Miller v. Christ Hospital

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ALTA MARIE MILLER, et al., : Case No. 1:16-cv-937

:

Plaintiffs, : Judge Susan J. Dlott

:

v. : ORDER GRANTING IN PART AND

: DENYING IN PART DEFENDANTS’

CHRIST HOSPITAL, et al., : MOTION FOR SUMMARY

: JUDGMENT AND DENYING

Defendants. : PLAINTIFF’S MOTION FOR

: PARTIAL SUMMARY JUDGMENT

This matter is before the Court for consideration of Plaintiffs’ Motion for Partial

Summary Judgment (Doc. 26) and Defendants’ Motion for Summary Judgment (Doc. 27).

Appropriate responses and replies have been filed. (Docs. 28, 29, 33, and 34). The Court heard

oral argument regarding these motions on November 14, 2019.

Plaintiffs, a deaf couple, allege that they are entitled to certain auxiliary aids and services

and specific policy modifications under Title III of the Americans with Disabilities Act,

(“ADA”), 42 U.S.C. §§ 12181–12189, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, and Ohio Revised Code § 4112.02(G). Defendants, a hospital and an affiliated

organization of physicians, respond that they have extensive policies in place to ensure that they

meet or exceed all obligations to individuals with disabilities, including Plaintiffs.

For the reasons that follow, the Court will DENY Plaintiff’s Motion for Partial Summary

Judgment (Doc. 26) and GRANT Defendants’ Motion for Summary Judgment (Doc. 27) only as

to Counts IV, V, and VI. Defendants’ Motion for Summary Judgment will be DENIED as to

Counts I, II, and III.

I. BACKGROUND

A. Facts

As cross-motions for summary judgment would imply, many of the facts in this case are

undisputed. Plaintiffs Alta Marie and Matthew Miller, a married couple, are both deaf. Mr.

Miller lost his hearing as a child. He has a basic understanding of written English, and he is able

to use his voice for limited communication. Mr. Miller is able to read lips only if the person

speaking faces him directly, has no facial hair, speaks slowly, and deliberately moves their

mouth to form words. Even under optimal conditions, Mr. Miller estimates that he is able to

understand forty or fifty percent of what is being said. (M. Miller Aff., Doc. 23-1 at PageID

548–49.)

Ms. Miller has been deaf since birth. She has limited ability to read, write or understand

written English. She is able to speak some English, but her words may be unintelligible to those

unfamiliar with her speech patterns. American Sign Language (“ASL”) is the primary language

for both Mr. and Ms. Miller.

The Millers obtain medical care from Defendants The Christ Hospital and The Christ

Hospital Physicians (collectively “TCH”). The Millers are not the only deaf patients who

receive treatment at TCH.

TCH maintains a Patient and Guest Services Department staffed by an Experience

Officer, Senior Patient Representatives, and an Administrative Assistant. (Cheyne Dep.,1 Doc.

19-3 at PageID 185.) Each morning, TCH runs a “TCH Interpreter Language” report indicating

how many patients or companions at TCH that day require an interpreter and their preferred

1 Dana Cheyne is a Senior Patient Representative at TCH.

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language, including ASL. (Id. at PageID 186.) In addition, TCH provides annual training on

interpreter services and language access. (Id. at PageID 187–88.) TCH offers this mandatory

training to all employees as part of the online education system at TCH, and completion of the

training is reflected in an individual’s employment file. (Id. at PageID 187.)

If a patient requests an interpreter, TCH contacts one or more of five agencies with which

it contracts to provide interpreters. (Doc. 19-3 at PageID 212.) TCH attempts to schedule an

interpreter as soon as a patient makes an appointment. (Id. at PageID 193.) If deaf people come

to the emergency room (either by ambulance or self-transport), TCH requests an interpreter for

them once they arrive at the emergency room. (Id. at PageID 195.) According to TCH policy,

interpreters are instructed to arrive 15 minutes before the required appointment time. (Id. at

193.) If an emergency arises or TCH is unable to secure an in-person interpreter, TCH provides

approximately 13 devices for Video Remote Interpreting services (“VRI”). (Id. at PageID 213.)

Beginning in 2014, the Millers have received health care from TCH on at least 414

occasions. During approximately 370 of those visits, TCH provided effective ASL interpreters.

However, the Millers identify 44 visits during which they encountered problems with interpreters

and/or auxiliary aids. (Doc. 33 at PageID 1092–96.) Twenty-five of these unsatisfactory visits

involved scheduling problems or communication mishaps between TCH and the interpreter (e.g.,

interpreter arrived late, went to the wrong location, or was not informed of a scheduling change).

For nine of these unsatisfactory visits, TCH failed to request an interpreter (this number includes

an emergency room visit on January 11, 2019 where TCH did not request an interpreter until the

Millers arrived at TCH emergency room thereby forcing Mr. Miller to use a staff member’s

phone to type messages back and forth until an interpreter arrived). On three of these

unsatisfactory visits, TCH used VRI to communicate with the Millers. The Millers found the

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VRI ineffective, however, because the VRI device malfunctioned, was not placed in such a way

that both Mr. and Ms. Miller could view the screen, or was turned off every time the doctor left

the room (thereby imposing a new interpreter once the device was restarted upon the doctor’s

return). For five of the unsatisfactory visits, TCH provided an interpreter whose gender did not

match that of the patient for procedures during which private body parts would be exposed (e.g.,

a male interpreter for Ms. Miller’s gynecological examination or a female interpreter for Mr.

Miller’s hernia procedure).

On November 18, 2017, Mr. Miller was denied an x-ray without an appointment because

he required an interpreter. Specifically, on November 17, 2017, Mr. Miller’s doctor referred him

for a neck x-ray. Mr. Miller contacted the appropriate facility via videophone and was told he

did not need an appointment for an x-ray. Upon arriving at that same facility the next day, Mr.

Miller was told that he could not have an unscheduled x-ray because he required an interpreter.

(M. Miller Aff., Doc. 23-1 at PageID 570.)

Finally, the Millers allege that TCH’s failure to provide an interpreter or VRI for Ms.

Miller’s September 21, 2014 emergency room visit resulted in her misdiagnosis. (Doc. 23-1 at

PageID 550–53.) Mr. Miller took his wife to the TCH emergency room shortly after midnight on

September 21, 2014, because she was experiencing severe pain in her abdomen and sides. Her

pain level limited her ability to communicate, and Mr. Miller tried to communicate with medical

personnel on her behalf. He presented his agency card2 to request an interpreter upon their

arrival, again twenty minutes later while a medical assistant took Ms. Miller’s vital signs, a third

2 Mr. Miller’s agency card was issued by the Hearing Speech and Deaf Center of Cincinnati. It informs the recipient

that Mr. Miller is a deaf person and that he needs them to get a sign language interpreter so they can communicate.

It provides telephone numbers which can be used to contact a qualified interpreter at any time. (Exhibit A and B to

M. Miller Affidavit, Docs. 23-2 and 23-3.)

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time when they encountered a person they knew, and a fourth time as Ms. Miller was being

registered. Although the Millers were informed that an interpreter was on the way, none arrived

and no VRI was offered. After frustrating trips back and forth from the CT scan area to the

emergency room (as the CT technician wanted to wait for an interpreter but the emergency room

nurse wanted the scan performed immediately whether an interpreter was present or not), Ms.

Miller was given a CT scan, an IV, and a prescription. Mr. Miller tried to decipher

communications relating to her treatment by reading lips. However, lip reading is less effective

than an interpreter under the very best of circumstances for the Millers,3 and it was further

complicated by the fact that medical personnel spoke to them while walking around the room

performing tasks and looking back and forth between the two of them, thereby making it

impossible for Mr. Miller to fully understand what was being said. Ms. Miller was ultimately

diagnosed with a urinary tract infection. Days later, when her pain continued, Ms. Miller went to

her primary care physician who referred her to her gynecologist who discovered a fibroid. Once

the fibroid was surgically removed, Ms. Miller’s pain finally ceased.

Mr. Miller has emailed and texted TCH Patient and Guest Services many times regarding

the challenges they face obtaining routine medical care and communicating effectively. (Exs.

A–Z to M. Miller Aff., Doc. 23-2 through 23-27.) While TCH offers courteous responses, the

Millers claim that the communication issues continue unabated. (Id.)

3 Mr. Miller states that he is able to read lips with the assistance of a hearing aid only “when the person is facing me,

has no facial hair, speaks slowly and deliberately moves their mouth to form words.” He estimates that under the

best of circumstances he understands 40 to 50 percent of what is being said. (Doc. 23-1 at PageID 548–49.)

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B. Procedural Posture

The Millers initiated this action alleging three counts of discrimination and three counts

of retaliation pursuant to the Americans with Disabilities Act, the Rehabilitation Act of 1973,

and Chapter 4112 of the Ohio Revised Code. (Doc. 1.) The Millers filed a Motion for Partial

Summary Judgment on Counts 1–3, the discrimination claims. (Doc. 26.) TCH filed a Motion

for Summary Judgment on all claims. (Doc. 27.) The Millers do not oppose summary judgment

on Counts 4–6, the retaliation claims. (Doc. 29 at PageID 1042, n.1.) Thus, this matter is before

the Court on cross-motions for summary judgment as to the discrimination claims only.

Specifically, the Millers allege that TCH discriminated against, and continues to discriminate

against, them on the basis of their disability by denying them auxiliary aids and services

necessary to ensure effective communication and equal opportunity to participate in and benefit

from TCH’s health care services in violation of Title III of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12181–12189, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, and Ohio Revised Code § 4112.02(G).

II. APPLICABLE LEGAL STANDARD

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary

judgment is appropriate if “there is no genuine issue as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden to

show that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Provenzano v. LCI Holdings, Inc., 663 F.3d

806, 811 (6th Cir. 2011). The movant may support a motion for summary judgment with

affidavits or other proof or by exposing the lack of evidence on an issue for which the

nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,

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322–24 (1986). In responding to a summary judgment motion, the nonmoving party may not

rest upon the pleadings but must “present affirmative evidence in order to defeat a properly

supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257

(1986).

A court’s task is not “to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Id. at 249. “[F]acts must be viewed in the

light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”

Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added); see also E.E.O.C. v. Ford Motor

Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc). A genuine issue for trial exists when there is

sufficient “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477

U.S. at 252; see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014).

“The court need consider only the cited materials, but it may consider other materials in

the record.” Fed. R. Civ. P. 56(c)(3). “Where the parties have filed cross-motions for summary

judgment, the court must consider each motion separately on its merits, since each party, as a

movant for summary judgment, bears the burden to establish both the nonexistence of genuine

issues of material fact and that party's entitlement to judgment as a matter of law.” In re

Morgeson, 371 B.R. 798, 800–01 (B.A.P. 6th Cir. 2007).

III. ANALYSIS

As the parties correctly state, courts analyze disability discrimination claims under the

ADA, the Rehabilitation Act, and Ohio Revised Code Chapter 4112 pursuant to the same legal

framework. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201 (6th Cir. 2010); (Doc. 26 at

PageID 795 and Doc. 28 at PageID 1003).

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To prevail, a disabled person must prove that he or she was excluded

from participation in or denied the benefits of the hospital’s services,

programs, or activities, or otherwise discriminated against on

account of her disability. Shotz v. Cates, 256 F.3d 1077, 1079 (11th

Cir. 2001). Such exclusion, denial, or discrimination occurs when a

hospital fails to provide “appropriate auxiliary aids and services” to

a deaf patient, or a patient’s deaf companion, “where necessary to

ensure effective communication.” 28 C.F.R. § 36.303(c)(1).4

Silva v. Baptist Health South Florida, Inc., 856 F.3d 824 (11th Cir. 2017). Plaintiffs do not have

to establish that the means of communication used resulted in adverse medical treatment nor

articulate information they were unable to convey or understand during their hospital visits. Id.

at 833. “Instead, the correct standard examines whether the deaf patient experienced an

impairment in his or her ability to communicate medically relevant information with hospital

staff. The focus is on the effectiveness of the communication, not on the medical success of the

outcome.” Id. (emphasis in original).

A. Effectiveness of Communication

Pursuant to the ADA’s implementing regulations, “[a] public accommodation shall

furnish appropriate auxiliary aids and services where necessary to ensure effective

communication with individuals with disabilities . . . [including] companions who are individuals

with disabilities.” 28 C.F.R. § 36.303(c)(1). “Available auxiliary aids for deaf individuals

include qualified in-person interpreters, VRI, computer-aided transcription services, written

materials, and the exchange of handwritten notes.” Bustos v. Dignity Health, No. CV-17-02882-

PHX-DCG, 2019 WL 3532158, at *2 (D. Ariz. Aug. 2, 2019). “The type of auxiliary aid or

4 Title III of the ADA applies only to “places of public accommodation,” and the Rehabilitation Act requires that

Defendants receive Federal financial assistance. 42 U.S.C. § 12182(a) and 21 U.S.C § 794(a). Defendants in this

case admit that they operate a place of public accommodation and receive Federal financial assistance. (Doc. 4 at

PageID 38.) They further admit that the Millers are disabled people by virtue of being deaf. (Id.)

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service necessary to ensure effective communication will vary in accordance with the method of

communication used by the individual; the nature, length, and complexity of the communication

involved; and the context in which the communication is taking place.” 28 C.F.R. §

36.303(c)(1)(ii). “For instance, a deaf patient ‘may need a qualified interpreter to discuss with

hospital personnel a diagnosis, procedures, tests, treatment options, surgery, or prescribed

medication[,]’ whereas a person with the same disability ‘who purchases an item in the hospital

gift shop may need only an exchange of written notes to achieve effective communication.’”

Bustos, 2019 WL 3532158, at *3 (quoting Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334,

343 n.5 (11th Cir. 2012)).

“A public accommodation should consult with individuals with disabilities whenever

possible to determine what type of auxiliary aid is needed to ensure effective communication, but

the ultimate decision as to what measures to take rests with the public accommodation, provided

that the method chosen results in effective communication.” 28 C.F.R. § 36.303(c)(1)(ii). “A

hospital that chooses to use VRI must ensure that it provides video and audio over a connection

that delivers ‘clear, audible transmission of voices’ and ‘high-quality video images that do not

produce lags, choppy, blurry, or grainy images, or irregular pauses in communication[.]’”

Bustos, 2019 WL 3532158, at *2 (quoting 28 C.F.R. § 36.303(f)); see also Juech v. Children’s

Hosp. and Health Sys., Inc., 353 F.Supp.3d 772, 782 (E.D. Wis. 2018) (“[A]t some point it is no

longer an isolated technical glitch but instead amounts to discrimination if it results in ineffective

communication.”).

In determining the effectiveness of communication, the Court must “examine whether the

hospital provided the kind of auxiliary aid necessary to ensure that a deaf patient was not

impaired in exchanging medically relevant information with hospital staff.” Silva, 856 F.3d at

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835. Because the assistance required to ensure effective communication will vary based on the

specific circumstances surrounding each interaction, “the task of determining whether an entity .

. . has provided appropriate auxiliary aids where necessary is inherently fact-intensive.” Liese,

701 F.3d at 342. “Generally, the effectiveness of auxiliary aids and [] services is a question of

fact precluding summary judgment.” Bustos, 2019 WL 3532158, at *3 (quoting Chisolm v.

McManimon, 275 F.3d 315, 327 (3d Cir. 2001)). While communication need not be perfect, the

relevant statutes require that “hospitals afford a level of communication to a deaf patient about

medically relevant information that is substantially equal to that afforded to non-disabled

patients.” Silva, 856 F.3d at 835 (italics omitted).

In this case, Plaintiffs have offered evidence that they are deaf, use ASL as their primary

language, are limited in their ability to vocalize intelligible English words, and have a limited

ability to read and write English—due in part to the syntactical differences between ASL and

English. In addition, Ms. Miller’s medical conditions impact her comprehension and memory,

thereby further impairing her ability to use written communication. The Millers have identified

several instances in which TCH provided neither an ASL interpreter nor an effective alternative

aid. In addition, while VRI may sufficiently support effective communication under some

circumstances, the Millers have identified several occasions on which the VRI malfunctioned,

was unavailable, or was used improperly by TCH staff. Thus, the Court concludes that—

construing all evidence in favor of the Plaintiffs—reasonable jurors could find that the

Defendants failed to afford a level of communication to the Millers that is substantially equal to

that afforded to non-disabled patients.

