LOYE v. County of Dakota

• Decision Date: 17 November 2010
• Docket Number: No. 09-3277.,09-3277.
• Citation: 625 F.3d 494
• Parties: Kevin LOYE; Gina Gist; Vikki Marshall; David Stiles, Plaintiffs-Appellants, v. COUNTY OF DAKOTA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

625 F.3d 494

Kevin LOYE; Gina Gist; Vikki Marshall; David Stiles, Plaintiffs-Appellants,

v.COUNTY OF DAKOTA, Defendant-Appellee.

No. 09-3277.

United States Court of Appeals,Eighth Circuit.

Submitted: June 16, 2010.

Filed: Nov. 17, 2010.

Kay Nord Hunt, argued, Roderick J. Macpherson, III, and Justin Merak Page, on the brief, Minneapolis, MN, for appellant.

Kathryn Keena, argued, Andrea Gail White, on the brief, Hastings, MN, for appellee.

Before LOKEN, ARNOLD, and GRUENDER, Circuit Judges.

LOKEN, Circuit Judge.

On the afternoon of September 6, 2004, boys stole two bottles of mercury from an abandoned building, took this hazardous substance to a playground near the Rosemount Woods mobile home park, and released it while playing. Before police from the City of Rosemount, Minnesota were notified and arrived at the scene, people, homes, and vehicles were contaminated. Police officers knocked on doors to identify those who had been exposed, and the City contacted state and local agencies to help deal with the environmental and public health emergency. The Special Operations Team (SOT), a disaster response unit created by an agreement between Dakota County and eleven cities including Rosemount, arrived at about 9:00 p.m. and set up a decontamination tent. Shortly after 11:00 p.m., the SOT began decontaminating forty-nine persons who had been exposed to mercury, including Kevin Loye, Gina Gist, Vikki Marshall, and David Stiles, who are deaf. The next day, nurses from the Dakota County Department of Public Health began attending to the victims' health, housing, and financial needs. The victims were provided temporary housing while their quarantined homes were decontaminated. By the end of the month, the health and environmental hazards were successfully abated.

One year later, Loye, Gist, Marshall, and Stiles filed Charges of Discrimination with the Minnesota Department of Human Rights alleging that Dakota County, the City of Rosemount, the State of Minnesota, and the American Red Cross violated the Minnesota Human Rights Act (“MHRA”) when they “failed to provide ASL [American Sign Language] interpreters ... for all of the services they were providing to the public.” In December 2006, the Department issued “No Probable Cause” determinations dismissing the charges against Dakota County. Loye, Gist, Marshall, and Stiles (collectively, “Plaintiffs”) then filed this action in federal court, alleging that the County's failure to provide ASL interpreters violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794; and the MHRA, Minn.Stat. § 363A.12. Two years later, they sued the City, the State, and the American Red Cross in state court asserting the same MHRA claims and alleging that the Department of Human Rights found probable cause to support the charges against these respondents.

At the close of discovery, the district court ¹ granted Dakota County's motion for summary judgment, concluding that Plaintiffs received effective communication, and therefore meaningful access to the programs and services offered during three relevant periods: (1) the emergency decontamination process; (2) public group meetings between victims and representatives of various government agencies conducted the following week; and (3) additional private meetings between Dakota County Public Health Nurse Gerilee Greeley and individual plaintiffs. Loye v. County of Dakota, 647 F.Supp.2d 1081, 1090, 1092, 1094, 1095 (D.Minn.2009). Plaintiffs appeal. Reviewing the grant of summary judgment de novo, we affirm. Randolph v. Rodgers, 170 F.3d 850, 856 (8th Cir.1999) (standard of review).

I. The Decontamination Process.

[1] [2] [3] Plaintiffs argue that Dakota County violated the ADA, the RA, and the MHRA by failing to provide interpreters when Plaintiffs were decontaminated by the SOT on the night of September 6. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.” 42 U.S.C. § 12132. As relevant here, the substantive standards of § 504 of the RA and the ADA are the same. See 42 U.S.C. § 12133; Gorman v. Bartch, 152 F.3d 907, 911-12 (8th Cir.1998). ² The parties agree that Plaintiffs are qualified individuals with a disability and that Dakota County is a public entity. Although the County was not responsible for the mercury contamination, the governmental effort to decontaminate the victims of that emergency was, without question, a service to which the requirements of § 12132 applied. See Randolph, 170 F.3d at 858. Consistent with the Supreme Court's interpretation of the RA in Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), we construe Title II of the ADA as requiring that qualified persons with disabilities receive “meaningful access” to a public entity's services, not merely “limited participation.” Randolph, 170 F.3d at 858. Depending on the circumstances, this may require the use of “auxiliary aids and services,” such as interpreters for the hearing impaired. See Mason v. Corr. Med. Servs., Inc., 559 F.3d 880, 886 (8th Cir.2009), applying 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104(2).

Plaintiff Marshall was interviewed by Rosemount police at the playground at 6:30 p.m. on September 6. Her son had played with the mercury, and the miscreant boys had poured mercury in her eight-year-old daughter Cassie's hair. Marshall became contaminated when she comforted Cassie. She told the officers she was deaf and asked for an interpreter. The home of Plaintiffs Loye and Gist became one of the most contaminated when the boys brought the jars of mercury to the residence and spilled some. Loye and his son Cory touched the unknown substance. A police officer came to the residence and wrote “mercury” when Loye said he was deaf. Loye misunderstood the message and told Gist that someone had been molested.

Beginning at 11:00 p.m., each family identified as needing decontamination entered the SOT's tent (sequentially, not all at once). Once inside, they removed their clothes and jewelry and were sprayed and brush scrubbed with soap and water. They were then given suits or blankets to cover themselves and boarded a bus that took them to a hotel shelter the American Red Cross had arranged. As no interpreter was present, the SOT communicated with those who were deaf by gesturing, lip reading, writing, and limited sign language. Marshall's household included her two children, then-fiancé Jeff Beaman, a hearing person, and Stiles, who was visiting. This family was among the first to be decontaminated because Cassie was the most seriously contaminated victim. After decontamination, Marshall accompanied Cassie to a local hospital for testing and treatment. Plaintiffs Loye and Gist and their three-year-old son were the last to be decontaminated. All Plaintiffs were understandably confused and afraid throughout the harrowing decontamination process.

In granting summary judgment on this claim, the district court focused on the SOT's services “during the emergency midnight decontamination.” The court concluded that the ADA did not require “delay in protecting the public or in ameliorating such a danger,” that it was not reasonable to require the emergency responders to come equipped with a full-time interpreter, and that Plaintiffs' ability to follow directions and complete the successful decontamination demonstrated that, despite the absence of interpreters, “[t]he communications were effective.” Loye, 647 F.Supp.2d at 1088-89.

On appeal, Plaintiffs argue that they first asked the police for interpreters hours before the decontamination began, so the district court erred because no delay in handling the emergency would have occurred had interpreters been timely provided. ³ To consider this contention requires a more detailed look at the chronology of events on the night of September 6. Rosemount Police responded to the report of a suspicious substance at 6:30 p.m. Police Sergeant Erickson and Assistant Fire Chief Haeg were the City's incident commanders at the scene. They requested SOT assistance at 9:00 p.m. SOT members arrived with their equipment at about 9:20 p.m. It is undisputed that (i) the SOT performed decontamination tasks assigned by the incident commanders, (ii) no SOT member had contact with contamination victims, including Plaintiffs, until they were brought to the SOT tent to be decontaminated, and (iii) Dakota County had no responsibilities (or even presence) on September 6 other than the SOT. ⁴

Given Dakota County's lack of overall responsibility or involvement other than that of the SOT, Plaintiffs are forced to contend that Dakota County is liable for the failure of City of Rosemount police officers and incident commanders to have interpreters available when the SOT decontaminated the victims later that night. Plaintiffs cite no authority supporting this theory of joint governmental liability. Perhaps it would be at issue if Plaintiffs had not split their claims and sued the other responding public entities in state court. But given the decision to split their claims, their liability-without-fault theory in this case raises, as the district court noted, the spectre of double damage recoveries. Therefore, on this record, while we have little doubt that Plaintiffs had need of interpreters when the emergency decontamination services began, they failed to prove that the County was responsible for interpreters not being present. The SOT's services began when Plaintiffs were brought to the decontamination tent. Viewing the situation at that point in time, we agree with the district court that the means of communication SOT members then employed provided Plaintiffs with timely, meaningful access to the emergency decontamination services. See Mason, ...