_____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ No. 07-20661 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CHEVRON PHILLIPS CHEMICAL CO., LP, Defendant-Appellee. On Appeal from the United States District Court for the Southern District of Texas BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT The EEOC requests oral argument in this case. This appeal involves a complex factual record and several legal issues new to this Court, including whether sleeping and thinking are major life activities under the ADA. Oral argument would help to address any questions the Court may have about such a ruling. Additionally, oral argument would allow the Court to satisfy any concerns it may have regarding the record. TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . . . 16 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO CPCHEM BECAUSE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT NETTERVILLE WAS A QUALIFIED INDIVIDUAL WITH A DISABILITY AND THAT CPCHEM DENIED HER A REASONABLE ACCOMMODATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 28 A. There is sufficient evidence to support a finding that Netterville's CFS substantially limited three major life activities: sleeping, caring for herself, and thinking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 B. There is sufficient evidence to support a finding that CPChem failed to provide a reasonable accommodation for Netterville's known physical limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 II. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT CPCHEM FIRED NETTERVILLE BECAUSE SHE HAD A DISABILITY AND SHE REQUESTED REASONABLE ACCOMMODATION. . . . . . . . . . . . . . . . . . 46 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 53 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . 54 TABLE OF AUTHORITIES CASES Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993), cert. denied, 511 U.S. 1030 (1994). . . . . . . . . . . . . . . . . . . . . . . . 43 Battle v. United Parcel Service, Inc., 438 F.3d 856 (8th Cir. 2006). . . 35, 36 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . 30-31, 41 Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007). . . . . . . . . . . . 46 n.6 Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997). . . . . . . . . . . . . . 29 Burks v. Wisconsin Department of Transportation, 464 F.3d 744 (7th Cir. 2006). . . . . . . . . . . . . . . . . . . . 32, 33 Calero-Cerezo v. United States Department of Justice, 355 F.3d 6 (1st Cir. 2004). . . . . . . . . . . . . . . . . . . . . 30, 35 Carter v. Ridge, No. 07-20275, 2007 WL 4104349 (5th Cir. Nov. 19, 2007). . . . . . . . . . . . . . . . . . . . . 29-30, 33 Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000). . . . . . . . . . . . . . . . . . 40 Cassimy v. Board of Education, 461 F.3d 932 (7th Cir. 2006). . . . . . 46-47 n.6 Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . 38 Cutrera v. Board of Supervisors of Louisiana State University, 429 F.3d 108 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . 45 Dupre v. Charter Behavioral Health System of Lafayette, Inc., 242 F.3d 610 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 22 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995). . . . . . . . 31, 34 EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001) 30, 35, 38 Emory v. AstraZeneca Pharmaceuticals LP, 401 F.3d 174 (3d Cir. 2005). . . . . . 41 Evans v. City of Dallas, 861 F.2d 846 (5th Cir. 1988). . . . . . . . . . . . 38 Felix v. New York City Transit Authority, 324 F.3d 102 (2d Cir. 2003). . . . . . 30 Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997). . . . . . . . . 25 Freadman v. Metropolitan Property & Casualty Insurance Co., 484 F.3d 91 (1st Cir. 2007). . . . . . . . . . . . . . . . . . 46-47 n.6 Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565 (3d Cir. 2002). . . 35, 37 Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11 (1st Cir. 2002). . . 42 Gowesky v. Singing River Hospital System, 321 F.3d 503 (5th Cir.), cert. denied, 540 U.S. 815 (2003). . . . . . . . . . . . . . . . . . 47-48 Hamilton v. Southwest Bell Telegraph Co., 136 F.3d 1047 (5th Cir. 1998). . . 34 Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005). . . . . . passim Heisler v. Metropolitan Council, 339 F.3d 622 (8th Cir. 2003). . . . . . 46-47 n.6 Jenkins v. Cleco Power LLC, 487 F.3d 309 (5th Cir. 2007). . . . . . . . . 31, 45 Krouse v. American Sterilizer Co., 126 F.3d 494 (3d Cir. 1997). . . . . . 46-47 n.6 Loulseged v. Akzo Nobel, Inc., 178 F.3d 731 (5th Cir. 1999). . . . . . . . . 25, 45 Minter v. Great American Insurance Co., 423 F.3d 460 (5th Cir. 2005). . . . . . 26 Moody v. M.W. Kellogg Co., 176 F.3d 479, 1999 WL 153032 (5th Cir. Mar. 8, 1999). . . . . . . . . . . . . . . . . . . . . . . .34-35 Nadler v. Harvey, No. 06-12692, 2007 WL 2404705 (11th Cir. Aug. 24, 2007). . . . . . . . . . . . . . . . . . . . 30, 32, 33 Nawrot v. CPC International, 277 F.3d 896 (7th Cir. 2002). . . . . . . . . . . . 35 Nuzum v. Ozark Automotive Distributors, Inc., 432 F.3d 839 (8th Cir. 2005). . . 33 Pack v. Kmart Corp., 166 F.3d 1300 (10th Cir. 1999). . . . . . . . . 30, 35-36 Pryor v. Trane Co., 138 F.3d 1024 (5th Cir. 1998). . . . . . . . . . . . 37-38 Riel v. Electric Data System Corp., 99 F.3d 678 (5th Cir. 1996). . . . . . . . . 43 Rizzo v. Children's World Learning Centers, Inc., 173 F.3d 254 (5th Cir. 1999). . . . . . . . . . . . . . . 43, 44, 45-46 Rossbach v. City of Miami, 371 F.3d 1354 (11th Cir. 2004). . . . . . . . . 32 Samuels v. Kansas City, Missouri School District, 437 F.3d 797 (8th Cir. 2006). . . . . . . . . . . . . . . . . . . . . 39-40 Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893 (5th Cir. 2002). . . . . . 48-49 Scheerer v. Potter, 443 F.3d 916 (7th Cir. 2006). . . . . . . . . . . . . . . 30 Septimus v. University of Houston, 399 F.3d 601 (5th Cir. 2005). . . . . . . . . 24 Shannon v. Henderson, 275 F.3d 42, 2001 WL 1223633 (5th Cir. Sept. 25, 2001). . . . . . . . . . . . . . . . . . . . . . . . 39 Squibb v. Memorial Medical Center, 497 F.3d 775 (7th Cir. 2007). . . . . . . . . 32 Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (10th Cir. 1998). . . 46-47 n.6 Sutton v. United Air Lines, 527 U.S. 471 (1999). . . . . . . . . . . . . . . . . 40 Swanson v. University of Cincinnati, 268 F.3d 307 (6th Cir. 2001). . . . . . 33, 40 Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996). . . . . .44 Toyota Motor Manufacturing of Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). . . . . . . . . . . . . . . . . . . . . . . . 30, 41 Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 1995). . . . . . . . . . . . . . . . . . . . . 38-39 STATUTES 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. . . . . . . . 1 42 U.S.C. § 12102(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 28 42 U.S.C. § 12111(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 46 & n.6 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . 28, 43 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12203(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 REGULATIONS 29 C.F.R. § 1630.2(h)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 29 29 C.F.R. § 1630.2(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 29 C.F.R. § 1630.2(j)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 31 29 C.F.R. § 1630.2(j)(2). . . . . . . . . . . . . . . . . . . . . . . . . . 31, 37 29 C.F.R. § 1630.2(o)(1)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . 43 29 C.F.R. § 1630 app., § 1630.2(j). . . . . . . . . . . . . . . . . . . . . 37, 38 29 C.F.R. § 1630 app., § 1630.9 (1995). . . . . . . . . . . . . . . . . . . . . 43 RULES Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 53 OTHER AUTHORITIES Section 902.3, Major Life Activities, 2 EEOC Compliance Manual (2007), http://www.eeoc.gov/policy/docs/902cm.html. . . . . . . . . . . . . . . . . . 35 Section 902.4(d), Duration and Impact of Impairment, 2 EEOC Compliance Manual (2007), http://www.eeoc.gov/policy/docs/902cm.html. . . . . . . . . . . . 39 EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html. . . . . . . . . . . . . . 43-44 Centers for Disease Control & Prevention, CFS Basic Facts, May 9, 2006, http://www.cdc.gov/cfs/cfsbasicfacts.htm. . . . . . . . . . . . . . . . . . . . 39 Massachusetts CFIDS Ass'n, Chronic Fatigue & Immune Dysfunction Fact Sheet, at http://www.masscfids.org/html/CFIDS_Fact_Sheet_2002.htm (last visited Nov. 6, 2007). . . . . . . . . . . . . . . . . . . . . . . . 6 n.2 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 district court granted summary judgment to the defendant on July 5, 2007. RE-T.3 (ROA-1044).<1> The EEOC filed a timely notice of appeal on August 30, 2007. RE- T.2 (ROA-1182). This Court has jurisdiction under 28 U.S.C. § 1291. ISSUES PRESENTED FOR REVIEW 1. Whether there is sufficient evidence to support a finding that Lorin Netterville had a disability that the defendant failed to reasonably accommodate. 2. Whether there is sufficient evidence to support a finding that the defendant fired Netterville because she had a disability and requested an accommodation. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court dismissing this ADA enforcement action. The EEOC filed suit in September 2005, alleging that the defendant violated Title I of the ADA by failing to provide a reasonable accommodation to Lorin Netterville and terminating her employment because she had a disability and requested a reasonable accommodation. R.1-1 (ROA-11). On June 5, 2007, the magistrate judge issued a memorandum recommending that the defendant's motion for summary judgment be granted. R.56 (ROA-923). The EEOC timely filed objections to the recommendation on June 19, 2007. R.58 (ROA-954). The district court entered an order adopting the magistrate's recommendation and granting the defendant's motion for summary judgment on July 5, 2007. RE-T.4 (ROA-1043). The EEOC filed a notice of appeal on August 30, 2007. RE-T.2 (ROA-1182). B. Statement of the Facts Lorin Netterville began working for Chevron Phillips Chemical Company ("CPChem") as an administrative aide in its Specialty Chemicals Group in April 2001 after having worked as a temporary clerical at the company since approximately December 2000. R.46-Exh.1-47, RE-T.6-2 (ROA-538, 1218). Netterville reported to Gary Thurman, a customer service manager, who in turn reported to Dan Coombs, the general manager of the Specialty Chemicals Group. R.46-Exh.1-51, Exh.2-14, 18 (ROA-539, 601, 602). Thurman, in conjunction with Coombs, made the decision to offer Netterville permanent employment with CPChem, and both Thurman and Coombs directed Netterville's work after she was hired. R.46-Exh.1-51, Exh.2-24-25 (ROA-539, 603). In April 2001, when Netterville was offered permanent employment with CPChem, she was required to complete and sign a medical history questionnaire. RE-T.7 (ROA-343-49) (redacted version). Among other questions, the questionnaire contained a list of seventy-five conditions under the heading "HAVE YOU EVER HAD, OR DO YOU NOW HAVE," and asked the subject to check a "yes" or "no" box in response to each. Id. Netterville checked "yes" to seventeen of the listed conditions, including ringing in the ears, various ear/nose/throat conditions, pneumonia, swelling in the legs, high blood pressure, ulcer, thyroid trouble, arthritis, and use of "street drugs," and then provided explanations for each; she checked "no" for the remaining conditions, including number 24, "excessive fatigue with work or exercise," and number 36, "anemia or other blood condition/blood transfusion." Id. At the bottom of the page containing the list of conditions, directly above the signature line, the form stated, "I understand that any misrepresentation, false statement, or omission herein may result in the company rejecting my application, withdrawing any offer of employment, or terminating my employment at any time." Id. Netterville's job duties as an administrative assistant included answering phones and making telephone calls, writing memos, doing weekly reports, helping to prepare for monthly staff meetings, sorting mail, entering data, making travel arrangements, and other general secretarial duties. RE-T.6-2 (ROA-1218). She worked at a desk in a conventional office environment, with carpeting, windows, and air conditioning. R.46-Exh.3-56 (ROA-663). In 2001, in anticipation of an office move scheduled for August 2002, Netterville participated in the design of the new office building. RE-T.6-3 (ROA-1219). The parties do not dispute that Netterville's job performance was generally satisfactory, and, on the last performance appraisal she received before her termination, dated February 24, 2003, she received a rating of "Fully Meets Performance Expectations." R.46- Exh.2-62, 129, Exh.18-4, RE-T.6-2-3 (ROA-613, 629, 753, 1218-19). Beginning in May 2002, Netterville frequently worked overtime packing boxes and cleaning out offices in anticipation of the move. R.46-Exh.1-177, RE- T.6-3 (ROA-570, 1219). Around this time, Netterville began having trouble sleeping, and found that the sleep she did get was not refreshing. She attributed this to the stress from the move, the overtime, and the physical labor associated with it. RE-T.6-3 (ROA-729). However, after the move her sleep problems not only continued, but worsened. Eventually, for two weeks out of every month she got no more than one or two hours of sleep a night for six or seven days in a row, and then three or four hours of sleep a night on the remaining days, often waking up hourly. RE-T.6-3, 7 (ROA-1219, 1223). Approximately one day a month, Netterville would sleep for up to 17 hours. RE-T.6-7 (ROA-1223). Between the fall of 2002 and July 2003, Netterville ran low-grade fevers in the late afternoons and early evenings at least 3-4 evenings per week, which also contributed to her inability to get to sleep. Id. Netterville also began to experience other symptoms, including headaches, disorientation, and sharp shooting pains in her temples. RE-T.6-3 (ROA-1219). She would "wake up hurting all over," with stiff joints and severe pain in her legs and arms. RE-T.6-8 (ROA-1224). Netterville was unable to walk or stand for more than 20-30 minutes without numbness in her leg and/or falling down, and she experienced excruciating pain in her legs when she sat in the same position for more than 30 minutes. Id. Netterville also had intermittent problems with memory, concentration, and decisionmaking. RE-T.6-6 (ROA-1222). At these times, she would experience aphasia and forget work assignments or instructions, people's names, and simple procedures like how to transfer a telephone call. Id. She also found that her "thoughts constantly jumped from one subject to another," and that she had trouble reading and making simple decisions at work. Id. She also became hypersensitive to light and sound, and her initial feelings of crankiness, volatility, and emotional sensitivity worsened to include extended crying periods and social isolation. RE-T.6-6-7 (ROA-1222-23). By the spring of 2003, Netterville was living with her sister, and she could not wake up on her own, cook for herself, wash her clothes, shop for food, shower, or dress herself; her sister had to assist her with, or perform, all of these tasks. RE-T.6-8-9 (ROA- 1224-25). Netterville struggled to dry her hair and even to wipe herself after using the bathroom due to "excruciating" pain in her arm. RE-T.6-9 (ROA-1225). She also began to experience morning nausea between August 2002 and July 2003, which made it difficult to get out of bed and get dressed. Id. Sometime in early 2003, Netterville visited her primary care doctor, Dr. Patricia Salvato, who diagnosed her as having a recurrence of her symptoms of Chronic Fatigue Syndrome ("CFS").<2> RE-T.8-4, RE-T.6-4 (ROA-767, 1220). As Dr. Salvato explained, CFS is a syndrome, recognized by the Centers for Disease Control, that is comprised of severe fatigue plus "four or more symptoms to include headaches of a new intensity or quality, profound fatigue, muscle or joint pain, sleep disturbance and severe memory and concentration problems." RE-T.8- 2 (ROA-765). Diagnosis of CFS is "based on ruling out other diseases that can cause similar symptoms"; there is no direct test for CFS at this time. Id. Dr. Salvato originally diagnosed Netterville with CFS in late 1987. RE-T.8-4 (ROA- 767). Dr. Salvato related that, after six weeks' treatment in 1987 with B-12 and gamma globulin injections, Netterville's symptoms improved and Dr. Salvato did not hear from Netterville again until 2001, when Netterville contacted her about unrelated health issues. Id. By the summer of 2002, however, Netterville reported to Dr. Salvato that her CFS symptoms were beginning to return, and, according to Dr. Salvato, by January of 2003 Netterville's CFS symptoms had become "severely disabling" and "affected her lifestyle by at least 50%." Id. From approximately January 2003 onward, according to Dr. Salvato, Netterville required two hours of rest for every one hour of activity that she performed, and Dr. Salvato related that she "expect[ed] this to be a permanent condition." RE-T.8-3 (ROA-766). Dr. Salvato also related that Netterville had severe fatigue and memory problems, severe muscle and joint pain, severe sleep disturbance, and depression, all resulting from CFS. RE-T.8-2 (ROA-765). Dr. Salvato explained that Netterville's symptoms interfered significantly with her abilities to shop, cook and clean house on a daily basis, balance her checkbook, or perform any other activities relating to memory and concentration. RE-T.8-2-3 (ROA-765-66). After Dr. Salvato diagnosed Netterville's recurrence of CFS, Dr. Salvato recommended that Netterville take a month off from work, but Netterville refused because she did not have enough leave. R.46-Exh.1-89, RE-T.6-4 (ROA-548, 1220). Dr. Salvato then informed Netterville that she needed to take at least two weeks' leave in order to rest, or she could end up out of work for six months. RE- T.6-4 (ROA-1220). On Tuesday, February 4, 2003, Dr. Salvato wrote a note to CPChem stating that, "[d]ue to her current clinical status, I have recommended that [Netterville] be off work for two weeks in an effort to recuperate her health and stamina. Patient will be re-evaluated after this two week period." RE-T.9 (ROA- 737). The next day, Netterville approached Thurman, gave him Salvato's note, explained that her CFS had recurred, and requested two weeks' medical leave. R.46-Exh.11 (ROA-742). Netterville also gave Thurman several information sheets about CFS that she had obtained from the Internet. R.46-Exh.1-81-82, Exh.13 (ROA-546-47, 744-45). At that time, according to Thurman, Netterville told him that she had not disclosed her diagnosis of CFS on her medical questionnaire at the time she was hired. R.46-Exh.11 (ROA-742). According to Netterville, Thurman asked her how long it had been since her CFS had returned, and Netterville replied, "I don't know. Two years?" R.46-Exh.1-82 (ROA-547). When she returned to her desk, Netterville realized that her reply was wrong since she had not been working for CPChem for two years. However, she did not go back to Thurman to correct her misstatement. Id. On the same day, February 5, Thurman e-mailed Steve Rugeley in HR, and conveyed his version of what Netterville had told him about her CFS and her need for two weeks' leave. RE-T.11 (ROA-741-42). Early in the morning the next day, Thursday, February 6, Rugeley forwarded Thurman's e-mail to Nancy Zamboras, RN, a member of CPChem's medical department. R.46-Exh.2-94-95, RE-T.11 (ROA-621, 741). In his e-mail to Zamboras, Rugeley asked her to check whether Netterville had "disclosed the previous incident of this syndrome," whether, if she had disclosed it, this would have "prevented her from being medically acceptable for employment," and, finally, "whether CFIDS is something that would even be disclosed on the questionnaire." RE-T.11 (ROA-741). Zamboras responded approximately two hours later that Netterville "did not disclose the syndrome" and that "yes there is a question asking about blood disorders and she indicated a negative response." Zamboras continued, "My professional opinion regarding medical clearance for employment would be the following: She would need to disclose her condition, and indicate if any accommodations would be required - at that point the matter would be run through your group and our medical director." Id. Netterville went out on two weeks' medical leave beginning on February 6, 2003. R.46-Exh.1-85-86 (ROA-547-48). On Tuesday, February 18, 2003, Netterville returned to Dr. Salvato for a followup appointment and re-evaluation, and on the same date Dr. Salvato released Netterville to return to work. RE-T.10, RE-T.12 (ROA-740, 743). Dr. Salvato's written release contained the following comment: "Released to return to full-time employment at a sub-station closer to her home." RE-T.10 (ROA-740). When Netterville attempted to return to work with the release provided by Dr. Salvato, Thurman rejected the release and refused to allow Netterville