In contrast, Defendants offer evidence that for approximately 370 medical appointments

since September 1, 2014, TCH provided ASL interpreters, VRI, and other appropriate auxiliary

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aids. Defendants also have offered at least limited evidence that Mr. Miller’s communication

skills are such that he may not require the highest level of auxiliary aid to communicate

effectively. In addition, while THC’s efforts have proven imperfect, perfection is not the

applicable standard. In fact, THC acknowledges that communication with non-disabled patients

is likewise imperfect as they argue that Plaintiffs seek “to hold health care providers liable for

inconveniences and scheduling issues common to all consumers of health care services

everywhere.” (Doc. 27 at PageID 877–78.) Accordingly, the Court concludes that issues of fact

preclude summary judgment for either party on the effective communication issue.

B. Injunctive Relief

Defendants contend that, even if effective communication was not achieved, they are

entitled to summary judgment because Plaintiffs lack standing to seek injunctive relief and

because the injunctive relief sought would create an undue burden on Defendants. The Court

will address these issues individually.

1. Standing

Plaintiffs in this case seek injunctive relief, including requiring TCH to improve staff

training, to increase the number of VRI devices available, and to confirm interpreter

appointments in the same way TCH confirms patient appointments. Defendants contend that

Plaintiffs lack standing to seek prospective injunctive relief. The Court disagrees.

Article III of the Constitution “requires the party who invokes the court’s authority to

show that he personally has suffered some actual or threatened injury as a result of the putatively

illegal conduct of the defendant.” ACLU v. Natl. Sec. Agency, 493 F.3d 644, 659 (6th Cir. 2007)

(quoting Valley Forge Christian Coll. v. Ams. United for Sep. of Church & State, Inc., 454 U.S.

464, 472 (1982)). “The injury inquiry is thus twofold where a plaintiff requests injunctive relief,

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as it requires plaintiff to show both ‘past injury and a real and immediate threat of future

injury.’” Mosley v. Kohl’s Dept. Stores, Inc., No. 19-1106, ___ F.3d ___, 2019 WL 5850463, at

*2 (6th Cir. November 8, 2019). One way to demonstrate the real and immediate threat of future

violations is to determine Plaintiffs’ likelihood of returning to the defendant hospital “through an

established pattern.” Juech, 535 F.Supp.3d at 785. A plaintiff can also demonstrate the requisite

threat of future injury by establishing “a plausible intent to return to the noncompliant

accommodation.” Mosley, 2019 WL 5850463, at *3.

In this case, Defendants acknowledge that Plaintiffs have sought medical treatment at

TCH more than 400 times since 2014. In addition, Plaintiffs testified that they intend to continue

to seek medical treatment at TCH because TCH facilities are conveniently located and already

maintain their medical records. Other courts have concluded that these very factors are sufficient

to establish standing in similar disability discrimination cases. Silva, 856 F.3d at 832–33; Juech,

535 F.Supp.3d at 786. This Court agrees.

2. Reasonableness of Modification and Waiver of Affirmative Defenses

As discussed above, “a public accommodation must provide auxiliary aids and services to

individuals with disabilities if such individuals need those aids and services to enjoy ‘meaningful

access’ to the public accommodation.” Childress v. Fox Associates, LLC, 932 F.3d 1165, 1170–

71 (8th Cir. 2019) (quoting Argenyi v. Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013)).

Once it is determined that the auxiliary aid requested is both reasonable and necessary, the public

accommodation must provide the aid “unless doing so would be an undue burden or would

fundamentally alter the nature of the provided benefit.” Id. at 1171; see also Access Center for

Indep. Living v. WP Glimcher, Inc., No. 3:15-cv-444, 2018 WL 2763453, at *4 (S.D. Ohio June

8, 2018). “Both the undue burden and the fundamental alteration arguments are affirmative

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defenses provided by the ADA. . . Failure to raise an affirmative defense before the district court

constitutes waiver of that defense.” Childress, 932 F.3d at 1171 (internal citations omitted).

In the case at bar, Plaintiffs contend that Defendants waived these affirmative defenses by

“failing to marshal any facts that the Millers’ requested auxiliary aids and services and policy

modifications are unduly burdensome or would impose a fundamental alteration of their

services.” (Doc. 29 at PageID 1050.) The Court disagrees.

