Instructions
This final exam is worth a total of 100 points. It consists of two parts.
• Part I is worth 70 points. It includes two essay questions, each worth 35 points.
• Part II is worth 30 points. It includes two short-answer questions, each worth 15 points.
• The exam is open-book and open notes: everything you need to respond thoroughly may
be found in your textbook, course materials, and your notes.
Part I: Essay Questions
Question 1: 35 points
1. In reviewing the facts provided below, what potential claims might Viejo bring against
WCE?
2. What additional areas of liability might WCE face from other potential litigants?
FACTS:
• Maria Viejo was the Executive Vice President of Human Resources for Wiley Coyote
Enterprises (WCE) from December 2016 – June 2019. Viejo’s employment was
terminated by WCE with no notice. The company cited a desire “to go in a different
direction.”
• WCE is headquartered in Miami and has 600 employees in 24 states and Canada. They
design and develop products under the Acme brand name.
• Viejo reported to the CEO and served as a member of the executive team. She is 48 years
old and was born and raised in Puerto Rico. She moved to the Miami to take the job with
WCE.
• Viejo’s annual compensation in 2017 was 162k and in 2018 was 175k. She was on target
to make 185k in 2019.
• In addition to Viejo, other executive team members include:
Mike Thomas Brad Cronshaw David Greene Jeff Goldberg
Job Title Chief Operating
Office
Director of
Marketing
Vice President
of Product
Development
Executive Vice
President,
Finance &
Accounting
Age 47 34 53 60
Annual
compensation
382k 245k 290k 310k
Race white white black white
Gender male male male male
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• Two weeks ago, Viejo returned from four weeks of leave under the Family and Medical
Leave Act. During the leave time, she cared for her disabled child who underwent
surgery.
• Three months ago, two employees complained to Viejo that Mike Thomas (COO) told
them that if they didn’t like how he managed things that they could, “Go back to where
they came from.” Both employees are originally from Somalia. Viejo spoke with
Thomas about the incident and he admitted that he made the statement and told Viejo that
it was his right to get rid of employees who were not doing their jobs. Viejo reported the
incident to the CEO. The CEO told Viejo not to make a big deal about it and “Thomas is
a good guy and he’s not a racist.”
• Six months ago, Viejo learned that David Greene (VP of Product Development) was
exclusively hiring engineers from his alma mater, Observant University, and that Greene
refused to look at candidates who did not attend Observant. Observant is a historically
black college and 92% of all graduates identify as black. Viejo spoke with Greene about
this practice expressing her concern. Greene told Viejo that Observant’s product design
major is one of the best in the country and he was bringing on well-educated and highly
skilled designers. He further told Viejo that she should thank him for bringing minority
employees to the company since the company was otherwise “a bunch of old white
guys.” Viejo shared her concerns with the CEO who told her that Greene developed the
product that put the company on the map and as far as he was concerned, Greene can do
no wrong and that Greene is right, “We are a bunch of old white guys.”
Question 2: 35 points
Cool Company, Inc. (CCI), a start-up company, recently moved from Denmark to Atlanta. CCI
specializes in automating meal preparation resulting in optimal health. Instead of planning
dinner, buying food, prepping food and cooking food – with CCI all you have to do is eat food –
in the form of a capsule. Sales have been sluggish so far but CCI recently received a large round
of funding and, as a result, has opened a new office in a former elementary school. Prior to
opening the new office, employees worked from their individual homes. However, the company
invested a significant amount of money in office space because the Danish CEO, Niles (no last
name needed), believes there is tremendous synergy to be gained in having all 35 employees
working together. Additionally, Niles went to great lengths to personally design the office space.
He created a space that is modern, sleek, and provokes an image of “vitality, health and
youthfulness”. According to Niles, “The outstanding design reflects a future where there will be
no ill health because all nourishment will be ingested through a simple capsule and a glass of
Merlot.” Niles believes that the office space aesthetics are key to promoting CCI’s product and
will contribute significantly to the company’s success.
Paul, a software engineer assigned to the very high-profile capsule redesign team, has been with
CCI for a year and has repeatedly received positive feedback about his work from his manager,
Olivia. Paul has never met Olivia face-to-face; in fact, he has never met anyone at CCI as his
work can be done from anywhere and CCI has provided him (as it has with all employees) with
the tools and equipment to do his job remotely. However, Paul is looking forward to the
comradery of working in an office with other like-minded engineers. Paul is 37 years old, and
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has muscular dystrophy which has kept him wheelchair bound for the past two years;
additionally, Paul’s hands do not function normally and he is unable to use a typical computer
keyboard. Therefore, Paul uses an adaptive keyboard to enter information into the computer.
Paul paid for the keyboard himself because he uses it both personally and professionally.
