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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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(See Def. Fairview’s Mem. at 12–13 [Doc. No. 12].) The fact that even Defendant Fairview is inconsistent about which standards to apply, bolsters the Court’s understanding that Section 1557 is likely not bounded by the existing interpretation of only one civil rights statute. Rather, Section 1557 creates a new cause of action that may require courts or the OCR to determine new standards.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 52 of 63 “mere name-calling,” and constituted objectively offensive behavior.

For instance, Plaintiff contends that Fairview purposefully “misgender[ed]” Plaintiff, by giving Rumble a hospital bracelet that identified his sex as “female.” (See Pl.’s Mem. at 33–34 [Doc. No. 25].) Plaintiff explains that the “deliberate misgendering” of transgender people is a prime example of “trans-exclusion.” (See id. (citing Julia Serano, Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity (2007).) Plaintiff alleges that the intake clerk purposefully and deliberately gave him a hospital bracelet that incorrectly identified his gender even after he explained that he had transitioned to identifying as male. (See Compl. 29 [Doc. No. 1].) Given Plaintiff’s transgender status and the fact that the clerk was aware of Plaintiff’s preferred gender, Fairview’s misgendering of Rumble could be considered objectively offensive behavior.

The fact that Rumble was forced to wait for several hours in the emergency room before being provided pain medication or being seen by an emergency room doctor also amounts to more than a “perceived slight.” (See id. 35–37.) Rumble’s health and well-being was at stake while he waited in severe pain for someone at Fairview to treat him. (See id. 35–36.) Fairview’s alleged delay in treating Plaintiff is even more appalling given Plaintiff’s allegation that “people with less urgent medical needs were treated much more quickly than [Rumble] was treated.” (Id. 37.) The urgent severity of Plaintiff’s condition when he entered Fairview is evident by the fact that a Fairview doctor allegedly told Rumble’s mother that her son “would have been septic within 12 to 24 hours” from being brought to the hospital. (Id. 59.) CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 53 of 63 Moreover, in addition to the fact that Plaintiff had to wait for Dr. Steinman, Plaintiff then also waited for several more hours before being admitted to the hospital and treated with any sort of antibiotic. (Id. 49–50.) As Plaintiff explains, “several times during his time at Fairview, Rumble was refused care, and at other times, he was refused humane and dignified care.” (See Pl.’s Mem. at 34 [Doc. No. 25].) Forcing Plaintiff to wait hours on end, while he was in unbearable pain and could have entered septic shock, is clearly actionable discriminatory conduct, if Fairview staff were motivated by the fact that Plaintiff is transgender.

Additionally, the fact that Dr. Obaid conducted a genital exam of Plaintiff’s inflamed genitals, wiped his gloves on Plaintiff’s hospital bed, and then examined Plaintiff’s eyes and mouth using the same gloves also amounts to more than a “perceived slight.” (See Compl. 56 [Doc. No. 1].) If this alleged conduct was because of Plaintiff’s transgender status, then this incident also serves as a basis for Plaintiff’s Section 1557 claim. This behavior amounts to conduct that is more than simply insensitive. Rather, if true, it constitutes unacceptable medical care, in which a medical professional misused his authority to harass a patient. (See Pl.’s Mem. at 38 [Doc. No.

25].) As the Supreme Court noted in Davis, “[t]he relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX’s guarantee of equal access to educational benefits.” Davis, 526 U.S. at 653.

Here, the Court finds that the relationship between the harasser and the victim necessarily affects the extent to which the misconduct breaches Section 1557’s guarantee of equal access to medical benefits and care. Just as “teacher-student harassment” is more likely CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 54 of 63 to satisfy the requirements for a Title IX claim than “peer harassment,” so too is medical professional-patient harassment more likely to satisfy the requirements for a Section 1557 claim than patient-patient harassment.

Finally, Plaintiff also alleges that it was objectively offensive that: a hospital staff person had written the “OB/GYN” notation on the dry erase board in his hospital room;

and that hospital staff whispered about him; and that hospital nurses behaved unfriendly toward him. (See Compl. 31, 55, 57 [Doc. No. 1].) Although, on its own, this behavior may be insufficient to constitute discrimination under Section 1557, the Court reads these allegations in tandem with the other allegations in Plaintiff’s Complaint and concludes that, as a whole, Plaintiff states a plausible Section 1557 claim against Fairview. See Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (holding that a court must read a complaint as a whole “to determine whether each allegation, in isolation, is plausible”).

