S. BAXTER JONES v. CITY OF DETROIT, MICHIGAN; REUBEN FLUKER; ROBIN CLEAVER; EDWARD HUDSON; ELVIN BARREN
No. 21-1055
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
December 21, 2021
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 21a0288p.06
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:17-cv-11744—Avern Cohn, District Judge.
Argued: November 2, 2021
Decided and Filed: December 21, 2021
Before: SUTTON, Chief Judge; MOORE and GRIFFIN, Circuit Judges.
COUNSEL
ARGUED: Kathryn Bruner James, GOODMAN HURWITZ & JAMES, P.C., Detroit, Michigan, for Appellant. Cheryl L. Ronk, CITY OF DETROIT, Detroit, Michigan, for Appellees. ON BRIEF: Kathryn Bruner James, GOODMAN HURWITZ & JAMES, P.C., Detroit, Michigan, for Appellant. Cheryl L. Ronk, CITY OF DETROIT, Detroit, Michigan, for Appellees.
SUTTON, C.J., delivered the opinion of the court in which GRIFFIN, J., joined. MOORE, J. (pp. 10–16), delivered a separate dissenting opinion.
SUTTON, Chief Judge. After police arrested Baxter Jones during a protest in Detroit, he sued the City on several grounds, including a claim that the police officers failed to provide a reasonable accommodation for him when they took him to the police station. Officers transported Jones, who uses a wheelchair, in a cargo van. That was unsafe and injured him, he alleged in the complaint. The district court dismissed his claim that the City was vicariously liable for the officers’ failure to accommodate him. Because vicarious liability is not available for claims under Title II of the Americans with Disabilities Act, we affirm.
I.
In 2014, officers with the Detroit Police Department arrested Baxter Jones and eight other individuals as they demonstrated outside a city water contractor‘s facility. The protestors blocked the building‘s entrance, and the officers arrested them for disorderly conduct. A police bus came to take the protestors to a police station, but Jones could not board it because he uses a wheelchair, which the bus was not equipped to handle. The officers called for a cargo van to transport him.
According to Jones, the vehicle was not up to the task. Because the van did not have a wheelchair lift, the officers had to lift him into the van. The interior of the van, he claims, also created problems, as the height of the ceiling made it difficult for him to sit up straight. And the van lacked restraints. To keep the wheelchair from rolling around while the van was in transit, an officer sat in the back with Jones and braced his feet against the chair‘s wheels to prevent it from moving. Jones claims that the entry into the van and the jostling and bouncing of the ensuing
The State of Michigan declined to prosecute Jones for disorderly conduct, but that did not end the dispute. Jones filed a lawsuit against the City of Detroit. In addition to the City, he named a number of police officers in their individual capacities. He brought claims under the Americans with Disabilities Act,
The defendants moved for summary judgment. The district court denied their request for qualified immunity on the excessive-force claim, which prompted an interlocutory appeal. Our court reversed and granted qualified immunity to the officers with respect to the excessive-force claims against them. Jones v. City of Detroit, 815 F. App‘x 995, 1000 (6th Cir. 2020).
The district court separately granted summary judgment in the City‘s favor on Jones‘s failure-to-accommodate claims under the Americans with Disabilities Act and the Rehabilitation Act. The court held that neither statute permits a claim of vicarious liability, the theory under which Jones sued the City. Jones asked the district court to certify that question for interlocutory appeal. It did, and we granted permission to appeal.
II.
Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
When it comes to remedies for a violation, Title II borrows from the Rehabilitation Act. It says that the “remedies, procedures, and rights” under section 505 of the Rehabilitation Act apply to Title II claims.
That prelude sets the table for establishing that Title VI tells us whether vicarious liability is available under these provisions of the ADA and Rehabilitation Act. Whether an injured party may seek relief premised on vicarious liability turns on the nature of the “remedies, procedures, and rights” available or, in the words of the Supreme Court, on a construction of “the scope of available remedies” under the statute. Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 284–85 (1998); see Barnes, 536 U.S. at 187.
