COURT OF APPEAL FIRST APPELLATE DISTRICT DIVISION FOUR EUGENE P. DEFORREST, ) ) Appellate Case No. A072441 Appellant, ) ) Honorable David A. Garcia v. ) ) [San Francisco Superior STANLEY SMITH SECURITY, INC., ) Court Case No. 963215] GUARDSMARK, INC., PM MANAGEMENT, ) PINKERTON, INC. AND DOES 1 ) THROUGH 20, ) ) Respondents. ) ___________________________________) __________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE __________________________________________________ C. GREGORY STEWART General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel SAMUEL A. MARCOSSON Attorney EEOC Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4724 TABLE OF CONTENTS PAGE(S) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 6 THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT, BECAUSE THERE ARE GENUINE ISSUES OF FACT WITH RESPECT TO WHETHER DeFORREST IS SUBSTANTIALLY LIMITED IN A MAJOR LIFE ACTIVITY, AND WHETHER GUARDSMARK REGARDED HIM AS HAVING A SUBSTANTIALLY LIMITING IMPAIRMENT . . . . . . . . 6 A. There is a Genuine Issue of Fact Regarding Whether DeForrest is Substantially Limited in the Major Life Activity of Hearing . . . . 7 B. There is a Genuine Issue of Fact on the Question of Whether Guardsmark "Regarded" DeForrest as Being Substantially Limited in the Major Life Activity of Working . . . . 10 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES PAGE(S) Crane v. Lewis, 551 F. Supp. 27 (D.D.C. 1982) . . . . 10 E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Haw. 1980) . . . . . . . . . . . . . . . 9, passim Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986) . . 8, 9, 15, 17 Partlow v. Runyon, 826 F. Supp. 40 (D.N.H. 1993) . . . 14-15 Strathie v. Department of Transportation, 716 F.2d 227 (3d Cir. 1983) . . . . . . . . . . . 14 Tudyman v. United Airlines, 608 F. Supp. 739 (C.D. Cal. 1984) . . . . . . . . . . . . . . . . 17 STATUTES AND REGULATIONS The Americans With Disabilities Act of 1990, 42 U.S.C. 12101 et seq. Section 3(2), 42 U.S.C. 12102(2) . . . . . . . 6 Section 103(b), 42 U.S.C. 12113(b) . . . . . . . 14 The California Fair Employment and Housing Act, Gov't Code, 12900, et seq. Section 12929(i), (k) & (p) . . . . . . . . . . . 6 29 C.F.R. 1630 (Appendix) . . . . . . . . . . . . . 11 29 C.F.R. 1630.2(i) . . . . . . . . . . . . . . . . 12 29 C.F.R. 1630.2(j) . . . . . . . . . . . . . . . . 9, 12 29 C.F.R. 1630.2(j) (Appendix) . . . . . . . . . . . 7 29 C.F.R. 1630.2(l)(1) . . . . . . . . . . . . . . . 15 EEOC Compliance Manual 902.8, at 5326 . . . . . . . 11 COURT OF APPEAL FIRST APPELLATE DISTRICT DIVISION FOUR EUGENE P. DEFORREST, ) ) Appellate Case No. A072441 Appellant, ) ) Honorable David A. Garcia v. ) ) [San Francisco Superior STANLEY SMITH SECURITY, INC., ) Court Case No. 963215] GUARDSMARK, INC., PM MANAGEMENT, ) PINKERTON, INC. AND DOES 1 ) THROUGH 20, ) ) Respondents. ) ___________________________________) ________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE __________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the federal agency charged by Congress with the enforcement, interpretation, and administration of the Americans With Disabilities Act of 1990, 42 U.S.C. 12101 et seq., and the nation's other employment discrimination statutes. The statute protects from discrimination any "qualified individual with a disability," and defines "disability" to mean either a "physical or mental impairment that substantially limits one or more of the major life activities of such individual," or "being regarded as having such an impairment." This case raises important issues surrounding the proper interpretation of these crucial provisions of the ADA, particularly how much and what types of proof are necessary for a plaintiff to show he or she has a "substantially limiting" impairment, or that the employer "regards" the individual as having such an impairment. The resolution of these complex questions will have significant consequences for future cases, including cases brought by the EEOC. Accordingly, we offer our views on this appeal. STATEMENT OF THE CASE This is an appeal from a summary judgment of the California Superior Court, County of San Francisco, dismissing this action. The complaint alleges that the defendants discriminated against the plaintiff on the basis of disability, in violation of the California Fair Employment and Housing Act ("FEHA"), Gov't Code 12900 et seq., and the federal Americans With Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq. In granting summary judgment, the Superior Court held that plaintiff does not have a physical or mental impairment that substantially limits a major life activity within the meaning of the ADA or the FEHA, and that defendants did not regard him as having such an impairment. (A.A. 762-65). 