Mansell Sr. v. Memorial Medical Center

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

ROBERT B. MANSELL, Sr., )

KATHY MANSELL, and )

KEN MANSELL, )

)

Plaintiffs, )

)

v. ) No. 19-cv-3130

)

MEMORIAL MEDICAL CENTER, )

)

Defendant. )

OPINION

TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:

This matter comes before the Court on Defendant Memorial Medical

Center’s (Memorial) Motion to Dismiss Counts IV and V of Plaintiffs’

Complaint (d/e 6) (Motion). The parties have consented to proceed before

this Court. Consent to the Exercise of Jurisdiction by a United States

Magistrate Judge entered August 12, 2019 (d/e 12). Memorial moves to

dismiss the claims of Plaintiffs Kathy Mansell and Ken Mansell for failure to

state a claim and for lack of statutory standing. For the reasons set forth

below, the Motion is GRANTED.

STATEMENT OF FACTS

For purposes of the Motion, the Court assumes that all well-pleaded

factual allegations in the Complaint are true and draws all inference in favor

of the Plaintiffs. See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).

Plaintiff Robert Mansell, Sr. (Robert Mansell) is deaf. Robert Mansell

is fluent in American Sign Language (ASL). Robert Mansell has limited

ability to read and write English; he has a very limited ability to lip read, and

he can articulate a few basic words in English. Plaintiffs Kathy Mansell and

Ken Mansell are not deaf. Kathy Mansell is Robert Mansell’s ex-wife and

friend. Ken Mansell is Robert Mansell’s brother. Kathy Mansell is fluent in

ASL. Ken Mansell has some ability to communicate in ASL but has no

formal training. Kathy Mansell and Ken Mansell have no knowledge of

medical terminology or ASL signs for medical terminology. Complaint, ¶¶

3-5.

The Plaintiffs live in Jacksonville, Illinois. On Saturday, November

24, 2018, at 2:20 a.m., Robert Mansell drove himself to the emergency

room at Passavant Hospital (Passavant) in Jacksonville, Illinois, because

he had chest pains. Robert Mansell had a history of congestive heart

failure, colon cancer, anxiety, and depression. Passavant had an ASL

interpreter on-site to interpret for Robert Mansell and the doctors. The

doctors at Passavant transferred Robert Mansell to Memorial in Springfield,

Illinois, by ambulance. The Court takes judicial notice that Passavant is

approximately 40 miles from Memorial by motor vehicle. At Robert

Mansell’s request, a doctor at Passavant contacted Memorial’s staff to

request an on-site ASL interpreter to be present at Memorial when Robert

Mansell arrived. Complaint, ¶ 13.

On Saturday, November 24, 2018, at approximately 6:43 a.m., Robert

Mansell arrived at Memorial. He remained at Memorial until he was

discharged on Monday, November 26, 2018. When Robert Mansell

arrived, no ASL interpreter was present. He wrote a note asking for an

ASL interpreter. The nurse brought Video Remote Interpreting (VRI)

equipment to the examination room instead. The nurse did use the VRI

equipment in his room. The nurse may have not known how to use the VRI

equipment or the equipment may have not functioned properly. See

Complaint, ¶¶ 15, 23.

On Saturday, November 24, 2018, at approximately 9:30 a.m., Kathy

Mansell arrived at Memorial. Kathy Mansell asked if Robert Mansell would

be provided with an on-site ASL interpreter. She was told that Memorial

did not provide on-site ASL interpreting. Robert Mansell was not in an

emergency involving an imminent threat and did not ask for Kathy Mansell

to interpret. The staff asked Kathy Mansell to interpret. She reluctantly

agreed. Kathy Mansell told Memorial staff that she was not a licensed,

qualified interpreter and did not know medical terminology. Complaint, ¶

17. On November 24, 2018, at 11:03 a.m., the Memorial Social Services

nurse recorded that Robert Mansell’s preferred method of communication

was ASL. Complaint, ¶ 16.

