Page

STATEMENT OF INTEREST 1

STATEMENT OF THE ISSUE 2

STATEMENT OF THE CASE 2

A. Statement of the Facts2

B. District Court’s Decision6

ARGUMENT9

The district court applied the wrong legal standards when it ruled,

as a matter of law, that Baker did not have a disability within the

meaning of the ADA. 9

A. Baker’s regarded-as coverage claim13

B. Actual disability and record-of disability20

CONCLUSION26

CERTIFICATE OF COMPLIANCE27

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases page

Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016) 14, 19

Alcazar v. Corp. of the Catholic Archbishop of Seattle,

627 F.3d 1288 (9th Cir. 2010) (en banc) 25

Auer v. Robbins, 519 U.S. 452 (1997) 10

Bohnert v. Roman Catholic Archbishop of San Francisco,

136 F. Supp. 3d 1094 (N.D. Cal. 2015) 25

Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015) 15, 19

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) 10

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,

132 S. Ct. 694 (2012) 24, 25

Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884 (9th Cir. 2001) 9

Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir. 2015) 9

Mercado v. Puerto Rico, 814 F.3d 581 (1st Cir. 2016) 16, 19

Merritt v. Countrywide Fin. Corp., 759 F.3d 1023 (9th Cir. 2014) 24

Neely v. Benchmark Family Servs., 640 F. App’x 429 (6th Cir. 2016) 15

Cases (cont’d) page

Rohr v. Salt River Proj. Agric. Imp. & Power Dist., 555 F.3d 850

(9th Cir. 2009) 11, 16, 18

Soremekun v. Thrifty Payless, Inc., 509 F.3d 978 (9th Cir. 2007) 25

Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116 (9th Cir. 2007) 24

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) 16

Walton v. U.S. Marshals Serv., 492 F.3d 998 (9th Cir. 2007) 13

Weaving v. City of Hillsboro, 763 F.3d 1106 (9th Cir. 2014) 12

Statutes

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

ADA Amendments Act of 2008 (ADAAA),

Pub. L. No. 110-325, 122 Stat. 3553 (2008) 10

ADAAA §§ 2(a)(3)-(8) & (b)(1)-(6) (42 U.S.C. § 12101 note) 10, 11

ADAAA § 2(b)(1) 11

ADAAA § 2(b)(3) 16

ADAAA § 2(b)(4) 21

ADAAA § 2(b)(5) 12

ADAAA § 2(b)(6) 12

Statutes (cont’d) page

42 U.S.C. § 12102(1) 7, 18

42 U.S.C. § 12102(1)(A), (B), & (C) 9, 10

42 U.S.C. § 12102(1)(B) 22

42 U.S.C. § 12102(1)(C) 13, 14

42 U.S.C. § 12102(2)(B) 22

42 U.S.C. § 12102(3)(A) 7, 14, 15, 18, 19

42 U.S.C. § 12102(3)(B) 19

42 U.S.C. § 12102(4)(A) 11, 16

42 U.S.C. §§ 12102(4)(B) & (C) 21

42 U.S.C. § 12112(a) 1, 9

42 U.S.C. § 1211610

Regulations

29 C.F.R. § 1630.2(g)(2), (3) 20

29 C.F.R. § 1630.2(h)(1) 10

29 C.F.R. §§ 1630.2(i)(1)(i) & (ii) 22

29 C.F.R. § 1630.2(j)(1)(ii) 12, 18, 21

Regulations (cont’d) page

29 C.F.R. § 1630.2(j)(2) 14

29 C.F.R. § 1630.2(k)(1) 23

29 C.F.R. § 1630.15(f) 19

29 C.F.R. pt. 1630, app., § 1630.2(k) 23

29 C.F.R. pt. 1630, app. § 1630.2(l) 19

Court Rules

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

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (EEOC or Commission) with interpreting, administering, and enforcing federal laws that prohibit employment discrimination, including the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. The ADA prohibits, among other things, workplace discrimination on the basis of disability. 42 U.S.C. § 12112(a). This appeal raises an important question: whether the district court applied the wrong legal standards when it analyzed whether the plaintiff had a disability within the meaning of the ADA, as amended by the ADA Amendments Act of 2008 (ADAAA). The district court acknowledged the 2008 amendments, but then ignored or misconstrued the new standards in analyzing the plaintiff’s claim. If this decision were affirmed, it would adversely affect the EEOC’s enforcement of the ADA as well as the ability of private parties to enforce their rights under the statute. Given the importance of clarifying the proper legal standards for coverage under the ADA, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Did the district court apply the wrong legal standards when it granted summary judgment to the defendant on the ground that the plaintiff did not satisfy any of the ADA’s definitions of “disability”?

