restaurant with her dog some 90–100 times … and by the testimony of Krist herself that during that 10–month period, except in January, March, and April, she went to Coopertown every other day…. The district court's finding that Krist was neither ordered to leave Coopertown nor asked not to return cannot, on this record, be termed clearly erroneous.”

Krist argued that there had been a “constructive exclusion” from the restaurant. To this the Second Circuit responded:

“Nor was the court required to accept Krist's assertion that shouted criticisms of her handling of the dog or its conduct were unjustified or any suggestion that they were designed to drive her from the premises. For example, 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.”

The Second Circuit saw “no basis for overturning the district court’s findings that Krist was neither actually nor constructively excluded.”  
As to the civility code argument, the circuit court cited Camarillo v. Carrols Corp., 518 F.3d 153 (2nd Cir. 2008), that “legislation such as the ADA cannot regulate individuals’ conduct so as to ensure that they will never be rude or insensitive to persons with disabilities.”  The circuit court also cited the Eighth Circuit, which had held in Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723 (8th Cir. 1999), that insensitivity alone does not amount to harassment and neither the ADA nor the Civil Rights Act impose a “general civility code.” 

The circuit court affirmed the federal district court’s dismissal of the discrimination claims.

Significance of the Case 

This is a difficult case, and slightly different facts, or perhaps even a slightly different perspective by the trial or appellate courts involved, could have resulted in a very different decision.  If an owner of a restaurant regularly began barking at a service dog in hopes of baiting it into responsive barking so he could exclude the customer and the dog, I have little doubt that a discrimination claim could succeed.  If the owner decided that the service dog had to sit near the front of a restaurant because the seating was not as nice there and regular customers would not have to see or interact with the dog, there would be discrimination.  Although both these things may have happened on a few occasions, Krist was apparently permitted to sit where she wanted, and keep the dog where she wanted so long as she did not block an aisle, a reasonable request in granting an accommodation and one that could be made of person with a walker or a wheelchair. 

If it could have been shown that the employee who stopped eating with Krist did so at the direction of the owners, her case would have been stronger.  Similarly, if other customers stopped socializing with her because of rumors spread by the owners, this would be a level of discrimination a court could not ignore.  The service became cool, but how much did it change?  Bringing the check sooner after Krist finished eating is a rather subjective assessment, and the diner had the right to be business-like, even if it was not always so.  If the owners did not believe the dog was really a service dog, they had recourse to verify its status, but they do not seem to have had such doubts. Resenting the law that compels a business to admit a service dog may be petulant, but if an attitude does not really alter the accommodation being given, it is not actionable.  

Discrimination is often subtle, but sometimes too subtle to lead to damages or an injunction. The fact an employee no longer sat with Krist after she got the dog may have been annoying and unkind on his part, but it was a decision he could make without elevating the matter to a violation of the ADA.  Krist’s friends were not obligated to stay friends if they do not like dogs. Leaving a dog in an aisle where it might trip other customers or waiters can be a source of frustration, and yelling in frustration must be tolerated on occasion.  Life is often uncivil, both for those with disabilities and those without disabilities. 

Could It Have Been Different?

A friend of mine in Manhattan has a service dog, a calm but aloof Shiba Inu, that he takes just about everywhere.  The dog sits or lies, always alert, head up, ears cocked forward, with eyes that look inside you more than at you.  He finds that the dog makes friends for him even when he explains that Hiro works best without being treated as a pet.  He rarely senses any discrimination and has been told by one restaurant that he is always welcome to bring the dog, which has become a minor attraction to the other patrons. 

I spend winters in Arizona, where a musician in the Phoenix symphony has a service dog, a yellow Labrador, that comes on stage and lies beside her as she plays the violin.  When I first saw this I paid more attention to the dog than the music, wondering if some note might get the Lab to moan if he fell asleep.  After a while I no longer thought about it, but it took me some time to adjust to the idea that a service dog could belong in this environment.   

It is hard to say how human dynamics affects what happens when a service dog comes into a room.  The hostility of one controlling figure might turn the rest of those present against the person with the dog.  The welcoming attitude of others might reverse any hostility.  Such things can never be fully accounted for.  There is a thin line between what is discriminatory and what is not.  Each situation is different, and the complexities of human nature often make the law’s decisions seem arbitrary.  I cannot say the courts here were wrong, and I might not have reached a different result, even with my biases, had I been sitting on such an uncomfortable bench.   

Krist v. Kolombos Restaurant, 2012 WL 3002598 (2nd Cir. 2012)

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