White v. Bank of Am., N.A.

• Decision Date: 02 August 2016
• Docket Number: Civil Action No. 12-cv-581 (TSC)
• Citation: 200 F.Supp.3d 237
• Parties: Darcy WHITE, Plaintiff, v. BANK OF AMERICA, N.A., Defendant.
• Court: U.S. District Court — District of Columbia

200 F.Supp.3d 237

Darcy WHITE, Plaintiff,

v.BANK OF AMERICA, N.A., Defendant.

Civil Action No. 12-cv-581 (TSC)

United States District Court, District of Columbia.

Signed August 2, 2016

Joseph B. Espo, Brown, Goldstein & Levy, L.L.P., Baltimore, MD, Debra Joy Patkin, National Association of the Deaf, Silver Spring, MD, for Plaintiff.

Robert Bruce Wallace, Callyson Taylor Grove, Wilson Elser Moskowitz Edelman & Dicker LLP, Michelle Bergman, Pension Benefit Guaranty Corporation, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

In her suit against Defendant Bank of America, N.A. ("Defendant" or "Bank of America"), Plaintiff Darcy White alleges violation of (i) Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the "ADA"); (ii) § 504 of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq. ("§ 504"); and (iii) the District of Columbia Human Rights Act, D.C. Code §§ 2–1401.01 et seq. (the "DCHRA").

Upon consideration of the parties' cross-motions for summary judgment and briefs in support thereof and in opposition thereto, and for the reasons set forth below, Plaintiff's motion is hereby DENIED , and Defendant's motion is hereby GRANTED as to (i) Plaintiff's claims relating to Defendant's call center policy and now-defunct overnight delivery policy; (ii) Plaintiff's claims under Title III of the ADA, § 504 and the DCHRA for injunctive relief from Defendant's Fraud Department guideline; and (iii) Plaintiff's remaining claim for compensatory damages under § 504.

Both parties' motions for summary judgment as to Plaintiff's remaining claim for compensatory damages under the DCHRA are hereby DENIED . The court will retain supplemental jurisdiction over Plaintiff's DCHRA claim for compensatory damages, but will order a new round of summary judgment briefing limited solely to that claim.

I. FACTUAL BACKGROUND

a. Plaintiff's Interactions With Bank Of America

As an initial matter, Defendant acknowledges that Plaintiff, who is deaf and who lives in Washington, D.C., suffers from a disability. (See , e.g. , Def.'s Mot. at 7 n.1). Defendant also acknowledges that its bank branches are places of public accommodation under both the ADA and the DCHRA. (See , e.g. , id. ).

On September 28, 2011, while she was at a coffee shop, Plaintiff's wallet was stolen. (Compl. ¶ 17; Pl.'s Mot. Ex. 1 at 22:12-22). The wallet contained Plaintiff's Bank of America credit card, and may have also contained a blank check from her Bank of America checking account. (Pl.'s Mot. Ex. 1 at 24:12-14, 29:16-21; Pl.'s Mot. Ex 4).

Plaintiff reported the theft to the police, and one of her friends called Defendant on her behalf to request that a hold be put on the credit card. (Pl.'s Mot. Ex. 1 at 24:23-25:7; Pl.'s Mot. Ex. 4). Plaintiff did not have any problems conducting the call through her friend, and a hold was successfully placed on her account. (Pl.'s Mot. Ex. 1 at 25:8-10, 28:15-17). During the call, Plaintiff learned that her credit card had already been used to make $60 worth of fraudulent charges, and was advised that she should visit a local Bank of America branch "to handle the next steps." (Id. at 25:14-19, 28:1-8).

The next day, Plaintiff went to her local branch, where she opened a new checking account into which she transferred the funds from her old, potentially compromised checking account. (Id. at 29:1-31:13). Plaintiff did not close her old checking account because she was expecting a direct deposit the next day which could not be redirected to her new checking account in time. (Id. at 30:17-31:20). Accordingly, Plaintiff was given the number for Defendant's Check and Digital Fraud Claims Department (the "Fraud Department") (id. ), which "handles customer accounts with reported fraudulent activity." (Def.'s Mot. Ex. 10 ¶ 4). Plaintiff was directed to call the Fraud Department after the direct deposit came through in order to get those funds transferred into her new checking account. (Pl.'s Mot. Ex. 1 at 30:17-31:20).

The following day, after the direct deposit had cleared, Plaintiff called Defendant's Fraud Department to transfer the newly-deposited funds out of her old checking account and into her new checking account, and to close her old checking account, as she had been directed to do. (Id. at 33:2-12, 34:17-22). Plaintiff used what is referred to as a "relay service" to make the call. (Id. at 33:2-10).

Individuals who are hearing-impaired can make phone calls in a number of different ways. Traditionally, they employed devices called "text telephones" ("TTYs"), which Plaintiff now considers "outdated." (Compl. ¶¶ 30-31). More common today are "relay services," which insert a third party into the phone call for the purpose of relaying messages back and forth between the hearing-impaired caller and their hearing counterpart. IP relay services, for example, allow anyone with an internet connection to type messages to a "communications assistant" using a chat-like window in their browser. The communications assistant then orally relays those typed messages to the hearing person on the other end of the phone call, and types back to the hearing-impaired person whatever the hearing person says in reply.

Plaintiff prefers to use a relay service called Purple, which specializes in video relay. (See Pl.'s Mot. Ex. 1 at 33:6-10). Video relay "works much like a video call that any caller might make using a digital platform such as Skype or Apple FaceTime":

The video call is placed to an American Sign Language interpreter, employed by the [video relay service] provider, who then makes a standard voice call to the video caller's hearing recipient. The interpreter signs with the caller via the visual connection and speaks with the recipient via the voice connection, translating messages back and forth.

Sorenson Commc'ns, Inc. v. FCC , 765 F.3d 37, 40 (D.C.Cir.2014).

Plaintiff's video relay call through Purple on September 30, 2011 was initially accepted by the Fraud Department. (Pl.'s Mot. Ex. 1 at 35:9-11). She was asked a number of security questions, all of which she answered correctly, and was then transferred to someone else who asked her the same security questions, which she again answered correctly. (Id. at 35:12-21, 37:1-18). Plaintiff was then told that the Fraud Department could not accept third-party calls, and that, "for security reasons," she would have to either call back using a TTY or go to her local Bank of America branch to conduct her business. (Id. at 37:18-38:3, 39:9-25). Unfortunately, Plaintiff's TTY was not working at the time, so later that same day, Plaintiff took time off from work to go to her local Bank of America branch, where she was able to get the funds transferred to her new account and close her old account. (Id. at 41:1-42:6, 44:1-4; Pl.'s Reply at 8).

Since September 30, 2011, Plaintiff has continued to bank with Defendant, but she has not tried to contact the bank again via phone, opting instead to visit its branches in person. (Pl.'s Mot. Ex. 1 at 45:23-46:7). Plaintiff admits that she suffered no monetary damages as a result of this incident, and states only the following as to her damages: "It was humiliating and embarrassing, it was discriminatory and caused a lot of stress, and I had to take time off of work, which hearing people wouldn't have to do, so that I could conduct my business with the bank." (Id. at 46:8-24).

b. The Bank Of America Policies Challenged By Plaintiff

Discovery revealed that in September 2011, Bank of America's Fraud Department had a guideline prohibiting its associates "from conducting banking transactions by telephone calls made through third-party vendors, such as a relay service, for security reasons," given that "highly sensitive and private information related to the [bank's] customers are exchanged" through a third-party during such calls. (Def.'s Mot. Ex. 10 ¶¶ 5-6). Specifically, the Fraud Department guideline stated: "Do not accept calls from 3rd party TDD (Telecommunications Device for the Deaf) vendors." (Def.'s Mot. Ex. 5). The guideline did, however, enable associates in the Fraud Department "to conduct all banking transactions" if a customer called via TTY because, "[w]hen a customer calls through the Bank's TTY line, a third-party is not present, and only the Bank associate and the customer have access to the customer's private information during the telephone call." (Def.'s Mot. Ex. 10 ¶¶ 7-8; see also Def.'s Mot. Ex. 5).

Discovery also revealed that in February 2012, about two months before Plaintiff filed her lawsuit, the Fraud Department guideline was replaced by a new guideline which allows associates in the Fraud Department to "conduct all banking transactions by telephone if a customer calls using a third-party vendor, such as a relay service." (Def.'s Mot. Ex. 10 ¶¶ 9, 11). Specifically, the new guideline states that "[a]ssociates MUST accept calls from Telephone, Internet and Video Relay Service associates/providers." (Def.'s Mot. Ex. 6) (capitalization in original). Accordingly, if Plaintiff used a third-party relay service today to conduct the same transaction that she was unable to complete on September 30, 2011, she would be able to do so. (Def.'s Mot. Ex. 4 at 41:10-21).

Discovery also revealed two other ways in which Defendant has treated calls made using third-party relay services differently than other calls.

First, employees at Bank of America branches are required to transfer all third-party relay calls to a call center and cannot take those calls themselves, while they are given the freedom to decide to either handle non-third-party relay calls themselves or transfer such calls to a call center. (Pl.'s Mot. Ex. 6 at 18:4-20:19; Pl.'s Mot. Ex. 7 at 17:2-19:9; Def.'s Opp'n Ex. 1 at 29:7-21, 31:4-32:19). Plaintiff frames this policy as potentially disadvantageous to Defendant's hearing-impaired customers who may want to speak on the phone with an employee of their local Bank of America branch with whom ...