Ferguson v. City of Phoenix

• Decision Date: 17 July 1996
• Docket Number: No. Civ. 95-0260 PHX RCB.,Civ. 95-0260 PHX RCB.
• Citation: 931 F. Supp. 688
• Parties: William FERGUSON, et al., Plaintiffs, v. CITY OF PHOENIX, Defendant.
• Court: U.S. District Court — District of Arizona

931 F. Supp. 688

William FERGUSON, et al., Plaintiffs, v. CITY OF PHOENIX, Defendant.

No. Civ. 95-0260 PHX RCB.

United States District Court, D. Arizona.

July 17, 1996.

COPYRIGHT MATERIAL OMITTED

Suzanne M. Dohrer, Haglund, Dohrer & Watts, Phoenix, Arizona, for Plaintiffs.

William R. Jones, Jr., Eileen J. Dennis, Kathleen L. Wieneke, Alisa J. Gray, Jones, Skelton & Hochuli, Phoenix, Arizona, for Defendants.

Robert J. Mather, U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Washington, D.C., Ronald R. Gallegos, Assistant United States Attorney, Phoenix, Arizona, for Amicus Curiae, United States.

AMENDED ORDER

BROOMFIELD, Chief Judge.

Plaintiffs, William Ferguson, Bonnie Tucker and Jay Frankel, bring this case pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 794(a), and 42 U.S.C. § 1983. Each plaintiff is deaf, and thereby qualifies for ADA protection. Plaintiffs allege that defendant, the City of Phoenix, operates its 911 emergency service in such a way as to discriminate against the hearing impaired, in violation of the ADA. Now before the court is defendant's motion for summary judgment. The United States Department of Justice has been permitted to appear as amicus curiae. Having read the parties' briefs and heard oral argument, the court now rules.

FACTS

A. Background.

All plaintiffs in this case have attempted to communicate with the Phoenix 911 system through a telecommunications device for the deaf ("TDD" or "TTY"). A TDD is the standard instrument used by hearing impaired individuals who wish to communicate via the telephone. It is similar to conversing by electronic mail or modem. In order to communicate, both parties must have TDD technology. A TDD caller types in his half of the conversation, which is then transmitted over the phone line and read by the recipient on a display on his TDD. During a conversation only one person can talk at a time because the phone lines can only transit TDD messages one at a time. This makes TDD conversations slower than verbal communication. As a result, a "TDD protocol" has been erected within the deaf community. (United States Br. at 6.) Apparently, "just as a hearing person will dial a telephone number and wait to hear a person answer with a greeting before proceeding to speak, a TDD caller will dial a telephone number and wait for the person receiving the call to type a greeting and the `GA' (go ahead) before beginning to converse in text. The TDD user does not typically press keys while awaiting a response to his or her call. Pressing keys at this time would not be considered common practice among TDD users. It is an additional step that could be considered `foreign' TDD protocol." (Aff. of Toni D. Dunne at 4, United States Br. Ex. A.)

Some, but not all, TDD's emit an audible "tone" that signals properly trained hearing individuals that the call they have received is a TDD call. Other TDD's have a "TDD announcer" instead of the "tone" feature. The TDD announcer transmits an actual voice recording that informs the other party that they have received a TDD call.

B. Phoenix's 911 System and TDD Calls.

During the relevant time frame for this suit Phoenix had two separate systems for handling 911 calls placed via TDD. The first was in place before August 21, 1995. Essentially, a TDD call would ring into 911 just like any other call and would be verbally answered by a 911 operator. That call would then be transferred to the one TDD machine located at an auxiliary answering position. This transfer, which occurred manually, required a) the TDD caller to initiate the audible tone, and b) the operator to recognize that tone and transfer the call. In other words, to get the operator to manually transfer the call the TDD caller had to emit the audible tone.

Even after emitting the tone, no typed instructions were given to a TDD caller informing the caller that the call was being transferred or otherwise handled. Once the transfer was completed, the system automatically transmitted the typed message "Phoenix police department, give us your name address and phone number, how can we help you?" This is the same message that is currently transmitted under the City's new 911 system. Normally, however, "all TTY dialogue uses abbreviations, and punctuations are not used." (Aff. of Alfred Sonnestrahl ¶ 52, PSOF Ex. D.) Again, this is due to the relatively slow speed of TDD communications.

