DocketNumber： Docket 07-1404-cv
Judges： Jacobs, Wesley, Sand
Filed Date： 10/6/2009
Status： Precedential
Modified Date： 11/5/2024
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.
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, 119 S.Ct. 2388, 144 L.Ed.2d 790 (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.
BACKGROUND
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 before. (She says the Hospital confirmed the request). The Hospital maintains that they have no records showing any such requests.
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)
“[Pjursuant 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 disagree as to whether any objection was registered.
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 fíne.” 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 42 U.S.C. §§ 12101-12213. The district court issued an order to show cause compelling the Hospital to provide a sign language interpreter. On November 8, 1995, the Hospital stipulated to all requested relief, and thereafter provided Robert with interpretive services for the duration of his stay. Loeffler, 2007 WL 805802, at *3. (Robert was finally discharged from the Hospital at some point in December 1995.)
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, 10 N.Y.C.R.R. § 405.7(a)(7); and monetary damages under the Rehabilitation Act of 1973 (the “RA”), Pub.L. No. 93-112, 87 Stat. 355, codified in relevant part at 29 U.S.C. §§ 794-794a; the New York State Human Rights Law (“State HRL”), N.Y. Exec. Law § 292; the New York City Human Rights Law (“City HRL”), N.Y.C. Admin. Code § 8-101 et seq.; and common law negligence. The Loefflers also sought punitive damages.
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.
In addition, the court denied the Loefflers’ claims for injunctive relief under the ADA and the New York State Patients’ Bill of Rights,
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 Fed.R.Civ.P. 56(c).
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 from the participation in, be denied the
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 (42 U.S.C. § 2000d et seq.), including monetary damages. See 29 U.S.C. § 794a(a)(2). However, monetary damages are recoverable only upon a showing of an intentional violation. See Bartlett, 156 F.3d at 331 (“The law is well settled that intentional violations of Title VI, and thus the ADA and the Rehabilitation Act, can call for an award of money damages.”).
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, 118 S.Ct. 1989, 141 L.Ed.2d 277 (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, 118 S.Ct. 1989. 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, 106 S.Ct. 1292, 89 L.Ed.2d 452 (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 additional efforts to locate an interpreter for [the Loefflers] the following week.” Id. at *6. Thus, the court concluded that “the record in this case, even when viewed in a light most favorable to Plaintiffs, cannot support a finding of deliberate indifference.” Id.
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 constitutes the opinion of the Court as to this issue. I dissent, and would affirm the district court’s dismissal of the children’s associational discrimination claims. My reasons are set forth in a separate, dissenting opinion.
Ill
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.
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.” N.Y.C. Admin. Code § 8-107(4)(a). The City HRL also explicitly allows “associational discrimination” claims: “The provisions of this section set forth as unlawful discriminatory practices shall be construed to prohibit such discrimination against a person because of the actual or perceived ... disability ... of a person with whom such
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:
As a result of [the Restoration Act], the City HRL now explicitly requires an independent liberal construction analysis in all circumstances, even where state and federal civil rights laws have comparable language. The independent analysis must be targeted to understanding and fulfilling what the statute characterizes as the City HRL’s “uniquely broad and remedial” purposes, which go beyond those of counterpart state or federal civil rights laws.... As New York’s federal and state trial courts begin to recognize the need to take account of the Restoration Act, the application of the City HRL as amended by the Restoration Act must become the rule and not the exception....
[T]he Restoration Act notified courts that (a) they had to be aware that some provisions of the City HRL were textually distinct from its state and federal counterparts, (b) all provisions of the City HRL required independent construction to accomplish the law’s uniquely broad purposes, and (c) cases that had failed to respect these differences were being legislatively overruled. __
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, 872 N.Y.S.2d at 31, 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.
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 28 U.S.C. § 1367(c)(3).
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.
. Because this case comes to us on the grant of summary judgment against the Loefflers, we resolve all ambiguities and draw all permissible factual inferences in their favor. See Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009).
. On October 4, 2004, Kristy and Bobby withdrew their claims based on common law negligence and the Slate HRL. Loeffler, 2007 WL 805802, at *3 n. 3.
. The district court denied the Loefflers' claims for injunctive relief because they could not establish a “real and immediate threat,” and the Hospital’s policy amendments made it “almost certain that [Josephine] would receive adequate interpretive services [in the future].” Loeffler, 2007 WL 805802, at *9-10. (The Loefflers had withdrawn Robert's claims for injunctive relief when he died, after the First Amended Complaint was filed.) The district court noted that the Hospital provided interpretive services to Robert after November 7, 1995 and to Josephine on all but one occasion she visited the Hospital. On appeal, the Loefflers do not challenge the denial of injunctive relief.
. However, Kristy and Bobby withdrew their claims under the State HRL prior to the district court's order granting summary judgment. See Loeffler, 2007 WL 805802, at *3 n. 3.
. The Loefflers’ submissions regarding tire impact of the Restoration Act were deemed untimely in the district court. The Loefflers’ opposition to the Hospital’s motion for summary judgment, filed on October 4, 2005, did not reference the Restoration Act, which was enacted the day before. The Loefflers first raised the Restoration Act nine months later, in June 2006. Despite this “untimeliness,” the district court reached the merits of the argument, and "considered the submissions of both parties on the issue.” Lo&ffler, 2007
. We note, without expressing an opinion, that amicus The Opportunity Agenda argues that the City HRL does not require "intentional” discrimination in order to obtain monetary damages. Opportunity Agenda Br. at 16.
. Kristy’s and Bobby's common law negligence claims were voluntarily withdrawn. See Loeffier, 2007 WL 805802, at *3 n. 3.