Nix v. Advanced Urology Inst. of Ga., P.C., Civil Action No. 1:18-cv-04656-SDG

TRACY NIX, Plaintiff, v. ADVANCED UROLOGY INSTITUTE OF GEORGIA, P.C., Defendant.

Civil Action No. 1:18-cv-04656-SDG

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

December 14, 2020

OPINION AND ORDER

This matter is before the Court on Plaintiff Tracy Nix's motion for partial summary judgment [ECF 56] and Defendant Advanced Urology Institute of Georgia, P.C.'s (Advanced Urology) motion for summary judgment [ECF 77]. For the following reasons, and with the benefit of oral argument, Nix's motion is DENIED and Advanced Urology's motion is GRANTED.

I. BACKGROUND¹

Nix is deaf and primarily communicates using American Sign Language (ASL).² Nix also reads and writes in English.³ Advanced Urology is a medical practice specializing in urological health.⁴ Prior to its involvement with Nix, Advanced Urology had treated deaf patients, but did not have an ongoing agreement with an interpreting agency.⁵

On February 5, 2018, Nix contacted Advanced Urology through a video relay service to make an appointment at its facility in Snellville, Georgia.⁶ Due to the emergency nature of Nix's symptoms, the parties scheduled the appointment for February 7.⁷ Nix did not request an in-person interpreter during this initial call.⁸ The next morning, Nix called back and requested an interpreter.⁹ That request was forwarded to Missy Sherling—Advanced Urology's Vice-President of Clinical Strategy—who, in turn, initiated a call with Steve Karasick and Kelly Brauer, Advanced Urology's then-Chief Executive Officer and Surgery Center Director, respectively.¹⁰ Brauer, Karasick, and Sherling discussed Nix's request, concluded they did not have sufficient time to procure an interpreter through their usual interpreting agency, and decided to look for other ways to fulfill Nix's request.¹¹

While attempting to locate an interpreter, Sherling learned that an Advanced Urology employee, Samantha Fazzolare, had a friend, Dalton Belew, who "could do basic signing."¹² Fazzolare did not inform Sherling of Belew's profession or represent Belew as a trained or professional interpreter.¹³ Fazzolare provided Sherling with Belew's contact information.¹⁴ Sherling did not, however, conduct any investigation into Belew's background or qualifications as an interpreter.¹⁵ Based on Sherling's subjective belief that Belew previously interpreted for another medical practice, Sherling and Karasick made the decision to ask Belew to interpret Nix's appointment.¹⁶ Belew agreed.¹⁷ Contrary to Sherling's beliefs, Belew was not certified in ASL,¹⁸ had never interpreted in a medical setting,¹⁹ and characterized his own skills as "intermediate."²⁰ Belew had instead been previously employed as a video editor, floor manager at a news company, and at a dental office in an administrative position and as a sterilizer.²¹ After securing Belew's agreement, Sherling called Nix and informed her an interpreter had been secured for her appointment.²²

On February 7, Nix and Belew arrived at Advanced Urology for Nix's appointment. The parties dispute many of the specific details of the appointment. However, the evidence is undisputed that Nix and Belew experienced significant difficulties communicating with each other through ASL. Due to Belew's struggles, and his wearing of scrubs bearing Advanced Urology's insignia, Nix became convinced Belew worked as a nurse, not an actual interpreter.²³ At some point, Nix abandoned communication with Belew entirely and began writing notes and using gestures to communicate directly with the medical staff.²⁴ Belew nonetheless remained in the room while Nix partially undressed and underwent two non-invasive ultrasounds.²⁵ At the conclusion of the appointment, Nix and Belew filled out various forms affirming that Belew acted as an interpreter during the entire appointment.²⁶ Advanced Urology ultimately issued Belew a check for $100 for his services.²⁷ After her appointment, Nix and her husband complained to Advanced Urology regarding its decision to use Belew as an interpreter; Advanced Urology apologized and refunded their $40 co-pay for the appointment.²⁸

