Holly v. Clairson Industries, 11th Cir. Amicus Brief August 17, 2006 ___________________________________________ No. 06-13365-AA ___________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ___________________________________________ TOMMY E. HOLLY, Plaintiff-Appellant, v. CLAIRSON INDUSTRIES, L.L.C., Defendant-Appellee. __________________________________________________________ On Appeal from the United States District Court for the Middle District of Florida (No. 5:05-cv-192) The Honorable Wm. Terrell Hodges, Presiding __________________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT __________________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov CERTIFICATE OF INTERESTED PERSONS I certify that, to the best of my knowledge, the following is a complete list of the trial judges, attorneys, and all persons, associations of persons, firms, partnerships, and corporations having an interest in the outcome of this case that were not previously disclosed in the Plaintiff-Appellant's Opening Brief:Cooper, Ronald S. (General Counsel for EEOC)Davis, Lorraine C. (Assistant General Counsel for EEOC)U.S. Equal Employment Opportunity Commission (Amicus Curiae)Vail, Daniel T. (Counsel for EEOC)Wheeler, Carolyn L. (Acting Associate General Counsel for EEOC) ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS C-1 TABLE OF CONTENTS ................. i TABLE OF CITATIONS ................... iii STATEMENT OF INTEREST ................... 1 STATEMENT OF THE ISSUES ................ 1 STATEMENT OF THE CASE ................. 2 I. COURSE OF PROCEEDINGS ........... 2 II. STATEMENT OF FACTS ............ 2 III. DISPOSITION BELOW ............. 9 SUMMARY OF ARGUMENT .................. 11 ARGUMENT ............................. 13 I. THE DISTRICT COURT ERRED IN RULING AS A MATTER OF LAW THAT "PUNCTUALITY" WAS AN ESSENTIAL FUNCTION OF HOLLY'S MOLD POLISHER JOB.. 13 A. "Punctuality" Is Not Typically a Job "Function". 14 B. "Punctuality" Is Not "Essential" to Holly's Position. 20 II. THE DISTRICT COURT ERRED IN RULING AS A MATTER OF LAW THAT THERE WAS NO REASONABLE ACCOMMODATION THAT WOULD HAVE ENABLED HOLLY TO COMPLY WITH CLAIRSON'S PUNCTUALITY POLICY. 25 III. THE DISTRICT COURT ERRED IN RULING AS A MATTER OF LAW THAT HOLLY'S ADA CLAIM MUST FAIL UNLESS HOLLY CAN PROVE THAT CLAIRSON APPLIED ITS PUNCTUALITY POLICY IN A DISCRIMINATORY MANNER. 28 TABLE OF CONTENTS (con't) CONCLUSION 29 CERTIFICATE OF COMPLIANCE C-2 CERTIFICATE OF SERVICE C-3 TABLE OF CITATIONS Cases Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . 14, 20 Coneen v. MBNA Am. Bank, N.A., 334 F.3d 318 (3d Cir. 2003) . . . . . . . . . . . . . . . 25 *. . . . . . . . . . . . . . . .D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220 (11th Cir. 2005). . . . . . . . 14, 21, 22, 24 Davis v. Fla. Power & Light Co., 205 F.3d 1301 (11th Cir. 2000). . . . . . . . . . . . .19-20 Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000). . . . . . . . . . . . passim Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997) . . . . . . . . . . . . . 26 Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir. 1994). . . . . . . . . . . .18-19, 20 Tardie v. Rehab. Hosp., 168 F.3d 538 (1st Cir. 1999). . . . . . . . . . . . . . . 20 *. . . . . . . . . . . . . . . . .U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002). . . . . . . 17, 25, 29 Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29 (1st Cir. 2000) . . . . . . . . . . .23, 24, 27 Willis v. Conopco, Inc., 108 F.3d 282 (11th Cir. 1997) . . . . . . . . . . . . . . 26 TABLE OF CITATIONS (con't) Statutes 42 U.S.C. §§ 12101-12117 . . . . . . . . . . . . . . . . . . . .1 *. . . . . . . . . . . . . . . . . 42 U.S.C. § 12111(8)13, 21, 22 *. . . . . . . . . . . . . . . . . . . .42 U.S.C. § 12111(9)(B)25 . . . . . . . . . . . . . . . . . . . 42 U.S.C. § 12111(10)(A)16 . . . . . . . . . . . . . . . . . . . . . 42 U.S.C. § 12112(a)13 *. . . . . . . . . . . . . . . . 42 U.S.C. § 12112(b)(5)(A)17, 28 42 U.S.C. § 12116. . . . . . . . . . . . . . . . . . . . . . . 14 Legislative History H.R. Rep. No. 101-485(II). . . . . . . . . . . . . . . 14, 15, 21 Regulations *. . . . . . . . . . . . . . . . . . . . .29 C.F.R. § 1630.2(m)13 *. . . . . . . . . . . . . . . . . 29 C.F.R. § 1630.2(n)(1)14, 21 *. . . . . . . . . . . . . . . . . . . 29 C.F.R. § 1630.2(n)(2)22 *. . . . . . . . . . . . . . . . . . . 29 C.F.R. § 1630.2(n)(3)21 29 C.F.R. § 1630.2(n)(3)(i). . . . . . . . . . . . . . . . . . 22 *. . . . . . . . . . . . . . . . . 29 C.F.R. § 1630.2(o)(2)(ii)25 29 C.F.R. § 1630.2(p)(1) . . . . . . . . . . . . . . . . . . . 16 TABLE OF CITATIONS (con't) 29 C.F.R. § 1630.4 . . . . . . . . . . . . . . . . . . . . . .13 *. . . . . . . . . . . . . . . . . . 29 C.F.R. § 1630.9(a)17, 28 EEOC Interpretive Guidance 29 C.F.R. Pt. 1630 App. § 1630.2(n). . . . . . . . . . . .21, 23 29 C.F.R. Pt. 1630 App. § 1630.2(o). . . . . . . . . . . . . .15 29 C.F.R. Pt. 1630 App. § 1630.9 . . . . . . . . . . . . . . .23 .EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002) . . . . . . . . . . 