HRER 501 Maroon Group – Recent Employment Law Case This is a group discussion. By accessing this discussion, you have entered your own group’s area, outsid

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Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—D.
Colo.: Deaf employee rejected for a driving position has plausible ADA
claims, (Jan. 23, 2019)
Employment Law Daily Wrap Up
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By Lorene D. Park, J.D.
An HR rep’s alleged statement that an employee was denied a driver position because the company didn’t want
deaf drivers was evidence of discrimination, not a separate discriminatory act that had to be in the EEOC charge.
The court found the ADA claims plausible.
Refusing to dismiss ADA discrimination claim by a deaf employee who was rejected for a driver position,
a federal district court in Colorado rejected an employer’s argument that it could not consider an HR
representative’s alleged statement that the company didn’t want deaf drivers. This was not a discriminatory
act separate from the denial of the driving position but was instead evidence that, to the court, made the claim
plausible. The ADA retaliation claim, which was based on the employee’s termination for a minor workplace
injury after he filed an EEOC charge, also survived the motion (Grady v. Swire Coca-Cola, January 22, 2019,
Neureiter, N.).
Obtained CDL. The employee worked for a predecessor company and became an employee of Swire CocaCola in May 2014. He expressed interest in becoming a driver in the Spring of 2015 and, toward that goal, he
obtained a hearing exemption from the Department of Transportation (DOT) to operate commercial vehicles and
took a written test to obtain a commercial driver’s license (CDL) learner’s permit. He passed the DOT test and
obtained his CDL in April 2016.
Rejected as driver. Meanwhile, though the employee was told he could begin as a driver in August 2015, Swire
subsequently informed him that he would not be hired. According to the employee, an HR rep told him that
management did not want deaf people driving for Swire. He filed his first EEOC charge in September 2015.
Termination and lawsuit. In July 2016, the employee was fired, purportedly for cutting himself opening a box,
part of his non-driving duties. Raising the issue to the EEOC, he claimed this minor injury was pretext to fire him
in retaliation for his first EEOC charge and in furtherance of the desire not to have deaf people driving for the
company. He received two right-to-sue letters from the EEOC in August 2017 and filed suit.
HR rep’s statement as evidence of bias. Moving to dismiss the discrimination claim, the employer asserted
that the employee had not alleged in his EEOC charge that the HR rep said management didn’t want deaf
drivers, so that specific allegation was not exhausted and could not be considered. It argued that each incident
of discrimination and retaliatory act constituted a separate incident that had to be included in the charge to be
included in the suit.
Disagreeing, the court noted that the employee’s EEOC charge specifically alleged that he was denied
a promotion to the position of driver because of his disability or because he was regarded as disabled.
The allegation that the HR rep said Swire didn’t want deaf drivers was not necessarily a separate act of
discrimination, explained the court. Rather, it was reasonable to infer that it was evidence tending to prove that
the discrimination occurred. Indeed, the employee clarified in a hearing that the HR rep was not necessarily
speaking in an official capacity and was instead giving him inside information as his ally.
In short, the discriminatory act here was the refusal to give the employee the position of driver, allegedly
because he is deaf. The fact that another employee later told him that the company didn’t want deaf drivers was
not a separate act of discrimination.
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All rights reserved.
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Jan 28, 2019 from Cheetah™
Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—D.
Colo.: Deaf employee rejected for a…
Discrimination claim is plausible. The court further concluded that the employee adequately stated a claim for
discrimination under the ADA. Contrary to the employer’s position, his allegation that he obtained his learner’s
permit and subsequently his CDL was sufficient to allege he was qualified for the position.
Retaliation claim also proceeds. As for the retaliation claim, the employer argued that the nine months
between his EEOC charge and his termination foreclosed causation. But in the court’s view, it would be
premature to dismiss the claim because it was possible that discovery would reveal other evidence linking his
EEOC charge to his subsequent termination.
The case is No. 17-cv-02702-NRN.
Attorneys: Ross Paul Goldsmith (Law Office of Ross P. Goldsmith) for David Grady. Ann Christoff Purvis
(Gordon & Rees) for Swire Coca-Cola Co.
Companies: Swire Coca-Cola Co.
Cases: DisabilityDiscrimination Discrimination Retaliation Procedure ColoradoNews
© 2019 CCH Incorporated and its affiliates and licensors.
All rights reserved.
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Jan 28, 2019 from Cheetah™

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