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)
)
THE UNITED STATES OF AMERICA, )
)
Plaintiff )
) CV-92-2879 (TFH/AK)
v. )
)
BECKER, CPA REVIEW, LTD., )
)
Defendant )
)
)
__________________________________________________________________
__________________________________________________________________
JAMES P. TURNER
Acting Assistant Attorney
General for Civil Rights
JOHN L. WODATCH
L. IRENE BOWEN
MARC DUBIN
MARY LOU MOBLEY
Attorneys
KATE NICHOLSON
U.S. Department of Justice
Civil Rights Division
Public Access Section
P.O. Box 66738
Washington, D.C. 20035-6738
Tel: (202) 307-0663
Table of Contents
Introduction....................................................1
Analysis........................................................2
Conclusion.....................................................28
1IN THE UNITED STATES DISTRICT COURT
)
)
THE UNITED STATES OF AMERICA, )
) CV-92-2879 (TFH/AK)
Plaintiff )
) Reply to Defendant's
v. ) Opposition to United
) States' Motion for Partial
BECKER, CPA REVIEW, LTD., ) Summary Judgment
)
Defendant )
)
)
Introduction
agree on the facts and law as set out in the papers supporting
facts.3 This case is, therefore, ripe for summary judgment. See
1
Genuine factual disputes exist as to claims made on behalf of
Mr. Summers and others, the appropriate amount of civil penalties,
and damages for Mr. Jex. The United States has not sought summary
judgment on these issues, and will not address Defendant's
arguments concerning these matters as they are beyond the scope of
the United States' Motion for Partial Summary Judgment.
2
The Becker company has utterly failed to address Count II
of the United States' Complaint, in which the government alleged
that Defendant had violated section 309 of the ADA, 42 U.S.C.
§ 12189. See discussion in Corrected Memorandum of Points and
Authorities in Support of United States Motion for Partial
Summary Judgment ("U.S. Corrected Memorandum") at 38-40, and
United States' Opposition to Defendant's Motion for Summary
Judgment ("U.S. Opposition") at 23, which are incorporated herein
by reference.
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
Analysis
to ensure that persons with disabilities have the full and equal
enjoyment of the entities' goods, services, and advantages.4 42
the same results as others." H.R. Rep. No. 485, 101st Cong., 2d
3
Paragraphs 1-112 of the United States "Facts" were
submitted as "Corrected Rule 108(h) Statement," Exhibit B to
Motion of October 12, 1993. Paragraphs 113-246 were submitted as
"Rule 108(h) Statement in Opposition to Defendant's Motion for
Summary Judgment" (filed Oct. 25, 1993).
2
(1) to provide auxiliary aids and services to ensure
effective communication (42 U.S.C. § 12182(b)(2)(A)(iii) and
28 C.F.R. § 36.3035);
obtain goods, services, and advantages across the full range that
is offered to others.
5
The Department's title III regulation and published
interpretation of the regulation are entitled to controlling
weight unless they are plainly erroneous. Stinson v. United
States, 113 S. Ct. 1913, 1919 (1993) (citations omitted). The
United States hereby incorporates by reference its discussion of
judicial deference to agency interpretation in U.S. Opposition at
29-33.
6
Policy modifications are necessary as established through
the discussion of auxiliary aids and services, infra at 3-8, and
opportunities for equal participation, infra at 15-18. The
United States has already shown that the necessary policy
modifications are reasonable, U.S. Corrected Memorandum at 37-38,
U.S. Opposition at 40-41, and hereby incorporates these arguments
by reference.
3
effective communication. First, it relies on a results-oriented
the Becker company draws too closely the connection between its
4
hearing other students' questions would have any effect on his or
does not encompass the notion that persons with disabilities must
Rep. No. 485, 101st Cong., 2nd Sess., pt. 2 at 101 (Committee on
Education and Labor); H.R. Rep. No. 485, 101st Cong. 2nd Sess.,
7
See discussion of Mr. Jex's and former Becker students'
experiences with the 'J-notes' in the U.S. Corrected Memorandum
at 12, 14, 18-20; U.S. Opposition at 9-11; and Facts ¶¶ 57-62,
72, 89-101, 111, 171, 172, 218.
5
this method will provide effective communication to all present
8
The Becker company also concedes that each person with a
hearing impairment faces unique needs and has different
communication concerns that must be taken into account.
Defendant's Opposition at 28. This concession further
demonstrates the futility of making decisions that will affect
future students on the basis of former students' exam results.
Significantly, this concession contrasts sharply with the Becker
company's earlier assertion that, in its professional opinion,
the 'J-note' method would be more effective for all students with
hearing impairments than would be sign language interpreters.
Defendant's Memorandum at 8; Letter of Dec. 17, 1992, from N.
Becker to J. Dunne (Defendant's Exhibit 36).
9
Although the Becker company sets out "apprehension" as a
talisman for effective communication, it never articulates what
level of "apprehension" might be required by section 302.
Instead, Defendant states merely that its communication was
effective because some former Becker students who used the 'J-
note' method passed some or all of the CPA examination, and
argues that, therefore, the 'J-note' method worked for them. See
discussion of the Becker company's application of a results-
oriented test, supra at 4-6.
6
Opposition at 19. This approach fails to account for other
examination.
7
with disabilities, then, should be judged partly by whether a
their peers.
8
a. Section 504 of the Rehabilitation Act.
The Becker company contends that this Court should not heed
10
In fact, Congress explicitly recognized that title III
extends section 504's prohibition of discrimination to private
entities:
9
Grottenthaler, 907 F.2d 286, 291 (2d Cir. 1990) ("regulations,
10
C.F.R. § 39.160(a)(1) (1992) ("The agency shall furnish
11
Analysis at 593; and has expressly incorporated case law under
The Becker company argues that the United States extends the
issued under the titles lies not in this shared mandate, but in
12
that are equally appropriate. 28 C.F.R. § 35.160(b)(2).
(Exhibit 47).
13
H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2 at 107
(1990) (Committee on Education and Labor) ("The Committee expects
that the public accommodation will consult with the individual
with a disability before providing a particular auxiliary aid or
service").
13
communication. Defendant's Opposition at 8, 9 (emphasis in the
at 451 ("The public entity shall honor the choice unless it can
14
to rely exclusively on the determination of appropriateness made
14
See discussion in U.S. Corrected Memorandum at 26; U.S.
Opposition at 27-28.
15
instructors' responses, cannot ask their own questions, cannot be
must take into account the "full and equal enjoyment" standard of
section 302(a). They must also be read in conjunction with the
the Becker course and "full and equal" benefits of the course to
16
and equal participation in the educational process. Cf.,
parent-teacher conferences).
against an individual like Mr. Jex, the Court should apply the
following test: whether the student, in the absence of sign
15
The Becker company has not raised the affirmative
defenses of fundamental alteration or undue burden.
17
persons with hearing impairments to participate in important
Becker course. The Becker company has failed to, and indeed
cannot, show that Mr. Jex is not an individual for whom sign
18
treatment of Mr. Jex.16
aspects of his daily life. Facts ¶¶ 46, 47, 51, 146-63; see also
Grottenthaler, 907 F.2d 286, 291 (1990). The Becker company has
16
There are material issues of fact as to Mr. Summers and
others on whose behalf the United States may seek damages. Facts
¶¶ 230, 231, 239, 240.
19
at 21-22.
Consistent with this need, Mr. Jex found the 'J-note' method
in the Becker course. Facts ¶¶ 59-62, 171, 172, 175, 212, 218.
Garrett, Ms. Eby, Ms. Shera, Ms. Staiman, and Mr. Hammer, each of
method was not working for him, the company was put on notice
when he brought his own sign language interpreter. The fact that
20
the Becker course. Cf. Rothschild v. Grottenthaler, 907 F.2d 286,
291 (2d Cir. 1990) (the fact that deaf parents of a hearing child
neither they nor anyone else has denied the accuracy of his
21
Although the Becker company states generally that classroom
Dittmer, interrupt the taped lecture far more often than does Mr.
[appropriate] for you." Exhibit F17 to Jex Supp. Dec. (Exhibit 36)
Further assuming for the sake of argument that Mr. Jex did
17
This exhibit is one of many transcripts of conversations
between Mr. Jex and Becker company employees. These transcripts
were made concurrently with the actual conversations, through a
TDD (telecommunication device for deaf persons) with print-out
capabilities. They have been authenticated by Mr. Jex in his
Supplemental Declaration of Oct. 21, 1993 (Exhibit 36), in which
the substance of these conversations also appears.
22
trouble with the 'J-note' method, his failure to do so is
told him prior to December 1992 that it would not provide sign
asking.
Facts ¶ 206.
The Becker company has not met its burden under Celotex and
for trial. The Court should declare that the Becker company's
III. The Court should grant the United States' request for
equitable relief.
23
injunctive relief should contain sufficient specificity to give
Defendant violated sections 302 and 309 of title III, and hold
24
A declaratory judgment by the Court can, and should, be
confined to the facts before the Court. The law requires that
and other appropriate auxiliary aids and services will not impact
all entities in the way that it will affect the Becker company
necessary for some students in the Becker course would not mean
IV. The Court should award damages to Mr. Jex and civil
penalties to the United States.
provide him with the full and equal enjoyment of the Becker
title III. Analysis at 626. The record reflects that Mr. Jex
25
damages, Defendant must therefore come forward with specific
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The
Becker company has not met this burden: all of its arguments
recklessly disregard the law." H.R. Rep. No. 485, 101st Cong., 2d
Here, the Becker company cannot assert that its provision of the
26
In its discussion of the type of good faith conduct
cannot subsequently claim that the aid could not have been
complain that it was unaware of Mr. Jex's need for sign language
will "vindicate the public interest." H.R. Rep. 485, 101st Cong.,
of all accountants who pass the CPA examination are Becker course
of the ADA: "to bring persons with disabilities into the economic
Resources).
27
and should hold further evidentiary proceedings to determine the
matters as justice may require." H.R. Rep. No. 485, 101st Cong.,
Conclusion
28
other former Becker students, the appropriate amount of damages
States.
Respectfully submitted,
JOHN L. WODATCH
Chief, Public Access Section
D.C. Bar No. 344523
L. IRENE BOWEN
Deputy Chief, Public Access Section
D.C. Bar No. 925610
___________________________
MARC DUBIN
MARY LOU MOBLEY
Attorneys
KATE NICHOLSON
Public Access Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
Tel: (202) 307-0663
29