15-16, 17, 26 Rules Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . C-2 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . C-2 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . C-2 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . C-2 Miscellaneous American Heritage Dictionary (4th ed. 2000). . . . . . . . . .14 Black's Law Dictionary (8th ed. 2004). . . . . . . . . . . . .14 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission ("EEOC") is charged by Congress with enforcing Title I of the Americans with Disabilities Act of 1990, as amended (the "ADA"). See 42 U.S.C. §§ 12101-12117. This appeal requires this Court to interpret the EEOC's ADA regulations and critical ADA statutory terms (including "essential function" and "reasonable accommodation"). Because we believe resolution of these issues will affect the EEOC's ADA enforcement efforts, we are offering our views to this Court. See Fed. R. App. P. 29(a). STATEMENT OF THE ISSUES 1. Whether the district court erred in ruling as a matter of law that "punctuality" was an "essential function" of Holly's mold polisher job. 2. Whether the district court erred in ruling as a matter of law that there was no reasonable accommodation that would have enabled Holly to comply with Clairson's punctuality policy. 3. Whether the district court erred in ruling as a matter of law that Holly's ADA claim must fail because Holly did not prove that Clairson applied its punctuality policy in a discriminatory manner. STATEMENT OF THE CASE I. COURSE OF PROCEEDINGS Tommy E. Holly filed this ADA lawsuit against his former employer Clairson Industries, L.L.C. (“Clairson”) on March 18, 2005. R.1-R.2. Holly’s complaint alleged (among other things) that Clairson refused to accommodate his disability and terminated him in violation of the ADA. R.2 at 2 ¶¶9,10; id. at 3 ¶15. Clairson moved for summary judgment. R.15-R.19; R.28. On May 11, 2006, the district court granted Clairson’s motion and entered final judgment for Clairson. R.29-R.30. This appeal followed. R.31. II. STATEMENT OF FACTS Holly was in a motorcycle accident in 1984 that rendered him a paraplegic, requiring him to use a wheelchair. R.26-2 at 4-5. Clairson, a Florida company that produces molds for industrial and medical devices, hired Holly in 1986 as a “mold polisher.” R.16 at 1 ¶1; id. at 3-4 ¶9. Three virtually-identical written job descriptions for this mold polisher position make an explicit distinction between the "General Requirements" of the job and its "Essential Functions." R.28-2 at 1,4,7. One of the "General Requirements" of a mold polisher requires employees "to arrive at work in a timely manner and be at their workstation prior to the starting of their shift." Id. By contrast, the "Essential Functions" - listed separately from "General Requirements" - include tasks such as "polishing mold components," "cleaning and inspecting existing molds," and "developing engraving skills." Id. Holly's immediate boss was Dennis Miller, the mold shop supervisor. R.26- 4 at 5-6. Miller's supervisor was Steve Nilson, a Director and Vice President at the company. Id. Miller testified that Holly was a "very valuable" employee and was "extremely talented." R.26-5 at 12,26,29-30. Miller gave Holly six or seven annual reviews and awarded him a raise each time. Id. at 7-8. Nilson stated that Holly was a "very good" employee and "did his job very well." R.26-4 at 8. Holly once received an "Employee of the Month" award praising his skill, relationship with co-workers, attendance record, and dependability. R.26-7. His performance reviews similarly reflect his dependability and reliability. See, e.g., R.26-8 at 2,5,19 (e.g., indicating "When we need [Holly] he'll be there"). Clairson admitted that "[o]ther than Holly's attendance problems, he was a good employee." R.16 at 4¶15. Holly wakes up consistently every day between 5:00 a.m. and 5:30 a.m. and does not oversleep. R.26-2 at 36. He typically worked the 7:00 a.m. to 3:30 p.m. shift. R.26-3 at 38. However, because of medical issues and mobility problems related to his disability, Holly has frequently had trouble arriving to work on time. R.26-2 at 8-9. Holly testified that his disability was the cause ninety-five percent of the time he was late. Id. at 9-10,42-43. For example, Miller and Nilson both testified that there was often a long line of employees waiting to "clock-in" at the time clock in the break room. R.26-5 at 10-11; R.26-4 at 30-31. Miller said that because Holly was in a wheelchair he "was always at the end" of this line. R.26-5 at 10-11. Holly said he was not "always" at the end of the line, but that this did occasionally cause him to clock-in late. R.26-2 at 9,34. On many other occasions, Holly was late because pallets or barrels were blocking the entrance into the warehouse or the break room containing the time clock. Id. at 9-10,12-13,33-35; R.26-5 at 9,35. In addition, Holly testified that on rainy days he had more trouble maneuvering his wheelchair around while getting to work. R.26-2 at 32,38,40-41. He could not hold an umbrella and push his wheelchair at the same time and would have to wait in his truck in the parking lot for the rain to let up so he would not get completely soaked trying to get into the building. Id. He testified "I didn't want to get soaking wet and then sit in this chair eight to ten hours at a time" (since it was difficult for him to dry off and clean up after sitting in the rain). Id. at 32,38; R.26-5 at 7. In addition, because of his paraplegic condition, Holly has no bowel or urinary control. R.26-2 at 7,41. On occasion, Holly would soil himself on his way to work and would have to return home to change his clothes. R.26-4 at 13-14; R.26-5 at 10-11. He was also late at times because he was attending necessary doctor appointments (e.g., seeing his urologist). R.26-4 at 9; R.26-5 at 11,33. Nilson testified that "[a] majority, a large portion of [Holly's] tardies were a minute late." R.26-4 at 12; R.26-2 at 24, 40. Miller agreed. R.26-5 at 8-9. Nilson also said that "I looked at that as not an issue with his condition." R.26-4 at 12. Nilson even said he rarely noticed it when Holly was late. Id. at 13. Miller similarly said that unless Human Resources brought tardiness to his attention (or Holly was more than a half-hour late), he normally did not notice it. R.26-5 at 23,25-26,28-29. Holly worked through breaks, over lunch, and after-hours to compensate for time lost due to tardiness. R.26-2 at 45. Miller testified that Holly "was one of those fellas that may come in a minute or two late in the morning, but he would make it up. Whether he would stay over in the evening, work through a break, work through a lunch hour, work through whatever to help the company get the job done." R.26-5 at 8,27. Indeed, Holly testified that he "normally" worked more than forty hours a week. R.26-2 at 45. Nilson testified that Clairson retained Holly despite his frequent tardiness because of his job performance. R.26-4 at 11. Nilson specifically said that "[i]n the Mold Shop Department a tardiness issue did not affect how work was done, versus, as it is in production. Manufacturing is really sensitive where mold building is not." Id. at 11-12. Miller also agreed that the type of work Holly did as a mold polisher was not time sensitive. R.26-5 at 20. Miller indicated that it did not matter if "somebody stayed late as opposed to coming in early . . . as long as the work was done." Id. Miller testified that he and Nilson "knew that a minute or two late was not hurting the company." Id. at 27. In June 2003 Clairson adopted a new "no fault" attendance policy which required employees to "report[] to work regularly and on time." R.16 at 2 ¶¶5, 6. The policy includes a progressive disciplinary system under which there are no "excused" or "unexcused absences." Id. at 2-3 ¶7. Rather, each absence, regardless of length, is counted as one "occurrence." Id. After receiving a certain number of occurrences, an employee is given escalating verbal and written warnings. Id. If the employee incurs nine occurrences within one calendar year, the employee is terminated. Id. The Employee Handbook containing this policy provides that: Tardy employees may delay assembly operations and force other employees to stand idle as the supervisor waits for unpunctual employees to report to work or until temporary replacements can be oriented and placed on the job. Employees who leave early also force supervisors to find temporary replacements. Therefore, each occasion of tardiness, excessive breaks or leaving early is counted as one-half (1/2) occurrence. R.16 at 3 ¶7. "Tardies" were determined based on the time clock in the employee breakroom. R.26-3 at 14. Occurrences are charged to an employee even if the employee is only one minute late. Id. at 13,35. Notably, however, Clairson's president, Cloteen Kilkelly, testified that exceptions to strict enforcement of the policy existed. Accordingly to Kilkelly, if the tardiness was caused "by an act of nature" or a "medical emergency" the employee was not penalized for it. Id. at 27- 28. Holly immediately told Miller he feared his disability would make it "extremely difficult" for him to comply with the new policy. R.26-2 at 44; R.26-5 at 20-21. Holly was asked in his deposition if he could remember any specific conversations that he had with Miller "concerning any special accommodations that you would need." R.26-2 at 8. Holly replied that he "told [Miller] everything about my disability" and "explain[ed] my problems." Id. at 8,14-15. Miller stated that Holly "complained to me on several occasions about" how obstacles were blocking his path and making him late. R.26-5 at 35-36. Miller testified that he complained to Nilson about the policy and advocated for the ability to make exceptions to it (e.g., for employees who have doctor's appointments). R.26-5 at 17-18. Miller also stated that exceptions were made for certain individuals under the new policy (such as for Nilson's and Miller's assistant). Id. at 16-17,37-38. Nilson testified that after the policy was implemented, he would often allow his employees to alter their shifts on particular occasions (e.g., when they had a doctor's appointment) so they would not run afoul of the policy. R.26-4 at 24. Nilson explained that the "key in the policy was that they got their full eight hours in." Id. at 29. After Clairson implemented the punctuality policy, the evidence shows that Holly continued to arrive late to work due to his disability. R.16 at 4 13; id. at 5 19; R.26-2 at 13. Holly routinely explained to Miller why he was late. R.26-2 at 13,16,41-42. Miller testified that he believed Holly was doing the best he could to comply with the new policy. R.26-5 at 21. Holly said Miller told him he would "go to the front office and talk to them in my behalf." R.26-2 at 17,18. It is unclear whether Miller ever did so. However Nilson, who believed it would be "very difficult to replace an employee of that talent," did go to Human Resources on Holly's behalf to see if could get some of Holly's "occurrences" reversed. R.26-4 at 22. Nilson told Human