TABLE OF AUTHORITIES

CASES Page(s)

Angell v. Fairmount Fire Prot. Dist.,

907 F.Supp.2d 1249 (D. Colo. 2012),

aff’d, 550 F. App’x 596 (10th Cir. 2013).................................... 12

Brandon v. O’Mara,

2011 WL 4478492 (S.D.N.Y. September 28, 2011)..................... 12

Casseus v. Verizon N.Y., Inc.,

722 F. Supp. 2d 326 (E.D.N.Y. 2010) ....................................... 11

Chalfont v. U.S. Electrodes,

2010 WL 5341846 (E.D. Pa. December 28, 2010) ..................... 13

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984)...................................................................... 9

Davis v. Vermont, Dept. of Corrections,

868 F. Supp. 2d 313 (D.Vt. 2012) ........................................ 14,15

EEOC v. Midwest Regional Medical Center, LLC,

2014 WL 4063145 (W.D. Okla. August 18, 2014) ..................... 12

EEOC v. Midwest Regional Medical Center, LLC,

2014 WL 3881418 (W.D. Okla. August 7, 2014) ....................... 15

EEOC v. Staffmark Investment LLC,

67 F. Supp. 3d 885 (N.D. Ill. 2014) .......................................... 17

Hoffman v. Carefirst of Fort Wayne, Inc.,

737 F.Supp.2d 976 (N.D. Ind. 2010) .................................... 11,12

Katz v. Adecco USA, Inc.,

845 F.Supp.2d 539 (S.D.N.Y. 2012) ......................................... 12

Norton v. Assisted Living Concepts, Inc.,

786 F.Supp.2d 1173 (E.D. Tex. 2011) ....................................... 12

Rodriguez v. Verizon Telecom,

2014 WL 6807834 (S.D.N.Y. December 3, 2014) ...................... 16

Sealed Plaintiff v. Sealed Defendant,

537 F.3d 185 (2d Cir. 2008) ....................................................... 11

Showers v. Endoscopy Center of Central Pennsylvania, LLC,

58 F. Supp. 3d 446 (M.D. Pa. 2014) .......................................... 12

Summers v. Altarum Institute,

740 F.3d 325 (4th Cir. 2014)........................................................ 9

Sutton v. United Air Lines, Inc.,

527 U.S. 471(1999) ................................................................... 7,8

Toyota Motor Mfg. v. Williams,

534 U.S. 184 (2002)................................................................ 6,7,9

Unuangst v. Dual Temp Co., Inc.,

2012 WL 931130 (E.D. Pa. March 19, 2012) ............................. 13

Wade v. New York City Dep’t of Educ.,

2014 WL 941754 (S.D.N.Y. March 10, 2014).............................. 1

STATUTES

Title I of the Americans with Disabilities Act,

as amended, Pub. L. No. 110-325, 122 Stat. 3553,

codified at 42 U.S.C. § 12101 et seq. ....................................... passim

42 U.S.C. § 12101 note (a)(5) ......................................................... 10

42 U.S.C. § 12101 note (a)(7) ......................................................... 10

42 U.S.C. § 12101 note (b)(3) ......................................................... 16

42 U.S.C. § 12101 note (b)(4) ...................................................... 8,10

42 U.S.C. § 12101 note (b)(5) ................................................. 8,10,14

42 U.S.C. § 12102(1) ...................................................................... 10

42 U.S.C. § 12102(1)(A) ................................................................. 11

42 U.S.C. § 12102(1)(B) ................................................................. 14

42 U.S.C. § 12102(1)(C) ................................................................. 15

42 U.S.C. § 12102(2) ........................................................................ 7

42 U.S.C. § 12102(2)(B) .............................................................. 8,10

42 U.S.C. § 12102(3) ...................................................................... 16

42 U.S.C. § 12102(3)(A) ................................................................. 15

42 U.S.C. § 12102(3)(B) ................................................................. 16

42 U.S.C. § 12102(4) ...................................................................... 10

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

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

42 U.S.C. § 12102(4)(C) ................................................................. 11

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

42 U.S.C. § 12112(a) ........................................................................ 7

42 U.S.C. § 12205a............................................................................ 9

REGULATIONS

29 C.F.R. § 1630.2(g)(2) ...................................................................... 10

29 C.F.R. § 1630.2(i)(1)(ii) ..................................................................... 9

29 C.F.R. § 1630.2(i)(2) ...................................................................... 8,9

29 C.F.R. § 1630.2(j)(1)(i) ...................................................................... 9

29 C.F.R. § 1630.2(j)(1)(vii) .............................................................. 9,11

29 C.F.R. § 1630.2(j)(3)(ii) .............................................................. 10,11

29 C.F.R. § 1630.2(j)(3)(iii) ............................................................. 10,14

29 C.F.R. § 1630.2(k)(1) ...................................................................... 14

29 C.F.R. Pt. 1630, App. § 1630.2(k) .................................................. 14

29 C.F.R. Pt. 1630, App. § 1630.2(l) ................................................... 16

RULES

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

OTHER AUTHORITY

A. Brewster at al., “Residual Risk of Breast Cancer Recurrence 5 Years

After Adjuvant Therapy,” 100 J. Nat’l Cancer Inst. (2008) ....... 13

L. Natarajan et al., “Time-Varying Effects of Prognostic Factors

Associated with Disease-Free Survival in Breast Cancer,”

169 Am. J. Epidemiol. (2009) .................................................... 13

I. Sestak et al., “Factors Predicting Late Recurrence for Estrogen

Receptor-Positive Breast Cancer,”

105 J. Nat’l Cancer Inst. (2013).................................................. 13

STATEMENT OF INTEREST

The 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 (“ADA”), as amended, 42 U.S.C. §§ 12101 et seq. As a federal agency, the Commission is authorized to participate as amicus curiae in the federal courts of appeals. Fed. R. App. P. 29(a). This appeal raises important questions about the proper interpretation of the 2008 amendments to the ADA. ADA Amendments Act (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008). The district court noted the existence of the ADAAA but failed to appreciate the significant alterations the amendments made to the statute’s definition of disability. Because there is evidence that Wade was actually disabled and has a record of disability, and the district court’s own statements indicate there is some evidence the employer regarded her as disabled, the district court’s ruling that Wade was not covered under the amended ADA was erroneous. Wade v. New York City Dep’t of Educ., 2014 WL 941754 (S.D.N.Y. March 10, 2014). The proper interpretation of the amended ADA’s definition of disability is a recurring issue of critical importance to securing the rights of individuals with disabilities. Therefore, the Commission respectfully offers its views as amicus curiae.

STATEMENT OF THE ISSUE[1]

Whether the district court erred in ruling at summary judgment that Wade was not covered under the amended ADA, where there is evidence that Wade was actually disabled and has a record of disability and the district court’s own statements indicate there was some evidence that the employer regarded her as disabled.

STATEMENT OF THE CASE

1. Statement of Facts.

On August 31, 2007, the New York City Department of Education (“DOE”) hired Jacqueline Wade as a probationary drama teacher at I.S. 109, a middle school in Queens. District Court Docket Number (“R”) 72 at 2. Wade had worked in a variety of capacities in the theater (id. at 2) and, during the early 2000s, she taught drama at several New York City schools. R.61-1 at 12-13; R.61-8. Miatheresa Pate-Alexander was I.S. 109’s principal (R.72 at 2); this was her first assignment as a school principal. R.61-1 at 15.

Issues arose between Wade and Pate-Alexander early in Wade’s employment. Wade had difficulty getting health insurance during her first months of employment. R.72 at 2. She informed Pate-Alexander of the problem and explained that she needed health insurance because she was a cancer patient. Id. Wade was diagnosed with breast cancer and had a left mastectomy in 1989, received treatment with systemic chemotherapy in 1989-90, and continues to receive follow up care with an oncologist at Memorial Sloan-Kettering Cancer Center. R.61-14. Wade testified that her cancer diagnosis made Pate-Alexander uncomfortable. R.72 at 7. Wade also testified that Pate-Alexander initially seemed helpful, but after she disclosed her cancer, Pate-Alexander began to consider her a liability because of fears of future absences. Id. at 2, 6. Wade testified that Pate-Alexander held a faculty meeting at which she told teachers they should not take sick days because, due to a budget deficit she inherited at I.S. 109, she could not afford to hire substitute teachers. Id. at 5, 6. Wade also testified that Pate-Alexander was very tough on teachers with medical conditions (id. at 5) and biased against teachers with disabilities. Id. at 6-7. In November 2007, Wade was enrolled, retroactively, in the DOE’s health program. Id. at 2.

Wade testified that she had an unusually large and difficult class load. R.72 at 5. She also lacked support as a drama teacher. Id. Wade also testified about the generally unpleasant, unsupportive, and hostile atmosphere at the school, pointing mainly to the behavior of students who were violent and intimidating. Id. Wade believed that Pate-Alexander was unable to control these students. Id.

On Friday, January 11, 2008, an episode occurred in one of Wade’s classes, which she memorialized in a memorandum that she distributed to school officials. R.61-5. According to Wade, the students were very loud when they arrived for her third period drama class. Id. She quieted most of the students down and began teaching, but some students continued to talk and disrupt the class. Id. Several students were very disrespectful to her. Id. One student (student A) in particular was especially verbally abusive—swearing at her, calling her names, and belittling her—and some others followed his lead. Id.; R.72 at 2.

School officials received Wade’s memorandum on Monday, January 14, and, at Pate-Alexander’s direction, assistant principal Karleen Comrie began investigating what happened. R.72 at 2-3. Comrie obtained written statements from 14 (of the 29) students (R.61-12 at 2) who were in Wade’s class. R.72 at 2-3; R.61-11, R.61-12. Students reported that Wade said “fuck you” to student A, shook her breasts in his face, and made other inappropriate comments to him. R.72 at 3. Wade disputed the students’ statements. Id. She testified that she believed the students conspired to get her fired (because she called their parents, among other things), they made up the events in their statements in order to do so, and they even called her home to brag about having done so. Id. On January 16, student B reported that Wade attempted to coerce him into writing a statement supporting Wade’s account of events on January 11. Id. Wade also disputed this report. Id.

Comrie made a report of these events, and her report was referred for investigation to the DOE’s Office of Special Investigations (“OSI”). R.72 at 3. On January 31, 2008, Wade was transferred (with full benefits and salary) to a “reassignment center” pending the resolution of the investigation. Id. The OSI investigated and, on October 10, 2008, issued a report that substantiated the allegations of both students A and B. Id. The OSI report recommended that the superintendent take appropriate disciplinary actions regarding Wade’s conduct. Id.; R.61-11.

On March 30, 2009, Pate-Alexander met with Wade and her union representative for a disciplinary conference. R.72 at 4. Pate-Alexander gave Wade an “unsatisfactory” performance evaluation for the year and recommended that her employment be terminated. Id.; R.61-4 at 4-5. On April 27, the superintendent notified Wade that he would review Pate-Alexander’s recommendation and consider her termination. R.72 at 4; R.61-10 at 9; see also R.61-10 at 2-7 (Wade’s May 19th correspondence with superintendent). On May 27, 2009, Wade was dismissed. R.72 at 4; R.61-10 at 11.

Acting pro se, Wade sued the DOE and the City of New York, asserting various claims of employment discrimination, including termination on the basis of disability under the ADA. R.72 at 1; R.2 at 3. The DOE and the City moved for summary judgment on all claims. R.72 at 1; R.49.

2. District Court Decision.

This district court dismissed all claims against the City as an improper defendant, and any claims against the DOE that arose before Wade’s termination on timeliness grounds. R.72 at 8-9. The court granted summary judgment to the DOE on Wade’s Title VII and ADEA claims challenging her termination. Id. at 12-17.

