Equal Employment Opportunity Commission v. Picture People, Inc.

684 F.3d 981, 26 Am. Disabilities Cas. (BNA) 776, 2012 WL 2755916, 2012 U.S. App. LEXIS 14092
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 10, 2012
Docket11-1306
StatusPublished
Cited by46 cases

This text of 684 F.3d 981 (Equal Employment Opportunity Commission v. Picture People, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equal Employment Opportunity Commission v. Picture People, Inc., 684 F.3d 981, 26 Am. Disabilities Cas. (BNA) 776, 2012 WL 2755916, 2012 U.S. App. LEXIS 14092 (10th Cir. 2012).

Opinions

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant, Equal Employment Opportunity Commission (“EEOC”), on behalf of Jessica Chrysler (“Employee”), appeals from the district court’s 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-ev-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 qualified — with or without accommodation — to perform an essential function of her job as a “performer” in Employer’s store. Id. at *3-*5. It also concluded that Employee’s retaliation claim failed because she could not perform an essential function of the job, and that she offered no evidence that Employer’s legitimate, non-discriminatory reasons were pretextual. Id. at *7-*8. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

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 [984]*984also uses basic American Sign Language (“ASL”) signs that most people can understand and speaks some words.” Aplt. Br. 4. Employer maintains that Employee “cannot read lips effectively, nor can she speak except for a few words.” Aplee. Br. 8. It also claims that Employee’s written communication skills are poor and that she scored below average on vocational tests administered by EEOC’s expert — Michael Newman. ApltApp. 310a. On October 23, 2007, Employer hired Employee to work in its Littleton, Colorado store as a “performer.” Id. at 388a. Employee’s 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; ApltApp. 98a, 207a. Arnold Aguilar, Employer’s 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, termed “2-2 staff coverage.” Id. at 8; ApltApp. 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; ApltApp. 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 Employee’s 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. ApltApp. 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 [Employee’s] written communications awkward, cumbersome, and impractical ....” Aplee. Br. 17; ApltApp. 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. ApltApp. 336a-39a. On December 29, 2007, management notified Ms. Bryan that Employee’s performance in the lab was deteriorating — Employee was coloring with pencils instead of working, refusing to take legally required rest breaks, and demanding hours with [985]*985threats, 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 “threatening] 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 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 Employer’s affirmative defenses. On May 9, 2011, the district court granted Employer’s motion to withdraw its affirmative defenses, ruled the EEOC’s motion moot, and granted Employer’s motion for summary judgment. See Order. This appeal followed.

Discussion

We review the district court’s 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, 1037-38 (10th Cir.2011).

The 'parties agree that Employee was disabled within the meaning of the ADA. See Order at *1. Therefore, we start with the second part of the test.

I. Was Employee Qualified for the Performer Position?

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684 F.3d 981, 26 Am. Disabilities Cas. (BNA) 776, 2012 WL 2755916, 2012 U.S. App. LEXIS 14092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equal-employment-opportunity-commission-v-picture-people-inc-ca10-2012.