Resources that "I need this employee in my department" and "it's extremely hard to replace a mold polisher and because our department is not as attendant [sic] sensitive as other departments in the company, I wanted to retain him." Id. at 24. Nilson testified that after he went to Human Resources he "was told that the system is in place for a reason and no exceptions can be made." Id. at 22. On or about October 1, 2003, after Holly had accrued four "occurrences," Clairson issued him a verbal reminder. R.16 at 5 ¶20. On February 12, 2004, Holly received a second verbal reminder for having incurred five and one-half occurrences. Id. at ¶21. By March 23, 2004, Holly had accumulated six occurrences and received a written warning (which Holly refused to sign, since he believed he was "doing the best job that I could do for them" and following the new policy "the best I could"). Id. at ¶22; R.26-2 at 18-19. On or about April 14, 2004, he had accrued seven occurrences and Clairson issued a second written warning (which Holly also refused to sign). R.16 at 5-6 ¶24. On May 3, 2004, after Holly's ninth occurrence, Clairson terminated him. Id. at 6 ¶25. Nilson testified that Kilkelly had "veto power" over the termination, but did not exercise it. R.26-4 at 23. III. DISPOSITION BELOW In its opinion granting Clairson's motion for summary judgment, the district court ruled that Holly was not a "qualified" individual with a disability because he could not perform the "essential functions" of his job with or without accommodation. Decision at 14,18. The district court ruled that "[i]t is well established that regular attendance and punctuality [are] an essential function of most jobs." Id. at 15 (citing Earl v. Mervyns, Inc., 207 F.3d 1361, 1366-67 (11th Cir. 2000)). The district court reasoned "it is within the employer's discretion to determine what job functions are essential and it is beyond dispute that Clairson made attendance and punctuality essential functions, both through its discipline of employees and clearly established policies." Decision at 16-17. The district court also stated that "[b]y not arriving to work on time, [Holly] was slowing down his production, increasing overhead, and potentially increasing overtime costs." Id. at 16. Accordingly, the district court found, there was "ample evidence" that punctuality was one of Holly's essential job functions - indeed, that it was "always an essential element" of mold polishing. Id. at 16,17-18. Further, the district court concluded, no reasonable accommodation would have enabled Holly to perform this essential function. Here, the district court stated, Holly is requesting that he "be allowed to clock in whenever he wanted without repercussion," to "come and go as he pleases," and to "arrive at any time." Decision at 18,19,20. According to the district court, Holly expected Clairson to "ignore its attendance policy" and "eliminate the essential job function of punctuality." Id. at 19. This request, the district court concluded, "is not reasonable or required under the ADA." Id. Finally, the district court held that even if Holly could establish that he was a qualified individual with a disability, he still could not prevail because he could not show that he was discharged because of his disability. Decision at 21. The district court ruled that "Holly has not identified a single comparator or put forth a single shred of evidence that he was treated differently from any non-disabled employee who violated Clairson's attendance policy." Id. at 21-22. Without such proof of disparate treatment, the district court concluded, Holly's claim under the ADA must fail. Id. at 22. SUMMARY OF ARGUMENT The district court erred in ruling as a matter of law that "punctuality" was an essential function of Holly's mold polisher job. First, given the evidence presented here, punctuality is not a "function" at all. The EEOC's regulations define "functions" to be the fundamental job "duties" of the position in question. Because "being punctual" is a means or manner of getting Holly's job done - not a job task itself - it is not a job function within the meaning of the ADA. This Court's cases suggesting that punctuality, attendance, and mandatory overtime can be job "functions" are either distinguishable or, in our view, wrongly decided. Moreover, even if punctuality can be a job "function" in some cases or even this case, there is at least a genuine issue of material fact as to whether it was "essential" to Holly's particular job. A reasonable factfinder could determine, based on the evidence adduced, that even Clairson did not view punctuality as an essential function. The written job descriptions for mold polisher do not include "punctuality" among the job's essential functions. In addition, Miller and Nilson testified that Holly's position was not at all time sensitive and that they rarely noticed when Holly was late. Holly's supervisors routinely allowed Holly to clock-in past his start-time before Clairson enacted the new policy. There was no evidence suggesting that Holly's tardiness negatively affected any other employee's performance. Indeed, Holly's supervisors uniformly praised his performance. Given this evidence, there is at least a genuine issue of material fact as to whether punctuality was fundamentally important to Holly's mold polisher position. The district court thus erred in granting summary judgment on this issue. The district court similarly erred in ruling as a matter of law that no reasonable accommodation would have enabled Holly to perform the actual essential functions of his job. The district court assumed that Holly wanted to be allowed to "come and go as he pleases" and was asking Clairson to "ignore" its punctuality policy altogether. To the contrary, Holly requested that he be allowed to clock-in past his start time (and make up time lost due to tardiness on a break, over lunch, or after-hours) only when he was late because of his disability. This accommodation is precisely the type of accommodation the statute contemplates in cases like this one. Moreover, the policy itself specifically allowed for exceptions for "medical emergencies" - a frequent cause for Holly's tardiness. There is at least a genuine issue as to whether the accommodation Holly requested is consistent with Clairson's punctuality policy and thus reasonable. The district court erred in ruling otherwise. Finally, the district court erred in finding that Holly's ADA claim must fail because he had not shown that Clairson treated non-disabled employees more favorably under the punctuality policy than disabled employees like Holly. The district court misunderstood the nature of Holly's case, which was based on a failure-to-accommodate theory. The failure to provide reasonable accommodation (absent undue hardship) is disability-based discrimination under the ADA. The district court erred in requiring Holly to prove an additional claim of disparate treatment. ARGUMENT I. THE DISTRICT COURT ERRED IN RULING AS A MATTER OF LAW THAT "PUNCTUALITY" WAS AN ESSENTIAL FUNCTION OF HOLLY'S MOLD POLISHER JOB. The ADA prohibits discrimination against any "qualified individual with a disability" because of the individual's disability. See 42 U.S.C. § 12112(a); see also 29 C.F.R. § 1630.4 (same). Here there is no dispute that Holly is an individual with a disability. Rather, the dispute centers on whether Holly is "qualified" for his mold polisher position. A "qualified" individual with a disability is one who, with or without reasonable accommodation, can perform the "essential functions" of the position in question. See 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m) (same). As the phrase "essential functions" implies, there are two obvious criteria for determining whether an employer's requirement qualifies as such. First, the requirement must be a "function" within the meaning of the ADA. Second, the "function" must be "essential" to the job in question. Here, the district court misconstrued and misapplied both of these critical concepts in ruling as a matter of law that "punctuality" was an "essential function" of Holly's mold polisher position. A. "Punctuality" Is Not Typically a Job "Function" ADA does not define "essential functions." However, the EEOC's regulations define it to mean "the fundamental job duties of the employment position" at issue. 29 C.F.R. § 1630.2(n)(1) (emphasis added); see also D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1230 (11th Cir. 2005) (citing this definition with approval). This regulatory definition is consistent with the plain meaning of the word "function." See American Heritage Dictionary 711 (4th ed. 2000) (a "function" is an "[a]ssigned duty or activity"); Black's Law Dictionary (8th ed. 2004) (a "function" is an "activity" or a "duty"). The EEOC's definition of "function" is also consistent with Congress's clear pronouncement that "essential functions" means "job tasks that are fundamental and not marginal." H.R. Rep. No. 101-485(II), at 55 (1990), as reprinted in 1990 U.S.C.C.A.N. 267, 337 (emphasis added). The use of the term "duties" in the EEOC's regulatory definition is intended to distinguish between those aspects of a job that describe the means or manner of performance, which typically are not "functions," and those which describe the actual duties or tasks to be accomplished, which are. General job requirements prescribing the conditions of performance are not activities that must be performed. Thus, such requirements rarely will be job "functions" in their own right. See 29 C.F.R. Pt. 1630 App. § 1630.2(o) ("The essential functions are by definition those that the individual who holds the job would have to perform." (emphasis added)). This case illustrates the difference well. Except in rare circumstances, being "on time" is not an actual job duty or task in and of itself. Rather, when an employer requires punctuality it is prescribing a means or manner of performance - demanding that employees complete duties or tasks at or by a certain time or under certain circumstances. Thus, in most cases, "punctuality" is not a "function" of a job at all. See, e.g., EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html ("EEOC Enforcement Guidance"), at Q.22 (while "the time during which an essential function is performed may be critical," the schedule itself is nevertheless not an activity to be performed and hence not an essential function). The district court erred in concluding otherwise, failing to consider pertinent evidence, and misinterpreting the most apposite case law. The district court improperly ignored evidence strongly suggesting that Clairson (the company's protestations to the contrary notwithstanding) did not even consider punctuality to be one of the tasks or duties of Holly's job. The company's own written descriptions of the "Essential Functions" of a mold polisher list actual job duties or tasks such as "polishing mold components" and "cleaning and inspecting existing molds." This list does not include "punctuality." Instead, Clairson included a reference to punctual attendance in the "General Requirements" section of the mold polisher job description - for good reason. Given its ordinary, common- sense meaning, "punctuality" denotes a condition of performance prescribing when mold polishing should ordinarily start. It is not an activity a mold polisher performs and thus is not a "function" of Holly's job. The district court erred in ruling as a matter of law that it was. The district court relied in its analysis primarily on Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000). There, this Court concluded that "punctuality" was an essential function for a store area coordinator who was responsible for preparing a sales department for the store's opening (when she worked the morning shift) or relieving the store area coordinator who was working the prior shift (when she worked a later shift). Id. at 1366. However, in Earl, the precise question this Court addressed was whether "punctuality is an essential or merely marginal function of her job." Id. It thus appears that the litigants may have agreed (or assumed) that punctuality was a "function" of the job in question. Accordingly, this Court determined whether punctuality was an essential, as opposed to marginal, function - without analyzing the threshold question of whether punctuality was properly a job "function." In short, the Earl panel assumed punctuality was a function and never addressed the definitional argument being raised here. Accordingly, Earl should not preclude a determination that punctuality is not a job "function" in this case. The district court's reliance on Earl to conclude as a matter of law that punctuality was an essential function of Holly's mold polisher job was misplaced. Similarly, cases finding "attendance" and "mandatory overtime" to be essential functions should not serve to bar the EEOC's position in this case. In Jackson v. Veterans Administration, 22 F.3d 277 (11th Cir. 1994), a divided panel of this Court ruled that attendance was an essential function of a hospital housekeeping aide whose duties included emptying trash cans and cleaning floors and bathrooms. Id. at 278-79. The Jackson panel majority reasoned that, "[u]nlike other jobs that can be performed off site or deferred until a later day, the tasks of a housekeeping aide by their very nature must be performed daily at a specific location." Id. at 279. The majority opinion cited cases suggesting that an employee who does not come to work cannot perform any of the employee's job functions, essential or otherwise. Id. Consequently, the majority concluded, "being present on the job" - "presence on a routine basis" - is an inherent job function. Id. at 278-79. Jackson is distinguishable. The majority opinion did not consider the legislative history of the ADA or the EEOC's ADA regulations in ruling that "attendance" was an essential function (perhaps because Jackson arose under the Rehabilitation Act and not the ADA). As in Earl, the panel in Jackson did not address the argument we are advancing here - that "functions" rarely include means or methods of performance like "being present on the job." Furthermore, Jackson dealt with attendance - not punctuality - and the premise underlying the holding in that case is not present here. Unlike being absent and therefore unable to perform any functions, slight tardiness does not preclude an employee from performing his or her job. Attendance generally is analytically distinct from punctuality. In this particular case, even though Holly was tardy on occasion, he always was present and always got the job done. Thus, the Jackson panel's holding that attendance could be characterized as a "function" of the housekeeping aide job in question there (or even of most jobs) does not mandate that punctuality be considered a function of Holly's mold polishing position. For this reason, the majority opinion in Jackson stands as no bar to our argument. This Court's decision in Davis v. Florida Power & Light Co., 205 F.3d 1301 (11th Cir. 2000), is distinguishable for the same reason. There, this Court ruled that "mandatory overtime" was an essential function of the plaintiff's job of reconnecting electrical power service for a power company's customers. Id. at 1305-06. In Davis, the EEOC had filed an amicus brief presenting an argument similar to the one advocated here. The Court "reject[ed] the EEOC's argument that 'working overtime' can never be an 'essential function' of a job." Id. at 1306. The Davis panel complained that the "EEOC narrowly equates 'function' with task and argues that overtime is not a task to be performed." Id. This Court then explained that "[i]n effect, overtime work . . . at this electric utility company is akin to job presence, which has been held to be an essential function of a job." Id. In reaching this conclusion, Davis cited Jackson (and out-of-circuit cases). Id. Because "job presence" is not at issue here, Davis, like Jackson, is distinguishable. B. "Punctuality" Is Not "Essential" to Holly's Position In any event, even assuming punctuality could be a job function in general, there is at least a genuine issue of material fact as to whether punctuality was an "essential" function of Holly's mold polisher job in particular. The district court erred in ruling otherwise. "Whether a particular function is essential is a factual determination that must be made on a case by case basis" and "all relevant evidence should be considered." 29 C.F.R. Pt. 1630 App. § 1630.2(n); see also D'Angelo, 422 F.3d at 1230 (same). The EEOC's regulatory definition of "essential functions" emphasizes that the function must be "fundamental," not merely "marginal," to the job in question. See 29 C.F.R. § 1630.2(n)(1); see also H.R. Rep. No. 101-485(II), at 55 (1990), as reprinted in 1990 U.S.C.C.A.N. 267, 337 ("essential functions" are "job tasks that are fundamental and not marginal" (emphasis added)). The ADA directs that "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description . . . for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8); see also 29 C.F.R. Pt. 1630 App. § 1630.2(n) (same). EEOC regulations similarly provide a number of factors to consider in determining whether a particular function is essential, which include: (i) The employer's judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3); see also D'Angelo, 422 F.3d at 1230 (citing these factors). The regulations further explain that a job function may be considered essential for any of several reasons, including but not limited to: (i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. 29 C.F.R. § 1630.2(n)(2); see also D'Angelo, 422 F.3d at 1230 (citing these factors). The district court erred by failing to use this analytical framework. It ignored almost all of these factors and discounted the pertinent record evidence on this question. The district court summarily concluded that "it is within the employer's discretion to determine what job functions are essential and it is beyond dispute that Clairson made attendance and punctuality essential functions." Decision at 16-17. The district court thus deferred totally to Clairson's assertion of the importance of punctuality to the Clairson workplace generally (as evidenced by the universal applicability of its punctuality policy) to conclude punctuality was essential. The district court did so despite the statute's clear directive that an employer's judgment as to which functions are essential is but one "consideration" among many. See 42 U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(n)(3)(i) (evidence as to which functions are essential includes, but is not limited to, the employer's judgment on the matter); 29 C.F.R. Pt. 1630 App. § 1630.2(n) (the employer's judgment is "among the relevant evidence to be considered" (emphasis added)). At the same time, the district court inexplicably ignored the written descriptions Clairson prepared for Holly's particular job. See 29 C.F.R. Pt. 1630 App. § 1630.9 (an employer should conduct an "individual assessment" to determine the "true purpose or object of the job" and thus which job functions are essential to it); cf. Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 34-35 (1st Cir. 2000) (same). These job descriptions explicitly state that the "ability to arrive at work in a timely manner" is a "General Requirement" and not an "Essential Function" of mold polishing. This alone should have precluded summary judgment as to whether punctuality was an essential function of Holly's job. In addition, the district court speculated, without providing any record citation, that Holly must have been "slowing down production, increasing overhead, and potentially increasing overtime costs." See Decision at 16. In fact, there was no evidence that Holly's occasional tardiness slowed down production, increased overhead or overtime, or negatively affected any other employee's ability to perform in any way. To the contrary, Nilson and Miller both testified that Holly's work simply was not time-sensitive at all. Holly's supervisors hardly noticed when Holly arrived late. Holly had been allowed for years to make up time lost due to tardiness during breaks, at lunchtime, or after hours. Nilson even lobbied (albeit unsuccessfully) for Holly to be given a reprieve from the new punctuality policy. And Holly's supervisors consistently praised his reliability, dependability, and skills. Clearly, had Holly's tardiness had a negative impact on Clairson's operations, it is unlikely his superiors would have advocated to get Holly's occurrences reversed or been so consistently pleased with his overall performance. Given this evidence, there is at least a genuine issue of material fact as to whether requiring Holly to be at work on time without exception was fundamental to effective mold polishing. The district court erred in taking this quintessential factual question away from the jury. Summary judgment must therefore be reversed. See D'Angelo, 422 F.3d at 1230, 1234 (reversing the grant of summary judgment and remanding for a determination of whether a particular function was essential); Ward, 209 F.3d at 35 (reversing a determination that a "set schedule" was essential as a matter of law). II. THE DISTRICT COURT ERRED IN RULING AS A MATTER OF LAW THAT THERE WAS NO REASONABLE ACCOMMODATION THAT WOULD HAVE ENABLED HOLLY TO COMPLY WITH CLAIRSON'S PUNCTUALITY POLICY. The evidence suggests there is also a genuine issue as to whether a reasonable accommodation could have permitted Holly to comply with Clairson's punctuality policy. The district court ruled as a matter of law that the accommodation Holly requested was not reasonable. Decision at 19-21. This was reversible error. In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002), the Supreme Court ruled that a plaintiff may survive summary judgment on the question of whether a particular accommodation is "reasonable" by showing that the accommodation "seems reasonable on its face, i.e., ordinarily or in the run of cases." U.S. Airways, 535 U.S. at 401, 122 S. Ct. at 1523. The ADA itself specifically provides that "reasonable" accommodations include "modified work schedules" and/or "appropriate adjustment or modifications of [employer] policies." See 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii) (same). Thus, it generally will be reasonable to ask an employer to accommodate by "adjusting arrival or departure times" and/or "modifying leave or attendance procedures or policies." EEOC Enforcement Guidance at Q.22, Q.24. This is exactly the sort of accommodation Holly requested in this case. Holly simply asked that he be allowed to clock-in past his scheduled start time and make up the time on a break, over lunch, or after hours whenever he was late because of his disability. See R.25 at 2, 10, 11. Kilkelly, Clairson's President, testified that the punctuality policy included exceptions from discipline for medical emergencies - the cause of many of Holly's tardies. Therefore, Holly was merely requesting that Clairson grant exceptions the policy itself arguably allowed. At most, Holly was seeking an occasional minor modification to his schedule and an occasional exemption from the way in which the punctuality policy would typically be enforced. The district court concluded that this accommodation was not reasonable because it would require Clairson to eliminate the essential function of punctuality. However, Holly was not asking, as the district court concluded, to "be allowed to clock in whenever he wanted without repercussion," to "come and go as he pleases," or to "arrive at any time." Decision at 18-20. He did not expect Clairson to "ignore its attendance policy." Id. at 19. If Clairson had provided the accommodation Holly requested, Clairson's punctuality policy still would have applied with full force each time Holly was late for a non-disability-related reason. Holly was only seeking limited exceptions for tardiness caused specifically by his disability - exceptions the policy arguably even anticipated. Thus, Holly's request would not, as the district court ruled, require Clairson to eliminate the "essential function" of punctuality at all. The district court erred in ruling that it was unreasonable as a matter of law. See Ward, 209 F.3d at 36 (declining to hold that a "flexible schedule" is "per se unreasonable"). III. THE DISTRICT COURT ERRED IN RULING AS A MATTER OF LAW THAT HOLLY'S ADA CLAIM MUST FAIL UNLESS HOLLY CAN PROVE THAT CLAIRSON APPLIED ITS PUNCTUALITY POLICY IN A DISCRIMINATORY MANNER. The district court also erred in dismissing Holly's ADA claim on the ground that Holly failed to produce evidence that Clairson treated similarly situated non- disabled employees more favorably by exempting them from the punctuality policy. The district court fundamentally misunderstood the nature of Holly's ADA claim. Holly is not contending that Clairson applied the punctuality policy in a discriminatory manner. Rather, he is arguing that Clairson failed to provide a reasonable accommodation, a claim which, if proven, establishes a violation of the ADA. The statute plainly makes it unlawful to fail to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" absent undue hardship. See 42 U.S.C. § 12112(b)(5)(A); see also 29 C.F.R. § 1630.9(a) (same). Thus, Holly can prevail simply by demonstrating that his disability prevented him from complying with the punctuality policy and that Clairson unlawfully refused to provide a reasonable accommodation. This is disability-based discrimination under the ADA. The district court committed reversible error in requiring Holly to prove more. Cf. U.S. Airways, 535 U.S. at 397-98, 122 S. Ct. at 1521 (adherence to a neutral workplace rule will not inoculate an employer from liability under the ADA if an employee is entitled to a reasonable accommodation that would require the employer to deviate from such a rule). CONCLUSION For the foregoing reasons, we respectfully urge this court to reverse the district court's grant of Clairson's summary judgment motion and remand this case for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,988 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov CERTIFICATE OF SERVICE I certify that on August 17, 2006, I served the requisite number of originals/copies of this brief by mailing them first-class, postage prepaid, to: Thomas K. Kahn, Clerk U.S. Court of Appeals for the Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, GA 30303 George R. Baise Jr. George R. Baise Jr., P.A. 11007 Star Rush Place Lakewood Ranch, FL 34202 Dock A. Blanchard Blanchard, Merriam, Adel & Kirkland, P.A. 4 SE Broadway Street Ocala, FL 34471-2132 Edwin A. Green III Blanchard, Merriam, Adel & Kirkland, P.A. 4 SE Broadway Street P.O. Box 1869 Ocala, FL 34478-1869 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov