Johnston et al v. Intermountain Healthcare et al

Filing 82

MEMORANDUM DECISION AND ORDER granting 54 Motion for Summary Judgment in favor of Defendant ASL Communications: Plaintiffs' claims against ASL Communications are dismissed with prejudice. The prevailing party is entitled to an award of its reasonable attorneys' fees, to be determined by subsequent motion. Signed by Judge David Nuffer on 8/13/19 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ZACH JOHNSTON, and BARBIE
JOHNSTON,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT

v.
INTERMOUNTAIN HEALTHCARE,
INTERMOUNTAIN NORTH OGDEN
CLINIC, MCKAY-DEE HOSPITAL, ASL
COMMUNICATIONS, INSYNC
INTERPRETERS, and ROES I-X,

Case No. 1:18-cv-00003-DN-DBP
District Judge David Nuffer

Defendants.

Plaintiffs Zach and Barbie Johnston assert several claims against Defendant ASL
Communications (“ASLC”) arising from multiple hospital visits at which the Johnstons allegedly
requested, but were denied or refused accommodation for their hearing-impaired status. 1 ASLC
seeks summary judgment on the Johnstons’ claims. 2
Because the undisputed material facts demonstrate that ASLC did not own, lease, or
operate a place of public accommodation, ASLC is entitled to summary judgment on the
Johnstons’ claims under the Americans with Disabilities Act (“ADA”). 3 Additionally, because
the Johnstons fail to present facts or evidence that ASLC ever denied or refused their requests for
an American Sign Language interpreter, ASLC is entitled to summary judgment on the

1

Second Amended Complaint (“Complaint”) ¶¶ 21-107, docket no. 51, filed Nov. 28, 2018.

2

ASL Communications’ Motion for Summary Judgment (“Motion for Summary Judgment”), docket no. 54, filed
Mar. 26, 2019.
3

Complaint ¶¶ 49-57, 67-89.

Johnstons’ claims under the Rehabilitation Act and the Patient Protection and Affordable Care
Act (“ACA”). 4 And because the Johnstons fail to present facts or evidence that ASLC owed
them a duty of professional care or breached that duty, ASLC is entitled to summary judgment
on the Johnstons’ claim for professional negligence. 5 Therefore, ASLC’s Motion for Summary
Judgment 6 is GRANTED.

Contents
UNDISPUTED MATERIAL FACTS ............................................................................................ 3
DISCUSSION ................................................................................................................................. 4
The Johnstons’ ADA claims fail because ASLC did not own, lease, or operate a place
of public accommodation ........................................................................................ 5
The Johnstons’ Rehabilitation Act and ACA claims fail because they did not any
present facts or evidence that ASLC ever denied or refused their requests for
an American Sign Language interpreter ................................................................. 8
The Johnstons’ professional negligence claim fails because they did not present any
facts or evidence that ASLC owed them a duty of professional care or breached
that duty .................................................................................................................. 9
ASLC is not entitled to an award of attorneys’ fees under Utah Code Ann. § 78B-5825......................................................................................................................... 11
ASLC is entitled to an award of attorneys’ fees as the prevailing party on the
Johnstons’ ADA claims ........................................................................................ 12
ORDER ......................................................................................................................................... 14

4

Id. ¶¶ 58-66, 90-102.

5

Id. ¶¶ 103-107.

6

Docket no. 51, filed Nov. 28, 2018.

2

UNDISPUTED MATERIAL FACTS 7
1.

ASLC does not own, lease, or operate a “place of accommodation,” as defined in

42 U.S.C. § 12181(7) and 28 C.F.R. § 36.104. 8
2.

Neither of the Johnstons have ever made a request for services directly to ASLC. 9

3.

In each instance referenced in the Complaint where an interpreter was requested,

but no interpreter showed up, the Johnstons’ requests were made to a third party, not directly to
ASLC. 10
4.

In each instance referenced in the Complaint where an interpreter was requested,

but no interpreter showed up, the Johnstons do not know whether their request was conveyed to
ASLC. 11
5.

According to Barbie Johnston, Intermountain Healthcare’s (“IHC”) is responsible

for conveying requests for a live interpreter to ASLC. 12
6.

In instances where an interpreter allegedly failed to show up to a scheduled

appointment, the Johnstons are unsure which interpreters cancelled appointments or whether
those interpreters were associated with ASLC. 13
7.

