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Innes v. Board of Regents of University System of Maryland

United States District Court, D. Maryland

March 16, 2015

JOSEPH INNES, et al.
v.
THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF MARYLAND, et al.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this disability discrimination case are the following motions: (1) a motion for partial summary judgment filed by Plaintiffs Joseph Innes, Sean Markel, and Danny Rinas (collectively, "Plaintiffs") (ECF No. 58); (2) a motion to seal filed by Plaintiffs (ECF No. 59); (3) two motions to exclude testimony of Heather York and Jeffrey B. Pelz, filed by Defendants Board of Regents of the University System of Maryland ("the Board of Regents") and the University of Maryland College Park ("the University of Maryland") (collectively, "Defendants") (ECF Nos. 61 & 62); (4) a motion for summary judgment filed by Defendants (ECF No. 63); and (5) a motion for leave to file a surreply filed by Plaintiffs (ECF No. 74). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, both motions for summary judgment will be denied. Defendants' two motions to exclude will be denied without prejudice to refiling later in this litigation if necessary. Plaintiffs' motion for leave to file a surreply will be granted. The motion to seal will be granted.

I. Background

The factual allegations are set forth in a prior memorandum opinion and need not be repeated here. See Innes v. Board of Regents of University System of Maryland, 29 F.Supp.3d 566 (D.Md. 2014). As relevant here, Plaintiffs Dr. Joseph Innes, Sean Markel, and Daniel Rinas are each deaf or hard of hearing. Defendant University of Maryland, College Park, is a public entity and recipient of federal financial assistance. Defendant Board of Regents of the University System of Maryland is a public entity and the governing body for the University. Plaintiffs have attended sporting events including football and basketball games at the Capital One Field at Byrd Stadium ("Byrd Stadium") and the Comcast Center at the University of Maryland. Plaintiffs also access Defendants' athletics website - UMTerps.com, and within it, TerpsTV. In essence, Plaintiffs contend that Defendants failed to provide effective communication for deaf or hard of hearing individuals at Byrd Stadium and Comcast Center and on UMTerps.com. Plaintiffs believe that all aural content at Byrd Stadium, Comcast Center, and on the website should be captioned in order to provide effective communication under the disability laws, and further assert that captioning can be - but is not - displayed on Jumbotrons, LED ribbon boards, or scoreboards located throughout Defendants' venues. Plaintiffs further aver that captioning can also be placed on pre-produced and live videos displayed on UMTerps.com. Additional facts will be presented in the analysis section below.

Plaintiffs filed a complaint against the University of Maryland, the Board of Regents, and President Wallace D. Loh, in his official capacity, on September 24, 2013. (ECF No. 1). Plaintiffs later submitted a second amended complaint - the operative pleading here - on January 8, 2014. (ECF No. 33). The second amended complaint asserts two claims: (1) discrimination under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131; and (2) discrimination under the Rehabilitation Act, 29 U.S.C. § 504. (ECF No. 33, at 8-10). Plaintiffs assert that Defendants have failed to provide auxiliary aids and services to ensure effective communication with individuals who are deaf or hard of hearing concerning aural information: (1) available on Defendants' athletic website; and (2) projected into the stadium bowls and concourse areas at Byrd Stadium and Comcast Center. ( Id. at 9-10). Plaintiffs seek compensatory damages, declaratory judgment, and injunctive relief. ( Id. at 10-11).

Defendants moved to dismiss the second amended complaint, which was granted in part and denied in part by memorandum opinion and order issued on July 1, 2014. (ECF Nos. 64 & 65). All claims against Defendant Loh were dismissed. Plaintiffs then moved for partial summary judgment (ECF No. 58), Defendants opposed the motion and cross moved for summary judgment (ECF No. 63), and Plaintiffs filed a reply memorandum and opposition to Defendants' motion (ECF No. 69). Defendants filed a reply memorandum in further support of their motion for summary judgment. (ECF No. 72). Defendants also filed two motions to exclude testimony of expert witnesses (ECF Nos. 61 & 62), and both motions have been fully briefed. Subsequently, Plaintiffs moved for leave to file a surreply (ECF No. 74), Defendants opposed the motion (ECF No. 75), and Plaintiffs replied (ECF No. 76). Plaintiffs also filed a motion to seal (ECF No. 59), and Defendants filed a response (ECF No. 73).