1. Statement of Facts. In July 1993, Eugene DeForrest applied for a position as the supervisor of security guards at a high-rise office building at 580 California Street in San Francisco. (A.A. 424). Prior to that time, he had successfully performed his duties as supervisor of security guards at another San Francisco high-rise, this one at 444 Market Street. (A.A. 525). The building manager at 580 California Street was Pamela Pryor, who had previously been DeForrest's direct supervisor at 444 Market St. (A.A. 524-26). Security at 580 California St. was provided by Guardsmark, Inc. (A.A. 527-28). In her position as building manager, Pryor participated in the selection of security staff, including the supervisor. (A.A. 527). Based on her past experience with DeForrest and her knowledge that he was willing to apply for a similar position at the new location, Pryor indicated to Guardsmark that she wanted DeForrest hired when the supervisory position became vacant in the summer of 1993. (A.A. 532). Guardsmark made DeForrest a conditional offer of employment, subject to a medical examination. (A.A. 490-91). During this examination, DeForrest disclosed that he has tinnitus, a hearing impairment which causes a continual "roaring" sound in his left ear, comparable to standing next to a jet engine. (A.A. 493). DeForrest's tinnitus blocks out a range of sounds and impairs his ability to hear normal conversation when he is not wearing a hearing aid, at least in situations where there is substantial "background noise." (A.A. 493). With his hearing aid, "the roaring does not interfere with [DeForrest's] ability to hear and communicate." (A.A. 493). According to both Pryor and DeForrest, Guardsmark refused to hire DeForrest because of a blanket policy of refusing to hire persons who wear hearing aids. (A.A. 493 (deposition testimony of DeForrest), 535-37 (deposition testimony of Pryor)). Pryor testified that she asked Guardsmark, "'Has anyone tested to see if this interferes with his work?' and their response was no. My impression is that it was an arbitrary decision made by Mr. Lipman [the CEO and owner of Guardsmark]." (A.A. 536). DeForrest also introduced evidence of a "screening list" maintained by Guardsmark containing "Reasons for Directed Terminations," (A.A. 588), which is used to automatically disqualify persons from being hired. (A.A. 574-79). Besides "Hearing problems and/or use of a hearing aid," the list contains six other criteria related directly or indirectly to physical condition, including "Back injury," "Heart problems," and "Been refused life insurance." (A.A. 588). 2. Proceedings Below. After DeForrest filed suit alleging that Guardsmark refused to hire him because of his hearing impairment in violation of the ADA, Guardsmark filed a motion for summary judgment, arguing that DeForrest does not have a disability and that it did not regard him as disabled. (A.A. 20). The district court granted the motion, adopting Guardsmark's proposed order as its decision. (A.A. 762-65). The decision simply states that DeForrest's hearing impairment is not a disability because it "does not limit his ability to participate in major life activities." (A.A. 763). The decision does not specify whether the court considered this question based on DeForrest's hearing level with or without his hearing aid. It also states that Guardsmark does not regard DeForrest as having a substantially limiting impairment because his "inability to perform one particular job for one employer does not establish that Guardsmark perceived [him] as physically disabled." (A.A. 764). SUMMARY OF ARGUMENT The Superior Court erred in granting summary judgment because genuine issues of fact exist regarding the two central issues raised by DeForrest's complaint: whether his physical impairment (tinnitus) substantially limits his ability to perform a major life activity (hearing), and whether Guardsmark regarded him as having an impairment that is substantially limiting. The question of whether DeForrest's hearing impairment is substantially limiting must be answered with reference to his hearing when he does not wear a hearing aid. On the current record, there is evidence from which a jury could conclude that the limitations DeForrest experiences in his hearing are "substantial" compared to the average person's ability to hear. Without his hearing aid, DeForrest hears a constant roaring in one ear comparable to standing next to a jet engine, making it difficult for him to pick up normal conversational tones. It was for a jury to determine whether this constitutes a "substantial" limitation. There is also considerable evidence showing that Guardsmark regarded DeForrest as substantially limited in his ability to perform the major life activity of working. An individual is limited in his ability to work if he is unable to perform a class of jobs or a broad range of jobs in various classes. Where an employer's actions and perceptions indicate that it regards an individual as if he has an impairment that has such an effect, then the individual is disabled by virtue of the way he is regarded by the employer. In this case, Guardsmark's actions in disqualifying DeForrest from employment, combined with the evidence showing that it did so based on factors that would disqualify him from an entire class of jobs -- law enforcement or security positions -- could lead a jury to hold that Guardsmark regarded DeForrest as substantially limited in the major life activity of working. ARGUMENT THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT, BECAUSE THERE ARE GENUINE ISSUES OF FACT WITH RESPECT TO WHETHER DeFORREST IS SUBSTANTIALLY LIMITED IN A MAJOR LIFE ACTIVITY AND WHETHER GUARDSMARK REGARDED HIM AS HAVING A SUBSTANTIALLY LIMITING IMPAIRMENT This appeal raises two important issues involving the ADA's definition of a "disability." Under 3(2) of the ADA, 42 U.S.C. 12102(2), an individual has a "disability" if he has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," or if he is "regarded as having such an impairment." In this case, the trial court found no genuine issue of fact on the questions of whether Eugene DeForrest's hearing impairment "substantially limits" him in a major life activity, or whether Guardsmark "regarded" him as having an impairment that is substantially limiting. In the Commission's view, the court erred in both respects. A. There is a Genuine Issue of Fact Regarding Whether DeForrest is Substantially Limited in the Major Life Activity of Hearing. There is sufficient evidence in the record to create a genuine issue of fact whether DeForrest's hearing impairment substantially limits him in the major life activity of hearing. The trial court failed properly to analyze DeForrest's impairment, and gave no indication that it fully assessed the evidence showing that the impairment substantially limits his ability to hear. In determining whether DeForrest's ability to hear is substantially limited, the court should have assessed his hearing condition without his hearing aid. See Interpretive Guidance to EEOC Regulations, 29 C.F.R. 1630.2(j) (Appendix) ("The determination whether an individual is substantially limited in a major life activity must be made . . . without regard to mitigating measures such as medicines, assistive or prosthetic devices."). Neither the trial court's decision nor Guardsmark's memorandum in support of its motion for summary judgment is clear on whether they were asserting that DeForrest is not substantially limited in hearing even without his hearing aid. If, as it appears, the trial court assessed DeForrest's hearing ability with his hearing aid, then it erred as a matter of law, and its judgment must be reversed. When the focus is placed on DeForrest's unaided hearing, the record manifestly demonstrates a genuine issue of fact on whether his hearing is substantially limited. DeForrest testified that, without his hearing aid, he experiences in his left ear "a continuous roaring, 24 hours a day, every day of the year," which "will last for the rest of my life." (A.A. 493). This roaring interferes with his ability to hear "low tones" so that he has difficulty picking up normal intonations in casual conversation. (A.A. 554, 559). An examination of DeForrest at the San Francisco Hearing and Speech Center showed that his hearing loss is sufficiently severe that, when uncorrected, "it interferes with his work as an investigator and journalist." (A.A. 507). The Center diagnosed DeForrest with a case of tinnitus having a "mild degree of severity." (A.A. 507). This evidence would support a fact-finder's conclusion that, compared to the average person, DeForrest is substantially limited in his ability to hear. It is this comparison -- between the plaintiff and the average person in the general population -- that must be made in determining whether an individual has a substantially limiting impairment. See Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986) ("[T]he very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for satisfactory employment."); 29 C.F.R. 1630.2(j) ("The term 'substantially limits' means . . . (ii) significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.") (emphasis added). There is some evidence to the contrary. DeForrest acknowledged in his deposition that his hearing loss did not interfere with the performance of his job at 444 Market St. (A.A. 563-64). He also stated that, even without his hearing aid, he could hear normal conversation without difficulty, at least up to a distance of twenty feet. (A.A. 493). For present purposes, however, it is sufficient for DeForrest to show that there is a factual dispute concerning the effect of his impairment. Each impairment must be measured individually; all conditions affecting hearing are unique in the impact they have on an individual's abilities. See Forrisi, 794 F.2d at 933 (court must examine "whether a particular impairment constitutes a significant barrier to employment for a particular person"); E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 11000 (D. Haw. 1980) ("[T]he real focus must be on the individual job seeker, and not solely on the impairment or on the perceived impairment. This necessitates a case-by-case determination of whether the impairment or perceived impairment . . . constitutes, for that individual, a substantial handicap to employment."); cf. Crane v. Lewis, 551 F. Supp. 27, 31-32 (D.D.C. 1982) (because individualized consideration of plaintiff's specific condition is required, court remands case to agency which had refused to hire individual with hearing impairment for determination whether he can "perform adequately without a compensatory device" and, if not, whether he is willing to use one). It is therefore within the jury's province to weigh all the evidence concerning DeForrest's hearing, and measure the significance of his condition against its perception of the average person's hearing. The trial court should not have usurped this fact-finding role. B. There is a Genuine Issue of Fact on the Question of Whether Guardsmark "Regarded" DeForrest as Being Substantially Limited in the Major Life Activity of Working. The superior court also held that there is no triable issue of fact as to whether DeForrest has a disability on the ground that Guardsmark regarded him as having a substantially limiting impairment. See 42 U.S.C. 12102(2)(C) (including in definition of "disability" "being regarded as having such an impairment"). This conclusion cannot be sustained in the face of significant evidence, including Guardsmark's own words and deeds, that it regarded DeForrest as substantially limited in his ability to work. An individual may have a disability within the meaning of the ADA not by virtue of limitations caused by an impairment he has, but by virtue of the perceptions and actions of an employer in treating him as if he were substantially limited in a major life activity. In determining whether an individual is "regarded as" having an impairment that substantially limits a major life activity, it is unimportant whether the plaintiff is actually substantially limited. The focus in on the employer's perception and treatment of the plaintiff. See School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987) ("By amending the definition of 'handicapped individual' to include . . . those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment.") (emphasis added); 29 C.F.R. 1630, Appendix (Interpretive Guidance), at p. 404 ("[a]n individual satisfies the first part of [the definition of regarded as having a disability in the ADA regulations] if the individual has an impairment that is not substantially limiting, but the covered entity perceives the impairment as being substantially limiting") (emphasis added); E.E. Black, 497 F. Supp. at 1097 (under similar language of Rehabilitation Act, Congress' "intent was to protect people who are denied employment because of an employer's perceptions, whether or not those perceptions are accurate"). In evaluating how the employer "regarded" an individual, a court must look both at the employer's subjective beliefs and its objective actions. See EEOC Compliance Manual 902.8, at 5326 (in determining whether an individual is regarded as having a disability, "one must examine the employer's perception and treatment of the charging party"). Both what the employer believed about the individual, and its actions towards him, inform the ultimate determination of whether it regarded him as substantially limited. For this reason, it is not enough for an employer merely to assert that it did not believe an applicant was substantially limited, especially if its actions reveal a contrary perception. Among the major life activities that can be limited by a disabling condition is the activity of "working." See 29 C.F.R. 1630.2(i) (defining "major life activities" to include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working"). The Commission's regulations provide that an impairment substantially limits an individual in the activity of working if he or she is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. 