First, Defendants specifically pled the affirmative defense of undue burden in their

answer. (Doc. 4 at PageID 42.) Second, Defendants are not obligated to provide evidence in

support of their undue burden defense until it is determined that the auxiliary aid or requested

modification is reasonable and necessary to ensure effective communication. See Childress, 932

F.3d at 1171; see also Access Center for Ind. Living, 2018 WL 2763453, at *4. Because issues

of fact preclude summary judgment on the reasonableness and necessity of the requested aids

and modifications, Defendants are not yet obligated to produce evidence that the requests would

cause an undue burden.

C. Monetary Damages

Monetary damages are not available under Title III of the ADA. Southwell v. Summit

View of Farragut, LLC, 494 F.App’x 508, 512 (6th Cir. 2012). Under the Rehabilitation Act,

however, compensatory damages are available upon “a showing of intent to discriminate.” Hill

v. Bradley Cty. Bd. of Educ., 295 F.App’x 740, 742 (6th Cir. 2008).

To prove intent to discriminate for Rehabilitation Act purposes, a plaintiff must prove a

defendant acted with “deliberate indifference.” Id.; Silva, 856 F.3d at 841; Juech, 353 F.Supp.3d

at 782–83; Bustos, 2019 WL 3532158, at *4. To establish deliberate indifference, a plaintiff

must show that “the defendant knew that harm to a federally protected right was substantially

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likely and . . . failed to act on that likelihood.” Liese, 701 F.3d at 344–45; Juech, 353 F.Supp.3d

at 782; Silva, 856 F.3d at 841 (using the same quoted language). “As such, a hospital’s failure to

provide an interpreter on demand is not sufficient to support a finding of deliberate indifference .

. . Rather, a plaintiff must show that hospital staff knew there was a substantial likelihood that

they would be unable to communicate effectively absent an interpreter, but still made a

‘deliberate choice’ not to provide one.” Martin v. Halifax Healthcare Sys., Inc., 621 F.App’x

594, 604 (11th Cir. 2015).

In the case at bar, the Millers repeatedly texted or emailed their communication failures

and ongoing frustrations to a Senior Services Representative at TCH. (See, e.g., Doc. 23-7 at

PageID 589; Doc. 23-9 at PageID 591–92; Doc. 23-10 at PageID 593; Doc. 23-11 at PageID

595; Doc. 23-13 at PageID 598; 23-14 at PageID 599–600; Doc. 23-15 at PageID 601; Doc. 23-

17 at PageID 605; Doc. 23-18 at PageID 606–07; Doc. 23-19 at PageID 608–09; Doc. 23-20 at

PageID 610; Doc. 23-21 at PageID 612.) Thus, Plaintiffs have established that Defendants knew

about the alleged past and potential future violations. However, TCH took at least some action

in response to many of the alleged violations. (See, e.g., Doc. 23-7 at PageID 588; Doc. 23-9 at

PageID 591; Doc. 23-10 at PageID 593; Doc. 23-12 at PageID 596; Doc. 23-16 at PageID 602;

Doc. 23-19 at PageID 608; Doc. 23-22 at PageID 613.) Plaintiffs allege that TCH’s responses,

however, were inadequate to protect Plaintiffs’ right to effective communication. Because

Plaintiffs have offered evidence that Defendants’ actions resulted in little improvement to their

allegedly ineffective communication, reasonable jurors could disagree regarding whether

Defendants essentially failed to act to protect their rights. Accordingly, issues of fact preclude

summary judgment on the Plaintiffs’ claims for monetary compensation.

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IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Partial Summary Judgment (Doc. 26) is

DENIED. Defendants’ Motion for Summary Judgment (Doc. 27) is DENIED as to Counts I, II,

and III but GRANTED as to Counts IV, V, and VI.

The Court will conduct a Final Pretrial Conference on December 16, 2019 at 10:00 a.m.

The Plaintiffs and a TCH corporate officer or board member with full settlement authority

must attend the Final Pretrial Conference. Trial in this matter is scheduled for January 13,

2020 at 9:30 a.m.

IT IS SO ORDERED.

Dated: November 18, 2019 S/Susan J. Dlott___________________

Judge Susan J. Dlott

United States District Court

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