II. Analysis

A. Defendants' Motions to Exclude

Defendants filed two motions to exclude testimony from two witnesses, whom Plaintiffs have designated as experts: Heather York and Jeffrey P. Pelz. (ECF Nos. 61 & 62). As will be seen, the admissibility of this evidence need not be resolved in order to adjudicate the pending motions for summary judgment. Moreover, it may well be that Plaintiffs will not seek to rely on these witnesses later in this litigation. Accordingly, both motions will be denied without prejudice to refiling later in the litigation if necessary.

B. Cross Motions for Summary Judgment

1. Standard of Review

Both parties move for summary judgment.[1] A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Once a properly supported motion for summary judgment is filed, the nonmoving party is required to make a sufficient showing on an essential element of that party's claim as to which that party would have the burden of proof to avoid summary judgment. Celotex, 477 U.S. at 322-23.

Summary judgment is appropriate under Federal Rule of Civil Procedure Rule 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (1986), the Supreme Court explained that, in considering a motion for summary judgment, the "judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.

In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ( quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a "scintilla" of evidence in support of the non-moving party's case is not sufficient to preclude an order granting summary judgment. See Anderson, 477 U.S. at 252.

A "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) ( quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).

When, as here, the parties have filed cross-motions for summary judgment, the court must consider "each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.'" Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cor. 2003) (citation omitted). "Both motions must be denied if the court finds that there is a genuine [dispute] of material fact. But if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment." 10A Wright, Miller & Kane, Federal Practice & Procedure § 2720, at 336-37 (2014).

2. Title II of the ADA and Section 504 of the Rehabilitation Act

Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."[2] 42 U.S.C. § 12132. "Discrimination" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A); see also Paulone v. City of Frederick, 787 F.Supp.2d 360, 372 (D.Md. 2011) (discussing the equivalence of "reasonable accommodations" and "reasonable modifications"). Similarly, Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from participation in, or be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). "Despite the general congruence of Title II of the ADA and § 504 of the Rehabilitation Act, ... a plaintiff must show a different causative link between discrimination and adverse action' under the two statutes." Paulone v. City of Frederick, 787 F.Supp.2d 360, 370 (D.Md. 2011) ( citing Baird ex rel. Baird v. Rose, 192 F.3d 462, 469 (4th Cir. 1999)). Under Title II, a plaintiff need only prove discrimination "by reason of" disability. 42 U.S.C. § 12132. A successful Rehabilitation Act claim, however, requires a showing of discrimination "solely by reason of" disability. 29 U.S.C. § 794(a).

A plaintiff seeking recovery for violation of either Title II of the ADA or Section 504 of the Rehabilitation Act must establish that: (1) he has a disability, (2) he is otherwise qualified to receive the benefits of a public service, program, or activity, and (3) he was excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of his disability. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005). Only the third element is in dispute.

Pursuant to statutory mandate, the Department of Justice has promulgated regulations interpreting and implementing both Title II of the ADA and Section 504 of the Rehabilitation Act. The regulations under the two statutes must be "consistent" with each other, 42 U.S.C. § 12134(b), and courts may not construe the provisions of the ADA "to apply a lesser standard than the standards applied under [the Rehabilitation Act] or the regulations issued by Federal agencies pursuant" to the Rehabilitation Act. Id. § 12201(a).[3] The Justice Department's interpretive regulations elucidate the requirement of reasonable accommodations. Under 28 C.F.R. § 35.130(b)(7), a public entity must "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." With regard to communication-related disabilities, the regulations require public entities to "take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others, " id. § 35.160(a), and to "furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity." Id. § 35.160(b)(1).

"Auxiliary aids or services" are defined by both statute and regulation. See 42 U.S.C. § 12103(1); 28 C.F.R. § 35.104. The regulation is more expansive. Examples of auxiliary aids and services include: "open and closed captioning, including real-time captioning, " the "[a]cquisition or modification of equipment or devices, " and "[o]ther similar services and actions." 28 C.F.R. § 35.104. The regulation governing effective communication acknowledges that:

The type of auxiliary aid or service 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. § 35.160(b)(2). Notably, the regulation further instructs:

In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests ...

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