DAMIAN FRANCOIS v. OUR LADY OF THE LAKE HOSPITAL, INCORPORATED
No. 20-30707
United States Court of Appeals for the Fifth Circuit
August 6, 2021
Before JONES, SOUTHWICK, and COSTA, Circuit Judges.
Dаmian Francois sued Our Lady of the Lake Hospital for disability discrimination. He now appeals the district court‘s grant of summary judgment to the Hospital, which dismissed his claims that the Hospital violated the Rehabilitation Act and Affordable Care Act by failing to provide an on-site interpreter until the sixth day of his hospital stay. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
According to the record, Damian Francois is a deaf and “virtually illiterate” individual who communicates primarily in American Sign Language (“ASL“). This appeal concerns whether there is evidence in the summary-judgment record that creates a genuine dispute of material fact about whether the Hospital had actual notice that an on-site interpreter was necessary to provide appropriate medical care to Francois.
On April 11, 2017, Francois was admitted to the Hospital after his uncle shot him in the back. Francois’ grandmother, Leona Deemer, testified in a deposition that she told the ambulance crew, the “lady at the front desk,” and a doctor that Francois was deaf and “needed an interpreter.” She also testified that she told Francois’ attendant nurses that he was unable to understand many written or complex words. That first night, Francois underwent emergency surgery that saved his life but did not prevent his permanent
The next morning, Francois met with John Deshotel, who was a Care Coordinator at the Hospital. Deshotel communicated with Francois in ASL, which is Deshotel‘s second language. He also spoke in English because Deemer was there too. According to Deshotel‘s sworn affidavit, he told Francois during this meeting that “the hospital wanted to meet his needs throughout his admission“; asked Francois if he needed any additional services, and Francois answered that he did not; and told Francois “if he needed any additional services, that he could ask for me and that I would come meet with him.” According to Deshotel‘s affidavit, neither Francois nor Deemer requested an interpreter during that meeting.
During Francois’ first five days, the Hospital relied on several methods of communication other than an on-site interpreter. It relied primarily on the use of a whiteboard/dry-erase board and nonverbal cues. At various times, the Hospital also relied for interpretive assistance on a board with pictures, Francois’ family, and a video remote interpreter.1
The nurses attending Francois testified that he appeared to understand their written and nonverbal communications. Allison Berry, assigned to Francois on April 12, testified to multiple instances when she communicated with Francois using the
There are hospital records showing that difficulties arose in communicating with Francois. On severаl occasions, communications with Francois about his medical history were “limited.” Two of those records, though, indicate that the Hospital was able to obtain Francois’ medical history using methods other than an on-site interpreter, i.e., “by writing questions and interviewing [Francois‘] grandmother,” and by the “use of a dry erase board and sign language through family member at bedside.”
As of April 14, his third full day in the Hospital, Francois’ medical condition was stable, but the Hospital knew that Francois was paralyzed. At that point, the Hospital was reаdy to transfer him from a trauma unit to a rehabilitation unit. That day, one of Francois’ friends, Paula Rodriguez, sent a text message to the Civil Rights Coordinator at the Hospital requesting an interpreter for Francois. It appears that the text message resulted in the Hospital‘s attempting, unsuccessfully, to use a virtual remote interpreter.
On April 15, Rodriguez visited the Hospital, told medical personnel that the virtual remote interpreter was ineffective, and requested an on-site interpreter for Francois. Rodriguez latеr testified that on April 15, Francois still did not know that he was permanently paralyzed. Instead, he thought that he would have another surgery and walk again.
The Hospital provided an on-site interpreter the next day, April 16. On that day, with an on-site interpreter present, Francois met with Dr. Malia Eischen, who explained to Francois his diagnosis and prognosis of permanent paralysis. A medical record indicates that, during this meeting, Francois’ family “expressed concern that [Francois] was not understanding communication that had previously been provided.”
Francois remained in the Hospital until May 17. From April 16 to May 17, the Hospital provided an on-site interpreter on 61 occasions.
Francois sued the Hospital in the United States District Court for the Middle District of Louisiana. In the live complaint, Francois asserted claims against the Hospital under Section 504 of the Rehabilitation Act (“RA“),
After briefing, the district court granted summary judgment in favor of the Hospital. As for Francois compensatory-damages claims, the court held that Francois failed to establish the requisite intentional discrimination because he “failed to prеsent evidence that [the Hospital‘s]
The district court dismissed all of Francois’ remaining claims with prejudice and entered final judgment for the Hospital. Francois timely appealed.
DISCUSSION
We review the grant of summary judgment de novo, applying the same standards as the district court. Smith v. Harris Cnty., 956 F.3d 311, 316 (5th Cir. 2020). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Francois contends that his need for an on-site interpreter was “open and obvious” and that the Hospital‘s failure to provide one until April 16 constitutes intentional discrimination. He claims that, because of the Hospital‘s delay in providing an on-site interpreter, Francois did not understand until the sixth day in the Hospital that he was paralyzed and wrongfully believed that he would have another surgery and walk again.
The Hospital disagrees with Francois’ view of the evidence. It asserts that the evidence shows that its staff had no reason to know that their means of communication were ineffective. The Hospital contends that an on-site interpreter was not requested until April 15, and at no time did Francois’ nurses or Deshotel have reason to believe that an on-site interpreter was necessary. The Hospital‘s position is that it took reasonable steps to accommodate Francois and arrаnged for an on-site interpreter as soon as it learned of Francois’ need for one.
First, we will explain the analytical frameworks for Francois’ claims for disability discrimination under Section 504 of the RA and Section 1557 of the ACA.
- The analytical frameworks
Section 504 of the RA prohibits disability discrimination by recipients of federal funds.
“The remedies, procedures, and rights available under the Rehabilitation Act parallel those available under the ADA.” Cadena v. El Paso Cnty., 946 F.3d 717, 723 (5th Cir. 2020). Thus, precedent interpreting or applying the ADA applies with equal force to a claim under the RA. Id.
Section 1557 of the ACA prohibits discrimination based on any of the grounds protected under Title VI, Title IX, the Age Discrimination Act, and the RA, during the provision of health care.
and “other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.”
Section 504 of the RA and Section 1557 of the ACA provide private causes of action. See RA,
To establish a prima facie case for disability discrimination under the RA, and by extension the ACA, a plaintiff must show that: (1) he has a qualifying disability; (2) hе is being excluded from participation in, denied the benefits of, or otherwise discriminated against by a covered entity; and (3) such discrimination is by reason of his disability. Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565, 574 (5th Cir. 2018). A prima facie case requires evidence that the plaintiff‘s disability, limitation, and necessary reasonable accommodation were “known by” the covered entity.
Windham v. Harris Cnty., 875 F.3d 229, 236 (5th Cir. 2017). “Plaintiffs ordinarily satisfy the knowledge element by showing that they identified their disabilities as well as the resulting limitations to [the covered] entity or its employees and requested an accommodation in direct аnd specific terms.” Smith, 956 F.3d at 317. “When a plaintiff fails to request an accommodation in this manner, he can prevail only by showing that ‘the disability, resulting limitation, and necessary reasonable accommodation’ were ‘open, obvious, and apparent,’ to the entity‘s relevant agents.” Windham, 875 F.3d at 237.6
Establishing a prima facie case entitles a plaintiff to pursue equitable relief. Miraglia, 901 F.3d at 574. Compensatory damages, however, require a showing of intentional discrimination. Id. This circuit has declined to “delineate the precise contours” of intentional discrimination. Id. at 575. At a minimum, though, “intent requires that the defendant at least hаve actual notice of a violation.” Id.
his nominal-damages claims, if any exist, are not subject to the same intentional-discrimination standard as a claim for compensatory monetary damages. As a result, to survive summary judgment, Francois must have offered evidence of intentional discrimination, which as we just stated means he must at least show the Hospital‘s actual notice. Miraglia, 901 F.3d at 574.
The district court granted the Hospital‘s motion for summary judgment because Francois failed to show intentional discrimination. A claim of intentional discrimination requires evidence sufficient for a reasonable jury to conclude that the Hospital had actual notice that its failure to provide an on-site interpreter until April 16 denied Francois an equal opportunity to participate in the medical process. We agree with the Eleventh Circuit that when “effective communication under the circumstances is achievable with something less than an on-site interpreter, then the hospital is well within its ADA and RA obligations to rely on other alternatives.” Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 836 (11th Cir. 2017). Here, the claims of intentional discrimination fail unless there is evidence the Hospital actually knew that it was not effectively communicating with Francois with the methods it was using.
We have affirmed a district court‘s finding of intentional discrimination when a hearing-impaired arrestee could not understand the police officer, the officer was aware that his attempts to communicate were ineffective, and the officer failed to try more effective methods of communication. Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 575-76 (5th Cir. 2002). We have held in a non-precedential opinion that a plaintiff raised a genuine dispute of material fact where “on several occasions, an interpreter
appeal, those arguments are forfeited. Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004); see also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (explaining that courts must “follow the principle of party presentation“).
was requested but not provided,” the hospital‘s chosen means of communication were “often ineffective,” and the hospital “ignored clear indications” that further accommodation was necessary. Perez v. Drs. Hosp. at Renaissance, Ltd., 624 F. App‘x 180, 185 (5th Cir. 2015). Most recently, we held that a plaintiff had shown intentional discrimination when a jail‘s staff was subjectively aware of a detainee‘s need for a wheelchair, accommodated her only with crutches, watched her fall while using the crutches, and still refused to provide a wheelchair. Cadena, 946 F.3d at 726.
Accordingly, our intentional-discrimination cases turn on the defendant‘s subjective awareness of the need for further accommodation.
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Analysis of the summary-judgment evidence
We now review the summary-judgment record.
First, the testimony of Francois’ linguistics expert establishes, at most, constructive notice of Francois’ need for an on-site interpreter. The expert, Dr. Judy Shepard-Kegl, stated that “writing, lipreading, and speech” were “wholly inadequate for communication access” for Francois. She explained that it would be “wishful thinking on the part of the service providers” to assume that writing, lipreading, and speech were sufficient methods of communication, and that such an assumption was “evidence of how little communication was actually happening.” A reasonable jury could conclude from the expert‘s testimony that the Hospital should have known that Francois needed further accommodation. What the Hospital should have known, though, is not evidence of actual notice.
Second, evidence that Francois in fact did not understand the nurses’ communications does not show that the Hospital (or its staff) knew that Francois was not understanding. By contrast, the nurses testified that Francois appeared to understand their written and nonverbal communications. We do not suggest that the nurses’ testimony about
successful communication is enough to secure summary judgment.8 Here, though, the record is devoid of evidence that the Hospital knew that its efforts to communicate with Francois were ineffective.
Only Deemer testified as to some evidence that made the Hospital‘s staff aware that Francois was not understanding. She testified that after a nurse wrote Francois a note, he “was just looking at her” because “he didn‘t understand what she was saying.” She also testified that he “will draw up in his shoulders or flop his hands” when he does not understand but did not indicate whether this ever happened at the Hospital. This evidence, though, does not defeat the Hospital‘s motion for summary judgment because there is no indication that the Hospital quit trying to communicate with Francois or that its efforts were ultimately unsuccessful. As а result, Deemer‘s testimony does not constitute evidence that the Hospital actually knew that only an on-site interpreter would suffice.
Third, Francois argues that his medical records show that the Hospital “knew Mr. Francois was not communicating effectively and nonetheless failed to summon or provide an ASL interpreter.” Several medical records do support that communications with Francois about his medical history were “limited.” The medical records also show, though, that Francois’ medical history wаs obtained by several methods short of bringing in an on-site interpreter, including writing questions on the
whiteboard, asking Francois’ grandmother about his medical history, and utilizing Francois’ grandmother for ASL interpretive assistance. Accordingly, the records do not show that the Hospital actually knew that nothing short of an on-site interpreter was enough. Rather, the evidence shows only that, from the Hospital‘s perspective,
Fourth, Francois argues that the Hospital‘s failure to comply with its internal policy is evidence of intent.9 The policy mirrors the regulatory requirements in that an interpreter must be utilized only if “necessary.” See
Finally, Francois argues that Deemer made a satisfactory request for an interpreter. Deemer testified that she told hospital staff upon Francois’ admittance that he “was speech and hearing impaired, and [that] he needed an interpreter.” Even with this evidence, the summary-judgment record falls short of establishing that the Hospital had actual knowledge that only an on-site interpreter would meet Francois’ needs. A patient is not entitled to an on-site interprеter merely because he or someone on his behalf requests one.
See Silva, 856 F.3d at 835-36. Rather, a patient is entitled to an on-site interpreter when necessary.
The summary-judgment evidence, viewed in the light most favorable to Francois, is sufficient for a reasonable jury to determine that the Hospital should have known that Francois needed an on-site interpreter. Fatal to Francois’ claims, the еvidence is not sufficient for a reasonable jury to determine that the Hospital had actual knowledge of Francois’ need for an on-site interpreter.
The Hospital is entitled to summary judgment because Francois failed to make a summary-judgment showing of intentional discrimination. Francois has made no attempt to argue in this appeal or in district court that his nominal-damage claims, if any exist, are not subject to the same intentional-discrimination standard. Further, Francois has expressly abandoned his claims for injunctive relief and has not pressed his claim for a declaratоry judgment on appeal. AFFIRMED.
LESLIE H. SOUTHWICK
UNITED STATES CIRCUIT JUDGE
Notes
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (