Table of Contents

Certificate of Interested Persons and Corporate Disclosure Statement......... C-1

Table of Authorities......................................................................................... iii

Argument ......................................................................................................... 1

A. The EEOC is entitled to damages because the jury’s finding that the Hospital acted in good faith is reversible error.................................................................... 1

1. The district court should have instructed the jury that the ADA requires reassignment without competition................................................. 2

2. In the alternative, the district court should not have instructed the jury that the thirty-day deadline the Hospital imposed on Bryk for obtaining a new job was reasonable as a matter of law......................................................... 7

B. Whether or not this Court vacates the jury’s finding that the Hospital acted in good faith, the EEOC is entitled to equitable relief......................................... 10

1. An employer’s good faith, standing alone, is only a defense to damages 11

2. The Hospital waived its reliance on the broader Stewart defense, which does not apply in any event because Bryk acted in good

faith and was not responsible for the breakdown of the interactive process 13

3. The district court should have awarded back pay, reinstatement or front pay, and an injunction................................................................................ 16

Conclusion...................................................................................................... 20

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases

*Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en banc)...... 3

*Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362 (1975).... 18, 19

Broadnax v. City of New Haven, 415 F.3d 265 (2d Cir. 2005)........................ 17

Brown v. Ala. Dep’t of Transp., 597 F.3d 1160 (11th Cir. 2010).................... 16

Corley v. United States, 556 U.S. 303, 129 S. Ct. 1558 (2009)......................... 2

EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244

(11th Cir. 1997)............................................................................... 16, 20

*EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012).......................... 3

EEOC v. W&O, Inc., 213 F.3d 600 (11th Cir. 2000)....................................... 19

Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (11th Cir. 1999).............. 19

Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849 (1971)...................... 17

Holly v. Clairson Indus., LLC, 492 F.3d 1247 (11th Cir. 2007)........................ 3

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001)......................... 2

Mich. Abrasive Co. v. Poole, 805 F.2d 1001 (11th Cir. 1986)......................... 12

Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658 (2009).............................. 17

*Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc)........ 3

*Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278

(11th Cir. 1997)........................................................................... 4, 10, 13

Teshima v. Runyon, EEOC Appeal No. 01961997, 1998 WL 236476

(May 5, 1998)........................................................................................ 15

*U.S. Airways v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002)...................... 3

United States v. Felts, 579 F.3d 1341 (11th Cir. 2009).................................... 10

United States v. Trujillo, 146 F.3d 838 (11th Cir. 1998)................................... 6

Weatherly v. Ala. State Univ., 728 F.3d 1263 (11th Cir. 2013)........................ 18

Williams v. Phila. Housing Auth. Police Dep’t, 380 F.3d 751

(3d Cir. 2004)................................................................................... 14-15

*Willis v. Conopco, Inc., 108 F.3d 282 (11th Cir. 1997)....................... 4, 11, 12

Statutes and Rule

42 U.S.C. § 1981a(a)(3)............................................................................ 10, 11

*Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.

§ 12111(8)............................................................................................... 5

§ 12111(9)(B).......................................................................................... 2

§ 12112(a)............................................................................................... 2

§ 12112(b)(5)(A)........................................................................... 2, 4, 18

§ 12117(a)....................................................................................... 17, 18

Fed. R. App. P. 28.1(c)(4)................................................................................. 1

Other Authority

*EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, 2002 WL 31994335 (Oct. 17, 2002)..................................... 3, 4, 7

Argument

The Hospital has appealed the final judgment for the EEOC and the EEOC has cross-appealed the district court’s failure to award relief. In its responsive brief, the Hospital misstates the facts, fails to acknowledge the jury’s fact-finding role, and does not acknowledge the deference with which this Court reviews a jury verdict. Moreover, the Hospital continues to misinterpret the ADA.

The EEOC’s opening brief addresses the Hospital’s appeal from the final judgment. Appellate rules restrict the EEOC in this reply brief to addressing only the issues raised in the cross-appeal. Fed. R. App. P. 28.1(c)(4). For the following reasons, this Court should reverse the denial of damages and equitable relief.

A. The EEOC is entitled to damages because the jury’s finding that the Hospital acted in good faith is reversible error.

As the EEOC explained in its opening brief, the Hospital’s policy of requiring disabled employees to compete for reassignment cannot constitute good faith as a matter of law because the ADA requires reassignment without competition. EEOC Br. at 41-52. A properly instructed jury would not have found that the Hospital acted in good faith. Even if the ADA did allow competition, the district court misled the jury by instructing it that the thirty days the Hospital gave Bryk to obtain a new job was a reasonable time period as a matter of law. EEOC Br. at 52-55.

1. The district court should have instructed the jury that the ADA requires reassignment without competition.

The ADA requires employers to make “reasonable accommodations for an otherwise qualified individual with a disability,” 42 U.S.C. § 12112(b)(5)(A), and includes “reassignment to a vacant position” as a form of reasonable accommodation. Id. § 12111(9)(B). “An accommodation can qualify as ‘reasonable,’ and thus be required by the ADA, only if it enables the employee to perform the essential functions of the job.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001). The mere opportunity to compete for a vacant position does not meet this standard. A fortiori, granting a disabled employee the opportunity to compete for a vacant position does not satisfy an employer’s reasonable accommodation obligation under the ADA.

The Hospital does not attempt to reconcile its contrary interpretation with the statutory text or with this Court’s observation in Lucas that a reasonable accommodation must “enable[ ] the employee to perform the essential functions of the job.” Nor does it explain why, if reassignment is not mandatory, the ADA mentions it at all. Disabled employees could apply for vacant positions without the express reference to reassignment, and the ADA already prohibits disability-based discrimination against job applicants. 42 U.S.C. § 12112(a); see also Corley v. United States, 556 U.S. 303, 315, 129 S. Ct. 1558, 1566 (2009) (statutes should be construed so that no part is rendered meaningless, superfluous, or redundant).

As explained more fully in the EEOC’s opening brief (EEOC Br. at 43-44, 46-49), the Supreme Court and persuasive Circuit authority acknowledge the general rule that employers using reassignment as a reasonable accommodation may not require disabled employees to compete for vacant jobs. U.S. Airways v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002); EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1167 (10th Cir. 1999) (en banc); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc); see also EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, 2002 WL 31994335, at question 29 (Oct. 17, 2002) (“EEOC Guidance”) (“Reassignment means that the employee gets the vacant position if she is qualified for it.”). The Supreme Court emphasized in Barnett that reassignment is a reasonable accommodation “in the run of cases,” even when reassigning a disabled employee requires an employer to waive disability-neutral rules. 535 U.S. at 397-98, 402-03, 122 S. Ct. at 1521, 1523. But see Resp. Br. at 43 (“Barnett is not really an opinion about ‘the run of cases,’ it is an opinion about an exception.”).

Although this Court has not yet ruled on the question, its precedents support the rule that reassignment means without competition. In Holly v. Clairson Industries, LLC, 492 F.3d 1247 (11th Cir. 2007), this Court explained that “the very purpose of reasonable accommodation laws is to require employers to treat disabled individuals differently in some circumstances.” Id. at 1262. In Willis v. Conopco, Inc., 108 F.3d 282 (11th Cir. 1997), this Court observed, “Reassignment to another position is a required accommodation only if there is a vacant position available for which the employee is otherwise qualified.” Id. at 284 (emphasis added).

The Hospital insists that the ADA cannot require reassignment without competition because reasonable accommodation “is intended to be a case-specific inquiry not susceptible of categorical rules.” Resp. Br. at 40. The EEOC agrees that reasonable accommodation is case-specific and that employers are free to select a reasonable accommodation other than reassignment when one is available. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997). Indeed, reassignment is an accommodation of “last resort.” EEOC Guidance, 2002 WL 31994335, at *20. It is appropriate only if there is a vacant position for which an individual is qualified. Id. If an employer can show that a specific reassignment would result in undue hardship, the employer need not offer that accommodation. 42 U.S.C. § 12112(b)(5)(A). Nevertheless, barring undue hardship, an employer may not require a disabled employee to compete for a vacant position for which she is qualified when it cannot or will not accommodate her in her current job.

The Hospital also argues that the ADA does not require reassignment without competition because the ADA does not require employers to redistribute essential functions, and mandatory reassignment would require an employer to “transfer[ ] the disabled employee’s former job duties to other employees, or . . . hir[e] additional employee(s) to fill the vacancy out of which the disabled employee was reassigned.” Resp. Br. at 48. This argument reflects a basic misunderstanding of the ADA. Employers are not required to accommodate an employee in a position where she cannot perform essential functions by giving those functions to someone else. 42 U.S.C. § 12111(8). Doing so would leave the disabled employee in a watered-down job. That is an entirely different scenario from reassigning an employee to a vacant position where she can perform the essential functions. Ironically, although the Hospital protests that mandatory reassignment would force it to hire someone new to fill an employee’s original position, this is exactly what the Hospital had to do anyway when it fired Bryk.

Next, the Hospital argues that even if reassignment must ordinarily be without competition, its purported policy of hiring only the best qualified applicants should exempt it from the ordinary rule because the Hospital deals with life-and-death situations. Resp. Br. at 43-44. In this respect, the Hospital says, the interests at stake are at least as great as those affecting the seniority system that the Supreme Court exempted from the mandatory reassignment rule in Barnett. Id. at 44. As the EEOC explained in its opening brief, the record casts doubt on whether the Hospital does, in fact, have a policy of hiring only the best-qualified applicants. EEOC Br. at 10 (citing R.178, Vol. 1 at 181). Viewing the evidence in the light most favorable to the EEOC, as this Court must, United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998), the Hospital does not have such a policy. In any event, the Hospital sets its own qualification standards and presumably would not qualify anyone who poses a risk to patient safety. Hiring a qualified individual, even if not the most qualified, should therefore not endanger anyone. That is certainly true here, where two of the three positions at issue did not involve patient care (R.84-9 at 11-16; R.179, Vol. 2 at 142-43), and where the Hospital never argued that Bryk was unqualified for the third position − only that the position was already filled. (R.180, Vol. 3 at 127)

Finally, the Hospital argues that neither the ADA nor Barnett requires it to modify its “disciplinary rules” prohibiting internal transfers for employees who have not been in their current jobs for six months or who have a final written warning in their records. Resp. Br. at 44-47. The Hospital argues that “disciplinary rules” are not “neutral” within the meaning of Barnett, and are therefore not trumped by the ADA, because they apply only to employees who have engaged in misconduct. Id. at 45-47. In fact, like the “neutral” rules described in Barnett, disciplinary rules apply to all employees. This is why the Hospital characterizes them as “necessary to regulate employees’ behavior.” Id. at 46. An employee may not feel the impact of a disciplinary rule unless she engages in misconduct, but she also may not feel the impact of a “furniture budget” rule unless she wants a new chair. See id. at 45-46. There is no meaningful distinction between the Hospital’s “disciplinary rules” and any other “neutral” rules.

The Hospital cites no support for the proposition that “disciplinary rules” are somehow different, offering only a hypothetical in which an employer is asked to reinstate a violent employee into a job where he once attacked a customer. Id. at 46-47. This hypothetical is absurd, as a violent employee with a history of attacking a customer would surely not be qualified to fill a customer-service position, and the ADA does not require reassignment unless a disabled employee is qualified for the new job. EEOC Guidance, 2002 WL 31994335, at *20. The hypothetical has no bearing on the instant case, which, as the Hospital acknowledges, must be decided on its own facts. Resp. Br. at 40.

2. In the alternative, the district court should not have instructed the jury that the thirty-day deadline the Hospital imposed on Bryk for obtaining a new job was reasonable as a matter of law.

As the EEOC explained in its opening brief, the district court misled the jury in its consideration of the Hospital’s good faith by telling the jury that the thirty-day deadline the Hospital imposed on Bryk for obtaining a new job was reasonable as a matter of law. EEOC Br. at 52-55. The Hospital argues that it gave Bryk thirty days to apply for a new position, not to obtain a new position. Resp. Br. at 2. The record shows otherwise. An email from Team Member Relations Manager Krista Sikes told Bryk, “If you are unable to secure another position within BayCare in these 30 days, you would be terminated.” EEOC Ex. 81 (emphasis added). Likewise, an email from Team Member Relations Coordinator Jane Lewis explained that Bryk “was given 30 days to obtain another position within BayCare.” EEOC Ex. 49. See also R.178, Vol. 1 at 104 (Sikes told Bryk “if I’m unable to secure another position within 30 days, I would be terminated”).

While it is true that the Hospital agreed to extend the thirty-day time period “for any position for which Bryk was being considered to interview,” Resp. Br. at 2, this offer was functionally meaningless. Bryk applied for six positions within the thirty days, as the Hospital confirms that it permitted her to do. Resp. Br. at 3 (“the trial court correctly found that the Hospital gave Bryk thirty days to ‘identify a position for which she was qualified’”). When the thirty days were over, Bryk told Sikes that she was under consideration for some jobs. (R.178, Vol. 1 at 109) Sikes told Bryk that her applications were “not anywhere near an interview state, so that if it was, that the termination could be extended, but since it wasn’t, then I was terminated.” Id.

It is of no import that Bryk did not begin applying for jobs until several weeks into the thirty-day period. The Hospital says that it gave her thirty days to identify an appropriate position (Resp. Br. at 3), and she met this deadline. Bryk did not withdraw her applications after the Hospital terminated her, but the Hospital never called her for an interview – not within thirty days of her applications, and not any time thereafter. See EEOC Ex. 25, 30 (applications remained open for many months after Byrk’s termination). Thus, even if Bryk had submitted her applications earlier in the thirty-day period, there is no reason to believe that the Hospital would have acted promptly. The Hospital’s failure to follow up is especially significant in light of the jury’s finding that Bryk was qualified for at least one of the jobs to which she applied.

The Hospital overstates the extent of its own efforts during the thirty-day period. Resp. Br. at 3-4. Admittedly, it waived its typical transfer requirements, but the ADA required it to do so when it chose to rely on reassignment rather than allowing Bryk to use a cane in her then-current job. See supra at 3 (citing Barnett, 535 U.S. at 397-98, 402-03, 122 S. Ct. at 1521, 1521). The EEOC does not contend, as the Hospital suggests (Resp. Br. at 10), that the ADA required the Hospital to identify vacancies, but it is relevant that Sikes did not give Bryk the same level of support that recruiters typically give “position elimination” transfer applicants. Although Sikes “checked the status of Bryk’s applications,” id. at 4, she did not contact recruiters throughout BayCare to ask about appropriate positions (R.179, Vol. 2 at 46-50), as recruiters do for “position elimination” candidates. (R.179, Vol. 2 at 83-84) Nor did she ask hiring officials to speed up their review of Bryk’s applications. (R.179, Vol. 2 at 49)

Had the jury been free to consider the entirety of the Hospital’s efforts, including its imposition of the thirty-day deadline, it would have been less likely to find that the Hospital acted in good faith. The district court’s instruction tilted the scale and prejudiced the EEOC. This Court should therefore vacate the jury’s finding of good faith. See United States v. Felts, 579 F.3d 1341, 1342-43 (11th Cir. 2009) (erroneous jury instruction is grounds for reversal if reviewing court “ʻis left with a substantial and ineradicable doubt as to whether jury was properly guided in its deliberations’”).

B. Whether or not this Court vacates the jury’s finding that the Hospital acted in good faith, the EEOC is entitled to equitable relief.

The Hospital wrongly argues that the jury’s finding of good faith is a complete defense to liability, exempting it not only from damages but also from equitable relief. Resp. Br. at 12-23. In fact, an employer’s good faith, standing alone, is only a defense to damages, as provided in 42 U.S.C. § 1981a(a)(3). The ADA recognizes a broader defense to liability (the “Stewart defense”), but that defense applies only if (1) the employer acted in good faith, and (2) the employee did not act in good faith, and (3) the employee is responsible for the breakdown in the interactive process. Stewart, 117 F.3d at 1287. The Hospital did not ask the jury to find that Bryk lacked good faith or that she was responsible for the breakdown of the interactive process. Based on this omission, the district court properly held that the Hospital had waived the Stewart defense. (R.197 at 15) In any event, the facts would not support a finding that Bryk lacked good faith or that she was responsible for the breakdown of the interactive process. For all of these reasons, the district court properly entered final judgment for the EEOC. As the prevailing party, the EEOC is presumptively entitled to equitable relief, and the district court’s reasons for denying it constitute reversible error.

1. An employer’s good faith, standing alone, is only a defense to damages.

To the extent the Hospital relies on 42 U.S.C. § 1981a(a)(3) to argue that an employer’s good faith is a defense to liability, its reliance is misplaced. As the Hospital recognizes, “nothing in section 1981a(a)(3) was designed to or intended to speak to the effect of good faith efforts on any remedy other than damages.” Resp. Br. at 20. Nevertheless, ignoring the plain language of the statute, the Hospital argues that the jury’s finding of good faith under section 1981a(a)(3) should absolve it of liability. Id. at 17-23.

The Hospital’s sole argument in support of this contention is that the pattern jury instructions and verdict form place the good faith defense in front of the undue hardship defense, and instruct the jury to stop deliberating if it finds that the employer acted in good faith. Resp. Br. at 24-25. Undue hardship is a defense to liability. Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997). Accordingly, the Hospital argues, the good faith defense – which, if successful, prevents the jury from reaching the undue hardship defense – must also be a defense to liability. Resp. Br. at 25.

As the EEOC explained in its opening brief, the order of the jury instructions cannot rewrite substantive law. EEOC Br. at 36-38. Under the facts of this case, in which good faith and undue hardship were both at issue, the order of the instructions was incorrect. The jury should have considered undue hardship, which is a defense to liability, before it considered good faith, which is a defense only to damages.

The Hospital fails to acknowledge that undue hardship is an affirmative defense. Willis, 108 F.3d at 286 (undue hardship must be “pled and proven by an ADA defendant”). Thus, it was the Hospital’s burden, not the EEOC’s, to make sure that this defense was preserved. See Mich. Abrasive Co. v. Poole, 805 F.2d 1001, 1006 (11th Cir. 1986) (defendant “voluntarily relinquished [affirmative] defense by inaction”). The Hospital’s failure to object to the order of the verdict form does not mean that the form was correct. But see Resp. Br. at 25 (“There was no reason to object to the Form at trial because the Form is in line with the law.”). Rather, it means that the Hospital waived its affirmative defense of undue hardship.

2. The Hospital waived its reliance on the broader Stewart defense, which does not apply in any event because Bryk acted in good faith and was not responsible for the breakdown of the interactive process.

Contrary to the Hospital’s contention (Resp. Br. at 17, 21), the EEOC does not argue that section 1981a(a)(3) shows that good faith is never relevant to liability. However, the provision itself speaks only to damages, and the relevance of good faith to liability must be found elsewhere.

As noted above, case law establishes a defense to ADA liability when (1) an employer acts in good faith, and (2) the employee did not act in good faith, and (3) the employee is responsible for the breakdown of the interactive process. Stewart, 117 F.3d at 1287. An employer must prove all three prongs of this defense to escape liability for failing to provide a reasonable accommodation. Id. Without proving the employee’s lack of good faith and her responsibility for the breakdown of the interactive process, even a good-faith employer is liable for equitable relief.

The Hospital acknowledges that Stewart requires a showing of more than just the employer’s good faith. Describing the Stewart line of cases, the Hospital says, “Those cases provide for no liability when the employer engages in the interactive process in good faith but the employee’s failure to participate results in a failure to accommodate.” Resp. Br. at 17-18 (emphasis added). Moreover, although the Hospital says “[i]t would be manifestly irrational to deny an employer a complete defense for good faith,” id. at 20, the hypothetical it offers in support of this statement involves an employee who “grossly overstate[s] the extent of his disability” – thereby acting without good faith. Id. at 20-21.

The district court correctly held that the Hospital waived its reliance on the Stewart defense by not asking the jury to determine whether Bryk had acted in good faith or whether she was responsible for the breakdown of the interactive process. (R.197 at 14-15) As the court explained, “[T]he Hospital proceeded in this case as though a finding of good faith would absolve it of all liability . . . . The Hospital specifically quoted § 1981a(a)(3) as the basis for its good faith defense in the Joint Pretrial Statement. Further, the cases upon which the Hospital relies [in opposition to the EEOC’s motion to amend the judgment] involve not only a showing of good faith on behalf of the employer, but also a lack of good faith participation by the employee, an issue the verdict form did not present to the jury.” Id. at 14. Because the Hospital had not submitted the question of Bryk’s good faith to the jury, the district court properly declined to apply the Stewart defense. Id. at 15.

The Hospital seeks to circumvent its failure to ask the jury to determine Bryk’s good faith by arguing that “the good faith issue clearly hinged on the comparative efforts of the Hospital and Bryk.” Resp. Br. at 28. This is untrue. Nothwithstanding the jury’s finding that the Hospital acted in good faith, the jury could have found that Bryk acted in good faith as well. See Williams v. Phila. Housing Auth. Police Dep’t, 380 F.3d 751, 770 n.14 (3d Cir. 2004) (“‘an employer’s innocent mistake . . . is sufficient to subject it to liability under the ADA’”) (citation omitted); Teshima v. Runyon, EEOC Appeal No. 01961997, 1998 WL 236476 (May 5, 1998) (where employer and employee both acted in good faith, employee is entitled to relief).

The Hospital criticizes the EEOC for not pointing out the limits of the section 1981a(a)(3) defense earlier and for challenging use of the Stewart defense only in a post-trial motion. Resp. Br. at 1, 26. However, the EEOC was not obligated to do the Hospital’s legal research and, as the district court recognized, “there is no evidence that the EEOC adopted [the Hospital’s] interpretation [that a finding of good faith would absolve it of all liability].” (R.197 at 14) The EEOC had no reason to explain the limits of the section 1981a(a)(3) defense until the district court erroneously entered final judgment for the Hospital. (R.173) At that point, the EEOC explained the court’s error and the court correctly entered an amended judgment for the EEOC. (R.198)

Even if the Hospital had not waived the Stewart defense, it could not escape liability because it could not show that Bryk acted without good faith or that she was responsible for the breakdown of the interactive process. The district court held Bryk responsible for the breakdown of the interactive process (R.197 at 15), but the facts do not support this finding. Bryk applied for six jobs before the thirty-day deadline (R.100-39 at 10-12), and the jury found that she was qualified for at least one of them. (R.164 at 1) The Hospital did not act on Bryk’s applications at any point, although they remained active for months after her termination. EEOC Ex. 25, 30. Even if Bryk had applied for positions on Day 1, therefore, there is no reason to believe the Hospital would have acted on her applications within thirty days. Bryk’s delay was meaningless because it had no impact on the Hospital’s failure to provide a reasonable accommodation.

3. The district court should have awarded back pay, reinstatement or front pay, and an injunction.

The Hospital erroneously argues that the EEOC has waived its request for back pay as a form of equitable relief because it initially asked the jury to determine back pay as an element of damages. Resp. Br. at 50. The district court correctly held that the EEOC’s decision to submit back pay to the jury “does not necessarily foreclose the Court’s consideration of back pay as an equitable remedy.” (R.197 at 14)

“Backpay in this Circuit is considered equitable relief,” and the district court may calculate a back pay award even when the parties have asked the jury to do so. See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1183-85 (11th Cir. 2010) (granting remittitur and remanding jury’s back pay award for recalculation by the district court); EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1252-53 (11th Cir. 1997) (district court may increase amount of jury’s back pay award when there is “no reasonable dispute as to the amount of lost wages and benefits”). Broadnax v. City of New Haven, 415 F.3d 265 (2d Cir. 2005), which the Hospital cites (Resp. Br. at 50), is not to the contrary. Broadnax holds only that a district court has discretion to submit the equitable remedy of back pay to a jury, not that the parties waive their right to have the court determine back pay when they initially request a jury determination. 415 F.3d at 272.

The Hospital is also wrong that it is not liable for back pay because the ADA requires a finding of discriminatory intent to support such an award, and the jury’s finding of good faith negates the possibility of discriminatory intent. Resp. Br. at 52-53. The ADA does, indeed, require a finding of intentional discrimination (or, as interpreted through case law, a finding of disparate impact discrimination, see Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849 (1971)), but this is a precondition for all forms of equitable relief, not only for back pay. 42 U.S.C.

