The Jury’s Out — Eleventh Circuit Affirms Florida Court’s Reversal of Jury Verdict

James Korte   

In D’Onofrio v. Costco Wholesale Corp., No. 19-10663 (11th Cir., July 6, 2020), the Eleventh Circuit Court of Appeals affirmed the reversal of a $775,000 verdict in favor of the plaintiff. The court ruled that the evidence presented at trial was not sufficient to support the employee’s claim that the employer failed to accommodate her disability.

A deaf employee complained to Costco’s executive management that her manager ignored and ridiculed her, mumbled so that she was unable to read his lips, and “smirked” when she attempted to communicate with him. In direct response to the employee’s complaint, Costco (1) installed video-conferencing equipment for live sign-language interpreters, (2) brought in an expert to assess the workplace and then to conduct deaf-culture training, (3) required the employee’s manager to attend additional one-on-one sessions with the expert, (4) implemented the expert’s suggestion that certain communications with the employee be limited to a specific three-manager team, and 4) provided in-person interpreters for some group meetings. According to the Court, the only action Costco did not take was removing the employee’s manager.  The employee was not satisfied with Costco’s changes. The employee often refused to use the video-conferencing technology, refused to communicate with the manager, and did not want to communicate with anyone outside of the three-manager team.

The Eleventh Circuit upheld the trial court’s decision because Costco’s numerous efforts constituted reasonable accommodations for the employee. The employee failed to point to “a specific instance in which she needed an accommodation and was denied one.”

The Eleventh Circuit’s decision and the underlying trial court decision bring several important considerations to the forefront. First, no matter how strong an employer’s case may be, there is still risk that the jury will find in favor of the employee.  Here, the jury verdict was for $775,000, but the court overturned the verdict as not consistent with the applicable law.  Second, when evaluating possible accommodations for an employee, the employer does not need to implement the employee’s preferred accommodation as long as its accommodations are reasonable. Indeed, an accommodation might be reasonable even if the employee chooses not to utilize it.