U.S. Equal Emp't Opportunity Comm'n v. Big Lots Stores, Inc.

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BIG LOTS STORES, INC., Defendant.

Civil Action No. 2:17-CV-73

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Elkins

September 27, 2018

Judge Bailey

ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE

Pending before this Court are Defendant Big Lots Stores, Inc.'s Motion for Summary Judgment [Doc. 56] and Big Lots Stores, Inc.'s Motion to Strike Declarations of Christena Johnson [Doc. 72]. Both motions have been fully briefed and are ripe for decision.

In its motion for summary judgment, Big Lots advances a number of arguments:

1. That Christena Johnson is not disabled under the ADA;

2. That Christena Johnson was not harassed because of a disability;

3. That any harassment was not severe or pervasive;

4. That Big Lots is not liable for the harassment;

5. That Sheria Blackburn's retaliation claim fails;

6. That Christena Johnson's retaliation claim fails;

7. That there is no availability of punitive damages; and

8. That any claim for punitive damages fails as a matter of law.

This case was filed on June 6, 2017, by the Equal Employment Opportunity Commission ("EEOC") on behalf of two charging parties, Christena Johnson and Sheria Blackburn. With respect to Ms. Johnson, the EEOC alleges that Big Lots Stores, Inc. ("Big Lots") has since May, 2014, subjected her to harassment that has created a hostile work environment on the basis of her disability. In addition the EEOC alleges that both Johnson and Blackburn were the subject of adverse treatment in retaliation for reporting the harassment of Johnson.

Hostile work environment claims under the ADA require proof of the following: (1) the worker is a qualified individual with a disability; (2) was subjected to unwelcome harassment; (3) the harassment was based on her disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and (5) some factual basis exists to impute liability to the employer. Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001).

I. Christena Johnson has a disability

Christena Johnson has lived in Elkins for most of her life. She has bilateral deafness, i.e., hearing loss in both ears. She has been completely deaf in her right ear and partially deaf in her left ear since birth or shortly thereafter. Her hearing and speech impairments have imposed substantial limitations throughout her life. For example, she cannot hear whispers, easily engage in in-person conversation without facing a person to read his/her lips, or easily use a telephone without focusing all her attention on the call to the exclusion of her surroundings.

She also has difficulty pronouncing r sounds, and people sometimes have difficultyunderstanding her speech, which requires her to repeat herself. When she was in school, her interactions with others were limited by their perceptions and prejudice, and she even had to transfer high schools in the ninth grade to escape bullying. Later in high school, she had wanted to become a secretary but abandoned that aspiration because she thought she could not perform largely phone-based work.

Because of her speech impairment, most people (including her Big Lots coworkers and supervisors) immediately understood that she had impaired hearing. According to former Store Manager David Perry, "she did speak different." Former District Manager Donovan Bond noticed that "her speech was a little off" and her hearing impairment was obvious. Regional Associate Relations Leader Billie Jo Bishop knew that "Her communication would be consistent with someone who is hearing impaired but maybe not completely deaf." Former coworkers Shirlee Coffman and Pamela Heckler and current coworkers Sheila Bertelli and Fay Magner all knew that her hearing impairment is obvious. Former coworker Kellie Graham recalled, "[S]he talked funny, so you knew she couldn't—she would more or else [sic] tell you she couldn't hear well," "It was common knowledge," and, "[I]t's not like you didn't know." And former coworker Barbara "Bobbi" Curtis testified, "[I]t's obviously the deaf voice."

Since on or about August 3, 2011, Johnson has worked as a part-time cashier and stocker at Big Lots' retail store in Elkins. She performs cashier, stocking, and recovery (i.e., returning merchandise to and tidying shelves) duties. She also performs many duties in the store's furniture department, including but not limited to unloading furniture trucks, setting "planograms" (i.e., erecting merchandise displays according to blueprints), executing price holds (which was a task that typically only managers and employees whoregularly worked in the furniture department were trained to perform), stocking, and financing. Johnson had received extensive training in furniture department duties.

Store Manager Perry described Johnson as a good employee who is eager to work, willing to learn, and performs her job duties as instructed. She met or exceeded expectations every year she worked for him. As a single mother with three children (one of whom is completely deaf), Johnson tried to work as many hours as possible and regularly volunteered to work additional shifts at other Big Lots stores to help with tasks such as putting out freight and setting planograms. Johnson was typically first to volunteer for such assignments and could perform myriad other duties. Johnson worked in the furniture department more frequently than other employees, even those who had received the same training in the department.

This evidence demonstrates that Johnson has an actual disability under the current ADA definition of coverage. Following the adoption of the ADA Amendments Act of 2008 (ADAAA), the standard for establishing disability was significantly relaxed to ensure broad coverage of workers. As amended, the ADA now sets forth rules of construction that must be used when construing and applying the statutory term disability. See 42 U.S.C. § 12102(4). The Act now directs the courts to construe "disability . . . in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter. Moreover, when determining whether an individual is substantially limited in a major life activity, the courts are directed to assess the limitations that the worker would experience in the absence of mitigating measures and to disregard the ameliorative effects of those mitigating measures, such as "learned behavioral or adaptive neurological modifications." § 12102(4)(E)(iv).

In the ADAAA legislative findings, Congress stated its clear intent to provide expansive disability coverage and to specifically reject the "demanding standard" for establishing disability announced in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which required that a worker's impairment "prevents" or "severely restricts" performance of a major life activity. Pub. L. No. 110-325, § 2(b)(4). Instead, Congress directed the courts and the EEOC to focus their analysis on the employer's conduct, not disability coverage questions, as the "primary object of attention" in ADA cases, and that questions of whether an impairment is a disability "should not demand extensive analysis." Id. § 2(b)(5).

Applying ADAAA standards to this case, it is readily apparent that Johnson has an actual disability, or at least there is a genuine issue of fact for the jury on that question. Johnson is completely deaf in her right ear and partially deaf in her left ear and has been since birth or shortly thereafter. Her deafness substantially limits her major life activities, including but not limited to hearing, speaking, and communicating.

42 U.S.C. § 12102(2)(A) provides that "major life activities include, but are not limited to . . . hearing . . . speaking [and] communicating. In addition, 29 C.F.R. § 1630.2(j)(3)(iii) states "[I]t should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated: Deafness substantially limits hearing . . . ."

Although Johnson testified in her deposition that her deafness did not limit her activities inside or outside work, that is not the relevant question. Hearing, speech, and communication are each major life activities in themselves, and so the issue of whetherJohnson experiences any additional limitations as a result of her substantial limitations in hearing, speech, and communicating is legally immaterial. See 42 U.S.C. § 12102(4)(C) ("An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability."). The issue is whether, without consideration of adaptive behaviors such as lip reading, Johnson's condition, manner or duration of hearing, speech or communication are substantially limited as compared to most people in the general population. See, e.g., id. § 12102(4)(E)(iv); 29 C.F.R. § 1630.2(j)(1)(ii) & (j)(4).

In her deposition, Johnson was not specifically asked about the condition, manner, or duration of her hearing ability in itself or her speech. The evidence shows that she is substantially limited particularly, but not exclusively, if the analysis applies the ADAAA requirement that her adaptive behavior of lip reading should be disregarded when assessing whether she is substantially limited in hearing. ("It's hard for me to hear the intercoms and stuff."), (describing her difficulty hearing customers over the phone); ("[Y]ou could talk to her sometimes and she would tell you, 'I can't hear you,' unless you are, like, right in front of her, talking, where she can—yeah.").

Applying the post-ADAAA standard, the federal courts have held that plaintiffs with hearing loss similar to Johnson's had produced sufficient evidence of disabilities under 42 U.S.C. § 12102(1)(A). See Brown v. CVS Pharmacy, Inc., 2013 WL 3353323, at *2-3 (M.D. Fla. July 2, 2013) (ho...