and Submitted May 13, 2019 San Francisco, California
from the United States District Court for the District of
Arizona D.C. No. 2:15-cv-00125-SPL Steven Paul Logan,
District Judge, Presiding
William August Richards (argued) and David E. Wood, Baskin
Richards PLC, Phoeniz, Arizona; Andrew Rozynski, Eisenberg
& Baum, New York, New York; for Plaintiff-Appellant.
Alexander Howie (argued) and Eric B. Johnson, Quarles &
Brady LLP, Phoenix, Arizona, for Defendant-Appellee.
Before: Sidney R. Thomas, Chief Judge, Sandra S. Ikuta,
Circuit Judge, and Donald W. Molloy, [*] District Judge.
with Disabilities Act
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.
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.
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.
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
further discussion with PAR regarding measures other than an
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.
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.
Tauscher has profound hearing loss, meaning that he cannot
hear sounds that are less than 90 decibels loud (about as
loud as a lawnmower). 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