Mia Bennett v. Hurley Medical Center

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0245p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

MIA BENNETT,

│

Plaintiff-Appellant, │

> No. 23-1162

│

v. │

│

HURLEY MEDICAL CENTER, │

Defendant-Appellee. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:21-cv-10471—Paul D. Borman, District Judge.

Argued: October 19, 2023

Decided and Filed: November 9, 2023

Before: SUTTON, Chief Judge; CLAY and LARSEN, Circuit Judges.

_________________

COUNSEL

ARGUED: Nicholas B. Roumel, NACHT & ROUMEL, P.C., Ann Arbor, Michigan, for

Appellant. Michael W. Edmunds, GAULT DAVISON, PC, Grand Blanc, Michigan, for

Appellee. ON BRIEF: Nicholas B. Roumel, NACHT & ROUMEL, P.C., Ann Arbor,

Michigan, for Appellant. Michael W. Edmunds, GAULT DAVISON, PC, Grand Blanc,

Michigan, for Appellee.

_________________

OPINION

_________________

CLAY, Circuit Judge. Plaintiff Mia Bennett appeals the district court’s grant of summary

judgment in favor of Defendant Hurley Medical Center (“Hurley”). Plaintiff claims that Hurley

violated her rights under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 2

§ 12131 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and Michigan’s Persons

with Disabilities Civil Rights Act (“PWDCRA”), Mich. Comp. Laws § 37.1101 et seq., when it

stopped permitting her service dog, Pistol, to accompany her while working as a student nurse.

For the reasons set forth below, we AFFIRM the district court’s grant of summary judgment.

I. BACKGROUND

A. Factual Background

In the fall of 2020, Plaintiff completed a clinical rotation at Hurley as a part of her

education as a nursing student at University of Michigan-Flint (“UM-Flint”). She worked on

floor 7 East (“7E”) for four hours once a week for six weeks. Although student nurses on the

rotation were assigned to two floors, 7E and 9 East (“9E”), Plaintiff could only work on 7E, the

floor on which her UM-Flint faculty supervisor worked.

Before beginning the rotation, she requested that her service dog, Pistol, be permitted to

accompany her on her rotation, and Hurley agreed. Pistol assists Plaintiff with her panic

disorder, a condition that causes her to have intermittent panic attacks. For the attacks, she takes

the medication Ativan as needed, which takes approximately five to ten minutes to become

effective. Without this medication, Plaintiff’s panic attacks can last over an hour, cause her to

experience shortness of breath and chest tightness, and even make her feel as if she is “going to

die.” Bennett Depo., R. 14-2, Page ID #159–60.

Plaintiff trained Pistol to recognize the symptoms she exhibits just before a panic attack

and to alert her to these symptoms so that she can take Ativan before an attack begins. She is

able to take Ativan when the attacks begin, but, as Plaintiff testified in her deposition, when she

is “physiologically worked up[,] it takes a little bit longer for [the Ativan] to work.” Id. at Page

ID #163. Plaintiff does not recognize the signs of a panic attack as well on her own as she does

with Pistol, and, as she attested, by the time that she has recognized her symptoms, she “could be

well on [her] way to a full-blown panic attack.” Id. at Page ID #162–63.

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 3

1. Hurley’s Service Animal Policy

Hurley’s initial decision to allow Pistol in the hospital was informed by its written policy

pertaining to service animals, titled “Hurley Medical Center Standard Practice: Service Animals”

(“the Policy”). Hurley Service Animal Policy, R. 16-7, Page ID #517–521. It states that

“[e]very attempt will be made to not separate or attempt to separate a Handler from her or his

Service Animal.” Id. at Page ID #518. A “Handler” is defined as a “person with a service or

therapy animal,” and is not explicitly restricted to patients or visitors to the hospital. Id., Page ID

#517. However, other provisions of the Policy, including those discussing how Hurley responds

to a dog who has caused an allergic reaction, appear to refer to a patient handler. The section of

the Policy governing allergies states:

In the event that a patient or a Facility staff member is allergic to, or has a phobia

about animals, the Facility shall further modify its policies, practices and

procedures to permit a Service Animal to remain with a patient in an inpatient

room by, for example, moving the patient to another comparable room, changing

staff schedules, or using other nondiscriminatory methods so that the presence of

the Service Animal would not pose a direct threat and would not require a

fundamental alteration in the Facility’s policies, practices, or procedures. Any

patient or staff member with an allergy to animals shall provide verification

within a reasonable time frame of request.

Id., Page ID #521.

The Policy provides that service animals will generally be excluded from certain sterile

areas, including “where a patient is immunosuppressed or in isolation,” such as operating rooms

or the post-anesthesia recovery unit. Id., Page ID #520. It further states that, a service animal

will be

generally permitted in inpatient and outpatient areas unless an individualized

assessment is made to exclude a Service Animal. This assessment shall be based

on reasonable [judgment] that relies on current medical knowledge or on the best

available objective evidence to ascertain: the nature, duration and severity of the

risk; the probability that a potential injury will actually occur; and whether any

reasonable modifications of policies, practices or procedures or the provision of

auxiliary aids or services will mitigate the risk.1

Id.

1

This Policy largely tracks Department of Justice regulations implementing the ADA.

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2. Pistol Causes Allergic Reactions

On the first day that Plaintiff brought Pistol to the hospital, one staff member and one

patient reported experiencing allergic reactions. The staff member, Alexis Neal, obtained

medical treatment after she suffered a severe allergic reaction from dog allergies. Neal’s nurse

manager believed that Neal had not seen Pistol before she suffered an allergic reaction because,

when she approached the manager, she asked “is there a dog on the floor because I’m starting to

have allergic reactions.” Martin Depo., R. 14-4, Page ID #245. Neal left work for the rest of the

day on September 9, 2020, and did not return until September 11, requiring the nurse manager

for the floor to find a replacement for Neal, a unit clerk. Because the manager could not find

another unit clerk to replace Neal on such short notice, she had to assign an assistant nursing

manager to Neal’s position, which meant that the assistant nursing manager had to primarily sit

at the nurses’ station and could not be “mobile” on the floor. Id. at Page ID #246. The nurse

manager stated that this immobility caused a “burden on the unit.” Id.

On the same day, another nurse reported that a patient had used the call system to ask

whether there was a dog on 7E because the patient had begun to have an allergic reaction.

Additionally, the nurse manager learned that another nurse, Tanesha Hippolyte, had severe dog

allergies. Hippolyte was not working in the hospital the day that Plaintiff brought Pistol, but she

was regularly assigned to 7E. However, the manager rescheduled Hippolyte so that she would

no longer work on 7E for the duration of the Plaintiff’s rotation. Hurley staff informed Plaintiff

that there were individuals with dog allergies on 9E as well.

3. Hurley Reevaluates the Accommodation

After Hurley became aware that one patient and one employee had allergic reactions to

Pistol, Hurley began to reevaluate Plaintiff’s ability to have Pistol accompany her at all times in

the hospital. When Summer Jenkins, the Hurley staff member charged with ADA compliance,

informed Plaintiff that her accommodation would be reevaluated, Plaintiff offered to have Pistol

wear a “Shed Defender,” a type of body suit that covers dogs and minimizes the spread of

allergens while Pistol was in the hospital. Bennett Depo., R. 14-2, Page ID #169. However, in a

later email to Jenkins on September 15, 2020, Plaintiff stated that she had “inquired about the

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 5

[S]hed [D]efender” but that the company had told her that “they would not fit [Pistol’s] breed.”

Email, R. 14-9, Page ID #417. She told Jenkins that she was “looking for other options, or

possibly seeing if [her] mom could alter it to fit” Pistol. Id. Plaintiff never informed Hurley

whether she had successfully found those “other options.”

Just a few hours later, Jenkins emailed Plaintiff back, revoking her ability to have Pistol

with her at all times in the hospital. Specifically, Jenkins acknowledged that Pistol had already

caused allergic reactions, and, because Hurley had confirmed that individuals with dog allergies

were present on both floors 7E and 9E, Hurley could not permit Pistol to accompany Plaintiff on

either floor.2 Jenkins further stated that Hurley had “researched any options that would not pose

a direct threat and would not require a fundamental alteration in the hospital’s policies, practices,

or procedures,” and concluded that the reasonable accommodation it could provide moving

forward would be to crate Pistol in the hospital and provide Plaintiff with “the opportunity to

take necessary breaks” in order to be with Pistol. Email, R. 14-9, Page ID #418. Jenkins stated

that the hospital remained “open to continued dialogue on this matter.” Id. Jenkins stated in her

deposition that the Shed Defender remained an available option from Hurley’s perspective, but

acknowledged that, by Plaintiff’s own admission, she had not yet been able to obtain one to fit

Pistol. At this point, time was of the essence because Plaintiff needed to appear for her rotation

the following day, September 16, 2020.

Jenkins recalled that Plaintiff did not bring Pistol to the hospital with her at all on

September 16, 2020. On September 17, 2020, Plaintiff responded to Jenkins’ email stating that

“[w]hile I appreciate the revised accommodation offer,” of the crate, “it will not work for the

proper utilization of the service dog.” Email, R. 16-12, Page ID #585. Plaintiff did take Jenkins

up on her offer of continued dialogue, and they, along with two officials from UM-Flint, met

over video conference on September 21, 2020.

This conversation did not alter Hurley’s position. On September 22, 2020, Jenkins

emailed Plaintiff to confirm that Pistol would only be allowed in the hospital if he was kept in a

2

It is unclear why this email references 9E, as nowhere else does the record indicate that Plaintiff worked

on the ninth floor during her rotations, and other hospital staff stated that Plaintiff could not work on 9E because no

UM-Flint faculty member would be able to supervise her there.

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 6

crate on a separate floor during the day. She again acknowledged that Plaintiff would be

permitted to take both scheduled and unscheduled breaks to visit Pistol, but emphasized Hurley’s

position that having Pistol accompany Plaintiff while working on 7E was “not reasonable”

because of the previous allergic reactions he had caused. Email, R. 16-14, Page ID #590. She

also indicated that relocating patients and staff members with dog allergies from 7E to another

floor would be “unworkable and would directly compromise patient care.” Id. She concluded

by acknowledging that Hurley had “extensive dialogue with medical care providers to assess”

Plaintiff’s accommodation. Id. at Page ID #591. Based on this dialogue and “the objective

evidence,” Jenkins stated that permitting Pistol to accompany Plaintiff “creates a[n]

unreasonably high probability that patient care will be adversely affected.” Id. In a later, final

email, Jenkins advised Plaintiff that Hurley would provide space for a crate for Pistol on the

eighth floor. The email further reiterated that Plaintiff would receive regular, scheduled breaks,

and that if Plaintiff needed to leave the floor for an unscheduled break, “Hurley [would] make

every effort to accommodate” those breaks. Email, R. 16-15, Page ID #593.

Plaintiff finished her rotation at Hurley on 7E without Pistol with her or in a crate and

without experiencing a panic attack. In the rest of her time as a nursing student at UM-Flint,

Plaintiff completed two rotations at other hospitals with Pistol, and at least one other rotation at

Hurley without Pistol in the Pediatric Unit, Pediatric Intensive Care Unit, and the Emergency

Department.

Hurley’s primary concerns about Pistol were his allergens, specifically that he could

cause future allergic reactions in patients and staff on 7E. Because Hurley contended that it

could not move Plaintiff from 7E, it would need to move allergic staff members or patients from

7E to avoid more allergic reactions. However, Hurley staff stated that relocating staff and

patients would be difficult for the hospital and could compromise patient care. Moving nurses

would be difficult because Hurley nurses are union members; their collective bargaining

agreement imposes additional requirements when adjusting schedules. And relocating staff more

generally would be onerous because the hospital was short-staffed during the COVID-19

pandemic. Additionally, because certain nurses assigned to floors can perform medical care that

nurses assigned to other floors cannot, moving certain nurses to a different floor could impact

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 7

patient care. For example, according to Hurley’s chief nurse, nurses on 7E play a role in a

specific type of kidney dialysis that nurses on 9E cannot perform. Moving allergic patients from

7E could also be difficult because the hospital was “packed” during COVID-19, and patients

would need to be moved to an area of the hospital that could provide the specific care they

needed. Martin Depo., R. 14-4, Page ID #248. Furthermore, even if Hurley could move allergic

patients, it might not know which patients have dog allergies. Although it asks patients whether

they have allergies generally before treating them, it does not specifically ask whether patients

are allergic to dogs.

Certain Hurley decision-makers expressed concerns about potential issues other than

allergies, such as whether a dog on a floor with immunocompromised or unconscious patients

could be dangerous. The hospital places most of its patients with kidney disease on 7E because

it has the capability to provide a certain type of kidney dialysis on that floor, and, as a Hurley

staff member stated, many patients with kidney disease are immunocompromised. One Hurley

staff member also worried about a dog who produces allergens being around unconscious

patients because these patients may not be able to communicate that they are experiencing an

allergic reaction; however, there is a dispute as to whether any patients on 7E were unconscious.

One staff member stated in her deposition that 7E did not have any unconscious patients, but

another staff member stated that “many of the patients on the floors3 where Plaintiff was

assigned arrive unconscious, and can’t be screened for dog allergies.” Bade Affidavit, R. 14-10,

Page ID #421.

B. Procedural History

On March 1, 2021, Plaintiff filed her complaint in the United States District Court for the

Eastern District of Michigan. Plaintiff seeks monetary damages and equitable relief.4 The

district court granted summary judgment for Defendant, finding that no reasonable juror could

3

Again, there is no other indication in the record that Plaintiff was assigned to multiple floors; rather, the

record indicates that she was only ever assigned to 7E.

4

Plaintiff alleged in her complaint that, although the fall 2020 semester is over, her request for injunctive

relief is not moot because “[t]his dispute is likely to arise again” as Plaintiff will participate in future rotations.

Compl., R. 1, Page ID #8. Neither party has indicated how likely it is that Plaintiff will complete a future rotation at

Hurley, although the record reflects that she has completed at least one there since fall 2020. Additionally, at oral

argument, Plaintiff’s counsel represented that she was, at that time, still an undergraduate nursing student.

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 8

conclude that Hurley failed to provide Plaintiff with a reasonable accommodation because Pistol

constituted a direct threat to the health and safety of patients and staff. The district court also

held that Plaintiff had abandoned her intentional discrimination claim by failing to respond to

Defendant’s arguments in her response to the motion for summary judgment. The district court

further concluded that Hurley did not obstruct the interactive process required by Title II of the

ADA because Jenkins’ emails with Plaintiff at all times indicated that Hurley remained open to

continued conversation as to Plaintiff’s accommodation. Finally, the district court also granted

summary judgment for Defendant on Plaintiff’s Rehabilitation Act and PWDCRA claims

because it agreed with the parties’ conclusions that these claims should be resolved consistently

with Plaintiff’s ADA claims. Plaintiff’s timely appeal followed.

II. DISCUSSION

A. Standard of Review

This Court reviews a district court’s grant of summary judgment de novo. Williams v.

Maurer, 9 F.4th 416, 430 (6th Cir. 2021). “Summary judgment is proper ‘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.’” Scott v. First S. Nat’l Bank, 936 F.3d 509, 516 (6th Cir. 2019) (quoting Fed. R.

Civ. P. 56(a)). “When evaluating a motion for summary judgment, the court must view the

evidence in the light most favorable to the party opposing the motion,” and “all reasonable

inferences must be made in favor of the non-moving party.” Id. (citations omitted) (cleaned up).

“However, ‘the mere existence of a scintilla of evidence in support of the [non-moving party’s]

position will be insufficient [to defeat a motion for summary judgment].’” Levine v. DeJoy,

64 F.4th 789, 796 (6th Cir. 2023) (alteration in original) (quoting White v. Baxter Healthcare

Corp., 533 F.3d 381, 390 (6th Cir. 2008)). Instead, “‘there must be evidence on which the jury

could reasonably find for the’ non-moving party.” Id. (quoting White, 533 F.3d at 390).

B. Analysis

Title II of the ADA provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination by any such

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entity.” 42 U.S.C. § 12132. Plaintiff also brings claims under Section 504 of the Rehabilitation

Act and the Michigan PWDCRA. Generally, this Court interprets claims under Title II of the

ADA and the Rehabilitation Act together because the language of the two statutes materially

differs in only two ways. See, e.g., Knox Cnty., Tennessee v. M.Q., 62 F.4th 978, 1000 (6th Cir.

