On September 29, 2011, the Equal Employment Opportunity Commission ("EEOC") brought this lawsuit against Beverage Distributors Company, LLC ("BDC") on behalf of a visually impaired company employee in the U.S. District Court for the District of Colorado under the Americans with Disabilities Act of 1990 ("ADA"). The EEOC claimed that BDC discriminated against the employee in violation of the ADA when it conditioned his employment on the results of a medical exam and subsequently refused to hire him as a night warehouse loader upon learning that he had a disability. The EEOC asked the Court for a permanent injunction preventing BDC from discriminating on the basis of disability, reinstatement for the employee, compensatory and punitive damages, and back pay.
The employee has been legally blind since birth. He began working for BDC in 2003 as a driver's helper and performed well in that role. In early 2008, BDC informed him of its decision to eliminate the helper position and use contract labor to do the job instead. The employee was then offered a position as a night warehouse loader, but after the medical exam, the company rescinded the offer because it believed he could not drive a forklift safely, even though operating a forklift is not a job entry-level warehouse loaders perform. BDC also failed to engage in the ADA's required interactive process to determine whether it was possible to accommodate the employee in performing the job safely.
BDC moved for summary judgment and invoked the ADA's "direct-threat" defense, contending that the employee could not perform the essential functions of the warehouse loader position and therefore would pose a "direct threat" to others in the workplace. The District Court (Judge Christine Arguello) denied the motion on December 7, 2012, because there were issues of material fact about whether BDC's decision was reasonable. EEOC v. Beverage Distribs. Co.
, No. 11-cv-02557-CMA-CBS, 2012 WL 6094152 (D. Colo. Dec. 7, 2012). The EEOC also moved for summary judgment, and it was partially granted and partially denied. EEOC v. Beverage Distribs. Co.
, No. 11-cv-02557-CMA-CBS, 2012 WL 6547782 (D. Colo. Dec. 14, 2012). Specifically, the District Court (Judge Arguello) rejected BDC's affirmative defense that the EEOC failed to conciliate in good faith before bringing suit. It also rejected the affirmative defenses of waiver, equitable estoppel, and unclean hands. The Court did, however, rule in favor of BDC in sustaining the affirmative defense of laches. It held that there remain issues of material fact about whether the three-year delay between the EEOC's investigation and its lawsuit was reasonable. Finally, the Court struck BDC's affirmative defense under which the company claimed that its due process rights would be violated if the Court did not bifurcate the trial to consider separately the EEOC's request for punitive damages. After pointing out that bifurcation is not an affirmative defense because it does not affect whether the defendant should be held liable, the Court declined to rule on the issue until a later date.
Following a four-day trial in April, a jury agreed with the EEOC that BDC intentionally violated the ADA when it withdrew its job offer to the employee because of his impaired vision. The jury initially awarded $132,347 in back pay but found that his damages should be reduced by $102,803 because he could have mitigated those damages by finding a comparable position. This is confirmed by the final judgment on April 15, 2013, and the amended final judgment on the same day.
On December 9, 2013, however, the District Court (Judge Arguello) vacated the jury's finding that the employee could have mitigated his damages, holding that BDC failed to prove there were any available comparable jobs that the employee could have performed. EEOC v. Beverage Distribs. Co.
, No. 11-cv-02557-CMA-CBS, 2013 WL 6458735 (D. Colo. Dec. 9, 2013). In addition, the Court ordered BDC to hire the employee as a night warehouse loader with the same seniority that he would have had if BDC had not withdrawn the job offer due to his eyesight. The Court also indicated that, pending a hearing on the tax consequences of the award, the employee might be entitled to a tax penalty offset because of the lump-sum nature of the damages. Finally, the Court required BDC to hire an outside consultant to provide training and assistance in revisions to its policies, updates to its job postings, notice posting, and reporting and compliance review. BDC was required to report its compliance with this order to the Court within six months.
BDC appealed this decision to the U.S. Court of Appeals for the Tenth Circuit and subsequently asked the District Court to stay the requirement that it hire an outside consultant pending the outcome of the appeal. On November 1, 2014, the District Court (Judge Arguello) denied BDC's request, holding that it failed to meet its burden by showing that a stay was justified. EEOC v. Beverage Distribs. Co.
, No. 11-cv-02557-CMA-CBS, 2014 WL 5591430 (D. Colo. Nov. 1, 2014).
On March 16, 2015, the Tenth Circuit (Judges Timothy M. Tymkovich, Jerome A. Holmes, and Robert E. Bacharach) reversed the district court, holding that the direct-threat jury instruction inaccurately conveyed the standard and therefore constituted reversible error. EEOC v. Beverage Distribs. Co.
, 780 F.3d 1018 (10th Cir. 2015). More specifically, the Tenth Circuit held that the instruction erroneously required BDC to prove that the employee posed a direct threat when the company in fact had to prove only that it reasonably believed the job would pose such a threat. On the tax issue, however, the Tenth Circuit rejected BDC's argument that the district court erred in awarding a tax offset. That decision fell within the district court's discretion, and the employee may be entitled to an offset if the EEOC wins on retrial.
There has been no further activity in this docket as of this date.Brian Tengel - 04/15/2015