                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                         FILED
                                                                     U.S. COURT OF APPEALS
                                ______________________                ELEVENTH CIRCUIT
                                                                          JUNE 15, 2007
                                                                        THOMAS K. KAHN
                                     No. 06-12734                           CLERK
                                ______________________

                          D.C. Docket No. 03-62133-CV-ASG

ANDREW SALTZMAN,
VICKI SALTZMAN,
                                                                   Plaintiffs-Appellants,

                                            versus

BOARD OF COMMISSIONERS OF THE NORTH BROWARD HOSPITAL
DISTRICT, d.b.a. Rehabilitation Services, d.b.a North Broward Medical Center,
HOSPITAL CORPORATION OF AMERICA, d.b.a. Northwest Medical Center,
NORTHWEST MEDICAL CENTER, INC.,
                                                        Defendants-Appellees.
                          ______________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                              ______________________

                                       (June 15, 2007)

Before BIRCH and FAY, Circuit Judges, and DUFFEY,* District Judge.

PER CURIAM
___________________________
       *Honorable William S. Duffey, Jr., United States District Judge for the Northern District
of Georgia, sitting by designation.
      At issue before the Court is whether the district court erred when it granted

summary judgment in favor of the Appellee Northwest Medical Center, Inc.

(“Northwest”). We conclude that no reasonable jury could find that Northwest’s

treatment of Appellant Andrew Saltzman (“Mr. Saltzman”) or his wife (“Mrs.

Saltzman”, collectively, “the Saltzmans”) constituted intentional discrimination

under the Rehabilitation Act. The district court correctly granted summary

judgment in Northwest’s favor on the Rehabilitation Act claims. Accordingly, we

affirm.

                               I. BACKGROUND

      This case arises from Mr. Saltzman’s stay at a facility owned by Northwest

in February of 2002. Mr. Saltzman and his wife are deaf. On February 9, 2002,

Mr. Saltzman experienced chest pain, dizziness, and shortness of breath.

Mr. Saltzman was taken by ambulance to Northwest, which diagnosed him as

having suffered a stroke. Mr. Saltzman remained at Northwest for four days.

After he was stabilized, he was transferred to North Broward Medical Center for

therapy and rehabilitation.

      Mr. Saltzman and his wife communicate primarily through American Sign

Language. They can read and write simple words in English, but their typical

written communication consists of word strings without grammatical or syntactical

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structure. The Saltzmans have two adult children, Robbie and Sheri. Robbie and

Sheri have normal hearing and can communicate in American Sign Language,

although Sheri is more proficient. Prior to the events at issue in this case Sheri

often accompanied Mr. Saltzman to doctors’ appointments to translate for him, but

she professes not to be able to convey medical terminology through sign language.

      On February 10, 2002, Mrs. Saltzman used a TTY machine to call 911

emergency services regarding Mr. Saltzman’s symptoms. When the ambulance

arrived, Mrs. Saltzman wrote Mr. Saltzman’s name, general medical history,

medications, contact information, and symptoms on a piece of paper.

Mrs. Saltzman also wrote that they were deaf, that they needed an interpreter, and

requested that one be available at the hospital.

      At the time of Mr. Saltzman’s arrival, Northwest had a policy for

accommodating disabled patients. The policy contained specific provisions for

treating hearing-impaired patients like the Saltzmans, including listing contact

information for two organizations to provide sign language interpreting services.

The policy also provided that Northwest have TTY phones for the hearing

impaired. Northwest also is a stroke specialty center. As such, its employees have

training and experience in communicating with patients suffering stroke-related

hearing or speech impediments. Northwest’s staff often engage in non-verbal

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communication with disabled stroke patients using gestures, writing,

fingerspelling, or other aides.

      After Mr. Saltzman arrived at Northwest, staff treated him immediately and

performed diagnostic work including a CT scan, EKG, and MRI. Northwest

physicians diagnosed Mr. Saltzman as having suffered a stroke and admitted him

for monitoring. Although the Saltzmans claim that Northwest’s staff had some

difficulty communicating with Mr. Saltzman, and particularly communicating to

him the nature of his condition, the Saltzmans do not complain about the medical

treatment Mr. Saltzman received.

      No sign language interpreter was available the day the Saltzmans arrived at

Northwest. On February 12, two days after Mr. Saltzman’s admission, his

daughter Sheri arrived. Sheri requested a sign language interpreter. From the time

of her arrival until Mr. Saltzman’s discharge on February 15, Sheri requested an

interpreter every day and once gave a Northwest staff member a business card

with an interpreter’s name and phone number. Sheri assisted in translating for her

parents as she was able.

      Northwest staff informed the Saltzmans that they would try to locate an

interpreter. A notation in Mr. Saltzman’s medical records shows that Northwest

staff called the League for the Hard of Hearing, one of the two organizations listed

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in Northwest’s accommodation policy. Northwest employees were unable to

coordinate the unpredictable schedule of Mr. Saltzman’s treating physician with

the interpreter’s schedule. Northwest’s staff apparently did not attempt to contact

the other listed agency, nor did they make further attempts to work with the

League for the Hard of Hearing. It is undisputed that Northwest did not provide

an interpreter during Mr. Saltzman’s stay.

      After four days of care, Mr. Saltzman was released to North Broward

Medical Center for therapy and rehabilitation. Although Northwest did not

provide a sign language interpreter, staff members communicated to Mr. Saltzman

and his wife, using fingerspelling, writing, and hand signals, that Mr. Saltzman

had suffered a stroke, but that he was going to be “okay.” The Saltzmans were

unable to comprehend fully the meaning of the written term “stroke,” and their

claim is based on the isolation and fear Mr. Saltzman experienced due to the

claimed ineffectiveness of their attempts to communicate.

                           II. PRIOR PROCEEDINGS

      On November 26, 2003, the Saltzmans filed the present suit against

Northwest and North Broward Medical Center, alleging violations of Title III of

the Americans with Disabilities Act (“ADA”), § 504 of the Rehabilitation Act,

intentional infliction of emotional distress, and violations of Florida statutory law.

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The district court dismissed the ADA and state statutory counts, leaving only the

Rehabilitation Act and intentional infliction of emotional distress claims.

Northwest filed a motion for summary judgment on those counts, which the

district court granted. The Saltzmans appealed the district court’s grant of

summary judgment in Northwest’s favor on the Rehabilitation Act claim.

                                 III. DISCUSSION

      A. Standard of Review

      “We review de novo the district court’s grant of summary judgment . . . ,

applying the same familiar standards as the district court.” Patrick v. Floyd Med.

Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000) (citation omitted). “Summary

judgment is appropriate if the record shows no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law.” Gitlitz v.

Compagnie Nationale Air France, 129 F.3d 554, 556 (11th Cir.1997) (per curiam)

(citation omitted). “Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no genuine issue for trial.”

Scott v. Harris, 127 S. Ct 1769, 1776 (2007) (quotations omitted).




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      B. Rehabilitation Act Claim

      The issue in this appeal is whether Northwest’s failure to provide a sign

language interpreter constitutes discrimination under § 504 of the Rehabilitation

Act, 29 U.S.C. § 794, entitling the Saltzmans to compensatory damages.

      Federal regulations enacted pursuant to the Rehabilitation Act require the

provision of “appropriate auxiliary aids to persons with impaired sensory, manual,

or speaking skills, where necessary to afford such persons an equal opportunity to

benefit from the service in question.” 45 C.F.R. § 84.52(d)(1). Auxiliary aids are

“appropriate” if they ensure “effective communication with individuals with

disabilities.” 28 C.F.R. § 36.303(c). The term “auxiliary aids” is not confined to

interpreters, but also includes:

              notetakers, computer-aided transcription services,
              written materials, telephone handset amplifiers, assistive
              listening devices, assistive listening systems, telephones
              compatible with hearing aids, closed caption decoders,
              open and closed captioning, telecommunications devices
              for deaf persons (TDD's), videotext displays, or other
              effective methods of making aurally delivered materials
              available to individuals with hearing impairments.
Id. at § 36.303(b)(1).

