- This matter was initiated by a complaint filed under title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 et seq., with the United States Department of Justice (“Department”) against Joseph David Camacho, Attorney At Law, Albuquerque, New Mexico.
- The complaint was filed by the National Association of the Deaf Law and Advocacy Center on behalf of Carolyn Tanaka, alleging that Mr. Camacho refused to secure a qualified sign language interpreter when necessary to ensure effective communication with her.
- The NAD Law and Advocacy Center made the following allegations: Ms. Tanaka is deaf and uses sign language for communication. Ms. Tanaka retained Mr. Camacho as legal counsel in Tanaka v. University of New Mexico Hospital, et al., C. No: 04cv00645 in the United States District Court for the District of New Mexico. In that lawsuit, Ms. Tanaka alleged that the University of New Mexico Hospital failed to provide a qualified interpreter on numerous occasions during the admission of her son, K.T., then age six, to the hospital from April 30, 2002, through May 3, 2002. During the course of his representation of Ms. Tanaka, Mr. Camacho also failed to provide qualified interpreter services despite Ms. Tanaka’s repeated requests. Instead, Mr. Camacho asked that Ms. Tanaka’s then-nine-year-old son, K.T., “interpret” at appointments between Ms. Tanaka and Mr. Camacho. Ms. Tanaka refused to have her son act as an “interpreter” in these complicated legal matters. On or around September 2004, Mr. Camacho sent Ms. Tanaka Interrogatories and Request for Production of Documents for her to answer in connection with her complaint against the University of New Mexico Hospital. Ms. Tanaka had great difficulty understanding the Interrogatories and Request for Production of Documents. Ms. Tanaka again requested a qualified interpreter so that she could effectively communicate with Mr. Camacho regarding how to answer the discovery requests. Mr. Camacho again refused to provide a qualified interpreter in order to communicate effectively with and assist Ms. Tanaka in answering the Interrogatories and Request for Production of Documents. On October 28, 2004, Mr. Camacho sent Ms. Tanaka a letter stating in part, “It is my understanding that you refuse to cooperate unless I provide you with an interpreter, which will cost me approximately eighty dollars an hour. I have never had to pay to converse with my own client. It would be different if you did not have anyone to translate for you. However, you have a very intelligent son who can do it for you. It appears that we are not able to work together. I believe that you should find another attorney as I am going to withdraw from this case.” First, he contends that he represented her effectively and competently, and gave her the same quality of service that he provides to any other non-disabled client. On November 9, 2004, Mr. Camacho made a motion to withdraw as Ms. Tanaka’s attorney, stating an “irreconcilable conflict.” On December 20, 2004, Mr. Camacho’s motion to withdraw was granted. The case against the Hospital was dismissed “due to her failure to respond to discovery.”
- Mr. Camacho disputes portions of Ms. Tanaka’s allegations. He has submitted a statement to the Department contending that he was able to communicate effectively with Ms. Tanaka by means of written notes, e-mail, telephone relays and through the interpretation of Ms. Tanaka’s nine-year-old son. He also points out that he hired an interpreter for the hearing on his withdrawal from Ms. Tanaka’s case. To demonstrate that he communicated effectively with Ms. Tanaka, Mr. Camacho has submitted to the Department a list of pleadings that he prepared on Ms. Tanaka’s behalf. He contends that he represented her effectively and competently, and gave her the same quality of service that he provides to any non-disabled client. Mr. Camacho maintains that he withdrew from the case because Ms. Tanaka stopped returning his phone calls and e-mail messages in connection with the discovery requests referred to above.
- The Attorney General is authorized to enforce title III of the ADA. 42 U.S.C. § 12188(a)(2). In addition, the Attorney General may commence a civil action to enforce title III in any situation where the Attorney General believes a pattern or practice of discrimination exists or a matter of general public importance is raised. 42 U.S.C.§ 12188(b)(1)(B).
- Title III specifically defines discrimination as, among other things:
the failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids or services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.
42 U.S.C. § 12182(b)(2)(A)(emphasis added); see 28 C.F.R.§§ 36.303. The ADA defines “auxiliary aids” to include, among other things, “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments . . ..” 42 U.S.C. § 12102(1). A public accommodation is required to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with hearing impairments. 28 C.F.R. § 36.303. The preamble to the regulation lists communications involving legal matters as an example of a type of communication that can be “sufficiently lengthy or complex to require an interpreter for effective communication.” 28 C.F.R. pt. 36, App. B at 703 (2005).
- The title III regulation defines “qualified interpreter” as “an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.” 28 C.F.R. § 36.104. The preamble to the definition of “qualified interpreter” explains:
Public comment also revealed that public accommodations have at times asked persons who are deaf to provide family members or friends to interpret. In certain circumstances, notwithstanding that the family member or friend is able to interpret or is a certified interpreter, the family member or friend may not be qualified to render the necessary interpretation because of factors such as emotional or personal involvement or considerations of confidentiality that may adversely affect the ability to interpret “effectively, accurately, and impartially.”
28 C.F.R. pt. 36, App. B at 684-685 (2005) (internal quotes in original).
- The Parties to this Settlement Agreement (“Agreement”) are the United States of America (“United States”) and Joseph David Camacho, Esq.
- Joseph David Camacho is an attorney in private practice, providing legal services, and therefore, a public accommodation under Title III of the ADA. 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104.
- The United States has investigated the allegations that Mr. Camacho failed to provide Ms. Tanaka with effective communication and finds the allegations meritorious.
- To resolve this matter without further litigation, Mr. Camacho is willing to agree to the terms of this settlement agreement. In exchange, the United States agrees to terminate its investigation of this matter, without resorting to litigation, except as provided in paragraph 18.
- In order to avoid litigation of the issues discussed herein, and in consideration of the mutual promises and covenants contained in this Agreement, the Parties hereby agree to the following:
- Consistent with the ADA, Mr. Camacho will not discriminate against any individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of his private practice by refusing or failing to secure qualified interpreters when necessary to ensure effective communication with clients who are deaf and use sign language.
- Mr. Camacho will adopt, maintain, and enforce the policy attached hereto, and by reference incorporated herein, as Exhibit 1 to this Agreement on effective communication with individuals with disabilities. Within ten (10) days of the effective date of this Agreement, Mr. Camacho will post of the policy in a conspicuous area of his law office where members of the public can readily read the policy. Within twenty (20) days of the effective date of this Agreement, Mr. Camacho will include in his business website (http://jdclawfirm.com) a statement of the policy.
MONETARY RELIEF FOR COMPLAINANT
- The ADA authorizes the United States Attorney General to seek a court award of compensatory damages on behalf of individuals aggrieved as the result of violations of the ADA. 42 U.S.C. § 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2). Within thirty (30) days of the effective date of this Agreement, Mr. Camacho agrees to pay Carolyn Tanaka $1,000.00 in damages and to send a copy of this Agreement and Exhibits 2 and 3, hereto attached, to Ms. Tanaka by certified mail, return receipt requested, or by Federal Express. Ms. Tanaka must return an executed “Release of All Claims,” Exhibit 3, to Mr. Camacho within thirty (30) days of receipt of said documents. Mr. Camacho will send the undersigned counsel for the United States a copy of Exhibits 2 and 3 when they are sent to Ms. Tanaka.
- If Ms. Tanaka accepts Mr. Camacho’s offer of relief as set out in Exhibits 2 and 3, Mr. Camacho will, within thirty (30) days of receipt of the signed “Release of All Claims,” send Ms. Camacho, by certified mail, return receipt requested, or by Federal Express, a check for ONE THOUSAND DOLLARS ($1,000.00). Mr. Camacho will provide to the United States a copy of the check and transmittal letter sent to Ms. Tanaka.
- If at any time Mr. Camacho desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the United States in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written agreement by the United States to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the United States, which approval will not be unreasonably withheld or delayed.
- The United States may review compliance with this Agreement at any time. If the United States believes that Mr. Camacho has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the United States for a modification of the relevant terms, the United States will so notify Mr. Camacho in writing and it will attempt to resolve the issue or issues in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to Mr. Camacho, it may institute a civil action in federal district court to enforce the terms of this Agreement.
- Failure by the United States to enforce this entire Agreement or any provision hereof with regard to any deadline or any other provision herein will not be construed as a waiver of the United States' right to enforce other deadlines and provisions of this Agreement.
- A copy of this document or any information contained in it will be made available to any person by Mr. Camacho or the United States on request.
- This Agreement constitutes the entire agreement between the Parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement (including its Attachments, which are hereby incorporated by reference), will be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect Mr. Camacho’s continuing responsibility to comply with all aspects of the ADA.
- This Agreement shall be binding on Mr. Camacho, his agents and employees. In the event Mr. Camacho seeks to transfer or assign all or part of his interest in his law practice, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale Mr. Camacho’s law practice shall obtain the written agreement of the successor or assign to comply with any obligations remaining under this Agreement for the remaining term of this Agreement.
- This Agreement will remain in effect for three (3) years.
- The effective date of this Agreement is the date of the last signature below.
|FOR JOSEPH DAVID CAMACHO:
||FOR THE UNITED STATES:
JOSEPH DAVID CAMACHO
Attorney At Law
2900 Louisiana Blvd., N.E., North Bldg.,
Albuquerque, New Mexico 87110
|WAN J. KIM
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
RENEE M. WOHLENHAUS, Deputy Chief
ROBERT J. MATHER, Trial Attorney
Disability Rights Section - NYA Bldg.
950 Pennsylvania Ave., NW
Washington, DC 20530
|Dated: __________________________||Dated: August 9, 2007|
POLICY ON EFFECTIVE COMMUNICATION WITH INDIVIDUALS WITH DISABILITIES
To ensure effective communication with clients and companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, note takers, written materials, assistive listening devices and systems, and real-time transcription services.
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED
National Association of the Deaf
Law and Advocacy Center
8630 Fenton Street
Silver Spring, Maryland 20910
Re: United States v. Joseph David Camacho D.J. No. 202-18-178
Dear Mr. Charmatz:
The United States and Joseph David Camacho have entered into a Settlement Agreement to resolve your complaint on the behalf of your client, Carolyn Tanaka, alleging disability discrimination. A copy of the Settlement Agreement is enclosed.
Pursuant to the Settlement Agreement, Joseph David Camacho hereby offers to settle
your allegations against him, for the sum of ONE THOUSAND DOLLARS ($1,000.00). To
receive the monetary award, Ms. Tanaka must communicate your acceptance to Mr. Camacho
by executing the enclosed “Release of All Claims” and returning it to him within thirty (30)
days of your receipt of this letter. You must send the signed “Release of All Claims” by mail
JOSEPH DAVID CAMACHO
Attorney At Law
2900 Louisiana Blvd., N.E., North Bldg., Suite C-1
Albuquerque, New Mexico 87110
Joseph David Camacho
RELEASE OF ALL CLAIMS
D.J. No. 202-49-37
For and in consideration of the acceptance of ONE THOUSAND DOLLARS ($1,000.00) offered to me by Joseph David Camacho pursuant to a Settlement Agreement between the United States of America and Joseph David Camacho: I, Carolyn Tanaka, release and forever discharge Joseph David Camacho, his subsidiaries, affiliates, insurers, successors and assigns, and its current, past, and future officers, directors, shareholders, employees, and agents, of and from all legal and equitable claims under, arising out of or related to our complaint, D.J. No. 202-49-37, disputed by and containing the allegation that Joseph David Camacho failed to provide effective communication in violation of the Americans with Disabilities Act. I further agree to file no further disciplinary complaints against Joseph David Camacho in connection with the matters described in the Settlement Agreement.
This Release constitutes the entire agreement between myself and Joseph David Camacho without exception or exclusion. This Release will be considered null and void in the event Mr. Camacho fails to deliver me a check in the amount of $1,000.00 within thirty (30) days of the date of this signed Release.
I acknowledge a copy of the Settlement Agreement between the United States and Joseph David Camacho has been made available to me. I further acknowledge that I have had the opportunity to review the terms of this Release with an attorney of my choosing and to the extent that I have not obtained that legal advice, I voluntarily and knowingly waive my right to do so.
I HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED.
Signed this _______ day of ____________, 2007
Sworn and subscribed to before me this
_______ day of _____________, 2007.
My commission expires:____________