Table of Contents

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

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

Statement of the Issues....................................................................................... 1

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

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

B. District Court Opinion.............................................................................. 8

Summary of Argument..................................................................................... 11

Argument......................................................................................................... 12

A. The district court wrongly granted summary judgment on Garrison’s disability discrimination claim........................................................................... 12

1. An employer’s failure to accommodate a known disability is independently actionable under the ADA. No additional “adverse action” is required. 12

2. Whether Garrison adequately requested a reasonable accommodation is a genuine issue of material fact..................................................................... 17

3. Whether the accommodation Garrison sought was reasonable is a genuine issue of material fact.................................................................................. 21

B. The district court applied the wrong legal standard to assess whether Garrison was subjected to an “adverse action” for purposes of her retaliation claim... 23

Conclusion....................................................................................................... 26

Certificates of Counsel

Table of Authorities

Cases

Amir v. St. Louis Univ., 184 F.3d 1017 (8th Cir. 1999)....................................... 25

Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996)................................ 24

Buboltz v. Residential Advantages, Inc., 523 F.3d 864 (8th Cir. 2008)................ 14

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006)....................... 2, 23-26

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)..... 14

Dick v. Dickinson State Univ., 826 F.3d 1054 (8th Cir. 2016)............................. 15

EEOC v. Convergys Customer Mgmt. Grp., 491 F.3d 790

(8th Cir. 2007)........................................................................................ 9, 17, 18

Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707 (8th Cir. 2003)........... 16-17

Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944 (8th Cir. 1999)................. 18, 21

Green v. Brennan, 136 S. Ct. 1769 (2016)......................................................... 14

Hatchett v. Philander Smith Coll., 251 F.3d 670 (8th Cir. 2001)......................... 22

Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998)...................... 20

Hill v. City of Pine Bluff, 696 F.3d 709 (8th Cir. 2012)....................................... 25

Hill v. Walker, 737 F.3d 1209 (8th Cir. 2013).................................................... 25

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562

(4th Cir. 2015).................................................................................................. 15

Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624 (8th Cir. 2016).................... 16-17

Kobus v. Coll. of St. Scholastica, Inc., 608 F.3d 1034 (8th Cir. 2010)................. 19

Kowitz v. Trinity Health, 839 F.3d 742 (8th Cir. 2016)................................. 18, 19

Lee v. District of Columbia, 920 F. Supp. 2d 127 (D.D.C. 2013)........................ 20

Manning v. Metro. Life Ins. Co., 127 F.3d 686 (8th Cir. 1997)............................ 24

McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92 (2d Cir. 2009)............. 15

Mershon v. St. Louis Univ., 442 F.3d 1069 (8th Cir. 2006)............................. 1, 15

Miller v. Nat’l Cas. Co., 61 F.3d 627 (8th Cir. 1995).................................... 18-19

Peebles v. Potter, 354 F.3d 761 (8th Cir. 2004)........................................ 1, 15, 16

Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006)......................................... 24

Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899 (8th Cir. 2015)..... 8, 16-17

Smith v. Midland Brake, Inc., 180 F.3d 1156 (10th Cir. 1999) (en banc)............. 15

Smith v. World Ins. Co., 38 F.3d 1456 (8th Cir. 1994)........................................ 14

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999)............................ 20

U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002)............................................. 13

Voeltz v. Arctic Cat, Inc., 406 F.3d 1047 (8th Cir. 2005).................................... 15

Statutes

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq................................. 1

§ 12112(a).............................................................................................. 12

§ 12112(b)(1)......................................................................................... 13

§ 12112(b)(4)......................................................................................... 13

§ 12112(b)(5)(A)................................................................................ 1, 12

§ 12116.................................................................................................. 14

Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq................................ 2, 4

§ 2612(a)(1)........................................................................................... 22

Rules and Regulations

29 C.F.R. § 825.702(a)..................................................................................... 22

29 C.F.R. § 825.702(b)..................................................................................... 22

29 C.F.R. § 1630.2(o)....................................................................................... 13

29 C.F.R. § 1630.9......................................................................................... 1, 4

29 C.F.R. pt. 1630 App. § 1630.2(o)............................................................ 13, 14

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

Other Authority

EEOC Enforcement Guidance: Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act, 2002 WL 31994335

(Oct. 17, 2002)........................................................................... 13, 17, 18, 20, 22

EEOC Enforcement Guidance on Retaliation and Related Issues,

2016 WL 4688886 (Aug. 25, 2016)..................................................................... 1

Megan I. Brennan, Need I Prove More: Why an Adverse Employment

Action Prong Has No Place in a Failure to Accommodate Disability Claim,

36 Hamline L. Rev. 497 (Summer 2013)........................................................... 16

Tory L. Lucas, Disabling Complexity: The Americans with Disabilities Act of 1990 and Its Interaction with Other Federal Laws, 38 Creighton L. Rev. 871

(June 2005)...................................................................................................... 22

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. This appeal presents important and recurring issues, including whether an employer’s failure to provide a reasonable accommodation for a known disability is, standing alone, actionable under the ADA, and what is the proper standard for finding an adverse action in the retaliation context. The EEOC has promulgated regulations and issued guidance on these issues. 29 C.F.R. § 1630.9; EEOC Enforcement Guidance on Retaliation and Related Issues, 2016 WL 4688886 (Aug. 25, 2016). Accordingly, the EEOC offers its views to the Court pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

Statement of the Issues[1]

1. The ADA, 42 U.S.C. § 12112(b)(5)(A), expressly defines “discrimination” to include the failure to accommodate an employee’s known disability. Is an employer’s failure to accommodate such a disability therefore actionable under the ADA without requiring an additional “adverse action”? See Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004); Mershon v. St. Louis Univ., 442 F.3d 1069, 1077 n.5 (8th Cir. 2006).

2. Could a reasonable jury find that Garrison adequately requested a reasonable accommodation where her supervisor knew that she sought paid “vacation” time following a hospitalization to deal with ongoing disability-related health issues?

3. Could a reasonable jury find that a short period of leave would have been a reasonable accommodation under the ADA where Garrison’s supervisor testified that if Garrison had been entitled to leave under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq., the supervisor would have found a way to make it work?

4. Did the district court err by overlooking Supreme Court precedent defining an adverse action more expansively in the context of a retaliation claim than in the context of a substantive discrimination claim? See Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006).

Statement of the Case

A. Statement of Facts

Rochelle Garrison was a full-time lead sales associate at a Dollar General store in Concordia, Missouri. (AA 184, 232)[2] She was one of four employees with keys to the store; the other “key holders” were store manager Sandra Bell, assistant manager Deanne Embry, and part-time sales associate Rhonda Ochilschilaeger. (AA 184-85)

Garrison struggles with anxiety, depression, and migraine headaches. (AA 189, 192) When these conditions required her to miss work, she would call Bell, her supervisor, and explain what was happening. (AA 186, 196) Bell testified that she, too, suffers from migraines and depression, and that she understood the severity of these conditions. (AA 215)

In early May 2014, Garrison’s doctor recommended that she take a few weeks off work and said that he could provide a note if necessary. (AA 188, 233) Garrison texted Bell that day to ask how she could request a leave of absence. (AA 198) Bell testified that she knew Garrison wanted leave to figure out what was wrong with her, and that Garrison had raised the leave issue as soon as her doctor had recommended it. (AA 208, 210) Bell responded that she was not sure about the process for requesting leave but would check with Charles Coppenbarger, Jr., the district manager. (AA 198) Bell contacted Coppenbarger and explained Garrison’s request and her doctor’s recommendations, but Coppenbarger responded that “there was no leave of absence.” (AA 208-09)

After Garrison did not hear from Bell for two days, she texted her again to follow up, but Bell did not respond. Garrison did, however, hear from Embry that Bell was saying Garrison was going to quit. (AA 190) Garrison then texted Bell, “Why are you telling everyone I am quitting?” (AA 190, 198) Bell did not respond to this text, either. (AA 199) The following day, Garrison texted Bell once again, asking if Bell had spoken with Coppenbarger. Bell responded, “Yeah, and there is no leave of absence.” (AA 199)

Seeking to get time off one way or another, Garrison asked Bell whether she could take leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. (AA 199, 212) When Bell did not respond, Garrison texted her again, asking, “Do you not want me there anymore?” (AA 199) Bell replied, “Read the employee handbook. I want [you] there if you can do the job and not be sick all the time.” (AA 199) Bell testified that she meant by this statement that “[s]he’s got to be able to perform her job when she’s at work and she has got to show up for work when she’s supposed to be there.” (AA 211) It was “frustrating,” Bell said, that Garrison “always has headaches,” and it was “aggravating” that she was requesting leave at a time when Bell herself was about to go on vacation. (AA 211)

