Statement of Interest

The U.S. Equal Employment Opportunity Commission is the agency charged by Congress with responsibility for enforcing the federal prohibitions on employment discrimination, including the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”). The instant appeal presents a number of issues that involve modifications made by the ADA Amendments Act of 2008 to the definition of “disability” under the ADA, and the proper analysis of claims of disability discrimination under the statute. This appeal also presents other questions implicating the effective enforcement of the ADA and other federal antidiscrimination statutes, including the proper standard for assessing evidence that the employer’s proffered explanation for its adverse action is a pretext for discrimination. Because of the importance of these issues to the effective enforcement of the ADA and to other federal antidiscrimination statutes, the Commission respectfully offers its views to the Court. As a federal agency, the Commission is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a).

Statement of Issues

1. Whether the district court abused its discretion in ruling on whether Travers was actually disabled where Verizon had waived the issue for purposes of summary judgment and the court gave Travers no notice it would address the issue.

2. Whether the record evidence of Travers’ disability was sufficient to withstand summary judgment on the question of coverage under the ADA.

3. Whether the district court incorrectly analyzed whether Verizon regarded Travers as disabled by applying inconsistent pre-ADA Amendments law.

4. Whether Travers’ evidence contradicting Verizon’s asserted reason for her termination is sufficient to create a fact question as to pretext.

Statement of the Case

A. Statement of Facts

Patricia Travers began working for Verizon Wireless in May 2008. R.29-1, PageID#560 (Travers dep.). Travers worked as a Senior Representative in the Continuity Marketing Operations (“CMO”) department, which was a call center for Verizon. R.29-1, PageID#604 (Travers dep.); R.29-4, PageID#657 (Trank dep.); R.29-7, PageID#797 (Gowler dep.).

Travers suffers from a permanently damaged heart. Travers first became aware of her heart condition in March 2010, when she started having heart palpitations. R.29-1, PageID#579 (Travers dep.). Travers also experienced dizziness, rapid heartbeat, shortness of breath, and had difficulty speaking for long periods of time. R.29-3, PageID#654 (MetLife claim chart). Even though Travers has a sedentary job, working was difficult for her, but her heart condition did not limit her ability to perform her job. R.29-3, PageID#654 (MetLife claim chart), R.29-1, PageID#602-03 (Travers dep.).

Travers immediately started wearing a heart monitor so doctors could identify the nature of her heart problem, and in the ensuing months Travers’ “doctor actually found the problem” with her heart. R.29-1, PageID#580 (Travers dep.). Ultimately, an echocardiogram revealed that Travers’ entire left ventricle had been damaged by a virus, and cannot be repaired. Id.; R.29-1, PageID#559 (Travers dep.). Sometime during this period, Travers was placed on medication intended to stop her heart palpitations. Id. Travers will need to take heart medication for the rest of her life. R.29-1, PageID#602 (Travers dep.).

At all relevant times, Verizon management was aware that Travers had a heart condition. Travers wore her heart monitor to work, and she told a number of Verizon supervisors and managers about her heart condition, including Phillip Trank, Travers’ direct supervisor; Minyarn Pratt, a Performance Supervisor in the CMO department; Denise Gowler, a manager in the CMO department; and Kimberley Gibson, another CMO manager. R.23, PageID#500 (Gibson-Harris decl.); R.29-1, PageID#559-62, 604 (Travers dep.); R.29-2, PageID#619 (Pratt dep.); R.29-7, PageID#797 (Gowler dep.).

Travers took leave during some of March and April 2010, and all of May 2010 because of her heart condition. R.29-10, PageID#858 (Travers’ work calendar); R.29-3, PageID#653-54 (Verizon and MetLife leave documents). On June 2, 2010, one day after returning to work from her leave, Travers passed out inside her car in the workplace parking lot. R.29-1, PageID#585-86 (Travers dep.). When Travers regained consciousness, she entered the workplace and reported what had happened. Id. HR manager LaJuana Miller called an ambulance for Travers, and the ambulance transported her to a hospital. Id. Travers was told by her doctor that her medication may have caused her to lose consciousness. Id.

Nyla Wright is the South Area Director of Human Resources for Verizon, and has responsibility for the facility where Travers worked. R.56-2, Page ID#1363 (Wright decl.). Wright’s responsibilities include approving termination decisions in her territory. R.56-2, Page ID#1363 (Wright decl.).

