Baum v. Metro Restoration Servs., Inc.,
764 F. App’x 543 (6th Cir. 2019)......................................................................... 5, 38

Bryson v. Regis Corp.,
498 F.3d 561 (6th Cir. 2007)..................................................................................... 38

Chandler v. Specialty Tires of Am. (Tenn.), Inc.,
283 F.3d 818 (6th Cir. 2002).............................................................................. 31, 38

EEOC v. BNSF Ry. Co.,
902 F.3d 916 (9th Cir. 2018), cert. denied, 140 S. Ct. 494 (2019).......................... 33

Griffin v. Finkbeiner,
689 F.3d 584 (6th Cir. 2012)..................................................................................... 23

Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562 (4th Cir. 2015)..................................................................................... 41

Jones v. Nissan N. Am., Inc.,
438 F. App’x 388 (6th Cir. 2011)............................................................................. 29

Lewis v. City of Union City,
934 F.3d 1169 (11th Cir. 2019).......................................................................... 28, 30

Nunies v. HIE Holdings, Inc.,
908 F.3d 428 (9th Cir. 2018).............................................................................. 38, 47

Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000).............................................................................................. 46, 48

Ross v. Campbell Soup Co.,
237 F.3d 701 (6th Cir. 2001).............................................................................. 44, 46

School Board of Nassau County v. Arline,
480 U.S. 273 (1987).................................................................................................... 34

Silk v. Bd. of Trustees,
795 F.3d 698 (7th Cir. 2015)..................................................................................... 31

Skerski v. Time Warner Cable Co.,

257 F.3d 273 (3d Cir. 2001)...................................................................................... 41

Sutton v. United Air Lines,
527 U.S. 471 (1999).................................................................................................. 3, 4

Taylor v. Pathmark Stores, Inc.,
177 F.3d 180 (3d Cir. 1999)................................................................................ 34, 35

Thurman v. Yellow Freight Sys.,
90 F.3d 1160 (6th Cir. 1996)..................................................................................... 48

Watts v. United Parcel Serv.,
378 F. App’x 520 (6th Cir. 2010)............................................................................. 46

Williams v. Tarrant Cty. Coll. Dist.,
717 F. App’x 440 (5th Cir. 2018)................................................................ 28, 38, 40

Statutes

Americans with Disabilities Act of 1990, as amended (ADA)

42 U.S.C. §§ 12101 et seq........................................................................................ 1

42 U.S.C. § 12102.................................................................................................. 26

42 U.S.C. § 12102(1).................................................................................... 2, 3, 18

42 U.S.C. § 12102(1)(A)....................................................................................... 19

42 U.S.C. § 12102(1)(B)....................................................................................... 19

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

42 U.S.C. § 12102(3).................................................................................. 2, 24, 26

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

42 U.S.C. § 12102(3)(B)....................................................................................... 24

42 U.S.C. § 12102(4)(A)....................................................................................... 32

42 U.S.C. § 12103.................................................................................................. 26

42 U.S.C. § 12111.................................................................................................. 26

42 U.S.C. § 12112(a)............................................................................................... 2

42 U.S.C. § 12112(d)(2)........................................................................................ 37

42 U.S.C. § 12205a................................................................................................ 26

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

§ 2(a)(4) (codified at 42 U.S.C. § 12101 note).................................................... 4

§ 2(b)(1) (codified at 42 U.S.C. § 12101 note)................................................... 3

§ 2(b)(3) (codified at 42 U.S.C. § 12101 note)............................................. 4, 34

§ 2(b)(4) (codified at 42 U.S.C. § 12101 note)................................................... 4

§ 2(b)(5) (codified at 42 U.S.C. § 12101 note)................................................. 33

§ 4(a) (codified at 42 U.S.C. § 12102(3)(A))....................................................... 4

§ 8 (codified at 29 U.S.C. § 705 note)............................................................... 45

Americans with Disabilities Act of 1990 (2007)

42 U.S.C. § 12102(2) (2007).................................................................................. 3

Family and Medical Leave Act (FMLA)

29 U.S.C. §§ 2601 et seq.......................................................................................... 8

29 U.S.C. § 2612(b)(1)............................................................................................ 8

Regulations

29 C.F.R. § 1630.2(g)(1)............................................................................................... 2

29 C.F.R. § 1630.2(g)(1)(iii)................................................................................... 3, 24

29 C.F.R. § 1630.2(g)(2)............................................................................................... 3

29 C.F.R. § 1630.2(g)(3)............................................................................................... 3

29 C.F.R. § 1630.2(h)........................................................................................... 26, 31

29 C.F.R. § 1630.2(h)(2)............................................................................................. 41

29 C.F.R. § 1630.2(l)................................................................................................... 24

29 C.F.R. § 1630.4(a)(1)............................................................................................... 2

29 C.F.R. § 1630.13(a)................................................................................................ 37

29 C.F.R. § 1630.15(f)................................................................................................ 24

Legislative Materials

H.R. Rep. No. 110-730, pt. 1 (2008)....................................................................... 34

Statement of Representatives Hoyer and Sensenbrenner on

the Origins of the ADA Restoration Act of 2008, H.R. 3195,

154 Cong. Rec. H6067 (June 25, 2008).................................................................. 33

Administrative Materials

29 C.F.R. pt. 1630, app. § 1630.2(g).......................................................................... 2

29 C.F.R. pt. 1630, app. § 1630.2(l)............................................... 24, 32, 33, 34, 46

29 C.F.R. pt. 1630, app. § 1630.4............................................................................. 33

ADA Enforcement Guidance: Preemployment

Disability-Related Questions and Medical Examinations,

No. 915.002 (October 10, 1995), 1995 WL 1789073........................................... 37

EEOC Enforcement Guidance on the Americans

with Disabilities Act and Psychiatric Disabilities,

No. 915.002 (Mar. 25, 1997), 1997 WL 34622315............................................... 41

STATEMENT IN SUPPORT OF ORAL ARGUMENT

The Equal Employment Opportunity Commission (EEOC or Commission), plaintiff in this case, contends in this appeal that the district court erred in granting summary judgment to defendant West Meade Place, LLP (West Meade), on the Commission’s claims under the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq. This case presents an important question about whether the protections of the ADA extend to an employee who is fired based on her employer’s belief that a serious medical condition rendered her unable to perform her job. In particular, this case concerns the question whether such an employee is “regarded as having an impairment,” 42 U.S.C. § 12102(1)(C), and thus has a “disability” within the meaning of the ADA, as amended. The Commission believes that oral argument would assist this Court in interpreting the scope of regarded-as coverage under the ADA.

STATEMENT OF JURISDICTION

The Commission brought this enforcement action against West Meade pursuant to the ADA, 42 U.S.C. §§ 12101 et seq. Complaint, R. 1, Page ID # 1. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345. The district court entered final judgment for West Meade on October 22, 2019. Entry of Judgment, R. 75, Page ID # 562. On December 20, 2019, the EEOC filed a timely notice of appeal pursuant to Fed. R. App. P. 4(a)(1)(B)(ii). Notice of Appeal, R. 92, Page ID ## 897-898. This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUE

Could a reasonable jury conclude that West Meade regarded Carma Kean as having an impairment, thus satisfying the third prong of the definition of “disability” in the amended ADA, based on evidence showing that West Meade terminated Kean because it believed she had an anxiety disorder or another serious medical condition that rendered her unable to perform her job functions?

PERTINENT STATUTORY AND REGULATORY PROVISIONS

Pertinent statutory and regulatory provisions are reproduced in an addendum to this brief.

STATEMENT OF THE CASE

I. Statutory and Regulatory Background

Title I of the ADA generally prohibits discrimination “on the basis of disability” in employment. 42 U.S.C. § 12112(a); 29 C.F.R. § 1630.4(a)(1). Whether an individual has a “disability” is typically a “threshold issue” that determines whether she “is covered by the ADA.” 29 C.F.R. pt. 1630, app. § 1630.2(g) (quoting legislative history). The definition of “disability” in the ADA, as amended in 2008, includes three independent prongs: “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in [42 U.S.C. § 12102(3)]).” 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1). An employee may establish coverage by satisfying any one of these three prongs. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(2).

This appeal concerns the third prong of the definition of disability, the “regarded as” prong. As to that prong, the statute further provides: “An individual meets the requirement of ‘being regarded as having such an impairment’ [under § 12102(1)(C)] if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A); 29 C.F.R. § 1630.2(g)(1)(iii) & (3).

Congress significantly changed the “regarded as” prong as part of the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553, which was passed to “reinstat[e] a broad scope of protection to be available under the ADA.” Id. § 2(b)(1) (codified at 42 U.S.C. § 12101 note). Before the amendments, the statute’s definition of “disability” was similar to the current version: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (2007). But the pre-amendments statute did not include the further explanation of the “regarded as” prong now embodied in 42 U.S.C. § 12102(3)(A). See also 29 C.F.R. § 1630.2(g)(1)(iii) & (3). Interpreting the pre-amendments statute, the Supreme Court in Sutton v. United Air Lines, 527 U.S. 471 (1999), concluded that regarded-as coverage applied only where: “(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.” Id. at 489 (emphasis added).

With the ADAAA, however, Congress amended the statute to “reject the Supreme Court’s reasoning in [Sutton] with regard to coverage under the third prong of the definition of disability.” ADAAA, Pub. L. No. 110-325, § 2(b)(3) (codified at 42 U.S.C. § 12101 note). “Congress took this action because it believed that Sutton (among other Supreme Court decisions) unduly ‘narrowed the broad scope of protection intended to be afforded by the ADA,’ and thereby ‘eliminat[ed] protection for many individuals whom Congress intended to protect.’” Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 318 (6th Cir. 2019) (quoting ADAAA, Pub. L. 110-325, § 2(a)(4) (codified at 42 U.S.C. § 12101 note)). Congress superseded Sutton by adding new statutory text making clear that an employee meets the “regarded as” definition of disability if an employer takes prohibited action “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” ADAAA, Pub. L. No. 110-325, § 4(a) (codified at 42 U.S.C. § 12102(3)(A)) (emphasis added). Therefore, an employee who seeks to establish “regarded as” coverage under the amended ADA “need not prove a limitation of a major life activity.” Baum v. Metro Restoration Servs., Inc., 764 F. App’x 543, 547 (6th Cir. 2019).

II. Factual Background[1]

Carma Kean worked as a laundry assistant for West Meade, a rehabilitation and healthcare center in Nashville, Tennessee, from February 2015, until her termination in November 2015. Kean Dep., R. 42-1, Page ID ## 106-107, 114, 141. Kean’s responsibilities included sorting and washing laundry and attending to dryers. Kean Dep., R. 42-1, Page ID ## 108-109.

A. Kean’s anxiety disorder

Kean has an anxiety disorder that manifests in “flare-ups.” Kean Dep., R. 42-1, Page ID ## 118, 159; EEOC Interrog. Resp., R. 50-1, Page ID ## 396-397. Kean described her symptoms during a flare-up as follows: “My heart could race. You feel like you have to catch your breath. You break down and cry. Sometimes you are just a little, you may say, discombobulated.” Kean Dep., R. 42-1, Page ID # 159. Her flare-ups are unpredictable (although she has learned of some factors that trigger her condition), and their frequency and duration “depend[] on the situation and the environment.” Kean Dep., R. 42-1, Page ID ## 152, 159. When Kean experiences a flare-up, she manages her symptoms by going to a quiet place to calm down, usually for no more than fifteen minutes. Kean Dep., R. 42-1, Page ID # 159; EEOC Interrog. Resp., R. 50-1, Page ID ## 396-397. Kean takes prescription medication (primarily clonazepam, or Klonopin, which is prescribed for panic disorder) to manage her anxiety and to reduce the frequency of flare-ups. Kean Dep., R. 42-1, Page ID ## 119, 159; EEOC Interrog. Resp., R. 50-1, Page ID # 396; see also Mayo Clinic—Drugs and Supplements—Clonazepam (Oral Route)—Description and Brand Names, https://www.mayoclinic.org/drugs-supplements/clonazepam-oral-route/description/drg-20072102.

Kean has experienced anxiety for over thirty years, and she was diagnosed with an anxiety disorder at least a decade ago. Kean Dep., R. 42-1, Page ID ## 147-148, 153, 159; EEOC Interrog. Resp., R. 50-1, Page ID # 396. During Kean’s tenure at West Meade, she was treated for anxiety by Dr. Aisha Hashmat, a family physician. Kean Dep., R. 42-1, Page ID ## 119-120; Hashmat Dep., R. 50-4, Page ID # 424; FMLA Certification, R. 50-4, Page ID ## 425, 427. Dr. Hashmat testified that “anxiety” was the diagnosis of Kean’s prior medical-care providers and also confirmed that it was “[her] own diagnosis.” Hashmat Dep., R. 50-4, Page ID # 424. Dr. Hashmat’s practice was located in Anderson, Indiana, where Kean lived for most of her life, including immediately before moving to Nashville, and where Kean’s sister and other family members still lived. Kean Dep., R. 42-1, Page ID ## 119, 130, 152-153. Kean opted to remain with her long-time practice when she relocated to Nashville because it was “familiar.” Kean Dep., R. 42-1, Page ID ## 119-120.

During Kean’s tenure at West Meade, she saw Dr. Hashmat about every three months. Kean Dep., R. 42-1, Page ID # 126. She took time off work for those appointments in April, August, and November 2015. Kean Dep., R. 42-1, Page ID ## 126-127. Kean also recalled that “[t]here [were] days when I didn’t go in [to work] because of my anxiety,” and that she contacted her direct supervisor on those occasions. Kean Dep., R. 42-1, Page ID ## 114, 136. Then, around August or September 2015, a new workplace situation began affecting Kean’s anxiety, when two new employees started working in the laundry. Kean Dep., R. 42-1, Page ID ## 122, 159. Kean’s new coworkers sometimes yelled at Kean and directed profanity and insults at her, while ignoring her at other times. Kean Dep., R. 42-1, Page ID ## 123-125.

B. Kean’s request for intermittent leave

On November 17, 2015, after Kean’s appointment with Dr. Hashmat earlier that month, Dr. Hashmat’s office faxed a form entitled Certification of Health Care Provider to West Meade, attention “Debra Varden.” Kean Dep., R. 42-1, Page ID ## 127-128; FMLA Certification, R. 50-4, Page ID ## 425-426. The form was intended to provide medical documentation for leave requested under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. FMLA Certification, R. 50-4, Page ID # 426.

Dr. Hashmat’s FMLA certification indicated that Kean had a “serious health condition,” although it did not name Kean’s condition. Id. The certification stated that Kean “is not able to work during flare-ups/episodes” and estimated that she would need “1-3 days [of leave] per month” for flare-ups and “3-4 times a year or as needed” for treatment. Id. It explained that Kean’s condition commenced in October 2006 and would be “ongoing for [her] lifetime,” and it reflected that Kean’s treatment regimen included “prescription drugs.” FMLA Certification, R. 50-4, Page ID ## 426-427.

On November 18, 2015, Kean asked Deborah Varden, West Meade’s Director of Payroll, about taking FMLA leave. Kean Dep., R. 42-1, Page ID # 134; Jarvis Dep., R. 42-10, Page ID ## 250-251, 262; Supervisory Action Notice, R. 50-3, Page ID # 421. Varden called in Theresa Jarvis, West Meade’s Director of Nursing, to speak to Kean. Kean Dep., R. 42-1, Page ID # 152; Jarvis Dep., R. 42-10, Page ID ## 250-251, 263. Kean did not expect FMLA leave to be paid, and she inquired “about intermittent [leave] for when my anxiety flares up.” Kean Dep., R. 42-1, Page ID ## 134, 152. Even though the FMLA authorizes intermittent leave for serious health conditions, see 29 U.S.C. § 2612(b)(1), Varden said “there is no such thing” as intermittent leave. Kean Dep., R. 42-10, Page ID # 134. Jarvis and Varden told Kean that she did not qualify for FMLA leave because she had worked at West Meade less than twelve months. Kean Dep., R. 42-1, Page ID # 134; Supervisory Action Notice, R. 50-3, Page ID # 421.

Although Kean recalled discussing intermittent leave with Jarvis and did not expect paid leave, Kean Dep., R. 42-1, Page ID ## 134, 152, and although Dr. Hashmat’s FMLA certification—the only written request for leave in the district court record—referred to one to three absences each month, FMLA Certification, R. 50-4, Page ID # 426, Jarvis maintained at her deposition that Kean insisted that she was entitled to twelve weeks of paid FMLA leave. Jarvis Dep., R. 42-10, Page ID ## 243, 248, 261-262. According to Jarvis’s testimony, Kean “provided me with a doctor’s statement . . . from Dr. Hashmat” indicating that Kean “had to be completely off work . . . for 12 weeks,” although Jarvis admitted that she “didn’t look at the [doctor’s] note” in question and, instead, “just glanced at it.” Jarvis Dep., R. 42-10, Page ID ## 246, 248. Jarvis acknowledged at her deposition that Kean said she had anxiety during the conversation about Kean’s request for FMLA leave. Jarvis Dep., R. 42-10, Page ID ## 260, 262. But Jarvis nevertheless maintained that Kean did not represent that her anxiety was “incapacitating” or that it was a disability. Jarvis Dep., R. 42-10, Page ID # 262.

Although Kean expected to finish her shift that day, Jarvis told Kean she “had to go [home] now” “because of what the doctor wrote . . . and because that was brought to her attention.” Kean Dep., R. 42-1, Page ID # 135. Jarvis acknowledged that, after Kean requested FMLA leave, “I informed [Kean] that I couldn’t let her immediately come back to work; she had to go back to the doctor and the doctor had to approve her to come back to work.” Jarvis Dep., R. 42-10, Page ID # 243. Jarvis recalled that she “explained” to Kean that Kean could not return to work without a medical release because “she had some sort of medical issue or an issue where she could not work her job duties at that time,” and that otherwise, “the doctor wouldn’t have [written] that, do not work for 12 weeks.” Id. Jarvis added that she told Kean that “even if she had anxiety and wanted to come back to work, she needed to see the doctor.” Jarvis Dep., R. 42-10, Page ID # 260.

Jarvis testified that she believed Kean was subject to significant restrictions: “She had been taken off work completely; that means no work, not sitting down, not any, any restrictions; it was completely off work for 12 weeks.” Id. As a result, Jarvis believed that Kean “couldn’t do her job” at that time. Jarvis Dep., R. 42-10, Page ID # 261; see also Jarvis Dep., R. 42-10, Page ID ## 247-248 (testifying that Kean gave her “a note stating that she required 12 weeks off work because she’s unable to perform her job duties” and that Kean’s FMLA request “[told her Kean] couldn’t do her job, any of it”). Jarvis asserted that this belief justified requiring a work-release note from Kean because “I can’t put somebody to work or let them work if I don’t know what they can and cannot do.” Jarvis Dep., R. 42-10, Page ID # 247. However, Jarvis admitted that she did not ask Kean “what she could or could not do.” Jarvis Dep., R. 42-10, Page ID # 248.

Although Jarvis acknowledged that she told Kean she could not return to work without a medical release, Jarvis expressed doubts that Kean would be able to obtain such a release. At her deposition, Jarvis explained, “I also told [Kean] I don’t believe a doctor who just took you off work for 12 weeks is going to all of a sudden now let you come back to work full duty the way you want.” Jarvis Dep., R. 42-10, Page ID # 262. Jarvis also expressed her view that “[i]t’s highly unlikely that another doctor would have released her.” Jarvis Dep., R. 42-10, Page ID # 248.

Kean wanted to return to work, although she had hoped she would be able to take intermittent FMLA leave to address her anxiety disorder when needed. Kean Dep., R. 42-1, Page ID ## 135, 152. Thus, after meeting with Jarvis, that same afternoon, Kean called Dr. Hashmat’s office to request a doctor’s letter stating that she was “able to work with no restrictions or [l]imitations,” according to a call log from Dr. Hashmat’s records. Hashmat Call Log, R. 50-4, Page ID # 428. The call log reflected that Kean told a representative from Dr. Hashmat’s office that her employer had informed her that she was not eligible for FMLA leave and that the company would terminate her if it did not receive a doctor’s note by the next day. Id. Dr. Hashmat’s office called Varden and left a message asking what information the company required. Id.

C. Kean’s termination

The next day, on November 19, Jarvis terminated Kean in a phone call. Change of Status and Separation Form, R. 50-3, Page ID # 420. The record includes several accounts of the events leading up to the termination.

1. The account in West Meade’s official termination paperwork

The day of Kean’s termination, November 19, Jarvis and Varden completed three official documents pertaining to Kean’s termination. A “Change of Status and Separation Form,” which Jarvis signed, identified the “Reason” for Kean’s termination as “Employee unable to perform job duties.” Id. Varden signed a “Separation Notice,” a Tennessee Department of Labor and Workforce Development form, which similarly described the “circumstances of [Kean’s] separation” as “Unable to perform job duties.” Separation Notice, R. 50-3, Page ID # 419.

Jarvis also signed a “Supervisory Action Notice,” which included a narrative that opened: “On 11/18/2015, the employee reported to [Varden] that she had a medical condition of anxiety that required restrictions be made to her position and she applied for FMLA.” Supervisory Action Notice, R. 50-3, Page ID # 421. In the narrative, Jarvis wrote that Kean “was then informed that she does not meet the criteria for FMLA [leave]” and “that she needed to go back to her physician and get a letter releasing her back to work with full duties and no restrictions.” Id. Jarvis’s narrative went on to describe a conversation Jarvis had on November 19 with a nurse from Dr. Hashmat’s office named Amy. Id. During this conversation, the narrative stated, “[Jarvis] explained that the employee needed a letter releasing her back full duty and Amy stated that Dr. [Hashmat] would not provide the letter because the employee has to be reassessed.”[2] Id.

The narrative then made a reference to Jarvis’s understanding that Kean’s sister worked in the medical records department at Dr. Hashmat’s practice, and it stated that Kean had attempted to provide Jarvis with her sister’s phone number. Id. (In fact, Kean’s sister does not work in Dr. Hashmat’s office. She works in the medical records department of a hospital near Dr. Hashmat’s office. Kean Dep., R. 42-1, Page ID ## 130, 152.) The narrative went on, however, to explain that Jarvis instead called and asked to speak with Dr. Hashmat’s nurse. Supervisory Action Notice, R. 50-3, Page ID ## 421-422

Jarvis’s narrative further explained that Jarvis informed Kean by telephone that Dr. Hashmat would not provide a release “because [Kean] had not been seen personally by the doctor.” Supervisory Action Notice, R. 50-3, Page ID # 421. The narrative concluded by explaining that Kean “was informed [by telephone] that she was being terminated because she was unable to perform her job duties.” Supervisory Action Notice, R. 50-3, Page ID # 422.

2. The account in Jarvis’s deposition testimony

Jarvis asserted a starkly different account of Kean’s termination at her deposition, which took place three years after the termination. In her deposition, she claimed that West Meade terminated Kean because, on November 19, Kean submitted a falsified note from Dr. Hashmat that purported to clear her to return to work. Jarvis Dep., R. 42-10, Page ID ## 243, 247, 251, 253.

Specifically, Jarvis claimed at her deposition that, on November 19, Kean “brought in a note” “on a prescription pad,” which was purportedly from Dr. Hashmat, and which stated Kean could return to work. Jarvis Dep., R. 42-10, Page ID ## 243, 247, 250. However, West Meade’s document production in this litigation did not include such a work-release note.

Jarvis testified that, immediately after receiving this work-release note, she telephoned Dr. Hashmat to “verify” the release and “spoke directly to Dr. Hashmat.” Jarvis Dep., R. 42-10, Page ID ## 243, 246, 257, 261. According to Jarvis’s testimony, during this alleged telephone conversation, Dr. Hashmat said that “[she] did not give [Kean] a note to return to work, nor would [she] ever give [Kean] a note to return to work.” Jarvis Dep., R. 42-10, Page ID # 250. Jarvis insisted that Dr. Hashmat told her “that she would not release Kean to come back to work under any circumstances.” Jarvis Dep., R. 42-10, Page ID ## 246, 251. And Jarvis claimed in her testimony that Dr. Hashmat said she was Kean’s “pain doctor,” that she “[ran] a pain clinic,” and that she was “treating [Kean] for pain,” although Dr. Hashmat was actually a family physician who was treating Kean for anxiety. Kean Dep., R. 42-1, Page ID ## 119-120; Jarvis Dep., R. 42-10, Page ID ## 243, 246, 251; Hashmat Dep., R. 50-4, Page ID # 424; FMLA Certification, R. 50-4, Page ID ## 425, 427.

The call log from Dr. Hashmat’s office does not corroborate Jarvis’s deposition testimony—and contradicts it in some respects. First, although Jarvis testified at her deposition that she “spoke directly to Dr. Hashmat” about a falsified work-release note, Jarvis Dep., R. 42-10, Page ID # 261, Dr. Hashmat’s call log did not reflect any conversation between Jarvis and the doctor, nor did it reflect any conversations between Jarvis and anyone on Dr. Hashmat’s staff about an allegedly falsified work-release note, Hashmat Call Log, R. 50-4, Page ID ## 428-430. Also, contrary to Jarvis’s testimony that Dr. Hashmat said she would never give Kean a release, Jarvis Dep. R. 42-10, Page ID # 250, Dr. Hashmat’s call log reflected that a representative from Dr. Hashmat’s office called Jarvis on November 20—the day after Kean’s termination—and “told her that Dr. Hashmat would write a letter that [Kean] could work without restrictions.” Hashmat Call Log, R. 50-4, Page ID # 429. The representative recorded that Jarvis responded that “it really didn’t matter because [Kean] no longer worked there.” Id.

When asked at her deposition why Kean’s official, contemporaneous termination forms did not cite falsification of documents as a reason for termination, Jarvis insisted that a comment on one of those three forms was a reference to Kean’s supposed falsification of documents. Jarvis Dep., R. 42-10, Page ID # 259. The comment stated: “Employee attempted to use MD in Anderson Indian[a] where her sister worked.” Id.; Change of Status and Separation Form, R. 50-3, Page ID # 420. Even though the comment said nothing about a falsified document, Jarvis claimed that it meant Kean “was unable to perform her job duties because she provided a falsified MD statement,” adding that “I just didn’t write unable to perform job duties due to a falsified MD statement.” Jarvis Dep., R. 42-10, Page ID # 259. Jarvis also maintained at her deposition that she did not mention falsification of documents in the official termination forms because she did not want to prevent Kean from obtaining unemployment benefits. Id.

3. The account in Jarvis’s letter

The record also includes a document authored and signed by Jarvis outlining a somewhat different version of events leading up to Kean’s termination. Jarvis Letter, R. 42-11, Page ID # 294. Unlike the official termination paperwork, this document (which Jarvis referred to in her deposition as a “letter” or “statement,” Jarvis Dep., R. 42-10, Page ID # 258) was neither a West Meade form nor a state form. Jarvis claimed at her deposition that she created this letter around the time of Kean’s termination, and the document bears the date of November 19. Jarvis Dep., R. 42-10, Page ID # 258.

The account in Jarvis’s letter was similar to the official account in the Supervisory Action Notice, except that Jarvis claimed in the letter that Kean called Jarvis to say that Dr. Hashmat would be releasing her to work. Jarvis Letter, R. 42-11, Page ID # 294; Supervisory Action Notice, R. 50-3, Page ID # 421. Also, according to the letter, Kean asked Jarvis to confirm by calling someone in Dr. Hashmat’s office who, Jarvis asserted she learned, was actually Kean’s sister. Jarvis Letter, R. 42-11, Page ID # 294. Jarvis wrote that she then spoke “directly to Dr. [Hashmat],” who stated she would not release Kean to return to work without an assessment. Id. (As noted above, Dr. Hashmat’s call log reflected no phone calls between the doctor and Jarvis and indicated that Jarvis, not Dr. Hashmat, demanded a renewed assessment as a precondition for signing a release. See supra pp. 13 n.2, 15.).

Jarvis’s letter further asserted that “[t]he employee and her sister repeatedly called me stating that the employee had a release. I informed the employee that the release had not come from Dr. [Hashmat] but from her sister.” Id. But the letter never alleged that Kean gave Jarvis a written work-release note in person (fabricated or otherwise), as Jarvis did in her deposition. Jarvis Dep., R. 42-10, Page ID ## 243, 247, 250; Jarvis Letter, R. 42-11, Page ID # 294.

Moreover, although Jarvis wrote that she “explained to the employee that providing false documentation of a doctor release was grounds for termination,” Jarvis Letter, R. 42-11, Page ID # 294, Jarvis’s letter did not rely on “false documentation” as the justification for Kean’s termination. Instead, Jarvis wrote that, after Kean expressed her continued desire to return to work, “[t]he employee was . . . informed to return to the doctor and request a release to work. The employee failed to return to the physician and be assessed and failed to provide a release to work by the physician. The employee was terminated for cause.” Id.

III. Procedural Background

The Commission filed suit on Kean’s behalf, alleging that West Meade violated the ADA by terminating Kean on the basis of disability and by denying her a reasonable accommodation (occasional, intermittent leave of brief duration) for her anxiety disorder. Complaint, R. 1, Page ID ## 1, 4. The district court granted summary judgment to West Meade on the Commission’s claims. Opinion R. 73, Page ID # 545. The district court concluded that no reasonable jury could find that Kean met any of the three statutory definitions of “disability.” Opinion, R. 73, Page ID ## 547-548, 560 (quoting 42 U.S.C. § 12102(1)). In light of that holding, the court did not consider any other elements of the Commission’s claims.

First, the district court rejected the Commission’s argument that Kean met the first prong of the ADA’s definition of disability (“a physical or mental impairment that substantially limits one or more major life activities,” 42 U.S.C. § 12102(1)(A)). Opinion, R. 73, Page ID # 553. The court expressed skepticism that there was enough evidence to go to a jury on whether Kean’s anxiety disorder satisfied the first element of that prong (“a physical or mental impairment”) but “assum[ed]” that there was. Opinion, R. 73, Page ID # 550. The court concluded, however, that there was insufficient evidence that Kean’s condition “substantially limit[ed] one or more major life activities,” 42 U.S.C. § 12102(1)(A), the second element of that prong. Opinion, R. 73, Page ID ## 550-553.

Second, the district court held that a reasonable jury could not find that Kean met the second prong of the statutory definition of disability (“record of . . . an impairment [that substantially limits one or more major life activities],” 42 U.S.C. § 12102(1)(B)). In analyzing Kean’s “record,” the court considered several documents to which West Meade had access, including Dr. Hashmat’s FMLA certification. Opinion, R. 73, Page ID ## 555-556. With respect to the certification, the court stated that, assuming the certification showed a record of an “impairment” (the first element under this prong), the certification did not show that the impairment was substantially limiting (the second element). O pinion, R. 73, Page ID # 556.

Next, the district court considered the third prong of the statutory definition of disability and concluded that a reasonable jury could not find that West Meade “regarded [Kean] as having . . . an impairment.” Opinion, R. 73, Page ID ## 556-559 (quoting 42 U.S.C. § 12102(1)(C)). The court acknowledged that Jarvis testified that Kean “had some sort of medical issue or an issue where she could not work her job duties at that time.” Opinion, R. 73, Page ID # 557 (quoting Jarvis Dep., R. 42-10, Page ID # 243). But according to the court, “[c]onsidered in context,” Jarvis’s testimony did not establish that she (or West Meade) regarded Kean as having an impairment. Id.

Presumably to illustrate that “context,” the district court quoted lengthy excerpts from Jarvis’s deposition. These excerpts featured Jarvis’s statement that she was not aware that “Kean had a disability” and her assertion that Kean “didn’t present as a person with a disability” but rather as “a person in need of F MLA.” Opinion, R.73, Page ID ## 557-558 (quoting Jarvis Dep., R. 42-10, Page ID ## 244-245). The court further relied on Jarvis’s testimony that Kean mentioned she had anxiety, but that Kean did not say that her anxiety was “incapacitating,” and that “hav[ing] anxiety . . . doesn’t make it a disability.” Opinion, R. 73, Page ID ## 558-559 (quoting Jarvis Dep., R. 42-10, Page ID # 262). The opinion also cited testimony in which Jarvis asked, “Why would [Kean] ask me if she could come back to work if she . . . had a disability?” Opinion, R. 73, Page ID # 558 (quoting Jarvis Dep., R. 42-10, Page ID # 245). And the court quoted Jarvis’s claim that Kean “was terminated for falsified documents,” “not for a disability.” Opinion, R. 73, Page ID # 559 (quoting Jarvis Dep., R. 42-10, Page ID # 262). Without specifying which portions of the quoted excerpts it found significant, the court opined that “[n]othing in Ms. Jarvis’s testimony suggests she regarded Ms. Kean as having an impairment or that she took any action based on a perceived impairment.” Id.

The district court recognized that Jarvis’s narrative in the November 19 Supervisory Action Notice stated, inter alia, that (1) “[o]n 11/18/2015, the employee reported to [Varden] that she had a medical condition of anxiety that required restrictions to be made to her position and she applied for FMLA”; and (2) “[t]he employee was informed that she was being terminated because she was unable to perform her job duties.” Id. (third alteration in original) (quoting Supervisory Action Notice, R. 50-3, Page ID ## 421-422). Apparently focusing exclusively on the first quotation, the court concluded that, when “[c]onsidered in context,” Jarvis “was simply stating what Ms. Kean reported to her.” Id. Without separately addressing the significance of the second quotation explaining how West Meade responded to Kean’s report, the court determined that the narrative did not reflect that Jarvis “regarded Ms. Kean as disabled.” Id.

SUMMARY OF ARGUMENT

On the district court record, a reasonable jury could determine that West Meade “regarded [Carma Kean] as having . . . an impairment” under the ADA, as amended, 42 U.S.C. § 12102(1)(C), based on evidence that decisionmaker Theresa Jarvis terminated Kean “because of an actual or perceived . . . impairment,” id. § 12102(3)(A). A jury could so find because the record supports the conclusion that Jarvis terminated Kean based on her belief that Kean had an anxiety disorder or another serious medical condition that precluded her from working and rose to the level of an impairment.

In particular, a jury could reasonably find that although Kean asked Jarvis about taking occasional, intermittent FMLA leave for her anxiety disorder, Jarvis assumed without foundation that Kean was requesting twelve weeks of continuous leave. Based on that mistaken understanding, Jarvis told Kean that she believed that Kean’s medical condition rendered her unable to perform any work. Jarvis then took numerous drastic actions demonstrating her belief that Kean had a serious medical condition: she immediately sent Kean home before the end of her shift; she told Kean that she could not return to work without clearance from her doctor; and she fired Kean when she was unable to obtain such medical clearance by the following day. Regarded-as coverage under the ADA, as amended, should apply on these facts even if Jarvis was unsure of the particular medical condition that Kean had. In any event, a jury could reasonably conclude that Jarvis terminated Kean “because of” Kean’s anxiety disorder, an actual or perceived impairment.

Given that a reasonable jury could determine that Jarvis terminated Kean because of an actual or perceived impairment, the district court erred in granting summary judgment to West Meade. The court improperly weighed the evidence itself rather than asking whether the evidence presented a sufficient disagreement to require submission to a jury. In addition, it appears that the court required the EEOC to make certain showings that are unnecessary under the amended ADA.

Finally, a reasonable jury could also rely on evidence of pretext in reaching the conclusion that West Meade terminated Kean based on an actual or perceived impairment. Namely, Jarvis asserted a new justification for Kean’s termination at her deposition, but a jury could easily reject that eleventh-hour explanation as contrary to contemporaneous, official accounts of Kean’s termination.

STANDARD OF REVIEW

The district court’s grant of summary judgment is reviewed de novo. Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012). “Summary judgment is appropriate where ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Babb, 942 F.3d at 318 (quoting Fed. R. Civ. P. 56(a)). In assessing whether there is a genuine issue of material fact, the court must “consider the facts in the light most favorable” to the non-moving party and “draw[] all reasonable inferences in [the non-moving party’s] favor.” Id. at 311.

ARGUMENT

West Meade was not entitled to summary judgment on the question whether it regarded Kean as having an impairment.

Under the ADA, as amended in 2008, an individual has a “disability”—and thus is entitled to invoke the central protections of the statute—if, inter alia, she is “regarded [by her employer] as having . . . an impairment (as described in [42 U.S.C. § 12102(3)]).” 42 U.S.C. § 12102(1)(C). Section 12102(3), in turn, specifies that an individual “meets the requirement of ‘being regarded as having . . . an impairment’” if she shows she “has been subjected to an action prohibited [under the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Id. § 12102(3)(A); 29 C.F.R. §§ 1630.2(g)(1)(iii), (l); cf. 42 U.S.C. § 12102(3)(B) (noting defense not pertinent here); 29 C.F.R. §§ 1630.2(g)(1)(iii), 1630.15(f) (same). One reason that Congress established the regarded-as prong of the definition of “disability” was “to express [its] understanding that unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are often just as disabling as actual impairments, and [its] corresponding desire to prohibit discrimination founded on such perceptions.” 29 C.F.R. pt. 1630, app. § 1630.2(l) (citing legislative history). See generally supra pp. 2-5 (outlining statutory and regulatory background).

The district court incorrectly held that no reasonable jury could determine from the record evidence that West Meade regarded its laundry assistant Carma Kean as “having . . . an impairment” within the meaning of the statute. 42 U.S.C. § 12102(1)(C). Contrary to the district court’s ruling, there is more than enough evidence to support the conclusion that West Meade terminated Kean “because of an actual or perceived physical or mental impairment,” id. § 12102(3)(A), under either of two closely related rationales.

First, the record supports the conclusion that West Meade terminated Kean because Theresa Jarvis, the company official responsible for the termination decision, perceived Kean as having a serious but unspecified medical condition that prevented her from working and that rose to the level of an “impairment.” Second, a jury could reasonably conclude that the particular serious medical condition Jarvis perceived Kean to have—and that formed the basis for Jarvis’s decision to terminate Kean—was an anxiety disorder, which qualifies as an “impairment.” In reaching those conclusions, a jury could reject the district court’s interpretation of the record, which, inter alia, failed to view the evidence in the light most favorable to the Commission. In addition, a reasonable jury could find that Jarvis offered a pretextual reason for Kean’s termination, lending additional support for the conclusion that West Meade instead terminated Kean based on an actual or perceived impairment.

A. A reasonable jury could conclude that West Meade regarded Kean as having an impairment based on evidence that the company terminated her because it perceived her to have a serious medical condition that rendered her unable to work.

As noted above, whether Kean is covered by the ADA’s regarded-as provision turns on whether West Meade terminated her “because of an actual or perceived physical or mental impairment,” regardless of whether the impairment substantially limited—or was perceived to substantially limit—any major life activities. 42 U.S.C. § 12102(3). Although the ADA does not define the term “physical or mental impairment,” see 42 U.S.C. §§ 12102, 12103, 12111, the EEOC’s implementing regulations define that term to include “[a]ny physiological disorder or condition . . . affecting one or more body systems” and “[a]ny mental or psychological disorder, such as . . . emotional or mental illness.” 29 C.F.R. § 1630.2(h); cf. 42 U.S.C. § 12205a (giving the EEOC the authority to issue such regulations).

A reasonable jury could find that Jarvis regarded Kean as having an impairment because the record supports the following conclusions: (1) that Jarvis believed—based on Kean’s request for F MLA leave on November 18, 2015—that Kean had a serious medical condition that prevented her from working and that amounted (in Jarvis’s view) to an impairment; and (2) that Jarvis terminated Kean on November 19 because of that perceived impairment.

1. A jury could reasonably find that Jarvis believed Kean had a significant medical condition that prevented her from working, and that this belief amounted to a perception that Kean had an impairment.

a. On the district court record, a reasonable jury could find that, after Kean requested FMLA leave, Jarvis developed a belief that Kean was experiencing a significant medical issue that rendered Kean unable to work. Kean first spoke to West Meade—and, in particular, to Jarvis—about her request for F MLA leave on November 18, 2015. Kean Dep., R. 42-1, Page ID # 134; Jarvis Dep., R. 42-10, Page ID ## 250-251, 262. In support of her leave request, Kean’s family physician, Dr. Aisha Hashmat, submitted a certification to West Meade indicating that Kean had a “serious health condition.” FMLA Certification, R. 50-4, Page ID # 426. Although Kean testified that she sought unpaid intermittent leave for when her anxiety disorder flares up, see supra pp. 7-8, and although Dr. Hashmat’s certification estimated that Kean would need only one to three days of leave each month for flare-ups, FMLA Certification, R. 50-4, Page ID # 426, coverage under the ADA’s regarded-as provision turns on Jarvis’s perception, and Jarvis assumed without basis that Kean was requesting twelve weeks of continuous leave, Jarvis Dep., R. 42-10, Page ID ## 243, 248, 261-262 (also acknowledging that Jarvis “didn’t look at” and only “glanced” at the supporting documentation from Kean’s doctor).

Based on Jarvis’s (mistaken) presumption that Kean sought twelve weeks of continuous leave, Jarvis told Kean on November 18 that “apparently [Kean] had . . . some sort of medical issue or an issue where she could not work her job duties at that time.” Jarvis Dep., R. 42-10, Page ID # 243. Jarvis explained that Kean must have such an “issue” because, otherwise, “the doctor wouldn’t have [written] that, do not work for 12 weeks.” Id. A jury could reasonably rely on this evidence to support a conclusion that Jarvis perceived Kean to have a significant medical issue preventing her from working that rose to the level of an “impairment.” See Lewis v. City of Union City, 934 F.3d 1169, 1181 (11th Cir. 2019) (in post-amendments case, citing employer’s letter placing employee on leave as evidence that employer regarded employee as having an impairment, where letter, among other things, “instructed [the employee] to complete FMLA paperwork, suggesting that [the employer] believed [she] had a medical condition warranting medical leave”); id. (also citing employer’s statement that employee’s “doctor’s letter essentially makes it impossible for you to work or be at work”); Williams v. Tarrant Cty. Coll. Dist., 717 F. App’x 440, 449 (5th Cir. 2018) (in post-amendments case, citing evidence—including FMLA leave request forms submitted to the employer—that employer knew of employee’s impairments and terminated her on account of them in concluding that the employee raised a genuine issue of material fact under the regarded-as standard).

Additional record evidence supports the conclusion that Jarvis believed Kean’s medical issue was sufficiently acute to preclude Kean from working. After Kean requested FMLA leave, she expected to finish her shift working in the laundry, but Jarvis instead removed her from the workplace immediately. Kean Dep., R. 42-1, Page ID # 135. As Kean recalled, Jarvis told her that she “had to leave” “because of what the doctor wrote.” Id.; cf. Jones v. Nissan N. Am., Inc., 438 F. App’x 388, 392, 395, 402 (6th Cir. 2011) (holding, in pre-amendments case, that employer “regarded [employee] as having physical/medical restrictions rendering him unable to do his job” where it “placed [the employee] on a medical leave of absence” because it “drew unfounded inferences” from a workers’ compensation determination that relied on a finding that the employee had certain permanent restrictions).

In addition, during their November 18 meeting, Jarvis told Kean that Jarvis “couldn’t let [Kean] immediately come back to work; she had to go back to the doctor and the doctor had to approve her to come back to work.” Jarvis Dep., R. 42-10, Page ID # 243; see also Supervisory Action Notice, R. 50-3, Page ID # 421. Jarvis explained that she imposed this medical-clearance requirement because the doctor’s statement supporting Kean’s FMLA request indicated that Kean apparently had a “medical issue or an issue where she could not work her job duties at that time.” Jarvis Dep., R. 42-10, Page ID # 243. A reasonable jury could further conclude that Jarvis—not Dr. Hashmat’s office—imposed the additional requirement that Kean undergo another medical examination in order to obtain a work release. See Hashmat Call Log, R. 50-4, Page ID # 429 (showing that Jarvis required a letter stating that Kean “is able to perform job duties without Medical restrictions”). A jury could interpret Jarvis’s demand for such a medical release to denote Jarvis’s belief that Kean’s condition was acute enough to require further medical review. Cf. Lewis, 934 F.3d at 1181 (in post-amendments case, employer’s letter placing employee on leave supported regarded-as coverage, where letter “forbade [the employee] from returning to work until ‘everything is cleared up with your doctor’ . . . and ‘until your doctor releases you for duty’”).

A jury could also rely on Jarvis’s own testimony that she assumed that Kean could not obtain a work release. Jarvis acknowledged that she told Kean she doubted Kean’s doctor would release Kean to full duty, and she expressed the view that it was “highly unlikely that another doctor would have released [Kean]” to return to work. Jarvis Dep., R. 42-10, Page ID ## 248, 262. Moreover, Jarvis claimed at her deposition that Dr. Hashmat told her that she would not release Kean to work “under any circumstances.” Jarvis Dep., R. 42-10, Page ID ## 246, 251. Although the call log maintained by Dr. Hashmat’s office indicated that a representative from that office relayed to Jarvis that the doctor would provide a release (contrary to Jarvis’s testimony), Hashmat Call Log, R. 50-4, Page ID # 429, a jury could rely on Jarvis’s assertion that she believed Dr. Hashmat would not provide a release in concluding that Jarvis viewed Kean as suffering from a significant “medical issue.”

Consonant with this evidence concerning the actions Jarvis took in response to Kean’s request for FMLA leave, Jarvis testified that, at the time of Kean’s leave request and termination, she believed that the FMLA request meant that Kean “couldn’t do her job, any of it,” that “[t]he doctor said . . . she couldn’t do anything,” and that “[Kean] had been taken [by her doctor] off work completely; that means no work, not sitting down, not any, any restrictions.” Jarvis Dep., R. 42-10, Page ID ## 248, 260. Cf. Silk v. Bd. of Trustees, 795 F.3d 698, 708 (7th Cir. 2015) (in post-amendments case, finding genuine issue of fact as to whether employer regarded employee as having an impairment where a decisionmaker stated that “‘we’ assigned [the employee] [fewer] classes in the fall [semester] because ‘we didn’t think [he was] physically capable of handling them’”).

b. Based on the abundant record evidence that Jarvis believed Kean had a significant medical condition that rendered her unable to work, a reasonable jury could conclude that Jarvis perceived Kean as having an impairment, which includes “a physiological disorder or condition . . . affecting one or more body systems” or a “mental or psychological disorder, such as . . . emotional or mental illness.” 29 C.F.R. § 1630.2(h). Even if Jarvis did not assume that Kean suffered from a particular impairment, a jury could still determine from the foregoing evidence that Jarvis perceived Kean as having a condition that was sufficiently serious that it rose to the level of an “impairment” within the meaning of the regulations. Cf. Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283 F.3d 818, 821, 824 (6th Cir. 2002) (holding that under the Tennessee Handicap Act, a jury could conclude the employer “regarded [the employee] as disabled” where the employee was terminated because the decisionmaker “thought [the employee’s] act of intentionally overdosing [on pills] was irresponsible,” even though the decisionmaker “testified that he had no knowledge of any diagnosis of illness”).

Regarded-as coverage under the amended ADA logically extends to situations where the employer takes prohibited action based on an impairment, even where the perceived impairment is not identified with specificity in the mind of the decisionmaker. See, e.g., 29 C.F.R. pt. 1630, app. § 1630.2(l) (“illustrat[ing] how straightforward application of the ‘regarded as’ prong is” by noting that “if an employer refused to hire an applicant because of skin graft scars,” the applicant is covered by the regarded-as prong). Otherwise, an employer would be free to fire any employee who asks for medical leave, or to fire an employee because of a suspected medical condition, as long as the employer avoids asking questions to ascertain the nature of the employee’s medical condition.

The conclusion that a perceived impairment need not be identified with specificity is further supported by congressional directives calling for coverage under the regarded-as provision to be broad, and by an important rationale behind regarded-as coverage. Significantly, Congress specified in the 2008 amendments to the ADA that “[t]he definition of disability . . . shall be construed in favor of broad coverage . . . to the maximum extent permitted by the [statute].” 42 U.S.C. § 12102(4)(A); see also, e.g., EEOC v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018) (interpreting “perceived impairment” “broadly” based on § 12102(4)(A)), cert. denied, 140 S. Ct. 494 (2019). Given that statutory mandate and the limited requirements Congress set forth in the regarded-as provision, regarded-as coverage “should not be difficult to establish” under the amended ADA. 29 C.F.R. pt. 1630, app. § 1630.2(l). And, as the legislative history of the ADAAA explained, Congress’s related amendments to the central statutory provision barring discrimination were meant to relay “an important signal to both lawyers and courts to spend less time and energy on the minutia of an individual’s impairment, and more time and energy on the merits of the case.” Id. § 1630.4 (quoting Joint Statement of Representatives Hoyer and Sensenbrenner on the Origins of the ADA Restoration Act of 2008, H.R. 3195, 154 Cong. Rec. H6067 (June 25, 2008)). Indeed, Congress codified its expectation that “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.” ADAAA, § 2(b)(5) (codified at 42 U.S.C. § 12101 note).

One reason Congress established and amended the regarded-as provisions in the ADA and the 2008 amendments, respectively, was to address discrimination based on “unfounded concerns, mistaken beliefs, fear, myths, or prejudice about disabilities.” H.R. Rep. No. 110-730, pt. 1, at 12-13 (2008).[3] The regarded-as prong is also relevant in situations involving “miscommunications and misinterpretations,” such as where employers “misinterpret information about an employee’s” abilities. Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 190 (3d Cir. 1999). As the Supreme Court explained in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), “the negative reactions of others” stemming from stereotypes, myths, mistaken assumptions, or other unwarranted views about an employee’s actual or perceived impairment may be “as handicapping as are the . . . limitations that flow from” an actual disability. Id. at 283-84, 287; see also ADAAA, Pub. L. No. 110-325, § 2(b)(3) (codified at 42 U.S.C. § 12101 note) (explaining that one purpose of the ADAAA was to “reinstate the reasoning of the Supreme Court in [Arline,] which set forth a broad view” of regarded-as coverage under the Rehabilitation Act of 1973, upon which the ADA was modeled).

Here, therefore, even if Jarvis did not assume that Kean suffered from a particular impairment, recognizing that a jury could conclude that she perceived Kean as having an impairment is consonant with the scope and goals of the regarded-as provision. A jury could reasonably determine that Jarvis reached the conclusion that Kean suffered from a significant medical issue because she mistakenly assumed Kean requested twelve weeks of continuous medical leave, rather than intermittent leave. See supra pp. 9-10. A jury could likewise conclude that Jarvis based her determination that Kean was unable to perform her duties as a laundry assistant on unsupported beliefs and assumptions about the medical condition underlying Kean’s request for leave, rather than on objective evidence pertaining to the specific ways Kean’s particular impairment would affect her work. Indeed, although Jarvis testified that she believed Kean “couldn’t do her job,” she admitted that she did not ask Kean “what she could or could not do,” relying instead on her own assumptions about Kean’s abilities. Jarvis Dep., R. 42-10, Page ID # 248. Jarvis’s erroneous views and unsupported assumptions are precisely the type of “miscommunication,” “misinterpretation,” and unfounded belief that “‘regarded as’ protection” is meant to address. Taylor, 177 F.3d at 190.

2. A jury could reasonably find that West Meade terminated Kean because of Jarvis’s perception that Kean had an impairment.

West Meade’s arguments in district court on the regarded-as issue were limited to the contention that Jarvis did not perceive Kean as impaired.[4] The company did not also argue that Kean’s termination was not “because of” any such perception, even though the statute makes regarded-as coverage turn in part on whether such causation can be established. 42 U.S.C. § 12102(3)(A). The district court nonetheless determined that no reasonable jury could determine that West Meade “took any action” against Kean (presumably including termination) “based on a perceived impairment.” Opinion, R.73, Page ID # 559. Contrary to the district court’s conclusion, a reasonable jury could easily find that Jarvis’s belief outlined above—her perception that Kean had an impairment that rendered her unable to work, even if undefined—was the reason for Kean’s termination on November 19, the day following Kean’s request for FMLA leave.

Three forms completed as part of Kean’s official termination paperwork—which Jarvis and Varden prepared and signed the day of Kean’s termination—each cited Kean’s supposed inability “to perform job duties” as the reason for Kean’s termination. Separation Notice, R. 50-3, Page ID # 419; Change of Status and Separation Form, R. 50-3, Page ID # 420; Supervisory Action Notice, R. 50-3, Page ID # 422. Based on that paperwork and Jarvis’s deposition testimony, a reasonable jury could easily conclude that Jarvis’s belief that Kean could not fulfill her job duties was due to the “medical issue” that caused Kean to request FMLA leave. In particular, in the Supervisory Action Notice—one of those contemporaneous, official documents—Jarvis explained that after Kean reported a “medical condition” that “required restrictions be made to her position” and applied for FMLA leave, Jarvis demanded that Kean obtain a letter from her doctor “releasing her back to work with full duties and no restrictions.” Supervisory Action Notice, R. 50-3, Page ID # 421. Jarvis continued, stating that after speaking with a representative from Dr. Hashmat’s office, she relayed to Kean that Dr. Hashmat would not provide her a medical release because the doctor had not personally seen Kean since her last appointment. Id. Jarvis concluded by explaining that Kean was “informed that she was being terminated because she was unable to perform her job duties.” Id. Supporting this contemporaneous evidence that Jarvis believed Kean’s medical condition rendered her unable to do her job, Jarvis testified extensively at her deposition that Kean’s FMLA request led her to believe that Kean was incapable of performing her job duties. See supra pp. 9-11.[5]

Thus, the record supports the inferences that Jarvis believed that Kean could not do her job because of a perceived impairment, and that West Meade terminated Kean for that reason. See Babb, 942 F.3d at 321 (in post-amendments case, citing, as evidence that employer regarded employee as having a vision impairment, employer’s expressions of concern about employee’s vision); Baum, 764 F. App’x at 547 (in post-amendments case, concluding that a jury could find that employer perceived employee as having an impairment, where employer knew of his medical issues and stated that it fired him because of his “health issues and doctor’s appointments”); cf. Chandler, 283 F.3d at 814, 821.

The close temporal proximity between when Jarvis conceived her belief that Kean had an impairment (November 18) and Kean’s termination (November 19) further supports a causal link. Where an employer takes adverse action shortly after learning of an employee’s impairment (or, in this case, conceiving a belief that the employee had an impairment), that temporal proximity may provide evidence that the employer acted “because of” that impairment, establishing regarded-as coverage. N unies v. HIE Holdings, Inc., 908 F.3d 428, 434-35 (9th Cir. 2018); see also Williams, 717 F. App’x at 449 (in post-amendments case, citing employee’s “terminat[ion] after her . . . FMLA leave[] and request for accommodations” as evidence that contributed to raising a genuine issue of fact on “the causation element of the regarded-as standard”); cf. Bryson v. Regis Corp., 498 F.3d 561, 571, 577 (6th Cir. 2007) (“proximity in time” between employee’s termination and her protected activity—FMLA leave and a request for accommodation—provided “evidence of a causal connection” in establishing prima facie case for employee’s claims that she was retaliated against for protected activity in violation of the FMLA and state civil rights law).