Robert Mansell underwent a series of tests at Memorial. Kathy

Mansell interpreted for Robert Mansell because he had no other means to

communicate with Memorial doctors and staff. The tests showed that

Robert Mansell had atrial fibrillation with a rapid ventricle rate. Complaint,

¶ 18.

Robert Mansell was also identified as a fall risk and ordered not to get

out of bed. During the day on November 24, 2018, Kathy Mansell used the

call button to ask for assistance for Robert Mansell to get out of bed and

walk to the restroom. Robert Mansell had no other means to communicate

this request. Memorial staff delayed responding, so Kathy Mansell helped

Robert Mansell to the bathroom. Complaint, ¶ 21.

Kathy Mansell left Memorial at approximately 3:00 p.m. on Saturday,

November 24, 2018. Robert Mansell had no interpreter to assist him in

communicating with Memorial doctors and staff for the rest of the day or

overnight. Robert Mansell’s son-in-law called to request an interpreter.

None was provided. Complaint, ¶ 22.

On Sunday morning November 25, 2018, Plaintiff Ken Mansell came

to see his brother Robert Mansell at Memorial. Ken stayed until Robert

Mansell was discharged on Monday November 26, 2018. Ken Mansell

asked about an on-site ASL interpreter. Memorial staff told Ken Mansell

that Memorial used VRI interpretation. The VRI equipment, however, was

not functioning properly. Ken Mansell alleges that he was forced to

interpret for Robert Mansell. Ken Mansell told staff that he only knew the

basics of ASL and was not fluent and was not certified as an ASL

interpreter. Complaint, ¶ 23.

On November 25, 2018, Memorial staff ran tests on Robert Mansell

without the presence of Ken Mansell or any other person who could

interpret. On Monday, November 26, 2018, a cardiologist from Memorial

refused to use the VRI equipment to communicate with Robert Mansell.

The cardiologist spoke to Ken Mansell about Robert Mansell’s condition.

On November 26, 2018 at approximately 4:30 p.m., Robert Mansell was

discharged from Memorial. Robert Mansell received written information

about his diagnosis, treatment, and recommended follow-up. He did not

understand the written information. Complaint, ¶¶ 24-25.

Robert Mansell alleges that he intends to return to Memorial for

follow-up care because Passavant cannot provide the type of needed care

and because his cardiologist is located in Springfield. Complaint, ¶ 27.

Based on these allegations, Robert Mansell brings claims against

Memorial for injunctive relief and damages for violations of the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12189; the Rehabilitation

Act (RA), 29 U.S.C. § 704; and the Patient Protection and Affordable Care

Act, 42 U.S.C. § 18116. Complaint, Counts I-III.

Kathy Mansell and Ken Mansell each brings a claim for damages

against Memorial for violation of the RA, 29 U.S.C. § 704 (Counts IV and

V). Kathy Mansell alleges the following violations of her rights under the

RA:

32. At all relevant times herein, Memorial knew that Plaintiff had

federally protected rights to effective communication, and

Defendant’s acts and omissions alleged herein violated and

continue to violate the Rehabilitation Act and its implementing

regulations in one or more or all of the following manners as

defendant has discriminated against Plaintiff by:

A. Denying her the opportunity for the full and equal

enjoyment of Memorial’s goods, services, facilities,

privileges, advantages, or accommodations.

B. Denying her the opportunity to participate in or benefit

from Memorial’s goods, services, facilities, privileges,

advantages, or accommodations.

C. Offering or affording her services that are not equal to

those services afforded to other individuals who are

companions to patients who are not deaf.

D. Failing to make reasonable modifications in policies,

practices, or procedures, which are necessary to afford

Memorial’s goods, services and facilities to Plaintiff where

such modifications would not fundamentally alter the

nature of its goods, services or facilities.

E. Intentionally requiring Plaintiff to interpret for Robert,

when Defendant knew that Plaintiff was a family member

and not a licensed interpreter, and Robert did not request

that Defendant use Plaintiff.

