TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS………….………………….…..C-1

TABLE OF CONTENTS ...………………………………………………………. i

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

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

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

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

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

District Court Decision........................................................................... 7

SUMMARY OF ARGUMENT......................................................................... 8

ARGUMENT.................................................................................................. 10

The district court erred by failing to address the statutory additions that Congress made to the ADA and by relying on pre-amendments law to rule that Rodriguez did not have a disability. ...................................................................... 10

I. Rodriguez’s HIV infection substantially limits the functions of his immune system, and so is a disability under the first prong of the disability definition. ....................................................................................................... 12

II. Rodriguez could establish he was disabled under the other prongs of the disability definition -- “regarded as” disabled and “record of” disability. 23

Conclusion...................................................................................................... 26

Certificate of Compliance

Certificate of Service

TABLE OF AUTHORITIES

CASES Page(s)

Alexiadis v. N.Y. Coll. of Health Professions,

891 F. Supp. 2d 418 (E.D.N.Y. 2012) ................................................ 15

Baptista v. Hartford Bd. of Educ.,

427 F. App’x 39 (2d Cir. 2011) .......................................................... 17

Baptista v. Hartford Bd. of Educ.,

No. 08-1890, 2009 WL 2163133 (D. Conn. July 21, 2009) ................ 17

Blanks v. Southwestern Bell Comm., Inc.,

310 F.3d 398 (5th Cir. 2002) .............................................................. 17

*Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196 (1998) .............. 13, 14, 22

Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc.,

467 U.S. 837, 104 S. Ct. 2778 (1984) ................................................ 18

Cleveland v. Policy Mgmt. Sys. Corp.,

526 U.S. 795, 119 S. Ct. 1597 (1999) ................................................ 19

Dactelides v. Board of School Trustees of South Bend,

562 F. App’x 534 (7th Cir. 2014) ................................................ 15, 17

*Gogos v. AMS Mech. Sys., Inc.,

737 F.3d 1170 (7th Cir. 2013) ................................................ 15, 17, 22

Gonzales v. Garner Food Servs., Inc.,

89 F.3d 1523 (11th Cir. 1996) .............................................................. 6

*Henderson v. Thomas, 913 F. Supp. 2d 1267 (M.D. Ala. 2012) ........... 14, 22

Hoffman v. Carefirst of Fort Wayne, Inc.,

737 F. Supp. 2d 976 (N.D. Ind. 2010) ................................................. 23

Horgan v. Simmons, 704 F. Supp. 2d 814 (N.D. Ill. 2010) ........................... 15

King v. Chester Co. Prison,

No. 10-6952, 2012 WL 831962, (E.D. Pa. March 12, 2012) .............. 15

Kuczynski v. Lyra Mgmt., Inc.,

No. 08-62067, 2010 WL 2509843 (S.D. Fla. June 18, 2010) ............. 17

*Lundy v. Phillips,

No. 13-62, 2014 WL 811544 (D.S.C. March 3, 2014) .................. 14, 20

Lytes v. DC Water & Sewer Auth.,

572 F.3d 936 (D.C. Cir. 2009) ............................................................ 17

*Mazzeo v. Color Resolutions Int’l, LLC,

746 F.3d 1264 (11th Cir. 2014) .................................. 10, 16, 18, 22, 23

Meritor Sav. Bank, FBS v. Vinson,

477 U.S. 57, 106 S. Ct. 2399 (1986) .............................................. 7, 18

Norton v. Assisted Living Concepts, Inc.,

786 F. Supp. 2d 1173 (E.D. Tex. 2011) ............................................. 16

Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161 (1944) ....................... 18

Solorio v. Am. Airlines, Inc.,

No. 00-3780, 2002 WL 485284 (S.D. Fla. Feb. 28, 2002) .................. 17

Sutton v. United Air Lines, Inc.,

527 U.S. 471, 119 S. Ct. 2139 (1999) ................................................ 10

Trawinski v. United Techs., 313 F.3d 1295 (11th Cir. 2002) ......................... 25

Waddell v. Valley Forge Dental Assocs., Inc.,

276 F.3d 1275 (11th Cir. 2001) .......................................................... 17

Zillyette v. Capital One Fin. Corp.,

1 F. Supp. 2d 1435 (M.D. Fla. 1998) ................................................. 17

STATUTES

*Title I of the Americans with Disabilities Act,

as amended, Pub. L. No. 110-325, 122 Stat. 3553 (2008),

codified at 42 U.S.C. § 12101 et seq. ................................................ passim

Pub. L. No. 110-325, Sec. 2(a)(4), 122 Stat. 3553 (2008)......................... 11

Pub. L. No. 110-325, Sec. 2(b)(3), 122 Stat. 3553 (2008)........................ 11

Pub. L. No. 110-325, Sec. 2(b)(4), 122 Stat. 3553 (2008)........................ 11

Pub. L. No. 110-325, Sec. 2(b)(5), 122 Stat. 3553 (2008)........................ 11

42 U.S.C. § 12102(1) ................................................................................ 10

42 U.S.C. § 12102(1)(A) .................................................................... 12, 19

42 U.S.C. § 12102(1)(B) ........................................................................... 25

42 U.S.C. § 12102(1)(C) .......................................................................... 23

42 U.S.C. § 12102(2)(A) .......................................................................... 19

42 U.S.C. § 12102(2)(B) .......................................................... 8, 11, 13, 15

42 U.S.C. § 12102(3)(A) .......................................................................... 23

42 U.S.C. § 12102(4)(A) ............................................................................ 8

42 U.S.C. § 12102(4)(C) ...................................................................... 9, 12

42 U.S.C. § 12102(4)(D) ................................................................ 9, 12, 23

42 U.S.C. § 12102(4)(E)(i)(1) .............................................................. 8, 12

42 U.S.C. § 12112(a) ............................................................................... 10

42 U.S.C. § 12205a............................................................................ 12, 18

42 U.S.C. § 2000e-12(a) ............................................................................... 18

REGULATIONS

29 C.F.R. § 1630.2(g)(2) ................................................................................ 25

29 C.F.R. § 1630.2(g)(3) ................................................................................ 24

29 C.F.R. § 1630.2(i)(1)(ii) ........................................................................... 13

29 C.F.R. § 1630.2(j)..................................................................................... 19

29 C.F.R. § 1630.2(j)(1)(vii) ......................................................................... 23

29 C.F.R. § 1630.2(j)(1)(vi) .......................................................................... 21

29 C.F.R. § 1630.2(j)(3)(ii) ........................................................................... 13

29 C.F.R. § 1630.2(j)(3)(iii) ...................................................................... 6, 13

29 C.F.R. Pt. 1630, App. § 1630.2(k) .......................................................... 25

29 C.F.R. Pt. 1630, App. § 1630.2(l) ........................................................... 24

RULES

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

Fed. R. App. P. 32(a)(5) ............................................................................... 27

Fed. R. App. P. 32(a)(6) ............................................................................... 27

Fed. R. App. P. 32(a)(7)(B) .......................................................................... 27

Fed. R. App. P. 32(a)(7)(B)(iii) ..................................................................... 27

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “the Commission”) is the agency charged by Congress with interpreting, administering, and enforcing the federal prohibitions on employment discrimination, including the Americans with Disabilities Act (“ADA”), as amended, 42 U.S.C. §§ 12101 et seq. At issue in this appeal is whether the plaintiff, who is HIV positive, is disabled under the ADAAA. The district court, relying on six decisions that all predated the 2008 amendments to the ADA, held he was not. The court’s reliance on that outdated case law, and its failure to recognize the important additions made to the statutory definition of “disability” in the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553, led the district court to misinterpret the ADA. The proper interpretation of the amended ADA’s definition of disability is a recurring issue of critical importance to effective enforcement of the statute. Therefore, the Commission respectfully offers its views as amicus curiae. As a federal agency, the Commission is authorized to participate as amicus curiae in the federal courts of appeals. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE[1]

Whether the district court erred in ruling that Jose Rodriguez was not disabled under the ADA, as amended, where the court relied on pre-amendments law and did not take into account additions to the statutory definition of “disability.”

STATEMENT OF THE CASE

Statement of Facts

HSBC hired Jose Rodriguez in September 2004 to work as a Senior Personal Banker at its Miami branch office. R.39-2, Pl. Dep. at 68-69. In May 2007, HSBC promoted Rodriguez to Premier Relationship Manager. Id. at 46, 155; R.39-6, Graisen Dep. at 12. Thereafter, although Rodriguez’s job description remained the same, his title was elevated in 2008 (to Senior Premier Relationship Manager) and in 2009 (to Vice-President – Premier Relationship Manager). R.39-2, Pl. Dep. at 46-47.

Rodriguez reported directly to Argenis Graisen, the Miami Branch Manager. R.39-6, Graisen Dep. at 11. Beginning in 2008, Rodriguez also reported to Eddie Jackson, a regional Senior Premier Relationship Manager. R.39-11, Jackson Dep. at 9, 14. Rodriguez testified that when he was promoted to Premier Relationship Manager, he notified Graisen that he is HIV positive because he was concerned about stress in the new job. R.39-2, Pl. Dep. at 30-31. Jackson indicated that Rodriguez also informed him of his HIV status when he found Rodriguez crying in his office. R.39-2 at 36, 115; R.39-11, Jackson Dep. at 20-21. Rodriguez testified that both managers’ attitudes changed after he informed them of his HIV positive status. R.39-2, Pl. Dep. at 70-71, 92-93, 110, 113-15. According to Rodriguez, the two men began a campaign of retaliation against him, including workplace harassment and disparate treatment. Id. at 108, 155-57. Specifically, Rodriguez testified that Graisen made the job substantially more stressful (id. at 97-99), took commission “points” and accounts away from him (id. at 101-03, 105-06), acted in a physically and verbally threatening manner (id. at 99-100, 108), and told all bank employees that Rodriguez complained about him to HR. Id. at 119, 129-30.

Both Graisen and Jackson had input into annual employee appraisals for Premier Relationship Managers. For 2009, Rodriguez received a “Strong 3” (out of 5) rating, but the rating document notified Rodriguez that he was not meeting some of his employment objectives. R.39-2, Pl. Dep. at 189; R.39-6, Graisen Dep. at 73-76. In January 2010, Graisen and Jackson met with Rodriguez to discuss his 2009 evaluation (R.39-2, Pl. Dep. at 125-26) and the remedial measures he needed to take to improve his performance. Id. at 147-48, 171-73, 176-814, 189; R.39-11, Jackson Dep. at 55-60; R39-6, Graisen Dep. 83-85, 99. On February 2, 2010, Graisen and Jackson issued Rodriguez a formal “Corrective Action Form,” notifying him that he had not reached the improvement benchmarks identified in the January 2010 counseling meeting. R.39-11, Jackson Dep. at 73-74, 78-79; R.36-9, Graisen Dep. at 95, 99-101.

Later in February 2010, Rodriguez sought short-term disability (STD) leave for a painful back and shoulder condition. R.39-2, Pl. Dep. at 69-70, 89-92, 98-99. He testified that he also needed STD because of “the stress that Andy Graisen put [him] through,” the stress of the job, and muscle tension due to stress. Id. His request was approved, and Rodriguez returned from leave on June 7, 2010. R.14-5 at PageID 242-45. Graisen met with him to discuss performance expectations. R.39-2, Pl. Dep. at 203; R.39-6, Graisen Dep., at 128-29. Graisen also informed him that he had a two-week “grace period” (until June 21, 2010) to readjust to the job before his February Corrective Action would be reinstated. R.39-6, Graisen Dep. at 129, 138, 145-46; R.39-9 at PageID 865. Rodriguez’s February Corrective Action expired on July 2, 2010. R.39-9 at PageID 868.

On July 20, Graisen and Jackson concluded Rodriguez had not responded to their February Corrective Action’s concerns so they issued him another Corrective Action, very similar to the first in substance. R.14-8 at PageID 340-42; R.39-2, Pl. Dep. at 146-47, 194-200; R.39-6, Graisen Dep. at 146-52, 194-95. This Corrective Action expired on August 20, 2010. R.39-13, Jackson Dep. at 132-33. HSBC did not issue a third. Rodriguez submitted his letter of resignation on August 26, 2010, because he was afraid that he might lose his licenses as a result of a pending audit. R.14-6 at PageID 334; R.39-2, Pl. Dep. at 51-52, 141-45.

Rodriguez is HIV positive. He testified “with HIV you get a lot of sickness” and he got “pink eye[, which] is very contagious.” Id. at 32. Rodriguez testified that “HIV is known to get [sic] pink eye. You also get mucus in your brain that I had it [sic] before …. There’s a lot of stuff in [sic] HIV that are side effects. … People don’t die from HIV. They die from side effects.” Id. at 216-17. He also testified that HIV affects his ability to have sexual relations with his partner—they do not have sex at all because Rodriguez fears transmitting the disease to his partner. Id. at 45. Rodriguez started taking antiretroviral medications when he was diagnosed in 1998. Id. at 42. He moved to Florida in the early 2000s, and began receiving treatment from an HIV specialist. Id. at 211-12. The record is not entirely clear about his use of medication thereafter. Specifically, it is not clear whether he reduced his medications based on a doctor’s advice, stopped them altogether for the same reason, or stopped them because he “could not afford it.” Id. at 7, 43-44, 212, 221. In any event, he continued to receive follow up care (until he lost his full-time job and health insurance). Id. at 43-45, 219. Without insurance, he cannot afford medications when they are necessary and, he testified, he could die from this virus. Id. at 43.

Rodriguez, acting pro se, sued HSBC asserting that because of his HIV status, he suffered from discriminatory disparate treatment and a hostile work environment at the hands of its managers and, as a result, he was constructively discharged, in violation of the ADA and state law. R.42, Op. at 10 & n.1. He attached his EEOC Intake Questionnaire to his amended complaint; in it, he checked the boxes indicating he was actually disabled and regarded as disabled. R.14-3 at PageID 78. In a motion for summary judgment, HSBC argued that Rodriguez cannot establish he is disabled. R.39 at ¶ 4; id. at 13-16. HSBC stated in its memorandum that it “has analyzed Plaintiff’s claims under the ADAAA,” but HSBC cited to five decisions in support, four of which arose under pre-ADAAA law. Id. at 15-16 & n.12. The fifth was based on Ohio state law, and mentioned neither the ADA nor its amendments. HSBC also argued that the court “is not bound by [the Commission’s ADAAA] regulations.” Id. at 16 (referencing 29 C.F.R. § 1630.2(j)(3)(iii)). In so arguing, HSBC cited to an Eleventh Circuit case stating that it was not bound by “EEOC’s interpretive guidelines.” Id. That case – Gonzales v. Garner Food Servs., Inc., 89 F.3d 1523, 1528 (11th Cir. 1996) – did not discuss EEOC regulations, and HSBC did not highlight the distinction between interpretive guidelines and regulations.

