Case Information
‐ v. Kaleida Health United States Court of Appeals for the Second Circuit A UGUST T ERM
N O . ‐
K ATHLEEN B IONDO ,
Plaintiff ‐ Appellant ,
v. K ALEDIA H EALTH , D/B/A B UFFALO G ENERAL M EDICAL C ENTER Defendant Appellee .
A RGUED : M AY 10, D ECIDED : A UGUST Before: J ACOBS , L EVAL , Circuit Judges ; F URMAN [*] , District Judge
. Kathleen Biondo, profoundly deaf, appeals judgment District Court Western District New York (Geraci, J.) dismissing summary judgment claim violated Rehabilitation Act by failing provide ASL interpreter. We conclude material issues fact preclude summary judgment. Vacated remanded.
A NDREW R OZYNSKI , J UYOUN H AN , AND J ENNIFER L. K ARNES , E ISENBERG & B AUM , LLP, N EW Y ORK , NY, FOR THE A PPELLANT . *2 M ARK R. A FFRONTI , R OACH , B ROWN , M C C ARTHY & G RUBER , B UFFALO , NY, FOR THE A PPELLEE .
D ENNIS J ACOBS , Circuit Judge :
Kathleen Biondo, who profoundly deaf, appeals from judgment dismissing summary judgment her claim hospital violated Rehabilitation Act failing provide American Sign Language (“ASL”) interpreter. We conclude material issues of fact preclude summary judgment.
In sought treatment Buffalo General Medical Center (“BGMC”) for recurrent episodes fainting. She husband, hearing impaired, unsuccessfully requested ASL several times during six day stay. alleged violations Section Rehabilitation Act (the “RA”), Title III Americans Disabilities Act (the “ADA”), New York State Human Rights Law (the “NYSHRL”), City Buffalo Antidiscrimination Law (the “CBAL”). United States District Court Western District New York (Geraci, J.) granted BGMC’s motion summary judgment RA ADA claims dismissed state municipal law claims without prejudice. appeals the dismissal of RA claim damages, having abandoned claims injunctive and declaratory relief pursuant to RA and ADA.
This appeal concerns whether and when hospital staff members may be considered to be acting ‘officials’ ‘policymakers’ hospital so their conduct may attributed hospital thereby establish plaintiff’s right damages ground defendant institution was ‘deliberately indifferent’ violation RA. BGMC’s internal policies require provision services in certain situations, including eliciting medical history, explaining treatment, giving discharge instructions. Because record contains evidence issue had knowledge deprivation right interpreter, power cure violation, failed cure it, summary judgment favor BGMC inappropriate.
BACKGROUND Hospital Stay. Biondo, born deaf, reads fourth ‐ fifth
grade level, has unintelligible speech, cannot lipread well. She is, however, fluent ASL. Her husband no training ASL communicates his *4 wife in combination of ASL and private signs and signals. The Biondos also communicate, with some limitations, via text message.
Biondo admitted BGMC on September 21, 2014, after she experienced several fainting episodes, tightness in her chest, and skipped heartbeats. hospital admission documentation solicits “Preferred Mode Communication”; form indicates “Written.” Nevertheless, day their arrival at BGMC, both Biondos made requests for ASL several staff: attendant working at arrival desk; nurses escorted Biondo room checked her vital signs; nurses in emergency room; nurses in department Biondo admitted. During six ‐ day hospitalization, communicated mostly by writing *5 through her husband (over his objection) when he visited.
Biondo testified she “kept requesting an interpreter, they . . . kept saying, ‘we will, we will, we will.’” App’x Biondo made these requests pointing her left ear, by writing, through her husband on his visits. No interpreter was provided during hospitalization. At some point, Biondos gave up.
During stay, Biondo provided received information her condition underwent medical procedures, without an interpreter. day after checked in, Dr. Oliva Balan obtained medical history with Mr. Biondo interpreter. No present when Dr. Donald Switzer examined Biondo for a cardiology consult when Nurse Edwin Sewastynowicz performed a vascular invasive pre procedure record, which included explanations treatments opportunity Biondo ask questions. That same day, Biondo underwent tilt table test, patient fixed table tilted until patient faints. Before test began, again unsuccessfully asked interpreter. Also before test, provided generic informed consent form description procedure administered:
[Y]ou will be placed upright position and your heart rate and blood pressure will be monitored. Medication will be given help you relax. The oxygen your blood will monitored. S. App’x 38. form also contained page authorizations and waivers. Biondo testified that she signed consent form underwent test without understanding what she was signing what test entailed. Biondo took test without husband present, testified she was scared, cried, (at one point) asked Dr. Switzer if she was going die.
On September fourth day, Biondo was visited room Nurse Jennifer DiPasquale, nurse manager unit Biondo was admitted. DiPasquale testified she communicated with Biondo via written *7 25, Biondo met with physical therapist, with whom she communicated writing; but Biondo testified she frequently pointed words shook head indicate she did understand. When discharged September communicated writing (without interpreter) with Dr. Balan discharge planner gave discharge materials signed.
BGMC’s Interpreter Policy. BGMC “Interpreter/Translation/Teletypewriter” policy (the “Interpreter Policy”) governs “process procedure identifying assessing language needs Kaleida Health [BGMC] patients.” S. App’x It states:
Kaleida Health must inform . . . patient his/her right free . . . Deaf/Hearing Impaired services. These services are provided patient, family member and/or companion no cost.
Id. policy specifies services “must provided” several circumstances, including explanation procedures, tests, treatment, treatment options, discharge instructions, determination patient’s medical history. Id. As responsibility implementation: *8 The department where the patient presents is responsible for initiating interpreter services as outlined this policy. Any department referring . . . Deaf/Hearing Impaired patient another Kaleida department must notify receiving department the patient’s identity, language s/he speaks, approximate arrival time.
Id. 164. policy advises teletypewriter machines are available, includes names phone numbers three “Kaleida Health approved community vendor organizations” provide “community face ‐ face interpreters,” from which “Departments may request an interpreter.” Id. These vendors include Deaf Adult Services, policy provides an additional phone number case “an emergent situation arises an interpreter . . . needed after normal business hours.” Id. As interpreting services others:
If patient declines offer requests family member, friend, or other party, facilitate communication on his/her behalf, such person may used only if member reasonably comfortable person will provide effective communication patient’s behalf. Staff must request patient legal representative sign “Waiver Interpreter/Translator Services,” patient’s primary language. Id. No waiver obtained use husband interpreter.
Procedural History. Biondo sued BGMC in the Western District New York on April 24, 2015, alleging claims under ADA, RA, the NYSHRL, CBAL, seeking damages, attorney’s fees, injunctive relief, declaratory judgment. Following close discovery, district court granted BGMC’s motion summary judgment. The district court dismissed RA damages claim because Biondo failed to establish deliberate indifference by showing that BGMC official was aware potential violation rights, failed respond adequately. The court found that DiPasquale only doctor or nurse whose indifference could attributed BGMC, but record did not support finding DiPasquale had any knowledge any such violation. See Biondo v. Kaleida Health, No. cv ‐ (FPG) (LGF) 2019 WL at *6 (W.D.N.Y. Apr. 10, 2018). The district court also ruled lacked standing injunctive relief because she failed demonstrate ongoing likely future injury. Id. *7. Her stated reluctance use BGMC part premised on its failure supply ASL translation services. Having *10 dismissed federal claims, the district court declined to exercise supplemental jurisdiction over NYSHRL CBAL claims. Id.
