Page

STATEMENT OF THE ISSUES. 2

STATEMENT OF THE CASE.. 3

A. Factual Background. 3

B. District Court Decision. 7

SUMMARY OF ARGUMENT. 9

ARGUMENT. 11

I. The district court erred by concluding that Porter could not satisfy the ADA’s definition of disability. 11

A. Porter need not show a permanent impairment or provide corroborating medical evidence to establish an actual disability. 12

B. Porter need only show that Merakey acted based on an actual or perceived impairment to establish a “regarded-as” claim. . 18

II. Merakey could have inferred the approximate age of the sixty-six-year-old Porter based on his appearance and resume. 22

III. Porter created a triable issue of fact as to pretext for his age and disability discrimination claims. 26

A. Porter’s superior qualifications are indicative of pretext. 26

B. Merakey’s inaccurate statement to EEOC is further evidence suggesting pretext. . 31

CONCLUSION.. 35

CERTIFICATE OF COMPLIANCE.. 37

CERTIFICATE OF SERVICE.. 39

TABLE OF AUTHORITIES

Page(s)

Cases

Aka v. Washington Hosp. Ctr.,
156 F.3d 1284 (D.C. Cir. 1998) (en banc)................................................. 29

Ash v. Tyson Foods, Inc.,
546 U.S. 454 (2006).......................... 26

Bolden v. Magee Women’s Hosp. of Univ. of Pittsburgh Med. Ctr., 281 F. App’x 88 (3d Cir. 2008).............................. 14

Bray v. Marriott Hotels,
110 F.3d 986 (3d Cir. 1997)............. 26

Brearey v. Brennan,
No. 17-cv-2108, 2019 WL 111037 (E.D. Pa. Jan. 4, 2019)..................... 14

Britting v. Sec’y, Dep’t of Veterans Affs.,
409 F. App’x 566 (3d Cir. 2011)....... 14

Burton v. Freescale Semiconductor, Inc.,
798 F.3d 222 (5th Cir. 2015)............ 31

Castro v. DeVry Univ., Inc.,
786 F.3d 559 (7th Cir. 2015)............ 31

Diaz v. Eagle Produce Ltd. P’ship,
521 F.3d 1201 (9th Cir. 2008).......... 24

EEOC v. AutoZone, Inc.,
630 F.3d 635 (7th Cir. 2010)............ 16

Eshleman v. Patrick Indus., Inc.,
961 F.3d 242 (3d Cir. 2020) 12, 19, 20, 22

Geraci v. Moody-Tottrup, Int’l, Inc.,
82 F.3d 578 (3d Cir. 1996)............... 23

Gibbs v. City of Pittsburgh,
989 F.3d 226 (3d Cir. 2021)............. 19

Gillaspy v. Dallas Indep. Sch. Dist.,
278 F. App’x 307 (5th Cir. 2008) (per curiam)....................................... 28, 29

Gogos v. AMS Mech. Sys., Inc.,
737 F.3d 1170 (7th Cir. 2013).......... 13

Ham v. Washington Suburban Sanitary Comm’n,
158 F. App’x 457 (4th Cir. 2005) 28, 29

Hamilton v. Westchester Cnty.,
3 F.4th 86 (2d Cir. 2021).................. 13

Harrison v. Soave Enters. L.L.C.,
826 F. App’x 517 (6th Cir. 2020)..... 17, 21, 22

Harvard v. Cesnalis,
973 F.3d 190 (3d Cir. 2020)............... 3

Head v. Glacier Nw., Inc.,
413 F.3d 1053 (9th Cir. 2005).......... 16

Hennessey v. Dollar Bank, FSB,
No. 18-977, 2019 WL 6790633 (W.D. Pa. Dec. 12, 2019)............................ 34

Hennessey v. Dollar Bank, FSB,
833 F. App’x 961 (3d Cir. 2020). 34, 35

Jakomas v. City of Pittsburgh,
342 F. Supp. 3d 632 (W.D. Pa. 2018)......................................................... 20

Katz v. City Metal Co.,
87 F.3d 26 (1st Cir. 1996)................ 16

Kelly v. Drexel Univ.,
94 F.3d 102 (3d Cir. 1996)......... 15, 19

Kurylo v. Parkhouse Nursing & Rehab. Ctr., LP,
No. 17-cv-00004, 2017 WL 1208065 (E.D. Pa. Apr. 3, 2017)..................... 14

Macfarlan v. Ivy Hill SNF, LLC,
675 F.3d 266 (3d Cir. 2012)............. 14

Mancini v. City of Providence,
909 F.3d 32 (1st Cir. 2018)........ 13, 16

Marinelli v. City of Erie,
216 F.3d 354 (3d Cir. 2000)....... 12, 16

Martinez v. UPMC Susquehanna,
986 F.3d 261 (3d Cir. 2021)....... 23, 24

Matthews v. Pa. Dep’t of Corr.,
613 F. App’x 163 (3d Cir. 2015) 12, 13, 17

Miller v. Raytheon Co.,
716 F.3d 138 (5th Cir. 2013)...... 31, 32

Mohammed v. Callaway,
698 F.2d 395 (10th Cir. 1983).......... 28

Morrissey v. Laurel Health Care Co.,
946 F.3d 292 (6th Cir. 2019)............ 14

Murray v. Mayo Clinic,
934 F.3d 1101 (9th Cir. 2019).... 16, 17

Ross v. Kraft Foods N. Am., Inc.,
347 F. Supp. 2d 200 (E.D. Pa. 2004) 20

Sarullo v. U.S. Postal Serv.,
352 F.3d 789 (3d Cir. 2003) (per curiam)............................................. 25

Shields v. Credit One Bank, N.A.,
32 F.4th 1218 (9th Cir. 2022).......... 13

Smith v. Borough of Wilkinsburg,
147 F.3d 272 (3d Cir. 1998)............. 31

Summers v. Altarum Inst., Corp.,
740 F.3d 325 (4th Cir. 2014)............ 13

Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999).................... 18, 19

Tesone v. Empire Mktg. Strategies,
942 F.3d 979 (10th Cir. 2019).......... 16

Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184 (2002).......................... 13

Waris v. HCR Manor Care,
No. 07-cv-3344, 2009 WL 330990 (E.D. Pa. Feb. 10, 2009)................... 25

Waris v. Heartland Home Healthcare Servs., Inc.,
365 F. App’x 402 (3d Cir. 2010) (per curiam)................................. 25, 28, 31

Watts v. Univ. of Del.,
622 F.2d 47 (3d Cir. 1980)............... 32

Williams v. Tarrant Cnty. Coll. Dist.,
717 F. App’x 440 (5th Cir. 2018) (per curiam)............................................. 16

Woodman v. WWOR-TV, Inc.,
411 F.3d 69 (2d Cir. 2005)......... 23, 24

Statutes

Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq......... 1

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq............... passim

42 U.S.C. § 12102(1)(A)............... 7, 11

42 U.S.C. § 12102(1)(C)............... 7, 11

42 U.S.C. § 12102(2)(A)................... 17

42 U.S.C. § 12102(3)(A)........ 11, 19, 21

42 U.S.C. § 12102(3)(B)................... 22

42 U.S.C. § 12102(4)(A)................... 12

42 U.S.C. § 12205a........................... 13

Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).. 1, 13, 15, 19

§ 2(a)(8)............................................ 15

§ 2(b)(3)............................................ 19

§ 2(b)(5)............................................ 13

Rules, Regulations, and Administrative Authority

29 C.F.R. § 1630.2(j)(1)(ii).............. 15, 17

29 C.F.R. § 1630.2(j)(1)(v).................... 16

29 C.F.R. § 1630.2(j)(1)(ix)................... 13

29 C.F.R. pt. 1630, app. 1630.2(j)(4).... 18

29 C.F.R. pt. 1630, app. 1630.2(l)... 19, 22

Fed. R. App. P. 29(a)(2).......................... 1

Other Authorities

H.R. Rep. No. 110-730, pt. 2 (2008)..... 19

Br. of Appellees, Sarullo v. U.S. Postal Serv., 352 F.3d 789 (3d Cir. 2003) (No. 01-4203), 2002 WL 32395344.......... 25

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with administering and enforcing federal laws prohibiting workplace discrimination, including Title I of the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 12101 et seq. (“ADA”), and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq.

The district court committed several legal errors with respect to Plaintiff’s ADA and ADEA claims, such as relying on standards abrogated by the ADA Amendments Act of 2008 (“ADAAA”), adopting an overly restrictive standard for establishing an employer’s knowledge of age for an ADEA claim, and misapplying the summary judgment standard by concluding that no reasonable jury could find the employer’s reasons for not hiring Plaintiff to be pretextual. Because EEOC has a strong interest in the proper application of the laws it enforces, EEOC offers its views. See Fed. R. App. P. 29(a)(2).

STATEMENT OF THE ISSUES[1]

1. Did the district court err by concluding that Plaintiff’s actual disability claim required a showing of a permanent impairment supported by corroborating medical evidence and that his “regarded-as” disability claim required a showing that the employer perceived him as disabled and incapable of performing the job’s requirements?

2. Did the district court err in holding that the sixty-six-year-old Plaintiff failed to establish the fourth prong of his prima facie case of age discrimination on the ground that the employer could not have known his age, despite his in-person interview and resume showing he graduated college in 1973?

3. Could a reasonable jury find that the employer’s reasons for not hiring Plaintiff were pretextual, given his superior qualifications and the employer’s inaccurate statement to EEOC about why it did not hire him?

STATEMENT OF THE CASE

A. Factual Background[2]

Stephen Porter fractured his right tibia during a hit-and-run incident in 2011, requiring surgery with placement of permanent pins and screws. III.App.396 (Porter deposition); IV.App.439, 582-83 (medical reports).[3] Porter reinjured his leg in 2013, causing a bony contusion of the tibia. IV.App.439, 443-44 (medical reports). Due to these injuries, he walks with a limp, has difficulty standing for long periods of time, cannot move or navigate steps quickly, and has restricted movement in his leg. III.App.348, 396 (Porter deposition).

In 2019, when Porter was approximately sixty-six years old, he applied for a Fee for Service (FFS) Drug and Alcohol Counselor position with Merakey Parkside Recovery (“Merakey”) at its Germantown location. III.App.369-70, 383 (Porter deposition). Merakey is a non-profit drug and alcohol treatment center with multiple facilities in Philadelphia providing counseling, methadone maintenance, and other services. IV.App.460-61 (Gabert declaration). Merakey was hiring for several positions. III.App.254-55 (Wexler deposition).

The job posting specified minimum education and experience requirements. IV.App.419-20. For education, the posting required at least one of the following: a master’s degree or associate’s degree[4] in certain fields, certification as an addictions counselor, or licensure as a registered nurse with a nursing degree. IV.App.419-20. For experience, the posting required one year of clinical experience in a health or human service agency or a practicum in a health or human service agency, with a preference for experience in a drug or alcohol setting. IV.App.419-20. Porter’s resume indicates he had a master’s degree and fifteen years of experience as a behavioral specialist in a drug and alcohol setting, with seven years as a clinical supervisor in a methadone facility. III.App.246.

Merakey selected Porter for an interview, which Robert Wexler (the Clinical Supervisor) and Jordan Seidle (the Program Director) conducted in person in August 2019. III.App.374 (Porter deposition); IV.App.456 (Porter-Merakey emails). Both testified they could not remember the substance of Porter’s interview. III.App.257 (Wexler), 302 (Seidle). Porter testified that the interview lasted about twenty minutes, he responded appropriately to the questions, and Wexler and Seidle stared at his leg, making more eye “contact with my leg than . . . with my eyes.” III.App.375-76, 392.

Merakey did not hire Porter. Instead, it hired Dana Warren and Hailey Eresuma, III.App.261 (Wexler deposition), who were both twenty-eight years old at the time, III.App.301-02, 308 (Seidle deposition) (confirming birthdates). Seidle and Wexler testified they estimated both candidates to be around thirty and did not perceive either to have disabilities. III.App.270, 274 (Wexler), 308-09 (Seidle). Eresuma’s resume indicates she had a bachelor’s degree, five months of experience as a drug and alcohol counselor, around a year of other professional experience, and past volunteer experience. IV.App.428. Warren’s resume listed a master’s degree, around two years of mental health experience, and various other internships and positions. IV.App.436-38. After the hiring, Warren began working in the relevant position, while Merakey transferred Eresuma to a different “IOP counselor” position due to internal caseload shifting. III.App.261 (Wexler deposition).

Porter filed a charge of discrimination with EEOC, which notified Merakey. IV.App.446-51. In March 2020, Merakey’s General Counsel, Jill Garfinkle Weitz, emailed an EEOC investigator regarding Porter’s charge. IV.App.458. Weitz represented that “Mr. Porter was interviewed at our Germantown location for a Fee for Service Counselor/Therapist position. No one was hired for that position, and it was closed out.” IV.App.458.

EEOC issued a notice of dismissal and right to sue. IV.App.459. Porter then filed this suit alleging that Merakey violated the ADA, ADEA, and state law by failing to hire him. II.App.41 (Amended Complaint). Porter initially alleged hiring discrimination related not only to the Germantown position but also to another position at Merakey’s Parkside location. II.App.44 (Amended Complaint). Porter later stipulated to dismissal of that claim. II.App.124 n.1 (Porter summary judgment brief).

B. District Court Decision

Merakey moved for summary judgment, which the district court granted. I.App.3-33. The court first concluded that Porter was not disabled under either an actual disability or “regarded-as” theory. I.App.14-21; see 42 U.S.C. § 12102(1)(A), (C). As to actual disability, the court concluded that a “temporary, non-chronic impairment of short duration is not a disability” under the ADA, I.App.18 (citation omitted), and that Porter “failed to adduce any evidence—other than his own testimony—that he suffers from a long-term disability,” I.App.19. While recognizing Porter’s claim that “to this day, he has difficulty balancing, walking, navigating stairs, kneeling, bending, lifting, and walks with a limp,” the district court nonetheless concluded that Porter “failed to show that this difficulty is substantially limiting” because “only [his] own testimony supports such.” I.App.19.

As to Porter’s “regarded-as” claim, the district court noted Porter’s testimony that one interviewer “looked at his leg” and the other “had his mouth wide open as he watched” Porter walking. I.App.20. The court, however, found this testimony insufficient because it did not establish that Merakey “considered [Porter’s impairment] to be a disability” or to render him “incapable of performing his job requirements.” I.App.21.

The court also held that Porter failed to establish the fourth prong of his prima facie case of age discrimination, i.e., circumstances giving rise to an inference of age discrimination. I.App.31-32. Porter argued that Merakey could deduce his approximate age from his appearance or his resume (stating he graduated college in 1973) and that the selectees were substantially younger, giving rise to an inference that Merakey’s hiring decision was based on age. The district court rejected this, insisting that this Court requires the employer to have “actual knowledge” of the plaintiff’s age, which Merakey lacked. I.App.32.

The district court concluded in the alternative that Merakey offered legitimate, non-discriminatory reasons for its hiring decision and that Porter failed to establish pretext. I.App.22-30, 32-33. The court first rejected Porter’s attempt to ground pretext in his superior qualifications. The court found it “undisputed[]” that Porter was “qualified for the . . . position” and “had more years of experience” than the selectees and recognized a “dispute” about whether those selectees even met the minimum qualifications. I.App.7, 26. The court agreed that had Merakey’s “only reason for its hiring decision” been that the selectees “were better qualified” than Porter, “this could have created an inference of pretext.” I.App.27-28. But the court concluded that Merakey had offered other reasons that Porter could not rebut—namely, that, according to the court, the selectees interviewed better and previously worked for Merakey, and one was bilingual. I.App.27-28.

The district court also rejected Porter’s argument that Weitz’s statement to EEOC that no one was hired for the position amounted to an “intentional fabrication” that established pretext. I.App.28. While recognizing that Weitz’s statement was “at the minimum, factually incomplete and misleading,” the court nonetheless believed a single misstatement of this nature to be legally insufficient to establish pretext. I.App.29.

SUMMARY OF ARGUMENT

The district court made several errors in granting summary judgment. First, the court erred in rejecting Porter’s actual and “regarded-as” disability discrimination claims. As to Porter’s actual disability claim, the district court required him to show a permanent impairment and to provide corroborating medical evidence, but this Court and multiple other circuits have rejected any categorical exclusion of temporary conditions or any categorical rule requiring medical testimony to establish a disability. As to Porter’s “regarded-as” claim, the court required Porter to show that Merakey perceived his impairment to be a disability or to render him incapable of performing the job’s requirements. After the ADAAA, however, a “regarded-as” plaintiff need only show that the employer took adverse action based on an actual or perceived impairment, not that the employer perceived this impairment as disabling or as otherwise precluding performance of the job.

Second, contrary to the district court’s conclusion, a jury could infer Merekay’s knowledge of Porter’s approximate age. An ADEA plaintiff need only point to evidence—direct or circumstantial—from which a reasonable jury could infer an employer’s knowledge of relative age. Here, Porter easily carried that burden by pointing to his appearance during his in-person interview (at age sixty-six) and his resume stating he graduated college in 1973, both of which suggest he was substantially older than the selectees, whom the decisionmakers perceived to be about thirty years old. A jury could thus infer age

discrimination.

Third, the district court erred by concluding that Porter failed to establish a genuine issue of fact as to pretext. Porter did so by pointing to his superior qualifications and Merakey’s inaccurate statement to EEOC about why it did not hire him. This evidence, when viewed in the light most favorable to Porter, as is required on summary judgment, raises a triable issue as to pretext.

ARGUMENT

I. The district court erred by concluding that Porter could not satisfy the ADA’s definition of disability.

The ADA recognizes both actual and “regarded-as” disability discrimination claims. 42 U.S.C. § 12102(1)(A), (C). An actual disability requires proof of “a physical or mental impairment that substantially limits one or more major life activities[.]” Id. § 12102(1)(A). A “regarded-as” claim requires proof that the employer took adverse action “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Id. § 12102(3)(A).

In enacting the ADAAA, Congress sought “to clarify that the

definition of ‘disability’ should be construed ‘in favor of broad coverage

of individuals . . . to the maximum extent permitted.’” Matthews v. Pa. Dep’t of Corr., 613 F. App’x 163, 167 (3d Cir. 2015) (quoting 42 U.S.C. § 12102(4)(A)). Despite Congress’s clear “intent to expand ADA coverage through the [ADAAA],” Eshleman v. Patrick Indus., Inc., 961 F.3d 242, 248 (3d Cir. 2020), the district court here concluded that “only extremely limiting disabilities . . . qualify for protected status,” I.App.17-18 (quoting Marinelli v. City of Erie, 216 F.3d 354, 362 (3d Cir. 2000)), and rejected Porter’s disability claim based on outdated standards the ADAAA expressly abrogated. This was error.

A. Porter need not show a permanent impairment or provide corroborating medical evidence to establish an actual disability.

The district court rejected Porter’s actual disability claim on the basis that his tibia fracture amounted only to a “temporary, non-chronic impairment” that cannot qualify as a disability under the ADA. I.App.18 (citation omitted). This conclusion suffers from two major flaws.

First, the district court incorrectly held that temporary conditions cannot be disabling. While the Supreme Court originally held that an impairment must be “permanent or long term” to qualify as a disability, Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002), “[t]he ADAAA . . . changed the ground rules and defenestrated this requirement,” Mancini v. City of Providence, 909 F.3d 32, 40 (1st Cir. 2018); see also ADAAA, Pub. L. No. 110-325, 122 Stat. 3553 at § 2(b)(5) (2008) (rejecting Toyota as creating an “inappropriately high level of limitation necessary to obtain coverage”). Consistent with this statutory change, EEOC’s regulations now provide that “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting[.]”[5] 29 C.F.R. § 1630.2(j)(1)(ix). Indeed, this Court and multiple other circuits have held that temporary conditions may qualify as a disability after the ADAAA. E.g., Matthews, 613 F. App’x at 167-68; Shields v. Credit One Bank, N.A., 32 F.4th 1218, 1224-25 (9th Cir. 2022); Hamilton v. Westchester Cnty., 3 F.4th 86, 92-93 (2d Cir. 2021); Summers v. Altarum Inst., Corp., 740 F.3d 325, 330-32 (4th Cir. 2014); Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172-73 (7th Cir. 2013).

The district court’s contrary conclusion rested on decisions that themselves pre-dated the ADAAA, see Bolden v. Magee Women’s Hosp. of Univ. of Pittsburgh Med. Ctr., 281 F. App’x 88 (3d Cir. 2008), or that were unpublished district court decisions relying on pre-ADAAA cases, see Kurylo v. Parkhouse Nursing & Rehab. Ctr., LP, No. 17-cv-00004, 2017 WL 1208065, at *4 (E.D. Pa. Apr. 3, 2017) (relying on Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266 (3d Cir. 2012), where conduct occurred prior to ADAAA’s effective date); Brearey v. Brennan, No. 17-cv-2108, 2019 WL 111037, at *5 (E.D. Pa. Jan. 4, 2019) (relying on Macfarlan and Bolden). But cases relying on pre-ADAAA standards are no longer “good law in . . . determining” disability. Morrissey v. Laurel Health Care Co., 946 F.3d 292, 299 (6th Cir. 2019); see also Britting v. Sec’y, Dep’t of Veterans Affs., 409 F. App’x 566, 570 (3d Cir. 2011) (pre-ADAAA disability standard “more demanding”).

The district court was also incorrect to analyze Porter’s impairment under the rubric of a temporary injury in the first place. Porter did not claim that, at the time of the hiring decision, he was suffering from a fractured tibia that was expected to resolve in the near future. Instead, Porter claimed that this past injury continued—roughly eight years later—to impact his ability to walk and stand, with no prospect of abating. The court recognized as much by noting Porter’s claim that “to this day, he has difficulty balancing, walking, navigating stairs, kneeling, bending, lifting, and walks with a limp,” but nonetheless found these limitations insufficient for two reasons, neither of which is persuasive. I.App.19.

First, the district court relied on this Court’s decision in Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996), to suggest that a limp and difficulty navigating stairs are insufficiently disabling. I.App.19. But Kelly was a pre-ADAAA case that relied heavily on prior EEOC regulations requiring a “significant[] restrict[ion]” in performing a major life activity. 94 F.3d at 105-06. The ADAAA expressly rejected these regulations, finding the “significantly restricted” standard to be “inconsistent with congressional intent, by expressing too high a standard.” Pub. L. No. 110-325 at § 2(a)(8); see also 29 C.F.R. § 1630.2(j)(1)(ii) (current EEOC regulations stating that impairment “need not prevent, or significantly or severely restrict” performance of a

major life activity).

Second, the district court concluded that Porter’s limitations were

not substantially limiting because “only [his] own testimony supports such.” I.App.19. But decisions from this Court and other circuits establish that there is “no general rule that medical testimony is always necessary to establish disability.” Marinelli, 216 F.3d at 360 (quoting Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996)); see also Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 999 (10th Cir. 2019) (rejecting “broad, categorical rule that expert proof of disability is required in all ADA cases”); EEOC v. AutoZone, Inc., 630 F.3d 635, 643-44 (7th Cir. 2010) (similar). And EEOC regulations explain that the substantial-limitation inquiry “usually will not require scientific, medical, or statistical analysis.” 29 C.F.R. § 1630.2(j)(1)(v). Thus, “[a] plaintiff’s detailed description of his limitations, standing alone, often will be sufficient to overcome the ‘relatively low bar created by the substantially-limits and summary-judgment standards.’” Mancini, 909 F.3d at 44 (quoting Williams v. Tarrant Cnty. Coll. Dist., 717 F. App’x 440, 448 (5th Cir. 2018) (per curiam)); see also Head v. Glacier Nw., Inc., 413 F.3d 1053, 1058 (9th Cir. 2005) (plaintiff’s testimony sufficient without “comparative or medical evidence” to establish jury question regarding substantial limitation), overruled on other grounds by Murray

v. Mayo Clinic, 934 F.3d 1101 (9th Cir. 2019).

Here, Porter provided testimony detailing difficulties with standing and walking that would permit a reasonable jury to find these major life activities substantially limited. See 42 U.S.C. § 12102(2)(A) (major life activities include standing and walking). He testified he walks with a limp and a “hampered” gait, “can’t move as quickly, ambulating steps as [he] wish[es],” “cannot stand [or] . . . sit for long periods of time,” and has “[r]estricted movement” in his leg and “can’t move [it] in all positions.” III.App.348, 396. A reasonable jury could conclude that “most people in the general population” do not experience these limitations because they can, for example, walk without a limp or stand for long periods of time. 29 C.F.R. § 1630.2(j)(1)(ii); see also Matthews, 613 F. App’x at 168-69 (plaintiff who alleged difficulty walking and navigating stairs due to Achilles tendinitis stated plausible claim of disability on motion to dismiss); Harrison v. Soave Enters. L.L.C., 826 F. App’x 517, 525 (6th Cir. 2020) (plaintiff unable to kneel due to torn ACL raised triable issue of fact regarding disability because “a reasonable juror could determine that the majority of the general population can kneel and does not share [plaintiff’s] physical limitation”); 29 C.F.R. pt. 1630, app. 1630.2(j)(4) (“[A] person whose . . . leg impairment precludes . . . standing for more than two hours without significant pain would be substantially limited in standing, since most people can stand for more than two hours without significant pain.”). Under the correct standard, a reasonable jury could find Porter disabled.

B. Porter need only show that Merakey acted based on an actual or perceived impairment to establish a “regarded-as” claim.

The district court also erred by rejecting Porter’s “regarded-as” claim. In the court’s view, Porter had to show that Merakey not only “noticed [he] suffered from some form of a physical impairment” but also “considered [this impairment] to be a disability” and to render him “incapable of performing his job requirements.” I.App.21. No such showing is required after the ADAAA.

Prior to the ADAAA, a “regarded-as” plaintiff had to show that an employer either “mistakenly believes that [he] has a physical impairment that substantially limits one or more major life activities” or “mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). With the ADAAA, Congress expressly rejected the Sutton standard for “regarded-as” coverage. Pub. L. No. 110-325 at § 2(b)(3) (noting intent to “reject the Supreme Court’s reasoning in [Sutton] with regard to coverage under the [‘regarded-as’] prong”). After the ADAAA, a “regarded-as” plaintiff need only show that the employer took adverse action based on an actual or perceived impairment; it is irrelevant “whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A); see Eshleman, 961 F.3d at 245 (recognizing this standard); Gibbs v. City of Pittsburgh, 989 F.3d 226, 229 (3d Cir. 2021) (same); 29 C.F.R. pt. 1630, app. 1630.2(l) (employee need not “establish the covered entity’s beliefs concerning the severity of the impairment”). “Congress did not expect or intend that this would be a difficult standard to meet.” Eshleman, 961 F.3d at 248 (quoting H.R. Rep. No. 110-730, pt. 2, at 17 (2008)).

The district court reached a contrary conclusion by relying on this Court’s pre-ADAAA decision in Kelly stating that “the mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate . . . that the employer regarded the employee as disabled[.]” I.App.20; Kelly, 94 F.3d at 109. As just explained, however, the ADAAA statutorily superseded this holding by adopting a contrary standard for “regarded-as” claims. This Court should clarify that Kelly is no longer good law on this issue, as other district courts within this Circuit remain confused on this point. See Jakomas v. City of Pittsburgh, 342 F. Supp. 3d 632, 646-47 (W.D. Pa. 2018) (observing confusion about “whether Kelly remains good law on this issue after the ADAAA,” given that this Court “has not issued a precedential opinion on this issue in a case that applies post-ADAAA law”) (collecting cases).

The district court also relied on a statement from this Court’s decision in Eshleman that an employer “regards a person as disabled when it ‘misinterpret[s] information about an employer’s limitations to conclude that an employee is incapable of performing’ his or her job requirements.” I.App.20; Eshleman, 961 F.3d at 245 (alterations in original) (quoting Ross v. Kraft Foods N. Am., Inc., 347 F. Supp. 2d 200, 204 (E.D. Pa. 2004)). But this language simply suggests that such a belief is sufficient rather than necessary for a “regarded-as” claim. Indeed, that is the only logical reading given that the language Eshleman quoted is from a pre-ADAAA case that no longer controls the “regarded-as” analysis and given that Eshleman recognized in the preceding sentence the governing ADAAA standard. Id. (perceived impairment satisfies “regarded-as” standard “whether or not the impairment limits or is perceived to limit a major life activity”) (quoting 42 U.S.C. § 12102(3)(A)).

Here, Porter presented sufficient evidence for a jury reasonably to conclude that Merakey perceived him to have a physical impairment. Porter testified that, when he ascended the stairs, “Mr. Wexler looked down at my leg every step I took, just kept watching my leg as I maneuvered the step. And then when I got to the top and walked to the office Mr. Seid[le] looked at me with his mouth wide open, just stared at me the way I was walking.” III.App.376. Porter also testified that he usually keeps his leg extended when seated and that Seidle and Wexler stared at his leg “off and on during the interview for almost 20 minutes. It was more contact with my leg than it was with my eyes.” III.App.392-93. This perception of a physical impairment would satisfy the “regarded-as” definition of disability if a jury also found that Merakey declined to hire Porter based on that perception.[6] See Harrison, 826 F. App’x at 526 (jury could find that plaintiff satisfied “regarded-as” definition based on evidence that employer perceived plaintiff as having knee impairment and fired her because of that perception); 29 C.F.R. pt. 1630, app. 1630.2(l) (employer that refuses to hire applicant because of skin graft scars has regarded applicant as disabled).

II. Merakey could have inferred the approximate age of the sixty-six-year-old Porter based on his appearance and resume.

The district court held that Porter failed to show that Merakey knew his age and thus could not establish that Merakey’s hiring decision raised an inference of age discrimination. I.App.31-32. While Porter argued that Merakey could deduce his approximate age from his appearance or resume, the court insisted that Merakey must have “actual knowledge” of Porter’s age “to raise an inference of age discrimination.” I.App.32.

It is true that an ADEA plaintiff who “relies on a substantial age

discrepancy between [him]self and [the selectee] . . . must adduce some evidence indicating [the employer’s] knowledge as to that discrepancy to support the interference of discriminatory intent required by the fourth prima facie factor.” Woodman v. WWOR-TV, Inc., 411 F.3d 69, 82-83 (2d Cir. 2005). But such knowledge “need not be demonstrated . . . by direct proof”; instead, “drawing inferences of knowledge from circumstantial evidence” is appropriate. Id. at 83-84; Martinez v. UPMC Susquehanna, 986 F.3d 261, 267 (3d Cir. 2021) (concluding on motion to dismiss that age discrepancy between plaintiff and replacement could be inferred from circumstantial evidence “without knowing dates of birth”); see also Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996) (explaining in Title VII pregnancy case that plaintiff need only point to “evidence from which a rational jury could infer that the employer knew that she was pregnant”).

Here, Porter easily carried his “minimal” burden of “adduc[ing] some evidence, whether direct or indirect, indicating [Merakey’s] knowledge as to the relative ages of the persons compared.” Woodman, 411 F.3d at 83. The decisionmakers testified they believed the selectees were approximately thirty years old. III.App.270, 274 (Wexler), 309 (Seidle). And a rational jury could infer that Merakey knew from Porter’s appearance and resume that he was substantially older than thirty. See Martinez, 986 F.3d at 267 (explaining at motion to dismiss stage that “[p]eople often look at someone’s appearance or experience and infer that person’s rough age”). A jury could reasonably conclude that Wexler and Seidle perceived Porter, a sixty-six-year-old whom they met in person, to be decades older than the selectees. See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1210 (9th Cir. 2008) (appropriate to infer knowledge of age where employer “personally observed” employees and thus “must have possessed a general sense that [they] were relatively advanced in age”); cf. Woodman, 411 F.3d at 73, 90 (insufficient evidence of knowledge of age where individuals making termination decision had “[n]ever met, seen, or spoken with” plaintiff).

Additionally, Porter’s resume, which Wexler and Seidle testified they reviewed, III.App.264-65 (Wexler), 302-03 (Seidle), states he graduated college in 1973, III.App.246. The district court discounted this fact because “people may attend school or begin careers at different points in their lives,” I.App.32, but even if Porter had graduated college the day he was born, he would have been significantly older than the selectees.

The district court relied on two decisions for the proposition that knowledge of age cannot be inferred from an employee’s appearance or resume, I.App.32, but both stand for the opposite proposition. In Sarullo v. U.S. Postal Service, 352 F.3d 789 (3d Cir. 2003) (per curiam), this Court recognized that “an employee’s physical appearance might suggest that he/she is more than forty years of age.” Id. at 799. This Court merely found, under the specific facts of that case (where, we note, plaintiff was only forty-five), that no record evidence suggested that plaintiff’s “appearance convey[ed] knowledge that he [was] over forty.” Id.; see Br. of Appellees, Sarullo v. U.S. Postal Serv., 352 F.3d 789 (3d Cir. 2003) (No. 01-4203), 2002 WL 32395344, *8 (plaintiff forty-five years old). And in Waris v. HCR Manor Care, No. 07-cv-3344, 2009 WL 330990 (E.D. Pa. Feb. 10, 2009), the court suggested that the employer “could deduce [plaintiff’s] minimum age from his resume based on when he completed his education,” id. at *18 (emphasis added), aff’d sub nom. Waris v. Heartland Home Healthcare Servs., Inc., 365 F. App’x 402, 405 (3d Cir. 2010) (per curiam) (agreeing plaintiff established prima facie case). There is thus no basis to reject the logical conclusion that Merakey could infer Porter’s approximate age from his resume and appearance.

III. Porter created a triable issue of fact as to pretext for his age and disability discrimination claims.

The district court made legal errors and misapplied the summary judgment standard by concluding that no reasonable jury could find that Merakey’s proffered reasons for not hiring Porter were pretextual. Viewed under the proper standards, Porter created a fact issue as to pretext by pointing to: (1) his objectively superior qualifications for the position; and (2) Merakey’s inaccurate statement to EEOC about why it did not hire Porter.

A. Porter’s superior qualifications are indicative of pretext.

Evidence of a plaintiff’s superior qualifications “may suffice . . . to show pretext.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006); see Bray v. Marriott Hotels, 110 F.3d 986, 991-97 (3d Cir. 1997) (fact issue as to whether plaintiff was “superior candidate” for promotion

precluded summary judgment as to pretext).

Here, a jury could find that Porter had objectively superior

qualifications for the position. First, it is clear that Eresuma was unqualified because she lacked the minimum educational requirements, as she had only a bachelor’s degree, while the job posting required a master’s degree, associate’s degree, or other certifications or licensures absent from her resume. IV.App.419-20 (posting), 428 (resume).

Second, a jury could conclude that both Eresuma and Warren were unqualified because they lacked the minimum experience requirements. The posting required one year of clinical experience in a health or human service agency or a practicum in a health or human service agency. IV.App.419-20. As the district court noted, Porter argued that “Ms. Eresuma only had five (5) months of experience as a counselor in a drug and alcohol setting, and Ms. Warren only had eight (8) months of experience in Outpatient Mental Health with no experience in a drug and alcohol setting,” but Merakey failed to meaningfully rebut this argument, simply responding that both candidates “possessed the requisite level of skill . . . without further explanation.” I.App.26 (citing II.App.174 (Merakey brief offering conclusory assertion that selectees “possessed the requisite level of experience”)).

“A jury could logically conclude that any reasonable employer would deem an individual who meets the stated qualifications of the job to be more qualified than one who does not.” Ham v. Washington Suburban Sanitary Comm’n, 158 F. App’x 457, 466 (4th Cir. 2005); see also Mohammed v. Callaway, 698 F.2d 395, 400-01 (10th Cir. 1983) (inference of pretext where selectee lacked required degree); Gillaspy v. Dallas Indep. Sch. Dist., 278 F. App’x 307, 314 (5th Cir. 2008) (per curiam) (fact issue as to pretext where two selectees “failed to meet the minimum education and experience requirements”).

Third, even if Warren and Eresuma somehow met the minimum requirements, the vast disparity between their qualifications and Porter’s creates a fact issue as to pretext. See Waris, 365 F. App’x at 405 (inference of pretext could arise if “the differences between [plaintiff] and [the hired candidate] were . . . so disparate that a reasonable factfinder could rationally conclude that [plaintiff] was clearly the better candidate for the job”). As the district court recognized, it is “undisputed” that Porter “had more years of experience” than Eresuma or Warren. I.App.26. Porter’s resume shows fifteen years of experience, with seven years of supervisory experience, in a drug and alcohol setting as preferred by the job posting. III.App.246. The selectees, in contrast, had only between one to three years of professional experience, much of which was not in a drug and alcohol setting and none of which was supervisory. IV.App.428, 436-38 (resumes). The “balance of qualifications” thus “weighed markedly in [Porter’s] favor,” permitting a jury to “legitimately infer that [Merakey] consciously selected a less-qualified candidate—something that employers do not usually do” absent discriminatory considerations. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294-95 (D.C. Cir. 1998) (en banc); Gillaspy, 278 F. App’x at 314 (jury could find pretext where plaintiff had twenty years of experience compared to selectees’ minimal experience); Ham, 158 F. App’x at 465 (same where “significant twenty-year experiential gap” existed between selectee and plaintiff).

The district court agreed that had Merakey’s “only reason for its hiring decision been because [the selectees] were better qualified” than Porter, “this could have created an inference of pretext.” I.App.27-28. But the court believed Merakey had proffered three other reasons that Porter failed to rebut—namely, that the selectees interviewed better and previously worked for Merakey, and one was bilingual. I.App.27-28. But Merakey never proffered two of these reasons to explain the hiring decision in question and the third reason is partially unsupported by the record. First, Merakey cited Porter’s poor interview and the bilingual status of one candidate to explain its hiring decision at the Parkside location (a claim Porter no longer pursues), rather than the Germantown location at issue in the litigation. II.App.84-85 (Merakey summary judgment brief), 106-07 at ¶¶ 23-29 (Merakey statement of undisputed facts). Indeed, these considerations are unavailing in connection with the Germantown hiring decision at issue because Wexler and Seidle testified they could not recall the substance of Porter’s interview and because neither Warren nor Eresuma’s resume reflects bilingual skills. III.App.257 (Wexler), 302 (Seidle); IV.App.428, 436-38 (resumes). Second, while Warren previously worked at Merakey, Merakey identifies no record evidence suggesting Eresuma did so. Merakey cites Wexler’s deposition for this proposition, II.App.110 at ¶ 53 (Merakey statement of undisputed facts), but the cited testimony (and Eresuma’s resume) make no mention of Merakey work experience, III.App.268-70 (Wexler deposition); IV.App.428 (resume). In any event, the bare fact of prior Merakey experience is insufficient to preclude a “reasonable factfinder [from] rationally conclud[ing] that [Porter] was clearly the better candidate for the job” in light of his otherwise superior qualifications. Waris, 365 F. App’x at 405.

B. Merakey’s inaccurate statement to EEOC is further evidence suggesting pretext.

Merakey’s inaccurate statement to EEOC that “[n]o one was hired” for the position in question “and it was closed out,” IV.App.458 (Weitz email), further supports a pretext inference. Given that Merakey did in fact hire two younger individuals without apparent disabilities, “[a] jury would be entitled to find [Merakey’s] proffer to the EEOC disingenuous and evidence of pretext.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 238 (5th Cir. 2015) (EEOC position statement contained inaccurate and misleading information); see also Smith v. Borough of Wilkinsburg, 147 F.3d 272, 281 (3d Cir. 1998) (inconsistency between reasons for employment decision given to EEOC and given at trial sufficient for jury to find pretext); Castro v. DeVry Univ., Inc., 786 F.3d 559, 574 (7th Cir. 2015) (reversing grant of summary judgment to employer as to retaliatory motive where jury “could find that [employer’s] statement to the EEOC was deliberately false”); Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir. 2013) (jury may view “erroneous statements in [an] EEOC position statement” as “circumstantial evidence of discrimination”).

The district court offered two reasons for finding that Merakey’s erroneous statement to EEOC could not give rise to a pretext inference. Neither are persuasive. First, the court appeared to attribute a benign motive to the misstatement, suggesting it resulted from “confusion” stemming from Porter’s use of “multiple resumes, applications and addresses” when applying. I.App.28. As an initial matter, such “issues involving state of mind and intent are not well suited to disposition by summary judgment,” since “assessing credibility is a delicate matter best left to the fact finder.” Watts v. Univ. of Del., 622 F.2d 47, 52 (3d Cir. 1980) (citation omitted). And the misstatement in question has nothing to do with the number of applications Porter may have submitted; Weitz correctly identified the position for which Porter applied—the “Fee for Service Counselor/Therapist position” at the “Germantown location”—but incorrectly represented that Merakey hired no one for the position. IV.App.458.

Moreover, Merakey did not claim below that it misspoke due to confusion; instead, it doubled down on the inaccurate statement, insisting it was correct because “another Fee For Service position at Germantown was left unfilled.” II.App.90 (Merakey brief); see IV.App.453 at ¶ 8 (Weitz declaration defending statement to EEOC on ground that Porter “applied for a counselor position at Merakey’s Germantown location that was not filled”). Although the basis for this assertion is unclear, Merakey appears to have argued that the position was technically unfilled because Eresuma moved into another position after Merakey hired her. See I.App.28 (district court framing “dispute as to the veracity of [Weitz’s] statement” as stemming from fact that “though both Ms. Eresuma and Ms. Warren were hired for the open FFS positions, because Ms. Eresuma began a job as an IOP counselor instead, one (1) FFS position remained open”).

This purported technicality does not pass muster because, as the district court elsewhere acknowledged, Eresuma was indeed “initially hired” into the relevant position and only “thereafter began [a different] role[.]” I.App.26 (emphasis added); see also IV.App.426 (Merakey interrogatory responses) (position for which Porter interviewed “was given to Dana Warren and Haile[y] Er[e]suma”); III.App.261 (Wexler deposition) (Warren and Eresuma “actually were hired” for relevant position but Eresuma later assumed different position). In any event, it is undisputed that Merakey filled at least one position by hiring Warren, making Weitz’s claim that “[n]o one was hired for th[e] position” inaccurate. IV.App.458 (emphasis added); see IV.App.455 (contemporaneous email from Merakey recruiter informing Porter that “[t]he position has been filled”).

The district court next seemed to pivot away from the benign motive it attributed to Weitz’s statement, framing the statement instead as “incomplete,” “misleading,” and potentially “suspicious.” I.App.29. The court nonetheless concluded that a single misstatement of this nature could not create a pretext inference, I.App.29, relying on Hennessey v. Dollar Bank, FSB, No. 18-977, 2019 WL 6790633 (W.D. Pa. Dec. 12, 2019), aff’d, 833 F. App’x 961 (3d Cir. 2020). The district court, however, mischaracterized both the facts and holding of Hennessey. First, the employer in Hennessey did not, as the district court said, “ma[k]e undeniably false statements to the EEOC,” I.App.29, but instead made those statements to unemployment compensation authorities, 833 F. App’x at 964. Second, Hennessey did not hold that a single misstatement could never establish pretext; instead, this Court found the particular misstatement insufficient because it did not “contradict the core facts undergirding” the employer’s reason for termination. Id. at 966. Here, in contrast, Merakey’s inaccurate statement does “contradict the core facts” underlying the hiring decision because it suggests that Merakey hired no one for the position when Merakey instead hired two younger individuals with no apparent disabilities instead of Porter. The misstatement goes to the heart of Merakey’s hiring process and, together with Porter’s superior qualifications, raises a fact issue as to pretext.

CONCLUSION

For the foregoing reasons, the district court’s judgment should be reversed.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIfer s. goldstein

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s Chelsea C. Sharon

CHELSEA C. SHARON

DC Bar No. 1016006

Attorney

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2889

chelsea.sharon@eeoc.gov

March 6, 2023

[1] EEOC takes no position on any other issue in this case.

[2] Because this case was decided on summary judgment, EEOC recites the facts in the light most favorable to Porter. Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020).

[3] Appendix references take the form “[Volume number].App.[page number].”

[4] The posting was inconsistent regarding whether an associate’s degree met the requirements. Compare IV.App.419, 420.

[5] Congress authorized EEOC to issue regulations to implement the ADA’s definition of disability. 42 U.S.C. § 12205a.

[6] Unlike for actual disability claims, the ADA “limits ‘regarded as’ claims by excluding ‘impairments that are transitory and minor.’” Eshleman, 961 F.3d at 246 (quoting 42 U.S.C. § 12102(3)(B)). Merakey argued mistakenly in its summary judgment briefing that Porter’s impairment did not satisfy the actual disability standard because it was temporary in nature but made no such argument concerning the “regarded-as” claim. II.App.82-83. Nor did the district court rely on this rationale in rejecting that claim. I.App.20-21.