2023); S.S. v. E. Kentucky Univ., 532 F.3d 445, 452–53 (6th Cir. 2008). First, the Rehabilitation

Act applies only to federally funded, rather than “public” entities. S.S., 532 F.3d at 452.

Defendant does not contest that it meets both classifications. Second, the Rehabilitation Act

requires that discrimination occur “solely by reason of” the plaintiff’s disability, whereas the

ADA requires that it occur “because of” the plaintiff’s disability. Lewis v. Humboldt Acquisition

Corp., 681 F.3d 312, 315 (6th Cir. 2012) (en banc) (quoting 29 U.S.C. § 794(a) & 42 U.S.C.

§ 12112(a)). Because Plaintiff has failed in the instant case to meet the less stringent causation

standard under the ADA, we analyze her claims under the ADA and the Rehabilitation Act

together. See Gohl v. Livonia Pub. Schs. Sch. Dist., 836 F.3d 672, 682 (6th Cir. 2016). The

Michigan PWDCRA similarly “substantially mirrors” the ADA, and these claims are “generally

analyzed identically.” Hrdlicka v. Gen. Motors, LLC, 63 F.4th 555, 566 (6th Cir. 2023)

(citations omitted); see also Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir. 2012). Neither

party disputes that we should analyze the three statutes together. Thus, if Defendant is entitled to

summary judgment on the ADA claim, then it is also entitled to summary judgment on the

Rehabilitation Act and Michigan PWDCRA claims.

1. Intentional Discrimination

a. Preservation of the Issue for Appeal

Plaintiff challenges the district court’s determination that she abandoned her claim of

intentional discrimination by failing to raise arguments in support of it in her response to

Defendant’s motion for summary judgment. When a litigant fails to address a claim in response

to a motion for summary judgment, that claim is deemed abandoned or forfeited. See Nathan v.

Great Lakes Water Auth., 992 F.3d 557, 564 n.1 (6th Cir. 2021) (citing Brown v. VHS of

Michigan, Inc., 545 F. App’x 368, 372 (6th Cir. 2013)); Palma v. Johns, 27 F.4th 419, 429 n.1

(6th Cir. 2022). To address an argument in the district court, “a litigant must provide some

minimal argumentation in favor of it.” United States v. Huntington Nat. Bank, 574 F.3d 329, 331

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 10

(6th Cir. 2009) (citation omitted). “[W]e give de novo review to [the] conclusion that [an]

argument was forfeited.” Id.

The district court erred in concluding that Plaintiff abandoned her intentional

discrimination claim. In its motion for summary judgment, Defendant correctly acknowledged

that, to succeed, Plaintiff must show that Defendant discriminated against her “because of her

disability,” rather than because of its concerns about Pistol. Anderson v. City of Blue Ash, 798

F.3d 338, 358 (6th Cir. 2015) (quoting Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir.

2005), abrogated on other grounds as recognized by Anderson, 798 F.3d at 357 n.1). In

response, Plaintiff failed to point to sufficient record evidence to show that Hurley barred Pistol

from accompanying Plaintiff because of her panic disorder. However, Plaintiff did not wholly

fail to make arguments supporting a claim for intentional discrimination. To the contrary, she

argued in her response to the motion for summary judgment that Hurley’s exclusion of Pistol

from 7E effectively excluded her from participation in, and denied her the benefits of, the

rotation. She consistently framed her arguments using the prima facie case for intentional

discrimination under Title II of the ADA, even if she never directly stated or put forward

sufficient evidence that Hurley acted because of her panic disorders. That a party’s arguments

are ultimately unsuccessful does not mean that they do not exist. Therefore, the district court

erred in finding that Plaintiff abandoned her claim of intentional discrimination. But, because

Plaintiff presented no evidence to show that Hurley discriminated against her because of her

disability, the district court did not err in ultimately granting summary judgment in Defendant’s

favor.

b. Analysis

To show causation as part of an intentional discrimination claim under Title II—that

discrimination was “because of” a disability—a plaintiff can use either direct or indirect

evidence of discrimination. Gohl, 836 F.3d at 682 (citation omitted). Because the record

contains no direct evidence of discrimination against Plaintiff based on her disability, Plaintiff

must meet the requirements of the familiar McDonnell Douglas burden shifting framework,

which first requires the plaintiff to establish a prima facie case of discrimination. Id.; Anderson,

798 F.3d at 356 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) & Turner v.

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 11

City of Englewood, 195 F. App’x 346, 353 (6th Cir. 2006)). “To establish a prima facie case of

intentional discrimination under Title II of the ADA, a plaintiff must show that: (1) she has a

disability; (2) she is otherwise qualified; and (3) she was being excluded from participation in,

denied the benefits of, or subjected to discrimination under the program because of her

disability.” Anderson, 798 F.3d at 357. To show the third prong of the prima facie case, a

plaintiff “must present evidence that animus against the protected group was a significant factor

in the position taken by the . . . decision-makers themselves or by those to whom the decision-

makers were knowingly responsive.” Id. (quoting Turner, 195 F. App’x at 353). If a plaintiff

establishes a prima facie case under Title II, the burden shifts to the defendant to proffer a

“‘legitimate, nondiscriminatory’ reason for its actions.” Gohl, 836 F.3d at 683 (quoting Monette

v. Elec. Data Sys. Corp., 90 F.3d 1173, 1179, 1185 (6th Cir. 1996)). If the defendant does so, the

burden shifts back to the plaintiff to show that the “proffered reason is merely a pretext for

unlawful discrimination.” Id. (citing Monette, 90 F.3d at 1186–87).

