IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _______________________________________________________ No. 07-3914 _______________________________________________________ MICHAEL GERMANO, Plaintiff-Appellant, v. INTERNATIONAL PROFIT ASSOCIATION, INC., INTEGRATED BUSINESS ANALYSIS, INC., and INTERNATIONAL TAX ADVISORS, INC., Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 06 cv 5638 Honorable George W. Lindberg, Presiding _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF- APPELLANT AND IN FAVOR OF REVERSAL _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7042 Washington, D.C. 20507 (P) (202) 663-4724 (F) (202) 663-7090 annenoel.occhialino@eeoc.gov TABLE OF CONTENTS STATEMENT OF INTEREST ...................................................... 1 ISSUES PRESENTED ........................................................... 1 STATEMENT OF THE CASE ...................................................... 2 1. Course of Proceedings ............................................2 2. Statement of the Facts ......................................... 3 3. District Court Proceedings .....................................8 ARGUMENT .................................................................. 11 THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO ITA BECAUSE GERMANO PRESENTED SUFFICIENT EVIDENCE TO ALLOW A REASONABLE JURY TO FIND THAT ITA REVOKED ITS INTERVIEW OFFER BECAUSE OF HIS DISABILITY . . . . . . . . . . . . . . . . 11 A. Statements made via a third-party operator during a TDD relay service call are admissible under Fed. R. Evid. 801(d)(2)(C) and (D)................................................................... 11 B. Germano established a jury question as to whether ITA's failure to interview him was due to his disability. .............................. 21 CONCLUSION ................................................................ 29 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES DCS Sanitation Mgmt., Inc. v. OSHA, 82 F.3d 812 (8th Cir. 1996) . . . . .15, 16 Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001) . . . . . . . passim Lee v. United States, 198 F. 596 (7th Cir. 1912). . . . . . . . . . .10, 12, 13 Lindahl v. Air France, 930 F.2d 1434 (9th Cir. 1991) . . . . . . . . . . . . 28 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) . . . . . . 26 Timmons v. General Motors Corp., 469 F.3d 1122 (7th Cir. 2006) . . . . . . . 25 United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985) . . . . . . . . . . 15 United States v. Beltran, 761 F.2d 1 (1st Cir. 1985) . . . . . . . . . . 15, 16 United States v. Campos, Nos. 85-5583, 85-5584, & 86-5501, 1987 WL 37180 (4th Cir. April 2, 1987). . . . . . . . . . . . . . .15, 16 United States v. Cordero, 18 F.3d 1248 (5th Cir. 1994) . . . . . . . . . 15, 16 United States v. DaSilva, 725 F.2d 828 (2d Cir. 1983) . . . . . . . . . .passim United States v. Hubbard, 22 F.3d 1410 (7th Cir. 1994) . . . . . . . . . . 11 United States v. Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000) . . . . . . . 20 United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991) . . . . 16, 17, 18, 19 United States v. Space Hunters, Inc., No. 00 Civ. 1781, 2004 WL 26574608 (S.D.N.Y. Nov. 23, 2004) . . . . . . . . . . . . . . . 14 STATE CASES Commonwealth v. Vose, 157 Mass. 393, 32 N.E. 355 (1892) . . . . . . . . . . 13 TABLE OF CONTENTS (con't) FEDERAL STATUTES 42 U.S.C. §§ 12111-17. . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. § 225(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 17 47 U.S.C. § 225(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 47 U.S.C. § 605(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 FEDERAL REGULATIONS 29 C.F.R. § 1630.2(m). . . . . . . . . . . . . . . . . . . . . . . . . . . 22 47 C.F.R. § 64.604(a)(1). . . . . . . . . . . . . . . . . . . . . . . . 17, 19 47 C.F.R. § 64.604(a)(2)(i). . . . . . . . . . . . . . . . . . . . . . . . 20 47 C.F.R. § 64.604(a)(2)(ii). . . . . . . . . . . . . . . . . . . . . . . . 18 FEDERAL RULES Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Evid. 801(d)(2). . . . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Evid. 807. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 MISCELLANEOUS Telecommunications Services for Individuals with Hearing & Speech Disabilities, 6 F.C.C.R. 4657 (July 26, 1991). . . . . . . . . . . . . . . 21 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is tasked by Congress with the administration and interpretation of the Americans with Disabilities Act, 42 U.S.C. §§ 12111-17, and with its enforcement against private employers. This appeal raises an important issue concerning the admissibility of a statement made by an employer to an applicant via a telecommunications relay service. This appeal also raises important issues concerning the amount of evidence needed under the Americans with Disabilities Act to establish a prima facie case of disability discrimination and a factual question as to pretext. Because this Court's resolution of this appeal will affect the Commission's enforcement and the ability of hearing-impaired individuals to proceed with their disability claims, the Commission offers its views to the Court. See Fed. R. App. P. 29(a). ISSUES PRESENTED 1. Whether the district court erred in holding that statements made by an employer to an applicant via a third-party operator during a telecommunications relay service call constitute inadmissible hearsay and are not admissible under Fed. R. Evid. 801(d)(2)(C) or (D). 2. Whether the district court erred in concluding that the plaintiff had failed to establish a prima facie case of disability discrimination, and whether there was sufficient evidence to establish a jury question as to pretext. STATEMENT OF THE CASE 1. Course of Proceedings On October 17, 2006, Plaintiff Michael Germano filed a complaint alleging, inter alia, that Defendants violated Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-17, when it refused to hire him as a tax consultant because of his disability. A1.