09-1859

TABLE OF CONTENTS

Table of Authorities............................................................................... iii

Statement of Interest............................................................................... 1

Statement of the Issues............................................................................ 2

Statement of the Case.............................................................................. 2

A. Statement of Facts................................................................... 2

B. District Court Decision.......................................................... 10

Summary of Argument.......................................................................... 13

Argument.............................................................................................. 14

A. The district court overlooked the ADA Amendments

Act of 2008............................................................................ 14

B. Adams is disabled within the meaning of the ADA................ 17

1. Adams is actually disabled............................................ 17

2. Adams is disabled because he has a record of a

disability........................................................................ 19

3. Adams is disabled because Festival Fun Parks subjected him to actionable disability harassment, thereby regarding

him as disabled.............................................................. 20

C. The district court applied the wrong standard when considering

the existence of a hostile work environment.......................... 25

D. A reasonable jury could find that Adams was constructively discharged. 27

Conclusion............................................................................................ 28

Certificate of Compliance

Certificate of Service

TABLE OF AUTHORITIES

Cases

Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002).................................... 26

Duch v. Jakubek, 588 F.3d 757 (2d Cir. 2009)...................................... 24

Farina v. Branford Bd. of Educ., 458 Fed. Appx. 13 (2d Cir. 2011)..... 21

Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 169 (5th Cir. 2001) 21

Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001)...................... 21

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)..................................... 24

Kaytor v. Elec. Boat Corp., 609 F.3d 537 (2d Cir. 2010)...................... 26

Lanman v. Johnson County, Kan., 393 F.3d 1151 (10th Cir. 2004)..... 21

Paz v. Wauconda Healthcare & Rehab. Ctr., LLC,

464 F.3d 659 (7th Cir. 2006)................................................................ 18

Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009)................................... 22

Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001)................................... 26

Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011)............. 27

Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003)...................... 21

Sherlock v. Montefiore Med. Ctr., 84 F.3d 522 (2d Cir. 1996)............... 18

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)............................ 15

Toyota Motor Mfg., Ky., Inc. v. Williams,

534 U.S. 184 (2002).............................................................................. 15

Vance v. Ball State Univ., 133 S. Ct. 2434 (2013)........................... 24, 27

Wyler v. U.S., 725 F.2d 156 (2d Cir. 1983)........................................... 18

Statutes and Rules

Americans with Disabilities Act,

42 U.S.C. §§ 12101 et seq....................................................................... 1

§ 12101(b)(1)............................................................................... 14

§ 12102(1)................................................................................... 14

§ 12102(1)(B).............................................................................. 19

§ 12102(1)(C).............................................................................. 20

§ 12102(2)(B)........................................................................ 16, 17

§ 10202(3)(A)-(B)........................................................................ 20

§ 12112(a)................................................................................... 14

Americans with Disabilities Act Amendments Act of 2008,

Pub. L. No. 110-325, 122 Stat. 3553

(codified at 42 U.S.C. § 12101 note)............................................ 1, 15-17

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq....................................................................... 1

29 C.F.R.

§ 1630.2(j)(1)(ii).......................................................................... 17

§ 1630.2(j)(1)(v).......................................................................... 19

§ 1630.2(k)(1).............................................................................. 20

§ 1630.2(k)(2).............................................................................. 19

§ 1630.2(l)(1)............................................................................... 21

29 C.F.R. Part 1630 App.

§ 1630.2(j)(1)(v).......................................................................... 18

§ 1630.2(k)............................................................................ 19, 20

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

Miscellaneous

EEOC Enforcement Guidance, Reasonable Accommodation and

Undue Hardship Under the Americans With Disabilities Act,

2002 WL 31994335......................................................................... 21-22

“Disability Discrimination & Harassment,”

http://www.eeoc.gov/laws/types/disability.cfm .................................... 21

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court in this case misinterpreted the ADA, overlooking the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553, and holding that the plaintiff is not disabled based on superseded law. The court also evaluated the existence of a hostile work environment based on an unduly crabbed interpretation of what constitutes “severe or pervasive” harassment. Given the importance of both of these issues to effective enforcement of the ADA and Title VII, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

STATEMENT OF THE ISSUES

1. Is Adams, whose learning disabilities necessitated a focus on basic life skills rather than academics, disabled within the meaning of the ADA?

2. Should the district court have focused on the totality of circumstances, including all instances of harassment, when considering the existence of a hostile work environment?

3. Could a reasonable jury find that Festival Fun Parks constructively discharged Adams by intentionally creating an intolerable work environment?

STATEMENT OF THE CASE

A. Statement of Facts

Festival Fun Parks operates the Lake Compounce Theme Park, an amusement park in Bristol, Connecticut. (R.34-1 at 56, Brick Decl. ¶ 3) In September 1996, at age 16, Andrew Adams began working at Lake Compounce as a part-time, seasonal employee. (R.36-5 at 4-5, Adams Dep. at 12-13) He returned each summer thereafter. (Id.) Initially, Adams worked as a ride attendant, but when he turned 18 he was promoted to a ride operator. (Id.) Over the next nine summers, Adams worked as a part-time ride operator, ride trainer, assistant ride coach, and housekeeping supervisor. (Id. at 5, 7, Adams Dep. at 13, 15) In 2008, he became a full-time employee at the ride mechanics shop as a mechanic helper. (Id. at 8, Adams Dep. at 16)

Adams describes himself as a “slow learner.” (Id. at 45, Adams Dep. at 105) A diagnostic assessment from 1990 notes “substantial deficiencies in verbal and non-verbal spheres, [resulting] in a composite score which was marginally within the Borderline range.” (R.34-1 at 45, Diag. Ass. ¶ 2) The assessment describes Adams as participating in a “self-contained special education program [ ] designed to meet his needs as a student with mild Mental Retardation and/or Borderline abilities.” (Id. ¶ 3)

School documents show that while other children were learning the regular curriculum, Adams was learning how to wash clothes. (R.34-1 at 47, IEP at P000164). He was mainstreamed with his peers only for art, music, physical education, and homeroom. (R.34-1 at 45, Diag. Ass. ¶ 3) In 1996, when he was in high school, his educational plan set a long-term goal of “independent living.” The plan stressed that he still needed to learn basic life skills including personal hygiene, telling time, ordering from catalogues, taking a bus, and using a phone book. (R.34-1 at 46-48, 53-54, IEP at P000163-65, P000170-71) Adams currently reads at a third or fourth grade level. (R.36-4 at 50, Adams Dep. at 112)

On his job application in 1996, Adams noted that he was a special education student and a slow learner. (Id. at 11, Adams Dep. at 21) He told his supervisors and the general manager that he has a learning disability that makes it hard for him to remember things. (Id.) He repeated this information to his new supervisors when he became a mechanic helper in 2008. “[General Manager Jerry] Brick and [immediate supervisor John] Fitch knew about my disability,” he said, “because I talked to them both about it. I told them, ‘I’m willing to learn, but it takes me time, I can’t be like the rest of the guys that can do the job real quick, I have to think about what to do before I jump in there and do it.’ And they said, ‘don’t worry about it, we’ll teach you.’” (Id. at 12-13, Adams Dep. at 24-25)

Fitch warned Adams to expect harassment. “I want to let you know that you’re going to get picked on and harassed in the shop,” he said. “That’s the nature of working in the shop. Don’t come to me with complaints every day because I don’t want to hear it. Be a man. Be tough.” (Id. at 42, Adams Dep. at 99)

Even with Fitch’s warning, the harassment was worse than Adams expected. Justin Walters, a shop mechanic, picked on Adams relentlessly. Every couple of days, whenever they were working together outside, Walters called Adams “stupid” and asked him “what are you doing, what the heck is the matter with you?” (Id. at 15, Adams Dep. at 39) When Adams needed help on some of the harder rides, he was ridiculed for seeking assistance. “Every time I call for help on the radio,” he said, “I get nothing but a lot of . . . intimidation from people saying oh my God, we got to bail Andy out again.” (Id. at 32-33, Adams Dep. at 87-88) Once, after Adams had forgotten to do something on a ride and had asked Fitch to come help him, Walters laughingly told the ride operator, “You better check your ride out real good. They had Andy and this other guy working on your ride.” (R.36-4 at 105, Andy’s Log Oct. 2009)

Walters harassed Adams for not dating women. Twice, Walters told Adams that being on his knees was his best position because he liked guys so much. (R.34-1 at 59-60, Answer to Interrog. #9) “You like to look up at the guys’ chock area all the time,” Walters said. (R.36-4 at 104, Andy’s Log Feb. 2009) Additionally, after locating his missing blow torch, Adams discovered that someone had written the word “SUCKS” in black, permanent marker next to his name. (R.36-4 at 43-44, Adams Dep. at 103-04) Coworkers egged Adams on to make sexual comments. “Because I don’t have a girlfriend,” Adams testified, “they figure you don’t have the guts to say certain things.” (R.34-1 at 26, Adams Dep. at 80) Walters stared at Adams whenever he was on his knees working on a ride, and one time he announced that he “had” Adams’s mother the previous night and she was good. (Id. at 39, Adams Dep. at 97; R.36-4 at 62, Adams Aff. ¶ 11)

Walters made Adams do his work and took credit for it. (R.36-4 at 102, Adams Ltr) He also made it more difficult for Adams to do his own job, placing large water pumps in front of Adams’s work station and blocking his toolbox. (R.34-1 at 26, Adams Dep at 80) When a coworker used a forklift to move the water pumps to Walters’s work station, Walters publicly challenged Adams and moved them back. (Id.) Walters then put the water pumps in Adams’s work station at least five more times. (R.36-4 at 43, Adams Dep. at 103) Finally, Fitch’s supervisor, Mario Abela, saw the pumps in Adams’s work station and moved them himself. At this point, Abela told Walters to “knock it off” and Walters stopped. (Id.)

Walters also threw things at Adams. He threw washers, nuts, and bolts across the shop at Adams. (Id. at 15-16, Adams Dep. at 39-40) On another occasion, when Adams was driving his personal truck to carry ride parts, Walters threw an apple at the truck and laughed when it smashed and made a mess. (Id. at 58, Adams Dep. at 169)

Adams repeatedly complained about the harassment, to no avail. In 2008, he told his immediate supervisor, John Fitch, “Justin keeps harassing me and picking on me and bullying me.” Fitch responded, “I told you before we hired you that working in the shop, you’re going to deal with being picked on and harassed, and I don’t want you coming to me and complaining to me every day.” (Id. at 21-22, Adams Dep. at 60-61)

Despite Fitch’s refusal to listen, Adams continued to report harassment. In February 2009, he told Fitch about Walters’s comment that he belonged on his knees, and Fitch just smiled and reminded him not to complain. (R.36-4 at 104, Andy’s Log Feb. 2009) He added that Adams should “‘be a man’ and be tough.” (R.36-4 at 62, Adams Aff. ¶ 10) In June, Adams showed Fitch his blow torch with the word “SUCKS” on it. He testified that Fitch “just shook his head and walked away from me. He didn’t say anything.” (R.36-4 at 43-44, Adams Dep. at 103-04) In July, Adams told Fitch that Walters was putting things in his work area (R.34-1 at 60, Answer to Interrog. # 10) and in September he told him about Walters throwing an apple at his personal truck. (Id.) Fitch said he would talk to Walters, but the harassment did not stop. (R.36-5 at 63, Adams Aff. ¶ 14) Eventually, Adams gave up. “John Fitch told me not to come to him with complaints,” he explained. “Before I [switched over to the maintenance job], he told me the rules.” (R.36-4 at 42, Adams Dep. at 99)

Adams also complained to Abela that Walters was bullying him. (Id. at 23, Adams Dep. at 62) He specifically mentioned that Walters kept calling him stupid. (Id. at 57-58, Adams Dep. at 168-69) “I told Mario basically that he constantly picks on me and bullies me every day, and was putting his stuff in my work area so I can’t get into my toolbox.” (Id. at 25, Adams Dep. at 64) Like Fitch, Abela dismissed Adams’s concerns. “Mario basically said to me . . . just try to get along with him, he likes you and he’s trying to have fun with you.” (Id.) Adams told Abela that this did not seem fair, and Abela responded, “Basically, he’s trying to be your friend. It’s not like you go home with him every night, so try to work with him.” (Id.)

Finally, Adams complained to Mike Hayes and Mary Anne Dudek in Human Resources that Walters was constantly picking on him and bullying him. (Id. at 54, Adams Dep. at 129; R. 36-4 at 62-63, Adams Aff. ¶ 12) Dudek said, “I understand, I know it’s hard in the shop. I knew you were going to have some issues like that in the shop, but I didn’t think it would get that bad for you.” (R.36-4 at 54, Adams Dep. at 129) She asked Adams whether he had complained to Fitch and Abela. When he described their lack of interest, “she shook her head at me and said, ‘I’m sorry.’” (Id.) Like Fitch, Abela, and Hayes, Dudek did nothing to stop the harassment.

Adams testified that in addition to permitting the harassment, Festival Fun Parks discriminated against him with respect to training and pay. When Adams was still operating rides, other employees were taught to operate complicated equipment but Adams was not offered the training classes and was “stuck” on the “kiddie rides.” (Id. at 52, Adams Dep. at 124) Later, when Adams became a mechanic helper, he ended up doing the work of an actual mechanic while being paid at a lower rate. (Id.) “As a helper,” he explained, “you’re supposed to go with someone and be their right hand man with them. That didn’t happen with me.” (Id.) Adams complained to General Manager Jerry Brick that he was being paid unfairly, and Brick told him to be happy that he had received a raise. Adams later learned from Abela that everyone had received a raise. (Id. at 53, Adams Dep. at 126)

By late September 2009, Adams felt that working conditions had become intolerable. (R.34-1 at 29-30, Adams Dep. at 87-88) He told Fitch that he would be giving notice soon because the harassment was continuing and he was having a hard time. “I feel I can’t do the job,” he said. “Everybody picks on me.” (Id. at 29, Adams Dep. at 87) Fitch advised him to use his vacation time immediately so he would not lose it, and Adams took two weeks off. (Id. at 30, Adams Dep. at 88)

When he returned to work, Brick said he had already told corporate that Adams would be leaving and that Adams needed to provide a departure date. (Id. at 30-31, Adams Dep. at 88-89) Adams said that he did not want to leave Festival Fun Parks, he only wanted to get away from the mechanic shop (and the harassment), and asked whether he could be transferred to the paint department. (R.36-4 at 63, Adams Aff. ¶ 17) Brick said the paint department had no openings and that he had nothing else available for Adams at that time. (Id. at 64, Adams Aff. ¶ 23) Brick added that if Adams could not find another job, he would not contest an application for unemployment compensation. (Id.) Abela then selected October 31, the end of the season, as Adams’s last day. (R.34-1 at 30, Adams Dep. at 88)

Adams testified that he did not leave Festival Fun Parks voluntarily. “I feel I was terminated,” he testified, “because of . . . them not finding [anything] else in the park for me to do, and me being picked on, nobody was doing anything about it. So I felt like I was being forced out of there.” (Id. at 32-33, Adams Dep. at 90-91) He concluded, “[I lost] my job, the place I loved to go to, to work, every day. [I] would have been there until the day I retired. Being picked on, bullied every day, and just felt like after awhile I didn’t want to be there [anymore] and I couldn’t find a job that I liked doing.” (R.36-4 at 55, Adams Dep. at 163)

B. District Court Decision

The district court granted summary judgment to Festival Fun Parks on Adams’s claims of disability discrimination, gender discrimination, and constructive discharge.[1] With respect to the disability claims, the district court applied pre-ADAAA law and did not acknowledge that Congress substantially changed the law in 2008. Relying on old and superseded precedent, the court held that Adams was not disabled within the meaning of the ADA. The court rejected Adams’s documented evidence of his disability as inadmissible and held that his own, “self-serving testimony” was insufficient to show that he was “substantially limited in his ability to perform a class or broad range of jobs.” (R.47, Slip Op. at 9 (emphasis in original)) The court also held that Adams could not show that Festival Fun Parks regarded him as being disabled. (Id. at 10) “Adams did not show [his supervisors] any medical reports assessing him as mentally disabled,” the court said. (Id. at 10-11) Nor can he show that his coworkers regarded him as disabled, the court added. “[A] reasonable jury could not find that calling someone ‘stupid,’ without anything more, was evidence that the speaker perceived that person to be mentally impaired so as to substantially limit that person’s exercise of a major life activity.” (Id. at 11)

The district court assumed arguendo that a reasonable jury could find that Adams was subjected to gender stereotyping (Id. at 22 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989)) but rejected his sexual harassment claim for two reasons. First, it said, no reasonable fact finder could conclude that the work environment was objectively hostile based on Adams’s gender. The only incidents that could be construed as sexual in nature, the court said, were Walters’s comment about Adams being on his knees and Adams’s testimony that Walters would stare him down while he worked on his knees. Those two incidents, the court said, were insufficient to suggest that other, facially sex-neutral incidents were part of a pattern of sexual harassment. (Id. at 16-17) Second, the court held, even if the record would support a conclusion that Adams faced a hostile work environment, there is no basis to impute the harassment to Festival Fun Parks. (Id. at 18) Adams did not specifically tell Fitch that he was being sexually harassed, the court said, and did not identify any of the harassment as sexual in nature. (Id. at 18-19) And when Adams complained to Abela, the court erroneously said, the complaint was effective and the harassment stopped. (Id. at 20)

The court also rejected Adams’s constructive discharge claim. “A reasonable juror could not find,” the court said, “that the working conditions at Festival Fun Parks were ‘so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’” (Id. at 23-24) Moreover, the court said, no reasonable juror could find that Festival Fun Parks deliberately sought to force Adams to resign, particularly as Adams never specifically complained about sexual harassment and because when he went to Abela [about blocking his work station with water pumps], Abela successfully made Walters “knock it off.” (Id. at 25)

SUMMARY OF ARGUMENT

The district court applied outdated law in mistakenly holding that Adams is not disabled within the meaning of the ADA. Congress amended the ADA in 2008 for the express purpose of making it easier for plaintiffs to prove that they are disabled. The focus of an ADA case, Congress said, should be on whether the employer has discriminated, not on whether a plaintiff can prove statutory coverage. By ignoring the amendments and applying pre-2008 law, the district court looked at Adams’s impairments through too restrictive a lens. Properly analyzed, Adams is disabled under the ADA because he is actually disabled, because he has a record of a disability, and because Festival Fun Parks regarded him as disabled.

The district court also erred by parsing out various insults into separate categories for purposes of proving a hostile work environment. Whether an employer is motivated by gender stereotypes, disability animus, or some combination of both, all instances of harassment may be relevant in determining whether harassment is severe or pervasive. A reasonable jury could find that Adams was harassed both because of his disability and because of gender stereotypes. Considering all of the evidence together, a jury could conclude that Adams’s work environment violated his rights under both the ADA and Title VII.

ARGUMENT

A. The district court overlooked the ADA Amendments Act of 2008.

As originally enacted twenty-three years ago, the ADA was intended “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Among other things, the statute prohibited employers from discriminating against a “qualified individual with a disability” because of that individual’s disability. Id. § 12112(a). The term “disability” was defined to mean: “[1] a physical or mental impairment that substantially limits one or more of the major life activities of such individual, [2] a record of such an impairment, or [3] being regarded as having such an impairment.” Id. § 12102(1).

Over the next two decades, as plaintiffs filed lawsuits and courts interpreted the statutory language, it became harder and harder for plaintiffs to show that they were among the group of people protected by the ADA. Courts imposed stringent requirements for individuals to show that they were “substantially limited” in a “major life activity.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196-98 (2002). Even when an individual’s impairment was admittedly the basis for an employment decision, courts required plaintiffs who sought coverage based on the “regarded as” prong of the disability definition to prove the employer’s perception of their limitations. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-91 (1999).

With the ADAAA of 2008, Congress asserted its intention “to restore the intent and protections of the Americans with Disabilities Act of 1990.” Pub. L. No. 110-325, preamble, 122 Stat. 3553 (2008) (codified at 42 U.S.C. § 12101 note). Congress explained that it had “expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, [but] that expectation has not been fulfilled.”

Id. § 2(a)(3). Criticizing the Supreme Court for “eliminating protection for many individuals whom Congress intended to protect,” id. § 2(a)(4), Congress expressly repudiated the holdings of Sutton and Toyota Motor Manufacturing. Id. §§ 2(a)(4)-(7).

Congress declared that a purpose of the ADAAA was to “reinstat[e] a broad scope of protection to be available under the ADA.” Id. § 2(b)(1). Explaining that previous judicial decisions had made it too difficult for individuals to prove coverage, id. § 2(b)(4)-(5), Congress stated that “it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Id. § 2(b)(5).

With respect to the first prong of the disability definition (actual disability), Congress specifically added “the operation of a major bodily function,” including the brain, to the statute’s non-exhaustive list of “major life activities.” 42 U.S.C. § 12102(2)(B). Congress also singled out the third prong of the definition (regarded as) as demanding a “broad view.” Pub. L. No. 110-325, preamble § 2(b)(3) (codified at 42 U.S.C. § 12101 note).

The district court in the instant case did not acknowledge that the ADAAA envisions “broad coverage” that would allow courts to reach beyond coverage to the merits of employment decisions. The court erroneously held that Adams was not actually disabled under the ADAAA, ignoring relevant statutory language to the contrary. (R.47, Slip Op. at 9) The court also over-complicated the question of whether Festival Fun Parks regarded Adams as disabled, clinging to a no-longer-relevant assessment of whether the employer regarded him as “substantially limited in a major life activity.” (Id. at 10) Finally, the court did not address the straightforward question of whether Adams has a record of a disability. On each of these separate bases, Adams qualifies as disabled within the meaning of the ADAAA.

B. Adams is disabled within the meaning of the ADA.

1. Adams is actually disabled.

Adams is disabled under the ADAAA because his brain processes information much more slowly than the average person’s brain. See 42 U.S.C. § 12102(2)(B) (major life activity includes operation of the brain); 29 C.F.R. § 1630.2(j)(1)(ii) (“an impairment is a disability within the meaning of this section if it substantially limits the ability of a person to perform a major life activity as compared to most people in the general population”). Adams testified that he has a learning disability which makes it hard for him to remember things. (R.36-4 at 11, Adams Dep. at 21) Unlike other individuals, he said, he cannot do jobs quickly; he must stop and think about each step first. (Id. at 12-13, Adams Dep. at 24-25) Although he is an adult, he reads at a third or fourth grade level.[2] (Id. at 50, Adams Dep. at 112) These limitations are sufficient to satisfy the ADAAA. See 29 C.F.R. Part 1630 App. § 1630.2(j)(1)(v) (“individuals diagnosed with . . . learning disabilities will typically be substantially limited in performing activities such as learning, reading, and thinking when compared to most people in the general population”).

Adams’s sworn deposition testimony, which consists of factual statements based on personal knowledge rather than self-serving assumptions, is sufficient by itself to raise a genuine issue of material fact. Compare Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996) (party’s affidavit regarding date she received letter sufficient to raise genuine issue of material fact) with Wyler v. U.S., 725 F.2d 156, 158 (2d Cir. 1983) (not crediting an affidavit that was “limited to general conclusory averments”); see also Paz v. Wauconda Healthcare & Rehab. Ctr., LLC, 464 F.3d 659, 664 (7th Cir. 2006) (“We have long held that a plaintiff may defeat summary judgment with his or her own deposition.”).

In any event, Adams’s testimony is corroborated by school records showing that he was a special education student whose primary goal upon graduation was “independent living.” (R.34-1 at 46, IEP at P000163) Contrary to the district court’s belief (R.47, Slip Op. at 8-9), no medical evidence is required to prove actual disability. 29 C.F.R. § 1630.2(j)(1)(v) (proof of disability “usually will not require scientific, medical, or statistical analysis”). Together, Adams’s testimony and his school records are more than enough for him to survive summary judgment.

2. Adams is disabled because he has a record of a disability.

Adams is disabled under the ADAAA because he has a record of a disability. See 42 U.S.C. § 12102(1)(B). “Whether an individual has a record of an impairment that substantially limited a major life activity shall be construed broadly to the maximum extent permitted by the ADA and should not demand extensive analysis. 29 C.F.R. § 1630.2(k)(2). Adams’s educational records suffice. See 29 C.F.R. Part 1630 App. § 1630.2(k) (educational records may establish record of disability). These records state that Adams was a special education student who was mainstreamed only for art, music, physical education, and homeroom. (R.34-1 at 45, Diag. Ass. ¶ 3) While other children participated in the regular school curriculum, they state, Adams learned to wash clothes. (R.34-1 at 47, IEP at P000164) As late as high school, the records report, his teachers were still coaching him to tell time. (Id.)

The district court wrongly excluded Adams’s diagnostic assessment as hearsay. (R.47, Slip Op. at 8) The hearsay objection is relevant only when an unsworn item is offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c)(2). Even if Adams’s diagnostic assessment was completely wrong, its very existence makes Adams disabled within the meaning of the ADAAA.[3] 29 C.F.R. § 1630.2(k)(1) (“an individual has a record of a disability if the individual . . . has been misclassified as having[ ] a mental or physical impairment that substantially limits one or more major life activities).

3. Adams is disabled because Festival Fun Parks subjected him to actionable disability harassment, thereby regarding him as disabled.

Adams is disabled under the ADAAA because Festival Fun Parks regarded him as disabled. See 42 U.S.C. § 12102(1)(C). An employer regards an employee as disabled whenever it takes a prohibited employment action because of the employee’s covered physical or mental impairment. Id. § 12102(3)(A)-(B). Since creating or tolerating actionable harassment is a prohibited employment action, that tolerance is sufficient to establish regarded as liability under the ADAAA. Contrary to the district court’s analysis (R.47, Slip Op. at 10), it is no longer necessary for regarded as liability that the employer perceive an impairment to substantially limit a major life activity. 29 C.F.R. § 1630.2(l)(1).

A reasonable jury could find that Festival Fun Parks subjected Adams to actionable harassment because of his learning/memory impairment. Although this Court has not yet recognized the viability of a disability harassment claim, see Farina v. Branford Bd. of Educ., 458 Fed. Appx. 13 (2d Cir. 2011), every court of appeals to rule on the issue has held that such claims are actionable. See Lanman v. Johnson County, Kan., 393 F.3d 1151, 1155-56 (10th Cir. 2004); Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003); Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001); Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229 (5th Cir. 2001). The EEOC agrees with these courts. See “Disability Discrimination & Harassment,” http://www.eeoc.gov/laws/types/disability.cfm (“It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory . . . and minor . . . .”); see also EEOC Enforcement Guidance, Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, 2002 WL 31994335, at Answer # 33 (Oct. 17, 2002) (“an employee with a disability is protected from disability-based discrimination . . . including disability-based harassment”).

If Walters harassed Adams because he believed that Adams had a non-transitory, non-minor mental impairment, the harassment could be sufficient to constitute a prohibited employment action under the ADA. To be actionable, of course, the harassment would have to be (1) unwelcome, (2) because of Adams’s disability, (3) sufficiently severe or pervasive to alter the conditions of employment, and (4) imputable to Festival Fun Parks. See Pueschel v. Peters, 577 F.3d 558, 564-65 (4th Cir. 2009) (elements of hostile work environment claim are the same for disability harassment as for gender harassment).

The evidence would permit a reasonable fact finder to conclude that Adams has satisfied the elements of a disability-based hostile environment claim. The conduct was clearly unwelcome, as Adams complained about it repeatedly to multiple people. (R.36-4 at 21-24, Adams Dep. at 60-63) Much of the conduct was expressly based on Adams’s learning impairment, as Walters constantly called Adams stupid and asked him every other day, “what the heck is the matter with you?” (Id. at 15, Adams Dep. at 39) Walters also ridiculed Adams for seeking help and told a ride operator that his ride might be unsafe because Adams had worked on it. (R.36-4 at 105, Andy’s Log Oct. 2009) A reasonable jury could determine that these taunts were because of Adams’s slow learning style and were therefore directly tied to his learning impairment.

A reasonable fact finder could also conclude that the harassment was sufficiently severe or pervasive to alter Adams’s conditions of employment. Adams was singled out among all his coworkers for almost daily abuse. (R.34-1 at 32, Adams Dep. at 90) Walters ridiculed him to his face and demeaned him to other employees. Walters also threw things at him, blocked his access to his tools, and then took credit for the work Adams had done. (R.36-4 at 15-16, 43, 58, Adams Dep. at 39-40, 103, 169; R.36-4 at 102, Adams Ltr; R.36-4 at 105, Andy’s Log Oct. 2009; R.34-1 at 26, Adams Dep. at 80.) Coworkers complained about having to “bail Andy out again” when he asked for their help. (R.36-4 at 32-33, Adams Dep. at 87-88) Throughout all of this, Adams was paid less than his colleagues and told he should be glad he got a raise when raises were given out to everyone. (Id. at 53, Adams Dep. at 126) The pervasive hostility affected Adams so badly that he ended up leaving a job he otherwise loved. (Id. at 55, Adams Dep. at 163)

The hostility would have affected any reasonable employee. As the Supreme Court has recognized, “A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993).

Finally, a jury could find that Festival Fun Parks knew or should have known about the harassment but did nothing to stop it. The Supreme Court recently recognized that an employer can be negligent (and therefore liable) by not “monitor[ing] the workplace, fail[ing] to respond to complaints, fail[ing] to provide a system for registering complaints, or effectively discourag[ing] complaints from being filed.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2453 (2013); see also Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (employer may be liable if it knew, or in the exercise of reasonable care should have known, about the harassment but did not take appropriate remedial action). A jury could conclude that Festival Fun Parks was negligent because it failed in all of these ways.

The record is devoid of evidence that Festival Fun Parks had any complaint mechanism. To the contrary, it appears that Festival Fun Parks actively discouraged complaints. Fitch warned Adams even before he began working in the mechanic shop that he was likely to be harassed and that he should not complain about it. (R.36-4 at 42, Adams Dep. at 99) When Adams later told his supervisors that Walters frequently called him “stupid” and picked on him daily, they refused to intervene. (Id. at 25, 42, Adams Dep. at 64, 99) Far from elevating his complaints to a higher level of authority, Fitch told Adams to stop complaining and Abela told him, “just try to get along with [Walters], he likes you and he’s trying to have fun with you.” (Id.)

Even when Adams went on his own to the Human Resources department, he was told that the harassment was not unexpected. Dudek told him, “I knew you were going to have some issues like that in the shop.” (Id. at 54, Adams Dep. at 129) Her premonition, however, did not lead her to monitor the shop or even to warn Adams’s coworkers about engaging in inappropriate conduct. Nor did Fitch, who also anticipated that Adams would be harassed (id. at 42, Adams Dep. at 99), do anything to protect him and provide him with a nondiscriminatory work environment. A jury could conclude that Festival Fun Parks knew or should have known about the harassment but allowed it to continue unchecked.