to return to work. R.46-Exh.3-46, 51-52, RE-T.6-4 (ROA- 661-62, 1220). Netterville testified that she tried to discuss the terms of the release with Thurman to clarify what her needs were, but Thurman refused to do so, replying: "No. We just can't take this. This isn't going to work." R.46-Exh.1-131 (ROA-559). Rugeley testified that, although CPChem did have a manufacturing facility closer to Netterville's home, the company did nothing to determine whether Netterville could have been employed there or in any other facility closer to her home because "we weren't sure what [the language in the release] meant" and because "she was an administrative assistant in a group that was located in The Woodlands," and "[t]he function she was performing was in The Woodlands." R.46-Exh.3-52-53 (ROA-662). Pete Borths, CPChem's Director of Labor Relations, also testified that he saw this release and did not look into whether Netterville's accommodation request could be honored because he was not aware of any vacancies elsewhere and because Dr. Salvato's note "doesn't explain at all why that's important from a medical standpoint." R.46-Exh.4-30, 80 (ROA-687, 699). Meanwhile, on Wednesday, February 19, Rugeley forwarded to Thurman Zamboras's response regarding Netterville's failure to disclose her CFS on her medical questionnaire. RE-T.11 (ROA-741). In his e-mail to Thurman, Rugeley referred to an upcoming meeting on the subject and stated, "The first issue is to get [Netterville] to formally disclose via statement from her physician including any restrictions. We can then run through medical and ask if disclosure would make her unacceptable for employment. Second, I'd get with [Borths] and see if we would terminate for falsifying the employment documents no matter what the answer from medical might be. Or does the answer from medical give us the answer to termination or continued employment."<3> Id. On Thursday, February 20, Dr. Salvato issued a second release for Netterville, releasing her "to return to her regular job duties, effective 2/21/03." RE-T.12 (ROA-743). In this release, Dr. Salvato described Netterville's limitations as follows: In reference to restrictions and limitations, Chronic Fatigue Syndrome is a self-limiting condition which produces symptoms of fatigue, muscle and joint pain and intermittent concentration difficulties. . . . In Ms. Netterville's case, she does suffer from neuropathy-type hand pain and concentration difficulties necessitating the need to alternate typing and reading, rather than typing for prolonged periods or reading for prolonged periods. In addition, it would not be unusual for her to require a short nap during her lunch break. These are reasonable accommodations which would not prevent her from performing her job duties. Id. Netterville was allowed to return to work, in her position at the facility at The Woodlands, on approximately February 21, 2003. R.46-Exh.2-54, RE-T.6-4 (ROA-611, 1220). According to Netterville, when she presented Thurman with Dr. Salvato's note of February 20, he "remained silent" and never agreed to or denied the accommodations requested in the note. However, Netterville testified that, for the remainder of her time at CPChem, she did in fact alternate her typing and reading tasks and took naps at lunch. R.46-Exh.1-136, RE-T.6-5 (ROA-560, 1221). The next Monday, February 24, Rugeley faxed a copy of Dr. Salvato's note to Zamboras for her review. RE-T.13 (ROA-746). Rugeley observed, "I do find the choice of words in the doctor's statement interesting," and asked Zamboras for "input from the medical perspective." Id. Rugeley inquired of Zamboras whether CPChem "[would] have disqualified Ms. Netterville from employment had she disclosed Chronic Fatigue Syndrome on her pre-employment medical questionnaire," and whether "we have a safety issue with having someone with this condition on the job." Id. Two days later, on Wednesday, February 26, 2003, Thurman and Rugeley called Netterville into a meeting to discuss her medical questionnaire. R-46-Exh.2- 59-60, 115-16, RE-T.6-5 (ROA-612, 626, 1221). At the meeting, neither Thurman nor Rugeley had Netterville's questionnaire with them, and Thurman testified that he had never seen her questionnaire. R.46-Exh.2-59, RE-T.6-5 (ROA-612, 1221). Rugeley asked Netterville about her history of CFS, what she had told Thurman about it when she requested medical leave from him back in early February, and why she had not disclosed the condition on the questionnaire when she was hired. R.43-Exh.3A, R.46-Exh.2-60, RE-T.6-5 (ROA-420-21, 612, 1221). Netterville related that she "recounted [her] experience with CFS 15 years earlier, its apparent remission and [her] recent re-diagnosis." RE-T.6-5 (ROA-1221). According to Netterville, when she was given the pre-employment medical questionnaire, the general question pertaining to whether she had ever experienced "excessive fatigue with work or exercise" did not cause her to think of CFS or to give a "yes" response because, at the time, she had not had any symptoms for more than fifteen years and, when she was experiencing CFS, the symptoms had nothing to do with work or exercise. RE-T.6-2 (ROA-1218). Netterville also related that Rugeley questioned her about whether she had told Thurman that her CFS symptoms had recurred in 2001, and she admitted that she had said that to Thurman, but that the recurrence was in fact "after the questionnaire and probably closer to 2002, but I was confused and distraught." RE-T.6-5 (ROA-1221). Rugeley then told Netterville that she was suspended from work and sent her home without pay for the rest of the day. R.43-Exh.3A, R.46-Exh.2-62-63, RE-T.6-5 (ROA-420, 613, 1221). Early in the morning the next day, Thursday, February 27, Rugeley e-mailed Zamboras and asked her to "reconfirm" that Netterville did not report CFS on her questionnaire and to verify "the exact language that she attested to on her questionnaire" regarding the consequences of providing false information. RE- T.14 (ROA-747). Zamboras responded approximately an hour later that Netterville did not report her CFS on the questionnaire and provided Rugeley with the language from Netterville's form. Id. At 3:45pm that same day, Thurman and Rugeley telephoned Netterville at home, and Thurman informed Netterville that her employment was being terminated "effective immediately for falsifying information on her pre-employment medical questionnaire." R.46-Exh.2-64, RE- T.15 (ROA-613, 748). Borths testified that, under CPChem's discipline policy, there were only four infractions that could result in immediate termination: fighting, stealing, falsification of information, and betting. RE-T.16-96-98 (ROA-703-04). During his time at CPChem, Borths had recommended fewer than 10 terminations. Id. at 92 (ROA-702). The examples he recalled were individuals who had multiple violations on their records for verbal abuse of other employees, sleeping on the job, and violations of safety rules, and were terminated only after progressive discipline. Id. at 92-97 (ROA-702-03). Borths testified that he could recall two occasions in the past when he had recommended that an employee be terminated for falsification of information, both of which occurred at the Houston Chemical Complex prior to the formation of CPChem as a corporate entity. RE-T.16-99 (ROA-704). In one instance, the employee falsely told the payroll department that he had lost a paycheck, and a replacement check was issued, but the employee had in fact cashed the first check. Id. The second instance involved falsification of information on a pre-employment medical questionnaire. The employee in question, who worked in the company's distribution department in an operational position, had medical restrictions on the use of her arm that she did not disclose. Id. at 100-01 (ROA-704). A few months into her employment, the employee injured herself on the job and went out on short-term disability until she was released to return to work. Id. at 102-03 (ROA- 705). On her return, Borths testified, he and others met with her to discuss the situation, and the employee admitted that she had deliberately concealed the condition because she "was concerned that if she disclosed it, she wouldn't be eligible for employment." Id. C. District Court's Decision 1. The Evidentiary Hearing CPChem moved for summary judgment on December 1, 2006. ROA-7. On May 29, 2007, the magistrate judge held an evidentiary hearing at which she questioned Netterville directly about her condition. ROA-8, R.57 (ROA-871-922). The magistrate stated that she had called the hearing because she had some questions about the affidavit Netterville submitted along with the Commission's opposition to the defendant's summary judgment motion - specifically, "[b]ecause [your symptoms] seem to have gotten much more severe in your affidavit than they were at the time of your deposition." R.57-3-4 (ROA-873-74).<4> In response, Netterville explained that, as of February 2003, she was experiencing the cognitive deficiencies daily for periods lasting from 30 minutes to a couple of hours. R.57-4-5 (ROA-874-75). During these periods, Netterville explained, she was capable of doing routine work tasks, so she tried to work on these types of tasks at these times. R.57-5-6 (ROA-875-76). When the magistrate judge asked how Netterville's requested accommodation of alternating reading and typing would have helped her with her cognitive problems, Netterville explained that that accommodation pertained more to the pain she was suffering in her hands than to her cognitive symptoms. R.57-6 (ROA-876). Netterville also told the magistrate that, as of 2003, she was "having a lot of . . . joint and muscular problems, muscular pain, in arms, legs, back, neck, shoulders," for which she took various pain medications. R.57-17 (ROA-887). Netterville explained that the pain medication lessened, but did not eliminate, her pain: "I would say, without it, my pain was a seven to a seven and a half on a scale of ten. With it, it was about a three." Id. Netterville also related that she had headaches at least three times a week and that she began to run a low-grade fever in the afternoons, but that she was not seeking an accommodation for either condition. R.57-18-21 (ROA-888-91). The magistrate judge asked Netterville, "Did anyone suggest it was menopause?"; Netterville replied, "No, they did not." R.57-21 (ROA-891). The magistrate judge then questioned Netterville about how her condition limited her daily activities. She told Netterville that "I'm having trouble reconciling your not being able to dress yourself with an ability to type." R.57-21 (ROA-891). Netterville explained that her CFS symptoms were the worst in the morning, when she had to shower and dress herself, and that she would need to lie down and rest for 15 or 20 minutes after taking a shower. R.57-22 (ROA-892). As the day went on, however, she gained some stamina and strength, and Netterville testified that "usually early afternoon is probably the best time of day for me . . . . That's when I'm able, that's when I have the most limberness, when I'm able to do the best. But early mornings are very difficult." Id. The magistrate also expressed skepticism that Netterville could drive a car but could not take care of herself, and Netterville responded that she had concentration problems while driving and would often drive past exits or fall asleep at the wheel and be awakened by the rumble strip along the side of the road. R.57-23 (ROA-893). Netterville also testified that she tried to take the company Park and Ride van whenever possible, but sometimes that would not work for her because she would either arrive too late to meet the van or would have to stay at work too late for the van's 4:30pm departure. R.57- 24 (ROA-894). Netterville's explanation, however, did not satisfy the magistrate. R.57-24- 25 (ROA-894-95) ("So then, I'm trying to figure out still how this is all working, because it sounds like in the mornings you had pain; could not manipulate your fingers well enough to put on your clothes; couldn't shower or wash your hair; couldn't perform other bathroom tasks; had difficulty driving to work, but then you got to work and you were able to perform your job? That's where I'm having the hard time figuring that out. It doesn't - I just don't understand how that works."); R.57-25 (ROA-895) ("I'm having a hard time reconciling the fact that you're saying, 'I, you know, can't take a shower; I can't wash my hair; I can't put on my own clothes; but if I really wanted to, I could do my job.' . . . Either you can do it or you can't."). When Netterville admitted that she struggled sometimes, and that her standard of professional dress suffered as a result, the magistrate asked her, "[w]hat is the difference if putting on clothes . . . is going to hurt anyway?" R.57- 26 (ROA-896). Netterville explained that she was also depressed and struggling with depression alongside fatigue, so that she would " just [] pull the first thing out of my closet," at which point the magistrate asked her, "[i]f you are also depressed and don't care what you look like, how are you able to perform your job?" R.57- 26-27 (ROA-896-97). Netterville explained that her condition made it more difficult to do her job, and that this was why she needed to take the two weeks off to get enough rest to be able to do her job, to which the magistrate judge responded, "If you need time off, that is being unable to do your job." R.57-27 (ROA-897) Netterville replied, "No, it's resting and getting some stamina back so you can do the job." Id. Netterville also testified that she was taking antidepressants at this time - either Zoloft or Lexapro - and that, when she told Dr. Salvato about her increased depression, Dr. Salvato increased the dosage of her antidepressant. R.57-28-29 (ROA-898-99). Netterville explained that Dr. Salvato increased her dosage right around the time she requested the two weeks' medical leave, and it takes a couple of weeks for increased dosages of antidepressants to "kick in," but that she was feeling "a whole lot better" by the time she returned to work. R.57-29 (ROA-899). She also told the magistrate judge that the pain in her hands and legs had improved, that her stamina and concentration were better, and that she was able to dress herself. R.57-29-30 (ROA-899-900). Netterville also testified that her sleep had improved with an increased dosage of Ambien; she was now sleeping approximately five or six hours a night. R.57-30-31 (ROA-900-01). She had also started a regimen of GLA-ATP injections, which she said helped her energy levels. R.57-33 (ROA-903). Overall, Netterville testified, as long as she took her medication, her symptoms were all much better. R.57-36 (ROA-906). 2. The Magistrate Judge's Opinion On June 5, 2007, the magistrate judge issued a Memorandum Recommendation and Order recommending that CPChem's motion for summary judgment be granted. RE-T.3 (ROA-923). Turning first to the Commission's claim that CPChem discriminated against Netterville on the basis of a disability, the magistrate stated that, based on the testimony in Netterville's "post-deposition affidavit," id. at 16 (ROA-938), the Commission argued that Netterville's CFS rendered her substantially limited in caring for herself, sleeping, sitting and standing, thinking, concentrating, and remembering. The magistrate judge stated that, because "Netterville's affidavit testimony called into question whether she was qualified to perform her job, the court held a hearing to unravel Netterville's confusing array of symptoms and to determine the nature and severity of the impairments she was experiencing prior to her termination in February 2003." RE- T.3-17 (ROA-939). The magistrate then went on to summarize Netterville's testimony at the hearing, concluding that, "[i]n light of Netterville's testimony, it appears that she suffers from intermittent manifestations of chronic fatigue syndrome and has experienced short-lived, non-permanent and non-severe impairments in the areas of sitting, standing, sleeping, and caring for herself." Id. at 19 (ROA-941). The magistrate concluded, "[b]ased on the record in this case, no reasonable jury could conclude that her impairments substantially limited her ability to sit, stand, sleep, or care for herself," and, accordingly, she did not have a disability within the meaning of the ADA. Id. The magistrate judge also rejected the Commission's claims that the defendant discriminated against Netterville because she had a record of a disability, or because it regarded her as disabled. RE-T.3-20 (ROA-942). The magistrate observed that, in order to establish discrimination on the basis of a record of a disability, "[p]laintiff must show that Netterville had a record of an impairment and that the impairment substantially limited a major life activity." Id. (citing Dupre v. Charter Behav. Health Sys. of Lafayette, Inc., 242 F.3d 610, 615 (5th Cir. 2001)). The magistrate found that the Commission failed to meet that standard, noting that "[p]laintiff's mere disclosure of an earlier onset of chronic fatigue syndrome is insufficient to show that Netterville had a record of an impairment or that the condition had substantially limited a major life activity of which the Defendant was aware." Id. The magistrate rejected the Commission's argument that the defendant regarded Netterville as substantially limited in working because "[t]here is simply no evidence that raises a fact issue that Defendant mistakenly believed that Netterville was not able to work at her job or in a broad category of jobs," noting Borths' deposition testimony that CPChem did not believe her continued employment raised a "safety issue" and CPChem's lack of objection to Netterville's request for an accommodation for her CFS on February 5, 2003. RE-T.3-21-22 (ROA-943-44). The magistrate then stated that, even if Netterville was disabled under the ADA, the Commission's claim would nonetheless fail because the defendant established a legitimate nondiscriminatory reason for her termination: lying on her medical questionnaire. RE-T.3-23-24 (ROA-945-46). According to the magistrate judge, "the questionnaire expressly warned that providing false information on the form would be grounds for termination," and "Netterville admitted that she deliberately chose not to report her past medical history of chronic fatigue syndrome on the form despite the warnings on the form as to the consequence of providing false or incomplete information." Id. at 23 (ROA-945). According to the magistrate, the Commission's argument that the falsification was a pretext for discrimination was based on the following rationale: "(1) Netterville's termination for falsification was 'unprecedented,' (2) Netterville was terminated by the Human Resources Department and not by her supervisor, and (3) Netterville's two-week leave request and possible falsification of the medical questionnaire were brought to the attention of high-level Human Resources personnel prior to her termination, making the circumstances under which she was terminated out of the ordinary." Id. at 24 (ROA-946). The magistrate judge rejected this argument, pointing to Borths' testimony that there were "two other instances where employees were terminated for falsification of information, both several years earlier at the predecessor company to Defendant," id., and that there was nothing about the participation of Human Resources in the decision to terminate Netterville that had any bearing on pretext. Id. at 24-25 (ROA-946-47). Accordingly, the magistrate recommended granting summary judgment to the defendant on the Commission's discrimination claim. Next, the magistrate turned to the Commission's claim that the defendant illegally retaliated against Netterville for seeking an accommodation under the ADA. Mem. at 25 (ROA-947). The magistrate judge found that Netterville had engaged in a protected activity "when she requested to be allowed to alternate reading and typing tasks and to take a nap during her lunch hour on February 21, 2003, and that she suffered an adverse employment action when she was suspended on February 26, 2003, and later terminated." Id. at 26 (ROA-948). The magistrate also found that the close timing between Netterville's request for an accommodation and her termination was sufficient to support a causal connection between the protected activity and an adverse action. Id. at 27 (ROA-949). The magistrate noted that, as it had already explained, CPChem had already proffered a legitimate, nondiscriminatory reason for Netterville's termination; thus, it fell to the Commission to prove pretext. RE-T.3-27 (ROA-949). According to the magistrate judge, "Plaintiff's ultimate burden of proving retaliation is showing that 'but for' the protected activity, Defendant would not have taken the adverse action." Id. (citing Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005)). However, the magistrate observed, "Plaintiff has not submitted any evidence, other than its own conclusory