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E.E.O.C. v. Creative Networks, L.L.C.

United States District Court, D. Arizona

September 20, 2012

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CREATIVE NETWORKS, L.L.C., an Arizona corporation, Defendant.

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Andrea Gail Baran, Christopher Robert Houk, Hillary K. Valderrama, Mary Joleen O'Neill, Equal Employment Opportunity Commission, Phoenix, AZ, for Plaintiff.

James Lawrence Blair, Neil Todd McKay, Renaud, Cook, Drury, Mesaros, PA, Phoenix, AZ, for Defendant.

ORDER: (1) GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND (2) DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

DAVID ALAN EZRA, District Judge.

On May 18, 2012, the Court held a hearing on Plaintiff's Motion for Partial

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Summary Judgment (doc. # 124 and Defendant's Motion for Partial Summary Judgment (doc. # 126)). Meenoo Chahbazi, Esq., Hillary K. Valderrama, Esq., and Mary Jo O'Neill, Esq., appeared at the hearing on behalf of Plaintiff Equal Employment Opportunity Commission (the " EEOC" ); N. Todd McKay, Esq., appeared at the hearing on behalf of Defendant Creative Networks, L.L.C. (" Creative Networks" ). After reviewing the motions and the supporting and opposing memoranda, the Court GRANTS Plaintiff's Motion for Partial Summary Judgment and DENIES Defendant's Motion for Partial Summary Judgment.

BACKGROUND

I. Factual Background

This case arises out of allegations of discrimination against disabled individuals in violation of Title I and Title V of the Americans with Disabilities Act of 1990 (the " ADA" ) and Title I of the Civil Rights Act of 1991. Rochelle Duran (" Duran" ) has experienced hearing impairment since she was born (" Duran Depo.," Doc. # 125-2 at 8:8-9), and was diagnosed with " severe [hearing] loss bilaterally" when she was 12 years old (" Muller Report," Doc. # 125-3 at 7). In 2005, she was diagnosed with " severe to profound sensory-neural hearing loss." (Doc. # 125-4.) On or about April 6, 2005, Duran contacted Creative Networks to apply for a Direct Support Professional position. (Duran Depo. at 561:11-23; " Def's Initial Discl.," Doc. # 125-15 at 2.) Rosemary Padilla (" Padilla" ), a Staff Development Administrative Assistant at Creative Networks, informed Duran that she would be required to complete orientation and pre-employment training as part of the application process. (" EEOC SOF," Doc. # 125 ¶ 18; " CN CASF," Doc. # 131 ¶ 18; Doc. # 25-15 at 2.) According to Duran, she requested an interpreter for the orientation and was told that Creative Networks would not provide an interpreter for the orientation but that it would provide an interpreter for training. (Duran Depo. at 63:18-25.) Duran states that when she arrived at the orientation, an instructor verbally provided information to a group of applicants, and she was unable to understand most of what was said. ( Id. at 64:1-7.)

The parties do not dispute that Duran completed a written job application at or around the time of the orientation, and that Eva Sankey (" Sankey" ), another Staff Development Administrative Assistant, called Duran to inform her that Sankey had reviewed her employment application and that she wanted Duran to come in for pre-employment training. (EEOC SOF ¶¶ 22-23; CN CASF ¶¶ 22-23.) Duran told Sankey that she would need a sign language interpreter for the training, and Sankey responded that she would need to talk to her supervisor, but that Duran would have to find her own interpreter and that Creative Networks would pay up to $200 for interpreter services. (EEOC SOF ¶¶ 24-25; CN CASF ¶¶ 24-25.) Duran responded that Creative Networks should find and obtain an interpreting agency, but that she could refer Creative Networks to an interpreting agency. (EEOC SOF ¶ 26; CN CASF ¶ 26.) Sankey stated that she would look into it and gave Duran the dates and times for the training, which was twenty-four hours of training spread over six days. (EEOC SOF ¶ 27; CN CASF ¶ 27.)

Jennifer Hardin (" Hardin" ), a Creative Networks supervisor, spoke to the Director of Operations, Megan Neal (" Neal" ), about Duran's request for a sign language interpreter, and Neal stated that Creative Networks would provide $200 toward the cost of sign language interpretation for Duran's training only. (EEOC SOF ¶ 29;

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CN CASF ¶ 29; " Hardin Depo.," Doc. 125-13, 26:5-28:13.)

