Loeffler v. Staten Island University Hospital, No. 07-1404 (2d Cir. 2009)
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07-1404-cv Loeffler v. Staten Island University Hospital 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: March 19, 2009 Decided: October 6, 2009) Docket No. 07-1404 - - - - - - - - - - - - - - - - - - - -x 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.* - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WESLEY, Circuit Judge, and SAND, District Judge.** * The Clerk of the Court is directed to amend the official caption to conform to the listing of the parties above. ** The Honorable Leonard B. Sand, United States District Court for the Southern District of New York, sitting by designation. 1 Appeal from an order entered in the United States 2 District Court for the Eastern District of New York 3 (Johnson, J.) granting summary judgment to defendant 4 hospital. 5 provide interpreting services to a patient and his wife 6 (both deaf), so that their two children (of normal hearing) 7 had to act as interpreters for their parents, and allege 8 damages as a result. 9 raised a genuine issue of material fact as to whether the 10 hospital acted with deliberate indifference; (II) that the 11 children have associational standing under the 12 Rehabilitation Act; and (III) the children s claims under 13 the New York City Human Rights Law must be remanded for 14 reconsideration in light of the Local Civil Rights 15 Restoration Act of 2005, N.Y.C. Local Law No. 85 (2005). 16 The judgment of the district court is vacated. 17 Plaintiffs alleged that the hospital failed to We conclude: (I) that the parents have Chief Judge JACOBS dissents from the majority of the 18 panel as to Part II of this opinion; 19 forth the decision of the court as to Part II in a separate 20 opinion. Judge WESLEY sets 21 22 23 ALAN J. RICH, Brooklyn, NY, for Plaintiffs-Appellants. 2 1 2 3 4 5 6 7 8 9 10 11 12 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. DENNIS JACOBS, Chief Judge: Josephine Loeffler, ( Josephine ) acting individually 13 and as administratrix for the estate of her deceased husband 14 Robert A. Loeffler ( Robert ), and their two children Robert 15 C. Loeffler ( Bobby ) and Kristy Loeffler, ( Kristy ), 16 (collectively the Loefflers ) appeal an order entered in 17 the United States District Court for the Eastern District of 18 New York (Johnson, J.) granting summary judgment to Staten 19 Island University Hospital ( the Hospital ). 20 The Loefflers allege that during Robert s heart surgery 21 on October 27, 1995, and his subsequent stroke and 22 convalescence, the Hospital failed to provide a sign 23 language interpreter to Robert and his wife, who are both 24 deaf, in violation of numerous federal, state, and local 25 regulations, so that their two minor children -Kristy and 26 Bobby (of normal hearing)--were forced to interpret. 27 28 The Hospital does not contest that Robert and Josephine were deaf, that it was required by law to provide an 3 1 interpreter, and that it failed to do so. 2 court granted summary judgment dismissing the parents 3 claims on the ground that, under Bartlett v. N.Y. State Bd. 4 of Law Exam rs, 156 F.3d 321, 331 (2d Cir. 1998) , vacated on 5 other grounds and remanded, 527 U.S. 1031 (1999), the 6 Hospital cannot be held liable for monetary damages because 7 its failure was not a result of deliberate indifference. 8 The district court dismissed the claims of the Loeffler 9 children for lack of statutory standing. The district Loeffler v. Staten 10 Island Univ. Hosp., No. 95 CV 4549(SJ), 2007 WL 805802, at 11 *4-10 (E.D.N.Y. Feb. 27, 2007). 12 For the reasons that follow, we conclude that Robert 13 and Josephine have raised a genuine issue of material fact 14 as to the Hospital s deliberate indifference, and we vacate 15 the dismissal of all their claims. 16 dismissal of Kristy s and Bobby s federal claims (for the 17 reasons set forth in Judge Wesley s concurring opinion); and 18 we vacate the dismissal of Kristy s and Bobby s claims under 19 the New York City Human Rights Law, in light of the New York 20 City Local Civil Rights Restoration Act of 2005. 21 4 We also vacate the BACKGROUND3 1 2 Robert previously had heart surgery at the Hospital in 3 1991. 4 ( ASL ) interpreter; but though the Hospital s records 5 reflected the need for one, none was provided. 6 12 at the time) and Bobby (age 9) interpreted for their 7 father. 8 9 At that time, he requested an American Sign Language Kristy (age The present case concerns Robert s surgery at the Hospital in the fall of 1995. Robert was scheduled for a 10 right carotid endarterectomy on October 27, 1995. 11 days and weeks leading up to the surgery, the Loefflers made 12 numerous attempts to secure an interpreter from the 13 Hospital. 14 pre-admission testing (weeks prior to the surgery), he made 15 a request to the operating surgeon, Dr. Nedunchezian 16 Sithian, who just kind of laughed it off. . . . 17 other requests are alleged to have been made: by Bobby ten 18 days before the surgery, by Bobby or Kristy (age 17 at this 19 time) four days in advance, and by Josephine the day before. In the Bobby (age 13 at the time) claims that during 3 Numerous 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). 5 1 (She says the Hospital confirmed the request). 2 maintains that they have no records showing any such 3 requests. 4 5 The Hospital At the relevant time, the Hospital s policy was to provide sign language interpreters: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 [P]ursuant to the policy, hospital staff or patients were 25 to report requests for interpreting services to the Patient 26 Representative Department ( PRD ). 27 The PRD was run by its Director, Patricia Ferrara, and two 28 patient representatives, one of whom was Antoinette 29 Henderson. 30 Assistant Director of Nursing ( ADN ), who should determine 31 whether it is necessary to contact an interpreter on call 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) Appellee s Br. at 9. Requests made after hours were to go to the 6 1 or the New York Society for the Deaf. 2 A. Events of October 27, 1995 3 On the morning of the surgery, Friday, October 27, 4 1995, Robert and Bobby went to the PRD to request an 5 interpreter, and were told to go upstairs to the pre-op 6 room while an interpreter was sought. 7 Bobby asserts that he again requested an interpreter from 8 Dr. Sithian. 9 various family members visited the PRD at least four times Surgery began at noon. At the pre-op room, During the procedure, 10 to request an interpreter. 11 request for an interpreter for that hospital visit was made 12 until 2pm or 3pm. 13 The Hospital contends that no Appellee s Br. at 9-10. Josephine alleges that she and her sister asked 14 Antoinette Henderson of the PRD to have an interpreter 15 present when Robert got to the recovery room, and for a 16 TTY machine, which allows the deaf to communicate (by 17 phone or in person) with people with normal hearing, through 18 a relay service. 19 ever explicitly asking for a TTY, but recalls advising that 20 Robert could use one if he was in a private room. Henderson does not remember the Loefflers 21 After Josephine and her sister left the PRD, Henderson 22 began looking for an interpreter, but the Hospital s Speech 7 1 and Hearing Department ( SHD ) asked whether the Loefflers 2 needed an interpreter who signed ASL (the overwhelmingly 3 predominant sign language used in the United States) or 4 English Sign Language, and Henderson, who did not know, 5 unsuccessfully tried to reach family members to find out. 6 Shortly before 4pm, Josephine (with her mother) 7 returned to the PRD, and answered Henderson s inquiry as to 8 which kind of interpreter was required. 9 back in touch with SHD, and obtained four telephone numbers Henderson then got 10 for ASL interpreters. Two numbers were out of service, and 11 two were unanswered. (The Loefflers claim that the list was 12 outdated.) 13 interpreter would be available that night, and suggested 14 that they check the next morning if one was still needed. 15 Henderson and the Loefflers disagree as to whether any 16 objection was registered. 