S. Baxter Jones v. City of Detroit, Mich.

                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 21a0288p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



                                                             ┐
 S. BAXTER JONES,
                                                             │
                                   Plaintiff-Appellant,      │
                                                              >        No. 21-1055
                                                             │
       v.                                                    │
                                                             │
 CITY OF DETROIT, MICHIGAN; REUBEN FLUKER; ROBIN             │
 CLEAVER; EDWARD HUDSON; ELVIN BARREN,                       │
                             Defendants-Appellees.           │
                                                             ┘

  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.
 No. 21-1055                  Jones v. City of Detroit, Mich., et al.                       Page 2


                                       _________________

                                            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 trip exacerbated existing injuries and damaged his spine.

       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, 

 et seq.; the Rehabilitation Act, 29 U.S.C.
 No. 21-1055                  Jones v. City of Detroit, Mich., et al.                      Page 3


§ 701 et seq.; and state law, 

 et seq. He also filed a claim under
§ 1983, arguing that the officers used excessive force in violation of the Fourth Amendment.

       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, 

, 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.”

. A Title II plaintiff may bring a claim for intentional discrimination or for
failure to provide a reasonable accommodation. Roell v. Hamilton County, 

(6th Cir. 2017).

       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. 

. Section 505 of the Rehabilitation Act, as it happens,
is a borrower too. It says that the “remedies, procedures, and rights set forth” in Title VI of the
1964 Civil Rights Act “shall be available” for violations of the Rehabilitation Act. 29 U.S.C.
§ 794a(a). The upshot? The remedies available for violations of Title II of the ADA and § 505
of the Rehabilitation Act are “coextensive” with those for Title VI, Barnes v. Gorman, 

 (2002), and to borrow from the district court operate like one “matryoshka doll” within
another, Jones v. City of Detroit, Case No. 17-11744, 

, at *5 (E.D. Mich. June
4, 2019).
 No. 21-1055                   Jones v. City of Detroit, Mich., et al.                        Page 4


       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., 

, 284–
85 (1998); see Barnes, 

.

       Hiler v. Brown confirms the point. 

 (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 Title VII’s remedies in the same way that Title II incorporates Title VI’s remedies.
Id. at 545. There, we looked to Title VII to determine whether a claimant could sue a supervisor
personally under the Rehabilitation Act. Id. Here, we do the same. Whether Title II imposes
vicarious liability rises and falls with whether Title VI does.

       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 42 U.S.C. §§ 2000d-1, 2000d-2, with 

, 1683; see also
Cannon v. Univ. of Chi., 

, 695–96 (1979), and the Supreme Court to our fortune has
already investigated the availability of vicarious liability under Title IX.

       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
 No. 21-1055                  Jones v. City of Detroit, Mich., et al.                     Page 5


express cause of action. Id. at 285–86. Title IX by contrast has only an implied cause of action.
See Cannon, 

. 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 

. That reality offered one more clue to the Court. “It would be
unsound,” the Court explained, “for a statute’s express system of enforcement to require notice
to the recipient and an opportunity to come into voluntary compliance while a judicially implied
system of enforcement permits substantial liability without regard to the recipient’s knowledge.”
Gebser, 

.

       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.
 No. 21-1055                   Jones v. City of Detroit, Mich., et al.                     Page 6


       What was true for Title IX in Gebser is true for Title VI today. Our court previously
suggested as much in Foster v. Michigan, 

 (6th Cir. 2014). We indicated
that the claimants “likely would not be able to establish Title VI liability . . . under a theory of
respondeat superior.” 

 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.” 

       Several other circuits agree. See, e.g., United States v. County of Maricopa, 

, 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., 

,
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, 

, 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, 

, 574–75 (5th Cir. 2002); Duvall v. County of
Kitsap, 

 (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., 

, 483 n.4 (5th Cir. 2021) (per curiam);
Plains Cap. Bank v. Keller Ind. Sch. Dist., 

, 361–62 (5th Cir. 2018) (per
curiam). The Ninth Circuit decision also did not grapple with Gebser. It relied on in-circuit
 No. 21-1055                  Jones v. City of Detroit, Mich., et al.                       Page 7


precedent without pausing to ask whether that case, a decade older than Gebser, remained good
law. Duvall, 

 (citing Bonner v. Lewis, 

, 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, 

 &
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, serious tension exists between the earlier
and later decisions.

       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, 

, 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, 

 (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., 

, 70–71 (1992);
see also Vinson, 

. 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, 

 n.3; Gebser, 524
 No. 21-1055                   Jones v. City of Detroit, Mich., et al.                     Page 8


U.S. at 287, it invoked § 5 of the Fourteenth Amendment to enact the ADA, 

(b)(4). But the distinction makes no difference to the issue at hand. Congress is free to
define the remedies available under any kind of legislation, whether enacted under § 5 of the
Fourteenth Amendment, the Spending Clause, the Commerce Clause, or the Taxing Power.
Where Congress does so, it overrides any default rule or background principle applicable to the
remedies available. Confirming the point is the ADA itself. It creates customized remedies
depending on the type of discrimination at issue and, in doing so, separately imports distinct
remedial regimes. Title I and Title III of the ADA incorporate aspects of the enforcement
regimes from Title VII and Title II of the 1964 Civil Rights Act. 

(a); 

§ 12188(a)(1). And Title II of the ADA incorporates remedies from the Rehabilitation Act,
which in turn incorporates Title VI. All we do here is honor those choices. In the face of these
express legislative policies, any concerns about the kinds of remedies available under different
types of congressional power is “quite irrelevant.” Barnes, 

 n.3.

                                                     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 of deliberate indifference in his complaint. He instead asserted that
the City was vicariously liable for the acts of its police officers. The summary judgment papers
did not address deliberate indifference. Indeed, in the hearing that followed, the district court
specifically inquired about the theory behind Jones’s failure-to-accommodate claim. The judge
asked, “[W]hat directly did the City do in violation of [the] ADA for which the plaintiff is
entitled to monetary damages?” And Jones’s attorney responded, “The City was the employer of
the individuals who failed to accommodate Mr. Jones’ need for a reasonable accommodation.”
“So it’s respondeat superior liability?” The judge clarified. “Correct,” his attorney responded.
 No. 21-1055                 Jones v. City of Detroit, Mich., et al.                    Page 9


R.85 at 9. It is too late to raise a different theory now. See United States v. Walker, 

 (6th Cir. 2010).

       We affirm.
 No. 21-1055                   Jones v. City of Detroit, Mich., et al.                     Page 10


                                       _________________

                                             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, 

 (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, 

 (2020); Univ. of Texas Sw. Med. Ctr. v. Nassar, 

 (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., 

; Babb v. Wilkie, 

 (2020); Carey v. Piphus, 

, 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, 

 (1998);
see also Meyer v. Holley, 

 (2003) (applying vicarious liability principles to the
Fair Housing Act); Burlington Indus., Inc. v. Ellerth, 

 (1998) (relying on
agency principles to hold employer vicariously liable under Title VII of the Civil Rights Act);
Meritor Sav. Bank, FSB v. Vinson, 

 (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.
 No. 21-1055                  Jones v. City of Detroit, Mich., et al.                    Page 11


See Meyer, 

. “[A]bsent an indication to the contrary in the statute itself,” we
therefore presume that Congress assumed the availability of a respondeat superior theory in
vindicating rights to be free from discrimination. Univ. of Texas Sw. Med. Ctr., 

.

       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. 

 at 285–86. Congress passed the ADA, however, in 1990, after
the Supreme Court decided Cannon v. University of Chicago, 

 (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., 

, 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

 (“No person in the United States shall, on the basis of sex, . . . be subjected to
discrimination under any education program or activity receiving Federal financial assistance.”
(emphasis added)). Without the receipt of federal funds, there could be no Title IX violation.
Drawing from contract-law principles, the Supreme Court has held that when Congress passes a
statute under its Spending Clause powers, it is unreasonable for an individual to recover damages
from a public entity that was unaware that it was violating a contractual condition. See Gebser,
524 U.S. at 286–88; see also Pennhurst State Sch. & Hosp. v. Halderman, 

 (1981).
 No. 21-1055                   Jones v. City of Detroit, Mich., et al.                       Page 12


       Congress passed Title II of the ADA, by contrast, under its authority to remedy
Constitutional wrongs under § 5 of the Fourteenth Amendment. See 

(b)(4);
Tennessee v. Lane, 

, 533–34 (2004). A substantive violation of Title II of the ADA
is a violation regardless of whether the entity receives federal funds. See 

(“[N]o 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.”). Title II of the ADA, like Title VII of the
Civil Rights Act, is an “outright prohibition” on discrimination. Gebser, 

. To
remedy the violation of a substantive right, as opposed to a condition of federal funding, an
entity must compensate the plaintiff for the harms incurred by the discrimination itself, rather
than harms incurred from a breach of contract as a third-party beneficiary.

       Given that Congress defined the wrong at issue as the outright violation of a right, the
principles underlying respondeat superior—to make sure an employer takes care properly to hire
and train its employees to prevent harm—counsel its application here. See Restatement (Third)
of Agency § 2.04 cmt. b (Am. L. Inst. 2006). As Gebser recognized, an outright prohibition
“aims broadly to eradicate discrimination.”         524 U.S. at 286 (internal citation omitted).
Respondeat superior liability helps to further that goal. In that sense, Title II of the ADA aligns
more closely with Title VII of the Civil Rights Act, which envisions vicarious liability. See
Meritor, 

; cf. Gebser, 524 U.S. at 286–87 (distinguishing Title IX from Title VII in
support of the argument that vicarious relief is unavailable for Title IX claims). Respondeat
superior extends to tortious conduct committed by employees. That principle extends naturally
to discriminatory conduct as well.

       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 

, ADA regulations
paint a different picture. In the regulations governing compliance procedures under Title II of
the ADA, a “designated agency” is directed to investigate complaints and must attempt to
resolve the dispute informally. 

(a), (c). If informal resolution fails, then an
 No. 21-1055                   Jones v. City of Detroit, Mich., et al.                     Page 13


agency is directed to notify the public entity of its findings. 

 “At any time,” however, “the
complainant may file a private suit pursuant to section 203 of the act, 

,
whether or not the designated agency finds a violation.” 

 § 35.172(d). That ADA regulations
allow the complainant to file a lawsuit at any time—whether or not the public entity received
notice of the violation—distinguishes the procedures under the ADA from Title IX’s compliance
provisions.

       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, 

. 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.

. But the majority misinterprets respondeat superior. Rooted in agency
principles, “respondeat superior is a basis upon which the legal consequences of one person’s
acts may be attributed to another person.” Restatement (Third) of Agency § 2.04 cmt. b (Am. L.
Inst. 2006) (emphasis added). In other words, respondeat superior is a “doctrine holding an
employer or principal liable for the employee’s or agent’s wrongful acts committed within the
scope of the employment or agency.” Respondeat Superior, Black’s Law Dictionary (11th ed.
2019). A plaintiff could plausibly rely on different theories of liability to vindicate the same type
of right even when the statutory underpinnings of the right are different.

       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 § 12133; Barnes v. Gorman, 

, 189–90 n.3 (2002). For that reason, the
Supreme Court in Barnes examined Title VI’s contractual nature and concluded that Title VI,
 No. 21-1055                   Jones v. City of Detroit, Mich., et al.                      Page 14


and therefore the ADA, do not permit recovery of punitive damages, regardless of the source of
Congressional power.      

 at 189–90 n.3.     Unlike punitive damages, however, respondeat
superior is not a remedy. Nor is respondeat superior a right or procedure.

       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, 

 (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,

, 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, 

 (6th
Cir. 1998) (holding that compensatory damages are available for violations of Title II of the
ADA); Doe v. BlueCross BlueShield of Tenn., Inc., 

 (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 

 (“[N]o 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.”) with 

(d) (“No person in the United States
shall, on the ground of race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance.”). And applying respondeat superior principles as a theory of
liability does not affect the procedure of filing either a Title II or a Title VI lawsuit. Respondeat
superior liability may affect who is liable but does not affect the “manner and means” by which
 No. 21-1055                   Jones v. City of Detroit, Mich., et al.                     Page 15


the right to be free from discrimination is enforced. See Shady Grove Orthopedic Assocs., P.A.
v. Allstate Ins. Co., 

 (2010).

       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, 

, Congress understood when
drafting Title II of the ADA that employer liability under a respondeat superior theory is
available generally when an employee violates an individual’s rights. Congress also understood
that Spending Clause legislation, unlike legislation enacted under § 5 of the Fourteenth
Amendment, would require that states “knowingly and voluntarily” accept the terms of a contract
and subsequently have notice when the terms of the contract were violated. See Pennhurst,

. Congress could have chosen to predicate the existence of the substantive right on
the receipt of federal funds, as in Title VI or Title IX of the Civil Rights Act. It did not do so in
defining the statutory violation. We must honor that choice.

       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
 No. 21-1055                  Jones v. City of Detroit, Mich., et al.                     Page 16


liability and disagree with the majority that Jones forfeited that claim. See Shepherd v. Wellman,

 (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.