Loeffler v. Staten Island University Hospital

• Court: Court of Appeals for the Second Circuit
• Decided: October 6, 2009
• Docket: 07-1404-cv
• Status: Published

Opinion

07-1404-cv Loeffler v. Staten Island University Hospital

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2008 6 7 (Argued: March 19, 2009 Decided: October 6, 2009) 8 9 Docket No. 07-1404 10 11 - - - - - - - - - - - - - - - - - - - -x 12 JOSEPHINE LOEFFLER, as Administratrix of 13 the Estate of Robert A. Loeffler and 14 individually, ROBERT C. LOEFFLER, 15 and KRISTY LOEFFLER, 16 17 Plaintiffs-Appellants, 18 19 JOANNE AMORE and ANN RAPPOCCIO, 20 21 Plaintiffs 22 23 24 - v.- 25 26 STATEN ISLAND UNIVERSITY HOSPITAL, 27 28 Defendant-Appellee.* 29 30 - - - - - - - - - - - - - - - - - - - -x 31 32 Before: JACOBS, Chief Judge, WESLEY, Circuit 33 Judge, and SAND, District Judge.** 34

* 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. Plaintiffs alleged that the hospital failed to

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. We conclude: (I) that the parents have

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 Chief Judge JACOBS dissents from the majority of the

18 panel as to Part II of this opinion; Judge WESLEY sets

19 forth the decision of the court as to Part II in a separate

20 opinion.

22 ALAN J. RICH, Brooklyn, NY, for 23 Plaintiffs-Appellants.

2 1 ROY W. BREITENBACH, Garfunkel, 2 Wild & Travis, P.C., Great Neck, 3 NY, for Defendant-Appellee. 4 5 ALAN JENKINS, New York, NY, for 6 amicus curiae The Opportunity 7 Agenda. 8 9 10 DENNIS JACOBS, Chief Judge: 11 12 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 The Hospital does not contest that Robert and Josephine

28 were deaf, that it was required by law to provide an

3 1 interpreter, and that it failed to do so. The district

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. 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. We also vacate the

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.

4 1 BACKGROUND3

2 Robert previously had heart surgery at the Hospital in

3 1991. At that time, he requested an American Sign Language

4 (“ASL”) interpreter; but though the Hospital’s records

5 reflected the need for one, none was provided. Kristy (age

6 12 at the time) and Bobby (age 9) interpreted for their

7 father.

8 The present case concerns Robert’s surgery at the

9 Hospital in the fall of 1995. Robert was scheduled for a

10 right carotid endarterectomy on October 27, 1995. In the

11 days and weeks leading up to the surgery, the Loefflers made

12 numerous attempts to secure an interpreter from the

13 Hospital. Bobby (age 13 at the time) claims that during

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. . . .” Numerous

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.

3 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). The Hospital

2 maintains that they have no records showing any such

3 requests.

4 At the relevant time, the Hospital’s policy was to

5 provide sign language interpreters:

6 When a physician, nurse or other 7 professional staff member determines an 8 interpreter is needed, and when in the 9 opinion of the patient, effective 10 communication cannot be established 11 without an interpreter, the following 12 procedure applies . . . [during business 13 hours t]he Speech and Hearing Center 14 staff will call the interpreters on call 15 to arrange to provide interpretation. . . 16 . In the event that we cannot reach our 17 interpreters on call, we will contact the 18 New York Society for the Deaf. Where the 19 need for an interpreter is known in 20 advance . . . arrangements are to be made 21 in advance with an interpreter. (emphasis 22 added) 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”). Appellee’s Br. at 9.

27 The PRD was run by its Director, Patricia Ferrara, and two

28 “patient representatives,” one of whom was Antoinette

29 Henderson. Requests made after hours were to go to the

30 Assistant Director of Nursing (“ADN”), who should determine

31 whether it is necessary to contact an interpreter “on call”

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. At the pre-op room,

7 Bobby asserts that he again requested an interpreter from

8 Dr. Sithian. Surgery began at noon. During the procedure,

9 various family members visited the PRD at least four times

10 to request an interpreter. The Hospital contends that no

11 request for an interpreter for that hospital visit was made

12 until 2pm or 3pm. Appellee’s Br. at 9-10.

13 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. Henderson does not remember the Loefflers

19 ever explicitly asking for a TTY, but recalls advising that

20 Robert could use one if he was in a private room.

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. Henderson then got

9 back in touch with SHD, and obtained four telephone numbers

10 for ASL interpreters. Two numbers were out of service, and

11 two were unanswered. (The Loefflers claim that the list was

12 outdated.) Henderson told Josephine and her mother that no

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 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. Bobby again asked about an

20 interpreter, explaining to Dr. Sithian that he did not “feel

21 comfortable doing this and . . . [did not] understand some

22 of the terms.” Dr. Sithian assured Bobby that he was “doing

8 1 just fine.” According to Bobby, Dr. Sithian “patted me on

2 the back, and laughed it off like usual.” Dr. Sithian left

3 Bobby at his father’s bedside in the Recovery Room.

4 Soon after the surgery, Robert suffered a stroke. He

5 grabbed his ankle and writhed in pain. Bobby alerted a

6 nearby nurse, who responded with indifference and opined

7 that “that was how deaf people communicate.” Bobby

8 disagreed, and she responded, “what do you know, you’re a

9 kid.” Bobby raised a disturbance for two to five minutes

10 until Dr. Sithian came back.

11 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. Henderson gave the nurse the two telephone

21 numbers that had not been disconnected. Henderson was

22 unaware of Robert’s stroke; the charge nurse never tried

9 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. Loeffler, 2007 WL 805802, at *2. According

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.” Josephine also claims she requested a TTY

14 in order to avoid making extra car trips to the Hospital,

15 but the request was denied. From October 27 to November 7,

16 1995, the family continued to rely on Kristy and Bobby, who

17 stayed out of school to remain on duty as translators. Id.

18 The Loefflers claim that the Hospital gave Kristy a pager so

19 she could be “on call.” Both Bobby and Kristy claim to have

20 suffered depression as a result of their father’s stroke,

21 and the role they performed in relaying medical information.

22 Id.

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.” It is unclear whether the interpreter to whom the

6 charge nurse was referring was Kristy, or someone else. At

7 some point, Henderson spoke with her director, Nancy

8 Ferrara, about the Loefflers’ interpreter request.

9 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. The district court issued an

15 order to show cause compelling the Hospital to provide a

16 sign language interpreter. On November 8, 1995, the

17 Hospital stipulated to all requested relief, and thereafter

18 provided Robert with interpretive services for the duration

19 of his stay. Loeffler, 2007 WL 805802, at *3. (Robert was

20 finally discharged from the Hospital at some point in

21 December 1995.)

22 Within two months of the Loeffler incident, the

11 1 Hospital amended its sign language interpreter policy. Id.

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. The Loefflers

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.

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. The

12 1 Loefflers also sought punitive damages.

2 After extensive discovery, the Hospital moved for

3 partial summary judgment. By order dated February 27, 2007,

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. The district court dismissed Robert’s

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

10 the Hospital acted with deliberate indifference. Loeffler,

11 2007 WL 805802, at *4-6. The district court determined that

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.” Id. at *5-6. Treating Robert’s and

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. Id. at *4, *6.

20 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. Id. at *7. And since Kristy and

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 Id. at *7-8.

7 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. Id. at *9, *11.

12 The Loefflers timely appealed. They argue principally

13 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.

9 DISCUSSION

10 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.” Wright v. Goord, 554 F.3d

14 255, 266 (2d Cir. 2009) (internal quotation marks, citation,

15 and brackets omitted); see also Fed. R. Civ. P. 56(c).

16 I

17 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.” 29 U.S.C.

15 1 § 794(a). Under the RA’s implementing regulations, 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.” 45 C.F.R. § 84.52(c). Additionally, a

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

10 benefit from the service in question.” Id. § 84.52(d)(1).

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. See Alexander v. Choate, 469 U.S.

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

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. See Rothschild v. Grottenthaler, 907

11 F.2d 286, 289-90 (2d Cir. 1990).

12 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. See 29 U.S.C. § 794a(a)(2). However, monetary

16 damages are recoverable only upon a showing of an

17 intentional violation. See Bartlett, 156 F.3d at 331 (“The

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 The standard for intentional violations is “deliberate

22 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. Rather, intentional

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.’” Bartlett, 156 F.3d at 331

9 (internal citations omitted). See also Duvall v. County of

10 Kitsap, 260 F.3d 1124, 1138-39 & n.13 (9th Cir. 2001).

11 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. The

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 We have not defined “deliberate indifference” in this

18 context. In Gebser v. Lago Vista Indep. School Dist., 524

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. Nothing

18 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 [A]n official who at a minimum has 5 authority to address the alleged 6 discrimination and to institute 7 corrective measures on the recipient’s 8 behalf has actual knowledge of 9 discrimination in the recipient’s 10 programs and fails adequately to respond. 11 12 Id. at 290. In a separate context, we have also said that

13 deliberate indifference must be a “deliberate choice . . .

