Congress passed the Americans with Disabilities Act (“ADA”) in large part to protect employees from discrimination based on myths, prejudices, and unfounded fears regarding disability and disease. See 29 C.F.R. pt. 1630, App. § 1630.2(l) (noting that, in passing the ADA and the ADA Amendments Act (“ADAAA”), “Congress relied extensively on the reasoning” of School Board of Nassau County v. Arline, 480 U.S. 273 (1987)); Arline, 480 U.S. at 284 (noting Congress’s intent in enacting the Rehabilitation Act to protect employees from “the prejudiced attitudes or the ignorance of others”).

In this case, as alleged in the Commission’s complaint,[1] Massage Envy approved charging party Kimberly Lowe’s request for vacation time to travel to Ghana. Three days before her scheduled flight, however, Ron Wuchko, Massage Envy’s co-owner, told Lowe that if she traveled to Ghana she would be terminated and not permitted to resume work upon her return. R.14 (FAC) ¶ 20. He did so because he incorrectly believed she would contract Ebola, “bring it home to Tampa[,] and infect everyone.” Id. ¶¶ 21-22. This is precisely the type of unfounded concern, fear, and prejudice Congress aimed to eliminate with the “regarded as” prong of ADA coverage. See, e.g., Gordon v. E.L. Hamm & Assocs., 100 F.3d 907, 913 (11th Cir. 1996) (observing that the ADA’s regarded-as disabled “provisions and regulations are intended to combat the effects of archaic attitudes, erroneous perceptions, and myths that have the effect of disadvantaging persons with, or regarded as having, disabilities”); 29 C.F.R. pt. 1630, App. § 1630.2(l) (“This third prong of the definition of disability was originally intended to express Congress’s understanding that ‘unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are often just as disabling as actual impairments, and [its] corresponding desire to prohibit discrimination founded on such perceptions.’” (quoting Senate Statement of the Managers to Accompany S. 3406 at 9; House Education and Labor Committee Report, H.R. Rep. No. 110-730, pt. 1, 2008 WL 2502300, at *13 (2008))).

Rather than addressing these concerns, Massage Envy instead urges this Court to focus narrowly on an issue of timing. It claims, repeatedly, that because it terminated Lowe in anticipation of her contracting a disease during her travels, it cannot have violated the ADA, even though it clearly would have violated the statute if it had waited until Lowe returned to terminate her based on the same fears. See 42 U.S.C. §§ 12102(1), 12112(a). It then wildly exaggerates the EEOC’s position, equating an application of the ADA to forbid Massage Envy’s cynical anticipatory termination with a wholesale elimination of causation and a rewriting of the statute.

We submit this Reply Brief to respond to Massage Envy’s mischaracterizations of both the record and the law. In doing so, two points warrant particular emphasis. First, as explained in our Opening Brief (“EEOC-Br.”), allowing employers to exploit Massage Envy’s “preemptive termination” loophole to skirt their statutory obligations violates the letter and the spirit of the ADA in every respect. Numerous courts, including the Supreme Court, have applied the ADA and other remedial statutes in situations analogous to the one at issue here. Massage Envy’s baseless claims about “eliminating proof of causation” and “rewriting the statute” are as nonsensical as they are overwrought.

Second, although most of the facts underlying the EEOC’s complaint are undisputed, the exact timing of Lowe’s termination and what actions, if any, Massage Envy took after her return from Ghana are somewhat murky. The court based its dismissal of the complaint, in part, on its erroneous view that, in bringing suit, the EEOC was bound by and restricted to the representations in Lowe’s charge, including the exact date of her termination. But, as the district court expressly noted, it dismissed the complaint under Fed. R. Civ. P. 12(b)(6) — not on summary judgment. R.43 at 2 n.1. Thus, insofar as the court’s misunderstanding restricted its consideration of the temporal scope of the complaint, this was reversible error.

Massage Envy characterizes this observation as an attempt to bring new, previously unalleged claims without investigation or conciliation. From the outset, however, all parties have understood that the case arises from Massage Envy’s termination of Lowe because of her visit to Ghana, based on its belief she would contract Ebola from people there and infect others upon her return. Massage Envy’s accusation that the EEOC now seeks to present new claims, based on previously undisclosed facts, is baseless.

ARGUMENT

I. Massage Envy Violated the A DA When It Terminated Lowe Because It Believed She Would Become Disabled on her Vacation.

Under the ADA, an employer may not simply terminate an employee because it believes that employee has a disability. 42 U.S.C. §§ 12102(1), 12112(a). These protections extend to employees suspected of having a disabling communicable disease like Ebola. If the employer suspects an employee of having a disease that poses a direct threat to others, it cannot let its unsubstantiated fears drive its termination decisions. Instead, it must individually assess the employee’s ability to perform the job safely based on reasoned medical judgment, current medical knowledge, and the best available objective evidence. 42 U.S.C. §§ 12111(3), 12113(a), (b); 29 C.F.R. §§ 1630.2(r), 1630.15(b)(2).

In its Answer Brief (“Ans.”), Massage Envy relies on a single argument: that it successfully avoided the requirements of the ADA by proactively terminating Lowe before she left for Ghana, where, Wuchko was certain, Lowe would contract Ebola. Massage Envy refers repeatedly to the preemptive nature of the termination, emphasizing that it did not yet consider Lowe disabled “at the time of her discharge.” Ans. 12, 22, 24, 28, 45.[2]

Massage Envy’s argument fails because the ADA is not so limited. Although the statute defines disability using the present tense, see 42 U.S.C. § 12102(1), its text explains that the statute must be construed “in favor of broad coverage of individuals … to the maximum extent permitted.” 42 U.S.C. § 12102(4)(A). And as the Dictionary Act explains regarding statutory interpretation, “words used in the present tense include the future as well as the present” unless the context indicates otherwise.[3] 1 U.S.C. § 1; see Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 965 (11th Cir. 2016) (en banc) (noting the application of the Dictionary Act to the interpretation of statutory verb tenses). Massage Envy repeatedly characterizes the EEOC’s position as an attempt to “rewrite the ADA.” Ans. 11, 18, 39. But it is nothing more than a simple application of the Dictionary Act to the words of the statute.

Massage Envy urges this Court to ignore the Dictionary Act and instead focus on the ADA’s use of the present tense because, it claims, the ADA’s context requires it. Ans. 18-20. In fact, the opposite is true. The Supreme Court has clearly explained that statutory language must be evaluated “by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).[4] Thus, to understand the plain meaning of a statute, a court must look at the totality of the statutory scheme — not each word in isolation, as Massage Envy contends. A proper reading of the ADA, accounting for the statute’s full context, shows that the statute’s protections apply to Lowe’s termination.

Congress included the “regarded as” clause in the definition of disability to acknowledge the pernicious effects of “unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities.” 29 C.F.R. pt. 1630, App. § 1630.2(l). In using this language, Congress relied extensively on Arline’s reasoning concerning the Rehabilitation Act. Id.; see Arline, 480 U.S. at 284 (“[S]ociety’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness.”). Thus, Congress structured the ADA “to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments.” Id. at 285. Massage Envy’s termination of Lowe based on her intent to travel to Ghana — a country in the same continent as an Ebola outbreak, but nowhere near the affected area[5] — was just such a reflexive reaction based on myths and fear rather than reasoned and medically sound judgment. As such, it falls squarely within the realm of protections Congress intended to offer through passage of the ADA.

In addition, Congress amended the ADA in 2008, via the ADAAA, to require courts to construe the statute to provide maximal coverage, as borne out both in the statutory text itself and its legislative history. 42 U.S.C. § 12102(4)(A) (noting that the definition of disability is to be “construed in favor of broad coverage of individuals … to the maximum extent permitted”); ADAAA, Pub. L. 110-325, § 2(b)(1), 122 Stat. 3553, 3554 (2008) (noting Congress’s intent to “reinstat[e] a broad scope of protection to be available under the ADA”). To the extent there is any doubt regarding the scope of protection under the ADA, Congress thus showed that a broad interpretation favoring more expansive coverage is appropriate.

The only ADA case Massage Envy cites for its narrow position (Ans. 18, 39) is D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220 (11th Cir. 2005), which applied the pre-ADAAA version of the statute and endorsed an expansive — not restrictive — interpretation of its protections. Id. at 1236-38. Nothing in that decision supports Massage Envy’s context-blind interpretation of the verb tense used in the ADA, particularly in light of Robinson’s clear and controlling instruction regarding context.

As explained in the EEOC’s Opening Brief, numerous appellate courts have applied the ADA’s language to future occurrences, even though the language is drafted in the present tense. See EEOC-Br. 19-20. The courts’ interpretation of this language tracks their approach to analogous statutes, in which use of the present tense does not preclude the statutes’ application to the past or the future when such an application squares with the clear statutory purpose. Id. at 20-22. Thus, the ADA’s reference to reassignment to “vacant positions” includes reassignment to positions that are not yet vacant but will become so in a reasonable amount of time, and Title VII’s antiretaliation protection afforded to “employees” extends to former employees as well. Id.

Massage Envy’s argument for rejecting these authorities — that “vacant position” and “employee” “are not verbs,” Ans. 20 — fails to address the EEOC’s central premise: that courts often look to the broader context of the statute as a whole, applying statutory protections without regard to narrow temporal restrictions, when doing so is necessary to give effect to the statutory purpose as stated in the text. See, e.g., Robinson, 519 U.S. at 345-46 (interpreting “employees” to include “former employees” based on the interpretation’s “coherence and … consistency with a primary purpose” of the statute, particularly because a contrary interpretation “would provide a perverse incentive for employers” to anticipatorily terminate employees with potential discrimination claims).

As explained in the EEOC’s Opening Brief, the court in Shell v. Burlington Northern Santa Fe Railway Co., No. 15-cv-11040, 2018 WL 1156249 (N.D. Ill. Mar. 5, 2018), applied this principle in a dispute similar to the one at issue in this case. The court concluded that the ADA protected an individual from an employer’s discriminatory action taken before the manifestation of a feared disability. Id. at *4-5. Massage Envy dismisses the opinion as “very confusing.” Ans. 23 n.9. But Shell’s holding is quite clear: the employer’s argument (which Massage Envy repeats here) — that “it should be free to discriminate against those who are likely to have disabilities but have not yet developed them” — was “facially illogical and antithetical to the protections afforded by the Americans with Disabilities Act and other anti-discrimination statutes.” Shell, 2018 WL 1156249, at *5 n.4.

Massage Envy also points to Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016), to dispute Shell’s persuasiveness. As explained in the EEOC’s Opening Brief, however, the Eighth Circuit’s opinion in Morriss relies on a dubious distinction between a “physical characteristic,” not itself impairing, and its tendency to cause an unacceptable risk of a future “physical impairment.” EEOC-Br. 25-26. And, regardless, this case involves neither. Lowe had no physical condition relevant to Massage Envy’s perception of her as disabled. Instead, the company terminated her based on its belief that she had a specific and imminent likelihood of contracting Ebola on her vacation.

Attempting to fit the logic of this case into the Morriss framework, Massage Envy claims that Lowe’s determination to travel to Ghana is the same as a “predispos[ition] to developing an illness or a disease,” which is not an impairment under the ADA. Ans. 16. This is, of course, nonsensical. The EEOC does not claim Lowe had any characteristic predisposition to an impairment. Instead, its suit is based on Massage Envy’s termination of Lowe in anticipation of her contracting or associating with people who had contracted Ebola, which is indisputably an impairment under the ADA. To claim that this case involves anything that could fall under the “characteristic predisposition to illness or disease” exclusion from the ADA’s coverage is to strip both the regulations and the FAC’s allegations of all meaning.

Unable to dispute the logic of the EEOC’s position, Massage Envy then turns to histrionics — an approach not dissimilar to the hysteria it showed in terminating Lowe in the first place. The company repeatedly claims that an application of the ADA to Lowe’s case “would eliminate [the ADA’s] required proof of causation” and “would render the ‘regarded as’ prong meaningless.” Ans. 13, 20; see id. at 11, 21, 28, 29, 40. Elsewhere, it claims the interpretation would create “a catch all cause of action for employment decisions,” id. at 11, and “would arm every single individual employed by a covered entity with a potential cause of action under the ADA.” Id. at 19. These statements are not mere hyperbole; they are fictions that make no sense when applied to the EEOC’s actual argument.

As the FAC makes plain, the EEOC had an unmistakable causal basis for its allegations: Massage Envy terminated Lowe because it feared she would become infected with Ebola in Ghana and would associate with others there who were disabled by the disease. R.14 (FAC) ¶¶ 20-23, 25, 29. Its perception of Lowe’s imminent disability (and imminent association with people having a disability), and its decision to terminate her based on that perception, are what give rise to the EEOC’s ADA claims. Massage Envy does not dispute this factual predicate (and even if it did, the EEOC’s factual allegations must be accepted as true at the motion to dismiss stage, Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010)). Whether Wuchko terminated Lowe because he believed she had already contracted Ebola or instead because he believed she would contract Ebola on her vacation, set to start three days later, the causal element is clearly established. Massage Envy’s repeated claim that the EEOC seeks to eliminate causation from the statute is groundless.

Similarly baffling is Massage Envy’s repeated emphasis that the ADA defines disability “with respect to an individual.” Ans. 10, 14-15, 25. This is an accurate recitation of the statute, but Massage Envy never explains its purpose in continually quoting this language. Massage Envy cannot seriously dispute that the EEOC based its lawsuit on the company’s having terminated Lowe because it regarded her — an individual — as disabled under the statute, and because it feared that she — an individual — would associate with Ebola victims in Ghana. If Massage Envy means to imply that the EEOC’s case is based on anything other than the company’s actions in firing Lowe based on myths, fears, and prejudices about Ebola, that implication is baseless.

Finally, Massage Envy argues that the EEOC claims the ADA “protects Ebola itself without regard to whether ME discharged Lowe because she had Ebola or because ME believed that she did.” Ans. 26. It is difficult to understand what Massage Envy means by “protect[ing] Ebola itself.” Id. Again, to the extent Massage Envy contends the EEOC’s lawsuit is somehow not based on the company’s termination of Lowe because it believed she would contract Ebola and associate with people who had already contracted Ebola on her imminent vacation, the argument is based on a willful misreading of the FAC.

One other Massage Envy gambit deserves brief mention. Despite the extensive support the EEOC presented justifying its arguments, Massage Envy’s Answering Brief repeatedly characterizes its position as “frivolous, unreasonable and without foundation” in an apparent attempt to extract a preemptive fee award from this Court before the district court rules on the issue. Ans. i, 12, 40; see Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) (explaining that attorney’s fees may only be awarded against an unsuccessful Title VII plaintiff upon a finding that its lawsuit was “frivolous, unreasonable, or without foundation”). Its exaggerations throughout its Answering Brief, as exemplified by this premature grab for attorney’s fees, are unjustified and inappropriate.

II. Massage Envy Terminated Lowe Because It Believed She Would Associate with Disabled Individuals on her Vacation, in Violation of the A DA.

Massage Envy’s arguments about the EEOC’s ADA association claim fail for the same reasons. The FAC alleged that Massage Envy terminated Lowe because it anticipated she would associate with Ebola victims in Ghana during her trip. This, the EEOC contended, violated the ADA’s prohibition on discrimination against an employee “because of the known disability of an individual with whom” the employee “is known to have a relationship or association.” R.14 (FAC) ¶ 29; 42 U.S.C. § 12112(b)(4); see 29 C.F.R. § 1630.8. Congress intended this section of the statute, in part, to protect employees who are targeted for discrimination based on “fears or stereotypes” regarding their association with a disabled person. Saladin v. Turner, 936 F. Supp. 1571, 1581 (N.D. Okla. 1996); see generally Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1081-83 (10th Cir. 1997) (summarizing legislative history of provision); Larimer v. Int’l Bus. Machs. Corp., 370 F.3d 698, 700 (7th Cir. 2004) (explaining the provision applies, in part, to “disability by association,” when an employer knows of an employee’s disabled associate and fears the employee will contract the disability).

For the same reasons outlined above with respect to the “regarded as” claim, the district court erred in refusing to recognize the validity of the EEOC’s association cause of action merely because the termination was preemptive rather than reactive. See supra at 6-13. Congress intended the ADA to protect individuals against disability-based discrimination stemming from myths, fears, prejudice, and ignorance. Here, Lowe’s termination was based on just such elements. Whether the termination itself occurred immediately before or immediately after the association with purportedly infectious individuals during Lowe’s trip to Ghana, Massage Envy’s discriminatory motivation was the same. The statutory context, the Dictionary Act, and prior interpretations of the ADA and other remedial statutes all indicate that the ADA applies to the anticipatory termination at issue here.

The district court also erred in insisting that an ADA association claim must be based on an association with a specific individual who has an actual disability. R.43 at 12. First, there is no reason an association claim must depend upon an association with a specific, identifiable individual. As noted in Den Hartog, Congress explained the intent of this section with the example of an employer discriminating against an individual who volunteered by helping AIDS victims. Den Hartog, 129 F.3d at 1082 (quoting House Judiciary Committee Report, H.R. Rep. No. 101-485, pt. 3, at 38-39 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 461-62). Nothing in Congress’s example depends on the plaintiff’s ability to identify a specific AIDS victim known to the employer.

The cases Massage Envy cites, Ans. 30-31, are not to the contrary; they merely stand for the proposition that an actual association with disabled individuals, rather than generalized advocacy on behalf of people with a disability, is necessary for the provision to apply. See Oliveras-Sifre v. P.R. Dep’t of Health, 214 F.3d 23, 26 (1st Cir. 2000) (noting that the appellants “contend, in essence, that they were punished for their advocacy on behalf of individuals with AIDS,” and concluding that the claim should be analyzed as one of retaliation rather than association); Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 215-16 (4th Cir. 2002) (rejecting doctor’s ADA association claim based on her “advocacy” on behalf of dialysis patients); Tyson v. Access Servs., 158 F. Supp. 3d 309, 311 (E.D. Pa. 2016) (refusing to recognize ADA association claim based on plaintiff’s work “advocat[ing] for the rights of … disabled clients,” though noting that “termination based on fear of an employee contracting or spreading [an associate’s] disease” would give rise to a valid association claim).

Second, there is no justification for requiring the associate to have an actual disability (rather than merely being regarded incorrectly by the employer as disabled). The statute protects employees from discrimination based on “the known disability” of the employee’s associate. 42 U.S.C. § 12112(b)(4). The statutory definition of “disability” includes not just having a physical or mental impairment, but “being regarded as having” an impairment as well. 42 U.S.C. § 12102(1). Thus, the provision clearly covers the situation in which employment discrimination arises because the employer regards the associate as having a disability, even if that belief is mistaken. Massage Envy cites no cases supporting a contrary understanding of the statute.

Massage Envy’s attempts to distinguish the EEOC’s cases supporting this point fall short. The EEOC cited Jackson v. Service Engineering, Inc., 96 F. Supp. 2d 873 (S.D. Ind. 2000), and Marchioli v. Garland Co., No. 5:11-cv-124, 2011 WL 1983350 (N.D.N.Y. May 20, 2011), solely for the principle that the employer’s belief in an associate’s disability need not be accurate for liability to attach. EEOC-Br. 29-31. Rather than address the relevant point, Massage Envy merely notes the cases involved a current, rather than imminent, association. Ans. 32-33. That does nothing to refute the point for which the EEOC cited the cases.

The district court’s interpretation would also lead to the absurd result that an employer would be free to discriminate against an employee for associating with an individual he believed to be disabled, so long as that belief was factually incorrect. The ADA is not designed to shield employers from liability based on the faultiness of the information underlying their discriminatory motive. See United States v. Pirela Pirela, 809 F.3d 1195, 1201-02 (11th Cir. 2015) (“[N]othing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or absurd conclusion.” (internal citations and quotation marks omitted)). Indeed, Congress passed the ADA to prohibit discrimination based on just such “unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities.” 29 C.F.R. pt. 1630, App. § 1630.2(l). This is why the statute demands that employers make disability-related decisions based on reasoned medical judgment, current medical knowledge, and objective evidence. 42 U.S.C. §§ 12111(3), 12113(a), (b); 29 C.F.R. §§ 1630.15(b)(2), 1630.2(r). Massage Envy provides no explanation why such an obvious inconsistency — one undercutting a central purpose of the ADA — should be permissible under the law.

As with its response to the “regarded as” claim, Massage Envy incorrectly argues that the EEOC waived its right to refer to the Dictionary Act on appeal, and that an interpretation of the ADA based on the Dictionary Act would somehow eliminate the need for causation. Ans. 28-29. Neither argument has merit, as explained above. The EEOC is entitled to cite additional authorities supporting the position it took in the district court. See Yee, 503 U.S. at 534; Pugliese, 550 F.3d at 1304 n.3. And the causal element obviously remains part of any association claim under the EEOC’s approach and is clearly met here: Massage Envy terminated Lowe because it believed she would contract Ebola from associates in Ghana who had the disease. R.14 (FAC) ¶¶ 22, 29. The basis for Massage Envy’s claim that applying the association provision to anticipatory termination “would render it completely meaningless,” Ans. 29, is difficult to fathom.

III. The District Court Misunderstood the EEOC’s Role in Enforcing the A DA and Erroneously Limited its Consideration of the EEOC’s Complaint as a Result.

As explained in the EEOC’s Opening Brief, the district court erroneously held that an employee’s charge limits the scope of a potential EEOC suit based on an investigation of that charge. EEOC-Br. 34-40. The EEOC may sue based on any violations it uncovers during a reasonable investigation of the charge; it is not limited by the charge’s four corners. Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 325-26 (1980); EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir. 2005). Massage Envy does not, and cannot, contest this settled point of law.

Instead, Massage Envy attempts to recast what is, at bottom, no more than a question of semantics into a malevolent attempt by the EEOC to spring new legal claims upon it at the last minute without investigation or conciliation. There is no truth to Massage Envy’s accusations. Rather, the EEOC’s point is simply that the district court’s misunderstanding of the proper relationship between Lowe’s charge and the scope of this suit led it to misconstrue the EEOC’s existing claims and, ultimately, dismiss the FAC improperly.

After recounting its mistaken view that the EEOC’s claims in this lawsuit were limited to the precise allegations of Lowe’s charge, the district court stated that it would “consider[] the EEOC’s discrimination claims only to the extent that they apply [to] Lowe’s October 22, 2014 termination.” R.43 at 5. The court noted that it was crediting Lowe’s representation in her charge, and the EEOC’s statement in its Letter of Determination (“LOD”), that this was her termination date, which it characterized as “undisputed.” Id. at 2 n.1. But the portion of the LOD the court quoted was simply a recitation of Lowe’s allegations; the EEOC itself made no such determination regarding the termination date. See R.16-2 (LOD) at 1.

Moreover, at the time of the district court’s decision, discovery was still ongoing. For purposes of this litigation, it had not been established at exactly what point Lowe’s termination took effect, regardless of what she herself may have believed (or told the EEOC during the investigation). Lowe’s employment relationship with Massage Envy could have ended at any of several times: on October 22, when she landed in Ghana, when she returned to Tampa, or even when she attempted to return to work thereafter.[6] It was legally inappropriate for the court to limit the factual scope of the claims in the EEOC’s suit based on the specifics of Lowe’s charge, especially on a motion to dismiss. Cf. Caterpillar, 409 F.3d at 833 (“If courts may not limit a suit by the EEOC to claims made in the administrative charge, they likewise have no business limiting the suit to claims that the court finds to be supported by the evidence obtained in the Commission’s investigation.”).

The EEOC is well aware of its representations to the district court,[7] and it is not “reversing itself” on appeal or seeking to add new legal claims. Rather, its point in its Opening Brief was that it is unclear how the district court’s legal error about the charge constraining the scope of the EEOC’s lawsuit affected its decisional process. EEOC-Br. 39-40. Insofar as its misunderstanding limited the court’s consideration of the temporal scope of the allegations in the FAC, or led it to deny the EEOC the chance to amend its complaint to include a later time frame, the error warrants reversal.

In its Answering Brief, with no viable argument that the district court assessed the EEOC’s administrative role correctly, Massage Envy contends the EEOC would lack “standing” to bring a failure to rehire or reinstate claim. Ans. 34-35. This is a puzzling argument, given the Commission’s unquestionable standing to bring suits to enforce the ADA under 42 U.S.C. §§ 706(f) and 12117(a). Massage Envy then maintains that it took no prohibited actions against Lowe and, even if it did, was entitled to do so under a “direct threat defense.” Ans. 35. Such factual disputes are not appropriate for consideration on a motion to dismiss, which requires accepting the complaint’s factual allegations as true and construing them in the light most favorable to the plaintiff. Am. Dental Ass’n, 605 F.3d at 1288.

Massage Envy then mounts a number of meritless accusations about the EEOC’s allegedly impure motives. First, Massage Envy accuses the EEOC of a bad-faith attempt “to remove ‘the element of future impairment’ as an issue throughout this litigation.” Ans. 35. While it is unclear what this means, Massage Envy’s allegations of “disingenuous[ness]” are misplaced. For example, the company devotes several pages in its Answering Brief to alleged inconsistencies in the EEOC’s position, culminating with criticism of the EEOC’s use of the term “imminent” on appeal. Massage Envy contends that the Commission does so here “[f]or the first time” and that this amounts to “word smithing and obfuscation.” Ans. 37.

These criticisms are groundless. The EEOC has made the same argument since the beginning of this case. In its initial Complaint, the EEOC alleged that, three days before Lowe’s trip, Massage Envy “demanded that Lowe cancel her trip to Ghana or be terminated,” and that it took this position “because of the company’s concern that she would be infected with Ebola if she traveled to Ghana.” R.1 ¶ 17. Massage Envy then terminated her “based on its unfounded fears and beliefs about Ebola and Lowe’s risk for the disease.” Id. ¶ 23. The FAC similarly alleges that, three days before her trip, Massage Envy “told Lowe that if she traveled to Ghana she would be terminated.” R.14 ¶ 20. It took this stance because Wuchko believed Lowe “would be infected with Ebola if she traveled to Ghana and would ‘bring it home to Tampa and infect everyone.’” Id. ¶ 22.

In opposing Massage Envy’s Motion to Dismiss, the EEOC argued to the district court that Massage Envy terminated Lowe based on “its fear that she would contract Ebola during an approved trip to Ghana, West Africa, and then spread the disease to Massage Envy’s employees and clients upon her return to the United States.” R.20 at 1-2. This contention — that Wuchko believed Lowe’s imminent trip would lead to her contracting Ebola — has been the focus of the EEOC’s case from the beginning. See Webster’s Third New Int’l Dictionary 1130 (1976 ed.) (defining “imminent” as: “1: ready to take place: near at hand: IMPENDING”). Massage Envy’s objection to this ostensibly “new” argument is meritless.

Massage Envy’s feverish accusations about the EEOC’s claims not tracking its earlier investigation and conciliation efforts (Ans. 38-39), are similarly baseless. With the exception of the details of Lowe’s final termination, virtually all the facts at issue here are undisputed and have been consistent from the outset: Lowe’s employer informed her three days before her planned trip to Ghana that it would terminate her if she went there because it believed she would contract Ebola, bring the disease back to the United States, and infect others. Any further amendments to the complaint would arise out of this identical nexus of facts and actors, and would differ only in that they might attach to a later termination date than October 22. Cf. Tiller v. Atl. Coastline R.R. Co., 323 U.S. 574, 581 (1945) (finding “no departure” between an original and amended complaint when “[b]oth … related to the same general conduct, transaction and occurrence”).

Accordingly, the investigation and conciliation that already occurred with respect to Lowe’s charge was complete, even as to a potential further amended complaint. The conciliation requirement is a means of using “[c]ooperation and voluntary compliance” to “bring employment discrimination to an end.” Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1651 (2015) (internal quotation marks omitted). To that end, the EEOC fully informed Massage Envy of the people, events, and acts giving rise to its investigation and conciliation efforts, and the company cannot credibly argue otherwise. Massage Envy does not even suggest that the outcome of conciliation would have been different if the EEOC had characterized the company’s treatment of Lowe postdating October 22, 2014, as a separate “failure to rehire” claim. Thus, its protestations about a lack of investigation and conciliation, or a disconnect between these efforts and the EEOC’s ultimate lawsuit, have no merit. They are simply an attempt to create an inconsistency where none exists, and to distract this Court from the central issues in this appeal.

CONCLUSION

For the foregoing reasons and the reasons stated in the EEOC’s opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). This brief contains 6,031 words, from the Introduction through the Conclusion, as determined by the Microsoft Word 2016 word processing program, with 14-point proportionally spaced type for text and footnotes.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

Dated: November 7, 2018

[1] All references to the “complaint” in this brief refer to the EEOC’s First Amended Complaint (“FAC”) (R.14), unless otherwise specified.

[2] So certain is Massage Envy of its correctness that it labels the EEOC “frivolous, unreasonable and without foundation,” and even “Kafkaesque,” in daring to disagree. Ans. i, 12, 40. As explained in greater detail infra at 17-18, Massage Envy uses this language in a blatant attempt to secure a ruling on attorney’s fees from this Court before the district court has ruled on the issue.

[3] Massage Envy contends the EEOC somehow waived this argument by not citing the Dictionary Act to the district court. Ans. 17-18, 28-29. But the EEOC clearly argued below that the ADA applies to discrimination based on an employer’s belief about the employee’s likelihood of becoming disabled in the future. R.20 (EEOC Opp. to Mtn. to Dismiss) at 10-15. The waiver rule does not bar inclusion of additional arguments or authorities on appeal in support of a legal claim advanced below. See Yee v. Escondido, 503 U.S. 519, 534 (1992) (“Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.”); Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304 n.3 (11th Cir. 2008) (“Although new claims or issues may not be raised, new arguments relating to preserved claims may be reviewed on appeal.”); Puerta v. United States, 121 F.3d 1338, 1341-42 (9th Cir. 1997) (noting that “[a]n argument is typically elaborated more articulately, with more extensive authorities, on appeal than in the less focused and frequently more time pressured environment of the trial court, and there is nothing wrong with that,” and rejecting the claim that the argument had been waived as “[m]eritless” and “frivolous”).

[4] Curiously, Massage Envy does not address this language, highlighted in the EEOC’s Opening Brief. In fact, it does not make a single mention of Robinson, even though, as a Supreme Court case concerned with the temporal scope of antidiscrimination laws, Robinson is obviously directly relevant. Instead, Massage Envy seeks support from two bankruptcy cases, neither of which indicates that a court must analyze the words of a statute without reference to the broader context of the statutory language as a whole. See Ans. 18.

[5] Oddly, Massage Envy chides the EEOC for stating in its initial Complaint that Ghana had no Ebola outbreak in 2014 but leaving that fact out of its FAC. Ans. 30 n.11. There was no Ebola outbreak in Ghana in 2014. See EEOC-Br. 4 & n.2.

[6] All of these theories are consistent with the allegations in the FAC, and with the Commission’s findings in paragraph 3 of the LOD. R.14 ¶¶ 20, 25; R.16-2 at 1. Massage Envy nonetheless claims they are somehow improper, based on several cases relating to the statute of limitations for filing EEOC charges. Ans. 36 & n.17. Because Lowe’s charge in this case was undisputedly timely, these cases are inapposite.

[7] Massage Envy implies the EEOC somehow acted improperly in not including the opposition brief it filed in the district court in its Appendix. See Ans. 38 n.18. But neither the Eleventh Circuit’s Local Rules nor the Federal Rules of Appellate Procedure require or counsel its inclusion. See 11th Cir. Rule 30-1(a); cf. Fed. R. App. P. 30(a)(2) (“Memoranda of law in the district court should not be included in the appendix unless they have independent relevance.”).