Center v. City of West Carrollton

• Decision Date: 27 September 2002
• Docket Number: Case No. C-3-00-449.
• Citation: 227 F.Supp.2d 863
• Parties: Rebecca CENTER, Plaintiff, v. CITY OF WEST CARROLLTON, Defendant.
• Court: U.S. District Court — Southern District of Ohio

Page 863

227 F.Supp.2d 863

Rebecca CENTER, Plaintiff, v. CITY OF WEST CARROLLTON, Defendant.

Case No. C-3-00-449.

United States District Court, S.D. Ohio, Western Division.

September 27, 2002.

Joyce Marie Deitering, Dayton, OH, for Plaintiff.

Robert Jerome Surdyk, Jenks, Surdyk, Oxly, Turner & Dowd, Dayton, OH, for Defendant.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART THE CITY OF WEST CARROLLTON'S MOTION FOR SUMMARY JUDGMENT (DOC. # 14); CONFERENCE CALL SET TO RESCHEDULE TRIAL DATE AND OTHER DATES

RICE, Chief Judge.

The instant litigation arises from the alleged failure of Defendant City of West Carrollton to provide appropriate auxiliary aids to Plaintiff Rebecca Center, who is deaf. According to her Complaint (Doc. # 1),¹ on November 15, 1998, Plaintiff resided at 5509 Beavon Avenue in West Carrollton, Ohio. On that date, Plaintiff placed a telephone call to the West Carrollton Police Department, requesting assistance. Center alleges that she asked the police department to provide her with a qualified interpreter for the deaf or hearing impaired, but that it failed to do so. Plaintiff alleges that, as a consequence, she could not adequately communicate with the police officer who responded to her call, and that she has suffered emotional distress.

On September 11, 2000, Plaintiff initiated this lawsuit, setting forth three claims for relief, to wit: (1) a claim of disability discrimination, in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; (2) a claim of disability discrimination, in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-34, and its regulations 28 C.F.R. Parts 35 and 36; and (3) a claim for violation of 42 U.S.C. § 1983, presumably based on violations of the Rehabilitation Act and the ADA.²

Pending before the Court is Defendant's Motion for Summary Judgment (Doc. # 14). For the reasons assigned, Defendant's Motion is SUSTAINED in PART and OVERRULED in PART.

I. Standard for Motion for Summary Judgment

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991)(The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)(quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law, Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994)("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990); see also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992)("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment ....") Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

II. Defendant's Motion for Summary Judgment (Doc. # 14)

In its Motion for Summary Judgment, the City of West Carrollton asserts that Plaintiff cannot establish any of her claims. With regard to Plaintiff's claims under the Rehabilitation Act and the ADA, Defendant asserts that she cannot establish that she was denied benefits or subject to discrimination, due to her disability. In particular, Defendant asserts that Officer Brodbeck, the police officer who responded to Plaintiff's telephone call, was able to communicate effectively with her, and that he did not need the assistance of an interpreter. Defendant also asserts that Plaintiff cannot establish a § 1983 claim, because she has not alleged a violation of a Constitutional right and she cannot prevail on her Rehabilitation Act or ADA claim.

A. Plaintiff's Claims under the Rehabilitation Act and the ADA

Section 504 of the Rehabilitation Act prohibits entities receiving federal funds from discriminating against individuals with disabilities. It provides, in relevant part: "No 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 or under any program or activity conducted by any Executive agency or by the United States Postal Service." 29 U.S.C. § 794(a) (1988 & Supp. IV 1992). Section 202 of the ADA prohibits a state and local governments from discriminating against disabled individuals. Like § 504, it provides 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 subjected to discrimination by any such entity." 42 U.S.C. § 12132. Congress has dictated that Title II of the ADA be interpreted in a manner consistent with section 504 of the Rehabilitation Act. See 42 U.S.C. §§ 12134(b), 12201(a); Owens v. O'Dea, 1998 WL 344063(6th Cir. May 27, 1998). Thus, because the purpose, scope, and governing standards of the "[A]cts are largely the same, cases construing one statute are instructive in construing the other." McPherson v. MHSAA, 119 F.3d 453, 460 (6th Cir.1997) (en banc) (quoting Andrews v. State of Ohio, 104 F.3d 803, 807 (6th Cir.1997)); Toyota Motor Mfg., KY, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 689-90, 151 L.Ed.2d 615 (2002).

To establish a prima facie violation of section 504 of the Rehabilitation Act or section 202 of the ADA, a plaintiff must show that: (1) the plaintiff is a "handicapped person" under the Act; (2) the plaintiff is "otherwise qualified" for participation in the program; and (3) the...