United States District Court, E.D. Virginia, Alexandria Division
Leonie M. Brinkema United States District Judge
Plaintiff John Krpan ("plaintiff or "Krpan") instituted this civil action against defendant Registry of Interpreters for the Deaf, Inc. ("defendant" or "RID"), alleging that certain certifications RID provides and the testing processes for those certifications violate Title III of the Americans with Disabilities Act ("ADA"). In Count I of the two-count Complaint, plaintiff alleges that the National Interpreter Certification ("NIC") exam violates Title III of the ADA by measuring the sensory skills of NIC candidates rather than their "aptitude or achievement level" and by acting "as a certificate to prospective employers" that an NIC-certified individual is not disabled. Compl. [Dkt. No. 1] ¶¶ 24-25, Apr. 8, 2015. In Count II, he alleges that the Certified Deaf Interpreter ("CDI") credential violates Title III of the ADA by measuring an applicant's sensory skills rather than aptitude and by acting "as a certificate to prospective employers that the [CDI credential] holder is disabled, which the ADA would otherwise forbid the prospective employer from asking during the interview process." Id. ¶¶ 27-28.
In addition to seeking attorneys' fees and costs, plaintiff seeks a permanent injunction that would bar RID from inquiring into an applicant's disability status, from requiring that an applicant have a certain disability status, and from stating that holders of a credential have or do not have a disability. Id. at 4. Krpan also seeks an order requiring RID to permit him to apply for the NIC certification and to sit for the NIC exam "with all accommodations otherwise required by 28 C.F.R. § 36.309, including but not limited to an interpreter to translate Krpan's ASL into spoken English." Id. at 4-5. RID responds that plaintiffs claims are time-barred and that plaintiff lacks standing to pursue his claim regarding the NIC exam. RID also contends that neither the NIC nor CD1 credentials or exams violate the ADA and that the plaintiffs requested changes or accommodations would place an undue burden on RID.
Before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, defendant's motion will be granted and plaintiffs motion will be denied.
Plaintiff is a legally deaf individual who is categorized as "profoundly deaf." Dep. of John Krpan [Dkt. No. 48-1] ("Pl's Dep.") 37:3-4. Although he can hear some sounds, plaintiff is unable to "interpret what those sounds mean" and "cannot hear verbal communication at all." Pl's Dep. 37:5-10. There is also no indication in the record that plaintiff can or does communicate verbally. Plaintiff characterizes himself as "a deaf person fluent in American Sign Language ("ASL") and other forms of nonverbal communication" who "makes his living as an interpreter for people who are deaf and hard of hearing." Mem. of P&A in Supp. of Pl's Mot. for Summ. J. [Dkt. No. 45] ("Pl's Br.") at 1, Oct. 9, 2015.
Defendant is a non-profit 26 U.S.C. § 501(c)(3) organization that provides credentialing services for different types of interpreters for the deaf and hard of hearing. Def. Registry of Interpreters for the Deaf, Inc.'s Mem. in Supp. of its Mot. for Summ. J. [Dkt. No. 48] ("Defs Br.") at 4, Oct. 9, 2015; Compl. ¶¶ 9-10. RID's National Interpreter Certification ("NIC") and Certified Deaf Interpreter ("CDI") credential are the only credentials at issue in this action. See Compl. ¶¶ 11, 20; Def.'s Answer [Dkt. No. 5] ("Answer") ¶¶ 11, 20, May 8, 2015. RID's Department of Certification establishes the standards for the examinations interpreters must take to obtain NIC and CDI certifications and reviews any requests for accommodations by test-takers. Def.'s Br. at 5. "[A]ll of [RID's] tests are driven by market demands" and are meant "to capture the qualities and skill sets that a practitioner needs to be able to fulfill" in various situations. Dep. of Registry of Interpreters for the Deaf, Inc., by and through its Corp. Representative Anna Witter-Merilhew [Dkt. No. 48-2] ("Witter-Merithew Dep.") 57:16-21.
RID provides a candidate handbook for each certification. The NIC Candidate Handbook states that the application process is "open to interpreting professionals who: are at least 18 years of age; are hearing; have the [requisite] knowledge and skills...; meet RID's current educational requirement; and agree to abide by the NAD-RID Code of Professional Conduct." NIC Candidate Handbook 2015 [Dkt. No. 48-3] ("NIC Handbook") at 8. According to RID, the term "hearing" as used in the NIC Handbook refers to "someone who moves through the world receiving information directly auditorily" and who is "bilingual" in ASL and spoken English. Witter-Merithew Dep. 19:6-12. Although the NIC Handbook states that the process is "open" to professionals who "are hearing, " NIC Handbook at 8, neither the handbook nor any other evidence in the record shows that candidates are required to provide proof of their hearing ability before or during the application process. Moreover, the parties agree that the NIC exams do not require that candidates undergo an "audiogram" to measure their hearing ability. See Def.'s Br. at 9; Pl's Opp'n to Def.'s Mot. for Summ. J. [Dkt. No. 54] ("Pl's Opp'n") at 2, Oct. 23, 2015.
