Medina v. The City of Cape Coral, Florida

Filing 39

ORDER denying 29 Plaintiff's Motion for Partial Summary Judgment on the Issue of Liability and Incorporated Memorandum of Law. Signed by Judge Sheri Polster Chappell on 8/25/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EVLIN MEDINA, as Next Friend and
Natural Guardian of A.M.,
Plaintiff,
v.

Case No: 2:13-cv-377-FtM-38DNF

THE CITY
FLORIDA,

OF

CAPE

CORAL,

Defendant.
/
ORDER1
This matter comes before the Court on Plaintiff's Motion for Partial Summary
Judgment on the Issue of Liability and Incorporated Memorandum of Law (Doc. #29)
filed on July 15, 2014.

Defendant filed a response and memorandum of law in

opposition (Doc. #38) on August 11, 2014. This matter is now ripe for review.
Facts
Plaintiff is the Next Friend and Natural Guardian of a child named A.M. (Doc.
#29-2, at ¶ 2).

Defendant is a municipal corporation organized and existing under the

laws of the State of Florida, who offers various programs and services for children.
Among these programs and services are before/after school programs and summer
camps. (Doc. #3, at ¶ 8; Doc. #29 at 1). Since A.M. was approximately five years old,
1

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she has participated in Defendant’s school programs and summer camps. (Doc. #29-2,
at ¶ 9).
In 2012, A.M. was diagnosed with Type 1 diabetes. (Doc. #29-1). As a result of
this diagnosis, A.M. requires various daily treatments, including careful monitoring of her
blood glucose levels and insulin injections. (Doc. #29-1). While A.M. is able to monitor
her glucose levels independently, she is unable to self-administer the necessary insulin
injections. (Doc. #29-2, at ¶ 6). A.M. also maintains a glucagon kit for emergency
situations where her blood glucose levels fall too low. (Doc. #29-1). Similar to the
insulin injections, A.M. is unable to administer the glucagon kit independently. (Doc.
#29-2, at ¶ 6).
In anticipation of having A.M. participate in Defendant’s 2012 summer camp,
Plaintiff contacted Defendant’s Risk Manager, Michael K. Quigley, informing him of her
daughter’s diagnosis and requesting that Defendant provide a staff member at the
summer camp that would be able to administer A.M.’s insulin injections and, if needed,
the glucagon kit. (Doc. #29-2, at ¶ 10). Defendant responded that it would do its best
to accommodate A.M.’s needs and directed Plaintiff’s attention to Defendant’s existing
diabetes accommodation policy.

(Doc. #29-2, at ¶ 11).

The existing diabetes

accommodation policy provided that Defendant would assist in monitoring A.M.’s
glucose levels. (Doc. #29-2, at ¶ 11). The policy further provided that if A.M.’s glucose
levels fell outside the target range, Defendant agreed to take action such as providing
fast-acting carbohydrates, contacting Plaintiff to take A.M. to her physician, and, in the
case of more serious symptoms, calling paramedics to the scene. (Doc. #29-2, at ¶ 11).

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However, the existing policy also noted that injections would be provided only “[i]n the
event of a dire emergency.” (Doc. #38-1 at 3).
Plaintiff avers that because she is a single mother who works a full time job,
preventing her from coming to take A.M. to the physician each time A.M.’s glucose
levels fell out the target range, the Defendant’s existing diabetes accommodation policy
precludes A.M. from participating in Defendant’s summer camps. (Doc. #29-2, at ¶ 1617).

To that end, Plaintiff asserts that the requested accommodation of providing

someone who is able to administer A.M.’s insulin injections and glucagon kit is
necessary to afford A.M. the opportunity to participate in Defendant’s summer camps.
(Doc. #29-2, at ¶ 17).
In this action, Plaintiff seeks a declaratory judgment that Defendant is in violation
of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, and Section
504 of the Rehabilitation Act of 1974 (“Rehabilitation Act”), 29 U.S.C. § 794. Plaintiff
now moves for partial summary judgment on the issue of liability under the ADA and
Rehabilitation Act.
Standard
Summary judgment is appropriate only when the Court is satisfied that “there is
no genuine issue as to any material fact” and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine if there is sufficient evidence
such that a reasonable jury could return a verdict for either party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Similarly, an
issue is material if it may affect the outcome of the suit under governing law. Id.

