Germano, Michael v. Int'l Profit Assoc ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3914
M ICHAEL G ERMANO,
Plaintiff-Appellant,
v.
INTERNATIONAL P ROFIT A SSOCIATION, INC.,
INTEGRATED B USINESS A NALYSIS, INC., and
INTERNATIONAL T AX A DVISORS, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 5638—George W. Lindberg, Judge.
A RGUED JUNE 4, 2008—D ECIDED S EPTEMBER 12, 2008
Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. Michael Germano is a man with
a severe hearing impairment who applied for a tax
advisor position with Defendant International Tax Advi-
sors, Inc. (“ITA”). Believing that ITA rejected him for
the position because of his disability, he filed suit against
ITA in district court under the Americans with Disabil-
ities Act (“ADA”), 42 U.S.C. §§ 12111-17 (2000). He also
2 No. 07-3914
named as defendants other corporate entities involved in
ITA’s recruiting and hiring process; we refer to them
collectively as ITA. The district court granted summary
judgment in favor of the defendants, relying exclusively
on its conclusion that the key evidence submitted by
Germano in opposition to summary judgment was inad-
missible hearsay. As we explain below, this was wrong.
Once we restore his evidence to the picture, Germano has
raised triable issues of fact with respect to each element
of his discrimination claim. We therefore reverse the
judgment of the district court and remand for further
proceedings.
I
As usual, in deciding whether summary judgment is
appropriate, we review the court’s conclusions of law
de novo and accept the facts in the light most favorable to
the nonmoving party, drawing all reasonable inferences in
his favor. Lapka v. Chertoff, 517 F.3d 974, 980-81 (7th Cir.
2008). The central question here is whether the district
court should have excluded on hearsay grounds the
evidence that Germano proffered; if so, the judgment for
ITA stands, but if not, then summary judgment was
inappropriate.
In opposing the defendants’ motion for summary
judgment, Germano relied in part on statements made
by Ron Sage, an agent of ITA, during a telephone call
between Sage and Germano. The wrinkle is this: Germano
is deaf, and he thus must use a telecommunications relay
service (“TRS”) to communicate to persons with unim-
No. 07-3914 3
paired hearing over the phone. To place a call, Germano
uses a text telephone to send to the TRS the phone num-
ber of the party he wishes to reach. The TRS connects
Germano to the first available operator, referred to in
the industry as a communications assistant (“CA”), who
dials the party’s number over an ordinary telephone
line. When Germano wants to say something to the person
he called, he sends the message in text to the CA, who
reads it verbatim to that person over the phone. (People
with severe hearing impairments often also have dif-
ficulty speaking aloud in a way that is fully understand-
able to others. See, e.g., “A First Language: Whose Choice
Is It?” Gallaudet Univ. Laurent Clerc National Deaf Educ.
Center, at http://clerccenter.gallaudet.edu/pRODUCTS/
Sharing-Ideas/afirst/emphasis.html (last visited Aug. 25,
2008). Especially given the distortions of telephone
lines, such a person might prefer to send his outgoing
messages in text, as well as to receive his incoming mes-
sages in text.) When the person responds, the CA types
the response verbatim in real time and sends that text to
Germano. Communication proceeds back and forth in
this way.
The district court held that Germano’s deposition
testimony about the content of the conversation that was
conducted using the TRS between Sage and himself was
inadmissible hearsay. If Sage and Germano had spoken
to each other over an ordinary phone line as two hearing
persons would have done, Germano could testify about
Sage’s remarks with no hearsay problems because
Sage’s statements would constitute admissions of a party-
opponent, which are nonhearsay under F ED. R. E VID.
4 No. 07-3914
801(d)(2)(D). The district court determined, however,
that the only statements Germano perceived were those
of the CA, and it found that the CA’s statements were
inadmissible hearsay. Whether this was correct is the
question of law that is at the center of this appeal.
II
A
ITA begins with a familiar procedural argument: it
asserts that Germano failed to raise this argument in the
district court, and thus he cannot assert it here. We con-
clude that Germano did not forfeit the point. F ED. R. E VID.
103 specifies how one should object to an erroneous
ruling either admitting or excluding evidence. If the
district court admits the contested evidence, the opponent
must make a timely objection or motion to strike, “stating
the specific ground of objection, if the specific ground was
not apparent from the context[.]” Rule 103(a)(1). If, on the
other hand, the district court excludes evidence that the
party believes should have come in, then the only re-
quirement is that “the substance of the evidence was
made known to the court by offer or was apparent from
the context within which questions were asked.” Rule
103(a)(2). In either event, the court’s evidentiary ruling
cannot be deemed erroneous unless it affected the sub-
stantial right of the objecting party—as it surely did for
Germano.
We are satisfied that Germano’s offer of proof, which
he included in his response to ITA’s motion for sum-
No. 07-3914 5
mary judgment, was enough to comply with Rule 103(a)(2).
ITA argued in reply to Germano’s brief that Germano’s
testimony about the TRS conversation was inadmissible
hearsay. Germano had no further opportunity to litigate
the evidentiary question at that point. He did, however,
attempt to present his arguments on admissibility in
his motion for reconsideration. In denying that motion,
the district court commented that, because Germano
made a motion to supplement the record with some
signature pages after ITA filed its reply, he could also
have petitioned the court for permission to brief the
hearsay issue that ITA had raised. Perhaps so, but there
is no provision giving a right to this kind of extra briefing
in the Federal Rules of Civil Procedure or the Northern
District of Illinois’s local rules. The court’s suggestion
was also inconsistent with the thrust of Rule 103(a), which
relieves a party from the need to reiterate its objection
or offer of proof repeatedly. Germano was entitled to,
and did, raise his argument in the motion for reconsid-
eration. In our view, that was enough.
In light of the fact that we apply de novo review to the
grant of summary judgment as well as to the resolution
of the legal issue whether a particular statement con-
stitutes hearsay, there is no institutional reason not to
reach the merits of Germano’s appeal. There is also no
fairness problem, because ITA had the opportunity to
address the issue before the district court—indeed, it was
ITA that was the first to raise it, in its reply brief on
summary judgment.
6 No. 07-3914
B
No court of appeals has yet addressed the admissibility
of a communications assistant’s transmitted statements in
a TRS conversation. We find, and the parties appear to
agree, that the best guidance comes from cases dealing
with foreign language interpreters.
Almost a century ago, in Lee v. United States, 198 F. 596,
601 (7th Cir. 1912), this court upheld the admission of Mr.
Poy’s statements, as reported by the immigration inspector
who interviewed him, despite the fact that Poy was
speaking through a Chinese interpreter and the interpreter
did not testify about the contents of the interview. We
noted that
the law is well settled in favor of admissibility without
the necessity of even calling the interpreter. When a
conversation taken 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 inter-communication in which
they necessarily assume that the interpreter is trust-
worthy, and which makes his language presumptively
their own.
Id. at 601. Although the interpreter, who did not testify
about the substance of the statements, did aver that he
translated correctly, this fact was not central to the rea-
soning in Lee. To the contrary, we explicitly noted that
there is no need for the interpreter to testify at all. To
reinforce the point, we excerpted the entire (admittedly
brief) opinion in Commonwealth v. Vose, 32 N.E. 355 (Mass.
No. 07-3914 7
1892), in which the translated statements were admitted
against the defendant in a criminal trial, where the French
translator did not testify at all and was not a professional
interpreter. The Supreme Judicial Court of Massachusetts
observed that, in a conversation where parties must
communicate through an interpreter,
[e]ach acts upon the theory that the interpretation is
correct. Each impliedly agrees that his language
may be received through the interpreter. If nothing
appears to show that their respective relations to the
interpreter differ, they may be said to constitute
him their joint agent to do for both that in which
they have a joint interest. They wish to communicate
with each other, they choose a mode of communica-
tion, they enter into conversation, and the words of
the interpreter, which are their necessary medium of
communication, are adopted by both, and made a
part of their conversation as much as those which fall
from their own lips. They cannot complain if the
language of the interpreter is taken as their own by
any one who is interested in the conversation. Inter-
pretation under such circumstances is prima facie to
be deemed correct. . . . The fact that a conversation
was had through an interpreter affects the weight, but
not the competency, of the evidence.
