IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ________________________ No. 10-7039 ________________________ ELIZIBETH MAYES, Plaintiff-Appellant, v. WHITLOCK PACKAGING CORP., Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Eastern District of Oklahoma, No. 09-278 _____________________________________________________ BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL _____________________________________________________ P. DAVID LOPEZ ANNE NOEL OCCHIALINO Deputy General Counsel Attorney VINCENT BLACKWOOD EQUAL EMPLOYMENT OPPORTUNITY Acting Associate General Counsel COMMISSION LORRAINE C. DAVIS Office of General Counsel Assistant General Counsel 131 M Street N.E., 5th Floor Washington, D.C. 20507 (P) (202) 663-4724 (F) (202) 663-7090 Annenoel.Occhialino@eeoc.gov TABLE OF CONTENTS Page STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case and Course of Proceedings. . . . . . . . . . . . . . 3 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO WHITLOCK BECAUSE A REASONABLE JURY COULD FIND THAT WHITLOCK FAILED TO MEET ITS BURDEN OF SHOWING THAT MAYES POSED A DIRECT THREAT TO OTHERS OR HERSELF BECAUSE OF HER SEIZURES. . . . . . . . . . . . . . . . . . . . . . 9 A. A jury could find that Whitlock did not have an objectively reasonable belief that Mayes posed a direct threat to others. . . . . . . . . . . . . . 11 B. A jury could also find that Whitlock did not have an objectively reasonable belief that Mayes posed a direct threat to herself. . . . . . . . 22 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page(s) Cases Bragdon v. Abbott, 524 U.S. 624 (1999). . . . . . . . . . . . . . . . . . . .10 Borgialli v. Thunder Basin Coal, 235 F.3d 1284 (10th Cir. 2000). . . . . . 14 Chevron v. Echazabal, 536 U.S. 73 (2002). . . . . . . . . . . . . . . . . . 9 Den Hartog v. Wasatch Acad., 129 F.3d 1076 (10th Cir. 1997). . . . . . . 14, 15 EEOC v. Convergys Customer Mgmt. Group, 491 F.3d 790 (8th Cir. 2007). . . . 20 Jarvis v. Potter, 500 F.3d 113 (10th Cir. 2007). . . . . . . . . . . . passim Justice v. Crown Cork & Seal Co., 527 F.3d 1080 (10th Cir. 2007). . 12, 13, 16 LaChance v. Duffy's Draft House, 146 F.3d 832 (11th Cir. 1998). . . . . . 27 Lindahl v. Air France, 930 F.2d 1434 (9th Cir. 1991). . . . . . . . . . . . 23 Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208 (2d Cir. 2001). . . . . .25, 27 Lowe v. School, 363 Fed. Appx. 548 (10th Cir. 2010). . . . . . . . . . . . 20 McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004). . . . . . . . . . . . . .14 Moses v. Am. Nonwovens, Inc., 97 F.3d 446 (11th Cir. 1996). . . . . . . . . .27 Nunes v. Wal-Mart, 164 F.3d 1243 (9th Cir. 1999). . . . . . . . . . . . . . 25 Sch. Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). . . . . . . . . . 10 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). . . . . . . . 19 Whitney v. Bd. of Educ. of Grand County, 292 F.3d 1280 (10th Cir. 2002). . . . . . . . . . . . . . . .13, 14, 16 Statutes 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12101(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 42 U.S.C. § 12113(b). . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 9 Regulations and Guidances 29 C.F.R. § 1630.2(r). . . . . . . . . . . . . . . . . . . . . . . . . . passim 29 C.F.R. Part 1630, App. § 1630.2(r). . . . . . . . . . . . . . . . . . passim EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (10/17/02), available at www.eeoc.gov/policy/docs/accommodation.html. . . . . . . . 20, 21 Questions and Answers about Epilepsy in the Workplace and the ADA, available at www.eeoc.gov/facts/epilepsy.html. . . . . . . . . . . . . . . . . . . . . .28 Rules Federal Rule of Civil Procedure 29. . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF INTEREST Congress charged the Equal Employment Opportunity with administering, interpreting and enforcing Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. This appeal raises questions concerning the proper application of the ADA's "direct threat" defense and whether the district court erred in concluding on summary judgment that the defendant had met its burden of showing that the plaintiff's seizure disorder made her a direct threat. In the Commission's view, this ruling was contrary to the ADA, the Commission's regulations and policy guidance, and this Court's precedent. Because the court's ruling threatens to undermine the Commission's enforcement of the ADA and to adversely affect other ADA litigants, the Commission offers its views to the Court. See Fed. R. App. P. 29. STATEMENT OF THE ISSUE<1> Whether the district court erred in ruling on summary judgment that the employer met its burden of showing that the plaintiff, who had a seizure disorder and bit a co-worker during a seizure, posed a "direct threat" to the health or safety of others and herself, i.e., that she posed a significant risk of substantial harm that could not be eliminated or reduced by reasonable accommodation. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court granting summary judgment. Plaintiff Elizibeth Mayes alleged that Defendant Whitlock Packaging Corporation violated the ADA when it fired her for "workplace violence" after she bit a co-worker while in the throes of a seizure. The district court granted summary judgment on the grounds that as a matter of law Mayes posed a direct threat to her co-workers and herself.