[Plaintiffs motion for summary judgment granted in part; Defendants’ motion for summary judgment denied; Plaintiffs action for injunctive relief and Defendants’ unclean hands defense dismissed.]
OPINION & ORDER
The court has jurisdiction over the ADA claims pursuant to 28 U.S.C. § 1331; it has supplemental jurisdiction over Plaintiffs state claims pursuant to 28 U.S.C. § 1367.
Presently before the court are both parties’ motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. As will be explained further below, because Plaintiffs disability was a substantial factor in Defendants’ denial of Adam’s admission, and because Defendants failed to present any evidence of the objective reasonableness of their determination that Plaintiffs condition posed a threat to other campers, the court GRANTS, as to DMDC, Plaintiffs motion for declaratory relief. However, because the parties have not clarified the relationship between DMDC and DMBA, the court DENIES Plaintiffs motion as to DMBA at this time. In addition, because Plaintiff lacks standing to seek injunctive relief, the court DISMISSES Plaintiffs claim in that regard. The court also DENIES Defendants’ motion in its entirety, and DISMISSES Defendants’ affirmative defense of unclean hands.
I. Background
The parties disagree as to some of the facts at issue here; therefore, the court will endeavor to fairly set forth the disputed and undisputed evidence, addressing in turn DMDC’s and DMBA’s admission process, Adam’s background and application for admission to DMBA, and the relevant history of this litigation.
A. Deer Mountain Day Camp
DMDC, a camp regulated by the American Camp Association as well as the Rock-land County Department/ of Health, (Pl.’s Confidential Ex. C in Supp. of PL’s Mot. for Summ. J. (“PL’s Ex. C”), Roberta Katz
The forms are subsequently reviewed by camp nurses,
Accordingly, DMDC needs to receive applications before camp begins so as to have sufficient time to prepare camp facilities for all campers’ health needs. (Id. 37, 43-44.) It is unclear whether DMDC has a deadline for application submission, but DMDC does require that a camper provide a signed application and medical forms prior to the start of camp. (Id. 28-30, 37.) Yet it has happened that DMDC has accepted application forms on the first day of camp. (See id. 31-35.)
While DMDC’s application provides for the submission of medical information, DMDC has no policy regarding assessment of a child’s health and has no medical or admission standards; up until the events giving rise to this action, the camp had never denied admission to a child because of a medical condition.
At the same time, the camp uses “universal precautions,”
If “major” medical situations occur or when DMDC nurses have further questions or concerns during their review of applications for admission, DMDC consults Dr. William Bernstein,
B. Deer Mountain Basketball Camp
Although DMBA took place at the DMDC facility, DMDC claims that it did not operate DMBA. (Id. 16-17.) Rather, Steve Loscher, DMBA director, worked as an “outside contractor.” (Id. 53.) For the most part, Loscher’s staff ran the basketball camp, but DMDC oversaw the DMBA applications process and provided health care personnel such as the lifeguard and nurses. (PL’s Ex. D, Carol Katz Dep. 11, 12; PL’s Ex. C, Roberta Katz Dep. 19.)
The application process for DMBA was identical to that of DMDC; DMBA used the DMDC medical report and medication form, and the potential attendees of DMBA were required to submit these
C. Jane Doe
Adam contracted HIV at birth due to perinatal infection. (See id.) Adam takes antiretroviral medications to treat his condition, and his syndrome has been undetectable for years. (Id. 54.) On the advice of Dr. Neu, Adam’s HIV specialist, Adam and his mother had kept and continue to keep Adam’s HIV-seropositivity
Adam likes to play basketball, (Defs.’ Ex. 2 in Opp. to PL’s Mot. for Summ. J., Adam Doe Dep. 7; PL’s Ex. H, Jane Doe Dep. 50-51) and, in 2004, his HIV clinic recommended that he attend a basketball camp. (PL’s Ex. H, Jane Doe Dep. 50. See also PL’s Ex. A in Opp’n to Defs.’ Mot. for Summ. J., Charlotte Revesz Dep. 25.)
Bernstein is Adam’s primary pediatrician, although, from time to time, Adam has also seen Dr. David Levy.
D. Adam’s Application to DMBA
In June or July 2004, when Adam was approximately ten-years-old, Mrs. Doe met with Loscher to discuss signing Adam up to attend a summer basketball camp. (PL’s Ex. H, Jane Doe Dep. 21-22; Compl. ¶ 15.) After Mrs. Doe informed Loscher that Adam was HIV-positive, Loscher recommended that Adam attend DMBA as it
Mrs. Doe testified that she “felt funny” when Loscher reacted to Adam’s condition, (PL’s Ex. H, Jane Doe Dep. 29) but she paid the $345 admission fee, and Loscher mailed her the DMBA/DMDC application. (Id. 24, 26.)
In filling out the 2004 DMBA application, Mrs. Doe left the “Other Health Comments” line blank. (Id. 29.) She did so because of Loscher’s reaction to Adam’s illness and because Adam’s HIV doctor [Dr. Neu] told her she need not disclose Adam’s HIV infection. (Id. 29, 32.) Mrs. Doe then asked Bernstein to fill out the medical report and the camper medication form.
Bernstein agonized over whether he should disclose Adam’s HIV to DMDC. Although he did not contact Neu, he testified that he did consult with other physicians in his practice on this issue. (Pl.’s Ex. F, William Bernstein Dep. 45, 46.) Thereafter, he decided to record Adam’s HIV on the medical report and to inform DMDC about Adam.
On August 17 or 18, according to the Katz sisters, Bernstein informed them over the telephone that Adam was HIV-positive. He stated that he would not sign Adam’s medical report unless Mrs. Doe disclosed the illness.
After calling Mrs. Doe several times to inform her that DMDC had not yet received Adam’s medical forms, Gloskin finally talked with Mrs. Doe on Friday, August 20.
Mrs. Doe granted Gloskin permission to speak with Bernstein. (PL’s Ex. E, Ellen Gloskin Dep. 64; PL’s Ex. E, Ellen Gloskin Notes 1.) Thereafter, Gloskin called NCPG.
According to Gloskin and Roberta Katz, Levy reported that, although he did not know exactly why Adam supposedly missed an earlier camp that summer, he “thought [Adam] had a virus.” (PL’s Ex. C, Roberta Katz Dep. 79, 88. See also Pl.’s Ex. E, Ellen Gloskin Notes 2.) Levy also refused to give DMDC specifics on Adam, as Adam was not his patient. (Pl.’s Ex. C, Roberta Katz Dep. 79, 87-93; Pl.’s Ex. G, David Levy Dep. 35.) Thus, DMDC and Levy spoke in hypothetical. (Pl.’s Ex. C., Roberta Katz Dep. 87-93; PL’s Ex. G, David Levy Dep. 35.) Gloskin and Roberta Katz claim that Levy told them that there could be “some sort of transmission issue,” as a child like Adam could have blood in his stool or urine, and that Levy therefore recommended that DMDC use a separate pool and bathroom. (PL’s Ex. C, Roberta Katz Dep. 87-93, 102.) Levy allegedly affirmatively indicated that bleeding was a potential side effect of Adam’s medications rather than a general concern about his HIV.
According to Levy, Gloskin called him because Adam’s form “said [Adam] was HIV [-] positive, and she had some questions.” (PL’s Ex. G, David Levy Dep. 33.) Levy states that Gloskin specifically asked him whether someone could transmit HIV to another camper if he were to urinate or defecate in the pool, urinate or defecate in a toilet bowl, or participate in contact sports. (Id. 35-36, 38.) In response, Levy told Gloskin that risk of HIV transmission was “[e]xtremely unlikely” and could only happen if the person had “gross”
At this point on Friday afternoon, Gloskin and the Katz sisters worried that they had insufficient time to do research on Adam’s health. (PL’s Ex. E, Ellen Gloskin Dep. 94.) Roberta felt suspicious toward Mrs. Doe as Mrs. Doe did not disclose Adam’s medical history earlier, thereby denying the camp sufficient time to prepare themselves to keep Adam and other children safe.
On Saturday, Roberta called Mrs. Doe to let her know that they were unable to make reasonable accommodations for Adam and, as a consequence, they could not allow him to attend DMBA.
E. The Instant Action
As noted above, Plaintiff
Now, in their cross motions for summary judgment, the parties place before
II. Standard of Review
Under the familiar standard, summary judgment should be granted where “the pleadings, depositions, answers to inter
In analyzing a party’s motion for summary judgment, the court must construe the facts in the light most favorable to the nonmoving party and all reasonable inferences and ambiguities must be resolved against the moving party. Flanigan v. Gen. Elec. Co.,
III. Adam’s ADA Claim for Declaratory Relief
In order to establish a prima facie case for declaratory relief pursuant to the ADA Title III, Adam must establish that: (a) he has a “disability”; (b) Defendants are owners or operators of a place of “public accommodation”; and (c) Defendants discriminated against him, on the basis of his disability, by denying him a “full and equal opportunity” to participate in DMBA on DMDC premises. See Roberts v. Royal Atl. Corp.,
The court will therefore address below each of these elements necessary for summary judgment as to the ADA, concluding that Adam qualifies as having a disability, that the DMDC and DMBA are public accommodations for purposes of the ADA, and that Adam’s HIV played a substantial
A. Adam’s “Disability”
Although they claim that Adam is not disabled, Defendants do not dispute that Adam is HIV-positive, and the Court of Appeals has concluded that HIV infection qualifies as a disability under the ADA. Rivera v. Heyman,
Next, Plaintiff argues that DMBA and DMDC, as camps for children, qualify as “owners and operators” of “a place of public accommodation” pursuant to 42 U.S.C. § 12182(a). Defendants do not contest this issue, and, indeed, refer to themselves as “public accommodations.” CSee Defs. [DMDC] and [DMBA]’s Mem. of Law in Opp’n to PL’s Mot. for Summ. J. 22 n. 32.) Moreover, Plaintiff has clearly established that DMDC and DMBA “own” and “operate” camps. A “camp” is “[a] place in the country that offers simple group accommodations and organized recreation or instruction, as for vacationing children,” and “[a] place where athletes engage in intensive training....” American Heritage Dictionary of the English Language 276 (3d ed.1996). The ADA provides several categories of “public accommodations” into which camps fit, including “placets] of recreation,” 42 U.S.C. § 12181(7)(I), “placet[s] of education,” id. § 12181(7)(J), and “placet[s] of exercise and recreation.” Id. § 12181(7)(L). Accord 28 C.F.R. § 36.104. Therefore, Adam’s Motion for Summary Judgment as to “public accommodation” is GRANTED.
C. Defendants’ Adverse Action “on the Basis of’ Adam’s Disability
Under the ADA, a disabled individual may not “be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation....” 42 U.S.C. § 12182(a). Accords 28 C.F.R. § 36.201.
(I) the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered;[36 ]
(ii) a failure to make reasonable!37 ] modifications
(iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden [ 38 ]....
42 U.S.C. § 12182(b)(2)(A). Accord 28 C.F.R. §§ 36.301(a), 36.302(a), 36.303(a). See also 28 C.F.R. § 36.204 (“A public accommodation shall not ... utilize standards or criteria ... that have the effect of discriminating on the basis of disability”).
It follows that “[t]o establish discrimination under ... the ADA, [a] plaintiff] ha[s] three available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.” Tsombanidis v. W. Haven Fire Dep’t,
DMDC’s Intentional Discrimination:
To state a claim for intentional discrimination, or disparate treatment, under the ADA, Adam “must present evidence that animus against the protected group was a significant factor in the position taken” by Defendants. Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown,
However, Adam does not have to present direct evidence that his HIV was a significant factor in Defendants’ denial of his admission to basketball camp. Rather, Defendants’ discriminatory intent or animus “may be inferred from the totality of
Plaintiff argues that, “[e]ven crediting each of [Defendants’ various reasons for denying Adam admission [including the need to provide a separate pool and toilet as well as his secrecy surrounding HIVseropositivity], none is independent of Adam’s HIV status; rather, they are all based on stereotypes and irrational fear about people with HIV.” (PL’s Mem. of Law in Supp. of PL’s Mot. for Summ. J. 17-23.) Although Adam assumes, arguendo, that Defendants were motivated by side effects of his medications and the claim that Adam missed another summer camp, he states that these concerns do not absolve Defendants of liability so long as HIV was also a motivating factor. (Id. 23-25.) Defendants dismiss Plaintiffs allegations as merely conclusory and therefore an inadequate basis for opposing Defendants’ Motion for Summary Judgment on this issue.
But Defendants’ objection is not well founded. Rather, taking Plaintiffs facts to be true and resolving inferences in favor of Plaintiff, record evidence establishes that Adam’s HIV-seropositivity played a motivating part in DMDC’s decision to deny him admission. Testimony from Roberta Katz, as presented in her deposition, demonstrates that part of her concerns about admitting Adam related to the need for a separate pool and bathroom for HIV-positive campers. (Sees PL’s Ex. C., Roberta Katz Dep. 89-93, 103-04.) Moreover, Roberta’s concerns, also discussed in her deposition, that Mrs. Doe did not provide a full medical history, related specifically to Adam’s HIV-seropositivity as well as his HIV medications. (See PL’s Ex. C., Roberta Katz Dep. 71-72, 76-77, 102-03.) Questions posed to and specific answers received from Levy during the August 20 telephone conversation also focused on Adam’s HIV transmission and the alleged heightened risks posed by side effects of his medications. (PL’s Ex. C, Roberta Katz Dep. 80-93; PL’s Ex. E, Ellen Gloskin Dep. 81-84; PL’s Ex. E, Ellen Gloskin Notes 1; PL’s Ex. G, David Levy Dep. 35-45.) Moreover, Mrs. Doe testified that Roberta expressed concerns about Adam transmitting HIV to others. (See PL’s Ex. H, Jane Doe Dep. 39-41.) This evidence supports the inference that DMDC denied Adam admission because of his disability.
On the other hand, in response to Plaintiffs motion, Defendants have presented no evidence to raise an issue of fact for trial with regard to DMDC’s denial of admission. Defendants insist that other considerations led to their decision to deny Adam admission, such as their concern about the side effects of Adam’s medications and his alleged absence at an earlier camp. (PL’s Ex. C, Roberta Katz Dep. 75-79; PL’s Ex. E, Ellen Gloskin Dep. 82-84, 98-100.) But Defendants’ asserted alternate justifications for denying Adam admission confirm, rather than counteract, Plaintiffs allegations. Defendants particularly focus on the existence of side effects of antiretroviral medications, and present evidence to this effect. Even assuming the truth of Defendants’ allegations, however, the fact that Adam may take medications with certain side effects is inseparable from the fact that Adam is HIV-positive. Discriminating against Adam because of medicinal side effects, therefore, still constitutes discrimination on the basis of Adam’s disability. Moreover, undisputed facts from the record demonstrate that
As to Adam’s alleged illness in June, this illness only influenced DMDC’s decision to deny Adam admission in August insofar as it roused suspicion that Adam’s HIV infection made him vulnerable to contagious opportunistic infections. Hence, both of these “alternate” justifications are clearly related to Adam’s HIV, and thus confirm that the denial of admission was based on Adam’s disability. Thus, no reasonable jury could find that HIV was not a substantial factor — or, indeed, a but-for cause — in Defendants’ decision to deny Adam admittance to DMDC.
