MEMORANDUM

TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................................................iii

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

STATEMENT OF THE ISSUE..................................................................1

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

I. Statement of the Facts.......................................................................2

II. District Court Decision......................................................................4

ARGUMENT................................................................................................9

I. Standard of Review............................................................................9

II. The district court erred in dismissing Ruggiero’s

failure-to-accommodate claim.........................................................10

A. The district court correctly determined that Ruggiero

pled sufficient facts to permit a reasonable inference

that she is a qualified person with a disability..........................10

B. The district court erred in determining that Ruggiero

failed to allege facts supporting a reasonable inference

of employer notice........................................................................13

1. Ruggiero pled facts regarding Mount Nittany’s notice that she might have a disability....................................................14

2. Ruggiero pled facts regarding Mount Nittany’s notice of her desire for an accommodation..................................................20

C. The district court erred in holding, as a matter of law,

that Mount Nittany satisfied its obligations under the interactive process.......................................................................22

III. The district court erred in dismissing Ruggiero’s discriminatory termination claim.............................................................................28

IV. The district court erred in dismissing Ruggiero’s retaliation

claim.................................................................................................30

CONCLUSION..........................................................................................33

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

CERTIFICATE OF SERVICE......................................................................

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal,

556 U.S. 662 (2009)......................................................................9, 11

Carter v. Pathfinder Energy Servs., Inc.,

662 F.3d 1134 (10th Cir. 2011)....................................................5, 11

Connelly v. Lane Constr.,

809 F.3d 780 (3d Cir. 2016).................................9, 10, 11, 27, 31, 32

EEOC v. Chevron Phillips Chem. Co.,

570 F.3d 606 (5th Cir. 2009)............................................................20

EEOC v. Sears, Roebuck & Co.,

417 F.3d 789 (7th Cir. 2005)......................................................20, 26

Fowler v. UPMC Shadyside,

578 F.3d 203 (3d Cir. 2009)...........................................14, 15, 16, 29

Gagliardo v. Connaught Labs., Inc.,

311 F.3d 565 (3d Cir. 2002).............................................................17

Krouse v. Am. Sterilizer Co.,

126 F.3d 494 (3d Cir. 1997)........................................................31-32

Mengine v. Runyon,

114 F.3d 415 (3d Cir. 1997)...............................................................7

Moody v. Atl. City Bd. of Educ.,

__ F.3d __, No. 16-4373, 2017 WL 3881957

(3d Cir. Sept. 6, 2017)......................................................................33

Sever v. Henderson,

220 F. App’x 159 (3d Cir. 2007).......................................................16

Sever v. Henderson,

381 F. Supp. 2d 405 (M.D. Pa. 2005)....................................6, 15, 16

Shellenberger v. Summit Bancorp, Inc.,

318 F.3d 183 (3d Cir. 2003).......................................................30, 31

Soileau v. Guilford of Me., Inc.,

105 F.3d 12 (1st Cir. 1997)..............................................................31

Solomon v. Vilsack,

763 F.3d 1 (D.C. Cir. 2014)..............................................................30

Taylor v. Phoenixville Sch. Dist.,

184 F.3d 296 (3d Cir. 1999)......................................................passim

Thomas v. Indep. Twp.,

463 F.3d 285 (3d Cir. 2006).............................................................26

Turner v. Hershey Chocolate U.S.,

440 F.3d 604 (3d Cir. 2006).............................................................26

Statutes

Americans With Disabilities Act

ADA Amendments Act of 2008, Pub. L. No. 110-325

§ 2 (codified as 42 U.S.C. § 12101 note).................................11

§ 2(a)(4) (codified as 42 U.S.C. § 12101(a)(4) note)...............23

§ 2(b)(5) (codified as 42 U.S.C. § 12101(b)(5) note)...............12

§ 2(b)(6) (codified as 42 U.S.C. § 12101(b)(6) note)...............12

§ 4(a) (codified as 42 U.S.C. § 12102(2)(B))...........................11

42 U.S.C. § 12112(b)(5)(A)...................................................10, 14, 26

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

42 U.S.C. § 12206...............................................................................1

Other Statutes

Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.........................14

42 U.S.C. § 1981a(a)(3)....................................................................26

Administrative Materials

ADA Regulations

29 C.F.R. § 1630.2(i)(1)(i).................................................................17

29 C.F.R. § 1630.2(i)(1)(ii)................................................................17

29 C.F.R. § 1630.2(j)(1)(i).................................................................12

29 C.F.R. § 1630.2(j)(1)(iii)..........................................................5, 12

29 C.F.R. § 1630.2(j)(3)(iii)..............................................................18

29 C.F.R. § 1630.2(o)(3)............................................................passim

29 C.F.R. § 1630.2(o)(4)....................................................................23

EEOC Interpretive Guidance

29 C.F.R. pt. 1630, app. § 1630.9...................................24, 25, 27, 28

EEOC Enforcement Guidance

EEOC Enforcement Guidance on the Americans

with Disabilities Act and Psychiatric Disabilities,

Notice No. 915.002 (March 25, 1997), https://www.eeoc.gov/policy/docs/psych.html..................................20

EEOC Enforcement Guidance on Retaliation

and Related Issues, Notice No. 915.004,

2016 WL 4688886 (Aug. 25, 2016)............................................30, 31

Rules

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

Fed. R. Civ. P. 12(b)(6)............................................................1, 4, 9, 10, 33

Fed. R. Civ. P. 56.........................................................................................4

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with interpreting, administering, and enforcing various federal laws prohibiting employment discrimination, including Title I of the Americans with Disabilities Act of 1990, as amended (“ADA”), which prohibits employment discrimination based on disability. See 42 U.S.C. §§ 12117, 12206. This appeal raises the question of what is required, at the pleading stage, to allege failure-to-accommodate, discriminatory termination, and retaliation claims under the ADA. Because resolution of this question will affect the EEOC’s enforcement of the ADA, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE

Whether the district court erred in dismissing Plaintiff-Appellant Aleka Ruggiero’s ADA claims under Rule 12(b)(6).[1]

STATEMENT OF THE CASE

I. Statement of the Facts

Aleka Ruggiero (“Ruggiero”) began working as a registered nurse at Mount Nittany Medical Center (“Mount Nittany”) in 2008. JA.39 (Compl. ¶ 13). Ruggiero has impairments including severe anxiety and eosinophilic esophagitis, a chronic immune system disease. JA.40 (Compl. ¶ 14). Ruggerio’s severe anxiety and eosinophilic esophagitis limit her ability to perform certain life activities, including eating, sleeping, and engaging in social interactions. JA.40 (Compl. ¶ 15). However, despite Ruggiero’s impairments, she could perform the duties of her position at Mount Nittany. JA.39-40 (Compl. ¶¶ 13, 16).

In April 2015, Ruggiero received a memorandum from Mount Nittany instituting a new requirement that all clinical employees, including Ruggiero, must receive a Tdap (tetanus, diphtheria, and pertussis) vaccine. JA.40 (Compl. ¶ 17). On June 2, 2015, Ruggiero’s physician, Dr. Suzanne Dib, provided a note stating that Ruggiero “is medically exempt from receiving tdap immunization for medical concerns.” JA.40 (Compl. ¶ 20).

On June 10, Emma Smith, Mount Nittany’s Employee Health Coordinator, issued a letter acknowledging receipt of Dr. Dib’s June 2 note. JA.40-41 (Compl. ¶ 21). Smith’s letter listed two contraindications identified by the Tdap vaccine manufacturer (hypersensitivity (anaphylaxis) and encephalopathy) and six vaccine warnings/precautions (latex sensitivity, Guillain-Barré syndrome and brachial neuritis, syncope, progressive or unstable neurologic disorders, arthus-type hypersensitivity, and altered immunocompetence). JA.20, JA.40-41 (Op. 17; Compl. ¶ 21). Smith’s letter asked Dr. Dib to identify “the medical contraindication which prohibits Ms. Ruggiero from receiving this mandatory vaccination.” JA.21, JA.40-41 (Op. 18; Compl. ¶ 21).

On July 10, Dr. Dib provided a letter stating: “Aleka Ruggiero is medically exempt from receiving the Tdap immunization due to severe anxiety with some side effects she read with this injection, especially with her history of having many food allergies, environmental allergy and eosinophilic esophagitis.” JA.41 (Compl. ¶ 23). At some point, Ruggiero suggested that she wear a mask as an alternative to receiving the Tdap vaccine, as Mount Nittany permitted nurses who declined an influenza vaccine to wear masks. JA.42 (Compl. ¶ 26(b)). However, on July 15, Smith issued a letter stating that “the documentation provided by Dr. Dib does not meet the definition of medical contraindication as detailed in the manufacturer’s vaccine literature and thus Tdap immunization is required.” JA.41 (Compl. ¶ 24).

On July 22, Mount Nittany removed Ruggiero from work because she had not received the Tdap vaccine. JA.42 (Compl. ¶ 25). On July 31, Mount Nittany formally terminated Ruggiero. JA.42 (Compl. ¶ 26).

II. District Court Decision

Mount Nittany filed a Rule 12(b)(6) motion to dismiss Ruggiero’s complaint, which alleged failure-to-accommodate, discriminatory termination, and retaliation claims under the ADA. The district court granted Mount Nittany’s motion, relying in part on exhibits Mount Nittany attached to its motion. However, the court stated that it was applying the motion-to-dismiss standard under Rule 12(b)(6), not the summary-judgment standard under Rule 56. JA.13 (Op. 10).

First, the district court dismissed Ruggiero’s failure-to-accommodate claim. The district court began by concluding that Ruggiero adequately alleged that she is a “qualified person with a disability.” JA.15 (Op. 12). Although Mount Nittany argued that Ruggiero “did not allege how her conditions ‘substantially limit’ any major life activity,” the district court underscored that “whether the impairment substantially limits a major life activity is ordinarily a question of fact for the jury.” JA.13, JA.15 (Op. 10, 12) (quoting Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011)). In reaching this conclusion, the district court relied on ADA regulations providing, among other things, that “whether an individual’s impairment substantially limits a major life activity” is not the “primary” focus in suits arising under the amended ADA. JA.14 (Op. 11) (citing 29 C.F.R. § 1630.2(j)(1)(iii)). The district court further noted that Mount Nittany did not dispute that Ruggiero adequately alleged that she “could perform the essential functions of her position as a nurse.” JA.16 (Op. 13).

However, the district court went on to conclude that Ruggiero failed to plead that Mount Nittany was aware of her disability. The district court acknowledged that Ruggiero alleged that Mount Nittany knew of Ruggiero’s impairments—severe anxiety and eosinophilic esophagitis—after receiving Dr. Dib’s July 10 letter. JA.22-23 (Op. 19-20). However, the district court opined, “[i]t is not clear when, or if, [Mount Nittany] was aware that [Ruggiero] had limitations based on these alleged disabilities.” JA.23 (Op. 20).

In reaching this conclusion, the district court asserted that an employee must “‘show that the employer knew of [the] employee’s substantial physical or mental limitation,’ resulting from the diagnosed impairment” and that “[s]imply informing an employer of a particular condition is not tantamount to providing the employer with knowledge that the employee is substantially limited in some major life activity.” JA.16-17, JA.22 (Op. 13-14, 19) (quoting Sever v. Henderson, 381 F. Supp. 2d 405, 418-19 (M.D. Pa. 2005)). The district court further suggested that Ruggiero failed to allege that she requested an accommodation, stating that “Ruggiero could amend her complaint to allege that there is more evidence that [Mount Nittany] was aware of both her disabilities and a need to accommodate them.” JA.23 (Op. 20) (emphasis added).

Next, the district court determined that Mount Nittany made a good faith effort to engage in an interactive process with Ruggiero, deeming this issue dispositive of Ruggiero’s failure-to-accommodate claim. JA.23 (Op. 20). As the district court acknowledged, “it may be necessary for the [employer] to initiate an informal, interactive process with the [employee]” “[t]o determine the appropriate reasonable accommodation.” JA.24 (Op. 21) (quoting Mengine v. Runyon, 114 F.3d 415, 419 (3d Cir. 1997) (quoting 29 C.F.R. § 1630.2(o)(3))).

In the district court’s view, Mount Nittany “engaged in a good faith effort to seek accommodation” because it “was willing to exempt Ruggiero from the vaccination requirement” if she “suffered from either of the two contraindicated limitations … or any of the six warnings” listed in Smith’s June 2 letter to Dr. Dib. JA.25-26 (Op. 22-23). The district court found Mount Nittany’s efforts sufficient because “[t]hose eight limitations appear to be the reasonable accommodations that [Mount Nittany] was willing to provide.” JA.26 (Op. 23).

The district court made a few additional points in support of its conclusion that Mount Nittany satisfied its obligations under the ADA. First, the district court suggested that Ruggiero sought accommodation for a “purely personal preference,” which the ADA does not accommodate. JA.26 (Op. 23). Second, the district court dismissed Ruggiero’s allegation that she suggested wearing a protective mask as an alternative accommodation, emphasizing that “by requiring the employer to engage in an interactive process, [courts] do not hold that any particular accommodation must be made by the employer.” JA.26 (Op. 23). Third, the district court characterized Ruggerio’s suit as “essentially asking this court to establish the conditions of [her] employment,” noting that there is no ADA violation where “there is no job which the worker (with or without accommodation) is capable of performing.” JA.26-27 (Op. 23-24).

After addressing Ruggiero’s failure-to-accommodate claim, the district court dismissed her discriminatory termination claim, stating that she provided only “conclusory” allegations. JA.28 (Op. 25). The district court asserted that Ruggiero “has not alleged that she was terminated because of her disability, she has merely alleged that she was terminated for her failure to comply with an employment requirement.” JA.28 (Op. 25). Finally, the district court dismissed Ruggiero’s ADA retaliation claim. JA.28-29 (Op. 25-26). The district court stated that “Ruggiero has set forth nothing more than conclusory allegations to state a claim; she has not shown that she ‘participated in’ or ‘opposed’ any activities protected by the ADA.” JA.28 (Op. 25).

The district court granted Ruggiero leave to amend her complaint, but emphasized that amending the failure-to-accommodate claim would likely be futile. JA.23, 27-29 (Op. 20, 24-26). Ruggiero did not amend her complaint by the district court’s deadline, and the court summarily dismissed her suit. JA.36 (Docket Nos. 28 & 29).

ARGUMENT

I. Standard of Review

This Court reviews an order granting dismissal pursuant to Rule 12(b)(6) under a plenary standard. Connelly v. Lane Constr., 809 F.3d 780, 786 n.2 (3d Cir. 2016). A complaint satisfies Rule 12(b)(6) if it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 786 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This Court is “required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant.” Id. at 786 n.2 (citation omitted). “[F]or purposes of pleading sufficiency, a complaint need not establish a prima facie case in order to survive a motion to dismiss.” Id. at 788.

II. The district court erred in dismissing Ruggiero’s failure-to-accommodate claim.

In dismissing Ruggiero’s failure-to-accommodate claim under Rule 12(b)(6), the district court misapplied the standard for pleading such claims and misunderstood the nature of the ADA’s interactive process. The district court correctly concluded that Ruggiero’s complaint adequately alleged that she is a qualified person with a disability. But the district court erred in dismissing Ruggiero’s complaint on the rationale that she failed to plead employer notice, and because the court concluded, as a matter of law, that Mount Nittany satisfied its obligations under the ADA’s interactive process.

A. The district court correctly determined that Ruggiero pled sufficient facts to permit a reasonable inference that she is a qualified person with a disability.

Although Ruggiero was not required to establish the elements of a prima facie case to allege failure to accommodate, Connelly, 809 F.3d at 788, the district court correctly held that Ruggiero’s complaint offered sufficient facts to permit a reasonable inference that she is a qualified person with a disability. 42 U.S.C. §12112(b)(5)(A) (defining failure to accommodate as “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability”). Ruggiero alleged facts that may “plausibly give rise to an entitlement to relief,” Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 679), by identifying her impairments (severe anxiety and eosinophilic esophagitis), stating that those impairments limit certain life activities, and asserting that she is qualified to perform the duties of her position.

The threshold for establishing a substantial limitation is not demanding, even after the pleading stage. As the district court correctly observed, “whether [an] impairment substantially limits a major life activity is ordinarily a question of fact for the jury.” JA.13, JA.15 (Op. 10, 12) (quoting Carter, 662 F.3d at 1142). The same principle applies to the question of whether an impairment substantially limits a major bodily function, given that Congress’s 2008 amendments to the ADA redefined “major life activity” to “include[e] the operation of a major bodily function.” ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a) (codified as 42 U.S.C. § 12102(2)(B)).

Also, the amended ADA focused on “reinstating a broad scope of protection” under the ADA, with an emphasis on relaxing the standard for establishing substantial limitations. Pub. L. No. 110-325, § 2 (codified as 42 U.S.C. § 12101 note). Under the amended ADA, “‘[s]ubstantially limits’ is not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i); see also Pub. L. No. 110-325, § 2(b)(6) (codified as 42 U.S.C. § 12101(b)(6) note). That is, courts must “broadly” construe “the term ‘substantially limits’ … to the maximum extent permitted by the terms of the ADA.” 29 C.F.R. § 1630.2(j)(1)(i); see also Pub. L. No. 110-325, § 2(b)(6) (codified as 42 U.S.C. § 12101(b)(6) note).

As the district court acknowledged, “[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.” JA.14 (Op. 11) (quoting 29 C.F.R. § 1630.2(j)(1)(iii)); see also Pub. L. No. 110-325, § 2(b)(5) (codified as 42 U.S.C. § 12101(b)(5) note). Therefore, “the threshold issue of whether an impairment ‘substantially limits’ a major life activity should not demand extensive analysis.” 29 C.F.R. § 1630.2(j)(1)(iii); see also Pub. L. No. 110-325, § 2(b)(5) (codified as 42 U.S.C. § 12101(b)(5) note). Because “substantial limitation” warrants an expansive interpretation, and because it is ultimately a fact question, Ruggiero’s allegations were sufficient.

B. The district court erred in determining that Ruggiero failed to allege facts supporting a reasonable inference of employer notice.

Again, although Ruggiero was not required to establish a prima facie case in her complaint, she pled sufficient facts to permit an inference that Mount Nittany had notice of her need for an accommodation. As this Court discussed in Taylor v. Phoenixville School District, 184 F.3d 296, 314 (3d Cir. 1999), at summary judgment the question of employer notice for an ADA failure-to-accommodate claim ultimately boils down to whether the employer had sufficient information “to trigger [its] obligations under the interactive process.” This Court has recognized, and the district court acknowledged, JA.24 (Op. 21), that ADA regulations provide that “it may be necessary for the [employer] to initiate an informal, interactive process with the [employee]” to determine an appropriate accommodation. Taylor, 184 F.3d at 312 (quoting 29 C.F.R. § 1630.2(o)(3)). Taylor explained that the interactive process is “trigger[ed]” where the employer has “enough information to put it on notice that [the employee] might have a disability”; that is, where “under the circumstances, the employer can fairly be said to know of both the disability and desire for an accommodation.” 184 F.3d at 312-14.

Here, the district court concluded that Ruggiero did not adequately allege that Mount Nittany “was aware of both her disabilities and a need to accommodate them.” JA.23 (Op. 20). However, Ruggiero’s complaint pled sufficient facts to support a reasonable inference that Mount Nittany was on notice that Ruggiero “might have a disability” and that she “desire[d] … an accommodation.” Taylor, 184 F.3d at 313, 314.

1. Ruggiero pled facts regarding Mount Nittany’s notice that she might have a disability.

Although not required to establish a prima facie case, Ruggiero pled facts supporting an inference that Mount Nittany knew that she “might have a disability” by meeting the standard articulated in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), a decision under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Fowler explained that, “even after Twombly and Iqbal,” a disability discrimination complaint is sufficient if it “identifies an impairment, of which [the employer] allegedly was aware and alleges that such impairment constitutes a disability.” 578 F.3d at 213-14; see also 42 U.S.C. § 12112(b)(5)(A) (failure to accommodate constitutes discrimination under the ADA). Ruggiero’s complaint met this standard by alleging (1) that Dr. Dib’s July 10 note informed Mount Nittany of her impairments, severe anxiety and eosinophilic esophagitis, and (2) that her impairments amounted to a disability.

Fowler makes clear that the district court erred by requiring Ruggiero “‘to show that [Mount Nittany] knew of [her] substantial physical or mental limitation’ resulting from the diagnosed impairment.” JA.22 (Op. 19) (quoting Sever, 381 F. Supp. 2d at 419). For this proposition, the district court relied on Sever, a summary-judgment-stage district court decision decided before Fowler and before Congress amended the ADA. Sever, 381 F. Supp. 2d at 408. But requiring a disability discrimination plaintiff to “show,” at the pleading stage, that her employer knew of her substantial limitation grafts an additional requirement to the Fowler standard. Moreover, Fowler specified that a disability discrimination complaint is not required, “at th[e] early pleading stage, to go into particulars about the life activity affected by [the employee’s] alleged disability or detail the nature of her substantial limitations.” 578 F.3d at 213. Also, although it is true, as the district court noted, JA.16 (Op. 13 n.49), that this Court affirmed the district court’s decision in Sever, the panel explicitly declined to address the issue of employer notice and affirmed the grant of summary judgment on other grounds. Sever v. Henderson, 220 F. App’x 159, 161 (3d Cir. 2007) (holding that the employee could not establish that proffered reasons for termination were pretextual).

Along similar lines, the district court relied on Sever for the proposition that “[s]imply informing an employer of a particular condition is not tantamount to providing the employer with knowledge that the employee is substantially limited in some major life activity.” JA.16-17 (Op. 13-14) (quoting Sever, 381 F. Supp. 2d at 418-19). Again, at the pleading stage, Fowler does not require allegations that the employer had knowledge of the employee’s substantial limitation. 578 F.3d at 213-14. Nevertheless, the facts Ruggiero alleged “plausibly suggest[ ]” that Mount Nittany was on notice that Ruggiero’s impairments may cause substantial limitations. See id. at 213 (explaining that, although an employee’s complaint did not explicitly identify a substantial limitation, her request for sedentary work “plausibly suggest[ed] that she might be substantially limited in the major life activity of working”).

For example, although Dr. Dib’s July 10 note identified impairments rather than substantial limitations, Ruggerio’s asserted impairments suggest several possible substantial limitations. Severe anxiety could substantially limit major life activities such as concentrating, sleeping, or thinking, or the operation of brain function,[2] while eosinophilic esophagitis could substantially limit major life activities such as eating, or the operation of the immune and digestive systems.[3] See 29 C.F.R. § 1630.2(i)(1)(i), (ii) (providing non-exhaustive lists of major life activities and major bodily functions); Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 569 (3d Cir. 2002) (recognizing that concentrating is a major life activity); Taylor, 184 F.3d at 307 (recognizing that thinking is a major life activity); cf. 29 C.F.R. § 1630.2(j)(3)(iii) (providing non-exhaustive list of impairments that substantially limit a major life activity or major bodily function in virtually all cases). A doctor’s note identifying those impairments could have put Mount Nittany, a medical facility staffed by medical professionals, on notice that Ruggiero’s impairments may substantially limit major life activities.

Also, as explained infra at 20-22, Ruggiero informed Mount Nittany of her impairments in the course of requesting an accommodation, an act that triggers the interactive process. Because Ruggiero requested an accommodation, Mount Nittany could have inferred, at a minimum, that Ruggiero believed that her impairments caused a substantial limitation. And Mount Nittany’s demand that Ruggiero provide medical documentation to support her accommodation request may “demonstrat[e] that [Mount Nittany] knew how to get information from [Ruggiero] [about her limitations] when it deemed it necessary.” Taylor, 184 F.3d at 314 (fact that employer requested medical documentation was evidence that employer had sufficient “information to put it on notice that [the employee] might have a disability”). In summary, Ruggiero’s complaint satisfies Fowler and also includes additional facts “plausibly suggest[ing]” that Mount Nittany had notice that Ruggiero might have a disability.

Finally, this Court has recognized that the purpose of the interactive process is to “identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” Taylor, 185 F.3d at 316 (quoting 29 C.F.R. § 1630.2(o)(3)). Again, the interactive process is triggered once the employer is on notice that the employee “might have a disability.” Id. at 314. As Taylor explains, “[i]f there [is] any further information that the [employer] … need[s] to justify an accommodation, it [is] incumbent on the [employer] to ask for it.” Id. Requiring that an employee plead her employer’s knowledge of her substantial limitations conflicts with Taylor’s, and the EEOC’s, understanding of the interactive process. Taylor makes clear that the employee and employer may use the interactive process to pinpoint the employee’s limitations, and that an employer must request more information if needed to determine the employee’s limitations.

2. Ruggiero pled facts regarding Mount Nittany’s notice of her desire for an accommodation.

Ruggiero’s complaint also alleges facts supporting an inference that she communicated a “desire for an accommodation” to Mount Nittany. Id. at 313. A request for an accommodation does not need to use the term “reasonable accommodation,” and may come from a third party. Id. (citing EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, Notice No. 915.002 (March 25, 1997), https://www.eeoc.gov/policy/docs/psych.html). Accordingly, courts have recognized that a doctor’s note requesting an exception or adjustment to an employer’s practices may serve as a request for an accommodation. See, e.g., EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621-22 (5th Cir. 2009) (concluding, at summary judgment stage, that a jury could reasonably determine that notes from employee’s doctor constituted requests for accommodations, where the notes requested that the employer relocate the employee to another office, permit her to alternate job duties, and allow her to nap during her lunch break); EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 804 (7th Cir. 2005) (concluding, at summary judgment stage, that a jury could find that employer had sufficient notice to trigger the interactive process, where employee requested permission to use a shortcut and provided doctors’ notes “indicating that she suffered from neuropathy and recommending that she be permitted to avoid walking long distances”). Moreover, an accommodation request is valid even if the specific accommodation requested is not feasible because the interactive process requires that the employer help identify an appropriate accommodation. Taylor, 184 F.3d at 315.

Here, Ruggiero’s allegations regarding her request for an accommodation are more than adequate at the pleading stage. As explained, after Mount Nittany instituted a new requirement that all clinical employees must receive a Tdap vaccine, Ruggiero provided a note from her physician asking for an exemption on medical grounds. After Mount Nittany requested additional information, Ruggiero’s physician responded by identifying two impairments as a justification for an exemption. Through Dr. Dib’s notes, Ruggiero communicated her impairments to Mount Nittany and requested an exemption from a specific employer requirement. Although Dr. Dib’s notes did not identify Ruggiero’s substantial limitations, as explained above, Taylor—relying on ADA regulations—makes clear that this is not necessary, because the parties may identify the employee’s “precise limitations” during the interactive process. Taylor, 187 F.3d at 316 (quoting 29 C.F.R. § 1630.2(o)(3)).

C. The district court erred in holding, as a matter of law, that Mount Nittany satisfied its obligations under the interactive process.

The district court concluded, as a matter of law, that Mount Nittany satisfied its obligations under the ADA’s interactive process because it offered to accommodate individuals with eight specific medical conditions. As the district court put it, “[t]hose eight limitations appear to be the reasonable accommodation that [Mount Nittany] was willing to provide.” JA.26 (Op. 23). But the district court misunderstood the nature of employers’ obligations under the ADA—and the nature of the interactive process—and failed to view the complaint’s factual allegations in the light most favorable to Ruggiero.

The district court erred when it concluded—at the motion-to-dismiss stage—that Mount Nittany satisfied its interactive process obligations by offering a vaccine exemption to employees with eight specified conditions. Ruggiero’s allegations support the inference that Mount Nittany made a preemptive determination that it would accommodate only those eight impairments with respect to the vaccine requirement, and that Mount Nittany denied Ruggiero’s accommodation request because she did not have one of those impairments. Such a preemptive determination could conflict with the ADA’s goal of accommodating disabilities generally, and could have the effect of truncating the interactive process by foreclosing an individualized assessment.

To begin, the ADA does not permit an employer to accommodate some disabilities but not others. One purpose of the ADA amendments was to overrule decisions that “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, § 2(a)(4) (codified as 42 U.S.C. § 12101(a)(4) note). Accordingly, the ADA regulations provide that “[a] covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual” with an actual disability or a record of a disability. 29 C.F.R. § 1630.2(o)(4). That is, an employer must provide a reasonable accommodation to qualified individuals with a disability, regardless of the disability. An employer may not pick and choose which disabilities it will accommodate.

Also, because the interactive process is an individualized inquiry, an employer’s preemptive determination that it will deny a certain accommodation may have the effect of foreclosing the interactive process. The interactive process involves “identify[ing] the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” Taylor, 185 F.3d at 316 (quoting 29 C.F.R. § 1630.2(o)(3)). The Commission’s interpretive guidance to the ADA regulations contemplates a problem-solving approach in which the employer engages in the following steps:

(1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommodated, identify potential accommodations and assess [each accommodation’s] effectiveness[;] … and (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate[.]

29 C.F.R. pt. 1630, app. § 1630.9. The EEOC’s interpretive guidance goes on to emphasize that the first and second steps of the interactive process “require[] the individual assessment of both the particular job at issue, and the specific physical or mental limitations of the particular individual in need of reasonable accommodation.” Id.

The ADA regulations and the EEOC’s interpretive guidance make clear that the interactive process is an individualized inquiry. As described in the ADA regulations and the EEOC’s interpretive guidance, the interactive process focuses on assessing the “particular job” and “consult[ing] with the individual” employee as to his or her “precise limitations.” 29 C.F.R. § 1630.2(o)(3); 29 C.F.R. pt. 1630, app. § 1630.9. If an employer decides in advance that it will not accommodate certain disabilities, or that it will offer a given accommodation only in certain circumstances, the employee loses the opportunity to undergo this individualized inquiry.

Moreover, although the district court concluded as a matter of law that Mount Nittany participated in good faith, Ruggiero’s allegations plausibly support the opposite conclusion: that Mount Nittany failed to participate in good faith because it prematurely truncated the interactive process. Viewing the allegations in the light most favorable to Ruggiero, Mount Nittany rejected Ruggiero’s suggested accommodations—an exemption from the vaccine or permission to wear a mask—but did not propose any alternatives before terminating her. See Sears, 417 F.3d at 807 (explaining that, while an employer was “not obligated to provide [the specific] accommodation [the employee requested,] … it also could not simply reject the request and take no further action”).[4]

Based on Ruggiero’s allegations, it is possible to infer that, “had [Mount Nittany] participated in good faith, … other, unmentioned, possible accommodations” may have emerged during the interactive process. Taylor, 184 F.3d at 318. This Court has held that “summary judgment will typically be precluded” “where there is a genuine dispute about whether the employer acted in good faith.” Id. Therefore, at the motion-to-dismiss stage, allegations supporting an inference that the employer did not act in good faith would be more than sufficient (although not required) to preclude dismissal.

Finally, the district court’s additional rationales for finding Ruggiero’s complaint inadequate do not justify dismissal. See JA.26-27 (Op.23-24). First, although the district court viewed Ruggiero’s request for an exemption as a “purely personal preference,” JA.26 (Op. 23), “all alleged facts [must] be construed in the light most favorable to the plaintiff” at the motion-to-dismiss stage. Connelly, 809 F.3d at 793. Ruggiero’s allegations support the inference that she sought an exemption due to her impairments—severe anxiety and eosinophilic esophagitis—not based on “personal preference.” Moreover, to the extent that Ruggiero preferred an exemption to other possible accommodations, the employee’s preference is a valid consideration in identifying an appropriate accommodation. 29 C.F.R. pt. 1630, app. § 1630.9 (interactive process involves “[c]onsider[ing] the preference of the individual to be accommodated and selecting and implementing the accommodation that is most appropriate”).

Second, although the ADA does not “require that any particular accommodation must be made by the employer,” JA.26 (Op. 23), that principle does not permit dismissal here. Again, the employee’s preference is relevant. 29 C.F.R. pt. 1630, app. § 1630.9. And, as discussed supra at 25-26, Ruggiero’s allegations support the inference that Mount Nittany truncated the interactive process by failing to consider Ruggiero’s alternative suggestion (a mask) and terminating Ruggiero without suggesting other possible accommodations. Third, the district court exaggerated Ruggiero’s allegations in concluding that Ruggiero “essentially ask[ed] this court to establish the conditions of [her] employment.” JA.26-27 (Op. 23-24). Ruggiero’s complaint alleged a request for an accommodation, not a request that Mount Nittany reinvent her job description. Again, Mount Nittany had an opportunity during the interactive process to propose alternative accommodations that it may have preferred.

III. The district court erred in dismissing Ruggiero’s discriminatory termination claim.

The district court held that Ruggiero did not adequately plead discriminatory termination, deeming her allegations “conclusory.” But this Court has explained that a disability discrimination complaint is “sufficient to give [the employer] notice of the basis for [the employee’s] claim,” if it “pleads how, when, and where [the employer] allegedly discriminated against [the employee].” Fowler, 578 F.3d at 212. Ruggiero met this threshold by alleging that Mount Nittany discriminated against her on the basis of disability by terminating her on July 31.

To be specific, in Fowler, this Court held that a complaint stated a plausible failure-to-transfer claim under the Rehabilitation Act where an employee alleged (1) that her employer regarded her as disabled; (2) that she applied for an open position, that her employer did not transfer her to that position, and that her employer did not notify her of other open positions; and (3) that the employee “believed that [her employer’s] actions were based on her disability.” 578 F.3d at 212. Similarly, Ruggiero alleged (1) that she had a disability and that Mount Nittany regarded her as disabled; (2) that Mount Nittany terminated her; and (3) that Ruggiero believed that Mount Nittany terminated her based on her disability or because it regarded her as disabled. That was sufficient to provide notice to Mount Nittany of Ruggiero’s discriminatory termination claim.

IV. The district court erred in dismissing Ruggiero’s retaliation claim.

In dismissing Ruggiero’s retaliation claim, the district court concluded that her complaint did not allege protected activity. JA.28 (Op. 25). But the district court failed to recognize that “[a] request for reasonable accommodation of a disability constitutes protected activity under the ADA, and therefore retaliation for such requests is unlawful.” EEOC Enforcement Guidance on Retaliation and Related Issues, Notice No. 915.004, 2016 WL 4688886 (Aug. 25, 2016) (“Retaliation Guidance”), at *13 § II(A)(2)(e). This principle is well established in this Court and other courts of appeals. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 190-91 (3d Cir. 2003) (recognizing that a good faith request for an accommodation is protected activity under the ADA); see also Solomon v. Vilsack, 763 F.3d 1, 15 & n.6 (D.C. Cir. 2014) (same; collecting decisions recognizing the same principle).

The district court stated that Ruggiero did not allege “that she ‘participated in’ or ‘opposed’ any activities protected by the ADA.” JA.28 (Op. 25). To the extent the district court suggested that requesting an accommodation is not protected activity because it is not “participation” or “opposition,” this Court has already rejected that idea. As Shellenberger explained, “[t]he right to request an accommodation in good faith is no less a guarantee under the ADA than the right to file a complaint with the EEOC.” 318 F.3d at 191. This is because “it would seem anomalous … to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge.” Id. (quoting Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997)). Therefore, “[a]lthough a person making such a request might not literally ‘oppose’ discrimination or ‘participate’ in a complaint process, the individual is protected against retaliation for making the request.” Retaliation Guidance at *13 § II(A)(2)(e).

Again, Ruggiero was not required to establish a prima facie case to plead her retaliation claim. Connelly, 809 F.3d at 788. Instead, a complaint adequately pleads an ADA retaliation claim if it contains “sufficient factual allegations to raise a reasonable expectation that discovery will reveal evidence of the following elements: (1) [the employee] engaged in conduct protected by [ADA]; (2) the employer took adverse action against [the employee]; and (3) a causal link exists between [the] protected conduct and the employer’s adverse action.” Id. at 789 (Title VII retaliation); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (“[W]e analyze ADA retaliation claims under the same framework we employ for retaliation claims arising under Title VII.”).

Ruggiero’s complaint satisfies this standard. First, Ruggiero alleged protected conduct: her request for an accommodation. Ultimately, for Ruggiero’s retaliation claim to succeed, she “need only show that she had a reasonable, good faith belief that she was entitled to request the reasonable accommodation she requested.” Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 759 n.2 (3d Cir. 2004). Second, Ruggiero alleged a materially adverse action: her termination.

Third, Ruggiero’s complaint contains “sufficient factual allegations to raise a reasonable expectation that discovery will reveal evidence of … a causal link ... between her protected conduct and the employer’s adverse action.” Connelly, 809 F.3d at 789. As Ruggiero alleged, Dr. Dib’s letter requesting an exemption was dated July 10. On July 15, Smith issued a letter stating that the vaccine was required. On July 22, only a week after Smith’s letter, Ruggiero was effectively terminated. On July 31, just over a week later, Mount Nittany formally terminated Ruggiero. These events occurred in close succession and support an inference of temporal proximity. Moody v. Atl. City Bd. of Educ., __ F.3d __, No. 16-4373, 2017 WL 3881957, at *9 (3d Cir. Sept. 6, 2017) (explaining that “temporal proximity between the protected activity and adverse action” may provide evidence of a causal connection).

CONCLUSION

In conclusion, the Commission urges this Court to reverse the district court’s decision granting Mount Nittany’s Rule 12(b)(6) motion to dismiss.

Respectfully submitted,

JAMES L. LEE s/ Anne W. King_____

Deputy General Counsel ANNE W. KING

Attorney

JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

LORRAINE C. DAVIS 131 M St. NE, Fifth Floor

Assistant General Counsel Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

Dated: September 27, 2017

[1] The Commission takes no position as to any other issues presented in this appeal.

[2] Symptoms of anxiety may include “[f]eeling nervous, restless or tense,” “[t]rouble concentrating or thinking about anything other than the present worry,” “having trouble sleeping,” and “[h]aving the urge to avoid things that trigger anxiety.” Anxiety—Symptoms and causes, MayoClinic.org, http://www.mayoclinic.org/diseases-conditions/anxiety/symptoms-causes/dxc-20168124 (last visited Sept. 27, 2017).

[3] “In eosinophilic esophagitis, a type of white blood cell (eosinophil) builds up in the lining of the … []esophagus[]. This buildup … can inflame or injure the esophageal tissue. Damaged esophageal tissue can lead to difficulty swallowing or cause food to get caught .… Eosinophilic esophagitis is a chronic immune system disease … [that] is now considered a major cause of digestive system (gastrointestinal) illness.” Eosinophilic esophagitis—Definition, MayoClinic.org, http://www.mayoclinic.org/diseases-conditions/eosinophilic-esophagitis/basics/definition/con-20035681 (last visited Sept. 27, 2017).

[4] Generally speaking, an employer’s good faith efforts to accommodate the plaintiff are a defense to an award of compensatory or punitive damages, but not a defense to liability under the ADA. See 42 U.S.C. § 1981a(a)(3) (providing that, in failure-to-accommodate suits, compensatory and punitive “damages may not be awarded … where the [employer] demonstrates good faith efforts … to identify and make a reasonable accommodation”). Undue hardship is a defense to liability under the ADA. 42 U.S.C. § 12112(b)(5)(A) (providing that “not making reasonable accommodations” constitutes discrimination “unless [the employer] can demonstrate that the accommodation would impose an undue hardship”). However, undue hardship is not relevant here, at the pleading stage, because Mount Nittany, not Ruggiero, is required to assert and prove undue hardship. See Thomas v. Indep. Twp., 463 F.3d 285, 293 (3d Cir. 2006) (plaintiff is not required to plead affirmative defense); Turner v. Hershey Chocolate U.S., 440 F.3d 604, 614 (3d Cir. 2006) (employer bears burden of demonstrating undue hardship).