In Equal Employment Opportunity Commission v. The Picture People, Inc., No. 11-1306 (10th Cir. July 10, 2012), the Court affirmed a grant of summary judgment in favor of an employer and against the EEOC on claims for wrongful termination and retaliation brought on behalf of a deaf employee under the Americans with Disabilities Act (“ADA”).
The facts of the Picture People are as follows. The affected employee was employed by a photo studio as a “performer,” and was responsible for “customer intake, sales, portrait photography and laboratory duties.” According to the Court, the employee was “a congenitally and profoundly deaf individual who communicate[d] with hearing individuals by writing notes, gesturing, pointing and miming.” She was also able to use American Sign Language (“ASL”). However, she was not able to effectively read lips and could speak only a few words.
The employer asserted that the employee could not effectively perform her job duties, especially photographing and selling photo packages, primarily due to her inability to quickly and effectively communicate with photo shoot subjects, most of whom were children, or to effectively communicate with customers in selling photo packages. As a result, the employee was relegated primarily to lab duties. During her employment, as a result of post-holiday scheduling, the employee was given reduced hours, as were other employees. After that, the employee threatened to bring a “grievance” against the employer when her hours were not increased. The employer, in the employee’s performance review, noted this threat as part of the reason for a low evaluation. Several months later she was terminated.
The main issue as to the employee’s ADA claim for unlawful termination was whether the employee could in fact perform the essential functions of the job, as the employer contended that strong verbal communication skills were essential to the employee’s job. In assessing this issue, the Court looked at whether the employer actually required all employees in the position to satisfy the same requirement, and whether the requirement was fundamental to the position. The Court noted several factors to consider in making this determination, but cautioned that the analysis is not intended to second guess the employer or to require a lowering of the employer’s work standards.
The Court found that verbal communication skills were indeed an essential job function, since the employee was required to verbally communicate with customers, many of whom were children. The Court found that using written notes, gestures and pointing in place of the fast, efficient use of verbal cuing was impractical, especially given the short attention span of most subjects and the short duration of the photo shoots. The Court also noted that the job description listed strong verbal skills as an essential job function. While the EEOC argued that verbal skills were not essential, as evidenced by the fact that another hearing-impaired employee had performed the job, the Court found significant differences between the two employees, including that the other employee could speak and effectively read lips, while the affected employee could do neither.
After concluding that strong verbal skills were essential to the job, the Court considered whether the employee could perform these essential functions with reasonable accommodation. Although the EEOC argued that a modification to allow the employee to perform the job using non-verbal communication was a reasonable accommodation, the Court found it was not, as an employer is not required to accommodate an employee by eliminating an essential job function. The EEOC next argued that the employer was required to provide an ASL interpreter at meetings and training sessions as a reasonable accommodation, citing several cases that had so found. The Court distinguished those other cases, because the ASL interpreter in those cases assisted the employee in meetings and training, while in the present case the ASL interpreter would have been necessary to enable the employee to perform the essential job functions. Accordingly, the Court affirmed summary judgment on the ADA termination claim.
The Court then addressed the employee’s retaliation claim, affirming summary judgment on that claim also. The Court found that the employee established a prima facie case of retaliation, and so the employer was required to articulate a legitimate, non-retaliatory reason for its actions. The Court found that the employer did articulate a non-retaliatory reason, including the employee’s inability to perform the essential job functions, and its counseling of the employee for policy infractions.
The Court then considered whether the EEOC presented evidence of pretext, which required it to bring evidence of “temporal proximity plus circumstantial evidence of retaliatory motive.” The Court found that the EEOC failed to bring such evidence. While the EEOC alleged that similarly situated employees were treated differently with respect to the reduction in hours, the Court found no specific evidence to support that allegation. Instead, the Court found that other employees also received reduced hours after the holidays. Also, the Court reiterated its prior finding that the employee was not able to perform the essential functions of the job. Thus, the Court concluded, there was no evidence that the employer’s reasons for its actions were pretextual.
A strong dissent was made by Judge Holloway, who asserted that the Court had misapplied proper summary judgment standards, and that the EEOC had brought “direct” evidence of retaliation, thus rendering the Court’s analysis of the circumstantial evidence to be in error. The dissent claimed that under proper summary judgment standards, the evidence must be evaluated in a light most favorable to the non-moving party, and that evidence a jury would have been allowed to disbelieve should have been disregarded. Thus, the dissent argued, the testimony of other employees about the inability of the affected employee to perform her job duties, and her unsatisfactory performance, should have been disregarded in ruling on summary judgment. The Court rejected this view, finding that in employment discrimination cases the employer’s agents frequently provide testimony, and that such testimony is not disregarded on summary judgment.
The Court also addressed the dissent’s assertion that the EEOC had produced direct evidence of retaliatory conduct, consisting of evidence that the employee had complained about receiving reduced working hours and threatened to submit a grievance against the employer. After this threat, the employer had counseled the employee about her complaint as well as other issues. The dissent argued that the employer’s discipline of the employee for threatening a grievance constituted direct evidence of retaliation. The Court rejected this view, finding that the employer’s counseling of the employee was the consequence of a “chain of events” relating to the employee’s performance that included various performance concerns. Accordingly, to conclude the comments were in retaliation for protected activity required an “inference” to be drawn from the various facts. Because an inference was required to link the employer’s response to the employee’s threat to bring a grievance, it could not be considered direct evidence of retaliation.
A few lessons may be learned from Picture People. First, an employer’s job descriptions are an important part of determining whether job functions are essential under the ADA. The Court found it significant that the employer included strong verbal communication skills as an essential job function. Employers should therefore carefully craft their job descriptions to identify each essential job function. Second, an employer’s treatment of similarly situated employees is important, since if the employer treats similarly situated employees more favorably than the affected employee without good reason, it may raise an inference of discrimination. This is true whether the claim involves the ADA or other forms of alleged discrimination. Accordingly, employers must be diligent in ensuring that they enforce rules and policies, discipline employees and take other actions with respect to employees in a consistent and fair manner, and provide clear reasons if they treat similarly situated employees differently.
Finally, when an employee makes a complaint, or threatens to do so, the employer must be careful to understand the nature of the complaint, and be particularly sensitive to whether the complaint raises any issues related to a protected class or category, e.g., race, age, disability, sex, national origin. Any adverse action after the complaint is made could be perceived as retaliatory. This does not preclude an employer from disciplining employees who have made a complaint; however, the employer should clearly articulate the reason for the discipline and ensure that it is not initiated because of a good faith complaint by the employee.