STATEMENT OF THE CASE

A. Statement of the Facts

The Roman Catholic Bishop of San Diego (RCBSD) employed plaintiff Michelle Baker as a high school math teacher at the Cathedral Catholic High School (Cathedral). Baker’s Excerpts of Record, Volume II (II-ER.) 63-100; III-ER.253, 256-59. The Diocese employed the school’s teachers by means of one-year contracts. III-ER.268.

On Thursday, August 23, 2012 (shortly after the 2012-13 school year began), Baker’s shoe became lodged in a crack in a stairwell in the school building, causing her to fall down the stairs and strike the side of her head on a concrete stair. III-ER.294-97. After sitting for approximately ten minutes unable to move, Baker walked to her car, telephoned the school nurse to inform her of the fall, and drove herself home. III-ER.297-98. The school’s principal, Michael Deely, called her that evening and urged her to see a doctor. III-ER.299-300; IV-ER.661. She went to the emergency room, where she was diagnosed with a concussion and ordered to stay home from work. III-ER.299-302. Baker and Deely exchanged emails the following week in which Deely inquired how Baker was doing and she informed him that she continued to experience continual headaches and frequent dizziness from the concussion. IV‑ER.610-11, 661. She remained out of work, recuperating, for approximately ten days; on Monday, September 3, she was medically cleared to return to work. III-ER.301-02.

After her return, Baker taught her math classes without any accommodation apart from the approved medical leaves she took for doctor’s appointments and rehabilitation sessions. III-ER.312-13, 315, 318; see, e.g., IV-ER.615-19. Every week to ten days, she saw Principal Deely, and he asked her how she was feeling. III-ER.255, 304. She routinely responded that she continued to experience dizziness and headaches after the fall. III-ER.304-05.

In the months following her concussion, Baker experienced double vision and blurred vision, causing her difficulty with night driving. III‑ER.281-82, 313. She also experienced extensive hearing loss, neck pain, dizziness, and nightmares, as well as memory issues that began after her fall and gradually increased during the ensuing months. III-ER.281, 313. And she attested that, because of the fall, she was unable to exercise for almost a year and a half (until January 2014). III-ER.280.

In early December 2012, approximately three months after Baker’s head injury, Deely emailed her requesting a time to conduct a teacher observation in order to evaluate her performance. II-ER.221; III-ER.315. Deely observed Baker teach on two occasions in January 2013. III‑ER.322-23; IV-ER.623-27. In February, he met with Baker and told her he was not renewing her teaching contract for the next year. III-ER.267, 271, 324. A few weeks thereafter, Baker requested medical leave, which the school granted, and she ceased teaching for defendant on March 29, 2013. III‑ER.264; IV-ER.613. The school placed her on a medical leave of absence through the remainder of the school year and paid her through August 2013. III-ER.271.

Baker sued her employer under the ADA. IV-ER.684-717. RCBSD moved for summary judgment, relying entirely on pre-ADAAA legal precedent. RCBSD argued that Baker did not have a disability as defined by the ADA. IV-ER.663-64. According to the defendant, Baker’s ability to work without restriction after she returned to work in early September demonstrated that she was not actually substantially limited in any major life activity and provided evidentiary support for Deely’s attestation that he did not regard her as such. District Court ECF No. 51-1 at 19-22. RCBSD also argued that Deely’s decision not to renew Baker’s teaching contract was because of poor teaching skills and not because of any medical issues arising from her fall. Id. at 22. Finally, RCBSD argued that, as a math teacher at a Catholic school, Baker served as a minister of the church and, thus, the ministerial exception shielded Cathedral from liability under the ADA. Id. at 26-28.

