## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 09-3277

___________ Kevin Loye; Gina Gist; Vikki * Marshall; David Stiles, *

* Plaintiffs - Appellants, * Appeal from the United States * District Court for the v. * District of Minnesota.

* County of Dakota, *

* Defendant - Appellee. *

___________ Submitted: June 16, 2010 Filed: November 17, 2010

___________ Before LOKEN, ARNOLD, and GRUENDER, Circuit Judges.

___________ LOKEN, Circuit Judge.

On the afternoon of September 6, 2004, boys stole two bottles of mercury from an abandoned building, took this hazardous substance to a playground near the Rosemount Woods mobile home park, and re leased it while playing. Before police from the City of Rosemount, Minnesota were notified and arrived at the scene, people, homes, and vehicles were contaminated. Police officers knocked on doors to identify those who had been exposed, and the City c ontacted state and local agencies to help deal with the environmental and public h ealth emergency. The Special Operations Team (SOT), a disaster response unit cr eated by an agreem ent between Dakota County and eleven cities including Rosemount , arrived at about 9:00 p.m. and set up1 The Honorable James M. Rosenbaum, Un ited States District Judge for the District of Minnesota, now retired.

-2- a decontamination tent. Shortly after 11:00 p.m., the SOT began decontaminating forty-nine persons who had been exposedto mercury, including Kevin Loye, Gina Gist, Vikki Marshall, and David Stiles, who are deaf. The next day, nurses from the Dakota County Department of Public Health began attendi ng to the victims’ health, housing, and financial needs. The vic tims were provided temporary housing while their quarantined homes were decontaminated . By the end of the month, the health and environmental hazards were successfully abated.

One year later, Loye, Gist, Marshall, and Stiles filed Charges of Discrimination with the Minnesota Department of Human Rights alleging that Dakota County, the City of Rosemount, the State of Minnesota, and the American Red Cross violated the Minnesota Human Rights Act (“MHRA”) when they “failed to provide ASL [American Sign Language] interpreters . . . fo r all of the services they were providing to the public.” In December 2006, the Department issued “No Probable Cause” determinations dismissing the charges agai nst Dakota County. Loye, Gist, Marshall, and Stiles (collectively, “Plaintiffs”) then filed this action in fe deral court, alleging that the County’s failure to provide ASL interpreters violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794; and the MHRA, Minn. Stat. § 363A.12. Two years later, they sued the City, the State, and the American Red Cross in state court asserting the same MHRA claims and alleging that the Department of Human Rights found probable cause to support the charges against these respondents.

At the close of discovery, the district court 1 granted Dakota County’s motion for summary judgment, concluding that Pl aintiffs received effective communication, and therefore meaningful access to the pr ograms and services offered during three relevant periods: (1) the emergency d econtamination process; (2) public group2 In general, the ADA and the MHRA ar e also construed the same. SeeSomers v. City of Minneapolis , 245 F.3d 782, 788 (8th Cir. 2001). Plaintiffs’ brief asserts in a footnote that Minn. Stat. § 363A.12, subd. 1, “imposes more stringent requirements” than the ADA, but they make no separate MHRA argument.

-3- meetings between victims and represen tatives of various government agencies conducted the following week; and (3) additional private meetings between Dakota County Public Health Nurse Gerilee Greel ey and individual plaintiffs. Loye v. County of Dakota , 647 F. Supp. 2d 1081, 1090, 1092, 1094, 1095 (D. Minn. 2009). Plaintiffs appeal. Reviewing the grant of summary judgment de novo , we affirm. Randolph v. Rodgers , 170 F.3d 850, 856 (8th Cir. 1999) (standard of review).

I. The Decontamination Process.

Plaintiffs argue that Dakota County violated the ADA, the RA, and the MHRA by failing to provide interpreters when Plai ntiffs were decontaminated by the SOT on the night of September 6. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services , programs, or activities of a public entity.” 42 U.S.C. § 12132. As relevant here, the substantive standards of § 504 of the RA and the ADA are the same. See 42 U.S.C. § 12133; Gorman v. Bartch , 152 F.3d 907, 911- 12 (8th Cir. 1998). 2The parties agree that Plainti ffs are qualified individuals with a disability and that Dakota County is a public entity. Although the County was not responsible for the mercury contamination, the governmental effort to decontaminate the victims of that emergency was, w ithout question, a service to which the requirements of § 12132 applied. SeeRandolph , 170 F.3d at 858. C onsistent with the Supreme Court’s interpretation of the RA in Alexander v. Choate , 469 U.S. 287, 301 (1985), we construe Title II of the ADA as requiring that qualified persons with disabilities receive “meaningful access” to a public entity’s services, not merely “limited participation.” Randolph , 170 F.3d at 858. Depending on the circumstances, this may require the use of “auxiliary aids a nd services,” such as interpreters for the-4- hearing impaired. SeeMason v. Corr. Med. Servs., Inc. , 559 F.3d 880, 886 (8th Cir. 2009), applying 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104(2).

