Deaf Woman Falters in Challenge to EBay Policy

     SAN JOSE, Calif. (CN) – A deaf woman who had to verify her identity on the phone before selling goods on eBay cannot sue for discrimination, a federal judge ruled.
     Melissa Earll took issue with an eBay rule that requires that all sellers to verify their identity over the phone. She claimed that the requirement constituted intentional discrimination in violation of her civil rights, the American with Disabilities Act and the California Disabled Persons Act.
     Her federal complaint was transferred to the Northern District of California from the Western District of Missouri, and she amended the case to claim only violations of the California Unruh Civil Rights Act.
     In this version, Earll said that she met with eBay counsel after filing suit, but the company “still refuses to allow plaintiff to register as an eBay seller,” even though it has surely verified her identity by now.
     She said that the only “plausible conclusion” is that eBay is no longer trying to prevent fraud, but is instead “intentionally discriminating … on the basis of her disability”
     U.S. District Judge Edward Davila dismissed the case with prejudice on Dec. 20.
     The allegations “still only describe a facially neutral policy that has a disparate impact on” Earll, according to the ruling.
     “That Defendant has failed to register plaintiff as a seller even after meeting her is not, without more, sufficient to constitute the ‘willful, affirmative misconduct’ required to state a claim of intentional discrimination under the Unruh Act,” Davila added.
     He noted that Earll has continuously failed to include facts supporting the claims of intentional discrimination, a failure that is “fatal to Plaintiff’s claim.”
     Earll “has not alleged that she affirmatively sought to register as a seller after this meeting, nor has she included any allegations that Defendant specifically denied any renewed request she may have made,” the ruling states. “More importantly, plaintiff has failed to include any allegations suggesting that defendant’s refusal or failure to register her as a seller after their meeting was related to her disability.”
     While Earll claims that her disability is the “‘only plausible explanation,’ the court simply is not persuaded by this conclusory contention,” Davila wrote.
     “In fact, any number of factors could have contributed to defendant’s failure to register plaintiff as a seller,” he added.
     According to the ruling, Earll needed to do more than simply allege that she is deaf, that she notified eBay that its verification process discriminated against deaf people, and that eBay had the opportunity to verify her identity but it still failed to register her as a seller.
     “Rather, she must include some allegation firmly connecting her disability to Defendant’s refusal to register her as a seller,” Davila wrote.
     Attorney Michael Aschenbrener had represented Earll, while Bingham McCutchen attorney John Anthony Polito represented eBay.

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