Josephine LOEFFLER, as Administratrix of the Estate of Robert A. Loeffler and individually, Robert C. Loeffler, and Kristy Loeffler, Plaintiffs-Appellants, Joanne Amore and Ann Rappoccio, Plaintiffs v. STATEN ISLAND UNIVERSITY HOSPITAL, Defendant-Appellee.
Docket No. 07-1404-cv.
United States Court of Appeals, Second Circuit.
Argued: March 19, 2009. Decided: Oct. 6, 2009.
582 F.3d 268
* The Clerk of the Court is directed to amend the official caption to conform to the listing of the parties above.
The district court also denied leave to amend on the alternative ground that amendment would be futile. The court assessed whether plaintiffs could pierce the corporate veils of GNPOC and subsidiaries between GNPOC and Talisman: the court held plaintiffs could not pierce and that Talisman could not be liable on theories of joint venture or agency. Id. at 683-89.
We have not considered what law would be applied in seeking to pierce a corporate veil in the ATS context, and this case does not require us to reach the question. The district court discussed the issue in an abundance of caution; but we have no occasion to do so given our affirming the denial of leave to amend on good-faith grounds.
Finally, plaintiffs argue that even absent amended pleading, the district court should have considered their agency, joint venture, and veil piercing theories. We disagree. The district court concluded that these theories were insufficiently pled, and our independent review of the Second Amended Complaint supports the district court‘s conclusion.16
CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed.
Roy W. Breitenbach, Garfunkel, Wild & Travis, P.C., Great Neck, NY, for Defendant-Appellee.
Alan Jenkins, New York, NY, for amicus curiae The Opportunity Agenda.
Roger Bearden, New York Lawyers for the Public Interest, Inc., New York, NY, for amici curiae The Alexander Graham Bell Association for the Deaf and Hard of Hearing, Asian American Justice Center, The Brooklyn Center for Independence of the Disabled, The Center for Independence of the Disabled in New York, The Empire Justice Center, The Harlem Independent Living Center, Legal Services NYC, The National Association of the Deaf, National Council on Interpreting in Health Care, The National Disability Rights Network, The National Health Law Program, New York State Independent Living Council, and The New York Immigration Coalition.
Before: JACOBS, Chief Judge, WESLEY, Circuit Judge, and SAND, District Judge.**
Chief Judge JACOBS dissents from the majority of the panel as to Part II of this opinion; Judge WESLEY sets forth the decision of the court as to Part II in a separate opinion.
DENNIS JACOBS, Chief Judge:
Josephine Loeffler, (“Josephine“) acting individually and as administratrix for the estate of her deceased husband Robert A. Loeffler (“Robert“), and their two children Robert C. Loeffler (“Bobby“) and Kristy Loeffler, (“Kristy“), (collectively “the Loefflers“) appeal an order entered in the United States District Court for the Eastern District of New York (Johnson, J.) granting summary judgment to Staten Island University Hospital (“the Hospital“).
The Loefflers allege that during Robert‘s heart surgery on October 27, 1995, and his subsequent stroke and convalescence, the Hospital failed to provide a sign language interpreter to Robert and his wife, who are both deaf, in violation of numerous federal, state, and local regulations, so that their two minor children—Kristy and Bobby (of normal hearing)—were forced to interpret.
The Hospital does not contest that Robert and Josephine were deaf, that it was required by law to provide an interpreter, and that it failed to do so. The district court granted summary judgment dismissing the parents’ claims on the ground that, under Bartlett v. N.Y. State Bd. of Law Exam‘rs, 156 F.3d 321, 331 (2d Cir. 1998), vacated on other grounds and remanded, 527 U.S. 1031 (1999), the Hospital cannot be held liable for monetary damages because its failure was not a result of “deliberate indifference.” The district court dismissed the claims of the Loeffler children for lack of
For the reasons that follow, we conclude that Robert and Josephine have raised a genuine issue of material fact as to the Hospital‘s deliberate indifference, and we vacate the dismissal of all their claims. We also vacate the dismissal of Kristy‘s and Bobby‘s federal claims (for the reasons set forth in Judge Wesley‘s concurring opinion); and we vacate the dismissal of Kristy‘s and Bobby‘s claims under the New York City Human Rights Law, in light of the New York City Local Civil Rights Restoration Act of 2005.
