915 F.3d 473 (7th Cir. 2019), 17-1469, Reed v. Columbia St. Mary’s Hospital

Docket Nº:17-1469
Citation:915 F.3d 473
Opinion Judge:Hamilton, Circuit Judge.
Party Name:Linda REED, Plaintiff-Appellant, v. COLUMBIA ST. MARY’S HOSPITAL, Defendant-Appellee.
Attorney:William J. Cooper, Attorney, MoloLamken LLP, Washington, DC, Gerald Meyer, Justin Weiner, Attorneys, MoloLamken LLP, Chicago, IL, for Plaintiff-Appellant. Bradley S. Foley, Attorney, Gutglass, Erickson, Bonville & Larson, S.C., Milwaukee, WI, for Defendant-Appellee.
Judge Panel:Before Easterbrook, Rovner, and Hamilton, Circuit Judges.
Case Date:February 08, 2019
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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915 F.3d 473 (7th Cir. 2019)

Linda REED, Plaintiff-Appellant,



No. 17-1469

United States Court of Appeals, Seventh Circuit

February 8, 2019

Argued September 12, 2018

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[Copyrighted Material Omitted]

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

William J. Cooper, Attorney, MoloLamken LLP, Washington, DC, Gerald Meyer, Justin Weiner, Attorneys, MoloLamken LLP, Chicago, IL, for Plaintiff-Appellant.

Bradley S. Foley, Attorney, Gutglass, Erickson, Bonville & Larson, S.C., Milwaukee, WI, for Defendant-Appellee.

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.

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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 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.

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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).


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