TABLE OF CONTENTS

Table of Authorities.......................................................................................... ii

Argument.......................................................................................................... 1

A. AutoZone misstates the record......................................................... 1

B. The EEOC’s requested jury instruction was legally correct,

factually appropriate, and essential to this case................................ 6

1. This case is like Miller v. Illinois Dep’t of Transportation.............. 6

2. The district court erred by rejecting the proposed instruction..... 10

C. Notwithstanding isolated testimony in AutoZone’s favor, the

jury’s verdict was against the manifest weight of the evidence........ 13

D. Insinuations and character attacks do not create a jury question

on the issue of disability................................................................... 16

Conclusion...................................................................................................... 19

Certificate of Compliance

Certificate of Service

TABLE OF AUTHORITIES

Cases

Byrd v. Ill. Dep’t of Pub. Health, 423 F.3d 696 (7th Cir. 2005)...................... 12

Dazenko v. James Hunter Mach. Co., 393 F.2d 287 (7th Cir. 1968)............... 12

Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906 (7th Cir. 2011).......... 15

Javier v. City of Milwaukee, 670 F.3d 823 (7th Cir. 2012).............................. 11

Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958 (7th Cir. 2014).... 13

Miller v. Ill. Dep’t of Transp., 643 F.3d 190 (7th Cir. 2011)........................ 6-10

Shell v. Smith, ___ F.3d ___, 2015 WL 3649612 (7th Cir. June 15, 2015)..... 15

U.S. v. Sblendorio, 830 F.2d 1382 (7th Cir. 1987).......................................... 12

U.S. v. Whitlow, 740 F.3d 433 (7th Cir. 2014)................................................ 15

Statutes

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

§ 12102(1)(A)-(B)................................................................................. 16

§ 12102(4)(E)(1).................................................................................... 18

Americans with Disabilities Act Amendments Act,

Pub. L. 110-325, 122 Stat. 3553 (Sept. 28, 2008)................................. 18

Rules and Regulations

29 C.F.R. § 1630.2(j)(1)(vi)............................................................................ 18

29 C.F.R. § 1630.2(n)(3)........................................................................... 11, 16

Fed. R. Evid. 606(b)(1)................................................................................... 12

Other Authority

EEOC Interp. Guidance on Title I of the ADA,

29 C.F.R. § 1630.2(j)(1)(ix)............................................................. 16-17

Argument

In its opening brief, the EEOC urged this Court to reverse, remand for a new trial, and remove the issue of disability from the jury. The EEOC argued that (1) the district court’s failure to give its requested “team” instruction confused the jury and prejudiced the EEOC, (2) the jury’s verdict was against the manifest weight of the evidence, and (3) evidence on the issue of disability points in only one direction so there is no dispute for the jury to resolve.

In its responsive brief, AutoZone accuses the EEOC of misstating the law and facts regarding its requested jury instruction, asserts that the jury verdict rests on a credibility contest and conflicting evidence, and continues to argue that the issue of disability is a jury question. All of AutoZone’s arguments rest on a mischaracterization of the record evidence. For the reasons stated here and in the EEOC’s opening brief, the EEOC asks this Court to reject AutoZone’s arguments and to rule in favor of the EEOC.

A. AutoZone misstates the record.

AutoZone wrongly states that “virtually everything” about Zych’s job “can entail lifting objects weighing more than 15 pounds.” (AutoZone Br. at 22) It points to testimony that parts sales managers (“PSMs”) had to lift heavy objects “all the time” (id. at 2), but ignores evidence putting this vague statement into context. While it is true that many objects in the store were heavy (id. at 4), undisputed evidence showed that most items weighed less than fifteen pounds. (Tr. at 158, 761) As a PSM, Angel Maldonado “lifted” more than forty times per day (AutoZone Br. at 3, 28), but more than 90% of the items he lifted were light. (Tr. at 157-58) Even heavy car batteries, which AutoZone claims PSMs had to lift “all the time” during the winter (AutoZone Br. at 4, 28), needed to be lifted in the winter no more than two to four times per week. (Tr. at 623)

AutoZone stresses that its Cudahy store was “leanly staffed” (AutoZone Br. at 2), but it ignores undisputed evidence that the store had a minimum staffing requirement of two to three people at all times. (Tr. at 72) Accordingly, there was always someone available to help Zych lift. It is not true, as AutoZone implies, that employees could typically be in the store alone. (AutoZone Br. at 3) Zych testified that she was in the store alone only once, and for only three hours, during a ferocious snow storm. (Tr. at 188) She thought, but was not sure, that another manager might have had to open the store alone once or twice. (Tr. at 385-86) These situations were rare exceptions to company policy.

AutoZone’s store handbook directed employees not to lift more than they could carry and to “ask for help [with lifting] when needed.” (Tr. at 60-61) AutoZone says that the drafter of this language intended it to apply not to regular store merchandise but to special order products. (AutoZone Br. at 2) The store handbook, however, does not contain this limitation and AutoZone employees did not understand it to do so. Undisputed evidence shows that even before her injury, Zych received help lifting heavy items. (Tr. at 500) AutoZone misrepresents the record by stating otherwise. (AutoZone Br. at 18 (“nor was there a single occasion on which [coworkers] helped Zych prior to her injury”)) Other employees received help as well. (Tr. at 427) Maldonado testified that if anyone asked for assistance lifting on truck days, employees would help one another. (Tr. at 627)

AutoZone acknowledges that PSMs “sometimes” received help lifting (AutoZone Br. at 18-19) and implies that Zych sought help more than “sometimes.” The evidence, however, shows that after her injury, on an average day, Zych needed to ask for help with lifting only once or twice. (Tr. at 158, 202) The fifteen-pound lifting restriction on her right arm did not prevent her from working with heavier objects. She could lift most car batteries with her left arm because most of them had handles. (Tr. at 288) She could also rearrange heavy planogram items on lower shelves by sliding rather than lifting them. (Tr. at 287, 408)

Zych’s supervisors and coworkers unanimously testified that it was not a hardship for them to help Zych lift heavy items and that they considered helping her to be part of their jobs. (Tr. at 85-86, 633, 761, 768) Zych testified that if another employee had to leave the counter or a register to help her, she temporarily took over his duties until he could return to what he had been doing. (Tr. at 201-02)

AutoZone protests that “the consequence of reallocating a PSM’s heavy lifting responsibilities to other employees is upset customers and complaints” (AutoZone Br. at 8), but the record does not support this assertion. Customers complained during the one or two times that Zych and Barry Kurta, who had only one functional arm (Tr. at 56), were scheduled to work alone together. (Tr. at 199-200, 551-52) Zych talked to her supervisor about this and he never scheduled them to work alone together again. (Tr. at 200)

AutoZone unconvincingly seeks to distinguish Kurta from Zych on the ground that Kurta could lift heavier items. (AutoZone Br. at 6; Tr. at 628-29). However, undisputed testimony showed that Kurta, too, occasionally needed help. (Tr. 56, 63, 556) He required help not only for bulky items, as AutoZone states (AutoZone Br. at 6), but also for heavy ones. (Tr. at 556) He specifically testified that he was unable to do “any heavy lifting” when he waited on customers. (Id.) On truck days, Maldonado testified, Kurta (like Zych) would often work at the store counter rather than unload the truck. (Tr. at 629)

AutoZone does not dispute that regional human resources manager Dawn Devereaux ordered Zych’s termination without understanding AutoZone’s accommodation obligations, without asking about Zych’s performance, and without asking about the impact of her lifting restriction. (Tr. at 92, 100-02, 651-53) Had she asked about Zych, district manager Alfredo Morales testified, “I would have told them that her restriction is a non-issue. It wasn’t a problem for anybody in the store.” (Tr. at 92) Robert Diaz, Zych’s immediate supervisor, responded to news of Zych’s termination by exclaiming, “This is bullshit.” (Tr. at 104)

Moreover, AutoZone ignores its 2012 training document telling managers that they should generally accommodate ten-pound lifting restrictions. (Tr. at 678-79; Ex. 19, App. at 23) Devereaux, representing AutoZone’s human resources department, conceded that nothing about the PSM job had changed between 2009, when Zych was fired, and 2012. (Tr. at 678) She testified that if accommodating a ten-pound restriction is good advice now, it was good advice then. (Tr. at 679)

AutoZone also ignores its shifting job requirements. The original job description that AutoZone provided in connection with Zych’s worker’s compensation claim did not mention any arm requirements. (Ex. 6, App. at 20-21) Only after Zych filed a charge with the EEOC did AutoZone say that PSMs had to be able to lift up to 75 pounds. (Ex. 1019, App. at 24)

