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Tauscher v. Phoenix Board of Realtors, Inc.

United States Court of Appeals, Ninth Circuit

July 25, 2019

Mark Tauscher, Plaintiff-Appellant,
v.
Phoenix Board of Realtors, Incorporated, DBA Phoenix Association of Realtors, Defendant-Appellee.

          Argued and Submitted May 13, 2019 San Francisco, California

          Appeal 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.

          Brian 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.

         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 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.

          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 ...


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