     Case: 14-41349      Document: 00513173895         Page: 1    Date Filed: 08/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-41349                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ROLANDO PEREZ; MIRIAM PEREZ,                                              August 28, 2015
                                                                           Lyle W. Cayce
              Plaintiffs - Appellants                                           Clerk

v.

DOCTORS HOSPITAL AT RENAISSANCE, LIMITED,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:13-CV-124


Before WIENER, CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiffs Rolando and Miriam Perez brought claims against defendant
Doctors Hospital at Renaissance, Limited, pursuant to Title III of the
Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and
Chapter 121 of the Texas Human Resources Code. The district court granted
summary judgment to DHR on all claims. We REVERSE the judgment and
REMAND for further proceedings.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-41349     Document: 00513173895    Page: 2   Date Filed: 08/28/2015



                                 No. 14-41349
               FACTUAL AND PROCEDURAL BACKGROUND
        On January 16, 2011, the plaintiffs took their four-month-old daughter
to the emergency room at Doctors Hospital at Renaissance (“DHR”), located in
Edinburg, Texas. Their daughter was diagnosed with a brain tumor that
required monthly treatment at DHR.         Mrs. Perez is completely deaf and
communicates exclusively in American Sign Language (“ASL”). Her ability to
read and write is limited. Mr. Perez is completely deaf in his right ear and
cannot hear well in his left ear. His primary language is ASL and he reads
and writes in English only with difficulty. DHR has known the plaintiffs
required auxiliary services during their hospital visits since at least January
2011.
        The plaintiffs allege that throughout 2011 and part of 2012, DHR
repeatedly failed to provide them an interpreter. On the occasions DHR did
provide them an interpreter, the plaintiffs allege they would sometimes have
to wait “upwards of a full day” for the interpreter to arrive. The plaintiffs’
daughter’s first round of chemotherapy ended in January 2013. The plaintiffs
do not allege that there were any problems with DHR’s provision of auxiliary
services for the time period of 2013 through early 2014. In April 2014, the
plaintiffs’ daughter was diagnosed a second time with cancer and ordered to
undergo chemotherapy over an 80-week period. The plaintiffs allege that after
this second diagnosis they again experienced problems with DHR’s auxiliary
services.    They allege that an interpreter was not always provided.
Furthermore, the video remote imaging (“VRI”) machines, which DHR began
to offer to the plaintiffs in late 2013, did not always function properly. They
also allege that DHR’s medical staff was, at times, unable to operate the
machines and that some nurses did not understand or know about VRI.
        The plaintiffs filed suit against DHR in March 2013. In June 2014, DHR


                                       2
     Case: 14-41349   Document: 00513173895      Page: 3   Date Filed: 08/28/2015



                                  No. 14-41349
moved for partial summary judgment on the plaintiffs’ federal claims. In July,
the district court held a hearing on the motion and granted summary judgment
to DHR on the plaintiffs’ Americans with Disabilities Act (“ADA”) and
Rehabilitation Act (“RA”) claims.     In August, DHR moved for summary
judgment on the plaintiffs’ state-law claims, which the district court granted.
The plaintiffs timely appealed.


                                  DISCUSSION
      “We review a district court’s ruling on a motion for summary judgment
de novo and apply the same legal standards as the district court.” Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). Summary judgment is proper
when the “movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a).


I.    Title III of the Americans with Disabilities Act
       Title III of the ADA provides: “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 . . . or operates a place of public
accommodation.” 42 U.S.C. § 12182(a). A hospital is a public accommodation
under Title III of the ADA. See id. § 12181(7)(F). Damages are not available
for a Title III ADA claim brought by a private party, but a private party may
seek injunctive relief. See id. § 12188(a); Plumley v. Landmark Chevrolet, Inc.,
122 F.3d 308, 312 (5th Cir. 1997).
      Standing to seek injunctive relief requires plaintiffs to show that they
suffer or will suffer an injury-in-fact, and therefore would benefit from the


                                       3
    Case: 14-41349     Document: 00513173895     Page: 4   Date Filed: 08/28/2015



                                  No. 14-41349
court’s granting of such equitable relief. Id. Plaintiffs must demonstrate that
they face a palpable present or future harm, not harm that is “conjectural or
hypothetical.” Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 n.23 (5th
Cir. 1998) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).
Allegations of “past wrongs” alone do not “amount to that real and immediate
threat of injury necessary to make out a case or controversy.” Id. at 563
(quoting Lyons, 461 U.S. at 103) (alteration omitted). Past wrongs can be
considered, however, as evidence of an actual threat of repeated injury.
Henschen v. City of Houston, 959 F.2d 584, 588 (5th Cir. 1992) (citing O’Shea
v. Littleton, 414 U.S. 488, 496 (1974)).
      At the summary judgment hearing on the plaintiffs’ ADA claim, the
district court found that “Mr. Perez had no complaint about the
accommodations that were being made to [him] and his family by the Hospital
after December of 2011.” Therefore, the court stated, it “seemed to be clear
from the evidence” that there was no “real and immediate threat of future
harm.”   On the same day as the hearing, the court issued a one-page order
granting summary judgment to DHR. The court referred to the reasons it
stated in open court at the motion’s hearing as explanation for its judgment.
In the transcript from the hearing, the district court did not explicitly refer to
standing. It is clear, though, that the court dismissed based on the lack of a
real and immediate threat of future harm. That issue is part of the analysis
for standing. Furthermore, both DHR’s motion for summary judgment and the
plaintiffs’ response focused on standing as to the ADA claim.
      The plaintiffs argue on appeal that there were genuine disputes of
material fact as to whether there is a real threat of future harm. They refer to
“overwhelming evidence of DHR’s repeated and recent failures to provide
effective communication through auxiliary aids or reasonably accommodate