1630.2(j)(3)(i). Thus, the relevant question to ask where the plaintiff claims an employer regarded him as substantially limited in the major life activity of working is whether the employer regarded the plaintiff as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes." There is ample evidence that Guardsmark regarded DeForrest's hearing impairment as restricting him with respect to a class of jobs, and that it so treated DeForrest in refusing to hire him. Guardsmark acknowledged that it refused to consider DeForrest for employment as a supervisor of security guards because it believed that his hearing impairment "prevents him from performing the essential duties of a security guard as delineated by Guardsmark." (A.A. 44). It argues, however, that it did not "regard" DeForrest as unable to perform a class or range of jobs -- but only the specific position of a security guard or supervisor for Guardsmark. Nevertheless, in explaining why it believes that DeForrest and other persons who use hearing aids cannot safely perform security duties for Guardsmark, the company did not point to anything unique about its security positions. Cf. E.E. Black, 497 F. Supp. at 1099 (positing hypothetical cases where individual is regarded as disqualified for a job solely because of site-specific conditions, such as the presence of a substance to which he is allergic, or the location in a high-rise where the person is acrophobic). Instead, it has relied on factors that are common to all security positions; indeed, to all law enforcement positions in general. In its summary judgment papers, for example, the only "essential function" for a security guard Guardsmark identified was "to protect the safety of his customers." (A.A. 44). Despite the evidence showing that DeForrest had performed that very function successfully in his prior job while wearing a hearing aid, Guardsmark asserted that he could not perform this function "because the use of a hearing aid does not eliminate the safety risk created by Plaintiff's hearing condition." (A.A. 44). By arguing that DeForrest could not "protect the safety of his customers," Guardsmark is, therefore, effectively asserting that DeForrest was substantially limited in his ability to perform the entire class of security jobs. Where an employer refuses to hire an applicant on the basis of qualities or perceptions that would broadly disqualify that individual from a class of jobs, that is the very definition of "regarding" the person as substantially limited in his ability to work. See E.E. Black, 497 F. Supp. at 1099 ("A person who is disqualified from employment in his chosen field has a substantial handicap to employment, and is substantially limited in one of his major life activities."); Partlow v. Runyon, 826 F. Supp. 40, 44 (D.N.H. 1993) ("the proper test is whether the impairment, as perceived, would affect the individual's ability to find work across the spectrum of same or similar jobs") (emphasis in original). More specifically, Guardsmark argued that, without his hearing aid, DeForrest's impairment "prevents [him] from hearing in noisy and enclosed places," (A.A. 43), and that, even with the aid he could not perform the position because "in emergency situations [his] hearing aid is most likely to fail." (A.A. 43- 44). This rationale would disqualify DeForrest for the whole class of jobs in security or law enforcement. Further, there appears to be nothing unusual about the particular position at issue or the conditions under which the job is performed for Guardsmark. Thus, there is at the least a triable issue of fact with respect to whether the Guardsmark regards DeForrest as having a substantially limiting impairment. Cf. Forrisi, 794 F.2d at 935 (plaintiff's fear of heights made him unable to perform position only in the specific conditions of a high-rise building; employer's perception that he could not perform that job did not mean that it "doubted Forrisi's ability to work in his chosen occupation of utility systems repair"); Partlow, 826 F. Supp. at 46 (where employer actually imposes specific job duties and requirements that differ from those of other employers in a field, its refusal to hire plaintiff would not mean it regarded him as "substantially limited" in working); 29 C.F.R. 1630.2(l)(1) (1995) (individual has a disability if he "[h]as a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation") (emphasis added). Guardsmark has never disputed that widespread application of its criteria by