DISCUSSION
We review a grant summary judgment de novo, “construing evidence in light most favorable to nonmoving party drawing all reasonable inferences in his favor.” McElwee v. Cty. Orange, 635, (2d Cir. 2012). A moving party is entitled to summary judgment if record reveals “no genuine dispute as any material fact movant is entitled judgment matter law.” Fed. R. Civ. P. 56(a). A factual dispute genuine “if evidence is such reasonable jury could return verdict for nonmoving party.” Anderson v. Liberty Lobby, Inc., U.S. 242, (1986).
favorably her, she some interest BGMC’s services but reluctant use them light BGMC’s inadequate interpretive services. made precisely this argument opposition BGMC’s motion summary judgment. It would error conclude plaintiff lacks standing seek injunction solely because continuation violation seeks redress will dissuade using infringing service. See Friends Earth, Inc. v. Laidlaw Environment Services (TOC), Inc., U.S. (2000).
The Rehabilitation Act
Section RA prohibits a program or activity receiving federal funds from excluding or discriminating against persons based disability. See U.S.C. § 794(a). implementing regulations provide additional requirements. First, “[a] recipient provides health services or benefits shall establish procedure effective communication with persons with impaired hearing purpose providing emergency health care.” C.F.R. § 84.52(c). Second, “[a] recipient . . . employs fifteen or more persons shall provide appropriate auxiliary aids persons impaired sensory, manual, or speaking skills, where necessary afford such persons equal opportunity benefit from service question.” C.F.R. § 84.52(d)(1). While RA “does ensure equal medical treatment,” it does require “equal access equal participation patient’s own treatment.” Loeffler v. Staten Island Univ. Hosp., (2d Cir. 2009).
To establish prima facie violation RA, must show (1) “handicapped person” defined by RA; (2) “otherwise qualified” participate offered activity benefit; (3) excluded such participation solely reason handicap; (4) denied participation *12 in a program receives federal funds. Id. Monetary damages may be recovered only upon a showing intentional discrimination. Intentional discrimination does not require a showing animosity or ill will; it may be inferred when a qualifying “official,” id. at 276, or “policymaker,” id. at 275 (quoting Bartlett v. New York State Bd. Law Examiners, F.3d 321, 331 (2d Cir. 1998)), “acted at least deliberate indifference strong likelihood violation federally protected rights will result,” id. (quoting Bartlett, at 331). standard deliberate indifference set out Loeffler, in panel this Court looked Supreme Court’s holding Title IX context damages are not recoverable unless official minimum [1] has authority address
alleged discrimination institute corrective measures recipient’s behalf [2] actual knowledge discrimination recipient’s programs [3] fails adequately respond. Id. (quoting Gebser v. Lago Vista Indep. School Dist., U.S. (1998)). Loeffler explained such indifference must reflect “deliberate choice among various alternatives” may inferred mere “negligence bureaucratic inaction.” Id. (quoting Reynolds v. Giuliani, (2d Cir. 2007)). Violation of the Rehabilitation Act. The district court acknowledged “[w]hether [Biondo’s] rights were violated under the RA likely triable issue of fact.” Biondo, WL at *5. BGMC does not dispute handicapped under the RA was otherwise qualified to benefit the hospital’s services, hospital receives federal funds. While the RA does not terms require use of interpreters, reasonable jury could find, given circumstances, failure provide one deprived “an equal opportunity benefit from” hospital’s services given her limitations written English, length stay, procedures performed information imparted during stay. C.F.R. § 84.52(d)(1). BGMC does persuasively argue otherwise.
