reverse the decision of the district court to grant summary judgment to the phoenix association of realtors because st it rests upon the erroneous factual conclusion that mr tauscher somehow refused to discuss with the association alternative accommodations to an a s l sign language interpreter nd because the court's decision also ignored the associations own duties under the a t a i and the perilous state  law provisions to actually affirmatively offer accommodations that would allow mr tauscher to have effective communication in their interactive classroom setting can i ask a question does make no difference or honor it but yes he does have a full time job elsewhere so he does his realty agency work on the side as a nd job which is not uncommon among real estate agents at least in arizona and  is not involve an employment situation a title one type of situation it is a title three public accommodation setting therefore whether it's his st job primary job nd job board simply a hobby  is benefited by a public accommodation doesn't make any difference the title three requirements for the association are all the same so my question is probably no the answer my question but when you looking at the issue of a burden that might be claimed is that in calculating that balance do you take into account i mean if he's a full time realtor that's might be one thing if he's just doing it once a year that does that make a difference in how they measure the burden and what is reasonable your honor respectfully the answer is no it should not make any difference and for these reasons number one they do not offer these classes just to people who make themselves full time realtors they offer them to anybody who is a licensed arizona realtor who requires the same twenty four hour credits that everyone else requires every two years in order to keep your license current so whether you're doing it full time one day a week you know an hour a week it doesn't matter you saw the same continuing education obligations and they're offering the same services to everybody in addition your honor if that were the test then you would simply have a real problem with the folks who are trying to break into the business it may be that mr tauscher is not a full time realtor now but he wants to be a full time realtor and one of the ways he wants to get there is by learning how to be a better realtor  courses that are offered by this organization and particularly through the interactive courses where he gets to go and as they advertise and market it he gets to go network with fellow real estate agents which is obviously important to building that business into potentially a full time occupation he gets to also learn from other people with experience in our local community about how they handle situations that may come up in his practice and therefore if you if you cut it off and say well it's one test for those people who really have a vested full time job interest in the service versus those who may be at the front end of that or you know maybe trying to break into that it be an impossible standard to apply in fact it would be unfair standard to apply because that would mean then that you have an undue burden that would defense it would particularly harm those people who are trying to break into the business your honor as you saw from the court's findings the court decisions actually below rested pages three hundred and forty five the court's original summary judgment decision and also in its denial of our motion for reconsideration on the finding that mr tauscher actively resisted and quote refused to discuss alternative auxilary honor he took the position that given the unique circumstances of this particular type of coursework and the way they had it set up the way they advertised it and the way that he learned and communicated that and so interpreter was an effective means of communication for him and that the few alternatives that they discussed with him were not effective communication alternatives so to suggest there is he offered that up at your end your honor exactly and so i that was my point exactly i don't need to belabor that that it was irrelevant it's irrelevant to this decision it wasn't going to be offered he didn't believe it was going to be effective and they would never have offered in the st place so it's completely irrelevant what they did discuss was an f m loop which is an amplification system one wears on their we're not going to work for someone who's profoundly deaf they discussed the liberating option again and he very carefully and professionally explain to them why liberating was not accept so standing here e that he is in fact the only effective means of communication for that particular type of coursework the interactive classroom yes your honor it is particularly because that sort of experience and of course the law requires that he be given an equal opportunity to gain the same benefits of the experience is being offered to non disabled individuals the experiences being offered includes interacting it includes asking live questions of a very skilled  and they didn't they were not concerned about they said that was enough to make it an undue burden so do you want discuss or explain what what factors we should consider small budget in that particular school that is not the situation here but if the parent company i mean that's their that's the way they were and they ran it but that doesn't mean that the parent company doesn't have excess funds of that  t is irrelevant they just look at the specific school well it in your honor here there's not a segregation there is not a school per se there is the phoenix association of realtors and one of the services they provide is the school but it's not segregated there was not evidence that it has its own separate budget that it's limited to siloed somehow i can't access other funds in fact your honor i think for the undue burden situation or question in this case the court need didn't have to go any further than looking at the actual testimony of the individual they identified as the person who could speak to them do burden which was the c e o miss year and she testified and your honor i would refer the court to her testimony  t this is excerpt of records seven to six through seven to eight and she specifically testified that even in two thousand and sixteen this is several years after mr tauscher had attempted to get services and as she was claiming that excess funds were declining that the organization still had over one hundred thousand dollars in reserve funds and is that the test because they also testified that the cost of the education program was in the  consistently during that period yes it is there anything that says a court should look at whether the service itself is in the red their educational service i don't know if there's anything that says is that  authority clearly says that you should examine the course have to examine the full financial resources and abilities and options available to the organization doesn't really tell us how to balance them at least the regulations i didn't see well iran i had it and with all due respect in this particular case i don't know that the court has to even get to the standard per se because michiru testified when i asked her could you have afforded the three hundred and sixty dollars for the three hour class that he applied for in two thousand and fourteen she said even then in two thousand and sixteen yes we could think that's the test just whether a company could have paid for it had the funds to pay for it or do you think the undue burden issue also within their control in many respects they had one thousand dollars members i think one thing we point on the record was they could have increased dues by a dollar a person in had three times what they needed for all twenty four dollars hours of mr interpreting services i mean there were many things they could do but they didn't need to do any of those things because the record made it clear they had these excess funds and they indicated look they wouldn't have gone into the red as an organization providing his communication services for many years in the future and that is presuming that any case that says that that's the standard i can all i sell is kendrick here which suggests that's not the stand so well what's your best case supporting entire set of resources that the organization has available to it at the time and doesn't focus simply on whether a particular program is in the red whether you're making more off of this particular program than you would  have to pay out in services and the example you're on and i know it's not it's not right on point but if if the association's argument holds well then a restaurant could say you know what we don't have to build that handicapped accessible ramp for people in wheelchairs because a ramp is always going to cost more then it costs or the they're going to pay for their meal right the steak of course and twenty dollars is never going to make back what this ramp is going to cost and that's not the test however the test is whether there's a true undue burden you are as i see my time is closing and i want to save a little bit for a but i hope i've answered your question the final point i  make your honour's we have suggested to the court that it would be appropriate to actually grant summary judgment in mr tauscher favor in reality the a t a i and the arizona act require an organization like the a public accommodation to actually offer some alternative that provides effective communication they didn't do that the only thing they've argued to you that might be of offer that would be some sort of a captioning issue certainly whether that would provide effective communication is highly disputed in the in the record but they didn't offer that and they said they would never offer it they made a decision it was too expensive so they failed they failed in their duty they can't establish that they met their duty to offer any form of appropriate accommodation and that's all i have yours i'll say my last minute for rebuttal thank you thank you thank you your honor smith please the court brian howey from far as in brady for defendant apple e phoenix o c a realtors i'll refer to them as part during the course of my argument your eyes i'd like to start with the interactive process requirement is a title three klein and the interactive process is untitled one will case you have this is the interactive process requirement applies in this kind of case your honor the two cases that we cited in our in our briefs ensign versus thomas in enriching  rd circuit that schneider vs shah which said that there was an obligation to engage in an interactive process here towards providing reasonable accommodations our contention is that under under the what's  argument as a matter of statutory interpretation because of that it's circuit kester so expressed some skepticism about that so what you're statutory interpretation argument that the interactive process applies in this kind of case i think i would refer to twenty eight a far thirty six point three zero three c one roman that to a public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication but the ultimate decision rests with the public accommodation that to me imposes on the public entity in this case par an obligation to engage in a discussion with the person with a disability but the obligation has to be necessarily mutual and in this case judge logan correctly ruled that mr tauscher came to par with an ultimatum and the ultimatum was i have a disability i want a sign language interpreter and you were obligated to give me the commendation of my choice now the way that the regulations are written par and that situation does not have to give the person with a disability the auxiliary  in his position that all those other options don't provide effective communication that was his position your honor but as the southern district of new york new york held in the howard vs u p s case the law doesn't require u provide the accommodation plaintiff subjectively believes best serves his needs mr tauscher testified in his deposition that he was fluent in english and that captioning worked for him watching videos he's well educated he has a college degree he has an a if you look at the regulations both thirty six point three zero three and thirty six three hundred and nine which applies specifically to an entity that provides an examination or a course you'll see that the types of auxiliary aides that are identified as providing effective communication in addition to a sign language interpreter include things like written materials and captioning type devices but you didn't offer the captioning devices y we did not offer the captioning device your honor and so the of these of the the accommodations you offered which ones do you believe would have been affected your own our position is that we never got to the point in the interactive process when we had the ability to offer additional alternatives and the reason was in mr tasha's position was at the outset i need a sign language interpreter and he never backed off that position if you look at his diet and you sent well here's some alternatives that those don't work for me and well he why it wasn't that i don't i disagree that he said that they don't work for him what he said was i would answer was i want to sign language interpreter it was it was a preference it wasn't that the context of this class and this communication meant that a sign language interpreter was the only way he could receive the information that's his argument today was not a jury question well in this case your honor the jury instruction that the court upheld in city of enriching understanding that that is title to case said that if if a plaintiff or a person with a disability refuses to consider any alternatives other then his his or her preferred form of accommodation that alone obviates the need for the public entity or par in this situation to present reasonable two those are pages from mr tasha's deposition and i think in that case what you'll see is that mr tauscher position however it's been articulated here today his position at the time was this is what i want you have to give it to me that's what he said to the a c r d there is on the civil rights division as they were required to give me a sign language interpreter in the regulations suggest pretty strongly based on the number of different types of auxiliary aides that are identified that include things like note i think it's possible your honor that no taking would have been would have been sufficient to howard versus u p s case which we cited in our briefs the very similar set of facts to this one and that case mr howard who was the plaintiff wanted to be a delivery driver with interpreter ironically enough mr howard was represented by the same council as in this case same expert that they used in this case said no we're not going to give you a sign language interpreter we will give you other forms of accommodation no takers we will give you the ability to talk to the instructor during breaks and ask questions which was one of the things that part had offered here in that case the southern district of new york granted summary judgment on the eighty eight claim for u p s and said  quoted before they don't have to give the accommodation that plane of subjectively believes that serves his needs and this case we never got to the point where we were able to talk about whether having providing written materials  having a note taker there with him we did talk about his ability to ask questions of the instructor during breaks other forms of captioning mr tasha's position was i want to sign language interpreter i know what i need i've been  been deaf for fifty years i know that i need an interpreter i know exactly what i need and i need an interpreter and the regulations don't allow a person with a disability to make an ultimatum of that sort i will agree that there are probably other factual cont in which this kind of issue could arise where it would have to be a sign language interpreter or nothing else the appendix c part thirty six dollars specifically addresses two of those scenarios one of them would be  medical advice and the need to be able to have exact know it's a specific communication with a medical professional and another would be financial advice but but they don't allow allow a person with a disability to dictate to a public entity like par that this is the only accommodation that will be acceptable assuming that we think that title three  doesn't have the same sort of interactive process back and forth that taiwan to do did har offer eight effective communication you were citing howard and if so what do you think was the communication that par offered that was effective because the the regulations indicate that the public accommodation has the ultimate responsibility regardless of tauscher admitted in his deposition in the cat the captioning works for him so obviously fluent in english and able to read captions we never got to the point where we actually offered cart or another form of accommodation i thought the the evidence showed that type of car program or application that she had done some google research on would be she had determined that would be too expensive but she never progressed further in her internal analysis and assessment of other accommodations again because m position was it doesn't really matter what else you present to me at the end of the day i know i'm going to need a sign language interpreter and so it's a little bit of a chicken and egg problem i don't disagree that title three imposes on an entity like part of the obligation to do offer an auxiliary aide that provides effective communication but where the person with a disability is saying well i know what i need and none of these other things are going to work for me and the regulations and the cases interpreted them say that ultimately it's the it's the entity's decision and and allow for a number of other forms of auxiliary aids that don't provide an equal experience for a person with a disability can't can you address whether here part was operating at a loss and kinda care the court evaluated the cost of the full time aide which was i think about two hundred and five dollars and the cost of the tuition and determined that the cost of the aid exceeded the cost of the jewish and and in light of the small operating profit that that center was operating under it would be an undue burden i think that's exactly a pleasurable to these facts where par as an entity is losing money they're in the red not just the class activity the whole organization is in a rip is in the red year after year after year and being asked to provide a sign language interpreter as that would probably range between one hundred and sixty three thousand three hundred for a full day course the need to have two a s l interpreters under the roberts case applied to these facts providing that form of accommodation would be an undue burden why isn't that a trick question it can be your honor except for the fact that i don't believe there's any dispute based on the part financial statements that the the operating income of car was in the red their argument is that while there are other funds that  if you have cash in the bank they could pay for the interpreter right so what is not what has not created your question you may well win the jury question why isn't really an issue that i think it doesn't here your honor only because they don't dispute that we were operating in the red they're focusing on a different line item of our financial statement which is what cash do we have on hand if they disputed that our accounting statements that our financial statements were were were inaccurate they were disputing the accuracy and saying actually you guys are using using creative bookkeeping and you're actually operating in the black not in the red then i agree that it would be a jury question that they don't really know you are you suggesting that that's a bright line rule that if you're operating in the red for that particular period on business they don't have to make the accommodation of the tuition and how the center itself is operating that in that case summary judgment is appropriate and that's exactly what we contend would be the correct result here even though judge logan didn't rule on this on the under the burden question  thank you judge could i didn't do a very good job of answering your question on the undue burden case law so i went back and looked at the brief quickly and i would simply invite your attention to pages twenty six and twenty seven of our reply brief where we cited a number of cases that explain the standards regarding the under the burden defense and particularly the uptake decision from this circuit as well as the i'm going to massacre this but resumed versus montgomery county cyril's versus johns hopkins hospital and of course the  roman statutory and regulatory provisions that we've provided there all of which indicate that the test cannot be the test that they are using here the are we in the red are we operating at a loss because that allows unfortunately that would allow people to use creative accounting to claim that they are operating currently at a loss and therefore they can't provide accommodations so that is not the test a couple of other quick points in rebuttal number one there was no ultimatum i would simply by the courts look at mr tauscher as letter from march st of two thousand and thirteen he didn't require that his choice only arbitrarily be honored he explained why a interpreter was necessary and why other means of communication would not be effective and one thing that he point on particular was a real time interpreter allows him to ask questions just like everybody else in the class gets to ask he doesn't have to try and write out notes stop everything get someone to read them he doesn't have to rely upon anything like that he can simply act like everyone else in the class and they market this class as beneficial for that point exactly finally i would simply ask the court to consider the fact that the organization never did engage in a real interactive process irrespective of what the law requires that interactive process to be and i'd encourage you to look at where they're quotes come from where they say they asked him to or they told him they were open to talking about other free or less costly alternatives those come in letters from counsel that they hired to defend them they come into letters and an e mail and every one of those communication starts off by saying we are not subject to the a and do not have to provide any accommodations to suggest then that some glib caviar at the end of a letter that says however even though we don't have to provide anything to you we're willing to discuss free or less costly alternatives cannot possibly meet the burden