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Media Alerts - Paul Richard McGann v. Cinemark USA, Inc. - Third Circuit
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October 10, 2017
  Paul Richard McGann v. Cinemark USA, Inc. - Third Circuit
Headline: A movie theater's failure to provide tactile interpretation to a deaf and blind patron constitutes a denial of the "full and equal enjoyment of the goods and services" of a "place of public accommodation" under the ADA.

Area of Law: Americans with Disabilities Act ("ADA")

Issue(s) Presented: Does a movie theater's failure to provide a deaf and blind patron with a tactile interpreter so he can experience a film in one of its theaters constitute a Title III of the ADA "special prohibition" regarding auxiliary aids and services and thus violates Title III's "general rule" that no individual shall be denied "full and equal enjoyment of the goods and services" of "a place of public accommodation?"

Brief Summary: Paul McGann, who is disabled within the meaning of the ADA, requested from Cinemark USA, Inc. an American Sign Language ("ASL") tactile interpreter so that he could experience a movie in his local Cinemark theater. Cinemark denied his request and McGann filed suit, claiming Cinemark violated Title III of the ADA, which requires public accommodations, such as movie theaters, to furnish auxiliary aids and services, which include qualified interpreters.
The ADA defines "auxiliary aid or service" to include a qualified interpreter. Furthermore, the Department of Justice ("DOJ") technical assistance materials, which provide implementation guidance on the ADA, specifically include tactile interpreters in the definition of auxiliary aids. Therefore, the Third Circuit found that an ASL tactile interpreter was a qualified interpreter under Title III of the ADA.
Next, the Third Circuit found that the entertainment service Cinemark provides includes furnishing auxiliary aids and services so that patrons with disabilities can have the economic and social experience of viewing a movie in a theater. According to the Third Circuit, a legislative purpose of the ADA is to allow individuals with disabilities to experience "mainstream American life," such as seeing a movie in a theater. Therefore, in denying McGann's request for an ASL tactile interpreter, Cinemark excluded or denied him from Cinemark's services.
Lastly, the Third Circuit determined that Cinemark's first defense failed, finding that a tactile interpreter would not "fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered" since the video, audio or physical experience of the movie would not be altered by the interpreter. The Third Circuit remanded the case to the district court for a factual determination of Cinemark's "undue burden defense" and vacated the district court's judgment in favor of Cinemark.

Extended Summary: Paul McGann, who is blind and deaf, requested from Cinemark USA, Inc. an ASL tactile interpreter so that he could experience a movie in his local Cinemark theater. Cinemark denied his request and McGann filed suit, claiming Cinemark violated Title III of the ADA. Title III of the ADA requires public accommodations, including movie theaters, to furnish auxiliary aids and services, which include qualified interpreters.
First, the Third Circuit established that there was no dispute that McGann is disabled within the meaning of the ADA and that Cinemark is a public accommodation under Title III of the ADA. Second, the Third Circuit considered whether McGann's requested ASL tactile interpreter was an "auxiliary aid or service." The ADA defines "auxiliary aid or service" to include a qualified interpreter. The Third Circuit noted an ASL tactile interpreter is a "qualified interpreter." Additionally, the Department of Justice ("DOJ") technical assistance materials, which are included in the DOJ implementing regulations for communicating with individuals who have vision, hearing, or speech disabilities, specifically mention tactile interpreters as auxiliary aids. Therefore, the Third Circuit found that an ASL tactile interpreter falls within the definition of an auxiliary aid or service under Title III.
Next, the Third Circuit considered whether Cinemark's failure to provide tactile interpretation of the movie excluded McGann from or denied him Cinemark's services. The Third Circuit reasoned that entertainment venues, such as movie theaters, provide an entertainment service to the public. That entertainment service includes selecting a movie of interest, purchasing a ticket to the movie, navigating to the correct auditorium, and providing auxiliary aids or services. The Third Circuit looked to Congress' intent in enacting the ADA, which was to address the "compelling need to integrate individuals with disabilities into the economic and social mainstream of American life." According to the Third Circuit, presenting movies in a theater and having the ability and opportunity to experience a movie "is a component of the social mainstream of American life." The Third Circuit reasoned that providing McGann with a tactile interpreter for a movie supports Congress' legislative intent. Thus, the Third Circuit concluded that a denial of McGann's request for a tactile interpreter excluded him or denied him from Cinemark's services, which is a violation of Title III of the ADA.
Having established that Title III's auxiliary aids and service requirement applies to McGann's request for a tactile interpreter, the Third Circuit analyzed Cinemark's defenses. Title III does not require a public accommodation to furnish a requested auxiliary aid or service if doing so would "fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered" or "would result in an undue burden." The Third Circuit found that because tactile interpretation of a movie does not require any changes to the physical environment or video or audio content of the movie, it does not significantly alter the essential nature of the services. Lastly, the Third Circuit evaluated Cinemark's undue burden defense, which under the DOJ regulations instructions of Title III include "significant difficulty or expense." The Third Circuit remanded the determination of this defense to the district court due to its fact-intensive nature.
The Third Circuit, thus, vacated the district court's entry of judgment for Cinemark and remanded the case for consideration of Cinemark's undue burden defense.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/162160p.pdf

Panel: Smith, Chief Judge, McKee and Restrepo, Circuit Judges

Argument Date: November 10, 2016

Date of Issued Opinion: October 6, 2017

Docket Number: No. 16-2160

Decided: Vacated and remanded

Case Alert Author: Katherine A. Osevala

Counsel: Carol A. Horowitz and Jeffrey M. Skakalski, counsel for Appellant; M. Brett Burns, Bridget J. Daley and Brian H. Simmons, counsel for Appellee; Vanita Gupta, Tovah R. Cadleron and Bonnie I. Robin-Vergeer, counsel for Amicus Curiae United States of America

Author of Opinion: Circuit Judge Restrepo

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/10/2017 03:12 PM     3rd Circuit  

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