UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT __________________________________ No. 06-1486 __________________________________ MICHELE R. FREADMAN, Plaintiff-Appellant, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant-Appellee. __________________________________________________ On Appeal from a Judgment of the United States District Court for the District of Rhode Island Civil Action No. 01-628 ML __________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ON BEHALF OF APPELLANT MICHELE FREADMAN AND IN SUPPORT OF REVERSAL __________________________________________________ JAMES L. LEE SUSAN R. OXFORD Deputy General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 (202) 663-4791 TABLE OF CONTENTS page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . .ii STATEMENT OF INTEREST OF AMICUS CURIAE . . . . . . . . .1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2 1. Statement of Facts . . . . . . . . . . . . . . .2 2. District Court Decision . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . .9 FREADMAN'S REQUESTS FOR TIME OFF AND TO WORK AT HOME WERE SUFFICIENTLY DIRECT AND LINKED TO HER MEDICAL CONDITION TO CONSTITUTE ADA REQUESTS FOR ACCOMMODATION AS WELL AS "PROTECTED ACTIVITY" UNDER THE ADA'S ANTI-RETALIATION PROVISION. . . . . . . 9 A. Standard of Review. . . . . . . . . . 9 B. Freadman's June 2000 Requests for Time Off and to Work at Home Constituted Requests for Accommodation Under the ADA . . 10 C. Freadman's Requests for Time Off and to Work at Home Constituted "Protected Activity" for Purposes of the ADA's Anti-Retaliation Provision . . . . . . . . .23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . .26 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . 27 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES page Arrieta-Colon v. Wal-Mart Puerto Rico, 434 F.3d 75 (1st Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . 12 Benoit v. Technical Mfg. Corp., 331 F.3d 166 (1st Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 22, 24 Bercovitch v. Baldwin Sch., 133 F.3d 141 (1st Cir. 1998) . . 11 Brenneman v. MedCentral Health Sys., 366 F.3d 412 (6th Cir. 2004), cert. denied, 543 U.S. 1146 (2005) . . . . . . . . . 8, 22 Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281 (7th Cir. 1996) . . . . . . . . . 15, 18 Calef v. Gillette Co., 322 F.3d 75 (1st Cir. 2003) . . . . . . 16 Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6 (1st Cir. 2004) . . . . . . . . . . . . . . . . . .9, 10, 11, 14 Cehrs v. Ne. Ohio Alzheimer's Research Ctr., 155 F.3d 775 (6th Cir. 1998) . . . . . . . . . . . . . . .18 Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318 (3d Cir. 2003) . 20 Coyne v. Taber Partners I, 53 F.3d 454 (1st Cir.1995) . . . . 9 Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998) . . . . . 18 EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005) . . 13 EEOC v. Wal-Mart Stores, 187 F.3d 1241 (10th Cir. 1999) . . . 12 Estades-Negroni v. Assocs. Corp. of N. Am., 377 F.3d 58 (1st Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 11, 14 Felix v. N.Y. City Transit Auth., 324 F.3d 102 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 1 Fjellestad v. Pizza Hut of Am., 188 F.3d 944 (8th Cir. 1999) . 11 Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . .17 CASES (cont'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667 (1st Cir. 1995) 16 Guzman-Rosario v. United Parcel Serv., 397 F.3d 6 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . .23 Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928 (7th Cir. 1995) . . 19 Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) . . . . . . . . . . . . . . . . . 18 Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128 (9th Cir. 2001) 18 McGurn v. Bell Microproducts, Inc., 284 F.3d 86 (1st Cir. 2002) 9 Quint v. A.E. Staley Mfg. Co., 172 F.3d 1 (1st Cir. 1999) 16 Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001) 19 Ralph v. Lucent Techs., Inc., 135 F.3d 166 (1st Cir. 1998) 18 Reed v. LePage Bakeries, Inc., 244 F.3d 254 (1st Cir. 2001) 11, 22 Russell v. TG Missouri Corp., 340 F.3d 735 (8th Cir. 2003) 8, 22 Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997) 21, 23 Taylor v. Phoenixville Sch. Dist., 174 F.3d 142 (3d Cir. 1999) 11 Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100 (1st Cir. 2005) 16, 19 Wright v. CompUSA, Inc., 352 F.3d 472 (1st Cir. 2003) . . . . . 23 STATUTES page 29 U.S.C. § 701 et seq. . . . . . . . . . 11 42 U.S.C. §§ 12101 et seq. . . . . . . . . . 1 42 U.S.C. § 12112(a) . . . . . . . . . 10 42 U.S.C. § 12112(b)(5) . . . . . . . . . 1 42 U.S.C. § 12112(b)(5)(A) . . . . . . . . . 10 42 U.S.C. § 12201(a) . . . . . . . . . 11 42 U.S.C. §§ 12203(a), (b) . . . . . . . . .1, 23 REGULATIONS 29 C.F.R. § 1630.2(o)(3) . . . . . . . . . 16 MISCELLANEOUS EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002), http://www.eeoc.gov/policy/docs/accommodation.html . . 18 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2725 (3d ed. 1998) . . 9 Restatement (Third) of Agency 5.03 (T.D. No. 4, 2003) . . 13 STATEMENT OF INTEREST OF AMICUS CURIAE The Equal Employment Opportunity Commission is the agency established by Congress to interpret, administer and enforce the employment and anti- retaliation provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"), and other federal workplace anti-discrimination statutes. One of the ADA's key protections is the requirement that, absent undue hardship, employers must provide "reasonable accommodations to the known physical or mental limitations of an otherwise qualified [employee] with a disability." 42 U.S.C. § 12112(b)(5). Such accommodations help workers with disabilities compete on an equal basis with their non-disabled peers. See Felix v. N.Y. City Transit Auth., 324 F.3d 102, 107 (2d Cir. 2003) ("ADA mandates reasonable accommodation of people with disabilities in order to put them on an even playing field with the non-disabled."). In most instances, an employee must request an accommodation before an employer is obligated to provide it or begin the interactive process to identify an appropriate accommodation. This appeal raises important questions concerning what an employee must say to her employer to indicate she is requesting an ADA accommodation. Another critical component of the ADA is the prohibition against retaliation. See 42 U.S.C. §§ 12203(a), (b). Enforcement of the ADA depends, to a large degree, on the willingness of workers to assert their statutory rights and then to file a discrimination complaint with the EEOC if they believe they have suffered discrimination as a result. Retaliation by an employer can deter employees from exercising their statutory rights, thereby undermining the Act's effectiveness. This appeal raises the important question of whether Michele Freadman's requests for time off and to work at home constituted requests for ADA accommodations and, therefore, were "protected activity" for purposes of the ADA's anti-retaliation provisions. Because of the importance of these issues to the ADA's proper implementation, the Commission offers its views to this Court. STATEMENT OF THE ISSUES I. Whether Freadman's requests for time off and to work at home for one more day were sufficiently direct and linked to her ulcerative colitis to constitute requests for accommodation under the ADA. II. Whether Freadman's requests for time off and to work at home were "protected activity" for purposes of the ADA's anti-retaliation provision. STATEMENT OF THE CASE 1. Statement of Facts Plaintiff Michelle Freadman was hired by Metropolitan Property and Casualty Insurance Company in January 1993. Metropolitan promoted her to manager in 1995 and again in September 1998, expanding her responsibilities to include managing the "core functions" of training, compliance, and performance enhancement. Freadman v. Metropolitan Prop. & Cas. Ins. Co., Civ. No. 01-628 (D.R.I. March 31, 2004), Report & Recommendation of Magistrate ("R&R") at 5 (RA255).<1> At the time of her second promotion, her immediate supervisor, Assistant Vice-President Robert Smith, told her "people in the company thought highly of her," and "she had a bright future" and "stood a very good chance of making officer." Id. at 6 (RA256). Freadman became seriously ill with ulcerative colitis in March 1999 and was hospitalized for five weeks in March and April. Id. In May 1999, Smith visited Freadman while she was convalescing at home. During this visit and in telephone calls, Freadman told Smith that her illness was ulcerative colitis and she would need "certain changes [when she returned to work] in order to stay healthy," including working fewer hours and having fewer last-minute, time-driven assignments, adequate staff, and a better balance between her work and personal life. Id. "Smith agreed with [Freadman's] request for a better work/life balance and told [her] she worked too hard." Id. at 6-7 & n.4 (RA256-57). After a four-month medical leave, Freadman returned to work part-time on July 15, 1999. Id. at 7 (RA257). Her training, compliance, and performance enhancement duties were reassigned to other employees, and she was given a "little-known, low-profile project" known as "Ease of Doing Business" ("EDB"), a "temporary rotational assignment" supervised by Smith's boss, Senior Vice- President Chris Cawley. Id. Within weeks, Freadman resumed working full-time and then began working nights and weekends to keep up with the "high pressure projects" she was assigned, often with inadequate staff. Id. at 8 (RA258). In late March 2000, Freadman's "hardest working subordinate" left the company. See Plaintiff's Objection to R&R ("Pl's Obj.") at 2 (RA301). Freadman spoke to Smith about the urgent need to replace this employee so Freadman could avoid a recurrence of her illness. Freadman told Smith, in one conversation, "I'm basically killing myself to keep this on track, and I'm going to get sick again." Smith indicated he understood, and authorized Freadman to hire a replacement for the departing subordinate. R&R at 9 (RA259). A few days later, when Smith suggested Cawley might not approve the hiring, Freadman reiterated that she could not "possibly keep this project on track without the extra help, and without getting sick," to which Smith responded, "I know, I know." R&R at 9-10 (RA259-60). In May 2000, the company CEO, Cathy Rein, asked Freadman to give a presentation on EDB to company officers on June 9, 2000. Pl's Obj. at 3 (RA302); R&R at 10 (RA260). Although Freadman had been almost symptom-free since July 1999, Freadman experienced a recurrence of her ulcerative colitis and related symptoms in early June 2000. Id. During a meeting with Smith on June 2, Freadman advised him that she was working too hard and needed to take some time off because she was "starting not to feel well" and "some of [her] symptoms may be returning." Id. at 28 (RA278); see also Pl's Obj. at 3 (Freadman told Smith she was still working too hard, that she could not work long hours without having her symptoms return, and "asked for time off because her symptoms were returning") (RA302). Cawley, who was the executive sponsor of the June 9 presentation, RA302, later conceded that the presentation "was not time sensitive" and "could have been cancelled." Cawley deposition ("dep.") at 166 ("there were plenty of other topics that could have been covered at the June 9 officer meeting") (RA116) (cited in Plaintiff's Memorandum Objecting to Defendant's Motion for Summary Judgment ("Pl's S.J. Opp.") at 31 (RA185)); see also Pl's Obj. at 7 n.5 (undisputed that June 9 presentation could have been postponed) (RA306). Smith, however, "told her to just get through the presentation on June 9" and "then take your time off." R&R at 28-29 (RA278-79). Plaintiff gave the presentation on Friday, June 9. On Monday, June 12, Freadman came to work and told Smith, again, that she was not feeling well. Freadman indicated she was going to take two personal days and then work from home for the rest of the week. Id. at 13-14 (RA263-64). Except for a meeting at the office that Freadman attended on June 22, Metropolitan permitted Freadman to continue working at home until June 26. Id. at 14 (RA264); Defendant's Summary Judgment Reply Memorandum ("Def's S.J. Reply") at 13 (RA242). Shortly after the June 9 presentation, Freadman's superiors decided to alter her job duties. R&R at 14 (RA264). Smith said nothing to Freadman about the job reassignment while she was working at home. Pl's Obj. at 4 (RA303). On June 26, Freadman telephoned her administrative assistant, who knew she was having a flare-up of her colitis, to say that she was still ill and would be working from home again that day. See Freadman dep. at 90-91 (RA75-76). At Freadman's request, the assistant conveyed this message to Smith. Id. Smith called Freadman back and instructed her to come into the office. R&R at 14 (RA264). Freadman explained that she was "still sick" and asked if she could come in the next day, instead. Smith insisted she come in, stating that there were changes in the department that affected her. Smith told Freadman she had two choices: either come into work, or go on disability. Id. at 30 (RA280); Freadman dep. at 91-93 (RA76-78). Freadman complied with Smith's demand and came into the office. Smith met with Freadman and told her she was being reassigned from her present job (in the "management band") to a job in the technical career band that was less visible, reported to a manager two levels below Smith, had no managerial or duties or staff, and had a significantly lower salary range (although Freadman's salary remained the same). R&R at 15 (RA265). Freadman remained at work that day but went on sick leave starting the next day. She was hospitalized on June 29, 2000, for acute ulcerative colitis and remained in the hospital, on and off, for the next three months during which time doctors removed her colon. Id. at 16 (RA266); Pl's S.J. Opp. at 18 (RA172). 2. District Court Decision Freadman sued Metropolitan claiming violations of the ADA based on denial of reasonable accommodation, disparate treatment based on disability, and retaliation for having requested accommodation. Metropolitan moved for summary judgment, and the district court adopted the magistrate's recommendation that the court grant summary judgment on all of Freadman's claims. Freadman v. Metropolitan Prop. & Cas. Ins. Co., Civ. No. 01-628 (D.R.I. Feb. 14, 2006), Memorandum and Order ("Mem.") at 1 (RA365). The district court, like the magistrate, assumed without deciding that Freadman is disabled pursuant to the ADA and was able to perform the essential functions of her job, with or without accommodation. Id. at 2 n.1 (RA366). The court concluded, however, that Freadman's June 2 request for time off was not sufficiently specific or direct to constitute a request for accommodation under the ADA because it did not indicate that she sought time off (1) immediately rather than at some unspecified time in the future, and (2) because of her ulcerative colitis rather than some other, non-disabling illness. Id. at 2-6 (RA366-70). The district court concluded that Freadman's June 26 request adequately communicated the accommodation she sought-to work at home one more day- but did not adequately communicate that the reason for her request was related to a disability. Id. at 7-8 (RA371-72). The district court reasoned that "merely informing an employer that you are 'sick,' 'ill,' or 'not feeling well' is not sufficient, as a matter of law, to reasonably apprise an employer that those feelings are related to a specific disability." Id. at 8 (citing Brenneman v. MedCentral Health Sys., 366 F.3d 412 (6th Cir. 2004); Russell v. TG Missouri Corp., 340 F.3d 735 (8th Cir. 2003)) (RA372).<2> The district court also granted summary judgment on Freadman's retaliation claim. The magistrate, having concluded that Freadman's requests for time off were not "sufficiently linked to her disability so as to constitute a request for a reasonable accommodation," reasoned that the requests were also "not protected activity" and, as a result, Freadman did not satisfy the first element of a prima facie case of retaliation. See R&R at 48 (RA298). In her objections to the magistrate's Report and Recommendation, Freadman expressly incorporated by reference her prior arguments that her June requests were sufficiently linked to her ulcerative colitis to constitute ADA requests for accommodation. Pl's Obj. at 17 (RA316). The district court did not address these arguments again in discussing plaintiff's retaliation claim, but implicitly rejected them when it adopted the magistrate's recommendation. See Mem. at 12 (RA376).<3> ARGUMENT FREADMAN'S REQUESTS FOR TIME OFF AND TO WORK AT HOME WERE SUFFICIENTLY DIRECT AND LINKED TO HER MEDICAL CONDITION TO CONSTITUTE ADA REQUESTS FOR ACCOMMODATION AS WELL AS "PROTECTED ACTIVITY" UNDER THE ADA'S ANTI- RETALIATION PROVISION. A. Standard of Review This Court reviews a grant of summary judgment de novo, applying the same standards the district court was required to apply. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). If "the plaintiff's evidence is both cognizable and sufficiently strong to support a verdict in her favor," summary judgment is properly denied and "the factfinder must be allowed to determine which version of the facts is most compelling." Id. Similarly, when "'the facts support plausible but conflicting inferences on a pivotal issue in the case, the judge may not choose between those inferences at the summary judgment stage.'" McGurn v. Bell Microproducts, Inc., 284 F.3d 86, 93-94 (1st Cir. 2002) (citing Coyne v. Taber Partners I, 53 F.3d 454, 460 (1st Cir. 1995); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2725 at 433-37 (3d ed. 1998) ("[I]f the evidence presented on [a] motion [for summary judgment] is subject to conflicting interpretations, or reasonable people might differ as to its significance, summary judgment is improper."). B. Freadman's June 2000 Requests for Time Off and to Work at Home Constituted Requests for Accommodation Under the ADA. The district court erred in granting summary judgment on Freadman's reasonable accommodation claim because, taken in context and considering what Metropolitan already knew about her medical condition and her need for adjustments in her working conditions, Freadman's June 2 request for time off and her June 26 request to work at home for one more day were sufficiently direct and linked to her ulcerative colitis to constitute requests for reasonable accommodation under the ADA. The ADA prohibits employers from discriminating against an individual with a disability because of that disability. 42 U.S.C. § 12112(a). As this Court has noted, "federal statutes barring discrimination based on disability do more than merely prohibit disparate treatment; they also impose an affirmative duty on employers to offer a 'reasonable accommodation' to a disabled employee." See Calero-Cerezo, 355 F.3d at 19-20 (citing 42 U.S.C. § 12112(b)(5)(A)).<4> Thus, "[a]n employer violates the ADA if it 'knows of a disability yet fails to make reasonable accommodations.'" Estades-Negroni v. Assocs. Corp. of N. Am., 377 F.3d 58, 63 (1st Cir. 2004). Ordinarily, the ADA's reasonable accommodation requirement must be "triggered by a request." See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (internal quotations and citations omitted). The request need not be in writing, however, and there are no magic words that a disabled employee must say. See Fjellestad v. Pizza Hut of Am., 188 F.3d 944, 952 n.5 (8th Cir. 1999); Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 158-59 (3d Cir. 1999). The employee's request must simply be "sufficiently direct and specific" and "explain how the accommodation requested is linked to some disability." See Reed, 244 F.3d at 261 (internal quotations and citations omitted); Estades-Negroni, 377 F.3d at 64 (request must be "express" and "linked to a disability"). Freadman's June 2000 requests met these requirements. First, it is undisputed that Metropolitan knew Freadman had been hospitalized for five weeks with ulcerative colitis in mid-1999 and had required three additional months of recuperation at home before her return to work in July 1999. It is further undisputed that Metropolitan understood Freadman had requested more reasonable working hours and fewer time-driven deadlines upon her return, and Metropolitan acknowledged as much in its summary judgment motion below. See, e.g., Metropolitan's Memorandum in Support of Motion for Summary Judgment ("Def's S.J.Mem.") at 9, 12, 16 (RA130, 133, 137).<5> Nothing in the record suggests that Freadman's need for more reasonable working hours and fewer stressful assignments was only temporary. Indeed, the record indicates the opposite: when a hard-working subordinate resigned from Freadman's unit in March of 2000, Freadman expressly stated to Smith that if she were unable to replace the employee, it would create an additional workload burden on Freadman that might lead to her getting sick again. RA259-60, 301. Smith responded by acknowledging Freadman's concern and authorized her to hire a replacement on that basis. RA259-60. Smith's awareness of the seriousness of Freadman's condition and of her resulting need for adjustments in her job duties, which he expressly acknowledged as recently as March 2000, is imputed to Metropolitan. See Arrieta-Colon v. Wal-Mart Puerto Rico, 434 F.3d 75, 86 (1st Cir. 2006) (applying common law agency principles to determine employer's vicarious liability for co-worker and supervisor harassment under ADA); EEOC v. Wal-Mart Stores, 187 F.3d 1241, 1247-49 (10th Cir. 1999) (applying common law agency principles to determine employer's vicarious liability for punitive damages under ADA); Restatement (Third) of Agency 5.03 (T.D. No. 4, 2003) ("notice of a fact that an agent knows or has reason to know is imputed to the principal if knowledge of the fact is material to the agent's duties to the principal"). The purpose of requiring a plaintiff asserting a "failure to accommodate" claim under the ADA to show that the employer was aware of her disability and still failed to reasonably accommodate it is "dictated by common sense lest a disabled employee keep [her] disability a secret and sue later for failure to accommodate." EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 803 (7th Cir. 2005) (internal quotations and citations omitted). Here, however, Freadman's medical condition was no secret to Metropolitan. A reasonable person would understand that when Freadman asked Smith, on June 2, if she could take some time off because she was "starting not to feel well" and believed "some of [her] symptoms may be returning," she was not referring to some new, undisclosed ailment, but to her ulcerative colitis, the only illness that had caused her any "symptoms" within the recent timeframe.<6> A reasonable person would also construe Freadman's June 2 request as seeking time off right away, not at some unspecified point in the future. In fact, as Freadman argued to the district court, Pl's Obj. at 11 (RA310), Smith apparently viewed Freadman's request as reflecting a sense of urgency because he responded, not by asking when she would like to be absent, but by directing her to wait a week until after she gave the presentation on June 9 before taking time off.<7> A reasonable jury could infer from this exchange that Smith understood Freadman was seeking immediate time off, denied the request, and required her to work another week before permitting Freadman to attend to her declining medical condition. Therefore, Freadman's June 2 request was both sufficiently "express" and "linked to a disability" to constitute an ADA request for accommodation. See Estades-Negroni, 377 F.3d at 64.<8> Finally, a reasonable juror could conclude that, after having asked for time off because her symptoms were returning and having then been out of the office for two weeks (most of it working at home) following the June 9 presentation, Freadman's June 26 request that she be permitted to work at home for one more day because she was "still sick" was, again, a reference to her ulcerative colitis. Indeed, the reasonableness of such a conclusion is underscored by Smith's response to Freadman when he denied her request, telling Freadman either to come into the office or "go out on disability." The clear implication of Smith's comment is that if Freadman was too sick to come into the office, the illness must be serious enough to warrant going out on disability leave. Considered in context, a reasonable jury could infer that Smith either understood, or should have understood, that Freadman's June 26 request, like that of June 2, was necessitated by a flare-up of her ulcerative colitis. If Smith, notwithstanding that he knew Freadman had been seriously ill the prior year and had acknowledged Freadman's concerns about getting sick again from overworking as recently as March 2000, was uncertain what Freadman meant when she said she needed time off because she was "starting not to feel well" and "some of [her] symptoms may be returning," he was obligated under the ADA to begin the "interactive process" and ask Freadman to elaborate. See Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1284 (7th Cir. 1996) (if meaning of doctor's letter requesting "less stressful" position for plaintiff was unclear, employer should have asked plaintiff or his doctor for clarification). As this Court recently noted, when an employer is aware of an employee's disability, as Metropolitan was here, the employer "is expected to engage in a meaningful dialogue with the employee to find the best means of accommodating that disability." Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005) (emphasis added). EEOC's regulations reflect the same concept. See 29 C.F.R. § 1630.2(o)(3) (2005) (to determine an appropriate accommodation "it may be necessary for [an employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation").<9> The interactive dialog endorsed by this Court in Tobin, 433 F.3d at 108-09, is wholly absent in this case. When Freadman advised Smith on June 2 that she needed to take some time off, he responded that she could take time off after the presentation one week later, foreclosing any opportunity for Freadman to obtain the immediate respite she needed at that time. Metropolitan does not assert that Smith asked Freadman if she was able to proceed with the presentation or needed to have it postponed, nor does Metropolitan allege that Smith even asked Freadman if she could take some time off that week and still give the presentation on June 9.<10> Likewise, when Freadman informed Smith on June 26 that she was still sick and asked to work at home one more day, Smith, without any dialog, denied her request and told her either to come into the office or go out on disability. In both instances, Smith, acting as Metropolitan's agent, failed to engage in the interactive process and simply denied Freadman the accommodations she requested.<11> Metropolitan cannot avoid liability for this failure by arguing that it previously provided accommodations to Freadman. This Court has squarely held that "[t]he duty to provide reasonable accommodation is a continuing one . . . not exhausted by one effort." Ralph v. Lucent Techs., Inc., 135 F.3d 166, 172 (1st Cir. 1998) (citing Bultemeyer, 100 F.3d at 1285).<12> See also Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 265 (1st Cir. 1999) ("employer's provision of a specific accommodation . . . will not always be enough to satisfy the employer's duty under the law"); Criado v. IBM Corp., 145 F.3d 437, 444-45 (1st Cir. 1998) (granting disabled employee one-month leave of absence does not absolve employer of on-going duty to accommodate, particularly where additional leave requested is not expected to be prolonged or perpetual).<13> Significantly, in Tobin, although this Court concluded that Liberty Mutual had provided Tobin with a number of different accommodations, this Court nevertheless found that Liberty Mutual violated the ADA by failing to provide an additional accommodation that Tobin had requested. See 433 F.3d at 106-08. Tobin thus further highlights that the obligation to provide a reasonable accommodation is an on-going one that is not discharged upon the employer's first attempts. Consequently, it is incorrect, as Metropolitan impliedly argued below, that after Smith "altered Freadman's job duties in July 1999 at her request," Metropolitan's duty to accommodate Freadman was complete, and Smith thereafter was not required "to make any other accommodation." See Def's S.J.Mem. at 16 n.2 (RA137) (citing Phelps v. Optima Health, Inc., 251 F.3d 21, 28 (1st Cir. 2001)).<14> Given that an employer's duty to provide a reasonable accommodation under the ADA is on-going, it stands to reason that, when an employee requests an alteration in her work assignments or schedule because she is ill, the employer is charged with any knowledge it already has concerning the employee's medical condition and the types of general adjustments to the workplace that have been adopted in order for the employee to perform her job. See, e.g., Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995) ("[Although t]he ADA does not require clairvoyance[,] . . . . if an employee tells his employer that he has a disability, the employer then knows of the disability, and the ADA's further requirements bind the employer."). Whether Freadman's June 2 and 26 modest requests for time off and for permission to work at home constituted requests for reasonable accommodation under the ADA is, therefore, properly analyzed in light of the company's prior knowledge of Freadman's medical condition and her previous requests for fewer hours and less stress in the demands of her job. See Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003) (quantum of information required to establish that an accommodation was requested will often depend on what employer already knows).<15> When Freadman advised Smith in early June that she was working too hard (a reference to the fact that her return to work eleven months earlier had been premised on her need to work fewer hours), and when she indicated at the same time that she was "starting not to feel well" and believed that "some of her symptoms may be returning," a reasonable jury could readily infer that Smith should have understood Freadman was referring to a return of her ulcerative colitis. Freadman's situation is very different from Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997), on which the district court relied for the principle that "the employer is not put on notice of a present disability merely because an employee some years in the past has taken medical leave . . . ." RA370 (citing Soileau, 105 F.3d at 16 n.3). The plaintiff in Soileau had, four years earlier, taken a five-week medical leave for "stress" and then returned to work without claiming he had a disability and without seeking any accommodation. See id. at 14. Four years later, Soileau requested an ADA accommodation after he began to experience another acute episode, triggered by disciplinary action for performance deficiencies. This Court rejected Soileau's claim that the disciplinary action, which the employer took before Soileau asked for an accommodation, was in retaliation for Soileau's accommodation request, reasoning that Soileau's brief medical leave four years earlier did not even provide the employer with notice that Soileau had an on-going disability. Id. at 16-17. Here, on the other hand, Freadman's four-and-a-half month absence from work had just occurred the prior year. In addition, she had asked to work fewer hours and have fewer time-driven deadlines upon her return, and Metropolitan had altered her work assignments, allegedly to meet this request. Furthermore, two months before the June accommodation requests in question, Freadman discussed with Smith the possible recurrence of her symptoms because she was working too hard. Under these facts, the district court erred in concluding that Freadman's comments to Smith on June 2 and June 26 were not sufficiently linked to her ulcerative colitis. The other cases on which the district court relied, RA368-70, are similarly readily distinguishable. In two, the employer, in contrast to Metropolitan here, did not even know the plaintiff had a disability. See Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003) (decisionmaker unaware of plaintiff's back injury when she fired him for unrelated reasons); Reed, 244 F.3d at 260 (plaintiff never told employer she had a mental illness). In the others, the plaintiff, unlike Freadman, said nothing from which the employer could have determined that the plaintiff's absence from work was because of a serious medical condition. See Brenneman v. MedCentral Health Sys., 366 F.3d 412, 416, 419 n.4 (6th Cir. 2004), cert. denied, 543 U.S. 1146 (2005) (plaintiff had frequent absences unrelated to his diabetes, and did not tell employer that the absence in question was in any way related to his diabetic condition); Russell v. TG Missouri Corp., 340 F.3d 735 (8th Cir. 2003) (plaintiff's statement that she had to leave work because she was "not feeling well" did not apprise employer that she was experiencing anxiety attack). In sum, given Metropolitan's awareness of Freadman's ulcerative colitis as well as her need, when she returned to work in July 1999, for less stressful hours to avoid getting sick again, her June 2 request for time off because she was "starting not to feel well" and believed "some of [her] symptoms may be returning," and her June 26 request to work at home for one additional day because she was "still sick," were sufficiently direct and linked to her medical condition to constitute requests for reasonable accommodation under the ADA. The district court erred in concluding otherwise and granting summary judgment on that basis. C. Freadman's Requests for Time Off and to Work at Home Constituted "Protected Activity" for Purposes of the ADA's Anti- Retaliation Provision. The district court also erred when it granted summary judgment on Freadman's retaliation claim on the ground that her June requests for time off and permission to work at home did not constitute "protected activity" under the ADA's anti-retaliation provision. Under the ADA, it is unlawful for a person to "discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter." 42 U.S.C. § 12203(a). This Court has expressly construed this provision to encompass claims that an employer retaliated against an employee for requesting an accommodation under the ADA. See Wright v. CompUSA, Inc., 352 F.3d 472, 477-78 (1st Cir. 2003). Moreover, "[a]n ADA plaintiff need not succeed on a disability claim to assert a claim for retaliation" under the ADA. Wright, 352 F.3d at 477 (citing Soileau, 105 F.3d at 16); see also Guzman-Rosario v. United Parcel Serv., 397 F.3d 6, 11 (1st Cir. 2005) (retaliation is separate claim under ADA and does not depend on success of plaintiff's disability claim). Thus, regardless of the outcome of Freadman's claim that Metropolitan violated the ADA by not granting her accommodation requests, Freadman can advance a separate claim for retaliation based on Metropolitan's significant reduction of her responsibilities immediately after she requested time off after her ulcerative colitis symptoms began to return. To establish a prima facie claim of retaliation, a plaintiff must show (1) she engaged in protected conduct, (2) she suffered an adverse employment action, and (3) there was a causal connection between the conduct and the adverse action. Benoit, 331 F.3d at 177. Addressing the first element, the court ruled that Freadman's June requests were not "protected activity" under the ADA because they were not sufficiently related to her disability. This ruling is erroneous, however, for the same reasons that Freadman's requests for leave were sufficiently direct and linked to her disability to qualify as requests for ADA accommodation: the district court erred in failing to consider the larger context of what Freadman's supervisor already knew about the nature and severity of Freadman's medical condition and their recent conversations about Freadman's need to work less to avoid getting sick again. Specifically, Smith was fully aware that Freadman had been hospitalized the year before for five weeks due to ulcerative colitis and had then been out of work for an additional three months recuperating at home. Before returning to work, Freadman had informed Smith that she would need to work fewer hours and have fewer stressful deadlines at work to avoid getting sick again, and Smith had acknowledged and agreed to this request. Only a few months before the June requests, Freadman had discussed with Smith her need to replace a departing employee so she could avoid getting sick from working too hard, a direct reference back to the accommodations Freadman had requested and received when she returned to work the prior year. Freadman's June 2 request for time off must be considered in this larger context of what Metropolitan already knew. Additionally, where Freadman accompanied her June 2 request for time off with the statements that she was "starting not to feel well" and believed "some of her symptoms may be returning," the request for time off sufficiently referenced her disabling condition to constitute both a request for accommodation and "protected activity" for purposes of the ADA's anti-retaliation provision. Given that Smith thereafter authorized Freadman, starting on June 13, to take some time off and then work at home, Freadman's June 26 request to work at home one additional day because she was "still sick" was sufficiently related to her disability to constitute both a request for an ADA accommodation and protected activity for purposes of the ADA's anti-retaliation provision. CONCLUSION For all of the foregoing reasons, the EEOC respectfully submits that the district court erred in holding that Freadman's June 2000 requests for time off and to work at home were not requests for "reasonable accommodation" under the ADA. For the same reasons, the district court erred in holding that these requests were not "protected activity" under the ADA's anti-retaliation provision. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel ______________________________________ Dated: August 7, 2006 SUSAN R. OXFORD Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 (202) 663-4791 CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,449 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. 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 in 14- point Times New Roman for both text and footnotes. ______________________________________ Dated: August 7, 2006 Susan R. Oxford CERTIFICATE OF SERVICE I hereby certify that nine paper copies of the within Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae, and one copy of the same on a computer-readable disk, have been served on this 7th day of August, 2006, by Federal Express next-day-delivery, on the Clerk of the Court, U.S. Court of Appeals for the First Circuit. On this same date, two copies of the within brief have been served by the same means on each of the following counsel of record: Edward J. Juel, Esq. Law Office of Edward J. Juel 6 Beacon Street, Suite 600 Boston, MA 02108 Counsel for Plaintiff-Appellant Michele Freadman Steven E. Snow and Michael J. Murray, Esqs. Partridge Snow & Hahn, LLP 180 South Main Street Providence, RI 02903-7120 Counsel for Defendant-Appellee Metropolitan Property & Casualty Ins. Co. ___________________________________ Susan R. Oxford Attorney, U.S. EEOC 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 ************************************** <> <1> "RA#" refers to the page number in Appellant's Record Appendix. <2> The district court did not reach the magistrate's alternative conclusion that Freadman's June 26 request to stay home one more day was unreasonable. Mem. at 8 n.6 (RA372). <3> Notwithstanding that Metropolitan demoted Freadman only three weeks after her June 2 request for time off, the magistrate also reasoned that even if Freadman's requests met the first element of a prima facie case of retaliation, she failed to show "a causal connection between those requests and the adverse action" and, therefore, did not satisfy the third element of the prima facie case. R&R at 48 (RA298). The district court adopted this reasoning, as well. Mem. at 12 (376). <4> Section 12112(b)(5)(A) defines the term "discriminate" to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified [employee] with a disability" unless the accommodation "would impose an undue hardship on the operation of the business." Although Calero-Cerezo involved the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., the same legal principles apply to both the ADA and the Rehabilitation Act. Calero-Cerezo, 355 F.3d at 19; Bercovitch v. Baldwin Sch., 133 F.3d 141, 154 (1st Cir. 1998) (because ADA must be interpreted to provide at least as much protection as Title V of Rehabilitation Act, 42 U.S.C. § 12201(a), this Court has applied precedent interpreting Rehabilitation Act to ADA cases). <5> Freadman disputes Metropolitan's claim (RA137) that she received much of what she requested in 1999, asserting that after she returned to work in July 1999, her job was "even harder than it was before she became ill." Pl's S.J.Opp. at 30 (RA184) (emphasis added). <6> Metropolitan's argument below that Smith was not aware of Freadman's colitis flare-up in June 2000, RA134, is thus contradicted by Freadman's testimony that when she told Smith on June 2 that she needed some time off because she was "starting not to feel well," she further explained, "[S]ome of my symptoms may be returning." See R&R at 10, 28 (RA260, 278). <7> Significantly, Cawley conceded that the presentation was not time-sensitive and easily could have been rescheduled. See Cawley dep. at 166 (RA116). <8> Even if a jury could conceivably construe Freadman's June 2 request otherwise, summary judgment was wrongly granted since, "[i]n the context of summary judgment, . . . [the court] must respect the role of the factfinder to choose between alternative, reasonably supported inferences." Calero-Cerezo, 355 F.3d at 13. <9> This Court has stated that the EEOC's ADA regulations, although not controlling on this Court, "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 672 (1st Cir. 1995); see also Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 9 (1st Cir. 1999) ("Courts accord deference to all reasonable ADA interpretations by the EEOC, the agency charged with administering the ADA."); but see Calef v. Gillette Co., 322 F.3d 75, 85 (1st Cir. 2003) (declining to pass on validity of EEOC's regulations defining what constitutes a disability under ADA). <10> Since Smith had unequivocally directed Freadman to wait until after the June 9 presentation to take time off, Freadman was not obliged "to tell Smith that she could not wait until then and that she needed to take time off immediately," as the magistrate opined. See R&R at 30 (RA280). An employee is not required to quarrel with a supervisor who has denied a request in no uncertain terms. <11> Smith's apparent reason for denying leave the week of June 2 was the presentation Freadman was scheduled to give on June 9. Cawley admits, however, that there was no reason why Freadman's presentation could not have been rescheduled. See discussion at 5, supra. Smith's stated reason for requiring Freadman to come into the office on June 26 was to inform her of changes in the department that affected her, see discussion at 6, supra, but Metropolitan has never explained why, having allowed Freadman to work at home from June 15 to 26, see Def's S.J. Reply at 13 (RA242), she could not have worked at home for one more day, or why the information concerning her new assignment could not have been conveyed to her over the telephone or later that week. A reasonable jury could conclude, on this record, that Freadman's June 2 request for some time off and her June 26 request to work at home one more day were "reasonable" requests for which Metropolitan has demonstrated no "undue hardship." See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000) (reversing summary judgment for employer where Lederle offered no evidence that plaintiff's requested medical leave would have caused the company any undue hardship). <12> In Ralph, the defendant appealed the district court's order directing the company to permit the plaintiff to work part-time for a four-week trial period, arguing it had already accommodated the plaintiff by providing him with 52 weeks of paid disability leave (a benefit to which he was entitled under the employee benefit plan) and by changing his work assignment and supervisor upon his return. 135 F.3d at 171-72. Rejecting the defendant's arguments, this Court held that, notwithstanding any accommodations previously provided, the additional accommodation ordered by the district court was reasonable and in accord with the ADA. Id. <13> Other circuits have also endorsed this principle. See, e.g., Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1138 (9th Cir. 2001) (employer's obligation to engage in interactive process "extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed"); Cehrs v. Ne. Ohio Alzheimer's Research Ctr., 155 F.3d 775, 784 (6th Cir. 1998) ("duty to accommodate is 'a continuing one'") (citing Criado, 145 F.3d at 445). See also EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) at 22 & n.98 ("The duty to provide reasonable accommodation is an ongoing one . . . [and a]n employer must consider each request for reasonable accommodation . . . .") (citing Ralph, 135 F.3d 166), http://www.eeoc.gov/policy/docs/accommodation.html. <14> The facts in Phelps differ markedly from the present case. This Court found, in Phelps, that the employer initiated the interactive process promptly and offered several alternative positions to the plaintiff, but the plaintiff failed to cooperate in identifying an appropriate position. 251 F.3d at 27-28. <15> In Conneen, the Third Circuit rejected the plaintiff's accommodation claim because, although MBNA knew of her condition and initially accommodated it, the evidence later suggested the accommodation was no longer needed and Conneen not only failed to advise the company otherwise, she remained silent when the company expressly asked her if her psychiatric condition or her medication was causing her tardiness. See 334 F.3d at 331-33. ii