Page(s)

Beaird v. Seagate Technology, Inc., 145 F.3d 1159
(10th Cir. 1998)...................................................................................... 10

Dactelides v. Board of School Trustees of South Bend, No. 13-3453,
2014 WL 1623739 (7th Cir. Apr. 24, 2014)............................. 1–2, 4, 6

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).......................... 2. 10–11

Gogos v. AMS Mechanical Systems, Inc., 737 F.3d 1170
(7th Cir. 2013)...................................................................................... 1, 6

Horgan v. Simmons, 704 F. Supp. 2d 814 (N.D. Ill. 2010)..................... 6

Mazzeo v. Color Resolutions International, LLC,
746 F.3d 1264 (11th Cir. 2014)......................................................... 2. 4

Meinelt v. P.F. Chang’s China Bistro, Inc., 787 F. Supp. 2d 643
(S.D. Tex. 2011)........................................................................................ 6

Miller v. Eby Realty Group. LLC, 396 F.3d 1105 (10th Cir. 2005)..... 10

Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995)........................ 10

Sanchez v. Vilsack, 695 F.3d 1174 (10th Cir. 2012)................................ 5

United States v. Delreal-Ordones, 213 F.3d 1263
(10th Cir. 2000)................................................................................. 2, 12

United States v. Lara-Velasquez, 919 F.2d 946 (5th Cir. 1990).......... 12

Statutes

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.................... 2

§ 12101 note......................................................................................... 4, 7

§ 12102(4)(B)............................................................................................ 7

§ 12116...................................................................................................... 2

§ 12117(a)................................................................................................. 2

ADA Amendments Act of 2008........................................................ passim

Rules and Regulations

29 C.F.R. § 1630.2(j)................................................................................ 5, 7

29 C.F.R. App. § 1630.2(i)....................................................................... 5–7

Federal Rule of Appellate Procedure 29(a).............................................. 3

Statement Pursuant to Rules 35(b) and 40(a)(2)

The panel ruled that Scavetta’s evidence was insufficient to support a “major bodily functions” instruction because even though Dr. Bray testified that Scavetta had rheumatoid arthritis and that she experienced pain, stiffness, fatigue, swelling, and tenderness in her joints, this testimony did not amount to “specific evidence” that her impairment substantially limited the operation of her musculoskeletal system. The panel’s erroneous ruling raises a question of exceptional importance for two reasons. First, the panel’s ruling conflicts with the decisions of at least one other court of appeals holding that, for certain diseases and disorders, a diagnosis standing alone is evidence of a substantial limitation of a major bodily function. See, e.g., Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172–73 (7th Cir. 2013); Dactelides v. Board of School Trustees of South Bend, No. 13-3453, 2014 WL 1623739, *2, n.1 (7th Cir. Apr. 24, 2014). The panel’s ruling also gave insufficient weight to Congress’s intent in enacting the ADA Amendments Act of 2008 (“ADAAA”). Congress “lessened the degree of functional limitation necessary for a plaintiff to be ‘substantially limited’ in a major life activity and [ ] thus disabled,” Dactelides, 2014 WL 1623739, *2, n.1, and meant to “‘convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.’” Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014) (quoting 42 U.S.C. § 12101 note).

Second, Scavetta offered ample circumstantial evidence to support the requested instruction. The panel’s apparent requirement that the supporting evidence be direct evidence conflicts with Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), United States v. Delreal-Ordones, 213 F.3d 1263 (10th Cir. 2000), and other appellate decisions.

Statement of Interest

Congress directed the U.S. Equal Employment Opportunity Commission to interpret and enforce Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”). 42 U.S.C. §§ 12116 (regulatory authority), 12117(a) (enforcement authority). In this case Scavetta asked the district court to instruct the jury that the term “major life activities” includes the operation of major bodily functions, as the amended statute now provides. The district court refused, and the panel affirmed, ruling that the evidence Scavetta provided was insufficient to support the requested instruction. The ADAAA defined “major life activities” to include the operation of major bodily functions and made “substantially limits” a less demanding standard, and the Commission is concerned that the panel’s opinion undercuts what Congress was trying to achieve. The Commission therefore, pursuant to Fed. R. App. P. 29(a), offers its views.

Argument

I. The panel ignored the expansion of coverage set forth in the ADAAA and in the Commission’s regulations.

To prevail on her claim of disability discrimination, Scavetta had to show that she had a disability: i.e., that she had an impairment that substantially limited one of her outwardly observable major life activities, like performing manual tasks, or that substantially limited the operation of one of her major bodily functions, like her musculoskeletal and immune systems. As the panel acknowledged, Scavetta offered evidence that she experienced pain, stiffness, fatigue, swelling, and tenderness in her joints, and she therefore requested a jury instruction that “major life activities” includes the operation of a person’s major bodily functions, as the amended statute now states. The district court refused to give this instruction, and the jury found for the defendant. On appeal, the panel affirmed, agreeing with the district court that Scavetta did not offer sufficient evidence to support the requested instruction.

The panel effectively ignored the ways in which Congress expanded coverage in the ADAAA. Congress “lessened the degree of functional limitation necessary for a plaintiff to be ‘substantially limited’ in a major life activity and [ ] thus disabled,” Dactelides v. Board of School Trustees of South Bend, No. 13-3453, 2014 WL 1623739, *2, n.1 (7th Cir. Apr. 24, 2014), and meant to “‘convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.’” Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014) (quoting 42 U.S.C. § 12101 note). Congress stated that in applying the “substantially limits” test, the courts had required “an inappropriately high level of limitation.” 42 U.S.C. § 1210a note (b)(5). Moreover, adding the “major bodily functions” provision was an “important addition,” reflecting Congress’s desire that the impact of impairments on the operation of a major bodily function “would not be overlooked or wrongly dismissed as falling outside the definition of ‘major life activities.’” 29 C.F.R. App. § 1630.2(i)

Dr. Bray testified as an expert and as Scavetta’s treating immunologist that she had rheumatoid arthritis. Scavetta’s brief as appellant (filed Jan. 6, 2014) at 6 (citing II Aplt. App. 614–15). The panel downplayed the significance of this diagnosis. The panel relied on Sanchez v. Vilsack, 695 F.3d 1174 (10th Cir. 2012), for the proposition that “‘it is not sufficient for a plaintiff to identify an impairment and leave the court to infer that it results in substantial limitations to a major life activity.’” Dec. at 6–7 (quoting Sanchez, 695 F.3d at 1178). Sanchez, however, was a case that arose prior to the ADAAA’s effective date and so did not apply the new standards established in the ADAAA. Sanchez, 695 F.3d at 1179 n.3. Under the ADAAA, there are certain diseases or disorders that “will, in virtually all cases, result in a determination of coverage.” 29 C.F.R. § 1630.2(j)(3)(ii) (discussing “predictable assessments” based on the “inherent nature” of certain impairments). That is, the diagnosis by itself may establish coverage. See, e.g., Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172–73 (7th Cir. 2013) (per curiam) (high blood pressure is a disorder of the circulatory system and therefore a disability even if the plaintiff’s disorder is controlled well by medication); Dactelides, 2014 WL 1623739 at *2, n.1 (because plaintiff “had been diagnosed with MS,” plaintiff “likely was disabled for purposes of the ADA”); Meinelt v. P.F. Chang’s China Bistro, Inc., 787 F. Supp. 2d 643, 651 (S.D. Tex. 2011) (brain tumor is a disability because it affects normal cell growth); Horgan v. Simmons, 704 F. Supp. 2d 814, 818–19 (N.D. Ill. 2010) (HIV-positive status is a disability because it prevents normal functioning of immune system).

The panel noted that the appendix to § 1630.2(i) states that “rheumatoid arthritis affects musculoskeletal functions,” not that it “substantially limits” them, but failed to appreciate that that paragraph in the appendix uses the word “affects” to mean “substantially limits”: “[C]ancer affects an individual’s normal cell growth; diabetes affects the operation of the pancreas . . . ; and [HIV] infection affects the immune system.” 29 C.F.R. App. § 1630.2(i). Indeed, one of the primary changes Congress made in the ADAAA was to clarify that the term “substantially limits” had been given too restrictive an interpretation. See 42 U.S.C. § 12102(4)(B); § 12101 note (b)(5)-(7). The Commission’s regulations clarify the new and broader meaning of the “substantially limits” test. “‘Substantially limits’ is not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i). “An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” Id. at § 1630.2(j)(1)(ii). Moreover, “the term ‘substantially limits’ shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘substantially limits’ applied prior to the ADAAA.” Id. at 1630.2(j)(1)(iv).

II. The panel erred by discounting the direct evidence supporting the instruction and by ignoring the circumstantial evidence supporting it.

In any event, this is not a case where the only evidence supporting the requested instruction was the diagnosis. The panel acknowledged that Dr. Bray testified that Scavetta “experienced pain, stiffness, fatigue, swelling, and tenderness in her joints.” Dec. at 7.[1] Scavetta, the panel conceded, testified that “she had difficulty performing manual tasks such as opening prescription medicine bottles, . . . squeezing, gripping, and grasping.” Id. at 7–8. Indeed, Dr. Bray twice directed that she not be required to give injections, Scavetta’s brief as appellant at 3, 8–10, the precise task the defendant ordered her to perform, and then fired her for not performing. All of this evidence showed that Scavetta’s rheumatoid arthritis was substantially limiting the operation of portions of her musculoskeletal system when compared to most people in the general population.

Moreover, this evidence is not the only evidence supporting the requested instruction. This is the direct evidence mentioned in Scavetta’s briefs supporting the requested instruction. As the Commission demonstrates infra, however, a court reviewing the sufficiency of the evidence supporting a requested instruction is not limited to the direct evidence supporting the instruction. Juries are allowed to draw inferences from the evidence offered by the parties, and a court reviewing the evidence supporting an instruction should consider the circumstantial evidence supporting it as well as the direct evidence supporting it. See infra.

Dr. Bray testified that RA has significant adverse effects on a patient’s musculoskeletal and/or immune systems. He testified, for example, that RA is a progressive disorder of both the musculoskeletal and immune systems. Scavetta’s brief as appellant at 13–14. An RA patient’s immune system damages the bones and the cartilage in her joints. Id. This misdirection prevents the immune system from performing its normal functions adequately. Scavetta’s reply brief at 25. Dr. Bray also testified that Scavetta has RA. The jury was therefore free to find, based on this testimony, that Scavetta’s RA significantly affects the functioning of her musculoskeletal and/or immune systems. This inference was supported in this case by all the other evidence (summarized above) showing the adverse effects that Scavetta experienced because of her RA. Scavetta therefore offered sufficient evidence to support the requested instruction.

It is well settled that a jury can draw inferences from the evidence offered by the parties. See, e.g., Miller v. Eby Realty Group. LLC, 396 F.3d 1105, 1111 (10th Cir. 2005) (in deciding whether discrimination occurred, the jury is “entitled to consider the evidence . . . and the reasonable inferences drawn therefrom”); Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1177 (10th Cir. 1998) (Tacha, J., dissenting in part) (“The federal discrimination statutes do not require a plaintiff to provide direct evidence of illegal discrimination.”); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995) (“[A] showing of pretext is evidence which allows a jury to infer discriminatory intent.”). Circumstantial evidence can at times be more probative than direct evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’”). Accordingly, a court reviewing the sufficiency of the evidence supporting a requested instruction should consider the circumstantial evidence supporting the instruction as well as the direct evidence supporting it. The Supreme Court so held in Desert Palace.

The issue in Desert Palace was whether a plaintiff alleging employment discrimination has to submit direct evidence of the employer’s discriminatory intent before a district court can instruct the jury about the shifting burdens in a mixed-motive analysis. The Supreme Court held unanimously that direct evidence is not required. 539 U.S. at 92, 101–02. Employment discrimination cases, the Court reaffirmed, are governed by the “‘[c]onventional rul[e] of civil litigation’” that a plaintiff must “prove his case ‘by a preponderance of the evidence,’ using ‘direct or circumstantial evidence.’” Id. at 99. Indeed, the McDonnell Douglas framework allows an employment discrimination plaintiff to use circumstantial evidence to prove that the employer acted with discriminatory intent. Id. at 100 (evidence of pretext is “‘one form of circumstantial evidence that is probative of intentional discrimination’” (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)) (emphasis in Desert Palace).

Even in criminal cases, where the prosecution bears a higher burden of proof than employment discrimination plaintiffs do, it is well settled that a requested jury instruction need not be supported by direct evidence. As this Court stated in United States v. Delreal-Ordones, 213 F.3d 1263 (2000),

The district court need not insist upon direct evidence of conscious avoidance of a fact before tendering a deliberate ignorance instruction. . . . . To establish a defendant’s “deliberate ignorance,” the Government is entitled to rely on circumstantial evidence and the benefit of the favorable inferences to be drawn therefrom.

Id. at 1268 (citation omitted). See also United States v. Lara-Velasquez, 919 F.2d 946, 952 (5th Cir. 1990) (“The defendant’s purposeful contrivance to avoid guilty knowledge may be established by direct or circumstantial evidence.”).

The panel overlooked this important legal principle when it ruled that Dr. Bray’s testimony about the effects of rheumatoid arthritis on a patient’s musculoskeletal and/or immune systems was not, even when considered together with all the other relevant direct and circumstantial evidence, sufficient to support the requested instruction about the operation of the major bodily functions. The testimony by Dr. Bray should not be discounted merely because it was not direct evidence and the jury would have had to draw inferences from it.

Conclusion

The Commission respectfully asks this Court to grant panel rehearing or rehearing en banc to reconsider whether Scavetta presented sufficient direct and circumstantial evidence to support the instruction she requested.

[1] Dr. Bray testified that when he examined Scavetta in early October 2009, four days before the defendant terminated her, 17 of her joints were swollen and painful or tender. Scavetta’s brief as appellant (filed Jan. 6, 2014) at 10, 22. Dr. Bray and his nurse practitioner observed swelling in Scavetta’s joints on other occasions as well. Scavetta’s reply brief (filed Mar. 7, 2014) at 21.

Statement of Interest

Argument

I. The panel ignored the expansion of coverage set forth in the ADAAA and in the Commission’s regulations.

II. The panel erred by discounting the direct evidence supporting the instruction and by ignoring the circumstantial evidence supporting it.

Conclusion

Certificate of Compliance with Local Rule 29.1

Certificate of Service