Tauscher v. Phoenix Board of Realtors Incorporated

Filing 59

* ORDER - IT IS ORDERED: 1. That Plaintiff's Motion for Summary Judgment (Doc. 45 ) is denied; 2. That Defendant's Motion for Summary Judgment (Doc. 48 ) is granted; and 3. That the Clerk of Court shall terminate this action and enter judgment accordingly. (See document for further details). Signed by Judge Steven P Logan on 9/29/17. (LAD) * Modified to correct file date on 10/2/2017 (LAD).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mark Tauscher,

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Plaintiff,
vs.

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Phoenix Board of Realtors, Inc.,
Defendant.

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No. CV-15-00125-PHX-SPL
ORDER

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Before the Court are the parties’ Cross Motions for Summary Judgment. (Docs.

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45, 48.) For the reasons set forth below, Defendant’s Motion for Summary Judgment

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(Doc. 48) is granted.

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I.

Background

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Plaintiff Mark Tauscher is a deaf individual whose “expressed, preferred, and

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most effective means of communication” is American Sign Language (“ASL”). (Doc. 1

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at 3.) Plaintiff is a licensed real estate agent in the State of Arizona. (Doc. 1 at 3.)

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Defendant Phoenix Board of Realtors, doing business as Phoenix Association of Realtors

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(“PAR”), is a real estate professional organization to which Plaintiff belongs. (Doc. 1 at

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3.)

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On September 28, 2012, Plaintiff contacted Defendant to notify the organization

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that he intended to attend classes held by PAR and “to request accommodations of ASL

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interpreters in order to attend the classes.” (Doc. 1 at 3.) Plaintiff and Defendant’s Chief

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Executive Officer Diane Scherer discussed Plaintiff’s accommodation request for an ASL

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translator over a telephone call on October 15, 2012, during which time she suggested

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alternative accommodations such as the use of a FM loop system or real-time captioning.

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(Doc. 1 at 4.) During this conversation, Scherer informed Plaintiff that “PAR could not

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provide ASL interpreters because of the cost,” while Plaintiff advised Defendant that

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“other forms of accommodation could not provide effective communication in a live class

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setting.” (Doc. 1 at 4.)

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In February 2013, Plaintiff registered for a finance class offered by Defendant.

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(Doc. 1 at 4.) The registration form that Plaintiff completed included a checkbox stating,

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“I have a disability that requires special accommodation,” which Plaintiff marked and

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underneath wrote “sign language interpreter.” (Doc. 1 at 4.) Plaintiff contacted Scherer

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on February 7, 2013 to inform her that he planned on attending the class and again

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requested that an ASL interpreter be provided for him. (Doc. 1 at 4.) The following day,

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Plaintiff received a response from an attorney at the law firm that represents Defendant

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explaining that “PAR was under an obligation to accommodate Plaintiff and denied

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Plaintiff’s request for an interpreter.” (Doc. 1 at 4-5.) Plaintiff did not attend the class and

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received a refund for his registration costs. Subsequent correspondence between Plaintiff

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and Defendant’s lawyer confirmed that Defendant would not provide Plaintiff an ASL

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interpreter because it was under no obligation to do so. (Doc. 1 at 5.)

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On October 14, 2014, Plaintiff again reached out to Defendant to inform it that he

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enrolled in one of its upcoming courses and requested that an interpreter be provided.

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Plaintiff received a response from Defendant’s lawyer maintaining that while it was

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under no obligation to provide an interpreter, PAR would be “willing to discuss ‘less

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burdensome alternatives.’” (Doc. 1 at 5.)

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Plaintiff initiated the present case against Defendant for alleged violations of Title

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III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 and the

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Arizonans with Disabilities Act (“AzDA”), Ariz. Rev. Stat. § 41-1492. (Doc. 1.) The

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parties have filed Cross Motions for Summary Judgment. (Docs. 45, 48.)

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II.

Standard of Review

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Summary judgment is appropriate if “the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). Summary judgment may also be entered “against a party who fails

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to make a showing sufficient to establish the existence of an element essential to that

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party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

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v. Catrett, 477 U.S. 317, 323 (1986).

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The moving party “bears the initial responsibility of informing the district court of

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the basis for its motion, and identifying those portions of [the record] which it believes

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demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323

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(1986). If the movant carries its initial burden of production, in response, the non-movant

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“must do more than simply show that there is some metaphysical doubt as to the material

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facts,” and instead must “come forward with ‘specific facts showing that there is a

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genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

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574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)).

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The court views the evidence and draws reasonable inferences “in the light most

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favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654,

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655 (1962). However, only disputes over facts that could affect the outcome of the suit

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will preclude the entry of summary judgment, and the disputed evidence must be “such

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that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See also Scott v. Harris, 550 U.S. 372,

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380 (2007).

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III.

Discussion

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To state a prima facie case under the ADA, Plaintiff must show (1) that he is

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disabled within the meaning of the ADA; (2) that he is a qualified individual with a

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disability; and (3) that he was discriminated against because of his disability. Smith v.

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Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013).1 The parties dispute whether

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Defendant is a public accommodation under Title III of the ADA. (Doc. 45 at 5-8; Doc.

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48 at 9-11.) Assuming for purposes of the present Cross Motions for Summary Judgment

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that Defendant is a public accommodation under the ADA, the crux of this case turns on

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whether Defendant met its obligation to facilitate effective communication for Plaintiff

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through the provision of auxiliary aids.

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Plaintiff claims that Defendant was required by law to provide him with an ASL

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interpreter and that Defendant’s failure to do so amounts to discrimination in violation of

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the ADA. This argument fails as a matter of law. It is undisputed that Plaintiff,

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Defendant, and Defendant’s lawyers engaged in multiple discussions over the course of

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two years pertaining to Plaintiff’s requests for an ASL interpreter so that he could attend

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classes offered by Defendant. (Doc. 46 ¶¶ 51-68; Doc. 49 ¶¶ 29-43.) This discussion

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began on October 15, 2012 during Plaintiff’s phone call with Defendant’s CEO Diane

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Scherer, at which time Plaintiff refused to discuss alternative auxiliary aids upon learning

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that Defendant would not be able to accommodate his request for an ASL interpreter.

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(Doc. 46 ¶¶ 52-53; Doc. 49 ¶¶ 30-31.) Subsequent conversations between Plaintiff,

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Defendant, and Defendant’s lawyers confirmed Plaintiff’s refusal to consider alternative

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auxiliary aids. (Doc. 46 ¶¶ 51-52; Doc. 49 ¶¶ 29-32.)

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As the implementing regulations for Title III of the ADA states, “[a] public

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accommodation shall take those steps that may be necessary to ensure that no individual

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with a disability is excluded, denied services, segregated or otherwise treated differently

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than other individuals because of the absence of auxiliary aids.” 28 C.F.R. § 36.303(a).

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Accordingly, public accommodations “shall furnish appropriate auxiliary aids and

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services where necessary to ensure effective communication with individuals with

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disabilities.” 28 C.F.R. § 36.303(c). The type of auxiliary aid or service necessary is

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highly contextual. 28 C.F.R. § 36.303(c)(ii). Moreover, it is important to note that “[a]

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The parties do not dispute that Plaintiff is disabled and a qualified individual under
the ADA.
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public accommodation should consult with individuals with disabilities whenever

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possible to determine what type of auxiliary aid is needed to ensure effective

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communication, but the ultimate decision as to what measures to take rests with the

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public accommodation, provided that the method chosen results in effective

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communication.” Id. (emphasis added).

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As 28 C.F.R. § 36.303 indicates, Defendant’s obligation under the ADA was

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satisfied when it engaged in a dialogue with Plaintiff about his request for an ASL

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interpreter. At no point was Defendant obligated to provide Plaintiff with his auxiliary aid

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of choice, it was only obligated to provide one which would facilitate effective

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communication. The ADA does not require public accommodations to provide an

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individual with their requested auxiliary aid, nor does it impose a duty to give primary

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consideration to an individual’s particular auxiliary aid requests.2 Again, the ADA only

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mandates that public accommodations provide an auxiliary aid that would facilitate

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effective communication. Defendant met this obligation under the ADA when it engaged

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in a dialogue with Plaintiff about his request for an ASL interpreter so that Plaintiff could

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attend Defendant’s classes, but was precluded from further meeting its obligations under

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the ADA when Plaintiff refused to discuss alternative auxiliary aids.

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At trial, Plaintiff bears the burden of proof at trial to show that he was

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discriminated against as a result of Defendant’s conduct, not his own. Because he cannot

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do so, Plaintiff’s claims against Defendant fail as a matter of law. Furthermore, because

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Plaintiff’s ADA claims fail as a matter of law, so too do his claims against Defendant

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under the AzDA. See McCoy v. Petwin Hayden LLC, No. CV-16-02795-PHX-JAT, 2016

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WL 7440789, at *1, n.1 (D. Ariz. 2016); Hamblen v. Diamonte Crossroads Plaza, LLC,

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In fact, such a position has been expressly rejected. 28 C.F.R. Pt. 36, App. A, §
36.303 (“Many commentators urged the Department to amend this provision to require
public accommodations to give primary consideration to the expressed choice of an
individual with a disability. However, as the Department explained when it initially
promulgated the 1991 title III regulation, the Department believes that Congress did not
intend under title III to impose upon a public accommodation the requirement that it give
primary consideration to the request of the individual with a disability.”).
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No. CV-08-0561-PHX-JAT, 2009 WL 825809, at *1, n. 1 (D. Ariz. 2009) (“Although the

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Court only discusses the ADA claim in the body of this order, the Court’s discussion is

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equally applicable to the AzDA claim. Compliance with Title III and its implementing

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regulations equals compliance with the AzDA. See A.R.S. § 41-1492.06(B).”).

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IV.

Conclusion

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Plaintiff’s claims against Defendant fail as a matter of law. Assuming for purposes

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of this motion that Defendant is a public accommodation under Title III of the ADA,

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Defendant met its obligations under the ADA and its implementing regulations when it

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engaged in a dialogue with Plaintiff about his request for an ASL interpreter for

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Defendant’s classes. Defendant was precluded from further meeting its obligations under

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the ADA when Plaintiff refused to discuss alternative auxiliary aids. Accordingly,

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IT IS ORDERED:

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1.

That Plaintiff’s Motion for Summary Judgment (Doc. 45) is denied;

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2.

That Defendant’s Motion for Summary Judgment (Doc. 48) is granted; and

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3.

That the Clerk of Court shall terminate this action and enter judgment

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accordingly.
Dated this 29th day of September, 2017.

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Honorable Steven P. Logan
United States District Judge

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