17 Henderson told Josephine and her mother that no After the surgery, Dr. Sithian brought Bobby into the 18 Recovery Room to interpret for his father, and told Bobby 19 that the surgery had gone well. 20 interpreter, explaining to Dr. Sithian that he did not feel 21 comfortable doing this and . . . [did not] understand some 22 of the terms. Bobby again asked about an Dr. Sithian assured Bobby that he was doing 8 1 just fine. 2 the back, and laughed it off like usual. 3 Bobby at his father s bedside in the Recovery Room. 4 According to Bobby, Dr. Sithian patted me on Dr. Sithian left Soon after the surgery, Robert suffered a stroke. He 5 grabbed his ankle and writhed in pain. 6 nearby nurse, who responded with indifference and opined 7 that that was how deaf people communicate. 8 disagreed, and she responded, what do you know, you re a 9 kid. 10 11 Bobby alerted a Bobby Bobby raised a disturbance for two to five minutes until Dr. Sithian came back. After removing Bobby from Robert s bedside and caring 12 for Robert, Dr. Sithian told Josephine (through Bobby) that 13 Robert had suffered a stroke and needed another operation. 14 According to Bobby, interpreting was amazingly 15 overwhelming and he had trouble because he did not know 16 what a stroke was. 17 Before Henderson left for the weekend, she advised a 18 charge nurse that, if Robert was not discharged the 19 following day (as expected), the charge nurse should call an 20 ASL interpreter. 21 numbers that had not been disconnected. 22 unaware of Robert s stroke; the charge nurse never tried Henderson gave the nurse the two telephone 9 Henderson was 1 calling any interpreter that afternoon or evening. 2 That night, Kristy stayed overnight in the Critical 3 Care Unit ( CCU ), in order to translate for her parents. 4 Kristy thus took over for Bobby, who testified that he was 5 traumatized and apparently felt responsible for failing to 6 help his father. 7 B. Remainder of Hospital Stay 8 The Loefflers maintain that, despite their constant 9 requests in the following days, the Hospital never obtained 10 an interpreter. 11 to Bobby, Hospital personnel would put off questions by 12 saying we re working on it or . . . I m not the person you 13 need to talk to. 14 in order to avoid making extra car trips to the Hospital, 15 but the request was denied. 16 1995, the family continued to rely on Kristy and Bobby, who 17 stayed out of school to remain on duty as translators. 18 The Loefflers claim that the Hospital gave Kristy a pager so 19 she could be on call. 20 suffered depression as a result of their father s stroke, 21 and the role they performed in relaying medical information. 22 Id. Loeffler, 2007 WL 805802, at *2. According Josephine also claims she requested a TTY From October 27 to November 7, Id. Both Bobby and Kristy claim to have 10 1 According to Henderson, she noticed Robert s name was 2 still on the Hospital census the week after the surgery, 3 made inquiry and was told by the charge nurse that someone 4 else was there to interpret, and that the Loefflers seemed 5 fine. 6 charge nurse was referring was Kristy, or someone else. 7 some point, Henderson spoke with her director, Nancy 8 Ferrara, about the Loefflers interpreter request. 9 It is unclear whether the interpreter to whom the At On November 6, 1995, the Loefflers filed this lawsuit 10 in the United States District Court for the Eastern District 11 of New York claiming that the Hospital s failure to provide 12 an interpreter violated the Americans with Disabilities Act 13 ( ADA ), Pub. L. No. 101-336, 104 Stat. 327 (1990), codified 14 as 42 U.S.C. §§ 12101-12213. 15 order to show cause compelling the Hospital to provide a 16 sign language interpreter. 17 Hospital stipulated to all requested relief, and thereafter 18 provided Robert with interpretive services for the duration 19 of his stay. 20 finally discharged from the Hospital at some point in 21 December 1995.) 22 The district court issued an On November 8, 1995, the Loeffler, 2007 WL 805802, at *3. (Robert was Within two months of the Loeffler incident, the 11 1 Hospital amended its sign language interpreter policy. 2 According to Ann Marie McDonough, the Hospital s Associate 3 Vice President for Rehabilitation Services, the staff is now 4 trained on how to identify patients who may need sign 5 language interpreting or other communication services. 6 Interpreters are now paid to be available during working 7 hours and available by pager after hours. 8 have visited the Hospital on multiple occasions since the 9 policy was amended, and received interpretive services on 10 all but one occasion. Id. The Loefflers Id. 11 C. Procedural history 12 On February 14, 1996, the Loefflers, along with JoAnne 13 Amore and Ann Rappoccio (relatives who joined in seeking the 14 interpreter), filed a First Amended Complaint that included 15 claims for injunctive relief under the ADA and the New York 16 State Patients Bill of Rights, 10 N.Y.C.R.R. § 405.7(a)(7); 17 and monetary damages under the Rehabilitation Act of 1973 18 (the RA ), Pub. L. No. 93-112, 87 Stat. 355, codified in 19 relevant part at 29 U.S.C. §§ 794-794a; the New York State 20 Human Rights Law ( State HRL ), N.Y. Exec. Law § 292; the 21 New York City Human Rights Law ( City HRL ), N.Y.C. Admin. 22 Code § 8-101 et seq.; and common law negligence. 12 The 1 2 Loefflers also sought punitive damages. After extensive discovery, the Hospital moved for 3 partial summary judgment. 4 the district court granted summary judgment to the Hospital 5 on all claims except for Robert s and Josephine s common law 6 negligence claims. 7 and Josephine s RA claims because, even though the Loefflers 8 were entitled to a sign language interpreter, there was 9 insufficient evidence for a reasonable jury to conclude that By order dated February 27, 2007, The district court dismissed Robert s 10 the Hospital acted with deliberate indifference. 11 2007 WL 805802, at *4-6. 12 the Hospital was aware that interpretive services might be 13 required by certain patients, had a system in place to 14 provide such services when necessary, and made numerous 15 good-faith, though unfortunately unsuccessful, efforts to 16 obtain an interpreter. 17 Josephine s State HRL and City HRL claims as coextensive 18 with their federal claim, the district court dismissed these 19 claims as well. 20 Loeffler, The district court determined that Id. at *5-6. Treating Robert s and Id. at *4, *6. As to Kristy s and Bobby s claims, the district court 21 ruled that the Hospital was not required to provide 22 communication between Robert and his children because they 13 1 were not his next of kin. 2 Bobby were not themselves denied any services to which they 3 were entitled, they had no standing to assert an 4 associational discrimination claim under the RA, or under 5 City HRL, which, again, the district court construed as 6 coextensive with federal law.4 7 Id. at *7. And since Kristy and Id. at *7-8. In addition, the court denied the Loefflers claims for 8 injunctive relief under the ADA and the New York State 9 Patients Bill of Rights,5 and declined to exercise 10 supplemental jurisdiction over Robert s and Josephine s 11 common law negligence claims. 12 13 Id. at *9, *11. The Loefflers timely appealed. They argue principally that: (1) they raised a genuine issue of material fact as to 4 On October 4, 2004, Kristy and Bobby withdrew their claims based on common law negligence and the State HRL. Loeffler, 2007 WL 805802, at *3 n.3. 5 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. 14 1 the Hospital s deliberate indifference; (2) Kristy and Bobby 2 have standing to assert associational discrimination claims 3 under the RA; (3) the State HRL and City HRL should not be 4 read co-extensively with their federal counterparts; and (4) 5 the district court improperly declined to exercise 6 supplemental jurisdiction over Robert s and Josephine s 7 common law negligence claims. 8 9 10 DISCUSSION We review a district court s decision to grant summary 11 judgment de novo, resolving all ambiguities and drawing all 12 permissible factual inferences in favor of the party against 13 whom summary judgment is sought. 