Tauscher v. Phx. Bd. of Realtors, Inc.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: IKUTA, Circuit Judge
• Citation: Tauscher v. Phx. Bd. of Realtors, Inc., 931 F.3d 959 (9th Cir. 2019)
• Decision Date: 25 July 2019
• Docket Number: No. 17-17218,17-17218
• Parties: Mark TAUSCHER, Plaintiff-Appellant, v. PHOENIX BOARD OF REALTORS, INCORPORATED, dba Phoenix Association of Realtors, Defendant-Appellee.

931 F.3d 959

Mark TAUSCHER, Plaintiff-Appellant,

v.PHOENIX BOARD OF REALTORS, INCORPORATED, dba Phoenix Association of Realtors, Defendant-Appellee.

No. 17-17218

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2019 San Francisco, California

Filed July 25, 2019

William August Richards (argued) and David E. Wood, Baskin Richards PLC, Phoenix, Arizona; Andrew Rozynski, Eisenberg & Baum, New York, New York; for Plaintiff-Appellant.

Brian Alexander Howie (argued) and Eric B. Johnson, Quarles & Brady LLP, Phoenix, Arizona, for Defendant-Appellee.

Before: Sidney R. Thomas, Chief Judge, Sandra S. Ikuta, Circuit Judge, and Donald W. Molloy,^* District Judge.

IKUTA, Circuit Judge:

Mark Tauscher is a profoundly deaf individual who is a licensed real estate salesperson in Arizona. On January 23, 2015, Tauscher filed a lawsuit against the Phoenix Association of Realtors (PAR), alleging that PAR did not comply with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 – 12213, and the Arizonans with Disabilities Act (AzDA), A.R.S. §§ 41-1492 to 41-1492.12. The district court granted summary judgment to PAR. We have jurisdiction under 28 U.S.C. § 1291, and we reverse the district court and remand for further proceedings.

I

Mark Tauscher has profound hearing loss, meaning that he cannot hear sounds that are less than 90 decibels loud (about as loud as a lawnmower).¹ According to an expert report in the record, Tauscher cannot hear in conversational settings, and he cannot use lip reading to understand speech. Nor can Tauscher effectively communicate with others by means of spoken words. Tauscher’s primary and best form of communication is American Sign Language (ASL). Despite these limitations, Tauscher has obtained a bachelor’s degree in biomedical photographic communication and a master’s degree in business administration. He works full time for Sprint as a branch manager for product development and is also a licensed real estate salesperson in Arizona.

The Phoenix Association of Realtors is a trade association for real estate professionals who sell real property in the Phoenix metropolitan area.² PAR has twelve employees. Its membership has ranged from 7,600 to over 13,000 dues-paying members between 2008 and 2013. PAR offers a variety of programs and services for its members, including seminars that fulfill continuing education requirements set by the Arizona Department of Real Estate. Historically, PAR has charged only a nominal amount for these seminars, and the record indicates that the revenue from PAR’s seminars is generally less than the seminars’ costs.

Tauscher registered for a continuing education course that PAR scheduled for February 13 and 14, 2013. Tauscher’s registration fee for the course was $20. In September 2012, Tauscher contacted Diane Scherer, PAR’s Chief Executive Officer, to ask PAR to provide an ASL interpreter for the course. Scherer declined to provide an ASL interpreter and instead offered Tauscher the use of an FM Loop system that amplifies sound. Tauscher rejected this aid; he explained that such a system would not provide effective communication for him because of the extent of his hearing impairment. Scherer and Tauscher discussed the possibility of closed or open captioning, but the conversation ended without any agreement being reached.

