Krist v. Kolombos Rest. Inc., No. 11-1263 (2d Cir. 2012)
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Krist claimed that defendant, a New York City restaurant, discriminated against her on the basis of her disabilities in violation of of the Americans with Disabilities Act, 42 U.S.C. 12181-12189; New York State Executive Law 290-301; and New York City Administrative Code 8-101 to 8-703 by attempting to restrict her access and that of her service dog to the restaurant and by verbally harassing her on account of her disability and use of the service dog. The district court dismissed. The Second Circuit affirmed, rejecting arguments that the ADA imposes a code of civility and that the trial court erroneously imposed a requirement that plaintiff prove intentional discrimination.
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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. 1 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 1 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 1 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 1 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 1 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 1 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- 1 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). 1 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- 1 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 - 1 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 -11 - 1 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 - 1 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 1 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 - 1 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 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 -16 - This finding 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. -17 - 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 -18 - 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 -19 - We agree with the See, 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 -20 - 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
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