14 255, 266 (2d Cir. 2009) (internal quotation marks, citation, 15 and brackets omitted); see also Fed. R. Civ. P. 56(c). 16 17 Wright v. Goord, 554 F.3d I Under § 504 of the RA, [n]o otherwise qualified 18 individual with a disability in the United States, . . . 19 shall, solely by reason of her or his disability, be 20 excluded from the participation in, be denied the benefits 21 of, or be subjected to discrimination under any program or 22 activity receiving Federal financial assistance. 15 29 U.S.C. 1 § 794(a). 2 hospital that receives federal funds shall establish a 3 procedure for effective communication with persons with 4 impaired hearing for the purpose of providing emergency 5 health care. 6 recipient hospital with fifteen or more employees is 7 required to provide appropriate auxiliary aids to persons 8 with impaired sensory, manual, or speaking skills, where 9 necessary to afford such persons an equal opportunity to Under the RA s implementing regulations, a 45 C.F.R. § 84.52(c). Additionally, a 10 benefit from the service in question. 11 Thus the RA does not ensure equal medical treatment, but 12 does require equal access to and equal participation in a 13 patient s own treatment. 14 287, 301 (1985)(the RA requires that an otherwise qualified 15 handicapped individual must be provided with meaningful 16 access to the benefit that the grantee offers )(emphasis 17 added); Naiman v. N.Y. Univ., No. 95 Civ. 6469(LMM), 1997 WL 18 249970, at *2 (S.D.N.Y. May 13, 1997) ( [Plaintiff] s claims 19 relate to his exclusion from participation in his medical 20 treatment, not the treatment itself. ); Aikins v. St. Helena 21 Hosp., 843 F. Supp. 1329, 1338 (N.D. Cal. 1994) (recognizing 22 that resulting adequate medical treatment is not a defense Id. § 84.52(d)(1). See Alexander v. Choate, 469 U.S. 16 1 to a claim that defendant failed to provide effective 2 communication under the RA). 3 To establish a prima facie violation of the RA, a 4 plaintiff must show that one is: (1) a handicapped person 5 as defined in the RA; (2) otherwise qualified to 6 participate in the offered activity or to enjoy its 7 benefits; (3) excluded from such participation or enjoyment 8 solely by reason of his or her handicap; and (4) being 9 denied participation in a program that receives federal 10 financial assistance. 11 F.2d 286, 289-90 (2d Cir. 1990). 12 See Rothschild v. Grottenthaler, 907 A plaintiff aggrieved by a violation of the RA may seek 13 all remedies available under Title VI of the Civil Rights 14 Act of 1964 (42 U.S.C. § 2000d et seq.), including monetary 15 damages. 16 damages are recoverable only upon a showing of an 17 intentional violation. 18 law is well settled that intentional violations of Title VI, 19 and thus the ADA and the Rehabilitation Act, can call for an 20 award of money damages. ). 21 22 See 29 U.S.C. § 794a(a)(2). However, monetary See Bartlett, 156 F.3d at 331 ( The The standard for intentional violations is deliberate indifference to the strong likelihood [of] a violation: 17 1 [i]n the context of the Rehabilitation Act, intentional 2 discrimination against the disabled does not require 3 personal animosity or ill will. 4 discrimination may be inferred when a policymaker acted 5 with at least deliberate indifference to the strong 6 likelihood that a violation of federally protected rights 7 will result from the implementation of the [challenged] 8 policy . . . [or] custom. 9 (internal citations omitted). 10 11 Rather, intentional Bartlett, 156 F.3d at 331 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 12 subject to the RA, or that Robert and Josephine Loeffler are 13 otherwise qualified individuals with a disability. 14 issue is whether the Hospital acted with deliberate 15 indifference in failing to secure an interpreter for the 16 Loefflers in the period from October 27 to November 7, 1995. 17 The We have not defined deliberate indifference in this 18 context. 19 U.S. 274, 290-91 (1998), the Supreme Court interpreted 20 deliberate indifference in the context of sexual 21 harassment claims under Title IX of the Education Amendments 22 of 1972, as amended, 20 U.S.C. §§ 1681 et seq. In Gebser v. Lago Vista Indep. School Dist., 524 18 Nothing 1 suggests that the standard for damages under the RA is the 2 same, but it is at least instructive that Gebser described 3 the requirements of deliberate indifference as follows: 4 5 6 7 8 9 10 11 12 Id. at 290. 13 deliberate indifference must be a deliberate choice . . . 14 rather than negligence or bureaucratic inaction. 15 v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007)(citing Pembaur 16 v. Cincinnati, 475 U.S. 469, 483-84 (1986)). 17 [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. In a separate context, we have also said that Reynolds Here, the district court concluded that no reasonable 18 jury could find that the Hospital acted with deliberate 19 indifference. 20 Hospital s policy at the time of Robert s admission 21 required improvement, [that] the Hospital s employees were 22 perhaps negligent in failing to obtain an interpreter for 23 the Loefflers, and that the Loefflers suffered through an 24 emotionally difficult ordeal that was exacerbated by the 25 Hospital s inadequate efforts to provide them with an 26 interpreter. The district court conceded that the Loeffler, 2007 WL 805802, at *6. 19 But the 1 district court conceived of the Hospital s failures as 2 bureaucratic inaction: the Hospital was aware that 3 interpretive services might be required by certain 4 patients, had a system in place to provide such services 5 when necessary, and its employees made numerous 6 good-faith, though unfortunately unsuccessful, efforts to 7 obtain an interpreter. 8 persuaded that Antoinette Henderson actually attempted to 9 obtain an interpreter on October 27, and undertook 10 additional efforts to locate an interpreter for [the 11 Loefflers] the following week. 12 concluded that the record in this case, even when viewed in 13 a light most favorable to Plaintiffs, cannot support a 14 finding of deliberate indifference. 15 We disagree. Id. at *5-6. The court was Id. at *6. Thus, the court Id. The record in this case can support a 16 finding of deliberate indifference. 17 not clear that the district court construed all the facts in 18 the light most favorable to the Loefflers. 19 the district court did not reference any of the Loefflers 20 alleged attempts to secure an interpreter prior to surgery, 21 or their numerous attempts to secure one afterward. 22 According to the Loefflers, they made at least four separate 20 To begin with, it is Most notably, 1 attempts to secure an interpreter in the days and weeks 2 leading up to October 27, all unheeded; and they made 3 continual requests in the period from October 27 (the day of 4 the surgery and the stroke) through November 7. 5 the district court did not expressly consider the Loefflers 6 several requests for a TTY device, also unheeded. 7 the district court mention Bobby s testimony that Dr. 8 Sithian laughed off Bobby s requests for an interpreter. 9 Further, Nor did Considering this evidence, we conclude that a 10 reasonable jury could conclude that persons at the Hospital 11 had actual knowledge of discrimination against the 12 Loefflers, had authority to correct the discrimination, and 13 failed to respond adequately. 14 general policy of providing interpreters, but Antoinette 15 Henderson was unaware of any practice of scheduling an 16 interpreter in advance, and her conduct may amount to 17 indifference in the face of knowledge of Robert s need for 18 an interpreter. 19 that Dr. Sithian--arguably a policymaker -dismissed Bobby s 20 demand for an interpreter, just kind of laughed it off, and 21 played it as a joke. 22 allow a jury to find deliberate indifference. The Hospital may have had a Perhaps most indicative, there is evidence This evidence, taken together, would 21 1 There are certainly facts in the record that might lead 2 a reasonable jury to conclude that the Hospital was not 3 deliberately indifferent. 4 the Hospital did have a policy in place to provide 5 interpreters, and Antoinette Henderson made some efforts on 6 the afternoon of October 27, 1995 to find an interpreter, 7 and the law does not require her to have succeeded. 8 testimony of the Loefflers and other family members, 9 together with the obvious shortcomings in the policy and the As the district court explained, But the 10 Hospital s conduct, as well as the alleged apathetic 11 response of Dr. Sithian, notwithstanding his authority to 12 correct the discrimination, could lead a reasonable jury to 13 conclude that the Hospital was deliberately indifferent; and 14 its indifference to the Loefflers rights may have been so 15 pervasive as to amount to a choice. 16 17 II The Loeffler children bring claims against the Hospital 18 for associational discrimination--that the Hospital s 19 failure to obtain an interpreter forced them to shoulder the 20 burden of providing interpreter services, miss school, and 21 suffer emotional distress as a result. 22 dismissed these claims on the ground that the Loeffler 22 The district court 1 2 children lacked statutory standing under the RA. For the reasons set forth in the concurring opinion of 3 Judge Wesley, a majority of this panel concludes that the 4 children do have standing to bring associational 5 discrimination claims under the RA, and therefore reverses 6 the district court s dismissal. 7 constitutes the opinion of the Court as to this issue. 8 dissent, and would affirm the district court s dismissal of 9 the children s associational discrimination claims. 10 The opinion of Judge Wesley I My reasons are set forth in a separate, dissenting opinion. 11 III 12 The Loefflers brought additional claims against the 13 Hospital under the State HRL and City HRL. Construing these 14 statutes to be co-extensive with their federal counterparts, 15 see, e.g., Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 16 708, 714-15 & n.6 (2d Cir. 1996); Stephens v. Shuttle 17 Assocs., L.L.C., 547 F. Supp. 2d 269, 278 (S.D.N.Y. 2008), 18 the district court dismissed each of these claims for the 19 same reasons it dismissed the equivalent federal claims.6 6 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. 23 1 If the district court were correct, it would be enough 2 to vacate the dismissal of the Loefflers federal claims. 3 And, indeed, we vacate the dismissal of Robert s and 4 Josephine s State HRL claims for this reason. 5 vacate the dismissal of the Loeffler s City HRL claims on 6 the separate ground that the City HRL can no longer be read 7 as co-extensive with federal law. But, we 8 Under the City HRL, places of public accommodation are 9 required to make reasonable accommodations for persons with 10 disabilities, and may not refuse, withhold from or deny to 11 such [disabled] person any of the accommodations, 12 advantages, facilities or privileges thereof. 13 Admin. Code § 8-107(4)(a). 14 allows associational discrimination claims: The 15 provisions of this section set forth as unlawful 16 discriminatory practices shall be construed to prohibit such 17 discrimination against a person because of the actual or 18 perceived . . . disability . . . of a person with whom such 19 person has a known relationship or association. 20 Admin. Code § 8-107(20). 21 22 N.Y.C. The City HRL also explicitly N.Y.C. City HRL claims have typically been treated as coextensive with state and federal counterparts. 24 See, e.g., 1 Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir. 2006) 2 ( The standards for liability under these [state and city] 3 laws are the same as those under the equivalent federal 4 antidiscrimination laws. ). 5 Council has rejected such equivalence. 6 Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 7 (2005) (the Restoration Act ) amended the City HRL in a 8 variety of ways, including by confirming the legislative 9 intent to abolish parallelism between the City HRL and 10 However, the New York City The Local Civil federal and state anti-discrimination law: 11 12 13 14 15 16 17 18 19 20 21 Restoration Act § 7. 22 Interpretations of New York state or federal statutes with 23 similar wording may be used to aid in interpretation of New 24 York City Human Rights Law, viewing similarly worded 25 provisions of federal and state civil rights laws as a floor 26 below which the City s Human Rights law cannot fall. 27 1 (emphasis added). 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. There is now a one-way ratchet: 25 Id. § 1 In January 2009, the Appellate Division, First 2 Department confirmed that claims under the City HRL must be 3 reviewed independently from and more liberally than their 4 federal and state counterparts: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 66-69, 872 37 N.Y.S.2d 27, 31 (1st Dep t 2009). 38 of New York, 884 N.Y.S.2d 369, 377 n.10 (1st Dep t July 28, 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. 26 See also Phillips v. City 1 2 2009). Because claims under the City HRL must be given an 3 independent liberal construction, Williams, 61 A.D.3d at 4 66, 872 N.Y.S.2d at 31, and because the City HRL permits 5 associational discrimination claims, we vacate the dismissal 6 of the Loefflers City HRL claims and remand to the district 7 court for further proceedings. 7 8 court to interpret any specific, applicable provisions in 9 the first instance. 8 10 11 We leave it to the district IV Finally, the district court declined to exercise 7 The Loefflers submissions regarding the 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. Loeffler, 2007 WL 805802, at *4 n.5. Because the district court reached the merits, we do the same. Moreover, since the Restoration Act clarified the meaning of the preexisting protections under the City HRL, New York courts have applied the Restoration Act retroactively. See, e.g., Sorrenti v. City of New York, 17 Misc.3d 1102(A), at *4, 851 N.Y.S.2d 61 (Table) (Sup. Ct. N.Y. County Aug. 16, 2007). 8 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. 27 1 supplemental jurisdiction over Robert s and Josephine s 2 common law negligence claims because all federal claims had 3 been dismissed. 4 vacate the dismissal of Robert s and Josephine s federal 5 claims, we also vacate that part of the order declining to 6 exercise supplemental jurisdiction over Robert s and 7 Josephine s common law negligence claims. 8 Grandon v. Merrill Lynch & Co., Inc., 147 F.3d 184, 195 (2d 9 Cir. 1998). 10 See 28 U.S.C. § 1367(c)(3).9 Because we See, e.g., As the Loefflers do not challenge the dismissal of 11 their claims for an injunction under the RA, the ADA, and 12 the New York State Patients Bill of Rights, any such 13 arguments have been waived. 14 F.3d 114, 117 (2d Cir. 1998) ( Issues not sufficiently 15 argued in the briefs are considered waived and normally will 16 not be addressed on appeal. ). See Norton v. Sam s Club, 145 17 18 19 20 CONCLUSION For the foregoing reasons and the reasons set forth in Judge Wesley s opinion, the district court s order of 9 Kristy s and Bobby s common law negligence claims were voluntarily withdrawn. See Loeffler, 2007 WL 805802, at *3 n.3. 28 1 February 27, 2007, is vacated and remanded in part for 2 further proceedings consistent with this opinion. 29 1 2 Richard Wesley, Circuit Judge, concurring with Judge Sand. I agree with my colleagues that there is a genuine 3 issue of material fact as to whether Staten Island 4 University Hospital (the Hospital ) acted with deliberate 5 indifference towards Robert and Josephine Loeffler in 6 failing to provide federally required sign language 7 interpretation for the Loefflers while Robert was under the 8 Hospital s care. 9 I also agree with my colleagues reading of New York City s 10 Human Rights Law as it applies to Bobby and Kristy Loeffler 11 and therefore concur as to part III. 12 Consequently, I concur in parts I and IV. I write to express the view of two members of the panel 13 with regard to the children s claims under the 14 Rehabilitation Act of 1973 (the RA ) 1 15 and Kristy by virtue of being compelled to provide sign 16 language interpretation, forced truancy from school, and 17 involuntary exposure to their father s suffering are 18 person[s] aggrieved within the meaning of the RA and 19 therefore have statutory standing. 