Id. at 355.
The only qualification that Vose suggested was that the
presumption of correctness of the translation may be
overcome by evidence that the interpreter had a special
relationship with one of the parties that would indicate
8 No. 07-3914
a motive to translate falsely. In that situation, the inter-
preter cannot fairly be assumed to be the “joint agent” of
the parties. See id.
This is consistent with the position taken by our sister
circuits. Some circuits presume the admissibility of trans-
lated statements that are otherwise admissible unless
there is a showing of unreliability or a motive to mislead.
See United States v. Da Silva, 725 F.2d 828, 832 (2d Cir.
1983); United States v. Beltran, 761 F.2d 1, 9 (1st Cir. 1985);
United States v. Alvarez, 755 F.2d 830, 859-60 (11th Cir.
1985). Other circuits employ a four-factor test to check for
likely bias or unreliability on a case-by-case basis. See
United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991);
United States v. Martinez-Gaytan, 213 F.3d 890, 892 (5th Cir.
2000). Such courts consider: “[1] which party supplied
the interpreter, [2] whether the interpreter had any
motive to mislead or distort, [3] the interpreter’s qualifica-
tions and language skill, and [4] whether actions taken
subsequent to the conversation were consistent with the
statements as translated.” Nazemian, 948 F.3d at 527
(enumeration added).
In Germano’s case, the CA served as “no more than a
language conduit” between Germano and Sage. See Da
Silva, 725 F.2d at 832 (internal quotation marks omitted).
Indeed, the term “language conduit” is an even better
description of a CA than of a foreign language interpreter.
Unlike an interpreter, a CA does not need to select the
best word to convey a particular meaning (for example,
should the English word “know” be translated in French
as “savoir” or “connaître”?). The CA simply reads out the
No. 07-3914 9
English words from the text she sees, and then types in
the English words from the voice she hears. Voice-recogni-
tion computers may some day replace the human CAs
altogether, at which point there will be no technological
difference between telephonic communications among
hearing persons and those involving persons with im-
paired hearing. Currently, however, we have the human
system. ITA has pointed to no evidence that would under-
mine the presumption of admissibility of the CA’s trans-
mitted statements, as a closer look at TRS communica-
tions shows.
First, Germano did not supply the CA. It was the inde-
pendent TRS service, which operates under detailed
federal regulations, that automatically connected Germano
to a randomly selected operator to facilitate the TRS
conversation. See 47 C.F.R. § 64.603; http://www.fcc.gov/
cgb/consumerfacts/711.html.
Second, the CA had no motive to mislead or distort. ITA
does not assert that the CA had any prior relationship
with either party (and the chances of this are vanishingly
low), nor that the CA had any motive to transmit state-
ments inaccurately. Federal regulations require the CA
to transmit statements verbatim and in real time, thus
greatly reducing the chance of even unintentional distor-
tion. See 47 C.F.R. § 64.604(a)(1)(vii), (a)(2)(ii). (We are
reminded of the advertisements that a large company
furnishing cellular telephone service has run from time
to time, in which a man says over and over again “can
you hear me now?” Far too many conventional tele-
phone calls are marred by static or broken signals that
10 No. 07-3914
distort the message that reaches the listener. Those flaws
go to the weight of the evidence, not to its admissibility.)
Third, the CA’s qualifications and language skills are
prescribed by federal regulations. CAs must “be suffi-
ciently trained to effectively meet the specialized commu-
nications needs of individuals with hearing and speech
disabilities.” 47 C.F.R. § 64.604(a)(1)(i). They “must have
competent skills in typing, grammar, [and] spelling” and
“must possess clear and articulate voice communications.”
47 C.F.R. § 64.604(a)(1)(ii). In addition, “CAs must provide
a typing speed of a minimum of 60 words per minute”
and the regulations require the TRS provider to admin-
ister “oral-to-type tests of CA speed.” 47 C.F.R.
§ 64.604(a)(1)(iii). These qualifications, mandated by law,
provide more assurance of reliable transmission than
is often the case with lay foreign language interpreters.
Thus, even if it may be harder for one to say of CAs that
the parties implicitly agreed to use them as an intermedi-
ary, the strong assurances of reliability that the regulations
provide for the CAs support our treating them as solely a
“language conduit.”
The Equal Employment Opportunity Commission, in
its amicus curiae brief supporting Germano, stresses the
fact that the governing regulations explicitly prohibit a
CA “from intentionally altering a relayed conversation,”
and the regulations require that operators “relay all
conversations verbatim unless the relay user specifically
requests summarization.” 47 C.F.R. § 64.604(a)(2)(ii).
The Commission also notes that it would have been
impossible for Germano to have acquired any record of
No. 07-3914 11
his conversation with Sage (even assuming he could
identify which of many CAs assisted him on that day),
because CAs 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). Regulations also forbid
CAs from “disclosing the content of any relayed con-
versation,” except as required by section 705 of the Com-
munications Act, which authorizes the divulging of
conversations only pursuant to subpoena or “on demand
of other lawful authority.” 47 U.S.C. § 605(a)(5)-(6); 47
C.F.R. § 64.604(a)(2)(i). It is not at all certain that the
statutory exception encompasses discovery in civil litiga-
tion, and even if it did, it would be close to impossible
for a CA to recall a single conversation from several
years ago purely from memory.
Finally, it is telling that the actions ITA took after the
conversation were consistent with the transmitted state-
ments. Six days after the TRS conversation, Sage emailed
Germano to notify him that ITA was not interested in pur-
suing employment for him. Germano inquired whether
the withdrawal of the invitation to interview was related
to his deafness. Sage did not respond with surprise at the
premise of the question (that an interview was in fact
offered), nor did he clarify any alleged misunderstanding.
Indeed, he never refuted in any way Germano’s asser-
tion that Sage offered Germano an interview during the
June 15 TRS conversation. The only action “inconsistent”
with the interview invitation was ITA’s failure eventually
to interview him, and that event can be explained plausibly
as the result of discrimination on the part of other
decisionmakers at ITA, who learned of Germano’s dis-
ability and only then withdrew the invitation.
12 No. 07-3914
Naturally, a finder of fact would not be compelled to
find discrimination once ITA submits its evidence of the
TRS conversation and the basis for its hiring decision. The
reliability analysis of the CA’s transmitted statements
is simply a threshold inquiry to establish its admissibility.
As we implied a moment ago, ITA will be free to argue
that the trier of fact should not attach great weight to
those transmitted statements. For now, we hold only that
a certified communications assistant, transmitting state-
ments through a telecommunications relay service, does
not add a layer of hearsay, unless the opponent of that
evidence can produce specific evidence of unreliability
or a motive to mislead.
There are strong policy reasons for admitting testimony
about the contents of TRS conversations. Congress man-
dated the creation of a telecommunications system for
persons with hearing and speech disabilities that is
“functionally equivalent” to those used by nondisabled
persons. 47 U.S.C. § 225. Denying the admissibility of
statements made during a TRS conversation would strip
those with hearing disabilities of a vital source of evidence
available to hearing persons. Deaf persons could not
conduct important day-to-day affairs over the phone,
such as calling the bank or the doctor, with the same
ability to rely on the statements made to them by the
other party that is enjoyed by hearing persons. Such a
result is at odds with Congress’s intent to make dis-
abled persons full and equal participants in society. See 42
U.S.C. § 12101(a)(8).
Thus, we find no sound basis in law, fact, or policy
on which to distinguish the role of communications
No. 07-3914 13
assistants from that of reliable, unbiased foreign
language interpreters. Sage’s statements, which were
conveyed to Germano not solely through the movement of
electrons but also through the CA’s intermediation, are
therefore not hearsay, and the district court erred in
excluding it on this basis.
III
With Germano’s evidence about his conversation with
Sage properly in the record, we must determine whether
he has submitted enough evidence to survive summary
judgment. Germano saw an online job advertisement,
announcing that ITA was seeking applicants for the
position of tax advisor. The posting noted that the mini-
mum education requirement was a master’s degree and
that two to five years of relevant work experience was
desired, listing examples of relevant areas, including tax,
corporate, finance, estate planning, and business advising.
On June 9, 2005, in response to the posting, Germano
emailed Ron Sage, one of two decisionmakers for ITA with
respect to hiring, his resume and cover letter, which
indicated that he had earned a J.D. from Quinnipiac
University School of Law and an L.L.M. from Georgetown
University Law Center, had participated in a tax clinic
for two semesters, and had worked as a claims processor
for two years. (Sage actually works for International
Profit Association, Inc. (“IPA”), but IPA is a management
consulting company to which ITA delegates some of its
administrative and recruiting tasks, and so IPA is an
agent of ITA.)
14 No. 07-3914
On June 10, Sage forwarded Germano’s resume to Tim
Foster (the other decisionmaker) to see if Foster had an
“interest in this individual.” About five days later, Sage
left a voicemail on Germano’s machine asking Germano
to call him so that they could discuss the position of tax
consultant. Germano returned Sage’s call on June 15;
this is the call we described earlier that was handled
through the TRS and the communications assistant. Given
the way the call was conducted, Sage inferred that
Germano had a hearing impairment.
During the June 15 TRS call, Sage invited Germano to
come to Illinois for an interview and told him that his
travel expenses would be covered by ITA. He also told
Germano that he would contact him again with the
time and place of the interview. Afterwards, Sage told
Foster that he had talked with Germano and that the use
of the TRS “would imply that [Germano is] hard of hear-
ing.” During that same conversation, the decision was
made not to hire Germano.
On June 21, Sage emailed Germano and said, “After
further consideration, ITA has elected to pursue other
candidates whose qualifications better fit the needs of the
client base.” The same day, Germano responded by email,
stating, “I would like to inquire why I was offered an
interview on Friday with your company and now it
is being withdrawn. It seemed to me during our con-
versation on Friday that my qualifications in fact met the
needs of your clients. Does the opportunity to interview
being revoked pertain to my deafness?” Germano went
on to explain what communications arrangements he
No. 07-3914 15
uses to perform daily work, informed Sage of his ability
to speak and read lips, and assured Sage that the “use of
an interpreter really is miniscule in comparison to my
work productivity.” He provided these details “to ensure
that misperceptions were not the source for the interview
opportunity being withdrawn.” Within thirty minutes,
Sage responded by email, as follows: “Honestly, the
decision makers did discuss the topic of your hearing,
but felt this was an obstacle that was not insurmount-
able. Simply stated, other candidates [sic] experience better
fit the needs of our clients.”
Germano pursued a complaint against ITA with the
Equal Employment Opportunity Commission (“EEOC”).
Larry Lang, Executive Director of Human Resources for
IPA, told the EEOC that Germano was not hired because
they decided to hire Rick Enriquez, who was more quali-
fied. This story had its holes, however. Enriquez was
offered a job with ITA on June 7 and accepted it on June 9,
almost a week before Germano’s June 15 conversation
with Sage, in which he was invited to interview. ITA hired
tax consultants on a rolling basis; it continued to inter-
view and hire others after withdrawing Germano’s inter-
view offer. The EEOC investigator thought that the evi-
dence presented “substantial credibility challenges to the
Respondent’s version of events and it’s [sic] explanations
for the failure to proceed with Charging Party’s candi-
dacy.” After receiving his right-to-sue letter, Germano
filed suit in district court against the defendants, alleging
discrimination in employment in violation of the ADA.
16 No. 07-3914
IV
To survive summary judgment on an ADA discrimina-
tion claim, Germano must raise a triable issue on each
element of the claim. Under the familiar McDonnell
Douglas paradigm, Germano must show (1) that he is
disabled; (2) that he is qualified by education and experi-
ence and could perform the essential job functions with
or without reasonable accommodation; (3) that he
suffered an adverse employment action; and (4) that the
circumstances surrounding the adverse action support
the inference that his disability was a determining factor
behind the adverse action. Lawson v. CSX Transp. Inc., 245
F.3d 916 (7th Cir. 2001); see Trujillo v. PacifiCorp, 524 F.3d
1149, 1154 (10th Cir. 2008). (Although this court has
sometimes described the last factor as requiring the
plaintiff to show that discrimination is “more likely
than not,” we have spoken only of an “indication” that
this is so, not a certainty. See Lawson, 245 F.3d at 922. That
is understandable, because if we required a certainty,
then the difference between direct and indirect proof
would be erased. We think it is less confusing to speak, as
the Tenth Circuit does, of evidence supporting an “infer-
ence” that discrimination was “a determining factor.” This
evidence might involve, for example, showing that simi-
larly situated people without the same disability were
treated better—a common strategy in indirect proof cases,
though not the only one.)
Defendants do not contest that Germano has satisfied
the first and third elements. Thus, we start by asking
whether Germano has raised a factual question with
No. 07-3914 17
respect to his qualifications and ability to perform the
job with or without reasonable accommodations.
It is beyond dispute that Germano satisfied at least
the education requirements for the job. By submitting
evidence that defendants offered him an interview, for
which they would pay his travel expenses, Germano raises
a triable issue whether he was qualified for the job. ITA
might have concluded that his tax clinic and claims
work were the equivalent of the experience it was
looking for; alternatively, it may have considered work
experience desirable, but not essential. Germano also
points to two Tax Advisors who did not have at least
two years of relevant work experience at the time they
were hired by ITA, and ITA’s admission that it considers
for employment applicants who do not have at least two
years of relevant work experience. A rational jury could
infer that the amount of relevant work experience was
simply a desirable criterion, but not a requirement for
the job, and thus that Germano was qualified for the job.
Germano himself was competent to testify about the
reasonable accommodations that would allow him to
perform the essential functions of the job. In this appeal,
the defendants dispute Germano’s lip reading skills,
the amount of time for which he would need an inter-
preter, and his estimates of the hourly rate charged by
an interpreter. These issues are material, but they are
contested, and they can be resolved only by the trier of fact.
The remaining element to be examined is the fourth one:
whether circumstances surrounding the adverse action
support the inference that Germano’s disability was a
18 No. 07-3914
determining factor for ITA’s decision abruptly to termi-
nate its interest in hiring him.
Germano raises a triable question by pointing to the
suspicious timing of the withdrawal of the interview
invitation (shortly after the defendants learned of his
disability, with no other new information about him)
together with the defendants’ shifting explanations of
why they did not hire or interview Germano. During the
EEOC investigation, IPA claimed that Germano was not
hired because it chose a superior candidate, Enriquez, for
the position. This explanation later proved to be false,
because Enriquez accepted his position before ITA
invited Germano to interview. Later on, the defendants
asserted that they did not hire Germano because he was
altogether unqualified for the position, as opposed to
merely being less qualified than another specific candi-
date. They take this position in the face of the contempora-
neous evidence that they deemed Germano qualified
enough to offer him an interview at their own expense.
Under the burden-shifting framework of McDonnell
Douglas, once the plaintiff makes out a prima facie case, the
defense may offer a legitimate, nondiscriminatory reason
for having taken the adverse employment action against
the plaintiff. The burden then falls on the plaintiff to
show that the proffered reason is merely a pretext, mean-
ing that the employer itself did not believe its own story.
ITA has offered a legitimate, nondiscriminatory reason
for not pursuing Germano further: it wanted better candi-
dates. Germano, however, has pointed to evidence that
would permit a trier of fact to find ITA’s reason pretextual.
No. 07-3914 19
For the most part, it is the same evidence we have just
reviewed in connection with the fourth element of the
prima facie case, including the circumstances of the inter-
view offer and ITA’s inconsistent explanations for its
actions.
* * *
The judgment of the district court is R EVERSED, and the
case is R EMANDED for further proceedings consistent
with this opinion. On remand, Circuit Rule 36 shall apply.
9-12-08