Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 1 of 21 1 2 3 4 5 Andrew Rozynski, Esq. (NY# 5054465; pro hac vice, to be filed) EISENBERG & BAUM, LLP 24 Union Square East, Fourth Floor New York, NY 10003 212-353-8700 (tel.) 212-353-1708 (fax) arozynski@eandblaw.com 6 7 8 9 10 11 12 13 John K. Buche (CA Bar No. 239477) (Local Counsel) BUCHE & ASSOCIATES, P.C. 875 Prospect St., Suite 305 La Jolla, CA 92037 858-459-9111 (tel.) 858-430-2426 (fax) jbuche@buchelaw.com Attorneys for Plaintiff NANCY BARKER 14 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 15 16 17 -----------------------------------------------------NANCY BARKER, CASE NO. 18 Plaintiff, COMPLAINT 19 20 21 22 23 v. JURY TRIAL DEMANDED REGENTS OF THE UNIVERSITY OF CALIFORNIA; UNIVERSITY OF CALIFORNIA, BERKELEY COLLEGE OF NATURAL RESOURCES. 24 25 Defendants. ------------------------------------------------------ 26 27 28 -1Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 2 of 21 1 2 PRELIMINARY STATEMENT 1. Plaintiff NANCY BARKER is a deaf individual who communicates primarily 3 4 in American Sign Language (“ASL”), which is her expressed, preferred, and most effective 5 means of communication. Plaintiff is also a PhD candidate in the field of Biological and 6 7 8 9 Conservation Sciences who was a visiting student researcher in Defendants’ Environmental Science, Policy, and Management program from 2016 to 2017. Defendants are deans, staff and administrators of UC Berkeley, a state school in the University of 10 11 12 13 14 15 16 California system. 2. Defendant has discriminated against Plaintiff unlawfully, on the basis of Plaintiff’s disability of deafness by refusing to provide the ASL interpreters that she required to attend, understand, and participate in classes and other extra-curricular activities associated with Plaintiff’s research on Berkeley’s campus. 17 18 19 20 21 3. Based on Plaintiff’s allegations herein, it is evident that Defendant has failed to implement policies and to train its employees and staff regarding the civil rights and communication needs of deaf individuals. Plaintiff brings this action to compel Defendant 22 to cease unlawful discriminatory practices and implement broad policies and procedures 23 that will ensure effective communication, full and equal enjoyment, and a meaningful 24 25 26 27 opportunity for deaf individuals to participate in and benefit from Defendant’s educational offerings and services. 4. Plaintiff seeks declaratory, injunctive, and equitable relief; compensatory and 28 -2Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 3 of 21 1 2 exemplary damages; and attorneys’ fees and costs to redress Defendant’s unlawful discrimination on the basis of her disability in violation of Title II of the Americans with 3 4 Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., Section 504 of the Rehabilitation Act, 5 29 U.S.C. § 794, and the California Government Code § 11135. 6 THE PARTIES 7 8 9 5. Plaintiff NANCY BARKER brings this action as an individual residing in Canada. Ms. Barker is profoundly deaf. She primarily communicates in American Sign 10 11 Language and is an individual with a disability within the meaning of federal and state 12 antidiscrimination laws. 13 14 15 16 6. Defendants are deans, staff, and administrators at Berkeley, a public university within the University of California system and are subject to the requirements of Title II of the ADA and § 11135 of the California Government Code. 17 JURISDICTION & VENUE 18 19 20 21 7. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 for Plaintiff’s claims arising under the laws of the United 22 States, and supplemental jurisdiction pursuant to 28 U.S.C. § 1367 for Plaintiff’s claims 23 arising under state law. 24 25 26 27 8. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because Defendant resides in the district. Additionally, the acts and omissions giving rise to this Complaint occurred within this District. 28 -3Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 4 of 21 1 2 STATEMENT OF FACTS 9. Plaintiff Nancy Barker is profoundly deaf and communicates primarily in 3 4 5 American Sign Language (ASL). 10. Plaintiff requires auxiliary aids and services to communicate effectively in an 6 7 8 9 educational setting. 11. Plaintiff is a Canadian national. 12. In October 28, 2011, December 13, 2013, November 17, 2015, and January 10 11 31, 2016, Professor Wayne Getz invited Plaintiff to study as a Visiting Student Researcher 12 (VSR) in his lab at Berkeley. 