No. 10-30854 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________________________________ ROMMEL E. GRIFFIN, SR., Plaintiff/Appellant, v. UNITED PARCEL SERVICE, INC., Defendant/Appellee. _________________________________________________________ On Appeal from the United States District Court for the Eastern District of Louisiana _________________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF/APPELLANT AND IN FAVOR OF REVERSAL _________________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A REASONABLE JURY COULD FIND THAT THE DEFENDANT'S FAILURE TO ENGAGE IN THE ADA'S INTERACTIVE PROCESS WITH THE PLAINTIFF IN GOOD FAITH IN RESPONSE TO HIS REQUEST FOR A REASONABLE ACCOMMODATION LED TO ITS FAILURE TO ACCOMMODATE HIS DISABILITY, AND THEREBY VIOLATED THE ADA . . . . . . . . . . . .14 A.A Reasonable Jury Could Find that Griffin's Type II Diabetes Substantially Limits Him in the Major Life Activity of Eating Within the Meaning of the ADA. 15 B.A Reasonable Jury Could Find that UPS Failed to Engage in the ADA's Mandatory Interactive Process in Good Faith in Response to Griffin's Reasonable Accommodation Request, Resulting in UPS's Failure to Accommodate his Disability. . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Branham v. Snow, 392 F.3d 896 (7th Cir. 2004). . . . . . . . . . . . . . . .17-18 Carreras v. Sajo, Garcia & Partners, 596 F.3d 25 (1st Cir. 2010). . . . . . 19 Cutrera v. Bd. of Supervisors, La. State Univ., 429 F.3d 108 (5th Cir. 2005) . 22 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995). . . . . . . . . .16 EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606 (5th Cir. 2009). . . . . .passim Jenkins v. Cleco Power, LLC, 487 F.3d 309 (5th Cir. 2007). . . . . . . . . . . 23 Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). . . . . . . . . 19, 20 Nadler v. Harvey, No. 06-12692, 2007 WL 2404705 (11th Cir. 2007). . . . . . . .22 Rizzo v. Children's World Learning Ctrs., Inc., 173 F.3d 254 (5th Cir. 1999) . 23 Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . 18-19, 20 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . . . . . . . . 17 Taylor v. Principal Fin. Group, Inc., 93 F.3d 155 (5th Cir. 1996). . . . . 22, 23 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). . . . . . . . . 15 Waldrip v. Gen. Elec. Co., 325 F.3d 652 (5th Cir. 2003). . . . . . . . . . . . 15 STATUTES & RULES 42 U.S.C. § 12102(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . 14, 21 42 U.S.C. § 12117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12206. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 C.F.R. § 1630.2(h)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 15 29 C.F.R. § 1630.2(j)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 16 29 C.F.R. § 1630.2(o)(1)(ii). . . . . . . . . . . . . . . . . . . . . . . . . .21 29 C.F.R. Pt. 1630 app., § 1630.9. . . . . . . . . . . . . . . . . . . . . 21, 26 Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . 30 OTHER AUTHORITIES Centers for Disease Control & Prevention, Long-Term Trends in Diabetes, July 2009, available at http://www.cdc.gov/diabetes/statistics/slides/long_term_trends.pdf. . . . . . 16 Centers for Disease Control & Prevention, Nat'l Diabetes Fact Sheet, 2007, available at http://apps.nccd.cdc.gov/DDTSTRS/FactSheet.aspx. . . . . . . . 16-17 Francesco P. Cappuccio et al., Quantity and Quality of Sleep and Incidence of Type 2 Diabetes, 33 Diabetes Care 414, 419 (2010). . . . . . . . . . . . . .27 EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html. . . . . . . . . . . . . . .24 Anke van Mark et al., The Impact of Shift Work Induced Chronic Circadian Disruption on IL-6 and TNF-a Immune Responses, Journal of Occupational Medicine & Toxicology 5:18, 4 (2010). . . . . . . . . . . . . . . 27 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission ("EEOC") is charged with the interpretation and enforcement of Title I of the Americans With Disabilities Act of 1990 ("ADA"), which prohibits employment discrimination based on disability. See 42 U.S.C. §§ 12117, 12206. The district court in this case held that the plaintiff presented insufficient evidence for a jury to find that his Type II insulin-dependent diabetes is a disability within the meaning of the ADA, or that United Parcel Service, Inc. ("UPS") failed to offer him a reasonable accommodation for his disability. In so ruling, the district court misapplied the governing precedent of the Supreme Court and of this Court for determining when reasonable accommodation is warranted. Because this case raises important questions about the evidence necessary to support a finding that an individual is disabled under the ADA, as well as the proper analysis of whether an employer has met its obligation to provide a reasonable accommodation, the EEOC offers its views to the Court. STATEMENT OF ISSUE<1> Whether a reasonable jury could find that the defendant's failure to engage in the ADA's interactive process with the plaintiff in good faith in response to his request for a reasonable accommodation led to its failure to accommodate his disability, and thereby violated the ADA. STATEMENT OF THE CASE A. Statement of the Facts The plaintiff, Rommel E. Griffin, Sr., worked for UPS in various capacities from 1978, when he was hired to deliver packages, through December 2006, when he officially retired from the position of Hub Manager of the UPS Center on Morrison Road in New Orleans, Louisiana. ROA-3202;3246-47.<2> Griffin was diagnosed with Type II diabetes in approximately 1998, at the age of 47. ROA-3237. For the first few years after his diagnosis, Griffin was able to control his diabetes with oral medication, but by 2004 he also required daily injections of long-acting insulin, which continue to this day. ROA- 3083;3238;3253. His insulin dosage was increased again in November 2006 due to high blood sugar values on tests administered over several weeks. ROA- 3084;3238. Griffin also testified that he had to adjust his schedule of insulin injections to begin injecting at bedtime (10-11:00 p.m.) instead of in the morning because he had trouble managing his blood sugar levels with a morning injection regimen. ROA-2825;3238. Griffin tests his blood sugar levels via finger prick several times a day. ROA-3238. His condition also requires constant vigilance regarding what he eats (particularly balancing protein and carbohydrates), when he eats, and how much he eats, which requires him to keep a consistent schedule that permits him to eat meals and snacks within a particular range of time each day. Id.; ROA-2865. Dr. Fridge Cameron, Griffin's treating physician, testified that Griffin: should be on a regimen as strict as he can to be sure that he eats his three meals a day plus snacks if he needs them. He should try to be on the same time schedule, ... eat breakfast the same time every morning, eat lunch the same time, have dinner the same time, try to go to bed roughly the same time, keep everything in a routine and orderly fashion as much as they can. ROA-2712;2713. Griffin testified that when he does occasionally eat too large a meal, skip a meal, or eat too many carbohydrates or not enough protein, he begins to perspire and his skin becomes balmy, and frequently his vision becomes blurry. ROA-3239. Despite his best efforts, Griffin has not been able to bring his blood sugar or A1C levels within the range set by his physicians or that recommended by the American Diabetes Association. ROA-3239. According to Dr. Tina Thethi, an endocrinologist and one of Griffin's treating physicians, further complications of Type II diabetes include eye problems, nerve problems, heart problems, damage to the GI tract, stomach problems, erectile problems, and problems with lipodystrophy from self-administered insulin shots. ROA-3079. Thethi also testified that diabetes can be fatal if not properly controlled. ROA-3080. For a period of approximately two years, beginning in April 2004, Griffin held the position of "Twilight Hub Manager" of the UPS Hub operation on Morrison Road. ROA-3246. He worked from approximately 2:00 p.m. until between 10:00 p.m. and midnight. ROA-3240. According to Roman Williams, the Human Resources Manager for the Gulf South District, a Hub Manager is "responsible for the hub operations which is like the spoke that would distribute packages from their hub throughout ... the region .... [T]heir operation was mainly load trailers and send them to destinations so they could hit those centers to be able to deliver the packages locally." ROA-3141. When the Twilight Hub Manager leaves for the evening, the Midnight Hub Manager takes over and works at the Hub throughout the night. ROA-3141-42. Williams testified that there is no difference between the two positions "other than the time that they work." ROA-3142. Griffin performed well as Twilight Hub Manager, earning a performance evaluation of 93.2 for 2004. ROA-3247. In late August, 2005, Hurricane Katrina hit New Orleans, with devastating results for Griffin's life at home and work. His home in Gentilly, Louisiana, flooded with more than six feet of water, and Griffin and his wife relocated to Geismar, Louisiana, approximately fourteen miles east of Baton Rouge. ROA- 2827-28;3237;3240-41. UPS's Morrison Road location also flooded, and working conditions were unusually difficult due to understaffing, the loss of experienced employees after the storm, and the presence of many new and inexperienced workers at the facility. ROA-3241. Furthermore, after Katrina, meals were no longer as readily available for Griffin in the neighborhood as before, nor could Griffin's wife bring him meals, as they had relocated farther away. ROA-3240-41. By October 2005, Griffin testified that he was experiencing numbness in the left half of his head and face, radiating pain in his arms, and chest pains. ROA- 2858;3241. The symptoms continued on and off for several months, and culminated in Griffin's decision to take a medical leave of absence in March 2006. ROA-2864;2866. Dr. Cameron determined that Griffin's symptoms were stress- related, and he referred Griffin to an outpatient behavioral medicine program at West Jefferson Medical Center that lasted from April through June 2006. ROA- 2864;3242. Griffin testified that he learned a great deal from the program about the proper management of his diabetes: [T]he times that I was eating, it was so key that ... I was able to start my meals with adequate spacing throughout the day, ... within a reasonable amount of time, 30 minutes to an hour window, I tried to have that next meal. So if I had a meal at 8:00, somewhere between 12:00 and 1:00 [] it was important for me to have another meal. And, in addition to that, having to test blood sugars numerous times throughout the day, and they kind of drove about where I was in terms of numbers and whether I needed to eat a little more if the sugars were lower, try and eat a little less if it was- ... and try and balance that. ...[At the Behavioral Medicine program, t]hey were so keen on routines, ... [w]hen you wake up, when you do this, when you do that, when you go to sleep, and those routines had been so well established, it was just excitement [sic] to know that this is a sickness that I'm going to have to live with for the rest of my life, but there is a way to manage it. [I]t was so key to have all of my eating and all of my medication done and then look forward to a period at night where I can go to sleep, because that was another key component that they talked about during that period. ROA-2865-66. Griffin was discharged from the program on June 21, 2006. ROA- 2867;3252. The next day, he reported back to Geraldine Haydon, then the Occupational Health Manager of UPS's Gulf South District, providing her with two documents. ROA-2874;2875;3242. The first was a letter dated June 21, 2006, from Christine Meche, the Adult Services Program Manager for the Behavioral Medicine Center, which stated as follows (ROA-3252): It is the recommendation of the treatment team here ... that Mr. Rommel Griffin be acclimated back in to [sic] work on a less than full-time schedule. It is recommended he be allowed to work four hours per day the first week, then six hours per day the second week. He could then work full-time on his third week. The second document was a page of treatment notes from Dr. Cameron, which included the following "Plan notes" (ROA-3253): Is ok to return to work on 6/22/06 if ok with Behavioral Medicine-he would be best severed [sic] if he worked Day hrs-as this would help him control his diabetes .... Griffin had hoped to return to his original Twilight Hub Manager position, but Williams informed him that the position had been filled. ROA-2876-77. Williams told Griffin that he was working on obtaining authorization for a Hub Training Manager position, a position that existed in other UPS districts, and for which the working hours would be from 4:00 or 5:00 p.m. to between midnight and 2:00 a.m. ROA-2874-75;3149-50;3242. Ultimately, Williams could not obtain authorization for the new position, and on approximately August 22, 2006, Griffin was informed that he would be assigned to the position of Midnight Hub Manager, working from 10:00 or 11:00 p.m. to between 5:00 and 7:00 a.m. ROA- 3150;3243. Based on his previous experience managing his diabetes and his doctors' advice, Griffin did not believe that he could manage his diabetes successfully working a midnight shift during the week while maintaining a daytime schedule on weekends, holidays, and vacations. ROA-3243;3245. As Dr. Cameron testified at his deposition: "If [a diabetic patient] continued working only at night and never had to go back and shift and go back and work, ... at some point in time he's going to have days off and he's going to be at home and his family's going to be awake during the daytime and he's going to want to be awake during the daytime, and the days that he's off and not working, his schedule will be different. Then when he goes back and works nights again, he had to get back on his night schedule and his diabetic management would not be as good.... [Diabetic patients who work a nighttime schedule] are much more difficult to treat." ROA-2716-17;2719. On August 24, 2006, Griffin wrote Williams a letter expressly requesting an accommodation for his medical condition, noting his doctors' request that "scheduled work [be] adjusted to daytime hours as a plan to control medical condition," and referencing the records submitted to Haydon on June 22, 2006. ROA-3254. Griffin testified that, when he gave Williams the letter, Williams responded, "Well, this changes everything, ... because if I put you back to work, you're going to be a liability to UPS." ROA-2880. Griffin was then instructed to submit to an examination by a physician chosen by UPS, Dr. Yuruk Iyriboz. ROA-2975. That examination occurred on August 28, 2006, pursuant to which Dr. Iyriboz reported: "Can work as a supervisor/manager preferably during daytime since he is insulin dependent diabetic, w/reflux and hypertension." ROA-3271. Griffin heard nothing further about his request until he received a letter, dated September 20, 2006, from Sherry Anderson, UPS's District Workforce Planning Manager. ROA-3256. The letter stated that, on September 19, UPS had "received notification that you requested a job-related accommodation because of a self-reported physical or mental condition," and enclosed a form, titled "United Parcel Service Request for Medical Information," to be completed by Griffin's physician, along with a one-page sheet listing the essential functions for the position "Non-Operations Specialists/Supervisors/Managers/unless otherwise listed." ROA-3257-60. The Request for Medical Information ("RMI") asked the physician to answer seven questions, including whether the employee is "currently able to perform all of the physical and mental functions of his/her position," has any impairment that "precludes or impairs the employee's ability to perform the specific job function(s) identified," and, in question 5, "Do any of the impairment(s) identified in Question 3 substantially limit the employee's ability to perform any major life activities other than working (e.g., caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, lifting, learning, etc.)?" ROA-3257-59. The attached list of essential functions was a generic list setting out the range of tasks that supervisory and managerial employees at UPS were expected to perform; it made no specific reference to a given shift, time of day, or particular position. ROA-3260. Dr. Cameron completed Griffin's RMI on November 6, 2006. ROA-3259. He indicated that Griffin was able to perform all of the functions of his position and that he had no impairment that precluded or impaired his ability to perform specific job functions. ROA-3257-59. He answered question 5 "no," then signed and dated the form at the bottom. Id. The next day, November 7, 2006, Griffin went to see Dr. Tina Thethi, an endocrinologist at Tulane University Medical Center. Dr. Thethi testified that she examined Griffin on that date, ordered various lab tests, and increased his dosage of long-acting insulin in response to "a time period over the past few weeks where the patient had blood sugars more than 200." ROA-3077;3084. On the same date, Dr. Thethi wrote Griffin a note on her prescription pad stating that "Patient would be in a better position to follow his therapeutic regimen for diabetes, if working morning hours." ROA-3076;3261. Dr. Thethi also testified at her deposition that "consistent sleep patterns can lead to consistent blood sugars," while "counterregulatory hormones are released at different times [] when the sleep pattern is not the same[.] The [] pattern of secretion of the counterregulatory hormone is also disturbed." ROA-3094. On November 13, 2006, Griffin returned the completed RMI to Haydon along with a letter and three attachments. ROA-3265. In the letter, he stated: After reviewing the form, it is evident that the information supplied by my medical providers validate [sic] that the information requested does not apply to my medical condition. Again I state that I am an insulin dependent diabetic and this medical condition, if not managed effectively, can result in disabilities to include but not limited to, blindness, loss of limbs, kidney and heart disease, to name a few. My diabetes is a condition that does not have to be a disability if I manage it properly, but to do so I will need UPS to make the accommodation to permit me to work days. As you can see, in the attached documents from three independent medical providers each has recommended that daytime work would provide the optimum opportunity for me to effectively manage my medical condition. Id. Along with the letter and RMI, Griffin attached Dr. Cameron's report of June 21, 2006, Dr. Iyriboz's report of August 28, 2006, and Dr. Thethi's recommendation of November 7, 2006. ROA-3266-72. In a letter from Anderson dated November 16, 2006, ROA-2893;3275, UPS stated it had considered Griffin's accommodation request and, based on the medical information it had received, it was "unable to conclude that you are eligible for a reasonable accommodation pursuant to the Americans with Disabilities Act." ROA-3275. Thelma Lee, who worked as an Occupational Health Manager for UPS from October 2006 through February 2008, testified that she reviewed Griffin's accommodation request. ROA-2995;2998;3002. Lee testified that she reviewed only the documents in Griffin's file in connection with his request. ROA-2998;3027-29. She testified that she gave no consideration to whether Griffin's request pertained to working a particular shift, and that in fact she didn't even know what hours he was being asked to work. ROA-3000;3005. Rather, according to Lee, she confined her inquiry to "looking at if this individual falls under the ADA for a job accommodation according to his medical records that I receive from his treating doctor." ROA-3000. Lee also testified that she requested no further medical information from any of Griffin's physicians regarding his condition or the regimen he had to follow because of his diabetes. ROA-3004. Griffin responded to Anderson in a letter dated December 1, 2006, copying Williams and Haydon. ROA-3276. In his letter, he noted that he "was and still am very disappointed with the letter that I received from UPS dated November 16, 2006." Id. He documented several unsuccessful attempts to communicate with Anderson, and further wrote: I reported to UPS on June 22, 2006 after a covered leave of absence, highly motivated and driven with a desire to return to work. Due to a medical condition I made a request for daytime work to help me manage my medical condition. My request was supported by recommendations from three medical providers, one being a medical doctor representing UPS. At the time of my return, there was a job available in the Human Resources Group held by Gerald Barnes who had been granted relocation accommodations to Atlanta, Ga. My twenty plus years of working in investigations, claims, internal and external customer service issues and my people skills made me a qualified candidate for this position, but I was denied that opportunity also. UPS made no reasonable attempt to comply with my request but instead presented a series of delays and continue [sic] even now to deny me an opportunity to return to work and continue my employment. Based upon the letter received on November 16th and having had my income suspended for the past months, I am regretfully submitting to UPS' strategy to force me into retirement....(Id.) Griffin never heard anything further from UPS and eventually filled out his retirement paperwork before the end of the year. ROA-2884. B. District Court's Decision After reviewing the factual background of the case and the basic legal standards governing ADA cases, the district court turned to the issue of whether Griffin was disabled under the ADA. ROA-3413. The court rejected Griffin's allegation that his diabetes substantially limited him in the major life activity of eating, observing: [N]one of the doctors have stated that Plaintiff cannot keep his diabetes or his diet under control if he were to work the midnight shift. In fact, aside from his own testimony, Plaintiff has not provided evidence to prove that his diabetes substantially limits his ability to eat. Plaintiff is essentially arguing that it is possible that his diabetes could have a substantial impact on his eating; such an argument is not sufficient to survive summary judgment. ROA-3414. Accordingly, the district court found, because Griffin could not prove that he was disabled within the meaning of the ADA, he could not establish a prima facie case of discrimination and summary judgment was warranted as a matter of law. ROA-3415-16. The district court then went on to observe that "even if Plaintiff were able to establish a prima facie case of discrimination, ... this court would still be required to grant Defendant's motion for summary judgment." ROA-3416. Noting this Court's holding that "the McDonnell Douglas burden-shifting analysis applies to claims brought under the ADA," the district court found that UPS had "articulated legitimate, non-discriminatory reasons for its actions" in that Griffin's previous position had already been filled by another employee and UPS was unable to get funding for a new position, while Griffin did not accept the "comparable position at a later shift" offered by UPS. ROA-3416-17. According to the district court, the burden therefore shifted to Griffin "to prove by a preponderance of the evidence that these reasons are pretextual," but he failed to make any arguments, allege any facts, or adduce any evidence as to pretext. ROA-3417. Thus, the court stated, "even if Plaintiff were to make a prima facie case of discrimination, his ADA claims should be dismissed." Id. ARGUMENT A REASONABLE JURY COULD FIND THAT THE DEFENDANT'S FAILURE TO ENGAGE IN THE ADA'S INTERACTIVE PROCESS WITH THE PLAINTIFF IN GOOD FAITH IN RESPONSE TO HIS REQUEST FOR A REASONABLE ACCOMMODATION LED TO ITS FAILURE TO ACCOMMODATE HIS DISABILITY, AND THEREBY VIOLATED THE ADA. Section 102 of the ADA makes it unlawful for an employer to fail to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an ... employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business or such covered entity." 42 U.S.C. § 12112(b)(5)(A). There is sufficient evidence in the record to support a finding that Griffin was a qualified individual with a disability who requested a reasonable accommodation, but that UPS failed to give good-faith consideration to his accommodation request. Instead, UPS used a generic and misleading form that solicited a mistaken legal conclusion from Griffin's treating physician to declare him non-disabled and therefore not entitled to an accommodation. A.A Reasonable Jury Could Find that Griffin's Type II Diabetes Substantially Limits Him in the Major Life Activity of Eating Within the Meaning of the ADA. The ADA defines "disability" as, in relevant part, "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. § 12102(2)(A). There is undisputed evidence in the record that Griffin has Type II diabetes, a physical impairment under the ADA. See 29 C.F.R. § 1630.2(h)(1) ("impairment" includes physiological disorders affecting the endocrine system). Accordingly, the only remaining question for coverage purposes is whether that impairment substantially limits Griffin in a major life activity. E.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002); EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 614-15 (5th Cir. 2009). Based on the record evidence, a reasonable jury could find that Griffin is substantially limited in the major life activity of eating because he is significantly restricted in his ability to eat compared to the average person in the general population. This Court has held that eating is a major life activity under the ADA. Waldrip v. Gen. Elec. Co., 325 F.3d 652, 655 (5th Cir. 2003). As this Court has observed, the EEOC's implementing regulations counsel that "[w]hether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact." Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995) (citing 29 C.F.R. § 1630.2(j)(2)). As to severity, the record evidence would support a jury finding that Griffin's diabetes is under poor control even with the mitigating measures of oral insulin and insulin injections, controlled diet, and exercise; he must be constantly and extremely vigilant to eat a careful balance of protein and carbohydrates throughout the day based on the finger-prick tests he conducts several times a day. See supra pages 2-3. The district court was simply wrong in stating that the only evidence in this regard was Griffin's own testimony. E.g., ROA-2712-14;3084;3087;3090. According to the most recent data available from the Centers for Disease Control, as of 2008, the total number of diagnosed diabetics in the U.S. was 18.82 million, or 6.29% of the total population. CDC, Long-Term Trends in Diabetes, July 2009, at 5.<3> Regarding treatment, the CDC reports that, among diagnosed diabetic adults, only 13% take both insulin injections and oral medication to manage their diabetes, as Griffin does. CDC, National Diabetes Fact Sheet, 2007, at 2.<4> A reasonable jury could therefore find, based on the evidence in the record, that Griffin is substantially limited in eating compared with the average person in the general population and, in fact, compared with the majority of his fellow diabetics. As to the duration of his condition, the uncontroverted testimony in the record is that Griffin expects, and his doctors have told him, that he will be managing his diabetes "for the rest of his life"; no physician has stated or testified that they expect his condition to be reversible. ROA-2865;2867. Finally, Griffin and his doctors testified extensively about the impact of Type II diabetes, and of the measures he must take to manage it, on Griffin's life, as well as the potential impact of his condition if he fails to get his diabetes under control in the long term. See supra pages 2-6; Sutton v. United Air Lines, Inc., 527 U.S. 471, 484 (1999) (observing that courts should consider "any negative side effects suffered by an individual resulting from the use of mitigating measures"). Other federal courts of appeals have recognized that summary judgment was inappropriate on coverage questions regarding diabetic plaintiffs alleging a substantial limitation in eating under circumstances very similar to Griffin's. For example, in Branham v. Snow, 392 F.3d 896 (7th Cir. 2004), the plaintiff had Type I diabetes, but his symptoms and treatment regimen were much like Griffin's: he had to test his blood sugar four to five times a day, controlled his blood sugar through the use of insulin, diet, and exercise, and relied on his test results to determine "when and what type and amount of food he can eat." Id. at 899. As the Seventh Circuit observed, although Branham "never has experienced a severe hyperglycemic or hypoglycemic reaction, approximately once every three weeks he does suffer from minor reactions to low blood sugar, including trembling and sweating." Id. As to the negative effects of his mitigating measures, the Branham court noted: For Mr. Branham, these negative side effects are many. He is significantly restricted as to the manner in which he can eat as compared to the average person in the general population. His dietary intake is dictated by his diabetes, and must respond, with significant precision, to the blood sugar readings he takes four times a day. Depending upon the level of his blood sugar, Mr. Branham may have to eat immediately, may have to wait to eat, or may have to eat certain types of food. Even after the mitigating measures of his treatment regimen, he is never free to eat whatever he pleases because he risks both mild and severe bodily reactions if he disregards his blood sugar readings. He must adjust his diet to compensate for any greater exertion, stress, or illness that he experiences. Id. at 903-04. Accordingly, the Seventh Circuit found, "[w]e must conclude that, on the record before us, a trier of fact rationally could determine that Mr. Branham's diabetes and the treatment regimen that he must follow substantially limit him in the major life activity of eating." Id. at 904. See also, e.g., Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 859-60 (9th Cir. 2009) (finding genuine issue of material fact as to whether insulin-dependent diabetic who had to test sugar levels multiple times a day and adjust intake accordingly was substantially limited in eating; observing that "[t]he general population does not have to 'snack on something every few hours' to regulate sugar intake; moreover, the general population is not medically required to plan daily schedules around a dietary regimen"); Lawson v. CSX Transportation, Inc., 245 F.3d 916, 924 (7th Cir. 2001) (finding genuine dispute of material fact as to substantial limitation in eating where diabetic plaintiff "must endure the discomfort of multiple [daily] blood tests to monitor his blood glucose levels[,] adjust his food intake and level of exertion to take into account fluctuations in blood sugar[, and,] [w]hen his blood sugar drops, he 'must stop all other activities and find the kinds of food that will bring his levels back to normal....'"); compare, e.g., Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 35 (1st Cir. 2010) (finding no genuine issue of material fact as to whether diabetic plaintiff was substantially limited in eating where plaintiff "does not dispute that his twice daily insulin shots successfully control his diabetes"). The district court's analysis on this point was erroneous in several respects. First, it appears to have conflated the reasonable accommodation issue with the issue of whether Griffin is disabled under the ADA, since it considered Griffin's ability vel non to work a night shift as part of its inquiry into whether he was disabled. ROA-3414. Statutory coverage and reasonable accommodation are two separate issues, and while an employee may not be entitled to an accommodation if he is not covered, whether or not he requires a particular accommodation is irrelevant to the question of coverage. See supra page 15. Second, the district court failed to consider all the evidence in the record in the light most favorable to Griffin, the nonmoving party on summary judgment, and trivialized the severity and burdensomeness of managing his insulin-dependent diabetes. See, e.g., Rohr, 555 F.3d at 859 (observing that "[t]he district court oversimplified Rohr's condition when it opined that 'if he stays on his medicines and watches what and when he eats the only limitations on his activities are the work-related restrictions recommended by his physicians'"); Lawson, 245 F.3d at 924 ("The district court's characterization of the impact that Mr. Lawson's diabetes has on his ability to eat, described in its opinion as requiring 'simple dietary restrictions,' belies the severity of the restrictions that he must follow if he is to avoid dire and immediate consequences."). The district court's ruling on this point should be reversed. B.A Reasonable Jury Could Find that UPS Failed to Engage in the ADA's Mandatory Interactive Process in Good Faith in Response to Griffin's Reasonable Accommodation Request, Resulting in UPS's Failure to Accommodate his Disability. The ADA provides that the term "discriminate" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A). This Court has observed that "EEOC regulations promulgated to implement the ADA define 'reasonable accommodation' as '[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.'" Chevron Phillips, 570 F.3d at 620-21 (quoting 29 C.F.R. § 1630.2(o)(1)(ii)). As the EEOC's regulations note, "[t]he reasonable accommodation requirement is best understood as a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated." 29 C.F.R. Pt. 1630 app., § 1630.9. When an ADA plaintiff alleges that his employer violated the statute by failing to reasonably accommodate his disability, this Court undertakes the following analysis: "[W]here the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the initial burden rests primarily upon the employee ... to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations." Once an employee makes such a request, however, the employer is obligated by law to engage in an "interactive process": "a meaningful dialogue with the employee to find the best means of accommodating that disability." The process thus requires "communication and good-faith exploration." When an employer does not engage in a good faith interactive process, that employer violates the ADA-including when the employer discharges the employee instead of considering the requested accommodations. Chevron Phillips, 570 F.3d at 621 (internal citations omitted); see also, e.g., Cutrera v. Bd. of Supervisors of La. St. Univ., 429 F.3d 108, 112 (5th Cir. 2005); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). Accordingly, the district court erred, first, when it applied a McDonnell Douglas "pretext" analysis to Griffin's accommodation claim. While this Court has correctly noted that McDonnell Douglas burden-shifting may apply to ADA cases where the issue is whether an adverse employment action was taken on the basis of an employee's disability, McDonnell Douglas is not the appropriate paradigm for accommodation claims. See, e.g., Nadler v. Harvey, No. 06-12692, 2007 WL 2404705, at *9 (11th Cir. 2007) (unpublished) (citing published cases from five other circuits, observing that "applying McDonnell Douglas to reasonable accommodation cases would be superfluous, since there is no need to prove discriminatory motivation," and holding that "McDonnell Douglas burden-shifting is not applicable to reasonable accommodation cases"). Under the correct analytical framework, the issue here is whether Griffin met his initial burden under the ADA "'to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.'" Chevron Phillips, 570 F.3d at 621 (quoting Taylor, 93 F.3d at 165). A reasonable jury could find that Griffin did so in unmistakable terms in his letter of August 24, 2006, which was titled "Accommodation Request," made specific reference to medical records he had already submitted to UPS, reiterated his doctor's recommendation that his "scheduled work [be] adjusted to daytime hours as a plan to control medical condition," and stated that he was "reiterating my request for a job accommodation that will be more conducive with the request made by medical providers." ROA-3254. Once he did so, as this Court has held, his request for an accommodation "trigger[ed] the employer's obligation to participate in the interactive process of determining one." Taylor, 93 F.3d at 165; see also Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316 (5th Cir. 2007) ("'employer has duty to seek specific information to enable it to make accommodations'") (internal citation omitted). This Court has described the interactive process as one where "the responsibility for fashioning a reasonable [accommodation] is shared between the employee and employer. . . . Fitting these two halves into a whole, the employer and employee can work together to determine how best to restructure the employee's duties and work place in a manner that accommodates the employee's limitations but does not pose an undue hardship on the employer." Rizzo v. Children's World Learning Ctrs., Inc., 173 F.3d 254, 266 (5th Cir. 1999). A reasonable jury could readily find that UPS failed to engage in the interactive process with Griffin in good faith, as required by the ADA, but instead looked for any reason it could find to avoid having to accommodate him at all. First, a jury could note that Griffin provided UPS with notes from three different doctors, including one of UPS's choosing, all of whom recommended that Griffin work daytime hours to facilitate management of his diabetic symptoms. See supra pages 10-11. According to the EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, the medical records Griffin provided UPS from Dr. Cameron and Dr. Iyriboz (even apart from Dr. Thethi's note, submitted with the RMI) were sufficient to document his disability and his need for a reasonable accommodation and to preclude UPS from requesting more medical documentation, much less proceeding as it did.<5> A jury could find, however, that rather than responding to these recommendations by engaging in the interactive process this Court has described, UPS had Griffin's physician, Dr. Cameron, fill out its RMI form, which appeared designed to lead to the conclusion that Griffin was not entitled to an accommodation. Far from an individualized inquiry into Griffin's condition and limitations and what accommodation could enable him to continue to perform his job, the generic RMI mirrored the prongs of the ADA in "legalese" and focused on the physician's conclusion as to whether the employee was "substantially limited in a major life activity," a legal term of art that a physician would be unlikely to recognize or understand. ROA-3257-59. Thus, not only did the form ask the wrong questions, but it called for a baseless legal conclusion from a medical doctor-especially where, as here, no reference was made to the major life activity of eating or to when the work was to be performed, which was the entire issue for purposes of Griffin's need for an accommodation. A jury could then note UPS's own uncontroverted testimony that manager Thelma Lee, who reviewed Griffin's accommodation request, considered only whether he was "disabled" under the ADA, had no idea what accommodation he was requesting or whether night-shift work was at issue, and relied on Dr. Cameron's "legal" conclusion to deny Griffin's request. See supra pages 11-12. This is all evidence from which a reasonable jury could find that UPS made no attempt to accommodate Griffin's disability, but, instead, seized its first opportunity to label him non-disabled and avoid its obligations under the ADA. UPS argued below that Griffin's doctors did not "mandate" that he work daytime hours, but simply "recommended" it, and that this is somehow not sufficient to constitute a request for an accommodation under the ADA. This is a position devoid of legal or logical support. First, to the extent there was any ambiguity about exactly what Griffin needed or how much he needed it, this Court has stated repeatedly that it is the employer's obligation to communicate with the employee requesting the accommodation to ascertain what his needs are, not simply to rely on its own self-serving interpretation. See supra pages 21, 23. This is exactly the kind of issue that Congress envisioned being discussed and worked through as part of the interactive process required under the ADA, not as the subject of litigation. Second, we are aware of no appellate court that has held that a requested reasonable accommodation must be physician-"mandated" rather than advised or recommended, and with good reason, as the interactive process should remain as flexible as possible and amenable to case-by-case resolution. Indeed, there is no per se requirement in the law that a reasonable accommodation be requested or documented by a physician at all. The employee simply has to make the request. See Chevron Phillips, 570 F.3d at 621. Finally, even if the doctors' recommendations are just that- recommendations-there is no reason why something short of a medical mandate, or a threat of the employee dropping dead, is not a valid basis for a reasonable accommodation. As discussed above, Congress enacted the reasonable accommodation provision of the ADA to "remove[] or alleviate[]" barriers to the full participation of disabled individuals in the workplace. 29 C.F.R. Pt. 1630 app., § 1630.9. The uncontroverted record evidence in this case is that Griffin's Type II diabetes was under poor control at the time, that he was struggling to control it, and that three different doctors recommended that he work daytime or twilight hours in order to better enable him to control his symptoms. See supra pages 2-3, 5-6, 10- 11. Moreover, both Dr. Cameron and Dr. Thethi testified that irregular sleep schedules, which are typical of night shift workers who do not remain consistently nocturnal throughout the week, pose a particular challenge to diabetic patients because the failure to adhere to a consistent sleep schedule throws off their endocrine chemistry. ROA-2716-17;2719;3094.<6> The fact that Griffin's doctors testified that he could physically work the night shift without necessarily dying from it in no way compels a finding that it would not be reasonable to accommodate his diabetes by assigning him to a different shift. See Chevron Phillips, 570 F.3d at 619 (in coverage context, observing that "'[w]hat a plaintiff confronts, not overcomes, is the measure of substantial limitation under the ADA,'" and holding that a reasonable jury could find that plaintiff who was physically able to do her job, albeit with great difficulty, without accommodation was nonetheless entitled to reasonable accommodation) (internal citation omitted). Accordingly, a jury could find that, once UPS got the answer it wanted from Dr. Cameron, it cut off the interactive process without responding to Griffin or following up with any of his physicians and gave him the "choice" of accepting the midnight shift, which would have made it significantly harder for him to control his diabetes, or retiring.<7> Faced with that option, a reasonable jury could find, Griffin had no choice but to retire. A reasonable jury could thus find that UPS failed to meet its obligation to reasonably accommodate Griffin's disability under the ADA, and the district court's ruling on this point should be reversed. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel s/ Elizabeth E. Theran ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,988 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. s/ Elizabeth E. Theran ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: December 22, 2010 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify pursuant to 5th Cir. R. 25.2 that on December 22, 2010, I electronically filed the foregoing amicus brief with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. I certify that the following participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system: Counsel for Plaintiff/Appellant: Lisa Brener, Esq. Lugenbuhl, Wheaton, Peck, Rankin & Hubbard Pan-American Life Ctr., 27th Fl. 601 Poydras St. New Orleans, LA 70130 (504) 568-1990 lbrener@lawla.com Counsel for Defendant/Appellee: Kim Maria Boyle, Esq. Phelps Dunbar LLP 1 Canal Place 365 Canal St. New Orleans, LA 70130-6534 (504) 566-1311 boylek@phelps.com s/ Elizabeth E. Theran ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov ********************************************************************************** <> <1> We take no position with respect to any other issue presented in this appeal. <2> "ROA-[#]" refers to the paginated, certified Record on Appeal. <3> Available at http://www.cdc.gov/diabetes/statistics/slides/long_term_trends.pdf. <4> Available at http://apps.nccd.cdc.gov/DDTSTRS/FactSheet.aspx. The 2007 version is the most recent available. <5> EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html (stating that an employer cannot ask for further documentation where "the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested"). <6> Medical literature supports Dr. Cameron's and Dr. Thethi's testimony. See, e.g., Anke van Mark et al., The Impact of Shift Work Induced Chronic Circadian Disruption on IL-6 and TNF-a Immune Responses, Journal of Occupational Medicine & Toxicology 5:18, 4 (2010) ("[S]hift workers experience significantly more sleep disorders than day workers. Shift work induces chronic sleep debt."); Francesco P. Cappuccio et al., Quantity and Quality of Sleep and Incidence of Type 2 Diabetes, 33 Diabetes Care 414, 419 (2010) ("Disrupted sleep, both in quantity and quality, should be regarded as a behavioral risk factor for the development of Type 2 diabetes.... [The risk is] possibly amenable to modification ... through favorable modifications of physical and working environments to allow sufficient sleep and avoid habitual and sustained sleep deprivation and disruption."). <7> A jury could also find that, because UPS truncated the interactive process prematurely, it never got to the point of considering whether there was an alternative position available for Griffin that would have sufficed as a reasonable accommodation without constituting an undue hardship. Moreover, a jury could note that any efforts UPS made to find an alternative job placement for Griffin were before he requested a reasonable accommodation and not in response to his request. Accordingly, on this record, UPS is not entitled to affirmance of summary judgment based on the undue hardship defense.