Statement of Jurisdiction

This is a public enforcement action under the Americans with Disabilities Act. 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(f)(1)). The district court therefore had subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(4), and 1345.

The district court entered summary judgment for LHC on August 9, 2013 (ER:28–51, 5C:3221–45, Vol. 9:112–36),[1] and the EEOC filed a timely notice of appeal on October 2. ER:53–55, 5C:3604–06, Vol. 10:114–16; Fed. R. App. P. 4(a)(1)(B) (60 days). The summary judgment was a final judgment resolving all claims as to all parties, and this Court accordingly has jurisdiction over this appeal under 28 U.S.C. § 1291.

Statement of the Issues

1. Did the Commission offer sufficient evidence that Sones was qualified to be a team leader, that the company’s post-seizure criticisms of her performance were pretextual, and that the company fired her because of her epilepsy?

2. Did the Commission offer sufficient evidence that after Sones’s epileptic seizure LHC rejected her request for computer assistance, a reasonable accommodation?

3. Assuming arguendo that Sones was not qualified to be a team leader even with a reasonable accommodation, did the Commission offer sufficient evidence that Sones was qualified to resume her field nurse duties and that LHC failed to accommodate her by returning her to her former position?

Statement of the Case

This is an appeal from the district court order granting LHC summary judgment in this action that the Equal Employment Opportunity Commission brought to enforce the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. The Commission alleges in this action that LHC discriminated against Kristy Sones, the charging party, on the basis of her disability, epilepsy, by failing to reasonably accommodate her and by firing her because of her epilepsy.

Statement of Facts

Kristy Sones is a registered nurse. 5C:1402, Vol. 4:181 (Sones dep. 18). LHC hired her in November 2006 as a field nurse in Picayune, Mississippi, on an as-needed basis, and later promoted her to full-time field nurse. 5C:1404–05, Vol. 4:183–84 (Sones dep. 25–30). Field nurses travel to patients’ residences and provide home health care. In a typical day, Sones saw six to eight patients and spent up to two hours traveling to and from their homes. 5C:1406, Vol. 4:185 (Sones dep. 33). Sones did a good job as a field nurse. Her annual performance evaluation for 2008 concluded that she was “fully meet[ing] expectations” and recommended that she be trained in team-leader duties. 5C:1990–91; Vol. 6:9–10 (Taggard dep. 35–37). Her supervisor, Jennifer Taggard, frequently praised her performance. 5C:1450, Vol. 4:229 (Sones dep. 212). Indeed, LHC named Sones its employee of the month in January or February 2009. 5C:1450–51, Vol. 4:229–30 (Sones dep. 212–13).

Sones testified that LHC promoted her to team leader in March 2009, ER:56, 5C:1407, Vol. 4:186 (Sones dep. 39–40),^{^[2]} and the Commission offered contemporaneous documentary evidence that she officially became leader of a new team early that May. Taggard sent the office an email on May 7 “welcom[ing] Team C to our office . . . with great excitement,” and announcing that “Kristy Sones will be filling the Team Leader role.” 5C:1524, Vol. 4:303. See also 5C:1528, Vol.4:307 (email dated May 15 acknowledging Taggard’s request for “new computer for Team C team leader Kristy Sones”).

A team leader serves as case manager for dozens of patients and coordinates the schedules of the field nurses who visit those patients, using LHC’s scheduling software. She ensures that doctors’ orders are followed, and she enters test results and reports from the field nurses into the company’s medical-records program. 5C:1408, Vol. 4:187 (Sones dep. 42–43); 5C:1545, Vol. 4:324 (Guchereau dep. 68); 5C:1991, Vol. 6:10 (Taggard dep. 40). Sones’s supervisors did not criticize her performance of her team leader duties in March, April, or May. 5C:1409, Vol. 4:188 (Sones dep. 47–48).

In addition, Sones testified that in May 2009, Thressa Guchereau, LHC’s administrator, offered her a promotion to branch manager in Wiggins, Mississippi. (A branch manager supervises team leaders.) ER:72, 5C:1454, Vol. 4:233 (Sones dep. 226–27). Sones declined the offer because the commute was too long. Id.