Instead, the NIC application process includes a written "NIC Knowledge" test and an oral "NIC Interview and Performance" exam ("the exam"), the latter of which is at issue in this litigation. See NIC Handbook at 9; Compl. ¶ 14. The exam is "designed to test the specific market requirements for an individual who is bilingual and can simultaneously render from spoken English into ASL and from ASL into intelligible spoken English." Witter-Merithew Dep. 27:14-18. The hour-long exam uses "video-based vignettes" during which "the candidate watches the exam problems on a video screen and the candidate's signed and spoken responses are recorded." NIC Handbook at 21. The vignettes present both ethical dilemmas and real-world situations and require that the candidate provide simultaneous interpretation both from ASL to spoken English and from spoken English to ASL without pausing or changing the timing of the test once it begins. Id. at 22.
Candidates must be able to "directly hear the information and simultaneously, instantaneously render it into sign language" and also to "watch sign language and simultaneously, immediately render it into clear intelligible spoken English." Witter-Merithew Dep. 21:21-22:3. As a result, test-takers are evaluated on their "spoken English articulation competencies, intonation, use of inflection, reciprocity, pacing, [and] stress." Witter-Merithew Dep. 43:14-16. Due to these requirements, RID has determined that an individual who is profoundly deaf could not pass the exam as structured and has further determined that it could not provide an accommodation in the form of an interpreter to a profoundly deaf individual without fundamentally altering the test and placing an undue burden on RID. See Def.'s Br. at 6-7.
In contrast to the NIC certification, the CDI credential is limited to interpreting professionals who "are deaf or hard-of-hearing." CDI Candidate Handbook 2013 [Dkt. No. 48-6] ("CDI Handbook") at 8. Because the exam is "designed to evaluate deaf interpreters, " CDI candidates must provide "[a]n official letter from a physician or audiologist providing verification of hearing loss" before they can apply. Id. at 12. The Performance Exam does not measure spoken English competence, Witter-Merithew Dep. 74:15-16; instead, it "measures someone's ability to work...monolingually" by "go[ing] from print text to [ASL], [and] from sign language to sign language." Witter-Merithew Dep. 19:19-21, 71:17-18. Specifically, the test requires candidates to "interpret a written text to a Deaf consumer;" "provide ASL interpreting to the Deaf consumer while working with a hearing interpreter as a team;" "provide simultaneous interpretation to consumers who are Deaf-Blind or Deaf-close-vision for a Deaf presenter;" and "provide mirror interpreting for audience members' comments after a forum." CDI Handbook at 24.
RID explains that the CDI Performance Exam and credential are intended "to capture the life experience of individuals who move through society as visual, spatial, gestural communicators, and who could bring to the interpreting task a unique and more sophisticated level of competence than is available with the NIC interpreters, " because hearing interpreters do not "share the common life experience" of a deaf individual. Witter-Merithew Dep. 58:1-7. That common life experience, according to RID, allows deaf interpreters "to deal with deaf individuals who may not be sufficiently competent in [ASL]" or who may "have very idiosyncratic ways of using sign language that surpass the experience of most hearing interpreters, " because a deaf interpreter is better equipped to recognize non-ASL signs and "to creatively use gestures and iconic behaviors that convey complex information." Witter-MerithewDep. 59:17-60:8.
In the words of RID's expert Dr. Patrick Boudreault ("Boudreault"),  professionals who obtain CDI credentials "have native or near-native proficiency in ASL, and share the Deaf experience with semi-lingual deaf consumers or even bilingual deaf consumers; this "sameness' is an important factor in establishing rapport and communicating effectively." Expert Report [Dkt. No. 48-4] ("Boudreault Report") at 7. By way of contrast, Boudreault states that hearing interpreters typically lack "the intrinsic characteristics required to navigate the 'Deaf-World' experience and the flexibility of visual-gestural communication" because they have not been "immersed in the visual-gestural world" and therefore cannot "broaden their linguistic and non-linguistic range beyond normal linguistic channels." Id. As a result, when serving foreign, semi-lingual, illiterate, deaf-blind, or other types of deaf consumers who do not use traditional ASL, these NIC interpreters and other hearing interpreters often "team up with CDIs to ensure that the quality of communication [is] being maintained throughout the interpretation process." Id. Therefore, a CDI interpreter's job duties may include translating the communications of a less literate deaf individual into standard ASL that an NIC interpreter can then translate into spoken English. Witter-Merithew Dep. 37:19-38:1.