Hiler v. Brown confirms the point. 177 F.3d 542 (6th Cir. 1999). It evaluated whether an employee may sue a supervisor in his individual capacity in a retaliation claim under the Rehabilitation Act. Id. at 543. The relevant portion of the Rehabilitation Act at issue in that case incorporated
In answering the Title VI question, we have considerable guidance. Title II of the ADA is not the only federal civil rights statute that incorporates the remedies established by Title VI of the Civil Rights Act. Title IX of the Education Amendments of 1972 uses the same remedial scheme, compare
In Gebser, the Court faced a claim by a student who became embroiled in a sexual relationship with a teacher and who sued her school district for sexual harassment under Title IX. 524 U.S. at 277–78. The student did not have any evidence that other school officials knew about the teacher‘s misconduct, however. Id. at 291. Absent actual notice and deliberate indifference on the part of district officials with the authority to intervene, the Court held that the student did not have a claim for monetary damages. Id. at 292–93.
Three features of Title IX undergirded the Court‘s decision. The first was its date of enactment. At Title IX‘s birth in 1972, most civil rights laws did not permit money damages actions. That was true even for “principal civil rights statutes” like Title VII, which created an express cause of action. Id. at 285–86. Title IX by contrast has only an implied cause of action. See Cannon, 441 U.S. at 717. Under these statutory circumstances, the Court thought it hard to believe that Congress would implicitly authorize damages awards under Title IX at a time when it had not done so under Title VII, which contained an express cause of action. Gebser, 524 U.S. at 285–86.
The second feature was Title IX‘s “contractual nature” as Spending Clause legislation. Id. at 287. When Congress invokes its Spending Clause powers and imposes conditions on the States for the receipt of federal funds, it reasoned, a recipient must have notice that noncompliance could open the door for liability in damages. Id. No such notice appeared in the words of the statute. A school district would justifiably be surprised to learn that, by accepting federal funds, it could be subjected to a monetary judgment mentioned nowhere in the statute due to conduct school officials knew nothing about—and even at a dollar amount exceeding the initial grant. Id. at 289–90. It was “sensible to assume” from this statutory silence, the Court explained, that Congress “did not envision” money-damages liability. Id. at 287–88.
The third feature was the enforcement scheme that Title IX lays out. While the statute does not expressly create a private cause of action, it does expressly create administrative enforcement remedies. Id. at 288. The key recourse is that federal agencies may file actions against noncompliant recipients of funds. Before doing so, an agency must notify the “appropriate person” employed by the recipient and attempt to achieve compliance voluntarily. Id.; see
Title VI shares all of these features with Title IX. It was enacted at a time when existing civil rights statutes containing express rights of action authorized private claims for injunctive and equitable relief, not monetary relief. It invoked Congress‘s Spending Clause powers. And it contained the same administrative enforcement mechanism, which requires actual notice to a recipient‘s officials. Cannon, 441 U.S. at 695–96, 696 n.18.
What was true for Title IX in Gebser is true for Title VI today. Our court previously suggested as much in Foster v. Michigan, 573 F. App‘x 377, 389 (6th Cir. 2014). We indicated that the claimants “likely would not be able to establish Title VI liability under a theory of respondeat superior.” Id. Noting that “the Gebser Court recognized that Title VI and Title IX operate in the same manner,” Foster reasoned that “Gebser‘s interpretation that there is no vicarious[] liability under Title IX supports the notion that there is no vicarious liability under Title VI.” Id.
Several other circuits agree. See, e.g., United States v. County of Maricopa, 889 F.3d 648, 652 & n.2 (9th Cir. 2018) (explaining that “an entity cannot be held vicariously liable on a respondeat superior theory” under Title VI); Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 664–65 (2d Cir. 2012) (explaining the limited circumstances in which “courts view actions of a third party as intentional violations by the funding recipient itself” under Title VI without discussing vicarious liability); see also Rodgers v. Smith, 842 F. App‘x 929, 929 (5th Cir. 2021) (per curiam) (“Title VI allows neither personal liability claims against individuals nor vicarious liability claims against employers for the acts of their employees.“).
Because Title II of the ADA and the Rehabilitation Act import Title VI‘s remedial regime, that ends the inquiry. If Title VI does not allow vicarious liability, neither do these provisions of the ADA or the Rehabilitation Act.
Jones resists this approach and conclusion.
Two courts of appeals at first glance appear to have reached the opposite conclusion. See Delano-Pyle v. Victoria County, 302 F.3d 567, 574–75 (5th Cir. 2002); Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001). But time and circumstances have not favored either decision. The Fifth Circuit decision never addressed the impact of Gebser on this analysis. Twice since then, the Fifth Circuit has acknowledged the possibility that Delano-Pyle was wrong because it did not engage with Gebser. In each instance, the court did not finally resolve the point. Harrison v. Klein Ind. Sch. Dist., 856 F. App‘x 480, 483 n.4 (5th Cir. 2021) (per curiam); Plains Cap. Bank v. Keller Ind. Sch. Dist., 746 F. App‘x 355, 361–62 (5th Cir. 2018) (per curiam). The Ninth Circuit decision also did not grapple with Gebser. It relied on in-circuit precedent without pausing to ask whether that case, a decade older than Gebser, remained good law. Duvall, 260 F.3d at 1141 (citing Bonner v. Lewis, 857 F.2d 559, 566–67 (9th Cir. 1988)).
One more datapoint deserves note. More recently, the Fifth and Ninth Circuits have held that Title VI does not impose vicarious liability. See County of Maricopa, 889 F.3d at 652 & n.2; Rodgers, 842 F. App‘x at 929. Each decision relied on Gebser in doing so. Each court of appeals, to be sure, has not taken the next step of addressing the impact of those decisions on the ADA‘s incorporation of Title VI. But at a minimum,
That leaves one other court of appeals that has permitted vicarious-liability claims under Title II of the ADA. But that case was decided before Gebser and thus had no reason to consider the relationship between the Supreme Court‘s conclusions about Title IX and the ADA. See Rosen v. Montgomery County, 121 F.3d 154, 157 n.3 (4th Cir. 1997).
Other civil rights statutes, it is true, authorize some vicarious-liability claims. Title VII offers one example. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986). But the “general rule” that vicarious liability applies as a background principle has force only “absent clear direction to the contrary by Congress.” Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 70–71 (1992); see also Vinson, 477 U.S. at 72. Just that kind of “clear direction” appears here. Congress has explicitly said that a claimant seeking relief under Title II of the ADA must use the remedies provided by Title VI.
Jones claims that Gebser, even on its own terms, does not apply because, unlike the student there, he does not need to show intentional discrimination to prevail on his reasonable accommodation claim. But the statute offers no reason for treating this (or that) claim differently. In no uncertain terms, it says that the remedial framework for Title VI applies to Title II of the ADA, whether the claim turns on one state of mind or another or for that matter race or disability discrimination. No matter the theory of the violation under either statute, the target of the recovery must be the perpetrators themselves.
One other distinction between Gebser and this case exists. While Congress invoked its Spending Clause powers to enact Title IX and Title VI, Barnes, 536 U.S. at 189 n.3; Gebser, 524 U.S. at 287, it invoked § 5 of the Fourteenth Amendment to enact the ADA,
III.
Our conclusion that vicarious liability does not apply to Title II of the ADA or § 505 of the Rehabilitation Act takes us to the end of the road for Jones‘s two failure-to-accommodate claims against the City. He brought only one version of that claim under each statute, and it was premised on vicarious liability.
Even so, Jones now contends that the record shows that the City was deliberately indifferent and that he can prevail even without using vicarious liability. But the claim comes too late. Jones made no mention
We affirm.