The district court also granted summary judgment to the DOE on Wade’s ADA termination claim. At the outset, the court noted that Wade’s “testimony is strongest in raising an inference of consistent discrimination against individuals with disability at I.S. 109.” Id. at 18. The court then stated, however, that Wade cannot establish she has a disability “[b]ecause cancer, without more, does not qualify as a disability under the ADA,” id., and Wade failed to provide evidence that “she ha[s], has a record of having, or was regarded as having[] a permanent or lasting disability that ‘substantially limits’ a ‘major life activity.’” Id. at 19 (citing Toyota Motor Mfg. v. Williams, 534 U.S. 184, 196 (2002), and noting that Toyota was superseded by the ADAAA “on other grounds.”). The court stressed that although Wade testified that “her cancer made Principal Pate-Alexander uncomfortable,” Wade “put forward no evidence of any restriction to any major life activity.” R.72 at 19. The court concluded that, “[a]ssuming arguendo Wade could establish she did have a disability, DOE offered nondiscriminatory reasons for Wade’s discharge, and Wade offered no evidence of pretext.” Id.

ARGUMENT

The district court erred by relying on pre-ADAAA law governing ADA coverage.

As originally enacted in 1990, the ADA prohibited employers from discriminating against a “qualified individual with a disability” because of that individual’s disability. 42 U.S.C. § 12112(a). The term “disability” was defined to mean: “[1] a physical or mental impairment that substantially limits one or more of the major life activities of such individual, [2] a record of such an impairment, or [3] being regarded as having such an impairment.” Id. § 12102(2). Over the next two decades, the courts increasingly came to interpret the ADA in unduly restrictive ways. For example, courts defined many people out of statutory coverage by imposing stringent requirements for individuals to show that they were “substantially limited” in a “major life activity.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196-98 (2002). Even when an individual’s impairment was admittedly the basis for an employment decision, courts required plaintiffs who sought coverage based on the “regarded as” prong of the disability definition to prove the employer’s perception of their limitations. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-91 (1999). As a result, courts often did not reach the question of whether an employer’s conduct was discriminatory.

In enacting the ADAAA in 2008 (Pub. L. No. 110-325, 122 Stat. 3553), Congress stated that the Supreme Court’s interpretation of the terms “major [life activities]” and “substantially limits” had “created an inappropriately high level of limitation necessary to obtain coverage under the ADA,” and it was amending the ADA because “the primary object of attention in cases brought under the ADA should be whether entities covered by the ADA have complied with their obligations[.]” 42 U.S.C. § 12101 note (b)(4) & (b)(5). The ADA now provides that the term “major life activities” includes the “operation of a major bodily function,” such as “normal cell growth.” 42 U.S.C. § 12102(2)(B). The ADA also now provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter” (42 U.S.C. § 12102(4)(A)); the phrase “substantially limits” “shall be interpreted consistently with the findings and purposes of the [ADAAA]” (42 U.S.C. § 12102(4)(B)); and “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active” (42 U.S.C. § 12102(4)(D)).

The Commission’s regulations implementing the ADAAA similarly make clear that the coverage standards are “not … demanding.” 29 C.F.R. § 1630.2(i)(2); see also 29 C.F.R. § 1630.2(j)(1)(i) (the phrase “substantially limits” is to be “construed broadly in terms of extensive coverage”); 29 C.F.R. § 1630.2(i)(1)(ii) (“major life activities” include “operation of a major bodily function, including … normal cell growth”); 29 C.F.R. § 1630.2(j)(1)(vii) (an “impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active”). The EEOC’s ADAAA regulations, issued pursuant to statutory authority (see 42 U.S.C. § 12205a), are entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Summers v. Altarum Institute, 740 F.3d 325, 331-32 (4th Cir. 2014).

