TABLE OF CONTENTS
TABLE
OF AUTHORITIES. ii
INTRODUCTION.. 1
ARGUMENT.. 3
I. A reasonable jury could find that West Meade believed Kean
had an impairment. 3
A. A
reasonable jury could conclude that decisionmaker Theresa Jarvis believed
Kean had an impairment—either anxiety disorder or an unspecified serious medical
condition that rendered her unable to work. 3
B. West
Meade fails to offer any persuasive arguments in support of a contrary
conclusion. 6
II. A jury could reasonably
conclude that West Meade terminated Kean because Jarvis believed Kean had
an impairment. 17
CONCLUSION.. 23
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Cases
Babb v. Maryville
Anesthesiologists, P.C.,
361 F. Supp. 3d 762 (E.D.
Tenn. 2019)......................................... 18
Babb v. Maryville
Anesthesiologists P.C.,
942 F.3d 308 (6th Cir.
2019)....................................................... passim
Bailey v. Real Time
Staffing Servs., Inc.,
543 F. App’x 520 (6th
Cir. 2013)..................................................... 12
Giesse v. Sec’y of Dep’t
of Health & Human Servs.,
522 F.3d 697 (6th Cir.
2008)............................................................. 10
Henricks v. Pickaway
Corr. Inst.,
782 F.3d 744 (6th Cir.
2015)............................................................. 10
Hostettler v. Coll. of
Wooster,
895 F.3d 844 (6th Cir.
2018)................................................ 15, 16, 18
Jacobs v. N.C. Admin.
Office of the Courts,
780 F.3d 562 (4th Cir.
2015)............................................................... 5
Morrissey v. Laurel
Health Care Co.,
946 F.3d 292 (6th Cir.
2019)............................................................. 16
Neely v. Benchmark Family
Servs.,
640 F. App’x 429 (6th
Cir. 2016)....................................................... 9
Nilles v. Givaudan
Flavors Corp.,
521 F. App’x 364 (6th
Cir. 2013)..................................................... 13
Nunies v. HIE Holdings,
Inc.,
908 F.3d 428 (9th Cir.
2018)............................................................. 18
Reeves v. Sanderson
Plumbing Prods., Inc.,
530 U.S. 133 (2000)............................................................................ 21
Ross v. Campbell Soup Co.,
237 F.3d 701 (6th Cir.
2001)........................................................ 7, 19
Silk v. Bd. of Trustees,
795 F.3d 698 (7th Cir.
2015)............................................................. 11
Taylor v. Pathmark
Stores, Inc.,
177 F.3d 180 (3d Cir.
1999).............................................................. 10
Tennial v. United Parcel
Serv., Inc.,
840 F.3d 292 (6th Cir.
2016)................................................ 12, 13, 14
Wolfe v. U.S. Steel Corp.,
567 F. App’x 367 (6th
Cir. 2014)..................................................... 18
Statutes
Americans with
Disabilities Act of 1990, as amended (ADA)
.....
..... 42 U.S.C. §
12102(1)....................................................................... 1
.....
..... 42 U.S.C. §
12102(1)(A)................................................................. 6
.....
..... 42 U.S.C. §
12102(1)(C)................................................................. 1
.....
..... 42 U.S.C.
§ 12102(2)(A)............................................................... 11
.....
..... 42 U.S.C. §
12102(3)(A)......................................................... passim
.....
..... 42 U.S.C. §
12102(3)(B)........................................................... 9, 10
ADA Amendments Act of
2008, Pub. L. No. 110-325, 122 Stat. 3553
.....
..... § 2(b)(1) (codified
at 42 U.S.C. § 12101 note)........................... 2
Family and Medical Leave
Act (FMLA)
.....
..... 29 U.S.C. §§ 2601 et
seq.................................................................. 4
Regulations
29 C.F.R. § 1630.2(g)(2)....................................................................... 1
29 C.F.R. § 1630.2(h).......................................................................... 10
29 C.F.R. § 1630.2(h)(2)....................................................................... 5
Administrative Materials
29 C.F.R. pt. 1630, app.
§ 1630.2(l)............................................. 7, 13
Other Authorities
Fed. R. Civ. P. 8(c).............................................................................. 10
INTRODUCTION
This
appeal raises the question whether a jury could reasonably conclude that West
Meade Place, LLP (West Meade), regarded its employee Carma Kean as having an
impairment under the third prong of the definition of “disability” in the Americans
with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12102(1)(C). “An
individual meets the requirement of ‘being regarded as having . . . an
impairment’”—and thus has a “disability” within the meaning of the ADA—if “she has been subjected to an action
prohibited” under the statute (such as termination) “because of an actual or
perceived physical or mental impairment.” Id.
§ 12102(3)(A).
The Equal Employment Opportunity Commission (EEOC
or Commission) argued in its opening brief that a reasonable jury could find
that West Meade terminated Kean because it perceived her to have an impairment.
In reaching this conclusion, a factfinder could rely on, inter alia,
evidence that, after Kean requested brief periods of intermittent leave to manage
her anxiety disorder, the decisionmaker, West Meade administrator Theresa
Jarvis—who acknowledged that Kean disclosed her anxiety—assumed Kean had a significant
“medical issue” that prevented her from working. The record shows that Jarvis sent
Kean home without finishing her shift, required Kean to obtain a work release
from her doctor, and, when Kean did not immediately obtain a release, fired her
the next day.
As explained in our opening brief, EEOC Br. 3, Congress significantly altered the
“regarded as” prong as part of the ADA
Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553,
“reinstating a broad scope of protection to be available under the ADA.” Id.
§ 2(b)(1) (codified at 42 U.S.C. §
12101 note). The amended ADA provides that
an employee may be covered under the regarded-as prong “whether or not the
[actual or perceived] impairment [in question] limits or is perceived to limit
a major life activity.” 42 U.S.C. §
12102(3)(A). Nevertheless, West Meade’s brief appears to suggest, erroneously, that
the Commission was required to show such a “limit[ation]” to establish
regarded-as coverage. West Meade also argues that the Commission cannot prevail
due to certain statements Kean made about her health condition in a deposition
and in a medical form. But West Meade misunderstands the inquiry under the
regarded-as prong, which turns on the employer’s perception of the
employee’s impairment, not the employee’s own perception.
Most fundamentally, like the district court, West
Meade fails to recognize that at summary judgment, this Court must construe all
facts in the Commission’s favor. Contrary to this bedrock principle, West Meade
repeatedly asks this Court to rule for it based only on evidence that it claims
supports its position. Indeed, West Meade even goes so far as to ignore
entirely two documents—an official termination document (the Supervisory Action
Notice) and a call log from the records of Kean’s doctor, Aisha Hashmat—on
which the Commission heavily relied, and which contradict West Meade’s version
of events. West Meade’s arguments concerning the reason for Kean’s termination illustrate
this flaw. Although West Meade asserts that it terminated Kean because she falsified
a work-release note from her doctor, other record evidence—including official
termination paperwork—contradicts West Meade’s version of events. Instead of
accepting West Meade’s proffered justification, a jury could deem the
falsification-of-documents rationale pretextual, and it could rely on pretext
evidence in determining that Kean met the “regarded as” definition of
disability under the amended ADA.
As the Commission explained, EEOC Br. 22-23, 25, contrary to West Meade’s
position (and the district court’s ruling), a jury could reasonably find that decisionmaker
Theresa Jarvis believed Kean had an impairment under two closely related
rationales.
First, the record supports the conclusion that
Jarvis believed that Kean had a significant “medical issue” that prevented her
from working and that rose to the level of an “impairment.” EEOC Br. 27-35. The evidence permits the inference that
Jarvis conceived this belief based on Kean’s November 18, 2015, request for
leave under the Family and Medical Leave
Act (FMLA), 29 U.S.C. §§ 2601 et seq., due to a “serious health
condition.” FMLA Certification, R. 50-4, Page ID
# 426. In particular, a jury could reasonably find that although Kean inquired
about occasional, intermittent FMLA leave
for her anxiety disorder, Jarvis assumed without foundation that Kean was
requesting twelve weeks of continuous leave. Kean
Dep., R. 42-1, Page ID ## 134, 152; Jarvis
Dep., R. 42-10, Page ID ## 243, 248, 261-262. Based on that
mistaken understanding, Jarvis decided that Kean’s “medical issue” rendered Kean
unable to “do her job” or “do anything.” Jarvis Dep., R. 42-10,
Page ID ## 243, 248.
Jarvis took several drastic steps demonstrating her
belief that Kean had a serious medical condition. She told Kean she “had to go [home]
now” and dismissed her from the workplace without allowing her to complete her
shift. Kean Dep., R. 42-1, Page ID # 135; Jarvis Dep., R. 42-10, Page ID # 243. She informed Kean that she could not
return to work without clearance from her doctor, although she also expressed
doubts that Kean could obtain such a release. Jarvis Dep., R. 42-10, Page ID ## 243, 248, 262. And she terminated Kean
the following day when Kean was unable to obtain such medical clearance, citing
Kean’s inability “to complete job duties.” Jarvis Dep., R. 42-10, Page ID ## 243-244; Change of Status and Separation
Form, R. 50-3, Page ID # 420; Supervisory Action Notice, R. 50-3, Page ID
# 422. As the Commission argued, EEOC Br.
31-35, regarded-as coverage under the ADA,
as amended, should apply on these facts even if Jarvis was unsure of the specific
nature of Kean’s medical condition.
Second, the record would allow a jury to find
that Jarvis believed Kean’s “medical issue” that precluded her from working was
an anxiety disorder. See EEOC Br.
39-41. West Meade does not question the conclusion that anxiety disorder is a “mental
impairment” under the regulatory definition: “[a]ny mental or psychological
disorder, such as . . . emotional or mental illness.” 29 C.F.R. § 1630.2(h)(2); cf. Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 574 (4th Cir. 2015). As West Meade also does not dispute, Jarvis
admitted that Kean told her about her anxiety when she (Kean) requested FMLA leave on November 18. Jarvis Dep., R. 42-10, Page ID ## 260, 262. Jarvis prepared an official
termination document acknowledging that Kean “reported . . . that
she had a medical condition of anxiety” and describing the actions Jarvis took
in response to Kean’s report, including demanding a doctor’s work-release note
and terminating Kean when she did not immediately obtain one. Supervisory
Action Notice, R. 50-3, Page ID ## 421-422. And the call log from Dr.
Hashmat’s practice reflected that Jarvis demanded that the medical release
stipulate that “no emotional distress can happen.” Hashmat Call Log, R. 50-4, Page ID
# 429.
1. West Meade—like the district court, see
EEOC Br. 42-43—seems to assume that
the Commission is required to make showings that the amended ADA does not contemplate. For example, West
Meade underscores Jarvis’s testimony that she was not aware that “Kean had a
disability” and that Kean “didn’t present as a person with a disability.” West Meade Br. 29-31 (quoting Jarvis Dep., R. 42-10, Page ID ## 244-245). But this testimony by Jarvis
is irrelevant because the pertinent question under the regarded-as prong of the
amended ADA is whether the employer took
prohibited action “because of an actual or perceived physical or mental impairment.”
42 U.S.C. § 12102(3)(A) (emphasis
added); see also EEOC Br. 42-43. Moreover,
it is unclear how Jarvis, who is not a lawyer, used the term “disability.” To
the extent she had the ADA’s definitions in mind, she may have been using that
term as defined under the first (and most well-known) prong of the statutory
definition of “disability”—“a physical or mental impairment that substantially
limits one or more major life activities,” 42
U.S.C. § 12102(1)(A). As explained, EEOC
Br. 42-43, the amended ADA explicitly
provides that a plaintiff may establish regarded-as coverage “whether or not [the
actual or perceived] impairment limits or is perceived to limit a major life
activity.” 42 U.S.C. § 12102(3)(A).
Along similar lines, West Meade appears to
suggest that, even though Jarvis admittedly knew of Kean’s anxiety, Jarvis
could not have perceived Kean as having an impairment because Kean did not say
her anxiety was “incapacitating.” West
Meade Br. 30 (citing Jarvis Dep., R. 42-10,
Page ID # 262). However, as the Commission
underscored, EEOC Br. 43, regarded-as
coverage under the amended ADA does not
demand an “incapacitating” impairment because the statute does not require a
showing of any “limitat[ion]” in a major life activity, 42 U.S.C. § 12102(3)(A), much less “incapacitation.”