Wright stated via declaration that on June 3, 2010—the day after Travers passed out in the parking lot, see R.29-1, PageID#585-86 (Travers dep.)—she received an email from a Human Resources Consultant at Travers’ facility that contained two separate Termination Request Forms regarding Travers. R.56-2, Page ID#1363 (Wright decl.). One form was dated May 27, 2010, was addressed to HR Manager Miller from Pratt, and listed “integrity” as the reason that Pratt was recommending Travers be terminated. The May 27 form also described certain alleged violations of Verizon’s Code of Business Conduct (“COBC”), which included as the “Triggering Event/Date” for the termination recommendation Travers’ decision to waive a customer’s equipment rebate on April 21, 2010, when doing so “was not warranted.” R.29-3, PageID#646-48 (May 27 termination form). The May 27 form has a box for “Executive Director-HR Approval,” with yes/no check boxes; neither box was checked on this document. R.29-3, PageID#646 (May 27 termination form).

The second Termination Request Form provided a completely different reason for terminating Travers—her attendance. The second Termination Request Form was dated the same day as the email—June 3, 2010—and, unlike the May 27 form, stated that it was “for HR Executive Director Use Only.” R.53-1, Page ID#1348 (June 3 termination form). On this “for HR Executive Use Only” form, Verizon stated that “[t]he decision to terminate [Travers’] employment is supported by local HR. Specifically, [Travers] violated the attendance policy.”[1] R.53-1, Page ID#1348 (June 3 termination form).

Travers remained out of work on medical leave for the next two weeks, returning on June 21, 2010. R.29-10, PageID#858 (Travers’ work calendar); R.29-3, PageID#653-54 (Verizon and MetLife leave documents). Upon Travers’ return, Gibson and Pratt met with Travers and informed her that she was being terminated. R.23, PageID#500 (Gibson-Harris decl.); R.29-2, Page ID#619 (Pratt dep.), R.29-1, PageID#558 (Travers dep.). According to Travers, in this meeting Gibson stated that Travers had “missed a lot of work, and we need you here,” and informed Travers that her “services were no longer needed at Verizon Wireless.” R.29-1, PageID#558-59, 598 (Travers dep.).[2]

B. Summary Judgment Motion

In its memorandum in support of summary judgment, Verizon stated it was “assum[ing], arguendo, that Travers will be able to create a genuine issue of fact as to the elements of her prima facie case and, therefore, does not dispute the prima facie case for purposes of summary judgment.” R.21, PageID#479 (Verizon’s opening brief). As such, Verizon did not contest on summary judgment that Travers has an actual disability, as defined by the ADA, though Verizon did present a separate argument disputing whether Travers was regarded as disabled. R.21, PageID#478-79 (Verizon’s opening brief).

Verizon contended that Travers was terminated for cause, as a result of what it claimed were her repeated violations of the COBC. R.21, PageID#479-80 (Verizon’s opening brief). Travers contested Verizon’s claim that it did not regard her as disabled. R.34, PageID#971 (Travers’ opposition mem.). Travers also argued that Verizon’s claimed reason for her termination was pretextual, as evidenced by Gibson’s statement that attendance was the reason for her termination, as well as Travers’ dispute that she violated the COBC. R.34, PageID#964-65, 972 (Travers’ opposition mem.).

C. District Court Decision

The district court concluded that Verizon was entitled to summary judgment on Travers’ claims. R.60, PageID#1380 (Mem.). The court first held there was insufficient evidence that Travers had an actual disability, stating that while she alleged there was “‘ample evidence’” of her actual disability, the evidence she presented was merely “her own conclusory statements.” R.60, PageID#1388 n.7 (Mem.). Without discussing any of those “conclusory statements,” the court added that Travers “must offer some admissible evidence that she is ‘disabled’ and some admissible evidence as to the extent of her limitations.” Id. The court made no mention of the fact that Verizon had conceded this point for purposes of summary judgment. See id.

The court next addressed Travers’ argument that Verizon had regarded her as disabled. Id. The court stated, correctly, that “some courts have failed to recognize” that “[t]hrough the 2008 amendments, Congress expressly rejected the idea that to be ‘regarded as’ having a disability, the employer must perceive the individual to be substantially limited in a major life activity.” R.60, Page ID#1388 (Mem.). The court nevertheless then concluded that Travers failed to show that Verizon “regarded her as unable to do her job or as being substantially limited in performing the tasks of a senior account representative.” R.60, PageID#1388-89 (Mem.). The court added that Travers had not argued that her failure to abide by the company’s rules was because of a disability, and had not shown that Verizon regarded her as disabled or that “anything about an alleged disability led to her firing.” R.60, PageID#1389 (Mem.). The court also pointed to Travers’ deposition statement that she had “‘no idea how they perceived me.’” R.60, PageID#1388 (Mem.).

The court further concluded that Travers had failed to establish that Verizon’s proffered reason for her termination was pretextual. R.60, PageID#1389 (Mem.) (referring to the court’s earlier pretext discussion from its analysis of Travers’ FMLA claims). The court observed that Verizon claimed that it terminated Travers because of her “repeated violations” of the COBC. R.60, PageID#1384 (Mem.). The court rejected Travers’ proffer of the June 3 Termination Request Form as evidence of pretext. R.60, PageID#1385 (Mem.). The court observed that while the June 3 form states on its face that the company decided to terminate Travers because of her attendance, the May 27 Termination Request Form states “Integrity” as the reason for Travers’ termination. Id. With this evidence, the court stated, Travers “may have created a factual issue. The inquiry does not end here, however. The factual issue must be material.” Id.

The court then discussed this Court’s rule that “[i]f the employer held an honest belief in its proffered reason, the employee cannot establish pretext.” R.60, Page ID#1385-86 (Mem.) (citing in part Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012)). The court held that Verizon “has shown that it based its decision on the particularized facts that were before it at the time,” and that Verizon “honestly believed that plaintiff had continued to waive mail-in rebates after being repeatedly disciplined for it.” R.60, PageID#1386 (Mem.). The court minimized the evidentiary value of the June 3 Termination Request Form, stating that it was not authored by a decisionmaker and the author’s characterization of the reason Travers was being terminated “is not material to this issue.” Id. The court concluded that Travers had failed to show that Verizon’s reason was a pretext for discrimination. R60, PageID#1386-87 (Mem.).

Summary of the Argument

The district court erred in concluding that Verizon was entitled to summary judgment on Travers’ claim of disability discrimination. When the court concluded that Travers failed to present sufficient evidence showing she had an actual disability, the court contravened Federal Rule of Civil Procedure 56(f) by ruling on a matter that Verizon had expressly conceded for purpose of summary judgment. As Travers was without notice that the question of her actual disability status would be considered on summary judgment, and because she suffered prejudice as a result of the court’s ruling against her on this point, the court’s action constituted reversible error. Moreover, regardless of the court’s error in addressing Travers’ actual disability status, the record contained sufficient evidence to support the conclusion that Travers’ heart condition constitutes a disability for purposes of the amended ADA.

The court also erred in its analysis of whether Travers could establish that Verizon regarded her as disabled, as defined by the ADA. Despite acknowledging that Congress had recently amended the ADA to clarify that a plaintiff need not show that her employer regarded her as being substantially limited in some major life activity, the court applied that incorrect standard to the question of whether Verizon regarded Travers as disabled.

The court further erred in concluding that Travers could not establish that Verizon’s proffered explanation for her termination was pretextual. Travers’ testimonial and documentary evidence that she was terminated due to her absences, which were caused by her heart condition, directly rebuts the company’s proffered explanation. The suspicious timing of Travers’ termination further supports Travers’ pretext claim: Verizon officials recommended her for termination the day after she passed out in the workplace parking lot because of her heart medication, and the company informed Travers of her termination the same day she returned to work from her disability-related leave. The district court also erred in misapplying this Court’s “honest belief” rule—a rule that does not apply when the plaintiff challenges, as Travers does here, the truthfulness of the employer’s explanation.

Argument

I. The district court erred in considering whether Travers was actually disabled because she was not on notice that this fact was being challenged on summary judgment.

In its opening brief on summary judgment, Verizon specifically and explicitly stated that “it assumes, arguendo, that Plaintiff will be able to create a genuine issue of fact as to the elements of her prima facie case and, therefore, does not dispute the prima facie case for the purposes of summary judgment.” R.21, PageID#479 at n.3 (Verizon’s opening brief). Nevertheless, without providing any notice to Travers of its intent to do so, the court decided sua sponte to address one unchallenged element of Travers’ prima facie case—whether she has an actual disability as defined by the ADA. R.60, PageID#1388 n.7 (Mem.). The court concluded Travers’ evidentiary showing on summary judgment on this point was lacking, composed only of “her own conclusory statements” rather than evidence going to the nature of her disability and the extent of her limitations. Id. In so ruling, the district court violated a bedrock summary judgment principle—that the nonmovant is entitled to adequate notice of the issues to be considered against her on summary judgment, so as to be provided the opportunity to fully marshal her evidence in defense.

