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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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The Court finds that even if the Davis Court’s Title IX standard applies to this case, Defendant Fairview may be held liable for Dr. Steinman’s actions if Plaintiff sufficiently alleges the following four elements: (1) Dr. Steinman’s actions effectively barred Rumble’s access to reasonable, non-harassing medical care; (2) an appropriate person at Fairview knew of Dr. Steinman’s discriminatory acts; (3) that Fairview official acted with deliberate indifference to the discrimination; and (4) Fairview has substantial control over Dr. Steinman and the emergency room. See id. at 630, 633.

At this stage in the litigation, the Court finds that Plaintiff plausibly alleges the CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 45 of 63 four elements outlined above. First, as discussed in more detail in Part III(B)(1)(b), Dr.

Steinman’s alleged treatment of Rumble was “objectively offensive,” particularly when Dr. Steinman refused to stop a painful genital exam, despite Plaintiff’s repeated pleas.

By allegedly ignoring Plaintiff’s requests, Dr. Steinman effectively barred Plaintiff from an opportunity to have “humane and dignified [medical] care.” (See Pl.’s Mem. at 34 [Doc. No. 25].) A reasonable person, seeking treatment from an emergency room doctor at a hospital, would expect that the doctor would respect the patient’s wishes to stop a painful exam.

Plaintiff also sufficiently alleges that an “appropriate person” knew of Dr.

Steinman’s behavior and actions. Specifically, Rumble alleges that Dr. Lehrman, an OB/GYN employed by Fairview, and a female nursing assistant/emergency room technician, also presumably employed by Fairview, were in the exam room, saw Dr.

Steinman complete the exam, and did not intervene or stop Dr. Steinman from proceeding with the exam. (See Compl. 48 [Doc. No. 1].) The Eighth Circuit has noted that it cannot “pretend to fashion a bright-line rule as to what job titles and positions automatically mark an individual as having sufficient authority or control for the purposes of Title IX liability.” See Plamp v. Mitchell Sch. Dist. No. 17-2, 565 F.3d 450, 457 (8th Cir. 2009) (citing Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1247 (10th Cir. 1999) (explaining that “[b]ecause officials’ roles vary among school districts, deciding who exercises substantial control for the purposes of Title IX liability is necessarily a fact-based inquiry.”)).

Here, although Plaintiff does not detail whether either Dr. Lehrman or the female CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 46 of 63 nursing assistant have “authority to address the alleged discrimination and to institute correctives measures,” Gebser, 524 U.S. at 290, the Court does not expect that Plaintiff would be able to do so without further discovery, see Plamp, 565 F.3d at 457. Therefore, for the purposes of Defendants’ Motions to Dismiss, the Court finds that Plaintiff plausibly alleges that at least one “appropriate person” knew of Dr. Steinman’s “assaultive” exam.

The Court also concludes that Plaintiff plausibly alleges that either Dr. Lehrman or the nursing assistant acted with deliberate indifference to Dr. Steinman’s discriminatory behavior by not intervening or stopping Dr. Steinman from continuing with the genital exam. Finally, the Court finds that Rumble plausibly alleges that Fairview has substantial control over the Fairview emergency room and over Dr. Steinman, a doctor who works in Fairview’s emergency room. (See Compl. 7 [Doc. No. 1].) Additional facts about the control Fairview exercises will only become evident after discovery.

Therefore, even assuming that the Title IX standard for direct liability for a thirdparty’s actions applies to this case, Plaintiff satisfies his burden. Accordingly, the Court considers Dr. Steinman’s alleged actions when evaluating the plausibility of Plaintiff’s Section 1557 claim against Defendant Fairview. The Court emphasizes, however, that it is not entirely clear whether Plaintiff must satisfy the four elements outlined above.