Neither of the Johnstons have ever been to ASLC’s offices. 14

7

The following Undisputed Material Facts are taken from the parties’ briefing on ASLC’s Motion for Summary
Judgment. Motion for Summary Judgment ¶¶ 1-13 at 4-5; Amended Memorandum in Opposition to Motion for
Summary Judgment (“Response”) ¶¶ 1-6 at 5-6, docket no. 58, filed Apr. 26, 2019. Those facts, or portions thereof,
identified in the parties’ briefing that do not appear in these Undisputed Material Facts are either disputed; not
supported by the evidence; not material; or are not facts, but rather, are characterization of facts or legal argument.
8

Motion for Summary Judgment ¶ 1 at 4.

9

Id. ¶ 2 at 4.

10

Id. ¶ 3 at 4.

11

Id. ¶ 4 at 4.

12

Id. ¶ 5 at 4.

13

Id. ¶ 6 at 5.

14

Id. ¶ 7 at 5.

3

8.

Neither of the Johnstons have ever visited ASLC’s website. 15

9.

With the exception of a single telephone call made by Zach Johnston to complain

about a specific interpreter (which had nothing to do with the Johnstons’ claims in this case),
neither of the Johnstons have ever called ASLC. 16
10.

Outside of having interpreters show up at appointments not related to the

Johnstons’ claims in this case, the Johnstons have had no interactions with ASLC. 17
11.

The Johnstons have never entered into any agreements with ASLC. 18

12.

The Johnstons are unaware of ASLC’s policies and procedures. 19

13.

Besides interpreters allegedly failing to show up, the Johnstons have no

complaints about the services provided by ASLC. 20
14.

ASLC has a contract with IHC to provide American Sign Language interpreters at

IHC facilities. 21
DISCUSSION
Summary judgment is appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 22 A factual dispute is genuine when
“there is sufficient evidence on each side so that a rational trier of fact could resolve the issue

15

Id. ¶ 8 at 5.

16

Id. ¶ 9 at 5.

17

Id. ¶ 10 at 5.

18

Id. ¶ 11 at 5.

19

Id. ¶ 12 at 5.

20

Id. ¶ 13 at 5.

21

Response ¶ 1 at 5; ASL Communications’ Reply in Support of Motion for Summary Judgment (“Reply”) at 4,
docket no. 59, filed May 6, 2019.
22

FED. R. CIV. P. 56(a).

4

either way” 23 or “if a reasonable jury could return a verdict for the nonmoving party.” 24 A fact is
material if “it is essential to the proper disposition of [a] claim.” 25 And in ruling on a motion for
summary judgment, the factual record and all reasonable inferences drawn therefrom are viewed
in a light most favorably to the nonmoving party. 26
The moving party “bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” 27
The movant “need not negate the nonmovant’s claim, but need only point out . . . that there is an
absence of evidence to support the nonmoving party’s case.” 28 If the moving party carries this
initial burden, the nonmoving party “may not rest upon mere allegations or denials of [the]
pleading[s], but must set forth specific facts showing that there is a genuine issue for trial as to
those dispositive matters for which it carries the burden of proof.” 29 “The mere existence of a
scintilla of evidence in support of the [nonmovant’s] position will be insufficient to defeat a
properly supported motion for summary judgment.” 30
The Johnstons’ ADA claims fail because ASLC did not
own, lease, or operate a place of public accommodation
The Johnstons assert four claims against ASLC for violation of the ADA: (1) excluding
from participation in or denying the benefits of the services, programs, or activities of a public
entity; (2) disparate treatment by reason of disability; (3) discriminatory policies, practices, and

23

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).

24

Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994) (internal quotations
omitted).

25

Adler, 144 F.3d at 670.

26

Id.

27

Id. at 670-71.

28

Universal Money Ctrs., Inc., 22 F.3d at 1529 (internal quotations omitted).

29

Id. (internal quotations and citations omitted; emphasis in original).

30

Id. (internal quotations omitted).

5

procedures; and (4) discriminatory administrative methods. 31 However, the ADA expressly
provides that its requirements and obligations apply only to “any person who owns, leases (or
leases to), or operates a place of public accommodation.” 32 And it is undisputed that ASLC does
not own, lease, or operate a “place of accommodation,” as defined by the ADA. 33 The Johnstons
nevertheless argue that because the ADA applies to IHC, and because ASLC has an exclusive
contract with IHC to provide American Sign Language interpreters at IHC’s facilities, the ADA
must apply to ASLC. 34 The Johnstons’ argument fails for several reasons.
First, the Johnstons argument is premised on a misreading of the ADA. The ADA
contains provisions that prohibit various discriminatory activities “directly, or through
contractual, licensing, or other arrangements.” 35 But contrary to the Johnstons’ interpretation,
these references to contractual arraignments do not alter or expand the class of persons to which
the ADA’s requirements and obligations apply. Rather, “[t]hose clauses make clear . . . that their
prohibitions cannot be avoided by means of contract[.]”36 The ADA’s requirements and
obligations apply only to the person who owns, leases (or leases to), or operates a place of public
accommodation. 37
Second, the Johnstons present no facts or evidence showing that the ADA’s requirement
and obligations apply to IHC. Nor do they present any evidence that ASLC’s contract with IHC

31

Complaint ¶¶ 49-57, 67-89.

32

42 U.S.C. § 12182(a); see also 28 C.F.R. § 36.201(a).

33

Undisputed Material Facts, supra, ¶ 1.

34

Response at 9-12, 13-15.

35

42 U.S.C. §§ 12182(b)(1)(A)(i)-(iii); see also id. § 12182(b)(1)(D).

36

PGA Tour, Inc. v. Martin, 121 S.Ct. 1879, 1891 (2001).

37

42 U.S.C. § 12182(a); see also 28 C.F.R. § 36.201(a).

6

is an “exclusive contract” for the provision of American Sign Language interpreters at IHC
facilities.
Finally, the Johnstons do not identify any language in ASLC’s contract with IHC that
suggests ASLC is an agent of IHC, or that it assumed IHC’s obligations under the ADA
regarding accommodations to the hearing impaired. Indeed, the contract expressly states
otherwise:
This Agreement does not constitute the hiring of [ASLC] or its Staff by [IHC].
This Agreement shall not be construed as a partnership. Neither [ASLC] nor
[IHC] shall be liable for any obligation incurred by the other. It is the parties’
intention that so far as shall be in conformity with the law, [ASLC] and its Staff
shall be independent contractors and not [IHC]’s employees. In conformity
therewith, [ASLC] shall retain sole and absolute discretion and judgment in the
manner and means of providing Services to [IHC] at Facility. However, [ASLC]
shall comply with all policies, rules, and regulations of [IHC] and Facility in
connection with provision of the Services. All Services rendered by [ASLC] shall
be rendered in a competent, efficient, and satisfactory manner and in strict
accordance with the currently approved methods and practices in the field. [IHC]
assumes professional and administrative responsibility for the Services rendered
only to the extent that: 1) [IHC] is responsible for assuring itself that [ASLC] is
qualified to render the Services; and 2) [ASLC] is satisfying all the obligations set
forth in this Agreement. 38
Because the undisputed material facts demonstrate that ASLC did not own, lease, or
operate a place of public accommodation, 39 the ADA’s requirements and obligations do not
apply to ASLC. 40 Therefore, ASLC is entitled to summary judgment on the Johnstons’ ADA
claims. 41

38

Reply at Exhibit E Clinical Services Agreement.

39

Undisputed Material Facts, supra, ¶ 1.

40

42 U.S.C. § 12182(a); see also 28 C.F.R. § 36.201(a).

41

Complaint ¶¶ 49-57, 67-89.

7

The Johnstons’ Rehabilitation Act and ACA claims fail because they
did not any present facts or evidence that ASLC ever denied or refused
their requests for an American Sign Language interpreter
The Johnstons assert claims against ASLC under the Rehabilitation Act and the ACA. 42
Specifically, the Johnstons allege ASLC discriminated against them by refusing and denying the
Johnstons’ requests for American Sign Language interpreters. 43 However, the Johnstons fail to
present facts or evidence to support their allegations.
It is undisputed that the Johnstons did not make a request for services directly to ASLC. 44
Rather, in each instance where an interpreter was requested and no interpreter showed up, the
Johnstons’ made their requests to a third party45—presumably, IHC. It is also undisputed that the
Johnstons do not know whether their requests for interpreters were conveyed to ASLC. 46 And it
is undisputed that in instances where an interpreter failed to show up to a scheduled appointment,
the Johnstons are unsure which interpreters cancelled appointments or whether those interpreters
were associated with ASLC. 47
In the face of these undisputed facts, the Johnstons assert they had a good faith belief that
IHC had a contract with ASLC and would convey their requests to ASLC. 48 The Johnstons argue
that “in the eyes of contract law and the ADA,” it is irrelevant whether IHC conveyed the

42

Id. ¶¶ 58-66, 90-102.

43

Id. ¶¶ 61-62, 94-95, 98.

44

Undisputed Material Facts, supra, ¶ 2.

45

Id. ¶ 3.

46

Id. ¶ 4.

47

Id. ¶ 6.

48

Response at 12.

