EEOC V Picture People, No. 11-1306 (10C) Reh'g Pet W Attchmts

No.
11-1306
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. THE PICTURE PEOPLE, INC., Defendant-Appellee.
On appeal from the United States District Court for the District of Colorado Hon. Philip A. Brimmer, U.S.D.J., presiding Civil Action No. 1:09-cv-02315
PETITION OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR PANEL REHEARING OR REHEARING EN BANC
P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel
SUSAN R. OXFORD Attorney Equal Employment Opportunity Commission 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791; Fax: (202) 663-7090 susan.oxford@eeoc.gov
TABLE OF CONTENTS page TABLE OF AUTHORITIES .................................................................................... ii SUGGESTION FOR REHEARING EN BANC ........................................................ 1 STATEMENT OF THE ISSUES............................................................................... 2 STATEMENT OF FACTS ........................................................................................3 Panel Decision......................................................................................................6 ARGUMENT .............................................................................................................8 CONCLUSION ........................................................................................................15 CERTIFICATE OF COMPLIANCE .......................................................................16 ATTACHMENTS Decision in Equal Employment Opportunity Commission v. The Picture People, Inc., No. 11-1306 (10th Cir. July 10, 2012) (slip op.) Excerpts from EEOCs Appeal Appendix: Job Description Performer (I-Apx.100-101) Emails preceding imposition of discipline (II-Apx.340) Performance Track (disciplinary notice) (II-Apx.341-342) Excerpts from Deposition of Melissa Krol (III-Apx.737-741) CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES Cases Pages
Bartee v. Michelin No. Am., 374 F.3d 906 (10th Cir. 2004) .........................1, 12, 14 Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007) (en banc) .......... 11 Bertsch v. Overstock.com, 684 F.3d 1023 (10th Cir. 2012) ...................................15 Davidson v. America Online, 337 F.3d 1179 (10th Cir. 2003) ......... 1, 9, 11, passim Kellogg v. Energy Safety Servs., 544 F.3d 1121 (10th Cir. 2008) ................1, 13, 14 Mason v. Avaya Commcns, Inc., 357 F.3d 1114 (10th Cir. 2004) .......................... 9 Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir. 1999) .............................15 Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995) .........................................15 Skerski v. Time Warner Cable, 257 F.3d 273 (3d Cir. 2001) .............1, 9, 10, 12, 14 Statutes 42 U.S.C. 12101(a)(5)-(8).....................................................................................8 42 U.S.C. 12101(b) ................................................................................................8 42 U.S.C. 12111(8) .................................................................................................8 42 U.S.C. 12112(a), (b) ...........................................................................................8 42 U.S.C. 12112(b)(5)(A) .......................................................................................9 42 U.S.C. 12112(b)(6) ..........................................................................................11 42 U.S.C. 12113(a) ...............................................................................................11
ii
Regulations 29 C.F.R. 1630.10 .................................................................................................11 29 C.F.R. 1630.15(c).............................................................................................11
iii
SUGGESTION FOR REHEARING EN BANC The decision in this case by a divided panel of this Court addresses a question of exceptional importance in the implementation of the Americans with Disabilities Acts (ADA) workplace protectionsthe distinction between a jobs essential functions and the means or manner by which such essential job functions may be performed. The panel decision ignores this core distinction and thereby undermines a primary purpose of the ADA. Congress enacted Title I of the ADA to ensure that persons with disabilities would be treated, not on the basis of their disability, but based on their ability to do a job. The panel here defined job function, not in terms of what the job exists to accomplish, but in terms of specific characteristics of the individual performing the job. In so doing, the panel focused the analysis on the employees disability rather than her ability to get the job done. This misinterpretation of essential job function conflicts with the ADAs plain language and Congressional intent as well as with the decisions of this Court and other circuits. See, e.g., Kellogg v. Energy Safety Servs., 544 F.3d 1121 (10th Cir. 2008); Bartee v. Michelin No. Am., 374 F.3d 906 (10th Cir. 2004); Davidson v. America Online, 337 F.3d 1179 (10th Cir. 2003); Skerski v. Time Warner Cable, 257 F.3d 273 (3d Cir. 2001). If left uncorrected, the decision will seriously undermine the very protections the ADA was enacted to provide.
The decision also fails to comport with this Courts well-established summary judgment standards because it ignores or fails to give due consideration to significant evidence that the employee was capable of performing and did, in fact, perform the essential functions of the job but was terminated in retaliation for having complained about discriminatory treatment. We urge this Court to grant panel rehearing or, alternatively, rehearing en banc to secure uniformity of this Courts decisions and to address this exceptionally important question of statutory interpretation under the ADA. STATEMENT OF THE ISSUES 1. Did the majority misconstrue the ADA and depart from this Courts precedent by ruling that verbal (i.e., oral) communication skills are an essential function of the job rather than simply the most common means of performing the job? 2. Where the summary judgment record contains evidence that Jessica Chrysler, who is deaf, successfully performed the job using non-oral means of communicating with customers and the only evidence suggesting otherwise is the testimony of witnesses who never observed Chrysler performing the job, and where the record includes direct evidence that Picture People discharged Chrysler in retaliation for having asserted her rights under the ADA, did the panel majority misapply the standards for summary judgment in deciding as a matter of law the fact-bound questions of whether Chrysler was qualified for the job of Performer
2
and whether she was disciplined and discharged in retaliation for having complained of discrimination? STATEMENT OF FACTS Picture Peoples Littleton portrait studio hired Jessica Chrysler in the fall of 2007, shortly before the start of the high-volume holiday season. Holloway, J., dissenting (Dis.) at 4. Picture People requires its Performers to be able to perform four categories of job duties, the first three of which require communicating with customers: customer intake; portrait photography; sales; and developing pictures. Id. Chrysler uses various techniques to communicate with non-deaf persons, including written notes, gestures, pantomime, facial expressions, simple and widely-understood sign language, and some spoken words. Chrysler also communicates by texting, email, and American Sign Language (ASL). Id. The manager who hired Chrysler had worked with a deaf employee at a different Picture People studio and believed Chrysler could perform the job. Id. at 4-5. Picture People specializes in portraits of young children. Dis. at 4. The day after Chrysler completed her initial training, Picture People assigned her to take the portrait of the Krol infant. Id. at 6 & n.4. Chrysler conducted the entire photo shoot by herself with no supervision. The Krols were very pleased with the session. Chrysler had suggested poses they had not thought of, and they bought more pictures than they had originally intended to buy. Chryslers manager described it
3
as a huge sale. The Krols later said their session with Chrysler did not take any longer than other Picture People portrait sessions they had. Id.; III-Apx.737-41.1 The following week, trainers from headquarters came to Littleton to provide advanced staff training. Dis. at 6. The Littleton studio manager had previously informed his district manager and Picture Peoples Human Resources (HR) office that Chrysler needed an ASL interpreter for training, id. at 5-6 & n.3, and Chrysler requested an interpreter for the advanced training, but none was provided. Id. at 7. (Picture People also refused Chryslers requests to provide ASL interpreters for mandatory staff meetings. Id. at 8.) The trainers noticed Chrysler struggling, without an interpreter, to understand their group instruction and decided Chrysler could not perform the job duties of a Performer. Without ever observing Chrysler working with customers, asking her how she would communicate with customers, or otherwise attempting to ascertain how she functioned in the job, the district manager ordered Chrysler reassigned to work exclusively in the lab. Id. at 7. Chrysler spent most of the next month developing pictures in the studios lab. During that time, she did 15 to 20 photo shoots, including a couple completely by herself. Picture People offered no evidence of any deficiencies in her
performance during any of these sessions. Dis. at 7. Several weeks after Chrysler took the Krol infants six-month pictures, the Krols returned and asked for
The pages from the EEOCs Appendix referenced in this petition are attached.
4
Chrysler specifically. Although Chrysler was working that day, Picture People told the Krols Chrysler was not available to photograph their infant. Id. at 6. After the holidays, the Littleton studio shifted to its standard post-holiday (reduced) staffing level. Dis. at 8-9. The first such schedule omitted Chrysler entirely. Chrysler complained to the new managerasking if her lack of hours was because she was deafand threatened to file a formal discrimination complaint. After promising Chrysler some hours in the near future, the studio manager emailed the district manager that Chrysler was questioning whether her omission from the schedule was because she is deaf and threatening discrimination. The district manager forwarded the email to HR. Id. at 9; IIApx.340. Within days, HR issued Chrysler a written reprimand for, among other things, having threatened to bring a grievance against the company when she did not get her hours increased. Dis. at 10; II-Apx.341. This was Chryslers first disciplinary action, but it was labeled a final warning and it advised Chrysler she could be terminated if she failed to correct these behavior deficiencies. Dis. at 10; II-Apx.342. Chrysler was never again scheduled to work, although she
contacted the studio repeatedly over the next ten months about being scheduled. Picture People officially terminated her employment in October 2008. Id. at 10-11. The district court granted Picture People summary judgment. The court reasoned that Chrysler was not qualified for the job because she could not
5
perform the essential job function of verbal communication and that the EEOCs evidence was insufficient as a matter of law to demonstrate that Picture Peoples proffered reasons were a pretext for retaliation. R.51 at 10-12, 14-16. Panel Decision A divided panel of this Court affirmed. The majority ruled that the ability to communicate verbally (i.e., orally) with customers is an essential function of the performer position that Chrysler could not perform, even with accommodation, and that requiring Picture People to eliminate this function cannot be a reasonable accommodation required under the ADA. Slip op. (Maj.) at 7-11. The majority accepted Picture Peoples view that using written notes and gestures in the Camera Room is simply impractical due to the short attention span of most Picture People subjects (children under the age of five), the interruption to the flow of the photo shoot; . . . the inability to establish rapport with the parent and child and the quick 20-minute duration of each Camera Room sitting. Id. at 8-9. The court stated that nothing in the record suggests that gestures,
pantomime, and written communication are similarly effective and efficient for the tasks involving customer communication. Id. at 10. The majority held the EEOCs termination and retaliation claims failed on the same basis, finding no prima facie case or evidence of pretext because, in the majoritys view, Picture People correctly concluded Chrysler could not perform an
6
essential job function, and no direct evidence of retaliation. Maj. at 13-16, 21-23. The majority ruled the ADA did not require providing ASL interpreters for staff meetings because doing so would not ameliorate [Chryslers] inability to interact verbally with customersan essential function of the performer job. Id. at 12. Judge Holloway, in dissent, said he would have reinstated the Commissions claims of discrimination and retaliation. Judge Holloway reasoned that the
majority, by ignoring the EEOCs evidence, reached the surreal conclusion that Ms. Chrysler is unable, as a matter of law, to perform the tasks that she had completed successfully. Dis. at 22. Judge Holloway further noted that whether an employee or job applicant is otherwise qualified under the ADA is a factual question for the jury; that Picture Peoples own job descriptions listed verbal communication as a job qualification, not a job duty; and that a jury could determine that Chrysler could communicate effectively and efficiently using alternative (non-oral) means of communication. Id. at 13-19. Judge Holloway found the EEOCs retaliation claim even stronger than [the] claim of discrimination. Dis. at 19. Judge Holloway stated that the majority ignored the EEOCs direct evidence of Picture Peoples retaliatory motive, including the statement in the disciplinary notice itself that Picture People was disciplining Chrysler, in part, for questioning whether her hours were cut because she is deaf and for threatening to pursue a claim of discrimination. Id. at 19-22.
7
ARGUMENT 1. The majoritys ruling that oral communication is an essential job function
of a Performer conflicts with the ADAs language and legislative history. The majoritys flawed analysis on this question of essential job function also conflicts with this Courts decisions in Davidson, Bartee, and Kellogg and the Third Circuits decision in Skerski. The majoritys ruling will thwart the ADAs workplace protections by excluding whole categories of persons with disabilities from coverage under the ADA simply because the employer decrees that a jobs essential functions must be performed in a certain manner, irrespective of whether the employers desired objectives could be achieved in other, reasonable ways. This is precisely the type of wrong Congress enacted the ADA to correct. Congress enacted the ADA to give persons with disabilities, among other things, equal access to job opportunities when they can perform the job despite their disability. See 42 U.S.C. 12101(a)(5)-(8), (b). To this end, Congress limited the ADAs protections against workplace discrimination to qualified individuals, defined as persons who, with or without reasonable accommodation, can perform the essential functions of the job they hold or desire. See 42 U.S.C. 12111(8), 12112(a), (b) (emphasis added). If a reasonable accommodation will enable a disabled worker to perform a jobs essential functions, the ADA requires an employer to provide the accommodation (as long as doing so will not impose
8
undue hardship on the operation of the employers business).
42 U.S.C.
12112(b)(5)(A). Employers need not eliminate or waive a job function that is essential, however. Mason v. Avaya Commcns, Inc., 357 F.3d 1114, 1122-23 (10th Cir. 2004). If no reasonable accommodation will enable a person with a disability to perform the jobs essential functions, the person is not qualified under the ADA and cannot invoke the ADAs protections. See id. at 1124-25. Since coverage under the ADA depends on an individuals ability to perform a jobs essential functions, it is crucial that courts correctly determine whether something is a job function and, if so, whether that function is essential. This is a factual inquiry resolved through traditional methods of proof, Davidson, 337 F.3d at 1189, 1191, that focuses on the [employers] desired result rather than the means of accomplishing it. Skerski, 257 F.3d at 280-81 (quoting
comments of Rep. Fish, published at 136 Cong.Rec. 11,451 (1990)). For example, one can readily conclude that speaking is an essential job function for an actor with a speaking part in a play, because speaking is the result the employer seeks. Likewise, hearing would be an essential function for an acting coach hired to critique actors as they deliver their lines, since the acting coach could critique the delivery only by hearing the actors speak. Because no reasonable accommodation would enable someone who cannot speak or hear to perform the essential functions of delivering lines in a play or critiquing their
9
delivery, a court could find as a matter of law that someone who cannot speak or hear would not be qualified for these jobs under the ADA. If, on the other hand, a theater sought to hire an usher to guide patrons to their seats, the theater could require prospective employees to have sufficient communication skills to provide proper assistance to customers, but the essential job functions would be escorting and providing directions, not oral communication, per se. See Skerski, 257 F.3d at 280-81 (listing other examples from ADA legislative history). Oral communication, in this instance, would
merely be a means of accomplishing the end result rather than the end result itself. The majority erroneously treated the job of Performer as if it were like the job of actor or acting coach rather than like the job of usher. Performers must communicate with customers to verify information, to ascertain the types of portraits desired, to direct photo shoots, and to sell portrait packages, and most Performers accomplish this communication orally. Oral communication is not an essential job function, however, because speaking and hearing are not the companys desired result per se, but are simply a means of achieving the companys desired results of quality portraits and high sales. Indeed, Picture People recognizes this distinction in its formal job description, describing a Performers job duties as including [m]akes customers feel welcome, [a]ssists customers by scheduling appointments, providing . . . information, and answering
10
questions, and [p]rovides customers with a variety of distinct portraits. In contrast, the same job description lists strong verbal communication skills as a job qualification rather than a job duty. I-Apx.100-01; see Dis. at 13. The distinction between job duties and job qualifications is not, as the majority claims, a very thin reed, understandably not grasped by the parties. Maj. at 18. The distinction is significant, as this Court recognized in Davidson, see 337 F.3d at 1191-92, and the EEOC argued this distinction here in its opening (at 23-24, 28-30) and reply (at 4-5) briefs. If oral communication is determined to be an essential job function for a particular job, a deaf individual like Chrysler, who cannot communicate orally, would not be covered under the ADA for purposes of challenging her dismissal from that job. If, on the other hand, oral communication is a qualification standard, an entirely different analysis, and possible result, would obtain. It is unlawful under the ADA for an employer to use a qualification standard to screen out a person with a disability based on the disability unless the employer shows the job requirement is job-related for the position in question and consistent with business necessity and such performance cannot be accomplished by reasonable accommodation. 42 U.S.C. 12112(b)(6), Under this analysis,
12113(a); see also 29 C.F.R. 1630.10, 1630.15(c).
Chrysler would be covered under the statute, and the burden would fall on Picture People to establish this defense, a showing not easily met. See Bates v. United
11
Parcel Serv., Inc., 511 F.3d 974, 990 (9th Cir. 2007) (en banc) (business necessity standard is quite high, and is not to be confused with mere expediency). Certainly, Picture People is entitled to establish standards for employee performance of the tasks involved in producing and selling family portraits, and it was entitled to require Chrysler to meet its legitimate job performance standards. But requiring employees to satisfy performance standards does not convert either the performance standard or the companys desired manner of performance (i.e., here, oral communication) into an essential function of the job. The majoritys misapplication of essential job function conflicts directly with the analysis of this Court and the Third Circuit properly rejecting employer efforts to exclude as not qualified under the ADA disabled employees who used alternate means to accomplish their employers desired end results. See, e.g., Bartee, 374 F.3d at 914-15; Davidson, 337 F.3d at 1191; Skerski, 257 F.3d at 279-283. 2. In addition to applying the wrong legal standard under the ADA, the
majority failed to comport with well-settled standards governing summary judgment when it ignored EEOCs evidence and decidedas a matter of law disputed factual questions that are the proper province of the jury. The majority found Chrysler unqualified on the ground that she cannot fully perform three of the four main duties of a performer. Maj. at 9. This factual finding rests almost entirely on the testimony of three Picture People witnesses who never observed
12
Chrysler interacting with customers nor asked her how she would do so. See Dis. at 7-8 & n.5. A jury could reasonably conclude that these witnesses based their opinions solely on the fact that Chrysler is deaf and their unsupported assumption she cannot do the jobexactly the sort of stereotype the ADA was enacted to prevent. The EEOC, in contrast, offered evidence that Chrysler was able toand didperform the various job functions a number of times using non-oral means of communication, and there is no evidence Chrysler failed, in any of these instances, to meet Picture Peoples standards for quality and efficiency. See Dis. at 14-16. Indeed, the Krols described their experience with Chrysler as highly favorable: they purchased more pictures than they had originally intended and said the session took no longer than any of their other Picture People sessions. Dis. at 6. Chrysler testified that even after the district manager relegated her to the lab, she conducted another fifteen to twenty photo sessions, some completely by herself, and there is no evidence that any customer complained about the quality of her work or that Chrysler failed to conduct these sessions within the companys twenty minute goal. Id. at 7, 14-15 & n.10. The record also shows Picture People permitted another deaf employee, Wendy Dukes, to perform the job despite having no hearing and only limited speaking ability, id. at 4-5, evidence from which a jury could find Picture People made exceptions to its requirement of strong verbal communication skills. Id. at 15-16; see, e.g., Kellogg, 544 F.3d at 1127-28.
13
The majoritys explanation for discounting this evidencethat it does not reveal a genuine issue of material fact that would require submission to a jury, Maj. at 18is plainly incorrect. The panel wrongly decided disputed facts that properly should go to a jury, in contravention of this Courts standards for summary judgment and Davidson, Kellogg, Bartee, and Skerski. See Dis. at 14-19 (citing, inter alia, Davidson, 337 F.3d at 1189, 1191-92 (jury must decide whether prerequisite of voicephone experience is justified); Kellogg, 544 F.3d at 1127-28 (jury must decide if employers claimed job requirements are essential functions of the job); Bartee, 374 F.3d at 914-15 (affirming jury finding that extensive walking and twelve hour shifts not essential job functions); Skerski, 257 F.3d at 280-283 (jury must decide whether climbing is essential function)). Likewise, the majority improperly discounted the EEOCs direct evidence of retaliation and departed sharply from prior decisions of this Court when it ruled that no jury could infer a retaliatory motive for the discipline Picture People imposed on Chrysler, even though the disciplinary action occurred immediately after Chrysler questioned whether the elimination of her hours was because she is deaf. Indeed, the cause-and-effect between Chryslers complaint and the
companys discipline a few days later is evident not only from the email trail leading up to the disciplinary action (II-Apx.340), but from the face of the disciplinary notice itself. See Dis. at 19 & n.12; II-Apx.341. When important
14
facts [in a retaliation claim] remain in dispute, summary judgment is inappropriate. Bertsch v. Overstock.com, 684 F.3d 1023, 1028-29 (10th Cir. 2012). In particular, this Court has long held that where the factual dispute concerns the employers motive for an adverse employment action, direct evidence of retaliatory motive is sufficient for a jury to find pretext in a retaliation claim, even where the employer offers additional, non-retaliatory reasons for the adverse employment action. See, e.g., Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 551 (10th Cir. 1999) (jury entitled to reject as not credible employers numerous grounds for terminating plaintiffs employment where suspension and termination letters and timing of these actions provide direct evidence of retaliatory animus); Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995) (where plaintiff offers direct evidence of illegal motive, trier of fact must decide which story to believe). CONCLUSION The EEOC urges the panel, or this Court en banc, to rehear this ADA question of exceptional importance to ensure uniformity of this Courts decisions. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel /s/ Susan R. Oxford SUSAN R. OXFORD, Attorney Equal Employment Opportunity Commn 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791; Fax: (202) 663-7090 susan.oxford@eeoc.gov
15
CERTIFICATE OF COMPLIANCE The EEOCs rehearing petition complies with the requirements of Fed. R. App. P. 35(b)(2) because it is not longer than 15 pages, excluding the parts of the petition exempted by Fed. R. App. P. 32. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point.
/s/ Susan R. Oxford
Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: August 24, 2012
16
FILED
Appellate Case: 11-1306 Document: 01018875527 United States Court of Appeals Date Filed: 07/10/2012 Circuit 1 Tenth Page:
July 10, 2012

PUBLISH
Elisabeth A. Shumaker Clerk of Court
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, v. THE PICTURE PEOPLE, INC., Defendant - Appellee. -----------------UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF LAW CIVIL RIGHTS OF PERSONS WITH DISABILITIES CLINIC; NATIONAL ASSOCIATION OF THE DEAF, Amici Curiae. No. 11-1306
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:09-CV-02315-PAB-CBS)
Susan Oxford, (P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel and Lorraine C. Davis, Assistant General Counsel of the Equal Employment Opportunity Commission, on the briefs), Washington, D.C., for Plaintiff - Appellant. Merrily Archer of Hall & Evans, L.L.C., Denver, Colorado, for Defendant -
Appellate Case: 11-1306
Document: 01018875527
Date Filed: 07/10/2012
Page: 2
Appellee. Marc Charmatz, Adjunct Professor of Civil Rights of Persons with Disabilities Clinic, University of Maryland Francis King Carey School of Law, Baltimore, Maryland; Marc Charmatz and Debra Patkin of National Association of the Deaf, Silver Spring, Maryland, on the brief, for Amici Curiae.
Before BRISCOE, Chief Judge, HOLLOWAY, and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Plaintiff-Appellant, Equal Employment Opportunity Commission (EEOC), on behalf of Jessica Chrysler (Employee), appeals from the district courts grant of summary judgment in favor of Defendant-Appellee, The Picture People (Employer). See Order Granting Summary Judgment, EEOC v. Picture People, Inc., No. 09-cv-02315-PAB-CBS, 2011 WL 1754522 (D. Colo. May 9, 2011) (hereinafter Order). The district court granted summary judgment on the basis that Employee could not establish an essential element of her case, that she was qualifiedwith or without accommodationto perform an essential function of her job as a performer in Employers store. Id. at *3-*5. It also concluded that Employees retaliation claim failed because she could not perform an essential function of the job, and that she offered no evidence that Employers legitimate, non-discriminatory reasons were pretextual. Id. at *7-*8. We have jurisdiction pursuant to 28 U.S.C. 1291, and affirm.
-2-
Document: 01018875527
Page: 3
Background 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 Employees written communication skills are poor and that she scored below average on vocational tests administered by EEOCs expertMichael Newman. Aplt. App. 310a. On October 23, 2007, Employer hired Employee to work in its Littleton, Colorado store as a performer. Id. at 388a. Employees interview occurred in writing because she was not able to meaningfully participate in a group interview with four other prospective employees. Id. at 311a-14a, 458a. Performers have four areas of responsibility: customer intake, sales, portrait photography, and laboratory duties. Id. at 100a-01a. During peak (holiday) periods, the employer hires seasonal performers who are scheduled to work in one of the four zones of responsibility listed above. Aplee. Br. 7-8; Aplt. App. 98a, 207a. Arnold Aguilar, Employers studio manager, hired Employee to work primarily in the camera room doing photography. Aplee Br. 7-8. During non-peak periods, Employer schedules only one manager and one performer to work at a time,
-3-
Document: 01018875527
Page: 4
termed 2-2 staff coverage. Id. at 8; Aplt. App. 337a. When 2-2 staff coverage is used, each Performer must be able to perform all four essential functions of the Performer job . . . . Aplee Br. at 8; Aplt. App. 337a; Order at *1. Employee requested an ASL interpreter for her three days of orientation training. Order at *1. Employer was unable to supply an interpreter, and Employees start date was delayed by three weeks. Id.; Aplt. Br. 5. Eventually, Employee secured an interpreter through the Colorado Division of Vocational Rehabilitation (DVR), which had been assisting with her job search. Order at *1. Employee had the opportunity to shoot photographs on 15-20 occasions with a hearing performer; she attempted to conduct a shoot by herself on a couple of occasions. Aplt. App. 247a. 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. In November 2007, Employer dispatched Master Photographer Libby Johnston to the Littleton store to improve photography quality and sales in anticipation of the holidays. Order at *2. Ms. Johnston provided a training session. The EEOC maintains that Employee requested an ASL interpreter, but none was provided. Aplt. Br. 7. At any rate, Ms. Johnston found [Employees]
-4-
Document: 01018875527
Page: 5
written communications awkward, cumbersome, and impractical . . . . Aplee. Br. 17; Aplt. App. 164a. She telephoned the District Manager, Candi Bryan; they conferred and recommended that Employee be reassigned exclusively to the photo lab. Order at *2. Thereafter, Employee was assigned almost exclusively to the lab. Id. After the 2007 holiday season, Employer instructed the local acting studio manager to cut the hours of or terminate seasonal performers. Id. Employee complained about her hours, and management explained in writing that all performers hours had been cut. Aplt. App. 336a-39a. On December 29, 2007, management notified Ms. Bryan that Employees performance in the lab was deterioratingEmployee was coloring with pencils instead of working, refusing to take legally required rest breaks, and demanding hours with threats, when all Performers hours were cut. Id. at 340a. With the assistance of the human resources department, Ms. Bryan prepared a Performance Track Counseling statement to put Employee on notice of performance problems. Id. at 341a-42a. 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. Aplt. Br. 10-11; Aplt. App. 341a-42a. After the 2007 holiday season, Employee remained on the schedule as an
-5-
Document: 01018875527
Page: 6
employee, but was not scheduled to work. Order at *2. Employer officially terminated Employee in October 2008. Aplt. Br. 15. In September 2009, the EEOC filed this action alleging that Employer violated the Americans With Disabilities Act (ADA), 42 U.S.C. 12101. Aplt. App. 7a-18a. After discovery, Employer moved for summary judgment on all claims, and the EEOC moved for partial summary judgment on four of Employers affirmative defenses. On May 9, 2011, the district court granted Employers motion to withdraw its affirmative defenses, ruled the EEOCs motion moot, and granted Employers motion for summary judgment. See Order. This appeal followed.
Discussion We review the district courts grant of summary judgment de novo. Fowler v. United States, 647 F.3d 1232, 1237 (10th Cir. 2011). A prima facie case of disability discrimination under the ADA requires that the Employee (1) be a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employer because of that disability. See EEOC v. C.R. England, Inc., 644 F.3d 1028, 103738 (10th Cir. 2011). The parties agree that Employee was disabled within the meaning of the
-6-
Document: 01018875527
Page: 7
ADA. See Order at *1. Therefore, we start with the second part of the test. I. Was Employee Qualified for the Performer Position? Under the ADA, it is unlawful for an employer to use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity . . . . 42 U.S.C. 12112(b)(6); 29 C.F.R. 1630.15(b)(1). An employer must make reasonable accommodations for an otherwise qualified individual unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business . . . . 42 U.S.C. 12112(b)(5)(A); 29 C.F.R. 1630.15(d). A. Are Verbal Communication Skills an Essential Function of the Performer Position? Employer maintains that strong verbal communication skills are an essential function of the performer position. Whether such skills are an essential function depends in part upon whether Employer actually requires all employees in the particular position to satisfy the alleged job-related requirement. Hennagir v. Utah Dept of Corr., 587 F.3d 1255, 1262 (10th Cir. 2009). If so, the next inquiry is whether verbal communication skills are fundamental to the performer position. Factors to consider are:
-7-
Document: 01018875527
Page: 8
(I) (ii)
The employers judgment as to which functions are essential; Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs.
Id.; 29 C.F.R. 1630.2(n)(3). The essential function analysis is not intended to second guess the employer or to require [it] to lower company standards . . . . Provided that any necessary job specification is job-related, uniformly enforced, and consistent with business necessity, the employer has a right to establish what a job is and what is required to perform it. Hennagir, 587 F.3d at 1262 (internal quotations omitted); cf. Davidson v. Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003) (stating that evidence of what an employer thinks is an essential job function is important, but not conclusive). Using the criteria listed above, verbal communication skills are an essential function of the performer position. Employer explains that a performer must be able to verbally communicate with customers (many of whom are children), Aplt. App. 53a, and it lists [s]trong verbal communication skills and [s]trong customer service skills as job qualifications for the performer position. Aplt. App. 98a-99a, 155a-56a. According to Employer, substituting written notes, gestures, and pointing for fast, efficient verbal cuing in the Camera Room is
-8-
Document: 01018875527
Page: 9
simply impractical in light of (a) the short attention span of most Picture People subjects . . . ; (b) the interruption to the flow of the photo shoot; (c) the inability to establish rapport with the parent and child and finally, (d) the quick 20-minute duration of each Camera Room sitting[.] Aplee. Br. 16. 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 Employers business model. Employer allows only 20 minutes for each Camera Room sittinga relatively short period of time, especially when photographing young children. Aplt. App. 53a, 172a. The only evidence of a verbally impaired employee in the performer position is not really comparable. Ms. Wendy Dukea former employee is also hearing impaired, but Ms. Duke is able to speak and can effectively read lips. Id. at 169a. Though the EEOC claims that a jury could find that the differences between Ms. Duke and Employee were not as significant as urged, the EEOC does not dispute that Ms. Duke could read lips and speak and that Employee does very little of either. Order at *5. Furthermore, when 2-2 staffing is employed during most of the year, Employee is unable to fully perform three of the four main duties of a performer, while Ms. Duke was able to converse with customers while
-9-
Document: 01018875527
Page: 10
selling photos, id. at 172a, and while taking pictures, id. at 173a (Every time I go into the camera shoot I use my voice.). Though the EEOC maintains that Employee could communicate non-verbally, nothing suggests that gestures, pantomime, and written communication are similarly effective and efficient for these tasks. When only one other staff member is present, it simply is not feasible to delegate all of these duties. Therefore, based on the factors outlined in 29 C.F.R. 1630.2(n)(3), we must conclude that verbal communication is an essential function of the performer position. B. Were Reasonable Accommodations Available? If an employee is unable to perform an essential function, the next inquiry is whether the employee could perform this job with reasonable accommodations. See Davidson, 337 F.3d at 1192. Reasonable accommodations are defined as [m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position or [m]odifications or adjustments that enable a covered entitys employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 29 C.F.R. 1630.2(o)(1)(ii)-(iii). The EEOC first argues that Employer was required to modify how Employee worked as a performer to allow her to communicate with customers
- 10 -
Document: 01018875527
Page: 11
using non-verbal means of communication. Aplt. Br. 32-33. It is axiomatic, however, that an employer is not required to relieve an employee of an essential job function. See Mason v. Avaya Commcns, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004) ([A]n employees request to be relieved from an essential function of her position is not, as a matter of law, a reasonable or even plausible accommodation.); Hennagir, 587 F.3d at 1264-65. Given that verbal communication is an essential job function, requiring Employer to eliminate this function cannot be a reasonable accommodation required under the ADA. Next, the EEOC argues that Employer was required to provide ASL interpreters at staff meetings and training sessions. Aplt. Br. 34-35; Aplt. Rep. Br. 21-27; 42 U.S.C. 12111(9)(B). The EEOC relies upon cases in which a court held that an employer was required to provide an ASL interpreter for staff meetings. Those cases are readily distinguishable. In EEOC v. UPS Supply Chain Solutions, the Ninth Circuit reversed summary judgment, finding a genuine issue of fact as to whether written agendas and outlines were a sufficient accommodation at staff meetings and training sessions, or whether an ASL interpreter was required. 620 F.3d 1103, 1111-13 (9th Cir. 2010). In that case, however, it was undisputed that the employee was able to complete his job duties [in the accounts payable division] without the assistance of an ASL interpreter. Id. at 1105-06. Similarly, in EEOC v. Federal Express Corp., the Fourth Circuit upheld a jurys award for punitive damages when FedEx failed to
- 11 -
Document: 01018875527
Page: 12
provide ASL interpreters at mandatory meetings and training sessions. 513 F.3d 360, 365, 373-74 (4th Cir. 2008). The employee involved in the case was a package handler whose duties included sorting, scanning, and stacking packages and letters . . . . Id. at 365. Again, the employee did not need or request any accommodations with respect to the routine handling of packages . . . . Id. Finally, in EEOC v. Wal-Mart Stores, Inc., this court upheld an award of punitive damages when the employee was refused access to ASL interpreters for meetings and training sessions and then fired when he failed to attend without an interpreter. 187 F.3d 1241, 1243-44 (10th Cir. 1999). In that case, the employee worked in the receiving department where his responsibilities included scanning and marking labels. Id. at 1243. Again, there is nothing to indicate that the employee needed accommodation to perform the essential functions of his job. This case is different. Employees 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 customersan essential function of the performer job. This difficulty would preclude Employer from scheduling her during non-peak periods with 2-2 staffing. No reasonable accommodation has been suggested that would allow Employee to perform her job given these constraints.
- 12 -
Document: 01018875527
Page: 13
II.
Whether Picture People Discriminated Against Chrysler and Terminated Her in Violation of the ADA The district court correctly granted summary judgment on the unlawful
termination claim because Employee failed to present facts showing that she was qualified for the performer job. In order to establish a prima facie case of discrimination under the ADA, a showing that the employee was qualified is necessary before proceeding to the third inquiry. See Mauerhan v. Wagner Corp., 649 F.3d 1180, 1184-85 (10th Cir. 2011); Order at *7. III. Whether Picture People Retaliated Against Chrysler in Violation of the ADA A prima facie case of retaliation under the ADA requires: (1) that [an employee] engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action. Hennagir, 587 F.3d at 1265; 42 U.S.C. 12203. If a plaintiff establishes these factors, the employer has the burden of showing it had a legitimate, nondiscriminatory reason for the adverse action. Hennagir, 587 F.3d at 1265. If the employer can do so, the burden shifts back to the plaintiff to prove pretext, id., which requires a showing that the proffered non-discriminatory reason is unworthy of belief, Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010). We assume, as did the district court, that disciplining Employee and
- 13 -
Document: 01018875527
Page: 14
eliminating her from the work schedule were materially adverse actions. Order at *7. We further assume that the adverse actions were related to the protected activity; the January 2008 Performance Track Counseling statement indicated that Employee announced her intention to bring a grievance against Employer if her hours were not increased. Aplt. App. 341a-42a. Still, Employer presented evidence supporting nondiscriminatory reasons for the adverse actions. Order at *7. Employer states that the reduction of work hours following the holiday [p]eak occurs as a normal byproduct of [its] normal retail business cycle, and affected all Performers. Aplee. Br. 39. It further claims that Employees inability to perform all four essential job functions precluded her from being scheduled after the holidays due to 2-2 staffing, id., and this is documented in handwritten notes between Employee and Ms. Doyle, the acting studio manager. Aplt App. 337a-38a. Employer also presented evidence that Employee was counseled because she was coloring with crayons in the lab, letting other Performers handle their own lab work, and refusing to take breaks according to company policy. See Aplt. App. 341a-42a. Employee conceded the alleged infractions. Id. at 343a (I do the drawings when Im waiting for upload [sic] to finish . . . .), 350a (I did not color when there was something for me to do . . . . I am not the only one who does this.). Given evidence of legitimate, nondiscriminatory reasons for the adverse actions, the burden shifts to the EEOC to establish pretext. To raise a fact issue
- 14 -
Document: 01018875527
Page: 15
of pretext, a plaintiff must present evidence of temporal proximity plus circumstantial evidence of retaliatory motive. This court has stated, a plaintiff can demonstrate pretext by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers reasons for its action, which a reasonable fact finder could rationally find unworthy of credence. Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1104 (10th Cir. 2005), overruled on other grounds as recognized in Law Co., Inc. v. Mohawk Const. and Supply Co., 577 F.3d 1164, 1170 (10th Cir. 2009). The EEOC argues that other similarly situated employees engaged in the same behavior for which Employee was reprimanded, but they were never counseled. Aplt. Br. 55-56. As the district court noted, however, evidence of the infractions of other employees was never disclosed by the EEOC. See Order at *8. Furthermore, ample evidence in the record suggests that every employees hours were affected after the peak holiday period, Aplt. App. 83a, 337a, 338a, 340a, 342a, and that scheduling is different during peak and non-peak periods, the latter requiring employees to perform work in all four listed zones, id. at 206a-09a. As noted, Ms. Chrysler was not qualified to perform work in all four zones with or without reasonable accommodation. Therefore, the evidence in the record comports with Employers reasons for not scheduling, and ultimately terminating, Employee. See Pinkerton v. Colo. Dep. of Transp., 563 F.3d 1052, 1065-66 (10th Cir. 2009) (stating that, when supervisors comments about problems with employee are consistent with the listed reasons for
- 15 -
Document: 01018875527
Page: 16
termination, the court is in no position to state that the numerous documented failures by the [employee] were not serious enough to justify termination); see also Jones v. Barnhart, 349 F.3d 1260, 1267 (10th Cir. 2003) (a court should not act as a super personnel department that second guesses employers business judgments (internal quotations omitted)). IV. The Dissent The dissent contends that both this court and the district court misapply the summary judgment standard by failing to view the evidence in the light most favorable to the non-movant, and by ignoring direct evidence of retaliatory motive. These contentions are without merit. The dissent argues that much of the evidence favoring Employer as the moving party must be disregarded because the jury is not required to believe it. In Reeves v. Sanderson Plumbling Prods., Inc., 530 U.S. 133 (2000), the Court explained that in deciding a Fed. R. Civ. P. 50 motion for judgment as a matter of law, a court must consider all of the evidence, just as it must consider the record as a whole when deciding a Fed. R. Civ. P. 56 motion for summary judgment. Id. at 151. The Court then explained that a court must review the evidence in the light most favorable to the non-movant, not decide credibility issues or weigh the evidence, because the latter two are jury functions. Id. The Court then stated: Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. See Wright & Miller 299. That is, the court
- 16 -
Document: 01018875527
Page: 17
should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses. Reeves, 530 U.S. at 151 (internal quotations omitted). The dissent contends that this passage supports disregarding much of the evidence based upon its unsupported perception that Employers witnesses were biasedthey had predetermined ideas about the limits of the deaf. In employment discrimination cases, the employers agents frequently will supply the testimony, yet they cannot be deemed interested parties any more than the dissent can impute bias to them. See Traylor v. Brown, 295 F.3d 783, 790-91 (7th Cir. 2002). Moreover, the principle that we disregard controverted evidence does not displace the responsibility of a court to review the record as a whole, and to consider uncontroverted evidence in favor of Employer. Id. This is the teaching of Reeves, which recognized that an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employers decision, or if the plaintiff created only a weak issue of fact as to whether the employers reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. 530 U.S. at 148. This is the case here. There are other important summary judgment principles over which the dissent rides roughshod: the movant is not required to disprove the non-movants
- 17 -
Document: 01018875527
Page: 18
case, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the non-movant must come forward with significantly probative evidence that would support a verdict in its favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). First, the dissent argues that Employers judgment about what is an essential job function is controverted because none of the job descriptions include oral communication as a job duty, but rather use the term verbal communication skills as a job qualification. This is a very thin reed, understandably not grasped by the parties. Strong verbal communication skills are listed as Job Qualifications on descriptions for both the Seasonal Associate and Performer positions. 1 Aplt. App. 99a, 101a. Listing strong verbal communication as a
requirement for a customer-service oriented job was certainly reasonable on the part of Employer. In determining whether a function is essential we simply have no license, absent evidence, to disregard a natural reading of a written job description. The dissents major point is that Employee could communicate effectively. The dissent relies on the photo shoot with the Krols, and several other shoots that Employee allegedly participated in. But any review of the evidence in the light most favorable to Employee does not reveal a genuine issue of material fact that would require submission to a jury. When Employee was asked how many times she took photographs in the camera room, she said 15, 20, maybe less. I
- 18 -
Document: 01018875527
Page: 19
dont know. Id. at 246a-47a. When asked how many of those times she was by herself, she answered, [a] couple. Id. at 247a. On most of these occasions, therefore, Employee was accompanied in the camera room by a performer who could hear and communicate orally with customers. At best, except for on very limited occasions, Employer did not find Employee qualified to work in the camera room on her own. While the dissent points to a blanket statement given by Employees vocational rehabilitation counselor that deaf persons can perform a job calling for strong customer service skills and oral communication skills by using gestures, notes, and so forth, this simply does not address Employees abilities any more than the fact that Employer hired Employee in the first place. In fact, it is uncontroverted that Employee had minimal lip-reading capability, and scored below average on tests administered by the EEOCs expert. 2 Aplt. App. 310a. And while it is possible that Employee could, to some extent, communicate with customers in the Employers setting and ensure that they had a pleasant experience, it is unreasonable to expect Employer to reallocate specific job dutiesrequiring more than one person in the camera room at a time, or not requiring her to perform sales dutiesin order to accommodate. See Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995). Employees job required her to take photos of very young childrenwho are easily distracted and in need of constant directionin an expeditious manner. Similarly, interaction with parents,
- 19 -
Document: 01018875527
Page: 20
both in the photo room, and while selling the photographs, was part of her job. Therefore, effective communication was key. As we have stated, the essential function inquiry is not intended to second guess the employer or to require the employer to lower company standards. See Mason v. Avaya Commcns, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004) (internal quotation marks omitted). A court should be hesitant in displacing the business judgment of an employer on how to run its business. The dissent also contends that this case is controlled by Davidson v. America Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003). Davidson is patently distinguishable. The case involved a change in company policy which effectively prevented America Online from hiring new deaf employeeseven for jobs that did not require oral communication skills. Id. at 1191-92. An obvious and critical difference between Davidson and this case is that neither the district court nor the court of appeals in Davidson considered an individuals performance on the job, as we have done here. Instead, those courts found that a jury should decide whether a blanket policy preventing deaf individuals from being hired for jobs that only required them to answer emails and handle mail could be justified as a business necessity. Id. at 1182-83, 1191-92. Therefore, summary judgment in favor of America Online was improper. Id. at 1192. Since we have abundant evidence in the record about Employees particular job performance here, the cases are easily distinguishable.
- 20 -
Document: 01018875527
Page: 21
The dissent also claims that the court overlooks direct evidence of retaliation and that any time there is direct evidence it is sufficient evidence of pretext requiring submission of a retaliation claim to the jury. We disagree. To be sure, in an indirect case, a plaintiff may survive summary judgment with a prima facie case and a showing of pretext or direct evidence of discrimination in response to an employers legitimate reasons for its actions. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1397 (10th Cir. 1997). But we doubt this means that summary judgment can never be granted when there is direct evidence of retaliation, no matter how weak in the context of the entire record: such a rule would insulate one class of cases from summary judgment principles. We need not decide that issue. This circuit has a very high bar for what constitutes direct evidence of retaliation: it does not require any inference or presumption. Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1000 n.8 (10th Cir. 2011). The statement the dissent relies upon, coming in the context of a twopage performance evaluation, is not direct evidence: Insubordination: You dont seem to realize that people revolve around the business; the business doesnt revolve around the people. You became angry and threatened to bring a grievance against the Picture People when you didnt get your hours increased.
2 Aplt. App. 341a. The letter requires us to infer retaliatory motive from a chain of eventsthat the disciplinary notice was given to Employee because she asserted her ADA rights, and not because of the several other problems noted on
- 21 -
Document: 01018875527
Page: 22
the performance evaluation. This differs from the termination letter in the case referenced by the dissent, Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir. 1999). In that case, the letter stated that [a]s a result of issues raised in your deposition [including Title VII race discrimination claims], effective immediately, you are suspended from all duties on behalf of the Company. Id. at 550. That letter did not require an inference; it directly stated that the Title VII claims were the reason for the termination. That is not the case here. Summary judgment on the retaliation claim is proper. Employee claims that she was treated differently from other employees who engaged in the same behavior, but does not allege any specific facts or incidents to back it up. Though the dissent views that as sufficient, on summary judgment more is required. See Jones v. Denver Post Corp., 203 F.3d 748, 756 (10th Cir. 2000). Summary judgment based upon disparate discipline moves from generalities to specifics: who, why, when, and where. Further, while Employee claims that the fact that she was not scheduled after Christmas shows pretext, Employer has come forward with a non-discriminatory reason for its failure to staff her: she could not perform all functions of the job and, therefore, could not be staffed during 2-2 staffing. The performance evaluation does contain numerous non-retaliatory reasons. These include: refusing to take a break, spending time on the clock to color, and demanding hours after initially refusing to shoot photo sessions in December. 2 Aplt. App. 341a. It mentions that Employer was only able to schedule Employee
- 22 -
Document: 01018875527
Page: 23
during busy times because of her inability to perform all required tasks. Id. Employee has failed to identify sufficient evidence to create an issue of fact as to pretext. AFFIRMED.
- 23 -
Document: 01018875527
Page: 24
No. 11-1306, EEOC v. The Picture People HOLLOWAY, Circuit Judge, dissenting: I Ms. Jessica Chrysler was hired as a photographer or performer at the Littleton, Colorado studio of Defendant-Appellee The Picture People, Inc. (the Employer). The manager who hired her had full knowledge of her deafness and the means by which she can communicate, and he also had the experience to fully understand the requirements of the job. When Ms. Chrysler was given an opportunity to conduct a photo session, her performance was given high praise by the customers. She conducted a number of other sessions as well, and there is no evidence that these sessions were less than successful in any way. Nevertheless, acting on what a jury could well determine was nothing more than a stereotyped view of the limitations of the deaf, the Employer first relegated Ms. Chrysler to work only in the lab, then eliminated all of her hours, and finally, after months of hollow promises that she would be given some opportunities, it fired her. Not only that, but the Employer explicitly chastised Ms. Chrysler for having the temerity to complain about her treatment. The EEOC brought this case against the Employer alleging (1) that the Employer had discriminated against Ms. Chrysler because of her deafness 1 in
The complaint alleged three discrete discrimination claims: (1) failure to accommodate; (2) wrongful termination; and (3) hostile work environment. The
Document: 01018875527
Page: 25
violation of the Americans With Disabilities Act, 42 U.S.C. 12101-12213 (2006) (ADA) 2; and (2) that the Employer had retaliated against Ms. Chrysler for her requests for accommodation and complaints of discrimination. Despite substantial evidence that Ms. Chrysler had performed well, the district court granted summary judgment for the Employer, holding that Ms. Chrysler was unable to perform the essential functions of the job and thus was not a qualified individual entitled to the protection of the ADA. Thus, the judge concluded that she could not do that which she had in fact done. Moreover, although faced with the fact that Ms. Chrysler had been disciplined explicitly for invoking her rights, the district court nevertheless concluded that the EEOC had not produced enough evidence to defeat summary judgment on the retaliation claim. The opinion affirms these illogical holdings. Like the district court, the opinion fails to apply the proper standard in evaluating the evidence. When the evidence is taken in the proper light, I am convinced that the judgment must be reversed. I therefore respectfully dissent. II
EEOC does not appeal from the district courts grant of summary judgment to the Employer on the third claim. This lawsuit is based on events that occurred before the ADA was amended in 2008.
-22
Document: 01018875527
Page: 26
A. We review a grant of summary judgment de novo, applying the same standard as the district court. McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). Under Fed. R. Civ. P. 56, summary judgment should be entered by the district court if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. On appeal, [w]e examine the record to determine whether any genuine issue of material fact was in dispute; if not, we determine whether the substantive law was applied correctly, and in so doing we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion. McKnight, 149 F.3d at 1128 (brackets and quotations omitted). Furthermore, in our review of the record we must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000). Because the majority opinion fails even to acknowledge much less to view in the favorable light as it should much of the evidence that the EEOC submitted to the district court, it is necessary to survey that evidence in some detail. In keeping with our standard of review, the following recitation of the evidence will be focused on the EEOCs evidence and should be understood as representing what a properly instructed, rational jury could find, based on that evidence. Testimony favorable to the Employer in this case comes mostly from its own employees, and the jury of course would not be required to accept their testimony. Therefore, that
-3-
Document: 01018875527
Page: 27
evidence should not be considered at this stage. Id. (noting that the courts should give credence to the evidence favorable to the moving party on summary judgment only if that evidence is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses). B. Ms. Chrysler is congenitally deaf. She communicates in American Sign Language (ASL), and with written notes, gestures, and facial expressions. She also can use a computer. III Aplt. App. 593a. These methods work when she
communicates with one person or a small group, but she needs a sign language interpreter for group settings such as the staff meetings held by the Employer during her brief tenure. The Employers business is photography, and it specializes in portraits of children of age five and younger. Ms. Chrysler was hired on October 23, 2007, to work at the portrait studio in Littleton, Colorado, one of a number of the Employers branches. Ms. Chrysler was hired by Mr. Aguilar, who was then the manager of that studio. She was hired as a photographer, a position that the Employer calls
associate or performer. Performers had four general areas of responsibility: customer intake, sales, portrait photography, and laboratory duties. Mr. Aguilar intended to use Ms.
Chrysler primarily in the camera room taking pictures. Mr. Aguilar had previously worked for the Employer in another location where he had worked with a deaf
-4-
Document: 01018875527
Page: 28
woman photographer, Ms. Duke, and Mr. Aguilar thought that Ms. Duke was very capable. Ms. Chrysler was scheduled for an initial orientation and training program that the Employer requires for all new hires. One of the goals of the training is to transmit the Employers philosophy, which emphasizes not just the quality of the portraits it produces but also the quality of the customers experience. On being hired, Ms. Chrysler requested that an ASL interpreter be provided for the training session. Mr. Aguilar agreed that one was needed but had no idea how to arrange it. He contacted his district manager, Candi Bryan, about it. Ms. Bryan told Mr. Aguilar that the Employer did not provide such services. Aguilar and Chrysler each contacted Employers human resources department. A human resources official suggested that Mr. Aguilar check local churches for volunteer interpreters. A Sr. Human Resources Mgr. sent an e-mail to the studio manager saying that hiring an interpreter to be around the studio while this employee is working . . . seems like an expense we would like to do without. II Aplt. App. 395a. Employer provided no other assistance to Aguilar as he attempted to make arrangements for an interpreter. 3 The Employers failure to provide an interpreter (as noted, the Employer did
The majority says that the Employer was unable to provide an interpreter, but the evidence reflects that the Employer never made any attempt to do so. Maj. op. at 4.
-5-
Document: 01018875527
Page: 29
not attempt to provide an interpreter) caused Ms. Chryslers start date to be delayed by three weeks. Eventually, Ms. Chrysler learned that the Colorado Division of Vocational Rehabilitation, which had been helping her in her job search, could provide interpreters for their clients initial training, and at Ms. Chryslers request this was done for her three days of initial training in mid-November 2007. Ms. Chrysler completed the training and was assigned to begin working in the camera room. The day after completing the training, Ms. Chrysler had a photo session with the Krol family and their infant. This went very well and the Krols were very pleased, so much so that they bought more pictures than they had planned to buy, III Aplt. App. 740a-741a, and returned the next month for another session. 4 At that time, they requested to work with Ms. Chrysler again but were told that she was not available. In fact, she was available but the Employer had relegated her to lab work only at that time. Just three days after the Krols session with Chrysler, two managers visited the Littleton studio to conduct advanced training for the staff. Ms. Chrysler attended.
4
This is presumably the occasion to which the majority refers when it says that Ms. Chrysler attempted to conduct a shoot by herself . . . . Maj. op. at 4. This results from failure to adhere to the proper summary judgment standard of taking the evidence in the light most favorable to the party opposing summary judgment. Ms. Chrysler did not just attempt to conduct a shoot by herself she did conduct this shoot by herself with a good result for both the Employer and the customers. Mr. Aguilar testified that Ms. Chrysler had made a huge sale. I Aplt. App. 96a.
-6-
Document: 01018875527
Page: 30
She requested an interpreter, but none was provided. Consequently, she could not benefit from the training session. One of the managers providing the training contacted district manager Bryan to express concern about Chrysler. (Apparently the concern was not that Ms. Chrysler had not been provided an interpreter, but concern that she had been hired as a photographer.) The next day Ms. Bryan directed Mr. Aguilar to assign Ms. Chrysler to the lab. Mr. Aguilar demoted himself from studio manager to performer that same day (a decision which, Aguilar later testified, was not related to the direction regarding Ms. Chrysler). Management of the Littleton studio was assigned, temporarily, to assistant manager Kim Doyle, with Deidre Sandoval to be her assistant. The Employer directed them to assign Ms. Chrysler only to the lab. Ms. Chrysler testified in her deposition that she had conducted as many as 15 to 20 photo shoots for the Employer, most with other employees present and a couple by herself. She said that district manager Bryan was with her during one session. Most significantly, she testified that no one ever expressed concern to her about how those sessions had been conducted. On appeal, the Employer has not identified any evidence that there was any deficiency in Ms. Chryslers performance during the times that she conducted photo sessions, and my search of the record has produced no such evidence. 5 Accordingly, a jury could conclude that the decision
5
As noted in the majority opinion, the Employers brief cites testimony to the effect that Ms. Chryslers alternative modes of communication would be
-7-
Document: 01018875527
Page: 31
to assign Ms. Chrysler to work only in the lab, where she would have no contact with customers, was based on nothing but stereotyped assumptions against the abilities of the deaf. This is what the ADA was intended to counter. The studio occasionally held mandatory staff meetings. During the six weeks that Ms. Chrysler worked there, she requested an interpreter for the meetings, but none was ever provided. Instead, the Employer merely gave her a written outline or agenda. As a result, she was not able to benefit as intended from the discussions in the meetings. The Employers business is seasonal. Ms. Chrysler had been hired as part of a pre-holiday expansion of the work force because Christmas is one of the busiest seasons. Immediately after Christmas, business slowed down dramatically at least
simply impractical in the camera room. This evidence might be sufficient to create an issue of fact such that summary judgment in favor of the EEOC would not have been proper. But it cannot do more. As I note in the text of this dissent, in reviewing this summary judgment in favor of the Employer, we are bound to disregard evidence favorable to the Employer that the jury is not required to believe. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000). Moreover, the Employers brief, in the passage quoted in the majority opinion, cites in support of its statements the deposition testimony of three witnesses, none of whom testified to having observed any of Ms. Chryslers photo sessions. (Ms. Chrysler testified that Ms. Bryan had observed one session, but Ms. Bryan testified that she observed Ms. Chrysler only in a class.) A jury could decide that the concerns expressed by these witnesses were based on predetermined ideas of the limits of the deaf. But in the posture of this appeal, this panel should disregard this evidence because a jury would not be required to accept it rather than the evidence presented by the EEOC.
-8-
Document: 01018875527
Page: 32
until Valentines Day, with the result that most employees got substantially reduced hours. But Ms. Chrysler was never given another shift after Christmas Eve. When Ms. Chrysler noticed that she was not listed on the first schedule to come out after Christmas, she complained to acting manager Doyle. Ms. Doyle told Ms. Chrysler she would love to have her on full-time but there simply was not enough work for anyone to get full-time assignments in January. In an exchange of written notes, Ms. Doyle told Ms. Chrysler she would try to find some shifts for her. Ms. Doyle then sent a message to district manager Bryan saying that Ms. Chrysler was demanding hours and threatening discrimination. 6 Ms. Doyle prefaced this message with three other complaints about Ms. Chrysler: she was causing trouble arguing with the managers and trying to refuse to take a break; she was coloring with colored pencils in the lab during work hours; and she had declined a few opportunities to shoot when the studio was really busy. 7 District manager Bryan forwarded Ms. Doyles message to a representative of human resources. That person later testified that she thought the matter had been referred to her for discipline because she understood (or assumed), incorrectly, that
The latter was meant to say that Ms. Chrysler was threatening to complain of discrimination, as Ms. Doyle testified in her deposition. III Aplt. App. 704a706a. This complaint that Ms. Chrysler had declined opportunities to conduct photo sessions is puzzling, but I find nothing in the record to explain why Ms. Chrysler declined opportunities, and neither party bases any argument on this evidence.
-97
Document: 01018875527
Page: 33
management at the Littleton studio had communicated with Ms. Chrysler and that Chrysler had refused to change her behavior. That same day, district manager Bryan drafted a disciplinary notice for Ms. Chrysler. Although this was the first notice to Ms. Chrysler of any problem, the document was labeled a final warning. It reprimanded Ms. Chrysler first for refusing to take breaks and second for becoming angry and threatening to bring a grievance against the employer. II Aplt. App. 341a. Ms. Chrysler was also reprimanded for coloring in the lab. In the disciplinary notice as later delivered to Ms. Chrysler was a message to Ms. Chrysler about her hours: Due to the limited tasks that you are qualified to perform, we can only schedule you on very busy times with other groups of employees. There are not very many busy times in January . . . . If you want more hours, wait till the next peak period, perhaps Valentines Day. After that, Ms. Chrysler called the studio weekly to see if she had been scheduled for any shifts. Despite the suggestion in the notice that Ms. Chrysler might get more hours in the period before Valentines Day, she never was given any work time after Christmas Eve in 2007. On March 6, 2008, Ms. Chrysler filed a discrimination charge against the Employer with the EEOC. In its response to the charge, the Employer said that Ms. Chrysler had not been terminated and told the EEOC that it would contact Chrysler when business increased so that she may be able to continue her employment, and said that this might occur in the weeks before Fathers Day (which had previously
-10-
Document: 01018875527
Page: 34
proved to be a busy time for the studio). In May 2008, Ms. Chrysler visited the new manager of the Littleton studio about getting some shifts. The Employer never contacted Ms. Chrysler, never gave her any more work, and formally terminated her in October 2008. These are the basic facts on the discrimination charge and the retaliation charge on which the district court ruled. III A. The ADA coverage In enacting the ADA, Congress stated, inter alia, that its purpose was to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities . . . . 42 U.S.C. 12101(b)(1). Congress found that individuals with disabilities experienced restrictions and limitations . . . resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society . . . . 42 U.S.C. 12101(a)(7). Coverage under the ADA extends to one who is a qualified person with a disability and that in turn is defined as one who with or without reasonable accommodation, can perform the essential functions of the position in question. Therefore, a necessary first step is to identify the essential functions of the position. Essential functions are the fundamental duties, not the marginal
functions of the position. Davidson v. America Online, Inc., 337 F.3d 1179, 1191
-11-
Document: 01018875527
Page: 35
(10th Cir. 2003). Determining whether a particular duty is essential is a factual inquiry based on a number of factors, including but not limited to the employers judgment as to what duties are essential and any written job description the employer prepared for the position. 42 U.S.C. 12111(8); Davidson, 337 F.3d at 1191 (Determining whether a particular function is essential is a factual inquiry.). But the employers judgment is not conclusive evidence. As this court has said, an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description. Davidson, 337 F.3d at 1191. More specifically, we deal here with a purported essential function that the Employer now seeks to define in such a way as to eliminate an entire class of disabled persons those who do not communicate well orally. 8 The majority correctly notes the legal principles that establish when an employer may adopt such qualification standards. By statute, such a qualification standard may only be used when consistent with business necessity. 42 U.S.C. 12112(b)(6), quoted in maj. op. at 7. The majority also correctly notes that an employer must make reasonable accommodations for an otherwise qualified person unless the employer can show that the accommodation would impose an undue hardship on the employers operations. 42 U.S.C. 12112(b)(6), quoted in maj. op.
8
As discussed in the text infra, the EEOCs position is that oral speech is a job qualification, but not necessarily an essential function.
-12-
Document: 01018875527
Page: 36
at 7. The Employers primary contention is that the ability to communicate orally is an essential function of the position. The EEOCs primary contention is that ability to communicate orally is a method by which most employees perform the essential function of communicating with the customers. 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 Employers 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. 9 A jury could find from this evidence that oral communication is a useful skill or method to perform the essential functions of
The job descriptions (one for seasonal associate and one for performer) listed strong verbal communication skills as a job qualification, not as a duty. I Aplt. App. 99, 101. Both parties seem to accept that verbal communication in this instance was meant to convey oral communication, which is the usage adopted in the majority opinion as well.
-13-
Document: 01018875527
Page: 37
communicating with customers, but one that is not in itself an essential function of the . . . position. See Skerski v. Time Warner Cable Co., 257 F.3d 273 280 (3d Cir. 2001) (emphasis added). Significantly, Skerski noted that the legislative history of the ADA indicated that the essential function requirement focuses on the desired result rather than the means of accomplishing it. Id. (quoting 136 Cong. Rec. 11,451 (1990)). The majority says that Ms. Chrysler is unable to fully perform three of the four main duties of a performer. Maj. op. at 9. Rejecting the EEOCs evidence that Ms. Chrysler can communicate effectively using her alternative means, the majority further says that nothing suggests that gestures, pantomime, and written communication are similarly effective and efficient for these tasks. Id. at 10. I strongly disagree. Considerable evidence was produced from which a jury could determine that Ms. Chrysler could communicate effectively. Most notably, there was evidence that Ms. Chrysler not only could but did communicate effectively and efficiently. First, there is the evidence of the photo session with the Krol family, discussed supra. Only by ignoring this clear example of Ms. Chryslers ability to perform the essential functions of photo shooting and sales can the majority find that nothing suggests that she could do that which she had in fact already done. Moreover, Ms. Chrysler conducted several other shoots, some by herself and some with another employee present. No evidence has been cited to us suggesting that there were any communication problems in conducting
-14-
Document: 01018875527
Page: 38
these sessions. Mr. Aguilar testified that he never received a complaint from a customer for whom Ms. Chrysler had taken photos. III Aplt. App. at 613a. It appears that none of the employees who worked with Ms. Chrysler in photo sessions testified; in any event, the Employer has not cited any record evidence that any of these persons observed deficiencies in her performance. Consequently, in the face of Ms. Chryslers testimony that she had conducted 15 to 20 photo sessions, there is no evidence of any resulting communication problems. 10 As for the efficiency of the communication, again there is no evidence that any of Ms. Chryslers sessions were out of the ordinary in duration. Of course the Employers ultimate interest is sales. The only evidence in the record regarding Ms. Chryslers performance in this area comes from her manager, Mr. Aguilar, who testified that Ms. Chrysler made a huge sale to the Krol family, successfully selling the Krols more photos than they had originally planned to purchase. I Aplt. App. 96a; see also n.4, supra, and accompanying text. It is surely relevant also that Ms. Chrysler was, after all, hired by the branchs manager, Mr. Aguilar, with full awareness of both the job requirements and Ms.
The Employers scant evidence should in any event be disregarded in view of the summary judgment posture of this appeal, because a rational jury could find Ms. Chryslers evidence on this point more credible than the Employers. The resulting conclusion that naturally follows such a credibility finding would be that the Employers decisions were based only on stereotyped assumptions about what Ms. Chrysler could do, rather than on actual observations of how she had in fact performed. See n.5, supra.
-15-
10
Document: 01018875527
Page: 39
Chryslers deafness. Mr. Aguilar had been with the Employer for some years and believed that Ms. Chrysler could perform the job. As noted, he had worked with a deaf performer in the past. A jury could find these facts highly relevant in
determining whether the ability to communicate orally is indeed a business necessity. The EEOC produced additional evidence of Ms. Chryslers abilities. 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. The counselor also testified that, based on her experience working with her, Ms. Chrysler could communicate with customers in the Employers setting and ensure that they had a pleasant experience. The EEOCs vocational expert, Mr. Newman, also testified that Ms. Chrysler could perform the essential functions of the performer position with reasonable accommodation. In sum, substantial evidence was presented from which a jury could determine that oral communication is not an essential function of the job but a method for performing the essential function of communication, and that Ms. Chrysler could perform the essential function of communication with or without reasonable accommodation. Thus the summary judgment against the EEOC on the
discrimination claims was clearly unjustified. B. The Davidson precedent

-16-
Document: 01018875527
Page: 40
In Davidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003), as in this case, the employer relied on [the job claimants] disability as a reason for the challenged employment decision. 11 In both cases, the affected employee or
prospective employee was deaf. We said there that if the employee or prospective employee is in fact statutorily disabled, the determinative issue in the case will not be the employers intent, but whether the employee is otherwise qualified, with or without reasonable accommodation, to perform the job, a factual dispute that is resolved through traditional methods of proof. 337 F.3d at 1189 (emphasis added). In Davidson, as in this case, the decisive issue was whether the plaintiff was otherwise qualified for the position, i.e., whether he could, with or without reasonable accommodation, perform the essential functions of the position. As here, that key issue depended on whether the employers requirement related to an essential function of the job. And that is a fact question for the jury:
Determining whether a particular function is essential is a factual inquiry. Id. at 1191 (emphasis added); see also Kellogg v. Energy Safety Services, Inc., 544 F.3d 1121, 1127-28 (10th Cir. 2008) (holding, inter alia, that the jury could properly
In Davidson, the plaintiff had applied for a job in the employers customer service call center in Utah. The employer staffed the call center with voicephone and non-voicephone positions. Plaintiff applied for a nonvoicephone position, which a deaf person could perform. But the employer required for that position experience in a voicephone position. This requirement, like Picture Peoples purported requirement that performers have oral communications skills, effectively disqualified all deaf applicants.
-17-
11
Document: 01018875527
Page: 41
have found that neither of [the employers] claimed job requirements was an essential function of Ms. Kelloggs job.); Bartee v. Michelin North America, Inc., 374 F.3d 906, 914) (10th Cir. 2004) (issues on appeal included whether the jury could have found that employers requirements are not essential functions of the position at issue). I am convinced that Davidson is directly on point and mandates reversal of the summary judgment in favor of the Employer. A jury must decide whether oral communication skills are an essential function of the job or only the manner in which most hearing employees perform the job. Indeed, I find it astonishing that on this record the district court and the majority rule as a matter of law that Ms. Chrysler could not perform the essential functions of the position when in fact the evidence that she could do so was considerably stronger than the minimum necessary to submit these factual questions to the jury. A jury could determine that the Employers decisions were based on exactly the kind of stereotypes that the ADA was enacted to combat. Congress has codified its views on this point: [P]hysical or mental disabilities in no way diminish a person's right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination. 42 U.S.C. 12101. Moreover, lawsuits like Ms. Chryslers are precisely the mechanism Congress envisioned for correcting such injustice: It is the purpose of [the ADA] . . . to provide a clear and comprehensive national mandate for
-18-
Document: 01018875527
Page: 42
the elimination of discrimination against individuals with disabilities. Id. (emphasis added). It is distressing that this court should affirm the ruling below, refusing to submit the issues to a jury and for it to do so without careful adherence to our duty to view the facts in the light most favorable to the party opposing summary judgment. I would reverse the judgment of the district court and hold that the claims of wrongful termination and failure to accommodate must be submitted to a jury. C. The retaliation claim Ms. Chryslers claim of retaliation is even stronger than her claim of discrimination. The record shows that disciplinary action was initiated against Ms. Chrysler when she threatened to bring a grievance complaining of the Employers alleged discrimination on the basis of Chryslers deafness. 12 Such timing is, of course, a fact from which a jury could infer retaliatory motive. But here there is significantly more. Not only was discipline initiated when she asserted her rights; it was initiated because she asserted her statutory rights: The disciplinary notice she was given specifically reprimanded her for asserting her ADA rights! In criticizing Ms. Chryslers actions, the Employer directly impugned her for the fact that she became angry and threatened to bring a grievance. II Aplt. App.
Ms. Chryslers supervisor wrote a message saying that Ms. Chrysler was threatening discrimination, but no one disputes that this confusing language referred to Ms. Chrysler raising the issue of the Employers discriminatory behavior. III Aplt. App. 704a-706a.; supra n.6.
-19-
12
Document: 01018875527
Page: 43
341a. It is hard to imagine more direct proof of mistreatment for relying on her statutory rights. Direct evidence of retaliatory motive is evidence of pretext
sufficient to require submission of the issue to the jury. See Crowe v. ADT Security Services, Inc., 649 F.3d 1189, 1196 (10th Cir. 2011); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 551 (10th Cir. 1999); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1396 & n.5 (10th Cir. 1997); Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995). The majoritys startling holding here that direct evidence of retaliatory motive is insufficient to create a genuine issue of material fact is directly contrary to these precedents. To overcome summary judgment on the issue of pretext, the majority correctly notes, a plaintiff must present evidence of temporal proximity plus circumstantial evidence of retaliatory motive. Maj. op. at 14-15. Both of these requirements are satisfied in this case. Yet the majority chooses to scrutinize additional evidence of retaliatory motive while ignoring the direct evidence of that motive, 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. See Conner, 121 F.3d at 1396 & n.5. Moreover, the majoritys efforts to dismiss the additional, indirect evidence of pretext is unconvincing. Ms. Chrysler was disciplined for conduct that others engaged in without
-20-
Document: 01018875527
Page: 44
repercussion. The district court discounted this evidence on the basis that the EEOC provided no details about the other employees and their infractions that would allow a jury to conclude these employees were similarly situated to Chrysler. III Aplt. App. 867. Ms. Chrysler testified that the other employees worked with her in the lab and engaged in the same conduct for which she was disciplined. At the summary judgment stage, I would hold that this is sufficient to raise an issue as to whether those other employees were situated similarly to Ms. Chrysler. Moreover, there is considerable additional evidence that the Employers stated reasons were pretextual. The majority correctly notes that all (or at least most) employees had their hours reduced after the holiday season. 13 But Ms. Chryslers hours were totally eliminated not just reduced and not just in the period immediately following the holiday season but for ten months until she finally was terminated. There is no evidence that any other employees hours were reduced so drastically. Not only that, but the Employer repeatedly promised Ms. Chrysler that she would be given some work, promises which the Employer never fulfilled; indeed as far as this record reveals, the Employer never attempted to fulfill those promises. The EEOC identified even more evidence of pretext in its briefs, such as the
The majority also cites Ms. Chryslers supposed inability to perform all of the functions of the job to excuse the Employers actions. I have already explained my disagreement with that thesis.
-21-
13
Document: 01018875527
Page: 45
discrepancies between testimony of district manager Bryan and other witnesses. But with direct evidence of discriminatory motive and the evidence I have already noted, further discussion here is not necessary. If temporal proximity plus circumstantial evidence of retaliatory motive is sufficient and the majority correctly says that it is then how can temporal proximity plus direct evidence of retaliatory motive be insufficient? Our precedents say that it is sufficient. I strongly disagree with the majoritys holding that the retaliation claim may be rejected by a summary judgment. Conclusion The majority opinion fails to take the facts in the light most favorable to the EEOC as we are bound to do in the posture of this case, leading to the surreal conclusion that Ms. Chrysler is unable, as a matter of law, to perform the tasks that she had completed successfully. On the retaliation claim, the majority ignores direct evidence of retaliatory motive and incorrectly finds the remaining evidence insufficient. In sum, I would reverse the district court and remand for a properly instructed jury to resolve the genuine issues of material fact that are presented here. Accordingly, I must respectfully but emphatically dissent.
-22-
Case 1:09-cv-02315-PAB-CBS Document 31-4
Filed 09/01/10 USDC Colorado Page 3 of 4
100a
101a
340a
341a
342a
Case 1:09-cv-02315-PAB-CBS Document 43-31 12
Filed 10/07/10 USDC Colorado Page 5 of
26
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 same, nothing stood out of that visit. I do remember somebody coming up to us -- I don't remember who it was -- and asking us if we wouldn't mind if -- that our photographer did not speak, so would we mind if that was the case, if we would be able to use her. And I'm, like, "Sure, that's no big deal. pictures, it doesn't matter to me." So we went and had our conversation -- or not conversation. We went and had -- she came out and we went If she can take
back, and this time we were on the side setting, and we did our pictures and didn't have any problems. And we
were going in -- the one thing that does stand out is we went in just to get pictures of him and we were only going to get a couple of pictures for just the six months time period, and we ended up walking out with a big one and some small ones and some other ones to send to the grandparents. So we ended up spending a lot more money than I had anticipated. And overall it was a good experience,
much like the first time. Q. Looking at Page 1965 of Exhibit 43 (sic), it Does that comport
appears as though you spent $139.44.
with your recollection of what you spent during that visit? A. That looks about what I remember spending. I was
Krol, Melissa 072310
737a
27
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 only expecting to spend $40 -- the month before Christmas. Q. Well, let me talk about-- I've gone to the
calendar and it appears as though November 17th, 2007, was a Saturday. A. Does that seem right?
That would be -- it sounds right, because I work
really funky hours during the week, so I try not to do much during the week. Q. A. Is your work schedule Monday through Friday? Monday through Friday, 5:00 a.m. until 2:00 p.m.,
which is what I started when he turned a little over three months old. Q. Holy cow. I know it's challenging. On a Was it
Saturday tell me what the studio was like? different than what you remember in August? A. Q. A. A little bit. Tell me how? A little busier.
It still was nothing like the
JC Penney experience, but it wasn't anything that was bad. There was still plenty of room for everyone to sit, But definitely it was busier.
and it was still fine. Q.
You said you noticed there was an increased level
of activity. A. Uh-huh. And noticed also that there were more
people in there that were dressed for seasonal pictures. Q. For Christmas?
738a
30
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 year long picture that I wanted to do. Q. That's clever. How did you communicate those
preferences to Jessica Chrysler? A. Q. room? A. She set up something, and we essentially did the And, you know, she We wrote it down via notes. And what happened once you got into the camera
session with, you know, gestures.
would be like, "Hey, try" -- I don't know how to describe it. She would gesture to "here, prop him up." And then
if we had to, if there was something we didn't understand, we would write a note. And, in fact, that picture that is framed behind you, the middle picture, was all of her idea, and that sticks out in my mind because we weren't going to get pictures of us or anything. And she was just like, you And we're
know, "Hey, kiss him," and made some gestures. like, okay. love that. Q. session? A.
And that's when we got that picture, and we Does that make sense? What was your son doing during the
Sure.
He was being held or he was, you know, in
between -- when we were doing pictures, whatever, Matt would hold him or I would hold him, or he would be in the propped position. She put one time over the black and --
739a
33
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 those mistakes and as second time parents we make different mistakes. Q. (By Ms. Archer) Were you offered any toys during
the session to stimulate your child or get his attention? A. I don't think so, but I don't remember on any of But I don't
the occasions having any toys on any of them. remember specifically. Q.
Tell me after the session ended in your second
visit in November of 2007, what happened next? A. Q. A. After the pictures were taken? Uh-huh. We went out to the waiting room and they said
they were processing the pictures, you know, via either writing a note -- but we basically understood that she would be back out in a minute and that we would look at the pictures. worked. So we sat down and we waited, and then she brought out the big picture, which we bought, which we went in saying we weren't going to buy. started looking at the pictures. And then we And we knew from the first session how it
And we sat down, and it
was the same way as the first time -- brought up on a computer screen. We sat and looked at the ones we liked And started going
and ruled out the ones we didn't. through the individual ones we did.
740a
34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we like." And that was essentially the same way, other than the fact of we pointed to pictures on the screen and we wrote little notes (indicating) and we would pass them back and forth. black and white?" And, like, "Okay, can we change this to So she would change it to a different
color or sepia toned. And then we were, like, "Okay, these are the ones And she took them back and processed them and,
again, we walked out with them in our hands. Q. Was there a difference in the period of time you
were there from the second session compared to the first? A. Nothing stood out. It was basically around the
same time frame. took a long time.
I don't remember leaving saying that it I do remember one specific thing out of When we left, I did say that was a That when we walked out the I was very impressed that
that entire session.
really great experience.
door, I said, "That was cool."
Picture People did -- you know, had her working there, because it was not something that you see every day. is a specific memory that I have when we walked out. was very impressed. Q. While you were viewing your pictures, was Jessica That I
communicating with you about them or "That's cute, look at that smile"? A. No. Things like that? But I didn't solicit those and neither did
741a
CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on August 24, 2012, I filed this Rehearing Petition and attachments electronically with this Court using the Courts electronic case filing (ECF) system, and served it on counsel for The Picture People, Merrily S. Archer, Esq., using the Courts ECF system. I further certify that, pursuant to this Courts local rules, I will file with this Court an original and 18 copies of the EEOCs Rehearing Petition and attachments to be received by this Court within two business days of August 24, 2012, and will provide two copies, by the same means on the same date, to counsel for The Picture People, Inc., Merrily S. Archer, Esq., at the following address: Merrily S. Archer, Esq. EEO Legal Solutions, LLC 2685 Emporia Street, Denver CO 80238 (303) 248-3769
/s/ Susan R. Oxford
Susan R. Oxford Attorney EEOC, Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov
17

EEOC V Picture People, No. 11-1306 (10C) Reh'g Pet W Attchmts

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

EEOC V Picture People, No. 11-1306 (10C) Reh'g Pet W Attchmts

Uploaded by

Copyright:

Available Formats

No.

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TABLE OF AUTHORITIES Cases Pages

Regulations 29 C.F.R. 1630.10 .................................................................................................11 29 C.F.R. 1630.15(c).............................................................................................11

undue hardship on the operation of the employers business).

12113(a); see also 29 C.F.R. 1630.10, 1630.15(c).

/s/ Susan R. Oxford

July 10, 2012

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Appellate Case: 11-1306

Date Filed: 07/10/2012

Before BRISCOE, Chief Judge, HOLLOWAY, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012

Appellate Case: 11-1306

Date Filed: 07/10/2012