U.S. Equal Employment Opportunity Commission v. MJC, Inc. et al
Filing
151
ORDER (1) Granting In Part and Denying In Part Plaintiff's Motion For Summary Judgment and (2) Denying Defendants' Motion For Summary Judgment re 91 93 .The EEOC's motion for summary judgment is granted with respect to Defendants ' defenses that Vicari posed a direct threat to the health and safety of himself and others, that the EEOC's claims are barred by the applicable statute of limitations, and that the EEOC failed to exhaust administrative remedies prior to filing suit. The remainder of the EEOC's summary judgment motion is denied. Defendants' motion for summary judgment is denied. Signed by JUDGE SUSAN OKI MOLLWAY on 7/11/2019. (cib)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
)
)
)
Plaintiff,
)
)
vs.
)
)
MJC, INC.; GAC AUTO GROUP,
)
INC. dba CUTTER MAZDA OF
)
HONOLULU; and DOES 1-10
)
INCLUSIVE,
)
)
Defendants.
_____________________________ )
Civ. No. 17-00371 SOM-WRP
ORDER (1) GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND
(2) DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
ORDER (1) GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND (2) DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION.
Ryan Vicari, who is deaf, applied for a detailer
position at Defendant GAC Auto Group, Inc. dba Cutter Mazda of
Honolulu (“Cutter Mazda”).
Cutter Mazda’s Assistant Service
Manager, Guy Tsurumaki, interviewed Vicari but did not hire him,
citing safety concerns relating to his deafness.
Plaintiff
Equal Employment Opportunity Commission (“EEOC”) filed suit on
Vicari’s behalf, complaining that Cutter Mazda and the owner of
Cutter Mazda, Defendant MJC, Inc. (collectively, “Defendants”),
had violated the Americans with Disabilities Act (“ADA”) by
refusing to hire Vicari because he was deaf.
Before the court are competing motions for summary
judgment filed by the EEOC and Defendants.
ECF Nos. 91, 93.
The EEOC argues that the court should grant summary judgment in
its favor with respect to its ADA claims and four of Defendants’
defenses.
Defendants argue that summary judgment should be
granted in its favor because no detailer position was available
at the time of Vicari’s job interview and because Tsurumaki is
not a “supervisor” for purposes of imputing liability to
Defendants.
Defendants also request that the case be stayed
because the EEOC allegedly failed to notify Defendants during
conciliation that Vicari has a cochlear implant.
Concluding that several factual disputes remain for
trial, the court does not grant either summary judgment motion
in full.
However, the court grants the EEOC’s motion to the
extent it challenges the defenses that Vicari posed a direct
threat to the health and safety of himself and others, that the
EEOC’s claims are barred by the applicable statute of
limitations, and that the EEOC failed to exhaust administrative
remedies before filing suit.
Finally, the court denies
Defendants’ request for a stay; Defendants fail to demonstrate
that the EEOC’s conciliation efforts were legally deficient.
II.
BACKGROUND.
A.
Factual Background.
Vicari has been deaf since he was very young.
94-2, PageID # 1168.
ECF No.
On June 24, 2015, he submitted a job
application at the Cutter Mazda car dealership.
2
ECF No. 94-3.
In the portion of the application labeled “Position for which
you are applying,” Vicari wrote “Detailing.”
See id., PageID
# 1175.
That day, Guy Tsurumaki, Assistant Service Manager at
Cutter Mazda, interviewed Vicari in his office.
Vicari was
accompanied by his grandmother, Patricia Vicari (“Patricia”).
ECF No. 94-5, PageID #s 1197, 1226.
Conducting initial
interviews of applicants and making hiring recommendations to
the Service Manager were part of Tsurumaki’s job.
Manager usually adopted his recommendations.
The Service
Id. at 1198-1201.
The interview of Vicari lasted between five and ten
minutes.
# 1170.
ECF No. 94-5, PageID # 1225; ECF No. 94-2, PageID
position.
Tsurumaki noted that Vicari was applying for a detailer
ECF No. 94-5, PageID # 1226.
Tsurumaki contends that
he told Vicari and Patricia that Cutter Mazda did not have any
detailer position open, but that there was a lot attendant
position open.
ECF No. 94-5, PageID #s 1226-27.
Vicari has a
different recollection; he says he was never told that he was
being interviewed for a lot attendant position.
PageID # 2094.
ECF No. 131-13,
Patricia recalls that Tsurumaki discussed
“detailing” with Vicari.
ECF No. 131-8, PageID #s 2030, 2035.
During the interview, Patricia told Tsurumaki that
Vicari was deaf but could read lips.
# 1227.
ECF No. 94-5, PageID
Tsurumaki then told Patricia and Vicari that the
3
movement of cars around the lot could be unsafe for Vicari.
at 1231-33.
Id.
Tsurumaki suggested that Vicari consider a position
outside of the car dealership industry given the potential
safety concerns.
Id. at 1231-33.
According to Vicari and
Patricia, Patricia told Tsurumaki that Vicari wears a cochlear
implant, and Vicari showed Tsurumaki the implant.
ECF No. 131-
8, PageID #s 2032-35; ECF No. 94-4, PageID # 1187.
Tsurumaki
says he was not told about the cochlear implant, although he was
told that Vicari had a driver’s license and could drive.
ECF
No. 94-5, PageID # 1225.
The interview ended without Tsurumaki’s determining
whether Vicari qualified for the lot attendant position.
ECF
No. 94-5, PageID #s 1233-35; ECF No. 94-2, PageID # 1171.
Tsurumaki did not discuss Vicari’s interview with Cutter Mazda’s
Service Manager, Alan Edwards, or with MJC Inc.’s Human
Resources Manager, Kaylene Remata.
ECF No. 92-6, PageID #s 985-
86; ECF No. 92-20, PageID #s 1087-88.
The detailer job description states that detailers are
responsible for cleaning and preparing the interior and exterior
of new and used vehicles for sale.
ECF No. 94-9, PageID # 1266.
Tsurumaki explained that detailers wash, vacuum, and wax cars,
and drive cars around within the lot.
PageID #s 1204-05.
ECF No. 94-5,
Jefferson Lucio, a former detailer at Cutter
Mazda, stated that detailers are trained, their duties require
4
primarily physical manpower, and the only machinery that they
use is a vacuum cleaner.
ECF No. 94-10, PageID #s 1269-71.
Lot attendants are divided into three shifts:
openers, main shuttles, and closers.
5, PageID #s 1206-07.
ECF No. 94-12; ECF No. 94-
An opener is responsible for opening the
gates, cleaning the service areas, taking out the trash, and
driving vehicles to an area designated for service cars.
No. 94-5, PageID # 1208; ECF No. 94-12, PageID # 1276.
ECF
A main
shuttle drives a shuttle that takes customers to and from their
jobs throughout the day, makes sure that the shuttles are clean,
and keeps the shuttles filled with gas.
ECF No. 94-5, PageID
#s 1210-12; ECF No. 94-12, PageID # 1277.
A closer locks the
cars and the gates, ensures that keys are safely stored, empties
rubbish, washes and cleans vehicles, and moves vehicles within
the lot.
ECF No. 94-5, PageID #s 1213-15.
Lot attendants primarily communicate with each other
and other workers at the dealership by two-way radio.
133-4, PageID # 2254.
ECF No.
For example, lot attendants use the two-
way radio to communicate regarding customer pickups.
ECF No.
