No. 10-1353 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. AUTOZONE, INC. Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the Central District of Illinois, Peoria Division Hon. John A. Gorman, Magistrate Judge _________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _________________________________________________________ P. DAVID LOPEZ ERIC A. HARRINGTON General Counsel Attorney CAROLYN L. WHEELER EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. AutoZone's Concessions of Facts Below Mandate Reversal of Summary Judgment and Its Statement of Facts on Appeal Must Be Disregarded Because It Fails to Appropriately Cite to the Record and Misrepresents the Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 II. AutoZone's Argument that an "Intermittent" Manifestation of an Impairment Cannot Be a Disability Is Wrong, and AutoZone Fails to Rebut the EEOC's Argument that a Rational Jury Could Find Shepherd Disabled Based on the Specific Limitations He Experienced. . . . . . . . . . . . . . . . . . . . . . . . 8 III.Medical Evidence Is Not Required to Survive Summary Judgment on the Question of Substantial Limitations . . . . . . . . . . . . . . . . . . . . . . . 16 A.AutoZone's argument that it is entitled to summary judgment because the EEOC failed to present medical testimony regarding Shepherd's substantial limitations is waived . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 B.There is no requirement that medical testimony be given to demonstrate a substantial limitation of a major life activity . . . . . . . . . . . . . . . . . 18 C.The EEOC presented medical evidence to support the claim that Shepherd was substantially limited in a major life activity . . . . . . . . . . . . . . . 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS . . . . . . . . . . . . . . . .25 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Albrechtsen v. Board of Regents of University of Wisconsin System, 309 F.3d 433 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . .21 Avitia v. Metropolitan Club of Chicago, 49 F.3d 1219 (7th Cir. 1995) . . . . . .3, 8 Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir. 1998) . . . . . . . . . 4, 22 Bragdon v. Abbot, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . . . .20, 21 Carmona v. Southwest Airlines Co., No. 08-51175, __ F.3d __, 2010 WL 1614504 (5th Cir. April 22, 2010). . . 9, 10, 13 Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . . 10, 12 Cleveland v. Policy Management System Corp., 526 U.S. 795 (1999). . . . . . . . . 5 Day v. Northern Indiana Public Services Corp., 164 F.3d 382 (7th Cir. 1999). . . 8 Desmond v. Mukasey, 530 F.3d 944 (D.C. Cir. 2008). . . . . . . . . . . . . . . 19 Doeblers' Pennsylvania Hybrids v. Doebler, 442 F.3d 812 (3d Cir. 2006). . . . . . 4 EEOC v. Chevron Phillips Chemical Co., 570 F.3d 606 (5th Cir. 2009). . . . . . 9, 12 EEOC v. Rockwell International Corp., 243 F.3d 1012 (7th Cir. 2001). . . . . . . .22 EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001). . . . . . . . . . . .9, 11, 12 EEOC v. Sears, Roebuck & Co. (Sears I), 233 F.3d 432 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . passim EEOC v. Sears, Roebuck & Co. (Sears II), 417 F.3d 789 (7th Cir. 2005). . . . . . 23 EEOC v. United Parcel Service, 249 F.3d 557 (6th Cir. 2001). . . . . . . . . . . .15 Ekstrand v. School District of Somerst, 583 F.3d 972 (7th Cir. 2009) . . . . . . 18 Fenney v. Dakota, Minnesota & Eastern Railroad Co., 327 F.3d 707 (8th Cir. 2003). . . . . . . . . . . . . . . . . . . . . 14, 15 Furnish v. SVI Systems, Inc., 270 F.3d 445 (7th Cir. 2001). . . . . . . . . . . . 14 Grayson v. City of Chicago, 317 F.3d 745 (7th Cir. 2003). . . . . . . . . . . . 18 Gribben v. United Parcel Service, 528 F.3d 1166 (9th Cir. 2008) 19 Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998). . . . . . . . . . . . . . . . . . 9, 12, 13 Haynes v. Williams, 392 F.3d 478 (D.C. Cir. 2004). . . . . . . . . . . . . . .18, 19 Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005). . . . . . . . . 19 Hoffman v. Caterpillar, 256 F.3d 568 (7th Cir. 2001). . . . . . . . . . . . . . . 18 Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 15 Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996). . . . . . . . . . . . . . . 19 Lawson v. CSX Transport, 245 F.3d 916 (7th Cir. 2001). . . . . . . . . 16, 21, 23 Marinelli v. City of Erie, 216 F.3d 354 (3d Cir. 2000). . . . . . . . . . . . . . 19 Maziarka v. Mills Fleet Farm, 245 F.3d 675 (8th Cir. 2001). . . . . . . . . . .9, 12 McDonald v. Village of Winnetka, 371 F.3d 992 (7th Cir. 2004). . . . . . . . . 8 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . 18 Moore v. J.B. Hunt Transport, 221 F.3d 944 (7th Cir. 2000). . . . . . . . 13, 14, 20 Nawrot v. CPC International, 277 F.3d 896 (7th Cir. 2002). . . . . . . . . . . . 19 Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000). . . . . . . . . . 9, 10, 12 Perry v. Sullivan, 207 F.3d 379 (7th Cir. 2000). . . . . . . . . . . . . . . . . 18 Rohr v. Salt River Project Agricultural Import & Power District, 555 F.3d 850 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . 19 Roush v. Weatec, 96 F.3d 840 (6th Cir. 1996). . . . . . . . . . . . . . . 10, 12 Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998). . . . . . . . . 10, 11 Sensing v. Outback Steakhouse, 575 F.3d 145 (1st Cir. 2009). . . . . . . . . 10, 12 Skagen v. Sears, Roebuck & Co., 910 F.2d 1498 (7th Cir. 1990). . . . . . . . . . . 5 Squibb v. Memorial Medical Center, 497 F.3d 775 (7th Cir. 2007). . . . . . . . . 20 T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329 (2d Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . .16 Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999). . . . . 10, 12 Tobey v. Extel/JWP, 985 F.2d 330 (7th Cir. 1993). . . . . . . . . . . . . . . 4 Toyota Motor Manufacturing, Ky. v. Williams, 534 U.S. 184 (2002). . . . . . . . . 19 Vande Zande v. Wis. Department of Admin., 44 F.3d 538 (7th Cir. 1995). . . . . . . . . . . . . . . . . . . . 9, 12, 13 Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . . 4, 5 Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997). . . . . . . . . . . . . . . 5 Wiesmueller v. Kosobucki, 547 F.3d 740 (7th Cir. 2008). . . . . . . . . . . . . . .3 STATUTES 42 U.S.C. §12102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18 RULES & REGULATIONS 20 C.F.R. § 404.1520. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 6 29 C.F.R. Pt. 1630. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 29 C.F.R. § 1630.2(j). . . . . . . . . . . . . . . . . . . . . . . . . . .9, 16, 23 Fed. R. App. P. 28(a)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 OTHER AUTHORITIES EEOC Compliance Manual, § 902 Definition of the Term "Disability" (1995). . . . . . . . . . .15, 16 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities (1997). . . . . . 16, 18 INTRODUCTION In its opening brief, the EEOC argued that summary judgment on its ADA accommodation claim should be reversed because the EEOC has raised, at the very least, a triable question as to whether Shepherd<1> was disabled between March and September 2003, and because the district court erroneously suggested that the EEOC had to present proof of an adverse action other than denial of the accommodation itself. In response, AutoZone concedes the second point, AutoZone Br. 3-4 & n.3; R.145, at 13-15, but fails to respond to the undisputed facts and the facts taken in the light most favorable to the EEOC on the question of Shepherd's disability.<2> AutoZone responds to the EEOC's opening brief in three primary ways. First, AutoZone attempts to create a dispute of fact in this Court even though it admitted the relevant facts in its motion for summary judgment. AutoZone contests certain facts that it conceded below, relies on non-evidence in its statement of facts, and represents that disputed facts were undisputed, much of which violates the Rules of Appellate Procedure and this Circuit's rules. Second, AutoZone argues that Shepherd's limitations were "intermittent" and therefore, they cannot be substantially limiting. In so doing, AutoZone mischaracterizes the frequency of Shepherd's limitations and ignores the cases cited by the EEOC that make plain that a person can be disabled even when the disabling manifestations of his impairment are sporadic or intermittent. And AutoZone fails to evaluate the factors that this Court considers in determining whether there is a triable issue of fact as to the substantial limitation, factors that all weigh against the summary judgment grant. Third, AutoZone argues that because the EEOC did not offer medical records or testimony stating that Shepherd was substantially limited in the major life activity of caring for himself, it is entitled to summary judgment on that ground alone. AutoZone has waived this argument by failing to advance it in district court. As for the merits, there is no per se requirement that medical testimony is necessary to show a substantial limitation, and in any event, the EEOC did present medical testimony as to the severity and duration of the impairment, a factor that goes to whether the impairment is substantially limiting. AutoZone offers no convincing, factually supported argument in support of the district court's judgment. This Court should reverse and allow this ADA accommodation claim to go to a jury. ARGUMENT I. AutoZone's Concessions of Facts Below Mandate Reversal of Summary Judgment and Its Statement of Facts on Appeal Must Be Disregarded Because It Fails to Appropriately Cite to the Record and Misrepresents the Record. In its statement of facts, AutoZone confuses the issue on appeal by contesting certain facts that it conceded below, relying on non-evidence in its statement of facts, and representing that disputed facts were undisputed. "It is forbidden for the statement of facts to misstate the record or omit unfavorable material facts, or to make work for the court by failing to give record references for all the facts included in the statement." Wiesmueller v. Kosobucki, 547 F.3d 740, 741 (7th Cir. 2008) (internal citations omitted). This Court has warned that "a statement of facts which, as [AutoZone's] does, treats contested testimony . . . as 'facts' violates 7th Cir. R[ules]" and this Court has the power to "strike[] a brief for violation" of the rules. Avitia v. Metro. Club of Chi., 49 F.3d 1219, 1224 (7th Cir. 1995). For the reasons discussed below, the EEOC urges the Court to disregard AutoZone's statement of facts and rely instead on the facts it conceded below as well as the EEOC's statement of facts. As noted in the EEOC's opening brief, AutoZone, in its statement of undisputed material facts in the district court, listed the following: (1) "Shepherd has needed assistance with dressing himself, brushing his hair and bathing on a daily basis from approximately the year 2003 to 2004 to the present time"; (2) "[p]rior to 2003, Shepherd's wife helped him get dressed, brushed his hair and bathed him approximately four to five days a week"; (3) "[e]ven while he was working at AutoZone, Shepherd had flair-ups [sic] that would require more of [Mrs. Shepherd's] assistance"; (4) "he would have these flair-ups [sic] approximately four to five times a week during which he would not be able to put on his own pants, his own shoes, brush his hair, or brush his teeth"; and (5) "When Shepherd was having his flair- ups [sic] he would be unable to sweep or vacuum around the house, do the laundry, do the dishes, rake leaves, shovel snow, or mow the lawn." See EEOC Br. 30-31 (citing R.65, at 14, 19-20 (AutoZone's Statement of Undisputed Facts Nos. 37, 38, 75, 76, 77, 78 & 79)); see also R.65, at 15 (AutoZone's Statements of Undisputed Facts Nos. 43, 44, 45, 46, 47, 48, 54). That Shepherd was either unable to perform or required assistance with personal care tasks four or five times a week between March and September 2003 was not in dispute before the district court, nor should it be here. See Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 630 (7th Cir. 1998) (noting that employer- defendant did not dispute the relevant facts, "in fact, most of them can be found in Euclid's . . . statement of material, undisputed facts"); Tobey v. Extel/JWP, 985 F.2d 330, 333 (7th Cir. 1993) ("An admission trumps evidence[.]"). The issue is (and was) whether those facts are sufficient for a reasonable jury to conclude that Shepherd was substantially limited in the major life activity of caring for himself. See Baert, 149 F.3d at 630 (concluding that the undisputed facts support an inference that the plaintiff was disabled under the ADA). Instead of acknowledging that it has already conceded most of the relevant facts, AutoZone obfuscates the facts by citing and relying on non-evidence and misrepresenting to this Court what was undisputed. AutoZone relies extensively on its statement of undisputed facts that it submitted to the district court without citing to the record that supports those putative facts. See, e.g., AutoZone Br. 6-8. A court of appeals will not rely solely on the statement of undisputed facts, see Doeblers' Pa. Hybrids v. Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006), and neither will a district court, see Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). AutoZone's heavy reliance on its statement of undisputed facts, without providing citations to the underlying record does not fulfill the mandate in Federal Rule of Appellate Procedure 28, which provides that no fact can be stated "unless it is supported by a reference to the page or pages of the record or the appendix where the fact appears." See Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002) (declining to consider references to a statement of undisputed facts and reviewing only the facts presented in the opposing party's brief plus those facts that were properly cited to the record); Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 n.2 (7th Cir. 1990) (stating that "merely referr[ing] the court to the . . . Statement of Undisputed Facts filed in the district court" fails to constitute a "statement of the facts relevant to the issues presented for review, with appropriate references to the record").<3> In addition to relying heavily on its statement of undisputed facts, AutoZone also relies on "undisputed facts" that were disputed by the EEOC in the district court. For example, AutoZone states that the following was undisputed: Susan Shepherd testified as follows: that she believed Shepherd began having difficulty brushing his teeth around December 2006 or May 2007; that Shepherd didn't need her assistance in putting on his shoes until between 2004 or 2005; that Shepherd did not need her assistance in buttoning his shirts until 2004 or 2005; that Shepherd needed her assistance in regard to bathing and showering in approximately 2004; and that Shepherd needed her assistance in brushing his hair between 2003 and 2004. Record 790-792 (AutoZone Statement of Undisputed Material Facts in Support of Summary Judgment, Nos. 56, 57, 58, 60, 62, and 64). AutoZone Br. 6-7. Not only is that paragraph contrary to AutoZone's own concessions, but the EEOC specifically disputed facts numbered 57, 58, 60, and 64 below. The EEOC disputed AutoZone's "undisputed" fact number 57, that Mrs. Shepherd "believed [that] [Mr.] Shepherd began having difficulty brushing his teeth around December 2006 or May 2007." See R.76, at 8 (EEOC Response to AutoZone's Motion for Summary Judgment). Indeed, a review of the record shows that Mrs. Shepherd testified that she noticed that "there was some problems with his teeth" and "that his oral hygiene, you might say, was going downhill" a "year and a half or two years" before her deposition, which took place on May 21, 2008. R.65-11, at 1 (S. Shepherd Dep. 7:11-:21). Thus, she did not testify about his problems brushing, but about noticing his deteriorating oral hygiene. And in any event, the dates are wrong: a year and a half or two years prior to her deposition would have been May 2006 to November 2006, not "December 2006 or May 2007," as AutoZone says. And, as noted, AutoZone itself conceded that Shepherd struggled with brushing his teeth four or five days a week during 2003. See R.65, at 15 (Undisputed Fact No. 43).<4> The EEOC also disputed AutoZone's fact number 58, that Shepherd did not need Mrs. Shepherd's assistance in putting on his shoes until 2004 or 2005; number 60, that Shepherd did not need Mrs. Shepherd's assistance in buttoning shirts until 2004 or 2005; and number 64, that Shepherd needed Mrs. Shepherd's assistance in brushing his hair between 2003 and 2004. See R.76, at 8 (EEOC Response to AutoZone's Motion for Summary Judgment). The record shows that both Mrs. Shepherd and Shepherd testified that she assisted him with dressing and grooming in 2003. Mrs. Shepherd testified that when he had flare-ups, which occurred as often as four or five times a week while he was working at AutoZone, R.65-11, at 30 (S. Shepherd Dep. 30:2-:12), he was unable to put on his pants, R.65-11, at 30 (S. Shepherd Dep. 30:13-:15), or shoes, R.65-11, at 30 (S. Shepherd Dep. 30:16-:17). And, as noted, AutoZone stated in its own statement of undisputed facts that he "would have these flair-ups [sic] approximately four to five times a week during which he would not be able to put on his own pants, his own shoes, brush his hair, or brush his teeth."<5> This Court has noted, "[w]e are not sticklers, precisians, nitpickers, or sadists. But in an era of swollen appellate dockets, courts are entitled to insist on meticulous compliance with rules sensibly designed to make appellate briefs as valuable an aid to the decisional process as they can be. A misleading statement of facts increases the opponent's work, our work, and the risk of error." See Avitia, 49 F.3d at 1224.<6> To simplify matters, the EEOC suggests that this Court rely only on the facts presented by the EEOC and disregard AutoZone's statement of facts. See Albrechtsen, 309 F.3d at 436 (considering only the facts presented by the defendant and the few facts that were properly cited by the plaintiff). II. AutoZone's Argument that an "Intermittent" Manifestation of an Impairment Cannot Be a Disability Is Wrong, and AutoZone Fails to Rebut the EEOC's Argument that a Rational Jury Could Find Shepherd Disabled Based on the Specific Limitations He Experienced. AutoZone not only fails to represent the facts fairly, but also fails to analyze them, clinging instead to its characterization that Shepherd's manifestations were intermittent and thus, according to AutoZone, cannot be substantially limiting. The question of whether someone is disabled under the ADA is determined by the facts of the specific case, not by the label the employer attaches to the limitations. As discussed in the EEOC's opening brief, the evidence shows that Shepherd's periods of substantial limitation were frequent, and not intermittent-the debilitating limitations occurred several times a week. EEOC Br. 33. This case, however, does not turn on what modifier is used to describe the frequency of Shepherd's limitation. The issue is whether the personal care limitations experienced by Shepherd when considered as a whole are substantial as compared to the way the "average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j). AutoZone's contention that a non-constant limitation cannot be substantial is wrong and runs contrary to the decisions that have found that an ADA plaintiff has created a triable issue of fact on the disability question even though the plaintiff's limitations could be characterized as intermittent or sporadic. See EEOC v. Sears, Roebuck & Co. (Sears I), 233 F.3d 432, 440 n.4 (7th Cir. 2000); Haschmann v. Time Warner Entm't Co., 151 F.3d 591, 599-600 (7th Cir. 1998); Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 543-44 (7th Cir. 1995); see also Carmona v. Sw. Airlines Co., No. 08-51175, __ F.3d __, 2010 WL 1614504, at *9-10 (5th Cir. April 22, 2010); EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 618 (5th Cir. 2009); Maziarka v. Mills Fleet Farm, 245 F.3d 675, 679-80 (8th Cir. 2001); EEOC v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001); Otting v. J.C. Penney Co., 223 F.3d 704, 709-11 (8th Cir. 2000); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 309 (3d Cir. 1999); Cehrs v. Ne. Ohio Alzheimer's Research Ctr., 155 F.3d 775, 780 (6th Cir. 1998); Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871-72 (2d Cir. 1998); Roush v. Weatec, 96 F.3d 840, 844 (6th Cir. 1996); cf. Sensing v. Outback Steakhouse, 575 F.3d 145, 155 (1st Cir. 2009). AutoZone offers specious distinctions as to a few of the cases cited by the EEOC, but ignores the rest. AutoZone attempts to distinguish Carmona on the ground that, according to AutoZone, in that case "[t]he court found the medical evidence supported a finding that Carmona spent from about one-third to about one-half of each month unable to walk without excruciating pain." AutoZone Br. 33 (citing Carmona, 2010 WL 1614504, at *10). In Carmona, however, the admitted medical records-there was no medical testimony-discussed the severity and chronic nature of the underlying impairment, and stated generally that the plaintiff was "incapacitated" when he had a flare-up, but did not specifically address how often the plaintiff could not walk; it was Carmona's testimony that established how often he was unable to walk. 2010 WL 1614504 at **8-10. AutoZone also discusses Ryan, failing to note that the court made clear that a relapsing-remitting condition like colitis could be substantially limiting. Instead, AutoZone argues "[l]ike the plaintiff in Ryan, Shepherd may always suffer from symptoms, but these symptoms vary in frequency and degree." AutoZone Br. 31. It is simply a truism that sporadic manifestations will "vary in frequency and degree." What matters is whether the manifestations substantially limit a major life activity. The Second Circuit concluded that Ryan's manifestations were not substantially limiting, not because her manifestations "varied in frequency and degree," but because she testified that she only suffered limitations in the summer months, had suffered no limiting symptoms in nearly two years, and even when she was suffering from limitations, she was "still able to get dressed, groom herself and make her way to work." Ryan, 135 F.3d at 871-72. Here, Shepherd's manifestations were anything but seasonal and flared four or five days a week, and he was unable, or had a limited ability, to perform even the most basic of personal care tasks when his impairment flared. AutoZone also argues that the Sara Lee court rejected the argument the EEOC advances in this case. AutoZone mischaracterizes the EEOC's argument. It is not that "the intermittent manifestation . . . is the disability," as AutoZone claims. See AutoZone Br. 21. Rather, the EEOC's argument, which AutoZone fails to answer, is that when a factfinder considers the actual personal care limitations experienced by Shepherd, there is sufficient evidence to conclude that he was substantially limited in the major life activity of caring for himself and the fact that he did not suffer from the manifestations constantly is not fatal. Indeed, the Sara Lee court adopted the very same analytical framework. See 237 F.3d at 352. It specifically rejected the contention that Vanessa Turpin was not disabled simply because her seizures were intermittent; rather, its conclusion that she was not disabled was based on its consideration of her specific limitations. Id. The court held she was not substantially limited in sleeping because she only occasionally had night seizures, of which she typically was unaware and which only left her tired and a little bruised the next day. Id. at 350-51, 352. Similarly, it held that she was not substantially limited in thinking because she only experienced forgetfulness that was similar to that which is experienced by the general population. Id. at 353. And it held that she was not substantially limited in taking care of herself because she performed all sorts of personal care tasks and her husband assisted her only during the brief seizures that "normally lasted a couple of minutes." Id. Moreover, AutoZone fails to discuss most of the case law the EEOC cited-it ignores Chevron Phillips, Maziarka, Otting, Phoenixville, Cehrs, Roush, and Sensing completely-and fails to discuss specifically this Court's decisions in Haschmann and Sears I. (AutoZone does argue that Vande Zande is inapposite.) Instead of distinguishing cases holding that a sporadic manifestation of a permanent impairment can be substantially limiting, AutoZone simply repeats that Shepherd was not disabled because, according to AutoZone, his limitations were "sporadic" or "intermittent." AutoZone misses the point. The teaching of Sears I, Haschmann, Vande Zande, and the other cases, is that there is no categorical rule that impairments with intermittent disabling flare-ups are always ADA disabilities, or never disabilities. That is, "[a]n intermittent manifestation of a disease must be judged the same way as all other potential disabilities." Sara Lee Corp., 237 F.3d at 352. Indeed, the Sears I court expressly rejected AutoZone's argument: "Sears contends that despite how substantially limiting the court might consider Keane's neuropathy, it cannot qualify as a disability under the ADA, in that the condition was episodic . . . [but] the fact that Keane's condition was episodic is not dispositive in the disability inquiry." 233 F.3d at 440 n.4. Likewise in Haschmann, this Court concluded that a jury could find that the plaintiff in that case was disabled even though the disabling symptoms lay dormant and only flared "from time to time." 151 F.3d at 599-600. And, Vande Zande decided that an intermittent manifestation can be part of a disability. 44 F.3d at 544. AutoZone, however, relies on Moore v. J.B. Hunt Transport, 221 F.3d 944, 952 (7th Cir. 2000), to argue that Vande Zande is unavailing to the EEOC. AutoZone argues, relying on Moore's discussion of Vande Zande, that the question in Vande Zande was not whether the plaintiff was disabled-all "admitted" that she was-but whether the employer had to accommodate the intermittent manifestations of the admitted disability. See AutoZone Br. 20 (citing Moore, 221 F.3d at 952). TheVande Zande Court, however, still had to decide whether the intermittent manifestations were part of the disability, otherwise there would have been no duty to accommodate them. And, the Court specifically rejected the defendant's argument that intermittent manifestations could not be part of the disability. 44 F.3d at 544- 45. Moore's discussion of Vande Zande does make clear that Vande Zande does not stand for the notion that a person is disabled under the ADA solely because he is substantially limited when he has a flare-up. But, contrary to AutoZone's contention, that is not what the EEOC argues here; rather the EEOC contends that a reasonable jury could conclude that, based upon the frequency and the nature and extent of his limitations, Shepherd was substantially limited in the major life activity of caring for himself. If Shepherd was unable to perform personal care tasks only once or twice a year, like the plaintiff in Moore, then under the original ADA, he likely would not be disabled.<7> But the facts here demonstrate that he needed assistance with personal care tasks often-twenty to twenty-five times a month. Indeed, Moore itself analyzed whether Moore's manifestations were substantially limiting, concluding that "we do not believe Mr. Moore's infrequent flare-ups, one or two per year, render his condition a disability." 221 F.3d at 952.<8> By relying almost entirely on its argument that intermittent manifestations of an impairment can never be an ADA disability, AutoZone fails to address the core issue-whether, based on the facts in this case, a jury could conclude that Shepherd was substantially limited in the major life activity of caring for himself. As the EEOC noted in its opening brief, courts have held that individuals with similar, perhaps even less severe, personal care limitations than Shepherd's could be found disabled. See Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 715 (8th Cir. 2003); EEOC v. United Parcel Serv., 249 F.3d 557, 562-63 (6th Cir. 2001); Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1134-35 (9th Cir. 2001). AutoZone completely ignores Fenney and United Parcel Service in its brief, but attempts to distinguish Humphrey on the ground that the plaintiff in that case presented medical testimony that it took her three times as long as most people to shower, wash her hands, dress, and handle or cook food, whereas here, according to AutoZone, the EEOC presented "no similar medical testimony." AutoZone Br. 32. AutoZone's attempt to distinguish Humphrey, however, is unavailing. In Humphrey, just as here, the fact that it took Humphrey longer to perform personal care tasks was not in dispute. See 239 F.3d at 1134 ("The facts are undisputed with regard to Humphrey's ability to care for herself."). The question before the Humphrey court was, just as it is here, whether a reasonable jury could conclude that the undisputed limitations were substantial. See id. at 1134-35. Nothing in the Humphrey opinion suggests that anything turned on the fact that there was medical testimony about her limitations. AutoZone also fails to address the EEOC's interpretive guidances that provide that chronic episodic conditions, including "some severe back problems" "may constitute substantially limiting impairments," because they "may be substantially limiting when active or may have a high likelihood of recurrence in substantially limiting forms." EEOC Compliance Manual, § 902 Definition of the Term "Disability," at § 902.4(d) (1995); see also EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at ¶ 8 (1997). Finally, AutoZone fails to discuss the long-term duration and permanent impact of Shepherd's impairment, which was well-established, even though this is a factor a court "ought to consider" when "determining whether an impairment can be said to 'substantially limit' the major life activity of the individual." Lawson v. CSX Transp., 245 F.3d 916, 926 (7th Cir. 2001) (citing 29 C.F.R. § 1630.2(j)(2)); see also EEOC Compliance Manual, § 902 Definition of the Term "Disability," at § 902.4(a). Because AutoZone fails to dispute the permanent impact of Shepherd's impairment that issue is conceded. See T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329, 346 n.10 (2d Cir. 2010) (concluding that appellee had waived argument it failed to address in its initial appellate briefing). AutoZone's argument that an intermittent manifestation of a permanent impairment can never be an ADA disability is wrong. The EEOC has presented sufficient evidence for a reasonable jury to conclude that Shepherd, a person with a permanent, chronic impairment that limited his ability to perform personal care tasks four or five times a week, was substantially limited in the major life activity of caring for himself between March and September 2003. III. Medical Evidence Is Not Required to Survive Summary Judgment on the Question of Substantial Limitations. AutoZone's argument that the absence of medical testimony supporting the fact that Shepherd was substantially limited in a major life activity "is in and of itself sufficient to support summary judgment in AutoZone's favor," AutoZone Br. 9, 23- 24, is unavailing. That argument is waived because it is presented for the first time on appeal, contrary to law, and based upon a factually incorrect premise in that the EEOC did present relevant medical evidence and testimony supporting a finding that Shepherd was substantially limited in a major life activity. A.AutoZone's argument that it is entitled to summary judgment because the EEOC failed to present medical testimony regarding Shepherd's substantial limitations is waived. Instead of discussing the actual facts and legally relevant factors, AutoZone, for the first time on appeal, argues that no reasonable jury could conclude that Shepherd was disabled because the "EEOC failed to present any medical testimony or other medical evidence regarding its claim that Shepherd was substantially limited in the major life activity of caring for oneself." AutoZone Br. 9; see also id. at 23-24. AutoZone never argued or presented this theory to the district court; it argued only that Shepherd was not disabled from March to September 2003, because, according to AutoZone, "[t]he symptoms of his impairment over this time were exhibited by intermittent flare-ups, rather than a constant debilitating condition." See R.65, at 63-64 (AutoZone's Motion for Summary Judgment and Memorandum of Law in Support); see also R.82, at 11-12 (AutoZone's Reply Memorandum in Support of Summary Judgment). Because this argument is presented for the first time on appeal, it is waived and should not be considered by this Court. See, e.g., Grayson v. City of Chicago, 317 F.3d 745, 751 (7th Cir. 2003); Perry v. Sullivan, 207 F.3d 379, 383 (7th Cir. 2000).<9> B.There is no requirement that medical testimony be given to demonstrate a substantial limitation of a major life activity. Even if AutoZone's newly minted theory is not waived, nothing in the statute, the regulations or interpretive guidance, or relevant caselaw suggests that medical evidence is required to show a substantial limitation. The statute does not state that an ADA plaintiff must provide medical testimony or records to prove he is substantially limited. See 42 U.S.C. § 12102(2) (2006), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553, 3555-57 (2008). Neither do the regulations. See 29 C.F.R. Pt. 1630; see also EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at ¶ 4 (medical testimony is not required; "testimony from the individual with a disability and his/her family members, friends, or coworkers may suffice"). AutoZone's theory also runs counter to the Supreme Court's admonition that "the ADA requires those 'claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation . . . in terms of their own experience . . . is substantial.'" Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 198 (2002) (internal citations omitted and emphasis added). Requiring expert testimony as to an ADA plaintiff's "own experience" is nonsensical; no one knows more about the ADA plaintiff's "own experience" than he. The second person who would likely know most about the ADA plaintiff's "own experience" would be the plaintiff's spouse or domestic partner. Thus, "a plaintiff's personal testimony cannot be inadequate to raise a genuine issue regarding his 'own experience,'" Haynes v. Williams, 392 F.3d 478, 482 (D.C. Cir. 2004), particularly when that personal testimony is corroborated, as it is here, by his spouse. All the courts of appeals that have specifically addressed this question have held that medical evidence is not required to show a substantial limitation. See Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 858-59 (9th Cir. 2009); Desmond v. Mukasey, 530 F.3d 944, 956 (D.C. Cir. 2008); Gribben v. United Parcel Servs. 528 F.3d 1166, 1170 (9th Cir. 2008); Head v. Glacier Nw., Inc., 413 F.3d 1053, 1058 (9th Cir. 2005); Haynes, 392 F.3d at 482; Marinelli v. City of Erie, 216 F.3d 354, 360 (3d Cir. 2000); Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996). Indeed, this Court has held in several cases that an ADA plaintiff created a triable issue on substantial limitations where the plaintiff offered no medical evidence about the limitations. See, e.g., Nawrot v. CPC Int'l, 277 F.3d 896, 905 (7th Cir. 2002) (concluding that diabetic was substantially limited in major life activities of thinking and caring for himself where there was no medical evidence pertaining to thinking or caring for oneself); Sears I, 233 F.3d at 438 (concluding that there was a triable issue of fact as to whether claimant was substantially limited in walking where the only medical evidence was a doctor's recommendation that the claimant "limit her walking," but there was no medical evidence as to whether she was substantially limited in walking). Likewise, the Supreme Court has not required medical evidence. See Bragdon v. Abbot, 524 U.S. 624, 641 (1998) (concluding that there was a triable issue of fact as to limitations in sexual reproduction in a case where no medical evidence stated that the specific claimant was limited in reproduction). Not only is medical evidence not necessary, but this Court has concluded that generalized medical evidence is insufficient because the evidence must be presented in terms of the actual experience of the person claiming protection under the ADA. See Moore, 221 F.3d at 952.<10> Despite the lack of legal support, AutoZone, in essence, argues that the undisputed facts that on nearly every day Shepherd was unable, or limited in his ability, to put on his shoes; on nearly every day, he was unable, or limited in his ability, to care for his teeth and gums; on 20 to 25 days a month, he was unable to dress, bathe, or groom his hair without assistance; on every day, he had a limited ability to drive; and on nearly every day he was unable to perform daily household chores, such as sweeping, vacuuming, cooking, basic home repairs, yard work, and laundry, see EEOC Br. 16-18, are insufficient without corroborating medical testimony or records. This contention makes no sense, particularly where, as here, the relevant evidentiary facts are not in dispute. See Bragdon, 524 U.S. at 641 (concluding that ADA claimant was substantially limited in the major life activity of reproduction based on the "unchallenged" testimony of the ADA claimant in that case that "her HIV infection controlled her decision not to have a child"); Lawson, 245 F.3d at 924 (concluding that a jury could find plaintiff was substantially limited in the major life activity of eating where "undisputed testimony" was that the plaintiff must deal with the concern that the insulin he injects to treat his illness will itself bring about debilitating symptoms that can only be ameliorated by immediately eating certain foods). In the context of summary judgment, this Court must take the unchallenged testimony as true, even when there is no medical testimony corroborating the substantial limitation. See Bragdon, 524 U.S. at 641 ("Testimony from the respondent that her HIV infection controlled her decision not to have a child is unchallenged."). Even if certain relevant facts were disputed, medical testimony supporting the credibility of the Shepherds would not be needed to survive summary judgment because credibility determinations are for the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 269 (1986). The only issue before this Court is whether the undisputed facts and the facts viewed in the light most favorable to the EEOC "are enough to support an inference that [Shepherd] is disabled." See Baert, 149 F.3d at 630 (noting that employer-defendant did not dispute the relevant facts and thus, the court considered only whether the undisputed facts "are enough" to support an inference of disability). Moreover, a per se rule requiring medical evidence about the limitations would lead to unnecessary reliance on expert testimony without any increase in accuracy of the determination. Cf. EEOC v. Rockwell Int'l Corp., 243 F.3d 1012, 1021 (7th Cir. 2001) (Wood, J., dissenting) (questioning what is "gained by having vocational experts routinely appear in ADA cases" based on a substantial limitation in working when the issue in question is one that can be determined with generalized information). AutoZone presumably envisions records or testimony from Shepherd's physician stating that Shepherd could not perform personal care tasks when he had a flare-up. If the doctor inquired about Shepherd's limitations, he would only know what Shepherd, or Mrs. Shepherd, told him. Thus, the AutoZone requirement would demand additional testimony or records from a doctor based only on the hearsay statements of the Shepherds, even though the record already contains the doctor's direct testimony regarding the severity of the impairment and the Shepherds' direct testimony regarding the severity of the limitations which result from the impairment. That makes no sense. A jury is perfectly capable of assessing the credibility of the Shepherds as it pertains to his limitations without a doctor relaying hearsay that undergirds their testimony. A jury, based on its own life experiences of performing the personal care tasks central to daily life, is equipped to determine whether Shepherd's limitations are significant as compared to what an average person can do. See EEOC v. Sears, Roebuck & Co. (Sears II), 417 F.3d 789, 802 (7th Cir. 2005) (concluding that expert comparative evidence was not required because "[a] reasonable jury could conclude, based on this evidence and its own life experience, that Keane's severe difficulty in walking the equivalent of one city block was a substantial limitation compared to the walking most people do"). Because a categorical rule requiring medical testimony as to the substantial limitations is unsupported by the statute and regulations as well as the EEOC's interpretive guidance, is in tension with the type of evidence the Supreme Court has held an ADA plaintiff must produce, is contrary to the holdings of the circuit courts that have explicitly addressed the issue, and would not increase the accuracy of the disability determination, this Court should reject AutoZone's invitation to adopt such a rule in this case. C.The EEOC presented medical evidence to support the claim that Shepherd was substantially limited in a major life activity. To the extent that medical testimony is helpful in assessing the impact of an impairment, the EEOC presented ample medical evidence and testimony. One of the factors this Court considers in determining whether an ADA plaintiff is substantially limited in a major life activity is the duration and impact of the impairment. See Lawson, 245 F.3d at 926 (citing 29 C.F.R. § 1630.2(j)(2)). Here, the record is replete with medical evidence and testimony that Shepherd's impairment is severe and permanent. As discussed in the EEOC's opening brief, medical evidence shows that for years, doctors have reported that Shepherd's impairment is permanent, and that in April 2003, his condition was "permanent," and had become "even more serious," "due to previous reaggravating injuries" likely caused by the mopping. See EEOC Br. 6-7 n.4, 16-18, 32 (chronicling the history of Shepherd's impairment and treatments, detailing various physicians' diagnoses that the impairment is expected to be permanent, and providing citations to the record). Medical records and testimony support the EEOC's showing of a substantial limitation. CONCLUSION A reasonable jury could conclude that Shepherd was substantially limited in the major life activity of caring for himself and nothing in AutoZone's brief demonstrates otherwise. This Court should reverse and remand for a trial on the accommodation claim. Respectfully submitted, P. DAVID LOPEZ General Counsel /s/ Eric A. Harrington ERIC A. HARRINGTON CAROLYN L. WHEELER Attorney Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,951 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5), the type style requirements of Fed. R. App. P. 32(a)(6), and the typeface and style requirements of Circuit Rule 32(b) because this brief has been prepared in a proportionally spaced typeface-12-point Century font in the body of the brief and 11-point Century font in the footnotes-using Microsoft Word 2003. /s/ Eric A. Harrington Attorney for the Equal Employment Opportunity Commission Dated: May 27, 2010 CERTIFICATE OF SERVICE I, Eric A. Harrington, hereby certify that I filed this brief with the Court by sending, this 27th day of May, 2010, via United Parcel Service, the original plus 15 copies and by uploading an electronic version of the brief via this Court's Case Management/Electronic Case Filing System (CM/ECF). I also certify that I have served two copies of the brief, this 27th day of May, 2010, by first-class mail, postage pre-paid, and one electronic version of the brief by electronic mail, to the following counsel of record: Joseph F. Spitzzeri Johnson & Bell, Ltd. 33 West Monroe, Suite 2700 Chicago, IL 60603 spitzzerij@jbltd.com /s/ Eric A. Harrington ERIC A. HARRINGTON Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov *********************************************************************** <> <1> The EEOC misspelled his name "Sheperd" in its opening brief; the correct spelling is "Shepherd." <2> AutoZone's brief unnecessarily confuses the claim and issue on appeal. See AutoZone Br. 4 n.2, 10 & n.6. The only claim on appeal is the March to September 2003 accommodation claim. And the only issue before this Court, as AutoZone concedes, is whether a reasonable jury could conclude that Shepherd was substantially limited in the major life activity of caring for himself during that time period. Id. at 4 n.3. <3> Some statements in AutoZone's brief are not even supported by the citation to its statement of undisputed facts. For example, AutoZone states that "Shepherd also testified during the Social Security Administration hearing that his alleged onset date of disability was September 13, 2003," and cites "undisputed" fact number 253. AutoZone Br. at 8. But, fact 253 says nothing about Shepherd's testimony; rather it states that, "[T]he Administrative Law Judge of the Social Security Administration determined that Shepherd had been disabled since September 13, 2003." R.65, at 49 (AutoZone's Memorandum in Support of Motion for Summary Judgment). The EEOC can find nothing in the Social Security Administration's ("SSA") decision itself that supports AutoZone's contention about Shepherd's testimony. See R.65-33, at 1-10 (SSA decision). At any rate, the SSA's disability determination is immaterial to the ADA claim. Because of the different legal standards under the SSA and ADA, "determinations made by the [SSA] concerning disability are not dispositive findings for claims arising under the ADA." Weigel v. Target Stores, 122 F.3d 461, 467 (7th Cir. 1997); see also Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803-05 (1999). Indeed, since Shepherd was engaged in "substantial gainful activity" prior to September 13, he was not disabled under the SSA, 20 C.F.R. § 404.1520(a)(4)(i); see id. § 404.1520(b), but that has no bearing as to whether he was substantially limited in a major life activity. <4> Some of AutoZone's own "undisputed" facts are in tension with others. <5> In addition to representing that certain facts were undisputed that were actually disputed, AutoZone also represented to this Court that certain facts were "Undisputed Material Facts," specifically, numbers 96, 103, 104, 110, 111, 112, 230, 231, and 232, see AutoZone Br. 5 n.4, 8, even though the EEOC argued that those facts were immaterial, see R.76, at 12, 15 (EEOC Response to AutoZone's Motion for Summary Judgment). <6> AutoZone's brief also violates the rules by presenting arguments in its statement of facts. See 7th Cir. R. 28(c) ("The statement of facts required by Fed. R. App. P. 28(a)(7) shall be a fair summary without argument or comment."); see also McDonald v. Village of Winnetka, 371 F.3d 992, 1009 n.11 (7th Cir. 2004) (stating that a statement of facts "rife with inappropriate argument and comment . . . is . . . in violation of our circuit rules");Day v. Northern Ind. Public Servs. Corp., 164 F.3d 382, 384-85 (7th Cir. 1999) (striking brief where statement of facts was argumentative and unsupported by citations). In its statement of facts, AutoZone argues that "[n]one of the facts [presented by the EEOC] [is] relevant to the issues in this appeal, namely whether Shepherd was substantially impaired in the major life activity of caring for himself, and therefore are insufficient to create a genuine issue of material fact to deny summary judgment. There is neither a citation to medical records supporting such a claim nor a citation to medical testimony supporting such a claim." AutoZone Br. 5-6. <7> Under the ADAAA, "[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." 42 U.S.C. §12102(4)(D) (Supp. II 2008). Thus, Moore presumably would be covered under the amended provisions of the ADA. <8> AutoZone also relies on Furnish v. SVI Systems, Inc., 270 F.3d 445 (7th Cir. 2001), suggesting that the decision turned on the fact that the plaintiff's condition was intermittent. AutoZone Br. at 24-25. It did not; rather, the plaintiff "never asserted . . . any . . . activity . . . as being substantially limited," with perhaps the exception of his liver function, which the court concluded was not a major life activity, and even if it was, his liver function went from "borderline" to "adequate" to "absolutely normal." Furnish, 270 F.3d at 450. <9> AutoZone also argues for the first time on appeal that this Court can affirm the summary judgment grant on the ground that the EEOC "cannot point to a single similarly situated employee outside the protected class who was treated more favorably in order to support [the EEOC's] indirect method of proving disparate treatment discrimination." AutoZone Br. 27 n.13. Not only is this argument unpreserved, but it betrays a misunderstanding of a reasonable accommodation claim. "In failure to accommodate claims, unlike disparate treatment claims, the McDonnell Douglas burden-shifting approach is not necessary or appropriate." Hoffman v. Caterpillar, 256 F.3d 568, 572 (7th Cir. 2001). To survive summary judgment on the failure-to-accommodate claim, the EEOC only needed to present evidence that, if believed, would show that (1) Shepherd is a qualified individual with a disability; and (2) AutoZone was aware of his disability, and (3) failed to reasonably accommodate it. See Ekstrand v. Sch. Dist., 583 F.3d 972, 975 (7th Cir. 2009). <10> AutoZone argues that Squibb v. Memorial Medical Center, 497 F.3d 775 (7th Cir. 2007), stands for the proposition that medical testimony is required to survive summary judgment. AutoZone Br. 26. But in Squibb, this Court merely concluded that the plaintiff failed to show that she was substantially limited in the major life activity of caring for herself because the evidence of her limitations was limited to her own statements and she could perform a whole host of personal care tasks, including, driving, bathing, brushing her teeth, and dressing herself. Id. at 784-85. In contrast to Squibb's evidence, Shepherd's underlying impairment is well documented and many of his personal care limitations are undisputed.