CCI’s new office space is “open style with team pods,” There are no offices or cubes and project
team members are grouped together to encourage communication and brainstorming. Paul and
his team members are assigned workspaces near the front entrance which is clearly in view by
everyone who visits the office. The entire office is equipped with stand-up desks. Nowhere is
there a working surface at chair height. Even the conference rooms are equipped with treadmills
with laptop shelves. On the first day in the new office, Paul was issued a new laptop (as were all
employees) and when he tried to Bluetooth his adaptive keyboard, he realized that the keyboard
will not work with the new laptop. The company is requiring employees use the new laptops
because they provide ultra-high security that older laptops do not.
Paul tries to immediately schedule a meeting with Olivia to discuss his needs for a wheelchair
height work surface and an updated adaptive keyboard. However, Olivia was unable to meet so
Paul voice texted her instead. Paul was concerned because he spent his entire first workday
unable to complete any work and he is approaching quite a few tight deadlines. Paul then spends
the next three work days in the office essentially doing nothing. He approaches Olivia
repeatedly but she indicates that she is too busy to meet right now. In an effort to get some work
done and meet the pressing deadlines, Paul goes back to working from home and on his old
laptop. Paul emails Olivia to let her know that he is working at home but he desperately needs to
meet with her to discuss the work surface and adaptive keyboard. In fact, Paul sends Olivia a
link to a specialized wheelchair desk and the keyboard. The cost for both items is $18,212.
Olivia responds to Paul’s email warning him that working from home is now against company
policy and that Niles wants everyone in the office at all times. She then schedules a meeting
with Paul for the next business day.
The meeting is attended by Paul, Olivia, and Niles. Niles seems very concerned about Paul’s
health asking him repeatedly how he is feeling and whether he should even be working “given
his condition.” Paul reminds Niles that he is fine and has successfully performed his duties for
the past year. Niles proudly tells Paul that he has solved Paul’s problem and created a win/win
for CCI and Paul. Niles escorts Paul to his new work space which is a cube in the back of the
office near the storage area. It is equipped with a standard desk which is too low for Paul’s
wheelchair to slide under. Paul expresses concern that he won’t be able to use an adaptive
keyboard unless he can easily reach it which he can’t do because the desk is too low. Paul also
asks about getting a new adaptive keyboard and Niles tells him that the cost was way too high
because CCI spent nearly all of its new funding on the office space. So, Niles has decided that
Paul will immediately be assigned to projects that don’t require ultra-high security meaning that
Paul can use his old laptop and adaptive keyboard. And because Paul won’t be on the capsule
redesign team, he won’t need to be located near his former team members in the front of the
office.
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Nile’s excitedly tells Paul that his first new project will be to design software to automate the
ordering of coffee and snacks for the employee breakroom. Niles states this is important work
because happy employees make for a successful company. Paul is so upset that he immediately
tells Niles that he will split the cost of the desk and keyboard with the CCI so that he can
continue his previous work and be with his teammates. Niles tells Paul that unfortunately, the
decision has been made and he has already hired a new software engineer to take Paul’s place on
the capsule redesign team. Plus, Niles tells Paul that he isn’t really qualified to work on the
Capsule Redesign Project because this project now requires using a standing work station. Paul
also commits that, in a few weeks, he will have cinder blocks placed under the legs of the desk
so that Paul can get his wheelchair under it.
Despite his dissatisfaction, Paul shows up for work the next day and starts work on the Snack
Project. Within a few hours Paul suffers severe neck and back pain from working with his
keyboard in his lap since he couldn’t get his wheelchair under the desk. Paul leaves work and,
on his way home, stops by the office of the nationwide plaintiff’s firm, Slorgan and Porgan.
Slorgan and Porgan gladly agrees to represent Paul and sends CCI a letter demanding the
following:
• Paul be assigned back to the capsule redesign team picking up his previous work duties
• CCI provide, at no cost to Paul, a wheelchair workspace and an adaptive keyboard
• Paul be assigned a workspace in the capsule redesign team pod
• Paul be compensated $250,000 for the mental anguish and embarrassment that he
suffered in retaliation for exercising his rights under the ADA
Question A: Analyze Paul’s case against CCI including the prima facie elements and defenses
available to CCI. Be sure to include your conclusion as to the likelihood of CCI prevailing.
Question B: As the HR director for CCI, what actions do you recommend CCI take related to
this case? What actions do you recommend they take in the future when faced with requests for
accommodations?
Part II: Short Answer Questions
Question 3: 15 points
How does employer liability for harassment by a co-worker or third party compare or differ with
the employer’s liability for harassment by supervisors, managers, or other top officials?
Question 4: 15 points
Under Title VII retaliation is prohibited against an applicant or employee when the individual
has exhibited one of more of the following behaviors: (there are three)