Garrison texted Bell that she might need to have brain scans, as well as a mammogram for a lump in her breast. She noted that she hardly ever called in sick. (AA 199) Bell replied that Garrison should come to the office the following day so they could talk. (AA 199) When they met in person the next day, Garrison said that she was seeking leave because of her worsening migraines, anxiety, and depression. (AA 187, 233) She told Bell that she could provide a doctor’s note if necessary and asked whether she should do so, but Bell said she did not need a note. (AA 187, 189, 200) Based on Bell’s representation, Garrison did not request a note from her doctor or provide Dollar General with medical documentation to support her leave request. (AA 189, 200)

Dollar General teaches managers that they should be able to discuss specific forms of leave with employees, (AA 261-62), even though its employee manual requires employees to contact the company’s third-party leave administrator, Matrix Absence Management. (AA 110) Notwithstanding this training, Bell erroneously told Garrison that the FMLA covers only illnesses of family members, not of the requesting employee. (AA 187-88, 191, 199) Garrison testified that Bell never told her to call Dolgencorp’s human resources department or third-party leave administrator to confirm this understanding. (AA 233-34) She added that she trusted Bell because Bell was her boss. (AA 191)

Bell was concerned that Garrison was seeking leave at a time when two key holders (Bell and Embry) were already scheduled to be out. (AA 218-19) She told Garrison that if Garrison could not do her job, she could not remain in her position of “key lead.” (AA 213, 220) Either she worked her scheduled shifts, Bell said, or Bell would demote her to part-time status and take away her key when she returned from vacation. (AA 193, 213) Bell testified later, however, that she would have taken a different course of action if Garrison had qualified for FMLA leave: “I will protect her job as long as she’s still with us if she’s got FMLA.” (AA 229)

Garrison testified that Bell also told her she had already hired Garrison’s replacement. (AA 194) Bell denied having hired a replacement and having told Garrison that she had done so. (AA 99) However, earlier on the day that she denied Garrison leave, Bell had interviewed and hired Sean Hamblen. Bell claims that she hired Hamblen to replace Ochilschilaeger, but Ochilschilaeger never left her job, and Hamblen replaced Garrison when Garrison ultimately resigned. (AA 213, 224-25, 230)

The Monday after Bell denied Garrison’s leave request, Garrison had an anxiety attack and went to the emergency room. (AA 216) Bell allowed Garrison to use two days of paid vacation time to recover. (AA 216, 220) She knew when she granted the vacation time that Garrison was using it in connection with the emergency room visit. (AA 220)

Believing that vacation leave was her only option for time off, Garrison asked if she could take vacation for the remainder of the week as well. (AA 235) Bell testified that she said no, even though she knew that Garrison was seeking leave because of continuing issues with anxiety, depression, and headaches. (AA 220) But see (AA 223) (contradicting herself).

According to Bell, she denied the leave because Garrison had not specifically said she needed it because of her disabilities. (AA 223) “She asked for a vacation,” Bell testified, “she did not ask for leave.” (AA 223); see also id. (“[S]he asked for leave before, but she didn’t say that she needed to take that week off because of the leave. She wanted to take it off for vacation.”); (AA 99) (“[S]he specifically asked to use vacation days.”). Bell added that Garrison was asking for vacation at a time when two other key holders would also be on vacation, and that she was concerned about staffing. (AA 99, 220)

The day after Bell denied her leave, Garrison texted, “I am going to have to quit. I can’t do this anymore. My mind is going a hundred different ways. Please don’t be mad but I have to get better and I’m just getting worse again. I’m sorry.” (AA 223)

Bell testified that even after receiving Garrison’s text, she continued to believe that Garrison was requesting time off for a vacation rather than to recover from her recent hospitalization. (AA 223) She acknowledged, however, that she knew Garrison’s health was getting worse. (AA 223-24) Regardless of whether Garrison was calling it a “vacation,” she testified, she knew that Garrison needed time off to deal with ongoing health issues. (AA 224)

Garrison sued Dolgencorp for violations of the ADA, FMLA, and state law. (AA 11, 13, 14) She alleged under the ADA that Dolgencorp had failed to accommodate her disabilities and had retaliated against her by demoting and constructively discharging her. (AA 13) Dolgencorp moved for summary judgment. (AA 34)

B. District Court Opinion

The district court granted summary judgment for Dolgencorp. (AA 322) It held that “[t]o state a failure to accommodate claim under the ADA, the plaintiff ‘must establish both a prima facie case of discrimination based on her disability and a failure to accommodate it.’” (AA 333-34) (quoting Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 905 (8th Cir. 2015)). “To establish a prima facie case of ADA discrimination based on disability,” the court said, “the plaintiff must show: (1) a qualifying disability; (2) qualifications to perform the essential functions of her position with or without a reasonable accommodation; and (3) an adverse employment action due to her disability.” (AA 334) (citing Norman v. Union Pac. R.R., 606 F.3d 455, 459 (8th Cir. 2010)).

