Columbia v. Gregory, et a l . 08-CV-98-JD 09/09/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cindv Columbia

v. Civil No. 08-CV-98-JD Opinion No.

John B. Gregory. D.P.M., and Active Ankle & Foot Center. P.L.L.C.

O R D E R

Cindy Columbia, who is deaf, filed suit against John B.

Gregory, D.P.M., and Active Ankle & Foot Center, P.L.L.C.,

alleging violations of Title III of the Americans with

Disabilities Act ("ADA") and Section 504 of the Rehabilitation

Act of 1973. Columbia alleges that when she sought treatment at

the Center, the Center and Gregory provided an American Sign

Language ("ASL") interpreter for one visit but refused to provide

an interpreter thereafter and then refused to treat her.

Columbia seeks a declaration that Gregory and the Center violated

the ADA and Section 504, an injunction to require Gregory and the

Center to treat her and to provide ASL interpreter services, and

compensatory damages.

Instead of filing an answer, the defendants filed

"Defendants' Motion To Dismiss and/or Motion for Summary

Judgment." An ECF filing error was docketed, noting that the defendants had improperly combined multiple motions and that the

motion was accepted as a motion to dismiss. Columbia filed an

objection and an assented-to motion for clarification as to

whether the defendants' motion was to be treated as a motion to

dismiss or a motion for summary judgment. The court granted

Columbia's motion for clarification and converted the defendants'

motion to a motion for summary judgment because it relied on

materials extrinsic to the complaint. Columbia was given an

opportunity to respond to the motion as one for summary judgment,

and she has now filed an objection.

Standard of Review

Summary judgment is appropriate when "the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). The party seeking summary judgment must

first demonstrate the absence of a genuine issue of material fact

in the record. See Celotex Corp. v. Catrett,

(1986). To avoid summary judgment, an opposing party must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby. Inc..

,

2 256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See i d . at 255.

Background

Columbia lives in Claremont, New Hampshire. Because of her

deafness, Columbia's primary language is ASL. She has difficulty

communicating in writing. Gregory is a Doctor of Podiatric

Medicine who specializes in ankle and foot surgery. He is in

private practice at the Center, with offices in Claremont and

Lebanon, New Hampshire.

In July of 2007, Columbia made an appointment with Gregory

because of a painful bone spur on her heel. No ASL interpreter

was present during the first appointment, and because of the

difficulties in communication, they scheduled a second

appointment on August 8, 2007, with an ASL interpreter present.

They agreed that surgery was necessary, which was scheduled for

October 25, 2007.

On October 16, Columbia and her husband went to the Center

because she had questions about the preoperative instructions.

She was handed a letter, dated October 12, 2007, from Gregory in

which he said that an ASL interpreter would only be present if

there were a complication that required more than ordinary

postoperative care and that otherwise communication could be

3 accomplished in writing and through family members. He stated

that if she agreed, he would mail her detailed written

postoperative descriptions but if she disagreed, he would refer

her to a physician at Dartmouth Medical Center.

Columbia sought help from the Disabilities Rights Center

("DRC"). An attorney from the DRC sent Gregory a letter on

October 24, 2007, stating that Columbia was a qualified

individual with a disability under Title III of the ADA and

Section 504 of the Rehabilitation Act and that those statutes

required that a qualified sign language interpreter be provided

when necessary to allow her to communicate effectively. The same

day, Gregory sent Columbia a letter "to clarify the termination

of our patient-doctor relationship." He explained that he was

cancelling Columbia's surgery "because there has been absolutely

no clear communication returned from your end." He recommended

alternative physicians to treat her, offered to contact them on

her behalf, and said that he would forward her medical records

wherever necessary.

Columbia, who is represented by an attorney from the DRC,

filed suit on March 14, 2008. Thereafter, Gregory resumed

treatment of Columbia, with an ASL interpreter present during all

visits and treatment. This summer, Columbia underwent surgery

for the bone spur and is now in postoperative care. Gregory

4 states in his affidavit that he "agreed to reinstate the doctor-

patient relationship with Plaintiff, begin treating her again,

and provide an ASL certified interpreter to Plaintiff during any

scheduled medical visits with me where treatment will be

discussed or provided."