LHC’s satisfaction with Sones’s performance changed after Tuesday, May 26, 2009, the day Sones had a grand mal seizure at work. 5C:1410, Vol. 4:189 (Sones dep. 51–52).[3] As a result of the seizure, she went by ambulance to a local hospital emergency room, and the doctor who treated her there released her to return to work on Thursday the 28th. 5C:1995, Vol. 6:14 (Taggard dep. 56); 5C:1410–11; Vol. 4:189–90 (Sones dep. 52–55); 5C:2907, Vol. 8:174 (hospital work release). LHC rejected that release and required Sones to get a release from a neurologist. ER:57, 5C:1411, Vol. 4:190 (Sones dep. 55). Sones saw her neurologist, Dr. Michael Mitchell, on Monday, June 1, and he released her to return to work immediately with only two restrictions: no climbing ladders, and no driving for one year. ER:57–58, 5C:1411–12, Vol. 4:190–01 (Sones dep. 56–60); 5C:1388, Vol. 4:167 (Mitchell restrictions). The driving restriction did not prevent Sones from getting to the office because one of her co-workers was a neighbor and could drive her to work. ER:58, 5C:1412, Vol. 4:191 (Sones dep. 60). Dr. Mitchell also prescribed more powerful anti-seizure medications, and the new regimen left Sones feeling sleepy and impaired her memory somewhat. ER:59–61, 5C:1413–15, Vol. 4:192–94 (Sones dep. 63–64, 67–69); 5C:1722, Vol. 5:119 (Mitchell dep. 15) (a side effect of her new drug is “cognitive slowing”).

Sones returned to work as team leader on Tuesday, June 2. ER:58, 5C:1412, Vol. 4:191 (Sones dep. 59). Sones testified that before her seizure she and Taggard, her supervisor, had enjoyed a good and friendly working relationship, sometimes eating lunch or working out together, but that after her seizure Taggard ignored her, refused to answer her questions, and rejected her lunch invitations. 5C:1427, 1451, Vol. 4:206, 230 (Sones dep. 119–20, 213). Sometime during that first week back, Sones told Taggard that she needed some “extra help” for “a couple of weeks.” ER:59, 5C:1413, Vol. 4:192 (Sones dep. 61). As a result of her new medication levels, she had difficulty remembering her passwords and how the company’s software worked. She wanted some brief written instructions on how to use the software, and she needed to be reminded of her passwords. Id. (Sones dep. 63–64). She testified that Taggard walked away from her without saying anything and never responded to her request. ER:59–60, 5C:1413–14, Vol. 4:192–93 (Sones dep. 61–62, 65). Taggard testified that she does not know what the term “reasonable accommodation” means and does not recall that LHC ever trained her on that topic. 5C:1987, Vol. 6:6 (Taggard dep. 23–24).

Sones worked a shift as a field nurse on Sunday, June 7. ER:60, 5C:1414, Vol. 4:193 (Sones dep. 66–67). Her mother drove her around to her patients’ homes, an arrangement that Guchereau had approved in advance. 5C:1414, 1453–54, Vol. 4:193, 232–33 (Sones dep. 67, 224–25).

LHC offered evidence that Sones had difficulties learning the company’s scheduling and medical-records software programs and using them proficiently.[4] Almost all of this evidence, however, consisted of criticisms that her supervisors generated after her seizure. LHC offered no evidence, documentary or testimonial, that Sones’s supervisors told her before her seizure that her performance as team leader was deficient.

Taggard and Guchereau met with Sones on Friday, June 19. They discussed with her certain incidents where they alleged that she had made mistakes or acted unprofessionally,^{^[5]} and they set a “target date” of July 31 for Sones to “master” all her team-leader duties. 5C:1378, Vol. 4:157 (notes of meeting); 5C:1998–2000, Vol. 6:17–19 (Taggard dep. 68–75). This was not a last-chance agreement: Taggard testified that she did not consider the June 19 document a performance improvement plan and did not warn Sones on the 19th that she would be terminated if she failed to master her team-leader duties by July 31. 5C:2000, Vol. 6:19 (Taggard dep. 75). In fact, Sones testified that this was the first criticism her supervisors had ever given her of her performance as team leader: according to Sones, she was never written up or disciplined as team leader, and the first counseling session she had with Taggard or Guchereau about her performance as team leader was the June 19th meeting. 5C:1409, 1414, Vol. 4:188, 193 (Sones dep. 47–48, 68). Sones further testified that after she discussed with Taggard and Guchereau the incidents they brought up, Taggard and Guchereau agreed that no one had acted improperly in two of the incidents and that in another two incidents primary responsibility for the mistakes lay with Sones’s assistant, not Sones. ER:66–68, 5C: 1439–41, Vol. 4:218-20 (Sones dep. 165–73). Melissa Adelphio, one of the other team leaders at Picayune, observed Sones’s performance of her duties and testified that Sones was doing “fine” as team leader, was a hard worker, and appeared stable and organized. 5C:3070, 3081, 3083, Vol. 8:337, 348, 350 (Adelphio dep. 38, 49, 51).

At some point that same day (the 19th), Taggard expressed concern about Sones’s epilepsy. She told Sones that “if [her] disability manifested again while [she] was on the job, the [company] would be in trouble.” ER:73, RC:2921, Vol. 8:188 (Sones’s EEOC charge).

The next workday, Monday, June 22, Sones missed work (to take her child to a medical appointment), and LHC decided to fire her. 5C:1442, Vol. 4:221 (Sones dep. 177–78); 5C:1380, Vol. 4:159 (June 22 Guchereau email to Brown saying Sones should not “continue in a [team-leader] role”); 5C:1379, Vol. 4:158 (June 22 Guchereau email to Lomax stating Sones “needs replacement”). The company’s witnesses contradicted each other as to who made this decision. Lolanda Brown, LHC’s director of human resources, testified that she, Guchereau, and Taggard made the decision together, but Taggard did not recall participating in the decision and did not even know who made the decision. 5C:1613, Vol. 5:10 (Brown dep. 38); 5C:1993, 2000, 2002, Vol. 6:12, 19, 21 (Taggard dep. 45–46, 76, 83). Brown testified that the company terminated Sones mainly because she had not succeeded in learning how to perform the team-leader duties competently, and because she could not return to a field-nurse position because she could not drive. 5C:1612–14, Vol. 5:9–11 (Brown dep. 34–41).[6]

Sones learned of this decision on Wednesday, June 24, when Brown told her by phone that she was terminated. ER:62, 5C:1416, Vol. 4:195 (Sones dep. 73–74). According to Sones, the phone conversation lasted about one minute. Id. (Sones dep. 74). Brown said nothing about any performance problems or about Sones’s ability to drive. Instead, she stated: “We’re going to[ ] have to let you go because you’re a liability to our company.” Id. Sones testified that when she was terminated, her memory problems were getting better and she was able to do her job, in part because her doctor had, at her request, agreed she could stop taking one of the drugs he had prescribed after her seizure. 5C:1418, 1451–52, Vol. 4:197, 230–31 (Sones dep. 82, 216–17).

The EEOC filed this enforcement action in September 2011 alleging that LHC had failed to reasonably accommodate Sones as a team leader and as a field nurse and that the company had discriminated against her on the basis of her disability when it terminated her. 5C:38–40; Vol. 1:11–13 (EEOC amended complaint at 3–5).

The District Court Decision

The district court granted LHC summary judgment on all of the EEOC’s claims. ER:28–51, 5C:3221–44, Vol. 9:112–35. The court first ruled that the Commission had failed to establish a prima facie case of disability discrimination because it failed to show that Sones was qualified for either position. Traveling to the patients’ residences is an essential function for a field nurse. Sones was prohibited from driving, and the court ruled that the EEOC failed to offer sufficient evidence that a reasonable accommodation existed that would have enabled Sones to visit the patients as required. ER:43–44, 5C:3236–37, Vol. 9:127–28.

With respect to the team-leader position, the record showed, according to the court, that Sones’s performance was deficient in a number of ways and was causing problems for patient care. The EEOC argued that LHC should have accommodated Sones by giving her simple written instructions for the software programs and by allowing her to write down her passwords, but the court ruled that the Commission failed to show that Sones could have performed the team-leader functions satisfactorily even if the company had provided those accommodations. ER:45–47, 5C:3238–40, Vol. 9:129–31.

The district court also ruled that even if the EEOC had established a prima facie case of discrimination, LHC articulated legitimate reasons for terminating Sones and the Commission failed to offer sufficient evidence of pretext. ER:48–50, 5C:3241–43, Vol. 9:132–34. The EEOC had pointed to disability-linked statements by Taggard and Brown, but the court ruled that Taggard’s statement was inadmissible and that Brown’s statement was consistent with the company’s critique of Sones’s performance. ER:49 & n.3, 5C:3242, Vol. 9:133.

The district court also dismissed the EEOC’s claims that LHC violated the ADA by failing to provide Sones a reasonable accommodation, based on its earlier rulings that none of the accommodations the Commission suggested would have enabled her to perform the positions satisfactorily. ER:50, 5C:3243, Vol. 9:134.

Summary of Argument

The district court erred in granting summary judgment on the Commission’s claim that LHC fired Sones because of her epilepsy. Taggard and Brown made statements at and just before her termination linking her termination to her epilepsy. In addition, the Commission offered evidence that LHC’s stated reason for firing Sones—that she could not perform her duties as team leader adequately—was pretextual. Her supervisors did not criticize her performance before her seizure, but soon after her seizure they did criticize it and then quickly fired her.

The Commission also offered evidence that Sones requested an accommodation for the temporary, medication-induced problems she was having with her computer tasks, but LHC ignored that request, failed to engage in an interactive process, and provided no accommodation.

Finally, Brown testified that the company considered allowing Sones to return to her field nurse duties but decided she could not perform those duties because she could not drive. Given the Commission’s evidence that she could have traveled to her patients’ homes without driving there and that the company failed to engage in an interactive process, the district court erred in dismissing the Commission’s claim that LHC failed to accommodate Sones by reassigning her to her former field nurse position.

Argument

I. Standard of review and governing law

This Court reviews district court orders granting summary judgment de novo, viewing “all the facts and evidence in the light most favorable to the non-moving party.” Feist v. La., Dep’t of Justice, 730 F.3d 450, 452 (5th Cir. 2013).

The EEOC claims that LHC discriminated against Sones by terminating her on the basis of her disability. Under the McDonnell Douglas paradigm, the Commission first had to establish a prima facie case by showing that: (a) Sones had a disability; (b) she was qualified for the position in question; and (c) she suffered an adverse action because of her disability. Shirley v. Precision Castparts Corp., 726 F.3d 675, 680 (5th Cir. 2013); Dupre v. Charter Behavioral Health Sys. of Lafayette Inc., 242 F.3d 610, 614 (5th Cir. 2001).^{^[7]} LHC would then have the burden to articulate a legitimate nondiscriminatory reason for terminating her, and the Commission would have an opportunity to show pretext. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009).

The Commission also claims that LHC failed to reasonably accommodate Sones by failing to provide computer assistance and by failing to reassign her to her former field nurse position. With respect to these claims, the Commission had the burden to show that Sones has a disability, that she can perform the essential functions of the job with a reasonable accommodation, and that the employer knew she needed an accommodation and failed to provide it. Mzyk v. N.E. Indep. Sch. Dist., 397 F. App’x 13, 15 n.3 (5th Cir. 2010). In particular, the EEOC had to show there was an accommodation that would permit Sones to perform the essential functions of the position and “that is reasonable in the run of cases.” Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996). LHC would then have the burden to show that the proposed accommodation would not permit her to perform the essential functions or would impose an undue hardship in its workplace. Id.

II. The district court erred in granting summary judgment on the EEOC’s claims that LHC fired Sones because of her epilepsy and failed to reasonably accommodate her.

A. LHC terminated Sones because of her epilepsy.

The EEOC offered evidence that LHC’s managers thought so highly of Sones’s performance as field nurse that they named her employee of the month and promoted her to team leader, but their attitude toward her changed dramatically after she had an epileptic seizure at work. Her supervisor warned her that another seizure would put the company in trouble. Her supervisor and her manager criticized her performance as team leader for the first time and then, several days later, fired her, allegedly for performance reasons. The company never discussed any possible accommodations with Sones, even though she had asked her supervisor for one. Because the Commission established prima facie cases of discriminatory discharge and failure to accommodate and offered sufficient evidence that LHC’s reasons for terminating Sones were pretextual, the district court should have denied summary judgment on these claims.

Sones started working as a team leader sometime in March 2009,[8] and the Commission offered evidence that she performed her duties satisfactorily.[9] According to Sones, neither Taggard nor Guchereau told her that her performance as team leader was deficient in any way until after her seizure in late May.[10] Indeed, it is undisputed that they did not document any problems with her work during March, April, or May. On summary judgment the district court should have inferred from her supervisors’ failure to criticize her performance that they were satisfied with her performance. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 39 (2d Cir. 1994) (district court’s inference—that the absence of criticism in plaintiff’s personnel file was explained by the employer’s informal management style, rather than management’s satisfaction with his performance—favored the employer and was inappropriate on summary judgment). In addition to the lack of pre-seizure criticism, Sones testified that Guchereau offered her a branch manager position in May. A jury could infer that Guchereau would not have offered Sones a position supervising team leaders had Guchereau believed that Sones’s performance as team leader was deficient. See Hussain v. Highgate Hotels, Inc., 126 F. App’x 256, 264 (6th Cir. 2005) (“An employer generally would not award an employee a performance bonus or offer him a promotion unless that employee was satisfying the employer’s performance expectations.”).

LHC argued that Sones performed poorly as team leader because her computer and typing skills were deficient and she had difficulties multi-tasking and using the company’s computer programs accurately and proficiently. The company also alleged that she sometimes transmitted information inaccurately and used an unprofessional tone of voice. The bulk of this evidence, however, was criticism that Taggard and Guchereau generated after her seizure. The principal evidence LHC offered that anyone criticized Sones’s performance as team leader before her seizure was the testimony by Kayla Wormser. Wormser testified that she was the first person to train Sones in using LHC’s medical-records and scheduling software. She testified that Sones had significant difficulty learning these programs, but she conceded that this evaluation was based solely on her contact with Sones during Sones’s first week—or possibly her first two weeks—of training. 5C:1687–88, Vol. 5:84–85 (Wormser dep. 30–31).

Indeed, the EEOC’s strongest evidence that Taggard’s and Guchereau’s heavy criticism of Sones’s performance on June 19, which led within three workdays to her termination, was caused by her disability and was therefore pretextual is the dramatic contrast between the near absence of criticism before her seizure and the intense criticism (leading to her rapid termination) generated after the seizure. See, e.g., Miles-Hickman v. David Powers Homes, Inc., 613 F. Supp. 2d 872, 882–85 (S.D. Tex. 2009) (where employer stated it fired plaintiff for attendance problem, plaintiff showed pretext with evidence that within three weeks after employer learned she had a disability and wanted an accommodation, employer issued novel criticism of her performance, imposed a new work rule, and then terminated her without using progressive discipline); Martin v. AT&T Corp., 331 F. Supp. 2d 1274, 1802 (D. Colo. 2004) (plaintiff established a causal connection for his ADA retaliation claim because employer gave him new criticisms of his performance the day after he requested an accommodation, and within three weeks downgraded his performance evaluation and designated him to be RIF’d); Cinelli v. U.S. Energy Partners, 77 F. Supp. 2d 566, 575–76 (D.N.J. 1999) (court denied summary judgment where employer terminated plaintiff three days after learning he had terminal cancer); cf. Hunt-Golliday v. Metro. Water Reclamation Dist., 104 F.3d 1004, 1014–15 (7th Cir. 1997) (summary judgment was improper on plaintiff’s retaliation claim where her supervisor initiated unusual and questionable disciplinary actions soon after plaintiff filed an internal discrimination complaint).

Moreover, terminating Sones on Wednesday, June 24, was suspicious because Taggard and Guchereau had not threatened the previous Friday to terminate her. To the contrary, they had told her she would have until July 31 to master her team leader duties. See supra page 8.

The Commission also offered evidence that Sones’s supervisors were thinking about her seizure at the same time that they were criticizing her job performance. According to Sones, Taggard told her on June 19 that “if [her] disability manifested again while [she] was on the job, the [company] would be in trouble,” and Brown told her on the 24th, while firing her: “We’re going to have to let you go because you’re a liability to our company.” ER:73, 5C:2921, Vol. 8:188 (Sones’s EEOC charge); ER:62, 5C:1416, Vol. 4:195 (Sones dep. 74). The district court erred in disregarding these comments.

The Commission’s evidence that Taggard made the “disability” comment was a statement by Sones in her charge, and the district court ruled that statements in a charge are not admissible evidence. ER:49, 5C:3242, Vol. 9:133. The district court erred in deeming the statement in Sones’s charge inadmissible. Taggard’s statement was an admission against interest by an LHC agent, Fed. R. Evid. 801(d)(2), 804(b)(3), and Sones had personal knowledge of the statement and signed her charge under penalty of perjury. The statement was therefore admissible at summary judgment. See, e.g., Yeomans v. Forster & Howell, Inc., No. 09-488l, 2010 WL 3716394, *3–4 (M.D. Ala. Sept. 10, 2010) (charge that plaintiff signed and swore to satisfies 28 U.S.C. § 1746 and is admissible evidence at summary judgment); Alvarado v. Shipley Donut Flour & Supply Co., 526 F. Supp. 2d 746, 764 (S.D. Tex. 2007) (statement in charge plaintiff signed and swore to admitted as sufficient evidence to oppose summary judgment); cf. Huckabay v. Moore, 142 F.3d 233, 240 n.6 (5th Cir. 1998) (statements in verified complaint were admissible at summary judgment because they satisfied Fed. R. Civ. P. 56(e): they were within the personal knowledge of the affiant, who was competent to testify, and they would otherwise be admissible).

The cases that the district court relied on, ER:49, 5C:3242, Vol. 9:133, are distinguishable. In Stolarczyk v. Senator Int’l Freight Forwarding, LLC, 376 F. Supp. 2d 834, 840–41 (N.D. Ill. 2005), the court excluded the statement in the charge because the employee died after filing her charge and before the defendant could cross-examine her. Moreover, in excluding that statement, the Stolarczyk court erroneously relied on cases addressing the admissibility of hearsay evidence at trial rather than at summary judgment. In Thompson v. Origin Tech. in Business, Inc., No. 99-2077, 2001 WL 1018748, *8 (N.D. Tex. Aug. 20, 2001), the plaintiff stated in his charge that his manager had told him he was being terminated because he did not understand the defendant’s business. The plaintiff did not offer this statement in evidence; the employer did, as its sole evidence of its legitimate non-discriminatory reason for firing the plaintiff. The district court ruled that the statement was not admissible when offered by the employer, because it was not an admission by the employer’s opponent.

The district court ruled that Brown’s statement (“We’re going to have to let you go because you’re a liability to our company.”) was not evidence of disability discrimination because the statement was compatible with LHC’s articulated reasons for firing Sones—that her mistakes were causing patient-care problems. ER:49, 5C:3242, Vol. 9:133. The court erred when it discounted Brown’s statement. One can interpret Brown’s statement in a way that is compatible with the company’s alleged legitimate reasons. Under this reading Sones was a liability to the company because her errors were threatening the quality of patient care. But the statement can also be interpreted to support the Commission’s allegation: that the company feared liability arising from any further “manifest[ation]” of her disability, as Taggard stated. Since LHC was seeking summary judgment, the district court had a duty to interpret ambiguous evidence in favor of the EEOC (the non-movant), not the company. See, e.g., Hassan v. Lubbock Ind. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995) (on summary judgment, “‘all fact questions are viewed in the light most favorable to the non-movant’”); Chambers, 43 F.3d at 36 (“[T]he court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.”).

Brown’s statement did not overtly refer to Sones’s disability, but the context and the timing supply the necessary link. Just the previous Friday Taggard had told Sones that the company “would be in trouble” if she had another seizure. See Chavez v. New Mexico, 397 F.3d 826, 835 (10th Cir. 2005) (context can show that conduct or statement that is facially neutral was in fact motivated by discriminatory intent); cf. Ash v. Tyson Foods, Inc. 546 U.S. 454, 456 (2006) (calling a black man “boy” can be evidence of racial animus, depending on such factors as “context, inflection, tone of voice, local custom, and historical usage”).

Thus the district court should have ruled that the statements by Taggard and Brown, especially when viewed together, were admissible evidence showing that LHC terminated Sones because of her disability. Brown told her that LHC was terminating her to avoid the liability she posed to the company, and Taggard told her that the liability the company feared was liability caused by her epileptic seizures.

Finally, LHC argued in the district court that “driving/traveling” was an essential function of the team leader position, and Sones was unable to perform this function. 5C:2022, Vol. 6:41 (LHC motion for summary judgment at 13). However, there is no evidence that any LHC official told Sones that her inability to drive meant she could not continue as a team leader. It is undisputed that a team leader usually worked in the office. LHC’s job description for a team leader states that “[s]ignificant portions (more than 50%) of daily assignments require travel to client/resident/patient locations or other work sites, via car or public transportation,” 5C:1375, Vol. 4:154, but no other evidence substantiated that assertion and substantial evidence contradicted it. Guchereau interpreted the 50% requirement to refer to potential need to travel rather than actual travel and acknowledged that the team leaders performed the bulk of their duties in the office. 5C:1552–53, Vol. 4:331–32 (Guchereau dep. 93–95, 99–100).

Guchereau testified that a team leader had to be able to go to patients’ homes in two types of circumstances: when too few field nurses reported to work to make the required patient visits, and when the team leader needed to supervise or monitor a field nurse as she cared for a patient. 5C:1552, Vol. 4:331 (Guchereau dep. 95–96). But Sones testified that she never observed the other team leaders leaving the office to visit patient homes, ER:69–70, 5C:1448–49, Vol. 4:227–28 (Sones dep. 204–05), and the company offered no evidence that the Picayune team leaders in fact visited patients’ homes.

Even if team leaders did on occasion have to travel to patients’ homes, there is no evidence that they had to drive themselves. The job description itself said the team leader could use “public transportation.” 5C:1375, Vol. 4:154. Taggard acknowledged that public transportation was an option. 5C:1992, Vol. 6:11 (Taggard dep. 41). Mitchell testified that he believed there was a taxicab in town, 5C:1727–28, Vol. 5:124–25 (Mitchell dep. 37–38), and Sones testified there was a van service available, ER:63, 5C:1417, Vol. 4:196 (Sones dep. 78). In addition, it is undisputed that Sones was able to travel to patients’ residences if someone drove her.

In sum, the district court erred in granting summary judgment on the Commission’s discriminatory-discharge claim in the face of Taggard’s and Brown’s disability-related statements and the evidence that the criticisms of Sones’s performance as team leader were delivered only after her seizure and led quickly to her termination.

B. LHC failed to accommodate Sones as team leader.

The Commission’s discriminatory-discharge claim was closely related to its failure-to-accommodate claim because even if Sones was having difficulty with her computer tasks because of her anti-seizure medicine, LHC should have accommodated her request for assistance with these tasks. Sones testified that before her seizure she and Taggard had a very friendly relationship and that Taggard frequently praised her performance as a field nurse. 5C:1427, 1450–51, Vol. 4:206, 229–30 (Sones dep. 119–20, 212–13). After her seizure, however, Taggard became distant and refused to answer Sones’s questions. Id. In particular, shortly after her seizure Sones told Taggard she needed “extra help” for “a couple of weeks,” and Taggard walked away without responding and never discussed that request with her. 5C:1413–14, Vol. 4:192–93 (Sones dep. 61–62, 65). Moreover, the Commission presented evidence that Taggard did not know what the term “reasonable accommodation” means and that LHC never trained her on that topic. 5C:1987, Vol. 6:6 (Taggard dep. 23–24).

This Court in Chevron Phillips found sufficient evidence of failure to accommodate on very similar facts. 570 F.3d at 622. The employee in Chevron Phillips was diagnosed with chronic fatigue syndrome, her doctor recommended two weeks of leave, and the employer granted it. During her leave she brought her supervisor a release from her doctor requesting reassignment to a location nearer her home, and her supervisor rejected that request without investigating whether the reassignment was feasible. 570 F.3d at 610. The employee then brought in a second release from her doctor allowing her to return to her old position and location but imposing certain restrictions on her activities and her scheduling. Her supervisor refused to discuss these restrictions with the employee and just “‘remained silent.’” Id. at 611. This Court held that rejecting the first release without investigating its feasibility violated the employer’s duty to engage in an interactive process once the employee requested an accommodation. Id. at 622. Likewise, the supervisor’s silence in response to the second release was evidence that the employer “refused her the requested accommodations and/or fired her without giving them any consideration.” Id.

Under Chevron Phillips, the district court erred in dismissing the Commission’s claim that LHC failed to accommodate Sones’s request for extra help with the computer. Based on Sones’s testimony, a jury could reasonably find that LHC “refused her the requested accommodations and/or fired her without giving them any consideration.” 570 F.3d at 622. Once Sones requested a feasible accommodation, LHC was “obligated by law to engage in an interactive process,” id. at 621 (punctuation omitted), and when LHC failed to engage in that process, it violated the ADA even if it did not expressly deny her request, as long as it “discharge[d] [her] instead of considering the requested accommodation[ ].” Id. See also Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 (2d Cir. 2000) (employer that ignores request for accommodation and terminates plaintiff for the resulting inadequacy in his performance violates the ADA). The district court therefore should not have dismissed the Commission’s failure-to-accommodate claim on summary judgment. See Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952–53 (8th Cir. 1999) (summary judgment is precluded when the employer failed to engage in an interactive process).

C. LHC violated the ADA by discharging Sones without discussing with her the option of reassigning her to the field nurse position as an accommodation.

The EEOC argued that even assuming arguendo that Sones was not qualified to work as a team leader in June 2009, LHC should have discussed with her whether she could resume working as a field nurse as a reasonable accommodation. See 42 U.S.C. §§ 12112(b)(5)(A) (employer’s duty to provide a reasonable accommodation), 12111(9)(B) (reasonable accommodation may include reassignment to a vacant position). Sones worked as a field nurse for most of her career at LHC and performed well in that position. See supra page 3. The vast majority of the criticisms LHC allegedly had of her performance as a team leader were irrelevant to her ability to work as a field nurse. As a field nurse she would not be responsible for using the company’s software programs and would not have to multi-task under time pressure as the team leaders did. Her managers considered whether Sones could resume her field nurse duties, but decided—without discussing the issue with Sones—that she could not do that because of her driving restriction. See supra page 11 and note 6.

First, driving was not an essential function of the field nurse position; traveling to the patients’ dwellings was. The Commission offered evidence that Sones could have performed that essential function with a reasonable accommodation. It is undisputed, for example, that Sones was able to visit her patients’ dwellings on June 7 because her mother drove her, an arrangement that Guchereau approved. A fact-finder could infer that her driving restriction would not interfere with her need to travel to patients’ homes if someone else took her to her patients’ residences. See Amick v. Visiting Nurse & Hospice Home, No. 05-264, 2006 WL 2989277, *9 & n.13 (N.D. Ind. Oct. 18, 2006) (denying summary judgment in part because medical social worker who visited patients’ homes and had diabetes allegedly preventing her from driving safely offered evidence that the employer could accommodate her by allowing her to get rides to patients’ homes from the visiting nurses).

In addition, Sones testified that Picayune had a van service, and Dr. Mitchell testified that he believed a taxi was available. These options should also have been discussed and investigated. See Henricks v. Bd. of Educ., No. 04-8284, 2008 WL 4126733. *8 (N.D. Ill. Sept. 4, 2008) (denying summary judgment in part because using public transportation may have been a reasonable accommodation for public-school-cafeteria inspector who had leg spasms affecting her ability to drive safely).

At summary judgment, LHC raised a concern about potential violations of the Health Insurance Portability and Accountability Act (HIPAA). 5C:3124–26, Vol. 9:15–17 (LHC reply re summary judgment at 15–17); 42 U.S.C. § 1320d-2. There are several problems with this argument. First, Guchereau approved Sones’s proposal that her mother drive her to her patients’ homes on June 7 without raising any concern about violating HIPAA. ER:60, 71–72, 5C:1414, 1453–54, Vol. 4:193, 232–33 (Sones dep. 67, 224–25). Second, there is no evidence that using public transportation would in fact pose a HIPAA issue. Indeed, LHC’s own description of the field nurse position contemplated using public transportation. 5C:1367, Vol. 4:146.

To the extent that LHC was legitimately concerned about violating HIPAA, the company should have investigated how frequently this concern might arise (by considering, for example, what percentage of LHC’s home-health-care patients in Picayune were sole occupants of the buildings they lived in) and whether the concern could be assuaged (by, for example, assigning Sones to only those patients who were not sole occupants, or having her driver drop her off a few houses away and leave before Sones walked to the patient’s residence).

It is also undisputed that LHC terminated her without engaging in an interactive process aimed at accommodating her, which should preclude summary judgment. See Chevron Phillips Chem. Co., LP, 570 F.3d at 621 (“When an employer does not engage in a good faith interactive process, that employer violates the ADA—including when the employer discharges the employee instead of considering the requested accommodations.”); Fjellestad, 188 F.3d at 952–53 (summary judgment is precluded when the employer failed to engage in an interactive process).

The district court therefore erred in dismissing the Commission’s claim that LHC violated the ADA when it dismissed Sones without discussing with her whether she could work as a field nurse as an accommodation.

Conclusion

The Commission respectfully asks this Court to reverse the district court’s judgment and remand the case for further proceedings.

[1] References to the record start with the page number(s) in the excerpts of record (“ER”), if present there, then the page number(s) in the Fifth Circuit record on appeal (“5C”), and last the page number(s) in the relevant .pdf file (using the volume numbers assigned by the district court clerk).

[2] LHC concedes that it started training Sones as a team leader in March 2009. 5C:2012, Vol. 6:31 (LHC motion for summary judgment at 3). Taggard agreed that Sones became a team leader, but on a trial basis, and she did not remember when. 5C:1991, Vol. 6:10 (Taggard dep. 37). Thressa Guchereau, Sones’s second-level superior, testified that LHC was merely cross-training Sones in team-leader duties so she could substitute for a team leader or maybe become one when the company needed another one. 5C:1545, 1551, Vol. 4:324, 330 (Guchereau dep. 66–67, 89).

[3] Sones had had one seizure earlier (in late 2005) and was diagnosed with epilepsy then and put on anti-seizure medication. 5C:1419, Vol. 4:198 (Sones dep. 86–88). She had discussed her epilepsy before her May 2009 seizure with Taggard, her supervisor. 5C:1427, Vol. 4:206 (Sones dep. 118–19); see also 5C:1995, Vol. 6:14 (Taggard dep. 55–56) (Sones told Taggard before May 2009 that she had had a seizure).

[4] See, e.g., 5C:1546, 1548, Vol. 4:325, 327 (Guchereau dep. 72, 77–78); 5C:1993, Vol. 6:12 (Taggard dep. 47); 5C:1680, 1696–97, Vol. 5:77, 93–94 (Wormser dep. 23, 39–40); 5C:1647, Vol. 5:44 (Mabie dep. 31–32).

[5] The record contains a document summarizing seven incidents or issues allegedly discussed at this meeting. 5C:1378, Vol. 4:157.

[6] See also 5C:1380, Vol. 4:159 (Guchereau June 22 email, stating: “She will not be able to full fill [sic] her role as field staff until she has a [sic] unrestricted [driver’s license].”).

[7] Several decisions by this Court have stated that in addition to showing that she had a disability and was qualified, a plaintiff must also show both that she suffered an adverse action “on account of her disability” and that she was replaced by, or treated less favorably than, non-disabled employees. See, e.g., EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009); McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279–80 (5th Cir. 2000). The requirement in this formulation that plaintiffs prove causation twice (in both of the last two prongs) was dictum in these cases and is an error evidently caused by expanding on the test stated in earlier decisions. McInnis relied on Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997), and Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995). The third prong in Burch and Daigle was that the plaintiff suffered an adverse action, not that she suffered an adverse action “because of her disability.”

[8] ER:56, 5C:1407, Vol. 4:186 (Sones dep. 39–40).

[9] For the purposes of its summary judgment motion, LHC stipulated that Sones has a disability. 5C:2016, Vol. 6:35 (LHC motion for summary judgment at 7 n.18); 5C:3112, Vol. 9:3 (LHC reply re summary judgment at 3). We therefore start by addressing the second prong of the prima facie case, that Sones was qualified.

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