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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 37 of 63 regardless of the basis for the alleged discrimination. 11 Accordingly, the Court declines to rule on the intent standard required for a Section 1557 claim at this time, but holds that even if Plaintiff is required to show that Dr. Steinman, or Defendant Emergency Physicians, intended to discriminate against Plaintiff because of his transgender status, then Plaintiff has sufficiently alleged plausible facts satisfying this standard.

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“The MHRA requires the plaintiff to show: (1) membership in a protected class;

(2) denial of services or accommodations; and (3) that the denial occurred because of the plaintiff’s membership in the protected class.” Childs v. Extended Stay of Am. Hotels, No. 10-cv-3781 (SRN/JJK), 2012 WL 2126845, at *5 (D. Minn. June 12, 2012) (citing Monson v. Rochester Athletic Club v. Rochester Athletic Club, 759 N.W.2d 60, 63 (Minn. Ct. App. 2009)); see Minn. Stat. § 363A.11, subd. 1(a)(1). Emergency Physicians argues that Rumble failed to show the second and third elements required to state an actionable MHRA claim.

Specifically, Emergency Physicians contends that the Court should dismiss Plaintiff’s Count II because (a) Plaintiff “does not assert facts to demonstrate that [Emergency Physicians] denied Plaintiff any service, facility, privilege, advantage, or Different intent standards apply to Title IX and the Rehabilitation Act, for example. Although Title IX requires that the defendant intended to discriminate, a Rehabilitation Act plaintiff need only demonstrate that the defendant “fail[ed] to abide by a legally imposed duty,” and need not prove what motivated the defendant’s action. See Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004) (explaining that “it is not the employer’s discriminatory intent in taking adverse employment action against a disabled individual that matters. Rather, discrimination occurs when the employer fails to abide by a legally imposed duty.”).

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 38 of 63 accommodation of any public accommodation,” and (b) Plaintiff does “not asserts facts to show that [Emergency Physicians] discriminated against Plaintiff because of Plaintiff’s sexual orientation and gender identity.” (See Def. Emergency Physicians’ Mem. at 13– 14 [Doc. No. 13].) The Court addresses both of these arguments below.

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Defendant asserts that Plaintiff failed to allege that he was denied access to any place of public accommodation. (See Def. Emergency Physicians’ Mem. at 14 [Doc. No.

13].) Emergency Physicians notes that because Dr. Steinman evaluated Plaintiff in the emergency room, Plaintiff was ultimately admitted to the hospital, and Plaintiff remained hospitalized for seven days, it is clear that Rumble was not “prevented from receiving medical care or otherwise from accessing a public hospital or other facility.” (See id.) The Court disagrees.

The MHRA prohibits the “full and equal enjoyment” of a public accommodation.

See Minn. Stat. § 363A.11, subd. 1(a)(1). According to the Minnesota Supreme Court, an actionable MHRA claim must include “some tangible change in... conditions,” or some “material... disadvantage.” See Bahr v. Capella Univ., 788 N.W.2d 76, 83 (Minn.

2010) (citing Burchett v. Target Corp., 340 F.3d 510, 518 (8th Cir. 2003); Brannum v.

Mo. Dep’t of Corr., 518 F.3d 542, 549 (8th Cir. 2008); and Jones v. Fitzgerald, 285 F.3d 705, 714 (8th Cir. 2002)).

Reading the facts that Rumble alleges as true, Plaintiff was denied the “full and equal enjoyment of humane and dignified care that other patients would have received.” (See Pl.’s Mem. at 38 [Doc. No. 25].) Dr. Steinman allegedly treated Plaintiff CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 39 of 63 inhumanely, not only by allegedly asking Rumble hostile questions meant to embarrass Plaintiff, but also by allegedly continuing with a painful physical examination of Plaintiff’s genitals, even after Plaintiff twice cried out for Dr. Steinman to stop the examination. (See Compl. 39–47 [Doc. No. 1].) If true, this type of “assaultive exam” demonstrates that Plaintiff likely experienced a material disadvantage compared to others who were seen by emergency room doctors at Fairview. 12 Therefore, Plaintiff plausibly states a claim that, pursuant to the MHRA, he was denied the full and equal enjoyment of an individual seeking professional and humane medical care from an emergency room physician.

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Defendant Emergency Physicians also contends that Rumble failed to allege that Dr. Steinman’s denied him full and equal benefits of emergency room care because of Rumble’s sexual orientation and gender identity. (See Def. Emergency Physicians’ Mem. at 14 [Doc. No. 13].) Again, the Court disagrees.

As noted above, the MHRA prohibits discrimination “because of... sexual orientation.” See Minn. Stat. § 363A.11, subd. 1(a)(1). Minnesota law further defines “sexual orientation” as “having or being perceived as having a self-image or identity not Emergency Physicians claims that Plaintiff’s allegations “do not rise to the level of the material adverse events necessary to establish a valid claim of discrimination under the MHRA” because Plaintiff only alleges that (1) he perceived Dr. Steinman to be angry, and (2) he received an erroneous bill for services. (See Def. Emergency Physicians’ Mem. at 15 [Doc. No. 13].) The Court disagrees. Plaintiff painstakingly accounts how Dr. Steinman allegedly “jabbed” at Rumble’s genitals and did not stop jabbing until Rumble’s mother demanded Dr. Steinman to stop. (See Compl. 43–47 [Doc. No. 1].) CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 40 of 63 traditionally associated with one’s biological maleness or femaleness.” See Minn. Stat. § 363A.03, subd. 44. Thus, solely for the purposes of Plaintiff’s MHRA claim, Rumble alleges that he was discriminated against by Dr. Steinman because of Rumble’s “sexual orientation.” As with Plaintiff’s Section 1557 claim against Emergency Physicians, the facts alleged in Plaintiff’s Complaint plausibly demonstrate that Dr. Steinman discriminated against Plaintiff because of his gender identity or transgender status. Dr. Steinman’s comments and hostile questioning about Plaintiff’s sexual activities, coupled with his disregard for Rumble’s repeated request for Dr. Steinman to stop the painful physical examination demonstrate that the alleged mistreatment Plaintiff endured was because of Rumble’s gender identity. (See Pl.’s Mem. at 44 [Doc. No. 25].) As noted earlier, Rumble need not allege in his Complaint that Dr. Steinman “treated other patients with similar clinical presentations more favorably because of their sexual orientation and gender identity.” (Cf. Def. Emergency Physicians’ Mem. at 14–15 [Doc. No. 13].) Rather, Plaintiff need only allege facts that make it plausible that he was treated differently because of his gender identity. Rumble correctly states in his brief that “comparator evidence is only one of several ways that a plaintiff may prove a claim of discrimination at trial.” (See Pl.’s Mem. at 45 [Doc. No. 25].) For instance, Plaintiff may attempt to prove sexual orientation discrimination through “direct evidence in the form of actions or remarks by [Defendant] that reflect discriminatory intent.” See Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 859 n.9 (8th Cir. 2005) (Colloton, J., concurring) abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 41 of 63 1031 (8th Cir. 2011). Accordingly, Rumble sufficiently alleges “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [his MHRA claim].” Twombly, 550 U.S. at 556.

Emergency Physicians contends that Plaintiff impermissibly “relies on reports and surveys about general adverse treatment of the transgender population” to substantiate his discrimination claim against Dr. Steinman. (See Def. Emergency Physicians’ Reply at 8 [Doc. No. 29].) The Court disagrees. Plaintiff does in fact cite to two reports in his Complaint that document discrimination that transgender people experience in health care settings. (See Compl. 18–23 (citing Lambda Legal, When Health Care Isn’t Caring, (2009), http://www.lambdalegal.org/sites/default/files/publications/downloads/whcicreport_when-health-care-isnt-caring.pdf; and Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011), http://transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf) [Doc. No.

1].) While the Court does not read the reference to these reports as the substantive basis or proof of Dr. Steinman’s alleged discrimination in this case, these public documents do bolster the plausibility of Plaintiff’s claims.