20 In our view, Bobby As this Court and others have recognized, to gain entry 1 Pub. L. No. 93-112, 87 Stat. 355, codified in relevant part at 29 U.S.C. §§ 794-794a. Page 1 of 14 1 to the courts, non-disabled parties bringing associational 2 discrimination claims need only prove an independent injury 3 causally related to the denial of federally required 4 services to the disabled persons with whom the non-disabled 5 plaintiffs are associated. 6 claims because they were compelled to provide sign language 7 interpretation for the Hospital and were consequently taken 8 out of school and exposed to their father s suffering 9 injuries independent of their parents injuries that were 10 causally related to the Hospital s failure to provide sign 11 language interpretation. 12 restrictive reading of the RA, Bobby and Kristy have 13 standing to bring suit because they were denied the benefits 14 of adequate sign language interpretation services the 15 Hospital was required to provide. 16 Bobby and Kristy make such Furthermore, even under a more Under the RA, [n]o otherwise qualified individual with 17 a disability in the United States . . . shall, solely by 18 reason of her or his disability, be excluded from the 19 participation in, be denied the benefits of, or be subjected 20 to discrimination under any program or activity receiving 21 Federal financial assistance. . . . Page 2 of 14 29 U.S.C. § 794(a). 1 Federal regulation requires that the Hospital, see 28 C.F.R. 2 § 36.104(6), furnish appropriate auxiliary aids and 3 services where necessary to ensure effective communication 4 with individuals with disabilities, 28 C.F.R. § 36.303(c); 5 see also 45 C.F.R. § 84.52(c)-(d) (requiring that the 6 Hospital establish a procedure for effective communication 7 with persons with impaired hearing for the purpose of 8 providing emergency health care ). 9 [A]ny person aggrieved by any act or failure to act by 10 any recipient of Federal assistance under the RA may bring 11 suit. 12 disabled. 13 enforcement provisions of the [RA] evinces a congressional 14 intention to define standing to bring a private action under 15 [the RA] . . . as broadly as is permitted by Article III of 16 the Constitution. 17 White Plains, 117 F.3d 37, 47 (internal quotation marks 18 omitted). 19 29 U.S.C. § 794a(a)(2). This includes the non- In fact, the use of such broad language in the Innovative Health Sys., Inc. v. City of The standing provision of the RA, § 794a(a)(2), is 20 distinct from the provision prohibiting discriminatory 21 conduct on the part of the recipient of federal assistance, Page 3 of 14 1 § 794(a). Therefore, the type of injury a person 2 aggrieved suffers need not be exclu[sion] from the 3 participation in, . . . deni[al of] the benefits of, or . . 4 . subject[ion] to discrimination under any program or 5 activity receiving Federal financial assistance. 6 § 794(a). 7 standing provision of the RA as broadly as possible under 8 the Constitution, irrespective of § 794(a). 9 Health Sys., 117 F.3d at 47. 29 U.S.C. As we made clear in Innovative, we interpret the See Innovative Cf. Trafficante v. Metro. Life 10 Ins. Co., 409 U.S. 205, 209 (1972) (interpreting the Civil 11 Rights Act of 1964, 42 U.S.C. § 2000e-5(a)); Clearing House 12 Ass n v. Cuomo, 510 F.3d 105, 125 (2d Cir. 2007), rev d on 13 other grounds, Cuomo v. Clearing House Ass n, L.L.C., 129 S. 14 Ct. 2710 (2009) (interpreting the Fair Housing Act). 15 This does not relieve the person aggrieved of 16 establishing an injury causally related to, but separate and 17 distinct from, a disabled person s injury under the statute. 18 Indeed, a failure to establish an injury and causation would 19 create a constitutional standing issue, which, as we said in 20 Innovative, is coterminous with statutory standing here. 21 Innovative Health Sys., 117 F.3d at 47. Page 4 of 14 In our view, Bobby 1 and Kristy need only establish that each suffered an injury 2 independent from their parents that was causally related to 3 the Hospital s failure to provide services to their parents. 4 Bobby and Kristy at least for standing purposes 5 have established three such injuries. First, Bobby and 6 Kristy were forced to provide sign language interpretation. 7 They were required to fill the gap left by the Hospital s 8 failure to honor its obligations under the statute. 9 because they had to provide interpretation and be on-call Second, 10 via pager twenty-four hours a day they missed school. 11 Third, because they were required to attend to their father 12 in order to provide this service, they were needlessly and 13 involuntarily exposed to their father s condition and thus 14 unnecessarily placed at risk for emotional trauma because of 15 their young age. 2 16 thirteen-year-old Bobby, who was forced to witness his 17 father suffer a stroke and was then required to relay the 18 doctor s assessment of his father s condition to his mother. 19 This is especially true for then- Bobby s and Kristy s claims are distinct from the 2 Bobby testified that he attempted suicide and according to a psychiatric evaluation suffered from depression linked to his experience as Robert s interpreter during the 1995 surgery. Page 5 of 14 1 associational discrimination claims rejected by other 2 courts. 3 Pleas, Domestic Relations Div., the court found that the 4 plaintiff s alleged injury being deprived . . . of her 5 father s companionship for a period of five years 6 not an injury under Title II of the Americans with 7 Disabilities Act 3 (the ADA ) because she ha[d] not been 8 denied access to or participation in any of the public 9 services covered by Title II [of the ADA]. 4 In Popovich v. Cuyahoga County Court of Common was 150 F. App x 10 424, 425, 427 (6th Cir. 2005). Bobby and Kristy do not 11 claim that the Hospital s failure to provide a sign language 12 interpreter injured them by preventing their father from 13 coming home earlier or from providing care and support. 14 Instead, they claim that they were forced to provide a 15 service as a result of the Hospital s failure to honor its 3 Pub. L. No. 101-336, 104 Stat. 327 (1990), codified as 42 U.S.C. §§ 12101 to 12213. 4 Title II of the ADA confers [t]he remedies, procedures, and rights set forth in [29 U.S.C. §] 794a . . . to any person alleging discrimination on the basis of disability under 42 U.S.C. § 12132, which contains language nearly identical to § 794. 42 U.S.C. § 12133. For the sake of argument, I will assume that § 12133 confers the same associational discrimination rights to non-disabled litigants as § 794a(a)(2). Page 6 of 14 1 2 federally imposed obligation. In Simenson v. Hoffman, the court held that the parents 3 lacked standing to bring a claim under the ADA for 4 associational discrimination, allegedly based on the 5 discrimination by a doctor of the parents disabled child, 6 because the parents were not at the medical center for any 7 purpose other than to seek treatment for their child. 8 95 C 1401, 1995 U.S. Dist. LEXIS 15777, at *16 (N.D. Ill. 9 Oct. 24, 1995). No. In this case, however, Bobby and Kristy 10 were at the Hospital for the additional purpose of attending 11 their father and mother in order to provide services that 12 the Hospital was required to provide. 13 failure to provide sign language interpreters the alleged 14 statutory violation at issue Bobby likely would not have 15 been present to witness his father have a stroke in the 16 post-operating room, neither Bobby nor Kristy would have 17 been responsible for translating medical terms to their 18 mother that were beyond their comprehension, and neither 19 Bobby nor Kristy would have been compelled to miss school in 20 order to provide sign language interpretation. 21 Kristy had not known sign language but instead had paid for Page 7 of 14 Absent the Hospital s If Bobby and 1 an interpreter to resolve the problem created by the 2 Hospital s failure to meet their parents needs would there 3 be any question they would have a claim? 4 when two children are pressed into service by the Hospital? 