IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 94-2312 CAROL J. DERBIS, Plaintiff-Appellant, v. UNITED STATES SHOE CORPORATION, Defendant-Appellee. On Appeal from the United States District Court for the District of Maryland BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE JAMES R. NEELY, JR. Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 Washington, DC 20507 (202) 663-4717 TABLE OF CONTENTS CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 94-2312 CAROL J. DERBIS, Plaintiff-Appellant, v. UNITED STATES SHOE CORPORATION, Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of Virginia BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration and enforcement of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C 12111 et seq. This case involves the standard for determining whether an individual with a disability is "qualified" within the meaning of 101(8) of the ADA. 42 U.S.C. 12111(8). This Court's resolution of the appeal will have an impact on many other individuals who may have claims under the ADA. The Commission therefore offers its views to the court. STATEMENT OF JURISDICTION The plaintiff raised claims under the ADA and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621 et seq., and the district court accordingly had subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 (action arising under a federal statute), 1337 (action arising under statute regulating commerce), and 1343 (action authorized by law to redress deprivation of civil rights). The district court entered a final judgment on September 8, 1994, and plaintiff filed a timely notice of appeal on October 3. Cite. This Court therefore has jurisdiction pursuant to 29 U.S.C. 1291. STATEMENT OF THE ISSUE Whether the district court erred in holding that plaintiff's doctor's statement that she could return to work "as tolerated" conclusively establishes that she was not able to perform her job. STANDARD OF REVIEW This court reviews summary judgment orders de novo. Patterson v. McLean Credit Union, 39 F.3d 515, *518 (4th Cir. 1994). If the evidence is subject to more than one reasonable interpretation, this court gives that evidence the interpretation more favorable to the party opposing summary judgment. Id. STATEMENT OF THE CASE Course of Proceedings This is an appeal from a district court order granting the defendant summary judgment on both of plaintiff's claims. Plaintiff alleged that defendant violated the ADA and the ADEA when it refused to allow her to return to work in the summer of 1992. Statement of Facts Carol Derbis was employed by U.S. Shoe Corporation as the manager of a retail clothing outlet. [Drbs Dep 23; Dft Ex 5] In October 1989, Derbis, who is right-handed, injured her right thumb when a clothes rack fell on her right hand at work. [Drbs Dep 48-49] She continued working through the busy holiday season, but took short-term disability leave sometime early in 1990 because of the thumb injury. [Drbs Dep 49, 52] She had surgery on her thumb in June 1990. [Cpr Dep 6] Derbis returned to work in December 1990 and performed well. [Drbs Dep 59, 63] One of defendant's vice-presidents wrote her in April 1991 noting that her store was the top-volume specialty retail outlet in her mall, and congratulating her for "do[ing] an outstanding job in generating extra business for us." [Plf Ex A] In September 1991 her store ranked third in sales growth among the 31 stores in her region. [Plf Ex D] In early 1992 Derbis again left on short-term disability leave. [Drbs Dep 77-78] She was hospitalized with a kidney infection in March, and by June had recovered sufficiently to have a second surgery on her thumb to remove a growth. [Drbs Dep 40, 78; Cpr Dep 8] In early July she told her regional manager that she planned to return to work on August 1. [ X 23, Ans. to Int. 7; X 15] Doris Ciampoli, defendant's employee relations coordinator, wrote her on July 17 stating that defendant would "need a total release filled out by your doctor indicating that you are totally released to work or exactly what restrictions you may have." [ X 15] Derbis gave defendant a return-to-work slip from Dr. Cooper, her treating physician, that stated: "Disabled from work thru 8-1-92. May return as tolerated." [ X 17] At the end of July Ciampoli called Derbis and said that the release she had provided was not satisfactory. [Drbs Dep 109-11] According to Derbis, Ciampoli told her she could not return to work unless her doctor provided "a complete release from further treatment." [Drbs Dep 152] Derbis testified that she told Ciampoli that she "was able to do the work, that [she] had been running the store with this injury and that [she] felt that [she] was fully capable of doing [her] job." [Drbs Dep 111] Derbis states that she asked Ciampoli to let her work that weekend and postpone the final decision on her resuming her position. [Drbs Dep 112-13] According to Derbis, Ciampoli repeated that Derbis could not return to work on any terms without a complete release, and suggested that Derbis apply for long-term disability. [Drbs Dep 113] Accordingly, Derbis did not return to work. She applied for long-term disability, but her application was denied. [ X 19-20, 22] District Court Decision The district court granted defendant's motion for summary judgment on both of Derbis's claims. With respect to her ADA claim, the court first held that Derbis had raised a factual dispute concerning whether defendant regarded her as having a disability by offering evidence that defendant recommended that she apply for long-term disability. 65 FEP Cases at 1332. The court then addressed whether Derbis had raised a factual dispute concerning whether she was qualified. The court ruled that the doctor's use of the words "as tolerated" in his return- to-work slip plainly indicated that Plaintiff needed some accommodation. In essence, Dr. Cooper's medical opinion contemplated that Plaintiff would have to stop working when the pain in her thumb became too great. Thus, Plaintiff's contention that she needed no accommodation at all cannot be correct, as it is contradicted by Dr. Cooper's opinion, which Plaintiff herself provided to U.S. Shoe. 65 FEP Cases at 1332 (record citations and footnote deleted). According to the court, in light of the doctor's use of that phrase, "U.S. Shoe could not reasonably have been expected to accept" Derbis's repeated assertions that she could do the job. Moreover, the court reasoned, "it would have been reckless from a potential liability standpoint for U.S. Shoe to permit Plaintiff to return to work 'as tolerated,' given the very real risk that Plaintiff might 'work through' the pain, and further injure herself." Id. at 1332 n.11. The court therefore held that, since defendant was justified in totally disregarding Derbis's declarations that she could do the job, Derbis failed to submit sufficient evidence to support a finding that she was qualified. Id. at 1332-33. ARGUMENT THE DISTRICT COURT ERRED IN HOLDING THAT DR. COOPER'S USE OF THE WORDS "AS TOLERATED" NECESSARILY MEANT THAT DERBIS WAS NOT ABLE TO PERFORM HER JOB WITHOUT ACCOMMODATION. The district court properly held that Derbis raised a factual question as to whether she was regarded as having a disability by pointing to evidence that defendant recommended that she apply for long-term disability benefits. 65 FEP Cases at 1332. The court then correctly turned to the issue of whether Derbis had raised a factual dispute concerning whether she was a "qualified individual with a disability," which she must be to invoke the protection of the ADA. White v. York Int'l Corp., 1995 WL 3735, *3 (10th Cir. 1995) (plaintiff must establish that she has a disability, that she is qualified, and that defendant discriminated against her on the basis of her disability). At that point Derbis bore the burden of proving "that she could perform the essential functions of her job." Tyndall v. National Educ. Centers, 31 F.3d 209, 213 (4th Cir. 1994). This determination "should be based on the capabilities of the individual with a disability at the time of the employment decision, and should not be based on speculation that the employee may become unable in the future or may cause increased health insurance premiums or workers' compensation costs." Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630 App., at p. 399 (1994). The record contains the following evidence concerning Derbis's ability to perform her job at the time defendant made the challenged decision not to permit her to return to work. Derbis had functioned satisfactorily as store manager for 15 months after her first surgery. During her 1992 leave, she had a second operation on her thumb, but there is no evidence in the record that her condition was worse after the second operation than it was after the first. Dr. Cooper's note authorized her return to work "as tolerated," but Derbis told defendant that she could do the job and needed no accommodation. Confronted with this evidence, the district court held that the doctor's use of the words "as tolerated" justified defendant's decision to simply ignore Derbis's assurances that she could do the job. The district court did not explicitly hold that the "as tolerated" language also justified defendant's decision to ignore the fact that she had recently performed the same job with the same injury for over a year, but that holding is implicit in the court's ruling that defendant was entitled to rely on "the uncontradicted medical evidence" and disregard any contrary evidence. According to the district court, "as tolerated" necessarily meant that Derbis would be unable to perform her job without accommodation. 65 FEP Cases at 1332 (return-to-work slip "plainly indicated that Plaintiff needed some accommodation"). But an authorization to return to work "as tolerated" does not constitute a prediction that the employee will definitely -- or even probably -- experience so much pain that she will be unable to perform her job. It merely means that the employee may experience pain, and may or may not be able to tolerate that pain and still function satisfactorily. See White, 1995 WL 3735 at *1 (noting with apparent approval employer's belief that the phrase "as tolerated" is "ambiguous"); Steward v. Bowen, 858 F.2d 1295, 1302 (7th Cir. 1988) (recognizing that pain is not necessarily disabling); Fraga v. Bowen, 810 F.2d 1296, 1303 (5th Cir. 1987) (same); cf. Newport News Shipbuilding & Dry Dock Co. v. Parker, 935 F.2d 20, 27 (4th Cir. 1991) (fact that employee was able to work full time for years in spite of persistent pain supports review board's determination that statute of limitation did not start running until employee later developed disability). At most, the doctor's use of the words "as tolerated" raised a question as to whether Derbis could do the job or how long she would be able to continue working. However, those words did not constitute conclusive evidence that Derbis was at that time incapable of performing her job without accommodation. Indeed, the district court's observation about the risk of Derbis's "'work[ing] through' the pain," 65 FEP Cases at 1332 n.11, reveals the court's awareness that her condition would not necessarily have prevented her from doing her job. Contrary to the court's view, however, the defendant's concern that Derbis might have exacerbated her injury by performing her job is not a legitimate basis for denying her employment unless defendant could prove that Derbis would have posed a "direct threat," that is, "a significant risk to the health and safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C 12113(b), 12111(3). See also [EEOC regulation (with parenthetical quote)]. A risk can be considered as a basis for denying employment only when it constitutes a "high probability . . . of substantial harm; a speculative or remote risk is insufficient." 29 C.F.R. Pt. 1630 App., at p. 403 (1994). Further, an employer's determination that a direct threat exists "must be strictly based on valid medical analyses and/or on other objective evidence." Id.; see also EEOC v. AIC Security Investigation, Ltd., 820 F. Supp. 1060, 1066 (N.D. Ill. 1993) (in determining whether person poses direct threat, employer must make "an individualized assessment of the individual's present ability to safely perform the essential functions of the job") (citing 29 C.F.R. 1630.2(r)). The only evidence that could be viewed as suggesting that resumption of employment would constitute a risk even to herself was a statement by Dr. Cooper suggesting that Derbis not use her thumb at all. However, Dr. Cooper made other statements in his deposition indicating that she could use her thumb until it hurt too much, and he never stated that using the thumb would exacerbate the injury. On this record, the district court could not conclude on summary judgment that Derbis was unqualified to resume her employment because she constituted a "direct threat." Construed in the light most favorable to plaintiff, as it must be in considering defendant's motion for summary judgment, the evidence would support a finding that defendant refused to allow Derbis to resume her employment not because it believed that she was not able at that time to perform the job, but rather out of a concern that, unless her thumb injury was completely healed, it might cause her to become unable to perform the job at some time in the future. Derbis testified that Ciampoli repeatedly stated that she could not return to work unless she was able to provide a "complete release from further treatment." This statement, if credited by the factfinder, could support a conclusion that the defendant was requiring not merely that Derbis was currently capable of performing the essential functions of her job, but that she was completely cured so that there would be no risk of future incapacity. Such a practice would be antithetical to the policies behind the ADA, and would, if followed generally, significantly reduce the employment opportunities available to persons with disabilities. Cf. Bentivegna v. Department of Labor, 694 F.2d 619, 622 (9th Cir. 1982) (any qualification based on risk of future injury "must be examined with special care" because persons with disabilities are generally at greater risk of injury). CONCLUSION For these reasons the Commission urges this Court to reverse the judgment and remand this case for further proceedings. Respectfully submitted, JAMES R. NEELY, JR. Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L St., N.W., 7th floor Washington, DC 20507 (202) 663-4717