DISSENT
KAREN NELSON MOORE, Circuit Judge, dissenting. In alleging that officers in this case failed to accommodate his disability, Baxter Jones asserts a violation of Title II of the Americans with Disabilities Act (ADA) rather than a violation of Title VI or Title IX of the Civil Rights Act of 1964. Unlike Title IX of the Civil Rights Act, which conditions the right to nondiscrimination on a receipt of federal funds, Title II of the ADA is an outright prohibition on discrimination. On that ground, I would distinguish the Supreme Court‘s holding in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), and hold that vicarious liability is within the scope of the remedies envisioned by Title II of the ADA.
I. RESPONDEAT SUPERIOR LIABILITY
A. Agency principles and Gebser‘s application
When interpreting a statute, courts presume that Congress legislates against the background of common-law principles. See e.g., Comcast Corp. v. Nat‘l Ass‘n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1016 (2020); Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013). Following that general rule, the Supreme Court has long looked to principles of agency and tort law when analyzing remedial provisions of statutes intended to remedy discrimination. See Univ. of Texas Sw. Med. Ctr., 570 U.S. at 347; Babb v. Wilkie, 140 S. Ct. 1168, 1178 (2020); Carey v. Piphus, 435 U.S. 247, 254–55 (1978). Respondeat superior, or vicarious liability, is a “basic agency principle[]” that the Court routinely uses for its interpretation of civil-rights statutes. Faragher v. City of Boca Raton, 524 U.S. 775, 791 (1998); see also Meyer v. Holley, 537 U.S. 280, 285 (2003) (applying vicarious liability principles to the Fair Housing Act); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 755 (1998) (relying on agency principles to hold employer vicariously liable under Title VII of the Civil Rights Act); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (looking to agency principles for guidance in interpreting Title VII). Indeed, when a plaintiff seeks compensation for discrimination under a civil-rights statute, it is logical for courts to apply tort-based principles. See Meyer, 537 U.S. at 287. “[A]bsent an indication to the contrary in the statute
The majority interprets Gebser as an “indication to the contrary,” holding that Congress has foreclosed the availability of respondeat superior under Title VI of the Civil Rights Act, and therefore Title II of the ADA. As the majority explains, Gebser looked at three data points to hold that respondeat superior liability is unavailable under Title IX of the Civil Rights Act. 524 U.S. at 287–88. Unlike the majority, I believe that all three of those points lead to the opposite conclusion with respect to Title II of the ADA.
Gebser first examined the time frame in which Title IX was passed. Because Title IX was enacted in 1972, a time when civil-rights statutes did not provide for recovery of monetary damages, the Supreme Court did not consider it appropriate to allow an “unlimited recovery” of damages from an employer. Id. at 285–86. Congress passed the ADA, however, in 1990, after the Supreme Court decided Cannon v. University of Chicago, 441 U.S. 677 (1979), which held that private persons may enforce Title IX through an implied right of action. Courts assume after Cannon that Congress legislated with the full backdrop of traditional remedies—which includes monetary damages—in mind. Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 70–72 (1992).
Second, the court in Gebser looked to “Title IX‘s contractual nature” to determine the scope of available remedies under the statute. 524 U.S. at 287. Because Title IX was passed under Congress‘s Spending Clause authority, the substance of the violation is essentially a breach of contract between an entity receiving federal funds and the U.S. government. See
Congress passed Title II of the ADA, by contrast, under its authority to remedy Constitutional wrongs under § 5 of the Fourteenth Amendment. See
Finally, Gebser pointed to Title IX‘s administrative regulations, which require the federal entity to notify a recipient of a violation before the federal authority revokes aid, as support for the unavailability of vicarious liability. 524 U.S. at 289. Although the regulations implementing compliance with Title VI contain a similar provision, see
We must presume that general principles of agency, including respondeat superior, apply to our interpretation of the scope of the ADA unless we are faced with an indication to the contrary. Unlike the majority, I would hold that Gebser‘s interpretation of Title IX of the Civil Rights Act does not alter that presumption with respect to Title II of the ADA.
B. Respondeat superior and coextensive interpretation of Title VI and Title II
The majority also holds that Congress‘s incorporation of Title VI into Title II‘s remedies provision is the kind of “clear direction” that forecloses claims pursued under a theory of vicarious liability. Franklin, 503 U.S. at 70. Because the “remedies, procedures, and rights set forth in” Title VI “shall be the remedies, procedures, and rights” Title II provides, if Title VI forecloses respondeat superior liability, the majority assumes that Title II must do so as well.
To be sure, the kinds of “remedies, procedures, and rights” available under the Rehabilitation Act and Title VI must be the same kinds of remedies available under the ADA. See
Respondeat superior is not a type of remedy but rather a theory of liability that affects the remedy‘s scope. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (referring to respondeat superior as a “theory of liability“); Dan B. Dobbs, Paul T. Hayden, and Ellen M. Bublick, The Law of Torts § 425 (2d ed. 2019) (“Vicarious liability is liability for the tort of another person.“). In practice, then, respondeat superior affects how a plaintiff frames a case to the jury but does not change the relief a plaintiff is seeking ultimately. Respondeat superior may be part of a “remedial scheme” involved in effectuating the remedies available under the statute, see Gebser, 524 U.S. at 290, but the scheme is distinct from the remedy itself. No one disputes here that the same kinds of remedies, i.e., compensatory damages, are available under both Title II of the ADA and Title VI of the Civil Rights Act. See Johnson v. City of Saline, 151 F.3d 564, 574 (6th Cir. 1998) (holding that compensatory damages are available for violations of Title II of the ADA); Doe v. BlueCross BlueShield of Tenn., Inc., 926 F.3d 235, 240 (6th Cir. 2019) (noting that compensatory damages are available under Title VI of the Civil Rights Act). Different theories of liability are available to effectuate the remedy under both statutes, but the same remedy, compensatory damages, is available.
Respondeat superior also does not create any substantive rights or delineate any procedures. The right protected under Title II is the same kind of right that Title VI protects: the right to be free from discrimination. Compare
The distinction between a theory of liability and a remedy, procedure, or right, moreover, is one Congress would understand. Because Congress is presumed to legislate against a backdrop of common-law principles, Comcast, 140 S. Ct. at 1016, Congress understood when drafting Title II of the ADA that employer liability under a respondeat superior theory is available generally when an employee violates
This case illustrates the importance of holding the City vicariously liable for the acts of its employees. At oral argument, counsel for the City pronounced that “a police officer going out into the streets and reacting to a scene is not something that a city can have control over.” Oral Arg. 13:53–14:00. Maybe not in all circumstances, but a city can be careful about hiring officers sensitive to the needs of disabled persons and training its officers not to discriminate against them. The threat of respondeat superior liability would incentivize it to do so, and I would hold that a respondeat superior theory is available to plaintiffs.
II. DIRECT LIABILITY
Because the scope of this interlocutory appeal is limited to whether the City could be held liable under a respondeat superior theory, we cannot decide now whether the City could be held directly liable for its failure to implement a policy that adequately accommodates persons who are disabled. I note only that Jones alleged in his amended complaint that “[a]s a direct and proximate result of Defendant City‘s unlawful actions, through its own policies and the actions of its employees and agents, Plaintiff has suffered damages.” R. 32 (Am. Compl. ¶ 50) (Page ID #450) (emphasis added). I construe Jones‘s complaint as fairly encompassing a theory of direct liability and disagree with the majority that Jones forfeited that claim. See Shepherd v. Wellman, 313 F.3d 963, 967 (6th Cir. 2002) (stating that the court “construe[s] the complaint liberally in the plaintiff‘s favor” in reviewing a district court‘s grant of summary judgment). Jones did raise his alternative theory of liability, moreover, in his motion to alter or amend the judgment—the soonest Jones could respond to the district court‘s grant of summary judgment on an issue that the City did not raise below. R. 60 (Mot. to Alter or Am. J. ¶ 3, 4–5) (Page ID #1330–31). The district court did not acknowledge Jones‘s direct-liability theory in ruling on the motion. I see no reason why the district court should not address those arguments as the case proceeds.