Nos

TABLE OF AUTHORITIES............................................................................ iii

RULE 35(B) STATEMENT REQUESTING REHEARING EN BANC............ 1

STATEMENT OF THE ISSUES...................................................................... 2

STATEMENT OF FACTS............................................................................... 3

PANEL DECISION.......................................................................................... 6

ARGUMENT.................................................................................................... 8

I. The panel majority’s decision that Cleveland can bar an EEOC action conflicts with long-standing Supreme Court precedent recognizing that EEOC is not a proxy for the individuals for whom it seeks relief......................................................... 8

II. The panel majority’s decision that no reasonable jury could reconcile Turner’s SSDI assertion of disability with EEOC’s ADA lawsuit is inconsistent with Cleveland. 13

CONCLUSION............................................................................................... 15

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM: Panel Opinion

TABLE OF AUTHORITIES

Cases

Austin v. Winter, 286 Fed. App’x 31 (4th Cir. 2008)...................................... 12

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999)..................... passim

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977).................................. 10

EEOC v. AutoZone, Inc., No. 07-1154, 2009 WL 464574,

(C.D. Ill. Feb. 23, 2009)............................................................................. 12

EEOC v. Resources for Human Dev,, No. 10-3322, 2011 WL 6091560,

(E.D. La. Dec. 7, 2011).............................................................................. 12

EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000)............. 5, 6, 11

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)........................................ 1, 9

Gen. Tel. Co. v. EEOC, 446 U.S. 318 (1980)........................................... passim

Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990)................................ 11

Statutes

42 U.S.C. § 12111(8)........................................................................................ 4

42 U.S.C. § 12112(A) ...................................................................................... 4

RULE 35(B) STATEMENT REQUESTING REHEARING EN BANC

In the professional judgment of the undersigned, panel rehearing or rehearing en banc is warranted in this case. The decision by a divided panel of this Court conflicts with Supreme Court precedent and addresses two questions of exceptional importance. Accordingly, EEOC respectfully requests panel rehearing or rehearing en banc. See Fed. R. App. P. 35(b)(1)(A)-(B).

The first question raised is whether an EEOC enforcement action under the Americans with Disabilities Act (ADA) can be barred under Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), by a charging party’s context-related legal assertion of disability in a Social Security Disability (SSDI) application and by receipt of benefits. The panel’s unprecedented conclusion that an EEOC action can be barred conflicts with Supreme Court precedent recognizing that EEOC is not a proxy for the individuals on whose behalf it seeks relief but instead acts in the public interest to eradicate employment discrimination. See, e.g., Gen. Tel. Co. v. EEOC, 446 U.S. 318 (1980); EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). No court of appeals has ever explicitly held that an individual’s SSA assertion of disability can bar an EEOC action under Cleveland, and two district courts have said it cannot. The panel’s decision will seriously impede EEOC’s ability to enforce the ADA against private employers (and would apply to the United States Department of Justice when it enforces the ADEA against state and local entities).

Even if EEOC can be barred under Cleveland, the panel’s decision raises a second question of exceptional importance regarding the quantum of evidence required under Cleveland to allow a jury to reconcile an SSDI assertion of disability with a subsequent assertion of being a “qualified individual” under the ADA, i.e., able to perform the essential functions of the job, with or without reasonable accommodation. The majority’s conclusion that EEOC’s evidence was insufficient misapprehends Cleveland and threatens to undermine the ability of the government and private individuals to enforce the ADA, especially where, as here, a disabled individual seeks to return to work after having received SSDI benefits.

STATEMENT OF THE ISSUES

1. Whether an EEOC enforcement action under the ADA can be barred under Cleveland v. Policy Mgmt. Sys., 526 U.S. 795 (1999), by an individual’s context-related legal assertion of disability in an SSDI application and receipt of benefits?

2. If it can, whether EEOC satisfied its burden under Cleveland of offering evidence that would allow a jury to reconcile the charging party’s SSDI assertion of disability with EEOC’s action where EEOC offered evidence that his condition improved over time and he voluntarily enrolled in SSA’s “Ticket to Work” program at the earliest invitation; his award was based on a presumption; he initially tried to return to work with reasonable accommodation; and Greater Baltimore Medical Center (GMBC) treated him as too disabled to work?

Statement of facts

Michael Turner, “the Son of GBMC,” was an outstanding employee for twenty years before he contracted necrotizing fasciitis and experienced a stroke. Unable to work for nearly a year, he applied for and received SSDI benefits. As soon as he improved, Turner attempted to return to work. Although his doctor cleared him to return to work (initially part-time and with some restrictions, but then without any restrictions), and although GBMC’s own doctor cleared him to work with some limitations, GBMC refused to give Turner his old job back or to give him a new one. Instead, it fired him. Turner has since applied for more than two dozen jobs at GBMC, ten of which even GBMC concedes he was qualified for. He has also worked more than 1,100 hours at GBMC as a volunteer. But GBMC has steadfastly refused to give Turner a paying job.

Pursuant to its enforcement authority, the EEOC filed suit alleging that GBMC’s actions violated the ADA, which prohibits discrimination against “a qualified individual with a disability,” i.e., someone “who, with or without reasonable accommodation, can perform the essential functions” of the job. 42 U.S.C. §§12112(a), 12111(8). Two weeks before trial, however, the district court threw out EEOC’s action on summary judgment. Relying on Cleveland, the court held that Turner’s SSDI application and receipt of benefits barred EEOC from showing that Turner was a “qualified individual” under the ADA.

In Cleveland, the Court held that an individual’s “context-related legal conclusion, namely ‘I am disabled for the purposes of the Social Security Act’” and that same individual’s assertion in an ADA suit that he could work “do not inherently conflict to the point where courts should apply a special negative presumption” of estoppel. Id. at 802. Stating that “there are . . . many situations in which an SSDI claim and an ADA claim can comfortably exist side-by-side,” the Court held that a plaintiff can defeat summary judgment with evidence allowing a reasonable jury to find that the plaintiff had a good-faith belief in the SSDI representation of disability but could nonetheless perform the essential functions of the job, with or without reasonable accommodation. Id. at 802-03, 807. The Court set out three relevant examples of such circumstances: (1) a plaintiff’s condition improved such that he could work, but he nevertheless still qualified for SSA benefits; (2) a plaintiff alleged he could work with reasonable accommodation, which the ADA requires but SSA does not consider; and (3) SSA awarded benefits based on a presumption, not a finding, about the plaintiff’s impairment based on SSA’s list of presumed impairments. Id. at 803-05.

Although EEOC argued that Cleveland did not apply because Turner, not EEOC, made the context-related legal assertion of disability to the SSA, the district court rejected that argument. In the district court’s view, this Court’s post-Cleveland holding in EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000), that a jury could reconcile the charging party’s SSDI assertion of being unable to work with EEOC’s claim she could have worked with reasonable accommodation, meant that Cleveland applies to EEOC. The court also rejected EEOC’s arguments that a jury could reconcile Turner’s SSDI application with EEOC’s lawsuit by finding Turner had subsequently recovered; he actively participated in SSA’s “Ticket to Work Program,” which communicated to SSA that he could work; and he could have worked with reasonable accommodation.

EEOC filed a motion to reconsider, arguing, inter alia, that SSA’s “Disability Determination,” JA673, and an affidavit from SSA’s Acting Division Director in the Office of Policy and Consultation, Office of Disability Programs, JA678-80, showed that SSA awarded Turner benefits based on a presumption—pursuant to its five-step process for awarding benefits—that his necrotizing fasciitis rendered him disabled, making his award reconcilable with EEOC’s assertion he was qualified under the ADA. EEOC also argued that a jury could reconcile by finding that Turner reasonably believed he was still disabled for the SSA’s purposes because GBMC treated him as too disabled to work and no other employer would hire him, either. The district court denied EEOC’s motion.

PANEL DECISION

A divided panel expressed “deep[] concern[] about GBMC’s attempts to prevent a partially disabled former employee from returning to work after he was cleared to return without restriction,” Slip op. at 21, but nevertheless affirmed the district court’s decision. The majority held that, “as Stowe Pharr-Mills, Inc. demonstrates,” Cleveland’s “analysis properly applies to ADA enforcement actions brought by EEOC.” Id. at 13. The majority acknowledged that EEOC’s interest “is not merely derivative of the individual claimant’s interest” but stated that this did not make “a claimant’s statements to other government agencies” less relevant to a government action than to the claimant’s own action. Id.

Having concluded that Cleveland applies to EEOC, the majority turned to whether “EEOC can satisfy the Cleveland test by showing that” Turner’s SSDI assertions did not genuinely conflict with EEOC’s assertion he could have worked with or without reasonable accommodation during “the relevant time period.” Id. at 14. Although EEOC alleged that GBMC discriminated against Turner by both firing him and refusing to rehire him, the majority said the “relevant time period” was from January 23, 2006 (the date of Turner’s first doctor’s release) to June 30, 2006 (his termination). Id. The majority found a “genuine” conflict between Turner’s SSDI assertions, which communicated he was totally or almost-totally disabled, and his doctor’s releases saying he could work. Id. at 16. The majority stated summarily that Turner’s voluntary participation in SSA’s “Ticket to Work” program failed “to resolve[] any conflict with his prior statements about his disability.” Id. at 17. “In any event,” Turner enrolled only in 2009. Id.

The majority “next turn[ed] to whether Mr. Turner’s good-faith belief in the accuracy of his SSDI application is reconcilable with his [sic] ADA claim.” Id. “The central question,” the majority said, was whether Turner “could have reasonably believed” he was not obliged to notify SSA of his improved condition. Id. The majority said he could not. Id. at 18-19. The panel rejected EEOC’s argument that because neither GBMC nor any other employer would hire Turner, he “could have inferred in good faith that he was truly disabled and therefore” not required to notify SSA of his improved condition. Id. at 19. The majority found this implausible because Turner testified he could work without accommodation and had tried to return to work. Id. Finally, the majority rejected EEOC’s argument that a jury could reconcile based on evidence that SSA presumed Turner’s necrotizing fasciitis rendered him disabled, stating this was “merely one factor” to consider under Cleveland. Id. at 20.

Judge Gregory dissented, stating that Cleveland does not apply to EEOC because “[a] central premise underlying the Court’s decision is that it was the same party who took seemingly contrary legal positions in the SSDI application and the ADA lawsuit” and because the EEOC was not a party to the SSA proceedings and “‘is not merely a proxy’ for the individuals for whom it seeks relief.” Id. at 23 (quoting Gen. Tel., 446 U.S. at 326). The majority’s holding, Judge Gregory said, contravened Supreme Court precedent “refusing to apply estoppel against the government” and undermined the public’s “interest in the eradication of employment discrimination.” Id. at 24. Even if Cleveland applied, Judge Gregory said, “there are a number of ways a reasonable jury could reconcile Turner’s SSDI statements and continued receipt of benefits with EEOC’s ADA claim.” Id. at 25.

ARGUMEN T

I. The panel majority’s decision that Cleveland can bar an EEOC action conflicts with long-standing Supreme Court precedent recognizing that EEOC is not a proxy for the individuals for whom it seeks relief.

The panel’s decision that EEOC’s actions can be barred under Cleveland by a charging party’s assertion of disability in an SSDI application should be reconsidered for three reasons: (1) it is based on a misreading of Cleveland and is contrary to a long line of Supreme Court precedent recognizing that EEOC is not a proxy for the individuals for whom the agency seeks relief; (2) it is not compelled by this Court’s decision in Stowe-Pharr Mills; and (3) if allowed to stand, the panel’s decision will severely undermine government efforts to eradicate disability discrimination, particularly against disabled individuals who improve and then seek to forego government benefits (or disability insurance) for a paycheck.

Cleveland does not address whether its analysis applies to EEOC. But, as the dissent properly recognized, “[a] central premise underlying the decision is that it was the same party who took the seemingly contrary legal positions in the SSDI application and the ADA lawsuit.” Slip op. at 23 (Gregory, J., dissenting). This case, in contrast, involves analysis of two different parties’ context-related legal representations. Before the SSA, it was Turner who asserted that he was disabled under the SSA. Here, EEOC is the plaintiff, and it is EEOC who has asserted that Turner could have worked, with or without reasonable accommodation.

Although EEOC is seeking relief on Turner’s behalf, in addition to broader injunctive relief, the Supreme Court has repeatedly recognized that “EEOC is not merely a proxy” for the individuals for whom it seeks relief. Gen. Tel., 446 U.S. at 326 (EEOC need not comply with Rule 23 class certification requirements to bring an action on behalf of a class of aggrieved individuals); see also Waffle House, 534 U.S. at 297 (“We have recognized several situations in which the EEOC does not stand in the employee’s shoes.”); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977) (“EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties.”). Rather, the Court has observed, “[w]hen the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.” Gen. Tel., 446 U.S. at 326. Because Cleveland applied where the same party took potentially conflicting legal positions, and because EEOC is not a proxy for the individuals for whom it seeks relief, the EEOC’s lawsuit cannot be barred by a charging party’s SSDI representation of disability. See Slip op. at 23 (Gregory, J., dissenting).

The majority dispatched with EEOC’s reading of Cleveland with cursory explanation, stating only that it was irrelevant that EEOC has a governmental interest in enforcement as, “[a]fter all, Cleveland did not consider the nature of the claimant’s interest, but applied summary judgment principles.” Id. at 13. This observation does not advance the majority’s view that Cleveland applies to government actions. Cleveland naturally did not discuss the claimant’s interest because, as EEOC argued, it was the same claimant who made inconsistent legal assertions in the SSA proceedings and ADA lawsuit. The majority offered no reasoned explanation of how its conclusion that EEOC can be barred is reconcilable with the Supreme Court’s holdings in Waffle House, General Telephone, and Occidental; in fact, the majority never even mentioned these cases.

The panel also erred in holding that Stowe-Pharr Mills compelled its conclusion. See id. Stowe-Pharr Mills never addressed the threshold question of whether an EEOC enforcement action can be barred under Cleveland. While the panel interpreted Stowe-Pharr Mills’ silence on this issue as implicitly holding that EEOC can be barred under Cleveland, the panel read too much into the opinion. A holding is implicit only if necessary to the ruling; in Stowe-Pharr Mills, it was not necessary for the panel to conclude that EEOC actions can be barred under Cleveland since the panel ruled a jury could reconcile the charging party’s SSDI statements and EEOC’s lawsuit. If this Court nevertheless views Stowe-Pharr Mills as implicitly holding that Cleveland applies to EEOC, we urge this Court to rehear this case en banc in order to squarely address, and reconsider, that ruling.

As the dissent noted, the majority’s view that Cleveland can bar an EEOC enforcement action is also inconsistent with precedent from the Supreme Court and this Court repeatedly stating that applying estoppel against the federal government, which is essentially what the district court did here, undermines the public interest and is very rarely—if ever—warranted. See, e.g., Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 422 (1990) (“[W]e have reversed every finding of estoppel [against the federal government] that we have reviewed.”); Austin v. Winter, 286 Fed. App’x 31, 38 (4th Cir. 2008) (standard for estoppel against the government “is rigorous” and requires an affirmative misrepresentation).

The panel’s decision is also unprecedented in the courts of appeals. No other court of appeals has held that Cleveland applies to EEOC. Two district courts have held that it does not. See EEOC v. Res. for Human Dev., No. 10-3322, 2011 WL 6091560, at *8-10 (E.D. La. Dec. 7, 2011); EEOC v. AutoZone, Inc., No. 07-1154, 2009 WL 464574, at *3-5 (C.D. Ill. Feb. 23, 2009).

Finally, the panel’s opinion, if left to stand, will severely undermine EEOC’s enforcement efforts. Few victims of discrimination who are fired, or not hired, because of their disability have the luxury of declining SSDI benefits (or disability insurance or worker’s compensation), for the dim prospect of eventually prevailing in a disability lawsuit years in the future. The practical consequence of the majority’s holding will therefore be to preclude government enforcement actions in nearly every case in which a disabled individual seeks to return to the workforce after receiving benefits, thereby thwarting the very purpose of the ADA—to eradicate discrimination against the disabled and enable them to move off government rolls and return to work. Permitting EEOC’s enforcement actions to proceed also confers no “‘unfair advantage’” to EEOC, which reaps no benefit from enforcing the law, and imposes no “‘unfair detriment’” on GMBC, who did not pay benefits. Slip op. at 24 (Gregory, J., dissenting). Rather, barring EEOC from enforcing the law provides GBMC a windfall “through the happenstance of an unemployed victim having applied for and received SSDI benefits.” Id. at 23.

II. The majority’s decision that no jury could reconcile Turner’s SSDI assertion of disability with EEOC’s ADA lawsuit conflicts with Cleveland.

As the dissent also recognized, the majority erred in concluding that a jury could not reconcile Turner’s SSDI statements with EEOC’s suit. This conclusion rests on a misreading of Cleveland and a misunderstanding of EEOC’s argument.

The majority first erred by summarily concluding that Turner’s voluntary participation in SSA’s “Ticket to Work” program did not resolve any conflict. Slip op. at 17. Cleveland explicitly recognized that “an individual’s disability may change over time” and that SSA sometimes grants SSDI benefits to individuals who can work, such as through trial-work periods. 526 U.S. at 805. The undisputed record shows that Turner’s condition improved, which SSA knew because he voluntarily enrolled in “Ticket to Work” as soon as SSA sent him a ticket. Yet, SSA did not cut off his benefits. If this is not a case in which a disabled individual’s improvement and enrollment in an SSA program satisfies Cleveland’s standard for getting to a jury, it is hard to imagine what case would.

The majority also erred in seeming to require that an individual inform SSA at the time of his application that he could work with reasonable accommodation. Cleveland does not make this a requirement. 526 U.S. at 803. Nor does Stowe-Pharr Mills. To the contrary, Stowe-Pharr Mills stated that the charging party “was not required to ‘refer to the possibility of reasonable accommodation’” when applying for benefits. 216 F.3d at 379 (quoting Cleveland, 526 U.S. at 803) (emphasis added). A jury should therefore have the opportunity to consider whether Turner’s continued receipt of benefits is reconcilable with EEOC’s claim that Turner could have initially returned to work with reasonable accommodation.

As the dissent also stated, a jury could reconcile EEOC’s suit with Turner’s “good-faith belief in his SSDI assertion of disability because that is how GBMC treated him when it refused to give him his job back or to hire him for a new position despite his dozens of applications and superb work history.” Slip op. at 25 (Gregory, J., dissenting). The majority’s rejection of this argument was seemingly based on a misunderstanding of it. EEOC did not argue that Turner could have reasonably believed he was still entitled to SSDI benefits because he was “truly disabled.” Id. at 19. Rather, EEOC argued Turner could have believed he still qualified because GBMC and other potential employers treated him as too disabled to work. This argument is consistent with EEOC’s complaint, alleging GBMC regarded Turner as disabled, and with Turner’s statements to EEOC that his disability did not affect his ability to work but that GBMC’s doctor “feels in an emergency – I may have trouble [] multi-task[ing],” GBMC “sees me as disabled,” and GBMC fired him and would not rehire him because its doctor thought Turner could not multi-task. JA104, JA106, JA120, JA122. And given GBMC’s concession that Turner was qualified for ten positions he sought, there is hardly any question that GBMC viewed Turner’s disability as precluding employment.

Finally, the majority erred in rejecting EEOC’s presumption argument. EEOC submitted evidence, which the majority seemed to acknowledge, showing that SSA awarded Turner benefits because necrotizing fasciitis is on SSA’s list of presumed impairments. See Slip op. at 20 n.3 (citing Br. at 51-54). The majority nevertheless said this was not enough to get to a jury because “the eligibility determination is merely one factor in a claimant’s showing that his claim is consistent with status as a ‘qualified individual.’” Slip op. at 20 (citing Cleveland, 526 U.S. at 804) (emphasis added). But Cleveland makes clear that evidence that an SSA award was based on a presumption is, standing alone, one situation in which a jury could reconcile SSDI and ADA assertions. See 526 U.S. at 803-05.

CONCLUSION

EEOC requests panel rehearing or rehearing en banc to correct these errors.

Respectfully submitted,

P. DAVID LOPEZ /s/ Anne Noel Occhialino

General Counsel _____________________________

ANNE NOEL OCCHIALINO

LORRAINE C. DAVIS Attorney for EEOC

Acting Associate General Counsel EEOC Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507-0001

(202) 663-4724

annenoel.occhialino@eeoc.gov