West Meade repeats this error in
quoting a pre-amendments decision, Ross
v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001), for the proposition
that “[w]hether a plaintiff was regarded as disabled is ‘a question embedded
almost entirely in the employer’s subjective state of mind’ and as such is
‘extraordinarily difficult’ to prove.” West
Meade Br. 26 (quoting Ross, 237
F.3d at 709). But, as explained, EEOC Br. 33,
regarded-as coverage “should not be difficult to establish” under
the amended ADA. 29 C.F.R. pt. 1630, app. § 1630.2(l). The passage from Ross
pertained to a particular issue that arose in certain
pre-amendments cases: whether the employer “regarded [the]
employee as disabled in the major life
activity of working.” Ross, 237 F.3d at 709. To make this “difficult”
showing, a plaintiff was required to demonstrate “that the employer thought
that his disability would prevent him from performing a broad class of jobs.” Id. This standard has no relevance after
the ADA amendments, as an employee is no
longer required to show she is perceived to be substantially limited in working
or any other major life activity to demonstrate regarded-as coverage. 42 U.S.C. § 12102(3)(A).
2. West Meade argues that the Commission
cannot establish regarded-as coverage due to certain statements Kean made about
her health condition and her ability to work. In particular, West Meade relies
on Kean’s alleged “admission” at her deposition that her anxiety “did not affect
her ability to do her work.” West Meade
Br. 37 (citing Kean Dep., R. 42-1, Page ID # 132). West Meade also states that Kean,
in completing a West Meade health history form, “denied” a history of particular
health conditions and medical treatments. West
Meade Br. 36; Report of Medical History, R.
42-4, Page ID ## 200-201 (checking “no” in
response to certain questions regarding health history and past treatment, but also disclosing that Kean had “nervous,
mental[,] or psychological problems”—specifically, “anxiety”—and was currently
taking prescription medication used to treat panic disorder, see EEOC
Br. 6 (some capitalization omitted)).
Even if this evidence tends to show that Kean did
not actually have an impairment (which it does not, see infra p. 16),
West Meade ignores that it is the employer’s perception of whether the
employee has an impairment—not the employee’s perception—that is relevant to
the regarded-as inquiry. See, e.g., Babb v. Maryville Anesthesiologists P.C.,
942 F.3d 308, 321 (6th Cir. 2019) (discussing employee’s evidence that her
employer “perceived her as physically impaired”). Kean’s alleged “representations”
shed no light on whether Jarvis perceived Kean to have an impairment and
terminated Kean on that basis in November 2015. Kean’s March 2019 deposition
testimony could not have influenced Jarvis’s perception in November 2015. Kean
Dep., R. 42-1, Page ID # 105. And West Meade has not presented
evidence that Jarvis knew of, much less relied on, Kean’s “representations” on
her medical history form, which Kean completed nine months before her
termination. Report of Medical History, R.
42-4, Page ID # 200.
In arguing that “Kean’s own representations and
admissions” regarding her health condition and ability to work “hampered” the
Commission’s argument for regarded-as coverage, West Meade Br. 35-38, West Meade relies on this
Court’s unpublished decision in Neely
v. Benchmark Family Services, 640 F. App’x 429 (6th Cir. 2016). But the cited
part of Neely addressed an exception
to regarded-as coverage that encompasses “impairments that are transitory and
minor,” 42 U.S.C. § 12102(3)(B). In
applying that exception, Neely concluded
that an employee’s “claim that his employers regarded him as impaired is . . . hampered
by his own admission that his sleep issues did not affect his ability to work”
because the employee’s admission suggested that the alleged impairment was
“minor.” 640 F. App’x at 436 (emphasis
omitted). Although the cited discussion plainly pertains to the “transitory and
minor” exception, which is not at issue here, West Meade apparently attempts to
extend Neely beyond this limited
scope, for a general proposition that an employee’s statement that her health
condition does not affect her ability to work may undermine regarded-as
coverage.
But that application of Neely is inconsistent with the statute because,
again, it is the employer’s perception of whether an employee has an impairment—not
the employee’s—that matters. The record is clear that Jarvis believed Kean was
unable to “perform [her] job duties” due to a “medical issue,” Jarvis Dep., R. 42-10, Page ID ## 243, 247, and Jarvis’s assumption about
Kean’s ability to work is the type of “misinterpretation[]” the regarded-as
prong is meant to address, see Taylor
v. Pathmark Stores, Inc., 177 F.3d 180, 190 (3d Cir. 1999); see also EEOC Br. 33-34. Moreover, the regulatory
definition of “impairment” does not turn on ability to work. 29 C.F.R. § 1630.2(h) (defining
“impairment” to include “[a]ny physiological disorder or
condition . . . affecting one or more body systems” and
“[a]ny mental or psychological disorder, such
as . . . emotional or mental illness”). And West Meade’s
proposition—that an employee’s statement that she can work “hampers” her case
for regarded-as coverage—effectively demands that employees make a showing that
they have a “limit[ation]” in the major life activity of working, which is not
required under the amended ADA. 42 U.S.C. § 12102(3)(A); see also id. § 12102(2)(A); supra pp. 6-8.