BACKGROUND1
Robert previously had heart surgery at the Hospital in 1991. At that time, he requested an American Sign Language (“ASL“) interpreter; but though the Hospital‘s records reflected the need for one, none was provided. Kristy (age 12 at the time) and Bobby (age 9) interpreted for their father.
The present case concerns Robert‘s surgery at the Hospital in the fall of 1995. Robert was scheduled for a right carotid endarterectomy on October 27, 1995. In the days and weeks leading up to the surgery, the Loefflers made numerous attempts to secure an interpreter from the Hospital. Bobby (age 13 at the time) claims that during pre-admission testing (weeks prior to the surgery), he made a request to the operating surgeon, Dr. Nedunchezian Sithian, who “just kind of laughed it off....” Numerous other requests are alleged to have been made: by Bobby ten days before the surgery, by Bobby or Kristy (age 17 at this time) four days in advance, and by Josephine the day
At the relevant time, the Hospital‘s policy was to provide sign language interpreters:
When a physician, nurse or other professional staff member determines an interpreter is needed, and when in the opinion of the patient, effective communication cannot be established without an interpreter, the following procedure applies ... [during business hours t]he Speech and Hearing Center staff will call the interpreters on call to arrange to provide interpretation .... In the event that we cannot reach our interpreters on call, we will contact the New York Society for the Deaf. Where the need for an interpreter is known in advance ... arrangements are to be made in advance with an interpreter. (emphasis added)
“[P]ursuant to the policy, hospital staff or patients were to report requests for interpreting services to the Patient Representative Department” (“PRD“). Appellee‘s Br. at 9. The PRD was run by its Director, Patricia Ferrara, and two “patient representatives,” one of whom was Antoinette Henderson. Requests made after hours were to go to the Assistant Director of Nursing (“ADN“), who should determine whether it is necessary to contact an interpreter “on call” or “the New York Society for the Deaf.”
A. Events of October 27, 1995
On the morning of the surgery, Friday, October 27, 1995, Robert and Bobby went to the PRD to request an interpreter, and were told to go upstairs to the “pre-op
Josephine alleges that she and her sister asked Antoinette Henderson of the PRD to have an interpreter present when Robert got to the recovery room, and for a “TTY” machine, which allows the deaf to communicate (by phone or in person) with people with normal hearing, through a relay service. Henderson does not remember the Loefflers ever explicitly asking for a TTY, but recalls advising that Robert could use one if he was in a private room.
After Josephine and her sister left the PRD, Henderson began looking for an interpreter, but the Hospital‘s Speech and Hearing Department (“SHD“) asked whether the Loefflers needed an interpreter who signed ASL (the overwhelmingly predominant sign language used in the United States) or English Sign Language, and Henderson, who did not know, unsuccessfully tried to reach family members to find out.
Shortly before 4pm, Josephine (with her mother) returned to the PRD, and answered Henderson‘s inquiry as to which kind of interpreter was required. Henderson then got back in touch with SHD, and obtained four telephone numbers for ASL interpreters. Two numbers were out of service, and two were unanswered. (The Loefflers claim that the list was outdated.) Henderson told Josephine and her mother that no interpreter would be available that night, and suggested that they check the next morning if one was still needed. Henderson and the Loefflers
After the surgery, Dr. Sithian brought Bobby into the Recovery Room to interpret for his father, and told Bobby that the surgery had gone well. Bobby again asked about an interpreter, explaining to Dr. Sithian that he did not “feel comfortable doing this and ... [did not] understand some of the terms.” Dr. Sithian assured Bobby that he was “doing just fine.” According to Bobby, Dr. Sithian “patted me on the back, and laughed it off like usual.” Dr. Sithian left Bobby at his father‘s bedside in the Recovery Room.
Soon after the surgery, Robert suffered a stroke. He grabbed his ankle and writhed in pain. Bobby alerted a nearby nurse, who responded with indifference and opined that “that was how deaf people communicate.” Bobby disagreed, and she responded, “what do you know, you‘re a kid.” Bobby raised a disturbance for two to five minutes until Dr. Sithian came back.
