Diane Lovejoy-Wilson v. Noco Motor Fuels, Inc. 00-7919 00-7696 00 -7919(LEAD) & 00-7696 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT DIANE LOVEJOY-WILSON, Plaintiff-Appellant-Cross-Appellee, v. NOCO MOTOR FUELS, INC., Defendant-Appellee-Cross-Appellant. On Appeal from the United States District Court for the Southern District of New York BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF C. GREGORY STEWART VINCENT J. BLACKWOOD General Counsel Assistant General Counsel PHILIP B. SKLOVER SUSAN L.P. STARR Associate General Counsel Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4727 TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF INTEREST 1 JURISDICTIONAL STATEMENT 2 ISSUE PRESENTED 2 STATEMENT OF THE CASE 2 A. Nature of the Case and Course of Proceedings 2 B. Statement of Facts 3 C. District Court Decision 6 STANDARD OF REVIEW 7 SUMMARY OF ARGUMENT 8 ARGUMENT 10 AN EMPLOYER MUST REASONABLY ACCOMMODATE AN EMPLOYEE'S DISABILITY ONCE IT IS AWARE OF THE EMPLOYEE'S NEED FOR AN ACCOMMODATION UNLESS IT CAN SHOW THAT THE ACCOMMODATION WOULD CAUSE UNDUE HARDSHIP 10 CONCLUSION 19 CERTIFICATE OF COMPLIANCE 20 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Albee Tomato, Inc. v. A.B. Shalom Produce Corp, 155 F.3d 612 (2d Cir. 1998) 8, 14 Baert v. Euclid Beverage Ltd., 149 F.3d 626 (7th Cir. 1998) 15 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) 11, 15, 16 Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir. 1999) 15 Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928 (7th Cir. 1995) 11 Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) 10, 14, 15 Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999).............................................10 Jackan v. New York State Department of Labor, 205 F.2d 562 (2d Cir. 2000) 14 MacDonald v. Safir, 206 F.3d 183 (2d Cir. 2000) 7 Podell v. Citicorp Diners Club, Inc., 112 F.3d 98 (2d Cir.1997) 7 CASES (cont.) Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) 10 Taylor v. Phoenixville Sch. District, 184 F.3d 296 (3d Cir. 1999) 15 STATUTES, RULES AND GUIDANCE 29 C.F.R. § 1630.2(n)(1) 13 Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. passim EEOC Enforcement Guidance: "Reasonable Accommodation and Undue Hardship Under the ADA, 8 Fair Empl. Prac. Manual [BNA] at 405:7601 et seq. .......10-11, 13, 17 Fed. R. App. P. 29(d) 18 Fed. R. App. P. 32 (a)(7)(B)...........................................18 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________ Nos. 00-7919 & 00-7696 ______________________ DIANE LOVEJOY-WILSON, Plaintiff-Appellant-Cross-Appellee, v. NOCO MOTOR FUELS, INC., Defendant-Appellee-Cross-Appellant. On Appeal from the United States District Court for the Western District of New York BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress to administer, interpret, and enforce Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and other federal fair employment laws. This appeal raises important questions concerning an employer's duty of reasonable accommodation under the ADA. Given the importance of these issues to effective enforcement of the ADA, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. JURISDICTIONAL STATEMENT The Commission defers to the jurisdictional statements of the parties. ISSUES PRESENTED<1> 1. Whether the district court erred in holding that defendant, which admittedly denied plaintiff a promotion to a managerial position for a year and a half because of her disability-related inability to drive, satisfied its duty under the ADA to provide reasonable accommodation for plaintiff's disability by finally promoting her to a position that did not entail driving. 2. Whether there was sufficient evidence to support a finding that plaintiff could have performed the essential functions of the management positions she was denied with a reasonable accommodation which would not have caused defendant undue hardship. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final order of the district court dismissing this action brought by plaintiff against her former employer. Plaintiff alleges, inter alia, that defendant violated the ADA by failing to provide reasonable accommodation for her disability, by denying her promotion and terminating her because of her disability, and by retaliating against her for filing a charge with the EEOC. JA<2> at 25. On December 29, 1999, the district court granted Noco's motion for summary judgment dismissing the action in its entirety because there was insufficient evidence that plaintiff was forced to resign because of her disability. JA at 829-41. On January 5, 2000, plaintiff moved for reconsideration pointing out that the court failed to address her accommodation, promotion and retaliation claims. JA at 7, 844-53. On July 5, 2000, the district court issued an amended order dismissing the action which includes a discussion of all of plaintiff's claims. JA at 880-91. 