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 Act’s (ADA) workplace protections—the distinction between a job’s “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 employee’s “disability” rather than her “ability” to get the job done. This misinterpretation of “essential job function” conflicts with the ADA’s 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 Court’s 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 Court’s 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 Court’s 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 and whether she was disciplined and discharged in retaliation for having complained of discrimination?
STATEMENT OF FACTS
Picture People’s 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. Chrysler’s manager described it 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 People’s 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 Chrysler’s 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 studio’s 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 infant’s six-month pictures, the Krols returned and asked for 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 manager—asking if her lack of hours was because she was deaf—and 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; II-Apx.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 Chrysler’s 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 perform the essential job function of verbal communication and that the EEOC’s evidence was insufficient as a matter of law to demonstrate that Picture People’s 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 People’s 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 EEOC’s termination and retaliation claims failed on the same basis, finding no prima facie case or evidence of “pretext” because, in the majority’s view, Picture People correctly concluded Chrysler could not perform an 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 [Chrysler’s] inability to interact verbally with customers—an essential function of the performer job.” Id. at 12.
Judge Holloway, in dissent, said he would have reinstated the Commission’s claims of discrimination and retaliation. Judge Holloway reasoned that the majority, by ignoring the EEOC’s 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 People’s 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 EEOC’s retaliation claim “even stronger than [the] claim of discrimination.” Dis. at 19. Judge Holloway stated that the majority ignored the EEOC’s direct evidence of Picture People’s 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.
ARGUMENT
1. The majority’s ruling that oral communication is an “essential job function” of a Performer conflicts with the ADA’s language and legislative history. The majority’s flawed analysis on this question of “essential job function” also conflicts with this Court’s decisions in Davidson, Bartee, and Kellogg and the Third Circuit’s decision in Skerski. The majority’s ruling will thwart the ADA’s workplace protections by excluding whole categories of persons with disabilities from coverage under the ADA simply because the employer decrees that a job’s essential functions must be performed in a certain manner, irrespective of whether the employer’s 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 ADA’s 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 job’s essential functions, the ADA requires an employer to provide the accommodation (as long as doing so will not impose undue hardship on the operation of the employer’s 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 Commc’ns, Inc., 357 F.3d 1114, 1122-23 (10th Cir. 2004). If no reasonable accommodation will enable a person with a disability to perform the job’s essential functions, the person is not “qualified” under the ADA and cannot invoke the ADA’s protections. See id. at 1124-25.
Since coverage under the ADA depends on an individual’s ability to perform a job’s 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 [employer’s] 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 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 company’s desired result per se, but are simply a means of achieving the company’s desired results of “quality portraits” and “high sales.” Indeed, Picture People recognizes this distinction in its formal job description, describing a Performer’s “job duties” as including “[m]akes customers feel welcome,” “[a]ssists customers by scheduling appointments, providing . . . information, and answering 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), 12113(a); see also 29 C.F.R. §§ 1630.10, 1630.15(c). Under this analysis, 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 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 company’s desired manner of performance (i.e., here, oral communication) into an essential function of the job. The majority’s 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 EEOC’s evidence and decided—as 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 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 job—exactly the sort of stereotype the ADA was enacted to prevent. The EEOC, in contrast, offered evidence that Chrysler was able to—and did—perform 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 People’s 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 company’s 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.
The majority’s explanation for discounting this evidence—that it “does not reveal a genuine issue of material fact that would require submission to a jury,” Maj. at 18—is plainly incorrect. The panel wrongly decided disputed facts that properly should go to a jury, in contravention of this Court’s 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 employer’s 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 EEOC’s 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 Chrysler’s complaint and the company’s 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 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 employer’s 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 employer’s “numerous grounds” for terminating plaintiff’s 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 Court’s decisions.
Respectfully submitted,
P. DAVID LOPEZ /s/ Susan R. Oxford
General Counsel SUSAN R. OXFORD, Attorney
CAROLYN L. WHEELER Equal Employment Opportunity Comm’n
Acting Associate General Counsel 131 M Street, N.E.
Washington, D.C. 20507
LORRAINE C. DAVIS (202) 663-4791; Fax: (202) 663-7090
Assistant
General Counsel susan.oxford@eeoc.gov
CERTIFICATE OF COMPLIANCE
The EEOC’s 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
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 Court’s electronic case filing (ECF) system, and served it on counsel for The Picture People, Merrily S. Archer, Esq., using the Court’s ECF system. I further certify that, pursuant to this Court’s local rules, I will file with this Court an original and 18 copies of the EEOC’s 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