3. West Meade suggests that the Commission
cannot establish regarded-as coverage because Kean did not “specify” the nature
of her health condition. See West
Meade Br. 34, 36-37 (noting that the FMLA
certification from Kean’s doctor “does not even specify what [Kean’s]
impairment was” and that a medical history form Kean completed did not
“provide[] . . . specifics about her alleged anxiety”). But West Meade does not
dispute that, if Jarvis believed Kean to have a serious but unspecified health
condition that rendered her unable to work, that would qualify as an “impairment”
under the regulatory definition. Nor does West Meade challenge the Commission’s
arguments that regarded-as coverage should extend to impairments that are not
specified in the mind of the relevant decisionmaker because (1) otherwise, an
employer could fire any employee who requests medical leave as long as the
employer avoids inquiring about the employee’s medical condition; (2) that
understanding of the regarded-as prong accords with the amended ADA’s mandate
for broad coverage; and (3) such coverage furthers the ADA’s purpose of combatting
discrimination stemming from stereotypes, myths,
mistaken assumptions, or other unwarranted views about an employee’s actual
or perceived impairment. See EEOC
Br. 32-34.
West Meade invokes Bailey v. Real Time Staffing Services, Inc.,
543 F. App’x 520 (6th Cir. 2013), and Tennial
v. United Parcel Service, Inc., 840 F.3d 292 (6th Cir. 2016), on the
subject of “specifics,” but neither decision undermines the proposition that
regarded-as coverage may be predicated on an employer’s perception of an
unspecified impairment. While this Court’s unpublished decision in Bailey expressed “some doubt” that “merely
inform[ing]” an employer of an unspecified medical condition is sufficient to
prove that the employee “has a perceived ‘impairment,’” Bailey was not decided on that ground. 543 F. App’x at 523. Moreover, the Commission’s
regarded-as argument here is based on substantial evidence beyond the fact that
Kean “informed” Jarvis of her medical condition when she requested FMLA leave, including Jarvis’s reaction to Kean’s
leave request (immediately sending Kean home, demanding a medical release, and
terminating her—citing inability “to complete job duties”—when she was unable
to obtain such a release) and Jarvis’s statements that Kean’s “medical issue”
meant she “couldn’t do her job” or “do anything.” Jarvis Dep., R. 42-10, Page ID ## 243, 248; Jarvis Letter, R. 42-11, Page ID # 294; Change of Status and Separation
Form, R. 50-3, Page ID # 420; Supervisory Action Notice, R. 50-3, Page ID
## 421-422.
West Meade cites Tennial for the proposition that a
plaintiff must provide evidence that the employer is aware of the “specifics of
[the] employee’s disabilities or restrictions” to establish a prima facie case
of disability discrimination. West Meade
Br. 27-28 (quoting Tennial, 840
F.3d at 306). But Tennial did
not make the quoted statement in the context of considering whether the
plaintiff had a “disability,” see 840
F.3d at 306 (assuming coverage); instead, it mentioned “specifics” only when
assessing whether the plaintiff demonstrated his employer’s actual or
constructive knowledge of his disability, id.,
a showing that goes to causation, see Nilles v. Givaudan Flavors Corp., 521 F.
App’x 364, 368 (6th Cir. 2013).
Even in the context of causation, Tennial narrowly applied its statement
about “specifics,” concluding that an employee did not establish employer
knowledge of his disability because he did not offer evidence “that his
supervisors knew that [the reason he took] leave was . . . work-related stress,”
the basis for his asserted disability.” Tennial,
840 F.3d at 306. Here, by contrast, Jarvis knew that Kean requested leave for a
“serious health condition,” assumed that Kean’s “medical issue” precluded her
from working, and took drastic actions based on that belief, culminating in
Kean’s termination.
In any event, in Jarvis’s mind, Kean’s condition was
specified. Although West Meade cites Jarvis’s testimony that Kean never
said her anxiety was the reason for her FMLA
request, West Meade Br. 30, there is copious
other evidence, none of which West Meade even acknowledges, permitting the
inference that the serious health condition Jarvis perceived Kean to have was
anxiety disorder. In particular, a jury could rely on Jarvis’s admission that
Kean told her she had anxiety when she requested FMLA leave; Jarvis’s mention of Kean’s
“report[] [of] . . . a medical condition of anxiety” in one of the official
termination documents; an account (in that same termination document) of the drastic
actions Jarvis took in response to Kean’s “report,” including sending Kean
home, demanding a medical release, and terminating her; and Jarvis’s statement
to Dr. Hashmat’s office that Kean’s medical release must specify that “no
emotional distress can happen.” Supra p.
5. A jury thus could reasonably conclude that Jarvis perceived Kean to have
anxiety disorder, which West Meade does not dispute is a mental impairment
under the regulatory definition. See supra p. 5.
4. Finally, although West Meade
acknowledges, as it must, that this Court, in reviewing the district court’s
order granting summary judgment, draws all reasonable inferences and views the
evidence in the light most favorable to the Commission, see West Meade Br. 22-23 (citing Hostettler v. Coll. of Wooster, 895 F.3d
844, 852 (6th Cir. 2018)), West Meade’s arguments nevertheless fail to reflect
the summary judgment standard. Rather than explaining why the evidence on which
the Commission relied could not lead a reasonable jury to determine that Jarvis
regarded Kean as having an impairment, West Meade asks this Court to “decide[]
between competing facts,” Hostettler,
895 F.3d at 857, by emphasizing other evidence that, it claims, could support a
contrary conclusion.
For example, West Meade leans
heavily on Jarvis’s testimony that she did not believe Kean had a
disability—testimony that is inapposite, as explained supra p. 6. But even
if were relevant, a jury need not credit Jarvis’s assertion that she did not
believe Kean had a “disability,” including Jarvis’s claim that she based that
assumption on Kean’s expressed desire to continue working. Instead, as explained,
a jury could conclude that Jarvis believed Kean had an impairment based on, inter
alia, (1) Jarvis’s admissions that she thought Kean’s medical
condition was so serious that she could not perform her job; and (2) the
drastic measures Jarvis took in response to Kean’s leave request, culminating
in Kean’s termination. See EEOC Br.
27-28; see also supra pp. 3-5.
Similarly, in highlighting Kean’s responses in a
medical history form—
which
are irrelevant in any event because they do not reflect Jarvis’s perspective, see
supra pp. 8-9—West Meade ignores or downplays “contradictory facts.” Hostettler, 895 F.3d at 859. In
particular, the same form disclosed that Kean had “nervous, mental[,] or
psychological problems”—specifically, “anxiety”—and listed her prescription for
anxiety medication. See Report of Medical History, R. 42-4, Page ID
# 200 (some capitalization omitted). And even assuming that Kean’s medical
history form, completed in February 2015, would permit someone familiar with its
contents to conclude Kean lacked an impairment, West Meade “ignore[s] pertinent
context,” Morrissey v. Laurel Health
Care Co., 946 F.3d 292, 301 (6th Cir. 2019), that would allow a factfinder
to conclude that, by November 2015, Jarvis had developed a belief that Kean had
an impairment.
In
summary, West Meade fails to recognize that a jury may question Jarvis’s
credibility and rely on the Commission’s characterization of the facts. West
Meade also disregards the principle that “summary judgment [is] improper” where
“there is competing record evidence.” Hostettler,
895 F.3d at 858. Although the Commission’s brief explained that the district
court similarly misapplied the summary judgment standard and weighed the
evidence, EEOC Br. 43-45, West Meade
offers no defense of that approach other than to repeat the court’s error.
II. A jury could reasonably conclude
that West Meade terminated Kean because Jarvis believed Kean had an impairment.
Having found, for the reasons outlined above,
that Jarvis believed Kean had an impairment, a reasonable jury could rely on the
official termination paperwork (including one document West Meade entirely
ignores) and bountiful other record evidence to determine that Jarvis’s
perception was the reason for Kean’s termination on November 19, 2015. That
same evidence would permit a jury to reject West Meade’s assertion that Jarvis
terminated Kean because she falsified a work-release note. Instead, a
factfinder could deem this falsification-of-documents rationale pretextual, and
it could rely on pretext evidence in determining that Kean met the third prong
of the statutory definition of “disability.” See EEOC Br. 45-50.