F. Otherwise having discriminated against Plaintiff because

of her relationship with a person with a disability.

Complaint, Count IV ¶ 32. Ken Mansell alleges the following violations of

his rights under the RA:

32. At all relevant times herein, Memorial knew that Plaintiff had

federally protected rights to effective communication, and

Defendant’s acts and omissions alleged herein violated and

continue to violate the Rehabilitation Act and its implementing

regulations in one or more or all of the following manners as

defendant has discriminated against Plaintiff by:

A. Denying him the opportunity for the full and equal

enjoyment of Memorial’s goods, services, facilities,

privileges, advantages, or accommodations.

B. Denying him the opportunity to participate in or benefit

from Memorial’s goods, services, facilities, privileges,

advantages, or accommodations.

C. Offering or affording him services that are not equal to

those services afforded to other individuals who are

companions to patients who are not deaf.

D. Failing to make reasonable modifications in policies,

practices, or procedures, which are necessary to afford

Memorial’s goods, services and facilities to Plaintiff where

such modifications would not fundamentally alter the

nature of its goods, services or facilities.

E. Intentionally requiring Plaintiff to interpret for Robert,

when Defendant knew that Plaintiff was a family member

and not a licensed interpreter, and Robert did not request

that Defendant use Plaintiff.

F. Otherwise having discriminated against Plaintiff because

of his relationship with a person with a disability.

Complaint, Count V ¶ 32. Kathy Mansell and Ken Mansell seek

compensatory damages, costs, and attorney fees. Memorial moves to

dismiss Kathy Mansell and Ken Mansell’s claims, Counts IV and V of the

Complaint.

ANALYSIS

Memorial moves to dismiss Counts IV and V for failure to state a

claim. Fed. R. Civ. P. 12(b)(6). The Federal Rules require only “a short

and plain statement of the claim showing that the pleader is entitled to

relief,” and allegations must be “simple, concise, and direct.” Fed. R. Civ.

P. 8(a)(2). While a complaint need not contain detailed, specific factual

allegations, it must contain sufficient facts to “state a claim to relief that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). A claim is plausible if the plaintiff “pleads factual content that

allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). A claim is plausible on its face if it provides the defendant fair

notice of what the claim is and the grounds upon which it rests, “[T]he

plaintiff must give enough details about the subject matter of the case to

present a story that holds together.” Swanson v. Citi Bank, N.A., 614 F.3d

400, 404 (7th Cir. 2010); see George v. Smith, 507 F.3d 605, 608 (7th Cir.

2007). Dismissal under Rule 12(b)(6) is appropriate when “the factual

detail in a complaint [is] so sketchy that the complaint does not provide the

type of notice of the claim to which the defendant is entitled under Rule 8.”

Airborne Beepers & Video, Inc. v. AT & T Mobility, LLC, 499 F.3d 663, 667

(7th Cir. 2007).

Memorial also argues that Kathy Mansell and Ken Mansell lack

statutory standing. The term statutory standing refers to whether Kathy

Mansell and Ken Mansell “fall within the class of plaintiffs whom Congress

has authorized to sue” under the RA. Lexmark Intern., Inc. v. Static Control

Components, Inc., 572 U.S. 118, 128 n.4 (2014). This Court must

determine whether Congress authorizes the claim Kathy Mansell and Ken

Mansell have alleged:

That question requires us to determine the meaning of the

congressionally enacted provision creating a cause of action. In

doing so, we apply traditional principles of statutory

interpretation. We do not ask whether in our judgment

Congress should have authorized [the plaintiff’s] suit, but

whether Congress in fact did so.

Lexmark Int'l, Inc., 572 U.S. at 128 (emphasis in the original).

Kathy Mansell and Ken Mansell allege claims for violations of the RA.

The RA and the ADA are interpreted together so that a violation of the ADA

constitutes a violation of the RA. See Jaros v. Illinois Department of

Corrections, 684 F.3d 667, 671-72 (7th Cir. 2012). The ADA prohibits

discrimination against a qualified person with a disability, and also

discrimination against a person associated with a disabled person. The

ADA states:

(a) General rule

No individual shall be discriminated against on the basis of

disability in the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, or accommodations of any

place of public accommodation by any person who owns,

leases (or leases to), or operates a place of public

accommodation.

42 U.S.C. § 12182(a). The ADA then defines discrimination to include

discrimination against a person because the person is associated with a

disabled person:

(E) Association

It shall be discriminatory to exclude or otherwise deny equal

goods, services, facilities, privileges, advantages,

accommodations, or other opportunities to an individual or

entity because of the known disability of an individual with

whom the individual or entity is known to have a relationship or

association.

42 U.S.C. § 12182(b)(1)(E).

The RA prohibits discrimination based on disabilities by federal

agencies and entities receiving federal funds:

No otherwise qualified individual with a disability in the United

States, . . . 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 or under any program or

activity conducted by any Executive agency or by the United

States Postal Service.

29 U.S.C. § 794(a). Memorial receives federal funds and so is subject to

this section of the RA. Section 794a(a)(2) of the RA states that a “person

aggrieved” by a violation of RA may seek remedies available under Title VI

of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. 29 U.S.C. §

794a(a)(2).

The ADA, and so the RA, prohibit denying goods, services, facilities,

privileges, advantages, accommodations, or other opportunities

(collectively “goods and services”) to individuals because the individuals

are associated with a disabled person. To state a claim, Kathy Mansell and

Ken Mansell must each allege that Memorial denied them goods or

services because they were associated with Robert Mansell. McCullum v.

Orlando Regional Healthcare Systems, Inc., 768 F.3d 1135, 1144 (11th Cir.

2014).

Kathy Mansell and Ken Mansell fail to allege that either of them

sought anything for themselves from Memorial. Neither asked to be a

patient or to use any aspect of the goods and services that Memorial offers

to individuals seeking the services of a hospital. They both wanted

Memorial to provide on-site ASL interpreters for Robert Mansell, a disabled

deaf person. The services they sought were services for Robert Mansell,

not for themselves. Neither was denied goods, services, facilities,

privileges, advantages, or accommodations by Memorial. Neither states a

claim for damages under the RA § 794(a) and ADA §12182(b)(1)(E).

McCullum, 768 F.3d at 1142.

Kathy Mansell and Ken Mansell argue that the RA § 794a(a)(2), not

just § 794(a), authorizes claims against Memorial. Section 794a(a)(2) is

the section that authorizes “a person aggrieved” to bring an action for the

violation. They urge the Court to follow the holding in the Second Circuit

decision in Loeffler v. Staten Island University Hosp., 582 F.3d 268 (2d Cir.

2009). The Loeffler Court held § 794a(a)(2)’s language that authorized “a

person aggrieved” to bring an action meant that a person who can show an

injury traceable to a violation of a disabled person’s rights under the RA

can bring a claim. Loeffler, 582 F.3d at 280. The facts in Loeffler are

somewhat similar to this case. A deaf person was a patient in a defendant

hospital. Like Kathy Mansell and Ken Mansell here, the deaf patient’s

family members were required to interpret for him; specifically, his minor

children were required to interpret for him for several days. The children

missed school to act as interpreters for their father. The Loeffler Court

found that the ADA and RA should be read broadly to cover this type of

associational claim. The Loeffler Court held that the “person aggrieved”

language in § 794a(a)(2) gave a remedy to anyone who was injured by any

violation of a disabled person’s rights under the RA. The hospital violated

the father’s rights to communication and the children alleged an injury from

that violation. The Loeffler Court held that the children, therefore, were

persons aggrieved by the violation of the RA and entitled to sue under §

794a. Loeffler, 582 F.3d at 280-82.

Kathy Mansell and Ken Mansell argue, similarly, that Memorial

allegedly violated Robert Mansell’s rights by not providing a certified ASL

interpreter and they suffered injuries because of that violation. They allege

that they were forced to interpret for Robert just as the children in Loeffler

were forced to interpret for their father. Kathy Mansell and Ken Mansell

argue that, under Loeffler, they are persons aggrieved who can bring

actions under § 794a(a)(2). See Loeffler, 582 F.3d at 280-82.

The McCullum Court disagreed with Loeffler Court’s interpretation of

the “person aggrieved” language in § 794a. The McCullum Court explained

that § 794a had to be read in context of the entire RA, specifically §

794(a)(2). The McCullum Court stated that RA § 794(a)(2) “shows that the

RA was meant to ensure that ‘[n]o otherwise qualified individual with a

disability . . . shall, solely by reason of her or his disability, be excluded

from the participation in, be denied benefits of, or be subjected to

discrimination under any program or activity’ covered by the statute.”

McCullum, 768 F.3d at 1143 (emphasis in the original). The McCullum

Court explained that the “proscribed conduct is what the statute makes

unlawful.” Id. The McCullum Court concluded that “a party is ‘aggrieved’

within the meaning of § 794a(a)(2) only if she suffers injury because she

was subjected to one of those types of conduct,” either she was excluded

from participation in a program or she was subjected to discrimination

under any program. McCullum, 768 F.3d at 1143.

The Court has carefully considered both the Loeffler decision and the

McCullum decision. The Seventh Circuit has not spoken on this issue.

The Court concludes that the McCullum decision is correct. Section § 794

of the RA grants substantive rights to disabled persons. Section 12182 of

the ADA provides that the prohibited discrimination includes denying

“goods, services, facilities, privileges, advantages, accommodations, or

other opportunities” to an associate of a disabled person because of his or

her association with a disabled person. 42 U.S.C. § 12182(b)(1)(E). This

section of the ADA defines the substantive protections and obligations in

the relationship between covered facilities and disabled persons. The

Court agrees with the McCullum Court that the “person aggrieved”

language in § 794a(a)(2) refers to individuals whose substantive

protections as set forth above have been violated. The Court declines to

follow the decision in Loeffler.

Courts outside the Second Circuit have also consistently agreed with

the McCullum decision. See Souders v. School District of Philadelphia,

2018 WL 5117196, at *3-4 (E.D. Pa. October 19, 2018); Arce v. Louisiana,

2017 WL 5619376, at *14-16 (E.D. La. November 21, 2018); Labouliere v.

Our Lady of Lake Foundation, 2017 WL 4365989, at *5-6 (M.D. La.

September 29, 2017); Burton v. Cleveland Heights-University Heights City

School District Board of Education, 2017 WL 4348915, at *4 (N.D. Ohio

September 29, 2017); Moore v. Equity Residential Management, L.L.C.,

2017 WL 2670257, at *4 (N.D. Cal. June 21, 2017); Tveter v. Derry

Cooperative School District SAU # 10, 2017 WL 2062944, at *6 (D.N.H.

April 25, 2017); Bernius v. Ochsner Medical Center-North Shore, 2016 WL

10586188, at *4-5 (E.D. La. December 15, 2016); see also Durand v.

Fairview Health Services, 902 F.3d 836, 844 (8th Cir. 2018) (Eighth Circuit

did not address the issue because plaintiff lacked statutory standing under

either Loeffler or McCullum); R.S. by R.D. v. Butler County. Pennsylvania,

700 Fed. Appx. 105, 109 n.19 (3d Cir. 2017) (unpublished decision that

McCullum with approval).

As explained above, Memorial did not deny Kathy Mansell nor Ken

Mansell any “goods, services, facilities, privileges, advantages,

accommodations, or other opportunities” that Memorial offers to the public.

The only person that Memorial allegedly discriminated against was Robert

Mansell. Kathy Mansell and Ken Mansell, therefore, are not “persons

aggrieved” and are not authorized by either the ADA or the RA to bring this

action. McCullum, 768 F.3d at 1143.