In another conversation between Duran and Sankey, Duran again requested that Creative Networks provide her with an interpreter for training. (EEOC SOF ¶ 30; CN CASF ¶ 30.) Sankey responded that Duran had to find her own interpreters, and Duran stated again that it was the responsibility of Creative Networks to provide an interpreter. (EEOC SOF ¶ 31; CN CASF ¶ 31.) Duran stated that she had contacted an interpreting agency and that a Michelle Caplette (" Caplette" ) from the agency indicated that Caplette had contacted Creative Networks. (EEOC SOF ¶ 32; CN CASF ¶ 32.) Duran suggested that Creative Networks contact and negotiate with Caplette, and Sankey agreed to call the agency and inform Duran of the result. (EEOC SOF ¶¶ 33-34; CN CASF ¶ ¶ 33-34.)

In the third and last phone conversation with Sankey, Duran explained that she wanted to attend the training, but that $200 would not be enough to pay for sign language interpreter services for the training period. (EEOC SOF ¶ 37, CN CASF ¶ 37.) Sankey responded that it was Creative Networks' policy to provide only $200 toward interpreting services for the training and that, if Duran had a friend or family member to help her, she could be scheduled for the training. (EEOC SOF ¶ 39; CN CASF ¶ 39; Doc. 125-19 at EEOC-CND-00024.) Duran stated that $200 would not cover interpreting for one night of training, and that a certified interpreter would be more appropriate than a friend or family member; Sankey repeated that it was company policy to provide up to $200. (EEOC SOF ¶¶ 40-41; CN CASF ¶¶ 40-41; Doc. 125-19 at EEOC-CND-00024.) Duran then stated that she did not know what to say and added that she did not have anyone to help translate for her. (EEOC SOF ¶ 42; CN CASF ¶ 42; Doc. 125-19 at EEOC-CND-00024.) At some point, Sankey said " ok" and appeared to conclude the call. (EEOC SOF ¶ 43; CN CASF ¶ 43; Doc. 125-19 at EEOC-CND-00024.) Creative Networks then placed Duran's application in its inactive files. (EEOC ¶ 44; CN CASF ¶ 44.)

In May 2005, Duran filed a Charge of Discrimination against Creative Networks, alleging that she was denied a reasonable accommodation during the orientation and training. (Doc. # 127-1 at 2, EEOC-CND-00008.) About three years later, on April 25, 2008, the EEOC issued a determination that there is reasonable cause to believe Creative Networks violated the ADA in having a policy or practice that denied Duran " and a class of similarly situated individuals a reasonable accommodation and denied the class employment because of their disabilities." (Doc. # 127-1 at 4-5, EEOC-CND-00013-14.)

II. Procedural Background

On September 28, 2009, the EEOC filed a Complaint against Creative Networks pursuant to Title I and Title V of the ADA and Title I of the Civil Rights Act of 1991. (Doc. # 1.) The EEOC brought this lawsuit " to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Rochelle Duran ... and a class of similarly situated individuals who were adversely affected by such practices." ( Id. at 1.) The EEOC asserts that, since at least 2005, Creative Networks has required applicants for the position of Caregiver, Caretaker, and/or Direct Support Professional to complete twenty-four or more hours of pre-employment orientation and training. ( Id. ¶ 11.)The EEOC asserts that, since this same time, Creative Networks has had a " policy or practice of denying accommodations costing greater than $200 for interpreting services for hearing impaired applicants,"

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such as Duran, to complete this training. ( Id. ¶ 12.)

As a result, the EEOC contends that Creative Networks has engaged in unlawful employment practices including:

A. Failure to reasonably accommodate and failure to hire ... Duran and the class because of [Creative Networks'] rigid policy or practice of limiting accommodations to $200
B. Failure to hire ... Duran and a class of similarly situated individuals because of their disability, hearing impairment
C. Maintaining a policy that is a per se violation of the ADA and has the impact of not hiring or excluding hearing impaired applicants.

( Id. ¶ 13.)

In its Prayer for Relief, the EEOC seeks, inter alia: a permanent injunction enjoining Creative Networks from engaging in disability discrimination; an order requiring Creative Networks to institute and carry out policies and practices that provide equal employment opportunities for qualified individuals with disabilities; an order requiring Creative Networks to provide Duran and a class of similarly situated individuals with backpay, compensation for past and future pecuniary and non-pecuniary losses resulting from the alleged unlawful practices; and punitive damages. ( Id. at 5-6.)

On January 14, 2011, the EEOC filed a Motion for Partial Summary Judgment on its failure to hire and failure to accommodate claims for Duran and on its claim that the alleged policy limiting sign language interpreter services to $200 is unlawful. (Doc. # 100.) On February 16, 2011, Creative Networks filed a request that the Court deny the Motion for Partial Summary Judgment without prejudice pursuant to Federal Rules of Civil Procedure (" Rule" ) 56(d) (the " Rule 56(d) Request" ) on the basis that the parties require more time to conduct " class discovery." (" Rule 56(d) Req.," Doc. # 105.)

On April 8, 2011, the Court granted Creative Networks' Rule 56(d) Request and denied without prejudice the EEOC's Motion for Partial Summary Judgment. (Doc. # 112.) The Court found that the EEOC's Motion for Partial Summary Judgment was premature because the names of six class members had only been recently disclosed as a result of a delayed mailing to prior applicants to identify potential class members. ( Id. at 4, 6-7.)

On November 30, 2011, the EEOC filed a Notice of Non-Issues Concerning Class Claims, in which the EEOC advised the Court that it no longer seeks monetary relief on behalf of a class of victims in the case. (Doc. # 123.) The EEOC stated that it continues to seek monetary relief on behalf of Duran and " injunctive relief relevant to all claims set forth in the Commission's Complaint." ( Id. at 1.) The EEOC also stated that it advised Creative Networks that it continues to list as witnesses individuals previously identified as class members. ( Id. at 1-2.)

On December 8, 2011, the EEOC filed the instant Motion for Partial Summary Judgment. (" EEOC Mot.," Doc. # 124.) The EEOC also filed a Statement of Facts in support of its motion. (" EEOC SOF," Doc. # 125.) On January 19, 2012, Creative Networks filed a Response to Plaintiff's Motion for Partial Summary Judgment (" CN Response," Doc. # 130) and a Controverting, and Additional Statement of Facts (" CN CASF," Doc. # 131). On February 16, 2012, the EEOC filed a Reply to Defendant's Response to Motion for Partial Summary Judgment. (" EEOC Reply," Doc. # 137.)

On December 9, 2011, Creative Networks filed the instant Motion for Partial Summary Judgment. (" CN Mot.," Doc. # 126.) Creative Networks also filed a

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Separate Statement of Facts in support of its motion. (" CN SSOF," Doc. # 127.) On January 19, 2012, the EEOC filed a Response to Defendant's Motion for Partial Summary Judgment (" EEOC Resp.," Doc. # 132) and a Response to Defendant's Statement of Facts (Doc. # 133). On February 16, 2012, Creative Networks filed a Reply to Plaintiff's Response to Motion for Partial Summary Judgment. (" CN Reply," Doc. # 138.)

At the May 18, 2012 hearing, the Court requested supplemental briefing from the parties regarding the purpose of the EEOC's claim that Creative Networks maintained a policy that is a per se violation of the ADA and has the impact of not hiring or excluding hearing impaired applicants. On May 29, 2012, the EEOC filed its supplemental brief. (Doc. # 144.) On June 4, 2012, Creative Networks filed a responding brief. (Doc. # 145.)

STANDARD OF REVIEW

Summary judgment is granted under Federal Rule of Civil Procedure 56 when " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir.2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). A main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548. Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Id. at 322-23, 106 S.Ct. 2548. 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). " A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548).

Once the moving party has carried its burden under Rule 56, the nonmoving party " must set forth specific facts showing that there is a genuine issue for trial" and may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In setting forth " specific facts," the nonmoving party may not meet its burden on a summary judgment motion by making general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003). " [A]t least some ‘ significant probative evidence’ " must be produced. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). " 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. Further, the Ninth Circuit has " refused to find a ‘ genuine issue’ where the only evidence presented is ‘ uncorroborated and

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self-serving’ testimony." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002) (citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996)). " Conclusory allegations unsupported by factual data cannot defeat summary judgment." Rivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir.2003).

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." T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence and inferences must be construed in the light most favorable to the nonmoving party. Porter, 419 F.3d at 891. The court does not make credibility determinations or weigh conflicting evidence at the summary judgment stage. Id.; see also Nelson v. City of Davis, 571 F.3d 924 (9th Cir.2009) (" [C]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." ) (citations omitted). However, ...


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