Plaintiff Marshall was interviewed by Rosemount police at the playground at 6:30 p.m. on September 6. He r son had played with the mercury, and the miscreant boys had poured mercury in her eight-year-old daughter Cassie’s hair. Marshall became contaminated when sh e comforted Cassie. She to ld the officers she was deaf and asked for an interpreter. The home of Plaintiffs Loyeand Gist became one of the most contaminated when the boys brought th e jars of mercury to the residence and spilled some. Loye and his son Cory touched the unknown substance. A police officer came to the residence and wrote “mercury” when Loyesaid he was deaf. Loye misunderstood the message and told Gist that someone had been molested.

Beginning at 11:00 p.m., each family id entified as needing decontamination entered the SOT’s tent (seque ntially, not all at once). On ce inside, they removed their clothes and jewelry and were sprayed and brush scrubbed w ith soap and water. They were then given suits or blankets to c over themselves and boarded a bus that took them to a hotel shelter the American Red Cross had arranged. As no interpreter was present, the SOT communicatedwith those who were deaf by gesturing, lip reading, writing, and limited sign langua ge. Marshall’s household included her two children, then-fiancé Jeff Beaman, a hearing person, and Stiles, who was visiting. This family was among the first to be decontaminatedbecause Cassie was the most seriously contaminated victim. Afte r decontamination, Marshall accompanied Cassie to a local hospital for testing and treatment. Plainti ffs Loye and Gist and their three-year-old son were the last to be decontaminated. All Plaintiffs were understandably confused and afraid throughout the harrowing decontamination process.

In granting summary judgment on this claim, the district court focused on the SOT’s services “during the emergency midnight decontamination.” The court concluded that the ADA did not require “delay in protecting the public or in3 We reject as meritless Plaintiffs’ additional contention that the district court decided an issue not fairly presented by the County’s motion for summary judgment.

4 The County argues that it is not liabl e under the ADA for the actions of the multi-agency SOT. Like the district c ourt, we need not reach that issue.

-5- ameliorating such a danger,” that it was not reasonable to require the emergency responders to come equipped with a full-tim e interpreter, and that Plaintiffs’ ability to follow directions and complete the succe ssful decontamination demonstrated that, despite the absence of inte rpreters, “[t]he communicati ons were effective.” Loye , 647 F. Supp. 2d at 1088-89.

On appeal, Plaintiffs argue that they fi rst asked the police for interpreters hours before the decontamination began, so th e district court erred because no delay in handling the emergency would have occurre d had interpreters been timely provided. 3 To consider this contention requires a mo re detailed look at the chronology of events on the night of September 6. Rosem ount Police responded to the report of a suspicious substance at 6:30 p.m. Police Sergeant Erickson and Assistant Fire Chief Haeg were the City’s incident commanders at the scene. They requested SOT assistance at 9:00 p.m. SOT members arrive d with their equipment at about 9:20 p.m. It is undisputed that (i) the SOT performed decontamination tasks assigned by the incident commanders, (ii) no SOT member had contact with contamination victims, including Plaintiffs, until they were brought to the SOT tent to be decontaminated, and (iii) Dakota County had no re sponsibilities (or even presence) on September 6 other than the SOT. 4

Given Dakota County’s lack of overall re sponsibility or involvement other than that of the SOT, Plaintiffs are forced to contend that Dakota County is liable for the failure of City of Rosemount police o fficers and incident commanders to have interpreters available when the SOT dec ontaminated the victims later that night. Plaintiffs cite no authority supporting this theory of joint governmental liability.5 Loye and Marshall requested an interpre ter after boarding the bus that would take them to the hotel shelter. But the decontamination had ended, and Dakota County was not responsible for providing the bus or the temporary shelter.

-6- Perhaps it would be at issue if Plaintiffs had not split their claims and sued the other responding public entities in state court. Bu t given the decision to split their claims, their liability-without-fault theory in this cas e raises, as the district court noted, the spectre of double damage recoveries. Ther efore, on this record, while we have little doubt that Plaintiffs had need of interpre ters when the emergency decontamination services began, they failed to prove that the County was responsible for interpreters not being present. The SOT’s services began when Plaintiffs were brought to the decontamination tent. Viewing the situation at that point in time, we agree with the district court that the m eans of communication SOT members then employed provided Plaintiffs with timely, mean ingful access to the emergenc y decontamination services. SeeMason , 559 F.3d at 887-88. Loye testifie d that he asked a fireman for an interpreter when he was brought to the decontamination tent. The fireman was presumably part of the SOT, but at that point , “waiting for an oral interpreter . . . [wa]s not a reasonable modification of [SOT] pro cedures given the exigent circumstances” of an emergency hazardous materials decontamination. Bircoll v. Miami-Dade County , 480 F.3d 1072, 1086 (11th Cir. 2007). 5

II. The Large-Group Meetings.

After the decontamination, Plaintiffs were provided temporary housing until their homes had been decontaminated by the Minnesota Pollution Control Agency. The Dakota County Department of Public Health assumed responsibility for arranging a series of large public meetings at which officials from the various responding agencies discussed the h ealth effects of exposure to mercury, the need to decontaminate homes and cars and to inves tigate whether children and pets had been exposed, the temporary housing arrangeme nts, and when their homes could be-7- reoccupied. When the Department learne d on September 7 that some victims were hearing impaired, efforts were made to haveinterpreters present at these meetings.

In support of its motion for summary judgment, the County presented evidence that an interpreter was present at all of th e six to eight large-group meetings held from September 7 through September 15. In response, Plaintiffs presented Vikki Marshall’s testimony that the County failed to notify her of the first meeting on September 7, that no interpre ter was present at two mee tings, and that communication at two other meetings was imperfect because the interpre ter spent time at individual discussions with Loye and Gist instead of interpreting the large-group discussion. The testimony of Loye and Gist wa s consistent with the County’s claim that an interpreter was provided at every large-group meeting.

Rejecting Plaintiffs’ contention that “an interpreter is mandated for every meeting,” the district court concluded that, considering the series of meetings as a whole, “plaintiffs received e ffective communication.” Loye , 647 F. Supp. 2d at 1090. The court noted that, on September 8, County officials obtained an interpreter for the large-group meeting and then held an additional ASL-interpreted private meeting at which deaf evacuees could ask questions. “Plaintiffs identify no information they missed nor any harm suffered as a result of any alleged failure to pr ovide interpreters.” Id. at 1091.

On appeal, Plaintiffs argue the district court erred when it disregarded the requirement in the Attorney General’s regulations that the County “ensure that communications with [Plaintiffs] are as effective as communications with others.” 28 C.F.R. § 35.160 (emphasis added). We di sagree that Title II of the ADA demands compliance with Plaintiffs’ literal reading of this regulation. The Supreme Court construed a similarly word ed regulation under § 504 of the RA as meaning that “benefits, and services, to be equally e ffective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons,-8- but must afford handicapped pe rsons equal opportunity to . . . gain the same benefit.” Therefore, the Court concluded, “Tenne ssee is not required to assure that its handicapped [program] users will be as healthy as its nonhandicapped users.” Alexander , 469 U.S. at 305-06. “Any interpretation of § 504,” the unanimous Court explained, “must . . . be responsive to two powerful but countervailing considerations -- the need to give effect to the statutory objectives and the desire to keep § 504 within manageable bounds.” Id. at 299.

In our view, the same principles appl y in construing Title II of the ADA and its implementing regulations. We agree withthe district court that Dakota County effectively communicated with Plaintiffs at the large-group meetings for the reasons the court explained. After the events of September 6, the prim ary services were to decontaminate the victims’ property, atte nd to their health care and related needs, provide temporary shelter, and assist them in moving back into their homes. Providing timely information about the risk s of mercury and the decontamination process was an important aspect of effec tive emergency response services. But there is a difference between providing information -- a service -- and the series of meetings at which information is provided. Plain tiffs confuse the two when they argue that Title II required that an ASL in terpreter must be present at every meeting. Therefore, the fact disputes Plaintiffs emphasize we re not material to the grant of summary judgment because the record establishes th ey had meaningful access to the services provided all evacuees. CompareRobertson v. Las Animas County Sheriff’s Dep’t
, 500 F.3d 1185, 1199 (10th Cir. 2007) (summary judgment denied because deaf detainee could not hear what was happening at his probable cause hearing); Aikins v. St. Helena Hosp. , 843 F. Supp. 1329, 1336 (N.D. Cal. 1994) (summary judgment denied because physician’s misunderstandi ng undercut defendant ’s allegation that communication with patient’s deaf spouse wa s effective). Here, even if at times delayed, the information communicated during the large-group meetings was not so time-sensitive that the delay denied Plaintiffs effective communication and meaningful access to the services being provided.-9- III. The Individual Family Meetings.

Along with arranging the large-group meetings, the Department of Public Health assigned experienced Public Health Nurse Greeley to provide housing, healthrelated, and other services on an indivi dual basis to hearing impaired evacuees, including Plaintiffs. Nurse Greeley met aboutten times with Loye and Gist. Greeley obtained a prescription drug and scheduled a doctor’s appointment for Loye, helped Loye and Gist move to temporary housi ng, advised when gr oup meetings would be held, provided a booklet and list of res ources for obtaining financial aid and transportation services, scheduled an appoi ntment to select a new carpet for their decontaminated home, and advised when th ey could return home. Greeley provided an ASL interpreter for at least two of the first three meetings. After that, Greeley’s detailed contemporaneous notes reflect th at less complex issues were discussed without an interpreter, using lipreading or writing, and the record confirms that she frequently communicated with Loye via email. The home of Loye and Gist was one of the last to be decontaminated; they returned on September 23.

Nurse Greeley met less often with Vikki Marshall, and when they did meet, Marshall’s then-fiancé Beaman, who could hear , was often present. Greeley met with Marshall and Beaman on Septem ber 8 and discussed Cassie’s medical status. The next morning, Greeley picked up Cassie’ s urine sample and delivered it to the hospital. Later that day, Marshall and Beaman returned to their home, one of the first to be decontaminated. After that, Greel ey met with or called Marshall or Beaman about five times, obtaining shampoo and pres cription medicine, making sure Cassie’s health tests were completed, advising what community services were available, and providing forms to obtain emergency funds fo r spill victims. Mars hall testified there was no interpreter present during these cont acts. Nurse Greeley testified that she communicated with Marshall via written notes or through Beaman.-10- The district court concluded that no reas onable jury could conclude that Nurse Greeley failed to communicate effectively with Loye, Gist, and Marshall at these individual meetings. With the exception of Cassie Marshall’s blood and urine tests, which were normal, the communications fo cused on housing, social services, and financial assistance, with Nurse Greeley serv ing as a helpful intermediary for services provided by other government agencies. At various times, Nurse Greeley communicated with Plaintiffs through in terpreters, lipreading, written messages, email, and Beaman. She also provided writte n instructions, written resource lists, and a TTY contact number. The topics discu ssed were not complex, and Plaintiffs’ responses and actions taken reflected that Nurse Greeley’s assistance was understood. 647 F. Supp. 2d at 1094-95.

On appeal, Plaintiffs argue that su mmary judgment was improper as to this aspect of their claims becau se the record demonstrates that they “could not fully communicate their questions and concerns” in the individual meetings with Nurse Greeley. But, as we have explained, th e legal standard is effective communication that results in meaningful access to govern ment services. There is no evidence that Plaintiffs failed to obtain any service b ecause Nurse Greeley’s advice or assistance was not understood, and no evidence Nurse Greeley ignored a specific request for more effective communication or refused a specific request for an ASL interpreter. SeeMason , 559 F.3d at 887; Rosen v. Montgomery County, Md. , 121 F.3d 154, 158 (4th Cir. 1997).

The personal items Greeley delivered, th e emails between Loye and Greeley, and Plaintiffs’ successful return to their decontaminated homes are strong evidence of effective communication, and Plaintiffs presented no evidence to the contrary. See Bircoll , 480 F.3d at 1086 (deaf person’s response to police instructions demonstrate effective communication). Indeed, because Nurse Greeley provided individualized assistance only to hearing-impaired ev acuees, there is no evidence that her communication with Plaintiffs was less effective than the Department of Public-11- Health’s communications with the large number of non-impaired evacuees. Plaintiffs complain they were unable to ask Nurse Gr eeley questions about the long-term effects of being exposed to mercury. But that wa s not Greeley’s area of expertise, and there is no evidence Plaintiffs we re unable to obtain that in formation from Nurse Greeley or from other sources.

The judgment of the district court is affirmed.

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