### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1469

L INDA R EED

, Plaintiff

‐ Appellant

,

v.

C OLUMBIA S T

. M ARY ’ S H OSPITAL

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 14

‐ CV

‐ 330

— J.P. Stadtmueller

, Judge

.

____________________

A RGUED S EPTEMBER 12, 2018

— D ECIDED F EBRUARY 8, 2019

____________________

Before E ASTERBROOK

, R OVNER

, and H AMILTON

, Circuit

Judges

.

H AMILTON

, Circuit Judge

. Plainti ff‐ appellant Linda Reed al

‐ leges that she su ff ered discrimination on the basis of her dis

‐

abilities while she was a patient at defendant

‐ appellee Colum

‐

bia St. Mary’s Hospital in March 2012. Among other things,

she contends that the hospital failed to accommodate her dis

‐

abilities by deliberately withholding from her a device she

used to speak and discriminated against her by pu tt ing her in2 No. 17

‐ 1469

a “seclusion” room to punish her. She brought claims under

Title III of the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12181, which governs public accommodations of

‐

fered by private entities, including hospitals, as well as Sec

‐

tion 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Wis

‐

consin Mental Health Act, Wis. Stat. § 51.61.

The district court granted the hospital’s motion for sum

‐

mary judgment, dismissing the federal claims with prejudice

and declining to exercise supplemental jurisdiction over the

remaining state

‐ law claims. Reed v. Columbia St. Mary’s Hospi

‐

tal, 236 F. Supp. 3d 1091 (E.D. Wis. 2017). The court held that

the hospital did not need to comply with Title III of the ADA

because it fell within the Act’s exemption for entities con

‐

trolled by religious organizations. Id. at 1103–04, citing 42

U.S.C. § 12187. The court also dismissed Reed’s Rehabilitation

Act claims, fi nding that the hospital’s alleged mistreatment of

Reed was not premised solely on Reed’s disability. Id. at 1105–

08.

We reverse. The hospital raised its religious exemption af

‐

fi rmative defense to the ADA claims for the fi rst time after

discovery, in its motion for summary judgment. We explain

below why we conclude it was an abuse of discretion to ex

‐

cuse the hospital’s failure to raise this a ffi rmative defense ear

‐

lier. We also reverse the dismissal of Reed’s Rehabilitation Act

claims on the merits because they depend on disputed facts.

I. Factual & Procedural Background

A. Reed’s Stay in the Hospital

Our statement of facts re fl ects our standard of review for

a grant of summary judgment. We cannot vouch for the ob

‐ jective truth of every detail. We review the facts and draw allNo. 17

‐ 1469 3

inferences from con fl icting evidence in the light reasonably

most favorable to Reed as the non

‐ moving party. Greengrass

v. International Monetary Systems Ltd.

, 776 F.3d 481, 485 (7th

Cir. 2015).

Reed su ff ers from several disabilities, including tardive

dyskinesia (“TD”), bipolar disorder, and post

‐ traumatic stress

disorder. TD is a neurological disorder that causes involun

‐

tary facial and limb movements and makes speaking di ffi cult.

Reed has been prescribed a portable communication device

called a Dynavox that she can use to generate speech.

Reed entered the hospital’s emergency department on

March 8, 2012. She reported suicidal thoughts. She was admit

‐

ted to the inpatient behavioral health unit and left on March

12. Reed alleges that during her four

‐ day stay at the hospital

she was discriminated against in multiple ways. She claims

that she was denied the use of her Dynavox; that hospital sta ff

a tt empted to give her medication she was allergic to; that she

was denied timely access to her medical records; that she was

denied the use of a telephone to call her case manager (about

whom the record reveals li tt le); that she was denied access to

a chaplain; and that she was physically escorted o ff the prem

‐

ises by two security guards. Notably, the hospital’s corporate

representative and nursing supervisor, William Fry, testi fi ed

in his deposition that the Dynavox was locked up outside

Reed’s room at night and that she had access to it during the

day only “as long as her behavior was appropriate.”

The most severe of Reed’s allegations is that on March 11,

hospital sta ff refused to give her the Dynavox and took her to

a seclusion room, where she was dropped on a ma tt ress on

the fl oor and later a tt empted suicide. Reed and the hospital

give di ff ering accounts of what exactly took place during this4 No. 17

‐ 1469

incident. Reed claims that she asked for her Dynavox, that

hospital sta ff refused to give it to her, that her TD

‐ related

movements caused her to spill co ff ee on herself and to fall to

the ground, and that patient

‐ care assistant Andrew Miller

grabbed her and put her in the seclusion room for about two

hours. Miller testi fi ed, on the other hand, that Reed was on

the ground in a hallway crying and he told her she needed to

get out of the hallway. When he was walking her back to her

room, he claims, she began to scream and he and nursing su

‐ pervisor Fry decided to take her to the seclusion room. On re

‐

view of a grant of summary judgment for the defendant, of

course, we must accept the plainti ff ’s version of events. Reed

was discharged the day after this incident. According to Reed,

her Dynavox and other possessions were thrown into a cab,

and she was pushed into it by a security guard and sent o ff

.

B. The District Court Proceedings

Reed fi led her fi rst complaint pro se in February 2014. The

district court dismissed that case without prejudice. The next

month, Reed fi led this new lawsuit, which the court construed

as raising claims under the ADA and the Rehabilitation Act.

The district court dismissed again, holding that the dismissal

of the prior suit had preclusive e ff ect and alternatively that

Reed failed to state a claim. Reed appealed pro se

. We vacated

and remanded because the fi rst case had been dismissed with

‐

out prejudice and thus did not preclude the second. Reed v.

Columbia St. Mary’s Hospital

, 782 F.3d 331, 335–36 (7th Cir.

2015). We also held that Reed stated viable claims under the

ADA and the Rehabilitation Act. Id. at 337.

On remand, the district court recruited counsel for Reed.

Her amended complaint asserted claims under the ADA for

intentional discrimination, denial of reasonable modi fi cation,No. 17

‐ 1469 5

and retaliation and intimidation; claims under the Rehabilita

‐

tion Act for intentional discrimination and denial of reasona

‐

ble accommodation; and patients’

‐ rights claims under Wis

‐

consin state law. The hospital fi led answers to both the origi

‐

nal complaint and the amended complaint. Each answer as

‐

serted several a ffi rmative defenses. Neither answer men

‐

tioned a religious exemption from the ADA. Discovery was

conducted from September 2015 to August 2016. In October

2016, the hospital moved for summary judgment, which the

district court granted.

II. Analysis

This appeal presents one procedural issue and a cluster of

substantive issues. The procedural issue is whether the dis

‐

trict court abused its discretion in allowing the hospital to

raise for the fi rst time on summary judgment the a ffi rmative

defense of the ADA’s Title III religious exemption. The sub

‐

stantive issues concern the merits of the Rehabilitation Act

claims.

A. The ADA Claims

1. The Religious Exemption Defense Under ADA Title III

Title III of the ADA prohibits disability discrimination by

“public accommodations,” including hospitals. See 42 U.S.C.

§ 12181(7). Title III provides: “No individual shall be discrim

‐

inated against on the basis of disability in the full and equal

enjoyment of the goods, services, facilities, privileges, ad

‐

vantages, or accommodations of any place of public accom

‐

modation.” 42 U.S.C. § 12182(a). It is unlawful to “fail[] to take

such steps as may be necessary to ensure that no individual

with a disability is excluded, denied services, segregated or

otherwise treated di ff erently than other individuals because6 No. 17

‐ 1469

of the absence of auxiliary aids and services,” unless the de

‐

fendant can show that such accommodation “would funda

‐ mentally alter the nature of the good, service, facility, privi

‐ lege, advantage, or accommodation being o ff ered or would

result in an undue burden.” § 12182(b)(2)(A)(iii). A physical

or mental impairment that “substantially limits one or more

major life activities,” including “speaking,” quali fi es as a dis

‐ ability under both the ADA and the Rehabilitation Act (dis

‐

cussed below). See 42 U.S.C. § 12102(1)(A), (2)(A); 29 U.S.C.

§ 705(20)(B); 34 C.F.R. § 104.3(j)(2)(ii); 45 C.F.R. § 84.3(j)(2)(ii).

Title III of the ADA applies generally to hospitals, but Title

III exempts from its requirements “religious organizations”

and “entities controlled by religious organizations, including

places of worship.” 42 U.S.C. § 12187. This exemption is an

a ffi rmative defense. A defendant invoking it must plead it in

the answer. See Fed. R. Civ. P. 8(c); Castro v. Chicago Housing

Authority

, 360 F.3d 721, 735 (7th Cir. 2004). Rule 8(c) applies to

“any avoidance or a ffi rmative defense,” and lists a number of

particular defenses that must be pleaded. The religious ex

‐ emption in Title III of the ADA is an a ffi rmative defense be

‐

cause it assumes the plainti ff can prove everything she must

to establish her claim but may still act to defeat her claim. 1

It makes sense for the defendant claiming the Title III reli

‐ gious exemption to bear the burden of pleading and proving

its religious control. We have said that a defense not listed in

Rule 8(c) is an a ffi rmative defense that must be pleaded if the

1 “An affirmative defense is one that admits the allegations in the com

‐ plaint, but avoids liability, in whole or in part, by new allegations of ex

‐

cuse, justification or other negating matters.” Divine v. Volunteers of Amer

‐

ica of Illinois

, 319 F. Supp. 3d 994, 1003 (N.D. Ill. 2018), quoting Riemer v.

Chase Bank USA, N.A

., 274 F.R.D. 637, 639 (N.D. Ill. 2011).No. 17

‐ 1469 7

defendant bears the burden of proof on the issue under state

law or if the defense does not controvert the plainti ff ’s proof.

Winforge, Inc. v. Coachmen Industries, Inc.