opinions and non-relevant facts discussed earlier, that raises a material issue of fact that Defendant's action was a pretext for retaliation." Id. The magistrate judge thus recommended granting summary judgment to the defendant on the retaliation claim as well. Finally, the magistrate rejected the Commission's claim that the defendant had violated the ADA by failing to accommodate Netterville's disability on two different occasions. RE-T.3-28 (ROA-950). The magistrate noted, first, that the Commission had failed to show that Netterville was disabled, and thus that she was not entitled to an accommodation under the statute in any case. Id. The magistrate judge continued, however, that even if Netterville was disabled, she failed to meet her "burden to request reasonable accommodations." Id. (citing Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 735 n.4 (5th Cir. 1999), and Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 n.14 (5th Cir. 1997)). The magistrate rejected the Commission's contention that Netterville's first work release, which restricted her return to work to a "substation nearer to her home," should have been construed as a request for an accommodation, stating that the first release "did not disclose a disability or impairment of any kind," and "Netterville made no express request for an accommodation to work at another location." Accordingly, the magistrate judge stated that it "cannot fault Defendant for failing to engage in an interactive process under such a circumstance." Id. at 28-29 (ROA-950-51). With respect to the second work release, the magistrate found that, because it was "undisputed that Netterville was permitted to alternate reading and typing tasks and to nap during her lunch hour," Netterville's request for an accommodation was not in fact denied and, therefore, no remedy was available. Id. at 30 (ROA-952). In a one-page order, the district court adopted the magistrate judge's recommendations in all respects. RE-T.4 (ROA-1043). No additional reasoning was given. STANDARD OF REVIEW This Court reviews a district court's award of summary judgment de novo. Minter v. Great Am. Ins. Co., 423 F.3d 460, 464-65 (5th Cir. 2005). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 464. In assessing a motion for summary judgment, the Court views the evidence, as well as all reasonable inferences therefrom, in the light most favorable to the non-moving party. Id. at 465. SUMMARY OF ARGUMENT The district court erred in granting summary judgment to CPChem because there is sufficient evidence in the record to support a finding that Lorin Netterville was a qualified individual with a disability, and that CPChem denied her a reasonable accommodation for that disability. There is evidence that, during the relevant time period, Netterville was suffering from a severe bout of CFS, a physical impairment that substantially limited her in the major life activities of sleeping, caring for herself, and thinking or cognitive function. The district court erred in ruling that Netterville's CFS did not constitute an ADA disability because its symptoms relapsed and remitted over time or because they did not totally preclude Netterville from being able to perform her job. There is also sufficient evidence to support a finding that Netterville requested reasonable accommodations for her disability from CPChem, but that CPChem failed to engage in the ADA's mandatory interactive process in good faith with respect to either request. The district court also erred in granting summary judgment to CPChem because there is sufficient evidence in the record to support a finding that CPChem fired Netterville because she had a disability and because she requested a reasonable accommodation for a disability. Although CPChem argues that it terminated Netterville for falsification of answers on her post-offer medical questionnaire, there is evidence in the record from which a reasonable jury could find that Netterville did not in fact falsify her responses and that CPChem did not and could not have reasonably believed that she had done so. Based on this evidence, a reasonable jury could find that CPChem's proffered legitimate nondiscriminatory reason for terminating Netterville was a pretext for disability discrimination and retaliation for her requesting an accommodation. ARGUMENT I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO CPCHEM BECAUSE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT NETTERVILLE WAS A QUALIFIED INDIVIDUAL WITH A DISABILITY AND THAT CPCHEM DENIED HER A REASONABLE ACCOMMODATION. Section 102 of the ADA makes it unlawful for an employer to fail to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business or such covered entity." 42 U.S.C. § 12112(b)(5)(A). There is sufficient evidence in the record to support a finding that Netterville was a qualified individual with a disability who requested a reasonable accommodation, but was instead terminated after CPChem not only failed to engage in the interactive process required by the statute, but in fact actively began looking for ways to get rid of her as soon as it knew of her disability. A. There is sufficient evidence to support a finding that Netterville's CFS substantially limited three major life activities: sleeping, caring for herself, and thinking. The ADA defines "disability" as, in relevant part, "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. § 12102(2)(A). There is undisputed evidence in the record that Netterville has a physical impairment, CFS, within the meaning of the ADA. See 29 C.F.R. § 1630.2(h)(1) ("impairment" includes physiological disorders affecting the neurological system). Netterville's own extensive testimony about her symptoms, as well as Dr. Salvato's affidavit, are all consistent with Dr. Salvato's original diagnosis and subsequent rediagnosis of CFS. See RE-T.6 (ROA-1217-26) (Netterville affidavit); R.57 (ROA-871-922) (testimony at summary judgment hearing); R.46-Exh.22 (ROA-764-68) (Salvato affidavit). The Commission alleges that Netterville's CFS substantially limited three of her major life activities: sleeping, caring for herself, and thinking. There is sufficient evidence to support a finding that each of these three major life activities was substantially limited and that, accordingly, Netterville had a disability within the meaning of the ADA. Although this Court has not yet ruled expressly on whether sleeping is a major life activity within the meaning of the ADA, it has suggested that it could be. See Burch v. Coca-Cola Co., 119 F.3d 305, 316 n.9 (5th Cir. 1997) (suggesting that an alcoholic could demonstrate a substantially limiting impairment under the ADA if he could show, inter alia, that his "alcohol-induced inebriation . . . produced long-term insomnia"). Every other court to have reached the issue has held or recognized that sleeping is a major life activity under the ADA. See Carter v. Ridge, No. 07-20275, 2007 WL 4104349, at *3 n.2 (5th Cir. Nov. 19, 2007) (unpublished) (per curiam) (citing cases); see also, e.g., Nadler v. Harvey, No. 06- 12692, 2007 WL 2404705, at *5 (11th Cir. Aug. 24, 2007) (unpublished) (holding that sleeping is a major life activity under the Rehabilitation Act); Scheerer v. Potter, 443 F.3d 916, 919 (7th Cir. 2006) (recognizing sleeping as major life activity); Head v. Glacier NW, Inc., 413 F.3d 1053, 1060 (9th Cir. 2005) ("Sleeping is a major life activity."); Calero-Cerezo v. United States Dep't of Justice, 355 F.3d 6, 21 (1st Cir. 2004) (observing that sleeping has been recognized by "this court" as a major life activity); Felix v. New York City Transit Auth., 324 F.3d 102, 105 (2d Cir. 2003) (recognizing sleeping as a major life activity); EEOC v. Sara Lee Corp., 237 F.3d 349, 352-53 (4th Cir. 2001) (acknowledging sleeping as a major life activity); Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999) (holding that sleeping is a major life activity). We are aware of no court that has held otherwise. Viewing sleeping as a major life activity under the ADA is also consistent with the Supreme Court's, and this Court's, general case law offering guidance on the types of activities that should be considered major life activities under the statute. See Toyota Motor Manuf. Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) (defining "major life activities" as "those activities that are of central importance to daily life"); Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (rejecting argument that activities without a public or economic dimension should not be considered major life activities under the ADA); Jenkins v. Cleco Power LLC, 487 F.3d 309, 315 (5th Cir. 2007) ("Major life activities refers to those activities that are of central importance to most people's everyday lives."). There is sufficient evidence to support a finding that Netterville was substantially limited in sleeping. An individual is "substantially limit[ed]" in a major life activity if she is "(i) [u]nable to perform a major life activity that the average person in the general population can perform; or (ii) [s]ignificantly restricted as to the condition, manner or duration under which [she] 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 C.F.R. § 1630.2(j)(1). As this Court has observed, "[w]hether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact." Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995) (citing 29 C.F.R. § 1630.2(j)(2)). There is ample evidence in the record that, during the period at issue here, Netterville's CFS imposed severe limitations on her ability to sleep. There is evidence that, from the middle of 2002 through February 2003 when she was fired, Netterville was on a sleep cycle where, out of every month, she slept only one or two hours a night for two weeks and three or four hours a night, waking up every hour, for the remaining two weeks; and on one weekend day every month she would sleep for up to seventeen hours. RE-T.6-3, 7 (ROA-1219, 1223). Netterville also testified extensively about the impact that her impaired sleep had on her ability to function at work and in her daily life. This evidence is sufficient to support a finding that Netterville was "substantially limited" in sleeping by her CFS. See, e.g., Squibb v. Mem'l Med. Ctr., 497 F.3d 775, 784 (7th Cir. 2007) (limitations on sleeping must be "sufficiently 'prolonged, severe and long-term' to warrant classification as a disability"; noting that "[w]e have considered the extent to which a claimed lack of sleep contributes to a decreased functional level in determining whether the severity of the sleep deprivation at issue rose to the level of a disability") (quoting Burks v. Wisc. Dep't of Transp., 464 F.3d 744, 757 (7th Cir. 2006)); Nadler, 2007 WL 2404705, at *6 (requiring that "a plaintiff must present evidence, beyond vague assertions of 'a rough night's sleep' or a need for medication, 'that his affliction is worse than that suffered by [a] large portion of the nation's adult population'") (quoting Rossbach v. City of Miami, 371 F.3d 1354, 1358 (11th Cir. 2004) (internal citation and alterations omitted)). Netterville's sleep limitations are markedly more severe than those that the courts have held to be insufficient to constitute an ADA disability, or those as to which the courts held that the plaintiff adduced insufficient evidence. Compare, e.g., Carter, 2007 WL 4104349, at *3 (plaintiff not substantially limited in sleeping where physician testified that plaintiff was experiencing "sleep disturbance," defined as "less than normal sleep," and that he was getting less than five hours' sleep per night); Nadler, 2007 WL 2404705, at *1 (plaintiff not substantially limited in sleeping "when he sleeps an average of five and a half to six and a half hours per night and his sleep patterns do not differ significantly from those experienced by the general population"); Burks, 464 F.3d at 757 (plaintiff not substantially limited in sleeping where "[s]he stated that she has difficulty sleeping for more than three hours at a time, but provided no medical records or other evidence to demonstrate the effect of this situation on her ability to function in daily life"); Nuzum v. Ozark Auto. Distribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005) (individual whose "sleep was limited to two and a half hours at a time, for a total of four to five hours' sleep per night" has not shown substantial limitation in sleeping); Swanson v. Univ. of Cincinnati, 268 F.3d 307, 316 (6th Cir. 2001) ("While less than five hours sleep is not optimal, it is not significantly restricted in comparison to the average person in the general population."). See also Head, 413 F.3d at 1060 (plaintiff's testimony that, even on sleep medication, he "still periodically had serious problems," "usually was only able to sleep five or six hours a night," was "drowsy during the day due to the medications and lack of sleep," and "some nights . . . I could not get to sleep for hours or even at all" held to be sufficient to preclude summary judgment on substantial limitation in sleeping). The record also contains sufficient evidence to support a finding that Netterville was substantially limited in the major life activity of caring for herself. The Commission's regulations provide, and this Court has acknowledged, that caring for oneself constitutes a major life activity under the ADA. 29 C.F.R. § 1630.2(i); Hamilton v. SW Bell Tel. Co., 136 F.3d 1047, 1050 (5th Cir. 1998). Netterville's testimony in her affidavit and before the district court at the summary judgment hearing is sufficient to establish that her CFS substantially limited her ability to care for herself relative to the average person, in that she could not take a shower without resting for a significant amount of time thereafter, perform most other personal grooming tasks, dress herself without help, cook, shop for food, or wake up on time in the morning without her sister's help. Compare, e.g., Dutcher, 53 F.3d at 726 (finding no substantial limitation in normal activities of daily living where "[i]t is undisputed that [the plaintiff] can feed herself, drive a car, attend her grooming, carry groceries, wash dishes, vacuum, and pick up trash with her impaired hand"); Moody v. M.W. Kellogg Co., 176 F.3d 479, 1999 WL 153032, at *2-3 (5th Cir. Mar. 8, 1999) (unpublished) (finding that plaintiff with back injury who "does not play as many sports as she once did" and "has difficulty putting on pantyhose or fastening a dress in the back" but can otherwise care for herself is not substantially limited in caring for herself). Finally, there is sufficient evidence to support a finding that Netterville was substantially limited in her cognitive functioning (i.e., thinking, concentrating, and remembering). Although neither the regulations nor this Court's case law expressly recognize cognitive function, thinking, or concentrating as an ADA major life activity, the Commission's Compliance Manual provides that "[m]ental and emotional processes such as thinking [and] concentrating . . . are [] examples of major life activities." Section 902.3, Major Life Activities, 2 EEOC Compliance Manual (2007), http://www.eeoc.gov/policy/docs/902cm.html. Moreover, the majority of courts to have considered the issue have reached the conclusion that cognitive function, thinking, and/or remembering are ADA major life activities. See, e.g., Battle v. United Parcel Serv., Inc., 438 F.3d 856, 861 (8th Cir. 2006) (cognitive functions, thinking, concentrating); Head, 413 F.3d at 1061 (thinking); Calero-Cerezo, 355 F.3d at 21 (thinking and concentrating); Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 569 (3d Cir. 2002) (cognitive function); Nawrot v. CPC Int'l, 277 F.3d 896, 905 (7th Cir. 2002) (thinking); see also Sara Lee, 237 F.3d at 352-53 (analyzing thinking as major life activity); but see Pack, 166 F.3d at 1305 ("[C]oncentration is not itself a major life activity. Concentration may be a significant and necessary component of a major life activity, such as working, learning, or speaking, but it is not an 'activity' itself."). The evidence in the record would support a finding that, at the time of her requests for accommodation and her termination, Netterville's CFS substantially limited her cognitive functioning. Netterville's and Salvato's testimony about Netterville's cognitive symptoms - episodes of aphasia, inability to concentrate, forgetting how to execute routine tasks, falling asleep or losing focus while driving - is sufficient to support a finding that there was a substantial limitation on Netterville's ability to think relative to the average person. Compare, e.g., Battle, 438 F.3d at 862 (jury finding that plaintiff was substantially limited in thinking upheld where plaintiff's treating physician testified that plaintiff "thinks and concentrates at a laborious rate, has to spend significant extra time working on projects, and cannot think and concentrate about matters unrelated to work"); see also id. (noting that, while the physician "acknowledged that Battle is aided by psychiatric counseling and medication, he stated that Battle would continue to suffer such limitations in his ability to think and concentrate in the foreseeable future"); Head, 413 F.3d at 1061 (plaintiff with bipolar disorder adduced sufficient evidence of substantial limitation on thinking to survive summary judgment where he testified, inter alia, that he "could not stay focused on something for more than brief periods," "did not have much of a short-term memory at all," "had to be repeatedly reminded of appointments, or tasks I had to do," and could not look at written material "for too long" or "things just got jumbled in my mind and I would have to stop"); Gagliardo, 311 F.3d at 569-70 (plaintiff adduced evidence, including her own testimony and that of her treating physician, from which a reasonable jury could have found she was substantially limited in cognitive function by MS-induced fatigue). The district court found, citing no authority, that none of Netterville's impairments rendered her disabled because her CFS was "intermittent" and because her impairments were "short-lived, non-permanent, and non-severe." In so ruling, the district court erred, not only because Netterville's symptoms were severe enough to meet the standards in the case law cited above, but because the court misunderstood and misapplied the law's requirement of "permanence" in the context of a condition like CFS. The ADA's implementing regulations counsel consideration of the "duration or expected duration of the impairment" and the "permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment," in considering whether the impairment is substantially limiting. 29 C.F.R. § 1630.2(j)(2); see also 29 C.F.R. § 1630 app., § 1630.2(j) ("temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities"); Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998) (same). The regulations provide the following examples of temporary, non-disabling impairments: "broken limbs, sprained joints, concussions, appendicitis, and influenza." 29 C.F.R. § 1630 app., § 1630.2(j). See also Evans v. City of Dallas, 861 F.2d 846, 852 (5th Cir. 1988) (under Rehabilitation Act, knee injury requiring surgery does not constitute a disability due to "transitory nature of injury"). In contrast, courts have recognized that relapsing-remitting conditions like CFS, multiple sclerosis, or epilepsy may constitute ADA disabilities. See, e.g., Sara Lee, 237 F.3d at 352 (noting that "epilepsy is one of the disabling conditions that Congress contemplated when it passed the ADA", and holding that "[a]n intermittent manifestation of a disease must be judged the same way as all other potential disabilities"); 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"); Vande Zande v. Wisc. Dep't of Admin., 44 F.3d 538, 544 (7th Cir. 1995) ("[A]n 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."). In this case, the evidence, and the general consensus of the medical community, reflects that CFS is a chronic disease of indefinite duration for which there is no known cure, since its etiology is not understood. R.46-Exh.13 (ROA- 745); Centers for Disease Control & Prevention, CFS Basic Facts, May 9, 2006, http://www.cdc.gov/cfs/cfsbasicfacts.htm (observing that there is no known cure for CFS, and that recovery rates for CFS are "unclear," with improvement rates varying from 8% to 63%, and full recovery "rare" with an average of "only 5% to 10% sustaining total remission"). The chronic nature of CFS is thus much more akin to conditions like epilepsy and MS than it is to a broken leg or the flu. An impairment that substantially limits or is expected to substantially limit a major life activity and whose "duration is indefinite and unknowable or is expected to be at least several months" qualifies as a disability under the ADA. Section 902.4(d), Duration and Impact of Impairment, 2 EEOC Compliance Manual (2007), http://www.eeoc.gov/policy/docs/902cm.html; see Shannon v. Henderson, 275 F.3d 42, 2001 WL 1223633, at *7 (5th Cir. Sept. 25, 2001) (per