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Reed v. Columbia St. Mary's Hospital

United States Court of Appeals, Seventh Circuit

February 8, 2019

Linda Reed, Plaintiff-Appellant,
v.
Columbia St. Mary's Hospital, Defendant-Appellee.

          Argued September 12, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-CV-330 - J.P. Stadtmueller, Judge.

          Before Easterbrook, Rovner, and Hamilton, Circuit Judges.

          HAMILTON, CIRCUIT JUDGE.

         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 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 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 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 re- view 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 with- out 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, 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 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 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." Garofalo v. Village of Hazel Crest, 754 F.3d 428, 436 (7th Cir. 2014), citing Mathews 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 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 ...


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