After removing Bobby from Robert‘s bedside and caring for Robert, Dr. Sithian told Josephine (through Bobby) that Robert had suffered a stroke and needed another operation. According to Bobby, interpreting was “amazingly overwhelming” and he had trouble because he did not “know what a stroke was.”
Before Henderson left for the weekend, she advised a “charge nurse” that, if Robert was not discharged the following day (as expected), the charge nurse should call an ASL interpreter. Henderson gave the nurse the two telephone numbers that had not been disconnected. Henderson was unaware of Robert‘s stroke; the charge nurse never tried calling any interpreter that afternoon or evening.
That night, Kristy stayed overnight in the Critical Care Unit (“CCU“), in order to
B. Remainder of Hospital Stay
The Loefflers maintain that, despite their constant requests in the following days, the Hospital never obtained an interpreter. Loeffler, 2007 WL 805802, at *2. According to Bobby, Hospital personnel would put off questions by saying “we‘re working on it or ... I‘m not the person you need to talk to.” Josephine also claims she requested a TTY in order to avoid making extra car trips to the Hospital, but the request was denied. From October 27 to November 7, 1995, the family continued to rely on Kristy and Bobby, who stayed out of school to remain on duty as translators. Id. The Loefflers claim that the Hospital gave Kristy a pager so she could be “on call.” Both Bobby and Kristy claim to have suffered depression as a result of their father‘s stroke, and the role they performed in relaying medical information. Id.
According to Henderson, she noticed Robert‘s name was still on the Hospital “census” the week after the surgery, made inquiry and was told by the charge nurse that “someone else” was there to interpret, and that the Loefflers “seemed fine.” It is unclear whether the interpreter to whom the charge nurse was referring was Kristy, or someone else. At some point, Henderson spoke with her director, Nancy Ferrara, about the Loefflers’ interpreter request.
On November 6, 1995, the Loefflers filed this lawsuit in the United States District Court for the Eastern District of New York claiming that the Hospital‘s failure to provide an interpreter violated the Americans with Disabilities Act (“ADA“), Pub.L. No. 101-336, 104 Stat. 327 (1990), codified as
Within two months of the Loeffler incident, the Hospital amended its sign language interpreter policy. Id. According to Ann Marie McDonough, the Hospital‘s Associate Vice President for Rehabilitation Services, the staff is now “trained on how to identify patients who may need sign language interpreting or other communication services.” Interpreters are now paid to be available during working hours and available by pager after hours. The Loefflers have visited the Hospital on multiple occasions since the policy was amended, and received interpretive services on all but one occasion. Id.
C. Procedural history
On February 14, 1996, the Loefflers, along with JoAnne Amore and Ann Rappoccio (relatives who joined in seeking the interpreter), filed a First Amended Complaint that included claims for injunctive relief under the ADA and the New York State Patients’ Bill of Rights,
After extensive discovery, the Hospital moved for partial summary judgment. By
As to Kristy‘s and Bobby‘s claims, the district court ruled that the Hospital was not required to provide communication between Robert and his children because they were not his next of kin. Id. at *7. And since Kristy and Bobby were not themselves denied any services to which they were entitled, they had no standing to assert an associational discrimination claim under the RA, or under City HRL, which, again, the district court construed as coextensive with federal law. Id. at *7-8.
In addition, the court denied the Loefflers’ claims for injunctive relief under the
The Loefflers timely appealed. They argue principally that: (1) they raised a genuine issue of material fact as to the Hospital‘s deliberate indifference; (2) Kristy and Bobby have standing to assert associational discrimination claims under the RA; (3) the State HRL and City HRL should not be read co-extensively with their federal counterparts; and (4) the district court improperly declined to exercise supplemental jurisdiction over Robert‘s and Josephine‘s common law negligence claims.