Because Section 1557 incorporates and references four civil rights statutes, only one of which is Title IX, the Court may conclude that Plaintiff is not required to satisfy the Title IX liability standard. Rather, Plaintiff may be subject to an entirely different burden of proof under the unique cause of action created by Section 1557.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 47 of 63

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In addition to arguing that Fairview is not liable for Dr. Steinman’s actions for Plaintiff’s Section 1557 claim, Defendant also claims that Fairview is not vicariously liable for Dr. Steinman’s actions for Plaintiff’s MHRA claim. (See Def. Fairview’s Mem. at 8 [Doc. No. 20].) Similar to the Court’s finding with respect to Plaintiff’s Section 1557 claim, the Court holds that Plaintiff plausibly alleges that Fairview is liable for Dr. Steinman’s actions for the MHRA claim as well.

The Court’s analysis is guided by Title VII case law because Title VII and the MHRA are often interpreted similarly. See Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (finding that “the same analysis applies to both MHRA and Title VII claims”); see also Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005); Bahr v. Capella Univ., 788 N.W.2d 76, 83 (Minn. 2010). 13 As this Court has done previously, it assumes, without deciding, “that standards for employer liability in federal hostile environment case law apply to [Rumble’s] public-services [discrimination] claim under the MHRA.” See Hudson, 2006 WL 752935, at *11.

Title VII and the MHRA first require a plaintiff to show that the defendant was the third party’s de facto employer. A plaintiff may demonstrate this de facto employeeThe Court notes that although the statutes are often interpreted similarly, it is unclear whether a distinction exists under the MHRA between the standard for vicarious liability for sexual harassment in an employment setting and the standard for vicarious liability in the public accommodation setting. See Hudson v. City of Minneapolis, No.

04-cv-3313 (JNE/FLN), 2006 WL 752935, at *11 (D. Minn. Mar. 23, 2006).

Nonetheless, as other courts have done, see id., the Court proceeds by applying the standard that courts have used for vicarious liability for sexual harassment in an employment setting, under the MHRA.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 48 of 63 employer relationship either by liberally interpreting the term “employer,” see Baker v.

Stuart Broad. Co., 560 F.2d 389, 391 (8th Cir. 1977) (citing Sibley Memorial Hospital v.

Wilson, 488 F.2d 1338 (D.C. Cir. 1973)), or by showing how the relationship between the defendant and the third party satisfies a twelve factor test as set out in Schweiger v.

Farm Bureau Ins. Co. of Neb., 207 F.3d 480, 484 (8th Cir. 2000) 14. See also Stoner v.

Ark. Dep’t of Corr., 983 F. Supp. 2d 1074, 1087–88 (E.D. Ark. 2013) (finding that the defendant was the third party’s de facto employer under Title VII, either under the twelve factor test or under a liberal construction of the term “employer,” because the facts showed that the defendant’s policies applied to the third party, and the defendant controlled whether the third party was banned from the defendant’s complex, which would “effectively terminat[e] [the third party’s] employment”).

Similarly, Title VII and the MHRA also require a plaintiff to show that the defendant controlled the plaintiff’s environment and could alter the conditions of the The Eighth Circuit explained in Schwieger that in order to determine whether an employer-employee relationship exists “[a] primary consideration is the hiring party’s right to control the manner and means by which a task is accomplished.” Schwieger, 207 F.3d at 484. The Eighth Circuit also noted the following twelve factors that a court could take into account when determining whether an employer-employee relationship


the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party;

the extent of the hired party's discretion over when and how long to work;

the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Id. (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323–24 (1992)).

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 49 of 63 environment, knew or should have known of the discrimination, and failed to take prompt remedial action. See Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111–12 (8th Cir. 1997) (holding that defendant residential program operator could be held liable for sexual harassment under the MHRA and Title VII for the acts of its employees because the defendant “clearly controlled” the plaintiff’s environment and “had the ability to alter those conditions to a substantial degree”).

Here, Plaintiff alleges that Fairview was Dr. Steinman’s “employer,” liberally construed, because Fairview exercised control over the physicians who work in the emergency room. (See Pl.’s Mem. at 23 [Doc. No. 25].) Rumble further alleges that Fairview could have stopped or prevented Dr. Steinman from discriminating against Plaintiff; Fairview knew of the discrimination because Dr. Lehrman and the nursing assistant witnessed it; and Fairview failed to take prompt remedial action. (See Compl.