B. District Court’s Decision [2]

The district court concluded that Baker “was initially disabled for purposes of the ADA” because her “concussion and related symptoms” led to her “inability to carry out a major life activity, working, for a period of at least ten days.” I-ER.8, 10. The court ruled, however, that this actual disability ended when Baker returned to work in early September because the evidence failed to establish that Baker’s medical condition (i.e., the “intermittent headaches and vision problems” she continued to experience after she returned to work) “prevented her from engaging in major life activities.” Id. at 9-10 (emphasis added); see also id. at 10 (Baker failed to “quantify the degree or severity” of her night vision problems and failed to identify how that impairment “prevented her from engaging in a major life activity”). In a footnote, the court stated that it did not consider any of Baker’s medical records that she had not previously provided to her employer. Id. at 9 n.1. The court stated that “[t]hese records are irrelevant to prove that [her employer] was aware of [Baker’s] medical condition or symptoms.” Id. The court acknowledged that the records were relevant to Baker’s medical condition, id. at 9-10 n.1, but apparently did not take them into account in determining whether Baker’s evidence sufficed to establish she had an actual disability after September 3.

The court also rejected Baker’s claim that the defendant regarded her as disabled under 42 U.S.C. § 12102(1) when it fired her. The court stated that for Baker to demonstrate coverage under this ADA provision she “must show the [defendant] perceived her as having a ‘physical or mental impairment.’” I-ER.10 (citing 42 U.S.C. § 12102(3)(A)). The court acknowledged that Baker said she informed Deely at some point in 2013 that she suffered from double vision, and that following her return to work after her fall, she spoke with Deely every week or so and, when he asked how she was doing, she “always told him she suffered from headaches and dizziness.” Id. The court stated, however, that Baker “provided no evidence that she informed anyone as to the frequency, severity, duration, or any other characteristic of the intermittent headache issues.” Id.

The court further noted that after September 3, Baker did not “inform[] any employee of [the defendant] that she was disabled . . . or that any dizziness or headaches prevented her from engaging in any major life activity.” I-ER.10-11 (emphasis added). The court stated: “There is simply no evidence that [the defendant], or even [Baker’s] treating physicians believed, or even considered, that [Baker] was disabled and could not engage in major life activities.” Id. at 11. The court noted Deely’s testimony that “he never observed ‘anything about [Baker] to believe that she was in any way disabled or limited in her ability to do her job or to function generally’” and that Baker’s “treating physicians did not limit her availability to work.” Id. The court then stated summarily, without further explanation, that Baker “fails to submit any evidence that she had a record of a disability or impairment.” Id.

Finally, the court ruled that Baker failed to establish a factual dispute over whether she suffered an adverse employment action because of a disability. I-ER.12-16. The court did not address the defendant’s alternative argument that when Baker was teaching high school math she served as a minister of the church and, therefore, the ministerial exception barred Baker from bringing an ADA claim against her employer.

ARGUMENT

The district court applied the wrong legal standards when it ruled, as a matter of law, that Baker did not have a disability within the meaning of the ADA.

The ADA forbids employment discrimination against a “qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). To prevail on her claim of disability-based discrimination, Baker had to establish that when her employer failed to renew her teaching contract in February 2013, she had a disability within the meaning of the ADA. See Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015) (citing Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001)).

The ADA provides three alternative ways for an individual to establish a disability. 42 U.S.C. § 12102(1)(A), (B), & (C). In concluding that Baker was not disabled under any of these provisions, the district court misstated or misapplied the standards for all three.

