Equal Employment Opportunity Commission v. Fedex Ground Package System, Inc.

REPLY BRIEF re Motion to Compel

W.D. Pa.June 6, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Equal Employment Opportunity Commission ) ) Plaintiff, ) ) Civil Action No. 15-cv-00256 v. ) ) Hon. Mark R. Hornak FedEx Ground Package System, Inc. ) ) Defendant. ) EEOC’S REPLY BRIEF IN FURTHER SUPPORT OF ITS MOTION TO COMPEL DISCOVERY RESPONSES EEOC, by and through its undersigned attorneys, submits this Reply Brief in Further Support of its Motion to Compel Discovery Responses regarding: 1) FedEx Ground’s receipt of tax credits for employing aggrieved individuals; 2) affirmative action documents regarding employment of and personnel policies covering disabled individuals; 3) e-mail, from relevant custodians, identified through keyword searching; and 4) FedEx Ground’s knowledge of the aggrieved individuals’ hearing impairments and responsive actions taken or accommodations provided based on this knowledge. I. Background FedEx Ground’s Opposition 1 to the EEOC’s Motion to Compel seems to be written for some other ADA case—one in which the disability is latent and does not affect communication, and the needed accommodations are not so obvious. It is a broad-scale pivot away from the discrete issues in this case, i.e., that FedEx Ground requires persons who cannot hear or speak to watch training videos; to attend regularly conducted meetings at which safety and performance protocols are discussed; to use equipment that is audibly cued; and to work in facilities that lack 1 FedEx Ground’s response in opposition is a discovery brief in name only - raising issues and presenting arguments of a dispositive nature throughout. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 1 of 29 2 visual emergency notification systems. Given what this case is actually about, information about FedEx Ground’s knowledge of the aggrieved individuals’ (“AI’s”) open and obvious disabilities and limitations is plainly relevant to EEOC’s liability and punitive damages claims. Yet FedEx Ground is fixated on the pivot, and the pivot is a massive overreach. In an effort to disclaim any relevance of its knowledge of the AIs’ hearing impairments, it rewrites the law, ignores all context-specific nuance in the law, and misrepresents EEOC’s claims. Where the applicable law or EEOC’s claims cannot be adequately dismissed through deflection and subterfuge, FedEx Ground simply assumes the role of fact-finder and decides either the ultimate issue—no ADA violations have occurred—or the (minimal) weight to be assigned the relevant information sought by the EEOC. FedEx Ground is asking this Court to conclude not only that its knowledge of the AIs’ disabilities and resulting limitations plays no part in the duty to engage in the interactive process and provide reasonable accommodation, but also that its (or any employer’s) knowledge about an individual’s disabilities and limitations has no bearing whatsoever on any claim, defense, or damages question at issue in an ADA case. This not only puts an employer’s knowledge of an individual’s disability and limitations beyond the scope of discovery, it also precludes presentation of this material information to the fact-finder in resolving the ADA violations. The Court must reject Defendant’s untenable position and order production of the information sought by the EEOC regarding FedEx Ground’s knowledge of its employment of Package Handlers who cannot hear or speak. II. Relevance of Employer Knowledge to an ADA Accommodation Claim FedEx Ground’s position that its knowledge about the AIs’ disabilities and limitations is entirely irrelevant and undiscoverable in an ADA failure to accommodate case is plainly refuted Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 2 of 29 3 by the controlling statutory language, wherein Congress defined disability discrimination to include an employer’s “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” 42 U.S.C. § 12112(b)(5)(A). While the ADA does not prescribe exactly how appropriate reasonable accommodations for persons with “known physical or mental limitations” are to be identified and provided, the employer’s obligation to accommodate contemplates the parties’ engagement in an interactive process for this purpose. 29 C.F.R. § 1630.2(o)(3) (“To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 311-313 (3d Cir. 1999) (citing 29 C.F.R. § 1630.2(o)(3) approvingly and recognizing the interactive process as part of the accommodation obligation); Hohider v. UPS, 574 F.3d 169, 193 (3d Cir. 2009) (“Engaging in a good-faith interactive process may ‘not only lead to identifying a specific accommodation that will allow a disabled employee to continue to function as a dignified and valued employee, it may also help sensitize the employer to the needs and worth of the disabled person,’ and disabuse the employer of any misperceptions it may have of the employee's condition and qualification for employment.”) (internal citation omitted). In the Third Circuit, an employer’s failure to engage in the interactive process with an employee with known limitations is a violation of the duty to provide reasonable accommodation to such employee if the employee otherwise shows that they are statutorily covered (i.e., is qualified and disabled) and reasonable accommodations exist. Taylor, 184 F.3d at 311-12, 317- 18 (“Put differently, because employers have a duty to help the disabled employee devise Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 3 of 29 4 accommodations, an employer who acts in bad faith in the interactive process will be liable if the jury can reasonably conclude that the employee would have been able to perform the job with accommodations.”); Hohider, 574 F.3d at 194 (failure to engage in the interactive process is a violation where employee is statutorily covered and reasonable accommodation exists); Deane v. Pocono Med. Ctr., 142 F.3d 138, 149 (3d Cir. 1998) (en banc) (“…an employer who fails to engage in the interactive process runs a serious risk that it will erroneously overlook an opportunity to accommodate a statutorily disabled employee, and thereby violate the ADA”); EEOC v. FedEx Ground Package Sys. Inc., 158 F. Supp. 3d 393, 404 (W.D. Pa. 2016) (“The law imposes affirmative obligations on employers to engage in interactive processes as they make reasonable accommodations for otherwise qualified individuals with disabilities. See Taylor, 184 F.3d at 311.”). This unremarkable statement of the law concerning failure to engage in the interactive process resulting in failure to accommodate is on all fours with the claim asserted by EEOC in this case—that FedEx Ground failed to engage in the interactive process with qualified, disabled AIs whom it knew to have limitations, resulting in Defendant’s failure to provide needed and available reasonable accommodations. EEOC’s Complaint alleges that FedEx Ground’s ADA violations include the following: failing to engage in good faith in the interactive process with aggrieved individuals, despite having knowledge of their disabilities and despite the availability of effective reasonable accommodations to enable the aggrieved individuals to have equal participation in the hiring process; See ECF No. 1 at ¶ 42(c). failing to engage in good faith in the interactive process with aggrieved individuals, despite having knowledge of their disabilities and despite the availability of effective reasonable accommodations to enable the aggrieved individuals to perform the essential functions of their position and enjoy equal