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Date: 02-12-2019

Case Style:

Linda Reed v. Columbia St. Mary's Hospital

Case Number: 17-1469

Judge: Hamilton

Court: United States Court of Appeals for the Seventh Circuit

Plaintiff's Attorney:

Defendant's Attorney:

Description:





Plaintiff‐appellant Linda Reed alleges
that she suffered discrimination on the basis of her disabilities
while she was a patient at defendant‐appellee Columbia
St. Mary’s Hospital in March 2012. Among other things,
she contends that the hospital failed to accommodate her disabilities
by deliberately withholding from her a device she
used to speak and discriminated against her by putting her in
2 No. 17‐1469
a “seclusion” room to punish her. She brought claims under
Title III of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12181, which governs public accommodations offered
by private entities, including hospitals, as well as Section
504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Wisconsin
Mental Health Act, Wis. Stat. § 51.61.
The district court granted the hospital’s motion for summary
judgment, dismissing the federal claims with prejudice
and declining to exercise supplemental jurisdiction over the
remaining state‐law claims. Reed v. Columbia St. Mary’s Hospital,
236 F. Supp. 3d 1091 (E.D. Wis. 2017). The court held that
the hospital did not need to comply with Title III of the ADA
because it fell within the Act’s exemption for entities controlled
by religious organizations. Id. at 1103–04, citing 42
U.S.C. § 12187. The court also dismissed Reed’s Rehabilitation
Act claims, finding that the hospital’s alleged mistreatment of
Reed was not premised solely on Reed’s disability. Id. at 1105–
08.
We reverse. The hospital raised its religious exemption affirmative
defense to the ADA claims for the first time after
discovery, in its motion for summary judgment. We explain
below why we conclude it was an abuse of discretion to excuse
the hospital’s failure to raise this affirmative defense earlier.
We also reverse the dismissal of Reed’s Rehabilitation Act
claims on the merits because they depend on disputed facts.
I. Factual & Procedural Background
A. Reed’s Stay in the Hospital
Our statement of facts reflects our standard of review for
a grant of summary judgment. We cannot vouch for the objective
truth of every detail. We review the facts and draw all
No. 17‐1469 3
inferences from conflicting evidence in the light reasonably
most favorable to Reed as the non‐moving party. Greengrass
v. International Monetary Systems Ltd., 776 F.3d 481, 485 (7th
Cir. 2015).
Reed suffers from several disabilities, including tardive
dyskinesia (“TD”), bipolar disorder, and post‐traumatic stress
disorder. TD is a neurological disorder that causes involuntary
facial and limb movements and makes speaking difficult.
Reed has been prescribed a portable communication device
called a Dynavox that she can use to generate speech.
Reed entered the hospital’s emergency department on
March 8, 2012. She reported suicidal thoughts. She was admitted
to the inpatient behavioral health unit and left on March
12. Reed alleges that during her four‐day stay at the hospital
she was discriminated against in multiple ways. She claims
that she was denied the use of her Dynavox; that hospital staff
attempted to give her medication she was allergic to; that she
was denied timely access to her medical records; that she was
denied the use of a telephone to call her case manager (about
whom the record reveals little); that she was denied access to
a chaplain; and that she was physically escorted off the premises
by two security guards. Notably, the hospital’s corporate
representative and nursing supervisor, William Fry, testified
in his deposition that the Dynavox was locked up outside
Reed’s room at night and that she had access to it during the
day only “as long as her behavior was appropriate.”
The most severe of Reed’s allegations is that on March 11,
hospital staff refused to give her the Dynavox and took her to
a seclusion room, where she was dropped on a mattress on
the floor and later attempted suicide. Reed and the hospital
give differing accounts of what exactly took place during this
4 No. 17‐1469
incident. Reed claims that she asked for her Dynavox, that
hospital staff refused to give it to her, that her TD‐related
movements caused her to spill coffee on herself and to fall to
the ground, and that patient‐care assistant Andrew Miller
grabbed her and put her in the seclusion room for about two
hours. Miller testified, on the other hand, that Reed was on
the ground in a hallway crying and he told her she needed to
get out of the hallway. When he was walking her back to her
room, he claims, she began to scream and he and nursing supervisor
Fry decided to take her to the seclusion room. On review
of a grant of summary judgment for the defendant, of
course, we must accept the plaintiff’s version of events. Reed
was discharged the day after this incident. According to Reed,
her Dynavox and other possessions were thrown into a cab,
and she was pushed into it by a security guard and sent off.
