Blog Post

EEOC v. Bobrich Enterprises, No. 08-10162 (5th Cir. Mar. 6, 2009)

Posted by: Paul Mollica
March 09, 2009
Topic: Daily Developments in EEO Law

One scarcely ever sees disability harassment cases under the ADA, let alone ones that go successfully to verdict. This unpublished Fifth Circuit decision affirms a $150,000 judgment against a Subway franchisee, $50,000 in compensatory damages and $100,000 in punitives.

EEOC v. Bobrich Enterprises, No. 08-10162 (5th Cir. Mar. 6, 2009): The facts are summarized by the panel --

"[Claimant] Gitsham was employed by Bobrich from 2001 to 2003 as a Subway restaurant store manager and, later, area supervisor. Gitsham has permanent hearing loss in both ears; wears hearing aids; and, even with those hearing aids, experiences difficulty comprehending speech and sounds in some situations.

"During her employment at Bobrich, Gitsham's immediate supervisor, Gilbert, repeatedly made statements about Gitsham's hearing impairment that Gitsham found embarrassing, including, inter alia, asking whether Gitsham had her 'ears on' at the start of staff meetings. There was also testimony that Suarez, Bobrich's president, made a similar remark to Gitsham at an office Christmas party."

"The pattern of remarks continued even after Gitsham's complaints to Gilbert and to Schuster, a supervisor. Gitsham consulted with the EEOC in January 2003; that May, she resigned from Bobrich. The EEOC commenced this ADA enforcement action against Bobrich in September 2005."

At trial, the jury reached a split verdict, finding a hostile work environment but no constructive discharge.

Although the employer failed to timely to oppose the sufficiency of evidence at the close of the EEOC's and its own case under Fed. R. Civ. P. 50(a), the panel finds that the EEOC itself forfeited objection to Bobrich's belated challenge, by failing to object when defendant raised the issue for the first time in post-trial motions (Fed. R. Civ. P. 50(b)). In any event, the panel affirms the denial of judgment as a matter of law: "A reasonable juror could find a hostile-work environment. Among other things, the testimony of witnesses Massey and Shuster, as well as Gitsham’s own testimony, is probative of a repeated pattern of harassing statements; Gitsham voiced her objection to these statements; and the harassment continued."

The panel also affirms the exclusion of felony convictions more than ten years old (thus not admissible under FRE 609(b)), on the ground that their probative value -- for impeachment of credibility under FRE 608(b) -- was outweighed by undue prejudice. Becuase other witnesses substantiated Gitsham's account of the hostile work environment, the panel holds that the jury did not depend on her testimony alone and the employer was therefore not prejudiced by the exclusion of the prior felonies.