11th Circuit Refuses to Reinstate Award in Deaf Ex-Costco Worker’s Disability Bias Case

A Costco store in Henderson, Nev. (Photo via Coolcaesar/Wikipedia Commons)

(CN) — An 11th Circuit panel on Monday upheld a judge’s decision to strip a $775,000 jury award from a deaf supermarket employee who has been fighting Costco over its handling of her disability in the workplace.

A 2–1 majority found that during Christine D’Onofrio’s employment with warehouse retailer Costco, the company provided her with reasonable workplace accommodations for her deafness, including equipment that allowed her to communicate with her bosses through online interpreters.

The majority decision upheld a South Florida district judge’s decision to throw out a jury verdict in favor of D’Onofrio on her claims for failure to accommodate her disability. Finding the jury verdict to be irreconcilable with the evidence, the judge concluded in early 2019 that D’Onofrio had resisted use of the online interpreters and had been “obstructing the accommodation” provided by Costco.

At trial in 2018, D’Onofrio detailed a career with Costco spanning more than 20 years. She described her role with Costco not only as a job but as the center of her waking life. 

“I was happy. I was able to do something. I was able to socialize with friends. I was able to go on vacations … I mean, I would get to work at 5:00 in the morning,” she testified.

“That was my life. Everything I did was thinking about Costco.  My life was Costco.  That’s it. That was what I did. I went to sleep early, woke up at the crack of dawn, and I went to Costco,” D’Onofrio told the jury, seeking damages under the Florida Civil Rights Act.

In 2012, tension mounted at work between D’Onofrio and a general manager, who allegedly refused to communicate in writing with her, and tended to mumble, making it difficult for D’Onofrio to read his lips, D’Onofrio claimed.

Costco refused to grant D’Onofrio’s request to send the supervisor to another location. But, in response to her complaints about the boss, the company installed the online video interpreter equipment in two rooms in the Pompano Beach Costco store where D’Onofrio worked.

The company also provided training on deaf communications to staff, per the suggestion of D’Onofrio.

Writing for the majority, U.S. Circuit Judge John Bush Monday found that “the undisputed evidence shows that Costco took immediate redressive action when D’Onofrio raised her concerns about [her boss] in her letter to Costco’s CEO.”

The majority decision cites statements from Costco’s deaf communications training agent, who testified that the supermarket’s Pompano Beach team “did a really good job” with the training and was “very open and receptive” to learning about deaf culture.

Bush — a Donald Trump appointee sitting by designation from the Sixth Circuit — was joined in the majority by Senior U.S. Circuit Judge Stanley Marcus, a Bill Clinton appointee. 

During oral arguments in May, D’Onofrio’s attorney Beverly Pohl tried to convince the appellate panel that the online-interpreter services did not resolve the communication breakdown between D’Onofrio and management. The attorney said that a second boss, who transferred to D’Onofrio’s Costco location in 2013, took disciplinary action against D’Onofrio for behavior common in deaf people, such as strong gesturing and loud speaking.

Pohl added: “D’Onofrio occasionally didn’t want to use [the remote interpretation] in a disciplinary setting. But that’s not what it was brought in for. It was brought in by Costco because they thought it might help with communication.”​

The 11th Circuit majority found, however, that D’Onofrio lacked evidence to support her claim that Costco blew off her requests for additional accommodations, including her request for live interpretation services.

The court further rejected the plaintiff’s contention that Costco was legally required to give deaf communications training to the boss who transferred to her location in 2013. The majority decision noted that the boss had a deaf aunt and knew some sign language, which he purportedly tried to use to communicate with D’Onofrio. 

“This Court does not require accommodations provided by an employer to be perfect; our lodestar, instead, is reasonability,” Bush wrote.

In a dissenting opinion, U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, maintained that stripping D’Onofrio of the jury’s award was unjustified as a matter of law. The jury “was well within its prerogative to accept D’Onofrio’s evidence over Costco’s and make credibility determinations,” he wrote.

Wilson noted that the online interpretation equipment was installed in a managerial office and a pharmacy consultation room, not on the sales floor where D’Onofrio alleged her communication issues were taking place.

Wilson added that the assertion that the boss who arrived in 2013 didn’t need training in deaf communications because he has a deaf relative “sounds of tokenism.”

D’Onofrio was fired on the heels of an October 2013 incident in which she butted heads with that same boss, who she says resorted to “kicking the stuffed animals” during the confrontation.

The 2018 jury decision did not find in favor of D’Onofrio on her wrongful termination claim, notwithstanding the now-voided $775,000 award on her count for failure-to-accommodate.

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