STATEMENT OF JURISDICTION

The EEOC brought this enforcement action under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 12117(a). The district court entered final judgment on July 21, 2021, and the EEOC filed a timely notice of appeal on September 17, 2021. ROA.415, 424-25 (RE.7-9); see 28 U.S.C. § 2107(b)(2).[1] This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

1. Whether the district court erred in holding that no reasonable jury could find Cash Depot unlawfully discriminated against Galloway based on his disability when Cash Depot’s only stated reason for terminating him was a temporary lifting restriction that was compatible with his job description, capable of being accommodated in multiple ways, and unknown to Cash Depot until after it hired his replacement.

2. Whether the district court abused its discretion in curtailing, without explanation, the EEOC’s discovery into how Cash Depot made the decision to terminate Galloway without exploring possible accommodations.

3. Whether this Court should reassign this case to a different district judge on remand.

STATEMENT OF THE CASE

I. Course of Proceedings

The EEOC brought this ADA action against Cash Depot in September 2020. ROA.7-14. The complaint alleged that Cash Depot engaged in unlawful discrimination by (1) firing Galloway because of his disability after he suffered a stroke that left him with a temporary twenty-five-pound lifting restriction and (2) failing to reasonably accommodate Galloway’s disability. ROA.7-14.

After refusing to let the EEOC depose the people responsible for the decision to fire Galloway, the district court granted summary judgment for Cash Depot. ROA.140, 410-14, 528-30 (RE.10-15, 52-54). In its brief opinion, the district court “g[a]ve deference to Cash Depot’s judgment” that Galloway’s lifting restriction was both inconsistent with his essential job functions and incapable of reasonable accommodation. ROA.412-13 (RE.13-14). And although the evidence established that Cash Depot sought and hired a replacement for Galloway after learning of his stroke but before learning of the lifting restriction that supposedly motivated his termination, the district court held that this timeline did not “automatically” suggest “bad faith.” ROA.413 (RE.14).

This appeal followed. ROA.424-25 (RE.7-8).

II. Statement of the Facts

A. Galloway’s Work with Cash Depot

Cash Depot is a company that installs and services Automated Teller Machines (ATMs) and air/vacuum machines for businesses throughout the United States. ROA.188; see ROA.154. Galloway began working for Cash Depot in July 2018 as one of two Field Service Technicians responsible for a geographic region comprised of Houston and a roughly 150-mile surrounding radius. ROA.43, 154. During Galloway’s employment, Cash Depot also employed five “float” technicians who would travel across the country to fill in as needed for regionally based technicians who were ill or on vacation. ROA.158-59.

During much of the relevant timeframe here, Galloway reported to Regional Supervisor John Murphy. ROA.154-55. Murphy testified that a Field Service Technician’s “primary job” is installing, repairing, and removing ATMs and air machines, as well as removing coins from air machines’ collection boxes and depositing the retrieved coins with an armored car service. ROA.154. According to Galloway’s job description, “successfully perform[ing] the essential functions of th[e] job” required an ability to “lift up to 20 lbs” and to “carry [a] tool bag, keypad and modem weighing 2-5 lbs for 20-40 feet.” ROA.332 (RE.46). The description also listed “[p]ull[ing] & mov[ing] 400lb-900lb machines on a dolly and pull[ing] [them] into a van with a winch” among the job’s “physical demands.” ROA.332 (RE.46).

Galloway testified that he spent at least half his typical workday driving to and from assignments, that his assignments chiefly “related to air machines and consisted of light repairs and coin empties,” and that he also sometimes serviced ATMs. ROA.220 (RE.17). None of these duties, Galloway testified, ever required him to lift more than twenty-five pounds. ROA.220 (RE.17). He explained that air machines “were made up of separate parts which were assembled on site and disassembled on site” and that his ATM work mainly involved light tasks like “eliminating bill jams, fixing malfunctioning keyboards, and providing computer updates.” ROA.220 (RE.17). As for coin empties, Galloway explained, they “did not require that a full coin drawer be removed and moved or carried” because the drawers “slid out to allow for removal of coins by scooping them by hand until the drawer was light enough to lift.” ROA.220 (RE.17). And loading the coins onto an armored car did not require lifting more than twenty-five pounds either, Galloway said, because any haul exceeding that weight “could be distributed to two or more coin bags.” ROA.220 (RE.17). Indeed, he testified, he “did, in fact, utilize multiple bags for this task during [his] employment with Cash Depot.” ROA.225 (RE.22).

Testimony from Cash Depot’s witnesses corroborated Galloway’s account. Regional Supervisor Murphy agreed that driving “certainly could” take up at least half of a Field Service Technician’s workday and that “most of the work” consisted of “[c]oin empties and repairs.” ROA.270, 294. Murphy’s supervisor, Field Services Manager Bradley Mueller, similarly testified that the “[m]ajority” of a Field Service Technician’s work was “cash replenishment and servicing of the ATMs and the air machines.” ROA.321-22; see ROA.158. According to Murphy, the only object weighing more than twenty-five pounds that a Field Service Technician might need to lift during repairs was an ATM’s cash dispenser, which Murphy “believe[d]” to “weigh[] close to 30 pounds.” ROA.269; see ROA.287-88 (RE.39-40). As for coin empties, Murphy agreed a technician could scoop coins out of an air machine without fully removing its coin box and that, “[o]ther than potentially the bags of quarters once they are filled up,” no aspect of the task involved lifting twenty-five pounds or more. ROA.286-87 (RE.38-39).

While Galloway’s job duties also included installing and removing ATMs and air machines, Galloway testified without rebuttal that such tasks “were rare and usually scheduled in advance.” ROA.220 (RE.17); see ROA.307, 405 (Cash Depot’s witnesses agreeing that such projects were prescheduled). Galloway also testified that Cash Depot often assigned such “[l]arge projects” to teams of specialized employees called Project Technicians, and not to “individual” Field Service Technicians. ROA.221 (RE.18). All told, Galloway testified that, during “seven months of employment with Cash Depot, [he] installed only one air machine, replaced one air machine base, and unbolted and slid an ATM … just a few feet on one occasion.” ROA.220-21 (RE.17-18).

Here too, Cash Depot’s witnesses told a similar story. Murphy agreed that Project Technicians do “much more” installation than Field Service Technicians, ROA.266, and he testified that he was “not aware” of any reason relatively infrequent installation and removal tasks could not be assigned to workers without lifting restrictions, ROA.290 (RE.42). In fact, Murphy testified, Cash Depot had successfully restructured the work assignments of Field Service Technicians to accommodate such restrictions in the past. ROA.274-78 (RE.33-37); see ROA.279-83. And Regional Supervisor Joshua Kolodziej—Murphy’s eventual successor as Galloway’s direct supervisor—testified that a worker could “take some of the weight off” during heavier jobs in any event by using tools like a dolly or by enlisting another worker’s aid. ROA.404-05; see ROA.154.

Finally, there was evidence that a few other miscellaneous job tasks may have required occasional lifting. For example, Mueller testified that a Field Service Technician might sometimes need to move “random” obstacles, like a stray trash can, upon arriving at a jobsite. ROA.176. And Murphy and Mueller testified that Cash Depot sometimes had Field Service Technicians fill an air machine’s base with concrete to prevent theft. ROA.155, 177-78. Galloway, though, testified that he never received such an assignment and that a third party may have been providing this service in the Houston area. ROA.221 (RE.18); see ROA.178 (Mueller admitting he did not recall the Houston Field Service Technicians ever being asked to install an antitheft base); ROA.381 (RE.47) (Murphy testifying that Cash Depot contracted out some of these assignments).

B. Galloway’s Stroke, Medical Leave, and Ultimate Termination

In February 2019, Galloway had a stroke at home while off duty. ROA.43. On March 4, Galloway emailed Murphy to say that he was “doing much better” but that his doctors thought it “premature” for him to return to work. ROA.161. Although the doctors could not yet “give a time frame” for his recovery, Galloway said that he “believe[d]” it would be a matter of “days” before he could return and that he wanted to know how to “go about short term disability” in the meantime. ROA.161.

Galloway followed up two days later by sending Human Resources (HR) a doctor’s note saying that he was “undergoing further outpatient treatment” and that he would have a follow-up on April 2 to reassess his ability to return to work. ROA.162; see ROA.44. Darlene Lassiter, Cash Depot’s HR Director, replied on March 13 that Cash Depot would put Galloway on unpaid leave and hold his job open for him until April 3. ROA.232-33 (RE.26-27). But Lassiter cautioned that Cash Depot could not “guarantee” his position would stay available if Galloway was “unable to return to work at that time, with or without restrictions.” ROA.232 (RE.26).

During Galloway’s medical leave, two of Cash Depot’s “float” technicians covered for him. ROA.166, 171. Kolodziej testified that this was the “usual procedure” for providing coverage during an employee’s absence. ROA.330. While Kolodziej testified that he “would assume” the need to provide this coverage negatively impacted Cash Depot, he had no “specific facts” about any particular impact Galloway’s absence had on Cash Depot’s finances or ability to serve its clients. ROA.326-27.

Meanwhile, Cash Depot had posted a job opening for a new Houston Field Service Technician on March 6—the day it received Galloway’s doctor’s note, and a week before Lassiter assured Galloway that Cash Depot would hold his position open until at least April 3. ROA.44. On the last day of Galloway’s leave, April 2, Cash Depot offered the advertised position to Michael Negron, and Negron accepted. ROA.44. Murphy testified that Cash Depot hired Negron “as a replacement for Mr. Galloway.” ROA.273 (RE.32); see ROA.45 (parties’ joint chronology referring to Negron as “Galloway’s replacement”).

A few hours after Negron’s hire, Galloway emailed Murphy to report that his doctors had cleared him to return to work, subject to a twenty-five-pound lifting restriction. ROA.235 (RE.28); see ROA.44-45. Despite the restriction, Galloway told Murphy that he could “do coin empties and do repairs, which was most [of] the work.” ROA.235 (RE.28). Galloway also reported that the doctors had found two aneurysms that might require surgery and a brief recovery period—“only two days if [surgery] goes w[e]ll”—but that he was “doing better th[a]n expected” overall. ROA.235 (RE.28). The next day, Galloway followed up with a doctor’s note confirming his ability to work, apart from “job functions or duties that involve lifting, pushing or pulling items greater than 25 lbs.” ROA.236 (RE.29).

Roughly thirty minutes after Galloway submitted his doctor’s note, Lassiter terminated him over the phone. ROA.224 (RE.21). Galloway testified that he told Lassiter he could do 98-99% of his job duties but that Lassiter said he could not return unless he could do 100% of them. ROA.224 (RE.21). A follow-up letter Lassiter sent Galloway the same day confirmed that, “due to the nature of [Galloway’s] job and the unknown [timing] of when [he would] be able to return to full duty,” Cash Depot would “not be able to accommodate [his] restrictions.” ROA.237 (RE.30).

Later that day, Galloway sent Murphy an email reiterating that he could do “most of the job except installs” and stating that the lifting restriction would “not be forever” because his doctor “expect[ed] a full recovery at some near date.” ROA.238. As Galloway later testified, he “understood the [lifting] restriction to be a precaution implemented by [his] physician until [he] was able to see a neurologist.” ROA.224 (RE.21). By May 16—just over a month after Cash Depot fired him—Galloway’s doctors cleared him to work without restriction. ROA.239.

C. Litigation

Following an investigation, the EEOC filed suit, claiming Cash Depot had violated the ADA by engaging in unlawful discrimination. ROA.7-14. Specifically, the EEOC claimed Cash Depot had (1) fired Galloway because of his disability or record thereof and (2) failed to reasonably accommodate Galloway or to engage in an interactive process aimed at assessing potential accommodations. ROA.11.

Soon after the EEOC filed its complaint, the district court held an initial case management conference. See ROA.435-56. The court offered its initial view of the case at the conference’s outset:

As I understand it, the [EEOC] is upset because Cash Depot did not talk to [Galloway] before they fired him…. The case has very clear facts.… The job description says an average of 50 pounds of coins and small bills…. And [Galloway] presented with a doctor’s note that said he can’t do that. It doesn’t require conversation. He hands them a note. They hand him a note. Because driving around town and lifting bags of coins is an integral part of his job. They didn’t do it. There’s no malice. There’s no trickery.

ROA.436-37 (RE.49-50). When EEOC counsel corrected the record by explaining that the job description at the time of Galloway’s termination listed a twenty-pound, not fifty-pound, lifting requirement, the district court replied, “So what?... [I]f they really wanted to get rid of disabled people, they would set it at ten pounds and above or something that would make it impossible. They didn’t do that.” ROA.437-38 (RE.50-51). Moreover, the district court went on, Galloway “shouldn’t be driving anything, much less a truck,” because of his aneurysms. ROA.444.

Discussion then turned to discovery. After Cash Depot’s counsel identified Murphy as the person with the “most knowledge” about the case, the district court invited Cash Depot to “try his giving a statement before [the EEOC] decide[s] to run up the cost of the deposition.” ROA.446. When asked directly whether the EEOC would be allowed to depose Murphy, the district court replied, “Perhaps, but let’s try to do it cheap and easy.” ROA.449. Counsel for the EEOC also identified HR Director Lassiter as another person with “knowledge and information about the reasons why Mr. Galloway was terminated,” but the district court replied, “I don’t know whether she has knowledge or she heard people talking about it, which doesn’t count.” ROA.447-48.

The district court concluded the conference by stressing the need to “be done promptly because we’ve got to get on with this.” ROA.453. Addressing EEOC counsel, the district court continued:

And you’re not responsible for the way they run the office; but if the EEOC must sue, it’s got to meet its responsibilities. And I’m not fussing at you because you’re not in control. Nobody is in control as near as I can tell. But either we get on with you-all doing your job or it goes away because we can’t do that to employers everywhere.

ROA.453. Ultimately, the district court entered a discovery order authorizing Cash Depot to depose Galloway and not authorizing the EEOC to depose anybody. ROA.67.

The district court held another conference at the end of document production. See ROA.464-97. There, counsel noted that they were waiting to receive Department of Veterans Affairs (VA) documents related to Galloway’s November 2020 classification as totally and permanently disabled for veterans’ benefits purposes. ROA.467, 470; see ROA.184-85. Upon hearing of Galloway’s classification, the district court opined that it would prove fatal to his ADA claim: “You can’t swear to the United States that you’re totally and permanently disabled, acquire funds for it, and then turn around and say, no, you could[] work.” ROA.470. Counsel for the EEOC attempted to explain that, under VA regulations, total and permanent disability is distinct from unemployability, but the district court replied, “[T]here is a real world out there apart from our wonderful bureaucracies,” ROA.470, and further stated that, in its view, total and permanent disability “means you can’t do anything,” ROA.478. When EEOC counsel tried directing the court to evidence that Galloway was able to perform his job and that Cash Depot had not explored potential accommodations with him, the court replied, “[T]here is no requirement in the statute that they have to sit down and talk about this and have a conversation with him…. [T]hey had nothing to give him. And so, maybe the only thing that they could do is … free[] him for other opportunities.” ROA.487-88.

At the end of the conference, EEOC counsel requested the court’s permission to depose Murphy, Mueller, and Kolodziej. ROA.488-89. The court first authorized the EEOC to depose Murphy and Mueller, encouraging counsel to “do them both the same day” and cautioning that “[i]t shouldn’t take long” because “the government cannot waste these men’s time or the time and high price of the company’s lawyers.” ROA.492-93. And the court then agreed to allow the EEOC to depose Kolodziej if the EEOC still believed it necessary after deposing Murphy and Mueller. ROA.494; see ROA.95 (discovery order).

The EEOC took Murphy, Mueller, and Kolodziej’s depositions and learned that none of the three had participated in the decision to fire Galloway. See ROA.124 (Mueller’s testimony that he “wasn’t involved in the process to let [Galloway] go or made that final decision”); ROA.126 (Murphy denying that he was “involved in the decision to terminate [Galloway]”); ROA.134 (Kolodziej denying that he “kn[e]w who made the decision to terminate Mr. Galloway”). Instead, Mueller and Murphy testified that the decisionmaker had been Cash Depot’s Chief Executive Officer (CEO) and President, Dave Charles, Sr., along with Lassiter and now-deceased Chief Operating Officer Kevin Shaver. ROA.119-22, 130-31. Although Mueller testified that he attended the meeting where Charles, Lassiter, and Shaver decided to fire Galloway, he did not “remember any details from the conversation” or know the decisionmakers’ reasons. ROA.120; see ROA.123.

The EEOC notified the district court about this situation in a joint status report and sought the court’s permission to depose Charles.^{^[2]} ROA.100-01. After the court entered a discovery order allowing the EEOC to serve up to ten interrogatories on Charles and saying nothing about a deposition, the EEOC followed up with a formal motion for permission to take a deposition. ROA.106, 108-16. The court denied the motion without explanation. ROA.140 (RE.10).

At a subsequent status conference, the EEOC then asked the district court for permission at least to depose HR Director Lassiter. ROA.528 (RE.52). The district court, however, denied the request and limited the EEOC to asking Lassiter a single written question. ROA.528-29 (RE.52-53). According to the district court, HR “delivered the message and the paperwork, but the decision [was] not made by” Lassiter. ROA.528 (RE.52). Moreover, the district court believed the EEOC had no “need to talk to anybody” in HR in any event because “all” the EEOC was “entitled to” was Galloway’s written personnel file and “[i]t doesn’t say in there anywhere that let’s get rid of this guy because he’s sick.” ROA.530-31 (RE.54-55).

Cash Depot then moved for summary judgment. ROA.141-52. It argued in relevant part that Galloway was ineligible for relief as a matter of law because the evidentiary record established beyond dispute that his lifting restriction was both inconsistent with his essential job functions and incapable of reasonable accommodation. ROA.148-50. In its opposition, the EEOC replied that there were fact disputes on both points and identified three reasonable accommodations Cash Depot could have made for Galloway: letting him split coin collections into multiple bags, restructuring his work to avoid heavy tasks like installations or removals, or extending his leave. ROA.198-205. In the alternative, the EEOC argued that the district court should defer resolution of the summary-judgment motion pursuant to Federal Rule of Civil Procedure 56(d) to allow for further discovery. ROA.211-13.

With its reply brief, Cash Depot submitted a new declaration from Kolodziej. ROA.351-54. Reacting to one of the EEOC’s proposed accommodations, the declaration stated that coins retrieved from air machines must go into “a single bag that is serialized so it can be properly tracked for deposit.” ROA.352. The declaration also described additional purportedly “essential” job functions Kolodziej viewed as inconsistent with a twenty-five-pound lifting restriction. ROA.351-53. As well as the job tasks described supra at 3-8, the declaration explained that performing monthly inventories of company vans and repairing or replacing an air machine’s compressor or top compartment might require lifting more than twenty-five pounds.[3] ROA.352-53.

III. District Court’s Decision

The district court granted summary judgment for Cash Depot. ROA.410 (RE.11). Concluding that “Galloway is disabled” under the ADA, the court identified the case’s central question as “whether Galloway was able to do the essential functions of a field service technician with or without a reasonable accommodation.” ROA.412 (RE.13). The court then held that no reasonable jury could answer in the affirmative. ROA.412-13 (RE.13-14).

The court first held that Galloway’s essential job functions indisputably required him to lift more than twenty-five pounds. ROA.412 (RE.13). It noted that the job description required only the ability to lift twenty pounds, but it did not find the description “conclusive” and instead gave “deference to Cash Depot’s judgment” that the job in fact required heavier lifting. ROA.412 (RE.13). The court further held that the EEOC “[could not] challenge” the testimony of Cash Depot’s “more experienced workers” on this point with “Galloway’s own speculation” about how much his job had typically required him to lift. ROA.412 (RE.13).

The court then held that no reasonable accommodations were possible. ROA.412-13 (RE.13-14). As for splitting coin removals into multiple bags, the court opined that “[t]his could lead to stolen bags as they would be left unattended.” ROA.412 (RE.13). As for restructuring Galloway’s work to avoid installations and removals or extending his leave, the court observed that “Cash Depot is not required to hire others to cover or do parts of Galloway’s job.” ROA.412-13 (RE.13-14). And the court assigned no relevance to Cash Depot’s failure to explore these or any other possible accommodations with Galloway because “[t]he whole onus is not on Cash Depot” to initiate discussion around accommodations and because the court believed no realistic accommodation existed in any event. ROA.413 (RE.14). Indeed, the court speculated, Galloway may even have had “other potential limitations” beyond his lifting restriction that could have adversely “affect[ed] [his] ability to do the job.” ROA.413 (RE.14).

Finally, the court held no inference of discrimination could reasonably be drawn from the fact that Cash Depot sought and hired a replacement for Galloway after learning of his stroke but before learning of the lifting limitation that supposedly motivated his termination. ROA.413 (RE.14). According to the court, this timing did not “automatically” reflect “bad faith,” and Cash Depot was “not expected to sit on its hands and wait to see if Galloway might be able to return to work.” ROA.413 (RE.14).

The district court did not address the EEOC’s Rule 56(d) argument that a summary-judgment ruling would be premature absent further discovery.

STANDARD OF REVIEW

This Court reviews the district court’s grant of summary judgment de novo and may affirm only if Cash Depot has shown that (1) “there is no genuine dispute as to any material fact” when all evidence is viewed in the light most favorable to the EEOC, and (2) it is “entitled to judgment as a matter of law.” EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). If the “evidence is such that a reasonable jury could return a verdict” for the EEOC, “[a] genuine dispute of material fact exists,” making summary judgment inappropriate. Id. (first quoting Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)).

This Court reviews the district court’s discovery rulings for abuse of discretion. Miller v. Sam Houston State Univ., 986 F.3d 880, 891 (5th Cir. 2021). It similarly applies an abuse-of-discretion standard to the district court’s implicit denial of the EEOC’s Rule 56(d) motion for further discovery prior to summary judgment. Am. Fam. Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (per curiam). While “broad discretion is afforded to the district court when deciding discovery matters,” reversal is warranted if a discovery decision “was ‘arbitrary or clearly unreasonable’” and thus affected a party’s “[s]ubstantial rights.” Miller, 986 F.3d at 891 (quoting Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 428 (5th Cir. 2005)).

SUMMARY OF ARGUMENT

The district court erred in granting summary judgment for Cash Depot on both the EEOC’s claims. The record supports a reasonable finding that Galloway was qualified to perform his essential job functions but that Cash Depot nonetheless fired him because of his disability. And the record supports the further finding that Cash Depot did so without offering—or even exploring—multiple readily available accommodations.

In holding that Galloway’s twenty-five-pound lifting restriction disqualified him for his job as a matter of law, the district court discounted ample evidence that his restriction was consistent with the job’s demands. Cash Depot’s own written description of Galloway’s essential job functions required only that Galloway be able to lift twenty pounds, and testimony from both Galloway and Cash Depot’s witnesses confirmed that the job rarely, if ever, required lifting that exceeded his capabilities. Although the district court deferred instead to unspecified testimony from Cash Depot’s witnesses, resolution of disputed facts is improper on summary judgment.

Alternatively, a jury could find Galloway qualified because Cash Depot could reasonably have accommodated his restriction. There was evidence that Cash Depot could have allowed Galloway to split coin retrievals into multiple bags, restructured Galloway’s work to avoid the installations and removals he rarely performed, or extended his unpaid leave for a few weeks until his restriction was lifted. In holding each of these possibilities unreasonable as a matter of law, the district court repeatedly failed to construe the evidence in the EEOC’s favor, as it was required to do on summary judgment.

The district court’s other reasons for granting summary judgment were flawed as well. In rejecting the discriminatory termination claim, the district court noted that the record did not compel a finding that Cash Depot acted with bad faith. But bad faith is not an element of a discrimination claim, and the proper question on summary judgment in any event is whether a jury could find discrimination. In rejecting the failure-to-accommodate claim, meanwhile, the district court observed that Galloway did not tell Cash Depot exactly what accommodations to offer. But this Court’s precedents establish that once an employer knows (as Cash Depot did) that an employee seeks accommodation, it must work with the employee to identify possible options. Rather than opening such a dialogue here, Cash Depot terminated Galloway within a day of his accommodation request.

Because multiple fact disputes preclude summary judgment, this Court should reverse. But even should this Court believe that Cash Depot is entitled to judgment as a matter of law on the existing record, reversal is still required because the district court abused its discretion in arbitrarily curtailing discovery. The district court barred the EEOC from deposing individuals with unique firsthand knowledge of the reasons for Galloway’s termination, and it gave no reasons for doing so. This arbitrary bar reflects an improperly illiberal approach to discovery that has led this Court to reverse this district judge many times before.

Finally, we respectfully request that this Court order this case to be reassigned to a different district judge on remand. The manifold flaws pervading the barely-five-page summary-judgment opinion risk creating the impression that preexisting views of the case’s merits, rather than close consideration of the evidence and the governing legal standards, drove the outcome. And examination of the proceedings below only reinforces that concern. From the case’s first conference, the district judge opined that Galloway was incapable of working, that Cash Depot’s actions were appropriate, and that EEOC enforcement actions needlessly burden employers. Those fixed views—voiced prior to any discovery, frequently reiterated, and potentially influencing the district court’s legal rulings—raise doubt that this case will be impartially adjudicated if not reassigned.

ARGUMENT

I. The District Court Disregarded Material Fact Disputes that Preclude Summary Judgment on the Existing Record.

In granting summary judgment, the district court drew improper inferences in Cash Depot’s favor and disregarded ample evidence that would permit a reasonable jury to find for the EEOC. Reversal is required if this Court concludes the EEOC could reasonably prevail on either its discriminatory termination claim or its claim that Cash Depot failed to provide Galloway reasonable accommodation. As explained below, the existing record could support a reasonable judgment for the EEOC on both claims.

A. A Reasonable Jury Could Find that Galloway Was Qualified to Perform His Job’s Essential Functions and that Cash Depot Nonetheless Fired Him Due to His Disability.

The ADA provides, in relevant part, “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to … [the] discharge of employees, … and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The statute defines “qualified individual,” in turn, as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8).

To make out a prima facie case of discriminatory termination, the EEOC must show that Galloway (1) “has a disability,” (2) was “qualified” for his job, and (3) was fired “on account of his disability.” LHC Grp., 773 F.3d at 697 (quoting Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999)). After the EEOC does so, Cash Depot “must articulate a legitimate, nondiscriminatory reason” for firing Galloway. Id. at 694. After that, “the burden shifts back to the EEOC to show that [Cash Depot’s] proffered reason is pretextual.” Id.

The district court recognized that “Galloway is disabled” within the meaning of the ADA. ROA.412 (RE.13). But it granted summary judgment for Cash Depot because it believed that (1) any reasonable jury must find that Galloway’s lifting restriction disqualified him from his position as a Field Service Technician and (2) the evidentiary record did not establish that Cash Depot’s proffered reasons for firing Galloway were “automatically bad faith.” ROA.412-13 (RE.13-14). Neither rationale is sound.

1. Galloway’s Lifting Restriction Was Both Compatible with His Job Description and Capable of Accommodation.

At the time Cash Depot fired Galloway, a bar on pulling, pushing, or lifting more than twenty-five pounds was the only limitation his doctor had placed on his ability to work as a Field Service Technician.^{^[4]} ROA.236 (RE.29). Galloway was qualified for his position either if (1) he “could perform [its] essential functions” despite that limitation or if (2) “a reasonable accommodation of his disability would have enabled him” to do so. Thompson v. Microsoft Corp., 2 F.4th 460, 467 (5th Cir. 2021) (quoting Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017)). Contrary to the district court’s opinion, the evidence could support a reasonable finding of qualification under either theory.

To begin, a jury could reasonably find that Galloway was qualified because he was able to perform his essential job functions with no accommodation at all. Notably, the job description in effect during Galloway’s employment specified that the job required lifting “up to 20 lbs” and carrying items “weighing 2-5 lbs.” ROA.332 (RE.46); see 42 U.S.C. § 12111(8) (providing that a written job description “shall be considered evidence of the essential functions of the job”). A reasonable jury could easily infer that Cash Depot’s own job description accurately delineated the upper limits of the job’s lifting requirements. See Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 682 (5th Cir. 1996) (giving “substantial deference” to an employer’s written description of its own job requirements).

Although the district court dismissed the job description as “not conclusive,” ROA.412 (RE.13), evidence need not be “conclusive” to defeat summary judgment. It need only be capable of supporting a reasonable verdict for the nonmoving party. See LHC Grp., 773 F.3d at 694. What is more, cases cautioning that judicial “deference” to an employer’s job description “is not absolute” emphasize that an employee may challenge a description as being overinclusive and as listing requirements that are not actually essential in practice. Id. at 698. Nothing in this caveat suggests that an employer with every incentive to correctly describe its baseline expectations to job applicants may then disavow its own description in litigation as underinclusive of the job’s actual demands.

Beyond the job description, Galloway’s testimony also supports a reasonable finding that his essential job functions did not require lifting twenty-five pounds. Galloway testified that his main duties consisted of driving, emptying coin boxes, and doing light repairs, and that these tasks never required him to lift more than twenty-five pounds. ROA.220 (RE.17). In seven months of employment, Galloway reports, he performed heavier tasks only three times: he “installed only one air machine, replaced one air machine base, and unbolted and slid an ATM … just a few feet on one occasion.” ROA.220-21 (RE.17-18). As Galloway told Lassiter, he believed he could do 98-99% of his work despite his restriction. ROA.224 (RE.21); see ROA.238 (Galloway’s email to Murphy confirming he could do “most of the job”). Rather than disputing him on this point, Galloway testified, Lassiter simply told him that he “had to be able to perform 100% of [his] duties in order to return to work.” ROA.224 (RE.21).

Given this unrebutted evidence that Galloway spent as little as 1‑2% of his time performing functions that involved heavier lifting, a jury could reasonably conclude that such functions were non-essential. Under ADA regulations Congress authorized the EEOC to promulgate, an employee’s “work experience” and “amount of time spent on the job performing [a] function” are among the factors that govern whether the function is essential. 29 C.F.R. §§ 1630.2(n)(3)(iii), (vi)-(vii); see 42 U.S.C. § 12116 (authorizing regulations). Nor does Lassiter’s unexplained demand that Galloway be able to perform 100% of his functions raise any inference that each of those functions is essential. Courts routinely recognize that employers cannot sidestep “the required individual assessment whether [a] qualified individual is able to perform the essential functions of his or her job” by implementing a “100% healed policy.” McGregor v. Nat’l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999); see, e.g., Gardenhire v. Manville, 722 F. App’x 835, 839 (10th Cir. 2018) (observing that a “100% healed” policy is “considered discriminatory” under the ADA); Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001) (“All courts that have examined the question … agree that a 100% rule is impermissible ….”).

The district court erroneously discounted the significance of Galloway’s testimony about his job duties because it considered the testimony to be “speculation.” ROA.412 (RE.13). To the contrary, this Court views a worker’s firsthand account of his personal experience with his “day-to-day [job] activities” as a “good source[] of information” about what a job truly requires “in practice.” Credeur v. Louisiana ex rel. Off. of Att’y Gen., 860 F.3d 785, 793-94 (5th Cir. 2017); see 29 C.F.R. §§ 1630.2(n)(3)(iii), (vi)-(vii). And while the district court preferred to “give deference” to unspecified testimony from Cash Depot’s “more experienced workers” about what Galloway’s job entailed, ROA.412 (RE.13), the court was required to resolve all genuine fact disputes in Galloway’s favor. See LHC Grp., 773 F.3d at 694. In any event, as explained supra at 5-7, Cash Depot’s witnesses largely corroborated Galloway’s testimony about his work duties. See, e.g., ROA.286-88 (RE.38-40) (Murphy identifying lifting coin bags and replacing or repairing an ATM’s cash dispenser as the only aspects of repairs and coin empties that may sometimes involve lifting more than twenty-five pounds); ROA.294 (Murphy agreeing that repairs and coin empties are “most of the work”). It is unclear what testimony, exactly, the district court viewed as fatally undermining Galloway’s.

Nor does evidence that Field Service Technicians sometimes performed installations and removals compel a finding that Galloway could not perform essential job functions. First, a jury could reasonably find that Galloway could have performed these tasks by teaming up with other workers and employing labor-saving devices. See ROA.221 (RE.18) (testimony that teams handled these tasks); ROA.332 (RE.46) (job description referencing winches and dollies); ROA.404 (testimony about how a worker could “take some of the weight off”). Second, a jury could reasonably find that such tasks were not essential job functions, given testimony that Project Technicians—not Field Service Technicians—usually handled installations and removals and that Galloway performed this sort of task only once in seven months of employment. ROA.220-21 (RE.17-18), 266; see supra at 30-32 (citing 29 C.F.R. §§ 1630.2(n)(3)(iii), (vi)-(vii), and explaining the role of a job’s day-to-day realities in the essential-function inquiry).

None of the other job tasks that may have required lifting more than twenty-five pounds are indisputably essential either. Galloway never had to install an air machine’s concrete base, and third-party providers may have been handling such installations in his region in any event. See supra at 7-8 (citing ROA.178, 221 (RE.18), 381 (RE.47)). Despite Mueller’s speculation, ROA.176, no evidence shows that Galloway or anybody else ever needed to move worksite obstacles weighing more than twenty-five pounds. And as for the tasks introduced for the first time in the Kolodziej declaration Cash Depot submitted with its reply brief, ROA.351-54, a reasonable juror could find they are not essential given their absence from the job description or any deponent’s testimony (including Kolodziej’s own).

To be sure, the Kolodziej declaration opined that a Field Service Technician’s “essential job duties” required “the ability to push, pull, and lift, in excess of 25 pounds on a daily basis.” ROA.351. But a jury would be entitled to reach a different conclusion upon weighing the evidence and considering the relevant factors, among which “[t]he employer’s judgment” is but one. 29 C.F.R. § 1630.2(n)(3)(i); see Credeur, 860 F.3d at 794 (“[C]ourts should not give blind deference to an employer’s judgment, but should instead evaluate the employer’s words alongside its policies and practices.”); Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1258 (11th Cir. 2007) (emphasizing that, if the employer’s view “were considered to be conclusive, then an employer … could, simply by asserting that [a] function is ‘essential,’ avoid the [ADA’s] clear congressional mandate”). And a jury would have particular grounds to question Kolodziej’s judgment in his declaration, given that it conflicts both with Galloway’s job description—which reflects Cash Depot’s competing judgment that a Field Service Technician need only be able to lift twenty pounds to perform his essential job functions—and with Kolodziej’s prior testimony that he was “not aware” of what a Field Service Technician’s “specific lifting requirement” was. ROA.397; see ROA.399 (Kolodziej’s prior admission that he “really d[id]n’t know what the lifting requirement would be”).

Finally, contrary to Cash Depot’s argument below, see ROA.150-51, Galloway’s designation as totally and permanently disabled for veterans’ benefits purposes sheds no light on whether he was physically capable of performing his essential job functions. The VA has created a schedule that assigns a fixed numerical disability rating to a given medical condition based on “the average impairment in earning capacity” the condition causes. 38 C.F.R. § 4.15 (emphasis added). An individual is rated totally and permanently disabled if the sum total of the disability ratings assigned to his various conditions under the VA’s schedule is high enough to suggest it would be “impossible for the average person to follow a substantially gainful occupation,” and the conditions are “reasonably certain to continue” for life. Id. (emphasis added). But such a rating does not speak to one’s actual capabilities. See Rutledge v. Ill. Dep’t of Hum. Servs., 785 F.3d 258, 259 (7th Cir. 2015) (holding that “[t]here is no paradox in a person deemed totally disabled” under the VA’s schedule “nevertheless wanting, finding, and holding a job”); cf. Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 797-98 (1999) (holding that “pursuit, and receipt,” of Social Security Disability Insurance benefits neither “estop[s] the recipient from pursuing an ADA claim” nor “erect[s] a strong presumption against the recipient’s success under the ADA”).[5]

Even if no reasonable jury could find that Galloway was qualified to perform his essential job functions without accommodation, however, a jury could nonetheless reasonably find him qualified on the alternative theory that reasonable accommodations would have enabled him to perform those functions. The EEOC identified three such potential accommodations: allowing Galloway to split heavy coin empties into multiple bags for collection, restructuring his workload to avoid installations or removals, or temporarily extending his unpaid leave. ROA.202-205. As long as these accommodations would be “reasonable ‘in the run of cases,’” the burden falls on Cash Depot to demonstrate that they would cause “undue hardship” under the “specific circumstance[s]” of this case. Riel, 99 F.3d at 684; see 29 C.F.R. § 1630.2(o)(4) (stating that an employer “is required” to offer reasonable accommodation to an “otherwise qualified” disabled employee unless it can prove the affirmative “undue hardship” defense). And the evidence, viewed most favorably to the EEOC, could support a reasonable finding that all three possibilities are broadly reasonable and that Cash Depot has not carried its burden of proving undue hardship. See Bank of La. v. Aetna U.S. Healthcare Inc., 468 F.3d 237, 241 (5th Cir. 2006) (“For a defendant to obtain summary judgment on an affirmative defense, it must establish beyond dispute all of the defense’s essential elements.”).

First, Murphy identified lifting full coin bags as the only aspect of a coin empty that “potentially” involved lifting twenty-five pounds, ROA.286-87 (RE.38-39), and Galloway testified that he could perform (and in fact had performed) this task by dividing retrieved coins into multiple bags, ROA.220, 225 (RE.17, 22). The only evidence challenging this possible accommodation was a statement in Kolodziej’s declaration that coins must be put in “a single bag that is serialized so it can be properly tracked for deposit.” ROA.352. But the declaration—which Cash Depot submitted after Kolodziej’s deposition and any opportunity for cross-examination—said nothing about whether using multiple bags would impede tracking and, if so, whether Cash Depot could take reasonable steps to address that difficulty.

Although the district court voiced concern that splitting coin retrievals “could lead to stolen bags,” ROA.412 (RE.13), no evidence suggested this speculative possibility, let alone compelled all reasonable factfinders to embrace it. The district court apparently derived its theft concern from representations Cash Depot’s counsel made at oral argument. ROA.511; see ROA.347 n.7 (Cash Depot’s reply brief repeating this argument without citing evidence). But movant-friendly speculation devoid of record support is improper on summary judgment. See D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 457 (5th Cir. 2010) (“[A]rguments by counsel are not evidence ….”).

Second, Murphy testified that he was “not aware” of any reason Galloway’s job could not be restructured to avoid installations and removals. ROA.290 (RE.42); see 42 U.S.C. § 12111(9)(B) (defining “reasonable accommodation” to include “job restructuring”). Indeed, Murphy testified that Cash Depot had restructured Field Service Technicians’ work to accommodate lifting restrictions in the past, and there is evidence that multiple other workers were available to perform the infrequent, prescheduled installation and removal tasks. Not only did another Field Service Technician cover the same geographic region Galloway did, with additional “float” technicians available as needed, but Cash Depot also employed Project Technicians who were more typically responsible for such tasks in any event. See supra at 3, 6-7.

While the district court noted that “Cash Depot is not required to hire others to cover or do parts of Galloway’s job,” or to “[p]ay[] someone else to do his work,” ROA.412-13 (RE.13-14), those uncontroversial points are irrelevant here. No evidence suggests that reallocating tasks among existing workers would require Cash Depot to hire others or alter compensation.

And while “the ADA does not require an employer … to adjust co-workers’ duties to make them work longer or harder” or to “reassign existing employees to perform” a disabled employee’s essential functions, Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999), “[s]hifting marginal duties to other employees who can easily perform them is a reasonable accommodation,” Rorrer v. City of Stow, 743 F.3d 1025, 1044 (6th Cir. 2014) (emphasis added); see Supinski v. United Parcel Serv., Inc., 413 F. App’x 536, 542-43 (3d Cir. 2011) (holding that a jury could find “assistance from fellow employees” with heavy-lifting tasks to be a reasonable accommodation where there was “a genuine factual issue as to whether such heavy lifting was an essential job function”). As explained supra at 32-33, a reasonable jury could find that installations and removals formed such a marginal part of Galloway’s duties that temporarily restructuring his work to avoid them would have had little impact on the overall balance of labor among Cash Depot’s employees. Compare Burch, 174 F.3d at 621 (rejecting as unreasonable a firefighter’s proposal that his job be restructured such that he “be allowed to chauffeur the fire trucks but not be required to fight fires”). Certainly, no evidence compels a contrary finding.

Finally, a reasonable jury could conclude Cash Depot would have been able to extend Galloway’s unpaid leave a few weeks until his lifting restriction ended. See Moss, 851 F.3d at 419 (“[T]aking leave that is limited in duration may be a reasonable accommodation to enable an employee to perform the essential functions of the job upon return ….”). Existing floats successfully covered Galloway’s original leave, and while Kolodziej said he “would assume” this arrangement harmed Cash Depot, there was no evidence of any adverse impact it caused or of any reason it could not reasonably be temporarily extended. ROA.326-27. Indeed, Kolodziej testified that using floats was the “usual procedure” for accommodating an employee’s absence. ROA.330

The district court apparently based its belief that extending Galloway’s leave would be unreasonable on a view that his lifting restriction was “indefinite.” ROA.413 (RE.14); see Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 481 (5th Cir. 2016) (“[A]n employer is not required to provide a disabled employee with indefinite leave.”). But a reasonable jury could view things differently. When Galloway notified Cash Depot of his lifting restriction—which ended just weeks later—he knew that his doctors expected a prompt, full recovery and that the restriction was temporary until he could consult a neurologist. See supra at 10-11. Although his email telling Cash Depot of his restriction and requesting accommodation did not share that information, the email triggered Cash Depot’s duty to engage in a “flexible dialogue … with the goal of finding an appropriate accommodation.” Delaval, 824 F.3d at 481; see EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009) (noting that an employee need not “mention the ADA or use the phrase ‘reasonable accommodation’” to trigger this duty). A reasonable jury could find that, if Cash Depot had first engaged in the dialogue the ADA requires, it would have learned that Galloway’s need for accommodation was likely to be short-lived. Instead, it impermissibly “stymie[d] the interactive process … by preemptively terminating [Galloway]” within a day of receiving his accommodation request. Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005).

2. A Jury Could Reasonably Find that Discriminatory Assumptions about Galloway’s Disability Motivated Cash Depot to Fire Him.

To the extent the district court held Cash Depot was entitled to summary judgment on the EEOC’s discriminatory termination claim on the alternative ground that the record did not “automatically” establish Cash Depot’s “bad faith,” this too was error. ROA.413 (RE.14).

The EEOC need not establish that Cash Depot acted in bad faith to prevail on this claim. Rather, it need only establish that Galloway’s disability “actually play[ed] a role in [Cash Depot’s] decision making process and ha[d] a determinative influence on the outcome.” Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (per curiam) (quoting Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 503-04 (5th Cir. 2002)). And, as this Court has recognized, this well-accepted standard furthers the ADA’s purpose. One of the ADA’s “primary goals” is “to prohibit employers from making adverse employment decisions based on stereotypes and generalizations associated with [an] individual’s disability rather than on the individual’s actual characteristics.” Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 481-82 (5th Cir. 2006) (quoting Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 29 (1st Cir. 2002)). The ADA therefore prohibits employers from relying on “prejudices” or “personal concepts” about a qualified employee’s disability—as distinct from his actual capabilities—as a basis for taking adverse action against him. Id. at 483. When such preconceptions drive an employer’s actions, discrimination results regardless of whether an employer’s underlying intent is beneficent or malicious. Compare EEOC v. E.I. du Pont de Nemours & Co., 480 F.3d 724, 732 (5th Cir. 2007) (explaining that an employer’s “state of mind” is relevant to the analytically subsequent issue of punitive damages); see 42 U.S.C. § 1981a(b)(1) (requiring a showing of “malice or … reckless indifference” for punitive damages but not for other relief).

The timeline here easily supports a reasonable finding that Cash Depot terminated Galloway based on unfounded assumptions about his disability and not on a considered assessment of whether he was “actually capable of performing the essential functions of [his] job.” Rodriguez, 436 F.3d at 481. Cash Depot began seeking Galloway’s replacement almost immediately after learning of his stroke and then, despite telling Galloway it would await the outcome of his medical assessment, ultimately hired a replacement before learning what, if any, limitations Galloway’s condition would impose on his ability to work. See supra at 8-10. While this timing may not “automatically” compel an inference of discrimination, ROA.413 (RE.14), the proper question is whether a jury reasonably could make such an inference, not whether it must.^{^[6]}

Nor do Cash Depot’s proffered nondiscriminatory justifications for firing Galloway entitle it to judgment as a matter of law. Cash Depot told Galloway it was terminating him due to “the nature of [his] job and the unknown [timing] of when [he would] be able to return to full duty.” ROA.237 (RE.30). The district court, echoing this rationale, opined that “Cash Depot is not expected to sit on its hands and wait to see if Galloway might be able to return to work.” ROA.413 (RE.14). But, as explained supra at 10-11, at the time Cash Depot fired Galloway, it knew that he was medically cleared to return to work, subject only to a lifting restriction. And insofar as Galloway remained capable of performing his essential job functions with or without accommodation despite that restriction, see supra at 26-42, firing him because his disability left him unable to perform each and every one of his marginal job tasks is itself unlawful discrimination, see supra at 30-31 (citing cases).

Moreover, even if Galloway’s lifting restriction were a permissible basis for firing him, a jury could reasonably find that it was not Cash Depot’s true rationale. Again, Cash Depot learned of the restriction only after it had hired Galloway’s replacement and less than twenty-four hours before firing Galloway. And, as explained supra at 41-42, Cash Depot engaged in no follow-up dialogue with Galloway to assess the restriction’s impact or how long it was likely to persist. The evidence, then, supports a reasonable conclusion that Cash Depot fired Galloway based on an unexamined assumption that his disability left him unable to work and not on a genuine assessment of his actual capabilities.

B. A Reasonable Jury Could Find Cash Depot Failed to Offer Galloway Reasonable Accommodations that an Interactive Dialogue Would Have Revealed.

The district court also erred in granting Cash Depot summary judgment on the EEOC’s failure-to-accommodate claim. The ADA provides that discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A). To establish liability, the EEOC must show that (1) Galloway “is a ‘qualified individual with a disability’”; (2) Cash Depot knew of “the disability and its consequential limitations”; and (3) Cash Depot “failed to make ‘reasonable accommodations’ for such known limitations.” Feist v. La. Dep’t of Just., 730 F.3d 450, 452 (5th Cir. 2013) (quoting 42 U.S.C. § 12112(b)(5)(A)). As this Court has long observed, “when an employer’s unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA.” Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 736 (5th Cir. 1999).

As explained supra at 26-42, a reasonable jury could find that Galloway was qualified and that Cash Depot could reasonably have accommodated his lifting restriction. The evidence also easily supports a finding that Cash Depot was well aware of Galloway’s limitations and the consequent need for accommodation: the letter terminating him referenced his lifting restriction and specifically said that Cash Depot “w[ould] not be able to accommodate” it. ROA.237 (RE.30).

The district court gave three reasons why it believed Cash Depot could not reasonably be found liable despite failing to offer—or even explore—possible accommodations, but all of them are flawed. First, the district court held that Galloway did not “meet [his] responsibility” to seek an accommodation in the first place. ROA.413 (RE.14). But a reasonable jury could find Galloway “present[ed] a request” sufficient to trigger Cash Depot’s duty to “engage in a good faith interactive process” of considering potential accommodations when he emailed Cash Depot about his lifting restriction, asked to return to work, and explained that he could perform 98-99% of his job duties. Chevron Phillips, 570 F.3d at 621-22; see supra at 10-11. Certainly, Cash Depot had no trouble construing Galloway’s email as an accommodations request. ROA.237 (RE.30) (termination letter expressly refusing accommodations).

Second, the district court noted that “[t]he whole onus is not on Cash Depot” to find an accommodation. ROA.413 (RE.14). While this is true, the burden was also not on Galloway to come up with a viable accommodation on his own. As this Court has repeatedly observed, there are good reasons why the interactive process creates obligations on both sides. See, e.g., Chevron Phillips, 570 F.3d at 622 (“Under the ADA, once the employee presents a request for an accommodation, the employer is required to engage in the interactive process so that together they can determine what reasonable accommodations might be available.”); Loulseged, 178 F.3d at 736 (“The need for bilateral discussion arises because ‘each party holds information the other does not have or cannot easily obtain.’” (quoting Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 161-62 (3d Cir. 1999), vacated and reh’g en banc granted, 184 F.3d 296)); see also Rizzo v. Child.’s World Learning Ctrs., Inc., 173 F.3d 254, 266 (5th Cir. 1999) (describing interactive process as one in which “the responsibility for fashioning a reasonable [accommodation] is shared between the employee and employer” and explaining that, “[f]itting these two halves into a whole, the employer and employee can work together to determine how best to restructure the employee’s duties and work place in a manner that accommodates the employee’s limitations but does not pose an undue hardship on the employer”), vacated and reh’g en banc granted, 187 F.3d 680.[7]

Finally, the district court observed that “Cash Depot … does not have to discuss a reasonable accommodation with Galloway if one does not exist.” ROA.413 (RE.14). True enough—but as explained supra at 36-42, a reasonable jury could find such accommodations did exist. Indeed, Cash Depot presented no evidence that it so much as considered whether it could accommodate Galloway. See ROA.136 (Kolodziej admitting he did not know whether accommodations were discussed); ROA.304 (Mueller doing same). At minimum, then, a jury could reasonably find that Cash Depot would have found a means of accommodating Galloway if it had undertaken the interactive process the ADA requires instead of unilaterally stymieing that process by firing him the day after learning of his limitations. See, e.g., LHC Grp., 773 F.3d at 699 (reversing summary judgment where employee’s “proposed solutions were not so unreasonable that they absolved [employer] of its statutory duty to at least discuss accommodation”); Chevron Phillips, 570 F.3d at 622 (reversing summary judgment because “a jury reasonably could find that [employer] did not attempt to entertain [a] requested accommodation”); Cutrera, 429 F.3d at 113.

II. The District Court Abused Its Discretion by Arbitrarily Curtailing EEOC’s Discovery into Cash Depot’s Decision to Terminate Galloway Without Exploring Potential Accommodations.

Even if this Court believes summary judgment was proper on the existing record, it should nonetheless reverse and remand because the district court abused its discretion by refusing to permit the EEOC to conduct discovery central to its claims.

The district court would not let the EEOC depose “witnesses who fairly likely have knowledge of … highly relevant” facts about internal deliberations upon which its claims “may well hinge.” Miller, 986 F.3d at 892 (holding that such a refusal is an abuse of discretion). While Cash Depot claims it fired Galloway because his lifting restriction left him unable to perform essential job functions and was incapable of accommodation, none of the witnesses the district court let the EEOC depose participated in the decision to fire Galloway or in any discussion about potential accommodations. See supra at 15-16, 50. Instead, they identified CEO Charles and HR Director Lassiter—along with a third, now-deceased officer—as the decisionmakers. See supra at 15-16. But despite Charles and Lassiter’s unique insight into the termination and accommodation decisions at the center of this case, the district court refused to allow the EEOC to depose either of them. See supra at 16-17.

Nor did the district court offer any reasons for curtailing relevant discovery. To the extent it embraced Cash Depot’s argument below that the EEOC’s request to depose Charles was intended only “to harass the CEO,” ROA.103, it ignored that “depositions of high level executives” are appropriate “when conduct and knowledge at the highest corporate levels … are relevant in the case.” Turner v. Novartis Pharms., No. 10‑0175, 2010 WL 5055828, at *3 (E.D. La. Dec. 2, 2010); accord, e.g., Gauthier v. Union Pac. R.R. Co., No. 1:07-cv-12, 2008 WL 2467016, at *3 (E.D. Tex. June 18, 2008). And to the extent it denied the EEOC’s request to depose Lassiter because it thought HR “delivered the [termination] message and the paperwork” but held no genuine authority, ROA.528 (RE.52), it engaged in speculative factfinding that stood at odds with the evidentiary record. See ROA.120-21 (Mueller testifying that Lassiter was among those who “made th[e] call” to fire Galloway); ROA.136 (Kolodziej testifying that he “would assume HR” would know whether “any accommodations were ever considered by Cash Depot”).

The district court’s unreasoned refusal to authorize the deposition of key decisionmakers was an abuse of discretion that flouts “the liberal spirit” of federal discovery rules.^{^[8]} Miller, 986 F.3d at 891 (quoting Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991)); see Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) (“It is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error.”).

What is worse, this error reflects this district judge’s pattern of imposing “discovery restrictions” that “suffocate[] any chance for [a plaintiff] fairly to present her claims”—a pattern this Court has, with “a sense of déjá vu,” previously disapproved. Miller, 986 F.3d at 891-92; see, e.g., McCoy v. Energy XXI GOM, L.L.C., 695 F. App’x 750, 759 (5th Cir. 2017) (per curiam) (holding this district judge “abused [his] discretion in refusing to allow … sufficient discovery” when he barred plaintiff from taking depositions). The district court’s impatience with the EEOC’s efforts to conduct routine discovery pervaded the proceedings below. As discussed supra at 13, the district court initially did not authorize the EEOC to take any depositions at all. See ROA.446 (district court inviting Cash Depot to “try [Murphy’s] giving a statement before [the EEOC] decide[s] to run up the cost of the deposition”). When it did finally permit select depositions, it emphasized that they “shouldn’t take long,” lest they “waste [the deponents’] time or the time and high price of [Cash Depot’s] lawyers.” ROA.492-93. And the district court appeared to base its dismissive attitude on preconceptions about the case’s merits. See ROA.531 (RE.55) (district court saying EEOC had no “need to talk to anybody” about Galloway’s personnel file because “[i]t doesn’t say in there anywhere that let’s get rid of this guy because he’s sick”).

The district court’s consistent attitude toward discovery only reinforces the arbitrariness of the restrictions it imposed here. If this Court does not hold that the existing record is sufficient for this case to advance to trial, it should at minimum reverse the grant of summary judgment as premature and remand with instructions to permit the parties to develop the evidentiary record further.

III. This Court Should Order that This Case Be Reassigned to Another District Judge on Remand.

Although this Court’s “power to reassign ‘is an extraordinary one,’” this case represents one of the rare instances in which that power is properly invoked. Miller, 986 F.3d at 892 (quoting Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997)). In deciding whether to reassign, this Court has employed two distinct tests without deciding which governs. Id. The “more stringent test” considers

(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his mind or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

Id. at 892-93 (quoting In re DaimlerChrysler Corp., 294 F.3d 697, 700‑01 (5th Cir. 2002) (per curiam)). The “more lenient test” asks “whether the judge’s role ‘might reasonably cause an objective observer to question [the judge’s] impartiality.’” Id. at 893 (alteration in original) (quoting DaimlerChrysler, 294 F.3d at 701). Here, reassignment is proper under either test because the record is rife with the district judge’s apparent factual assumptions and prejudgments of key issues.

To begin, the summary-judgment opinion—issued just seven days after briefing ended and covering barely more than four pages—reflects little examination of the evidence. See U.S. ex rel. Little v. Shell Expl. & Prod. Co., 602 F. App’x 959, 976 (5th Cir. 2015) (reassigning case away from this district judge because, “[f]acing a lengthy and detailed summary judgment record,” he “issued a five-page opinion with few citations to either record evidence or relevant legal authority” and “consist[ing] almost entirely of conclusory statements”). Without citing or applying the summary-judgment standard or making specific reference to any evidence, the opinion embraced “Cash Depot’s business judgment” over Galloway’s firsthand account of his experience on the job—an account the opinion inexplicably viewed as “speculation.” ROA.412 (RE.13). The opinion made movant-friendly factual inferences devoid of record support. See ROA.412 (RE.13) (splitting up coin collections would risk theft); ROA.413 (RE.14) (Galloway had “potential limitations” beyond his lifting restriction that “could affect [his] ability to do the job”). And it made critical, impermissible credibility determinations in Cash Depot’s favor. ROA.412 (RE.13) (crediting unspecified testimony from unidentified “more experienced workers” that Field Service Technicians needed to lift more than twenty-five pounds “during most of the job’s activities” despite other evidence to the contrary); ROA.413 (RE.14) (crediting Cash Depot’s representations in litigation as to why it hired Negron and fired Galloway, despite having foreclosed discovery that might have produced evidence on this point).

Were this simply a matter of pervasive legal error, reassignment might not be warranted. But the record below leaves the distinct impression that the district court’s “peremptory ruling[]” on summary judgment, Miller, 986 F.3d at 893, reflects fixed and unsupported views on the case. As explained supra at 12, the district court opened an initial conference before discovery had even begun with a cursory (and factually erroneous) description of the case that assumed key issues would be resolved in Cash Depot’s favor. See ROA.437 (RE.50) (mistakenly describing the job description as containing a fifty-pound lifting requirement and then opining that “lifting bags of coins is an integral part of [Galloway’s] job” that “he can’t do,” and that Cash Depot “didn’t do it” and engaged in “no malice” or “trickery”). Throughout the proceedings, the district court’s statements betrayed a firm view that Galloway’s disability prevented him from working and that Cash Depot had acted in good faith to meet its legal obligations. See, e.g., ROA.438 (RE.51) (if Cash Depot “really wanted to get rid of disabled people,” it would have set its lifting requirement “at ten pounds and above or something that would make it impossible”); ROA.444 (Galloway “shouldn’t be driving anything, much less a truck”); ROA.470 (“You can’t swear to the United States that you’re totally and permanently disabled, acquire funds for it, and then turn around and say, no, you could[] work.”); ROA.487-88 (Cash Depot “had nothing to give” Galloway and “maybe the only thing that they could do is … free[] him for other opportunities”).

What is more, the district court’s unfounded speculation on the case’s facts appeared to influence its view of the legal principles in play. Compare ROA.487 (“[T]here is no requirement in the statute that they have to sit down and talk about this and have a conversation with him.”), with supra at 41-42, 48-50 (explaining the well-established principle that the ADA does mandate an interactive process); compare ROA.478 (being “totally and permanently disabled … means you can’t do anything”), with supra at 35-36 (explaining why a total and permanent VA disability designation is compatible with employability); see also supra at 54 (explaining that assumptions about the case’s merits may have influenced the court’s discovery rulings).

Under this Court’s “more lenient test,” the district court’s reliance on unsupported preconceptions about Galloway’s inability to work and Cash Depot’s good faith—along with the arbitrary restrictions it placed on the EEOC’s ability to conduct discovery, see supra at 50-54—could lead an objective observer to question its impartiality. Miller, 986 F.3d at 893. Indeed, at this case’s initial conference, the district court was frank in assuming that this enforcement action would prove to be an unnecessary encumbrance on an employer that “didn’t do it.” ROA.437 (RE.50). And it accordingly justified its desire for quick, limited discovery by saying, “[E]ither we get on with [the EEOC] doing your job or it goes away because we can’t do that to employers everywhere.” ROA.453; cf. Johnson, 120 F.3d at 1334-35 (trial judge’s comment to the jury that he had a “bone to pick” with the Internal Revenue Service was evidence of bias).

Even under the more stringent test, reassignment is needed to “preserve the appearance of justice” and to ensure this case is resolved on the merits instead of on “previously-expressed views” that this district judge would have “substantial difficulty” reconsidering. Miller, 986 F.3d at 892-93 (quoting DaimlerChrysler, 294 F.3d at 700-01). Nor would reassignment produce inefficiencies sufficient to overcome the fairness gains it would secure. See id. at 893. Although this case has reached the summary-judgment stage, the existing record is relatively slim, the issues are not unusually complex, and the district court’s rulings do not reflect a level of investment in the case that another district judge would be unable to quickly match or exceed. See U.S. ex rel. Little, 602 F. App’x at 976 (reassigning case away from this district judge after eight years and two appeals).

CONCLUSION

For the foregoing reasons, this Court should vacate the district court’s judgment and remand for further proceedings. It should also order that the case be reassigned to a different district judge on remand.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

CERTIFICATE OF SERVICE

I, Nicolas Sansone, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system on this 13th day of December, 2021, and I will submit hard copies of the brief upon the Court’s request. I also certify that all counsel of record have consented to electronic service by virtue of Fifth Circuit Rule 25.2.3 and will be served the foregoing brief via the Court’s appellate CM/ECF system.

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

[1] Citations with the form “ROA.XX” refer to the Record on Appeal, and parallel citations with the form “RE.XX” refer to the Record Excerpts.

[2] The EEOC also sought leave to propound written discovery requests for documents related to Galloway’s termination and Negron’s hiring. ROA.102; see ROA.530 (RE.54) (EEOC counsel reminding the district court that “[w]e were not allowed to do discovery requests in this case”). Cash Depot, however, claimed it had already produced all such records during the administrative investigation, ROA.104, and the district court never addressed the issue.

[3] The EEOC moved to strike the Kolodziej declaration, ROA.357-58, 364-68, but the district court neither ruled on the motion nor indicated whether it relied on the declaration in ruling on summary judgment.

[4] The district court speculated that “other potential limitations” could have “affect[ed] Galloway’s ability to do the job.” ROA.413 (RE.14). But the court identified no evidence suggesting any other such limitation—let alone any evidence so compelling as to require all reasonable juries to reject the contrary medical judgment of Galloway’s doctor.

[5] In fact, the VA has an entirely separate scheme for establishing total disability “based on unemployability of the individual” where that individual’s “schedular rating” is too low to qualify him. 38 C.F.R. § 4.16 (emphasis added). But that was not the scheme through which Galloway received his designation. See ROA.179-83 (documentation that Galloway met the schedular threshold for total disability); ROA.184 (VA’s conclusion that Galloway was not “entitled to a higher level of disability due to being unemployable”). And even if the VA’s November 2020 total disability finding did somehow signify Galloway’s unemployability, it would not establish that Galloway was unqualified for his job at the time Cash Depot fired him in April 2019. See ROA.179 (indicating that the VA did not consider Galloway totally disabled as of April 4, 2019).

[6] Further supporting an inference of discrimination, Murphy testified that when he heard about Galloway’s stroke, he had “concern that there might be problems with him doing th[e] work.” ROA.293. But rather than explaining how the stroke might impact Galloway’s work, Murphy referred to his “personal view” that a stroke “seems like something that could happen again and again.” ROA.293.

[7] The en banc Court in Rizzo reached the same result that the panel had reached. See Rizzo v. Child.’s World Learning Ctrs., Inc., 213 F.3d 209, 211 (5th Cir. 2000) (en banc).

[8] The district court also never addressed the EEOC’s request for permission to serve written discovery requests on Cash Depot. See supra at 16 n.2. To the extent Cash Depot possesses as-yet undiscovered documents that shed light on Galloway’s termination, the district court abused its discretion in failing to order Cash Depot to produce them.