B. The District Court Proceedings
Reed filed her first complaint pro se in February 2014. The
district court dismissed that case without prejudice. The next
month, Reed filed this new lawsuit, which the court construed
as raising claims under the ADA and the Rehabilitation Act.
The district court dismissed again, holding that the dismissal
of the prior suit had preclusive effect and alternatively that
Reed failed to state a claim. Reed appealed pro se. We vacated
and remanded because the first case had been dismissed without
prejudice and thus did not preclude the second. Reed v.
Columbia St. Mary’s Hospital, 782 F.3d 331, 335–36 (7th Cir.
2015). We also held that Reed stated viable claims under the
ADA and the Rehabilitation Act. Id. at 337.
On remand, the district court recruited counsel for Reed.
Her amended complaint asserted claims under the ADA for
intentional discrimination, denial of reasonable modification,
No. 17‐1469 5
and retaliation and intimidation; claims under the Rehabilitation
Act for intentional discrimination and denial of reasonable
accommodation; and patients’‐rights claims under Wisconsin
state law. The hospital filed answers to both the original
complaint and the amended complaint. Each answer asserted
several affirmative defenses. Neither answer mentioned
a religious exemption from the ADA. Discovery was
conducted from September 2015 to August 2016. In October
2016, the hospital moved for summary judgment, which the
district court granted.
II. Analysis
This appeal presents one procedural issue and a cluster of
substantive issues. The procedural issue is whether the district
court abused its discretion in allowing the hospital to
raise for the first time on summary judgment the affirmative
defense of the ADA’s Title III religious exemption. The substantive
issues concern the merits of the Rehabilitation Act
claims.
A. The ADA Claims
1. The Religious Exemption Defense Under ADA Title III
Title III of the ADA prohibits disability discrimination by
“public accommodations,” including hospitals. See 42 U.S.C.
§ 12181(7). Title III provides: “No individual shall be discriminated
against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation.”
42 U.S.C. § 12182(a). It is unlawful to “fail[] to take
such steps as may be necessary to ensure that no individual
with a disability is excluded, denied services, segregated or
otherwise treated differently than other individuals because
6 No. 17‐1469
of the absence of auxiliary aids and services,” unless the defendant
can show that such accommodation “would fundamentally
alter the nature of the good, service, facility, privilege,
advantage, or accommodation being offered or would
result in an undue burden.” § 12182(b)(2)(A)(iii). A physical
or mental impairment that “substantially limits one or more
major life activities,” including “speaking,” qualifies as a disability
under both the ADA and the Rehabilitation Act (discussed
below). See 42 U.S.C. § 12102(1)(A), (2)(A); 29 U.S.C.
§ 705(20)(B); 34 C.F.R. § 104.3(j)(2)(ii); 45 C.F.R. § 84.3(j)(2)(ii).
Title III of the ADA applies generally to hospitals, but Title
III exempts from its requirements “religious organizations”
and “entities controlled by religious organizations, including
places of worship.” 42 U.S.C. § 12187. This exemption is an
affirmative defense. A defendant invoking it must plead it in
the answer. See Fed. R. Civ. P. 8(c); Castro v. Chicago Housing
Authority, 360 F.3d 721, 735 (7th Cir. 2004). Rule 8(c) applies to
“any avoidance or affirmative defense,” and lists a number of
particular defenses that must be pleaded. The religious exemption
in Title III of the ADA is an affirmative defense because
it assumes the plaintiff can prove everything she must
to establish her claim but may still act to defeat her claim.1
It makes sense for the defendant claiming the Title III religious
exemption to bear the burden of pleading and proving
its religious control. We have said that a defense not listed in
Rule 8(c) is an affirmative defense that must be pleaded if the


1 “An affirmative defense is one that admits the allegations in the complaint,
but avoids liability, in whole or in part, by new allegations of excuse,
justification or other negating matters.” Divine v. Volunteers of America
of Illinois, 319 F. Supp. 3d 994, 1003 (N.D. Ill. 2018), quoting Riemer v.
Chase Bank USA, N.A., 274 F.R.D. 637, 639 (N.D. Ill. 2011).
No. 17‐1469 7
defendant bears the burden of proof on the issue under state
law or if the defense does not controvert the plaintiff’s proof.
Winforge, Inc. v. Coachmen Industries, Inc., 691 F.3d 856, 872 (7th
Cir. 2012). The religious exemption defense does not controvert
the plaintiff’s proof. It also draws on facts ordinarily
within the knowledge and control of the defendant. See Gomez
v. Toledo, 446 U.S. 635, 640–41 (1980) (qualified immunity is
affirmative defense under 42 U.S.C. § 1983; relevant facts are
peculiarly within knowledge and control of defendant);
Wright & Miller, Federal Practice & Procedure § 1271. An
ADA plaintiff should not need to spend the money to anticipate
this defense without fair and timely notice that the defendant
intends to rely upon it.

