Meyer v. Walthall

• Decision Date: 25 March 2021
• Docket Number: No. 1:19-cv-03311-JMS-TAB,1:19-cv-03311-JMS-TAB
• Citation: 528 F.Supp.3d 928
• Parties: Christopher MEYER, Sarah Meyer, and The National Federation of the Blind, Inc., Plaintiffs, v. Jennifer WALTHALL, in her official capacity as Secretary of the Indiana Family and Social Services Administration, and Adrienne Shields, in her official capacity as Director of the Indiana Division of Family Resources, Defendants.
• Court: U.S. District Court — Southern District of Indiana

528 F.Supp.3d 928

Christopher MEYER, Sarah Meyer, and The National Federation of the Blind, Inc., Plaintiffs,

v.Jennifer WALTHALL, in her official capacity as Secretary of the Indiana Family and Social Services Administration, and Adrienne Shields, in her official capacity as Director of the Indiana Division of Family Resources, Defendants.

No. 1:19-cv-03311-JMS-TAB

United States District Court, S.D. Indiana, Indianapolis Division.

Signed March 25, 2021

Chelsea J. Crawford, Pro Hac Vice, Jessica P. Weber, Pro Hac Vice, Joseph B. Espo, Pro Hac Vice, Brown, Goldstein & Levy, LLP, Baltimore, MD, Emily A. Munson, Thomas E. Crishon, Indiana Disability Rights, Indianapolis, IN, Jana Eisinger, Pro Hac Vice, Law Office of Jana Eisinger, PLLC, Denver, CO, for Plaintiffs.

Jefferson S. Garn, Kelly Earls, Sarah Ann Hurdle Shields, Zachary D. Price, Indiana Attorney General, Indianapolis, IN, for Defendants.

ORDER

Jane Magnus-Stinson, Chief Judge

Plaintiffs Christopher Meyer and Sarah Meyer, two blind individuals, along with the National Federation of the Blind, Inc. (the "NFB"), have sued Jennifer (Walthall) Sullivan¹ in her official capacity as Secretary of the Indiana Family and Social Services Administration (the "FSSA") and Adrienne Shields in her official capacity as Director of the Indiana Division of Family Resources (the "DFR"). Plaintiffs allege that the FSSA and the DFR have violated and continue to violate the Americans with Disabilities Act (the "ADA") and the Rehabilitation Act. [Filing No. 1.] Plaintiffs have filed a Motion for Summary Judgment, [Filing No. 66], and Defendants have filed a Cross-Motion for Summary Judgment, [Filing No. 72]. These motions are now ripe for the Court's consideration.

I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co. , 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co. , 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus. , 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller , 570 F.3d 868, 875 (7th Cir. 2009).

The existence of cross-summary judgment motions does not mean that there are no genuine issues of material fact: "[p]arties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the non-movant, first for one side and then for the other, may highlight the point that neither side has enough to prevail without a trial." R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Eng'rs, Local 150, 335 F.3d 643, 647-48 (7th Cir. 2003). Thus, a court is not required to grant summary judgment for either side when faced with cross-motions. "Rather, the court is to evaluate each motion on its merits, resolving factual uncertainties and drawing all reasonable inferences against the movant." Culvahouse v. City of LaPorte , 679 F. Supp. 2d 931, 936 (N.D. Ind. 2009) (quoting Crespo v. Unum Life Ins. Co. of America, 294 F. Supp. 2d 980, 991 (N.D. Ill. 2003) ).

The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them." Johnson , 325 F.3d at 898.

II. EVIDENTIARY ISSUES

At the outset, Plaintiffs have filed a Surreply, [Filing No. 78], under Local Rule 56-1(d) seeking to strike portions of the affidavit of Allison Taylor, FSSA's Director of the Office of Medicaid Policy and Planning. In her affidavit, Ms. Taylor testifies about the availability of braille documents from Managed Health Services ("MHS"), a third-party claims administrator for the Medicaid program. [Filing No. 77-3.] Plaintiffs contend that the following paragraphs of the affidavit should be stricken because they are not based on Ms. Taylor's personal knowledge and contain hearsay:

4. MHS offers notifications and other important documents in Braille.

5. Such information is publicly available on MHS's website ....

6. I communicated with Geoffrey Petrie, Vice President, Compliance and Regulatory Affairs for MHS, who stated unequivocally that MHS offers documents in Braille upon request.