§ 12117(a) (incorporating by reference 42 U.S.C. § 2000e-5(g)(1)). The Hospital’s argument is a back-door effort to have this Court hold that good faith is a complete defense to liability, which it is not. See supra at 11-12.

“Intentional discrimination” under the ADA is a term of art, referring to practices that treat an individual less favorably because of her protected characteristics. See Ricci v. DeStefano, 557 U.S. 557, 577, 129 S. Ct. 2658, 2672 (2009) (interpreting “intentional discrimination” under Title VII). The statute expressly makes failure to provide a reasonable accommodation a prohibited form of intentional discrimination, whether or not an employer’s good faith provides a defense to damages. 42 U.S.C. § 12112(b)(5)(A).

Having obtained a favorable verdict, the EEOC is presumptively entitled to back pay. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S. Ct. 2362, 2373 (1975). The Hospital seeks to distinguish Albemarle Paper as a Title VII case, arguing that “Title VII does not feature anything akin to the ADA’s interactive process” and suggesting “it is very likely that the Supreme Court would find it appropriate to deny back pay to an ADA plaintiff, like Bryk, whom the trial court found had caused a complete breakdown of the interactive process.” Resp. Br. at 53. Unfortunately for the Hospital, the ADA expressly incorporates the “powers, remedies, and procedures” of Title VII. 42 U.S.C. § 12117(a). As described in the EEOC’s opening brief, the district court’s refusal to award back pay did not satisfy Albemarle Paper’s requirement that such denial “not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination,” and the district court did not suggest otherwise. EEOC Br. at 60-61 (quoting Albemarle Paper, 422 U.S. at 421, 95 S. Ct. at 2373).

The favorable verdict also entitles the EEOC to an award of front pay or reinstatement. Weatherly v. Ala. State Univ., 728 F.3d 1263, 1272 (11th Cir. 2013); EEOC v. W&O, Inc., 213 F.3d 600, 619 (11th Cir. 2000). There is no basis for the Hospital’s argument that this request “is moot because Bryk does not desire reinstatement.” Resp. Br. at 54. Bryk earns less money in her current position than she earned at the Hospital. Compare R. 178, Vol. 1 at 127 ($29/hour in current job) with EEOC Ex. 47 ($36.44/hour in Hospital job). Albemarle Paper makes clear that a fundamental purpose of the anti-discrimination laws is to make victims whole. Albemarle Paper, 422 U.S. at 421, 95 S. Ct. at 2373; see also Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999) (central purpose of ADA is “ʻto restore the plaintiff to the economic position the plaintiff would have occupied but for the illegal discrimination’”) (citation omitted). Even though Bryk enjoys her current job, there is no evidence that she would not accept reinstatement if offered an appropriate position, or front pay if not.

Finally, the EEOC is entitled to injunctive relief. For the reasons described supra and in the EEOC’s opening brief, the ADA requires employers to reassign, without competition, disabled employees to positions for which they are qualified and in which they have expressed interest. The Hospital vehemently disputes this obligation. Accordingly, there is every reason to believe that without an injunction, the Hospital will engage in this same discrimination against other employees. “[T]he EEOC is normally entitled to injunctive relief where it proves discrimination against one employee and the employer fails to prove that the violation is not likely to recur.” Massey Yardley, 117 F.3d at 1253. This is such a case.

Conclusion

This Court should vacate the jury’s finding of good faith and remand for a calculation of damages. If the jury had been properly instructed about the governing law and/or had been free to consider whether it was reasonable for the Hospital to impose a thirty-day limit on Bryk for obtaining a new job, it would have been less likely to find that the Hospital acted in good faith.

This Court should also remand for an award of back pay, reinstatement or front pay, and injunctive relief. Equitable relief is presumptively available to a prevailing ADA plaintiff, and the district court offered no valid reason for denying such relief here.

Respectfully submitted,

P. DAVID LOPEZ /s/ Gail S. Coleman

General Counsel Attorney

EQUAL EMPLOYMENT

JENNIFER S. GOLDSTEIN OPPORTUNITY COMMISSION

Associate General Counsel Office of General Counsel

131 M Street, NE, Room 5SW24L

MARGO PAVE Washington, DC 20507

Assistant General Counsel (202) 663-4055

gail.coleman@eeoc.gov