48, 81 [Doc. No. 1].) Defendant contends, in contrast, that it had no opportunity to control or prevent Dr. Steinman’s actions. (See Def. Fairview’s Mem. at 9 [Doc. No.

20].) As the Court noted above with respect to Plaintiff’s Section 1557 claim, the Court cannot conclude without discovery whether Fairview, in fact, had the opportunity to control Dr. Steinman. Nonetheless, at this stage in the litigation, the Court construes all reasonable inferences in the light most favorable to Plaintiff, Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986), and concludes that Fairview plausibly may have been able to control Dr. Steinman; and thus, may be held indirectly liable for Dr. Steinman’s actions.

Accordingly, the Court considers Dr. Steinman’s alleged actions when evaluating the plausibility of Plaintiff’s MHRA claim against Defendant Fairview.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 50 of 63

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Fairview contends that Rumble failed to state a claim under Section 1557. (See Def. Fairview’s Mem. at 9 [Doc. No. 20].) Specifically, Fairview argues that although the “alleged differential treatment must be material to be actionable,” here, Rumble failed to allege facts that constitute plausible, actionable discrimination. (See Def. Fairview’s Mem. at 12 (emphasis original) [Doc. No. 20].) Defendant claims that “Rumble’s allegations of snubs and delays are only the proverbial ‘perceived slights’ that the Eighth Circuit has held are not sufficient to give rise to a discrimination claim.” (See id. at 12– 13 (emphasis original).) Because Fairview contends that it is not liable for Dr. Steinman’s actions, Fairview does not discuss how Dr. Steinman’s treatment of Plaintiff affects the plausibility of Plaintiff’s Section 1557 claim. Thus, Fairview focuses solely on the alleged actions of hospital staff and asserts that the following treatment was not discriminatory: (1) Plaintiff received a hospital bracelet identifying his sex as “female;” (2) Rumble waited for several hours before he received treatment in the emergency room;

(3) the “OB/GYN” notation was written on the dry erase board in Rumble’s hospital room; (4) Fairview nurses examined Rumble’s genitals while he was a patient at the hospital; (5) a Fairview nurse told Rumble that she does not know what was wrong with Rumble “because [she didn’t] have any experience with this sort of thing;” and (6) hospital staff whispered about Plaintiff, and hospital nurses behaved unfriendly toward Rumble. (See Def. Fairview’s Mem. at 13 [Doc. No. 20].) Defendant correctly states that “mere name-calling” is not enough to arise to the CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 51 of 63 level of an actionable discrimination claim. See Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 969–70 (8th Cir. 1999) (holding that “general allegations of co-worker ostracism are not sufficient to rise to the level of an adverse employment action for purposes of Title VII.”); Oncale, 523 U.S. at 80–81 (explaining that Title VII does not prohibit all verbal or physical harassment, rather, a plaintiff must prove that the conduct at issue constituted discrimination because of sex and was not just “merely tinged with offensive sexual connotations”); Davis, 526 U.S. at 651–52 (holding that for a plaintiff to have an actionable Title IX claim the harassment must amount to more than “simple acts of teasing and name-calling among school children”); see also Wolfe, 648 F.3d at 866–67 (holding that the plaintiff must prove that the harassment complained of amounted to more than mere name-calling, in order to state an actionable Title IX claim); Shaver v.

Indep. Stave Co., 350 F.3d 716, 721 (8th Cir. 2003) (finding that “[c]onduct that is merely rude, abrasive, unkind, or insensitive does not come within the scope of the [Americans with Disabilities Act]”). 15 However, the Court disagrees with Fairview insofar as it contends that the hospital staff’s alleged conduct amounts to only “perceived slights.” (See Def. Fairview’s Mem.

at 12 [Doc. No. 20].) Much of the conduct that Plaintiff alleges amounted to more than The Court notes that while Defendant ardently argues that only Title IX case law applies for determining whether Fairview is liable for Dr. Steinman’s actions, Fairview references case law analyzing Title VII and the Americans with Disabilities Act when discussing whether Fairview’s conduct amounts to an actionable Section 1557 claim.

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