TABLE OF AUTHORITIES.......................................................................... iii

STATEMENT OF INTEREST........................................................................ 1

STATEMENT OF THE ISSUE....................................................................... 2

STATEMENT OF THE CASE....................................................................... 2

A. Statement of the Facts........................................................................... 2

B. District Court’s Decision.................................................................... 15

ARGUMENT................................................................................................ 21

The District Court Erred in Granting Summary Judgment to Remington on Cady’s ADA Accommodation Claim Based on Its Finding that Remington Had Insufficient Notice of Cady’s Disability or Need for an Accommodation............... 21

A. The district court applied the wrong legal standard to Cady’s failure to accommodate claim............................................................................ 21

B. The district court erred in holding that no reasonable jury could find that Cady gave Remington sufficient notice of his need for an accommodation to invoke the ADA’s interactive process.................................................................. 24

1. Timing of Notice............................................................................ 25

2. Content of Notice........................................................................... 28

C. A reasonable jury could find that Cady proposed a reasonable accommodation within the meaning of the ADA, but
Remington refused to engage in the interactive process required by the statute. 32

CONCLUSION............................................................................................. 38

CERTIFICATE OF COMPLIANCE............................................................ 39

CERTIFICATE OF SERVICE

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS.. A-1

TABLE OF AUTHORITIES

Cases

Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) (en banc), vacated on other grounds sub nom. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002)...... 29

Brown v. Humana Ins. Co., 942 F. Supp. 2d 723 (W.D. Ky. 2013).............. 16

Bultemeyer v. Ft. Wayne Cmty. Sch., 100 F.3d 1281 (7th Cir. 1996)............ 22

Burns v. City of Columbus, Dep’t of Pub. Safety, 91 F.3d 836
(6th Cir. 1996)........................................................................................... 17

Crandall v. Paralyzed Veterans of Am., 146 F.3d 894 (D.C. Cir. 1998)......... 19

EEOC v. C.R. England, Inc., 644 F.3d 1028 (10th Cir. 2011)...................... 28

EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005)...................... 31

Hammon v. DHL Airways, Inc., 165 F.3d 441 (6th Cir. 1999)..................... 17

Keith v. Cty. of Oakland, 703 F.3d 918 (6th Cir. 2013)........................... 30, 34

Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862 (6th Cir. 2007).......... passim

Nadler v. Harvey, No. 06-12692, 2007 WL 2404705 (11th Cir. 2007)......... 22

Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014)............................ passim

Smith v. Henderson, 376 F.3d 529 (6th Cir. 2004)........................................ 28

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999)..................... 29

Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080 (9th Cir. 2002)...................... 29

Statutes

Title I of the Americans With Disabilities Act of 1990................................ 1

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

42 U.S.C. § 12111(8)...................................................................................... 35

42 U.S.C. § 12112(b)(5)(a)............................................................................. 24

42 U.S.C. § 12112(d)..................................................................................... 25

42 U.S.C. § 12117............................................................................................ 1

ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) 30

Regulations

29 C.F.R. § 1630 app., § 1630.9.................................................................... 24

29 C.F.R. § 1630.1(c)(4)................................................................................. 30

29 C.F.R. § 1630.2(i)(1)(ii)............................................................................ 30

29 C.F.R. § 1630.2(n)(1)................................................................................ 34

29 C.F.R. § 1630.2(n)(2)................................................................................ 34

29 C.F.R. § 1630.2(n)(3)(iii)-(vii).................................................................. 35

29 C.F.R. § 1630.2(o)(3)................................................................................ 31

Rules

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

Fed. R. App. P. 29(d).................................................................................... 39

Fed. R. App. P. 32(a)(5)................................................................................ 39

Fed. R. App. P. 32(a)(6)................................................................................ 39

Fed. R. App. P. 32(a)(7)(B)........................................................................... 39

Other Authorities

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), at http://www.eeoc.gov/policy/docs/accommodation.html................ passim

EEOC Fact Sheet, The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, at http://www.eeoc.gov/facts/performance-conduct.html................... 26, 27

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission (“EEOC”) is charged with the interpretation and enforcement of Title I of the Americans With Disabilities Act of 1990 (“ADA”). See 42 U.S.C. § 12117. The district court in this case held that the plaintiff, who had informed his employer that he needed a work modification because of back problems related to his history and current symptoms of spinal disease, had not done enough to put the company on notice that he was requesting a reasonable accommodation within the meaning of the ADA. In so ruling, the district court contravened both this Court’s precedent and the EEOC’s guidance on what constitutes a request for a reasonable accommodation.

Because the EEOC has a direct enforcement interest in this question, and because this Court’s ruling will directly affect future enforcement actions by the agency, the EEOC offers its views to the Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Whether the district court erred in granting summary judgment to Remington on Cady’s ADA accommodation claim based on its finding that Remington had insufficient notice of Cady’s disability or need for an accommodation.

STATEMENT OF THE CASE

A. Statement of the Facts

Plaintiff Robert Cady began working for the defendant, Remington Arms, as a staff engineer at its Elizabethtown, Kentucky, facility in early 2012. R.29-3/Cady offer letter/PID-183. Remington’s job description for the staff engineer position gives the following “general summary”: “Conceives, researches, plans, designs, develops, and implements (into Production) new products and systems by performing the following duties.” R.29-3/Position Description/PID-155. It then lists nearly two pages of “principal duties and accountabilities (*essential functions),” including various types of research and data analysis, design responsibilities, direction and coordination of personnel, project management, and preparation of reports. Id. at PID-155-56.

The job description also contains a separate section listing “physical demands” that it terms “representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.” Id. at PID-157. It then states, in relevant part: “While performing the duties of this job, the employee is regularly required to use hands to finger, handle, or feel objects, tools or controls. The employee is regularly required to stand; walk; sit; reach with hands and arms; stoop, kneel, crouch, or crawl; and talk or hear. The employee must occasionally lift and/or move up to 25 pounds.” Id.

Scott Franz, Cady’s supervisor and a VP of engineering services at Remington, testified that most of Cady’s day-to-day job duties were sedentary office work. R.33-1/Franz dep. 61-62/PID 428-29. Otherwise, Franz testified, Cady’s job duties might entail being “involved with the team,” “involved with [firearms] testing,” “travel,” and “visiting the vendors.” Id. Cady himself testified that much of his job involved holding team meetings and making sure that designers and “people on the technical side” worked together; he related that he “spent … a lot of my time trying to integrate and make sure that the information that both sides knew got shared.” R.34-1/Cady dep. 170/PID-616. In addition, he testified, he was responsible for tracking “actionable items” with problems that required resolution, doing weekly and monthly reports, testing validation, meetings with suppliers, and hosting a supplier engineering development symposium. Id. at PID-616-17.

Cady has a history of major spine disease that has required multiple back surgeries. R.29-9/Cole dep. 40-41/PID-310-11; R.29-10/Cady med. records/PID-317-27. As of 2013, his medical records reflected continued moderate to severe spinal stenosis and disc herniation “aggravated by walking, standing for prolonged periods, and bowel movements.” R.29-10/Cady med. records/PID-323. Cady testified that his back symptoms were progressively worsening over the course of 2013, with the pain escalating significantly around May. R.34-1/Cady dep. 160/PID-606.

Cady began a new round of treatment for his spinal issues in June-July 2013 with a neurologist, Dr. John Cole.[2] R.29-10/Cady med. records/PID-319; R.34-1/Cady dep. 33/PID-479. Cady testified that on July 11, he informed Laura Norwood, the HR manager at the Elizabethtown facility, about his back issues, in connection with a conversation about a scheduled appointment with Dr. Cole the next day. R.34-1/Cady dep. 157-58, 161-62, 187/PID-603-04, 607-08, 633.

Cady then saw Dr. Cole on July 12, and Dr. Cole prescribed oral medications to manage Cady’s back pain and inflammation. R.29-9/Cole dep. 62/PID-313; R.34-1/Cady dep. 34-35, 116/PID-480-81, 562. Cady testified that he did not obtain any work restrictions from Dr. Cole because, “based on what I understood my job activities [to be], I didn’t feel that I needed … restrictions … at that time.” R.34-1/Cady dep. 35, 81/PID-481, 527. According to Cady, at his appointment Dr. Cole “asked me if I needed to have any restrictions put together,” but when Cady “explained to him what my job was”—i.e., “a desk job that allowed me typically to get up and move around when I needed to … [and] get the relief that I needed”—Dr. Cole responded, “[w]ell, you probably won’t need it then.” Id. at PID-573-74.

On Monday, July 15, 2013, Cady traveled to St. Cloud, Minnesota, on a work trip to Remington’s DPMS manufacturing facility. R.33-1/Franz dep. 22-24/PID-419; R.34-1/Cady dep. 267/PID-713. Franz and Cady both testified that Cady was sent to DPMS to help prepare for the launch of a new semi-automatic AR rifle called the Gen 2. R.33-1/Franz dep. 20-23/PID-418-19; R.34-1/Cady dep. 272-73/PID-718-19. Cady testified that before leaving for Minnesota he spoke with Tony Moore, Chief Product Development & Supply Chain Officer, and Jeff Stone, a staff engineer on the Gen 2 project, about the purpose of the trip. R.34-1/Cady dep. 80-81/PID-526-27. According to Cady, Moore told him that quality concerns were the primary focus and that he would need to teach Bob Michaels, the DPMS quality manager, how to address them. Id. at PID-526. Cady testified that Moore told him, “‘Robert, you need to … teach the village how to fish,’” and that he would be expected to “help Bob Michaels organize and structure and … collect the data,” inspect parts, and run capability studies on them. Id. at PID-526-27.

