Heiko v. Colombo Savings Bank (4th Cir.) Brief as amicus Dec. 13, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _____________________ No. 04-2046 _____________________ JAMES HEIKO, Plaintiff-Appellant, v. COLOMBO SAVINGS BANK, Defendant-Appellee. ____________________________________________________ Appeal from the United States District Court for the District of Maryland ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL ____________________________________________________ ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Office of General Counsel Washington, D.C. 20507 (202) 663-4721 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . .2 2. Statement of Facts . . . . . . . . . . . . . . . . . .3 3. District Court's Decision. . . . . . . . . . . . . . .8 ARGUMENT I. BECAUSE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT HEIKO WAS SUBSTANTIALLY LIMITED IN ELIMINATING WASTE, THE DISTRICT COURT ERRED IN DISMISSING HIS CLAIM OF DISABILITY DISCRIMINATION. . . . . . . . . . 11 A. Eliminating Waste Is A "Major Life Activity" Within The Meaning of the ADA. . . . . . . . . . . . 12 B. There Is Sufficient Evidence To Support A Finding That Heiko Was Substantially Limited In The Major Life Activity Of Eliminating Waste.. . . . . . 16 II. THE DISTRICT COURT ERRED IN REJECTING HEIKO'S PROMOTION CLAIM ON THE GROUND THAT THE RELATIVE SUPERIORITY OF HEIKO'S QUALIFICATIONS TO RUBIN'S QUALIFICATIONS WAS NOT SO APPARENT AS TO "VIRTUALLY JUMP OFF THE PAGE AND SLAP YOU IN THE FACE" . . . . . . . . . . . . . . . . 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . passim Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir. 1979) . . . . . . . . . . . . . . 25 Dennis v. Columbia Colleton Medical Center, 290 F.3d 639 (4th Cir. 2002) . . . . . . . . . . . . . . 24 EEOC v. Browning Ferris, 262 F. Supp. 2d 577, 583-84 (D. Md. 2002) . . . . . . . . 15 EEOC v. Sears, Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . . . . . . . . . . . . . 24 Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737, 747 (N.D. Ill. 1998) . . . . . . . . 15 Fenney v. Dakota, Minnesota & Eastern Railroad Corp., 327 F.3d 707 (8th Cir. 2003) . . . . . . . . . . . . . . 22 Fiscus v. Wal-Mart Stores, 385 F.3d 378 (3d Cir. 2004) . . . . . . . . . . . .12, 13-18 Furnish v. SVI Systems, 270 F.3d 445 (7th Cir. 2001) . . . . . . . . . . . . . . 16 Gillen v. Fallon Ambulance Service, 283 F.3d 11 (1st Cir. 2002) . . . . . . . . . . . . . . . 23 Holiday v. City of Chattanooga, 206 F.3d 637 6th Cir. 2000) . . . . . . . . . . . . . . . 28 Hodge v. Henry County Medical Center, 341 F. Supp. 2d 968, 973 (W.D. Tenn. 2003) . . . . . . . 15 Kammueller v. Loomis Fargo & Co., 383 F.3d 779 (8th Cir. 2004) . . . . . . . . . . . . 14, 18 Lawson v. CSX Transportation, 245 F.3d 916 (7th Cir. 2001) . . . . . . . . . . . . . . 18 Lee v. GTE Florida, 226 F.3d 1249 (11th Cir. 2000) . . . . . . . . . . . . . 24 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . 24 Rhoads v. Federal Deposit Insurance Corp., 257 F.3d 373 (4th Cir. 2001) . . . . . . . . .13, 17, 21-22 Rohan v. Networks Presentations LLC, 375 F.3d 266 (4th Cir. 2004) . . . . . . . . . . . . 13, 21 Rutherford v. Harris County, 197 F.3d 173 (5th Cir. 1999) . . . . . . . . . . . . . . 24 Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998) . . . . . . . . . . . . . . . 15 Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990). . . . . . . . . . . . . . . 26 Sutton v. United Air Lines, 527 U.S. 471 (1999) . . . . . . . . . . . . . . . 17, 21, 22 Taylor v. Pathmark Stores, 177 F.3d 180 (3d Cir. 1999) . . . . . . . . . . . . . . 28 Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) . . . . . . . . . . . 13, 16, 27 Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002) . . . . . . . . . . . . 12-13, 17, 22-23 Workman v. Frito-Lay, 165 F.3d 460 (6th Cir. 1999) . . . . . . . . . . . . . . 15 STATUTES and REGULATIONS Title I of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. . . . . . . . . . . . . . passim 42 U.S.C. 12102(2)(A) . . . . . . . . . . . . . . . .11-12 42 U.S.C. 12112 . . . . . . . . . . . . . . . . . . . . 28 29 C.F.R. 1630.2(j)(1) . . . . . . . . . . . . . . . . . . . 17 29 C.F.R. 1630.2(j)(2) . . . . . . . . . . . . . . . . . . . 17 29 C.F.R. 1630.2(o)(3) . . . . . . . . . . . . . . . . . . . 27 29 C.F.R. App. Pt. 1630.2(i) . . . . . . . . . . . . . . . . . 13 29 C.F.R. App. Pt. 1630.9 . . . . . . . . . . . . . . . . . . 27 29 C.F.R. App. 1630.15(d) . . . . . . . . . . . . . . . .27-28 OTHER AUTHORITY Mark H. Beers, et al., THE MERCK MANUAL OF MEDICAL INFORMATION (2d Home Ed. 2003) . . . . . . . . . . . . . . . . . . .3-4 Random House Webster's Unabridged Dictionary (2d ed. 1998) . . 13 Webster's New World College Dictionary (4th ed. 1999) . . . . 13 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _____________________ No. 04-2046 _____________________ JAMES HEIKO, Plaintiff-Appellant, v. COLOMBO SAVINGS BANK, Defendant-Appellee. ___________________________________________________ Appeal from the United States District Court for the District of Maryland ___________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL ____________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress to interpret and enforce Title I of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. ("ADA"), and other federal civil rights employment statutes. Although this case arises under local law, the district court analyzed the claims under caselaw developed under the ADA. The court held that a plaintiff who needed thrice-weekly hemodialysis just to stay alive did not have a "disability" within the meaning of the ADA because, in the court's view, elimination of waste from the body is not a major life activity and neither the plaintiff's impairment nor his medical treatment and its side effects substantially limited any other major life activity. This decision should be reversed. If affirmed, it could impair EEOC's ADA enforcement efforts. We therefore offer our views to this Court. STATEMENT OF THE ISSUES 1. Whether elimination of waste from the body is a major life activity within the meaning of the ADA. 2. Whether there is sufficient evidence to support a finding that the plaintiff in this case was substantially limited in the elimination of waste from the body. 3. Whether, to raise an issue of fact as to pretext in a disability discrimination suit where there is other evidence of discrimination, a plaintiff must show that the disparity between his qualifications and those of the successful candidate is so apparent as to "jump off the page and slap you in the face." STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment. Plaintiff alleges, inter alia, that defendant violated Montgomery County's anti- discrimination ordinance by denying him a promotion because of his disability, end stage renal failure. Docket entry number ("R")2. After removing the case to federal court (R1), defendant moved for summary judgment. R60. Plaintiff opposed the motion. R69. On July 8, 2004, the district court granted summary judgment. R80. Relying on caselaw developed under the ADA, the court held, inter alia, that, despite his impairment and thrice-weekly hemodialysis treatments, plaintiff was not "disabled" within the meaning of the ADA and Montgomery County Code. R80. Judgment was entered the same day. R80. Plaintiff filed a timely notice of appeal. R84. 2. Statement of Facts James Heiko has polycystic kidney disease. In the late 1990s, as a result of this disease, Heiko's kidneys stopped removing wastes from his blood and he was diagnosed with end stage renal failure. R60, Motion for Summary Judgment ("MSJ"), Exhibit ("Ex.") A, Heiko Dep. 13-17. Absent treatment, this condition would be fatal. R69, Opposition to Summary Judgment ("SJO"), Eisner Dep. 50-51 (patient may survive six months without dialysis). Accordingly, in November 1999, Heiko began undergoing hemodialysis, a process that does not cure kidney failure but rather removes wastes from the blood and regulates body fluids and chemicals mechanically. SJO, Eisner Dep. 57, 104; Heiko Dep. 17. Heiko received dialysis three afternoons a week, on Monday, Wednesday and Friday, from 3:00 to 7:00 p.m., at a specialized facility. SJO, Ex12 (doctor's note); MSJ, Ex.A (Heiko Dep. 200) (like "having a part-time job"). Before beginning treatments, a "fistula," connecting one of his arteries to a vein, was surgically constructed in his arm, causing the vein to enlarge and strengthen so as to withstand repeated punctures with a needle. SJO, Ex1  5; Mark H. Beers, et al., THE MERCK MANUAL OF MEDICAL INFORMATION 834 (2d Home Ed. 2003). In the ensuing years, Heiko also underwent several surgical procedures to maintain and repair this fistula. SJO, Ex1  5; Eisner Dep. 111-12. Thereafter, during treatments, needles were inserted into the fistula, and blood then flowed from Heiko to the dialysis machine where it was cleansed and returned to his body. See MSJ, Ex.A (Heiko Dep. 194); see also MERCK MANUAL at 834-36 (describing process). This typically caused a "huge swelling" where the needles were inserted. MSJ, Ex.A (Heiko Dep. 194). In addition, Heiko's blood pressure was monitored during dialysis, so he wore a blood pressure cuff on the other arm. Id. at 195. Heiko described this process as like being "in jail, strapped to a chair." Id. at 200. He briefly participated in a program where he used an exercise bike while hooked up to the dialysis machine. This experiment was short-lived, however, because it was difficult getting on and off the bike as well as uncomfortable on the bike and, after a couple of minutes, he was too tired to continue pedaling. Id. at 297-99. Despite and because of the dialysis, Heiko was "constantly fatigued." MSJ, Ex.A. (Heiko Dep. 197). After each treatment, he went directly home to recover. SJO, Ex1  1; Heiko Dep. 60 (recovery took several hours); MSJ, Ex.A (Heiko Dep. 199) ("dialysis would really wear you out"). Normally, he took baths because he was too tired even to stand up in the shower (Heiko Dep. 197); he then went to bed early although he often had trouble sleeping. SJO, Ex1  4. In addition to feeling fatigued, Heiko always felt light- headed and nauseous on treatment days; he was often still nauseous and had "dry heaves" the following morning, and the nausea sometimes lasted into the afternoon. SJO, Ex1  4. At one point, he attempted to take his treatments from 6-10 a.m, before work. This proved impractical, however, because dialysis left him so "fatigued," "dehydrated," "cramping" and "nauseous" that he could not then concentrate on his work. SJO, Heiko Dep. 59-60. There were also dietary restrictions related to Heiko's renal failure. Specifically, he had to restrict the type and quantity of food he could consume, carefully regulating his intake of proteins, sodium, phosphorus and potassium. An excess of potassium is particularly dangerous because it can cause the heart to stop; Heiko in fact had been hospitalized because of excess potassium. MSJ, Ex.A (Heiko Dep. 15-17); see also id. at 20 (noting that he took medication to avert phosphorous imbalance, which causes bone problems and is not corrected by dialysis). In addition, to make the dialysis less stressful on his body, Heiko usually fasted on dialysis days. SJO, Ex1  6. To minimize the need for dialysis, Heiko also was required to consume no more than one quart of liquid per day. Id. In January 1998, Heiko was hired as a loan administration assistant at Colombo Savings Bank, a small bank with some 30 employees headed by President John Lane. SJO, Ex7, Ex20. It is undisputed that, despite his medical condition, Heiko's performance was exceptional. See, e.g., SJO, Ex3 (1998, 1999 and 2000 performance evaluations). Over the next 18 months, he was promoted first to Table-Funded Loan Supervisor; and then to Assistant Manager/Assistant Vice-President of Loan Administration. SJO, Ex3. In the latter position, his supervisor was Vice-President Heather Brown. Id. At some point thereafter, Brown was promoted to Senior Vice-President, and, according to Heiko, he assumed a greater role in the Loan Administration department. His duties included overseeing day-to-day operations; handling personnel issues as well as preparing reports; performing audits; ensuring that loan payments and releases of collateral were done in a timely manner; addressing escrow-related matters; training employees screening applicants; and monitoring problems with internal and external customers. SJO, Ex1  13. In December 2000, Lane named Heiko the company's first and only Employee of the Year at the annual holiday gathering. Id. 14. It is also undisputed that Lane, Brown and others at the bank were aware of Heiko's medical condition. See, e.g., SJO, Brown Dep. 146, 184; Lane Dep. 198. Once he began dialysis, the bank accommodated his treatment schedule by permitting him to work from 7:00 to 2:00, with no lunch break, on dialysis days and from 7:00 to 5:30, with a half-hour lunch break, on other days. SJO, Heiko Dep. 59. The bank also gave him 5« weeks off in the spring of 2000 when he had a kidney removed. SJO, Ex1 at  2. In late 2000, Brown announced that she would leave the bank the following spring. In early 2001, Heiko asked Lane to consider him for the job of Vice-President of Loan Administration. SJO, Ex1  15. Lane agreed to consider Heiko, but was vague about how and when the selection would be made the job was not posted and no interviews were conducted. Id.; MSJ, Ex.A (Brown Dep. 104, 106, 108). Heiko testified that when he asked Brown for information, she told him she had "nothing to do with the decision" and "no knowledge of what the decision would be." SJO, Heiko Dep. 56. On March 26, 2001, the bank named Sandra Rubin to be Vice-President of Loan Administration. SJO, Ex17. Rubin, who had longer banking service but less tenure at Colombo than Heiko, had headed Colombo's mortgage department. SJO, Ex14, Ex20. Heiko complained to Lane and Brown that he was better qualified than Rubin and that Rubin would fail in the position. See, e.g., SJO, Heiko Dep. 47-52; MSJ, Ex.A (Lane Dep. 124-25, 128). He testified that Lane responded that Rubin was selected because Lane could not hold the job open for the 4-6 months Heiko would miss if he received a kidney transplant. SJO, Ex1  17; Heiko Dep. 49-50 (adding that Heiko could not work 50-hour weeks). Heiko testified that, while Lane gave him no chance to respond at that moment, he had previously made it clear that a transplant would entail missing only 4-6 weeks. SJO, Heiko Dep. 50-52 (adding that job would not require 50-hour weeks and he sometimes worked Saturdays anyway). Heiko testified that Brown told him to "look at [his] situation." Id. at 47-48. When he asked what that meant, she did not clarify, but a few days later she sua sponte told him that she had not been referring to his disability. Id. at 48-49 (Brown also indicated she "wasn't positive" Rubin could do the job). In her deposition, Brown stated that her "look at your situation" comment meant that, if Heiko was so sure Rubin would fail, he should simply stay and do his job because, if Rubin did not perform as expected, he would be "sitting pretty" and in line for the Vice-Presidency. SJO, Brown Dep. 208. 3. District Court Decision In an oral decision, the district court granted summary judgment to defendant. Noting that the Montgomery County disability discrimination provisions are "substantially identical" to the ADA, the court analyzed Heiko's claim under federal standards. R80, Transcript of decision ("Tr.") 154. The court stated that there is a "two-prong test for the definition of disability," requiring proof that plaintiff has a "physical or mental impairment" and that the impairment substantially limits one or more major life activities. Tr. 153-55. Major life activities, the court stated, are activities "of central importance to daily life" such as walking, seeing and hearing. Tr. 155. The court added that the statutory terms should be "interpreted strictly to create a demanding standard." Tr. 156 (citation omitted). Applying this two-pronged test, the court noted that the parties agreed that plaintiff had an impairment since his kidneys did not function properly and he required dialysis to stay alive. However, the court concluded, plaintiff had not established that he was substantially limited in a major life activity. Tr. 162-63. Heiko identified as major life activities eating, drinking and eliminating waste. Relying by analogy on Kammueller v. Loomis Fargo & Co., 285 F. Supp. 2d 1200 (D. Minn. 2003), rev'd 383 F.3d 779 (8th Cir. 2004), the court found no substantial limitation in eating or drinking. Tr. 160. The court then held that waste elimination is not a major life activity. Reiterating that the test for disability is two-pronged, the court reasoned that, if "satisfaction of the first [prong] automatically satisfied the second, it would eliminate any need to go to the second question." Tr. 159-61. In contrast to "the types of major life activities that are contemplated by the statute," the court continued, "if one were to simply say that the failure of the kidneys to function to eliminate necessary waste in the passing of urine is in and of itself a major life activity, then we would allow the impairment section to swallow whole the substantial limitation section." Id. The court went on to consider whether any other major life activities satisfied the "two-pronged test" the test which, according to the court, excludes waste elimination as a major life activity. In the court's view, Heiko could not establish that he has a disability under this test because the evidence would not support a finding that he is "substantially limited in one or more of his major life activities as that term has been defined and strictly confined by decisions of the supreme court [sic] . . . ." Tr. 162. The court stated that plaintiff "was required to devote 12 hours a week out of 168 waking hours to dialysis treatments so as to make up for the deficiencies of his kidneys, because they were not properly eliminating waste." Tr. 162. Moreover, the court noted, because the bank "generously accommodated" his schedule, he was able to work full time while receiving his dialysis treatments. Id. The court then turned to the merits of Heiko's claim that he was denied a promotion because of his disability. Tr. 163. The court stated that Heiko's subjective belief that he was better qualified than Rubin was irrelevant; the standard is objective. Tr. 166. Further, the court stressed, when the only evidence of pretext presented by a plaintiff is his superior qualifications, a reasonable jury can find pretext only if the disparity between his qualifications and those of the successful candidate is so apparent "as to jump off the page and slap you in the face." Tr. 165. Applying that test, the court concluded that "the record in this case is simply bereft [sic] upon which a reasonable fact finder could rely to conclude that the qualifications of Mr. Heiko . . . in comparison to Ms. Rub[i]n were so apparent as to virtually jump off the page and slap you in the face." Id. In reaching this conclusion, the court implicitly found no issue of fact concerning whether Lane, rather than Brown, made the promotion decision and whether Rubin was selected because Lane believed, mistakenly, that plaintiff would miss 4-6 months when and if he had transplant surgery. The court commented that biased statements of a decisionmaker are not probative where he "relies entirely upon the recommendation of unbiased subordinates." See Tr. 164. The court also rejected as non-probative Brown's comment that plaintiff should "look at [his] situation" when he complained about the promotion decision. The court stated that, while Heiko construed the comment as referring to his medical situation, Brown testified without rebuttal that she had meant he should stop complaining and, if Rubin did fail, "at the appropriate time he might be able to get the position." Tr. 166-67. ARGUMENT I. BECAUSE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT HEIKO WAS SUBSTANTIALLY LIMITED IN ELIMINATING WASTE, THE DISTRICT COURT ERRED IN DISMISSING HIS CLAIM OF DISABILITY DISCRIMINATION. James Heiko alleges that Colombo Savings Bank denied him a promotion to Vice-President of Loan Administration because of his disability, end stage renal failure. Although the case arises under the Montgomery County Code, the district court analyzed plaintiff's claims under caselaw developed under the ADA. The ADA defines "disability" to include persons with "a physical or mental impairment that substantially limits one or more of [his] major life activities." 42 U.S.C. 12102(2)(A). See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (describing 3-step analysis: impairment, major life activity, substantial limitation). In Heiko's case, there is no dispute that his renal failure constitutes an "impairment" and, as a result, his body cannot properly eliminate waste. Whether he is covered by the statute thus turns on whether elimination of waste from the body is a major life activity and whether, based on the evidence, a jury could find that, because of his impairment, he is substantially limited in that activity. A. Eliminating Waste Is A "Major Life Activity" Within The Meaning of the ADA. The district court erred in holding that eliminating waste from the body is not a major life activity. As the Third Circuit recently held, waste elimination is a major life activity since it "is comparable to other life-sustaining activities such as breathing, eating, or drinking, all of which have been held to be major life activities within the statute." Fiscus v. Wal-Mart Stores, 385 F.3d 378, 384 (3d Cir. 2004) (citing cases). This Court should therefore hold that waste elimination is a major life activity within the meaning of the ADA. The term "major life activities," while not expressly defined in the ADA, refers to "activities that are of central importance to daily life" that "the average person in the general population can perform with little or no difficulty." Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197 (2002); Rohan v. Networks Presentations LLC, 375 F.3d 266, 274 (4th Cir. 2004); 29 C.F.R. App. Pt. 1630.2(i). An "activity" is "a normal function of the body or mind." Webster's New World College Dictionary 14 (4th ed. 1999); see also Random House Webster's Unabridged Dictionary 20 (2d ed. 1998) (defining "activity" in part as a "normal mental or bodily power, function, or process"). Examples of major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, and working, as well as thinking and reproduction. See Bragdon, 524 U.S. at 638 (reproduction); Rhoads v. Federal Deposit Ins. Corp., 257 F.3d 373, 386 (4th Cir. 2001) (caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, working); Taylor v. Phoenixville School Dist., 184 F.3d 296, 307 (3d Cir. 1999) (thinking). As the Supreme Court noted in Bragdon, major life activities need not have "a public, economic, or daily dimension." 524 U.S. at 638 ("breadth of the term confounds the attempt to limits its construction in this manner"). Nor is the term confined to external or volitional behavior since it encompasses thinking, breathing and sleeping. See, e.g., Fiscus, 385 F.3d at 383. Rather, the "touchstone" is the activity's "significance" or "importance to most people's daily lives." Bragdon, 524 U.S. at 638; Toyota, 534 U.S. at 198. In a decision issued after the district court's decision here, the Third Circuit has thoroughly analyzed the issue and concluded that elimination of waste from the body constitutes a major life activity. See Fiscus, 385 F.3d at 384. See also Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 785 (8th Cir. 2004) (recognizing "cleansing one's own blood cells" as "an activity of central importance to a person's life"). Like Heiko, the plaintiff in Fiscus had end stage renal failure which was treated with dialysis, albeit a different type than Heiko's. 385 F.3d at 380-81 (peritoneal dialysis). The Court noted that "the touchstone of a major life activity is its importance or significance," and an activity such as reproduction the applicable activity in Bragdon that is "'central to the life process' expressly meets that test." Id. at 384. By that standard, the Court held, "processing and eliminating wastes from the blood qualifies as a major life activity because, in their absence, death results." Id. (quoting Bragdon, 524 U.S. at 638). In that respect, the Court continued, waste elimination compares to "other life-sustaining activities" such as breathing which are considered major life activities. Further, the Court rejected an argument that an impaired ability to eliminate waste is merely a "characteristic" of kidney failure, rather than a major life activity. Rather, the Court reasoned, this impaired ability is "the effect of kidney failure in the same way that impaired thinking is the effect of organic brain disease." Id. (original emphasis). Other courts have reached similar conclusions. See, e.g., Hodge v. Henry County Med. Ctr., 341 F. Supp. 2d 968, 973 (W.D. Tenn. 2003) (finding that elimination of bodily waste is major life activity); Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737, 747 (N.D. Ill. 1998) (waste elimination is major life activity). Cf. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871 (2d Cir. 1998) (assuming without deciding that controlling one's waste elimination is major life activity); Workman v. Frito-Lay, 165 F.3d 460, 467 (6th Cir. 1999) (holding that jury could find that controlling one's bowels is major life activity); EEOC v. Browning Ferris, 262 F. Supp. 2d 577, 583-84 (D. Md. 2002) (moving one's bowels is major life activity). Similarly, here, this Court should hold that eliminating waste from the body is a major life activity. Waste elimination clearly falls within the plain meaning of "activity." It is also the type of basic activity that "the average person in the general population can perform with little or no difficulty." 29 C.F.R. Pt. App. 1630.2(i). And, like reproduction or breathing, it is of central importance to daily life indeed, "central to the life process itself" (Bragdon, 523 U.S. at 624). In reaching the contrary conclusion, the district court expressed concern that treating waste elimination as a major life activity would collapse impairment and major life activity into a single inquiry. See Tr. 159-61. See also R73, SJ Reply (arguing that, since inability to eliminate waste is "inherent" in kidney impairment, treating waste elimination as a major life activity would render that determination "superfluous"). This concern is unwarranted. As in Fiscus, Heiko's impairment is end stage renal failure whereas the major life activity he has identified is waste elimination. This overlaps no more, for example, than mental illness and thinking. Cf. Fiscus, 385 F.3d at 384; Phoenixville School District, 184 F.3d 296 (finding genuine factual dispute whether, due to bipolar disorder, plaintiff was substantially limited in major life activity of thinking). B. There Is Sufficient Evidence To Support A Finding That Heiko Was Substantially Limited In The Major Life Activity Of Eliminating Waste. Because it held that eliminating waste is not a major life activity, the district court did not need to decide whether Heiko could establish that he was substantially limited in that activity when Colombo denied him a promotion. Since the district court trivialized the adverse effects of Heiko's condition and its treatment on his daily life, however, the defendant may argue that the judgment may be affirmed on the alternative ground that he was not substantially limited in eliminating waste. On the contrary, the record provides ample evidence to support a finding that Heiko had a substantial limitation in his ability to eliminate waste. An individual is "substantially limited" in a major life activity if, because of an impairment, he is "[s]ignificantly restricted as to the condition, manner or duration under which [he] can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity." Rhoads, 257 F.3d at 387 (citing 29 C.F.R. 1630.2(j)(1)). Factors relevant to this determination include (1) the "nature and severity of the impairment," (2) the "expected duration of the impairment," and (3) the "expected long-term impact of or resulting from the impairment." 29 C.F.R. 1630.2(j)(2); see also Toyota, 534 U.S. at 196. In making this determination, courts must take account of mitigating measures plaintiff is using, but any side effects or other collateral limitations caused by those measures must also be considered. See Sutton v. United Air Lines, 527 U.S. 471, 484-88 (1999); Fiscus, 385 F.3d at 385-86. Thus, the Bragdon Court held that an HIV+ plaintiff was substantially limited in the major life activity of reproduction. 524 U.S. at 641. While plaintiff might be physically capable of having a child, the Court concluded, such an action would be "dangerous to the public health" and carry adverse economic and legal consequences. Id. According to the Court, because the ADA "addresses substantial limitations on major life activities, not utter inabilities," when "significant limitations result from the impairment, the definition [of disability] is met even if the difficulties are not insurmountable." Id.; see also Lawson v. CSX Transp., 245 F.3d 916, 924-26 (7th Cir. 2001) (finding substantial limitation in eating). Applying that standard here, the evidence clearly supports a finding that, because of his impairment, Heiko was substantially limited in the major life activity of eliminating waste. His impairment renal failure was expected to last indefinitely since he had no way of knowing when, if ever, a kidney would be available for transplant. In addition, the impairment was severe. Absent on-going, grueling treatment, he would die; even with the measures he was taking hemodialysis, dietary restrictions, medications he was nauseous and fatigued much of the time. See Kammueller, 383 F.3d at 785-86 (holding that, due to potentially fatal renal failure, plaintiff was disabled since he spent 15-16 hours a week in dialysis-related activities, went to bed early on dialysis nights, took numerous medications and strictly limited his diet and fluid intake); cf. Fiscus, 385 F.3d at 386 (noting that hemodialysis is a "time-consuming and cumbersome" process). In finding no substantial limitation, the district court noted that Heiko "devoted" only 12 hours a week to dialysis. Tr. 151-52; id. at 162 ("12 hours a week out of 168 waking hours"). This trivializes Heiko's condition and ignores the substantial burdens associated with its treatment. Unlike an "average person," Heiko organized his life around the manner and condition under which he eliminated wastes; as he explained, it was like having a part-time job. See MSJ, Ex.A (Heiko Dep. 200). Three afternoons a week, on Monday, Wednesday and Friday, he had to leave work at 2:00 in order to reach the dialysis facility in time for his 3:00 treatment. SJO, Heiko Dep. 59. This necessitated working what the court called an "unusual" schedule. Tr. 152. On days when he was not receiving dialysis, he worked from 7 a.m. to 5:30 p.m. with only a half-hour lunch break. Heiko Dep. 59. In contrast, on dialysis days, he worked from 7 a.m. to 2 p.m. with no lunch break. Id. After the treatments, he went directly home to recover. SJO, Ex1  2; Heiko Dep. 60 (recovery time lasted several hours). The treatments themselves were draining. See MSJ, Ex.A (Heiko Dep. 199) ("dialysis would really wear you out"). Before beginning dialysis, Heiko had a "fistula" surgically constructed in his arm, connecting an artery to a vein. SJO, Ex1  5. Although Heiko evidently escaped the infections common with fistulae (Eisner Dep. 111-12), he did require several subsequent surgeries to repair and maintain his fistula, and he could not do much lifting with that arm. Ex1  5; MSJ, Ex.A (Heiko Dep. 194-95). During the four-hour treatments, needles inserted into the fistula were connected to the dialysis machine, causing a "huge swelling," while Heiko's blood pressure was monitored via a blood- pressure cuff on his other arm. MSJ, Ex.A (Heiko Dep. 194-95). He likened this to being "in jail, strapped to a chair." Id. at 200. For a brief time, he participated in a program requiring that he use an exercise bike while hooked up to the dialysis machine, but the experiment was short-lived because it was not only hard getting on and off the bike but also uncomfortable on the bike and, after a few minutes, he was too tired to continue pedaling. Id. at 297- 99. Even when he was not participating in the program, he was too tired after his treatment to do anything except head straight home; he usually took a bath because he was too tired to stand up long enough to shower and would go to bed early. Id. at 197; SJO, Ex1  4. He tried, briefly, taking his treatments in the morning, before work, but was so exhausted, dehydrated and nauseous that he could not concentrate. MSJ, Ex.A. (Heiko Dep. 59-60). Moreover, because of the stress that dialysis places on the body and the dangers of a chemical imbalance, Heiko had to monitor his diet carefully. Liquids were limited to a quart a day; his intake of protein, sodium, phosphorus and potassium was also restricted, and he typically fasted on dialysis days. SJO, Ex1  6. Despite these measures, however, he always felt fatigued and nauseous on dialysis days, and the nausea often lasted until the next day; he would awaken with "dry heaves" and sometimes feel ill even into the afternoon. Id.  4. In contrast, an average person can eliminate wastes from his body without the arduous process Heiko underwent in conjunction with that activity. The average person can eliminate wastes from his blood virtually anywhere, simply by urinating for 10-15 minutes a day (SJO, Eisner Dep. 51), rather than by being hooked up to a machine. He is not routinely nauseous and fatigued. He can travel freely without regard to whether there is a specialized facility nearby where he can obtain a treatment. He need not fast three times a week or strictly monitor his food and liquid intake to avoid stressing his system or, for example, getting potassium poisoning. He can also work a normal 9-to-5 day and is not too exhausted to take a shower in the evening. In light of such distinctions, viewing the evidence as a whole, a jury could find that, due to his impairment, Heiko was "significantly restricted" in the "condition, manner and duration" under which he can perform the major life activity of waste elimination. Compare Sutton, 527 U.S. at 488-89 (no substantial limitation where plaintiffs could correct severe myopia by donning glasses); Rohan, 375 F.3d at 275 (no substantial limitation where plaintiff's difficulty interacting with others was intermittent, not significantly different from average person's, and not entirely attributable to her impairment); Rhoads, 257 F.3d at 388-89 (no substantial limitation where, despite asthma, plaintiff could function anywhere except "one particular smoke-infested office"). The district court noted that, despite his impairment, Heiko could work and do a "broad range" of activities including driving, having sexual relations, taking the Metro and socializing at home or with friends. Tr. 151-52; see also R73, SJ Reply at 11 (arguing that what Heiko can do, despite impairment, is relevant to disability analysis, citing Toyota, 534 U.S. 184). On the contrary, only matters related to Heiko's ability to eliminate waste are relevant to whether he is significantly restricted in the manner and condition under which he engages in that activity. That is, in fact, the approach the Supreme Court followed in Toyota. There, plaintiff alleged that, due to carpal tunnel syndrome, she was substantially limited in the major life activity of performing manual tasks. Because that activity is comprised of numerous separate minor actions, the Supreme Court concluded that, in determining substantial limitation, both the manual tasks she could not do and those she still could do were relevant; however, the matters the Court mentioned, such as personal hygiene and household chores, were all "manual tasks." 534 U.S. at 198-201. Nothing in the decision suggests that plaintiff's ability to do other activities eliminating waste, for example would bear on whether she could show a substantial limitation in performing manual tasks. As noted above, the ADA "addresses substantial limitations on major life activities, not utter inabilities." Bragdon, 524 U.S. at 641. That Heiko continued to live as normally as possible, despite his impairment, does not undermine his argument that his renal failure substantially limited his ability to eliminate waste. Cf. Sutton, 527 U.S. at 488 ("individuals who use prosthetic limbs or wheelchairs may be mobile and capable of functioning in society but still be disabled because of substantial limitation on their ability to walk or run"); Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 22 (1st Cir. 2002) ("key question is not whether a handicapped person accomplishes her goals, but whether she encounters significant handicap-related obstacles in doing so"). II. THE DISTRICT COURT ERRED IN REJECTING HEIKO'S PROMOTION CLAIM ON THE GROUND THAT THE RELATIVE SUPERIORITY OF HEIKO'S QUALIFICATIONS TO RUBIN'S QUALIFICATIONS WAS NOT SO APPARENT AS TO "VIRTUALLY JUMP OFF THE PAGE AND SLAP YOU IN THE FACE." The district court rejected Heiko's promotion claim because it concluded that Heiko did not show that his qualifications were so superior to Rubin's as to "jump off the page and slap you in the face." Tr. 165-66. Absent such a showing, the court reasoned, Heiko could not establish that defendant's proffered reasons for selecting Rubin were pretextual. Id. In reaching this conclusion, the court applied an improper legal standard and ignored Heiko's other evidence of pretext. In Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000), the Supreme Court reaffirmed that where, as here, plaintiff relies on the McDonnell Douglas framework, his prima facie case, combined with sufficient evidence that defendant's proffered reason is a pretext, may permit a trier of fact to find discrimination. See, e,g., EEOC v. Sears, Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001). Two circuits have held that plaintiffs may establish pretext in discriminatory non-selection cases by showing that disparities between their qualifications and those of the successful candidate "are so apparent as virtually to jump off the page and slap you in the face." See Rutherford v. Harris County, 197 F.3d 173, 182 n.9 (5th Cir. 1999); Lee v. GTE Fla., 226 F.3d 1249, 1253 (11th Cir. 2000). This Court has never endorsed this particular test for pretext. See Dennis v. Columbia Colleton Med. Ctr., 290 F.3d 639, 648 (4th Cir. 2002) (discussing without applying test). Furthermore, this Court has recognized that, even those circuits that apply the test do so "only when the sole evidence of pretext is the superior qualifications of the plaintiff." Id. (original emphasis). While acknowledging these limitations, the district court nevertheless applied the slap-your-face test to Heiko's promotion claim and held that his evidence did not support a finding of pretext under that test. This was error. Even if the test otherwise applied in this circuit, Heiko did not rely exclusively on his superior qualifications to show that disability played a role in his non-promotion. Instead, he proffered more in particular, his testimony that Lane told him he was not selected to be Vice-President because the company could not afford to hold the job open for 4-6 months if Heiko ever got a kidney transplant and because Heiko could not work a 50-hour week. SJO, Ex1  17. On a summary judgment motion, the court was required to credit Heiko's testimony. See, e.g., Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (in ruling on summary judgment motion, court must assess evidence in light most favorable to non-moving party). The court, however, simply ignored the evidence, which strongly suggests that Heiko's medical condition and related treatment made a difference in the decision to give the job to Rubin. Moreover, there is also Brown's comment, in response to Heiko's probing as to why Rubin was promoted, that Heiko should "look at [his] situation." Heiko testified that Brown did not explain this comment, which he understood to reference his medical condition an assumption lent inferential support by the fact that, according to Heiko, a few days later, she sua sponte told him she had not been referring to his disability. Heiko Dep. 47-49. She also expressed concern that Rubin was not up to the job. Id. at 48. Brown testified that by "situation" she meant that Heiko would be "sitting pretty" if Rubin did fail because he would be the logical replacement (Brown Dep. 208), but a jury need not credit this testimony. On the contrary, if Brown selected Rubin, as defendant asserts, it would be odd for her to endorse Heiko's view of Rubin's incompetence rather than simply say that she selected Rubin because Rubin was the better candidate, fully capable of handling the job. Cf. Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990) ("task of disambiguating ambiguous utterances is for trial, not for summary judgment"). Defendant may argue that Lane's comment that defendant could not hold the job open for 4-6 months if Heiko underwent a kidney transplant, even if made, is not relevant because Lane simply rubber-stamped a decision made by Brown. The district court, while making no express finding on this point, appeared to adopt this view. See Tr. 164. There is, however, conflicting evidence on the point, so it is properly a question for the jury. Heiko testified that, shortly before the selection was announced, Brown told him she had nothing to do with the decision. SJO, Heiko Dep. 56. As noted above, Heiko also testified that Lane told him he was not selected because of his supposed need for extended leave. Id. at 49-50. If believed, this testimony amply supports a finding that Lane, at a minimum, played a key role in the selection decision. Defendant may also argue that it should not be liable for Lane's mistake of fact concerning the time that Heiko would miss if he had a kidney transplant. Initially, on this record, a jury could find that Lane could not reasonably have believed that Heiko's transplant surgery, if it occurred, would require a 4-6 month absence. Heiko testified that, although he had no chance to respond on this occasion, he had told Lane on other occasions that he would miss only 4-6 weeks for the transplant. Heiko Dep. 50-52. Moreover, it is undisputed that the bank (including Lane) was well aware that Heiko missed only 5« weeks when his other kidney was removed just one year earlier. Ex1  16. In any event, this is fundamentally a reasonable accommodation question: defendant assumed that Heiko would require accommodation an extended multi-month leave at some future date for transplant surgery. Thus, rather than simply deny Heiko the job because of this perceived need for accommodation, defendant had an obligation to engage in the interactive process to determine what accommodation was required. 29 C.F.R. 1630.2(o)(3); 29 C.F.R. App. Pt. 1630.9 (discussing interactive process); see, e.g., Phoenixville School District, 184 F.3d at 311-17 (same). Had he consulted Heiko, as the regulations and guidance require, Lane would have realized that he had greatly overestimated the time that Heiko was likely to be out. Defendant would bear the burden of showing that undue hardship would result from allowing the Vice- President of Loan Administration to miss 4-6 weeks for medical reasons. See, e.g., 29 C.F.R. App. 1630.15(d) (employer must "demonstrate that the accommodation will, in fact, cause it undue hardship"). The fundamental purpose of the ADA is to ensure that employers do not deny job opportunities to people like Heiko, based on mere assumptions about what they can and cannot do because of a disability. See, e.g., Holiday v. City of Chattanooga, 206 F.3d 637, 643-45 (6th Cir. 2000) (noting "thesis" of ADA is that people should be judged on their abilities, not unfounded fear or ignorance). To that end, employers are required to ascertain the facts and base decisions on an individualized assessment of the person, his impairment, abilities and actual (not presumed) limitations. See id. at 643; Taylor v. Pathmark Stores, 177 F.3d 180, 182, 190-94 (3d Cir. 1999) (same); see also 42 U.S.C. 12112. Where, as here, the employer fails to conduct any such inquiry, there is and should be no good faith mistake defense. Cf. Taylor, 177 F.3d at 192-93 (no good faith mistake defense where employer believes, without conducting individualized determination, that employee's disability "inherently precludes successful performance of essential functions of a job, with or without accommodation"). CONCLUSION For the foregoing reasons, the judgment below should be reversed and this case should be remanded to the district court for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 202-663-4721 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32, I certify that this brief was prepared with Work Perfect, Courier New (monospaced) typeface, 12 point font, and contains 6921 words, from the Statement of Interest through the Conclusion. ____________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I, Barbara L. Sloan, hereby certify that two copies of the attached Brief of the Equal Employment Opportunity Commission As Amicus Curiae were sent this 13th day of December, 2004, by first class mail, postage prepaid, to: Douglas Benjamin Huron Tammany Morgan Kramer HELLER, HURON, CHERTKOF, LERNER, SIMON & SALTZMAN, PLLC 1730 M Street, N.W., Suite 230 Washington, DC 20036-4517 Gary L. Lieber Katherine Kristin Brewer Anessa Abrams SCHMELTZER, APTAKER & SHAPARD PC 2600 Virginia Avenue, N.W., Suite 1000 Washington, DC 20037-1922 _______________________________ Barbara L. Sloan _____________________________________________________________ 1 We take no position on any other issue in the case. 2 Heiko also listed the major life activity of reproduction, but the court rejected his evidence on this point as defective. Tr. 150. 3 In finding no disability, the district court relied in part on the district court decision in Kammueller. See Tr. 156-58. In the appellate decision cited above, the Eighth Circuit reversed that ruling, holding that the plaintiff, who, like Heiko, had end stage renal failure due to polycystic kidney disease, was disabled under Minnesota law. 4 To support its argument, defendant also cited Furnish v. SVI Systems, 270 F.3d 445, 449-50 (7th Cir. 2001), which held that “liver function” – the purported major life activity plaintiff there relied on – is not an “activity” but a characteristic of cirrhosis of the liver, the applicable impairment there. Unlike Heiko, the Furnish plaintiff identified no “activity” affected by his impaired liver. 5 There are, in fact, only 168 hours in a week, so Heiko’s waking hours are necessarily significantly fewer than 168. 6 Even if dialysis were less burdensome, the fact that it takes Heiko hours to do something an average person does in minutes could support a finding of disability. See Fenney v. Dakota, Minn. & E. R.R. Corp., 327 F.3d 707, 715-16 (8th Cir. 2003) (substantial limitation where, due to impaired arm and hand, plaintiff took significantly longer to care for himself than average person needs). 7 Moreover, with respect to working, Heiko worked a 40-hour week because defendant largely accommodated his treatment schedule. Absent a finding of disability, however, no accommodation would be required, and it is not clear Heiko could have worked full-time. 8 As for a 50-hour workweek, defendant proffered no evidence that it was a requirement of the job, and Heiko testified that he did and could, when needed, work on Saturdays. Heiko Dep. 50-52.