other security firms would result in a substantial limitation on DeForrest's ability to work. Instead, it has argued that it does not regard DeForrest as substantially limited because it believes that he could work for other security firms which do not apply those criteria. (A.A. 37) ("Plaintiff's minor hearing condition precludes only his employment as a Guardsmark security officer, but Plaintiff is, and has been, able to perform his duties as a security guard for other employers with less stringent hiring criteria.") (emphasis in original). This argument is insufficient to demonstrate that Guardsmark did not regard DeForrest as substantially limited. Self-serving statements by company officials that they subjectively believe that an applicant can perform similar work for other employers must be tested by a fact-finder, asking whether there is actually something different about the job responsibilities or working conditions which would mean that the belief itself would not be broadly disqualifying. As the court explained in E.E. Black, 497 F. Supp. at 1100: [A]n employer with some aberrational type of job qualification . . . that screens out impaired individuals who are capable of performing a particular job, should not be able to say, "No one else has this job requirement, so the impairment does not constitute a substantial handicap to employment, and the applicant is not a qualified handicapped individual." Guardsmark is attempting to assert precisely what the federal district court in E.E. Black warned against: an "aberrational" standard, reflecting a belief which Guardsmark alleges is shared by no (or few) other employers, which is not supported by genuine differences in Guardsmark's security positions compared with other employers. In the absence of evidence that Guardsmark's positions, or the circumstances under which they are performed, are unique, this argument must fail as it did in E.E. Black; certainly, there is at least a disputed question of fact requiring resolution at trial of this issue. Since both the employer's subjective perception and its objective actions are relevant to the "regarded as" inquiry, see supra page 11, the mere fact that an employer does not hire an applicant is not alone enough to establish conclusively that it regarded him as substantially limited in his ability to work. For example, as we have discussed, a position may be sufficiently unique that the employer's belief that an individual is unable to perform it would not mean it regarded his ability to work as substantially limited. See Forrisi, 794 F.2d at 934-35 (rejecting plaintiff's argument that employer "must have regarded [him] as substantially limited in his ability to work when [it] found him unable to perform his job"); Tudyman v. United Airlines, 608 F. Supp. 739, 746 (C.D. Cal. 1984) ("refusal to hire someone for a single job does not in and of itself constitute perceiving the plaintiff as a handicapped individual"). Here, however, Guardsmark's decision, combined with the lack of any apparent differences in this position, and the views Guardsmark has expressed tending to show that it did, in fact, regard DeForrest as having a substantially limiting impairment, is evidence from which a fact-finder could find the required perception. Unlike Tudyman, for example, where the plaintiff was a body-builder who exceeded an airline's maximum weight restriction for flight attendants, and the evidence showed that the "[d]efendant merely regards plaintiff as not being under a certain weight," id., there is probative evidence here that Guardsmark not only disqualified DeForrest on the basis of his hearing impairment, but also that it perceived him as having a physical disorder that substantially limits his ability to work as a security guard. Thus, its actions are evidence from which a jury could infer the state of its perceptions, and DeForrest need adduce no further evidence of Guardsmark's subjective beliefs to withstand summary judgment. CONCLUSION For the reasons stated herein, the Commission respectfully requests that this Court reverse the judgment of the trial court and remand the case for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __________________________ SAMUEL A. MARCOSSON Attorney EEOC Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4724 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served by mailing them first class, postage prepaid, to the following counsel of record: Robert Cassel, Esq. Tyler Brown, Esq. Jackson, Lewis, Schnitzler & Krupman 525 Market St., Suite 3400 San Francisco, CA. 94105-9400 ______________________ Samuel A. Marcosson EEOC Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4724