September 12, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 14-CV-330 - J.P. Stadtmueller,
Easterbrook, Rovner, and Hamilton, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
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.
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.
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.
Factual & Procedural Background
Reed's Stay in the Hospital
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).
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
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."
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.
The District Court Proceedings
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.
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.
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.
The ADA Claims
The Religious Exemption Defense Under ADA Title III
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. §
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.
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.
Consequences of Failure to Plead a Defense
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).
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
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).
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 ...