In this lawsuit, the Equal Employment Opportunity Commission (EEOC) alleges that Cash Depot, Ltd. (Cash Depot) violated the Americans with Disabilities Act (ADA) by (1) terminating Charging Party Barney Galloway because of his disability and (2) failing to provide Galloway reasonable accommodation. There was evidence that the only limitation Galloway’s doctor placed on his ability to work—a twenty-five-pound lifting, pushing, and pulling restriction—was compatible with Galloway’s job description and workplace experience. There was evidence Cash Depot never even considered at least three reasonable accommodations for Galloway’s restriction. And there was evidence Cash Depot hired Galloway’s replacement after hearing of Galloway’s disabling medical condition but before learning of the specific limitations that supposedly motivated his termination.

Cash Depot nevertheless maintains the district court correctly granted summary judgment in its favor. But it reaches this conclusion only by impermissibly neglecting to view the summary judgment record in the light most favorable to the EEOC. For example, Cash Depot insists that Galloway is not entitled to protection under the ADA because no reasonable jury could find him capable of performing his essential job functions, even with reasonable accommodation. But this argument ignores evidence that Galloway’s only relevant physical restriction was consistent with Cash Depot’s own written description of his essential job functions, as well as with Galloway’s personal experience on the job. It also relies selectively on testimony characterizing certain job tasks as essential despite evidence capable of supporting a contrary inference. Likewise, Cash Depot rejects all three of the EEOC’s proposed accommodations as indisputably unreasonable without even addressing most of the EEOC’s arguments to the contrary.

Cash Depot’s other summary judgment arguments fare no better. Cash Depot claims affirmance is warranted as to discriminatory termination because it supposedly had no discriminatory motive for firing Galloway. But even by Cash Depot’s own account, Galloway’s disability was a but-for cause of his termination, thus establishing the only “motive” the ADA requires. Meanwhile, Cash Depot’s contention that it cannot face liability for failing to engage in an interactive process aimed at exploring reasonable accommodations rests entirely on its erroneous view that no reasonable jury could find any accommodation was possible. And Cash Depot’s suggestion that Galloway never initiated the interactive process by seeking accommodation in the first place ignores evidence that Cash Depot itself acknowledged Galloway had done so.

But even if this Court finds that summary judgment was proper on the existing record, reversal is still warranted because the district court abused its discretion in denying critical discovery. Most notably, the court—without explanation—refused to let the EEOC depose either of the only two living individuals responsible for the termination decision at the heart of this case. Cash Depot barely attempts to defend this arbitrary refusal, focusing instead on what other discovery the district court reluctantly permitted. And when Cash Depot does address the specific discovery rulings at issue, its justifications disregard just how unusual it is to require parties to seek leave to conduct a deposition, ignore the advantages of oral over written testimony, and have no apparent basis in the district court’s own reasoning.

Finally, this Court should reassign this case to a different district judge on remand. In its opening brief, the EEOC cited ample evidence from the district-court proceedings that could lead an objective observer to doubt the judge’s impartiality. Cash Depot’s vague defense of the proceedings below grapples with virtually none of this evidence and fails to cast a reassuring light on a record that speaks for itself.

I. Cash Depot’s Summary Judgment Arguments Rely on an Impermissibly Movant-Friendly View of the Record.

As Cash Depot observes, the district court was required to “view[] all facts and evidence in the light most favorable” to the EEOC at the summary judgment stage. Cash Depot Br. 2 (quoting Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016)). But in defending the district court’s summary judgment ruling, Cash Depot—like the district court before it—repeatedly fails to apply this principle. Instead, Cash Depot takes an impermissibly selective view of the record and disregards genuine disputes of material fact that preclude summary judgment on either of the EEOC’s claims.

A. Cash Depot Disregards Material Fact Disputes that Preclude Summary Judgment on the EEOC’s Discriminatory Termination Claim.

Cash Depot does not appear to dispute the district court’s holding that a reasonable jury could find Galloway was disabled at the time Cash Depot terminated him.[1] See Cash Depot Br. 13; ROA.412 (RE.13). Instead, it argues that it is entitled to summary judgment on the EEOC’s discriminatory termination claim because no reasonable jury could find that (1) Galloway was qualified for his job, Cash Depot Br. 12-17, or (2) Cash Depot had a discriminatory motive in firing him, id. at 18-19. Neither argument has merit.

1. Cash Depot Disregards Ample Evidence that Galloway Was Qualified to Perform His Essential Job Functions, With or Without Reasonable Accommodation.

Cash Depot first argues that no reasonable jury could find Galloway capable of “perform[ing] the essential functions of [his] employment position,” either “with or without reasonable accommodation.” 42 U.S.C. § 12111(8); see Cash Depot Br. 13-17. This argument overlooks ample record evidence that Galloway could perform his essential job functions without accommodation or, at minimum, with any one of three proposed reasonable accommodations.

This Court should first reject Cash Depot’s invitation to speculate that aspects of Galloway’s disability beyond his twenty-five-pound lifting restriction “could affect [his] ability to perform the essential functions of the job.” Cash Depot Br. 7. To be sure, Galloway testified to other disabling “neurological, mental, and physical” effects of his medical conditions. Id. at 12; see ROA.225-26 (RE.22-23). But he also testified that none of them would have impeded his ability to work. See ROA.226 (RE.23). And Cash Depot, like the district court before it, identifies no contrary evidence—let alone evidence that would compel all reasonable juries to find Galloway’s additional symptoms disqualifying. Indeed, the only relevant medical evidence—a note from Galloway’s doctor—identifies a lifting, pushing, and pulling restriction as the only limitation Galloway’s disability placed on his ability to do his job.[2] ROA.236 (RE.29).

Turning to that restriction, Cash Depot cannot establish beyond reasonable dispute that it was incompatible with Galloway’s essential job functions. Most fundamentally, Cash Depot struggles to account for the fact that its own written description of the “physical demands” an employee must meet “to successfully perform the essential functions of [Galloway’s] job” lists a lifting requirement of “up to” twenty pounds, well within Galloway’s capabilities.[3] ROA.332 (RE.46) (emphasis added). While Cash Depot observes that the description also mentions “heavy lifting” and various job tasks, Cash Depot Br. 6 (quoting ROA.331 (RE.45)), a jury—not to mention a job applicant—could reasonably interpret these general references in light of the twenty-pound upper limit Cash Depot specified elsewhere in the same document. And while the job description “included language that the job duties may change,” id., Cash Depot identifies no evidence that Galloway’s duties did change between the time it published its description of those duties’ physical demands and the time it fired him.

Cash Depot’s argument that the job description “does not rise to the level of creating a fact issue” because it “is only one factor to consider when determining what job functions are essential,” id. at 13, is also unpersuasive. It is true that, “consistent with ordinary rules governing summary judgment, a written job description is not given dispositive weight in the face of contrary evidence.” EEOC v. Vicksburg Healthcare, L.L.C., 663 F. App’x 331, 335-36 (5th Cir. 2016) (per curiam) (emphasis added) (citing EEOC v. LHC Grp., Inc., 773 F.3d 688, 697-98 (5th Cir. 2014)). But nothing in that principle suggests a job description is insufficient to create, rather than foreclose, a fact dispute. See Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 682 (5th Cir. 1996) (explaining that written job descriptions receive “substantial deference” in the essential-function inquiry).

The one case Cash Depot cites to support its argument, Hall v. United States Postal Service, 857 F.2d 1073 (6th Cir. 1988), only reinforces the point. In Hall, the Sixth Circuit reversed a grant of summary judgment in the employer’s favor because the employee “raised a legitimate factual dispute” over whether a lifting requirement listed in her job description “was indeed essential.” Id. at 1079. Here, as in Hall, it is for the jury to consider the job description, along with other evidence of “the actual functioning and circumstances” of the job, and “engage in [the] highly fact-specific inquiry” of assessing what the essential job functions truly demanded. Id. (emphasis omitted).

What is more, Cash Depot fails to account for additional evidence beyond the job description. It never addresses testimony from its own witness, Regional Supervisor John Murphy, that few aspects of repairs and coin empties—which he described as “most of the work,” ROA.294—ever involved lifting more than twenty-five pounds. See EEOC Br. 5-6 (citing ROA.286-88 (RE.38-40)). And despite correctly listing “the work experience of employees who have done the job” as part of the essential-function inquiry, Cash Depot Br. 14 (citing 29 C.F.R. § 1630.2(n)(3)(vi)), Cash Depot then inexplicably argues that the district court “properly discounted” Galloway’s testimony on exactly that point. Id.; see EEOC Br. 4-6 (describing Galloway’s testimony about the infrequency with which he performed heavy lifting, pushing, or pulling tasks).

To be sure, a court need not “credit [an] employee’s opinion about what functions are essential.” EEOC v. Ford Motor Co., 782 F.3d 753, 764 (6th Cir. 2015) (en banc) (emphasis added). But this principle does not allow a court resolving a summary judgment motion to disregard an employee’s factual testimony about how he spent his workdays. See Credeur v. Louisiana ex rel. Off. of Att’y Gen., 860 F.3d 785, 793-94 (5th Cir. 2017) (describing such testimony’s important role in the essential-function inquiry). And while Cash Depot discounts Galloway’s factual, firsthand testimony as “self-serving,” Cash Depot Br. 14, “virtually any party’s testimony can be considered ‘self-serving,’ and self-serving testimony is competent to oppose summary judgment.” Greer v. City of Wichita, 943 F.3d 1320, 1325 (10th Cir. 2019); see Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016) (stating that rejecting an employee’s testimony as “self-serving” on summary judgment “would signal that [her] account could never prevail over an employer’s”).

The district court’s failure to properly address the foregoing evidence belies Cash Depot’s claim that the court “considered the full range of the facts” and appropriately weighed the factors relevant to assessing “which functions are essential.” Cash Depot Br. 13-14. Tellingly, Cash Depot points to no portion of the district court’s opinion that gives weight to any factor other than “[t]he employer’s judgment”—not to “[w]ritten job descriptions,” not to the “amount of time spent on the job” performing various functions, not to the “consequences” of exempting Galloway from performing those functions, and not to “work experience of past incumbents” in Galloway’s role or similar roles. 29 C.F.R. §§ 1630.2(n)(3)(i)-(iv), (vi)-(vii). While Cash Depot is correct that the employer’s judgment receives substantial weight, see Cash Depot Br. 14, the very case it cites for that proposition explains that “courts should not give blind deference to an employer’s judgment, but should instead evaluate the employer’s words alongside its policies and practices.” Credeur, 860 F.3d at 794. And even in addressing this single factor, Cash Depot, like the district court, never confronts the fact that the “judgment” it has expressed in litigation contradicts its own job description’s contrary judgment.

Having impermissibly sidestepped significant evidence that Galloway was qualified to perform his essential job functions without accommodation, Cash Depot relies on the declaration of Regional Supervisor Joshua Kolodziej to claim that “most” of Galloway’s essential job functions would exceed his restriction. See Cash Depot Br. 4-6. But Cash Depot never answers the EEOC’s arguments as to why the Kolodziej declaration does not put this claim beyond reasonable dispute.

For example, Cash Depot cites the declaration’s discussion of van inventories and repairs involving air machine compressors, Cash Depot Br. 5 & nn.3-4, without addressing the EEOC’s argument that a jury could reasonably find these tasks nonessential given their absence from the job description and the oral testimony of any deponent, including Kolodziej. See EEOC Br. 33. Cash Depot relies on the declaration’s reference to Automatic Teller Machine (ATM) repairs that involve a unit’s cash dispenser, Cash Depot Br. 5 & n.5, without addressing Galloway’s testimony that his ATM repair duties, which “did not entail any lifting function in excess of” twenty-five pounds, “entailed primarily eliminating bill jams, fixing malfunctioning keyboards, and providing computer updates,” ROA.220 (RE.17). And Cash Depot relies on the declaration’s reference to “ATM Unit Moves,” Cash Depot Br. 5, without addressing the EEOC’s argument that a reasonable jury could find either that Galloway could perform such tasks or that such tasks were nonessential. See EEOC Br. 32-33 (describing evidence that these prescheduled tasks were performed in teams with the aid of labor-saving devices and that people in Galloway’s role rarely performed them).

Nor is Cash Depot correct that the declaration indisputably shows that Galloway could not perform coin empties without accommodation.[4] See Cash Depot Br. 4. While Kolodziej testified that coin empties may involve pulling out a drawer weighing around sixty pounds, ROA.352, “slid[ing] out” a drawer far enough “to allow for removal of coins by scooping them by hand” does not necessarily require bearing the drawer’s full weight, ROA.220 (RE.17). And a reasonable jury could certainly find that coin empties accordingly would not have required Galloway to exceed his limitations.[5] See, e.g., ROA.220 (RE.17) (Galloway testifying that coin empties “did not require that a full coin drawer be removed and moved or carried”); ROA.235 (RE.28) (Galloway explaining his restriction to Cash Depot and stating that he could still “do coin empties”); ROA.286 (RE.38) (Murphy agreeing that coin empties did not require “actually taking the [coin] box completely out”).

Finally, Cash Depot emphasizes that Galloway “work[ed] independently,” Cash Depot Br. 3, and “could not anticipate what work he would be required to perform once he arrived at a service call,” id. at 6. But characterizing every speculative need that could possibly arise on a service call as essential erases the distinction between essential and marginal job functions. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1192 (10th Cir. 2018) (“[A]n employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.” (internal citation omitted)). And here again, the job description, together with Galloway and Murphy’s testimony about what the job actually involved, could support a reasonable finding that Galloway’s essential functions fell within his capabilities, even if one could imagine one-off scenarios in which lifting more than twenty-five pounds might occasionally be necessary.[6]

But even if Cash Depot were correct that no reasonable jury could find Galloway qualified to perform his essential job functions without accommodation, summary judgment would still be inappropriate as long as a reasonable jury could find that a reasonable accommodation would have enabled Galloway to perform those functions. The EEOC’s opening brief identifies three ways Cash Depot reasonably could have accommodated Galloway’s lifting restriction, see EEOC Br. 36-42, and Cash Depot has failed to demonstrate that any of these proposed accommodations—let alone all of them—are indisputably foreclosed.

First, Cash Depot offers no persuasive reason why it would be unreasonable to allow Galloway to split coin empties among multiple bags. Cash Depot first claims that retrieving the coins in the first place would require Galloway to exceed his pulling restriction. Cash Depot Br. 15. But as explained supra at 13-14, a reasonable jury could disagree. Cash Depot then treats Kolodziej’s statement that removed coins are “placed into serialized bags to track deposits” as foreclosing divided loads. Cash Depot Br. 15 (citing ROA.352). But it never addresses the evidence that Galloway had divided coin empties into multiple bags in the past, ROA.220, 225 (RE.17, 22), or explains why multiple bags would create any impediment to tracking, much less an insurmountable one. See EEOC Br. 37-38. And Cash Depot finally claims that splitting loads would require Galloway to leave bags unattended, “creating an unsafe environment.” Cash Depot Br. 15. It identifies no evidence, however, that supports—let alone compels—this movant-friendly speculation. See EEOC Br. 38 (explaining that this theft theory derives solely from counsel’s representations and enjoys no record support).

Second, Cash Depot vastly overstates the nature of the proposed accommodation of temporarily restructuring Galloway’s work to avoid installations and removals. Cash Depot claims the proposal would require “shifting an essential job function onto others” or “creating a position to accommodate a disabled employee.” Cash Depot Br. 16. But as the EEOC’s opening brief explains, the evidence shows that Field Service Technicians like Galloway rarely performed installations and removals, that Cash Depot already employed numerous “floats” and Project Technicians who routinely covered such tasks, and that Cash Depot had successfully restructured other Field Service Technicians’ work in the past to avoid these marginal, infrequent duties. See EEOC Br. 38-39. Cash Depot does not mention any of this evidence, let alone explain why it fails to create a fact dispute as to whether Cash Depot could reasonably have accommodated Galloway just as it had previously accommodated others. See id. at 39-40 (citing cases for the proposition that shifting marginal job duties onto existing employees who can easily perform them can be a reasonable accommodation).

Finally, the only reason Cash Depot offers as to why extending Galloway’s unpaid leave would have been unreasonable is that the extension supposedly would have been “indefinite.” Cash Depot Br. 16. Cash Depot, though, never disputes that a brief, time-limited extension would have sufficed—or, as a reasonable jury could find, that engaging in the ADA’s interactive process with Galloway would have revealed as much. See EEOC Br. 41-42. Nor does Cash Depot dispute that a time-limited extension can be a reasonable accommodation.

Instead, citing no authority, Cash Depot claims only that it had no duty to engage in an interactive process in the first place because it had already “made the decision that it could not accommodate Galloway’s limitation.” Cash Depot Br. 18. But that argument puts the cart before the horse. It cannot be that an employer’s preemptive, unilateral (and ultimately incorrect) decision that accommodation is impossible relieves it of liability for failing to offer an accommodation that an interactive process might have revealed. Otherwise, employers would have scant incentive to participate in the dialogue this Court has recognized as critical to safeguarding the rights of disabled employees.[7] See EEOC Br. 48-50 (citing cases).

2. Cash Depot Admits Galloway’s Disability Was a But-For Cause of His Termination, Which Suffices to Establish the Requisite “Motive.”

In the alternative, Cash Depot argues for affirmance on the discriminatory termination claim on the grounds that no reasonable jury could find it “had a discriminatory motive in firing Galloway.” Cash Depot Br. 19. This argument is both legally and factually flawed.

Most critically, insofar as Cash Depot argues that it cannot face liability because it held no malevolent motive in terminating Galloway, it fails to answer the EEOC’s argument that such a motive is not a required element of a discriminatory termination claim. See EEOC Br. 42-44. As the EEOC explained in its opening brief, it need only demonstrate that Galloway’s disability was a but-for cause of his termination. See id. at 42-43 (citing Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (per curiam)). Even by Cash Depot’s own account, it chose to terminate Galloway because “it would not be able to accommodate [the] restrictions” his disability placed on his ability to work. Cash Depot Br. 19. And Cash Depot never disputes that firing a qualified employee because his disability interferes with his ability to perform marginal job tasks constitutes unlawful discrimination under the ADA. See EEOC Br. 30-31 (explaining that the ADA prohibits a “100% healed” policy). Provided that Galloway was capable of performing his essential job functions with or without reasonable accommodation, then, Cash Depot violated the ADA when it admittedly fired him because of his disability, regardless of its underlying motivations for doing so.

In any event, Cash Depot again takes an impermissibly movant-friendly view of the facts in arguing that no reasonable jury could find discriminatory motive. While Cash Depot claims the record indisputably shows that it decided to terminate Galloway only upon “learning of his pushing, pulling, and lifting restriction, which it could not accommodate,” Cash Depot Br. 19, the timeline easily supports a contrary inference. Critically, Cash Depot hired Galloway’s replacement before learning of the restriction that supposedly motivated its termination decision. And upon learning of the restriction, Cash Depot fired Galloway less than twenty-four hours later, without first engaging in any follow-up dialogue to assess possible accommodations. As explained in the EEOC’s opening brief, a jury could reasonably infer from these facts that discriminatory assumptions about Galloway’s disability—rather than appraisal of his actual capabilities—drove Cash Depot to terminate him. See EEOC Br. 44-46.

Contrary to Cash Depot’s suggestion, the EEOC does not claim that “making alternate plans to fill a position is … discriminatory,” Cash Depot Br. 18, or that Cash Depot’s decision to post a job opening soon after Galloway’s stroke necessarily reflects “bad faith,” id. at 8. Rather, the EEOC argues only that the record raises a reasonable inference that the only explanation Cash Depot has offered for firing Galloway—his lifting restriction—is pretextual. And insofar as Cash Depot now suggests it would have been justified in firing Galloway immediately after learning of his stroke, without waiting to learn what his restrictions would be, because it “had customers to service and had no idea if or when Galloway would return to work,” id., it invites this Court to engage in hypothetical ADA analysis of a counterfactual scenario without an evidentiary record.

B. Cash Depot Disregards Material Fact Disputes that Preclude Summary Judgment on the EEOC’s Reasonable Accommodation Claim.

For largely the same reasons that Cash Depot cannot demonstrate its entitlement to summary judgment on the EEOC’s discriminatory termination claim, it also fails to show that it is entitled to summary judgment on the EEOC’s reasonable accommodation claim. Cash Depot’s arguments primarily center on its view that no reasonable jury could find that any reasonable accommodations were available. Cash Depot Br. 15-17. As explained supra at 15-18, this view is untenable.

This flawed view also infects Cash Depot’s argument that it cannot face liability for failing to engage in the ADA-mandated interactive process. Cash Depot Br. 17-18. Cash Depot emphasizes that such a failure is not independently actionable where it “did not prevent identification of an appropriate accommodation,” id. at 18—a point the EEOC itself made in its opening brief. See EEOC Br. 47 (citing Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999)). Here, however, a reasonable jury could find that Cash Depot’s failure to explore potential accommodations with Galloway did prevent identification of a suitable option. See supra at 15-18; EEOC Br. 49-50.

Finally, Cash Depot offers no evidentiary support for its inexplicable argument that it was “undisputed[ly],” Cash Depot Br. 8, Galloway who “failed to engage in the interactive process,” id. at 17. The EEOC specifically argued, with citation to authority, that a jury could reasonably find Galloway initiated the interactive process with an accommodation request when he “emailed Cash Depot about his lifting restriction, asked to return to work, and explained that he could perform 98-99% of his job duties.” EEOC Br. 48. And the brief further identified evidence that Cash Depot itself had apparently construed Galloway’s email as an accommodation request. Id. (citing ROA.237 (RE.30)). Cash Depot does not address these arguments at all, let alone offer any reason for rejecting them.

II. Cash Depot Offers No Justification for the District Court’s Arbitrary Refusal to Allow Deposition of Individuals with Unique Firsthand Insight into Galloway’s Termination.

As explained previously, even if this Court holds that summary judgment for Cash Depot was appropriate on the existing record, remand is nonetheless warranted for the EEOC to conduct additional discovery that the district court arbitrarily withheld. EEOC Br. 50-54. While Cash Depot accepts that it is an abuse of discretion to impose “arbitrary or clearly unreasonable” discovery limitations, Cash Depot Br. 3, it claims the district court did not act arbitrarily in curtailing discovery here, id. at 19-21. Conspicuously absent from Cash Depot’s brief, however, is any justification for the district court’s unexplained decision to forbid the EEOC from deposing the only two living individuals—Chief Executive Officer (CEO) and President Dave Charles, Sr., and former Human Resources Director Darlene Lassiter—known to have played a decision-making role in Galloway’s termination.

Rather than squarely defending the district court’s decision to deny the requested depositions, Cash Depot first tries to cast the court’s conduct of discovery as broadly reasonable. It emphasizes that the court periodically “requested [that] the attorneys identify what was needed to advance the litigation” and allowed the EEOC to take other depositions. Cash Depot Br. 9; see also id. at 19 (referencing the district court’s “lengthy discussions with the parties … to determine what was reasonable in moving the case through the litigation process”). But merely asking what discovery is needed serves little utility if the court then proceeds to withhold it. And Cash Depot glosses over the fact that the district court initially refused to let the EEOC conduct any depositions at all. See EEOC Br. 12-13 (explaining that the district court invited Cash Depot’s witnesses to submit written statements instead of sitting for deposition, while at the same time authorizing Cash Depot to depose Galloway). That the district court ultimately abandoned some of its arbitrary discovery restrictions does not render the remaining restrictions any less arbitrary. See Hawkins v. AT&T, 812 F. App’x 215, 217 (5th Cir. 2020) (per curiam) (reversing this district judge for improperly denying “some of” plaintiff’s discovery requests, including a request to depose a specific individual who held information that “could have established a genuine dispute of material fact” (emphasis added)).

Nor is Cash Depot correct that the EEOC’s reliance on this Court’s decision in Miller v. Sam Houston State University, 986 F.3d 880 (5th Cir. 2021), is “unreasonable … gamesmanship.” Cash Depot Br. 19. Cash Depot’s contention that the district court in Miller, unlike here, “prevented the plaintiff from taking any depositions,” id. at 20, is simply wrong. See Miller, 986 F.3d at 891-92 (acknowledging that the district court permitted plaintiff to depose a witness). And although Cash Depot is correct that, unlike in Miller, the district court here “did not sua sponte dismiss any of the EEOC’s claims” or require that “Galloway be deposed in the District Court’s courtroom,” Cash Depot Br. 20, Miller’s egregious facts do not set a floor for reversible error.

More broadly, Miller reflects an improperly illiberal discovery approach that permeated the proceedings here just as it did there. Compare Miller, 986 F.3d at 886 (noting that, “[f]rom the start,” this district judge “effectively stifled [plaintiff’s] attempts at discovery” by issuing an Order of Conference that “foreclosed the parties from propounding written discovery or noticing depositions ‘without court approval’”), with ROA.17 (same here); compare Miller, 986 F.3d at 886 (cataloguing district judge’s remarks that reflected “preconceived notions from previous cases” and “predisposition against [plaintiff’s] claims”), with EEOC Br. 57-59 (describing comparable remarks here); compare Miller, 986 F.3d at 887 (noting that district judge denied plaintiff’s discovery motions before hearing defendants’ response), with ROA.140 (RE.10) (same here); compare Miller, 986 F.3d at 888 (noting district judge’s order that deposition of defense witness should take “two hours, at most”), with ROA.492 (district judge cautioning that deposition of defense witnesses “shouldn’t take long”). Nor does Miller stand alone. See, e.g., Hawkins, 812 F. App’x at 217; McCoy v. Energy XXI GOM, L.L.C., 695 F. App’x 750, 758-59 (5th Cir. 2017) (per curiam).

Insofar as Cash Depot attempts to defend the district court’s discovery rulings on the merits, it relies on flawed rationales the district court never gave. As for Lassiter, Cash Depot never disputes that she had “unique knowledge necessary for the prosecution of the EEOC’s case,” but it argues that the EEOC was not entitled to depose her because the EEOC “could have made telephone contact with her, talked to her, or obtained a written affidavit from her” instead. Cash Depot Br. 20. By this logic, no witness need ever be deposed. But see Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) (noting that an order “prohibit[ing] the taking of a deposition altogether” would “likely be in error” absent “extraordinary circumstances”). Moreover, Cash Depot ignores that, when authorizing the EEOC to contact Lassiter, the district court cautioned that “[y]ou’ll have to depose her before it’s useable.” ROA.496. At the same time, the court had already entered an order requiring “court approval” of any proposed deposition. ROA.17. But see Fed. R. Civ. P. 30(a)(1) (providing that “[a] party may, by oral questions, depose any person, including a party, without leave of court,” subject to exceptions not relevant here). Given the district court’s idiosyncratic approach to discovery, the EEOC can hardly be faulted for seeking approval to take Lassiter’s deposition rather than devoting time and resources to conducting an informal interview incapable of being reduced to admissible summary judgment evidence.

Even if Lassiter’s potential availability for informal conversation did justify withholding permission to depose her, though, Cash Depot ignores the district court’s actual reasons for doing so. As explained previously, the district court’s refusal to allow Lassiter’s deposition apparently rested on its assumption that she played no role in the decision to fire Galloway. EEOC Br. 52 (citing ROA.528 (RE.52)). Not only does Cash Depot fail to answer EEOC’s argument that this assumption “stood at odds with the evidentiary record,” id., but it admits that Lassiter contributed to the discussions that led up to Galloway’s termination. Cash Depot Br. 11. Insofar as the district court “base[d] its” discovery ruling “on a clearly erroneous assessment of the evidence,” it abused its discretion even if a different rationale could have justified the end result. Lyles v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 315 (5th Cir. 2017) (quoting Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005)).

As for Charles, Cash Depot similarly suggests that deposition was unnecessary because the district court authorized the EEOC to serve ten interrogatories on him.[8] See Cash Depot Br. 10-11. But “[a]ttempts at evasion, which might be stymied by a persistent oral examination, cannot easily be countered by interrogatories,” and “depositions are preferable if a searching interrogation of the other party is desired.” Charles A. Wright & Arthur R. Miller, 8B Federal Practice & Procedure § 2163 (3d ed. 2021). Cash Depot admits the evidence shows that “the decision to terminate [Galloway] was made by Mr. Charles,” and it admits that, in his interrogatory responses, Charles claimed not to “recall anything specific about Galloway.” Cash Depot Br. 10-11. Under such circumstances, the need for a searching examination to probe the full extent of Charles’s recollection, and test his veracity, is self-evident.[9]

Here too, moreover, Cash Depot relies on reasoning the district court never gave. In the face of the EEOC’s detailed written motion for leave to depose Charles, see ROA.108-16, and the baseline authorization Federal Rule of Civil Procedure 30(a)(1) confers on parties to conduct depositions, the district court denied EEOC’s motion without explanation. ROA.140 (RE.10). Even if the court could have justified this ruling, it did not. See, e.g., Wiwa v. Royal Dutch Petrol. Co., 392 F.3d 812, 819 (5th Cir. 2004) (holding this district judge abused his discretion in quashing a subpoena and denying a motion to compel “without providing oral or written reasons for doing so”); Wilkinson v. Star Enters., No. 96‑20878, 1997 WL 73857, at *3 (5th Cir. Feb. 14, 1997) (per curiam) (holding this district judge abused his discretion when he “provide[d] absolutely no explanation for [his] purely implicit denial of what facially appears to be a reasonable request for additional discovery time”).

Nor, finally, is there any merit to Cash Depot’s underdeveloped argument that the EEOC waived its discovery arguments by failing to comply with Federal Rule of Civil Procedure 56(d). See Cash Depot Br. 21. As that Rule requires, the EEOC informed the district court that it required further discovery to properly oppose summary judgment, and it filed an affidavit with “specified reasons” why. Fed. R. Civ. P. 56(d); see ROA.212-13, 216-18. Cash Depot cites no authority holding that anything further was required to preserve the issue for appellate review. Compare Emrich v. JP Morgan Chase Bank, N.A., 575 F. App’x 502, 504 (5th Cir. 2014) (per curiam) (holding that appellant “waived the issue of inadequate discovery” where he “did not request a continuance under Rule 56(d) in the district court”). In any event, even if the EEOC somehow waived its Rule 56(d) argument that the district court should have reopened discovery prior to ruling on Cash Depot’s summary judgment motion, it does not follow that the EEOC also waived its right to appeal the underlying adverse discovery rulings themselves. See Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1196 (6th Cir. 1995) (distinguishing “a challenge to a particular adverse discovery ruling” from “a more general claim that the district court acted prematurely by granting summary judgment before discovery was complete” and explaining that only the latter requires compliance with what is now Rule 56(d)).

III. Cash Depot’s Arguments Against Reassignment Fail to Consider the Totality of the Proceedings Below.

In arguing for reassignment to a different district judge on remand, the EEOC’s opening brief identified numerous moments during the proceedings below in which the district court made factual assumptions in Cash Depot’s favor, expressed sympathy for Cash Depot’s position, mischaracterized the law in a manner adverse to the EEOC, voiced impatience with the EEOC’s efforts to conduct discovery, and engaged in extra-record speculation favorable to Cash Depot. EEOC Br. 54-60. Cash Depot addresses none of these points. Instead, it broadly denies that “[any] evidence in the record” would lead “an objective observer [to] begin to question the judge’s impartiality” or would “indicat[e] that the District Court judge was biased toward Cash Depot.”[10] Cash Depot Br. 21. Were Cash Depot correct on this point, one would expect it to counter the opening brief’s account by explaining the district court’s comments and rulings in a way that illustrates the judge’s evenhandedness. But it does not because it cannot.

Having ignored the bulk of the evidence supporting reassignment, Cash Depot contends that the mere “fact that the summary judgment opinion is not verbose” does not suggest “that the judge predetermined the outcome of the case.” Id. at 22. But the district court’s opinion must be viewed in the context of the proceedings as a whole. As the EEOC has explained, those proceedings began at the case’s initial conference with the district court’s unsubstantiated speculation that Galloway “c[ouldn’t] do” his job and that Cash Depot’s actions reflected “no malice.” EEOC Br. 57 (quoting ROA.437 (RE.50)). The result was a summary judgment ruling that discounted Galloway’s firsthand testimony about the content of his job duties as “speculation” and saw no grounds for inferring Cash Depot’s “bad faith” from the fact that it hired Galloway’s replacement before learning of the lifting restriction that supposedly motivated his termination. ROA.412-13 (RE.13-14).

As this Court’s review of the record in its totality will make clear, there is ample room for an objective observer to doubt Cash Depot’s view that the district court “properly relied on the pleadings and evidence filed by the parties to render its decision.” Cash Depot Br. 22. Reassignment to a different judge on remand is therefore warranted.

CONCLUSION

For the foregoing reasons and those in the EEOC’s opening brief, this Court should vacate the district court’s judgment, remand for further proceedings, and order that the case be reassigned to a different district judge on remand.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

CERTIFICATE OF SERVICE

I, Nicolas Sansone, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system on this 1st day of February, 2022, and I will submit hard copies of the brief upon the Court’s request. I also certify that all counsel of record have consented to electronic service by virtue of Fifth Circuit Rule 25.2.3 and will be served the foregoing brief via the Court’s appellate CM/ECF system.

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

[1] Cash Depot has also abandoned any argument that Galloway’s receipt of Department of Veterans Affairs benefits supports affirmance. Cash Depot Br. 10 n.8; see, e.g., Kuwait Pearls Catering Co. v. Kellogg Brown & Root Servs., Inc., 853 F.3d 173, 178 (5th Cir. 2017) (acknowledging appellee’s abandonment of an alternate basis for affirmance).

[2] Cash Depot wrongly suggests that the “only logical reason” Galloway would not have informed it of aspects of his disability beyond his lifting restriction during his employment was that other, undisclosed issues must have “affected his ability to perform the essential functions of his job.” Cash Depot Br. 7. It is equally logical—if not far more so—to infer that Galloway mentioned only the lifting restriction because that is the only limitation his doctor imposed on his ability to work.

[3] Cash Depot misrepresents the evidence when it describes a “lifting requirement of at least 20 pounds.” Cash Depot Br. 6 (emphasis added).

[4] Cash Depot mischaracterizes the EEOC’s opening brief—without citation—as asserting that “driving is Galloway’s main task.” Cash Depot Br. 16 n.9. Rather, the opening brief acknowledged that Galloway’s main duties were performing coin empties and repairing ATMs and air/vacuum machines. See EEOC Br. 3-4.

[5] Cash Depot accuses the EEOC of “ignoring [Galloway’s] pushing and pulling limits.” Cash Depot Br. 5. While the EEOC does make shorthand reference to Galloway’s “lifting” restriction, it has readily acknowledged that the restriction also applies to pushing and pulling. See, e.g., EEOC Br. 10, 27.

[6] Cash Depot’s claim that it would be infeasible and “financially burdensome[] to have another field technician on standby to help Galloway” during his service calls is a red herring. Cash Depot Br. 6. The EEOC has never proposed such an accommodation.

[7] Cash Depot also argues, again without supporting authority, that Galloway failed to properly initiate the interactive process because he did not mention that his lifting restriction was likely to be short-lived when he first emailed Cash Depot about his restriction. Cash Depot Br. 18. But, as the EEOC’s opening brief explains, a reasonable jury could find that Galloway’s email was an accommodation request sufficient to open a dialogue during which this information would have emerged—and that Cash Depot in fact did view it this way. EEOC Br. 47-48.

[8] While Cash Depot calls the interrogatories “detailed,” Cash Depot Br. 10, the district court actually required them to be “short,” ROA.106.

[9] In repeatedly alluding to the EEOC’s proposed “apex deposition,” see, e.g., Cash Depot Br. 1, Cash Depot appears to imply—without actually arguing—that Charles’s role as CEO and President somehow justified denying the deposition. But Cash Depot never disputes that it is appropriate to depose high-ranking officers where, as here, they possess unique firsthand knowledge relevant to the case. See EEOC Br. 51-52.

[10] Cash Depot offers no response to the EEOC’s argument that reassignment would cause little inefficiency. See EEOC Br. 59-60.