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, Eastern Division Hon. John A. Gorman, Magistrate Judge _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _________________________________________________________ P. DAVID LOPEZ ERIC A. HARRINGTON General Counsel Attorney LORRAINE C. DAVIS EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, NE Assistant General Counsel Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC") requests oral argument in this enforcement action brought under the Americans with Disabilities Act. The Commission appeals from a grant of partial summary judgment which involves a complex factual record, and the legal questions implicated turn on the individualized facts of this case. Oral argument would allow the Court to satisfy any concerns it may have regarding the record and highlight the existence of genuine issues of material fact precluding summary judgment. Additionally, oral argument would help to address any legal questions that the Court may have about the summary judgment ruling. TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. Litigation History. . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 I. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 26 II.The District Court Erred in Granting Summary Judgment to AutoZone on the March to September 2003 Accommodation Claim. . . . . . . . . . . . . . .27 A.There is sufficient evidence to support a finding that Sheperd's back impairment substantially limited the major life activity of caring for himself. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 B.To the extent the district court concluded that the accommodation claim must be dismissed on the ground that the EEOC failed to show an adverse employment action, it erred as a matter of law. . . . . . . . . . . . . . . . . 44 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS. . . . . . . . . . . . . . . 46 APPENDIX CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES AA Sales & Associates v. Coni-Seal, Inc., 550 F.3d 605 (7th Cir. 2008). . . . . 26 America International Adjustment Co. v. Galvin, 86 F.3d 1455 (7th Cir. 1996). . . . . . . . . . . . . . . . . . . . . 26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . . . 26 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . 27, 29 Branham v. Snow, 392 F.3d 896 (7th Cir. 2004). . . . . . . . . . . . . . . 29, 34 Brunker v. Schwan's Home Service, 583 F.3d 1004 (7th Cir. 2009). . . . .34, 35, 40 Carmona v. Southwest Airlines Co., No. 08-51175, __ F.3d __, 2010 WL 1010592 (5th Cir. Mar. 22, 2010).36, 37, 42 Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . 37, 38 Chicago Board of Education v. Substance, 354 F.3d 624 (7th Cir. 2003). . . . . 1 Colwell v. Suffolk County Police Department, 158 F.3d 635 (2d Cir. 1998). . . 28 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995). . . . . . . . . 28 EEOC v. Chevron Phillips Chemical Co., 570 F.3d 606 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . passim EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001). . . . . . . . . . . . . . 37 EEOC v. Sears, Roebuck & Co., 233 F.3d 432 (7th Cir. 2000). . . . . . . . . passim EEOC v. United Parcel Service, 249 F.3d 557 (6th Cir. 2001). . . . . . . . . . .31 Ekstrand v. School District of Somerset, 583 F.3d 972 (7th Cir. 2009). . . . . .44 Emory v. AstraZeneca Pharmaceuticals LP, 401 F.3d 174 (3d Cir. 2005). . . . . . 41 Fenney v. Dakota, Minn. & E.R. Co., 327 F.3d 707 (8th Cir. 2003). . . . . . 29, 31 Fredricksen v. United Parcel Service, Co., 581 F.3d 516 (7th Cir. 2009). . . 27 Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11 (1st Cir. 2002). . . 34, 35 Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998). . . . . . . . . . . . . . . . . . . . 38, 39 Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . .30, 31 JPM, Inc. v. John Deere Industrial Equipment Co., 94 F.3d 270 (7th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . 44 King v. Preferred Technical Group, 166 F.3d 887 (7th Cir. 1999). . . . . . . . .26 Lawson v. CSX Transportation, Inc., 245 F.3d 916 (7th Cir. 2001). . . . . . . . 32 Marozsan v. United States, 90 F.3d 1284 (7th Cir. 1996). . . . . . . . . . . . 26 Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675 (8th Cir. 2001). . . . 37, 40, 42 Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944 (7th Cir. 2000). . . . . . . . 28 NLRB v. Indiana Desk Co., 149 F.2d 987 (7th Cir. 1945). . . . . . . . . . . . 39 Nawrot v. CPC International, 277 F.3d 896 (7th Cir. 2002). . . . . . . . . passim Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000). . . . . . . . . 37, 42 Roger Whitmore's Automobile Services, Inc. v. Lake County, Ill., 424 F.3d 659 (7th Cir. 2005). . . . . . . . . . . . . . . . . . . . . 26 Roush v. Weatec, Inc., 96 F.3d 840 (6th Cir. 1996). . . . . . . . . . . . . . . 38 Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998). . . . . . . . . 28, 38 Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035 (7th Cir. 1993). . . . . . . . . . .26 Scheerer v. Potter, 443 F.3d 916 (7th Cir. 2006). . . . . . . . . . . . . . . . 43 Sensing v. Outback Steakhouse, 575 F.3d 145 (1st Cir. 2009). . . . . . . . . . .38 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . . . . . . 29, 34 Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999). . . passim Timmons v. General Motors Corp., 469 F.3d 1122 (7th Cir. 2006). . . . . . 44, 45 Toyota Motor Manufacturing, Ky., Inc. v. Williams, 534 U.S. 184 (2002). . . . . . . . . . . . . . . . . . . . . 28, 29, 32 Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 1995). . . . . . . . . . . . . . . . .38, 39, 40, 41 Winsley v. Cook County, 563 F.3d 598 (7th Cir. 2009). . . . . . . . . . . . 41 STATUTES Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (2006) 42 U.S.C. § 12102(2). . . . . . . . . . . . . . . . . . . . . 27, 28, 34 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . 44 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . . . 1 Americans with Disabilities Amendments Act of 2008 ("ADAA"), Pub. L. No. 110-325, 122 Stat. 3553 (2008), (codified as amended at 42 U.S.C. § 12101 et seq. (Supp. II 2008)). ADAA, Pub. L. No. 110-325, § 4(a). . . . . . . . . . . . . . . . . . 27 ADAA, Pub. L. No. 110-325, § 8. . . . . . . . . . . . . . . . . . . . . 27 42 U.S.C. § 12101(2)(A) (Supp. II 2008). . . . . . . . . . . . . . . 28 42 U.S.C. § 12102(4)(D) (Supp. II 2008). . . . . . . . . . . . . . . . 41 Jurisdictional Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RULES & REGULATIONS 29 C.F.R. § 1630.2(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 29 C.F.R. § 1630.2(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 29 C.F.R. pt. 1630, app. § 1630.2(i). . . . . . . . . . . . . . . . . . . . . 30 29 C.F.R. pt. 1630, app. § 1630.2(j). . . . . . . . . . . . . . . . . . 32, 40 Fed. R. App. P. 4(a)(4)(A)(iv), (v). . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 30(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 4 OTHER AUTHORITIES EEOC Compliance Manual, § 902 Definition of the Term "Disability" (1995). . . . . . . . . 32, 41 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities (1997). . . . . . . . 41 STATEMENT OF JURISDICTION This is an enforcement action brought by the EEOC pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a). The magistrate judge granted a partial summary judgment to the defendant on June 16, 2009, App., at A- 3 to A-34 (R.91),<1> which the EEOC challenges on appeal. The remaining claims were tried to a jury on September 28 through 30, 2009. On October 16, 2009, the EEOC filed a timely post-judgment motion to amend or alter the partial summary judgment grant. R.142, 143. The judgment in this case became final, for purposes of appeal, on December 14, 2009, when the district court ruled on that motion. App., at A-35 to A-43 (R.166); see Fed. R. App. P. 4(a)(4)(A)(iv), (v). The EEOC filed a timely notice of appeal on February 12, 2010. R.170. This Court has jurisdiction under 28 U.S.C. § 1291. See Chicago Bd. of Educ. v. Substance, 354 F.3d 624, 626 (7th Cir. 2003) ("[A]n appeal from a final judgment brings up for review any interlocutory order that has not become moot[.]"). STATEMENT OF THE ISSUES 1.Whether there is sufficient evidence to support a finding that John Sheperd was disabled within the meaning of the ADA during March to September 2003. 2.Whether the EEOC had to provide proof of an adverse employment action to survive summary judgment on a failure-to-accommodate claim. STATEMENT OF THE CASE This is an appeal from a final judgment of the district court dismissing an ADA accommodation claim on summary judgment. The EEOC filed suit on June 13, 2007, alleging (1) that AutoZone failed to accommodate one of it employees, John Sheperd, between March and September 2003, which resulted in a workplace injury; (2) that it discriminated against him when it decided not to allow him to return to work after a medical leave of absence that began after the injury in September 2003; (3) that that failure to allow him to return to work constituted a failure to make reasonable accommodations; and (4) that AutoZone retaliated against him for filing EEOC charges of disability discrimination by keeping him on involuntary leave for over a year, and ultimately firing him. On June 16, 2009, the district court granted summary judgment on the first claim-that AutoZone failed to accommodate Sheperd between March and September 2003-because, according to the district court, the EEOC failed to show that Sheperd was disabled, insofar as he was not substantially limited in a major life activity, and prior to his termination, there was no adverse employment action taken against him. App., at A-27 to A-28 (R.91, at 25-26). The other discrimination, accommodation, and retaliation claims were tried to a jury on September 28 through 30, 2009. The jury found in favor of AutoZone on all three claims, concluding that after the September 2003 injury, Sheperd was no longer qualified to perform the essential functions of the job and that AutoZone did not retaliate against him by refusing to allow him to return to work. R.129. The EEOC moved the court to reconsider the summary judgment grant, R.142, 143, which the district court denied, see App., at A-35 to A-43 (R.166). This appeal followed. R.170. The Commission, however, challenges only the district court's grant of summary judgment on the March to September 2003 accommodation claim. STATEMENT OF FACTS I.Background AutoZone sells automotive parts and has retail stores all over the country. From 1998 to 2004, John Sheperd worked in two of its retail stores. He began as a saleperson in AutoZone's Fort Madison, Iowa, store. R.65-6, at 45 (J. Sheperd Dep. 45:10-:11). After a brief time as a salesperson, he was promoted to a parts sales manager, or "PSM," position. R.65-7, at 62 (J. Sheperd Dep. 62:5-:17). After about a year or so, he transferred to the store in Macomb, Illinois, as a PSM. Id. at 62, 77 (J. Sheperd Dep. 62:4-:14, 77:17-:19). A PSM's primary role was to assist customers who came to the store. When a customer entered the store, the PSM would greet the customer, ask her whether