Innes et al v. The Board of Regents of the University System of Maryland et al
Filing
80
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/16/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOSEPH INNES, et al.
:
v.
:
Civil Action No. DKC 13-2800
:
THE BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF MARYLAND,
et al.
:
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
disability discrimination case are the following motions: (1) a
motion for partial summary judgment filed by Plaintiffs Joseph
Innes, Sean Markel, and Danny Rinas (collectively, “Plaintiffs”)
(ECF No. 58); (2) a motion to seal filed by Plaintiffs (ECF No.
59); (3) two motions to exclude testimony of Heather York and
Jeffrey B. Pelz, filed by Defendants Board of Regents of the
University System of Maryland (“the Board of Regents”) and
University
of
Maryland
College
Park
(“the
University
the
of
Maryland”) (collectively, “Defendants”) (ECF Nos. 61 & 62); (4)
a motion for summary judgment filed by Defendants (ECF No. 63);
and
(5)
a
motion
for
Plaintiffs (ECF No. 74).
leave
to
file
a
surreply
filed
by
The issues have been fully briefed,
and the court now rules, no hearing being deemed necessary.
Local Rule 105.6.
For the following reasons, both motions for
summary judgment will be denied.
Defendants’ two motions to
exclude will be denied without prejudice to refiling later in
this litigation if necessary.
Plaintiffs’ motion for leave to
file a surreply will be granted.
The motion to seal will be
granted.
I.
Background
The factual allegations are set forth in a prior memorandum
opinion and need not be repeated here.
Regents
of
University
(D.Md. 2014).
System
of
See Innes v. Board of
Maryland,
29
F.Supp.3d
566
As relevant here, Plaintiffs Dr. Joseph Innes,
Sean Markel, and Daniel Rinas are each deaf or hard of hearing.
Defendant
University
of
Maryland,
College
Park,
is
entity and recipient of federal financial assistance.
Board
of
public
Regents
entity
of
and
the
the
University
governing
System
body
of
for
a
Defendant
Maryland
the
public
is
a
University.
Plaintiffs have attended sporting events including football and
basketball games at the Capital One Field at Byrd Stadium (“Byrd
Stadium”) and the Comcast Center at the University of Maryland.
Plaintiffs
also
access
Defendants’
UMTerps.com, and within it, TerpsTV.
contend
that
Defendants
failed
athletics
website
–
In essence, Plaintiffs
to
provide
effective
communication for deaf or hard of hearing individuals at Byrd
Stadium
and
Comcast
Center
and
on
UMTerps.com.
Plaintiffs
believe that all aural content at Byrd Stadium, Comcast Center,
2
and
on
the
website
should
be
captioned
in
order
to
provide
effective communication under the disability laws, and further
assert
that
captioning
can
be
–
but
is
not
–
displayed
on
Jumbotrons, LED ribbon boards, or scoreboards located throughout
Defendants’ venues.
Plaintiffs further aver that captioning can
also be placed on pre-produced and live videos displayed on
UMTerps.com.
Additional facts will be presented in the analysis
section below.
Plaintiffs
filed
a
complaint
against
the
University
of
Maryland, the Board of Regents, and President Wallace D. Loh, in
his official capacity, on September 24, 2013.
Plaintiffs
later
submitted
a
second
amended
complaint
operative pleading here - on January 8, 2014.
The
second
amended
complaint
asserts
(ECF No. 1).
–
the
(ECF No. 33).
two
claims:
(1)
discrimination under Title II of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12131; and (2) discrimination under the
Rehabilitation Act, 29 U.S.C. § 504.
Plaintiffs
assert
that
Defendants
(ECF No. 33, at 8-10).
have
failed
to
provide
auxiliary aids and services to ensure effective communication
with individuals who are deaf or hard of hearing concerning
aural
information:
(1)
available
on
Defendants’
athletic
website; and (2) projected into the stadium bowls and concourse
areas
at
Byrd
Stadium
and
Comcast
3
Center.
(Id.
at
9-10).
Plaintiffs seek compensatory damages, declaratory judgment, and
injunctive relief.
(Id. at 10-11).
Defendants moved to dismiss the second amended complaint,
which
was
granted
in
part
and
denied
in
opinion and order issued on July 1, 2014.
part
by
memorandum
(ECF Nos. 64 & 65).
All claims against Defendant Loh were dismissed.
Plaintiffs
then moved for partial summary judgment (ECF No. 58), Defendants
opposed the motion and cross moved for summary judgment (ECF No.
63), and Plaintiffs filed a reply memorandum and opposition to
Defendants’
motion
(ECF
further
No.
memorandum
in
judgment.
(ECF No. 72).
69).
support
of
Defendants
their
filed
motion
for
a
reply
summary
Defendants also filed two motions to
exclude testimony of expert witnesses (ECF Nos. 61 & 62), and
both motions have been fully briefed.
Subsequently, Plaintiffs
moved for leave to file a surreply (ECF No. 74), Defendants
opposed the motion (ECF No. 75), and Plaintiffs replied (ECF No.
76).
Plaintiffs also filed a motion to seal (ECF No. 59), and
Defendants filed a response (ECF No. 73).
II.
Analysis
A.
Defendants’ Motions to Exclude
Defendants filed two motions to exclude testimony from two
witnesses, whom Plaintiffs have designated as experts: Heather
York and Jeffrey P. Pelz.
(ECF Nos. 61 & 62).
As will be seen,
the admissibility of this evidence need not be resolved in order
4
to
adjudicate
the
pending
motions
for
summary
judgment.
Moreover, it may well be that Plaintiffs will not seek to rely
on these witnesses later in this litigation.
Accordingly, both
motions will be denied without prejudice to refiling later in
the litigation if necessary.
B.
Cross Motions for Summary Judgment
1.
Standard of Review
Both
parties
move
for
summary
judgment.1
A
motion
for
summary judgment will be granted only if there exists no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.
See Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty
Lobby,
Inc.,
477
U.S.
242,
250
(1986).
Once
a
properly
supported motion for summary judgment is filed, the nonmoving
party is required to make a sufficient showing on an essential
element of that party’s claim as to which that party
the burden of proof to avoid summary judgment.
would have
Celotex, 477
U.S. at 322–23.
Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material
fact,
and
the
moving
1
party
is
plainly
entitled
to
While Defendants request summary judgment on all claims,
Plaintiffs request summary judgment as to liability on all
claims, as well as injunctive and declaratory relief, and a
trial to determine damages. (ECF No. 58-1, at 7).
5
judgment in its favor as a matter of law.
In
Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249 (1986), the Supreme Court
explained that, in considering a motion for summary judgment,
the “judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”
A dispute about a material fact
is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Id. at 248.
Thus,
“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”
Id. at 252.
In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”
Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting
United
States
v.
Diebold,
Inc.,
369
U.S.
654,
655
(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence
in
support
The mere existence of a “scintilla” of
of
the
non-moving
party's
case
is
sufficient to preclude an order granting summary judgment.
not
See
Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”
6
Shin v.
Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,
this
court
has
an
affirmative
obligation
to
prevent
factually unsupported claims and defenses from going to trial.
See
Drewitt
v.
Pratt,
999
F.2d
774,
778–79
(4th
Cir.
1993)
(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
When, as here, the parties have filed cross-motions for
summary
judgment,
the
court
must
consider
“each
motion
separately on its own merits ‘to determine whether either of the
parties deserves judgment as a matter of law.’”
Rossignol v.
Voorhaar, 316 F.3d 516, 523 (4th Cor. 2003) (citation omitted).
“Both motions must be denied if the court finds that there is a
genuine [dispute] of material fact.
But if there is no genuine
issue and one or the other party is entitled to prevail as a
matter of law, the court will render judgment.”
10A Wright,
Miller & Kane, Federal Practice & Procedure § 2720, at 336-37
(2014).
2.
Title II of
Rehabilitation Act
the
ADA
and
Section
504
of
the
Title II of the ADA states that “no qualified individual
with
a
disability
shall,
by
reason
of
such
disability,
be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
7
subjected to discrimination by any such entity.”2
12132.
“Discrimination”
includes
“not
42 U.S.C. §
making
reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability.”
12112(b)(5)(A);
see
also
Paulone
v.
City
of
42 U.S.C. §
Frederick,
787
F.Supp.2d 360, 372 (D.Md. 2011) (discussing the equivalence of
“reasonable
accommodations”
and
“reasonable
modifications”).
Similarly, Section 504 of the Rehabilitation Act provides that
“[n]o otherwise qualified individual with a disability . . .
shall, solely by reason of her or his disability, be excluded
from
participation
subjected
to
in,
or
be
discrimination
denied
under
the
any
receiving Federal financial assistance.”
benefits
program
of,
or
or
be
activity
29 U.S.C. § 794(a).
“Despite the general congruence of Title II of the ADA and § 504
of
the
Rehabilitation
different
‘causative
Act,
link
.
.
.
between
action’ under the two statutes.”
a
plaintiff
discrimination
must
and
show
a
adverse
Paulone v. City of Frederick,
787 F.Supp.2d 360, 370 (D.Md. 2011) (citing Baird ex rel. Baird
v. Rose, 192 F.3d 462, 469 (4th Cir. 1999)).
plaintiff
need
only
prove
discrimination
2
Under Title II, a
“by
reason
of”
Claims under Title II of the ADA and the Rehabilitation
Act can be combined for analytical purposes because the analysis
is “substantially the same.”
Doe v. Univ. of Md. Med. Sys.
Corp., 50 F.3d 1261, 1265 n.9 (4th Cir. 1995); Rogers v. Dep’t of
Health & Environmental Control, 174 F.3d 431, 433-34 (4th Cir.
1999) (stating that courts may apply Rehabilitation Act
precedent in interpreting the ADA, and vice versa).
8
disability.
42 U.S.C. § 12132.
A successful Rehabilitation Act
claim, however, requires a showing of discrimination “solely by
reason of” disability.
29 U.S.C. § 794(a).
A plaintiff seeking recovery for violation of either Title
II of the ADA or Section 504 of the Rehabilitation Act must
establish that: (1) he has a disability, (2) he is otherwise
qualified to receive the benefits of a public service, program,
or activity, and (3) he was excluded from participation in or
denied the benefits of such service, program, or activity, or
otherwise discriminated against, on the basis of his disability.
Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474, 498 (4th Cir. 2005).
Only the third element is in
dispute.
Pursuant to statutory mandate, the Department of Justice
has promulgated regulations interpreting and implementing both
Title II of the ADA and Section 504 of the Rehabilitation Act.
The regulations under the two statutes must be “consistent” with
each other, 42 U.S.C. § 12134(b), and courts may not construe
the provisions of the ADA “to apply a lesser standard than the
standards
regulations
applied
issued
Rehabilitation Act.
under
by
[the
Federal
agencies
Id. § 12201(a).3
3
at
Rehabilitation
Act]
or
the
pursuant”
to
the
The Justice Department’s
The regulations pursuant to Title II of the ADA are found
28
C.F.R.
part
35,
and
the
regulations
under
the
9
interpretive regulations elucidate the requirement of reasonable
accommodations.
Under 28 C.F.R. § 35.130(b)(7), a public entity
must “make reasonable modifications in policies, practices, or
procedures
when
the
modifications
are
necessary
to
avoid
discrimination on the basis of disability, unless the public
entity
can
fundamentally
demonstrate
activity.”
the
alter
the
making
nature
of
the
the
modifications
service,
would
program,
or
With regard to communication-related disabilities,
regulations
steps
that
to
require
ensure
public
that
entities
to
communications
“take
appropriate
with
applicants,
participants, and members of the public with disabilities are as
effective as communications with others,” id. § 35.160(a), and
to
“furnish
appropriate
auxiliary
aids
and
services
where
necessary to afford an individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, a
service, program, or activity conducted by a public entity.”
Id. § 35.160(b)(1).
“Auxiliary aids or services” are defined by both statute
and regulation.
See 42 U.S.C. § 12103(1); 28 C.F.R. § 35.104.
The regulation is more expansive.
and
services
real-time
include:
captioning,”
“open
the
and
Examples of auxiliary aids
closed
captioning,
“[a]cquisition
or
modification
Rehabilitation Act for recipients of federal
contained at 28 C.F.R. part 42, subpart G.
10
including
funding
of
are
equipment
or
actions.”
devices,”
28
C.F.R.
and
§
“[o]ther
35.104.
similar
The
services
regulation
and
governing
effective communication acknowledges that:
The type of auxiliary aid or service
necessary to ensure effective communication
will vary in accordance with 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.
§
35.160(b)(2).
Notably,
the
regulation
further
instructs:
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. (emphasis added).
Similarly, the regulations interpreting the Rehabilitation
Act
require
communications
recipients
with
of
federal
their
funding
applicants,
to
“insure
employees
that
and
beneficiaries are effectively conveyed to those having impaired
vision and hearing.”
Id. § 42.503(e).
Moreover, a “recipient
that employs fifteen or more persons shall provide appropriate
auxiliary aids to qualified handicapped persons with impaired
sensory, manual, or speaking skills where a refusal to make such
provision would discriminatorily impair or exclude participation
of such persons in a program or activities receiving Federal
financial assistance.”
Id. § 42.503(f).
11
a.
Byrd Stadium and Comcast Center
In February 2013, when the National Association of the Deaf
(“NAD”)
wrote
Plaintiffs,
to
there
the
University
were
no
devices
of
Maryland
for
the
on
deaf
behalf
or
hard
of
of
hearing to access aural content at Byrd Stadium and Comcast
Center.
(See ECF No. 63-13, February 8, 2013 letter to the
University of Maryland).
At some point, Defendants provided
captioning of aural content on hand-held devices, but the record
shows that the use of hand-held devices was intended to be a
temporary measure while Defendants began making plans to install
equipment for captioning on ribbon boards.
at 38).
(See ECF No. 63-12,
While this case was progressing, on June 24, 2014, the
University issued a purchase order for the acquisition of LED
ribbon
boards
and
associated
equipment
from
(See ECF No. 72-1; see also ECF No. 72, at 9).
Daktronics,
Inc.
As a result, it
is not at all clear: (1) whether Defendants now have implemented
services deemed adequate by Plaintiffs, and, if so, (2) whether
they could or should have done so sooner.
As will be seen, the
parties dispute when the University first received notice as to
the need to accommodate deaf or hard of hearing patrons at Byrd
Stadium
and
Comcast
Center.
Moreover,
regardless
of
when
Defendants first received notice, there is a genuine dispute as
to whether the provision of “line of sight” captioning would
have constituted a fundamental alteration or undue burden.
12
The
complaint
violations
of
contends
Title
II
of
that
the
Defendants
ADA
and
are
Section
liable
504
of
for
the
Rehabilitation Act because they do not provide captioning at
Byrd Stadium and Comcast Center via scoreboards, ribbon boards
and/or Jumbotrons, instead opting to provide captioning on handheld
devices,
communicate
which
aural
Plaintiffs
maintain
content.
The
do
record
not
effectively
evidence
indeed
establishes that the temporary hand held devices did not provide
effective communication, and in fact were recognized as such,
being merely a temporary accommodation.
Dr. Innes and Sean
Markel gave deposition testimony concerning the inadequacies of
hand-held devices.
(See ECF No. 58-11, at 8-9; see also ECF No.
58-6,
see
at
25-31);
Feldman
v.
Pro
Football,
Inc.,
579
F.Supp.2d 697, 709 (D.Md. 2008) (“Plaintiffs have represented,
and Defendants do not disagree, that assistive listening devices
are useless to these Plaintiffs.
possibly
Kevin
ensure
Anderson,
Kaplan,
the
effective
the
communication
University
assistant
Thus, these devices cannot
Athletic
athletics
with
Plaintiffs.”).
Director,
director
for
and
Joshua
facilities,
operations, and events at the University of Maryland, testified
that
hand-held
devices
were
a
temporary
solution
offered
to
Plaintiffs because the requested accommodation of captioning on
scoreboards, LED ribbon boards, and/or on Jumbotrons could not
be
implemented
in
the
time
frames
13
acceptable
to
Plaintiffs.
(See ECF No. 63-12, at 20, Kaplan depo.) (“We said let’s provide
them something while the ultimate goal is, what we said we would
do at the time when we made an offer was we would provide ribbon
boards
for
the
future”);
(see
also
ECF
No.
63-11,
at
12,
Anderson depo.).
Defendants’ legal position is that installing the ribbon
boards
will
burden,
constitute
but
they
Specifically,
motion
for
Plaintiffs
in
may
be
their
leave
fundamental
moving
in
alteration
that
reply
memorandum
file
to
indicate
a
a
that
as
of
direction
in
surreply
and
support
anyway.
of
(discussed
August
2014,
undue
their
below),
“Defendants
announced that they had made numerous upgrades to the electronic
components in Byrd Stadium and the Xfinity Center, including new
LED
display
upgrades,
additional
message
displays
at
Byrd
Stadiums, a new video control room, a new center-hung videoboard
at XFinity Center, and four message displays at XFinity Center.”
(ECF No. 76, at 3).
Plaintiffs attach as an exhibit a press
release, dated August 28, 2014, reflecting an announcement from
the University of Maryland Athletics Department regarding new
LED
display
upgrades,
featuring
closed
Moreover,
during
Kaplan,
the
ribbon
displays,
captioning.
his
(See
deposition
assistant
taken
athletics
and
ECF
in
message
No.
76-1,
April
director
displays
for
2014,
at
2).
Joshua
facilities,
operations, and events at the University of Maryland, confirmed
14
that
the
University
of
Maryland
was
in
the
process
of
transitioning to ribbon board use at Byrd Stadium and Comcast
Center.
(See ECF No. 63-12, at 20-21).
He stated that the
Athletic Department planned to purchase four new ribbon boards
and two additional ribbon boards for Byrd Stadium.
12, at 38).
(ECF No. 63-
Mr. Anderson similarly represented that he approved
the purchase of ribbon boards at Byrd Stadium and Comcast Center
“regardless of cost.”
(ECF No. 63-11, at 12).
Neither party
has advised the court, however, regarding whether any of these
advertised
changes
have
been
implemented
or
whether
aural
content at Byrd Stadium and Comcast Center already is being
captioned.
Nor have Plaintiffs advised whether the advertised
changes concerning the installation of ribbon boards are deemed
adequate
under
Title
II
of
the
ADA
and
Section
504
of
the
Rehabilitation Act.
Moreover, Plaintiffs take the position that the University
of Maryland violated the disability laws because it should have
implemented
“line
of
sight”
Plaintiffs made the request.
captioning
immediately
after
As the following discussion will
reveal, there is a genuine dispute of material fact as to when
Defendants
first
received
notice
regarding
the
need
to
accommodate deaf patrons and if, whenever they received notice,
providing “line of sight” captioning would have constituted a
fundamental alteration or an undue burden.
15
i. Notice to Defendants
Plaintiffs argue that Defendants were put on notice many
times
by
Dr.
Innes
(and
his
friend
Sandy
Ewan)
that
aural
content at Byrd Stadium and Comcast Center should be captioned
on scoreboards, ribbon boards, or Jumbotrons, but this point is
disputed.
Dr. Innes testified that over the course of five to
seven years, Mr. Ewan and he attended at least four meetings
with representatives from the University athletic center, the
first of which occurred during the design of Comcast Center.
(See
ECF
No.
58-6,
at
5-6).
Defendants
counter
that
the
University of Maryland has no record of any written requests for
accommodation prior to February 8, 2013, when it received a
letter from the NAD on behalf of Plaintiffs, and that “[t]he
sole
documentation
in
the
University’s
files
pertaining
to
requests by any of the Plaintiffs identifies Dr. Innes and it
merely
states
view.”
that
(ECF
No.
he
requested
63-1,
at
28;
seats
see
with
also
an
ECF
unobstructed
No.
63-17).
According to Defendants, the only written request to “caption
the announcements made on the public address systems on the
scoreboards,
LED
ribbon
boards,
and/or
Jumbotrons
at
Byrd
Stadium and Comcast Center” – made in February 2013 through NAD
– received prompt and serious consideration.
(ECF No. 58-19, at
3).
By letter dated March 29, 2013, the University responded:
“The
University
has
taken
into
16
consideration
your
request,
investigated this issue, reviewed our current technology, and
assessed the options available for captioning.
We believe the
best option to provide accessibility to our deaf and hard of
hearing patrons is ‘speech to text’ software, available through
YouCaption, partnering with Apple.”
(ECF No. 58-20, at 2).
Based on the foregoing, there is a genuine dispute as to when
Defendants first received notice regarding the need to caption
aural content at Byrd Stadium and Comcast Center.
ii. Fundamental Alteration and Undue Burden
Irrespective of when Defendants first received notice of
the request to caption aural content at Byrd Stadium and Comcast
Center, they assert that “line of sight” captioning would result
in a fundamental alteration and an undue burden.
Notwithstanding any other requirements in the regulations,
a public entity need not, under Title II “take any action that
it can demonstrate would result in a fundamental alteration in
the
nature
of
a
service,
program,
or
financial and administrative burdens.”
activity,
or
in
undue
28 C.F.R. § 35.164; see
also K.M. ex rel. Bright v. Tustin Unified School Dist., 725
F.3d 1088, 1097 (9th Cir. 2013) (“Title II and its implementing
regulations,
taken
together,
require
public
entities
to
take
steps towards making existing services not just accessible, but
equally
accessible to people with communication disabilities,
but only insofar as doing so does not pose an undue burden or
17
require a fundamental alteration of their programs.”) (emphasis
in original).
The public entity has the burden to prove that a
proposed action would result in “undue burden” or “fundamental
alteration.”
Section 35.164 requires that:
In those circumstances where personnel of
the public entity believe that the proposed
action
would
fundamentally
alter
the
service, program, or activity or would
result in undue financial and administrative
burdens, a public entity has the burden of
proving that compliance with this subpart
would result in such alteration or burdens.
The decision that compliance would result in
such alteration or burdens must be made by
the head of the public entity or his or her
designee after considering all resources
available for use in the funding and
operation
of
the
service,
program,
or
activity and must be accompanied by a
written
statement
of
the
reasons
for
reaching that conclusion.
Id.
(emphasis added).4
4
Plaintiffs contend that Defendants may not raise the
fundamental alteration and undue burden affirmative defenses
because “neither President Loh, the Board of Regents, nor any
other designee of Defendants has indicated that s/he has made
the decision that line-of-sight captioning would result in a
fundamental alteration or undue burden, and no ‘written
statement of reasons’ was ever sent to Plaintiffs.”
(ECF No.
69, at 17).
As Defendants argue, however, “the University did
not
categorically
reject
[]
Plaintiffs’
request
for
accommodation” at Byrd Stadium and Comcast; “the University
concluded that [] Plaintiffs’ preferred method of accommodation,
namely captioning on Jumbotrons, LED ribbon boards and/or
scoreboards presented technical and financial obstacles that
made immediate implementation infeasible.” (ECF No. 72, at 1213) (emphasis added); see, e.g., Werner v. Colorado State
University, 135 F.Supp.2d 1137, 1141 (D.Colo. 2000) (“Even
assuming that 28 U.S.C. § 35.150(a)(3) is the only basis on
which CSU could assert [the undue burden] defense, the
18
Defendants
contend
that
providing
“line
of
sight”
captioning would have altered fundamentally the athletic events
offered
at
Byrd
Stadium
and
Comcast
Center
due
to
the
administrative and financial burdens captioning would entail.
“A
modification
constitutes
a
unreasonable
to
‘an
essential
‘fundamental
aspect’
alteration’
accommodation.”
and,
Halpern
v.
of
the
program
therefore,
Wake
Forest
is
an
Univ.
Health Sciences, 669 F.3d 454, 464 (4th Cir. 2012) (citing PGA
Tour, Inc. v. Martin, 532 U.S. 661, 682-83 (2001)).
Defendants’
arguments to show fundamental alteration are misplaced.
state
that
“[t]he
fundamentally
equipment
burdensome,
and
modifications
alter
the
operations
complex[,]
(emphasis added).
and
sought
by
University’s
in
ways
costly.”
Plaintiffs
athletic
that
(ECF
are
No.
They
would
department
exceptionally
63-1,
at
20)
The proper inquiry, however, is whether “the
proposed action would fundamentally alter the service, program,
or activity.”
28 C.F.R. § 35.164.
According to Defendants,
Plaintiffs ask “fundamentally [to] alter . . . how the Athletic
Department supplies information to those attending the game.”
(ECF No. 72, at 10).
The programs or services provided at Byrd
regulation’s procedural requirements, by their terms, only apply
to instances in which a public entity refused to take a proposed
action based on the alterations or burdens that would result.
In this case, the evidence [] indicates that CSU did not refuse
to take any particular action, but rather continued to work on
various means to accommodate Werner’s needs.”).
19
Stadium
and
Comcast
Center
are
the
football
and
basketball
games; Defendants have not established how offering captioning
on
ribbon
boards,
accommodation
services.
scoreboards,
requested
here
–
or
would
on
alter
Jumbotrons
such
–
programs
the
or
As Plaintiffs argue, providing captioning in the form
requested by them would not change how either the football or
basketball programs are conducted, but merely provide access to
the audio component of the program.
Defendants also raise the undue burden affirmative defense.
Plaintiffs allegedly demanded captioning by September 2013, the
beginning of the 2013-2014 football season.
12).
(ECF No. 72, at
Defendants explain:
After receiving [] Plaintiffs’ February
8, 2013 demand, the University investigated
the options for providing captioning at Byrd
Stadium
and
Comcast
Center.
The
University’s
investigation
revealed
that
several
factors
made
[]
Plaintiffs’
preferred remedy, captioning on the existing
video displays, infeasible.
First, there are enormous technical
obstacles to getting a reliable signal to a
video display.
Byrd Stadium and Comcast
Center share a single, aging control room
that is beyond its useful life.
[]
This
has made it highly unreliable and placing
additional demands on the system threatens
more frequent interruptions in service.
[]
Parts for repairs are extremely hard to
find.
The control room’s current closed
captioning encoder and its phone line for
external operation by closed captioning
companies
are
unreliable
and
need
replacement. [] Also, the fiber connection
20
system used currently would require the
installation
of
additional
systems
to
support a dedicated closed caption video
board feed to Byrd Stadium.
Second, the present video displays are
not adequate for displaying captioning.
[]
The relatively small size of the present
video boards, and the amount of physical
space captioning would require makes their
use impractical. [] Captioning would black
out a full one-third of the present screen.
[]
This would cut off the space presently
used for live-action video and result in
fans missing much of the action on the
video.
[]
It would also adversely impact
video
space
currently
used
for
vital
advertising that helps to defray the cost of
athletic department operations.
(ECF No. 63-1, at 20-21 (emphasis added); see also ECF Nos. 6310, at 22-25 & 63-12, at 12).
Furthermore,
boards
in
$700,000,
a
according
single
and
to
stadium
“[t]his
Mr.
would
[figure]
Kaplan,
cost
does
installing
between
not
ribbon
$400,000
include
and
ancillary
requirements such as providing power, providing a working signal
(i.e., installing fiber cable), or providing all the necessary
modern equipment to run it.”
12, at 5).
(ECF No. 63-1, at 21; ECF No. 63-
Mr. Kaplan testified that the budgetary estimate for
installing ribbon boards in both stadiums and replacing all the
video
equipment
to
run
the
boards
was
approximately
$3.75
million, $1.5 million of which represented the cost of updating
the videos.
(ECF No. 63-12, at 21).
Defendants contend that
the cost must be balanced “against the financial realities of
21
the University’s athletic department,” and not the as a whole.
(ECF
No.
63-1,
at
22).
According
to
Mr.
Anderson,
the
University was operating under a deficit, which made immediate
implementation infeasible:
Q: What’s the money issue?
A: Well, right now the ACC [Atlantic Coast
Conference] has withheld $22 million of ours
and that we’re looking at it will probably
be 30 million and we’re in, we’re in
litigation now with them and so that plus
inheriting a structural deficit that was
going on for five years before I came here
plus we have debt on new buildings that
happened before I was here that there’s a
lot of things that we need to take care of,
and so it’s just a matter of balance, and
this is a priority and, you know, we’re
moving forward where, you referenced it
before, it’s not a budgeted item but we have
to find it somewhere, so we’re probably
robbing Peter to pay Paul but we know that
this is important, that we have to do it.
Q: Thank you.
And for the timing, what is
the timing issue, could you explain that?
A: Well, it’s just going through the
procurement.
You know, I mean if, if we
could have signed a contract yesterday and
just gone through and not have to go through
any of the . . . policies and procedures
that we’re all held to, I would have done it
yesterday.
(ECF No. 63-11, at 24) (emphasis added).
Plaintiffs, on the other hand, reference testimony from Mr.
Kaplan
that
although
the
video
equipment
would
need
to
be
replaced to allow for captioning on ribbon boards, the video
22
equipment would serve other purposes in addition to captioning.
(ECF No. 63-12, at 38).
overstate
the
extent
Plaintiffs also believe that Defendants
of
the
University’s
financial
hardship,
referencing anticipated future revenue increases stated in the
Fiscal Year 2014 budget overview for the University of Maryland.
(See
ECF
No.
69-3).
The
Fiscal
Year
2014
budget
overview
states:
In November 2012, the financial picture
looked a lot brighter when UMCP accepted an
invitation to join the Big Ten on July 1,
2014.
This will significantly enhance
future revenues by $100 million in the first
six years according to Sports Illustrated.
(Id.
at
35).
The
department
or
the
increasing
in
the
fact
that
University
future,
the
of
budget
Maryland
however,
does
for
as
a
not
the
athletic
whole
may
establish
be
that
replacing all of the video equipment to install ribbon boards at
Byrd Stadium and Comcast Center would not have constituted an
undue burden when Plaintiffs first requested this accommodation.
Indeed,
the
budget
overview
further
“instituted a $52 million exit fee.”
that
Defendants
installation
from
have
now
states
(Id.).
contracted
Daktronics,
Inc.
and
that
the
ACC
Moreover, the fact
for
ribbon
board
purportedly
spent
approximately $3.75 million on this endeavor does not establish
that this could or should have been done earlier.
The fact that
the University of Maryland may now have “considerable resources
23
to draw from to fund the implementation of a proper captioning
system,” (ECF No. 69, at 20-21), does not establish as a matter
of law that those same resources were available earlier and in
the time frames demanded by Plaintiffs, and that the interim
measure of providing captioning on hand-held devices violated
disability laws.
Based
material
on
the
fact
captioning,”
notice,
foregoing,
as
to
whether
regardless
would
have
there
of
a
genuine
providing
when
constituted
is
“line
Defendants
an
undue
dispute
of
first
burden
of
sight
received
and
whether
Defendants violated Title II of the ADA and Section 504 of the
Rehabilitation
Act
by
not
implementing
Plaintiffs’
requested
accommodation when the request was made.
b. UMTerps.com
Plaintiffs argue that Defendants violate Title II of the
ADA and Section 504 of the Rehabilitation Act by failing to
provide
website,
effective
communication
UMTerps.com.
(ECF
on
No.
the
58-1,
University’s
at
30).
athletic
Plaintiffs
contend that “[a]s with the athletic events, the University is
required to makes its web programming accessible to individuals
who
are
program,
deaf.”
or
(Id.).
activity
of
accessible to deaf users.”
“Because
a
public
UMTerps.com
entity,
(Id. at 31).
24
it
is
a
must
service,
be
made
Defendants
do
not
dispute
that
deaf
individuals
cannot
access aural content on UMTerps.com, but contend that the ADA
does not require captioning of Internet content.
at
32).
The
court
need
not
decide
that
(ECF No. 63-1,
question,
however,
because Defendants do not argue that the Rehabilitation Act is
inapplicable to the website.
Section 504 states that “[n]o
otherwise qualified individual with a disability in the United
States [] shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity
receiving Federal financial assistance.”
(emphasis added).
29 U.S.C. § 794(a)
“Program or activity” is defined as all of
the operations of “a college, university, or other postsecondary
institution, or a public system of higher education.”
794(b)(2)(A).
Id. §
Defendants do not dispute that the aural content
streamed on UMTerps.com is one of their programs or activities.
Defendants
Plaintiffs
with
argue
that
respect
to
“[t]he
the
modifications
athletic
sought
department
web
by
site
would fundamentally alter the University’s athletic department
equipment
burdensome,
Defendants
and
operations
complex
state
and
that
in
ways
costly.”
UMTerps.com
that
(ECF
is
are
No.
unlike
exceptionally
63-1,
other
at
34).
commercial
websites because much of the content is produced by student
volunteers from the Journalism Department at the University of
25
Maryland
and
the
teaching tool.”
website
“has
been
(Id. at 34-35).
consciously
used
as
a
Defendants also believe that
captioning of pre-produced events would substantially alter the
University’s program by impeding the ability to produce timely
content; “[t]he captioning of pre-produced material has to be
done
by
a
vendor
and
sending
the
material
out
necessarily
introduces delay that makes the production of timely video less
feasible.
[]
This
will
mean
the
loss
of
some
student
opportunities to produce video simply because the window for
completion is insufficient.”
(Id. at 36).
Mr. Kaplan explained that UMTerps.com displays pre-produced
and live videos.
He explained that a company called NeuLion
maintains the website.
Mr. Anderson stated: “NeuLion maintains
our website and so we give them the information and they do the
design and upkeep.”
(ECF No. 63-11, at 11) (emphasis added).
Mr. Kaplan explained that the University of Maryland would have
to provide the captioned content and NeuLion would display it.
Mr. Kaplan also stated during his deposition that captioning
pre-produced
events
may
change
the
University’s
“thought
process” because the University likely will need to contract
with a vendor to provide captioning on the website and it may
take more time to post captioned content of pre-produced events.
(ECF No. 63-12, at 33).
26
The
evidence
determine
shows
whether
captioning
that
the
University
the
content
current
equipment
for
pre-produced
and
is
will
need
compatible
live
events
to
with
and
the
specific functionalities that any prospective vendor must have.
Testimony also suggests that captioning content may add some
delay
to
the
UMTerps.com.
failed
to
process
(See
show
of
ECF
that
posting
No.
63-23,
captioning
pre-produced
at
aural
21).
videos
Defendants
content
on
on
have
UMTerps.com
would fundamentally alter the nature or mix of the service,
however (i.e., display of pre-produced or live video content).
See, e.g., Ball v. AMC Entertainment, Inc., 246 F.Supp.2d 17, 25
(D.D.C.
2003)
compatible
(“Given
films
can
that
be
the
provided
closed
to
captions
deaf
for
individuals
RWCduring
normal screening of those films, installation of RWC can be
required under the ADA because it would not change the nature of
the service supplied by Defendants – screening first run movies
to
the
public.”).
That
the
University
will
have
to
“think
through” the process for displaying pre-produced and live videos
on TerpsTV in order to make the aural content accessible to the
deaf community does not establish that the program or service
would be fundamentally altered.
That
does
modification
Defendants
not
would
end
be
represent
the
an
that
inquiry,
undue
“the
27
however.
burden
must
website
Whether
be
the
addressed.
operates
on
a
shoestring.”
Mr.
Kaplan
captioning
(ECF No. 63-1, at 35).
could
identify
pre-produced
or
Neither Mr. Anderson nor
specific
live
costs
events
to
associated
post
on
with
TerpsTV.
(See ECF No. 63-12, at 38 (“Q: And just to clarify, you don’t
have any estimate available yet on how much it will cost to
provide captioning on umterps.com, correct? A: I do not.”)).
Mr. Kaplan stated that current equipment may need to replaced:
A: So the equipment is antiquated. Would it
have to all be replaced or could just a
couple of pieces be replaced?
I’ll be
honest, I don’t know.
I don’t know.
The
cameras would have to be replaced because
the cameras on the digital platform would
not give a digital feed, or you could downconvert it, so how that would look, is it
going to meet our desire? We don’t want to
give a half attempt at it, we want to go in
full board and make sure it’s going to look
clear for all our constituents, so you have
to basically find out what equipment needs
to be purchased and who’s going to purchase
it, is it us or is the School of Journalism,
and if it’s us is the School of Journalism
going to allow us to use their equipment in
conjunction
with
our
basically
newly
purchased equipment if it happens to be
integrated.
In conjunction with that[,]
there’s still the whole Big Ten piece.
We
don’t have a definitive answer on what games
we are going to be broadcasting on umterps.
So like I said, when we’re going to put it
out to bid we want it to be specific.
(ECF No. 63-12, at 34) (emphases added).
Gabriel Unterman, the
director of multimedia production at the University of Maryland,
explained
that
as
equipment
currently
for
live
used,
events,
the
28
NewTek
the
key
piece
Tricaster,
of
likely
the
is
incompatible
with
equipment
that
would
be
needed
to
enable
captioning:
Q: Do you know what, if any, administrative
capacity on the university side would be
required to caption website videos? []
A: So currently the way that the system
being used to stream live content on
TerpsTV, as I mentioned before . . . the
athletic department uses a system called a
tricaster made by this company called NewTek
and it was purchased maybe three years ago,
and that, [] in order to caption using that
piece of equipment, it’s very -- it’s almost
impossible because that piece, when [] that
piece of equipment was purchased it didn’t –
captioning really wasn’t an option for live
streaming at that time, so anything now
that’s
available,
if
it’s
software
or
equipment, cannot interact with that piece
of equipment.
So you would have to buy a
whole new system to possibly interact with
any captioning software that’s out there.
So now once you have the software is one
thing, now you need a computer to house the
software, then you have the computer and now
you
need
an
encoder
or
a
data
link
associated with it to then tie into the []
device[.]
. . .
There’s a piece of
equipment that kind of can do it but it’s
not that great, but it’s very cost -- and
we’re not talking about a ten-dollar piece
of equipment.
In our world in video, you
know, things, if it’s a thousand dollars,
it’s cheap, you know. So it’s [] a process
that really just hasn’t been established yet
and it hasn’t been tested, so . . . it’s
very expensive to even try it.
(ECF No. 63-23, at 19) (emphases added).
Plaintiffs emphasize that Defendants have not provided a
dollar figure associated with transitioning to captioning pre-
29
produced and live events and argue that Defendants ignore “the
substantial
revenue
that
having the website.”
the
University
draws
(ECF No. 69, at 34).
Ball, 246 F.Supp.2d at 26, applies here.
by
virtue
of
The analysis in
In Ball, defendants
argued that installation of RWC for all the movie screens in the
DC area would be unduly burdensome given their “enormous annual
losses.”
from
that
Plaintiffs in Ball provided a cost estimate different
offered
by
defendants
and
further
argued
that
defendants’ “costs would be offset by tax benefits and increased
revenues from ticket sales to deaf patrons and their families
and friends.”
