Krpan v. Registry of Interpreters for the Deaf, Inc.

167 F.Supp.3d 774

John Krpan, Plaintiff,

v.Registry of Interpreters for the Deaf, Inc., Defendant.

No. 1:15–cv–458 (LMB/MSN)

United States District Court, E.D. Virginia, Alexandria Division.

Signed March 8, 2016

John C. Cook, Lee Brinson Warren, Broderick Coleman Dunn, Cook Craig & Francuzenko PLLC, Fairfax, VA, for Plaintiff.

Sarah Aiman Belger, Nicholas Delvecchio Sanfilippo, Todd Stephen Rouse, Mcguirewoods LLP, Mclean, VA for Defendant.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Plaintiff John Krpan (“plaintiff” or “Krpan”) instituted this civil action against defendant Registry of Interpreters for the Deaf, Inc. (“defendant” or “RID”), alleging that certain certifications RID provides and the testing processes for those certifications violate Title III of the Americans with Disabilities Act (“ADA”). In Count 1 of the two-count Complaint, plaintiff alleges that the National Interpreter Certification (“NIC”) exam violates Title III of the ADA by measuring the sensory skills of NIC candidates rather than their “aptitude or achievement level” and by acting “as a certificate to prospective employers” that an NIC-certified individual is not disabled. Compl. [Dkt. No. 1] ¶¶ 24–25, Apr. 8, 2015. In Count II, he alleges that the Certified Deaf Interpreter (“CDI”) credential violates Title III of the ADA by measuring an applicant's sensory skills rather than aptitude and by acting “as a certificate to prospective employers that the [CDI credential] holder is disabled, which the ADA would otherwise forbid the prospective employer from asking during the interview process.” Id. ¶¶ 27–28.

In addition to seeking attorneys' fees and costs, plaintiff seeks a permanent injunction that would bar RID from inquiring into an applicant's disability status, from requiring that an applicant have a certain disability status, and from stating that holders of a credential have or do not have a disability. Id. at 4. Krpan also seeks an order requiring RID to permit him to apply for the NIC certification and to sit for the NIC exam “with all accommodations otherwise required by 28 C.F.R. § 36.309, including but not limited to an interpreter to translate Krpan's ASL into spoken English.” Id. at 4–5. RID responds that plaintiff's claims are time-barred and that plaintiff lacks standing to pursue his claim regarding the NIC exam. RID also contends that neither the NIC nor CDI credentials or exams violate the ADA and that the plaintiff s requested changes or accommodations would place an undue burden on RID.

Before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, defendant's motion will be granted and plaintiff's motion will be denied.

I. BACKGROUND

Plaintiff is a legally deaf individual who is categorized as “profoundly deaf.” Dep. of John Krpan [Dkl. No. 48–1] (“Pl.'s Dep.”) 37:3–4. Although he can hear some sounds, plaintiff is unable to “interpret what those sounds mean” and “cannot hear verbal communication at all.” Pl.'s Dep. 37:5–10. There is also no indication in the record that plaintiff can or does communicate verbally. Plaintiff characterizes himself as “a deaf person fluent in American Sign Language (“ASL”) and other forms of nonverbal communication” who “makes his living as an interpreter for people who are deaf and hard of hearing.” Mem. of P & A in Supp. of Pl.'s Mot. for Summ. J. [Dkt. No. 45] (“Pl.'s Br.”) at 1, Oct. 9, 2015.

Defendant is a non-profit 26 U.S.C. § 501(c)(3) organization that provides credentialing services for different types of interpreters for the deaf and hard of hearing. Def. Registry of Interpreters for the Deaf, Inc.'s Mem. in Supp. of its Mot. for Summ. J. [Dkt. No. 48] (“Def.'s Br.”) at 4, Oct. 9, 2015; Compl. ¶¶ 9–10. RID's National Interpreter Certification (“NIC”) and Certified Deaf Interpreter (“CDI”) credential are the only credentials at issue in this action.¹ See Compl. ¶¶ 11, 20; Def.'s Answer [Dkt. No. 5] (“Answer”) ¶¶ 11, 20, May 8, 2015. RID's Department of Certification establishes the standards for the examinations interpreters must take to obtain NIC and CDI certifications and reviews any requests for accommodations by testtakers. Def.'s Br. at 5. “[A]ll of [RID's] tests are driven by market demands” and are meant “to capture the qualities and skill sets that a practitioner needs to be able to fulfill” in various situations. Dep. of Registry of Interpreters for the Deaf, Inc., by and through its Corp. Representative Anna Witter–Merithew [Dkt. No. 48–2] (“Witter–Merithew Dep.”) 57:16–21.

