Appeal No. 11-1593 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. GREATER BALTIMORE MEDICAL CENTER, INC., Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Maryland The Honorable Richard D. Bennett, Presiding _________________________________________________________ REPLY BRIEF OF PLAINTIFF-APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _________________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov TABLE OF CONTENTS INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. GBMC fails to refute the Commission's argument that its enforcement actions cannot be barred by a charging party's context-related legal assertion of disability in an SSDI application. . . . . . . . . . . . . . . . . . 3 2. The SSA is aware of Turner's improved medical condition, and being able to work is fully compatible with the continued receipt of benefits. . . . . . 8 3. The EEOC properly raised its presumption argument, which is absolutely relevant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 4. A jury could find that Turner requested a reasonable accommodation and that GBMC failed to provide one. . . . . . . . . . . . . . . . . . . . . . . . 16 5. The district court never considered GBMC's direct threat argument, which is spurious. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 6. The EEOC did not waive its argument that Turner believed he was still disabled for the SSA's purposes because GBMC treated him that way. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-2 TABLE OF AUTHORITIES Cases Bragdon v. Abbott, 524 U.S. 624 (1999). . . . . . . . . . . . . . . . . . . . . . .27 Cleveland v. Policy Management System Corp., 526 U.S. 795 (1999). . . . . . . . 1, 15 Darcangelo v. Verizon Commc'n, Inc., 292 F.3d 181 (4th Cir. 2002). . . . . . . . . 27 EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000). . . . . . . . . . . 26 EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001). . . . . . . . . . . . . . . 23 EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000). . . . . . . . 3, 7, 22 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . . 4, 5, 6 EEOC v. Waffle House, Inc., 193 F.3d 805 (4th Cir. 1999). . . . . . . . . . . . . . 6 Holland v. Big River Minerals Corp., 181 F.3d 597 (4th Cir. 1999). . . . . 11, 13, 28 Heckler v. Comty. Health Services, 467 U.S. 51 (1984). . . . . . . . . . . . . . . 7 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). . . . . . . . . . . .25 Kiely v. Heartland Rehab. Servs., Inc., 359 F.3d 386 (6th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Matthews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . . . . 25 Pacific Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396 (4th Cir. 1998). . . 12, 13 Schneider v. Giant of Md., LLC, 389 Fed. Appx. 263 (4th Cir. July 26, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . 17 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). . . . . . . . . . . . 25 Taylor v. Phoenixville Sch. Dist., 296 F.3d 313 (3d Cir. 1999). . . . . . . . . . . 19 Turner v. Hershey Chocolate USA, 440 F.3d 604 (3d Cir. 2006). . . . . . . . . . . . 23 Tucker v. Waddell, 83 F.3d 688, 690 (4th Cir. 1996). . . . . . . . . . . . . . . 10 United States v. Taylor, 2 Fed. Appx. 379 (4th Cir. Jan. 26, 2001). . . . . . . . . 10 United States v. Ford, 184 F.3d 566 (6th Cir. 1999). . . . . . . . . . . . . . . 10 US Airways v. Barnett, 535 U.S. 391 (2002). . . . . . . . . . . . . . . . . . 24, 25 Voeltz v. Arctic Cat, Inc., 406 F.3d 1047 (8th Cir. 2005). . . . . . . . . . . . . .23 Volvo v. Constr. Equip. N. Am. V. CLM Equip. Co., 386 F.3d 581 (4th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . 11, 13 Statutes 42 U.S.C. § 423(d)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 42 U.S.C. § 12113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Regulations 29 C.F.R. § 1630.2(r). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 29 C.F.R. pt. 1630 app., § 1630.2(r). . . . . . . . . . . . . . . . . . . . . . . . 27 29 C.F.R. Pt. 1630., app. § 1630.9. . . . . . . . . . . . . . . . . . . . . . . . 17 Rules Fed. R. App. P. 29(a)(9)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Fed. R. App. P. 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim INTRODUCTION In its opening brief, the Commission argued that the district court erred in holding that Michael Turner's Social Security Disability Insurance (SSDI ) application and continued receipt of benefits precludes the EEOC from establishing that Turner was a qualified individual under the Americans with Disabilities Act (ADA), i.e., an individual who could have performed the essential duties of his job either with or without reasonable accommodation. The Commission first contended that the court erred in holding that an EEOC action can ever be barred under Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), by an individual's context-related legal representation of disability in an SSDI application. As set out in the Commission's opening brief, the district court's conclusion flies headlong into an established line of Supreme Court cases holding that the EEOC is not a proxy for the individuals for whom it sues but instead acts in the public interest. Accordingly, the EEOC cannot be estopped by a legal assertion of disability made by a charging party in an SSA proceeding that the agency had nothing to do with. The Commission additionally contended that, contrary to the court's conclusion below, EEOC v. Stowe-Pharr Mills, 216 F.3d 373 (4th Cir. 2000), does not compel a contrary conclusion. The Commission also argued that even if an EEOC action can be barred under Cleveland on the same terms as that of a private party, the court erred in granting summary judgment. A reasonable jury, we contended, could reconcile Turner's good-faith belief in his SSDI assertion of disability with the EEOC's subsequent assertion that Turner was qualified under the ADA in one of four ways. First, a jury could find that Turner's condition improved over time and that the Social Security Act (SSA) expressly provides that beneficiaries can keep their benefits while working in some circumstances-including through a trial-work period, a three-month grace period, and the "Ticket to Work" program, in which Turner voluntarily participated. Second, a jury could find that Turner could have worked with reasonable accommodation, which the SSA does not consider but the ADA requires employers to provide (absent undue hardship). Third, a jury could conclude that the SSA awarded Turner benefits based on a presumption that his impairment (necrotizing fasciitis) rendered him unable to work. Fourth, a jury could find that although Turner could have worked with or without reasonable accommodation, he had a good-faith belief that he was still disabled for the SSA's purposes and entitled to benefits because that is how GBMC treated him-as it refused to give him his job back or to rehire him, despite his dozens of applications and superlative work history-and because no other employer would hire him either. GBMC's response only superficially addresses the Commission's arguments. It fails to refute the Commission's contention that Supreme Court precedent and sound principles of public policy compel the conclusion that a charging party's context-related legal assertion of disability in an SSDI application does not bar an agency enforcement action. GBMC also fails to present a compelling argument as to why, even if the Commission must reconcile Turner's SSDI assertion of disability with the agency's ADA lawsuit, a reasonable jury could not do so any of the four ways the Commission suggested. And although GBMC contends that the Commission waived two of its arguments, both arguments were presented to, and ruled on, by the district court and were therefore preserved for appeal. Accordingly, this Court should reverse the district court's entry of summary judgment and remand this case for trial. GBMC can then be required to answer the government's allegations that it discriminated against the "Son of GBMC" when it refused to allow him to return from disability leave to the job that he loved, and then refused to rehire him for any of the 28 other positions he sought and was qualified for. ARGUMENT 1. GBMC fails to refute the Commission's argument that its enforcement actions cannot be barred by a charging party's context-related legal assertion of disability in an SSDI application. The Commission argued in its opening brief that a charging party's context- related legal assertion of disability in an SSDI application cannot bar an EEOC enforcement action. The Commission further argued that, contrary to the district court's conclusion, Stowe-Pharr Mills cannot be read as holding, even implicitly, that an EEOC action can be barred by an individual's assertion of disability to the SSA. Br. at 31-32. Specifically, the Commission argued that Stowe-Pharr Mills did not address the agency's argument on this point and that it was unnecessary for this Court to do so in light of this Court's conclusion that a jury could reconcile the charging party's SSDI statements with the agency's ADA lawsuit. Id. In response, GBMC insists that Stowe-Pharr Mills governs this case but fails to dispute that the opinion did not address, and did not need to address, the Commission's legal argument. The Commission also argued that EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), which was decided after Stowe-Pharr Mills, supports the Commission's argument because it reaffirmed the bedrock principle that the EEOC is not a proxy for the individuals for whom it seeks relief in holding that even a charging party's mandatory arbitration agreement does not preclude an EEOC enforcement action seeking victim-specific relief. Br. at 33. GBMC responds that "Waffle House . . . does not immunize the EEOC from all conduct of the charging party," as the Court stated that a charging party's "'conduct may have the effect of limiting the relief that the EEOC may obtain in court.'" Resp. at 14 (quoting 534 U.S. at 296). This argument does not advance GBMC's position. The Commission acknowledged that the Supreme Court stated in Waffle House that it "'was leaving open the question of whether a charging party's conduct (i.e., settlement or arbitration) could affect the EEOC's recovery.'" Br. at 33 (emphasis added). But, as the Commission explained, the Court also stated that "'it simply does not follow from the cases holding that the employee's conduct may affect the EEOC's recovery that the EEOC's claim is merely derivative' of the charging party's." Id. (quoting 534 U.S. at 297) (emphasis added). Here, we are not talking about what recovery the EEOC may obtain after trial for a charging party who received SSDI benefits. Instead, the issue is whether the EEOC's claim under the ADA can be barred at the courthouse steps by a charging party's assertion of disability in an SSA proceeding. On that point, Waffle House clearly counsels that it cannot. GBMC also tries to blunt the impact of Waffle House by asserting that the decision "made clear that Title VII and the ADA 'authorize the EEOC to obtain the relief that it seeks . . . if it can prove its case against the respondent.'" Resp. at 15 (quoting 534 U.S. at 287). This unremarkable proposition again fails to advance GBMC's position. The Commission has never suggested that it should be allowed to obtain relief without establishing a claim for discrimination, including, as to the prima facie case for an ADA action, that the charging party was a qualified individual. Instead, the Commission's argument is that because it is not a proxy for the individuals on whose behalf it sues, an individual's assertion in an SSA application of disability cannot estop the Commission from establishing that the individual is qualified. And, certainly, GBMC does not-and cannot-dispute the central premise of the Commission's argument, which is that the agency is not a proxy for the individuals on whose behalf it files suit. That is a principle that not only the Supreme Court, but this Court, recognized in EEOC v. Waffle House when this Court held that a charging party's arbitration agreement does not preclude an EEOC enforcement action. See EEOC v. Waffle House, 193 F.3d 805, 809 (4th Cir. 1999) ("Because of [its] public mission, the EEOC cannot be viewed as merely an institutional surrogate for victims of discrimination" and holding that the charging party's arbitration agreement therefore did not preclude the agency's enforcement action), overruled on other grounds, 534 U.S. 279 (reversing this Court's conclusion that a charging party's mandatory arbitration agreement precludes the EEOC from seeking victim-specific relief). GBMC also has no response to the Commission's argument, Br. at 36-37, that barring its enforcement actions based on a charging party's legal assertions of disability in SSA proceedings is contrary to public policy. The public does not benefit when an individual's receipt of SSDI benefits, which is often all that stands between an unemployed individual and indigency, precludes the government from enforcing the nation's anti-discrimination laws. To the contrary, such a result merely gives employers who discriminate a "get out of jail free" card through the happenstance, and good fortune, of having their unemployed victims prevail on a claim for disability benefits. To the extent GBMC suggests that such an outcome is justified because discrimination victims have been, or currently are, receiving SSDI benefits to which they are not entitled, this argument is unavailing. As the Commission explained, barring an EEOC action does not affect whether an individual continues to receive, or must repay, SSDI benefits. See Br. at 38. Rather, it is the SSA that retains the authority to terminate benefits and file an action for recoupment of benefits fraudulently obtained, see id., which the SSA has never seen fit to do in this case. The Commission also argued at page 36 of its brief that barring EEOC actions based on a charging party's SSA assertion of disability contravenes precedent from the Supreme Court and this Court holding that the federal government cannot be estopped on the same terms as a private litigant and that estopping the government undermines "'the interests of the citizenry as a whole in obedience to the rule of law.'" Br. at 36 (quoting Heckler v. Cmty. Health Servs., 467 U.S. 51, 60 (1984)). GBMC does not contest these bedrock principles but argues that they are inapplicable here because Cleveland was based on summary judgment principles rather than judicial estoppel. To be sure, as the Commission acknowledged, this Court stated in Stowe-Pharr Mills that "'Cleveland does not mandate analysis under the doctrine of judicial estoppel. The standard summary judgment framework is used instead.'" Br. at 36 n.7 (quoting 216 F.3d at 373). But it is hard to escape the conclusion that, whatever labels are used, principles of judicial estoppel animated the decision in Cleveland; the Court itself acknowledged that the Fifth Circuit decided the case on judicial estoppel principles. See Cleveland, 526 U.S. at 802. There can also be no question that the effect of Cleveland is to estop a party from proceeding with an ADA lawsuit where the plaintiff fails to adequately reconcile a context-related legal assertion of disability with a subsequent ADA lawsuit asserting that the individual was a qualified individual. Accordingly, the Commission's reliance on the long line of cases expressing reluctance to judicially estop the federal government is entirely relevant. 2. The SSA is aware of Turner's improved medical condition, and being able to work is fully compatible with the continued receipt of benefits. In its opening brief, the Commission argued that, pursuant to Cleveland, a jury could reconcile Turner's continued receipt of benefits with the EEOC's lawsuit by finding that Turner's condition improved over time. Br. at 40-43. GBMC responds that this argument fails because Turner "never notified the SSA that he was able to work or that his health improved." Resp. at 16. This is incorrect. As the Commission observed, Br. at 43 n.10, Turner informed the SSA via his voluntary enrollment in the "Ticket to Work" program that his health had improved such that he felt he could work. GBMC also suggests that Turner would have received a "Ticket to Work" earlier if he had earlier informed the SSA of his improved medical condition. Resp. at 17. But this argument fails to acknowledge the Commission's contention-with citation to the SSA's regulation and the record-that it appears that the SSA determines when to send out a "Ticket to Work" and that an individual cannot request one. Br. at 43 n.9. GBMC's argument is also unavailing because it is implicitly based on the premise that had Turner informed the SSA of his improved medical condition, he would no longer be entitled to benefits. As the Commission pointed out, however, the SSA has a number of ways-including the "Ticket to Work" program-by which an individual who is able to work, and even is working, can still receive benefits. Indeed, GBMC itself concedes that under the SSA an individual's improved medical condition makes his benefits "subject" to termination, implying that benefits are not automatically terminated when an individual's health improves. Resp. at 17. Here, it is undisputed that the SSA has continued to provide Turner benefits, despite knowing at least as of January 2009 that Turner's health had improved. Thus, at a minimum, a jury would be entitled to find that Turner's receipt of benefits after January 2009 was reconcilable with the EEOC's claim that he was qualified. 3. The EEOC properly raised its presumption argument, which is absolutely relevant. GBMC half-heartedly argues in a footnote, Resp. at 27 n.5, that the EEOC waived its argument that a jury could reconcile Turner's continued receipt of SSDI benefits with the EEOC's enforcement action if it were to find that Turner's award of SSDI benefits was based on a presumption, rather than a finding, that Turner was disabled under the SSA, i.e., that his medical impairment rendered him "unable to engage in any substantial gainful activity." 42 U.S.C. § 423(d)(1)(A). According to GBMC, the EEOC never raised this argument until the Rule 59(e) motion, which, GBMC contends, was too late. It is GBMC, however, not the Commission, that did the waiving of this issue by burying it in a footnote rather than developing it. See Fed. R. App. P. 28(a)(9)(A) (argument section must contain the party's "contentions and the reasons for them, with citations to the authorities"); United States v. Taylor, 2 Fed. Appx. 379, 381 (4th Cir. Jan. 26, 2001) (unpublished) (party's failure "to elaborate on this issue or present an argument on this claim" "waived appellate review of this issue"); Tucker v. Waddell, 83 F.3d 688, 690 n.1 (4th Cir. 1996) (failing to present argument in appellate brief waives appellate review); see also United States v. Ford, 184 F.3d 566, 578 n.3 (6th Cir. 1999) ("Even appellees waive arguments by failing to brief them."). Even if GBMC did not waive its waiver argument, this Court should reject it. As the Commission contended, the EEOC's trial attorney raised the presumption argument at the summary judgment hearing. Br. at 51 n.13 (citing JA675). While GBMC contends that "a plain reading of the transcript does not reveal the EEOC's claimed presumption argument," the transcript actually reveals exactly the opposite. Resp. at 27, n.5. Specifically, at the hearing the EEOC's attorney showed the court the "Disability Determination," pointed out the code "8.04," asserted that it "means that [Turner] had an infectious condition," and stated, "[t]hat's why he was qualified. It wasn't based on any statement of him saying I'm unable to work." JA675. Even if there were any question as to whether this statement was sufficient to raise the presumption issue, that question was resolved by the district court's Rule 59(e) order. In the order, the court addressed the EEOC's "generalized presumption" argument and stated, "[t]he claim that Mr. Turner's benefits were based on a medical determination is not a new argument by the EEOC. . . . The EEOC is merely restating matters previously considered by this Court." JA686-87 (emphasis added). Thus, the district court understood the EEOC to have already raised its presumption argument. But even if the EEOC had failed to raise the presumption argument before the court's summary judgment ruling, the presumption issue is properly before this Court. This Court has said that an issue presented for the first time in a Rule 59(e) motion "generally is not timely raised; accordingly such issue is not preserved for appellate review unless the district court exercises its discretion to excuse the party's lack of timeliness and consider the issue." Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999) (emphasis added); see also Volvo Constr. Equip. N. Am. v. CLM Equip. Co., 386 F.3d 581, 604 (4th Cir. 2004) (issue not raised by defendants but decided by the district court was properly raised on appeal). Here, it is undisputed that the EEOC raised the presumption argument in its Rule 59(e) motion and the district court ruled on it. See JA686-87. Therefore, this argument was properly preserved for appeal. GBMC argues to the contrary, citing Pacific Insurance Co. v. American National Fire Insurance Co., 148 F.3d 396, 403 (4th Cir. 1998). Pacific, however, is inapposite. In that case, the district court entered judgment for the plaintiff, who subsequently filed a Rule 59(e) motion to amend the judgment requesting monetary damages. Id. at 400. The defendant filed a response presenting a new argument on the merits. Id. The district court then denied the plaintiff's Rule 59(e) motion asking for monetary relief and later entered an order, based on the defendant's new argument, finding the plaintiff liable for monetary damages. Id. at 401. The plaintiff then filed a second Rule 59(e) motion arguing that the court had abused its discretion in denying the earlier motion. The district court eventually agreed, concluding that it had committed a clear error of law in denying the first Rule 59(e) motion because the only motion the court had before it at the time was the plaintiff's motion to amend the judgment to include a monetary award. Id. at 402. On appeal, this Court affirmed, explaining that "at the time the district court denied [the plaintiff]'s first Rule 59(e) motion to amend the judgment . . . to include a monetary award," the defendant "had not filed any motion requesting relief from the district court." Id at 403. This Court also reasoned that the district court acted within its discretion in granting the second Rule 59(e) motion because the defendant had not timely raised its new argument; this Court stated that Rule 59(e) "may not be used to raise new arguments." Id. at 404. Pacific is factually distinguishable from this case, as here the Commission raised its presumption argument in its own Rule 59(e) motion asking the court to reconsider its decision on the merits. As for Pacific's statement that Rule 59(e) may not be used to raise new arguments, that discussion was dicta, since this Court had already found that the defendant had never filed a Rule 59(e) motion requesting relief. In any event, the general proposition that Rule 59(e) is not intended to be a vehicle for raising new arguments is entirely consistent with Holland. But Holland also clarifies that where, as here, the district court exercises its discretion pursuant to Rule 59(e) to rule on a new argument, that argument is preserved for appeal. See also Volvo, 386 F.3d at 604. Seeming to concede the weakness of its waiver argument, GBMC also contends that "it is irrelevant whether the SSA presumed Mr. Turner was disabled" because Turner's award of benefits was based on his "statement that he is disabled and unable to work." Resp. at 27. GBMC further asserts that "unless an applicant states that he is unable to work he cannot receive benefits." Id. This argument is based on a fundamental misunderstanding of the law and a mischaracterization of what happened in this case. As the Commission's brief explains, it is entirely relevant whether the SSA's award of benefits was based on a presumption because Cleveland held that such a circumstance would allow a reasonable jury to reconcile an individual's receipt of SSDI benefits with an ADA lawsuit. Br. at 28; 51-52. The Commission also explained (as did the Court in Cleveland) that under the SSA's regulations, the SSA determines at the first and second steps of its five-step sequential analysis whether the individual is engaged in substantial gainful activity and whether the impairment is sufficiently severe. Br. at 26. If these steps are satisfied, the SSA determines at the third step whether the impairment meets or equals a listed impairment; if so, the SSA presumes the individual is disabled for the SSA's purposes (i.e., unable to engage in substantial gainful activity) and awards benefits, without going on to determine (in steps four and five) whether the individual can perform his "past relevant work" or any other work. Id. Thus, contrary to GBMC's assertions, an SSDI award of benefits based on a presumption-and the continued receipt of benefits based on that presumption-is not premised on a finding by the SSA that a particular individual is "unable to work." Rather, such an award means only that the individual was not currently working at the time of his application and has an impairment of such severity that the SSA presumes he is unable to work (doing his past relevant work or any other work). If this point were not already clear from the SSA's regulations, the Court in Cleveland observed that under the SSA's presumptions, "an individual might qualify for SSDI under the SSA's administrative rules and yet, due to special individual circumstances, remain capable of 'perform[ing] the essential functions.'" Cleveland, 526 U.S. at 804; see also Kiely v. Heartland Rehab. Servs., Inc., 359 F.3d 386, 390 (6th Cir. 2004) (jury could reconcile the plaintiff's assertion that he could perform the essential duties of his job with his SSDI application assertions that he was "disabled" and "unable to work" by finding that the plaintiff "applied for SSDI benefits on the basis of his legal blindness-a listed impairment-and not on the basis of an inability to work"). Thus, it is entirely relevant whether Turner's SSA award was based on a presumption. And the record in this case would fully support a jury's conclusion that it was. GBMC does not even dispute the Commission's argument that three pieces of record evidence give rise to a question of fact as to whether Turner's award was based on a presumption. See Br. at 52-55; Resp. at 26-28. As the Commission argued, that evidence includes the "Disability Determination" (which the Commission offered at the hearing and as an attachment to the Rule 59(e) motion), the "Case Analysis" (which GBMC submitted with its Rule 59(e) response), and Farmer's Affidavit (which the EEOC submitted with its Rule 59(e) reply). Significantly, GBMC does not contest the Commission's argument at pages 54-55 of its brief that the district court abused its discretion in refusing to consider Farmer's affidavit. Accordingly, GBMC has conceded that Farmer's affidavit should have been considered by the district court and is properly part of the record. See, e.g., Tucker, 83 F.3d at 690 n.1 (failing to present argument in appellate brief waives appellate review). And as the Commission argued, Farmer's affidavit would all but compel a reasonable jury's conclusion that Turner's award was based on a presumption, given Farmer's position at the SSA and her opinion, based on a review of the Disability Determination and the Case Analysis, that Turner's award was based on a presumption about his infectious skin condition. Br. at 53-54. Pursuant to Cleveland, a jury could then reconcile Turner's continued receipt of benefits with the EEOC's lawsuit. 4. A jury could find that Turner requested a reasonable accommodation and that GBMC failed to provide one. The Commission contended that a jury could reconcile Turner's continued receipt of SSDI benefits with the EEOC's lawsuit by finding that Turner could have worked with reasonable accommodation. Br. at 43-51. GBMC responds that the "EEOC attempts to shift the burden" of showing that Turner could perform the essential functions of his job with reasonable accommodation "by claiming that Mr. Turner never represented that he was unable to work with reasonable accommodation." Resp. at 19. It is not entirely clear what GBMC means by this. To be sure, the EEOC bears the burden of showing that Turner could perform the essential functions of his job, with or without reasonable accommodation. GBMC's main point here seems to be that no reasonable jury could find that Turner requested a reasonable accommodation. See Resp. at 19-22. As the Commission argued in its opening brief, however, that contention is without merit. The ADA requires employers to provide reasonable accommodation to the "known physical or mental limitations of an otherwise qualified individual with a disability." Br. at 44; 42 U.S.C. § 12112(b)(5)(A). As the Commission noted, and GBMC has also observed, the EEOC has interpreted the statute as meaning that "in general . . . it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." 29 C.F.R. Pt. 1630 app., § 1630.9; Guidance at p.24 (Q/A # 40). The Commission also explained, with citation to its guidance and case law, that an individual may use "plain English" in making a request for accommodation. GBMC does not dispute this basic principle, which this Court has also embraced. See, e.g., Schneider v. Giant of Md., 389 Fed. Appx. 263, 270 (4th Cir. July 26, 2010) ("The burden to provide notice is not an onerous one: the employee does not need to mention the ADA or use the phrase 'reasonable accommodation,' but need only inform the employer of both the disability and the employee's need for accommodations for that disability.") (citing EEOC v. Fed. Express Corp., 513 F.3d 360, 369 (4th Cir. 2008)). The Commission additionally contended, with citation to authority, that repeated and continuous attempts to remain employed can be requests for reasonable accommodation. Br. at 50. The Commission went on to argue that, notwithstanding Turner's statements in his deposition and EEOC forms that he did not need an accommodation, a reasonable jury could find that Dr. Rosenblum's January 23, 2006 note releasing Turner for part-time work constituted a request for reasonable accommodation. Br. at 47. GBMC does not take issue with the Commission's legal argument that a doctor's letter releasing an employee to return to work with certain restrictions can be a request for reasonable accommodation. See Br. at 47 (citing the EEOC's Guidance at p. 5 (Q/A # 2) and other cases). Instead, GBMC contends that the "uncontroverted evidence is that Mr. Turner was cleared to return to work based on a bogus medical evaluation." Resp. at 25. There are a number of problems with this argument. First, the footnote that GBMC cites on page 25 to support its contention that the January 23, 2006 release was "bogus" concerns the February 28, 2006 Return to Duty/Medical Restriction Form. Therefore, a jury would be entitled to find, at a minimum, that Turner requested a reasonable accommodation when he attempted to return to part-time work based on Dr. Rosenblum's January 23, 2006 release. A jury could also find that GBMC could have reasonably accommodated Turner by allowing him to return to his unit secretary position on a part-time or as-needed basis. As for the February 28, 2006 release, GBMC's argument is misplaced. The question is whether Turner requested a reasonable accommodation sufficient to trigger GBMC's duty to engage in the interactive process, not whether GBMC now thinks Turner's doctor should have done an in-person exam of Turner before filling out the Return-to-Duty form. See generally Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999) ("What matters under the ADA are not formalisms about the manner of the request [for accommodation], but whether the employee or a representative for the employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation."). Here, there can really be no question that Turner provided enough information to notify GBMC of his disability and need for a reasonable accommodation, especially as GBMC itself required the February 28, 2006 return-to-duty form following Turner's attempt to return to work with Dr. Rosenblum's January 23, 2006 release. GBMC's argument that the January 23, 2006 release is "bogus" and therefore did not qualify as a request for accommodation is also spurious. There is no evidence suggesting that GBMC thought at the time that Dr. Rosenblum (who formerly worked at GBMC as its Employee Health Physician) had submitted a "bogus" evaluation; rather, GBMC bases its "bogus" argument on deposition testimony taken years later. In any event, a jury would not be compelled to find that the release was "bogus" just because it was based on information conveyed by Turner's mother; that fact does not render the release-which imposed walking, standing, and lifting limitations but cleared Turner for part-time work- inaccurate. In fact, GBMC does not really dispute the accuracy of the restrictions contained in Dr. Rosenblum's release. It would be hard-pressed to do so, given Dr. Valle's own March 30, 2006 evaluation of Turner, which also released him for part-time work and noted some physical limitations. Thus, a jury could find that the February 28, 2006 form also constituted a request for reasonable accommodation and that GBMC could have provided an accommodation by either putting Turner in a part-time unit secretary position (if a jury found his restrictions compatible with that job), restructuring Turner's unit secretary job or assigning away marginal tasks if necessary, or reassigning him to a vacant position. See Br. at 49, at 10 (discussing other vacant positions that GBMC admits Turner could perform). GBMC's argument also misses the mark because a jury could find that Turner himself requested a reasonable accommodation. As the Commission's brief notes, Br. at 8, Turner expressed his "desire to return to work on a part time basis" when talking on April 24, 2006 with Roberts and Owen. JA368. While years later Turner may have told the EEOC that he had not requested a "reasonable accommodation," a jury would be entitled to find that he did request to return to work on a part-time basis, which is a reasonable accommodation, even if Turner did not realize it. GBMC's argument that Turner never requested an accommodation is also puzzling in light of its statement on page 25 that it "attempted to accommodate Mr. Turner with part-time work" compatible with Dr. Valle's limited release. Based on this statement, it appears that GBMC agrees with the Commission's argument that a jury could also find Dr. Valle's assessment constituted a request for reasonable accommodation. See Br. at 49. As the Commission argued, a jury could then rely on evidence as to the availability of vacant positions compatible with Dr. Valle's restrictions to conclude that Turner could have worked with reasonable accommodation, which would make his receipt of SSDI benefits reconcilable with the EEOC's lawsuit. GBMC also argues, however, that it "tried to accommodate Mr. Turner [but] he refused" by declining "to consider two file clerk positions" in June 2006, suggesting that this absolved GBMC of its duty to engage in the interactive process. Resp. at 26. In support of this assertion, GBMC cites JA601 and JA368. The citation to JA601 is to a page of Turner's "Remedy Form," which says nothing about any file clerk position. At JA368, Diane Owen refers to Turner's decision not to apply for a part-time file clerk position, which evidently was the opening in Dr. Hinton's office. As the Commission stated, Turner declined to apply for this position because it required using a ladder to access files and he was afraid of falling; it required mostly standing and walking (as opposed to the unit secretary position, which was primarily sedentary) and it did not utilize his skills. Br. at 9 (citing JA384; JA279-80). Turner's decision not to compete for this position- which was not even offered to him-does not satisfy GBMC's duty to provide a "reasonable" accommodation. More to the point, however, this argument goes to the merits of the EEOC's claim rather than to the question of whether a jury could reconcile Turner's receipt of benefits with the EEOC's claim that Turner could have worked with a reasonable accommodation. GBMC additionally contends that the EEOC is estopped from arguing that a jury could reconcile Turner's continued receipt of benefits with the Commission's enforcement action because "Turner never qualified his statement to the SSA that he was unable to work by telling [it] that he could work with reasonable accommodation." Resp. at 21. There is no legal support for this argument. To be sure, as GBMC contends, the charging party in Stowe-Pharr Mills had informed the SSA intake officer at the time of her application that she could work with reasonable accommodation. But nothing in this Court's opinion created a rule requiring that an individual qualify his SSDI application by saying he could work with reasonable accommodation as a prerequisite to reconciling a claim under Cleveland. To the contrary, a number of courts have explicitly or implicitly rejected such a requirement. See, e.g., Turner v. Hershey Chocolate USA, 440 F.3d 604, 610 (3d Cir. 2006) (pursuant to Cleveland, an individual's SSDI "statement of inability to work must be read as lacking the qualifier of reasonable accommodation"); Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 1050 (8th Cir. 2005) (affirming jury verdict where plaintiff stated in SSDI application "that he was unable to work" but "testified at trial that he could have worked with accommodation"). GBMC disputes that the ADA requires employers to reassign disabled employees to vacant positions, as the Commission argued in its opening brief with citation to en banc decisions from the Tenth and District of Columbia Circuits and to the Commission's guidance. Br. at 45. Rather, GBMC relies on EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001), to argue that where, as here, a company has a legitimate and non-discriminatory policy of hiring the most qualified applicants, it need not pass up a more qualified applicant in favor of a disabled employee. Resp. at 22-24. GBMC's reliance on Sara Lee is misplaced. In Sara Lee, this Court held that the ADA's reasonable accommodation standard does not require an employer to disregard its seniority policy. 237 F.3d at 353-55. In reaching that ruling, this Court reasoned that the ADA does not require employers to abandon legitimate and non-discriminatory policies, such as a seniority policy, and stated that "an employer must be able to treat a disabled employee as it would any other worker when the company operates a legitimate, nondiscriminatory policy" or else the ADA would become a "mandatory preference statute." Id. at 355. The Supreme Court, however, abrogated Sara Lee in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). In Barnett the Court held that in the ordinary run of cases a requested reassignment that conflicts with a seniority system will not be reasonable but that a plaintiff can present evidence of special circumstances that would "make 'reasonable' a seniority exception in the particular case." 535 U.S. at 394. In reaching this conclusion, the Court rejected the employer's argument-which underlies this Court's opinion in Sara Lee-that the ADA "does not . . . require an employer to grant preferential treatment" and therefore "does not require the employer to grant a request that, in violating a disability-neutral rule, would provide a preference." 535 U.S. at 397. According to the Court, this argument "fails to recognize what the Act specifies, namely, that preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal." Id. (emphasis added). Significantly, the Court also said that the plaintiff's request to be reassigned to a mailroom position as a reasonable accommodation would "normally" "be reasonable within the meaning of the statute" except that it would violate the employer's seniority system. Id. at 403. Thus, in short, Barnett recognized that preferences can be required under the ADA-even to override disability-neutral rules or policies-and that reassignment is "normally" a reasonable accommodation but for an employer's seniority system, as such systems have long occupied a special status under the law. Accordingly, Barnett strongly supports the Commission's long-standing position, which two circuits have embraced, that the ADA's reasonable accommodation provision requires that an employer reassign a qualified employee without requiring that employee to compete for the position. Any other reading of the statute would render meaningless the statute's definition of "reasonable accommodation" as encompassing "reassignment to a vacant position," as all employees-disabled and non-disabled-have the right to compete for a vacant position. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164-65 (10th Cir. 1999) (en banc) ("[I]f the reassignment language merely requires employers to consider on an equal basis with all other applicants an otherwise qualified existing employee with a disability for reassignment to a vacant position, that language would add nothing to the obligation not to discriminate, and would thereby be redundant."). Accordingly, the Commission urges this Court to conclude, if it addresses the issue, that employers must reassign qualified employees without requiring them to compete for vacant positions.<1> And given the record evidence as to the availability of vacant positions Turner could have filled, Br. at 9-10, a jury could reconcile Turner's receipt of benefits with the EEOC's action. 5. The district court never considered GBMC's direct threat argument, which is spurious. GBMC also tosses in an argument that Turner was not qualified to be a unit secretary because he posed a direct threat, as "he might be unable to respond in an emergency," suggesting that a jury would therefore be precluded from reconciling Tuner's receipt of benefits with the EEOC's claim that Turner could have worked as a unit secretary. Resp. at 25. GBMC never moved for summary judgment on this defense, and the court never ruled on it.<2> This Court should therefore decline to rule on it now. See generally Kiely, 359 F.3d at 391 (refusing to rule on the employer's direct threat defense where the district court had not done so). In any event, GBMC's direct threat argument provides no basis for affirming summary judgment. As this Court has acknowledged, the existence of a direct threat is a defense to be proved by the employer. See Darcangelo v. Verizon Commc'n, Inc., 292 F.3d 181, 188 (4th Cir. 2002). To prevail on the defense, an employer must show that an employee posed a "direct threat" to the health or safety of others or herself. 42 U.S.C. § 12113(a)-(b); 29 C.F.R. § 1630.2(r). The legal standard for establishing a direct threat defense is high. An employer must show that there is a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r) (emphasis added). "Significant" means a "high probability[] of substantial harm; a speculative or remote risk is insufficient." 29 C.F.R. Pt. 1630 app., § 1630.2(r). Thus, the key inquiry for the direct threat analysis is not "whether a risk exists, but whether it is significant." Bragdon v. Abbott, 524 U.S. 624, 649 (1999) (emphasis added). This record falls far short of meeting this high standard. GBMC offers no specifics on appeal as to how Turner posed a "significant" risk of "substantial" harm. Rather, GBMC vaguely contends that Dr. Valle determined that Turner "might be unable to respond in an emergency." Resp. at 25 (emphasis added). This speculation comes nowhere near meeting GBMC's burden of establishing its affirmative defense. To the contrary, the record definitively establishes that Turner was never a "first responder." Nothing in the unit secretary job description alludes to being responsible for responding to emergencies. JA313. Turner also testified that in his 22 years at GBMC there was never any emergency situation with a baby choking or a mother falling, as GBMC has previously suggested. JA277. Turner also testified that if a patient were to ring the call button reporting an emergency, he would tell the nurse or page her if she was not present. JA276-77. Nothing regarding Dr. Valle's concerns about Turner's physical ability to multi-task would in any way impede Turner's ability to react to a call-button emergency. Moreover, Dr. Rosenblum released Turner to work without restriction on May 15, 2006, giving rise to a factual issue about Turner's abilities that would be inappropriate to resolve on summary judgment. 6. The EEOC did not waive its argument that Turner believed he was still disabled for the SSA's purposes because GBMC treated him that way. Finally, GBMC argues that the Commission waived its argument that a jury could find that Turner reasonably believed he was still disabled under the SSA, and therefore entitled to continued benefits, because he remained unemployed and neither GBMC nor any other employer would hire him. Resp. 28. This contention is without merit. The EEOC raised this argument in its Rule 59(e) motion and the court ruled on it. See JA688-89 (rejecting this argument as speculative). As discussed, an issue raised for the first time in a Rule 59(e) motion is preserved for appellate review when the district court exercises its discretion to consider it. Holland, 181 F.3d at 605. CONCLUSION The EEOC respectfully requests that this Court reverse the district court's grant of summary judgment and remand this case for trial. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _____________________________ s/ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,997 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. ______________________________ s/ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov Date: October 14, 2011 CERTIFICATE OF SERVICE I certify that on October 14, 2011, I electronically filed this brief via the CM/ECF system, which will send notice to the counsel listed below. I also sent by overnight mail to the Court eight paper copies of the brief. Counsel for GBMC Lawrence J. Quinn Kristin P. Herber Tydings & Rosenberg LLP 100 East Pratt St., 26th Fl. Baltimore, MD 21202 (p) (410) 752-9700 (f) (410) 727-5460 ______________________________ s/ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov ********************************************************************************** <> <1> In arguing to the contrary, GBMC cites Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007), which implicitly rejected the Commission's position. But Huber did not address Barnett's recognition that preferences are sometimes necessary to achieve the ADA's goals. See 486 F.3d at 483-84. Significantly, the Supreme Court granted certiorari in Huber, but the parties voluntarily dismissed the case prior to briefing. See docket in Huber v. Wal-Mart Stores, Inc., No. 07- 480 (S. Ct.). GBMC also relies on EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000), but the EEOC has asked the Seventh Circuit to revisit this ruling. See Br. for the EEOC, EEOC v. United Air Lines, No. 11-1774 (filed July 19, 2011). <2> The EEOC filed a motion for partial summary judgment on GBMC's direct threat defense. R.42.