Id.
Plaintiffs further argued in that case that
“[d]efendants’
financial
resources
are
more
than
adequate
to
cover RWC installation costs given AMC’s recent purchase of two
movie
chains
for
more
than
$167
million
purchase of a movie chain for $440 million.”
and
Loews’
recent
Judge Kessler held
that based on this evidence, “[t]here are clearly material facts
in genuine dispute as to the undue burden claim, and therefore,
summary judgment is not appropriate on this issue.”
conclusion is warranted here.
The same
There is a genuine dispute of
material fact as to whether captioning live and pre-produced
content on UMTerps.com would be unduly burdensome.
both
motions
for
summary
judgment
will
be
denied
Accordingly,
as
failure to accommodate claims pertaining to UMTerps.com.
30
to
the
c. Compensatory Damages, Declaratory & Injunctive Relief
Plaintiffs stated in their opposition to Defendants’ motion
to dismiss that they “abandon any claim for money damages for
the University’s failure to caption its website.”
at
29
n.9);
(see
also
ECF
No.
69,
at
38
(ECF No. 38,
n.100
(“Because
Plaintiffs have previously clarified that they are not seeking
[money]
moot.)).
damages
[concerning
the
website],
this
argument
is
Accordingly, Plaintiffs seek compensatory damages only
as to their failure to accommodate claim concerning Byrd Stadium
and
Comcast
Center.
With
the
denial
of
summary
judgment,
however, it is premature to address questions of damages or
other remedies.
C.
Surreply
Plaintiffs moved for leave to file a surreply and included
a proposed surreply.
(ECF No. 74).
Local Rule 105.2.a states:
“[u]nless otherwise ordered by the Court, surreply memoranda are
not permitted to be filed.”
The court may permit a surreply
when a party would not otherwise have an opportunity to respond
to arguments raised for the first time in the opposing party’s
reply.
See Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md.
2003).
Plaintiffs wish to file a surreply limited to “responding
to Defendants’ newly produced piece of evidence, attached as
Exhibit 22 to Defendants’ reply.”
31
(ECF No. 74, at 1).
Exhibit
22, filed with Defendants’ reply memorandum, is the purchase
order,
dated
June
24,
2014,
showing
that
the
University
of
Maryland purchased “center and auxiliary boards hung in Comcast
and Byrd Stadium.”
(ECF No. 72-1).
The order amount is for
$3.75 million.
Mr.
Kaplan
provided
deposition
cost of ribbon board installation.
the
admissibility
of
this
testimony
estimating
the
After Plaintiffs challenged
deposition
testimony,
Defendants
attached the purchase order from Daktronics, Inc. evidencing the
purported cost of ribbon board installation.
Considering the
rapidly evolving factual developments in this case and the fact
that Plaintiffs did not have an opportunity to address this new
document submitted by Defendants, the motion for leave to file a
surreply will be granted.
D.
Motion to Seal
Plaintiffs filed one exhibit under seal, (Exhibit 24; ECF
No. 60-1), and redacted a brief portion of their memorandum in
support
of
partial
summary
judgment
exhibit, (see ECF No. 58-1, at 21).5
which
references
this
Although Plaintiffs’ motion
is labeled as a motion to seal, they represent that Defendants
designated
Exhibit
24
as
confidential
during
discovery,
and
Plaintiffs wish to unseal exhibit 24 and publish on the record
5
Plaintiffs filed on the record a redacted version of the
memorandum in support of summary judgment (ECF No. 58-1), and
filed Exhibit 24 under seal (ECF No. 60-1).
32
an unredacted memorandum.
(See ECF No. 59).
response
motion,
to
Plaintiffs’
remain under seal.
contract
between
Defendants filed a
requesting
that
Exhibit
24
Defendants explain that Exhibit 24 is a
NeuLion
to
and
services
related
the
website.
the
University
University’s
of
Maryland
Athletics
for
Department
Defendants contend:
Among other provisions, many sections of the
contract
document
list
confidential
financial guarantees made by Neulion to the
University and vice versa. This information
is
not
known
to
outsiders,
is
held
confidential
by
both
parties
to
the
contract, and is valuable to the business of
NeuLion
and
the
future
bargaining
capabilities
of
the
University.
Accordingly, the contract is a trade secret,
Md. Code Ann., Com. Law § 11-1201 et seq.,
and should be protected from disclosure.
Given the frequency in which confidential
information
appears
in
the
contract,
alternatives to sealing will be insufficient
to protect the parties to the agreement and
the interests of both parties to the
contract will be irreparably harmed.
(ECF No. 73, at 2); see, e.g., Pittson Co. v. United States, 368
F.3d 385, 406 (4th Cir. 2004) (affirming decision to seal certain
“confidential, proprietary, commercial, or financial data” that
was produced under a protective order)
The
summary
portions
judgment
of
that
Plaintiffs’
have
been
memorandum
redacted
in
refer
business information contained in Exhibit 24.
support
to
of
sensitive
Moreover, the
court has not relied on Exhibit 24 in adjudicating the motions
33
for
summary
reference
exhibit.
judgment
any
and
purportedly
this
memorandum
confidential
opinion
does
information
from
not
this
Accordingly, the motion to seal will be granted.
III. Conclusion
For the foregoing reasons, Plaintiffs’ motion for partial
summary judgment will be denied. Defendants’ motion for summary
judgment will be denied.
Defendants’ two motions to exclude
expert testimony will be denied without prejudice to refiling at
a later point in this litigation if necessary.
motion for leave to file a surreply will be granted.
to seal will be granted.
Plaintiffs’
The motion
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
34
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