      In this Circuit, compensatory damages are recoverable for Rehabilitation

Act claims only upon a showing of intentional discrimination. Wood v. President

& Trs. of Spring Hill College, 978 F.2d 1214, 1219 (11th Cir. 1992). We have not

                                          7
determined whether “intentional discrimination” should be evaluated under the

“deliberate indifference” standard, or under a more stringent standard, such as

“discriminatory animus.” Bircoll v. Miami-Dade County, 480 F.3d 1072, 1080-81

(11th Cir. 2007). The district court decided this issue under the deliberate

indifference standard, the parties briefed the issue on appeal under that standard,

and this Court uses the same standard. Because the Saltzmans cannot show

intentional discrimination as a matter of law under the lenient deliberate

indifference standard, summary judgment in Northwest’s favor is appropriate

regardless of whether a more stringent standard should apply.1

       Deliberate indifference requires knowledge that a federally protected right is

likely to be harmed and a failure to act upon that likelihood. See City of Canton,

Ohio v. Harris, 489 U.S. 378, 388-89 (1989). Negligence, even if gross, cannot

constitute deliberate indifference. See Bozeman v. Orum, 422 F.3d 1265, 1272

(11th Cir. 2005). For conduct to be deliberately indifferent, there must be both

knowledge of likely harm and failure to act on the part of a policymaker, that is,

someone capable of making an “official decision” on behalf of the organization.

Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290-91 (1998).


       1
          Our holding does not require us to determine a specific standard for determining
intentional discrimination under the Rehabilitation Act, and we decline to do so. We leave
determination of that issue for another day.

                                               8
       Construing the facts in the light most favorable to the Saltzmans, no

reasonable juror could find that Northwest’s conduct constituted intentional

discrimination. Northwest had a policy in place for assisting hearing-impaired

patients, including provision of TTY phones and a list of interpreting services to

call. There is no evidence that any Northwest policymaker intended or expected

hearing impaired people would be discriminated against in their hospital. There

also is no evidence that any policymaker expected any member of the hospital

staff would not follow the hospital’s disability policy. The facts are that pursuant

to its policy, Northwest employees attempted to locate an interpreter for the

Saltzmans. Although that attempt may have been negligently made, negligence is

not intentional discrimination. There is no indication that Northwest’s hearing-

impaired accommodation policy was inadequate, or that Northwest had a practice

of not following the written policy2 it had enacted.

       Northwest, as a specialty stroke center, also had in place a variety of other

auxiliary aids for nonverbal communication, in which the staff were trained and


       2
          The Saltzmans allege that official knowledge of the inadequacy of Northwest’s
accommodation policy and practice is demonstrated by the comprehensive policy it agreed to
implement as part of a settlement in the case Access Now, Inc. v. Ambulatory Surgery Center
Group, Ltd., et. al., Case No. 99-109-CIV-Seitz/Garber (S.D. Fla.). The record shows, however,
that Northwest did not enter into the settlement requiring a new policy until nearly six months
after the Saltzmans’ visit. Whatever knowledge can be implied from the fact of the settlement
does not apply to the time frame of Mr. Saltzman’s visit.

                                               9
experienced. Northwest staff used fingerspelling, hand gestures, written

communication, and other means to communicate with the Saltzmans. While these

communications may not have been as effective as the Saltzmans would have

preferred, the fact that Northwest’s staff would offer such a broad range of

auxiliary aids, while seeking the services of a qualified interpreter, support the

record’s clear showing that Northwest did not intend to discriminate against the

Saltzmans or any other hearing impaired person because of their disability, and

there is no evidence that Northwest officials believed there was a likelihood of

such discrimination. To the contrary, the undisputed facts show that Northwest

took seriously its duty to accommodate hearing-impaired patients, even if in this

particular instance its efforts to find an interpreter came up short.

                                IV. CONCLUSION

      For the reasons stated above, the Court finds that the district court correctly

decided the Motion for Summary Judgment and the District Court’s decision is

AFFIRMED.




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