Opinion
No. 99 Civ 3215 (RCC)
July 16, 2002
Opinion Order
Plaintiff Carlos Alvarez ("Plaintiff' or "Alvarez"), who is hearing impaired, claims that Defendant, New York City Health and Hospitals Corporation ("Defendant") violated his rights under the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. ("ADA"), the Rehabilitation Act, 29 U.S.C. § 794 et seq. and state and city laws, by failing to provide him with the services of an interpreter during his stay at Jacobi Medical Center. Defendant moves for summary judgment on the grounds that it has a policy of providing its hearing-impaired patients with interpreters and other forms of communication, it did not intentionally discriminate against Plaintiff, and Plaintiff could communicate with his medical providers through written notes. For the reasons explained below, Defendant's motion is granted.
Plaintiff is no longer pursuing his claims under 42 U.S.C. § 1983.
I. Background
In the five years preceding the visit giving rise to this lawsuit, Plaintiff regularly sought medical treatment from Jacobi Medical Center in the Bronx. Plaintiff Dep. at 66, Klepfish Decl. Ex. A.; Schmitz Decl. ¶ 6. Jacobi posts Patients Bill of Rights notices throughout the hospital, including the emergency room, notifying patients that the services of sign language interpreters can be obtained by calling the Patient Relations department. Plaintiff Dep. at 66-67, Klepfish Decl. Ex. A; Schmitz Decl. ¶ 4. According to hospital policy, after 5 p.m. and on weekends, the Nursing Office handles requests for interpreters. See Jacobi Medical Center Policy Statement Regarding Communication/Interpreter Services for the Deaf/Hearing Impaired, Alvarez Decl. Ex. C (explaining that the "Nursing Office can be reached for assistance with these services" after hours and on weekends). Plaintiff was familiar with Jacobi's policies and had utilized the services of the Jacobi-provided interpreters during his prior visits. Plaintiff Dep. at 66; Klepfish Decl. Ex. A; Plaintiff Dep. at 163, Klepfish Decl. Ex. B; Schmitz Decl. Ex D (bills to Jacobi from interpreters providing services to Plaintiff in 1995-1998).
Plaintiff disputes Schmitz's contention that she has first-hand knowledge of the facts and circumstances giving rise to this action. Ms. Schmitz has been the Associate Director of Risk Management at Jacobi Hospital since 1988. The Court finds that she does have first-hand knowledge of the hospital's policies, its admissions records and the bills it received for Plaintiff's interpreter services.
On the evening of July 10, 1998, Plaintiff sought treatment in Jacobi's emergency room for an infection around his neck. Plaintiff's hearing, Spanish-speaking mother accompanied him to the hospital. Plaintiff Dep. at 85, Klepfish Decl. Ex. A. Upon arriving at the emergency room, Plaintiff requested, and was provided, use of a TTY machine. Plaintiff Dep. at 58-59, Klepfish Decl. Ex A. Using the TTY, Plaintiff claims he called Patient Relations to request an interpreter, but the office was closed. Alvarez Decl. ¶ 22. He did not contact the Nursing Office. He then called his friend, Mary Anne Gluszak-Brown, to ask that she come interpret for him. Plaintiff Dep. at 59, Klepfish Decl. Ex. A. Ms. Brown informed Plaintiff on Monday, July 13, that she would not be able to assist him. Plaintiff Dep. at 111-12, Klepfish Decl. Ex A. Plaintiff testified at his deposition that he was able to communicate with his doctor during the two days he spent in the emergency room through written notes. Plaintiff Dep. at 101, Klepfish Decl. Ex. A (Q: "So you were able to communicate with notes to the doctor, and he was able to communicate with you?" . . . A: "We wrote back and forth, yes.").
A TTY enables hearing-impaired individuals to communicate over telephone lines.
On Monday, July 13, Plaintiff's doctors moved him to an isolation room because he had the contagious virus for chicken pox. A nurse posted a sign outside his room that instructed medical staff to wear masks and gloves to avoid contracting and spreading Plaintiffs infection. Plaintiff Dep. at 77, Klepfish Ex. B. At Plaintiff's request, the hospital staff changed the sign the same day to remove the requirement that a mask be worn in his room as Plaintiff would be unable to read lips if his health care providers' mouths were concealed. Plaintiff Dep. at 77, 84, Klepfish Decl. Ex. B.
Plaintiff now claims that he is not adept at reading lips and that method of communicating is unreliable. Alvarez Aff. n. 1.
On the same day that he was assigned a private room, July 13, Plaintiff made his first and only written request for an interpreter. Plaintiff Dep. at 139, Klepfish Decl. Ex. B; Alvarez Decl. ¶ 13. Alvarez does not dispute that Patient Relations provided an interpreter the following day. Defendant's Rule 56.1 Statement ¶¶ 42-44; Plaintiff Dep. at 128, Alvarez Aff. Ex. M. However, Plaintiff refused the interpreter's assistance because the interpreter allegedly was not certified. Plaintiff Dep. at 165, Klepfish Decl. Ex. B. Plaintiff had previously used that particular interpreter for regular doctor visits, but did not think he would work for the "emergency" situation. Plaintiff Dep. at 164; Klepfish Decl. Ex. B ("I prefer certified interpreters."); see also Plaintiff Dep. at 168, Klepfish Decl. Ex. B (A: "He's good for regular doctor appointments, and that is it, for simple items, but for emergency items when we are going to get into really deep things — emergencies are very long and very fast." Q: "How do you know that he was not able to interpret in an emergency?" A: "I'm aware of his skill. . . ." Q: "So did you ever seem him try to interpret in an emergency?" A: "No."). Further, Plaintiff claims that the interpreter was not provided to assist his medical treatment, rather he was present to clarify an incident that had occurred on July 13 in which the Plaintiff and a nurse accused each other of assault. Alvarez Decl. ¶ 33. After refusing this interpreter, Plaintiff did not request another one and no other interpreter was provided. Plaintiff Dep. at 139, Klepfish Decl. Ex. B. He did have access to a TTY in his private room until he was discharged on July 22. Defendant's 56.1 Statement ¶ 40. Plaintiff has no complaints regarding the quality of medical care he received. Plaintiff returned to Jacobi Medical Center in the fall of 1998 for a circumcision, but has since sought medical care at Beth Israel Hospital. Plaintiff Dep. at 172, Klepfish Decl. Ex. B.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate where the parties' submissions demonstrate "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). In evaluating a summary judgment motion, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. "Conclusory allegations, conjecture, and speculation, however, are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
B. ADA and Rehabilitation Act Claims
Plaintiff has three distinct claims invoking the ADA and the Rehabilitation Act. First, Plaintiff seeks $500,000 in damages for discrimination in violation of Title II of the ADA. 42 U.S.C. § 12132; Complaint at ¶¶ 35-39. Second, Plaintiff claims Defendant discriminated against him in contravention of Title III of the ADA. 42 U.S.C. § 12182; Complaint ¶ 40. Third, Plaintiff claims he was discriminated against in violation of the Rehabilitation Act. 29 U.S.C. § 794; Complaint ¶¶ 41, 42.
Section 12132 prohibits discrimination by public entities, which includes any State or local government. 42 U.S.C. § 12131(1)(A). Damages are available under § 12132 as they would be under 42 U.S.C. § 2000d. See 42 U.S.C. § 12133 (stating remedies available for violations of § 12132 are the same as those available under 29 U.S.C. § 794a); 29 U.S.C. § 794a (explaining available remedies are outlined in 42 U.S.C. § 2000d et seq.); Barnes v. Gorman, 122 S.Ct. 2097, 2100(2002) (same).
Section 12182 prohibits discrimination by private entities operating public accommodations. Defendant here is a public entity and therefore Plaintiff has failed to state a claim under 42 U.S.C. § 12182.