Before leaving for Minnesota, Cady sent Todd Mittelstaedt, the DPMS plant manager, Franz, Stone, and several other Remington employees an email summarizing his agenda for the trip. R.35-1/Cady email 7-12-13/PID-785. The email stated that Cady had “been given specific direction to put focus on Production Readiness and Quality,” and that “[m]y primary focus this coming week will be to make sure we have all quality aspects in alignment and progressing at a rate that assures successful … build.” Id. He further explained that “[i]n parallel with this we will need to make sure we agree with the line balancing plan and work through open details … [then] we will have a workshop event on the Creform.” Id. (Creform is a brand of modular workstations and work cells, consisting of an interlocking system of pipes, joints, and wheels, that can be customized to suit many different applications. R.29-16/Mittelstaedt decl./PID-357; R.34-1/Cady dep. 256/PID-702.)

Cady reported to the DPMS facility at 7:30 a.m. on Tuesday, July 16. R.34-1/Cady dep. 267/PID-713. He testified that he set up his materials in a conference room where he was directed, and he and Michaels began discussing the quality issues on the Gen 2 project. Id. at PID-713-14. Cady testified that Mittelstaedt eventually came by and, after meeting with Michaels in his office, told Cady that he would be “work[ing] on Creforms for the next … three days. Do you have a problem with that?” Id. at PID-714-15. According to Cady, he replied that “I don’t necessarily have a problem with … working on the Creforms, but I was told that [one person] would be made available to me that would be dedicated to the project and that there would be others … to help support the activity.” Id. at PID-715. Cady testified that Mittelstaedt responded that he had recently lost eleven employees, “and the 1 guy that was going to work with you went to boot camp,” and asked him again whether he had a problem with working on the Creforms. Id. According to Cady, he told Mittelstaedt that “it’s not what I understood as the scope of the job assignment,” and he (privately) “started to have some concerns about what that entailed, but didn’t want to jump to conclusions ….” Id. at PID-715-16.

Cady testified that Lee Vogel, a DPMS Production Manager, then came and told him, “[w]e’re going to have you go … out back and build Creforms.” Id. at PID-716. At this point, Cady testified, he had not yet said anything to Vogel or Mittelstaedt about his back condition. Id. He testified that he followed Vogel out to the back of the plant, where there was a parking lot with a semi truck full of Creform components and a saw for cutting them into pieces. Id. at PID-719. Initially, Cady testified, Vogel was helping him cut the components and attempt to assemble them—Cady described the process as “winging it.” Id. At that point, he “had concerns about where the activity was going to go with my back, but I wasn’t feeling issues at that moment.” Id. at PID-720.

As the assembly went on, Cady related, he was “cutting some of the tubing, and the tubing was way back in the trailer, and it was buried under stuff, and it was long.” Id. Thus, he explained, while the tubing material itself was “lightweight,” “[i]t was not easy to get to[,] and it required getting in and out of the truck, the semi-trailer, and … that was an issue.” Id. Cady testified that Vogel initially did some of these tasks for him, but “then he disappeared.” Id.

After Vogel left him on his own, Cady testified, he managed “a couple of trips inside in and out of the truck, and I realized that I wasn’t going to be able to do it safely, or … my fear was I was going to wind up in an emergency room that night.” Id. at PID-720-21, 728. He explained that there was no ramp he could use to get in and out of the truck, so each time he needed to get into the truck he had to “grab onto the bar on the side and pallet that was in there to pull myself up.” Id. at PID-721. While getting in and out of the truck was the hardest part for him, Cady explained, there was also nowhere in the area for him to sit down, and the repetitive motions of assembling the workstations also exacerbated his condition. Id. at PID-725-26.

By lunchtime, Cady testified, he called Greg Parker, a Remington manager, to give him an update and explain his situation. Id. at PID-726. Parker corroborated Cady’s testimony, and he testified that he told Cady:

I first told Robert that he needed to be safe. I did not want him to hurt himself in any particular way; and if that was the case, that he needed to … cease and desist doing that …. I asked him to contact Lee, who was kind of the leader of the project there at the facility …, and to work with Lee to, you know, get better accommodations ….

R.30-1/Parker dep. 62/PID-378. At that point, Cady testified, he saw someone coming out of the building, and he was able to get inside. R.34-1/Cady dep. 280-81/PID-726-27. He went into a conference room and began “doing some preparation and some work off my laptop,” including sending emails to Franz and Parker and working on some data files. Id. at PID-727.

Fifteen or twenty minutes later, Parker testified, Mittelstaedt called him and, in an “abrupt and forceful” conversation, told him he “wasn’t getting what he needed out of Robert.” R.30-1/Parker dep. 62/PID-378. According to Parker, Mittelstaedt’s “expectation was Robert was going to build the Creform stations,” and “he didn’t need someone to sit in the conference room and tell him how to do the work. He needed someone to help do the work out on the floor and building benches.” Id. Parker testified that he told Mittelstaedt “we were there to support his activities,” and that he had already spoken with Cady and would do so again. Id.

At some point thereafter, Cady met with Mittelstaedt and Vogel. R.34-1/Cady dep. 292, 296/PID-738, 742. According to Cady, he told them he “was willing to continue to work on Creform builds, but it was not my understanding that it would be an all week long task.” Id. at PID-737. Cady testified that he told Mittelstaedt and Vogel about his back issue and “requested accommodations” at that meeting, including varying his work hours and activities “to avoid repetitive-type activities or motions” and “getting a stool and getting out there so I didn’t have to bend over.” Id. at PID-739-40, 742. Cady testified that “I was willing to do whatever it would take to get it done, but I needed to have accommodations.” Id. at PID-739. Cady related that Mittelstaedt and Vogel were not particularly receptive to his concerns; Vogel told him he “didn’t need a pencil pusher and what he needed was … one of his production workers to be doing the assembly.” Id. at PID-732.

Approximately half an hour after his first call, Mittelstaedt called Parker back. R.30-1/Parker dep. 62/PID-378. According to Parker, Mittelstaedt told him that Cady “had explained that he had a back surgery and a concern of standing on concrete in the area that we were at.” Id. Parker testified that Mittelstaedt told him Cady had said he “couldn’t do this all day long,” and Mittelstaedt told Parker “he didn’t need Robert there if Robert was going to not be able to perform the physical labor of building the Creform stations and working the process at that point.” Id. Cady also sent Franz and Parker an email explaining that he had attempted to review the Creform construction process with Mittelstaedt but Mittelstaedt had refused. R.29-3/Cady email 7-16-13/PID-211.

At this point, which was around 3:00 p.m., Parker testified, he instructed Cady to go back to his hotel and work for the rest of the afternoon from his hotel room. R.30-1/Parker dep. 63/PID-379. Later that afternoon, according to Parker, there were a series of phone calls between Parker, Franz, Norwood, and Moore, and they made the decision to tell Cady to get on a plane the next day and return to Elizabethtown, which he did. Id.; R.34-1/Cady dep. 300/PID-746.

The next day, July 17, 2013, Parker, Franz, Norwood, and Moore met to discuss Cady’s situation. R.30-1/Parker dep. 71/PID-380. Parker testified that he stated at the meeting that if Cady “wasn’t going to be able to do this work, I didn’t need him at that particular point and on my team, more or less, in launching this product.” Id. According to Parker, Franz “indicated that … he didn’t really have another position that we could move him to that was available at that particular time,” and Norwood “counseled us into terminating Robert.” Id.

Remington terminated Cady’s employment on July 18, 2013, effective that same day. R.29-3/Cady termination letter/PID-212. Cady testified that Moore told him he was being “let go for performance issues,” and when Cady asked “what performance issues?,” Moore responded, “we’re not going to go into that today.” R.34-1/Cady dep. 302/PID-748.

After filing a charge of discrimination with the EEOC in August 2013 and receiving a right to sue letter, Cady filed timely suit in federal district court on March 27, 2014. R.1/Complaint/PID-1. In relevant part, his complaint alleged disability discrimination in violation of the ADA, stating, first, that “as a result of his disability he requested reasonable accommodations” that were denied, and, second, that the defendant “intentionally discriminated against Plaintiff in violation of the ADA … in that it discharged him because of his disability or because it regarded him as disabled.” Id. at PID-5.

B. District Court’s Decision

The district court granted Remington’s motion for summary judgment. The court began its analysis with the question of whether Cady had adduced “direct evidence” of discrimination, which it defined as “evidence that requires the conclusion that the unlawful discrimination was the ‘but for’ cause of the employment decision.” R.42/Memorandum Opinion (“Mem.”) p.6/PID-819). According to the court, if a plaintiff does not offer direct evidence of discrimination, “the Court applies the McDonnell Douglas burden-shifting framework.” Id. at PID-819-20.

Finding that Cady had failed to offer “direct evidence,” the court then turned to the issue of “whether Cady can establish prima facie cases for failure to accommodate and wrongful discharge” under McDonnell Douglas. Id. at PID-822. The court stated, “[a] prima facie case of disability discrimination for failure to accommodate requires the plaintiff show ‘1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) the employer knew or had reason to know of the plaintiff’s disability; 4) the plaintiff requested an accommodation; and 5) the employer failed to provide the necessary accommodation.’” Id. (quoting Brown v. Humana Ins. Co., 942 F. Supp. 2d 723 (W.D. Ky. 2013)).

According to the court, Remington “conceded [at oral argument] that Cady meets the statutory definition of disabled.” Id. at PID-823. Thus, it would assume “[f]or purposes of resolving this motion … that Cady meets the statutory definition of disability, and that his chronic back issues substantially limit the major life activity of standing.” Id. In a footnote, the court stated that “whether Cady’s chronic back issues satisfy the statutory definition of disability … is not clear from the record,” but ultimately concluded that, “[a]s the parties do not dispute this element of the prima facie case, the Court need not address it either.” Id. at PID-823 n.4.

The court then addressed Remington’s argument that it did not know or have reason to know of Cady’s disability. Id. at PID-824. It began by observing that “[a]t the most basic level, it is intuitively clear when viewing the ADA’s language in a straightforward manner that an employer cannot fire an employee ‘because of’ a disability unless it knows of the disability….” Id. (internal citation and quotation marks omitted). Accordingly, “[a]s an element of the prima facie case, the plaintiff must establish that the employer ‘knew or believed that the plaintiff was disabled, or knew of the plaintiff’s symptoms that were caused by the disability.’” Id. (quoting Burns v. City of Columbus, Dep’t of Pub. Safety, 91 F.3d 836, 844 (6th Cir. 1996)). “‘An employer has notice of an employee’s disability when the employee tells the employer that he is disabled.’” Id. (quoting Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir. 1999)).

Considering the record in the light most favorable to Cady, the court explained, there were “at most” “two moments” on July 16, 2013, “that could have provided Remington notice of [Cady’s] chronic back issues”: Parker and Cady’s initial phone conversation about Cady’s building the Creform benches and his back concerns, and Cady’s conversation with Mittelstaedt and Vogel later the same day. Id. at PID-826-28.[3] The court held that neither conversation “put Remington on notice of Cady’s disability as a matter of law.” Id. at PID-829. According to the court, Cady’s statements to Parker that he was “concerned” about his back and that he “felt he was hurting his back, and that he did not want to stand on concrete for long periods of time” were “vague assertions” that “absent more, cannot constitute notice of an impairment that substantially limits a major life activity.” Id.

With respect to Cady’s conversation with Mittelstaedt and Vogel, the court stated, “[a]t most, Cady disclosed that he had previous back surgeries and was concerned about his back…. [H]e did not disclose that his previous back surgeries stemmed from a disability.” Id. The court found, “Cady’s vague assertions of a history of back problems cannot constitute notice of an impairment that substantially limits a major life activity. See 42 U.S.C. § 12102(1)(A). Knowing that an employee has health problems or symptoms is not the same as knowing that an employee has a disability….” Id. at PID-829-30 (internal citations omitted). The court noted Cady’s testimony about his own fears about “how the physical activity may affect his back,” but held that it “has no bearing on whether Remington knew or had reason to know of his chronic back issues” because “[t]here is no testimony that Cady told anyone at Remington that he was afraid of ending up in the emergency room.” Id. at PID-830-31.

The court acknowledged that notice of an employee’s disability “need not be ‘precise.’” Id. at PID-831 (citing Crandall v. Paralyzed Veterans of Am., 146 F.3d 894, 898 (D.C. Cir. 1998)). Still, the court held, “telling an employer of one’s concern about potentially getting hurt or that one has had previous surgeries is not ‘an adequate, prior alert,’ … to Remington of Cady’s disabled status.” Id. (internal citation omitted). According to the court, “fear of hurting one’s back” or “previous back surgeries, without documentation from a physician, cannot constitute notice of a person’s chronic back issues.” Id. Thus, the court held, “[w]ithout sufficient evidence that Remington was on notice of Cady’s chronic back issues, Cady has not met his burden of establishing the notice element of his prima facie cases for failure-to-accommodate and wrongful termination.” Id.

The court also held that Cady failed to request a reasonable accommodation for his disability. The court first noted Remington’s arguments that Cady “never requested an accommodation over the eighteen month period he worked at the Elizabethtown facility,” that he did not request one when Mittelstaedt asked him if he was prepared to begin building the Creform workstations, and that Cady’s request was unreasonable because he “‘first mentioned that he was concerned about hurting his back after it became clear that Mittelstaedt and Vogel were growing frustrated with excuses.’” Id. at PID-832-33.

Noting Cady’s testimony that he asked to “‘mix up the work activity,’ which meant ‘some standing, some sitting, … and to avoid repetitive-type activities or motions,’” the court held that this was “not a reasonable request for an accommodation” because it “does not make clear from its context that it is being made in order to conform with existing medical restrictions.” Id. at PID-833. Thus, the court held, because “Cady has failed to offer sufficient evidence that he made a request,” Remington could not be liable for failing to accommodate Cady’s disability. Id. at PID-833-34.

ARGUMENT

The District Court Erred in Granting Summary Judgment to Remington on Cady’s A DA Accommodation Claim Based on Its Finding that Remington Had Insufficient Notice of Cady’s Disability or Need for an Accommodation.

A. The district court applied the wrong legal standard to Cady’s failure to accommodate claim.

Preliminarily, we note that the district court applied the wrong legal standard to Cady’s failure to accommodate claim. This Court has stated that it regards all such cases as “direct evidence” cases because “claims premised upon an employer’s failure to offer a reasonable accommodation necessarily involve direct evidence (the failure to accommodate) of discrimination. This conclusion is consistent with the definition of direct evidence, for if the fact-finder accepts the employee’s version of the facts, no inference is necessary to conclude that the employee has proven this form of discrimination.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007) (internal citations omitted).

Accordingly, this Court—like most other courts of appeal—does not apply the McDonnell Douglas “indirect evidence” burden-shifting scheme to ADA failure to accommodate cases. See, e.g., Nadler v. Harvey, No. 06-12692, 2007 WL 2404705, at *8-9 (11th Cir. Aug. 24, 2007) (citing published cases from five other circuits, observing that “applying McDonnell Douglas to reasonable accommodation cases would be superfluous, since there is no need to prove discriminatory motivation,” and holding that “McDonnell Douglas burden-shifting is not applicable to reasonable accommodation cases”); Bultemeyer v. Ft. Wayne Cmty. Sch., 100 F.3d 1281, 1283 (7th Cir. 1996) (holding that because a failure to accommodate claim “alleges facts which, if proven, could directly establish a violation of the ADA,” “[t]here is no need for indirect proof or burden-shifting”).

Rather, this Court applies a different burden-shifting analysis to failure to accommodate claims:

First, the plaintiff must establish a prima facie case by showing that he is disabled and otherwise qualified for the position, either with or without reasonable accommodation. Once the plaintiff has established a prima facie case, the burden shifts to the defendant to show that accommodating the plaintiff would impose an undue hardship on the operation of its business.

Rorrer v. City of Stow, 743 F.3d 1025, 1038-39 (6th Cir. 2014) (internal citations and quotation marks omitted); see also Kleiber, 485 F.3d at 869 (“(1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or she is ‘otherwise qualified’ for the position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged ‘essential’ job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.” (internal citation omitted)). This is the governing test here.

B. The district court erred in holding that no reasonable jury could find that Cady gave Remington sufficient notice of his need for an accommodation to invoke the ADA’s interactive process.

Although notice to the employer is not an explicit part of this Court’s burden-shifting test for failure to accommodate, the ADA itself requires it, as it does for all disability discrimination claims. See 42 U.S.C. § 12112(b)(5)(a) (defining “discriminate against a qualified individual on the basis of disability” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee” absent undue hardship (emphasis added)); 29 C.F.R. § 1630 app., § 1630.9 (“[A]n employer would not be expected to accommodate disabilities of which it is unaware…. In general, … it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.”); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002) (hereinafter “Accommodation Guidance”) (“Generally, the individual with a disability must inform the employer that an accommodation is needed.”).[4]

1. Timing of Notice

There is no independent requirement that employees disclose a disability to their employers in the absence of a need for an accommodation. In fact, the ADA makes it illegal for employers to conduct such inquiries themselves, with only limited exceptions delineated in the statute. 42 U.S.C. § 12112(d). Accordingly, for as long as Cady worked at Remington and did not need an accommodation—which was the case until his July 2013 trip to Minnesota—he was under no obligation to tell Remington anything about his back condition. The district court erred in finding that Cady’s failure to disclose his back condition or request an accommodation earlier—when he did not need one—should somehow weigh against him months or years later when he did require one.

There is no set time in the employment relationship when an employee with a disability must request an accommodation. As the EEOC’s Accommodation Guidance explains:

An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. The ADA does not preclude an employee with a disability from requesting a reasonable accommodation because s/he did not ask for one when applying for a job or after receiving a job offer. Rather, an individual with a disability should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment.

Accommodation Guidance, Q&A No. 4 (emphasis added).

Moreover, the fact that disability-related performance issues may already have arisen does not bar an employee from requesting a reasonable accommodation at that time. See EEOC Fact Sheet, The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities (hereinafter “Fact Sheet”) (“The ADA does not compel employees to ask for accommodations at a certain time. Employees may ask for reasonable accommodation before or after being told of performance problems.”).[5]

As the Fact Sheet further explains, “Sometimes, an employee may not know or be willing to acknowledge that there is a problem requiring accommodation until the employer points out deficiencies in performance….” Id. § III(A), Q&A No. 5. “When an employee requests a reasonable accommodation in response to the employer’s discussion or evaluation of the person’s performance, the employer may proceed with the discussion or evaluation but also should begin the ‘interactive reasonable accommodation process….’” Id., Q&A No. 6.

Thus, there was nothing wrong with the timing of Cady’s request for an accommodation for his disability: he made the request as soon as he knew that there was a workplace barrier—the Creform-building task—that was preventing him, due to his back condition, from performing his job effectively. This was also the very first time he had ever been asked to perform such a task as part of his job, and it was logical that he had never sought such an accommodation before.

2. Content of Notice

Based on the evidence in the record, a reasonable jury could find that Cady made a valid accommodation request from Remington on July 16, 2013. As the Accommodation Guidance explains, when an employee requests a reasonable accommodation, he “must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition”; the request need not be in writing, and he “may use ‘plain English’ and need not mention the ADA or use the phrase ‘reasonable accommodation.’” Accommodation Guidance, Q&A Nos. 1, 3. See also Smith v. Henderson, 376 F.3d 529, 535 (6th Cir. 2004) (record permitted inference of accommodation request where plaintiff’s letter “did not use the word ‘accommodation’ or mention that she was seeking to delegate the accounting function because of her disability”); EEOC v. C.R. England, Inc., 644 F.3d 1028, 1049 (10th Cir. 2011) (“Although the notice or request ‘does not have to be in writing, be made by the employee, or formally invoke the magic words “reasonable accommodation,”’ it ‘nonetheless must make clear that the employee wants assistance for his or her disability.’”) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (“An employee is not required to use any particular language when requesting an accommodation but need only ‘inform the employer of the need for an adjustment due to a medical condition.’”) (quoting Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) (en banc), vacated on other grounds sub nom. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002)).

A reasonable jury could credit Cady’s testimony that he told Norwood on July 11—before going to Minnesota, and before needing an accommodation—about his worsening back condition and the treatment he was undergoing with Dr. Cole. R.34-1/Cady dep. 157-58, 161-62, 187/PID-603-04, 607-08, 633. With respect to the events of July 16, Cady’s and Parker’s deposition testimony is sufficient to support a reasonable jury finding that Cady did enough to request a reasonable accommodation from Remington: he put the company on notice that he needed a change at work (vis-à-vis the Creform-building project) for a reason related to a medical condition: his back condition and his history of back surgeries.[6] R.30-1/Parker dep. 60-62/PID-377-78; R.34-1/Cady dep. 291-94, 296/PID-737-40, 742.

At this point, Remington had an obligation under the ADA to engage in the interactive process with Cady and to explore the availability of reasonable accommodations. As this Court has explained:

The ADA … “mandates an individualized inquiry in determining whether an [employee’s] disability … disqualifies him from a particular position.” [Keith v. Cty. of Oakland, 703 F.3d 918, 923 (6th Cir. 2013)] (internal quotations and citation omitted). The individualized inquiry is an “interactive process” in which “both parties have a duty to participate in good faith.” Kleiber, 485 F.3d at 871. The purpose is to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Id. (citing 29 C.F.R. § 1630.2(o)(3))…. “If this process fails to lead to reasonable accommodation of the disabled employee’s limitations, responsibility will lie with the party that caused the breakdown.” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005).

Rorrer, 743 F.3d at 1040.

Finally, the district court further erred in holding that Cady’s request was insufficient because he did not provide supporting documentation from his doctor at the outset. As the Accommodation Guidance explains (Q&A No. 6), an employer is free to request documentation—medical or otherwise—“when the disability and/or the need for accommodation is not obvious…. The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.” However, it is undisputed in this record that, even though such documentation plainly existed in the form of Dr. Cole’s records, Remington never requested it. Thus, while Cady might have been required to provide this kind of information to Remington as part of the interactive process, it was not a prerequisite to initiate that process.

C. A reasonable jury could find that Cady proposed a reasonable accommodation within the meaning of the A DA, but Remington refused to engage in the interactive process required by the statute.

The district court’s analysis of Cady’s failure to accommodate claim basically ended with its finding that Cady had failed to request an accommodation at all or put Remington on notice of his disability. Nonetheless, there are several related arguments Remington made to the district court that warrant mention here, lest they should arise as alternate grounds for affirmance on appeal.

Under the burden-shifting scheme applicable to reasonable accommodation claims, after making the relevant showing that he is disabled, the plaintiff next bears the burden of showing that he is “otherwise qualified” for his position with or without a reasonable accommodation. Rorrer, 743 F.3d at 1038; Kleiber, 485 F.3d at 869. Here, a reasonable jury could find that Cady met his burden based on two aspects of the record evidence: his testimony about his conversations on July 16, 2013, with Mittelstaedt, Vogel, and Parker, and the virtually uncontroverted record evidence that building the Creform workstations was not an essential function of his job.

As described above, Cady testified that when he spoke with Mittelstaedt and Vogel on the afternoon of July 16, he told them he “was willing to continue to work on Creform builds,” but he “requested accommodations” for his back issues, including varying his work hours and activities “to avoid repetitive-type activities or motions” and “getting a stool and getting out there so I didn’t have to bend over.” R.34-1/Cady dep. 291-94, 296/PID-737-40, 742. At this point, Cady had already tried to do the task by himself that morning the way Vogel had told him to, and had been unable to continue because of his back. R.34-1/Cady dep. 274-75, 279-80, 282, 286/PID-720-21, 725-26, 728, 732. There is no evidence in the record to suggest Cady’s requests were “unreasonable” beyond Mittelstaedt’s and Vogel’s insistence that they “didn’t want a pencil-pusher” and their demands that Cady be sent back to Kentucky if he didn’t build the Creforms the way they wanted. R.30-1/Parker dep. 62/PID-378.

Moreover, as this Court has held, because a reasonable jury could readily find that the Creform-building task was not an essential function of Cady’s job, even if he had proposed that the task be reassigned entirely, that would have constituted a reasonable accommodation. See Rorrer, 743 F.3d at 1044 (“Shifting marginal duties to other employees who can easily perform them is a reasonable accommodation.”)

This Court addressed the standard for determining whether a job function is essential in great detail in Rorrer. The Court began by emphasizing that “[w]hether a job function is essential ‘is a question of fact that is typically not suitable for resolution on a motion for summary judgment.’” 743 F.3d at 1039 (quoting Keith, 703 F.3d at 926). The Court then turned to the ADA and its implementing regulations for guidance:

Essential functions are “the fundamental job duties of the employment position the individual with a disability holds or desires. The term ... does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). A job function may be considered essential because (1) the position exists to perform the function, (2) a limited number of employees are available that can perform it, or (3) it is highly specialized. Id. § 1630.2(n)(2). “Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors.” … Two factors are “the employer’s judgment as to what functions of a job are essential” and an employer’s “written description” of the job. 42 U.S.C. § 12111(8). The regulations accompanying the ADA also direct a court to consider five additional factors:

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3)(iii)-(vii).