he could help, and upon learning what she was looking for or what ailed her car, the PSM would try to help by assisting in the purchase of auto parts. R.65-6, at 51, 53 (J. Sheperd Dep. 51:1-:4, 53:3-:10). AutoZone's own job description stated that the purpose of the PSM job was "[t]o follow good customer service and selling techniques," to "follow AutoZone policies and procedures related to store activities," and "[t]o complete other tasks as directed by the assistant manager, manager, . . . or [District Manager]." R.65-23, at 47 (Thompson Dep. Ex. 18). Likewise, Karen Lynette Miller, AutoZone's designated 30(b)(6)<2> witness on the essential functions of the job, testified that the PSM job is "absolutely" "principally" a "customer service position." R.65-29, at 16 (Miller Dep. 16:17-:19). As she put it, the "Number 1, [duty is to] provide customer service." Id. at 17 (Miller Dep. 17:10-:11). In addition to those customer service tasks, a PSM "would perform managerial duties." Id. at 17 (Miller Dep. 17:11-:13). The managerial duties "include a lot of paperwork that if the store manager is not present, then that parts sales manager would be expected to perform the paperwork or administrative duties for the day." Id. at 18 (Miller Dep. 18:1-:5). As for physical tasks, the PSM would "be expected to perform those tasks of a physical nature if there are no other employees that he or she may delegate to." Id. at 17 (Miller Dep. 17:17-:22). The myriad physical tasks included, among other things, routine cleaning and maintenance of the store, stocking the shelves with new parts, and "fronting and facing" merchandise-moving merchandise to the front of the shelf to replace an item removed by a customer. R.65-6, at 55-56 (J. Sheperd Dep. 55:1-56:12); R.65- 10, at 61-62 (J. Sheperd Dep. Exs. 11, 12 (Daily Task Lists)); R.65-19, at 28 (Thompson Dep. 28:2-:11). Once a week, a computer generated a list of tasks to be performed and randomly assigned them to each employee. R.65-6, at 53-54 (J. Sheperd Dep. 53:11-54:23); R.65-12, at 41-42 (Wilmot Dep. 41:15-42:17); R.65-19, at 19, 28 (Thompson Dep. 19:7-:15, 28:2-:11). The daily tasks included, among other things, mopping and buffing the floor of the store, R.65-6, at 58-60 (J. Sheperd Dep. 58:21-59:3, 60:19-:22); R.65-19, at 28 (Thompson Dep. 19:7-:15, 28:12-:15), sweeping, R.65-6, at 59 (J. Sheperd Dep. 59:12-:13); R.65-19, at 28 (Thompson Dep. 28:2-:3), taking out the trash, R.65-6, at 59 (J. Sheperd Dep. 59:15); R.65-19, at 28 (Thompson Dep. 28:4-:6), and unloading and loading the truck that delivered auto parts to the store, R.65-6, at 60 (J. Sheperd Dep. 60:1-:3); R.65-10, at 61-63 (J. Sheperd Dep. Exs. 11, 12 (Daily Task List)). Some of the tasks were to be done during the day; others were to be done near or after the store's closing. R.65-10, at 61-63 (J. Sheperd Dep. Exs. 11, 12 (Daily Task List)). Mopping and buffing the floor were closing tasks. Id. at 61-63 (J. Sheperd Dep. Exs. 11, 12 (Daily Task List)); R.65-13, at 7 (Wilmot Dep. 67:1-:5). Notwithstanding the randomly generated list, the store manager, the assistant store manager and a PSM (when the store manager was not there and one of them was acting as the store manager) were free to reassign tasks, and regularly did so. R.65-12, at 45-46 (Wilmot 45:6-:17, 45:23-46:4); R.65-13, at 63 (Wilmot Dep. 63:5- 63:22); R.65-16, at 16-17 (Smith Dep. 16:19-17:4); R.65-19, at 19-20, 24 (Thompson Dep. 19:25-20:11, 24:18-:23). By all accounts, Sheperd was quite good at his job. His district manager, Steve Smith, testified that Sheperd was a "good employee," "a hard worker and . . . good with customers."<3> R.65-16, at 15 (Smith Dep. 15:18-:20). Steven Thompson, his last store manager, testified that Sheperd "was a good salesman. He could sell ice to an Eskimo when it comes to salesmanship. He would always [do] . . . what it takes to do the job right." R.65-20, at 118 (Thompson Dep. 118:4-:9). In fact, Thompson testified that "[p]eople would come in and ask for John because basically they knew him and he had the skills to get them the right things to do the job." Id. at 119 (Thompson Dep. 119:1-:8). "His [sales] statistics would stand at or above" the other employees in the store. Id. at 119 (Thompson Dep. 119:23-:25). Sheperd himself testified that he "love[d] his job." R.65-8, at 145 (J. Sheperd Dep. 145:10). John Sheperd ably performed his job even though he suffered from a bad back due to an injury he sustained while working for a previous employer. R.65-6, at 30 (J. Sheperd Dep. 30:9-:14); R.65-10, at 52 (J. Sheperd Dep. Ex. 4. at 1). The impairment began in 1996 when Sheperd was injured while stacking a pallet of 30- to 40-pound boxes, has been reaggravated many times in the ensuing years, and is expected to be permanent.<4> Because of this chronic, permanent condition, Sheperd experiences some combination of impairments to the trapezius and rhomboid muscles of the upper left side of his back, degenerative disc disease of the cervical vertebrae, and a herniated disc of the cervical vertebrae, all of which result in Sheperd having a limited ability to lift things or twist or rotate his torso. R.65-4, at 9-10 (EEOC Interrogatory No. 13); R.65-6, at 34-35 (J. Sheperd Dep. 34:17-35:19). While he is capable of twisting and rotating his torso, doing so can reaggravate his injuries and result in what he and his doctor describe as "flare-ups" of the myofacial tenderness, which bring on severe pain in his neck and back. R.65-4, at 9-10 (EEOC Interrogatory No. 13); R.65-9, at 24 (J. Sheperd Dep. 204:14-:18); see also R.65-11, at 29 (S. Sheperd Dep. 29:8-:12). During these flare-ups, Sheperd's back and neck swell, blood rushes to his face and head, and his body becomes drenched in sweat. R.65-9, at 23 (J. Sheperd Dep. 203:11-:19). Headaches, which can last days, often follow the flare-ups. Id. at 23-24 (J. Sheperd Dep. 203:20-04:3). The cramping and swelling have, on occasion, been so bad as to cause vomiting. R.65-27, at 39 (Katchen Dep. 39:19-:23). Even with diligent care, Sheperd cannot control when the flare-ups will occur. Id. at 16-17 (Katchen Dep. 16:6-:23, 17:20-18:6). At first Sheperd's back condition presented few problems for him at AutoZone, but after working there for a short time, he began to have flare-ups of his back condition. R.65-6, at 58 (J. Sheperd Dep. 58:5-:9). By April 1999, he and his doctor concluded that the flare-ups were caused by his performance of the mopping and buffing duties. Id. at 58, 61-62 (J. Sheperd Dep. 58:12-:20, 61:19-62:23). After pinpointing the cause of the flare-ups, Sheperd requested that he be allowed to refrain from mopping. It appears from the record evidence that this request could have been granted. Mopping was a minor part of a PSM's day; it took about 15 to 30 minutes to complete, depending on the floor's condition, and included mopping with a mop and buffing the floor with a buffing machine. R.65-7, at 61 (J. Sheperd Dep. 61:7-:16). And, as Miller testified, a PSM could delegate the mopping and buffing tasks to others and indeed, by the time of her deposition in January 2009, PSMs were no longer required to buff the floor at all as that task had been contracted out. R.65-29, at 24, 26 (Miller Dep. 24:17-:22, 26:13-:14). Likewise, one of Sheperd's store managers, Terry Wilmot, testified that the closing tasks, including mopping, "were a very small part of the Parts Sales Manager job, and there were always other closing tasks that Sheperd could perform instead of mopping or buffing the floor." R.65-15, at 34 (Wilmot Dec. ¶ 9). Indeed, Sheperd was "more or less" accommodated-at least for a time. When Sheperd worked at the Fort Madison store, the manager "more or less" accommodated his back impairment by re-assigning mopping duties to other employees when Sheperd was assigned to mop. R.65-7, at 75 (J. Sheperd Dep. 75:8- :21). However, when Steve Smith, the district manager learned of this limited accommodation, he told the Fort Madison store manager that he disapproved and ordered it stopped. Id. at 76 (J. Sheperd Dep. 76:11-:15). This pattern was repeated when Sheperd moved to the Macomb store. There, the store manager, Terry Wilmot, accommodated Sheperd by assigning mopping duties to other employees and in exchange assigned other closing duties to Sheperd. R.65- 9, at 1 (J. Sheperd Dep. 181:16-:22); R.65-13, at 10-11 (Wilmot Dep. 70:11-:16, 71:2-:6). Indeed, Sheperd transferred to the Macomb store in part because he understood that Wilmot would accommodate him, whereas his manager in Fort Madison no longer could after Smith's directive. R.65-6, at 18 (J. Sheperd Dep. 78:11-:20). The Macomb district manager at the time was aware of the practice and approved of it. R.65-13, at 11 (Wilmot Dep. 71:16-:22). But, Smith, the district manager over the Fort Madison store who disapproved of the accommodation, soon became the district manager over the Macomb store as well. R.65-16, at 9 (Smith Dep. 10:1-:18). When Smith became the district manager over the Macomb store, he pressured Wilmot to end the accommodation. Wilmot responded by telling Smith that the accommodation posed no problem, but Smith directed Wilmot not to accommodate Sheperd and instead to schedule him for the same tasks as everyone else. R.65-7, at 23-25 (J. Sheperd Dep. 83:6-85:21); R.65-15, at 35 (Wilmot Dec. ¶ 13). According to Sheperd, Smith told him that one of the other PSMs had complained that Sheperd was getting special treatment and objected to the fact that he had to mop but Sheperd did not. R.65-7, at 24 (J. Sheperd Dep. 84:15-:23). Smith even reminded Sheperd that when he worked at the Fort Macomb store Smith had told him that he was not to be accommodated. Id. (J. Sheperd Dep. 84:19-:21). Wilmot testified that Smith told him that if Sheperd did not do any of the assigned lifting or mopping, Wilmot was to issue a disciplinary write-up. R.65-13, at 16, 23 (Wilmot Dep. 76:21-77:1, 83:12-:18). Wilmot felt pressured by Smith to assign Sheperd the mopping tasks. Id. at 27-28 (Wilmot Dep. 87:14-88:3). According to Wilmot, Smith was "pretty adamant about" not accommodating Sheperd. Id. at 23-24 (Wilmot Dep. 83:21-84:1). Indeed, Smith told Wilmot that if Sheperd "can't handle the work[,] get rid of him." Id. at 60 (Wilmot Dep. 120:15- :22); R.65-14, at 34 (Wilmot Dep. 154:14-:20). Wilmot testified that he believed that Smith was pressuring him to make Sheperd's life at work difficult and stressful either to force Sheperd to quit or at the very least to provide a disciplinary record that could be used to terminate Sheperd-"even though [according to Wilmot] there was no real justification for firing Shepherd." R.65-13, at 30-31 (Wilmot Dep. 90:18-91:7); R.65-14, at 37-38 (Wilmot Dep. 157:22-58:20); R.65-15, at 35 (Wilmot Dec. ¶ 14). Starting in Spring 2002, Smith told Wilmot that if Wilmot did not have write-ups of Sheperd for Smith when he came to the store, Smith would write-up Wilmot. R.65-13, at 40 (Wilmot Dep. 100:8-:18); R.65-15, at 35 (Wilmot Dec. ¶ 14). Wilmot testified that when Smith visited the store he followed the directive and provided Smith with write-ups of Sheperd for failing to carry out the mopping duties. R.65-13, at 30, 40-41 (Wilmot Dep. 90:1-:7, 100:19-01:2). Even though Wilmot would on occasion write Sheperd up for failing to mop, Wilmot still limited Sheperd's mopping somewhat by requiring him only to mop the front of the store as opposed to the entire store, in the hopes that that accommodation would minimize the risk of flare-ups. R.65-7, at 23-24 (J. Sheperd Dep. 83:17-84:4). According to Wilmot, he did not want to assign the mopping task to Sheperd in light of the directions from Sheperd's treating physician. R.65-13, at 25 (Wilmot Dep. 85:8-:10); see also R.65-7, at 23-24 (J. Sheperd Dep. 83:23-84:4).<5> With this limited accommodation, Sheperd's back problems flared up less often, but flared up nonetheless. R.65-7, at 24 (J. Sheperd Dep. 84:5-:6). Some of these flare-ups caused re-aggravation of Sheperd's impairment and resulted in his missing work on medical leaves of absence. Id. at 26, 47-48 (J. Sheperd Dep. 86:8- 86:12, 107:23-108:4). He was on medical leave due to reaggravation of his back impairment from January 31 to February 6, 2001; October 30 to November 23, 2001; and June 21 to July 5, 2002. R.65-35, at 42-44 (EEOC Response to Requests for Admission of Facts). During these leaves, Sheperd would undergo various treatments. R.65-27, at 28- 29 (Katchen Dep. 28:4-:12). When he returned from the leaves of absence, he would provide his store manager with a medical evaluation form, which was filled out by his doctor, described his impairment, and enumerated his physical restrictions. See, e.g., R.65-18, at 1-4 (AutoZone Return-to-Work Forms). The store manager then forwarded the medical evaluation form to AutoZone's Human Resources office. See, e.g., R.65-7, at 89-90 (J. Sheperd Dep. 89:21-90:23); R.65-18, at 2 (Smith Dep. Ex. 3). Even the limited accommodation Wilmot provided, however, came to an end. In July 2002, Wilmot was demoted from the store manager position by Smith and replaced with Steve Thompson. R.65-7, at 20 (J. Sheperd Dep. 80:20-:23); R.65-15, at 35 (Wilmot Dec. ¶¶ 15-16). Both Wilmot and Sheperd believed that Wilmot was demoted, at least in part, because Smith disapproved of Wilmot's limited accommodation of Sheperd's disability. R-65-7, at 21 (J. Sheperd Dep. 81:9-:23); R.65-14, at 45 (Wilmot Dep. 165:1-:15). The new store manager, Thompson, did as Smith directed. He scheduled Sheperd for mopping duties even though Sheperd repeatedly informed him, and others at AutoZone, that the mopping would cause his upper back to swell. R.65-7, at 45 (J. Sheperd Dep. 105:1-:22). Thompson relayed to Sheperd that Smith had told him that Sheperd was to be assigned the same tasks as the other PSMs. Id. at 51-52 (J. Sheperd Dep. 111:21-12:5). Smith directed Thompson to tell Sheperd that if he could not do what he was assigned to do, he needed to find another job. Id. at 45 (J. Sheperd Dep. 105:11-:16). Wilmot testified that Thompson told him that Smith decided not to accommodate Sheperd and instead intended on preparing the groundwork for an eventual termination. R.65- 12, at 108-09 (Wilmot Dep. 108:19-09:15). As Wilmot stated in his declaration: "Thompson told me that Smith had told him that Shepherd [sic] was 'not up to par.' I responded to Thompson by saying 'Oh, so the pressure's started?' or words to that effect. Thompson responded that 'it might be headed that way' and that Shepherd [sic] 'might have to do his tasks properly or else.'" R.65-15, at 35 (Wilmot Dec. ¶ 16). Indeed, Smith directly told Sheperd that he would not be accommodated and if he could not perform all the tasks assigned to him, he needed to find another job. R.65-7, at 45 (J. Sheperd Dep. 105:11-:22); R.65-8, at 18 (J. Sheperd. Dep. 138:3-:9). Smith told Sheperd that he was not trying to be a "hard ass," but he just did not feel it was right for Sheperd to get "preferential" treatment. R.65-9, at 32-33 (J. Sheperd Dep. 212:11-:17, 212:18-13:23). Sheperd contemporaneously told his doctor about his failed efforts to be accommodated. As Dr. Katchen testified, "Sheperd tried to get the manager to allow him to [have others do the mopping], and at one time people had offered, and [then] that wasn't allowed." R.65-27, at 36-37 (Katchen Dep. 36:23-37:3).<6> Smith and Thompson disputed Sheperd and Wilmot's contention that they refused to accommodate Sheperd. Smith acknowledged that he learned of Sheperd's impairment during one of his visits to the store early in his tenure as the District Manager. R.65-16, at 16-17 (Smith Dep. 17:21-18:2). As Smith testified, "John came to me and said that he couldn't do the mopping or the scrubbing or buffing, and I simply told him, that's fine, John. But I said, it's part of everybody's duties to do that unless you have restrictions or something, and he said, well, I've got them." Id. at 17 (Smith Dep. 18:2-:8). Even though he did not recall whether he told Sheperd that he could be accommodated, he was sure that he had told Sheperd that he had "to follow [his] restrictions." Id. at 35 (Smith Dep. 36:9-:16). Thompson, for his part, testified that he was both unaware of Sheperd's disability and actively accommodated it. Thompson claimed that he was unaware that Sheperd had any medical restrictions prior to Sheperd's final leave that began in September 2003, R.65-19, at 33-34 (Thompson Dep. 33:15-34:9), but that he told Sheperd "not to do those things that was in violation of his doctor's order," id. at 36- 37 (Thompson Dep. 36:11-37:5); see also R.65-21, at 27 (Thompson Dep. 147:5-:11). Then he testified that "after [he] found out about John's disability . . . [he] would take and [he] would strike out those tasks that he wasn't to perform, as a matter of fact, on the sheets." R.65-20, at 4 (Thompson Dep. 64:14-65:1). When shown one of Sheperd's physical restrictions forms, that Thompson himself forwarded to HR in April 2003, he admitted that he knew about Sheperd's disability prior to September 2003, R.65-21, at 18 (Thompson Dep. 138:7-:11), only to retract that and testify that "[r]eally the first time I became aware that John had any type of disabilities was after he hurt himself mopping" in September 2003, id. at 19 (Thompson Dep. 139:23-40:2). He then reversed himself and admitted (for a second time) that he learned of Sheperd's disability in mid-August 2002. Id. at 39-40 (Thompson Dep. 160:20-:24). Thompson did not deny that he told Sheperd that he would write him up if he failed to complete all his daily tasks, testifying only that he could not recall whether he told Sheperd that he was going to give him a corrective action review if he did not perform all the daily tasks to which he was assigned. R.65-19, at 37 (Thompson Dep. 37:10-:16). AutoZone's refusal to accommodate Sheperd took a physical toll on him. From March to September 2003, flare-ups of his back impairment occurred frequently. R.65-8, at 50-51 (J. Sheperd Dep. 170:13-71:4). Indeed, Sheperd was on medical leave from March 28 to April 11, 2003 due to a flare-up caused by the mopping. R.65-7, at 47-48 (J. Sheperd Dep. 107:3-08:4); R.65-27, at 23 (Katchen Dep. 23:9- :11). Any time he had a flare-up, which manifested itself as often as four or five times a week during this time period, his wife, Susan Sheperd, would have to assist him in personal grooming. R.65-8, at 50-51 (J. Sheperd Dep. 170:13-171:4); R.65-11, at 30 (S. Sheperd Dep. 30:2-:12). She would assist him in getting dressed. R.65-8, at 42 (J. Sheperd Dep. 162:12-63:4). He would not be able to put on his pants without assistance. R.65-11, at 30 (S. Sheperd Dep. 30:13-:15). He would not be able to put on his shoes. R.65-9, at 5 (J. Sheperd Dep. 185:6-:14); R.65-11, at 30 (S. Sheperd Dep. 30:16-:17). Indeed, the strain that putting on shoes placed on his neck and back led him to switch to wearing only slip-on shoes. Id. at 5 (J. Sheperd Dep. 185:20-:21). While suffering from a flare-up, he also could not wash himself or groom his hair. Mrs. Sheperd would wash his feet and back when he showered. Id. at 5 (J. Sheperd Dep. 185:1-:4); R.65-11, at 34 (S. Sheperd Dep. 34:5-:6). She would shampoo his hair. J. Sheperd Dep. 164:3-:5; R.65-11, at 33-34 (S. Sheperd 33:23- 34:4). And she would brush and style his hair. R.65-8, at 43 (J. Sheperd Dep. 163:19-:20); R.65-11, at 10-11 (S. Sheperd Dep. 10:21-11:3). Sheperd also struggled with brushing his teeth, both when he was experiencing a flare-up, R.65-11, at 30 (S. Sheperd Dep. 30:18-:23), and not, R.65-9, at 3-4 (J. Sheperd Dep. 183:20-184:1). The motion would cause tightness in his neck, resulting in headaches. Id. at 3-4 (J. Sheperd Dep. 183:20-84:1). To compensate, Sheperd attempted to simply use mouth wash and rinse his teeth, rather than engaging in the motion that brushing requires, but this method of maintaining oral hygiene resulted in dental problems. Id. at 4 (J. Sheperd Dep. 184:1-:19). Sheperd eventually had his teeth removed and now wears dentures. Id. at 4 (J. Sheperd Dep. 183:8-:11); R.65-11, at 7 (S. Sheperd Dep. 7:2-:5).<7> He also was unable to do household chores, such as, among other things, taking out the trash, sweeping, vacuuming, driving, cooking, basic home repairs, lawn care, and laundry. R.65-9, at 7-9, 15 (J. Sheperd Dep. 187:12-88:1, 188:21-89:5, 195:15-:20). When he had a flare-up he could not take out the trash, sweep, or vacuum. R.65-8, at 51-52 (J. Sheperd Dep. 171:20-72:4); R.65-9, at 15 (J. Sheperd Dep. 195:15-:20); R.65-11, at 17-18, 31 (S. Sheperd Dep. 17:22-18:13, 31:1-:6). He avoided driving a car, preferring his truck because it was easier to get in and out of. R.65-8, at 44 (J. Sheperd Dep. 164:19-:23). Even then, he did not drive far. As his wife testified, "[h]e can't drive a very long, lengthy period of time." R.65-11, at 11 (S. Sheperd Dep. 11:4-:12). He avoided cooking for himself because the leaning that is required to prepare food caused his back to tighten up. R.65-8, at 51 (J. Sheperd Dep. 171:5-:13). Mrs. Sheperd testified that he had a limited ability to rake leaves, and did not shovel snow. R.65-11, at 19-20 (S. Sheperd Dep. 19:17-20:9). He could not perform basic home repairs that he used to be able to do. R.65-9, at 12-13 (J. Sheperd Dep. 192:17-93:7). He tried mowing the lawn with a push mower but that caused problems. R.65-11, at 31-32 (S. Sheperd Dep. 31:17-32:1). The Sheperds bought a riding lawn mower, but Sheperd could not operate it because turning the wheel caused him pain. Id. at 32 (S. Sheperd Dep. 32:2-:8). He did not do laundry because putting the laundry into the washing machine and moving it to the dryer caused his back to tighten up. R.65-8, at 51 (J. Sheperd Dep. 171:14-:22). He tried to do laundry once, hoping to surprise his wife, but, as she put it, "Well, he tried. We had bought a new washer and dryer and he had tried to surprise me but it didn't pan out that way because it's a side, a loader, not a front, you know, a top loader. And he couldn't do that." R.65-11, at 16-17 (S. Sheperd Dep. 16:20-17:3). His reliance on others to perform personal care tasks emotionally burdened him. In April 2003, his treating physician diagnosed him with depression and prescribed an anti-depressant because, as the doctor testified, Sheperd "was starting to have some trouble with his own family because of his pain." R.65-27, at 37-38 (Katchen Dep. 37:23-38:3). AutoZone's refusal to accommodate Sheperd came to a head on September 13, 2003, culminating in a reaggravation of Sheperd's back impairment. Thompson assigned Sheperd to mop and warned him that he would check the next morning to make sure that Sheperd had completed his assigned tasks. R.65-9, at 31 (J. Sheperd Dep. 211:5-:14). Thompson forbid Sheperd from delegating the task. Id. at 31 (J. Sheperd Dep. 211:5-:6). Concerned about the repercussions for failing to do so, Sheperd began to mop. Id. at 31-32 (J. Sheperd Dep. 211:15-13:1). While attempting to wring out the mop, he felt a "sharp pain." Id. at 35 (J. Sheperd Dep. 215:6-:7). As the accident report stated, Sheperd felt a sharp, throbbing, and burning sensation throughout his upper and lower back and neck, which caused him to have a bad headache and continuous sweat. R.65-23, at 28 (Thompson Dep. Ex. 6). Following the incident, Smith sent Sheperd a letter, dated September 15, 2003, to "clarify" the accommodation. It states in its entirety: Dear John, It has come to our attention that you are performing certain tasks that you should not be performing, such as, scrubbing, buffing, and sweeping. Moving forward, if you are scheduled to do any of these tasks, the manager will draw a line through the task and initial it, even though the scheduling system may schedule you to perform that task. It is just as much your responsibility as it is ours, to make sure you are not performing tasks that you are restricted from doing. Should this become a problem in the future, please notify your DM, Steven Smith, or your regional manager, Dennis LeRiche. Sincerely, Steven Smith District Manager R.65-18, at 11 (Smith Dep. Ex. 11). Smith claimed that he wrote this letter "so there would not be any more miscommunications as to exactly what John could or could not do according to his restrictions." R.65-16, at 35 (Smith Dep. 35:9-:13). After the September 13 injury, Sheperd's physician withheld him from work for a time, and during the next few months, he underwent various treatments-heat treatment, medications, and deep tissue massage. R.65-27, at 24-25, 27 (Katchen Dep. 24:10-25:4, 27:18-:20); R.65-28, at 44-48 (Katchen Dep. Ex. 2). On December 1, 2003, he was examined by an independent medical examiner ("IME") at AutoZone's request. R.65-23, at 56 (IME Report). The IME reported on December 10, 2003, that he had fully recovered from the September 13, 2003, injury and could return to work, subject to the same medical restrictions that previously had been in place. Id. at 56-62. In a letter to an AutoZone attorney, LaJuene Rose, dated December 10, 2003, with the subject line "Discrimination charges by John P. Sheperd III," Thompson wrote: John has physical restrictions which preclude him from some activities such as wet mopping the floor, buffing, and lifting over certain weight. John has been told that even if he is inadvertently scheduled to perform a task that would violate his physical limitations (the scheduling system assigns tasks and cannot be blocked) that he has a responsibility not to perform these tasks. He is to notify the manager on duty or if he is the senior management; use his managerial authority and delegate the completion of the task to someone else. John has never been forced to violate his restrictions. John has been on workers compensation since 15 September 2003 and remains out at the time this statement was written. Id. at 41 (Thompson Dep. Ex. 15) (emphasis in original). On January 16, 2004, Dr. Katchen examined Sheperd and released him to return to work. R.65-27, at 26 (Katchen Dep. 26:10-:18). Sheperd gave the physical capabilities form to Thompson who then submitted it to Smith. R.65-21, at 32-33 (Thompson Dep. 152:22-53:17). His restrictions on the January 2004 form were virtually identical to the restrictions that he was under prior to the September 2003 accident. R.65-10, at 57 (Sheperd Dep. Ex. 7 (Jan. 16, 2004 return-to-work form)). The form provided no additional restrictions, but like the previous one, made clear that "no mopping or buffing [of the] floor should be performed because of twisting of the upper body." Id. Indeed, Thompson testified that he believed that the restrictions enumerated in the January 2004 form were "substantially the same restrictions that were in place before Mr. Sheperd went on leave in September 2003." R.65-21, at 34 (Thompson Dep. 155:6-:20). After receiving the January 2004 return-to-work form, Thompson told AutoZone management that he had no interest in accommodating Sheperd. In a letter faxed on January 19, 2004, he wrote Jackie Moore, AutoZone's person who handled disability issues, to "voice his concerns" about accommodating Sheperd's disability, writing that the "[t]wisting of the upper body . . . is a physical requirement performed in every [thing] that we do," that he thought "it was unfair to ask the other employees to work under these conditions," and that he found "it difficult to serve our customers within our cultural beliefs with these types of restrictions." R.65-23, at 32 (Thompson Dep. Ex. 8). On January 30 or 31, 2004, Thompson left a voicemail for Sheperd, stating that AutoZone's Benefits department told him that Sheperd could not return to work and that he was being kept on leave until he could do the job without any restrictions. R.65-8, at 60 (Sheperd Dep. 180:16-:23); R.65-9, at 2 (Sheperd Dep. 182:4-83:3). Over the ensuing months, Sheperd periodically would go to the store to ask whether and when he could return to work, but was told that nothing had changed. R.65-8, at 60 (Sheperd Dep. 180:16-:23). Eventually, AutoZone told him on February 23, 2005, that his employment "will be" terminated on September 14, 2004, pursuant to AutoZone's 12-month maximum leave policy. R.65-10, at 70 (Sheperd Dep. Ex. 16). II.Litigation History On June 13, 2007, the EEOC filed a complaint against AutoZone in federal district court, alleging that: (1) since at least March 2003, AutoZone failed to make reasonable accommodations to Sheperd's disability by requiring him to mop floors while he worked at the Macomb Store; (2) AutoZone's decision not to return him to work in January 2004 was because of his disability or the need to accommodate the disability; (3) AutoZone's decision not to return him to work in January 2004 was a failure to make reasonable accommodations to his disability; and (4) AutoZone retaliated against him for filing EEOC charges by keeping him on an involuntary leave for over a year, and ultimately firing him. Following discovery, AutoZone moved for summary judgment on all claims brought by the EEOC, arguing that (1) the March to September 2003 accommodation claim should be dismissed on the ground that Sheperd was not disabled between March 2003 and September 2003, because, according to AutoZone, his physical impairment did not substantially limit a major life activity insofar as "[t]he symptoms of his impairment over this time were exhibited by intermittent flare-ups, rather than a constant debilitating condition"; and (2) the January 2004 accommodation, discrimination, and retaliation claims should be dismissed for various reasons. R.65. The district court granted summary judgment on the March to September 2003 accommodation claim, reasoning that (1) prior to September 12, 2003, Sheperd was not substantially limited in caring for himself (although the district court also stated that he was substantially limited in the major life activity of reproduction); and (2) Sheperd did not suffer any adverse action prior to September 12, 2003. App., at A-3 to A-34 (R.91). As for the January 2004 accommodation, discrimination, and retaliation claims, the district court found that there were material factual disputes and allowed those claims to proceed to trial. Id. After the trial, the EEOC moved to set aside the summary judgment grant on the March to September 2003 accommodation claim. The district court denied that motion but clarified its earlier order holding that Sheperd was not substantially limited in caring for himself, stating that the evidence did not create a triable question because "the evidence was undisputed that the flare ups of pain were intermittent or sporadic, and that occasionally they were severe enough that he required assistance in the activities of daily living prior to the September injury. Evidence to the contrary was non-existent." App., at A-37 (R.166, at 3). The court made no comment on its alternative ground for granting summary judgment-that the Commission failed to identify an adverse action taken against Sheperd. SUMMARY OF ARGUMENT The EEOC presented sufficient evidence to support a finding by a reasonable jury that John Sheperd experienced a chronic, enduring, painful, and permanent impairment that substantially limited his ability to care for himself as compared to the average person in the general population. Thus, the EEOC provided sufficient proof to survive summary judgment on the issue of whether Sheperd was disabled under the ADA. Notwithstanding this showing, the district court granted summary judgment to AutoZone on the ground that Sheperd was not disabled under the ADA, reasoning that the manifestations of Sheperd's impairment were "sporadic" or "intermittent" and thus were not substantially limiting. In so doing, the district court erred in several ways. First, the evidence shows that the manifestations of Sheperd's impairment were frequent, and not sporadic. Second, the district court erred in equating an intermittent impairment, which is generally not a disability, with the intermittent manifestation of the disabling aspects of a permanent impairment, which is a disability if the manifestations substantially limit a major life activity. Third, and relatedly, the district court erred in embracing a categorical approach to the disability determination and failing to make an individualized assessment of whether Sheperd's impairment was substantially limiting: once the district court concluded that his manifestations were "intermittent" or "sporadic," it concluded as a matter of law that Sheperd was not disabled. Fourth, the district court erred in failing to recognize that the EEOC presented sufficient evidence to show that the disabling manifestations of Sheperd's permanent impairment, even if they could be considered episodic, nevertheless substantially limited his ability to take care of himself. And fifth, the district court erred in assessing Sheperd's disability based upon evidence of events irrelevant to a disability determination and that occurred several years prior to the accrual of the claims in this case. The district court also erred in granting summary judgment to AutoZone on the March to September 2003 accommodation claim on the ground that the EEOC failed to present proof of an adverse employment action. It is well-settled that an adverse employment action is not an element of an accommodation claim, and thus, the EEOC was under no obligation to provide proof of an adverse employment action to survive summary judgment. ARGUMENT The district court erred in concluding that there was insufficient evidence in the record to support a jury finding that Sheperd was disabled. I. Standard of Review This Court reviews a district court's award of summary judgment de novo. Roger Whitmore's Auto. Servs., Inc. v. Lake County, Ill., 424 F.3d 659, 666 (7th Cir. 2005). This Court views the facts and make all reasonable inferences therefrom in the light most favorable to the nonmoving party, the EEOC. See id. at 666-67. District courts "must avoid the temptation to use summary judgment 'as an abbreviated trial.'" Am. Int'l Adjustment Co. v. Galvin, 86 F.3d 1455, 1459 (7th Cir. 1996). Moreover, the summary judgment standard "is applied with added rigor in employment discrimination cases[.]" King v. Preferred Technical Group, 166 F.3d 887, 890 (7th Cir. 1999) (quoting Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993)). "Summary judgment is appropriate when there is only one logical conclusion the factfinder can reach." Marozsan v. United States, 90 F.3d 1284, 1290 (7th Cir. 1996). On the other hand, it is not appropriate if there is a "genuine issue" of a material fact, that is, if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." AA Sales & Assocs. v. Coni-Seal, Inc., 550 F.3d 605, 608-09 (7th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); see also EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 436-37 (7th Cir. 2000) (same). In reviewing the summary judgment grant, "it is not [this Court's] role to come to a decision as to whether [Sheperd] was disabled under the ADA. Rather, [this Court] only need decide whether a rational jury, viewing the evidence in the light most favorable to the [EEOC], could come to such a decision." See Sears, 233 F.3d at 438. II.The District Court Erred in Granting Summary Judgment to AutoZone on the March to September 2003 Accommodation Claim. A.There is sufficient evidence to support a finding that Sheperd's back impairment substantially limited the major life activity of caring for himself. The district court erred in dismissing the September to March 2003 accommodation claim on the basis that Sheperd was not disabled for purposes of the ADA. An individual is disabled under the ADA if he has an impairment that substantially limits one or more of his major life activities, 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),<8> and based on the evidence in the record, a jury could find that Sheperd had a physical impairment that substantially limited him in the major life activity of caring for himself. The Supreme Court, in construing the ADA provisions, has set forth a three-part analysis to determine whether a plaintiff has shown a substantial limitation in a major life activity, which asks: (1) whether the condition alleged constitutes a physical or mental impairment, (2) whether that impairment affects a major life activity, and (3) whether the impairment operates as a substantial limit on the major life activity asserted. See Bragdon v. Abbott, 524 U.S. 624, 631-42 (1998); Nawrot v. CPC Int'l, 277 F.3d 896, 903-04 (7th Cir. 2002); see also 42 U.S.C. § 12102(2)(A). AutoZone concedes that Sheperd's back condition is a physical impairment. See R.65, at 63 (AutoZone MSJ); see also Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641-42 (2d Cir. 1998) (concluding that police officers' conditions arising from back injuries were "physical impairments" under ADA, in that they affected officers' musculoskeletal systems); cf. Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 951 (7th Cir. 2000) ("Because rheumatoid arthritis is a physiological condition that affects the musculoskeletal system, it clearly qualifies as an impairment."). Sheperd's impairment affected a major life activity in that the impairment limited his ability to care for himself.<9> This Court has recognized that caring for oneself constitutes a major life activity under the ADA. Nawrot, 277 F.3d at 905; see also 29 C.F.R. § 1630.2(i).<10> "[C]aring for oneself' encompasses normal activities of daily living[,] including feeding oneself, driving, grooming, and cleaning home." Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871 (2d Cir. 1998) (citing Dutcher v. Ingalls Shipbldg., 53 F.3d 723, 726 (5th Cir. 1995)). Indeed, the limitations implicated in this case are of the most profound kind; the Supreme Court has recognized that "household chores, bathing, and brushing one's teeth are among the types of manual tasks of central importance to people's daily lives." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 201 (2002). To be substantially limiting, the impairment must make the individual "[u]nable to perform a major life activity that the average person in the general population can perform" or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 CFR § 1630.2(j); see also Sutton v. United Airlines, 527 U.S. 471, 480 (1999); Nawrot, 277 F.3d at 904; Sears, 233 F.3d at 438. An impairment need not cause an "utter inability" to perform the major life activity in order to constitute a substantial limitation on that activity. Branham v. Snow, 392 F.3d 896, 902 (7th Cir. 2004). As the Supreme Court has explained, "When significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable." Bragdon, 524 U.S. at 641. And, in evaluating limitations on a person's ability to care for himself, courts have routinely held that individuals who need more time to accomplish such tasks can establish that they are substantially limited. See Fenney v. Dakota, Minn. & E.R. Co., 327 F.3d 707, 715 (8th Cir. 2003) (finding that plaintiff who testified that "it takes him twice as long as an average person to perform his 'taking care of himself' tasks-bathing, shaving, preparing a meal, dressing, and going to the restroom" had presented enough evidence to survive summary judgment on the question of whether he was substantially limited in the major life activity of caring for himself); Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1134-35 (9th Cir. 2001) (concluding that taking three times as long as most people to shower, wash her hands, dress, and handle or cook food was a substantially limitation on the major life activity of caring for oneself). Here, there is sufficient evidence in the record for a trier of fact to conclude that Sheperd's back impairment substantially limited his ability to perform those rudimentary activities "that the average person in the general population can perform with little or no difficulty." 29 C.F.R. pt. 1630, app. § 1630.2(i). During the period relevant to the accommodation claim, there is evidence in the record to support an inference that on nearly every day Sheperd 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 supra pp. 16-18. Indeed, AutoZone, in its Motion for Summary Judgment, listed the following as undisputed material facts: (1) "Sheperd 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, Sheperd'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, Sheperd had flair-ups [sic] that would require more of [Mrs. Sheperd's] assistance"; and (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." R.65, at 14, 19 (Nos. 37, 38, 75 & 76) see also R.65, at 20 (Nos. 77, 78 & 79) ("When Sheperd 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."). The district court's conclusion that "[p]rior to [September 2003] he was taking care of himself independently most of the time, requiring assistance only occasionally," App., at A-28 (R-91, at 26), therefore, is simply unsupported by the evidence in the record. Instead, the evidence showing an inability or limited ability to complete personal care tasks without assistance supports a reasonable inference that he was substantially limited in caring for himself. Sheperd, therefore, was even more limited than the plaintiffs in Fenney and Humphrey in that he did not just need more time to complete basic tasks; he was frequently unable to do them at all. Instead, his limitations were more similar to those of the individual in EEOC v. United Parcel Serv., 249 F.3d 557, 562-63 (6th Cir. 2001), who suffered allergies that forced him to spend all of his non-working hours in bed and required his wife to assume his household duties. As the Sixth Circuit held in that case, a jury could find that he was substantially limited in the major life activity of caring for himself. Id. In addition to considering the nature and severity of the limitations, this Court has noted, "in determining whether an impairment can be said to 'substantially limit' the major life activity of the individual, a court ought to consider . . . the actual or expected duration of the impairment, and the actual or anticipated long- term impact of the impairment."<11> Lawson v. CSX Transp., Inc., 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) (1995), available at http://www.eeoc.gov/policy/docs/902cm.html (noting that an impairment's duration is a "secondary factor that may affect the analysis" of whether it substantially limits a major life activity); cf. Toyota, 534 U.S. at 198 (stating that an "impairment's impact must . . . be permanent or long term"). Here, the long-term duration and permanent impact of Sheperd's impairment were well established. In April 2003, his treating physician noted that his condition was "permanent," and had become "even more serious," "due to previous reaggravating injuries" likely caused by the mopping. R.65-18, at 3 (Smith Dep. Ex. 4); R.65-23, at 30 (Thompson Dep. Ex. 7). Indeed, by April 2003, Sheperd had already suffered from the impairment for nearly seven years. See supra note 4. From 1996 on, he had suffered episodically from prolonged swelling and severe tenderness of the muscles in his back, causing him to miss periods of work and experience incapacitating headaches, some of which led to vomiting. Id. For years, he has been subjected to pressure point injections, TENS therapy, medication, and has relied on others to perform many of the daily tasks of personal life. Id.; see also supra pp. 16-18. And for years, doctors have reported that Sheperd's impairment is permanent. See supra note 4. While it can be controlled to some degree with medications, physical therapy, TENS, and injections, and by refraining from physical activities that aggravate the impairment, physical activity that exercises his back muscles in a particular way will lead to debilitating flare-ups, and as a consequence, Sheperd must be careful how he moves. Id.; see also Nawrot, 277 F.3d at 905 (noting that a diabetic's impairment was substantially limiting in part because he could not control when a diabetic episode would occur and has to be constantly mindful of a potential episode). Despite all this evidence showing a chronic, enduring, painful, and permanent impairment that substantially limited his ability to perform self-care tasks central to daily life, the district court concluded that the EEOC failed to show that he was disabled based upon his personal care limitations because, according to the district court, his personal care limitations were "intermittent" or "sporadic" during the relevant time period. App., at A-27 (R.91, at 25); App., at A-37 (R.166, at 3). As discussed, however, the record shows that Sheperd's episodes of debilitating limitations occurred frequently (at least several times a week), thus "contrary to the magistrate judge's understanding, [Sheperd's] disability was not 'intermittent'" or "sporadic." See EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 618 (5th Cir. 2009) (concluding that an impairment that, among other things, limited the major life activity of thinking for an hour and a half to two hours a day was not "intermittent"). In any event, the district court erred, not only because Sheperd's manifestations were severe and frequent enough not to be considered "intermittent," but because, rather than evaluating the severity and frequency of the episodes in this case, it relied on the episodic nature of the disability to conclude that it was not substantially limiting. While it is true, as this Court has noted, that "'intermittent' impairments . . . are not disabilities," when an individual has a permanent impairment with debilitating episodes, it is crucial that a court "consider the specific facts of [the] case." Brunker v. Schwan's Home Serv., 583 F.3d 1004, 1008 (7th Cir. 2009). Simply labeling Sheperd's disabling manifestations as "sporadic" or "intermittent" does not answer whether his impairment substantially limited a major life activity. As this Court has held, "[t]he determination whether a particular person with an impairment is substantially limited must be individualized[.]" Branham, 392 F.3d at 903 (emphasis added); see also 42 U.S.C. § 12102(2)(A) (requiring that disabilities be evaluated "with respect to an individual" and be determined based on whether an impairment substantially limits the "major life activities of such individual"); Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999) ("[W]hether a person has a disability under the ADA is an individualized inquiry."). Indeed, "[t]he evidence needed to establish the limiting qualities of a particular impairment almost always will be unique to that impairment and to the individual involved." Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 24 (1st Cir. 2002). The district court's reliance on Brunker makes its adoption of a categorical approach, and its error in so doing, apparent. According to the district court, the Brunker Court concluded that, in that case, the plaintiff's disabling "symptoms were intermittent," and accordingly, he was not disabled under the ADA. See App., at A-37 (R.166, at 3). Applying Brunker, the district court reasoned that Sheperd's "flare-ups of pain were intermittent or sporadic" and thus he was not disabled. See id. The district court, however, failed to acknowledge that the evidence in Brunker showed that the limiting effects of Brunker's multiple sclerosis had abated by the time of the challenged employment action. This Court noted that the "physician allowed Brunker to return to work without any restriction at all" after his initial complaints of dizziness; that "[o]nce he returned, he drove the same route by himself and completed it just as quickly as he had in the past," that is, his impairment did not limit him at work; and that his "dizziness episodes, previously a daily occurrence, were occurring less frequently," in other words, his condition had improved at the time he was fired. Brunker, 583 F.3d at 1008. Here, the evidence shows that during the relevant time period Sheperd worked with physical restrictions, which if anything, were getting more restrictive, not less, compare R.65-18, at 2 (July 3, 2002, medical restrictions form that states that he should be "twisting [his] upper body" "not at all"), with id. at 3 (April 9, 2003, medical restriction form that states that he should be "twisting [his] upper body" "not at all," and expressly states that "due to previous reaggravating injuries caused by mopping which appears to have created an even more serious condition [;] this and similar activities [such] as operating a floor buffer should be avoided totally"); he struggled with certain tasks at work-specifically, the mopping duties; and his condition was sometimes better and sometimes worse, see R.65-8, at 34-55 (J. Sheperd Dep. 154:23-55:9). The district court fundamentally misunderstood the inquiry: it was charged with deciding whether a reasonable factfinder could conclude that Sheperd was substantially limited in the major life activity of caring for himself. That fact- intensive inquiry is not aided by simply labeling manifestations as intermittent or not. By failing to engage in an individualized assessment and, instead, adopting a categorical approach to the disability determination, the district court erred. The district court's assumption that the "sporadic" or "intermittent" label is a fatal bar to a disability determination is belied by the numerous cases-including at least three from this Court-recognizing that the disabling manifestation of a chronic impairment, even if "episodic," "sporadic," or "intermittent," can constitute a disability under the ADA. See Carmona v. Sw. Airlines Co., No. 08-51175, __ F.3d __, 2010 WL 1010592, at *9 (5th Cir. Mar. 22, 2010) (concluding that periodic "flare- ups" of psoriatic arthritis substantially limited the plaintiff in the major life activity of walking even though the plaintiff conceded that "most of the time" he was able to walk, because the plaintiff nevertheless "spends anywhere from about one-third to about one-half of each month unable to walk without excruciating pain"; according to the court, "[i]t would be difficult to argue that this does not substantially limit his ability to walk"); Chevron Phillips, 570 F.3d at 618 (concluding that relapsing- remitting Chronic Fatigue Syndrome substantially limited the major life activity of thinking even though the employee was limited in thinking for only an hour and a half to two hours a day); Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 679-80 (8th Cir. 2001) (concluding that irritable bowel syndrome that "flares up only a few days per month on average" was substantially limiting because the condition is chronic, incurable, and unusually severe, and "the periods of incapacitation are unpredictable and will vex [the plaintiff] for the rest of his life"); EEOC v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001) (holding that "[a]n intermittent manifestation of a disease must be judged the same way as all other potential disabilities"); Sears, 233 F.3d at 440 n.4 (concluding that a jury could find that the employee who suffered from permanent neuropathy was substantially limited in the major life activity of walking even though the "neuropathy manifests itself in a predictable yet intermittent pattern"); Otting v. J.C. Penney Co., 223 F.3d 704, 709- 11 (8th Cir. 2000) (concluding that seizures that flared two or three times a month and lasted only 30 seconds to two minutes were an ADA disability because when the plaintiff suffers a seizure she is incapable of speaking, walking, and seeing, and noting that her "impairment is most likely permanent"); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 309 (3d Cir. 1999) (concluding that bipolar disorder that substantially limited the major life activity of thinking was a disability even though plaintiff "did not experience problems every day"); Cehrs v. Ne. Ohio Alzheimer's Research Ctr., 155 F.3d 775, 780 (6th Cir. 1998) (holding that plaintiff's pustular psoriasis may constitute an ADA disability; observing that "[i]t is not necessary that she experience flare-ups on a daily basis in order to characterize pustular psoriasis as a physical impairment"); Haschmann v. Time Warner Entm't Co., 151 F.3d 591, 599-600 (7th Cir. 1998) (treating episodic "flares," which are characteristic of lupus, as a disability under the ADA); Ryan, 135 F.3d at 871-72 (noting that a relapsing- remitting condition such as colitis could impose a substantial limitation on one's ability to care for oneself); Roush v. Weatec, Inc., 96 F.3d 840, 844 (6th Cir. 1996) (concluding that bladder infections, "though intermittent and temporary, are a characteristic of the . . . underlying impairment" of interstitial cystitis and as such, a jury could find cystitis to be a disability under the ADA); Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 543-44 (7th Cir. 1995) (holding that pressure ulcers, which were the result of paralysis, were "intermittent impairment[s] that [are] a characteristic manifestation of an admitted disability" and therefore were an aspect of the underlying disability triggering a duty of accommodation under the ADA); cf. Sensing v. Outback Steakhouse, 575 F.3d 145, 155 (1st Cir. 2009) ("We note that Sensing's position that she was only limited in major life activities during the 'flare- up' periods of her episodic MS condition is not inconsistent with being 'handicapped' within the meaning of Chapter 151B."). As this Court stated in Vande Zande, "an intermittent impairment that is a characteristic manifestation of an admitted disability is, we believe, a part of the underlying disability and hence a condition that the employer must reasonably accommodate. Often the disabling aspect of a disability is, precisely, an intermittent manifestation of the disability, rather than the underlying impairment." 44 F.3d at 544. In that case, the Court held that pressure ulcers, which were the result of paralysis, were "intermittent impairment[s] that [are] a characteristic manifestation of an admitted disability" and therefore had to be accommodated under the ADA. Likewise, in Haschmann, this Court treated episodic "flares," which are characteristic of lupus, as a disability under the ADA. 151 F.3d at 599-600. And in Sears, this Court concluded that a jury could find a person who suffered from permanent neuropathy substantially limited in the major life activity of walking even though the "neuropathy manifests itself in a predictable yet intermittent pattern." 233 F.3d at 440 n.4.<12> Here, just as in those cases, the underlying disability is constant, but the "disabling aspect" is the "intermittent manifestation of the disability." See Vande Zande, 44 F.3d at 544. As Sheperd's doctor testified, "Myofascial pain is the problem. The muscle tissue being physiologically abnormal is the etiology of that." R.65-27, at 53 (Katchen Dep. 53:2-:4). And, as his doctor testified, the muscle tissue has been abnormal since the first time he saw Sheperd in 1998 to the present, id. at 54 (Katchen Dep. 54:10-:15), the underlying impairment will never go away, and the manifestations of the impairment can be extremely disabling, id. (Katchen Dep. 54:20). The chronic, episodic nature of Sheperd's back impairment is thus much more akin to relapsing-remitting conditions like epilepsy, multiple sclerosis, and colitis where the disabling aspects "flare" but the underlying condition is permanent, "than it is to a broken leg or the flu." See Chevron Phillips, 570 F.3d at 619.