<1> On September 12, 2007, Defendants International Profit Associates, Inc., Integrated Business Analysis, Inc., and International Tax Advisors, Inc. ("ITA") filed a renewed motion for summary judgment. R.52.<2> On November 1, 2007, the district court granted the motion and entered final judgment in favor of ITA. BEX1<3>; A3. Germano filed a motion for reconsideration, which the court denied in a November 17, 2007, minute order. R.79; BEX2. Germano filed a timely notice of appeal. R.96. 2. Statement of Facts Plaintiff Michael Germano is profoundly deaf in both ears. R.62-35, 2.<4> On June 9, 2005, Germano applied for a position as a tax consultant with ITA. R.62-16. The job posting to which he responded stated that a master's degree was required as well as two to five years of relevant work experience.<5> It also stated that experience in income tax, IRS audit representation, business entity structure, asset protection, tax defense, estate planning, succession planning, deferred compensation structuring, engagement development, and management was desirable. R.62-12 through 62-14. Germano e-mailed his application, which consisted of a cover letter and his resume, to Ron Sage. R.62-16. Germano's application revealed that he had earned his J.D. and L.L.M in Taxation from Georgetown University and had passed the NY Bar exam. Id. His resume also revealed that while in law school, Germano worked for nine months in a tax clinic representing low-income clients involved in state and federal tax controversies and that from March 2003 through June 2005, Germano worked as a claims consultant preparing compensation claims for individuals who were sex abuse victims at state institutions. R.62-16, pg.3. After Sage received Germano's application, he forwarded it via e-mail on June 10, 2005, to Tim Foster, a Tax Services Director. R.62-6 (Foster Depo. 57- 58). On approximately June 15, 2005, Sage left Germano a phone message asking that Germano call him to discuss his application. A7, 18; R.62-17, pg.2. That day, Germano returned Sage's call. R.62-17, pg.2. Because Germano is deaf, he used a telecommunication device for the deaf (TDD) to make the call through a TDD relay service, which enables hearing-impaired individuals to communicate with hearing-individuals using a third-party operator. R.53, 71. The hearing- impaired individual types a message into a teletypewriter (TDD) device, and the operator reads the message to the hearing individual. Id. 72; R.62-5, pg.32 (Depo. 124-25). The operator then types into a computer in real time what the hearing individual says, and that message is transmitted to the hearing-impaired individual's TDD screen. Id. Because the phone call was a TDD call, Sage inferred that Germano was deaf. R.53, Ex. G, pg.135. According to Germano, Sage invited him to interview, offered to pay for his transportation expenses, and told him that Sage would get back to him after checking with the individuals who scheduled the interviews. R.62-5, pg.38 (Germano Depo. 148). According to Sage, however, he said that if they were interested, the next step would be to schedule an interview in Illinois. R.53, Ex.G, pg.133. After the interview, Sage discussed Germano's application with Foster. Id., pg.134. Sage told Foster that "this was a TDD phone call." Id., pg.135. Foster said that they would pursue other candidates. Id. On June 21, 2005, Sage e-mailed Germano that "after further consideration, ITA has elected to pursue other candidates whose qualifications better fit the needs of our client base." R.62-18, pg.2. Germano immediately e-mailed Sage back asking why he was "offered an interview on Friday . . . and now it is being withdrawn . . . . Does the opportunity to interview being revoked pertain to my deafness?" Id., pg.1. Germano also explained that he was able to converse through lipreading and speaking and that he utilized sign language interpreters during important meetings or other meetings deemed necessary. Id. Sage e-mailed a reply stating, "honestly, the decision makers did discuss the topic of your hearing, but felt this was an obstacle that was not insurmountable." Id. Foster testified that it was Sage's job to call applicants to assess whether they were willing to travel and whether they understood that the position was 100% commission. R.53, Ex. F, pg.43-44. If the applicant passed this initial screening, Sage would give Foster a hard copy of the application. Id., pg.44. Foster would review the application for "working experience" and then decide if that experience suggested that the applicant would be a successful tax consultant. Id. If he decided that the applicant would, he told Sage, who would then set up an interview. Id. Foster admitted that on June 10, Sage had e-mailed him Germano's application, but he testified that, consistent with his practice of waiting to receive hard copies from Sage, Foster did not review it at that time. Id., pg.58-59. Foster also testified that after ITA failed to hire Germano, a hearing-impaired individual was hired. Id., pg.80. Sage testified that by his reference in his June 21, 2005, e-mail to "decision makers," he meant Foster, although he also testified that he meant both he and Foster. R.53, Ex. G, pg.141; R.62-1 (Sage Depo. 146). Sage could not recall which other candidates he and Foster had decided to pursue in lieu of Germano. R.53, Ex.G, pg.144. Foster conceded that ITA considers candidates lacking two to five years of work experience. R.53-Ex.B (Foster Aff. 11). In fact, around the time of Germano's non-selection, two of the seventy tax consultants ITA hired lacked the requisite two to five years of experience: 1) applicant "TML," who was hired on January 24, 2005; and 2) applicant "MFG," who was hired on August 21, 2006. R.62-27; R.62-26. "TML's" resume shows that she had fundraising experience as a "Finance Director" for the "Republican Party of Kentucky" and had worked for a year at a law firm representing consumer lenders in residential foreclosures but that she lacked any work experience at all in the areas listed on the job posting as desirable. See R.62-6, pgs.33-35 (Foster Depo. 129-138) (testifying that TML's resume did not reveal any estate planning work, law firm tax experience, advising business owners as to legal and tax matters, solo attorney experience, Big Four accounting experience, or practice before the IRS); R.62-27. Applicant "MFG's" resume reveals that he had worked as a senior financial planner for no more than 15 months. R.62-26, pg.3. Neither TML nor MFG had, like Germano, an L.L.M. in taxation. Germano filed a charge of discrimination, R.62-17, and the EEOC conducted an investigation. On February 20, 2006, ITA submitted a position statement prepared by Larry Lang, the Executive Director of Human Resources.