, 691 F.3d 856, 872 (7th

Cir. 2012). The religious exemption defense does not contro

‐

vert the plainti ff ’s proof. It also draws on facts ordinarily

within the knowledge and control of the defendant. See Gomez

v. Toledo

, 446 U.S. 635, 640–41 (1980) (quali fi ed immunity is

a ffi rmative defense under 42 U.S.C. § 1983; relevant facts are

peculiarly within knowledge and control of defendant);

Wright & Miller, Federal Practice & Procedure § 1271. An

ADA plainti ff should not need to spend the money to antici

‐

pate this defense without fair and timely notice that the de

‐

fendant intends to rely upon it.

2. Consequences of Failure to Plead a Defense

A defendant’s failure to plead an a ffi rmative defense may

result in a waiver of the defense if the defendant has relin

‐ quished it knowingly and intelligently, or forfeiture if the de

‐

fendant merely failed to preserve the defense by pleading it.

See Wood v. Milyard

, 566 U.S. 463, 470 & n.4 (2012). Some of

our opinions use the terms waiver and forfeiture interchange

‐ ably, but Wood shows that we need to pay a tt ention to the dif

‐

ference. Whether courts apply waiver or forfeiture in re

‐

sponse to a failure to plead, the purpose of the pleading re

‐ quirement for an a ffi rmative defense “is to avoid surprise and

undue prejudice to the plainti ff by providing her notice and

the opportunity to demonstrate why the defense should not

prevail.” Venters v. City of Delphi

, 123 F.3d 956, 967 (7th Cir.

1997).

We have explained, however, that “the rule that forfeits an

a ffi rmative defense not pleaded in the answer (or by an earlier

motion) is, we want to make clear, not to be applied rigidly.”8 No. 17

‐ 1469

Garofalo v. Village of Hazel Crest

, 754 F.3d 428, 436 (7th Cir.

2014), citing Ma tt hews v. Wisconsin Energy Corp., Inc.

, 642 F.3d

565, 570 (7th Cir. 2011). We will generally fi nd that the failure

to plead an a ffi rmative defense in the answer works a forfei

‐

ture “only if the plainti ff is harmed by the defendant’s delay

in asserting it.” Id. There are limits, though, and in exercising

their discretion in such ma tt ers, district courts must be alert

to the real and practical harms that can result from failures to

plead. We have explained that

the district court has the discretion to allow an

answer to be amended to assert an a ffi rmative

defense not raised at the outset. The pertinence

of a particular defense may only become appar

‐

ent after discovery, for example, in which case it

would be reasonable for the court to permit the

belated assertion of that defense. Nonetheless,

the defendant remains obligated to act in timely

fashion. Once the availability of an a ffi rmative

defense is reasonably apparent, the defendant

must alert the parties and the court to his intent

to pursue that defense. A defendant should not

be permi tt ed to “lie behind a log” and ambush

a plainti ff with an unexpected defense. The ap

‐ propriate thing for the defendant to do, of

course, is to promptly seek the court’s leave to

amend his answer. His failure to do [so] risks a

fi nding that he has waived the defense.

Venters

, 123 F.3d at 967–68 (internal citations and quotation

marks omi tt ed).

Pleadings shape the litigation, including the scope and

cost of discovery. Based on the claims and defenses raised inNo. 17

‐ 1469 9

the pleadings, the parties can discover information that is rel

‐

evant, not privileged, and proportional to the needs of the

case. See Fed. R. Civ. P. 26. Many e ffi ciencies are lost when

claims or defenses are left out of pleadings and a party then

a tt empts to assert them at later stages. At the same time, it is

not unusual for parties to discover new theories for claims or

defenses in the course of discovery. Timely motions to amend

pleadings for such newly discovered theories are appropriate

under Federal Rule of Civil Procedure 15(a).

We see these problems more often when plainti ff s try to

raise new theories or claims for the fi rst time in opposing sum

‐

mary judgment. The concerns about unfair surprise and prej

‐

udice with unpleaded a ffi rmative defenses are similar:

When a new argument is made in summary

judgment brie fi ng, the correct fi rst step is to con

‐

sider whether it changes the complaint’s factual

theory, or just the legal theories [the] plainti ff

has pursued so far. In the former situation, the

plainti ff may be a tt empting in e ff ect to amend

its complaint, and the district court has discre

‐

tion to deny the de facto amendment and to re

‐

fuse to consider the new factual claims. In the

la tt er, the court should consider the conse

‐

quences of allowing the plainti ff ’s new theory.

If it would, for example, cause unreasonable de

‐ lay, or make it more costly or di ffi cult to defend

the suit, the district court can and should hold

the plainti ff to his original theory.

BRC Rubber & Plastics, Inc. v. Cont’l Carbon Co.

, 900 F.3d 529,

540 (7th Cir. 2018) (citations and internal quotation marks10 No. 17

‐ 1469

omi tt ed), quoting Chessie Logistics Co. v. Krinos Holdings, Inc.

,

867 F.3d 852, 860 (7th Cir. 2017).

We routinely enforce this stricture against plainti ff s who

wait until summary

‐ judgment brie fi ng to raise a new claim,

despite the absence of an express pleading requirement, since

complaints need not identify legal theories. See, e.g., Anderson

v. Donahoe

, 699 F.3d 989, 997 (7th Cir. 2012) ( pro se plainti ff );

Whitaker v. Milwaukee County

, 772 F.3d 802, 808 (7th Cir. 2014);

Trade Finance Partners, LLC v. AAR Corp.

, 573 F.3d 401, 412 (7th

Cir. 2009); Conner v. Illinois Dep’t of Natural Resources

, 413 F.3d

675, 679–80 (7th Cir. 2005); Gri ffi n v. Po tt er

, 356 F.3d 824, 830

(7th Cir. 2004); Grayson v. O’Neill

, 308 F.3d 808, 817 (7th Cir.

2002); Whitaker v. T.J. Snow Co

., 151 F.3d 661, 663–64 (7th Cir.

1998); Auston v. Schubnell

, 116 F.3d 251, 255 (7th Cir. 1997);

Shanahan v. City of Chicago

, 82 F.3d 776, 781 (7th Cir. 1996);

Kostovetsky v. Ambit Energy Holdings, LLC

, 242 F. Supp. 3d 708,

718–19 (N.D. Ill. 2017) (reviewing Seventh Circuit case law).

In much the same way, late assertions of a ffi rmative de

‐

fenses—like the religious exemption to Title III of the ADA—

make litigation more costly and di ffi cult and can make it un

‐ fairly di ffi cult for a plainti ff to pursue her claims.

3. The District Court’s Ruling

The district court held that the hospital did not waive or

forfeit its religious exemption a ffi rmative defense. The court

acknowledged that the hospital raised the defense for the fi rst

time in its motion for summary judgment but explained that

since this defense is not expressly listed in Federal Rule of

Civil Procedure 8(c), “it is not clear that failure to assert it in

the answer waives it.” 236 F. Supp. 3d at 1101. That rationale

will not hold water here. Precedent o ff ers su ffi ciently clear

guidance on when defenses not enumerated in Rule 8(c) mustNo. 17

‐ 1469 11

be pleaded. See, e.g., Gomez v. Toledo

, 446 U.S. 635, 640–41

(1980); Winforge, Inc. v. Coachmen Industries, Inc.

, 691 F.3d 856,

872 (7th Cir. 2012); Sundstrand Corp. v. Standard Kollsman In

‐

dustries, Inc.

, 488 F.2d 807, 813 (7th Cir. 1973); Brunswick Leas

‐ ing Corp. v. Wisconsin Cent., Ltd.

, 136 F.3d 521, 530 (7th Cir.

1998). The statutory exemption here is based on facts in a de

‐

fendant’s control and clearly falls within the category of af

‐

fi rmative defenses.

The district court also held that Reed was not prejudiced

by the hospital’s delay in asserting this defense. For support,

the court relied on an exchange during the deposition of nurs

‐ ing supervisor William Fry in February 2016, six months be

‐

fore the close of discovery, to fi nd that Reed knew “for a sub

‐

stantial period that the religious exemption defense was a

possibility.” Reed

, 236 F. Supp. 3d at 1101. We respectfully dis

‐

agree. Here is the entire discussion from Fry’s deposition:

Q And so who

– what is your understanding of

the ownership of Columbia St. Mary’s Hospital

Milwaukee?

MR. FOLEY: Object to form and foundation.

THE WITNESS: I don’t really know the answer

to that. I don’t really understand

– I don’t know

the answer to that.

BY MS. BARNES: Who owns the organization?

MR. FOLEY: Object to form and foundation.

THE WITNESS: I’ll try to answer that. Ascen

‐

sion Healthcare is our parent sponsor of this

ministry.12 No. 17

‐ 1469

BY MS. BARNES: What does that mean, spon

‐

sor?

MR. FOLEY: Object to form.

THE WITNESS: Ascension Healthcare has mul

‐ tiple hospitals in multiple states across the

country. That is, again, our

– as far as I under

‐

stand it, our parent ownership structure.

BY MS. BARNES: Okay. And is Ascension a re

‐ ligious organization?

A Yes.

Q What type of religious organization?

A It’s a mission of the Roman Catholic Church.

Q A mission?

A Um

‐ hum.

Q So is it

– is it

–

A A ministry, I should have said. I ministry of

the Roman Catholic Church.

Q So is it

– does it follow the principles of the

Catholic church, when you say “ministry”?

MR. FOLEY: I’ll object to form and foundation.

I think this is far a fi eld of

–

THE WITNESS: Yeah, this is beyond my

knowledge and expertise.

MR. FOLEY:

– his knowledge. But if you can an

‐

swer, go ahead.No. 17

‐ 1469 13

THE WITNESS: As far as I know, yes. I guess I

don’t really understand the question.

BY MS. BARNES: What does it mean to be a

ministry, I guess? I’m trying to understand it as

well.

A Well, we’re a not for pro fi t in the ministry of

providing healthcare.

Fry Dep. at 13–15.

This brief exchange was with a witness who obviously did

not understand the issue or identify the exemption, let alone

try to assert the exemption. It is not comparable to a lawyer’s

statement that the party intends to assert a defense. The ex

‐ change did not put Reed on fair notice that the hospital would

be asserting the religious exemption and that she needed to

spend the time and money to conduct full

‐ bore discovery on

whether the hospital could satisfy the ADA’s religious ex

‐ emption.

The district court also thought that Reed knew when she

fi led suit that the hospital was at least nominally associated

with the Catholic faith. Nominal association told plainti ff and

tells us nothing about the availability of the religious exemp

‐

tion. The statutory test is “control.” 42 U.S.C. § 12187. Count

‐

less entities have names that are associated with religions but

are not subject to religious control.

Finally, the district court noted that Reed’s response to the

hospital’s motion for summary judgment showed that she

had studied the hospital’s corporate structure and governing

documents (or at least those submi tt ed by the hospital)

. We14 No. 17

‐ 1469

have a limited record before us on this issue. 2 The structure

appears to be as follows: the hospital’s sole corporate member

is Columbia St. Mary’s Inc. In turn, Columbia St. Mary’s Inc.

is “sponsored by” its two corporate members: Ascension

Health (a Catholic national health system) and Columbia

Health System, Inc. (a non

‐ sectarian community health sys

‐

tem). Ascension Health is a subsidiary of Ascension Health

Alliance, which is a subsidiary of Ascension Health Minis

‐

tries. The Congregation of Consecrated Life and Societies of

Apostolic Life of the Vatican conferred public juridic person

‐ ality on Ascension Health Ministries in June 2011. Ascension

Health Ministries’ governing documents state that it shall be

governed in accordance with canon law. Thus, the hospital is

subject to two lines of control: (1) a Catholic one (Ascension

Health Ministries —> Ascension Health Alliance —> Ascen

‐

sion Health —> Columbia St. Mary’s Inc. —> the hospital);

and (2) a non

‐ sectarian one (Columbia Health System —> Co

‐

lumbia St. Mary’s Inc. —> the hospital).

The hospital’s bylaws re fl ect these two lines of control:

they say that the hospital “shall be and remain a Catholic fa

‐ cility or institution” but also that the hospital will “respect the

nonsectarian traditions and values of Columbia Health Sys

‐

tem.” Similarly re fl ecting these two lines of control but revers

‐ ing the emphasis, the bylaws of Columbia St. Mary’s Inc. (the

hospital’s sole corporate member) say that it “shall not be a

Catholic facility or institution” but that it will not perform

2 The record is limited since this defense was sprung on Reed in the

motion for summary judgment. Most of the relevant evidence comes from

the documents the hospital chose to submit. Even those documents show

a complicated corporate legal structure and an ambiguous relationship

with the hospital’s Catholic affiliates.No. 17

‐ 1469 15

medical procedures inconsistent with Catholic ethical direc

‐

tives. Columbia St. Mary’s Inc.’s bylaws reserve certain pow

‐

ers to both Ascension Health and Columbia Health System. 3

Columbia St. Mary’s Inc.’s o ffi cers and board members “serve

ex o ffi cio” as the hospital’s o ffi cers and board members. Im

‐

portant for the issue of control, the board members are recom

‐

mended by Columbia St. Mary’s Inc.’s existing board for ap

‐ pointment by Ascension Health and are intended to “be

broadly representative of the communities served.” Relying

on this corporate structure as disclosed by the hospital in its

summary judgment materials, the district court determined

that the hospital was su ffi ciently controlled by the Catholic

Church as to fall within Title III’s religious exemption and to

make it immune to Reed’s ADA claims.

4. Abuse of Discretion

We express no opinion on whether, after full discovery

and fair litigation of the issue on a more complete record, the

hospital might fi t within the exemption for entities controlled

by religious organizations. Instead, we fi nd that the district

court abused its discretion by considering this a ffi rmative de

‐

fense at all.

Several factors point in this direction. First, the defendant

hospital has o ff ered no excuse or explanation for failing to

plead the defense in it answers or for raising the defense so

late. Without a credible excuse for the delay, the hospital’s late

invocation of the defense looks like a straight ambush of the

plainti ff when it was too late for her to put together a

3 We are told that these dual lines of control are also detailed in the

terms of an Affiliation Agreement, but that document has not been pro

‐

duced to Reed or included in the record.16 No. 17

‐ 1469

comprehensive rebu tt al. Second, the religious

‐ exemption de

‐

fense should not ordinarily depend on discovery from the

plainti ff

, as will often be the case with other a ffi rmative de

‐

fenses such as statutes of limitations, estoppels, waivers, and

others. Instead, the religious

‐ exemption defense will ordinar

‐ ily depend on facts within the knowledge and control of the

defendant itself. Third, the defendant did not deploy this de

‐

fense until after discovery had closed, meaning both parties

had already invested a good deal of time and money in the

case on the legitimate expectation that they knew what the is

‐

sues were. Allowing a last

‐ minute defense that introduces

such new factual and legal issues after discovery has closed

raises the costs of litigation and allows the party that was at

least negligent in failing to plead its defense to take unfair ad

‐

vantage of its opposing party. Fourth, the district court’s ra

‐

tionale for allowing the defense to be raised so late simply

does not withstand scrutiny. In this case, a few facts relevant

to this potential a ffi rmative defense came up brie fl y in one

deposition. As we explained above, that cannot be reasonably

treated as fair notice that the hospital would actually assert

the defense and that the plainti ff would need to spend the

time and money needed to meet that defense. The plainti ff

was entitled to rely on Rule 8(c) and the hospital’s silence in

its pleadings.

The situation here is similar to that in Venters v. City of Del

‐ phi

, where we concluded that the defendants waived their

statute of limitations a ffi rmative defense. 123 F.3d 956, 967–69

(7th Cir. 1997). There, the defendants failed to include the de

‐

fense in their answers to the original and amended com

‐ plaints. We could “discern no justi fi cation for the delay” when

they asserted the defense for the fi rst time in their reply mem

‐

orandum in support of their motion for summary judgment.No. 17

‐ 1469 17

Id. at 968. While a di ff erence here is that Reed was at least

given notice of the defense in the motion for summary judg

‐

ment itself and could a tt empt to respond, she was still at a

serious disadvantage. That notice came after the parties had

completed discovery. As in Venters

, we “cannot overlook the

failure to comply with Rule 8(c) in this context. Intentionally

or not, [plainti ff ] was bushwacked.” Id. at 969. Put simply, “it

was not [plainti ff ’s] obligation to raise the defense, and if Rule

8(c) is not to become a nullity, we must not countenance at

‐

tempts to invoke such defenses at the eleventh hour, without

excuse and without adequate notice to the plainti ff .” Id. 4

Finally, the prejudice to Reed from the delayed assertion

of the defense is especially acute here because the relevant law

and facts simply are not clear. The ADA does not de fi ne what

it means to be considered a “religious organization” or to be

“controlled by a religious organization.” See 42 U.S.C. §

12187. To our knowledge, no federal appellate court has yet

construed this religious exemption. Several district courts

have—including the veteran judge who decided this case.

See Rose v. Cahee

, 727 F. Supp. 2d 728, 747 (E.D. Wis. 2010). 5

4 In contrast, we held that a district court did not abuse its discretion

in Robinson v. Sappington when it allowed the defendants to amend their

pleadings at summary judgment to add affirmative defenses. 351 F.3d 317,

332–33 (7th Cir. 2003). There, the record showed that the plaintiff had suf

‐

ficient notice that the defendants might pursue the defenses because de

‐

fense counsel had explored them in detail during discovery. Id. Further,

the plaintiff did not suggest she was prejudiced in any way by the late

amendment. Id.

5 In Rose

, the court applied the religious exemption where a Roman

Catholic institute sponsored a healthcare corporation and occupied a pri

‐

mary role in the corporation’s corporate governance structure, the insti

‐

tute members made up the entirety of one class of corporate membership,18 No. 17

‐ 1469

These district court decisions show that the issue can be com

‐ plex, both factually and legally. These decisions have cited

and relied on the following Department of Justice interpreta

‐

tion of the religious exemption:

The ADA’s exemption of religious organiza

‐

tions and religious entities controlled by reli

‐ gious organizations is very broad, encompass

‐ ing a wide variety of situations. Religious or

‐ ganizations and entities controlled by religious

organizations have no obligations under the

ADA. Even when a religious organization car

‐

ries out activities that would otherwise make it

a public accommodation, the religious organi

‐

zation is exempt from ADA coverage. Thus, if a

church itself operates a day care center, a

and the institute’s class members had the sole authority to amend or re

‐ peal the corporation’s articles of incorporation and bylaws. 727 F. Supp.

2d at 747

. As for the other district court cases applying the exemption,

Reed correctly points out that in none was the defense raised late, and in

all there was greater evidence of religious control. See Cole v. Saint Francis

Medical Ctr.

, No. 1:15

‐ CV

‐ 98(ACL), 2016 WL 7474988, at *4

‐ 6 (E.D. Mo.

Dec. 29, 2016) (exemption was “properly raised by Defendant as an affirm

‐

ative defense” and hospital was “under the jurisdiction of the Bishop of

the Roman Catholic Dioceses[.]”); Marshall v. Sisters of the Holy Family of

Nazareth

, 399 F. Supp. 2d 597, 606 (E.D. Pa. 2005) (school “solely operated

and controlled by” order of nuns); White v. Denver Seminary

, 157 F. Supp.

2d 1171, 1173–74 (D. Colo. 2001) (seminary was founded by Baptist asso

‐

ciation and employees were required to be active Christians). By contrast,

in Sloan v. Community Christian Day School, LLC

, a Christian school was

found to not be exempt since the school was not owned, affiliated with, or

financially supported by any recognized religious group and was instead

owned by two individuals who were not ministers. No. 3–15–0551, 2015

WL 10437824, at * 3, (M.D. Tenn. Dec. 11, 2015).No. 17

‐ 1469 19

nursing home, a private school, or a diocesan

school system, the operations of the center,

home, school, or schools would not be subject to

the requirements of the ADA or this part. The

religious entity would not lose its exemption

merely because the services provided were

open to the general public. The test is whether

the church or other religious organization oper

‐

ates the public accommodation, not which indi

‐

viduals receive the public accommodation ʹ s ser

‐

vices.

Religious entities that are controlled by reli

‐ gious organizations are also exempt from the

ADA’s requirements. Many religious organiza

‐

tions in the United States use lay boards and

other secular or corporate mechanisms to oper

‐

ate schools and an array of social services. The

use of a lay board or other mechanism does not

itself remove the ADA’s religious exemption.

Thus, a parochial school, having religious doc

‐

trine in its curriculum and sponsored by a reli

‐ gious order, could be exempt either as a reli

‐ gious organization or as an entity controlled by

a religious organization, even if it has a lay

board. The test remains a factual one

– whether the

church or other religious organization controls the

operations of the school or of the service or whether

the school or service is itself a religious organization.

28 C.F.R. ch. 1., pt. 36, App’x C (emphasis added).

For this appeal, the critical points are that the law govern

‐ ing the hospital’s a ffi rmative defense is still highly contestable20 No. 17

‐ 1469

and its application may well depend on a host of facts that

would need to be explored in some depth. Before summary

judgment brie fi ng, plainti ff Reed had no notice that she

needed to prepare to meet the defense.

We have considered the possibility of a response less dras

‐

tic than treating the hospital’s religious

‐ exemption defense as

forfeited. One possibility would be to allow the parties to pur

‐

sue further discovery on that issue and to have the hospital

pay for plainti ff ’s reasonable costs and a tt orney fees for that

process. In this case, however, the hospital has o ff ered no

credible excuse for its delay, and the normal rule is forfeiture

of unpleaded defenses. The remedy of reopening discovery

would also impose additional delay on Reed. We see no miti

‐ gating factors here that would favor anything other than en

‐

forcement of Rule 8(c) as wri tt en and treating the defense as

forfeited. We therefore reverse summary judgment for the

hospital on the ADA claims.

B

. Rehabilitation Act Claims

1. Legal Standard

We now turn to the merits of Reed’s Rehabilitation Act

claims. Section 504 of the Rehabilitation Act provides: “No

otherwise quali fi ed individual with a disability

... shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the bene fi ts of, or be subjected to

discrimination under any program or activity receiving Fed

‐

eral fi nancial assistance[.]” 29 U.S.C. § 794(a). Four elements

must be satis fi ed to establish a violation of Section 504: (1) the

plainti ff must be a handicapped individual as de fi ned by the

Act; (2) the plainti ff must be “otherwise quali fi ed” for partic

‐ ipation in the program; (3) the program must receive federalNo. 17

‐ 1469 21

fi nancial assistance; and (4) the plainti ff must have been “de

‐

nied the bene fi ts of the program solely because of his handi

‐ cap.” See Mallet v. Wisconsin Div. of Vocational Rehabilitation

,

130 F.3d 1245, 1257 (7th Cir. 1997). The hospital contests only

this fourth element of sole cause. The ADA and the Rehabili

‐

tation Act are otherwise very similar, but the Rehabilitation

Act prohibits discrimination only if it is “solely by reason of”

a person’s disability. The ADA permits mixed

‐ motive claims.

See Whitaker v. Wisconsin Dep’t of Health Servs.

, 849 F.3d 681,

684 (7th Cir. 2017).

A plainti ff suing under the Rehabilitation Act can assert

that she was intentionally discriminated against or that the

defendant failed to a ff ord her a reasonable accommodation

for her disability. The Rehabilitation Act does not contain an

explicit accommodation requirement, but the Supreme Court

has located a duty to accommodate in the statute generally.

We have wri tt en that in Alexander v. Choate

, 469 U.S. 287

(1985),

the Court explained that “‘a refusal to modify

an existing program might become unreasona

‐

ble and discriminatory.’” Id. at 300 (quoting

Southeastern Cmty. Coll. v. Davis

, 442 U.S. 397,

413 (1979)). The Rehabilitation Act’s promise of

“meaningful access” to state bene fi ts, according

to the Court, means that “reasonable accommo

‐

dations in the grantee’s program or bene fi t may

have to be made.” Id. at 301.

Wisconsin Community Services, Inc. v. City of Milwaukee

, 465

F.3d 737, 747 (7th Cir. 2006). We explained further:22 No. 17

‐ 1469

Following Choate

, several courts of appeals have

adopted the view that the Rehabilitation Act re

‐ quires public entities to modify federally as

‐

sisted programs if such a modi fi cation is neces

‐

sary to ensure that the disabled have equal ac

‐

cess to the bene fi ts of that program. See

, e.g

.,

Henrie tt a D. v. Bloomberg

, 331 F.3d 261, 274–75

(2d Cir. 2003). These circuits, including ours,

also follow the corollary principle implicit in the

Choate decision that the Rehabilitation Act helps

disabled individuals obtain access to bene fi ts

only when they would have di ffi culty obtaining

those bene fi ts “by reason of” their disabilities,

and not because of some quality that they share

generally with the public.

Id. at 748.

2. Analysis of the Rehabilitation Act Claims

We review de novo the district court’s grant of summary

judgment on the merits. Whitaker

, 849 F.3d at 684. Summary

judgment is proper when the moving party shows that there

is no genuine dispute as to any material fact and that it is en

‐

titled to judgment as a ma tt er of law. Fed. R. Civ. P. 56(a).

