Davidson v. America Online, Inc.

• Citation: 337 F.3d 1179
• Decision Date: 30 July 2003
• Docket Number: No. 01-4253.,01-4253.
• Parties: George M. DAVIDSON, Plaintiff-Appellant, v. AMERICA ONLINE, INC., a Virginia corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

337 F.3d 1179

George M. DAVIDSON, Plaintiff-Appellant, v. AMERICA ONLINE, INC., a Virginia corporation, Defendant-Appellee.

No. 01-4253.

United States Court of Appeals, Tenth Circuit.

July 30, 2003.

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Stephen P. Horvat of Anderson & Karrenberg, Salt Lake City, UT, for the Plaintiff-Appellant.

Gregory W. Stevens of Salt Lake City, UT, for the Defendant-Appellee.

Before LUCERO, HARTZ and ROBINSON,^* Circuit Judges.

ROBINSON, District Judge.

Plaintiff George Davidson sued America Online, Inc. ("AOL") for an alleged violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213. Plaintiff, who is deaf, alleges that AOL failed to hire or consider him for employment because of his disability. The United States District Court for the District of Utah granted summary judgment in favor of AOL, and plaintiff appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's decision that one of plaintiff's claims of discrimination is time-barred. On his remaining claim, however, we conclude that plaintiff made out a prima facie case of discrimination under the ADA and therefore reverse.

STANDARD OF REVIEW

"We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.) (citation omitted), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Simms, 165 F.3d at 1326 (citation omitted). The nonmovant is given "wide berth to prove a factual controversy exists." Jeffries v. State of Kan., 147 F.3d 1220, 1228 (10th Cir.1998) (quoting Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir.1995)).

BACKGROUND

AOL provides online and interactive computer services. AOL maintains a Call Center in Ogden, Utah where AOL "Customer Care Consultants" handle communications to and from members, in various forms, including voice telephone, mail, e-mail, Instant Message and text telephone services for the deaf. AOL staffs its Call Center with "voicephone" and "non-voice-phone" positions. Voicephone positions and non-voicephone positions have the same pay level, benefit level and seniority levels. Most of the work at the Ogden Call Center is done by "Technical Consultants" who communicate with AOL members solely by voice telephone. AOL members are able to call through an inbound toll free number.

During the period from March 1996 through October 1996, AOL hired seven deaf persons from outside AOL for non-voicephone positions, handling mail and e-mail communications. In 1997, AOL opened a Call Center in the Philippines, purportedly to take advantage of inexpensive labor costs. The Philippines Call Center primarily handled non-voicephone communications. As a result, AOL adopted a policy of not hiring external job applicants to fill any non-voicephone positions. After this change, only voicephone positions were available to external job applicants. While no deaf employees were discharged as a result of this policy, AOL concedes that under this policy, a deaf person will no longer be considered for employment at AOL. External job applicants hired for voicephone positions are sometimes transferred to non-voicephone positions within two to three weeks after they are hired.

Davidson, who is deaf, applied for a job at AOL in September 1997 and November 1998. Davidson was acquainted with some of the deaf employees hired externally by AOL in 1996. At the times Davidson applied, AOL was hiring externally for voice-phone positions. Davidson submitted a cover letter, application and resume that stated he was applying for any position that did not require speaking on the telephone. When he did not hear back after submitting his first application, Davidson contacted AOL and was told that all available positions had been filled. Davidson claims that when he applied again in 1998, AOL human resources personnel told him that AOL had changed its hiring policy to limit non-voicephone positions to internal hires, no longer hired deaf people, and would not hire him because he was deaf.

While Davidson's application was pending in 1997, AOL transferred approximately 20 employees from voicephone positions into non-voicephone positions at the Ogden Call Center. After Davidson applied and was rejected again in 1998, he was told by AOL that non-voicephone positions had been filled by internal transfer that very week.

