Burdett-Foster v. Blue Cross Blue Shield of Michigan,
574 F. App’x 672 (6th Cir. 2014)......................................................10, 14, 15

Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)...........28, 30

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002) No. 915-002 (Oct. 17, 2002),

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is charged by Congress with the administration, interpretation, and enforcement of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. In this appeal, the plaintiff challenges the district court’s dismissal of his ADA discrimination and retaliation claims arising from his employer’s repeated denials of his request for a reasonable accommodation, and from his constructive discharge. The plaintiff’s appeal raises important questions concerning whether the plaintiff’s depression and anxiety rendered him disabled under the ADA and whether his request, as a traveling business analyst, for a four-day workweek with eight hours per night in a hotel room constituted a request for a reasonable accommodation. Additionally, this appeal raises the question of whether the plaintiff suffered an adverse action in the form of a constructive discharge and whether the plaintiff’s requests for accommodation due to his anxiety and depression constituted protected activity under the ADA’s anti-retaliation provision. Because these issues are important to the effective enforcement of the ADA, the Commission respectfully offers its views to the Court. See Fed. R. App. P. 29(a).

1. Whether the plaintiff’s acute anxiety and major depression rendered him disabled under the ADA.

2. Whether the court erred in granting summary judgment on the plaintiff’s failure-to-accommodate claim where a jury could find that the employer knew of the plaintiff’s disability but denied his request, as a traveling business analyst, for a four-day workweek with eight hours per night in a hotel room to sleep and refused to engage in the interactive process.

3. Whether the court erred in holding that a constructive discharge is not an adverse discriminatory action, and whether a jury could find that the defendant constructively discharged the plaintiff based on his disability by refusing to accommodate him or to engage in the interactive process, and/or by drastically changing the terms of his compensation days after he requested leave for anxiety and depression.

4. Whether the plaintiff engaged in protected activity under the ADA’s anti-retaliation provision when he requested reasonable accommodation and submitted a leave request under the Family and Medical Leave Act (FMLA) for his anxiety and depression, and whether his constructive discharge constituted an adverse retaliatory action.

Defendant International Services, Inc. (“ISI”) provides management and tax consulting services to small and medium businesses. PageID#836 (Andes Dep.5, R.46-2). Plaintiff Robert Hurtt worked for ISI as a management/sales analyst from 2007 to 2010. PageID#1081 (Hurtt Dep.26-27, R.46-10). He left the company due, in part, to the extensive travel required. PageID#1059 (P.Hurtt Dep.48-49, R. 46-9). In September 2011, ISI’s Survey Services Director, Donna Brewer, recruited Hurtt to return as a Senior Business Analyst. PageID#862-63 (Brewer Dep.4-6, R.46-3). ISI flew Hurtt out to meet with Brewer and with John Burgess, ISI’s owner and managing director, and with Tyler Burgess, his son. PageID#891 (J.Burgess Dep.4, R.46-4); PageID#1093 (Hurtt Dep.77, R.46-10).

After the meeting, Brewer agreed to give Hurtt: (1) a twelve percent commission, which is a rate reserved “for very top analysts”; (2) a $70,000/year “draw”; (3) payment for hotel and car rentals; and (4) a $40/day per diem for food. PageID#864, #866 (Brewer Dep.11, 18, R.46-10); PageID#1130 (9/23/11 Memo., R.46-11). Tyler Burgess also agreed that the “draw” would be “forgivable,” meaning that if Hurtt made commission income above $70,000 he would keep the difference, but if he made less than that, he would not have to repay the $70,000. PageID#1148 (9/5/12 conversation, R.46-16); PageID#1127 (Hurtt Dep.210-11, R.46-10). Brewer also agreed to give Hurtt a four-day workweek with two assignments per week (meaning Hurtt would travel to two locations per week), which is a schedule she had provided other analysts. PageID#1094 (Hurtt Dep.78, R.46-10). In fact, fifteen percent of ISI’s analysts enjoyed a four-day workweek with two assignments. PageID#898 (J.Burgess Dep.32, R.46-4).

Soon after Hurtt’s return, however, ISI reneged on its promise of a four-day workweek with only two assignments. PageID#1096-97 (Hurtt Dep.89-90, R.46-10). Hurtt again found himself traveling extensively with little time for sleep. Id. “It got to the point where [he] would be traveling [until] 1:00, 2:00 in the morning . . . and then trying to function the next day.” PageID#1096 (Hurtt Dep.89, R.46-10). “[O]ftentimes” Hurtt received only “three, four hours of sleep, or in a hotel.” PageID#1097 (Hurtt Dep.91, R.46-10). Hurtt’s blood pressure rose and he had to resort to using sleeping pills, which gave him migraines. R.46, Ex.7 (Sealed 4/2/12 email).

On March 5, 2012, Hurtt sent Brewer a note from Dr. Pamela Littles documenting hypertension, chronic cough, upper respiratory infection, dizziness, sinusitis, and mental fatigue (consisting of confusion and forgetfulness), and recommending sleep hygiene and time off from travel. R.46, Ex.3 (Sealed 3/5/12 email, R.47-3). Hurtt asked Brewer for eight hours in a hotel at night so he could sleep. PageID#1110 (Hurtt Dep.143, R.46-10). Brewer interpreted the doctor’s note as meaning Hurtt had a cold, and at some point she told him to “get [his] dick out . . . and toughen up.” PageID#877 (Brewer Dep.63, R.46-3); PageID#1099 (Hurtt Dep.99, R.46-10).

In March 2012, after Brewer threatened that ISI would take away his “guarantee” (the $70,000/year salary), Hurtt attempted suicide. R.46, Ex.6 (Sealed 4/2/12 email exchange, p.1)²; PageID#1095 (Hurtt Dep.83-85, R.46-10). On March 19, 2012, Hurtt saw a psychiatrist, Dr. Chung, who noted that Hurtt presented as “depressed, mood changes, irritable, troubled sleep” and as possibly having attempted suicide. R.46, Ex.5 (Sealed 3/19/12 Assessment, p.1, R.47-5). Dr. Chung diagnosed Hurtt with “Axis IV (Psychosocial Stressors)” as “severe” and gave him a “50” for his “Axis V (Global Assessment),” which means “severely impaired” functioning. Id. at p.5; PageID#1043 (Taylor Dep.64). On April 2, 2012, Hurtt told Brewer that after ISI threatened to pull his guarantee he “had a nervous breakdown” and attempted suicide, and he restated his need for sleep. R.46, Ex.6 (Sealed 4/2/12 text messages). Although Brewer took Hurtt off an assignment for the next week, she repeated that ISI wanted to pull his guarantee. Id. Hurtt responded that without the guarantee, “I’m done. The jobs do not support a decent income at th[at] point.” Id.

According to Hurtt, on a weekly, if not daily, basis he asked Brewer to adhere to their “original agreement of four days, two assignments, and reasonable travel” because “I got to sleep.” PageID#1097 (Hurtt Dep.90-91, R.46-10). Hurtt requested reasonable travel “over and over”; it was a “weekly battle.” PageID#1127 (Hurtt Dep.212, R.46-10); PageID#1097 (Hurtt Dep.90, R.46-10).

Following his suicide attempt, Hurtt received mental health treatment. PageID#1108 (Hurtt Dep.136, R.46-10). He visited several times with a counselor named Joseph Taylor. PageID#1038 (Taylor Dep.42-43, R.46-8). Taylor noted that Hurtt had been experiencing depression and anxiety and had considered suicide. PageID#1034 (Taylor Dep.26-29, R.46-8). In May 2012, Hurtt began seeing Dr. Melissa Sharnowski, a clinical psychologist. R.46, Ex.9 (Sealed Sharnowski notes, R.47-7). Her notes indicate that Hurtt suffered from sleep dysfunction, depression, decreased concentration, and fatigue. See id. at pp.1-2. On a few occasions, Hurtt also saw a psychiatrist, who prescribed medication. PageID#1107 (Hurtt Dep.130-31, R.46-10). Hurtt continued to see his primary care doctor as well; the June 25, 2012 record of one visit notes Hurtt’s depression, suicide attempt, fatigue, and sleep disturbance and states that Hurtt “has the symptoms of a major depressive episode.” R.46, Ex.10 (Sealed Bawaney notes, R.47-8). According to Hurtt, his depression and anxiety substantially limited his ability to concentrate, sleep, think, and work. PageID#1096 (Hurtt Dep.86, R.46-10).

On Saturday, September 1, 2012, Hurtt saw Dr. Sharnowski. She wrote a letter stating that Hurtt “suffered from acute anxiety and depression” and was unable to work until September 5, 2012. R.46, Ex.11 (Sealed 9/1/12 Sharnowski Letter). The letter recited Hurtt’s diagnosis of “Axis I: Acute Stress Disorder, 308.3 and Major Depressive Disorder, Recurrent, 296.32.” Id. Dr. Sharnowski further stated that Hurtt might require additional time off over the next nine to twelve months and that she had advised him to seek information about FMLA leave. Id. Hurtt submitted the letter to ISI. PageID#1101 (Hurtt Dep.107-09, R. 46-10). Because of the Labor Day holiday, Hurtt needed only Tuesday, September 4, 2012, off from work. On September 4, Hurtt submitted an FMLA request for intermittent leave for periods when his acute anxiety or depression flared up. R.46, Ex.12 (Sealed FMLA Leave packet, R.47-10).

The next day, ISI terminated Hurtt’s $70,000/year guaranteed salary and replaced it with a straight commission, making him indebted immediately to ISI for $22,731 in advanced, unearned commissions; terminated his prepaid expenses; and told him he would have to front 100% of the costs for travel and then submit the costs for reimbursement. PageID#883 (Brewer Dep.87-88, R.46-3); PageID#1145 (9/5/12 conversation, R.46-15). This was the first time Brewer told Hurtt he owed ISI money. PageID#1112 (Hurtt Dep.152, R.46-10). ISI made the changes retroactive to September 1, 2012. PageID#1147 (9/5/12 conversation, R.46-15). Hurtt never returned to work.

Hurtt subsequently filed suit against ISI under the ADA. He alleged that he suffered from physical and mental impairments that substantially limited his performance of major life activities, including thinking, concentrating, sleeping, and working, and that ISI denied his request for the reasonable accommodation of a more reasonable travel schedule and failed to engage in the interactive process. PageID#198-99 (Compl. ¶¶ 24-31, R.25). Hurtt also alleged that ISI constructively discharged him based on his disability and in retaliation for having engaged in protected conduct. PageID#199-200 (Compl. ¶¶ 31, 41, R.25).

The district court granted ISI’s motion for summary judgment. As to the discriminatory discharge claim, the court held that Hurtt had not suffered an adverse employment action. PageID#1224-25 (opinion, R.50). The court acknowledged Hurtt’s argument that he had been constructively discharged by ISI’s refusal to accommodate him “with regards to work travel arrangements and because he took leave on September 4, 2012.” PageID#1225 (opinion, R.50). But, the court said, Hurtt admitted that ISI allowed him to take leave on September 4. Id. Relying on Regan v. Faurecia Automotive Seating, Inc., 679 F.3d 475 (6th Cir. 2012), the district court further held that the ADA does not require an employer to accommodate “an employee’s request for more convenient hours” and that “a plaintiff cannot use a claim of constructive discharge to establish an adverse employment action.” Id. Therefore, the court held, Hurtt failed to establish a prima facie case of discrimination. Id. The court did not separately address Hurtt’s failure-to-accommodate claim, although the court’s ruling that ISI had no duty to accommodate Hurtt’s request for a more reasonable travel schedule effectively foreclosed that claim.

The court also granted summary judgment on the retaliation claim, holding that Hurtt had not suffered any “adverse employment action” and had not engaged in protected activity. PageID#1227 (opinion, R.50).³ The court reasoned that Hurtt’s submission of Dr. Sharnowski’s letter did not constitute protected activity because ISI allowed Hurtt to take leave on September 4, 2012, and because “the activity of taking a leave is not the type of protected activity set forth in a retaliation claim.” PageID#1227-28 (opinion, R.50).

The district court erred in granting summary judgment on Hurtt’s ADA discrimination and retaliation claims.

The ADA prohibits employers from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12112(a). Discrimination includes failing to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” absent undue hardship. 42 U.S.C. § 12112(b)(5)(A). The ADA also prohibits employers from discriminating against employees who engage in protected activity. 42 U.S.C. § 12203(a).

In this case, the district court granted summary judgment on Hurtt’s discrimination and retaliation claims on the ground that Hurtt did not suffer an adverse action and, as to the retaliation claim, that Hurtt had not engaged in protected activity. The court erred. Viewed under the proper legal standards for evaluating ADA discrimination and retaliation claims, Hurtt’s evidence sufficed to establish a prima facie case of failure-to-accommodate, discriminatory termination, and retaliatory termination. Accordingly, summary judgment should be reversed.

A plaintiff seeking to establish a prima facie case of failure to accommodate or disability discrimination must show he was disabled. See Burdett-Foster v. Blue Cross Blue Shield of Michigan, 574 F. App’x 672, 680 (6th Cir. 2014) (failure to accommodate); Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008) (discrimination). The district court did not address whether Hurtt was disabled. The Commission addresses this threshold issue, however, because ISI argued below that Hurtt’s impairments did not render him disabled and because ISI may renew this argument on appeal.

The ADA defines “disability” as, inter alia, a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). When Congress enacted the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), it amended the statute to emphasize that “disability” should be “construed in favor of broad coverage.” 42 U.S.C. § 12102(4)(A). Major life activities include sleeping, concentrating, thinking, and working. 42 U.S.C. § 12102(2)(A). Major life activities “also include[] the operation of a major bodily function, including . . . functions of the brain.” 42 U.S.C. § 12102(2)(B).

The Commission’s regulations, which this Court has called “reasonable,” expound on the meaning of “disability.” Wysong v. Dow Chemical Co., 503 F.3d 441, 450 n.5 (6th Cir. 2007). Pursuant to 29 C.F.R. § 1630.2(h)(2), psychological disorders such as “mental illness” can constitute an impairment. Mirroring the statute, the Commission’s regulations also list sleeping, concentrating, thinking, and working as major life activities. 29 C.F.R. § 1630.2(h)(2)(i). Also in accord with the statute, the regulations state that “substantially limits” should be “construed broadly in favor of expansive coverage” and “is not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i). The regulations further state that “[a]n impairment is a disability . . . 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). A plaintiff need not show that the impairment “prevent[s]” or “significantly or severely restrict[s]” the major life activity. Id. The “substantially limiting” standard is less demanding than the standard “applied prior to the ADAAA.” 29 C.F.R. § 1630.2(j)(1)(iv).

Although the “substantially limiting” inquiry requires an individualized assessment, 29 C.F.R. § 1630.2(j)(1)(iv), the Commission’s regulations provide that “some types of impairments will, in virtually all cases, result in a determination” of actual disability, meaning that the “necessary individualized assessment should be particularly simple and straightforward.” 29 C.F.R. § 1630.2(j)(3)(ii). “[M]ajor depressive disorder” is an impairment that will “in virtually all cases” result in a finding of actual disability, as it “substantially limit[s] brain function” and may substantially limit other major life activities. 29 C.F.R. § 1630.2(j)(3)(iii).

Hurtt argued that both his physical and mental impairments substantially limited his major life activities of thinking, concentrating, sleeping, and working. The district court acknowledged as much, stating that Hurtt asserted that he experienced “severe mental, physical and emotional distress, including increased blood pressure” and that he told ISI about his poor health and suicide attempt. Thus, although the court did not discuss whether Hurtt was disabled, the court seemed to allow that Hurtt submitted evidence from which a jury could find that either his physical and/or mental impairments rendered him disabled.

The Commission agrees with this implicit holding: a reasonable jury could find that Hurtt’s mental impairments of depression and acute anxiety substantially limited him in thinking, concentrating, sleeping, and/or working, rendering him disabled. Although Hurtt did not allege explicitly that he was substantially limited in the major life activity of brain function, pursuant to the Commission’s regulations, major depression is a mental impairment that “will, in virtually all cases, result” in a determination of disability, as it substantially limits brain function. 29 C.F.R. § 1630.2(j)(3)(iii). Here, Hurtt offered undisputed evidence that he suffered from major depression and acute anxiety and even attempted suicide. Specifically, the record reflects that over the course of seven months Hurtt saw a psychiatrist, a counselor, his primary care doctor, and a psychologist, who all documented his depression and anxiety as well as his disturbed sleep and fatigue. Hurtt’s primary care doctor noted in June 2012 that Hurtt was suffering a “major depressive episode,” and Dr. Sharnowski diagnosed Hurtt with “acute stress disorder” and “major depressive disorder” and observed that because of his “acute anxiety and depression” he was “not able to perform daily work activities.” See, infra, at pp.6-7. This evidence would more than suffice to allow a reasonable jury to find that Hurtt’s depression and acute anxiety substantially limited his ability to think and concentrate—which are related to “brain function”—as well as his ability to sleep and/or work. See generally Burdett-Foster, 574 F. App’x at 680 (in ADAAA case, assuming the plaintiff’s depression constituted a disability).

Because major depression virtually always will be substantially limiting as to brain function, and a plaintiff need show a substantial limitation as to only one major life activity, Hurtt may not need to resort to showing a substantial limitation of working. See generally 29 C.F.R. pt. 1630, App. § 1630.2(j) (stating that individuals will typically be able to establish coverage through a substantial limitation of a major life activity other than working; for instance, a police officer who previously alleged his major depression substantially limited him in working would “now be substantially limited in brain function”); 42 U.S.C. § 12102(1)(A) (impairment that “substantially limits one or more major life activities” constitutes a disability) (emphasis added). The evidence in this case, however, would be sufficient for a jury to find under the ADAAA’s broad definition of disability that Hurtt’s major depression and acute anxiety substantially limited his ability to work. Cf. Allen v. BellSouth Telecomm., Inc., 483 F. App’x 197, 200 (6th Cir. 2012) (in pre-ADAAA case, holding that the plaintiff’s depression did not substantially limit her in working).

“A prima facie failure-to-accommodate case requires a plaintiff to show that: (1) she is disabled under the meaning of the ADA; (2) she is otherwise qualified; (3) the employer knew or had reason to know of her disability; (4) she requested an accommodation; and (5) the employer failed to provide the necessary accommodation.” Burdett-Foster, 574 F. App’x at 680. Once a plaintiff proposes an accommodation that is objectively reasonable, the defendant bears the burden of showing that providing the accommodation would impose an undue hardship. Id.; see also Talley, 542 F.3d at 1108.

The ADA lists “modified work schedules” as a type of reasonable accommodation. 42 U.S.C. § 12111(9)(B); see also 29 C.F.R. § 1630.2(o)(2)(ii) (same). Consistent with the text of the ADA, the Commission’s regulations further define “reasonable accommodation” as including modifications “to the work environment, or to the manner or circumstances” under which a position is customarily performed that enable a qualified individual with a disability “to perform the essential functions” of his job or “to enjoy equal benefits and privileges of employment.” 29 C.F.R. § 1630.2(o)(1)(ii)-(iii). Determination of the appropriate reasonable accommodation may require the employer “to initiate an informal, interactive process with the individual with a disability.” 29 C.F.R. § 1630.2(o)(3).

As discussed above, a jury could find Hurtt was disabled, satisfying the first prong of the prima facie case. ISI has not seemed to genuinely dispute the second prong, that Hurtt was qualified, or the third prong, that it failed to provide the requested accommodation. ISI argued below, however, that it lacked notice of Hurtt’s disability and that his requested accommodation of a modified travel schedule with eight hours per night in a hotel was not reasonable. PageID#541 (SJ motion, R.43). ISI’s arguments lack merit.

A reasonable jury could find that ISI had notice of Hurtt’s mental disability and need for a four-day workweek with eight hours per night in a hotel to sleep to accommodate his disability. A jury could reach this finding based on Hurtt’s submission of the March 5, 2012, note from Dr. Littles documenting his mental fatigue, confusion, and forgetfulness, and his need for rest and time off from travel. R.46, Ex.3 (Sealed 3/5/12 note, R.47-7). Additionally, as the district court noted, Hurtt told Brewer of his March 2012 suicide attempt. PageID#1221 (opinion, R.50); R.46, Ex.6 (Sealed 4/2/12 text messages). While this Court has said that “[k]nowledge of an employee’s symptoms . . . does not necessarily equate to knowledge of his disability,” this Court has also recognized that when an employee’s “symptoms [a]re severe enough to alert [the employer] that [the plaintiff] had a disabling condition,” a factfinder can conclude that the employer knew of the disability “or at least had some generalized notion that it existed.” Nilles v. Givaudan Flavors Corp., 521 F. App’x 364, 369 (6th Cir. 2013). Here, a jury could find that Hurtt’s disability was obvious, given his suicide attempt. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (“[A]n employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled.”).

A reasonable jury could also find that Hurtt notified ISI of his need for an accommodation of a four-day workweek with two assignments and eight hours per night in a hotel room to sleep. See Talley, 542 F.3d at 1108 (plaintiff bears the initial burden of notifying employer of a need for accommodation). An employee requesting an accommodation may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.” See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), at Q/A # 1 (employee “must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition”), available at http://eeoc.gov/policy/docs/accommodation.html. For example, an employee who tells her supervisor she needs six weeks off to treat a back problem has requested an accommodation, as has an employee who informs his supervisor he is “having trouble getting to work at [his] scheduled starting time because of medical treatments.” Id.

The district court acknowledged that Hurtt informed ISI “that his health was suffering” and that his doctor instructed that he receive necessary rest. PageID#1221 (opinion, R.50). Additionally, Hurtt testified that he asked Brewer on a weekly, or even daily, basis to return to their original agreement of four-day workweeks with two assignments and “reasonable travel” because he needed to sleep. PageID#1097 (Hurtt Dep.90-91, R.46-10). A jury could infer easily that ISI had notice that Hurtt required the accommodation to address his mental impairments of acute anxiety and depression, given that Hurtt stated his need for sleep in the same April 2, 2012, chain of text messages wherein he told Brewer of his suicide attempt. See generally Smith v. Henderson, 376 F.3d 529, 535 (6th Cir. 2004) (factfinder could infer that plaintiff’s letter requesting the delegation of some job duties constituted a request for an accommodation where the employer knew of her disability and need to work restricted hours).

Contrary to the district court’s conclusion, a jury could find that giving Hurtt four-day workweeks with two assignments and eight hours per night in a hotel constituted an objectively reasonable accommodation. The ADA recognizes explicitly that a “modified work schedule[]” is a reasonable accommodation, absent undue hardship. 42 U.S.C. § 12111(9)(B); see also Enforcement Guidance at Q/A # 22 (“[A] modified schedule may involve adjusting arrival or departure times.”). A jury could find that four-day workweeks with two assignments was reasonable, as these are the very terms ISI agreed to as a condition of Hurtt’s return to the company. In fact, a jury would be almost compelled to find Hurtt’s requested accommodation reasonable, as ISI’s owner and managing director, John Burgess, admitted that fifteen percent of ISI’s analysts worked four-day weeks with two assignments per week. PageID#898 (Burgess Dep.32, R.46-4). See Smith, 376 F.3d at 536 (evidence that the employer had allowed the plaintiff’s predecessors to delegate accounting duties raised a fact question as to whether reassigning the plaintiff’s accounting duties would be a “reasonable” accommodation). A jury could also find that scheduling Hurtt two assignments per week so he had eight hours per night in a hotel was a reasonable accommodation.

In reaching a contrary result and holding that ISI had no obligation to modify Hurtt’s work schedule, the district court relied on this Court’s decision in Regan, 679 F.3d at 480-81. In Regan, this Court held that the ADA did not require the employer to accommodate the plaintiff’s request for a commute during more convenient hours when the traffic might be lighter. Id. at 480. Here, Hurtt did not ask for a commute during more convenient hours. Rather, Hurtt—a traveling business analyst—requested a change in the work hours themselves, i.e., a change that would allow him to work four days a week with eight hours per night in a hotel. Thus, Regan is not controlling.

To the contrary, Smith, 376 F.3d 529, controls this case and compels the conclusion that Hurtt raised a fact question as to whether his proposed accommodation was objectively reasonable. In Smith, the plaintiff requested a forty-hour workweek with eight-hour days to accommodate her rheumatoid arthritis. Although the defendant initially accommodated her, after her promotion the defendant required the plaintiff to work ten to twelve hours per day, often without any days off and for weeks at a time. Id. at 534. The plaintiff eventually quit and brought suit under the Rehabilitation Act for constructive discharge based, inter alia, on the failure to accommodate her work-hour restrictions. Id. On appeal, this Court reversed summary judgment, holding that a jury could find that shortening the plaintiff’s hours, or reassigning some of her duties to reduce her workload and thereby shorten her hours, “would have constituted ‘reasonable’ accommodations.” Id. at 537. Like the plaintiff in Smith, Hurtt requested that his employer accommodate his disability by shortening his work hours and modifying his schedule. As in Smith, then, a jury would be entitled to find that four-day workweeks with eight hours per night in a hotel constituted a reasonable accommodation, which the ADA obligated ISI to provide in the absence of undue hardship.

A jury could also find that ISI failed to engage in the interactive process. This Court has said that an employee’s request for a reasonable accommodation triggers the employer’s mandatory duty “to participate, in good faith, in an ‘interactive process’ with [a plaintiff] as to potential reasonable accommodations.” Smith, 376 F.3d at 536 (quoting 29 C.F.R. § 1630.2(o)(3)); see also Talley, 542 F.3d at 1110 (“[T]he interactive process is mandatory and both parties have a duty to participate in good faith.”).

Here, a jury could find that ISI failed to engage in the interactive process at all, much less in good faith. The record shows that Brewer ignored Hurtt’s requests for a four-day workweek and eight hours per night in a hotel room. The record is devoid of any evidence that ISI tried to set up a meeting with Hurtt to discuss his requested accommodation or that ISI made any other overture to Hurtt. Further, if ISI felt that it needed more information about Hurtt’s medical condition—as ISI suggested below—then ISI could have requested that information during the interactive process. See Enforcement Guidance at Q/A # 1 (stating that in some instances, an employer may need to determine if the individual’s medical condition qualifies as a disability before determining entitlement to an accommodation), Q/A # 6 (discussing when an employer may ask for documentation about the disability). But ISI never requested more information, or any information at all, meaning that a jury could find that ISI failed to meet its mandatory duty to engage in the interactive process. See Talley, 542 F.3d at 1110 (fact question existed as to who caused the breakdown in the interactive process where the employer failed to set up promised meetings to discuss the plaintiff’s requests for a stool and did not return her calls asking about it).

To establish a prima facie case of disability discrimination, a plaintiff must show that he was a qualified individual with a disability and “suffered an adverse employment action due to h[is] disability.” Talley, 542 F.3d at 1107. Contrary to the district court’s ruling below, this Court’s precedent makes clear that a constructive discharge constitutes an adverse action. Because Hurtt adduced evidence that would allow a jury to find ISI constructively discharged him, the court erred in granting summary judgment on his discriminatory discharge claim.

The district court plainly erred in holding that “[a] plaintiff cannot use a claim of constructive discharge to establish an adverse employment action.” PageID#1225 (opinion, R.50). This Court has held repeatedly that a constructive discharge constitutes an adverse action. See Talley, 542 F.3d at 1107-10 (reversing summary judgment on the plaintiff’s ADA constructive discharge claim); Smith, 376 F.3d at 533-38 (reversing summary judgment on plaintiff’s constructive discharge claim under the Rehabilitation Act). In reaching a contrary conclusion, the district court again cited this Court’s decision in Regan, 679 F.3d at 480-81. The district court misread Regan. In Regan this Court held merely that the plaintiff had failed to satisfy the constructive discharge standard, not that a constructive discharge is not an adverse employment action. See id. at 482 (holding that the plaintiff failed to show the defendant deliberately created intolerable working conditions).

Unlike in Regan, in this case Hurtt offered evidence establishing a fact question as to whether ISI constructively discharged him. To establish a constructive discharge, a plaintiff must adduce evidence that: (1) the employer deliberately created working conditions so intolerable that a reasonable person would have resigned; (2) the employer intended to make the employee quit; and (3) the employee did quit. See Regan, 679 F.3d at 481. Because it is undisputed that Hurtt did quit, only the first and second elements are contested.

A reasonable jury could easily find that a reasonable person in Hurtt’s position would have felt compelled to resign and that ISI intended to make Hurtt quit, satisfying the standard. Although not every failure to provide a reasonable accommodation gives rise to a constructive discharge, this Court has held that when an employer repeatedly denies a plaintiff’s request for accommodation and fails to offer a reasonable alternative, “a jury may conclude that the employee’s resignation was both intended and foreseeable.” Talley, 542 F.3d at 1109. Thus, in Talley this Court held that a jury could find that the employer constructively discharged the plaintiff by repeatedly denying her request to use a stool to accommodate her osteoarthritis and by failing to discuss alternatives, forcing her to choose between working in severe pain or quitting. Id. Similarly, in Smith this Court held that a jury could find that the plaintiff was constructively discharged where her employer refused to accommodate her request to return to the “hours-of-work accommodation” she previously enjoyed and instead “forced her to work long stretches of over-forty-hour weeks with few or no days off, resulting in the foreseeable consequence that [her] health would markedly deteriorate.” Smith, 376 F.3d at 538.

As in Talley and Smith, in this case a reasonable jury could find that ISI’s repeated refusal to reasonably accommodate Hurtt, or to engage at all in the interactive process, amounted to a constructive discharge. Like the plaintiffs’ requests in Talley and Smith, Hurtt’s requests for a reasonable accommodation of a four-day workweek with two assignments and eight hours per night in a hotel room fell on deaf ears. And like the plaintiffs in those cases, Hurtt was faced with the prospect of continuing to work without accommodation and further endangering his health, or quitting. A reasonable jury could easily find, as this Court held in Talley and Smith, that a reasonable person faced with such a choice would quit, and that ISI intended that outcome. See Talley, 542 F.3d at 1109 (jury could find the plaintiff’s resignation was “both intended and foreseeable”).

A reasonable jury could also find that ISI’s revocation of Hurtt’s $70,000/year forgivable draw, resulting in an immediate debt to ISI of $22,731 and the cancellation of his pre-paid travel expenses, amounted to a constructive discharge. Certainly, a jury could find that a reasonable person in Hurtt’s shoes would have felt compelled to resign. See Regan, 679 F.3d at 482 (listing a “reduction in salary” and imposition of less favorable terms of employment as relevant factors in determining whether a reasonable person would have felt compelled to resign). A reasonable jury could also find that Hurtt’s resignation was “both intended and foreseeable,” Talley, 542 F.3d at 1109, especially in light of evidence that Hurtt informed Brewer on April 2, 2012, that without the guarantee, “I’m done. The jobs do not support a decent income at th[at] point.” R.46, Ex.6 (Sealed 4/2/12 text messages).

Finally, Hurtt raised a jury question as to whether ISI constructively discharged him due to his disability. Hurtt offered evidence that Brewer callously instructed him to “get [his] dick out . . . and toughen up” after Hurtt sent in his doctor’s March 5, 2012, medical report, which detailed not only Hurtt’s physical ailments but also his mental fatigue and recommended time off from travel as well as sleep hygiene. Within a few weeks of receiving the report, ISI threatened to “pull” Hurtt’s guarantee. Moreover, despite knowledge of Hurtt’s suicide attempt, ISI repeatedly refused to accommodate his request for a reasonable accommodation, or even to meet to discuss his request. Finally, a jury could find that ISI constructively discharged Hurtt due to his disability based on the timing of ISI’s drastic changes to Hurtt’s pay, which ISI made retroactive to the very day of Dr. Sharnowski’s note documenting Hurtt’s depression and acute anxiety and requesting that he be given time off.

The ADA’s anti-retaliation provision makes it unlawful for an employer to “discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter . . . .” 42 U.S.C. § 12203(a). To establish a prima facie case of retaliation, a plaintiff must show: (1) protected activity; (2) an adverse action; and (3) a causal connection. Carson v. Ford Motor Co., 413 F. App’x 820, 822 (6th Cir. 2011). In this case, the court held that Hurtt failed to establish a prima facie case because he had not engaged in protected activity or suffered any adverse action. The court erred.

The district court held that Hurtt had not engaged in protected activity by submitting Dr. Sharnowski’s note requesting leave because ISI permitted him to take the leave and because “the activity of taking a leave is not the type of protected activity set forth in a retaliation claim.” PageID#1227-28 (opinion, R.50). The district court erred, as this Court has recognized correctly that an employee’s request for a reasonable accommodation constitutes protected activity under the ADA. See A.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 698 (6th Cir. 2013) (stating that “both this circuit and most others agree that requests for accommodation are protected acts” under the ADA); Baker v. Windsor Republic Doors, 414 F. App’x 764, 777 n.8 (6th Cir. 2011) (in ADA retaliation case, stating that “the protected act is the showing of a good-faith request for reasonable accommodation[]”). A request for FMLA leave to accommodate a disability also constitutes protected activity. See Garcia v. Third Fed. Sav. & Loan Ass’n of Cleveland, 2007 WL 1235820, at *6 (N.D. Ohio April 26, 2007) (holding that the plaintiff’s request for “a reasonable accommodation in the form of FMLA leave” constituted protected activity).

Accordingly, a reasonable jury could find that Hurtt engaged in protected activity through his multiple requests for reasonable accommodation. Those requests included: (1) Hurtt’s requests for four-day workweeks with eight hours per night in a hotel room; (2) Hurtt’s submission of Dr. Sharnowski’s September 1, 2012, letter documenting his major depression and acute anxiety and stating he was unable to work until September 5, 2012; and (3) Hurtt’s submission of his September 4, 2012, FMLA request for intermittent leave for acute anxiety and depressive episodes. In reaching a contrary conclusion, the district court reasoned that Hurtt’s submission of Dr. Sharnowski’s September 2, 2102, letter requesting five days of leave did not constitute protected activity because ISI allowed him to take leave on September 4, 2012. PageID#1227 (opinion, R.50). The inquiry for purposes of the anti-retaliation provision, however, is not whether the employer granted the requested accommodation, but whether the employer retaliated against an employee for making the request. See 42 U.S.C. § 12203(a).

The district court further erred in holding that Hurtt did not establish an adverse action. At the outset, the district court articulated an incorrect standard in determining whether Hurtt established an adverse action under the ADA’s anti-retaliation provision. Citing Steward v. New Chrysler, 415 F. App’x 632, 643-44 (6th Cir. 2011), and Blizzard v. Marion Tecnical College, 698 F.3d 275, 288 (6th Cir. 2012), the district court stated that a plaintiff must show an adverse “employment” action. PageID#1226 (opinion, R.50). In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67 (2006), however, the Supreme Court held that Title VII’s anti-retaliation provision “extends beyond workplace-related or employment-related retaliatory acts.” Expounding on the standard, the Supreme Court held that the anti-retaliation provision protects against any materially adverse action, i.e., one that might dissuade a reasonable person in the plaintiff’s position from complaining of discrimination. Id. at 68.

As the district court noted, this Court has occasionally stated that the ADA’s anti-retaliation provision protects against only adverse “employment” actions. In other cases, however, this Court has recognized correctly that Burlington Northern applies to the ADA’s anti-retaliation provision, meaning that an adverse action need not concern employment. See Carson, 413 F. App’x at 822 (in ADA employment case, stating that a plaintiff must show he “was subjected to a materially adverse action” to establish a prima facie case); A.C., 711 F.3d at 698 (in ADA suit against school district on behalf of disabled child, stating that “[t]o be adverse, a retaliatory action must be enough to dissuade a reasonable person from engaging in the protected activity” and citing Burlington Northern). Other circuits are in accord. See, e.g., Hennagir v. Utah Dep’t of Corrections, 587 F.3d 1255, 1266 (10th Cir. 2009) (applying the Burlington Northern “materially adverse” standard to ADA retaliation claim). Accordingly, this Court may wish to clarify that the anti-retaliation provision of the ADA protects against any act that might dissuade a reasonable employee from complaining of discrimination, regardless of whether it is an employment action.

Even if an adverse “employment” action were required, in this case the retaliatory adverse action at issue—Hurtt’s constructive discharge—was an employment action. As discussed above, a factfinder could determine that ISI intentionally made Hurtt’s working conditions so intolerable he had to resign by denying his request for a four-day workweek with two assignments per week and for eight hours a night in a hotel room, and/or by replacing his $70,000/year forgivable draw with a twelve percent commission, refusing to pre-pay his hotel and travel expenses, and telling him he owed $22,731 in unearned commissions. All of these actions concerned Hurtt’s employment, making his constructive discharge an “employment” action.

Finally, even if a jury concluded that ISI did not constructively discharge Hurtt, a jury could still find under Burlington Northern that Hurtt suffered a materially adverse action. A jury could easily determine that a reasonable employee would be dissuaded from requesting a reasonable accommodation of his disability if doing so resulted in the revocation of a guaranteed annual salary of $70,000/year, revocation of the pre-payment of hotel and travel expenses, and becoming immediately indebted for $22,731.

Although the district court did not address it, Hurtt produced sufficient evidence to establish causation, which constitutes the third prong of the prima facie case. A jury could find a causal connection between Hurtt’s requests in the spring and summer of 2012 for a reasonable travel and sleep schedule—which ISI steadfastly denied, without discussion, before threatening to pull his guarantee—and Hurtt’s September 2012 constructive discharge. A jury could also find a causal connection between Hurtt’s protected activity and his discharge based on the close temporal proximity between Hurtt’s submission of Dr. Sharnowski’s September 1, 2012, letter requesting a day off and Hurtt’s submission of his September 4, 2012, FMLA intermittent leave request, and the termination of Hurtt’s $70,000/year forgivable draw—which ISI made retroactive to September 1, 2012—and pronouncement that Hurtt now owed the company $22,731. Accordingly, Hurtt established a prima facie case of retaliation, requiring reversal of summary judgment.

For the reasons discussed above, the Commission respectfully suggests that this Court reverse the district court’s grant of summary judgment.

I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(b) because this brief contains 6,986 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

I hereby certify that on December 10, 2014, I filed and served the EEOC’s amicus curiae brief via this Court’s CM/ECF system on the following counsel of record:

1 The Commission takes no position on any other issues in this appeal.

2 Exhibit 6 was served on defense counsel and provided to the court but through a filing error was omitted from the sealed documents at R.47. Hurtt has filed a motion with the district court to correct the record. See Hurtt’s Op. Br. at p.7 n.3.

3 In defining “protected activity,” the district court cited 42 U.S.C. § 2000e-3(a). PageID#1226 (opinion, R.50). That provision, however, is the anti-retaliation provision of Title VII; the anti-retaliation provision of the ADA is found at 42 U.S.C. § 12203(a).