In early February 2013, PAR responded to Tauscher’s request for an auxiliary aid or service in a letter prepared by PAR’s counsel. PAR rejected Tauscher’s request for an ASL interpreter on the ground that PAR did not have the resources to provide an ASL interpreter and it would be an undue burden on the organization. Instead, the letter proposed three other measures. First, the letter stated that if Tauscher wanted "to attend the class and utilize lip reading, PAR [could] make the instructor available for questions at breaks and lunch." Second, the letter stated that "if [Tauscher knew] another real estate agent who [was] willing to sign for [him], PAR [would] provide the instruction and credits free to that person." Finally, PAR suggested that Tauscher could fulfill the continuing education requirements by taking online courses. Tauscher and PAR exchanged further correspondence in March but did not reach a resolution. PAR refunded Tauscher’s registration fee.

In October 2014, Tauscher registered for another PAR course and asked PAR to provide an ASL interpreter. PAR again refused, proposing instead to "make the instructor available to you for questions at break and lunch." PAR subsequently cancelled Tauscher’s registration for the course.

Tauscher brought a claim in district court alleging that PAR had violated the ADA and the Arizonans with Disabilities Act. The parties filed cross-motions for summary judgment, and the district court granted PAR’s motion. The district court held that PAR’s obligations under the ADA were satisfied when it engaged in a dialogue with Tauscher about his request for an ASL interpreter, and PAR was relieved from any further obligations under the ADA because Tauscher had refused to discuss any measures other than an ASL interpreter. The court subsequently denied Tauscher’s motion for reconsideration, and Tauscher timely appealed.

II

We review a district court’s grant of summary judgment de novo. Furnace v. Sullivan , 705 F.3d 1021, 1026 (9th Cir. 2013). Summary judgment is appropriate only if, taking the evidence and all reasonable inferences in the light most favorable to the non-moving party, there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see also Furnace , 705 F.3d at 1026. "An issue of material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party." Thomas v. Ponder , 611 F.3d 1144, 1150 (9th Cir. 2010) (internal quotation marks omitted).

A

Title III of the ADA provides 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 by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a).³ There is no dispute that Tauscher is an individual with a disability, see 42 U.S.C. § 12102(1), or that PAR is a public accommodation and its seminars are places of public accommodation, see id. § 12189.⁴

Under the applicable regulations, a public accommodation has an obligation to "take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services."

28 C.F.R. § 36.303(a). A public accommodation is relieved of this obligation only if it "can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense." Id.

A public accommodation must furnish "appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities." Id. § 36.303(c)(1). The regulations define "auxiliary aids and services" to include qualified interpreters, "real-time computer-aided transcription services," "assistive listening devices," and a range of additional specified measures. Id. § 36.303(b)(1). The regulations also contain a catchall: any "other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing." Id. But the public accommodation may not "require an individual with a disability to bring another individual to interpret for him or her." Id. § 36.303(c)(2). While "[a] public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication," the regulations make clear that "the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication." Id. § 36.303(c)(1)(ii).

B

On appeal, Tauscher argues that the district court erred in granting summary judgment in favor of PAR because there is a genuine issue of material fact as to whether PAR failed to provide him with "appropriate auxiliary aids and services" that would "ensure effective communication." According to Tauscher, PAR failed to discharge its ADA obligations because it failed to provide an ASL interpreter. The regulations do not require PAR to provide the specific aid or service requested by Tauscher; the regulations make clear that "the ultimate decision as to what measures to take rests with the public accommodation," so long as the measures provide effective communication. 28 C.F.R. § 36.303(c)(1)(ii). However, we agree with Tauscher that there is a genuine issue of material fact as to whether PAR offered Tauscher a means of communication that was effective.

PAR offered Tauscher several different measures over the course of its communication with him. Some of the measures offered by PAR clearly were not effective means of communication. PAR does not now dispute that the FM Loop system was not an effective means of communication for Tauscher. And several of the alternatives suggested by PAR do not constitute an effective means of communication as a matter of law. Because the regulations expressly provide that a public accommodation may not require disabled individuals to provide their own interpreter, see 28 C.F.R. § 36.303(c)(2), PAR’s suggestion that Tauscher bring a friend to the class to interpret for him does not meet PAR’s obligations to provide effective communication. PAR also suggested that Tauscher take online classes, instead of participating in the live classroom setting....