8

Johnstons’ requests to ASLC. 49 And they maintain that because IHC is liable for failing to
provide effective interpreters, ASLC is also liable. 50
The Johnstons cite no legal authority to support their arguments. Nor do they—or can
they—point to any language in ASLC’s contract with IHC to support their arguments. The
contract plainly states that ASLC is an independent contractor, and that it is not liable for any
obligation incurred by IHC. 51 And regardless, the Johnstons present no facts or evidence
showing that IHC is liable for refusing or denying their requests for interpreters. The allegations
in the Johnstons’ Complaint, alone, are insufficient to avoid summary judgment. 52
Based on the undisputed material facts, and because the Johnstons fail to present facts or
evidence that ASLC ever denied or refused the Johnstons’ requests for an American Sign
Language interpreter, ASLC is entitled to summary judgment on the Johnstons’ Rehabilitation
Act and ACA claims. 53
The Johnstons’ professional negligence claim fails because they
did not present any facts or evidence that ASLC owed them
a duty of professional care or breached that duty
The Johnstons assert a claim for professional negligence against ASLC. 54 “[A] client may
be injured if a professional fails to fulfill [its] responsibilities to [the client].” 55 A professional
owes its clients a duty to meet the standard of competence and care possessed by professional

49

Id. at 13, 16-17.

50

Id.

51

Reply at Exhibit E Clinical Services Agreement.

52

Universal Money Ctrs., Inc., 22 F.3d at 1529.

53

Complaint ¶¶ 58-66, 90-102.

54

Id. ¶¶ 103-107.

55

Steiner Corp. v. Johnson & Higgins of California, 996 P.2d 531, 532 (Utah 2000).

9

men and women in the locality, and is negligent when a breach of that duty causes injury to the
client. 56
The Johnstons argue that because ASLC has an exclusive contract with IHC to provide
American Sign Language interpreters at IHC’s facilities, ASLC was IHC’s agent and owed the
Johnstons a duty of professional care. 57 The Johnstons further argue that ASLC breached its duty
of professional case when it failed to provide certified and qualified interpreters necessary for
effective communication during their hospital visits. 58 However, the Johnstons fail to present
facts or evidence to support their professional negligence claim.
The Johnstons fail to present evidence that ASLC’s contract with IHC was an exclusive
contract. The contract also plainly states that ASLC is an independent contractor and is not liable
for any obligation incurred by IHC. 59 Additionally, it is undisputed that the Johnstons did not
directly request services from ASLC, 60 and they do not know whether their requests for
interpreters were conveyed to ASLC. 61 It is also undisputed that the Johnstons do not know
whether the interpreters that cancelled appointments were associated with ASLC. 62 And it is
undisputed that the Johnstons have no complaints about the services provided by ASLC, besides
interpreters allegedly failing to show up to appointments. 63 Moreover, the Johnstons do not
dispute that they had no interactions with ASLC in relation to the hospital visits that give rise to

56

Nauman v. Harold K. Beecher & Assocs., 467 P.2d 601, 615 (Utah 1970).

57

Response at 17-19.

58

Id.

59

Reply at Exhibit E Clinical Services Agreement.

60

Undisputed Material Facts, supra, ¶¶ 2-3.

61

Id. ¶ 4.

62

Id. ¶ 6.

63

Id. ¶ 13.

10

their claims in this case. 64 And the Johnstons do not dispute that they have never been to ASLC’s
offices or visited ASLC’s website, 65 or that they have never entered into any agreements with
ASLC. 66
Based on the undisputed material facts, the Johnstons were not clients of ASLC. The
Johnstons fail to present facts or evidence that ASLC owed the Johnston’s a duty of professional
care. And the Johnstons fail to present facts or evidence that ASLC breached any duty of care in
relation to the Johnstons’ hospital visits. Therefore, ASLC is entitled to summary judgment on
the Johnstons’ professional negligence claim. 67
ASLC is not entitled to an award of attorneys’ fees
under Utah Code Ann. § 78B-5-825
ASLC requests an award of attorneys’ fees under Utah Code Ann. § 78B-5-825, 68 which
provides: “[T]he court shall award reasonable attorney fees to a prevailing party if the court
determines that the action or defense to the action [i]s without merit and not brought or asserted
in good faith.” 69 “A case that is ‘without merit’ ‘border[s] on frivolity,’ having ‘little weight or
importance’ and ‘no basis in law or fact.’” 70 A case is “not brought or asserted in good faith” if:
(i) [t]he party lacked an honest belief in the propriety of the activities in question;
(ii) the party intended to take unconscionable advantage of others; or
(iii) the party intended to or acted with the knowledge that the activities in
question would hinder, delay, or defraud others. 71

64

Id. ¶¶ 9-10.

65

Id. ¶¶ 7-8.

66

Id. ¶ 11.