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Defendant Fairview also filed a Motion to Dismiss Plaintiff’s two counts. (See Def. Fairview’s Mot. to Dismiss [Doc. No. 11].) Plaintiff alleges that “Defendant Fairview is vicariously and/or contractually liable for the actions of its principals, agents, employees, shareholders and/or partners.” (Compl. 8 [Doc. No. 1].) Fairview claims that: (1) Fairview cannot be held vicariously liable under either federal or state law for CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 42 of 63 the alleged acts of Dr. Steinman; and (2) Rumble failed to state a viable discrimination claim because he did not allege that any material adverse actions were taken against him.

(See Def. Fairview’s Mem. at 1 [Doc. No. 20].) The Court addresses both of these issues below.

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Defendant Fairview claims that “only the facts alleged against Fairview are relevant to the instant [m]otion because Fairview is not vicariously liable for the acts Rumble alleges were done by Emergency Physicians [via Dr. Steinman].” (See Def.

Fairview’s Mem. at 7 (emphasis original) [Doc. No. 20].) Fairview suggests that the Court should not consider Dr. Steinman’s actions when determining the plausibility of either Plaintiff’s Section 1557 claim or his MHRA claim. The Court holds that it need not determine the vicarious liability standard to apply to Plaintiff’s Section 1557 claim because Plaintiff sufficiently alleges that Defendant Fairview is directly liable for Dr.

Steinman’s actions. The Court additionally finds that, under the MHRA, Fairview may likely be held indirectly liable for Dr. Steinman’s actions. (See Compl. 8 [Doc. No. 1].)

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As it applies to Plaintiff’s Section 1557 claim, Fairview contends that it is not vicariously liable for Dr. Steinman’s acts because Title IX “does not recognize the concept of vicarious liability,” Plaintiff’s Section 1557 sex discrimination claim is based on Title IX principles, and therefore, Plaintiff’s Section 1557 claim also cannot rely on the concept of vicarious liability. (See id.) In opposition, Plaintiff argues that Defendant misstates the relevant Title IX standard, and “even if the Court assumes, as Fairview CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 43 of 63 does, that the Title IX standard controls,” then Plaintiff satisfies this standard. (See Pl.’s Mem. at 21–22 [Doc. No. 25].) The Court agrees that Fairview does not cite the relevant Title IX standard that may potentially apply to this case. Moreover, the Court holds that it need not determine the appropriate vicarious liability standard to apply to Plaintiff’s Section 1557 claim because Plaintiff sufficiently alleges that Defendant Fairview is directly liable for Dr. Steinman’s actions.

The Supreme Court announced the standard for determining a school district’s direct liability for an employee’s discriminatory acts under Title IX in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 285–91 (1998). Fairview asserts that the Gebser Court held that “a plaintiff may not use Title IX to hold a [school] district liable for an employee’s harassment of a student based on the principles of respondeat superior or vicarious liability.” (See Def. Fairview’s Mem. at 8 [Doc. No. 20].) Fairview mischaracterizes and misapplies the relevant holding of Gebser. Rather, in Gebser, the Supreme Court held that a plaintiff may use Title IX to hold a district liable for an employee’s harassment of a student based on principles of direct liability, if an “appropriate person,” or “an official who at a minimum has authority to address the alleged discrimination and to institute correctives measures on the recipient’s behalf[,] has actual knowledge of discrimination in the recipient’s programs[,] and fails adequately to respond.” Gebser, 524 U.S. at 290. The official’s response must “amount to deliberate indifference to discrimination,” in order for direct liability to attach. See id.

Here, Dr. Steinman is not an employee of Fairview. Rather, as Plaintiff alleges, Dr. Steinman is an employee of Emergency Physicians. (See Compl. 12 [Doc. No. 1].) CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 44 of 63 Therefore, Gebser’s direct liability standard for employees is not relevant to this case.

Instead, even assuming that the Court should apply case law interpreting Title IX, the Court must analyze the relevant direct liability standard for a third party’s actions, as opposed to the actions of an employee.

In Davis, the Supreme Court discussed the standard for determining a school district’s direct liability for a third party’s discriminatory actions. See 526 U.S. at 633.

The Davis Court held that “a [Title IX] private damages action may lie against the school board in cases of student-on-student harassment... only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities...

[and] only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” See id.

The Court also held that a school district would only be liable for a third-party’s actions when the school “exercises substantial control over both the harasser and the context in which the known harassment occurs.” Id. at 630.

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