DISCUSSION
We “review a district court‘s decision to grant summary judgment de novo, resolving all ambiguities and drawing all permissible factual inferences in favor of the party against whom summary judgment is sought.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (internal quotation marks, citation, and brackets omitted); see also
I
Under § 504 of the RA, “[n]o otherwise qualified individual with a disability in the United States, shall, solely by reason of her or his disability, be excluded
To establish a prima facie violation of the RA, a plaintiff must show that one is: (1) a “handicapped person” as defined in the RA; (2) “otherwise qualified” to participate in the offered activity or to enjoy its benefits; (3) excluded from such participation or enjoyment solely by reason of his or her handicap; and (4) being denied participation in a program that receives federal financial assistance. See Rothschild v. Grottenthaler, 907 F.2d 286, 289-90 (2d Cir. 1990).
A plaintiff aggrieved by a violation of the RA may seek all remedies available under Title VI of the Civil Rights Act of 1964 (
The standard for intentional violations is “deliberate indifference to the strong likelihood [of] a violation:” “[i]n the context of the Rehabilitation Act, intentional discrimination against the disabled does not require personal animosity or ill will. Rather, intentional discrimination may be inferred when a ‘policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result from the implementation of the [challenged] policy [or] custom.‘” Bartlett, 156 F.3d at 331 (internal citations omitted). See also Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39 & n. 13 (9th Cir. 2001).
The parties here do not dispute that the Hospital is subject to the RA, or that Robert and Josephine Loeffler are “otherwise qualified” individuals with a disability. The issue is whether the Hospital acted with “deliberate indifference” in failing to secure an interpreter for the Loefflers in the period from October 27 to November 7, 1995.
We have not defined “deliberate indifference” in this context. In Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 290-91 (1998), the Supreme Court interpreted “deliberate indifference” in the context of
[A]n official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient‘s behalf has actual knowledge of discrimination in the recipient‘s programs and fails adequately to respond.
Id. at 290. In a separate context, we have also said that deliberate indifference must be a “deliberate choice, rather than negligence or bureaucratic inaction.” Reynolds v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007) (citing Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986)).
Here, the district court concluded that no reasonable jury could find that the Hospital acted with deliberate indifference. The district court conceded that the Hospital‘s “policy at the time of Robert‘s admission required improvement, [that] the Hospital‘s employees were perhaps negligent in failing to obtain an interpreter for” the Loefflers, and that the Loefflers “suffered through an emotionally difficult ordeal that was exacerbated by the Hospital‘s inadequate efforts to provide them with an interpreter.” Loeffler, 2007 WL 805802, at *6. But the district court conceived of the Hospital‘s failures as bureaucratic inaction: “the Hospital was aware that interpretive services might be required by certain patients,” “had a system in place to provide such services when necessary,” and its employees “made numerous good-faith, though unfortunately unsuccessful, efforts to obtain an interpreter.” Id. at *5-6. The court was persuaded that Antoinette Henderson actually attempted to obtain an interpreter on October 27, and “undertook
We disagree. The record in this case can support a finding of deliberate indifference. To begin with, it is not clear that the district court construed all the facts in the light most favorable to the Loefflers. Most notably, the district court did not reference any of the Loefflers’ alleged attempts to secure an interpreter prior to surgery, or their numerous attempts to secure one afterward. According to the Loefflers, they made at least four separate attempts to secure an interpreter in the days and weeks leading up to October 27, all unheeded; and they made continual requests in the period from October 27 (the day of the surgery and the stroke) through November 7. Further, the district court did not expressly consider the Loefflers’ several requests for a TTY device, also unheeded. Nor did the district court mention Bobby‘s testimony that Dr. Sithian “laughed off” Bobby‘s requests for an interpreter.
