By Ken Stone
A former Cathedral Catholic volleyball star with profound hearing loss could be close to settling her lawsuit against sportswear giant Nike, one of her attorneys said Friday.
One Sunday in July, Cali Bunn went to buy shoes at the Nike store in Fashion Valley Mall. But she wasn’t able to read the lips of the sales clerk because he was wearing a mask — which she called an “upsetting experience” that caused “anguish.”
But it also calls for damages allowed under state law — $4,000 per incident. And if the case became a class action, it could involve more than 1,000 Nike customers since the onset of the pandemic.
“Cali and I are very hopeful that the parties will be able to reach a settlement,” said James Clapp, her Carlsbad-based attorney and longtime family friend.
He said a possible settlement might involve Nike outfitting some of its sales employees with clear face masks.
“These masks, which are inexpensive and widely available, allow customers with hearing loss to see the wearer’s mouth and facial expressions, which is very important to understanding speech,” said Clapp, who also is deaf. “We believe Nike is a socially responsible company that wants to do the right thing for all of its customers, including those with disabling hearing loss.”A manager at the Fashion Valley Nike store Friday declined comment on whether clerks are now using clear masks, directing questions to the Oregon-based multinational. Nike didn’t respond to requests for comment.
But Nike’s legal response to the Bunn complaint offered 17 defenses, including that Nike acted in good faith in meeting mask requirements and Bunn’s request for injunctive relief is “barred because plaintiff has not suffered, and is not at risk of suffering, irreparable harm.”
Nike also says the requested accommodations, auxiliary aids or modifications are not readily “achievable, reasonable or feasible” and “would result in undue burden.”
That’s because Bunn’s lawyers want the case made a class action potentially involving 3 million Californians with hearing loss. A motion to certify such a class hasn’t been made, however, pending ongoing talks to resolve the case.
The harm allegedly done Bunn by Nike?
The suit says it’s the embarrassment of dealing with a clerk who talked past her.
Bunn visited the upper-level store at Fashion Valley on July 12, the suit says.
“When she arrived at the store, all of the Nike employees on the sales floor were wearing opaque face masks that obstructed view of their mouths and facial expressions,” the suit said. “[Bunn] asked a male salesperson for assistance in locating a pair of shoes. Because the salesperson was wearing a mask, [Bunn] could not hear or understand what the salesperson was saying in response to her questions.”
The Tulane University student indicated she was having difficulty understanding him because she was hard of hearing.
“Twice she asked the salesperson to repeat himself,” the suit says. “The salesperson responded by expressing frustration with [Bunn], which plaintiff found embarrassing and demeaning to her. The salesperson did not lower his mask, provide an auxiliary aid or make any other attempt to effectively communicate with plaintiff.”
The 6-foot Bunn then asked her mother, standing nearby, what the salesman had said.From then on, the salesman spoke with Bunn’s mother exclusively, the suit says, “causing further embarrassment to plaintiff and depriving plaintiff of the friendly and personalized customer service that Nike’s hearing customers enjoy, solely because plaintiff has a disability.”
Besides not providing staff clear masks, Nike hasn’t trained its salespeople on how to accommodate deaf customers and “who for that reason cannot effectively communicate with Nike employees wearing opaque fabric masks,” the suit says.
On Monday, U.S. District Judge Yvonne Gonzalez Rogers in Oakland gave both sides more time to reach a settlement — even though the current deadline for a joint site inspection is Nov. 23. (That’s where attorneys from both sides visit one or more Nike retail stores to see how hearing impaired customers are dealt with.)
If a settlement isn’t reached, Rogers’ order said, “the parties shall exchange initial disclosures on or before January 11, 2021 … and conduct a site visit at one or more mutually agreed-upon Nike retail stores on or before January 18, 2021.”
“Anyone who is hard of hearing or has a hard of hearing family member knows this is a serious issue,” Rubin said. “The goal is to get the word out to the retail community in general that, while they should be praised for requiring their workers and customers to wear masks, there are foreseeable consequences for hard of hearing customers and employees.”
In late 2015, a Fox5 San Diego profile of Bunn — then a senior at Cathedral Catholic High School in Carmel Valley — said Bunn was born with 90% hearing loss in her left ear and 50% loss in her right. She recalled being bullied in elementary school.
An only child, Bunn received High School All-America honors for her beach volleyball talents and lettered all four years at Cathedral Catholic. She also qualified for the AAU Junior Olympics and later won a beach volleyball gold medal in the 2016 World Deaf Volleyball Championships in Washington, DC.
Later, in indoor volleyball, she helped Team USA win bronze in the 2017 Deaflympics held in Samsun, Turkey.Bunn didn’t respond to a request for comment via Facebook, but she is expected to graduate soon from Tulane — a private research university in New Orleans. Her LinkedIn account says she studies communications.
She said sports gave her opportunities to “grow my skill set and broaden my horizons for future experiences. I am very fortunate to have grown up in a generation where I am proficient in the social media world.”
She added that she feels “strongly that I possess many valuable skills that will bring creativity to any environment.”
According to someone familiar with her case, California-born Bunn doesn’t hold a grudge against Nike. The suit says she would like to shop at Nike stores in the future.
That day in July, she ended up buying shoes from the Fashion Valley store.
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