The district court in this case improperly analyzed the issue of coverage under the ADAAA by ruling that Wade did not have a disability when she was fired in May 2009. Although the court acknowledged that the ADAAA applies to Wade’s disability-based termination claim, it did not evaluate the claim under ADAAA standards. The court erred in ruling that Wade cannot establish she has a disability because “cancer, without more, does not qualify as a disability under the ADA” (R.72 at 18), and that Wade failed to provide evidence that she has, has a record of having, or was regarded as having “a permanent or lasting disability that ‘substantially limits’ a ‘major life activity’” (id. at 19, citing Toyota Motor, 534 U.S. at 196). Importantly, the district court failed to recognize that Congress directly rejected the Toyota Motor Court’s interpretation of both “major life activities” and “substantially limited” under the ADAAA. See 42 U.S.C. § 12101 note (a)(5) & (7), (b)(4) & (5).

While an individual need only establish ADA coverage under one prong of the definition of “disability,” 42 U.S.C. § 12102(1) & (4); see also 29 C.F.R. § 1630.2(g)(2) (an individual “may establish coverage under any one or more of the[] three prongs of the definition of disability”), the Commission addresses all three prongs here because the district court made errors in its analysis of each.

I. “Actual disability”

Wade’s evidence established that she has an “actual disability” under the ADAAA. Wade was diagnosed with breast cancer and underwent a mastectomy in 1989, received treatment with systemic chemotherapy in 1989-90, and continues to receive follow-up care with an oncologist at Memorial Sloan-Kettering Cancer Center. R.61-14. The ADAAA provides that major life activities include “the operation of a major bodily function, including … normal cell growth.” 42 U.S.C. § 12102(2)(B). Wade’s breast cancer impaired her major life activity of normal cell growth. See 29 C.F.R. § 1630.2(j)(3)(ii)-(iii) (cancer will “virtually always” be a qualifying disability because “it should easily be concluded that ... cancer substantially limits [the major life activity of] normal cell growth”).[2]

Moreover, even if Wade’s cancer was in remission when she was fired, the court still should have deemed her covered under the actual disability prong of the definition of disability. Under the amended ADA, “an impairment that is … in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(C) (2009); see also 29 C.F.R. § 1630.2(j)(1)(vii) (same). Cf. Casseus v. Verizon N.Y., Inc., 722 F. Supp. 2d 326, 348 n. 17 (E.D.N.Y. 2010) (explaining that pre-ADAAA a person was not substantially limited in a life activity where impairments were intermittent, but noting that the ADA amendments “modified” this provision).

Post-ADAAA, most courts to have reached this issue have concluded that an individual with cancer, even in remission, establishes coverage under the actual disability prong, 42 U.S.C. § 12102(1)(A). See Hoffman v. Carefirst of Fort Wayne, Inc., 737 F. Supp. 2d 976, 984-86 (N.D. Ind. 2010) (holding that cancer in remission constitutes disability based upon the “clear language” of statute); Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173, 1184-86 (E.D. Tex. 2011) (holding that renal cancer in remission is properly classified as actual disability under amended ADA); Katz v. Adecco USA, Inc., 845 F. Supp. 2d 539, 548 (S.D.N.Y. 2012) (holding plaintiff with breast cancer in remission was covered under ADA because, as “a result of the amendments to the ADA, it appears not to matter that [the plaintiff’s] cancer was in remission at the time of the alleged discrimination”);[3] Angell v. Fairmount Fire Prot. Dist., 907 F. Supp. 2d 1249, 1250-51 (D. Colo. 2012) (holding plaintiff with cancer in remission covered based on ADAAA and EEOC regulations), aff’d, 550 F. App’x 596, 600 & n.2 (10th Cir. 2013); Showers v. Endoscopy Center of Central Pennsylvania, LLC, 58 F. Supp. 3d 446, 461-62 (M.D. Pa. 2014) (holding plaintiff whose colon cancer was in remission when she was fired is covered under the ADAAA because her cancer could substantially limit major life activities when active); EEOC v. Midwest Regional Medical Center, LLC, 2014 WL 4063145, at *4 (W.D. Okla. August 18, 2014) (holding that Withers’ skin cancer, when active, substantially limited her normal cell growth, thus making her an individual with a disability as defined by the amended ADA); Unuangst v. Dual Temp Co., Inc., 2012 WL 931130 at *4 (E.D. Pa. March 19, 2012) (holding “it is likely that Plaintiff’s cancer [non-Hodgkins lymphoma], while in remission at the time of the alleged adverse employment actions, would substantially limit a major life activity when active”); Chalfont v. U.S. Electrodes, 2010 WL 5341846 (E.D. Pa. December 28, 2010) (holding that employee with leukemia, heart disease, and remissive cancer had plausible claim of disability under the ADA as amended because his maladies substantially limited normal cell growth and circulatory functions, both of which are major life activities under the amended Act).[4]

