No. 10-17730 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ CARMEN MELONE, Plaintiff-Appellant, v. PAUL EVERT'S RV COUNTRY, INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the District of Nevada, Las Vegas Division, No. 2:08-868-GWF Hon. George Foley, Jr., United States Magistrate Judge ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF CARMEN MELONE ____________________________________________ P. DAVID LOPEZ ERIC A. HARRINGTON General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. Litigation History. . . . . . . . . . . . . . . . . . . . . . . . . . . 7 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The District Court Erred in Granting Judgment as a Matter of Law to Paul Evert's. .11 A. Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. Melone presented sufficient evidence to support a finding that he was substantially limited in the major life activity of walking. . . . . . . . . . . . 12 C. The district court's reasons for concluding that Melone was not disabled are flawed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS TABLE OF AUTHORITIES CASES Astralis Condominum Association v. Secretary, HUD, 620 F.3d 62 (1st Cir. 2010). . . . . . . . . . . . . . . . . . . . . 15, 16 Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002). . . . . . . . . . . .23 Becerril v. Pima County Assessor's Office, 587 F.3d 1162 (9th Cir. 2009). . . . . 12 Costa v. Desert Palace, Inc., 299 F.3d 383 (9th Cir. 2002), aff'd 539 U.S. 90 (2003). . . . . . . . 11, 12 DSPT International, Inc. v. Nuhum, 624 F.3d 1213 (9th Cir. 2010). . . . . . . . . 11 Desmond v. Mukasey, 530 F.3d 944 (D.C. Cir. 2008). . . . . . . . . . . . . . .19, 20 EEOC v. AutoZone, Inc., 630 F.3d 635 (7th Cir. 2010). . . . . . . . . . . . . . . 23 EEOC v. Chevron Phillips Chemical Co., LP, 570 F.3d 606 (5th Cir. 2009). . . . . . . . . . . . . . . . . 16, 17, 23, 24 EEOC v. Sears, Roebuck & Co., 233 F.3d 432 (7th Cir. 2000). . . . . . . . . 12, 18 Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003). . . . . . . . . . . . . . . . . 13 Gillen v. Fallon Ambulance Services, Inc., 283 F.3d 11 (1st Cir. 2002). . . . . . 17 Gribben v. United Parcel Service, Inc., 528 F.3d 1166 (9th Cir. 2008). . . . . . 17 Hason v. Medical Board, 279 F.3d 1167 (9th Cir. 2002). . . . . . . . . . . . 23 Hayes v. Ayers, 632 F.3d 500 (9th Cir. 2011). . . . . . . . . . . . . . . . . . 21 Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005). . . . . . . . . 17 Johnson v. Paradise Valley Unified School District, 251 F.3d 1222 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 11 Kasten v. Saint-Gobain Performance Plastics Corp, No. 09-824, slip op., 563 U.S. __ (March 22, 2011). . . . . . . . . . . . 19 McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004). . . . . . . . . 22, 23 Mustafa v. Clark County School District, 157 F.3d 1169 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . .21, 24 PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001). . . . . . . . . . . . . . . . . . 16 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). . . . . . . . . 11 Rohr v. Salt River Project Agricultural Improvement & Power District, 555 F.3d 850 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Scheerer v. Potter, 443 F.3d 916 (7th Cir. 2006). . . . . . . . . . . . . . . . . 23 Sutton v. United Airlines, 527 U.S. 471 (1999). . . . . . . . . . . . . . . . . . 13 Weixel v. Board of Education of City of N.Y., 287 F.3d 138 (2d Cir. 2002). . .19, 20 STATUTES Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (2006) passim Americans with Disabilities Amendments Act of 2008 ("ADAA"), Pub. L. No. 110-325, 122 Stat. 3553 (2008), (codified as amended at 42 U.S.C. § 12101 et seq. (Supp. II 2008)). ADAA, Pub. L. No. 110-325, § 4(a). . . . . . . . . . . . . . . . . . . . . 12 ADAA, Pub. L. No. 110-325, § 8. . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 12101(2)(B) (Supp. II 2008). . . . . . . . . . . . . . . . . . 12 RULES & REGULATIONS 29 C.F.R. § 1630.2(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 22 29 C.F.R. pt. 1630, app. § 1630.2(j). . . . . . . . . . . . . . . . . . . . . 20, 21 Regulations To Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended, 76 Fed. Reg. 16978 (Mar. 25, 2011) (to be codified at 29 C.F.R. § 1630.2(i)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 OTHER AUTHORITIES EEOC Compliance Manual, § 902 Definition of the Term "Disability" (1995). . . . . . . . . 19, 20, 21 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with administering, interpreting, and enforcing Title I of the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (42 U.S.C. 12101 et seq.). This case raises an important coverage issue under the ADA specifically and a more fundamental issue about the district court's role in assessing the sufficiency of the evidence in an ADA case. Given the importance of these issues to the effective enforcement of the ADA and the other employment discrimination statutes, the EEOC offers its views. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUE A person is substantially limited in the major life activity of walking, and hence disabled under the ADA, if his ability to walk is significantly restricted as compared to that of the average person in the general population. Carmen Melone presented evidence that the average person in the general population could walk with ease the motor home dealership's sales lot at which he worked and that he was significantly restricted in his ability to walk that same sales lot in that he walked with pain, used a golf cart to traverse the lot, was fatigued by walking, and often avoided walking the lot altogether. Based on that, is there sufficient evidence to support the jury's finding that Melone was disabled within the meaning of the ADA?<1> STATEMENT OF FACTS I. Background Starting in 2003, Carmen Melone worked as a commissioned salesperson for Paul Evert's RV Country, Inc., in Laughlin, Nevada. ER-II<2> 84 (R.70<3> at 55:9- :25). His job was to sell recreational vehicles (RVs) to potential buyers. Id. (R.70. at 55:24-:25). Making a sale required him to show potential buyers various motor homes, inside and out, and then take them back to the sales office to discuss the terms of the purchase. Id. at 85 (R.70 at 56:9-:16). On a daily basis, he would walk the five acre sales lot-in and out of RVs-looking for customers. Id. at 86 (R.70 at 57:5-:20). The sales lot was relatively large. If someone were walking from one end of the lot to the other, it could be walked in "probably five minutes." Id. at 165 (R.71 at 48:2-:3). Melone estimated that it was a "couple of football fields" long or "something like . . . 200 yards." Id. (R.71 at 48:5-:6). In September 2006, Melone was diagnosed with prostate cancer. ER-II 88 (R.70 at 59:5-:10). On December 12, 2006, he underwent a radical prostatectomy at UCLA Medical Center. ER-I 65; ER-II. 92 (R.70 at 63:9). The surgery required an incision which started at his belly button and ended at his pelvis and resulted in the removal of his prostate. ER-II 97 (R. 70 at 68:19-:22). Even though he had not fully healed from the surgery, Melone went back to work on January 15, 2007. ER-II 92, 93, 97 (R.70 at 63:7-:10, 64:23, 68:19-:25). After returning to work, "it didn't take long for [him] to find out that [he] had some limitations." Id. at 94 (R.70 at 65:10-:11). He was "physically and emotionally damaged." TE 25.<4> He was often fatigued, testifying, "I tired easily. I would say in the morning I did really well, and by the afternoon I was-I was really tired." ER-II 99 (R.70 at 70:1-:2). He testified that he "realized that [he] shouldn't be climbing steps in the motor homes as much as [he] had been doing," id. at 97 (R.70 at 68:19-:25), and that he "had problems . . . walking" "because of the pain," id.at 98 (R.70 at 69:2-:7). He experienced a whole host of "general urinary problems . . . which required a separate surgery later." Id. (R.70 at 69:5-:7). Melone used a golf cart to get around the five-acre sales lot. ER-II 164, 202 (R.71 at 47:10-:14, 85:10-:23). As Ron Henderson, Melone's sales partner,<5> testified, "[Melone] bought another salesman's golf cart and he would go around the lot on the golf cart instead of going around the lot on a bicycle which was the- we used to all ride bicycles or just walked." Id. at 202 (R.71 at 85:20-:23). Even when he used the golf cart, he was still required "to be constantly walking and looking and climbing into motor homes." Id. at 165 (R.71 at 48:9-:13). This continued to be strenuous because he "was in pain going up steps." Id. at 186 (R.71 at 69:24-70:1). Noticing his pain, Henderson helped Melone by "doing primarily as much of the leg work [as he could] and [greeting] the customers and show[ing] them in and out of the coaches . . . ." Id. at 203-04 (R.71 at 86:24-:25, 87:1). Henderson testified that he aided Melone because his friend "wasn't quite as physically able to go up and down coaches . . . ." Id. at 203, 204 (R.71 at 86:1- :5, 87:3-:5). And Melone testified that "because [he] didn't feel that well from walking around for long periods of time, [he] would spend [his] time [inside] on the computer," ER-II 124 (R.70 at 95:16-:17), rather than walking the lot. As he testified, "I couldn't walk." Id. at 186 (R.71 at 69:24). By way of contrast, a finance manager, David Whitlock, who also encountered mobility problems, R.71 at 191:3-:6, could nonetheless still walk the sales lot, id. at 191:23-:25, 192:1-:2. He walked with a limp and used a cane because his leg was fused, but, unlike Melone, did not experience significant limitations traversing the lot or walking at a normal speed. Id. at 191:15-92:2. Whitlock testified that he could walk from the office to the front of the sales lot, which he estimated to be 100 to 150 feet, in a minute or minute and a half. Id. at 190:6-191:2. Curt Curtis, the vice president of Paul Evert's, testified that "someone could walk from the office to the furthest corner [of the lot] in two or three minutes . . . or less." Id. at 203:16-:19. In light of his limitations, Melone spoke with his doctor in February 2007 and requested that his work schedule be reduced to five days a week. ER-II 102 (R.70 at 62:20-:21). His doctor told Melone to "take it easy" and "not to do anything too strenuous," id. at 179 (R.71 at 62:21-:23), and "certif[ied] [to Paul Evert's] that Mr. Melone [wa]s under [his] professional care for prostate cancer" and that Melone should "not exceed a 5 day work week," TE 16. Paul Evert's refused his requested accommodation. His supervisor, Tom Schmid, responded that "Melone was not special [and] that everybody had to work six days." ER-II at 102 (R.70 at 73:23-:24). Melone's condition worsened. His pain and fatigue, which caused his walking limitations, remained constant throughout this period, but his urinary problems worsened. ER-II 109 (R.70 at 80:9-:17). He began to urinate frequently, requiring him to use the restroom as often as four times an hour. Id. at 169 (R.71 at 52:2- :16). His urinary problems got so bad that he decided to take off work and return to UCLA Medical Center for an evaluation in March 2007. Id. at 109 (R.70 at 80:12-:22). His doctor scheduled surgery for later in April 2007, to correct the problem. Id. (R.70 at 80:22-:24). When he returned to work after his evaluation at UCLA, he informed Schmid of the scheduled April surgery. ER-II 111-12 (R.70 at 82:11-83:1-:7). The next day, on March 16, 2007, Schmid fired Melone. Id. at 113 (R.70 at 84:1-:3). Schmid said he did so because Melone's sales were down and that "everyone else was out busting their butts trying to get sales and [Melone] was not . . . . [He spent] too much time . . . inside doing other stuff." R.71 at 158:18-:21. Following his termination, Melone's struggle with cancer and the complications from the surgeries persisted. Melone underwent the second surgery on April 25, 2007, and spent two weeks recovering from the surgery. ER-I 67. In November 2007, Melone secured employment at another RV dealership and throughout November 2007 to March 2008, he worked various RV shows. Id. On February 26, 2008, a CAT scan and bone scan revealed that Melone's prostate cancer was terminal and had spread throughout his body. Id. at 68. Because it was no longer localized, it had to be treated systemically. Id. The doctor placed him on a 90-day course of Lupron hormone therapy, which made him "excessively fatigued and produced intense hot flashes." Id. Melone stated that he was "beginning to feel the effects of latent depression as a result of this disease and being fired from [his] job." Id. As of March 13, 2008, he was "too fatigued to work any more RV shows." Id. On May 5, 2008, another 90-day Lupron course commenced, causing him to be "extremely tired": as he noted, "every other day I am in bed all day." Id. II. Litigation History Melone filed a complaint alleging that Paul Evert's terminated him because of his disability and failed to accommodate him. R.1 at 1. After discovery, Paul Evert's filed a motion for summary judgment, arguing, among other things, that Melone was not substantially limited in a major life activity. R.28 at 9. The district court denied that motion, reasoning that, "[b]ased on the cancer, the prostatectomy and Plaintiff's resulting physical limitations," a reasonable jury could conclude that Melone had an impairment under the ADA, ER-I 8 (R.36 at 8), and that he "has sufficiently demonstrated that his cancer, fatigue and periodic pain substantially limit[ed] his ability to walk and stand in his daily life compared to an average person's ability," id. at 15 (R.36 at 15). After a trial, the jury rendered a verdict in Melone's favor on the termination claim and awarded him $40,000.01. R.64 at 2. Paul Evert's then moved for judgment as a matter of law, arguing that Melone did not have a disability under the ADA because he failed to prove that his impairment substantially limited one or more of his major life activities. R.74 at 2, R.74-1. The district court granted Paul Evert's motion for judgment as a matter of law. ER-I 49 (R.90 at 21). The district court concluded that Melone "failed to present sufficient evidence at trial that he was substantially limited in performing major life activities prior to the termination of his employment." Id. at 46 (R.90 at 18). According to the court, he "failed to provide sufficient detail about his limitation . . . to support a reasonable inference that he was substantially limited in the ability to walk and stand as compared to the average person in the general population," id. at 45 (R.90 at 17), and "failed to present evidence that his physical impairments were permanent or of long duration, and not simply temporary impairments that he experienced while recovering from his prostate surgery," id. at 46 (R.90 at 18). The court noted that although Melone provided evidence in his pre-trial declaration and deposition "that he was unable to walk or stand for extended periods of time greater than 30 minutes, and that he would then need to sit and rest until the fatigue receded and he regained his strength," he did not present that specific evidence at trial. ER-I 44 (R.90 at 16). Melone appealed. ER-I 51. SUMMARY OF ARGUMENT Melone presented sufficient evidence for a jury to conclude that his ability to walk was "significantly restricted" as compared to that of the "average person in the general population." A jury reasonably could infer that the average person could walk the five-acre sales lot and step into and out of motor homes but that Melone was significantly restricted in his ability to do so, given that he walked with pain, resorted to using a golf cart, was fatigued by walking, and often avoided walking altogether. Thus, a reasonable jury could conclude that he was substantially limited in the major life activity of walking. In concluding otherwise, the district court made several errors. First, it erred in concluding that Melone was not disabled in part because he was working during the relevant time period. Weighing his ability to work against him in considering whether he is disabled creates an impossible catch-22 