DMBA’s Intentional Discrimination:
It is not clear from the record, however, that DMDC’s intentional discrimination may also be imputed to the DMBA,
As a result, on the issue of DMDC’s disparate treatment of Adam on the basis of his disability, the court GRANTS Plaintiffs Motion for Summary Judgment. The court, however, DENIES Plaintiffs motion as to DMBA. The court also DENIES Defendants’ Motion for Summary Judgment on this issue.
Direct Threat Defense:
Finally, the court turns to Defendants’ claim that Adam’s HIV poses a direct threat to other campers’ safety so as to preclude ADA liability.
As a threshold legal matter, the ADA allows Defendants to assert an affirmative “direct threat” defense. Specifically, a public accommodation is not “require[d] to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations ... where such individual poses a direct threat to the health or safety of others.” 42 U.S.C. § 12182(b)(3). The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.” Id. Accord 28 C.F.R. § 36.208(b). “To constitute a ‘direct threat,’ the probability of significant harm must be substantial, constituting more than a remote or slightly increased risk.” Hatzakos v. Acme Am. Refrigeration, Inc., No. 03-
In making its direct threat determination, a public accommodation must:
make an individualized assessment, based on reasonable judgment that relies on cun"ent medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.
28 C.F.R. § 36.208(c) (emphasis added). Accord Sch. Bd. of Nassau County v. Arline,
In making a determination of objective reasonableness, the fact-finder’s responsibility does not involve “independently assessing] whether it believes that [Plaintiff himself] posed a direct threat.” Jarvis v. Potter,
Thus the issue presented is whether Defendants have submitted sufficient evidence to permit a jury to conclude that their threat evaluation — that there was a danger that Adam could transmit his condition to other campers — was objective
Plaintiff argues that the direct threat determination cannot rely on stereotypes or unfounded fears, and thus Defendants failed to demonstrate that Adam posed a significant risk. In addition, Plaintiff asserts that there is no “insufficient time” exception to the statutory direct threat analysis, and, even should such an exception exist, that Defendants have: provided no evidence to support their assertions. All medical information was readily available to Defendants, and yet Defendants did not attempt to educate themselves beyond asking one doctor.
Defendants argue that they were not afforded a reasonable time to conduct an individualized assessment to make a direct threat determination or to provide reasonable accommodation for that threat. Defendants claim that a small but theoretieallysound risk of transmission can be significant given the heightened danger posed by HIV infection. Moreover, Defendants deny that it was feasible for them to know all information about all diseases, and, claim, thus, it was reasonable for them to rely on Levy’s advice.
Defendants, however, have provided the court with no objective, medical evidence to support their threat determination. The only evidence Defendants present relates to the potential side effects of Adam’s medications. (See Defs.’ Exs. 2-9 in Supp. of Mot. for Summ. J.) These exhibits, however, fail to mention “bleeding” in stool or urine as side effects of Adam’s medication. In any case, whether Adam had this risk of bleeding is of limited relevance. According to public health authorities’ publications available to Defendants in 2004, HIV cannot survive outside the body, and, hence, cannot survive in a swimming pool
Nurse Gloskin
Moreover, Gloskin, as a registered nurse, had her own duty to evaluate the risk.
Defendants also argue that Levy’s advice constituted “objective” evidence on which they could rely. But Defendants are only partly correct. It is correct that a public accommodation can “consult with individual physicians as objective third-party experts.” Bragdon,
That Defendants had less than a week to make their decision does not alter the court’s conclusion. It is correct that, in certain circumstances, courts may apply a lower standard of reasonableness to a non-medically trained person with a very short time period in which to make a decision. See, e.g., Lockett,
The court agrees that Defendants were obligated to protect other campers from a very serious, life-threatening viral infection. But this obligation does not excuse Defendants’ actions when based on unsubstantiated fears, Arline,
The court recognizes the inherent difficulties in this situation. Mrs. Doe, understandably concerned to protect her son from discrimination, was not forthcoming about his condition. It is more than unfortunate that Defendants — faced with what they may have perceived as Mrs. Does’ reticence — may have felt that they lacked the specific information necessary to make a direct threat assessment. But, as a legal matter, Defendants’ feelings cannot relieve them of their duty to base a threat determination on objective medical evidence. For these reasons, as to direct threat, the court GRANTS Plaintiffs Motion for Summary Judgment, and DENIES Defendants’ Motion for Summary Judgment.
IV. Adam’s NYHRL Claim for Declaratory Relief
The elements of a prima facie case for ADA claims are also applicable in claims under the NYHRL.
V. Conclusion
In light of the foregoing, the court hereby
1. DISMISSES Plaintiffs claim for injunctive relief; and
2. DISMISSES Defendants’ defense of unclean hands; and
3. GRANTS Plaintiffs Motion for Summary Judgment of ADA and NYHRL declaratory relief, as to “disability” and “public accommodation”; and
4. GRANTS Plaintiffs Motion for Summary Judgment of ADA and NYHRL declaratory relief, as to DMDC’s discrimination “on the basis of’ Adam’s disability; and
5. Otherwise DENIES Plaintiffs Motion for Summary Judgment; and
6. DENIES Defendants’ Motion for Summary Judgment in its entirety.
The parties are directed to submit, by February 15, 2010, briefs regarding the liability of DMBA. The parties may each respond to the other’s respective filings by March 1, 2010.
It is SO ORDERED.
Notes
. Judge Donald C. Pogue of the United States Court of International Trade, sitting by designation.
. Unless otherwise indicated, all U.S.Code citations are to the 2000 edition.
. Sisters Roberta Katz and Carol Katz are DMDC owners and directors. (Pl.’s Ex. C, Roberta Katz Dep. 5, 6; Pl.’s Ex. D, Carol Katz Dep. 5.)
. The medication form is “a New York State form” and asks which medications, prescription and over the counter, a camper takes and how to administer them. (Pl.'s Ex. C, Roberta Katz Dep. 20.)
. The forms require signatures both from the child's parent and from the child’s doctor. (Pl.’s Ex. C, Roberta Katz Dep. 17; Pl.'s Ex. E, [DMBA] 2004 Application 1-4.)
. Ellen Gloskin is employed as a DMDC nurse. (PL’s Ex. C, Roberta Katz Dep. 27.) She conducts health training (Pl.'s Ex. D, Carol Katz Dep. 8) and develops and ap
As a registered nurse, Gloskin is trained in CPR and RTE ("Responding to Emergencies”). (Id. 9.) She has experience with HIV and AIDS, and has conducted training for employers on universal precautions. (Id. 10-11.) Earlier in her career, Gloskin worked as a pediatric medical child program manager in a hospital. (Id. 9.) Based on her experience in this former job, Gloskin believes that patients can have stools with blood in it and blood may get on the toilet seat; this blood could potentially spread any number of diseases. (Id. 13-15.) Therefore, HIV-positive patients would use a separate bathroom. (Id. 14, 18.) Gloskin has provided household members information on the transmissibility of HIV, including proper cleaning and hygiene. (Id. 21-22.) However, Gloskin has never counseled a patient to use a different toilet from other family or household members. (Id. 22-23.)
. Medical conditions that DMDC has researched in this process include diabetes, asthma, mental health problems, allergies, epilepsy or seizure disorders, lack of lungs or kidneys, and ocular implants. (PL's Ex. C, Roberta Katz Dep. 24, 39-40, 84.)
. Although no child has been denied admission, should a child have a communicable disease like tuberculosis or the chicken pox, DMDC would likely prevent the child from attending camp. (PL's Ex. E, Ellen Gloskin Dep. 47.) DMDC has sent children home when they have contracted these illnesses. (Pl.’s Ex. C, Roberta Katz Dep. 46.)
. The Centers for Disease Control and Prevention ("CDC”) define “universal precautions” as:
a set of precautions designed to prevent transmission of [HIV], hepatitis B virus (HBV), and other bloodborne pathogens when providing first aid or health care. Under universal precautions, blood and certain body fluids of all patients are considered potentially infectious for HIV, HBV and other bloodborne pathogens.
Universal precautions apply to blood, other body fluids containing visible blood, semen,
Universal precautions involve the use of protective barriers such as gloves, gowns, aprons, masks, or protective eyewear, which can reduce the risk of exposure of the health care worker's skin or mucous membranes to potentially infective materials. In addition, under universal precautions, it is recommended that all health care workers take precautions to prevent injuries caused by needles, scalpels, and other sharp instruments or devices. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, Universal Precautions for Prevention of Transmission of HIV and Other Bloodborne Infections (1996) http://www.cdc.gov/ncidod/ dhqp/bp_universal_precautions.html. (See also PL's Ex. G, David Levy Dep. 42-43.)
. Bernstein has practiced pediatric medicine for over 41 years and is the main owner of and practices at the New City Pediatric Group ("NCPG”). (Pl.’s Ex. F, William Bernstein Dep. 7.) Bernstein has treated HIV-positive children and usually consults with their specialists. (Id. 15-16, 18.) He has taken extra courses on HIV but, by his own admission, has no special HIV training. (Id. 16.)
. Bernstein has volunteered his time for three camps for over 30 years. (PL's Ex. F, William Bernstein Dep. 9-10.)
. Jane Doe and her husband adopted Adam when he was a baby. (Pl.’s Ex. H, Jane Doe Dep. 7.)
. Individuals whose blood serum contains HIV-antibodies have HIV-seropositivity.
. Dr. Levy worked as a pediatrician at NCPG from August 2002 through March 2005. (PL's Ex. G, David Levy Dep. 10.) He has been a member of the American Academy of Pediatrics since 1999. (Id. 14.) In addition, Levy saw patients with HIV at clinics while in medical school and as a resident. (Id. 20.) Adam was the only HIV patient Levy treated al NCPG, and Levy never consulted Adam's specialist. (Id. 20-21.)
. There is some debate between the parties whether Adam had missed an earlier basketball camp, in the summer of 2004, due to illness. According to NCPG records, on June 8, 2004, almost two months before the start of DMBA, another NCPG doctor treated Adam for fever and sore throat associated with a streptococcus infection, and placed Adam on antibiotics for 10 days. (PL's Ex. F, William Bernstein Dep. 72-73.) Further, Gloskin's notes recorded that Mrs. Doe had stated that Adam missed a prior basketball camp due to illness. (PL's Ex. E, Ellen Gloskin Dep. 77-78; PL's Ex. E, Ellen Gloskin Notes 2.)
However, Bernstein noted that he would have a record if Adam wanted to attend a camp before DMBA, but his medical file on Adam does not contain any forms or other information about any earlier camp. (PL’s Ex. F, William Bernstein Dep. 71.) Mrs. Doe testified that Adam did not contract any virus in the summer of 2004. (PL's Ex. H, Jane Doe Dep. 68.) According to Mrs. Doe, Adam did not attend the prior camp because Mrs. Doe did not have adequate transportation. (Id. 18-19.)
. During 2004, Adam was taking antiretroviral medications twice daily, i.e., in the morning and at night and not during camp hours. (PL’s Ex. H, Jane Doe Dep. 14-15.)
. Bernstein could not recall whether Mrs. Doe requested him not to disclose Adam’s HIV status, but he stated that it was possible that he encouraged Mrs. Doe to tell DMDC. (PL’s Ex. F, William Bernstein Dep. 66-68.) Mrs. Doe testified that, before Bernstein completed the forms, she bumped into him in NCPG:
the next time I[saw] Dr. Bernstein he told me I put him in a very difficult situation and I got the feeling either he works for [DMDC] or he was working with somebody from [DMDC]. And he said I have to tell them about [Adam's] illness. And I said [”]do you have to[”] and he said ["]yes[”]....
(PL’s Ex. H, Jane Doe Dep. 31-32.) Mrs. Doe also did not want to list Adam's antiretroviral medications, as he would not be taking them during the camp hours. (Id. 34.)
. Bernstein admitted that he may have made a mistake in disclosing Adam's HIV, but claimed “it is better to do that than to sit here and tell you I’m not going to call the camp and tell them that this child has HIV.” (PL’s Ex. F, William Bernstein Dep. 57.) He did not remember asking Mrs. Doe for her permission to disclose Adam’s status. (Id.)
. According to Mrs. Doe, at some point she called Gloskin and informed her that Adam was HIV-positive, and Gloskin responded that
. Defendants give two reasons for this phone call to NCPG: (1) to figure out why Adam had missed another camp that summer (PL’s Ex. C, Roberta Katz Dep. 82; PL’s Ex. E, Ellen Gloskin Dep. 73) and (2) to understand the side effects of Adam's medications. (PL’s Ex. E, Ellen Gloskin Dep. 79-80.)
. Gloskin testified that she did not think that blood in the pool was a problem until Levy told her to be "cautious.” (Pl.’s Ex. E, Ellen Gloskin Dep. 90.) Although she had her doubts, she went with what he said. {Id. 88-90.) It was Gloskin’s understanding that, by and large, HIV is not transmissible in a swimming pool so long that the pool is properly clean and chlorinated. (Pl.'s Ex. E, Ellen Gloskin Dep. 13, 88-89.) However, she did mention that HIV in feces could make the pool potentially unsafe for a period of time even if properly chlorinated. {Id. 88-89.) In addition, according to Gloskin, it is possible to transmit HIV on a toilet. {Id. 13.)
The Katz sisters knew that HIV was blood-borne. (PL's Ex. D, Carol Katz Dep. 30.) But because they considered that different diseases and medications affected children in different ways, they did not do any background research specifically on HIV. {Id. 29.)
.Gloskin recorded in her notes that she “[a]sked Dr. Levy if [Adam] had accident (urinate) in pool would pool be safe.” (PL's Ex. E, Ellen Gloskin Notes 1; PL's Ex. E, Ellen Gloskin Dep. 79.) Levy apparently answered that "[i]t would only be a problem if blood in urine” and "[i]f [Adam] bi[ed] in bathroom it would have to be cleaned appropriately.” (Pl.’s Ex. E, Ellen Gloskin Notes 1; PL’s Ex. E, Ellen Gloskin Dep. 81.)
. "Gross” in this context connotes visible blood. (PL’s Ex. G, David Levy Dep. 60-61.)
. When Roberta discovered that Loscher already knew of Adam’s HIV-seropositivity, this fact "hit [her] like a truck.” (PL’s Ex. C., Roberta Katz Dep. 113.)
. Roberta did not call Mrs. Doe on Friday because it was after business hours and she had other important things to attend to. (PL’s Ex. C, Roberta Katz Dep. 95.)
. Mrs. Doe testified that Roberta told her:
that [Adam] would not be allowed to come to the camp because they didn’t have enough medical research done. So I turned around and I said to her ["]I thought this was a medically supervised placed”] She said [”]it is[”] and I said ['dwell, you know what is the problem,[”] and she said [”]it is not like it is arts and crafts they can get hurt[”] I said ["]I’m well aware of basketball I have cement in the back, we put cement in the back and we did put a basket — a hoop up for [Adam] to play.[”]
. Mrs. Doe, however, does not remember Roberta mentioning the need for a separate pool or toilet for Adam. (Pl.'s Ex. H, Jane Doe Dep. 43.)
. Mrs. Doe then called Levy to ask him about his comments; Levy told her that he did not recommend to anyone at DMDC that they disallow Adam from attending DMBA. (Id. 43-44.)
. Plaintiff brings this action by and through his parent and natural guardian Jane Doe.
. Congress enacted the ADA to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Henrietta D. v. Bloomberg,
Only Title III is implicated in this case.
. While neither party has moved for summary judgment on Defendants’ "unclean hands” defense, discovery has concluded in this case and "[t]he record ... reflects] the losing party’s inability to enhance the evidence supporting its position and the winning party's entitlement to judgment.” Ramsey v. Coughlin,
Assuming arguendo, then, that an unclean hands defense is applicable to an ADA claim, the court analyzes the record to determine whether, under New York law, there is sufficient evidence to support the elements of an unclean hands defense. According to New York law, the doctrine of unclean hands requires the defendant to prove that (1) the plaintiff is guilty of immoral, unconscionable conduct; (2) the conduct was relied upon by the defendant; and (3) the defendant was injured thereby. Nat'l Distillers & Chem. Corp. v. Seyopp Corp. [
It follows that Plaintiff’s actions cannot support Defendants’ alleged claim of unclean hands. The court therefore this case and "[t]he record ... reflects] the losing party's inability to enhance the evidence supporting its position and the winning party’s entitlement to judgment.” Ramsey v. Coughlin,
Assuming arguendo, then, that an unclean hands defense is applicable to an ADA claim, the court analyzes the record to determine whether, under New York law, there is sufficient evidence to support the elements of an unclean hands defense. According to New York law, the doctrine of unclean hands requires the defendant to prove that (1) the plaintiff is guilty of immoral, unconscionable conduct; (2) the conduct was relied upon by the defendant; and (3) the defendant was injured thereby. Nat’l Distillers & Chem. Corp. v. Seyopp Corp. [
It follows that Plaintiff's actions cannot support Defendants' alleged claim of unclean hands. The court therefore grants to Plaintiff summary judgment on this defense.
. Plaintiff additionally asks the court for injunctive relief pursuant to the ADA and NYHRL. However, Plaintiff has presented no evidence that he still wishes to attend DMBA or DMDC; instead, according to Mrs. Doe, Adam has no interest in attending any camp at all. (See Pl.’s Ex. H, Jane Doe Dep. 55.) Adam has failed to demonstrate a "plausible intention or desire to return” to DMBA or DMDC "but for barriers of access of which he is aware." Shaywitz v. Am. Bd. of Psychiatry & Neurology,
Plaintiff does not seek monetary damages pursuant to the ADA. (See Compl. 11-12.)
. Pursuant to statute, DOJ issues regulations implementing Title III of the ADA. See 42 U.S.C. § 12186(b). The court accordingly defers to these regulations to the extent they are reasonable constructions of the ADA. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
As applicable here, these DOJ regulations recognize HIV-seropositivity as a disability. See 28 C.F.R. pt. 36, App. B (2004). See also 28 C.F.R. pt. 35, App. A. Accord 18 Op. Off. Legal Counsel 141, 142-43 (1994); 12 Op. Off. Legal Counsel 209, 214-18 (1988); 29 C.F.R. pt. 1630, App., § 1630.2(j)-
. S.Rep. No. 101-116, at 19 (1989) (quoting the Presidential Comm’n on the HIV Epidemic recommendations that "[a]ll persons with symptomatic or asymptomatic HIV infection should be clearly included as persons with disabilities who are covered by the anti-discrimination protections of this legislation”); id. at 22 (“As noted by the [DOJ] ... a person infected with [HIV] is covered under the first prong of the definition of the term ‘disability.’ ”); H.R.Rep. No. 101-485, pt. 2, at 52 (1990), U.S.Code Cong. & Admin.News 1990, pp. 445, 475 (same); H.R.Rep. No. 101-485, pt. 3, at 75, U.S.Code Cong. & Admin.News 1990, pp. 445, 498 (“Individuals who are homosexual or bisexual and are discriminated against because they have a disability, such infection with [HIV], are protected under the ADA.”); H.R.Rep. No. 101-485, pt. 4, at 75, U.S.Code Cong. & Admin.News 1990, pp. 445, 498 (same); Americans with Disabilities Act of 1988; Joint Hearing on S. 2345 Before the Subcomm. on the Handicapped of the S. Comm, on Labor and Human Resources and the Subcomm. on Select Education of the H. Comm, on Education and Labor, 100th Cong., 2d Sess. 51, 53 (1988) (Ch. 9 of the Report of the President’s Comm'n on the [HIV] Epidemic) ("The Commission supports the position that Section 504 [of the Rehabilitation Act] coverage applies to persons who are HIV[-] positive yet asymptomatic.”); id. 39 (Statement of Adm. James Watkins, Chairperson of President’s Comm’n on the [HIV] Epidemic) (“[T]he Commission was confronted with a problem of discrimination against individuals with HIV[-]seropositivity and all states of HIV infection"); Americans with Disabilities Act of 1989: Hearings on S. 933 Before the S. Comm, on Labor and Human Resources and the Subcomm. on the Handicapped, 101st Cong., 1st Sess. 612, 612-23 (1989) (Overview of AIDS and HIV Case Law Prepared by Chai R. Feldblum, Legislative Counsel for ACLU AIDS Project) (explaining extension of disability protection to those with asymptomatic HIV with respect to the Rehabilitation Act and the Fair Housing Act); Americans with Disabilities Act of 1989': Hearings on H.R. 2273 Before the H. Comm, on the Judiciary and the Subcomm. on Civil and Constitutional Rights, 101 Cong., 1st Sess. 170 (1989) (Statement of Rev. Scott Allen, Comm’n for National Comm'n on AIDS) (“All persons with symptomatic or asymptomatic HIV infections should be clearly included as persons with disabilities, who are covered by the antidiscrimination protections of [the ADA] legislation.”).
.Public accommodations are therefore prohibited from, on the basis of disability: subject[ing] an individual or class of individuals ... directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from [its] goods, services, facilities, privileges, advantages, or accommodations....
42 U.S.C. § 12182(b)(l)(A)(I). Accord 28 C.F.R. § 36.202(a). in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;
. That said, "[a] public accommodation may impose legitimate safety requirements that are necessary for safe operation.” 28 C.F.R. § 36.301(b). But these "safety requirements” must be "based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” Id.
. "[T]he determination of whether a particular modification is 'reasonable' involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question and the cost to the organization that would implement it.” Staron v. McDonald’s Corp.,
. An "undue burden" connotes "significant difficulty or expense.” 28 C.F.R. § 36.303(a).
. A public accommodation also has affirmative responsibilities, including
maintain[ing] in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities....
Id. § 36.211.
. Supreme Court case law may indicate that the Court would disapprove of this causation standard, and would instead mandate a higher "but-for” standard. See Gross v. FBL Fin. Servs., Inc., - U.S., -, -,
. Although Mrs. Doe mentioned an adverse reaction she received from Loscher after she informed him of Adam's HIV infection (Pl.’s Ex. H, Jane Doe Dep. 29), Plaintiff does not allege that any actions on the part of Loscher or any other DMBA — specific staff constituted discrimination against him.
. Defendants have both moved for summary judgment on this affirmative defense. Regardless of whether DMBA is responsible for DMDC’s actions, the resolution of this issue affects both parties. The court will thus assume, for purposes of its direct threat analysis, that Defendants acted in concert.
. (Pl.’s Further Ex. A, Walter R. Dowdie, Approaches to Prevention of HIV Infection, in Report of the Surgeon General’s Workshop, supra note 30, at 20 (HIV not spread 'through water’); Pl.’s Further Ex. B, Centers for Disease Control, Department of Health and Human Services, HIV and Its Transmission 1 (July 1999) (no instances of water transmission); Pl.’s Ex. L, 100 Questions and Answers about AIDS/HIV, supra note 30, at 4, 9.) See also Centers for Disease Control, U.S. Department of Health and Human Services, Understanding AIDS 3 (1988), available at http:// profiles.nlm.nih.gov/QQ/B/D/R/L/_/qqbdrl.pdf.
. (Pl.’s Further Ex. B, HIV and Its Transmission, supra note 42, at 2 (HIV not transmitted by contact with “environmental surfaces’’ and household instances of transmission are “very rare”); Pl.’s Ex. L, 100 Questions & Answers about AIDS/HIV, supra note 30, at 4-5, 9 (HIV not transmitted on a toilet seat).) See also Centers for Disease Control, U.S. Department of Health and Human Services, HIV and AIDS: Are You at Risk? 4 (Mar.2000), available at http://www.nebraskaprevlink.ne.gov/ clearinghouse/catalog/health_mental — health/ infectious — diseases/hivaidsrisk.pdf (same); New York State Department of Health, HIV and AIDS Facts 7 (2004), http://www.health.
. (Pl.’s Further Ex. A, Martha F. Rogers, Transmission of Human Immunodeficiency Virus Infection in the United States, in Report of the Surgeon General’s Workshop, supra note 30, at 19 (HIV transmission through casual contact is “extremely rare” to nonexistent); Pl.’s Further Ex. A, Dowdie, supra note 42, at 20 (same); Pl.'s Further Ex. B, HTV and Its Transmission, supra note 42, at 3 (HIV not transmitted through sweat); Pl.'s Ex. L, 100 Questions & Answers About HIV/AIDS, supra note 30, at 23 ("highly unlikely” that HIV will be transmitted while playing football, schoolyard fights, or other sports).)
. Defendants question the wisdom of requiring public accommodations to surf the internet for information that is likely inaccurate. Defendants are partially correct in that none of the ADA opinions, including this one, come close to requiring a public accommodation to sift through potential misinformation from online sources. But such a limitation does not affect the probative value of the views of public health authorities. Simply because CDC and other public health authorities’ publications are available online does not necessarily make these publications any less reliable.
. Although Gloskin was not the final decision maker, she substantially contributed to the decision to deny Adam admission. Her actions are imputed to DMDC via vicarious liability. See Bowen v. Rubin,
. Gloskin even expressed doubts as to Levy’s alleged suggestion that HIV was transmissible in a swimming pool, but she nonetheless went with what he said. (Pl.'s Ex. E, Ellen Gloskin Dep. 90.) Neither Gloskin nor the Katz sisters did any additional research to confirm Levy’s opinion. (Pl.’s Ex. C, Roberta Katz Dep. 100.)
. In Bragdon, the Supreme Court approved of the circuit court’s refusal to consider medical evidence unavailable to the defendant when he made his decision. Bragdon,
. Defendants heavily rely on Doe v. Woodford County Bd. of Educ.,
. The NYHRL’s definition of "disability” is broader than that in the ADA. See State Div. of Human Rights v. Xerox Corp.,