133-4, PageID # 2256; ECF No. 133-6, PageID #s 2295-98.
The job
descriptions for the opener and main shuttle mention the use of
a two-way radio.
ECF No. 94-12, PageID #s 1276-77.
The job
descriptions of all lot attendant shifts, including the closer,
state that lot attendants are responsible for “return[ing] [two5
way] radio[s] onto [the] charging station.”
Id. at 1276-78.
Lot attendants also communicate in person, by cell phone, and by
car horn.
ECF No. 94-5, PageID # 1218.
Vicari is unable to use a two-way radio.
ECF No. 133-
15, PageID # 2335 (“A radio is something I can’t talk on and
hear.”).
He often communicates via text messaging.
Id.
At the time of Vicari’s interview, Defendants had an
anti-discrimination policy.
1090-91.
ECF No. 92-20, PageID #s 1063-64,
Defendants were providing annual training on
harassment and discrimination to all employees.
PageID #s 1066-69.
ECF No. 92-20,
The most recent harassment and
discrimination training before Vicari’s interview was in October
2014.
Tsurumaki attended that.
ECF No. 92-6, PageID # 989; ECF
No. 92-20, PageID # 1074.
Tsurumaki’s typical interview process involved going
over in detail a job description with an applicant and asking
the applicant if he or she can perform the duties listed in the
job description.
ECF No. 94-5, PageID # 1202.
Tsurumaki did
not go through the lot attendant job description with Vicari,
have Vicari drive around the lot, or have Vicari test the twoway radio.
Id. at 1236-37; ECF No. 94-6, PageID # 1252.
Tsurumaki told Vicari that his application would be
kept on file.
ECF No. 94-6, PageID # 1251 (Defendants’
responses to the EEOC’s requests for admissions).
6
Cutter Mazda
had at least one detailer position available between July 14,
2015, and August 3, 2015.
Id. at 1252.
Defendants did not
inform Vicari that a detailer position was available during this
time.
Id. at 1253.
Cutter Mazda hired two individuals for
detailer positions that were available on August 3, 2015.
Neither individual had a hearing impairment.
Id. at 1252. 1
Vicari later applied for and got a janitor/custodian
position with Network Enterprises, Inc.
The responsibilities of
the janitor/custodian position include cleaning and supplying
buildings, as well as driving company vehicles to work sites.
ECF No. 94-11, PageID # 1275.
Vicari passed a pre-employment
physical exam and was found capable of performing the work
required for that position.
B.
ECF No. 94-8, PageID # 1258.
Procedural Background.
On August 4, 2015, Vicari submitted to the EEOC a
Charge of Discrimination against Cutter Mazda (“Charge”),
stating:
I.
On June 24, 2015, I applied for a
position as Auto Detailer with Respondent.
On that same day, I met with Assistant
Manager, Guy Tsurumaki, who told me that I
could not be hired because I am deaf. He
1
Defendants admitted this in their responses to the EEOC’s
requests for admissions. In his deposition, however, Tsurumaki
stated that one of these individuals was technically hired as a
car washer, not a detailer, and said that “the only difference
is how they get paid.” ECF No. 133-4, PageID #s 2245-47. At
the hearing on July 8, 2019, the EEOC also asserted that a car
washer’s responsibilities do not include driving.
7
also told me that I would be a liability and
that I should “look for another field.”
II. I was told that I was not hired because
of my disability.
III. I believe I have been discriminated
against because of my disability, in
violation of the Americans with Disabilities
Act of 1990, as amended.
ECF No. 92-7.
On August 31, 2015, Cutter Mazda responded to the
Charge with its Statement of Position, denying the allegations
of discrimination.
ECF No. 92-8.
On May 26, 2017, the EEOC issued a letter of
determination (“Determination Letter”), which stated:
After an examination of the evidence
obtained in the Commission’s investigation,
. . . the Commission has determined that
there is reasonable cause to believe that
the Charging Party was denied hired because
of a disability, as defined under the ADA.
In like and related matters, the Commission
determined Respondent failed to provide a
reasonable accommodation to Charging Party
because of a disability, as defined under
the ADA. Further, the Commission found that
Charging Party was denied hire based on a
perceived disability.
Therefore, I have concluded that the
evidence is sufficient to establish a
violation of the statute under the [ADA].
ECF No. 92-14, PageID #s 1019-20.
The Determination Letter
invited Defendants and Vicari “to join with [the EEOC] in a
collective effort toward a just resolution of this matter,” and
8
stated that an EEOC investigator would be contacting them
shortly “to begin conciliation discussions.”
Id. at 1020.
On July 31, 2017, the EEOC filed a complaint alleging
that Defendants had violated the ADA by failing to hire Vicari
based on his actual and perceived hearing disability.
1.
ECF No.
On October 23, 2017, Defendants moved to stay the action,
arguing that the EEOC had failed to engage in the requisite
conciliation process under 42 U.S.C. § 2000e-5(b), and moved to
dismiss the complaint for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
ECF Nos. 18,
18-1.
In an order filed on January 24, 2018, this court
declined to stay the proceedings, concluding that Defendants had
not put forth credible evidence indicating that the EEOC had
failed to conciliate.
However, the court dismissed the
complaint for failing to allege facts showing that Vicari is a
“qualified individual” under the ADA.
ECF No. 26.
The EEOC
filed a First Amended Complaint (“Complaint”) on February 14,
2018.
III.
ECF No. 27.
STANDARD OF REVIEW.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Addisu v. Fred Meyer, Inc., 198 F.3d
9
1130, 1134 (9th Cir. 2000).
The movant must support his or her
position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P.
56(c).
One of the principal purposes of summary judgment is
to identify and dispose of factually unsupported claims and
defenses.
(1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an
essential element at trial.
See id. at 323.
A moving party
without the ultimate burden of persuasion at trial--usually, but
not always, the defendant--has both the initial burden of
production and the ultimate burden of persuasion on a motion for
summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
10
that it believes demonstrate the absence of any genuine issue of
material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp., 477 U.S. at 323).
“When the moving party has
carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the
material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The
nonmoving party must set forth specific facts showing that there
is a genuine issue for trial.
630.
T.W. Elec. Serv., 809 F.2d at
“A scintilla of evidence or evidence that is merely
colorable or not significantly probative does not present a
genuine issue of material fact.”
Addisu, 198 F.3d at 1134.
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
809 F.2d at 631.
T.W. Elec. Serv.,
Inferences may be drawn from underlying facts
not in dispute, as well as from disputed facts that the judge is
required to resolve in favor of the nonmoving party.
Id.
When
“direct evidence” produced by the moving party conflicts with
“direct evidence” produced by the party opposing summary
judgment, “the judge must assume the truth of the evidence set
forth by the nonmoving party with respect to that fact.”
11
Id.
IV.
ANALYSIS.
The ADA prohibits certain employers from
“discriminat[ing] against a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.”
42 U.S.C. § 12112(a).
A plaintiff asserting disparate treatment under the
ADA may prove that claim at the summary judgment stage in two
ways.
First, the plaintiff may apply the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).
See Raytheon Co. v. Hernandez, 540 U.S. 44, 51–55
(2003) (applying the McDonnell Douglas burden-shifting framework
to a disparate treatment claim asserted under § 12112(a) of the
ADA).
Second, a plaintiff may prove disparate treatment by
producing direct or circumstantial evidence demonstrating that a
discriminatory reason more likely than not motivated the
employer.
See Tsuji v. Kamehameha Sch., 154 F. Supp. 3d 964,
973 n.7 (D. Haw. 2015); see also Surrell v. Cal. Water Serv.
Co., 518 F.3d 1097, 1105 (9th Cir. 2008).
The EEOC is
proceeding under the latter option, arguing that “there is
direct evidence that Defendants violated the ADA as they admit
they failed to hire Ryan Vicari due to his deafness.”
93, PageID # 1135 (capitalizations omitted).
12
ECF No.
To establish a prima facie case of employment
discrimination under the ADA, the EEOC must show that
“(1) [Vicari] is a disabled person within the meaning of the
statute; (2) he is a qualified individual with a disability; and
(3) he suffered an adverse employment action because of his
disability.”
See Hutton v. Elf Atochem N. Am., Inc., 273 F.3d
884, 891 (9th Cir. 2001).
The court addresses each element below and concludes
that several factual disputes remain for trial.
As a result,
neither party is entitled to summary judgment on the EEOC’s ADA
claims.
However, the court grants summary judgment to the EEOC
with respect to three defenses.
Finally, the court denies
Defendants’ request to stay the case because Defendants have not
demonstrated that the EEOC failed to satisfy its conciliation
requirements.
A.
First Element: Disabled Person.
Under the ADA, the term “disability” is defined as:
(A) a physical or mental impairment that
substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an
impairment (as described in [42 U.S.C.
§ 12102(3)]).
13
42 U.S.C. § 12102(1).
The ability to hear is considered a
“major life activity” under subsection (A).
See id.
§ 12102(2)(A).
Vicari is deaf, and his deafness qualifies as a
physical impairment to his ability to hear.
See 29 C.F.R.
§ 1630.2(j)(3)(iii) (“[I]t should be easily concluded that the
following types of impairments will, at a minimum, substantially
limit the major life activities indicated: Deafness
substantially limits hearing[.]”).
Defendants do not dispute
that Vicari is disabled for purposes of the ADA.
B.
Second Element: Qualified Individual.
A qualified individual is “an individual who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires.”
42 U.S.C. § 12111(8).
An individual is qualified
if he or she “satisfies the requisite skill, experience,
education, and other job-related requirements of the employment
position” he seeks.
29 C.F.R. § 1630.2(m).
“Essential functions” are “the fundamental job duties
of the employment position that the individual with a disability
holds or desires.”
Id. § 1630.2(n)(1).
The term does not
include “the marginal functions of the position.”
Id.
Job
functions may be considered essential for several reasons,
including the following:
14
(i) The function may be essential because
the reason the position exists is to perform
that function;
(ii) The function may be essential because
of the limited number of employees available
among whom the performance of that job
function can be distributed; and/or
(iii) The function may be highly specialized
so that the incumbent in the position is
hired for his or her expertise or ability to
perform the particular function.
Id. § 1630.2(n)(2).
Evidence of whether a particular function is essential
includes:
(i) The employer’s judgment as to which
functions are essential;
(ii) 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. § 1630.2(n)(3).
However, “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
15
including it in a job description.”
Cripe v. City of San Jose,
261 F.3d 877, 887 (9th Cir. 2001) (quoting Echazabal v. Chevron
USA, Inc., 226 F.3d 1063, 1071 (9th Cir. 2000)).
The parties dispute whether Vicari was a qualified
individual with respect to the detailer position and the lot
attendant position.
There are factual disputes as to whether
Cutter Mazda had a detailer position available and whether
Vicari was capable of performing the essential functions of a
detailer.
The court is also unable to determine on the present
record whether Vicari was capable of performing the essential
functions of a lot attendant.
1.
Detailer Position.
a.
Availability of Position.
Defendants argue that the court should grant summary
judgment in their favor because no detailer position was
available at the time of Vicari’s interview.
PageID #s 931-33.
ECF No. 91-1,
They point to Tsurumaki’s deposition, in
which he recalled explaining to Vicari and Patricia that Cutter
Mazda did not have any detailer opening.
ECF No. 94-5, PageID
#s 1226-27.
A plaintiff alleging disparate treatment in hiring
“must prove by a preponderance of the evidence that she applied
for an available position for which she was qualified, but was
rejected under circumstances which give rise to an inference of
16
unlawful discrimination.”
Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981) (emphasis added); see also
Sisson v. Helms, 751 F.2d 991, 995 (9th Cir. 1985) (affirming
dismissal of a handicap discrimination claim because “[t]he
district court’s finding that [the plaintiff] failed to prove
that there were jobs available at the Airways Facilities
Division is supported by the evidence and was not clearly
erroneous”).
A job is available if it is “a job for which the
employer is seeking applicants.”
McLean v. Phillips-Ramsey,
Inc., 624 F.2d 70, 71 (9th Cir. 1980) (per curiam); see also
Burdine, 450 U.S. at 253 n.6.
Defendants’ argument is unpersuasive for two reasons.
First, it is not clear whether a detailer position was available
when Vicari was interviewed.
Tsurumaki contends that no
detailer position was available.
While that might explain why
Tsurumaki allegedly discussed the alternative of a lot attendant
position, Vicari says that he was never told about a lot
attendant position.
ECF No. 131-13, PageID # 2094.
Patricia
recalls that Tsurumaki asked Vicari during the interview whether
he was “here for the detailing” and whether he “like[d] working
with cars, cleaning cars and all that.”
# 2030.
ECF No. 131-8, PageID
Edwards stated that applications for nonopen positions
would be sent to HR and that it was “rare” to do interviews for
nonopen positions because it “would have been a waste of my time
17
and the applicant’s time.”
ECF No. 131-10, PageID # 2054.
In
short, there are differing accounts about whether Vicari was
indeed interviewed for a detailer position.
Second, for a job to be considered available, it need
not necessarily be available on the day of the interview.
See
McLean, 624 F.2d at 72 (“A vacancy need not exist on the day an
applicant applies for a job.”).
Cutter Mazda’s application form
states, “[T]his application for employment is valid for a threemonth period after submission.”
ECF No. 94-3.
Vicari was
interviewed on June 24, 2015, and Tsurumaki told Vicari that his
application would be kept on file.
See ECF No. 94-6, PageID
# 1251.
Defendants concede that Cutter Mazda had at least one
detailer position available roughly three weeks later on July
14, 2015.
Id. at 1252.
Defendants did not inform Vicari that a
detailer position was available during this time.
Id. at 1253.
Cutter Mazda hired two individuals without hearing disabilities
for detailer positions on August 3, 2015.
Id. at 1252.
This
evidence cuts against a finding that the detailer position was
unavailable.
In McLean v. Phillips-Ramsey, Inc., the Ninth
Circuit concluded that “an employment opportunity did arise
during the time [the plaintiff’s] application was on file with
the agency” because “[a]bout a month after the interview, the
agency did hire a nonblack production artist.”
18
624 F.2d at 72;
accord EEOC v. Farmer Bros. Co., 31 F.3d 891, 900 (9th Cir.
1994) (rejecting the defendant’s argument that a machine
operator position was unavailable when the plaintiff applied
because “[t]he district court found that there were several
machine operator openings filled during the 6-month period in
which [the plaintiff’s] application was active”); Lowe v. City
of Monrovia, 775 F.2d 998, 1006 (9th Cir. 1985) (concluding that
a position was available when “there was an opening after the
time [the plaintiff] completed the application process” that was
subsequently filled).
At the hearing on July 8, 2019, Defendants argued that
McLean is distinguishable from this case because the plaintiff
in McLean sent a follow-up letter to the employer-agency after
his interview, and Vicari did not send a letter to Cutter Mazda.
The Ninth Circuit in McLean stated, “McLean’s application for
employment, submitted to the agency in early 1972, should have
been treated as viable for a reasonable period of time,
especially in light of the follow-up letter he mailed to the
agency soon after his interview.”
added).
624 F.2d at 72 (emphasis
While the follow-up letter supported the Ninth
Circuit’s conclusion that an employment opportunity existed, the
Ninth Circuit did not indicate that the letter was dispositive.
Defendants also urge this court not to rely on McLean
in light of Gay v. Waiters’ and Dairy Lunchmen’s Union, Local
19
No. 30, 694 F.2d 531 (9th Cir. 1982).
# 2444.
ECF No. 137, PageID
In Gay, the Ninth Circuit explained that McLean created
a “very narrow and specific exception” if there are
“circumstances where, due to the specific facts involved, some
flexibility is required in determining whether, as a practical
matter, a job opening occurring after an application is made is
an open position under McDonnell Douglas.”
694 F.2d at 548.
When referencing McDonnell Douglas, the Ninth Circuit was
referring to the second element of a prima facie case of
disparate treatment: “that [the plaintiff] was qualified for a
job for which the employer was seeking applicants.”
Se 694 F.2d
at 538 n.5 (quoting McDonnell Douglas, 411 U.S. at 802). 2
Gay held that black waiters had failed to establish a
prima facie case of international discrimination because they
“failed to establish the date upon which they applied, and . . .
failed to establish that any black applicant applied at the time
a job was open or, if the McLean exception were to apply, that a
job vacancy occurred within a reasonable time.”
Id.
Unlike the
waiters in Gay, the EEOC has presented evidence that Vicari
applied for a detailer position on June 24, 2015, and that a
2
Neither McLean nor Gay directly addressed a case in which a
plaintiff relies on direct or circumstantial evidence to prove
disparate treatment. However, McLean and Gay are still
applicable because whether or not a plaintiff proceeds under the
McDonnell Douglas burden-shifting doctrine, the plaintiff must
establish a prima facie case. See McGinest v. GTE Serv. Corp.,
360 F.3d 1103, 1121-24 (9th Cir. 2004).
20
detailer position became available within three weeks of his
interview.
Defendants do not establish that McLean is
inapposite given the evidence in the record.
The court declines to grant Defendants’ motion for
summary judgment based on the unavailability of the detailer
position.
b.
Essential Job Functions.
The EEOC argues that the evidence indisputably
demonstrates that Vicari was capable of performing the essential
functions of a detailer.
ECF No. 93, PageID #s 1138-40.
Based
on the detailer job description and Tsurumaki’s deposition
testimony, the essential job functions of the detailer position
included cleaning the cars and driving them around the
dealership.
ECF No. 94-9, PageID # 1266; ECF No. 94-5,
PageID #s 1204-05.
The EEOC submitted evidence that Vicari was
capable of performing the work for a janitor/custodian position
at Network Enterprises, Inc., and that that position required
him to clean buildings and drive company vehicles to work sites. 3
3
Defendants argue that the job description of the
janitor/custodian position is inadmissible hearsay. ECF No.
132, PageID # 2198. However, the job description was
authenticated as a business record in the accompanying
declaration by Sharon Domingo of Network Enterprises, Inc. See
ECF No. 94-11, PageID # 1274 (“This job description was kept,
and continues to be kept, in the regular course of business.
This job description was made, in the regular course of
business, at or near the time it was created by a person with
knowledge of these matters.”). The court may therefore consider
the job description. See Fed. R. Evid. 803(6).
21
ECF No. 94-8, PageID # 1258; ECF No. 94-11, PageID # 1275.
Further, Tsurumaki knew that Vicari had a driver’s license and
could drive.
ECF No. 94-5, PageID # 1225.
Defendants argue that Vicari was not qualified for the
detailer position because there is no evidence that Vicari could
drive a car with manual transmission.
# 2189.
ECF No. 132, PageID
The detailer job description states that detailers
“must be able to operate various cars and light trucks with both
an automatic and manual transmission.”
ECF No. 94-9.
It is unclear whether Cutter Mazda required
its detailers to be able to drive a manual car at the time of
application, given evidence that Cutter Mazda provided training
on how to drive a manual car.
Tsurumaki stated that, during his
“typical interview process,” he asked whether an applicant could
drive a manual car.
ECF No. 94-5, PageID # 1202.
When asked if
applicants had to be able to do that before being hired,
Tsurumaki responded, “Not necessarily.
to, if they don’t know.”
Id.
We’ll teach them also
The EEOC also submitted a
declaration of Anthone Higuchi Reformina, who contends that,
during his interview for a lot attendant position, “Tsurumaki
was made aware that I could not operate a vehicle with a manual
transmission and he expressed that I would be taught how to do
so.”
ECF No. 138-8.
Reformina states that he was offered the
22
position and was taught by other lot attendants how to drive a
manual car.
See id.
However, Edwards asserted that Cutter Mazda does not
provide such training:
Q.
Is it a requirement to know how to
drive manual transmission?
A.
If you’re going to be a lot attendant
and you’re going to be a detailer,
absolutely.
Q.
So there’s no training at all for your
department that you would provide for
manual--to drive a manual-A.
The liability would be crazy. It would
be [a] financial and [] physical liability.
ECF No. 133-6, PageID #s 2292-93.
While Vicari does not know how to drive a manual car,
the evidence does not conclusively establish that that skill was
an essential job function for detailers.
A genuine dispute
exists as to whether Vicari was capable of performing all
essential job functions for the detailer position. 4
4
Defendants additionally argue, “Even if Mr. Vicari could drive
a manual transmission, there is an issue of fact as to whether
he was qualified for the detailer position in light of his thenrecent traffic violations.” ECF No. 132, PageID # 2190 (citing
ECF No. 133-14). While Edwards stated that speeding tickets or
other traffic violations could jeopardize the chances of being
hired by Cutter Mazda, see ECF No. 113-6, PageID # 2282, there
is no evidence demonstrating that having a clean traffic record
was an essential job requirement for a detailer.
23
2.
Lot Attendant Position.
Defendants argue that the EEOC should not be allowed
to argue that Vicari qualified for a lot attendant position.
Defendants say that the “contention that Defendants
discriminated against Mr. Vicari in denying him hire for the
service lot attendant position goes beyond the scope of the
Complaint.”
omitted).
ECF No. 132, PageID # 2193 (capitalizations
The EEOC made the alternative argument that Vicari
was qualified for the lot attendant position in rebuttal to
Defendants’ argument that Vicari was interviewed only for the
lot attendant position.
Under these circumstances, the court
does not grant summary judgment to Defendants on this point.
a.
Essential Job Functions.
The EEOC argues that Vicari was capable of performing
the essential job functions of a lot attendant because those
functions, such as cleaning and driving cars, are similar to
those required for the detailer position.
#s 1140-41.
ECF No. 93, PageID
As discussed above, it is unclear whether Vicari
was qualified for the detailer position.
Even if he were, the
lot attendant position differs from the detailer position in at
least one respect--the frequent use of two-way radios.
There is evidence in the record indicating that the
ability to use a two-way radio is an essential job function for
lot attendants.
Tsurumaki explained that lot attendants spend a
24
“[g]ood 80 percent of the day” communicating with each other and
other workers at the dealership by two-way radio.
4, PageID # 2254.
ECF No. 133-
Tsurumaki stated that radios are used
“constantly” and “if it’s not one person it’s another calling in
and requesting some kind of something to be done by them.”
at 2254-55.
Id.
Further, the job descriptions for the opener and
main shuttle shifts state that use of two-way radios is part of
a lot attendant’s responsibilities.
ECF No. 94-12, PageID
#s 1276-77 (stating that responsibilities include “[a]ssist[ing]
with customer pickups when called out using the [two-way] radio”
and “driv[ing] with care at all times--radio is to be off,
absolutely no use of personal cell phones”).
Even the closer
shift requires lot attendants to “return [two-way] radio[s] onto
[the] charging station,” suggesting that closers use the radios
in some capacity.
Id. at 1276-78.
Vicari stated that “[a] radio is something I can’t
talk on and hear.”
ECF No. 133-15, PageID # 2335 (“I could
talk, but they could talk back to me and I’m not going to be
able to hear them because I’m deaf.”).
At the hearing on July
8, 2019, the EEOC noted that a medical professional had
determined that Vicari could hear words whispered at 20 feet
away.
The EEOC referred to a pre-employment physical exam in
which a nurse found Vicari capable of performing the duties of a
janitor/custodian with Network Enterprises, Inc.
25
ECF No. 94-8,
PageID # 1258.
The records from that exam state, “Whisper test
at 20 ft: R 5/5 words, L 5/5 words.”
Id. at 1263.
The nurse
stated that this test “tested his ability to hear and repeat
whisper words at a distance of twenty (20) feet.”
58.
Id. at 1257-
While this evidence indicates that Vicari could hear
sounds, it does not establish that Vicari could make out
instructions communicated via two-way radio.
Given the differing pieces of evidence in the record
relating to whether Vicari was capable of performing all
essential functions of the lot attendant position, the EEOC is
not entitled to summary judgment with respect to a possible lot
attendant position unless the EEOC shows that an alternative to
use of the two-way radio was feasible.
b.
Reasonable Accommodations.
The EEOC argues that “small accommodations . . . were
already being used by Cutter employees as alternate methods of
communicating (use of text rather than the two-way radio, verbal
communication and tooting the horn)” and that those
accommodations “could have easily allowed Ryan Vicari to
communicate regarding the actual essential functions at issue
(i.e. when he was needed to either assist with customer pick up
or responding with location and arrival time).”
PageID # 1145.
26
ECF No. 93,
“Determining whether a proposed accommodation . . . is
reasonable, including whether it imposes an undue hardship on
the employer, requires a fact-specific, individualized inquiry.”
Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir.
1999) (citation omitted).
“Undue hardship” means “significant
difficulty or expense incurred by a covered entity” when
considered in light of the following factors:
(i) The nature and net cost of the
accommodation needed under this part, taking
into consideration the availability of tax
credits and deductions, and/or outside
funding;
(ii) The overall financial resources of the
facility or facilities involved in the
provision of the reasonable accommodation,
the number of persons employed at such
facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the
covered entity, the overall size of the
business of the covered entity with respect
to the number of its employees, and the
number, type and location of its facilities;
(iv) The type of operation or operations of
the covered entity, including the
composition, structure and functions of the
workforce of such entity, and the geographic
separateness and administrative or fiscal
relationship of the facility or facilities
in question to the covered entity; and
(v) The impact of the accommodation upon the
operation of the facility, including the
impact on the ability of other employees to
perform their duties and the impact on the
facility’s ability to conduct business.
27
29 C.F.R. § 1630.2(p).
In the summary judgment context, “courts
should weigh the risks and alternatives, including possible
hardships on the employer, to determine whether a genuine issue
of material fact exists as to the reasonableness of the
accommodation.”
Nunes, 164 F.3d at 1247 (citations omitted).
Defendants argue that the EEOC may not raise the issue
of reasonable accommodation because the EEOC “affirmatively
stated that it is not pursuing a reasonable accommodation
claim.”
ECF No. 132, PageID # 2194.
Indeed, in its opposition
to Defendants’ earlier motion to stay, the EEOC said that “the
EEOC’s Complaint does not contain an allegation regarding the
denial of a reasonable accommodation.”
# 118.
But Defendants misread the EEOC’s position as exhibiting
an “ever changing theory of the case.”
# 2194.
ECF No. 20, PageID
See ECF No. 132, PageID
The EEOC is not now raising a claim based on the denial
of a reasonable accommodation.
The EEOC is instead attempting
to demonstrate that Vicari is a “qualified individual,” meaning
“an individual who, with or without reasonable accommodation,
can perform the essential functions” of the job in question.
U.S.C. § 12111(8) (emphasis added).
The issue of whether a
reasonable accommodation would have allowed Vicari to perform
the essential functions of a lot attendant is properly before
this court precisely because, as part of establishing a prima
28
42
facie case of discrimination, the EEOC has the burden of proving
that Vicari is qualified.
Defendants further argue that texting is not a viable
alternative to using a two-way radio.
# 2199.
ECF No. 132, PageID
Edwards explained that lot attendants often listen on
two-way radios for the cashier’s instructions regarding the
customers’ car needs, and the cashier “is going to call up two,
three, four, five cars at [a] time as the customer is at [the]
window.”
ECF No. 133-6, PageID # 2297.
Edwards also explained
that texting may cause customers to think poorly of Cutter Mazda
employees:
Q.
But that’s never been tried, the
texting?
A.
Well, because they frown on using your
phone during work. You weren’t supposed to
be using your cell phone for personal, you
know, or anything you’re supposed to be using
your phone on. How would they know if you’re
making a personal text or a work text, you
know?
Q.
But the work text would be from the
[sic]?
A.
It’s all about perceptions and what
customers see. Customers see you standing
there on your phone, they think you’re
playing on your phone. But . . . you know,
if they can hear the cashier saying I need
tag 4646, blue Mustang, customer knows that
that’s what that lot attendant’s doing, and
what he’s--what his job is doing in bringing
up that car.
Id. at 2300.
29
Defendants also emphasize that the EEOC’s own
investigation produced evidence that texting would not be a
reasonable accommodation.
ECF No. 132, PageID # 2201.
Defendants point to a summary of the EEOC’s phone interview with
Wally Soares, owner of Island Skill Gathering, a company that
provides disabled persons with assistive technology.
133-18.
ECF No.
That summary provides:
I then asked Mr. Soares about texting
technology that currently exists. He stated
that there is no such technological
attachment that would enable a push-to-talk
walkie-talkie to convert talk to text and
vice versa that would facilitate to
communication effectively for a hearing
impaired individual. The only option Mr.
Soares recommended would be to replace the
push-to-talk walkie-talkies with a smart
phone (or something similar) that allows
texting. Mr. Soares further explained that
texting is the preferred method of
communication in the “deaf community,” but
he also recognized that it would place an
undue hardship on an employer to be forced
to replace an established viable
communication system with smart phones to
accommodate one employee.
Id.
It is not clear to this court that the summary is in
admissible form; it appears to be hearsay.
however, deem that dispositive.
The court does not,
The court recognizes Soares
himself might testify at trial such that any hearsay issue could
be eliminated.
But the court questions whether Soares has a
basis for opining on what might constitute an undue hardship for
30
an employer.
Certainly the record includes no evidence that he
does.
Given the state of the evidence, the EEOC is not
entitled to summary judgment on whether Vicari was qualified for
a lot attendant position.
