Fry v. City of Northglenn, Colorado, The et al
Filing
131
ORDER by Judge Philip A. Brimmer on 02/22/2018, re: 96 Plaintiff's Objection to Magistrate's Order [Docket No. 95/public entry Docket No. 96] is OVERRULED. (sphil, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-02318-PAB-KLM
PAULA FRY,
Plaintiff,
v.
CITY OF NORTHGLENN, COLORADO,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s Objection to Magistrate’s Order
[Docket No. 95/public entry Docket No. 96].
The background facts are set forth in the magistrate judge’s order and will not be
repeated here except as relevant to resolving the present motion. On September 14,
2016, plaintiff Paula Fry filed this action alleging that defendant City of Northglenn
violated Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et
seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by failing to provide
her with a qualified sign language interpreter to communicate with police officers
regarding the investigation of her kidnapping and rape. Docket No. 1. On May 10,
2017, defendant submitted its Third Supplemental Disclosures pursuant to Rule 26(e)
of the Federal Rules of Civil Procedure, listing plaintiff’s adolescent son, D.F., as a
person likely to have discoverable information regarding plaintiff’s communication
preferences and abilities. Docket No. 46-1 at 35, ¶ 31; Docket No. 52 at 1. Plaintif f
filed a motion in limine and/or for a protective order on June 26, 2017, requesting that
the Court strike defendant’s disclosure of D.F. as a potential witness and prohibit
defendant from calling D.F. to testify at trial. Docket No. 46. On October 5, 2017,
Magistrate Judge Kristen L. Mix entered an order denying the motion. Docket No. 87.
The magistrate judge found that D.F.’s testimony was relevant to the issues in the case
and that plaintiff had failed to demonstrate good cause for a protective order. Docket
No. 87 at 6-7. In her order, the magistrate judge limited the scope of discoverable
testimony to “how [D.F.] communicates with his mother, whether he feels he can
effectively communicate with his mother, and his knowledge of whether his mother
generally uses ASL, another form of sign language, or some other form(s) altogether.”
Id. at 8. Plaintiff filed an objection to the order on October 19, 2017. Docket No. 95.
On November 1, 2017, defendant filed a response, Docket No. 101, to which plaintiff
replied on November 7, 2017. Docket No. 106.
Plaintiff’s objection pertains to a non-dispositive discovery matter. When
reviewing a party’s objection to a magistrate judge’s order on a non-dispositive matter,
the Court “must consider timely objections and modify or set aside any part of the order
that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); Hutchinson v.
Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). The clearly erroneous standard “requires that
the reviewing court affirm unless it ‘on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’” Ocelot Oil Corp. v. Sparrow
Industries, 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)).
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Plaintiff objects to the magistrate judge’s order on two grounds. First, she
argues that the magistrate judge overlooked regulatory guidance regarding the factors
to be considered in determining whether there was effective communication between
plaintiff and members of the Northglenn police department. In light of these factors,
plaintiff asserts that D.F.’s testimony is irrelevant to the issue of defendant’s liability.
Docket No. 95 at 6-10. Second, plaintiff contends that the magistrate judge erred by
failing to exclude D.F.’s testimony under Federal Rule of Evidence 403. Docket No. 95
at 10-131.
Plaintiff contends that the magistrate judge ignored interpretive guidance from
the Department of Justice (“DOJ Guidance”) in determining that D.F.’s testimony
constitutes admissible evidence under Federal Rule of Evidence 402. Docket No. 95 at
7. The DOJ Guidance notes that 28 C.F.R. § 35.160(b)(2) provides the following
“factors for consideration” in determining the type of auxiliary aid or service necessary
to ensure effective communication under the ADA: “the method of communication used
by the individual; the nature, length, and complexity of the communication involved; and
the context in which the communication is taking place.” 28 C.F.R. Pt. 35, App. A,
§ 35.160 (2011); see also 28 C.F.R. § 35.160(b)(2). Emphasizing the context-specific
nature of this inquiry, plaintiff asserts that D.F.’s testimony regarding plaintiff’s general
1
Plaintiff also argues in her reply that she is entitled to a protective order under
Federal Rule of Civil Procedure 26(c)(1) and that D.F.’s testimony will constitute
speculative lay opinion. Docket No. 106 at 1-4, ¶¶ 1-7, 11-12. Because these
arguments were not clearly raised in plaintiff’s initial objection to the magistrate judge’s
order, however, the Court will not consider them. See City of Colorado Springs v. Solis,
589 F.3d 1121, 1135 n.5 (10th Cir. 2009) (“[A]rguments not raised in the opening brief
are waived.”).
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communication abilities and preferences in her daily mother-son interactions has no
bearing on whether plaintiff was able to communicate effectively with police officers
about her rape. Docket No. 95 at 7-8.
As a preliminary matter, the Court notes that plaintiff’s Rule 402 challenge is
premature. Defendant seeks only to discover D.F.’s testimony, not admit it into
evidence. Compare Fed. R. Evid. 402 (establishing admissibility of relevant evidence),
with Fed. R. Civ. P. 26(b)(1) (stating that information “need not be admissible in
evidence to be discoverable”); see also In re Cooper Tire & Rubber Co., 568 F.3d 1180,
1189 (10th Cir. 2009) (noting that, at least in one respect, concept of relevance in
discovery “clearly is broader than ‘admissibility’ at trial”).2 However, even assuming that
the standard for relevance is the same under Federal Rule of Civil Procedure 26(b)(1)
and Federal Rule of Evidence 401, the magistrate judge’s ruling was not clearly
erroneous or contrary to law.
The magistrate judge correctly stated that evidence is relevant under Rule 401 if
“(a) it has any tendency to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in determining the action.” Fed. R.
Evid. 401. This is a liberal standard: “evidence need not be conclusive or highly
probative to satisfy Rule 401–‘even a minimal probability’ that the asserted fact exists
will suffice.” Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1087 (D. Colo. 2006)
2
For the same reason, plaintiff’s characterization of her motion as a “motion in
limine” is inaccurate. Motions in limine are used to obtain a ruling on the admissibility of
evidence before or during trial, not to prevent the disclosure of evidence during
discovery. See generally 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice & Procedure § 5037.10 (2d ed. 2005).
4
(quoting United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir. 1998), overruled on
other grounds by Hook v. Ward, 184 F.3d 1206, 1226-27 (10th Cir. 1999)). W ith regard
to Rule 401’s materiality prong, a fact is “of consequence” to the action “when its
existence would provide the fact-finder with a basis for making some inference, or chain
of inferences, about an issue that is necessary to a verdict.” McVeigh, 153 F.3d at
1190.
As the magistrate judge recognized in her order, the ADA requires public entities
to “take appropriate steps to ensure that com munications with applicants, participants,
members of the public, and companions with disabilities are as effective as
communications with others.” 28 C.F.R. § 35.160(a)(1). This may require public
entities to “furnish appropriate auxiliary aids and services . . . to afford individuals with
disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a
service, program, or activity of a public entity.” Id. § 35.160(b)(1). “In determining what
types of auxiliary aids and services are necessary, a public entity shall give primary
consideration to the requests of individuals with disabilities.” Id. § 35.160(b)(2).
The magistrate judge correctly noted, however, that a public entity is not required
to honor a disabled individual’s choice of accommodation if it can show that “another
effective means of communication exists.” 28 C.F.R. Pt. 35, App. A, § 35.160. T hus,
the dispositive question in determining defendant’s liability is not whether defendant
provided plaintiff with her choice of auxiliary aid or service, but whether defendant’s
communication with plaintiff was as effective as defendant’s communications with
others. See Petersen v. Hastings Pub. Sch., 31 F.3d 705, 708-09 (8th Cir. 1994) (given
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evidence of improvement in children’s scholastic performance, district court did not err
in determining that signing system used by school district was an “effective means of
communication” under ADA, despite fact that signing system differed from system
preferred by plaintiffs); Tucker v. Tennessee, 539 F.3d 526, 533 (6th Cir. 2008) (once
plaintiff establishes prima facie case of discrimination under Title II, public entity may
avoid liability by showing that it “provided a reasonable means of communication that
was as effective as those received by non-disabled persons”), abrogated on other
grounds by Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015); Ulibarri v. City &
Cty. of Denver, 742 F. Supp. 2d 1192, 1215 (D. Colo. 2010) (def endants were not liable
under ADA for failure to provide plaintiff with sign language interpreter because medical
record demonstrated that plaintiff “adequately was able to communicate her medical
needs” in writing). But see Updike v. Multnomah Cty., 870 F.3d 939, 954, 957 (9th Cir.
2017) (holding that denial of request for accommodation without meaningful
assessment of individual’s limitations and comprehension abilities is sufficient to
preclude summary judgment on ADA discrimination claim); Pierce v. District of
Columbia, 128 F. Supp. 3d 250, 268-72 (D.D.C. 2015) (holding that public entity has a
threshold duty to undertake ex ante evaluation of individual’s accommodation
requirements and that failure to perform this duty constitutes discrimination, regardless
of individual’s ability to communicate effectively with public officials).3 The magistrate
3
Although the magistrate judge incorrectly characterized the inquiry as “whether
the methods of communication utilized by Defendant were ‘as effective as [Plaintiff’s]
communications with others,’” Docket No. 87 at 5, she stated and applied the correct
standard in the next paragraph of her order, see id. at 5-6 (stating that “the pertinent
question is whether Plaintiff and Defendant communicated as effectively as Defendant
communicated with hearing individuals”). Accordingly, there is no basis for concluding
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judge determined that D.F.’s testimony would be relevant to such an inquiry because it
would shed light on plaintiff’s ability to communicate with hearing individuals (e.g., the
police officers) without the assistance of a sign language interpreter. See Docket No.
