Bartell v. Grifols Shared Servs. Na

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EMILY BARTELL, Plaintiff, v. GRIFOLS SHARED SERVICES NA, INC., INTERSTATE BLOOD BANK, INC., and BIOMAT USA, INC., Defendants.

No. 1:21-cv-953

United States District Court, M.D. North Carolina

July 31, 2023

MEMORANDUM OPINION AND ORDER

WILLIAM L. OSTEEN, JR., DISTRICT JUDGE

Before this court are cross-motions for summary judgment. (Docs. 52 58.) Emily Bartell (“Plaintiff”) moves for summary judgment on her claim that Defendants violated the Americans with Disabilities Act (“ADA”) and Rehabilitation Act and seeks declaratory and injunctive relief. (Doc. 52 at 2.) Plaintiff also moves for summary judgment on her effective communication claim. (Id. at 3.) Finally, Plaintiff asks this court to find Defendants acted with deliberate indifference. (Id. at 2.) Grifols Shared Services NA, Inc., Interstate Blood Bank Inc., and Biomat USA, Inc. (“Defendants”) seek summary judgment on Plaintiff's effective communication claim and ask this court to find as a matter of law that they did not act with deliberate indifference. (Doc. 58.) Also before this court is Plaintiff's Motion for Leave to File a Surreply. (Doc. 66.)

This court will grant Plaintiff's Motion for Leave to File a Surreply, (Doc. 66), grant in part Plaintiff's Motion for Summary Judgment, (Doc. 52), and grant Defendants' Motion for Summary Judgment, (Doc. 58).

I. FACTUAL BACKGROUND

The majority of the facts in this case are uncontested and outlined below. Additional facts will be discussed in the analysis as necessary. To the extent there are factual disputes, they will be resolved in the light most favorable to the nonmoving party in considering each motion for summary judgment. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003).

Plaintiff is blind and relies on a service animal to navigate her surroundings. (Bartell Decl. (Doc. 52-3) ¶¶ 3-4.)^[1] Plaintiff's service animal is an eight-year-old golden retriever that was trained by the Seeing Eye Inc., an organization that trains service dogs for people who experience blindness. (Id. ¶ 6; Johnston Decl. (Doc. 52-4) ¶¶ 1-2.) Plaintiff's service animal “is well-groomed, in good health, and up-to-date on all required vaccinations.” (Decl. of Emily Bartell (“Bartell Suppl. Decl.”) (Doc. 27-1) ¶ 4.) Plaintiff's service animal regularly sees a veterinarian and has never given Plaintiff an infection. (Id. ¶¶ 5-7.)

Plaintiff began donating plasma at a plasmapheresis donation center (“PDC”) in Asheville, North Carolina in August 2019. (Bartell Decl. (Doc. 52-3) ¶ 12.) The PDC is operated by Interstate Blood Bank, Inc. (“IBBI”). (Becker Decl. (Doc. 52-6) ¶ 5.) In December 2020, IBBI was acquired by Grifols Shared Services NA, Inc. (“Grifols”). (Id. ¶ 6.) Biomat USA, Inc. is the parent company of IBBI and is also owned by Grifols. (Id. ¶ 7.)

A. Plasma Donation Process

There are four phases for new donors in the plasma donation process. (Becker Decl. (Doc. 52-6) ¶ 12.) “First, prior to each donation, all donors must complete a health history questionnaire ....In the Asheville PDC, this is typically done with a self-serve kiosk in the lobby.” (Id. ¶ 13.)

The second step of the plasma donation process requires donors to “complete a screening process where the donor's weight, blood pressure, pulse and temperature are measured, and a blood sample is collected to test for total protein and hematocrit.” (Id. ¶ 14.) Because a staff member is required to complete the health screening, “sometimes donors must wait in a designated area until a staff member is available.” (Id.)

Only new patients complete the third step, “an in-depth health history interview with a member of the medical staff, an informed consent process for the plasmapheresis process, and a physical examination.” (Id. ¶ 15.)

The fourth step is the plasma donation. (Id. ¶ 16.) A donor is led to the donor floor, where he lays in a bed while the plasma donation process (“plasmapheresis”) occurs. (Id.)

B. Plaintiff's Plasma Donation

Plaintiff has been “a routine plasma donor” at the Asheville PDC since August 2019. (Bartell Decl. (Doc. 52-3) ¶ 12.) The kiosks that donors use to complete phase one of the plasma donation process are inaccessible to Plaintiff. (Id. ¶ 33; see also Pl.'s Expert Disclosures (Doc. 52-12) at 26.) The kiosks could be made accessible to blind users “through hardware and software changes.” (Pl.'s Expert Disclosures (Doc. 52-12) at 26.)

Instead of completing the health history questionnaire on the self-serve kiosks, Plaintiff “must wait for a staff member to become available to complete the check in process.” (Bartell Decl. (Doc. 52-3) ¶ 34.) Plaintiff verbally completes the health history questionnaire with a staff member in the same area where all donors complete phase two, the health screening. (Id. ¶ 35.) This area is known as a “privacy booth.” (See Cunningham Decl. (Doc. 59-3) ¶ 3.) Each “privacy booth[] . . . has three walls that reach the ceiling. One of the walls has a door in which potential donors enter and exit. The fourth ‘wall' is a desk. The area behind the desk opens into a staff-only administrative area.” (Id. ¶ 7.)

Donors who cannot use the kiosks, due to blindness, illiteracy, or another reason, also complete the second step of the plasma donation process, the health history questionnaire, in the privacy booths. (Id. ¶¶ 4-5.) “Additionally, sighted donors who are able to read printed material sometimes provide medical information in the privacy booth if they have a question about a portion of the health history questionnaire or if one of their responses triggered necessary follow-up to determine their eligibility.” (Id. ¶ 6.)

During the second step, the health history questionnaire, Plaintiff must verbally disclose personal information, including her social security number, date of birth, and full name. (Pl.'s First Dep. (Doc. 52-5) at 13.) While in the privacy booths, Plaintiff can overhear other donors and assumes they can hear her as well. (Pl.'s Second Dep. (Doc. 52-14) at 10.)

Plaintiff testified that it takes an average of twenty minutes to orally complete the health history questionnaire with an employee. (Pl.'s Dep. (“Defs.' Excerpts Bartell Dep.”) (Doc. 59-2) at 14.) By comparison, Plaintiff's partner also donates plasma at the PDC - he uses the kiosks and the check in process usually takes him three to five minutes. (Holloway Decl. (Doc. 52-11) ¶¶ 2-3, 9, 11.)

Plaintiff stated that “in a perfect world,” she would complete the health history questionnaire on an accessible kiosk where she would plug in headphones, the questionnaire would be read to her, and she would select her answers. (Defs.' Excerpts Bartell Dep. (Doc. 59-2) at 17-18.) Plaintiff stated she uses the Siri application and VoiceOver setting on her phone to have information read aloud to her and she would like to interact with the kiosk similarly. (See id. at 15-18.)

Plaintiff testified that the employees who read the health history questionnaire to her at the PDC sometimes mispronounce words and that Siri and VoiceOver also sometimes make pronunciation errors. (Id. at 12-13, 19.) However, Plaintiff “understand[s] and comprehends[s] everything” read to her during the questionnaire and understands the information being communicated to her by Siri and VoiceOver “the majority of the time.” (Id. at 13-14, 19-20.)

After verbally completing the health history questionnaire with an employee, Plaintiff and the employee remain in the privacy booth and complete the health screening. (See Bartell Decl. (Doc. 52-3) ¶ 21.) After this step Plaintiff is taken to the donation floor for plasmapheresis. (Id. ¶¶ 21-22.) In contrast, after other donors complete the health history questionnaire at the kiosk, they must wait for a staff member to escort them to a privacy booth for the health screening. (See Becker Decl. (Doc. 52-6) ¶ 14.)

From August 2019 until December 2020, Plaintiff's service animal accompanied her through all stages of the donation process. (Bartell Decl. (Doc. 52-3) ¶¶ 12, 23-24.) During plasmapheresis, Plaintiff's service animal would lay “on the opposite side of [her] donor chair from the plasma machine” and “was on leash and under [her] verbal command throughout the plasma donation process.” (Suppl. Bartell Decl. (Doc. 27-1) ¶¶ 9-10.) Plaintiff's “service animal never interfered with the plasma donation process,” and “[t]he donation center staff frequently told [Plaintiff] that [her] service animal is one of the best service animals they encountered.” (Id. ¶¶ 11, 13.)

C. Denial of Plaintiff's Service Animal

In December 2020, “Grifols wholly acquired IBBI[,] and IBBI began implementing Grifols' health and safety standards.”

(Becker Decl. (Doc. 52-6) ¶ 6.) One of Grifols' policies was to “prohibit . . . service animals from entering the donor floor.” (Id. ¶ 23.) Defendants' stated reason for the policy was to “protect the collection materials and collected plasma from microbial and other contamination and [to protect] the safety of staff and donors, whether that be through risk of infection or posing tripping hazards.” (Id. ¶ 24.)

In line with this policy, staff at the PDC told Plaintiff that her service animal could not accompany her onto the donor floor on December 24, 2020. (Bartell Decl. (Doc. 52-3) ¶ 23.) In response, Plaintiff showed one of Defendants' employees information about the rights of people with service animals under the ADA. (Doc. 64-5 at 4-5.) Plaintiff's counsel also wrote demand letters to the PDC's Center Manager (see Cunningham Decl. (Doc. 59-3) ¶ 2), stating that the exclusion of service animals from the donor floor is discriminatory. (See Docs. 64-6, 64-7.)

Grifols' Assistant General Counsel responded that service animals were excluded from the donor floor “to ensure the health and safety of...