Date: 10-06-2009

Case Style: Josephine Loeffler v. Joanne Amore and ann Rappoccio

Case Number: 07-1404

Judge:

Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: Alan Rich, Brooklyn, New York, for Plaintiffs-Appellants.

ALAN JENKINS, New York, NY, for amicus curiae The Opportunity Agenda.

Defendant's Attorney: Roy W. Breitenbach, Garfunkel, Wild & Travis, P.C., Great Neck, New York, for Defendant-Appellee.

Description: 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 4 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. 21 Because this case comes to us on the grant of summary 3 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 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. 6 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� 7 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 8 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 9 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 10 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. 11 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 12 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 13 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 On October 4, 2004, Kristy and Bobby withdrew their 4 claims based on common law negligence and the State HRL. Loeffler, 2007 WL 805802, at *3 n.3. The district court denied the Loefflers’ claims for 5 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 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. Id. at *7-8. 4 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, and declined to exercise 5 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 15 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 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. 16 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 17 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:� 18 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 19 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 20 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 21 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. 22 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 However, Kristy and Bobby withdrew their claims 6 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 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 24 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., 25 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). 26 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, The Loefflers’ submissions regarding the impact of 7 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). We note, without expressing an opinion, that amicus 8 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 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. We leave it to the district 7 8 court to interpret any specific, applicable provisions in 9 the first instance. 8 10 IV 11 Finally, the district court declined to exercise Kristy’s and Bobby’s common law negligence claims 9 were voluntarily withdrawn. See Loeffler, 2007 WL 805802, at *3 n.3. 28 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). Because we 9 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.�).

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See: http://www.ca2.uscourts.gov/decisions/isysquery/f46d027f-4fd6-467b-807f-5c94af62c0c8/9/doc/07-1404-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f46d027f-4fd6-467b-807f-5c94af62c0c8/9/hilite/

Outcome: For the foregoing reasons and the reasons set forth in Judge Wesley’s opinion, the district court’s order of February 27, 2007, is vacated and remanded in part for further proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: