Equal Employment Opportuntiy Commission v. Sara Lee Corporation 00-1534 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-1534 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. SARA LEE CORPORATION, Defendant-Appellee. On Appeal from the United States District Court for the District of South Carolina BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION This is a public enforcement action brought by the Equal Employment Opportunity Commission ("Commission") under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). The district court had jurisdiction of the case under 28 U.S.C. §§ 1331 and 1345. Final judgment was entered in the district court on February 25, 2000, disposing of all claims with respect to all parties. Joint Appendix ("J.A.") at 335. The Commission filed a timely notice of appeal on April 20, 2000. J.A. at 363; see F.R.A.P. 4(a)(1). This Court has jurisdiction of the district court's final judgment under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court erred in ruling, as a matter of law, that the charging party's epilepsy, which resulted in substantial daytime and nocturnal seizure activity, was not an actual disability within the meaning of the ADA. 2. Whether the district court erred in ruling that the charging party's proposed accommodation of staying in her first shift position was unreasonable as a matter of law because it conflicted with the defendant's seniority policy, where that policy was self-imposed and subject to modification or adjustment at the defendant's discretion. 3. Whether the district court erred in ruling that the defendant satisfied its duty of reasonable accommodation by providing the charging party with only those options made available under a rote application of the defendant's self-imposed seniority policy, options that did not take into account the precise limitations imposed by the charging party's disability. STATEMENT OF THE CASE 1. Nature of the Case This case involves a claim of disability discrimination under the ADA brought against Sara Lee Corporation ("Sara Lee"). The Commission is suing at the behest of a charging party, Vanessa Turpin, who worked for Sara Lee until May 1997, when she was denied an accommodation that would have allowed her to continue working in her position. The district court granted summary judgment in favor of Sara Lee, holding that the Commission's evidence was insufficient to support a finding that Turpin had a covered disability within the meaning of the ADA. The court also held, as a matter of law, that Sara Lee did not default on its obligation to provide a reasonable accommodation to Turpin. 2. Course of Proceedings The Commission initiated this action in February 1999. J.A. at 4. Sara Lee moved for summary judgment in December 1999. Id. at 18. By order dated February 23, 2000, the district court granted summary judgment in favor of Sara Lee. Id. at 336. The district court entered judgment on February 25, 2000. Id. at 335. 3. Statement of Facts a. Vanessa Turpin began working for Sara Lee in September 1989, at its Salem, Virginia, factory. J.A. at 339-40. In 1992, three years into her employment with Sara Lee, Turpin began experiencing seizures in her sleep. Id. at 336. During one of her initial episodes, Turpin woke up on the floor with paramedics "standing over the top of [her]." Id. at 58-59. Turpin consulted a neurologist, who prescribed Dilantin, an anti-seizure medication. Id. at 336. Despite the medication, Turpin continued to experience nocturnal seizures. Id. at 336-37. Turpin's seizures grew worse over time. By 1997,<1> Turpin was experiencing nocturnal seizures on a regular basis. Id. at 337. These seizures were characterized by shaking, kicking, salivating, and bedwetting. Id. Turpin would sometimes bite her tongue during the nighttime seizures, causing eating and drinking problems the next day. Id. Turpin was typically unaware of the fact that she was experiencing a nocturnal seizure, but the seizures were witnessed by her husband. Id. Turpin, moreover, felt the effects of the seizures. After having nocturnal seizures, Turpin would feel tired in the morning, as if she had never slept at all. Id. Turpin would sometimes awaken, after a nocturnal seizure, to find her bed covers tossed onto the floor and her arm or leg bruised. Id. Turpin also began experiencing daytime seizures. Turpin experienced numerous daytime seizures in 1997,<2> including 4 or 5 episodes while at work. Id. at 337. Turpin was able to sense that a daytime seizure was about to happen. Id. at 338. Turpin would go off to sit elsewhere until the seizure would pass. Id. During a seizure, Turpin would begin shaking; Turpin's face would take on a blank expression, and she would become completely unaware of, and unresponsive to, her surroundings. Id. The seizures typically lasted for a few minutes. Id. After the seizure, Turpin was able to return to the activity she was performing prior to the seizure. Id. Turpin's seizures also had a residual impact on her ability to concentrate and think. Turpin, for example, experienced regular memory loss and confusion as a result of the seizure activity. Id. at 339. Turpin's memory loss made it difficult for Turpin to remember to take her medication more than once a day. Id. Turpin's memory loss also affected Turpin's ability to perform daily tasks. Id. at 272, 274, 277. Turpin forgot to do simple chores; Turpin would begin driving and then forget where she was going and why she was going there. Id. On one occasion, Turpin got in the car and "started blowing her horn." Id. at 269-70. When asked about the incident, she could not "remember doing it." Id. at 270. On another occasion, Turpin, on a routine visit to see her doctor, forgot how to get to her doctor's office. Id. at 339. Turpin's seizures placed additional burdens on her husband, Benjamin Gethers. Gethers assisted Turpin when she had break downs in her memory. Id. at 272-74, 277-79. Gethers stepped into drive when Turpin sensed that she was going to have a seizure. Id. at 265. Gethers helped Turpin through her nocturnal seizures, waking her up while the seizures were on-going, walking her to the bathroom, and changing the bed (which was often wet with saliva or urine) so that Turpin could go back to sleep. Id. at 261-64. Gethers took steps to ensure that Turpin was not placed in "any kind of situation" likely to increase the risk of a daytime seizure. Id. at 272-73. Turpin was eventually diagnosed with complex partial seizure disorder (epilepsy). Id. at 338. Turpin's neurologist, Dr. Healy, believes that Turpin's seizures will be a "life-long phenomena." Id. at 339. Turpin has on-going seizure activity even though she is taking medication to counter the effects of the impairment. b. In 1996, Sara Lee closed its Salem, Virginia facility. Id. at 340. The company provided employees of that facility with the option of transferring to Sara Lee's Florence, South Carolina facility. Id. Turpin accepted the transfer, working the first shift -- the day shift -- as an Auto Packaging Machine Operator. Id. In the spring of 1997, Sara Lee decided to close its Hartsville, South Carolina plant. Id. Sara Lee offered the Hartsville employees the option of transferring to other facilities. Id. Invoking its internal seniority policy, Sara Lee permitted these employees to displace less senior employees at these other facilities. Id. Most of the more senior Hartsville employees elected to transfer to the Florence plant. Id. at 341. A Hartsville employee, with more seniority than Turpin, was slotted to assume Turpin's first shift position. Id. This meant that Turpin would have to transfer to a second or third shift position, requiring her to work a night shift of some kind. Id. Upon learning that she was to be removed from her first shift position, Turpin contacted her Human Resources manager, Vera Wilson, requesting that she be allowed to remain on the first shift. Id. Turpin presented Wilson with a letter from Turpin's internist, Dr. Ducker. Id. In that letter, dated April 9, 1997, Dr. Ducker stated that, after consulting with Turpin's neurologist, Dr. Healy, it was Dr. Ducker's opinion that Sara Lee should permit Turpin to remain on the first shift because "it is a well known fact that recurrent seizure activity can be precipitated by disturbance of sleep pattern." Id. Wilson showed the letter to Robert Wofford, another Human Resources manager, who, in turn, contacted Sara Lee's Corporate Medical Director, Dr. Egnatz. Id. at 341-42. Dr. Egnatz offered the opinion that the change in shift would not exacerbate Turpin's seizure disorder so long as Turpin worked a non-rotating shift, whether that be the first shift, the second shift, or the third shift. Id. at 342. Dr. Egnatz was not a neurologist. Id. at 312. Dr. Egnatz never examined Turpin, nor was he given any of her "documents or medical records." Id. at 127, 315-16. At no point did Wilson, Wofford, or Dr. Egnatz speak with either Dr. Ducker or Dr. Healy. Id. at 341-42 Sara Lee decided not to provide Turpin with an accommodation. Instead, Sara Lee chose to "stick with the seniority policy," id. at 135, limiting Turpin to the same three options given to any individual being bumped from the first shift by virtue of the seniority policy: (1) move to second or third shift; (2) go on layoff status with recall rights for twelve months (including the right to be recalled to a first shift position should one become available); or (3) take a severance package. Id. at 342. Turpin elected to take the severance package. Id. The record shows that the seniority policy invoked by Sara Lee is not part of a collective bargaining agreement. Id. at 340. The policy, instead, is self-imposed. Id. Under its policy, Sara Lee "reserves the right to make modification changes to the provisions of [the] policy and the inclusive policies involved." Id. at 42. The policy has built-in flexibility, permitting the company to grant exceptions to its seniority rules on a case-by-case basis. Id. at 50 (authorizing the Company-wide Seniority Review Board to deviate from seniority levels with respect to laid off employees seeking an "Interplant Transfer"). Because the policy "was drafted years before the downturn in the hosiery business," it does not "directly address plant closings." Id. at 38. Although the company retains the discretion to apply the policy to plant closings, it has not always done so. When Sara Lee closed its Salem, Virginia plant and moved its operations to Florence, South Carolina, it waived the seniority policy to encourage Salem employees to transfer to Florence, believing this to be in the "best interest" of the company. Id. at 320-21. In this case, Sara Lee chose to apply its seniority policy without adjustment or modification. c. The district court granted Sara Lee's motion for summary judgment in an order dated February 23, 2000. The court first ruled that, "as a matter of law, Turpin did not suffer from a 'disability' pursuant to the ADA's definition during the time period surrounding May 31, 1997." Id. at 354. The court acknowledged that epilepsy constitutes an impairment under the ADA. Id. at 346. The court also recognized that the various life activities identified by the Commission, e.g., sleeping, thinking, and caring for oneself, were "major life activities" within the meaning of the ADA. Id. at 347-48. The court held, however, that Turpin's impairment was not substantially limiting. Focusing first on the major life activity of sleeping, the court reduced the Commission's proof to evidence that Turpin "experienced fitful nights of sleep twice a week, a condition which affects many adults." Id. at 350. The court concluded that, "[o]n the basis of this evidence, the EEOC has failed to show that Turpin's sleeping affliction is any worse than that which a large segment of the nation's adult population suffers from." Id. The court next turned to the major life activity of thinking, including Turpin's abilities to concentrate and remember. Again, the court reduced the Commission's proof to evidence of "a few incidents of forgetfulness a week," concluding that "forgetting things twice or thrice on a weekly basis is not a substantial limitation on one's ability to think, concentrate, or remember things." Id. at 352. Based largely on its finding that "Turpin's epilepsy did not substantially limit her ability to sleep and think," the court also concluded "that the EEOC failed to produce sufficient evidence from which a reasonable jury could find that Turpin's seizures substantially limited her ability to care for herself." Id. at 353. Finally, the court addressed "the EEOC's contention that Turpin experienced an 'altered consciousness' during her daytime seizures, which would interrupt all major life activities, including seeing, hearing, walking, communicating, thinking, concentrating, and caring for herself." Id. On this point, the court stressed that "Turpin's seizures were not major motor or grand mal seizures," that "the daytime seizures would last only a few minutes at most," and that "once the seizure would end, Turpin found herself able to resume whatever activity she had been performing before the seizure occurred." Id. at 353-54. In the court's view, "although it is clear that Turpin's seizures momentarily limited her ability to engage in any activity for the few minutes that her seizure episodes endured," Turpin's "partial seizure episodes were simply too temporary to constitute a substantial limitation on any major life activity." Id. at 354. Having disposed of the disability issue, the court, "for the sake of completing the analysis," also addressed the Commission's argument that it would have been a reasonable accommodation for Sara Lee to "modify its seniority policy of permitting disabled employees from closed-down plants to bump employees with less seniority at another facility," thereby allowing Turpin to remain on first shift. Id. at 354-55. The court ruled, as a matter of law, that "the ADA's reasonable accommodation provision [does not require] an employer to exempt an employee from its seniority policy to the detriment of another employee." Id. at 355-56. The court rejected the Commission's attempt to distinguish this case -- involving a self-imposed seniority policy -- "from the many ADA cases holding that reasonable accommodation does not require modifying a collectively-bargained-for seniority policy." Id. at 357. The court concluded that "[b]ecause the accommodation sought by Turpin would have required Sara Lee to give preference to Turpin and her disability over another employee and her seniority