TABLE OF CONTENTS

Table of Authorities............................................................................... iv

Statement of Jurisdiction......................................................................... 1

Statement of the Issues............................................................................ 1

Statement of the Case.............................................................................. 2

A. Statement of Facts................................................................... 3

B. District Court Decision.......................................................... 10

Summary of Argument.......................................................................... 11

Standard of Review............................................................................... 14

Argument.............................................................................................. 15

I. A REASONABLE JURY COULD FIND JENNINGS WAS QUALIFIED BECAUSE SHE SUCCESSFULLY PERFORMED HER JOB NOTWITHSTANDING HER LIFTING RESTRICTION ........................................................... 15

II. A REASONABLE JURY COULD FIND THAT WOMBLE CARLYLE TERMINATED JENNINGS ON THE BASIS OF HER DISABILITY WHEN IT DISCHARGED HER BECAUSE SHE COULD NOT LIFT 75 POUNDS ALTHOUGH SHE WAS SUCCESSFULLY PERFORMING HER DUTIES .. 24

III. A REASONABLE JURY COULD FIND WOMBLE CARLYLE FAILED TO PROVE IT COULD NOT REASONABLY ACCOMMODATE JENNINGS WITHOUT INCURRING UNDUE HARDSHIP .......................................... 24

CONCLUSION ................................................................................... 29

TABLE OF CONTENTS (cont.)

REQUEST FOR ORAL ARGUMENT ................................................ 30

Certificate of Compliance

Certificate of Service

TABLE OF AUTHORITIES

Cases

Belk v. Southwestern Bell Tel. Co., 194 F.3d 946 (8^th Cir. 1999)......... 21

Bultemeyer v. Fort Wayne Comm. Schools,

100 F.3d 1281(7^th Cir. 1996)............................................................... 28

Complainant v. Donahoe, EEOC DOC 0120080613 (EEOC), 2013 WL 8338375 (Dec. 23, 2013)..................................................................................................... 20

Dargis v. Sheehan, 526 F.3d 981 (7^th Cir. 2008)................................... 27

EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320 (4th Cir. 2010).. 15

Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002) ... 26

Haneke v. Mid-Atl. Capital Mgmt., 131 F. App'x 399 (4th Cir. 2005) 27

Haulbrook v. Michelin N.A., Inc.,

252 F.3d 696 (4^th Cir. 2001) ............................................................... 16

Kiphart v Saturn Corp., 251 F.3d 573 (6^th Cir. 2001)........................... 22

Laurin v. Providence Hosp., 150 F.3d 52 (1st Cir. 1998) .................... 22

Lucas v. W.W. Grainger, Inc.. 257 F.3d 1249 (11^th Cir. 2001) ............. 18

Milton v. Scrivner, Inc., 53 F.3d 1118 (10^th Cir. 1995) ........................ 23

Myers v. Hose, 50 F.3d 278 (4^th Cir. 1995) .................................... 18, 29

Pandazides v. Va. Bd. of Educ., 946 F.2d 345 (4^th Cir. 1991) .............. 19

Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000) ... 15-16

Rehrs v. Iams, 486 F.3d 353 (8^th Cir. 2007).......................................... 21

TABLE OF AUTHORITIES (cont.)

Rohan v. Networks Presentations, LLC, 375 F.3d 266 (4^th Cir. 2004) . 19

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) ........... 27

Turco v. Hoechst Celanese Corp., 101 F.3d 1090 (5^th Cir. 1996) ......... 29

Turner v. Hershey Chocolate U.S., 440 F.3d 604 (3d Cir. 2006).......... 22

Walter v. United Airlines, Inc., 232 F.3d 892 (4^th Cir. 2000) ............... 27

Wilson v. Dollar Gen. Corp., 717 F.3d 337 (4^th Cir. 2013) ............ 17, 27

STATUTES

28 U.S.C. § 1291 ................................................................................... 1

28 U.S.C. §§ 1331, 1337 ....................................................................... 1

Title VII of the Civil Rights Act,

42 U.S.C. § 2000e-5(f)(3) ..................................................................... 1

Americans With Disabilities Act,

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

REGULATIONS, RULES & MISCELLANEOUS

29 C.F.R. § 1630.2 ........................................................................ passim

Fed. R. App. P. 4(a)(1)(B) ...................................................................... 1

Fed. R. App. P. 50................................................................................ 15

Fed. R. App. P. 56 .............................................................................. 15

9A C. Wright & A. Miller, Federal Practice & Procedure,

§ 2529 (2d ed. 1995) .......................................................................... 15

STATEMENT OF JURISDICTION

Plaintiff –Appellant U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) filed this enforcement action against Defendant-Appellee Womble Carlyle Sandridge & Rice (“Womble Carlyle”) under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. JA10-17.[1] The district court had jurisdiction over the EEOC’s suit under 42 U.S.C.

§ 12117(a) (adopting the powers, remedies, and procedures of 42 U.S.C. § 2000e-5(f)(3)) and 28 U.S.C. §§ 1331, 1337, 1343, and 1345. On July 16, 2014, the district court entered final judgment against the EEOC disposing of all claims. JA638. The EEOC timely filed a notice of appeal on September 11, 2014. JA639-40. See Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Essential job functions under the ADA are job duties that bear a direct relationship to the purpose for which the job exists. There is evidence that although Jennings could not lift more than twenty pounds, for years she successfully completed assigned tasks by devising ways to move heavy loads without lifting. Could a jury find that lifting was not an essential function of Jennings’s SSA job?

2. When an employer admits that it fired a qualified individual with a disability because of her disability, the employer has discriminated. Could a reasonable jury find that Womble Carlyle terminated Jennings based on her disability where the undisputed evidence shows she was discharged because she could not lift up to 75 pounds although she had been successfully performing her job for years without lifting more than twenty pounds?

3. Once an employer knows or should know its employee has a disability, the ADA requires the employer, in good faith, to engage in an interactive process to help the employee devise reasonable accommodations. Could a reasonable jury find that despite having enough information about Jennings’s disability and need for an accommodation to trigger its obligation to participate in the interactive process, Womble Carlyle failed to meet its burden to reasonably accommodate her when plausible accommodations existed?

STATEMENT OF THE CASE

This is a disability discrimination lawsuit. The EEOC alleged that Womble Carlyle violated the ADA by failing to accommodate and then firing the charging party, Charlesetta Jennings, because of her disability. JA10-17. The EEOC requested injunctive relief, back pay, compensatory damages, punitive damages and costs. Id. The Commission also requested a jury trial. Id. Womble Carlyle subsequently filed a motion for summary judgment arguing that Jennings was not a qualified individual with a disability under the ADA because her weight restrictions did not permit her to lift up to 75 pounds. JA24, 28-31. The district court held that lifting more than twenty pounds was an essential function of her job and granted summary judgment. JA624-38. This appeal followed. JA639.

A. Statement of Facts

Womble Carlyle is a full-service law firm headquartered in Winston-Salem, North Carolina. Charlesetta Jennings was hired by Womble Carlyle in April 2000 as a Support Services Assistant (“SSA) and she worked either for Womble Carlyle or its affiliate, Firm Logic, holding essentially the same position with the same job duties through her termination in August 2011. JA422-24, 428. Between 2008 and 2011, there were approximately 14-16 SSAs working for Womble Carlyle. JA429, 475, 488.

SSAs were given primary responsibilities for particular tasks and, when needed, they helped each other complete their assigned tasks. JA430, 435, 476, 490. Jennings was assigned the primary responsibilities of scanning, copying and printing. JA428, 430, 434. Other SSAs were similarly assigned these as their primary duties. JA435, 476, 488. To accomplish these tasks, the SSAs, including Jennings, had to move large volumes of paper, weighing more than twenty pounds. JA395-98, 424. Between 2000 and 2008, Jennings was required from time to time to lift or push documents or papers weighing up to 50 pounds. JA424. Jennings also performed other tasks as needed, most of which did not involve heavy lifting, such as book binding, furnishing office and break room supplies, Bates stamping, answering phones, quality control (reviewing another SSA’s work), sorting and delivering envelopes or small packages. JA428. The Director of Administration, Yvonne Pierberg, testified that it was “impossible to anticipate all of the tasks each [SSA] might need to perform.” JA35.

In August 2008, Jennings was diagnosed with breast cancer and underwent chemotherapy and radiation treatments through January 2009. JA208-10. In November 2009, she developed lymphedema, a physical impairment involving fluid retention caused by cancer treatment, which is exacerbated by heavy lifting. JA446-47. These medical events impacted her ability to lift. Id. Between 2008 and February 2011 her physicians limited her lifting to between ten and twenty pounds and, in February 2011, she was placed on a permanent twenty pound lifting restriction. Jennings testified that she adhered to the lifting restrictions she understood to be in place, avoiding all heavy lifting. JA446-47, 449, 453-54.

Jennings devised ways of completing most assignments, including shipping and mailing, without exceeding her lifting restrictions. For example, she broke down boxes of supply paper, moving the paper in reams rather than boxes, she used carts and other devices to move heavier loads and sometimes projects were delivered directly to the room in which she worked. JA217-19. However, when documents or reams of paper needed to be moved in sealed boxes, moving heavy loads was sometimes necessary. JA273-76. The three other SSAs who were also assigned primarily copying and scanning testified that they lifted heavy loads of paper, weighing between 30 and 50 pounds, moving them on and off of carts. JA308, 314, 316-18, 357, 361-64, 393-97, 409. Sometimes they solicited help from others and sometimes they completed the tasks themselves. JA314, 316, 393-97, 402-03. Other SSAs were primarily responsible for other duties, such as setting up rooms, courier runs or moving furniture. JA402-04. Devising methods to avoid lifting was encouraged by management. JA471, 473 (“work smart not harder”); JA501 (“how a task is accomplished . . . is not as important as was the task accomplished”).

SSAs also were expected, on a rotating basis, to complete tasks alone at the other two nearby buildings at which Womble Carlyle had offices, Liberty Plaza and Winston Tower, when the sole SSA permanently assigned to either building was on leave. JA156-58, 348-49. Work at Liberty Plaza sometimes might require weighing heavy loads of paper. JA198-99, 237-38. There is no evidence in the record that any heavy lifting was required at Winston Tower. Most but not all SSAs were also expected to rotate working alone on Saturdays, which included taking mailings and shipments of varying weights to the post office. JA36, 43, 153-54, 307. Any given SSA was only infrequently required to work at either of the satellite buildings or on Saturdays. JA414.

When Jennings returned to work in the fall of 2008 through 2009, she was assigned to work at Liberty Plaza where she performed her main duties of scanning, printing, copying, and then preparing bundles either for delivery to near-by buildings or shipping. JA445. In January 2010, Jennings was transferred to Womble Carlyle’s main building (“Womble Building”) to join the majority of the SSAs. Id. Also in 2010, after the transfer, Jennings infrequently worked at Liberty Plaza and Winston Tower to substitute when the SSA assigned to either building went on leave and on Saturdays. JA453. There is no evidence suggesting that Jennings in any way failed to complete successfully all assigned tasks when on one of these rotations. JA446. Also around this time, Jennings and other SSAs at the Womble Building were assigned to work on a large scanning project when there was no other work to do. JA451-52. This project lasted through the end of 2010 or the beginning of 2011. JA100, 452.

At some point during the first half of 2010, the service center at Liberty Plaza was moved from a large room to a small space, previously used as a closet. JA448. Due to the space limitation, “there was no other place to put the scales but on the floor.” Id. And, because the scale was on the floor, after the box of documents was “put on the scale to be weighed, [Jennings] had to lift” it. JA198. The service center continued to operate out of the small space requiring the scale to be on the floor. JA448.

On June 8, 2010, Jennings injured herself working at Liberty Plaza when she was required to lift from the floor packages weighing between 32 and 38 pounds because “there was no way to get around lifting them from the floor to the hand cart.” JA197, 448. Jennings aggravated her lymphedema and was out of work for 2 ½ days, returning to work on June 11. JA449, 541-42. On June 11, Jennings was assigned to Winston Tower but her shoulder, still sore from the lymphedema, created discomfort. JA542. As a result, Jennings was relieved from working at Winston Tower and she returned to the Womble Building. Id. Around this time, Jennings spoke with the department director, Yvonne Pierberg, about her lifting restrictions. JA235. Jennings testified that she told Pierberg that her doctor said that she “would always have limitations on that side of [her] body.” Id.

Womble Carlyle requested an updated doctor’s note regarding lifting restrictions. JA299-300. Tracey Lawrence, a benefits manager for Womble Carlyle, was instructed by a superior to request from Jennings a doctor’s note, testifying that she “knew it had something to do with a Workers’ Comp issue or a work-related issue.” Id. On June 15, 2010, Jennings submitted a note from her breast surgeon stating that Jennings “should not lift >10 lbs. due to [a diagnosis of] breast cancer and risk of lymphedema.” JA301.

Between June 2010 and the beginning of January 2011, Jennings’s work was largely divided equally between immediate scanning jobs, immediate copying jobs, and working on the large scanning project in her “spare time.” JA269-71. Similar to other tasks prior to June 2010, the large scanning project required her to move boxes weighing between 30-50 pounds. JA273-74. She was required to retrieve the boxes, although they were sometimes delivered directly to her, work with the boxed documents to scan them, replace them in the boxes, and move them again. JA241-43, 273-74. As she had done with earlier projects, Jennings devised creative means of accomplishing the task without lifting. JA273-74. During this period, Jennings performed a wide variety of other tasks without heavy lifting. JA271-73, 276. Jennings was not assigned to Liberty Plaza or Winston Tower after mid-June 2010. JA245-46.

Jennings’s immediate supervisor, Christina Weese, testified that she “had considerable difficulty finding enough light-duty assignments” for Jennings at the end of the year of 2010 because the large scanning project on which Jennings worked, which did not require a lot of heavy lifting, had been completed. JA69. Jennings testified that she did not notice an unusual drop in available work, noting that the work flow routinely rose and fell significantly depending on daily needs. JA278-79.

On January 18, 2011, Tracey Lawrence, benefits manager, and her supervisor, Deborah Isley, director of the benefits department, called a meeting, requesting that Jennings provide a doctor’s note to update her lifting restriction because “more than six months had passed since Ms. Jennings’s lifting limitation was implemented following her injury in June 2010.” JA249-52. At this meeting, Jennings was shown, for the first time, an SSA job description.^{^[2]} JA151, 427. Jennings testified that Lawrence and Isley pointed to the 75 pound lifting requirement in the job description, repeatedly stated that Jennings “need[ed] to talk to my doctor about the 75 pounds.”[3] JA251-52. Jennings explained in detail how she was able to accomplish tasks such as moving boxes without lifting. JA286-87. Jennings testified that neither supervisor directly responded to her explanation about how she was able to complete all tasks without lifting. JA251-52. Instead, Lawrence and Isley exclusively focused on the job description’s lifting requirement, and stated that “it might come” to her losing her job if she cannot lift 75 pounds. JA252.

On approximately February 1, 2011, Jennings’s surgeon faxed to Womble’s HR department a doctor’s note stating that her lifting restriction was raised to twenty pounds and that the restriction was permanent. JA247-49, 253. On February 9, 2011, Pierberg met with Jennings and told her that because she could not lift 75 pounds she was going to be sent home on medical leave. JA254-55. Jennings was further told that she could not return until either she could lift 75 pounds or Womble Carlyle could find something else for her to do. JA255. Jennings told Pierberg although the job description stated that all SSAs were required to be capable of performing all the tasks in the job description, “over 50% of the people in that department can’t do over 50% of the things on that list.” JA254. In August 2011, Jennings exhausted her medical leave. Womble Carlyle terminated Jennings on August 9, 2011, because there was no change in her lifting restriction. JA281-82.

B. District Court Decision

The district court granted summary judgment to Womble Carlyle and dismissed EEOC’s claims for failing to provide Jennings with a reasonable accommodation and ultimately discharging her because of her disability. JA624-37. In dismissing the EEOC’s case, the district court agreed with Womble Carlyle that Jennings was not a qualified individual under the ADA. JA624. The court held that “lifting more than twenty pounds is an essential function for SSAs.” JA632. The court held that lifting more than twenty pounds was essential because: 1) the job description requires SSAs to do “heavy lifting;” 2) “in Womble Carlyle’s judgment, lifting more than twenty pounds was essential because most SSA tasks required such lifting;” 3) experience of many SSAs “confirms that lifting more than twenty pounds is an essential function of the job;” and 4) “an employee who could not lift over twenty pounds would require help with numerous tasks” and there were a “limited number of employees available.” JA633. The court rejected the Commission’s argument that the only essential functions were copying, scanning, and printing, holding that “no evidence suggests that there is or ever has been an SSA whose job was limited to only copying, scanning and printing, or who did not have to lift more than twenty pounds.” Id. The court also held that because all SSAs, including Jennings, were required to perform some “heavy lifting” tasks, removing her from such tasks would impose on other SSAs by requiring them “to work harder and longer.” JA635.

The court also held that Jennings was also not a qualified individual under the ADA because she could not perform the SSA job with a reasonable accommodation. JA635-37. The court stated that although there is evidence that Jennings could do the copying, scanning, and shipping jobs with modifications, she could not perform those tasks when on rotation to Liberty Plaza and Winston Tower or on the Saturday shift. Id. According to the court, because Jennings could not perform the work on these rotations, the only possible accommodations would be to excuse her from the rotations, reassign any heavy lifting from those rotations to others, or arrange for her to work with another SSA to provide her help when needed, none of which were reasonable and therefore not required by the ADA. Id.

SUMMARY OF ARGUMENT

Summary judgment is improper in this case. The district court held that lifting over twenty pounds was an essential function and that because Jennings could not lift heavy loads she was not a qualified individual with a disability under the ADA. The court’s conclusion rested largely on the job description’s 75 pound lifting requirement, testimony from other workers stating that when they performed the same tasks, they lifted, and Womble Carlyle’s arguments that she could not perform her job without heavy lifting. However, in arriving at this conclusion, the court ignored other evidence from which a reasonable jury could find that Jennings was able to perform the job without heavy lifting.

It is uncontested that at least in 2008 and again in mid-2010 through 2011, Womble Carlyle knew that Jennings successfully performed all tasks without heavy lifting, which included scanning, copying, printing, preparing these materials to be transferred to their designated recipient, either within the office buildings or by means of post office shipment. It is also uncontested that Womble Carlyle considered Jennings’s work performance to be successful since 2008. There were no official complaints about her performance or allegations that she ever failed to complete assigned tasks including those involving heavy lifting, whether they were her primary responsibilities or one of the occasional tasks she was asked to perform, such as working alone on Saturdays or at Liberty Plaza or Winston Tower. On this record, the district court erred in holding that a jury could not find Jennings was a qualified individual even though she could not lift heavy loads.

Further, the ADA is violated if an employer fires a qualified person with a disability who is meeting the employer’s reasonable expectations at the time of discharge and is fired under circumstances that can raise an inference of discrimination. Jennings was not terminated because she was not performing her job successfully. Indeed, she had been performing just fine. Rather, Womble Carlyle placed her on leave despite regarding her as a good worker who had been successfully performing her job for years with a lifting restriction, based on her inability to meet a lifting requirement not shown, as a matter of law, to be necessary to the performance of the job. The reason given for removing Jennings from her job was that management could not anticipate all the tasks Jennings may be asked to perform and Womble Carlyle believed that these known and unknown tasks were essential and could not be performed without lifting. Firing an employee after years of successful performance based solely on the speculative belief that she may not be able to continue performing successfully is precisely the type of stereotyping the ADA was enacted to prohibit.

In addition, as to the reasonable accommodation issue, a jury could similarly find that that Womble Carlyle failed to fulfill its duty to identify a reasonable accommodation or that such an accommodation would impose on it undue hardship. When Womble Carlyle met with Jennings to discuss her lifting restrictions and Jennings explained in detail the methods she used to complete tasks, Womble Carlyle made no attempt to assist Jennings in identifying an accommodation. Womble Carlyle did not participate in discussions about accommodations and has failed to show that there was no means of accommodating Jennings. For example, Jennings testified that the only difficulty she had working at Liberty Plaza was that the scale for weighing bundles for shipment was located on the floor. There is nothing in the record to suggest the scale cannot be moved off the floor to a higher, parallel surface. Viewing the facts in the light most favorable to the Commission, a reasonable jury could find Womble Carlyle failed its statutory obligations under the ADA. The district court thus erred in dismissing EEOC’s claims for failure to accommodate and discriminatory discharge.

STANDARD OF REVIEW

The district court’s grant of Womble Carlyle’s motion for summary judgment is subject to de novo review, meaning this Court applies the same summary judgment standard as the district court. E.g., EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 327 (4th Cir. 2010). Summary judgment is proper only if there is no genuine issue as to any material fact and the moving party, Womble Carlyle, is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2).

In making this determination, the Court “must review the record taken as a whole . . . [and] must draw all reasonable inferences in favor of the nonmoving party” – here, the EEOC – without making credibility determinations or weighing the evidence. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation and quotation marks omitted). The Court should review the record in the light most favorable to the EEOC, giving credence to evidence supporting the EEOC and disregarding evidence supporting Womble Carlyle unless it is “‘uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’” See Reeves, 530 U.S. at 151 (analogizing Fed. R. Civ. P. 50 to Fed. R. Civ. P. 56, and quoting, 9A C. Wright & A. Miller, Federal Practice & Procedure, § 2529, at 300 (2d ed. 1995)).

argument

I. A REASONABLE JURY COULD FIND JENNINGS WAS QUALIFIED BECAUSE SHE SUCCESSFULLY PERFORMED HER JOB NOTWITHSTANDING HER LIFTING RESTRICTION

The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a). The Commission’s claims under the ADA for unlawful termination and failure to make a reasonable accommodation both require a showing that Jennings was “a qualified person with a disability” within the meaning of the Act. See Haulbrook v. Michelin N.A., Inc., 252 F.3d 696, 702-03 (4^th Cir. 2001). To survive summary judgment in an ADA discharge case where an employer terminates an employee due to her disability, the evidence when viewed in the light most favorable to the EEOC must allow a reasonable jury to conclude that (1) the charging party is a qualified person with a disability; (2) she was discharged; (3) at the time of her discharge, she was performing the job at a level that met her employer’s legitimate expectations; and (4) the discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. Id. at 702. And, for a failure to accommodate claim under the ADA to survive summary judgment, the evidence must demonstrate that (1) the charging party has a disability under the ADA; (2) the employer is aware of the disability; (3) with a reasonable accommodation, the charging party can perform the essential functions of the job; and (4) “the [employer] refused to make such accommodations.” See Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4^th Cir. 2013) (internal citations omitted); 42 U.S.C. § 1211(8). The fourth element in the ADA failure to accommodate prima facie case imposes on both the employer and employee the duty to engage in an interactive process to identify a reasonable accommodation. 29 C.F.R. § 1630.2(o)(3).

The ADA defines a “disability,” in part, as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual[.]” 42 U.S.C. § 12102(2)(A). “The term ‘qualified individual with a disability’ means an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desire.” See Wilson, 717 F.3d at 345.

To be essential, a function must be a fundamental duty of the job. See 29 C.F.R. § 1630.2(n). “Essential functions” are “the fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). This Court has held that essential functions are those “basic” to the job. See Myers v. Hose, 50 F.3d 278, 282 (4^th Cir. 1995) (essential function of a “bus driver is to operate his motor vehicle in a timely, responsible fashion”); see also, Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11^th Cir. 2001) (duties that are “fundamental to the nature of the job as it exists”). Essential functions do not include marginal functions of the position, those activities that do not bear a direct relationship to the purpose for which the job exists. See 29 C.F.R.

§ 1630.2(n). Moreover, to be considered an essential and not marginal aspect of the job, the function or criterion must “be carefully tailored to measure the actual ability of a person to perform” the job’s primary tasks. H.R. Rep. No. 100-485(III), at 32 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 454-55. The determination of what is an “essential function” of a job is a question of fact. See 29 C.F.R. § 1630.2(n); 29 CFR Pt. 1630, App. §1630.2(n). Evidence of whether a function is essential includes but is not limited to (1) the employer’s judgment as to which functions are essential; (2) written job descriptions; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the person to perform the function; and (5) the current experience of holders of similar jobs. See 29 C.F.R. § 1630.2(n)(3). Therefore, although the employer’s judgment and an employer’s job description shall be considered evidence of the essential functions of the job, 42 U.S.C. §12111(8), “[t]he statute does not require the district court to give the employer’s judgment preclusive effect.” See Rohan v. Networks Presentations, LLC, 375 F.3d 266, 279, n. 22 (4^th Cir. 2004) (“[T]he trial court must do more than simply determine whether or not [the plaintiff] meets all of the stipulated requirements of [the employer], but look to what the position [the plaintiff] seeks actually requires. Pandazides v. Va. Bd. of Educ., 946 F.2d 345, 348-49 (4^th Cir. 1991).” (emphasis added)).

The district court held that lifting was an essential function of Jennings’s job as a matter of law. This was error. Looking at the evidence in the light most favorable to the EEOC, a reasonable jury could conclude that the essential functions of Jennings’s job, which remained largely unchanged from the date of hire to the date of discharge, were copying, scanning, and printing. In addition, Jennings needed to move paper, sometimes in bundles, sometimes in boxes, to prepare it for either internal delivery or external shipment. Womble Carlyle management testified that the manner in which the movement occurred was incidental to the objective of transporting the paper to its designated recipient. See JA500-01, 506-07 (goal is to get the job done). It is uncontested that Jennings performed her job at Womble Carlyle for years, between 2008 and 2011, working at both satellite buildings and on Saturdays, and received only good performance reviews with no official complaints and no reprimands and that she did this without lifting more than twenty pounds.

Jennings testified that the vast majority of the time she moved the bundles of papers necessary to complete her task in loose form. JA217-19. At times, SSAs including Jennings needed to move sealed boxes weighing between 30 and 50 pounds. Rather than lifting, they either devised alternate ways to transport the documents or solicited help from others. JA273-76.Management approved alternate methods to lifting, encouraging Jennings to “work smart not harder.” JA473.

The record demonstrates that moving boxes, rather than lifting boxes, was an essential function of the job. 29 C.F.R. § 1630.2 (n) (noting that essential functions are the “fundamental job duties” of the position and factors determining whether a function is essential include the time spent performing the function and the past and current work experience of persons in the job). Therefore, the evidence on summary judgment is sufficient for a reasonable jury to conclude that because the ability to lift more than twenty pounds was not an essential function, Jennings was a qualified individual because she was able to perform the essential functions of her job.[4]

The evidence here shows that from at least 2008, Jennings successfully performed her primary duties of scanning, copying, and printing, including infrequently rotating between the main building and satellite buildings Liberty Plaza, and Winston Tower, and working on Saturday rotation. Admittedly, on one occasion, Jennings had difficulty performing the job function of weighing boxes at Liberty Plaza because the scale was moved to the floor and she was required to lift the boxes in order to move them. Because the court determined lifting is an essential function and because it found that lifting more than twenty pounds may be required, the court concluded that relieving Jennings of responsibility for lifting duties or excusing her from working at Liberty Plaza, Winston Tower, and the Saturday shift, would not be a reasonable accommodation. See Rehrs v. Iams, 486 F.3d 353 (8^th Cir. 2007) (shift rotation of warehouse technicians essential where it is required of all employees and excusing employee from rotation “would have placed a heavier or unfavorable burden on other technicians at the facility”).

As pointed out infra, the finding that working at Liberty Plaza, Winston Tower, and on Saturdays regularly requires moving bundles in excess of twenty pounds is, at best, disputed on this record. However, even if it were conclusively established by the record, a jury could find the occasional satellite assignments and any accompanying lifting to be marginal to the job’s fundamental duties. And, as marginal tasks, Womble Carlyle was required to accommodate Jennings to the extent she was unable to perform these duties unless it could demonstrate undue hardship. Because Womble Carlyle did not make this showing as a matter of law, summary judgment was improper.

Courts have held a worker’s availability to work on rotation to be essential where the available pool of workers is small, where the skill required performing the tasks is specialized or where rotating between jobs is routine. See Turner v. Hershey Chocolate U.S., 440 F.3d 604, 612-13 (3d Cir. 2006) (repetitive stress injuries to inspectors working on all three lines should be considered when determining whether routine rotation between positions is essential function); Watson v. Lithonia Lighting, 304 F.3d 749, 751 (7^th Cir. 2002) (same); Kiphart v Saturn Corp., 251 F.3d 573, 583-85 (6^th Cir. 2001) (rotation essential function where the team-based workplace structure requirt5ed rotation among skilled tasks to increase employee knowledge and improve employee communication); Laurin v. Providence Hosp., 150 F.3d 52, 60 (1st Cir. 1998) (shift rotation essential function where 24-hour hospital unit requires rational staffing judgments by hospital employer based on the genuine necessities of the hospital business).

Unlike these cases, the rotation here does not involve a small pool of workers, specialized skills, or an integral part of the operation of the workplace. Here, SSAs were asked to rotate to one of the two satellite buildings only when the sole worker assigned to the building was absent. And, because the work did not require specialized skills, either at the satellite buildings or on Saturdays, potentially any one of the 14-15 SSAs could substitute for the absent employee. Cf., 29 C.F.R. §1630.2(n)(2)(ii) (job function may be “essential” because of the limited number of employees available to assume a necessary function). Moreover, the record evidence does not compel a finding that even on the infrequent occasion that Jennings would be assigned to work at either of these buildings or on Saturdays, the work would involve an excessive amount of heavy lifting, the only aspect of the job considered to impose a burden on other employees if Jennings would not be able to perform it. See Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10^th Cir. 1995) (reduction of overall company production standard for disabled employees would impose on all other workers a heightened production standard). For these reasons, a jury could find working on the rotation was a marginal, and not an essential, function of Jennings’s SSA job and, as a marginal function, even if this Court found that such work required some heavy lifting Jennings could not perform, absent a showing of undue hardship, the ADA would require Womble Carlyle to reassign the marginal job duties as a reasonable accommodation. See 29 C.F.R. § 1630.2 (o), app. (reallocation of “nonessential, marginal job functions” is a potential reasonable accommodation).

In any event, even if this Court concluded that the record required a finding that working on rotation was an essential job function, the district court’s holding that Jennings could not perform duties at Winston Tower and during the Saturday shift is undermined by a reading of the record in a light most favorable to the Commission. Since 2008, Jennings successfully worked at Winston Tower and on Saturday shifts, completing all her tasks, without lifting more than twenty pounds. Although Womble Carlyle argued that Jennings could not perform the necessary tasks requiring lifting outside her twenty pound limitation, with the exception of the June 2010 incident, the only support the district court cited was general statements that working on these rotations would be solitary work and, as a result, Jennings “could not count on other Support Services personnel for assistance should any tasks need to be performed that involved lifting outside her limitation.” JA-37-40. (emphasis added). Womble Carlyle management similarly speculated about Saturday work. JA-43. Due to the speculative nature of the tasks Pierberg testified are “impossible to anticipate,” it is similarly not possible to find, conclusively, that they were essential, much less that Jennings would not be able to successfully perform them with or without an accommodation. Therefore, on this record a reasonable jury could conclude that Jennings could successfully perform the essential functions of the SSA job.

II. A REASONABLE JURY COULD FIND THAT WOMBLE CARLYLE TERMINATED JENNINGS ON THE BASIS OF HER DISABILITY WHEN IT DISCHARGED HER BECAUSE SHE COULD NOT LIFT 75 POUNDS ALTHOUGH SHE WAS SUCCESSFULLY PERFORMING HER DUTIES

The ADA makes it unlawful for an employer to discriminate against a qualified individual “because of the disability of such individual.” 42 U.S.C.

§ 12112 (a) (emphasis added). Whether Womble Carlyle fired Jennings because her ability to lift is impaired or because she had cancer or lymphedema, her termination was disability-based. It is undisputed that Womble Carlyle fired Jennings because she could not lift up to 75 pounds due to lymphedema developed after cancer surgery.

A reasonable reading of this record shows that between 2008 and 2011 Jennings was not required to lift more than twenty pounds and she successfully performed her job throughout. Throughout her employment with a lifting restriction, that spanned several years, Womble Carlyle was consistently satisfied with her performance. Nonetheless, in January 2011, Womble Carlyle told Jennings, for the first time, that to work as an SSA she was required to lift up to 75 pounds. And then, a few weeks later, Pierberg told Jennings that because she could not lift up to 75 pounds, she had to leave her job immediately and she could not return unless she provided a doctor’s note giving her the required clearance. Pierberg testified that the decision to remove Jennings from her job was due, in part, to unknown tasks that may arise in the future but are now “impossible to anticipate.” However, an employer’s firing of an employee based on pre-conceived notions that the employee’s physical limitations will likely make successful completion of the job impossible is precisely the type of workplace discrimination the ADA was enacted to eradicate. See generally 42 U.S.C.

§ 12101(a) (in passing the ADA Congress found widespread discrimination and prejudice against individuals with disabilities, noting that those individuals suffer from “stereotypic assumptions not truly indicative of ... individual ability” and from discrimination); see also Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 29 (1st Cir. 2002) (“an employer cannot insulate itself from liability under the ADA merely by asserting its belief that a prospective employee’s known disability will limit her ability to perform a particular job to such an extent as to disqualify her from employment”). As the Gillen Court held, “[e]ven if the employer's belief is honestly held, on particular facts a jury still might conclude that it rested on an unfounded stereotype (and, therefore, constituted discrimination.)” Id. For that reason, on this record, the district court erred in granting summary judgment.

III. A REASONABLE JURY COULD FIND WOMBLE CARLYLE FAILED TO PROVE IT COULD NOT REASONABLY ACCOMMODATE JENNINGS WITHOUT INCURRING UNDUE HARDSHIP

“Under the ADA's scheme, . . . it is discriminatory for a covered employer to decline to take reasonable steps to accommodate an employee's disability, unless the steps in question ‘would impose an undue hardship on the operation of the business’ of the employer.” See Walter v. United Airlines, Inc., 232 F.3d 892 (4^th Cir. 2000). The ADA contemplates that employers engage in an interactive process with employees as a means for determining what reasonable accommodations might be available. Dargis v. Sheehan, 526 F.3d 981, 988 (7^th Cir. 2008) (cited with approval in Wilson, 717 F.3d at 347). An employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process if a plausible accommodation exists. See Haneke v. Mid-Atl. Capital Mgmt., 131 F. App'x 399, 400 (4^th Cir. 2005).

The employer must work with the employee to arrive at an effective accommodation. “The interactive process, as its name implies, requires the employer to take some initiative.” See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315 (3d Cir. 1999). A reasonable jury could conclude, on this record, that Jennings certainly could perform her job with an accommodation and that Womble Carlyle failed to fulfill its duty to identify a reasonable accommodation or to demonstrate that doing so would impose an undue hardship. Womble Carlyle made no attempt to assist Jennings in determining whether some accommodation was possible. Jennings triggered the interactive process obligation when, during the January 2011 meeting where management, for the first time, notified Jennings of a requirement that she must be able to lift up to 75 pounds, Jennings explained how she had been able to perform her job successfully for years without lifting over twenty pounds. Management obstructed the interactive process by insisting on a doctor’s note clearing Jennings to lift up to 75 pounds. Rather than engaging in a discussion with Jennings about possible accommodations, Womble Carlyle summarily put her on medical leave and ultimately terminated her. After Jennings submitted a medical note stating that her twenty pound lifting restriction was permanent, Yvonne Pierberg told Jennings that despite the fact that she was a good worker, she was being sent home because she could not lift up to 75 pounds. As the Seventh Circuit has said, “The employer has to meet the employee half-way.” Bultemeyer v. Fort Wayne Comm. Schools, 100 F.3d 1281, 1285 (7^th Cir. 1996). Viewing the facts in the light most favorable to the Commission, Womble Carlyle fell short of its responsibilities. Accordingly, this record presents sufficient evidence to create genuine issues of material fact making summary judgment inappropriate.

To the extent that Womble Carlyle argues that there was no reasonable accommodation available, Womble Carlyle fails to meet its burden as the moving party on summary judgment. See Myers, 50 F.3d at 284 (defendant meets its burden where it shows no reasonable accommodation exists which would allow plaintiff to meet job requirements). Womble Carlyle argued that the only way Jennings could have been accommodated was to have another SSA perform all tasks that required lifting over twenty pounds. And, according to Womble Carlyle, this would include every time something over twenty pounds needed to be moved. The record shows that Jennings routinely transported documents to the designated recipient, even when the documents weighed in excess of twenty pounds. Moreover, to the extent that others sometimes offered Jennings assistance by lifting the heavy loads, the record shows that SSAs helped each other routinely when lifting heavy loads was necessary. Therefore, unlike cases in which asking others to perform tasks was not reasonable because workers did not typically share responsibilities, in this case, asking others for help was reasonable because it was consistent with how the workplace functioned. See e.g., Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5^th Cir. 1996) (accommodations that require other workers to work substantially harder are not required).

Moreover, Womble Carlyle has not demonstrated that there were no other plausible ways of providing Jennings an accommodation. For example, the record shows that the main difficulty working in Liberty Plaza was because the scale used for weighing boxes to be shipped was placed on the floor. Although the copy room was small and that was the only place the scale could be placed, there is nothing in the record which suggests that the scale could not be placed somewhere else in the building on a table or cart so that boxes could be moved on and off the scale without lifting. Thus, Womble Carlyle failed to consider the possibility of reasonable accommodation for Jennings’s known limitations when plausible accommodations existed. This failure to acommodate directly led to Jennings’s discharge for physical limitations resulting from disabilities. For this reason, a reasonable jury could conclude that Womble Carlyle discharged Jennings because of her disabilities in violation of the ADA.

CONCLUSION

The district court usurped the role of the jury by granting Womble Carlyle’s motion for summary judgment. The quality and quantity of the EEOC’s evidence raised genuine issues of material fact on the EEOC’s claims. The EEOC thus respectfully asks the Court to reverse summary judgment and remand the case for trial.

REQUEST FOR ORAL ARGUMENT

Pursuant to Local Rule 34(a), the EEOC respectfully requests oral argument given the importance of this appeal to the proper interpretation of the ADA and the EEOC’s enforcement efforts.

[1] All references to “JA” are to the corresponding page in the parties’ Joint Appendix.

[2] The job description states SSAs were required to perform a number of “Job Duties and Responsibilities.” JA52-53. The job description also states, “The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of the job . . . [s]ome physical effort is required which may involve . . . lifting or moving items weighing up to 75 lbs.” Id.

[3] Womble Carlyle managers testified that the 75 pound lifting requirement was necessary because all SSAs were expected to perform tasks such as unloading trial trucks with equipment and supplies, help with office moves, and other heavy-lifting tasks. JA35, 59. Jennings testified she “never heard” of trial trucks or the need to load trucks with equipment and supplies, office moves were conducted by a transfer company and not by SSAs; and specific SSAs were assigned to courier runs of larger items and to hospitality work. JA277-78.

[4] There is a question, in this context, whether lifting is a function at all or merely a one method SSAs could use to accomplish the function of moving items from one place to another. See EEOC Technical Assistance on Title I of ADA § 2.3(a), 8 Fair Empl. Prac. Man. (BNA) 405:6995 (1992) (“Although it may be essential that a function be performed, frequently it is not essential that it be performed in a particular way.”); Complainant v. Donahoe, EEOC DOC 0120080613 (EEOC), 2013 WL 8338375 (Dec. 23, 2013) (lifting standard is attached to a function of collecting and distributing mail rather than being a function itself). Here, Jennings needed to perform the function of moving boxes for purposes of scanning, printing, copying and in preparation for shipment. How these tasks were accomplished, e.g. by lifting, was incidental and, arguably lifting was not itself a function. Indeed, Womble Carlyle’s lifting requirement is more akin to a qualification standard than a function because, under these facts, Jennings’s experience over the years of completing the required tasks demonstrates that lifting is not narrowly tailored to the job’s requirement of moving heavy objects as required by qualification standards. See Belk v. Southwestern Bell Tel. Co., 194 F.3d 946, 951 (8^th Cir. 1999) (employer must demonstrate that the qualification standard is necessary and related to “the specific skills and physical requirements” of the at-issue position).