U.S. Equal Emp't Opportunity Comm'n v. ARC
| Decision Date | 24 November 2015 |
| Docket Number | No. 2:13–cv–0577–KJM–EFB,2:13–cv–0577–KJM–EFB |
| Citation | 32 A.D. Cases 678,147 F.Supp.3d 1053 |
| Court | U.S. District Court — Eastern District of California |
| Parties | United States Equal Employment Opportunity Commission, Plaintiff, v. Placer ARC d/b/a Placer Advocacy Resources & Choices, Defendant. |
Debra A. Smith, Jonathan Peck, Linda Susan Ordonio-Dixon, Marcia Lynne Mitchell, Ami Sanghvi, David Forgan Offen-Brown, U.S. Equal Employment Opportunity Commission, San Francisco, CA, for Plaintiff.
Robert Louis Rediger, Candice Kristine Rediger, Rediger McHugh and Hubbert, Sacramento, CA, for Defendant.
The United States Equal Employment Opportunity Commission (EEOC) brings this case against Placer ARC, doing business as Placer Advocacy Resources & Choices (ARC). The EEOC's complaint was filed on behalf of Homeyra Kazerounian, the charging party. It alleges ARC discriminated against Ms. Kazerounian because of her disability, deafness, in violation of the Americans with Disabilities Act (ADA).
A trial is set to begin in this case on November 30, 2015. The matter is before the court on the parties' motions in limine . This order addresses two of ARC's motions: the second, which seeks to exclude testimony by an EEOC expert witness, Dr. Shana Williams, Psy.D; and the seventh, which seeks to exclude testimony by Lindy Hicks, a former ARC employee. For the reasons described below, these two motions are DENIED. The remaining motions will be addressed in court on the first day of trial.
Ms. Kazerounian has been deaf since the early stages of her childhood. She was born and raised in Iran. When she lived in Iran, she communicated using Iranian Sign Language and in Farsi. She moved to Roseville, California with her husband in 2000. Mr. Kazerounian is also deaf. Ms. Kazerounian's primary language in the United States is American Sign Language. She knows some English, but it can be hard for her to read and write in English.
ARC is a non-profit organization that provides services to individuals with intellectual and developmental disabilities in Auburn and Roseville, California, among other locations. It provides programs to its disabled clients to help support their development in important life areas, for example, personal care, health, finances, visual and performing arts, volunteerism, vocational guidance, and higher education.
In 2004, ARC accepted Ms. Kazerounian as a volunteer in its Auburn program. She worked under the supervision of Program Director Lindy Hicks. In April 2005, ARC hired Ms. Kazerounian as an Instructional Aide at its Auburn facility, still under Ms. Hicks's supervision. ARC provided certified sign language interpreters for Ms. Kazerounian on a near-weekly basis from April 2005 through early 2008. Ms. Hicks took a leave of absence in June 2007, and her employment was terminated from ARC in September 2007. In February 2008, Ms. Kazerounian became a 1:1 Instructional Aide in ARC's Roseville Adult Center facility under the supervision of Program Director Patty Felland. The next month, ARC hired Sheila Maas as an Instructional Aide and with the understanding that Ms. Maas would provide interpretation services to Ms. Kazerounian. Within a few weeks, Ms. Kazerounian told ARC that she found Ms. Maas's interpretation services unsatisfactory.
In December 2008, Ms. Kazerounian filed a complaint of discrimination with the California Department of Fair Employment and Housing, which was dually filed with the EEOC, alleging disability discrimination. Ms. Kazerounian left ARC in May 2010, and in October 2010, she filed a charge of discrimination with the EEOC, alleging she was constructively discharged. This action followed.
The EEOC filed a complaint in this court in March 2013. It alleges ARC did not reasonably accommodate Ms. Kazerounian's disability because it did not provide qualified sign language interpreters or other reasonable and effective accommodations after February 2008. The EEOC also alleges ARC retaliated against Ms. Kazerounian for asserting her rights under the ADA, and alleges her work conditions became so intolerable that she was forced to resign. ARC contends it provided reasonable accommodation to Ms. Kazerounian and did not violate the ADA. ARC further argues that providing Ms. Kazerounian sign language interpreters as she requested would have caused it undue hardship.
ARC moved for summary judgment in December 2014. The court granted the motion in part, finding the undisputed facts did not allow the EEOC to proceed on a claim of retaliation in violation of the ADA. ECF No. 97. The motion was denied with respect to the EEOC's other claims. Id. ARC's motions in limine were filed August 20, 2015. ARC Mot. in Limine (MIL) No. 2, ECF No. 100; ARC MIL No. 7, ECF No. 105. The EEOC filed opposition briefing, ECF No. 138, and ARC replied, ECF Nos. 145, 150.