Deliberate Indifference. Having determined RA may have been *14 violated, we consider compensatory damages, are available only if defendant was deliberately indifferent potential violation RA that someone at “had actual knowledge discrimination against [plaintiff], authority correct discrimination, and failed respond adequately.” Loeffler, F.3d at
During hospitalization, both before after interaction with Nurse DiPasquale ‐‐ whose role we need not address here ‐‐ Biondo interacted number other doctors, nurses, staff claims were deliberately indifferent. BGMC argues failed argue below they are officials policymakers whose indifference may attributed BGMC, thus waived point. True, summary judgment briefs did not specifically expressly argue BGMC were officials. But BGMC did address issue either , see Def.’s Mem. Law at 11–15, No. ‐ CV ‐ (S.D.N.Y. Jan. 1, 2017) No. 51; Def.’s Reply Mem. Law at 7–10, No. CV ‐ (S.D.N.Y. March 2017) No. 55, it was BGMC’s obligation show entitlement summary judgment, Fed. R. Civ. P. 56(a); see Nick’s Garage, 113–114. issue (or was not) official was hardly discussed all: argues one sentence DiPasquale “in *15 position ‘authority to correct the discrimination.’” App’x (quoting Loeffler, at 276). failure to raise the argument therefore reflects the parties’ focus on other issues. In any event, Biondo did argue below that “BGMC staff, doctors and nurses, knew Ms. Biondo deaf and yet failed to offer her sign language interpreter,” App’x that “the conduct BGMC’s staff amounts deliberate indifference,” id., and that the staff “failed adhere to” BGMC’s policies interpreters, id.; see also id. at In these circumstances, we cannot agree issue waived.
Turning merits argument, record supports an inference had actual knowledge potential RA violation. her husband repeatedly asked nurses for an interpreter when she first arrived hospital; continued request expressed dissatisfaction written communication by, example, pointing words didn’t understand shaking head.
It uncontested did take action response Biondos’ requests. In addition, there evidence doctors nurses BGMC authority call interpreter.
First, Interpreter Policy provides “[t]he department where *16 patient presents is responsible for initiating interpreter services,” S. App’x requires a department referring a deaf patient to notify receiving department disability. That leaves uncertain which employee department responsibility for ordering an interpreter. However, Policy lists phone numbers for contacting interpreter services, indicating that authority order an interpreter is widely dispersed. Id. 165. Second, DiPasquale’s testimony further evidences that doctors nurses authority provide interpreter Biondo. DiPasquale testified if staff member determined patient could communicate effectively, “they would have go [Interpreter Policy] get interpreter inform patient ‐‐ we would provide that.” App’x 198–99. Asked “how do go about securing sign language through vendors,” DiPasquale answered, “[e]mbedded policy phone number those services contact.” Id. She also testified Interpreter Policy accessible BGMC’s intranet site, employees can access any computer within hospital. According DiPasquale, BGMC’s nurses doctors were fully empowered correct violation as was.
Taken together, the Interpreter Policy DiPasquale’s testimony create dispute of fact as whether BGMC staff ‐‐ including its doctors nurses ‐‐ had authority correct the deprivation of rights calling or requesting an for her.
BGMC argues none of BGMC who were arguably aware of deprivation person whose deliberate indifference could give rise liability damages behalf BGMC. That is, none an “official,” Loeffler, F.3d at (quoting Gebser, 524 U.S. at 290), “policymaker,” id. (quoting Bartlett, F.3d at 331). BGMC emphasizes Eleventh Circuit’s definition an official: “someone enjoys substantial supervisory authority within organization’s chain command so that, when dealing complainant, official complete discretion ‘key decision point’ administrative process.” Liese v. Indian River County Hospital District, (11th Cir. 2012); see also, id. (“[T]he purpose ‘official’ requirement ensure entity only liable deliberate indifference someone whose actions can fairly said represent actions organization.”).
We decline adopt Eleventh Circuit’s definition insofar it includes requirement a person enjoy “substantial supervisory authority” within an organization. requirement unspecific, unhelpful setting a large, ramified institution where many patients visitors do interact with a supervisor, or know how to identify one, much less how to find one. In any event, it appears to be a sufficiently flexible requirement Eleventh Circuit has applied it include nurses. See Sunderland v. Bethseda Hospital, Inc., F. App’x (11th Cir. 2017) (finding dispute fact whether nurses exercised supervisory authority when they decided what interpretative aids are appropriate deaf patient, authority take corrective measures, often were sole means deaf patients accessed an interpretive aid).
