1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 K. Marie, No. CV-17-03167-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 Arizona Department of Economic Service, et al., 13 Defendants. 14 15 This matter is before the Court on Cross-Motions for Summary Judgment.1 Pro se 16 Plaintiff filed a Motion for Summary Judgment and a corresponding separate Statement 17 of Facts. (Docs. 107 and 108). Defendants filed a Response and Cross-Motion for 18 Summary Judgment, along with a separate Statement of Facts and a Controverting 19 Statement of Facts. (Docs. 111, 112, and 113). Plaintiff filed a Response to the Cross- 20 Motion for Summary Judgment and a Controverting Statement of Facts. 21 (Docs. 118 and 121). Plaintiff filed a Reply in support of her Motion for Summary 22 Judgment. (Doc. 119). Defendants filed a Reply in support of its Cross-Motion for 23 Summary Judgment. (Doc. 123).2 24 I. Background 25 Plaintiff filed her Complaint on September 14, 2017 (Doc. 1), a First Amended 26 1 Both parties requested oral argument in this matter. The Court finds that the issues have 27 been fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b) (court may decide motions without oral hearings); LRCiv 7.2(f) (same). 28 2 Defendants later withdrew an exhibit improperly filed with the Reply. (Doc. 124). 1 Complaint on February 12, 2018 (Doc. 7), and a Second Amended Complaint (“SAC”) 2 on June 1, 2018 (Doc. 21).3 Plaintiff’s SAC alleges that Defendants violated Title II of 3 the Americans with Disabilities Act of 1990 (the “ADA”), Section 504 of the 4 Rehabilitation Act of 1973 (the “Rehabilitation Act”), and the First and Ninth 5 Amendments to the Constitution. Plaintiff seeks injunctive relief, four million dollars in 6 compensatory damages and two million dollars in punitive damages. (Id.) Plaintiff also 7 seeks a number of public policy requests, including that the Court order the State of 8 Arizona to provide four hours of in person “interactive/experiential” disability training to 9 all current and future employees, and that the State award millions of dollars in grants to 10 the Arizona State School for the Deaf and Blind and the Arizona Center for the Blind 11 over the next ten years. (Id. at 15-17). 12 Plaintiff is blind, and does not read braille. (Doc. 21 at ¶ 8). She relies on other 13 means of technology to read documents, such as screen reading software that makes text 14 documents audible, and the help of others to read documents to her. (Id.) Plaintiff 15 receives Supplemental Nutrition Assistance Program (“SNAP”) benefits and health care 16 benefits from the State. (Id. at ¶¶ 5, 9). These programs are administered by Defendant 17 Arizona Department of Economic Services (“DES”). Plaintiff alleges that she first 18 attempted to apply for benefits in May 2014, but that the DES website was not arranged 19 in a way that was accessible to blind individuals, making it impossible for her to apply 20 for benefits. (Id. at ¶ 12). Plaintiff contacted DES about her problems accessing the 21 website, including by sending a letter to the Director of DES, and by contacting several 22 agency employees by telephone. (Id.) 23 Plaintiff was contacted by a DES employee who assisted her in enrolling in SNAP 24 and a health care benefit program. (Id.) However, Plaintiff alleges that Defendants failed 25 to provide her reasonable accommodations that would enable her to receive updates about 26 her benefits, and that the failure to provide these accommodations resulted in her benefits 27 3 Plaintiff attempted to file a fourth complaint (Doc. 61), which was stricken for failure to 28 seek leave to file an amended complaint. (Doc. 79). Thus, Plaintiff’s SAC is the operative complaint. 1 being “terminated/interrupted” on at least two occasions. (Doc. 21 at 3). She alleges that 2 Defendants acted intentionally and with deliberate indifference, and as a result of 3 Defendants’ failure to provide her a reasonable accommodation, she has suffered 4 “humiliation, frustration, and distress.” (Id.) Defendants contend that they not only 5 provided Plaintiff reasonable accommodations, but the specific accommodations that 6 Plaintiff requested. (Doc. 111). 7 The Court previously granted, in part, DES’s Motion for Judgment on the 8 Pleadings. (Doc. 102). Therein, the Court dismissed Plaintiff’s punitive damages claim 9 and her First and Ninth Amendment Claims. (Id.) Remaining are Plaintiff’s ADA and 10 Rehabilitation Act claims, and her requests for compensatory damages and injunctive 11 relief. 12 A. Plaintiff’s 2014 Accommodation Request 13 Unless otherwise noted, the following facts are not in dispute. Plaintiff sent a 14 letter to DES invoking the ADA in 2014, requesting that, because of her visual 15 impairment, any correspondence from DES be communicated to her by “verbal 16 and/or/audio communication.” (Doc. 108 at 45). Likewise, Plaintiff’s SAC alleges that 17 she requested “correspondence in an audible form.” (Doc. 21 at 5). Within two weeks of 18 receiving Plaintiff’s request, DES arranged for employee Sue Quayle to serve as a 19 qualified reader for Plaintiff, whereby Ms. Quayle would audibly read Plaintiff’s 20 correspondence to her over the phone in accordance with Plaintiff’s written 21 accommodation request. (Id. at 52). Ms. Quayle’s role was to periodically check 22 Plaintiff’s account for any correspondence that had been issued, and to call Plaintiff and 23 read the correspondence to her. (Doc. 113-1 at 52-53). In 2014, Ms. Quayle also 24 provided a number of additional accommodations to Plaintiff, including giving Plaintiff 25 her personal cell phone number so that Plaintiff could call or text Ms. Quayle at any time. 26 (Id.) 27 Defendants acknowledge a couple of instances where a letter was missed by Ms. 28 Quayle, including an incident where Plaintiff missed a deadline to reapply for benefits 1 and was temporarily disenrolled. (Doc. 112-1 at 14). However, that incident was 2 promptly corrected and did not result in any loss in SNAP or Medical Assistance benefits 3 or any financial loss to Plaintiff. (Id.) In May of 2016, Plaintiff sent a letter to Ms. 4 Quayle stating, “I still require, as a reasonable accommodation, audio contact by phone, 5 text, or email. The latter two being accessible by my phone.” (Doc. 112 at 4; Ex. F). 6 B. 2017 Notice of Claim 7 In June of 2017, in the course of preparing for this litigation, Plaintiff submitted a 8 Notice of Claim with the Arizona Attorney General, formally requesting that 9 correspondence be sent to her in an electronically readable format rather than receiving 10 the information verbally over the telephone. (Doc. 21; Doc. 112 at 5). Within a few 11 weeks of receiving the Notice of Claim, DES employee Monica Sheble reached out to 12 Plaintiff to determine exactly what accommodation she was requesting. (Id.) Plaintiff 13 told Ms. Sheble that she would like correspondence to be emailed to her, rather than read 14 over the phone. (Id.) Ms. Sheble recommended to her supervisor that Plaintiff be 15 provided with her newly requested accommodation and the Deputy Director of DES 16 Operations agreed. (Doc. 112 at 6). Within weeks of the request, Defendants thereafter 17 began to train employees, including Ms. Quayle, on how to facilitate Plaintiff’s new 18 accommodation request. (Doc. 111 at 4). Since 2018, DES converts Plaintiff’s notices 19 into a searchable PDF and sends them to her over email.4 (Id. at 2). Plaintiff agrees that 20 she has received this accommodation starting in 2018, but requests a permanent 21 injunction in order to ensure that the accommodation remains in place. (Doc. 21). 22 II. Summary Judgment Standard 23 The Court must grant summary judgment “if the movant shows that there is no 24 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 25 4 Plaintiff alleges that she received a few letters in the mail after her 2017 request that 26 were never converted. Defendants provide evidence that those mailings originated outside of DES, including a mailing Plaintiff refers to as a “Summer Lunch Buddies” 27 program flyer that originated with the Department of Health Services (“DHS”). (Doc. 112-1 at 48-50). DHS is not a party in this case. These flyers were part of a 28 “targeted zip code mailing” that went out to all DHS clients in Plaintiff’s zip code. Since the time of that mailing, DES now also converts all outside notices for Plaintiff as well. 1 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 2 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). The 3 materiality requirement means “[o]nly disputes over facts that might affect the outcome 4 of the suit under the governing law will properly preclude the entry of summary 5 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Substantive law 6 determines which facts are material. Id. The dispute must also be genuine, meaning the 7 “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 8 Id. at 242. 9 The moving party bears the initial burden of identifying the portions of the record, 10 including pleadings, depositions, answers to interrogatories, admissions, and affidavits 11 that it believes demonstrates the absence of a genuine issue of material fact. Celotex 12 Corp., 477 U.S. at 323. If the moving party meets its initial burden, the opposing party 13 must establish the existence of a genuine dispute as to any material fact. See Matsushita 14 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). There is no issue 15 for trial unless there is sufficient evidence favoring the non-moving party. Anderson, 477 16 U.S. at 249. “If the evidence is merely colorable or is not significantly probative, 17 summary judgment may be granted.” Id. at 249-50. However, the evidence of the non- 18 movant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. 19 at 255. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, 20 after adequate time for discovery and upon motion, against a party who fails to make a 21 showing sufficient to establish the existence of an element essential to that party’s case, 22 and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 23 322. 24 III. Legal Standards5 25 Plaintiff’s SAC alleges claims arising out of the ADA, the Rehabilitation Act, and 26 seeks compensatory damages and injunctive relief.
27 5 Plaintiff did not cite to any applicable legal standard with respect to her Motion, stating only that she is “confident the Court knows its role in deciding MSJ.” (Doc. 119 at 1). 28 Plaintiff, without legal support, also argues the Court should disregard all of the case law cited by Defendants and “treat this case as one of first impression.” (Id. at 2). 1 A. ADA & Rehabilitation Act6 2 The ADA was enacted “to provide a clear and comprehensive national mandate 3 for the elimination of discrimination against individuals with disabilities” and “to provide 4 clear, strong, consistent, enforceable standards addressing discrimination against 5 individuals with disabilities.” 42 U.S.C. § 12101(b). Title II of the ADA provides that 6 “no qualified individual with a disability shall, by reason of such disability, be excluded 7 from participation in or be denied the benefits of the services, programs, or activities of a 8 public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 9 To establish a violation of Title II of the ADA, a plaintiff bears the burden of proving 10 that: “(1) [s]he is a qualified individual with a disability; (2) [s]he was either excluded 11 from participation in or denied the benefits of a public entity’s services, programs, or 12 activities, or was otherwise discriminated against by the public entity; and (3) such 13 exclusion, denial of benefits, or discrimination was by reason of h[er] disability.” 14 Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). 15 The implementing regulations for Title II provide that a public entity must “take 16 appropriate steps to ensure that communications” with persons with disabilities “are as 17 effective as communications with others.” 28 C.F.R. § 35.160(a). The regulations 18 require public entities to “furnish appropriate auxiliary aids and services where necessary 19 to afford an individual with a disability an equal opportunity to participate in, and enjoy 20 the benefits of, a service program, or activity conducted by a public entity.” 28 C.F.R. 21 § 35.160(b)(1). The regulations provide that the “type of auxiliary aid or service 22 necessary to ensure effective communication will vary in accordance with the method of 23 communication used by the individual,” and that “a public entity shall give primary 24 consideration to the requests of individuals with disabilities.” Id. § 35.160(b). The 25 following are listed as options of acceptable auxiliary aids for individuals with visual 26 impairments: “Qualified readers; taped texts; audio recordings; Brailled materials and
27 6 The ADA and Section 504 of the Rehabilitation Act are governed by the same legal standards. See Zulke v. Regents of the Univ. of California, 166 F.3d 1041, 1045 n.11 (9th 28 Cir. 1999) (describing the ADA and Rehabilitation Act as creating the same rights and obligations and that cases interpreting either are applicable and interchangeable). 1 displays; screen reader software; magnification software; optical readers; secondary 2 auditory programs (SAP); large print materials; accessible electronic and information 3 technology; or other effective methods.” 28 C.F.R. § 35.104(2). 4 The plaintiff bears the burden of establishing an ADA violation, so “she must 5 establish the existence of specific reasonable accommodations that [the defendant] failed 6 to provide,” as well as how the accommodations offered by the defendant were not 7 reasonable. Memmer v. Marin Cty. Courts, 169 F.3d 630, 633-634 (9th Cir. 1999). But 8 courts do not interpret the ADA as requiring a perfect accommodation. See e.g., Updike 9 v. Multnomah County, 870 F.3d 939, 951-52 (9th Cir. 2017) (finding no ADA violation 10 where State failed to timely provide an ADA accommodation due to “bureaucratic 11 slippage,” even though such error caused plaintiff to spend an extra night in jail); 12 Tennessee v. Lane, 541 U.S. 509, 511 (2004) (“Title II does not require States to employ 13 any and all means [in devising an accommodation]. It requires only reasonable 14 modifications that would not fundamentally alter the nature of the service provided.”); 15 Loye v. Cty. of Dakota, 625 F.3d 494, 499 (8th Cir. 2010) (affirming finding that plaintiff 16 received effective accommodation under the ADA “even if at times delayed”). Where a 17 plaintiff fails to establish that a provided accommodation is not reasonable, a court may 18 properly grant summary judgment in favor of defendants. Id. 19 B. Compensatory Damages under the ADA & Rehabilitation Act 20 “Compensatory damages are not available under Title II or § 504 absent a showing 21 of discriminatory intent.” Ferguson v. City of Phoenix, 157 F.3d 668, 674 22 (9th Cir. 1998), as amended (Oct. 8, 1998). To show discriminatory intent, a plaintiff 23 must establish that a defendant acted with “deliberate indifference,” which requires “both 24 knowledge that a harm to a federally protected right is substantially likely, and a failure 25 to act upon that . . . likelihood.” Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th 26 Cir. 2001). “When the plaintiff has alerted the public entity to [her] need for 27 accommodation (or where the need for accommodation is obvious, or required by statute 28 or regulation), the public entity is on notice that an accommodation is required, and the 1 plaintiff has satisfied the first element of the deliberate indifference test.” Id. To meet 2 the second prong, the entity’s failure to act “must be a result of conduct that is more than 3 negligent, and involves an element of deliberateness.” Id. 4 C. Injunctive Relief 5 A permanent injunction is “an extraordinary remedy never awarded as of right.” 6 Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking 7 a permanent injunction must show “(1) that [she] has suffered an irreparable injury; (2) 8 that remedies available at law, such as monetary damages, are inadequate to compensate 9 for that injury; (3) that, considering the balance of hardships between the plaintiff and 10 defendant, a remedy in equity is warranted; and (4) that the public interest would not be 11 disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 12 391 (2006). Moreover, a plaintiff must prevail on the merits of her claim in order to 13 receive injunctive relief requested. See Ctr. for Biological Diversity v. Mattis, 868 F.3d 14 803, 827 (9th Cir. 2017) (courts consider elements necessary to obtain injunctive relief 15 only after plaintiff prevails on the merits of her case). 16 IV. Analysis 17 Both parties seek summary judgment as to all of Plaintiff’s claims. (Docs. 107 18 and 111). Plaintiff asserts claims under Title II of the ADA and Section 504 of the 19 Rehabilitation Act. Under both of these provisions, Plaintiff must show that she was 20 excluded from participating in or denied the benefits of Defendants’ services or otherwise 21 discriminated against because of her disability. See Weinreich, 114 F.3d at 978. Neither 22 party disputes that Defendants are public entities within the meaning of Title II. 23 Likewise, Defendants do not contest that Plaintiff, who is blind, has a disability pursuant 24 to the statute. The parties also agree that Defendants were obligated to provide 25 reasonable accommodations to Plaintiff. Rather, Plaintiff’s case centers on her 26 arguments that she requested additional accommodations from Defendants that were not 27 provided until years after she requested them. (Doc. 107). Because Plaintiff’s ADA and 28 Rehabilitation Act claims arise from the same set of facts, the Court will address them 1 together. See Updike, 870 F.3d at 951. 2 With her Motion for Summary Judgment, Plaintiff filed a Separate Statement of 3 Facts. (Doc. 108). As an initial matter, a number of the fact statements made therein do 4 not cite to admissible evidence in the record. For instance, four fact statements cite to 5 allegations in her unverified SAC, one cites to unverified allegations in her Motion for 6 Preliminary Injunction, and ten statements contain no citations at all. (Id.)7 The same is 7 true with the entirety of Plaintiff’s Reply in support of her Motion and her Controverting 8 Statements of Fact, which contain no citations to the record, but rather a number of 9 statements that are inconsistent with the record and are self-serving. 10 The Court cannot rely on unverified statements of fact. See Fed. R. Civ. P. 11 56(c)(4)(“An affidavit or declaration used to support or oppose a motion must be made 12 on personal knowledge, [and] set out facts that would be admissible in evidence. . .”); see 13 also Borbon v. City of Tucson, 556 P.2d 1153, 1154 (1976) (“court may not take 14 cognizance of positions regarding the facts based upon exhibits that are merely parts of 15 the briefs and have not been otherwise verified or supported.”). Moreover, a “genuine” 16 issue of “material” fact cannot be created by a party simply making assertions in its legal 17 memoranda. S. A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines) v. Walter 18 Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Indeed, a “conclusory, self- 19 serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to 20 create a genuine issue of material fact.” Nilsson v. City of Mesa, 503 F.3d 947, 952 (9th 21 Cir. 2007). Declarations and other evidence that would not be admissible may be 22 stricken. FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991). 23 Plaintiff tries to convince the Court that there are genuine disputes of material fact 24 by relying on conclusory allegations, unsupported statements, and speculation. While she 25 disputes almost all of Defendants’ evidence and facts, she does not cite to admissible 26 evidence to contradict those facts. Plaintiff’s unsupported statements are self-serving and 27 7 For instance, Plaintiff states that when Ms. Quayle began reading notices to her, 28 “Plaintiff explained that would not be sufficient.” (Doc. 108 at 3). Plaintiff does not cite to any evidence to establish this alleged statement of fact. 1 are not looked upon favorably.8 Moreover, they are in direct conflict with her sworn 2 deposition testimony. The Court cannot consider these statements. Because Plaintiff has 3 not provided admissible evidence to contradict Defendants’ evidence, affidavits, and 4 declarations, Defendants’ statements of fact are deemed unopposed.9 5 A. ADA & Rehabilitation Act Claims 6 Plaintiff bears the burden of establishing an ADA violation, so “she must establish 7 the existence of specific reasonable accommodations that [the defendant] failed to 8 provide,” as well as how the accommodations offered by the defendant were not 9 reasonable. Memmer, 169 F.3d at 633-34. Plaintiff cannot do so here. While the parties 10 clearly disagree on many facts, none preclude the entry of summary judgment. 11 1. Plaintiff’s 2014 Accommodation Request 12 Plaintiff first argues that Defendants violated the ADA by providing a qualified 13 reader and not accepting her preferred accommodation. (Doc. 21). Plaintiff maintains 14 that she has always requested all correspondence be sent to her in an electronic format 15 that is compatible with her screen reading software and that she has always refused the 16 qualified reader as an accommodation. (Id.) She argues that she first made her request to 17 DES employee Ms. Quayle in August of 2014. (Doc. 108 at ¶8). Plaintiff argues that 18 Ms. Quayle failed to document the request and that DES did not provide the requested 19 accommodation. (Id.) In support of her allegations, Plaintiff provides DES’s internal 20 procedures for handling ADA accommodations requests. (Doc. 108 at 37). Therein, 21 Plaintiff has written her own commentary after the statement that a DES employee shall 22 have the customer sign the “J-930-A” form for requesting an accommodation, writing 23 “she never did” in the margins. (Id.) This is not relevant evidence supporting Plaintiff’s 24 assertions. 25 8 At a previous hearing, and in previous Orders, the Court informed Plaintiff that even 26 though she chose to represent herself in this matter she would be held to the same standard as any attorney appearing before the Court and would be required to follow all 27 Federal and Local Rules. (Doc. 85 at 1-2).