Considering this evidence, we conclude that a reasonable jury could conclude that persons at the Hospital had actual knowledge of discrimination against the Loefflers, had authority to correct the discrimination, and failed to respond adequately. The Hospital may have had a general policy of providing interpreters, but Antoinette Henderson was unaware of any practice of scheduling an interpreter in advance, and her conduct may amount to indifference in the face of knowledge of Robert‘s need for an interpreter. Perhaps most indicative, there is evidence that Dr. Sithian—arguably a policymaker—dismissed Bobby‘s demand
There are certainly facts in the record that might lead a reasonable jury to conclude that the Hospital was not deliberately indifferent. As the district court explained, the Hospital did have a policy in place to provide interpreters, and Antoinette Henderson made some efforts on the afternoon of October 27, 1995 to find an interpreter, and the law does not require her to have succeeded. But the testimony of the Loefflers and other family members, together with the obvious shortcomings in the policy and the Hospital‘s conduct, as well as the alleged apathetic response of Dr. Sithian, notwithstanding his authority to correct the discrimination, could lead a reasonable jury to conclude that the Hospital was deliberately indifferent; and its indifference to the Loefflers’ rights may have been so pervasive as to amount to a choice.
II
The Loeffler children bring claims against the Hospital for associational discrimination—that the Hospital‘s failure to obtain an interpreter forced them to shoulder the burden of providing interpreter services, miss school, and suffer emotional distress as a result. The district court dismissed these claims on the ground that the Loeffler children lacked statutory standing under the RA.
For the reasons set forth in the concurring opinion of Judge Wesley, a majority of this panel concludes that the children do have standing to bring associational discrimination claims under the RA, and therefore reverses the district court‘s dismissal. The opinion of Judge Wesley con
III
The Loefflers brought additional claims against the Hospital under the State HRL and City HRL. Construing these statutes to be co-extensive with their federal counterparts, see, e.g., Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 & n. 6 (2d Cir. 1996); Stephens v. Shuttle Assocs., L.L.C., 547 F. Supp. 2d 269, 278 (S.D.N.Y. 2008), the district court dismissed each of these claims for the same reasons it dismissed the equivalent federal claims.4
If the district court were correct, it would be enough to vacate the dismissal of the Loefflers’ federal claims. And, indeed, we vacate the dismissal of Robert‘s and Josephine‘s State HRL claims for this reason. But, we vacate the dismissal of the Loeffler‘s City HRL claims on the separate ground that the City HRL can no longer be read as co-extensive with federal law.
Under the City HRL, places of public accommodation are required to make reasonable accommodations for persons with disabilities, and may not “refuse, withhold from or deny to such [disabled] person any of the accommodations, advantages, facilities or privileges thereof.”
City HRL claims have typically been treated as coextensive with state and federal counterparts. See, e.g., Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir. 2006) (“The standards for liability under these [state and city] laws are the same as those under the equivalent federal antidiscrimination laws.“). However, the New York City Council has rejected such equivalence. The Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 (2005) (the “Restoration Act“) amended the City HRL in a variety of ways, including by confirming the legislative intent to abolish “parallelism” between the City HRL and federal and state anti-discrimination law:
The provisions of this [] title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.
Restoration Act § 7. There is now a one-way ratchet: “Interpretations of New York state or federal statutes with similar wording may be used to aid in interpretation of New York City Human Rights Law, viewing similarly worded provisions of federal and state civil rights laws as a floor below which the City‘s Human Rights law cannot fall.” Id. § 1 (emphasis added).
In January 2009, the Appellate Division, First Department confirmed that claims under the City HRL must be reviewed independently from and “more liberally” than their federal and state counterparts:
Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 66-69, 872 N.Y.S.2d 27, 31 (1st Dep‘t 2009). See also Phillips v. City of New York, 884 N.Y.S.2d 369, 377 n. 10 (1st Dep‘t July 28, 2009).
Because claims under the City HRL must be given “an independent liberal construction,” Williams, 61 A.D.3d at 66, and because the City HRL permits associational discrimination claims, we vacate the dismissal of the Loefflers’ City HRL claims and remand to the district court for further proceedings.5 We
IV
Finally, the district court declined to exercise supplemental jurisdiction over Robert‘s and Josephine‘s common law negligence claims because all federal claims had been dismissed. See
As the Loefflers do not challenge the dismissal of their claims for an injunction under the RA, the ADA, and the New York State Patients’ Bill of Rights, any such arguments have been waived. See Norton v. Sam‘s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.“).
CONCLUSION
For the foregoing reasons and the reasons set forth in Judge Wesley‘s opinion, the district court‘s order of February 27, 2007, is vacated and remanded in part for further proceedings consistent with this opinion.
I agree with my colleagues that there is a genuine issue of material fact as to whether Staten Island University Hospital (the “Hospital“) acted with deliberate indifference towards Robert and Josephine Loeffler in failing to provide federally required sign language interpretation for the Loefflers while Robert was under the Hospital‘s care. Consequently, I concur in parts I and IV. I also agree with my colleagues’ reading of New York City‘s Human Rights Law as it applies to Bobby and Kristy Loeffler and therefore concur as to part III.
I write to express the view of two members of the panel with regard to the children‘s claims under the Rehabilitation Act of 1973 (the “RA“)1. In our view, Bobby and Kristy—by virtue of being compelled to provide sign language interpretation, forced truancy from school, and involuntary exposure to their father‘s suffering—are “person[s] aggrieved” within the meaning of the RA and therefore have statutory standing.
As this Court and others have recognized, to gain entry to the courts, non-disabled parties bringing associational discrimination claims need only prove an independent injury causally related to the denial of federally required services to the disabled persons with whom the non-disabled plaintiffs are associated. Bobby and
Under the RA, “[n]o otherwise qualified individual with a disability in the United States ... 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....”
“[A]ny person aggrieved by any act or failure to act by any recipient of Federal assistance” under the RA may bring suit.
The standing provision of the RA,
This does not relieve the person aggrieved of establishing an injury causally related to, but separate and distinct from, a disabled person‘s injury under the statute. Indeed, a failure to establish an injury and causation would create a constitutional standing issue, which, as we said in Innovative, is coterminous with statutory standing here. Innovative Health Sys., 117 F.3d at 47. In our view, Bobby and Kristy need only establish that each suffered an injury independent from their parents that was causally related to the Hospital‘s failure to provide services to their parents.
Bobby and Kristy—at least for standing purposes—have established three such injuries. First, Bobby and Kristy were forced to provide sign language interpretation. They were required to fill the gap left by the Hospital‘s failure to honor its
Bobby‘s and Kristy‘s claims are distinct from the associational discrimination claims rejected by other courts. In Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Div., 150 Fed. Appx. 424, 425, 427 (6th Cir. 2005), the court found that the plaintiff‘s alleged injury—being “deprived ... of her father‘s companionship for a period of five years“—was not an injury under Title II of the Americans with Disabilities Act3 (the “ADA“) because she “ha[d] not been denied access to or participation in any of the public services covered by Title II [of the ADA].”4 Bobby and Kristy do not claim that the Hospital‘s failure to provide a sign language interpreter injured them by preventing their father from coming home earlier or from providing care and support. Instead, they claim that they were forced to provide a service as a result of the Hospital‘s failure to honor its federally imposed obligation.
In Simenson v. Hoffman, No. 95 C 1401, 1995 WL 631804, at *6 (N.D. Ill. Oct. 24, 1995), the court held that the parents lacked standing to bring a claim under the ADA for associational discrimination, allegedly based on the discrimination by a doctor of the parents’ disabled child, because the parents “were not at the medical center for any purpose other than to seek treatment for” their child. In this case, however, Bobby and Kristy were at the Hospital for the additional purpose of attending their father and mother in order to provide services that the Hospital was required to provide. Absent the Hospital‘s failure to provide sign language interpreters—the alleged statutory violation at issue—Bobby likely would not have been present to witness his father have a stroke in the post-operating room, neither Bobby nor Kristy would have been responsible for translating medical terms to their mother that were beyond their comprehension, and neither Bobby nor Kristy would have been compelled to miss school in order to provide sign language interpretation. If Bobby and Kristy had not known sign language but instead had paid for an interpreter to resolve the problem created by the Hospital‘s failure to meet their parents’ needs would there be any question they would have a claim? What is different when two children are pressed into service by the Hospital?
In Innovative, we cited favorably the preamble to
Bobby and Kristy have suffered injuries even more direct than those of the contractor. Indeed, it seems illogical that we would protect professions and healthcare entities from injuries due to their association with disabled persons but deny that protection to non-professional family members of disabled folks who are discriminated against because of a denial of services.5
In this case, two children were required to provide a service to their parents that federal law says is guaranteed to any hearing impaired patient in a hospital. Two children had to step in and do what the Hospital was unable or refused to do—at least until ordered to do so by a federal district court.
But even if Bobby and Kristy Loeffler were required under the RA to prove they were excluded from participation in, denied the benefit of, or discriminated against under a federally assisted program, they still have standing. As stated above, federal regulation requires that the Hospital, see
There are, of course, issues of fact in this case. There is dispute as to whether the children were forced to translate for the hospital, for example, or whether the requests for interpreters were properly made. We are sending the case to trial to resolve such disputes. But these issues go to the extent of the injury suffered and the calculation of damages, not whether or not the statute itself affords them the right to claim that injury. A trial in this case will center on whether rights were violated, not if those rights exist. Once we have decided that they fall within the purview of this statute, it is then up to the jury to decide if they believe the children‘s story.
Finally, a word or two is in order with regard to the concerns expressed by our dissenting colleague. The dissent expresses the view that our determination that Bobby and Kristy are “person[s] aggrieved” within the meaning of the RA will open the courts to all manner of claims by friends and relatives of disabled persons “provid[ing] additional or complementary services to patients” such as “[a] friend lift[ing] a wheelchair up a few stairs when there is no ramp,” “a relative prepar[ing] a gluten-free meal that a hospital lacks resources to provide,” “a sister stay[ing] up all night to cheer the patient and translate from Dutch as needed, and suffer[ing] the trauma of a flatlining.” (emphasis added).
By grouping Bobby‘s and Kristy‘s claims with these examples the dissent seriously misrepresents the children‘s claims. While the dissent‘s hypothetical list of horrors may have some simplistic appeal it has no real correlation to the injuries presented here. Two children were required to provide a service to their parents that federal law says is guaranteed to any hearing impaired patient in a hospital. Two children did what the Hospital was unable or refused to do—at least until ordered to do so by a federal district court. Two children were forced to explain to their hearing impaired mother why their father was near death in terms they did not or could not understand. If our dissenting brother thinks that what Bobby and Kristy were forced to do is a “complementary service“—his phrase not ours—then our colleague is sadly mistaken. We see this case as materially different in kind. It is not the dawn of never-ending liability for the Hospital, it is what Congress required—a link to the hearing world.
Accordingly, we reverse as to Bobby‘s and Kristy‘s claims and remand them to the district court for further proceedings in accordance with this decision.
DENNIS JACOBS, Chief Judge, dissenting in part:
I respectfully dissent as to the statutory standing of Kristy and Bobby Loeffler to bring associational discrimination claims
The RA provides that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, [i] be excluded from the participation in, [ii] be denied the benefits of, or [iii] be subjected to discrimination under any program or activity receiving Federal financial assistance.”
The majority reads the phrase “any person aggrieved” in
I
Federal courts have long recognized that the phrase “any person aggrieved” supports claims for “associational discrimination” under the RA. In the first such case, a woman (not disabled) sued an airline that had refused to board her disabled husband, with whom she was traveling. Nodleman v. Aero Mexico, 528 F. Supp. 475, 479-80 (C.D. Cal. 1981). The court declined to dismiss her associational claim because the RA‘s “use of the phrase ‘any person aggrieved’ ... evinces a congressional intention to define standing to bring a private action under Section 504 as broadly as is permitted by Article III of the Constitution.” Id. at 485.
We recognized standing to assert a claim for associational discrimination under the RA in Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 46-48 (2d Cir. 1997). An addiction rehabilitation center challenged the denial of a zoning permit, alleging that the city was discriminating against the center‘s patients. Id. at 47. We relied particularly on Nodleman, and the “broad language” of the RA‘s enforcement provision. Id.
The scope of the term “any person aggrieved” is not apparent from the text of the RA itself, but it cannot be altogether limitless. Crucially, in both Nodleman and Innovative Health Sys., the plaintiffs themselves were excluded from participation in a program, or were denied services, or were discriminated against (albeit on the basis of their association with disabled persons). The plaintiffs in these cases were not “otherwise qualified indi
The decisive distinction in our case is that the Loeffler children were never excluded from participation, denied services, or subjected to discrimination. They assisted their parents in coping with an alleged violation of the RA without themselves being denied services. They may well have been injured, forced to interpret for their parents, and made to miss school (among other injuries), but the RA does not confer standing on account of these types of injuries.
A survey of cases under the ADA shows that courts have generally adhered to this distinction (implicitly or explicitly), and conferred standing as a “person aggrieved” only in cases where a plaintiff has actually been excluded, denied, or subjected to discrimination in the receipt of services. For instance, in Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Div., 150 Fed. Appx. 424, 427 (6th Cir. 2005) (per curiam), a daughter who was the subject of custody proceedings (brought by her disabled father) sued an Ohio court, alleging that the court‘s failure to accommodate her father‘s disability caused delays that deprived her of her father‘s companionship for five years. The Sixth Circuit rejected her claim: “Unlike the treatment centers in Innovative Health Sys. and MX Group, both of which were denied permits to operate, Lauren Popovich has not been denied access to or participation in any of the public services covered by Title II.”
Similarly, in Simenson v. Hoffman, No. 95 C 1401, 1995 WL 631804, at *2 (N.D. Ill. Oct. 24, 1995), a doctor refused to treat a disabled child, and screamed at the parents to get out of his office. The district court dismissed the parents’ claim for associational discrimination on the ground that the parents were not denied services: “denial of admission to a movie theater or a hotel constitutes a separate injury because the companion is denied the use of the service or facility. The [parents] were not at the medical center for any purpose other than to seek treatment for [the child]. [The child‘s] ejection, and that of his parents, was merely the final act in the decision to deny [the child] medical treatment.” Id. at *6. See also Glass v. Hillsboro School Dist. 1J, 142 F. Supp. 2d 1286, 1292 (D. Or. 2001) (noting that to prevail on a theory of associational discrimination, the plaintiffs “must allege and prove that they ... were discriminated against in obtaining those services solely because they were associated with disabled individuals“) (emphasis added).
II
The plain text of the RA—“any person aggrieved” (
We know that Congress meant to incorporate certain “standards” and judicial interpretations of the RA into the later-adopted Americans with Disabilities Act of 1990, (“ADA“),
For example, Title I of the ADA (concerning employment discrimination against qualified individuals with a disability), prohibits employers from “[e]xcluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”
Title II of the ADA (concerning public entities and public transportation) contains no express associational discrimination provision,3 but its implementing regulations provide: “A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.”
Title III of the ADA (concerning public accommodation) prohibits discriminatory conduct against associated persons thus: “It shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.”
Each of these ADA provisions imposes an unambiguous statutory standing requirement that an associated person be actually excluded or denied due to their association.
The evidence suggests that Congress interpreted the RA the same way. Under
Reading the RA and ADA together, as Congress clearly intended us to do, associational claims require an exclusion or denial of services.
III
The majority‘s wide interpretation of “any person aggrieved” has no evident limiting principle, as can be illustrated in the hospital context. Relatives and friends of patients routinely provide additional or complementary services to patients. Once a breach of duty is found under the RA, everybody and his mother (literally) will be able to submit a bill for services and injuries. A friend lifts a wheelchair up a few stairs when there is no ramp, and is injured; a relative prepares a gluten-free meal that a hospital lacks resources to
If the RA supported all these claims flowing from an initial act of discrimination, a hospital‘s liability would never end. And the hospital might have to pay twice or many times over for each service it failed to afford.6 If this were the law, the RA would in that respect grant more extensive remedies to associated persons than to persons with disabilities themselves: only the disabled would actually have to be excluded, denied, or subjected to discrimination in order to recover damages.
IV
Claims of the kind that the majority opinion recognizes create intractable administrative problems for judges and juries. The Loeffler son alleges that he was injured because he was drafted into service as an interpreter,7 that he was forced to miss school to be present at the hospital, and that because he was in the recovery room (after the doctor had left and translation duty ended) he was present when his father had a stroke. But the
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For these reasons, I conclude that the district court properly dismissed the children‘s claims for associational discrimination under the RA. In any event, the majority opinion does not prejudge the analogous question under the