<13> That a reasonable jury could conclude that Sheperd's impairment was substantially limiting also is supported by the EEOC's interpretive guidelines. The EEOC has recognized that chronic episodic conditions "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."<14> EEOC Compliance Manual, § 902 Definition of the Term "Disability," at § 902.4(d); see also EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at ¶ 8 (1997), available at http://www.eeoc.gov/policy/docs/psych.html. Moreover, as is the case here, "such conditions may require a substantial limitation of a major life activity to prevent or to lessen the likelihood or severity of recurrence. Some severe back problems . . . fall into this category." See EEOC Compliance Manual, § 902 Definition of the Term "Disability," at § 902.4(d) (emphasis added); see also Emory v. AstraZeneca Pharm. LP, 401 F.3d 174, 181 (3d Cir. 2005) ("What a plaintiff confronts, not overcomes, is the measure of substantial limitation under the ADA."). Thus, "that [Sheperd] may not have experienced problems every day does not defeat [his] claim. Chronic, episodic conditions can easily limit how well a person performs an activity as compared to the rest of the population: repeated flare-ups of poor health can have a cumulative weight that wears down a person's resolve and continually breaks apart longer-term projects." Taylor, 184 F.3d at 309. Indeed, courts have concluded that episodic disabling manifestations of a chronic impairment constitute a disability under the ADA in cases where the disabling manifestations occurred with far less frequency than the disabling manifestations suffered by Sheperd. See Carmona, 2010 WL 1010592, at *9 ("flare-ups" of disabling aspects occurred "one-third to about one-half of each month"); Chevron Phillips, 570 F.3d at 618 (disabling aspect substantially limiting to major life activity of thinking for an hour and a half to two hours per day); Maziarka, 245 F.3d at 679-80 (disabling aspect "flares up only a few days per month on average"); Otting, 223 F.3d at 709-11 (disabling aspect flared two or three times a month and lasted only 30 seconds to two minutes). Finally, the district court erred in yet another way: it assessed Sheperd's disability by considering evidence irrelevant to his limitations and about a time period other than that covered by the claim. The accommodation claim covered March to September 2003, but the district court concluded that Sheperd was not disabled in part because he had received a promotion several years earlier. Compare App., at A-27 (R.91, at 25) ("For the most part he was able to perform his job sufficiently well that he received a promotion during this time frame."), with R.65-7, at 2 (J. Sheperd Dep. 62:5-:17) (testifying that the promotion occurred some time around 1999). This was erroneous for two reasons. First, the ability to do one's job well enough to merit a promotion is irrelevant to the inquiry into substantial limitations in caring for oneself. See Chevron Phillips, 570 F.3d at 619 ("Considering plaintiffs' abilities to perform their jobs as evidence weighing against finding that they are disabled under the ADA would create an impossible catch-22 for plaintiffs: if their disabilities prevented them from doing their jobs altogether they would not be qualified individuals for the job under the ADA, and if they were able to work through their disabilities they would then not be considered disabled."). And second, even if Sheperd's promotion were somehow relevant to that inquiry, the promotion occurred long before the relevant time period. See id. at 618 ("In an ADA case, the relevant time for assessing the existence of a disability is the time of the adverse employment action."); Scheerer v. Potter, 443 F.3d 916, 919 (7th Cir. 2006) (holding that plaintiff "must be able to show that during the pertinent time period he was either prevented or severely restricted from such major daily tasks, such as walking, eating, sleeping, or sexual reproduction" (emphasis added)). The district court erred in considering Sheperd's earlier promotion in deciding whether a reasonable jury could conclude that Sheperd was disabled during the relevant time period. The EEOC presented sufficient evidence to support a finding that Sheperd suffered from a chronic, enduring, painful, and permanent impairment that substantially limited his ability to perform tasks central to daily life, and thus, the district court's grant of summary judgment on the March to September 2003 accommodation claim should be reversed. B. To the extent the district court concluded that the accommodation claim must be dismissed on the ground that the EEOC failed to show an adverse employment action, it erred as a matter of law. "To survive [AutoZone's] motion for summary judgment on h[is] failure-to- accommodate claim, [the EEOC] needed to present evidence that, if believed by a trier of fact, would show that (1) [Sheperd] is a qualified individual with a disability; (2) [AutoZone] was aware of h[is] disability; and (3) [AutoZone] failed to reasonably accommodate that disability." See Ekstrand v. Sch. Dist., 583 F.3d 972, 975 (7th Cir. 2009).<15> The ADA construes the term discriminate to include the failure to make reasonable accommodations, 42 U.S.C. § 12112(b)(5)(A), and there is no requirement that an employer take any additional action beyond denying a requested accommodation. The EEOC, therefore, was under no obligation to present evidence of another adverse employment action to survive summary judgment on the reasonable accommodation claim because it is not an element of that claim.<16> See, e.g., JPM, Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996) ("A fact is material for purposes of summary judgment only if it might effect the outcome of a case under governing law."). The district court erred when it failed to realize that "disparate treatment [and] failure-to-accommodate claims . . . are analyzed differently." See Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1125 (7th Cir. 2006). Because the district court erred in requiring proof of something that is not an element of the claim, this Court should reverse the summary judgment grant on that ground as well. CONCLUSION Because the district court erred in holding that no reasonable jury could conclude Sheperd was substantially limited in the major life activity of caring for himself and in requiring proof of an adverse employment action on a reasonable accommodation claim, we ask this Court to reverse that decision and remand this case for a trial on the accommodation claim. Respectfully submitted, P. DAVID LOPEZ General Counsel /s/ Eric A. Harrington ERIC A. HARRINGTON LORRAINE C. DAVIS Attorney Acting Associate General Counsel EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Assistant General Counsel 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 13,672 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: April 12, 2010 APPENDIX APPENDIX TABLE OF CONTENTS Seventh Circuit Rule 30(d) Statement . . . . . . . . . . . . . . . . . . . . . A-2 R.91, Memorandum Opinion and Order Granting in Part and Denying in Part AutoZone's Motion for Summary Judgment. . . . . . . . . . . . . . . . . . . . A-3 R.166, Memorandum Opinion and Order Denying EEOC's Motion to Alter Judgment and For a Partial New Trial. . . . . . . . . . . . . . . . . . . . . A-35 SEVENTH CIRCUIT RULE 30(D) STATEMENT REGARDING APPENDIX I declare that all of the materials required by parts (a) and (b) of Seventh Circuit Rule 30 are included in the attached appendix. /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 April 12, 2010 CERTIFICATE OF SERVICE I, Eric A. Harrington, hereby certify that I filed this brief and appendix with the Court by sending, this 12th day of April, 2010, via United Parcel Service, the original plus 15 copies and by uploading an electronic version of the brief and appendix via this Court's Case Management/Electronic Case Filing System (CM/ECF). I also certify that I have served two copies of the brief and appendix, this 12th day of April, 2010, by first-class mail, postage pre-paid, and one electronic version of the brief and appendix 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 parties agreed to have the case heard to judgment by a magistrate judge. App., at A-3 (R.91, at 1). Record 91, the District Court's Memorandum Opinion and Order Granting in Part and Denying in Part AutoZone's Motion for Summary Judgment, is reprinted in the Appendix ("App.") bound with this brief; as is, Record 161, the District Court's Memorandum Opinion and Order Denying EEOC's Motion to Alter Judgment and For a Partial New Trial, see App., at A-35 to A-43. Fed. R. Civ. P. 30(b)(6) authorizes the witness to testify not only to matters within her personal knowledge but also to "matters known or reasonably available to the organization." <3> A district manager at AutoZone has responsibility for several stores in a given area and acts as the store manager's supervisor. R.65-16, at 8, 10 (Smith Dep. 8:2-:14, 10:1-:5); R.65- 19, at 13 (Thompson Dep. 13:8-:11). <4> Indeed, from 1996 on, Sheperd steadily sought and required additional treatment for his condition. In May 1997, Sheperd was suffering from a flare-up and his doctor at the time concluded that Sheperd had had prolonged swelling of the muscles of his back, resulting in severe tenderness and causing incapacitating headaches that could last up to 36 hours. R.65-10, at 53 (J. Sheperd Dep. Ex. 4, at 2). In July and August 1997, Sheperd continued to have pain, and his doctor treated him with trigger point injections. Id. at 53 (J. Sheperd Dep. Ex. 4, at 2). The efficacy of the trigger point injections varies. It may relieve the pain and allow the patient to get by "three months, six months at a time," but it may not. R.65- 27, at 40 (Katchen Dep. 40:12-:18). More pain and more injections followed in December 1997. R.65-10, at 53 (J. Sheperd Dep. Ex. 4, at 2). In January 1998, he began seeing Dr. Marc Katchen, who notes that by that time, Sheperd already had been treated with a combination of pressure point injections, a TENS (Trancutaneous Electrical Nerve Stimulation) unit, which sends electrical current through the skin to control pain, physical therapy, and various muscle relaxants, analgesics, and pain medication. R.65-27, at 6-7 (Katchen Dep. 6:6-7:17, 7:11-:17). In March, June, and July 1998, his doctors reported persistent soft tissue symptoms and recommended continued trigger point injections. Id. at 15 (Katchen Dep. 15:11-:19). In April 1999, the doctor again examined him, again diagnosed him with chronic myofascial pain syndrome and fibromyalgic-type pain, noted that Sheperd was suffering from headaches, and concluded that Sheperd's condition was ongoing chronic. Id., at 16-17 (Katchen Dep. 16:6-:23, 17:20-18:6). Myofascial pain syndrome (MPS) is a condition characterized by chronic and, in some cases, severe pain. As Dr. Katchen testified, patients suffering from MPS can be without pain when the muscles are resting, but when activated, the muscles are painful. Id. at 13, 17 (Katchen Dep. 13:6- :17, 17:23-:18:6). In October 1999, a neurologist examined Sheperd, finding persistent muscle spasms of the upper back