rights by placing the less-senior Turpin on 'equal' footing with a more-senior employee, such requested accommodation was not reasonable, as 'it would convert a nondiscrimination statute into a mandatory preference statute.'" Id. at 358. Alternatively, the court ruled that Sara Lee had satisfied its duty of reasonable accommodation by offering Turpin the options of either working a non-rotating second or third shift or accepting a lay off or severance package. Id. at 361-62. Stressing that "the ADA does not require Sara Lee to offer Turpin an ideal accommodation, but only a reasonable accommodation," the court found that "Sara Lee engaged in a good-faith effort to accommodate Turpin, and indeed offered her a reasonable accommodation, which she declined." Id. The court opined that, despite the contrary advice of her physician, Turpin should have "attempted to adjust her body to a new (and regular) sleeping pattern under the second or third shift." Id. at 362. SUMMARY OF ARGUMENT The district court erred in ruling, as a matter of law, that the Commission's evidence was insufficient to support a finding that Turpin had a covered disability within the meaning of the ADA. In enacting the ADA, Congress assumed that most individuals with epilepsy would meet the ADA's definition of disability. Specifically, Congress assumed that epilepsy was the type of impairment that would impose a substantial limitation on one or more major life activities, at least in those cases where the effects of the impairment were not controlled (or significantly curtailed) by medication. In this case, the evidence shows that Turpin experienced substantial daytime and nocturnal seizure activity, notwithstanding medication that she took to mitigate the effects of her condition. Turpin is incapacitated during her daytime seizures, which can last as long as two minutes. Both the nocturnal and daytime seizures have significant residual effects, limiting Turpin's ability to care for herself, sleep, and think. It cannot be said, as a matter of law, that Turpin's condition does not substantially limit one or more major life activities. The district court also erred in ruling that Turpin's proposed accommodation -- being permitted to stay in her first shift position -- was unreasonable as a matter of law. A number of circuit courts have held that reasonable accommodation does not require modifying a collectively-bargained-for seniority policy. In this case, however, the seniority policy is not part of a collective bargaining agreement. It is a self-imposed policy that, by its terms, is subject to adjustment or exception at Sara Lee's discretion. This is not a case, moreover, where an employee was seeking reassignment to an entirely new position that was otherwise guaranteed to a more senior employee. Instead, Turpin was asking for a relatively minor adjustment in her work schedule, one that would permit her to continue working in a shift that accommodated her disability. Under these circumstances, it was error to hold, as a matter of law, that Turpin's proposed accommodation was unreasonable. Nor was it proper to dismiss the claim of reasonable accommodation on the ground that Sara Lee's offer of one of three options -- a second or third shift position, lay off, or seniority package -- constituted a reasonable accommodation in its own right. By definition, an accommodation is a change in the work environment or in the way things are customarily done, designed to overcome the precise limitations imposed by a disability. The three options offered by Sara Lee were not accommodations within the meaning of the ADA. They were the same options extended to any individual being bumped from the first shift by virtue of the seniority policy. In this case, Sara Lee did not "change" anything; it steadfastly adhered to its self-imposed seniority policy, ignoring the medical opinion of Turpin's physician that moving Turpin to a second or third shift position would exacerbate Turpin's seizures. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN SARA LEE'S FAVOR. A. Standard Of Review This Court reviews a district court's grant of summary judgment de novo, viewing all facts and inferences in the light most favorable to the non-moving party. Providence Square Assocs., L.L.C. v. G.D.F., Inc., 2000 WL 530307, *3 (May 3, 2000). Summary judgment is proper only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id. B. The Commission's Evidence Is Sufficient To Support A Finding That Turpin Has A Disability Within The Meaning Of The ADA The threshold issue raised by this appeal is whether the Commission presented sufficient evidence to support a finding of disability. We believe that there are discrete evidentiary theories -- outlined below -- that support a finding of actual disability in this case.<3> More generally, we believe that the district court's analysis is inconsistent with congressional intent concerning the scope of coverage under the ADA. In enacting the ADA, Congress sought "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Congress specifically found that some 43 million Americans -- nearly 1/5th of the population (at that time) -- were disabled and in need of protection against "various forms of discrimination." 42 U.S.C. § 12101(a)(1)-(5). "Because it is included in the ADA's text, the finding that 43 million individuals are disabled gives content to the ADA's terms, specifically the term 'disability.'" Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 2149 (1999). There are strong indications that Congress viewed individuals with epilepsy as included among the 43 million Americans with a covered disability. Congress derived the figure of 43 million, in large part, from contemporaneous reports on disability status. See id. at 2147-48 (citing, e.g., National Center for Health Statistics, U.S. Dept. of Health and Human Services, Vital and Health Statistics, Current Estimates from the National Health Interview Survey, 1989, Series 10 (1990); National Council on Disability, Toward Independence (1986); National Institute on Disability and Rehabilitation Research, Data on Disability from the National Health Interview Survey 1983-1985 (1988)). Several of these reports identified epilepsy as a disabling condition likely to result in limitations on daily activities. E.g. Current Estimates at 82-105; Toward Independence at 12; Data on Disability at 32-140. The ADA's legislative history is replete with references to epilepsy, reflecting an assumption on Congress' part that epilepsy -- a permanent condition that produces intermittent conscious-altering seizures -- would typically meet the standard for a substantially limiting impairment. S. Rep. No. 101-116, 101st Cong., 1st Sess. 22, 31, 39, 62 (1989) (referencing epilepsy in discussing the protections of the ADA, including the requirement of reasonable accommodation); H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 51, 62, 72, 79-80 105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 333, 345, 355, 362, 388 (same); H.R. Rep. No. 101-485(III), 101st Cong. 2d Sess. 28, 33, 42, 50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 451, 456, 465, 473 (same). The key committee reports make that assumption explicit. See H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 52, reprinted in 1990 U.S.C.C.A.N. at 334 ("impairments . . . such as epilepsy . . . substantially limit a major life activity"); H.R. Rep. No. 485(III), 101st Cong., 2d Sess. 28, reprinted in 1990 U.S.C.C.A.N. at 451 ("epilepsy [is] an impairment which substantially limits a major life activity").<4> Plainly, Congress intended the ADA to protect individuals who endure epilepsy-induced seizures but who, nonetheless, are willing and able to perform work. This is not to say, of course, that epilepsy is some kind of per se disability. There are no per se disabilities under the ADA. In enacting the ADA, Congress did not adopt a laundry list of covered impairments. Congress, instead, adopted a functional test for disability, geared to the impact of an impairment on one or more major life activities. See 42 U.S.C. § 12102(2)(A) (defining disability as a "physical or mental impairment that substantially limits one or more . . . major life activities"). Nonetheless, while the ADA does not contain an itemized list of covered disabilities, Congress understood that some impairments would be sufficiently severe to produce a substantially limiting effect on a major life activity in most (if not all) cases. Epilepsy, where its effects are not controlled (or significantly curtailed) by medication, is the type of impairment that yields a finding of a covered disability under the ADA's functional standard. This, in any event, was Congress' understanding in enacting the ADA. The district court's ruling flies in the face of congressional intent. The district court held that the Commission's evidence was insufficient even to support a finding of a covered disability. The court reached this conclusion despite the evidence that Turpin has a permanent epileptic condition that, even with the mitigating effect of medication, results in substantial daytime and nocturnal seizure activity. Turpin's seizures render her completely unaware of, and unresponsive to, her surroundings and produce significant residual effects on her daily living, affecting, among other things, her ability to think, concentrate, and remember. Turpin is precisely the type of individual for whom Congress intended coverage under the ADA. The district court stressed that Turpin's seizures would last "only a few minutes at most," and that Turpin was able, once the seizure ended, to "resume whatever activity she had been performing before the seizure occurred." J.A. at 353-54. These facts, however, merely explain why Turpin was able to work and function in her daily life, despite the substantial limitations imposed by her condition. One can envision a more severe case of major motor or grand mal seizures, where an individual has regular seizures that are incapacitating for significant periods of time. Yet, in many such cases, the individual will be unable to perform the essential functions of a job, due to the disability, thus placing the individual outside the protections of the ADA. Reduced to its core, the district court's decision imposes a classic Catch-22: an individual with epilepsy who is qualified to work falls outside the protection of the statute because the individual's impairment is not sufficiently severe to constitute a disability; an individual with epilepsy whose impairment is sufficiently severe to constitute a disability falls outside the protection of the statute because the individual's disability renders her unqualified to work. Congress assumed that many individuals with disabilities, with the help of the law, could "participate in, and contribute to, society." 42 U.S.C. § 12101(a)(7). Congress did not intend to create a self-defeating category of coverage, where only those whose impairments are so severe that they are unable to work meet the threshold for a covered disability. See Albertson's, Inc. v. Kirkingburg, 119 S. Ct. 2162, 2168 (1999) (stressing that substantial limitations should not be equated with "utter inabilities"). The Supreme Court's decision in Sutton v. United Air Lines, Inc. is not to the contrary. In Sutton, the Supreme Court held that a fully correctable vision impairment did not constitute a covered disability under the ADA. The key fact in Sutton was that the plaintiffs could fully ameliorate their vision impairment by simply slipping on a pair of eye glasses. 119 S. Ct. at 2149. Epilepsy is not so easily mitigated, a point that the Supreme Court took care to note in its Sutton decision. Distinguishing epilepsy from the easily correctable vision impairment at issue in Sutton, the Court clarified that individuals with epilepsy may be covered under the ADA, even if antiepileptic drugs fully ameliorate the effects of the impairment, if those drugs have "negative side effects" that are substantially limiting in their own right. Id. at 2147. The Court further explained that individuals who "take medicine for epilepsy" may still have an actual disability under the ADA if they "take medicine to lessen the symptoms of an impairment so that they can function but nevertheless remain substantially limited." Id. at 2149. Under Sutton, it is entirely possible for an individual taking antiepileptic drugs to be substantially limited in one or more major life activities due either to the negative effects of the medication or the failure of the medication to fully ameliorate the effects of the condition. Notably, in Sutton, the Supreme Court drew substantial support from the fact that the ADA cited a figure of 43 million Americans with disabilities. See id. at 2147-49. The Court reasoned that, in light of this figure, it made no sense to cover individuals with correctable vision impairments, a class comprised of some 100 million Americans. Id. The statistics on epilepsy reveal an entirely different picture. According to a recent study commissioned by the Epilepsy Foundation, approximately 2.3 million Americans of all ages have epilepsy. See Epilepsy Foundation: EpilepsyUSA Online News Magazine, http://www.efa.org/news/epilepsyUSA/coststudy.html (citing Charles E. Begley, et al., The Cost of Epilepsy in the United States: An Estimate from Population-Based Clinical and Survey Data, EPILEPSIA, Vol. 41, No. 2000). Of those 2.3 million, just over 1 million (44 percent) continue to have seizures despite treatment. Id. Of those 1 million, approximately 725,000 are adults under the age of 65. Id. Covering individuals with epilepsy, particularly those with on-going seizure activity, would not "break the bank" on coverage. To the contrary, it would be well within Congress' estimate of 43 million disabled, a figure that, while not without limits, belies any argument that the protections of the ADA extend only to some narrow segment of the population. Based on the foregoing understanding of congressional intent, the burden of showing a covered disability in cases of this nature should not be an onerous one. Cf. Kirkingburg, 119 S. Ct. at 2169 (rejecting the argument that monocular vision is a "per se" disability but opining that, in light of the "medical literature," individuals with monocular vision "'ordinarily' will meet the Act's definition of disability"). In this case, the evidence strongly supports a finding of disability status under one of several evidentiary theories. First, the existence of an actual disability can be established under an "intermittent manifestation" theory. The ADA does not cover temporary or short-term conditions that have a minor impact on an individual's life. The statute does, however, cover chronic conditions that manifest themselves on an intermittent basis, leading to brief periods or episodes of debilitation. See Van Zande v. State of Wisconsin Dep't of Admin., 44 F.3d 538, 544 (7th Cir. 1995) (stating that "[o]ften the disabling aspect of a disability is, precisely, [the] intermittent manifestation of the disability, rather than the underlying impairment"); 2 EEOC Compliance Manual, Interpretations (CCH) § 902.4, ¶ 6884 at p. 5320 (1995) (stressing that "some chronic conditions may constitute substantially limiting impairments" even if they are asymptomatic for substantial periods of time). This case fits squarely into the intermittent manifestation box. Turpin's epileptic seizures are a "life-long phenomena." J.A. at 339. Turpin experiences both nocturnal and daytime seizures on a regular, ongoing basis. During those seizures, Turpin is "completely unaware of, and unresponsive to, her surroundings," id. at 338, leading to substantial limitations -- while the seizure persists -- on a plethora of major life activities, e.g., walking, hearing, lifting, speaking, performing manual tasks. Because Turpin's permanent epilepsy, with its intermittent manifestations, has "a high likelihood of recurrence in substantially limiting forms," 2 EEOC Compliance Manual Interpretations (CCH) § 902.4, ¶ 6884, at p. 5320, Turpin's condition satisfies the statutory threshold for an actual disability. The district court found that "Turpin's complex partial seizure episodes were simply too temporary to constitute a substantial limitation on any major life activity." J.A. at 354. This misses the point. Turpin's seizures "would last only a few minutes." Id. at 353. The seizures, however, were not sporadic. They occurred with some frequency, both at night and during the day, and were incapacitating for the duration of the seizure. An impairment is substantially limiting when an individual is "significantly restricted as to the condition, manner or duration under which [the] individual can perform a particular major life activity" as compared to "the average person in the general population." 29 C.F.R. § 1630.2(j)(1)(ii). The average person in the general population does not experience recurring episodes -- of up to two minutes in length -- during which the person is in an incapacitated state, unable to perform a host of major life activities. An individual with epilepsy who is prone to seizures that are temporarily debilitating has "a condition [that] obviously limits [him] in significant ways." EEOC v. Kinney Shoe Corp., 917 F. Supp. 419, 425 (W.D. Va. 1996), aff'd on other grounds, 104 F.3d 683 (4th Cir. 1997); see Reynolds v. Brock, 815 F.2d 571, 573-74 (9th Cir. 1987) (citing the "inescapable conclusion" that an individual with epilepsy has a substantially limiting impairment if the individual is not seizure-free); Rowles v. Automated Prod. Sys., Inc., 92 F. Supp. 2d 424, 429 (M.D. Pa. 2000) (reasonable juror could conclude that plaintiff was disabled where, despite the use of medication, plaintiff was still at risk of occasional, substantially limiting seizures); Eckles v. Consolidated Rail Corp., 890 F. Supp. 1391, 1399 & n.4 (S.D. Ind. 1995) (fact issue exists as to whether plaintiff who is experiencing seizures while medicated is substantially limited in major life activities; noting assumption in legislative history that "the employee with epilepsy will be found disabled"), aff'd on other grounds, 94 F.3d 1041 (7th Cir. 1996); Sunkett v. Olsten Temporary Servs., 1995 WL 507044, *4 n.5 (N.D. Cal. 1995) (individual with epileptic condition that triggers occasional seizures "clearly" has a physical impairment that substantially limits major life activities), rev'd on other grounds, 1997 WL 349049 (9th Cir. 1997); Vazquez v. Bedsole, 888 F. Supp. 727, 731 (E.D.N.C. 1995) (plaintiff with epilepsy who has seizures on semi-regular basis is "disabled" for purposes of summary judgment). Alternatively, disability can be established under the theory that the cumulative weight of Turpin's impairment substantially limited her ability to care for herself. See 29 C.F.R. § 1630.2(i) (listing "caring for oneself" as a major life activity). Turpin's epileptic seizures cannot be assessed in a vacuum. When she had nocturnal seizures, Turpin would bite her tongue, "causing eating and drinking problems the next day." J.A. at 337. "These nocturnal seizures would leave Turpin feeling tired in the morning, as if she had not caught a wink of sleep." Id. Turpin's daytime seizures left her feeling "'spaced out' for a short period of time, as she would feel dizzy, weak, nervous, and upset, and would need to go off by herself to recover." Id. at 353. Turpin, moreover, had a residual loss in her capacity to think and concentrate, leading to repeated incidents of memory loss. "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." Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 309 (3d Cir. 1999). The cumulative impact of epilepsy, on an individual such as Turpin, is profound. Seizures are, by their very nature, unpredictable. Individuals who experience seizures on an on-going basis live in constant fear of another seizure. See Epilepsy Foundation, Epilepsy: A Report to the Nation 11 (1999) (reporting that 50 percent of people with epilepsy cite the fear of another seizure as the single worst thing about living with epilepsy). Many individuals with epilepsy make alterations in their daily behavior and schedule to minimize the risk of seizure. Many rely upon the assistance of others to combat the residual effects of seizure activity. In this case, alterations were made in Turpin's daily living to ensure that Turpin was not placed in any "situation" that would increase the risk of seizure. J.A. at 272-73. Turpin, moreover, was assisted by her husband in carrying out daily activities on those occasions when Turpin had daytime seizures or break downs in memory resulting from the seizure activity. Turpin's husband also helped Turpin manage her sometimes harrowing nocturnal seizures. Turpin, although not incapable of caring for herself, was substantially burdened in her ability to do so, thus triggering the protections of the ADA. See Rowles, 92 F. Supp. 2d at 429 (epilepsy was a substantially limiting impairment where the plaintiff was required to make significant alterations in his daily living to mitigate the effects of the condition); cf. Sutton, 119 S. Ct. at 2149 (finding that the plaintiffs' vision impairment was not substantially limiting where the plaintiffs could fully ameliorate the effects of the impairment by simply putting on a pair of eyeglasses). Finally, the evidence supports a finding that Turpin was substantially limited in the specific major life activities of sleeping and thinking.<5> There is no dispute that Turpin experienced nocturnal seizures on a regular and ongoing basis. Although the district court reduced the effects of Turpin's seizures to "fitful nights of sleep twice a week," J.A. at 350, this trivializes Turpin's condition. Turpin's nocturnal seizures "were characterized by shaking, kicking, salivating, and bed wetting." Id. at 337. Turpin would bite her tongue during nocturnal seizures and would awaken "to find her bed covers tossed onto the floor and her arm or leg bruised." Id. On one occasion, Turpin woke up on the floor in the middle of the night with paramedics hovering over her. An impairment is substantially limiting when an individual is significantly restricted as to the "manner" or "condition" under which the individual performs a major life activity, as compared to the average person in the general population. 29 C.F.R. § 1630.2(j)(1). The average person in the general population, even one who experiences "fitful nights of sleep," does not inflict physical injury on herself, nor shake, kick, salivate, and bed wet while sleeping.<6> A reasonable jury could find that Turpin's impairment had a substantial impact on Turpin's ability to sleep. See generally Franklin v. Consolidated Edison Co. of New York, Inc., 1999 WL 796170, **11-12 (S.D.N.Y. Sept. 30, 1999) (evidence that medication taken to combat the effects of epilepsy produced "mild sedation and insomnia" sufficient to support a finding that plaintiff was substantially limited in the major life activity of sleeping). Turpin's impairment also imposed a substantial limitation on her ability to think. Again, there is no dispute that Turpin's seizures resulted in some memory loss. The district court's reference to Turpin "forgetting things twice or thrice on a weekly basis" understates the quality of the Commission's evidence. It is perhaps true that many "adults in the general population suffer from a few incidents of forgetfulness a week." J.A. at 352. But does the average adult routinely forget how many doses of medication they have taken during a day? Does the average adult have to rely upon another adult to help her remember daily tasks? Does the average adult start blowing the horn in her car and, when asked about the incident a short time later, forget what she had done? Does the average adult get lost on a routine visit to her doctor, completely forgetting the location of the doctor's office? This evidence supports a finding of a substantially limiting impairment. C. Turpin's Proposed Accommodation Was Not Unreasonable As A Matter Of Law The second issue raised by this appeal concerns Sara Lee's obligation to provide a reasonable accommodation for Turpin's epilepsy (assuming the condition constitutes a covered disability). On this point, the district court ruled that Turpin's proposed accommodation -- being permitted to stay in her first shift position -- was unreasonable as a matter of law, since it conflicted with Sara Lee's seniority policy. There are "many ADA cases holding that reasonable accommodation does not require modifying a collectively-bargained-for seniority policy." J.A. at 357. This case, however, does not involve a collective bargaining agreement. It involves a self-imposed seniority policy that, by its terms, is subject to adjustment or exception at Sara Lee's discretion. In this case, moreover, Turpin was not seeking reassignment to an entirely new position that was otherwise guaranteed to a more senior employee. Turpin was asking for a relatively minor adjustment in her work schedule, one that would permit her to continue working in a shift that accommodated her disability. See 42 U.S.C. § 12111(9)(B) (defining reasonable accommodation to include "part-time or modified work schedules"). Courts have dismissed claims of reasonable accommodation, as a matter of law, when the proposed accommodation would require an employer to reassign a disabled employee to a position that is slotted for a more senior employee under the terms of a collective bargaining agreement. See, e.g., Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996). Where, as here, the proposed accommodation merely implicates the employer's own seniority policies, the accommodation is not per se unreasonable. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175-76 (10th Cir. 1999) (en banc) (distinguishing between cases involving reassignment to a position for which another employee has a "vested priority right" under the terms of a collective bargaining agreement, where the accommodation is per se unreasonable, and cases involving an accommodation that merely implicates the employer's own seniority system, where the accommodation may be legally required).<7> The district court opined that "the accommodation sought by Turpin would have required Sara Lee to give preference to Turpin and her disability over another employee," and "it is clear that the ADA requires nothing more than that employers treat disabled and non-disabled employees equally with respect to personnel decisions." J.A. at 358. This too narrowly defines the scope of protection under the ADA. The central purpose of the ADA is to enhance the employability of disabled individuals by requiring employers to make "modifications to existing facilities and practices." 42 U.S.C. § 12101(a)(5). To carry out that purpose, the ADA defines "not making reasonable accommodations" as a form of unlawful discrimination under the ADA. 42 U.S.C. § 12112(b)(5)(A) (emphasis added). The ADA requires an employer to assist a disabled individual by making modifications or adjustments "to a job application process," "the work environment," or "the manner or circumstances under which the position held or desired is customarily performed." 29 C.F.R. § 1630.2(o)(1). The result of these modifications and adjustments, in many cases, is that a disabled individual is able to obtain an employment opportunity that might have otherwise gone to a non-disabled individual (because, for example, the disabled individual is able to perform the essential functions of a job with special assistive devices provided by an employer). The ADA does not simply require that employers treat "disabled and non-disabled employees equally." The statute imposes a duty of reasonable accommodation on employers in recognition of the unique barriers to employment confronting the disabled. See Garcia-Ayala v. Lederle Parenterals, Inc., 2000 WL 622816, *6 n.9 (1st Cir. May 18, 2000) (employer's argument "that there was no intent to discriminate based on disability misses the important point that the ADA does more than prohibit disparate treatment;" "[i]t also imposes an affirmative obligation to provide reasonable accommodation to disabled employees"); Kells v. Sinclair Buick-GMC Truck, Inc., 2000 WL 489753, *5 (8th Cir. April 27, 2000) ("In addition to prohibiting discrimination on account of disability, the ADA imposes an affirmative duty on employers to provide 'reasonable accommodations' . . ."); Stevens v. Illinois Dep't of Transp., 2000 WL 365947, *4 (7th Cir. April 11, 2000) (ADA "is tailored to achieving its goal . . . by forbidding employment discrimination against the disabled and imposing an affirmative duty to provide reasonable accommodation on public and private employers") (emphasis added); Smith, 180 F.3d at 1165 (stating that the ADA's "reassignment obligation must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position"); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05 & n.29 (D.C. Cir. 1998) (en banc) (stressing that the ADA's accommodation obligation "means something more than treating a disabled employee like any other job applicant"); L.C. v. Olmstead, 138 F.3d 893, 899 (11th Cir. 1998) (ADA "does not only mandate that individuals with disabilities be treated the same as persons without such disabilities;" "individuals with disabilities must be accorded reasonable accommodations not accorded to other persons in order to ensure that individuals with disabilities enjoy 'equality of opportunity, full participation, independent living, and economic self-sufficiency'"), aff'd in part, vacated in part on other grounds, 119 S. Ct. 2176 (1999); Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 143 (2d Cir. 1995) (rejecting employer's argument that disability claim failed absent evidence of disparate treatment; employer had "affirmative obligation" to make reasonable accommodation to the plaintiff's known disabilities); Dunlap v. Association of Bay Area Gov'ts, 996 F. Supp. 962, 966 (N.D. Cal. 1998) (stressing that, "under the ADA, a person with a disability need not prove that she was treated differently from non-disabled individuals;" "[d]iscrimination may be shown precisely where the defendant treated plaintiff the same as everyone around her, despite her need for reasonable accommodation"). In enacting the ADA, Congress was well aware of the plight of the disabled population. Congress cited the "staggering levels of unemployment and poverty" among the millions of "people with disabilities [who] want to work but cannot find a job." H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 32-33, reprinted in 1990 U.S.C.C.A.N. at 314-15. Congress recognized that, in the absence of the affirmative protection provided by the reasonable accommodation requirement, many disabled individuals would be forced to resort to "insurance payments or government benefits for support." Id. At bottom, Congress envisioned the ADA as a tool for combating the systematic underemployment of the disabled, with its resulting social and fiscal costs, treating the failure to accommodate as a form of unlawful discrimination. Requiring an employer to make adjustments in a self-imposed seniority policy, thus permitting a disabled individual to continue working at her job, is fully consistent with the purposes of the ADA. Id. at 63, reprinted in 1990 U.S.C.C.A.N. at 345 (expressing the desire that disabled employees be retained in their jobs, if at all possible, to "prevent the employee from being out of work and [the] employer from losing a valuable worker"). This does not mean that employers in cases of this nature have no defense to a claim of reasonable accommodation. Under an undue hardship analysis, an employer can defeat an otherwise valid accommodation if the accommodation would "constitute a fundamental and unreasonable alteration in the nature of the employer's business." Smith, 180 F.3d at 1176; see 29 C.F.R. § 1630.2(p) (setting forth the undue hardship standard). In this case, Sara Lee argues that such an undue hardship would result because Sara Lee's employees view the seniority policy as "sacred." J.A. at 340. The evidence shows, however, that Sara Lee retains the right to make adjustments to its policy as it sees fit.<8> The policy, as written, does not apply to plant closings, leaving Sara Lee free to carry out these closings (and transfers) without regard to its seniority policy, as it has on at least one occasion. According to Sara Lee's own officials, the company is free to modify the seniority policy when the company perceives such a modification to be in its "best interest." Id. at 320. It cannot be said, on this record, that permitting Turpin to work the first shift would have produced a "fundamental and unreasonable alteration" in the nature of Sara Lee's business.<9> See Smith, 180 F.3d at 1176 (suggesting that a seniority policy, not rooted in a collective bargaining agreement, would have to be, at a minimum, firmly "entrenched" in the industry to support an undue hardship argument). D. Sara Lee Did Not Provide A Reasonable Accommodation By Limiting Turpin To The Options Made Available Under A Rote Application Of Sara Lee's Self-Imposed Seniority Policy The district court also ruled that Sara Lee was not, in any event, required to provide Turpin's proposed accommodation because Sara Lee's offer of one of three options -- a second or third shift position, lay off, or seniority package -- constituted a reasonable accommodation in its own right. This is a nonsensical ruling. The three options offered by Sara Lee were not accommodations, designed to overcome the "precise limitations imposed by [Turpin's] disability." Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App. § 1630.2(o). They were options that flowed from a rote application of Sara Lee's self-imposed seniority policy, the same options extended to any individual being bumped from the first shift by virtue of the seniority policy. By definition, an accommodation is a "change in the work environment or in the way things are customarily done." Id. (emphasis added). In this case, Sara Lee did not "change" anything; it steadfastly adhered to its self-imposed seniority policy in the face of Turpin's request for accommodation. The district court's assertion that Turpin should have "attempted to adjust her body to a new (and regular) sleeping pattern under the second or third shift" (J.A. at 362) ignores the fact that Turpin's own physician, in consultation with Turpin's specialist, Dr. Healy, had advised that such a change could exacerbate Turpin's seizures. Although Sara Lee's in-house "Medical Director" expressed the opinion that the change in shift would not affect Turpin so long as Turpin worked a non-rotating shift, this individual never examined Turpin and was not a specialist in neurological conditions. Dr. Healy, a neurologist with first-hand knowledge of Turpin's condition, offered a different opinion, to wit, that "for this particular patient and for any seizure patient working during the day on first shift and sleeping at night is the most ideal situation;" that "[p]eople do not sleep as well during the day as they do at night and actually the best sleep there is is the sleep that you get before midnight;" that any change to a second or third shift position could have the immediate consequence of intensifying Turpin's seizure activity, leading to even greater seizure activity in the long run, given the medical evidence "that if a seizure happens, then it's more apt to repeat." Id. at 108-09, 306. Critically, Sara Lee never spoke with Dr. Healy at the time of the events in question and, thus, never attempted, through the interactive process contemplated under the ADA (see 29 C.F.R. § 1630.2(o)(3)),<10> to "identify the precise limitations imposed by the disability and explore potential accommodations that would overcome those limitations." Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App. § 1630.2(o). To the contrary, Sara Lee sought to force Turpin into a shift that, based on the best available medical evidence, posed a substantial risk of aggravating her disabling condition. Under these circumstances, any contention that Sara Lee provided a reasonable accommodation by offering a second or third shift position to Turpin falls of its own weight. CONCLUSION The district court erred in granting summary judgment on the Commission's ADA claim. The court's grant of summary judgment should be reversed and the case remanded. Respectfully Submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 June 12, 2000 (202) 663 1 As the district court noted, the Commission alleges that Turpin was unlawfully discharged from Sara Lee on May 31, 1997. Thus, the "relevant time period for assessing her disability is the period surrounding her May 1997 discharge." Id. at 337. 2 The precise number of daytime seizures experienced by Turpin is unclear. Turpin's husband, Benjamin Gethers, testified that, as of the date of his deposition (in 1999), Turpin was experiencing one or two daytime seizures a week. Id. at 272. Gethers was not around Turpin as much in 1997 and, thus, was unable to pinpoint a precise number of daytime seizures for that time frame. Gethers testified, nonetheless, that he had observed Turpin experiencing "a lot" of daytime seizures during 1997. Id. at 275. 3 The Commission relies solely upon the "actual" disability prong of the ADA's definition of disability. See 42 U.S.C. § 12102(2)(A). The Commission does not argue for coverage under either the "regarded as" or "record of" prong of that definition. See 42 U.S.C. § 12102(2)(B)-(C). 4 To be sure, in discussing the status of epilepsy as a covered disability under the ADA, Congress appeared to assume that disability status under the ADA was to be determined without regard to mitigating measures, see, e.g., H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 52, reprinted in 1990 U.S.C.C.A.N. at 334, an assumption rejected by the Supreme Court in Sutton v. United Air Lines, Inc., 119 S. Ct. at 2146-49. The fact remains, however, that Congress viewed epilepsy as a substantially limiting impairment, at least in those cases where its effects were not readily controlled by medication. More generally, Congress assumed that the protections of the ADA, including the statute's reasonable accommodation requirement, would extend to large numbers of individuals with epilepsy. 5 The district court agreed with the Commission that sleeping and thinking are major life activities within the meaning of the ADA. J.A. at 347-48; see Smoke v. Wal-Mart Stores, Inc., 2000 WL 192806, *3 (10th Cir. Feb. 17, 2000) (citing thinking as a major life activity); McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir. 1999) (citing sleeping as a major life activity); Taylor, 184 F.3d at 307 (citing thinking as a major life activity); Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.) (citing sleeping as a major life activity), cert. denied, 120 S. Ct. 45 (1999); Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998) (citing sleeping as a major life activity), cert. denied, 526 U.S. 1018 (1999); Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice 915.002 (March 25, 1997), reprinted in 2 EEOC Compliance Manual Interpretations (CCH) §902, ¶ 6906, at p.5399 (citing sleeping, thinking, and concentrating as major life activities). 6 The district court faulted the Commission for failing to produce "any evidence regarding the average person's ability to sleep soundly." J.A. at 350. The Commission, however, was not required to adduce specific evidence showing that the average adult does not salivate, bed wet, bruise herself, or severely bite her tongue while sleeping. A jury, relying upon its common sense and life experience, could reasonably infer that Turpin's sleeping habits did not mirror those of the average person. See Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir. 1996) (rejecting the argument that the plaintiff was required, as a matter of law, to produce specific evidence comparing her capacities to those of an average person in order to raise a question of fact on the issue of disability). 7 The district court cited Barnett v. U.S. Air, Inc., 196 F.3d 979 (9th Cir. 1999), as rejecting the distinction between collectively-bargained-for seniority systems and self-imposed seniority systems. The Ninth Circuit has granted en banc review in Barnett. 201 F.3d 1256 (Feb. 1, 2000). 8 This fact undercuts Sara Lee's argument, in the district court, that no distinction should be made between a self-imposed seniority rule and a seniority rule embodied in a collective bargaining agreement because the implied contract doctrine binds employers to statements made in policies and manuals issued by the employer. Although South Carolina law recognizes the implied contract doctrine, see Small v. Springs Indus., Inc., 357 S.E.2d 452 (S.C. 1987), it does so where the employer makes explicit assurances that the provisions of an employer policy will "always" be followed. Id. at 453-55 (stressing that if an employer "wishes to issue policies, manuals, or bulletins as purely advisory statements with no intent of being bound by them," it can merely insert "a conspicuous disclaimer or provision into the written document"); see also Gorrill v. Icelandair/Flugleidir, 761 F.2d 847, 852 (2d Cir. 1985) (seniority rule in Operations Manual was binding on employer where employer made "repeated oral and written assurances" that the Manual was "controlling"); Bumstead v. Jasper County, 931 F. Supp. 1323, 1328-29 (E.D. Tex. 1996) (promises made in an employee manual may bind the employer where the manual is "not subject to unilateral modification" by the employer). The language in Sara Lee's seniority policy -- reserving the company's right "to make modification changes to the provisions of [the] policy" (J.A. at 42) -- seems carefully calculated to avoid the imposition of binding obligations under an implied contract theory. 9 The undue hardship issue was raised during the deposition of Sara Lee's Employee Relations Manager, Cliff Metcalf. When asked "what would have been the effect on Sara Lee's operations" if "an exception had been made in Vanessa Turpin's case," Metcalf responded, "[t]hat would be hard to answer because I think the effect on Sara Lee's operations would depend on the extent that that would have had an effect from employees relations standpoint." J.A. at 324. This tepid response hardly supports an undue hardship defense. It also reveals that the company gave little thought to the issue (if any) when it chose to dismiss Turpin's proposed accommodation and "stick with the seniority policy." Id. at 135. 10 The failure to engage in the interactive process does not, by itself, give rise to an independent violation of the ADA. See, e.g., Rehling v. City of Chicago, 207 F.3d 1009, 1015 (7th Cir. 2000) (because the interactive process "is not an end in itself," employer's refusal to engage in the interactive process does not, by itself, establish a violation of the ADA); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (same). Nonetheless, when the employer fails to engage in the interactive process or causes the process to break down (as Sara Lee did here), the employer bears the risk of liability for a failure to accommodate that could have been avoided through better communication with the employee. See Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951-52 (8th Cir. 1999) (holding that "for purposes of summary judgment, the failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith"); Taylor, 184 F.3d at 311-20 (summary judgment is typically improper on claim of reasonable accommodation where there is evidence that the employer did not act in good faith in carrying out its obligations under the interactive process).