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Press Release 05-10-2012

Court of Appeals Upholds Verdict for EEOC against Service Temps / Smith Personnel Solutions

Federal  Agency Successfully Fights Barriers to Employment of Qualified Deaf Applicant

DALLAS — In a ruling  issued April 26, a three-judge panel of the U.S. Court of Appeals for the Fifth  Circuit has affirmed a jury's verdict in favor of a U.S. Equal Employment  Opportunity Commission (EEOC) disability discrimination lawsuit against Service  Temps, Inc. doing business as Smith Personnel Solutions, the federal agency  announced today.

The EEOC  had charged in its suit (EEOC v. Service  Temps, Inc. d/b/a Smith Personnel Solutions, Case No. 3:08-cv-01552, U.S.  District Court for the Northern District of Texas), that Service Temps refused  to hire Jacquelyn Moncada for a stock clerk position, despite her  qualifications and experience, upon learning that Moncada is deaf. Through a sign language interpreter, Moncada  attempted to explain to the company that she was fully capable of performing  the job and that she had several years of stock clerk experience. The company refused to conduct an interview  or consider Moncada for the position. A  Service Temps manager explicitly told Moncada that she would not be hired  because she could not hear.

The Americans with Disabilities Act  (ADA) prohibits disability discrimination and requires employers to make reasonable accommodations to  employees' and applicants' disabilities as long as this does not pose an undue  hardship. The EEOC filed suit after  first attempting to reach a pre-litigation settlement through its conciliation  process.

On Sept. 22, 2010, a Dallas jury of  three women and seven men returned a verdict against the employer, finding that  the company had violated the ADA by refusing to hire Moncada because of her  disability. The jury awarded Moncada  money damages for lost wages and emotional harm and an additional amount in  punitive damages.

After the verdict was rendered,  EEOC moved for an injunction against Smith Personnel to prohibit the company  from discriminating on the basis of disability.  On Jan. 11, 2011, the district court entered an order awarding Moncada  $103,200, plus interest, in damages for lost wages, emotional harm and punitive  damages. The district court also granted  EEOC's motion for an injunction, ordering that Smith Personnel be prohibited  from discriminating against persons who are disabled, regarded as disabled, or  having a record of a disability. Smith  Personnel subsequently appealed the decision to the U.S. Court of Appeals for  the Fifth Circuit.

On April 26, 2012, the Fifth  Circuit issued a ruling rejecting all of Smith Personnel's arguments on  appeal. The Fifth Circuit Court adopted  the arguments and analysis forwarded by EEOC's appellate attorney, Christine J.  Back. The higher court rejected the  company's arguments and concluded that misapplication of a claimed company  policy by one of its employees is not necessarily a bar to finding that an  employee acted within the scope of his employment.

The Fifth Circuit further noted  that EEOC had presented evidence at trial demonstrating that Smith Personnel's  manager, who had hiring authority, was employed in a managerial capacity and  acted within the scope of his employment when he did not allow Moncada to apply  for a job, even if that act purportedly violated company policy.

"Jacquelyn Moncada demonstrated a great deal  courage by coming forward to report what happened to her," said EEOC Senior  Trial Attorney Joel Clark, one of the EEOC attorneys who tried the case to the  jury along with Supervisory Trial Attorney Suzanne Anderson. "We hope the jury's verdict and the Fifth  Circuit's support of it will play a part in breaking down the barriers that  deaf applicants face in applying for employment."

EEOC Regional Attorney Robert  Canino added, "The Fifth Circuit's decision acknowledges the diligent work of  the jury at this trial. Justice was  done. We are very pleased that Ms.  Moncada can now close this chapter in her life and move forward."

The  EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is  available on its web site at