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Rumble v. Fairview Health Services

United States District Court, D. Minnesota

March 16, 2015

Jakob Tiarnan Rumble, Plaintiff,
Fairview Health Services d/b/a Fairview Southdale Hospital, and Emergency Physicians, P.A., Defendants.

Christy L. Hall, Jill R. Gaulding, and Lisa C. Stratton, Gender Justice, Minnesota Women's Building, 550 Rice Street, Suite 105, St. Paul, MN 55103; Katherine S. Barrett Wiik, Robins Kaplan LLP, 800 LaSalle Avenue, Suite 2800, Minneapolis, MN 55402-2015, for Plaintiff.

Jessica M. Marsh, Sara Gullickson McGrane, and Scott D. Blake, Felhaber Larson, 220 South 6th Street, Suite 2200, Minneapolis, MN 55402-4504, for Defendant Fairview Health Services d/b/a Fairview Southdale Hospital.

Chad W. Strathman, Emergency Physicians P.A., 5435 Feltl Road, Minnetonka, MN 55343, for Defendant Emergency Physicians, P.A.




This matter is before the Court on (1) Defendant Emergency Physicians, P.A.'s Motion to Dismiss [Doc. No. 11]; and (2) Defendant Fairview Health Services' Motion to Dismiss [Doc. No. 18]. For the reasons set forth below, the Court denies both motions.


Plaintiff Jakob Tiarnan Rumble ("Rumble" or "Plaintiff") filed suit against Defendant Fairview Health Services, d/b/a Fairview Southdale Hospital ("Fairview"), and Emergency Physicians, P.A. ("Emergency Physicians"), alleging that the treatment he received at Fairview from June 23 to June 28, 2013, constitutes discrimination in violation of Section 1557 of the Affordable Care Act ("ACA"), 42 U.S.C. § 18116, and the Minnesota Human Rights Act ("MHRA"), Minn. Stat. § 363A.11. (See generally Compl. [Doc. No. 1].) Specifically, Rumble alleges that "he received worse care [from both Defendants]... because of his status as a transgender man." (See id. ¶ 3.)

Rumble resides in Hennepin County, Minnesota. (Id. ¶ 4.) He was eighteen years old when he experienced the alleged discrimination by Defendants. (See Pl.'s Mem. at 10 [Doc. No. 25].)

Defendant Fairview is a "Minnesota-based health care organization receiving federal and state financial assistance such as credits, subsidies, or contracts of insurance." (Id. ¶ 6.) At all times relevant, Fairview owned and operated Fairview Southdale Hospital, which is located at 6401 France Avenue South, Edina, Minnesota 55435. (Id. ¶ 5.) Plaintiff alleges that Fairview "employed the services of doctors, nurses, and other healthcare professional and non-professional health care providers, including the nurses and other health care providers who cared for Jakob Rumble in June 2013, and held itself out and warranted itself to the public as competent, careful, and experienced in the care and treatment of patients." (Id. ¶ 7.)

Like Fairview, Defendant Emergency Physicians is also a "Minnesota-based healthcare organization receiving federal and state financial assistance such as credits, subsidies, or contracts of insurance." (Id. ¶ 10.) Emergency Physicians employs the emergency room physicians who staff Fairview Southdale Hospital. (Id. ¶ 9.) Plaintiff alleges that Randall Steinman, M.D. is one such emergency room physician who is employed by Defendant Emergency Physicians. (Id. ¶ 12.)

A. Terminology Overview

Given the nature of this case, the Court provides an overview of the relevant terminology before detailing Plaintiff's claims. Rumble self-identifies as a "female-tomale transgender man." (Id. ¶ 4.) Transgender is "[a]n umbrella term that may be used to describe people whose gender expression does not conform to cultural norms and/or whose gender identity is different from their sex assigned at birth. Transgender is a selfidentity, and some gender nonconforming people do not identify with this term." See Trans Bodies, Trans Selves: A Resource for the Transgender Community 620 (Laura Erickson-Schroth, ed. 2014). Although Rumble was "labeled female at birth and given a female birth name, " he "identifies as male." (Compl. ¶ 25 [Doc. No. 1].)

Recently, courts have broadly characterized an individual's transgender status as part of that individual's "sex" or "gender" identity. See, e.g., Smith v. City of Salem, Ohio , 378 F.3d 566, 572-73 (6th Cir. 2004) (holding that plaintiff with gender identity disorder sufficiently stated constitutional and Title VII sex discrimination claims based on his allegations that he was discriminated against because of his gender nonconforming behavior and appearance); Radtke v. Miscellaneous Drivers & Helpers Union Local No. 638 Health, Welfare, Eye & Dental Fund , 867 F.Supp.2d 1023, 1032 (D. Minn. 2012) (explaining that "the narrow view' of the term sex' in Title VII" in Sommers v. Budget Mktg., Inc. , 667 F.2d 748, 750 (8th Cir. 1982), "has been eviscerated by Price Waterhouse.'") (quoting Smith , 378 F.3d at 573).

This recent development is a result of the United States Supreme Court's ruling in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), superseded on other grounds by statute as stated in Burrage v. U.S. , 134 S.Ct. 881 (2014). In Price Waterhouse, the Supreme Court held that Title VII's prohibition against discrimination because of sex includes discrimination based on gender stereotyping. See 490 U.S. at 250-52. Because the term "transgender" describes people whose gender expression differs from their assigned sex at birth, discrimination based on an individual's transgender status constitutes discrimination based on gender stereotyping. Therefore, Plaintiff's transgender status is necessarily part of his "sex" or "gender" identity.

However, an individual's transgender status in no way indicates that person's sexual orientation. See American Psychological Association, Identification of Terms: Sex, Gender, Gender Identity, Sexual Orientation, available online Although this principle is factually correct, the State of Minnesota defines "sexual orientation" as including "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness." See Minn. Stat. § 363A.03, subd. 44. Therefore, solely for purposes of the Court's discussion of Plaintiff's Minnesota state law discrimination claim, the Court considers Plaintiff's gender identity as part of his "sexual orientation."

B. Plaintiff's Medical Condition Before Going to Fairview Hospital

Rumble alleges that "[d]uring the week of June 16 to June 22, 2013, [he] saw his primary care provider with a complaint that his reproductive organs were inflamed and causing him extreme pain." (Compl. ¶ 26 [Doc. No. 1].) Plaintiff has a "uterus, vagina, cervix, and labia."[1] (See id. ¶ 42.) Rumble's primary care physician prescribed a "7-day course of antibiotic treatment." (Id. ¶ 26.) However, Rumble's pain allegedly increased during the course of his antibiotic treatment. (See id. ¶ 27.) In fact, Rumble alleges that he "could hardly walk because of the pain[, and] [w]hen he urinated, he had to grab something to brace himself or bit down on a towel to endure the pain." (Id.)

On June 23, 2013, when the pain had reached this severity, Plaintiff's mother, Jennifer Rumble, took Plaintiff's temperature and determined that he had a one hundred and four degree fever. (Id.) As a medical professional, Jennifer Rumble knew that "800 mg of ibuprofen" is the "highest safe dosage for an adult." (Id. ¶¶ 37, 27.) To treat her son's pain, Jennifer gave Plaintiff 800 mg of ibuprofen. (Id. ¶ 27.) Plaintiff alleges that after he took the ibuprofen, he and his mother went to the emergency room at Fairview Southdale Hospital, which "was the hospital closest to their home." (Id. ¶ 28.)

C. Treatment Plaintiff Received During Intake

Plaintiff arrived at Fairview at approximately 1 pm on June 23, 2013. (Id.) When checking-in at the front desk, Rumble handed the front desk clerk his driver's permit. (Id. ¶ 29.) At the time, Rumble's driver's permit "incorrectly identified [him] as female." (Id.) The clerk allegedly told Rumble that he could not find Rumble in the computer system, and Rumble responded by telling the clerk his birth name. (See id.) The Fairview clerk told Rumble that Fairview has "female on file, " and subsequently gave Plaintiff a wristband labeled with an "F." (See id. ¶ 30.)

Plaintiff claims that he was given this "F" wristband even though he told the clerk that he identifies as male. (See Pl.'s Mem. at 1 [Doc. No. 25].) Although Plaintiff's Complaint does not expressly state that Rumble told the clerk that he identifies as male, the Court reads Plaintiff's Complaint as alleging that Rumble communicated his gender identity when he answered the clerk's "preliminary questions." (See Compl. ¶ 29 [Doc. No. 1].) Rumble further alleges that during this exchange with the Fairview clerk, the clerk "left the front desk to speak to [another] person and held a folder in front of his face while whispering to this person." (See id. ¶ 31.) Rumble believes that these two individuals were "discussing his gender." (Id.)

The clerk then took Rumble to an intake nurse in an examining room. (See id. ¶ 32.) Rumble allegedly registered a temperature of nearly one hundred degrees, "described the severity of his pain" to the intake nurse, and also told the intake nurse about his prior one hundred and four degree fever. (See id. ¶ 32-33.)

