Mark Tauscher v. Phoenix Bd. of Realtors, Inc. , 931 F.3d 959 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK TAUSCHER, No. 17-17218
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-00125-
SPL
PHOENIX BOARD OF REALTORS,
INCORPORATED, DBA Phoenix
Association of Realtors, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted May 13, 2019
San Francisco, California
Filed July 25, 2019
Before: Sidney R. Thomas, Chief Judge, Sandra S. Ikuta,
Circuit Judge, and Donald W. Molloy,* District Judge.
Opinion by Judge Ikuta
*
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
2 TAUSCHER V. PHOENIX BD. OF REALTORS
SUMMARY**
Americans with Disabilities Act
The panel reversed the district court’s grant of summary
judgment in favor of the defendant in an action brought under
Title III of the Americans with Disabilities Act and the
Arizonans with Disabilities Act.
Plaintiff, a profoundly deaf individual who is a licensed
real estate salesperson, alleged that the Phoenix Association
of Realtors failed to comply with the ADA and AzDA when
it denied plaintiff’s requests for an American Sign Language
interpreter at continuing education courses.
A public accommodation must furnish appropriate
auxiliary aids and services where necessary to ensure
effective communication with individuals with disabilities.
The panel held that PAR was not required to provide the
specific aid or service requested by plaintiff, but there was a
genuine issue of material fact as to whether PAR offered
plaintiff a means of communication that was effective.
The panel held that the ADA’s requirement that an
employer engage in an interactive process regarding possible
accommodations does not apply in the context of public
accommodations and services. Accordingly, PAR was
not discharged of its obligation to ensure effective
communication merely because plaintiff did not engage in
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TAUSCHER V. PHOENIX BD. OF REALTORS 3
further discussion with PAR regarding measures other than an
ASL interpreter.
The panel concluded that the question whether providing
an ASL interpreter would result in an undue burden on PAR
raised complex issues that the district court was better able to
address in the first instance. The panel vacated the district
court’s summary judgment and remanded for proceedings
consistent with its opinion.
COUNSEL
William August Richards (argued) and David E. Wood,
Baskin Richards PLC, Phoeniz, 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.
4 TAUSCHER V. PHOENIX BD. OF REALTORS
OPINION
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 manger for product development
and is also a licensed real estate salesperson in Arizona.
1
On this appeal from a grant of summary judgment, we view the facts
in the light most favorable to Mark Tauscher, the non-moving party.
White v. Pauly, 137 S. Ct. 548, 550 (2017).
TAUSCHER V. PHOENIX BD. OF REALTORS 5
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
2
The legal name of the defendant is the Phoenix Board of Realtors,
Inc., dba Phoenix Association of Realtors.
6 TAUSCHER V. PHOENIX BD. OF REALTORS
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.
TAUSCHER V. PHOENIX BD. OF REALTORS 7
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
3
Because the state provisions under the Arizonans with Disabilities
Act (AzDA) mirror Title III of the ADA, see A.R.S. § 41-1492.02(A), and
Arizona regulations expressly adopt 28 C.F.R. §§ 36.101–36.104,
36.301–36.311, to govern the AzDA, see Ariz. Admin. Code § R10-3-404,
the same analysis applies to both the federal and state claims.
8 TAUSCHER V. PHOENIX BD. OF REALTORS
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
4
The regulations define “place of public accommodation” to mean “a
facility operated by a private entity whose operations affect commerce and
fall within at least one of” 12 specified categories, and define “public
accommodation” to mean “a private entity that owns, leases (or leases to),
or operates a place of public accommodation.” 28 C.F.R. § 36.104. We
use the term “public accommodation” to mean both a place of public
accommodation and a person that owns, leases, or operates one.
TAUSCHER V. PHOENIX BD. OF REALTORS 9
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
10 TAUSCHER V. PHOENIX BD. OF REALTORS
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. Because the
regulations provide that disabled individuals should not be
“segregated or otherwise treated differently than other
individuals because of the absence of auxiliary aids and
services,” id. § 36.303(a), this suggestion did not satisfy
PAR’s obligations.
PAR also offered to “make the instructor available for
questions at breaks and lunch” if Tauscher wished to attend
the session and rely on lipreading. Because Tauscher
provided evidence that he was a poor lip reader, there is a
genuine issue of material fact as to whether PAR’s offer
would have resulted in effective communication for Tauscher.
Finally, there is a genuine issue of material fact as to
whether PAR offered to provide a captioning system. PAR
argues on appeal that captioning would be an effective means
of communication, but there is evidence in the record that
PAR did not offer Tauscher the use of any captioning system.
In her deposition, Scherer testified that PAR did not offer
Tauscher any sort of closed-captioning option or court-
reporter alternative, but rather had concluded that a computer-
based captioning system would have been too costly, and
therefore was not a feasible alternative. Tauscher also asserts
that captioning would not be an effective means of
communication because he is not proficient in English.
Accordingly, we conclude that there is a genuine issue of
TAUSCHER V. PHOENIX BD. OF REALTORS 11
material fact as to whether PAR took the steps that were
necessary to ensure effective communication with Tauscher.
C
We next consider PAR’s argument that it satisfied its
obligations under the ADA because Tauscher refused to
engage in a discussion about alternative auxiliary aids other
than an ASL interpreter. The district court relied on this
ground in granting PAR’s motion for summary judgment.
This argument is based on the ADA’s requirements in the
employment context. See Title I of the ADA, 42 U.S.C.
§§ 12111–12117. In this context, a covered employer
generally must provide a reasonable accommodation for an
otherwise qualified employee or applicant with a disability,
if such an accommodation is requested. 29 C.F.R. § 1630.2;
see also id. Appendix. In order to identify an appropriate
reasonable accommodation, the employer generally must
“initiate an informal, interactive process with the individual
with a disability in need of the accommodation.” Id.§ 1630.2(o)(3). “The interactive process requires
communication and good-faith exploration of possible
accommodations between employers and individual
employees, and neither side can delay or obstruct the
process.” Humphrey v. Mem. Hosps. Ass’n, 239 F.3d 1128,
1137 (9th Cir. 2001).
The ADA does not make this “interactive process”
requirement applicable to public accommodations and
services. See Title III of the ADA, 42 U.S.C.
§§ 12181–12189. Title III and its implementing regulations
make no mention of an “interactive process” that mirrors the
process required in the employment context. Although the
12 TAUSCHER V. PHOENIX BD. OF REALTORS
regulations suggest that 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 public accommodation itself
is independently responsible for making the “ultimate
decision as to what measures to take.” 28 C.F.R.
§ 36.303(c)(1)(ii). Nor is there any basis for holding that a
public accommodation is relieved of its obligation to provide
appropriate auxiliary aids and services if the individual
requesting such measures fails to engage in a good faith
exploration of what measures would provide effective
communication. PAR does not cite any precedent on point,
and we are aware of none. Cf. Koester v. Young Men’s
Christian Ass’n of Greater St. Louis, 855 F.3d 908, 912 (8th
Cir. 2017) (assuming for purposes of argument that the
interactive process was applicable to a Title III case, but
noting its “hefty” skepticism that such concepts did apply in
this context).5 Accordingly, we conclude that PAR was not
discharged of its obligation to ensure effective
communication merely because Tauscher did not engage in
further discussion with PAR regarding measures other than an
ASL interpreter.
D
PAR also argues that, even if it did not offer an auxiliary
aid or service that would have resulted in effective
communication for Tauscher, it is entitled to judgment as a
matter of law because it demonstrated that any additional
5
PAR also cites Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002), to
support its claim that the interactive process is applicable in the Title III
context, but Vinson construed Title II of the ADA (covering public
employment), not Title III, see id. at 1148.
TAUSCHER V. PHOENIX BD. OF REALTORS 13
measure (such as an ASL interpreter or closed captioning)
would have resulted in an undue burden on PAR. See
28 C.F.R. § 36.303(a); Arizona ex rel. Goddard v. Harkins
Amusement Enters., Inc., 603 F.3d 666, 675 (9th Cir. 2010).
The ADA regulations define “undue burden” to mean a
“significant difficulty or expense,” taking into account a
range of factors relating to the cost of the action compared to
the financial resources of the public accommodation.
28 C.F.R. § 36.104 (enumerating factors to consider in the
undue burden analysis). A determination as to whether an
action would place an undue burden on a public
accommodation requires a holistic analysis of the financial
resources available to the public accommodation, including
its profits and operating expenses, as well as the nature and
frequency of the expense. See id. The Eighth Circuit
provided an example of an undue burden analysis in its
consideration of whether a district court erred in holding,
after a bench trial, that a daycare center was not required to
provide a one-on-one caregiver to a disabled child. Roberts
v. KinderCare Learning Ctrs., Inc., 86 F.3d 844, 846–47 (8th
Cir. 1996). The Eighth Circuit reasoned that the daycare
center “pays a full-time aid about $200 per week,” while the
tuition for the child was only $105 per week, meaning that the
daycare center would suffer a $95 per week loss. Id. at 846.
The court concluded that this was “a substantial financial
burden when considered in the light of the [daycare center’s]
$9,600 per month operating income.” Id. The court declined
to consider the financial resources of the daycare center’s
parent corporation, because the daycare center was
“responsible for remaining independently profitable and
cannot rely on any resources from” its parent or affiliates. Id.at 846–47. The Eighth Circuit concluded that because the
requested measure would impose an undue burden on the
14 TAUSCHER V. PHOENIX BD. OF REALTORS
daycare center, the measure was not reasonable within the
meaning of the ADA. Id. at 847. The Eighth Circuit
therefore affirmed the district court’s judgment. Id.In this case, PAR argues that it charges only a $20
registration fee for its courses, but the cost of an ASL
interpreter for the February 2013 course would have been
between $1,680 and $3,360. PAR asserts it already loses
money in providing these continuing education courses, and
the loss of an additional $1,560 would be a “significant
difficulty or expense.” 28 C.F.R. § 36.104. Further, PAR
states that it suffered a net loss of $8,109.88 in February
2013, and does not have a parent corporation that can
contribute to PAR’s overall financial resources. Therefore,
PAR argues that under KinderCare, we should conclude as a
matter of law that providing an ASL interpreter would be an
undue burden. In response, Tauscher argues that the cost of
an ASL interpreter would not be an undue burden on PAR
because PAR had sufficient funds to cover that cost.
Specifically, Tauscher points to evidence in the record that
the value of PAR’s assets in cash or cash equivalents was
$839,606 at the end of fiscal year 2014 and $1,099,152 at the
end of fiscal year 2013, although the record does not include
information about PAR’s liabilities during those years.
The question whether providing an ASL interpreter would
result in an undue burden raises complex issues that the
district court is better able to address in the first instance. See
Ariz. Libertarian Party, Inc. v. Bayless, 351 F.3d 1277, 1283
(9th Cir. 2003). The district court did not consider whether
Tauscher’s evidence regarding PAR’s overall financial
resources raised a genuine issue of material fact on this issue.
Accordingly, we think it is prudent to allow the district court
to consider this issue in the first instance.
TAUSCHER V. PHOENIX BD. OF REALTORS 15
III
In sum, PAR is not entitled to summary judgment because
engaging in dialogue with Tauscher did not satisfy its
obligations under the ADA. Moreover, there is a genuine
issue of material fact as to whether PAR offered an auxiliary
aid or service that would provide effective communication to
Tauscher.6 We vacate the district court’s grant of summary
judgment to PAR and remand for proceedings consistent with
this opinion.
VACATED AND REMANDED.
6
To the extent Tauscher argues that the district court erred by denying
his motion for summary judgment because PAR failed to satisfy its
obligations under Title III as a matter of law, we reject that argument.
Viewing the record in the light most favorable to PAR, there is a genuine
issue of material fact regarding whether PAR offered an auxiliary aid or
service that would result in effective communication for Tauscher.
Moreover, for the reasons we have explained, the district court should
have the opportunity to consider in the first instance whether providing an
ASL interpreter would have resulted in an undue burden on PAR.