                                           4
    Case: 14-41349    Document: 00513173895     Page: 5   Date Filed: 08/28/2015



                                 No. 14-41349
the Perez family’s hearing disabilities.” Included in the evidence is Mr. Perez’s
affidavit. He swore that during his family’s visits to DHR in the three-month
period prior to the court’s summary judgment ruling, they encountered: (1)
VRI machines that did not always work properly; (2) a nurse who did not know
how to use the VRI machine; and (3) two nurses who “did not know what ‘VRI’
was.” Mr. Perez also stated that he always “prefer[s] an in-person interpreter,
but DHR does not always have one available, even after we have requested it.”
      Also introduced were Mr. Perez’s handwritten notes describing the
family’s visits to DHR. The notes indicate that an interpreter was requested
and not provided as late as April 2012.       Moreover, Norma Teran, DHR’s
executive vice president for nursing, testified in her June 2014 deposition that
DHR’s ADA compliance policy for the hearing impaired was in need of revision.
Teran also testified that she was unable to find any training sessions that had
taken place at DHR related to addressing the needs of the hearing impaired.
      DHR acknowledges that Mr. Perez asserts in his affidavit that the
plaintiffs have recently experienced problems. DHR contends, though, that
Mr. Perez does not state that DHR refused to provide a VRI machine or
interpreter when requested, that DHR was unable to get the VRI machine to
work on any occasion, or that the nurse unfamiliar with how to use the VRI
machine did not ultimately figure out how to use it or enlist the aid of someone
familiar with the machine. DHR argues that “in light of the Perezes visiting
DHR numerous times in the last three years without incident, the Perezes’
minor VRI complications are insufficient to create an inference that they face
a substantial risk of future harm.”
      In analyzing the propriety of summary judgment, “we consider all the
facts contained in the summary judgment record and the inferences to be
drawn therefrom in the light most favorable to the non-moving party.” Duarte


                                       5
      Case: 14-41349      Document: 00513173895         Page: 6     Date Filed: 08/28/2015



                                       No. 14-41349
v. City of Lewisville, 759 F.3d 514, 517 (5th Cir. 2014) (citation and internal
quotation marks omitted). We conclude that the district court erred in holding
there was no genuine dispute of material fact as to whether the plaintiffs faced
a real and immediate threat of future harm. Mr. Perez’s affidavit is evidence
that the plaintiffs have experienced recent problems with DHR’s provision of
auxiliary services. Furthermore, the evidence of DHR’s failure to revise its
ADA compliance policy, which it admits needs revision, and its lack of training
on addressing the needs of the hearing impaired, creates a possible inference
that the plaintiffs’ problems with the provision of auxiliary services will
continue in the future.
       Because we conclude there is a genuine dispute of material fact on the
question whether the plaintiffs have standing to bring their ADA claim, we
reverse the district court’s grant of summary judgment on that claim. 1


II.    Section 504 of the Rehabilitation Act
       The RA protects the disabled who seek to participate in a program or
activity receiving federal funds from discrimination: no otherwise qualified
individual “shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” 29
U.S.C. § 794(a). To receive compensatory damages under the RA, a plaintiff
must offer proof of intentional discrimination. Delano-Pyle v. Victoria County,
302 F.3d 567, 574 (5th Cir. 2002).


       1 The plaintiffs also appear to argue that the district court should have addressed the
merits of their ADA claim. In their response to DHR’s motion for partial summary judgment,
the plaintiffs’ only argument on the ADA claim was that they had standing to bring the claim
because there was a real and immediate threat of future harm. They did not raise any
argument as to the merits of their ADA claim. They may not raise that issue now. See Brazos
Valley Coal. for Life, Inc. v. City of Bryan, 421 F.3d 314, 321 n.7 (5th Cir. 2005).