Nix initiated this action on October 5, 2018.²⁹ On January 3, 2019, Nix filed her Amended Complaint, asserting six claims against Advanced Urology for: violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (Count I); violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq. (Count II); violation of Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116 (Count III); fraud (Count IV); negligence (Count V); and intentional infliction of emotional distress (Count VI).³⁰ On March 18, 2020, Advanced Urology filed its motion for summary judgment on all of Nix's claims.³¹ Nix filed her motion for partial summary judgment on her disability discrimination claims the same day.³² Both parties filed oppositions to the cross motions on April 15, 2020.³³ The parties filed respective replies on April 29.³⁴

II. LEGAL STANDARD

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment has the initial burden of informing the district court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If a movant meets its burden, the non-movant must present evidence showing either (1) a genuine issue of material fact or (2) that the movant is not entitled to judgment as a matter of law. Id. at 324. A fact is considered "material" only if it may "affect the outcome of the suit under the governing law." BBX Cap. v. Fed. Deposit Ins. Corp., 956 F.3d 1304, 1314 (11th Cir. 2020) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is "genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." BBX Cap., 956 F.3d at 1314 (citing Anderson, 477 U.S. at 248) (punctuation omitted).

In opposing a motion for summary judgment, the non-movant "may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Sears v. Roberts, 922 F.3d 1199, 1207 (11th Cir. 2019). If the non-movant relies on evidence that is "merely colorable, or is not significantly probative, summary judgment may be granted." Likes v. DHL Express (USA), Inc., 787 F.3d 1096, 1098 (11th Cir. 2015). But the Court's role is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Sears, 922 F.3d at 1205 (citing Anderson, 477 U.S. at 249). The Court must view the evidence in a "light most favorable to the party opposing summary judgment" and "draw[ ] all justifiable inferences in the opposing party's favor." Rogers v. Mentor Corp., 682 F. App'x 701, 708 (11th Cir. 2017). See also Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.") (quoting Anderson, 477 U.S. at 255).

Both Nix and Advanced Urology filed motions for summary judgment on certain claims. This posture does not change the Court's analysis; the same standard is applied to each party's separate motion. Ga. State Conference of NAACP v. Fayette Cty. Bd. of Comm'rs, 775 F.3d 1336, 1345 (11th Cir. 2015) ("In practice, cross motions for summary judgment may be probative of the nonexistence of a factual dispute, but this procedural posture does not automatically empower the court to dispense with the determination whether questions of material fact exist.").

III. DISCUSSION

a. Nix's Federal Law Claims

Nix alleges Advanced Urology discriminated against her on the basis of her hearing disability by failing to provide a qualified interpreter in violation of three federal statutes: the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), and the Patient Protection and Affordable Care Act (ACA). In the Amended Complaint, Nix seeks injunctive relief under all three statutes and monetary damages under the RA and ACA.

Title III of the ADA applies to privately operated public accommodations and prohibits discrimination "on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations." 42 U.S.C. § 12182(a). Section 504 of the RA similarly provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794. Finally, Section 1557 of the ACA provides that "an individual shall not . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance." 42 U.S.C. § 18116. Although each statute serves an independent purpose, all of Nix's claims under them are substantively governed by the same standards. E.g., Bustos v. Dignity Health, No. CV-17-02882-PHX-DGC, 2019 WL 3532158, at *1 (D. Ariz. Aug. 2, 2019) ("[T]he elements of a discrimination claim under [the ACA, ADA, and RA] are similar."); Cummings v. Total Eye Care, No. 4:18-cv-546-A, 2019 WL 95606, at *2 (N.D. Tex. Jan. 3, 2019) ("[T]he same analysis applies to each of [plaintiff's] federal law claims" under the ACA, ADA, and RA). See also Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 830-31 (11th Cir. 2017) (hereafter, Silva I) ("ADA and RA claims are governed by the same substantive standard of liability."); Bax v....