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The moving party bears the burden of showing the absence of any genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). In deciding whether the moving party has met this initial burden, the Court
must review the record and all reasonable inferences drawn from the record in the light
most favorable to the non-moving party. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313
(11th Cir. 1999). Once the Court determines that the moving party has met its burden,
the burden shifts and the non-moving party must present specific facts showing that
there is a genuine issue for trial that precludes summary judgment. Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986).
“The evidence presented cannot consist of conclusory allegations, legal
conclusions or evidence which would be inadmissible at trial.” Demyan v. Sun Life
Assurance Co. of Canada, 148 F. Supp. 2d 1316, 1320 (S.D.Fla.2001) (citing Avirgan v.
Hull, 932 F.2d 1572, 1577 (11th Cir.1991)). Failure to show sufficient evidence of any
essential element is fatal to the claim and the Court should grant the summary
judgment. Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. Conversely, if reasonable
minds could find a genuine issue of material fact then summary judgment should be
denied. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir.
1992). “If a reasonable fact finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a genuine issue of material
fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Educ., 495
F.3d 1306, 1315 (11th Cir. 2007).

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Discussion
Plaintiff seeks partial summary judgment on the basis that there is no genuine
issue of material fact as to Defendant’s liability under Counts I and II, alleging violations
of the ADA and Rehabilitation Act, respectively. (See Doc. #29). Plaintiff argues that
each of the elements of a prima facie claim under the ADA and the Rehabilitation Act
have been satisfied. (Doc. #29 at 5-10). First, Plaintiff avers that A.M. is a qualified
individual with a disability, bringing her under the protection of both the ADA and the
Rehabilitation Act.

(Doc. #29 at 5).

Second, Plaintiff contends that Defendant is

discriminating against A.M. on the basis of her disability. (Doc. #29 at 6). To support
this contention, Plaintiff cites to a Department of Justice consent order and settlement
agreement for the proposition that “the Department of Justice considers the
administration of insulin and glucagon injections to be a necessary accommodation for
children with diabetes [at camps and summer programs].” (Doc. #29 at 8). As a result,
Plaintiff avers that by failing to provide such an accommodation, Defendant is
discriminating against A.M. on the basis of her disability.
In response, Defendant accepts several of Plaintiff’s alleged material facts. For
instance, Defendant does not dispute that A.M. is disabled and entitled to protection
within the meaning of the ADA and Rehabilitation Act. (Doc. #38 at 2). Defendant,
however, disputes Plaintiff’s contention that the administration of insulin and glucagon
injections is a necessary accommodation for children with diabetes at camps and
summer programs. (Doc. #38 at 6-7). Instead, Defendant contends that there remains
a genuine issue of material fact as to whether its existing diabetes accommodation
policy is a reasonable accommodation that allows A.M. an opportunity to participate in

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its summer camps and school programs. (Doc. #38 at 10).

To support this position,

Defendant cites to two additional Department of Justice settlement agreements for the
proposition that camps and summer programs are not required to administer injections.
(Doc. #38 at 11).
To establish a prima facie case of discrimination under the ADA and the
Rehabilitation Act, Plaintiff must demonstrate that A.M. (1) is disabled, (2) is a qualified
individual, and (3) was subjected to unlawful discrimination because of her disability.
See 42 U.S.C. § 12112(a); see also Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir.
2000) (noting “[d]iscrimination claims under the Rehabilitation Act are governed by the
same standards used in ADA cases”). Here, both parties agree that A.M. is a qualified
disabled individual entitled to the protection of the ADA and Rehabilitation Act. (Doc.
#29 at 5; Doc. #38 at 6). Therefore, there are no genuine issues of material fact as to
the first two elements of Plaintiff’s prima facie case. The Court’s analysis will focus on
the third element, i.e., whether A.M. was subjected to unlawful discrimination because
of her disability.
When a plaintiff alleges that a public entity discriminated on the basis of a
disability, the plaintiff can establish the third element by illustrating that the public entity
refused to provide a reasonable accommodation for the disabled person.

Wolfe v.

Florida Dep't of Corr., 5:10-CV-663-OC-PRL, 2012 WL 4052334, *5 (M.D. Fla. Sept. 14,
2012) (internal citations omitted). To illustrate that the public entity refused to provide a
reasonable accommodation, the plaintiff must show she requested an accommodation
or that the need for such an accommodation was obvious and the entity refused to