2. Consequences of Failure to Plead a Defense
A defendant’s failure to plead an affirmative defense may
result in a waiver of the defense if the defendant has relinquished
it knowingly and intelligently, or forfeiture if the defendant
merely failed to preserve the defense by pleading it.
See Wood v. Milyard, 566 U.S. 463, 470 & n.4 (2012). Some of
our opinions use the terms waiver and forfeiture interchangeably,
but Wood shows that we need to pay attention to the difference.
Whether courts apply waiver or forfeiture in response
to a failure to plead, the purpose of the pleading requirement
for an affirmative defense “is to avoid surprise and
undue prejudice to the plaintiff by providing her notice and
the opportunity to demonstrate why the defense should not
prevail.” Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir.
1997).
We have explained, however, that “the rule that forfeits an
affirmative defense not pleaded in the answer (or by an earlier
motion) is, we want to make clear, not to be applied rigidly.”
8 No. 17‐1469
Garofalo v. Village of Hazel Crest, 754 F.3d 428, 436 (7th Cir.
2014), citing Matthews v. Wisconsin Energy Corp., Inc., 642 F.3d
565, 570 (7th Cir. 2011). We will generally find that the failure
to plead an affirmative defense in the answer works a forfeiture
“only if the plaintiff is harmed by the defendant’s delay
in asserting it.” Id. There are limits, though, and in exercising
their discretion in such matters, district courts must be alert
to the real and practical harms that can result from failures to
plead. We have explained that
the district court has the discretion to allow an
answer to be amended to assert an affirmative
defense not raised at the outset. The pertinence
of a particular defense may only become apparent
after discovery, for example, in which case it
would be reasonable for the court to permit the
belated assertion of that defense. Nonetheless,
the defendant remains obligated to act in timely
fashion. Once the availability of an affirmative
defense is reasonably apparent, the defendant
must alert the parties and the court to his intent
to pursue that defense. A defendant should not
be permitted to “lie behind a log” and ambush
a plaintiff with an unexpected defense. The appropriate
thing for the defendant to do, of
course, is to promptly seek the court’s leave to
amend his answer. His failure to do [so] risks a
finding that he has waived the defense.
Venters, 123 F.3d at 967–68 (internal citations and quotation
marks omitted).
Pleadings shape the litigation, including the scope and
cost of discovery. Based on the claims and defenses raised in
No. 17‐1469 9
the pleadings, the parties can discover information that is relevant,
not privileged, and proportional to the needs of the
case. See Fed. R. Civ. P. 26. Many efficiencies are lost when
claims or defenses are left out of pleadings and a party then
attempts to assert them at later stages. At the same time, it is
not unusual for parties to discover new theories for claims or
defenses in the course of discovery. Timely motions to amend
pleadings for such newly discovered theories are appropriate
under Federal Rule of Civil Procedure 15(a).
We see these problems more often when plaintiffs try to
raise new theories or claims for the first time in opposing summary
judgment. The concerns about unfair surprise and prejudice
with unpleaded affirmative defenses are similar:
When a new argument is made in summary
judgment briefing, the correct first step is to consider
whether it changes the complaint’s factual
theory, or just the legal theories [the] plaintiff
has pursued so far. In the former situation, the
plaintiff may be attempting in effect to amend
its complaint, and the district court has discretion
to deny the de facto amendment and to refuse
to consider the new factual claims. In the
latter, the court should consider the consequences
of allowing the plaintiff’s new theory.
If it would, for example, cause unreasonable delay,
or make it more costly or difficult to defend
the suit, the district court can and should hold
the plaintiff to his original theory.
BRC Rubber & Plastics, Inc. v. Cont’l Carbon Co., 900 F.3d 529,
540 (7th Cir. 2018) (citations and internal quotation marks
10 No. 17‐1469
omitted), quoting Chessie Logistics Co. v. Krinos Holdings, Inc.,
867 F.3d 852, 860 (7th Cir. 2017).
We routinely enforce this stricture against plaintiffs who
wait until summary‐judgment briefing to raise a new claim,
despite the absence of an express pleading requirement, since
complaints need not identify legal theories. See, e.g., Anderson
v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012) (pro se plaintiff);
Whitaker v. Milwaukee County, 772 F.3d 802, 808 (7th Cir. 2014);
Trade Finance Partners, LLC v. AAR Corp., 573 F.3d 401, 412 (7th
Cir. 2009); Conner v. Illinois Dep’t of Natural Resources, 413 F.3d
675, 679–80 (7th Cir. 2005); Griffin v. Potter, 356 F.3d 824, 830
(7th Cir. 2004); Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir.
2002); Whitaker v. T.J. Snow Co., 151 F.3d 661, 663–64 (7th Cir.
1998); Auston v. Schubnell, 116 F.3d 251, 255 (7th Cir. 1997);
Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996);
Kostovetsky v. Ambit Energy Holdings, LLC, 242 F. Supp. 3d 708,
718–19 (N.D. Ill. 2017) (reviewing Seventh Circuit case law).
In much the same way, late assertions of affirmative defenses—
like the religious exemption to Title III of the ADA—
make litigation more costly and difficult and can make it unfairly
difficult for a plaintiff to pursue her claims.
3. The District Court’s Ruling
The district court held that the hospital did not waive or
forfeit its religious exemption affirmative defense. The court
acknowledged that the hospital raised the defense for the first
time in its motion for summary judgment but explained that
since this defense is not expressly listed in Federal Rule of
Civil Procedure 8(c), “it is not clear that failure to assert it in
the answer waives it.” 236 F. Supp. 3d at 1101. That rationale
will not hold water here. Precedent offers sufficiently clear
guidance on when defenses not enumerated in Rule 8(c) must
No. 17‐1469 11
be pleaded. See, e.g., Gomez v. Toledo, 446 U.S. 635, 640–41
(1980); Winforge, Inc. v. Coachmen Industries, Inc., 691 F.3d 856,
872 (7th Cir. 2012); Sundstrand Corp. v. Standard Kollsman Industries,
Inc., 488 F.2d 807, 813 (7th Cir. 1973); Brunswick Leasing
Corp. v. Wisconsin Cent., Ltd., 136 F.3d 521, 530 (7th Cir.
1998). The statutory exemption here is based on facts in a defendant’s
control and clearly falls within the category of affirmative
defenses.
The district court also held that Reed was not prejudiced
by the hospital’s delay in asserting this defense. For support,
the court relied on an exchange during the deposition of nursing
supervisor William Fry in February 2016, six months before
the close of discovery, to find that Reed knew “for a substantial
period that the religious exemption defense was a
possibility.” Reed, 236 F. Supp. 3d at 1101. We respectfully disagree.
Here is the entire discussion from Fry’s deposition:
Q And so who – what is your understanding of
the ownership of Columbia St. Mary’s Hospital
Milwaukee?
MR. FOLEY: Object to form and foundation.
THE WITNESS: I don’t really know the answer
to that. I don’t really understand – I don’t know
the answer to that.
BY MS. BARNES: Who owns the organization?
MR. FOLEY: Object to form and foundation.
THE WITNESS: I’ll try to answer that. Ascension
Healthcare is our parent sponsor of this
ministry.
12 No. 17‐1469
BY MS. BARNES: What does that mean, sponsor?
MR. FOLEY: Object to form.
THE WITNESS: Ascension Healthcare has multiple
hospitals in multiple states across the
country. That is, again, our – as far as I understand
it, our parent ownership structure.
BY MS. BARNES: Okay. And is Ascension a religious
organization?
A Yes.
Q What type of religious organization?
A It’s a mission of the Roman Catholic Church.
Q A mission?
A Um‐hum.
Q So is it – is it –
A A ministry, I should have said. I ministry of
the Roman Catholic Church.
Q So is it – does it follow the principles of the
Catholic church, when you say “ministry”?
MR. FOLEY: I’ll object to form and foundation.
I think this is far afield of –
THE WITNESS: Yeah, this is beyond my
knowledge and expertise.
MR. FOLEY: – his knowledge. But if you can answer,
go ahead.
No. 17‐1469 13
THE WITNESS: As far as I know, yes. I guess I
don’t really understand the question.
BY MS. BARNES: What does it mean to be a
ministry, I guess? I’m trying to understand it as
well.
A Well, we’re a not for profit in the ministry of
providing healthcare.
Fry Dep. at 13–15.
This brief exchange was with a witness who obviously did
not understand the issue or identify the exemption, let alone
try to assert the exemption. It is not comparable to a lawyer’s
statement that the party intends to assert a defense. The exchange
did not put Reed on fair notice that the hospital would
be asserting the religious exemption and that she needed to
spend the time and money to conduct full‐bore discovery on
whether the hospital could satisfy the ADA’s religious exemption.
