Mollica on Tenth Circuit on Accommodations for Deaf Employee

Navigate on over to Paul Mollica's blog for a description of a quite bad, split decision by the Tenth Circuit in a case in which a deaf photographer unsuccessfully sued her former employer for denial of accommodation and for retaliation.  On reading the opinions, I am quite persuaded by Judge Holloway's dissent, which begins:

Ms. Jessica Chrysler was hired as a photographer or “performer” at the Littleton, Colorado studio of Defendant-Appellee The Picture People, Inc. (the Employer). The manager who hired her had full knowledge of her deafness and the means by which she can communicate, and he also had the experience to fully understand the requirements of the job.

When Ms. Chrysler was given an opportunity to conduct a photo session, her performance was given high praise by the customers. She conducted a number of other sessions as well, and there is no evidence that these sessions were less than successful in any way. Nevertheless, acting on what a jury could well determine was nothing more than a stereotyped view of the limitations of the deaf, the Employer first relegated Ms. Chrysler to work only in the lab, then eliminated all of her hours, and finally, after months of hollow promises that she would be given some opportunities, it fired her. Not only that, but the Employer explicitly chastised Ms. Chrysler for having the temerity to complain about her treatment.

The EEOC brought this case against the Employer alleging (1) that the Employer had discriminated against Ms. Chrysler because of her deafness; and (2) that the Employer had retaliated against Ms. Chrysler “for her requests for accommodation and complaints of discrimination.” Despite substantial evidence that Ms. Chrysler had performed well, the district court granted summary judgment for the Employer, holding that Ms. Chrysler was unable to perform the “essential functions” of the job and thus was not a “qualified individual” entitled to the protection of the ADA. Thus, the judge concluded that she could not do that which she had in fact done. Moreover, although faced with the fact that Ms. Chrysler had been disciplined explicitly for invoking her rights, the district court nevertheless concluded that the EEOC had not produced enough evidence to defeat summary judgment on the retaliation claim. 

The opinion affirms these illogical holdings. Like the district court, the opinion fails to apply the proper standard in evaluating the evidence. When the evidence is taken in the proper light, I am convinced that the judgment must be reversed. I therefore respectfully dissent.

Also, what's up with this weird corporate-speak in which a photographer is called a "performer"?