McGann v. Cinemark Usa, Inc., 100617 FED3, 16-2160

Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
Attorney:Carol A. Horowitz [ARGUED] Jeffrey M. Skakalski Counsel for Appellant Brett Burns [ARGUED] Hunton & Williams, Bridget J. Daley Brian H. Simmons Buchanan Ingersoll & Rooney PC Counsel for Appellee Cinemark USA, Inc. Vanita Gupta Tovah R. Calderon Bonnie I. Robin-Vergeer [ARGUED] Counsel for Amicus...
Judge Panel:Before: SMITH, Chief Judge, MCKEE, and RESTREPO, Circuit Judges
Opinion Judge:RESTREPO, Circuit Judge.
Case Date:October 06, 2017
Docket Nº:16-2160




No. 16-2160

United States Court of Appeals, Third Circuit

October 6, 2017

          Argued: November 10, 2016

         On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-15-cv-00423) Chief Magistrate Judge: Honorable Maureen P. Kelly

          Carol A. Horowitz [ARGUED] Jeffrey M. Skakalski Counsel for Appellant

         Brett Burns [ARGUED] Hunton & Williams, Bridget J. Daley Brian H. Simmons Buchanan Ingersoll & Rooney PC Counsel for Appellee Cinemark USA, Inc.

          Vanita Gupta Tovah R. Calderon Bonnie I. Robin-Vergeer [ARGUED] Counsel for Amicus Curiae United States of America

          Before: SMITH, Chief Judge, MCKEE, and RESTREPO, Circuit Judges


          RESTREPO, Circuit Judge.

         The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., requires public accommodations, including movie theaters, to furnish auxiliary aids and services, which include qualified interpreters, to patrons with vision, hearing, and speech disabilities. Plaintiff-Appellant Paul McGann, who is blind and deaf, requested from Defendant-Appellee Cinemark USA, Inc. ("Cinemark") an American Sign Language ("ASL") tactile interpreter so that he could experience a movie in his local Cinemark theater during one of its regular showings. Cinemark denied his request, and McGann then filed this suit under the ADA.

         After a bench trial in which the parties stipulated to all relevant facts, the District Court entered Judgment in favor of Cinemark. It reasoned that McGann's requested tactile interpreter was not an auxiliary aid or service under the ADA and that the ADA did not require movie theaters to change the content of their services or offer "special" services for disabled patrons. For the following reasons, we will vacate the Judgment and remand for consideration of Cinemark's available defense.



         McGann has Usher's Syndrome Type 1, a sensory disorder. He was born deaf and began losing his sight at age five. He has been completely blind for approximately fifteen years, and he is now considered deaf-blind. There is no single universally accepted method of communication for people who are deaf-blind. McGann generally uses ASL to communicate with others. ASL is a unique language that has its own idioms, grammar, and syntax.

         McGann can expressively communicate by signing in ASL himself. He receptively communicates with the assistance of ASL tactile interpreters.There are numerous methods of ASL tactile interpretation. McGann most commonly uses the hand-over-hand method. The hand-over-hand method involves the recipient placing his hands lightly upon the hands of an interpreter, who is signing in ASL, and reading those ASL signs through touch and movement.

         ASL tactile interpretation of a movie includes every possible element of that movie's content, including visual, aural, and oral components. In addition, because tactile interpretation in almost any venue includes a descriptive component, interpretation of a movie screening will include environmental elements, such as other viewers' contemporaneous reactions. Given practical limitations, tactile interpreters cannot communicate all elements of a movie verbatim; they must, at times, make judgment calls about what content to skip. But tactile interpretation of a movie does not require any changes to the video or audio content of the movie, the auditorium screens or sound systems, or the physical environment-including the lighting-in or around the theater.

         McGann has experienced movies in theaters for many years. He enjoys attending movies in person for a number of reasons; among others, it affords him the opportunity to participate in discussions about the movies with his friends and family. Before his wife passed away in 2001, she would provide him with tactile interpretation during movies in the theater. Since then, McGann has attended movies at a local Carmike Cinema. Carmike provided him with tactile interpretation services for movie presentations at his request.