The district court also thought that Reed knew when she
filed suit that the hospital was at least nominally associated
with the Catholic faith. Nominal association told plaintiff and
tells us nothing about the availability of the religious exemption.
The statutory test is “control.” 42 U.S.C. § 12187. Countless
entities have names that are associated with religions but
are not subject to religious control.
Finally, the district court noted that Reed’s response to the
hospital’s motion for summary judgment showed that she
had studied the hospital’s corporate structure and governing
documents (or at least those submitted by the hospital). We
14 No. 17‐1469
have a limited record before us on this issue.2 The structure
appears to be as follows: the hospital’s sole corporate member
is Columbia St. Mary’s Inc. In turn, Columbia St. Mary’s Inc.
is “sponsored by” its two corporate members: Ascension
Health (a Catholic national health system) and Columbia
Health System, Inc. (a non‐sectarian community health system).
Ascension Health is a subsidiary of Ascension Health
Alliance, which is a subsidiary of Ascension Health Ministries.
The Congregation of Consecrated Life and Societies of
Apostolic Life of the Vatican conferred public juridic personality
on Ascension Health Ministries in June 2011. Ascension
Health Ministries’ governing documents state that it shall be
governed in accordance with canon law. Thus, the hospital is
subject to two lines of control: (1) a Catholic one (Ascension
Health Ministries —> Ascension Health Alliance —> Ascension
Health —> Columbia St. Mary’s Inc. —> the hospital);
and (2) a non‐sectarian one (Columbia Health System —> Columbia
St. Mary’s Inc. —> the hospital).
The hospital’s bylaws reflect these two lines of control:
they say that the hospital “shall be and remain a Catholic facility
or institution” but also that the hospital will “respect the
nonsectarian traditions and values of Columbia Health System.”
Similarly reflecting these two lines of control but reversing
the emphasis, the bylaws of Columbia St. Mary’s Inc. (the
hospital’s sole corporate member) say that it “shall not be a
Catholic facility or institution” but that it will not perform
2 The record is limited since this defense was sprung on Reed in the
motion for summary judgment. Most of the relevant evidence comes from
the documents the hospital chose to submit. Even those documents show
a complicated corporate legal structure and an ambiguous relationship
with the hospital’s Catholic affiliates.
No. 17‐1469 15
medical procedures inconsistent with Catholic ethical directives.
Columbia St. Mary’s Inc.’s bylaws reserve certain powers
to both Ascension Health and Columbia Health System.3
Columbia St. Mary’s Inc.’s officers and board members “serve
ex officio” as the hospital’s officers and board members. Important
for the issue of control, the board members are recommended
by Columbia St. Mary’s Inc.’s existing board for appointment
by Ascension Health and are intended to “be
broadly representative of the communities served.” Relying
on this corporate structure as disclosed by the hospital in its
summary judgment materials, the district court determined
that the hospital was sufficiently controlled by the Catholic
Church as to fall within Title III’s religious exemption and to
make it immune to Reed’s ADA claims.
4. Abuse of Discretion
We express no opinion on whether, after full discovery
and fair litigation of the issue on a more complete record, the
hospital might fit within the exemption for entities controlled
by religious organizations. Instead, we find that the district
court abused its discretion by considering this affirmative defense
at all.
Several factors point in this direction. First, the defendant
hospital has offered no excuse or explanation for failing to
plead the defense in it answers or for raising the defense so
late. Without a credible excuse for the delay, the hospital’s late
invocation of the defense looks like a straight ambush of the
plaintiff when it was too late for her to put together a
3 We are told that these dual lines of control are also detailed in the
terms of an Affiliation Agreement, but that document has not been produced
to Reed or included in the record.
16 No. 17‐1469
comprehensive rebuttal. Second, the religious‐exemption defense
should not ordinarily depend on discovery from the
plaintiff, as will often be the case with other affirmative defenses
such as statutes of limitations, estoppels, waivers, and
others. Instead, the religious‐exemption defense will ordinarily
depend on facts within the knowledge and control of the
defendant itself. Third, the defendant did not deploy this defense
until after discovery had closed, meaning both parties
had already invested a good deal of time and money in the
case on the legitimate expectation that they knew what the issues
were. Allowing a last‐minute defense that introduces
such new factual and legal issues after discovery has closed
raises the costs of litigation and allows the party that was at
least negligent in failing to plead its defense to take unfair advantage
of its opposing party. Fourth, the district court’s rationale
for allowing the defense to be raised so late simply
does not withstand scrutiny. In this case, a few facts relevant
to this potential affirmative defense came up briefly in one
deposition. As we explained above, that cannot be reasonably
treated as fair notice that the hospital would actually assert
the defense and that the plaintiff would need to spend the
time and money needed to meet that defense. The plaintiff
was entitled to rely on Rule 8(c) and the hospital’s silence in
its pleadings.