C. The district court applied the wrong standard when considering the existence of a hostile work environment.

The district court assumed arguendo that a reasonable jury could find that Adams was subjected to gender stereotypes. (R.47, Slip Op. at 22 (citing Price Waterhouse, 490 U.S. at 235)) A jury could also find, based on the specific insults that Walters used, that Adams was harassed based on his disability. Regardless of whether Walters was motivated by gender stereotyping, disability animus, or both, the district court erred by separating the instances of harassment into “gender harassment” and “disability harassment.” A harasser who feels animosity towards his victim may choose any number of ways to denigrate him. Trying to separate out which instances are motivated by disability animus and which are motivated by gender stereotyping is artificial and, in any event, best left to a jury.

Animus can motivate even seemingly neutral conduct. Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002); see also Kaytor v. Elec. Boat Corp., 609 F.3d 537, 548 (2d Cir. 2010) (if evidence permits inference that facially gender-neutral incidents were motivated by gender, “ultimate question of whether such abuse was ‘because of’ the plaintiff’s gender is a question of fact for the fact finder”); Raniola v. Bratton, 243 F.3d 610, 621-23 (2d Cir. 2001) (proof of supervisor’s overt gender hostility would support finding that his facially gender-neutral hostility was also gender based). Harassment that specifically mentions disability may be motivated at least in part by animus based on gender stereotyping, and vice versa.

A reasonable jury could find that, taken together, the many instances of harassment in this case created a hostile work environment. Because animus can pervade even seemingly neutral conduct, it should be left to a jury to determine whether any or all of the harassment stemmed from disability animus and/or gender stereotyping.

D. A reasonable jury could find that Adams was constructively discharged.

Constructive discharge occurs when an employer, rather than directly firing an employee, “intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily.” Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 185 (2d Cir. 2011). A jury could conclude that this is exactly what Festival Fun Parks did.

Even knowing that Adams would probably be harassed in the mechanic shop, the Human Resources department did nothing to protect him in advance or to remedy the harassment once it was underway. Fitch and Abela, Adams’s supervisors, knew about the harassment – Fitch even predicted it in advance – but they told him to stop complaining and did not elevate his complaints to higher-ranking supervisors. Festival Fun Parks had no reporting policy that would have required them to do so. See Vance, 133 S. Ct. at 2453 (employer may be liable for “fail[ing] to provide a system for registering complaints”).

Contrary to the district court’s understanding (R.47, Slip Op. at 25), the harassment continued until the day Adams left. (R.34-1 at 29, Adams Dep. at 87) Adams gave up all hope of seeking help from Fitch, who told him to stop bothering him with complaints (R.36-4 at 21-22, Adams Dep. at 60-61), from Abela, who told him to try harder to get along with Walters (id. at 25, Adams Dep. at 64), or from Human Resources, which expressed sympathy but did nothing. (id. at 54, Adams Dep. at 129)

A reasonable person in Adams’s position could understandably feel that nothing was going to improve. Adams tried time after time to make the harassment stop and/or to get away from his harasser, but Festival Fun Parks refused to intervene. Adams was reluctant to leave Festival Fun Parks despite the harassment because he loved his job and had hoped to retire from there, but ultimately he felt that he had no choice. (Id. at 55, Adams Dep. at 163) A reasonable jury could agree with him.

CONCLUSION

The district court evaluated this case under the wrong legal standards. It ignored critical amendments to the ADA and separated evidence into legally unsupportable categories. A reasonable jury could find that Adams is disabled, that he was subjected to an unlawful hostile work environment based on his disability and/or gender stereotypes, and that he was constructively discharged.

CONCLUSION

For the reasons stated above, the EEOC respectfully asks this Court to reverse the award of summary judgment and to remand for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

CAROLYN L. WHEELER

Assistant General Counsel

/s Gail S. Coleman

____________________________

GAIL S. COLEMAN

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] The district court also granted summary judgment to Festival Fun Parks on Adams’s claim that the defendant retaliated against him by not transferring him to the paint department.

[2] The district court wrongly said that Adams read at a third or fourth grade level when he was in fifth grade. (R.47, Slip Op. at 6) Actually, he reads at that level today. (R.36-4 at 50, Adams Dep. at 112)

[3] In order to establish liability on this basis, of course, Adams would have to show that Festival Fun Parks discriminated against him because of the record of disability. 29 C.F.R. Part 1630 App. § 1630.2(k).