Shepherd v. Goodwill Industries of South Texas, Inc.

872 F. Supp. 2d 569, 24 Am. Disabilities Cas. (BNA) 1787, 2011 U.S. Dist. LEXIS 80997, 112 Fair Empl. Prac. Cas. (BNA) 1746, 2011 WL 3055231
CourtDistrict Court, S.D. Texas
DecidedJuly 25, 2011
DocketCivil Action No. C-10-313
StatusPublished
Cited by1 cases

This text of 872 F. Supp. 2d 569 (Shepherd v. Goodwill Industries of South Texas, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shepherd v. Goodwill Industries of South Texas, Inc., 872 F. Supp. 2d 569, 24 Am. Disabilities Cas. (BNA) 1787, 2011 U.S. Dist. LEXIS 80997, 112 Fair Empl. Prac. Cas. (BNA) 1746, 2011 WL 3055231 (S.D. Tex. 2011).

Opinion

ORDER

JANIS GRAHAM JACK, Senior District Judge.

Pending before the Court is the Defendant Goodwill Industries of South Texas Inc.’s Motion for Summary Judgment. (D.E. 18.) For the reasons stated herein, the motion is DENIED.

I. Jurisdiction

The court has federal question jurisdiction over the plaintiffs case pursuant to U.S.C. § 1331 because plaintiff brings claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(b)(5)(A).

II. Background

Plaintiff Sheree Shepherd is a Black female who is certified as a blind individual. Her claims in this action are based upon the decision of Defendant Goodwill Industries of South Texas, Inc. (“Goodwill”) not to hire her, which Plaintiff alleges was based on unlawful discrimination due to her race and disability and based on retaliation for a prior charge of discrimination that she filed against one of Goodwill’s employees. (D.E. 1, D.E. 19.)

The summary judgment evidence establishes as follows:

Starting in early 2006, Plaintiff was employed at South Texas Lighthouse for the Blind (“STLB”) as an editor of military publications based on the Corpus Christi Naval Air Station. She was terminated from this position 23 days later on February 23, 2006. According to Plaintiff, her termination was the culmination of a period of harassment and discrimination at the [572]*572hands of her supervisors, Olga Benavides, the Publishing Program Manager at STLB, and Rose Ann Johnson, who was the Senior Editor at the STLB when Plaintiff worked there, and who is now employed by Defendant Goodwill. (D.E. 19, Ex. 1 (Shepherd Affidavit) at 4.)

Plaintiff contends that, on the day of her termination, Ms. Johnson became “so enraged with [her] that [Plaintiff] became ill.” (Id.) She became “so sick and stressed that [she] passed out in front of [Ms. Johnson.]” Id. When she regained consciousness, Ms. Johnson told her to go home. When Ms. Shepherd got to her car, the base medics arrived and asked if she was okay. Id. “[S]uddenly the base military police arrived and [she] found herself surrounded by military police with their guns drawn.” Id. They ordered her to put up her hands, telling her that Ms. Johnson had reported that she had “made a terrorist threat.” Id. They then told her that Ms. Johnson had fired her and scraped off the clearance decals from her car. Id.

Based on these events, on June 23, 2006, Plaintiff filed an EEOC charge against Ms. Johnson, as well as against her other supervisor, Ms. Benavides, for harassment and discrimination on the basis of race and/or disability. (D.E. 19, Ex. 1 (Shepherd Affidavit) at 3-5.)

A little over a year later, around August 6, 2007, Plaintiff received an email regarding the position of Junior Editor for Defendant Goodwill. The job was also based at the Naval Air Station in Corpus Christi and also involved editing military publications. Pursuant to its Federal Contract, the Goodwill was obligated to hire someone with a disability for this job, and the job posting made clear that applicants must have a documented disability in order to apply. (D.E. 18, Ex. 7 (job posting) at l.)1

On August 10, 2007, Plaintiff applied for the position in person at the Goodwill’s administrative officers and was received by Nora Garza, an intake specialist in Goodwill’s Workforce Training division. (D.E. 18, Ex. 2 (Garza statement) at 1.) Plaintiff filled out an application, but Garza noted that Plaintiff did not answer the required question of whether she had ever been terminated from an employment position. (Id.)

Garza asked about the missing information. But Plaintiff refused to discuss it and wrote on her application: “Unable to disclose per legal agreement.” (D.E. 18, Ex. 3 (application) at 3.) Plaintiff also did not indicate the dates of her prior employment as an editor for the military at the STLB or her “Reason(s) for Leaving” that position. (D.E. 18, Ex. 3 (Plaintiffs application) at 2.) According to Ms. Garza, Plaintiff “said something about probably not being able to be hired again ‘out there’ (at CCAD [Corpus Christi Army Depot]),” but she did not explain further. (D.E. 18, Ex. 2 (Garza statement) at 1.)

After Plaintiff submitted her application, Ms. Garza thanked her and scheduled Plaintiff to come in on the following Monday, August 13, 2007, to complete the next stage in the application process. The next stage consisted primarily of an editing exercise on four pages of text, which all applicants were required to complete in order to be considered for an interview. (Id. at 2.)

When Plaintiff arrived the following Monday, Ms. Garza set up the editing exercise on the computer. Plaintiff stated that she was having problems seeing the text. (Id.) Upon realizing that the corn[573]*573puter was not equipped with the adaptive visual technology to which she was accustomed, she asked whether Goodwill had a computer designated for either “Zoom Text” or “JAWS,” which it did not. (D.E. 18, Ex. 10 (Shepherd Depo.) at 228; D.E. 19, Ex. 1 (Shepherd Affidavit) at 6.) She then asked whether there was “any way that [she could] utilize the accommodation on the computer that is built into the Microsoft system” (that is, the Microsoft default font enlarger), or “what they had at that time.” (D.E. 18, Ex. 10 (Shepherd Depo.) at 228.) Using the Microsoft technology, the Director of Information Technology was able to magnify the text and adjust the screen for Plaintiff within 5 to 15 minutes. (Id. at 228-231; D.E. 18, Ex. 2 (Garza statement) at 2.)

Once Plaintiff began the exercise, Ms. Garza left the room. (D.E. 18, Ex. 2 (Garza statement) at 2.) Plaintiff completed the exercise but, according to Ms. Garza:

she took a very long time to complete it. I came in to check on her at least once, and possibly two times, because I expected her to be finished. She took about one hour and forty-five minutes to complete the test, compared to other applicants who completed it in well under an hour.

(Id.) Ms. Garza states that Plaintiff “did not say she was having any problems or ask any questions.” (Id.) Plaintiff “was calm and friendly” and gave Ms. Garza “no problems ... at all.” However, Ms. Garza states: “I did think she was very slow in completing the test.” (Id.)

About a week after Plaintiff came in, Ms. Garza mentioned to Chuck Akers, a manager involved in the Workforce training programs and Director of Commercial Operations at Goodwill, that they had another person interested in the Junior Editor job. She told Mr. Akers that someone named “Sheree Shepherd” had come in to fill out an application and that she “seemed to have worked at CCAD before.” (Id. at 3.) Mr. Akers did not recognize the name, so he called Ms. Johnson, Plaintiffs former supervisor at STLB, now a Project Manager for Goodwill, and asked if Plaintiff had previously worked at CCAD. (D.E. 18, Ex. 4 (Akers statement) at 1.) Ms. Johnson told Mr.

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872 F. Supp. 2d 569, 24 Am. Disabilities Cas. (BNA) 1787, 2011 U.S. Dist. LEXIS 80997, 112 Fair Empl. Prac. Cas. (BNA) 1746, 2011 WL 3055231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepherd-v-goodwill-industries-of-south-texas-inc-txsd-2011.