United States District Court, D. Arizona
HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.
moves for summary judgment as to all claims asserted by
Plaintiffs Brian Embrey, Emily Embrey, Tony Rodriguez, Brenda
Rodriguez, Laurie Reynolds-Sherwood, Mitchell Siegel, Dawn
Siegel, Patsy Orlando, and Marlene Orlando (Doc.
The Court rules as follows.
Mitchell Siegel, Dawn Siegel, Tony Rodriquez, Brenda
Rodriquez, Laurie Reynolds-Sherwood, Jesus Casarez, Jessica
Armenta, Patsy Orlando, Marlene Orlando, Emily Embrey, and
Brian Embrey filed this action against Defendant Dignity
Health- doing business as Chandler Regional Medical Center
and Mercy Gilbert Medical Center- for alleged violations of:
(1) Title III of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12181-12189, and
its implementing regulations, 28 C.F.R. pt. 36 (Doc. 24 at 23
25); (2) Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794, and its implementing regulations, 45 C.F.R. pt.
84 (Doc. 24 at 25-26); and (3) the Arizonans with
Disabilities Act (“AzDA”), Ariz. Rev. Stat.
§ 41-1492 (Doc. 24 at 26-27).
Plaintiffs are either deaf individuals or the family members
of deaf individuals (Doc. 24 at 2), and allege similar facts
involving Defendant's failure to provide auxiliary aids
to ensure effective communication with Plaintiffs regarding
either their own medical care or the medical care of a family
member (Doc. 24 at 20-23). Defendant argues summary judgment
is warranted as to nine Plaintiffs because there is no
genuine issue of material fact for a juror to conclude that
Dignity Health denied Plaintiffs effective communication.
Standard of Review
shall grant summary judgment if the pleadings and supporting
documents, viewed in the light most favorable to the
non-moving party, “show 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). Material facts are those facts “that
might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A genuine dispute of material fact
arises when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
party moving for summary judgment bears the initial burden of
proving the absence of a genuine issue of material fact.
Celotex Corp., 477 U.S. at 322. If the movant meets
its burden, “its opponent must do more than simply show
that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, “the
nonmoving party must come forward with ‘specific facts
showing that there is a genuine issue for trial.'”
Id. at 587 (citation omitted).
ADA, Rehabilitation Act, and AzDA
III of the ADA prohibits discrimination against the disabled
in the full and equal enjoyment of public
accommodations.” Spector v. Norwegian Cruise Line
Ltd., 545 U.S. 119, 128 (2005). To successfully bring a
claim under Title III of the ADA, a plaintiff must
demonstrate that “(1) he is disabled within the meaning
of the ADA; (2) the defendant is a private entity that owns,
leases, or operates a place of public accommodation; and (3)
the plaintiff was denied public accommodations by the
defendant because of his disability.” Arizona ex
rel. Goddard v. Harkins Amusement Enters., Inc., 603
F.3d 666, 670 (9th Cir. 2010). The parties do not dispute
that Plaintiffs are disabled or that Defendant's
facilities are public accommodations under Title III.
Accordingly, each of the Plaintiff's claims are dependent
on whether Defendant discriminated against them in violation
of applicable law.
under Title III of the ADA includes a public
accommodation's “failure to take such steps as 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.” 42 U.S.C. §
12182(b)(2)(A)(iii). As explained in Title III's
implementing regulations, “[a] public accommodation
shall furnish appropriate auxiliary aids and services where
necessary to ensure effective communication with individuals
with disabilities.” 28 C.F.R. § 36.303(c)(1).
Appropriate auxiliary aids and services include on-site
qualified interpreters,  video remote interpreting
(“VRI”) services, written materials, and the
exchange of handwritten notes. 28 C.F.R. § 36.303(b)(1).
The appropriateness of an auxiliary aid or service is
dependent on: (1) “the method of communication used by
the individual”; (2) “the nature, length, and
complexity of the communication involved”; and (3)
“the context in which the communication is taking
place.” 28 C.F.R. § 36.303(c)(1)(ii). “In
order to be effective, auxiliary aids and services must be
provided in accessible formats, in a timely manner, and in
such as way as to protect the privacy and independence of the
individual with a disability.” Id. Although a
public accommodation should consult with disabled individuals
as to the type of auxiliary aid needed, the ultimate decision
rests with the public accommodation, so long as the method
results in effective communication. 28 C.F.R. §
36.303(c)(1)(ii); see also McCullum v. Orlando Reg'l
Healthcare Sys., Inc., 768 F.3d 1135, 1147 (11th Cir.
2014) (“The regulations do not require healthcare
providers to supply any and all auxiliary aids even if they
are desired or demanded.”); Liese v. Indian River
Cty. Hosp. Dist., 701 F.3d 334, 342-43 (11th Cir. 2012)
(noting the difference between “demanded” and
“necessary” auxiliary aids and stating “the
proper inquiry is whether the auxiliary aid that a hospital
provided to its hearing-impaired patient gave that patient an
equal opportunity to benefit from the hospital's
a public accommodation, such as Defendant, has provided
patients with appropriate auxiliary aids “is inherently
fact-intensive.” Liese, 701 F.3d at 342;
see Chisolm v. McManimon, 275 F.3d 315, 327 (3rd
Cir. 2001) (“Generally, the effectiveness of auxiliary
aids and/or services is a question of fact precluding summary
judgment.”). Accordingly, in the motion, because the
arguments categorically rest on factual details, Defendant
addresses each Plaintiff in turn. Plaintiffs' response,
on the other hand, fails to include any in-depth discussion
of the facts or arguments raised by Defendant with respect to
each individual Plaintiff. Instead, Plaintiffs lump
all of their claims together and argue generally that
Defendant's unreliable VRI system fails to meet the
required standards set forth in the ADA's implementing
regulations (Doc. 76 at 11-14), see 28 C.F.R. §
36.303(f), Plaintiffs are only capable of communicating the
simplest of matters through written notes (Doc. 76 at 14-18),
it was inappropriate for Defendant to rely on family members
to serve as interpreters (Doc. 76 at 18-19), and Defendant
had a duty to provide in-person interpreters to Plaintiffs in
the absence of a functional VRI system (Doc. 76 at 19-20).
Although this Court is required to review the record prior to
granting a motion for summary judgment, it is not
this Court's role to advocate on behalf of a party and
search through voluminous records to substantiate that
party's claims. “Judges are not like pigs, hunting
for truffles buried in briefs.” U.S. v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). “Nor
are they archaeologists searching for treasure.”
Jeralds ex rel. Jeralds v. Astrue, 754 F.Supp.2d
984, 985 n.1 (N.D. Ill. 2010). Nevertheless, this Court will
address each of Defendant's arguments to determine
whether it has met the initial burden of proving the absence
of a genuine issue of material fact. See Celotex
Corp., 477 U.S. at 322.
Brian and Emily Embrey
Brian and Emily Embrey are married deaf individuals who bring
claims related to alleged discrimination they experienced
during Plaintiff Brian Embrey's treatment at
Defendant's facilities in 2015 (Doc. 24 at ¶ 15).
Defendant has moved for summary judgment on each of
Plaintiffs' claims, arguing ...