TABLE OF AUTHORITIES........................................................................... ii

STATEMENT OF INTEREST........................................................................ 1

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

STATEMENT OF THE CASE....................................................................... 2

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

B. District Court’s Decision.................................................................... 12

ARGUMENT................................................................................................ 19

I..... Based on this Court’s legal standard governing Title VII retaliation claims, Jones adduced sufficient evidence to support a reasonable jury finding that the defendants retaliated against him for filing an EEOC charge....... 19

II.... A reasonable jury could find that Jones was a qualified individual with a disability under the ADA and that the defendants refused to engage in the ADA’s mandatory interactive process to find a reasonable accommodation for his disability.............................................................................................. 27

CONCLUSION............................................................................................. 37

CERTIFICATE OF COMPLIANCE............................................................ 38

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases

Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866
(7th Cir. 2016)........................................................................................... 20

Basden v. Prof’l Transp., Inc., 714 F.3d 1034 (7th Cir. 2013)................. 18, 30

Castro v. DeVry, 786 F.3d 559 (7th Cir. 2015)............................ 12, 13, 22, 23

Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012)................................. passim

Coolidge v. Consol. City of Indianapolis, 505 F.3d 731
(7th Cir. 2007)........................................................................................... 21

EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606
(5th Cir. 2009)............................................................................... 31, 32, 35

EEOC v. Convergys Customer Mgmt. Grp., 491 F.3d 790
(8th Cir. 2007)........................................................................................... 31

EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005)................ 30, 33

Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944 (8th Cir. 1999)................. 32

Gratzl v. Office of Chief Judges of the 12th, 18th, 19th, & 22nd Judicial Cirs., 601 F.3d 674 (7th Cir. 2010)........................................................................... 17

Haschmann v. Time Warner Entm’t Co., 151 F.3d 591
(7th Cir. 1998)........................................................................................... 35

Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958
(7th Cir. 2014)........................................................................................... 29

Lang v. Ill. Dep’t of Children & Family Servs., 361 F.3d 416
(7th Cir. 2004)........................................................................................... 20

Malin v. Hospira, Inc., 762 F.3d 552 (7th Cir. 2014).................................... 23

Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840
(7th Cir. 2007)........................................................................................... 25

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)................... 25

Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014)................................... 33

Sanchez v. Henderson, 188 F.3d 740 (7th Cir. 1999)..................................... 25

Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014)........... 29, 30

Stern v. St. Anthony’s Health Ctr., 788 F.3d 276 (7th Cir. 2015)................. 28

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999)..................... 32

Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013)...................... 20

Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881 (7th Cir. 1996)......................... 23

Statutes

Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq............................................................................ 1

Title I of the Americans With Disabilities Act of 1990................................ 1

42 U.S.C. § 12102(2)(B)................................................................................. 27

42 U.S.C. § 12102(4)(A)................................................................................ 27

42 U.S.C. § 12111(8).......................................................................... 16, 17, 28

42 U.S.C. § 12112(a)...................................................................................... 27

42 U.S.C. § 12112(b)(5)(A)............................................................................ 27

42 U.S.C. § 12117............................................................................................ 1

Regulations & Rules

29 C.F.R. § 1630.2(j)(3)(ii)....................................................................... 16, 27

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

Fed. R. App. P. 29(d).................................................................................... 38

Fed. R. App. P. 32(a)(5)................................................................................ 38

Fed. R. App. P. 32(a)(6)................................................................................ 38

Fed. R. App. P. 32(a)(7)(B)........................................................................... 38

Other Authorities

EEOC, Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016), at https://www.eeoc.gov/eeoc/publications/ada-leave.cfm................................................................................................................... 35

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), at http://www.eeoc.gov/policy/docs/accommodation.html...................... 36

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission (“EEOC”) is the agency Congress established to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and Title I of the Americans With Disabilities Act of 1990 (“ADA”), see 42 U.S.C. § 12117. The district court held that the plaintiff could not demonstrate a causal nexus between his EEOC charge and his termination because, inter alia, the allegedly retaliatory acts occurring between the two events were not themselves actionable under Title VII. It also held that he could not show he was a qualified individual with a disability under the ADA based solely on a letter from the defendant terminating his employment and refusing to engage in the ADA’s mandatory interactive process. In so ruling, the district court contravened the Supreme Court’s and this Court’s precedent and the EEOC’s guidance. Because this Court’s ruling will directly affect future EEOC enforcement actions, the agency offers its views to the Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES [1]

1. Did the district court misapply this Court’s governing legal standard under Title VII in holding that Jones failed to adduce sufficient evidence to support a reasonable jury finding that the defendants retaliated against him for filing an EEOC charge?

