Today’s blog entry comes to me courtesy of Richard Hunt, who in his blog will often do many briefs of several cases at once. He focuses on title III and the Fair Housing Act, especially from the defense side. However, he did mention our case of the day in one of his blogs, and I thought I go into more depth on it. So, our case of the day is Martinez v. County of Alameda185189210214211 decided on January 12, 2021 by the Northern District of California and written by Judge Hixson. The case involves a blind individual who asked for help with respect to filling out a fictitious name form because she was blind. When the help was refused, she filed suit. As usual the blog entry is divided into categories, which track how the case was laid out. The categories are: facts; title II overview; facially neutral policies; fundamental alteration/undue burden; deliberate indifference; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

On March 29, 2019, Martinez went to the Alameda County Clerk-Recorder’s Office to file a fictitious business name statement for her new small business. Compl. ¶ 13, ECF No. 1. Prior to her visit, she downloaded the form from the acgov.org website and completed the fillable fields using screen access software. Id. ¶¶ 14-15. Because she is blind, she obtained help at home in manually signing the document’s signature line. Id. ¶ 16.

At the Clerk-Recorder’s office, Martinez spoke with an agent at the counter, who told her the form had checkboxes for “LLC” and for “individual,” and that Martinez had checked “individual” and entered her name in that area but had elsewhere indicated she was seeking a fictitious business name for an LLC. Id. ¶ 17. The employee informed Martinez that she would have to check the box for “LLC,” cross out her own name where she had written it and write in the name of her LLC in the relevant area. Id. Martinez asked the employee to assist and enter the information on the form because she was blind, but the employee said she could not assist because it was a legal document that must be completed by the business owner. Id. ¶¶ 18-19. Martinez explained that she herself was the business owner and that she was asking for assistance because she was unable independently to fill out the paper form. Id. ¶ 20. After the employee still refused to assist her, Martinez asked to speak with a supervisor but was told no supervisor was present and she would have to wait to speak with one. Id. ¶ 22. After waiting 45 minutes, Martinez again asked when she might expect to speak with a supervisor, but the employee told her there was still no supervisor available and that she would no longer discuss Martinez’s need for assistance. Id.

Martinez continued to stand at the counter waiting for a supervisor for approximately 20 more minutes. Id. ¶ 23. Finally, Defendant Maria Laura Briones, a supervisor at the Clerk-Recorder’s office, arrived and told Martinez no one could assist because the office required legal documents such as the fictitious business form to be filled out by the business owner. Id. ¶¶ 7, 23. Martinez again explained that she was the business owner and would be completing the form, but she required assistance because she could not complete the form herself. Id. ¶ 24. After Briones again refused her request, Martinez asked under what legal authority she was refusing to assist. Id. ¶ 25. Briones left to speak with Defendant Eva He, the Assistant Clerk-Recorder, and then returned to say that He confirmed no one from the Clerk-Recorder’s office would assist Martinez in completing her form. Id. ¶¶ 6, 26. When asked if He cited any authority for that decision, Briones said there was no legal authority, that she would no longer speak to Martinez, and then walked away. Id. ¶ 26. Martinez left without filing the form. Id. ¶ 27.

On November 14, 2019, Martinez wrote to Defendant Melissa Wilk, the Alameda County Auditor-Controller/Clerk-Recorder, and Alameda County, through its counsel, requesting a modification to the policy denying assistance to blind persons at the Clerk-Recorder’s office. Id. ¶ 30. Through counsel, Defendants responded that any assistance in filling out forms constituted legal advice and would not be provided. Id. ¶ 31

Martinez filed suit and the County of Alameda put forward a motion to dismiss.

II

Title II Overview

  1. 42 U.S.C. §12132186190211215212 provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of the public entity, or be subjected to discrimination by any such entity.
  2. 28 C.F.R. §35.130187191212216213 provides that public entities have to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability absent a showing of a fundamental alteration in the nature of the service, program, or activity.
  3. To state a claim for discrimination, Martinez has to show: 1) she is a person with a disability; 2) she is otherwise qualified/qualified; 3) she was excluded from participation in, denied the benefits of, or otherwise subjected to discrimination with respect to Alameda County’s services, programs, or activities; and 4) the inclusion, denial of benefits, or discrimination she suffered was by reason of her disability.
  4. No dispute exists as to Martinez being blind and being an otherwise qualified/otherwise qualified individual with a disability. The argument is over whether the discrimination was by reason of her disability. In particular, the County of Alameda claims that their policy is a neutral policy, and therefore no discrimination occurs.