RID provides a candidate handbook for each certification. The NIC Candidate Handbook states that the application process is “open to interpreting professionals who: are at least 18 years of age; are hearing; have the [requisite] knowledge and skills ...; meet RID's current educational requirement; and agree to abide by the NAD–RID Code of Professional Conduct.” NIC Candidate Handbook 2015 [Dkt. No. 48–3] (“NIC Handbook ”) at 8. According to RID, the term “hearing” as used in the NIC Handbook refers to “someone who moves through the world receiving information directly auditorily” and who is “bilingual” in ASL and spoken English. Witter–Merithew Dep. 19:6–12. Although the NIC Handbook states that the process is “open” to professionals who “are hearing,” NIC Handbook at 8, neither the handbook nor any other evidence in the record shows that candidates are required to provide proof of their hearing ability before or during the application process. Moreover, the parties agree that the NIC exams do not require that candidates undergo an “audiogram ” to measure their hearing ability. See Def.'s Br. at 9; Pl.'s Opp'n to Def.'s Mot. for Summ. J. [Dkt. No. 54] (“Pl.'s Opp'n”) at 2, Oct. 23, 2015.

Instead, the NIC application process includes a written “NIC Knowledge” test and an oral “NIC Interview and Performance” exam (“the exam”), the latter of which is at issue in this litigation. See NIC Handbook at 9; Compl. ¶ 14. The exam is “designed to test the specific market requirements for an individual who is bilingual and can simultaneously render from spoken English into ASL and from ASL into intelligible spoken English.” Witter–Merithew Dep. 27:14–18. The hour-long exam uses “video-based vignettes” during which “the candidate watches the exam problems on a video screen and the candidate's signed and spoken responses are recorded.” NIC Handbook at 21. The vignettes present both ethical dilemmas and real-world situations and require that the candidate provide simultaneous interpretation both from ASL to spoken English and from spoken English to ASL without pausing or changing the timing of the test once it begins. Id. at 22.

Candidates must be able to “directly hear the information and simultaneously, instantaneously render it into sign language” and also to “watch sign language and simultaneously, immediately render it into clear intelligible spoken English.” Witter–Merithew Dep. 21:21–22:3. As a result, test-takers are evaluated on their “spoken English articulation competencies, intonation, use of inflection, reciprocity, pacing, [and] stress.” Witter–Merithew Dep. 43:14–16. Due to these requirements, RID has determined that an individual who is profoundly deaf could not pass the exam as structured and has further determined that it could not provide an accommodation in the form of an interpreter to a profoundly deaf individual without fundamentally altering the test and placing an undue burden on RID. See Def.'s Br. at 6–7.

In contrast to the NIC certification, the CDI credential is limited to interpreting professionals who “are deaf or hard-of-hearing.” CDI Candidate Handbook 2013 [Dkt. No. 48–6] (“CDI Handbook ”) at 8. Because the exam is “designed to evaluate deaf interpreters,” CDI candidates must provide “[a]n official letter from a physician or audiologist providing verification of hearing loss” before they can apply. Id. at 12. The Performance Exam does not measure spoken English competence, Witter–Merithew Dep. 74:15–16; instead, it “measures someone's ability to work ... monolingually” by “go[ing] from print text to [ASL], [and] from sign language to sign language.” Witter–Merithew Dep. 19:19–21, 71:17–18. Specifically, the test requires candidates to “interpret a written text to a Deaf consumer;” “provide ASL interpreting to the Deaf consumer while working with a hearing interpreter as a team;” “provide simultaneous interpretation to consumers who are Deaf–Blind or Deaf-close-vision for a Deaf presenter;” and “provide mirror interpreting for audience members' comments after a forum.” CDI Handbook at 24.

RID explains that the CDI Performance Exam and credential are intended “to capture the life experience of individuals who move through society as visual, spatial, gestural communicators, and who could bring to the interpreting task a unique and more sophisticated level of competence than is available with the NIC interpreters,” because hearing interpreters do not “share the common life experience” of a deaf individual. Witter–Merithew Dep. 58:1–7. That common life experience, according to RID, allows deaf interpreters “to deal with deaf individuals who may not be sufficiently competent in [ASL]” or who may “have very idiosyncratic ways of using sign language that surpass the experience of most hearing interpreters,” because a deaf interpreter is better equipped to recognize non-ASL signs and “to creatively use gestures and iconic behaviors that convey complex information,”² Witter–Merithew Dep. 59:17–60:8.

In the words of RID's expert Dr. Patrick Boudreault (“Boudreault”),³ professionals who obtain CDI credentials “have native or near-native proficiency in ASL, and share the Deaf experience with semi-lingual deaf consumers or even bilingual deaf consumers; this ‘sameness' is an important factor in establishing rapport and communicating effectively.” Expert Report [Dkt. No. 48–4] (“Boudreault Report”) at 7. By way of contrast, Boudreault states...