Sw. Fair Hous. Council v. WG Campana del Rio SH LLC

Southwest Fair Housing Council, Plaintiff, v. WG Campana del Rio SH LLC, Defendant.

No. CV-19-00179-TUC-RM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

February 1, 2021

ORDER

Plaintiff Southwest Fair Housing Council ("Southwest" or "Plaintiff" ) brought this action pursuant to the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act ("Section 504" or "the Rehabilitation Act"), the Affordable Care Act ("ACA"), the Fair Housing Act ("FHA") and the Arizona Fair Housing Act ("AZFHA"). Plaintiff filed a Motion for Summary Judgment (Doc. 47), to which Defendant responded in opposition (Doc. 50). Defendant WG Campana del Rio SH LLC ("WG Campana" or "Defendant") also filed a Motion for Summary Judgment (Doc. 45), to which Plaintiff responded in opposition (Doc. 52). The Motions will be granted in part and denied in part as follows.

I. Summary Judgment Standard

A court must grant summary judgment "if 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and to show (1) that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and (2) that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

At summary judgment, the Court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Pure questions of law, where there is no disputed issue of fact, are appropriate for summary judgment. Schrader v. Idaho Dep't of Health & Welfare, 768 F.2d 1107, 1110 (9th Cir. 1985). "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. "[T]his standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. (internal citation omitted). In its analysis, the Court must accept the nonmovant's evidence and draw all inferences in the nonmovant'sfavor. Id. at 255. The Court need consider only the cited materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

II. Factual Background

Plaintiff Southwest Fair Housing Council brought this action against Defendant WG Campana seeking remedies for unlawful discrimination based on disability. (Doc. 47 at 1.) Plaintiff is a non-profit organization based in Tucson, Arizona that seeks to ensure that all people, including deaf individuals, have equal access to housing in Arizona. (Id.) Plaintiff employed testers to investigate Defendant's willingness to provide auxiliary aids and services at its facilities, including American Sign Language ("ASL") interpreters, as part of its mission to alleviate disability discrimination in housing. (Id.)

Defendant WG Campana is a 254-unit residential apartment complex located in Tucson, Arizona that provides private apartments for active seniors. (Doc. 45 at 2.) Amenities provided to residents include linen service, housekeeping, a common dining area, local transportation, and 24-hour staff. (Id.) As a licensed assisted living community, WG Campana is authorized to provide 84 residents with personal care services, and up to 16 residents with directed care services. (Id.) Residents receiving personal care services may receive assistance with bathing or getting dressed, and escort to and from meals or events. (Id.) WG Campana's directed care services are limited to the memory care services it provides, which include a secure environment, heightened monitoring, and assistance with daily living activities such as bathing and grooming. (Id.) WG Campana does not provide healthcare, medical care, or skilled nursing services. (Id.)

On June 22, 2016, Plaintiff's tester Nermana Pehlic, formerly known as Nermana Hasancevic ("Hasancevic"), visited Defendant's assisted living facility on behalf of her deaf grandmother, who was a fictional character created for testing purposes. (Doc. 45 at 3.) Each contact or communication between Plaintiff's testers and Defendant's employees that is at issue in this lawsuit was either audio or video recorded or memorialized in an email message. (See Doc. 46 at ¶ 47.) The facts and circumstances of Plaintiff's testers' contacts with Defendants' employees are set forth below.

During Hasancevic's June 22, 2016 tour with Defendant's Community Sales Director Clause Ommegard ("Ommegard"), Hasancevic discussed details about her grandmother, including her activity level, her interests, and that she was deaf. (Id. at 3.) During the tour, Hasancevic asked Ommegard "how [activities at the facility] would work if . . . she does, you know, sign language?" (Id.; Doc. 48-10.) Hasancevic asked Ommegard, "does the facility provide a translator?" (Doc. 48-10.) Ommegard responded that Defendant did not have a translator on staff and that he did not know whether the facility had staff that could sign. (Id.) Ommegard stated that other residents "kind of figured out . . . they carried like . . . a little notepad" and were "kind of wanting to figure things out." (Id.) When Hasancevic asked about "stuff like medical," Ommegard responded that she "might have to talk to the doctor" and "might have to check to see what resources" were available on a "state level" or "federal level." (Id.) Ommegard then stated that "the communities typically don't," and "not that I've seen in any of the communities," apparently to say that none of the Atria communities he had worked at provided interpreters for any of their deaf residents. (Id.) Hasancevic then asked if "that would be something that she would have to look into on her own?" and Ommegard replied affirmatively. (Id.)

On December 21, 2016, Plaintiff tester Maggie Johnson ("Johnson") emailed Defendant's employee in an apparent follow up message to the June 22, 2016 visit. (Doc. 48-9.) In that email exchange, Johnson stated that her grandmother "is deaf and uses ASL," that "she doesn't need an interpreter 24 hours or all the time," but would "need help with medical discussions or when she's admitted, group activities, or other vital or important communications." (Id.) In response, Defendant's employee Hope Guevara ("Guevara") wrote, "We have had deaf residents live here before and get along just fine. Many write notes as to what their needs are so we can communicate. . . her deafness should not be an issue as long as she can jot down her needs. We are also checking to see if the home health agency that is onsite, Sunlife, has any caregivers that sign. . . there would be an extra cost for those services." (Id.) Prior to sending this message, Guevara unsuccessfully attempted to contact the testers by phone. (Doc. 51 at ¶ 15.)

After receiving no response, Guevara sent Hasancevic and Johnson a second email message, in which she stated, "We understand she is deaf and communicating is important. We do not have anyone on staff that signs, however, we do have residents in a similar situation [] and we are able to communicate with them well enough. [She] can jot down notes and vice versa. There are also special doorbells that can be installed. . . [We] would love to work with you and your family if we are [a] good choice." (Doc. 48-11.)

III. Discussion

Defendant moves for summary judgment on three grounds. (Doc. 45.) First, Defendant argues that Plaintiff sustained no injury in fact and thus lacks standing to bring its claims. (Id. at 5.) Second, Defendant argues that it receives no federal funding, and thus is exempt from the requirements of the Rehabilitation Act and the ACA. (Id. at 7.) Third, Defendant argues that Plaintiff has provided insufficient evidence of discrimination under the FHA, the ADA, the Rehabilitation Act, and the ACA. (Id. at 8.) In support of its final argument, Plaintiff argues that there is no evidence supporting a finding that (1) Defendant denied Plaintiff an interpreter; (2) an interpreter was necessary in order to facilitate effective communication between Plaintiff and Defendant; (3) Defendant failed to make a proper individualized inquiry into whether specific accommodations were reasonable and necessary; or (4) Defendant denied Plaintiff a reasonable and effective accommodation. (Id. at 12-14.)

Plaintiff separately moves for summary judgment on each of its four claims. (Doc. 47.) Plaintiff argues that the Court should...