United States District Court, D. Hawaii
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
MJC, INC.; GAC AUTO GROUP, INC. dba CUTTER MAZDA OF HONOLULU; and DOES 1-10 INCLUSIVE, Defendants.
ORDER (1) GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND (2) DENYING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
OKI MOLLWAY UNITED STATES DISTRICT JUDGE
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
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.
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.
has been deaf since he was very young. ECF No. 94-2, PageID #
1168. On June 24, 2015, he submitted a job application at the
Cutter Mazda car dealership. ECF No. 94-3. In the portion of
the application labeled “Position for which you are
applying, ” Vicari wrote “Detailing.”
See id., PageID # 1175.
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. The Service Manager usually adopted his
recommendations. Id. at 1198-1201.
interview of Vicari lasted between five and ten minutes. ECF
No. 94-5, PageID # 1225; ECF No. 94-2, PageID # 1170.
Tsurumaki noted that Vicari was applying for a detailer
position. 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. ECF No. 131-13, PageID # 2094. Patricia recalls
that Tsurumaki discussed “detailing” with Vicari.
ECF No. 131-8, PageID #s 2030, 2035.
the interview, Patricia told Tsurumaki that Vicari was deaf
but could read lips. ECF No. 94-5, PageID # 1227. Tsurumaki
then told Patricia and Vicari that the movement of cars
around the lot could be unsafe for Vicari. Id. at
1231-33. 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.
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.
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.
ECF No. 94-5, PageID #s 1204-05. Jefferson Lucio, a former
detailer at Cutter Mazda, stated that detailers are trained,
their duties require primarily physical manpower, and the
only machinery that they use is a vacuum cleaner. ECF No.
94-10, PageID #s 1269-71.
attendants are divided into three shifts: openers, main
shuttles, and closers. ECF No. 94-12; ECF No. 94-5, PageID #s
1206-07. 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. ECF No.
94-5, PageID # 1208; ECF No. 94-12, PageID # 1276. 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
attendants primarily communicate with each other and other
workers at the dealership by two-way radio. ECF No. 133-4,
PageID # 2254. 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] [two- 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.
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.
time of Vicari's interview, Defendants had an
anti-discrimination policy. ECF No. 92-20, PageID #s 1063-64,
1090-91. Defendants were providing annual training on
harassment and discrimination to all employees. ECF No.
92-20, PageID #s 1066-69. 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.
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 two-way radio.
Id. at 1236-37; ECF No. 94-6, PageID # 1252.
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). 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.
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. ECF No. 94-8, PageID # 1258.
August 4, 2015, Vicari submitted to the EEOC a Charge of
Discrimination against Cutter Mazda (“Charge”),
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 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
III. I believe I have been discriminated against because of
my disability, in violation of the Americans with
Disabilities Act of 1990, as amended.
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.
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].
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 stated that an EEOC investigator would be
contacting them shortly “to begin conciliation
discussions.” Id. at 1020.
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. ECF No. 1. 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.
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. ECF No. 27.
STANDARD OF REVIEW.
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 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.
the principal purposes of summary judgment is to identify and
dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). 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).
burden initially falls on the moving party to identify for
the court those “portions of the materials on file 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. T.W. Elec.
Serv., 809 F.2d at 630. “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.
evidence and inferences must be construed in the light most
favorable to the nonmoving party. T.W. Elec. Serv.,
809 F.2d at 631. 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.”
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).
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.” ECF No. 93, PageID # 1135
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).
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
First Element: Disabled Person.
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)]).
42 U.S.C. § 12102(1). The ability to hear is considered
a “major life activity” under subsection (A).
See Id. § 12102(2)(A).
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
Second Element: Qualified Individual.
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).
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 ...