B. A reasonable jury could conclude that West Meade regarded Kean as having an impairment based on evidence that the serious medical condition it perceived her to have was anxiety disorder, which qualifies as an impairment.

In addition to allowing a factfinder to determine that Jarvis terminated Kean because she assumed that Kean had a significant medical issue that precluded her from working, see supra pp. 27-31, 35-39, the record permits a reasonable conclusion that Jarvis believed Kean’s medical issue was an anxiety disorder, which qualifies as an “impairment” under the regulations. At her deposition, Jarvis acknowledged that Kean told her about her anxiety on November 18 when she requested F MLA leave. Jarvis Dep., R. 42-10, Page ID ## 260, 262. And the Supervisory Action Notice discussed above, which was part of Kean’s contemporaneous, official termination paperwork, included Jarvis’s narrative stating that, “[o]n 11/18/2015, [Kean] reported . . . that she had a medical condition of anxiety that required restrictions be made to her position[,] and she applied for F MLA [leave].” Supervisory Action Notice, R. 50-3, Page ID # 421. Read as a whole, the narrative permits a conclusion that Jarvis acted in response to an assumption that Kean had serious anxiety. The narrative explained that, in response to Kean’s “report[] . . . that she had a medical condition of anxiety that required restrictions,” Jarvis required Kean to obtain a medical release and terminated her when she did not obtain such a release based on a belief she could not perform her job duties. Id.; cf. Williams, 717 F. App’x at 449 (citing evidence that employer “was aware of [employee’s] impairments” and terminated her because of those impairments in determining that the employee “met her summary-judgment burden” respecting regarded-as coverage).

Other record evidence also permits the conclusion that the medical issue Jarvis believed Kean had was anxiety disorder or a related mental health condition. For example, Jarvis testified as to her view that “even if [Kean] had anxiety and wanted to come back to work, she needed to see the doctor and the doctor [needed to] write another statement.” Jarvis Dep., R. 42-10, Page ID # 260. And Dr. Hashmat’s call log reflected that Jarvis called Dr. Hashmat’s office and demanded that Kean’s medical release stipulate that “no emotional distress can happen.” Hashmat Call Log, R. 50-4, Page ID # 429.

The anxiety Jarvis perceived Kean to have qualifies as an impairment under the ADA. Again, the record permits a conclusion that Jarvis perceived Kean’s condition to be a significant medical issue, requiring her immediate removal from the workplace pending certification by her doctor that she could return to work “without Medical restrictions and . . . emotional distress.” Id.; see also supra pp. 9-11. And, as noted above, a jury could reasonably conclude that Jarvis ultimately fired Kean based on the assumption that her condition rendered her unable to work, underscoring both that Jarvis thought Kean’s anxiety was extremely serious and also that the causation element of regarded-as coverage was established here. Jarvis Dep., R. 42-10, Page ID ## 247-248, 260-261; see supra pp. 35-38.

A reasonable factfinder could therefore conclude that the anxiety Jarvis perceived Kean to have—and that formed the basis for Jarvis’s termination decision—rose to the level of a “mental or psychological disorder, such as . . . emotional or mental illness.” 29 C.F.R. § 1630.2(h)(2); EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, No. 915.002 (Mar. 25, 1997), 1997 WL 34622315, at *2 (“anxiety disorders” are “mental impairments”); cf. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 574 (4th Cir. 2015) (employee raised issue of fact as to whether her social anxiety disorder constituted a substantially limiting impairment under the first prong of the definition of disability); Skerski v. Time Warner Cable Co., 257 F.3d 273, 275, 277 (3d Cir. 2001) (same, for employee with panic and anxiety disorder).

C. In concluding that West Meade terminated Kean because of an actual or perceived impairment, a jury could reasonably reject the district court’s view of the record.

For the reasons explained above, a jury could reasonably find that West Meade regarded Kean as having an impairment within the meaning of the A DA, as amended. In reaching a contrary conclusion, the district court failed to “consider the facts in the light most favorable” to the Commission and neglected to “draw[] all reasonable inferences in [the Commission’s] favor,” as is required at summary judgment. Babb, 942 F.3d at 311. In addition, the court may have required the Commission to make showings that are unnecessary under the amended ADA.

As explained supra pp. 26-32, in conjunction with other record evidence, Jarvis’s admission that she told Kean that she believed that Kean had a “medical issue or an issue where she could not work her job duties at that time,” Jarvis Dep., R. 42-10, Page ID # 243, could lead a reasonable jury to conclude that Jarvis believed Kean had a serious medical condition rising to the level of an “impairment.” The district court nonetheless discounted this testimony after “[c]onsider[ing] [it] in context.” Opinion, R. 73, Page ID # 559. In doing so, the court committed—or appeared to commit—two fundamental errors.

First, it seems that the district court may have expected the EEOC to make showings that are unnecessary under the regarded-as standard of the amended ADA. In discounting the Commission’s evidence, the court quoted lengthy excerpts from Jarvis’s deposition, including Jarvis’s testimony that she was not aware that “Kean had a disability,” that Kean “didn’t present as a person with a disability,” that “hav[ing] anxiety . . . doesn’t make it a disability,” and that Kean did not say her anxiety was “incapacitating.” Opinion, R. 73, Page ID ## 557-559 (quoting Jarvis Dep., R. 42-10, Page ID ## 244-245, 262). But regarded-as coverage under the amended ADA generally applies when an employer takes a prohibited action “because of an actual or perceived . . . impairment,” regardless of “whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added). Jarvis’s testimony that she did not think Kean had a “disability” is therefore irrelevant; the pertinent question is whether Jarvis thought Kean had an “impairment.”[6] Similarly, the amended ADA does not demand an “incapacitating” impairment to establish regarded-as coverage, as it does not require a “limitat[ion]” on a major life activity, id.; see supra pp. 3-5, and “incapacitation” implies something far more serious than a “limitation.”

Second, to the extent that the district court relied on this and other testimony by Jarvis in discounting the Commission’s evidence, the court impermissibly “weigh[ed] the evidence” and made its own “determin[ation] [of] the truth of the matter” rather than asking “whether the evidence presents a sufficient disagreement to require submission to a jury.” Babb, 942 F.3d at 318 (citation omitted). For example, even if Jarvis’s testimony that she did not think Kean had a “disability” were relevant here, a jury would not be required to credit that testimony, given the bountiful record evidence that Kean’s FMLA-leave request led Jarvis to believe that Kean had a serious medical issue that precluded her from working and that rose to the level of an “impairment.” See supra pp. 26-32; see also Ross v. Campbell Soup Co., 237 F.3d 701, 708-09 (6th Cir. 2001) (holding, in pre-amendments case, that despite supervisor’s testimony that he concluded the plaintiff did not have a disability, other contrary record evidence precluded summary judgment on regarded-as issue).

As another example of the district court’s improper weighing of evidence bearing on the regarded-as question, the court emphasized that Jarvis’s testimony “suggest[ed]” that Kean “was eager to return to work once she learned she would not qualify for paid-time off under the FMLA.” Opinion, R. 73, Page ID # 559. But the court erred in crediting Jarvis’s assertion that Kean sought paid leave, Jarvis Dep., R. 42-10, Page ID # 243, over Kean’s testimony that she expected unpaid leave, Kean Dep., R. 42-1, Page ID # 134. More importantly, the evidence cited above, see supra pp. 9-11, would allow a reasonable jury to conclude that, notwithstanding Kean’s stated desire to return to work, Jarvis regarded Kean as impaired because she told Kean that she thought Kean had a significant medical issue precluding her from working and barred Kean from performing any further work without a medical release.

The district court committed a similar misstep in discounting an excerpt from Jarvis’s narrative in an official document created the day of Kean’s termination. The narrative stated that “[o]n 11/18/2015, [Kean] reported . . . that she had a medical condition of anxiety that required restrictions be made to her position.” Supervisory Action Notice, R. 50-3, Page ID # 421. According to the court, this language did not show that Jarvis regarded Kean as impaired because Jarvis “was simply stating what . . . Kean reported to her.” Opinion, R. 73, Page ID # 559. But in so concluding, the court failed to consider whether a jury could reasonably rely on the narrative and other evidence to reach a different conclusion. Moreover, the court ignored the significance of the remainder of the narrative, which summarized the actions Jarvis took in response to Kean’s “report[]” of a “medical condition of anxiety,” namely demanding that Kean obtain a medical release prior to returning to work and terminating Kean when she was unable to obtain a release. Supervisory Action Notice, R. 50-3, Page ID ## 421-422. Read as a whole, a reasonable jury could easily conclude that the narrative supported the conclusion that Jarvis acted on the assumption that Kean’s report of a “medical condition of anxiety” was accurate—and therefore that Jarvis regarded Kean as having an impairment.

D. A reasonable jury could find additional support for its determination that West Meade terminated Kean based on an actual or perceived impairment by relying on evidence that Jarvis articulated a pretextual reason for Kean’s termination.

Evidence that Jarvis, the decisionmaker, asserted a pretextual reason for Kean’s termination would further support a jury’s reasonable conclusion that West Meade terminated Kean because of an actual or perceived impairment. In regarded-as cases arising under the pre-amendments ADA (which was in effect until 2009, see ADAAA, Pub. L. No. 110-325, § 8 (codified at 29 U.S.C. § 705 note)), this Court emphasized that evidence of pretext “may tend to prove” regarded-as coverage because the “prima facie showing [for regarded-as coverage] . . . turns upon the employer’s state of mind.” Ross, 237 F.3d at 708; see also Watts v. United Parcel Serv., 378 F. App’x 520, 526 (6th Cir. 2010). In those decisions, this Court explained that the relevance of pretext evidence to the coverage question “is a peculiar function of the ‘regarded as’ prong of the ADA,” Ross, 237 F.3d at 708, as such evidence is “generally used in a post-prima-facie case inquiry evaluating motive or discriminatory intent,” Watts, 378 F. App’x at 526.

Similarly, pretext evidence “may tend to prove” whether an employer regarded an employee as having an impairment under the amended ADA (although such evidence is not required to establish coverage). The amendments altered the standard for regarded-as coverage so that an employee is no longer required “to establish the covered entity’s beliefs concerning the severity of the impairment.” 29 C.F.R. pt. 1630, app. § 1630.2(l); see also supra pp. 3-5. But the employer’s motivations and perceptions remain relevant, given that regarded-as coverage turns on whether the employer took a prohibited action “because of an actual or perceived physical or mental impairment.” 42 U.S.C. § 12102(3)(A) (emphasis added); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (explaining that pretext evidence may shed light on causation, motivation, or perceptions, as “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes” (citation omitted)).

On the record below, a reasonable jury could deem pretextual Jarvis’s assertion in her deposition that she terminated Kean because Kean assertedly provided a falsified note from Dr. Hashmat clearing her to return to work. Jarvis Dep., R . 42-10, Page ID ## 243, 247, 251, 253. That West Meade never produced such a note in discovery supports an inference that Jarvis’s falsified-documents justification “had no basis in fact.” Babb, 942 F.3d at 320 (citation omitted). Moreover, West Meade’s contemporaneous, official termination paperwork did not mention receiving any such document from Kean. On the contrary, as explained, the three termination forms cited a different reason for the employment action: Kean’s supposed “[i]nab[ility] to perform [her] job duties.” Supra pp. 12-14. And Jarvis’s letter was consistent with the official paperwork in identifying the termination reason: Kean’s “fail[ure] to provide a release to work” from her doctor. Jarvis Letter, R. 42-11, Page ID # 294. Although Jarvis’s letter noted that Jarvis told Kean that providing a falsified release document was “grounds for termination,” it did not state that Jarvis actually received a written release from Kean, and it did not cite fraudulent documents as a termination reason. Id.

These contemporaneous, official explanations—and Jarvis’s letter—

are evidence that the new justification Jarvis identified at her deposition three years later “did not actually motivate the employer’s action.” Babb, 942 F.3d at 320 (citation omitted); see also Nunies, 908 F.3d at 435 (in post-amendments regarded-as suit, evidence that employer misrepresented reason for rescission of employee’s position was one fact that would allow a jury to infer that employer “forced [the employee] to resign ‘because of’” his impairment). And a jury could also rely on other record evidence that casts substantial doubt on Jarvis’s deposition testimony, including excerpts from Dr. Hashmat’s call log that contradict Jarvis’s assertion that she discussed a fraudulent release with Dr. Hashmat’s practice, and that she spoke directly to the doctor. See supra pp. 15-16. Accordingly, a reasonable jury could conclude that Jarvis’s about-face in her deposition testimony amounted to a “changing rationale for making an adverse employment decision,” which may provide “evidence of pretext.” T hurman v. Yellow Freight Sys., 90 F.3d 1160, 1167 (6th Cir. 1996).

Although Jarvis testified that one of the official termination forms reflected the falsified-documents rationale, Jarvis Dep., R. 42-10, Page ID # 259, a jury could find this claim “unworthy of credence.” Reeves, 530 U.S. at 130 (citation omitted). That form stated that the “[r]eason” for Kean’s termination was that she was “unable to perform job duties,” but Jarvis pointed to a “[c]omment” that said: “Employee attempted to use MD [i.e., a doctor] in Anderson Indian[a] where her sister worked.” Change of Status and Separation Form, R. 50-3, Page ID # 420 (some capitalization omitted). Jarvis claimed at her deposition that this comment meant Kean “was unable to perform her job duties because she provided a falsified MD statement,” and said that “I just didn’t write unable to perform job duties due to a falsified MD statement.” Jarvis Dep., R. 42-10, Page ID # 259.

But a jury could determine that Jarvis invented this unlikely explanation after the fact. A reasonable jury could, for example, interpret the phrase “Employee attempted to use MD in Anderson Indian[a]” to mean simply that Kean had reached out to Dr. Hashmat—whose office is in Anderson—in an effort to comply with Jarvis’s demand for a work-release note, or that Kean sought to use a certification from Dr. Hashmat to support her request for FMLA leave. Moreover, a jury could reasonably doubt that an employer would describe an employee discharged for submitting a falsified document as “unable to perform job duties.”

Jarvis did not assert that the other two contemporaneous, official termination documents reflected her falsified-documents justification, and nothing in those documents supports such a reading. See Separation Notice, R. 50-3, Page ID # 419; Supervisory Action Notice, R. 50-3, Page ID ## 421-422. At her deposition, Jarvis offered an explanation for omitting her falsified-documents rationale from the official termination paperwork: She claimed that she did not wish to jeopardize Kean’s unemployment insurance benefits and that she believed the official termination paperwork would be forwarded to the state unemployment insurance office and the EEOC. Jarvis Dep., R. 42-10, Page ID ## 259-260. Again, a jury could find this explanation “unworthy of credence” because it is unlikely that a decisionmaker would omit the real reason for termination—and substitute a different reason—in official paperwork, including a state-government form.

In short, a reasonable jury could find it impossible to reconcile Jarvis’s deposition testimony with contrary record evidence that she fired Kean because she believed Kean had an impairment without piling implausible inference upon implausible inference. A jury could thus deem pretextual Jarvis’s explanation for Kean’s termination that she advanced during this litigation, providing additional support for the conclusion that Jarvis actually fired Kean because of an actual or perceived impairment.

CONCLUSION

For the foregoing reasons, the Commission urges this Court to reverse the district court’s decision holding that no reasonable jury could conclude that Kean met the regarded-as prong of the definition of disability under the amended ADA. We ask this Court to remand for further proceedings.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

s/ Anne W. King_______________

ANNE W. KING

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Fifth Floor

Washington, D.C. 20507

(202) 663-4699

anne.king@eeoc.gov

Dated: April 24, 2020

[1] Because this case was decided on summary judgment, the facts herein are presented in the light most favorable to the Commission, the non-moving party. See Babb, 942 F.3d at 311.

[2] Dr. Hashmat’s call log suggests that it was Jarvis, not Dr. Hashmat, who demanded that the release be preceded by another examination. The call log indicated that, in a conversation on November 19, Jarvis “stat[ed] [patient] needs to be re assessed by doctor releasing her to work in order for a letter to be accepted” and that the “letter needs to state that [patient] is able to perform job duties without Medical restrictions and no emotional distress can happen.” Hashmat Call Log, R. 50-4, Page ID # 429. The log also reflected that, in a November 20 conversation, in which Dr. Hashmat’s representative relayed to Jarvis that the doctor would provide a release, Jarvis told Dr. Hashmat’s representative “that [Kean] needed to be seen first to get this clearance.” Id.

[3] However, an employee is not required to show that “myths, fears, or stereotypes about disability motivated the employer’s decision” to establish regarded-as coverage. 29 C.F.R. pt. 1630, app. § 1630.2(l).

[4] To be precise, West Meade asserted that the Commission could not establish regarded-as coverage because it could not show that West Meade “perceive[d] Kean as having a medical impairment that substantially limited any of her life activities.” West Meade Mem. Supp. Mot. Summ. J., R.43, Page ID # 315 (emphasis added). West Meade thus erroneously invoked the “regarded as” definition of “disability” under the pre-amendments ADA. See also supra pp. 3-5 (explaining that the pre-amendments regarded-as standard involved a substantial-limitation requirement that was removed by Congress in 2008).

[5] This was not the first time West Meade expressed concerns about employing an individual with an impairment. When Kean applied for her position at West Meade, she completed an application form that asked whether the applicant “Needs accommodation to perform job tasks.” Kean Application Form, R. 42-2, Page ID # 195. Although not directly at issue in this case, the ADA generally prohibits employers from “mak[ing] inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” 42 U.S.C. § 12112(d)(2); 29 C.F.R. § 1630.13(a); see also EEOC, ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, No. 915.002 (October 10, 1995), 1995 WL 1789073, at *3 (“In general, an employer may not ask questions on an application . . . about whether an applicant will need reasonable accommodation for a job.”).

[6] In any event, there is no reason to think that Jarvis—who is not an attorney—used the word “disability” in the same sense that term is used in the ADA.