<2> 2. Statement of Facts For the last twenty-five years, Mayes has experienced multiple seizures as a result of a seizure disorder. JA44; 208. The seizures are unpredictable and not controlled by medication. JA45; JA208. When Mayes has a seizure, which can last up to fifteen minutes, she is unaware of her surroundings. JA50. After a seizure, Mayes experiences a recovery period before she is fully aware of her surroundings. JA208. Mayes' seizures can be triggered by hormonal changes and stress caused by fear and rejection. JA46-47. During the last five years, Mayes' mother-in-law, Bluie Mayes, has witnessed more of Mayes' seizures than anyone besides Mayes' husband. JA135- 36. Bluie has never been injured. JA163-64. She explained that she knows she is "not able to do anything . . . so [she] just do[es]n't get that close." JA164. In March 2008, Mayes interviewed with Whitlock, which manufactures non- carbonated beverages and energy drinks, for an accounting clerk position. JA39. She disclosed that she had a seizure disorder. JA85. She was hired and began work on March 31, 2008. JA180. Whitlock made some accommodations for Mayes, whose duties included entering data accounts into the computer for the companies assigned to her. JA69-70. While Mayes normally would have needed to obtain paperwork from the facility operations (where there was machinery and equipment, which could injure her during a seizure), Whitlock had the paperwork delivered to her. JA148. Whitlock also allowed Mayes to hand out bookmarks from the Epilepsy Foundation with information about how to recognize seizure symptoms and how to administer first aid. JA81. The bookmark instructed individuals that they should not "grab hold" of someone during a seizure. JA167- 68. Rather, they should block hazards, speak calmly, and remain nearby until the seizure ended. Id. Mayes also instructed her co-workers that if they touched her during a seizure she would become physically aggressive because she would think they were trying to hurt her. JA91. Instead of touching her or grabbing something from her hand, Mayes explained, people should talk calmly to her and show her what they wanted her to do and she would comply. JA91. Whitlock also allowed Mayes to go home early when she had seizures. JA88. Mayes, who "just like[s] to work," JA94, did well at Whitlock. Her work did not cause her any stress, and Mayes testified that she received positive 30-day and 60-day reviews and was told Whitlock would skip her 90-day evaluation because "they were happy with [her] work." JA63, JA82. Mayes' supervisor, Carol Chambers, also testified that Mayes' 30-day review meeting was "very positive" and that despite some concerns, Mayes' 60-day review meeting was "still a positive meeting." JA171, JA174. While Mayes was friends with some employees, JA72, JA107, interactions with other co-workers caused her some stress. Two co-workers would get upset when Mayes would finish her work early and ask if she could help them with their work. JA64. Mayes felt some stress and rejection when other co-workers failed to invite her to lunch, which she believed was because of her disorder. JA66, JA74. The rejection reminded Mayes of similar feelings she had when she was abused as a child. JA74. But Mayes could not "state for a fact" whether the stress of being excluded from lunch caused her seizures. JA75. During the next five-and-a-half months, Mayes had about fifteen seizures at work. JA80. During one seizure she hit her head and bled on the desk and floor, and the lens popped out of her glasses. JA95; JA113. During others seizures she nicked her finger and bumped her head. JA110. When Mayes called out for help during one seizure, her supervisor, Carol Chambers, reached out to steady her. JA119. Mayes grabbed Chambers' arm, leaving visible fingernail indentations. JA119. Whitlock never discussed this incident with Mayes, however. JA161. Mayes also yelled and kicked during a seizure, prompting Human Resources Manager Marie Bishop to move away from her. JA107,¶ 6. On September 22, 2008, Mayes had another seizure at work in the presence of Bishop and co-worker Pam Webb. JA108,¶ 8. When Mayes began kicking her legs, her roller chair moved backwards. Id. Concerned that Mayes might fall, Webb put her hand on the back of the chair. Id. Mayes bit Webb and held on until Bishop twice asked her to let go. Id. Webb's arm was swollen and bruised. JA116,¶9; JA117-18. She experienced numbness in her hand, for which she sought medical attention, and she still occasionally experiences numbness in her arm and tingling in her hand. Id. After the seizure, Mayes went home. No one told her she had bitten Webb, and Mayes was unaware of what she had done. R.39-2,pg.140. The next day Mayes went to work and was told she had bitten Chambers and "we can't have you anymore." JA140. She was told to get her stuff and leave without saying good- bye. JA140. She also testified that she was "probably crying" when Bishop told her she had bitten Webb and would be fired and asked Webb, "Do you want to sue me if I really bit you?" JA140. An inter-office memorandum signed by Mayes' supervisor states that the reason was "violence in the workplace-bit co-worker." JA169. Keith Bishop, the decisionmaker, also wrote an internal memorandum memorializing the termination. JA182. He explained that although Mayes had had seizures before, she had hurt only herself. But, he wrote, "yesterday we moved into a different arena in which [Mayes] actually bit an employee." Id. Out of concern for the staff, he had "no choice but to terminate Mayes." Id. Bishop also expressed concern that Mayes was insufficiently apologetic about the incident and instead stated that Webb could sue her. Id. Similar to what he wrote in the memo, Bishop testified that he "certainly had no issues whatsoever with the seizure activity that had occurred [previously], because in [his] mind [Mayes] was hurting only herself." JA187. But once Mayes had bitten Webb, he decided to fire her out of concern for others. JA188. Prior to Mayes' termination, no one discussed the bookmark Mayes had handed out or the recommendations that it made as to how to deal with people having seizures. JA189. After her termination, Mayes's seizures happened more frequently and her anti-stress medication was increased. JA62; JA52. Four months after her termination, she fell down the stairs while working at Bacone College and broke her neck, chipped her teeth, and hurt her knee and ankle. JA100. During the EEOC's investigation of Mayes' charge of discrimination, Whitlock submitted a letter again asserting that it fired Mayes because she had "become violent toward another employee." JA178. Nowhere in the letter did Whitlock assert that it had fired Mayes because she also posed a threat to herself; to the contrary, the letter states that her seizures were not a problem until she bit Webb. JA177-79. Mayes subsequently filed suit, alleging that her termination violated the ADA, and Whitlock filed a motion for summary judgment. 