Krpan takes issue with aspects of both the NIC and CDI certifications. Krpan first complained to RID about its use of ''deaf in 1993, when the credential was called "Certified Deaf Interpreter-Provisional." Def.'s Br. at 13; Pl's Dep. 85:9-13. After the name changed to CDI, plaintiff renewed his complaints. Between 2010 and 2015, plaintiff sent multiple emails to RID demanding that RID change the name and explaining why he believes the name to be illegal and a "hindrance for interpreting jobs. "See Pl's Dep. Ex. 16; see also Pl's Dep. Exs. 11, 13, 14. Although Krpan stated at one point that he refused to obtain the CDI credential because he "objected] to the name, " Pl's Dep. Ex. 13 at 3, he nevertheless applied for the credential "four or five times" between 2002 and 2012,  Pl's Dep. 97:16-98:5, and obtained CDI certification in April of 2014 after passing the exam in June of 2013. Pl's Dep. 106:2-7.
Krpan began complaining about the NIC exam in 2010. Def.'s Br. at 28; Pl's Opp'n at 3. Plaintiff testified that he met with former RID Executive Director Clay Nettles ("Nettles") in 2010 to discuss the NIC exam, and that Nettles told plaintiff that the NIC was "for hearing interpreters, the CDI's for deaf interpreters." Pl's Dep. 128:22-129:1; Def.'s Br. at 12. In 2013, plaintiff met with former RID Executive Director Shane Feldman ("Feldman") by video conference and asked why he "wasn't able to take the NIC, " to which Feldman responded by "referr[ing] [plaintiff] to the website" and telling plaintiff that "the NIC was for hearing interpreters and that CDI was for deaf people." Pl's Dep. 126:8-127:10. Plaintiff also claims that he was told by Earl Fleetwood, then-Director of the RID Department of Certification, that plaintiff was not permitted to apply for the NIC and should instead apply for the CDI credential.Pl's Dep. 73:12-74:19. Despite these discussions with RID employees, plaintiff has never applied to take the NIC exam. Pl's Dep. 73:9-11.
Plaintiff commenced this civil action on April 8, 2015, by filing a two-count Complaint. The parties have completed discovery and filed their cross-motions for summary judgment, which motions are now before the Court, and have engaged in oral argument of their motion. For the reasons that follow, summary judgment will be granted to the defendant.
Both parties have moved for summary judgment on both counts of plaintiff's Complaint. Plaintiff argues that the NIC violates the ADA by impermissibly measuring candidates' impaired sensory skills and contends that none of the exceptions in the regulations are applicable. Mem. of P&A in Supp. of Pl's Mot. for Summ. J. [Dkt. No. 45] ("Pl's Br.") at 6. Similarly, plaintiff argues that the CDI illegally measures applicants' impaired sensory skills and "requires the holder to have a certain disability status which is unnecessary to the actual skills being tested, " because a hearing individual could pass the test. Id. at 8-9. In making this argument, plaintiff alludes to a purported desire on the part of the hearing members of RID to restrict CDI holders to "narrow categories of work." Id. at 9. Additionally, plaintiff argues that the relevant regulations deserve deference, that the ADA's statement of purpose and legislative history support his contentions, and that he satisfies the standards for issuing a permanent injunction.
In its cross-motion, defendant argues that plaintiffs Complaint is completely time-barred and that plaintiff lacks standing to pursue his claim regarding the NIC exam. Def.'s Br. at 3. With regards to the substantive merits of plaintiff s claims, defendant argues that the NIC examination legally measures a candidate's ability to simultaneously translate spoken English into ASL and vice versa, as well as that the plaintiffs requested changes to the test and accommodations would fundamentally alter the test and place an undue burden on RID. Id., at 2. As to the allegations in Count II, defendant contends that its use of "deaf in the CDI credential does not violate the ADA because the ADA does not require confidentiality in this context and that the term "deaf is not a discriminatory term but is instead a term of empowerment. IoV Finally, defendant argues that the requirement that CDI candidates be deaf or hard of hearing does not violate the ADA because it does not discriminate against any individuals with a disability. Id.
A. Standard of Review
Summary judgment is merited where the record demonstrates that "there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P, 56(a). When a court is presented with cross-motions for summary judgment, it must consider each motion "separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar. 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip Morris Inc. v. Harshbareer. 122 F.3d 58, 62 n.4 (1st Cir. 1997)) (internal quotation marks omitted). Therefore, with respect to each motion, the court must "resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion, " id (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)) (internal quotation marks omitted); however, all inferences ...