Reed v. Columbia St Mary's Hospital
Filing
60
ORDER signed by Judge J.P. Stadtmueller on 2/15/2017: GRANTING 49 Defendant's Motion for Summary Judgment; DENYING 51 Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment; GRANTING 53 Plaintiff's Motion to Restrict Documents; DENYING 54 Plaintiff's Motion to Strike Defendant's Religious Exemption Defense; DISMISSING with prejudice the First through Fifth claims of Plaintiff's First Amended Complaint (Docket #37); DISMISSING without prejudice the Sixth through Eighth claims of Plaintiff's First Amended Complaint (Docket #37); and DISMISSING this action. (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LINDA REED,
Plaintiff,
v.
Case No. 14-CV-330-JPS
COLUMBIA ST. MARY’S HOSPITAL,
Defendant.
1.
ORDER
INTRODUCTION
Plaintiff Linda Reed (“Reed”) suffers from several disabilities,
including tardive dyskinesia (“TD”) and bipolar disorder. Her TD makes it
difficult for her to speak, so she often uses a computer-based communication
device. In March 2012, she sought treatment at Defendant Columbia St.
Mary’s Hospital (“Columbia”) because she was feeling suicidal. In this
lawsuit, she asserts that during her four-day stay, Columbia staff
discriminated against her on the basis of her disabilities and refused to make
adequate accommodations for her impairments.
She brings claims for violations of Title III of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12181, and Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794. She also asserts several claims arising
under the Wisconsin Mental Health Act, Wis. Stat. § 51.61, for violations of
her rights as a medical patient. Columbia filed a motion for summary
judgment on October 14, 2016. (Docket #49). Columbia seeks dismissal of all
of Reed’s federal claims. First, it argues that it enjoys a religious exemption
from liability under the ADA. Second, it asserts that there is inadequate
evidence to show that it discriminated against Reed solely based on her
disabilities, as is required to sustain a claim under the Rehabilitation Act.
Finally, Columbia requests that the Court decline to exercise supplemental
jurisdiction over the remaining state-law claims. Reed opposed Columbia’s
motion and filed a motion to strike Columbia’s religious exemption defense,
contending that it had not been timely asserted. (Docket #54 and #55).1 The
parties’ motions are fully briefed and, for the reasons stated below, the Court
must grant Columbia’s motion and dismiss this action.
2.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that the court “shall grant
summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
A fact is “material” if it “might affect the outcome of the suit” under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The court
construes all facts and reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir.
1
Reed also filed a motion to strike the entirety of Columbia’s motion for
summary judgment on the ground that it did not state with particularity the relief
sought, in violation of Federal Rule of Civil Procedure 7(b). (Docket #51); Fed. R.
Civ. P. 7(b). Reed does not explain precisely what is deficient in Columbia’s
motion, and the Court finds no ambiguity in Columbia’s request that her suit be
dismissed. Perhaps Reed is complaining about Columbia’s decision not to file a
motion separate from its memorandum in support? She does not say, and the
Court does not view that decision as a violation of Rule 7(b). See Talano v.
Northwestern Med. Faculty Found., Inc., 273 F.3d 757, 761 (7th Cir. 2001) (finding that
vague allegations of error violate Rule 7(b)’s particularity requirement). Moreover,
the sanction she requests is extreme in comparison to the alleged violation. Thus,
the Court will deny Reed’s motion.
Page 2 of 32
2016). The court must not weigh the evidence presented or determine
credibility of witnesses; the Seventh Circuit instructs that “we leave those
tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.
2010). The party opposing summary judgment “need not match the movant
witness for witness, nor persuade the court that [her] case is convincing, [she]
need only come forward with appropriate evidence demonstrating that there
is a pending dispute of material fact.” Waldridge v. American Hoechst Corp., 24
F.3d 918, 921 (7th Cir. 1994).
3.
RELEVANT FACTS
3.1
Reed’s Treatment at Columbia
Reed suffers from TD, bipolar disorder, post-traumatic stress disorder,
and acute anxiety. (Docket #55 ¶ 11). TD is a neurological disorder that
substantially limits a person’s ability to speak and swallow due to
uncontrollable, involuntary movements in the mouth, limbs, and hands. To
cope with the disease, Reed uses various communication techniques and aids,
including a computer-based communication device called a Dynavox. See
(Docket #37 ¶ 9).
Reed entered the Columbia emergency department in mid-afternoon
on Thursday, March 8, 2012, reporting suicidal thoughts. (Docket #55 ¶ 11).
She was admitted for treatment to Columbia’s inpatient behavioral health
unit. Id. She remained there until her discharge on the morning of Monday,
March 12, 2012. Id. ¶ 12; see also (Docket #59 ¶ 36).
While being treated at Columbia, Reed claims she was subjected to
discrimination because of her disabilities. First, Columbia staff would
repeatedly refuse to give her the Dynavox when she asked for it, including
during her discharge meeting on March 12, 2012. (Docket #37 ¶ 13); (Docket
Page 3 of 32
#55 ¶¶ 17, 24). (The Dynavox was held at the nurse’s station at night in order
to recharge its batteries.)
Second, she says she was prescribed psychotropic medication despite
telling Columbia staff that she is allergic to it. (Docket #37 ¶ 14). She refused
to take it when offered. Id. At times, she asked to see her medication records
so she could determine whether she was being given any such medications,
but these requests were refused. Id. ¶¶ 14, 23; (Docket #55 ¶ 13). Third, she
was repeatedly denied use of the telephone to call her “case manager.”
(Docket #37 ¶ 21). Fourth, she was denied access to the hospital chaplain.
(Docket #55 ¶ 22). Finally, she was escorted off the hospital grounds by two
security guards after the March 12 discharge meeting. Id. In her original
complaint, she claimed that the guards injured her, but the amended
complaint omits such allegations. See id.; see also (Docket #55-26 at 3–5).
The record reveals that Reed’s stay at Columbia was fraught with
difficulty and punctuated by confrontations between her and the staff. See
(Docket #55-11 at 21) (examination note stating that Reed was discharged for
“behavior issues” and was “sent away by staff”). At the intake interview on
March 8, 2012 with psychiatrist Dr. Eric Kaplan (“Dr. Kaplan”), she was
“angry and agitated” and in a “manic state”—so much so that Dr. Kaplan
had to leave the intake interview and another doctor completed it later. See
id. at 46, 83–84. It was also noted by a nurse that at intake, Reed
communicated in “explosive verbal volleys” along with using her Dynavox.
Id. at 100.
Additionally, throughout her stay, Reed refused some of Columbia’s
treatment recommendations, including certain medications on her stated fear
that she was allergic to them. (Docket #55-22 at 2 ¶ 3); (Docket #55 ¶ 75);
(Docket #55-11 at 24) (progress note that Reed was “all over the map, refuses
Page 4 of 32
to take any psych meds”); see also (Docket #55-13 at 30–31) (May 30, 2013 note
from Dr. Kathryn Gaines, who treated Reed for over a decade, that Reed
visited her in a disturbed stated and refused to take her medication).
Although Reed claims that she was prescribed psychotropic drugs at
Columbia after warning the staff of her allergy, there is no evidence that she
was ever administered such medications, only that she was concerned about
the possibility. (Docket #55 ¶ 76); (Docket #59 ¶¶ 75–76); but see (Docket #5511 at 17) (March 8, 2012 note showing order for psychotropic medications).
In any event, she claims she refused all such medications when they were
offered to her. (Docket #59 ¶ 75); (Docket #55-11 at 34). Similarly, while she
asserts that she was not allowed to see her medication records, (Docket #59
¶ 77), Donna Taylor, Director of Risk Management at Columbia, later
explained to her that this was due to Columbia policy, which provides that
a patient can review her records after discharge, (Docket #55-22 at 1). The
right to review records is not, as Reed believed, an unfettered right to see all
such records immediately upon request. See id.
Further, she was often disruptive, loud, agitated, and could not easily
be understood in her speech as a result of her TD. See (Docket #55-11 at 34)
(Reed describing her disabilities as “noisy”); id. at 35 (Reed writing that on
one occasion, she became “spooked” and “los[t] control over [her] disorder”);
id. at 42 (progress note that Reed exhibited bipolar disorder with “severe
mania”); id. at 85 (progress note that Reed became “distraught” in the
afternoon on March 10 and was “unable to speak”); id. at 86 (progress note
that Reed’s mood was “up and down all shift” late on March 11). Her
behavior was so hard to control that the nursing supervisor, William Fry
(“Fry”), testified that staff would only provide Reed her Dynavox “if her
behavior was appropriate.” (Docket #55 ¶¶ 62–64); (Docket #59 ¶ 64). There
Page 5 of 32
is also evidence that she became belligerent when counseled about
appropriate behavior during group therapy sessions and while she was being
escorted out of the hospital at discharge. (Docket #55-22 at 3 ¶ 7, 4 ¶ 13);
(Docket #55-11 at 86–87).
Andrew Miller (“Miller”), a Columbia patient care assistant, witnessed
the incident which is the central feature of this case. (Docket #55 ¶ 38). Early
in the morning on Sunday, March 11, 2012, Miller was seated at the nurse’s
station in the behavioral health unit. Id. Reed approached him and asked for
her Dynavox, which was charging at the nurse’s station. Id. This request was
apparently denied for reasons not explained by the parties. Id. Reed then
walked into the dining room, which faced the nurse’s station, to get a napkin
on which to write Miller a note. Id. Reed contends that the note contained a
request to speak with her case manager, whom she had been trying to contact
for several days. See id. Miller then observed Reed walk out of the dining
room, sit on the ground, and begin to cry. Id. Reed told Miller that she
needed help. Id.
Miller claims that Reed refused to move although he explained several
times that she needed to return to her room so that the nurses could help her.
Id. ¶¶ 38–45. During this time, she was screaming so loudly that other
patients came out of their rooms to see what the commotion was. Id. He
decided that she was not going to move voluntarily, so he helped her stand.
Id. At this, she screamed at Miller, asking him to stop, but he responded that
she could not stay in the middle of the floor, that she was causing a
disturbance, and that the nurses could help her once she was back inside her
room. Id.
According to Miller, Reed’s screaming continued at such a volume that
the nurses came out of their morning meeting as he was escorting her to her
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room. Id. ¶¶ 46–51. Fry, who was at the meeting, directed Miller to take Reed
to a “seclusion” room instead of her own room. Id. Fry helped Miller walk
Reed to this room, and she did not resist. Id. They then lowered her gently to
the bed on the floor. Id. She remained in the room, which was unlocked and
open, for two hours. Id. Fry claims that Reed was never placed in forced
isolation. Id.
Reed tells the story differently.2 She claims that after Miller initially
denied her request for her Dynavox, she went to the dining room, wrote a
note about contacting her case manager, and obtained a cup of coffee. Id. ¶¶
38–45. She then returned to the nurse’s station and, as she tried to pass Miller
her note, her TD caused her to spill hot coffee on herself. Id. She fell to the
floor in pain. Id. She admits that Miller then told her “that she could not stay
in the middle of the floor.” Id. ¶ 43. At some point, Miller yelled, “that’s it!”,
grabbed Reed, and took her to an “isolation” room. Id. According to Reed,
Miller threw her on a mattress on the floor of the room and left. Id.; see also
(Docket #59 ¶¶ 42–44). She claims she was “never violent during the entire
incident,” though she never denies that she was on the floor or that she was
crying out during the incident. (Docket #55 ¶ 43); (Docket #55-11 at 30) (Reed
2
Reed’s version of events is based almost exclusively on an online
complaint about her experience at Columbia she purportedly filed with the
Wisconsin Department of Health Services in July 2012. (Docket #55-26); (Docket #59
¶ 1). Defendant disputes the foundation for the document, claiming it was never
produced in discovery despite being responsive to its requests for production.
(Docket #59 ¶ 1). Defendant requests that the document not be considered here.
(Docket #56 at 5–6). The Court notes that the online complaint is not sworn.
However, Reed incorporated the document by reference into her affidavit she
submitted along with her opposition to Columbia’s motion for summary
judgment. See (Docket #55-25). Because the statements in the online complaint do
not save Reed’s claims, the Court will assume without deciding that the online
complaint has a sufficient foundation and should not be stricken for its prior nondisclosure.
Page 7 of 32
noting on her discharge form that she had fallen to the floor before Miller
“attacked”); (Docket #59 ¶ 63) (Fry testifying that during the incident “it was
impossible to understand [her] because she was really just screaming and
yelling”); see also (Docket #52 at 22) (stating that Reed “became even more
agitated” after falling to the floor).3 Furthermore, Reed avers that Fry never
participated in the seclusion incident at all. (Docket #55 ¶¶ 46–51). As for the
period of segregation, Reed claims that she did not know or believe that she
was free to leave the room. Id. In fact, she states that “[a] patient care
attendant remained present outside the door” for the entire period,
suggesting that he or she was ensuring that Reed stayed in the room. See
(Docket #59 ¶ 46).
Fry testified that he chose the seclusion room for Reed to decrease her
stimulation and allow her an opportunity to calm herself down. (Docket #55
¶ 48). Reed asserts that Fry chose the seclusion room as a punitive measure
without first attempting less drastic methods for de-escalating the situation,
which was a violation of Columbia policy. Id. She also argues that Columbia’s
existing policies were insufficient for the situation, claiming that they were
3
Reed appears to deny the entirety of Miller’s and Fry’s account of events
in her responses to Columbia’s proposed statements of fact. See (Docket #55 ¶¶
38–50). Yet the 2012 online complaint she submitted, see supra note 2, which in most
cases is the only basis for her denial, does not actually contain express denials of
everything that her opponents say occurred, such as her screaming while she was
on the floor. The online complaint is inadequate to dispute those facts it does not
address. See Johnson v. Shiseki, No. 08–C–471, 2010 WL 1287037, at *2 (E.D. Wis.
Mar. 29, 2010) (“To the extent that an objection to a proposed finding of fact. . .is
non-responsive to the proposed finding of fact, the objection does not create a
dispute of fact.”) (internal citations omitted). Put differently, her online complaint
could be true even though it is incomplete, and the mere fact that it does not
include a particular fact does not establish that the fact is disputed. If Reed had
wanted to specifically deny everything Fry and Miller say happened on March 11,
2012, she could have offered sworn statements to that effect as a supplement to the
statements she made in the online complaint. She elected not to.
Page 8 of 32
threadbare on how to accommodate speech-impaired patients. (Docket #59
¶¶ 49–55).
The medical record shows that sometime later in the day on March 11,
Reed expressed a desire to leave Columbia. (Docket #55 ¶ 52); (Docket #55-11
at 32–36). Columbia staff counseled her not to go, informing her that she was
at a risk of experiencing worsening psychiatric symptoms and that she was
a danger to herself and others. (Docket #55-11 at 33). On this advice, she
rescinded her notice of intent to leave. Id. at 32; (Docket #55 ¶ 52).
At the discharge meeting with Dr. Kaplan on the morning of Monday,
March 12, 2012, he noted that although Reed had sought help for suicidal
thoughts, “from the moment she came to the ward, she has been totally
uncooperative.” Id. For instance, as noted above, at the intake interview on
March 8, she “practically kicked [Dr. Kaplan] out.” Id. Similarly, “over the
weekend she signed an intent to leave [form], but then rescinded it.” Id. Dr.
Kaplan observed that there was “no reason to believe that she is acutely
suicidal. At this point, [Reed] is being disruptive to the milieu and I do not
think [she] would benefit from an acute inpatient hospitalization.” Id. Reed
was then discharged from Columbia’s care.
3.2
Columbia’s Ownership Structure
Columbia’s complex chain of ownership is relevant to its religious
exemption defense to Reed’s ADA claims, and so the Court must describe it
in some detail. To better illustrate the parties’ competing views on the matter,
the Court will first set out Columbia’s account of that structure, then describe
Reed’s challenges to it.
On June 30, 2011 the Congregation of Consecrated Life and Societies
of Apostolic Life of the Vatican (the “Congregation”) conferred public juridic
Page 9 of 32
personality on Ascension Health Ministries. Id. ¶ 16.4 Ascension Health
Ministries, in turn, was empowered to “carry out its apostolic works through
various civil entities and primarily through Ascension Health, a Missouri nonprofit corporation.” Id. ¶ 17. The governing documents of Ascension Health
Ministries provide that it would be governed in accordance with canon law
and that its mission would be “to further the healing ministry of Jesus Christ
with special attention to those persons who are poor and vulnerable.” Id. ¶¶
18, 20. To do this, it would serve as “canonical sponsor” of subsidiaries which
would in turn provide healthcare services. Id.
Ascension Health Ministries is subject to and accountable to the
Congregation. Id. ¶ 19. It must submit an annual report to the Congregation
which provides evidence that the integrity of faith and morals is preserved
and that its apostolic activity is in accord with the Congregation’s purposes.
Id. Its 2011 report confirms that it is a ministry of the Catholic Church. Id. ¶
25. Seven of the eleven members of Ascension Health Ministries for fiscal
year 2012 were members of religious orders. Id. ¶ 20.
Ascension Health Alliance, a Missouri non-profit corporation, was
formed to carry out the mission of Ascension Health Ministries. Id. ¶ 21. Its
bylaws provide that it would be governed according to the “mission, vision,
and values” of Ascension Health Ministries and “in accordance with the
official teachings of the Roman Catholic Church.” Id. ¶ 22. Ascension Health
Ministries approved the creation of Ascension Health Alliance as the new
parent organization for the Ascension healthcare system. Id. ¶¶ 23–24, 26.
Ascension Health is a Missouri non-profit and a subsidiary of
Ascension Health Alliance. Id. ¶ 27. Its articles of incorporation (in effect at
4
Columbia explains that this is the Roman Catholic Church’s equivalent of
creating a corporation under civil law. (Docket #49 at 5 n.3).
Page 10 of 32
the relevant time) provided that it was to serve in the health ministry of the
Roman Catholic Church, “to carry out its mission and ensure that the
elements of Catholic identity are integrated and implemented throughout the
health ministry.” Id. At the relevant time, five members of the Ascension
Health board of trustees, including the chair, were members of religious
orders. Id.
Columbia St. Mary’s, Inc., a Wisconsin non-profit corporation, is
“sponsored” by Ascension Health and Columbia Health System, Inc., which
is a non-sectarian community health system. Id. ¶ 28. Ascension Health
enjoys broad powers with respect to Columbia St. Mary’s, Inc., including the
power to approve its mission and vision statements; approve changes to its
governing documents; appoint or remove directors, including the chairman;
approve transfer of assets and reallocation of debt among Columbia St.
Mary’s, Inc. and other Ascension Health ministries; and approve of the
incurrence of debt. Id. ¶ 31. Columbia St. Mary’s, Inc.’s bylaws provide that
it will control any subsidiaries, including having the power to approve the
subsidiary’s mission and value statements and its governing documents;
approve or remove the members of the governing board; approve the
operating and capital budget of the subsidiary; and approve the subsidiary’s
senior executive. Id. ¶ 32.
Columbia (the defendant here)—whose legal name is Columbia St.
Mary’s Hospital Milwaukee, Inc.—was one such subsidiary of Columbia St.
Mary’s, Inc. Id. ¶ 33. Columbia is a non-profit organization whose sole
corporate member is Columbia St. Mary’s, Inc. Id. Columbia’s governing
documents provide that its purpose is to serve in the health ministry of the
Catholic Church and carry out its mission. Id. ¶ 34. To that end, the ethical
and religious directives of Columbia state that it “shall be and remain a
Page 11 of 32
Catholic facility or institution, and shall not perform procedures or activities
that are inconsistent with the Ethical and Religious Directives for Catholic
Health Care Services.” Id. Columbia was listed in “The Official Catholic
Directory” for 2012. Id. ¶ 37.
Reed does not take issue with the broad outlines of this corporate
structure. Rather, she attacks it at discrete points, noting inconsistencies in the
documents submitted and instances where a particular entity is nonsectarian
or controlled by lay persons. For example, she claims that, based on an
Ascension webpage she accessed in November 2016, it is arguable that
Ascension Health Ministries may not have existed in 2012, at least not in the
form Columbia describes. Id. ¶¶ 16–17. Although she does not thoroughly
explain her point, the Court gathers that this would, in Reed’s view, defeat
the notion that Ascension Health Ministries oversaw Ascension Health
Alliance and used it to carry out Ascension Health Ministries’ Catholic
mission. See (Docket #59 ¶¶ 26–28).
Next, she contends that Ascension Health Ministries’ 2011 report to
the Congregation is not a credible source for information about its religious
identity. (Docket #55 ¶¶ 19–20). According to Reed, the report submitted by
Columbia was drafted by an entity other than Ascension Health Ministries
and was in fact drafted for Ascension Health Alliance. Id. She also states that
“annual reports are not governing documents and are usually drafted, edited,
and produced by staff members or outside contractors who may not be
assumed to understand the intricate relationships among the corporate and
governance structures referenced.” Id. She submitted no evidence that this
report was drafted by an uninformed staff member or contractor.
Further, Reed contends that under its bylaws in effect at the time of
her treatment, Ascension Health had only one corporate member, Ascension
Page 12 of 32
Health Alliance, which was not itself a religious order. (Docket #59 ¶¶ 17–22).
Before that time, Ascension Health had corporate members that were
religious orders. Id. ¶ 19. She also asserts that Ascension Health Alliance
exercised essentially complete control over Ascension Health. Id. ¶¶ 23–25.
Columbia rejoins that Ascension Health and Ascension Health Alliance had
several board members who were members of religious orders. Id. ¶ 18.
Additionally, Ascension Health Alliance’s parent, Ascension Health
Ministries, had members of religious orders in seven of its eleven board seats.
Id. ¶ 22.
Of critical importance to Reed is the involvement of Columbia Health
System, Inc. in this governing structure. Columbia Health System, Inc., was
a co-sponsor, along with Ascension Health, of Columbia St. Mary’s, Inc..
(Docket #59 ¶ 9). It is a non-profit but has no religious purpose, according to
its bylaws. Id. In terms of governing Columbia St. Mary’s, Inc., Columbia
Health System, Inc. had the power to approve the sale, transfer or substantial
change in use of all or substantially all of the assets of Columbia St. Mary’s,
Inc. or its divestiture, dissolution, closure, corporate merger, corporate
consolidation, change in corporate membership or corporate reorganization;
to approve Columbia St. Mary’s, Inc.’s mission and vision statement; and to
approve any changes to its governing documents, or those of Columbia, that
would affect Columbia Health System, Inc.’s interest in Columbia St. Mary’s,
Inc., or its rights under its affiliation agreement. Id. ¶ 11.
Reed also emphasizes that Columbia St. Mary’s, Inc.’s bylaws state
that it “shall not be a Catholic facility or institution, but will not perform
procedures that are inconsistent with the Ethical and Religious Directives for
Catholic Health Care Services as approved. . .by the United States Conference
of Catholic Bishops.” Id. ¶¶ 4–7. Under its bylaws, it does not have an
Page 13 of 32
express religious purpose. (Docket #50-21 ¶¶ 1.2, 1.3, 1.4). Nevertheless,
Columbia’s bylaws state that it “will respect the nonsectarian traditions and
values of Columbia Health System, Inc. (“CHS”) and the statements of
Mission, Vision and values of Ascension Health in accordance with the
official teachings of the Roman Catholic Church and the Ethical and Religious
Directives for Catholic Health Care Services[.]” (Docket #50-20 ¶ 1.2). Further,
one of its central roles is “[t]o serve in the health ministry of the Roman
Catholic Church and carry out its mission.” Id. ¶ 1.3-a.5 Reed claims that
Columbia and Columbia St. Mary’s, Inc. had the same board of directors, but,
as Columbia points out, the evidence she cites—a pamphlet prepared for
distribution to the public on Columbia’s website—does not establish this.
(Docket #59 ¶ 4). However, Columbia does admit that it and Columbia St.
Mary’s, Inc., had the same senior executive and that this person executed
their amended bylaws that were in effect in March 2012. Id. ¶ 6.
4.
ANALYSIS
As noted above, in her amended complaint, Reed brings claims for
violations of Title III of the ADA, Section 504 of the Rehabilitation Act, and
the Wisconsin Mental Health Act. Columbia claims exemption from the
requirements of the ADA because it is controlled by a religious organization.
It also asserts that it did not discriminate against Reed solely on the basis of
5
Reed also attempts to show that Columbia Center Birth Hospital, a hospital
owned by Columbia St. Mary’s, Inc., performs contraceptive operations like
vasectomies, in violation of Catholic doctrine. See (Docket #59 ¶¶ 14–16). She does
not explain why the operations of that facility are relevant here, nor does she draw
a competent evidentiary chain between that hospital and those who control
Columbia. For example, Columbia St. Mary’s, Inc. does not list this entity in its
bylaws as one which it controls. (Docket #50-21 ¶ 1.4-c). The Court does not find
Reed’s evidence on this point—an image of a webpage captured in November
2016—to be competent evidence on the question of Columbia’s organizational
affiliations in March 2012. See (Docket #55-7).
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her disability, thereby undermining her Rehabilitation Act claims. Finally,
Columbia urges that in the absence of viable claims under federal law, the
Court should decline to exercise supplemental jurisdiction over her remaining
state-law clams. The Court will discuss each argument in turn.
4.1
Religious Exemption Under the ADA
Title III of the ADA forbids discrimination against disabled individuals
in places of public accommodation. 42 U.S.C. § 12182(a); PGA Tour, Inc. v.
Martin, 532 U.S. 661, 675 (2001). However, the ADA does not apply to
“religious organizations or entities controlled by religious organizations.” 42
U.S.C. § 12187. Columbia claims that it is controlled by a religious institution
and, as a result, enjoys immunity from ADA claims. Reed argues that
Columbia waived the defense by failing to raise it in its answer. (Docket #521). She also asserts that disputes of fact preclude a ruling at this time as to
whether Columbia qualifies for the religious exemption. (Docket #52 at 1–8).
Before reaching the merits of the defense, the Court must first
determine whether Columbia has waived it. It is undisputed that Columbia
formally asserted this defense for the first time in its summary judgment
motion. Most affirmative defenses must be stated in a defendant’s answer or
they can be deemed waived. See Fed. R. Civ. P. 8(c). However, if an
affirmative defense is not listed in Rule 8(c), it is not clear that failure to assert
it in the answer waives it. See Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d
856, 872 (7th Cir. 2012). The more appropriate inquiry in these circumstances
is to inquire whether Reed suffered any prejudice from Columbia’s delay in
asserting the defense. Matthews v. Wis. Energy Corp., Inc., 642 F.3d 565, 570
(7th Cir. 2011).
The Court finds no prejudice here. Reed claims that because of the late
notice of this defense, she has had “neither fair notice of the defense nor a fair
Page 15 of 32
opportunity to conduct proper discovery on the issue.” (Docket #54-1 at 2).
Yet, in February 2016, six months before the close of discovery, Reed deposed
one of Columbia’s employees about its ownership structure. At that time,
Reed learned that Columbia claimed to be a “religious organization” that was
“a ministry of the Roman Catholic Church.” See (Docket #55-8 13:13–15:20).
Thus, Reed has known for a substantial period that the religious exemption
defense was a possibility. She also knew upon filing the suit that she was
suing a hospital at least nominally associated with the Roman Catholic faith.
See Spann v. Word of Faith Christian Ctr., 589 F. Supp. 2d 759, 763–64 (S.D.
