Table of Contents

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

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

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

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

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

District Court Decision............................................................... 9

Argument.............................................................................................. 11

I. In evaluating whether Harrison had a disability within the meaning of the ADA, the district court failed to apply the correct standards for coverage under the amended statute....................................... 12

A. The district court erroneously relied on outdated,

pre-ADAAA precedent in concluding that Harrison

failed to adduce sufficient evidence of an

actual disability.............................................................. 15

B. The district court erred by holding that Harrison could

not satisfy the amended ADA’s regarded-as definition

of disability..................................................................... .21

II. The ADA does not require “medical evidence” to establish

that an impairment substantially limits one or more major

life activities.......................................................................... 24

III. The district court applied the correct legal standard in

determining that the Parts Galore and Soave Enterprises

were Harrison’s employer.................................................... 29

Conclusion............................................................................................. 31

Certificate of Compliance

Certificate of Service

Addendum

Designation of Relevant Documents..................................... A1

ADA Amendments Act of 2008, Pub. L. No. 110-325,

122 Stat. 3553 (2008)............................................................. A2

42 U.S.C. § 12101, Historical and Statutory Notes............ A9

42 U.S.C. § 12102................................................................... A12

42 U.S.C. § 12205a................................................................. A14

29 C.F.R. § 1630.2.................................................................. A15

29 C.F.R. § 1630.9.................................................................. A21

Table of Authorities

Cases Page(s)

Bailey v. Real Time Staffing Servs., Inc.,

543 F. App’x 520 (6th Cir. 2013)............................................ 11

Barlia v. MWI Veterinary Supply, Inc.,

721 F. App’x 439 (6th Cir. 2018)............................... 13, 17, 25

Baum v. Metro Restoration Servs., Inc.,

No. 18-5699, 2019 WL 1569741 (6th Cir. Apr. 11, 2019).. 23, 27

Black v. Roadway Express, Inc.,

297 F.3d 445 (6th Cir. 2002)...................................... 10 ,19, 20

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984)................................................................... 14

Leader v. Venture Indus. Corp.,

No. 97-cv-76021, 1999 U.S. Dist. LEXIS 15947

(E.D. Mich. 1999)................................................................ 25, 28

Minnix v. City of Chillicothe,

No. 98-4285, 2000 U.S. App. LEXIS 2099 (6th Cir. 2000) 25, 28

Neely v. Benchmark Family Servs.,

640 F. Appx. 429 (6th Cir. 2016)......................... 22, 25, 27, 28

Sanford v. Main St. Baptist Church Manor, Inc.,

449 F. App’x 488 (6th Cir. 2011)............................................ 30

Summers v. Altarum Inst., Corp.,

740 F.3d 325 (4th Cir. 2014)................................................... 14

Sutton v. United Air Lines, Inc.,

527 U.S. 471 (1999)................................................................... 21

Swallows v. Barnes & Noble Book Stores, Inc.,

128 F.3d 990 (6th Cir. 1997)........................................ 9, 29, 30

Talley v. Family Dollar Stores of Ohio, Inc.,

542 F.3d 1099 (6th Cir. 2008).................................... 10, 21, 24

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

534 U.S. 184 (2002)................................................................... 18

York v. Tenn. Crushed Stone Ass’n,

684 F.2d 360 (6th Cir. 1982)................................................... 30

Statutes

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

42 U.S.C. §§ 12101 note.............................................................. passim

42 U.S.C. § 12102(1)(A)....................................................................... 12

42 U.S.C. § 12102(1)(C)....................................................................... 12

42 U.S.C. § 12102(2)(A)....................................................................... 14

42 U.S.C. § 12102(2)(B)................................................................ 14, 15

42 U.S.C. § 12102(3)(A)................................................................ 14, 15

42 U.S.C. § 12102(3)(B)....................................................................... 14

42 U.S.C. § 12102(4)............................................................................ 14

42 U.S.C. § 12102(4)(A)....................................................................... 13

42 U.S.C. § 12102(4)(B)..................................................................... 16

42 U.S.C. § 12102(4)(E)(i)(I)............................................................... 17

42 U.S.C. § 12102(4)(E)(i)(II)............................................................. 17

42 U.S.C. § 12102(4)(E)(i)(III)........................................................... 17

42 U.S.C. § 12205a............................................................................... 14

ADA Amendments Act of 2008, Pub. L. No. 110-325,

122 Stat. 3553 (2008)................................................................ 11

- § 2(a)(4)...................................................................................... 21

- § 2(b)(3)...................................................................................... 22

- § 2(b)(6)...................................................................................... 14

- § 4............................................................................................... 13

Regulations

29 C.F.R. § 1630.2(h)........................................................................... 26

29 C.F.R. § 1630.2(i)(1)(ii).................................................................. 15

29 C.F.R. § 1630.2(i)(2)................................................................. 13, 16

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

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

29 C.F.R. § 1630.2(j)(1)(ii)............................................................ 17, 25

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

29 C.F.R. § 1630.2(j)(1)(iv)................................................................. 17

29 C.F.R. § 1630.2(j)(1)(v)...................................................... 17, 25, 27

29 C.F.R. § 1630.2(j)(1)(vi)................................................................. 17

29 C.F.R. § 1620.2(j)(2)....................................................................... 22

29 C.F.R. § 1630.2(l)(1) ................................................................ 22, 23

29 C.F.R. § 1630.9(e)........................................................................... 22

Statement of Interest

The Equal Employment Opportunity Commission is charged by Congress with enforcing federal prohibitions on employment discrimination, including the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”). The district court in this case ruled that the plaintiff could not pursue an ADA termination claim because she had not shown she met the definition of disability. In so ruling, the court applied standards in effect before Congress’s 2008 amendments to the ADA, which upended the prior standards for both the actual and regard-as prongs of the disability definition. Because this ruling, if upheld, would undermine the effective enforcement of the ADA, the Commission respectfully offers its views to the Court. As a federal agency, the EEOC is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a)(2).

Statement of the Issues

1. Whether the district court failed to apply the correct standards for coverage under the amended ADA in holding that Harrison failed to adduce sufficient evidence of an actual or regarded-as disability.

2. Whether the ADA requires a plaintiff to adduce “medical evidence” to establish that an impairment substantially limits one or more major life activities.

3. Whether the district court applied the correct standard in concluding that Soave Enterprises and Parts Galore were Harrison’s employer for purposes of ADA liability because they could be deemed an “integrated enterprise.”

Statement of the Case

A. Statement of Facts

The record on summary judgment, viewed in the light most favorable to the plaintiff as nonmovant, reveals the following. In December 2005, Jacqueline Harrison was hired by Ferrous Processing and Trading Company to work at Parts Galore. Harrison deposition, R.23-2 at 6, 26, 29, PageID#199, 219, 222. Both Ferrous Processing and Parts Galore are subsidiaries of Soave Enterprises, L.L.C.[1] Murell deposition, R.23-4 at 42, PageID#468. Parts Galore maintains large vehicle yards and allows customers to salvage parts from vehicles on a self-service basis. Complaint, R.1 at 2, PageID#2. Harrison was a manager, and reported directly to Bill Wild, the president of Parts Galore. Complaint, R.1 at 2, PageID#2; Harrison deposition, R.23-2 at 29, PageID#222. Prior to her hire by Parts Galore, Harrison had worked for Wild as a manager at Highway Auto Equipment, a company that Ferrous Processing purchased from Wild in 2003 or 2004 and which subsequently became Parts Galore. Harrison deposition, R.23-2 at 26, 30, PageID#219, 223.

From 2007 on, Harrison primarily worked at the Parts Galore facility in West Warren, Michigan, but she also performed management duties at other Parts Galore locations. Harrison deposition, R.23-2 at 33, PageID#226. Her job duties included overseeing the yard, communicating with yard personnel about how many loads were going to go out each day, communicating with the processing area and tow truck drivers, and engaging in public outreach efforts. Harrison deposition, R.23-2 at 31, 35, PageID#224, 228. Harrison would go out into the yard to make sure that the facility’s processing area was running properly. Harrison deposition, R.23-2 at 37, PageID#230.

Harrison was also responsible for monitoring the perimeter of the facility to guard against theft. Harrison deposition, R.23-2 at 37-38, PageID#230-31. The West Warren facility covered between twenty-five and twenty-seven acres, and theft was a big problem. Harrison deposition, R.23-2 at 37-38, PageID#230-31. Harrison would patrol the perimeter two to three times a day, as well as when the facility opened in the morning and closed in the evening. Harrison deposition, R.23-2 at 45-46, PageID#238-39. Claiming safety concerns, Wild had long maintained an unwritten policy prohibiting female employees from walking out into the yard. Harrison deposition, R.23-2 at 37, PageID#230. Accordingly, prior to 2015, when Harrison would go out into the yard she would do so in a John Deere Gator (a small utility vehicle). Harrison deposition, R.23-2 at 37-38, 42-43, PageID#230-31, 235-36.

In 2010, Harrison suffered an injury to her right knee, resulting in a damaged meniscus and a torn ACL. Harrison deposition, R.23-2 at 17, 20-21, PageID#210, 213-14. While she underwent surgery to repair the meniscus, she elected not to have the ACL repaired because doing so would have required her to discontinue other medication she was taking at the time. Harrison deposition, R.23-2 at 18, PageID#211. As a result of the torn ACL, Harrison is unable to kneel on her right knee, walk long distances, or walk over rocks, and she must use caution when walking up an incline. Harrison deposition, R.23-2 at 22, PageID#215. She is not otherwise limited by her knee. Harrison deposition, R.23-2 at 22, PageID#215. Harrison did not have any other physical limitations that would adversely affect her ability to perform her job duties.^{^[2]} Harrison deposition, R.23-2 at 110, PageID#303.

In August 2014, Tony Murell became the Regional Manager for Parts Galore. Harrison deposition, R.23-2 at 41, PageID#234. Wild now reported to Murell; Harrison still reported to Wild. Harrison deposition, R.23-2 at 41, PageID#234. Beginning in early 2015, Murell changed the policy regarding use of the one John Deere Gator at each Parts Galore location. Harrison deposition, R.23-2 at 42-43, PageID#235-36. Previously, the Gator had been reserved exclusively for the manager’s use, but Murell instructed the yard employees to use the Gator to perform various yard duties, which meant it was in constant use and unavailable to Harrison. Id. In response, Harrison began using her own personal vehicle in place of the Gator. Harrison deposition, R.23-2 at 43, PageID#236.

Another of Harrison’s job duties was to spot-check cars to ensure that the crew had processed them fully and properly; for example, she would check whether they had removed the jack and the catalytic converter. Harrison deposition, R.23-2 at 59-60, 110, PageID#252-53, 303. Murell instituted a policy requiring the manager at each facility to perform a spot-check on five cars each day. Harrison deposition, R.23-2 at 101, PageID#294. However, Harrison testified, Murell told her that she did not need to do this duty herself every day; some days another employee could do it for her. Harrison deposition, R.23-2 at 101-02, PageID#294-95. Accordingly, Harrison did the spot-checks three days a week, and the other employee did them the other two days. Harrison deposition, R.23-2 at 102, PageID#295.

At some point, Harrison told Murell that the only job duty she could not do was to kneel down and look underneath cars to ensure that the catalytic converter had been removed. Harrison deposition, R.23-2 at 110, 129-30, PageID#303, 322-23. Harrison asked Murell if she could purchase “a wheeled mirror like the state police use to inspect trucks” to look under cars and confirm the catalytic converter had been removed, and he agreed to the request. Harrison deposition, R.23-2 at 110, PageID#303, 322. Harrison never sought or required any other accommodation from Parts Galore. Harrison deposition, R.23-2 at 149, PageID#342.

Harrison testified that, on August 26, 2015, Murell told her “they’ve decided that [her] employment is terminated because [she] can no longer do [her] duties because [she] ha[s] a torn ACL.” Harrison deposition, R.23-2 at 128, PageID#321. According to Harrison, when she asked Murell, “what part of my job haven’t I done?,” he responded, “you don’t go out and do the five car checklist.” Harrison deposition, R.23-2 at 128-30, 146, PageID#321, 339. When Harrison reminded Murell that he had told her another employee could do some of the checks, Murell denied ever saying that. Harrison deposition, R.23-2 at 130, PageID#323.

Harrison filed suit, alleging that Parts Galore failed to reasonably accommodate her disability and that it terminated her because of her disability. Complaint, R.1 at 6, PageID#6. She asserted that she was covered under the ADA both based on her actual disability and because Parts Galore regarded her as disabled. Complaint, R.1 at 6, PageID#6. Parts Galore moved for summary judgment, arguing that because Harrison had admitted that she was employed by Ferrous Processing and Trading Company, Soave Enterprises and Parts Galore were not her employers for purposes of ADA liability. Summary Judgment Motion, R.22 at 15, PageID#80. Parts Galore also argued that Harrison was not disabled within the meaning of the ADA and that she had neither requested, nor been denied, reasonable accommodation. Summary Judgment Motion, R.22 at 15-19, PageID#80-84. Parts Galore further argued that Harrison’s claim failed because she did not present “medical evidence” showing either that she had an impairment or that any such impairment substantially limited a major life activity. Summary Judgment Reply, R.24 at 3-4, PageID#630-31.

B. District Court Decision

The district court granted summary judgment to Parts Galore. Opinion and Order (“Order”), R.25 at 11, PageID#702. As an initial matter, the court rejected Parts Galore’s argument that Harrison was not its employee. Order, R.25 at 5-7, PageID#696-98. Relying on Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 992-94 (6th Cir. 1997), in which this Court described how multiple entities may be considered a single employer for purposes of the ADA, the court concluded that Harrison could be deemed an employee of Parts Galore and Soave Enterprises. Order, R.25 at 5-7, PageID#696-98.

As for coverage under the ADA, the court recognized that Harrison was only claiming one physical limitation—her inability to kneel—and then rejected her argument that her knee impairment constituted an actual disability. Order, R.25 at 8, PageID#699. The court reached this conclusion based on its interpretation of Sixth Circuit authority as holding that “‘no reasonable jury could find that [a] knee injury substantially limits . . . any major life activity.’” Order, R.25 at 8, PageID#699 (quoting Black v. Roadway Express, Inc., 297 F.3d 445, 450 (6th Cir. 2002)) (alteration by district court). The court further reasoned that “[a]s in Black, . . . Plaintiff’s alleged inability to perform certain tasks or functions on a repeated or prolonged basis is not enough, as a matter of law, for [her] to meet the threshold requirement of proving that [she] is disabled.” Order, R.25 at 8, PageID#699 (quoting 297 F.3d at 451) (internal quotation marks omitted). The court did not address Parts Galore’s argument that Harrison had failed to present “medical evidence” in support of actual-disability coverage. See Order, R.25 at 7-9, PageID#698-700.

The court next rejected Harrison’s argument that Parts Galore regarded her as disabled. Order, R.25 at 8, PageID#699. Stating that her regarded-as argument was supported solely by the fact that Parts Galore provided her a mirror when she requested one, the court concluded that this act did not “per se” establish that Parts Galore regarded her as disabled. Order, R.25 at 8, PageID#699. The court added that, as provided in Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1106 (6th Cir. 2008), for Harrison to establish regarded-as coverage she was required to show either that: “(1) Defendants mistakenly believed that she had an impairment limiting a major life activity, or (2) Defendants mistakenly believed that an actual impairment limited a major life activity.” Order, R.25 at 8 n.3, PageID#699-700. Under this standard, the court concluded, while Harrison was impaired by her torn ACL, Parts Galore was “neither mistaken about this impairment nor believed it to limit a major life activity.” Order, R.25 at 8 n.3, PageID#699-700. Therefore, the court ruled, Harrison could not establish regarded-as coverage. Order, R.25 at 8 n.3, PageID#699-700.

Argument

I. In evaluating whether Harrison had a disability within the meaning of the ADA, the district court failed to apply the correct standards for coverage under the amended statute.

In 2008, Congress amended the ADA to broaden the coverage provided by the statute’s definition of “disability.” ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (“ADAAA”) (attached at Addendum A2); see also, e.g., Bailey v. Real Time Staffing Servs., Inc., 543 F. App’x 520, 523 (6th Cir. 2013) (same). Congress concluded that courts were defining “disability” too narrowly and as a result the ADA, as applied, was not achieving its purpose of protecting individuals with disabilities from discrimination. See generally 42 U.S.C. § 12101 note, Findings and Purposes, at § (a) (attached at Addendum A10). Accordingly, Congress amended the statute “to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA.” 42 U.S.C. § 12101 note, Findings and Purposes, at § (b)(1) (attached at Addendum A11).

Post-amendment, the ADA continues to define “disability” to include, in relevant part, “a physical or mental impairment that substantially limits one or more major life activities of such individual” and “being regarded as having such an impairment.” 42 U.S.C. §§ 12102(1)(A) (“actual disability”), 12102(1)(C) (attached at Addendum A12). However, Congress significantly altered the standards for each type of coverage.

First, because “courts had previously too heavily focused their inquiries on the question of coverage,” Congress specified that “the question of whether an individual’s impairment is a disability under the [post-amendment] ADA should not demand extensive analysis.” 42 U.S.C. § 12101 note, Findings and Purposes, at § (b)(5) (attached at Addendum A11); see also 29 C.F.R. § 1630.2(j)(1)(iii) (same) (attached at Addendum A15). Instead, “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.” 42 U.S.C. § 12101 note, Findings and Purposes, at § (b)(5) (attached at Addendum A11); see also 29 C.F.R. § 1630.2(j)(1)(iii) (same) (attached at Addendum A17).

Second, because courts had “created an inappropriately high level of limitation necessary to obtain coverage under the ADA,” Congress specified that the definition of disability “shall be construed in favor of broad coverage of individuals.” 42 U.S.C. § 12102(4)(A) (attached at Addendum A13); see also 29 C.F.R. § 1630.2(i)(2) (new ADA coverage standards are “not . . . demanding”) (attached at Addendum A16); Barlia v. MWI Veterinary Supply, Inc., 721 F. App’x 439, 445 (6th Cir. 2018) (recognizing ADAAA meant to ensure broad coverage). To achieve this goal, Congress redefined several key terms, including “substantial limitation,” “major life activity,” and “being regarded as having such an impairment.” See ADAAA § 4 (attached at Addendum A3-A5); 42 U.S.C. §§ 12102(2)(A)-(B), (3)(A)-(B), (4) (attached at Addendum A12-A13); see also ADAAA at § 2(b)(6) (ordering EEOC to revise its regulations accordingly) (attached at Addendum A3).^{^[3]} These new definitions greatly expand the scope of coverage provided by the statute.

In this case, Harrison argues that she satisfies the ADA’s definition of “disability” both because she has an impairment that substantially limits a major life activity (§ 12102(1)(A)) and because
Parts Galore regarded her as having such an impairment (§ 12102(1)(C)). In its coverage analysis, the district court made no mention of the amended ADA’s coverage standards, instead relying on the same outdated standards that Congress explicitly rejected with the ADAAA. This was error.

A. The district court erroneously relied on outdated, pre-ADAAA precedent in concluding that Harrison failed to adduce sufficient evidence of an actual disability.

The district court concluded that Harrison could not establish coverage under the first prong of the ADA’s definition of disability—that she had “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Order, R.25 at 8, PageID#699; see also 42 U.S.C. § 12102(1)(A) (attached at Addendum A12). But the district court analyzed the question in a manner inconsistent with the amended ADA, and relied on this Court’s decision in Black, which predates and is likewise incompatible with that statute. Under the proper standards, the evidence of Harrison’s medical condition is sufficient to establish, for summary judgment purposes, that her physical impairment satisfies the ADA’s definition of a disability under § 12102(1)(A).

The amended statute now states that “a major life activity . . . includes the operation of a major bodily function.” 42 U.S.C. § 12102(2)(B) (attached at Addendum A12). The revised regulations define “major bodily function[s]” to include “musculoskeletal” functions. 29 C.F.R. § 1630.2(i)(1)(ii) (attached at Addendum A16). The regulations also explain that “[i]n determining other examples of major life activities, the term ‘major’ shall not be interpreted strictly to create a demanding standard for disability.” 29 C.F.R. § 1630.2(i)(2) (attached at Addendum A16) (citing ADAAA § 2(b)(4) (Findings and Purposes)). “Whether an activity is a ‘major life activity’ is not determined by reference to whether it is of ‘central importance to daily life.’” Id.

The amended ADA also revised and relaxed the standards for establishing whether an impairment constitutes a substantial limitation, providing that the “substantially limits” requirement “shall be interpreted consistently with the findings and purposes of the [ADAAA].” 42 U.S.C. § 12102(4)(B) (attached at Addendum A13); see also 29 C.F.R. § 1630.2(j)(1)(i) (phrase “substantially limits” is to be “construed broadly in terms of extensive coverage”) (attached at Addendum A17).

Accordingly, Congress provided in the amended ADA that “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures” such as equipment, mobility devices, assistive technology, reasonable accommodations or auxiliary aids or services. 42 U.S.C. § 12102(4)(E)(i)(I), (II), (III) (attached at Addendum A13); see also 29 C.F.R. § 1630.2(j)(1)(vi) (same) (attached at Addendum A17). This was one of the principal concerns Congress had in its sights in amending the ADA. See 42 U.S.C. § 12101 note, Findings and Purposes, § (b)(2) (attached at Addendum A11).

The revised ADA regulations similarly provide that the term “substantially limits” “shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘substantially limits’ applied prior to the ADAAA.” 29 C.F.R. § 1630.2(j)(1)(iv) (attached at Addendum A17). Post-amendment, “[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii) (attached at Addendum A17). In addition, “[t]he comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.” 29 C.F.R. § 1630.2(j)(1)(v) (attached at Addendum A17); see also Barlia, 721 F. App’x at 446 (same).

In this case, as explained supra at p.5, Harrison presented evidence that in 2010 she suffered an injury to her right knee, resulting in a damaged meniscus and a torn ACL. Harrison deposition, R.23-2 at 17, 21-22, PageID#209, 213-14. Because she could not have her ACL repaired, Harrison is unable to kneel on her right knee, walk long distances, or walk over rocks, and she must use caution when walking up an incline. Harrison deposition, R.23-2 at 22, PageID#215. Under the amended ADA’s broadened standards for determining “major life activity,” this evidence is sufficient to permit a reasonable fact-finder to conclude that Harrison’s torn ACL qualifies as an impairment that affects the major life activity of musculoskeletal function. This evidence is also sufficient to satisfy the post-ADAAA relaxed standard for “substantial limitation,” given that most people in the general population are able to kneel, walk over rocks, and walk up inclines without taking any particular caution. See 29 C.F.R. § 1630.2(j) (discussing proper standard for assessing whether impairment substantially limits a major life activity).

In holding otherwise, the district court made no mention of the amended ADA. Instead, it relied exclusively on its own misinterpretation of this Court’s pre-ADAAA Black decision. Order, R.25 at 8, PageID#699. In Black, this Court affirmed a grant of summary judgment on the grounds that the plaintiff had failed to show his knee injury substantially limited him in any major life activity. 297 F.3d at 448-51. But Black, which was decided in 2002, relied heavily on pre-ADAAA standards for establishing “major life activity” and “substantial limitation”—including the standard in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that Congress expressly rejected in the ADAAA. See id. at 449-51 & n.4-8 (citing authorities); 42 U.S.C. § 12101 note, Findings and Purposes, at § (b)(4)-(6) (including among purposes of ADAAA “to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing” regarding the ADA’s requirements of substantial limitation and major life activity, and to express Congress’ expectation that the Commission will revise its regulations concerning substantial limitation) (attached at Addendum A11). Accordingly, Black’s outdated legal analysis has no bearing on whether Harrison presently may demonstrate that she is disabled under the amended ADA.

The district court further erred by interpreting Black as announcing a categorical rule precluding ADA coverage for knee impairments. According to the court, in Black this Court “previously affirmed that, although a knee injury constitutes a physical impairment, ‘no reasonable jury could find that [a] knee injury substantially limits . . . any major activity.’” Order, R.25 at 8, PageID#6699) (quoting Black, 297 F.3d at 450) (alteration by district court). But the district court misquoted Black; the passage in question, unaltered, actually states that “[t]he district court found that although Black’s knee injury constitutes a physical impairment, no reasonable jury could find that the knee injury substantially limits Black in any major life activity.” Black, 297 F.3d at 450 (emphasis added). In other words, the quoted portion of Black was simply a reiteration of the district court’s conclusion about the facts of that particular case. It was not a categorical announcement by this Court precluding knee-injury-based ADA actions.

B. The district court erred by holding that Harrison could not satisfy the amended ADA’s regarded-as definition of disability.

Prior to the ADAAA, to establish coverage under the “regarded-as” prong of the ADA’s definition of disability, a plaintiff was required to show that “(1) a covered entity mistakenly believes that [she] has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999); see also Talley, 542 F.3d at 1106 (same). “In both cases, it is necessary that a covered entity entertain misperceptions about the individual—it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.” Sutton, 527 U.S. at 489; see also Talley, 542 F.3d at 1106 (same).

With the ADAAA, however, Congress expressly rejected the Sutton standard for regarded-as coverage. See ADAAA at §§ 2(a)(4) (finding that “the holdings of the Supreme Court in [Sutton] and its companion cases have narrowed the broad scope of protection intended to be offered by the ADA, thus eliminating protection for many individuals whom Congress intended to protect”) (attached at Addendum A2), 2(b)(3) (purpose of ADAAA included “reject[ing] the Supreme Court’s reasoning in [Sutton] with regard to coverage under the [regarded-as] prong of the definition of disability”) (attached at Addendum A3).

Post-ADAAA, to establish regarded-as coverage a plaintiff need only show that the employer took action against her because of an actual or perceived impairment. The level of perceived limitation is irrelevant. The definition for regarded-as coverage now provides that “[a]n individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added) (attached at Addendum A12); see also 29 C.F.R. §§ 1620.2(j)(2) (same) (attached at Addendum A17), 1630.2(l)(1) (same) (attached at Addendum A20); Neely v. Benchmark Family Servs., 640 F. App’x 429, 435 (6th Cir. 2016) (recognizing that the ADAAA “redefine[d] ‘regarded as having an impairment’ only to require that a defendant took a prohibited action based on a perceived impairment, regardless of whether the employer thought the impairment was substantially limiting”).

Here, Harrison’s evidence squarely meets the correct regarded-as standard. She testified that on August 26, 2015, Murell informed her that he was firing her because, as a result of her ACL injury, she could not perform all her job duties—specifically because she was not performing the five-car spot-checks. Harrison Deposition, R.23-2 at 128, 146, PageID#321, 339. Viewed in the light most favorable to Harrison, as required on summary judgment, this evidence establishes that Parts Galore subjected her to an action prohibited under the ADA because of her actual or perceived impairment.[4] See also Baum v. Metro Restoration Servs., Inc., No. 18-5699, 2019 WL 1569741, at *3 (6th Cir. Apr. 11, 2019) (reversing summary judgment as to plaintiff’s ADA regarded-as-disabled claim; plaintiff’s testimony that employer stated it fired him because of his “health issues and doctor’s appointments” was sufficient, if believed by the jury, to establish both coverage and liability).

The district court reached the opposite conclusion by, again, applying outdated standards the ADAAA rejected. See Order, R.25 at 8 n.3, PageID#699 (citing Talley, 542 F.3d at 1106, for the proposition that, “[t]o prove that a plaintiff is regarded as disabled, she must either show that: (1) Defendants mistakenly believed that she had an impairment limiting a major life activity, or (2) Defendants mistakenly believed that an actual impairment limited a major life activity”). In so doing, the district court erred.

II. The ADA does not require “medical evidence” to establish that an impairment substantially limits one or more major life activities.

While the district court did not reach the issue in its summary judgment ruling, Parts Galore argued that Harrison’s ADA claim should be dismissed because she did not submit “medical evidence” showing either that she has a torn ACL or that her condition substantially limits a major life activity. Summary Judgment Reply, R.24 at 6, PageID#630 (citing Neely, 640 F. App’x at 433; Minnix v. City of Chillicothe, No. 98-4285, 2000 U.S. App. LEXIS 2099 (6th Cir. 2000); Leader v. Venture Indus. Corp., No. 97-cv-76021, 1999 U.S. Dist. LEXIS 15947 (E.D. Mich. 1999). Parts Galore is incorrect. Post-ADAAA, establishing that an individual has an impairment, and that such impairment substantially limits a major life activity, does not usually require “medical evidence.”

The post-ADAAA regulations provide that “[a]n impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii) (attached at Addendum A17). The regulations further clarify that for purposes of determining whether an impairment substantially limits the individual in a major life activity, “[t]he comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.” 29 C.F.R. § 1630.2(j)(1)(v) (attached at Addendum A17) (emphasis added); see also Barlia, 721 F. App’x at 446 (same). Parts Galore fails to acknowledge the effect of this ADA regulation on its contention that Harrison was required to present “medical evidence” to establish substantial limitation.

Nor does any “medical evidence” requirement attach to the burden of showing that the individual has an impairment. In relevant part, the ADA regulations define an “impairment” as “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as . . . musculoskeletal.” 29 C.F.R. § 1630.2(h).

Neither the statute nor the regulations impose a heightened evidentiary burden upon plaintiffs to provide specific “medical evidence” of their impairment. This is consistent with the stated purpose of the ADAAA to counteract courts’ overly strict interpretations of the ADA’s coverage requirements, and to clarify that “the question of whether an individual’s impairment is a disability under the [post-amendment] ADA should not demand extensive analysis.” 42 U.S.C. § 12101 note, Findings and Purposes, at § (b)(5) (attached at Addendum A11). A heightened requirement of “medical evidence” to show an impairment would contradict Congress’ express intent. It would also conflict with this Court’s recognition that a medical diagnosis is not categorically necessary to establish an impairment in an ADA case.[5] Neely, 640 F. App’x at 435.

Parts Galore relied on Neely to support its assertion that “medical evidence” is required, but that decision provides no such support. In Neely, the plaintiff claimed to suffer from sleep apnea, but medical testing had ruled out various physiological causes for his sleep problems and did not yield a diagnosis of sleep apnea, and he had declined further testing. Neely, 640 F. App’x at 433-34. It was against this backdrop that this Court stated, “‘[w]hile a diagnosis might not be absolutely necessary [to establish a record of impairment], in this situation, some diagnosis must explain the duration or severity of the impairment.’ We therefore hold that Neely’s self-described symptoms to his physicians, without corroborating medical evidence or any diagnosis are insufficient to establish a substantial limitation on a major life activity.” Id. at 435 (emphasis added, internal citation omitted).

Accordingly, Neely does not stand for the proposition that an ADA plaintiff’s testimony about her condition is inadequate to establish impairment or substantial limitation. This is particularly so in cases like this one, where Harrison provided detailed deposition testimony regarding the cause of her injury giving rise to her impairment; her discussions with her physician regarding the injury and the possibility of surgery to repair the injury; her physical rehabilitation; and the long-term limitations the impairment causes for her. See Harrison deposition, R.23-2 at 17-22, PageID#210-15.

The other cases cited by Parts Galore are inapposite, as they predate and have been superseded by the amended ADA, and otherwise do not support Parts Galore’s assertion that medical evidence is required to show an impairment. See Minnix, 205 F.3d 1341, 2000 WL 191828 (pre-ADAAA); Leader, 1999 U.S. Dist. LEXIS 15947 (pre-ADAAA).

III. The district court applied the correct legal standard in determining that Parts Galore and Soave Enterprises

were Harrison’s employer.

Parts Galore argued on summary judgment—without any citation to supporting authority—that Harrison could not establish that Parts Galore or Soave Enterprises was her employer, as a matter of law, based on her “admi[ssion]” that she was employed by Ferrous Processing and Trading Company. Summary Judgment Motion, R.22 at 15, PageID#80. The district court rejected Parts Galore’s minimalist argument, recognizing that “[a]lthough [Harrison] testified that [Ferrous Processing and Trading Company] was her employer, companies can be so intertwined that they constitute a single employer.” Order, R.25 at 5, PageID#696.

The district court applied the correct legal standard to the employer liability question presented, following Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 992-94 (6th Cir. 1997). Order, R.25 at 5-7, PageID#696-98. Swallows is controlling authority in this circuit on the question of how courts should determine whether multiple entities constitute a single, “integrated enterprise” for purposes of liability as an employer under the ADA. In Swallows, this Court identified four factors courts should examine: “(1) interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment; (2) common management, common directors and boards; (3) centralized control of labor relations and personnel; and (4) common ownership and financial control.” 128 F.3d at 994 (citing York v. Tenn. Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir. 1982)). While “[n]one of these factors is conclusive, and all four need not be met in every case,” “control over labor relations is a central concern.” Id. (citations omitted); see also Sanford v. Main St. Baptist Church Manor, Inc., 449 F. App’x 488, 493 n.5, 495 (6th Cir. 2011) (recognizing Swallows as controlling authority on the question of “single employer” or “integrated enterprise” employer liability—terms used interchangeably for the same doctrine, which is “analytically distinct” from the “joint employer” doctrine). The question of which entities were named in Harrison’s contract has no bearing on any of the Swallows integrated enterprise factors, which focus on the relationship between corporate entities. See Swallows, 128 F.3d at 994.

Conclusion

For the foregoing reasons, the EEOC respectfully requests that this Court vacate the district court’s grant of summary judgment to the defendants and remand the case for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

Attorneys for amicus curiae

Equal Employment

Opportunity Commission

[1] For the sake of simplicity, we refer to the defendants collectively as “Parts Galore.”

[2] Harrison asserted in her complaint that her “disabilities” are her torn ACL and that she is “medically obese.” Complaint, R.1 at 3, PageID#3. On summary judgment, however, Harrison made no argument that her obesity constituted a disability under the ADA. See generally summary judgment response, R.23, PageID#170-91.

[3] In the ADAAA, Congress authorized the Commission to issue regulations “implementing the definitions of disability in section 12102 of this title (including rules of construction).” 42 U.S.C. § 12205a (attached at Addendum A14). See also Summers v. Altarum Inst., Corp., 740 F.3d 325, 331-33 (4th Cir. 2014) (affording deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), to the Commission’s regulations on the revised definition of disability).

[4] Under the amended ADA, the regarded-as theory of coverage may serve as a basis for Harrison’s unlawful termination claim but not her failure-to-accommodate claim. See 29 C.F.R. §§ 1630.2(l)(1) (attached at Addendum A20) (including termination as an action prohibited under the regarded-as definition of disability), 1630.9(e) (attached at Addendum A21) (“A covered entity . . . is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the ‘regarded as’ prong (§ 1630.2(g)(1)(iii)).”).

[5] In Baum, this Court reiterated that the amended ADA and its implementing regulations “set a low bar for proving actual disability.” No. 18-5699, 2019 WL 1569741, at *2 (6th Cir. Apr. 11, 2019); see also id. (noting that “the substantial-limitation inquiry ‘usually will not require scientific, medical, or statistical analysis’” (citing 29 C.F.R. § 1630.2(j)(1)(v))). This Court ruled that, due to the rarity and complexity of the plaintiff’s heart condition and his medical records, an expert witness was required to make that evidence understandable to a jury. Id. at *2-*3. There is no suggestion in Baum that this Court intended for the exception it permitted there to swallow the general rule applicable to most ADA cases, including the common knee problems Harrison experienced due to her torn ACL. See generally id.