Nevadan's lawsuit might reach highest court

Saturday, January 12, 2013

A 47-year-old Nevada woman's class action lawsuit against eBay Inc. for allegedly failing to provide her a means, as a deaf person, to become an eBay seller is being appealed to the 9th U.S. Circuit Court of Appeals in San Francisco and might eventually end up being argued before the U.S. Supreme Court.

Native Nevadan Melissa J. "Missy" Earll said Friday that she and her attorneys, Bill Crowe, of Springfield, and Michael Aschenbrener, of Chicago, Ill., were disappointed when U.S. District Judge Edward J. Davila, of San Francisco, dismissed her petition on Dec. 20, but Aschenbrener and she said they will meet the Jan. 18 filing deadline to ask the California federal appellate court for a trial.

Having been thwarted in her thoroughgoing June and July 2008 efforts to become an eBay seller because she couldn't answer phone calls to verify her identity, Earll said, she is preparing to take the Internal Revenue Service exam to qualify for work as a tax preparer.

Referring to a series of eBay representatives that she was in contact with 4 1/2 years ago, Earll said, "I told them, 'I cannot hear and although I do have a cell phone in my name, I use it for data, e-mail, the Internet, text messaging and instant messaging, not talking.'

"They asked if my mom and dad would answer the phone for me and I said, 'No, I'm a grown, adult woman and I don't live at home.'

"They asked if I had a friend or neighbor who could answer the phone, and when I said I didn't make a habit of sharing my personal business with people, they said there was no other method in place. I'm a taxpaying participant in my community and in society as a whole and in order for me to function in the hearing world, it's incredibly important that my sense of self, my dignity and my independence are respected.

"The Internet is supposed to be the great equalizer for all people regardless of their economic status or background."

Aschenbrener said Earll is the only named plaintiff, but that the suit is a class action brought to court on behalf of all deaf people who stand to be discriminated against by eBay.

Earll is a 1983 graduate of Nevada High School who earned a bachelor's degree in business administration, minoring in economics and English, at Portland State University at Portland, Ore., in 2004. The daughter of Jim and Twila Earll, she is the second youngest in her large family and is the only one whose hearing is impaired, she said.

In December 2008, Earll said, she received a cochlear implant to enable her to hear some sounds, although not speech. She does not use sign language.

In an interview at the Daily Mail, she said Judge Davila ruled in part that the Americans with Disabilities Act of 1990 does not apply to eBay because the San Jose, Calif.-based corporation does not have a "brick and mortar" place of business.

Contending Friday that the appeal should persuade the appellate court to direct Davila to bring the case to trial, Aschenbrener said, "Missy has very strong arguments as to why she should not be discriminated against when using the Internet.

"The idea that the ADA and the Unruh Civil Rights Act of California don't protect the deaf user is ridiculous."

Aschenbrener said mediation sessions that were conducted among the parties and their lawyers in July 2010 in Palo Alto, Calif., were unsuccessful in their attempt to resolve the dispute. He added that eBay could be assessed damages of $2,000 to $4,000 for each one of the numerous communications that Earll had with the company during her two attempts to register.

"Each one of those times was a violation," he said.

According to CNN, which has done a story about the case along with Fox News Radio, eBay spokeswoman Kari Ramirez issued a statement after Davila's ruling, saying, "eBay is pleased with the court's decision to dismiss the case.

"eBay strives to provide all users with the best customer experiences possible, including those with special access needs," Ramirez said in a news release. "eBay will continue to stand ready to assist those who are deaf or hard of hearing become eBay sellers."

Originally filed on March 16, 2010, with the U.S. District Court in the Southwestern Division of the Western District of Missouri in Joplin, the suit says Earll "is profoundly deaf, the most severe categorization of deafness.

"eBay has taken affirmative steps to discriminate against deaf and hard of hearing persons by creating a system they cannot use," Aschenbrener and Crowe argued. "The basis of this suit is not that eBay has passively failed to accommodate deaf and hard of hearing persons. Rather, the basis is that eBay has gone out of its way to design a system that they cannot use by creating a seller registration system that solely utilizes sound and erecting a barrier to its Web site that screens out the deaf and hard of hearing persons."

Earll's lawyers contend that eBay deliberately neglected to employ readily available alternatives. "What makes eBay's discriminatory conduct all the more galling is that solutions to this problem are easy and inexpensive to implement, solutions that are being used by thousands of companies online," they wrote.

"eBay simply needs to implement a seller registration system that utilizes PINS presented visually and aurally. One example of visual verification is the CAPTCHA (Completely Automated Public Turing test to tell Computers and Humans Apart) method that is used by countless other Web sites. The purpose of CAPTCHA, which may also provide video options for blind persons, is to verify that a human is operating the Web site, not another computer."

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