Miss. 2008). Further, in responding to Columbia’s motion, Reed reveals that
during discovery she obtained and studied the articles of incorporation and
governing documents for the relevant organizations.1 In short, she had plenty
of notice and a fair chance to prepare to resist Columbia’s religious
exemption defense. Williams v. Lampe, 399 F.3d 867, 871 (7th Cir. 2005) (“The
purpose of Rule 8(c) is to give the opposing party notice of the affirmative
defense and a chance to rebut it.”); Venters v. City of Delphi, 123 F.3d 956,
968–69 (7th Cir. 1997) (defense waived when raised first in summaryjudgment reply and with no indication that any discovery was taken on it).
Thus, the Court finds that Columbia has not waived the defense and will
deny Reed’s motion to strike the same.
The Court now turns to the merits of the religious exemption defense.
As noted above, the ADA does not apply to “religious organizations or
1
If she did not have the necessary materials for responding to the defense,
she could have sought more time to respond to Columbia’s motion pursuant to
Rule 56(d), but she did not. Fed. R. Civ. P. 56(d)(2) (“If a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts essential
to justify its opposition, the court may. . .allow time to obtain affidavits or
declarations or to take discovery.”).
Page 16 of 32
entities controlled by religious organizations.” 42 U.S.C. § 12187. The statute
does not define what it means to be a “religious organization” or to be
“controlled” by one. See id. The Department of Justice, however, has
explained that
[t]he ADA’s exemption of religious organizations and religious
entities controlled by religious organizations is very broad,
encompassing a wide variety of situations. Religious
organizations and entities controlled by religious organizations
have no obligations under the ADA. Even when a religious
organization carries out activities that would otherwise make
it a public accommodation, the religious organization is exempt
from ADA coverage. Thus, if a church itself operates a day care
center, a nursing home, a private school, or a diocesan school
system, the operations of the center, home, school, or schools
would not be subject to the requirements of the ADA or this
part. The religious entity would not lose its exemption merely
because the services provided were open to the general public.
The test is whether the church or other religious organization
operates the public accommodation, not which individuals
receive the public accommodation’s services.
Religious entities that are controlled by religious organizations
are also exempt from the ADA’s requirements. Many religious
organizations in the United States use lay boards and other
secular or corporate mechanisms to operate schools and an
array of social services. The use of a lay board or other
mechanism does not itself remove the ADA’s religious
exemption. Thus, a parochial school, having religious doctrine
in its curriculum and sponsored by a religious order, could be
exempt either as a religious organization or as an entity
controlled by a religious order, even if it has a lay board. The
test remains a factual one—whether the church or other
religious organization controls the operations of the school or
of the service or whether the school or service is itself a
religious organization.
28 C.F.R. Part 36, App. C; see also Chevron U.S.A., Inc. v. Natural Res. Def.
Page 17 of 32
Council, Inc., 467 U.S. 837, 844 (1984) (courts should generally accord
substantial deference to an executive department’s interpretation of the
statutes it administers).
No appellate court has yet construed Title III’s religious exemption.
Cole v. St. Francis Med. Ctr., Case No. 1:15 CV 98 ACL, 2016 WL 7474988, at
*5 (E.D. Mo. Dec. 29, 2016). However, this Court has had occasion to consider
the issue. In Rose v. Cahee, 727 F. Supp. 2d 728 (E.D. Wis. 2010), the Court
found that Agnesian Healthcare, Inc. (“Agnesian”), a not-for-profit, tax
exempt healthcare corporation was covered by the religious exemption. Id.
at 747. Several factors influenced the Court’s decision. First, the religious
exemption appears to be very broad, since Congress extended it not only to
religious organizations but also to those entities controlled by religious
organizations. Id. Second, an order of Catholic nuns sponsored Agnesian and
occupied “a primary role in the corporation’s corporate governance
structure.” Id. The order made up one class of corporate membership, and
only that class had the authority to amend or repeal the corporation’s articles
of incorporation and bylaws. Id. at 747–48.
Third, while the nuns were not involved in “the daily operation and
decision-making of Agnesian’s individual healthcare facilities,” this was
insufficient to defeat the exemption. Id. As the Court explained,
[a] religious organization need not directly determine the rates
for medical services or directly engage in the hiring and firing
of employees to control a healthcare institution. Indeed, the
regulations specify that many religious organizations use lay
boards and other secular mechanisms to operate social service
entities, and that such “use of a lay board or other mechanism
does not itself remove the ADA’s religious exemption.” 28
C.F.R. Part 36, App. B. Requiring a religious organization to be
involved in the daily operations of its social service providers
in order to qualify for the § 12187 religious organization
Page 18 of 32
exemption undermines the intended broad application of the
statute.
Id. at 748. Thus, Agnesian qualified for the religious exemption because it was
controlled by a religious organization. Id.; see also Marshall v. Sisters of Holy
Family of Nazareth, 399 F. Supp. 2d 597, 598 (E.D. Pa. 2005) (grade school
operated by Roman Catholic nuns exempt when curriculum included bible
study and Christian principles, and school was listed in “The Official Catholic
Directory”); White v. Denver Seminary, 157 F. Supp. 2d 1171, 1173 (D. Colo.
2001) (seminary exempt when its purpose was to train students for Christian
ministry, faculty and students required to assert a statement of religious
beliefs and participate in religious curriculum, and majority of board of
trustees had to be members of the Conservative Baptist Association); Cole,
2016 WL 7474988, at *6 (hospital exempt because it was under the jurisdiction
of local Catholic diocese, “participate[d] in the health care mission of the
Roman Catholic Church,” was required to adhere to the “doctrine of the
Roman Catholic Church,” and board members and bylaws changes had to be
approved by the bishop of the diocese); but see Sloan v. Cmty. Christian Day
Sch., LLC, No. 3–15–0551, 2015 WL 10437824, at *3 (M.D. Tenn. Dec. 11, 2015)
(Christian school not exempt when school was not owned, affiliated with, or
financially supported by any recognized religious group but instead was
owned “by a [lay] couple who felt called to start a Christian school”).
This Court’s decision in Rose controls the outcome here. Columbia has
traced its lineage back to the Vatican. The corporate entities that exist in
between are overseen in significant part by religious orders or members of
religious orders. Those entities exercise control, one over the other, in
accordance with Catholic dogma, as does Columbia itself. See Cole, 2016 WL
7474988, at *6. And although Columbia respects the non-sectarian traditions
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of Columbia Health System, Inc., its bylaws provide that it will act in
accordance with Catholic doctrine and that its mission is to serve in the health
ministry of the Catholic Church. Further, Columbia was listed in “The Official
Catholic Directory” for the relevant period, and it declares itself to be “a
Catholic facility.” See Marshall, 399 F. Supp. 2d at 598. Columbia is, at a
minimum, a “pervasively religious organization.” White, 157 F. Supp. 2d at
1174.