benefits and privileges of employment; Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 4 of 29 5 See id. at ¶47(a). Contrary to FedEx Ground’s assertion, EEOC does not and has not suggested that failure to engage in the interactive process (without more) is a stand-alone violation—and accordingly the EEOC does not seek relief for persons who are not covered by the statute or for whom no reasonable accommodation was otherwise available. Compare ECF No. 124 at p. 8. (wrongly asserting that EEOC’s claim in this case is simply a stand-alone failure to engage in the interactive process claim); with ECF No. 56 at p. 19 f.17 (“EEOC acknowledges that case law does not support a ‘stand-alone’ failure to engage in the interactive process claim, with nothing more. EEOC instead refers to the recognized failure to engage claim where the employee is disabled and qualified, and the employer fails to engage in the interactive process despite knowledge of the disability and where effective reasonable accommodation was otherwise available.”). In addition to alleging that FedEx Ground knew of the AIs’ disabilities and limitations, EEOC also alleges that every AI is qualified and disabled within the meaning of the ADA and therefore entitled to accommodation, and that effective, reasonable accommodations existed. See ECF No. 1 at ¶¶ 11-19; 35-40 (alleging that each AI is qualified and disabled under the ADA and needed but wasn’t provided available, effective reasonable accommodations including interpreting, vibrating scanners, captioning, and modifications to safety equipment); see also FedEx Ground Package Sys. Inc., 158 F. Supp. 3d at 405 (“EEOC's central claim is based on an alleged failure to engage in an interactive process in order to give disabled individuals a statutorily-mandated reasonable accommodation.”). To be sure, EEOC has sought (and produced) discovery tailored to the issues of qualified and disabled status, as well as the existence of necessary reasonable accommodations. Similarly, with the discovery requests at issue in its Motion to Compel, EEOC likewise seeks discovery Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 5 of 29 6 concerning another element of its claim that Defendant failed to engage in the interactive process and provide reasonable accommodation—what FedEx Ground knew of the AIs’ limitations, and when. While FedEx Ground’s knowledge of AIs’ disabilities and limitations is not alone sufficient to establish the failure to accommodate violation, it is nevertheless necessary to such claim and therefore not only relevant, but critical. Notably, even under FedEx Ground’s legal formulation employer knowledge is material, as FedEx Ground identifies the “employer’s knowledge of the disability” as the “first element” of any failure to accommodate claim. See ECF No. 124 at p. 4. FedEx Ground does not explain how employer knowledge of the disability can at once be “the first element” in a reasonable accommodation claim, while also being wholly irrelevant and non-discoverable. Apparently, in FedEx Ground’s formulation, unless every element of a claim is accounted for in a single discovery request, and the results of the discovery requests are dispositive of the issue, then the discovery request is irrelevant. This is decidedly not the standard for discovery under Rule 26. A. Defendant Rewrites the ADA to Substitute Employee Request for Employer Knowledge Unlawful disability discrimination includes an employer’s “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . ” 42 USC §12112(b)(5) (emphasis added). The statute makes plain that an employer’s knowledge of an individual’s disability and limitations plays a central role in the required accommodation process. FedEx Ground’s own formulation of an accommodation claim concedes the relevance of employer knowledge of the employee’s disability and limitations. See infra p. 6. Where the company’s argument goes off the tracks is in its substitution of an employee request for employer knowledge—thereby shifting the burden for initiating interaction, in all cases, to the employee. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 6 of 29 7 According to FedEx Ground, the only way an employer can acquire knowledge of an individual’s limitations sufficient to trigger any duty to engage the individual and consider reasonable accommodation, and be liable for failing to do so, is if the employee makes an affirmative request for accommodation. See ECF No. 124 at pp. 2, 8 (“employer interaction should follow the request of a disabled employee”; “. . . employers should await individualized requests . . . ”) (emphasis in original). Therefore, FedEx Ground concludes, requests are a required element of any failure to accommodate claim, and when, how, and what an employer knew about the employee’s disability and limitations is entirely irrelevant because Defendant may (and, in fact must) do nothing with such knowledge unless and until it receives the requisite affirmative request from the disabled individual. 2 This legal conclusion is at odds with the text of the ADA, which defines discrimination as not making reasonable accommodation to “known physical or mental limitations” without mention of “requests” for accommodation 3 , and with the interactive and “proactive [accommodation] process intended” by the ADA. Taylor, 184 F.3d at 316. As the Third Circuit explained “what matters under the ADA are not formalisms about the manner” of a request, but whether the employer has enough information, under the circumstances, that it can fairly be said to know of the disability and need for accommodation. Id. at 313, 316. To justify its position, FedEx Ground misapplies generalized ADA principles and case law concerning the relationship between employer knowledge and requests for accommodation, while ignoring the fact that this case does not involve imperceptible disabilities and limitations. 2 In concluding that its knowledge of the AIs’ disabilities, limitations and need for accommodation is entirely irrelevant in this action, Defendant does not explain how this conclusion changes for the many AIs who did request accommodation, and often did so repeatedly. As is explained below, however, the distinction is ultimately immaterial as Defendant’s knowledge is relevant with respect to every AI, whether or not the AI also requested accommodation. 3 In fact, the word “request” appears once in the ADA, in a provision concerning employment entrance examinations and employers’ obligations to produce to investigating government officials “relevant information upon request.” 42 USC § 12112(d)(3)(iii). Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 7 of 29 8 It is true, as Defendant emphasizes, that case law and guidance highlights the role of the employee’s request for accommodation. See ECF No. 124 at pp. 4-5. This was not to elevate an employee request into a statutory element of an employer’s obligation to consider and provide accommodation, nor to displace the enumerated statutory element of employer knowledge. Instead, it was recognition that in most cases the employer will not know about the disability and/or need for an accommodation absent a request from the employee and that under these circumstances the employer may rely upon the request as the notice of disability and need for accommodation. Reed v. Lepage Bakeries, Inc., 244 F.3d 254, 261, fn7 (1st Cir. 2001) (“Because an employee’s disability and concomitant need for accommodation are often not known to the employer until the employee requests an accommodation, the ADA’s reasonable accommodation requirement usually does not apply unless ‘triggered by a request’ from the employee” [however] “[s]ometimes the employee’s disability may prevent the employee from requesting an accommodation, or sometimes the employee's need for an accommodation will be obvious; and in such cases, different rules may apply.”); accord 29 C.F.R. § Pt. 1630.9 App. Consistent with these principles, the Third Circuit has rejected the legal necessity of a request for accommodation in a case involving a deaf plaintiff. In Chisolm v. McManimon, a public accommodation ADA case, the lower court granted summary judgment to a detention center on a deaf inmate’s claim of failure to provide closed captioning because the inmate had not made a specific request for that accommodation. 275 F.3d 315, 330 (3d Cir. 2002). The Third Circuit reversed, finding that even if there were a general rule requiring a request, “it would be inapplicable if [defendant] had knowledge of [plaintiff’s] hearing disability but failed to discuss related issues with him.” Id. The Court went on to note the Catch-22 nature of requiring an affirmative request where the inadequacy of communication between the parties was Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 8 of 29 9 at the very heart of the matter, meaning it wasn’t clear that defendant had ever sufficiently accommodated plaintiff in the first instance such that plaintiff was in a position to effectively communicate his broader accommodation needs. Id. Moreover, while it appears the Third Circuit has not had occasion to rule on a Title I ADA case involving a plaintiff whose disability is as open and obvious as deafness, even in the context of cases involving more latent disabilities, the Court has endorsed the idea that an employer’s obligation to engage an individual and provide reasonable accommodation can arise without requests based on what the employer already knows about the employee’s disability and need for accommodation. In Taylor, notwithstanding the Court’s reference to requests in formulating a generic prima facie evidentiary framework, the Third Circuit’s analysis of employer liability for failing to engage and accommodate a statutorily covered individual focused on what the employer knew of the limitations and need for accommodation—not on whether that knowledge necessarily originated via a formal request. Taylor, 184 F.3d at 313 (“What information the employee’s initial notice must include depends on what the employer knows.”) In fact, the Court focused largely on the information available to the employer about the existence of limitations and need for accommodation independent of any request for accommodation, including the plaintiff’s prior excellent performance, her suffering psychotic breakdowns at work, her subsequent hospitalization and information conveyed by her medical providers, and her uncharacteristic performance problems arising after returning to work. Taylor, 184 F.3d at 314 (“Based on this evidence, the school district had more than enough information to put it on notice that [plaintiff] might have a disability”, and “under the circumstances, it hardly should have come as a surprise that [plaintiff] would want some accommodations, particularly as the successive disciplinary meetings began to mount for an Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 9 of 29 10 employee who had previously performed very well.”). The Court also rejected the idea that the employer’s role in the interactive process is somehow subordinate, secondary, or wholly reactive to the employee’s. Id. at 315 (given all that the employer knew of the employee’s limitations and need for accommodation, and its access to relevant information, “[i]f there was any further information that the school district felt it needed to justify an accommodation, it was incumbent on the school district to ask for it. As the Seventh Circuit has said, ‘The employer has to meet the employee half-way.’ To raise the bar for triggering the interactive process any further would essentially nullify the process.”) (internal citations omitted); and at id. (“Another reason for placing some burden on the employer is that, as the Seventh Circuit recognized in Bultemeyer, an employee with a mental illness may have difficulty effectively relaying medical information about his or her condition, particularly when the symptoms are flaring and reasonable accommodations are needed”). The Taylor Court also rejected formalisms about the existence, manner or content of a request, rebuffing the employer’s argument that it could not be liable because plaintiff had only sought a single accommodation (transfer) that was not feasible. Id. (“We do not think that it is fatal to [plaintiff’s] claim that her son did not request a specific accommodation or that [plaintiff’s] request in March of 1994 was for an accommodation that she admitted was not possible. The interactive process, as its name implies, requires the employer to take some initiative.”) and at 317 (“[W]hile a specific request may not always be necessary to initiate the process, it certainly helps bolster the employee's claim that the employer knew that the employee wanted accommodations.”). See also Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003) (“The employer must have enough information to know of ‘both the disability and desire for an accommodation’, or circumstances must at least be sufficient to cause a reasonable Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 10 of 29 11 employer to make appropriate inquiries about the possible need for an accommodation.”) (internal citation omitted). Similarly, courts that have been directly presented with this question in the ADA employment context have rejected the elevation of the employee request over the statutory touchstone of employer knowledge of the disability and limitations. In a case involving an employee with cerebral palsy whose disability was obvious and concomitant need for accommodation in the workplace apparent, the Second Circuit rejected the employer’s argument that the employee’s admitted failure to request accommodation warranted judgment as a matter of law, observing: Application of this general rule [that a request for accommodation is a prerequisite to liability for failure to accommodate] is not warranted, however, where the disability is obvious or otherwise known to the employer without notice from the employee. The notice requirement is rooted in common sense. Obviously, an employer who acts or fails to act without knowledge of a disability cannot be said to have discriminated based on that disability. Moreover, the notice requirement prevents an employee from keeping her disability a secret and suing later for failure to accommodate. These concerns are not relevant when an employer has independent knowledge of an employee's disability. The rule requiring a request for accommodation [does not apply] in such circumstances. Brady v. Wal-Mart Stores, 531 F.3d 127, 135 (2d Cir. 2008) (citing Felix v. NY Transit Auth. 154 F. Supp. 2d 640, 657 (S.D.N.Y. 2001)). The court went on to hold, “consistent with the statutory and regulatory language, which speaks of accommodating ‘known’ disabilities” the “employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious-- which is to say, if the employer knew or reasonably should have known that the employee was disabled”, and having such knowledge, employer is “obligated to engage in the [] interactive process” or face liability. Id.; 4 accord Barnett v. U.S. Air Inc., 228 F.3d 1105, 1112-14 (9th Cir. 2000), rev’d. on separate grounds 535 U.S. 391 (2002); Taylor v. Principal Fin. Group, 93 F.3d 4 The Third Circuit in a Fair Housing Act accommodation case has approvingly cited the “open and obvious” principle stated in Brady. See Revock v. Cowpet Bay West Condo. Ass’n., 853 F.3d 96 (3d Cir. 2017) (“In other circumstances, the disability and need for accommodation may be known or obvious to the provider”). Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 11 of 29 12 155, 165 (5th Cir. 1996) (“Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer [ ] the initial burden rests primarily upon the employee”, and since in that case the disability was of a “discrete nature” and the accommodations needed unknown, a jury question of failure to accommodate was not raised); Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281, 1285-86 (7th Cir. 1996) (noting that where a known disability makes “the communication process [] more difficult [i]t is crucial that the employer be aware of the difficulties” and engage the other party to determine necessary reasonable accommodations . . . “The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help.”); Moloney v. Home Depot U.S.A., Inc., Case No. 11- 10924, 2012 U.S. Dist. LEXIS 75430 at **38-39 ( E.D. Mich. May 31, 2012) (rejecting that a request is required in all cases to trigger employer’s duty to engage in interactive process and provide accommodation); Walsted v. Woodbury County, 113 F. Supp. 2d 1318, 1336 (N.D. Iowa 2000) (while generally a request may be necessary to establish employer knowledge, “if an employee's disability and the need to accommodate it are obvious, an employee is not required to expressly request reasonable accommodation” to trigger the obligation to initiate the interactive process and consider accommodations). Contrary to Defendant’s position, requests for accommodation are evidence used to establish requisite employer knowledge of the disability, limitations, and need for accommodation for a failure to accommodate claim—requests are not an independent statutory element of the claim. 5 Moreover, while requests are commonly relied upon to establish requisite 5 While not required to establish a failure to accommodate violation, many AIs did request accommodations, notwithstanding their disability. The existence, or non-existence, of a request, however, does not render irrelevant information about when and what FedEx Ground knew of the AIs’ disability independent of the request. Take, for example, an AI who first communicates a request for accommodation during a rare meeting where an interpreter Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 12 of 29 13 employer knowledge, requests are not the only form of permissible evidence of employer knowledge of the disability and limitations—to the exclusion of all other probative evidence. This is especially true where, as here, employer knowledge can plainly arise independent of any request because the disability and resulting limitations are open and obvious and the implications in the workplace are immediately apparent. B. Requiring Employer to Engage Employees with Known Limitations Advances ADA’s Purpose FedEx Ground suggests that the intent and precepts of the ADA bolster its position that an employer, regardless of circumstances, should do nothing absent a request for accommodation from an employee. According to FedEx Ground, any obligation to engage an individual it might have reason to know has a disability—even simply “to clarify . . . the extent or nature of a possible disability” would require it to make impermissible assumptions about the individual, violate the ADA’s prohibition against unlawful medical inquiries, and erode the individual’s privacy. ECF No. 124 at p. 6. 6 This chicken-little argument distorts the ADA’s purpose and that of the interactive process, and it misconstrues the kinds of disabilities that may require engagement absent a request. Taking the latter first, it is the very fact that an individual’s disability or resulting workplace limitations are unconcealed and apparent (i.e. not private) in the first place that was provided, but where Defendant knew of the AI’s disability, limitations and need for accommodation well before this meeting and did not consider or provide accommodation. In such case the longstanding knowledge preceding the request is undoubtedly relevant, and supports the existence of actionable violations prior to the affirmative request. 6 FedEx Ground also misrepresents as EEOC’s position that Defendant should have or was required to adopt a singular, inflexible process for engaging in an interactive process and providing accommodation. See ECF No. 124 at p. 8 n.3. This is not so. Certainly the appropriate questions and information at issue in each interactive process will depend on the relevant disability, limitations, and job-functions and benefits and privileges of employment. EEOC does not suggest that every individual with known disabilities and limitations should be engaged in an identical interactive process—but that individuals with known disabilities and limitations should be engaged in some interactive process. It is Defendant’s willful indifference to the AIs’ known and shared limitations and accommodation needs that underlie EEOC’s allegations concerning Defendant’s failure to take affirmative steps to engage these individuals. See ECF No. 1 at ¶ 32. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 13 of 29 14 generates the requisite employer knowledge absent a request. Moreover, Defendant seems to suggest that the interactive process required by the ADA is a probing, invasive inquiry detached from the specific, relevant limitations and workplace requirements. It is not. “The ADA's regulations make clear that the purpose of the interactive process is to determine the appropriate accommodations”, and it should be used to ascertain the extent of the relevant limitations at issue, the job-related functions and benefits and privileges of employment that would be affected by the limitations, and the availability and effectiveness of accommodations to permit performance of or participation in such functions or benefits of privileges of employment. Taylor, 184 F.3d at 316-17; 29 CFR 1630.2(o)(3). To the extent the interactive process requires limited inquiry into the relevant limitations, such inquiry is plainly job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4) (an “acceptable examination and inquiry” is one by an employer “into the ability of an employee to perform job-related functions.”); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, No. 915.002 (October 17, 2002), Nos. 5-7 (the interactive process warrants medical exams or inquiries necessary to ascertain the nature of the disability at issue, resulting functional limitations, and effectiveness of possible accommodations). Requiring an employer to engage in the interactive process with an individual with a known disability and concomitant workplace limitations does not require the employer to make untoward assumptions about the individual—rather it precludes the employer from continuing to ignore what it already knows about the individual’s limitations and need for assistance. Further, contrary to inviting assumptions, engagement in the interactive process with such an individual to clarify the nature of the obvious limitations and to discern whether and how they can be effectively accommodated forces speculation and stereotypes to yield to information and facts. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 14 of 29 15 This is exactly what the ADA intended. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 804-805 (7th Cir. 2005) (“Sears worries that it would have been inappropriate, and possibly discriminatory, for it to have assumed that Keane was disabled just because she brought in doctors' notes, walked with a limp, and used a cane. True, assumptions are not what the ADA requires. Rather, it obligates an employer to engage in the interactive process precisely for the purpose of allowing both parties to act upon information instead of assumptions.”). 7 Here, FedEx Ground has continually required deaf Package Handlers to attend meetings, to use equipment with audible cues, and to work in facilities without visual alarm systems. Therefore, it should have engaged the AIs in an interactive process for the purpose of identifying effective accommodations even without a request for an accommodation and it has no legitimate basis for resisting discovery into its knowledge of disabilities that it merely chose to ignore. C. The AIs’ Open and Obvious Disability and Limitations Defendant has continually treated this case as if it were an ADA case like Hohider, 574 F.3d 169 (3d Cir. 2009), one involving many different disabilities and possible accommodations, and concerning multiple positions. It also steadfastly takes positions as if it never employed and interacted with the AIs, whose disabilities and limitations, and concomitant need for accommodation, are immediately apparent. As the Court recognized 18 months ago, all of the AIs share the same kind of disability (being deaf and hard-of-hearing), FedEx Ground Package Sys. Inc., 158 F.3d at 401, a disability that presents itself in the same, immediate manner (reliance on non-audible forms of communication - notably American Sign Language (ASL)). 7 Importantly, had Defendant’s managers proactively engaged AIs in an interactive process as required, many would have been disabused of their misconceptions about deaf communication. Including, for example: that there is universal fluency in written English; that ASL is derived from and related to English; that fingerspelling is ASL; that lip-reading is an independent, effective means of communication used by all deaf persons; and/or that active gesturing or physical touching indicates aggression or hostility rather than being a cultural and communication norm for deaf persons. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 15 of 29 16 This disability would have been immediately obvious to FedEx Ground upon its earliest attempted verbal interactions with AIs, including during the mandatory pre-employment sort- observations, pre-hire interviews, and during the intensive multi-day, classroom-based new employee orientation. Moreover, the workplace limitations and need for accommodation resulting from the AIs’ open and obvious disability are immediately apparent, including their inability to effectively participate in mandatory meetings and receive critical information about everything from their health benefits to hazardous material handling; their inability to hear audible cues on their scanners; and their inability to hear fire drills and similar non-visual emergency protocols. EEOC is entitled to discovery into what knowledge Defendant had of the AIs’ disabilities and limitations, when and how such knowledge was acquired, and what was (or was not) done with or for the AI specifically (or for deaf Package Handlers more broadly) based on the knowledge. This is true whether the knowledge is evidenced in a request for accommodation, or whether there is evidence that Defendant had knowledge independent of any request—including: 1) knowledge based on managers’ immediate, direct, and ongoing interactions with the AIs, 2) knowledge evidenced in Defendant’s seeking tax benefits because of the AIs’ limitations, and 3) knowledge evidenced in Defendant’s internal analysis of impediments to hiring, employment, and equal opportunities for disabled individuals, including deaf and hard-of-hearing individuals, and evaluation of the personnel processes, training and other actions that contribute to or can be used to improve such impediments. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 16 of 29 17 D. Whether FedEx Ground Failed to Engage AIs in an Interactive Process and Provide Reasonable Accommodation in Violation of ADA is a Question for the Fact-Finder Ultimately, FedEx Ground asks this Court to create a rule, without any direct authority and in contradiction of the plain language of the ADA itself, that in all cases an employer cannot be liable for failing to engage a statutorily covered individual unless and until the individual makes an affirmative request for accommodation. Not only does this make a “request”, a term found nowhere in the operable language of the ADA, a necessary element of every failure to engage and/or accommodate claim, it also requires, according to Defendant, that this Court not permit discovery into the employer’s knowledge of the disability and limitations, the element actually codified by Congress. That bears repeating—FedEx Ground asks this Court to hold that, as a matter of law, without an affirmative request there can never be liability for failing to engage and accommodate a statutorily covered individual—and that in determining whether a violation has occurred the employer’s knowledge of the exact disability and limitations at issue is so irrelevant as to be beyond discovery. As noted above, FedEx Ground’s formulation of a singular, request-dependent path to liability for failing to engage and accommodate a covered individual is not only at odds with the ADA and implementing regulations, it is also at odds with the fact that Defendant seeks to usurp what is ultimately a fact question. It is either for this Court (on summary judgment) 8 or a jury (if material facts remain disputed) to decide whether the AIs are disabled, whether reasonable accommodations existed, and whether Defendant knew enough to be liable for having failed to engage the AIs and provide them such reasonable accommodation (with or without a request). 8 EEOC plans to seek summary judgment on liability issues for the AIs based on undisputed facts relating to each AI’s covered status, and relating to FedEx Ground’s knowledge of the need for accommodations based on the requirements it imposed upon the AIs (e.g., mandatory attendance at meetings) and on its duty to create an equitable working environment for the AIs. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 17 of 29 18 Taylor, 184 F.3d at 315 (“A reasonable jury could conclude [] that the school district did not meet its burden under the interactive process . . . [and] that the school district did not engage in an interactive process of seeking accommodations and is responsible for the breakdown in the process” entitling a plaintiff to damages if they are statutorily covered and reasonable accommodations exist); Sears, Roebuck & Co., 417 F.3d at 804 (“Viewing the evidence in the light most favorable to [plaintiff], a reasonable jury could conclude that Sears was sufficiently aware of [plaintiff’s] disability to trigger the interactive process”); Evans v. Cernics, Inc., Case No. 3:14-cv-124, 2016 U.S. Dist. LEXIS 108141 at *30-31 (W.D. Pa. Aug. 16, 2016) (holding that employer’s general awareness of plaintiff’s disability and need for workplace accommodation raised jury questions about employer’s liability for failing to engage in interactive process and provide accommodation); Campbell v. Wal-Mart Stores, 272 F. Supp. 2d 1276, 1289-90 (N.D. Okla. 2003) (rejecting employer’s motion for summary judgment based on employee’s failure to request an accommodation where the disability was open and obvious), report and recommendation adopted 272 F. Supp. 2d 1276 (N.D. Okla. 2003). In rendering its judgment, the fact-finder must hear, and EEOC is entitled to discover and present evidence concerning, what the Defendant knew about the AIs’ disability and resulting limitations and when, and what (if anything) the company did with its knowledge. Bultemeyer 100 F.3d at 1287 (reversing summary judgment and finding, where plaintiff could show qualified and disabled status, and employer knew of disability and limitations, jury question existed as to employer liability for breakdown of interactive process and failure to provide accommodations). Therefore, FedEx Ground has no legitimate basis for resisting this discovery. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 18 of 29 19 E. The Court Should Compel Responses to EEOC’s Requests Concerning Defendant’s Knowledge of AI’s Disabilities and Workplace Limitations FedEx Ground does not argue that EEOC’s requests concerning 1) tax credit information; 2) Affirmative Action program information, and; 3) actions taken by managers upon learning of the AIs’ hearing limitations are not relevant to Defendant’s knowledge of the existence and nature of the AIs’ disabilities and resulting workplace limitations. Much the opposite, FedEx Ground concedes, as it must, that they are probative of employer knowledge, which, according to Defendant’s incorrect formulation of the legal standard, is precisely what renders them irrelevant if not coupled to an employee request. Since employer knowledge is not only relevant but critical to the fact-finder’s determination of whether Defendant failed to engage in the interactive process and provide reasonable accommodation to otherwise statutorily covered individuals, EEOC’s discovery of such information should be compelled. While EEOC’s requests can and should be compelled for this reason alone, EEOC will address in turn FedEx Ground’s arguments concerning the additional basis for relevance of the information sought. III. EEOC Discovery Requests Defendant opposes production of relevant documents and information responsive to EEOC’s WOTC, Affirmative Action, and manager knowledge discovery requests by falsely re- characterizing EEOC’s arguments concerning their relevancy to claims or defenses into legal arguments about the claims or defenses. Where Defendant can’t dispose of a relevancy argument by casting it as a legal dispute, it appoints itself fact-finder concerning the existence of violations or persuasive or dispositive weight of relevant evidence to preclude its discovery. EEOC will attempt to avoid repetition of the well-established basis for relevance of the Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 19 of 29 20 documents and information sought, as set forth in its opening brief, and endeavor to focus on Defendant’s efforts to convert a relevancy analysis into a dispositive dispute. A. Tax Credit Documents 1. Disabled Status Defendant suggests EEOC can only seek tax-credit documents (including Work Opportunity Tax Credit (WOTC) documents) on the basis of relevance to ADA disabled status if the two programs’ definitions of disability are equivalent. See ECF No. 124 at p. 13. Defendant then asserts, because the definitions are not equivalent, the WOTC documents are not discoverable because they are not dispositive of the question of an AI’s disabled status under the ADA. See ECF No. 124 at p. 13. If not dispositive of disabled status, Defendant concludes the documents cannot be relevant to disabled status. Id. This is not the standard for relevance under Fed. R. Civ. P. 26(b). Defendant can seek, and receive, WOTC benefits on behalf of persons who are receiving vocational rehabilitative services. While the legal standards governing eligibility for vocational rehabilitation services and ADA coverage are similar, 9 they do not have to be identical in order for the WOTC documents to be relevant to the EEOC’s ADA claims. It is FedEx Ground’s factual discussion of the existence and nature of the AIs’ hearing impairments in the WOTC documents, and when the documents were created, that is relevant to issues of whether the AIs’ have covered disabilities under the ADA. Admissions made by FedEx Ground in the documents may foreclose it from disputing whether an AI has an “actual” disability 10 , i.e., whether his or her hearing impairment substantially limits major life activities such as hearing, speech, and 9 See 29 U.S.C. § 705(20)(A). State vocational rehabilitation services are federally supported via the Rehabilitation Act, and eligibility is based on having a physical or mental limitation that is a substantial impediment to employment. 10 It should be noted that FedEx Ground is both refusing to produce records through which ADA coverage may be established and to narrow this issue by identify those AIs for whom it has a good-faith basis for disputing coverage. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 20 of 29 21 communication. Moreover, the WOTC documents may establish coverage under the ADA under the “record of” prong, see 42 U.S.C. § 12102(1)(B); ECF No. 1 at ¶ 14, as an employer’s own records may be used to establish coverage under this prong. See 29 C.F.R. § 1630.2(k) App. (“there are many types of records that could potentially contain [information indicating qualifying disability], including but not limited to education, medical, or employment records.”). FedEx Ground suggests that EEOC has to demonstrate the dispositive nature of the disability related contents of the WOTC documents before it is entitled to discovery of the documents. As is explained above, the WOTC documents are relevant to the disabled status of the AIs under the ADA, 11 and the ultimate legal weight or dispositive nature of the disability-related information contained therein is for the fact-finder to determine. 2. Undue Hardship The availability and receipt of tax credits is a specified factor for analysis in resolving an undue hardship defense, which Defendant has asserted here. See 29 C.F.R. § 1630.2(p)(2); Second Amended Answer ECF No. 104, Fifth Affirmative Defense. In suggesting that the WOTC tax credits received for employing AIs are not even relevant or discoverable, Defendant strings together broad conclusions about the legal weight that should be afforded the tax credits received. See ECF No. 124 at p. 19-20. EEOC disputes Defendant’s arguments concerning the alleged insignificance of the $2,400 per year per WOTC recipient tax credit it received. Ultimately, it is for a fact-finder to decide whether and to what extent the receipt of the tax credits impacts the viability of any claimed undue hardship defense. EEOC is entitled to discovery concerning the tax credit documents, which is plainly germane and material to 11 In addition to establishing AIs’ actual or record of disabled status, as discussed above, the WOTC documents are of course also relevant to the separate issue of FedEx Ground’s knowledge of the AIs’ disability, related limitations and need for accommodations. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 21 of 29 22 EEOC’s preparing and presenting its case concerning the reasonableness of needed accommodations and absence of undue hardship. 