The term “disability” in the ADA means, with respect to an individual:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

42 U.S.C. § 12102(1)(A), (B), & (C). The ADA does not define “impairment.” Congress, however, authorized the EEOC to issue regulations to carry out the provisions of the Act, and those regulations define physical impairment as “[a]ny physiological disorder or condition … affecting one or more body systems,” including “neurological” and “special sense organs.” 29 C.F.R. § 1630.2(h)(1).[3]

Congress significantly broadened the meaning of “disability” when it enacted the ADA Amendments Act of 2008 (ADAAA). Pub. L. No. 110-325, 122 Stat. 3553 (2008) (effective January 1, 2009), see 42 U.S.C. §§ 12101 note, 12102(4)(A). Congress explicitly rejected the narrow interpretation of “disability” that had developed in the Supreme Court and the lower courts prior to 2008 in favor of a more expansive construction of the Act’s three-part definition of disability. ADAAA §§ 2(a)(3)-(8) & (b)(1)-(6) (42 U.S.C. § 12101 note). As this Court observed shortly after the amendments went into effect, Congress enacted the ADAAA “[t]o restore the intent and protections” of the ADA and to reject explicitly those Supreme Court decisions that had defined “disability” more narrowly than the ADA originally intended. Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 853, 861 (9th Cir. 2009) (citation and internal quotations omitted); see ADAAA § 2(b)(1) (ADAAA enacted to carry out the ADA’s original objectives “by reinstating a broad scope of protection … under the ADA”).

The ADA now provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. § 12102(4)(A); see Rohr, 555 F.3d at 861 (same). The ADAAA’s findings and purposes explain that Congress enacted the amendments “to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” ADAAA § 2(b)(5). Furthermore, Congress voiced its expectation that the EEOC would revise the portion of the EEOC’s regulations defining the term “substantially limits” to conform to the broader coverage Congress enacted in the ADAAA. ADAAA § 2(b)(6).

The district court correctly noted, at the outset of its analysis, this congressional expansion of the ADA’s definition of disability. I-ER.7-8 (quoting Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir. 2014)). Among other things, the district court recited the EEOC’s post-2008 regulations stating that “[a]n impairment need not prevent, or significantly or severely restrict,” someone from performing a major life activity “to be considered substantially limiting” under the ADA. Id. at 8 (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). Thereafter, however, the court misanalyzed each of the ADA’s alternative definitions of disability.

A. Baker’s regarded-as coverage claim

The district court ignored the ADAAA’s dramatic change in the statutory protection afforded individuals whose employers regard them as having a disability. 42 U.S.C. § 12102(1)(C). The court noted the ADAAA’s mandate for broad coverage, but then failed to apply it to Baker’s regarded-as claim. Instead, the district court assessed Baker’s regarded-as evidence based on a pre-ADAAA standard that Congress explicitly rejected in the ADAAA.

Before passage of the ADAAA, plaintiffs who asserted regarded-as coverage were required to demonstrate that their employer perceived them to have an impairment that substantially limited a major life activity. As this Court once explained, “[I]n order to state a ‘regarded as’ claim a plaintiff must establish that the employer believes that the plaintiff has some impairment, and provide evidence that the employer subjectively believes that the plaintiff is substantially limited in a major life activity.” Walton v. U.S. Marshals Serv., 492 F.3d 998, 1006 (9th Cir. 2007).

Congress eliminated this requirement under the ADAAA. The ADA now expressly provides that an individual meets the regarded-as prong “if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added); see also 29 C.F.R. § 1630.2(j)(2) (“Whether an individual’s impairment ‘substantially limits’ a major life activity is not relevant to coverage under … the ‘regarded as’ prong ….”).

This Court has not yet had occasion to address this particular statutory revision. Other circuits, however, have recognized the impact of this important change. The Tenth Circuit noted in Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016), for example, that after passage of the ADAAA, “an impairment under § 12102(1)(C) [the ADA’s regarded-as provision] need not limit or even be perceived as limiting a major life activity.” Id. at 1305. The court explained that “the employer need only regard the employee as being impaired, whether or not the employer also believed that the impairment prevented the employee from being able to perform a major life activity.” Id. at 1305-06. The Fifth Circuit similarly noted that the “‘whether or not’ language” in § 12102(3)(A) “overrules prior authority requiring a plaintiff to show that the employer regarded him or her as being substantially limited in a major life activity.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 230 (5th Cir. 2015) (citation and internal quotation marks omitted). See also Neely v. Benchmark Family Servs., 640 F. App’x 429, 435 (6th Cir. 2016) (“In passing the 2008 Amendments, Congress liberalized the standard, redefining ‘regarded as having an impairment’ only to require that a defendant took a prohibited action based on a perceived impairment, regardless of whether the employer thought the impairment was substantially limiting.”).

Thus, by the ADA’s plain terms, regarded-as coverage is now evaluated based on whether an employer took action against an individual because of (or based on) an actual or perceived impairment. 42 U.S.C. § 12102(3)(A). A defendant’s “view of the magnitude of the effect of the perceived impairment on [a plaintiff’s] daily life activities” no longer matters; an ADA plaintiff “need plead and prove only that the defendants regarded her as having a physical or mental impairment.” Mercado v. Puerto Rico, 814 F.3d 581, 588 (1st Cir. 2016).

Because the 2008 amendments imposed such a major shift in the definition of regarded-as coverage, cases applying pre-ADAAA standards to this question—including Supreme Court decisions—are no longer good law on this point. See, e.g., Findings and Purposes of ADAAA [42 U.S.C. § 12101 note] § 2(b)(3) (ADAAA’s purposes include “reject[ing] the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the [regarded-as] prong of the definition of disability”). Pre-ADAAA decisions are unhelpful not only because the ADAAA altered the statutory standard for regarded-as coverage, but also because the ADAAA expressly mandates that the definition of disability be interpreted broadly to effectuate Congress’s intent for expansive ADA coverage. 42 U.S.C. § 12102(4)(A); see Rohr, 555 F.3d at 861. Decisions applying pre-ADAAA standards to questions of regarded-as coverage necessarily did not apply the ADAAA’s “broad coverage” mandate.

The district court acknowledged that the 2008 amendments required it to construe the ADA’s definition of disability “in favor of broad coverage” and that coverage under the regarded-as prong applies if the employer perceived the individual to have a “physical or mental impairment.” I-ER.7, 10 (citations omitted). Nevertheless, the court proceeded to analyze (and reject) Baker’s claim of regarded-as coverage under the far narrower, pre-ADAAA standards. See id. at 9-11.

The court noted Baker’s evidence that she had informed Cathedral, and Deely in particular, that she continued to experience symptoms from her fall and concussion, including headaches, dizziness, and vision issues—all impairments under the ADA. I-ER.10. The court stated, however, that Baker provided “no evidence that she informed anyone as to the frequency, severity, duration … of [her] intermittent vision and headache issues.” Id. (emphasis added). The court further stated that this failed to satisfy Baker’s evidentiary burden to show that her employer regarded her as disabled under 42 U.S.C. § 12102(1) because she did not show that “any dizziness or headaches prevented her from engaging in any major life activity.” See id. at 10-11 (emphasis added); see also id. at 11 (no evidence that RCBSD believed Baker “could not engage in major life activities” or that Deely believed “she was … limited in her ability to do her job or to function generally”).

Frequency, severity, and/or duration of limitations, as well as outright inability to perform a major life activity, are relevant considerations when an ADA plaintiff seeks to establish an actual disability under the first prong of the ADA’s definition of disability. See Rohr, 555 F.3d at 858-59; 29 C.F.R. § 1630.2(j)(1)(ii) (“An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.”). Those considerations are not the criteria for establishing regarded-as coverage, however, because under 42 U.S.C. § 12102(3)(A) a plaintiff no longer needs to show that her employer believed her impairment was substantially limiting.[4] Mercado, 814 F.3d at 588; Adair, 823 F.3d at 1305-06; Burton, 798 F.3d at 230. The district court’s statement that in the absence of such evidence, Baker “fails to demonstrate that these symptoms were disabling for purposes of the ADA,” I-ER.10, underscores that the court applied an incorrect standard in concluding that no reasonable jury could find defendant regarded Baker as disabled.

