Feds drop high-profile discrimination complaint over Vegas airline employee

David Strow

Monday, May 8, 2000 | 11:07 a.m.

WASHINGTON APPLICATION

America West Airlines, the second-largest passenger carrier serving McCarran International Airport, has applied for authority to operate nonstop flights between Las Vegas and Ronald Reagan National Airport in Washington D.C.

The Department of Transportation earlier this year authorized 12 slots -- six round-trip flights -- to cities that are more than 1,250 miles from the Washington airport.

America West, which operates a Las Vegas hub, joins National Airlines in expressing interest in a Washington-Las Vegas flight. Those two carriers will compete with United, American, Frontier and Delta, which are expected to apply for flights from Washington to other destinations that fit the 1,250-mile slot criteria.

Nearly a year after filing a high-profile discrimination lawsuit against United Airlines' operations at McCarran International Airport in Las Vegas, the U.S. Equal Employment Opportunity Commission is withdrawing its case.

But an indignant United Airlines doesn't plan to let the EEOC go quietly and is demanding nearly $35,000 in legal fees it incurred defending itself.

The case arose last June, when the EEOC filed suit against United in Las Vegas federal court on behalf of local resident Jose Penuelas, a former customer service representative with United at McCarran.

Shortly after joining United in March 1997, Penuelas said he informed United of his epilepsy and asked not to be assigned to any driving assignments. The EEOC claimed that United denied this request and ended his conditional employment in April.

These actions violated the Civil Rights Act and the Americans with Disabilities Act, the EEOC claimed at the time, and the agency issued press releases to announce its action. It was the first EEOC case brought against a Las Vegas employer in more than a year.

The EEOC had sought two years' wages in compensation for Penuelas, plus unspecified punitive damages for ADA violations.

But in March, the EEOC filed a motion to dismiss the case, saying it would be too difficult to prove Penuelas qualified as disabled under new ADA guidelines.

United responded by asking for reimbursement of $34,903 in attorney's fees, saying the commission's actions went against federal guidelines for prosecution of such cases.

In depositions, United attorneys claim they were told by EEOC attorney Peter Laura in February that Penuelas "did not have a disability under ADA as revealed by medical records."

"At the time the EEOC filed this action, the EEOC was in possession of the medical records upon which it later based its decision to seek dismissal," United attorneys wrote.

In his response, Laura disputes this claim, saying that the EEOC "conducted an extensive investigation prior to filing suit." The commission sought out advice from several medical experts, including a professor at UCLA's medical school. These experts confirmed that Penuelas' epilepsy constituted a disability, Laura said.

However, a Supreme Court ruling two days before the EEOC lawsuit was filed changed the legal landscape for the commission, Laura said.

Prior to the Supreme Court decision, the definition of disability under ADA was not guided by whether the condition could be controlled by treatments such as medications, Laura said. The decision changed that, requiring judges to look at how treatment controlled the disabling condition in making a ruling on disability.

Penuelas does take medication for his condition, the EEOC said, and would suffer "frequent severe seizures" without it. He still suffers some seizures with the medication, the commission said, though these seizures aren't as frequent or severe.

"Given the difficulty of establishing that Penuelas was disabled the commission has determined not to proceed with this case, although it has not determined that Penuelas does not have a disability," Laura wrote.