The situation here is similar to that in Venters v. City of Delphi,
where we concluded that the defendants waived their
statute of limitations affirmative defense. 123 F.3d 956, 967–69
(7th Cir. 1997). There, the defendants failed to include the defense
in their answers to the original and amended complaints.
We could “discern no justification for the delay” when
they asserted the defense for the first time in their reply memorandum
in support of their motion for summary judgment.
No. 17‐1469 17
Id. at 968. While a difference here is that Reed was at least
given notice of the defense in the motion for summary judgment
itself and could attempt to respond, she was still at a
serious disadvantage. That notice came after the parties had
completed discovery. As in Venters, we “cannot overlook the
failure to comply with Rule 8(c) in this context. Intentionally
or not, [plaintiff] was bushwacked.” Id. at 969. Put simply, “it
was not [plaintiff’s] obligation to raise the defense, and if Rule
8(c) is not to become a nullity, we must not countenance attempts
to invoke such defenses at the eleventh hour, without
excuse and without adequate notice to the plaintiff.” Id.4
Finally, the prejudice to Reed from the delayed assertion
of the defense is especially acute here because the relevant law
and facts simply are not clear. The ADA does not define what
it means to be considered a “religious organization” or to be
“controlled by a religious organization.” See 42 U.S.C. §
12187. To our knowledge, no federal appellate court has yet
construed this religious exemption. Several district courts
have—including the veteran judge who decided this case.
See Rose v. Cahee, 727 F. Supp. 2d 728, 747 (E.D. Wis. 2010).5
4 In contrast, we held that a district court did not abuse its discretion
in Robinson v. Sappington when it allowed the defendants to amend their
pleadings at summary judgment to add affirmative defenses. 351 F.3d 317,
332–33 (7th Cir. 2003). There, the record showed that the plaintiff had sufficient
notice that the defendants might pursue the defenses because defense
counsel had explored them in detail during discovery. Id. Further,
the plaintiff did not suggest she was prejudiced in any way by the late
amendment. Id.
5 In Rose, the court applied the religious exemption where a Roman
Catholic institute sponsored a healthcare corporation and occupied a primary
role in the corporation’s corporate governance structure, the institute
members made up the entirety of one class of corporate membership,
18 No. 17‐1469
These district court decisions show that the issue can be complex,
both factually and legally. These decisions have cited
and relied on the following Department of Justice interpretation
of the religious exemption:
The ADA’s exemption of religious organizations
and religious entities controlled by religious
organizations is very broad, encompassing
a wide variety of situations. Religious organizations
and entities controlled by religious
organizations have no obligations under the
ADA. Even when a religious organization carries
out activities that would otherwise make it
a public accommodation, the religious organization
is exempt from ADA coverage. Thus, if a
church itself operates a day care center, a
and the institute’s class members had the sole authority to amend or repeal
the corporation’s articles of incorporation and bylaws. 727 F. Supp.
2d at 747. As for the other district court cases applying the exemption,
Reed correctly points out that in none was the defense raised late, and in
all there was greater evidence of religious control. See Cole v. Saint Francis
Medical Ctr., No. 1:15‐CV‐98(ACL), 2016 WL 7474988, at *4‐6 (E.D. Mo.
Dec. 29, 2016) (exemption was “properly raised by Defendant as an affirmative
defense” and hospital was “under the jurisdiction of the Bishop of
the Roman Catholic Dioceses[.]”); Marshall v. Sisters of the Holy Family of
Nazareth, 399 F. Supp. 2d 597, 606 (E.D. Pa. 2005) (school “solely operated
and controlled by” order of nuns); White v. Denver Seminary, 157 F. Supp.
2d 1171, 1173–74 (D. Colo. 2001) (seminary was founded by Baptist association
and employees were required to be active Christians). By contrast,
in Sloan v. Community Christian Day School, LLC, a Christian school was
found to not be exempt since the school was not owned, affiliated with, or
financially supported by any recognized religious group and was instead
owned by two individuals who were not ministers. No. 3–15–0551, 2015
WL 10437824, at * 3, (M.D. Tenn. Dec. 11, 2015).
No. 17‐1469 19
nursing home, a private school, or a diocesan
school system, the operations of the center,
home, school, or schools would not be subject to
the requirements of the ADA or this part. The
religious entity would not lose its exemption
merely because the services provided were
open to the general public. The test is whether
the church or other religious organization operates
the public accommodation, not which individuals
receive the public accommodationʹs services.
Religious entities that are controlled by religious
organizations are also exempt from the
ADA’s requirements. Many religious organizations
in the United States use lay boards and
other secular or corporate mechanisms to operate
schools and an array of social services. The
use of a lay board or other mechanism does not
itself remove the ADA’s religious exemption.
Thus, a parochial school, having religious doctrine
in its curriculum and sponsored by a religious
order, could be exempt either as a religious
organization or as an entity controlled by
a religious organization, even if it has a lay
board. The test remains a factual one – whether the
church or other religious organization controls the
operations of the school or of the service or whether
the school or service is itself a religious organization.
28 C.F.R. ch. 1., pt. 36, App’x C (emphasis added).
For this appeal, the critical points are that the law governing
the hospital’s affirmative defense is still highly contestable
20 No. 17‐1469
and its application may well depend on a host of facts that
would need to be explored in some depth. Before summary
judgment briefing, plaintiff Reed had no notice that she
needed to prepare to meet the defense.
We have considered the possibility of a response less drastic
than treating the hospital’s religious‐exemption defense as
forfeited. One possibility would be to allow the parties to pursue
further discovery on that issue and to have the hospital
pay for plaintiff’s reasonable costs and attorney fees for that
process. In this case, however, the hospital has offered no
credible excuse for its delay, and the normal rule is forfeiture
of unpleaded defenses. The remedy of reopening discovery
would also impose additional delay on Reed. We see no mitigating
factors here that would favor anything other than enforcement
of Rule 8(c) as written and treating the defense as
forfeited. We therefore reverse summary judgment for the
hospital on the ADA claims.
B. Rehabilitation Act Claims
1. Legal Standard
We now turn to the merits of Reed’s Rehabilitation Act
claims. Section 504 of the Rehabilitation Act provides: “No
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
financial assistance[.]” 29 U.S.C. § 794(a). Four elements
must be satisfied to establish a violation of Section 504: (1) the
plaintiff must be a handicapped individual as defined by the
Act; (2) the plaintiff must be “otherwise qualified” for participation
in the program; (3) the program must receive federal
No. 17‐1469 21
financial assistance; and (4) the plaintiff must have been “denied
the benefits of the program solely because of his handicap.”
See Mallet v. Wisconsin Div. of Vocational Rehabilitation,
130 F.3d 1245, 1257 (7th Cir. 1997). The hospital contests only
this fourth element of sole cause. The ADA and the Rehabilitation
Act are otherwise very similar, but the Rehabilitation
Act prohibits discrimination only if it is “solely by reason of”
a person’s disability. The ADA permits mixed‐motive claims.
See Whitaker v. Wisconsin Dep’t of Health Servs., 849 F.3d 681,
684 (7th Cir. 2017).
A plaintiff suing under the Rehabilitation Act can assert
that she was intentionally discriminated against or that the
defendant failed to afford her a reasonable accommodation
for her disability. The Rehabilitation Act does not contain an
explicit accommodation requirement, but the Supreme Court
has located a duty to accommodate in the statute generally.
We have written that in Alexander v. Choate, 469 U.S. 287
(1985),
the Court explained that “‘a refusal to modify
an existing program might become unreasonable
and discriminatory.’” Id. at 300 (quoting
Southeastern Cmty. Coll. v. Davis, 442 U.S. 397,
413 (1979)). The Rehabilitation Act’s promise of
“meaningful access” to state benefits, according
to the Court, means that “reasonable accommodations
in the grantee’s program or benefit may
have to be made.” Id. at 301.
Wisconsin Community Services, Inc. v. City of Milwaukee, 465
F.3d 737, 747 (7th Cir. 2006). We explained further:
22 No. 17‐1469
Following Choate, several courts of appeals have
adopted the view that the Rehabilitation Act requires
public entities to modify federally assisted
programs if such a modification is necessary
to ensure that the disabled have equal access
to the benefits of that program. See, e.g.,
Henrietta D. v. Bloomberg, 331 F.3d 261, 274–75
(2d Cir. 2003). These circuits, including ours,
also follow the corollary principle implicit in the
Choate decision that the Rehabilitation Act helps
disabled individuals obtain access to benefits
only when they would have difficulty obtaining
those benefits “by reason of” their disabilities,
and not because of some quality that they share
generally with the public.
Id. at 748.
2. Analysis of the Rehabilitation Act Claims
We review de novo the district court’s grant of summary
judgment on the merits. Whitaker, 849 F.3d at 684. Summary
judgment is proper when the moving party shows that there
is no genuine dispute as to any material fact and that it is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a).