5 What is different In Innovative, we cited favorably the preamble to 28 6 C.F.R. § 35 which acknowledges that the regulation was 7 intended to ensure that entities such as health care 8 providers, employees of social service agencies, and others 9 who provide professional services to persons with 10 disabilities are not subjected to discrimination because of 11 their professional association with persons with 12 disabilities. 13 35, app. A at 470) (emphasis omitted). 14 these regulations and their organic statutes are meant to 15 protect professionals and healthcare entities from being 16 discriminated against i.e., injured by virtue of their 17 association with disabled persons. 18 necessarily be limited to an inability to provide services 19 to disabled persons. 20 Charlotte, N.C., 904 F. Supp. 482 (W.D.N.C. 1995), 21 illustrates this. 117 F.3d at 47 n.14 (quoting 28 C.F.R. pt. We recognized that This injury need not We believe United States v. City of In that case, the court held that a Page 8 of 14 1 contractor had standing to sue under the RA for the City of 2 Charlotte s refusal to permit the contractor to construct 3 housing for people suffering from AIDS. 4 court determined that the denial of the permit sufficiently 5 injured the contractor by placing in jeopardy the 6 contractor s ability to secure federal funding and caused 7 [the contractor] to incur additional construction costs and 8 expenses. 9 Id. at 486. The Id. Bobby and Kristy have suffered injuries even more 10 direct than those of the contractor. 11 illogical that we would protect professions and healthcare 12 entities from injuries due to their association with 13 disabled persons but deny that protection to non- 14 professional family members of disabled folks who are 15 discriminated against because of a denial of services. 5 5 Indeed, it seems Some courts have gone even farther in finding an injury sufficient to bring an associational discrimination claim. In Spector v. Norwegian Cruise Line Ltd., the court held that prospective non-disabled passengers of a cruise ship who intended to travel and room with disabled persons had standing to bring an associational discrimination claim under the ADA where the prospective non-disabled passengers were injured by forc[ing] them to pay more to enjoy the privilege of staying in the same rooms with their [disabled] traveling companions. No. Civ.A. H-00-2649, 2002 WL 34100212, at *15 (S.D. Tex. Sept. 9, 2002), rev d and Page 9 of 14 1 In this case, two children were required to provide a 2 service to their parents that federal law says is guaranteed 3 to any hearing impaired patient in a hospital. 4 had to step in and do what the Hospital was unable or 5 refused to do at least until ordered to do so by a federal 6 district court. 7 Two children But even if Bobby and Kristy Loeffler were required 8 under the RA to prove they were excluded from participation 9 in, denied the benefit of, or discriminated against under a 10 federally assisted program, they still have standing. As 11 stated above, federal regulation requires that the Hospital, remanded on other grounds, 545 U.S. 119 (2005). In Niece v. Fitzner, the court held that the plaintiff, a non-deaf prisoner, had stated a claim upon which relief could be granted where he alleged associational discrimination by the prison for not providing services for him to speak with his deaf fiancée. 922 F. Supp. 1208, 1216 (E.D. Mich. 1996). In Johanson v. Huizenga Holdings, Inc., the court, without finding an independent injury, held that the father of the disabled minor does have standing to sue under the ADA by virtue of his relationship with his son, an individual with a known disability. 963 F. Supp. 1175, 1176 (S.D. Fla. 1997). We need not go as far as these cases because Bobby and Kristy can demonstrate injuries more independent than those of the plaintiffs in Niece and Johanson and also more particular, acute, and overt than those in Spector. They can point to particular services that they were forced to provide as a direct result of the Hospital s dereliction. Page 10 of 14 1 see 28 C.F.R. § 36.104(6), furnish appropriate auxiliary 2 aids and services where necessary to ensure effective 3 communication with individuals with disabilities, 28 C.F.R. 4 § 36.303(c). 5 interpreters and consequently relied on Bobby and Kristy 6 thirteen and seventeen years old at the time, respectively 7 to translate between the Hospital staff and Robert and 8 Josephine. 9 children to translate complicated medical terms that the The Hospital failed to provide sign language As Bobby testified, the Hospital relied on the 10 children were not capable of understanding. 11 the children were by their own admission incompetent to 12 provide adequate sign language interpretation to translate 13 these terms between the parties or for themselves. 14 result, they and their mother were denied the service of 15 adequate sign language interpretation to understand their 16 father s medical complications and the procedures he 17 underwent. 6 18 In other words, As a There are, of course, issues of fact in this case. 6 If Bobby and Kristy had to prove that they were denied services that should have been provided to a qualified disabled person under the RA, that view would effectively eviscerate any right to an associational discrimination claim under the RA and overturn Innovative. Page 11 of 14 1 There is dispute as to whether the children were forced to 2 translate for the hospital, for example, or whether the 3 requests for interpreters were properly made. 4 sending the case to trial to resolve such disputes. 5 these issues go to the extent of the injury suffered and the 6 calculation of damages, not whether or not the statute 7 itself affords them the right to claim that injury. 8 in this case will center on whether rights were violated, 9 not if those rights exist. We are But A trial Once we have decided that they 10 fall within the purview of this statute, it is then up to 11 the jury to decide if they believe the children s story. 12 Finally, a word or two is in order with regard to the 13 concerns expressed by our dissenting colleague. The dissent 14 expresses the view that our determination that Bobby and 15 Kristy are person[s] aggrieved within the meaning of the 16 RA will open the courts to all manner of claims by friends 17 and relatives of disabled persons provid[ing] additional or 18 complementary services to patients such as [a] friend 19 lift[ing] a wheelchair up a few stairs when there is no 20 ramp, a relative prepar[ing] a gluten-free meal that a 21 hospital lacks resources to provide, a sister stay[ing] up Page 12 of 14 1 all night to cheer the patient and translate from Dutch as 2 needed, and suffer[ing] the trauma of a flatlining. 3 (emphasis added). 4 By grouping Bobby s and Kristy s claims with these 5 examples the dissent seriously misrepresents the children s 6 claims. 7 may have some simplistic appeal it has no real correlation 8 to the injuries presented here. 9 to provide a service to their parents that federal law says 10 is guaranteed to any hearing impaired patient in a hospital. 11 Two children did what the Hospital was unable or refused to 12 do at least until ordered to do so by a federal district 13 court. Two children were forced to explain to their hearing 14 impaired mother why their father was near death in terms 15 they did not or could not understand. 16 brother thinks that what Bobby and Kristy were forced to do 17 is a complementary service his phrase not ours then 18 our colleague is sadly mistaken. 19 materially different in kind. 20 ending liability for the Hospital, it is what Congress 21 required a link to the hearing world. While the dissent s hypothetical list of horrors Two children were required If our dissenting We see this case as It is not the dawn of never- Page 13 of 14 1 Accordingly, we reverse as to Bobby s and Kristy s 2 claims and remand them to the district court for further 3 proceedings in accordance with this decision. Page 14 of 14 1 Dennis Jacobs, Chief Judge, dissenting in part: 2 3 I respectfully dissent as to the statutory standing of 4 Kristy and Bobby Loeffler to bring associational 5 discrimination claims against the Hospital under the 6 Rehabilitation Act of 1973 ( RA ). 