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«CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 1 of 63 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Jakob Tiarnan Rumble, Case No. ...»

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CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 15 of 63 Stat. § 363A.11. (See id. 77–82.) Pursuant to the MHRA, it is an “unfair discriminatory practice:” to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin, marital status, sexual orientation, or sex...

See Minn. Stat. § 363A.11, subd. 1(a)(1) (emphasis added). As noted above, Minnesota law defines “sexual orientation” as “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.” See Minn. Stat. § 363A.03, subd. 44. Plaintiff claims that, under the MHRA, he is protected from discrimination based on his gender identity and transgender status, “since those are subsumed under the statutory definition of ‘sexual orientation.’” (Compl. 79 [Doc. No.

1].) Plaintiff seeks: (1) a permanent injunction requiring that “Defendants adopt practices in conformity with the requirements of [Section 1557] and [the MHRA]” and “prohibiting Defendants from engaging in the practices complained of [by Plaintiff];” (2) compensatory damages “for his physical pain, embarrassment, humiliation, emotional pain and anguish, violation of his dignity, and loss of enjoyment of life;” and (3) punitive damages, “to the extent allowed by state and federal anti-discrimination law.” (See id. at 16.)

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Plaintiff filed his Complaint on June 20, 2014. (See generally Compl. [Doc. No.

1].) On July 18, 2014, Defendant Emergency Physicians filed a Motion to Dismiss [Doc.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 16 of 63 No. 11], with a supporting memorandum [Doc. No. 13]. Similarly, Defendant Fairview filed a Motion to Dismiss [Doc. No. 18] and a supporting memorandum [Doc. No. 20] on July 18, 2014. Plaintiff filed a single response brief in opposition to both Defendants’ motions [Doc. No. 25], with a declaration and several supporting exhibits [Doc. No. 26].

Defendant Fairview then filed a reply brief on October 17, 2014 [Doc. No. 28], and Defendant Emergency Physicians did the same [Doc. No. 29]. The Court heard oral argument on both motions on November 14, 2014. (See Minute Entry [Doc. No. 30].)

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Defendants move to dismiss Plaintiff’s Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. When evaluating a motion to dismiss, the Court assumes the facts in the Complaint to be true and construes all reasonable inferences from those facts in the light most favorable to Plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). However, the Court need not accept as true wholly conclusory allegations, Hanten v. School District of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions Plaintiff draws from the facts pled, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). In addition, the Court ordinarily does not consider matters outside the pleadings on a motion to dismiss. See Fed. R. Civ. P. 12(d). The Court may, however, consider exhibits attached to the complaint and documents that are necessarily embraced by the pleadings, Mattes v.

ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003), and may also consider public CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 17 of 63 records, Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).4 To survive a motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need not contain “detailed factual allegations,” it must contain facts with enough specificity “to raise a right to relief above the speculative level.” Id. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” will not pass muster. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 556.

B. Defendant Emergency Physicians’ Motion to Dismiss Defendant Emergency Physicians argues that the Court should dismiss (1) Plaintiff’s Count I because (a) Rumble failed to allege that he sought medical care from a health program or activity that receives federal funds, and (b) Plaintiff does not allege facts supporting either an adverse action or differential treatment on the basis of sex (see Def. Emergency Physicians’ Mem. at 8, 9 [Doc. No. 13]); and (2) Plaintiff’s Count II because (a) Plaintiff “does not assert facts to demonstrate that [Emergency Physicians] denied Plaintiff any service, facility, privilege, advantage, or accommodation of any public accommodation,” and (b) Plaintiff does “not assert facts to show that [Emergency In his Complaint, Rumble references two publicly-available documents that contain data and statistics about the discrimination transgender and gender nonconforming individuals face in health care settings, and a third document that constitutes federal agency correspondence relating to Section 1557. (See Compl. 19, 73 [Doc.

No. 1].) The Court references these documents as needed throughout the Order.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 18 of 63 Physicians] discriminated against Plaintiff because of Plaintiff’s sexual orientation and gender identity” (see id. at 13–14.) The Court disagrees.

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To the Court’s knowledge, this is the first case that requires interpretation of Section 1557. As this is a matter of first impression, the canons of statutory interpretation guide the Court’s analysis. Statutory interpretation begins with the statute’s “plain language.” See United States v. Cacioppo, 460 F.3d 1012, 1016 (8th Cir.

2006); Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (explaining that when a “statute’s language is plain,” courts must enforce it “according to its terms.”). “Where the language is plain, [the Court] need inquire no further.” Cacioppo, 460 F.3d at 1016 (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)). In other words, if the statutory text is unambiguous, then the Court need not look to an agency’s interpretation of the statute, nor look to the statute’s legislative history. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984);

Horras v. Leavitt, 495 F.3d 894, 900 (8th Cir. 2007); Degnan v. Sebelius, 658 F. Supp. 2d 969, 970–71 (D. Minn. 2009). However, “[i]f the language of the statute is ambiguous or silent, the issue for the court is whether the agency’s interpretation of the statute is a reasonable one.” See Degnan, 658 F. Supp. 2d at 970–71 (citing Smiley v. Citibank, N.A., 517 U.S. 735, 744–45 (1996)).

Section 1557 references and incorporates four different civil rights statutes: Title VI, which prohibits discrimination on the basis of race, color, and national origin; Title IX, which prohibits discrimination on the basis of sex; the Age Discrimination Act, CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 19 of 63 which prohibits discrimination on the basis of age; and section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability. See 42 U.S.C. § 18116.

The parties appear to disagree about the extent to which, or the manner in which, these four civil rights statutes are incorporated into Section 1557. The Court reads Section 1557 as referencing these four statutes to list “the ground[s]” on which discrimination is prohibited in a health care setting. See id. (stating that “an individual shall not, on the ground prohibited under [the four civil rights statutes] be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity”).

Although the four civil rights statutes provide the separate and distinct grounds or bases on which discrimination is prohibited, the Court finds that the language of Section 1557 is ambiguous, insofar as each of the four statutes utilize different standards for determining liability, causation, and a plaintiff’s burden of proof. See 42 U.S.C. § 18116.

Therefore, the Court looks to agency interpretation for some guidance.

The Department for Health and Human Services (“HHS”) is responsible for promulgating regulations pursuant to Section 1557 and the OCR, a sub-agency of HHS, is responsible for enforcing compliance with Section 1557. Here, all parties agree that HHS and/or the OCR have yet to promulgate any rules or regulations interpreting Section 1557. (See Pl.’s Mem. at 9 [Doc. No. 25]; Def. Fairview’s Reply at 3 [Doc. No. 28].) Although the OCR has yet to promulgate formal regulations interpreting Section 1557, Plaintiff emphasizes that in an opinion letter, Leon Rodriguez, the Director of the OCR, stated that Section 1557 of the ACA “extends to claims of discrimination based on CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 20 of 63 gender identity or failure to conform to stereotypical notions of masculinity or femininity” and prohibits “discrimination regardless of the actual or perceived sexual orientation or gender identity of the individuals involved.” (See Barrett Wiik Decl., Ex.

C [Doc. No. 26-1].) In In re Union Pac. R.R. Employment Practices Litig., the Eighth Circuit held that “[a]n agency’s interpretation that is found in an opinion letter...

‘lack[s] the force of law’ and is not entitled to deference under Chevron, 467 U.S. 837 (1984).” See 479 F.3d 936, 943 (8th Cir. 2007). Thus, Defendant Fairview correctly states that Rodriguez’s opinion letter is not controlling on the Court. (See Def.

Fairview’s Reply at 3 [Doc. No. 28].) Nonetheless, the Court may still determine that the OCR’s interpretation is persuasive under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The weight that the Court places on the OCR’s interpretation in its opinion letter is based on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Skidmore, 323 U.S. at 140. Here, the Court finds the OCR’s interpretation of Section 1557 persuasively concludes that Section 1557 protects plaintiffs, like Rumble, who allege discrimination based on “gender identity.” (See Barrett Wiik Decl., Ex. C [Doc. No. 26-1].) 5 As further evidence that Section 1557 applies to plaintiffs alleging discrimination based on gender identity, Plaintiff points to an OCR Bulletin that details two investigations involving alleged sex discrimination. (See Pl.’s Mem. at 9 [Doc. No. 25].) Defendant Fairview argues that the persuasive effect of the two investigations detailed in the bulletin is minimal because the investigations did not develop into administrative or judicial adjudications. (See Def. Fairview’s Reply at 3 [Doc. No. 28].) The Court CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 21 of 63 While the OCR expresses an opinion about whether Section 1557 prohibits discrimination based on gender identity, the agency currently provides no guidance about the evidentiary or causation standards to apply to Section 1557 cases. Defendants contend that different statutory standards should apply depending upon the Section 1557 plaintiff’s class status. For instance, Defendants argue that Title IX standards should apply to Plaintiff because his claim is based on discrimination because of sex. (See Def.

Emergency Physicians’ Mem. at 7–9 [Doc. No. 13]; Def. Fairview’s Mem. at 9–13 [Doc.

No. 20].) Plaintiff disagrees, and claims that the courts should apply a singular, uniform standard, regardless of the plaintiff’s protected class status. (See Pl.’s Mem. at 22–27 [Doc. No. 25].) Although the Court interprets Section 1557 in order to include “every word and clause” in its interpretation, the Court “must not be guided by a single sentence or member of a sentence, but look to the provision of the whole law, and to its object and policy.” Hennepin Cnty. Med. Ctr. v. Shalala, 81 F.3d 743, 748 (8th Cir. 1996) (quoting U.S. National Bank of Oregon v. Independent Insurance Agents, 508 U.S. 439, 455 (1993)). Here, looking at Section 1557 and the Affordable Care Act as a whole, it appears that Congress intended to create a new, health-specific, anti-discrimination cause of action 6 that is subject to a singular standard, regardless of a plaintiff’s protected class disagrees. Rather, it concludes that the OCR’s investigation of these two cases is consistent with the OCR’s opinion letter insofar as the letter stated that Section 1557 “extends to claims of discrimination based on... failure to conform to stereotypical notions of masculinity or femininity.” (See Barrett Wiik Decl., Ex. C [Doc. No. 26-1].) Commentators have noted that Section 1557 “does not merely extend Title VI to CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 22 of 63 status.

Reading Section 1557 otherwise would lead to an illogical result, as different enforcement mechanisms and standards would apply to a Section 1557 plaintiff depending on whether the plaintiff’s claim is based on her race, sex, age, or disability.

For instance, a plaintiff bringing a Section 1557 race discrimination claim could allege only disparate treatment, but plaintiffs bringing Section 1557 age, disability, or sex discrimination claims could allege disparate treatment or disparate impact. See Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (holding that no private right of action exists to enforce disparate impact regulations under Title VI); Alexander v. Choate, 469 U.S. 287, 299 (1985) (“assum[ing] without deciding that § 504 [of the Rehabilitation Act] reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped”); see also Sharif v. N.Y. State Educ. Dep’t, 709 F. Supp. 345, 361 (S.D.N.Y. 1989) (holding that Title IX permits disparate impact suits).

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