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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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In addition to arguing that Plaintiff failed to show that he sought medical care from a federally funded health program, Defendant Emergency Physicians argues that Plaintiff’s Count I should be dismissed because he failed to show that Emergency Physicians took an adverse action against him or treated him differently because of his transgender status. (See Def. Emergency Physicians’ Mem. at 8–9 [Doc. No. 13].) Specifically, Defendant argues that Rumble must establish that Emergency Physicians, through its employee, Dr. Steinman, had “discriminatory intent.” (See id. at 10.) Defendant’s basis for their argument is an Eighth Circuit case interpreting the intent standard required for a Title IX sex discrimination claim. (See id. at 9.) In contrast, Plaintiff argues that the Court need not determine whether the Title IX Moreover, the Court notes that the fact that the OCR initiated an investigation of an emergency department in New Orleans, Louisiana, as part of its enforcement of Section 1557, demonstrates that at least one emergency room facility, which likely received Medicare and Medicaid payments from the federal government, qualified as an entity that was subject to the anti-discrimination mandate of Section 1557. (See Pl.’s Mem. at 10 n.3 [Doc. No. 25].) CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 30 of 63 standard should apply to Plaintiff’s Section 1557 claim. (See Pl.’s Mem. at 34 [Doc. No.

25].) Alternatively, Plaintiff argues that even if the Court were to apply the Title IX standard, Rumble’s Complaint meets the intent standard. (See id.) The Court agrees with Plaintiff that it need not decide whether the Title IX standard applies to Rumble’s Section 1557 claim at this stage in the litigation. Rather, the Court holds that even if the Title IX standard applies, Plaintiff alleges a plausible Section 1557 claim.

–  –  –

Defendant Emergency Physicians contends that Rumble failed to plead that Dr.

Steinman’s actions amount to an “adverse action” or “differential treatment” that is prohibited by Section 1557. (See Def. Emergency Physicians’ Mem. at 9 [Doc. No. 13].) The Court disagrees. According to Section 1557, a covered entity, such as Emergency Physicians, may not exclude an individual from being a patient in the hospital, deny the individual the benefits of being a patient, or subject the individual to discrimination, on the basis of sex. See 42 U.S.C. § 18116. Therefore, in order for Dr. Steinman’s action to rise to an actionable level, he must have either excluded Rumble from receiving medical care at the hospital, denied Rumble the benefits of medical care at the hospital, or otherwise discriminated against him. See id. The Court finds that Plaintiff alleges facts sufficiently demonstrating that Dr. Steinman discriminated against Rumble, and denied Rumble the benefits of medical care that he was entitled to as a patient in the emergency room at Fairview Southdale Hospital.

Dr. Steinman allegedly treated Rumble with hostility and aggression while asking him pointed questions that were allegedly meant to embarrass Rumble. (See Compl. CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 31 of 63 39–40 [Doc. No. 1].) These questions included asking Plaintiff whether he was having sex with men or women, engaging in penetration, and whether he had ever had sex with objects. (See id.) Dr. Steinman also allegedly made disparaging comments about Rumble’s use of hormones, and Dr. Steinman aggressively communicated that he was unsure whether Rumble’s genital inflammation was caused by the hormones. (Id. 44.) Therefore, although Dr. Steinman did not expressly “mock[] or criticize[]” Rumble’s transgender status (cf. Def. Emergency Physicians’ Mem. at 11 [Doc. No. 13]; Def.

Emergency Physicians’ Reply at 3 [Doc. No. 29]), Plaintiff plausibly alleges that Dr.

Steinman’s comments were made as indirect, offensive references about Plaintiff’s gender identity.

Plaintiff also alleges facts that demonstrate Dr. Steinman conducted an “assaultive exam.” (See Pl.’s Mem. at 32 [Doc. No. 25].) Specifically, Rumble alleges that although he was crying and demanded Dr. Steinman to stop the painful exam, twice, Dr. Steinman continued to forcefully jab at Rumble’s genitals causing Rumble to continue to cry and scream in pain. (See Compl. 43–45 [Doc. No. 1].) In fact, it was not until Rumble’s mother demanded and yelled for Dr. Steinman to stop jabbing at her son’s genitals that Dr. Steinman’s allegedly assaultive exam ended. (Id. 46.) At the conclusion of the physical exam, Dr. Steinman then allegedly left the room without explaining to Rumble and his mother what the next steps entailed, such as whether or not Rumble would be admitted to the hospital. (Id. 47.) Plaintiff’s allegations about the exam are not “subjective impressions of Dr. Steinman’s manner.” (Cf. Def. Emergency Physicians’ Mem. at 11 n.2 [Doc. No. 13].) Rather, these allegations describe an objective series of CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 32 of 63 events, in which Dr. Steinman ignored Plaintiff’s pleas for Dr. Steinman to stop the exam.

Read as a whole, these facts demonstrate that the alleged mistreatment rises to the level of the denial of benefits of appropriate medical care. (See Pl.’s Mem. at 24 [Doc.

No. 25].) “Whether gender-oriented conduct rises to the level of actionable ‘harassment’... ‘depends on a constellation of surrounding circumstances, expectations, and relationships.’” Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S.

629, 651 (1999) (citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998)). Generally, the two parties in a doctor-patient relationship are not on equal footing, as a doctor normally has significantly more experience and expertise in his position of authority. The specific circumstances surrounding Rumble’s interaction with Dr. Steinman also supports the Court’s finding. When any individual permits a doctor to conduct a genital exam, the patient is in a physically vulnerable position, which the doctor controls. Here, Rumble had a reasonable expectation that his treating doctor at the emergency room would not physically “assault” him, or at the very least would stop an intrusive and painful genital exam when asked to stop.

Defendant Emergency Physicians contends that because Rumble was eventually admitted to the hospital and received subsequent medical care, then Dr. Steinman must not have denied Rumble the benefits of medical care. (See Def. Emergency Physicians’ Reply at 3 [Doc. No. 29].) The Court disagrees. Section 1557 does not require the plaintiff to demonstrate that he received no medical care or attention. (Cf. id.) Rather, the statute simply requires that the plaintiff demonstrate that he was denied the benefits of CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 33 of 63 a health program or activity, or discriminated against. Here, Plaintiff meets this burden.

Defendant erroneously argues that in order for Plaintiff’s claim to survive dismissal, the Court must “invent facts not alleged by Plaintiff.” (Cf. id. at 4–5.) In support of this proposition Defendant cites this Court’s order in Pittman v. Jesson, No.

12-cv-1410 (SRN/TNL), 2014 WL 4954286, at *11 (D. Minn. Sept. 30, 2014). In Pittman, this Court held that the patient-plaintiff’s race discrimination claim failed against one of the defendants because the plaintiff did not allege that this defendant treated white and black patients differently. See id. In fact, the plaintiff did not allege that this defendant treated him adversely in any way, or treated other black patients unfavorably. See id. In contrast, here, Rumble sufficiently alleges detailed examples of Dr. Steinman’s discriminatory or unfavorable conduct as evidenced by his allegedly rude remarks, and failure to heed Plaintiff’s requests to stop the painful exam. Cf. Folger v.

City of Minneapolis, F. Supp. 3d, No. 13-cv-3489 (SRN/JJK), 2014 WL 4187504, at *6, 10 (D. Minn. Aug. 22, 2014) (dismissing the plaintiffs’ Fair Housing Act and Equal Protection Clause discrimination claims because the plaintiffs failed to allege “any factual basis” for the defendant’s alleged “animus”).

Moreover, the Court notes that Plaintiff need not allege facts demonstrating that Dr. Steinman “treated other patients who presented with similar symptoms and medical conditions differently.” (Cf. Def. Emergency Physicians’ Mem. at 11 [Doc. No. 13].) At this stage in the proceeding, without the benefit of discovery, Plaintiff does not have knowledge of how Dr. Steinman treated other patients in the emergency room with similar conditions. Thus, it would be unreasonable for the Court to require Plaintiff to CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 34 of 63 plead comparative evidence in his Complaint. Accordingly, Plaintiff sufficiently alleges that Emergency Physicians, through Dr. Steinman, took an “adverse action” against him.

–  –  –

Defendant Emergency Physicians also argues that Rumble failed to allege facts showing that Dr. Steinman discriminated against Rumble on the basis of Rumble’s sex.

(See Def. Emergency Physicians’ Mem. at 10 [Doc. No. 13].) Defendant relies on the Eighth Circuit’s holding in Wolfe v. Fayetteville, Arkansas Sch. Dist., 648 F.3d 860, 865 (8th Cir. 2011) to support its contention that Plaintiff must prove that Dr. Steinman intended to discriminate against Rumble. (See Def. Emergency Physicians’ Mem. at 9 [Doc. No. 13].) Likely, Defendant relies on Wolfe because Plaintiff alleges discrimination on the basis of sex, and Wolfe involves the Eighth Circuit’s analysis of Title IX, a civil rights statute that prohibits discrimination on the basis of sex. See 20 U.S.C. § 1681(a).