The EEOC designated Dr. Shana Williams, Psy.D as a retained expert to offer opinions about “Ms. Kazerounian's functional ability to communicate in American Sign Language (ASL) and in English.” R. Rediger Decl., Ex. B (Williams Rep.), at 1, ECF No. 100. Dr. Williams is a licensed psychologist. Id. She earned a Master of Science in Psychology from the Miami Institute of Psychology in 1995 and a Doctorate of Clinical Psychology from Carlos Albizu University in 1998. Williams Rep. App. C. In 1999, she completed a postdoctoral residency in outpatient mental health for the deaf and hard of hearing. Id. She is the Director of Psychological Services at Children's Center for Development and Behavior in Fort Lauderdale, Florida. Williams Rep. at 1. She is a licensed and practicing clinical psychologist, a former adjunct professor in that field, and has served as a court-appointed expert and advocate for deaf and non-verbal clients. Id.
On September 24 and 25, 2014, Dr. Williams administered several tests to assess Ms. Kazerounian's language and communication abilities. Id. She performed a Sign Language Proficiency Interview (SLPI) to “measure[ ] her ability to use receptive and expressive Sign Language to communicate.” Id. at 9. She administered the Denver Scale Quick Test to assess Ms. Kazerounian's ability to read speech, or in colloquial terms, to read lips. Id. at 10. She used the Comprehensive Test of Nonverbal Intelligence (CTONI-2) to test Ms. Kazerounian's “general intelligence.” Id. at 11. She performed the second edition of the Wechsler Individual Achievement Test to assess Ms. Kazerounian's reading, writing, mathematics, and oral language abilities. Id. at 14. And she used the Validity Indicator Profile test to ensure the validity of the other assessments. Id. at 16.
In the section of Dr. Williams's report subtitled “Summary of Findings,” she expresses several opinions. Ms. Kazerounian's ASL was “clear and fluent” and she communicated solely in Sign Language. Id. at 17. She received an “Advanced” rating in the SLPI. Id. at 18. Ms. Kazerounian relies on “multimode means of receptive communication”; that is, “[s]he relies on visual cues, Sign Language, body and facial expression, previous knowledge, and synthesis to understand receptive communication.” Id. The results of the CTONI-2 cognitive test were “solidly in the average range.” Id. at 17. But Ms. Kazerounian's English reading and comprehension scores were “in the Extremely Low range.” Id. at 18. Similarly, Ms. Kazerounian “was often not able to synthesize English words spoken on the lips.” Id. She “could not understand verbal presentation even when she was able to see the speaker's lips.” Id. Stress, environmental noise, fatigue, and unfamiliarity with the speaker reduce her speech reading adequacy, as is typical for those who are deaf or hard of hearing. Id. Nevertheless, the results of the cognitive tests indicate “she would have the ability to perform the job tasks she described and that were listed on her job descriptions.” Id. And the validity test indicated Ms. Kazerounian attempted to respond correctly, gave adequate effort, and was a “Compliant responder.” Id.
As part of her assessment, Dr. Williams also reviewed Ms. Kazerounian's deposition, “her job descriptions, notes from morning meetings and communication books.” Id. She concluded Ms. Kazerounian is able to communicate effectively in ASL, but “detailed or lengthy written information, such as training on care of a colonoscopy bag or understanding an in-service training or staff meeting, would not provide her with effective communication.” Id. “She would benefit from qualified interpreters for detailed information exchanges.” Id. at 19. But she could rely on written English notes for “brief and basic interactions such as discussions of the toileting schedule with a staff member” or “a list of known tasks for the day.” Id.
Dr. Williams formed an opinion that Ms. Kazerounian was not able to communicate effectively with Ms. Maas because Ms. Maas relied primarily on finger spelling. Id. ; Williams Dep. at 81. Finger spelling is not equivalent to Sign Language and was inadequate to provide Ms. Kazerounian the information she needed for her job. Williams Rep. at 19. Dr. Williams also concluded “Ms. Kazerounian was unable to effectively receive communication” from an ARC client in a wheelchair if she was behind the client. Id. at 19–20. “The very nature of her communication system requires access to the visual field in order to gain information from environmental cues, facial and body expressions, and other nonverbal markers.” Id. at 19. While Ms. Kazerounian was walking behind the client in the wheelchair, her ability to perceive the client's requests or expressions of distress was limited. Id. at 19–20.
As noted above, Dr. Williams formed these opinions on the basis of evaluations performed in 2014, but...
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