Reply Brief — Tucker v. Hardin County (No. 08-1291)

—

[ Supreme Cour. U-S-

fa JUL 13 2002

OFFICE OF THE CLERK

No. 08-1291

Hn The

Supreme Court of the Anited States

ODIS TUCKER, VONNIE TUCKER,

and BLAKE TUCKER,

Petitioners,

Vv.

HARDIN COUNTY, a political subdivision of State of

Tennessee, SAVANNAH POLICE DEPARTMENT,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITIONERS' REPLY BRIEF

WILLIAM J. BROWN

(TENN. BPR# 5450)

Counsel of Record

WILLIAM J. BROWN & ASSOCIATES

23 N. OcokFE, P.O. Box 1001

CLEVELAND, TN 37364-1001

PH: (423) 476-4515

Counsel for Petitioners

July 13, 2009

Becker Gallagher + Cincinnau, GH - Washington, D.C. - 800.890.5001

i

TABLE OF CONTENTS

TABLA OF AUTHORITIBS «6.65.55 enue deeves

:

Lf.

SRILIIOTIO Ck. ww vo oa eee

Petitioners Have Not Waived Their Claims

OF TIRBCTOTRATIMEION ww cg os es cs oe ee

Respondents Improperly Argue the Merits of

Their Defense as Justification for Denying

tO PWG snk eo eee

(a) Respondents assertion that the circuit

courts factual conclusion that the proffered

accommodations were effective is the legal]

question that is presented by petitioners. ..

(b) The circuits are tn serious conflict as to

the legal issues before the court in this

i

TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc.,

a 4,6

Chisolm v. McManimon,

er eee nee Geen Cae. ZOO])....... 1... ec eeee 7

Duffy v. Riveland,

en mee Gee Cir, 190G) ...........6-6-- 7

Randolph v. Rodgers,

eae ee eee Sees (IT. AYO) .......\..-6--- 7

Tucker v. Hardin County, et al,

oe we eee worn Cir. Z008) ............. 3,4

STATUTES and RULES

a 1,6

ES OST 6

gE 6

NS ee 5

Fed. R. Civ. P. 56(c)

1

PETITIONERS RESPONSE TO CITY OF

SAVANNAH AND HARDIN COUNTY,

TENNESSEE’S BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

I. Introduction

Both of the respondents in this case have raised

similar issues associated with their argument that this

court should deny the Petitioners application. The

first issue is that the petitioners have waived their

claims by failing to raise them in the court of appeals.

The second issue is primarily associated with the

“merits” with respondents arguing that the court of

appeals was right in its decision to dismiss petitioners

claims because of its determination that the proffered

aids were effective was a correct finding of fact. As

will be demonstrated hereinafter, the respondents fail

to present arguments that are relevant to this courts

considerations in granting a petition for certiorari.

II. Petitioners Have Not Waived Their Claims

of Discrimination

Both respondents suggest that the petitioners have

waived their claims of discrimination by failing to

raise the question of whether proof of “intentional

discrimination” is required to prevail in a claim for

compensatory damages under Title I] of the Americans

with Disability Act (ADA) 42°-U.S.C. $12132. This is

clearly not born out by the record, because the court of

appeals specifically affirmed the dismissal of the

petitioners claim because they had failed to prove

“intentional discrimination”. As such, the matter was

considered and ruled upon specifically by that lower

court.

2

The petitioners in their brief to the court of appeals

argued that they had presented a prima facia case of

discrimination under the ADA presenting specific

arguments explaining why petitioners had proven

discriminatory conduct directed at them personally by

the respondents. (Appellants 6" Cir. Brief, pgs. 32 -

54) At page 32 of their brief to the court of appeals,

the petitioners specifically argued that the legal

standard for discrimination by stating:

“..a ‘Public Entity’ commits a ‘discriminatory

act’ when a speech and hearing disabled person

is excluded, denied services, segregated or

otherwise treated differently than other

individuals because of the absence’ or

inadequacies of ‘auxiliary aids’.” Id. (Supporting

citations omitted)

It is important to note that in their briefs to the Sixth

Circuit, neither of she respondents objected to this

standard, and neither specifically mentioned a

requirement of proof of “intentional discrimination” or

that the petitioners had failed to prove that type of

discrimination. (Savannah Police Dept. 6“ Cir. Brief,

pg. 17; Hardin County 6" Cir. Brief, pg. 15). In their

responsive brief, Savannah Police Department

(Savannah) based its entire argument on _ the

proposition that an arrest is not a service, program or

activity under the ADA.’ Hardin County based its

' Savannah suggests that the petitioners have failed to address an

issue decided by the court of appeals that an arrest is not a

program, service or activity of a public entity under the facts of

this case. (Savannah Brief at pg. 14) It is important to note that

the court of appeals assumed that the arrest fell within the

parameters of Title II of the ADA for purposes of its decision and

3

defense entirely on a factual argument that the

accommodations provided were “effective” in providing

the same benefits as other persons that were serving

time in the jail and that went to the Hardin County

General Sessions Court. Id.