We reverse the dismissal of Reed’s intentional discrimination
claim, which is based only on the seclusion‐room incident.
The district court determined that the undisputed facts
show that the “seclusion incident” was motivated at least in
part by factors other than Reed’s disability. The court stated
that Reed “admits that she spilled her coffee and thereafter
fell to the floor screaming. She further concedes that Miller
No. 17‐1469 23
told her that she could not remain on the floor in the middle
of the hallway. (Docket # 55 ¶ 43).” Reed, 236 F. Supp. at 1106.
The district court either misconstrued or exaggerated
Reed’s concessions. Reed has not conceded any of the reasons
Miller cited for taking her to the seclusion room. The district
court did not include a record citation for its assertion that
Reed admitted she fell to the floor “screaming.” We have not
seen such an admission in the record. Reed admits that she
spilled coffee and was on the floor of the hallway. She specifically
denies she was screaming. See Dkt. 55, ¶¶ 38–45, citing
Reed Affidavit, Ex. A, Dkt. 55‐26. According to the district
court, this disturbance at least partially motivated the hospital
staff to put her in seclusion.
The undisputed facts show that Reed spilled coffee on herself
and was on the floor of the hallway. We agree with the
district court that Miller was responding to this situation (and
not solely to Reed’s disabilities) when he picked her up off the
floor. So far, so good. But Miller himself testified that, at that
point, he started to take Reed back to her own room (not the
seclusion room). It was only during the walk to her room that,
because of her screaming, the decision was made to take her
to the seclusion room. Thus, a jury could find that nothing
Reed has conceded (spilling coffee and lying on the floor) led
Miller to take her to the seclusion room. Spilling the coffee
and lying on the floor prompted Miller only to take Reed back
to her own room. It was the action that Reed specifically denies
(screaming during the walk) that Miller says led him and
Fry to take Reed to the seclusion room. Reed has not conceded
that she did anything disruptive during the walk to her room,
when hospital staff decided to take her to the seclusion room.
The material facts that led to her being placed in seclusion are
24 No. 17‐1469
disputed. Crediting Reed’s version of the event, a reasonable
jury could find that the hospital intentionally discriminated
against Reed solely on the basis of her disability.6
We also reverse the dismissal of Reed’s reasonable accommodation
claim. This claim is based on all of the allegations
Reed asserts in her complaint (seclusion‐room incident; withholding
Dynavox; security escort off the premises; and denial
of requests to use telephone, to see a chaplain, and to see medical
records). While medical professionals certainly are entitled
to discretion in managing their patients, the hospital has
not argued that it withheld the Dynavox in the exercise of professional
judgment to treat Reed’s mental illness. Withholding
the Dynavox in particular may support a viable failure‐to‐
6 The parties have not addressed another issue that may arise on remand.
The Rehabilitation Act and the Americans with Disabilities Act do
not create a remedy for medical malpractice. See Grzan v. Charter Hosp.,
104 F.3d 116, 122–23 (7th Cir. 1997), abrogated on other grounds as stated
in Amundson v. Wisc. Dep’t of Health Svcs., 721 F.3d 871, 874 (7th Cir. 2013);
Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (prisoner’s claim); accord,
e.g., McGugan v. Aldana‐Bernier, 752 F.3d 224, 231–32 (2d Cir. 2014);
Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005); Schiavo ex rel. Schindler
v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005); Fitzgerald v. Corrections Corp.
of America, 403 F.3d 1134, 1144 (10th Cir. 2005). As the Second Circuit explained
in McGugan, the term “discrimination” can have a benign (and
perfectly lawful) sense, in which a health care provider makes a discriminating
professional judgment about the type of treatment to provide to a
patient, but can also have a pejorative sense that describes actions taken
based on irrelevant criteria under the influence of irrational bias. See 752
F.3d at 231–32, comparing United States v. University Hosp., 729 F.2d 144,
156 (2d Cir. 1984), and Green v. City of New York, 465 F.3d 65, 78 (2d Cir.
2006). In this appeal, the hospital has not argued that it withheld Reed’s
Dynavox from her as a benign form of discrimination, i.e., as an exercise
of medical judgment for her appropriate treatment.
No. 17‐1469 25
accommodate claim under the Rehabilitation Act, subject to
the considerations discussed above in note 6.

Outcome: The district court’s grant of summary judgment in favor of
the hospital is REVERSED and the case is REMANDED for
proceedings consistent with this opinion. On remand, Circuit
Rule 36 shall apply.

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