MARK TAUSCHER v. PHOENIX BOARD OF REALTORS, INCORPORATED, DBA Phоenix Association of Realtors
No. 17-17218
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
July 25, 2019
D.C. No. 2:15-cv-00125-SPL
Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding
Argued and Submitted May 13, 2019 San Francisco, California
Filed July 25, 2019
Before: Sidney R. Thomas, Chief Judge, Sandra S. Ikuta, Circuit Judge, and Donald W. Molloy,* District Judge.
Opinion by Judge Ikuta
SUMMARY**
Americans with Disabilities Act
The panel reversed the district court‘s grant of summary judgment in favor of the defendant in an action brought under Title III of the Americans with Disabilities Act and the Arizonans with Disabilities Act.
Plaintiff, a profoundly deaf individual who is a licensed real estate salesperson, alleged that the Phoenix Association of Realtors failed to comply with the ADA and AzDA when it denied plaintiff‘s requests for an American Sign Language interpreter at continuing education courses.
A public accommodation must furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. The panel held that PAR was not required to provide the specific aid or service requested by plaintiff, but there was a genuine issue of material fact as to whether PAR offered plaintiff a means of communication that was effective.
The panel held that the ADA‘s requirement that an employer engage in an interactive process regarding possible accommodations does not apply in the context of public accommodations and servicеs. Accordingly, PAR was not discharged of its obligation to ensure effective communication merely because plaintiff did not engage in further discussion with PAR regarding measures other than an ASL interpreter.
The panel concluded that the question whether providing an ASL interpreter would result in an undue burden on PAR raised complex issues that the district court was better able to address in the first instance. The panel vacated the district court‘s summary judgment and remanded for proceedings consistent with its opinion.
COUNSEL
William August Richards (argued) and David E. Wood, Baskin Richards PLC, Phoenix, Arizona; Andrew Rozynski, Eisenberg & Baum, New York, New York; for Plaintiff-Appellant.
Brian Alexander Howie (argued) and Eric B. Johnson, Quarles & Brady LLP, Phoenix, Arizona, for Defendant-Appellee.
IKUTA, Circuit Judge:
Mark Tauscher is a profoundly deaf individual who is a licensed real estate salesperson in Arizona. On January 23, 2015, Tauscher filed a lawsuit against the Phoenix Association of Realtors (PAR), alleging that PAR did not comply with the Americans with Disabilities Act of 1990 (ADA),
I
Mark Tauscher has profound hearing loss, meaning that he cannot hear sounds that are less than 90 decibels loud (about as loud as a lawnmower).1 According to an expert report in the record, Tauscher cannot hear in conversational settings, and he cannot use lip reading to understand speech. Nor can Tauscher effectively communicate with others by means of spoken words. Tauscher‘s primary and best form of communication is American Sign Language (ASL). Despite these limitations, Tauscher has obtained a bachelor‘s degree in biomedical photographic communication and a master‘s degree in business administration. He works full time for Sprint as a branch manager for product development and is also a licensed real estаte salesperson in Arizona.
The Phoenix Association of Realtors is a trade association for real estate professionals who sell real property in the Phoenix metropolitan area.2 PAR has twelve employees. Its membership has ranged from 7,600 to over 13,000 dues-paying members between 2008 and 2013. PAR offers a variety of programs and services for its members, including seminars that fulfill continuing education requirements set by thе Arizona Department of Real Estate. Historically, PAR has charged only a nominal amount for these seminars, and the record indicates that the revenue from PAR‘s seminars is generally less than the seminars’ costs.
Tauscher registered for a continuing education course that PAR scheduled for February 13 and 14, 2013. Tauscher‘s registration fee for the course was $20. In September 2012, Tauscher contacted Diane Scherer, PAR‘s Chief Executivе Officer, to ask PAR to provide an ASL interpreter for the course. Scherer declined to provide an ASL interpreter and instead offered Tauscher the use of an FM Loop system that amplifies sound. Tauscher rejected this aid; he explained that such a system would not provide effective communication for him because of the extent of his hearing impairment. Scherer and Tauscher discussed the possibility of сlosed or open captioning, but the conversation ended without any agreement being reached.
In early February 2013, PAR responded to Tauscher‘s request for an auxiliary aid or service in a letter prepared by PAR‘s counsel. PAR rejected Tauscher‘s request for an ASL interpreter on the ground that PAR did not have the resources to provide an ASL interpreter and it would be an undue burden on the organization. Instead, the lеtter proposed three other measures. First, the letter stated that if Tauscher wanted “to attend the class and utilize lip reading, PAR [could] make the instructor available for questions at breaks and lunch.” Second, the letter stated that “if [Tauscher knew] another real estate agent who [was] willing to sign for [him], PAR [would] provide the instruction and credits free to that person.” Finally, PAR suggested that Tauscher could fulfill the continuing
In October 2014, Tauscher registered for another PAR course and asked PAR to provide an ASL interpreter. PAR again refused, proposing instead to “make the instructor available for you for questions at break and lunch.” PAR subsequently cancelled Tauscher‘s registration for the course.
Tauscher brought a claim in district court alleging that PAR had violated the ADA and the Arizonans with Disabilities Act. The parties filed cross-motions for summary judgment, and the district court granted PAR‘s motion. The district court held that PAR‘s obligations under the ADA were satisfied when it engaged in a dialogue with Tauscher about his request for an ASL interpreter, and PAR was relieved from any further obligations under the ADA because Tauscher had refused to discuss any measures other than an ASL interpreter. The court subsequently denied Tauscher‘s motion for reconsideration, and Tauscher timely appealed.
II
We review a district court‘s grant of summary judgment de novo. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). Summary judgment is appropriate only if, taking the evidence and all reasonable inferences in the light most favorable to the non-moving party, there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law.
A
Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
Under the applicable regulations, a public accommodation has an obligation to “take those steps that may be nеcessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.”
A public accommodation must furnish “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”
B
On appeal, Tauscher argues that the district court erred in granting summary judgment in favor of PAR because there is a genuine issue of materiаl fact as to whether PAR failed to provide him with “appropriate auxiliary aids and services” that would “ensure effective communication.” According to Tauscher, PAR failed to discharge its ADA obligations because it failed to provide an ASL interpreter. The regulations do not require PAR to provide the specific aid or service requested by Tauscher; the regulations make clear that “the ultimate decision as to what measures to take rests with the public accommodation,” so long as the measures provide effective communication.
PAR offered Tauscher several different measures over the course of its communication with him. Some of the measures offered by PAR clearly were not effective means of communication. PAR does not now dispute that the FM Loop system was not an effective means of communication for Tauscher. And several of the alternatives suggested by PAR do not constitute an effective means of communication as a matter of law. Because the regulations expressly provide that a public accommodаtion may not require disabled individuals to provide their own interpreter, see
PAR also offered to “make the instructor available for questions at breaks and lunch” if Tauscher wished to attend the session and rely on lipreading. Because
Finally, there is a genuine issue of material fact as to whether PAR offered to provide a captioning system. PAR argues on appeal that captioning would be an effective means of communication, but there is evidence in the record that PAR did not offer Tauscher the use of any captioning system. In her deposition, Scherer testified that PAR did not offer Tauscher any sort оf closed-captioning option or court-reporter alternative, but rather had concluded that a computer-based captioning system would have been too costly, and therefore was not a feasible alternative. Tauscher also asserts that captioning would not be an effective means of communication because he is not proficient in English. Accordingly, we conclude that there is а genuine issue of material fact as to whether PAR took the steps that were necessary to ensure effective communication with Tauscher.
C
We next consider PAR‘s argument that it satisfied its obligations under the ADA because Tauscher refused to engage in a discussion about alternative auxiliary aids other than an ASL interpreter. The district court relied on this ground in granting PAR‘s motion for summary judgment.
This argument is based on the ADA‘s requirements in the emplоyment context. See Title I of the ADA,
The ADA does not make this “interactive process” requirement applicable to public accommodations and services. See Title III of the ADA,
D
PAR also argues that, even if it did not offer an auxiliary aid or service that would have resulted in effective communication for Tauscher, it is entitled to judgment as a matter of law because it demonstrated that any additional measure (such as an ASL interpreter or closed captioning) would have resulted in an undue burden on PAR. See
The ADA regulations define “undue burden” to mean a “significаnt difficulty or expense,” taking into account a range of factors relating to the cost of the action compared to the financial resources of the public accommodation.
In this case, PAR argues that it charges only a $20 registration fee for its courses, but the cost of an ASL interpreter for the February 2013 course would have been between $1,680 and $3,360. PAR asserts it already loses money in providing these continuing education courses, and the loss of an additional $1,560 would be a “significant difficulty or expense.”
The question whether providing an ASL interpreter would result in an undue burden raises complex issues that the district court is better able to address in the first instance. See Ariz. Libertarian Party, Inc. v. Bayless, 351 F.3d 1277, 1283 (9th Cir. 2003). The district court did not consider whether Tauscher‘s evidence regarding PAR‘s overall financial resources raised a genuine issue of material fact on this issue. Accordingly, we think it is prudent to allow the district court to consider this issue in the first instance.
III
In sum, PAR is not entitled to summary judgment because engaging in dialogue with Tauscher did not satisfy its obligations under the ADA. Moreover, there is a genuine issue of material fact as to whether PAR offered an auxiliary aid or service that would provide effective communication to Tauscher.6 We vacate the district court‘s grant of summary judgment to PAR and remand for proceedings consistent with this opinion.
VACATED AND REMANDED.