Panel Hears Disability Bias Case of Deaf Ex-Costco Worker

The fired employee claims a supervisor targeted her for disciplinary action for behaviors connected to her deafness, including speaking loudly and strong gesturing.

(Photo via Coolcaesar/Wikipedia Commons)

(CN) — A deaf former Costco employee is challenging a judge’s decision to toss out a jury verdict that awarded her $775,000 on her disability discrimination claim against the popular supermarket chain. ​

Christine D’Onofrio thought she won her lawsuit against Costco in June 2018 when the jury found that the company had not provided reasonable workplace accommodations for her deafness. The jury awarded her $750,000 for mental anguish, along with $25,000 in punitive damages. ​

About seven months later, Senior U.S. District Judge William Zloch nixed the verdict, finding that “no reasonable jury could have found in favor of plaintiff.” The judge determined that Costco had provided D’Onofrio and her bosses with video-chat devices with online interpretation services, but that D’Onofrio resisted the technology. ​

On Friday in the 11th Circuit, D’Onofrio’s attorney Beverly Pohl argued to an appeals panel that the online interpretation services were not sufficient to resolve the communication breakdown that was occurring in the workplace in the year leading up to D’Onofrio’s firing. ​

The attorney argued that a supervisor who started working at D’Onofrio’s South Florida Costco location in 2013 targeted her for disciplinary action for behaviors that were connected to her deafness, including speaking loudly and strong gesturing. Costco had provided training to staff on how to communicate with deaf co-workers, but the new supervisor began his job at the location roughly a month after the training session. ​

“Every single time he wrote her up for some alleged misconduct, it was for behavior that was specifically described by the [Center for Hearing and Communication] as typical of a deaf person’s communication style,” Pohl argued Friday. ​

Senior U.S. Circuit Judge Stanley Marcus, a Bill Clinton appointee, pressed Pohl on why D’Onofrio occasionally hung up during the video-interpretation sessions with management.  ​

Pohl responded that one boss would try to domineer the online interpreter, prompting D’Onofrio to abandon the process.  ​

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

D’Onofrio wants the 11th Circuit to reinstate the jury award and void a conditional order by the district court judge, which provides for a new trial in the event that the judge’s decision is reversed.  

Costco appellate counsel Robert Carty countered Friday that the company took repeated steps to accommodate the plaintiff’s disability, including offering mediation sessions. 

“It’s irrelevant whether an employer or employee subjectively thinks that more [accommodation] is needed,” Carty told the 11th Circuit judges.

He said the interpretation devices provided by Costco “on any objective measure, on any fair measure,” should have solved the communication problem D’Onofrio was experiencing.

“I think it is self-evident that a machine that allows a deaf person to talk to a hearing person with a sign language interpreter … is absolutely reasonable. Remember the problem that she had was that she couldn’t read [one of her bosses’] lips,” the Costco attorney argued.

Carty said Costco went above and beyond by providing training on deaf customs to its employees. Though the training was not required under Americans with Disabilities Act standards, the retailer provided it to ensure the employee’s needs were being met, he argued. ​

At trial in 2018, D’Onofrio described a career with the company spanning over 20 years, saying her “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,” she testified.

In the time leading up to her firing, she says, she had repeatedly complained to Costco that new management was ignoring her and refusing to communicate with her in writing, her preferred method of interacting. ​

D’Onofrio wrote to the company CEO in late 2012, outlining her grievances. The company responded in part by installing the online-interpretation devices.

She was fired in October 2013 after butting heads with her boss in the workplace.

While the boss accused her of being combative, D’Onofrio maintained that it was he who escalated the confrontation. At one point, she claimed at trial, “he was kicking the stuffed animals.”​

Notwithstanding its finding in D’Onofrio’s favor on the workplace accommodation claim, the jury ultimately concluded that D’Onofrio’s firing was not directly related to her disability.

On Friday, U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, said that it was “clear from the testimony at the trial that Costco provided accommodations.”

“The question is whether or not the accommodations were reasonable. And that’s within the province of the jury. It’s pretty unusual for a district court to set aside a jury verdict, especially one like this,” he said. 

Wilson and Marcus were joined on the panel by U.S. Circuit Judge John Bush, a Donald Trump appointee sitting by designation from the Sixth Circuit. 

The hearing was held online due to the coronavirus outbreak. 

%d bloggers like this: