No. 06-50840 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MOTHERS WORK, INC., Defendant-Appellee. __________________________________________ CONSOLIDATED WITH No. 06-51149 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. MOTHERS WORK, INC., Defendant-Appellant. ________________________________________________ On Appeal from the United States District Court For the Western District of Texas, San Antonio Division ________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________ RONALD S. COOPER GAIL S. COLEMAN General Counsel Attorney U.S. EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, NW, Room 7034 CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4055 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission requests oral argument. In this appeal, the EEOC asks the Court to hold that interacting with others, thinking, and caring for oneself are major life activities under the Americans with Disabilities Act. Oral argument would help to address any questions the Court may have about such rulings. Additionally, oral argument would allow the Court to satisfy any concerns it may have regarding the record evidence. TABLE OF CONTENTS Statement Regarding Oral Argument. . . . . . . . . . . . . . . .i Table of Authorities . . . . . . . . . . . . . . . . . . . . . iv Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1 Statement of the Issues. . . . . . . . . . . . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2 A. Course of Proceedings. . . . . . . . . . . . . . . . . . .3 B. Statement of Facts . . . . . . . . . . . . . . . . . . . .3 1 Medical Leave and Termination. . . . . . . . . . . . .5 2.Symptoms of Sarfaty's Bipolar Disorder . . . . . . . 17 3.History of the Case . . . . . . . . . . . . . . . . 23 C. District Court Decision. . . . . . . . . . . . . . . . . 24 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . 26 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 The district court erred in granting summary judgment to Mothers Work because a reasonable jury could find that Sarfaty was disabled with bipolar disorder and that her disability was a motivating factor in her termination. . . . . . . . . . . . . . . . . . . . 28 A. Standard of Review. . . . . . . . . . . . . . . . . . . . 28 B. A jury could conclude that Sarfaty is disabled within the meaning of the Americans with Disabilities Act ("ADA"). . . . . . . . . . . . 28 1. A jury could find that Sarfaty is disabled because she is substantially limited in the major life activity of interacting with others. 32 2. A jury could find that Sarfaty is disabled because she is substantially limited in the major life activity of thinking.37 3. A jury could conclude that Sarfaty is disabled because she has been substantially limited in the major life activity of caring for herself, and because the episodic nature of her illness makes it likely that this substantial limitation will recur. . . . . . . . . . . . . . . 41 C. A jury could reasonably find that Sarfaty's disability was a motivating factor in Mothers Work's decision to terminate her.. . . . . . 43 1. A jury could reasonably find that Mothers Work terminated Sarfaty because of Gottlieb's reactions to symptoms that cannot be separated from Sarfaty's disability. . . . . . . . . . . . . . . . . . . 44 2. Mothers Work cannot escape liability for its decision to terminate Sarfaty by claiming ignorance of her condition . . . . . . . . 49 3. A jury could reasonably find that Mothers Work's stated reason for terminating Sarfaty – job abandonment – is pretextual. . . . . 53 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Certificate of Service Certificate of Compliance TABLE OF AUTHORITIES Page Cases Battle v. UPS, Inc., 438 F.3d 856 (8th Cir. 2006). . . . . . . 37 Buchanan v. City of San Antonio, 85 F.3d 196 (5th Cir. 1996) . 43 Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000). . . . . . . . . 30 Cutrera v. Bd. of Sup'rs of La. State Univ., 429 F.3d 108 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 52 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995)29, 51 EEOC v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997). . . . 45 EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001) . . . . . 37 EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005) 31, 52 Emerson v. N. States Power Co., 256 F.3d 506 (7th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . 32 Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378 (3d Cir. 2004) . 41 Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003) . . . . . . . 41 Head v. Glacier N.W., Inc., 413 F.3d 1053 (9th Cir. 2005). 32, 37 Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003). . . . 32 Jacques v. DiMarzio, Inc., 386 F.3d 192 (2d Cir. 2004)32, 33, 36, 41 Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . 52 Page Lanman v. Johnson County, Kan., 393 F.3d 1151 (10th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 32, 37 Mason v. United Air Lines, Inc., 274 F.3d 314 (5th Cir. 2001). 41 Mauder v. Metro. Transit Auth., 446 F.3d 574 (5th Cir. 2006) . 56 McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . 33, 36 Minter v. Great Am. Ins. Co., 423 F.3d 460 (5th Cir. 2005) . . 28 Nawrot v. CPC Int'l, 277 F.3d 896 (7th Cir. 2002). . . . . . . 37 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) 53 Rohan v. Networks Presentations LLC, 375 F.3d 266 (4th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . 32 Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797 (8th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . 30 Shannon v. Henderson, 275 F.3d 42, 2001 WL 1223633 (5th Cir. 2001) (per curiam) (unpublished) . . . . . . . . 31, 32 Soileau v. Guilford of Me., Inc., 105 F.3d 12 (1st Cir. 1997)32-33 Swanson v. Univ. of Cincinnati, 268 F.3d 307 (6th Cir. 2001) . 30 Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) 37 Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30 (1st Cir. 2001). . . . . . . . . . . . . . . . . . 37 Williams v. Toyota Motor Mfg., Ky., Inc., 534 U.S. 184 (2002). . . . . . . . . . . . . . 29, 30, 33, 40, 51 Page Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. . . .1 § 12102(2). . . . . . . . . . . . . . . . . . . . . . .28-29 § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . .1 Rules and Regulations Fed. R. Civ. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . .2 29 C.F.R. § 1630.2(i). . . . . . . . . . . . . . . . . . . . . 30 29 C.F.R. § 1630.2(j)(1) . . . . . . . . . . . . . . . . . 30, 33 29 C.F.R. § 1630.2(j)(2)(ii)-(iii) . . . . . . . . . . . . . . 30 Legislative History Americans with Disabilities Act of 1990, H.R. Rep. No. 101-485(III) . . . . . . . . . . . . . . . . .48-49 Miscellaneous Authorities EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities (Mar. 25, 1997) . . . 29, 31, 32, 36 Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 Geo. L.J. 399 (Jan. 2006) . . . 48 Page G. De Lisio, I. Maremmani, G. Perugi, G.B. Cassano, J. Delitito, H.S. Akiskal, Impairment of Work and Leisure in Depressed Outpatients: A Preliminary Communication, J. Affec. Disord. 79 (Mar.-Apr. 1986), available at http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd= Retrieve&db=PubMed&list_uids=2873159&dopt=Citation . . . . . . 35 Lana R. Castle, Bipolar Disorder Demystified: Mastering the Tightrope of Manic Depression (Marlowe & Co. 2003) . . . . .46-47 Peter Byrne, Stigma of Mental Illness and Ways of Diminishing It, 6 Advances in Psychiatric Treatment 65 (2000) available at http://apt.rcpsych.org/cgi/content./full/6/5/65 . 46 U.S. Dep't of Health & Human Servs., Mental Health: A Report of the Surgeon General – Executive Summary (1999) . . 46 No. 06-50840 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MOTHERS WORK, INC., Defendant-Appellee. __________________________________________ CONSOLIDATED WITH No. 06-51149 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. MOTHERS WORK, INC., Defendant-Appellant. ________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________ STATEMENT OF JURISDICTION The EEOC sued Mothers Work under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging that Mothers Work illegally terminated Monica Sarfaty from her position as a regional manager because of her disability, bipolar disorder. (Complaint, R.1, Vol. 1 at 1.) The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a). The district court granted summary judgment to Mothers Work on May 8, 2006. (Order, R.65, R.E. at 4, Vol. 9 at 1669.) On May 9, 2006, the clerk entered final judgment for Mothers Work which disposed of all parties' claims. (Clerk's Judgment, R.66, R.E. at 3, Vol. 9 at 1683.) The EEOC filed a timely notice of appeal on July 6, 2006, pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure. (Notice of Appeal, R.78, R.E. at 2, Vol. 10 at 2997.) This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Could a reasonable jury find that Monica Sarfaty is disabled within the meaning of the ADA? 2. Could a reasonable jury find that Sarfaty's disability was a motivating factor in her supervisor's decision to terminate her? 3. Could a reasonable jury find that Mothers Work's stated reason for terminating Sarfaty – job abandonment – is pretextual? STATEMENT OF THE CASE This is an appeal from a final judgment of the district court in favor of Mothers Work. A. Course of Proceedings The EEOC filed this ADA action against Mothers Work on September 28, 2004. (Complaint, R.1, Vol. 1 at 1.) On May 8, 2006, the district court granted summary judgment to Mothers Work. (Order, R.65, R.E. at 4, Vol. 9 at 1669.) B. Statement of Facts Monica Sarfaty was a regional sales manager for Mothers Work, a retail company specializing in maternity clothes. (Sarfaty Dep. at 20, R.46 at Ex. B, Vol. 3 at 523; Gottlieb Decl. ¶¶ 2-3, R.46 at Ex. A, Vol. 3 at 513.) She was a hard worker and a valued employee for over six years. (Sarfaty Dep. at 23-29, 48, R.46 at Ex. B, Vol. 3 at 523-25, 528; Williams Dep. of 2/9/06 at 29, R.59 at Ex. A, Vol. 5 at 881.) Sarfaty explained, "I take my job very seriously, and to a certain extent I really lived for my job and I wanted to make sure that everything turned out perfect and everything was right and the business was running." (Sarfaty Dep. at 22, R.46 at Ex. B, Vol. 3 at 523.) As a regional sales manager, Sarfaty supervised eight district managers and was responsible for the operations of 113 stores. (Id. at 20, Vol. 3 at 523.) She coached and developed the associates who worked for her. (Id.) She also took on increasingly demanding responsibilities outside the scope of her job description. (Id. at 26-27, 31, Vol. 3 at 525-26.) She testified, "I was taking more on and I was volunteering more because that's just the kind of person I am." (Id. at 32, Vol. 3 at 526.) Sarfaty trained other regional managers and supported those who were new to the business. (Id. at 20-21, Vol. 3 at 523.) Additionally, she worked with the Vice President of Real Estate to put together real estate meetings. (Id.) Although other regional managers were not especially involved in looking for good locations to open new stores, Sarfaty felt that this was part of her job and she stayed in close contact with the Vice President about this subject. (Id. at 28, Vol. 3 at 525.) Sarfaty's supervisors thought highly enough of her that in May 2003, she was asked to take over as Acting Director of Stores for the Motherhood division while her supervisor was out on vacation. (Id. at 24, Vol. 3 at 524.) Two months later, the Vice President of Operations asked her to interview for a promotion as Director of Stores for the Pea in the Pod division. (Id.) Sarfaty was "honored" that the Vice President had thought of her for this position and she went to Philadelphia for the interview. (Id. at 49-50, Vol. 3 at 529.) Ultimately, the position went to an external candidate with more experience. (Id. at 50, Vol. 3 at 529.) Sarfaty's job required an enormous amount of travel, generally from Tuesday through Friday every week. (Id. at 23-24, 55, Vol. 3 at 523-24, 531.) Sarfaty worked 50-55 hours per week on her regular duties, and she worked additional time during evenings and weekends to train other regional managers and to assist the Vice President of Real Estate. (Id. at 29, Vol. 3 at 525.) 1. Medical Leave and Termination In July 2003, at around the same time that she was interviewing for the position as Director of Stores for the Pea in the Pod division, Sarfaty first told her supervisor, Monica Gottlieb, that she was experiencing a great deal of stress. (Id. at 51, Vol. 3 at 530.) Gottlieb, in turn, told Sarfaty that she did not think Sarfaty was as good as Sarfaty thought she was. (Sarfaty Dep. at 44, R.59 at Ex. K, Vol. 5 at 1007.) The next month, Gottlieb began investigating Sarfaty for possible expense account fraud. (Gottlieb Decl. ¶ 4, R.46 at Ex. A, Vol. 3 at 513.) Although the loss prevention manager did not consider Sarfaty's actions to have violated expense account policy (Williams Dep. of 10/26/05 at 157, R.59 at Ex. X, Vol. 5 at 1123), and the Vice President of Stores eventually told Gottlieb that she could not discipline Sarfaty for the challenged expenses (Saylors Dep. at 46, R. 59 at Ex. BB, Vol. 5 at 1151), the investigation itself was stressful for Sarfaty. (Sarfaty Dep. at 61-66, R.46 at Ex. B, Vol. 3 at 533-34; Williams Dep. of 10/26/05 at 70, 153, R.46 at Ex. C, Vol. 3 at 564-65.) Gottlieb added to Sarfaty's stress when she rebuked Sarfaty for declining to take on yet more tasks. (Sarfaty Dep. at 46, R.63 at Ex. B, Vol. 7 at 1318.) At this point, Sarfaty had been on the road for 14 weeks straight. (Sarfaty Dep. at 55, R.46 at Ex. B, Vol. 3 at 531.) She explained to Gottlieb that she did not feel she could continue to coach all of the other regional managers all of the time because she had her own region to run. (Sarfaty Dep. at 46, R.63 at Ex. B, Vol. 7 at 1318.) Sarfaty again told Gottlieb that she was "very stressed out" and that she was "feeling worse." (Sarfaty Dep. at 55, R.46 at Ex. B, Vol. 3 at 531.) Gottlieb, however, made Sarfaty feel that she was not a "team player." (Sarfaty Dep. at 46, R.63 at Ex. B, Vol. 7 at 1318.) By September 2003, Sarfaty felt that her stress was out of control and she began to contemplate suicide. (Sarfaty Dep. at 57, 62, Vol. 3 at 532-33; Sarfaty Aff. ¶ 5, R.59 at Ex. B, R.E. at 5, Vol. 5 at 894.) Her thoughts were racing, she suffered anxiety, she had frequent migraines, and she had trouble sleeping. (Sarfaty Dep. at 6, Vol. 3 at 521; Sarfaty Aff. ¶ 5, R.59 at Ex. B, R.E. at 5, Vol. 5 at 894.) Her concentration was so impaired that she could not remember simple words and often had to stop speaking in the middle of a sentence. (Sarfaty Dep. at 10, R.63 at Ex. B, Vol. 7 at 1313.) She "catastrophized" and gave undue significance to small matters. (Sarfaty Dep. at 57, R.46 at Ex. B, Vol. 3 at 532; Sarfaty Aff. ¶ 5, R.59 at Ex. B, R.E. at 5, Vol. 5 at 894.) With no warning, she would find herself overcome with irritability. (Sarfaty Dep. at 159, R.59 at Ex. K, Vol. 5 at 1026.) She also had repeated panic attacks in which she became short of breath, her heart raced, her mouth became dry, and she believed that she was going to die. (Id. at 92, Vol. 5 at 1014; Sarfaty Dep. at 93-97, R.46 at Ex. B, Vol. 3 at 535-36.) On Friday, September 26, 2003, Sarfaty told the loss prevention manager that she was about to have a "nervous breakdown." "I just can't do this," she said. "Something's going to happen. I'm going to explode." (Sarfaty Dep. at 61-62, R.46 at Ex. B, Vol. 3 at 533.) Sarfaty suffered another panic attack on the morning of Monday, September 29, 2003. (Id. at 95, Vol. 3 at 535.) She called in sick to work and went to see her primary care physician, who immediately referred her to a psychologist for an evaluation. (Id. at 6, Vol. 3 at 521; Messinger Notes, R.59 at Ex. C, Vol. 5 at 907.) The psychologist tentatively diagnosed Sarfaty with "recurrent major depressive disorder" and generalized anxiety and sent her to Mission Vista Hospital. (Barnes Notes at Bates 3005, R.59 at Ex. D, Vol. 5 at 912.) The hospital admitted her on October 2, 2003, with a provisional diagnosis of "severe, recurrent major depressive disorder." (Mission Vista Hospital discharge summary at Bates 3450, R.59 at Ex. G, Vol. 5 at 970.) Sarfaty remained in the partial hospitalization program until October 21, 2003. (Id.) By then, her doctor had revised her diagnosis from severe, recurrent major depressive disorder to bipolar disorder. (Sarfaty Dep. at 98-99, R.46 at Ex. B, Vol. 3 at 536.) The hospital noted that "all life domains [were] affected." (Mission Vista Hospital discharge summary at Bates 3450, R.59 at Ex. G, Vol. 5 at 970.) Sarfaty transferred to the hospital's intensive outpatient program on October 21, 2003, and she remained there until November 12, 2003. (Id.) She was released with a strict medication regimen and with the understanding that her bipolar disorder would require life-long care. (Sarfaty Dep. at 103, R.46 at Ex. B, Vol. 3 at 537; Sarfaty Dep. at 71, R.59 at Ex. K, Vol. 5 at 1012.) She continues to take medication and to see a psychiatrist on a regular basis. (Sarfaty Dep. at 97, 118, R.46 at Ex. B, Vol. 3 at 536, 541.) In connection with her hospital admission, Sarfaty telephoned Donna Dougherty, the benefits manager for Mothers Work, and explained her circumstances. (Id. at 38-39, Vol. 3 at 527.) She told Dougherty that she needed a medical leave of absence. (Id. at 39, Vol. 3 at 527.) The hospital sent Dougherty documents describing Sarfaty's hospitalization for "severe, recurrent major depressive disorder" and noting Sarfaty's "extreme anxiety" and panic attacks. (Disability Claim Form at Bates 71, R.59 at Ex. F, Vol. 5 at 928.) Sarfaty's doctor noted on the forms that Sarfaty was undergoing "intense psychotherapy" and that she was currently unable to engage in work of any kind. The doctor estimated that Sarfaty would be able to return to work on November 17, 2003. (Physician's Certification at Bates 74, R.59 at Ex. F, Vol. 5 at 930.) On October 6, 2003, Dougherty wrote to Sarfaty and said, "Our concern is that you get well. Therefore, we are requesting that you focus on doing whatever is necessary to achieve that goal." (Swartz Dep. of 12/8/05 at 74, R.63 at Ex. M, Vol. 8 at 1437.) Four days after receiving the hospital records, she sent Sarfaty another letter stating that Mothers Work had granted her leave from September 30, 2003, through December 23, 2003, pursuant to the Family and Medical Leave Act ("FMLA"). (Dougherty Letters, R.59 at Exs. U & P, Vol. 5 at 1052-53.) Dougherty sent one copy of this letter to Gottlieb and another to Safiyah Spann, the only individual other than the general counsel in Mothers Work's general counsel's office. (Id.,, Vol. 5 at 1053; Swartz Dep. of 12/8/05 at 132, R.59 at Ex. T, Vol. 5 at 1091.) Because Sarfaty had taken leave before completing her annual performance reviews, Gottlieb traveled to Texas to complete the reviews for her. (Gottlieb Decl. ¶¶ 6-8, R.46 at Ex. A, Vol. 3 at 514.) While there, Gottlieb met with two of Sarfaty's subordinates, who relayed negative information about Sarfaty to Gottlieb. (Id. ¶ 9, Vol. 3 at 514.) Lisa Wise and Nicole Leddy both told Gottlieb that Sarfaty had interviewed for another job on company time, that she had used company funds to purchase items from Bath & Body for herself, that she was abusive to subordinates, and that she had told them that she did not like working for Mothers Work in general or for Gottlieb in particular. Wise and Leddy both told Gottlieb that Sarfaty had told them that she planned to obtain a doctor's note in order to take a leave of absence during the busy holiday season. (Id.; Wise Decl. ¶¶ 3-7, R.46 at Ex. D, Vol. 3 at 567-68.) In addition, Wise reported that Sarfaty's behavior was "bizarre" and had become "increasingly strange," that she was "clearly . . . not happy," that she was "extremely hot headed and you never knew exactly what kind of mood she would be in day to day," and that Sarfaty had told her that the job "had taken a toll on her mental health." (Wise E-Mail ¶¶ 1-3, 11, R.63 at Ex. Q Bates MW00416, Vol. 8 at 1499-1500.) Wise noted that in her last conversation with Sarfaty on October 1, 2003, Sarfaty "sound[ed] severely depressed." (Id. ¶ 13, Vol. 8 at 1500.) She concluded that Sarfaty "has serious deep rooted issues," that Sarfaty's behavior "was taking a toll on me," and that she personally "needed to avoid any further contact with her." (Id. ¶¶ 3, 13, Vol. 8 at 1499-1500.) Following these meetings, Gottlieb told Pamela Saylors, the Director of Stores for a separate division of Mothers Work, that she "was upset about Monica's request for medical leave." (Saylors Dep. at 40, R.46 at Ex. I, Vol. 3 at 592.) Saylors testified that Gottlieb "implied she did not believe it had merit." (Id.) Word of Sarfaty's condition got around the office. During the first week of her leave, the administrative assistant to the Vice President of Stores told the loss prevention manager, "Hey, did you hear about Monica? I hear she went off her rocker." (Williams Dep. of 2/9/06 at 18-19, R.63 at Ex. J, Vol. 7 at 1418.) The loss prevention manager described Sarfaty's condition as "general office gossip." (Id. at 19, Vol. 7 at 1418.) He testified that many people in many different departments commented to him about it. (Id. at 20-21, Vol. 7 at 1418.) According to Gottlieb, after she returned from Texas, she and general counsel Craig Swartz repeatedly attempted to telephone Sarfaty in connection with their ongoing investigation of her expense account. (Gottlieb Decl. ¶ 11, R.46 at Ex. A, Vol. 3 at 515.) Gottlieb and Swartz both testified that they viewed Sarfaty's failure to return their calls as significant. (Id. ¶ 12, Vol. 3 at 515; Swartz Dep. of 12/8/05 at 13-14, R.46 at Ex. H, Vol. 3 at 583.) Sarfaty denied having received any phone calls or messages from Gottlieb or Swartz. (Sarfaty Dep. at 146-47, R.46 at Ex. B, Vol. 3 at 547.) Despite having agreed to do so, Mothers Work now says that it cannot produce any telephone records to confirm that the calls took place. (Swartz Dep. of 12/9/05 at 117, R.59 at Ex. S, Vol. 5 at 1072.) Sarfaty's mother, with whom she lived, noted that although she sometimes forgets to give Sarfaty telephone messages, she tells callers that if the message is important they should not rely on her memory but should call right back and leave a message on the answering machine. (Enrique Sarfaty Dep. at 42, R.46 at Ex. K, Vol. 3 at 600.) Sarfaty testified, "If I knew that someone from Mothers Work was trying to contact me during that period of time, I would have called them back." (Sarfaty Dep. at 148, R.46 at Ex. B, Vol. 3 at 547.) Phillip Williams, loss prevention manager, testified that in his experience, Mothers Work would never terminate an employee simply for failure to respond to telephone messages. (Williams Dep. of 10/26/05 at 88, R.59 at Ex. X, Vol. 5 at 1118.) He explained, "Mothers Work would attempt to reach employees in order to speak with them concerning an investigation via telephone at first. If no response via telephone, they would send a couple of notices via a trackable mail system." (Id.) In litigation, Mothers Work produced a copy of a letter that Swartz claims to have sent to Sarfaty by overnight mail on October 17, 2003 (four days after Mothers Work had granted Sarfaty medical leave). (Swartz Letter, R.59 at Ex. V, Vol. 5 at 1095; Swartz Dep. of 12/8/05 at 13, R.46 at Ex. H, Vol. 3 at 583.) The letter contains no mailing address and does not identify the overnight carrier that purportedly sent it to Sarfaty. (Swartz Letter, R.59 at Ex. V, Vol. 5 at 1095.) Airborne Express, Mothers Work's carrier of choice, has no record of having sent it (Dougherty Dep. at 60, R.59 at Ex. L, Vol. 5 at 1033; Swartz Dep. of 12/9/05 at 153, R.59 at Ex. S, Vol. 5 at 1076), and Sarfaty denies ever having received it. (Sarfaty Dep. at 146-47, R.46 at Ex. B, Vol. 3 at 547.) After a "diligent search," Mothers Work has been unable to produce proof of mailing. (Swartz Dep. of 12/9/05 at 116-17, R.59 at Ex. S, Vol. 5 at 1071-72.) The letter said: "Having been unable to reach you after several attempts, we are forced to conclude that you have voluntarily abandoned your position. . . . Please let us know as soon as possible if you have any questions on the above." (Swartz Letter, R.59 at Ex. V, Vol. 5 at 1095.) Williams testified that shortly before Mothers Work terminated Sarfaty, he overheard Swartz talking to two management officials about her. (Williams Dep. of 2/9/06 at 10-11, R.63 at Ex. J, Vol. 7 at 1417.) According to Williams, Swartz testified that he would "feel … comfortable terminating her even just based upon the fact that she would be out of the business for the two busiest holidays of the year." (Id. at 13, Vol. 7 at 1417.) Mothers Work officially terminated Sarfaty on October 31, 2003 (Termination Form, R.59 at Ex. R, Vol. 5 at 1058), and it advertised for a new regional manager that day. (Yahoo Hot Jobs Announcement, R.59 at Ex. Z, Vol. 5 at 1132.) The termination decision was made by Gottlieb in consultation with Swartz and Neil Cohen (who, as Vice President of Human Resources, was Dougherty's direct supervisor). (Swartz Dep. of 12/8/05 at 130, R.46 at Ex. H, Vol. 3 at 587; Dougherty Dep. at 10, R.59 at Ex. L, Vol. 5 at 1030.) Both Gottlieb and Swartz testified that they knew nothing about Sarfaty's medical condition when they decided to terminate her. (Gottlieb Decl. ¶ 13, R.46 at Ex. A, Vol. 3 at 515; Swartz Dep. of 12/8/05 at 42-43, R.59 at Ex. T, Vol. 5 at 1085-86.) According to the termination form, Sarfaty left Mothers Work "voluntarily" and was terminated for "job abandonment." (Termination Form, R.59 at Ex. R, Vol. 5 at 1058.) Although company policy and the form itself stated that Mothers Work must attach all relevant warnings and/or documents, there were no attachments in Sarfaty's file. (Id.; Williams Dep. of 10/26/05 at 35-36, R.59 at Ex. X, Vol. 5 at 1115-16.) Cohen later testified, "If Monica had violated a policy which resulted in her termination, that likely would have been documented on the team member change form." (Cohen Dep. at 87, R.59 at Ex. W, Vol. 6 at 1100.) The termination form also stated that all terminations must be reviewed with the human resources department "in advance of termination." (Termination Form, R.59 at Ex. R, Vol. 5 at 1058.) Although Mothers Work has identified Cohen as participating in the decision to terminate Sarfaty (Swartz Dep. of 12/8/05 at 130, R.46 at Ex. H, Vol. 3 at 587), Cohen testified that "I only know that she left the company, not the reason that she ultimately left the company." (Cohen Dep. at 74, R.59 at Ex. W, Vol. 5 at 1098.) When confronted with the statement in Sarfaty's termination form that she had abandoned her job, Cohen expressed bewilderment. He testified, "I don't believe that Monica could have abandoned her job if she was on an approved leave of absence. . . . If somebody is on an approved leave of absence, it doesn't make logical sense that they . . . could have abandoned their job during that period of leave of absence." (Id. at 110-11, Vol. 5 at 1103-04.) Not knowing that she had already been terminated, in early November Sarfaty contacted Dougherty to tell her that her doctor was going to extend her leave by one month, to December 17, 2003. (Sarfaty Dep. at 145, R.46 at Ex. B, Vol. 3 at 547.) After the doctor faxed a notice of the extension to Dougherty, Sarfaty called her again to confirm that she had received it. (Id. at 146, Vol. 3 at 547.) Dougherty said nothing about Sarfaty's termination (id.), although she later admitted that "if somebody were to be terminated while on medical leave, I would be involved . . . regarding the insurance." (Dougherty Dep. at 117, R.63 at Ex. K, Vol. 7 at 1425.) Sarfaty first learned of her termination on November 12, 2003, when she received a COBRA notice about post-termination benefits. (Sarfaty Dep. at 146, R.46 at Ex. B, Vol. 3 at 547.) She called Dougherty to express her confusion. Dougherty told her, "Well, I don't know, I just work in HR. Didn't Craig Swartz send you a letter?" Sarfaty responded that she had never heard from anyone in Mothers Work other than Dougherty. (Id. at 146-47, Vol. 3 at 547.) The stress of her termination set Sarfaty back in her efforts to regain stability. (Id. at 150, Vol. 3 at 548.) According to Sarfaty, the termination "made it harder for me to return to a level where I could go back to work." (Sarfaty Aff. ¶ 15, R.59 at Ex. B, R.E. at 5, Vol. 5 at 896.) Absent the termination, she said, she probably would have been able to return to her job within the 12-week period of her FMLA leave. (Id. ¶ 16, Vol. 5 at 896-97.) She added that she had liked her job with Mothers Work and that, despite occasional doubts while she was still severely ill, she had intended to go back. (Sarfaty Dep. at 190-92, R.63 at Ex. B, Vol. 7 at 1333.) In light of her setback, however, Sarfaty's doctor was unable to release her for work until April 2004. (Id. at 97-98, Vol. 7 at 1321-22.) At that time, she began working for Victoria's Secret. (Id. at 134, Vol. 7 at 1329.) In December 2004, the U.S. Department of Labor ruled that Mothers Work had violated Sarfaty's rights under the FMLA by terminating her during her medical leave. (Letter from Dep't of Labor, R.59 at Ex. Q, Vol. 5 at 1055.) Evidence in the record suggests that Mothers Work may have committed similar violations with other employees. Michael Latko, the former head of Mothers Work's human resources department, testified that "it was the intention of Mothers Work to discover and comply with the bare minimum requirements of the FMLA." (Latko Aff. ¶ 14, R.63 at Ex. R, Vol. 8 at 1605.) Swartz testified that he believed Mothers Work had terminated district managers while they were out on pregnancy leave (Swartz Dep. of 12/8/05 at 127, R.63 at Ex. M, Vol. 8 at 1439), and Latko confirmed that this had occurred. (Latko Aff. ¶ 18, R.63 at Ex. R, Vol. 8 at 1606.) Pamela Saylors also testified that she knew of Mothers Work employees who had gone out on medical leave and were terminated while they were gone. (Saylors Dep. at 51, R.59 at Ex. BB, Vol. 5 at 1153.) 2. Symptoms of Sarfaty's Bipolar Disorder Sarfaty testified that her bipolar disorder did not have a sudden onset; rather, the symptoms crept up on her over time. (Sarfaty Dep. at 7, 121, R.46 at Ex. B, Vol. 3 at 521, 542.) She had struggled throughout her life with depression, quitting college because of it. (Enrique Sarfaty Dep. at 15, R.59 at Ex. E, Vol. 5 at 916; Mission Vista Hospital admission records at Bates 3115, R.59 at Ex. G, Vol. 5 at 942.) For this reason, the hospital diagnosed her with a "recurrent" mental illness. (Mission Vista Hospital discharge summary at Bates 3450, R.59 at G, Vol. 5 at 970.) Approximately one year before seeking a leave of absence, Sarfaty started taking an antidepressant. (Messinger Notes, R.59 at Ex. C, Vol. 5 at 907.) This medication did not resolve her symptoms. (Id.) To the contrary, it was while she was on the antidepressant that her symptoms escalated. By the time Sarfaty sought a leave of absence, she was acutely ill and was considering suicide. (Sarfaty Aff. ¶ 5, R.59 at Ex. B, R.E. at 5, Vol. 5 at 894.) She "could not interact with people at all." (Id.) She was consumed with anxiety and suffered frequent panic attacks and migraines. Her sleep was disturbed, with frequent nightmares and awakenings, and she was extremely fatigued. Her appetite was sporadic and she had shortness of breath. She had low energy, and she endured extreme depression with crying spells and suicidal ideation. She also suffered from nausea. (Disability Claim Form at Bates 71-72, R.59 at Ex. F, Vol. 5 at 928-29; Mission Vista Hospital Records at Bates 3103, 3105, 3115, R.59 at Ex. G, Vol. 5 at 939-40, 942.) She was often irritable and angry and frequently turned small problems into large ones. (Sarfaty Dep. at 57, R.46 at Ex. B, Vol. 3 at 532; Sarfaty Dep. at 159, R.59 at Ex. K, Vol. 5 at 1026; Mission Vista Hospital Records at Bates 3135, R.59 at Ex. G, Vol. 5 at 949.) Sarfaty's psychiatrist noted that she had poor concentration and appeared withdrawn. (Disability Claim Form at Bates 71, R.59 at Ex. F, Vol. 5 at 928.) She had low self-esteem and considered herself "stupid" and "a failure." (Mission Vista Hospital Records at Bates 3147, R.59 at Ex. G, Vol. 5 at 951.) She worried about how others perceived her, and she constantly heard internal criticism in her head. (Id. at 3162, Vol. 5 at 955.) Her thoughts were "negativistic and distorted." (Id.) Sarfaty's psychiatrist initially certified that at least until November 17, 2003, she was unable to perform work of any kind. (Physician's Certification at Bates 73, R.59 at Ex. F, Vol. 5 at 932.) Ultimately, the psychiatrist did not release Sarfaty to return to work until April 2004. (Sarfaty Dep. at 138, R.63 at Ex. B, Vol. 7 at 1330.) From September 29, 2003, through April 2004, Sarfaty had numerous panic attacks – sometimes three in one week and sometimes two in one day. (Id. at 94, Vol. 7 at 1321.) She was unable to care for herself in the most basic of ways: she could not get out of bed, bathe, brush her teeth, or get dressed without her mother's help. (Id. at 105, Vol. 7 at 1323.) Her lack of concentration prevented her from reading or analyzing numbers. She could not speak clearly, as she had to keep pausing to retrieve forgotten words. She was afraid to leave her house, as she worried about experiencing a panic attack in a public place. (Id. at 102, Vol. 7 at 1323.) By the time Sarfaty's psychiatrist released her to work, many of her symptoms had abated. (Id. at 109, Vol. 7 at 1324.) She is now successfully employed at Victoria's Secret in a position much like her former job at Mothers Work. (Id. at 112, Vol. 7 at 1325.) Nevertheless, Sarfaty remains limited in several critical ways. Sarfaty still experiences frequent panic attacks. At the time of her affidavit in February 2006, she was enduring one panic attack a week. (Sarfaty Aff. ¶ 37, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1307-08.) She described these attacks as "horrible" episodes in which she believed that she was going to die. (Sarfaty Dep. at 92, R.59 at Ex. K, Vol. 5 at 1014.) Although each episode was short in time, each one felt "like forever" to her. (Sarfaty Dep. at 93, R.46 at Ex. B, Vol. 3 at 535.) She is humiliated when the panic attacks occur in public and she wants to "get away from people" when this happens. (Sarfaty Dep. at 92, R.59 at Ex. K, Vol. 5 at 1014; Sarfaty Aff. ¶¶ 35-36, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1307.) Sarfaty also noted that "the whole thing about being bipolar [is] that you're up and down, up and down all the time." (Sarfaty Dep. at 104, R.63 at Ex. B, Vol. 7 at 1323.) Although she testified that she is now "able to take care of myself," she added that she still has weekends when she is incapable of getting out of her pajamas. (Id. at 106, Vol. 7 at 1324.) She does not experience these stay-in- pajamas weekends as a choice. Rather, she experiences them as a direct consequence of the fluctuations that her bipolar disorder causes in her energy level. (Id. at 106-07, Vol. 7 at 1324.) To this day, Sarfaty's life is severely circumscribed outside of work. She manages to travel and interact with others at work because "I have to. It's part of my job." (Id. at 110, Vol. 7 at 1325.) However, she is completely unable to interact with people socially. (Id. at 109-12, Vol. 7 at 1324-25.) "If my livelihood was at stake," she explained, "perhaps I could do that socially." (Id. at 111, Vol. 7 at 1325.) Her livelihood does not depend upon her social interactions, however, so she does not force herself to interact with people outside of work. As Sarfaty's moods shift with her bipolar disorder, she alternately suffers self-doubt and fears the scorn of others or deems herself superior and views others as "not worthy of interacting with me." (Sarfaty Aff. ¶ 39, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1308.) At age 43, Sarfaty lives with her mother and brother. (Id. ¶ 41, Vol. 7 at 1309.) She has never been married and has no children. (Mission Vista Hospital admission records at Bates 3115, R.59 at Ex. G, Vol. 5 at 942.) Apart from work, she almost always stays at home. (Sarfaty Dep. at 109, R.63 at Ex. B, Vol. 7 at 1324.) Even when she recently took two one-week vacations from her job at Victoria's Secret, Sarfaty spent the time at home. (Enrique Sarfaty Dep. at 37, R.59 at Ex. E, Vol. 5 at 921.) When Sarfaty travels for business meetings, she never socializes with her colleagues after hours. (Sarfaty Dep. at 117, R.63 at Ex. B, Vol. 7 at 1326.) She has no friends. (Sarfaty Aff. ¶ 38, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1308.) "When it is up to me," she said, "… I will not associate with people." (Id.) She avoids going to places where she will have to interact with others, and she does not invite visitors to her house. (Id. ¶¶ 39-40, Vol. 7 at 1308-09.) "I tend to be very compulsive," she explained. "Everything at home must be in place, clean, and perfect. I obsess that if people come over that they will dirty the place and move things out of order. I do not even like strangers sitting on the couch." (Id. ¶ 40, Vol. 7 at 1308.) When Sarfaty's mother or brother invite people over, Sarfaty becomes annoyed and avoids them. (Id., Vol. 7 at 1308-09.) Sarfaty continues to experience sudden irritability, which she cannot help but take out on those around her. (Id. ¶ 34, Vol. 7 at 1306-07.) She explained that "[t]here are times when I have to avoid speaking with employees when I am frustrated with a store's performance because I know that I will snap at them and get angry. The irritability comes over me at times, and I really cannot control it . . . . I know it is counterproductive but at times I cannot stop myself." (Sarfaty Aff. ¶ 34, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1306-07.) Sarfaty notes that romantic relationships are completely out of the question for her. "If I cannot even stay in a mall for extended periods of time and if I cannot have people over at home," she said, "obviously I cannot have a romantic relationship with anybody. This is an upsetting effect of my illness which I wish I could change." (Id. ¶ 41, Vol. 7 at 1309.) Sarfaty's problems with concentration have recently resurfaced. Even with a medication adjustment, she cannot focus on what she reads and cannot describe material that she has just read. (Sarfaty Dep. at 118-19, R.63 at Ex. B, Vol. 7 at 1327.) Nor can she focus on what she is hearing or what she is doing. (Id. at 119, Vol. 7 at 1327.) "It's not an episode," she explained. "It's all the time." (Id.) She also sometimes has problems finishing her sentences because she cannot find the right words. (Id. at 123-24, Vol. 7 at 1328.) "I try to concentrate on what I want to say," she testified, "but it doesn't happen. It doesn't come out, or I have difficulty for it to come across the way I want it to come across." (Id. at 123, Vol. 7 at 1328.) Even now, Sarfaty "catastrophizes" when she is depressed. (Sarfaty Aff. ¶ 26, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1304.) She experiences minor disagreements as major ones. (Enrique Sarfaty Dep. at 39, R.59 at Ex. E, Vol. 5 at 922.) She continues to experience obsessive thoughts and has frequent memory lapses. (Sarfaty Aff. ¶¶ 26-30, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1304-05.) Sarfaty's psychiatrist frequently needs to adjust her medications, both to address breakthrough symptoms and to relieve medication-induced side effects. (Id. ¶¶ 21-23, Vol. 7 at 1302-03.) The medication does not resolve all of her symptoms. (Id. ¶ 24, Vol. 7 at 1303.) Moreover, because bipolar disorder is a chronic and incurable illness, even the best medical care cannot prevent debilitating relapses. (Id. ¶ 25, Vol. 7 at 1303.) Sarfaty lives with the knowledge that her mental health is fragile. She constantly monitors her symptoms in order to reduce her chances of experiencing another severe depression. (Id.) 3. History of the Case The EEOC sued Mothers Work, alleging that Mothers Work had violated the ADA in terminating Sarfaty. (Complaint, R.1, Vol. 1 at 1.) Mothers Work moved for summary judgment on several grounds. (Motion, R.45, Vol. 2 at 480.) First, Mothers Work claimed that Sarfaty was not a "qualified individual with a disability" within the meaning of the ADA because she was not substantially limited in any major life activity. (Id. at 6, Vol. 2 at 490.) Next, Mothers Work claimed that it had terminated Sarfaty because it believed that she had abandoned her job. (Id. at 21-22, Vol. 2 at 505-06.) Finally, Mothers Work argued that the individuals who terminated Sarfaty were unaware of the nature of her illness. For this reason, it said, they could not have terminated her "because of" disability. (Id. at 22, Vol. 2 at 506.) The EEOC opposed the summary judgment motion. (Response, R.59, Vol. 5 at 827.) The EEOC argued that Sarfaty's bipolar disorder substantially limited her in the major life activities of interacting with others, thinking, caring for herself, concentrating, sleeping, eating, and working. (Id. at 2, Vol. 5 at 836.) The EEOC also argued that Mothers Work's stated reason for termination was a pretext for discrimination. (Id. at 22-28, Vol. 5 at 856-62.) C. District Court Decision The district court granted the motion for summary judgment. (Order, R.65, R.E. at 4, Vol. 9 at 1669.) Initially, it held that Sarfaty was not disabled within the meaning of the ADA. The court said that Sarfaty was not substantially limited in any major life activity and observed that her six-week hospitalization "only shows that she was incapacitated for a definite period of time." (Id. at 6, 8, Vol. 9 at 1674, 1676.) It added that "any impairment suffered by Sarfaty was corrected by the medication protocol established for her." (Id. at 6, Vol. 9 at 1674.) The court expressed "greater concern" with Sarfaty's allegation that she continues to suffer from at least one panic attack per week, but it refused to consider the panic attacks to be a substantial limitation on any major life activity. "Sarfaty," the court said, " . . . fails to explain her contradictory deposition testimony that she is successfully employed in a mid-level management position in the demanding retail industry." (Id. at 10, Vol. 9 at 1678.) The district court held in the alternative that even if Sarfaty qualifies as disabled, the EEOC had not presented any evidence that the decisionmakers were aware of Sarfaty's disability at the time they terminated her. The disability claim form which Sarfaty gave to Dougherty indicated that Sarfaty was suffering from "major depression, severe, recurrent," reported that she was undergoing outpatient hospital treatment, and predicted that she would be able to return to work on November 17, 2003. "Accordingly," the court said, "at the time it discharged Sarfaty, Mothers Work was aware that Sarfaty had been hospitalized, required continuing treatment, was suffering from major depression, but was expected to recuperate and return to work in December. The EEOC fails to present any evidence that at the time of her discharge, Mothers Work was aware that Sarfaty suffered from any bipolar condition." (Id. at 12-13, Vol. 9 at 1680-81.) SUMMARY OF ARGUMENT This Court should reverse the award of summary judgment. A reasonable jury could find both that Sarfaty was disabled with bipolar disorder and that her disability was a motivating factor in her termination. In refusing to view Sarfaty as disabled, the district court wrongly focused on her current ability to work while ignoring her substantial limitations in other major life activities. A jury could conclude that Sarfaty is substantially limited in the major life activity of interacting with others in any context other than work. A jury could also conclude that she is substantially limited in the major life activity of thinking, both because of her severely decreased ability to concentrate and because her thoughts do not reflect reality. Finally, the district court overlooked the fact that Sarfaty's recurring depressions have repeatedly caused her enormous difficulties in caring for herself. Given the episodic nature of her illness, a jury could reasonably expect these difficulties to reappear in the future. As viewed over her lifetime, Sarfaty's past and expected future periods of inability to care for herself represent a substantial limitation within the meaning of the ADA. The district court erred not only by failing to recognize that a jury could view Sarfaty as disabled, but also by holding that Mothers Work terminated her for reasons completely unrelated to her disability. According to the district court, Mothers Work could not have terminated Sarfaty because of her bipolar disorder because the decisionmakers were unaware of Sarfaty's condition. A jury, however, could conclude that the record evidence shows otherwise. Gottlieb, Sarfaty's supervisor, knew about Sarfaty's "bizarre" behavior and was aware that Sarfaty was taking medical leave in connection with her stress. If Gottlieb fired Sarfaty in part because of her discomfort with Sarfaty's bizarre behavior, or if she fired her in part because she disapproved of stress-related leave, either of those reasons would be disability related. Moreover, to the extent that Mothers Work avoided specific knowledge of Sarfaty's bipolar disorder because its decisionmakers did not follow up on warning signs and intentionally chose not to learn the facts already in Sarfaty's file, Mothers Work can still be held liable under the ADA. Finally, a reasonable jury could infer discrimination because it could disbelieve Mothers Work's stated reason for terminating Sarfaty. According to Mothers Work, it terminated Sarfaty because she failed to return Gottlieb's and Swartz's phone calls regarding her expense account, leading them to conclude that she had voluntarily abandoned her job. The record evidence, however, suggests otherwise. Not only is it unclear whether Gottlieb and Swartz did, in fact, attempt to contact Sarfaty, it is also contrary to company policy to terminate an employee for job abandonment while that employee is on company-approved medical leave. By insisting upon "job abandonment" as its explanation for terminating Sarfaty, Mothers Work throws its credibility into question. ARGUMENT The district court erred in granting summary judgment to Mothers Work because a reasonable jury could find that Sarfaty was disabled with bipolar disorder and that her disability was a motivating factor in her termination. A. Standard of Review This Court reviews a district court's award of summary judgment de novo. Minter v. Great Am. Ins. Co., 423 F.3d 460, 464-65 (5th Cir. 2005). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 464. In assessing a motion for summary judgment, the Court must view the record evidence, as well as all reasonable inferences therefrom, in the light most favorable to the non-moving party. Id. at 465. B. A jury could conclude that Sarfaty is disabled within the meaning of the ADA. The ADA provides three ways in which an individual may be deemed disabled: (1) the individual has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," (2) the individual has "a record of such an impairment," or (3) the individual is "regarded as having such an impairment." 42 U.S.C. § 12102(2). The parties do not dispute that Sarfaty's bipolar disorder constitutes a "mental impairment" within the meaning of the statute. See EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities at question 1 (Mar. 25, 1997) [hereinafter "EEOC Enforcement Guidance"] (bipolar disorder is a "mental impairment" under the ADA). At issue is whether her bipolar disorder substantially limits one or more of Sarfaty's major life activities. A "major life activity" is one "of central importance to daily life." Williams v. Toyota Motor Mfg., Ky., Inc., 534 U.S. 184, 197 (2002). EEOC regulations provide a non-exclusive list of "major life activities" under the ADA, including "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). For purposes of determining disability, a court should always look first to major life activities other than working. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 & n.10 (5th Cir. 1995); EEOC Enforcement Guidance at question 4 ("Working should be analyzed only if no other major life activity is substantially limited by an impairment."). Indeed, it is error for a court to focus exclusively on the effect of an impairment in the workplace. "[T]he definition is intended to cover individuals with disabling impairments regardless of whether the individuals have any connection to a workplace." Toyota Motor Mfg., 534 U.S. at 201. An impairment rises to the level of a disability only if it substantially limits a major life activity. An individual is "substantially limited" if she is "unable to perform a major life activity that the average person in the general population can perform" or if she is "significantly restricted as to the condition, manner, or duration under which [she] 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)(1). The impairment's impact must also be permanent or long-term. Toyota Motor Mfg, 534 U.S. at 198. The relevant time period for assessing the existence of a disability is the time of the adverse employment action. Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797, 802 (8th Cir. 2006); Swanson v. Univ. of Cincinnati, 268 F.3d 307, 316 (6th Cir. 2001); Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir. 2000). The Court must consider the "duration or expected duration of the impairment" and the "permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2)(ii)-(iii). Because the Court must consider "expected" duration and "expected" impact, an impairment may constitute a disability as soon as it arises. An impairment that substantially limits or is expected to substantially limit a major life activity for more than several months qualifies as a disability under the ADA. EEOC Enforcement Guidance at question 7; see Shannon v. Henderson, 275 F.3d 42, 2001 WL 1223633, at *7 (5th Cir. Sept. 25, 2001) (per curiam) (unpublished) (analyzing extent of limitations during six-month period). Evidence of present-day limitations, though not dispositive, may "provide a certain degree of credence to the claim that [the impairment] may have been ‘substantially limiting' at the time at issue." EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005). In addition, the existence of current limitations demonstrates that the condition "was not fleeting." Id. The record evidence in this case would allow a reasonable jury to conclude that Sarfaty's bipolar disorder substantially limits her, as compared to the average person in the general population, in the major life activities of interacting with others and thinking. The record evidence would also allow a reasonable jury to conclude that, over the course of her lifetime, Sarfaty's bipolar disorder has limited and will substantially limit her for at least several months in the major life activity of caring for herself. The recurrent nature of her mental illness makes it reasonable to infer that the major limitations she has experienced in the past will arise again in the future. 1.A jury could find that Sarfaty is disabled because she is substantially limited in the major life activity of interacting with others. The EEOC urges this Court to hold that interacting with others is a major life activity. See Shannon, 2001 WL 1223633 (assuming without deciding that "socialization" is a major life activity). Based on the record evidence, a jury could find that Sarfaty is substantially limited in interacting with others because, although she can interact at work, she cannot interact socially. The EEOC and virtually all courts of appeals to consider the issue have held or assumed that interacting with others is a major life activity within the meaning of the ADA. See EEOC Enforcement Guidance at question 3 (interacting with others is a major life activity); Head v. Glacier N.W., Inc., 413 F.3d 1053, 1059 (9th Cir. 2005) (holding the same); Lanman v. Johnson County, Kan., 393 F.3d 1151, 1157 (10th Cir. 2004) (assuming the same); Jacques v. DiMarzio, Inc., 386 F.3d 192, 202 (2d Cir. 2004) (holding the same); Rohan v. Networks Presentations LLC, 375 F.3d 266, 274 (4th Cir. 2004) (assuming the same); Heisler v. Metro. Council, 339 F.3d 622, 628-29 (8th Cir. 2003) (assuming the same); Emerson v. N. States Power Co., 256 F.3d 506, 511 (7th Cir. 2001) (treating interacting with others as an activity that feeds into the major life activities of learning and working). But cf. Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir. 1997) ("ability to get along with others" is not a major life activity). As the Second Circuit has observed, "it is difficult to contradict the Ninth Circuit's characterization of ‘interacting with others' as ‘an essential, regular function' that ‘easily falls within the definition of "major life activity."'" Jacques, 386 F.3d at 201 (quoting McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir. 1999)). In this case, the district court erred by emphasizing Sarfaty's ability to interact with others at work and virtually ignoring her inability to interact socially. (Order at 8-10, R.65, Vol. 9 at 1676-78.) As the Supreme Court has held, an impairment is substantially limiting if it "prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Toyota Motor Mfg., 534 U.S. at 198. Social interaction outside of work surely falls into this category. Moreover, the relevant question for ADA analysis is not whether Sarfaty is completely unable to perform a major life activity; it is whether she is substantially limited in performing that life activity as compared to the average person in the general population. 29 C.F.R. § 1630.2(j)(1). The record evidence shows that Sarfaty is, indeed, substantially limited in her ability to interact with others outside of work. At the time of her termination, Sarfaty testified, "I was not able to interact with people at all." (Sarfaty Aff. ¶ 5, R.59 at Ex. B, R.E. at 5, Vol. 5 at 894.) Now, at age 43, she still lives with her mother and brother. (Sarfaty Aff. ¶ 41, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1309.) Unless she is required to leave her house for business, she rarely does so. (Sarfaty Dep. at 109, R.63 at Ex. B, Vol. 7 at 1324.) There are weekends when she cannot even get out of her pajamas, much as she might want to. (Id. at 106, Vol. 7 at 1324.) Sarfaty has no friends and no romantic involvement. (Sarfaty Aff. ¶¶ 38, 41, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1308-09.) She avoids going to places such as shopping malls where she will be forced to interact with people, and she never invites visitors to her home. (Id. ¶¶ 39-40, Vol. 7 at 1308-09.) When her mother or brother invites people over, Sarfaty retreats so that she will not have to interact with them. (Id. ¶ 40, Vol. 7 at 1308-09.) She endures unpredictable and uncontrollable irritability, which she takes out on other people even though she recognizes that this is counterproductive. (Id. ¶ 34, Vol. 7 at 1306-07.) She also suffers weekly panic attacks. (Id. ¶ 37, Vol. 7 at 1307.) She avoids people when she can in part because of the extreme embarrassment that she experiences when these attacks occur in public. (Id. ¶¶ 35-36, Vol. 7 at 1307; Sarfaty Dep. at 92, R.59 at Ex. K, Vol. 5 at 1014.) To the extent that the district court downplayed Sarfaty's difficulties in interacting with others outside of work because of her admitted current ability to interact with others professionally, the court misunderstood the involuntary nature of Sarfaty's social limitations. Psychiatrists have long understood that the effects of mood disorders may manifest themselves differently in different settings. As one study explains, "functions which depend on traditional roles in family or at work tend to oscillate with the level of depression, whereas functions that require personal initiative (e.g. leisure) may remain abnormal well into the interepisodic phase." G. De Lisio, I. Maremmani, G. Perugi, G.B. Cassano, J. Delitito, H.S. Akiskal, Impairment of Work and Leisure in Depressed Outpatients: A Preliminary Communication, J. Affect. Disord. 79-84 (Mar.-Apr. 1986).<1> Sarfaty has testified to the enormous effort that it takes for her to socialize at work. "I interact with people in my job because I have to," she said. (Sarfaty Dep. at 110, R.63 at Ex. B, Vol. 7 at 1325.) But, she explained, this is not an effort that she can reproduce in her personal time. "It's just when I'm not working," she said, "that I have problems interacting with others. . . . If my livelihood was at stake, perhaps I could do that socially." (Id. at 111, Vol. 7 at 1325.) Sarfaty's virtual inability to leave her home for reasons other than work demonstrates that she is substantially limited in the major life activity of interacting with others. Her limitations go well beyond the ordinary social anxiety which courts have held to be insufficient to establish ADA coverage. See Jacques, 386 F.3d at 203 (plaintiff is substantially limited "when the impairment severely limits the plaintiff's ability to connect with others, i.e., to initiate contact with other people and respond to them, or to go among other people – at the most basic level of these activities"); McAlindin, 192 F.3d at 1235 ("plaintiff must show that his ‘relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary'") (quoting EEOC Enforcement Guidance at 5). Sarfaty satisfies the standard articulated in Jacques, 386 F.3d at 203, because she is severely limited in her ability to go out among others for any reason unconnected to her work. She also satisfies the standard articulated in McAlindin, 192 F.3d at 1235, because she demonstrates consistently high levels of social withdrawal. The fact that she can overcome her difficulties while at work does not negate the serious limitations that she experiences at all other times. See EEOC Enforcement Guidance at question 7 (employee with major depression is substantially limited in major life activity of interacting with others where he is "socially withdrawn (except for going to work)"). A jury, therefore, could reasonably conclude that Sarfaty is substantially limited in her ability to interact with others as compared to the average person in the general population. 2. A jury could find that Sarfaty is disabled because she is substantially limited in the major life activity of thinking. The EEOC urges this Court to hold that thinking is a major life activity. All of the courts of appeals to consider this question have agreed or assumed that it is. See Battle v. UPS, Inc., 438 F.3d 856, 861 (8th Cir. 2006) ("thinking and concentrating qualify as ‘major life activities' under the ADA"); Head, 413 F.3d at 1061 (9th Cir.) ("thinking is a major life activity"); Lanman, 393 F.3d at 1157 (10th Cir.) (assuming that thinking is a major life activity); Nawrot v. CPC Int'l, 277 F.3d 896, 903 (7th Cir. 2002) (thinking is a major life activity); EEOC v. Sara Lee Corp., 237 F.3d 349, 353 (4th Cir. 2001) (assuming sub silentio that thinking is a major life activity); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999) (thinking is a major life activity); cf. Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30, 33 n.4 (1st Cir. 2001) (assuming that thinking is a major life activity but holding that it may reasonably be subsumed within the major life activities of working and learning). As the Third Circuit has noted, "[w]e hardly need to point out that thinking is inescapably central to anyone's life." Taylor, 184 F.3d at 307. At the time of her termination, Sarfaty was substantially limited in her ability to think. She was consumed with anxiety and suffered frequent panic attacks. (Disability Claim Form at Bates 71-72, R.59 at Ex. F, Vol. 5 at 928-29.) She turned small problems into large ones. (Sarfaty Dep. at 57, R.46 at Ex. B, Vol. 3 at 532.) Her concentration was poor, and she considered herself "stupid" and "a failure." (Disability Claim Form at Bates 71, R59 at Ex. F, Vol. 5 at 928; Mission Vista Hospital Records at Bates 3147, R.59 at Ex. G, Vol. 5 at 951.) She could not focus on reading or analyzing numbers. (Sarfaty Dep. at 138, R.63 at Ex. B, Vol. 7 at 1330.) Nor could she speak clearly, as she had to keep pausing to retrieve forgotten words. (Id. at 102, Vol. 7 at 1323.) She worried about how others perceived her, and she constantly heard internal criticism in her head. (Mission Vista Hospital Records at Bates 3162, R.59 at Ex. G, Vol. 5 at 955.) Her thoughts were "negativistic and distorted." (Id.) Although she is far healthier now than she was then, Sarfaty remains substantially limited in thinking both because of her severely decreased ability to concentrate and because her thoughts distort her view of reality. Sarfaty continues to suffer panic attacks once a week in which she is convinced that she is going to die. (Sarfaty Aff. ¶ 37, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1307; Sarfaty Dep. at 92, R.59 at Ex. K, Vol. 5 at 1014.) During these attacks, she cannot access rational thoughts to persuade herself that she is not truly in danger. Sarfaty also cannot think clearly about her interactions with other people. Due to the ups and downs of her bipolar disorder, she sometimes suffers low self-esteem and perceives that people are scrutinizing and criticizing her, while at other times she feels "as though people are not worthy of interacting with me." (Sarfaty Aff. ¶¶ 33, 39, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1306, 1308.) It was this latter symptom, no doubt, that Gottlieb was referring to when she told Sarfaty that she did not think Sarfaty was as good as Sarfaty thought she was. (Sarfaty Dep. at 44, R.59 at Ex. K, Vol. 5 at 1007.) Sarfaty continues to obsess about various matters and to turn small problems into large ones. (Sarfaty Aff. ¶¶ 26-30, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1304-05.) According to her mother, she still views minor disagreements as major arguments. (Enrique Sarfaty Dep. at 39, R.59 at Ex. E, Vol. 5 at 922.) In Sarfaty's words, she "catastrophizes." (Sarfaty Aff. ¶ 26, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1304.) Because her bipolar disorder causes Sarfaty to cycle up and down even while on medication, Sarfaty's thoughts cause her to perceive her circumstances and herself in an unpredictable and fluctuating manner. Her subjective thoughts about herself and others often make her irritable despite the lack of any objective reason to be so. (Id. ¶ 34, Vol. 7 at 1306-07.) She cannot think clearly in order to calm herself down. (Id.) Sarfaty also suffers from recurring problems with concentration. (Sarfaty Dep. at 118-19, 123-24, R.63 at Ex. B, Vol. 7 at 1327-28.) She has frequent memory lapses. (Sarfaty Aff. ¶¶ 29-30, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1304- 05.) At the time of her deposition, she noted that even with a recent medication adjustment, she was unable to focus on what she was reading and could not describe material that she had just read. (Sarfaty Dep. at 118-19, R.63 at Ex. B, Vol. 7 at 1327.) She was also unable to focus on what she was hearing or what she was doing. (Id. at 119, Vol. 7 at 1327.) "It's not an episode," she explained, "[i]t's all the time." (Id.) She sometimes struggles to find the right words and is unable to complete her sentences. (Id. at 123-24, Vol. 7 at 1328.) A reasonable jury could find that these ongoing symptoms are a significant limitation for Sarfaty. The average person in the general population does not struggle the way Sarfaty does to focus on her activities or to express a thought. Nor does the average person struggle to think about herself and her circumstances in a way that bears a reasonable relationship to reality. Certainly, the average person does not struggle once a week with the sudden, absolute conviction that she is about to die. The district court missed the point by noting that Sarfaty can think well enough to succeed at her job. (Order at 10, R.65, Vol. 9 at 1678.) Her ability to succeed professionally does not mean that she does not struggle with substantial limitations. It means only that she has been able to overcome tremendous obstacles in her professional, if not her personal, life. See Toyota Motor Mfg., 534 U.S. at 201 (court should look at effect of impairment outside the workplace). The record evidence raises a material question about whether Sarfaty is substantially limited in her ability to think, and this Court should send that question to a jury. 3. A jury could conclude that Sarfaty is disabled because she has been substantially limited in the major life activity of caring for herself, and because the episodic nature of her illness makes it likely that this substantial limitation will recur. A reasonable jury could find that Sarfaty is disabled within the meaning of the ADA because the episodic nature of her illness makes it likely that she will experience periods of time in the future, as she has in the past, in which she is substantially limited in caring for herself. See Mason v. United Air Lines, Inc., 274 F.3d 314, 317 (5th Cir. 2001) (stating in dictum that caring for oneself is a major life activity); see also Jacques, 386 F.3d at 204 (caring for oneself is a major life activity); Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 385 (3d Cir. 2004) (same); Fraser v. Goodale, 342 F.3d 1032, 1043 (9th Cir. 2003) (same). Even before arriving at Mothers Work, Sarfaty's depression was so disabling that it forced her to quit college. (Mission Vista Hospital admission records at Bates 3115, R.59 at Ex. G, Vol. 5 at 942.) Later, at the time of her termination, its effects were even more extreme. In September 2003, Sarfaty was so ill that she could not get out of bed, bathe, brush her teeth, or get dressed without her mother's help. (Sarfaty Dep. at 105, R.63 at Ex. B, Vol. 7 at 1323.) Compare Jacques, 386 F.3d at 204-05 (plaintiff not substantially limited in caring for self where she could care for her home, have a normal social life, and attend to her personal hygiene). Sarfaty's symptoms gradually improved as her medication began to work, but the improvement was gradual and involved repeated setbacks. (Sarfaty Dep. at 104, R.63 at Ex. B, 106-07, Vol. 7 at 1323-24.) It was not until April 2004 that Sarfaty was reliably able to take care of herself well enough that her psychiatrist would release her to work. (Id. at 138, Vol. 7 at 1330.) The record evidence shows that Sarfaty's bipolar disorder is an incurable condition and that even the best medical care cannot prevent debilitating relapses. (Sarfaty Aff. ¶ 25, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1303.) Sarfaty constantly monitors her symptoms in order to reduce her chances of experiencing another severe depression. However, she knows that her mental health is fragile. (Id.) In light of Sarfaty's history of severe, recurring depression, a reasonable jury could find it likely that Sarfaty will experience additional severe depressions in the future. A jury could also conclude that her previous symptoms of depression – including her total inability to care for herself – are likely to recur. Adding together the past times in which she could not care for herself with the future times in which a jury expects that she may be unable to do so, the jury could reasonably find that Sarfaty is substantially limited in the major life activity of caring for herself. C. A jury could reasonably find that Sarfaty's disability was a motivating factor in Mothers Work's decision to terminate her. The ADA prohibits employers from relying on an employee's disability as "a motivating factor" in a challenged employment decision. Buchanan v. City of San Antonio, 85 F.3d 196, 200 (5th Cir. 1996) (citing with approval Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301-03 (8th Cir. 1995)). Although the district court believed there was a factual dispute about whether Mothers Work terminated Sarfaty because she "was intending to quit" (Order at 12, R.65, R.E. at 4, Vol. 9 at 1680), it granted summary judgment on the ground that the EEOC had produced no evidence to show that the decisionmakers were aware that Sarfaty had bipolar disorder. (Id. at 12-13.) To the contrary, the evidence is sufficient to show that Mothers Work knew about some of Sarfaty's symptoms and wanted to terminate her because she exhibited these symptoms. There are three flaws in the district court's approach to the evidence of the company's level of knowledge and motivation for its decision. First, a reasonable jury could find that Gottlieb was aware of several symptoms of Sarfaty's condition, that she had a negative response to those symptoms, and that she wanted to terminate Sarfaty because of them. The evidence is sufficient to allow a jury to conclude that the company took action based on Sarfaty's bipolar disorder. Second, a jury could reasonably find that Sarfaty's medical information was available in the company's files at the time of her termination. For this reason, a jury could find the decisionmakers' claim that they were unaware of Sarfaty's condition when they terminated her to be inherently incredible. Finally, a jury could conclude that the decisionmakers fabricated a reason for terminating Sarfaty (job abandonment) to cover up the real reason for their decision – a desire to rid themselves of an employee with a disability who needed leave to obtain treatment and manage her condition. That the company proffered such a contrived explanation for its decision would allow a jury to question further the plausibility of the decisionmakers' claimed ignorance of Sarfaty's condition. 1. A jury could reasonably find that Mothers Work terminated Sarfaty because of Gottlieb's reactions to symptoms that cannot be separated from Sarfaty's disability. The district court erred in refusing to allow a jury to consider the evidence and to draw its own conclusions about what Mothers Work knew and why it acted as it did. By excusing Mothers Work's actions because "the EEOC fails to present any evidence that at the time of her discharge, Mothers Work was aware that Sarfaty suffered from any bipolar condition" (Order at 13, R.65, R.E. at 4, Vol. 9 at 1681), the district court improperly separated symptoms of a disability from the disability itself. The court's approach would allow an employer to escape liability for age discrimination if it terminated an employee based on his gray hair and wrinkled skin but without knowing the employee's precise age. Action that is taken based on characteristics that are associated with a protected classification is discrimination based on that classification. See EEOC v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997) ("Whether Kinney fired Martinson because he suffered from epilepsy or because of the ‘specific attributes' of his disease, i.e., his seizures, is immaterial – both are disabilities and an employer may not use either to justify discharging an employee so long as that employee is qualified for the job."). A reasonable jury could find that Gottlieb decided to terminate Sarfaty at least in part because she wanted to eliminate an employee whose fluctuating moods adversely affected those around her and who required leave to manage her condition. The evidence shows that Sarfaty was such a strong employee that she had taken over as Acting Director of Stores for the Motherhood division while Gottlieb was on vacation. (Sarfaty Dep. at 24, R.46 at Ex. B, Vol. 3 at 524.) Nevertheless, as soon as Sarfaty's subordinates complained about her "bizarre" behavior and symptoms of depression, and Sarfaty took medical leave to deal with her "stress," Gottlieb began to orchestrate an effort to get Sarfaty terminated. (Gottlieb Decl. ¶ 9, R.46 at Ex. A, Vol. 3 at 514; Wise Decl. ¶¶ 3-7, R.46 at Ex. D, Vol. 3 at 567-68; Wise E-Mail ¶¶ 1-3, 11, R.63 at Ex. Q Bates MW00416, Vol. 8 at 1499-1500.) To the extent that Gottlieb terminated Sarfaty based on the symptoms of her disability (stress, reportedly bizarre behavior, and depression) or her efforts to obtain treatment, a jury could infer that Gottlieb was acting on the basis of widespread stigma against people with mental illness. See generally U.S. Dep't of Health & Human Servs., Mental Health: A Report of the Surgeon General – Executive Summary viii (1999) [hereinafter Surgeon General's Report] (noting "stigma that many in our society attach to mental illness and to people who have a mental illness"); Peter Byrne, Stigma of Mental Illness and Ways of Diminishing It, 6 Advances in Psychiatric Treatment 65 (2000)<2> (describing the "ubiquity" of mental illness stigma). The Surgeon General has noted, "The fact that many, if not most, people have experienced mental health problems that mimic or even match some of the symptoms of a diagnosable mental disorder tends, ironically, to prompt many people to underestimate the painful, disabling nature of severe mental illness." Surgeon General's Report at xiv. As one writer has poignantly described: People around you view your symptoms as shortcomings: "It's always about you you you. . . . Must you always draw attention to yourself? . . . Go away. You're scaring me!" Or discount your feelings: "You're making mountains out of molehills. . . . Just get over it! . . . Cheer up and give us a smile." Lana R. Castle, Bipolar Disorder Demystified: Mastering the Tightrope of Manic Depression 56 (Marlowe & Co. 2003). A jury could conclude that Mothers Work employees, including Gottlieb, shared this feeling that mental illness reflects personal weakness. General office gossip while Sarfaty was on medical leave characterized her as having gone "off her rocker." (Williams Dep. of 2/9/06 at 18-19, R.63 at Ex. J, Vol. 7 at 1418.) Moreover, Gottlieb suggested to Saylors that Sarfaty was exaggerating her need for medical leave. (Saylors Dep. at 40, R.46 at Ex. I, Vol. 3 at 592.) A jury could conclude that Mothers Work terminated Sarfaty in part because the decisionmakers saw Sarfaty's medical leave as unnecessary and believed that she could have pulled herself together through sheer willpower. A jury could also conclude that Mothers Work routinely discharged individuals who were taking FMLA leave. (Latko Aff. ¶¶ 14, 18, R.63 at Ex. R, Vol. 8 at 1605-06.) Because Sarfaty took this leave in order to receive treatment, a termination based on the leave would be intimately linked to Sarfaty's bipolar disorder. In addition to finding that Mothers Work terminated Sarfaty out of a belief that she was exaggerating her symptoms and should not have taken leave, a jury could also find that Mothers Work terminated her in part because her mental illness made those around her uncomfortable. Wise told Gottlieb that Sarfaty's behavior "was taking a toll on me," and that she personally "needed to avoid any further contact with her." (Wise E-Mail ¶¶ 3, 13, R.63 at Ex. Q Bates MW00416, Vol. 8 at 1499-1500.) Gottlieb also expressed discomfort with Sarfaty, telling Sarfaty that Sarfaty was not as good as Sarfaty thought she was. (Sarfaty Dep. at 44, R.59 at Ex. K, Vol. 5 at 1007.) A jury could find that Gottlieb terminated Sarfaty in part for this reason. Terminating an employee because of discomfort with the employee's mental illness would be consistent with society's general approach towards people who are mentally ill. "A person's being ‘crazy' or ‘unbalanced' is generally taken to be an understandable reason not to want the person at one's dinner party, in one's bed, or at the next table at Starbucks." Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 Geo. L.J. 399, 406 (Jan. 2006). Elizabeth Emens has written at length about the "hedonic costs" to mentally healthy individuals of being around people who are mentally ill, defining those costs as an increase in negative emotion or a loss of positive emotion. Id. at 420-42. "Numerous studies," she says, "document the transmission of negative emotions by individuals suffering from depression." Id. at 435. Although it is understandable that people wish to avoid picking up the negative emotions of mentally ill coworkers, the ADA was passed in part to assure that employers would not use such reactions to justify adverse decisions in the workplace against persons with disabilities. See H.R. Rep. No. 101-485(III), at 25 (1990) ("many of the problems faced by disabled people are not inevitable, but instead are the result of discriminatory policies based on unfounded, outmoded stereotypes and perceptions, and deeply imbedded prejudices toward people with disabilities"). To the extent that Gottlieb relied on prejudice or any other response to the symptoms of Sarfaty's bipolar disorder, her decision was based on Sarfaty's disability and was illegal under the ADA. Because the evidence allows the inference that Gottlieb was motivated at least in part by concerns about Sarfaty's symptoms and/or her request for leave, the district court erred by not giving a jury the opportunity to assess Mothers Work's level of knowledge and motivation. 2. Mothers Work cannot escape liability for its decision to terminate Sarfaty by claiming ignorance of her condition. As described in the previous section, a jury could find that Gottlieb had actual knowledge of many of Sarfaty's symptoms. The district court erred in requiring the EEOC to prove that "at the time of her discharge, Mothers Work was aware that Sarfaty suffered from any bipolar condition." (Order, R.65, R.E. at 4, Vol. 9 at 1680-81.) The ADA does not require such a specific level of knowledge in order to hold employers responsible for discriminatory decisions. Although it is true that not every employee with "bizarre" behavior suffers from a disability that is protected under the ADA, the decisionmakers in this case deliberately acted based on Sarfaty's symptoms while going out of their way to maintain a posture of technical ignorance about her disability. Gottlieb knew that Sarfaty was on company-approved medical leave for stress, and Wise had told her that Sarfaty seemed "severely depressed." (Wise E-Mail ¶ 13, R.63 at Ex. Q Bates MW00416, Vol. 8 at 1500.) Based solely on Wise's and Leddy's second-hand accounts of Sarfaty's comments to them, Gottlieb decided that Sarfaty was fabricating her need for medical leave and that she was not truly ill. (Saylors Dep. at 40, R.46 at Ex. I, Vol. 3 at 592.) At no point did Gottlieb ever ask to see the medical documentation that Sarfaty had supplied to justify her leave request. Had she looked at the documents, she would have understood that Sarfaty's stress was a symptom of mental illness. The documents that Mission Vista Hospital faxed to Mothers Work described Sarfaty's hospitalization for "major depressive disorder" and noted her "extreme anxiety" and panic attacks. (Disability Claim Form at Bates 71, R.59 at Ex. F, Vol. 5 at 928.) Sarfaty's doctor noted on the forms that she was undergoing "intense psychotherapy" and was currently unable to engage in work of any kind. (Physician's Certification at Bates 74, R.59 at Ex. F, Vol. 5 at 931.) Although the doctor predicted that Sarfaty would be able to return to work on November 17, 2003 (id.), this prediction did not negate the existence of a disability because an individual who can work may be substantially limited in another major life activity. See Toyota Motor Mfg., 534 U.S. at 201; Dutcher, 53 F.3d at 726 & n.10. Swartz and Cohen, the two other decisionmakers, similarly exhibited deliberate blindness to Sarfaty's disability. Despite Swartz's position as general counsel, notice of Sarfaty's medical leave went not to him but to the one other individual who worked in his office. (Dougherty Letter, R.59 at Ex. P, Vol. 5 at 1052-53; Swartz Dep. of 12/8/05 at 132, R.59 at Ex. T, Vol. 5 at 1091.) Although he must have known that Sarfaty was on some sort of leave because he claims to have tried repeatedly to contact her (Swartz Dep. of 12/8/05 at 13-14, R.46 at Ex. H, Vol. 3 at 583), he did not check to learn the nature of the leave or the evidence which justified it. (Swartz Dep. of 12/8/05 at 42-43, R.59 at Ex. T, Vol. 5 at 1085- 86.) Likewise, Cohen – the head of the human resources department and Dougherty's direct supervisor – never checked with Dougherty or looked in Sarfaty's file for details of Sarfaty's leave. (Cohen Dep. at 74, R.59 at Ex. W, Vol. 5 at 1098.) Had the decisionmakers looked at Sarfaty's file, they would have found a copy of the letter in which Dougherty told Sarfaty, "Our concern is that you get well. Therefore, we are requesting that you focus on doing whatever is necessary to achieve that goal." (Swartz Dep. of 12/8/05 at 74, R.63 at Ex. M, Vol. 8 at 1437.) A jury could find that it would have been unreasonable for the decisionmakers to conclude that Sarfaty's failure to return phone calls meant that she was abandoning her job when Dougherty had expressly told her to focus entirely on getting well. Notably, Sarfaty's request for a medical leave constituted a request for a reasonable accommodation. Once Sarfaty had requested a reasonable accommodation, Mothers Work was obligated to participate with her in an interactive process to determine what accommodation, if any, would be appropriate. See Cutrera v. Bd. of Sup'rs of La. State Univ., 429 F.3d 108, 112 (5th Cir. 2005). Mothers Work could not escape this obligation by shielding itself from knowledge of her disability. Sears, 417 F.3d at 804. By terminating Sarfaty while she was on leave, Mothers Work unilaterally denied her any reasonable accommodation. The burden falls on Mothers Work to demonstrate why it was justified in doing so. See Cutrera, 429 F.3d at 113 ("An employer may not stymie the interactive process of identifying a reasonable accommodation for an employee's disability by preemptively terminating the employee before an accommodation can be considered or recommended."); Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1058 (5th Cir. 1997) (defendant has burden of proving undue hardship of proposed reasonable accommodation). The EEOC urges this Court to hold that a company's deliberate efforts to avoid knowledge of a disability cannot protect it from liability under the ADA. By using tunnel vision and not consulting with Dougherty, the decisionmakers in this case may have been able to maintain technical ignorance of Sarfaty's disability. Under the facts of this case, however, their technical ignorance should not be enough to defeat liability. Moreover, given the degree to which Gottlieb relied on Sarfaty's symptoms in deciding to terminate her, a jury could reasonably reject the ignorance defense as inherently incredible. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose."). 3. A jury could reasonably find that Mothers Work's stated reason for terminating Sarfaty – job abandonment – is pretextual. According to Mothers Work, it terminated Sarfaty because she failed to return Gottlieb's and Swartz's phone calls regarding her expense account, leading them to conclude that she had voluntarily abandoned her job. (Motion at 21-22, R.45, Vol. 2 at 505-06.) The record evidence, however, casts this explanation into doubt, as the district court recognized in refusing to grant summary judgment on this basis. (Order at 12, R.65, R.E. at 4, Vol. 9 at 1680.) In the first place, a reasonable jury could disbelieve Gottlieb's and Swartz's claims that they tried to contact Sarfaty. Despite having agreed to do so, Mothers Work has produced no telephone records to confirm that the phone calls ever took place. (Swartz Dep. of 12/9/05 at 117, R.59 at Ex. S, Vol. 5 at 1072.) Both Sarfaty and her mother deny having received any telephone messages from Gottlieb or Swartz. (Sarfaty Dep. at 146-47, Ex. 46 at Ex. B, Vol. 3 at 547; Enrique Sarfaty Dep. at 42, R.46 at Ex. K, Vol. 3 at 600.) Sarfaty emphatically testified, "If I knew that someone from Mothers Work was trying to contact me during that period of time, I would have called them back." (Sarfaty Dep. at 148, R.46 at Ex. B, Vol. 3 at 547.) Williams, moreover, testified that in his experience, Mother Work would never terminate an employee simply for failing to respond to telephone messages. (Williams Dep. of 10/26/05 at 88, R.59 at Ex. X, Vol. 5 at 1118.) He explained that if an employee did not return phone calls, Mothers Work would send "a couple of notices via a trackable mail system." (Id.) Mothers Work has offered evidence of only one letter that it claims to have sent to Sarfaty – Swartz's letter of October 17 -- and it is not clear that the letter was actually sent. (Swartz Letter, R.59 at Ex. V, Vol. 5 at 1095; Swartz Dep. of 12/8/05 at 13, R.46 at Ex. H, Vol. 3 at 583.) To the contrary, neither Mothers Work nor Airborne Express (Mothers Work's carrier of choice) has any record of having sent it and Sarfaty denies having received it. (Dougherty Dep. at 60, R.59 at Ex. L, Vol. 5 at 1033; Swartz Dep. of 12/9/05 at 153, R.59 at Ex. S, Vol. 5 at 1076; R.46, Sarfaty Dep. at 146-47, R.46 at Ex. B, Vol. 3 at 547.) Cohen, the Vice President of Human Resources, further called Mothers Work's explanation into question when he testified that an employee who was on medical leave could not logically abandon her job. (Cohen Dep. at 110-11, R.59 at Ex. W, Vol. 5 at 1103-04.) Indeed, although Mothers Work's policy requires that all terminations be reviewed with the human resources department "in advance of termination" (Termination Form, R.59 at Ex. R, Vol. 5 at 1058), Cohen testified that he did not know until the day of his deposition that Sarfaty had been terminated for job abandonment. (Cohen Dep. at 74, R.59 at Ex. W, Vol. 5 at 1098.) Mothers Work's failure to review Sarfaty's purported job abandonment with Cohen prior to terminating her suggests, again, that its explanation for termination was pretextual. The record is replete with evidence suggesting that, contrary to Mothers Work's claims, Sarfaty was terminated at least in part because of her disability. Saylors testified that Gottlieb was concerned because Sarfaty's subordinates disliked working with her. (Saylors Dep. at 40, 42, R.46 at Ex. I, Vol. 3 at 592- 93.) The subordinates, in turn, singled out Sarfaty's ‘bizarre" behavior as the reason for their discomfort. (Wise E-Mail ¶¶ 1-3, 11, R.63 at Ex. Q Bates MW00416, Vol. 8 at 1499-1500.) Saylors also testified that Gottlieb "was upset about Monica's request for medical leave" and "did not believe it had merit." (Saylors Dep. at 40, R.46 at Ex. I, Vol. 3 at 592.) Williams likewise testified that he overheard Swartz saying that he would feel comfortable terminating Sarfaty "even just based upon the fact that she would be out of the business for the two busiest holidays of the year." (Williams Dep. of 2/9/06 at 13, R.63 at Ex. J, Vol. 7 at 1417.) Mothers Work terminated Sarfaty only four days after it granted her twelve weeks of medical leave. (Dougherty Letter, R.59 at Ex. P, Vol. 5 at 1052; Swartz Letter, R.59 at Ex. V, Vol. 5 at 1095.) This timing suggests a causal link. See Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006) (temporal proximity can be evidence of pretext). From this evidence, a reasonable jury could conclude that Mothers Work discharged Sarfaty at least in part because of discrimination. The stated ground for discharge – job abandonment – finds no support in the record. A jury could reasonably conclude that Mothers Work's explanation is pretextual. CONCLUSION The district court erred by focusing on Sarfaty's current ability to work rather than on her substantial limitations in other major life activities. Additionally, the district court failed to hold Mothers Work accountable for terminating Sarfaty based on the symptoms and/or treatment of her mental illness. A reasonable jury, looking at all of the evidence and making all reasonable inferences in favor of the EEOC, could find Mothers Work liable under the ADA. Because genuine issues of material fact preclude the award of summary judgment, the EEOC respectfully asks this Court to reverse and remand for trial. Respectfully submitted, RONALD S. COOPER General Counsel _____________________________ VINCENT J. BLACKWOOD GAIL S. COLEMAN Acting Associate General Counsel Attorney EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed this brief with the Court by sending, via Federal Express, seven copies together with a computer disk containing a PDF version of the brief. I also certify that I served two copies of this brief, as well as a computer disk containing a PDF version of the brief, this 1st day of November, 2006, by Federal Express, to the following counsel of record: Edward S. Mazurek Sarah E. Pontoski MORGAN, LEWIS & BOCKIUS LLP 1701 Market St. Philadelphia, PA 19103 Randolph P. Tower CLEMENS & SPENCER 112 E. Pecan St., Suite 1500 San Antonio, TX 78205 ______________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,939 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 with 14 point Times New Roman. ______________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov *********************************************************************** <> <1> Available at: http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=2873159&dopt=Citation. <2> Available at http://apt.rcpsych.org/cgi/content./full/6/5/65.