IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________________________________ No. 08-4675 _______________________________________________________________ JEANETTE COLWELL, Plaintiff-Appellant, v. RITE AID CORPORATION, d/b/a RITE AID, Defendant-Appellee. ________________________________________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania _________________________________________________________________ BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT _________________________________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E, Fifth Floor Washington, D.C. 20507 (202) 663-4731(w); (202) 663-7090 (fax) TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . 2 2. District Court Decision. . . . . . . . . . . . . . . . . . . . 8 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 I. The District Court Properly Denied Summary Judgment on the Issue of Whether Colwell's Monocular Vision Is a Disability. . . . . . . . . . . . 10 II. Rite Aid Was Not Entitled to Summary Judgment on Colwell's Failure to Accommodate Claim Because a Reasonable Jury Could Conclude that a Schedule Change to Day Shifts Can Be a Reasonable Accommodation under the ADA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 III. The District Court Should Not Have Granted Summary Judgment on Colwell's Constructive Discharge Claim Because Triable Issues of Fact Exist as to Whether Rite Aid's Failure to Accommodate Colwell Created an Intolerable Condition of Employment. . . . . . . . . . . . . . . . . . 25 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Bull v. Coyner, 2000 WL 224807 (N.D. Ill. Feb. 23, 2000). . . . . . . . . . . . . . 21, 22, 23 Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . 26 Capobianco v. City of New York, 422 F.3d 47 (2d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 11 Colwell v. Rite Aid Corp., 2008 WL 4748226 (M.D. Pa. Oct. 27, 2008). . . . . . . . . . 2, passim Conneen v. MBNA America Bank, N.A., 334 F.3d 318 (3d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . 13 Connors v. Chrysler Fin. Corp., 160 F.3d 971 (3d Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . 25 Dodaro v. Acme Markets, 2006 WL 776976 (D.N.J. Mar. 27, 2006). . . . . . . . . . . . . . . . . . 29 Duffy v. Paper Magic Group, Inc., 265 F.3d 163 (3d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . 26 Emory v. AstraZeneca Pharms. LP, 401 F.3d 174, 180 n.4 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . 11 Eshelman v. Agere Systems, Inc., 554 F.3d 426, 434 (3d Cir. 2009). . . . . . . . . . . . . . . . . . . . . . 11 Gile v. United Airlines, Inc., 213 F.3d 365 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 17 Goss v. Exxon Office Sys. Co., 747 F.2d 885 (3d Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . 26 Johnson v. Shalala, 991 F.2d 126 (4th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . 29 Kautz v. Met-Pro Corp., 412 F.3d 463 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 9 Keelan v. Majesco Software, Inc., 407 F.3d 332 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 28 Laresca v. AT&T, 161 F.Supp.2d 323 (D.N.J. 2001). . . . . . . . . . . . . . . . . . . . 20, 22 Livingstone v. Fred Meyer Stores, Inc., 567 F.Supp.2d 1265 (D. Or. 2008). . . . . . . . . . . . . . . . . . . . . . 21 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . 28 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Pagonakis v. Express, LLC, 534 F.Supp.2d 453 (D. Del. 2008), rev'd, No. 08-1753, 2009 WL 541266 (3d Cir. Mar. 5, 2009). . . . . 21, 22, 23 Pagonakis v. Express, LLC, No. 08-1753, 2009 WL 541266 (3d Cir. Mar. 5, 2009). . . . . . 22, 23, 24, 26 Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27 Salmon v. Dade County Sch. Bd., 4 F.Supp.2d 1157 (S.D. Fla. 1998). . . . . . . . . . . . . . . . . . . . . .21 Schwarz v. Northwest Community Coll., 881 F.Supp. 1323 (N.D. Iowa 1995). . . . . . . . . . . . . . . . . . . . 29 Turner v. Hershey Chocolate U.S., 440 F.3d 604 (3d Cir. 2006). . . . . . . . . . . . . . . . . . . . 13, 14, 19 U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . 13, 22 Williams v. Philadelphia Housing Auth., 380 F.3d 751 (3d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . 10 STATUTES, REGULATIONS, AND RULES Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12101(a)(7). . . . . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. § 12101(b)(1). . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12111(9)(A). . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 12111(9)(B). . . . . . . . . . . . . . . . . . . . . . 13, 16 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . 1, 10, 13, 15, 29 42 U.S.C. § 12112(d). . . . . . . . . . . . . . . . . . . . . . . . 30 H.R. Rep. No. 101-485(II) (1990). . . . . . . . . . . . . . . . . . . . 16, 17 ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). . . . . . . . . . . . . . . . 1 § 2(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 C.F.R. § 1630.2(j)(ii). . . . . . . . . . . . . . . . . . . . . . . . 11 29 C.F.R. § 1630.2(o)(1)(ii). . . . . . . . . . . . . . . . . . . . . . . . 15 29 C.F.R. § 1630.2(o)(1)(iii). . . . . . . . . . . . . . . . . . . . . 16, 21 29 C.F.R. § 1630.2(o)(2)(ii). . . . . . . . . . . . . . . . . . . . . . . . 16 29 C.F.R. Pt. 1630, App. § 1630.2(o). . . . . . . . . . . . . . . . . . . . 13 29 C.F.R. Pt. 1630, App. § 1630.9. . . . . . . . . . . . . . . . . .16, 18, 19 SECONDARY AUTHORITY EEOC: Technical Assistance on Title I of ADA, 8 FEP Man. (BNA) 405. . . 17 EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html. . . . . . . . . . . . 17 Express's Brief on Appeal, 2008 WL 5586165 (3d Cir. filed Aug. 26, 2008). . . . . . . . . . . . . . . .24 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC" or "Commission") is the agency charged with the interpretation and enforcement of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (2008) ("ADA"), and other federal anti-discrimination statutes. Recently, Congress passed the ADA Amendments Act of 2008 ("ADAAA") "[t]o restore the intent and protections of the Americans with Disabilities Act of 1990." Pub. L. No. 110-325, 122 Stat. 3553 (2008). As the recent amendments confirm, Congress intended that the ADA "'provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities'" and "broad coverage." Id. at § 2(a)(1), 122 Stat. at 3553 (quoting 42 U.S.C. § 12101(b)(1)). To effectuate its mandate that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability in regard to ... terms, conditions, and privileges of employment," 42 U.S.C. § 12112(a), Congress specified that "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" is a form of unlawful discrimination. 42 U.S.C. § 12112(b)(5)(A). This appeal raises important issues about coverage of a person with monocular vision, the reasonableness of a scheduling accommodation that enables a qualified individual with a disability to work, and whether the denial of an accommodation can create such an intolerable work condition that it could lead to a constructive discharge. Because of the importance of these issues to the enforcement of the ADA, the Commission offers its views to the Court. STATEMENT OF THE ISSUES<1> 1. Whether plaintiff's evidence of visual restrictions caused by her monocular vision was sufficient to preclude summary judgment on the ADA coverage issue. 2. Whether a shift change from night to day assignments requested by an employee with a vision disability is a reasonable accommodation under the ADA. 3. Whether the denial of an accommodation that would eliminate a safety risk caused by a disability can create an intolerable work condition that would force a reasonable person to quit. STATEMENT OF THE CASE 1. Statement of the Facts In April 2005, Jeanette Colwell applied for a part-time position with Rite Aid's Old Forge, Pennsylvania store. Colwell v. Rite Aid Corp., 2008 WL 4748226, Slip Op. at *1 (M.D. Pa. Oct. 27, 2008) ("Slip Op."). Rite Aid hired Colwell to work as a part-time cashier and told her that she could be scheduled for days, nights, and weekends, depending on the store's needs. R.25, Att.2-Ince Dep. at 32- 33; Att.3-Chapman Dep. at 24. Starting April 25, 2005, Colwell worked different shifts, but mostly weekday evenings from 5 p.m. to 9 p.m. R.25, Att. 4, Colwell Dep. at 120; R.29, Def. Stat. of Undisputed (UD) Facts at 3¶6. The evening shifts required Colwell to drive when it was dark "in order to arrive at work in the evenings" Slip Op. at *1, and of course to return home at the end of her shift. Public transportation was not an option because there were no taxis and the bus rides ended around 6 p.m. R.25, Att. 4-Colwell Dep. at 159; Att. 2-Ince Dep. at 53. As a cashier, Colwell was regularly recognized for providing good customer service. Slip Op. at *1. Her personnel file had no negative documentation or disciplinary actions. R.25, Att.2-Ince Dep. at 41-42, 57. In fact, Chapman testified that Colwell "was a good worker." R.25, Att.3-Chapman Dep. at 35. In the summer of 2005, Colwell's physician diagnosed Colwell with retinal vein occlusion and glaucoma in her left eye. Slip Op. at *1. These conditions caused Colwell to become blind in her left eye. Id. Since going partially blind, Colwell has experienced difficulty driving back and forth to work at night. R.25, Att.4-Colwell Dep. at 85-86. When lights came at her, she would get confused. She could not tell if there was a car next to her and she did not know where to go. Sometimes she would have to park or not drive at all. Id. at 86. Additionally, she experiences painful pressure in her left eye and frequently uses prescription eye drops to relieve it. Slip Op. at *1; R.25, Att.4-Colwell Dep. at 73. Although Colwell's partial blindness did not affect her ability to perform her job, it substantially restricted her ability to see and thus drive at night. Id. at *1, *6. In mid to late September 2005, Colwell informed Chapman of her vision issue and that she had difficulty driving at night. Slip Op. at *2; R.25, Att.4- Colwell Dep. at 136; R.29, Def. Stat. of UD Facts at 4¶18. Colwell requested a change in hours but Chapman responded that she could not give Colwell exclusively daytime hours. Id. at *2; R.25, Att.4-Colwell Dep. at 131; R.29, Def. Stat. of UD Facts at 4-5¶19. Chapman continued to schedule Colwell to work nights with a day shift "here and there." R.25, Att.3-Chapman Dep. at 16. However, one evening when Colwell came in to work, Chapman told her "do you know that if you drive at night, you're driving at your own risk, that we're not responsible? And [Colwell] said yeah, I realize that." R.25, Att. 4, Colwell Dep. at 39, 157-58. Dissatisfied with Chapman's continued assignment of night schedules, Colwell called Ken Karasek, her union representative, and asked him for help in obtaining daytime work. Slip Op. at *2. She told Karasek that Chapman "wouldn't budge with giving her days" and she couldn't drive at night. R.25, Att.4-Colwell Dep. at 141-42. However, she needed the job and she needed to work days. Id. at 140. Karasek expressed concern and agreed to speak with Chapman. Id. at 142. To convince Karasek of her limitation, Colwell had her doctor fax a note to him advising Colwell against driving during the night hours. Id. at 132-33. The doctor's note was dated September 29, 2005. R.25, Att.1-Dr. Jordan's Note. Karasek called Chapman and asked her if she could give Colwell day shifts. R.25, Att.3-Chapman Dep. at 23-24. Chapman told Karasek that she could not give Colwell all day shifts, but might give her a day "here and there." Id. at 16, 24. For the week of October 2-8, 2005, Chapman scheduled Colwell to work the evening shifts on October 3, 5, and 7. In that same week, Colwell also worked two day shifts: 9 a.m. to 3 p.m. on October 4 and 10 a.m. to 2 p.m. on October 6. R.41, Att.2-Rite Aid Work Schedule ending October 8, 2009; R.25, Att.3-Chapman Dep. at 43. Karasek called Colwell back and told her he did not get anywhere with Chapman so he was going to schedule a meeting with her and Chapman. R.25, Att.4-Colwell Dep. at 35, 143. On or about October 7, Karasek faxed Colwell's doctor's note to Chapman. Slip Op. at *2; R.25, Att.3-Chapman Dep. at 47. Karasek "never showed up" for the meeting and it was cancelled.<2> Id. at *2; R.25, Att.4-Colwell Dep. at 143. On or about October 10, Karasek told Colwell he would reschedule the meeting, but he never called her again. R.25, Att.4-Colwell Dep. at 143, 145. After receiving the faxed doctor's note, Chapman talked to Colwell about her eye condition and need for day shifts. R.25, Att. 3-Chapman Dep. at 14, 15. Colwell told Chapman that she could not drive at night because it was dangerous. R.25, Att.4-Colwell Dep. at 128-30, 135. Chapman allegedly stated that "it would not be fair to the other people and when you filled your application out, you [stated] . . . that you'd be able to work nights, and that's why you were hired." R.25, Att. 4- Colwell Dep. at 131. Colwell replied that a family member could drive her when she had to work evenings. Slip Op. at *2. But she believed she also made clear that she "could not depend on other people all the time." R.25, Att.4-Colwell Dep. at 146. Chapman continued to schedule Colwell for evening work. Slip Op. at *2; R.29, RA's Statement of UD Facts at 5¶23. For the week of October 9-15, 2005, Chapman scheduled Colwell to work evening shifts on October 11 and 13 and gave her the weekend off. R.41, Att.2- Rite Aid Work Schedule ending October 15. On October 11, 13 and the weekend, several employees were scheduled for day shifts, including Sally Hines, a part-time cashier, and cashiers Lindsay Hall, Donielle Young, and Johanna Kane. Id. On October 12, 2005, Colwell left a resignation letter on Chapman's desk. R.25, Att.4-Colwell Dep. at 25. The letter indicated that Colwell was giving two weeks notice because she had been subjected to unfair treatment and prejudice. Id. at 25, 150; R.41, Att. 1. Colwell explained that, although no one had threatened her with termination, id. at 156, she felt "inadequate" and "too stressed there" because of Chapman's mistreatment and refusal to address Colwell's need for a different work schedule. Id. at 185; R.40, Pl. Answer to Def. Disputed Facts at 7¶29. Further, she was "frustrated and aggravated" when the union failed to assist her and her "nerves couldn't stand anymore." Id. at 37, 145. Finally, although she had never missed work due to an inability to get to work, Colwell testified that "having to work at night created a hardship for her and the family members who had to drive her to work." Id. at 159. During the two-week period, Rite Aid did not respond to Colwell's resignation note. R.25, Att.4-Colwell Dep. at 26, 150. Chapman said she never met with Colwell because Colwell was convinced "something was done wrong to her[.]" R.25, Att.3-Chapman Dep. at 62, 65. Colwell said that she thought Chapman would call her into the office and say, "I got your two week notice, do you want to talk about it,... could we work this out[?] Nothing was ever mentioned. In fact, it was a week later and she said, 'what day are you leaving?' and I told her and that was it." R.25, Att.4-Colwell Dep. at 65-66. For the week of October 16-22, Chapman scheduled Colwell to work 5 p.m. to 9 p.m. on October 18 and 19, and 1 p.m. to 5 p.m. on October 22. R.25, Att.3-Chapman Dep. at 45. For the following week, Chapman scheduled Colwell to work one shift from 5-9 p.m. R.25, Att.3-Chapman Dep. at 46; Att. 4, Colwell Dep. at 183.<3> As with the prior week, several cashiers were scheduled for day shifts during this time. See generally R.41, Att.2-Rite Aid Work Schedules. In 2007, Colwell filed a lawsuit alleging discrimination and retaliation in violation of the ADA and Pennsylvania Human Relations Act and age discrimination under the ADEA. The parties filed cross-motions for summary judgment. 2. District Court Decision The district court granted Rite Aid's motion for summary judgment. In pertinent part, the court decided that Colwell's monocular vision constituted a disability. Slip Op. at *5-*6. However, it ruled that Colwell did not suffer an adverse employment action because she was not constructively discharged. The court reasoned that Rite Aid did not threaten Colwell with termination, encourage her to resign, reduce her pay or benefits, demote her, transfer her to a less desirable position, alter her job responsibilities, or declare her work performance as unsatisfactory. Id. at *6-*7. The court also found that she was not subjected to a continuous pattern of harassment that would force a person to quit. Finally, it noted that Colwell quit shortly after she realized she was not scheduled for day work and did not fully utilize available grievance options such as rescheduling the meeting with the union representative, invoking the company's grievance procedure, or appealing to higher levels of management. Hence, the court held that Colwell's constructive discharge claim failed. Id. at *7. The court also rejected Colwell's failure to accommodate claim. It ruled that Colwell's requested accommodation of daytime hours because she could not drive at night was actually "an accommodation that facilitates her commute to work." Slip Op. at *8. In the court's view, the ADA's accommodation requirement "is designed to cover barriers to an employee's ability to work that exist inside the workplace, not difficulties over which the employer has no control." Id. Since Colwell's accommodation "had nothing to do with the work environment or the manner or circumstances under which she performed her work," id. at *9, the court believed that to require accommodation, would expand the employer's responsibility beyond the ADA's intention. Id. ARGUMENT This ADA case alleging failure to accommodate and constructive discharge was decided on summary judgment. This Court reviews the district court's grant of summary judgment de novo, examining the facts in a light most favorable to the non-moving party and drawing all reasonable inferences in its favor. Kautz v. Met- Pro Corp., 412 F.3d 463, 466 (3d Cir. 2005). The moving party bears the burden of proving that no genuine issue of material fact exists, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10 (1986), and this Court resolves all doubts against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In short, at the summary judgment stage, "the judge's function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Id. at 249. I. The District Court Properly Denied Summary Judgment on the Issue of Whether Colwell's Monocular Vision Is a Disability An employer is only required to provide reasonable accommodations to individuals with disabilities who are otherwise qualified to perform the essential functions of their jobs. See 42 U.S.C. § 12112(b)(5)(A). Whether an individual has a disability requires proof that she is substantially limited in a major life activity, which is a question of fact. Williams v. Philadelphia Housing Auth., 380 F.3d 751, 763 (3d Cir. 2004). In this case, Rite Aid argued that it was not obligated to accommodate Colwell because "the only limitation caused by her blindness was the inability to drive at night," which "courts have found . . . does not constitute a disability." Slip Op. at *4. The district court properly disagreed that Colwell's evidence was so limited, Slip Op. at *5-*6, and its decision to deny summary judgment on this issue should be upheld on appeal. An appropriate consideration of the facts establishes that a jury could conclude that Colwell has a disability. See Capobianco v. City of New York, 422 F.3d 47, 59 (2d Cir. 2005) (deciding that a reasonable jury could find that the inability to drive, walk, run, bike, and engage in other outdoor activities at night or in dim light due to night blindness "is not just a difference in sight but a severe restriction" on the ability to see). Colwell was completely blind in her left eye, R.25, Att.4- Colwell Dep. at 85, and thus incapable of seeing in the same manner as the average person in the general population who has eyesight in both eyes. 29 C.F.R. §1630.2(j)(ii) (defining substantial limitation)<4>; cf. Capobianco, 422 F.3d at 59 (acknowledging that, unlike the plaintiff who had night blindness, "the average person can see and function at night and in dim light"). However, the Supreme Court has observed that monocular vision is not a per se disability, and that the determination of substantial limitation must be made on an individualized basis. Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999). Therefore, the district court properly considered variables enumerated by the Supreme Court such as "the degree of visual acuity in the weaker eye, the age at which [she] suffered . . . vision loss, the extent of [her] compensating adjustments in visual techniques, and the ultimate scope of the restrictions on [her] visual abilities." Id. In addition to having no visual acuity in her left eye, evidence reveals that Colwell was in her mid 60's when she became blind, and that she engaged in no compensating adjustments. R.25, Att.4-Colwell Dep. at 121. With respect to her visual limitations, Colwell testified that when lights came at her, she would become confused and could not tell if there was a car next to her or where to go. This impediment to her field of vision would require her to park or not drive at all. Id. at 86. Because monocular individuals do not have an onerous burden in showing that they are disabled, Kirkingburg, 527 U.S. at 566, this evidence substantiates the district court's conclusion that Colwell's loss of horizontal field of vision and depth perception was significant and sufficient to support the determination that Colwell was disabled. Id. at 567 ("people with monocular vision 'ordinarily' will meet the Act's definition of disability"). Finally, Rite Aid did not contest Colwell's qualifications or performance as a cashier. As the district court noted, Colwell received several reward cards for good customer service and "defendants did not declare that plaintiff's performance was unsatisfactory." Slip Op. at *7. Because there is no dispute that Colwell was qualified to serve as a cashier, the district court properly proceeded to the accommodation issue. II. Rite Aid Was Not Entitled to Summary Judgment on Colwell's Failure to Accommodate Claim Because a Schedule Change to Day Shifts Can Be a Reasonable Accommodation Under the ADA Under the ADA, an employer commits unlawful disability discrimination if it "does not mak[e] reasonable accommodations to the known physical or mental limitations of an [employee who is an] otherwise qualified individual with a disability. . . ." 42 U.S.C. § 12112(b)(5)(A); Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 325 (3d Cir. 2003). An accommodation is "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." 29 C.F.R. Pt. 1630, App. § 1630.2(o). Examples of reasonable accommodations include "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, ... and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9)(B). Generally, an accommodation is reasonable if it "seems reasonable on its face, i.e., ordinarily or in the run of cases." U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401- 02 (2002). Whether a requested accommodation is reasonable is a question of fact for the jury. Turner v. Hershey Chocolate U.S., 440 F.3d 604, 614 (3d Cir. 2006). In this case, Colwell sought a change from night to day shifts because her vision impairment made it unsafe for her to drive to and from work at night. In deciding whether a genuine issue of material fact exists regarding the reasonableness of a requested accommodation, this Court first examines whether the proposed accommodation is possible. Turner, 440 F.3d at 614. Colwell satisfied this initial burden because Rite Aid had employees working on day shifts, the work was the same during day shifts as night shifts, and making shift assignments for cashiers was a routine feature of that workplace. Because Colwell's proposed accommodation of a work schedule modification was possible under the Turner framework, the burden was on Rite Aid to demonstrate that the proposed accommodation was unreasonable or would cause an undue hardship. Id. In the district court, Rite Aid did not contend that switching Colwell to day shifts would create an undue hardship. Instead, Rite Aid argued that Colwell's requested accommodation of "a switch to daytime hours so that she could drive herself to work" was unreasonable as a matter of law. Slip Op. at *8. The district court agreed with Rite Aid that, since Colwell did not need an accommodation to perform her job once she arrived at work, Rite Aid had no duty to accommodate her as a matter of law. Slip Op. at *9. The district court concluded that the statutory requirement of reasonable accommodations is limited to accommodations "at the workplace" and that Colwell's needed schedule change "had nothing to do with the work environment or the manner and circumstances under which she performed her work." Id. Rather, the court thought the accommodation she sought was one that only facilitated "her commute to work." Id. In the court's view, to make an employer responsible for how an employee gets to work would expand the employer's responsibility beyond the ADA's intention. Id. The district court began its analysis by correctly noting that employers are obligated to make adjustments or modifications to the work environment or the circumstances under which a job is performed to enable individuals with disabilities to perform essential job functions. Slip Op. at *8 (citing 29 C.F.R. §1630.2(o)(1)(ii)). But the court's conclusion that the accommodation obligation it identified is limited to removing barriers "at the workplace" or to changing the work environment or the way a job is performed has no basis in law or logic, and in fact subverts the purpose of the reasonable accommodation provision. Changing the work environment or the way a job is performed is not an exclusive mandate of the ADA accommodation requirement. The plain language of the ADA requires accommodation of the "known physical or mental limitations of an otherwise qualified individual with a disability," 42 U.S.C. § 12112(b)(5)(A), and that language does not limit an employer's obligation to accommodating only limitations that affect performance of the essential functions of an employee's position. In other words, an individual with a disability who can perform all essential job functions without an accommodation is still entitled to accommodations of her "known physical or mental limitations." Id. That Congress intended to extend the employer's accommodation duty beyond the immediate boundaries of the workplace or performance of specific job duties is illustrated by the statute's express mention of other potential accommodations, such as "making existing facilities used by employees readily accessible to and usable by individuals with disabilities" and "modification of . . . policies," 42 U.S.C. § 12111(9)(A), and "reassignment to a vacant position," 42 U.S.C. § 12111(9)(B). Moreover, in recognition of the breadth of the ADA's protection, EEOC regulations further define reasonable accommodation to include "[m]odifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities." 29 C.F.R. § 1630.2(o)(1)(iii). The law explicitly provides that "modified work schedules" are considered a reasonable accommodation under the ADA. 42 U.S.C. § 12111(9)(B); 29 C.F.R. §1630.2(o)(2)(ii) (same); 29 C.F.R. Pt. 1630, App. § 1630.9 (accommodations require alleviation of barriers to equal employment opportunity, and such barriers include "rigid work schedules that permit no flexibility as to when work is performed"); also see H.R. Rep. No. 101-485(II), at 62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345 ("persons who need medical treatment may benefit from flexible or adjusted work schedules"). Question 22 of the EEOC guidance states: "An employer must provide a modified . . . schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees." See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html; see also Gile v. United Air Lines, Inc., 213 F.3d 365, 372-73 (7th Cir. 2000) (upholding liability verdict for an employee with anxiety disorder and insomnia, which affected her sleep pattern when she worked the night shift, who could have performed the essential functions of her job with the reasonable accommodation of a shift change to days). Congress specifically considered the possibility that schedule modifications might be needed by people with disabilities because of transportation challenges in getting to the job. For example, Congress recognized that "persons who may require modified work schedules are persons with mobility impairments who depend on a public transportation system that is not currently fully accessible." H.R. Rep. No. 101-485(II) at 62-63, reprinted in 1990 U.S.C.C.A.N. at 345; see also EEOC: Technical Assistance on Title I of ADA, 8 FEP Man. (BNA) at 405:7010 (a reasonable accommodation may include modifying an employee's work schedule if that employee is dependent upon public transportation and requires a different schedule to use that system). This public transportation illustration demonstrates that an employee who is able to perform the essential functions of the job without an accommodation, but requires a schedule adjustment to be able to get to and from his or her place of employment, is seeking an accommodation contemplated by the ADA. In short, the statute, legislative history, EEOC regulations and interpretive guidance, as well as case law, all support the principle that the ADA contemplates scheduling accommodations that enable a disabled individual to get to the workplace by removing the time constraints that constitute an impediment to employment. The only statutory conditions necessary for an individual's claim of entitlement to a reasonable accommodation are that the limitation the individual asks her employer to accommodate must be related to her disability, and the accommodation sought must be job-related and within the employer's control. In this case, there is no dispute that Colwell's request for a schedule change related to her vision impairment, which made it impossible for her to drive at night. Nor can there be any doubt that the schedule change she sought is job-related because it was obviously within her employer's control and statutorily identified as a potential accommodation under the ADA employment provisions. EEOC guidance makes clear that accommodations are "job-related" within the meaning of the ADA's accommodation provisions, and thus within the employer's purview, if they enable individuals to work. 29 C.F.R. Pt. 1630, App. § 1630.9 (if the requested "adjustment or modification is job-related, e.g., specifically assists the individual in performing the duties of a particular job, it will be considered a type of reasonable accommodation"). Facilitating an employee's ability to get to the workplace so that she can do her job by scheduling her for day shifts is precisely the type of job-related accommodation contemplated by the ADA. As with making facilities accessible, such an accommodation promotes access to the workplace and, in a broad sense, assists the individual in performing the duties of her particular job. The district court's arbitrary, extra-statutory limitation on the accommodation requirement cannot be reconciled with the language and purpose of the statute. This Court has recognized that there are some limitations on the employer's duty to provide reasonable accommodations, in that employers are not required to create a new position for a disabled employee, to transform a temporary light duty position into a permanent one, to do anything that would create a direct threat to the safety of the individual or others, or to provide an accommodation if doing so would conflict with collectively bargained seniority rules. Turner, 440 F.3d at 614. Further, the EEOC's interpretive guidance makes clear that employers are not required to provide personal amenities, such as hot plates or refrigerators, or personal items that assist an individual "throughout his or her daily activities, on and off the job," such as a wheelchair, prosthetic limb, or eyeglasses. 29 C.F.R. Pt. 1630, App. § 1630.9. Nothing in the logical or legal parameters of these exceptions, however, supports the exception the district court embraced here for refusing to make a schedule adjustment merely because the need for it was related to a commuting problem. After labeling Colwell's requested accommodation as a commuting problem, the district court explained its view that approving her request would make the employer "responsible for how an employee gets to work." Slip Op. at *9. The court's commuting label contributed to its decisional error because Colwell did not seek assistance in her means or method of getting to work, i.e., her commute, but rather an adjustment of the work schedule dictating when she should work. Employers typically have no control over how employees get to work, but they do control when work is done, and thus changing an employee's schedule is a quintessential reasonable accommodation under the ADA, even though the schedule change may affect the individual's commute in some way. In reaching its conclusion that commuting problems are outside the purview of the accommodation provision, the district court was persuaded by a number of district court decisions holding that employers do not need to provide accommodations that facilitate an employee's commute. Slip Op. at *8 (citing Laresca v. AT&T, 161 F. Supp.2d 323, 335 (D.N.J. 2001) (employee with epilepsy sought a change to day shifts so he could use public transportation, but court held this "was in essence a commuting problem, which AT&T was not legally obligated to accommodate"); Salmon v. Dade County Sch. Bd., 4 F. Supp.2d 1157, 1163 (S.D. Fla. 1998) (employer was not obligated to transfer a disabled teacher to a school which afforded her a shorter commute, because her commute to and from work is an activity that is unrelated to and outside of her job); and Livingston v. Fred Meyer Stores, Inc., 567 F. Supp.2d 1265, 1274 (D. Or. 2008) (employer was not obligated to accommodate commute-related limitations)). The rationale of these decisions and two others rejecting similar accommodation requests appears to be that an employer is not required to eliminate barriers outside the workplace. Slip Op. at *9 (citing Bull v. Coyner, No. 98-7583, 2000 WL 224807, at *9 (N.D. Ill. Feb. 23, 2000) (unpublished) ("[a]ctivities . . .,like commuting to and from the workplace, are not within the province of an employer's obligations under the ADA")); Pagonakis v. Express, LLC, 534 F. Supp.2d 453 (D. Del. 2008) (same)). Obviously, none of these rulings is binding, and their rationale should be rejected because the holdings of these cases conflict with the principles discussed above and with the ADA's goals of assuring "equality of opportunity, full participation, independent living, and economic self-sufficiency" for individuals with disabilities, 42 U.S.C. § 12101(a)(7). They flout the accommodation principle of enabling individuals with disabilities "to enjoy equal benefits and privileges of employment as are enjoyed by ...employees without disabilities." 29 C.F.R. § 1630.2(o)(1)(iii). And they undermine the ADA's mission to "diminish or to eliminate . . . the thoughtless actions . . . that far too often bar those with disabilities from participating fully in the Nation's life, including the workplace." Barnett, 525 U.S. at 401. While some of these courts, like the district court here, erroneously labeled the requested schedule changes as an effort to get assistance with a commute, and thus beyond the purview of the ADA accommodation provision, the Commission also notes that some of the proposed accommodations are factually distinguishable from Colwell's requested accommodation because the requests go beyond schedule modifications. For example, the plaintiff in Bull, 2000 WL 224807 at *9, asked his employer to provide drivers or to require coworkers to provide him rides to work. Colwell never asked Rite Aid to provide her with drivers or to require her coworkers to drive her to and from work. It may be that asking an employer to provide a driver or to require coworkers to provide rides to work is seeking assistance with the actual commute, but that is not what Colwell sought. Finally, the Commission notes that one of the cases on which the district court relied, Pagonakis v. Express, LLC, 534 F. Supp.2d 453 (D. Del. 2008), has been overruled by this Court. See Pagonakis v. Express, LLC, No. 08-1753, 2009 WL 541266 (3d Cir. Mar. 5, 2009) (unpublished). In reversing the district court's grant of summary judgment on the failure to accommodate claim in Pagonakis, this Court, at least implicitly, rejected the commuting rationale as an exception to the reasonable accommodation requirement. In Pagonakis, an employee with a closed head injury, which restricted her ability to think, hear, see, work, and drive, sought reinstatement of accommodations that enabled her to work. 534 F. Supp.2d at 454-55. These accommodations included daytime shifts, flexible work schedules, and not having to drive in inclement weather. Id. at 455. The district court decided that these accommodations only allowed plaintiff to commute to work and were not related to the essential functions of her job. Id. at 462 n.9. Adding that "[e]mployers are not required to grant accommodations to an employee to commute to work because the ADA solely addresses discrimination with respect to 'terms, condition, or privilege of employment,'" id. at 463 n.11 (quoting Bull), the district court dismissed her failure to accommodate claim based on its belief that she could not perform the essential functions of her job without an unreasonable accommodation. Id. at 464 n.14. On appeal, this Court held that there are genuine issues of material fact as to the essential functions of the employee's position and thus it could not agree that no jury could find that she was a qualified individual. Pagonakis, 2009 WL 541266 at *4, *5. Express argued that the root cause of Pagonakis's inability to perform essential job functions was her inability to commute to and from work under certain conditions, and that "commuting to and from work is not part of the work environment that an employer is required to reasonably accommodate." Express's Brief at 18, 2008 WL 5586165 (3d Cir. filed Aug. 26, 2008)(citing Laresca, Bull, and Salmon). Despite Express's argument that Pagonakis's commuting problems rendered her unqualified in a way it was not obligated to accommodate, this Court reasoned that "a jury could find that [Express] would not have promoted Pagonakis to Co-Manager if her accommodations (which were in place at the time of her promotion) were inherently incompatible with the essential functions of the position." Pagonakis, 2009 WL 541266 at *4. In reaching this conclusion, the Court implicitly found the accommodations of daytime shifts, flexible work schedules, and not having to drive in inclement weather to be reasonable accommodations that enabled the employee to perform her job even while it facilitated her ability to get to work. In that the ADA requirement to modify schedules is codified without restriction or exception, subject to the undue hardship defense (which Rite-Aid did not assert), the district court erred in holding that Colwell's requested schedule modification was unreasonable as a matter of law. A jury should determine in this case whether changing Colwell's work schedule from evenings to days is reasonable. The requested accommodation would impact the conditions of Colwell's employment, is within the employer's control, and would allow her to fully and independently work as a cashier for Rite Aid. Therefore, this Court should reverse the district court's entry of summary judgment on Colwell's failure to accommodate claim. III. The District Court Should Not Have Granted Summary Judgment on Colwell's Constructive Discharge Claim Because Triable Issues of Fact Exist as to Whether Rite Aid's Failure to Accommodate Colwell Created an Intolerable Condition of Employment In the district court, Rite Aid argued, and the district court agreed, that Colwell could not make out a prima facie case of disparate treatment because she did not suffer an adverse employment action. Slip Op. at *6. According to Rite Aid, the only adverse act that Colwell claimed was constructive discharge. Id. The court decided that Colwell was not constructively discharged because Rite Aid had not threatened her with termination, encouraged her to resign, reduced her pay or benefits, demoted her, transferred her to a less desirable job, or altered her job responsibilities. Id. at *6-*7. The court then concluded that, because "'a prerequisite to a successful constructive discharge claim is that the plaintiff attempted to explore alternatives before electing to resign,'" id. at *8 (quoting Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir. 1998)), Colwell's claim failed because she did not participate in the grievance procedure available through the company or her union, try to find a coworker with whom she could switch shifts, or appeal to higher management. Id. at *7-*8. Given the totality of the circumstances, the district court imposed an unduly stringent standard in considering whether the denial of an accommodation can support a claim of constructive discharge even where the plaintiff may not have exhausted all other avenues to relief. Generally, as the Supreme Court said in Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004), and as this Court has held, a person is constructively discharged when an employer makes the work "conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign." Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001). Such a claim does not require proof of the employer's specific intent to obtain an employee's resignation; it is enough that the employer knowingly permitted intolerable conditions of discrimination which would compel a reasonable person to resign. Goss v. Exxon Office Systems Co., 747 F.2d 885, 887-88 (3d Cir.1984). Here, as previously discussed, Rite Aid refused to provide Colwell with a reasonable accommodation of day shifts. Under these facts, the denial of an accommodation creates a triable issue on her constructive discharge claim. See Pagonakis, 2009 WL 541266, at *5 n.4 ("[t]o the extent Pagonakis asserts that Express' alleged failure to accommodate . . . resulted in her constructive discharge, she may present that theory to a jury"). As the Supreme Court has observed, in employment cases context matters. See, e.g., Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) ("a schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children"); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) ("the real social impact of the workplace behavior often depends on a constellation of surrounding circumstances, expectations, and the relationship which are not fully captured by a simple recitation of words used or the physical acts performed"). Consequently, context matters in constructive discharge cases. Such a claim turns not only on whether plaintiff's response is objectively reasonable, Suders, 542 U.S. at 141, but also on the reactions of "a reasonable person in the employee's position." Id. Hence, Colwell's personal circumstances must factor into the determination of whether Rite Aid's refusal to assign her to day shifts was sufficiently adverse to create an intolerable situation. Here, Colwell made it clear that working night shifts was an intolerable situation. In fact, night shift assignments made it impossible for her to work. She explained that driving herself presented an unsafe risk. R.25, Att.4-Colwell Dep. at 85-86. She told Chapman that getting rides from her family would be an inconvenience to them, intimating that it could not be a permanent solution. Id. at 159, 176. She obtained a doctor's note advising her against night driving, which she shared with the union and discussed with Chapman. Id. at 132-33; R.25, Att.3- Chapman Dep. at 14, 15. She convinced her union representative to ask Chapman for day shifts on her behalf, which he did, but Chapman refused. Slip Op. at *2; R.25, Att.4-Colwell Dep. at 140-43; R.25, Att. 3-Chapman Dep. at 23-24. She was assured by her union representative that he would reschedule a meeting with Chapman to discuss the accommodation, but Colwell never heard from him again. R.25, Att.4-Colwell Dep. at 143, 145. Under these facts, a reasonable jury could conclude that Colwell was not required to take further steps to get the accommodation she needed. Viewed in the light most favorable to Colwell, a factfinder also could decide that a reasonable person would have felt compelled to quit her job in light of Chapman's recalcitrance. Cf. Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 788 (3d Cir. 1998) (assigning an employee to an undesirable schedule is more than a "trivial" change in the employee's working conditions). Chapman had responsibility for setting schedules, R.25, Att.3, Chapman Dep. at 26, 41, and consistently refused to honor Colwell's request even when her union representative raised the issue. Id. at 16, 24. A factfinder could believe that Chapman's persistent assignment of Colwell to night shifts perpetuated such an intolerable work condition that a reasonable person would have felt compelled to quit. See Keelan v. Majesco Software, Inc., 407 F.3d 332, 342 (5th Cir. 2005) ("[a]ggravating factors used to support constructive discharge include ... the employer's invidious intent to create or perpetuate the intolerable conditions compelling the resignation"); Johnson v. Shalala, 991 F.2d 126, 132 (4th Cir.1993) ("a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge"); Schwarz v. Northwest Community Coll., 881 F. Supp. 1323 (N.D. Iowa 1995) (plaintiff alleged constructive discharge due to change from day to night shift which was impossible for her because she could not drive to work due to night blindness; court denied summary judgment because a reasonable person could have found it intolerable to work the evening shift since the issue was not "merely whether the change in hours worked a constructive discharge, but whether a change in hours which placed particular burdens on an employee because of a physical problem imposed intolerable conditions upon that employee's continued employment"); Dodaro v. Acme Markets, 2006 WL 776976, at *6 (D.N.J. Mar. 27, 2006) (ruling on state disability law claim that a "reasonable person could consider that an increased commute which would put a person at an increased risk of serious or even fatal seizures would be an 'intolerable condition' and resign"). Further, the district court should not have faulted Colwell for not asking coworkers to switch shifts with her. Slip Op. at *7. The ADA imposes no such obligation on individuals seeking accommodations. See 42 U.S.C. §12112(b)(5)(A) (employer violates ADA by failing to make accommodations). Further, it would fly in the face of the ADA's confidentiality protections, 42 U.S.C. § 12112(d), to require individuals to reveal their medical conditions or limitations to coworkers to obtain workplace accommodations that are within the employer's sole ability to provide and authorize. Accordingly, summary judgment on Colwell's constructive discharge claim should be reversed. CONCLUSION The evidence in the record is sufficient to permit a reasonable jury to conclude that Colwell had a disability, was denied a reasonable accommodation, and was constructively discharged. Therefore, the Commission urges this Court to reverse the summary judgment entered in favor of Rite Aid and remand the case for trial of Colwell's ADA claims. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________________ s/PAULA R. BRUNER Attorney Equal Employment Opportunity Commission 131 M Street, N.E., Fifth Floor Washington, D.C. 20507 (202) 663-4731 (w); (202) 663-7090 (fax) May 21, 2009 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. Proc. 32(a)(7(C), the undersigned certifies that the brief complied with the type-volume limitations. 1. Exclusive of the exempted portions in Fed. R. App. Proc. 32(a)(7)(B)(iii) and 3d Cir. L.A.R. 29.1(b), the brief contains 6,930 words. 2. The brief was prepared in proportionally spaced typeface using Microsoft Word 2003, Times Roman, 14 point for the text and the footnotes. 3. Symantec AntiVirus, a virus detection program, has been run on the file and no virus was detected. 4. At the Court's request, the undersigned has uploaded an electronic PDF version of the brief to the Court's website. The text of the electronic brief is identical to the text in the paper copies that will be mailed to the Court. 5. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Fed. R. App. Proc. 32(a)(7(C) may result in the court's striking the brief and imposing sanctions against the person signing the brief. s/Paula R. Bruner May 21, 2009 CERTIFICATE OF SERVICE This is to certify that, pursuant to 3d Cir. L.A.R. 113.4(a), on May 21, 2009, an electronic copy of the foregoing brief along with the certificate of service was served on counsel of record via the Court's electronic filing system: Cynthia L. Pollick, Esq. The Employment Law Firm 363 Laurel Street Pittston, PA 18640 Amy G McAndrew, Esq. Pepper Hamilton LLP 400 Berwyn Park 899 Cassatt Road Berwyn, PA 19312 Brian P. Downey, Esq. Pepper Hamilton LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 s/PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E., Fifth Floor Washington, D.C. 20507 (202) 663-4731 May 21, 2009 *********************************************************************** <> <1> The Commission takes no position on other issues in this appeal. <2> The district court's opinion mistakenly states that Chapman did not show up for the meeting. Slip Op. at *2. <3> Colwell did not work that night shift because her last day of work was October 22. R.25, Att.3-Chapman Dep. at 46; Att.4-Colwell Dep. at 150. <4> This Court has consistently noted that EEOC regulations defining ADA terms are entitled to deference. See Eshelman v. Agere Systems, Inc., 554 F.3d 426, 434 (3d Cir. 2009) (deferring to definition of "major life activity" as set forth in EEOC regulations); Emory v. AstraZeneca Pharms. LP, 401 F.3d 174, 180 n.4 (3d Cir. 2005) (deferring to EEOC's amicus brief containing "myriad statements of fact and law demonstrating that the ADA's definition of 'disability' must include Emory, who suffers obvious and severe restrictions, if it is to protect anyone at all").