ORDER - essensonlaw.com

1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION REGINA BAKER, Plaintiff, v. Case No.: 8:14-cv-3151-T-33 TGW ARTHUR S. PORTNOW, , , a Florida profit corporation, d/b/a ARTHUR S. PORTNOW, , , Defendant. _____/ ORDER This cause comes before the Court pursuant to Defendant Arthur S. Portnow, , s ( Portnow ) Dispositive Motion for Summary Judgment or, Alternatively, Partial Summary Judgment (Doc. # 19), filed on April 28, 2015. Plaintiff Regina Baker filed a response in opposition to the Motion on May 21, 2015. (Doc. # 24). Thereafter, on June 4, 2015, Portnow filed a reply to Baker s response. (Doc. # 25). For the reasons that follow, Portnow s Motion is granted. I. Background Portnow is a doctor s office located in Sarasota, Florida.

2 (Doc. # 19 at 1; Doc. # 24 at 2). Portnow receives Medicare and/or Medicaid payments and employed fewer than 15 employees at all times relevant to this action. (Doc. # 21 Case 8:14-cv-03151-VMC-TGW Document 28 Filed 07/21/15 Page 1 of 16 PageID 1372 at 3). Dr. Arthur S. Portnow ( Dr. Portnow ) is the President and majority shareholder of Portnow. (Id. at 1). Baker was born deaf and her primary language is American Sign Language ( ASL ), and written English is her second language. (Doc. # 21 at 4; Doc. # 24-1 at 1-3). Baker was a patient of Portnow beginning in approximately 2007. (Doc. # 21 at 2; Doc. # 24-1 at 6). For the first few years, Baker s husband would often, but not each time, accompany Baker to her appointments and interpret for her, as he was proficient in ASL.

3 (Doc. # 21 at 5; Doc. # 24-1 at 7). A few times, someone other than Baker s husband would accompany Baker and interpret for her. (Doc. # 21 at 5). However, on a few occasions, Baker appeared alone for her appointments, and Dr. Portnow and Portnow staff communicated with Baker through the use of written notes. (Id.). After Baker s husband passed away in 2009, Baker did not see Dr. Portnow until June 21, 2010. (Doc. # 21 at 7; Doc. # 24-1 at 8-9). From June 21, 2010, through 2013, Dr. Portnow communicated with Baker through the use of written notes during her appointments. (Doc. # 21 at 7). Between February 2012 and November 2013, [Baker] attended approximately twenty (20) appointments with Dr. Portnow. (Doc. # 24-1 at 10). Case 8:14-cv-03151-VMC-TGW Document 28 Filed 07/21/15 Page 2 of 16 PageID 1383 Due to ongoing concerns regarding [her] medical issues, Baker called to schedule her final appointment with Dr.

4 Portnow, through a translation service. (Id. at 14). When she scheduled the appointment , Baker requested that an ASL interpreter be present at the appointment so that she could fully communicate [her] medical needs and concerns with Dr. Portnow, and so [she] could have a complete understanding about [her] medical conditions.. (Id. at 15). When she arrived at her appointment on November 14, 2013, Baker repeated her request for an ASL interpreter, at Portnow s expense, via a written note to the office receptionist. (Id. at 16; Doc. # 21 at 8). Baker contends that her limited understanding of written English is insufficient to fully communicate information regarding [her] medical conditions, test results, prescriptions, and future treatment options.

5 Therefore, without an ASL interpreter [she] would not have the full benefit of the visit with Dr. Portnow. (Doc. # 24-1 at 25). By written note, Dr. Portnow declined to provide an ASL interpreter, contending that accommodating that request would be burdensome, and instructed Baker to find another medical provider if she was going to require an interpreter. (Id. at 24; Doc. # 21 at 8). Case 8:14-cv-03151-VMC-TGW Document 28 Filed 07/21/15 Page 3 of 16 PageID 1394 Baker initiated this action on December 18, 2014, alleging a violation of Section 504 of the Rehabilitation Act of 1973, 29 794. (See Doc. # 1). In short, Baker alleges that Portnow discriminated against her when it refused to provide her with a qualified [ASL] interpreter .. during a scheduled office visit, despite the fact that an [i]nterpreter was necessary for effective communication, and despite the fact that an [i]nterpreter was explicitly requested when the appointment was scheduled.

6 (Doc. # 24 at 1-2). Portnow filed the present Motion on April 28, 2015 (Doc. # 19), which is ripe for the Court s review. (See Doc. ## 24-25). II. Legal Standard Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 242, 247-48 (1986). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving Case 8:14-cv-03151-VMC-TGW Document 28 Filed 07/21/15 Page 4 of 16 PageID 1405 party.

7 Mize v. Jefferson City Bd. of Educ., 93 739, 742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ g Co., 9 913, 918 (11th Cir. 1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 642, 646 (11th Cir. 1997). The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 317, 323 (1986)). When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.

8 Jeffery v. Sarasota White Sox, Inc., 64 590, 593-94 (11th Cir. 1995) (citing Celotex, 477 at 324). If there is a conflict between the parties allegations or evidence, the non-moving party s evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party s favor. Shotz v. City of Plantation, Fla., 344 1161, 1164 (11th Cir. 2003). If a reasonable fact finder evaluating the evidence could draw more than one Case 8:14-cv-03151-VMC-TGW Document 28 Filed 07/21/15 Page 5 of 16 PageID 1416 inference from the facts, and if that inference introduces a genuine issue of material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 846 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel Works, Inc. v. Emp rs Ins.)

9 Of Wausau, 835 855, 856 (11th Cir. 1988)). However, if the non-movant s response consists of nothing more than a repetition of his conclusional allegations, summary judgment is not only proper, but required. Morris v. Ross, 663 1032, 1034 (11th Cir. 1981), cert. denied, 456 1010 (1982). III. Analysis Baker brings her claim under Section 504 of the Rehabilitation Act, which provides in relevant part that: No otherwise qualified individual with a disability .. shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.. 29 794 (a). Program or activity is defined, amongst other terms, as a: private organization.

10 Which is principally engaged in the business of providing .. health care.. Id. at (b)(3)(A)(ii). It is undisputed that at all material times, Portnow was a health care provider that received Medicare and/or Medicaid payments, and therefore was Case 8:14-cv-03151-VMC-TGW Document 28 Filed 07/21/15 Page 6 of 16 PageID 1427 bound to adhere to the mandates of the Rehabilitation Act. (Doc. # 21 at 3). The implementing regulations under the Rehabilitation Act relating to health care providers are promulgated by the Department of Health & Human Services ( HHS ) and such regulations are set forth in 45 , et seq. These regulations are recognized as an important source of guidance on the meaning of [Section] 504. Alexander v. Choate, 469 287, 304 (1984). One regulation states in part that [i]n providing health, welfare, or other social services or benefits, a recipient may not, on the basis of handicap.