The ADA does not ordinarily require “expert medical evidence” to establish that an impairment substantially limits a major life activity. 6

CONCLUSION.. 15

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TABLE OF AUTHORITIES

Cases

Argo v. Blue Cross and Blue Shield of Kansas, Inc.,
452 F.3d 1193 (10th Cir. 2006)...................................... 14

Baum v. Metro Restoration Servs., Inc.,
No. 18-5699, 2019 WL 1569741 (6th Cir. April 11, 2019)........................................................................................ 12

Capobianco v. City of New York,
422 F.3d 47 (2d Cir. 2005)............................................... 5

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984).......................................................... 7

EEOC v. AutoZone, Inc.,
630 F.3d 635 (7th Cir. 2010).......................................... 13

Felkins v. City of Lakewood,
774 F.3d 647 (10th Cir. 2014)..... 4, 5, 7, 10, 11, 12, 13, 14

Franklin v. Shelton,
250 F.2d 92 (10th Cir. 1957).......................................... 13

Mancini v. City of Providence,
909 F.3d 32 (1st Cir. 2018)....................................... 12, 13

Marinelli v. City of Erie,
216 F.3d 354 (3d Cir. 2000)........................................... 13

Russell v. Phillips 66 Co.,
687 F. App’x 748 (10th Cir. 2017)................................ 11

Smith v. Midland Brake, Inc.,
180 F.3d 1154 (10th Cir. 1999) (en banc)....................... 7

Wilkerson v. Schirmer Eng’g Corp.,
No. 04-cv-0258, 2006 WL 228818 (D. Colo. Jan. 30, 2006)................................................................................. 5

Statutes

28 U.S.C. § 636(c)................................................................. 4

Americans with Disabilities Act of 1990,
42 U.S.C. §§ 12101 et seq................................................. 1

42 U.S.C. § 12101 note.................................................. 6, 7, 9

42 U.S.C. § 12102(1)(A)........................................................ 7

42 U.S.C. § 12102(2)(A)........................................................ 8

42 U.S.C. § 12102(2)(B)........................................................ 8

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

42 U.S.C. § 12205a................................................................ 7

ADA Amendments Act of 2008,
Pub. L. No. 110-325, 122 Stat. 3553 (2008).................... 6

Regulations & Rules

29 C.F.R. § 1630.2(i)(1)(ii).................................................... 8

29 C.F.R. § 1630.2(i)(2)......................................................... 8

29 C.F.R. § 1630.2(h)............................................................ 8

29 C.F.R. § 1630.2(j)(1)(ii).................................................... 8

29 C.F.R. § 1630.2(j)(1)(iii)................................................... 7

29 C.F.R. § 1630.2(j)(1)(v)......................................... 9, 10, 12

D. Colo. L.R. 40.1................................................................. 4

Fed. R. App. P. 29(a)(2)....................................................... 1

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is charged by Congress with enforcing federal prohibitions on employment discrimination, including the A mericans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”). The magistrate judge in this case rejected the plaintiff’s ADA discrimination and wrongful termination claims on the grounds that she failed to show she met the statutory definition of disability by not adducing expert medical testimony about her condition. While expert medical evidence may be helpful and even necessary in some ADA cases, it is not a categorical requirement in every case, as the statute, its implementing regulations, and the existing case law make clear. Because the plaintiff’s ordinary back impairment here does not warrant expert testimony to establish ADA coverage, the magistrate judge’s ruling is erroneous and would undermine effective enforcement of the ADA if upheld. Accordingly, the Commission respectfully offers its views to the Court. See Fed. R. App. P. 29(a)(2).

STATEMENT OF THE ISSUE [1]

Whether the ADA requires a plaintiff to adduce “expert medical evidence” to establish that an impairment substantially limits a major life activity.

STATEMENT OF THE CASE

A. Statement of the Facts

Empire Marketing Strategies performs marketing services at a chain of grocery stores throughout Colorado. I-A.A.-1 (Complaint ¶1).[2] From 2012 onward, plaintiff Jonella Tesone worked for Empire as a Produce Retail Sales Merchandiser and was responsible for setting up product displays in stores. I-A.A.-36 (job description); I-A.A.-189 (Plaintiff’s Response to Statement of Undisputed Facts). Throughout her employment, she suffered from lower back pain and muscle weakness stemming from a 2006 car accident, which limited her ability to lift. I-A.A.-204 (Namaste Medical Group note). Tesone testified that she informed Empire of this limitation when she was hired. II-A.A.-507 (Tesone Dep. 79). Nonetheless, she alleges, Empire pushed her to lift more than she could and complained that she was too slow in performing her job duties, which required lifting. I-A.A.-1-2 (Complaint).