Discussion

Gregory and the Center move for summary judgment, contending

that Columbia's ADA claim is moot and that they were not required

to provide an ASL interpreter under Section 504 because the

Center employs fewer than fifteen people. Columbia objects,

contending that the defendants' decision to treat her does not

ensure their future conduct and that Section 504 applies to the

defendants.

A. Is the ADA Claim Moot?

Gregory and the Center contend that Columbia's claim for

injunctive relief under Title III of the ADA is moot because they

are providing the treatment she needs and have and will continue

to provide the services of an ASL interpreter during her

treatment. As a result, they argue, Columbia has achieved what

she sought in bringing her ADA claim. Columbia counters that

although she is now being treated by Gregory and the Center with

5 an ASL interpreter, nothing would prevent the defendants from

denying her an interpreter or denying her treatment altogether in

the future.

In general, "voluntary cessation of allegedly illegal

conduct . . . does not make the case moot" because "[t]he

defendant is free to return to his old ways." United States v.

W .T . Grant C o .,

(1953). In addition, a public

interest exists "in having the legality of the practices

settled."

Therefore, voluntary cessation will render a

dispute moot only when "(1) it can be said with assurance that

there is no reasonable expectation that the alleged violation

will recur, and (2) interim relief or events have completely and

irrevocably eradicated the effects of the alleged violation."

Los Angeles County v. Davis.

(1979) (internal

quotation marks omitted). The defendant bears a "formidable

burden to show that the challenged conduct could not reasonably

be expected to recur." Mendez-Soto v. Rodriquez.

(1st C i r . 2006) .

Columbia states that she is still receiving treatment from

Gregory at the Center, that she anticipates treatment to

continue, and that she may require other treatment there for

herself or family members in the future. Although Gregory and

the Center are now providing an ASL interpreter for Columbia,

6 nothing has occurred that would prevent them from deciding not to

do so for future appointments. Therefore, the defendants have

not shown that Columbia's ADA claim is moot.

Although the claim has not been shown to be moot, there

appears to be little or no disagreement about the outcome. The

court previously directed counsel to use their best efforts to

resolve this case before expending the parties' and the court's

resources on further litigation. The issue of providing ASL

interpreters for continuing or future treatment of Columbia at

the Center can and should be addressed through settlement

discussions.

B. Rehabilitation Act

The defendants contend that they cannot be held liable under

Section 504 because they employ fewer than fifteen people.1 See

(d)(1). Columbia disagrees.

Section 504 of the Rehabilitation Act prohibits

discrimination as follows:

No otherwise qualified individual with a disability in the United States, as defined in section 705(2) of this title, shall, solely by reason of her or his

1The defendants do not dispute that they receive federal financial assistance from the Department of Health and Human Services or that Columbia is a qualified individual with a disability within the meaning of Section 504.

7 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 or under any program or activity conducted by any Executive agency . . . .

(a). The Office of Civil Rights ("OCR") of the

Department of Health and Human Services ("HHS") is authorized to

accept and investigate complaints of violations of Section 504 by

entities receiving financial assistance from that department.

. Section 504 also includes an implied private

cause of action with remedies, procedures, and rights that are

coextensive with those under Title VI of the Civil Rights Act of

1864. Barnes v. Gorman.

(2002).

Section 794(a) authorizes federal funding agencies to

promulgate necessary regulations for implementing the

Rehabilitation Act. While an implementing regulation cannot

create a private cause of action, a regulation that effectuates

or interprets rights created by the statute is enforceable

through a private action under the statute. Iverson v. City of

Boston.

(1st Cir. 2006) (interpreting

Alexander v. Sandoval.

(2001)). A

regulation is not privately enforceable if it "either forbids

conduct that the statute allows or imposes an obligation beyond

what the statute mandates." I d . at 101. In addition, a

regulation that merely states a general policy and does not implement particular rights or obligations is not privately

enforceable. Three Rivers Ctr. for Indep. Living. Inc. v.

Housing Auth. of Pittsburgh.

(3d Cir. 2004).

The implementing regulations promulgated under the

Rehabilitation Act by HHS include a requirement that "[a]

recipient to which this subpart applies that employs fifteen or

more persons 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."2

(d)(1). Courts

have enforced § 84.52(d)(1) to require entities who employ more

than fifteen people to provide auxiliary aids under Section 504.

