No. 19-2094















On Appeal from the United States District Court

for the Western District of North Carolina

Hon. Martin Reidinger, United States District Judge

No. 1:18-cv-00221







General Counsel



Associate General Counsel



Assistant General Counsel






Office of General Counsel

131 M St., N.E., Fifth Floor

Washington, D.C. 20507

(202) 663-4718


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


STATEMENT OF INTEREST................................................................. 1


STATEMENT OF THE ISSUES.............................................................. 2


STATEMENT OF THE CASE................................................................. 2


ARGUMENT.......................................................................................... 15


I.    A jury could find that Sanofi failed to reasonably accommodate Perdue’s disability............................................................................ 16


A.   A jury could find that Perdue’s proposed job share with Hunt was a reasonable accommodation of her disability................. 19


B.    The district court misread Barnett to circumvent its core holding that, in most cases, employers are required to make exceptions to neutral policies to accommodate disabled employees..................................................................................... 23


C.    McDonnell Douglas burden-shifting and pretext analysis do not apply to ADA failure-to-accommodate claims......................... 27


D.   The ADA required Sanofi to work with Perdue to find a reasonable accommodation instead of rejecting her request and telling her to find a solution on her own, then terminating her when she failed..................................................................... 28


II.  A reasonable jury could find Sanofi terminated Perdue because of her disability................................................................................. 34


CONCLUSION...................................................................................... 37


CERTIFICATE OF COMPLIANCE...................................................... 39




Table of Authorities


Adams v. Anne Arundel County Public Schools,
789 F.3d 422 (4th Cir. 2015)
.................................... 20, 26

Crabill v. Charlotte Mecklenburg Board of Education,
423 F. App’x 314 (4th Cir. 2011)
............................. 20, 29

EEOC v. Chevron Phillips Chemical Co.,
570 F.3d 606 (5th Cir. 2009)
.................................... 30, 33

EEOC v. Convergys Customer Management Group,
491 F.3d 790 (8th Cir. 2007)
.......................................... 29

EEOC v. Sara Lee Corp.,
237 F.3d 349 (4th Cir. 2001)
.......................................... 24

EEOC v. Sears, Roebuck & Co.,
417 F.3d 789 (7th Cir. 2005)
.......................................... 32

EEOC v. United Airlines, Inc.,
693 F.3d 760 (7th Cir. 2012)
.......................................... 25

Haynes v. Waste Connections, Inc.,
922 F.3d 219 (4th Cir. 2019)
.......................................... 34

Hill v. Associates for Renewal in Education, Inc.,
897 F.3d 232 (D.C. Cir. 2018)
.................................. 18, 20

Holly v. Clairson Industries, L.LC.,
492 F.3d 1247 (11th Cir. 2007)
................................ 25, 26

Incutto v. Newton Public Schools,
No. CV 16-12385-LTS, 2019 WL 1490132
(D. Mass. Apr. 4, 2019)
................................................. 21

Jacobs v. North Carolina Administrative Office of the Courts,
780 F.3d 562 (4th Cir. 2015)
........................ 29, 32, 34, 35

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)
............................................ 16, 27, 28

Nadler v. Harvey,
No. 06-12692, 2007 WL 2404705 (11th Cir. Aug. 24, 2007)
............................................................................... 28

Punt v. Kelly Services,
862 F.3d 1040 (10th Cir. 2017)
...................................... 28

Reyazuddin v. Montgomery County,
789 F.3d 407 (4th Cir. 2015)
................... 18, 19, 20, 27, 31

Smith v. Midland Brake, Inc.,
180 F.3d 1154 (10th Cir. 1999) (en banc)
..................... 22

Spurling v. C & M Fine Pack,
739 F.3d 1055 (7th Cir. 2014)
........................................ 32

Taylor v. Rice,
451 F.3d 898 (D.C. Cir. 2006)
........................................ 26

TFWS, Inc. v. Schaefer,
325 F.3d 234 (4th Cir. 2003)
.......................................... 35

Tobin v. Liberty Mut. Ins. Co.,
553 F.3d 121 (1st Cir. 2009)
.......................................... 25

U.S. Airways v. Barnett,
535 U.S. 391 (2002)
................. 1, 16, 18, 19, 23, 24, 25, 26

Williams v. Channel Master Satellite Systems, Inc.,
101 F.3d 346 (4th Cir. 1996)
.................................... 27, 28

Wilson v. Dollar General Corp.,
717 F.3d 337 (4th Cir. 2013)
.......................................... 29


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

42 U.S.C. § 12111(8)...................................................... 17

42 U.S.C. § 12111(9)........................................... 17, 22, 24

42 U.S.C. § 12111(10)(B).......................................... 19, 27

42 U.S.C. § 12112(b)(5)........................................ 1, 17, 26


Other Authorities

29 C.F.R. § 1630.2(o)(1)(ii)................................................. 17

29 C.F.R. § 1630.2(p)(2)(v)................................................. 19

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335 (Oct. 17, 2002) 22, 30

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


Congress charged the Equal Employment Opportunity Commission (EEOC) with interpreting and enforcing Title I of the Americans with Disabilities Act (ADA), as amended, 42 U.S.C. §§ 12101 et seq. The ADA defines discrimination to include failing to provide a reasonable accommodation to an otherwise qualified disabled employee, absent undue hardship. Id. § 12112(b)(5). The district court held that the plaintiff’s proposed job-sharing accommodation was unreasonable as a matter of law despite record evidence that it would have been feasible, plausible, and effective. The court also misconstrued the Supreme Court’s holding in U.S. Airways v. Barnett, 535 U.S. 391 (2002), on when the ADA requires modification of neutral job rules, placed the burden of identifying reasonable accommodations entirely on the plaintiff, and rejected the plaintiff’s disability-based wrongful termination claim despite compelling record evidence of pretext.

Because the EEOC has an enforcement interest in these questions, we offer our views to the Court. Fed. R. App. P. 29(a).


1. Whether the district court erred in granting summary judgment on the plaintiff’s failure-to-accommodate claim where her employer rejected her proposed reasonable accommodation and then merely advised her to search for open positions on her own and apply for long-term disability benefits.

2.  Whether the district court erred in granting summary judgment on the plaintiff’s wrongful-termination claim where a reasonable jury could find that her employer’s explanation for denying the reasonable accommodation she requested was a pretext for disability discrimination.


For sixteen years, Janet Perdue worked as an Executive Sales Professional (ESP) for Sanofi-Aventis US, LLC (Sanofi), a multinational pharmaceutical company with locations throughout the country. Joint Appendix (JA)-7. She lived in Greenville, South Carolina, and worked in several of Sanofi’s South Carolina territories. JA-57-59. ESPs spend at least half their time traveling and typically work over forty hours each week. JA-124. Perdue’s job duties were to sell medications to doctors in an assigned territory and attend meetings and educational programs; her principal expertise was in marketing diabetes drugs. JA-123; JA-176. It is undisputed that Perdue was a high-performing employee who had excellent performance reviews and won awards for achieving exceptional sales numbers. JA-543-44; JA-506; JA-512; JA-529; JA-554-56.

In the spring of 2013, Perdue was diagnosed with Antisynthetase Syndrome, which involves several autoimmune diseases that cause difficulty breathing and painful inflammation in the lungs, joints, and muscles. JA-67-68. Perdue became wheelchair-dependent and underwent surgery to remove a tumor on her optic nerve that was causing vision loss. Id. She regained her vision and was able to walk and breathe more normally following extensive rehabilitation. JA-69. Perdue manages her condition with medication and by avoiding extreme stress. JA-477.

Sanofi has a formal Flexible Work Arrangements policy (“FlexWorks”) that allows employees to obtain variable work situations including telework, part-time hours, flexible hours, and job shares. JA-129. Applicants must demonstrate that their job is suitable for the proposed flexible arrangement and maintain satisfactory performance prior to applying; failure to meet performance expectations can be grounds for denial of an application. JA-131-32. Applicants seeking a job share must articulate the logistics of the share and anticipate challenges with metrics in place to measure performance and outcomes. Id. Managers then approve or deny a request for a flexible work arrangement based on business needs and conditions, as well as the employee’s demonstration of the job’s suitability. JA-131. The arrangement may be discontinued if it is not working. Id.

After her diagnosis, Perdue worked half-time in a job share in Sanofi’s Spartanburg territory—successfully, according to Danny Roach, her supervisor. JA-69; JA-540. After her job-share partner left Sanofi, she switched to a 60% flex-time arrangement starting in July 2014. JA-98. She transitioned to 80% time in January 2016 when she moved to the Greenville territory, and then to full time in summer 2016. JA-100. She did not require accommodation once she was back to full time. JA-8-¶29.

In December 2016, Sanofi restructured its sales organization. JA-241. Perdue was transferred from the Greenville territory near her home to a larger territory in Asheville, North Carolina, which entailed a much longer commute—typically an hour and twenty minutes each way—and longer-distance drives between customers.[2] JA-241. Perdue’s health deteriorated with the increased driving. JA-79. Her joint pain and stiffness was so severe after the twelve-to-fourteen-hour days that she had to go immediately to bed when she returned home. Id. Her mobility soon became limited. Id.

Amy Welcome, Perdue’s doctor, explained that the stress of driving longer distances, seeing a different set of clients, and having to be away from home for long periods of time was causing flare-ups of her autoimmune disease. JA-793. Perdue worried that she would become wheelchair-bound again or have to be hospitalized. Id. Dr. Welcome recommended that Perdue reduce her work travel to keep stress under control. JA-792; JA-226.

In February 2017, Perdue discussed her medical situation with Roach and her new Asheville territory supervisor, Area Business Leader (ABL) Merideth Hernandez. JA-79-80; JA-83-84. Perdue asked Hernandez about doing a job share in Greenville, and Hernandez encouraged her to contact human resources (HR) about it. JA-84. Hannah Duffy in HR confirmed that job-sharing was available for ESPs in the Greenville territory, and explained Perdue would have to identify a willing candidate and submit a proposal. JA-84; JA-294. Perdue contacted Caitlin Hunt, an ESP in Greenville, about sharing Hunt’s position. JA-84; JA-191. Hunt, who testified she was hoping to start a family in the future, agreed. JA-1098; JA-1194. In emails to Regional Business Leader Tim Cole, Greenville ABL Anderson, and Roach, Hernandez advocated for Sanofi to transfer Perdue back to Greenville or place her in a job share because the long commute had triggered her autoimmune condition. JA-241; JA-889.

Hunt testified that, on February 21, Anderson, who was her supervisor and had just learned of her plan to apply for the job share with Perdue, called her on the phone and “aggressively” and repeatedly asked her why she wanted to be a job sharer. JA-1125. Anderson told Hunt that she could not understand why she wanted to enter into a job share, suggested Perdue was manipulating her, and counseled her not to request the job share “just to help” Perdue. JA-1105-06. Hunt testified, “ever since I applied for a Job Share, it was like a flip [of] the switch in the way [Anderson] treated me … she just looked at me in a different way and was punishing me … for helping Janet.” JA-1170.

On March 9, Perdue and Hunt submitted proposals to share Hunt’s Greenville ESP position. JA-477; JA-486. Perdue’s proposal noted she was requesting a job share based on her current health issues, outlined the days Perdue and Hunt would each work, and detailed a plan for measuring the job share’s progress and success. JA-477-81. Both employees asserted that they would adjust the logistics as necessary. JA-96. HR staff anticipated quick approval of the job share and confirmed to Sanofi managers that it could start mid-quarter, as soon as March 27. JA-255-56.

Meanwhile, Dr. Welcome directed Perdue to take a leave of absence to better manage her condition, beginning on March 9. JA-218; JA-86-87. Dr. Welcome sent Sanofi a contemporaneous letter documenting Perdue’s worsening condition and concluding she was “medically deteriorating” from the switch to Asheville. JA-269. She advised that Perdue could return to work if her driving was limited to thirty-five or forty minutes at a time and if she reduced her work hours while staying closer to Greenville. JA-226. She stated that Perdue could try working full-time in the Greenville territory in the future because it would require significantly less driving than Asheville. JA-271; JA-228.

Anderson, who would be supervising the job share, required Perdue and Hunt to meet with her in person to discuss the proposal; according to HR Generalist Kaitlin Santana, Anderson did so because “you need to have interviews for positions when you’re trying to fill them.” JA-255-58, JA-785. Anderson met with Hunt and Perdue, who was on medical leave at the time, at a restaurant on April 19. JA-834; JA-89. Perdue and Hunt both testified they would have done anything Anderson requested regarding the job share. JA-96; JA-1139-41; JA-1135. Anderson asked Perdue about her health and when she planned to return from leave, and Perdue offered extensive details about her diagnosis and medical history. JA-95; JA-98; JA-835. Anderson then questioned Hunt again about her participation, saying she understood why Perdue was applying, but “I can’t understand why you [Hunt] would be applying for Job Share.” JA-836.

At the same meeting, Anderson, who had supervised Hunt for two months in Greenville, raised concerns about an expense report Hunt had submitted in January that had to be redone and, Anderson felt, showed a lack of attention to detail. JA-1142; JA-192-93. Hunt testified it was “a shock” that Anderson brought up the January expense report because she was a strong performer and Anderson had not questioned her lack of attention to detail at the time. JA-1147-48; JA-1119; JA-554-56. Hunt’s 2017 mid-year performance review, which made no mention of the issue, states that Hunt “quickly corrected mistakes” with oversampling products early in the year. JA-440-46. Just a few days after the April 19 meeting, Hunt received a gold award for being in the top 16% of the sales force; in a May 1 congratulatory email to Hunt, RBL Cole called the award “very important” and “a major accomplishment.” JA-885, JA-975.

On April 25, Dr. Welcome notified the Reed Group, a third-party vendor that processed Sanofi’s paperwork for medical leaves and other accommodations, that she had limited Perdue to working 20-30 hours per week and eliminated long-distance driving out of state. JA-465. Although these restrictions were listed as permanent, Perdue testified that her doctors never communicated that to her (JA-109), and Dr. Welcome testified that when she saw Perdue in August, “[t]he restriction of hours was indefinite.” JA-228. No one from the Reed Group or Sanofi contacted Dr. Welcome to get clarification about the restrictions. JA-637-38.

On May 1, Cole emailed HR and stated that, after meeting with Hernandez and Anderson, they agreed there was no “viable time share arrangement” Anderson would support in the Greenville territory based on “market needs, the skills of the principals, and expanse of the geography.” JA-266. Cole added, “There does not appear to be a place for [Perdue] in her current NC based assignment” because of her latest medical restrictions. Id.

On May 2, Santana offered Perdue hotel stays and a more comfortable car to assist her with the long drives in the Asheville territory. JA-772; JA-270. Santana testified that she had no idea at the time why Perdue was requesting accommodation and only learned Perdue was disabled in preparing for her deposition. JA-654; JA-760. She also testified she did nothing to learn about Perdue’s restrictions or consult with her doctor because that was “private” and not HR’s responsibility. JA-626; JA-637. In any case, neither Perdue nor her doctor believed that hotel stays or a different car would help her perform the job. JA-85; JA-107-08.

Anderson called Hunt and Perdue on May 3 to tell them the job share had been denied for business reasons. JA-850. Anderson emailed Santana that “the business would not support a job share arrangement at this time” and told Duffy, Santana, and Cole she was not sufficiently confident that Perdue and Hunt both had the qualifications to ensure a successful job share. JA-463. Anderson testified at her deposition, however, that she denied the proposal because of Hunt’s performance issues and did not consider Perdue’s disability in making the decision. JA-209; JA-882.

Both Perdue and Hunt testified they were upset and surprised by the denial. JA-104-05; JA-841. Perdue noted that until the meeting with Anderson where she detailed the extent of her health problems, “everyone seemed on board.” JA-105. Hunt felt Anderson had not explained the denial and pointed out that the job-share proposal form directs that a rationale be given if the request needs revision or is denied, yet Anderson left that area blank. JA-841-42. When Hunt called HR to ask about the denial, she testified, Santana told her “we don’t have a reason.” JA-842.

On May 15, Santana emailed another HR official, benefits specialist Sue Gillis, to report her discussion with Perdue on May 2 about Perdue’s medical symptoms and restrictions and how it took Perdue over an hour to reach her Asheville territory. JA-242. Santana did not offer Perdue any solutions. Id.; JA-329-30. After Perdue called the Reed Group for assistance with obtaining an accommodation, Reed confirmed with HR that Sanofi would not accommodate Perdue’s restrictions. JA-262. It is undisputed that no one from HR or the Reed Group contacted Perdue about potential accommodations after early May, when Sanofi denied the job-share proposal. JA-48.

Perdue remained out on leave through September 6. JA-249. She testified that she continued to look for jobs via Sanofi’s online job portal but was unsuccessful, and that she would have taken any job that would have allowed her to stay employed and manage her health. JA-110. Even while on leave, she testified, “[I] fought to get back to work, did the research … submitted a job share proposal” (JA-868) and was “constantly looking for an opportunity or options.” JA-119.

Because Sanofi was rumored to be restructuring again at the end of 2017, Perdue hoped to be reassigned to Greenville in the process. JA-274. But Santana noted in emails to Gillis, Hernandez, and Cole that despite the rumor, “we can’t simply change her territory.” JA-247. Santana testified it was not her responsibility to find job openings for Perdue and that a change in job or territory can never be an accommodation because accommodations only help an employee perform her current position. JA-636. According to Santana, “we can’t simply transfer reps.” JA-247.

In late August, Gillis told Perdue the next step was to apply for long-term disability benefits. JA-245. A week before Perdue’s termination, Gillis suggested she check Sanofi’s portal for pharmaceutical sales position openings in the Greenville area, which Perdue already had been doing “constantly.” JA-119.

Sanofi fired Perdue on September 19 via a phone call and letter from Gillis. JA-113. The letter stated it “follows up on your May 2, 2017 telephone call with … [Santana discussing] your return to work and request[ing] an accommodation to perform the essential functions of your job.” JA-48. According to the letter, Perdue informed Gillis on August 31 “and again today” that she could not return to her full-time position in Asheville, nor “could [she] provide a date when [she] would be able to perform the essential functions of [her] position, with or without accommodations.” Id. It related that Sanofi had offered hotel stays and a more comfortable car as accommodations, which Perdue said would not help, and that the job-share request “was denied due to the nature of the proposed arrangement.” Id.

Perdue continued to look for open sales positions with Sanofi in South Carolina even after her termination. JA-110. When Hunt and another employee resigned in November 2017, Perdue inquired about their positions, but was told Sanofi had a hiring freeze. Id.

Perdue sued Sanofi, alleging that the company violated the ADA by failing to accommodate her disability and terminating her because of her disability and in retaliation for her request for accommodation. JA-11-12. The district court granted Sanofi’s motion for summary judgment as to both Perdue’s failure-to-accommodate and discriminatory termination claims.


In the EEOC’s view, the district court made four principal legal errors in granting summary judgment on Perdue’s failure-to-accommodate and discriminatory termination claims. First, although Perdue was the nonmoving party, the court repeatedly viewed critical, disputed record facts in the light most favorable to Sanofi and substituted its own judgment and inferences for those of the factfinder. Second, the court misread Barnett by expanding the decision’s narrow carve-out regarding seniority systems to a pronouncement that a proposed accommodation must yield to any disability-neutral policy—effectively causing the exception to swallow the rule.

Third, the district court improperly applied the burden-shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to Perdue’s failure-to-accommodate claim, where the employer’s motive is not an element the plaintiff has to establish. Finally, the court placed the burden to identify a reasonable accommodation entirely on Perdue when the ADA’s interactive process requires bilateral cooperation, and a reasonable jury could find that Sanofi failed to participate in that process in good faith.

I.          A jury could find that Sanofi failed to reasonably accommodate Perdue’s disability.

The ADA generally requires employers to provide “reasonable accommodations” to an “otherwise qualified individual with a disability” and defines the failure to do so as one form of discrimination. 42 U.S.C. § 12112(b)(5)(A). An individual is “qualified” if, “with or without reasonable accommodation,” she can do the “essential functions” of the job she “holds or desires.” Id. § 12111(8). “The term ‘reasonable accommodation’ may include … job restructuring, part-time or modified work schedules, reassignment to a vacant position, …  appropriate adjustment or modifications of … policies, … and other similar accommodations for individuals with disabilities.” Id. § 12111(9)(B); see also 29 C.F.R. § 1630.2(o)(1)(ii).

A reasonable jury could find Perdue was a qualified individual because there is sufficient evidence to support a finding that she could perform the essential functions of the ESP job with reasonable accommodation—i.e., working up to thirty hours per week in the Greenville territory by the terms of her job-share proposal. To withstand summary judgment, a plaintiff need only show that a particular accommodation or “method of accommodation” seems “reasonable on its face, i.e., ordinarily or in the run of cases.” U.S. Airways v. Barnett, 535 U.S. 391, 401-02 (2002).

A reasonable accommodation is one that is feasible or plausible. Reyazuddin v. Montgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015). It must also be effective and “should provide a meaningful equal employment opportunity.” Id. at 416; see also Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 238 (D.C. Cir. 2018) (“to be ‘reasonable’ under the ADA, an accommodation must be related to the disability that creates the employment barrier and must address that barrier”).

If an employee establishes that a reasonable accommodation for her disability was possible and that her employer failed to make that accommodation, the employer may nonetheless avoid ADA liability “if it can show as a matter of law that the proposed accommodation will cause undue hardship in the particular circumstances.” Reyazuddin, 789 F.3d at 414 (internal citations and quotation marks omitted). “‘[U]ndue hardship’ means an action requiring significant difficulty or expense,” when considered in light of factors including “the impact … of such accommodation upon the operation of the facility.” 42 U.S.C. § 12111(10)(B)(ii); see also 29 C.F.R. § 1630.2(p)(2)(v) (listing among factors to be considered “[t]he impact of the accommodation upon the operation of the facility, including the … impact on the facility’s ability to conduct business”). “Courts have reconciled and kept distinct the ‘reasonable accommodation’ and ‘undue hardship’ requirements by holding that, at the summary judgment stage, the employee ‘need only show that an “accommodation” seems reasonable on its face,’ and then the employer ‘must show special (typically case-specific) circumstances that demonstrate undue hardship.’” Reyazuddin, 789 F.3d at 414 (quoting Barnett, 535 U.S. at 401-02).

A.        A jury could find that Perdue’s proposed job share with Hunt was a reasonable accommodation of her disability.

As explained above, Sanofi’s “FlexWorks Policy” undisputedly permitted many types of flexible work arrangements. JA-129-32. HR confirmed that the ESP job in the Greenville territory was eligible for job-sharing and explained the steps Perdue and Hunt should follow in obtaining a job share, which they did, with the support of Perdue’s supervisors. See supra at 6; JA-241; JA-889. Email communications from HR reflected its expectation that the job share would be approved and informed the managers involved that it could start imminently, even in the middle of the quarter. See supra at 7-8; JA-255-56. And, notwithstanding Anderson’s remarks at the April 19 meeting, a reasonable jury could find Hunt had received good performance reviews, including from Anderson herself. See supra at 9-10; JA-440-46; JA-1119; JA-554-56.

Accepted as true, this evidence supports a finding that the job share was a reasonable accommodation because it would have been feasible and plausible, addressed Perdue’s disability-related concerns and her doctor’s recommendations, and provided her equal employment opportunity. Reyazuddin, 789 F.3d at 416; Hill, 897 F.3d at 238; see, e.g., Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 432 (4th Cir. 2015) (board’s reassignment of assistant principal to smaller, less stressful school environment in accordance with his doctors’ advice was “plainly reasonable”); Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314, 324 (4th Cir. 2011) (fact issue existed as to whether transferring school counselor from high school to middle school with smaller caseload and different responsibilities would have constituted reasonable accommodation of her neurological disabilities); see also Incutto v. Newton Pub. Sch., No. CV 16-12385-LTS, 2019 WL 1490132, at *2 (D. Mass. Apr. 4, 2019) (evidence that plaintiff previously job-shared, other teaching positions were job-shared, and plaintiff’s principal was receptive supported reasonableness of job share as accommodation).

In ruling that the proposed job share was unreasonable as a matter of law, the district court concluded that half of Hunt’s job was never “vacant” because Sanofi never approved the job share for business reasons, including Hunt’s purported performance deficiencies. JA-1271-72. The court then recharacterized Perdue’s proposal as a request for Sanofi to create a new position for her—which the ADA does not require—and granted summary judgment on that basis. JA-1273.

But a reasonable jury would not be compelled to view the record in this light or to adopt the court’s reasoning. Indeed, the court’s logic on this point is entirely circular: the job-share position with Hunt was not “vacant” because Sanofi did not approve the job share. In this context, speaking of “vacancy” seems odd, because the very nature of a job share involves splitting one pre-existing full-time position between two people. A job share is perhaps better viewed as akin to job restructuring or a modified work schedule, also listed in § 12111(9)(B).

Nonetheless, even working within the “vacancy” framework, a jury could find that half of Hunt’s job was vacant or would become vacant for Perdue in the near future. See, e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999) (en banc) (a “vacant position” includes positions the employer reasonably anticipates will become vacant in the fairly immediate future); see also EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335, at *21 (Oct. 17, 2002) (“Accommodation Guidance”). The record contains evidence that Perdue and Hunt were appropriate job-share candidates in an eligible territory, and both had “maintained satisfactory performances” in accordance with the FlexWorks policy. Supra at 3, 9-10. Moreover, a jury could find that Sanofi itself treated the job share as a vacant position in light of Santana’s testimony characterizing the April 19 in-person meeting between Anderson, Perdue, and Hunt as an interview for a position to be “filled.” JA-785; see supra at 8.

B.         The district court misread Barnett to circumvent its core holding that, in most cases, employers are required to make exceptions to neutral policies to accommodate disabled employees.

According to the district court, the ADA did not require Sanofi to make an exception to its policy that flexible work arrangements must meet the company’s business needs to accommodate Perdue’s disability. JA-1275-76. Relying heavily on a selective reading of Barnett, the court concluded that the job share was therefore an unreasonable accommodation as matter of law. JA-1277-78.

But Barnett in fact supports reversal. In Barnett, the Supreme Court explained, “[b]y definition any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially.” 535 U.S. at 397. And the “simple fact that an accommodation would provide a ‘preference’—in the sense that it would permit the [disabled employee] to violate a rule that others must obey—cannot in and of itself automatically show that the accommodation is not ‘reasonable.’” Id. at 398. Rather, the employer may be required to make exceptions to its nondiscriminatory rules or policies to reasonably accommodate disabled employees. Id.; 42 U.S.C. § 12111(9)(B) (defining “reasonable accommodation” to include “appropriate adjustment or modifications of … policies”).

The Barnett Court assumed that “normally,” a request for reassignment would be reasonable “in the run of cases” because the ADA itself so states. 535 U.S. at 402-03 (citing § 12111(9)). But the Supreme Court announced an exception to that general presumption for reassignment requests in violation of most seniority systems, based on the special status of seniority systems in American labor law. Id. at 402-05 (detailing unique nature of seniority systems and adding that a plaintiff may still show “special circumstances” making reassignment in violation of a seniority system reasonable on the specific facts); see also EEOC v. Sara Lee Corp., 237 F.3d 349, 355 (4th Cir. 2001). 

Sanofi does not rely on a seniority system—or any seniority-related concerns—to excuse it from approving Perdue’s requested job share. But the district court overread Barnett’s seniority-system exemption to extend to Sanofi’s policy that job shares can be denied for business reasons. JA-1275-76. Creating a new exemption was legal error. As explained further below, while an employer may be able to adduce evidence of sufficient business justifications to support an undue hardship defense, simply asserting business-related concerns cannot override Barnett’s core holding. See, e.g., EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012) (observing that a contrary incorrect prior ruling “so enlarged the narrow, fact-specific exception set out in Barnett as to swallow the rule”); Holly v. Clairson Indus., L.LC., 492 F.3d 1247, 1262-63 (11th Cir. 2007) (“Allowing uniformly-applied, disability-neutral policies to trump the ADA requirement of reasonable accommodations would utterly eviscerate that ADA requirement.”).

For this reason, other courts have refused to extend Barnett’s seniority-system exception outside that context. See, e.g., Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 137-38 (1st Cir. 2009) (ruling that Barnett seniority rule did not preclude disabled employee’s accommodation request of reassignment to a different type of non-seniority-based account position); Holly, 492 F.3d at 1263 (holding that employer’s neutral punctuality policy was “not relevant to the question whether Clairson discriminated against Holly by failing to reasonably accommodate his disability”); Taylor v. Rice, 451 F.3d 898, 910-11 (D.C. Cir. 2006) (“[T]he fact that an accommodation would require a change in policy does not necessarily demonstrate unreasonableness or undue hardship.”).

Because a jury could find that Perdue’s proposed job share was a reasonable accommodation, it was Sanofi’s burden to show that accommodating her disability would impose an undue hardship in the operation of its business. 42 U.S.C. § 12112(b)(5)(A); Adams, 789 F.3d at 432 (explaining that, absent undue hardship, not providing such accommodations is “impermissible discrimination”). Relevant factors informing an undue hardship determination include the nature and cost of the accommodation, the financial resources and size of the employer, and the type of business. Reyazuddin, 789 F.3d at 416-17 (providing non-exhaustive list of factors in 42 U.S.C. § 12111(10)(B)).

Sanofi did not argue that accommodating Perdue would impose an undue hardship, nor is there sufficient evidence in the record to allow such a finding as a matter of law. On remand, however, Sanofi will have an opportunity to demonstrate undue hardship.

C.        McDonnell Douglas burden-shifting and pretext analysis do not apply to ADA failure-to-accommodate claims.

The district court faulted Perdue for failing to adduce sufficient evidence to overcome Sanofi’s showing that it denied her accommodation request for legitimate nondiscriminatory reasons. JA-1278, 1283-89. In so ruling, the court incorrectly applied a McDonnell Douglas “pretext” analysis to Perdue’s failure-to-accommodate claim.

This Court, like a majority of other circuits, has rejected application of the McDonnell Douglas burden-shifting paradigm to failure-to-accommodate claims, where the defendant’s motivation is not an element of the claim.  In Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346, 348 n.1 (4th Cir. 1996), this Court explained that “the McDonnell Douglas test is designed to circumvent a factual dispute over the reasons for discharge and is therefore most appropriate when the defendant disavows any reliance on discriminatory reasons for its adverse employment action.” But where the employer’s failure to accommodate the plaintiff’s disability was undisputedly what led to her termination, “[t]he McDonnell Douglas inferential proof scheme is not appropriate.” Id. (internal citations and quotation marks omitted). See also Punt v. Kelly Servs., 862 F.3d 1040, 1049 (10th Cir. 2017) (McDonnell Douglas test is inapposite in failure-to-accommodate case because “in a failure-to-accommodate case there is no need for the employee to prove what the employer’s motives were at all.”); Nadler v. Harvey, No. 06-12692, 2007 WL 2404705, at *8-9 (11th Cir. Aug. 24, 2007) (similar); see also id. at * 9 (citing published cases of five other circuits so holding, including the Fourth Circuit).

D.       The ADA required Sanofi to work with Perdue to find a reasonable accommodation instead of rejecting her request and telling her to find a solution on her own, then terminating her when she failed.

“The ADA imposes upon employers a good-faith duty ‘to engage [with their employees] in an interactive process to identify a reasonable accommodation.’” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581 (4th Cir. 2015) (quoting Wilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir. 2013)). This duty generally is triggered when an employee communicates her disability and need for an accommodation—“even if the employee fails to identify a specific, reasonable accommodation.” Id. “Neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability.… A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.” Crabill, 423 F. App’x at 323 (internal citation and quotation marks omitted). “However, an employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to demonstrate the existence of a reasonable accommodation that would allow her to perform the essential functions of the position.” Jacobs, 780 F.3d at 581.

The employer plays a critical role in the interactive process because it usually has the best information about the availability and feasibility of accommodations in its workplace. See, e.g., EEOC v. Convergys Customer Mgmt. Grp., 491 F.3d 790, 795 (8th Cir. 2007) (noting that “an employer will typically have better access to information regarding possible alternative duties or positions available to the disabled employee”) (internal citation and quotation marks omitted); EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621-22 (5th Cir. 2009) (observing that employee “was not required to come up with the solution … on her own”). See also Accommodation Guidance, 2002 WL 31994335, at *23 (“The employer is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time.… [T]he employer, as part of the interactive process, should ask the employee about his/her qualifications and interest. Based on this information, the employer is obligated to inform an employee about vacant positions for which s/he may be eligible as a reassignment.”).

Here, Sanofi’s superior information notwithstanding, it was Perdue who initially proposed and arranged the job share with Hunt. JA-84. Sanofi rejected that proposal without investigating or suggesting any other reasonable accommodation that might enable Perdue to return to work.[3] See supra at 11-13. As Perdue’s September 19 termination letter verifies, no one at Sanofi reached out to Perdue about a reasonable accommodation after Sanofi denied the job share proposal on May 3. JA-48. Santana’s offer of hotel stays and a more comfortable car was a nonstarter, as she herself testified she was ignorant of Perdue’s disability and the offer was neither intended to, nor actually did, address Perdue’s job-related limitations. See supra at 11; JA-107-08. Thus, neither would have been a reasonable accommodation under the ADA. Reyazuddin, 789 F.3d at 416.

After Sanofi rejected her job-share request, Perdue continued searching Sanofi’s job postings and reaching out to HR and her supervisors while out on medical leave, trying to return to work in some capacity. See supra at 13-14. Meanwhile, Sanofi only advised her to look for openings on its portal and apply for long-term disability benefits. JA-245. And Santana misunderstood Sanofi’s obligations under the ADA: she testified that HR had no responsibility to seek open positions for Perdue or consult with her doctor about her restrictions and changing job positions or territories was not an appropriate accommodation under the ADA in any circumstance.  See supra at 13-14; JA-636, JA-247.

This Court and others have taken a dim view of employers’ responding to legitimate accommodation requests by shutting down the interactive process and/or terminating the requesting employee. See, e.g., Jacobs, 780 F.3d at 581 (finding bad faith precluding summary judgment where supervisors refused to discuss plaintiff’s accommodation request and fired her without discussing her need for job restructuring); Spurling v. C & M Fine Pack, 739 F.3d 1055, 1061 (7th Cir. 2014) (reversing summary judgment for employer where “[r]ather than collaborate with Spurling or her doctor to find a reasonable accommodation, C&M chose to turn a blind eye and terminate her”); EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 806-08 (7th Cir. 2005) (jury could reasonably find that by rejecting plaintiff’s requested accommodation and taking no further action, employer failed its duty to “participate” “meaningful[ly] … in the interactive process).