7 The RA provides that [n]o otherwise qualified 8 individual with a disability . . . 9 of her or his disability, [i] be excluded from the shall, solely by reason 10 participation in, [ii] be denied the benefits of, or [iii] 11 be subjected to discrimination under any program or activity 12 receiving Federal financial assistance. 13 (emphases added). 14 of action: The remedies, procedures, and rights set forth 15 in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d 16 et seq.) . . . shall be available to any person aggrieved by 17 any act or failure to act by any recipient of Federal 18 assistance or Federal provider of such assistance under 19 section 794 of this title. 20 29 U.S.C. § 794(a) The next section provides a private right 29 U.S.C. § 794a(a)(2). The majority reads the phrase any person aggrieved in 21 § 794a(a)(2) to mean that an RA associational claim may be 22 pled even by someone who is not herself excluded from [] 1 1 participation in or denied the benefits of anything that 2 the RA guarantees. 1 3 Points, the majority is expanding the RA in a way that is 4 unsupported by precedent (I), text (II), logic (III), and 5 prudence (IV). As I undertake to demonstrate in four 6 I 7 Federal courts have long recognized that the phrase 8 any person aggrieved supports claims for associational 9 discrimination under the RA. In the first such case, a 10 woman (not disabled) sued an airline that had refused to 11 board her disabled husband, with whom she was traveling. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 In passing, the majority suggests that the children themselves may have been denied a service guaranteed under the RA because they were denied a translator. But this is surely odd, because, as persons with normal hearing, they needed no translator--which is of course the whole premise of their claim. The majority opinion tweaks the argument by saying they were denied adequate sign language interpretation because they had to translate complicated medical terms that they did not understand. (emphasis added). But that deprivation comes down to a single medical term ( stroke ). See infra at n.7. Certainly the children cannot contend that they needed a superior translator at bedside to explain their father s condition since [i] with normal hearing, they did not need ASL to communicate with the doctor, [ii] if they did not understand stroke when it was spoken, they would not have understood it when it was translated in ASL by someone who did, and [iii] their main point is that they would not have been with their father in the hospital if any other translator had been present. 2 1 Nodleman v. Aero Mexico, 528 F. Supp. 475, 479-80 (C.D. Cal. 2 1981). 3 claim because the RA s use of the phrase any person 4 aggrieved . . . evinces a congressional intention to define 5 standing to bring a private action under Section 504 as 6 broadly as is permitted by Article III of the Constitution. 7 Id. at 485. 8 The court declined to dismiss her associational We recognized standing to assert a claim for 9 associational discrimination under the RA in Innovative 10 Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 11 46 48 (2d Cir. 1997). 12 challenged the denial of a zoning permit, alleging that the 13 city was discriminating against the center s patients. 14 at 47. 15 language of the RA s enforcement provision. 16 An addiction rehabilitation center Id. We relied particularly on Nodleman, and the broad Id. The scope of the term any person aggrieved is not 17 apparent from the text of the RA itself, but it cannot be 18 altogether limitless. 19 Innovative Health Sys., the plaintiffs themselves were 20 excluded from participation in a program, or were denied 21 services, or were discriminated against (albeit on the basis 22 of their association with disabled persons). Crucially, in both Nodleman and 3 The plaintiffs 1 in these cases were not otherwise qualified individual[s] 2 with a disability[,] but the wife (excluded from the plane ) 3 and the rehabilitation center (denied a permit) were 4 aggrieved in the same manner and for the same reasons as an 5 otherwise qualified individual with a disability under § 6 794(a): they were excluded from the participation in, [] 7 denied the benefits of, or [] subjected to discrimination 8 under any program or activity receiving Federal financial 9 assistance. 29 U.S.C. § 794(a). 10 The decisive distinction in our case is that the 11 Loeffler children were never excluded from participation, 12 denied services, or subjected to discrimination. 13 assisted their parents in coping with an alleged violation 14 of the RA without themselves being denied services. 15 may well have been injured, forced to interpret for their 16 parents, and made to miss school (among other injuries), but 17 the RA does not confer standing on account of these types of 18 injuries. 19 They They A survey of cases under the ADA shows that courts have 20 generally adhered to this distinction (implicitly or 21 explicitly), and conferred standing as a person aggrieved 22 only in cases where a plaintiff has actually been excluded, 4 1 denied, or subjected to discrimination in the receipt of 2 services. 3 Court of Common Pleas, Domestic Relations Div., 150 F. App x 4 424, 427 (6th Cir. 2005)(per curiam), a daughter who was the 5 subject of custody proceedings (brought by her disabled 6 father) sued an Ohio court, alleging that the court s 7 failure to accommodate her father s disability caused delays 8 that deprived her of her father s companionship for five 9 years. For instance, in Popovich v. Cuyahoga County The Sixth Circuit rejected her claim: Unlike the 10 treatment centers in Innovative Health Sys. and MX Group, 11 both of which were denied permits to operate, Lauren 12 Popovich has not been denied access to or participation in 13 any of the public services covered by Title II. 14 427. 15 services. 16 Id. at She may have been aggrieved, but she was not denied Similarly, in Simenson v. Hoffman, No. 95 C 1401, 1995 17 WL 631804, at *2 (N.D. Ill. Oct. 24, 1995), a doctor refused 18 to treat a disabled child, and screamed at the parents to 19 get out of his office. 20 parents claim for associational discrimination on the 21 ground that the parents were not denied services: denial of 22 admission to a movie theater or a hotel constitutes a The district court dismissed the 5 1 separate injury because the companion is denied the use of 2 the service or facility. 3 medical center for any purpose other than to seek treatment 4 for [the child]. 5 parents, was merely the final act in the decision to deny 6 [the child] medical treatment. 7 also Glass v. Hillsboro School Dist. 1J, 142 F. Supp. 2d 8 1286, 1292 (D. Or. 2001) (noting that to prevail on a theory 9 of associational discrimination, the plaintiffs must allege The [parents] were not at the [The child s] ejection, and that of his 1995 WL 631804, at *6. See 10 and prove that they . . . were discriminated against in 11 obtaining those services solely because they were associated 12 with disabled individuals ) (emphasis added). 13 II 14 The plain text of the RA-- any person aggrieved (§ 15 794a(a)(2))--is expansive, and the majority s reading might 16 be defensible but for a subsequent indication of 17 congressional intent. 18 We know that Congress meant to incorporate certain 19 standards and judicial interpretations of the RA into the 20 later-adopted Americans with Disabilities Act of 1990, 21 ( ADA ), 42 U.S.C. §§ 12101-12213. 22 12201(a); H.R. Rep. No. 101-485, at 84 (1990), as reprinted 6 See, e.g., 42 U.S.C. § 1 in 1990 U.S.C.C.A.N. 267, 367; Collings v. Longview Fibre 2 Co., 63 F.3d 828, 832 n.3 (9th Cir. 1995) (noting that 3 Congress intended judicial interpretation of the 4 Rehabilitation Act be incorporated by reference when 5 interpreting the ADA ); 6 Dep t of Pub. Welfare, 62 F.3d 92, 95 (3d Cir. 1995) 7 ( Whether suit is filed under the Rehabilitation Act or 8 under the Disabilities Act, the substantive standards for 9 determining liability are the same. ). 2 McDonald v. Commonwealth of Pa., When Congress 10 enacted the ADA, it thus clarified the standing requirement 11 that associated persons be themselves actually excluded or 12 denied, and thereby unambiguously limited the breadth of 13 any person aggrieved. 