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provide one. Id. However, “[t]he reasonableness of an accommodation is generally a
question of fact not appropriate for resolution on summary judgment.” Id.
The Supreme Court has defined reasonable accommodation to mean one that
provides “meaningful access” to the program. Alexander v. Choate, 469 U.S. 287, 30001 (1985). In support of her Motion, Plaintiff contends the only way to provide A.M.
meaningful access to Defendant’s summer camps is through her requested
accommodation. That is, Plaintiff asserts that Defendant must provide a staff member
at each of its summer camps that is trained to administer insulin or glucagon injections
to children with diabetes. As noted above, to support this contention, Plaintiff points the
Court’s attention to two different Department of Justice agreements.
First, Plaintiff directs the Court’s attention to a consent order issued in a District
of Massachusetts’ case titled Thompson v. Town Sports International, Inc. (See Doc.
#29-4). In citing the consent order issued in Thompson, Plaintiff correctly notes that the
agreement directed the children’s camp to adopt a diabetes policy, which included
“monitoring and regulating glucagon and insulin administration.” (Doc. #29-4). Second,
Plaintiff directs the Court’s attention to a settlement agreement derived after a complaint
was filed with the Department of Justice against Rainbow River Child Development
Center. (See Doc. #29-5). Similar to the Thompson consent agreement, the Rainbow
River Child Development Center settlement agreement required Rainbow River to adopt
a diabetes management policy that included agreeing to administer insulin and
glucagon to the children under their care. (Doc. #29-5). Plaintiff seemingly interprets
these two Department of Justice agreements as mandating camps to administer insulin

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injections and assist with insulin pumps in order to provide meaningful access to their
camps for children with diabetes. (See Doc. #29 at 8).
In response, Defendant maintains that Plaintiff’s requested accommodation is not
reasonable. (Doc. #38 at 7). To support this contention, Defendant provides the Court
with an affidavit from Dr. Barry Reiner, a board certified physician in pediatrics and
pediatric endocrinology. (Doc. #38-2). Dr. Reiner affirms that “[t]he administration of
insulin . . . injection[s] is a medical or nursing practice [that] should not be undertaken by
laypersons.” (Doc. #38-2 at ¶ 21). Dr. Reiner further notes that reinserting an insulin
pump is a “complicated procedure [that] should only be performed by medical or nursing
personnel specifically and comprehensively trained.” (Doc. #38-2 at ¶ 19).
In addition, Defendant directs the Court’s attention to two additional Department
of Justice agreements, which Defendant relied on in creating its existing diabetes
accommodation policy.

(Doc. #38 at 11).

First, Defendant points to a settlement

agreement between the Department of Justice and La Petite Academy, Inc. (Doc. #386).

In the La Petite Academy agreement, La Petite Academy agreed to adopt a

diabetes accommodation policy that provided for monitoring and testing children’s
glucose levels. (Doc. #38-6 at 17-18). However, the adopted policy did not mandate
the administration of insulin or glucagon. (Doc. #38-6 at 17-18). Second, Defendant
directs the Court’s attention to a settlement agreement between the Department of
Justice and Kindercare Learning Centers, Inc. (Doc. #38-5). Similar to the Le Petite
Academy agreement, the Kindercare agreement mandates that Kindercare adopt a
diabetes accommodation policy.

(Doc. #38-5 at 1).

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The Kindercare agreement,

however, explicitly states, “[n]othing in this Agreement requires Kindercare to administer
insulin shots to anyone.” (Doc. #38-5 at 2).
Viewing this evidence in the light most favorable to Defendant, the Court finds
there is a genuine issue of material fact as to whether Defendant’s existing diabetes
accommodation policy is a reasonable accommodation in accordance with the ADA and
Rehabilitation Act. Although Plaintiff provides the Court with two Department of Justice
agreements requiring the respective parties in those actions to administer insulin
injections and assist with insulin pumps, neither of those agreements are binding on the
Court. (Doc. #29-4; Doc. #29-5). Moreover, Plaintiff’s Department of Justice evidence
is contradicted by Defendant’s own Department of Justice evidence, which does not
require administration of insulin injections or assistance with insulin pumps. (Doc. #385; Doc. #38-6).
Outside of the Department of Justice evidence, Plaintiff also fails to note any
further sources indicating that Defendant’s existing diabetes accommodation policy is
unreasonable. In contrast, Defendant provides the Court with Dr. Reiner’s affidavit,
asserting that Defendant’s existing diabetes accommodation policy is reasonable based
on the fact that further action, such as insulin injections, constitutes “a medical or
nursing practice [that] should not be undertaken by laypersons.” (Doc. #38-2). After
considering the contradicting Department of Justice evidence and Dr. Reiner’s
testimony, the Court finds that the decision of whether Defendant’s existing diabetes
accommodation policy is a reasonable accommodation is a genuine issue of material
fact best decided by a trier of fact. Therefore, partial summary judgment on the issue of
liability is not appropriate at this time.

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Accordingly, it is now
ORDERED:
Plaintiff's Motion for Partial Summary Judgment on the Issue of Liability and
Incorporated Memorandum of Law (Doc. #29) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 22nd day of August, 2014.

Copies: All Parties of Record

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