Manuella Dionision Reed v. Lepage Bakeries, Inc. 00-1966 THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _____________________ No. 00-1966 _____________________ MANUELLA DIONISIO REED, Plaintiff-Appellant, v. LEPAGE BAKERIES, INC., Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the District of Maine _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT ______________________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 TABLE OF CONTENTS Pages TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 ISSUES PRESENTED 2 STATEMENT OF THE CASE 1. Proceedings Below 2 2. Statement of Facts 3 3. Decision Below 8 ARGUMENT I. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT LEPAGE COULD HAVE PROVIDED A REASONABLE ACCOMMODATION FOR REED'S DISABILITY WITHOUT UNDUE HARDSHIP 9 A. The District Court Improperly Placed On The Plaintiff The Burden Of Proving That Her Proposed Accommodation Would Not Unduly Burden Her Employer 9 B. The District Court Erred In Failing To Make An Individualized Determination Regarding The Hardship That Would Be Caused By Plaintiff's Proposed Accommodation 17 II. A REASONABLE JURY COULD FIND THAT PLAINTIFF IS DISABLED BASED ON THE EVIDENCE THAT HER BIPOLAR DISORDER PREVENTS HER FROM SLEEPING FOR DAYS AT A TIME AND CAUSES HER TO LOSE CONTROL IN STRESSFUL SITUATIONS 19 CONCLUSION 27 CERTIFICATE OF COMPLIANCE 28 CERTIFICATE OF SERVICE ADDENDUM Barnett v. USAir, 2000 WL 1468743 (9th Cir. Oct. 4, 2000) (en banc)TABLE OF AUTHORITIES Page(s) CASES Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986) 12 Barnett v. USAir, 2000 WL 1468743 (9th Cir. Oct.4, 2000) (en banc) . 10, 14 15, 18 Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993) 13 Bragdon v. Abbott, 118 S. Ct. 2196 (1998) 13, 26 Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775 (6th Cir. 1998) 24 Colwell v. Suffolk County Police Department, 158 F.3d 635 (2d Cir. 1998) 21, 22 Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998) 21-22, 26 Feliciano v. Rhode Island, 160 F.3d 780 (1st Cir. 1998) 8, 14 Garcia-Ayala v. Lederle Parenterals, 212 F.3d 638 (1st Cir. 2000) 16, 17, 18 Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998) 23-24 Kennedy v. Dresser Rand Co., 193 F.3d 120 (2d Cir. 1999), cert. denied, 120 S. Ct. 1244 (2000) 17 McAlinden v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999) (as amended), cert. denied, 120 S. Ct. 2689 (2000) 21, 23 Monette v. Electronic Data System Corp., 90 F.3d 1173 (6th Cir. 1996) 13 Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000) 24 Pack v. KMart Corp., 166 F.3d 1300 (10th Cir. 1999), cert. denied, 120 S. Ct. 45 (2000) 21, 22 Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1 (1st Cir. 1999) 24 Reil v. Electronic Data System Corp., 99 F.3d 678 (5th Cir. 1996) 14 Soileau v. Guilford of Maine, 105 F.3d 12 (1st Cir. 1997) 25, 26 Sutton v. United Air Lines, 119 S. Ct. 2139 (1999) 20 Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) 21, 24 Torres Vargas v. Santiago Cummings, 149 F.3d 29 (1st Cir. 1998) 16 Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 1995) 13 Ward v. Massachusetts Health Research Institute, 209 F.3d 29 (1st Cir. 2000) 8, 10, 12, 14, 17, 18 Willis v. Conopco, 108 F.3d 282 (11th Cir. 1997) 13-14 STATUTES AND REGULATIONS Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(j) 12-13 Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. passim 42 U.S.C. § 12102(2)(A) 20 42 U.S.C. § 12101(2)(B)-(C) 20 42 U.S.C. § 12111(10) 11 42 U.S.C. § 12112(b)(5)(A) 9, 14 29 C.F.R. § 1630.2(j) 20, 25 29 C.F.R. § 1630.2(p) & App 11 29 C.F.R. App. § 1630.9 11 LEGISLATIVE HISTORY H.R. Rep. No. 485(II), 101 Cong., 2d Sess. (1990), reprinted at 1990 U.S.C.C.A.N. 303 10-11, 12 S. Rep. No. 116, 101 Cong., 1st Sess. (1989) 11 OTHER AUTHORITY EEOC: Reasonable Accommodation and Undue Hardship Under the ADA, 8 FEP Manual (BNA) 405:7601 10, 11, 12 EEOC: Enforcement Guidance on the ADA and Psychiatric Disabilities, 8 FEP Manual (BNA) 405:7461 23IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _____________________ No. 00-1966 _____________________ MANUELLA DIONISIO REED, Plaintiff-Appellant, v. LEPAGE BAKERIES, INC., Defendant-Appellee. ____________________________________________________ On Appeal from the United States District Court for the District of Maine ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF _____________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency authorized by Congress to administer, interpret and enforce Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"). This case raises important questions concerning the burdens of proof applicable to an ADA reasonable accommodation suit and the meaning of the term "reasonable accommodation." We believe the district court imposed an unduly heavy burden on the plaintiff which would, if applied generally, frustrate the ADA's reasonable accommodation requirement. Accordingly, we offer our views to the Court. ISSUES PRESENTED 1. Whether the district court erred in holding that the plaintiff must show that a proposed accommodation would not unreasonably burden the employer. 