Argenyi v. Creighton University

Filing 276

ORDER: The Defendant's Renewed Motion for Partial Summary Judgment as to Plaintiff's Claim for Compensatory Damages and Motion to Strike Jury Demand #258 is denied; and The Defendant's Motion for Leave #273 requesting leave to file a reply brief in support of its renewed motion for partial summary judgment is denied as moot. Ordered by Chief Judge Laurie Smith Camp. (JB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL S. ARGENYI,
Plaintiff,
v.
CREIGHTON UNIVERSITY,
Defendant.

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CASE NO. 8:09CV341

MEMORANDUM
AND ORDER

This matter is before the Court on the Renewed Motion for Partial Summary
Judgment as to Plaintiff’s Claim for Compensatory Damages and Motion to Strike Jury
Demand (Filing No. 258). For the reasons discussed below, the Motion will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Michael S. Argenyi (“Argenyi”) is a medical student with a hearing disability,
attending Defendant Creighton University (“Creighton”). He brought this action under Title
III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182, and § 504 of the
Rehabilitation Act, 29 U.S.C. § 794.
Argenyi does not know sign language, but relies primarily on "cued speech," which
uses hand signals to represent sounds, and Communication Access Real-time
Transcription (“CART”), a system which transcribes spoken words into text on a computer
screen. Before starting medical school, he received a bilateral cochlear implant, and his
physicians recommended that he be provided with access to CART, a cued speech
interpreter, and an FM system that would direct sound to his cochlear implants. Creighton
provided some, but not all, of the accommodations Argenyi requested.
This Court granted summary judgment in favor of Creighton, and Argenyi appealed.
The United States Court of Appeals for the Eighth Circuit reversed, concluding that genuine

issues of material fact remained “as to whether Creighton denied Argenyi an equal
opportunity to gain the same benefit from medical school as his nondisabled peers by
refusing to provide his requested accommodations.” Argenyi v. Creighton Univ., 703 F.3d
441, 451 (8th Cir. 2013). The matter is set for jury trial on August 20, 2013.
Creighton seeks summary judgment as to Argenyi’s claim for compensatory
damages, asserting (1) Title III of the ADA does not provide for compensatory damages,
and (2) Argenyi cannot recover compensatory damages under the Rehabilitation Act
because no reasonable jury could conclude that Creighton acted with deliberate
indifference when it denied certain of Argenyi’s requests for accommodation. Creighton
also contends that Argenyi is not entitled to a jury trial, because he is limited to equitable
relief.
Argenyi argues that he can obtain compensatory damages under Section 504 of the
Rehabilitation Act if he demonstrates that Creighton acted with “deliberate indifference to
the strong likelihood that pursuit of its questioned policies [would] likely result in a violation
of federally protected rights.” (Pl.’s Br., Filing No. 267 at 11 (quoting Meagley v. City of
Little Rock, 639 F.3d 384, 389 (8th Cir. 2011).) He suggests that it is for the trier of fact to
determine whether Creighton’s “‘decisions not to accommodate him were considered and
deliberate.’” (Id. at 12 (quoting Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1140 (9th Cir.
2001).)
STANDARD OF REVIEW
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Gage v. HSM Elec. Prot.
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Servs., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)). The court will
view “all facts in the light most favorable to the non-moving party and mak[e] all reasonable
inferences in [that party's] favor.” Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819
(8th Cir 2011). “[W]here the nonmoving party will bear the burden of proof at trial on a
dispositive issue . . . Rule 56(e) permits a proper summary judgment motion to be opposed
by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings
themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need
not negate the nonmoving party’s claims by showing “the absence of a genuine issue of
material fact.” Id. at 325. Instead, “the burden on the moving party may be discharged by
‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s case.”
Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact' such that [its] claim should
proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The
nonmoving party “'must do more than simply show that there is some metaphysical doubt
as to the material facts,' and must come forward with 'specific facts showing that there is
a genuine issue for trial.'” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
2011) (quoting Matsushita, 475 U.S. at 586-87)), cert. denied, 132 S. Ct. 513 (2011).
“'[T]he mere existence of some alleged factual dispute between the parties'” will not defeat
an otherwise properly supported motion for summary judgment. Quinn v. St. Louis Cnty.,
653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986)).
In other words, in deciding “a motion for summary judgment, 'facts must be viewed
in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to
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those facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)). Otherwise, where the Court finds that “the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party”–where there is no
“'genuine issue for trial'”–summary judgment is appropriate. Matsushita, 475 U.S. at 587
(quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
In its opinion remanding this matter, the Eighth Circuit stated: “The key question is
whether Creighton discriminated against Argenyi by failing to provide necessary auxiliary
aids and services during his first year of medical school and by refusing to permit Argenyi
to use an interpreter during his second year clinic.” 703 F.3d at 447. Providing further
guidance, the Eighth Circuit said:
Under a "meaningful access" standard, we have decided that aids and
services "are not required to produce the identical result or level of
achievement for handicapped and nonhandicapped persons," but they
nevertheless "must afford handicapped persons equal opportunity to . . . gain
the same benefit." Loye v. Cnty. of Dakota, 625 F.3d 494, 499 (8th Cir. 2010)
(citing Alexander, 469 U.S. at 305). The Eleventh Circuit has similarly
concluded that the "proper inquiry" under the Rehabilitation Act to determine
if a hospital had provided "necessary" auxiliary aids to a hearing impaired
patient was whether the proffered aids "gave that patient an equal
opportunity to benefit from the hospital's treatment." Liese v. Indian River
Cnty. Hosp. Dist., 701 F.3d 334, 343 (11th Cir. 2012). As the court observed
in Liese, that inquiry "is inherently fact-intensive" and "largely depends on
context." Id. at 342–43.
Id.
It will be for the trier of fact to determine whether Creighton failed to provide auxiliary
aids that were necessary to ensure Argenyi effective communication so he could enjoy
meaningful access to the education and training that Creighton Medical School offered.
It also will be for the trier of fact to determine whether Creighton acted with deliberate
indifference to a strong likelihood that its policies would violate Argenyi’s federally protected

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rights. Both inquiries will be fact-intensive, largely depending on the context. For example,
the question of whether Creighton acted with deliberate indifference to a strong likelihood
that its policies would violate Argenyi’s protected rights may depend on evidence of
Argenyi’s specific disabilities and specific skills, information received by Creighton’s
decision-makers regarding Argenyi’s requests for accommodations and the rationale
underlying those requests, Argenyi’s progress or lack of progress in his studies, and the
specific curriculum of Creighton Medical School.
Accordingly, Creighton’s Renewed Motion for Partial Summary Judgment as to
Plaintiff’s Claim for Compensatory Damages and Motion to Strike Jury Demand will be
denied. At the pretrial conference on this matter, scheduled for July 22, 2013, the parties
may discuss with the Magistrate Judge any requests for bifurcation of trial on matters to be
determined by the jury and the Court.
IT IS ORDERED:
1.

The Defendant’s Renewed Motion for Partial Summary Judgment as to
Plaintiff’s Claim for Compensatory Damages and Motion to Strike Jury
Demand (Filing No. 258) is denied; and

2.

The Defendant’s Motion for Leave (Filing No. 273) requesting leave to file a
reply brief in support of its renewed motion for partial summary judgment is
denied as moot.

DATED this 19th day of July, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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