743 F.3d at 1039.

The Rorrer Court also emphasized that, “at the summary judgment stage, the employer’s judgment will not be dispositive on whether a function is essential when evidence on the issue is ‘mixed,’” noting that, “[i]f an employer’s judgment about what qualifies as an essential task were conclusive, an employer that did not wish to be inconvenienced by making a reasonable accommodation could, simply by asserting that the function is essential, avoid the clear congressional mandate that employers mak[e] reasonable accommodations.” Id. (internal citation and quotation marks omitted). Likewise, the Rorrer Court observed, “[w]ritten job descriptions are also not dispositive.” Id. at 1039; see also id. at 1039-40 (“[A]n employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description.”) (internal citation and quotation marks omitted).

There is virtually no record evidence that repetitive building of workstations was an essential function of Cady’s job. His job description makes no mention of doing this kind of work, and both Cady and his supervisor testified that his job was mostly sedentary office work; when he was not at his desk, he was holding meetings, testing firearms, traveling, and meeting with vendors. R.29-3/Position Description/PID-155-57; R.33-1/Franz dep. 61-62/PID 428-29; R.34-1/Cady dep. 170-71/PID-616-17.

Finally, a jury could find, based on the record evidence, that Remington was entirely responsible for the breakdown in the interactive process in this case. It is essentially undisputed in the record that, after Cady informed Parker, Mittelstaedt, and Vogel that he needed to change how the Creform-building task was being performed because of his back problems, Mittelstaedt responded by telling Parker that if Cady could not build the Creforms, he did not want Cady at the plant at all. It is also undisputed that Parker, Franz, Norwood, and Moore responded by bringing Cady back to Elizabethtown the next day and terminating his employment, without any further discussion of Cady’s need for an accommodation either before or after he left Minnesota. See Rorrer, 743 F.3d at 1040 (“Failing to discuss a reasonable accommodation in a meeting in which the employer takes an adverse employment action against an injured employee may demonstrate a lack of good faith. Similarly, failing to assist an employee in seeking an accommodation may suggest bad faith.”) (internal citations omitted).

Accordingly, a reasonable jury could find that Cady met his burden of establishing a prima facie showing that he proposed a reasonable accommodation, and it could also find that Remington responded by summoning Cady back to Elizabethtown and terminating his employment without further discussion. Based on this Court’s precedent, summary judgment in Remington’s favor on Cady’s failure to accommodate claim is unwarranted.

CONCLUSION

For the foregoing reasons, the judgment of the district court as to Cady’s ADA claim for failure to accommodate his disability should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@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 6,989 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

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s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

Dated: April 25, 2016

Record Entry #	Document Description	Page ID #
1	Complaint	1-8
29-3	Staff Engineer position description	155-58
29-3	Robert Cady offer letter	183-84
29-3	Robert Cady email of 7-16-13	211
29-3	Robert Cady termination letter	212
29-9	Excerpts from deposition of Dr. John S. Cole, IV	309-15
29-10	Robert Cady medical records	317-27
29-16	Declaration of Todd Mittelstaedt	356-58
30-1	Deposition of Greg Parker	362-92
33-1	Deposition of Scott Franz	413-43
34-1	Deposition of Robert Bruce Cady	447-765
35-1	Robert Cady email of 7-12-13	785
42	Memorandum Opinion	814-36
46	Transcript of Motion Hearing 12-15-15	861-917

[1] The Commission takes no position with respect to any other issue presented in this appeal.

[2] Cady initially testified that he began seeing Dr. Cole in May 2013, but he then corrected himself and explained that the dates were in July. R.34-1/Cady dep. 33, 35-36/PID-479, 481-82.

[3] According to the court, “[a]t oral argument, Cady’s counsel conceded that Remington could not have known nor had reason to know of Cady’s disability until July 16, 2013.” Id. at PID-826. According to the transcript of the motion hearing, though, it seems that Cady’s counsel simply agreed with the court that July 16, 2013, was the first time Cady requested an accommodation—not the first date Remington knew of his disability. See R.46/Tr. Mot. Hrg. 12-15-15 p.38/PID-898.

[4] At http://www.eeoc.gov/policy/docs/accommodation.html.

[5] At http://www.eeoc.gov/facts/performance-conduct.html.

[6] Any skepticism the district court expressed as to whether Cady was indeed disabled under the ADA was unwarranted, particularly after the passage of the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). See 29 C.F.R. §§ 1630.1(c)(4) (“Consistent with the Amendments Act’s purpose of reinstating a broad scope of protection under the ADA, the definition of ‘disability’ in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.”), 1630.2(i)(1)(ii) (defining “major life activities” to include “the operation of a major bodily function, including … musculoskeletal [functions]. The operation of a major bodily function includes the operation of an individual organ within a body system.”).