On August 21, 1995, the City implemented its current, upgraded system for handling 911 TDD calls. Now two of the 30 answering booths are equipped with TDD technology. In addition, an automatic diverter system was installed. This system monitors all incoming 911 calls and, if a TDD audible tone is detected, automatically transfers the call to one of the positions equipped with TDD technology. Thus, for this transfer to take place the caller must still initiate the TDD audible tone.

If the system detects a TDD call when all 911 operators are otherwise busy, a message is automatically sent to the caller telling him that he has reached 911 and should remain on the line. That TDD call is then placed in front of all other holding calls. Once freed to handle the call, the 911 operator gets the verbal message "TDD call." This message is repeated until the operator manually transfers the call to a TDD equipped position.

Under either the new or old system, operators receiving silent calls treated these calls as "911 hangups." Under established procedure, operators would hangup on a silent call and then call the caller back on a regular voice phone line. However, according to defendant, "in September of 1995, the City implemented a new procedure whereby an operator who receives a silent call can press `5#' and automatically send a message to a potential TDD caller to press the space bar. If the silent caller is on a TDD, he can then press the space bar and emit the Baudot tone, signalling the diverter to automatically connect to the TDD station." (Def.'s Reply at 6.)

C. Plaintiffs' Experiences with 911.

In the early morning hours of August 14, 1994, plaintiff Ferguson observed some suspicious looking individuals lurking about the front of his home. He decided to call 911 and report these people to the Phoenix police using his TDD. The 911 operator who answered Ferguson's call, hearing no audible tone or response, hung up, in accordance with defendant's official policy on "silent calls." Also in accordance with that policy, the operator immediately attempted to call Ferguson back. However, the line was busy. That was because, in the interim, Ferguson had placed a second call to 911. The operator who answered the second call heard an audible tone that she recognized as a TDD signal. As a result, she transferred the call to a different operator station, one equipped with a TDD machine. This transfer took 30 seconds to effectuate. Once the call was transferred the operator sent a pre-programmed TDD message to Ferguson. However, that call also was disconnected. Having been disconnected, the operator, pursuant to official policy, dispatched the police to plaintiff's home on a priority two check welfare call. Based upon plaintiff's actual circumstances, however, the police should have been dispatched to Ferguson's residence on a priority one call. Yet, because of the disconnects, plaintiff was unable to communicate the true nature of his emergency.

While the police were en route, Ferguson called 911 twice more. Both calls were answered and subsequently disconnected, despite Ferguson causing his TDD to make the audible tone. Meanwhile, the individuals broke into plaintiff's truck. Having gotten no satisfaction from 911, Ferguson unsuccessfully attempted to thwart the thieves himself.

On January 30, 1995, Ferguson again called 911, this time to report ongoing vandalism on his property. As had happened before, the 911 operator hung up on his call. Ferguson tried calling back. Meanwhile, the operator called Ferguson back but received a busy signal. As a result, she asked U.S. West to break through the line. When the US West operator got no response, the 911 operator again sent the police to Ferguson's home on a priority two basis. As these goings on were unbeknownst to Ferguson, he tried reaching 911 three more times, each time emitting the TDD audible tone. It was only on his fourth attempt that Ferguson was connected to a 911 operator with TDD equipment. Apparently, the three previous operators had failed to recognize the TDD audible tone and, as a result, disconnected these otherwise "silent calls."

On August 28, 1995, Ferguson observed a prowler lurking behind his neighbor's garage. He called 911 as a result. This call was handled under the new 911 system. However, the 911 operator again disconnected his call. This futile process was then repeated. Ferguson then made a third call to 911. After a few minutes delay, he was connected to a TDD operator. However, during the course of that call, Ferguson experienced delays lasting several minutes, during which time he was unable to communicate with the 911 operator.

As a result of these experiences, Ferguson complained on a number of occasions to the City about its 911 service. These various complaints were reviewed by Commander Lyle Rodabough. He acknowledged plaintiff's troubles, expressed his dissatisfaction with the way plaintiff was treated by the system, and vowed corrective action.

On November 25, 1995, plaintiff Tucker called 911 via her TDD. She did so to test the system because her father, who is also deaf, had unsuccessfully tried to reach 911 earlier that evening when he believed he was experiencing a medical emergency. Her first call went unrecognized as a TDD call. On her second call she communicated the purpose of her call to the 911 operator. The operator suggested Tucker hang up and again try to test the system. Tucker then placed...