28 9 Plaintiff does not argue that she did not have an adequate amount of time to conduct discovery. 1 The evidence establishes that Plaintiff requested “verbal and/or/audible 2 communication with any future correspondence” as an accommodation for her visual 3 impairment in 2014. (Doc. 108 at 45). Within two weeks of receiving Plaintiff’s request, 4 Defendants provided Plaintiff with a qualified reader,10 DES employee, Ms. Quayle. 5 While Plaintiff disputes that Ms. Quayle was “qualified” to be a reader, alleging that 6 Quayle had “no ADA training,” Plaintiff cites to no evidence in the record for this 7 assertion. (Doc. 121 at 2). Plaintiff also disagrees that she accepted the accommodation 8 of a qualified reader, stating in her Statements of Fact that she “did not hang up on 9 [Quayle] out of courtesy,” but that she “made it clear she was not accepting it as an 10 accommodation.” (Id.) There is no evidence in the record, other than Plaintiff’s own 11 unverified statements, that she did not accept the qualified reader accommodation prior to 12 her 2017 Notice of Claim. To the contrary, the evidence of record establishes that 13 Plaintiff requested this accommodation as testified to in her May 2019 deposition: 14 Question: So we have talked about the conversion accommodation, 15 which is so that your phone can read documents 16 electronically. Is that the accommodation you were asking for way back in 2014 when you asked, when you put in your 17 letter to Clarence Cater, “verbal, slash…audible?” 18 Plaintiff: It’s not a, it’s not a specific accommodation, because there 19 are several accommodations I would have accepted. 20 Question: Did you have a discussion with anybody about the 21 accommodations that you would have accepted? 22 Plaintiff: No one has asked…I mean, I have said electronic, I’m trying 23 to think if Sue and I talked about that. It’s possible that we 24 had a discussion about other things that DES could do to satisfy the accommodations, but I do not remember for sure. 25
27 10 The ADA establishes that a “qualified reader” is a “person who is able to read 28 effectively, accurately, and impartially using any necessary specialized vocabulary,” and is an acceptable auxiliary aid for the visually impaired. 28 C.F.R. § 35.104. 1 Question: Tell me what accommodation were you looking for when you said you wanted a verbal and/or/audible communion with any 2 further correspondence from DES. 3 Plaintiff: Verbal meaning spoken language, audible, that you can hear. 4
5 (Doc. 113-1 at 13-14; Doc. 123 at 3). 6 DES argues that it has worked to ensure that it was providing Plaintiff reasonable 7 accommodations from the time that she made the request to the agency in 2014. The 8 evidence of record supports this. Moreover, while Plaintiff now argues that “the reading 9 of a document over the phone is not an acceptable ADA accommodation,” the use of a 10 qualified reader is specifically contemplated by the statute as an appropriate 11 accommodation.11 (Doc. 107 at 8). In fact, Plaintiff acknowledges that she requested this 12 accommodation. In responding to Defendants’ statement that Plaintiff requested an 13 accommodation by “text, phone, or email,” Plaintiff states that she “does not deny this.” 14 (Doc. 119 at 2) (emphasis added). Plaintiff’s May 2016 letter which confirmed that she 15 still required “audio contact by phone, text, or email” supports that Plaintiff considered 16 “audio contact by phone” to be a reasonable accommodation. (Doc. 112 at 4; Ex. F) 17 (emphasis added). As late as the filing of her SAC in June of 2018, Plaintiff “restated her 18 request for correspondence in an audible form.” (Doc. 21 at 5) (emphasis added). 19 Plaintiff requested this accommodation numerous times, and there is no admissible 20 evidence in the record to establish that Plaintiff objected to the qualified reader, prior to 21 2017. 22 Moreover, by all accounts, including Plaintiff’s, Ms. Quayle provided countless 23 hours of support to Plaintiff as her qualified reader, and Plaintiff was very satisfied with 24 the accommodations provided by DES through Ms. Quayle. (Doc. 113-1 at 26). There is