The proper question here was whether the evidence would permit a jury to find that Baker’s employer failed to renew her contract “because of an actual or perceived physical or mental impairment” (i.e., the on-going effects of the concussion she received when she fell, which manifested in intermittent headaches, dizziness, and vision issues, among other symptoms) “whether or not [those impairments] limit[ed] or [were] perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added). Because the district court rejected Baker’s regarded-as coverage claim under a standard that Congress expressly disavowed when it enacted the ADAAA, the court erred.

B. Actual disability and record-of disability

On appeal, Baker argues only briefly that she also fell within the ADA’s actual disability provision, Baker Brief at 41 n.3, and does not advance the record-of disability argument she made below. And there is no need for her to do so. When an individual does not require a reasonable accommodation to perform the job—as was true here—the ADA’s regarded-as provision offers full ADA protection; establishing actual or record-of disability adds nothing more. See 29 C.F.R. § 1630.2(g)(2), (3). Nevertheless, to assist this Court should it address the issue, the Commission notes that the district court applied the wrong legal standard to Baker’s actual disability claim and misanalyzed Baker’s record-of disability claim.

As to actual disability, the district court repeatedly—and wrongly—focused on whether Baker’s medical condition prevented her from engaging in major life activities after she returned to work in September. See I-ER.9 (“the evidentiary record fails to establish that Plaintiff’s medical condition prevented her from engaging in major life activities”); id. at 10 (after September 3, 2012, “the symptoms earlier suffered by Plaintiff no longer prevented her from engaging in any major life activity.…”). The ADA does not require such evidence. The ADA regulations explain that “an impairment need not prevent, nor significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii); see also 42 U.S.C. §§ 12102(4)(B) & (C) (explaining proper construction of “substantially limits”); ADAAA § 2(b)(4) (42 U.S.C. § 12101 note) (ADAAA enacted in part to reject court interpretation of “substantially limited” to mean an individual must be prevented or severely restricted from doing activities of central importance to daily life).

Furthermore, the district court’s focus on Baker’s ability to continue performing her job after her head injury suggests the court mistakenly thought that demonstrating an actual disability requires an individual to show some limitation on the major life activity of working. It does not. Major life activities include a variety of daily functions such as seeing, hearing, walking, thinking as well as operations of “a major bodily function” such as “special sense organs” and “neurological, brain.” 42 U.S.C. § 12102(2)(B); 29 C.F.R. §§ 1630.2(i)(1)(i) & (ii).

The district court also misanalyzed Baker’s contention that she is covered under the ADA’s record-of provision, 42 U.S.C. § 12102(1)(B). The summary judgment evidence shows that the school knew Baker sought medical treatment following her fall and that the defendant knew this was the reason Baker missed work. The court acknowledged that Baker’s summary judgment opposition included medical records concerning her concussion. I-ER.9-10 n.1. And the court concluded that for the ten days Baker could not work due to her concussion, she had an actual disability under the ADA. Id. at 8. Yet the district court concluded that Baker “fail[ed] to submit any evidence that she had a record of a disability or impairment.” Id. at 11. The court misconstrued what the ADA requires to demonstrate a record of disability under § 12102(1)(B).

If—as the court concluded—Baker had an actual disability between August 23 and September 3 based on her concussion, and if—as the record indicates—she received immediate medical treatment and periodic medical examinations, neurological tests, and rehabilitative treatment thereafter, then a record of that disability exists. As the EEOC’s regulations explain, “An individual has a record of a disability if the individual has a history of … a mental or physical impairment that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k)(1).

An employer need not have viewed the particular medical records in question before making its decision, as the district court apparently believed. See I-ER.9-10 n.1. Rather, it is sufficient that the employer knew the employee had the medical condition that the medical records document. 29 C.F.R. pt. 1630, app., § 1630.2(k) (record-of coverage satisfied by evidence “that an individual has had a substantially limiting impairment”). And an employer need not “specifically know about the relevant record.” Id. While establishing that the employer acted based on an employee’s record of a disability will require proof that the employer was aware of the medical condition, the preliminary coverage question has no such requirement. Id. (“evidence that an individual has a past history of an impairment that substantially limited a major life activity is all that is necessary to establish coverage” under the record-of prong). To the extent the district court refused to consider any medical records that Baker did not provide to the school at the time they were created, the court erred.[5]

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s grant of summary judgment and remand this matter for further proceedings under the correct legal standards.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

MARGO PAVE

Assistant General Counsel

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 4,843 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4791

Dated: December 29, 2016

[1] The Commission takes no position on any other issue in this appeal, except to urge this Court not to address defendant’s possible argument that Baker’s teaching position fell within the ministerial exception to anti-discrimination statutes. See infra at pp. 24-25 n.5.