3. Damages Defendant’s documents demonstrating its active, structured participation in the WOTC program to secure tax benefits for hiring deaf Package Handlers, while doing nothing to engage these same individuals to accommodate their known limitations, are relevant to FedEx Ground’s defense to damages (that it “at all times maintained, implemented and enforced” necessary policies and otherwise “exercised reasonable care to prevent and correct promptly” any ADA violations). See Second Amended Answer, ECF No. 104, Affirmative Defenses at ¶¶ 6, 9. The WOTC documents are also relevant to the EEOC’s punitive damages claim and to its allegation that FedEx Ground’s violations of the ADA were committed “with malice or with reckless disregard to the federally protected rights of the aggrieved individuals” to receive accommodations under the ADA. 12 In opposing the relevance of these materials, Defendant again distorts the question from one of relevance to one of legal requirements. Defendant argues that WOTC and the ADA are separate statutes and that unless participation in WOTC changes its legal obligations under the ADA, WOTC documents and information cannot be relevant. See ECF No. 124 at p. 17. This straw-man argument misses the point—EEOC never argued that FedEx Ground’s participation in the WOTC program changed the elements for ADA liability, but rather that its participation is relevant to the EEOC’s claims for liability and damages under the ADA. It is clear that the WOTC documents and information are relevant to and probative of factual questions comprising 12 Indeed, a theme revealed through the AI information chart is that, for many AIs, the only sign language interpreting they received at FedEx Ground was that provided during the hiring and orientation process by the vocational rehabilitation agency. Despite being placed immediately on notice that this accommodation was needed, FedEx Ground simply abandoned its duty to accommodate. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 22 of 29 23 the ADA claims and defenses at issue—including Defendant’s knowing employment of significant numbers of deaf and hard-of-hearing persons (including AIs), information concerning opportunities missed (or ignored) to have interacted with these individuals about accommodating their known disabilities, and training or instruction provided to managers (or omitted) concerning newly hired disabled individuals vis a vis tax credits and accommodations. Whether and to what extent Defendant undertook knowing efforts (including institutional steps) to secure tax benefits on account of knowingly employing deaf and hard-of-hearing AIs, while comparatively doing nothing to meet its known obligation to provide such statutorily covered individuals reasonable accommodations for their known limitations, is relevant to the issue of whether FedEx Ground engaged in malice or reckless indifference to the AIs’ federally protected rights under the ADA. See Kolstad v. ADA, 527 U.S. 526, 536 (1999) (punitive damages warranted where the employer “discriminate[s] in the face of a perceived risk that its actions will violate federal law . . . ”). Moreover, while FedEx Ground may profess that its comparative treatment of AIs under the WOTC program and the ADA does not reflect on its motives or the level of wrongdoing—a jury could see things very differently. 13 B. Affirmative Action Documents In addition to dismissing the relevance of employer knowledge out-of-hand 14 , FedEx Ground again creates a legal straw-man to justify non-production of relevant data collection and analysis required by OFCCP regulations. FedEx Ground’s argument is that (as the company reads it) the Rehabilitation Act, under which the records sought by EEOC are required to be 13 Defendant also makes the circular argument that EEOC cannot seek evidence relevant to punitive damages because no violations have occurred. See ECF No. 124 at p. 18. Defendant can’t avoid relevant discovery into properly alleged damages claims through its self-absolution of the underlying violations. 14 As with the other discovery topics, Defendant again asserts the circular argument that all information about its knowing recruitment and employment of deaf and hard-of-hearing individuals, including AIs, and all evidence of what it knew about their disabilities and limitations and when during employment, is irrelevant based on Defendant’s mistaken legal formulation of the elements of a failure to accommodate claim, and its self-serving conclusion that it has not violated the ADA as to any AI. See ECF No. 124 at p. 20-21. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 23 of 29 24 compiled, has two component provisions establishing independent obligations to accommodate—a nondiscrimination component (41 C.F.R. § 60-741.21(a)(6)) and an affirmative action component (41 C.F.R. § 60-741.44(d)(1)). See ECF No. 124 at pp. 22-23. Since OFCCP, not EEOC, enforces the accommodation provisions of the Rehabilitation Act, FedEx Ground concludes EEOC cannot discover records otherwise required to be compiled by the Act’s regulations. Id. at 23-24. Again, FedEx Ground conflates legal claims with relevancy. That EEOC is not bringing a claim for FedEx Ground’s violation of its Rehabilitation Act obligations to accommodate disabled individuals is not the test for determining whether the information sought by EEOC is relevant to its own ADA claims. As an initial matter, whether and to what extent Defendant has (or has not) proactively engaged any employee “with a known disability” who is having job- related issues to inquire about need for “reasonable accommodation”—whether to comply with OFCCP’s accommodation requirements or otherwise—is relevant to EEOC’s own ADA failure to accommodate claims. Moreover, Defendant ignores that the Rehabilitation Act is about much more than an obligation to accommodate disabled individuals, and the relevant information sought by EEOC is not confined simply to whether FedEx Ground complied with its OFCCP accommodation obligations. Indeed, the affirmative action analysis and recordkeeping contained in the appendices to Defendant’s generic affirmative action plans that is sought by EEOC 1) does not concern any specific OFCCP accommodation obligation or violation, and 2) is required to be compiled and maintained without regard to and wholly separate and apart from any accommodation obligation. See, e.g., 41 C.F.R. §§ 60-741.44(f)(3); 741.44(h); 741.44(k); 41 C.F.R. §§ 60-741.45(a); 741.45(e); 741.45(f). These relevant OFCCP records concern programs to promote recruitment Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 24 of 29 25 of disabled individuals and to correct identified impediments to hiring, employment, retention and equal opportunities for such disabled individuals. The records also concern reviews of how FedEx Ground’s personnel processes, training and other actions contribute to or can be used to improve such impediments, and the company’s utilization of disabled individuals in each job group. As a general matter, FedEx Ground does not deny that the records sought by EEOC directly discuss recruitment, employment, retention, and equal opportunity impediments concerning deaf or hard-of-hearing individuals. Any such documents relate to the company’s knowledge both of its employment of deaf individuals and common issues and affecting deaf and hard-of-hearing employees. What FedEx Ground knew about these issues and, and what it did (if anything) is relevant to whether Defendant permitted these issues to persist, and whether it thereby engaged in malice or reckless disregard regarding the AIs’ ADA rights. Moreover, these documents also reflect the company’s analysis of its own personnel processes that govern and impact disabled individuals generally—and this includes processes of global application to disabled employees (such as ADA policies, forms and communications, manager training, etc.) that would apply with equal measure to each AI who is covered by them. They also are probative of employer knowledge of accommodation breakdowns or problems in its processes, absence or delay in corrective action taken, and punitive damages. 15 See Kolstad, 527 U.S. at 536. 15 Defendant argues that EEOC is not entitled to discovery of the company’s analysis and review of its accommodation policies and procedures because written policies or procedures are not legally required under the ADA or OFCCP. See ECF No. 124 at p. 25-25. This again confuses dispositive arguments and relevance. While absence of written accommodation policies or procedures may not be a facial violation of the ADA, the employer is still under an obligation to provide accommodations. If an employer has created written ADA policies or procedures to promote ADA compliance, and moreover if it has conducted an analysis and review of the effectiveness of such policies and procedures as OFCCP requires annually, this information is plainly relevant in this ADA action, especially since whether an employer implements effective procedures to ensure compliance with its ADA policies is relevant to a punitive damages claim brought under Section 1981a. EEOC v. Federal Express Corp., 513 F.3d 360, 374 (4th Cir. 2008) (“[T]he mere existence of an ADA compliance policy will not alone insulate an employer from punitive damages liability. Rather, in order to avoid liability for the discriminator acts of one of its Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 25 of 29 26 C. Manager Response to Knowledge of AIs’ Disabilities FedEx Ground opposes production of any information describing the company’s actions as a result of its acquiring knowledge of the AIs’ hearing/speech limitation, including, for example, whether it engaged the AI or inquired about the limitations and whether and how the limitations would impact known workplace functions and communications, the availability or effectiveness of accommodations, or accommodations considered or offered. As its justification Defendant again offers its mistaken legal standard and resulting relevancy conclusion –liability can never attach in the absence of a request (wrong), and therefore what the employer knew about an AI’s disability and limitations and what, if anything, it did based on this knowledge is beyond the scope of discovery in an ADA action (also wrong). See ECF No. 124 at pp. 27-28. Similarly, FedEx Ground also readily dismisses the information’s relevance to compensatory and punitive damages by, as with the prior discovery requests, applying its mistaken legal standard to itself and rendering judgment on the ultimate question. After assuming that no violation of the duty to accommodate can occur absent a request, Defendant then concludes no violations have occurred in this matter. Id. at pp. 29-30. In the absence of any violation, there is no basis for discovery in support of damages, according to this conclusory and self-serving analysis. Id. 16 Again, whether Defendant violated the ADA, and whether the violations were committed with malice or reckless indifference to the rights assured by the ADA, is a question for the fact- management officials, an employer maintaining such a compliance policy must also take affirmative steps to ensure its implementation.”). 16 FedEx Ground also suggests that whether and how it acted upon its knowledge that an AI was deaf and hard-of- hearing, even if relevant to liability, cannot be relevant to compensatory damages. See ECF No. 124 at pp. 30-31. This presumes there is no relation between how a violation occurs, and how the violation impacts and harms the AI. Where it is mutually understood that an AI cannot hear or speak, FedEx Ground’s continuing failure to provide accommodations for meetings, or its assumption that notes are adequate when the AI is actually minimally fluent in English, or its directive to an AI to just “read my lips” when this is not an effective communication medium, or a directive to skip or not participate in meetings, and how long such behavior persisted, would all be relevant evidence supporting the AI’s assertions of frustration, isolation, devaluation and other compensable emotional distress. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 26 of 29 27 finder and Defendant’s conclusory arguments that no violations have occurred is not a legitimate basis for it to withhold plainly relevant information. IV. Conclusion In opposing EEOC’s relevant discovery requests, FedEx Ground asks this Court to render an incorrect legal ruling concerning the elements of a failure to accommodate claim. Defendant would have this Court hold that a fact-finder could never conclude, independent of an affirmative accommodation request, that an employer acquired sufficient knowledge of a statutorily covered individual’s disability, limitations and need for accommodation to be liable for failing to reasonably accommodate the individual. Defendant urges this Court to ignore the dispositive role of employer knowledge (whether or not acquired via request) in the duty to consider and provide reasonable accommodation, and then arrive at the even more radical conclusion that what an employer knew about an individual’s disability, limitations, and need for accommodation, when the employer knew it, and what actions the employer took (if any) as a result of such knowledge, are irrelevant to any element of ADA claims and defenses, and beyond the scope of discovery in a disability discrimination case. Based on the foregoing, the Court should decline Defendant’s invitation to make bad law (both regarding the ADA and FRCP 26), and compel production of the highly relevant documents and information sought by EEOC in its Motion to Compel. To preclude such discovery would not only deny EEOC access to information that is highly relevant to the ADA claims and defenses in this case, as well as to the EEOC’s Section 1981a damages claims, it will also ultimately deprive the fact-finder of its prerogative to consider and weigh such evidence in rendering judgment on the ultimate issues in this case. Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 27 of 29 28 Dated: June 6, 2017 Respectfully Submitted, /s/Maria Luisa Morocco MARIA LUISA MOROCCO (Fed Bar 24357) Supervisory Trial Attorney /s/Jennifer Hope____ Senior Trial Attorney (PA 205999) /s/Thomas D. Rethage Senior Trial Attorney THOMAS D. RETHAGE (PA 203524) EEOC - Philadelphia District Office 801 Market St., Suite 1300 Philadelphia, PA 19107 thomas.rethage@eeoc.gov Phone: 215.440.2683 Fax: 215.440.2848 Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 28 of 29 29 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Equal Employment Opportunity Commission ) ) Plaintiff, ) ) Civil Action No. 15-cv-00256 v. ) ) Hon. Mark R. Hornak FedEx Ground Package System, Inc. ) ) Defendant. ) CERTIFICATE OF SERVICE I, Thomas D. Rethage, do hereby certify that on June 6, 2017 a true and correct copy of EEOC’s foregoing Reply Brief in Further Support of its Motion to Compel Discovery Responses was filed via the court’s electronic case filing system, which caused a copy to be served upon: Grace E. Speights gspeights@morganlewis.com Jocelyn R. Cuttino jcuttino@morganlewis.com Matthew J. Sharbaugh msharbaugh@morganlewis.com Thomas F. Hurka thurka@morganlewis.com Barak Babcock barak.babcock@fedex.com Gregory Monaco gregory.monaco@fedex.com Attorneys for Defendant /s/ Thomas D. Rethage Case 2:15-cv-00256-MRH Document 130 Filed 06/06/17 Page 29 of 29