Plaintiff asserts that the hospital intentionally discriminated against her when it prevented

Pistol from accompanying her on her rotation, but she has not pointed to sufficient evidence

in the record to show that Defendant’s actions were motivated by Plaintiff’s disability. This

Court’s decision in Anderson is instructive. 798 F.3d 338. In it, the Court assessed whether an

ordinance that prohibited housing farm animals at a private residence intentionally discriminated

against an individual who used a miniature horse as a service animal. Id. at 348. Although the

record showed that the city passed the ordinance because of the plaintiff’s horse and other farm

animals on her property, the Court found that this evidence did not show that the city passed the

ordinance “because [plaintiff] is disabled” but rather that the city passed it because of citizen

complaints. Id. at 359 (emphasis in original). Similarly, in Dillery, the Court found that police

who stopped an individual using a wheelchair in the roadway did not do so “because of her

disability,” but, instead, did so in response to concerns expressed by other citizens who had to

“stop or swerve” to miss the plaintiff. 398 F.3d at 568; see also Hamm v. City of Gahanna,

Ohio, 109 F. App’x 744, 747 (6th Cir. 2004) (finding no intentional discrimination when a

decision was based entirely on neighbors’ opposition to the project rather than discriminatory

animus).

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Similarly, here, Plaintiff has not shown that the hospital prevented Pistol from

accompanying Plaintiff on her rotations because of Plaintiff’s panic disorder. By contrast, the

record evidence clearly shows that the decision was motivated by staff and patient complaints of

allergic reactions. But these concerns are all related to Pistol, rather than Plaintiff’s panic

disorder. A Hurley staff member involved in the decision to exclude Pistol even testified that

she did not know what specific medical condition Plaintiff had. As in the district court, on

appeal, Plaintiff does not argue that the hospital acted out of animus against her disability.

Instead, she continues to argue that the separation from Pistol denied her the benefits of the

rotation and effectively excluded her from the rotation. But, as this Court’s precedent shows, she

must show that this purported denial of the benefits of the rotation was because of her disability.

Because she has not done so here, she has failed to establish a prima facie case of intentional

discrimination, and the district court properly granted summary judgment in Defendant’s favor

as to Plaintiff’s intentional discrimination claim.

2. Failure to Accommodate

“Title II does not expressly define ‘discrimination’ to include a refusal to make a

reasonable accommodation.” Madej v. Maiden, 951 F.3d 364, 372 (6th Cir. 2020) (quoting Wis.

Cmty. Servs. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir. 2006) (en banc)). Instead, the

Department of Justice’s (“DOJ”) regulations implementing the ADA specify that “[a] public

entity shall make reasonable modifications in policies, practices, or procedures when the

modifications are necessary to avoid discrimination on the basis of disability, unless the public

entity can demonstrate that making the modifications would fundamentally alter the nature of the

service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). Additionally, this Court has

repeatedly stated that failure-to-accommodate claims are cognizable under Title II of the ADA,

despite the lack of clear language in the statute. See, e.g., Knox Cnty., 62 F.4th at 1000

(“A plaintiff may allege disability discrimination [under Title II] under two available theories:

intentional discrimination and failure to reasonably accommodate.”); Jones v. City of Detroit,

Michigan, 20 F.4th 1117, 1119 (6th Cir. 2021) (“A Title II plaintiff may bring a claim for

intentional discrimination or for failure to provide a reasonable accommodation.”) (citing Roell

v. Hamilton County, 870 F.3d 471, 488 (6th Cir. 2017)); Wilson v. Gregory, 3 F.4th 844, 859

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 13

(6th Cir. 2021) (recognizing a failure-to-accommodate claim under Title II because “Title II

imposes affirmative obligations on public entities and does not merely require them to refrain

from intentionally discriminating against the disabled”) (quoting Ability Ctr. of Greater Toledo v.

City of Sandusky, 385 F.3d 901, 910 (6th Cir. 2004)); Roell, 870 F.3d at 488 (“Two types of

claims are cognizable under Title II: claims for intentional discrimination and claims for a

reasonable accommodation.”) (citation omitted)); Ability Ctr., 385 F.3d at 907 (“[Title II] also

requires that public entities make reasonable accommodations for disabled individuals . . .”).

Defendant below expressly waived any argument that failure-to-accommodate claims are not

cognizable, so we will not examine that issue further.

Title II does not require a plaintiff to receive her “preferred” accommodation, Knox

Cnty., 62 F.4th at 1001, but merely a reasonable one that provides “meaningful access” to the

public entity, Ability Ctr., 385 F.3d at 907. “[T]he ‘determination of what constitutes [a]

reasonable [accommodation] is highly fact-specific, requiring case-by-case inquiry.’” Roell,

870 F.3d at 489 (quoting Anderson, 798 F.3d at 356). To assist in determining what constitutes a

reasonable accommodation of a service animal in a healthcare setting, the regulations

implementing the ADA and the, albeit scant, relevant case law are instructive.

a. Reasonable Accommodations for Service Animals

The DOJ has implemented regulations describing how service animals should be

accommodated by public entities under the ADA, and the parties largely agree that these

regulations provide a basis for assessing whether Defendant reasonably accommodated

Plaintiff’s requests under the ADA. The district court determined that the DOJ regulations and

guidance are entitled to deference. Neither party questions that conclusion on appeal. The

specific regulation addressing the accommodation of service animals begins with a general

presumption that service animals will be permitted in publicly accessible areas of public entities

by stating that a public entity “shall modify its policies, practices, or procedures to permit the use

of a service animal by an individual with a disability.”5 28 C.F.R. § 35.136(a). Specifically, it

5

A service animal is defined as “any dog that is individually trained to do work or perform tasks for the

benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental

disability.” 28 C.F.R. § 35.104. In the district court, Defendant contested whether Pistol constituted a service

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 14

directs that “[i]ndividuals with disabilities shall be permitted to be accompanied by their service

animals in all areas of a public entity’s facilities where members of the public, participants in

services, programs or activities, or invitees, as relevant, are allowed to go.” Id. § 35.136(g). The

appendix to the regulations specifically states that “a healthcare facility must also permit a

person with a disability to be accompanied by a service animal in all areas of the facility in

which that person would otherwise be allowed.” Id. § Pt. 35, App. A. However, it also states

that “it is generally appropriate to exclude a service animal from limited-access areas that

employ general infection-control measures, such as operating rooms and burn units.” Id.

Service animals need not be accommodated under every circumstance, and the

regulations specify the situations in which a public entity may reasonably exclude a service

animal. For example, a public entity may exclude the animal if it is “out of control,” or if it is

“not housebroken.” Id. § 35.136(b). The regulations also provide at least two general defenses

to accommodations that are applicable to service animals. First, if “the public entity can

demonstrate that making the modifications would fundamentally alter the nature of the service,

program, or activity,” of the public entity, it need not grant the accommodation. Id.

§ 35.130(b)(7). Second, if the entity can show that an individual’s participation in the activities

of the public entity poses a “direct threat to the health or safety of others,” the public entity may

exclude the individual. Id. § 35.139(a). In the context of a service animal, the appendix to the

regulations states that this means that, by extension, if an individual’s use of a service animal

poses a direct threat, it may be excluded under this provision. Id. § Pt. 35, App. A.

When determining whether an individual’s use of a service animal constitutes a direct

threat, the regulations direct public entities to conduct “an individualized assessment, based on

reasonable judgment that relies on current medical knowledge or on the best available objective

evidence,” to assess the following three factors: (1) “the nature, duration, and severity of the

risk;” (2) “the probability that the potential injury will actually occur;” and (3) “whether

reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or

services will mitigate the risk.” Id. § 35.139(b). To an extent, the direct threat analysis

animal under the ADA; however, the district court did not address this argument, and Defendant does not raise it on

appeal.

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 15

represents a specific application of another general defense in the regulations, which

acknowledges that “[a] public entity may impose legitimate safety requirements necessary for the

safe operation of its services, programs, or activities,” provided that these “safety requirements

are based on actual risks, not on mere speculation, stereotypes, or generalizations about

individuals with disabilities.” Id. § 35.130(h).

Plaintiff also cites guidance from the DOJ interpreting its own service animal regulations

under the ADA, which adds examples and clarification to the DOJ’s regulations. In relevant

parts, the guidance provides an example of how public entities should implement the DOJ’s

regulation requiring that service animals be permitted in public areas:

For example, in a hospital it usually would be inappropriate to exclude a service

animal from areas such as patient rooms, clinics, cafeterias, or examination

rooms. However, it may be appropriate to exclude a service animal from

operating rooms or burn units where the animal’s presence may compromise a

sterile environment.

Dep’t of Just., Civil Rights Division, ADA Requirements: Service Animals (July 1, 2011),

https://www.ada.gov/service_animals_2010.htm (last updated Feb. 28, 2020). Additionally, this

guidance speaks directly to the DOJ’s view on how a public entity should handle a dog who

spreads allergens:

Allergies and fear of dogs are not valid reasons for denying access or refusing

service to people using service animals. When a person who is allergic to dog

dander and a person who uses a service animal must spend time in the same room

or facility, for example, in a school classroom or at a homeless shelter, they both

should be accommodated by assigning them, if possible, to different locations

within the room or different rooms in the facility.

Id.

Both the applicable regulations and guidance suggest the following course of action for

public entities when admitting service animals: service animals are permitted as a reasonable

accommodation unless they are “out of control,” “not housebroken,” would fundamentally alter

the activities of the public entity, or, if, after conducting an individualized assessment of the

animal, the public entity concludes that the service animal poses a direct threat. And the

appendix to the regulations specifically acknowledges that service animals may be permitted in

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 16

hospitals when restricted to the areas accessible by the general public but may be excluded from

sterile areas. DOJ guidance suggests that allergies should not constitute a reason to exclude an

animal, but that the public entity should seek to separate the service animal from the individual

with allergies, if possible.

To our knowledge, no circuit courts have had occasion to consider how a healthcare

provider should reasonably accommodate a service animal under Title II of the ADA.6 Case law

from other circuits addressing service animals in general supports the parties’ view that the

regulations create a presumption in favor of admittance of service animals. See Berardelli v.

Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 119 (3d Cir. 2018) (considering regulations

under both Title II and Title III of the ADA); see also Matheis v. CSL Plasma, Inc., 936 F.3d

171, 179 (3d Cir. 2019) (finding presumption created by similar regulations under Title III);

Johnson v. Gambrinus Co., 116 F.3d 1052, 1064 (5th Cir. 1997) (same).

b. Whether Pistol Posed a “Direct Threat” to the Health and

Safety of Patients and Staff

On appeal, Plaintiff challenges the district court’s conclusion that Hurley reasonably

determined that Pistol posed a “direct threat” to the health and safety of the employees and

patients in the hospital, and that the hospital conducted a sufficiently individualized inquiry to

make this assessment. To evaluate whether Pistol posed a direct threat, the regulation sets forth

the following factors for an entity to consider: (1) “the nature, duration, and severity of the risk;”

(2) “the probability that the potential injury will actually occur;” and (3) “whether reasonable

modifications of policies, practices, or procedures or the provision of auxiliary aids or services

will mitigate the risk.” 28 C.F.R. § 35.139(b). Hurley could exclude Pistol if he constituted a

legitimate threat to health and safety, but this determination must be “based on actual risks, not

6

The district court and the parties discuss several out-of-circuit district court cases, none of which directly

addresses how a healthcare entity without a blanket policy against service animals should provide a reasonable

accommodation for a student nurse using a service animal, as opposed to a patient. See, e.g., Rose v. Springfield-

Greene Cnty. Health Dep’t, 668 F. Supp. 2d 1206 (W.D. Mo. 2009), aff’d sub nom. Rose v. Cox Health Sys., 377 F.

App’x 573 (8th Cir. 2010); Tamara v. El Camino Hosp., 964 F. Supp. 2d 1077 (N.D. Cal. 2013); Bartell v. Grifols

Shared Servs. NA, Inc., 618 F. Supp. 3d 275, 284 (M.D.N.C. 2022); Pool v. Riverside Health Servs., Inc., No. 94-

1430-PFK, 1995 WL 519129, at *1 (D. Kan. Aug. 25, 1995); Roe v. Providence Health Sys.-Oregon, 655 F. Supp.

2d 1164 (D. Or. 2009).

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 17

on mere speculation, stereotypes, or generalizations about individuals with disabilities.” Id.

§ 35.130(h).

It is undisputed that Pistol caused two allergic reactions on his first day in the hospital,

establishing that Pistol created an actual risk of future allergic reactions in staff members and

patients who were allergic to dogs. The serious allergic reaction of the unit clerk, Neal, shows

that, in some individuals, this risk could be severe. Moreover, without separating allergic

patients and staff from Pistol during Plaintiff’s time in the hospital, these allergic reactions were

likely to recur. The central question is whether, as a matter of law, Hurley reasonably concluded

that the modifications necessary to ameliorate this risk were unreasonable. We believe that it

did.

Plaintiff suggests that the hospital could have taken reasonable steps to separate Pistol

from allergic patients and staff. First, she contends that Hurley could have moved her to floor

9E, away from the individuals who had allergies on 7E. But this solution would have been

unreasonable for two reasons. As a Hurley staff member stated, although both floors 7E and 9E

housed the “fundamentals of nursing” rotation, 9E did not have a UM-Flint faculty member to

supervise Plaintiff. Accordingly, Plaintiff needed to conduct her rotation on 7E.

More importantly, Jenkins testified that Plaintiff could not have moved to 9E because an

individual on that floor had allergies as well, meaning that this change would not have mitigated

the risk posed by Pistol. On appeal, Plaintiff attempts to dispute that another individual had

allergies on 9E because “Jenkins provided no name or details, and no one else mentioned this

alleged person on 9.” Appellant Br., ECF No. 22, 25 (emphasis in original). Plaintiff supports

this purported dispute only with conjecture and cites no record evidence that creates a genuine

dispute of material fact. She indicates that 7E’s nurse manager “had no information about an

allergy on 9,” and that, because Jenkins worked in administration, and the manager worked in the

medical units, the manager would have more information as to who had allergies in the building.

Id. However, the 7E manager’s statement that she was “not sure” whether there were allergies

on 9E does not create a genuine dispute of material fact on this issue, especially because it is

highly likely that a manager of floor 7E would not have known the specific allergen issues of

staff or patients on an entirely different floor. Martin Depo., R. 16-16, Page ID #617. Plaintiff

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 18

also indicates that Defendant’s brief in support of its motion for summary judgment only

referenced allergies on 7E, rather than 9E. The fact that Defendant’s counsel did not specifically

describe the allergies referenced on 9E in its brief does not itself contradict the express record

evidence that Jenkins believed there to be dog allergies on 9E. Because moving Plaintiff to 9E

would not have mitigated Pistol’s potential risk of causing an allergic reaction, it would not have

constituted a reasonable, or even feasible, accommodation.

Plaintiff also suggests that Hurley could have relocated allergic patients so that they

would not come into contact with Pistol. Crucially, Hurley presented evidence that, in the fall of

2020, it did not screen patients for dog allergies. Without requiring it to implement an entirely

new allergy screening policy, Hurley would not know which patients would be at risk for an

allergic reaction to Pistol. Moreover, the record indicates that Pistol caused an allergic reaction

in a patient just from his presence on the floor, meaning that any patient placed on floor 7E with

an unknown allergy to dogs could be at risk.

Even if the hospital could determine who had a dog allergy, Hurley presented evidence

that moving patients to different floors could be burdensome. The hospital was “packed” during

the COVID-19 pandemic, and patients would have needed to be moved to a floor that had staff

and services available to treat their specific medical needs. Martin Depo., R. 14-4, Page ID

#248. Plaintiff did not present any evidence that contradicted the difficulty Hurley would have

moving allergic patients, even if the hospital could identify them, and, thus, the proposed

accommodation of moving allergic patients away from Pistol was unreasonable.

Finally, Plaintiff suggests that Hurley could have moved allergic staff away from Pistol.