Kathy Mansell and Ken Mansell argue that the McCullum decision is

distinguishable because the decision was made at summary judgment and

this case is at the motion to dismiss phase. Kathy Mansell and Ken

Mansell also argue the events underlying the alleged claims in McCullum

occurred before the ADA regulations were amended in 2010. They argue

that the 2010 amendments to the regulations gave them substantive rights.

Kathy Mansell and Ken Mansell are incorrect about the procedural

posture of the McCullum case. The alleged claims of the non-disabled

associates of the disabled person in McCullum were dismissed on a motion

to dismiss and not at summary judgment. McCullum, 768 F.3d at 1137.

Kathy Mansell and Ken Mansell are also incorrect about the impact of

the 2010 amendments to the ADA regulations. The amendments do not

change the outcome of this case. Kathy Mansell and Ken Mansell rely on

the amended version of 28 C.F.R. § 36.303. This amended section

addresses services to a disabled person by a public accommodation.

Memorial is a public accommodation. 28 C.F.R. § 36.104 Definitions.

Subsection (a) states the general rule set forth in the amended § 36.303:

(a) General. A public accommodation shall take those steps

that may be necessary to ensure that no individual with a

disability is excluded, denied services, segregated or otherwise

treated differently than other individuals because of the

absence of auxiliary aids and services, . . . .

28 C.F.R. § 36.303(a). The remainder of § 36.303 addresses particular

aspects of auxiliary aids and services that public accommodations may be

required to ensure that no discrimination will result. Subsection (c)

addresses effective communication:

(c) Effective communication.

(1) A public accommodation shall furnish appropriate auxiliary

aids and services where necessary to ensure effective

communication with individuals with disabilities. This includes

an obligation to provide effective communication to companions

who are individuals with disabilities.

. . . .

(3) A public accommodation shall not rely on an adult

accompanying an individual with a disability to interpret or

facilitate communication, except—

(i) in an emergency involving an imminent threat to the safety or

welfare of an individual or the public where there is no

interpreter available; or

(ii) where the individual with a disability specifically requests

that the accompanying adult interpret or facilitate

communication, the accompanying adult agrees to provide such

assistance, and reliance on that adult for such assistance is

appropriate under the circumstances.

. . . .

28 C.F.R. § 36.303(c)(1) and (c)(3).

Kathy Mansell and Ken Mansell argue that §36.303(c)(3) prohibited

Memorial from allegedly forcing them to interpret for Robert Mansell. They

argue that the subsection, therefore, gives them a claim. The Court

disagrees. Section 36.303(c)(3) states that Memorial cannot meet its

obligation to Robert Mansell, the disabled person, by relying on adults that

accompanied Robert to Memorial unless (1) an emergency required such

use or (2) Robert Mansell specifically requested Kathy Mansell and Ken

Mansell to interpret, each agreed, and the use of Kathy Mansell or Ken

Mansell as an interpreter was appropriate. The section defines protections

afforded Robert Mansell and Memorial’s obligations to Robert Mansell. For

instance, Memorial cannot satisfy Memorial’s obligation to Robert Mansell

by relying on an adult accompanying him to interpret for him. The section

does not create new rights for non-disabled companions such as Kathy

Mansell or Ken Mansell.

Kathy Mansell and Ken Mansell also rely on the Department of

Justice Guidance and Section-by-Section Analysis of the 2010

amendments to the ADA regulations to support their claim that §

36.303(c)(3) creates a cause of action for them. The Department of

Justice’s analysis addressed the exception in § 36.303(c)(3)(ii) to the

general rule that public accommodations cannot rely on adults

accompanying disabled persons to interpret for disabled persons. The

Justice Department emphasized that the exception only applied when both

the disabled person and the adult companion freely and voluntarily agreed

that the adult companion would interpret for the disable person:

Commenters requested that the Department make clear that

the public accommodation cannot request, rely on, or coerce an

accompanying adult to provide effective communication for an

individual with a disability, and that only a voluntary offer of

assistance is acceptable. The Department states unequivocally

that consent of, and for, the accompanying adult to facilitate

communication must be provided freely and voluntarily both by

the individual with a disability and the accompanying adult—

absent an emergency involving an imminent threat to the safety

or welfare of an individual or the public. The public

accommodation cannot coerce or attempt to persuade another

adult to provide effective communication for the individual with

a disability.

Nondiscrimination on the Basis of Disability by Public Accommodations and

in Commercial Facilities, Department of Justice Section-by-Section

Analysis, 75 Fed. Reg. 56236, at 56283, 2010 WL 3561890, at 56283

(September 15, 2010). Kathy Mansell and Ken Mansell argue that the

Justice Department’s interpretation prohibits coercion of accompanying

adults to interpret. They argue that Memorial violated that prohibition.

Kathy Mansell and Ken Mansell argue that they, therefore, are persons

aggrieved and are authorized to bring these claims under the RA.

The Court disagrees. The Department of Justice’s quoted comment

does not change the fact that § 36.303 of the ADA regulations defines the

protections afforded to disabled persons. The Justice Department analysis

emphasizes that the public accommodation is obligated to provide effective

communication with the disabled person. The public accommodation

cannot meet its obligation to the disabled person by using an adult

companion unless the arrangement is truly voluntary. The relationship at

issue is still the statutory obligation of the public accommodation to the

disabled person and the statutory protection afforded to the disabled

person. The Court does not read the Justice Department as attempting to

construe the regulation to create new rights for non-disabled accompanying

adults.

Furthermore, the Department of Justice interpretation of §

36.303(c)(3) is not entitled to any deference. Agency interpretations of a

regulation are only entitled to any deference by the Courts if the regulation

is genuinely ambiguous, the agency’s interpretation is reasonable, and the

interpretation must be an authoritative or official position of the agency.

Kisor v. Wilkie, __U.S.__, 139 S.Ct. 2400, 2415-17 (2019). In this case, §

36.303(c)(3) is quite clear: a public accommodation may not meet its

obligation to a disabled person to provide effective communication by

relying on an adult companion of the disabled person unless, inter alia, the

disabled person specifically asks for the arrangement and the associate

consents. The public accommodation may violate its obligation to the

disabled person if it should use an adult companion to interpret if, as

alleged here, the disabled person did not ask for this arrangement. The

regulation is clear; no agency interpretation is needed.

In addition, if the Justice Department actually sought to interpret the

regulation to create substantive rights for accompanying adults that were

not authorized by statute, that interpretation would be unreasonable as an

attempt to rewrite the ADA and RA. Unreasonable agency interpretations

of statutes are not entitled to deference. Kisor, 139 S.Ct. at 2415-17.

Section 36.303(c)(3) addresses the public accommodation’s

obligation to the disabled person not to discriminate against him or her.

Section 36.303(c)(3) does not create rights or obligations with respect to

non-disabled adult companions of the disabled persons such as Kathy

Mansell or Ken Mansell. The principles announced in McCullum are not

affected by the 2010 amendments to ADA regulations § 36.303(c)(3).

Congress created protections against discrimination against non-

disabled associates of disabled persons because of their association with

the disabled person. ADA 42 U.S.C. § 12182(b)(1)(E). Kathy Mansell and

Ken Mansell fail to allege a violation of this section. Congress did not

authorize any other claim for non-disabled associates of disabled persons.

Kathy Mansell and Ken Mansell therefore lack statutory standing. They fail

to state a claim. See Lexmark Int'l, Inc., 572 U.S. at 128.

THEREFORE, IT IS ORDERED that Defendant Memorial Medical

Center’s Motion to Dismiss Counts IV and V of Plaintiffs’ Complaint (d/e 6)

is ALLOWED. Counts IV and V are dismissed. Plaintiffs Kathy Mansell

and Ken Mansell are dismissed as parties to this case.

ENTER: September 30, 2019

s/ Tom Schanzle-Haskins

TOM SCHANZLE-HASKINS

UNITED STATES MAGISTRATE JUDGE