         In November 2014, McGann became interested in experiencing the movie Gone Girl (Twentieth Century Fox Film Corp. 2014), after hearing about it from his family and reading about it online using Braille. After he contacted his customary Carmike Cinema to inquire about attending a presentation of the movie, he learned it was no longer playing there. So he sought another theater in which to experience it.

         Cinemark owned another theater in McGann's local area, Cinemark Robinson Township and XD Theater ("Cinemark Robinson"). As of December 2014, Cinemark was the most geographically diverse, worldwide exhibitor of movies, with 335 theaters and 4, 499 movie screens in the United States, spread across forty-one states, including Pennsylvania. Cinemark makes assistive listening devices, closed captioning devices, and descriptive narration devices available in its U.S. theaters to patrons who are disabled. But given McGann's disability, none of those devices would help him experience a movie.

         Having learned that Cinemark Robinson still offered Gone Girl, McGann e-mailed the theater directly to request tactile interpretation services that would allow him to experience the movie during one of its regular presentations. After receiving no response to his initial inquiry, McGann contacted Cinemark Robinson again and was directed to senior paralegal Leslie Petengill, who worked in Cinemark's national headquarters in Texas. He reached out to Petengill that same day.

         Cinemark had never received a request for tactile interpretation services for a patron who was deaf-blind before McGann's request. Petengill and Cinemark investigated McGann's request by contacting the Center for Hearing and Deaf Services ("HDS"), which provided Cinemark with quotes for tactile interpretation services. Rates ranged between $50 and $65 per hour, for a minimum of two hours. Because HDS considered tactile interpretation of Gone Girl a complex assignment, with a duration of over two hours, it would have required two interpreters.

         Petengill denied McGann's request for tactile interpretation services on December 15, 2014, via e-mail, on her own authority. The e-mail explained that Cinemark did not believe that the ADA required Cinemark to provide McGann with tactile interpretation services for the purpose of "describ[ing] the movie [McGann] [would] [be] attending." As of January 2016, Cinemark had not received any other requests to provide tactile interpretation services to any patron who is deaf-blind.

         McGann filed suit against Cinemark in March 2015, alleging that the theater violated Title III of the ADA when it denied his request for tactile interpreting services. In his suit, he sought declaratory relief, attorneys' fees, and costs. After discovery, the parties did not file dispositive motions. They agreed to a non-jury trial before the District Court presented through pretrial briefs, amended joint stipulations of fact, joint exhibits, and oral argument. Oral argument was held in January 2016. The District Court entered Judgment for Cinemark in April 2016. This timely appeal followed.1


         With an understanding of the factual and procedural background of McGann's claim, we turn to the statutory and regulatory framework under which his claim arises. Congress enacted the ADA in 1990 as a "clear and comprehensive national mandate" designed to eliminate discrimination against individuals with physical and mental disabilities across the United States. 42 U.S.C. § 12101(a)(1), 12101(b)(1); PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75 (2001). To help "effectuate its sweeping purpose, " Congress enacted Title III of the ADA, which prohibits "public accommodations" from discriminating against individuals on the basis of disability. PGA Tour, 532 U.S. at 675; 42 U.S.C. § 12182(a). "Public accommodations" span "12 extensive categories" and include "a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment." PGA Tour, 532 U.S. at 676, 676 n.24 (citing 42 U.S.C. § 12181(7)).

         Title III begins with a "[g]eneral rule" that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. § 12182(a). "The term 'discrimination' is not directly and uniformly defined in Title III." Menkowitz v. Pottstown Mem'l. Med. Ctr., 154 F.3d 113, 116 (3d Cir. 1998). "Instead, the statute provides several 'general prohibitions, '" which bar broad categories of conduct "that constitute discrimination for purposes of the general rule found in 42 U.S.C....

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