Under the ADAAA, the focus should not be on the odds that Wade’s cancer will recur or whether she has any remaining cancer cells but, instead, because of the nature of cancer (i.e., “cancer substantially limits normal cell growth,” 29 C.F.R. § 1630.2(j)(3)(iii)), “the primary object of attention in cases brought under the ADA should be on whether entities covered under the ADA have complied with their obligations ….” 42 U.S.C. § 12101 note (b)(5). For all these reasons, the district court erred when it ruled that “cancer, without more, does not qualify as a disability” (R.72 at 18), and, under the proper analysis, the court should have concluded that Wade was an individual with an “actual disability” due to her breast cancer, even if it was in remission when she was fired.

II. “Record of” disability

Wade’s evidence also established that she has a “record of” disability under the ADAAA. The ADA provides that an individual with a record of an impairment that substantially limits or limited a major life activity is an individual with a disability. 42 U.S.C. § 12102(1)(B). In general, “[a]n individual has a record of a disability if the individual has a history of … a mental or physical impairment that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k)(1). The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability. See EEOC Interpretive Guidance on ADAAA, 29 C.F.R. Pt. 1630, App. § 1630.2(k); see also Davis v. Vermont, Dept. of Corrections, 868 F. Supp. 2d 313, 326 (D.Vt. 2012) (quoting EEOC regulations and guidance). Thus, evidence that an individual has a past history of an impairment that substantially limited a major life activity is all that is necessary to establish coverage under the second prong. Id. See EEOC v. Midwest Regional Medical Center, LLC, 2014 WL 3881418, at *4 (W.D. Okla. August 7, 2014) (concluding that “as a matter of law, Withers ha[s] a record of having skin cancer, and as a result, is considered disabled under prong two of disability as defined by the ADA”).

Therefore, the district court erred when it rejected “record of” coverage in this case on the basis that Wade did not put forth evidence that she had a permanent or lasting impairment that substantially limits or restricts a major life activity. R.72 at 19. The evidence of Wade’s cancer history and treatment, discussed above, establishes that she meets the “record of” prong of the definition of disability under the ADAAA.

III. “Regarded as” having a disability

An individual establishes coverage under the “regarded as” prong (42 U.S.C. § 12102(1)(C)) by establishing that “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,” so long as the impairment is not both transitory and minor. 42 U.S.C. § 12102(3)(A)-(B). By clarifying that an individual need not show the employer perceived the impairment as substantially limiting, the ADAAA broadened the application of the “regarded as” prong of the definition of disability. See 42 U.S.C. § 12101 note (b)(3); EEOC Interpretive Guidance on ADAAA, 29 C.F.R. Pt. 1630, App. § 1630.2(l) (“This provision is designed to restore Congress’s intent to allow individuals to establish coverage under the ‘regarded as’ prong by showing that they were treated adversely because of an impairment, without having to establish the covered entity’s beliefs concerning the severity of the impairment.”). Thus the amended statute takes the emphasis in the regarded-as analysis away from the level of impairment that the individual experiences or is perceived to experience, and instead focuses on whether or not the employer took action against the individual because of an actual or perceived impairment. See Rodriguez v. Verizon Telecom, 2014 WL 6807834, at *5 (S.D.N.Y. December 3, 2014) (“The ADAAA added a paragraph that exempts regarded as claimants from being compelled to demonstrate that the disability they are perceived as having substantially limits a major life activity. … Thus, plaintiff need only establish that defendant regarded him as having a mental or physical impairment and is not required to present evidence of how or to what degree [defendant] believed the impairment affected him.”) (citing 42 U.S.C. § 12102(3)) (internal punctuation and citations omitted); see also EEOC v. Staffmark Investment LLC, 67 F. Supp. 3d 885, 894-95 (N.D. Ill. 2014) (discussing “regarded as” coverage under the ADAAA).

