HR Allegedly Admitted Discriminatory Motive Against Deaf Worker


By Jeffrey Rhodes March 27, 2019

​An employee can proceed with his disability discrimination lawsuit alleging that a HR representative said management did not promote him because he was deaf, even though he did not reveal this to the Equal Employment Opportunity Commission (EEOC), a federal district court ruled.

The plaintiff was hired by Swire Coca-Cola Co.'s predecessor in 2013. He expressed an interest in a commercial driving position with Swire in the spring of 2015. He obtained a hearing exemption to operate a commercial motor vehicle from the U.S. Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration, and a commercial driver's license learner's permit. Swire offered the plaintiff a position as a driver, to begin in August 2015.

But in August 2015, Swire informed the plaintiff that it would not promote him to a driver. The plaintiff claimed that a Swire HR representative informed him that company management did not want deaf people driving for Swire. The plaintiff filed a charge of discrimination with the EEOC, but the charge did not include any mention of the statement allegedly made by the HR representative.

In April 2016, the plaintiff passed the DOT test and obtained his commercial driver's license. The plaintiff alleged that when it became apparent he would obtain his license, Swire began scrutinizing his performance to find reasons to discipline him—which it did not do to people without hearing impairments—in furtherance of its wish not to employ deaf people in driving jobs.

Within a few weeks of obtaining his DOT license, the plaintiff claimed, Swire transferred him back to his nondriving job. Then in July 2016, Swire fired the plaintiff because he cut himself opening a box. The plaintiff claimed that Swire used this minor job-related injury as a pretext for dismissing him in retaliation for his protected activity of filing his initial EEOC complaint and in furtherance of its desire not to have deaf people driving for Swire. The plaintiff added his termination to his EEOC charge.

After the plaintiff received his right-to-sue letters from the EEOC, he filed a lawsuit against Swire for discrimination and retaliation under the Americans with Disabilities Act. In his original complaint, the plaintiff did not mention the alleged statement by the HR representative but subsequently amended the complaint to include this and other allegations to support his claims.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The company filed a motion to dismiss the amended complaint, arguing that it was insufficient to meet the plausibility requirement of federal court claims. Swire also argued that the additional factual allegations, including the purported admission by the HR representative of management's discriminatory motives, had to be ignored because the plaintiff failed to exhaust administrative remedies concerning these claims.

Swire argued that the alleged statement that it did not want deaf people driving constituted a separate and independent discriminatory act, which should have been included in the EEOC charge for it to be included in the plaintiff's lawsuit. Because it was not included, the plaintiff had not exhausted his administrative remedies concerning that claim, and it must be dismissed.

The court disagreed and found that the alleged statement served as evidence of discrimination and not as an act of discrimination itself. The court further found that the plaintiff's allegations in his amended complaint sufficed to support his claims of discrimination and retaliation, and it thus denied Swire's motion to dismiss the complaint.

Grady v. Swire Coca-Cola Co., D. Colo., No. 17-cv-02702-NRN (Jan. 22, 2019).

Professional Pointer: HR representatives must act with extreme caution in disclosing to employees the reason for employment decisions. Even offhand statements expressing disapproval of a management decision can successfully serve as the basis for a claim of discrimination and retaliation by a departed employee.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Americans with Disabilities Act.]


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