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Viera v. City of New York

United States District Court, S.D. New York

July 20, 2017

JOSIY VIERA, Plaintiff,
v.
THE CITY OF NEW YORK and RICHMOND UNIVERSITY MEDICAL CENTER, Defendants.

          MEMORANDUM OPINION & ORDER

          PAUL G. GARDEPHE, U.S.D.J.

         On July 13, 2015, Josiy Viera - who is deaf- and James Gosselin, her fiance and live-in boyfriend, brought this action against Richmond University Medical Center ("RUMC") and the City of New York (the "City") alleging that Defendants' failure to provide an American Sign Language ("ASL") interpreter to Viera in connection with (1) her December 1, 2014 visit to RUMC, and (2) New York City Administration for Children's Services ("ACS") home visits, violates the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq.; and the New York City Human Rights Law, N.Y. Admin. Code §§ 8-101 et seq. (Cmplt. (Dkt. No. 1) ¶¶ 6, 58-114)[1] The Complaint seeks money damages.[2] (Id. ¶ 6)

         On March 15, 2017, this Court dismissed Gosselin's claims with prejudice pursuant to Fed.R.Civ.P. 41(a)(2).[3] (Order (Dkt. No. 116))

         RUMC has moved for summary judgment on Viera's deliberate indifference claim against it. (RUMC Br. (Dkt. No. 81) at 5, 23-24)

         Viera has moved for partial summary judgment on her claims against the City, contending that this Court should find as a matter of law that ACS employees acted with deliberate indifference on each occasion that they conducted a home visit without an ASL interpreter. (Pltf. Br. (Dkt. No. 76) at 6, 16-17)

         The City has cross-moved for partial summary judgment as to ACS's December 2, 2014 home visit, contending that the evidence demonstrates that ACS personnel did not act with deliberate indifference on that occasion. (City Br. (Dkt. No. 93) at 6, 28-29)

         BACKGROUND[4]

         I. FACTS

         A. Viera's Communication Abilities

         Viera is a "profoundly deaf individual" who communicates primarily in ASL. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶¶ 2-3) In connection with the parties' motions, Viera contends that she "does not read English comfortably and has trouble comprehending more than simple information"; that "[s]he reads between a first and second grade level and has a third grade vocabulary"; "is not proficient in English"; and "comprehends ASL best." (Id. ¶ 5) (citations omitted) At her deposition, however, Viera testified that she is able to read and write English, and that she communicates with her fiance, James Gosselin, through text messages:

Q. When you met Mr. Gosselin, how did you communicate with him?
A. We texted each other.
Q. Are you able to read and write in English?
A. Yes, I can.
Q. When you text Mr. Gosselin, is that in English?
A. Yes.

(June 27, 2016 Weiderhorn Decl., Ex. B (Viera Dep.) (Dkt. No. 78-2) at 17:20-18:3)

         Gosselin is not fluent in ASL, and he relies on texting and writing to supplement his signing communication with Viera. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 15) At the time of the events at issue here, Gosselin's communications with Viera were evenly split between signing and texting. (Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶ 493)

         Charito Pacheco, Viera's stepmother (City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 16), testified that she communicates with Viera through a "sign language [she] and [Viera] made [up], " or through sign language that she learned from a sign language book. (June 27, 2016 Wiederhorn Decl., Ex. E (Pacheco Dep.) (Dkt. No. 78-5) at 10:11-21, 11:16-18)

         Dr. Judy Shepard Kegl - a certified ASL interpreter - assessed Viera's communication needs and abilities in connection with this litigation. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 18 (citing June 27, 2016 Wiederhorn Deck, Ex. S (Kegl Report) (Dkt. No. 78-18))) Kegl testified that Viera needs a sign language interpreter in order to communicate. (June 27, 2016 Wiederhorn Decl., Ex. A (Kegl Dep.) (Dkt. No. 78-1) at 80:20-22) Kegl also assessed Gosselin's sign language skills, and concluded that "he doesn't really know that much" ASL. (Id. at 100:25-101:3, 206:12-19, 208:16-17) Kegl observed Viera's sign language communication with Gosselin, and noted that Viera simplified and slowed down her signing when communicating with Gosselin. (RUMC R. 56.1 Resp. (Dkt. No. 91) ¶ 334) As to Viera's ability to understand and communicate in written English, Kegl testified that

if you were writing back and forth with Ms. Viera [in English], you would have to take into account the fact that there are certain things about her writing that are going to be atypical. [] [Y]ou can't just write in English and assume she's going to understand it all. In fact, [] sometimes you're going to write certain things and she may understand exactly the opposite.

(June 27, 2016 Wiederhorn Deck, Ex. A (Kegl. Dep.) (Dkt. No. 78-1) at 113:12-18)

         B. Viera and Gosselin's December 1, 2014 Visit to RUMC

         In December 2014, Josiy Viera and James Gosselin lived together with their seven children in Staten Island, New York.[5] (Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶ 383; see June 27, 2016 Wiederhorn Decl., Ex. B (Viera Dep.) (Dkt. No. 78-2) at 49:1-5) On December 1, 2014, at about 9:00 p.m., Gosselin fell while holding their four-month-old son, A.G. (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶ 253) After the fall, "A.G.'s leg appeared limp and made a crackling noise" (id. ¶ 257), so the couple took A.G. to RUMC for treatment. (Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶ 384) Viera drove A.G. and Gosselin to the hospital - which is located at 355 Bard Avenue, Staten Island, New York - between 10:00 and 10:30 p.m. (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶ 258; Cmplt. (Dkt. No. 1) ¶ 11)

         Marilyn Mora - an RUMC triage nurse - completed her assessment of A.G. at 10:59 p.m. (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶ 271) Mora's notes indicate that, "as per dad, he fell on baby, brother took dad off baby, baby cried instantly, baby continues to cry." (Id. ¶ 261; see Lenza Deck, Ex. 16 (RUMC Physician Notes) (Dkt. No. 82-15) at 10; August 10, 2016 Wiederhorn Decl., Ex. V (Mora Dep.) (Dkt. No. 87-3) at 43:4-21) Mora scored A.G.'s pain level as an 8 out of 10, and assigned him a priority level of 2. (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶¶ 266-67) "A Level 2 trauma is a medical emergency involving a high probability of imminent or life threatening deterioration in a patient's medical condition." (Lenza Decl., Ex. 3 (Kaufman Decl.) (Dkt. No. 82-3) ¶ 15) Once triage was completed, Gosselin informed Mora that Viera is deaf, and Mora passed on that information to Esther Rose, the emergency department nurse. (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶¶ 272-73)

         It is undisputed that Rose did not request an ASL interpreter for Viera (id. ¶ 314), and that RUMC never provided an ASL interpreter to Viera during the four-and-a-half hours Viera spent at RUMC that evening. (RUMC R. 56.1 Resp. (Dkt. No. 91) ¶ 369) Nurse Rose has submitted a declaration stating, however, that "neither Mr. Gosselin nor Ms. Viera requested an ASL interpreter, " and there is no contrary admissible evidence.[6] (Lenza Decl., Ex. 18 (Rose Decl.) (Dkt. No. 82-17) ¶¶ 7-8) Rose observed Gosselin "communicate with Ms. Viera by concurrently speaking to her and moving his hands. I understood Mr. Gosselin was repeating to Ms. Viera what the hospital staff said to him because I heard Mr. Gosselin repeat the information aloud when he communicated with Ms. Viera."[7] (Id. ¶¶ 6-7) Based on the interaction between Gosselin and Viera, Nurse Rose concluded that no sign language interpreter was necessary:

My observation of Ms. Viera's non-verbal communication and demeanor did not indicate that she did not understand the medical care involving A.G. I did not request an interpreter for Ms. Viera as I believed she understood the hospital staff's communications through Mr. Gosselin based on her non-verbal communication and demeanor. Ms. Viera appeared less anxious after receiving communication from Mr. Gosselin.

(Id. ¶10)

         The notes of an RUMC emergency room physician indicate that A.G. was "seen immediately upon arrival fat RUMC] because of [a] high probability of imminent or life threatening deterioration in [his] condition." (Lenza Decl., Ex. 16 (RUMC Physician Notes) (Dkt. No. 82-15) at 9) Rose's notes state that the "infant cries loudly in discomfort when touched/re-positioned, " and that Gosselin, Viera, and A.G.'s older siblings were present in the treatment room. (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶ 275) Dr. Matthew Kaufman, an RUMC emergency room physician and Associate Director of the RUMC Emergency Department, examined A.G. at about 11:19 p.m. (id. ¶¶ 275, 277), and at 11:27 p.m., a Level 2 Pediatric Trauma code was initiated, which mobilized trauma surgeons to evaluate A.G.[8] (id. ¶¶ 278-79) At 11:30 p.m., Rose's notes reflect that A.G. was still crying loudly, that Viera was trying to console the baby, and that Gosselin was "also present & signs to mother to keep her informed of status." (Id. ¶ 282) At this same time, Gosselin executed consents for treatment of both himself and A.G. (Id. ¶ 284)

         A chest x-ray and leg x-ray were performed on A.G. between 11:38 p.m. and 12:16 a.m., and the leg x-ray revealed that A.G. 's leg was fractured. (Id. ¶¶ 286-87; see Lenza Decl., Ex. 16 (RUMC Nurse Notes) (Dkt. No. 82-15) at 13) An orthopedic attending physician informed Dr. Kaufman that A.G.'s leg fracture could not be treated at RUMC because A.G. was an infant. Dr. Kaufman informed Gosselin that A.G.'s leg was broken, that RUMC could not treat him, and that it would be necessary to transfer him to another hospital for treatment.[9] (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶¶ 289-90; Lenza Decl., Ex. 3 (Kaufman Decl.) (Dkt. No. 82-3) ¶¶ 24-25) It is undisputed that Gosselin relayed all of this information to Viera by typing it into Notepad on his cell phone.[10] (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶ 291-92) Viera has not argued, or proffered evidence specifically demonstrating, that she did not understand what Gosselin typed into his phone and showed to her.[11] Nor has she argued, or proffered evidence, that she told or indicated in any fashion to RUMC personnel that she did not understand what Gosselin had typed into his phone and shown to her.

         In addition to the communication through Notepad, Dr. Kaufman observed Viera signing to Gosselin, and Gosselin signing to her after Dr. Kaufman relayed information about A.G.'s condition to Gosselin. Dr. Kaufman did not sign to Viera, and he does not understand sign language. But based on the circumstances, he concluded that Gosselin was signing to Viera what Dr. Kaufman had reported to Gosselin about A.G.'s condition. (Lenza Decl, Ex. 3 (Kaufman Decl.) (Dkt. No. 82-3) ¶¶ 26-27; August 10, 2016 Wiederhorn Decl, Ex. X (Kaufman Dep.) (Dkt. No. 87-5) at 82:5-18) For her part, Viera concedes that she communicated with Gosselin at RUMC "about how the baby was doing and he was doing okay." Viera "do[esn'f] remember the details, " however. (June 27, 2016 Wiederhorn Deck, Ex. B (Viera Dep.) (Dkt. No. 78-2) at 80:21-22)

         It is also undisputed that Dr. Kaufman held up an x-ray of A.G.'s leg to the light, and that Viera observed the x-ray showing the fracture in A.G.'s leg. Gosselin explained to Viera that A.G. had a broken leg, and would be transferred to a different hospital for treatment, because "RUMC could not take care of A.G." (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶¶ 291-93) After viewing the x-ray, Viera "noticed" that "[t]he leg bone . . . looked like it was disconnected, " and she signed "Wow" to Gosselin." (Id. ¶ 294; June 27, 2016 Wiederhorn Deck, Ex. B (Viera Dep.) (Dkt. No. 78-2) at 73:5)

         Consistent with this undisputed interaction between Viera and Gosselin, Dr. Kaufman testified that Viera was not a passive observer of events in the exam room: "[B]ased on my observation of her non-verbal reactions ... [I] believe[d] that she understood A.G.'s leg was broken and [he] needed to be transferred to another hospital for treatment." (Lenza Decl., Ex. 3 (Kaufman Decl.) (Dkt. No. 82-3) ¶ 28) Dr. Kaufman further testified - based on his observation of her non-verbal conduct - that Viera "was very active. I mean, she was, she was not sitting there not interacting. She was very active and aware and involved in the situation. . . . [S]he was very involved in the next steps in the decision-making process, and she was not a passive observer of what was happening. She was very concerned about her son and very ... very interested in what the plan was." (August 10, 2016 Wiederhorn Decl., Ex. X (Kaufman Dep.) (Dkt. No. 87-5) at 82:15-83:3)

         At no point during Dr. Kaufman's interactions with Viera and Gosselin did either request an ASL interpreter. (Lenza Decl., Ex. 3 (Kaufman Decl.) (Dkt. No. 82-3) ¶ 34) Moreover, there is no evidence that Gosselin or Viera ever asked any RUMC employee for a sign language interpreter during the entire four and a half hours they were at RUMC on December 1-2, 2014.

         It took only a few minutes for Dr. Kaufman to explain to Gosselin and Viera that A.G. had a broken leg and would need to be transferred to another hospital. (Id. ¶ 29) Indeed, Dr. Kaufman billed only 35 minutes of "total critical care time" to his treatment of A.G.[12](August 10, 2016 Wiederhorn Deck, Ex. X (Kaufman Dep.) (Dkt. No. 87-5) at 83:10-13)

         At 3:19 a.m. on December 2, 2014, A.G. was transferred from RUMC to New York Presbyterian-Weill Cornell Medical Center ("Weill Cornell"). (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶ 328)

         On December 2, 2014, an RUMC employee reported A.G.'s injury to the New York Statewide Central Register of Child Abuse and Maltreatment as a potential case of child abuse. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 391)

         1. RUMC Policy Concerning the Provision of Sign Language Interpreters

         RUMC does not maintain ASL interpreters on staff. Instead, it contracts with ASL interpreters to provide services on demand. (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶ 222) RUMC's "policy and practice" is to "provide an onsite interpreter when a deaf or hard of hearing patient or companion requests an onsite interpreter." (Id. ¶ 231) Although RUMC asserts that signs are posted throughout the hospital stating that sign language interpreters are available (id. ¶ 234), Mora testified that she could not recall whether any such signs are posted. (August 10, 2016 Wiederhorn Deck, Ex. V (Mora Dep.) (Dkt. No. 87-3) at 57:5-9)

         RUMC also claims that it provides ongoing ADA compliance training to its staff, and that this training includes information concerning available language services, such as ASL interpreters for deaf or hard of hearing patients or companions. (Pltf. R. 56.1 Counterstatement (Dkt. No. 88) ¶ 235) Kaufman and Rose testified, however, that they do not recall having received such training. (August 10, 2016 Wiederhorn Deck, Ex. X (Kaufman Dep.) (Dkt. No. 87-5) at 21:7-11; August 10, 2016 Wiederhorn Deck, Ex. U (Rose Dep.) (Dkt. No. 87-2) at 149:16-25)

         According to Dr. Kaufman, "sign language interpreters are frequently utilized in RUMC's Emergency Department and are readily available after they are contacted." (Lenza Deck, Ex. 3 (Kaufman Deck) (Dkt. No. 82-3) ¶ 6) Indeed, Dr. Kaufman "use[s] [sign language interpreters] all the time" at RUMC. (August 10, 2016 Wiederhorn Deck, Ex. X (Kaufman Dep.) (Dkt. No. 87-5) at 31:24-32:8) Rose has also "personally requested and utilized a sign language interpreter for deaf patients at RUMC's Emergency Department, " and is "aware of RUMC's policy regarding providing interpreters for non-English speaking patients[, ]... which includes deaf or hard of hearing patients." (Lenza Decl., Ex. 18 (Rose Decl.) (Dkt. No. 82-17) ¶¶ 13-14)

         D. ACS Home Visits to Viera's Residence

         Based on the referral from RUMC, on December 2, 2014, ACS opened an investigation into whether A.G. had been the victim of child abuse. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 1) Because A.G. had suffered a serious injury, ACS designated the matter an "instant response" case. (Id. ¶ 392)

         1. Gavle-Curtis' December 2, 2014 Home Visit

         At 12:58 p.m., Child Protective Specialist Supervisor ("CPSS") Sophia Gayle-Curtis contacted Weill Cornell, where A.G. was being treated. (City R. 56.1 Resp. (Dkt. No. 97) ¶ 521) Gayle-Curtis' Investigation Progress Notes state that the Weill Cornell "medical team did not have any [child abuse] concerns regarding [A.G.'s] injury." (June 27, 2016 Weiderhorn Decl., Ex. F (Investigation Progress Notes) at City 000008)[13] Moreover, when Gayle-Curtis met with Dr. Nina Mbadiwe - A.G.'s treating physician at Weill Cornell - Dr. Mbadiwe told Gayle-Curtis that Gosselin's explanation of how A.G.'s injury had occurred was consistent with A.G.'s injury. (City R. 56.1 Resp. (Dkt. No. 97) ¶¶ 525-26) In her Progress Notes, Gayle-Curtis wrote that the medical staff "expressed no concerns regarding the injury being non accidental. The father's story was consistent with the injury as per medical staff." (June 27, 2016 Weiderhorn Decl., Ex. F (Investigation Progress Notes) at City 000026)

         At 4:15 p.m., Gayle-Curtis met with Gosselin at Weill Cornell. (Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶¶ 399-400; City R. 56.1 Resp. (Dkt. No. 97) ¶ 523) During her interview of Gosselin, he informed her that Viera is deaf. (Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶ 401) Gayle-Curtis told Gosselin that she would need to conduct a home visit to ensure the safety of the other children. (Id. ¶ 403)

         At 6:30 p.m., Gayle-Curtis conducted a home visit at Viera and Gosselin's residence. Viera and her six other children were present at the residence during Gayle-Curtis' visit. (June 27, 2016 Weiderhorn Decl., Ex. F (Investigation Progress Notes) at City 000011) Although she had learned during her 4:15 p.m. interview of Gosselin that Viera is deaf, Gayle-Curtis - who does not know sign language - did not arrange for an ASL interpreter to be present for the home visit. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶¶ 55, 57, 62; Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶ 407) Gayle-Curtis testified that she did not believe that it was possible to arrange for an ASL interpreter to be present in time for the home visit. (Lively Decl., Ex. 9 (Gayle-Curtis Dep.) (Dkt. No. 95-9) at 92:16-20) According to Gayle-Curtis, at ACS, "three or so hours" advance notice is necessary to arrange for an ASL interpreter. (Id. at 86:20-22)

         Viera testified that when Gayle-Curtis arrived for the home visit, Viera communicated through one of her children that she needed a sign language interpreter: "I signed that I needed somebody to sign." (June 27, 2016 Wiederhorn Decl., Ex. B (Viera Dep.) (Dkt. No. 78-2) at 112:16-25; City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 44) According to Viera, during that visit, Gayle-Curtis tried to ask her questions, but Viera "couldn't understand what she was saying, " and did not know what was being asked. (June 27, 2016 Wiederhorn Decl., Ex. B (Viera Dep.) (Dkt. No. 78-2) at 119:2-12; City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 45) Gayle-Curtis maintains, however, that during the December 2, 2014 home visit, she communicated with Viera in writing, through one of her children, and through Gosselin by cell phone via FaceTime.[14] (Lively Decl., Ex. 9 (Gayle-Curtis Dep.) (Dkt. No. 95-9) at 28:18-25, 36:23-37:16; City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 63; June 27, 2016 Weiderhorn Decl., Ex. F (Investigation Progress Notes) at City 000011)

         When asked at her deposition whether she was able to explain to Viera why she was conducting a home visit, Gayle-Curtis testified that she did so "[t]hrough Mr. Gosselin, because ... he called at a certain period during my home visit and he was on a cell phone, Face[]Time, and communicated with Miss Viera .... He assisted with some explanation." (Lively Deck, Ex. 9 (Gayle-Curtis Dep.) (Dkt. No. 95-9) at 36:23-36:7); see also Id. at 80:12-20 (Gayle-Curtis testimony that Gosselin "was using sign language, he was using his hands" while on FaceTime)) Viera confirmed that Gosselin spoke with Gayle-Curtis through FaceTime, and also signed to Viera over FaceTime during Gayle-Curtis' visit. (June 27, 2016 Wiederhora Decl., Ex. B (Viera Dep.) (Dkt. No. 78-2) at 115:16-17, 116:17-22) Gayle-Curtis' Progress Notes state that Viera's daughter, N.G., helped Gayle-Curtis "obtain[] from Ms. Viera the [dates of birth] and names of household members." (June 27, 2016 Weiderhorn Decl., Ex. F (Investigation Progress Notes) at City 000011) Gayle-Curtis also communicated in writing with Viera about the names and ages of some of her children. (Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶ 409) Gayle-Curtis' Progress Notes state, however, that she "did not speak with Ms. Viera and the children, [N.G.] and [J.G., ] regarding the [child abuse] allegations due to not having a sign language interpreter present to translate." (City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 89 (quoting June 27, 2016 Weiderhorn Deck, Ex. F (Investigation Progress Notes) at City 000011))

         During this visit, Gayle-Curtis told Gosselin via FaceTime that another Child Protective Specialist ("CPS") would return to the couple's home the next day with an ASL interpreter. (Id. ¶ 63) Gosselin communicated to Viera over FaceTime that Gayle-Curtis "was going to be back the next day." (June 27, 2016 Wiederhora Decl., Ex. B (Viera Dep.) (Dkt. No. 78-2) at 116:17)

         Gayle-Curtis does not recall whether ACS provided her with training concerning compliance with the ADA. Moreover, although she was aware that caseworkers are supposed to bring a "Language Identification Tool" - a document that lists language services that ACS offers to parents - with them on home visits, she did not have this document with her when she made the initial home visit to Viera's residence. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶¶ 183-184 (citing June 27, 2016 Wiederhora Deck, Ex. M (Gayle-Curtis Dep.) (Dkt. No. 78-12) at 51:25-54:2))

         2. Jones' December 3, 2014 Home Visit

         The next day - December 3, 2014 - CPS Tanya Jones conducted a home visit at Viera and Gosselin's residence. Jones was accompanied by an ASL interpreter. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 66) Viera and her six other children were present for this visit. (June 27, 2016 Weiderhorn Deck, Ex. F (Investigation Progress Notes) at City 000022) While the City contends that Jones explained ACS's investigation protocol at length to Viera during this visit (Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶ 424), Viera disputes Jones' account. (Id.; June 27, 2016 Wiederhora Deck, Ex. B (Viera Dep.) (Dkt. No. 78-2) at 119:25-120:2 ("Q: Did Ms. Jones explain what would happen as part of the investigation? A: She did not."))

         Viera testified that she told Jones - through the ASL interpreter - that she was upset that there had been no ASL interpreter for Gayle-Curtis' visit the previous day. (June 27, 2016 Wiederhorn Decl., Ex. B (Viera Dep.) (Dkt. No. 78-2) at 122:14-20) Viera told Jones that she thought her children were going to be removed, that she did not have a full understanding of what was happening, and that she believed that it was unfair for anyone to speak with her children without an ASL interpreter present. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶¶ 46, 67 (citing June 27, 2016 Weiderhorn Decl., Ex. F (Investigation Progress Notes) at City 000023))

         3. Jones' December 22, 2014 Home Visit

         On December 5, 2014, Jones wrote in her Progress Notes that Weill Cornell had concluded that A.G.'s injury was "accidental[, ] as they believe the child's injury is consistent with the parent's explanation." (Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶ 447) Jones nonetheless conducted three additional home visits, and did not bring an ASL interpreter with her on any of these occasions.

         The City argues that Viera did not tell Jones that she wanted an ASL interpreter for any of these three home visits. (Id. ¶ 480) Viera points out, however, that she requested an ASL interpreter during the December 2, 2014 home visit, and that she told Jones - during the December 3, 2014 home visit and through the ASL interpreter - that she was upset that there had been no interpreter for Gayle-Curtis' initial home visit. (June 27, 2016 Wiederhorn Decl., Ex. B (Viera Dep.) (Dkt. No. 78-2) at 122:18-20) Viera further testified that she "ask[ed] Mr. Gosselin to ask Ms. Jones for an interpreter every time Ms. Jones made a home visit." (Id. at 135:18-136:8, 138:15-139:3)

         On December 22, 2014, Jones conducted a home visit at Viera and Gosselin's residence. Jones did not bring an ASL interpreter. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 73) According to the City, Jones attempted to obtain an ASL interpreter for this visit, but was unsuccessful. (Id. ¶ 457) There is no written evidence that Jones attempted to schedule an ASL interpreter, however, even though ACS policy requires that such requests be documented. (June 27, 2016 Weiderhorn Decl., Ex. G (ACS Memorandum) at City 000179)[15]

         The City further contends that the December 22, 2014 home visit lasted no more than ten minutes. (Pltf. R. 56.1 Resp. (Dkt. No. 99) ¶ 456) Viera disputes this assertion, however, and argues that Jones' Progress Notes for that day - which contain a substantial amount of information - corroborate her claim that the visit was longer than ten minutes. (Id. ¶ 456)

         During the December 22, 2014 home visit, Jones met with Viera, Gosselin, and Viera's stepmother - Charito Pacheco - in the kitchen of the residence. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶¶ 74, 78) "[A]ll [of Viera's] children were home." (June 27, 2016 Weiderhorn Deck, Ex. F (Investigation Progress Notes) at City 000029) Jones asked Pacheco to perform sign language interpretation for Viera during the December 22, 2014 home visit. (City R. 56.1 Counterstatement (Dkt. No. 94) ¶¶ 47, 74) Jones testified that, during this visit, Pacheco was signing to Viera while Jones and Gosselin were speaking, and that Viera "nodded in agreement to the things that Mr. Gosselin was saying." (June 27, 2016 Wiederhorn Decl., Ex. K (Jones Dep.) (Dkt. No. 78-10) at 112:10-113:2) According to Jones, most of the information she obtained came directly from Gosselin. (Id. at 112:17-20; City R. 56.1 Counterstatement (Dkt. No. 94) ¶ 78)

         Pacheco testified that although Jones "asked [her] to interpret. ... I didn't know half of the words she was telling me... . Like, 'Does she know why we came over, and we want to know if this was like a, like an abuse, ' and I said, no, 'Josiy, they want to know if you did it for real.' I didn't know how to say 'on purpose.'. . . Things like that." (June 27, 2016 Wiederhorn Decl., Ex. E (Pacheco Dep.) (Dkt. No. 78-5) at 24:8-22) Viera testified that Pacheco "couldn't interpret, [because] she's not fluent in sign language." (June 27, 2016 Wiederhorn Decl, Ex. B (Viera Dep.) (Dkt. No. 78-2) at 132:18-25) Viera's deaf child, J.G., testified that when Pacheco attempts to interpret for her, J.G. does not understand the interpretation, because Pacheco does not sign correctly. (Lively Decl., Ex. 16 (J.G. Dep.) (Dkt. No. 95-16) at 14:1-6)

         Jones' Progress Notes state that Pacheco "interpreted while [Jones] spoke with both parents about the status of the case and inquired about [A.G.'s] progress." (June 27, 2016 Weiderhorn Decl., Ex. F (Investigation Progress Notes) at City 000029) Jones' Progress Notes indicate that the following matters were discussed during the December 22, 2014 home visit:

the status of the parents' drug tests;
conditions at home;
A.G.'s medical condition;
Gosselin's medical condition, and tendency to become dizzy when he neglects to eat; status of the ACS investigation (which Viera inquired about);
status of Jones' inquiries to "collateral contacts" - pediatricians, service providers, teachers, guidance counselors, and other people who have contact with the family - and the need for Jones to obtain a response from A.G.'s pediatrician and the school staff for A.G.'s siblings, and Gosselin's medical records;
the need for another home visit, with an interpreter, in the event that negative information is obtained from the collateral contacts, and both parents' willingness to have Jones return at "any time";
safe sleeping practices for infants;
whether the parents needed any services; and
Gosselin's plan to register the children for Medicaid and his plans to marry Viera.

Id.

         Jones also spoke with each of A.G.'s six siblings about school and the upcoming Christmas holiday, and observed A.G. sleeping in his crib. Jones discussed with Gosselin safe sleeping practices for infants. (Id.) Jones also spoke with Pacheco, who reported that she visited the home regularly to help Viera and Gosselin with the children, that the parents were '"doing a great job, '" that the children were doing well in school, and that '"they all get along.'" (Id.) Jones also made observations concerning the cleanliness of the residence, whether it was stocked with food, and whether the children had any visible marks or bruises. (Id.)

         When asked at deposition why she would "follow up with an interpreter" if "unfavorable" information was received, Jones stated that it would not be appropriate to proceed without an interpreter for that "type of conversation." (June 27, 2016 Wiederhorn Deck, Ex. K (Jones Dep.) (Dkt. No. 78-10) at 113:22-114:8)

         4. Jones' January 13 and 29, ...


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