2. Did the district court err in its analysis of whether Jones was a qualified individual with a disability under the ADA and in not addressing whether the defendants refused to engage in the ADA’s mandatory interactive process to find a reasonable accommodation for Jones’ disability?

STATEMENT OF THE CASE

A. Statement of the Facts

Plaintiff Michael A. Jones worked as a jail deputy at the LaPorte County Jail in LaPorte, Indiana, from May 1997 through July 24, 2012. R.50-9 at 2-3.[2] In early February 2012, Jones filed an EEOC charge of race and disability discrimination.[3] R.50-6 at 15-18, 50-9 at 6. Among the alleged discriminatory incidents was one from May 2010 where Jones, who is black, and two black jail inmates were on an elevator with Sergeant Stephen Vance, the Assistant Jail Commander, and Vance allegedly said, “I remember a day and time when bitches like you could not ride the elevator with somebody like me.” R.50-6 at 16. According to Jones, he later told Vance he owed all three men an apology, but Vance “looked annoyed and remained silent.” Id.

Jones testified that, as far as he knew, Vance never apologized to him or to the inmates. R.50-9 at 3. Jones also testified that he reported this incident to Captain Scott Bell, the Jail Warden, within a day after it happened, and Bell simply responded that “calling someone a racist is a serious matter.” Id. According to Jones, Bell took no other action of which he knew until after he filed his EEOC charge in 2012. Id.

Bell received notice of Jones’ EEOC charge “in early 2012.” R.37-2 at 4. On February 9, 2012, Vance told Jones that he would have to meet with Vance and Bell the next day. R.50-9 at 6; R.37-2 at 9. Jones testified that Bell asked him about his EEOC charge at the meeting, and Jones did not respond, except to say, “I shouldn’t be discussing that.” R.37-1 at 28 (dep. p. 103). According to Jones, Bell “looked at [Joan Chumley, an NAACP representative who was at the meeting] and said that, … ‘This is the kind of individual we dealing with. Mike Jones. He gets under my skin.’” Id.

After the meeting, Jones testified, his corporal instructed him to ask Vance for a working portable radio. R.37-1 at 29 (dep. p. 109). According to the LaPorte County Sheriff’s Office’s jail operating guidelines, each officer was supposed to have a portable radio because it was “essential that communication between officers and this department be maintained in order to provide security within the jail and outside perimeters.” R.50-2 at 57. Jones had not had a working radio since at least mid-January 2012. R.50-9 at 6.

Jones testified that, when he went to Vance’s office and asked him about the radio, Vance responded, “Get the hell out of my office.” Id.; R.37-1 at 29 (dep. p. 109). Thereafter, according to Jones, he “was continuously told that there were no working radios available.” R.50-9 at 6. Jones testified that Vance “knew I didn’t have a radio and … I had to go in the secure block with the inmates. They’re supposed to be–they’re some real hard around the jail, like a bigger crime.” R.37-1 at 31 (dep. p. 114).

On February 16, 2012, a new performance evaluation appeared in Jones’ file. R.50-2 at 63. Jones testified that he had not known of this evaluation until it was produced in discovery in this lawsuit. R.50-9 at 6. The evaluation purportedly covered from July 1, 2010, through January 1, 2012, even though Jones’ file already contained several contemporaneous evaluations for this period, all of which were mostly positive or neutral and signed by Jones. R.50-2 at 59-62.

The February 16 evaluation, on the other hand, was unsigned and, for the first time, indicated that Jones “does not meet the minimum standard” in two areas: attitude and report quality. R.50-2 at 63. The comment section described Jones’ “attitude” as “[e]xtremely argumentative and caused staff moral [sic] issues by declaring someone made a racist remark toward him when the investigation revealed the remark was meant to be a greeting. This has also been an issue in the past with Deputies Rice, Woday, and at one point even I [sic]. The appearance of conflict with him always turns toward race instead of the conflict or stress issue such as teamwork …. Deputy Jones can be very hard to work with because of this.” Id.

On April 17, 2012, Jones testified, Vance threatened to “write him up” for not performing a security check (even though it was not yet time to do so). R.50-9 at 7. According to Jones, the next day, his supervisor, Sergeant Nurnberg, told him that Vance had instructed him to “write [Jones] up,” but Nurnberg said he had refused. Id. Jones related that he heard nothing more until discovery, when he found a “verbal warning” form in his file, dated April 22, 2012, reflecting that he had failed to make a required security check at 1355 hours. Id.; R.50-9 at 18. Jones noted that the attached log sheets, which only covered part of his shift, reflected that all security checks were timely made; the log sheet that would have covered 1355 hours, which Jones had never seen, was not produced in discovery. R.50-9 at 7, 19-21.

On April 29, 2012, Jones was doing his security checks on the secure block of the jail when he found an inmate in his cell hanging from a broken sprinkler pipe by a sheet. R.37-1 at 31 (dep. p. 117). Because he had no working radio, Jones could not call for help, which “caused extreme anxiety because seconds mattered in this emergency situation. I had to scream and jump in front of the cameras to get the guard on duty to activate the audio so that I could report a Code 9 (suicide).” Id. at 31-32 (dep. p. 117-18); R.50-9 at 7-8.

Once Jones reported the suicide attempt, the officer in the control room opened the cell door remotely, and Jones went in and got the inmate down, untied him, and began CPR until other officers could take over. R.37-1 at 32 (dep. p. 118); R.50-2 at 40-45. In a letter to Sheriff Michael Mollenhauer, Bell wrote that the incident “took place in a matter of seven (7) minutes,” and “[t]he outcome would have been much different if it wasn’t for the skilled and timely actions” of the officers involved, including Jones. R.50-2 at 40. Jones related that he was issued a working radio “immediately after [the hanging] incident,” “even though I had been told up to that point that there were none available.” R.50-9 at 7.

Jones testified that on the next day, April 30, he asked his corporal if he could speak with a counselor about the attempted suicide. R.50-9 at 8. He explained that he had been involved in an inmate hanging incident at the jail once before, but the April 29 incident was particularly traumatic for him because of the lack of the radio hampering communication and because “the young inmate reminded me of my own son, who was similar in age and complexion.” Id. at 7-8. Although Jones had been given counseling after his first hanging incident, he testified, he was not given counseling this time. Id. at 8.

Jones testified that he “continued to experience anxiety and a crawling feeling on my skin” after the incident, which he first reported to his family doctor on May 2, 2012. R.50-9 at 8. Jones then saw a psychologist, Dr. Israel, who advised that he take some time off work, but Jones initially refused. Id. According to Jones, however, his physical and mental condition only worsened over the next three weeks, and after he saw Dr. Israel on June 1, 2012, Dr. Israel requested that Jones be granted leave from work. Id.; R.50-8 at 14. The letter, dated June 2, explained that Jones was being treated “for Post Traumatic Stress Disorder, due to a recent traumatic event he was involved with at work.” R.50-8 at 14. A letter from Joyce Leon, HR Director for LaPorte County Government, reflects that Jones went out on FMLA leave effective June 4, 2012. R.50-2 at 48.

On July 11, 2012, Dr. Israel released Jones to return to work effective July 16, noting that he would evaluate Jones’ progress again two days later, on July 18. R.50-8 at 15. Dr. Israel requested that Jones return to work with four “limited conditions”: (1) limited exposure to the cell where the incident occurred; (2) limit hours to one shift of work; (3) continued therapy with Dr. Israel to maintain Jones’ focus and reduce trauma; (4) should symptoms begin again, Jones should be allowed to leave work. Id. The letter concluded, “[s]hould you have any further questions please feel free to contact me.” Id. Dr. Israel also stated that, around the same time, he telephoned the jail and attempted to discuss Jones’ needs with both Vance and Bell, but Vance was dismissive and Bell never returned his call. R .50-8 at 3-4. Jones testified that, as he understood it, if he returned to work on July 16 without problems, he would be able to resume work without any restrictions after he saw Dr. Israel again on July 18. R.37-1 at 33 (dep. p. 124).

On the same date, July 11, Vance and Bell turned Jones’ accommodation request over to Chief Deputy Jim Sosinski. R.50-2 at 50. In a letter of that date from Jeanne Albers, Jail Administrative Assistant, to the LaPorte County Government HR Department, Albers stated Sosinski’s position that Jones “cannot effectively perform the duties that are required of him at the LaPorte County Jail. Specifically, incident management and daily activities could require any staff member to be held over for more than a one-shift period of time. Exposure to and managing traumatic events are a required part of the job duties of a jail officer.” Id. The letter continued, “The LaPorte County Jail does not offer a position that fits Deputy Jones’ numerous restrictions. The Chief suggested that Deputy Jones may be a liability to this department… and suggests that he shouldn’t return to work under the current restrictions.” Id. at 50-51.

On the next day, July 12, 2012, Leon sent Jones a letter indicating that “we, unfortunately, are unable to accommodate your return to work on July 16.” R.50-2 at 52. Jones saw Dr. Israel as planned on July 18, at which time Dr. Israel opined that Jones “was doing significantly better,” and Jones told him about Leon’s letter. R.50-8 at 4.

Jones was fired on July 24, 2012. R.50-2 at 53; R.50-5 at 4; R.37-5 at 102. Bell testified that he made the decision to fire Jones, not only because Jones had exhausted his FMLA leave, but also because Jones “could not or would not provide [the County] with documentation or any further information from his doctors as to why he needed to be off longer” and “when he could or would ever come back to work.” R .50-1 at 20-21. Bell testified that he had discretion to grant Jones additional leave, and that he did not know whether he would have exercised that discretion if Jones had been more responsive to the County’s inquiries. Id. at 22. Jones’ termination letter, which was signed by Leon, stated that Jones’ “FMLA allotment has been exhausted” and that he was not entitled to any additional leave; consequently, his employment was terminated “in accordance with the FMLA and LaPorte County government’s policy.” R.37-5 at 102.

B. District Court’s Decision

With respect to Jones’ retaliation claim, the district court held that Jones was required to “‘offer evidence of three elements: (1) [he] engaged in protected activity, (2) he suffered adverse employment actions, and (3) there was a causal connection between the protected activity and the adverse employment actions.’” R.64 at 34-35 (quoting Castro v. DeVry, 786 F.3d 559, 564 (7th Cir. 2015)); App.-34-35. The court found that Jones satisfied the first two elements because Jones’ filing an EEOC charge was protected activity and being fired was an adverse employment action. Id. at 35; App.-35.

Turning to the third element, the court observed that Jones relied on circumstantial evidence to establish the causal link between his protected activity and his termination. The court stated:

In retaliation cases, like this one, the Seventh Circuit has recognized three categories of circumstantial evidence available to a plaintiff using this convincing mosaic approach. Coleman v. Donah[o]e, 667 F.3d 835, 860 (7th Cir. 2012). The categories include: (1) evidence of suspicious timing; (2) evidence that similarly situated employees were treated differently, and (3) evidence that the employer’s proffered reason for the adverse employment action was pretextual. Id. at 860. Plaintiffs may use these together, or each category of circumstantial evidence can suffice by itself to preclude summary judgment, depending upon its strength. Id. at 862.

R.64 at 35; App.-35.

The court then addressed each of the Coleman factors, concluding that none of them supported Jones’ retaliation claim. The court began by citing a string of cases for the proposition that, while “[s]uspicious timing can sometimes raise an inference of a causal connection, … temporal proximity alone is ‘rarely sufficient’ to establish causation.” R.64 at 36 (quoting Castro, 786 F.3d at 565); App.-36. The court then rejected Jones’ argument that “there is suspicious timing in this case because after Jones filed his EEOC complaint, ‘phony evaluations and false write-ups start[ed] to appear in Jones’ file, culminating with his discharge four months later.’” Id. According to the court, negative evaluations, write-ups, and warnings are not “adverse employment actions.” Id. at 36-37 (citations omitted); App.-36-37.

The court then found, “[t]o the extent that Jones hangs his hat on the fact that he was terminated approximately five months after filing the EEOC complaint, this fact alone does not support a reasonable inference of retaliation.” R.64 at 37; App.-37. The court stated that Jones had provided no evidence of causality between his charge filing and his termination, and then observed that “the passage of five months[’] time is too long of a duration to infer evidence of causality.” Id. at 37-38; App.-37-38.

With respect to the remaining Coleman factors, the court found that Jones had not adduced sufficient evidence of a similarly situated comparator to support an inference of retaliation. R.64 at 38-41; App.-38-41. Lastly, the court stated, “In evaluating whether the proffered reason was pretextual, the only question is whether the employer’s proffered reason … was a lie….To show pretext, an employee must present evidence suggesting that the employer is dissembling.” Id. at 41-42 (internal citations and quotation marks omitted); App.-41-42.

The court then dismissed Jones’ reliance on anything pertaining to the elevator incident or the negative evaluation and reprimand after he filed his charge. Id. at 42; App.-42. According to the district court, “None of the evidence calls into question the veracity of whether Jones was indeed out of FMLA leave, the Defendants’ stated reason for termination.” Id. at 42-43; App.-42-43.

Moreover, the court observed, “[e]ven assuming, arguendo, Jones could establish a prima facie case, he has failed to dispute the nondiscriminatory reason offered by the Department: failure to return to work after exhaustion of his FMLA leave….” R.64 at 43 (internal citation and quotation marks omitted); App.-43. Accordingly, the court dismissed Jones’ retaliation claims.

The court then stated that, to establish a prima facie case for failure to accommodate his disability under the ADA, Jones had to show that (1) he is a qualified individual with a disability, (2) the defendants were aware of his disability, and (3) they failed to reasonably accommodate it. R.64 at 49; App.-49. The court first observed that, under the amended ADA and its implementing regulations, PTSD is listed “as an impairment that will ‘virtually always be found to impose a substantial limitation on a major life activity.’” Id. at 50 (quoting 29 C.F.R. § 1630.2(j)(3)(ii)); App.-50. Accordingly, the court found, based on this standard and on the record evidence, a reasonable jury could find that Jones was disabled under the ADA. Id. at 51; App.-51.

The court then stated that “Jones must also establish that he is a ‘qualified individual’ under the ADA, which is defined as an individual with a disability ‘who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.’ 42 U.S.C. § 12111(8).” Id. According to the court, Jones “completely fails to address this requirement.” Id. at 52; App.-52. Nonetheless, the court observed, “[t]o determine the essential functions of the employee’s position, courts consider such factors as ‘the employee’s job description, the employer’s opinion, the amount of time spent performing the function, the consequences for not requiring the individual to perform the duty, and past and current work experiences.’” Id. (quoting Gratzl v. Office of Chief Judges of the 12th, 18th, 19th, & 22nd Judicial Cirs., 601 F.3d 674, 679 (7th Cir. 2010)). According to the court, “[c]ourts do give deference to an employer’s judgment regarding which requirements of a particular job are ‘essential.’” Id. at 52-53 (citing 42 U.S.C. § 12111(8); Gratzl, 601 F.3d at 679); App.-52-53.

The court then reasoned that, since Jones had failed to show he could perform the essential functions of a jail officer without an accommodation, the only question was whether he could do so with an accommodation. R.64 at 53; App.-53. According to the court, although reassignment to a vacant position may be a form of reasonable accommodation, “Jones has not provided any admissible evidence showing there was an open position for which Jones was qualified” with his restrictions. Id. The court also stated that Jones had offered no response to Sosinski’s testimony that his proposed accommodations in Dr. Israel’s letter of July 11, 2012, were unacceptable in a jail environment. Id. at 54; App.-54.

The court also rejected what it termed “the only additional argument Jones seems to hint at,” “that he should have been accommodated through more time off work.” Id. The court dismissed the concept of leave as a reasonable accommodation, stating, “[t]he rather common-sense idea is that if one is not able to be at work, one cannot be a qualified individual. Not working is not a means to perform the job’s essential functions. An inability to do the job’s essential tasks means that one is not ‘qualified’; it does not mean that the employer must excuse the inability.” Id. at 54-55 (internal citations and quotation marks omitted); App.-54-55.

Finally, the court rejected Jones’ argument that Dr. Israel’s proposed restrictions might have only lasted for two days, until Jones saw Dr. Israel again on July 18. R.64 at 55; App.-55. Accordingly, the court held, “Jones has failed to show that he is a qualified individual with a disability under the ADA. As such, the Court’s analysis may end there, and it need not consider the interactive process. Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013).” Id. at 56; App.-56.

ARGUMENT

I. Based on this Court’s legal standard governing T itle VII retaliation claims, Jones adduced sufficient evidence to support a reasonable jury finding that the defendants retaliated against him for filing an EEOC charge.

Jones argues that, after learning of his first EEOC charge (sometime before February 10, 2012), LaPorte County subjected him to a chain of retaliatory events that culminated in his termination. That chain of events included being made to work without a radio until after the hanging incident; the redundant negative performance evaluation of February 16 that expressly relied on Jones’ complaint of racism by Vance mentioned in his EEOC charge; the spurious write-up of April 22 without supporting documentation; the denial of counseling after the April 29 hanging incident; and Sosinski’s refusal to discuss any accommodation for Jones’ PTSD at the beginning of July, which resulted in his running out of FMLA leave and termination on July 24.

It is immaterial to the causation analysis whether any of these intermediate retaliatory steps was independently actionable under Title VII, so long as Jones can show that retaliation was ultimately the but-for cause of his termination. See Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). As this Court has noted repeatedly, this is the concept behind the “convincing mosaic” approach to demonstrating causation in retaliation cases:

Under the convincing mosaic approach, a retaliation case can be made by assembling a number of pieces of evidence none meaningful in itself, consistent with the proposition of statistical theory that a number of observations each of which supports a proposition only weakly can, when taken as a whole, provide strong support if all point in the same direction…. On their own, Coleman’s evidence of suspicious timing and pretext might not be enough to show a causal connection between her protected activities and her suspension or termination. Together, however, they are sufficient to withstand summary judgment and create a question for the jury.

Coleman, 667 F.3d at 862 (internal citation and quotation marks omitted); see also, e.g., Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 888 (7th Cir. 2016) (“We have held that a ‘sequence of protected activity and punitive action could lend some support to a reasonable juror’s inference of retaliation.’”) (quoting Coleman, 667 F.3d at 861); Lang v. Ill. Dep’t of Children & Family Servs., 361 F.3d 416, 421 (7th Cir. 2004) (reversing summary judgment on employee’s retaliation claim where a string of disciplinary acts ensued shortly after employee filed an EEOC charge). But see Coolidge v. Consol. City of Indianapolis, 505 F.3d 731, 735 (7th Cir. 2007) (“The reprimands therefore were accompanied by another job action—a firing—even if it came later, and constitute adverse employment actions.”) (emphasis added).

Accordingly, the district court erred in ruling that Jones could not establish causation as to his termination because any of the adverse events he alleged between February and July of 2012 might not themselves be actionable under Title VII. The court then compounded its error by disaggregating Jones’ evidence of causation, citing cases standing for the proposition that each type of evidence, “standing alone,” is insufficient to establish causation, and simply dismissing the lot. In so doing, the court misapplied this Court’s law on the “convincing mosaic” approach and wrongly concluded that summary judgment was warranted.

In Coleman, this Court noted that it had “recognized three categories of circumstantial evidence available to a plaintiff using the ‘convincing mosaic’ approach.” 667 F.3d at 860. Among the three categories are “suspicious timing, ambiguous statements oral or written, … and other bits and pieces from which an inference of [retaliatory] intent might be drawn” and “evidence that the employer offered a pretextual reason for an adverse employment action.” Id. But the three categories listed in Coleman are nowhere described as exclusive, and the first category is a good deal broader than just timing, as the district court characterized it.

The court then further erred in relying on a string of citations for the proposition that “timing alone” is insufficient to demonstrate causation. See R.64 at 36; App.-36. Jones never argued that “timing alone” established causation here; rather, he argued that LaPorte’s learning of his charge set in motion a chain of events leading to his termination five months later. Viewed in light of the whole record, there is nothing about the five-month period between Jones’ filing his charge and his termination that precludes a causation finding. As this Court explained in Castro, “[w]e have rejected any bright-line rule about how close the events must be to establish causation, but in cases where there is ‘corroborating evidence of retaliatory motive,’ an interval of a few weeks or even months may provide probative evidence of the required causal nexus.’” 786 F.3d at 565 (quoting Coleman, 667 F.3d at 861). See also, e.g., Malin v. Hospira, Inc., 762 F.3d 552, 560 (7th Cir. 2014) (reversing summary judgment for employer where evidence showed patient retaliation over period of several years); Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 n.6 (7th Cir. 1996) (“If the plaintiff has evidence from which one may reasonably infer that her former employer waited in the weeds for five or ten years and then retaliated against her for filing an EEOC charge, we see no difficulty with allowing the case to go forward.”).

Jones adduced more than sufficient corroborating evidence of retaliatory motive to support a reasonable jury finding of causation. The negative evaluation of February 16, 2012, that appeared in his file is no garden-variety negative performance review. In addition to being Jones’ first-ever such negative review and redundant of other contemporaneous, signed reviews in his file, it was authored by Vance, the subject of Jones’ first EEOC charge and the perpetrator of the elevator incident. It also specifically referenced the elevator incident and what Vance believed to be Jones’ oversensitivity to racial matters. A reasonable jury could readily find that Vance’s evaluation of Jones—coming just days after learning about the EEOC charge—was motivated by a desire to retaliate against Jones for filing that charge. Vance’s insistence on “writing up” Jones for a failed security check in April, based on what appears to be dubious support at best, could be attributed to the same motive.

According to the court, because Jones could not show that LaPorte’s proffered reason for terminating him was literally false—i.e., that he had not run out of FMLA leave—he could not demonstrate pretext as a matter of law. In so ruling, the district court applied an unduly narrow definition of “pretext” that contravenes both the Supreme Court’s and this Court’s case law.

This Court has explained the requisite showing for pretext in a retaliation case as follows:

A plaintiff can establish pretext either directly, with evidence suggesting that retaliation or discrimination was the most likely motive for the termination, or indirectly, by showing that the employer’s proffered reason was not worthy of belief. The indirect method requires some showing that (1) the defendant’s explanation has no basis in fact, or (2) the explanation was not the “real reason,” or (3) … the reason stated was insufficient to warrant the [termination].

Sanchez v. Henderson, 188 F.3d 740, 746 (7th Cir. 1999) (internal citations and quotation marks omitted). See also, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination….”); Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 851 (7th Cir. 2007) (“A trier of fact might believe that the company did not see his previous difficulties as firing offenses until Pantoja complained. If that is the way it sees the facts, it would be entitled to conclude that the real reason for Pantoja’s termination was retaliation.”).

But Jones did not have to show that he did not actually run out of FMLA leave in order to survive summary judgment. Rather, he simply had to adduce evidence—as he did—from which a reasonable jury could find that the real reason for his termination was retaliation. In addition to the causation evidence discussed above, see supra at 23, a jury could also credit Jones’ and Dr. Israel’s testimony that, when Jones attempted to return to work with an accommodation request, the County terminated his employment almost immediately, while making no attempt to see if accommodation was possible. See supra at 9. A jury could also note Bell’s testimony that, as the decisionmaker in Jones’ termination (and one of the targets of Jones’ first EEOC charge), he had the discretion to extend Jones’ leave, but simply chose not to do so. See supra at 11.

Moreover, a reasonable jury could also note that the only reason Jones ran out of FMLA leave at all was because he was forced to take leave due to PTSD from the inmate hanging incident of April 29, 2012. Jones adduced evidence that his PTSD was exacerbated by being forced to work through the incident without a working radio (although a working radio was suddenly found thereafter), and by the Department’s refusal to provide him with counseling after the incident occurred as it had done previously. A jury could find that the Department’s own treatment of Jones after it learned of his EEOC charge was what caused him to require FMLA leave after the hanging incident, and that LaPorte was motivated to treat Jones as it did by retaliation. Accordingly, summary judgment on Jones’ retaliation claim should be reversed.

II. A reasonable jury could find that Jones was a qualified individual with a disability under the A DA and that the defendants refused to engage in the ADA’s mandatory interactive process to find a reasonable accommodation for his disability.

The ADA prohibits “discriminat[ion] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). It defines “discrimination” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability …, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.” Id. § 12112(b)(5)(A).

As the district court recognized, the record evidence was more than sufficient to support a reasonable jury finding that Jones’ PTSD constitutes a disability under the amended ADA. See 42 U.S.C. §§ 12102(2)(B), 12102(4)(A); 29 C.F.R. § 1630.2(j)(3)(ii). Accordingly, the next question is whether Jones was a “qualified individual”—i.e., whether, he was “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that [he] holds or desires.” 42 U.S.C. § 12111(8); see also, e.g., Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 285 (7th Cir. 2015).

In ruling that Jones could not have performed the essential functions of his job even with a reasonable accommodation, the district court appears to have deferred entirely to Albers’ letter reflecting Sosinski’s categorical rejection of Jones’ first and only accommodation request. R.64 at 54; App.-54. Albers’ barebones letter, however, is not sufficient evidence to require a jury finding that Jones could not perform the essential functions of his job with a reasonable accommodation. The letter contains no meaningful analysis of why all four accommodations Jones proposed—particularly given that they may have only been intended to last a short time—were not reasonable.

Rather, a reasonable jury could find that Jones met his burden on summary judgment of adducing evidence from which a reasonable jury could find that he was qualified. Through his psychologist, Dr. Israel, Jones proposed a list of four modest accommodations in a letter stating that he would be returning to his doctor for reassessment two days after returning to work. And the record reflects that when Jones did return to Dr. Israel on July 18, the doctor stated that he “was doing significantly better.” This evidence would support a reasonable jury finding that Jones could have performed the essential functions of his job with a reasonable accommodation. See, e.g., Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958, 962 (7th Cir. 2014) (holding that, where plaintiff and defendant offered different assessments of feasibility of proposed accommodation, in granting summary judgment to the defendant, “the judge was attempting to resolve a genuine factual dispute without a trial”); Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014) (holding that plaintiff adduced sufficient evidence that reasonable accommodation was possible based on evidence that she “simply needed further medical testing and a prescription to control her narcolepsy”).

The district court also erred in holding that, based on its conclusion that Jones was not qualified, it was not required to address whether the County had failed to engage in the ADA’s mandatory interactive process. This Court has held—and the EEOC agrees—that there is no independent violation of the ADA solely for failure to engage in the interactive process. See, e.g., Basden, 714 F.3d at 1039 (observing that “the failure to engage in the interactive process required by the ADA is not an independent basis for liability under the statute”); EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005) (“Failure to engage in this interactive process cannot give rise to a claim for relief, however, if the employer can show that no reasonable accommodation was possible.”) (internal citations and quotation marks omitted).

However, this Court and others have, appropriately, taken a dim view of employers’ responding to legitimate accommodation requests by shutting down the interactive process, refusing to discuss the employee’s proposal(s), and/or terminating the requesting employee. See, e.g., Spurling, 739 F.3d at 1061 (reversing summary judgment for employer on failure to accommodate claim where “[r]ather than collaborate with Spurling or her doctor to find a reasonable accommodation, C&M chose to turn a blind eye and terminate her”); Sears, 417 F.3d at 806 (“[O]ur cases … demonstrate that if the employee has requested an appropriate accommodation, the employer may not simply reject it without offering other suggestions or at least expressing a willingness to continue discussing possible accommodations. This reflects the give-and-take aspect of the interactive process. An employer cannot sit behind a closed door and reject the employee’s requests for accommodation without explaining why the requests have been rejected or offering alternatives.”); cf. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009) (stating that employer violates the ADA “including when [it] discharges the employee instead of considering the requested accommodations”).

These and other courts have observed that the employer’s refusal to participate in the interactive process is especially detrimental because the employer usually has the best information about what types of accommodations are most available and feasible in its workplace. See, e.g., EEOC v. Convergys Customer Mgmt. Grp., 491 F.3d 790, 795 (8th Cir. 2007) (noting that, whereas “an employee will typically have better access to information concerning his limitations and abilities,” “an employer will typically have better access to information regarding possible alternative duties or positions available to the disabled employee.”) (internal citation and quotation marks omitted); Chevron Phillips, 570 F.3d at 621-22 (observing that the charging party “was not required to come up with the solution … on her own. Under the ADA, once the employee presents a request for an accommodation, the employer is required to engage in the interactive process so that together they can determine what reasonable accommodations might be available.”).

At least two courts of appeals have stated, accordingly, that summary judgment in the employers’ favor on these types of failure to accommodate claims is rarely appropriate. See Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999) (“…[F]or purposes of summary judgment, the failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith. Under these circumstances, we feel a factual question exists as to whether the employer has attempted to provide reasonable accommodation as required by the ADA.”); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 318 (3d Cir. 1999) (“When an employee has evidence that the employer did not act in good faith in the interactive process, … we will not readily decide on summary judgment that accommodation was not possible …. To assume that accommodation would fail regardless of the employer’s bad faith would effectively eliminate the requirement that employers must participate in the interactive process…. Thus, where there is a genuine dispute about whether the employer acted in good faith, summary judgment will typically be precluded.”); see also Rorrer v. City of Stow, 743 F.3d 1025, 1045 (6th Cir. 2014) (where city officials never made inquiries about whether suggested accommodations were even feasible, “[t]he City’s immediate conclusion that Rorrer was unfit to serve as a firefighter suggests bad faith and falls short of its obligation under the ADA to assist an employee seeking an accommodation”).

Thus, this Court articulated the appropriate test for these kinds of scenarios in Sears when it observed that “we ordinarily look first to whether there is a genuine issue of material fact regarding the availability of a reasonable accommodation, and if it is clear that no reasonable accommodation was available, we stop there.” 417 F.3d at 805 (emphasis added). In this case, a reasonable jury could readily find otherwise. Of the four accommodations Dr. Israel requested for Jones, two of them—limited exposure to the single jail cell where the incident occurred and Jones’ continued therapy with Dr. Israel—are not even mentioned in Albers’ letter as problematic. As to the other two, the letter simply states that “incident management and daily activities could require any staff member to be held over for more than a one-shift period of time.” (Emphasis added.) The letter says nothing about how frequently such a need arises, whether Jones’ duties could be restructured temporarily to minimize the likelihood of such a hold-over while he transitioned back to work, or whether he could make use of additional leave should these circumstances become too much of an obstacle. Also, because Dr. Israel’s accommodation request explicitly stated that he would re-evaluate Jones’ progress two days after he returned to work, a reasonable jury could readily infer that Dr. Israel envisioned a flexible and adaptable accommodation process that would not necessarily last long.

To the extent the defendants may have had any questions about Dr. Israel’s letter or found it somehow ambiguous, this is exactly what the interactive process is for—an opportunity to seek clarification and find a mutually agreeable solution. See Chevron Phillips, 570 F.3d at 622. Accordingly, just as it makes little sense to require a disabled employee to come up with a reasonable accommodation on his own when he requests it, it makes no more sense to do so after the fact, in litigation, when the employer has already stonewalled him and has every incentive to find fault with anything he might propose.

Finally, the district court also erred insofar as it suggested that leave cannot be a reasonable accommodation as a matter of law. See, e.g., Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir. 1998) (holding that accommodation request for 2-4 weeks’ medical leave was reasonable because it was “not unlimited” and because plaintiff’s doctor was “optimistic [the need for it] would be short-lived”); EEOC, Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016) (“An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer…. That is the case even when … the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under … the FMLA or similar state or local laws).”)[4]; EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002) (Q&A No. 21, Example A) (stating that, where an employee with an ADA disability requires thirteen weeks’ leave for disability-related treatment, the first twelve weeks “constitutes both FMLA leave and a reasonable accommodation”; while the employer could deny the employee the thirteenth week under the FMLA, because the employee is also covered under the ADA, it cannot deny the request for the thirteenth week unless it can show undue hardship).[5]

CONCLUSION

For the foregoing reasons, the judgment of the district court as to Jones’ Title VII retaliation and ADA failure to accommodate claims should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 6863 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

Dated: July 28, 2016

[1] The EEOC takes no position with respect to any other issue in this appeal.

[2] Pincites for record documents refer to PACER pagination unless otherwise specified.

[3]The disability was an eye condition unrelated to the PTSD that became the basis for Jones’ later failure to accommodate claim.

[4] At https://www.eeoc.gov/eeoc/publications/ada-leave.cfm.

[5] At http://www.eeoc.gov/policy/docs/accommodation.html.