The opinion of the court was delivered by: Lee, District Judge.
Fifteen month old Darrin ("D.J.") Majocha suffered from chronic ear
infections in 1999. D.J.'s pediatrician referred his parents to Dr.
Joseph Turner, M.D., a preeminent specialist at the Pittsburgh Ear, Nose
and Throat Associates ("ENT"), to discuss the possibility of surgery to
insert tubes in D.J.'s ears. On or about August 25, 1999, Anna Majocha
called ENT to make an appointment for her and her husband, Darrin
Majocha, to bring D.J. in for an evaluation with Dr. Turner. Darrin
Majocha is deaf and has communicated primarily by use of American Sign
Language ("ASL") all of his life, and his family has an extensive history
of severe hearing impairment.
The parties agree that: (i) an appointment with Dr. Turner was
scheduled for September 3, 1999; (ii) Mrs. Majocha informed the
receptionist and the office manager, Ms. Joan Hornbake, about Mr.
Majocha's hearing impairment; (iii) Mrs. Majocha requested Dr. Turner's
office supply a qualified ASL interpreter during the consultation; (iv)
Ms. Hornbake indicated that Dr. Turner preferred to communicate with
Darrin Majocha by written communication during the office visit; (v) the
matter was not resolved on August 25, 1999; (vi) Mrs. Majocha spoke with
Ms. Hornbake again on August 27, 1999, at which time Ms. Hornbake
informed Mrs. Majocha that Dr. Turner would communicate by written notes
and Mrs. Majocha insisted that an ASL interpreter be provided so her
husband could fully participate in the consultation and decision about
treatment of their son.
The parties disagree about some of the details of these conversations,
e.g., how much information Mrs. Majocha gave Ms. Hornbake about her
husband's hearing impairment, whether she initially agreed to accept note
taking as a substitute or simply agreed to consider it, whether Dr.
Turner's staff made it clear that the consultation would be for as long
as it took to complete using written communication with Mr. Majocha,
whether the parties had agreed to schedule a longer appointment to
accomplish communication by written notes. What is not in dispute,
however, is that on August 27, 1999, Ms. Hornbake sent the following
letter to Mrs. Majocha, after Dr. Turner had reviewed it:
Per our telephone conversation of this afternoon, I am
canceling [D.J.'s] appointment with Dr. Turner on
Friday, September 3, 1999.
As indicated during the conversation, we feel we
cannot meet your needs in caring for your child.
Perhaps another ENT physician would better meet your
needs and therefore be able to care for [DJ].
We suggest you contact the ENT department of
Children's Hospital or your pediatrician for another
/s/ Joan K. Hornbake Joan K. Hornbake Office Manager
cc: GIL Pediatrics. . . .
Complaint, Exhibit A (hereafter, "the Letter").
After receiving the Letter cancelling the appointment and advising
plaintiffs to go elsewhere for treatment of their son, they
contacted the Ear, Nose and Throat department at Children's Hospital, and
D.J. was operated on for placement of tubes in both of his ears on
September 7, 1999. The surgery went well. On March 23, 2000, plaintiffs
filed a complaint in this Court against Dr. Turner, ENT, Dr. Michael A.
Gottleib, M.D., and Dr. Louis S. Felder, M.D., setting forth claims under
section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (a),
and Title III of the Americans with Disabilities Act, ("ADA"),
42 U.S.C. § 12101 et seq., seeking a declaratory judgment, injunctive
relief, compensatory and punitive damages and attorneys fees. Drs.
Gottleib and Felder are listed on the ENT letterhead as "associates" of
ENT, as is Dr. Turner, and all three physicians are officers of ENT
according to Dr. Turner's deposition testimony.
Defendants have filed a motion for summary judgment (Document No. 18)
setting forth a variety of reasons why this Court should grant summary
judgment in their favor. After careful consideration of the motion for
summary judgment, the memoranda of law in support and in opposition, and
the statements of material facts in support and opposition with
supporting materials attached, this Court will deny the motion for
summary judgment. This is not a close decision.
Summary judgment is appropriate "`if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.'" Woodside v. School Dist. of Philadelphia Rd. of Educ.,
248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States,
238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). In following this
directive, a court must take the facts in the light most favorable to the
non-moving party, and must draw all reasonable inferences and resolve all
doubts in that party's favor. Doe v. County of Centre, PA, 242 F.3d 437,
446 (3d Cir. 2001); Woodside, 248 F.3d at 130; Heller v. Shaw Indus.,
Inc., 167 F.3d 146, 151 (3d Cir. 1999).
When the non-moving party will bear the burden of proof at trial, the
moving party's burden can be "discharged by `showing' — that is,
pointing out to the District Court — that there is an absence of
evidence to support the non-moving party's case." Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the
moving party has carried this burden, the burden shifts to the non-moving
party who cannot rest on the allegations of the pleadings and must "do
more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Petruzzi's IGA
Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.
1993). With these standards in mind, the Court will review defendants'
arguments for summary judgment seriatim.
I. Defendants Complied with Title III of the Americans with Disabilities
Act and Section 504 of the Rehabilitation Act of 1973 as a Matter of
There is no doubt plaintiffs have offered more than adequate evidence
to support their ADA and Rehabilitation Act claims, notwithstanding
defendants' inexplicable assertion that there is not a "shred of
evidence" to support their claims. Defendants' argument is based ...