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EEOC v. UPS Supply Chain Solutions, No. 08-56874 (9th Cir. Aug. 27, 2010); Lewallen v. City of Beaumont, No. 09-40826 (5th Cir. Aug. 23, 2010)

| Aug 26, 2010 | Daily Developments in EEO Law |

The EEOC reverses summary judgment in an ADA reasonable accommodation case in the Ninth Circuit, concerning ASL interpreters for the deaf. And cheers to a tough trial team in Texas who prevailed in a equal-protection sex discrimination case against a city police department – also winning the appeal, in an unpublished Fifth Circuit opinion – showing all that it takes to win justice in one of these cases.

EEOC v. UPS Supply Chain Solutions, No. 08-56874 (9th Cir. Aug. 27, 2010): The employee clerk in this case (Centeno) sought an American Sign Language (ASL) signer to attend group meetings and briefings for him (“weekly meetings, job training, and understanding the company’s sexual harassment policy”). Instead of a signer, the employer at first provided only written notes summarizing the meetings, which the employee found frustrating (his literacy in English was grade school level, and he only got the information after the meeting was already over). Some years later, they took the extra step of having an employee take “contemporaneous” notes during the meeting and showing them to Centeno during the meeting, but this proved also a limited method to get the information across. As Centeno gradually ceased attending the meetings out of frustration, the company began writing him up for absenteeism.

The Ninth Circuit, reversing summary judgment, holds that meeting attendance constitutes “benefits and privileges of employment,” even when those meetings have no bearing on an employee’s job performance. See 29 C.F.R. § 1630.2(o)(1)(iii). There was a genuine issue of material fact whether UBS knew that the note-making remedy was not fully successful.

“In a performance review dated August 5, 2001, Schulz recommended that Centeno ‘[t]ake an English writing class to improve his writing style.’ Centeno reminded his supervisors in writing, ‘I am not good writing I know I am bad level of English.’ Subsequent to the disciplinary action that UPS took in response to the May 2005 lunchroom incident, Chan and Nishimura should have been aware that Centeno was unable to understand many of the critical expressions contained in his written warning, even with the assistance of an English-language dictionary.”

There was also a genuine issue of material fact about whether the company entered into an interactive process with Centeno to provide an accommodation:

“Evidence in the record suggests that in determining whether to provide an ASL interpreter for weekly meetings, UPS did not consider the nature of the information being communicated in a particular meeting or the length of the meeting, but instead relied on relatively arbitrary considerations. Schulz testified that she decided to approve an interpreter for the monthly meetings but not for the weekly meetings because she ‘felt once a month was sufficient.’ A trier of fact could conclude that UPS refused to provide an interpreter for regular meetings that were less than two hours long because there was a two-hour minimum charge for ASL interpreter services. If UPS failed to consider whether the circumstances of a weekly meeting necessitated the use of an ASL interpreter, then the trier of fact could find that UPS failed to engage in the interactive process in good faith.”

As a kicker, the panel also finds that the failure to provide an ASL interpreter may have also constituted discrimination “in regard to . . . job training.” 42 U.S.C. § 12112(a).

For a remarkably similar case, also pursued by the EEOC, see EEOC v. Federal Express Corp., 513 F.3d 360 (4th Cir. 2008).

Lewallen v. City of Beaumont, No. 09-40826 (5th Cir. Aug. 23, 2010): The employee in this case – a female police officer who was passed over for a promotion to detective – won a jury verdict of $50,000 in past compensatory damages and $25,000 in future compensatory damages. She established at trial that the male candidate finalists were decisively inferior to her in their credentials, and that the decision-makers could not articulate another reason for picking the man.

In contrast to Title VII, which imputes liability of agents to the employer, an employee seeking relief against a governmental entity under § 1983 must establish that a governmental policy or custom was the “moving force” behind the discrimination. The panel opinion gives of sample of the kind of proof the plaintiff put on to establish this element:

“The jury heard unchallenged evidence that, in 1993, the chief of police-who none denied is a ‘policymaker’-received the findings of an extensive internal investigation which showed that approximately one-half of the female officers in the Department had reported experiencing sex discrimination. That report included, for example, details of a number of threats by male officers not to back up female officers in times of trouble, refusals by male officers to ride in squad cars with female officers, refusals by male officers to include female officers in briefings, incidents of male officers disrupting female officers while they were calling in reports, and even one occasion in which a male officer discharged his firearm at a firing range while a female officer was down range. The jury heard a number of women testify about the rampant sex discrimination in the Department, including evidence that women feared retaliation for complaining of such occurrences or voicing their concerns about them. . . . .

“[T]here is also specific record evidence of discrimination in the Department’s hiring practices that the jury could have found persuasive. One female officer recounted a situation in which she complained to the chief of police regarding sex discrimination as the basis of her being denied a position, adding that she never received a meaningful answer. Another female officer reported having received threatening phone calls after she registered the highest score on a written examination for promotion to Lieutenant. The chief of police at the time had knowledge that the male officers wanted this female officer to be denied the position of Lieutenant to facilitate promoting the male officer who had received the second highest score for the position. Even though that female officer was eventually promoted despite such sex-based obstructionism, the situation speaks to the insidious discrimination imbedded in the Department’s hiring practices. In addition, Lewallen proffered testimony of other female officers further describing the Department’s discriminatory hiring practices and its conscious refusal to take any action whatsoever to eliminate those practices.”

All of this for a comparatively modest $75,000 award (made more modest still when the panel knocked the award final down to $50,000). It is a measure (and tribute) to the tenacity of the lawyers that the district court awarded Lewallen $428,421.75 in attorneys fees, an award that survived appeal.

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