The EEOC Litigation Review - 2023 - Report - Page 23
race discrimination, pregnancy discrimination, and the propriety and scope of injunctive
relief 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 the
defendant failed to provide him with a reasonable accommodation and wrongfully
terminated his employment in violation of the ADA. The district court granted
Defendant’s motion for summary judgment. On appeal, the Fifth Circuit reversed and
remanded the district court’s ruling. Galloway was employed as a field service
technician. In February of 2019, Galloway had a stroke at home while off duty. The
defendant provided personal, unpaid leave of absence for Galloway until April 3
because he was not yet eligible for leave under the or for short-term disability under the
defendant’s policies. On April 2, Galloway informed the defendant that he could return
to work with a 25-pound restriction. The defendant thereafter informed Galloway that
due to the requirements of the position, it would be unable to accommodate the lifting
restriction and subsequently terminated his employment. The defendant asserted in its
summary judgment motion that: (i) Galloway was not a qualified individual with a
disability because a lifting restriction is not a disability under the ADA; (ii) the EEOC
failed to show that Galloway could perform the essential job functions of field technician
with or without a reasonable accommodation; and (iii) Galloway was totally and
permanently disabled due to his service-connected disability and was unemployable. Id.
at *5. The district court ruled that Galloway was unable to perform the essential
functions of his job, that no reasonable accommodations were possible, and that it need
not infer bad faith from Defendant’s decision to immediately hire a replacement. On
appeal, the Fifth Circuit reasoned that the EEOC did not have the burden to prove its
entire case on summary judgment, but rather, the defendant had the burden of
establishing the absence of a genuine issue of material fact. Id. at *7. The Fifth Circuit
opined that the EEOC sufficiently provided facts showing a genuine issue for trial, and
the district court improperly made credibility determinations or weighed the evidence.
The Fifth Circuit rejected the district court’s conclusion that Galloway’s testimony
regarding his job requirements was only speculative, as he was not merely speculating
about his job or whether what he did was essential; instead, he was testifying as to what
he actually did on that job on a daily basis. Id. at *8-9. The Fifth Circuit further opined
that Galloway's testimony was supported by his doctors and Defendant’s own job
description. The Fifth Circuit thus concluded that the record supported the EEOC's
assertion that there were genuine issues of material fact to establish that the district
court erred in granting summary judgment. For these reasons, the Fifth Circuit reversed
and remanded the district court’s ruling granting the defendant’s motion for summary
judgment.
In EEOC v. Roark-Whitten Hospitality 2, LP, 28 F.4th 136 (10th Cir. 2022), the EEOC
filed an action alleging that defendant Roark-Whitten Hospitality 2 (RW2) subjected
Hispanic and Black employees to discrimination on the basis of their race in violation of
Title VII. The alleged unlawful employment practices allegedly occurred after RW2
purchased and began operating a hotel at which the aggrieved employees were all
employed. Following RW2’s purchase, the employees were all either terminated or
constructively discharged. After the action was initiated, the EEOC filed amended
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The EEOC Litigation Review – 2023