that has been rejected by other courts. That is, under that view, if his disability prevented him from doing his job he would not be a qualified individual under the ADA, and if he were able to work despite his disability he would then not be considered disabled. Second, the trial court erred in requiring Melone to testify in "sufficient detail" about his limitations. But, he only had to present evidence from which a jury could infer that he was substantially limited in walking. Whether the evidence was sufficiently detailed goes to its weight and that determination is the exclusive province of the jury. And, whether that evidence came from his direct testimony, the testimony of others, or from circumstantial evidence makes no difference. Third, the district court erred in concluding that Melone was not disabled because, according to the court, "[h]e provided no testimony as to how his limitations affected his ability to perform other activities of daily living, such as caring for himself, or performing household chores, yard work, grocery shopping, or engaging in social or recreational activities that involve walking and standing." But, an ADA plaintiff need only show that he is limited in a major life activity; he need not show that he is substantially limited in a broader range of major life activities. Fourth, the district court erred in concluding that there was insufficient evidence to support a finding that Melone's impairment was permanent or long- term. The district court erred in requiring such evidence; this Court has held that such a showing is not required to raise a triable issue of fact. The court also erred because there is sufficient evidence showing that his impairment, cancer, is permanent, and indeed, will likely result in his death. The district court also erred in assessing only whether he had presented evidence that his "limitations" were permanent but not the long-term impact of the impairment. Moreover, the evidence shows that the limitations were indeed long-term: he endured limitations for at least eleven out of nineteen months. The evidence supports a finding that he has a permanent impairment, one that has had a long-term impact and will affect him for the rest of his life. ARGUMENT The District Court Erred in Granting Judgment as a Matter of Law to Paul Evert's. A. Standard of review. Judgment as a matter of law may be granted only when "the evidence permits only one reasonable conclusion and that conclusion is contrary to the jury's verdict." DSPT Int'l, Inc. v. Nuhum, 624 F.3d 1213, 1218 (9th Cir. 2010). On the other hand, the jury verdict should stand if there is "evidence adequate to support the jury's conclusion, even if it is also possible to draw a contrary conclusion from the same evidence." Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001). This Court reviews the grant of judgment as a matter of law de novo, and must view the facts and make all reasonable inferences in the light most favorable to the nonmoving party and "disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). "This high hurdle recognizes that credibility, inferences, and factfinding are the province of the jury, not th[e] court." Costa v. Desert Palace, Inc., 299 F.3d 383, 859 (9th Cir. 2002), aff'd 539 U.S. 90 (2003). "[I]t is not [this Court's] role to come to a decision as to whether [Melone] was disabled . . . . Rather, [it] only need decide whether a rational jury, viewing the evidence in the light most favorable to [him], could come to such a decision." See EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 438 (7th Cir. 2000). B. Melone presented sufficient evidence to support a finding that he was substantially limited in the major life activity of walking. Under the ADA, an individual is disabled if he has an impairment that substantially limits one or more of his major life activities, 42 U.S.C. § 12102(2) (2006), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553, 3555-57 (2008).<6> Here, there is no dispute that Melone's cancer is an impairment that limited him in the major life activity of walking. The question on appeal is whether Melone's evidence of limitations in walking permitted only the conclusion that he was not substantially limited. The Commission believes that the evidence was adequate to support the jury's conclusion that he was substantially limited in walking and that the district court erred in taking the verdict away from Melone. A person is substantially limited in a major life activity if he is "unable to perform a major life activity that the average person in the general population can perform" or "significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j); see also Sutton v. United Airlines, 527 U.S. 471, 480 (1999). An impairment need not cause an "utter inability" to perform the major life activity to constitute a substantial limitation on that activity. Fraser v. Goodale, 342 F.3d 1032, 1040 (9th Cir. 2003). Melone presented sufficient evidence for a jury to conclude that his ability to walk was "significantly restricted" as compared to that of the "average person in the general population." 29 C.F.R. § 1630.2(j). The evidence shows that the average person in the general population could walk the dealership's five-acre sales lot. Before his cancer and the resulting surgeries and complications, Melone could and did walk the sales lot. ER-II 85 (R.70 at 57:19-:20). His sales partner, Henderson, also walked the lot, describing his work environment as including "quite a bit of walking, quite a bit of standing on your feet." Id. at 203 (R.71 at 86:4-:5). The evidence also shows that Whitlock, who walked with a limp and used a cane, could nonetheless walk the sales lot. R.71 at 191:3-:25. And Curtis also testified that "someone could walk from the office to the furthest corner [of the lot] in two or three minutes . . . or less." Id. at 203:16-:19. But after the surgery, Melone "had problems . . . walking" "because of the pain." ER-II 98 (R.70 at 69:2-:7). Specifically, he testified that he had difficulty walking and climbing into motor homes and that trying to do so fatigued him. Id. at 98, 99 (R.70 at 69:2-:7; 70:1-:2). He was often fatigued, testifying, "I tired easily. I would say in the morning I did really well, and by the afternoon I was-I was really tired." Id. at 99 (R. 70 at 70:1-:2). Melone bought a golf cart so that he would not have to walk the sales lot. ER- II 164, 202 (R.71 at 47:10-:14, 85:10-:23). Use of the golf cart alleviated some of the walking demands, but he was still required "to be constantly walking and looking and climbing into motor homes," which caused pain. Id. at 165, 186-87 (R.71 at 48:9-:13, 69:24-70:1). Both Melone and Henderson testified that it was hard for Melone to climb the steps into or out of the motor homes because it was painful. Id. at 97, 203 (R.70 at 68:19-:25; R.71 at 86:24-:25, 87:1). The pain from walking was so bad that Henderson eventually helped Melone by doing most of the "leg work" for Melone, such as greeting customers and showing them RVs around the lot. Id. at 203 (R.71 at 86:24-:25, 87:1). Melone testified, "I couldn't walk." Id. at 186 (R.71 at 69:24). Indeed, Melone testified, and Schmid corroborated, that "because Melone didn't feel that well from walking around for long periods of time, [he] would spend [his] time on the computer," id. at 124 (R.70 at 95:16-:17); R.71 at 158:18-:21, rather than walking the sales lot. From this constellation of facts, a jury could reasonably infer that an average person could walk the five-acre sales lot and step into motor homes but that Melone, because of his impairment, was significantly restricted in his ability to do so given that he walked with pain, resorted to using a golf cart, was fatigued by walking, and often avoided walking altogether. Thus, a reasonable jury could conclude that he was substantially limited in the major life activity of walking. See Astralis Condo. Ass'n v. Sec'y, HUD, 620 F.3d 62, 67 (1st Cir. 2010) (concluding that "even the most cursory scrutiny" supported a finding that a plaintiff who "walked with great difficulty and pain, resorted to using a cane or even a shopping cart for support, and that locomotion around the common areas of the condominium exhausted her" was handicapped under the Fair Housing Amendments Act)<7>; see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 (2001) (recognizing that a professional golfer who could not walk an 18-hole golf course without experiencing pain, fatigue, and anxiety, and had to use a golf cart to get around the course was "an individual with a[n ADA] disability"). C. The district court's reasons for concluding that Melone was not disabled are flawed. First, the district court erred in considering the fact that Melone was working as proof that he was not substantially limited in a major life activity. ER-I 43 (R.90 at 15) ("Notwithstanding his symptoms and limitations, Mr. Melone testified that he was able to perform his job as a salesman by taking certain measures."). The district court's discussion of that fact betrays that it was weighing evidence. But even more important, the fact that Melone was working between January and March 2007 should not be considered by any factfinder in determining whether he was substantially limited in the major life activity of walking, particularly where he never alleged that he was substantially limited in working. As the Fifth Circuit has stated, Considering plaintiffs' abilities to perform their jobs as evidence weighing against finding that they are disabled under the ADA would create an impossible catch-22 for plaintiffs: if their disabilities prevented them from doing their jobs altogether they would not be qualified individuals for the job under the ADA, and if they were able to work through their disabilities they would then not be considered disabled. See EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 619 (5th Cir. 2009); see also Gillen v. Fallon Ambulance Servs., Inc., 283 F.3d 11, 24 (1st Cir. 2002) (declining to adopt rule that would impose "an unenviable 'catch-22:' in order to demonstrate that she is disabled, the plaintiff would also have to demonstrate why she is unqualified to do the job to which she aspires"). Second, the district court erred in concluding that the jury was compelled to rule against Melone because he did not testify about his limitations in "sufficient detail." ER-I at 44-45 (R.90 at 16-17). The court's standard is wrong in two respects-it necessarily reflects an improper weighing of the evidence and it appears to suggest that only the plaintiff's testimony is relevant. Melone's direct testimony alone, without additional detail, is sufficient to sustain the verdict, see Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1171 (9th Cir. 2008) (noting that plaintiff's testimony that he was substantially limited in walking, along with other testimony, was enough to support a finding that the plaintiff was disabled); Head v. Glacier Nw., Inc., 413 F.3d 1053, 1058 (9th Cir. 2005) ("[O]ur precedent supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact."), in that he testified unequivocally, "I couldn't walk." ER-II 186 (R.71 at 69:24).<8> But Henderson also testified about Melone's pain and limitations in walking and explained that he tried to take over some of the "leg work" from Melone for that very reason. The combination of Melone and Henderson's testimony provided a sufficient evidentiary basis for the jury's inference that he was significantly limited in his ability to walk the lot as compared to an average person in the general population.<9> Instead of applying the correct standard, the district court substituted its judgment-it was not satisfied with the level of detail provided specifically by Melone-for that of the jury-which was satisfied with the totality of Melone's evidence. Third, the district court erred in relying on the fact that Melone failed to present evidence that his limited ability to walk "affected his ability to perform other activities of daily living, such as caring for himself, or performing household chores, yard work, grocery shopping, or engaging in social or recreational activities that involve walking and standing," because, according to the court, such evidence "should have been considered" in assessing whether Melone was disabled. ER-I 44 (R.90 at 16). But, the only question before the jury was whether he was substantially limited in his ability to walk or stand, not whether he was substantially limited in the major life activity of caring for himself. Walking is a major life activity in and of itself. See Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 147 (2d Cir. 2002) ("[W]e do not think that . . . seeing, hearing, or walking are major life activities only to the extent that they are shown to matter to a particular ADA plaintiff. [T]hey are . . . major life activities per se." (internal quotations and citations omitted)). "The issue is whether an impairment substantially limits any of the major life activities of the person in question, not whether the impairment is substantially limiting in general." See EEOC Compliance Manual, § 902 Definition of the Term "Disability," at § 902.4(a) (1995) [hereinafter Compliance Manual], available at http://www.eeoc.gov/policy/docs/902 cm.html<10>; see also Desmond v. Mukasey, 530 F.3d 944, 958-59 (D.C. Cir. 2008) ("The only major life activity he claims [is limited] is sleeping, and neither the statute nor the regulations interpreting it include any indication that the major life activity of sleeping is substantially limited only if some other life activity is also limited."); Weixel, 287 F.3d at 147 ("It was sufficient to demonstrate that [the plaintiff] was substantially limited in a major life activity . . . . (emphasis in original)). Fourth, the district court erred in granting judgment as a matter of law because, according to the district court, Melone "failed to present evidence that his physical impairments were permanent or of long duration, and not simply temporary impairments that he experienced while recovering from his prostate surgery." ER- I 46 (R.90 at 18); see also R.71 at 180:19-:24 (Court: "I at least have some reservation in my mind as to whether the Plaintiff put forth sufficient testimony to show that Mr. Melone's disability, assuming that he had one, is of sufficient permanency or long duration to meet the definition of a disability under federal law."). But, proof that an impairment is permanent or of long duration is not an independent requirement; rather, it is a factor to use in assessing whether an impairment is substantially limiting. See Compliance Manual, at § 902.4(c) ("[T]he duration of an impairment . . . is just one factor to be considered with all of the other relevant information."). This secondary factor is designed only to carve out impairments that are fleeting in nature, such as a broken leg or the flu. See 29 C.F.R. pt. 1630, app. § 1630.2(j) ("[T]emporary, non-chronic impairments of short duration with little or no long term or permanent impact," such as "broken limbs, sprained joints, concussions, appendicitis, and influenza" "are usually not disabilities."). It is not intended to create an additional hurdle that a plaintiff must overcome to show that his impairment is substantially limiting. See Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1174 (9th Cir. 1998) (concluding that summary judgment could not be granted to the defendant when it was unclear whether the impairment was of a short duration with no permanent impact or a longer-term, more chronic condition,); Compliance Manual, at § 902.4(c) ("Although short-term, temporary restrictions generally are not substantially limiting, an impairment does not necessarily have to be permanent to rise to the level of a disability."). The touchstone of the analysis remains whether the plaintiff is substantially limited in a major life activity. Thus, the district court erred in concluding that "[t]he fact finder is also required to consider the duration or expected duration of the impairment, and its permanency or long-term impact." ER-I 45 (R.90 at 17) (emphasis added).<11> The district court erred yet another way when it considered this factor: it erroneously assessed only whether Melone had presented evidence that his "limitations" were permanent and ignored evidence that the underlying impairment is permanent. ER-I 45-46 (R.90 at 17-18) (reasoning that evidence concerning the long-term nature of the impairment was insufficient because "[w]hile the evidence shows that Plaintiff's prostate cancer further progressed after March 16, 2007, he failed to present evidence that he was substantially limited in his ability to walk or stand between that date and late 2007 or early 2008 when he began a regimen of hormone therapy treatment." (emphasis added)). The court ignored that Melone's cancer is a permanent impairment that will have the most significant long-term impact imaginable: it will likely result in his death. See 29 C.F.R. § 1630.2(j)(2) (factfinder is to consider not whether the impairment is always substantially limiting but only the "[t]he nature and severity of the impairment; [t]he duration or expected duration; and [t]he permanent or long term impact, or the expected permanent or long term impact of . . . the impairment"). Moreover, a rule that exonerates an employer for firing an employee in the early stages of a disability, because it has not persisted long enough to meet an arbitrary duration requirement would create perverse incentives at odds with the remedial purposes of the ADA. See McGary v. City of Portland, 386 F.3d 1259, 1268-69 (9th Cir. 2004) ("It is axiomatic that the ADA must be construed broadly in order to effectively implement the ADA's fundamental purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." (internal quotation marks and citations omitted)); Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002) (noting that the ADA should be construed broadly to implement its purpose); Hason v. Med. Bd., 279 F.3d 1167, 1172 (9th Cir. 2002) (same). Therefore, even if Melone had no evidence of his impairment and its limiting effects after March 2007, his evidence would have been sufficient because "[i]n an ADA case, the relevant time for assessing the existence of a disability is the time of the adverse employment action." See Chevron Phillips, 570 F.3d at 618; see also EEOC v. AutoZone, Inc., 630 F.3d 635, 642 (7th Cir. 2010) (analyzing the impact of the impairment for only the time period of the adverse employment action); cf. Scheerer v. Potter, 443 F.3d 916, 919 (7th Cir. 2006) (holding that the plaintiff "must be able to show that during the pertinent time period he was either prevented or severely restricted from such major daily tasks, such as walking, eating, sleeping, or sexual reproduction" (emphasis added)). As the district court recognized, "[i]t is reasonable to infer . . . that [Melone] experienced [pain from the incision, difficulty walking, standing and climbing steps or stairs, urinary problems which included a burning sensation and the need to urinate frequently, and fatigue that resulted in being tired by the afternoon] every day from the time he returned to work on January 15, 2007 until he was fired on March 16, 2007." ER- I 43 (R.90 at 15). If the jury heard nothing else, it would have been reasonable for it to conclude that the expected duration of Melone's limitations was sufficiently lengthy to constitute a disability. Nonetheless, the evidence supports a finding that the limitations themselves were long-term. Over the course of nineteen months, Melone's impairment was substantially limiting for at least eleven of those months and the record is silent as to whether he was substantially limited in the remaining eight months. He was substantially limited from at least December 12, 2006, until at least May 2, 2007, that is, nearly five months. His radical prostatectomy took place on December 12, 2006, and he returned to work in January 2007. Even the district court recognized that he experienced significant limitations from January 15, 2007, until he was fired on March 16, 2007. ER-I 43 (R.90 at 15). And, nothing in the record suggests that those limitations subsided before his second urinary surgery on April 25, 2007. In fact, the surgery required another two weeks of recovery. ER-I 67. And, even though the record is silent as to his limitations for eight months- from May 2007 to February 2008 -it does show that the cancer worsened during that period-as the district court recognized-and that it was again substantially limiting from February 2008 until August 2008. In February 2008, the cancer had spread throughout his body and was diagnosed as terminal. ER-I 68. Then, he underwent two consecutive 90-day courses of Lupron hormone therapy that left him "excessively fatigued," "produced intense hot flashes," and caused him to be bed-ridden "every other day." Id. Based on that, the jury could conclude that his impairment was substantially limiting for at least another six months in 2008. All told, the evidence supports a finding that Melone's impairment is permanent, has had a long-term impact, and will limit him for the rest of his life. CONCLUSION Melone presented evidence of a permanent impairment that significantly restricted his ability to walk as compared to the average person in the general population. The jury verdict therefore was supported by sufficient evidence, and the district court