Hurley presented evidence that it was difficult to move staff in the fall of 2020 because of

staffing shortages related to the COVID-19 pandemic, and that moving nurses specifically is

difficult because staff changes must go through the nurses’ bargaining unit. Moreover, Hurley

also presented evidence that staff members who provide specific services are needed on certain

floors in the hospital because they provide unique care to patients on those floors. Specific to

floor 7E, certain nurses play a role in a specialized form of kidney dialysis. Plaintiff correctly

identifies that Hurley did reassign Hippolyte, the nurse who had dog allergies but was not at the

hospital on September 9. But merely because the hospital was able to move one nurse does not

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 19

create a genuine dispute of fact as to whether it would have been reasonable to ask it to move

all nurses who may be allergic and assigned to 7E. Hurley presented evidence of the

difficulties it would face moving staff in a crowded hospital experiencing staff shortages from

the COVID-19 pandemic, particularly from a floor providing specialized care to patients.

Accordingly, requiring it to move staff to another floor under these circumstances would be

unreasonable.

In sum, the district court properly concluded that Hurley reasonably decided that Pistol

posed a direct threat to the health and safety of patients, and that the accommodations necessary

to mitigate the risk of his allergens were not reasonable. Hurley did not exclude Pistol pursuant

to a blanket policy; indeed, it initially permitted him to accompany Plaintiff on her rotations.

However, once he caused two allergic reactions on just his first day, the hospital reasonably

determined that it could not sufficiently protect allergic patients or staff members from the threat

he posed. It specifically assessed whether, based on this actual risk, it would be able to move

allergic patients or staff members away from the dog. Without knowing which patients are

allergic to dogs and considering the significant concerns implicated by shifting patients and staff

away from floors in the hospital, as well as the overcrowding of the hospital during this specific

period due to the COVID-19 pandemic, Hurley did not fail to provide Plaintiff with a reasonable

accommodation.

c. Whether Hurley Failed to Engage in the Interactive Process

In the employment context, this Court has found that the regulations implementing Title I

of the ADA require employers and employees to engage in an “interactive process.” Kleiber v.

Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007) (citing 29 C.F.R. § 1630.2(o)(3)).

This process requires the employer “to initiate an informal, interactive process,” in order to

“identify the precise limitations resulting from the disability and potential reasonable

accommodations that could overcome those limitations.” Id. This Court has held this process,

only described in the regulations implementing Title I of the ADA, is “mandatory” and requires

both parties to “participate in good faith.” Id. (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105,

1114 (9th Cir. 2000) (en banc), judgment vacated on other grounds, 535 U.S. 391 (2002)). We

have not held that the same interactive process requirement applies to Title II of the ADA but

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 20

have suggested in unpublished opinions that it could when, as here, the relationship between the

individual and the public entity is similar to that of an employer and employee. See Marble v.

Tennessee, 767 F. App’x 647, 653 (6th Cir. 2019) (citing McElwee v. Cnty. of Orange, 700 F.3d

635, 640 n.2 (2d Cir. 2012)); see also Mbawe v. Ferris State Univ., 751 F. App’x 832, 840 (6th

Cir. 2018). We need not decide whether Title II requires individuals to participate in an

interactive process in this situation because, even if it does, Hurley did not violate this

requirement in this case.

To establish that Defendant’s failure to engage in the interactive process violated the

ADA, Plaintiff “must show that a reasonable accommodation was possible” and could have been

identified had Defendant engaged in the interactive process. Keith v. Cnty. of Oakland, 703 F.3d

918, 929 (6th Cir. 2013) (citing Breitfelder v. Leis, 151 F. App’x 379, 386 (6th Cir. 2005)); see

also Rorrer v. City of Stow, 743 F.3d 1025, 1041 (6th Cir. 2014). As the Seventh Circuit has

recognized, this is because the interactive process requirement “is a means for identifying a

reasonable accommodation rather than an end in itself.” Sansone v. Brennan, 917 F.3d 975, 980

(7th Cir. 2019) (citing Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997)).

In this case, Plaintiff has not identified a reasonable accommodation that would have been

possible. Pistol posed a direct threat to the health and safety of staff and patients, and requiring

the hospital to move allergic staff and patients to accommodate Pistol would not be reasonable.

Moreover, by Plaintiff’s own admission to Jenkins, putting Pistol in a Shed Defender was not

possible at the time of her rotation because the product was not offered in Pistol’s size, and she

had not procured an altered garment.

To the extent that the hospital’s offer to crate Pistol on a separate floor could constitute a

possible reasonable accommodation, this certainly precludes Plaintiff’s claim that Hurley failed

to participate in the interactive process in good faith. As we have held, “taking the extra step of

proposing counter accommodations may be additional evidence of good faith,” and when an

employer “offers a reasonable counter accommodation, the employee cannot demand a different

accommodation.” Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 203 (6th Cir. 2010) (citation

omitted). Moreover, the record evidence shows that the failure to identify a possible reasonable

accommodation did not result from Hurley’s bad faith or obstruction of the interactive process.

No. 23-1162 Bennett v. Hurley Med. Ctr. Page 21

To the contrary, Hurley repeatedly engaged with Plaintiff’s suggested accommodations,

consulted with medical experts to determine whether they would be feasible, and communicated

to Plaintiff its concerns with Pistol’s continued presence on floor 7E. Accordingly, assuming

that the interactive process requirement applies to Hurley in this case, it did not fail to comply

with it.

CONCLUSION

For the reasons stated above, the district court’s grant of summary judgment to Defendant

Hurley Medical Center is AFFIRMED.