14 rather than negligence or bureaucratic inaction.” Reynolds

15 v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007)(citing Pembaur

16 v. Cincinnati, 475 U.S. 469, 483-84 (1986)).

17 Here, the district court concluded that no reasonable

18 jury could find that the Hospital acted with deliberate

19 indifference. The district court conceded that the

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.” Loeffler, 2007 WL 805802, at *6. But the

19 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.” Id. at *5-6. The court was

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.” Id. at *6. Thus, the court

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.” Id.

15 We disagree. The record in this case can support a

16 finding of deliberate indifference. To begin with, it is

17 not clear that the district court construed all the facts in

18 the light most favorable to the Loefflers. Most notably,

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 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. Further,

5 the district court did not expressly consider the Loefflers’

6 several requests for a TTY device, also unheeded. Nor did

7 the district court mention Bobby’s testimony that Dr.

8 Sithian “laughed off” Bobby’s requests for an interpreter.

9 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. The Hospital may have had a

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. Perhaps most indicative, there is evidence

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.” This evidence, taken together, would

22 allow a jury to find deliberate indifference.

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. As the district court explained,

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. But the

8 testimony of the Loefflers and other family members,

9 together with the obvious shortcomings in the policy and 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 II

17 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. The district court

22 dismissed these claims on the ground that the Loeffler

22 1 children lacked statutory standing under the RA.

2 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. The opinion of Judge Wesley

7 constitutes the opinion of the Court as to this issue. I

8 dissent, and would affirm the district court’s dismissal of

9 the children’s associational discrimination claims. My

10 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. But, we

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.

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.” N.Y.C.

13 Admin. Code § 8-107(4)(a). The City HRL also explicitly

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.” N.Y.C.

20 Admin. Code § 8-107(20).

21 City HRL claims have typically been treated as co-

22 extensive with state and federal counterparts. See, e.g.,

24 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.”). However, the New York City

5 Council has rejected such equivalence. The Local Civil

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 federal and state anti-discrimination law:

11 The provisions of this [] title shall be 12 construed liberally for the 13 accomplishment of the uniquely broad and 14 remedial purposes thereof, regardless of 15 whether federal or New York State civil 16 and human rights laws, including those 17 laws with provisions comparably-worded to 18 provisions of this title, have been so 19 construed. 20 21 Restoration Act § 7. There is now a one-way ratchet:

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.” Id. §

27 1 (emphasis added).

25 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 As a result of [the Restoration Act], the 6 City HRL now explicitly requires an 7 independent liberal construction analysis 8 in all circumstances, even where state 9 and federal civil rights laws have 10 comparable language. The independent 11 analysis must be targeted to 12 understanding and fulfilling what the 13 statute characterizes as the City HRL’s 14 “uniquely broad and remedial” purposes, 15 which go beyond those of counterpart 16 state or federal civil rights laws. . . . 17 As New York’s federal and state trial 18 courts begin to recognize the need to 19 take account of the Restoration Act, the 20 application of the City HRL as amended by 21 the Restoration Act must become the rule 22 and not the exception. . . . 23 24 [T]he Restoration Act notified courts 25 that (a) they had to be aware that some 26 provisions of the City HRL were textually 27 distinct from its state and federal 28 counterparts, (b) all provisions of the 29 City HRL required independent 30 construction to accomplish the law’s 31 uniquely broad purposes, and (c) cases 32 that had failed to respect these 33 differences were being legislatively 34 overruled. 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). See also Phillips v. City

38 of New York, 884 N.Y.S.2d 369, 377 n.10 (1st Dep’t July 28,

26 1 2009).

2 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 We leave it to the district

8 court to interpret any specific, applicable provisions in

9 the first instance. 8

10 IV

11 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 pre- existing 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. See 28 U.S.C. § 1367(c)(3).9 Because we

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. See, e.g.,

8 Grandon v. Merrill Lynch & Co., Inc., 147 F.3d 184, 195 (2d

9 Cir. 1998).

10 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. See Norton v. Sam’s Club, 145

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.”).

18 CONCLUSION

19 For the foregoing reasons and the reasons set forth in

20 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 Richard Wesley, Circuit Judge, concurring with Judge Sand.

2 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. Consequently, I concur in parts I and IV.

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 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 In our view, Bobby

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 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. Bobby and Kristy make such

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. Furthermore, even under a more

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 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. . . .” 29 U.S.C. § 794(a).