Federal Rule of Civil Procedure 56(f) provides that courts have the power to grant summary judgment independent of a motion by a party—that is, to grant summary judgment on a basis other than one sought by the movant, or sua sponte on the court’s own initiative. However, courts may only enter summary judgment on a basis not presented by the movant “[a]fter giving notice [to the nonmovant] and a reasonable time to respond” to the court’s notice. Fed. R. Civ. P. 56(f). “[D]istrict courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); see also Fed. R. Civ. P. 56(f); Smith v. Perkins Bd. of Ed., 708 F.3d 821, 829 (6th Cir. 2013) (same).

Nevertheless, “[e]ntry of summary judgment on grounds not raised or argued by the parties is ‘discouraged.’” Smith, 708 F.3d at 829 (citing Excel Energy, Inc. v. Cannelton Sales Co., 246 F. App’x 953, 959 (6th Cir. 2007)). “‘Consistent with the importance of the procedural protection afforded by Rule 56(c), courts have strictly enforced the requirement that a party threatened by summary judgment must receive notice and an opportunity to respond,” and “[t]he mandatory character of this notice also applies to a district court’s sua sponte consideration of summary judgment.” Imaging Bus. Mach., L.L.C. v. BancTec, Inc., 459 F.3d 1186, 1191 (11th Cir. 2006) (citation omitted). To that end, a court’s grant of summary judgment on an uncontested issue without providing the nonmovant with sufficient notice of its intent to address the issue constitutes an abuse of discretion upon a showing by the nonmovant that it was prejudiced by the court’s “failure to provide an opportunity to respond with more evidence.” Smith, 708 F.3d at 828, 831.

As to notice, “‘[t]his Court looks to the totality of the proceedings below to determine whether the losing party had sufficient notice of the possibility that summary judgment could be granted against it.’” Id. (citation omitted). Travers was not on notice—by Verizon or the district court—that her actual disability status was at issue because Verizon clearly and unequivocally conceded that issue for purposes of summary judgment. In its opening brief, Verizon stated that “it assumes, arguendo, that Plaintiff will be able to create a genuine issue of fact as to the elements of her prima facie case and, therefore, does not dispute the prima facie case for the purposes of summary judgment.” R.21, PageID#479 at n.3 (Verizon’s opening brief).

Fully consistent with this concession, Verizon did not present any argument on summary judgment contesting Travers’ actual disability status. Nor did the district court suggest or otherwise inform Travers that it was independently considering whether Travers could establish that she was actually disabled.

Because Travers had no notice that she needed to come forward in response to Verizon’s motion with all of her evidence and an extensive legal argument regarding her actual disability, Travers did not do so, despite the ample record evidence that her heart condition constitutes a disability. Travers suffered prejudice as a result of the court’s sua sponte “actual disability” ruling, because it rendered her unable to establish coverage under the ADA. See Smith, 708 F.3d at 831 (prejudice where losing party can “‘demonstrate[ ] that it could have produced new favorable evidence or arguments had more notice been given’”) (citation omitted); see also Myers v. Cuyahoga County, Ohio, 182 F. App’x 510, 516-17 (6th Cir. 2006) (unpubl.) (holding that the plaintiff’s failure to present sufficient evidence to establish coverage under the ADA entitled the defendant to summary judgment). As discussed below in section II, there was sufficient evidence from which Travers “‘could have produced [a] favorable … argument[]’” had she been on notice that actual disability was at issue. Travers therefore was prejudiced, and so the district court abused its discretion with its sua sponte ruling. See Smith, 708 F.3d at 829.[3]

II. The record evidence of Travers’ disability was sufficient to withstand summary judgment as to coverage under the ADA.

There was ample evidence in the record to support a finding that Travers is disabled under the first prong of the ADA’s definition of disability. Under that prong, an individual is disabled if she has “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1) (attached at Addendum A-8). The district court, in holding Travers had not shown she has an actual disability, criticized Travers for failing to offer “admissible evidence as to the extent of her limitations,” noting that Travers’ assertion that there was “ample evidence” of actual disability was “based upon her own conclusory statements.” R.60, PageID#1388 n.7 (Mem.). The district court erred in its characterization of the evidence in the record regarding Travers’s actual disability, and whether that evidence was sufficient to support this element of her claim.

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”) (attached at Addendum A-1); see also Bailey v. Real Time Staffing Servs., Inc., No. 13-5221, 2013 WL 5811647, at *2 (6th Cir. Oct. 29, 2013) (unpubl.) (same). To that end, Congress intended the amended ADA 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.” ADAAA, at § 2(a)(1) (attached at Addendum A-1). In relevant part, Congress intended to “convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Id. at § 2(b)(5) (attached at Addendum A-2). Congress “reject[ed] the standards created by the Supreme Court . . . [establishing] that the terms ‘substantially’ and ‘major’ in the definition of disability under the ADA ‘need to be interpreted strictly to create a demanding standard for qualifying as disabled.’” Id. at § 2(b)(4) (attached at Addendum A-2).

Accordingly, the ADAAA provides that “the definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter,” and “the term ‘substantially limits shall be interpreted consistently with the findings and purposes of the [ADAAA].” 42 U.S.C. § 12102(4)(A), (B) (attached at Addendum A-8, A-9).

The ADA has retained the same original definition of “disability” under the first prong, see id. at § 12102(1) (attached at Addendum A-8), but now clarifies that for purposes of considering actual impairments, “a major life activity . . . includes the operation of a major bodily function, including but not limited to . . . circulatory” functions, id. at

§ 12102(2)(B) (attached at Addendum A-8). See also 29 C.F.R.

§ 1630.2(h)(1) (defining impairment to include “[a]ny physiological condition or disorder . . . affecting one or more body systems, such as . . . cardiovascular.”) (attached at Addendum A-12).[4] The operation of a major bodily function includes “the operation of a single organ within a body function.” 29 C.F.R. § 1630.2(h)(2)(i)(1)(ii) (attached at Addendum A-12). Furthermore, “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as . . . medication,” 42 U.S.C. § 12102(4)(E)(i)(I) (attached at Addendum A-9), though “the non-ameliorative effects of mitigating measures, such as negative side effects of medication . . . may be considered.” 29 C.F.R. § 1630.2(j)(4)(ii) (attached at Addendum A-14).

Given this broad standard for coverage, the evidence regarding Travers’ heart condition is more than adequate to support a finding that she has an actual disability—a physical impairment that substantially limited the operation of her heart and circulatory system. Since at least March 2010, Travers has suffered from damage to the left ventricle of her heart, as a consequence of a viral infection. R.29-1, PageID#559, 579-80 (Travers dep.). Prior to being prescribed medication for her heart condition, Travers suffered heart palpitations, dizziness, rapid heartbeat, and shortness of breath. R.29-3, PageID#654 (MetLife claim chart). Travers had difficulty speaking for long periods of time, and working was difficult for her. Id. The damage to Travers’ heart is permanent, and requires her to take medication for the rest of her life in order to control her heart palpitations. R.29-1, PageID#559, 602 (Travers dep.).

Discounting, as the statute requires, the ameliorative effect of Travers’ medication, this evidence shows that Travers’ damaged heart is a physical impairment that imposes a substantial limitation on the ability of her circulatory system, and her heart itself, to function properly. See 42 U.S.C. § 12102 (attached at Addendum A-8). The district court therefore erred in holding, on summary judgment, that Travers is not actually disabled.

III. The district court incorrectly analyzed the question of whether Verizon regarded Travers as disabled by applying a legal standard inconsistent with the ADAAA.

The ADA defines “disability” to include being “regarded as” having a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(1)(C) (attached at Addendum A-8). However, the ADAAA substantially altered the standard by which this aspect of ADA coverage is analyzed. As amended, the statute now provides that an individual meets the requirement of being regarded as having such an impairment “if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Id. at § 12102(3)(A) (attached at Addendum A-8).

By its plain terms, the statute as amended takes the emphasis in the regarded-as analysis away from the level of impairment that the individual experiences, or that the employer believes the individual to experience. Instead, the focus is on whether or not the employer took action against the individual because of an actual or perceived impairment, “whether or not the impairment limits or is perceived to limit a major life activity.” Id. (emphasis added) (attached at Addendum A-8). This standard is in stark contrast to the standard prior to the ADAAA, where the focus of the inquiry was on whether the employer perceived the individual to have a substantially limiting impairment. See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999) (individuals may fall within the statutory definition for regarded-as coverage if “(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.”). With the ADAAA, Congress expressly rejected this approach. See ADAAA, at § 2(b)(3) (“[R]eject[ing] the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the [regarded-as] prong of the definition of disability.”) (attached at Addendum A-2).

The district court correctly identified, but then, inexplicably, did not apply, the ADAAA’s standard for establishing coverage under the regarded-as prong. See R.60, Page ID#1388-89 (Mem.). The district court focused on the level of Travers’ perceived impairment, ruling that she failed to show that Verizon “regarded [Travers] as unable to do her job or as being substantially limited in performing the tasks of a senior customer service representative.”[5] R.60, Page ID#1389 (Mem.). The court did not analyze whether Verizon had taken a prohibited action against Travers “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (attached at Addendum A-8).

Accordingly, in failing to assess Travers’ regarded-as claim under the proper post-amendment ADA standard and instead focusing on whether Verizon perceived Travers to have a substantially limiting impairment, rather than whether Verizon took prohibited action against her regardless of the level of limitation it perceived her to experience, the court erred as a matter of law.[6]

IV. Travers’ evidence contradicting Verizon’s asserted reason for her termination is sufficient to create a fact question as to pretext.

Verizon asserted on summary judgment that it terminated Travers’ employment because she violated the company’s COBC, and that her attendance played no role in its decisionmaking process. See R.21, PageID#479-80 (Verizon’s opening brief); R.36, PageID#976 (Verizon’s reply brief). Travers, however, presented testimonial and documentary evidence that her disability-related absences were the real reason that Verizon terminated her employment. See supra, at 4-7. Travers also presented evidence showing the close proximity in time between her disability-related leave and her termination, suggesting a connection between the two events. Accordingly, Travers presented sufficient evidence to survive summary judgment as to pretext, and the district court’s conclusion to the contrary is incorrect.

Under the familiar burden-shifting method of proof for discrimination cases first set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), once the plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the contested action. Serrano v. Cintas Corp., 699 F.3d 884, 892-93 (6th Cir. 2012). “‘[I]f the defendant succeeds in this task, the burden shifts back to the plaintiff to show that the defendant’s proffered reason was not its true reason, but merely a pretext for discrimination.’” Id. at 893 (citation omitted).

This Court has recognized that to establish pretext under the McDonnell-Douglas framework, the plaintiff must present evidence “showing that the employer’s proffered reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012) (citation omitted). Of particular importance here, the plaintiff can satisfy its burden to prove pretext with “sufficient evidence to find that the defendant’s asserted justification is false,” as “the factfinder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). Fully consistent with Reeves, under this second method of proof, “the plaintiff attempts to indict the credibility of his employer’s explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (emphasis in original), overruled on other grounds, Geiger v. Tower Auto., 579 F.3d 614 (6th Cir. 2009).

Travers’ evidence that Verizon terminated her because she took leave related to her heart condition, and not because of her purported violations of the COBC, is more than sufficient to support the conclusion that Verizon’s proffered reason did not actually motivate its action. First, Travers testified that the only explanation Verizon gave her upon her termination was that she had “missed a lot of work, and we need you here.” R.29-1, PageID#558-59, 598 (Travers dep.). Verizon made no mention of any COBC violations. Id.

Second, Travers presented the June 3 “for HR Executive Use Only” Termination Request Form, in which Verizon states that Travers was being terminated because of her attendance, and which makes no mention of any other possible reason for her termination. R.53-1, PageID#1348 (June 3 termination form). This evidence directly contradicts Verizon’s claim that Travers was terminated for violating the COBC, and, when viewed in the light most favorable to Travers as nonmovant on summary judgment, see, e.g., EEOC v. United Parcel Serv., Inc., 249 F.3d 557, 561 (6th Cir. 2001), constitutes sufficient evidence to establish pretext and thereby survive summary judgment.

While the district court recognized that the June 3 Termination Request Form created a factual issue as to pretext, the court rejected the issue as immaterial based on its interpretation of Seeger. R.60, PageID#1385-86 (Mem.) (citing Seeger, 681 F.3d at 285). However, the court misapplied Seeger in the context of this case.

In Seeger, this Court addressed a claim of pretext advanced using this Court’s “first” method of proof—that the employer’s proffered reason for its action has no basis in fact. 681 F.3d at 285. “‘Under [this] rule, an employer’s proffered reason is considered honestly held where the employer can establish it reasonably reli[ed] on particularized facts that were before it at the time the decision was made. Thereafter, the burden is on the plaintiff to demonstrate that the employer’s belief was not honestly held.’” Id. (citation omitted).

In this case, the district court stated as a general matter that “[w]here the employer can demonstrate an honest belief in its proffered reason, the inference of pretext is not warranted.” R.60, PageID#1385 (Mem.). Invoking this principle, the court the held that Verizon “has shown that it based its decision on the particularized facts that were before it at the time.” R.60, PageID#1385-86 (Mem.).

There are two fundamental errors in the district court’s application of this principle here. First, the honest belief rule applies to pretext arguments premised on this Court’s “first” theory of pretext—that there is no factual basis supporting the employer’s decisionmaking process. Seeger, 681 F.3d at 285; see also Manzer, 29 F.3d at 1084 (“The first type of [pretext] showing is easily recognizable and consists of evidence that the proffered bases for the plaintiff’s discharge never happened, i.e., that they are ‘factually false.’”) (citation omitted). The rule does not apply in the context of pretext arguments, such as Travers’, premised on the “second” theory—that the employer’s proffered reason did not actually motivate its conduct. As this Court stated in Manzer, the “second” method of proving pretext “is of an entirely differ ilk” than the “first” method. 29 F.3d at 1084. As a predicate to analyzing a claim of pretext under the “second” approach, the court presumes that there is no dispute as to the factual basis supporting the employer’s proffered reason for its action. See id. (under the second approach to showing pretext, “the plaintiff admits the factual basis underlying the employer’s proffered conduct and further admits that such conduct could motivate dismissal”) (emphasis in original). Therefore, the honest belief rule, which is a defense to a challenge to the factual correctness, but not the veracity, of the employer’s claimed motivation, has no application to Travers’ pretext argument that her asserted violations of the COBC was not Verizon’s true motivation for her termination—an argument that falls squarely under this Court’s “second” pretext approach.

Second, in “finding” Verizon’s explanation to be true, R.60, PageID#1386-87 (Mem.), and rejecting Travers’ contrary evidence, the district court violated basic summary judgment principles by making credibility determinations and factual findings. It is well settled that on summary judgment, the district court “must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves, 530 U.S. at 150; see also Hamilton v. Gen. Elec. Co., 556 F.3d 428, 437 (6th Cir. 2009) (same). By “find[ing]” that Verizon’s explanation for its motive was to be believed—that the company acted based on its “honest[] belie[f]” of COBC violations, R.60, PageID#1386 (Mem.), and not on the basis of Travers’ disability-related absences—the district court took on the role of finder of fact, impermissibly making credibility determinations and resolving contested factual issues in favor of the nonmovant.

The court also erred by crediting the testimony of Schreba Haynes, the author of the June 3 Termination Request Form, who stated via declaration that when she listed attendance as the reason Travers was being recommended for termination, she simply “made a mistake.” R.56-1, PageID#1362 (Haynes decl.); R.60, PageID#1385 (Mem.). Given Travers’ testimony that her attendance was the sole reason offered by Verizon officials at the time of her termination, R.29-1, PageID#558-59, 598 (Travers dep.), the court erred in crediting this disputed fact in favor of Verizon on summary judgment. See Pachla v. Saunders Sys., Inc., 899 F.2d 496, 499 (6th Cir. 1990) (“Where the employer alleges that the employee was discharged for one reason . . . and the employee presents evidence that he was really discharged for another reason . . . the question . . . is one of fact for the jury. The jury is always permitted to determine the employer’s true reason for discharging the employee.”) (citation omitted).

Travers’ pretext argument is further bolstered by the timing of local management’s decision to forward the two Termination Request Forms to Wright, the HR area director, and the timing of her subsequent termination. This Court has recognized that “‘suspicious timing is a strong indicator of pretext when accompanied by some other, independent evidence.’” Seeger, 681 F.3d at 285 (citation omitted). Here, the timing of Travers’ termination—on the first day she returned from taking leave after passing out in Verizon’s parking lot because of a reaction to her heart medication, R.29-1, PageID#558, 585-86 (Travers dep.); R.29-10, PageID#858 (Travers’ work calendar)—is certainly suspicious, and suggests that Verizon’s concerns stemmed from Travers’ need to take leave on account of her heart condition.

Furthermore, Travers’ local HR personnel contacted Wright on June 3, the very next day after Travers passed out in the parking lot. R.29-1, PageID#585-86 (Travers dep.); R.56-2, PageID#1363 (Wright decl.). Also on June 3, the local HR personnel drafted the “for HR Executive Use Only” Termination Request Form seeking permission to terminate Travers because of “attendance.” R.53-1, PageID#1348 (June 3 termination form). This evidence of the suspicious timing of Verizon’s decision to terminate Travers’ employment suggests that Verizon’s true motive was not Travers’ purported COBC violations, particularly when viewed in light of Travers’ other evidence of pretext.

