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EEOC v. The Picture People, Inc., No. 11-1306 (10th Cir. July 10, 2012); Bertsch v. Overstock.com, No. 11-1428 (10th Cir. July 10, 2012)

The Tenth Circuit issues two decisions today, both involving the EEOC - in different capacities. In the first, the court splits 2-1 on an ADA reasonable accommodation and retaliation case brought by the Commission itself, holding that a photography studio was not required to accommodate a deaf photographer by providing an ASL signer. In the second, in which the EEOC appeared as amicus, the court affirms summary judgment on a sex harassment claim but reverses on a retaliation claim.

EEOC v. The Picture People, Inc., No. 11-1306 (10th Cir. July 10, 2012): The panel majority describes claimant Jessica Chrysler's disability status -

"Employee is a congenitally and profoundly deaf individual who communicates with hearing individuals by writing notes, gesturing, pointing, and miming. She can also type, text message, and use body language. According to the EEOC, '[s]he also uses basic American Sign Language ('ASL') signs that most people can understand and speaks some words." Aplt. Br. 4. Employer maintains that Employee 'cannot read lips effectively, nor can she speak except for a few words.' Aplee. Br. 8. It also claims that Employee's written communication skills are poor and that she scored below average on vocational tests administered by EEOC's expert-Michael Newman. Aplt. App. 310a."

Hired as camera room photographer (a "performer"), Chrysler assisted in the studio during the holiday period in 2007. She was typically paired with another employee, but on a couple of occasions she worked on her own. "Employee communicated with subjects by writing notes, gesturing, and miming. Id. at 240a-47a. This was often difficult as photo subjects are usually young children. In order to sell photo packages, Employee had to write notes, gesture, or 'get somebody else that could do it more efficiently . . . .' Id. at 236a." Eventually, Chrysler was assigned nearly exclusively to the photo lab.

Her requests for an ASL signer were met only sporadically; her employment was delayed three weeks until she herself located an interpreter. She was also denied an ASL signer for a training session.

After the holiday season ended, Chrysler was counselled about her alleged performance deficiencies and also informed that she (and other employees) were having their hours cut. "[District Manager] Ms. Bryan also requested a meeting with Employee on January 9, 2008, to administer a counseling statement. The EEOC characterizes the notice as reprimanding Employee for the performance deficiencies, and for becoming 'angry' and 'threaten[ing] to bring a grievance . . . when [she] did not get her hours increased.'" While Chrysler formally remained on the schedule, she was never returned to work and was fired later in 2008. The EEOC commenced litigation on her behalf.

The panel majority affirms summary judgment on both an ADA reasonable accommodation claim and separate retaliation claim.

Regarding the ADA, the panel majority holds that Chrysler was not a "qualified person with a disability" because she could not perform the essential function of verbal communications -

"Employee is unable to fully perform three of the four duties of a performer. Although she can fully perform the lab function, her ability to (a) efficiently register and recruit customers, (b) instruct young children while taking their photos, and (c) sell photo packages by addressing customer critiques and concerns, is problematic, particularly given Employer's business model. Employer allows only 20 minutes for each Camera Room sitting-a relatively short period of time, especially when photographing young children."

While the studio had at least one other employee with a hearing disability, that performer was able to engage with customers more directly (she could speak and understand customers).

The panel majority further holds that an ASL interpreter was not a reasonable accommodation. The panel distinguishes several cases (EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 1111-13 (9th Cir. 2010); EEOC v. Federal Express Corp., 513 F.3d 360, 365, 373-74 (4th Cir. 2008); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1243-44 (10th Cir. 1999)) in which courts held that signers were a reasonable accommodation: "Employee's position as a performer required her to communicate extensively with customers and to conduct photo sessions with dispatch. Providing Employee with an ASL interpreter at staff meetings would not ameliorate her inability to interact verbally with customers-an essential function of the performer job."

The panel majority finally holds that there was no genuine issue of material fact regarding retaliation, finding that the employee's reduction in hours and eventual termination was warranted by non-discriminatory reasons (a slowdown in business and deficiencies in performance).

In dissent, Judge Holloway would have held that the EEOC presented a triable case on both claims. First, a jury could find that oral communications were not an essential function -

"The Employer offered two job descriptions in its materials supporting its motion for summary judgment, one for the position of 'performer' and one for the position of 'seasonal associate.' Both listed as job duties making customers feel welcome and comfortable and providing customers with a variety of distinct portraits. The Employer's witnesses gave similar descriptions of the job duties, such as: greet customers as they arrive and check them in at the front desk (intake); ascertain the kind of pictures the customer wants and take pictures that satisfy the customer, which includes communicating with the customer on desired poses (photography); develop pictures in the lab; and sell the customer a package of pictures (sales). Notably, none of these descriptions includes as a job duty a requirement of oral communication."

The record also contained evidence of shoots performed solo by Chrysler or as part of team that went efficiently, and apparently no evidence of co-workers or others complaining about her performance. "Her vocational rehabilitation counselor, Ms. Barbara Bryant, testified, based on her experience in working with the disabled, that deaf persons can perform a job calling for strong customer service skills and oral communication skills by using gestures, notes and so forth."

On the retaliation claim, the dissent concludes that there was direct evidence of a retaliatory motive sufficient to support the claim, "i.e., the fact that the Employer reprimanded Ms. Chrysler specifically for saying that she might pursue a remedy for the discriminatory treatment she had received. The fact that discipline was initiated because of protected activity, even if only partly because of that activity, is sufficient evidence for a jury to find retaliatory motive." It also finds evidence in the record that the proferred explanation was a pretext.

Bertsch v. Overstock.com, No. 11-1428 (10th Cir. July 10, 2012): Plaintiff Bertsch experienced difficulties with her co-worker, Mr. Latimer -

"In November 2002, Ms. Bertsch began work next to Dustin Latimer, a coworker supposedly 'notorious' for viewing sexually explicit videos at work, putting up a poster of a 'scantily clad' woman in his cubicle, and saying things like 'this department would run better if the males were doing the job.' Aplt. Br. 9. She alleges that his misogynistic comments were 'constant,' i.e., at least weekly. Aplt. App. 442. Another female employee testified that the remarks were 'daily, and sometimes hourly.' Id. at 838. Ms. Bertsch also asserted that Mr. Latimer engaged in demeaning conduct such as ridiculing her in meetings, treating her like a 'servant,' and refusing to look at her while they talked. Id. at 638, 361, 591."

The friction between the two co-workers peaked with an email exchange in February 2004:

"Mr. Latimer, apparently piqued by Ms. Bertsch's failure to issue a 'purchase order' promptly enough, sent an email, copying their supervisors and an outside vendor, which said: 'Hmm. No response. I guess we will just have to wait until Beth sees fit to send it.' Aplt. App. 587. The next morning Ms. Bertsch replied to Mr. Latimer and the supervisors: '[C]an we try to be a bit more professional about telling a vendor why a PO number has not been given yet. I found the previous response offensive.'"

The panel affirmed summary judgment on the harassment claim, holding that while the above-facts presented a genuine issue of material fact regarding pervasive harassment because of sex, harassment could not be imputed to the employer because it remedied the situation promptly after Ms. Bertsch complained by serving a written disciplinary notice on the alleged harasser.

The odd and disconcerting fact, though, is that Ms. Bertsch herself - who had (according to the summary judgment record) a sterling record with the employer - also received a disciplinary notice on the same day, stating that she too was supposedly "contribut[ing] to a hostile work environment." Ms. Bertsch also testified that on the day before she received her written notice, she was called in by a supervisor and told that "I was the problem and that I could either quit or be sent to the warehouse."

Three months later, she was terminated - supposedly for being too slow to handle inventory, though the termination letter used language like "[r]esistant," "difficult," "attitude has isolated her," "productivity suffers," "sarcastic," "creates disharmony," and "insubordinate comments."

Though the panel affirmed summary judgment on the harassment claim, it reverses on the retaliation claim.

"As [plaintiff] sees it, she complained of mistreatment, then ten days later was "shocked" to find herself 'singled out' for hostility, threatened with reassignment, and fired some three months after that. Id. at 217; Aplt. Br. 46. Overstock maintains that her attitude and poor performance (the email exchange being 'one instance that happened to be caught on paper') tell us all we need to know about her termination. Aplt. App. 316, 361.

"The problem with summary judgment here is that important facts remain in dispute. Did Ms. Bertsch actually inform her supervisors of Mr. Latimer's harassment, as she suggests, or did she say nothing of the sort, as Overstock claims? Compare id. at 468, 588, 613 (Bertsch) with 797-98 (Simon) and 747 (Popelka). Could a jury wonder why Ms. Bertsch was disciplined over the email exchange, even though Mr. Latimer was the one who in fact publicized their dispute? Was the threat of reassignment to the warehouse a sort of demotion, as she felt, or a sensible solution to the problem of co-worker squabbles, as Overstock claims? And was she sent or not? If not, what does that say about the claim by those who fired her that she caused tensions once she 'got' there?"

Accordingly, the retaliation claim was remanded for trial.

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