25 11 In her Motion for Summary Judgment, Plaintiff brings up, apparently for the first time, that she would never have accepted a qualified reader as an accommodation because she 26 has a second disability that she rarely discloses, called auditory distortion. (Doc. 107 at 9). With regard to that disability, Plaintiff states that “repetition, speech speed and 27 context are the only accommodations that help in communication.” (Id.) This disability is not alleged in Plaintiff’s SAC, nor is there any evidence in the record that Plaintiff 28 requested an accommodation of Defendants for this disability or that Defendants were aware of it. 1 no evidence in the record that Defendants were not providing a reasonable 2 accommodation between 2014-17 when they provided Plaintiff with a qualified reader, an 3 accommodation that was specifically requested by Plaintiff numerous times and is 4 contemplated by the statute. See 28 C.F.R. § 35.104(2). Nor has Plaintiff established, 5 prior to her 2017 Notice, that she requested any accommodation other than a qualified 6 reader. Therefore, Plaintiff has not met her burden of establishing a violation of the ADA 7 or Rehabilitation Act for the period between her 2014 accommodation request and her 8 2017 Notice of Claim. 9 2. 2017 Notice of Claim 10 As to the accommodation request contained in her 2017 Notice, Plaintiff does not 11 dispute that DES is now converting correspondence into electronically readable 12 documents. She admits that this is her preferred accommodation. (Doc. 107 at 1; Doc. 13 121 at 1). However, Plaintiff essentially alleges that Defendants acted unreasonably due 14 to the amount of time it took for her new requests to be put into place. 15 Within a few weeks after Plaintiff filed her Notice of Claim, DES employee 16 Monica Sheble contacted Plaintiff to determine precisely the accommodation she was 17 requesting. (Doc. 112 at 5). It is undisputed that after DES had clarified Plaintiff’s 18 request, and after that request had been approved by the Deputy Director of DES 19 Operations, Ms. Quayle was trained on the conversion of documents in September of 20 2017. (Doc. 112-1 at 53). Nina Ferrer, Deputy DES Human Resources Administrator, 21 emailed Ms. Quayle following up on the training and sent written instructions on 22 converting documents for Plaintiff in September of 2017. (Doc. 112-1 at 44). 23 Subsequent to the training, a number of months passed before a notice originated for 24 Plaintiff; therefore, initially, there were no notices for Ms. Quayle to convert. (Id.) 25 When the next notice did arrive months later, Ms. Quayle was unable to convert the 26 document. Therefore, she called Plaintiff and read the document to her as she had done 27 for the past three years, remaining available to help Plaintiff in any way. (Id.) Ms. 28 Quayle did not tell her supervisors or ask anyone else for assistance initially. (Id.) When 1 DES discovered that Quayle had technological issues with the conversion process, 2 Quayle received additional training and thereafter began sending all of Plaintiff’s 3 correspondence over email in June of 2018. (Id.) 4 Defendants acknowledge that there was a lapse in Plaintiff receiving electronically 5 converted documents after her 2017 request, which resulted in a few letters being read to 6 Plaintiff by a qualified reader rather than being converted. However, there is no evidence 7 in the record that Plaintiff did not receive this correspondence. While Plaintiff did not 8 receive her preferred accommodation for a few months, there is no requirement that a 9 defendant provide a plaintiff with her preferred accommodations at all times. See 10 Memmer, 169 F.3d at 633-34. Rather, Plaintiff has the burden to “establish the existence 11 of specific reasonable accommodations that [the defendant] failed to provide,” as well as 12 how the accommodations offered by the defendant were not reasonable. Id. Plaintiff has 13 not done so here. 14 As to the current accommodations she is receiving, Plaintiff does not dispute that 15 Defendants have assigned a specific Special Assistance Worker to her case to convert and 16 send all of her notices, and to be available to assist Plaintiff with any issues related to her 17 accounts. Moreover, while Plaintiff generally objects to Defendants’ arguments that they 18 are currently providing her with her preferred accommodation, these arguments are 19 contrary to the evidence of record. While not contesting that Defendants have converted 20 her correspondence to an accessible format per her wishes since 2018, Plaintiff disputes 21 that this is her preferred accommodation because “it was not the only option presented by 22 Plaintiff as a reasonable accommodation.” (Doc. 121 at 4). These arguments are 23 unavailing. Simply put, the record establishes that Plaintiff is receiving her preferred 24 accommodation. The fact that there may have been other accommodations contemplated 25 by Plaintiff does not negate this. 26 The Court agrees with Plaintiff that it cannot be said that Defendants provided a 27 perfect accommodation at all relevant times. And while Defendants acknowledge that 28 there were some mishaps and the accommodations provided were not always “perfect,” 1 the law does not require a perfect accommodation, only a reasonable one. See Updike, 2 870 F.3d at 951-52. As discussed above, Plaintiff has not provided evidence to dispute 3 that the use of a qualified reader after her 2017 Notice of Claim was reasonable. 