In rendering its decision, the Sixth Circuit raised

the requirement of proof of “intentional

discrimination” for the first time as a basis for

sustaining the dismissal of petitioners claims. The

court suggested that a plaintiff must show that:

“... the “discrimination was intentionally

directed toward him or her in particular. Acts

and omissions which have a disparate impact on

disabled persons in general [are] not specific

acts of intentional discrimination against [the

plaintiff} in particular.” Tucker v. Hardin

County, et al., 509 F.3d 526, 532 (Apx. pg. 14a).?

resolved the case in favor of the respondent because it found that

the petitioners had failed to prove their claim of “intentional

discrimination”. Tucker, 539 F.3d at 535 (Apx. pg. 20a - 21a). As

such, that issue is not before the court.

* It is important to note that this is not a disparate impact case.

All of the petitioners claims of discrimination involve actions that

were specifically cirected towards them or request for aids they

personally made tothe public entities that were denied or ignored.

As such, the court of appeals decision is not based on a failure to

prove intentional discrimination because the conduct was not

directed at the petitioners personally. Instead the court has held

that petitioners failed to prove intentional discrimination because

they were proffered aids that the court felt were adequate or

effective. Petitioners have vigorously argued that the aids were

not adequate or effective throughout the proceedings of this case.

4

Thereafter, the opinion reviews the facts and concludes

that there is no proof of “intentional discrimination” as

to each event that the petitioners claim they were

discriminated in because the proffered aids were

“effective” in providing access to the respondents

programs, services and activities. This was despite the

fact that the matter was before the court on summary

judgment where the evidence was to be looked at in

the light most favorable to the petitioners, Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The

court of appeals determined that they would rest their

decision on the “facts”. Tucker, 539 F.3d at 539 (Apx.

py. 29a).

After the publication of the Sixth Circuit opinion,

petitioners filed a “Petition for Rehearing or in the

Alternative Hearing En Banc”. Petitioners provided

an extensive review of the facts and citations from

numerous circuits presenting factual circumstances

similar to petitioners claims. In each of those cited

cases, the court of appeals required jury trials because

there was a question of fact required to be resolved by

a jury as to whether the proffered aids were adequate.

Petitioners further argued that they had presented

evidence to support that requirement and that the

proffered accommodations were not effective. As such,

no matter the adjective associated with discrimination

under Title IT of the ADA, petitioners argued and cited

to authority supporting their claim that they had

presented a prima facia case of discrimination under

Title II of the ADA.* This is just as petitioners had

*In the original petition filed in this court, five different standards

of discrimination are demonstrated as used by the various circuits

throughout the country. It is the petitioners position that no

+)

argued from the beginning of the law suit, and this is

the specific issue that they are requesting this court to

hear. The court of appeals applied an analysis that

used the term “intentional” to describe “discrimination.

As such, the matter was before the court and was a

central tenant in dismissing petitioners claims.

Ill. Respondents Improperly Argue the

Merits of Their Defense as Justification

for Denying the Petition

(a) Respondents assertion that the

circuit courts factual conclusion that

the proffered accommodations were

effective is the legal question that is

presented by petitioners.

Under Sup. Ct. R. 10(a), the significant criteria for

this courts consideration of a petition is whether there

is a conflict among the circuit courts, not whether the

decision was a correct one. Both respondents present

arguments that petitioners claims against them cannot

be sustained because no reasonable jury could find

that the communications during their contact were

ineffective. (Savannah Brief in Opposition, pg. 14;

Hardin County Brief in Opposition, pg. 10-12) As has

been typical of respondent’s approach through out this

a

matter the adjectives associated with the standard for

discrimination, including the use of the term “intentional

discrimination”, they have actionable claims. For example, the

petitioners repeatedly requested that they be provided a sign

language interpreter throughout the various contacts with the

respondents. They were never provided with one. This could

certainly be considered to be an action directed at them personally

and therefore an “intentional discrimination”.