3. District Court's Decision The district court granted summary judgment for Whitlock on the grounds that Mayes posed a direct threat under 42 U.S.C. § 12113(b). Quoting the EEOC's regulation at 29 C.F.R. § 1630.2(r), the court stated that the determination of whether an individual poses a "direct threat" shall be made based on "'a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence,'" including the duration of the risk, the nature and severity of the potential harm, the likelihood of the harm occurring, and the imminence of the potential harm. JA213 (quoting 29 C.F.R. § 1630.2(r)). The court acknowledged that employers generally bear the burden of showing direct threat and that the ADA does not require employers to obtain independent medical examinations. JA213-14. Here, the court said, Mayes had experienced fifteen seizures at Whitlock and had injured herself and others during a few of them. JA214. Additionally, the court said, Mayes testified that she becomes physically aggressive during seizures when others touch her or try to force her to move. Id. Given this testimony, "as well as the observations the company made during the time Mayes was employed at Whitlock," the court found, Whitlock was "appropriately concerned" about its employees' welfare. Id. Next, the court rejected Mayes' argument that Webb would not have been bitten had she accommodated Mayes by following the instructions on the bookmark. JA215. The bookmark warned only not to "grab hold" of an individual having a seizure, not to stay away altogether. Id. In any event, the court continued, prohibiting employees from going near Mayes during a seizure was "a burdensome and unreasonable request." Id. (citing Jarvis v. Potter, 500 F.3d 1113 (10th Cir. 2007)). The court explained that in Jarvis this Court held that an employer was not required to accommodate an employee with post-traumatic stress disorder (PTSD) by directing his co-workers to avoid startling him, which prompted him to attack them, because there would still be a risk that co-workers would inadvertently startle him. Id. "Such is the case here," the court said, as Mayes' seizures were "frequent, unpredictable, and violent." Id. During her seizures, Mayes grabbed the arm of one co-worker, kicked at another co-worker, and bit Webb. JA215-16. Stating that the "law does not require Whitlock to wait for a serious injury before eliminating such a threat," the court granted summary judgment. JA216. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO WHITLOCK BECAUSE A REASONABLE JURY COULD FIND THAT WHITLOCK FAILED TO MEET ITS BURDEN OF SHOWING THAT MAYES POSED A DIRECT THREAT TO OTHERS OR HERSELF BECAUSE OF HER SEIZURES. The ADA allows employers to assert as a defense to a charge of discrimination that an employee was unqualified because she posed a "direct threat" to the health or safety of others or herself. 42 U.S.C. § 12113(a)-(b); 29 C.F.R. § 1630.2(r). This Court has recognized that, with the exception of cases in which the essential duties necessarily implicate the safety of others, "the existence of a direct threat is a defense to be proved by the employer." Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007).<3> Because of the "prejudice, stereotypes, [and] unfounded fear" surrounding many disabilities, School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987), the legal standard for establishing a direct threat defense is high. An employer must show that there is a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r). "Significant" means a "high probability[] of substantial harm; a speculative or remote risk is insufficient." 29 C.F.R. Part 1630, App. § 1630.2(r). Thus, the key inquiry for the direct threat analysis is not "whether a risk exists, but whether it is significant." Bragdon v. Abbott, 524 U.S. 624, 649 (1999) (emphasis added). In order to determine whether an employee poses such a risk, employers must make "an individualized assessment of the individual's present ability to safely perform the essential functions of the job" based on "reasonable medical judgment . . . or the best available objective evidence." Id. Four factors guide this determination: "(1) [t]he duration of the risk; (2) [t]he nature and severity of the potential harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he imminence of the harm." 29 C.F.R. § 1630.2(r). If an employer determines that an employee does pose a significant risk of substantial harm, the employer must determine whether a reasonable accommodation could eliminate or reduce the risk to an acceptable level. 29 C.F.R. § 1630.2(r); see 29 C.F.R. Part 1630, App. § 1630.2(r). Significantly, an employer's good-faith belief that an employee posed a direct threat is insufficient to establish the direct-threat defense. Jarvis, 500 F.3d at 1122. The question instead for a jury is "whether the employer's decision was objectively reasonable." Id. (emphasis added). The district court's grant of summary judgment in this case was based on an erroneous application of these standards. Contrary to the district court's conclusion, a reasonable jury could conclude that Whitlock did not have an objectively reasonable belief that Mayes posed a significant risk of substantial harm to others or herself. A jury could also conclude that, even if she did pose a significant risk of substantial harm, the risk could have been eliminated or reduced to an acceptable level with a reasonable accommodation, allowing Mayes to continue to work and support herself. See 42 U.S.C. § 12101(8) (goal of ADA is to facilitate the "economic self-sufficiency" of disabled individuals). Accordingly, this Court should reverse the entry of summary judgment. A. A reasonable jury could find that Whitlock did not have an objectively reasonable belief that Mayes posed a direct threat to others. To prevail on summary judgment, Whitlock had to show as a matter of law that Mayes posed a "significant risk of substantial harm" to her co-workers. 29 C.F.R. § 1630.2(r) (emphasis added). Whitlock failed to do so. It is undisputed that Whitlock's determination that Mayes posed such a risk was not based on any medical judgment or information. Rather, it was based solely on Whitlock's observations of Mayes during her employment. In granting summary judgment, the district court also considered Mayes' testimony that she was likely to become physically aggressive during a seizure if someone made physical contact with her or grabbed something out of her hands. Order at 7. But neither Whitlock's observations of Mayes, nor her testimony, compel the conclusion on summary judgment that Mayes posed a significant risk of substantial harm to her co-workers. To be sure, a jury could find that two of the direct-threat factors supported Whitlock's assertion that she did pose such harm. Those include the duration of the risk (Mayes' condition was chronic) and the imminence of the potential harm (the seizures could, and did, happen at any time). See, e.g., Jarvis, 500 F.3d at 1124 (duration and imminence factors satisfied where the plaintiff's PTSD was chronic and unpredictable and he could erupt at any moment if startled). But a jury is not compelled to find a direct threat simply because one or two factors are satisfied. See, e.g., Justice v. Crown Cork & Seal Co., Inc., 527 F.3d 1080, 1091- 92 (10th Cir. 2008) (jury question existed as to whether electrician with vertigo who admitted that "lives are at stake" posed a direct threat; stating that "the severity of the harm [was] great" but a jury could find that the harm was unlikely to occur). And here a jury could find that two of the factors do not support a direct-threat finding, precluding summary judgment. First, a jury could determine that the likelihood of the potential harm was low. Although Mayes had seizures regularly for twenty-five years before her termination, the record reflects only two incidents of anyone else getting hurt: when Mayes bit Webb and when she left fingernail indentation marks on Chambers' arm. Mayes' mother-in-law testified that she witnessed more of Mayes' seizures in the last five years than anyone except Mayes' husband but was never injured. Based on this evidence, a jury could find that although it was likely that Mayes would continue to have seizures, the "likelihood that the potential harm w[ould] occur," 29 C.F.R. § 1630.2(r), was very low. See Justice, 527 F.3d 1080 at 1092 (jury could find that electrician with vertigo posed "extremely small" likelihood of harm) (emphasis added); Whitney v. Bd. of Educ. of Grand County, 292 F.3d 1280, 1286 & 1282 (10th Cir. 2002) (fact question existed as to whether teacher with depression "posed any significant risk to the students" where she had been accused of once injuring a student). A reasonable jury could also determine that the nature and severity of the potential harm presented by Mayes' seizures-the possibility that she would kick, grab, hit, or bite someone while in the throes of a seizure-did not present a "significant" risk of "substantial harm." 29 C.F.R. § 1630.2(r) (emphasis added). The only record evidence of any injury Mayes caused during a seizure was when she grabbed Chambers' arm, leaving fingernail indentations, and when she bit Webb. JA116-18. Certainly, a jury could find that fingernail indentations constitute a minor injury. While the injuries resulting from Mayes' bite were more serious, a jury could still determine that they did not constitute "substantial" harm. Compare Whitney, 292 F.3d at 1286 (reversing summary judgment on direct threat where teacher was accused of injuring a student's foot on a piece of metal), with Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1090 (10th Cir. 1997) (individual with bipolar disorder posed a "grave" threat "likely to result in harm severe in magnitude" where he had threatened and engaged in violence, including breaking several ribs of a former classmate), McKenzie v. Benton, 388 F.3d 1342, 1355-56 & n.6 (10th Cir. 2004) (officer posed direct threat where she had fired six shots into her father's grave and had engaged in other violent behavior, including cutting herself, punching walls, and attempting suicide), and Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1294-95 (10th Cir. 2000) (plaintiff, a mine blaster, posed a direct threat where he had psychiatric disorders, harbored a grudge against his supervisor, and "threatened suicide and perhaps injury to others"). Indeed, the district court itself appeared to have viewed the injuries to Chambers and Webb as non-serious. See JA216 (stating that Whitlock need not "wait for a serious injury"). Thus, while two of the direct-threat factors might suggest that Mayes posed a threat to her co-workers, a jury weighing all of the factors could find that Whitlock failed to show that it had an objectively reasonable belief that there was a "high probability[] of substantial harm" to Mayes' co-workers. 29 C.F.R. Part 1630, App. § 1630.2(r) (emphasis added). In concluding otherwise, the district court compared this case to Jarvis and Den Hartog, but those cases are distinguishable, particularly as to the nature and severity of the potential harm. Jarvis involved a plaintiff with PTSD who attacked his co-workers when startled. This Court concluded that the plaintiff posed a direct threat after determining that the duration, imminence, and likelihood factors were satisfied and stating that although the severity of the potential harm was "perhaps less clear," the plaintiff himself had said "he could kill someone" if startled and that he "could not safely return to work." Jarvis, 500 F.3d at 1124. Similarly, in Den Hartog this Court held that all four direct-threat factors were satisfied where an individual with bipolar disorder had made repeated threats and had "demonstrated his propensity to carry them out, including breaking the ribs of one of his former schoolmates and engaging in other violent behavior"; this Court characterized the threat posed as "grave" and the potential harm as "severe." Den Hartog, 129 F.3d at 1090. In contrast to these cases, the record in this case presents a factual question as to the likelihood factor. Additionally, there is absolutely no allegation, as there was in Jarvis, that Mayes could kill anyone, and there is no allegation that Mayes could impose the kind of "grave" harm at issue in Den Hartog. The district court instead should have compared this case to Justice v. Crown Cork & Seal, and Whitney v. Board of Education, where this Court held on more similar facts that summary judgment was inappropriate. As discussed, in Justice this Court held that there was a triable issue as to whether the plaintiff-an electrician with vertigo-posed a direct threat where the "risk of harm may have been permanent and the severity of the harm great, [but] a reasonable jury could conclude that the likelihood . . . was extremely small." Justice, 527 F.3d at 1092. Similarly, in Whitney this Court held that there was a factual issue as to whether the plaintiff, a teacher with depression who had been accused of assaulting a student by pushing her foot into a piece of metal, "posed any significant risk to the students." Whitney, 292 F.3d at 1286. As in Justice and Whitney, the record in this case presents factual issues as to whether Mayes posed a significant risk of substantial harm to others that a jury should resolve. Even if this Court finds as a matter of law that Mayes posed a significant risk of substantial harm to her co-workers, summary judgment was still inappropriate because a reasonable jury could find that the threat could have been entirely eliminated, or reduced to an acceptable level, by reasonable accommodation. See 29 C.F.R. § 1630.2(r) ("direct threat" means a significant risk of substantial harm "that cannot be eliminated or reduced by reasonable accommodation"). A jury could find that Whitlock could have simply directed Mayes' co-workers to refrain from getting near her during a seizure and that this would have entirely eliminated the likelihood of any harm. The record here would support such a conclusion, as Bluie Mayes testified that she "just do[es]n't get up close" to Mayes during a seizure and therefore has never been injured. JA164. Even if a jury determined that this directive would not have eliminated the risk entirely, a jury could still find that it would have "reduce[d]" the risk "to an acceptable level." 29 C.F.R. Part 1630, App. § 1630.2(r). And contrary to the district court's conclusion, Jarvis does not compel the conclusion that instructing employees to avoid going near Mayes during a seizure would have been "a burdensome and unreasonable request." JA215. In Jarvis the plaintiff argued that he would not have posed a direct threat of attacking his co- workers had they been instructed not to startle him or approach him from behind. Id. at 1124. This Court rejected that argument, stating that "even if it is appropriate to place on coworkers the burden of protecting themselves from an employee, it is hard to imagine an active workplace in which there would be no chance of accidentally startling a worker" and that the employer "was not required to ignore the risk of inadvertent startling." Id. Thus, Jarvis does not hold that asking co-workers to protect themselves from an employee constitutes an unreasonable accommodation under any circumstance. This Court's holding instead rested on the conclusion that the proposed accommodation was unreasonable because even if the co-workers were asked to avoid startling the plaintiff, they would inevitably do so by accident. Here, however, Mayes was not asking that her co-workers refrain from engaging in inadvertent behavior but that they refrain from engaging in affirmative and voluntary behavior-approaching her during a seizure. This Court should also reject Whitlock's argument that asking co-workers to stay away from Mayes during a seizure was unreasonable because it "conflicts with any normal measure of human compassion or instinct," particularly since she had called out "help me" during one seizure. JA32. Bluie Mayes testified that she knows she is "not able to do anything . . . so [she] just do[es]n't get up close" during Mayes' seizures. JA164. A jury could find that if Mayes' mother-in-law has been able to override her normal human compassion to assist her daughter-in- law during a seizure, it is reasonable to ask that Mayes' co-workers do the same in order that Mayes be able to continue working. The district court also seemed to question whether Mayes had ever specifically requested as a reasonable accommodation that her co-workers stay away from her during a seizure, raising the specter of whether Mayes' claim should fail for this reason.<4> See JA215 (noting that the bookmark advised only that employees should not "'grab hold'" of a person having a seizure). It should not. Even assuming that the bookmark could not be construed as a request for Mayes' co-workers to stay away from her during a seizure, Whitlock was not entitled to summary judgment because a jury could find that Whitlock failed to engage in a good-faith interactive process with Mayes to determine an effective reasonable accommodation for her, such as directing co-workers not to get near her during a seizure. As this Court has noted, the "obligation to engage in an interactive process is inherent in the statutory obligation to offer a reasonable accommodation to an otherwise qualified disabled employee." Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999); see also 29 C.F.R. § 1630.2(r) (employer may need "to initiate an informal, interactive process" to determine "appropriate reasonable accommodation"). Once the employee notifies the employer of the disability and any limitations, "both parties have an obligation to proceed in a reasonable interactive manner to determine whether the employee would be qualified, with or without reasonable accommodations" and to ascertain whether any appropriate accommodations are available. Smith, 180 F.3d at 1172 (emphasis added). Thus, while the interactive process is not an independent substantive requirement, "a plaintiff can prevail if she can show that the result of the inadequate interactive process was the failure of the [employer] to fulfill its role in determining what specific actions must be taken . . . in order to provide the qualified individual a reasonable accommodation." Lowe v. School, 363 Fed. Appx. 548, 552 (10th Cir. 2010) (quotations marks and citation omitted). An employee's failure to request a specific accommodation after making an initial request for an accommodation therefore does not defeat an ADA claim, at least where the employer failed to fulfill its duty to explore possible accommodations. See EEOC v. Convergys Customer Mgmt. Group, Inc., 491 F.3d 790, 795 (8th Cir. 2007) (failure to make specific reasonable accommodation request did not defeat plaintiff's claim; noting that the plaintiff made initial request and even "assumed [defendant's] responsibility by offering several potential accommodations" but that the employer failed to explore possible accommodations); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, (10/17/02), pg. 12 (employee need not specify precise accommodation).<5> The record in this case raises factual questions as to whether Whitlock satisfied its obligation to engage in the interactive process to determine an appropriate accommodation for Mayes, especially after it became clear that the accommodation Mayes had requested-that her co-workers refrain from "grab[bing] hold" of her-was not effective. A jury could find that Mayes made an initial request for a reasonable accommodation when she informed Whitlock of her disability and handed out the bookmarks from the Epilepsy Foundation; indeed, Whitlock itself asserts that it reasonably accommodated Mayes by allowing her to pass out the bookmarks. JA32-33. This triggered Whitlock's duty to engage in the interactive process. A jury could further find that Whitlock failed to satisfy its duty to do so because it did not "engage in an informal process to clarify what" Mayes needed and to identify the appropriate reasonable accommodation, i.e., one that included directing Mayes' co-workers to stay away from her during seizures. EEOC Guidance at 11. Even if Whitlock could not have been expected to clarify the scope of the accommodation Mayes was requesting when she started work, a jury could certainly find that it should have been obvious to Whitlock after Mayes kicked at Bishop (the HR Manager) and left fingernail indentations on the arm of Carol Chambers (Mayes' supervisor) that the accommodation of not "grabbing hold" of Mayes during a seizure was ineffective. After these incidents, a jury could find, Whitlock should have explored alternative accommodations that would have allowed Mayes to continue working. See EEOC Enforcement Guidance at 49 ("If a reasonable accommodation turns out to be ineffective . . . the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship."). An obvious accommodation would have been to instruct employees not to get close to Mayes during a seizure, which almost certainly would have prevented Webb's biting injury. Finally, a jury could find that after Mayes' September 22, 2008, seizure- when it should have been crystal-clear to Whitlock that the accommodations it was already providing were ineffective-Whitlock should have considered whether there was an available alternative reasonable accommodation that would not constitute an undue hardship. But instead of exploring other possibilities with Mayes-including the obvious accommodation of having her co-workers stay clear of her-Whitlock precipitously fired her. Accordingly, Mayes' failure to request specifically that her co-workers stay clear of her during a seizure does not provide alternative grounds for granting summary judgment. B. A reasonable jury could find that Whitlock did not have an objectively reasonable belief that Mayes posed a direct threat to herself. The district court erred in granting summary judgment on the grounds that Whitlock had met its burden of establishing that Mayes posed a direct threat to herself. Significantly, there is no evidence in the record even to show that Whitlock fired Mayes because it believed she posed a direct threat to herself. To the contrary, Keith Bishop's deposition testimony and his memorandum memorializing Mayes' termination conclusively establish that this was not the reason Whitlock fired Mayes. See, e.g., JA182 (he was aware of Mayes' self- injury during seizures but was unconcerned); JA187 (stating that he had no issues with Mayes' previous seizures "because in my mind Elizibeth was hurting only herself").<6> The position statement Whitlock submitted to the EEOC also states that it fired Mayes because she had bitten Webb; it says nothing of Mayes posing a threat to herself. JA177-78 A jury would therefore be well within its bounds to conclude that the threat-to-self assertion was not the true reason for Mayes' termination but was instead a pretext for disability discrimination. See Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) (failure to provide straightforward explanation at time of adverse action "might suggest [the explanation] was a later fabrication"). Even assuming that Whitlock had actually fired Mayes because it believed she presented a threat to herself, summary judgment was still inappropriate. A jury could first find that Whitlock did not meet its burden of showing that it had an objectively reasonable belief that Mayes posed a "significant risk of substantial harm." 29 C.F.R. § 1630.2(r) (emphasis added). While the "duration" and "imminence" factors tend to show that she posed a risk, a jury could find that the other two factors did not. As to the "likelihood" factor, the record shows that Mayes had experienced seizures for twenty-five years, but the only evidence of self-injury at the time of her termination was her bruising, head laceration, and a nicked finger. Based on this evidence, a jury could find that Mayes rarely injured herself and that the "likelihood" of such harm was therefore low. Whitlock argued below that Mayes was more likely to experience seizures at work because she testified that stress and rejection can trigger her seizures and that the abuse she suffered as a child made her feel the normal day-to-day stresses and rejections of the workplace even more acutely. But Mayes testified that her work did not cause her stress, and she testified that she could not "state for a fact" whether the stress of being excluded from lunch caused her seizures. JA175. Thus, it is a contested question of fact whether working at Whitlock increased the risk of Mayes' seizures and, in turn her risk of self-injury. Because "[g]eneralized fears about risks from the employment environment, such as exacerbation of the disability caused by stress, cannot be used by an employer to disqualify an individual with a disability," the alleged stress Mayes experienced at work does not provide grounds for granting summary judgment. 29 C.F.R. part 1630, App. § 1. Second, a jury could conclude that the "nature and severity" factor does not support a direct-threat finding. The only "available objective evidence" Whitlock had about the nature and severity of the harm Mayes posed to herself at the time it fired her-since Whitlock never asked a doctor what sort of risk Mayes posed- was that she had experienced bruising, a nicked finger, and a head laceration while working. A jury would be entitled to find that these were minor injuries, especially because Keith Bishop testified that they did not concern him. JA187; see Lovejoy- Wilson v. NOCO Motor Fuel Inc., 263 F.3d 208, 220 (2d Cir. 2001) (refusing to affirm summary judgment on the grounds that epileptic convenience store employee posed a direct threat, even though she had struck her elbow on a cabinet during a seizure). While Whitlock argued below that Mayes' fall at Bacone College in January 2009 establishes that she posed a "severe" risk of harm to herself, the Supreme Court has ruled that the direct-threat inquiry focuses on evidence available at the time the direct-threat finding was made, not on evidence that becomes available later. As this Court recognized in Jarvis, the Supreme Court ruled in Bragdon that "the circuit court properly refused to consider evidence of safety that was not available to the dentist when he made his decision" that the patient's HIV made her a direct threat to his health and safety. Jarvis, 500 F.3d at 1122 (citing Bragdon, 524 U.S. at 650); see also Nunes v. Wal-Mart, 164 F.3d 1243, 1248 (9th Cir. 1999) (reversing district court's finding of direct threat and noting that evidence on which the district court relied-a doctor's deposition testimony-was "taken two years after the termination decision was made [and] obviously was not available to Wal-Mart at the time [plaintiff] was terminated"). This analysis is also consistent with the Commission's regulations, which state that the direct-threat determination should be based on "reasonable medical judgment . . . or the best available objective evidence." 29 C.F.R. § 1630.2(r) (emphasis added). It also is appropriate to focus the direct-threat inquiry on whether the plaintiff posed a direct threat at the time of the adverse action because symptoms can worsen or improve over time. See 29 C.F.R. § 1630.2(r) (determination must be based upon an "individualized assessment of the individual's present ability to safely perform the essential functions of the job" based on "reasonable medical judgment . . . or the best available objective evidence") (emphasis added). Here, in fact, Mayes testified that post-termination the frequency of her seizures increased and that her medication for reducing stress was also increased. A jury therefore could find that Mayes' injury at Bacone College may have been the result of her increased stress, which consequently increased the risk of her having a seizure or more serious seizures, and of injuring herself. Even assuming that post-termination events can properly be relied upon to show the objective reasonableness of an employer's direct-threat determination, the evidence here does not compel the conclusion that Whitlock's determination was reasonable. Based on our review of the record, it appears that Whitlock failed to offer any evidence as to whether Mayes' workplace contained stairs and would therefore have put her at risk of falling down stairs and experiencing injuries like those she suffered at Bacone College. Because Whitlock had the burden of showing that Mayes posed a direct threat, the absence of this evidence militates against a finding that Mayes posed a risk of severely injuring herself. Accordingly, Whitlock failed to show as a matter of law that it reasonably believed that Mayes posed a significant risk of substantial harm to herself, which precludes a grant of summary judgment. See, e.g., Justice, 527 F.3d at 1091-92 (jury issue existed as to whether individual posed a direct threat to others where the severity of the potential harm was great and the risk permanent, but a jury could find that the harm was unlikely to occur); Lovejoy-Wilson, 263 F.3d at 220 (declining to affirm summary judgment on direct-threat defense where employee with epilepsy had suffered a minor elbow injury during a seizure). Moreover, unlike other cases with workplaces that significantly increased the risk to individuals with epilepsy of experiencing a grave injury, in this case there is no evidence that anything in the workplace put Mayes at elevated risk of injuring herself or of experiencing a serious injury. Cf. LaChance v. Duffy's Draft House, 146 F.3d 832, 835 (11th Cir. 1998) (epileptic line cook posed a direct threat to self because he had to be near ovens, gas grills, and slicing machines); Moses v. American Nonwovens, Inc., 97 F.3d 446, 447-48 (11th Cir. 1996) (epileptic employee working with dangerous machinery, including a fast-moving conveyor belt and a machine that reached 350 degrees, posed a direct threat to self). Mayes was therefore no more likely to experience a serious injury at Whitlock than she was at home, the grocery store, or a movie theater. Because the ADA was enacted to facilitate the economic independence of disabled individuals, it is consonant with the policy underlying the ADA to allow a jury to determine whether an individual such as Mayes-who is at no more risk of self-injury in the workplace than she is out of it-posed a direct threat to herself that justified her termination. Even if this Court were to conclude as a matter of law that Mayes posed a significant risk of substantial harm to herself, summary judgment is still inappropriate based on this record. A reasonable jury could find that Whitlock failed to engage in the interactive process to determine whether there were any reasonable accommodations that would have eliminated or reduced to acceptable levels any risk Mayes posed to herself. See 29 C.F.R. § 1630.2(r); 29 C.F.R. Part 1630, App. § 1630.2(r). Such accommodations might have included ensuring that Mayes did not work near any stairs (if there were any) or supplying a carpet or rubber mat to cushion any falls. See Questions and Answers about Epilepsy in the Workplace and the ADA, available at www.eeoc.gov/facts/epilepsy.html. But Whitlock never explored any possible accommodations, even after Mayes experienced minor injuries during seizures at work. Accordingly, the court erred in granting summary judgment on the grounds that Mayes posed a direct threat to herself. CONCLUSION Because Whitlock failed to show as a matter of law that it met its burden of establishing that Mayes presented a direct threat to others and herself, this Court should reverse summary judgment and remand this case for trial. Respectfully submitted, P. DAVID LOPEZ General Counsel VINCENT BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________________ s/ Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street N.E., 5th Floor Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@eeoc.gov CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure 32(a)(7)(B). This brief contains 6,861 words, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ____________________ s/Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4724 CERTIFICATE OF DIGITAL AND PHYSICAL SERVICE I hereby certify that on September 21, 2010, this document was electronically served on counsel via the Court's ECF Notice of Docket Activity system at their electronic addresses of record. I further certify that all required privacy redactions have been made to this document, that this ECF submission is an exact copy of the brief filed in hard copy with the Court, and that this digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program, Trend Micro Office Scan, updated September 20, 2010, and, according to that program, is free of viruses. I further certify that on this same date, one original and seven additional hard copies of the foregoing brief were submitted to the Clerk of Court, United States Court of Appeals for the Tenth Circuit, Byron White U.S. Courthouse, 1823 Stout St., Denver, CO 80257. _____________________ s/Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4724 *********************************************************************** <> <1> The Commission takes no position on any other issue raised in this appeal. <2> Mayes also brought a state law claim of discrimination. <3> In the Commission's view, the existence of a direct threat is always a defense to be proved by the employer, even when the plaintiff's essential duties implicate the safety of others. See, e.g., Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78 (2002) (stating that the ADA "creates an affirmative defense for action under a qualification standard," which "may include 'a requirement that an individual shall not pose a direct threat'") (emphasis added). Because it is undisputed in this case that Mayes' essential duties do not implicate the safety of others, however, this case does not present the issue of whether this Court has improperly shifted to plaintiffs the burden of showing a lack of a direct threat when the essential duties implicate others' safety. <4> Whitlock did not expressly argue that Mayes' claim should fail because she had not requested that her co-workers leave her alone. Instead, Whitlock argued that there was no reasonable accommodation-including asking co-workers to stay away from her during seizures-that would eliminate or reduce the risk of substantial harm. JA32-33. <5> Available at www.eeoc.gov/policy/docs/accommodation.html. <6> Although the direct-threat standard is an objective one-whether Whitlock reasonably believed that Mayes posed a risk to herself-this evidence shows that Whitlock did not even have a subjective good-faith belief that Mayes posed a threat to herself when it fired her.