Because it is unnecessary for an individual to demonstrate that her employer perceived her as substantially limited in the ability to perform a major life activity to establish coverage under the “regarded as” prong, the district court erred in rejecting “regarded as” coverage precisely because Wade did not “put forward evidence that she … was regarded as having … a permanent or lasting disability that ‘substantially limits’ a ‘major life activity.’” R.72 at 19. The district court noted evidence of “consistent discrimination against individuals with [a] disability at I.S. 109” (id. at 18), and acknowledged Wade’s testimony that “her cancer made Pate-Alexander uncomfortable.” Id. at 19. And it is undisputed that Wade was fired. The district court therefore erred in its analysis of coverage under the “regarded as” prong. However, because the Commission does not take a position on whether Wade can overcome the DOE’s legitimate nondiscriminatory reason for her termination in this case, the Commission also does not take a position on the ultimate resolution of the “regarded as” coverage issue here.

CONCLUSION

For the foregoing reasons, the Commission respectfully requests this Court to hold that Wade was covered, under the ADAAA, as an individual with an actual or record of disability when she was fired.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/ Donna J. Brusoski

DONNA J. BRUSOSKI

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M Street N.E., 5th Floor

Washington, DC 20507

(202) 663-7049

Donna.Brusoski@eeoc.gov

[1] The Commission takes no position on any other issue in this appeal.

[2] As described above, an ADA plaintiff with cancer is normally covered under the “particularly simple and straightforward” analysis (see 29 C.F.R. § 1630.2(j)(3)(ii)) prescribed by the amended statute and the EEOC’s regulations. Wade alleged actual disability in her complaint (R.2 at 3 II.E.) but did not clearly argue actual disability in opposing summary judgment. However, in light of Wade’s pro se status, and the fact that the district court considered whether she was covered on the basis of an “actual disability” (R.72 at 18-19), the Commission believes it is proper for this Court to address the issue. See generally Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-93 (2d Cir. 2008) (stressing the “permissive application of the rules” governing pleadings in pro se cases).

[3] But see Brandon v. O’Mara, 2011 WL 4478492, at *7 (S.D.N.Y. September 28, 2011) (holding pro se employee recovering from cancer failed to state a claim that she was disabled without considering whether cancer in its active state substantially limited normal cell growth).

[4] Medical literature also addresses how cancer affects normal cell growth. Specifically, with regard to breast cancer, one medical article stated: “Only the smallest tumors are considered ‘cured’ after primary treatment, and recurrence risk remains elevated for at least 15 years post-diagnosis.” L. Natarajan et al., “Time-Varying Effects of Prognostic Factors Associated with Disease-Free Survival in Breast Cancer,” 169 Am. J. Epidemiol. 1463-1470 (2009); see also I. Sestak et al., “Factors Predicting Late Recurrence for Estrogen Receptor-Positive Breast Cancer,” 105 J. Nat’l Cancer Inst. 1504-1511 (2013) (“a substantial number of women, especially those with estrogen receptor (ER)-positive tumors, remain at risk for late recurrences. The annual rate is in excess of 2% for at least 15 years … and currently it is not possible to identify a group of such women who can be considered as cured.”); A. Brewster at al., “Residual Risk of Breast Cancer Recurrence 5 Years After Adjuvant Therapy,” 100 J. Nat’l Cancer Inst. 1179-1183 (2008) (“a substantial number of women remain at risk for later recurrences” of breast cancer) (evaluating factors that increase risk of recurrence after five years).