race discrimination, pregnancy discrimination, and the propriety and scope of injunctiverelief to remedy discriminatory conduct.In EEOC v. Cash Depot, Ltd., 2022 U.S. App. LEXIS 23743 (5th Cir. Aug. 24, 2022),the Commission filed an action on behalf of claimant Barney Galloway, alleging that thedefendant failed to provide him with a reasonable accommodation and wrongfullyterminated his employment in violation of the ADA. The district court grantedDefendant’s motion for summary judgment. On appeal, the Fifth Circuit reversed andremanded the district court’s ruling. Galloway was employed as a field servicetechnician. In February of 2019, Galloway had a stroke at home while off duty. Thedefendant provided personal, unpaid leave of absence for Galloway until April 3because he was not yet eligible for leave under the or for short-term disability under thedefendant’s policies. On April 2, Galloway informed the defendant that he could returnto work with a 25-pound restriction. The defendant thereafter informed Galloway thatdue to the requirements of the position, it would be unable to accommodate the liftingrestriction and subsequently terminated his employment. The defendant asserted in itssummary judgment motion that: (i) Galloway was not a qualified individual with adisability because a lifting restriction is not a disability under the ADA; (ii) the EEOCfailed to show that Galloway could perform the essential job functions of field technicianwith or without a reasonable accommodation; and (iii) Galloway was totally andpermanently disabled due to his service-connected disability and was unemployable. Id.at *5. The district court ruled that Galloway was unable to perform the essentialfunctions of his job, that no reasonable accommodations were possible, and that it neednot infer bad faith from Defendant’s decision to immediately hire a replacement. Onappeal, the Fifth Circuit reasoned that the EEOC did not have the burden to prove itsentire case on summary judgment, but rather, the defendant had the burden ofestablishing the absence of a genuine issue of material fact. Id. at *7. The Fifth Circuitopined that the EEOC sufficiently provided facts showing a genuine issue for trial, andthe district court improperly made credibility determinations or weighed the evidence.The Fifth Circuit rejected the district court’s conclusion that Galloway’s testimonyregarding his job requirements was only speculative, as he was not merely speculatingabout his job or whether what he did was essential; instead, he was testifying as to whathe actually did on that job on a daily basis. Id. at *8-9. The Fifth Circuit further opinedthat Galloway's testimony was supported by his doctors and Defendant’s own jobdescription. The Fifth Circuit thus concluded that the record supported the EEOC'sassertion that there were genuine issues of material fact to establish that the districtcourt erred in granting summary judgment. For these reasons, the Fifth Circuit reversedand remanded the district court’s ruling granting the defendant’s motion for summaryjudgment.In EEOC v. Roark-Whitten Hospitality 2, LP, 28 F.4th 136 (10th Cir. 2022), the EEOCfiled an action alleging that defendant Roark-Whitten Hospitality 2 (RW2) subjectedHispanic and Black employees to discrimination on the basis of their race in violation ofTitle VII. The alleged unlawful employment practices allegedly occurred after RW2purchased and began operating a hotel at which the aggrieved employees were allemployed. Following RW2’s purchase, the employees were all either terminated orconstructively discharged. After the action was initiated, the EEOC filed amended23© Duane Morris LLP 2023The EEOC Litigation Review – 2023
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