See Martin v. Ind. Heart Hosp., LLC, 2007 SL 1498882, at *4 (S.D.

Ind. 2007); Estate of Alcalde v. Deaton Specialty H o s p . Home.

Inc.,

(D. M d . 2001); Davis v. Flexman,

, 787 & n.5 (S.D. Ohio 1999). The First

Circuit enforced a similar regulation promulgated by the

Department of Justice under Section 504, requiring recipients who

employ fifteen or more persons to provide auxiliary aids to

handicapped persons,

(f). Nieves-Marguez v.

Puerto Rico.

(1st Cir. 2003).

2Auxiliary aids include interpreters for persons with impaired hearing.

(d)(3).

9 In addition, § 84,52(d)(2) states that HHS "may require

recipients with fewer than fifteen employees to provide auxiliary

aids where the provision of aids would not significantly impair

the ability of the recipient to provide its benefits or

services." As authorized by § 84.52(d)(2), HHS through its

Director of OCR announced in a notice dated December 6, 2000,

that, effective immediately:

the Office for Civil Rights (OCR) will require recipients with fewer than 15 employees to provide auxiliary aids where the provision of aids would not significantly impair the ability of the recipient to provide its benefits or services, and will investigate complaints against health and social services providers with fewer than 15 employees for failure to provide auxiliary aids to individuals with disabilities under Section 504.

(2000). The notice explained that "in the

interest of uniformity and consistent administration of law.

Section 5 0 4 's auxiliary aids requirement should be applied to

covered entities with fewer than 15 employees, as is the case

under the Americans with Disabilities Act of 1990."

It also

explained that OCR would enforce Section 504 with the

responsibilities provided by the notice "through procedures

provided for in the Section 504 regulations." I d . at 79369.

The December 6 notice does not explain its scope, and no

court appears to have addressed the legal effect of the December

10 6, 2000, notice.3 Gregory and the Center argue that the notice

may only be enforced by the OCR, and they state that the OCR has

not specifically required them to provide auxiliary aids.

Columbia insists that the notice imposes regulatory obligations

on small providers, like Gregory and the Center, which can be

enforced under Section 504 in a private cause of action.4

As presented, the issue appears to be whether the December 6

notice constitutes a binding legislative rule or merely a policy

statement by HHS.5 See Gen. Elec. Co. v. E.P.A.,

(D.C. Cir. 2002). That determination requires consideration

of factors that have not been briefed here. See Gen. Motors

3Columbia interprets Davis.

, to hold that "the only thing preventing a claim from being brought under 84.52(d)(2) was notice from the Director." Instead, the court stated in Davis that under § 84.52(d) the defendants were required to provide auxiliary aids if the clinic employed more than fifteen people and would be required to provide auxiliary aids if it employed fewer than fifteen people only "if the Department of Health and Human Services specifically required the Clinic to provide such aids." Id.

4Columbia also minimizes the impact of the fifteen-employee requirement, contending it applies only to one of her three claims under Section 504.

5The defendants appear to concede that the December 6 notice provides a binding rule that can be enforced by HHS's OCR but argue that the rule cannot be enforced through a private cause of action. They offer no authority to support their theory that a binding rule can only be enforced by the agency and not through a private cause of action under Section 504.

11 Corp. v. E.P.A.,

(D.C. Cir. 2004); Elizabeth

Blackwell Health Ctr. for Women v. Knoll.

, 188-89 (3d

Cir. 1995); Municipality of Anchorage v. United States.

(9th Cir. 1992). The court declines to engage in

the complex analysis necessary to determine the effect of the

December 6 notice in the absence of adequate briefing.

Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 6) is denied, without deciding the

issue of whether the December 6, 2000, notice is enforceable

through a private cause of action. That issue may be addressed,

if necessary, through a properly supported motion for summary

judgment.

The defendants shall file their answer within twenty days

from the date of this order.

This is an appropriate time for the parties to engage in

serious and good faith efforts to settle this case. To that end,

the parties may negotiate privately or use the mediation services

offered by the court. The parties, jointly, shall notify the

12 court about the status of their settlement efforts on or before

October 8 , 2008.

SO ORDERED.

v O J o s e p h A. DiClerico, Jr. United States District Judge

September 9 , 2008

cc: Catharine A. Mallison, Esquire Stephen J. Soule, Esquire

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