<6> R.62-3, pg.19 (Lang Depo. 74). In the position statement, Lang stated that ITA did not hire Germano because he lacked the requisite experience and because "another more qualified applicant was hired into the position," and he identified that applicant as Rick Enriquez. Id. at pg.20 (Lang Depo. 78-80). In his deposition, however, Lang admitted that Enriquez had actually been hired before Germano applied. R.62-3, pg.21 (Lang Depo. 83); see also R.62-9 (6/7/05 Enriquez offer letter); 62-8 (6/9/05 Enriquez acceptance letter). In a March 15, 2006, letter to the EEOC, Lang stated that James Vordtriede and Rick Enriquez applied for the same position as Germano and that Enriquez was interviewed for the position. R.62-7, pg.3. Lang also stated that the "decision makers" to whom Sage referred in his June 21, 2005, e-mail were Ebb Field, Tim Foster, John Murnane, and Craig Koop. Id. On April 18, 2006, the EEOC issued a Determination finding cause to believe that ITA denied Germano the possibility of a job as tax consultant because of his disability. R.62-23. 3. District Court Proceeding: On November 1, 2007, the district court issued an order granting summary judgment to ITA. BEX1. The court first considered whether Germano had offered any evidence demonstrating intentional discrimination under the "direct" method. Id. at 4. Although Germano had argued that the timing of ITA's revocation of its June 15, 2005, interview offer was suspicious and would allow a jury to infer discriminatory intent, the court concluded that Germano's testimony that Sage had offered him an interview during their June 15, 2005, phone call was hearsay. Id. at 5-6. According to the court, Sage's interview offer was not an admission of a party-opponent under Fed. R. Evid. 801(d)(2) "because the communications between the third-party operator and Plaintiff are hearsay" since Plaintiff offered them to prove the truth of the matter asserted. Id. at 6. In a footnote, the court added that Germano's testimony was unreliable because he chose the TDD relay service, the operator could have made a mistake, Germano failed to offer evidence as to the operator's qualifications or experience, and ITA's actions were "clearly inconsistent" with Germano's testimony. Id. at n.3. Because neither party had deposed the operator, obtained his or her affidavit, or secured an admissible transcript of the conversation, the court concluded that Germano had no evidence that ITA had offered to interview him. Id. The court also rejected Germano's argument that he had succeeded under the direct method by offering evidence discrediting ITA's reason for cancelling the interview. Id. at 6-8. Next, the court concluded that Germano had also failed to establish a jury question under the "indirect," or McDonnell-Douglas burden-shifting, method. Id. at 8. The court concluded that Germano had failed to offer any admissible evidence to establish the fourth prong of the prima facie case, i.e., that the circumstances indicated that it was more likely than not that Germano's disability was the reason he was not hired. Id. at 9. While the court agreed that "the fact that Enriquez was not hired . . . to fill the position for which Plaintiff applied may be relevant to . . . Defendant's credibility," the court concluded that it was "insufficient to defeat Defendants' motion." Id. at 11. The court also concluded that ITA had consistently stated to the EEOC and in its pleadings that it had not hired Germano because it sought more qualified individuals. Id. at 12. The court further reasoned that any inconsistency about who the decisionmakers were was immaterial, and that Sage's failure in his June 21, 2005, email to refute Germano's assertion that he had been offered an interview did not establish a jury question. Id. at 12-14. Thus, the court concluded, Germano had failed to identify "a single fact or piece of evidence" creating a factual question as to the fourth prong of the prima facie case. Id. at 14. Germano filed a motion for reconsideration. He argued that his testimony as to Sage's interview offer was admissible under Fed. R. Evid. 801(d)(2) and also under the residual catchall provision of Fed. R. Evid. 807. R.85. He further argued that the court had generally erred in granting summary judgment. Id. In a November 15, 2007, minute order, the district court denied Germano's motion. BEX2. The court concluded that Germano had not met the standard for granting a Rule 59(e) motion because his summary judgment filings failed to raise any of the legal arguments presented in his motion for reconsideration. Id. at 2. Moreover, the court said, Germano's arguments failed to establish a manifest error of law. Id. The district court reasoned that this Court's holding in Lee v. United States, 198 F. 596 (7th Cir. 1912), which held that the testimony of an inspector as to what a criminal defendant said via a Chinese interpreter was admissible, was inapposite because it "involved an interpreter, not a third-party operator," the inspector had submitted a contemporaneous written report made of the statements, and the interpreter had testified that he had interpreted accurately. Id. at 3. The court also concluded that decisions Germano cited from outside the Seventh Circuit were distinguishable and that Fed. R. Evid. 807 did not apply because Germano's testimony was not reliable or trustworthy. Id. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO ITA BECAUSE GERMANO PRESENTED SUFFICIENT EVIDENCE TO ALLOW A REASONABLE JURY TO FIND THAT ITA REVOKED ITS INTERVIEW OFFER BECAUSE OF HIS DISABILITY. A. Statements made via a third-party operator during a TDD relay service call are admissible under Fed. R. Evid. 801(d)(2)(C) and (D). The district court erred in concluding that Germano's testimony about what Sage said to him during their TDD phone call did not qualify as a non-hearsay admission of a party-opponent under Fed. R. Evid. 801(d)(2).<7> Had Germano been a hearing individual, his testimony that during their phone conversation Sage offered him an interview would be admissible under Fed. R. Evid. 801(d)(2)(A) as a party's own statement made in a representative capacity and offered against that party. See, e.g., United States v. Hubbard, 22 F.3d 1410, 1417 (7th Cir. 1994); United States v. DaSilva, 725 F.2d 828, 831 (2d Cir. 1983). The specter of hearsay arises, however, because Sage's interview offer was conveyed through a third- party operator. The district court erred in reasoning that Germano's testimony did not fall under the non-hearsay exceptions of Fed. R. Evid. 801(d)(2)(C) and (D). These rules provide that a statement offered against a party made by "a person authorized by the party to make a statement concerning the subject," or by "the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" is not hearsay. Id. The district court's cursory conclusion that Rule 801(d)(2) did not apply was erroneous because the TDD relay operator qualifies as "a person authorized by [ITA] to make the statement" under Rule 801(d)(2)(C) and/or was ITA's "agent" under Rule 801(d)(2)(D). Seventh Circuit law, as well as the law of every circuit to address the issue of the admissibility of statements made through translators, supports the conclusion that ITA either authorized the third-party operator to make the interview offer or that the operator was ITA's agent. In Lee v. United States 198 F. 596, 601 (7th Cir. 1912), this Court held that an inspector's testimony about statements the defendant made via a Chinese interpreter was admissible in court. The court of appeals explained, "[w]hen a conversation takes place between a person whose declaration is admissible in evidence and another, and they call in or assent to the use of an interpreter in order to enable them to speak with each other, each one adopts a mode of intercommunication in which they necessarily assume that the interpreter is trustworthy, and which makes his language presumptively their own." Id. (emphasis added). Like the defendant in Lee, Sage "assent[ed]" to the use of the operator during the TDD relay service call by willingly participating in the call, and his assent meant that ITA implicitly authorized the operator to relay the invitation to interview to Germano and/or authorized the operator to act as ITA's agent. Id.; see Fed. R. Evid. 801(d)(2)(C) & (D). Although, as the district court noted, the translator in Lee testified that he had translated accurately, this Court explicitly stated that "[t]he law is well settled in favor of admissibility without the necessity of even calling the interpreter." Lee, 198 F. at 601 (emphasis added). Accordingly, contrary to the district court's reasoning, the unavailability of the operator in this case does not distinguish Lee. The district court also erred in reasoning that Lee is inapposite because in that case the inspector offered the contemporaneous written notes he had made of the translated conversation. BEX2, pg. 3 (citing Lee, 198 F. at 599-603). Nothing in Lee suggests that this was a critical factor in the case or that the contemporaneous notes of a translated conversation are required in order to find the statements admissible. In fact, the opinion suggests to the contrary. In Lee this Court quoted at length with approval from a passage in Commonwealth v. Vose, 157 Mass. 393, 32 N.E. 355 (1892), holding that the testimony of a witness as to translated statements of a doctor made prior to his conducting an abortion were admissible in the doctor's criminal trial. Lee, 198 F. at 601-02. Because nothing in the passage quoted from Vose suggests that the witness made contemporaneous notes of the conversation or offered them at trial, Lee cannot be read as holding that such notes are a prerequisite to a finding of admissibility of statements made via translators. The district court's conclusory assertion that Lee is distinguishable because it involved "an interpreter, not a third-party operator" is also unavailing. BEX2, pg.3. As discussed, infra, a third-party operator translating a TDD relay service call, like a foreign language interpreter, merely functions as a language conduit to facilitate the parties' communication. While no court of appeals opinions have addressed the admissibility of statements made via third-party operators during a TDD relay service call, at least one district court has relied upon the testimony of a deaf individual as to statements made via a third-party operator during a TDD relay service call. See United States v. Space Hunters, Inc., No. 00 Civ. 1781, 2004 WL 26574608, at *6 (S.D.N.Y. Nov. 23, 2004). A number of court of appeals have also addressed the issue of the admissibility of statements made via language translators. All of these courts have, consistent with this Court's opinion in Lee, concluded that in the absence of evidence suggesting that the translator was biased or that the translation was inaccurate that the translator was an "agent" or "language conduit" of the defendant. In the seminal case United States v. DaSilva, 725 F.2d 828, 832 (2d Cir. 1983), the Second Circuit held that "[w]here . . . there is no motive to mislead and no reason to believe the translation is inaccurate, the agency relationship" under Rule 801(d)(2)(C) or (D) "may properly be found to exist," as the "translator is no more than a 'language conduit.'" Other courts have agreed with the reasoning of DaSilva and also held that translated statements are admissible. DCS Sanitation Mgmt., Inc. v. OSHA, 82 F.3d 812, 815-16 (8th Cir. 1996) (holding that employee statements made via translator employed by OSHA were admissible under 801(d)(2)(D) against employer and rejecting argument that translator added additional level of hearsay); United States v. Cordero, 18 F.3d 1248, 1253 (5th Cir. 1994) (applying plain error review and concluding that statements made via translator were not hearsay; stating that absent "unusual circumstances, an interpreter is no more than a language conduit and therefore his translation [does] not create an additional level of hearsay") (internal quotation and citation omitted); United States v. Campos, Nos. 85-5583, 85-5584, & 86-5501, 1987 WL 37180, at *3 (4th Cir. April 2, 1987) (holding that defendants' statements translated by state police officer and made to FBI agent were not hearsay); United States v. Beltran, 761 F.2d 1, 9 (1st Cir. 1985) (following DaSilva and holding that defendants' statements made via translator were admissible under Fed. R. Evid. 801(d)(2); stating that "the prevailing view is that the translator is normally to be viewed as an agent of the defendant"); United States v. Alvarez, 755 F.2d 830, 859-60 (11th Cir. 1985) (following DaSilva and holding that statements made via translator were admissible under Fed. R. Evid. 801(d)(2)(C) or (D) because there was no reason to believe that translator was biased or had translated inaccurately). Significantly, while the translator testified in some of these cases,<8> in many of them the translator evidently did not,<9> and the decisions make clear that the testimony of the translator is not necessary. The Ninth Circuit has taken a case-by-case approach to the admissibility of translated statements under 801(d)(2) that, like the Second Circuit's approach, looks to the reliability of the translator. United States v. Nazemian, 948 F.2d 522, 527-28 (9th Cir. 1991). According to the Ninth Circuit, whether a translator's statements are attributable "to the defendant under the agency or conduit theory" depends upon four factors: 1) "which party supplied the interpreter"; 2) "whether the interpreter had any motive to mislead or distort"; 3) the interpreter's qualifications and language skill; and 4) "whether actions taken subsequent to the conversation were consistent with the statements as translated." Id. at 527 (holding that translated statements made via translator to government agent were admissible). In this case, as in nearly all cases where a TDD relay service is used, the statements made via a TDD relay operator are admissible under Rule 801(d)(2) because "there is no motive to mislead and no reason to believe the translation is inaccurate." DaSilva, 725 F.2d at 832; see also Nazemian, 948 F.2d at 527 (in applying Rule 801(d)(2), looking to see whether the interpreter had a motive to "mislead or distort"). To the contrary, federal law requires that the translation be accurate. Title IV of the ADA mandates that telephone companies provide telecommunications relay services for hearing-impaired individuals. 47 U.S.C. § 225(c). The telecommunications relay service must enable a hearing-impaired individual "to engage in communication by wire . . . with a hearing individual in a manner that is functionally equivalent to the ability of an individual who does not have a hearing impairment . . . to communicate . . . ." 42 U.S.C. § 225(a)(3). Pursuant to Title IV of the ADA, the Federal Communications Commission adopted regulations requiring that operators, called "communications assistants," "be sufficiently trained," "have competent skills in typing, grammar, spelling, interpretation of typewritten ASL, and familiarity with hearing and speech disability cultures," "possess clear and articulate voice communications," be able to type at least 60 word per minute, and transmit conversations "in real time." 47 C.F.R. § 64.604(a)(1). Additionally, the regulations explicitly prohibit a relay service operator "from intentionally altering a relayed conversation" and further require that operators "relay all conversation verbatim unless the relay user specifically requests summarization." 47 C.F.R. § 64.604(a)(2)(ii). Thus, the operator in this case who translated the TDD relay service was required to do so by law, and was required to do so accurately. In the absence of any evidence suggesting that the operator in this case was biased or violated the law by translating inaccurately, the operator was "no more than a 'language conduit,'" and the agency relationship can properly be found to exist under Rule 801(d)(2)(C) and (D). DaSilva, 725 F.2d at 832. Application of the Ninth Circuit's additional factors to address the admissibility of translated statements also supports the admissibility of Sage's interview offer. The first factor, which party supplied the interpreter, weighs in favor of admissibility. Nazemian, 948 F.2d at 527. The courts of appeals have uniformly held that even when a translator is supplied by the government to a criminal defendant, this fact "is not dispositive of the agency question." Id. (citing cases). While the district court in this case reasoned that Germano's testimony was unreliable because he "chose the TDD relay service," the phone company was - as discussed above - required by federal law to provide the operator; the operator was not someone hired by Germano for the purpose of translating the phone call. Accordingly, the operator is best viewed as a neutral third-party, and this factor therefore weighs in favor of the admissibility of Sage's interview offer. Similarly, consideration of the "interpreter's qualifications and language skills" counsels in favor of the admissibility of Sage's statement. Nazemian, 948 F.2d at 527. While the district court faulted Germano for failing to provide any evidence as to the operator's qualifications, federal regulations, as discussed above, set forth detailed qualifications for communications assistants that include training, good grammar and punctuation skills, familiarity with hearing disabled culture, minimum typing speed, and the ability to translate in real time. See 47 C.F.R. § 64.604(a)(1). Accordingly, there is not only an absence of evidence suggesting that the operator had inferior qualifications and language skills, but there is the presumption, via the federal regulations, that the operator was properly trained and skilled. Finally, contrary to the district court's conclusion, Germano offered evidence that "actions taken subsequent to the conversation were consistent with the statements as translated." Nazemian, 948 F.2d at 527-28 (holding that evidence that defendant's actions were consistent with testimony about translated statements "provid[ed] additional evidence that the translations were accurate"). Germano's June 21, 2005, e-mail to Sage asking why his interview offer was revoked is clearly consistent with his testimony that Sage had offered him an interview. Additionally, Sage's conspicuous failure to refute Germano's assertion in his June 21, 2005, e-mail that Sage had offered him an interview is also consistent with Germano's testimony he had been extended an interview offer. Accordingly, this factor also weighs in favor of admitting Sage's statements under the agency/conduit theory. Cf. United States v. Martinez-Gaytan, 213 F.3d 890, 892- 93 (5th Cir. 2000) (holding that translator was not a mere language conduit where defendant's subsequent actions were inconsistent with translated statements, translator was supplied by the government, and there was no evidence as to the translator's skills or qualifications). Moreover, it would have been both practically and legally impossible, as the district court held, for Germano to have offered the operator's testimony, the operator's affidavit, or an admissible transcript of the conversation. There is no evidence that the operator ever identified him or herself to Germano and no reason to believe that, even if he or she had, that the operator would have recalled a conversation translated years ago. As for a transcript of the phone call, operators are prohibited from "[k]eeping records of the content of any conversation beyond the duration of the call." 47 C.F.R. § 64.604(a)(2)(i). Thus, the law actually prohibits the operator from creating a transcript of the phone call. Operators are also prohibited from "disclosing the content of any relayed conversation," except as required by Section 705 of the Communications Act, 47 C.F.R. § 64.604(a)(2)(i), which authorizes divulging conversations pursuant to a subpoena or "on demand of other lawful authority." 47 U.S.C. § 605(a)(5)-(6). The FCC has emphasized that these exceptions are "very limited" and apply only to "specific incidents of possible law violations," meaning that Germano would not have been able to subpoena the operator even if he could have identified him or her. Telecomms. Servs. for Individuals with Hearing & Speech Disabilities, 6 F.C.C.R. 4657, 4660 & n.14 (July 26, 1991). Moreover, even if Germano had identified the operator and subpoenaed him or her, there would be no record of the call, as the law prohibits the making of one. Accordingly, the court erred in concluding that Germano's testimony as to statements Sage made during the phone call did not fall under the non-hearsay exception of Fed. R. Evid. 801(d)(2)(C) and (D) because he failed to produce the operator, the operator's affidavit, or an admissible transcript. B. Germano established a jury question as to whether ITA's failure to interview him was due to his disability. Contrary to the district court's conclusion, Germano offered sufficient evidence establish a prima facie case under the McDonnell Douglas framework. To establish a prima facie case, an ADA plaintiff must show that: 1) he is disabled; 2) he was qualified, i.e., that he possessed the appropriate education and experience, and that he could perform the essential functions of the job with or without reasonable accommodation; 3) he suffered an adverse action; and 4) circumstances surrounding the adverse action indicate that it was more likely than not that his disability was the reason for the adverse action. Lawson v. CSX Transp., Inc., 245 F.3d 916, 922, 929 (7th Cir. 2001); 42 U.S.C. § 12112(a); 29 C.F.R. § 1630.2(m). ITA argued below that Germano failed to establish both the second and fourth prongs. Although the court did not address it, the evidence was more than sufficient to create a jury question as to the second prong, i.e., that Germano was qualified.<10> ITA conceded that Germano satisfied the educational requirements but argued below that he was not qualified because he lacked the required two to five years of relevant work experience. See also 42 U.S.C. § 12112(a) (prohibiting discrimination against qualified individuals); 29 C.F.R. § 1630.2(m) (qualified individual is one who meets experience requirements). Although it is undisputed that the vast majority of ITA's tax consultants had two to five years of relevant work experience, ITA concedes that two of its tax consultants - "MFG" and "TML" - were hired despite the fact that they lacked this experience. Accordingly, a reasonable jury could conclude that the two to five years work experience requirement was not a "genuine requirement" of the job and that Germano was therefore qualified. Lawson, 245 F.3d at 929-30 (concluding that the plaintiff had established a jury question as to whether he was qualified despite his purported lack of "experience demonstrating responsibility, safety, and dependability," and relying in part on evidence that the employer had hired individuals who lacked this experience). While ITA argued below that the two applicants without the requisite experience had at least some relevant work experience, review of "TML's" resume reveals that she lacked any work experience in the areas listed on the job posting as desirable. Foster conceded as much, testifying that "TML's" resume did not reveal any estate planning work, tax experience, solo attorney experience, Big Four accounting experience, or practice before the IRS. R.62-6, pgs.33-35 (Foster Depo. 129-138). While Foster testified that during her interview TML related that she had done some estate planning at the law firm where she worked, he admitted that this information was not on her resume, which states only that her law firm work involved residential foreclosures. R.62-6, pg.33 (Foster Depo. 130); see R.62-27, pg.3 (resume). Accordingly, Foster could not have relied upon it in deciding to interview her. Similarly, although Foster testified that "TML's" experience as a "Finance Director" for the "Republican Party of Kentucky" interested him because it involved "a skill set that is extremely valuable," fundraising is not listed on the job posting as relevant work experience, and Foster conceded that ITA's responses to the EEOC never included fundraising skills as an interview criteria. Id., pgs.33-34 (Foster Depo. 130-133); R.62-12 to 62-14. A reasonable jury could also conclude that Germano's nine months of experience working in the tax clinic constituted relevant work experience, putting him on par with "TML" (whose resume failed to reveal any relevant work experience) and "MFG" (who had fifteen months of relevant experience), and that Germano's LL.M. in taxation from Georgetown also offset his lack of two to five years of work experience. A reasonable jury could also conclude that ITA thought Germano was qualified based on the fact Sage extended him an interview offer. Since ITA had had Germano's application for several days before offering to interview him, and since there is undisputed evidence that Sage even forwarded Germano's resume to Foster prior to the interview offer (although Foster denies having looked at it), a reasonable jury could find that, in ITA's eyes, Germano was qualified. Germano also presented sufficient evidence to overcome summary judgment as to the fourth prong of the prima facie case, i.e., whether the circumstances surrounding his non-selection created a jury question as to whether it was "more likely than not that [Germano's] disability was the reason why [ITA] did not hire him." Lawson, 245 F.3d at 931.<11> A jury could find, based on Germano's testimony that Sage offered to interview him and on Sage's conspicuous failure in his June 21, 2005, e-mail to refute Germano's assertion that he had been offered an interview, that ITA did offer to interview Germano. It is also undisputed that before June 15, 2005, ITA had not realized that Germano was deaf, and that Foster and Sage discussed Germano's disability during the same conversation in which they decided not to interview him. While Sage e-mailed Germano that "the decision makers" felt that his deafness was "an obstacle that was not insurmountable," a jury could find, based on the wording of the e-mail and the fact the decision was made to revoke Germano's interview during a discussion of his disability, that ITA did consider Germano's deafness to be an "insurmountable" "obstacle." Additionally, while ITA produced evidence that the vast majority of its tax consultants had at least two years of relevant work experience, it is undisputed that ITA hired two candidates who lacked this experience. Taken together, this evidence was sufficient to establish the fourth prong. See id. (holding that the plaintiff had established the fourth prong by producing evidence that he informed decisionmakers that he was diabetic, he was not hired despite being qualified, most other applicants with his background were hired, and that there was a factual question as to whether work history was, as the employer claimed, the reason for his non-selection). Because ITA offered a legitimate, non-discriminatory reason for not selecting Germano - that it wanted to pursue more qualified candidates and/or that Germano was unqualified - Germano bore the burden of coming forward with sufficient evidence to allow a reasonable jury to find this reason a pretext for discrimination. Lawson, 245 F.3d at 931. "[F]or many of the same reasons why Mr. [Germano] . . . created a genuine issue of fact regarding the elements of the prima facie case, there is also sufficient evidence to permit a jury to conclude that the reason given by [ITA] as to why it did not hire Mr. [Germano] was pretextual." Id. As discussed above, ITA hired at least two other applicants who lacked the purportedly required two to five years of relevant work experience. Thus, Germano presented evidence that ITA's asserted justification for Germano's non- hire - that he was unqualified because all tax consultants were required to have two to five years of relevant work experience and Germano lacked that experience - was false. This evidence would therefore allow "the trier of fact to conclude that" ITA "unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."). Additionally, Germano offered evidence that ITA's decision to revoke his interview offer - which occurred immediately after ITA realized he was deaf and was made in the same conversation as a discussion of his disability - was suspicious. A reasonable jury could also find that ITA gave shifting reasons for Germano's non-selection, which would further support a jury's finding that ITA's reasons for rescinding Germano's interview offer were a pretext for discrimination. See Lawson, 245 F.3d at 931 n.13 (in pretext analysis, noting evidence suggesting that the employer had "produced other explanations in the past for the decision not to hire Mr. Lawson, some of which have not been accurate," and concluding that these "shifting justifications . . . provide another basis for concern regarding the company's credibility"). Sage's June 21, 2005, email to Germano did not state that his interview was revoked because he was unqualified. Instead, it stated that "other candidates['] experience better fit the needs of our clients." It was not until the EEOC investigation that ITA contended that Germano was unqualified because he lacked the two to five years of relevant work experience. A jury could also find that had Germano's lack of relevant work experience been the real reason he was not interviewed, Sage would have proffered this simple reason in his June 21, 2005, email to Germano. See Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) (concluding that employer's failure to provide "straightforward answer" to employee about reasons for non-promotion until after litigation began "might suggest that the [post-litigation] explanation was a later fabrication"). Additionally, the jury could find that Sage would not have forwarded Germano's application to Foster had Germano been unqualified. A jury could also find that ITA had offered shifting and discredited reasons for Germano's non-selection based on the fact that ITA told the EEOC during its investigation that Rick Enriquez was selected for the position over Germano but later acknowledged that Enriquez had accepted his position even before Sage called Germano. Additionally, ITA has been inconsistent in stating who the decisionmakers were. Although Lang told the EEOC that there were four decisionmakers - Ebb Field, Tim Foster, John Murnane, and Craig Koop - Sage testified inconsistently that he and Foster were the decisionmakers and that Foster was the decisionmaker, while Foster testified that he alone was the decisionmaker. Accordingly, a reasonable jury could find ITA's witnesses lacking in credibility and conclude that ITA's proffered legitimate, non-discriminatory reasons for refusing to interview Germano were a pretext for disability discrimination. Therefore, this Court should remand this case for trial. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for trial on Germano's claim of disability discrimination. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7042 Washington, DC 20507 (202) 663-4724 annenoel.occhialino@eeoc.gov CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,773 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Anne Noel Occhialino Attorney for Equal Employment Opportunity Commission CERTIFICATE OF SERVICE I hereby certify that two copies and one digital version of the foregoing brief were mailed, overnight, on Thursday, February 21, 2008, to each of the following: Uche O. Asonye Mark Pando Scott Fanning Asonye & Associates 11 South LaSalle St., Ste. 2140 Chicago, IL 60603 (312) 795-9110 Attorney for Plaintiff-Appellant Jacie C. Zolna Myron M. Cherry & Associates 30 North LaSalle St., Ste. 2300 Chicago, IL 60602 (312) 372-2100 Attorney for Defendants-Appellees Anne Noel Occhialino Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7042 Washington, DC 20507 (202) 663-4724 *********************************************************************** <> <1> "A*" refers to the plaintiff's separate appendix. <2> "R* refers to the district court docket number. <3> In conformance with Germano's brief, "BEX*" refers to the appendix attached to his brief. <4> For the sake of consistency, the Commission has also cited to the exhibits attached to Docket No. 62 by using the court's numbering at the center top of each page rather than by citing to the exhibit number. <5> ITA posted numerous job postings on monster.com. R.62-12 through 62-14. Germano was unsure which one he responded to, but they all require 2-5 years of relevant work experience. Id.; R.62-4, pg.5 (Germano Depo. 20). <6> Through an apparent omission on Germano's part, the position statement, which was Exhibit 16, was not actually filed with the court. Lang, however, testified as to its contents. <7> The Commission takes no position on Germano's additional argument that Sage's interview offer falls under other exceptions to the hearsay rule. <8> See, e.g., Da Silva, 725 F.2d 828; Beltran, 761 F.2d 1; DCS Sanitation, 82 F.3d 812. <9> See, e.g., Nazemian, 948 F.2d 522; Cordero, 18 F.3d 1248; Campos, 1987 WL 37180. <10> In its discussion below of whether Germano was qualified, ITA failed to argue that Germano was unable to perform the essential functions of the job with or without reasonable accommodation. R.52, pgs.8-10. ITA did argue, however, that summary judgment should be granted because Germano would have required the use of a full-time sign language interpreter, which would have imposed an undue hardship. Id., pg. 14. In our view, this was insufficient to preserve an argument that Germano had failed to establish a prima facie case because he could not perform the essential functions with or without reasonable accommodation. Even if this argument was properly raised, however, we note that Germano submitted evidence indicating that he did not need a full-time sign language interpreter. R.62-18. In any event, we think that this issue should be addressed, if necessary, by the district court in the first instance. <11> Germano argued below that he had established a jury question not only under the "indirect" method via the McDonnell Douglas framework but also under the "direct" method. This Court has acknowledged that if a plaintiff "can produce evidence to satisfy the fourth prong" of the prima facie case of the McDonnell Douglas analysis by showing that the circumstances surrounding the adverse action indicate that his disability likely caused the adverse action, then "he has satisfied the direct method using circumstantial evidence." Timmons v. General Motors Corp., 469 F.3d 1122, 1126-27 (7th Cir. 2006). Accordingly, for the reasons discussed above, Germano's evidence was also sufficient to move forward under the "direct" method.