Contempt and Enforcement of ADA Injunctions

This case has some lessons for plaintiffs and defendants on what constitutes contempt, how to keep out of court after an ADA settlement, and on how courts respond to violations of orders. (Anyone interested in the details of medical hospital construction and ADA corrective actions will want to read the entire opinion).

What are those lessons?

• Take all decree-imposed obligations very seriously. They are likely to be enforced.
• Good communication should be a high priority. Defendants must keep plaintiffs informed of any delays or unforeseen difficulties. Frequent status reports are very helpful.
• Even in the midst of compliance disputes, defendants benefit from moving forward to the extent possible to fulfill the decree’s mandates.
• Vigorous and rigorous judicial oversight of compliance activities greatly facilitiates enforcement.

These lessons are consistent with my experience as a federal court special master and court-appointed monitor in complex litigation.

In 2003, John Mannick sued the Kaiser Oakland Hospital under the ADA and local law claming that his rights had been violated during a stay at the hospital. A 2005 Consent Decree settled the case and required the creation of: 1) accessible parking and paths of travel from the parking to the hospital; 2) an accessible patient discharge area; 3) an accessible entrance; 4) accessible patient rooms and roll-in showers/restrooms; and 5) enactment and implementation of new policies and procedures regarding patient admittance and employee training. The Consent Decree set deadlines and established details regarding these requirements.

In a Contempt Motion, Plaintiff urged that Defendants should be found in civil contempt because they failed to meet the deadlines in the Consent Decree for corrective work, did not make all reasonable efforts to comply, and failed to give notice – as required under the Decree – that they were experiencing “unforeseen difficulties” in compliance. Defendants were overdue months with regard to a number of obligations.

The hospital conceded that it did not meet the deadlines established in the Consent Decree, and, also, that they did not give the required thirty day notice with respect to unforeseen delays. However, the hospital urged that it not be held in contempt because it substantially complied with the Consent Decree and any failures to complete the corrective work on time or give notice of delays were “very minor technical violations” or inadvertent.

By the time the court held a hearing, a number of violations had been corrected and Plaintiff agreed that contempt sanctions were not appropriate for now-remedied items. Several continuing violations were still “in play,” so to speak.

The court concluded that “while Defendants have acted in good faith, they have not taken all reasonable steps to comply with the Consent Decree and therefore should be found in civil contempt.” As to various requirements, the court found that the hospital failed to explain delays, failed to expedite the design process, could have anticipated certain issues, unilaterally chose to “totally” alter one of the plans. The hospital’s failure (when former outside counsel represented it) to give plaintiff notice of delays and problems was a separate ground for contempt.

The hospital “repeatedly failed to comply with the time line required under the Decree. They failed also to notify Plaintiff at all, during this period, of the delay or the causes for the delay.” (emphasis in original).

What is the remedy for contempt? The court declined to impose monetary sanctions. In perhaps the most significant language in the decision, the court decided that compliance enforcement against a “large institution” is best effected by “more rigorous court oversight.” As the court put it:

"… a small monetary penalty will be less effective in enforcing compliance by a large institution like Defendants than will be more rigorous court oversight. Therefore, in light of Defendants' history of failing to make reasonable efforts to meet the deadlines set forth in the Consent Decree, the Court recommends that Defendants be required to participate in Compliance Hearings, to be conducted by the undersigned magistrate judge, every four months until all required work is completed. The parties shall submit a joint status report ten (10) days prior to each hearing. At such hearings, the Court could consider and recommend any further remedies that are necessary, depending on the progress of the construction."

Defendants also sought seek a modification of the Decree to eliminate some requirements and to extend certain deadlines. Defendants contended Also, the original construction estimates were off; a sixth floor room budgeted at $400,000 was now budgeted at $611,000. Two other reasons were advanced: a) the hospital is to be torn down in 2013, and b) no disabled person other than the original plaintiff has complained about the lack of accessible facilities. The court rejected all these grounds for modification of the decree. However, the court did permit Defendants to do some of the construction in phases. because the simultaneous construction of some of the accessible hospital rooms would take a large number of beds out of service, thus harming the community served by the hospital.

Mannick v. Kaiser Foundation Health Plan, Inc., 2006 WL 3734390 (Dec. 18, 2006, N.D.Cal.) (district judge adopting report by magistrate judge).

911 Emergency Calls, Local Police and the ADA

Emergency! Call 911! Do local police need to keep the ADA in mind when a sign language interpreter is needed? The answer may be yes, at least when no public disturbance is occurring and in a non-criminal context.

Maria Salinas sued the City of New Braunfels, Texas, for unlawful discrimination based on her hearing disability. She is deaf and uses American Sign Language (ASL) to communicate.

Ms. Salinas returned home to her apartment from work and found her boyfriend motionless on her couch. Unable to rouse him, she and a neighbor called 911 for emergency help and to request an ASL interpreter. The police did not attempt to locate an interpreter either when she called 911 or after they arrived on the scene. Ms. Salinas became increasingly distraught as she was left out of the communications around her. Even after an interpreter arrived in response to Ms. Salinas’ own efforts, the police did not at first give Ms. Salinas access to the interpreter.

Ms. Salinas sued under Section 504 of the Rehabilitation Act and the ADA. The city asked the court to dismiss the case, arguing that an interpreter eventually did arrive, but, in any event, the claim should be dismissed because it arises in the context of law enforcement activity, because police response to a 911 call does not fall in the category of “services, programs or activities of a public entity” of Title II of the ADA. How can police protect the public and be subjected day-to-day to the ADA’s mandates?

Denying the motion to dismiss, the court noted that the “services, programs, or activities” language in the ADA and the Rehabilitation Act are propertly interpreted to encompass “anything a public entity does.” Police departments are covered. While prior case law found that an on-the-street police response to a disturbance involving a disabled suspect is not within the ADA’s ambit (due to the risk in such potentially life-threatening situations), that approach does not apply here where there was no threat, the scene was secure and Ms. Salinas was not a suspect.

Therefore, a city’s 911 emergency response service is subject to the ADA.

The city’s motion to dismiss Ms. Salinas’ case was denied. Whether what was provided in this case violated the ADA and Section 504 is left to be addressed later in the case.

COMMENT: The decision is a reasonable one and tailored to the facts in the particular case. It would be quite difficult for a court to attempt in the abstract to draw specific lines to distinguish, in advance, which sorts of police activity are or are not covered to which aspects of the ADA. For now, it is a positive result that, when a 911 call establishes that a person in distress needs is deaf and needs an ASL interpreter, the city’s emergency response system needs to do more than ignore that plea.

Salinas v. City of New Braunfels, 2006 WL 3751182 (Dec, 18, 2006, W.D.Tex.)