After Plaintiff's meeting with the intake nurse, Rumble and his mother were transferred to another room, where they waited to be seen by a doctor for hours. (See id. ¶ 35.) Rumble alleges that he remained in "severe pain" while he waited in this room. (See id.) Although Plaintiff and his mother both tried to call a nurse using the call button in the room, allegedly, no one responded to the call. (See id.) In order to gain the attention of a medical professional in the hospital, Plaintiff claims that his mother would "leave the room and search for emergency room staff." (Id. ¶ 36.) Rumble's mother told staff members that her son was in severe pain and asked for him to receive pain medication. (See id. ¶ 35.) Emergency room staff allegedly responded by stating that "they would need to ask a doctor about [administering or obtaining pain medication for Rumble]." (See id.) Finally, "[a]fter several hours, " Fairview staff gave Plaintiff some pain medication. (Id. ¶ 36.) Plaintiff and his mother believe that "people with less urgent medical needs were treated much more quickly than [Rumble] was treated." (Id. ¶ 37.)

D. Treatment Plaintiff Received by Emergency Room Doctor

Dr. Randall Steinman finally came to Rumble's room four and a half to five hours after Rumble initially arrived at the emergency room. (See id. ¶ 38.) Dr. Steinman is employed by Defendant Emergency Physicians. (See Compl. ¶ 12 [Doc. No. 1].) Dr. Steinman was accompanied by a female nursing assistant/emergency room technician, and Dr. Karee Lehrman, an obstetrician-gynecologist. (Id. ¶ 38.) Dr. Steinman allegedly asked Rumble in a "hostile and aggressive manner, " "[w]ho are you having sex with?" (Id. ¶ 39.) When Rumble asked Dr. Steinman "what he meant by that [question], " Dr. Steinman asked, "[m]en, women, or both?" (See id. ¶ 40.) Rumble alleges that "Dr. Steinman seemed angry, and held his face a few inches from [Rumble's] face when he asked questions." (Id.) In fact, Rumble claims that "Dr. Steinman's manner was so hostile that [Rumble] felt as if the questions were an attempt to embarrass [Rumble] rather than to diagnose him." (Id.) For instance, Dr. Steinman allegedly asked Plaintiff if he was "engaging in penetration, " and whether "he'd ever had sex with objects." (See id.)

After questioning Rumble, Dr. Steinman proceeded with a physical examination of Plaintiff's genitalia. Plaintiff informed Dr. Steinman that "he was in extreme pain, " and asked Dr. Steinman "to please be gentle." (See id. ¶ 41.) "Dr. Steinman took a strip of gauze and [allegedly] wiped [Rumble's] labia in a very rough manner." (Id. ¶ 43.) In fact, Rumble alleges that he "felt like he was being stabbed, " because "[i]t seemed as if [Dr. Steinman] was pressing down as hard as he could." (Id.) Dr. Steinman then allegedly "repeatedly jabbed at [Rumble's] genitals with his fingers." (Id.) Rumble began to cry from the pain of this exam. (See id.)

When Dr. Steinman asked "[i]s this what this normally looks like?, " Plaintiff "responded that his labia were swollen to almost three times their normal size." (Id. ¶ 44.) Dr. Steinman then allegedly stated that "he couldn't tell what was going on because of the male hormones." (See id.) Rumble takes prescription hormone medication. (Id. ¶ 42.) Throughout the exam, Dr. Steinman "repeated several times that he didn't know what the male hormones [Rumble] was taking were doing to [Rumble's] body, " nor did Dr. Steinman know "how much swelling was due to the hormones." (Id.)

Dr. Steinman proceeded by continuing to jab Plaintiff's genitals. (Id. ¶ 45.) Rumble cried out from the pain, and when he could not bear the pain any longer he asked Dr. Steinman to stop the exam, twice. (See id.) However, "Dr. Steinman [allegedly] ignored him and did not stop, but continued to forcefully jab at [Rumble's] genitals, causing [Rumble] more pain." (Id.) Although Dr. Lehrman and the female nursing assistant/emergency room technician were in the exam room, they did not intervene or stop Dr. Steinman. (See id. ¶ 48.)

Rumble then asked his mother, "Mom, can you make him stop?" (Id. ¶ 46.) Jennifer Rumble responded by allegedly yelling "[s]top! He said that you needed to stop. Didn't you hear him?" (Id.) At this point, the female nursing assistant/emergency room technician left the room. (See id.) Dr. Steinman finally stopped jabbing Plaintiff's genitals and Rumble asked whether Dr. Steinman had determined the problem. Dr. Steinman allegedly stated in a tense and angry voice, "I can't tell you because your mom made me stop the exam." (See id. ¶ 47.) Without further explanation, Dr. Steinman then allegedly left the room. (See id.)

Once both doctors had left Rumble's exam room, Rumble waited in the room for two additional hours. (See id. ¶ 49.) Jennifer Rumble asked emergency room staff if they often made people wait in the emergency room for nearly seven hours, and the staff allegedly responded they did not. (See id. ¶ 50.) Rumble's mother also asked whether she and her son could have something to eat. (See id.) Although the staff initially stated that they did not feed people who were in the emergency room, after acknowledging that the Rumbles had been waiting for nearly seven hours, the staff brought the Rumbles sandwiches. (See id.)

E. Treatment Plaintiff Received Once Admitted to Fairview

Finally, around 8 pm on June 23, 2014, Plaintiff was admitted to the hospital. (Id. ¶ 51.) Jennifer Rumble was later informed by a Fairview hospital doctor that her son "would have been septic within 12 to 24 hours [from] when [she] brought [her son] in[to the emergency room] and he could have died." (Id. ¶ 59.) Because of the interaction with Dr. Steinman, Rumble was afraid of being left alone in the hospital. (Id. ¶ 51.) Rumble's mother shared his fear, as "[s]he did not know what might happen if she was not present." (Id. ¶ 52.) Therefore, Rumble's mother stayed in the hospital with her son for his entire stay, and she spent nights sleeping on a chair. (Id.)

Rumble was in the hospital for six days. (Id. ¶ 62.) While he was a patient, he had his own private room. (Id. ¶ 54.) On a dry erase board on the wall across from the foot of Rumble's bed, Fairview staff tracked the names of Rumble's on-duty nursing staff, his reported pain levels, and the names and specialties of his treating physicians. (See id.) One of Rumble's treating physicians was Dr. Lehrman, the same doctor who was present during Rumble's interaction with Dr. Steinman. (See id.) The dry erase board indicated that Dr. Lehrman is an "OB/GYN." (See id.) Rumble alleges that he was "upset and embarrassed by Defendant Fairview's disclosure on the dry erase board[, ] that he was being treated by an OB/GYN[, ]' to non-medical personnel such as dietary and housekeeping/environmental services and any personal guests to his room." (See id. ¶ 55.) Accordingly, Rumble's mother erased the "OB/GYN" notation with her finger after observing her son's discomfort with the visible information. (See id.) Rumble alleges that this visible notation was unnecessary because "all medical professionals treating [Plaintiff] would have had access to the same information on his charts." (Id.)

In addition to Dr. Lehrman, Rumble was assigned an infectious disease doctor, Dr. Stephen Obaid. (See id. ¶ 56.) Dr. Obaid examined Rumble around 7 am on June 24, 2013. (Id.) Dr. Obaid examined Plaintiff's genital area while wearing gloves, then wiped his gloves on the blanket on Rumble's bed, and proceeded to examine Rumble's eyes and mouth using the same gloves. (See id.) Rumble "later developed sores on his face in the places that Dr. Obaid had touched." (Id.)

In addition to the lack of sanitary or hygienic precautions taken by Dr. Obaid, Plaintiff alleges that he was mistreated by the nurses at Fairview. (See id. ¶¶ 57-58.) For instance, Rumble claims that "some of the nurses were hostile towards him because they seemed tense and avoided speaking to him when they came into his room." (Id. ¶ 57.) Additionally, at the beginning of each nurse's shift, the nurse would examine his genitals. (Id.) Rumble asked one nurse why the nurses needed to conduct this exam, and the nurse responded that it was simply "completely necessary, " without elaborating further. (Id.) Rumble also asked this nurse if she knew what was wrong and she responded that "I don't know because I don't have any experience with this sort of thing." (Id. ¶ 58.) Rumble believes that the nurse implied that she had no experience with transgender patients. (Id.)

Although Rumble was initially treated with antibiotics when he was admitted to the hospital, he "did not appear to be getting any better." (Id. ¶ 53.) Therefore, Rumble's mother decided to complete her own research and she "searched the internet to get information about what might be wrong." (Id. ¶ 60.) As a result of her research, she asked Dr. Obaid if her son may have a sexually-transmitted infection. (Id.) After this suggestion, Dr. Obaid swabbed Rumble's genitals for testing, and informed Rumble's mother that "it would be a week before they had the lab results." (Id. ¶ 61.) Nonetheless, Fairview staff began to treat Rumble with a different medication and his medical condition began to improve. (Id.) After two days on the new medicine, Rumble asked to be discharged. (Id. ¶ 62.) Although Rumble believed that he could have improved more from staying longer in the hospital, "he did not feel safe at the hospital and preferred to leave." (Id.) Rumble was released from the hospital on Friday, June 28, 2013. (Id.)

F. Aftermath from Plaintiff's Treatment at Fairview

A few weeks later, Rumble received a bill from Emergency Physicians, the group that employs Dr. Steinman. (Id. ¶ 63.) The bill was in regards to his emergency room visit at Fairview Southdale Hospital. (Id.) "The bill indicated [that] no insurance payments were pending and [Rumble] owed the full amount. In the billing description for the time he had spent at Fairview Southdale Hospital, it stated, THE DIAGNOSIS IS INCONSISTENT WITH THE PATIENT'S GENDER.'" (Id.) In contrast to the statement on this bill, Plaintiff alleges that his ultimate diagnoses were conditions that can, and do, affect people of any sex or gender.[2] (Id.)

As a result of his experience with Defendants, Plaintiff fears doctors and "refuses to visit a hospital or doctor's office alone." (Id. ¶ 64.) Additionally, Rumble claims that he will never go to Fairview Southdale Hospital again, "even in an emergency" although it is the nearest hospital to his home. (Id. ¶ 65.)

The Court also notes that on December 12, 2013, Plaintiff filed a complaint of discrimination with the Office for Civil Rights ("OCR") in the Department of Health and Human Services alleging that Defendants violated his rights under Section 1557 of the ACA. (Id. ¶ 67.) "The OCR is responsible for ensuring compliance with Section 1557. Region V of [the] OCR is responsible for investigating and remedying violations of Section 1557 that occur in Minnesota, where Fairview Southdale Hospital is located." (Id.) The OCR's investigation of this matter is allegedly ongoing.

G. Plaintiff's Claims

Plaintiff's Complaint states two counts against Defendants. In Count I, Plaintiff alleges that Defendants discriminated against him on the basis of sex, in violation of Section 1557 of the ACA.[3] (See id. ¶¶ 69-76.) According to Section 1557:

Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for purposes of violations of this subsection.

See 42 U.S.C. § 18116 (emphasis added). Accordingly, Defendants, who both allegedly received federal financial assistance, may not discriminate against Plaintiff on the basis of "sex, " as Title IX prohibits discrimination on this "ground." See id.

When analyzing Title IX, courts have interpreted the term "sex" to include "individuals who are perceived as not conforming to gender stereotypes and expectations." (See Compl. ¶ 72 (citing Kastl v. Maricopa Cnty. Community College Dist., No. 02-cv-1531 (PHX/SRB), 2004 WL 2008954, at *2 (D. Ariz. June 3, 2004) (stating that "[i]t is well settled that Title VII's prohibition on sex discrimination encompasses discrimination against an individual for failure to conform to sex stereotypes."), and Miles v. New York University , 979 F.Supp. 248, 250 n.4 (S.D.N.Y. 1997) (explaining that "the Title IX term on the basis of sex' is interpreted in the same manner as similar language in Title VII")) [Doc. No.1].) Furthermore, Leon Rodriguez, the Director of the OCR, stated in an agency opinion letter that Section 1557 of the ACA "extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity." (See Barrett Wiik Decl., Ex. C [Doc. No. 26-1].) Accordingly, Plaintiff alleges that, in direct violation of Section 1557, "Defendants perpetrated discrimination[, based upon Rumble's gender identity or transgender status, ] with malice, deliberate disregard for, or deliberate reckless indifference to Plaintiff's rights." (Compl. ¶ 75 [Doc. No. 1].)

In Count II, Plaintiff alleges that Defendants' conduct violated the MHRA, Minn. Stat. § 363A.11. (See id. ¶¶ 77-82.) Pursuant to the MHRA, it is an "unfair discriminatory practice:"

to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin, marital status, sexual orientation, or sex...

See Minn. Stat. § 363A.11, subd. 1(a)(1) (emphasis added). As noted above, Minnesota law defines "sexual orientation" as "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness." See Minn. Stat. § 363A.03, subd. 44. Plaintiff claims that, under the MHRA, he is protected from discrimination based on his gender identity and transgender status, ...

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