      09-0685-cv(L), 09-0952-cv(XAP)
      Celeste v. East Meadow Union Free School District


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
R U LIN GS BY SU M M A R Y O RD ER D O N OT H AVE PR EC ED EN TIA L EFFEC T . C ITA TIO N TO A SU M M A R Y O RD ER F ILED A FTER J A N UA R Y
1, 2007, IS PERM ITTED AN D IS GOVERN ED BY F EDER AL R U L E O F A PPELLATE P RO CED UR E 32.1 A N D TH IS C OU R T ’S L OC AL R ULE
32.1.1. W H EN C ITIN G A SU M M A R Y O RD ER IN A DO CU M EN T FILED W ITH TH IS C OU R T , A PA RTY M UST CITE EITHER THE F ED ER A L
A PPENDIX OF AN ELECTRONIC DATABASE (W ITH TH E N OTA TIO N “ SUM M AR Y ORD ER ”). A PA R TY C ITIN G A SUM M ARY ORDER M UST
SERVE A C OPY OF IT ON A NY PA RTY NO T REPR ESENTED BY CO UN SEL .


             At a stated term of the United States Court of Appeals for the Second Circuit, held at
      the Daniel P. Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
      on the 21 st day of April, two thousand and ten.

      PRESENT:          BARRINGTON D. PARKER,
                        PETER W. HALL,
                        GERARD E. LYNCH,
                                                             Circuit Judges.
      --------------------------------------------------------------------x
      Domenick Celeste, as Father and Natural
      Guardian of Domenick Celeste, Jr., a minor
      under the age of 14 years,
                                                             Plaintiff–Appellee–Cross-Appellant,

                -v.-                                                                                      No. 09-0685-cv(L),
                                                                                                          09-0952-cv(XAP)

      East Meadow Union Free School District,*
                                                             Defendant–Appellant–Cross-Appellee.
      -------------------------------------------------------------------x

    Appearing for Defendant–Appellant                           JULIE A. RIVERA (Lewis R. Silverman, on the brief),
                                                                Rutherford & Christie LLP, New York, New York.

    Appearing for Plaintiff–Appellee:                           CLIFFORD Y. CHEN (Stephanie F. Bradley, Adam
                                                                Francois Watkins, Watkins, Bradley & Chen LLP,
                                                                New York, New York; Martin J. Coleman,


                *
               The Clerk of the Court shall revise the official caption of this case to conform to the
      caption of this summary order.

                                                                     1
                                                Woodbury, New York, on the brief), Watkins,
                                                Bradley & Chen LLP, New York, New York.

        On Appeal from a judgment of the United States District Court for the Eastern District of New

York (Wexler, J.). UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part, and

REMANDED for further proceedings in accordance with this order.

        Appellant-cross-appellee, East Meadow Union Free School District (“the District”), appeals

from a judgment and decision declining to overturn a jury verdict finding that Woodland Middle

School violated Title II of the Americans with Disabilities Act (“Title II”), 42 U.S.C. § 12131 et seq.,

and the Rehabilitation Act of 1973 (“Rehabilitation Act”), amended, 29 U.S.C. § 794 et seq.,

(collectively, “the Acts”). Appellee-cross-appellant, Domenick Celeste, as father and natural guardian

of Domenick Celeste, Jr., a former student in Woodland Middle School, appeals on the ground that

the district court’s jury charge articulated an incorrect standard of liability applicable under Title II.

We assume the parties’ familiarity with the facts and procedural history of the case.

Rule 50(b) Motion

        The District argues that the district court abused its discretion in declining to enter

judgment as a matter of law under Federal Rule of Civil Procedure 50(b). The District asserts that

(1) appellee failed to introduce any objective or expert testimony to support their allegations that

the defendant violated Title II, and (2) pursuant to Borkowski v. Valley Cent. Sch. Dist., 63 F.3d

131, 137-40 (2d Cir. 1995), as applied to Title II actions by Pascuiti v. New York Yankees, et al.,

87 F. Supp. 2d 221, 223 (S.D.N.Y. 1999), appellee was required to “suggest the existence of a

plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” The



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District argues that because the appellee erred in these two respects, his claim must fail as a matter

of law. Judgment as a matter of law under Rule 50(b) is appropriate only when, construing all

facts in favor of the prevailing party, (1) “such a complete absence of evidence supporting the

verdict” compels the conclusion that “the jury’s findings could only have been the result of sheer

surmise and conjecture,” or (2) there is “such an overwhelming amount of evidence in favor of the

movant that reasonable and fair minded [people] could not arrive at a verdict against [the moving

party].” Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (internal citations and

quotations omitted).

       We find sufficient evidence on the record for the jury to conclude that Domenick Celeste,

Jr. (“Celeste”) was denied “meaningful access” to programs offered by Woodland Middle School.

See Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003) (“[Under the ADA,] an

otherwise qualified handicapped individual must be provided with meaningful access to the

benefit that the grantee offers . . .. To assure meaningful access, reasonable accommodations in

the grantee’s program or benefit may have to be made.”) (quoting Alexander v. Choate, 469 U.S.

287, 301 (1985) (internal quotation marks omitted)). Viewing the evidence in the light most

favorable to the plaintiff, Celeste testified that because of his cerebral palsy, which forced him to

rely upon crutches when ambulatory and a wheelchair when not, minor architectural barriers in the

school forced him to take a ten minute detour each way in order to reach and return from the

athletic fields behind the school. Not only did this total twenty minute detour detract from

Celeste’s participation as a manager of the football team, but it cut almost in half his time to

participate in a typical forty-five minute physical education class. In light of this showing of an

unnecessary usurpation of Celeste’s time, we cannot conclude that the jury relied upon “sheer


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surmise and conjecture” in deciding that Celeste was denied ‘meaningful access’ to the programs

provided to all other students at Woodland Middle School. Song, 957 F.2d at 1046. The District

proffers no compelling argument why Celeste was required to present expert testimony to

establish that he was denied meaningful access to programs, nor does it cite any case law

establishing that expert testimony is necessary for a plaintiff to meet his burden in this regard.

       The District claims in the alternative that Pascuiti requires a plaintiff bringing a claim

under Title II on the basis of architectural barriers to provide evidence of “cost-effective, plausible

method[s] as to how to remedy the alleged violation[] . . ..” Defs.’ Br. at 13. Assuming arguendo

that a burden-shifting scheme is applicable to the case at bar, Celeste satisfied its requirements.

When applying the burden-shifting scheme to claims under the Rehabilitation Act, the plaintiff’s

initial burden is “not a heavy one” and requires only that he “suggest the existence of a plausible

accommodation, the costs of which, facially, do not clearly exceed its benefits,” Borkowski, 63

F.3d at 137, 140, and Celeste has met that burden. At trial, Appellee’s counsel asked Celeste

“[w]hat are you asking the school district to do?” Celeste replied: “I would like for them to put

curb cuts where I think they should be needed. For an example . . . in the back on the platform by

the gym. And [] once you are getting down from that platform they should fix the pavement to

make it more accessible to me.” Celeste also testified that the cleat cleaners installed across the

fence leading to the athletic fields should be removed because the school owns portable cleat

cleaners that could be placed near the entrance to the locker rooms. For each of the physical areas

found by the jury to have the effect of denying Celeste access to school programs, Celeste offered

plausible, simple remedies, which are de minimis compared with the corresponding benefits by




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way of access achieved. 1 We therefore affirm the district court’s denial of defendant’s Rule 50(b)

motion.

Damage Award Unsupported By The Record

       The District claims that the district court erred in refusing to vacate the jury’s damage

award. A district court’s “determination that the verdict is not excessive will not be disturbed

upon appeal unless a manifest abuse of discretion is indicated.” Botsford v. Ideal Trucking Co.,

417 F.2d 681, 683 (2d Cir. 1969). But “[w]hile a jury has broad discretion in measuring damages,

it ‘may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it

were a winning lottery ticket.’” Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 684 (2d

Cir. 1993) (quoting Nairn v. Nat’l R. R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988)).

       Celeste presented no testimony about any emotional distress resulting from the conditions

that limited his access to Woodland Middle School’s athletic fields. Insofar as emotional

damages are concerned, he testified only to feeling embarrassment at the bus depot when he was

forced to disembark from a crowded school bus by himself and at a location different from where

the rest of the students exited the bus. The jury, however, did not find that the conditions at the

bus depot violated the Acts with respect to architectural barriers. The jury found on the evidence

presented that the only cognizable architectural barriers affecting Celeste’s access to school

programs were those in and around the athletic fields. Because the jury’s findings with respect to

such barriers do not correspond with what Celeste testified was the sole source of his emotional



          1
          The jury found that there were three areas of the school that had the effect of denying
Celeste access to the programs offered there: (1) the walkway between the gym and athletic
fields, (2) the gates between the gym and athletic fields, and (3) the athletic [and/or] physical
education programs on the athletic fields.

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distress, we hold that the damages awarded by the jury are arbitrary in light of the evidentiary

record. The district court, therefore, exceeded the bounds of its discretion when it did not vacate

that award.

       Even when a district court abuses its discretion by upholding an excessive jury award,

however, a court of appeals is prohibited from reducing that jury award sua sponte. Scala, 985

F.2d at 684. Instead, the plaintiff is entitled either to a new trial on the issue of damages or to

stipulate to a remittitur of damages. See Phelan v. Local 305, 973 F.2d 1050, 1064 (2d Cir.

1992); see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2820, (2d ed. 1995)

at 216 (“If the appellate court concludes that the verdict is excessive, it need not necessarily

reverse and order a new trial. It may give plaintiff an alternative by ordering a new trial unless

plaintiff will consent to a remittitur in a specified amount.”). Because the record offers no basis

on which we could apportion damages, however this case is unamenable to remittitur and we

accordingly vacate the jury award affirmed by the district court and remand for a new trial on the

issue of damages. Cf. De Centeno v. Gulf Fleet Crews, Inc. 798 F.2d 138, 143 (5th Cir. 1986)

(“[W]here we cannot determine the reason the verdict is excessive -- because it is unclear whether

the jury improperly awarded sums . . . or whether it simply awarded excessive sums for legally

recoverable items of damage -- we elect to remand [the] case for a new damage trial.”).

Cross-Appeal

       Celeste moved for summary judgment before trial on the ground, inter alia, that the bus

depot at Woodland Middle School, as well as the sidewalk near Cynthia Drive, violated the ADA

as a matter of law. Following the close of evidence Celeste renewed his motion for summary

judgment and also moved for judgment as a matter of law. Celeste cross-appeals on the ground


                                                   6
that the district court, in denying his motions, failed to consider the heightened ADA liability

standard applicable to facilities constructed after January 26, 1992 (“new construction”), 28

C.F.R. § 35.151(a), and that had it applied the correct standard, it would have found that the bus

depot and Cynthia Drive sidewalk are non-ADA compliant as a matter of law. The defendant

does not contest the merits of Celeste’s claim that the court applied an incorrect ADA liability

standard. Instead, defendant principally argues that Celeste failed to preserve the claim for appeal.

There is no dispute among the parties that the bus depot and Cynthia Drive sidewalk were

constructed after 1992.

       We review de novo a denial of a motion for judgment as a matter of law. SEC v. DiBella,

587 F.3d 553, 563 (2d Cir. 2009). “This court must decide whether a genuine issue of material

fact exists and, if not, whether the moving party is entitled to summary judgment as a matter of

law.” Kinney v. Yerusalim, 9 F.3d 1067, 1070 (3d Cir. 1993).

       The ADA mandates that any new construction must be “readily accessible to and usable by

individuals with disabilities.” 28 C.F.R. § 35.151(a). In particular, these projects must conform

to the Uniform Federal Accessibility Standards (UFAS) or the Americans With Disabilities Act

Accessibility Guidelines (ADAAG), unless “it is clearly evident that equivalent access to the

facility or part of the facility” is accomplished by other methods. See id. § 35.151(c). The

regulations also provide specific guidelines for new pedestrian walkways and bus stops: “Newly

constructed or altered street level pedestrian walkways must contain curb ramps or other sloped

areas at intersections to streets, roads, or highways.” Id. § 35.151(e)(2); see also id. § 35.151(b);

ADAAG §§ 10.2.1(2), 4.3.2.(1) (requiring that new bus shelters “be connected by an accessible




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route to the boarding area” and should, “to the maximum extent feasible, coincide with the route

for the general public”).

        As currently designed, the bus shelter lacks a curb cut on the side where buses pick up and

drop off students each day. Instead, a disabled student seeking to board or disembark at the bus

shelter is required to use a curb cut either on the opposite side of the platform, which requires him

or her to travel in the bus lane and the adjacent driveway, or to use a curb cut more than 150 feet

away which crosses another vehicular way. These alternative routes are plainly insufficient to

qualify as accessible, falling far short of “equivalent access” and making the bus shelter all but

unusable by disabled individuals. See id. § 35.151(c). We find that the District’s recently

constructed bus shelter violates the ADA as a matter of law and remand only for a determination

of relief with respect to that facility.

        With respect to the sidewalk near Cynthia Drive, the defendant contends that it does not

“own” this property and therefore cannot be liable for any violations; however, their witness at

trial stated that the District is required to “maintain the sidewalk.” It is not clear from the

witness’s testimony what he meant when he said that the District maintains the sidewalk, but if

the District effectively controls this area and did so at the time of the new construction, then

liability may still obtain. Although the plaintiff raises claims under Title II and the Rehabilitation

Act, Title III may provide some guidance: it prohibits discrimination “by any person who owns,

leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a)

(emphasis added); see Powell v. Nat’l Bd. of Medical Examiners, 364 F.3d 79, 85 (2d Cir. 2004)

(“[T]he standards adopted by Titles II and III of the ADA are, in most cases, the same as those

required under the Rehabilitation Act.”). Under Title III, “‘to operate’ means ‘to put or keep in


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operation,’ ‘to control or direct the functioning of,’ or ‘to conduct the affairs of; manage.’”

Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 849 (9th Cir. 2004) (quoting Neff v. Am. Dairy

Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995)). If this standard extends to Title II claims, and

the District exercises the requisite control, it may still be subject to liability. Because both the law

and the facts are undeveloped on the record now before us, we remand this question to the district

court for a full inquiry in the first instance.

Conclusion

        We have considered the remainder of the parties’ arguments and found them to be

without merit. For the foregoing reasons the district court’s determination of liability under the

Acts for denial of access to school programs conducted on the athletic fields is AFFIRMED, the

award of damages is VACATED and the case is REMANDED to the district court for a new trial

with respect to damages arising out of Celeste’s denial of access to programs conducted on the

athletic fields, as well as from the construction of the bus depot, and for a new trial on liability

and damages, if any, arising from the construction of the Cynthia Drive sidewalk.



                                                       FOR THE COURT:

                                                       Catherine O’Hagan Wolfe, Clerk




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