II

Facially Neutral Policies

  1. Facially neutral policies can violate the ADA when those policies unduly burden persons with disabilities even when those policies are consistently enforced.
  2. Martinez pled sufficient facts demonstrating that the County of Alameda’s policy of refusing to assist anyone in completing paperwork disproportionately burdened her as a blind person and denied her meaningful access to Alameda County’s benefits and services.
  3. The exclusion, denial of benefits, or discrimination was by reason of her disability and therefore, constituted a violation of title II of the ADA.
  4. Cases cited by the County of Alameda did not involve a public entity’s failure to effectively communicate information to a person with a disability nor did they involve its policy of refusing auxiliary aids or services necessary for effective communication as alleged here.
  5. Martinez did not allege that the discrimination was because they charged her for filing a fictitious business name, a charge everyone has to pay, rather she alleged that they discriminated against her because of her exclusion from an equal opportunity to participate in, and enjoy the benefits of the County of Alameda’s services, program, and activities.
  6. The County of Alameda simply failed to provide authority or persuasive argument to overcome either: 1) the Ninth Circuit’s own binding precedent regarding facially neutral policies that disproportionately affect individuals with disabilities; or 2) the ADA regulatory requirements to provide auxiliary aids (28 C.F.R. §35.104188192213217214), and services, such as a qualified reader or another effective method, so that the form could be made available to a blind individual.

III

Fundamental Alteration/Undue Burden

  1. Public entities must take appropriate steps to ensure that communications with applicants, participant, and members of the public with disabilities are as effective as communication with others.
  2. Public entities are also required to furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of their services, program, and activities.
  3. Fundamental alteration/undue burthen are affirmative defenses for which the public entity asserting the defense bears the burden of proof.
  4. Determining whether a modification is reasonable or results in a fundamental alteration is an intensively fact-based inquiry.
  5. Case law and the final implementing regulation for title II of the ADA makes clear that whether a request for policy modification auxiliary aid or service results in a fundamental alteration or an undue burden is a fundamentally factual question inappropriate for disposition prior to discovery.
  6. The decision that proposed modification or auxiliary aid or service would result in a fundamental alteration to a public entities program, service, or activity, or results in an undue financial or administrative burden must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity. It also has to be accompanied by a written statement of the reason for reaching that conclusion. 28 C.F.R. §35.164189193214218215.
  7. Even if a fundamental alteration or an undue burden exists, the public entity must still take any other action that would not result in such an alteration and that ensures to the maximum extent possible that individuals with disabilities receive the benefits or services provided by the public entity.
  8. So even if an individual with a disability requested accommodation is not feasible, the public entity still has to take any action to establish equality, or as close as possible to that, between persons with disabilities and individuals without disabilities using the public entity’s services.
  9. There was no form to alter as the plaintiff was seeking help in filling out the form. So, the argument that helping the plaintiff fill out the form would violate the California Government Code’s prohibition on altering records doesn’t wash.
  10. The County of Alameda’s argument that to help the plaintiff fill out the form would constitute the unauthorized practice of law does not wash either because long-standing California precedent holds that acting as a scrivener to perform the clerical service of filling in the blanks on a particular form in accordance with the information furnished by someone is not the unlicensed practice of law in California.

III

Intentional Discrimination/Deliberate Indifference

  1. To seek injunctive relief under title II, a plaintiff only has to allege that she was denied meaningful access to a public entity’s program, services, or activities.
  2. Getting monetary damages under title II of the ADA does involve a showing that the defendant’s conduct constituted deliberate indifference.
  3. Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely and the failure to act upon that likelihood.
  4. Knowledge that a harm to a federally protected right is substantially likely is automatically satisfied where the need for such an auxiliary aid or service is obvious or where an auxiliary aid or service is required by statute or regulation.
  5. A qualified reader or other effective method of making the County of Alameda’s paper form available to the plaintiff, or another similar service or action, is explicitly sanctioned by regulation, 28 C.F.R. §35.104190194215219216.
  6. Once a public entity is put on notice of the need for an auxiliary aid or service, a public entity must undertake a fact specific investigation to determine an appropriate aid or service. The particular service will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication at taking place. Don’t forget about this blog entry191195216220217.
  7. When determining what auxiliary aids or services are necessary, a public entity must give primary consideration to the requests of individuals with disabilities per 28 C.F.R. §35.160192196217221218(b)(2).
  8. A public entity may not merely speculate that a suggested auxiliary aid or service is not feasible but must determine what auxiliary aids or services are necessary based upon the information gathered from the individual with the disability and, where needed, from qualified experts.
  9. A public entity may not require an individual with a disability to be accompanied by another person. For that matter, it cannot rely upon the accompanying person to facilitate communication with an individual with a disability. 28 C.F.R. §35.160193197218222219(c).
  10. While it is absolutely true that deliberate indifference requires a public entity to act more than negligently, its belief that it was acting in good faith is not sufficient by itself to defeat an allegation that it acted deliberately in failing to adequately investigate or in refusing to provide a necessary auxiliary aid or service.
  11. Plaintiff alleged that the only auxiliary aid or service offered by the County of Alameda was one specifically prohibited by 28 C.F.R. §35.160194198219223220(c), i.e. reliance on a person accompanying her.
  12. The County of Alameda has not alleged any evidence that it undertook any fact specific investigation to determine an appropriate aid or service for the plaintiff. Rather, the County of Alameda merely provides speculative and conclusory assertions that her requested aid or service (being provided a qualified reader or scribe), was not feasible.
  13. Since plaintiff has properly alleged a claim under title II of the ADA, the derivative ADA title V and state law claims survive as well.

IV

Thoughts/Takeaways

  1. People with disabilities, including myself, are business owners.
  2. Undue burden/fundamental alteration is an affirmative defense and the burden is on the public entity alleging it.
  3. The amendments to the ADA mean that the ADA term is “qualified,” rather than the Rehabilitation Act term, “otherwise qualified.” The meaning of the two terms are identical.
  4. Facially neutral policies do not automatically get a pass.
  5. A person does not have to be Deaf, deaf, or hard of hearing to benefit from the effective communication regulations. Here, the person was blind. Also, as an FYI, the hearing loss community disfavors the term, “hearing impaired.”
  6. Unlike title III, the title II effective communication rule requires primary consideration be given to the person with a disability preferred mode of communications.
  7. Filling out a form is communication. That is, an individual is trying to understand what is being communicated to him or her in writing.
  8. You don’t see it litigated a lot, but it is noteworthy that the court cites to the Code of Federal Regulation requiring a public entity’s CEO to sign off on any situation where there is a claim of undue burden or fundamental alteration.
  9. A defendant is going to have a hard time prevailing on a motion to dismiss where they argue that a fundamental alteration/undue burden is involved.
  10. Undue burden is going to be extremely difficult to show because you look to the entire resources of the public entity. It is more likely that fundamental alteration will be an easier defense. While it may be an easier defense than undue burden, that does not mean it would be an easy defense. You basically need to show that the operations of your public entity’s program, services, or activities is going to be turned upside down.
  11. Even if you can show somehow that an undue burden or fundamental alteration exist, you are going to have to do everything short of that to figure out a win-win solution.
  12. Title II of the ADA does not have an interactive process requirement because that is a title I construct. All of the titles of the ADA do require an individualized analysis. See PGA Tour v. Martin195199220224221. This case clearly illustrates that the interactive process is something that title II entities should use even if theoretically they don’t have to. An interactive process between the parties may have enabled a win-win situation if it was used. All public entities, and for that matter I think every entity covered by the ADA, needs to be trained on the do’s and don’ts of the interactive process196200221225222.
  13. Under this opinion, a harm to a federally protected right is substantially likely is automatic if the need for an auxiliary aid or service is obvious. What does obvious mean? As a preventive law matter, you might look to “readily apparent,” with respect to the two inquiries that may be asked when someone is representing their dog as a service animal. See this blog entry for example197201222226223.
  14. The title I term is “reasonable accommodation,” while the title II and title III terms are, “reasonable modifications.” The two terms are identical in their meaning.
  15. Any entity covered by the ADA may want to think twice about denying a reasonable accommodation/modification where that accommodation/modification is specifically listed as a possibility in the Code of Federal Regulations. Same argument where a covered entity insists that a person do something that the regulations say you cannot insist upon.
  16. Even if title II of the ADA doesn’t require an interactive process, it does require a fact specific investigation to determine the appropriate aid or services. How do you determine the appropriate aid or services is hard for me to understand without engaging in the interactive process. I suppose it can be done, but it would not lead to the best results.
  17. Good faith is a defense to deliberate indifference but it is not taken at face value. You have to look beyond face value to the facts. Also, deliberate indifference, which we discussed here198202223227224, is not necessary for injunctive relief.
  18. The unauthorized practice of law argument is interesting. It didn’t work here because the person recording the information is not exercising independent legal discretion.
  19. Exhaustion of administrative remedies is not required for title II claims.
  20. It is mind-boggling to me the amount of money that was spent on litigating this when the accommodations/modifications were so simple and costs so little.

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