Second Circuit Affirms Dismissal of Service Dog Discrimination Claims

On July 24th, the Second Circuit affirmed the dismissal of plaintiff’s claim that a restaurant violated Title III of the Americans With Disabilities Act by restricting her access, and that of her service dog, to the restaurant  and by verbally harassing her.

The case, Krist v. Kolombos Restaurant, Inc., No. 11-1263-cv, should give paws – this is the only dog pun I will make here (you’re welcome) – to any plaintiff who is considering bringing such a claim.

Title III of the ADA generally prohibits discrimination against an individual “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”  The Second Circuit agreed with the trial court’s determination that defendant did not violate this law.

First, the court clarified that a Title III plaintiff does not need to prove intent to discriminate.  There was no indication, however, that the trial court had improperly imposed such a burden upon plaintiff.  Second, the court agreed that plaintiff had not shown that she was actually excluded from the restaurant, pointing to the fact that, over a period of 10 months, plaintiff went to the restaurant with the dog several (testimony indicated 90-100) times.   Third, plaintiff’s claims that she was yelled at by the owners (and thus that she was subject to a “constructive” exclusion) failed, where the court found that she was only yelled at 2 or 3 times in a 10-month period, and the “yelling concerned concerned the dog’s conduct or [plaintiff’s] handling of the dog.”  (On two occasions the “yelling” was due to her placing the dog in the aisle.)  There was also evidence that plaintiff continued to frequent the restaurant 3-4 times a week and that her dog normally stayed with her for several hours during each visit.  Thus, the court agreed that plaintiff failed to show that she was “actually” or “constructively” excluded from the restaurant and that she was “not denied any of its goods or services” in violation of Title III.

Finally, the court rejected plaintiff’s claim that Title III imposes a “civility code”:

Although [plaintiff] complains that her friends at [the restaurant] 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”.  [L]egislation such as the ADA cannot regulate individuals’ conduct so as to ensure that they will never be rude or insensitive to persons with disabilities”.

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