No. 11-1769 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________________________ STACY A. NABER, Plaintiff/Appellant, v. DOVER HEALTHCARE ASSOCIATES, INC., Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Delaware _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF/APPELLANT _______________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ELIZABETH E. THERAN Attorney New York State Bar No. 4020079 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . 2 B. District Court's Decision. . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 THE DISTRICT COURT CORRECTLY RECOGNIZED THAT A REASONABLE JURY COULD FIND THAT THE PLAINTIFF'S MAJOR DEPRESSION IS A COVERED DISABILITY UNDER THE ADA, AS AMENDED BY THE ADAAA, BECAUSE IT SUBSTANTIALLY LIMITS HER IN A MAJOR LIFE ACTIVITY. . . . . . . . . . . . . . . . . . . . . . . .12 A. The ADAAA Profoundly Changed-and Greatly Simplified-the "Substantial Limitation" Analysis Under the ADA. . . . . . . . . . . . 12 B. A Reasonable Jury Could Readily Find that Naber is Substantially Limited in a Major Life Activity by her Major Depression. . . . . . . . . . . . 19 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 CERTIFICATE OF BAR MEMBERSHIP. . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF IDENTICALLY FILED BRIEFS. . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF VIRUS CHECK. . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . 22, 23 Desmond v. Mukasey, 530 F.3d 944 (D.C. Cir. 2008). . . . . . . . . . . . 21 EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606 (5th Cir. 2009). . . . . .23 Emory v. AstraZeneca Pharm. LP, 401 F.3d 174 (3d Cir. 2005). . . . . . 22-23 Maslanka v. Johnson & Johnson, Inc., 305 Fed. Appx. 848 (3d Cir. 2008). . . . . . . . . . . . . . . 9, 10, 11, 20 Maynard v. Goodwill Indus. of Del. & Del. County, Inc., 678 F. Supp. 2d 243 (D. Del. 2010). . . . . . . . . . . . . . . . . . . . . 7 McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999). . . . . . 22 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . . . . 13, 14 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). 13, 14, 15, 19 Turner v. Hershey Chocolate USA, 440 F.3d 604 (3d Cir. 2006). . . . . . 7 United States v. McQuilkin, 78 F.3d 105 (3d Cir. 1996). . . . . . . . . 20 STATUTES & LEGISLATIVE HISTORY 42 U.S.C. §§ 12012(1)(A)-(C) (2009). . . . . . . . . . . . . . . . . . . . .8 42 U.S.C. § 12101(b)(1). . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 12101 note, § 2(a)(3) (2009). . . . . . . . . . . . . . . 13-14 Id. § 2(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Id. §§ 2(a)(4)-(7). . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Id. § 2(a)(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18 Id. § 2(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Id. §§ 2(b)(4)-(5). . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 Id. § 2(a)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 12102(1)(A) (2009). . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. § 12102(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 12102(2)(A) (2009). . . . . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. § 12102(3)(B) (2009). . . . . . . . . . . . . . . . . . 15, 16, 20 42 U.S.C. § 12102(4)(C) (2009). . . . . . . . . . . . . . . . . . 15, 23 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 12117. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12206. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110- 325, 122 Stat. 3553 (2008). . . . . . . . . . . . . . . . . . . .1, 2, 10, 13 ADA Amendments Act of 2008, S. 3406, 110th Cong. (2d Sess.) 8346 (2008) (Statement of Managers). . . . . . . . . . . . . . . . . . . . . 19 REGULATIONS 29 C.F.R. Pt. 1630 (2011). . . . . . . . . . . . . . . . . . . . . 15-16 29 C.F.R. § 1630.2(i) (pre-ADAAA). . . . . . . . . . . . . . . . . . . . . 8 29 C.F.R. § 1630.2(j) (pre-ADAAA). . . . . . . . . . . . . . . . . . . . . 8 29 C.F.R. § 1630.2(j)(1)(i) (pre-ADAAA). . . . . . . . . . . . . . . . . . 18 29 C.F.R. § 1630.2(j)(1)(ii) (2011). . . . . . . . . . . . . . . 16, 18, 19 29 C.F.R. § 1630.2(j)(1)(iv) (2011). . . . . . . . . . . . . . . . . . . . 16 29 C.F.R. § 1630.2(j)(1)(v) (2011). . . . . . . . . . . . . . . . . . . . .18 29 C.F.R. § 1630.2(j)(1)(ix) (2011). . . . . . . . . . . . . . . . . . 16, 20 29 C.F.R. § 1630.2(j)(3)(ii) (2011). . . . . . . . . . . . . . . . . . 16, 17 29 C.F.R. § 1630.2(j)(3)(iii) (2011). . . . . . . . . . . . . . . . . . 17 29 C.F.R. Pt. 1630 app., § 1630.2(j)(1)(v) (2011). . . . . . . . . . . . 19 RULES & OTHER AUTHORITIES Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 29(d). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . 25 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . 25 Fed. R. App. P. 32(a)(7)(B)(iii). . . . . . . . . . . . . . . . . . . . . 25 3d Cir. L.A.R. 28.3. . . . . . . . . . . . . . . . . . . . . . . . . . . 25 3d Cir. L.A.R. 29.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . 25 3d Cir. L.A.R. 31.1(c). . . . . . . . . . . . . . . . . . . . . . . . . . 26 Chai R. Feldblum, Definition of Disability Under Federal Anti- Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J. Emp. & Lab. L. 91 (2000). . . . . . . . . . . . 13 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title I of the Americans with Disabilities Act of 1990 ("ADA"), which prohibits employment discrimination based on disability. See 42 U.S.C. §§ 12117, 12206. This appeal presents an important issue concerning the effect of the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA"), Pub. L. No. 110-325, 122 Stat. 3553 (2008), on the ADA's definition of "disability." In this case, the district court held that the plaintiff's major depression could be found to be a covered disability under the amended ADA, but in doing so it did not acknowledge the full scope of the significant changes to the coverage analysis effectuated by the ADAAA. Because resolution of this issue, which the defendant likely will raise and this Court will undoubtedly need to address in this appeal, will affect the EEOC's enforcement of the ADA, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF ISSUE<1> Whether the district court correctly found that the plaintiff's major depression is a covered disability under the ADA, as amended by the ADAAA, Pub. L. No. 110-325, 122 Stat. 3553 (2008). STATEMENT OF THE CASE A. Statement of the Facts The defendant in this case operates Silver Lake Center, a 120-bed nursing home facility in Dover, Delaware. R.46 (Memorandum Order ("Mem.") at 1). The plaintiff, Stacy Naber, was hired by Silver Lake in August 2007 as a Recreation Assistant, a job that entailed performing daily activities with the nursing home residents, helping to escort them to and from their daily activities, and conducting room visits. R.45 (Naber dep. 21, 41). During her employment at Silver Lake, Naber's supervisor was Erin Mueller, the Director of Recreation. R.46 (Mem. at 2). Naber testified that when she first began working at Silver Lake, her relationship with Mueller was "cordial." R.45 (Naber dep. 90). Beginning sometime in 2008, however, their relationship changed; Naber testified that Mueller began making derogatory comments about her clothing and mannerisms to other coworkers. Id. at 91-94. Naber further testified that Mueller accused her of having a relationship with a coworker outside of work and started a rumor that Naber might be pregnant by making an unfounded remark to that effect to a mutual coworker. Id. at 100-01. Naber related her concerns about Mueller to HR sometime in 2008, which resulted in a meeting with Naber, Mueller, and Theresa Maloney from HR. Id. at 102-05. Naber testified that, at the meeting, Mueller denied making any comments or spreading any rumors about Naber but apologized for asking her about the alleged relationship with her coworker. Id. at 105. As reflected in the district court's decision, Naber also related in an affidavit that she and another coworker had requested to meet directly with James Adams, Silver Lake's Nursing Home Administrator, at some point in 2008 regarding their issues with Mueller. The district court recounted: According to Naber, when Adams became aware of that request, he called the two into his office and told them "he was tired of what was going on in the Recreation department, that he liked what Ms. Mueller was doing in the Department, and that if we did not like it, we could look for other jobs." R.46 (Mem. at 4). (According to the district court, in his deposition, Adams testified that he remembered praising Mueller's work but did not remember having such a meeting with Naber or saying anything about "looking for other jobs." Id. at 4 n.20.) In January 2009, Mueller took six weeks' maternity leave. R.45 (Naber dep. 134-35). Naber testified that, while Mueller was out on leave, she became "exhausted" due to the extra workload caused by the department's being "one man short." Id. at 136-37. She testified that, although she did not work extra hours during this period, she was doing more work than she had in the past during her regular hours and that she did more tasks by herself. Id. at 137. During this period while Mueller was out on leave, Naber testified that she met with Janet Krauss, Silver Lake's Human Resources Regional Manager, and told her that she was "exhausted" by her current workload and that she was frustrated with Mueller about the previous rumor-spreading incidents. Id. at 153-54. According to the district court's decision, Mueller returned from maternity leave on February 23, 2009. R.46 (Mem. at 4). Naber testified that, shortly after Mueller's return, she developed "anxiety" about going in to work "because [she] felt like [she] was walking on pins and needles." R.45 (Naber dep. 134). She testified, "I felt like any little thing I did, I was being watched [by Mueller], and I felt very uncomfortable working." Id. During this period, Naber testified, she was experiencing total sleeplessness "at least once or twice per week" due to "the anxiety of going in to work" the next day. Id. at 133-34. On or about March 10, 2009, Naber was diagnosed with major depression. R.45 (Naber dep. 197). According to the district court's decision, in connection with a request for FMLA leave of that date, Naber submitted an Initial Medical Certification on which Maryellen Carbaugh, a Licensed Professional Counselor of Medical Health, listed Naber's diagnosis as "Major Depression, Single Episode, Moderate," and listed "poor sleep, poor appetite, low mood, tearfulness, stress at work due to hostile environment" as the medical facts supporting her certification. R.46 (Mem. at 7). The district court's opinion states that "Carbaugh advised that Naber should be on a [sic] intermittent leave in order to attend weekly hour-long counseling sessions and twice-monthly medical appointments." Id. at 8. Naber described her depressive symptoms as follows: "I have anxiety. I . . . can't sleep sometimes. I can't eat. I get . . . really upset that I cry. Basically, I get real angry." R.45 (Naber dep. 127-28). She further testified that her appetite was poor and that she "didn't want to eat," although she didn't stop eating altogether or starve herself. Id. at 128, 228. With respect to sleeping, she testified that, on the nights when she couldn't sleep, she "would just get worked up and had [] anxiety" due to racing thoughts about work and, later, her termination. Id. at 229-30. Naber testified that "when I can't sleep, it's really hard to stay concentrated, to focus." Id. at 129, 132. She also testified, though, that she had trouble concentrating independently of the effects of diminished sleep: "I was always thinking about what happened . . . with my employment and what happened with . . . what took place. [I was] very upset." Id. at 228. Finally, Naber testified that she felt her condition was "temporary." R.45 (Naber dep. 230). When asked at her deposition what she meant by that, Naber explained that "I will get better eventually. It's just working through the issues, I guess." Id. She testified that no doctor had ever told her that she would get better, but that she just felt that she would eventually get better, "in time." Id. Silver Lake terminated Naber's employment on April 1, 2009, after an incident in which Naber was alleged to have falsified a resident's "Residential Participation Record and Individual Programming Log." R.46 (Mem. at 13). After filing administrative complaints with the Delaware Department of Labor and the EEOC and receiving a right to sue letter, Naber filed this lawsuit in December 2009, alleging that Silver Lake discriminated against her on the basis of her disability, depression, when it terminated her employment.<3> R.1 (Complaint at 2, 4-5). B. District Court's Decision In relevant part, the district court began its discussion by observing that Naber's ADA discrimination claim "is [] governed by the McDonnell Douglas burden-shifting analysis." R.46 (Mem. at 29). The court observed, "[t]o establish a prima facie case of unlawful discrimination under the ADA, Naber must demonstrate that she: '(1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse employment action because of that disability.'" Id. (quoting Maynard v. Goodwill Indus. of Del. & Del. County, Inc., 678 F. Supp. 2d 243, 255 (D. Del. 2010) (citing Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006))). The court then set out the applicable legal framework as follows: To qualify as disabled under the act, Naber must: (1) have a physical or mental impairment that substantially limits one or more major life activities; (2) have a record of such impairment; or (3) be regarded as having such an impairment. . . . Major life activities "include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." To be substantially limited means being (1) "[u]nable to perform a major life activity that the average person in the general population can perform" or (2) "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." In determining whether an individual is substantially limited in a major life activity, consideration must be given to: (1) "[t]he nature and severity of the impairment;" (2) "[t]he duration or expected duration of the impairment;" and, (3) "[t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." "An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability." The act also states that "[t]he definition of disability . . . shall be construed in favor of broad coverage of individuals under this chapter . . . ." Id. at 29-30 (quoting 42 U.S.C. §§ 12012(1)(A)-(C), 12102(2)(A) (2009) (emphasis added by district court); 29 C.F.R. §§ 1630.2(i), (j) (pre-ADAAA version)). The court also took note of the defendant's contention that "[Naber's] disability discrimination claim fails at the prima facie stage because she is not disabled." R.46 (Mem. at 29). The court explained that Silver Lake's argument was that Naber "does not have any physical or mental impairment that substantially limits any of her major life activities" because, although Naber testified at her deposition that her depression "limited her ability to sleep, eat, and concentrate," she also testified that she did eat something every day and that her "difficulty concentrating was associated with sleeplessness." Id. at 30. Further, the court noted, Silver Lake pointed to Naber's testimony that she "can't sleep sometimes," that she "was able to sleep," and that she could sometimes go to sleep with the use of Tylenol PM as evidence that she was not substantially limited in sleeping. Id. Finally, with respect to concentration, the district court observed: Silver Lake also maintains that the record demonstrates Naber's purported difficulty concentrating was not substantially limiting. Except for leaving work for weekly counseling sessions, there is no evidence she [was] unable to work her regular schedule. Silver Lake argues Naber's testimony that she "was always thinking about what happened" demonstrates that it was her termination, not her alleged disability, that affected her concentration. Silver Lake also notes that Naber was able to spend time with friends (going shopping and out to dinner) and traveled to Florida two or three times a year to visit with family as evidence that her depression was not disabling. Id. at 31. Finally, the district court observed, "Silver Lake contends that [Naber's] disability claim is flawed because, at best, Naber's condition was of limited duration and was entirely related to her strained relationship with Mueller. Silver Lake states that courts consistently find such conditions do not qualify as disabilities." Id. The court then turned to Silver Lake's argument that this Court's decision in Maslanka v. Johnson & Johnson, Inc., 305 Fed. Appx. 848 (3d Cir. 2008), "presents allegations analogous to Naber's." R.46 (Mem. at 32). The court observed that, in Maslanka, "the plaintiff was diagnosed as 'suffering from significant anxiety disorder and major depression associated with his stressful work situation' stemming from increasingly negative reviews from his supervisor." Id. (quoting Maslanka, 305 Fed. Appx. at 849-50). As the district court noted, the district court and this Court in Maslanka both found that the plaintiff's disability claim under the ADA failed because, although he made a showing that he was impaired by his conditions, he was unable to show that he was substantially limited in the major life activities of cognitive function, sleeping, or working. Id. This Court specifically noted that "the plaintiff's medical records reported that his anxiety and depression were expected to last only as long as he worked for the same supervisor or continued to receive negative reviews," that the plaintiff himself testified that "his sleeping problems only lasted approximately three days," and that his performance at work and ability to obtain a new job performing the same tasks immediately after his termination demonstrated that he was experiencing no limitation on his ability to work or on his cognitive function. Id. at 32-33. Accordingly, this court observed, the Maslanka Court stated that "'[n]o reasonable juror could conclude from the record evidence that [the plaintiff's] impairment was permanent or would have a long-term impact.'" Id. at 33 (quoting Maslanka, 305 Fed. Appx. at 852). The district court ultimately rejected Silver Lake's argument that "Naber's discrimination claim similarly fails because her alleged anxiety and depression stem exclusively from her strained relationship with Mueller and were of a temporary nature only." R.46 (Mem. at 33). The court observed: In opposition to Silver Lake's motion, Naber argues that the primary problem in Silver Lake's argument that Naber does not qualify as disabled is that it relies on cases decided before January 1, 2009. On September 25, 2008, the ADA Amendments Act of 2008 ("ADAAA") was enacted in order "[t]o restore the intent and protections of the Americans with Disabilities Act of 1990," and took effect January 1, 2009. As noted above, the ADAAA provides that the definition of disability "shall be construed in favor of broad coverage of individuals . . . ." Silver Lake correctly notes, however, that the passage of the ADAAA did not relieve Naber of proving that her alleged impairment "substantially limits" her ability to sleep. Silver Lake reiterates that to proceed with her disability claim, Naber must establish (1) that her alleged depression, and not some other factor, caused her occasional inability to sleep and (2) that her ability to sleep was substantially limited. Id. at 34 (internal citations omitted). The court then pointed to evidence in the record, highlighted by Naber, that distinguished this case from Maslanka and that could support a reasonable jury finding that Naber was substantially limited in sleeping. The court noted that there was no evidence or testimony in this case, as there was in Maslanka, that Naber's depression was "of limited duration" or "stemmed entirely from her strained relationship with her supervisor." R.46 (Mem. at 35). The court then observed that, "[u]nlike the plaintiff in Maslanka whose sleeping problems lasted only three days, Naber testified that, prior to her termination, she was unable to sleep at all one or two nights a week and that, currently, she is still unable to sleep at all 'a couple nights a week.'" Id. The court also noted that Naber disputed Silver Lake's assertion that her deposition testimony-i.e., that she hoped she would get better at some point in the future-demonstrated that her condition was "temporary." Id. The court concluded, "[v]iewing the facts and drawing all reasonable inferences in favor of Naber, . . . there is a question of fact as to whether Naber's previously-diagnosed depression is the cause of her inability to sleep one or two nights a week and whether that sleeplessness is substantially limiting as compared to the average person in the general population. Consequently, summary judgment cannot be granted on her ADA discrimination claim for failure to set forth a prima facie case that she is disabled." R.46 (Mem. at 35). However, the court found that summary judgment was appropriate on Naber's ADA claim because she could not show that Silver Lake's legitimate, non-discriminatory reason for her termination was pretextual. Id. ARGUMENT THE DISTRICT COURT CORRECTLY RECOGNIZED THAT A REASONABLE JURY COULD FIND THAT THE PLAINTIFF'S MAJOR DEPRESSION IS A COVERED DISABILITY UNDER THE ADA, AS AMENDED BY THE ADAAA, BECAUSE IT SUBSTANTIALLY LIMITS HER IN A MAJOR LIFE ACTIVITY. A. The ADAAA Profoundly Changed-and Greatly Simplified-the "Substantial Limitation" Analysis Under the ADA. As originally enacted twenty years ago, the ADA was intended "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Among other things, the statute prohibited employers from discriminating against a "qualified individual with a disability" because of that individual's disability. Id. § 12112(a). The term "disability" was defined to mean: "[1] a physical or mental impairment that substantially limits one or more of the major life activities of such individual, [2] a record of such an impairment, or [3] being regarded as having such an impairment." Id. § 12102(2). Over the next two decades, the courts increasingly came to interpret the ADA in unduly restrictive ways. For example, courts "defined" many people out of statutory coverage by imposing stringent requirements for individuals to show that they were "substantially limited" in a "major life activity." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196-98 (2002). Even when an individual's impairment was admittedly the basis for an employment decision, courts required plaintiffs who sought coverage based on the "regarded as" prong of the disability definition to prove the employer's perception of their limitations. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-91 (1999). As a result, courts often did not reach the question of whether an employer's conduct was discriminatory. See Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It? 21 Berkeley J. Emp. & Lab. L. 91, 140 (2000) (criticizing "a reading of the ADA that has radically reduced the number of people who can claim coverage under the law"). With the ADAAA of 2008, Congress asserted its intention "to restore the intent and protections of the Americans with Disabilities Act of 1990." Pub. L. No. 110-325, preamble, 122 Stat. 3553 (2008). Congress explained that it had "expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, [but] that expectation has not been fulfilled." Id. § 2(a)(3) (codified at 42 U.S.C. § 12101 note). Criticizing the Supreme Court for "eliminating protection for many individuals whom Congress intended to protect," id. § 2(a)(4), Congress expressly repudiated the holdings of Sutton and Toyota Motor Manufacturing. Id. §§ 2(a)(4)-(7). Congress declared that a purpose of the ADAAA was to "reinstat[e] a broad scope of protection to be available under the ADA." Id. § 2(b)(1). The plain language of the statute reflects that Congress had the "substantial limitation" issue directly in its sights when it amended the ADA. The Findings and Purposes section of the statute, 42 U.S.C. § 12101 note, states that "in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term "substantially limits" to require a greater degree of limitation than was intended by Congress." Id. § 2(a)(7). Likewise, § 2(a)(8) observes that "Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term 'substantially limits' as 'significantly restricted' are inconsistent with congressional intent, by expressing too high a standard." In Findings and Purposes § 2(b), among the statutory purposes of the ADAAA, Congress listed: (4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms "substantially" and "major" in the definition of disability under the ADA "need to be interpreted strictly to create a demanding standard for qualifying as disabled," and that to be substantially limited in performing a major life activity under the ADA "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives"; [and] (5) to convey congressional intent that the standard created by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), for "substantially limits," and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis[.] 42 U.S.C. § 12101 note, §§ 2(b)(4)-(5). At least two other provisions of the amended statute pertaining to the definition of "disability" are directly relevant to this case. 42 U.S.C. § 12102(4)(C) provides that "[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability." 42 U.S.C. § 12102(3)(B) specifies that "Paragraph (1)(C) ["regarded as" having a substantially limiting impairment] shall not apply to impairments that are transitory and minor," and defines "transitory" as "an actual or expected duration of six months or less." In March of this year, the EEOC promulgated a new set of regulations implementing the equal employment provisions of the amended ADA. 29 C.F.R. Pt. 1630 (2011). The new regulations note, inter alia, that "[t]he determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term 'substantially limits' shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for 'substantially limits' applied prior to the ADAAA." 29 C.F.R. § 1630.2(j)(1)(iv) (2011). The regulations provide: An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ii) (2011). The regulations also point out that "[t]he six-month 'transitory' part of the 'transitory and minor' exception to 'regarded as' coverage in [42 U.S.C. § 12102(3)(B)] does not apply to the definition of 'disability' under [the 'actual disability' prong] or [the 'record of' prong] of this section. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section." 29 C.F.R. § 1630.2(j)(1)(ix) (2011). They also include major depressive disorder on the list of "particularly simple and straightforward" disabilities in 29 C.F.R. § 1630.2(j)(3)(ii), albeit with respect to the major life activity of brain function: [T]he individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under [the "actual disability" prong] or [the "record of" prong] of this section. Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. Therefore, with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward. For example, . . . it should easily be concluded that . . . major depressive disorder . . . substantially limit[s] brain function. The types of impairments described in this section may substantially limit additional major life activities not explicitly listed above. 29 C.F.R. § 1630.2(j)(3)(ii)-(iii) (2011). Although the district court was technically correct when it observed that "the passage of the ADAAA did not relieve Naber of proving that her alleged impairment 'substantially limits her ability to sleep,'" the court did not recognize that the "substantial limitation" analysis itself has changed markedly with the amended statute. For example, in setting forth the analytical framework for Naber's disability claim, the district court stated, citing the pre-ADAAA regulation, that "substantially limited" means "being (1) '[u]nable to perform a major life activity that the average person in the general population can perform' or (2) '[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.'" R.46 (Mem. at 29-30) (quoting 29 C.F.R. § 1630.2(j)(1)(i)-(ii)). However, as observed above, Congress rejected the "significantly restricted" standard as too stringent, see 42 U.S.C. § 12101 note, § 2(a)(8), and the revised regulation provides that "[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." 29 C.F.R. § 1630.2(j)(1)(ii) (2011). The revised regulation also counsels that the appropriate comparison for substantial limitation purposes is to "most people in the general population" rather than the "average person in the general population." 29 C.F.R. § 1630.2(j)(1)(v) (2011). The legislative history of the substantial limitation provision in the statute reflects that Congress used the "most people" language in describing its intent in passing the original ADA: We believe that the manner in which we understood the intended scope of "substantially limits" in 1990 continues to capture our sense of the appropriate level of coverage under this law . . . . As we described this in our committee report to the original ADA in 1989: "A person is considered an individual with a disability for purposes of the first prong of the definition when [one or more of] the individual's important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people. A person who can walk for 10 miles continuously is not substantially limited in walking merely because on the eleventh mile, he or she begins to experience pain because most people would not be able to walk eleven miles without experiencing some discomfort. S. Rep. No 101-116, at 23 (1989)." We particularly believe that this test, which articulated an analysis that considered whether a person's activities are limited in condition, duration and manner, is a useful one. We reiterate that using the correct standard-one that is lower than the strict or demanding standard created by the Supreme Court in Toyota-will make the disability determination an appropriate threshold issue but not an onerous burden for those seeking accommodations or modifications. ADA Amendments Act of 2008, S. 3406, 110th Cong. (2d Sess.) 8346 (2008) (Statement of Managers). See also 29 C.F.R. Pt. 1630 app., § 1630.2(j)(1)(v) (2011) (characterizing this revision as "intended to conform the language to the simpler and more straightforward terminology used in the legislative history to the Amendments Act. The comparison between the individual and "most people" need not be exacting, and usually will not require scientific, medical, or statistical analysis.") B. A Reasonable Jury Could Readily Find that Naber is Substantially Limited in a Major Life Activity by her Major Depression. A reasonable jury could readily find that Naber's major depression renders her disabled within the meaning of the amended statute. Correctly framed under the amended ADA, the issue is whether Naber's major depression is a physical or mental impairment that substantially limits her in a major life activity as compared to most people in the general population. 42 U.S.C. § 12102(1)(A) (2009); 29 C.F.R. § 1630.2(j)(1)(ii) (2011). A reasonable jury could credit the (apparently uncontroverted) record evidence that Naber received a medical diagnosis of major depression in March 2009 and retains that diagnosis to this day. The defendant's argument that Naber should not be considered disabled because her depression is, or might be, "temporary" is unavailing for at least two reasons. First, there is no factual support for it in the record (at least, none described by the district court or the defendant in its briefs). Although Naber testified that she, quite reasonably, personally "hopes" that things will improve someday, no medical professional has opined that her condition is temporary or that it is solely related to conditions she experienced at work, as was the case with the plaintiff in Maslanka.<4> Second, as described above, the ADAAA makes clear that, while "regarded as" claims are not sustainable if "transitory and minor," no such provision exists for actual disability or "record of" disability claims. See 42 U.S.C. § 12102(3)(B). Thus, as the implementing regulation clarifies, "[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section." 29 C.F.R. § 1630.2(j)(1)(ix); see also United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir. 1996) ("It is a canon of statutory construction that the inclusion of certain provisions implies the exclusion of others. The doctrine of inclusio unius est exclusio alterius 'informs a court to exclude from operation those items not included in a list of elements that are given effect expressly by the statutory language.'") (internal citation omitted).<5> As to whether Naber's depression substantially limits her in a major life activity, as the district court found, a reasonable jury could credit her testimony that she does not sleep at all one to two nights a week and find, consistently with the broad mandate of the ADAAA, that she is substantially limited in sleeping compared to most people in the general population.<6> See generally Desmond v. Mukasey, 530 F.3d 944, 956 (D.C. Cir. 2008) (pre-ADAAA, observing that "a plaintiff's personal testimony cannot be inadequate to raise a genuine issue regarding his own experience"); see also id. (noting that a study relied on by the plaintiff and by another court in a different case reflected that "seventy-one percent of adults get five to eight hours of sleep per night" and that "only 8% of persons surveyed slept less than five hours on weeknights and 6% slept less than five hours on weekend nights"); McAlindin v. County of San Diego, 192 F.3d 1226, 1231, 1235 (9th Cir. 1999) (pre-ADAAA, holding that plaintiff had demonstrated a genuine issue of material fact regarding substantial limitation on sleeping based on declaration testimony that "since 1989, I have frequently been unable to sleep and have had severe insomnia" and doctor's letter describing various disturbances in plaintiff's sleep pattern due to medication). The defendant's arguments to the district court that Naber cannot show that she was substantially limited in sleeping because she slept sometimes, or eating because she ate sometimes and did not starve herself, were of little merit prior to the ADAAA and are of even less merit now. The issue with "substantial limitation" has never been whether the person is totally foreclosed from doing the major life activity in question, but the degree of limitation the person experiences. As the Supreme Court has long observed, the ADA "addresses substantial limitations on major life activities, not utter inabilities," and "[w]hen significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable." Bragdon v. Abbott, 524 U.S. 624, 641 (1998); see also Emory v. AstraZeneca Pharm. LP, 401 F.3d 174, 181 (3d Cir. 2005) ("What a plaintiff confronts, not overcomes, is the measure of substantial limitation under the ADA."); EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 619 (5th Cir. 2009) (noting Bragdon's holding that a limitation can be substantial without a completely disabling impairment). Post-ADAAA and its mandate of broader coverage, it should be abundantly clear that the "total foreclosure" position advocated by the defendant in this case has itself been foreclosed. Finally, it is equally clear that any argument that Naber is not disabled based on her ability to visit her family once or twice a year, go shopping with friends, or go out to dinner-also a position devoid of merit even prior to the ADAAA-is now a nonstarter. 42 U.S.C. § 12102(4)(C) provides that "[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability." If Naber can show that she is substantially limited in sleeping by her major depression, the amended statute provides that she does not need also to be limited in other major life activities to be considered disabled. CONCLUSION For the foregoing reasons, the district court's ruling that the defendant was not entitled to summary judgment as to whether the plaintiff is disabled under the ADA should be affirmed. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel s/Elizabeth E. Theran ELIZABETH E. THERAN Attorney New York State Bar No. 4020079 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF BAR MEMBERSHIP Pursuant to 3d Cir. L.A.R. 28.3(d), I certify that, as an attorney representing an agency of the United States, I am not required to be admitted to the bar of this Court. I also certify that all other attorneys whose names appear on this brief likewise represent an agency of the United States and are also not required to be admitted to the bar of this Court. See 3d Cir. L.A.R. 28.3, comm. cmt. August 26, 2011 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 5,699 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 3d Cir. L.A.R. 29.1(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 in Times New Roman 14 point. August 26, 2011 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC CERTIFICATE OF IDENTICALLY FILED BRIEFS Pursuant to 3d Cir. L.A.R. 31.1(c), Counsel for Amicus Curiae EEOC certifies that the text of the electronically filed version of this brief is identical to the text of the hard copies of the brief filed with the Court. August 26, 2011 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC CERTIFICATE OF VIRUS CHECK Pursuant to 3d Cir. L.A.R. 31.1(c), Counsel for Amicus Curiae EEOC certifies that a virus check using Trend Micro OfficeScan version 10.0 was performed on the electronic version of this brief on August 26, 2011, prior to electronic filing with the Court, and that no virus was detected. August 26, 2011 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system and filed one original and nine hard copies of the foregoing brief with the Court by next business day delivery, postage pre-paid, this 26th day of August, 2011. I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system: Counsel for Plaintiff/Appellant: Noel E. Primos, Esq. Schmittinger & Rodriguez 414 S. State St. P.O. Box 497 Dover, DE 19903 (302) 674-0140 nprimos@schmittrod.com Counsel for Defendant/Appellee: Michele H. Malloy, Esq. Littler Mendelson 1601 Cherry St. Three Parkway, Ste. 1400 Philadelphia, PA 19102 (267) 402-3004 mmalloy@littler.com s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC *********************************************************************** <> <1> We take no position with respect to any other issue presented in this appeal. <2> Citations to the record are abbreviated "R." and refer to the district court docket entry number. Pincites refer to the internal pagination of the document (e.g., deposition transcript pages or affidavit pages), not PACER pagination, except where the document in question is otherwise unpaginated. We also note that the bulk of the record documents in this case were filed under seal pursuant to a protective order of the district court, and we were accordingly not able to review them. The factual representations in this brief are thus based on the limited non- sealed portions of the record, including the complaint (R.1), the defendant's Supplemental Appendix in Support of its Motion for Summary Judgment (R.45), and the district court's decision (R.46). <3> With respect to her ADA claim, Naber alleged only conventional disability discrimination, not a failure to accommodate her disability. In her complaint, she alleged all three bases for disability coverage: "[S]he has had a mental impairment that substantially limits one or more of her major life activities, and/or she has had a record of such impairment, and/or she has been regarded by Defendant as having such an impairment." R.1 (Complaint at 2). <4> The Maslanka decision is, in any case, unpublished, non-precedential, and pre- ADAAA, so its precedential value as to this case is questionable at best. <5> As explained supra note 3, Naber did, at least originally, allege all three grounds for disability coverage. The district court's decision only mentions actual disability; it is unclear (without access to sealed documents) whether this is because Naber was no longer arguing "record of" or "regarded as" or because the court did not think it needed to reach these issues because it found that she was actually disabled. To the extent Naber may still have been pressing a "regarded as" claim, then the "transitory and minor" exception would, in theory, apply, but as argued above there is no record support for the application of this exception to Naber's depression. <6> Theoretically, as described above, the coverage analysis for an ADA plaintiff with major depression should be "particularly simple and straightforward" because major depression substantially limits the major life activity of brain function. See supra at 16. We acknowledge, however, that Naber never advanced this argument in district court.