2. Statement of Facts Diane Lovejoy-Wilson ("Lovejoy") worked as a clerk at a convenience store in Buffalo, New York, operated by Noco Motor Fuels and its predecessor<3> from August 1992 through September 1994. JA at 897-98. Lovejoy has epilepsy and, during the time period relevant to this action, she was experiencing seizures on a daily basis. JA at 897. Due to her seizures, Lovejoy did not have a valid driver's license. JA at 898. In December 1992, Lovejoy was recommended by the manager of her store for the position of assistant manager at that store. JA at 67-68, 775. However, Peter Heyden, Noco's manager, rejected this recommendation because Lovejoy did not drive. JA at 775. Heyden knew at the time that Lovejoy could not drive because she had epilepsy.<4> JA at 302. According to Noco, assistant managers and managers must be able to drive primarily so that they can drive the store's receipts to the bank for deposit. JA at 373-76. The job descriptions for assistant manager and manager both include transporting the receipts to the bank but neither requires the ability to drive or possession of a valid driver's license. JA at 309-16. A manager and/or area manager were typically on duty along with assistant managers on weekdays. JA at 362-67. When Lovejoy later inquired about the driver's license requirement and notified Noco's management office of her epilepsy in January 1993, Penny Strausberger, Noco's director of personnel, stated that their insurance carrier would not cover Lovejoy if anyone else was in the car with her when she delivered the receipts to the bank. JA at 302, 429-30, 775. The turnover for assistant manager positions was "high" and Lovejoy applied for all the vacant assistant manager positions about which she became aware from January 1993 through mid-May 1994. JA at 171-173, 192. Noco denied all her applications because she did not hold a valid driver's license.<5> JA at 173, 404-416. In early January 1994<6>, Strausberger informed Lovejoy for the first time that a driver's license was not required for assistant manager positions at four out of its 60 stores in the Buffalo area because receipts were picked up by armored car.<7> JA at 268. Strausberger suggested that Lovejoy could be considered for a position at one of those stores when a vacancy arose. Id. Lovejoy responded with a letter referring to her rights under the ADA and suggesting that Strausberger's proposal that she wait for a vacancy at one of the "armored car stores" was not reasonable when other assistant manager positions were available. JA at 775-79. In the letter, Lovejoy offered six possible accommodations which would permit her to make the bank deposits without a driver's license.<8> JA at 779. Noco's president responded with a letter stating that "the ADA is not for intimidating employers to change non-discriminatory operational policies." JA at 576. He characterized statements in Lovejoy's letter as "slanderous," and stated that Noco would take legal action if they continued. Id. The letter concluded with the statement that this was "Noco's final position" and the company "will not be entertaining further communication on this matter." Id. Soon after receiving the letter from Noco's president, Lovejoy filed a charge with the EEOC alleging that Noco violated the ADA by denying her a promotion to assistant manager and by threatening legal action when she complained about its failure to accommodate her disability. JA at 300. A couple of months later, Lovejoy had a seizure at work. JA at 552. When Noco received official notice of the incident, Lovejoy was immediately taken off the work schedule, without pay, and required to undergo a physical examination. JA at 550, 556, 560-63. Lovejoy filed an unemployment application with the New York State Department of Labor, stating that she was discharged in "retaliation for asking for a promotion." JA at 556. Soon thereafter, Noco returned Lovejoy to paid status and eventually reimbursed her lost wages. JA at 28. At the end of May 1994, Noco promoted Lovejoy to assistant manager in an armored-car store. JA at 780. 3. District Court Decisions On December 29, 1999, the district court granted Noco's motion for summary judgment. The court held that, although there was sufficient evidence that Lovejoy was a qualified person with a disability because she adequately fulfilled her responsibilities as an assistant manager without an accommodation, there was insufficient evidence to support a claim that she was forced to resign from Noco. JA at 837-40. After Lovejoy filed a motion pointing out that the court failed to address her accommodation and retaliation claims, the district court amended its earlier order to include dismissal of those claims as well. JA at 880-91. The court held, inter alia, that Noco's eventual promotion of Lovejoy to assistant manager at an armored-car store satisfied Noco's obligation to provide a reasonable accommodation.<9> JA at 885-86, 890. The court held that, although Lovejoy would have preferred a position at a store closer to her home, "[t]he ADA does not require employers to provide a disabled employee the best accommodation available." JA at 885. The court did not address the question of whether Lovejoy's inability to drive could have been accommodated in the non-armored-car stores without undue hardship. STANDARD OF REVIEW This Court reviews de novo a district court's order granting summary judgment. See MacDonald v. Safir, 206 F.3d 183, 190 (2d Cir. 2000). This Court reviews the record in the light most favorable to the party opposing summary judgment, drawing all reasonable inferences in its favor. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 100 (2d Cir.1997). On the affirmative defense of undue hardship where the defendant bears the burden of proof, summary judgment is proper only if there is no genuine issue of material fact, and undisputed facts entitle the movant to judgment as a matter of law. See Albee Tomato, Inc. v. A.B. Shalom Produce Corp, 155 F.3d 612, 617 (2d Cir. 1998). SUMMARY OF ARGUMENT The ADA requires an employer to provide an otherwise qualified employee with a disability with reasonable accommodations that enable the employee to perform essential job functions and do not cause the employer any undue hardship. The evidence in the record is sufficient to support a finding that Lovejoy could have performed the essential functions of the assistant manager jobs she sought if Noco had accommodated her inability to drive. However, Noco consistently refused to modify the driving requirement despite the fact that Lovejoy advanced several proposals which would have allowed her to perform all of the job functions including banking without driving a car. Noco argued in the district court that Lovejoy's proposals were not reasonable accommodations because driving is an essential function of the assistant manager positions Lovejoy sought. This argument mistakenly conflates job "functions," which refers to essential tasks or duties the employer needs performed, with other requirements that speak to the manner in which those tasks or duties are performed. Driving to the bank is not an essential function of the job but rather the manner in which Noco assistant managers perform the banking function of their job. Accordingly, even if banking is an essential function of the positions Lovejoy sought, driving is not. Noco did not expressly argue in district court that it would have experienced undue hardship if it modified the duties of the assistant manager position to accommodate Lovejoy's inability to drive. The record would not support summary judgment for Noco on this issue, as to which it bears the burden of proof. In any event, Noco's utter failure to engage in an interactive process with Lovejoy should preclude summary judgment for the company. When an employee seeks an accommodation, the employer has a duty to make reasonable efforts to assist the employee and to communicate with her in good faith to determine what reasonable accommodations are available to allow the employee to perform the essential job functions of the position sought. We urge this Court to join those courts which have held that an employer cannot prevail on summary judgment where it has failed to engage in the interactive process in good faith. ARGUMENT AN EMPLOYER MUST REASONABLY ACCOMMODATE AN EMPLOYEE'S DISABILITY ONCE IT IS AWARE OF THE EMPLOYEE'S NEED FOR AN ACCOMMODATION UNLESS IT CAN SHOW THAT THE ACCOMMODATION WOULD CAUSE UNDUE HARDSHIP. The Americans with Disabilities Act ensures full employment opportunities for individuals with disabilities by requiring reasonable accommodation of employees' disabilities by their employers. Failure to make a reasonable accommodation to the known physical limitation of an otherwise qualified individual is a form of discrimination under the Act for which an employer is liable unless it can "demonstrate that the accommodation would impose an undue hardship on the operation of the business." 42 U.S.C. § 12111(b)(5)(A); see Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999) ("an employer who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter what its intent, unless it can show that the proposed accommodations would create undue hardship for its business"); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1169 (10th Cir. 1999) (en banc) ("The unvarnished obligation derived from the statute is this: an employer discriminates against a qualified individual with a disability if the employer fails to offer a reasonable accommodation."). Consistent with the statute's mandate that employers must accommodate a "known" disability, once the employee notifies the employer that it needs a change in a work requirement due to a medical condition, the employer's obligation to work together with the employee to ascertain possible reasonable accommodations is triggered. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir. 1998) ("[a] request as straightforward as asking for continued employment is a sufficient request for accommodation"); EEOC Enforcement Guidance: "Reasonable Accommodation and Undue Hardship Under the ADA, 8 Fair Empl. Prac. Manual [BNA] at 405:7601, 7605 (1999) ("ADA Enforcement Guidance"). Noco's obligation to reasonably accommodate Lovejoy by modifying the driving requirement in non-armored car stores was triggered when it learned that she was interested in an assistant manager position but could not drive because of her epilepsy. Lovejoy stated in an affidavit that, when Noco retracted its first promotion offer in December 1992,<10> and again in January 1993, she told two different Noco officials that she did not maintain a driver's license because of her epilepsy and appealed for an opportunity to work as a manager notwithstanding this impairment.<11> Noco's only response was to repeatedly reject her requests for promotion; the record reflects no effort on Noco's part to ascertain whether any modifications could have been made that would have permitted her to perform the essential functions of those jobs. There is sufficient evidence in the record to support a finding that, in fact, Lovejoy could have performed the essential functions of the assistant manager position with a reasonable accommodation. Her manager first recommended her for promotion in December 1992 and the evidence is overwhelming that Lovejoy was able to successfully perform all the functions of the assistant manager job, except driving the deposits to the bank, throughout the period when Noco was rejecting her requests for promotion.<12> Noco argued in the district court that Lovejoy could not perform the job of assistant manager in non-armored car stores because she did not maintain a valid driver's license. However, if Lovejoy could perform the essential functions of the managerial position "with or without an accommodation," she would be qualified for assistant manager jobs in non-armored car stores under the ADA. 42 U.S.C. § 1211(b)(5)(A). It is clear from the record that driving is not an essential function of the desired assistant manager positions. The term "essential functions" refers to the "fundamental job duties of the employment position the individual with a disability holds or desires." 29 C.F.R. § 1630.2(n)(1). Driving is not one of the "fundamental job duties" of the assistant manager positions Lovejoy sought. On the contrary, it is apparent that driving is not a job duty at all. Noco asserts that assistant managers must be able to drive only so that they can take the store receipts to the bank for deposit. Thus, rather than a job duty, driving is merely a means of accomplishing the task of depositing receipts. Cf. ADA Enforcement Guidance at 405:7618, n.61 (job functions refer only to essential tasks or duties to be performed). Lovejoy proposed to Noco several ways in which she could deposit store receipts without driving. These proposals would have permitted her to perform the one function of the assistant manager position with which her epilepsy interfered. Furthermore, although it is undisputed that making bank deposits was a function of the assistant manager position, it is far from clear that it was an "essential function." There was evidence that, on most days, there was more than one manager present at a store. JA at 362-67 (on weekdays, Noco typically scheduled higher level managers along with the assistant manager). Accordingly, there is a question of fact as to whether Lovejoy could have performed the essential functions of the job she sought if Noco permitted her to make the bank deposits without driving or reassigned this function to another manager. Noco is required by the ADA to offer Lovejoy a reasonable accommodation unless it can prove that to do so would create an "undue hardship." See 42 U.S.C. § 12112(5)(A), 12111(10). Undue hardship is "an action requiring significant difficulty or expense." 42 U.S.C. § 12111(10)(A). Noco did not expressly argue in district court that it would have experienced undue hardship if it modified the duties of the assistant manager position to accommodate Lovejoy's inability to drive. Although the company alluded to concerns about security if Lovejoy did not drive the deposits to the bank herself, the evidence in the record cannot support summary judgment for Noco on this issue as to which it bears the burden of proof. See Albee Tomato, Inc., 155 F.3d at 617 (summary judgment proper only if movant with burden of proof produces evidence entitling it to judgment "as a matter of law"). In any event, Noco's utter failure to engage in an interactive process with Lovejoy should preclude summary judgment for the company. The employee has the initial obligation to notify the employer of her disability. Hendricks-Robinson, 154 F.3d at 693. See generally, Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000) ("The ADA envisions an 'interactive process' by which employers and employees work together to assess whether an employee's disability can be reasonably accommodated."). At that point, the ADA "imposes a duty upon employers to engage in a flexible interactive process with the disabled employee needing accommodation so that, together, they might identify the employee's precise limitations and discuss accommodation which might enable the employee to continue working." Hendricks-Robinson, 154 F.3d at 693 (internal citation omitted); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315 (3d Cir. 1999) ("Once the employer knows of the disability and the employee's desire for accommodations, it makes sense to place the burden on the employer to request additional information that the employer believes it needs."). The interactive process is a key mechanism for facilitating the implementation of the ADA. It is for that reason that several circuits have held that an employer cannot prevail on summary judgment when it fails to communicate with the employee about possible accommodations. Barnett v. U.S. Air Inc., 228 F.3d 1105, 1115 (9th Cir. 2000) ("an employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process."); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 953 (8th Cir. 1999) ("we find that summary judgment is typically precluded when there is a genuine dispute as to whether the employer acted in good faith and engaged in the interactive process of seeking reasonable accommodations"); Taylor, 184 F.3d at 318 ("where there is a genuine dispute about whether the employer acted in good faith, summary judgment will typically be precluded); Baert v. Euclid Beverage Ltd., 149 F.3d 626, 633-34 (7th Cir. 1998) (summary judgment denied where there exists factual dispute about which party caused breakdown in interactive process). Such a ruling makes sense because, without facing the risk of liability, employers have little incentive to discuss potential accommodations. In fact, without such a rule, employers who effectively stonewall and keep valuable information about possible accommodations from the requesting employee could be placed in a better position than those who engage in a good faith dialogue, trying to identify possible accommodations. As the Ninth Circuit recently observed, "[T]his is a long way from the framework of cooperative problem solving based on open and individualized exchange in the workplace that the ADA intended." Barnett, 228 F.3d at 1116. We urge this Court to adopt such a ruling so as to discourage employers from stonewalling and attempting to intimidate employees who request reasonable accommodations as Noco appears to have done in this case. The district court granted summary judgment without considering whether the accommodations suggested by Lovejoy would have been effective or would have caused Noco undue hardship. The court held that Noco satisfied its reasonable accommodation duty by promoting Lovejoy to an assistant manager position at a store where receipts are picked up by an armored car almost a year and a half after it first turned down her request for promotion. JA at 884-86. According to the court, Lovejoy's desire for promotion to a position in the store where she worked as a clerk was merely a matter of convenience and need not be considered in assessing whether Noco violated the ADA. JA at 886. The district court erred when it held that Noco's belated promotion of Lovejoy to a position in an armored-car store constituted a reasonable accommodation which vitiated her claim that the company violated the ADA by denying her earlier vacant positions in other stores. The court overlooked the fact that by making Lovejoy wait for a vacancy at an armored-car store, Noco deprived her of the opportunity to work as a manager for a year and a half. An employer violates the ADA if it unreasonably delays in providing a requested reasonable accommodation. See ADA Enforcement Guidance at 405:7610-11, n.35 (listing factors to be considered when determining whether there has been "unnecessary delay" in providing accommodation). The EEOC's Guidance provides that, "In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for the delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide." Id. at 405:7611, n.35. In this case, all of these factors compel the conclusion that, insofar as the May 1994 was a reasonable accommodation provided in response to Lovejoy's request, it was unnecessarily delayed. Noco's duty under the ADA was triggered in December 1992 when Lovejoy told Noco that she wanted to be promoted to assistant manager, but did not have a driver's license because of her epilepsy. If Noco had promptly offered her placement as assistant manager in one of the four armored-car stores, there would be an argument that, by offering Lovejoy such placement, Noco met its obligation under the Act. However, Noco failed to offer Lovejoy the position of assistant manager at an armored-car store for a year and a half despite numerous vacancies at other stores. No explanation for the delay appears in the record other than Noco's stubborn insistence that it would not modify its policies. At most, that belated offer served to mitigate Noco's liability for backpay. But it cannot be said, as the district court held, that it cured the ADA violation occurring between December 1992 and May 1994. CONCLUSION For the foregoing reasons, we urge this Court to reverse the district court's dismissal and remand this case to the district court for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________ SUSAN L.P. STARR Attorney Equal Employment Opportunity Commission 1801 L Street,N.W., Ste. 7020 Washington, D.C. 20507 202/663-4726 November 29, 2000CERTIFICATE OF COMPLIANCE Pursuant to 2d Cir. R. 32(b), I certify that this brief complies with the type-volume limitation set forth in Fed.R.App.P. 32(a)(7)(B). This brief contains 4548 words. See Fed. R. App. P. 29(d). The brief was prepared using the WordPerfect 8 processing system, in 13-point proportionally spaced type for text and 13-point type for footnotes. See Fed. R. App. P. 32(a)(5). _________________________ SUSAN L.P. STARR November 29, 2000 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent via first class mail, postage prepaid, to the following counsel of record: Counsel for Plaintiff-Appellant Lovejoy-Wilson CONNORS & VILARDO, LLP Margaret L. Phillips, Esq. 1020 Liberty Building Buffalo, NY 14202 Counsel for Defendant-Appellee Noco Motor Fuels, Inc. BUCHANAN INGERSOLL P.C. Linda H. Joseph, Esq. 268 Main Street, Suite 201 Buffalo, NY 14202 _________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Suite 7020 Washington, D.C. 20507 November 29, 2000 1 The Commission takes no position on any other issues raised in this appeal. 2 "JA" denotes Joint Appendix. 3 Noco bought out Cumberland Farms in December 1992. JA at 299, 339. 4 Lovejoy stated in an affidavit that she told Heyden in December 1992 that she could not drive because of her epilepsy. JA at 302. In an unsworn, handwritten statement dated April 1994, Heyden stated that he first became aware that Lovejoy's "seizures were the result of a [sic] epilepsy condition back in December of 1993 through a mutual friend." JA at 565. 5 In April 1994, the director of personnel denied Lovejoy a promotion because of "cash shortages" at her store. JA at 304. The letter then "encourage[d]" her to continue "to apply for promotion to other management positions." JA at 304. Jeff Sexton, a Noco manager who approved promotions, testified that although Lovejoy had been written up for cash problems, the reason she was not promoted to assistant manager was because she did not have a driver's license. JA at 416, 431-32, 442. 6 The letter is dated January 5, 1993. JA at 268. However, the district court found that the letter was, in fact, written and received in January 1994. JA at 897 n.1. Neither party disputes this conclusion. 7 Jeff Sexton, a Noco manager, stated that Noco had only three "armored-car" stores in middle to late 1993. JA at 377. 8 Lovejoy proposed the following accommodations: (1) another manager could drive her to the bank; (2) Lovejoy could hire a service to transport her to the bank; (3) Noco could hire a driving service to transport Lovejoy to the bank; (4) Lovejoy could hire an individual to drive her to the bank; (5) Noco could hire an individual to drive Lovejoy to the bank; and (6), when practical, Lovejoy could use public transportation. JA at 779. 9 The court stated that Lovejoy first requested promotion to assistant manager in December 1993, citing a letter from the director of personnel rejecting a December 1993 promotion request. JA at 884. 10 The district court erroneously stated that Lovejoy first sought a promotion in December 1993. JA at 884. Nowhere in the record does Noco challenge Lovejoy's testimony and sworn statements that she was originally denied a promotion in December 1992, and again denied at least four separate promotions in 1993. The record portion cited by the court is merely a response to one of Lovejoy's 1993 promotion requests. See JA at 303. Moreover, even if the court were correct, Noco's refusal to modify the driver's license requirement in its non-armored car stores at that time violated the ADA. See generally, Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1117 (9th Cir. 2000) (en banc) (five month delay after employee's initial accommodation request is not consistent with employer's ADA's obligations). 11 One of the Noco officials stated he knew Lovejoy was having seizures at work prior to December 1993, although he states that he did not know until then that the seizures were due to epilepsy. JA at 565. However, if the official was aware of her seizures, he was aware of her epilepsy because the two are indistinguishable. See, e.g., Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928, 934 (7th Cir. 1995) ("If an employer admitted it fired the employee because of his frequent seizures, a reasonable inference might be drawn that the employer knew the employee had a disability."). Moreover, it is undisputed that, in January 1993, Lovejoy told the director of personnel that she could not drive because of epilepsy. JA at 302. Because all inferences must be drawn in favor of the non-moving party, it is proper to conclude that Noco was aware since December 1992 that Lovejoy could not drive due to her epilepsy. 12 The only contrary evidence is a statement by a Noco official that, unlike all the other promotion denials, the denial in April 1994 was because of "cash shortages" at her store. This statement was contradicted by another Noco official who stated that the lack of a driver's license, not cash shortages, was the primary reason for the April 1994 promotion denial. See supra at n.5.