Tesone alleges that she told Empire of her lifting restriction again in early November 2016. I-A.A.-190 (Response to Statement of Undisputed Material Facts ¶¶9-10). Empire asked Tesone to provide a doctor’s note explaining her need for accommodation. Id. at ¶11; I-A.A.-205-08 (Empire internal emails). In February 2017, Tesone obtained and gave Empire a doctor’s note confirming that she suffers from muscle weakness and chronic lower back pain and prescribing a fifteen-pound lifting restriction to alleviate these conditions. I-A.A.-204.

Empire fired Tesone on February 27, 2017, citing multiple performance problems. I-A.A.-34 (Nocerino Aff. ¶9). After filing a charge of discrimination with the EEOC and obtaining a right-to-sue letter, Tesone sued, asserting that Empire discriminated against her and terminated her because of her disability. I-A.A.-3, 5-6 (Complaint ¶¶17-18, 36-38). Empire moved for summary judgment, arguing that Tesone could not make out a prima facie case of disability discrimination because she failed to present expert testimony to establish she is disabled. I-A.A.-23-25.

B. District Court’s Decision

The magistrate judge granted Empire’s motion for summary judgment.[3] According to the district court, “the Tenth Circuit requires the testimony of an expert to establish a prima facie case of disability under the A DA.” II-A.A.-558 (Order at 2). Relying on Felkins v. City of Lakewood, 774 F.3d 647, 651 (10th Cir. 2014), the court held that Tesone could not establish a prima facie case because she offered no expert report or other admissible evidence establishing that her impairment limited her ability to perform a major life activity. II-A.A.-561-62 (Order at 5-6). According to the magistrate judge, Felkins failed to establish coverage under the ADA because she presented “no expert medical evidence” of her alleged disability; in the court’s view, “Plaintiff’s case suffers from the same deficiency as the plaintiff’s case in Felkins.” II-A.A.-562 (Order at 6).

The court rejected Tesone’s argument that Felkins is inapposite because Tesone obtained a doctor’s note describing her disability and restrictions. It refused to consider the doctor’s note Tesone gave Empire, characterizing it as “inadmissible hearsay” “not accompanied [by] an affidavit.” Id. (citing Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir. 2005); Wilkerson v. Schirmer Eng’g Corp., No. 04-cv-0258, 2006 WL 228818, at *6 (D. Colo. Jan. 30, 2006)). The magistrate then concluded that Tesone’s “own statements [about] her disability . . . are not sufficient to establish that she is disabled” because “‘such lay evidence . . . is inadmissible in court and thus cannot be used to oppose summary judgment.’” Id. (quoting Felkins, 774 F.3d at 651).

ARGUMENT

The A DA does not ordinarily require “expert medical evidence” to establish that an impairment substantially limits a major life activity.

In 2008, Congress amended the ADA to broaden the coverage provided by the statute’s definition of “disability.” ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (“ADAAA”). Because the courts were defining “disability” too narrowly, Congress observed, the ADA was not achieving its purpose of protecting individuals with disabilities from discrimination. See generally 42 U.S.C. § 12101 note, Findings and Purposes, at § (a). Accordingly, Congress amended the statute “to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA.” 42 U.S.C. § 12101 note, Findings and Purposes, at § (b)(1).

Post-amendment, the ADA continues to define “disability” to include, in relevant part, “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A); see also Felkins, 774 F.3d at 651. But Congress made clear that these standards would be applied differently post-ADAAA. Noting that “courts had previously too heavily focused their inquiries on the question of coverage,” Congress specified in the ADAAA that “the question of whether an individual’s impairment is a disability under the [post-amendment] ADA should not demand extensive analysis.” 42 U.S.C. § 12101 note, Findings and Purposes, at § (b)(5); see also 29 C.F.R. § 1630.2(j)(1)(iii) (same).[4] Instead, “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.” Id.

Because courts had “created an inappropriately high level of limitation necessary to obtain coverage under the ADA,” Congress pronounced that the definition of disability “shall be construed in favor of broad coverage of individuals.” 42 U.S.C. § 12102(4)(A); see also 29 C.F.R. § 1630.2(i)(2) (new ADA coverage standards are “not . . . demanding”). Congress redefined several key terms to achieve this goal, including “substantial limitation,” “major life activity,” and “being regarded as having such an impairment.” ADAAA § 4; 42 U.S.C. §§ 12102(2)(A)-(B), 12102(4)(A); see also ADAAA at § 2(b)(6) (ordering EEOC to revise its regulations accordingly).

The post-ADAAA regulations define an “impairment” as “[a]ny physiological disorder or condition . . . affecting one or more body systems, such as . . . musculoskeletal.” 29 C.F.R. § 1630.2(h). They also explain that “[a]n impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). They further provide that major life activities “include, but are not limited to . . . [t]he operation of a major bodily function, including . . . musculoskeletal . . . functions.” 29 C.F.R. § 1630.2(i)(1)(ii). Moreover, the regulations clarify, for purposes of determining substantial limitation, “[t]he comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.” 29 C.F.R. § 1630.2(j)(1)(v) (emphasis added).

Consequently, neither the statute nor the regulations require “expert medical evidence” of an impairment or of the degree to which it limits an individual in a major life activity. This is consistent with Congress’s stated purposes in the ADAAA to counteract courts’ overly strict interpretations of the ADA’s coverage requirements, and to clarify that whether an individual’s impairment qualifies as a disability under the ADA “should not demand extensive analysis.” 42 U.S.C. § 12101 note, Findings and Purposes at § (b)(5). Interpreting the amended ADA to impose a heightened evidentiary burden in the form of an “expert medical evidence” requirement for coverage would directly contravene Congress’s express intent in amending the statute.

The magistrate judge relied on Felkins in holding that “expert medical evidence” is required to establish an ADA-covered disability, but that case announced no such categorical rule. In Felkins, this Court affirmed summary judgment on the ground that the plaintiff failed to present expert medical evidence that she had a rare medical condition, avascular necrosis, or that it substantially limited any major life activity. 774 F.3d at 652. The Court noted Felkins’s testimony about her experience with avascular necrosis and ruled that her statements about it were “admissible insofar as they describe her injuries and symptoms, such as pain and difficulties walking, standing, and lifting.” Id. But it held that her testimony was not admissible to diagnose her avascular necrosis or to show how it limited her major life activities, because those were “beyond the realm of common experience” and “require the special skill and knowledge of an expert witness.” Id.

After drawing this distinction, the Court noted 29 C.F.R. § 1630.2(j)(1)(v)’s statement that scientific or medical analysis is usually not required to show an impairment is substantially limiting. Id. at 652. But, the Felkins Court explained, the degree of Felkins’s limitation was not the problem in this case; instead, “the failure of proof on which our decision turns is that she has not provided proper evidence that any limitation she may have is caused by avascular necrosis.” Id. at 652-53. According to the Court, not only did the medical evidence in the record contain “no mention of avascular necrosis, much less a description of its effects on Ms. Felkins,” but one of her medical records actually stated that she “did not have a chronic condition.” Id. at 651. Thus, the Court held, medical evidence was required in this case not only to show that the plaintiff’s limitations were caused by avascular necrosis but to diagnose it in the first place, especially in light of the contradictory evidence in the record.

Felkins plainly does not stand for the proposition that an ADA plaintiff must offer expert medical testimony in all cases. Rather, its rationale is limited to cases where the impairment and its resulting limitations are beyond the realm of common experience. See, e.g., Russell v. Phillips 66 Co., 687 F. App’x 748, 754-55 (10th Cir. 2017) (requiring medical evidence to show plaintiff’s depression medication caused his insomnia because the causal relationship was “beyond the realm of common experience” and “require[d] the special skills and knowledge of an expert witness”) (citing Felkins, 774 F.3d at 652); Mancini v. City of Providence, 909 F.3d 32, 41 (1st Cir. 2018) (citing Felkins for the proposition that medical evidence may be necessary when a condition would be unfamiliar to a jury and “only an expert could diagnose” it); Baum v. Metro Restoration Servs., Inc., No. 18-5699, 2019 WL 1569741, at *2-*3 (6th Cir. April 11, 2019) (ruling that plaintiff’s heart condition and medical records, “unlike more common or less complicated ones, require medical knowledge to understand”). But see Baum, 2019 WL 1569741, at *2 (observing that the amended ADA and its implementing regulations “set a low bar for proving actual disability” and noting that “the substantial-limitation inquiry ‘usually will not require scientific, medical, or statistical analysis’”) (citing 29 C.F.R. § 1630.2(j)(1)(v)).

