Argued: May 10, 2019
Biondo, who is profoundly deaf, appeals from a judgment of
the District Court for the Western District of New York
(Geraci, J.) dismissing on summary judgment her claim that a
hospital violated the Rehabilitation Act by failing to
provide an ASL interpreter. We conclude that material issues
of fact preclude summary judgment. Vacated and remanded.
Rozynski, Juyoun Han, and Jennifer L. Karnes, Eisenberg &
Baum, LLP, New York, NY, for the Appellant.
R. Affronti, Roach, Brown, McCarthy & Gruber, Buffalo,
NY, for the Appellee.
Before: Jacobs, Leval, Circuit Judges; Furman [*] , District Judge.
JACOBS, CIRCUIT JUDGE:
Biondo, who is profoundly deaf, appeals from a judgment
dismissing on summary judgment her claim that a hospital
violated the Rehabilitation Act by failing to provide an
American Sign Language ("ASL") interpreter. We
conclude that material issues of fact preclude summary
2014, Biondo sought treatment at the Buffalo General Medical
Center ("BGMC") for recurrent episodes of fainting.
She and her husband, who is not hearing impaired,
unsuccessfully requested an ASL interpreter from hospital
staff several times during her six-day stay. Biondo has
alleged violations of Section 504 of the Rehabilitation Act
(the "RA"), Title III of the Americans with
Disabilities Act (the "ADA"), the New York State
Human Rights Law (the "NYSHRL"), and the City of
Buffalo Antidiscrimination Law (the "CBAL"). The
United States District Court for the Western District of New
York (Geraci, J.) granted BGMC's motion for
summary judgment as to the RA and ADA claims and dismissed
Biondo's state and municipal law claims without
prejudice. Biondo appeals the dismissal of her RA claim for
damages, having abandoned her claims for injunctive and
declaratory relief pursuant to the RA and ADA.
appeal concerns whether and when hospital staff members may
be considered to be acting as 'officials' or
'policymakers' of the hospital so that their conduct
may be attributed to the hospital and thereby establish the
plaintiff's right to damages on the ground that the
defendant institution was 'deliberately indifferent'
to a violation of the RA. BGMC's internal policies
require the provision of interpreter services in certain
situations, including eliciting medical history, explaining
treatment, and giving discharge instructions. Because the
record contains evidence that the hospital staff at issue had
knowledge of the deprivation of Biondo's right to an
interpreter, had the power to cure that violation, and failed
to cure it, summary judgment in favor of BGMC was
who was born deaf, reads at a fourth-to-fifth grade level,
has unintelligible speech, and cannot lipread well. She is,
however, fluent in ASL. Her husband has no training in ASL
and communicates with his wife in a combination of ASL and
private signs and signals. The Biondos also communicate, with some
limitations, via text message.
was admitted to BGMC on September 21, 2014, after she
experienced several fainting episodes, tightness in her
chest, and skipped heartbeats. Biondo's hospital
admission documentation solicits "Preferred Mode of
Communication"; the form indicates "Written."
Nevertheless, on the day of their arrival at BGMC, both
Biondos made requests for an ASL interpreter from several
hospital staff: the attendant working at the arrival desk;
nurses who escorted Biondo to a room and checked her vital
signs; nurses in the emergency room; and nurses in the
department to which Biondo was admitted. During her six-day
hospitalization, she communicated with staff mostly by
writing and through her husband (over his objection) when he
testified that she "kept requesting an interpreter, and
they . . . kept saying, 'we will, we will, we
will.'" App'x 227. Biondo made these requests by
pointing at her left ear, by writing, and through her husband
on his visits. No interpreter was provided during
Biondo's hospitalization. At some point, the Biondos gave
her stay, Biondo provided and received information on her
condition and underwent medical procedures, without an
interpreter. The day after she checked in, Dr. Oliva Balan
obtained her medical history with Mr. Biondo as interpreter.
No interpreter was present when Dr. Donald Switzer examined
Biondo for a cardiology consult or when Nurse Edwin
Sewastynowicz performed a vascular invasive pre-procedure
record, which included explanations of treatments and an
opportunity for Biondo to ask questions. That same day,
Biondo underwent a tilt table test, in which the patient is
fixed to a table that is tilted until the patient faints.
Before the test began, Biondo again unsuccessfully asked for
an interpreter. Also before the test, Biondo was provided a
generic informed consent form with a description of the
procedure to be administered:
[Y]ou will be placed in an upright position and your heart
rate and blood pressure will be monitored. Medication will be
given to help you relax. The oxygen in your blood will be
S. App'x 38. The form also contained a page of
authorizations and waivers. Biondo testified that she signed
the consent form and underwent the test without understanding
what she was signing or what the test entailed. Biondo took
the test without her husband present, and testified that she
was scared, cried, and (at one point) asked Dr. Switzer if
she was going to die.
September 24, the fourth day, Biondo was visited in her room
by Nurse Jennifer DiPasquale, the nurse manager of the unit
to which Biondo was admitted. DiPasquale testified that she
communicated with Biondo via ...