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U.S. Equal Employment Opportunity Commission v. MJC, Inc.

United States District Court, D. Hawaii

July 11, 2019

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
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

          SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION.

         Ryan 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 deaf.

         Before 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.

         Concluding 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.

         II. BACKGROUND.

         A. Factual Background.

         Vicari 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.

         That 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.

         The 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.

         During 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.

         The 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.

         The 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.

         Lot 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 1213-15.

         Lot 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.

         Vicari 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. Id.

         At the 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.

         Tsurumaki's 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.

         Tsurumaki 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.[1]

         Vicari 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.

         B. Procedural Background.

         On August 4, 2015, Vicari submitted to the EEOC a Charge of Discrimination against Cutter Mazda (“Charge”), stating:

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 my disability.
III. I believe I have been discriminated against because of my disability, in violation of the Americans with Disabilities Act of 1990, as amended.

         ECF No. 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.

         On May 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].

         ECF No. 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.

         On July 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.

         In an 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.

         III. STANDARD OF REVIEW.

         Summary 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. 56(c).

         One of 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).

         The 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.

         All 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.” Id.

         IV. ANALYSIS.

         The ADA 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).

         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 (capitalizations omitted).

         To 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).

         The 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 conciliation requirements.

         A. First Element: Disabled Person.

         Under 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).

         Vicari 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 ADA.

         B. Second Element: Qualified Individual.

         A 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).

         “Essential 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 ...


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