The ADA dictates that "[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financing assistance. . . ." 29 U.S.C. § 794(a); see also Garcia v. SUNY Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001) (explaining "§ 504 of the Rehabilitation Act and Title II of the ADA offer essentially the same protections for people with disabilities"). The regulations implementing the Rehabilitation Act explain that hospitals employing fifteen or more people "shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question." 45 C.F.R. § 84.52(d)(1): "The regulations do not, however, require that the Defendant provide services which "produce the identical result or level of achievement for handicapped and nonhandicapped persons' so long as they `afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit . . . in the most integrated setting appropriate to the person's needs.'" Freydel v. New York Hosp., 242 F.3d 365 (table) (2d Cir. 2000) (quoting 45 C.F.R. § 84.4(b)(2)).
To state a prima facie case under the ADA or Rehabilitation Act, Plaintiff must demonstrate that he is a qualified individual, that the Defendant is a public entity and that he was denied the benefits of the public entity because of his disability. Lincoln CERCPAC v. Health Hosps. Corp., 977 F. Supp. 274, 278-280 (S.D.N.Y. 1997), aff'd 147 F.3d 165 (2d Cir. 1998). As the parties agree that Plaintiff is a qualified individual with a disability and that Defendant is a public entity, the issue before the Court is whether Defendant discriminated against Plaintiff. Under either statute, to prove discrimination and receive damages, Plaintiff would have to demonstrate discriminatory intent, amounting to deliberate indifference, by an official with authority to address the alleged discrimination. Garcia, 280 F.3d at 115; Freydel, 242 F.3d 365 (table); Constance v. SUNY Health Ctr. at Syracuse, 166 F. Supp.2d 663, 667 (N.D.N.Y. 2001); Freydel v. New York Hosp., 97 Civ. 7926 (SHS), 2000 WL 10264, at *4 (S.D.N.Y. Jan. 4, 2000).
For purposes of the Rehabilitation Act claim, the parties agree that Defendant receives Federal financial assistance. Lincoln CERCPAC v. Health Hosps. Corp., 977 F. Supp at 278.
In his effort to demonstrate discriminatory intent, Alvarez contends that Jacobi Medical Center denied him the opportunity to participate in his medical care and treatment because it did not assign him an interpreter. Moreover, Plaintiff would prefer that he not have to request an interpreter at all. Plaintiff Dep. at 67, Klepfish Decl. Ex. A ("But I don't like this idea that I am responsible for that. I really want the doctors to have that. They should know how to get an interpreter. That's really very embarrassing for me."); Alvarez Aff. ¶ 19.
Plaintiff cannot make the required showing of deliberate indifference. First, the parties do not dispute that Jacobi Medical Center had a policy of providing interpreters at the request of hearing-impaired patients. Plaintiff was familiar with this policy as he had used Jacobi-provided interpreters in the past. Second, Defendant provided Alvarez with an interpreter within a day of his request. A day's delay cannot be the basis for a showing of deliberate indifference. See Freydel v. New York Hosp., 2000 WL 10264, at *1 (granting summary judgment to defendant hospital where hospital only provided interpreter services after four or five days of plaintiff's repeated requests); see also Constance v. SUNY Health Ctr. at Syracuse, 166 F. Supp.2d at 668 (granting summary judgment to defendant hospital, even though it may have been "negligent for failing to follow up on [plaintiff's] request [for an interpreter]"). Finally, Plaintiff did not have the assistance of an interpreter only because he rejected the interpreter that Jacobi provided. Plaintiff Dep. at 164-168, Klepfish Decl. Ex. B. Although Plaintiff did not have problems with this interpreter when he had used him in the past, Plaintiff assumed that he would not be effective in the "emergency" situation. Id. Plaintiff has not provided any evidence that the Jacobi-provided interpreter was not qualified to assist him. As no reasonable juror could find that Defendant deliberately discriminated against Plaintiff based on his disability, Plaintiff has failed to make a prima facie case and Defendant's motion for summary judgment is granted.
C. State and City Claims
Having dismissed all the federal causes of action, this Court declines to exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3).
III. Conclusion
For the reasons stated above, Defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close the case.
So ordered.