United States District Court, D. Arizona
G, Campbell Senior United States District Judge.
Daniel Bustos and his daughter Constancia assert disability
discrimination claims against Defendant Dignity Health. Doc.
1. Defendant moves for summary judgment. Doc. 43. The motion
is fully briefed (Docs. 51, 55), and oral argument will not
aid in the Court's decision. See Fed R. Civ. P.
78(b). For reasons stated below, the Court will deny the
lost his hearing at the age of three. His primary and
preferred form of communication is American Sign Language
(“ASL”). Constancia is not a licensed ASL
interpreter, but is proficient in ASL and sometimes
interprets for Daniel.
September 13, 2015, Plaintiffs went to Defendant's
hospital in Chandler, Arizona because Daniel was experiencing
chest pain. He was admitted to the hospital and underwent
heart surgery to repair a blocked artery. He was discharged
one day after the surgery.
filed suit in August 2017, claiming that Defendant
discriminated against them based on Daniel's deafness by
failing to provide an effective means of communication and
forcing Constancia to serve as an interpreter. Doc. 1.
Plaintiffs allege that the hospital's video remote
interpreting (“VRI”) system never worked and
hospital staff denied Plaintiffs' requests for an
in-person interpreter. Id. at 5-8. The complaint
asserts claims under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12181 et seq., the
Rehabilitation Act of 1973 (“Rehab Act”), 29
U.S.C. § 794, the Patient Protection and Affordable Care
Act (“ACA”), 42 U.S.C. § 18116, and the
Arizonans with Disabilities Act (“AzDA”), A.R.S.
§ 41-1492. Id. at 8-15. Plaintiffs seek
declaratory and injunctive relief, compensatory damages, and
attorneys' fees and costs. Id. at 15-17.
Summary Judgment Standard.
judgment is warranted where the moving party “shows
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). Only disputes over facts that might
affect the outcome of the suit will preclude summary
judgment, and the disputed evidence must be “such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The evidence must be viewed in the
light most favorable to the nonmoving party, and all
justifiable inferences are drawn in that party's favor
because “[c]redibility determinations, the weighing of
evidence, and the drawing of inferences from the facts are
jury functions[.]” Id. at 255; see
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
Discrimination Under the Relevant Statutes.
does not dispute that it is subject to the
anti-discrimination provisions of the ADA, Rehab Act, ACA,
and AzDA, and the parties agree that the elements of a
discrimination claim under these statutes are similar. Docs.
47 at 51, 51 at 2 n.1; see Updike v. Multnomah
County, 870 F.3d 939, 949 (9th Cir. 2017) (ADA expressly
modeled after Rehab Act); Schmitt v. Kaiser Found. Health
Plan of Wash., No. C17-1611-RSL, 2018 WL 4385858, at *1
(W.D. Wash. Sept. 14, 2018) (ACA and Rehab Act claims are the
same); Muhaymin v. City of Phoenix, No.
CV-17-04565-PHX-SMB, 2019 WL 699170, at *8 (D. Ariz. Feb. 20,
2019) (AzDA is consistent with the ADA); Duvall v. County
of Kitsap, 260 F.3d 1124, 1135-36 (9th Cir. 2001)
(addressing the plaintiff's ADA, Rehab Act, and state law
discrimination claims together). To prove that a defendant
violated these laws, the disabled plaintiff must show that he
was denied the defendant's services because of the
disability. 42 U.S.C. § 12182(a); 29 U.S.C. §
794(a); 42 U.S.C. § 18116(a); A.R.S. §
41-1492.02(B); see Updike, 870 F.3d at 949;
Duvall, 260 F.3d at 1135-36.
hospital is liable to deaf patients where it fails to provide
auxiliary aids needed for “effective
communication.” 42 U.S.C. § 12182(b)(2)(A); 28
C.F.R. § 36.303(c)(1); 45 C.F.R. § 92.202(a);
see Robles v. Domino's Pizza, LLC, 913 F.3d 898,
906 (9th Cir. 2019). The type of auxiliary aid
“necessary to ensure effective communication will vary
in accordance with the method of communication used by the
individual; the nature, length, and complexity of the
communication involved; and the context in which the
communication is taking place.” 28 C.F.R. §
36.303(c)(1)(ii). Available auxiliary aids for deaf
individuals include qualified in-person interpreters, VRI,
computer-aided transcription services, written materials, and
the exchange of handwritten notes. 42 U.S.C. § 12103(1);
28 C.F.R. §§ 35.104(a), 36.303(b); see
Updike, 870 F.3d at 949-50; Arizona v. Harkins
Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir.
2010). “In determining what type of auxiliary aid is
necessary, a public entity must ‘give primary
consideration' to the accommodation requested by the
disabled individual.” Updike, 870 F.3d at 950
(quoting 28 C.F.R. § 35.160(b)(2)); see Duvall,
260 F.3d at 1137; 28 C.F.R. § Pt. 35, App. A.
regulations implementing the ADA prohibit a hospital from
requiring a deaf patient to bring another person to interpret
for him. 28 C.F.R. § 36.303(c)(2). The regulations also
prohibit the hospital from relying on the patient's
companion to interpret except in an emergency situation where
no interpreter is available, or where the patient
specifically requests that the companion provide such
assistance, the companion agrees to do so, and reliance on
the assistance is appropriate under the circumstances. 28
C.F.R. § 36.303(c)(3)(ii)-(iii); see also 45
C.F.R. § 92.201(e) (ACA regulations prohibiting the same
with respect to individuals with limited English