Further indicating the suspicious nature of the timing of Travers’ termination is Verizon’s claim that the “triggering event” for its decision to terminate Travers because of her purported COBC violations took place on April 21, 2010. See R.29-3, PageID#646 (May 27 termination form). However, Verizon waited to draft a termination request form related to that event for over a month. Id. In stark contrast, Verizon promptly drafted the “attendance” termination request form, and emailed both termination request forms to Wright, the very day after she suffered a heart-condition-related event at the workplace. R.29-1, PageID#585-86 (Travers dep.); R.53-1, PageID#1348 (June 3, 2010, termination form); R.56-2, PageID#1363 (Wright decl.). This evidence of suspicious timing behind the actions Verizon took toward, and in, terminating Travers, combined with Travers’ testimonial and other evidence that Verizon’s actual motivation for her termination was the effect of her heart condition on her attendance, constitutes strong evidence rebutting as pretextual Verizon’s claimed reason for her termination.

Conclusion

The Commission respectfully requests that the Court reverse the district court’s grant of summary judgment and remand the matter for trial.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

/s/ James M. Tucker

JAMES M. TUCKER

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

E-mail: James.Tucker@EEOC.gov

Attorneys for amicus curiae

U.S. Equal Employment

Opportunity Commission

[1] Verizon disclosed the May 27 Termination Request Form during discovery, but did not disclose the June 3 Termination Request Form until after the parties had completed summary judgment briefing, and pursuant to the court’s order granting Travers’ motion to compel production. R.53, PageID#1344 (Travers’ supplemental summary judgment brief). Thereafter, Verizon submitted a declaration from Wright, who stated that she received both termination request forms on June 3, that she “did not recall” reviewing the June 3 “for HR Executive Director Use Only” document, and that she based her approval of Travers’ termination on her review of the May 27 document. R.56-2, Page ID#1363-64 (Wright decl.). Verizon also submitted a declaration by Schrema Haynes, a Human Resources Consultant for Verizon, who stated that she authored the June 3 form and “mistakenly” listed attendance, instead of integrity, as the reason for Travers’ termination. R.56-1, PageID#1362 (Haynes decl.).

[2] Travers described Gibson’s June 21 statement during her deposition on April 2, 2013, five months before the court granted Travers’ motion to compel production, which led to Verizon’s subsequent disclosure of the June 3 Termination Request Form indicating “attendance” as the reason Travers was being recommended for termination. See R.51, PageID#1339 (order); R.53, Page ID#1344 (Travers’ supplemental brief on summary judgment).

[3] Although this Court could remand the case to the district court “‘to provide the district court the opportunity to review all of the evidence before making a substantive decision,’” Smith, 708 F.3d at 828, a remand is unnecessary given the considerable evidence of Travers’ actual disability that is already in the record. See infra, at 18-23.

[4] Congress authorized the Commission to issue regulations “implementing the definitions of disability in section 12102 of this title (including rules of construction) . . . consistent with the [ADAAA].” 42 U.S.C. § 12205a (attached at Addendum A-10); see also Summers v. Altarium Inst., Corp., No. 13-1645, 2014 WL 243425, at *5 (4th Cir. Jan. 23, 2014) (affording Chevron deference to the Commission’s post-ADAAA regulations regarding the definition of disability).

[5] On summary judgment, Verizon made no mention of the proper regarded-as standard under the statute as amended, instead arguing based on the pre-amendment standard rejected by Congress. R.21, PageID#478-79 (Verizon’s opening brief) (citing Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1106 (6th Cir. 2001), for the proposition that “Plaintiff has to show either (1) that Verizon Wireless mistakenly believed she had a limiting impairment when in fact she did not . . . or (2) that Verizon Wireless believed she had a limiting impairment when that impairment, in fact, was not so limiting”); see also R.36, PageID#979 (Verizon’s reply brief) (same). Travers, however, did identify the correct post-amendment standard for regarded-as coverage. See R.34, PageID#971 (Travers’ response brief).

[6] This Court need not decide the question of whether there was sufficient evidence to support a regarded-as theory of coverage, given Verizon’s concession of Travers’ prima facie case on summary judgment, as well as the ample record evidence that she has an actual disability.