7. I also confirmed with three other MCEs: Anthem, Care Source, and MDWise that they send documents in Braille upon request.

[Filing No. 77-3 at 4.]

Paragraphs 6 and 7 are textbook hearsay and are stricken. See Gralia v. Edwards Rigdon Constr. Co., Inc. , 2020 WL 5913280, at *3 (S.D. Ind. Oct. 6, 2020) ("Testimony recounting what another individual said is a classic example of hearsay."). Paragraph 4 is stricken because the affidavit provides no insight as to how Ms. Taylor has personal knowledge about MHS policies regarding braille documents. See Smith v. Allstate Ins. Corp. , 2001 WL 1104713, at *7 (N.D. Ill. Sept. 18, 2001) ("While the court recognizes that Smith may have some knowledge of Brace's attendance, it is unclear how she would know the certainty of his attendance and, therefore, it will be disregarded."). Paragraph 5 is stricken only to the extent Ms. Taylor is testifying that MHS actually provides braille documents. The Court declines to strike Paragraph 5 insofar as Ms. Taylor is competent to testify that she viewed the website and the information she observed on the website.

In sum, Paragraphs 4, 6, and 7 of Ms. Taylor's affidavit, [Filing No. 77-3], are STRICKEN and Paragraph 5 is STRICKEN to the extent Ms. Taylor is testifying that MHS actually provides braille documents .

III. STATEMENT OF FACTS

The following factual background is set forth pursuant to the summary judgment standard detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to "the party against whom the motion under consideration is made." Premcor USA, Inc. v. Am. Home Assurance Co. , 400 F.3d 523, 526-27 (7th Cir. 2005).

A. The Parties

1. Christopher Meyer

Plaintiff Christopher Meyer was born with Leber's congenital amaurosis, a condition present at birth that causes significant vision loss and blindness, and he is blind as a result. [Filing No. 66-3 at 7.] He reads braille and uses a variety of assistive technology to read standard alphanumeric print. [Filing No. 66-3 at 7-8.] To read hardcopy alphanumeric print documents, he uses applications that turn text into an audio output, or he uses human readers—referred to as sighted assistance—to read documents to him. [Filing No. 66-3 at 8-9.] The text-to-audio applications have some limitations, and Mr. Meyer estimates that they can only read between 50-80% of text on a document because the applications have difficulty interpreting documents with backgrounds or low-contrast texts. [Filing No. 66-3 at 9-10.]

Mr. Meyer can write, but is only comfortable with non-narrative writing, such as writing his name and date of birth. [Filing No. 71-1 at 35.] When longer narrative responses are required, he needs either sighted assistance or the document available in an electronic format so that he can type or use audio-to-text applications. [Filing No. 71-1 at 34-35.]

To navigate websites, Mr. Meyer uses "screen readers," which are software programs that read a computer screen and provide an audio output. [Filing No. 66-3 at 11-12.] He uses two screen readers for computers running Microsoft Windows, a third for Apple computers, and a fourth for Apple mobile products. [Filing No. 66-3 at 11-12.] For Windows, he uses screen readers called Job Access with Speech ("JAWS") and NonVisual Desktop Access ("NVDA"). [Filing No. 66-3 at 12.] For Apple, he uses VoiceOver for desktop and a separate VoiceOver application for mobile devices. [Filing No. 66-3 at 12.]

2. Sarah Meyer

Plaintiff Sarah Meyer is Christopher Meyer's sister. [Filing No. 66-3 at 23.] Like her brother, Ms. Meyer has been blind since birth as a result of Leber's congenital amaurosis. [Filing No. 66-4 at 8.] She also reads braille and uses a variety of text-to-audio applications to read hard copy documents, including an application called Aira which connects her to a human through a camera on a smart phone who then helps her "accomplish tasks such as reading or identifying labels on food packaging or looking for lost items or way finding through navigation." [Filing No. 66-4 ...