Reed’s response to all of this, as described previously, is to try and
poke holes in Columbia’s Catholic pedigree. Throughout her submissions,
Reed points to incorrect dates, missing signatures, documents that look like
drafts, and webpages that suggest that certain of the entities might have
existed in different forms during March 2012. See (Docket #55 ¶¶ 16–35).
These types of disputes are trivial and generally raise only “metaphysical”
doubt as to Columbia’s proffered facts regarding its ownership and control.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986);
Marshall, 399 F. Supp. 2d at 606 (rejecting the plaintiff’s attempt to “conjure
a nonexistent material dispute,” including that the school employs lay
teachers and was not subject to the archdiocese’s rules).
Reed makes more substantive challenges to Columbia’s ownership,
but they still fall short. First, although it is true that Ascension Health, one of
the co-sponsors of Columbia St. Mary’s, Inc., did not have religious orders as
corporate members, members of religious orders occupied many seats on the
board of trustees. Further, its parent company, Ascension Health Alliance,
had members of religious orders on the board as well. Tracing back one step
further reveals even more members of religious orders involved with the
oversight of Ascension Health Ministries. If Reed’s argument is that this is
too attenuated a religious connection for Columbia to rely upon, neither the
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ADA, the relevant regulations, nor the case law erect bright-line rules for the
religious exemption analysis. Whether there are members of religious orders
on Columbia’s own board of directors is relevant, but not dispositive.
Second, Reed emphasizes Columbia’s non-sectarian affiliations with
her evidence regarding Columbia Health System, Inc. That entity is not itself
a religious organization and is not managed by members of religious orders.
In this way, Reed’s case is similar to Rose, where the plaintiff showed that the
religious entities that controlled Agnesian shared power with other corporate
members. Rose, 727 F. Supp. 2d at 747. But as explained in the ADA’s
accompanying regulations, even a substantial degree of involvement of nonsectarian persons or entities is not enough to take Columbia outside the
protection of Title III’s religious exemption. 28 C.F.R. Part 36, App. C (the
“use [of] lay boards and other secular or corporate mechanisms to operate”
an entity “does not itself remove the ADA’s religious exemption”).
More importantly, Columbia Health System, Inc. does not exercise
primary control over Columbia St. Mary’s, Inc. That power lay with
Ascension Health, which has direct religious oversight. Ascension Health can
approve Columbia St. Mary’s, Inc.’s mission statement, approve changes to
its bylaws, appoint or remove its directors, including the chairman, and
control major aspects of its finances. By contrast, Columbia Health System,
Inc. exercises some similar powers, but only insofar as changes to governing
structure or membership affect its interest in Columbia or in Columbia St.
Mary’s, Inc. Review of Columbia St. Mary’s, Inc.’s governing documents
reveals that Ascension Health undoubtedly enjoys broader powers than
Columbia Health System, Inc. See (Docket #50-19 at 6–7). While the precise
contours of each entity’s control may be subject to debate, it is enough to say
that the level of non-sectarian involvement in Columbia St. Mary’s, Inc.’s
Page 21 of 32
governance does not displace the “primary role” that the Catholic Church
occupies therein. Rose, 727 F. Supp. 2d at 747.
Finally, the fact that Columbia St. Mary’s, Inc. does not itself have a
religious purpose does not undermine Columbia’s religious connection. The
company’s bylaws speak of adherence to Catholic teachings regarding what
procedures may be performed. Like its subsidiary, Columbia St. Mary’s, Inc.’s
respect for non-sectarian involvement in its governance does not mean that
it cannot be controlled by a religious organization. The undisputed facts
demonstrate that the two principles can and do operate side-by-side in this
instance.
For these reasons, the Court concludes that Columbia falls within Title
III’s religious exemption because it is “controlled by a religious organization.”
42 U.S.C. § 12187. As a result, the Court must dismiss all of Reed’s claims
brought pursuant to the ADA.
4.2
Rehabilitation Act Claims
Section 504 of the Rehabilitation Act provides that “[n]o otherwise
qualified individual with a disability. . .shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving
Federal financial assistance[.]” 29 U.S.C. § 794(a). For cases other than those
involving employment discrimination, the Rehabilitation Act incorporates
“[t]he remedies, procedures, and rights set forth in title VI of the Civil Rights
Act of 1964 (42 U.S.C. 2000d et seq.).” Id. § 794a(2); Reed v. Columbia St. Mary’s
Hosp., 782 F.3d 331, 337 (7th Cir. 2015). A plaintiff bringing a Rehabilitation
Act claim can show that she was intentionally discriminated against or that
the defendant failed to afford her a reasonable accommodation for her
disability. Wis. Cmty. Serv. v. City of Milwaukee, 465 F.3d 737, 747 (7th Cir.
Page 22 of 32
2006); see also Alexander v. Choate, 469 U.S. 287, 300–01 (1985). Reed advances
both theories in this case. See (Docket #37 ¶¶ 28–39).2
Yet, under either theory—and unique to claims under the
Rehabilitation Act—the plaintiff must show that she was subjected to
discrimination “solely by reason of” her disability. 29 U.S.C. § 794(a); Wis.
Cmty. Servs., 465 F.3d at 751; Mallett v. Wis. Div. of Vocational Rehab., 130 F.3d
1245, 1257 (7th Cir. 1997) (“‘The word solely provides the key: the
discrimination must result from the handicap and from the handicap alone.’”)
(quoting Johnson by Johnson v. Thompson, 971 F.2d 1487, 1493 (10th Cir. 1992)).
The “Rehabilitation Act forbids discrimination based on stereotypes about a
handicap, but it does not forbid decisions based on the actual attributes of the
handicap.” Anderson v. Univ. of Wis., 841 F.2d 737, 740 (7th Cir. 1988). Its
purpose is to protect “handicapped individuals from deprivations based on
prejudice, stereotypes, or unfounded fear, while giving appropriate weight
to such legitimate concerns as. . .avoiding exposing others to significant
health and safety risks.” School Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 287
(1987). By contrast, a claim under the ADA can be maintained if
discrimination was merely a motivating factor for the defendant’s action. See
Alfano v. Bridgeport Airport Servs., Inc., No. 04–CV–1406, 2006 WL 1933275, at
2
The Act also contemplates a cause of action for retaliation after an
individual asserts her rights under the Act. Reed, 782 F.3d at 337. In reviewing her
original complaint, the Seventh Circuit found that Reed could maintain such a
claim. Id.; see also (Docket #1). She omitted this claim from her amended complaint,
however. She makes a retaliation claim only under the ADA. (Docket #37 ¶¶
49–51). To the extent that the Court of Appeals generously construed Reed’s
original complaint, which she drafted on her own without the assistance of
counsel, to contain a Rehabilitation Act retaliation claim, this Court cannot
overlook that she and her counsel (which the Court recruited for her after remand)
did not try to make such a claim in her amended complaint. In the end, the failure
to plead the retaliation claim is immaterial, since it would fail for the same reasons
as her existing Rehabilitation Act claims.