67

Complaint ¶¶ 103-107.

68

Motion for Summary Judgment at 13-16.

69

Utah Code Ann. 78B-5-825(1).

70

Home Abstract & Title Co., Inc. v. Am. Pension Servs., Inc., 282 P.3d 1015, 1018 (Utah Ct. App. 2012) (quoting
Cady v. Johnson, 671 P.2d 149, 151 (Utah 1983)) (alteration in original).
71

Id. (quoting Valcarce v. Fitzgerald, 961 P.2d 305, 316 (Utah 1998)).

11

ASLC is entitled to summary judgment on each of the Johnstons’ claims. 72 This is
primarily due to the Johnstons’ misreading of the ADA, 73 and their misplaced reliance on
ASLC’s contract with IHC. 74 But it is also because the Johnstons failed to produce any facts or
evidence to withstand summary judgment. Therefore, the Johnstons’ claims against ASLC are
“without merit” for purposes of Utah Code Ann. § 78B-5-825.
However, the record does not support a finding that the Johnstons claims against ASLC
were “not brought or asserted in good faith.” Rather, the Johnstons were aware of a contractual
relationship between ASLC and IHC. 75 This contractual relationship was the basis for the
Johnstons’ belief in the propriety of their claims against ASLC. Nothing in the record suggests
that the Johnstons intended to take unconscionable advantage of ASLC, or hinder, delay, or
defraud ASLC. Therefore, ASLC is not entitled to an award of attorneys’ fees under Utah Code
Ann. § 78B-5-825.
ASLC is entitled to an award of attorneys’ fees
as the prevailing party on the Johnstons’ ADA claims
ASLC also requests an award of attorneys’ fees under the ADA. 76 The ADA and its
corresponding regulations provide that “[i]n any action . . . commenced pursuant to [the ADA],
the court . . . in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee,
including litigation expenses, and costs . . . .” 77 The Tenth Circuit Court of Appeal has
recognized that a prevailing defendant “should ordinarily only recover attorney’s fees [under the

72

Discussion, supra, at 5-10.

73

Id. at 5-6.

74

Id. at 6-10.

75

Undisputed Material Facts, supra, ¶ 14.

76

Motion for Summary Judgment at 16-17.

77

42 U.S.C. § 12205; 28 C.F.R. § 36.505

12

ADA] if . . . the plaintiff’s action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.” 78 This standard “is met when a party utterly fails to
produce any evidence in support of material issues necessary to withstand summary judgment.” 79
ASLC is the prevailing party on the Johnstons’ ADA claims. It is undisputed that ASLC
does not own, lease, or operate a “place of accommodation,” 80 and therefore, cannot be liable
under the ADA. Though ASLC contracted with IHC to provide American Sign Language
interpreters at IHC facilities, 81 the Johnstons presented no evidence that the ADA’s requirements
and obligations apply to IHC. And even if they had, ASLC’s contract with IHC plainly states that
ASLC is an independent contractor—not IHC’s agent—and that it is not liable for any obligation
incurred by IHC. 82 The undisputed facts also show that the Johnstons never directly requested
services from ASLC, and that they are unaware of whether their requests were conveyed to
ASLC or whether the interpreters that cancelled appointments were associated with ASLC. 83 The
Johnstons failed to produce any facts or evidence to support their ADA claims against ASLC.
Therefore, under the circumstances, it is appropriate that ASLC be awarded its reasonable
attorneys’ fees incurred in defending against the Johnstons’ ADA claims.

78

Twilley v. Integris Baptist Med. Ctr., Inc., 16 Fed. App’x 923, 925-26 (10th Cir. 2001) (internal quotations
omitted).
79

Id. at 926 (emphasis in original).

80

Undisputed Material Facts, supra, ¶ 1.

81

Id. ¶ 14.

82

Reply at Exhibit E Clinical Services Agreement.

83

Undisputed Material Facts, supra, ¶¶ 2-4, 6.

13

ORDER
IT IS HEREBY ORDERED that ASLC’s Motion for Summary Judgment 84 is
GRANTED. The Johnstons’ claims against ASLC 85 are DISMISSED with prejudice. As the
prevailing party on the Johnstons’ ADA claims, ASLC is entitled to an award of its reasonable
attorneys’ fees incurred in defending against these claims. The amount of ASLC’s award shall be
determined by subsequent motion. And in such motion, ASLC must apportion its attorneys’ fees
among the Johnstons’ ADA claims and the Johnstons’ other claims.
Signed August 13, 2019.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

84

Docket no. 54, filed Mar. 26, 2019

85

Complaint ¶¶ 49-107.

14