14 For example, Title I of the ADA (concerning employment 15 discrimination against qualified individuals with a 16 disability), prohibits employers from [e]xcluding or 17 otherwise denying equal jobs or benefits to a qualified 18 individual because of the known disability of an individual 1 2 3 4 5 6 7 2 After passage of the ADA, the RA was amended in part to codify the congruence. See, e.g., 29 U.S.C. § 794(d) ( The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990. ). 7 1 with whom the qualified individual is known to have a 2 relationship or association. 3 (emphases added). 4 she herself suffers an actual adverse employment action. 5 See generally Den Hartog v. Wasatch Acad., 129 F.3d 1076, 6 1085 (10th Cir. 1997) (plaintiff alleging that he was fired 7 due to son s disability must allege that he himself was 8 subjected to adverse employment action ); Larimer v. Int l 9 Bus. Machines Corp., 370 F.3d 698, 700 02 (7th Cir. 2004) 10 42 U.S.C. § 12112(b)(4) An associated person has a claim only if (same). 11 Title II of the ADA (concerning public entities and 12 public transportation) contains no express associational 13 discrimination provision, 3 but its implementing regulations 14 provide: A public entity shall not exclude or otherwise 15 deny equal services, programs, or activities to an 16 individual or entity because of the known disability of an 1 2 3 4 5 6 7 8 9 10 11 3 We nevertheless held in Innovative Health Sys. that Title II supports claims for associational discrimination. See 117 F.3d at 47 ( According to the [defendant], because Title II does not contain similar language, Congress intended to prevent standing based on association under this section. Although courts generally should be reluctant to conclude that the omission of language in one part of a statute that is included in another is unintentional, . . . there is extensive support in this instance to read the specific examples of discrimination from the other two titles into Title II. ). 8 1 individual with whom the individual or entity is known to 2 have a relationship or association. 3 (emphases added). 4 28 C.F.R. § 35.130(g) 4 Title III of the ADA (concerning public accommodation) 5 prohibits discriminatory conduct against associated persons 6 thus: It shall be discriminatory to exclude or otherwise 7 deny equal goods, services, facilities, privileges, 8 advantages, accommodations, or other opportunities to an 9 individual or entity because of the known disability of an 10 individual with whom the individual or entity is known to 11 have a relationship or association. 12 12182(b)(1)(E) (emphases added). 13 42 U.S.C. § Each of these ADA provisions imposes an unambiguous 14 statutory standing requirement that an associated person be 15 actually excluded or denied due to their association. 16 17 1 2 3 4 5 6 7 8 The evidence suggests that Congress interpreted the RA the same way. Under the ADA s general rule of construction, 4 As noted in Innovative Health Sys., the preamble to 28 C.F.R. § 35.130(g) explains: This provision was intended to ensure that entities such as health care providers, employees of social service agencies, and others who provide professional services to persons with disabilities are not subjected to discrimination because of their professional association with persons with disabilities. 28 C.F.R. pt. 35, app. A at 470 (emphasis added). 9 1 nothing in this chapter shall be construed to apply a 2 lesser standard than the standards applied under title V of 3 the Rehabilitation Act of 1973. 4 standard is construed broadly, as it is evidently used and 5 intended, it subsumes statutory standing. 6 ineluctably that Congress understood its ADA wording to be 7 congruent with the proper construction of its earlier 8 language in the RA. 9 42 U.S.C. § 12201(a). 5 If It then follows Reading the RA and ADA together, as Congress clearly 10 intended us to do, associational claims require an exclusion 11 or denial of services. 12 13 III The majority s wide interpretation of any person 14 aggrieved has no evident limiting principle, as can be 15 illustrated in t he hospital context. 16 of patients routinely provide additional or complementary 17 services to patients. 18 the RA, everybody and his mother (literally) will be able to 19 submit a bill for services and injuries. 1 2 3 4 5 Relatives and friends Once a breach of duty is found under 5 A friend lifts a The legislative history of § 12201 explains: This section explains the relationship between section 504 of the Rehabilitation Act of 1973 and [the Americans with Disabilities] Act. H.R. Rep. No. 101-485, at 44 (1990), as reprinted in 1990 U.S.C.C.A.N. 267, 288. 10 1 wheelchair up a few stairs when there is no ramp, and is 2 injured; a relative prepares a gluten-free meal that a 3 hospital lacks resources to provide, and thereby incurs 4 expense, or gets burned on the stove; a sister stays up all 5 night to cheer the patient and translate from Dutch as 6 needed, and suffers the trauma of a flatlining. 7 If the RA supported all these claims flowing from an 8 initial act of discrimination, a hospital s liability would 9 never end. And the hospital might have to pay twice or many 10 times over for each service it failed to afford.6 11 were the law, the RA would in that respect grant more 12 extensive remedies to associated persons than to persons 13 with disabilities themselves: only the disabled would 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 If this 6 The central purpose of the anti-discrimination statutes is to deter discrimination before it occurs--not necessarily to provide full and adequate compensation for harms that are at best tangentially related to the deprivation suffered by a person with disabilities. The preamble to the Americans with Disabilities Act states: It is the purpose of this chapter[] to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1). If the goal were to yield compensation, the recovery of money damages would not be conditioned on proof of intentional discrimination. See Bartlett v. N.Y. State Bd. of Law Exam rs, 156 F.3d 321, 331 (2d Cir. 1998) (under the RA and ADA, monetary damages are recoverable only upon a showing of an intentional violation), vacated on other grounds and remanded, 527 U.S. 1031 (1999). 11 1 actually have to be excluded, denied, or subjected to 2 discrimination in order to recover damages. 3 4 IV Claims of the kind that the majority opinion recognizes 5 create intractable administrative problems for judges and 6 juries. 7 because he was drafted into service as an interpreter, 7 that 8 he was forced to miss school to be present at the hospital, 9 and that because he was in the recovery room (after the The Loeffler son alleges that he was injured 10 doctor had left and translation duty ended) he was present 11 when his father had a stroke. 12 any event have run the risk of being present when his father 13 had a stroke--unless he claims that he would not have 14 visited the hospital at all as his father lay dying. 15 Moreover, I do not see how, in showing injury or calculating 16 damages, the trauma of translating at the hospital can be 17 teased apart from the overarching and subsuming trauma of 18 having a father who was dying over time from a heart 19 condition and a stroke. 1 2 3 4 5 But the young man would in Difficulties of this nature may be 7 He claims he suffered stress because he could not think of the sign for stroke when he was translating the doctor s diagnosis for his mother. No doubt, the situation was inherently stressful, but the incremental stress could have been alleviated by use of a pad and pencil. 12 1 one reason why this case, originally filed in 1995, is still 2 in progress, with no prospect of resolution. 3 * * * 4 For these reasons, I conclude that the district court 5 properly dismissed the children s claims for associational 6 discrimination under the RA. 7 opinion does not prejudge the analogous question under the 8 ADA. In any event, the majority 13
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