and opined that this would be a chronic problem, a view that he reconfirmed in 2000. R.65-10, at 53 (J. Sheperd Dep. Ex. 4, at 2). In 2001, Sheperd's then-physician noted that he had suffered from his back condition "for a long period of time and occasionally the condition has been reaggravated." R.65-18, at 1 (Smith Dep. Ex.2). And in July 2002, his treating physician noted that Sheperd was getting trigger point injections for the recurring back and neck spasms "that also cause[d] him to have headaches" and that he was taking Skelaxin, a muscle relaxant, and that he had been on medications "for some time." R.65-10, at 51 (J. Sheperd Dep. Ex. 3); R.65-18, at 2 (Smith Dep. Ex.3); R.65-28, at 49 (Katchen Dep. Ex.3). By July 2002, nine months before the claims in this case accrued, Sheperd already had been suffering from this condition for nearly six years, and as his personal physician Dr. Katchen noted, "several physicians" had diagnosed his back and neck condition as "permanent." R.65-10, at 51 (J. Sheperd Dep. Ex. 3); R.65-18, at 2 (Smith Dep. Ex.3); R.65-28, at 49 (Katchen Dep. Ex.3). In August 2002, his back cramped so badly it caused Sheperd to vomit. R.65-27, at 39 (Katchen Dep. 39:19-:23). And, in April 2003, his treating physician again noted that his condition was "permanent" and that his back condition had worsened over time "due to previous reaggravating injuries," creating an even more serious condition. R.65-28, at 50 (Katchen Dep. Ex. 3). As Dr. Katchen testified, he "didn't believe" Sheperd's back impairment would ever go away. R.65-27, at 54 (Katchen Dep. 54:20). <5> Sheperd provided AutoZone ample written documentation and notification of his impairments throughout 2002 and 2003-many of which were produced at the request of Smith, Thompson, or both. R.65-7, at 31-38 (J. Sheperd Dep. 91:7-98:12). Sheperd provided AutoZone with the Illinois Industrial Commission's workers compensation decision, dated March 25, 2002, that described the impairment, chronicled the treatments he had received over the years, and stated that "if he does not engage in upper extremity activities such as mopping, overhead lifting or other activities that would aggravated the trapezius muscle or rhomboid muscle then he should do well and not require any medical care." R.65-10, at 52- 55 (J. Sheperd Dep. Ex. 4). When informed that that was deficient, Sheperd gave Thompson an AutoZone "Medical Evaluation Form," which was dated by his doctor on July 3, 2002, that stated that Sheperd was not to be twisting his upper body "at all." R.65-7, at 36-42 (J. Sheperd Dep. 96:8-102:23); R.65-10, at 51 (Sheperd Dep. Ex. 3); R.65-18, at 2 (Smith Dep. Ex.3); R.65-21, at 12-13 (Thompson Dep. 132:18-33:14); R.65-23, at 54 (Thompson Dep. Ex. 21); R.65-28, at 49 (Katchen Dep. Ex. 3). Indeed, Thompson, after receiving the form, faxed it to the AutoZone Regional HR Manager, and Smith, with the notation, "We Can Not Work Limitations [sic]." R.65-21, at 12-13 (Thompson Dep. 132:18-33:14); R.65-23, at 54 (Thompson Dep. Ex. 21). According to Sheperd, Smith contacted him after receiving the form and told him that the form was not "specific" enough because it did not specifically state what duties he could not do, thus his disability would not be accommodated. R.65-7, at 44 (J. Sheperd Dep. 104:1-:22). In response to this, Sheperd gave his store manager yet another form filled out by his doctor, this one dated April 9, 2003. R.65-21, at 15-16 (Thompson Dep. 135:20-36:6); R.65-18, at 3 (Smith Dep. Ex. 4); R.65-23, at 30 (Thompson Dep. Ex. 7). The April 9, 2003 form states: "Due to previous re-aggravating injuries caused by mopping which appears to have created an even more serious condition this and similar activities as operating a floor buffer should be avoided totally." R.65-18, at 3 (Smith Dep. Ex. 4); R.65-23, at 30 (Thompson Dep. Ex. 7). And, in June 2003, Sheperd called AutoZone Corporate headquarters and left a voicemail complaining that Thompson was making him violate his medical restrictions. R.65-10, at 87 (J. Sheperd Dep. Ex. 20 (notes of June 7, 2003 voicemail)). <6> Throughout the relevant time period, Sheperd requested only to be accommodated with respect to mopping and believed that he could do every other task of the job, with perhaps the exception of lifting heavy objects from the floor to his waist, which was not routine in the job. R.65-8, at 36 (J. Sheperd Dep. 156:1-:21); R.65-9, at 16-18, 22 (J. Sheperd. Dep. 196:4-98:16, 202:12-:14). Wilmot testified that he could not think of any other tasks, besides the mopping and buffing and occasional lifting, that Sheperd could not do. R.65-13, at 57 (Wilmot Dep. 117:8-:17). In any event, the lifting did not aggravate Sheperd's back impairment because, as he put it, he "made [his] own accommodation" by propping up the merchandise and sliding it on a cart. R.65-6, at 60 (J. Sheperd Dep. 60:13-:18). Repetitive heavy lifting he could not do, R.65-8, at 47 (J. Sheperd Dep. 167:10-:11), but the job never demanded that. From Sheperd's perspective, other than when mopping, no repetitive twisting or rotating of the torso was required to perform the job. R.65-9, at 23 (J. Sheperd Dep. 203:2-:10). <7> Mrs. Sheperd testified that she believed that even when she was not assisting Sheperd with personal grooming, it is likely that Sheperd performed those personal care tasks in significant pain and did not disclose to her the full extent of his limitations. R.65-11, at 29 (S. Sheperd Dep. 29:8-:21). In a different context, she characterized her husband as "too proud." Id. at 15 (S. Sheperd Dep. 15:11). <8> Congress made significant changes to the ADA which took effect on January 1, 2009; that is, after this case was filed. See ADA Amendments Act of 2008 ("ADAA"), Pub. L. No. 110- 325, § 8, 122 Stat. 3553, 3559 (2008). This Court has concluded that "Congress did not express its intent for these changes to apply retroactively, and so we look to the law in place prior to the amendments." Fredricksen v. United Parcel Serv,, Co., 581 F.3d 516, 521 (7th Cir. 2009). All short citations to the United States Code are therefore to the pre-amended ADA, unless otherwise noted. <9> The EEOC also argued to the district court that Sheperd's back impairment substantially limited him in the major life activity of reproduction, but does not pursue that argument on appeal. <10> Likewise, the ADAA makes explicit that "caring for oneself" is a major life activity. 42 U.S.C. § 12101(2)(A) (Supp. II 2008). <11> "The term 'duration' . . . refers to the length of time an impairment persists." 29 C.F.R. pt. 1630, app. § 1630.2(j). <12> The district court attempted to distinguish Vande Zande and Haschmann, reasoning that "a progressive disease such as AIDS [citing Vande Zande] or lupus [citing Haschmann] is an impairment of a different type than a soft tissue neck or back injury, which cannot be diagnosed in the absence of flare ups." App., at A-38 (R.166, at 4). The court's factual distinction is unavailing because "[a mere] difference in the facts does not alter the applicable principle." NLRB v. Indiana Desk Co., 149 F.2d 987, 992 (7th Cir. 1945). Nothing in Vande Zande suggests that the disability analysis turns on whether Ms. Vande Zande's paralysis was a "progressive disease"; this Court instead was concerned only with whether the "intermittent manifestation" was "disabling," that is, whether it was substantially limiting. See 44 F.3d at 544. In any event, the district court misunderstood Vande Zande. It was not an AIDS case; as the Court made clear, "Lori Vande Zande, aged 35, is paralyzed from the waist down as a result of a tumor of the spinal cord." Id. at 543. Likewise, the district court misread Haschmann; nothing in that opinion suggests that the disability determination turned on whether the plaintiff's lupus was a "progressive disease." As in Vande Zande, the Haschmann Court only was concerned with whether the "episodic manifestations characteristic of lupus . . . which lie dormant and flare from time to time" were "disabling." 151 F.3d at 599-600. The court also attempted to distinguish Sears-this time on the ground that in Sears the employee's episodic manifestations were predictable, see App., at A-38 (R.166, at 4), whereas in Sheperd's case his manifestations were not predictable. First, as a factual matter, Sheperd's flare-ups were somewhat predictable; they occurred when he mopped and performed other activities that required twisting and turning of the torso or lifting from the ground. Second, to the extent that Sheperd could not predict flare-ups-mopping and twisting and turning would not always lead to a flare-up-that lack of predictability makes his impairment more limiting, not less. See Nawrot, 277 F.3d at 905 (noting that the plaintiff's diabetes is substantially limiting in part because "[h]e suffers from unpredictable hypoglycemic episodes"); Maziarka, 245 F.3d at 680 (disabling aspect, even though it "flares up only a few days per month on average," was substantially limiting in part because it was "unpredictable"). One can prepare for a predictable disabling manifestation, but an unpredictable manifestation hangs over a person and limits his ability to perform major life activities with no notice and no time to prepare. See Taylor, 184 F.3d at 309 (noting that "repeated flare-ups of poor health can . . . wear[] down a person's resolve and continually break[] apart longer-term projects"). <13> By way of contrast, "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." 29 C.F.R. pt. 1630, app. § 1630.2(j). Examples of such temporary, non-disabling impairments include: "broken limbs, sprained joints, concussions, appendicitis, and influenza." Id.; see also Brunker, 583 F.3d at 1008 ("Examples of 'intermittent' impairments, which are not disabilities, include a broken leg, appendicitis, or isolated bouts of depression."); Vande Zande, 44 F.3d at 544 ("Intermittent, episodic impairments are not disabilities, the standard example being a broken leg."). Here, the underlying impairment, the damaged muscle tissue in Sheperd's back, is not temporary, intermittent, or episodic, and will not heal; it is permanent. <14> The EEOC's interpretation that chronic, episodic conditions can be substantially limiting is "bolstered by the fact that when Congress amended the ADA [in 2008], it added to the statute a definition that is quite similar to the EEOC's" interpretation. See Winsley v. Cook County, 563 F.3d 598, 604 n.2 (7th Cir. 2009). The new ADA provides that "[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). <15> We note that AutoZone did not contest that the EEOC raised triable issues of fact with regard to whether it was aware of the disability and whether it had failed to reasonably accommodate Sheperd. Nor did AutoZone argue that summary judgment should be granted because the EEOC failed to show that Sheperd had suffered an adverse employment action; the district court raised that issue sua sponte. <16> AutoZone has conceded that the EEOC did not have to provide proof of an adverse employment action to survive summary judgment on the accommodation claim. R.145, at 13-15.