Page 23 of 32
*3 (D. Conn. July 12, 2006) (“[O]ne of the few differences between the
Rehabilitation Act and the [ADA] is the Rehabilitation Act’s limitation to
denial of benefits ‘solely’ by reason of disability, whereas the ADA covers
situations in which discrimination on the basis of disability is one factor, but
not the only factor, motivating an adverse employment action.”) (internal
quotation marks omitted).
Some decisions downplay this important distinction between the
Rehabilitation Act and other, similar statutes like the ADA. See Wagoner v.
Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (calling a Rehabilitation Act claim
“functionally identical” to an ADA claim); Henrietta D. v. Bloomberg, 331 F.3d
261, 272 (2d Cir. 2003). Others embrace it. See Soledad v. U.S. Dep’t of Treasury,
304 F.3d 500, 505 (5th Cir. 2002) (“Liability can only be found when the
discrimination was ‘solely by reason of her or his disability,’ not when it is
simply a ‘motivating factor.’”). In a recent opinion, the Sixth Circuit, sitting
en banc, addressed the issue squarely, finding that
[the Rehabilitation Act] bars differential treatment “solely by
reason of” an individual’s disability; the [ADA] bars
differential treatment “because of” the individual’s disability.
No matter the common history and shared goals of the two
laws, they do not share the same text. Different words usually
convey different meanings, and that is just the case here. A law
establishing liability against employers who discriminate
“because of” an employee’s disability does not require the
employee to show that the disability was the “sole” cause of
the adverse employment action.
Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 315–17 (6th Cir. 2012)
(en banc). The Fourth Circuit has made the same observation: “Despite the
overall similarity of [the ADA] and [the Rehabilitation Act], the language of
these two statutory provisions regarding the causative link between
Page 24 of 32
discrimination and adverse action is significantly dissimilar.” Baird v. Rose,
192 F.3d 462, 469 (4th Cir. 1999); see also McNely v. Ocala Star–Banner Corp., 99
F.3d 1068, 1073–77 (11th Cir. 1996).
Columbia does not challenge whether Reed is disabled, whether it
knew of her disabilities, or whether it could have provided additional
accommodations to her. Instead, Columbia argues that Reed cannot establish
that it discriminated against her solely by reason of her disability. Reed alleges
that, throughout her stay at Columbia, she was subjected to systematic
discrimination because of her communication and personality disorders.
Columbia asserts that its actions stemmed from the fact that Reed was an
unruly, demanding, and uncooperative patient, not because of her disabilities.
The parties focus on Reed’s encounter with Miller on the morning of
March 11, 2012, and although there are certainly other aspects to her claims,
March 11 is the focal point. Columbia presents the testimony of Miller and
Fry that they placed Reed in seclusion that morning because of her disruptive
behavior and refusing to follow instructions. Reed disagrees with their
version of events, arguing instead that Miller overreacted to Reed’s request
for her Dynavox, her request to speak to her case manager, or her act of
spilling coffee on herself. Critically, however, she admits that she spilled her
coffee and thereafter fell to the floor screaming. She further concedes that
Miller told her that she could not remain on the floor in the middle of the
hallway. (Docket #55 ¶ 43).
These concessions are fatal to her claim. In the employment context,
the Seventh Circuit has explained that
[a]n employer may fire an employee for engaging in
unacceptable workplace behavior without violating the ADA
(or the Rehabilitation Act), even if the behavior was
precipitated by a mental illness. The Rehabilitation Act protects
Page 25 of 32
qualified employees from discrimination ‘solely by reason of’
disability, meaning that if an employer fires an employee for
any reason other than that she is disabled—“even if the reason
is the consequence of the disability”—there has been no
violation of the Rehabilitation Act.
Brumfield v. City of Chicago, 735 F.3d 619, 630–31 (7th Cir. 2013) (internal
citations omitted) (quoting Matthews v. Commonwealth Edison Co., 128 F.3d
1194, 1196 (7th Cir. 1997)); see also Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047,
1052–53 (5th Cir. 1998) (employee could be fired for violent outbursts
although precipitated by PTSD).
Brumfield’s reasoning applies directly to this case. It is undisputed that
Reed fell to the floor screaming after spilling coffee on herself and that Miller
instructed her that she could not remain on the floor. Assuming that the rest
of her story is true—that Miller brusquely carried her to a seclusion room and
left her there for two hours—it is indisputable that some portion of his
conduct was motivated by a need to stop Reed from disturbing other patients
and from laying on the floor. Brumfield teaches that even if Reed’s spill and
fall were a manifestation of her TD, the result was a nondiscriminatory basis
on which Miller could act.
Additionally, because of the stringent causation standard applied to
Rehabilitation Act claims, it does not matter whether Miller or Fry followed
Columbia’s procedures for secluding Reed—or indeed, whether Columbia
had any appropriate procedures. The uncontroverted facts establish that
Reed’s disruptive conduct motivated their actions, and there the inquiry must
end. See Johnson, 971 F.2d at 1493; Soledad, 304 F.3d at 505.
The same principle forecloses Reed’s claims about the rest of
Columbia’s conduct during her stay. This includes: (1) Columbia’s refusal to
show Reed her medication records; (2) Columbia’s refusal to allow Reed to
Page 26 of 32
use the telephone; (3) Columbia’s refusal to allow Reed to see a chaplain; (4)
Columbia’s refusal to allow her the use of her Dynavox at various times; and
(5) her security escort at discharge. (Docket #37 ¶¶ 36–39). There is no dispute
that throughout her time at Columbia, Reed engaged in loud, disruptive
behaviors and that she was oftentimes uncooperative in her plan of care. She
attributes her conduct to her TD and other disorders, but the fact remains that
Columbia responded to her actions, not solely to her disabilities. It matters
not whether those actions were precipitated by her disabilities. Brumfield, 735
F.3d at 630–31.
This Court’s decision in Rose, which also involved a Rehabilitation Act
claim, serves as a useful contrast. There, the plaintiff, who had HIV, was
referred to a surgeon for removal of her gallbladder. Rose, 727 F. Supp. 2d at
734. She testified that when she met with the surgeon, he refused to operate
on her because of the risk of exposure to her HIV. Id. The doctor proffered no
other basis for his refusal other than her disease. Id. at 749. The Court found
that a reasonable jury could conclude, based on this evidence, that the
plaintiff suffered discrimination solely on the basis of her HIV. Id. at 748.
Unlike Rose, here Columbia has amassed a substantial body of
evidence showing that Reed’s conditions caused her to be loud, unruly, and
uncooperative. Columbia’s actions were motivated, at least in part, at
controlling this behavior. For instance, although Reed complains that Fry
unilaterally decided that she should not be given her Dynavox upon request,
he did so because her behavior was poor. Even if he was wrong to deny her
the machine for that reason, this undisputed evidence establishes that his
actions were not based solely upon her disabilities. Likewise, assuming
Columbia staff ignored Reed’s warning that she was allergic to psychotropic
medications, there is no evidence that this was done solely because of her
Page 27 of 32
disabilities. The same goes for her allegations about being refused access to
her medication records, the telephone, and the hospital chaplain, as well as
her discharge escort. In short, she has not shown that Columbia’s decisions
in these instances were based only on stereotypes about her disabilities rather
than on Reed’s behavior. Arline, 480 U.S. at 287.