As this Court observed in Felkins, where an impairment and its impact on a major life activity are within the realm of common experience—like lower back pain causing difficulties with lifting—a plaintiff may establish an actual disability without expert medical testimony. “‘[A] lay witness is competent to testify concerning those physical injuries and conditions which are susceptible to observation by an ordinary person.’” Felkins, 774 F.3d at 652 (quoting Franklin v. Shelton, 250 F.2d 92, 97 (10th Cir. 1957)); see also EEOC v. AutoZone, Inc., 630 F.3d 635, 643 (7th Cir. 2010) (reversing summary judgment and holding that neither the ADA, nor prior case law, nor regulations “[impose] a requirement that the plaintiff provide medical testimony in all cases”); Mancini, 909 F.3d at 42 (medical evidence not required to establish knee condition constituted an impairment); Marinelli v. City of Erie, 216 F.3d 354, 360-61 (3d Cir. 2000) (because the impairments—neck and back pain—were “among those ailments the least technical in nature” and “most amenable to comprehension by a lay jury,” medical evidence was not required to establish impairment).

“On a spectrum that ranges from missing limbs to rare medical infirmities, some conditions plainly fall within the universe of impairments that a lay jury can fathom without expert guidance. These conditions do not require medical evidence in an ADA case.” Mancini, 909 F.3d at 41. The need for expert medical evidence of a plaintiff’s impairment or substantial limitation is thus the exception, not the rule. This Court should correct the magistrate judge’s erroneous pronouncement that expert medical evidence is always required to establish disability under the ADA.

Finally, we note that the magistrate judge erroneously refused to consider the medical evidence Tesone offered—a doctor’s note she had submitted to Empire prescribing a 15-pound lifting restriction—on the ground that it was inadmissible hearsay because it was unsworn. See supra at 5. This Court has held repeatedly that at summary judgment a party may submit evidence in an inadmissible form so long as its underlying content and substance is admissible. See, e.g., Felkins, 774 F.3d at 653 (observing that, on summary judgment, it was the plaintiff’s burden to “set forth specific facts that would be admissible in evidence in the event of trial . . .”) (internal citation and quotation marks omitted); Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (“At the summary judgment stage, evidence need not be submitted in a form that would be admissible at trial. . . . Nonetheless, the content or substance of the evidence must be admissible.”) (internal citations and quotation marks omitted). Because Tesone’s physician could either testify at trial or provide an affidavit regarding the note prior to trial, the court should not have disregarded the note as hearsay for summary judgment purposes.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4718

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32

This brief complies with the type-volume requirements of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because it contains 2,589 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) and Tenth Cir. R. 32(b).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in Palatino Linotype 14 point.

s/Julie L. Gantz

JULIE L. GANTZ

May 13, 2019

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s/Julie L. Gantz

JULIE L. GANTZ

May 13, 2019

CERTIFICATE REGARDING PAPER COPIES

I hereby certify that the paper copies of this brief are exactly the same as the PDF electronic file submitted to the Court.

s/Julie L. Gantz

JULIE L. GANTZ

May 13, 2019

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s/Julie L. Gantz

JULIE L. GANTZ

May 13, 2019

CERTIFICATE OF SERVICE

I hereby certify that on May 13, 2019, I electronically filed the foregoing brief with the Clerk of the Court and all counsel of record by using the appellate CM/ECF system. I also certify that I filed seven paper copies of the foregoing brief with the Court by next business day delivery.

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

[1] We take no position with respect to any other issue presented in this appeal.

[2] Citations to the Appellant’s Appendix in this brief take the form [volume number]-A.A.-[page number].

[3] With the consent of the parties, Magistrate Judge Hegarty conducted all proceedings in this matter after September 18, 2017. I-A.A.-iii-iv (District court docket entries 13, 15); 28 U.S.C. § 636(c); D. Colo. L.R. 40.1. Accordingly, this brief uses the terms “magistrate judge” and “district court” interchangeably when referring to this case.

[4] In the ADAAA, Congress authorized the Commission to issue regulations “implementing the definitions of disability in section 12102 of this title (including rules of construction).” 42 U.S.C. § 12205a. These implementing regulations, promulgated after notice and comment, are entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); see also Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 n.5 (10th Cir. 1999) (en banc) (noting that the EEOC’s regulations implementing Title I “are entitled to a great deal of deference”).