According to Wolfe, a Title IX plaintiff is “legally required to show” that the defendant “intended to discriminate against him ‘on the basis of sex,’ meaning the harassment was motivated by either [the plaintiff’s] gender or failure to conform with gender stereotypes.” See 648 F.3d at 867.

Even if Plaintiff was required to prove that Dr. Steinman intended to harass Rumble because of Rumble’s transgender status, or Rumble’s failure to conform with gender stereotypes, Plaintiff plausibly alleges facts demonstrating Dr. Steinman’s requisite intent. As one district court explained, “[a] record of disparate treatment and unprofessional behavior directed at a plaintiff may constitute evidence of discriminatory CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 35 of 63 intent.” See Pierce v. President and Fellows of Harvard College, 994 F. Supp. 2d 157, 163 (D. Mass. 2014) (denying summary judgment because a jury could infer discriminatory intent from the defendants’ unprofessional behavior and the defendants’ inconsistent explanations for the treatment plaintiff received). Here, the alleged manner in which Dr. Steinman treated Plaintiff, at a minimum, constitutes “unprofessional behavior,” from which a factfinder could infer discriminatory intent.

The Court finds that (1) the alleged questions that Dr. Steinman asked and the comments he made about Rumble’s hormone use, (2) Dr. Steinman’s alleged tone during questioning, (3) the alleged “assaultive behavior” Dr. Steinman subjected Rumble to during the physical exam, and (4) the medical bill Rumble received after his hospital visit, sufficiently “nudge[]” Rumble’s Section 1557 claim “across the line from conceivable to plausible,” and plausibly demonstrate Dr. Steinman’s discriminatory intent. See Twombly, 550 U.S. at 547.

As the Court noted above, Plaintiff alleges that Emergency Physicians sent Rumble a medical bill after his visit to the hospital that stated, “THE DIAGNOSIS IS INCONSISTENT WITH THE PATIENT’S GENDER.” (Id. 63.) Plaintiff argues that this “insulting bill” further demonstrates how Dr. Steinman’s alleged maltreatment of Rumble was based on Rumble’s gender. (See Pl.’s Mem. at 12 [Doc. No. 25].) Emergency Physicians contends that this bill was likely sent to Plaintiff as a result of confusion on the part of Rumble’s insurer. (See Def. Emergency Physicians’ Mem. at 12 [Doc. No. 13].) Defendant additionally notes that “[a]ny temporary confusion reflected in Plaintiff’s allegation about [Emergency Physicians’] bill is not a material adverse CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 36 of 63 action upon which Plaintiff can base a valid claim of sex discrimination.” (See id.) The Court agrees, but the Court does not read Plaintiff’s Complaint as alleging that the bill forms a separate and distinct factual basis for Rumble’s discrimination claim. Rather, the Court reads Rumble’s Complaint as alleging that the bill merely bolsters Plaintiff’s claim that he was treated adversely because of his gender identity. 10 Reading the facts alleged in the Complaint as a whole, the Court holds that it is plausible that Dr. Steinman mistreated Plaintiff because of Rumble’s gender identity, and the mistreatment was not “random[] poor treatment that anyone might have received.” (See Pl.’s Mem. at 44 [Doc. No. 25].) However, the Court notes that it need not determine whether the Wolfe intent standard applies to Plaintiff’s Section 1557 claim at this stage in the litigation. As the Court explained in more detail above, Section 1557 references Title VI, Title IX, the Age Discrimination Act, and section 504 of the Rehabilitation Act when listing the grounds for which discrimination is prohibited (e.g., race, color, national origin, sex, age, and disability). See 42 U.S.C. § 18116. Therefore, Defendant Emergency Physicians’ insistence that Wolfe’s Title IX standard applies because Plaintiff’s claim is “on the basis of sex” is not necessarily correct. Likely, Congress intended for the same discriminatory intent standard, and overall burden of proof, to apply to a Section 1557 plaintiff’s claim, The Court notes that neither party clearly describes the billing process, nor explains whether, nor how, Emergency Physicians selects the language to include on the bill. Nonetheless, at this stage in the proceedings the Court finds that the facts alleged about the medical bill are sufficient to bolster Plaintiff’s discrimination claims, and push Plaintiff’s claims “across the line from conceivable to plausible.” See Twombly, 550 U.S. at 547.

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