Viewed from the proper perspective, Reed’s claims are, at best, for
medical malpractice or violation of her Wisconsin statutory rights, not
discrimination. The Rehabilitation Act, like the ADA, “does not create a
remedy for medical malpractice.” Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.
1996); Grzan v. Charter Hosp. of N.W. Ind., 104 F.3d 116, 121, 123 (7th Cir.
1997), abrogated on other grounds, Amundson ex rel. Amundson v. Wis. Dep’t of
Health Servs., 721 F.3d 871 (7th Cir. 2013). That Reed is disabled does not
automatically make Columbia’s alleged misconduct discriminatory. Resel v.
Fox, 26 F. App’x 572, 577 (7th Cir. 2001); see also Casimir v. Ill. Dep’t of Public
Aid, 202 F.3d 272, 1999 WL 828601, at *2 (7th Cir. 1999) (whether plaintiff was
wrongfully denied food stamps had nothing to do with his disability and
was, at best, a possible violation of Illinois law, not the ADA). “[E]ven if the
decision[s]” of Columbia’s staff were “reprehensible and constituted
malpractice,” the Rehabilitation Act affords no remedy absent a showing that
discrimination was the sole basis of the decisions. McGugan v. Aldana-Bernier,
752 F.3d 224, 232 (2d Cir. 2014).3
Because no reasonable factfinder could conclude that Columbia
3
Reed relies heavily on the Court of Appeals’ prior opinion in this case, but
that reliance is misplaced. In reviewing Reed’s initial complaint, the Seventh
Circuit addressed Reed’s allegation that she asked for her Dynavox and was then,
without provocation, thrown into seclusion. See Reed, 782 F.3d at 337; (Docket #1
¶¶ 10–11). The undisputed facts tell a different story, one that does not involve
discrimination based solely on Reed’s disabilities. See id. (“Whether evidence will
support Reed’s claim[s] is a question for later in the case.”).
Page 28 of 32
discriminated against Reed based solely on her disabilities, the Court is
constrained to dismiss her Rehabilitation Act claims.
4.3
Supplemental Jurisdiction
The Court has dismissed each of Reed’s claims arising under federal
law. Because no federal claims remain in this case, there is a presumption that
the Court will relinquish supplemental jurisdiction over her Wisconsin statelaw claims. See 28 U.S.C. § 1367(c)(3) (a district court may decline to exercise
supplemental jurisdiction over a state-law claim if it “has dismissed all claims
over which it has original jurisdiction”); Al’s Serv. Ctr. v. BP Prods. N. Am.,
Inc., 599 F.3d 720, 727 (7th Cir. 2010) (“When all federal claims in a suit in
federal court are dismissed before trial, the presumption is that the court will
relinquish federal jurisdiction over any supplemental state-law claims.”). The
Seventh Circuit has identified certain circumstances that may overcome that
presumption, including: (1) when the statute of limitations has run on the
state-law claims, precluding the filing of a separate suit in state court; (2)
when substantial judicial resources have already been committed, so that
sending the case to another court will cause a substantial duplication of
effort; or (3) when it is absolutely clear how the state-law claims can be
decided. Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514–15 (7th Cir.
2009). Even when such circumstances are present, the decision to exercise
supplemental jurisdiction is still committed to the Court’s discretion. Disher
v. Info. Res., Inc., 873 F.2d 136, 140 (7th Cir. 1989).
Apparently confident that her federal claims would survive, Reed
devotes no argument to why the Court should retain jurisdiction over her
state-law claims. On this basis alone, the Court could find that the
presumption in favor of dismissal has not been rebutted. Nevertheless, the
Court’s independent consideration of the factors from Sharp Electronics also
Page 29 of 32
adequately demonstrates that dismissal is appropriate. First, the parties have
not cited and the Court has not located definitive authority on which statute
of limitations applies to her Wisconsin Mental Health Act claims, so it cannot
say that a later attempt to file those claims in a Wisconsin court will be
barred.
Further, although substantial time and resources have been committed
to this litigation thus far, the Court has not considered the merits of the statelaw claims. Those claims arise under a unique statutory scheme designed to
protect certain rights of medical patients. See Wis. Stat. § 51.61. Such claims
are quite different from Reed’s federal disability discrimination claims in
scope, purpose, and substantive standards. Thus, the effort spent deciding the
federal claims does not translate usefully to the state-law claims. See RWJ
Mgmt. Co., Inc. v. BP Prods. N.A., Inc., 672 F.3d 476, 480 (7th Cir. 2012).
Moreover, the law as it relates to the Wisconsin claims has not been briefed,
so the Court cannot discern whether the record is sufficiently developed to
adjudicate them.
Additionally, the mere fact that this case is close to its trial date is not
enough to require retention of jurisdiction. Id. at 481–82. Nor is the case’s age
dispositive; although this action is over two years old, it should be noted that
nine months of its life was spent on appeal to the Seventh Circuit. Compare id.
at 481 (affirming decision to decline supplemental jurisdiction in 15-monthold case), with Miller Aviation v. Milwaukee Cnty. Bd. of Supervisors, 273 F.3d
722, 726 (7th Cir. 2001) (reversing decision to decline supplemental
jurisdiction where case was five years old). Since it does not appear that any
circumstances exist warranting the continued exercise of jurisdiction over
Reed’s state-law claims, those claims will be dismissed without prejudice.
Page 30 of 32
5.
CONCLUSION
As detailed above, Columbia enjoys immunity from the requirements
of Title III of the ADA under the statute’s religious exemption. All of Reed’s
ADA claims must, therefore, be dismissed. Further, the undisputed facts
show that Columbia’s alleged mistreatment of Reed during her stay in March
2012 was not premised solely on Reed’s disability. Consequently, she cannot
maintain claims under the Rehabilitation Act. Finally, as no claims arising
under federal law remain in this case, the Court will exercise its discretion to
dismiss Reed’s state-law claims without prejudice.
Accordingly,
IT IS ORDERED that Defendant Columbia St. Mary’s Hospital’s
motion for summary judgment (Docket #49) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that Plaintiff Linda Reed’s motion to
strike Columbia’s motion for summary judgment (Docket #51) be and the
same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff Linda Reed’s motion to
restrict documents (Docket #53) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff Linda Reed’s motion to
strike Columbia’s religious exemption defense (Docket #54) be and the same
is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff Linda Reed’s first, second,
third, fourth, and fifth claims in her First Amended Complaint (Docket #37),
arising under the ADA and the Rehabilitation Act, be and the same are
hereby DISMISSED with prejudice;
IT IS FURTHER ORDERED that Plaintiff Linda Reed’s sixth, seventh,
and eighth claims in her First Amended Complaint (Docket #37), arising
Page 31 of 32
under the Wisconsin Mental Health Act, be and the same are hereby
DISMISSED without prejudice; and
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 15th day of February, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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