[2] The Commission summarizes only the portions of the district court’s decision relevant to the issues the Commission addresses in this brief.

[3] Because Congress expressly delegated rulemaking authority to the EEOC under Title I of the ADA, 42 U.S.C. § 12116, the EEOC’s regulations and its guidance regarding these regulations are entitled to deference. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984); Auer v. Robbins, 519 U.S. 452, 462-63 (1997).

[4] An impairment can be so minor and short-lived that it falls outside the regarded-as prong. 42 U.S.C. § 12102(3)(B) (regarded-as coverage does not encompass “impairments that are transitory and minor”). This provision is a narrow exception intended by Congress to encompass such “common ailments” as a cold or the flu. See 29 C.F.R. pt. 1630, app. § 1630.2(l); see also 29 C.F.R. § 1630.15(f) (explaining affirmative defense). The evidence here does not indicate that Baker’s impairments fall within this narrow exception, and the defendant did not argue as much below.

[5] The district court did not reach the defendant’s alternative argument that regardless of the merits of Baker’s ADA claims, the defendant is shielded from liability by the ministerial exception. In the event the defendant raises this affirmative defense on appeal as an alternative basis for affirmance, we urge this Court to exercise its discretion to decline to address this fact-intensive question in the first instance. See, e.g., Merritt v. Countrywide Fin. Corp., 759 F.3d 1023, 1033-41 (9th Cir. 2014) (concluding that “prudence counsels against addressing” two first impression and/or fact-intensive questions, remanding them to the district court to decide in first instance); Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1128 n.4 (9th Cir. 2007) (declining to resolve an issue that the district court had not addressed, and noting that generally the court “do[es] not consider an issue not passed upon below”).

This restraint is especially appropriate here because the ministerial exception – which is based on the principle that the First Amendment bars the government from interfering with the decision of a religious group to fire one of its ministers – requires a fact-intensive examination of a wide variety of factors. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 702, 707-09 (2012) (considering, among other things, the employee’s job title, training, and job duties; that the church had “commissioned” her as a minister and that she characterized herself as a minister; and recognizing the relevance of, but discounting exclusive reliance on, the relative amount of time employee spent on religious versus non-religious job duties); Alcazar v. Corp. of the Catholic Archbishop of Seattle, 627 F.3d 1288, 1291-92 (9th Cir. 2010) (en banc) (examining a variety of factors in ruling seminarian fell within ministerial exception). This type of fact-intensive inquiry is best left to a district court in the first instance.

Furthermore, because the ministerial exception is an affirmative defense, Hosanna-Tabor, 132 S. Ct. at 709 n.4, the defendant would not be entitled to prevail on this issue on summary judgment unless the evidence, viewed in the light most favorable to Baker, is so one-sided in the defendant’s favor that any rational jury could only find for RCBSD. See, e.g., Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.”). That may not be the case here, where Baker’s job title, academic training, and job duties as a math teacher appear to have been secular in nature, in contrast to the considerations that led the Supreme Court in Hosanna-Tabor and this Court in Alcazar to conclude that the exception applied on those facts. See, e.g., Alcazar, 627 F.3d at 1291-92 (noting “ministerial exception may not apply to a seminarian who obtains employment with a church outside the scope of his seminary training”); Bohnert v. Roman Catholic Archbishop of San Francisco, 136 F. Supp. 3d 1094, 1113-15 (N.D. Cal. 2015) (denying summary judgment to Archdiocese because wholly non-religious nature of high school biology teacher’s job duties “support Bohnert’s argument that she was not a minister for the purposes of her Title VII claim” and Archdiocese had not proven it was entitled to the affirmative defense as a matter of law).