Consistent with the Court’s findings above, it is plausible that Fairview staff treated Plaintiff in the manner that they did because of his protected class status. The emergency room clerk was plausibly aware of Plaintiff’s transgender status as a result of the conversation he had with Rumble about the difference between Rumble’s assigned gender at birth and his current gender. The hospital staff members who made Plaintiff wait before and after seeing Dr. Steinman were also plausibly aware that Rumble is transgender because they could have found out this information from the intake clerk or Dr. Steinman. Additionally, the nurses and physicians who treated Plaintiff during his several day stay at the hospital were also plausibly aware that Plaintiff was transgender CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 55 of 63 because they knew from examining Rumble that Rumble identifies as male, but has female genitalia. Moreover, the Court notes that if Defendant Fairview is later determined to be liable for Dr. Steinman’s actions, then additional facts pertaining to the genital exam Dr. Steinman completed further bolster the plausibility that Fairview violated Section 1557.

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Defendant Fairview argues that Rumble failed to state a plausible MHRA claim because Rumble did not allege that: (1) Fairview took any “tangible” or “material” adverse action against him that resulted in a denial of services (see Def. Fairview’s Mem.

at 14 [Doc. No. 20]); and (2) the actions that Fairview did take were driven by “discriminatory animus” (see Def. Fairview’s Reply at 9 [Doc. No. 28]). 16 The Court addresses both of these arguments below.

–  –  –

Defendant claims that Plaintiff merely alleges facts substantiating “hurt feelings,” and not a denial of services or accommodations or discrimination to substantiate his MHRA claim. (See Def. Fairview’s Mem. at 14–15 [Doc. No. 20].) The Court disagrees. Although generally an MHRA claimant alleges an outright “denial” of services or accommodations, Childs, 2012 WL 2126845, at *5, a plaintiff may also allege Fairview also argues that the Court should dismiss Plaintiff’s MHRA claim because the Court may decline to exercise supplemental jurisdiction over the state-law claim if the “court has dismissed all claims over which it has original jurisdiction.” (See Def. Fairview’s Mem. at 14 n.11 (citing 28 U.S.C. § 1367(c)(3)) [Doc. No. 20].) As the Court did not dismiss Plaintiff’s Section 1557 claim against either Defendant, the Court finds that Fairview’s argument is inapposite.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 56 of 63 a denial of the “full and equal enjoyment” of services, see Minn. Stat. § 363A.11. In other words, a plaintiff may allege that he received materially inferior services because of his protected class status. See id.; Bahr v. Capella Univ., 788 N.W.2d 76, 83 (Minn.

2010) (citing Burchett, 340 F.3d at 518; Brannum, 518 F.3d at 549; and Jones, 285 F.3d at 714). Therefore, the MHRA does not require Plaintiff to allege that he was denied services. Rather, pursuant to the MHRA, Rumble appropriately alleges that he received inferior medical services from Fairview. (See generally Compl. [Doc. No. 1].) As the Court discussed in detail above, Plaintiff alleges facts about the harassment he experienced from the intake clerk, Dr. Obaid, the hospital staff, and the hospital nurses that, read as a whole, amount to an allegation that he received inferior medical care and treatment. See supra Part III(C)(1)(b)(2). The hospital staff’s conduct and behavior amounts to more than mere “perceived slights” or “hurt feelings.” Additionally, if the Court ultimately determines that Fairview is liable for Dr. Steinman’s actions, then Plaintiff’s MHRA claim against Fairview is further bolstered by facts demonstrating that Dr. Steinman treated Rumble poorly or adversely.

Rumble’s case is clearly distinguishable from Porter v. Children’s Health-Care Minneapolis, No. C5-98-1342, 1999 WL 71470 (Minn. Ct. App. Feb. 16, 1999). (See Def. Fairview’s Mem. at 16 [Doc. No. 20].) In Porter, the Minnesota Court of Appeals upheld the district court’s grant of summary judgment for the defendant on the plaintiff’s MHRA discrimination claim. See 1999 WL 71470, *6. The Porter Court held that the plaintiff’s MHRA claim failed because the plaintiff did not provide sufficient direct and circumstantial evidence that “he was treated differently from anyone else using [the CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 57 of 63 defendant’s] services at that time and under those circumstances.” Id.

In contrast, here, Plaintiff provides the requisite direct and circumstantial evidence. Based on observing the individuals who came into the emergency room, Rumble alleges that “people with less urgent medical needs were treated much more quickly than [he was].” (See Compl. 37 [Doc. No. 1].) Therefore, Plaintiff alleges that he was treated differently from others seeking Fairview’s services at the exact same time that he was seeking medical services from Fairview. Cf. Porter, 1999 WL 71470, at *6.

Moreover, Plaintiff alleges that a Fairview staff person admitted to his mother that although Rumble was forced to wait for nearly seven hours in the emergency room before being admitted to the hospital or receiving treatment, Fairview did not usually keep patients waiting for this long. (See Compl. 50 [Doc. No. 1].) If the Court accepts this allegation as true, then the facts show that even one of Defendant’s employees admitted that Plaintiff received disparate treatment. Accordingly, Rumble plausibly alleges that Fairview denied him the “full and equal enjoyment” of medical services, and the disparate treatment amounts to an actionable adverse action under Minn. Stat. § 363A.11.

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Fairview also contends that Plaintiff’s allegations do not demonstrate that he was denied medical treatment “because of” his sexual orientation or gender identity. (See Def. Fairview’s Reply at 8–9 [Doc. No. 28].) Fairview claims that Plaintiff’s allegations are based only on his “subjective belief” that he received disparate treatment “because of” his transgender status. (See id. at 9.) The Court disagrees.

To prove a claim of disparate treatment under the MHRA, “proof of CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 58 of 63 discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” See Hubbard v. United Press Intern., Inc., 330 N.W.2d 428, 441 n.12 (Minn. 1983) (quoting International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 335–36 n.15 (1977)). Rumble alleges several facts demonstrating that he was treated poorly or differently from other patients at the hospital.

See supra Part III(C)(1)(b)(2). In fact, as the Court noted above, a Fairview staff person even admitted to Plaintiff that Fairview did not usually make people wait in the emergency room for nearly seven hours. (See Compl. 50 [Doc. No. 1].) And as with Plaintiff’s Section 1557 claim, the Court also notes that if Defendant Fairview is determined to be liable for Dr. Steinman’s actions, then additional facts pertaining to the genital exam Dr. Steinman completed may be used to show how Rumble received disparate treatment from Fairview in violation of the MHRA. Accordingly, at this stage of the proceedings, the Court finds that a discriminatory motive may be plausibly inferred from the fact that Rumble received disparate treatment.

The Court notes that, generally, merely pleading “on information and belief, without more, is insufficient to survive a motion to dismiss for failure to state a claim.” Kampschroer v. Anoka Cnty., No. 13-cv-2512 (SRN/TNL), 2014 WL 5530590, at *14 (D. Minn. Nov. 3, 2014) (citing Solis v. City of Fresno, No. 1:11–cv–00053, 2012 WL 868681, at *8 (E.D. Cal. Mar. 13, 2012)). And Defendant correctly notes that Plaintiff alleges that he: (1) “believed” that the intake clerk was discussing his gender with another person (Compl. 31 (emphasis added) [Doc. No. 1]); (2) “believed that people with less urgent medical needs were treated much more quickly than [he] was treated” (id. 37) CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 59 of 63 (emphasis added); and (3) “had the impression that some of the nurses were hostile towards him” (id. 57) (emphasis added).

Here, however, Plaintiff’s allegations are not based solely upon information and belief. Rather, Plaintiff’s allegations of discriminatory animus are based on the totality of the circumstances surrounding each interaction he had with Fairview employees.

For instance, the Court finds it plausible that the intake clerk was in fact whispering about Plaintiff’s gender with another person, based on the fact that Plaintiff alleges that the whispering took place right after the clerk had a conversation with Plaintiff about his gender on file. (See Compl. 29–31 [Doc. No. 1].) Therefore, Plaintiff plausibly “believed” the whispering was motivated by discriminatory animus.

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