In this case, a reasonable jury could find Sanofi’s treatment of Perdue similarly lacking in good faith. Perdue could perform the essential functions of the ESP job up to thirty hours per week and in relatively close proximity to Greenville. JA-465. The job share with Hunt would have allowed her to return to work, as would a flex-time position like the one she had in 2014, and she could potentially even transition to full-time work if it was in Greenville with less driving. See supra at 8; JA-271. Sanofi was undergoing a restructuring of its sales force and was rumored to be facing another one. JA-274. Insofar as Sanofi may have had any questions about Dr. Welcome’s restrictions, the interactive process would have afforded it the opportunity it needed to seek clarification. See Chevron Phillips, 570 F.3d at 622.

Accordingly, a jury could find that Sanofi caused the breakdown in the interactive process that prevented Perdue from returning to work as an ESP and instead forced her to go on long-term disability leave. Summary judgment was therefore unwarranted.

II.          A reasonable jury could find Sanofi terminated Perdue because of her disability.

To establish a claim for discriminatory termination under the ADA, a plaintiff must prove that: (1) she has a disability, (2) she is a qualified individual for the employment in question, and (3) her employer discharged her because of her disability. Jacobs, 780 F.3d at 572. The same evidence Perdue adduced that she could perform the ESP job with reasonable accommodation would also support a finding that she was a qualified individual for purposes of her termination claim. See supra at 3, 6, 7-8.

Sanofi maintains it rejected the job share as an accommodation because of legitimate business concerns, including Hunt’s performance issues and that the Greenville territory was underperforming. The company says it then terminated Perdue because there were no jobs she could perform given her medical restrictions.

 To show pretext, a plaintiff may show that an employer’s proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact. Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019); Jacobs, 780 F.3d at 576 (“The fact that an employer has offered different justifications at different times for [an adverse employment action] is, in and of itself, probative of pretext.”) (internal citation and quotation marks omitted).

A reasonable jury could find that Sanofi’s explanations for denying the job share were a pretext for disability discrimination against Perdue. For example, a jury could disbelieve Anderson’s testimony that she had concerns about Hunt’s performance for several reasons.[4] First, the contemporaneous evidence reflects that, when Hunt was purportedly making these mistakes, Anderson neither took corrective action nor raised the issue in Hunt’s mid-year review. See supra at 9-10. A jury could also credit the record evidence that Hunt was a strong employee with good performance reviews who had won a gold award for sales when the proposal was pending. Id. Finally, Hunt’s testimony that Anderson repeatedly questioned her decision to apply for a job share with Perdue, pressured her not to go forward with it, and then seemed to be punishing her following her application would be hard for a jury to reconcile with Anderson’s assertions that Hunt was an inadequate job-share partner. See supra at 7. If Anderson, as Hunt’s supervisor, truly believed Hunt was too weak a performer to job-share, Anderson could simply refuse permission—so why pressure or question Hunt about her desire to participate? A jury could thus find that Anderson’s stated concern with Hunt’s performance was a post-hoc attempt to justify Sanofi’s discriminatory decision to get rid of Perdue because of her disability.

Anderson and Cole also maintained that there was no “viable time share arrangement” in Greenville because the territory itself was underperforming. Supra at 10; JA-266. A jury could easily reject this contention. HR had confirmed that a Greenville ESP was job-share eligible before Perdue and Hunt applied, and HR officials assured management that the job share could start as early as March 27, just over two weeks from the proposal submission date. See supra at 7-8; JA-294, JA-255-56. A jury could find it suspicious that Sanofi only raised this justification months after Perdue and Hunt applied for the Greenville job share—and only after Perdue detailed the seriousness of her medical condition in the meeting with Anderson.


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

Respectfully submitted,



General Counsel



Associate General Counsel



Assistant General Counsel


s/Julie L. Gantz



Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4718





























I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rules 29(d) and 32(a)(7)(B). This brief contains 6,492  words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word for Office 365 word processing program, with 14-point proportionally spaced type for text and footnotes.

/s/ Julie L. Gantz          



U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Fifth Floor

Washington, D.C. 20507

(202) 663-4718





Dated: January 9, 2020



I, Julie L. Gantz, certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 9th day of January 2020, and will mail one copy of the foregoing brief to the Court within one business day, postage pre-paid, for filing with this Court. I also certify that all counsel of record have consented to electronic service and will be served the foregoing brief via the appellate CM/ECF system.



/s/ Julie L. Gantz          



U.S. Equal Employment        

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Fifth Floor

Washington, D.C. 20507

(202) 663-4718


[1] We take no position on any other issue in this appeal.

[2] Around this time, Greenville’s Area Business Leader Deborah Anderson told Perdue there might in the future be an open full-time ESP position in the cardiovascular unit in Greenville. JA-80. No such position in Greenville ever posted. JA-205.

[3] The district court stated that Sanofi “notified her about other open positions,” apparently referring to the potential job opening in Greenville that Anderson mentioned in January 2017. JA-1282 n.12; see supra at 5 n.2. But this opening never materialized, and Perdue testified she would have applied for it if it had. JA-82.

[4] The district court speculated, without record support, that a job share would exacerbate Hunt’s performance difficulties. JA-1286-87. This was impermissible factfinding on summary judgment. Cf. TFWS, Inc. v. Schaefer, 325 F.3d 234, 241 (4th Cir. 2003) (even where both parties cross-moved for summary judgment, finding that “the district court had no warrant in this case to take the summary judgment record and engage in factfinding”).