The record squarely supports an inference of
causation. A jury could reasonably conclude that Jarvis believed that Kean
could not fulfill her job duties due to the “medical issue” for which Kean requested
FMLA leave, and that Jarvis terminated
Kean for that perceived inability “to perform job duties,” as reflected in
official, contemporaneous termination paperwork. EEOC Br. 35-39. One of those official
termination documents—the Supervisory Action Notice, which West Meade’s brief
fails to address—outlined this chain of causation in clear terms, stating that,
after Kean’s “report[] . . . that she had a medical condition of anxiety,”
Jarvis required Kean to obtain a medical release and terminated her when she
did not immediately obtain such a release. Supervisory Action Notice, R. 50-3, Page ID
## 421-422. A jury could find further evidence of causation in the close
temporal proximity between when Jarvis conceived her belief that Kean had an
impairment (November 18, the day of Kean’s leave request) and Kean’s
termination (November 19). See Nunies
v. HIE Holdings, Inc., 908 F.3d 428, 434-35 (9th Cir. 2018).
Contrary to this analysis, West Meade asserts
that “the evidence shows” that Jarvis terminated Kean because she attempted to
provide a falsified work-release note from her doctor. West Meade Br. 39. However, in making this
argument, West Meade again ignores “contradictory facts,” Hostettler, 895 F.3d at 859, and it fails
to grapple with the principle that evidence must be construed in the
Commission’s favor at summary judgment. See Babb,
942 F.3d at 311. As the Commission argued, EEOC Br. 47-50, a reasonable jury could deem
Jarvis’s belated falsification-of-documents rationale pretextual. And, as West
Meade does not contest, the jury’s finding of pretext could provide additional
support for its conclusion that West Meade regarded Kean as having an
impairment. See, e.g., Ross,
237 F.3d at 708; EEOC Br. 45-46.
West Meade heavily relies on Jarvis’s deposition
testimony as evidence that the company terminated Kean for falsifying a
work-release note from her doctor. West
Meade Br. 39-41 (citing Jarvis Dep., R. 42-10, Page ID # 243). “[A]ccepting
that narrative would require [this Court] . . . to assume that [Jarvis] is a
credible witness,” Babb, 942 F.3d
at 323, even though a jury could disbelieve Jarvis’s testimony because it
conflicts with other record evidence—and because West Meade never produced the
allegedly falsified documents. As an illustration, in the deposition excerpt
West Meade cited, Jarvis testified that she spoke to Dr. Hashmat by telephone
after Kean “brought in a note from the doctor that she could come back to
work,” and that Dr. Hashmat told her she did not provide such a note. West Meade Br. 40-41 (quoting Jarvis Dep., R. 42-10, Page ID # 243). But Dr. Hashmat’s call log, which
West Meade’s brief fails to address, did not reflect any conversations
between Jarvis and Dr. Hashmat, nor did it record any conversations between
Jarvis and Dr. Hashmat’s staff about an allegedly falsified work release.
Hashmat Call Log, R. 50-4, Page ID ## 428-430; see also EEOC Br. 14-15. Other record evidence further
contradicts details of Jarvis’s account, calling her credibility into question.
For example, Jarvis testified that Dr. Hashmat told her that “she would not
release [Kean] to come back to work” and that “she was treating [Kean] for pain.”
West Meade Br. 41 (quoting Jarvis Dep., R. 42-10, Page ID # 243). Yet Dr. Hashmat’s call log showed
that a representative from the practice told Jarvis on November 20 that the
doctor would release Kean to return to work, and Dr. Hashmat is actually a family
physician who treated Kean for anxiety, not “pain.” Kean
Dep., R. 42-1, Page ID ## 119-120; Hashmat Dep., R. 50-4, Page ID
# 424; FMLA Certification, R. 50-4, Page ID
## 425, 427; Hashmat Call Log, R.
50-4, Page ID # 429; see also EEOC Br. 13, 15.
West Meade further claims, incorrectly, that
“Jarvis’s deposition testimony was consistent with the contemporaneous written
statements she prepared to document Kean’s termination,” citing one official
termination document—the Change of Status and Separation Form—and Jarvis’s
letter dated November 19. West Meade Br.