2. Whether a jury could find that plaintiff's bipolar disorder is a disability covered by the ADA where, despite treatment, she sometimes goes for days without sleeping and, in stressful situations, loses control and becomes verbally abusive towards others, after which she sinks into a depression and may try to hurt herself. STATEMENT OF THE CASE 1. Proceedings Below This is an appeal from a final judgment dismissing this action. Plaintiff alleges that defendant violated the ADA by failing to provide a reasonable accommodation for her disability and by firing her because of her disability. Defendant moved for summary judgment, arguing, inter alia, that plaintiff was not disabled, that plaintiff was not prevented from exercising her accommodation and that her proposed accommodation was unreasonable. A magistrate recommended that summary judgment be denied on plaintiff's reasonable accommodation claim. District court docket number ("R") 21. The district court disagreed with the magistrate and granted defendant's motion for summary judgment, holding that plaintiff failed to show that her proposed accommodation was "reasonable". R.31 ("Order"). Final judgment was entered on July 6, 2000. R.32. 2. Statement of Facts Manuella Reed worked as a production employee for LePage Bakeries, a large commercial baking company, from 1987 until she was fired in June 1996, for "insubordination and threatening." Appendix("JA")174 (Reed). Reed has been diagnosed inter alia with bipolar disorder, a condition characterized by "exaggerated mood swings" ranging between "serious disabling depression" and "excitement, agitated hostility, [and/or] loss of temper control." JA313-14 (Bredenberg) (noting that Reed's symptoms include depression, "rage episodes, difficulty controlling anger and . . . impulses to cut herself"). Reed began receiving treatment for this disorder in about October 1994. In December 1994 and again in January 1995, she was hospitalized after attempting suicide. JA176-80 (Reed). She now sees a therapist and doctor regularly. She also takes several types of medication, which must be carefully monitored. JA315-18 (Bredenberg). Her doctor testified that, when he saw her, she was usually having difficulty with mood swings and/or side effects of medication. Id. When properly adjusted, the medication helps control the symptoms but does not cure or correct the disorder. See JA317-19 (Bredenberg) (describing symptoms); JA150 (Reed) ("Medication can only help you control the situation. It can't prevent you from doing everything."). Even with treatment, Reed continues to have bouts of sleeplessness, especially when she is under stress. Reed may go without sleep for several days, and her life becomes "total chaos." JA191-94 (Reed)("I just don't sleep"). See also JA95 (Bredenberg) ("classically when a person is manic, their sleep deteriorates"). Reed testified that she takes a sleeping pill if she has not slept in 48 hours. She dislikes the pills, however, because they make her feel "crappy" in the morning and she cannot drive, work or otherwise function effectively. See JA191-94 (Reed). Cf. JA94-95 (Bredenberg) (sleeplessness could be caused by medication, disorder or both). In addition, Reed has difficulty relating to people. She is afraid to show her feelings because she perceives that people dislike her or are talking behind her back. JA186-89 (Reed). When placed in a stressful situation, she may fly into a "blind rage," swearing and verbally abusing other people. JA169, 176-84, 195 (Reed) ("I'll go into a rage and a few minutes later, I'll calm down. It doesn't usually last long. The medication helps me a lot."); cf. JA320 (Bredenberg) ("Having an intense-feeling atmosphere, pressure cooker type situations would be difficult for her"). When the rage passes, she typically experiences strong feelings of guilt and becomes severely depressed. In that state she has suicidal thoughts and has injured herself -- by induced vomiting, cutting herself with a razor, or, on a few occasions, attempting suicide. JA176-84, 195 (Reed); JA290 (Stuart) ("she has on a number of times become self-destructive"); JA298-301 (therapist notes). The first time Reed had such an episode at work was in March 1995, when she was told that a malfunctioning muffin-bagging machine could not be fixed during her shift. Reed got very upset and swore at the repairman, accusing him of incompetence in front of her supervisor and his. JA44 (Norton). Although she was not disciplined for this incident, Reed became suicidal and had to be hospitalized for five days. JA57-58 (Reed). On her release, her therapist recommended that she request, as a reasonable accommodation, that her employer allow her to walk away when she felt herself losing control during a potentially explosive situation. JA59, 196 (Reed) (accommodation would be used "if it was going to become a very bad situation"). Even a short break would be sufficient to allow her to cool down and avoid a scene. See JA297 (Stuart) ("when [Reed] was able to have a short period of time to collect herself, she was able to maintain control and deal with those issues"). Accordingly, Reed testified, she explained her "mental illness" and this request for accommodation to a human resources employee and Plant Manager Michael Pelletier, who both agreed to the condition. See, e.g., JA60 (Reed) (adding that Pelletier himself suggested that she "walk away" if she had difficulty dealing with a particular situation). Reed offered to bring a doctor's note, but was told this was unnecessary. Pelletier and Reed met with Reed's supervisor, Jerry Norton, to explain the accommodation. See JA58-60, 62-64 (Reed). In early 1996, Reed went out on leave with a work-related injury. On May 30, Cindi Haven, a human resources employee, called Reed at home and informed her that a light-duty position which was within her medical restrictions was available on the afternoon shift, beginning Saturday, June 1. Haven stated that, if Reed did not accept the job, it would be considered a "refusal to work," jeopardizing her worker's compensation benefits. See JA210 (Haven), 226 (note). Reed agreed to arrive a half-hour before the Saturday shift to discuss her restrictions with Haven and Norton. She added that, because she did not have child care on weekday afternoons, she would normally need to work the early shift. According to Reed, Haven indicated that they could discuss the schedule at the meeting. JA158. On her way into the Saturday meeting, Reed met a coworker who agreed to trade shifts so that Reed could work in the mornings. Upon entering Haven's office, Reed attempted to explain this arrangement. JA156 (Reed); JA211, 214 (Haven). Haven responded that they were there to go over Reed's restrictions, not discuss the schedule. Reed continued to insist on discussing the schedule, whereupon Haven told her she was not authorized to make schedule changes. When Reed pressed the issue, Haven acknowledged that she had the authority, but told Reed she could not trade shifts. Realizing that she was becoming "really, really angry," Reed said, "Fuck this," and put her hand on the door knob, intending to leave the room and cool off. JA156-60 (Reed). Haven, however, warned her that if she left she would not be able to work. JA124, 215 (Haven) ("I said Ella, if you leave the office I want you to understand that . . . I would consider that refusing to work"); JA259 (Norton) ("Cindi said, 'Ella, don't leave'"). Reed asked if Haven was firing her. Haven said no, and Reed responded that if she was fired, she would sue. According to Reed, Haven then said, "Now you listen to me," whereupon Reed, feeling "trapped," "lost it" and shouted "Fuck you." JA162-66). After further heated exchange, Haven called the head of personnel, Anthony Nedik, who told her to have Norton escort Reed from the building. Reed and Norton then left Haven's office. It is undisputed that Reed never physically threatened either Haven or Norton and that she left Haven's office voluntarily. See JA217, 221-22 (Haven) (Reed threatened to sue); JA262 (Norton); JA217 (Reed). Reed went to Nedik's office, which was in another building, and explained that she had a mental illness and had lost control after being denied her accommodation. JA172 (Reed) ("I wanted to make it very clear to him . . . that I did try to use my accommodation, that I did have a mental illness and that I did try to do the right thing."). Reed then went home, stopping at Haven's office on the way out to apologize. On Monday, Nedik informed her that she was fired for "insubordination and threatening." JA173-75 (Reed). The discharge was confirmed by letter a few days later. 3. Decision Below According to the district court, the issue presented was whether walking away from and not listening to a supervisor was a reasonable accommodation for Reed's disability. Order at 5. Underlying that issue, the court added, was the question of "the extent of Reed's burden." Id. Noting that circuits are divided on "whether the employee or the employer bears the burden of demonstrating that a proposed accommodation is . . . reasonable," the court characterized this Court's precedent as "confusing." Id. at 5-8 (discussing Feliciano v. Rhode Island, 160 F.3d 780 (1st Cir. 1998), and Ward v. Massachusetts Health Research Inst., 209 F.3d 29 (1st Cir. 2000)). The court concluded that plaintiffs in this circuit normally must "put forward some evidence" that a proposed accommodation both exists and is reasonable. Order at 8-9 (adding that such evidence was not required in Ward due to specific circumstances in that case). Turning to this case, the court noted that Reed's only evidence of reasonableness was the fact that defendant "commonly advised employees to walk away from conflict situations." Order at 10. However, the court concluded that this rule did not apply to conflicts with "supervisors," Order at 4, and that Reed had not presented any evidence that it was "reasonable or plausible to permit her to walk away from her supervisors." Id. at 11. The court opined that, in its view, "[a]llowing an employee to decide when to ignore her supervisors" would "arguably" be "unreasonable per se" -- "like tolerating criminal conduct or actual threats to the safety of self or others," it "would raise a host of concerns over worker safety, let alone the operation of an efficient workplace." Id. at 11 n.7. The court concluded, however, that it need not "decide that allowing employees to walk away from their supervisors is per se unreasonable" in light of its determination that Reed did not meet her burden of showing reasonableness. Id. ARGUMENT I. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT LEPAGE COULD HAVE PROVIDED A REASONABLE ACCOMMODATION FOR REED'S DISABILITY WITHOUT UNDUE HARDSHIP A. The District Court Improperly Placed On The Plaintiff The Burden Of Proving That Her Proposed Accommodation Would Not Unduly Burden Her Employer. Reed claims that LePage violated the ADA by failing to provide a reasonable accommodation for her mental disability. The ADA obligates employers to "mak[e] reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability," unless the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business." 42 U.S.C. § 12112(b)(5)(A). The district court granted summary judgment on this claim because, according to the court, Reed failed to produce evidence that it was "reasonable or plausible to permit her to walk away from her supervisors." Order at 11. It is clear from its decision that the court erroneously placed on the plaintiff the burden of establishing not only that her proposed accommodation would work, but that it would not be unduly burdensome on her employer. Because the ADA places the burden of establishing undue hardship on the employer, LePage must demonstrate that Reed's requested accommodation would cause unreasonable hardship on the company's operation. Reed was not required to prove the negative. The phrase "reasonable accommodation" is a term of art which, in the context of job performance, refers to a change in the work or work environment that enables an individual with a disability to do the job. See Ward v. Massachusetts Health Research Inst., 209 F.3d 29, 36 (1st Cir. 2000); EEOC: Reasonable Accommodation & Undue Hardship Under the ADA, 8 FEP Manual (BNA) 405:7601, 7603 ("Reasonable Accommodation Guidance")<1>. Thus, "in assessing reasonable accommodation, the primary focus is on whether the accommodation effectively allows a disabled employee to successfully perform the job." Barnett v. USAir, 2000 WL 1468743, at *6 n.4 (9th Cir. Oct. 4, 2000) (en banc); id. at *14 ("[a]n accommodation is reasonable if it will work for the employee") (Gould, J., concurring) (attached in Addendum). See also H.R. Rep. No. 485(II), 101 Cong., 2d Sess. 66-67 ("House Report") ("reasonableness" should be assessed "in terms of effectiveness and equal opportunity," considering "the reliability of the accommodation and whether it can be provided in a timely manner"), reprinted at 1990 U.S.C.C.A.N. 303, 348-49; accord S. Rep. No. 116, 101 Cong., 1st Sess. 35 (1989). Although the difficulty or expense of a particular accommodation is relevant in determining the scope of the employer's accommodation duty, these factors relate to the question of undue hardship, on which the employer has the burden of proof. "The term 'undue hardship' means an action requiring significant difficulty or expense" in view of factors such as "the nature and cost of the accommodation" and its impact on the overall operation of the business. See 42 U.S.C. § 12111(10); see also, e.g., 29 C.F.R. § 1630.2(p) & App.; Reasonable Accommodation Guidance, 8 FEP Manual (BNA) at 405:7604 (ADA addresses "quantitative, financial [and] other limitations" on employer's accommodation duty only under undue hardship rubric). Thus, an employer need not provide a particular accommodation if it can show that the accommodation, however effective, would impose "significant difficulty or expense" on its business. Undue hardship is not the only limit on the employer's accommodation duty. An employer likewise need not provide the "best accommodation possible" or even the one the plaintiff would prefer if other effective accommodations are available. See 29 C.F.R. App. § 1630.9. Rather, the employer is free to choose one that is easier or less expensive as long as it "meet[s] the job-related needs" of the person being accommodated. Id.; accord Reasonable Accommodation Guidance, 8 FEP Manual at 405:7610; see also House Report at 67 (employee's "expressed choice" should "be given primary consideration unless another effective accommodation exists" or requested accommodation would pose an undue hardship). Accordingly, in this case, Reed has the burden of establishing that there is an accommodation which would work, i.e., permit her to meet her employer's legitimate performance expectations. Once she does so, the employer, to avoid liability, must prove either that it offered an effective accommodation or that any effective accommodation would result in undue hardship. See Ward, 209 F.3d at 36 (if proposed accommodation is effective and not per se unreasonable, employer must submit some evidence that requested accommodation would impose undue hardship). This is how the Supreme Court has interpreted the parallel provision in Title VII requiring that employees' religious observances or practices be "reasonably accommodated" unless the employer can demonstrate "undue hardship," 42 U.S.C. § 2000e(j). Under Title VII, a reasonable accommodation is one that "eliminates the conflict between employment requirements and religious practices." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986) (adding that employer need not provide plaintiff's preferred accommodation if proffered one resolves religious conflict). The burden and expense of such accommodation are considered only in the analysis of undue hardship, as to which the employer bears the burden of proof. See generally id. at 68-70. Since Congress was presumptively aware of this interpretation of Title VII when it drafted the ADA, this Court should construe the two provisions consistently. See Bragdon v. Abbott, 118 S. Ct. 2196, 2208 (1998) ("When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, Congress' intent to incorporate [such] interpretations as well.") (citing Lorillard v. Pons, 434 U.S. 575, 580-581 (1977)). We are aware that several courts of appeals have stated, without analysis of the statutory structure or the Title VII model, that the plaintiff must make some showing, as part of her burden of establishing that she can do the job with reasonable accommodation, that it does not unreasonably burden the employer. See, e.g., Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 542-43 (7th Cir. 1995) ("employee must show that the accommodation is reasonable in the sense both of efficacious and of proportional to costs"); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir. 1996) (accommodation must be "objectively reasonable," citing Vande Zande). Other courts have redefined the statutory terms, holding that "a reasonable accommodation is one employing a method of accommodation that is reasonable in the run of cases whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiff's preferred accommodation in the context of the particular agency's operations." Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993) (Rehabilitation Act case); accord Willis v. Conopco, 108 F.3d 282, 286-87 (11th Cir. 1997); Reil v. Electronic Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996). Both approaches are flawed and should be rejected. Because the evidence concerning whether an accommodation unreasonably burdens an employer is by its nature congruent with the evidence as to whether it would cause undue hardship, these approaches effectively shift the burden of proof on undue hardship - which Congress expressly placed on the defendant - onto the plaintiff. Furthermore, by construing both "reasonable" and "undue hardship" to include the adverse effects of an accommodation on the employer, these interpretations fail to give meaning to each word in § 102(b)(5)(a) of the ADA. Barnett, 2000 WL 1468743, at *15 ("[t]he statute makes sense only if 'reasonable' refers to the effects of the accommodation on the employee's ability to perform the essential functions of the job and does not include effects of difficulty or expense on the employer") (Gould, J., concurring). This Court has not squarely addressed the question of whether a plaintiff must prove that a proposed accommodation is not unduly burdensome. As the district court noted, language can be found in First Circuit decisions arguably supporting both positions. Order at 6-9 (discussing Feliciano v. Rhode Island, 160 F.3d at 780, 786-87 (1st Cir. 1998), and Ward, 209 F.3d at 36). However, neither of these decisions resolves the question. The district court described the caselaw on this issue as "confusing." In our view, to the extent there is some confusion, it stems from the difficulty "in trying to give meaning to both 'undue hardship' and 'reasonable' if 'reasonable' were to include the same effects on the employer as are considered in 'undue hardship.'" See Barnett, 2000 WL 1468743, at *15 (Gould, J., concurring). We urge the Court to take this opportunity to clarify that an ADA plaintiff bears the burden of establishing that a proposed accommodation would be effective; to avoid liability, the employer must then show that it has offered an effective accommodation or that such accommodation would cause undue hardship. Applying that analysis here, it is clear that the district court erred in granting summary judgment. Reed's bipolar disorder limits her ability to control anger. She proposed that, as a reasonable accommodation, she be allowed to walk away for a short time when she feels herself losing control, before returning to resolve the problem. There is evidence that this accommodation would be effective. Reed testified that her therapist recommended it. JA151. She also testified that she can regain control of herself in a comparatively short time. JA169; see also JA297 (Stuart). Indeed, very soon after leaving Haven's office, Reed was able to discuss the situation with Nedik and, thereafter, stopped to apologize to Haven. In addition, Norton testified that it would have taken only 5 or 10 minutes to go over the job and her restrictions. JA257-58. In light of this evidence, a jury could find that, if Reed had been allowed to leave the room before she lost control, she could have returned to finish the meeting in time to start the shift. The court accordingly should have turned to the question of whether providing this accommodation would have caused undue hardship to LePage. Because the company bore the burden of proof on this issue, Garcia-Ayala v. Lederle Parenterals, 212 F.3d 638, 649 (1st Cir. 2000), it was entitled to summary judgment only if the evidence conclusively establishes undue hardship. See Torres Vargas v. Santiago Cummings, 149 F.3d 29, 36 (1st Cir. 1998) (party with burden of proof on dispositive issue "cannot attain summary judgment unless the evidence that he provides on that issue is conclusive"). LePage cannot meet this standard. Indeed, the company never alleged undue hardship in the district court; instead it took the factually indefensible position that Reed was not prevented from leaving the return-to-work meeting.<2> Defendant itself also encourages employees to walk away from conflicts, at least where coworkers are involved. See JA153 (Reed) (Pelletier suggested that she walk away if she was having difficulties). On this record, LePage has, at best, established a factual dispute on the question of undue hardship. It was not entitled to summary judgment. B. The District Court Erred In Failing To Make An Individualized Determination Regarding The Hardship That Would Be Caused by Plaintiff's Proposed Accommodation. The district court compounded its error by failing to base its decision regarding hardship on an evaluation of the specific accommodation requested and the particular circumstances in which it arose. Instead, the court treated the proposal in categorical terms and found hardship based on hypotheses that have no bearing on the facts of this case. This Court and others have repeatedly rejected this sort of categorical approach as incompatible with the "individualized assessment of the facts" that the ADA and caselaw require. See Garcia-Ayala, 212 F.3d at 647; see also id. at 650 ("These are difficult, fact intensive, case-by-case analyses, ill-served by per se rules or stereotypes."); Ward, 209 F.3d at 36 (declining to hold that flexible schedule was per se unreasonable); see also Barnett, 2000 WL 1468743, at *12 (rejecting per se rule barring reassignments because of conflict with employer-created seniority system); Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2d Cir. 1999) ("per se rule stating that replacement of a supervisor can never be a reasonable accommodation is . . . inconsistent" with ADA's case-by-case approach), cert. denied, 120 S. Ct. 1244 (2000). In Garcia-Ayala, this Court rejected the district court's suggestion that the proposed accommodation -- extending leave beyond that normally allowed under defendant's leave policy, without a guaranteed return date -- was unreasonable per se. Reasoning that the "Supreme Court has deemed 'essential' individualized attention to disability claims," the Court stressed that "each case must be scrutinized on its own facts." Id. at 647-48. The Court determined, therefore, that whether defendant should have granted this particular request for leave must be evaluated on a case-by-case basis, considering defendant's evidence of undue hardship. Id. ("an unvarying requirement for definiteness . . . departs from the need for individual factual evaluation."); see also Ward, 209 F.3d at 36-37 (applying case-by-case analysis and reversing summary judgment where employer produced no undue hardship evidence). The district court's approach in this case suffers from the same flaw. The court began by stating Reed's accommodation request in categorical terms, as a request that she be allowed to walk away from and not listen to supervisors when she felt stressed. The court then opined that such an accommodation may be per se unreasonable because "[a]llowing an employee to decide when to ignore her supervisors -- like tolerating criminal conduct or actual threats to the safety of self or others -- would raise a host of concerns over worker safety, let alone the operation of an efficient workplace." Order at 11 n.7. But the court should have focused on the particular circumstances of this case. Based on the evidence, a jury could reasonably find that the company could have allowed Reed to walk away temporarily, without incurring undue hardship. There was no safety threat or other emergency.<3> Rather, this was simply a return-to-work meeting convened to go over work restrictions that the parties were familiar with and a job that Reed had done before. LePage has produced no evidence of undue hardship. Under these circumstances, the company is not entitled to summary judgment. Under the district court's approach, in order for Reed to prove that LePage could have permitted her to take a time-out from this meeting to regain control of herself without undue hardship, she must prove that allowing her to walk away from stressful meetings with supervisors would never cause undue hardship. This was not only contrary to the case-by-case approach required in ADA actions but also manifestly unfair. II. A REASONABLE JURY COULD FIND THAT PLAINTIFF IS DISABLED BASED ON THE EVIDENCE THAT HER BIPOLAR DISORDER PREVENTS HER FROM SLEEPING FOR DAYS AT A TIME AND CAUSES HER TO LOSE CONTROL IN STRESSFUL SITUATIONS. LePage may argue, as it did below, that this action should be dismissed because Reed does not have a disability within the meaning of the ADA. The district court did not address this argument and this Court should reject it because Reed presented sufficient evidence of disability to support a finding that she is covered by the ADA. The ADA protects an otherwise qualified individual who has a "physical or mental impairment" that "substantially limits" one or more "major life activities." 42 U.S.C. § 12102(2)(A).<4> An individual is "substantially limited" within the meaning of the statute if she is "significantly restricted as to the condition, manner or duration" under which she can perform a particular major life activity compared to "an average person in the general population." 29 C.F.R. § 1630.2(j). The effects, both positive and negative, of any treatment the individual actually receives should be considered in this assessment. Sutton v. United Air Lines, 119 S. Ct. 2139, 2146 (1999). Reed has been diagnosed with bipolar disorder, a chronic condition characterized by "exaggerated mood swings" ranging between "serious, disabling depression" and "excitement, agitation hostility, [and/or] loss of temper control." JA313-14. She has been hospitalized three times, in December 1994, January 1995 and March 1995, and sees a therapist and medical doctor regularly for this disorder. She also takes mood stabilizing drugs, including lithium, which help moderate her symptoms but do not correct or cure the disorder. These drugs require constant monitoring and adjustment since lithium, for example, "has a very narrow therapeutic range, and blood levels of the drug can fluctuate for a variety of reasons." See Taylor v. Phoenixville School Dist., 184 F.3d 296, 308 (3d Cir. 1999). LePage did not dispute below that Reed has a mental impairment, but argued that she cannot establish that this impairment substantially limits any major life activity. Reed contends that she is substantially limited in her ability to sleep and interact with others. In our view, the evidence would support such a finding.