6

case, they wish to argue facts that must be looked at in

the hight most favorable to the petitioners. Hardin

County even admits that the court of appeals

conducted an independent de novo “factual” analysis

and headlines that the Sixth Circuit did not rule that

the effectiveness of the provided accommodations was

a “question of law”. (Hardin County Brief in

Opposition to Petition, pg. 9) That then begs the legal

question presented by petitioners to this court: “Is the

adequacy of aids proffered by a public entity a jury

question?”.

A court reviewing motions for summary judgment

can only make a final ruling if there are “no genuine

issue as to any material fact and that movant is

entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). The fact finding role when there is a dispute

2s to the facts of a case is the responsibility of a jury.

On motions for summary judgment, the court must

look at the evidence in the light most favorable to the

petitioners. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986) Hardin County asserts and is

supported by the court of appeals decision that the

communication by respondents agents were effective

because communications were “achieved”.* (Hardin

* The ADA imposcs on a public entity a duty of more than just

achieving communications. It requires that the communications

be adequate to enable the disabled person to participate in the

program, service or activity to the same extent as a non-disabled

person, 42 U.S.C. $12132; 28 C.FR. $35.130(b)(1tw); 28 CFR.

$35.160. It is important to note that the basis for the factual

conclusion that the communications were effective was the

testimony of the non-disabled participants in the various contacts

that the petitioners had with the respondents. The failure to give

credence to the testimony of the hearing and speech disabled

7

County Reply to Petition for Cert., pg. 9) As presented

in the petition, Blake and Otis Tucker testified that for

them, the proffered aids were not effective and

communications were not achieved in a_non-

discriminatory manner. (Petition for Cert., pgs 5 - 14)

Savannah asserts that their proffered accommodations

of lip reading and pencil and paper were effective

because the communications did not disrupt the police

officers mission. (Savanna Reply to Petition for Cert.,

pg. 15).

Neither respondent provides any argument as to

why this court should not consider whether a finding

of “effectiveness” or technically the “adequacy of the

proffered aid” is a legal one that should be done by

judges as held by the court of appeals or a factual one

that should be considered by a jury as held by the

Third, Eighth, and Ninth Circuits. See, Chisolm ov.

McManimon, 275 F.3d 315, 327-328 (3d Cir. 2001);

Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir.

1999); Duffy v. Riveland, 98 F.3d 447, 454, 455 (9th

Cir. 1996). Certainly, the conflicts in the circuits as to

this question, as specifically delineated in the petition,

amply support the conclusion that this matter should

be considered by this court.

petitioners they did not understood what was being communicated

compounds the discrimination that the ADA was supposed to

eliminate.

8

(b) The circuits are in serious conflict

as to the legal issues before the court in

this case.

Hardin County argues that all of the circuit

conflicts presented in the Tuckers petition associated

with the question of what constitutes a prima facia

case of discrimination are in reality not in conflict.

(Hardin County Brief in Opposition to Petition for

Cert., pg. 7 - 9) It asserts that the fundamental

question in all of the cases is whether the alleged

failure to accommodate caused a fundamental

difference in the aid, benefit, or service compared with

what a non-disabled individual receives. (Id at pg. 7).

Simply speaking, Hardin County has gone full circle

back to the issue of the adequacy or effectiveness of the

proffered aid. As such, it appears to present an

argument that the issue as to whether discrimination

has been perpetrated against a disabled person is not

one of “intentional discrimination”, but instead is

resolved by the determination of the adequacy of the

aid proffered by the respondent. In light of the

demonstrated conflict in the circuits as to whether the

effectiveness of a proffered aid is a factual decision to

be determined by a jury or a legal one to be decided by

the court, it clearly supports the necessity of this court

granting the petition to resolve that conflict.

9

CONCLUSION

The respondents have failed to provide any proper

basis for not granting the petition in this case. As

such, the petition should be granted.

Respectfully submitted,

Odis Tucker, Blake Tucker and

Vonnie Tucker, Petitioners

By: William J. Brown (Tenn. BPR# 5450)

Counsel of Record

William J. Brown & Associates

23 N. Ocoee, P.O. Box 1001

Cleveland, TN 37364-1001

Ph: (423) 476-4515

Couvsisel for Petitioners

July 13, 2009