Page 2 of 14 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. 29 U.S.C. § 794a(a)(2). This includes the non-

12 disabled. In fact, “the use of such broad language in the

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.” Innovative Health Sys., Inc. v. City of

17 White Plains, 117 F.3d 37, 47 (internal quotation marks

18 omitted).

19 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.” 29 U.S.C.

6 § 794(a). As we made clear in Innovative, we interpret the

7 standing provision of the RA as broadly as possible under

8 the Constitution, irrespective of § 794(a). See Innovative

9 Health Sys., 117 F.3d at 47. 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. In our view, Bobby

Page 4 of 14 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. Second,

9 because they had to provide interpretation – and be on-call

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 This is especially true for then-

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 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. In Popovich v. Cuyahoga County Court of Common

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” – was

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].” 4 150 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 federally imposed obligation.

2 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. No.

8 95 C 1401, 1995 U.S. Dist. LEXIS 15777, at *16 (N.D. Ill.

9 Oct. 24, 1995). 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. Absent the Hospital’s

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. If Bobby and

21 Kristy had not known sign language but instead had paid for

Page 7 of 14 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? What is different

4 when two children are pressed into service by the Hospital?

5 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.’” 117 F.3d at 47 n.14 (quoting 28 C.F.R. pt.

13 35, app. A at 470) (emphasis omitted). We recognized that

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. This injury need not

18 necessarily be limited to an inability to provide services

19 to disabled persons. We believe United States v. City of

20 Charlotte, N.C., 904 F. Supp. 482 (W.D.N.C. 1995),

21 illustrates this. 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. Id. at 486. The

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.” Id.

9 Bobby and Kristy have suffered injuries even more

10 direct than those of the contractor. Indeed, it seems

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 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. Two children

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 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). The Hospital failed to provide sign language

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. As Bobby testified, the Hospital relied on the

9 children to translate complicated medical terms that the

10 children were not capable of understanding. In other words,

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. As a

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 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. We are

4 sending the case to trial to resolve such disputes. But

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. A trial

8 in this case will center on whether rights were violated,

9 not if those rights exist. 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. While the dissent’s hypothetical list of horrors

7 may have some simplistic appeal it has no real correlation

8 to the injuries presented here. Two children were required

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. If our dissenting

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. We see this case as

19 materially different in kind. It is not the dawn of never-

20 ending liability for the Hospital, it is what Congress

21 required – a link to the hearing world.

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:

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 . . . shall, solely by reason

9 of her or his disability, [i] be excluded from the

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.” 29 U.S.C. § 794(a)

13 (emphases added). The next section provides a private right

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.” 29 U.S.C. § 794a(a)(2).

20 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 As I undertake to demonstrate in four

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).

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 1 In passing, the majority suggests that the children 2 themselves may have been denied a service guaranteed under 3 the RA because they were denied a translator. But this is 4 surely odd, because, as persons with normal hearing, they 5 needed no translator--which is of course the whole premise 6 of their claim. 7 The majority opinion tweaks the argument by saying they 8 were denied “adequate sign language interpretation” because 9 they had to translate “complicated medical terms” that they 10 did not understand. (emphasis added). But that deprivation 11 comes down to a single medical term (“stroke”). See 12 infra at n.7. Certainly the children cannot contend that 13 they needed a superior translator at bedside to explain 14 their father’s condition since [i] with normal hearing, they 15 did not need ASL to communicate with the doctor, [ii] if 16 they did not understand “stroke” when it was spoken, they 17 would not have understood it when it was translated in ASL 18 by someone who did, and [iii] their main point is that they 19 would not have been with their father in the hospital if any 20 other translator had been present.

2 1 Nodleman v. Aero Mexico, 528 F. Supp. 475, 479-80 (C.D. Cal.

2 1981). The court declined to dismiss her associational

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 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). An addiction rehabilitation center

12 challenged the denial of a zoning permit, alleging that the

13 city was discriminating against the center’s patients. Id.

14 at 47. We relied particularly on Nodleman, and the “broad

15 language” of the RA’s enforcement provision. Id.

16 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. Crucially, in both Nodleman and

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). The plaintiffs

3 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. They

13 assisted their parents in coping with an alleged violation

14 of the RA without themselves being denied services. They

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 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. For instance, in Popovich v. Cuyahoga County

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. 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.” Id. at

14 427. She may have been aggrieved, but she was not denied

15 services.

16 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. The district court dismissed the

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

5 1 separate injury because the companion is denied the use of

2 the service or facility. The [parents] were not at the

3 medical center for any purpose other than to seek treatment

4 for [the child]. [The child’s] ejection, and that of his

5 parents, was merely the final act in the decision to deny

6 [the child] medical treatment.” 1995 WL 631804, at *6. See

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

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. See, e.g., 42 U.S.C. §

22 12201(a); H.R. Rep. No. 101-485, at 84 (1990), as reprinted

6 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”); McDonald v. Commonwealth of Pa.,

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 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

2 1 After passage of the ADA, the RA was amended in part 2 to codify the congruence. See, e.g., 29 U.S.C. § 794(d) 3 (“The standards used to determine whether this section has 4 been violated in a complaint alleging employment 5 discrimination under this section shall be the standards 6 applied under title I of the Americans with Disabilities Act 7 of 1990.”).

7 1 with whom the qualified individual is known to have a

2 relationship or association.” 42 U.S.C. § 12112(b)(4)

3 (emphases added). An associated person has a claim only if

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 (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

3 1 We nevertheless held in Innovative Health Sys. that 2 Title II supports claims for associational discrimination. 3 See 117 F.3d at 47 (“According to the [defendant], because 4 Title II does not contain similar language, Congress 5 intended to prevent standing based on association under this 6 section. Although courts generally should be reluctant to 7 conclude that the omission of language in one part of a 8 statute that is included in another is unintentional, . . . 9 there is extensive support in this instance to read the 10 specific examples of discrimination from the other two 11 titles into Title II.”).

8 1 individual with whom the individual or entity is known to

2 have a relationship or association.” 28 C.F.R. § 35.130(g)

3 (emphases added). 4

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.” 42 U.S.C. §

12 12182(b)(1)(E) (emphases added).

13 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 The evidence suggests that Congress interpreted the RA

17 the same way. Under the ADA’s general rule of construction,

4 1 As noted in Innovative Health Sys., the preamble to 2 28 C.F.R. § 35.130(g) explains: “This provision was intended 3 to ensure that entities such as health care providers, 4 employees of social service agencies, and others who provide 5 professional services to persons with disabilities are not 6 subjected to discrimination because of their professional 7 association with persons with disabilities.” 28 C.F.R. pt. 8 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.” 42 U.S.C. § 12201(a). 5 If

4 “standard” is construed broadly, as it is evidently used and

5 intended, it subsumes statutory standing. It then follows

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 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 III

13 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. Relatives and friends

16 of patients routinely provide additional or complementary

17 services to patients. Once a breach of duty is found under

18 the RA, everybody and his mother (literally) will be able to

19 submit a bill for services and injuries. A friend lifts a

5 1 The legislative history of § 12201 explains: “This 2 section explains the relationship between section 504 of the 3 Rehabilitation Act of 1973 and [the Americans with 4 Disabilities] Act.” H.R. Rep. No. 101-485, at 44 (1990), as 5 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 If this

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

6 1 The central purpose of the anti-discrimination 2 statutes is to deter discrimination before it occurs--not 3 necessarily to provide full and adequate compensation for 4 harms that are at best tangentially related to the 5 deprivation suffered by a person with disabilities. The 6 preamble to the Americans with Disabilities Act states: “It 7 is the purpose of this chapter[] to provide a clear and 8 comprehensive national mandate for the elimination of 9 discrimination against individuals with disabilities.” 42 10 U.S.C. § 12101(b)(1). If the goal were to yield 11 compensation, the recovery of money damages would not be 12 conditioned on proof of intentional discrimination. See 13 Bartlett v. N.Y. State Bd. of Law Exam’rs, 156 F.3d 321, 331 14 (2d Cir. 1998) (under the RA and ADA, monetary damages are 15 recoverable only upon a showing of an intentional 16 violation), vacated on other grounds and remanded, 527 U.S. 17 1031 (1999). 11 1 actually have to be excluded, denied, or subjected to

2 discrimination in order to recover damages.

3 IV

4 Claims of the kind that the majority opinion recognizes

5 create intractable administrative problems for judges and

6 juries. The Loeffler son alleges that he was injured

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

10 doctor had left and translation duty ended) he was present

11 when his father had a stroke. But the young man would in

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. Difficulties of this nature may be

7 1 He claims he suffered stress because he could not 2 think of the sign for “stroke” when he was translating the 3 doctor’s diagnosis for his mother. No doubt, the situation 4 was inherently stressful, but the incremental stress could 5 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. In any event, the majority

7 opinion does not prejudge the analogous question under the

8 ADA.