Garrison, the court held, could not establish a prima facie case because she could not show an adverse employment action. (AA 335) “An adverse employment action is one that causes a material change in the terms or conditions of employment,” it said. (AA 335) (citing Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045 (8th Cir. 2002)). The court acknowledged that a constructive discharge would qualify as an adverse employment action, but rejected Garrison’s contention that she was constructively discharged. (AA 335) “[A] reasonable person would not find Garrison’s working conditions intolerable.” (AA 336)

The court also held that Garrison was not constructively discharged because she “did not give Bell a reasonable chance to address her desire to take vacation, nor did she attempt to negotiate an alternative solution.” (AA 336) According to the court, Bell went over the employee handbook with Garrison and instructed her to ask human resources whether she qualified for FMLA leave. (AA 325) It added that the employee handbook directs employees to contact Matrix, the third-party leave administrator, with leave requests. (AA 323) Garrison, the court observed, contacted neither human resources nor Matrix. (AA 326)

In the alternative, the court held that Garrison had not requested a reasonable accommodation. (AA 337-39) “The employee must initiate the accommodation process by making the employer aware of the need for an accommodation,” it said, “and provide relevant details of the employee’s disability including the reasons that the disability requires the requested accommodation.” (AA 337) (citing Peyton v. Fred’s Stores of Ark., 561 F.3d 900, 903 (8th Cir. 2009); EEOC v. Convergys Customer Mgmt. Grp., 491 F.3d 790, 795 (8th Cir. 2007)). The court rejected Garrison’s argument that her text messages to Bell requesting leave constituted valid accommodation requests because none of the messages provided “relevant details about her disability and the reason that the disability required a leave of absence.” (AA 337) Her reference to a lump in her breast was unrelated to her headaches, anxiety, and depression, the court stated, and the message requesting vacation “did not state why her conditions required leave or how the leave would accommodate her conditions.” (AA 338)

Even assuming that Garrison’s request had been sufficient, the court said, the accommodation she requested was not reasonable. (AA 338) “‘[A]n accommodation that would cause other employees to work harder, longer, or be deprived of opportunities is not mandated.’” (AA 338) (quoting Rehrs v. Iams Co., 486 F.3d 353, 357 (8th Cir. 2007)). Allowing Garrison to take an immediate leave of absence, the court explained, would have required Bell or the assistant manager to cut short their vacations, or would have required the fourth key holder to work more hours. Additionally, allowing Garrison to take a leave of absence would have deprived the store of one key holder, imposing an undue hardship on the business. (AA 338-39)

The court rejected Garrison’s retaliation claim in a single paragraph. “Claims of retaliation under the ADA,” the court said, “require the plaintiff to establish she suffered an adverse employment action. As explained above … Garrison has not established she suffered an adverse employment action ….” (AA 340) (internal citations omitted).

Summary of Argument

The district court wrongly held that because Garrison could not show any adverse action other than Dolgencorp’s refusal to provide a reasonable accommodation for her disabilities, she could not state a failure-to-accommodate claim. Employers have an affirmative obligation to provide reasonable accommodations for the known disabilities of their employees. Failure to do so deprives employees of equal employment opportunities. Accordingly, as this Court has recognized, a failure to accommodate is, standing alone, actionable under the ADA.

The court also erred in holding that Garrison did not adequately request a reasonable accommodation and that, even if she had done so, the accommodation she sought was unreasonable as a matter of law. A jury could find that Bell knew Garrison was seeking vacation time to deal with ongoing health issues associated with her disabilities. A jury could also find that Dolgencorp could have accommodated Garrison under the ADA by granting her leave, because Bell testified that if Garrison had qualified for leave under the FMLA, she would have found a way to preserve her job.

Finally, the district court erred by applying the wrong legal standard to Garrison’s retaliation claim. The court held that because Garrison had not established an adverse action for purposes of her substantive discrimination claim, ipso facto she could not establish an adverse action for purposes of her retaliation claim. The court ignored that the adverse action standard for a retaliation claim differs from the adverse action standard for a substantive claim.

Argument

A. The district court wrongly granted summary judgment on Garrison’s disability discrimination claim.

The district court misinterpreted the ADA’s mandate that employers must provide a reasonable accommodation for a known disability. The failure to accommodate is an adverse action that is sufficient, standing alone, to support a disability discrimination claim. The district court’s alternative holdings are also erroneous, as Garrison raised genuine issues of material fact over whether she adequately requested an accommodation and whether the accommodation that she sought was reasonable.

1. An employer’s failure to accommodate a known disability is independently actionable under the ADA. No additional “adverse action” is required.

The ADA prohibits employers from discriminating on the basis of disability “in regard to … terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The statute defines “discriminate” to include a variety of employer actions, including the failure to provide a reasonable accommodation. Id.

§ 12112(b)(5)(A). Each of the specified actions violates the statute because it discriminates with regard to the “terms, conditions, and privileges of employment.” See, e.g., id. § 12112(b)(1) (“limiting, segregating, or classifying [applicants or employees] in a way that adversely affects [their] opportunities or status”);

id. § 12112(b)(4) (“excluding or otherwise denying equal jobs or benefits”).

Like the other specified actions, the failure to accommodate an employee or applicant’s disability inherently discriminates with respect to the “terms, conditions, and privileges of employment.” Reasonable accommodations level the playing field to assure equality. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (“[T]he Act specifies … that preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.”). A given accommodation may ensure equal opportunity in the application process, allow employees with disabilities to perform the essential functions of the job held or desired, or enable employees with disabilities to enjoy equal benefits and privileges of employment. 29 C.F.R. § 1630.2(o)(i)-(iii). “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 29 C.F.R. pt. 1630 App. § 1630.2(o); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335, at *2 (Oct. 17, 2002) (same) [“Reasonable Accommodation Guidance”].

Denial of a reasonable accommodation means, by definition, that an employee does not receive equal employment opportunities. See 29 C.F.R. pt. 1630 App. § 1630.2(o). Thus, the denial necessarily affects the terms, conditions, and privileges of employment. Notwithstanding Garrison’s arguments in her brief on demotion and constructive discharge,[3] Opening Br. at 59-63, the failure to provide a reasonable accommodation is, itself, the only adverse action required to support an ADA claim. See 29 C.F.R. § 1630.9(a) (failure to provide reasonable accommodation “is unlawful”) (emphasis added).[4]

This Court has repeatedly recognized that the ADA renders failure to accommodate a stand-alone violation. Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 870 (8th Cir. 2008) (“An employer’s failure to make a reasonable accommodation is a separate form of prohibited discrimination under both the ADA and the Rehabilitation Act.”), abrogated on other grounds, Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011); Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 1051 (8th Cir. 2005) (“[I]n this Circuit, failure to accommodate and disparate treatment are two separate theories of liability under the ADA.”).

To prove this stand-alone violation, a plaintiff need only show a failure to comply with the “legally imposed duty” to provide a reasonable accommodation. Peebles, 354 F.3d at 767. “[T]here is no requirement to demonstrate any adverse action other than the failure to accommodate itself.” Mershon, 442 F.3d at 1077 n.5 (Rehabilitation Act and Title III of ADA); see Dick v. Dickinson State Univ., 826 F.3d 1054, 1060 (8th Cir. 2016) (Rehabilitation Act) (“An employer is … liable for committing an adverse employment action if the employee in need of assistance actually requested but was denied a reasonable accommodation.”); Voeltz, 406 F.3d at 1051 (jury free to award damages on failure-to-accommodate claim even though it found against plaintiff on disparate treatment claim); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 579 (4th Cir. 2015) (prima facie case does not require showing of any adverse action beyond failure to accommodate); McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96-97 (2d Cir. 2009) (same); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 n.12 (10th Cir. 1999) (en banc) (“Congress has already determined that a failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination.”).

The ADA does not require any adverse action beyond the denial of accommodation because “[t]he concern [in a failure-to-accommodate case] is compelling behavior, not policing an employer’s actions that, when accompanied by an invidious discriminatory intent, are unlawful.” Peebles, 354 F.3d at 767. See generally Megan I. Brennan, Need I Prove More: Why an Adverse Employment Action Prong Has No Place in a Failure to Accommodate Disability Claim, 36 Hamline L. Rev. 497, 504 (Summer 2013) (“[A] more straightforward reading of the ADA leads to the conclusion that no separate adverse action is necessary.”).

Some decisions of this Court do appear to require proof of an additional adverse action to establish a failure-to-accommodate claim. See Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624 (8th Cir. 2016); Schaffhauser, 794 F.3d at 906; Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 716 (8th Cir. 2003). Read in that way, these opinions are incompatible with the plain language of the ADA and this Court’s precedents, and cannot stand. However, a closer review reveals that the lack of a separate adverse action was not outcome-determinative in those cases because the Court in each instance would have reached the same result even under the correct approach.

In Schaffhauser, for example, the plaintiff was demoted, so the Court did not have to consider whether a failure-to-accommodate claim could survive in the absence of a separate adverse action. 794 F.3d at 901. The same was true in Fenney, 327 F.3d at 711 (constructive demotion). And in Kelleher, the Court rejected a failure-to-accommodate claim on the ground that there was no adverse action when the employer transferred the plaintiff rather than continuing its long-term practice of accommodating her in her existing position. Although the Court rejected the claim on the ground that the transfer did not materially change the terms or conditions of her employment, 817 F.3d at 631-32, the transfer did in fact constitute a reasonable accommodation—just not the accommodation the plaintiff preferred. See Reasonable Accommodation Guidance, 2002 WL 31994335, at question 9 (employer need not provide employee’s preferred accommodation).

2. Whether Garrison adequately requested a reasonable accommodation is a genuine issue of material fact.

The district court interpreted this Court’s precedent too narrowly in concluding that Garrison did not adequately request a reasonable accommodation. The court cited Convergys, 491 F.3d at 795, for the proposition that an accommodation request must “provide relevant details of the employee’s disability including the reasons that the disability requires the requested accommodation.” (AA 337) The court then parsed the language of Garrison’s text messages and held that Garrison had not been specific enough about the details of her disabilities or the reason that they required a leave of absence. (AA 337)

The ADA, however, is not so rigid, and this Court considers not only the language of a reasonable accommodation request but also the employer’s background knowledge in assessing the sufficiency of the request. Determining whether an employee has adequately requested a reasonable accommodation, the Court has held, “necessarily accounts for the employer’s knowledge of the disability and the employee’s prior communications about the disability, and is not limited to the precise words spoken by the employee at the time of the request.” Kowitz v. Trinity Health, 839 F.3d 742, 748 (8th Cir. 2016). An employee need only let her employer know in “plain English” that she needs “an adjustment or change at work for a reason related to a medical condition.” Reasonable Accommodation Guidance, 2002 WL 31994335, at *4. The ADA does not require her to use any “magic words.” Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 n.5 (8th Cir. 1999).

While some of this Court’s cases do appear to require employees to provide more details, they do so only when an employer is completely unaware of an employee’s disability or, “if not obvious, the reason that his disability requires an accommodation.” Convergys, 491 F.3d at 795. For instance, in Miller v. National Casualty Co., 61 F.3d 627 (8th Cir. 1995), this Court held that the plaintiff had not adequately requested a reasonable accommodation because her mental illness was not obvious, she had previously told her employer that she had no conditions that would affect her job performance, and the employer did not learn about her manic depression until one week after it terminated her. Id. at 629-30. The same was true in Kobus v. College of St. Scholastica, Inc., 608 F.3d 1034 (8th Cir. 2010), where the employee’s limitations were not obvious, he repeatedly refused to reveal his diagnosis, and he expressed doubt that he could confirm his diagnosis with a doctor. Id. at 1038.

Thus, although the district court accurately quoted the case law, it disregarded the larger point that this Court evaluates reasonable accommodation requests on a fact-specific basis, taking into account “the employer’s knowledge of the disability and the employee’s prior communications about the disability.” Kowitz, 839 F.3d at 748. Here, a jury could find that Bell understood Garrison to be seeking a reasonable accommodation for her disabilities, or that she should have done so. Garrison expressly told Bell that she was seeking leave because of her migraines, anxiety, and depression. She explained, moreover, that her anxiety attacks were getting worse and she could not function properly on her new medication. (AA 187, 189, 208, 210, 233) Bell knew that (1) Garrison was having a health crisis for the entire week (AA 224), (2) Garrison was seeking leave because of continuing issues with anxiety, depression, and headaches (AA 220), and (3) Garrison needed time off to deal with these ongoing health issues (AA 224). A reasonable jury could conclude that Bell understood that Garrison was seeking a reasonable accommodation.

Contrary to the district court’s apparent understanding (AA 326), it was unnecessary for Garrison to contact Matrix or human resources to request a reasonable accommodation under the ADA. “The ADA avoids a formulistic approach ….” Reasonable Accommodation Guidance, 2002 WL 31994335, at *4 n.19. An employee seeking a reasonable accommodation need only “let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition.” Id. at *4; see also Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999) (“What matters under the ADA are not formalisms about the manner of the request ….”); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir. 1998) (“A request as straightforward as asking for continued employment is a sufficient request for accommodation.”); Lee v. District of Columbia, 920 F. Supp. 2d 127, 137 (D.D.C. 2013) (rejecting District’s assertion that plaintiff could only request reasonable accommodation through disability coordinator). A reasonable jury could find that, by asking Bell for leave, Garrison adequately notified Dolgencorp that she needed an accommodation.

Once Garrison requested a reasonable accommodation, the ADA required Dolgencorp to initiate an interactive process to determine what accommodations might be “appropriate and available.” Fjellestad, 188 F.3d at 953. Evidence that Bell would have accommodated leave under the FMLA, (AA 229), suggests that she also could have done so under the ADA. Nevertheless, Bell unilaterally shut down the interactive process. While not independently actionable,[5] Bell’s failure to explore accommodations with Garrison is prima facie evidence of Dolgencorp’s bad faith that precludes summary judgment. Fjellestad, 188 F.3d at 952 (where employer fails to engage in interactive process, factual question exists as to whether employer attempted to provide reasonable accommodation).

3. Whether the accommodation Garrison sought was reasonable is a genuine issue of material fact.

The district court ignored important evidence in holding that it would be unreasonable for Dolgencorp to grant Garrison’s leave request. The court observed that if Garrison went on leave, the store would be left without sufficient key holders. Either Bell and the assistant manager would have to cut short their vacations, the court said, or the fourth key holder would have to work more hours. (AA 338-39) According to the court, “‘an accommodation that would cause other employees to work harder, longer, or be deprived of opportunities is not mandated.’” (AA 338) (citation omitted).

However, the court overlooked Bell’s myopic focus on the FMLA. She did not appear to recognize that the ADA operates independently from the FMLA, and that even if Garrison did not qualify for FMLA leave, she might have qualified for a reasonable accommodation under the ADA. See 29 C.F.R. § 825.702(b) (Department of Labor regulation stating that FMLA and ADA rights “must be analyzed separately”); Hatchett v. Philander Smith Coll., 251 F.3d 670, 675 n.4 (8th Cir. 2001) (“‘[T]he leave provisions of the [FMLA] are wholly distinct from the reasonable accommodation obligations of employers covered under the [ADA].’”) (quoting 29 C.F.R. § 825.702(a)); Reasonable Accommodation Guidance, 2002 WL 31994335, at *16 (because ADA and FMLA are complementary, an employer covered under both statutes has affirmative obligation to “determine an employee’s rights under each statute separately”); see generally Tory L. Lucas, Disabling Complexity: The Americans with Disabilities Act of 1990 and Its Interaction with Other Federal Laws, 38 Creighton L. Rev. 871 (June 2005).

Bell did not believe that Garrison qualified for FMLA leave but recognized that, if she did, she would be entitled to twelve weeks of leave. (AA 229); see 29 U.S.C. § 2612(a)(1)). She testified that she would “protect [Garrison’s] job as long as she’s still with us if she’s got FMLA.” (AA 229) A reasonable jury could find that if Garrison were to take leave, the effects would be the same whether she took it under the FMLA or the ADA. If Bell could accommodate FMLA leave, a jury could find, she could also accommodate leave under the ADA.

B. The district court applied the wrong legal standard to assess whether Garrison was subjected to an “adverse action” for purposes of her retaliation claim.

The district court ignored controlling Supreme Court and Circuit law in analyzing Garrison’s retaliation claim. In Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006), the Supreme Court articulated a new, more expansive standard for showing an adverse action in the retaliation context than in the substantive discrimination context. This standard overturned previous Circuit law.

The Burlington Northern Court relied on differences in statutory language and purpose to hold that Title VII’s antiretaliation provision prohibits a broader range of conduct than the substantive discrimination provision. Id. at 61-63. In the retaliation context, the Court held, a plaintiff must show only “that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68 (internal quotation marks and citation omitted). Although the antiretaliation provision “cannot immunize [an] employee from those petty slights or minor annoyances that often take place at work and that all employees experience,” the Court said, it “prohibit[s] employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC,’ the courts, and their employers.” Id. (citation omitted).

The Court clarified that its newly articulated standard would apply to a broad range of employer conduct, including conduct that would not qualify as an ultimate employment action. For example, the Court observed, “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.” Id. at 69. The Court also cited Rochon v. Gonzales, 438 F.3d 1211, 1213 (D.C. Cir. 2006), where the FBI retaliated against an employee by refusing, contrary to policy, to investigate death threats from a federal prisoner made against the agent and his wife, and Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996), where the employer retaliated against a former employee by filing false criminal charges. Burlington N., 548 U.S. at 63-64.

Prior to Burlington Northern, this Court treated the adverse action requirement the same way for substantive discrimination claims and retaliation claims. See, e.g., Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997) (holding that a retaliation claim requires “the sort of ultimate employment decision intended to be actionable under Title VII”). The Supreme Court expressly overturned this rule in Burlington Northern. Citing Manning, the Court said, “We … reject the standards applied in the Courts of Appeals that have treated the antiretaliation provision as forbidding the same conduct prohibited by the antidiscrimination provision and that have limited actionable retaliation to so-called ‘ultimate employment decisions.’” 548 U.S. at 67.

This Court now follows the Burlington Northern rule. Hill v. City of Pine Bluff, 696 F.3d 709, 715 (8th Cir. 2012). The more stringent adverse action standard for substantive claims no longer applies in the retaliation context.

Likely because neither party cited the governing law,[6] the district court overlooked the Burlington Northern standard. (AA 340) The court cited only one case—Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013)—to support its assertion that “[c]laims of retaliation under the ADA ... require the plaintiff to establish she suffered an adverse employment action.” (AA 340) Hill, however, did not cite Burlington Northern and relied exclusively on a pre-Burlington Northern case: Amir v. St. Louis University, 184 F.3d 1017, 1025 (8th Cir. 1999). The court then held that Garrison could not establish an “adverse employment action” for purposes of her retaliation claim based solely on its prior ruling that, without demotion or constructive discharge, she had not done so vis-à-vis her failure-to-accommodate claim. (AA 340) This analysis is erroneous under Burlington Northern.

Conclusion

The district court applied the wrong legal standard both to Garrison’s failure-to-accommodate claim and to her retaliation claim. Contrary to the district court’s holding, the only adverse action required to support a failure-to-accommodate claim is the denial of an accommodation. Moreover, for purposes of a retaliation claim, a plaintiff need only show that “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S at 68 (internal quotation marks and citation omitted).

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

Respectfully submitted,

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

[2] “AA” refers to Appellant’s Appendix, Volume 1.

[3] The EEOC takes no position on whether Garrison was demoted or constructively discharged, which is, in any case, irrelevant to her failure-to-accommodate claim. Nevertheless, we note that the district court applied the wrong legal standard to the constructive discharge claim. The court cited Smith v. World Insurance Co., 38 F.3d 1456 (8th Cir. 1994), for the proposition that “‘[a] constructive discharge [occurs] when an employer deliberately renders the employee’s working conditions intolerable and thus forces [her] to quit [her] job.’” (AA 335) (quoting Smith, 38 F.3d at 1460). But in Green v. Brennan, 136 S. Ct. 1769 (2016), the Supreme Court eliminated the requirement that a plaintiff alleging constructive discharge show the employer “deliberately” created intolerable working conditions. See id. at 1779-80.

[4] Congress expressly authorized the EEOC to issue regulations implementing Title I of the ADA. 42 U.S.C. § 12116. The EEOC’s regulation on reasonable accommodations, promulgated after notice and comment, is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[5] To the extent Garrison suggests otherwise, Opening Br. at 20, 22, 52, 58, she is mistaken. Fjellestad, 188 F.3d at 952 (“[A]n employer will not be held liable under the ADA for failing to engage in an interactive process if no reasonable accommodation was possible ….”).

[6] Garrison cites the Burlington Northern standard on appeal, Opening Br. at 59, but her brief does not explain that “materially adverse” means something different in the retaliation context than it does in the substantive discrimination context. See Burlington Northern, 548 U.S. at 68.