13 14 15 16 13. In December of 2015, Plaintiff requested ASL interpreters from Ben Perez in the Disabled Students Program (DSP) prior to the start of the Spring Semester in preparation for her tenure as a VSR. She also made a request to Randy Jordan at DSP who 17 18 informed Plaintiff that accommodations would need to be provided by her department 19 instead of the DSP. 20 21 14. Professor Getz told Plaintiff that the department did not have funds to pay for 22 interpreters and would not be able to provide accommodations for Plaintiff during her time 23 at Berkeley. 24 25 26 27 15. In January of 2016, Plaintiff visited Berkeley’s campus for a month on invitation by Professor Getz to get her bearings and to meet the other academics who work in Professor Getz’ lab. Neither Professor Getz nor any person working in his lab know 28 -4Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 5 of 21 1 ASL. 2 16. To afford Plaintiff access to communication with her new lab colleagues and 3 4 to facilitate communication between Plaintiff and Berkeley faculty, Plaintiff requested an 5 accommodation in the form of an ASL interpreter from DSP several times in January 2016. 6 7 8 9 Despite her requests, Defendants failed to provide Plaintiff with an interpreter in January 2016. 17. In August 2016, Plaintiff returned to Berkeley to begin her year-long tenure 10 11 12 13 14 15 16 as a VSR under Professor Getz. The fall semester began on August 17th. 18. Because of administrative oversight on the part of Defendants, Plaintiff’s immigration paperwork was not in order when she arrived on Berkeley’s campus. As a result, Plaintiff was forced to wait until her immigration paperwork was completed to become a documented VSR. 17 18 19 20 21 22 23 19. Regardless of the fact that Plaintiff was not classified as a documented VSR when she first arrived, Professor Getz instructed Plaintiff to attend the classes which she would have been auditing had her paperwork been completed. 20. Professor Getz put in a request for Plaintiff to audit the classes and Plaintiff attended the classes as an auditor until her departure from Berkeley, with the exception of 24 25 26 27 one week in September when Plaintiff visited Gallaudet University and one week when Plaintiff was required to fly to Canada to complete her JI visa paperwork. 21. However, the university provided no accommodations to Plaintiff for her 28 -5Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 6 of 21 1 classes. 2 22. Without accommodations, Plaintiff was completely unable to understand the 3 4 classes that she attended on Berkeley’s campus or interactions with colleagues in Professor 5 Getz’ lab. 6 23. 7 8 9 Plaintiff could not follow along during lectures, hear questions posed by her colleagues, participate in classroom discussions, or understand interactions with colleagues while conducting lab work. 10 24. 11 12 13 14 15 One of Plaintiff’s professors even refused to provide her with lecture slides and responded by saying that he wasn’t going to confer “special treatment” for Plaintiff when she asked for some of the lights to be turned on in the lecture hall so that she could better see. 16 25. Plaintiff could not even understand the work that her lab colleague was 17 18 executing although he communicated about the work to other hearing individuals right next 19 to her. 20 21 22 23 26. Plaintiff was also unable to interact with colleagues, fellow students, faculty, and staff outside of the classroom. 27. On August 23, in order to enable her to participate in and access her 24 25 26 27 coursework and other educational opportunities to the same extent as her hearing peers, Plaintiff emailed DSP again to advise the office that she was back on campus and required ASL interpreters or CART captioning services for her classes, labs, and seminars. DSP 28 -6Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 7 of 21 1 2 again responded that Plaintiff’s accommodations needed to be handled by her academic department. 3 4 5 28. On Aug 24, Plaintiff emailed Karen Neilson, the director of DSP, to invite her to a meeting with Randy Jordan (a member of DSP staff). Ms. Neilson did not attend 6 7 8 9 meeting. In the meeting, Mr. Jordan advised Plaintiff that DSP would not accommodate Plaintiff, but that he understood Plaintiff’s concerns about forcing her supervisors and department to shoulder costs of accommodations as it would strain Plaintiff’s relationship 10 11 with the department. Mr. Jordan instructed Plaintiff to request interpreters from Sam 12 Castaneda at the Visiting Scholar and Postdoc Affairs office (VSPA). 