But the denial of summary judgment to
the EEOC on that issue does not translate into a grant of
summary judgment to Defendants on the same issue.
In the first
place, Defendants have not sought summary judgment on that
ground.
In the second place, the record does not include
admissible evidence showing the undue hardship that Soares
hypothesized would attend any conversion from two-way radios to
smart phones.
Edwards also expressed concern that texting would
be misconstrued by customers as personal use of smart phones,
but the basis of this concern is not in the record.
Because
customers could see Vicari react to texts in a work-related
manner, it is not at all clear that Edwards’s concern is factbased, or that it could not be addressed by posting signs saying
that employees are permitted to use cell phones only for workrelated purposes.
And there is no evidence as to how much
longer texts might take than speaking, especially as shorthand
conventions could be adopted.
In short, factual issues preclude
summary judgment to Defendants on the “qualified individual”
element.
31
C.
Third Element: Adverse Employment Action.
1.
Direct Evidence of Discrimination.
The EEOC argues that there is direct evidence that
Vicari was denied a position at Cutter Mazda because of his
actual and perceived deafness.
ECF No. 93, PageID #s 1146-49.
The ADA “outlaws adverse employment decisions
motivated, even in part, by animus based on a plaintiff’s
disability or request for an accommodation--a motivating factor
standard.”
Head v. Glacier Nw. Inc., 413 F.3d 1053, 1065 (9th
Cir. 2005), abrogated on other grounds by Univ. Of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338 (2013).
An individual is perceived
as disabled if he or she is “regarded as having such an
impairment,” meaning that “he or she has been subjected to an
action prohibited under this chapter because of an actual or
perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life
activity.”
42 U.S.C. § 12102(3).
“Direct evidence is evidence ‘which, if believed,
proves the fact of discriminatory animus without inference or
presumption.’”
Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090,
1095 (9th Cir. 2005) (quoting Godwin v. Hunt Wesson, Inc., 150
F.3d 1217, 1221 (9th Cir. 1998)).
Direct evidence “typically
consists of clearly sexist, racist, or similarly discriminatory
statements or actions by the employer.”
32
Id.
EEOC has presented undisputed evidence that Tsurumaki
decided not to hire Vicari at least in part because of his
actual or perceived hearing disability.
Tsurumaki admits that
he told Patricia and Vicari that Vicari’s deafness presented
safety concerns and that Vicari should consider a position in a
different industry.
ECF No. 94-5, PageID #s 1231-33.
Tsurumaki
confirmed that, had Vicari been able to hear, he would have
determined whether Vicari was qualified for the lot attendant
position.
Id. at 1233-34.
Tsurumaki normally reviews the job
description with an applicant and determines whether the
applicant can perform the duties in the description, but
Tsurumaki did not do that with Vicari.
See id. at 1202.
Nor
did Tsurumaki have Vicari drive around the lot or try to use a
two-way radio.
Id. at 1236-37.
Some direct evidence that Vicari was discriminated
against on the basis of his hearing disability has been offered.
See EEOC v. Heartland Auto. Serv., Inc., No. 12-2054-STA-dkv,
2013 WL 6065928, at *2 (W.D. Tenn. Nov. 18, 2013) (concluding
that direct evidence of disability discrimination existed when
the defendant “refused to hire [the plaintiff] based only on the
information that he was deaf” and “did not make an
individualized assessment of [the plaintiff’s] capabilities or
determine if reasonable accommodations were available before
denying employment to [the plaintiff]”).
33
However, given the
factual disputes going to the other elements of the EEOC’s ADA
claim, the court does not grant summary judgment to either
party.
2.
Supervisor Liability.
Defendants argue that they should be granted summary
judgment because, under Vance v. Ball State University, 570 U.S.
421 (2013), Tsurumaki is not a “supervisor” for the purpose of
imputing liability to Defendants.
ECF No. 91-1, PageID # 934.
They argue that Tsurumaki, as Assistant Service Manager, did not
have final authority to make hiring decisions and that he needed
sign-off from the Service Manager.
See id. at 935-36.
In Vance, the Supreme Court decided the question of
“who qualifies as a ‘supervisor’ in a case in which an employee
asserts a Title VII claim for workplace harassment,” holding:
[A]n employer may be vicariously liable for
an employee’s unlawful harassment only when
the employer has empowered that employee to
take tangible employment actions against the
victim, i.e., to effect a “significant
change in employment status, such as hiring,
firing, failing to promote, reassignment
with significantly different
responsibilities, or a decision causing a
significant change in benefits.”
570 U.S. at 423, 431 (quoting Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 761 (1998)).
“[W]here the decision-
making power is confined to a small number of individuals, if
those individuals rely on the recommendations of other workers
who actually interact with the affected employee, ‘the employer
34
may be held to have effectively delegated the power to take
tangible employment actions to the employees on whose
recommendations it relies.’”
Beecham v. Wyndham Vacation
Resorts, Inc., Civ. No. 11-00129 ACK-BMK, 2013 WL 6730755, at *9
(D. Haw. Dec. 18, 2013) (quoting Vance, 570 U.S. at 447).
“[T]angible employment actions can be subject to [approval by
higher management].”
Vance, 570 U.S. at 437 n.8 (citing
Ellerth, 524 U.S. at 762).
This standard for supervisor
liability also applies to disparate treatment claims. 5
See
Beecham, 2013 WL 6730755, at *9 (applying Vance to a disparate
treatment claim under the Age Discrimination in Employment Act).
Defendants fail to demonstrate that they cannot be
vicariously liable for Tsurumaki’s conduct during his interview
of Vicari.
While Tsurumaki may not have had final authority in
all hiring decisions, he conducted initial interviews of
applicants and made recommendations to the Service Manager, who
rarely departed from his recommendations.
#s 1198-1201.
5
ECF No. 94-5, PageID
Edwards stated that, while normally a Service
The EEOC argues that Vance only applies to harassment claims,
not discrimination claims. ECF No. 130, PageID # 1889. The
EEOC contends that “in discrimination cases, it is axiomatic
that adverse actions such as refusal to hire occur within the
scope of employment,” and that courts look to agency principles
to determine the scope of employment. See id. The only case
the EEOC cites in support of this contention is Clamor v. United
States, 240 F.3d 1215 (9th Cir. 2001). Clamor “review[ed] the
scope of employment determination under the [Federal Tort Claims
Act].” 240 F.3d at 1217. It did not hold that Vance is
inapplicable to discrimination claims.
35
Manager signed off on applications, Tsurumaki could do so when
Edwards was unavailable.
ECF No. 131-10, PageID #s 2057-58.
The evidence therefore suggests that Tsurumaki was involved in
and exerted influence over the hiring process at Cutter Mazda.
See Bergene v. Salt River Project Agr. Imp. & Power Dist., 272
F.3d 1136, 1141 (9th Cir. 2001) (“Even if a manager was not the
ultimate decisionmaker, that manager’s retaliatory motive may be
imputed to the company if the manager was involved in the hiring
decision.”); Lakeside–Scott v. Multnomah Cty., 556 F.3d 797, 806
(9th Cir. 2009) (noting that the Ninth Circuit “has affirmed
liability of subordinates who wielded a [] significant degree of
influence over the final decision maker’s adverse employment
decision”).
Defendants are not entitled to summary judgment on the
ground that Tsurumaki was not a supervisor.
As a result, the
court need not address Defendants’ argument that “[i]n the
absence of supervisor liability, the EEOC cannot establish that
Defendants were negligent.”
ECF No. 91-1, PageID # 936
(capitalization omitted).
D.
Defenses.
1.
Direct Threat to Health and Safety.
The EEOC argues that summary judgment should be
granted against Defendants on their affirmative defense that
36
Vicari “posed a direct threat to the health and safety of others
and/or himself.”
ECF No. 28, PageID # 237.
An employer may refuse to hire a disabled individual
who poses “a direct threat to the health or safety of other
individuals in the workplace.”
42 U.S.C. § 12111(3).
42 U.S.C. § 12113(b); see also
A direct threat means “a significant risk
of substantial harm to the health or safety of the individual or
others that cannot be eliminated or reduced by reasonable
accommodation.”
29 C.F.R. § 1630.2(r).
In their opposition to the EEOC’s motion for summary
judgment, Defendants stated that they “do not intend to rely on
their 17th affirmative defense of direct threat and withdraw
that defense.”
ECF No. 132, PageID # 2191.
The court therefore
grants summary judgment to the EEOC with respect to this
defense.
In light of Defendants’ withdrawal of the threat
defense, the EEOC makes additional requests of the court:
As Defendants have withdrawn their direct
threat defense, the EEOC requests that the
Court bar Defendants from presenting
testimony or evidence that they denied Ryan
Vicari hire due to safety concerns as
permitting such without requiring Defendants
to meet the burden of proving direct threat
would thwart the purpose of this defense and
Congressional intent to disallow reliance on
subjective assumptions regarding
disabilities. Finally, this Court should
make an adverse finding (and issue a jury
instruction) on the issue of pretext against
Defendants for proving shifting
37
justifications as to Ryan Vicari’s denial of
hire.
ECF No. 138, PageID #s 2475-76.
These arguments are raised for
the first time in the EEOC’s reply, but they could not have been
made before Defendants filed their opposition.
Nevertheless,
these matters are more suitable for motions in limine or
proposed jury instructions, not as part of the EEOC’s reply
memorandum in support of a motion for summary judgment.
2.
Inability to Reasonably Accommodate
Disability.
The EEOC argues that summary judgment should be
granted against Defendants on their affirmative defense that
“[t]he EEOC’s claims are barred because Defendants were unable
to reasonably accommodate Charging Party’s alleged disability
without undue hardship.”
ECF No. 28, PageID # 236.
Citing
Nunes, the EEOC argues that this defense fails because
“Defendants failed to conduct a fact-specific, individualized
inquiry to determine whether any reasonable accommodation is
appropriate and would impose an undue hardship.”
ECF No. 93,
PageID # 1151.
The EEOC mispresents Nunes.
Nunes describes how a
court determines whether a proposed accommodation is reasonable;
it does not impose a burden on an employer to conduct “a factspecific, individualized inquiry.”
See 164 F.3d at 1247.
court does not grant summary judgment to the EEOC on this
38
The
defense.
Nor can Defendants prevail on this defense at this
point, even if they sought to.
The record clearly raises
factual issues on this point.
3.
Statute of Limitations.
The EEOC argues that summary judgment should be
granted against Defendants on their affirmative defense that
“[t]he EEOC’s claims are barred by the applicable statute of
limitations.”
ECF No. 28, PageID # 234.
The ADA incorporates Title VII’s enforcement
provisions.
See 42 U.S.C. § 12117(a).
“Title VII contains
several distinct filing requirements which a claimant must
comply with in bringing a civil action.”
Valenzuela v. Kraft,
Inc., 801 F.2d 1170, 1172, as amended by 815 F.2d 570 (9th Cir.
1987).
To file a claim under Title VII, a plaintiff must file a
charge with the EEOC within 180 days of the last discriminatory
act, or within 300 days “if the aggrieved person has instituted
proceedings with a state or local agency with authority to grant
or seek relief from such practices.”
See Bouman v. Block, 940
F.2d 1211, 1219 (9th Cir. 1991) (citing 42 U.S.C. § 2000e5(e)).
The Ninth Circuit recently expressed “doubt that the
EEOC is subject to the same strict timing requirements with
respect to exhaustion of remedies in Title VII as a private
party before bringing a class suit.”
Arizona ex rel. Horne v.
Geo Grp., Inc., 816 F.3d 1189, 1208 n.8 (9th Cir. 2016), cert.
39
denied sub nom. Geo Grp., Inc. v. EEOC, 137 S. Ct. 623 (2017).
This is not a class suit, but even if the timing requirements
did apply to this case, Vicari filed his charge of
discrimination on August 4, 2015, within 300 days of his
interview on June 24, 2015.
See ECF No. 92-7; see also 94-6,
PageID # 1245.
The court grants summary judgment to the EEOC on this
defense.
4.
Failure to Exhaust Remedies.
The EEOC argues that summary judgment should be
granted against Defendants with respect to their affirmative
defense that “[t]he EEOC’s claims are barred due to the EEOC’s
and/or Charging Party’s failure to exhaust administrative and/or
other remedies.”
ECF No. 28, PageID # 234.
Prior to bringing a suit, the EEOC must satisfy
certain conditions precedent: “(1) the EEOC must receive a
charge of an unlawful employment practice; (2) the EEOC must
notify the employer of the alleged wrongful act and conduct an
investigation to determine whether there is reasonable cause to
believe the charge is true; (3) the EEOC must engage in
‘informal methods of conference, conciliation, and persuasion’
to eliminate the alleged unlawful practices; and (4) if the
conciliation efforts are unsuccessful, the EEOC must notify the
employer in writing.”
EEOC v. NCL Am., Inc., 536 F. Supp. 2d
40
1216 (D. Haw. 2008) (citing EEOC v. Pierce Packing Co., 669 F.2d
605, 607 (9th Cir. 1982) (quoting 42 U.S.C. § 2000e–5)).
The EEOC has satisfied these steps.
Vicari submitted
his Charge against Cutter Mazda on August 4, 2015, and
Defendants received the EEOC’s Determination Letter on May 26,
2017.
ECF No. 92-7; ECF No. 94-6, PageID # 1248.
This court
has previously declined to rule that the EEOC failed to satisfy
its conciliation obligations.
ECF No. 26.
Defendants have not
shown that a different ruling is now warranted.
The court
grants summary judgment to the EEOC on this defense.
E.
Defendants’ Request to Stay.
As alternate relief, Defendants request that the court
stay the case given the EEOC’s alleged failure to conciliate.
ECF No. 91-1, PageID # 939.
Defendants argue that “[a]t no
point during the investigation or the purported conciliation
process did the EEOC inform Defendants that the basis for the
charges against them was that Mr. Vicari’s hearing impairment
was aided by cochlear implants.”
Id. at 940.
They argue that
the Determination Letter was “impermissibly vague” and failed to
provide Defendants with sufficient notice of the factual
allegations underlying the charges against them.
See id. at
941-47.
Before filing a suit against an employer, the EEOC is
required to “endeavor to eliminate any . . . alleged unlawful
41
employment practice by informal methods of conference,
conciliation, and persuasion.”
42 U.S.C. § 2000e-5(b).
Title
VII empowers a court, in the event of nonconciliation, to “stay
further proceedings for not more than sixty days pending . . .
further efforts of the Commission to obtain voluntary
compliance.”
42 U.S.C. § 2000e-5(f)(1).
“The proponent of a stay bears the burden of
establishing its need.”
Clinton v. Jones, 520 U.S. 681, 708
(1997) (citing Landis v. N. Am. Co., 299 U.S. 248, 255 (1936)).
In Mach Mining, LLC v. EEOC, the Supreme Court discussed how a
court should assess a factual dispute concerning conciliation:
If . . . the employer provides credible
evidence of its own . . . indicating that
the EEOC did not provide the requisite
information about the charge or attempt to
engage in a discussion about conciliating
the claim, a court must conduct the
factfinding necessary to decide that limited
dispute. Should the court find in favor of
the employer, the appropriate remedy is to
order the EEOC to undertake the mandated
efforts to obtain voluntary compliance. See
§ 2000e-5(f)(1) (authorizing a stay of a
Title VII action for that purpose).
135 S. Ct. 1645, 1656 (2015).
The issue of whether the EEOC conciliated is subject
to “narrow” judicial review.
Id.; see also id. at 1652 (noting
that “the statute provides the EEOC with wide latitude over the
conciliation process”).
To satisfy its conciliation obligation,
the EEOC “must tell the employer about the claim--essentially,
42
what practice has harmed which person or class--and must provide
the employer with an opportunity to discuss the matter in an
effort to achieve voluntary compliance.”
Id. at 1652.
In other
words, “the EEOC [must] afford the employer a chance to discuss
and rectify a specified discriminatory practice.”
Id. at 1653.
As the EEOC points out, Defendants previously filed a
motion to stay for failure to conciliate, which this court
denied.
See ECF No. 130, PageID # 1982.
In its order filed on
January 24, 2018, the court identified no insufficiency in the
EEOC’s conciliation efforts.
ECF No. 26, PageID # 196.
The
court explained that “Defendants’ desire for a more detailed
‘factual basis’ underlying the EEOC’s reasonable cause
determination does not alter the analysis”:
Mach Mining expressly held that the EEOC has
no obligation to “lay out ‘the factual and
legal basis for’ all its positions.” 135 S.
Ct. at 1653-54 (citation omitted). Such a
requirement, the Supreme Court explained,
“conflict[s] with the latitude Title VII
gives the Commission” insofar as “Congress
left to the EEOC such strategic decisions as
whether to lay all its cards on the table.”
Id. at 1654. The EEOC did not have to tell
Defendants why the investigation culminated
in the reasonable cause determination; it
only had to--and did--describe what it
thought “the employer ha[d] done” and who
“ha[d] suffered as a result.” See id. at
1656.
ECF No. 26, PageID # 197.
Vicari’s cochlear implant is a fact supporting EEOC’s
claims; it is not a new claim or charge.
43
The EEOC was not
required to provide Defendants with a list of all its factual
allegations during the conciliation process, and Defendants do
not explain how the allegation regarding Vicari’s cochlear
implant would have affected conciliation. 6
Defendants insist that the court’s earlier order is
inapplicable because “Defendants are challenging the sufficiency
of the EEOC’s notice regarding the new charges in the
[Determination Letter] for failure to provide reasonable
accommodation and discrimination based on perceived disability.”
ECF No. 91-1, PageID # 948.
The court understands that
Defendants’ earlier motion argued that the EEOC had failed to
engage in conciliation, while their current motion argues that
Defendants did not receive notice of the cochlear implant during
the conciliation process.
However, the EEOC was permitted to
assert reasonable accommodation 7 and perceived disability claims
in the Determination Letter because those claims would be “like
and reasonably related to” the Charge that alleged
discriminatory failure to hire.
See Geo Grp., 816 F.3d at 1205
6
At the hearing on July 8, 2019, Defendants’ counsel stated
that, had Defendants known about Vicari’s cochlear implant, they
could have taken further steps and determined whether Vicari was
qualified to be a lot attendant or detailer. It is unclear to
the court what these steps would have been and why the cochlear
implant would have prompted them. There is nothing in the
record suggesting how Vicari’s cochlear implant might have
affected his job qualifications.
7
As explained above, the EEOC’s Complaint does not actually
include a claim for the denial of a reasonable accommodation.
44
(“ EEOC could assert an employee’s discriminatory layoff claim as
it was ‘like and reasonably related to’ [the employee’s] charge
which alleged discriminatory failure to recall and rehire.”
(quoting Farmer Bros., 31 F.3d at 899)).
Defendants argue that EEOC v. Amsted Rail Co., Inc.,
169 F. Supp. 3d 877 (S.D. Ill. 2016), and EEOC v. PC Iron, Inc.,
316 F. Supp. 3d 1221 (S.D. Cal. 2018), support its position that
a stay should be granted.
ECF No. 91-1, PageID #s 945-46.
Defendants’ reliance on these cases is unavailing.
In Amsted Rail, the defendant argued that the EEOC had
not satisfied the conciliation requirements because it had
failed to inform the defendant of the specific allegations
against it.
See 169 F. Supp. 3d at 884.
The court was “given
pause” because neither the charge nor the determination letter
explained what disability served as the basis for the
defendant’s alleged discriminatory conduct.
See id. at 885.
The court nonetheless concluded that the EEOC had provided
adequate notification given the “other statements from the EEOC”
to the defendant.
See id.
Unlike the documents in Amsted Rail,
Vicari’s Charge identified his disability and included the
allegation that Defendants discriminated against him “because I
am deaf.”
ECF No. 92-7.
Defendants have not cited any law
requiring the EEOC to list all factual allegations related to
45
Vicari’s hearing disability to satisfy the conciliation
requirements under Mach Mining.
In PC Iron, the defendant raised an affirmative
defense that the EEOC’s claims were barred for failure to
conciliate a hostile work environment claim.
According to the
court, the determination letter included a “vague and conclusory
statement” that “there was ‘evidence that [the plaintiff] was
subjected to a hostile work environment,’” and the plaintiff’s
charge did not “allege a hostile work environment or make any
allegations other than that she was terminated because of her
sex and pregnancy.”
316 F. Supp. 3d at 1232.
Nonetheless, the
court concluded that “because [the defendant] was already aware
of [the plaintiff’s] allegations based on the charge of
discrimination, and based on evidence that [the defendant] in
fact made an offer to resolve the matter in response . . . , the
EEOC’s efforts to conciliate the discrimination charge survives
the ‘relatively barebones review’ required of the Court.”
(quoting Mach Mining, 135 S. Ct. at 1656).
Id.
This conclusion in
PC Iron, reached despite the court’s misgivings about the
determination letter and charge, emphasizes the narrow scope of
judicial review of the EEOC’s conciliation efforts.
Moreover,
the defendant in PC Iron was unaware of any allegations relating
to a hostile work environment.
Here, by contrast, any
reasonable accommodation claim or perceived disability claim
46
would arise out of the same allegations as the “actual
disability” claim--i.e., that Tsurumaki decided not to hire
Vicari given his hearing disability.
Defendants’ request for a stay is denied.
V.
CONCLUSION.
The EEOC’s motion for summary judgment is granted with
respect to Defendants’ defenses that Vicari posed a direct
threat to the health and safety of himself and others, that the
EEOC’s claims are barred by the applicable statute of
limitations, and that the EEOC failed to exhaust administrative
remedies prior to filing suit.
The remainder of the EEOC’s
summary judgment motion is denied.
Defendants’ motion for
summary judgment is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 11, 2019.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
U.S. Equal Employment Opportunity Commission v. MJC, Inc. et
al., Civ. No. 17-00371 SOM-WRP; ORDER (1) GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
(2) DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.
47
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