Mullen v. S. Denver Rehab., LLC

Decision Date20 May 2020
Docket NumberCivil Action No. 18-cv-01552-MEH
CourtU.S. District Court — District of Colorado

Michael E. Hegarty, United States Magistrate Judge.

Before the Court are Defendants' Motion for Partial Summary Judgment (ECF 79) and Plaintiffs' Partial Motion for Summary Judgment Against Defendant South Denver Rehabilitation, LLC ("Orchard Park") (ECF 80). In this case, Plaintiffs have asserted claims under Section 504 of the Rehabilitation Act ("Rehab Act"), 29 U.S.C. § 794 et seq.; the Americans with Disabilities Act Amendment Act ("ADA"), 42 U.S.C. § 12181 et seq.; the Affordable Care Act ("ACA"), 42 U.S.C. § 18001 et seq.; the Colorado Anti-Discrimination Act ("CADA"), Colo. Rev. Stat. § 24-34-601 et seq.; and Colorado common law, for outrageous conduct. Defendants seek dismissal of Plaintiffs' claims against Clear Choice Health Care, LLC ("CCHC") and SBK Capital, LLC ("SBK") and all claims alleged by Deborah Johnson ("Johnson"). Plaintiffs seek judgment in their favor on all claims alleged against Orchard Park. For the following reasons, the Court will grant in part and deny in part Defendants' motion and deny Plaintiffs' motion.


With respect to each argument presented, the Court makes the following findings of fact viewed in the light most favorable to the non-moving party, recognizing that all parties in the case are both moving and nonmoving parties. Unless otherwise cited, these facts are undisputed.

1. Plaintiff Cynthia Mullen ("Mullen") is deaf. Her speech is not intelligible, and she can only make inarticulate sounds to get someone's attention. She can sometimes read lips.

2. Mullen's primary means, and preferred mode, of communication is American Sign Language ("ASL"). She learned ASL and reading in elementary school.

3. Mullen took a typing class in high school and had Math and English homework she completed at home and turned in at school the following day.

4. Mullen obtained driver's licenses in each state in which she has lived since the age of 16 (California, Oregon, and Colorado). At the age of 15, Mullen was required to take both written and driving tests to get her permit and license.

5. Mullen worked part time for the U.S. Postal Service until she became medically disabled by diabetes; she also worked at the State Hospital and at a fruit company in California.

6. Mullen reads and handles her own mail, and reviews, disputes, and pays her own bills, including medical bills. She has also leased apartments-in which she has lived on her own-and read, understood, and signed the leases.

7. Mullen has taught ASL to hearing persons by writing a word, then showing the person the sign for that word, and by using a "basic book of signs."

8. Mullen enjoys watching television and movies with closed captioning, coloring in coloring books, chatting on Facebook, and reviewing dating websites.

9. Mullen goes shopping, grocery shopping, to social events, to restaurants, to casinos, out of town on weekends, to festivals, to visit her grandchildren and her son, and to exercise.

10. Mullen is part of a women's social group that plays games, goes to restaurants, visits different people's houses, and has brunch and ice cream. The other members of the women's social group are hearing, and the group meets two to three times a month. Mullen communicates her attendance with the group via email. She has taught some women in the group how to sign.

11. Mullen likes to go to casinos in Blackhawk, Las Vegas, and Reno and has been playing Blackjack for many years.

12. Multiple doctors for whom Mullen is a patient have arranged for an ASL interpreter to be present at their appointments with Mullen.

13. Plaintiff Johnson, who is not disabled, has been Mullen's caregiver for approximately four years.

14. Mullen and Johnson met online and were in a romantic relationship for approximately ten years, partly during which Mullen was a resident at Orchard Park. They communicated in writing for approximately one to two months before they met in person. Mullen traveled from Denver, Colorado to Las Vegas, Nevada for their first face-to-face meeting. When they met in person, they continued to communicate in writing.

15. Currently, Mullen and Johnson are friends and roommates, and Johnson is Mullen's caregiver. Mullen eventually taught Johnson ASL and, now, that is their primary form of communication.

16. It took Johnson two to three months to learn from Mullen how to communicate the basics in ASL, and approximately six to nine months for Johnson to communicate with Mullen primarilyin ASL. Johnson also took ASL classes.

17. Johnson has attempted to provide interpretation for Mullen at several health care facilities when outside interpreters were not provided, although she is not certified as an ASL interpreter.

18. When they are not together, Mullen and Johnson communicate through texts. In addition, Johnson writes Mullen's appointments on Mullen's calendar and Mullen reads the appointments from the calendar.

19. Johnson interprets for Mullen at the women's social group. She has no special communication needs of her own.

20. Johnson claims she was discriminated against as Mullen's companion.

21. Defendant Orchard Park is a Georgia Limited Liability Company.

22. Orchard Park leases and operates Orchard Park Health Care Center, which is open to the public Monday through Sunday, twenty-four hours per day, and is located at 6005 S. Holly Street in Centennial, Colorado.

23. Orchard Park employs nurses, certified nursing assistants, occupational therapists, physical therapists, and administrative professionals, who make up more than fifteen individuals.

24. Physicians come to Orchard Park and provide medical services.

25. Orchard Park receives Medicare and Medicaid payments.

26. Mullen was a resident at Orchard Park from June 26, 2016 through September 11, 2016, and September 13, 2016 through November 4, 2016.

27. Mullen has heart disease, hypertension, and Type 2 Diabetes. On June 13, 2016, as a complication of her conditions, Mullen underwent surgery to amputate her right leg below the knee.

28. Phil Adair was the Marketing Director at Orchard Park and was the head of the admissionsoffice where he worked as a clinical liaison to potential residents in hospitals. Adair had two meetings with Mullen at Parker Adventist Hospital, which occurred after Mullen's amputation and before Mullen was admitted to Orchard Park.

29. During the first meeting between Adair and Mullen, Johnson was not present; thus, Adair and Mullen communicated in written English by using a pad of paper and pen Mullen had at her bedside. Adair determined that he needed to have Johnson present and made arrangements to come back to meet with Mullen when Johnson could be present.

30. Adair testified that one of the reasons he needed to have Johnson present at the second meeting was "to make sure Ms. Mullen[] could understand."

31. Adair testified, "if [Johnson] was not available [for the meeting], if she was out of town or something, I would ask the hospital if they had interpreter services as well since the hospital's seeing the patient."

32. Adair testified that he wanted Johnson present during his second meeting with Mullen "to make sure she understood . . . everything about Orchard Park and what I was doing and bringing her in if she wanted to select our facility, because that was her primary way of communicating, even though she could communicate in writing, just to make sure that all that was taking place." Deposition of Philip Adair, November 13, 2019 ("Adair Dep.") 52:10-16, ECF 80-5.

33. At Adair's second meeting with Mullen, Johnson was present and interpreted for Mullen and Adair. Mullen and Johnson requested that Johnson be allowed to stay at the facility with Mullen.

34. Adair has the authority to admit a prospective patient to Orchard Park unless the prospective patient has a "red flag." Prior to Mullen's admission to Orchard Park, Adair "red flagged" Mullen for her hearing loss, need for interpreter services, amputation, medications, prior visits to otherfacilities, and the number of days she had left for Medicare, and informed Orchard Park's Administrator, Chris Tanner, and the Director of Nursing.

35. Mullen was admitted to Orchard Park on June 26, 2016. Johnson and the Plaintiffs' service dogs "spent pretty much every night" with Mullen at Orchard Park from June 26, 2016 through August 9, 2016. Deposition of Deborah Johnson, August 15, 2019 ("Johnson Dep.") 79: 20-25, 80: 1-3.

36. Throughout Mullen's residency, Orchard Park was to provide to her skilled nursing services, skilled rehabilitation services, physical therapy, and occupational therapy.

37. Specifically, Mullen received treatment at Orchard Park for the following, which includes, but is not limited to: a below-the-knee amputation for which she received physical therapy, occupational therapy, and aquatic therapy; a non-healing surgical wound to her right leg from her below-the-knee amputation prior to her admission, including application of ace bandages, Kerlex, and dry gauze; weekly skin assessments; Diabetes Mellitus Type II; pre-existing issues including nerve pain and muscle spasms; pre-existing hypertension; digestive issues including nausea, diarrhea, gas, bloating, and constipation; nasal dryness; cellulitis on her left lower extremity; a left shin x-ray referral; right lower rib pain, for which she was referred for an x-ray of her chest; a fungal infection of her mouth; and a psychiatric evaluation for pain/narcotic dependency.

38. Patients communicate with staff at Orchard Park on and off throughout a twenty-four-hour day, seven days per week. Mullen was provided and wrote on a dry erase board to communicate with Orchard Park's staff; Orchard Park also provided a "communication board," but Mullen found it...

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