erred in concluding otherwise. The Commission asks this Court to reverse the district court and order it to reinstate the verdict. Respectfully submitted, P. DAVID LOPEZ General Counsel /s/ Eric A. Harrington ERIC A. HARRINGTON CAROLYN L. WHEELER Attorney Acting Associate General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov CERTIFICATE OF SERVICE I, Eric A. Harrington, hereby certify that I filed this brief with the Court by uploading, this 4th day of April, 2011, an electronic version of the brief via this Court's Case Management/Electronic Case Filing System (CM/ECF). I also certify that I have served the following counsel of record via this Court's CM/ECF: Counsel for Carmen Melone Michael Phillip Balaban Law Offices of Michael P. Balaban 10726 Del Rudini Street Las Vegas, NV 89141 Counsel for Paul Evert's RV Country, Inc. Gary G. Branton Branton Law Office, LLC 312 S. Jones Boulevard Las Vegas, NV 89107 Monrae L. English Wild Carter & Tipton 246 W. Shaw Avenue Fresno, CA 93704 /s/ Eric A. Harrington ERIC A. HARRINGTON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov ********************************************************************************** <> <1> The EEOC takes no position on other issues raised on appeal. <2> "ER-I" refers to Volume 1 of Melone's Excerpt of Record. "ER-II," volume 2. <3> "R" generally refers to the district court docket number. "R.70" specifically refers to the first day's trial transcript (July 19, 2010). "R.71," the second (July 20, 2010). <4> "TE" refers to "Trial Exhibit." <5> Melone and Henderson were what they described as "piggy-backed" or "married together," which meant that they "worked the customers together instead of individually." R.71 at 78 (7/20/10 Tr. 78:14-:19). <6> Congress made significant changes to the ADA which took effect on January 1, 2009, but this case was filed before the effective date of the ADAAA. See ADA Amendments Act of 2008 ("ADAAA"), Pub. L. No. 110-325, § 8, 122 Stat. 3553, 3559 (2008). Therefore, the pre-amended ADA governs the claims in this case. See Becerril v. Pima Cnty. Assessor's Office, 587 F.3d 1162, 1164 (9th Cir. 2009) ("[T]he ADAAA does not apply retroactively."). All citations to the United States Code are therefore to the pre-amended ADA, unless otherwise noted. Although the ADAAA does not apply retroactively, Congress, in passing it, adopted the EEOC's constructions of the ADA, therefore the pre-ADAAA views of the EEOC are entitled to deference. See Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 853 (9th Cir. 2009). And, although the Commission does not rely on the 2008 Amendments, if Melone had brought his case under the ADAAA, he would be considered disabled because, under the amended Act, "a major life activity also includes the operation of a major bodily function, including but not limited to, functions of . . . normal cell growth." ADAAA, § 4(a), 122 Stat. at 3555, codified at 42 U.S.C. § 12102(2)(B) (emphasis added). And, "cancer affects an individual's normal cell growth." Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 76 Fed. Reg. 16978, 17007 (Mar. 25, 2011) (to be codified at 29 C.F.R. § 1630.2(i)). <7> As the court noted, the FHAA defines "handicap" the same way the ADA defines "disability," and as such ADA cases are persuasive authority when construing the FHAA, and vice versa. Astralis, 620 F.3d at 66. <8> To be sure, more detailed testimony as to exactly how far and how long Melone could walk would have been helpful, but was not necessary. See Sears, 233 F.3d at 439 (noting that the "record [wa]s incomplete regarding the actual distances [the plaintiff] was able to walk" but nonetheless concluding that summary judgment could not be granted to the defendant). <9> The district court properly instructed the jury that "[t]he law makes no distinction between the weight to be given to either direct or circumstantial evidence," R.65 at 8, but then ignored that admonition when it granted judgment as a matter of law on the ground that Melone himself did not provide all the direct testimonial evidence necessary to sustain the verdict. <10> "[G]iven Congress' delegation of enforcement powers to federal administrative agencies, we also give a degree of weight to their view about the meaning of the enforcement language." See Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-824, slip op. at 12-13, 563 U.S. __ (March 22, 2011) (reasoning that the EEOC's Compliance Manual "adds force to our conclusion"). <11> The district court's discussion suggests that the jury failed to consider the factor altogether, when the jury merely disagreed with the judge's conclusion about it. Indeed, the judge instructed the jury that Melone must show that "the impairment of [his] ability [to walk] must [persist] either permanently or over a lengthy period of time." R.65 at 18. And, "[o]utside of exceptional circumstances . . . juries are presumed to follow the instructions." See, e.g., Hayes v. Ayers, 632 F.3d 500, 514 (9th Cir. 2011) (internal quotations omitted). <12> That silence, however, does not militate against a disability finding because he only had to show a substantial limitation for the time period concerning the adverse employment action, see Chevron Phillips, 570 F.3d at 618, and silence as to the long-term impact of the impairment precludes granting judgment as a matter of law, see Mustafa, 157 F.3d at 1174.