41-42. West Meade entirely ignores another official termination document
Jarvis created at the same time—the Supervisory Action Notice—even though the
district court considered that document and the Commission’s opening brief
discussed it extensively. See Opinion,
R. 73, Page ID # 559; see, e.g., EEOC Br. 12-14, 36-37, 39-40, 44-45, 49. And,
as the Commission explained, EEOC Br. 12-14,
official termination paperwork, including the Change of Status and Separation
Form on which West Meade relies, identified the reason for Kean’s termination
as Kean’s inability “to perform job duties,” not falsification of a medical
release. Separation Notice, R. 50-3, Page
ID # 419; Change of Status and Separation
Form, R. 50-3, Page ID # 420. In fact, none of the official termination
documents mentioned that West Meade received an allegedly falsified medical
release.
Nevertheless, West Meade asserts that a comment
on the Change of Status and Separation Form —“Employee attempted to use MD in
Anderson, Indiana where her sister worked”—“show[ed] that Kean was terminated
because she attempted to use a falsified statement from her doctor in Anderson,
Indiana.” West Meade Br. 42-43 (quoting
Change of Status & Separation Form, R.
50-3, Page ID # 420). Contrary to West
Meade’s claim that the Commission “ignores” this detail of the form, West Meade Br. 43, the Commission argued that
a jury could find Jarvis’s post-hoc explanation of the comment “unworthy of
credence.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147 (2000); see EEOC Br. 48. West Meade underscores Jarvis’s
testimony that she wrote “unable to perform [her job] duties” in the Change of
Status and Separation Form instead of “unable to perform duties due to [a] falsified
MD statement” “because she did not want to prevent Kean from obtaining
unemployment benefits.” West Meade Br.
42-43 (quoting Jarvis Dep., R. 42-10, Page
ID # 259). But a reasonable jury could (1)
question whether an employer would omit the real reason for termination—and
substitute a different reason—in official paperwork, including a document submitted
to a government agency; (2) doubt that an employer would describe an employee
discharged for submitting a falsified document as “unable to perform job duties”;
and (3) interpret the phrase “Employee attempted to use MD in Anderson
Indian[a]” to mean that Kean reached out to Dr. Hashmat—whose office is in
Anderson—in an effort to comply with Jarvis’s demand for a work-release note,
or that Kean sought to use Dr. Hashmat’s certification to support her request
for FMLA leave. EEOC Br. 48-50.
West Meade also asserts that Jarvis’s letter
corroborated its falsification-of-documents rationale, stating that the letter
“provided a detailed narrative of the circumstances leading to Kean’s
termination,” West Meade Br. 41, but West
Meade failed to quote that “detailed narrative” or explain what portion of the letter
supported its position. In fact, consistent with the “unable to perform job
duties” rationale in the official paperwork, Jarvis’s letter cited Kean’s
“fail[ure] to provide a release to work” from her doctor as the reason for her
termination. Jarvis Letter, R. 42-11, Page
ID # 294. Although Jarvis’s letter noted
that Jarvis told Kean that providing a falsified release document was “grounds
for termination,” it did not state that Jarvis actually received such a written
release from Kean, and the letter did not cite fraudulent documents as a
termination reason. Id.
In short, a jury could find that West Meade
terminated Kean because of Jarvis’s perception that Kean had an impairment, not
because Kean supposedly provided a false work-release note. In advancing its
falsification-of-documents rationale, West Meade again asks this Court to
ignore the summary judgment standard, as a jury could readily conclude that the
official paperwork accurately reflected the reason for Kean’s termination and
could doubt the credibility of Jarvis’s account.
For the foregoing reasons and the reasons
identified in our opening brief, the Commission urges this Court to reverse the
district court’s decision holding that no reasonable jury could conclude that
Kean met the regarded-as prong of the definition of disability under the
amended ADA. We ask this Court to remand
for further proceedings.
Respectfully
submitted,
SHARON
FAST GUSTAFSON
General
Counsel
JENNIFER
S. GOLDSTEIN
Associate
General Counsel
SYDNEY
A.R. FOSTER
Assistant
General Counsel
s/
Anne W. King_______________
ANNE
W. KING
Attorney
EQUAL
EMPLOYMENT
OPPORTUNITY
COMMISSION
Office
of General Counsel
131
M St. NE, Fifth Floor
Washington,
D.C. 20507
(202)
663-4699
anne.king@eeoc.gov Dated:
June 19, 2020