87 at 6. Given the liberal standard of relevance under Rule 401, the Court cannot f ind
that the magistrate judge’s ruling was clearly erroneous or contrary to law.
Plaintiff’s citation to Pierce v. District of Columbia does not suggest a different
conclusion. In that case, the court determined that the evidence presented did not
preclude summary judgment in the plaintiff’s favor. See Pierce, 128 F. Supp. 3d at 27677. However, whether evidence is sufficient to preclude summary judgment is not the
same as whether evidence is relevant to a party’s claim or defense. See Fed. R. Civ.
P. 26(b)(1) (permitting discovery of “any nonprivileged matter that is relevant to any
party’s claim or defense,” regardless of whether information would be admissible in
evidence); Cook, 580 F. Supp. 2d at 1087 (“[E]vidence need not be conclusive or highly
probative to satisfy Rule 401 . . . .”). 4
The Court finds equally unpersuasive plaintiff’s assertion that D.F.’s testimony is
irrelevant because Northglenn violated the ADA by using plaintiff’s parents as
interpreters. See Docket No. 95 at 9. The mere fact that D.F.’s testimony is irrelevant
that the magistrate judge applied an incorrect standard in ruling on plaintiff’s motion.
4
For similar reasons, neither Updike v. Multnomah County nor Proctor v. Prince
George’s Hospital Center, 32 F. Supp. 2d 820 (D. Md. 1998), supports plaintif f’s
position. In Updike, the court rejected the defendant’s “self-serving observations that its
employees believed they were effectively communicating” with the plaintiff as
insufficient, standing alone, to support summary judgment in the defendant’s favor. 870
F.3d at 956. And the cited language in Proctor merely establishes that ignorance of the
law is not a defense to liability. See 32 F. Supp. 2d at 829.
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to this particular theory of liability does not mean that it is irrelevant to the case as a
whole. In sum, there is no basis to conclude that the magistrate judge clearly erred in
finding D.F.’s testimony relevant and admissible under Federal Rules of Evidence 401
and 402. That portion of plaintiff’s objection is overruled.
Plaintiff also argues that the magistrate judge erred by failing to exclude D.F.’s
testimony under the balancing test set forth in Federal Rule of Evidence 403. Docket
No. 95 at 10-13. Because plaintiff did not present this argument to the magistrate
judge, the Court need not consider it. See United States v. Ledford, No. 07-cv-01568WYD-KMT, 2010 WL 749843, at *8 (D. Colo. Mar. 3, 2010) (“[A]rguments not provided
to the attention of the magistrate judge will not be considered in connection with review
of nondispositive motions.” (citing Claytor v. Comput. Assocs. Int’l, Inc., 211 F.R.D. 665,
667 (D. Kan. 2003)); City of Wichita v. Aero Holdings, Inc., 192 F.R.D. 300, 302 (D.
Kan. 2000) (noting that court’s review of objection to magistrate judge’s order on nondispositive motion “is not a de novo review permitting a second shot . . . based on new
arguments”); Health Corp. of Am., Inc. v. N.J. Dental Ass’n, 77 F.R.D. 488, 492 (D.N.J.
1978) (noting that consideration of argument not presented to magistrate judge would
“undermine the rationale of the recent Magistrate Act amendments and would increase,
rather than alleviate, the burden of the trial judge in pre-trial matters”).5 In any event,
5
Plaintiff appears to frame her Rule 403 argument as an extension of her
previous argument that permitting D.F. to testify would be “annoying, embarrassing,
oppressive, harassing, and deeply traumatic” to plaintiff and her son. See Docket No.
95 at 10. But plaintiff’s prior argument addressed the standard for a protective order
under Federal Rule of Civil Procedure 26(c)(1), not the balancing analysis under
Federal Rule of Evidence 403. See Docket No. 46 at 8.
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plaintiff’s Rule 403 challenge is premature because defendant is not yet seeking to
admit D.F.’s testimony into evidence.
For the foregoing reasons, it is
ORDERED that Plaintiff’s Objection to Magistrate’s Order [Docket No. 95/public
entry Docket No. 96] is OVERRULED.
DATED February 22, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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