4 Therefore, the Court finds that Defendants took appropriate steps in providing a 5 reasonable accommodation when they provided a qualified reader after Plaintiff’s 2017 6 Notice of Claim, until the conversion accommodation was in place. See Memmer, 169 7 F.3d at 633-34. The evidence of record establishes that Defendants have provided, and 8 continue to provide, a reasonable accommodation to Plaintiff. Plaintiff has not produced 9 admissible evidence to establish a dispute of material facts and therefore, there are no 10 triable issues. See Anderson, 477 U.S. at 249. Finding no material facts in dispute that 11 would prevent the entry of judgment in Defendants’ favor as to the ADA and 12 Rehabilitation Act claims, Defendants’ Motion will be granted. Because of the Court’s 13 finding that Defendants were providing a reasonable accommodation, Plaintiff cannot 14 establish that Defendants were deliberately indifferent to her requests, and therefore, her 15 request for compensatory damages also fails. See Duvall, 260 F.3d at 1139. 16 B. Injunctive Relief 17 Plaintiff also seeks a permanent injunction and asks the Court to “order all 18 communications from the Defendant sent in hard copy format be sent as a searchable 19 PDF document or word document via email.”12 (Doc. 107 at 1). Because the Court finds 20 herein that Plaintiff did not succeed on the merits of her case, her request for injunctive 21 relief fails. See Center for Biological Diversity v. Mattis, 868 F.3d 803, 827 (9th Cir. 22 2017). 23 Even had Plaintiff succeeded on her claims, she offers no evidence of a “real or 24 immediate threat” that she would be “wronged again” by Defendants that would allow 25 the Court to enjoin future behavior. Indeed, Plaintiff does not even argue the first three
26 12 In addition to her requests for injunctive relief against DES, Plaintiff also requests the Court to enter a permanent injunction against Arizona Attorney General (“AG”) Mark 27 Brnovich. However, Plaintiff did not name the AG as a Defendant in this matter and she requests this relief for the first time in her Motion for Summary Judgment. (Doc. 107). 28 This relief is not requested in the SAC, nor is the AG a party to this lawsuit and the Court will not address this request. 1 elements—the presence of an irreparable injury, that monetary damages are inadequate to 2 compensate her injury, and that a remedy in equity is warranted. See eBay Inc. v. 3 MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Plaintiff admits that she is now 4 receiving an accommodation that she requested. The evidence of record indicates that the 5 alleged wrongful conduct will likely not recur, given that Defendants have a system in 6 place for providing Plaintiff her preferred accommodations. (Doc. 112 at 1). Plaintiff 7 has not met her burden of showing that Defendants’ alleged wrongful behavior will likely 8 recur, nor has she succeeded on her claims; therefore, Plaintiff is not entitled to injunctive 9 relief and the Court will grant Defendants’ Motion for Summary Judgment. 10 V. Conclusion 11 While the Court is sympathetic to Plaintiff’s challenges, she has simply not met 12 her burden of establishing material facts, supported by admissible evidence, that would 13 prevent the entry of summary judgment for Defendants. While the Court recognizes that 14 this result will not be desirable to Plaintiff, it is apparent that DES has taken serious steps 15 to modernize its process for visually impaired individuals as a result of Plaintiff’s 16 litigation. DES provides evidence that it has created a new team of employees—Special 17 Assistance Workers—devoted to ensuring that visually impaired individuals enrolled in 18 DES programs receive one-on-one support to obtain their preferred accommodation 19 whenever possible. (Doc. 112 at 1). Defendants provide that with these new safeguards 20 in place, its standard work procedures are continually being improved as new issues arise 21 and are identified by its members. (Doc. 112 at 3). Due to Plaintiff’s efforts, countless 22 other visually impaired Arizonans will benefit. 23 Accordingly, 24 IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment 25 (Doc. 111) is granted. 26 IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment 27 (Doc. 107) is denied as moot. The Clerk of Court shall kindly enter judgment in favor of 28 || Defendants and terminate this matter. 2 Dated this 28th day of February, 2020. 3 4 ( . Do ee 5 norable'Diang/. Humetewa 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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