13 14 15 16 29. On Aug 26, Plaintiff emailed both DSP and VSPA to request ASL interpreters for non-course related activities, and to request that VSPA organize for interpreters for Plaintiff’s courses, labs, and seminars. Sam Castaneda responded to inform Plaintiff that 17 18 VSPA would not provide interpreters to Plaintiff and that Plaintiff’s department would 19 need to pay for interpreters. 20 21 30. On Aug 29, Plaintiff emailed Derek Coates, a disability compliance officer, a 22 second time asking for help as a result of both DSP and VSPA’s refusal to provide 23 interpreters for her. 24 25 26 27 31. On Aug 30, Professor Getz spoke with Plaintiff to inform her that he and his department lacked the resources to pay for her accommodation needs. Professor Getz also stated that Plaintiff needed to stop asking for accommodations or he would retract his 28 -7Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 8 of 21 1 invitation and she would lose her position as a visiting student researcher at Berkeley. 2 32. On Aug 31, Keith Gilless, the Dean of the College of Natural Resources, 3 4 emailed Plaintiff informing her that attending classes on a tourist visa was fraudulent and 5 that she could not attend classes or participate in meetings without a completed J1 visa. 6 33. 7 8 9 That same day, Professor Getz told Plaintiff to stop running around asking DSP for interpreters because it was rocking the boat with the College of Natural Resources in regard to Plaintiff’s attending classes without a J1 Visa. Professor Getz told Plaintiff to 10 11 keep quiet and just keep attending classes, despite not having J1 Visa because no one would 12 know. 13 14 15 16 34. Professor Getz informed Plaintiff that he believed Dean Gilless’ email was motivated by Plaintiff’s “making too much noise and attracting too much attention to herself” by requesting interpreters to accommodate her disability. Professor Getz told 17 18 Plaintiff that she should just keep quiet and continue to attend classes until her JI Visa was 19 completed. 20 21 35. Plaintiff explained to Professor Getz that she was afraid of being deported as 22 per the warning in Dean’s email, but that she was completely unable to understand what 23 the instructors were saying in her classes without the aid of interpreters. Professor Getz 24 25 26 27 told Plaintiff, “Just do your best.” 36. Plaintiff then told Professor Getz that she felt that there was no point for her to attend classes without interpreters because she couldn’t understand anything. Professor 28 -8Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 9 of 21 1 2 Getz became angry with Plaintiff and stated, “How can you expect the university to pay so much money for one person?” Plaintiff informed Professor Getz about her rights under the 3 4 5 ADA to be provided with accommodations. 37. In spite of the fact that Plaintiff could not understand anything being said in 6 7 8 9 them, Professor Getz told Plaintiff that if she did not go to her classes, then she would not be able to finish her PhD because the information and techniques she would learn in her classes were essential in the development of Plaintiff’s ability to analyze data. 10 11 12 13 14 15 16 38. Following the direction of Professor Getz, Plaintiff attended classes from August 24, 2016 to November 15, 2016 with no accommodations and without requesting interpreters for fear of being found out and deported. Plaintiff continued requesting interpreters for extra-curricular activities during this time to no avail. She was first provided an interpreter for an extra-curricular and public events beginning on September 17 18 9, 2016. However, even in regard to such public events, there was no consistency with the 19 University’s provision of interpreters. 20 21 39. At one point in September of 2016, Plaintiff was forced to hire her own 22 interpreters and to ask Berkeley staff to reimburse her for the cost. University staff refused 23 to reimburse her. 24 25 26 27 40. On October 15, 2016, Plaintiff’s immigration paperwork was completed and she became a documented VSR. 41. In spite of her status as a VSR, the university still refused to provide Plaintiff 28 -9Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 10 of 21 1 2 with interpreters or other accommodations. 42. On several occasions in October and November 2016, Defendants provided 3 4 interpreters, but failed to inform Plaintiff that interpreters were being provided. On those 5 occasions, Plaintiff did not attend the events for which interpreters were provided because 6 7 8 9 – informed by her previous experiences in which she was consistently denied interpreters – she believed that no interpreter would be provided and that she would be completely unable to interact at the event. Consequently on these occasions, Plaintiff was robbed of 10 11 valuable opportunities to communicate with colleagues and faculty as a result of 12 Defendant’s oversight. 