                                              6
    Case: 14-41349    Document: 00513173895     Page: 7   Date Filed: 08/28/2015



                                 No. 14-41349
      We did not define what we meant by intent in Delano-Pyle. Some circuits
have held that deliberate indifference suffices. See Liese v. Indian River Cty.
Hosp. Dist., 701 F.3d 334, 345 (11th Cir. 2012). The parties have not briefed
the issue in any depth, and we decline to make new law on the nature of intent
at this time. We conclude that on the present record, there is enough to show
a dispute of material fact on whether DHR intentionally, i.e. purposefully,
discriminated. Intent is usually shown only by inferences. See Crawford v.
Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000). Inferences are
for a fact-finder and we are not that. See id. Still, we conclude that actual
intent could be inferred from the evidence before us.
      At the summary judgment hearing, the district court stated that there
was no evidence of intentional discrimination. The court held the DHR “did
whatever [it] could to provide effective communication.” The plaintiffs argue
that the district court failed to view the facts in the light most favorable to
them as the non-movants. They rely on Mr. Perez’s handwritten notes on his
daughter’s medical records that document at least 18 dates on which an
interpreter was not provided. Also, in Mr. Perez’s deposition, he testified that
when he asked one nurse for an interpreter, she told him one would be provided
“[o]nly when the doctor shows up or if there’s any questions you need help or
concerns, then you can ask.” Mrs. Perez also testified in her deposition that
when she requested an interpreter, sometimes the “nurses would say no. They
would say that the boss said no.” Furthermore, Teran testified that DHR’s
policies as to the hearing impaired were “certainly” in need of revision, and had
not been revised since May 2012, and that DHR did not provide any training
on addressing the needs of the hearing impaired.
      Our review of the evidence is through the summary judgment lens. “The
evidence of the non-movant is to be believed, and all justifiable inferences are


                                       7
    Case: 14-41349    Document: 00513173895     Page: 8   Date Filed: 08/28/2015



                                 No. 14-41349
to be drawn in his favor.” Coastal Agric. Supply, Inc. v. JP Morgan Chase
Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)) (internal quotation marks omitted). In
examining the evidence, we are guided by a case in which a plaintiff driver,
who was severely hearing impaired, was involved in a car accident.           See
Delano-Pyle, 302 F.3d at 570.      When a police officer arrived, the driver
informed him of his hearing disability. Id. The officer nonetheless performed
several sobriety tests on the driver without asking which form of
communication would be effective. Id. The driver sued for violations of the
ADA, the RA, and Chapter 121 of the Texas Human Resources Code. Id. at
571. A jury found the county liable, and the county appealed. Id. On appeal,
on plain error review, we held that “[t]he facts addressed at trial support the
jury’s finding of intentional discrimination.” Id. at 573, 575. We deemed it
important that “no matter how many times [the officer] repeated himself and
no matter how loudly he spoke, [the driver] could not understand most of what
he was saying,” yet the officer did not “try[] a more effective form of
communication.” Id. at 575.
      We acknowledge the alleged RA violation here and in Delano-Pyle
occurred in different contexts. Still, the evidence in each case could be seen as
suggesting that the defendant’s agents ignored clear indications that they were
dealing with a hearing-impaired person with special communication needs.
      The summary judgment evidence is sufficient to create a genuine dispute
as to whether DHR intentionally discriminated against the plaintiffs. There
is evidence indicating that on several occasions, an interpreter was requested
but not provided. There is also evidence indicating that one of the forms of
communication that DHR was utilizing, the VRI machines, was often
ineffective. In Delano-Pyle, the plaintiff did not show he ever requested an


                                       8
       Case: 14-41349   Document: 00513173895    Page: 9   Date Filed: 08/28/2015



                                  No. 14-41349
interpreter or auxiliary aid, yet we concluded that the failure to provide an
effective form of communication was evidence of intentional discrimination.
Here, some evidence indicates that the plaintiffs made repeated requests for
auxiliary aids, yet DHR failed on several occasions to provide effective aids and
in some instances refused to provide an interpreter after one had been
requested.
        We conclude that, even without applying a deliberate indifference
standard, there is a genuine dispute of material fact as to whether DHR
intentionally discriminated against the plaintiffs. Accordingly, the district
court’s dismissal of the plaintiffs’ RA claim was error. On remand, the district
court may, if necessary to resolve the case, make the initial effort to define
intent under this statutory scheme.


III.    Chapter 121 of the Texas Human Resources Code
        The district court granted DHR’s second motion for summary judgment
after noting in its order that the parties did not dispute that Chapter 121 is
analogous to the RA. The court found there was no “genuine issue of material
fact on whether the steps taken by DHR to provide auxiliary aids and services
to Plaintiffs demonstrate an intent to discriminate against Plaintiffs because
of their disability.” Because we hold that the plaintiffs have demonstrated that
a factual dispute exists on the question of intentional discrimination, we
reverse the district court’s grant of summary judgment to DHR on the
plaintiffs’ Chapter 121 claims.


IV.     Declaratory Relief
        The plaintiffs argue that it was error for the district court to dismiss
their claims because they specifically requested declaratory relief in their


                                        9
   Case: 14-41349    Document: 00513173895      Page: 10   Date Filed: 08/28/2015



                                 No. 14-41349
complaint. DHR responds that the plaintiffs only requested declaratory relief
on their ADA claim, and that declaratory relief is not available when there is
no risk of future harm.     The district court did not address the issue of
declaratory relief in either of its summary judgment orders or at the summary
judgment hearing. We leave the question of declaratory relief for the district
court to consider in the first instance on remand.
                                     ***
      We REVERSE the district court’s dismissal of the plaintiffs’ claims and
REMAND for further proceedings consistent with this opinion.




                                      10