Davidson filed an administrative claim with the state agency on January 7, 1999. Upon referral, the EEOC issued a Notice of Right to Sue. On December 2, 1999, Davidson filed suit, alleging that AOL discriminated against him in violation of the ADA. On AOL's motion for summary judgment, the district court dismissed Davidson's Complaint, concluding (1) the claim regarding the September 1997 incident was time-barred; (2) Davidson failed to establish a prima facie case of discrimination because he was not "qualified, with or without reasonable accommodation, to perform the essential functions of the positions that were offered to and open for external hires"; and (3) it would be an unreasonable accommodation to force AOL to restructure its hiring practices as requested by Davidson. Davidson appeals.

DISCUSSION

I. Continuing Violation

Davidson filed suit on the basis of AOL's refusal to consider him for employment on two occasions: in September 1997 and November 1998. He filed his administrative claim for both actions on January 7, 1999. Incorporating the procedural rules of Title VII, the ADA requires an individual to file a timely administrative claim within 300 days¹ of the challenged action. 42 U.S.C. § 12117(a); § 2000e-5. The filing is a prerequisite to a civil suit under Title VII and a claim is time-barred if it is not filed within these time limits. Bullington v. United Air Lines Inc., 186 F.3d 1301, 1310 (10th Cir.1999) (citing Aronson v. Gressly, 961 F.2d 907, 911 (10th Cir. 1992)). Davidson's administrative claim was filed more than 300 days after the September 1997 failure to hire.

Davidson attempted to avoid this apparent untimeliness by invoking the continuing violation doctrine. We have held that, under proper circumstances, a plaintiff may recover for discriminatory acts that occurred prior to the statutory limitations period if they are "part of a continuing policy or practice that includes the act or acts within the statutory period." Mascheroni v. Board of Regents of the Univ. of Cal., 28 F.3d 1554, 1561 (10th Cir.1994) (quoting Martin v. Nannie & the Newborns, Inc., 3 F.3d, 1410, 1415). A plaintiff may establish a continuing violation by showing either that (1) a series of related acts was taken against him, with one or more of those acts occurring within the limitations period, or (2) the defendant maintained a company-wide policy of discrimination both before and during the limitations period. Bennett v. Quark, Inc., 258 F.3d 1220, 1227 (10th Cir.2001) (citation omitted). The district court concluded that Davidson failed to make the necessary showing under either of these tests. Davidson maintains on appeal that the continuing violation doctrine applies under both approaches.

Davidson argues that the continuing violation doctrine is applicable to this case because the two refusals to hire were part of a series of related acts. In analyzing whether alleged discriminatory acts are sufficiently related to constitute a continuing violation or whether such acts are discrete acts which must be regarded as individual violations, we have used a three-part inquiry to determine whether there was a continuing violation: "(i) subject matter — whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence — whether the nature of the violations should trigger an employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.'" Mascheroni, 28 F.3d at 1561 (quoting Martin, 3 F.3d at 1415). We have noted that the continuing violation doctrine "is premised on the equitable notion that the statute of limitations should not begin to run until a reasonable person would be aware that his or her rights have been violated." Bullington, 186 F.3d at 1311 (quoting Martin, 3 F.3d at 1415 n.6). Thus, we have held that a continuing violation claim fails "if the plaintiff knew, or through the exercise of reasonable diligence would have known, she was being discriminated against at the time the earlier events occurred." Id.

Subsequent to the district court's decision, the Supreme Court revised the standard courts must apply in determining the timeliness of Title VII claims. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Where a change in law occurs while a case is on appeal, we apply the law in effect at the time of our decision. Miller v. City of Mission, 705 F.2d 368, 377 (10th Cir.1983). We can find no basis upon which to restrict the Court's holding to Title VII, and we therefore conclude that the Court's reasoning in Morgan must be applied to cases brought under the ADA.

In Morgan, the Supreme Court held that a continuing violation theory of discrimination is not permitted for claims against discrete acts of discrimination, such as termination, failure to promote, denial of transfer, or a refusal to hire. 536 U.S. at 114, 122 S.Ct. 2061. The Court...