We reverse the dismissal of Reed’s intentional discrimina

‐

tion claim, which is based only on the seclusion

‐ room inci

‐

dent. The district court determined that the undisputed facts

show that the “seclusion incident” was motivated at least in

part by factors other than Reed’s disability. The court stated

that Reed “admits that she spilled her co ff ee and thereafter

fell to the fl oor screaming. She further concedes that MillerNo. 17

‐ 1469 23

told her that she could not remain on the fl oor in the middle

of the hallway. (Docket # 55 ¶ 43).” Reed

, 236 F. Supp. at 1106.

The district court either misconstrued or exaggerated

Reed’s concessions. Reed has not conceded any of the reasons

Miller cited for taking her to the seclusion room. The district

court did not include a record citation for its assertion that

Reed admi tt ed she fell to the fl oor “screaming.” We have not

seen such an admission in the record. Reed admits that she

spilled co ff ee and was on the fl oor of the hallway. She specif

‐ ically denies she was screaming. See Dkt. 55, ¶¶ 38–45, citing

Reed A ffi davit, Ex. A, Dkt. 55

‐ 26. According to the district

court, this disturbance at least partially motivated the hospital

sta ff to put her in seclusion.

The undisputed facts show that Reed spilled co ff ee on her

‐

self and was on the fl oor of the hallway. We agree with the

district court that Miller was responding to this situation (and

not solely to Reed’s disabilities) when he picked her up o ff the

fl oor. So far, so good. But Miller himself testi fi ed that, at that

point, he started to take Reed back to her own room (not the

seclusion room). It was only during the walk to her room that,

because of her screaming, the decision was made to take her

to the seclusion room. Thus, a jury could fi nd that nothing

Reed has conceded (spilling co ff ee and lying on the fl oor) led

Miller to take her to the seclusion room. Spilling the co ff ee

and lying on the fl oor prompted Miller only to take Reed back

to her own room. It was the action that Reed speci fi cally de

‐

nies (screaming during the walk) that Miller says led him and

Fry to take Reed to the seclusion room. Reed has not conceded

that she did anything disruptive during the walk to her room,

when hospital sta ff decided to take her to the seclusion room.

The material facts that led to her being placed in seclusion are24 No. 17

‐ 1469

disputed. Crediting Reed’s version of the event, a reasonable

jury could fi nd that the hospital intentionally discriminated

against Reed solely on the basis of her disability. 6

We also reverse the dismissal of Reed’s reasonable accom

‐

modation claim. This claim is based on all of the allegations

Reed asserts in her complaint (seclusion

‐ room incident; with

‐ holding Dynavox; security escort o ff the premises; and denial

of requests to use telephone, to see a chaplain, and to see med

‐

ical records). While medical professionals certainly are enti

‐

tled to discretion in managing their patients, the hospital has

not argued that it withheld the Dynavox in the exercise of pro

‐

fessional judgment to treat Reed’s mental illness. Withhold

‐ ing the Dynavox in particular may support a viable failure

‐ to

‐

6 The parties have not addressed another issue that may arise on re

‐

mand. The Rehabilitation Act and the Americans with Disabilities Act do

not create a remedy for medical malpractice. See Grzan v. Charter Hosp.

,

104 F.3d 116, 122–23 (7th Cir. 1997), abrogated on other grounds as stated

in Amundson v. Wisc. Dep’t of Health Svcs.

, 721 F.3d 871, 874 (7th Cir. 2013);

Bryant v. Madigan

, 84 F.3d 246, 249 (7th Cir. 1996) (prisoner’s claim); ac

‐

cord, e.g., McGugan v. Aldana

‐ Bernier

, 752 F.3d 224, 231–32 (2d Cir. 2014);

Burger v. Bloomberg

, 418 F.3d 882, 883 (8th Cir. 2005); Schiavo ex rel. Schindler

v. Schiavo

, 403 F.3d 1289, 1294 (11th Cir. 2005); Fitzgerald v. Corrections Corp.

of America

, 403 F.3d 1134, 1144 (10th Cir. 2005). As the Second Circuit ex

‐ plained in McGugan

, the term “discrimination” can have a benign (and

perfectly lawful) sense, in which a health care provider makes a discrimi

‐ nating professional judgment about the type of treatment to provide to a

patient, but can also have a pejorative sense that describes actions taken

based on irrelevant criteria under the influence of irrational bias. See 752

F.3d at 231–32, comparing United States v. University Hosp.

, 729 F.2d 144,

156 (2d Cir. 1984), and Green v. City of New York

, 465 F.3d 65, 78 (2d Cir.

2006). In this appeal, the hospital has not argued that it withheld Reed’s

Dynavox from her as a benign form of discrimination, i.e., as an exercise

of medical judgment for her appropriate treatment.No. 17

‐ 1469 25

accommodate claim under the Rehabilitation Act, subject to

the considerations discussed above in note 6.

The district court’s grant of summary judgment in favor of

the hospital is REVERSED and the case is REMANDED for

proceedings consistent with this opinion. On remand, Circuit

Rule 36 shall apply.