On other hand, we agree “official” or “policymaker” must be someone some “discretion ‘key decision point’ administrative process.” Liese, Given hierarchy hospital, key decision point will vary with decision made, official policymaker discretion make decision will vary accordingly. But observation already embedded our requirement official have “authority address alleged discrimination institute corrective *19 measures on the recipient’s behalf.” Loeffler, 582 F.3d at We see no reason to disturb the test set out in Loeffler. [4]
Finally, the district court ruled that the failure to provide with is attributable to “negligence or bureaucratic inaction.” Biondo, 2018 WL at *6. That may be so, a jury may so find. But finding not compelled. A jury might also find that certain staff members observed struggling to communicate, knew that she chiefly used ASL lacked education to communicate adequately writing, authority to call ASL interpreter, deliberately failed to do so notwithstanding repeated requests. facts this case are arguably worse than those of Loeffler, where least one employee “made some efforts . . . find interpreter.” For foregoing reasons, judgment district court VACATED case REMANDED further proceedings consistent this opinion.
[*] Judge Jesse M. Furman, United States District Court Southern District New York, sitting designation.
[1] The district court found, citing no evidence, that Mr. Biondo “knows ASL.” App’x 179. However, while single linguistic evaluation Mr. in record, performed Dr. Judy Shephard ‐ Kegl, found he has “good conversational signing skills (Basic Interpersonal Communication Skills[)] (BICS) in ASL,” it also found he lacks “Cognitive Academic Language Proficiency (CALP) ASL,” “[h]is signing is not ASL” but rather “a coding English into signing.” Id. at 83. Moreover, while district court noted Mr. “had experience interpreting his wife some past medical appointments,” id. at it did acknowledge Shephard Kegl’s conclusion he “neither competent, nor qualified, interpret his wife medical setting.” Id. district court’s observations fail “resolv[e] all ambiguities draw[] all reasonable factual inferences favor party against whom summary judgment sought.” Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., (2d Cir. 2017).
notes specifically asked whether sufficient: A. Whether I wrote it, stated it, I don’t remember – I do remember posing question, “Is this okay with you communicate like this?” And she said yes. Q. Okay. So you have specific memory writing Ms. Biondo, “Is it okay communicate you like this?” A. I do. App’x does specifically dispute this account, though she disputes generally she ever stated preference written communication claims forced use writing lack options. On September
[2] In concluding had “not shown she likely visit Defendant future,” district court relied part on Biondo’s deposition testimony “that she would only come back Defendant if ‘no choice.’” Biondo, WL *7. issue before us appeal, other grounds cited district court may have sufficed. However, relevant deposition testimony, construed
[3] facts Loeffler have several points similarity claim: deaf patient undergoing heart surgery (and his wife) unsuccessfully sought interpreter; one request made surgeon. Id. at 272. Loeffler identified question fact deliberate indifference because “persons Hospital had actual knowledge discrimination against [plaintiff], authority correct discrimination, failed respond adequately.” Id.
[4] We do imply that a hospital could absolve itself liability damages by failing to empower staff members have contact with patients to cure potential violations RA, such as by failing empower front line staff procure a necessary interpreter. Indeed, a hospital might be liable precisely because its policymakers fail put place policy that would reasonably enable a patient obtain relief guaranteed RA by complaining with whom contact. In that circumstance it might argued “policymaker acted with at least deliberate indifference strong likelihood violation federally protected rights will result implementation [challenged] policy.” Loeffler, F.3d (quoting Bartlett, 331). That argument especially strong cases such this where regulation expressly addresses particular need, see C.F.R. § 84.52(d)(1) (stating subject hospitals “shall provide appropriate auxiliary aids persons impaired sensory, manual, speaking skills”), effectively putting policymakers notice they must ensure hospital’s policies are reasonably capable meeting need.