EEOC v. Heartway Corp. (10th Cir.) Reply brief and brief as cross-appellee Sept. 13, 2005 ORAL ARGUMENT REQUESTED Case Nos. 05-7011 & 05-7016 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. HEARTWAY CORPORATION d/b/a York Manor Nursing Center, Defendant-Appellee/Cross-Appellant. ________________________________________________________ On Appeal from the United States District Court For the Eastern District of Oklahoma, No. 03-534-WH, The Honorable Ronald A. White, Presiding _________________________________________________________ CONSOLIDATED REPLY AND RESPONSE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT IN CASE NO. 05-7011 AND CROSS-APPELLEE IN CASE NO. 05-7016 _________________________________________________________ JAMES L. LEE JOSEPH A. SEINER Deputy General Counsel Attorney U.S. EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, N.W., Room 7018 CAROLYN L. WHEELER Washington, D.C. 20507 Assistant General Counsel (202) 663-4772 TABLE OF CONTENTS Page TABLE OF CONTENTS ........................................... i TABLE OF AUTHORITIES ........................................ iii PRIOR OR RELATED APPEALS .................................... vii INTRODUCTION ................................................ 1 ARGUMENT AS APPELLANT ...................................... 3 THE DISTRICT COURT ERRED IN FAILING TO GIVE A PUNITIVE DAMAGE INSTRUCTION TO THE JURY.................... 3 ARGUMENT AS CROSS-APPELLEE.................................. 13 STATEMENT OF THE ISSUES.................................... 13 STATEMENT OF THE FACTS RELEVANT TO CROSS-APPEAL............... 13 DECISION BELOW............................................... 17 STANDARD OF REVIEW .......................................... 18 SUMMARY OF ARGUMENT ......................................... 19 ARGUMENT .................................................... 21 I. THERE WAS SUFFICIENT EVIDENCE FOR A REASONABLE JURY TO CONCLUDE THAT HEARTWAY REGARDED EDWARDS AS DISABLED ............ 21 II. THERE IS SUFFICIENT EVIDENCE TO UPHOLD THE JURY'S FINDING THAT EDWARDS WAS TERMINATED BECAUSE OF HER DISABILITY............... 35 CONCLUSION ................................................. 41 STATEMENT REGARDING ORAL ARGUMENT........................... 41 CERTIFICATE OF COMPLIANCE CERTIFICATE OF DIGITAL SUBMISSION CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir. 2001) . . . . . . . . . . . . 7 Canady v. J.B. Hunt Transport, Inc., 970 F.2d 710 (10th Cir. 1992) . . . . . . . . . .18, 37 Crumpton v. St. Vincent's Hospital, 963 F. Supp. 1104 (N.D. Ala. 1997) . . . . . . . . .27 Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir. 1998) . . . . . . . . . . . .29 Davey v. Lockheed Martin Corp., 301 F.3d 1204 (10th Cir. 2002) . . . . . . . . . . . 3 Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003) . . . . . . . 31-32, 34 Duty v. Norton-Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002) . . . . . . . . . . . .29 EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999) . . . . . . . . 5, 6, 9 Gagliardo v. Connaught Laboratories, 311 F.3d 565 (3d Cir. 2002) . . . . . . . . . . . . . 5 Kelly v. Metallics West, 410 F.3d 670 (10th Cir. 2005) . . . . . . . .11, 33, 36 Kolstad v. American Dental Association, 527 U.S. 526 (1999) . . . . . . . . . . . . . . . . 2-4 Lanman v. Johnson County, 393 F.3d 1151 (10th Cir. 2004) . . . . . . . . . . 23 Lowery v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir. 2000) . . . . . . . . . . . . 7 Marinelli v. City of Erie, 216 F.3d 354 (3d Cir. 2000) . . . . . . . . . . . . .27 Marx v. Schnuck Markets, Inc., 76 F.3d 324 (10th Cir. 1996) . . . . . . . . . . . .37 McGeshick v. Principi, 357 F.3d 1146 (10th Cir. 2004) . . . . . . . . . . .32 McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001) . . . . . . . . . . 30-33 Miller v. Eby Realty Group LLC, 396 F.3d 1105 (10th Cir. 2005) . . . . . . . . . . 18 Minshall v. McGraw Hill Broadcasting Co. 323 F.3d 1273 (10th Cir. 2003), . . . . . . . . . . 19 Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir. 1998) . . . . . . . . . . . . 28 Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) . . . . . . . . . . . . . . . . .24 Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000) . . . . . . . . . . . . 7 Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000) . . . . . . . . . . . . 6 Praseuth v. Rubbermaid, Inc., 406 F.3d 1245 (10th Cir. 2005) . . . . .18, 27, 29, 35 Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1 (1st Cir. 1999) . . . . . . . . . . . . .29 Romano v. U-Haul International, 233 F.3d 655 (1st Cir. 2000) . . . . . . . . . . . . 7 School Board of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . . . . . . . . . . . .33 Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir. 1995) . . . . . . . . . . . .18 Sorensen v. University of Utah Hosp., 194 F.3d 1084 (10th Cir. 1999) . . . . . . . . . . .27 Steele v. Thiokol Corp., 241 F.3d 1248 (10th Cir. 2001) . . . . . . . . . . .24 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) . . . . . . . . . . . . . 22-25, 27 Tomsic v. State Farm Mutual Automobile Insurance Co., 85 F.3d 1472 (10th Cir. 1996) . . . . . . . . . . . .36 Townsend v. Lumbermens Mutual Casualty Co., 294 F.3d 1232 (10th Cir. 2002) . . . . . . . . . . .37 Toyota Motor Manufacturing, Ky., Inc. v. Williams, 534 U.S. 184 (2002) . . . . . . . . . . . . . . . . .24 Zimmermann v. Associates First Capital Corp., 251 F.3d 376 (2d Cir. 2001) . . . . . . . . . . . . . 7 FEDERAL STATUTES, RULES AND REGULATIONS 42 U.S.C. § 1981a . . . . . . . . . . . . . . . . . . . . 3 29 C.F.R. § 1630.2 . . . . . . . . . . . . . . . . 22-25, 28 29 C.F.R. pt. 1630 app. § 1630.2 . . . . . . .23, 25, 28, 33 The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq . . . . . . . . . . . .passim Federal Rule of Civil Procedure 50 . . . . . . . . . . . .17 OTHER AUTHORITY EEOC Compl.Man., Section 902: Definition of the Term "Disability" . . . . .23, 25, 28 PRIOR OR RELATED APPEALS PRIOR APPEALS There are no prior appeals. RELATED APPEALS There are no related appeals. Case Nos. 05-7011 & 05-7016 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. HEARTWAY CORPORATION d/b/a York Manor Nursing Center, Defendant-Appellee/Cross-Appellant. ________________________________________________________ On Appeal from the United States District Court For the Eastern District of Oklahoma, No. 03-534-WH, The Honorable Ronald A. White, Presiding _________________________________________________________ CONSOLIDATED REPLY AND RESPONSE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT IN CASE NO. 05-7011 AND CROSS-APPELLEE IN CASE NO. 05-7016 _________________________________________________________ INTRODUCTION In its opening brief, the Equal Employment Opportunity Commission ("Commission") argued that this Court should reverse the district court's decision not to instruct the jury on punitive damages and remand for a new trial on this issue. The Commission argued that the district court improperly relied on three Supreme Court decisions that all arose outside the employment context and addressed only the constitutionality of punitive damage awards. See EEOC Brief at 11-12. The district court also ignored the most relevant Supreme Court decision, Kolstad v. American Dental Association, 527 U.S. 526 (1999), which established the standards for punitive damage awards in employment discrimination cases. Under Kolstad and its progeny, the jury should have been permitted to consider a punitive damage award in this case because: (1) Townsend, the facility administrator, knew that it was a violation of the ADA to terminate an employee because that individual had Hepatitis C; (2) Townsend's actions can be imputed to the company; and (3) the evidence in the record does not demonstrate that Heartway acted in good faith. In response to the Commission's argument, Heartway does not dispute that Townsend's actions can be imputed to the company or that the record evidence fails to establish that the defendant's actions were taken in good faith. Heartway therefore concentrates its brief exclusively on the first prong of the Kolstad test, arguing that Townsend did not have the requisite knowledge to warrant a punitive damage instruction – despite Townsend's testimony that he had training in the ADA and was aware that it was illegal to terminate an employee because of a disability. Heartway's counter-factual semantic argument is unavailing, however, as the case law of this and other circuits clearly establishes that Townsend's understanding of the ADA was sufficient to satisfy the knowledge requirement for a punitive damage claim. The company's arguments are therefore ineffective in overcoming the record evidence that demonstrates the district court's error in failing to instruct the jury on punitive damages. ARGUMENT AS APPELLANT THE DISTRICT COURT ERRED IN FAILING TO GIVE A PUNITIVE DAMAGE INSTRUCTION TO THE JURY In its opening brief, the Commission set forth the standard for determining whether punitive damages are appropriate as established by the Supreme Court in Kolstad and adopted by this Court. See EEOC Brief at 13-14. Under this standard, punitive damages are appropriate where the defendant "engaged in a discriminatory practice" "with malice or with reckless indifference to the federally protected rights" of the plaintiff. 42 U.S.C. § 1981a(b)(1). A plaintiff can satisfy this statutory standard by establishing that (1) the defendant "acted with knowledge that its actions violated federal law" and (2) the illegal actions were taken by "a managerial agent who acted within the scope of employment." Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208-09 (10th Cir. 2002). Additionally, the employer can attempt to establish an affirmative defense, and "punitive damages will not be awarded if the employer shows that it engaged in good faith efforts to comply with Title VII." Id. at 1209. In its brief, EEOC Brief at 14-25, the Commission demonstrated that the company's illegal actions in this case were taken by a high-level managerial agent with complete knowledge that his conduct was in violation of federal law, and that there is insufficient evidence in the record to establish that the actions were taken in good faith. The Commission further noted that in reaching its decision, the district court failed even to address Kolstad, the seminal Supreme Court decision on this issue that was cited in the Commission's proposed jury instructions. See EEOC Brief at 12; JA at 28 (Plaintiff's Proposed Jury Instructions and Verdict Form at 6). Rather, the court focused on three other Supreme Court cases – none of which arise in the employment context or set forth the standard of punitive damages for a victim of employment discrimination. Instead, these cases all address the constitutionality of punitive damage awards, an issue not relevant to this case. See EEOC Brief at 11-12. In response, Heartway says little in defense of the district court's ruling, instead arguing only that the facility administrator's testimony and actions are insufficient to demonstrate the knowledge that he was violating federal law. By failing even to address the Commission's arguments that the administrator's actions should be imputed to the company and that there is insufficient record evidence to establish that Heartway was acting in good faith, Heartway has implicitly conceded that the Commission is correct on these issues. The crux of Heartway's argument is that Townsend's testimony was insufficient to satisfy the knowledge requirement because he only testified that he understood that it was against the law to terminate someone with an actual disability, but did not testify that he understood that it was against the law to terminate someone with a perceived disability. Heartway Brief at 11-18. The case law provides no support for the distinction Heartway attempts to make. Indeed, this Court has made clear that familiarity with the ADA alone is enough to establish that the defendant had knowledge that its actions were in violation of federal law. In EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999), this Court reasoned that a "reasonable jury could have concluded that [defendant] intentionally discriminated against [plaintiff] in the face of a perceived risk that its action would violate federal law" where the manager who was responsible for an employee's improper suspension "testified that he was familiar with the accommodation requirements of the ADA and its prohibition against discrimination and retaliation in the workplace." Id.; see also Gagliardo v. Connaught Labs., 311 F.3d 565, 573 (3d Cir. 2002) (plaintiff "demonstrated that [defendant] was aware of her federal disability rights, as [the human resource representative] testified she was familiar with the ADA and responsible for ensuring [defendant] followed the ADA"); Otting v. J.C. Penney Co., 223 F.3d 704, 711-12 (8th Cir. 2000) ("sufficient evidence was presented to support the jury's determination that [defendant] acted with malice or reckless indifference to [plaintiff's] federally protected rights under the ADA," including evidence that personnel manager did not properly seek to accommodate plaintiff and testified that "he was aware that federal law imposed upon him" a duty to accommodate). Citing to this Court's decision in Wal-Mart with approval, the Fourth Circuit held, in a Title VII case, that a manager's participation in an anti-discrimination training seminar was sufficient to impute the knowledge requirement for punitive damage purposes: We conclude the record contains sufficient evidence, when viewed in the light most favorable to [plaintiff] and giving her the benefit of all reasonable inferences, for a reasonable juror to find that in intentionally refusing to promote [plaintiff] to the position of Supervisor of Management Recruiting, [the manager] did so in the face of a perceived risk that her decision would violate federal law. . . . The record contains evidence that [the manager] knew taking race into account in making significant employment decisions such as denying promotions violates federal law. Specifically, a reasonable juror could infer that [the manager] had knowledge of the existence of federal anti-discrimination laws from [defendant's] evidence that it required every person in management to attend a week-long training seminar that included education on the federal anti-discrimination laws. Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 443-44 (4th Cir. 2000). See also Bruso v. United Airlines, Inc., 239 F.3d 848, 858 (7th Cir. 2001) ("A plaintiff may satisfy this [first] element by demonstrating that the relevant individuals knew of or were familiar with the antidiscrimination laws and the employer's policies for implementing those laws."); Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 385 (2d Cir. 2001) ("[W]e agree with [the district court] that [the manager's] acknowledgment of training in ‘equal opportunity' permits an inference of the requisite mental state."); Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir. 2000) (A manager "testified to his familiarity with the [harassment] policy, and claimed he received ‘extensive training on sexual harassment issues' in conjunction with his M.B.A. A jury could therefore infer [this manager] had knowledge of Title VII's proscriptions, and given this knowledge, reasonably conclude he acted in the face of a perceived risk that his actions would violate federal law."); Romano v. U-Haul Int'l, 233 F.3d 655, 669-70 (1st Cir. 2000) (evidence that immediate supervisor knew that termination was discriminatory and that company president was aware of anti-discrimination policies was sufficient for reasonable jury to conclude that actions "were taken with reckless disregard to [plaintiff's] federal rights"). Here, Townsend not only testified that he had received ADA training, he also conceded that, based on this training, he understood that he could not fire an employee because of a disability or because the employee had been diagnosed with Hepatitis C. Specifically, Townsend testified: Q. In some prior jobs that you've had, you have received training about the Americans with Disabilities Act; right? A. Some training. Q. And you were aware, based on your training that you received, that it was against the law to fire someone because they had a disability; is that right? A. That's right. Q. And you knew, based on your training about the Americans with Disabilities Act, in April of 2002, that it was against the law simply because someone had been diagnosed with Hepatitis C; right? A. Correct. JA at 253 (Tr. at 185). Townsend further demonstrated reckless disregard for Edwards' rights in his comments to Edwards and an EEOC investigator: • When Edwards asked if she could return to the York facility, Townsend replied "you having Hepatitis C, you will not work in our kitchen." JA at 139 (Tr. at 71). • When an EEOC investigator contacted Townsend about the matter, Townsend asked "[w]ould you like to eat some food with her blood on it?" JA at 226-27 (Tr. at 158-59). • Townsend further told the EEOC Investigator that "[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus." JA at 226-27, 255 (Tr. at 158-59, 187). Thus, Townsend testified that he had training in and an understanding of the ADA, and that he knew it was illegal to terminate an employee because of that individual's disability. This understanding is all that is required by the statute or the case law to demonstrate that a manager's illegal actions were taken with the knowledge that he was violating federal law. See Wal-Mart, 187 F.3d at 1246. Despite Townsend's admissions that fulfill the knowledge requirement for punitive damages, Heartway asserts that Townsend's acknowledgment at trial that based on his ADA training he knew "that it was against the law to fire someone because they had a disability" was ambiguous because "the phrase ‘against the law' is a colloquial term that has many meanings and is not necessarily tantamount to a violation of an employee's rights under the ADA." Heartway Brief at 11 (emphasis added). This argument is premised on the idea that at trial Townsend did not believe that the phrase "against the law" meant "against the ADA." A review of the questions asked to Townsend, however, reveals no such ambiguity. The first question as to whether Townsend was aware "that it was against the law to fire someone because they had a disability" is premised on Townsend's prior training on the ADA. JA at 253 (Tr. at 185). And, the next question asked specifically whether, pursuant to this ADA training, Townsend knew "that it was against the law simply because someone had been diagnosed with Hepatitis C." Id. To suggest that these questions referred to any law other than the ADA or to some colloquial meaning of "the law" is disingenuous. Similarly, Heartway's argument that Townsend did not have an understanding that it was illegal to terminate an individual who was regarded as disabled also fails on its face. As set forth above, Townsend testified that he had training in the ADA, he knew that it "was against the law to fire someone because they had a disability," and he knew based on his training that it would be against the law to fire someone because she "had been diagnosed with Hepatitis C." JA at 253 (Tr. at 185) (emphasis added). Although ADA coverage is sometimes a matter of dispute, Townsend's training and admissions that he knew someone with Edwards' impairment would be protected by the ADA are sufficient to support an award of punitive damages. The ADA defines disability to include both actual and perceived impairments. See 42 U.S.C. § 12102(2) (defining disability to include "a physical or mental impairment that substantially limits one or more of the major life activities of such individual" or "being regarded as having such an impairment"). See Kelly v. Metallics West, 410 F.3d 670, 675 (10th Cir. 2005) ("the plain language of the ADA's interlocking statutory definitions includes within the rubric of a ‘qualified individual with a disability' protected by the ADA individuals. . . regarded as disabled"). Thus, Townsend's testimony that he knew it was illegal to terminate an individual because of a disability necessarily encompasses an understanding that it was illegal to terminate an individual because of a perceived disability. Further, his specific acknowledgment that someone diagnosed with Hepatitis C is protected by the ADA reflects that he knew Hepatitis is an impairment that either actually limits major life activities or is mistakenly so regarded. That he himself made this mistake and acted on it in firing Edwards cannot shield Heartway from punitive damages but rather provides the basis for such a remedy.<1> In summary, the facility administrator's testimony in this case was clear and unambiguous: Townsend had prior training on the ADA, and was aware that it was illegal to terminate an employee because of a disability or because the employee had been diagnosed with Hepatitis C. Under the case law of this Court and other circuits, this understanding of the ADA is more than sufficient to satisfy the knowledge requirement for a punitive damage claim. Because Heartway does not challenge the Commission's arguments in its opening brief that (1) Townsend's actions can be imputed to the company and (2) that there is insufficient evidence in the record to establish that the company acted in good faith, the Commission has satisfied all of the elements required to warrant a punitive damage instruction. The district court therefore erred in failing to give this instruction to the jury. ARGUMENT AS CROSS-APPELLEE STATEMENT OF THE ISSUES 1) Whether the district court properly determined that there was sufficient evidence presented at trial to support the jury's verdict that Heartway regarded Edwards as disabled? 2) Whether there was sufficient evidence for a reasonable juror to find that Edwards was terminated because of a disability and reject defendant's view that Edwards was terminated for allegedly lying on her job application? The defendant properly preserved the first question by raising it at the close of plaintiff's case and again after trial. See JA at 323-328 (Tr. at 263-268); JA at 78 (district court order ruling on plaintiff's post-trial JNOV motion). The defendant appears to have addressed the second issue briefly at the close of plaintiff's case and also after trial. See JA at 325-26 (Tr. at 265-66); JA at 78 (district court order ruling on plaintiff's post-trial JNOV motion). STATEMENT OF THE FACTS RELEVANT TO CROSS-APPEAL<2> Janet Edwards was diagnosed with Hepatitis C and was treated for this condition. JA at 94-98 (Tr. at 26-30). By January 2001, Edwards' condition improved and there was no longer a detectable virus in her blood. JA at 96-97 (Tr. at 28-29). Edwards continued to respond to treatment, and on July 9, 2001, there was still no detectable Hepatitis C virus in Edwards' blood. JA at 102 (Tr. at 34). Edwards testified that her Hepatitis C was in remission. JA at 127-28, 157 (Tr. at 59-60, 89). On August 13, 2001, Edwards applied for a position at Heartway. JA at 125, 128 (Tr. at 57, 60). As part of the application process, Edwards completed a physical requirements questionnaire which asked "[i]n order that we may protect our residents from disease, please indicate if you are under a doctor's care or taking medications now." JA at 128-29, 356 (Tr. at 60-61, EEOC's Trial Ex. 8). Edwards checked "no" in response to this question and testified that she was not taking any medication at that time or under a doctor's care. JA at 129-130, 356 (Tr. at 61-62, EEOC's Trial Ex. 8). Edwards testified that as of August 2001, "my hepatitis was in remission, and. . . I would have to go back in six months to have another lab work done, to make sure it stays in remission." JA at 130 (Tr. at 62). Edwards was offered a position as a dietary aide at Heartway on August 15, 2001 and was eventually moved to the cook's position. JA at 132-33 (Tr. at 64- 65). As a dietary aide, Edwards "[s]et up the dining room for the residents. We put out plates and silverware, made sure there was sugar and a little salt and pepper, and got them their drinks, and set up trays with the plates and the silverware, and put them on a cart so they could be put onto another cart to go down the halls to the different rooms, to the people that weren't able to come to the dining room. Washed dishes, swept and mopped, took out trash." JA at 132 (Tr. at 64). As a cook, Edwards prepared food for the residents and employees. JA at 133 (Tr. at 65). Expert trial testimony revealed that Edwards' job requirements at Heartway fell into two classes of jobs listed in the 2000 census data: health care support and food preparation and food service. JA at 289-90, 293 (Tr. at 221-22, 225). These jobs make up the majority of employment opportunities in the broader service worker industry in the relevant counties of Muskogee and McIntosh, Oklahoma – approximately 3500 total jobs. JA at 293 (Tr. at 225). While employed at Heartway, Edwards had a conversation with the director of nursing, Theresa Rains, in which Edwards revealed that she previously had been diagnosed with Hepatitis C. JA at 134-35 (Tr. at 66-67). Two days later, Edwards received a call from Rains informing her that she would need a doctor's note before she could return to work. JA at 136 (Tr. at 68). On April 4, 2002, Edwards' physician prepared a letter releasing her to return to work, which was sent to Edwards. JA at 106-07, 137, 354-55 (Tr. at 38-39, 69, EEOC Trial Ex. 7). After Edwards received the letter, she also received a call from her supervisor at the kitchen, who fired her. JA at 138 (Tr. at 70). Edwards' employment at Heartway was officially terminated by Mitchell Townsend, the facility administrator, on April 5, 2002. JA at 126 (Tr. at 58). Edwards met with Townsend who told her "you having Hepatitis C, you will not work in our kitchen." JA at 139 (Tr. at 71). Though Edwards gave Townsend her physician's letter authorizing her to return to work, Townsend did not even read the letter. JA at 139, 257, 312 (Tr. at 71, 189, 252). In response to Edwards' question whether she was being terminated because of her Hepatitis, Townsend "kind of smiled" and "kind of looked to the side a little bit" and stated that she was being fired because she lied on her job application. JA at 139, 164, 313-14 (Tr. at 71, 96, 253-54). During an investigation of her discrimination charge, the EEOC investigator discussed Edwards' employment with Townsend. JA at 226, 358 (Tr. at 158, EEOC Trial Ex. 19). Townsend asked the investigator if the call was "about the Hepatitis C case," to which the investigator responded that it was. JA at 226 (Tr. at 158). Townsend then asked "[w]ould you like to eat some food with her blood on it?" Id. Townsend further stated that "[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus." JA at 226-27, 255 (Tr. at 158-59, 187). DECISION BELOW At the close of the Commission's case, Heartway moved for judgment as a matter of law ("JMOL") on the ground that the EEOC had not presented sufficient evidence that Heartway regarded Edwards as being substantially limited in working in a class or broad range of jobs. JA at 323-328 (Tr. at 263-68). As part of this argument, Heartway maintained that there was no evidence that Townsend "ever considered anything other than that Ms. Edwards was dishonest in her job application." JA at 325 (Tr. at 265). The district court denied this motion holding that "a reasonable jury may be able to find that there was evidence of adverse discrimination based upon disability for a broad range of jobs." JA at 332 (Tr. at 272). On August 17, 2004, the jury found by a preponderance of the evidence that Heartway had discriminated against Edwards because of a perceived disability. JA at 63 (Verdict Form). On November 2, 2004, Heartway filed a motion for judgment notwithstanding the verdict ("JNOV")<3>, renewing its argument that the evidence "was not sufficient for EEOC to prove the element of EEOC's prima facie case" that Heartway "regarded [Edwards] as being disabled." JA at 78 (November 29, 2004 district court order). On November 29, 2004, the district court denied Heartway's motion, finding that "the evidence was sufficient for the jury to find that the Defendant violated the [ADA] when it discharged Janet Edwards." Id. STANDARD OF REVIEW This Court reviews de novo the district court's denial of Heartway's JMOL motion. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1250 (10th Cir. 2005) (citing Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir. 1995)). This Court should uphold the jury's verdict unless, "viewed in the light most favorable to the non-moving party, the evidence and all reasonable inferences to be drawn from it point but one way, in favor of the moving party." Praseuth, 406 F.3d at 1250 (citing Sheets, 45 F.3d at 1387) (emphasis added); see also Canady v. J.B. Hunt Transp., Inc., 970 F.2d 710, 714 (10th Cir. 1992) ("jury verdicts are not to be lightly overturned") (internal quotation omitted). Under this relatively narrow standard of review, this Court should only reverse the district court if "the evidence and all inferences to be drawn therefrom are so clear that reasonable minds could not differ on the conclusion." Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1110 (10th Cir. 2005) (quotation omitted). On review, this Court should not "weigh the evidence, pass on the credibility of witnesses, or substitute [its] conclusions for that of the jury." Id. at 1110-11 (quoting Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1279 (10th Cir. 2003) (citation omitted)). SUMMARY OF ARGUMENT In its opening brief, Heartway challenges the district court's ruling upholding the jury's determinations that (1) Edwards was covered by the ADA and (2) Heartway terminated Edwards because of her disability. Though Heartway makes two separate arguments challenging liability, its brief advances one basic theme – Heartway disagrees with the jury's determination that Townsend terminated Edwards because of her disability rather than because she allegedly lied on her job application. In its brief, Heartway ignores the fact that the jury has spoken on this issue, and that it clearly determined that Heartway terminated Edwards because of her disability. Heartway also ignores the fact that Townsend's openly discriminatory comments to the EEOC investigator and to Edwards provide more than sufficient evidence to uphold this verdict. Because the finder of fact has reached a determination on this issue, the matter need not and should not be re- tried on appeal. Heartway's attempt to alter the focus of the case by questioning Edwards' credibility is therefore nothing more than an effort to divert attention from the openly discriminatory comments of its own facility administrator. There can be no question that the evidence supports the jury's determination that Edwards was covered by the ADA because the company regarded her as substantially limited in the major life activity of working. The Commission demonstrated that Heartway believed that Edwards was substantially limited in working. Expert trial testimony revealed that Edwards' job duties, as well as the education and experience required for those duties, were similar to positions in the "health care support" and "food preparation and food service" job classes. These jobs account for the majority of employment opportunities in the service worker category of the relevant geographical area in Oklahoma. Additionally, the facility administrator made clear that it was his belief that Edwards could not perform her job – or those jobs in the health care support or food preparation and food service industry – at all. Townsend expressed this belief to Edwards ("you having Hepatitis C, you will not work in our kitchen"), indicated that the company's own customers would share this view ("[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus"), and suggested that others outside the company would hold the same discriminatory bias ("[w]ould you like to eat some food with her blood on it?"). JA at 139, 226-27, 255 (Tr. at 71, 158- 59, 187). When combined with the expert trial testimony, this evidence is more than sufficient to support the jury determination that Heartway perceived that Edwards was substantially limited in working. It is equally clear that there is sufficient evidence to support the jury's determination that Edwards was terminated because of her disability, and not for allegedly lying on her job application. Townsend's discriminatory comments to an EEOC investigator and to Edwards were sufficient to support the jury's finding that Edwards was terminated because of her disability. And, even though the Commission need not show that Edwards responded truthfully to the medical questions on her employment questionnaire, there was sufficient evidence for a reasonable jury to conclude that she was honest when responding to these inquiries. This Court should therefore uphold the jury's verdict that Heartway terminated Edwards because of a perceived disability, as well as the district court's orders on these issues. ARGUMENT I. THERE WAS SUFFICIENT EVIDENCE FOR A REASONABLE JURY TO CONCLUDE THAT HEARTWAY REGARDED EDWARDS AS DISABLED In its opening brief, Heartway asserts that there was insufficient evidence for the jury's determination that the company perceived Edwards as disabled. Heartway Brief at 19-24. Heartway provides little support for this argument, however, asserting broadly that the facility administrator's discriminatory conduct was insufficient to uphold the jury's finding. Id. at 21-24. Contrary to Heartway's conclusory arguments, however, there is an abundance of evidence in the record to support the jury's verdict that Heartway perceived that Edwards was disabled. An employee is disabled under the ADA if the employer "regarded" that individual as having an impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(2). At the close of evidence, the district court properly permitted the jury to determine whether Edwards was disabled, stating that "a reasonable jury may be able to find that there was evidence of adverse discrimination based upon disability for a broad range of jobs." JA at 332 (Tr. at 272). After considering this evidence, the jury concluded that Heartway "perceived" that Edwards was disabled. JA at 63 (Jury Verdict Form). The court correctly submitted this issue to the jury and the jury properly applied the law to the evidence adduced at trial in reaching its conclusion. In Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999), the Supreme Court held that an individual is regarded as disabled where "a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." See also 29 C.F.R. § 1630.2(l)(1) (an individual will be "regarded as" having a disability if the individual "[h]as a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such a limitation"); EEOC Compl.Man., Section 902: Definition of the Term "Disability," available at http://www.eeoc.gov/policy/docs/902cm.html ("Compl. Man.") § 902.8(c) (the ADA "covers individuals who have impairments that do not substantially limit major life activities but who are perceived as being substantially limited"); 29 C.F.R. pt. 1630 app. § 1630.2(l) (same). In this case, it is undisputed that the EEOC demonstrated that Edwards had an actual impairment – Hepatitis C that was in remission. JA at 94, 96-97, 102-03, 107, 130, 354-55 (Tr. at 26, 28-29, 34-35, 39, 62; EEOC Trial Ex. 7). The EEOC also showed that Heartway erroneously believed that Edwards' Hepatitis C substantially limited a major life activity – her ability to work. See 29 C.F.R. § 1630.2(i) (the phrase "major life activities" means "functions such as . . . working"); 29 C.F.R. pt. 1630 app. § 1630.2(i) (same); see also Lanman v. Johnson County, 393 F.3d 1151, 1157 (10th Cir. 2004) (stating that working is a major life activity). According to the Supreme Court in Sutton: When the major life activity under consideration is that of working, the statutory phrase "substantially limits" requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs. . . . To be substantially limited in the major life of activity of working . . . one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs. Sutton, 527 U.S. at 491-92; see also Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523 (1999) (same); Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 200 (2002) (same). In the context of a regarded as working claim, an employee "must show that the employer regarded him or her as being substantially limited in performing either a class of jobs or a broad range of jobs in various classes." Steele v. Thiokol Corp., 241 F.3d 1248, 1256 (10th Cir. 2001) (quotation omitted). A "class of jobs" refers to "the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2(j)(3)(ii)(B)(emphasis added).<4> To demonstrate that Heartway regarded Edwards as limited in working, the Commission presented evidence of her job duties, expert testimony relating those job duties to the classes of jobs from which Edwards would be disqualified by Heartway's perception, and evidence of Townsend's views of Edwards' inability to perform these classes of jobs. Edwards' duties at Heartway required knowledge, skills or abilities common to two large classes of jobs involving food service and health care support. Edwards testified that as a dietary aide she "[s]et up the dining room for the residents. We put out plates and silverware, made sure there was sugar and a little salt and pepper, and got them their drinks, and set up trays with the plates and the silverware, and put them on a cart so they could be put onto another cart to go down the halls to the different rooms, to the people that weren't able to come to the dining room. Washed dishes, swept and mopped, took out trash." JA at 132 (Tr. at 64). When she was moved to the cook's position, Edwards prepared food for the residents and employees. JA at 133 (Tr. at 65). The expert testimony of Elvira Sisolak, EEOC Economist, demonstrated that these duties involved skills and abilities common to two classes of jobs. Sisolak "determine[d] which job categories" should be considered by examining "the duties of the job" and positions with similar "experience or education requirements" in the relevant geographical area. JA at 291-92 (Tr. at 223-24). Sisolak concluded that Edwards' job duties at Heartway, as well as the education and experience required for those duties, were similar to positions in the "health care support" and "food preparation and food service" job categories. JA at 289-90 (Tr. at 221-22). After determining these applicable job classes, Sisolak "extracted some of the census data and did some very simple calculations." JA at 292 (Tr. at 224). Based on this analysis, Sisolak testified that in the relevant geographic area it was her opinion "that based on the census data, there is, in fact, a broad [class] of jobs that is constituted by the health care support and food preparation and food serving positions within the service worker category." JA at 293 (Tr. at 225). Sisolak further testified that these two categories account for the majority of service worker employment opportunities in the area – or approximately 3500 total jobs. JA at 293 (Tr. at 225). This expert testimony is more than sufficient to uphold the jury determination that Edwards was perceived as disabled from working in a broad class of jobs as required by Sutton. See, e.g., Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1251 (10th Cir. 2005) (expert testimony that plaintiff's "‘potential occupational base' was substantially reduced" supported jury determination that individual with blood and lymph node disease who was limited in working around knives or sharp objects was precluded "from performing a very substantial array of the jobs for which she would otherwise have been qualified"). The courts have considered certain job categories to constitute a class or broad range of jobs in similar circumstances. See, e.g., Marinelli v. City of Erie, 216 F.3d 354, 364 (3d Cir. 2000) (listing chef as an example of a class of jobs). See also Crumpton v. St. Vincent's Hosp., 963 F. Supp. 1104, 1114 (N.D. Ala. 1997) (referring to "institutional cook" as a "broad range of jobs"). Certainly the evidence here was sufficient to establish that the company perceived Edwards as unable to perform more than one particular job. See, e.g., Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1089 (10th Cir. 1999) (rejecting disabled in working claim because plaintiff only precluded from "the position of flight nurse" which "is a single job"). There can also be no question that Heartway perceived that Edwards was substantially limited in performing work in the food preparation or service and health care job classes. As it relates to "the major life activity of working," substantially limited "means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i); see also 29 C.F.R. pt. 1630 app. § 1630.2(j) (same); Compl. Man. § 902.4(c)(same). The jury heard evidence that Townsend, the administrator of the Heartway facility, told Edwards that she would "not work in our kitchen" because she had Hepatitis C. JA at 139 (Tr. at 71). Townsend also asked an EEOC investigator how he would "like to eat some food with her blood on it" and stated that "[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus." JA at 226-27 (Tr. at 158-59). These comments demonstrate that Heartway's mistaken beliefs regarding Edwards extended to the performance of any job that involved handling food or providing health care support. And, in asking how the EEOC investigator would "like to eat some food with her blood on it," Townsend clearly revealed his belief that others outside the company would hold the same discriminatory biases as Heartway. Heartway's belief that Edwards' blood could contaminate the food and cause an "exodus" of its clientele establishes the company's belief that Edwards was "significantly restricted." This evidence suggests that the company perceived that Edwards was unable to work at all in these job classes. Under the law, this proof was more than sufficient. See Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 784-86 (3d Cir. 1998) (report showing "very low employment opportunities" in an employee's geographical area was sufficient to show that an employee was "significantly restricted" in working); Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 676 (7th Cir. 1998) ("A rational trier of fact could reasonably find that the substantial percentage reductions in the broad range of jobs available to these plaintiffs [between 35% and 89% of jobs], coupled with their own testimony about the effect of their disabilities on their work as production associates, substantially limited them in the major life activity of working"); Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 12 (1st Cir. 1999) (expert testimony that plaintiff's restrictions "probably preclude a lot of physical jobs" and that "there are a lot of physical jobs in Maine" enough evidence for reasonable jury to conclude plaintiff was substantially limited in working). See also Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 492 (8th Cir. 2002) (finding a vocational consultant's affidavit concluding that employee was disqualified from the available jobs in his working area to be sufficient for jury verdict in employee's favor, when combined with evidence regarding the employee's lack of education, inability to perform work in which he was trained, and relatively advanced age); Praseuth, 406 F.3d at 1251 (plaintiff who was limited in ability to work around knives or sharp objects was precluded "from performing a very substantial array of the jobs"). Indeed, Townsend's comment to Edwards that "you having Hepatitis C, you will not work in our kitchen" revealed the company's belief that she was completely unable to work in these classes of jobs. JA at 139 (Tr. at 71). This Court has found similar evidence sufficient to establish coverage under a theory of regarded as limited in working in two cases involving plaintiffs with psychological problems who were subjected to treatment similar to Heartway's treatment of Edwards. In McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001), this Court addressed a situation in which the plaintiff, a deputy sheriff with psychological problems, maintained that her employer perceived her as disabled in working. This Court found that a "factual controversy [exists] as to whether defendant viewed [plaintiff] as limited in her ability to work in the class of jobs comprising law enforcement." Id. at 971. In that case, the employer regarded the deputy sheriff as psychologically impaired and refused to consider placing her in a less sensitive post, including the civil, records, administrative, or jail divisions, and further sought to have the employee decertified as a peace officer. Id. at 971-72. Just as Heartway perceived that Edwards could not work in the food preparation or service and health care job classes, "McKenzie submitted uncontroverted evidence that, since her illness, she has been regarded as unemployable in the ‘class of jobs utilizing [her] skills.'" Id. at 972 n.6 (citation omitted). And, like the misperception over the safety and public acceptance of Edwards' condition by Heartway residents in this case, the employer's concern in McKenzie over "safety, liability and public acceptance" provided evidence that the employer regarded the plaintiff as disabled. Id. at 971. Similarly, in Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003), this Court found that a fact issue existed as to whether the employer regarded a financial analyst as "substantially limited from a broad class of jobs" where the worker's supervisors expressed a belief that the plaintiff, suffering from mental disorders, posed a physical threat to coworkers. Id. at 1133. The unwarranted concern over the "threat" posed by Doebele is comparable to Townsend's baseless concern over the threat of Edwards' blood potentially ending up in the food she prepared. Moreover, like Heartway's concerns that there would be a "mass exodus" if residents at the nursing home discovered Edwards' impairment, the plaintiff's supervisors in Doebele expressed a concern with the plaintiff's productivity and attendance, recognized by this Court as "indicators of discrimination based on myth, fears, and stereotypes." Id. at 1133-34. Also, similar to Townsend's refusal to consider the doctor's letter given to him by Edwards, this Court acknowledged in Doebele that "[t]he supervisors' disregard of the assessment and recommendations of [the employee's] treating physician support the inference that their actions were improperly based on myth, fear, and stereotype. . ." Id. at 1134. As this Court's decisions also make clear, an employer's failure to consider an employee for another position at the company supports a claim that the employer regarded her as substantially limited in working in a class of jobs. See Doebele, 342 F.3d at 1134 (court notes that defendant "did not consider offering Ms. Doebele another position at Sprint" despite the fact that "Sprint was hiring 200-300 people a week at the time" in reversing summary judgment); McKenzie, 242 F.3d at 972 ("By refusing to consider her for a job in her former workplace despite ten years of successful service, the Sheriff treated [plaintiff] as significantly restricted as compared to the average person having comparable training, skills and abilities.") (internal quotation omitted). Heartway demonstrated, in firing her, its belief that Edwards could not perform another job. See McGeshick v. Principi, 357 F.3d 1146, 1151 (10th Cir. 2004) (fact that the employer invited applicant to apply for other jobs supports view that the employer did not regard the employee as substantially limited in working). In this case, Townsend declined to give Edwards her job back, and did not discuss the possibility of her working in any other capacity at the company. See JA at 139 (Tr. at 71) (in response to Edwards asking why she could not have her job back, Townsend replied "[w]ell, Janet, you having Hepatitis C, you will not work in our kitchen."). It is thus clear that Heartway, which was concerned with the "mass exodus" of its patients and the exposure of food at the facility to Edwards' blood, based its termination decision exclusively on the ‘myth, fears and stereotypes' of its own management and residents regarding Hepatitis C. See Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987) ("Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment."); 29 C.F.R. pt. 1630 app. § 1630.2(l) ("An individual rejected from a job because of the ‘myths, fears and stereotypes' associated with disabilities would be covered under this part of the definition of disability. . ."). The Supreme Court has acknowledged that "[f]ew aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness." Arline, 480 U.S. at 284. As this Court recently affirmed, "[t]he ADA is concerned with safeguarding the employee's livelihood from adverse actions taken on the basis of ‘stereotypic assumptions not truly indicative of the individual ability' of the employee." Kelly, 410 F.3d at 676 (quoting 42 U.S.C. § 12101(a)(7)). See also McKenzie, 242 F.3d at 971 (finding issue of fact as to whether employer regarded employee as disabled in working and stating that "[a]ccording to the EEOC's interpretive guidelines, if an individual can show that a potential employer refused to hire her based on ‘myth, fear, or stereotype,' including concerns regarding safety, insurance, liability, and acceptance by coworkers and the public, the individual will satisfy the ‘regarded as' component of the definition of disability. . . The fact that defendant rejected McKenzie's application without submitting her for a standard psychological or psychiatric assessment as provided for by state law is further evidence that those concerns were based on ‘myths, fears, and stereotype'. . ."). See also Doebele, 342 F.3d at 1133 (setting forth EEOC interpretive guidelines on issue). Heartway's fear and misapprehension regarding Edwards' Hepatitis cannot be disputed, and the company's argument that Townsend terminated Edwards because she lied on her application and not "because he perceived her to be unable to perform her job at York Manor" misses the mark. Heartway Brief at 22. The jury heard all the evidence about what Townsend was thinking when he fired Edwards, and was entitled to conclude, as it did, that Townsend was motivated by Edwards having Hepatitis and not by her allegedly lying about it on her application. Townsend made clear that it was his belief that Edwards could not perform her job ("you having Hepatitis C, you will not work in our kitchen"), that its own customers would share this view ("[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus"), and that others outside the agency would hold the discriminatory bias as well ("[w]ould you like to eat some food with her blood on it?"). JA at 139, 226-27, 255 (Tr. at 71, 158-59, 187). When combined with the expert trial testimony, this evidence is more than sufficient to support the jury determination that Heartway perceived that Edwards was substantially limited in working. II. THERE IS SUFFICIENT EVIDENCE TO UPHOLD THE JURY'S FINDING THAT EDWARDS WAS TERMINATED BECAUSE OF HER DISABILITY There is an abundance of evidence in the record supporting the jury's verdict that Edwards was terminated because of her perceived disability – and not because she allegedly lied on her job application as asserted by Heartway. When reviewing a sufficiency of the evidence claim raised in a motion after trial, this Court should only reverse the district court if it "conclude[s] that, viewed in the light most favorable to the non-moving party, the evidence and all reasonable inferences to be drawn from it point but one way, in favor of the moving party." Praseuth, 406 F.3d at 1250. Rather than pointing in Heartway's favor, the evidence here was more than sufficient to uphold the jury's determination that Heartway illegally fired Edwards. The jury had before it very clear evidence as to Townsend's motivation in terminating Edwards, evidence that showed his attitudes were "mired in prejudice." Kelly, 410 F.3d at 676. The jury knew that Townsend had expressed his feelings about Edwards' impairment directly to Edwards, telling her "you having Hepatitis C, you will not work in our kitchen." JA at 139 (Tr. at 71). The jury further knew that Townsend could not even conceal his discriminatory biases when talking to an EEOC investigator, asking him "[w]ould you like to eat some food with her blood on it?" JA at 226-27 (Tr. at 158-59). And, the jury was aware that Townsend was concerned that if the residents of the nursing facility were to discover Edwards' impairment, they would abandon the facility, stating "[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus." JA at 226-27, 255 (Tr. at 158-59, 187). This telling evidence of open, overt disability discrimination almost mandates a jury's finding that Edwards was terminated because of her perceived disability. But, at a minimum, the evidence certainly supports the jury's determination. This Court should therefore not disturb the jury's verdict in this matter. See, e.g., Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1478 (10th Cir. 1996) (finding triable issue of fact regarding plaintiff's allegation of sex discrimination and employer's reason for termination, "poor performance," such that "[i]t is fundamental that the jury must be permitted to decide from among the different inferences which might be drawn from the evidence"). See also Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1242-43 (10th Cir. 2002) (sufficient evidence for jury to make a credibility determination in plaintiff's favor to find race discrimination, even where employer alleged that demotion and firing were based upon "poor performance," so district court erred in failing to give pretext instruction); Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996) (issue of fact in retaliation claim where several retaliatory acts alleged including a "demotion for lying about discussions relating to a[n] FLSA questionnaire") (emphasis added); Canady, 970 F.2d at 714 ("jury verdicts are not to be lightly overturned. . . . Judgment N.O.V. is proper only when the evidence so strongly supports an issue that reasonable minds could not differ. . . . The court cannot weigh evidence, consider the credibility of witnesses or substitute its judgment for that of the jury.") (internal quotation omitted). In this case, Heartway does not and cannot contend that the jury was not properly instructed or that it did not have every opportunity to persuade the jury of its version of the facts and its reason for firing Edwards. It failed to persuade the jury and on appeal it has failed to meet its heavy burden of demonstrating a ground for reversal. To support the jury's verdict, the Commission need not establish that Edwards was truthful on her job application. The evidence of Townsend's blatant discriminatory bias in this case is more than sufficient to support the jury's finding that Edwards was terminated because of her disability – even assuming the jury also believed that Edwards lied on her job application. Nonetheless, it is worth noting that there was sufficient evidence for the jury also to conclude that Edwards had been truthful on her job application when responding to the medical inquiries. Heartway essentially argues that Edwards was untruthful when she responded on August 13, 2001, to a questionnaire as part of her job application process for Heartway, and indicated that she was not "under a doctor's care or taking medications now." JA at 128-29, 356 (Tr. at 60-61, EEOC's Trial Ex. 8). However, a reasonable jury could have concluded that Edwards responded truthfully on her job application when she indicated that she was not under a doctor's care. Edwards testified that as of August, 2001, it was her understanding that "my hepatitis was in remission, and that I would have to go back in six months to have another lab work done, to make sure it stays in remission." JA at 130 (Tr. at 62).<5> Thus, at the time she filled out her application, Edwards did not believe that her Hepatitis was even active. To the lay person filling out an application for a job, having a general ongoing relationship with a doctor to monitor an inactive condition would not constitute being "under a doctor's care." Indeed, a reasonable person would believe that everyone should have an established relationship with a doctor who can monitor their physical condition and various ailments over time. Being "under a doctor's care," however, suggests a much more immediate and serious treatment regimen than that which Edwards was undergoing on August 13, 2001. At a minimum, then, a reasonable juror could have concluded that the term "under a doctor's care" was ambiguous and that Edwards answered truthfully when she completed her job application. Similarly, a reasonable juror could have found that Edwards was truthful when she indicated on her job application that she was not taking any medication. Edwards' physician testified that he had prescribed her a thirty day dose of an antibiotic on July 9, 2001, JA at 116 (Tr. at 48) – this prescription would therefore have run out on approximately August 9, 2001. Id. Edwards even conceded at trial that she took medication "up until just days" before completing Heartway's questionnaire. JA at 156 (Tr. at 88). However, Heartway has not pointed to any evidence at trial which demonstrates that Edwards was taking any medication on August 13, 2001 – the day she completed her job application. The jury could thus have concluded that Edwards was truthful when she indicated on her job application that she was not "taking medications now." JA at 128-29, 356 (Tr. at 60-61, EEOC's Trial Ex. 8) (emphasis added). In conclusion, this Court should not indulge Heartway's attempt to improperly move the focus of this case from the relevant legal issues involved to an attack on Edwards' credibility.<6> Given the egregious nature of the discrimination in this case, it is not surprising that Heartway would attempt to shift the attention away from the actions of its own facility administrator. It is clear from a legal perspective, however, that Townsend's discriminatory comments to an EEOC investigator ("[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus," "[w]ould you like to eat some food with her blood on it?") and to Edwards ("you having Hepatitis C, you will not work in our kitchen") were sufficient to support the jury's finding that Edwards was terminated because of her disability – irrespective of whether the jury believed the plentiful evidence that Edwards was honest when responding to the medical questions on her job application. CONCLUSION The expert trial testimony in this case, combined with the discriminatory comments of the facility administrator, was more than sufficient to support the jury's finding that Heartway regarded Edwards as substantially limited in the major life activity of working. It is equally clear that there is sufficient evidence to support the jury's determination that Edwards was terminated because of her disability, and not for allegedly lying on her job application. This Court should therefore uphold the jury's verdict in this matter, as well as the district court's JMOL and JNOV rulings. STATEMENT IN SUPPORT OF REQUEST FOR ORAL ARGUMENT The Commission believes that oral argument would materially assist this Court in resolving the complex legal and factual issues presented by this employment discrimination case. In addition, the questions of when an individual is covered by the ADA and when a punitive damage instruction can be submitted to the jury are important to the Commission's statutory obligation of enforcing the ADA. The Commission therefore believes that a discussion of this and related issues at oral argument would be beneficial to the Court. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ____________________________ JOSEPH A. SEINER Attorney Illinois State Bar No. 6257474 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 9436 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed R. App. P. 32(a)(5). _____________________ Joseph A. Seiner September 13, 2005 Certificate of Digital Submission I, Joseph A. Seiner, hereby certify that: 1. All required privacy redactions have been made (NONE); 2. On September 13, 2005, I will send an email containing the attached brief in digital form to the Tenth Circuit clerk's office at esubmission@ca10.uscourts.gov, and to counsel for the defendant. The document submitted in digital form will be an exact copy of the written document filed with the Court, but for the signature which appears in accordance with the Amended Emergency Order governing digital filings in the 10th Circuit Court of Appeals. 3. The digital submissions have been scanned for viruses by the EEOC's virus scanning software, and, according to this program, are free of viruses. The EEOC utilizes Symantec AntiVirus Corporate Edition. The software was most recently updated in September, 2005. _______________________ JOSEPH A. SEINER Attorney Illinois State Bar No. 6257474 U.S. EEOC Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov September 13, 2005 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 13th day of September, 2005, I caused two copies of the attached brief to be sent via federal express overnight mail (for delivery on September 14, 2005) to: JEFFREY C. TASKER NEAL TOMLINS KANE, RUSSELL, RONALD E. GOINS COLEMAN & LOGAN, P.C. TOMLINS AND GOINS 3700 Thanksgiving Tower Utica Plaza Building 1601 Elm Street 2100 South Utica, Suite 300 Dallas, Texas 75201 Tulsa, Oklahoma 74114 ATTORNEYS FOR DEFENDANT AND Clerk of Court U.S. Court of Appeals for the Tenth Circuit 1823 Stout Street Byron White U.S. Courthouse Denver, CO 80257 (sent original and seven copies of brief) ______________________ JOSEPH A. SEINER Attorney Illinois State Bar No. 6257474 Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov **************************************************************************** <> <1> By definition, in a “regarded as” case like this one, the employer takes an adverse action because it believes (albeit erroneously) that the employee is actually disabled. See 42 U.S.C. § 12102(2)(C). As a practical matter, then, it is difficult to conceive of a situation in which an employer would take an adverse action knowing that it merely perceives the employee to be disabled. If this Court were to impose such a requirement, it would be difficult, if not impossible, for a plaintiff ever to receive punitive damages in a “regarded as” case. <2> In its opening brief, the Commission set forth a statement of facts that explained in detail the background of this case. EEOC Opening Brief at 4-7. The Commission presents here the facts of the case that are specifically relevant to the issues on cross-appeal. <3> Though Heartway styled the motion as one for judgment notwithstanding the verdict, Heartway should properly have moved for judgment as a matter of law. See Fed. R. Civ. P. 50. <4> Commission regulations state that the following factors should be considered in determining whether an individual is substantially limited in working: (1) the geographical area to which the individual has reasonable access; (2) the job from which the individual has been disqualified because of the impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or (3) the job from which the individual has been disqualified because of the impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (“broad range of jobs in various classes”). 29 C.F.R. § 1630.2(j)(3)(ii); see also 29 C.F.R. pt. 1630 app. § 1630.2(j); Compl. Man. § 902.4(c); Sutton, 527 U.S. at 492 (citing these rules). <5> There is some question in the record as to whether Edwards had scheduled appointments to visit her physician earlier than this six-month time frame. See, e.g., JA at 104, 155-59 (Tr. at 36, 87-91). <6> Heartway also attempts to show that Edwards was not truthful on her job application by arguing that she lied when she stated that she had not been convicted of a crime. JA at 170-71 (Tr. at 102-03); Heartway Brief at 5. While Edwards was convicted of accessory to petty theft when she was eighteen years old (JA at 171-72, Tr. at 103-04), there is no evidence that Townsend even knew of this conviction when he terminated Edwards. JA at 174 (Tr. at 106). Indeed, Townsend testified that he fired Edwards for being untruthful on her application by “check [ing] that she was not under a doctor’s care or [taking] any medication.” JA at 263 (Tr. at 195). Townsend did not even mention the undisclosed conviction as a basis for the termination, and Heartway does not argue that this evidence formed the basis of Edwards’ firing. See id. Thus, as there can be no question that this omission was not the basis for Edwards’ termination and thus has no legal relevance, Heartway’s emphasis on this evidence can only be characterized as an attempt to malign the plaintiff’s character