13 14 15 16 43. On one occasion, DSP refused to provide Plaintiff with interpreters because she neglected to input the zip code of the campus onto the request form although the zip code was obvious as the address was on Defendant’s campus. 17 18 19 20 21 22 23 44. At a meeting on December 9, 2016 between Plaintiff and Fabrizio Meija, Assistant Vice Chancellor, Office of Diversity, Equity and Inclusion, Plaintiff was informed by Mr. Meija that the university did not have a policy in place to provide accommodation for Deaf VSRs. 45. On several occasions in January 2017, Defendant provided interpreters for 24 25 26 27 events or sessions that were cancelled at the last minute. On these occasions, Plaintiff used the interpreters for alternative purposes such as speaking to colleagues or faculty members. 46. When Defendants found out that Plaintiff used interpreters for purposes other 28 -10Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 11 of 21 1 2 than those for which they were explicitly hired, Defendants contacted individual interpreters to inform them that if a session for which they were booked was cancelled, 3 4 they were to report the cancelation to the interpreting agency and refuse to provide 5 alternative interpreter services to Plaintiff. Defendants also informed Plaintiff that in such 6 7 8 a situation she needed to cancel the interpreter’s services and to re-request a new session for whatever alternative activity she desired. 9 47. Plaintiff informed Defendants that such a policy would be ineffective for her 10 11 because Berkeley’s disabled student’s office required several days to process requests for 12 interpreters and would be unable to re-request a new session for an interpreter on the fly. 13 48. 14 15 On a number of occasions, Plaintiff complained to Defendants about the amount of time that it required for the university to provide interpreters to her. 16 49. Plaintiff was often required to make requests for interpreters a week in 17 18 advance. Such a practice robbed Plaintiff of the ability to engage in impromptu interactions 19 that are a common and essential part of university life and are accessible to other non- 20 21 disabled students. 50. 22 23 Because Plaintiff was unable to engage in such events and interactions, she was hindered and impeded from functioning as a graduate student equal to her hearing 24 25 26 27 peers. 51. Defendants ignored Plaintiff’s explanations and insisted that she request interpreters a week in advance AND provide Defendants’ staff with the names and numbers 28 -11Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 12 of 21 1 2 of the faculty members hosting/sponsoring the events that Plaintiff wished to attend. 52. Plaintiff explained to Defendants that it was not always possible to provide 3 4 them with a name and number of a faculty member hosting an event because she did not 5 always have that information and not all of the events that she wished to attend were hosted 6 7 8 9 by a faculty member. 53. Defendants refused to adjust these rules and informed Plaintiff that the requirements were intended to punish Plaintiff for her “specific behavior” in regard to those 10 11 times when Plaintiff was made to miss events for which interpreters were provided because 12 Defendant failed to inform Plaintiff that interpreters would be provided and also for those 13 14 15 16 times in which Plaintiff used interpreters for alternative purposes when specific events were cancelled. 54. On several occasions, Defendants’ staff contacted the faculty member hosting 17 18 a particular event to ‘verify’ that Plaintiff was telling the truth about the occurrence of such 19 an event. 20 21 55. On one occasion, DSP staff called one of Plaintiff’s instructors check if she 22 was lying about a class meeting that was scheduled for a specific day during exam week 23 when classes were not normally scheduled. 24 25 26 27 56. This practice was incredibly embarrassing and demeaning to Plaintiff and was intended to punish Plaintiff for her genuine attempt to use those accommodations so seldom provided to her to equally participate in her education. 28 -12Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 13 of 21 1 2 57. Because of the time and opportunities that Plaintiff lost as a result of Defendants’ refusal to provide adequate accommodations during her time at Berkeley, 3 4 5 Plaintiff asked Professor Getz if he would agree to sponsor her for another year. 58. Professor Getz declined, citing that he did not think it was in Plaintiff’s best 6 7 8 9 interest in completing her PhD because she had been “wasting too much time” asking for accommodations. He also said Plaintiff had been squandering her time and opportunities by behaving like an undergraduate student auditing classes (the very same classes that he 10 11 12 13 14 15 16 had instructed Plaintiff to audit). 59. On a number of occasions, Professor Getz told Plaintiff that she was being too demanding; that she should be grateful to be at Berkeley; and that she should just lip read, asking people to speak slowly and repeat things, or write things down. 60. At four meetings with University staff, ( with Fabrizio Meija on December 9 17 18 2016, one with Blake Wu on March 3 2017 and two with Khira Griscavage on May 31 19 2017 and on June 15 2017) Plaintiff informed Defendants that its policy of requiring 20 21 individual departments to pay to accommodate disabled students encouraged 22 discrimination both by making it more difficult for disabled students like herself to access 23 adequate accommodations and by dis-incentivizing department heads from sponsoring 24 25 26 27 disabled researchers to begin with for financial reasons. 61. Defendants responded to these meetings by stating that “providing access is the responsibility of everyone involved on the campus.” 28 -13Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 14 of 21 1 2 62. Under the guise of this policy of shared responsibility, the university, the disabled student office, and certain faculty continuously and repeatedly refused to 3 4 accommodate Plaintiff until she acquired counsel. 5 63. Without the aid of regularly scheduled interpreters or other accommodations, 6 7 8 9 Plaintiff was completely unable to understand or participate in the educational opportunities offered to other visiting student researchers by Berkeley. In this regard, Plaintiff received services that were objectively inferior to those provided to students who 10 11 are hearing. 12 13 14 64. disability of deafness. 65. 15 16 Plaintiff was subjected to this discriminatory treatment on the basis of her Plaintiff would like to eventually return to Berkeley to continue her studies either as a VSR or as a PhD candidate. 17 66. 18 19 20 21 indifference to her rights and to her communication needs, causing Plaintiff to endure humiliation, stress, anxiety, and emotional distress. CLAIM I: VIOLATIONS OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT 22 23 24 25 Defendant intentionally discriminated against Plaintiff with deliberate 67. Plaintiff repeats and re-alleges all preceding paragraphs in support of this 68. At all times relevant to this action, Title II of the ADA, 42 U.S.C. § 12131, et claim. 26 27 28 seq. has been in full force and effect and has applied to Defendant’s conduct. -14Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 15 of 21 1 2 69. At all times relevant to this action, Plaintiff has been substantially limited in the major life activities of hearing and speaking, and is an individual with a disability within 3 4 5 the meaning of the ADA, 42 U.S.C. § 12102(2). 70. Defendants are a public entity within the meaning of Title II of the ADA, 42 6 7 8 9 U.S.C. § 12131(1). 71. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the 10 11 benefits of the services, programs, or activities of a public entity, or be subjected to 12 discrimination by any such entity.” 42 U.S.C. § 12132. 13 14 15 16 72. Federal regulations implementing Title II of the ADA provide that a public entity may not “(i) deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service; (ii) afford a qualified individual 17 18 with a disability an opportunity to participate in or benefit from the aid, benefit, or service 19 that is not equal to that afforded others; [or] (iii) provide a qualified individual with a 20 21 disability with an aid, benefit, or service that is not as effective in affording equal 22 opportunity to obtain the same result, to gain the same benefit, or to reach the same level 23 of achievement as that provided to others.” 28 C.F.R. § 35.130(b)(1). 24 25 26 27 73. Federal regulations implementing Title II of the ADA further provide that a public entity “shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as 28 -15Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 16 of 21 1 communications with others.” 28 C.F.R. § 35.160(a)(1). 2 74. Federal regulations implementing Title II of the ADA further provide that a 3 4 public entity “shall furnish appropriate auxiliary aids and services where necessary,” and 5 “in order to be effective, auxiliary aids and services must be provided in accessible formats, 6 7 8 in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 35.160(b). 9 75. Defendant discriminated against Plaintiff, on the basis of her disability of 10 11 deafness, in violation of Title II of the ADA and its implementing regulations. 12 13 14 15 16 76. Plaintiff is therefore entitled to injunctive relief, as well as an award of compensatory relief, attorneys’ fees, costs, and disbursements pursuant to the ADA, 42 U.S.C. § 12188(a)(1), and/or common law. CLAIM II: VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT 17 18 19 20 21 22 23 77. Plaintiff repeats and re-alleges all preceding paragraphs in support of this 78. At all times relevant to this action, Section 504 of the Rehabilitation Act, 29 claim. U.S.C. § 794 was in full force and effect and applied to the Defendant’s conduct. 79. At all times relevant to this action, Plaintiff has had substantial impairment to 24 25 26 27 the major life activities of hearing and speaking within the meaning of the Rehabilitation Act regulations at 45 C.F.R. § 84.3(j). Accordingly, she is an individual with a disability as defined under 29 U.S.C. § 708(20)(B), Section 504, as amended. 28 -16Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 17 of 21 1 2 80. At all times relevant to this action, Defendant has received federal funds, and has therefore been a program or activity receiving federal financial assistance pursuant to 3 4 5 29 U.S.C. § 794(b). 81. Pursuant to Section 504, “No otherwise qualified individual with a 6 7 8 9 disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794. 10 11 12 13 14 15 16 82. Defendant has discriminated and continues to discriminate against Plaintiff solely on the basis of her disability by denying her meaningful access to the services, programs, and benefits the Defendant offers to other individuals, and by refusing to provide auxiliary aids and services necessary to ensure effective communication, in violation of Section 504 of the Rehabilitation Act. 29 U.S.C. § 794. 17 18 19 20 21 22 23 83. Defendant further discriminated against the individual Plaintiff by failing to ensure effective communication through the specific provision of qualified in-person interpreters. 84. Plaintiff is therefore entitled to compensatory damages, injunctive relief, and an award of attorney’s fees, costs, and disbursements, pursuant to 29 U.S.C. § 794(a). 24 25 26 27 CLAIM III: VIOLATIONS OF SECTION 11135 OF THE CALIFORNIA GOVERNMENT CODE 85. Plaintiff repeats and re-alleges all preceding paragraphs in support of this 28 -17Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 18 of 21 1 2 claim. 86. At all times relevant to this action, Section 11134 of the California 3 4 5 Government Code has been in full force and effect and has applied to Defendant’s conduct. 87. At all times relevant to this action, Plaintiff has been substantially limited in 6 7 8 9 the major life activities of hearing and speaking, and is an individual with a disability within the meaning of Section 11134 of the California Government Code. 88. Defendant is a public entity within the meaning of Section 11134 of the 10 11 12 13 14 15 16 California Government Code. 89. Section 11134(a) states that “no person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, 17 18 or be unlawfully subjected to discrimination under, any program or activity that is 19 conducted, operated, or administered by the state or by any state agency, is funded directly 20 21 22 23 by the state, or receives any financial assistance from the state. Notwithstanding Section 11000, this section applies to the California State University.” 90. Section 11134(b) further states that “with respect to discrimination on the 24 25 26 27 basis of disability, programs and activities subject to subdivision (a) shall meet the protections and prohibitions contained in Section 202 of the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations 28 -18Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 19 of 21 1 2 adopted in implementation thereof, except that if the laws of this state prescribe stronger protections and prohibitions, the programs and activities subject to subdivision (a) shall be 3 4 5 subject to the stronger protections and prohibitions.” 91. Defendant discriminated against Plaintiff, on the basis of her disability of 6 7 8 9 deafness, in violation of Section 11134 of the California Government Code and its implementing regulations. 92. Plaintiff is therefore entitled equitable relief pursuant to Section 11139 of the 10 11 California Government Code. 12 PRAYER FOR RELIEF 13 14 15 16 WHEREFORE, Plaintiff respectfully prays that this Court grant the following relief: a. Enter a declaratory judgment, pursuant to Rule 57 of the Federal Rules of Civil 17 Procedure, stating that Defendant’s policies, procedures, and practices have subjected 18 Plaintiff to unlawful discrimination in violation of Title II of the Americans with 19 20 21 22 Disabilities Act, Section 504 of the RA, and the California Government Code § 11135; b. Issue an injunction forbidding Defendant from implementing or enforcing any policy, procedure, or practice that denies deaf or hard of hearing individuals meaningful 23 24 access to and full and equal enjoyment of Defendant’s facilities, services, programs, or 25 offerings; 26 27 c. Issue an injunction ordering Defendant: 28 -19Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 20 of 21 1 2 i. to develop, implement, promulgate, and comply with a policy prohibiting future discrimination against Plaintiff or other deaf or hard of hearing 3 4 5 individuals by failing to provide effective communication; ii. to develop, implement, promulgate, and comply with a policy requiring that 6 7 8 9 when a deaf or hard of hearing individual requests an in-person interpreter for effective communication, one will be provided as soon as practicable in all educational offerings presented by Defendants; 10 11 iii. to develop, implement, promulgate, and comply with a policy to ensure that 12 Defendant will notify individuals who are deaf or hard of hearing of their 13 14 15 16 right to effective communication. This notification will include posting explicit and clearly worded notices that Defendant will provide sign language interpreters, videophones, and other communication services to 17 18 19 20 21 ensure effective communication with deaf or hard of hearing persons; d. Award to Plaintiff: i. Compensatory damages pursuant to the ADA and the RA; 22 ii. Reasonable costs and attorneys’ fees pursuant to the ADA and the RA; 23 iii. Interest on all amounts at the highest rates and from the earliest dates 24 25 26 27 28 allowed by law; iv. Any and all other relief that this Court finds necessary and appropriate. DEMAND FOR JURY TRIAL -20Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1 Filed 09/12/18 Page 21 of 21 1 2 Plaintiff demands trial by jury for all of the issues a jury properly may decide, and for all of the requested relief that a jury may award. 3 4 5 Dated: September 12, 2018 Respectfully submitted, 6 BUCHE & ASSOCIATES, P.C. 7 By: /s/ John K. Buche John K. Buche (CA Bar No. 239477) Local Counsel 875 Prospect St., Suite 305 La Jolla, CA 92037 8 9 10 11 12 13 14 EISENBERG & BAUM, LLP 24 Union Square East, Fourth Floor New York, NY 10003 212-353-8700 (tel.) 212-353-1708 (fax) 15 16 By: 17 18 19 20 Andrew Rozynski, Esq. Pro hac vice—to be filed arozynski@eandblaw.com 21 22 Attorneys for Plaintiff Nancy Barker 23 24 25 26 27 28 -21Barker v. The University of California at Berkeley – COMPLAINT Case 4:18-cv-05594 Document 1-1 Filed 09/12/18 Page 1 of 1 CIVIL COVER SHEET (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS Regents of the University of California; University of California, Berkeley College of Natural Resources Nancy Barker (b) (c) Canada (If Known) (Firm Name, Address, and Telephone Number) Eisenberg & Baum, LLP 24 Union Square East, Fourth Floor, New York, NY 10003 (212) 353-8700 Buche & Associates, P.C. (Local Counsel) 875 Prospect St., Suite 305 La Jolla, CA 92037 (858) 459-9111 BASIS OF JURISDICTION (Place an “X” in One Box Only) II. Alameda (IN U.S. PLAINTIFF CASES ONLY) (EXCEPT IN U.S. PLAINTIFF CASES) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) PTF and One Box for Defendant) PTF or DEF (U.S. Government Not a Party) DEF and (Indicate Citizenship of Parties in Item III) NATURE OF SUIT IV. (Place an “X” in One Box Only) CONTRACT TORTS PERSONAL INJURY FORFEITURE/PENALTY BANKRUPTCY LABOR PROPERTY RIGHTS OTHER STATUTES PERSONAL INJURY PERSONAL PROPERTY SOCIAL SECURITY IMMIGRATION CIVIL RIGHTS PRISONER PETITIONS HABEAS CORPUS FEDERAL TAX SUITS REAL PROPERTY OTHER V. ORIGIN (Place an “X” in One Box Only) (specify) VI. CAUSE OF ACTION (Do not cite jurisdictional statutes unless diversity) 42 U.S.C. § 12181 et seq.; 29 U.S.C. § 794 Disability discrimination VII. REQUESTED IN COMPLAINT: CLASS ACTION DEMAND $ JURY DEMAND: VIII. RELATED CASE(S), IF ANY (See instructions): IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2) SAN FRANCISCO/OAKLAND (Place an “X” in One Box Only) DATE 09/12/2018 SAN JOSE SIGNATURE OF ATTORNEY OF RECORD EUREKA-MCKINLEYVILLE /s/ John K. Buche