District Court Opinion

The district court granted summary judgment to HSBC on Rodriguez’s ADA claims. On disability, the court referenced EEOC’s ADAAA regulations but, following HSBC’s error, relied on a case addressing EEOC Title VII guidance and held the ADA regulations were “not controlling.” R.42, Op. at 15 (citing Meritor Sav. Bank, FBS v. Vinson, 477 U.S. 57, 65 (1986)). The court stated that it nonetheless found the regulations “persuasive,” but then proceeded to interpret the regulations in light of the approach of six other courts, whose decisions the district court discussed. R.42, Op. at 15-18. The court did not address the fact that all six cases arose under pre-ADAAA law. The court also did not address the fact that the regulations promulgated after the ADAAA were not (and could not have been) cited by the six courts.

The district court held that it would interpret the regulations as creating “a hurdle” (albeit a hurdle that the court stated was a low one) and that “[l]eaping it requires some proof.” Id. at 16. The court held Rodriguez did not provide that proof, and that the evidence “overwhelmingly” showed that Rodriguez’s HIV positive status was not a disability under the amended ADA. Id. In so holding, the court highlighted Rodriguez’s statement that he did not consider himself “disabled,” evidence that Rodriguez was energetic at work, evidence that his HIV was “well controlled” and “well treated,” and the fact that he was not using medication at the time he worked at HSBC. Id. at 16-17. The court did not consider the ADAAA’s addition of the operation of major bodily functions to the definition of major life activities. On these facts, the court concluded that “Rodriguez did not, as a matter of law, have a disability as defined by the ADA while he was employed at HSBC.” Id. at 17.

SUMMARY OF ARGUMENT

Congress amended the ADA in order to ensure that “the definition of disability [would] be construed in favor of broad coverage of individuals….” 42 U.S.C. § 12102(4)(A). To that end, Congress added several provisions clarifying how to analyze whether an impairment substantially limits a major life activity – the first way of establishing a “disability.” It clarified that “a major life activity” now “includes the operation of a major bodily function, including but not limited to, functions of the immune system.” 42 U.S.C. § 12102(2)(B). Congress also clarified that courts should not focus on the impairment as treated: the substantial limitation inquiry must be made “without regard to the ameliorative effects of mitigating measures such as … medication.” 42 U.S.C. § 12102(4)(E)(i)(I). Additionally, individuals with impairments that have inactive phases are not left without coverage under the ADA, for the amended statute now states that an impairment “that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D). Finally, Congress added language emphasizing that an impairment need not have effects on several major life activities, including the major life activity of working; the statute now states that an impairment that substantially limits one major life activity “need not limit other major life activities in order to be considered a disability.” 42 U.S.C. § 12102(4)(C).

The district court considered none of these statutory provisions when it held Rodriguez, who is HIV positive, was not disabled. In particular, the court did not consider how HIV infection substantially limits the major life activity of immune system function. Instead the court looked to six cases that all arose before the ADAAA went into effect. By overlooking the important additions to the statute while relying on outdated case law, the court erred in holding Rodriguez was not disabled.

Congress also added language to the statute clarifying the “regarded as” and “record of” prongs of the disability definition. The district court never considered the disability question under those prongs, however, because it held that Rodriguez had not asserted coverage under them. Given this Court’s standards for reading pro se complaints, Rodriguez’s complaint should have been understood as also asserting that HSBC regarded him as disabled and that he has a “record of” disability.

ARGUMENT

The district court erred by failing to address the statutory additions that Congress made to the ADA and by relying on pre-amendments law to rule that Rodriguez did not have a disability.

The district court improperly analyzed the question of disability by relying on superseded law. When it enacted the ADA Amendments Act (ADAAA) in 2008, Congress intended to make changes that would alter the ADA’s disability analysis in fundamental ways. Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1267 (11th Cir. 2014) (“Congress made significant changes to the ADA by enacting the [ADAAA]”). Both as originally enacted in 1990 and today, the ADA prohibits employers from discriminating against a qualified individual with a “disability,” 42 U.S.C. § 12112(a), and the statute defines the term “disability” to mean: “a physical or mental impairment that substantially limits one or more of the major life activities of such individual,” “a record of such an impairment,” or “being regarded as having such an impairment.” Id. § 12102(1). In the years after the 1990 Act’s enactment, however, courts increasingly came to interpret the ADA’s definition of disability in unduly restrictive ways. As Congress later put it in the 2008 amendments to the ADA, “the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)[,] and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” Pub. L. No. 110-325, Sec. 2(a)(4), 122 Stat. 3553 (2008).

Congress passed the ADAAA in 2008 to reverse that trend. In amending the ADA, Congress stated that the Supreme Court’s interpretation of the terms “major [life activities]” and “substantially limits” had “created an inappropriately high level of limitation necessary to obtain coverage under the ADA,” and it was amending the statute because “the primary object of attention in cases brought under the ADA should be whether entities covered by the ADA have complied with their obligations[.]” Pub. L. No. 110-325, Sec. 2(b)(4) & (b)(5), 122 Stat. 3553 (2008). It stressed that it enacted the ADAAA in part “to reject the Supreme Court’s reasoning in Sutton.” Pub. L. No. 110-325, Sec. 2(b)(3), 122 Stat. 3553 (2008).

The district court acknowledged the ADAAA altered the law on coverage, but it did not evaluate the claims in this case under ADAAA standards. Rather than highlighting Congress’s rejection of the reasoning in Sutton, the court instead invoked Sutton. R.42, Op. at 15. Most critically, the court never mentioned significant changes to the language of the statute that should have guided the court’s analysis – in particular, the new language stating that “a major life activity” now “includes the operation of a major bodily function, including but not limited to, functions of the immune system.” 42 U.S.C. § 12102(2)(B). The court also failed to consider the limitation of Rodriguez’s HIV impairment “without regard to the ameliorative effects of mitigating measures such as … medication.” 42 U.S.C. § 12102(4)(E)(i)(I). It failed to consider that an impairment “that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D). It failed to consider that an impairment that substantially limits one major life activity “need not limit other major life activities in order to be considered a disability.” 42 U.S.C. § 12102(4)(C). The court failed to defer to the Commission’s ADAAA regulations as it must. See 42 U.S.C.

§ 12205a. Finally, the court failed to consider the disability question under the “regarded as” prong, the prong most appropriate to this case, and under the “record of” prong. The court’s ruling, in disregarding the ADAAA and its regulations, perpetuates the same hurdles to coverage the ADAAA was enacted to correct.

I. Rodriguez’s HIV infection substantially limits the functions of his immune system, and so is a disability under the first prong of the disability definition.

The focus of the district court’s ruling was the first “disability” prong – “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(1)(A). The court erred in its assessment under that prong for numerous reasons.

It is undisputed that Rodriguez is HIV positive. HSBC did not dispute that Rodriguez has an impairment, but it argued that that the impairment did not substantially limit a major life activity. R.39 at ¶ 4; R.39 at 13-16. HSBC, and the district court, were incorrect. The ADA now provides that the term “major life activities” includes the operation of major bodily functions, such as “functions of the immune system.” 42 U.S.C. § 12102(2)(B); see also 29 C.F.R.

§ 1630.2(i)(1)(ii) (major life activities include operation of major bodily functions, including function of the immune system). There can be no doubt that HIV infection substantially limits the functioning of the immune system. See 29 C.F.R. § 1630.2(j)(3)(iii) (“it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated: … Human Immunodeficiency Virus (HIV) infection substantially limits immune function”); 29 C.F.R. § 1630.2(j)(3)(ii) (determination of coverage should be made in “virtually all cases”). Because of the effect on Rodriguez’s immune system, the district court should have determined quickly that Rodriguez was “disabled” and then moved to the question of discrimination.

Even before the amendments to the ADA, the Supreme Court noted the effect of HIV infection on the immune system, see Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196 (1998), though “bodily functions” was not a part of the statute at that time and so was not part of the Court’s analysis of major life activities. With the addition of the bodily functions language, the Court’s discussion of the effect takes on particular import. See 524 U.S. at 635-37, 118 S. Ct. at 2204 (at the initial stage of HIV infection, “[t]he assault on the immune system is immediate”); (after initial stage, HIV enters “asymptomatic phase,” when symptoms may not appear but the virus “thrives in the lymph nodes, which, as a vital point of the body’s immune response system, represents an ideal environment for the infection of other CD4+ cells”); (“HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection”).[2]

Now, with the passage of the ADAAA, the courts addressing HIV infection readily have recognized that HIV-positive individuals have a disability. See, e.g., Henderson v. Thomas, 913 F. Supp. 2d 1267, 1287 & n.15 (M.D. Ala. 2012) (noting that ADAAA “clarifies that ‘major life activities’ includes ‘the operation of a major bodily function, including ... functions of the immune system.’ … As HIV critically impacts the immune system, it is within the ambit of the statute.”) (Title II case); Lundy v. Phillips, No. 13-62, 2014 WL 811544, at *3 (D.S.C. March 3, 2014) (relying on language in the ADAAA and the Commission’s regulations, and holding that “Lundy’s asymptomatic HIV meets the ADA’s definition of [actual] disability”); Alexiadis v. N.Y. Coll. of Health Professions, 891 F. Supp. 2d 418, 428 (E.D.N.Y. 2012) (“a rational factfinder could conceivably conclude that plaintiff’s HIV-positive status substantially limits the major life activity of the function of his immune system”); King v. Chester County Prison, No. 10-6952, 2012 WL 831962, at *4 (E.D. Pa. March 12, 2012) (“Under the ADA[AA], HIV is a disability.”) (citations omitted); Horgan v. Simmons, 704 F. Supp. 2d 814, 818-19 (N.D. Ill. 2010) (holding that plaintiff had an actual disability because, under the ADAAA and the Commission’s proposed regulations, his HIV-positive status substantially limits a major life activity: the function of his immune system).

It is not only evidence of HIV infection that has led courts to conclude “easily” that an individual with an impairment that substantially limits “a major bodily function” (42 U.S.C. § 12102(2)(B)) is disabled under the amended ADA. In Gogos v. AMS Mechanical Systems, Inc., 737 F.3d 1170, 1173 (7th Cir. 2013), for example, the Seventh Circuit ruled that the plaintiff’s high blood pressure condition “substantially impaired [the major life activity of] his circulatory function.” Even without the particular manifestations of his condition, the court ruled, he “could qualify as disabled.” Id. In Dactelides v. Board of School Trustees of South Bend, 562 F. App’x 534, 535 n.1 (7th Cir. 2014), the appellate court ruled that the plaintiff’s diagnosis of multiple sclerosis meant she likely was disabled because “‘multiple sclerosis substantially limits neurological function.’” (quoting 29 C.F.R. § 1630.2(j)(3)(iii)). And in Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173, 1185 (E.D. Tex. 2011), the court ruled that the plaintiff’s renal cancer qualifies as a disability even if the only “major life activity” it “substantially limited” was “normal cell growth.” (citing 42 U.S.C. § 12102(4)(C)).

As noted above, the district court’s contrary ruling makes no mention of the “major bodily function” language in the amended statute. The court does cite to the EEOC regulations, but the court placed its own interpretive gloss “[a]s to what exactly they mean.” R.42, Op. at 15. But because the regulations are based in significant part on the ADAAA’s major bodily function language, see, e.g., 29 C.F.R. § 1630.2(i)(1)(ii), interpreting them without reference to the statutory changes makes little sense. The interpretive tool the district court did invoke was the analysis employed by six decisions by various courts. All six decisions arose under pre-ADAAA law, however, and thus did not consider in their disability analysis the major bodily functions language or other statutory changes. For the district court to rely on these decisions was improper. Cf. Mazzeo, 746 F.3d at 1268 (reversing judgment where the district court “cited to a pre-ADAAA Eleventh Circuit opinion for the proposition that there could be ‘no disability’”); see also Dactelides, 562 F. App’x at 535 n.1 (criticizing district court for failing to “discuss the 2008 amendments to the ADA or their implementing regulations”).

Specifically, the district court relied on four decisions issued before the ADAAA went into effect in January 2009: Zillyette v. Capital One Fin. Corp., 1 F. Supp. 2d 1435, 1441 (M.D. Fla. 1998); Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 n.4, 1284 (11th Cir. 2001); Solorio v. Am. Airlines, Inc., No. 00-3780, 2002 WL 485284, at *5 (S.D. Fla. Feb. 28, 2002); and Blanks v. Southwestern Bell Comm., Inc., 310 F.3d 398, 401 (5th Cir. 2002). The district court also relied on two later decisions, but both addressed claims arising before January 2009: Baptista v. Hartford Bd. of Educ., 427 F. App’x 39 (2d Cir. 2011) (challenging December 2006 termination),[3] and Kuczynski v. Lyra Management, Inc., No. 08-62067, 2010 WL 2509843, at *2 (S.D. Fla. June 18, 2010) (alleging 2007 constructive discharge). In sum, all six decisions guiding the district court here were based on outdated law. Cf. Gogos, 737 F.3d at 1172 (noting ADAAA applies to discharge occurring after January 1, 2009) (citing Pub. L. No. 110-325, 122 Stat. 3553); see also Lytes v. DC Water & Sewer Auth., 572 F.3d 936, 941 (D.C. Cir. 2009) (ADAAA has only prospective effect).

The district court was not aided by HSBC, which cited only pre-ADAAA case law in its briefing. R.39 at 15-16. Nor did HSBC point the district court towards the proper deference standard that courts must accord EEOC’s regulations. HSBC cited only to the standard for EEOC interpretive guidelines, not to the standard for regulations authorized by statute, as the regulations at issue here were. Id. at 16. See 42 U.S.C. § 12205a; Mazzeo, 746 F.3d at 1269 (EEOC promulgated ADAAA regulations “pursuant to its statutory authority to issue regulations implementing the definition of ‘disability’ in the ADA”). As such, the district court should not have placed its own interpretive gloss on the regulations, but instead should have accorded them Chevron deference. See Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S. Ct. 2778, 2781-83 (1984) (regulations are given “controlling weight” unless they are “arbitrary, capricious, or manifestly contrary to the statute”).[4]

Taking as its baseline pre-ADAAA law addressing HIV infection, the district court deemed several considerations fatal to Rodriguez’s claim that he was disabled within the meaning of the ADA. The court erred in so ruling.

First, the court attached weight to Rodriguez’s statement that he “‘never considered himself disabled’” and to Rodriguez’s assessment that his HIV did not impact his job performance. R.42, Op. at 5, 16; see also id. at 5 (“the disease had little, if any, impact on his job”). As to the latter concern, whether Rodriguez could perform is job is irrelevant to the disability determination at issue in this case. It is true that an individual may established a disability by showing he or she is substantially limited in the major life activity of working, 42 U.S.C.

§ 12102(2)(A), but such a showing never has been required; an individual need only show a substantial limitation as to one major life activity. See 42 U.S.C.

§ 12102(1)(A) (impairment that “substantially limits one or more major life activities” constitutes a disability) (emphasis added); see also 29 C.F.R. pt. 1630, App. § 1630.2(j) (individuals typically will be able to establish coverage through a substantial limitation of a major life activity other than working; for instance, a police officer who previously alleged his major depression substantially limited him in working would “now be substantially limited in brain function”). In this case, it is sufficient that Rodriguez’s HIV infection substantially limits his immune system functioning.[5]

Placing weight on Rodriguez’s statement that he does not consider himself disabled was incorrect for several reasons. Initially, as a legal matter, the word “disability” may have different meanings. See generally Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 801-03, 119 S. Ct. 1597, 1601-02 (1999) (comparing and contrasting definition of disability in the Social Security Act and the ADA and ruling no “inherent[] conflict” “despite the appearance of conflict”). At no time during his deposition was Rodriguez asked whether he considers himself disabled under the definition of that term in the amended ADA.[6] Moreover, as a factual matter, the context of Rodriguez’s questioning points to something very different than the ADA definition. Throughout his deposition, Rodriguez referenced being out “on disability” – the short-term disability leave that he took for his back and shoulder condition. R.39-2 at 107, 109, 115, 176-77, 192, 222, 225. HSBC’s questions had a similar focus (“Why did you go out on disability leave?”). Id. Therefore, when Rodriguez stated, “I’m not claiming a disability. I’m claiming that there was discrimination against my HIV” (id. at 68), the context suggests Rodriguez likely was correlating “disability” with the need to take leave. Cf. Lundy, 2014 WL 811544, at *1 (interpreting plaintiff’s answers to disability-related question; stating that he “understood[] the question to refer to conditions that would impact his work”).[7]

The second consideration to which the district court attached weight was indicia that Rodriguez’s HIV infection now, some years after his initial diagnosis, is “‘well controlled’” and “‘well treated,’” and that he was not using any medication to treat his HIV while employed at HSBC. It is undisputed that Rodriguez was on a course of antiretroviral medication for several years. It is not entirely clear whether he reduced his medications based on a doctor’s advice, stopped them altogether for the same reason, or stopped them because he “could not afford it.” Regardless, the district court viewed the beneficial aspects of the medicine as undercutting a finding that Rodriguez has a disability. That view, however, is at odds with the plain language of the statute as amended. The ADA now states that the determination of whether an impairment substantially limits a major life activity “shall be made without regard to the ameliorative effects of mitigating measures such as … medication.” 42 U.S.C. § 12102(4)(E)(i)(I). The regulations reiterate that point, see 29 C.F.R. § 1630.2(j)(1)(vi) (“[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures”), and this Court has so held. See Mazzeo, 746 F.3d at 1269 (citing EEOC regulation); see also Gogos, 737 F.3d at 1173 (ameliorative effects of eight-year course of medication for high blood pressure “are not relevant” to disability determination). Thus, even if the course of antiretroviral medication has helped Rodriguez, the district court erred in relying on Rodriguez’s treatment to rule he was not disabled. Cf. Henderson, 913 F. Supp. 2d at 1276 (“The human immunodeficiency virus, or HIV, is a chronic disease. If left untreated, it weakens the immune system and eventually leads to death.”).

The district court stressed that Rodriguez had “‘no viral load’” while at HSBC. R.42, Op. at 6. As a factual matter, the court’s statement is suspect: the district court cited only to a general history contained within a March 2010 report by a neurologist treating Rodriguez for his neck pain and shoulder numbness, not his HIV. The history did not include lab reports. The district court did not cite to other material that was in the record, including summaries of February and March 2010 lab reports indicating a “VL” of 2,036. R.39-5 at PageID 704-08. Regardless, a lower viral load does not mean HIV has disappeared, but is instead part of the course of the infection. See Henderson, 913 F. Supp. 2d at 1276 (“Acute HIV gives way to chronic-HIV infection. During this stage, the viral load lowers.”); cf. Bragdon, 524 U.S. at 636, 118 S. Ct. at 2204 (after initial stage, HIV enters “asymptomatic phase”). And even if HIV could be considered to be in a kind of inactive phase during this phase of lowered viral load, again the plain language of the amended ADA indicates the district court was incorrect to use this phase as a basis for ruling Rodriguez not disabled. 42 U.S.C. § 12102(4)(D) (“an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active”); see also 29 C.F.R. § 1630.2(j)(1)(vii) (same); Mazzeo, 746 F.3d at 1269 (same); cf. Hoffman v. Carefirst of Fort Wayne, Inc., 737 F. Supp. 2d 976, 984-86 (N.D. Ind. 2010) (holding that cancer in remission constitutes disability based upon the “clear language” of statute).

The district court therefore erred when it ruled that Rodriguez was not an individual with an impairment that substantially limits a major life activity.

II. Rodriguez could establish he was disabled under the other prongs of the disability definition -- “regarded as” disabled and “record of” disability.

The district court also erred by declining to address whether Rodriguez was disabled under the “regarded as” prong of the ADA’s disability definition. See 42 U.S.C. § 12102(1)(C). Under the amended ADA, an individual may show a disability under that prong by establishing that “he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). By clarifying that an individual need not show the employer perceived the impairment as substantially limiting, the ADAAA broadened the application of the “regarded as” prong of the definition of disability. See Pub. L. No. 110-325, Sec. 2(b)(3), 122 Stat. 3553 (2008); 29 C.F.R. Pt. 1630, App. § 1630.2(l) (“This provision is designed to restore Congress’s intent to allow individuals to establish coverage under the ‘regarded as’ prong by showing that they were treated adversely because of an impairment, without having to establish the covered entity’s beliefs concerning the severity of the impairment.”). Thus the statute as amended takes the emphasis in the regarded-as analysis away from the level of impairment that the individual experiences or is perceived to experience, and instead focuses on whether or not the employer took action against the individual because of an actual or perceived impairment.

Where, as here, a plaintiff is alleging disability-based adverse treatment (and not a failure to accommodate), a plaintiff generally will need only rely on the “regarded as” prong to establish coverage under the ADA because the merits of the discrimination claim are so closely intertwined with coverage. See 29 C.F.R.

§ 1630.2(g)(3). Here, the district court concluded that Rodriguez did not allege this theory of coverage. R.42, Op. at 17 n.2. However, while the complaint itself did not clearly set out the “regarded as” theory of coverage, Rodriguez attached to his amended complaint his EEOC Intake Questionnaire in which he checked the box stating that “the organization treats me as if I am disabled.” R.14-3 at PageID 78. Because Rodriguez was proceeding pro se, this Court should address the issue. See Trawinski v. United Techs., 313 F.3d 1295, 1297 (11th Cir. 2002) (“Pro se pleadings are held to a less strict standard than pleadings filed by lawyers, and are construed liberally as a result.”).

Rodriguez argues that after his managers learned of his HIV status, their attitudes towards him changed, his favorable performance review became unfavorable, and his book of business was split between himself and a new peer. R.39-2, Pl. Dep. at 30-31, 35-36, 63, 67, 70-71, 80-81, 88-89, 92-93, 110-14, 171-73, 187-89. If Rodriguez can prove this critical part of his claim, he necessarily will have established he is disabled under the “regarded as” prong.

Rodriguez also could have established he has a “record of” disability in light of medical records demonstrating that he has been HIV positive for years. See 42 U.S.C. § 12102(1)(B). The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability. See 29 C.F.R. Pt. 1630, App. § 1630.2(k). For example, the “record of” provision would protect an individual “who was treated for cancer ten years ago, but who is now deemed by a doctor to be free of cancer,” from discrimination based on that prior medical history. Id. Moreover, individuals who are covered under the “record of” prong often will be covered under the first prong of the definition of disability as well. Cf. 29 C.F.R. § 1630.2(g)(2) (an individual “may establish coverage under any one or more of the[] three prongs of the definition of disability”). Rodriguez therefore also could establish a disability under this prong of the definition.

CONCLUSION

For the foregoing reasons, the Commission urges this Court to reverse the judgment of the district court and remand this case for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/ Donna J. Brusoski____________

Donna J. Brusoski

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

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

Washington, DC 20507

(202) 663-7049

fax: (202) 663-7090

donna.brusoski@eeoc.gov

[1] The Commission takes no position on any other issue in this appeal.

[2] Because Bragdon arose prior to the ADAAA, the Court had to consider whether the plaintiff’s HIV infection substantially limited a major life activity other than immune system functioning. The Court held that even during the asymptomatic phase of HIV infection, it substantially limited the major life activity of reproduction. 524 U.S. at 637-48, 118 S. Ct. at 2204-10. With the ADAAA, that additional step no longer is necessary. Similarly, consideration of the impact of Rodriguez’s HIV infection on other aspects of his life such as engaging in sexual activity no longer is necessary. Cf. Bragdon, 524 U.S. at 643, 118 S. Ct. at 2207-08 (discussing uniform agency interpretation that HIV infection is a disability because of its impact on engaging in sexual relations).

[3] The facts of Baptista are discussed in the district court decision. See Baptista v. Hartford Bd. of Educ., No. 08-1890, 2009 WL 2163133, at *2 (D. Conn. July 21, 2009).

[4] The district court cited Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2404 (1986), which in turn cited to Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 164 (1944). Skidmore deference was appropriate in Meritor Savings because the case involved guidelines issued under Title VII, which does not confer on the Commission the authority to issue substantive regulations. See 42 U.S.C. § 2000e-12(a). Skidmore deference was not appropriate here.

[5] Factually, the district court was not correct. Rodriguez testified that his HIV status “[s]ometimes” prevented him from performing his job functions because his “low stamina” made him prone to “[s]ome side effects,” like pink eye infection. R.39-2 at 215-16.

[6] HSBC asked Rodriguez during his deposition whether he was “able to eat, sleep, walk, stand, lift, take care of yourself, all those things? … Was there any major life activity that you think your HIV status substantially limited?” R.39-2 at 217. Rodriguez responded he could do the tasks but he got “more tired.” Id. HSBC never asked Rodriguez about major bodily functions such as his immune system, for example, or how limited he would be had he not taken the mitigating measure of antiretroviral medication.

[7] Even if Rodriguez were not actually disabled, he would be covered under the “regarded as” prong if HSBC discriminated against him because of his HIV. See infra at 22.