<5> Courts have consistently recognized that sleeping is a major life activity. See, e.g., McAlinden v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir. 1999) ("common sense suggests that sleeping is . . . a major life activity") (as amended), cert. denied, 120 S. Ct. 2689 (2000); Pack v. KMart Corp., 166 F.3d 1300, 1304 (10th Cir. 1999) ("sleeping is a major life activity"), cert. denied, 120 S. Ct. 45 (2000); Colwell v. Suffolk County Police Dept., 158 F.3d 635, 643 (2d Cir. 1998) (sleeping is "undoubtedly a major life activity"); see also Criado v. IBM Corp., 145 F.3d 437, 442 (1st Cir. 1998) (plaintiff's evidence showed that she was substantially limited in sleeping). The record here reflects that, due to her mental disorder, Reed sometimes cannot sleep for days at a time. Her doctor confirmed that sleeplessness is a "classic" symptom of bipolar disorder. JA95 (Bredenberg). Reed testified that, especially when she is under stress, she goes up to 48 hours without sleeping at all, and she can sleep at that point only with medication. JA193-94. She explained that she takes the medication, although she cannot drive, work or otherwise function effectively the morning after she takes it, because, without sleep, her life will be "total chaos." JA191-94. The sleep disruptions caused by Reed's impairment are much more severe than those which have been held by other courts to be inadequate to constitute a disability. Compare Pack, 166 F.3d at 1306 (no substantial limitation where plaintiff "sometimes" woke up crying and then could not get back to sleep for several hours; other times she would sleep only a few hours); Colwell, 158 F.3d at 644 (no substantial limitation where plaintiff testified he took medication as "sleep aid" and usually got "a tough night's sleep"). By contrast, the evidence in this case is sufficient to support a finding that Reed is substantially limited in sleeping. As for interacting with others, that also "falls easily within the definition of 'major life activity'" in that it "is an essential, regular function, like walking and breathing." McAlinden, 201 F.3d at 1234-35; EEOC: Enforcement Guidance on the ADA & Psychiatric Disabilities, 8 FEP Manual (BNA) 405:7461, 7463.<6> Once again, the evidence would support a finding that Reed is substantially limited in this activity due to her bipolar disorder. Exaggerated mood swings like Reed experiences are symptomatic of the disorder. JA313-14 (Bredenberg). In Reed's case, these mood swings are partially controlled but not eliminated with treatment. If she is "pushed" or "feels cornered," she may go into a "blind rage" and become verbally abusive toward other people, unless she can escape temporarily and cool off. After the rage passes, she becomes depressed and may try to hurt herself -- contemplating suicide, cutting herself with a razor, and/or inducing vomiting. It is undisputed that Reed had two such episodes at work in 1995 and 1996; there is also evidence that others occurred outside the workplace. The fact that Reed only experiences this manifestation of her disorder periodically does not mean that it is not a substantial limitation. In Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 600 (7th Cir. 1998), the plaintiff was terminated for performance problems when she was experiencing "episodic manifestations characteristic of lupus," a condition which was usually dormant. The Seventh Circuit rejected the employer's argument that her condition was not a disability because it usually caused no symptoms, reasoning that "often the disabling aspect of a disability is, precisely, an intermittent manifestation of the disability, rather than the underlying impairment." Id. Cf. Taylor, 184 F.3d at 309 ("Chronic, episodic conditions can easily limit how well a person performs an activity as compared to the rest of the population: repeated flare-ups of poor health can have a cumulative weight that wears down a person's resolve and continually breaks apart longer-term projects.").<7> Similarly, here, a jury could find that Reed's intermittent mood swings between blind rage and severe depression are "episodic manifestations" characteristic of her bipolar disorder. Moreover, one such swing led directly to her termination. Under these circumstances, a jury could find that Reed is disabled within the meaning of the ADA.<8> In the district court, LePage noted that, in Soileau v. Guilford of Maine, 105 F.3d 12, 15 (1st Cir. 1997), this Court questioned whether the "ability to get along with others" is a major life activity. In Soileau, the plaintiff had a form of depression that recurred twice in a four-year period, once after he broke up with a girlfriend and once after criticism from his supervisor alerted him that his job was in jeopardy. The Court expressed concern that the "ability to get along with others" is "remarkably elastic" and "subjective," adding that it might be "problematic" to "impose legally enforceable duties on an employer based on such an amorphous concept." See id. at 15-17. The Court, however, did not base its decision in Soileau on this concern, but rather held that plaintiff failed to show a substantial limitation since he had shown no "particular difficulty" interacting with anyone besides his supervisor. Id. at 15-16. In a later decision, this Court acknowledged that interacting with others is a major life activity. See Criado, 145 F.3d at 442 (plaintiff's mental impairment substantially limited her ability to "relate to others"); cf. Soileau, 105 F.3d at 15 (suggesting that "a more narrowly defined concept going to essential attributes of human communication could, in a particular setting, be understood to be a major life activity"). Moreover, Soileau was decided before the Supreme Court construed the term "major life activity" in Bragdon, 118 S. Ct. at 2205. In holding that reproduction is a major life activity, the Court clarified that "'major' denotes comparative importance and 'suggests that the touchstone for determining an activity's inclusion under the statutory rubric is its significance." Id. Since interacting with others is no less important or significant than reproduction or the activities listed in the statute, it should be considered a major life activity under the ADA.<9> Accordingly, this Court should reject LePage's argument that there is insufficient evidence to support a finding that Reed has a disability within the meaning of the ADA, should the company renew that argument on appeal. The case should therefore be reversed and remanded for further proceedings. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case should be remanded to the district court for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE I certify that the textual portion of this brief was prepared in monospaced (nonproportionally-spaced) typeface using Courier New 12 point font, and that, exclusive of the exempted portions, contains 6307 words, as determined by the Corel Word Perfect 8 word counting program. _______________________ Barbara L. Sloan CERTIFICATE OF SERVICE I, Barbara L. Sloan, hereby certify that two copies of the Commission's Brief as Amicus Curiae were sent this 23rd day of October, 2000, by first class mail, postage prepaid, to: John R. Lemieux LAW OFFICE OF JOHN LEMIEUX 14 Church Road P.O. Box 68 Readfield, ME 04355 Peter Bennett Frederick B. Finberg BENNETT BENNETT & TROIANO, P.A. 121 Middle Street, P.O. Box 7799 Portland, ME 04112-7799 _______________________ Barbara L. Sloan Barnett v. USAir, 2000 WL 1468743 (9th Cir. Oct. 4, 2000) (en banc) ADDENDUM 1 This document is available on EEOC's website at http://www.eeoc.gov/docs/accommodation.html. 2 Defendant's principal argument below was that Reed was terminated for misconduct and she cannot show that this reason was a pretext for disability discrimination. However, to the extent Reed alleges failure to accommodate, this argument is beside the point. Reed contends that her behavior flows directly from her disability and that she would not have acted up if she had been allowed to leave, in accordance with her proposed accommodation. 3 Although the stated reasons for Reed's termination were "insubordination and threatening," JA174, there is no evidence that Reed made any physical threats. On the contrary, Norton acknowledged that he did not fear for his own or Haven's safety, and Haven conceded that Reed threatened only to sue if she were terminated. Accordingly, there were no safety concerns in the context of this meeting. 4 The statute also protects individuals who are regarded as, or have a record of, such an impairment. 42 U.S.C. § 12101(2)(B)-(C). Reed argues that she actually has a substantially limiting impairment. 5 In addition, since the disorder and medication affect her thought processes and cause her to try to hurt herself, a jury could find that Reed is substantially limited in her ability to think and care for herself. See, e.g., Taylor, 184 F.3d at 307-08 (jury could find that plaintiff with bipolar disorder is substantially limited in thinking). 6 This document is also available on EEOC's website at http://www.eeoc.gov/docs/psych.html. 7 See also Otting v. J.C. Penney Co., 223 F.3d 704, 708-11 (8th Cir. 2000) (salesclerk with epilepsy that was only partially controlled with medication was disabled where she was totally incapacitated during seizures, and possibility of recurrence precluded activities such as driving and bathing); Taylor, 184 F.3d at 309 (secretary with bipolar disorder that was partially controlled by medication was disabled, in light of need for careful monitoring of medication, nausea resulting from medication, continued residual paranoia as well as difficulty thinking and concentrating); Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 10 (1st Cir. 1999) (plaintiff was disabled where doctor testified that her "carpal nerve irritation was both recurrent and permanent," limiting her ability to lift safely); Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 781 (6th Cir. 1998) (nurse with pustular psoriasis was disabled where condition was partially controlled with medication but subject to incapacitating flare-ups, and caused pain, periodic loss of hair and nails, and skin irritation). 8 Defendant argued that Reed cannot show a substantial limitation because two months before her termination, her medical records suggest that she "was doing pretty well" as compared with other people "with similar psychiatric diagnoses." A jury could find that she nevertheless has a disability. As noted above, the proper comparator is an "average person in the general population." See 29 C.F.R. § 1630.2(j). Moreover, the doctor commented that this was "actually a fairly unusual entry"; in the 3 ½ years he had been treating Reed she would more typically be having trouble either with mood swings or with side-effects of the medication. JA93. Indeed, she was fired shortly after this "unusual entry" for typical manic behavior. 9 Defendant suggested below that, if Reed were considered disabled, anyone with a bad temper would have a claim. This trivializes her condition. Reed, unlike most people with temper problems, has a psychiatric disorder that significantly restricts her ability to control her anger. This is true even though she takes several kinds of potentially toxic mood stabilizers which require constant monitoring and adjustment. Reed's rages further differ from mere bad temper because they are followed by a severe depression that far exceeds the remorse an average person experiences after a loss of temper.