With respect to Zych’s disability, AutoZone misleadingly suggests that her doctor performed two surgeries based only on subjective reports of pain. (AutoZone Br. at 7) AutoZone seeks to disregard Zych’s July 2007 MRI and x-ray, which revealed a torn tendon, torn rotator cuff, a bulging disc in her neck, and separation of her shoulder bone and collar bone. (Tr. at 203, 205, 232) Likewise, AutoZone ignores that Zych’s second MRI also showed an area of shoulder injury, a ganglion cyst at her collarbone, and tendonitis. (Tr. at 236, 264) AutoZone emphasizes that Zych’s surgeon did not perform his own tests to assess Zych’s level of pain (AutoZone Br. at 7), but ignores testimony that the surgeon relied on therapy notes by trusted occupational and physical therapists with whom he had worked for fifteen years. (Tr. at 271-72) The occupational and physical therapists did test the extent of Zych’s pain and confirmed her limitations. (Tr. at 226)

B. The EEOC’s requested jury instruction was legally correct,

factually appropriate, and essential to this case.

1. This case is like Miller v. Illinois Dep’t of Transortation

AutoZone misrepresents the facts and holding of Miller v. Illinois Department of Transportation (“IDOT”), 643 F.3d 190 (7th Cir. 2011). In that case, Darrell Miller worked for five years as a highway maintainer on a bridge crew consisting of a bridge technician and four other highway maintainers. Miller was responsible for a variety of tasks, some of which could be performed from the ground and others that required working at some height above the ground or water. From the beginning of his employment, Miller had an extreme fear of heights. Nevertheless, he was able to perform virtually all of the tasks requiring him to work at heights up to eighty feet. For the few tasks where he could not overcome his fear, IDOT allowed other team members to take his place. Likewise, IDOT accommodated other team members’ limitations by allowing crew members to swap assignments as needed. Id. at 192-93.

Four years after beginning his job, Miller had a panic attack and, for the first time, became unable to complete an assigned task. He was diagnosed with acrophobia and told IDOT he could no longer work at heights above 20-25 feet in an exposed, extreme position. IDOT interpreted this to mean that he could no longer work in any situation above any height greater than twenty feet and determined that he was unfit for his job. Id. at 193-94. Miller sought the same reasonable accommodation he had received in the past, namely, allowing crew members to swap duties as needed. IDOT denied his request. Id. at 194.

This Court held that a reasonable jury could find that (1) working above 20-25 feet in an extreme or exposed position was not one of Miller’s essential job functions, and (2) Miller’s proposed accommodation was reasonable. Id. at 197. “[A]fter all,” the Court said, “he was asking only that he be allowed to work as he had worked successfully for several years.” Id.

The Court acknowledged that some high work in extreme or exposed positions was an essential job function of the bridge crew as a whole. Id. at 198. “IDOT would have us take that point a step further to find that any individual assigned to the bridge crew had to be able to perform each and every task of the entire bridge crew,” the Court said. “That would require finding that every task required of the bridge crew as a whole was an essential task of each bridge crew member. On this record, we cannot make that finding as a matter of law. Plaintiff has come forward with substantial evidence showing that his bridge crew did not actually work that way. . . . As in other ‘team’ environments, the individual members took on tasks according to their capacities and abilities.” Id. (citing 29 C.F.R. § 1630.2(n)(3) (considering actual experience of past and present employees)).

Critical to the Court’s holding was evidence “that it was in fact the normal course for individual members of the bridge crew to substitute and reassign tasks among themselves according to individual abilities, preferences, and limitations. Miller’s request for reasonable accommodation did not ask IDOT to do anything it was not already doing . . . .” Id. at 199-200. Accordingly, the Court held, “[a] jury should be permitted to consider Miller’s actual work environment and IDOT’s past flexibility in delegating tasks amongst the bridge team members in deciding whether Miller’s request for accommodation was reasonable.” Id. at 200.

Contrary to AutoZone’s portrayal (AutoZone Br. at 14-18), the facts of this case echo those of Miller. It is not true, as AutoZone says (id. at 15), that from the outset of his employment, Miller was already unable to work at heights above 25 feet in exposed or extreme positions. Like Zych, Miller began his job able to do more than he could after he was diagnosed with a disability. The change in his abilities did not affect the Court’s analysis. The Court said that the relevant question was whether the team as a whole was already helping one another at the outset of Miller’s employment, and not whether Miller needed more help after becoming disabled than he needed at first. Miller, 643 F.3d at 199-200. This is precisely what the EEOC said in its opening brief. (EEOC Br. at 18)

As in Miller, AutoZone’s employees had a practice of helping one another with heavy lifting even before Zych’s injury. (Tr. at 427, 500, 556, 627) Zych testified, “I was getting help even before I got injured from other AutoZoners. And there were other women who worked there too, where other people would help them if they couldn’t carry something. And it’s part of what’s in our handbook: if you can’t carry it, you ask for help.” (Tr. at 427) AutoZone cites Maldonado’s testimony in an effort to dispute this point (AutoZone Br. at 13), but the very language that AutoZone cites supports the EEOC. When asked, “There was no division between having the stronger people lift the heavier things and the less strong people?” Maldonado responded, “Not unless somebody asked for help, no.” (Id. at 13; Tr. at 627)

When her coworkers continued to help Zych after her injury, this was just an extension of what they had already been doing. Accordingly, Miller is directly on point. In Miller, the team’s history of swapping tasks could permit a reasonable jury to find that working at heights in an exposed or extreme position was an essential function of the team but not of any particular individual. Similarly, AutoZone’s history of coworkers helping one another with heavy lifting could allow a reasonable jury to find that lifting heavy objects was an essential function for the team but not for Zych.

2. The district court erred by rejecting the proposed instruction.

The EEOC asked the court to include the following language in its jury instruction on essential job functions:

In team working environments, where team members perform tasks according to their capacities and abilities, job functions that are not required of all team members are not essential functions. Where there is no required manner in which employees are to divide the labor, the fact that one team member may not be able to do all the tasks assigned to the team does not mean that person is unable to perform his or her essential functions.

(R.199-1, EEOC Supp. Proposed Jury Instr. No. 8; Tr. at 780-81) This proposed instruction accurately reflects the law as explained in Miller.

Contrary to AutoZone’s argument (AutoZone Br. at 20-23), the proposed instruction did not direct the jury to find that lifting more than fifteen pounds was not an essential function of Zych’s job if she worked in a team environment. The instruction properly asked the jury to consider whether the precise job function at issue – lifting more than fifteen pounds – was one “not required of all team members.” Thus, the proposed instruction framed the essential job function as a question of fact.

Moreover, the proposed instruction would have amplified rather than supplanted the instruction actually given to the jury, which encouraged the jury to consider multiple factors and all of the evidence in the case. The district court instructed the jury:

Not all job functions are “essential.” Essential functions are a job’s fundamental duties. In deciding whether a function is essential, you may consider the reasons the job exists, the number of employees Defendants have to do that kind of work, the degree of specialization the job requires, Defendants’ judgment about what is required, the consequences of not requiring an employee to satisfy that function, and the work experience of others who held the position. The amount of time spent on the job performing the function is also a factor used to determine whether a task is an essential function. However, an essential function need not encompass the majority of an employee’s time, or even a significant quantity of time, to be essential.

(R.208, Jury Instr. at 13)

Even though the district court’s instruction correctly recited many of the factors from the applicable regulation, see 29 C.F.R. § 1630.2(n)(3), omitting the EEOC’s proposed instruction confused the jury and prejudiced the EEOC. The instruction given referred to “the job” as if all PSMs had to perform in exactly the same manner. (R.208, Jury Instr. at 13) Evidence that employees routinely helped one another to lift heavy items would allow a jury to find that this was not true. See Javier v. City of Milwaukee, 670 F.3d 823, 830 (7th Cir. 2012) (remanding for new trial where jury instruction was legally correct but “materially incomplete”); Byrd v. Ill. Dep’t of Pub. Health, 423 F.3d 696, 709 (7th Cir. 2005) (remanding for new trial where jury instruction was generally correct but omitted critical legal point); Dazenko v. James Hunter Mach. Co., 393 F.2d 287, 291 (7th Cir. 1968) (remanding for new trial where jury instruction did not “sufficiently perform[ ] the office of the . . . instruction requested and not given”).

Notably, the jury asked the court, “Can the jury make a statement about its beliefs about the conduct of the parties notwithstanding the verdict?” (Tr. at 789) This question suggests that the proffered jury instruction might have made a difference in the outcome. This Court may reasonably infer from the question that the jury was inclined to find for the EEOC but felt constrained to rule for AutoZone.

AutoZone wrongly suggests that Rule 606(b)(1) of the Federal Rules of Evidence precludes the Court from considering this jury question. (AutoZone Br. at 23 n.3) Rule 606(b)(1) applies only to a juror’s testimony about the contents of the jury’s deliberations. It does not prohibit the Court from considering pre-verdict, on-the-record jury questions.

AutoZone is correct that jury instructions need not describe all permissible inferences (AutoZone Br. at 22), but under certain circumstances, they must describe some. See U.S. v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir. 1987) (judge should “usually leave the subject [of permissible inferences] to the argument of counsel”) (emphasis added). Under the facts of this case, the district court should have given the “team” instruction. Its failure to do so prevented the jury from fully understanding the applicable law.

C. Notwithstanding isolated testimony in AutoZone’s favor, the jury’s verdict was against the manifest weight of the evidence.

AutoZone is wrong that this case involves credibility decisions about competing evidence. (AutoZone Br. at 26) Most of the EEOC’s evidence is undisputed.

On an average day, Zych had to ask for help with lifting only once or twice. (Tr. at 158, 202) Lifting heavy objects was such a small part of her job that no reasonable jury could find it to be an essential job function. See Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958, 962 (7th Cir. 2014) (job function is not essential “if it was so small a part [of the job] that it could be reassigned to other employees at a negligible cost to the employer”).

AutoZone emphasizes that it stocked many items weighing over fifteen pounds and it catalogues the many situations in which an employee might have to lift a heavy item. (AutoZone Br. At 3-5) However, undisputed evidence shows that most of AutoZone’s stock weighed less than fifteen pounds (Tr. at 158, 761), that the vast majority of lifting involved items weighing less than fifteen pounds (Tr. at 157-58), and that even during the winter, PSMs had to lift heavy car batteries no more than two to four times per week. (Tr. at 622-23) AutoZone’s laundry list of heavy items cannot change these facts.

Undisputed evidence also shows that Zych was able to lift more than fifteen pounds with her left arm (Tr. At 288), meaning that she needed help less frequently than AutoZone suggests. Zych could lift most car batteries with her left arm because most of them had handles. (Id.) She could also rearrange heavy planogram items on lower shelves by sliding rather than lifting them. (Tr. at 287, 408)

Importantly, AutoZone does not deny that its store manual instructs employees to ask for help lifting heavy objects. (Tr. at 60-61) The drafter of this manual attempted to explain away the language by saying that he did not intend for it to refer to regular store merchandise (Tr. At 564-66), but the manual is not limited in that way. Uncontroverted evidence shows that employees regularly helped one another to lift heavy items in conformance with AutoZone’s instructions. (Tr. At 427, 500, 556, 627) AutoZone concedes that employees “sometimes” received help. (AutoZone Br. at 18)

There is no evidence to support AutoZone’s contention that, rather than being the normal way of doing business, “the assumption of Zych’s heavy lifting responsibilities by co-workers was an accommodation AutoZone afforded Zych in connection with AutoZone’s management of her pending worker’s compensation claim.” (AutoZone Br. at 17) To the contrary, the evidence shows that Zych’s coworkers helped her to lift heavy items from the beginning of her employment. (Tr. at 500) No accommodation was required.

AutoZone terminated Zych without any inquiry into her performance and without asking about the impact of her lifting restrictions. (Tr. at 92, 100-02) No one explained why it was no longer permissible for Zych to ask for help. This fact, which AutoZone does not and cannot dispute, is evidence of discrimination. See Shell v. Smith, __ F.3d __, 2015 WL 3649612, at *6 (7th Cir. June 15, 2015) (jury could find for plaintiff based on employer’s failure to make “informed ‘decision’ that keeping [plaintiff] employed in the same position, and doing the same duties he had done for twelve years prior, was untenable because it required others to perform an essential function of the position”).

AutoZone argues that the EEOC has waived its sufficiency-of-the-evidence argument by writing concisely and not referencing what it considers to be the relevant regulation. (AutoZone Br. at 24-25) The waiver argument is hollow because AutoZone has fully responded to the EEOC’s contentions. See U.S. v. Whitlow, 740 F.3d 433, 439 (7th Cir. 2014) (by responding on the merits, government “waived any waiver”); Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 913 (7th Cir. 2011) (“The underlying concern [behind waiver] is to ensure that the opposing party is not prejudiced by being denied sufficient notice to respond to an argument.”)

In any event, the sufficiency of the evidence argument turns on facts, not legal authority. The regulation AutoZone considers controlling merely enumerates a non-exhaustive list of factors and says that “all relevant evidence should be considered.” 29 C.F.R . § 1630.2(n)(3). AutoZone acknowledges that the determination of whether a job function is essential turns on “the circumstances of the case.” (AutoZone Br. at 21) The EEOC’s opening brief summarized the relevant facts and demonstrated the implausibility of the jury’s verdict. (EEOC Br. at 20-21)

D. Insinuations and character attacks do not create a jury question on the issue of disability.

Zych is “disabled” under the Americans with Disabilities Act (“ADA”) if she has a physical or mental impairment that substantially limits one or more of her major life activities or if she has a record of such an impairment. 42 U.S.C.

§ 12102(1)(A)-(B). Zych satisfies both of these tests.

With respect to an actual impairment, Zych is permanently restricted from lifting more than fifteen pounds with her right arm. Lifting is a major life activity for purposes of the ADA, id. § 12102(2)(A), and a fifteen-pound lifting restriction is a substantial limitation. See EEOC Interp. Guidance on Title I of the ADA, 29 C.F.R. § 1630.2(j)(1)(ix) (“if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting”).

AutoZone suggests, without any evidence, that Zych may have invented her injury for the sole purpose of obtaining money from AutoZone. (AutoZone Br. at 36, 38-39 (not citing record)) This fantasy does not amount to admissible evidence. Moreover, AutoZone would have a jury believe that Dr. Shovers operated on Zych not once, but twice, based solely on Zych’s self-reported pain. (Id. at 36-41) In fact, Zych’s injuries were documented by medical imaging, and her continuing pain was documented by physical and occupational therapists whom Dr. Shovers had known and trusted for fifteen years. (Tr. at 203, 205, 232, 234, 236, 261, 271-72, 472) These therapists tested Zych’s range of motion and level of pain in the presence of a nurse retained by AutoZone’s third party insurance administrator. (Tr. at 194) Dr. Shovers relied on their reports in his treatment decisions. (Tr. at 271-72)

Even if there were some doubt about Dr. Shovers’s assessment, Zych has a “record of” a substantially limiting physical impairment sufficient to qualify her as “disabled” under the ADA. MRI and x-ray results show that in 2007, Zych had a torn tendon, torn rotator cuff, and separation of her shoulder bone and collar bone. (Tr. at 203, 232) She went through two years of physical therapy, occupational therapy, pain medication, cortisone injections, and two surgeries. (Tr. at 205, 270, 231, 233, 234, 237) Curiously, AutoZone argues that Zych’s 2007 tests are irrelevant to the “record of” analysis because prior to 2009, the ADA would have considered Zych’s injuries to be temporary and therefore not a disability. (AutoZone Br. at 40) Whether or not AutoZone is correct about pre-2009 law, Zych’s “record of” disability must be assessed under current standards. The ADA Amendments Act, Pub. L. 110-325, 122 Stat. 3553 (Sept. 28, 2008), does not create a two-tier system under which pre-amendment health records are evaluated based on pre-amendment law. Current law considers Zych’s injuries without the ameliorating effects of surgery and other treatments. 42 U.S.C. § 12102(4)(E)(1); 29 C.F.R. § 1630.2(j)(1)(vi). No jury could find that they did not constitute a disability.

Conclusion

A properly instructed jury would not have ruled for AutoZone, and evidence suggests that this jury did so reluctantly. Failure to give the EEOC’s proposed “team” instruction confused the jury and prejudiced the EEOC. Even without the proposed instruction, the jury’s verdict was against the manifest weight of the evidence. For the reasons stated here and in the EEOC’s opening brief, the EEOC urges this Court to reverse, remand for a new trial, and remove the issue of disability from the jury.

Respectfully submitted,

P. DAVID LOPEZ /s/ Gail S. Coleman

General Counsel Attorney

EQUAL EMPLOYMENT

JENNIFER S. GOLDSTEIN OPPORTUNITY COMMISSION

Associate General Counsel Office of General Counsel

131 M Street, NE, Room 5SW24L

CAROLYN L. WHEELER Washington, DC 20507

Assistant General Counsel (202) 663-4055

gail.coleman@eeoc.gov