Sw. Fair Hous. Council v. WG Scottsdale LLC
| Decision Date | 08 March 2021 |
| Docket Number | No. CV-19-00180-TUC-RM,CV-19-00180-TUC-RM |
| Parties | Southwest Fair Housing Council, Plaintiff, v. WG Scottsdale LLC, Defendant. |
| Court | U.S. District Court — District of Arizona |
Plaintiff Southwest Fair Housing Council ("Southwest" or "Plaintiff" ) brought this action pursuant to the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act ("Section 504" or "the Rehabilitation Act"), the Affordable Care Act ("ACA"), the Fair Housing Act ("FHA") and the Arizona Fair Housing Act ("AZFHA"). Plaintiff filed a Motion for Summary Judgment (Doc. 51), to which Defendant WG Scottsdale LLC ("Sierra Pointe"1 or "Defendant") responded in opposition (Doc. 54). Defendant also filed a Motion for Summary Judgment (Doc. 49), to which Plaintiff responded in opposition (Doc. 56). The Motions will be granted in part and denied in part as follows.
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A court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and to show (1) that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and (2) that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).
At summary judgment, the Court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Pure questions of law, where there is no disputed issue of fact, are appropriate for summary judgment. Schrader v. Idaho Dep't of Health & Welfare, 768 F.2d 1107, 1110 (9th Cir. 1985). "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because theymay reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. "[T]his standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. (internal citation omitted). In its analysis, the Court must accept the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The Court need consider only the cited materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).
Plaintiff Southwest Fair Housing Council brought this action against Defendant WG Campana seeking remedies for unlawful discrimination based on disability. (Doc. 51 at 9.) Plaintiff is a non-profit organization based in Tucson, Arizona that seeks to ensure that all people, including deaf individuals, have equal access to housing in Arizona. (Id.) Plaintiff employed testers to investigate Defendant's willingness to provide auxiliary aids and services at its facilities, including American Sign Language ("ASL")2 interpreters, as part of its mission to alleviate disability discrimination in housing. (Id.)
Defendant Sierra Pointe is a is a 216-unit residential apartment complex located in Scottsdale, Arizona that provides private apartments for active seniors. (Doc. 49 at 2.) Sierra Pointe provides specific amenities to its residents, the cost of which is included in rent, and offers licensed care services for a fee. (Id.) Sierra Point is licensed to provide Supervisory Care, Personal Care, and Directed Care services. (Id.) Supervisory Care is the level of care that applies to those residents who live independently and includes general supervision, such as daily awareness of resident functioning and needs, cues, and reminders, as well as a medication management program in which staff members remind a resident to take medication and observe her doing so. (Id.) Supervisory Care services involve no direct physical contact between staff and residents. (Id.) Personal Care services include assistance with personal grooming, such as bathing or getting dressed.(Id.) Directed Care services are limited to a separate 38-unit building that provides heightened monitoring and may include personal care or two-person lift assistance. (Id.) Sierra Pointe does not provide medical care, health care, or skilled nursing care. (Id.)
On August 23, 2016, Plaintiff's tester Gladys Beebe ("Beebe") visited Defendant's facility and met with Defendant's executive director, Tracy Colburn ("Colburn") and Defendant's sales director, Gwen Westhaufer ("Westhaufer").3 (Doc. 49 at 3; Doc. 51 at 10.)4 Beebe represented that she was visiting the facility on behalf of her deaf grandfather, Frank, who was considering relocating to Arizona. (Doc. 49 at 3.) Beebe described Frank as deaf, although he had not been born so. (Id.) She described him as using sign language, able to read lips, and able to read and write. (Id.) She described him as in "good health, fairly active, and able to drive. (Id.) She described him as taking heart medication. (Id.) Beebe also stated that she had been estranged from Frank for much of her life and that her brother Garland, who lived in Phoenix, would be the primary point of contact for him. (Id.; Doc. 49 at 10.)
During the tour, Westhaufer explained Sierra Pointe's various levels of care and the services associated with each. (Id.) Beebe indicated that Frank would live independently and might participate in the medication management program. (Id.) Westhaufer explained that Sierra Pointe provides a transportation service and an on-site social worker to its residents but that medical services are provided only by outside, third-party providers with whom a resident would contract directly. (Id.) Westhaufer explained that each resident is assessed individually prior to moving in to ensure that Sierra Pointe can provide the necessary level of care. (Id. at 4.)
During the tour, Beebe asked how Defendant would facilitate communication regarding financial and legal matters. (Doc. 51 at 10.) Westhaufer stated that Defendant would use a whiteboard to communicate. (Id.) Beebe asked if an interpreter would beprovided for the process of Frank signing a lease agreement at Sierra Pointe. (Id.) Westhaufer stated that Defendant would not provide an interpreter. (Id.; Doc. 52 ¶ 32.)
After the tour, on September 19, 2016, an entry was placed into Defendant's Customer Relations Management ("CRM") system that stated:
Gladys wanted to know if APSP5 would hire an interpreter to facilitate the lease signing if they selected APSP. She spoke with me and I suggested a white/wipe board when we initially toured. I spoke with our RSS and she in turn spoke with Gladys about our practices regarding folks with hearing deficits. She told G that no, we would not hire an interpreter and yes, we could utilize a white/wipe board and the family could communicate with the phone system for hearing impaired but that was all.
Doc. 52 ¶ 32. On that same date, Cindy Backes ("Backes"), a licensed practical nurse and the Residential Services Supervisor ("RSS") at Sierra Pointe, emailed Beebe. (Id. ¶¶ 20, 32, 33.) The email stated that Defendant would not be able to supply an interpreter for "the explanation of any financial and/or documentation paperwork." (Id. ¶ 34.) The email further stated that if Frank's family wanted to utilize an interpreter, that the family would have to make that service available for the resident and Sierra Pointe would assist with locating a meeting room. (Id. ¶ 35.)
On September 22, 2016, Westhaufer left a voicemail message for Beebe stating that the September 19, 2016 email from Backes was consistent with Defendant's operations. (Id. ¶ 37.) Specifically, Westhaufer stated in the voicemail that she wanted to make sure Beebe had received the email and wanted to know Beebe's response. (Doc. 52-12.) She stated that she had read the email and that it was "reasonable" and "it's how our company operates." (Id.)
On December 20, 2016, Plaintiff's tester Maggie Johnson ("Johnson") called Sierra Pointe and spoke with Westhaufer. (Doc. 52-14.) In that conversation, Johnson, posing as Beebe's sister, stated that her grandfather Frank was deaf and used ASL. (Id.) Westhaufer recalled the August tour with Beebe and recalled speaking with Beebe aboutFrank. (Id.) Johnson asked how Frank would be able to communicate with people about "the important stuff, like his medical." (Id.) Westhaufer stated that the facility would provide a whiteboard. (Id.) Westhafer confirmed that Frank was deaf and used ASL and then stated that Defendant "would not be able to have an interpreter." (Id.) Westhaufer asked whether Frank was able to read and to write...
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