curiam) (unpublished) (analyzing extent of limitations during six-month period). Moreover, the relevant time period for assessing the existence of a disability is the time of the adverse employment action. See Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797, 802 (8th Cir. 2006); Swanson, 268 F.3d at 316; Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir. 2000). The record in this case reflects that, during the time period at issue in this case, Netterville's CFS symptoms began to manifest themselves in the summer of 2002 and continued through and after her termination in February 2003; far from being "intermittent," her flare-up in this case lasted continuously for a minimum of six months, if not longer. Thus, the district court's finding that Netterville's CFS symptoms were too "short-lived" or "non- permanent" to constitute an ADA disability, based on the nature of her condition, was erroneous. Insofar as the district court rested its ruling that Netterville was not disabled on the fact that her CFS symptoms were ultimately responsive to medication, this was also legally erroneous because Netterville did not begin to respond significantly to treatment until after the time frame at issue here. As the Supreme Court held in Sutton v. United Air Lines, 527 U.S. 471, 482 (1999), "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures - both positive and negative - must be taken into account when judging whether that person is 'substantially limited' in a major life activity and thus 'disabled' under the Act." However, the record reflects that Netterville's symptoms had responded only marginally, or not at all, to treatment until she went out on the two weeks' medical leave in February 2003; it was only then that changes were made to her treatment regimen, and she had just begun her increased dosages of antidepressants and sleep medication and the GLA-ATP injections. R.57-29-33 (ROA-899-903). She had barely begun to feel any improvement, and had been back at work for only a few days, when CPChem fired her. Accordingly, during the period in question, Netterville had barely experienced any improvement in her symptoms. Finally, the district court erred insofar as it weighed against Netterville her ability to do her job while she was experiencing the symptoms of CFS. As the Supreme Court has observed, the ADA "addresses substantial limitations on major life activities, not utter inabilities," and "[w]hen significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable." Bragdon v. Abbott, 524 U.S. 624, 641 (1998); 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."). Moreover, as the Supreme Court pointed out in Toyota, the assessment of whether an individual is disabled is to be made not just with respect to the workplace, but by looking at the effect of the impairment on the individual's entire life. See Toyota, 534 U.S. 184, 201 (2002). There is substantial evidence that Netterville's impairment made it more difficult for her to do her job and to do it in the way she (and, doubtless, her employer) would have preferred. R.57-26-27 (ROA-896-97). If the Commission had in fact made a showing that Netterville's symptoms entirely precluded her from doing her job, the court - correctly - would have found that Netterville was not qualified for the position she held. See 42 U.S.C. § 12111(8) (defining "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires") (emphasis added). For a court to require an individual with an impairment to be capable of performing her job in order to find her qualified and at the same time require her to show that she cannot perform her job to establish substantial limitation would vitiate the very protections the ADA is supposed to provide. See Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 24 (1st Cir. 2002) (declining to adopt a rule that would "place deserving ADA plaintiffs in an unenviable 'catch-22:' in order to demonstrate that she is disabled, the plaintiff also would have to demonstrate why she is unqualified to do the job to which she aspires."). B. There is sufficient evidence to support a finding that CPChem failed to provide a reasonable accommodation for Netterville's known physical limitations. The ADA provides that the term "discriminate" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A). The implementing regulations further define "reasonable accommodation," in relevant part, as "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(1)(ii). See also Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996) (observing that a "reasonable accommodation" is "'a method of accommodation that is reasonable in the run of cases'" (quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993), cert. denied, 511 U.S. 1030 (1994) (emphasis in original))). As this Court has observed, "[i]n general, 'it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed.'" Rizzo v. Children's World Learning Ctrs., Inc., 173 F.3d 254, 266 (5th Cir. 1999) (quoting 29 C.F.R. § 1630 app., § 1630.9 (1995)). When an employee requests a reasonable accommodation, she "must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition"; however, she "may use 'plain English' and need not mention the ADA or use the phrase 'reasonable accommodation.'" See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), at 8.<5> In this case, Netterville requested reasonable accommodations from CPChem on two different occasions: on or about February 18, 2003, when she attempted to return to work with Dr. Salvato's first note, and on or about February 21, 2003, when she presented Thurman with Dr. Salvato's release note of February 20. Both notes constituted requests for reasonable accommodations under the ADA because they clearly let CPChem know that Netterville needed modifications at work for reasons related to her CFS, a medical condition. An employee's request for an accommodation "triggers the employer's obligation to participate in the interactive process of determining one." Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). This Court has described the interactive process as one in which "the responsibility for fashioning a reasonable [accommodation] is shared between the employee and employer. . . . Fitting these two halves into a whole, the employer and employee can work together to determine how best to restructure the employee's duties and work place in a manner that accommodates the employee's limitations but does not pose an undue hardship on the employer." Rizzo, 173 F.3d at 266. "[W]hen an employer's unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA." Cutrera v. Bd. of Supervisors of La. St. Univ., 429 F.3d 108, 112 (5th Cir. 2005); Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999). Thus, it was CPChem's responsibility to engage in a dialogue with Netterville and find out what she needed - not to refuse to communicate with her and simply fire her shortly after she made her need for accommodation known. See, e.g., Cutrera, 429 F.3d at 112 ("the employee's initial request for an accommodation triggers the employer's obligation to participate in the interactive process"); Jenkins, 487 F.3d at 316 (citing cases holding that employer has an affirmative duty to engage in good-faith interactive process with employee seeking accommodation). CPChem argued before the district court that it did grant Netterville's second accommodation request by tacitly allowing her to take naps at lunch and alternate typing and reading tasks for the few days after she returned to work and before she was fired. However, we note that, based on the CPChem's refusal to discuss the matter with Netterville at all, and its subsequent termination of her employment only a few days later, it is far from clear whether Netterville's superiors would have allowed her to continue napping at lunch and alternating tasks on an ongoing basis. Indeed, this is precisely why, as this Court stated aptly in Rizzo, 173 F.3d at 266, the interactive process envisioned under the ADA is a collaborative one: it should involve the employer and employee working together to find a reasonable accommodation that meets both parties' needs, not a guessing game as to what one side or the other intends. In failing to engage in that interactive process in good faith with Netterville, CPChem violated the ADA. II. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT CPCHEM FIRED NETTERVILLE BECAUSE SHE HAD A DISABILITY AND SHE REQUESTED REASONABLE ACCOMMODATION. The ADA makes it unlawful to terminate an employee because she has a disability. 42 U.S.C. § 12112(a) ("No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees.") The statute also makes it unlawful to "interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by the ADA." 42 U.S.C. § 12203(b). Accordingly, CPChem violated the ADA if it fired Netterville because she had a disability or because she requested a reasonable accommodation.<6> The district court dismissed the Commission's challenge to Netterville's termination on the ground that there was insufficient evidence that the company's nondiscriminatory explanation for its decision to fire Netterville was pretextual. CPChem's proffered explanation for terminating Netterville was that she "falsified" her post-offer medical questionnaire by responding "no" to either of two questions to which, based on her history of CFS, she should have responded "yes": the questions asking about a history of "anemia or other blood condition/blood transfusion" and "excessive fatigue with work or exercise." Contrary to the district court's ruling, there was sufficient evidence in the record to support a finding that CPChem's proffered explanation was "merely a pretext for unlawful discrimination." Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 511 (5th Cir.), cert. denied, 540 U.S. 815 (2003). First, a jury could find that CPChem either knew or should have known that Netterville's responses to both questions on the questionnaire, as of the time she was answering them in April 2001, were truthful. CFS is not in fact considered a "blood condition," and we are aware of no medical evidence or opinion whatsoever that it is. As to the "excessive fatigue with work or exercise" question, as Netterville herself explained, her experience with CFS was that it resulted in fatigue nearly all the time, with no particular reference or relevance to work or exercise at all. RE-T.6-2 (ROA-1218). A jury also could find that Netterville's other explanation for her "no" response to the "excessive fatigue" question - that, since she had only had the one incidence of CFS in 1987 and none since, she had begun to question whether she had ever had it at all - did not amount to deliberate falsification, even if the reasoning it employed was ultimately flawed. Id. To be sure, as CPChem argued below, a finding that an employer relied on a good faith, but mistaken, belief that an employee violated a work rule would not support a finding of pretext. See, e.g., Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) ("Appellant's assertion that we must assess the truth of the interview summaries to determine Appellee's reasonableness in relying on them does not create a fact issue as to pretext; Appellee is entitled to be unreasonable so long as it does not act with discriminatory animus. If Appellant intends to show that the explanation is so unreasonable that it must be pretextual, it is Appellant's burden to proffer evidence creating a fact issue regarding reasonableness."). However, viewing the evidence in context and in the light most favorable to the Commission, as required on summary judgment, a jury could find that CPChem's "falsification" rationale is, as this Court suggested in Sandstad, "so unreasonable that it must be pretextual." To begin with, what happened here is far from a clear case of falsification; the questionnaire did not expressly ask about CFS, about any condition related to CFS (such as fibromyalgia) or even about any general terms that would clearly describe symptoms of CFS without medical terminology, such as "severe or unexplained fatigue." The record in this case also reflects that Zamboras, the company nurse, never said anything about whether the fatigue question should have drawn a "yes" response from Netterville; she only told Rugeley that the "blood disorders" question should have drawn a "yes" response, which was medically erroneous. RE-T.11 (ROA-741). Apparently, somewhere along the way, someone at CPChem decided that Netterville should have answered "yes" to the "fatigue with work or exercise" question as well, but there is no evidence in the record that the medical department ever said that was the case with respect to CFS in general or Netterville in particular. Thus, insofar as CPChem may seek to claim that it was appropriate for it to rely on the recommendation of its medical department in concluding that Netterville's answers on the questionnaire were untruthful, it is striking to note that all the record reflects is that the medical department erroneously told HR that Netterville should have answered "yes" to the "blood disorders" question, not the "fatigue with work or exercise" question. Given that there was significant confusion over whether Netterville had in fact ever falsified anything at all, CPChem's decision to fire her becomes even more suspicious when viewed in light of the circumstances in which it was made. When Netterville told Thurman in February 2003 that she was experiencing symptoms of CFS and needed to take two weeks' medical leave to recuperate and regain her strength, the company's immediate response was to go straight to the medical questionnaire she filled out back in 2001 and scour her responses to see if any of them might be construed as false, and thus constitute grounds for immediate termination under CPChem's discipline policy. No sooner did Netterville return from her medical leave, and make requests for accommodations, than she was terminated for "falsifying" a form as to which her answers were more than arguably correct, with no follow-up questions directed to her treating physician and no effort made to clarify what her needs were. Indeed, CPChem appears to have expended far more effort in parsing whether her answers to the questionnaire could be construed as falsifications than it did in determining what it could do to meet the requirements her treating physician set out in her accommodation requests. A reasonable jury could find that the entire course of CPChem's response to Netterville's disclosure of her CFS and her requests for accommodations based on her CFS was not based on any falsifications on her questionnaire but was, in fact, a pretext for discriminating against her on the basis of her disability and because she requested an accommodation. CPChem also relied on the fact that they had previously discharged two other individuals for falsifying documents, one of them for falsifying a medical questionnaire, in establishing that this was their regular practice with respect to falsification cases and that their treatment of Netterville was not a pretext for discrimination. However, a reasonable jury could find that these cases were significantly different from Netterville's, in that one individual actually stole money from the company by claiming to have lost a paycheck when he had not, and the other admitted that she deliberately concealed a medical condition that she knew she had at the time she filled out the questionnaire because she knew that, if she disclosed it, she might not be hired. RE-T.16-99-103 (ROA-704-05). Thus, when the evidence in the record is viewed in the light most favorable to Netterville, a reasonable jury could find that CPChem's proffered rationale for terminating her - that she falsified an answer on her medical questionnaire in 2001 - was in fact a pretext for disability discrimination. The district court erred in granting summary judgment to the defendant on this claim. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. 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. 32(a)(7)(B) because it contains 12,220 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 2003 in Times New Roman 14 point. Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: December 20, 2007 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and six hard copies of the foregoing brief, plus one electronic copy in PDF format on a CD, with this Court this 20th day of December, 2007, by overnight delivery, postage pre-paid. I also certify that I served two hard copies of the foregoing brief, plus one electronic copy in PDF format on a CD, this 20th day of December, 2007, by overnight delivery, postage pre-paid, to the following counsel of record: Counsel for Defendant: Scott Robert McLaughlin, Esq. Shook, Hardy & Bacon JPMorgan Chase Tower 600 Travis St., Ste. 1600 Houston, TX 77002 (713) 227-8008 _________________________________ Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov *********************************************************************** <> <1> "RE-T.[#]" refers to tabbed material in the EEOC's Record Excerpts. "R.[#]" refers to the district court docket entry. "ROA-[#]" refers to the paginated, certified Record on Appeal. <2> For the most part, the parties and the witnesses in this case refer to Netterville's condition as Chronic Fatigue Syndrome or CFS. An alternative name for the same condition is Chronic Fatigue and Immune Dysfunction Syndrome, or CFIDS, which is used in some of the literature and occasionally in the record in this case. See, e.g., Massachusetts CFIDS Ass'n, Chronic Fatigue & Immune Dysfunction Fact Sheet, at http://www.masscfids.org/html/CFIDS_Fact_Sheet_2002.htm (last visited Nov. 6, 2007). For the purpose of this discussion, and for consistency's sake, we will refer to the condition at issue here as Chronic Fatigue Syndrome or CFS, except where quoting directly from material that does otherwise. <3> Borths testified that he would consider hiring someone with CFS, including someone for a secretarial position. R.46-Exh.3-75 (ROA-698). <4> This affidavit, RE-T.6, appears twice in the district court record: once as an exhibit to the EEOC's opposition to CPChem's motion for summary judgment, R.46-Exh.5, with the last two pages missing, and again as an exhibit to the EEOC's opposition to CPChem's subsequent motion for attorney's fees, R.70-Exh.1, with all ten pages present. As trial counsel explained to the district court, R.70-5 n.2 (ROA-1206), the missing two pages in the earlier version in the record are due to a scanning error in the district court clerk's office; both the magistrate judge and the defendant had full and complete copies of the ten-page affidavit at the time of the summary judgment hearing. All ten pages are thus properly part of the summary judgment record in this case. <5> Available at http://www.eeoc.gov/policy/docs/accommodation.html. <6> We note that Netterville's requests for reasonable accommodations constitute protected activity under the ADA, regardless of whether this Court should find that Netterville is disabled, based on the broad statutory language of the ADA's antiretaliation provisions that cover "any individual," as compared with the antidiscrimination provisions' limited coverage of "qualified individual[s] with disabilit[ies]" in 42 U.S.C. § 12112(a). Every court of appeals to consider this issue has reached this conclusion. See, e.g., Bryson v. Regis Corp., 498 F.3d 561, 577 (6th Cir. 2007) (in context of plaintiff claiming retaliation for seeking accommodation, holding that "[a] plaintiff may prevail on a disability-retaliation claim 'even if the underlying claim of disability fails'") (internal citation omitted); Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007) (observing that "[r]equesting an accommodation is protected conduct for purposes of the ADA's retaliation provision," and that "[a]n ADA plaintiff may assert a claim for retaliation even if she fails to succeed on a disability claim"); Cassimy v. Bd. of Educ., 461 F.3d 932, 938 (7th Cir. 2006) (finding that non-disabled employee's good-faith request for an accommodation was statutorily protected conduct); Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003) (holding that non-disabled plaintiff could state claim for retaliation based on seeking accommodation because "[a]n individual who is adjudged not to be a 'qualified individual with a disability' may still pursue a retaliation claim under the ADA . . . as long as she had a good faith belief that the requested accommodation was appropriate") (internal citations and quotation marks omitted); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (10th Cir. 1998) (plaintiff seeking accommodation of back injury need only have "good faith, objectively reasonable belief that he was entitled to those accommodations under the ADA"); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 502 (3d Cir. 1997) ("Unlike a plaintiff in an ADA discrimination case, a plaintiff in an ADA retaliation case need not establish that he is a 'qualified individual with a disability.'") (emphasis in original).