IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT ____________________ No. 03-1878 _____________________ JOHN CHRISTOPHER SHAVER, Plaintiff-Appellant, v. INDEPENDENCE STAVE COMPANY, INC., d/b/a SALEM WOOD PRODUCTS COMPANY, et al., Defendants-Appellees. _________________________________________________________ On Appeal from the United States District Court for the Eastern District of Missouri, No. 4:01CV01354 The Honorable Charles A. Shaw, Presiding _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT FOR REVERSAL _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, N.W., Room 7020 JOSEPH A. SEINER Washington, D.C. 20507 Attorney (202) 663-4772 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUES 1 STATEMENT OF THE CASE 2 SUMMARY OF ARGUMENT 8 ARGUMENT 9 Shaver Presented Sufficient Evidence of Disability-Based Harassment. 9 A. The ADA Prohibits Disability-Based Harassment. 9 Shaver Satisfies the Elements of a Disability-Based Harassment Claim. 11 Shaver is a Qualified Individual with a Disability. 12 The Harassment was Unwelcome. 17 The Harassment was Based on Shaver's Disability. 18 The Harassment Affected a Term, Condition, or Privilege of Employment. 19 The District Court Improperly Rejected Shaver's Retaliation Claim. 26 CONCLUSION 30 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Boutros v. Canton Reg'l Transp. Auth., 997 F.2d 198 (6th Cir. 1993) 22 Bradley v. Widnall, 232 F.3d 626 (8th Cir. 2000) 11 Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040 (8th Cir. 2002) 15-16 Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir. 2001) 29 Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981) 23 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . . . .. . 17-18 Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959 (8th Cir. 1993) 22, 25 Cannon v. Univ. of Chi., 441 U.S. 677 (1979) 11 Davidson v. Midelfort Clinic, 133 F.3d 499 (7th Cir. 1998) 15 Delph v. Dr. Pepper Bottling Co., 130 F.3d 349 (8th Cir. 1997) 22, 24 Diaz v. Swift-Eckrich, Inc., 318 F.3d 796 (8th Cir. 2003) 20 Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997) 16-17 Duncan v. Gen. Motors Corp., 300 F.3d 928 (8th Cir. 2002), cert. denied, 123 S. Ct. 1789 (2003) 19 Flowers v. S. Reg'l Physician Servs., 247 F.3d 229 (5th Cir. 2001) 10-11 Fox v. Gen'l Motors Corp., 247 F.3d 169 (4th Cir. 2001) 10-11, 18, 25-26 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) 29 Jeseritz v. Potter, 282 F.3d 542 (8th Cir. 2002) 10-11 Kyles v. J.K. Guardian Sec. Sys., 222 F.3d 289 (7th Cir. 2000) 28-29 Lawson v. CSX Transp. Inc., 245 F.3d 916 (7th Cir. 2001) 14 Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997) 18 McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001) 12-13, 15 Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) 10 Miller v. Kenworth, 277 F.3d 1269 (11th Cir. 2002) 22 Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001) 22-23 Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000) 13-14 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) 10 Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300 (8th Cir. 1995) 29 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 27 Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993) 24-25 Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001) 17 Ross v. Douglas County, 234 F.3d 391 (8th Cir. 2000) 21 Sch. Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) 15-16 Shanoff v. Ill. Dep't of Human Servs., 258 F.3d 696 (7th Cir. 2001) . . . . . . . . . . .. . 22 Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir. 1997) 21-22, 24, 26-27 Tate v. Apfel, 167 F.3d 1191 (8th Cir. 1999) 13 Todd v. Ortho Biotech, Inc., 175 F.3d 595 (8th Cir. 1999) 17 Wallin v. Minn. Dep't of Corr., 153 F.3d 681 (8th Cir. 1998) 11 FEDERAL STATUTES, REGULATIONS, AND RULES Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. passim 42 U.S.C. § 2000e-2 10 29 C.F.R. pt. 1630 12, 14, 16, 23 Fed. R. App. P. 29. 1 CONGRESSIONAL RECORD 136 Cong. Rec. S7422, S7444 (1990) (daily ed. June 6, 1990) 21 EEOC TECHNICAL ASSISTANCE EEOC, Technical Assistance Manual on Title I of the ADA, 8 FEP Manual (BNA) 405:6981, 7201-02 (Jan. 27, 1992) 23 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) enforces Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. This case raises questions regarding the evidence necessary for claims of disability harassment and retaliation under the ADA. Because of the importance of these issues to the enforcement of the ADA, we offer our views to the Court under Fed. R. App. P. 29(a), which authorizes a government agency to file an amicus curiae brief "without the consent of the parties or leave of court." STATEMENT OF THE ISSUES (1) 1. Whether plaintiff, who had metal plates surgically implanted into his head as a result of severe epilepsy, was harassed on the basis of his disability when he was called "platehead," "stupid," "playing with half a brain," and told he was not "playing with a full deck" on a daily basis by supervisors and co-workers alike despite his frequent complaints. Fox v. Gen'l Motors Corp., 247 F.3d 169 (4th Cir. 2001) Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000) Ross v. Douglas County, 234 F.3d 391 (8th Cir. 2000) Delph v. Dr. Pepper Bottling Co., 130 F.3d 349 (8th Cir. 1997) 42 U.S.C. §§ 12102(2), 12112(a) 2. Whether plaintiff's employer illegally retaliated against him for filing a charge of discrimination by providing negative job references indicating that plaintiff was "looking for a get-rich-quick scheme" and was involved in "suing companies." Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir. 1997) Kyles v. J.K. Guardian Sec. Sys., 222 F.3d 289 (7th Cir. 2000) Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 42 U.S.C. § 12203(a) STATEMENT OF THE CASE John Shaver, now 37 years old, was diagnosed with epilepsy at the age of 13. (App. at 967; Shaver Dep. at 14.) (2) Shaver would experience convulsive grand mal seizures at night in his sleep. (Id.) The after-effects of these seizures included disorientation, loss of appetite, and excessive sleeping, as Shaver would often sleep for 24 to 48 hours following a seizure. (Id.) Medication to control the seizures proved ineffective when Shaver reached adulthood. (App. at 966-67; Shaver Dep. at 9-10, 15.) Because of his epilepsy, Shaver was unable to work at all for four years and received Social Security benefits during that time. (App. at 966; Shaver Dep. at 9-10.) In 1994-95, Shaver underwent several operations over a nine-month period to help control his epilepsy. (App. at 967-68; Shaver Dep. at 15-17; App. at 1206-07; Letter of Dr. Sertl.) Surgeons cut the left side of his skull, pulled out the brain tissue, and removed 80% of his left hippocampus. (Id.) The brain was then put back and metal plates inserted to keep the section that was cut in place. (Id.) The surgery made Shaver's epilepsy more medically controllable, allowing Shaver to enter the workforce. (Id.) In May 1998, Shaver became a production-line worker for Salem. (App. at 70-71; Defendant's Submission of Undisputed Facts.) Salem produces staves and headers for bourbon and wine barrels from uncut oak logs. (Id. at 71.) Shaver worked mainly with the Optimizer, a computer that finds the optimal place for cutting logs into stave length "bolts." (Id.) In June 1998, Shaver suffered a work-related injury when a loader hit him on the head, and was accompanied to the hospital by his assistant supervisor, Darren Cook, per company policy. (App. at 1149-50; Westerman Dep. at 19-21.) While at the hospital Cook learned that Shaver had a plate in his head. (App. at 1102, 1104; Weikel Dep. at 17, 25; App. at 752-53; Cook Dep. at 32-33; App. at 980-81, 983; Shaver Dep. at 68-69, 78.) On July 23, 1998, Shaver's doctor wrote a letter to Salem regarding Shaver's injury and condition. (App. at 1206-07; Letter of Dr. Sertl; App. at 1032-33, Transano Dep. at 60-63.) The doctor stated that of "significance is the fact that [Shaver] previously had brain surgery for epilepsy and had several operations between September of 1994 and March of 1995." (Id.) The doctor further indicated that his medical history was "significant for seizures," and that his diagnosis included "Epilepsy, status post brain surgery x 3." (Id.) When Cook returned to work following Shaver's accident, he informed the other workers that Shaver had a plate in his head, and that Shaver's head could not be sewed together because of the plate. (App. at 1102, 1104, 1106; Weikel Dep. at 17, 25-26, 35-36.) Shaver's co-workers responded to Cook's statements with laughter. (Id.) From that moment through his termination over two years later, Shaver was subjected, on a daily basis, to ridicule, degrading comments and jokes, and other forms of harassment by both supervisors and co-workers alike. This harassment included: Cook called Shaver "platehead" to his face for two weeks following his injury and thereafter behind his back. (App. at 992; Shaver Dep. at 113-14; App. at 1100, 1104; Weikel Dep. at 10-11, 28; App. at 813; Farris Dep. at 12.) Supervisors/Managers Mike Transano, Scott Westerman, Stanley Nelson and Assistant Supervisor Brad Paine also called Shaver "platehead" to his face, and Westerman, Nelson, and Paine did so on a daily basis. (App. at 980, 991-92; Shaver Dep. at 67-68, 111-15; App. at 854; Lato Dep. at 25-28.) Westerman, a shift supervisor, introduced Shaver to new employees as "platehead," and referred to Shaver as "platehead" several times each day. Westerman laughed at Shaver when he asked him not to call him "platehead." (App. at 980, 992; Shaver Dep. at 67-68, 114-15; App. at 825; Harrell Dep. at 11.) Westerman commented that others should watch out for Shaver because he was "only playing with half a brain" and referred to him as "stupid." Westerman also treated Shaver as if he were mentally handicapped by not letting him accomplish tasks, not listening to him, and blaming him when machinery would break down. (App. at 984, 992; Shaver Dep. at 81-83, 114-15.) Nelson and maintenance worker Gene Stafford told Shaver that he should not be operating certain machinery because he "wasn't playing with a full deck." (App. at 986; Shaver Dep. at 91-92.) Stafford, one of Shaver's co-workers, called him "platehead" or something worse every time something went wrong around him and referred to him as stupid. Stafford considered Shaver to be "somewhat of a retarded person." (App. at 984-85; Shaver Dep. at 83-86; App. at 854; Lato Dep. at 26-28.) All of the maintenance men at the mill, as well as at least some of the cleanup crew, called Shaver "platehead." (App. at 980, 982; Shaver Dep. at 66, 74.) Beyond the insults and ridicule directed at Shaver in his presence, the belief that Shaver was disabled and thus could not perform as well as other employees permeated the mill. For example, someone questioned (in a non-joking manner) whether Shaver "pissed his pants and forgot who he was" when the microwave was turned on. (App. at 817, 820; Farris Dep. at 25, 39-40.) One co-worker recalled that the term "platehead" was used more often than Shaver's real name. (App. at 871; Lato Dep. at 96.) Another co-worker testified that a supervisor would refer to Shaver as "platehead" 95% of the time. (App. at 1104; Weikel Dep. at 28.) And some of Shaver's supervisors considered him too stupid for a position somewhere else, and would also refer to him as "dumb" or "stupid." (App. at 1100; Weikel Dep. at 11-12; App. at 814-815; Farris Dep. at 16-17; App. at 826-827; Harrell Dep. at 14-17.) Shaver did not simply accept this barrage of demeaning insults, jokes, and comments. Rather, he informed the mill manager, Robbie McKenzie, as well as supervisors Westerman, Nelson, assistant supervisor Cook, and "half or better of the personnel" on his shift that the term "platehead" bothered him. (App. at 980, 982, 991-92; Shaver Dep. at 65-68, 74-75, 111-15.) Still the insults continued until his discharge in September 2000. (Id.) Even after Shaver complained to the mill manager, the harassment only stopped for approximately two to three weeks - then resumed and became even more frequent. (App. at 980; Shaver Dep. at 67). On January 11, 2001, Shaver filed a charge of disability discrimination with the EEOC and the Missouri Commission on Human Rights. (App. at 242; EEOC Harassment Charge.) Following the filing of this charge, while Shaver was looking for another job, one of Shaver's supervisors told two prospective employers seeking references that Shaver was "looking for a get-rich-quick scheme" and was involved in "suing companies." (App. at 1094-95; Van Kirk Dep. at 40-41; App. at 1192, 1198; Wright Dep. at 28, 51.) Shaver thus filed a separate retaliation charge on June 7, 2001. (App. at 245; EEOC Retaliation Charge.) Shaver subsequently filed this action on September 17, 2001. (App. at 1; Complaint.) The district court granted Salem's motion for summary judgment on all of Shaver's federal claims and declined to exercise supplemental jurisdiction over Salem's state-law claim. With respect to Shaver's ADA claim, the court assumed without deciding that Shaver met the definition of a disabled person under either the "regarded as" or "record of" prongs of the statute. 2003 WL 1203575, at *6 (E.D. Mo. Mar. 6, 2003). The court further acknowledged that this Court has implicitly recognized a hostile work environment claim under the ADA. Id. However, the court determined as a matter of law that while the "frequent reference" to Shaver as "platehead" may have been "insulting, mean-spirited, and unprofessional," it "was not so severe and extreme that a reasonable person would find that the terms and conditions of his employment had been altered." Id. The court also concluded that Shaver had waived any claim on the disclosure of confidential medical information by failing to raise it in a timely manner. Id. at *8. The court further held that the disclosure claim was "outside the scope of Shaver's administrative charges." Id. Finally, the court held that Shaver's retaliation claim failed because the court believed that Shaver was trying only to "test the waters" with the reference requests, and was not actually interested in another position at the time. Id. at *7. The court thus concluded that the negative job references did not create a "submissable" retaliation claim. Id. SUMMARY OF ARGUMENT The ADA prohibits harassment based on an individual's disability, and Shaver presented sufficient evidence to survive summary judgment on this claim. Shaver is protected by the ADA because of his history of severe epilepsy - a history his employer had knowledge of - and because his employer regarded him as substantially limited in the major life activity of thinking. There also can be little question that Shaver was harassed because of this disability when he was called "platehead," "stupid," "playing with half a brain," and told he was not "playing with a full deck" on a daily basis by supervisors and co-workers alike despite frequently complaining about these comments to all levels of management. This harassment was severe or pervasive in that it occurred daily, involved the illegal disclosure of confidential medical information, was targeted directly at Shaver, and was aimed at undermining his ability to perform his job. With respect to Shaver's retaliation claim, by failing to view the evidence in the light most favorable to Shaver, the district court erroneously found that Shaver was trying only to "test the waters" by requesting a reference and was not actually seeking other employment. In any event, Shaver is not required to show that he was actively seeking another job to prevail on this retaliation claim. Although such a showing might affect the measure of Shaver's damages, it is irrelevant to establishing Salem's liability for retaliation. ARGUMENT I. Shaver Presented Sufficient Evidence of Disability-Based Harassment. The ADA Prohibits Disability-Based Harassment. The ADA prohibits harassment based on an individual's disability. The ADA provides that an employer may not "discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (emphasis added). Title VII of the Civil Rights Act of 1964 contains almost identical language making it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]". 42 U.S.C. § 2000e-2(a) (emphasis added). The Supreme Court has recognized that this language in Title VII prohibits harassment. See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986) (Title VII violation established by proof that discrimination based on sex created a hostile or abusive work environment); Patterson v. McLean Credit Union, 491 U.S. 164, 180 (1989) ("[H]arassment in the course of employment is actionable under Title VII's prohibition against discrimination in the 'terms, conditions, or privileges of employment.'") (emphasis added). As two circuits have explicitly held, and as this Court has assumed, the parallel language in the ADA likewise prohibits disability-based harassment. See Fox v. Gen'l Motors Corp., 247 F.3d 169, 175 (4th Cir. 2001) ("[W]e have little difficulty in concluding that the ADA, like Title VII, creates a cause of action for hostile work environment harassment."); Flowers v. S. Reg'l Physician Servs., 247 F.3d 229, 234 (5th Cir. 2001) ("we follow the growing consensus that our harassment jurisprudence be extended to claims of disability-based harassment."); Jeseritz v. Potter, 282 F.3d 542, 547 (8th Cir. 2002) (assuming for purposes of analysis that ADA harassment claim exists and "would be modeled after the similar claim under Title VII") (quotation omitted); Wallin v. Minn. Dep't of Corr., 153 F.3d 681, 687-88 (8th Cir. 1998) (same); see also Cannon v. Univ. of Chi., 441 U.S. 677, 696-98 (1979) (appropriate to assume Congress was aware of manner in which statutory language has been interpreted by the courts in drafting subsequent legislation and "reflects their intent" to have the new legislation interpreted similarly). Indeed, no circuit has held to the contrary. Shaver Satisfies the Elements of a Disability-Based Harassment Claim. To establish a claim for disability-based harassment by supervisors, a plaintiff must show that (1) he is a qualified individual with a disability (2) who was subjected to unwelcome harassment (3) based on his disability (4) that was severe or pervasive enough to affect a term, condition, or privilege of his employment. See Flowers, 247 F.3d at 235-36; Fox, 247 F.3d at 177; Bradley v. Widnall, 232 F.3d 626, 631 (8th Cir. 2000). Shaver has satisfied all of these elements. (3) 1. Shaver is a Qualified Individual with a Disability. It is undisputed that Shaver is qualified to perform his position as an Optimizer for Salem. Indeed, Shaver was hired for the position and performed adequately for over two years until his termination - which was the result of alleged insubordination rather than poor job performance. Moreover, assistant supervisor Cook testified that he considered Shaver to be "a good worker," and supervisor Westerman testified that Shaver worked hard. (App. at 700, 708; Cook Dep. at 19-20, 49; App. at 1159; Westerman Dep. at 57.) Shaver also is disabled under the terms of the statute. Disability is defined by the ADA as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Shaver satisfies the last two prongs. The "record of" provision of the disability definition applies where the individual has a history of a physical or mental impairment that, at some point in the past, substantially limited one or more major life activities. 29 C.F.R. § 1630.2(k) (defining "record" to include "history"); see, e.g., McKenzie v. Dovala, 242 F.3d 967, 972 (10th Cir. 2001) (plaintiff must show that "at some point her impairment actually did substantially limit [a major life activity]"). Shaver's epilepsy, prior to his surgery in 1995, was a physical impairment that substantially limited the major life activities of sleeping, speaking, walking, and working. See, e.g., Otting v. J.C. Penney Co., 223 F.3d 704, 711 (8th Cir. 2000) (plaintiff with epilepsy was substantially limited in the major life activities of seeing, speaking, and walking). Prior to his surgery, there can be no question that Shaver's epilepsy was severe, as he experienced grand mal seizures at night in his sleep. See Tate v. Apfel, 167 F.3d 1191, 1194 n.3 (8th Cir. 1999) ("'A grand mal seizure is characterized by a loss of consciousness with generalized tonic-clonic seizures. A tonic-clonic seizure is a spasm consisting of a convulsive twitching of the muscles.'") (citation omitted). After a seizure, Shaver would experience disorientation, loss of appetite, and excessive sleeping as he would often sleep for more than a day following a seizure. Indeed, he needed major surgery to control the epilepsy to a point where he could go off disability benefits and enter the workforce. Shaver's epilepsy was at least as severe as the epilepsy experienced by the plaintiff in Otting, who experienced two to three seizures a month, lasting from 30 seconds to two minutes, during which she was unable to see, speak, or walk and felt the effects of the seizures for as long as 36 hours. 223 F.3d at 709-10. This Court found that Otting was disabled by her epilepsy. Id. See also Lawson v. CSX Transp. Inc., 245 F.3d 916, 927 (7th Cir. 2001) (jury issue exists on record-of-disability claim where diabetes substantially limited plaintiff's ability to work as plaintiff had recurring medical conditions and was unable to maintain any significant employment for a number of years). Furthermore, Salem knew about this record of epilepsy. (4) Shaver's assistant supervisor Cook became aware of Shaver's condition in June 1998, when he accompanied him to the hospital for a work-related injury. Through Cook, and Cook's subsequent illegal disclosure of this information to others at Salem, the company was aware that Shaver had a record of a disability that resulted in brain surgery and the surgical implant of metal plates into his head. Additionally, Shaver's doctor followed up the injury with a letter to Salem on July 23, 1998. The letter clearly set forth that Shaver had epilepsy, that he had a history of seizures, and that his epilepsy was so severe that he had needed brain surgery to help minimize the effects of the impairment. There can be no serious contention that this document, in the possession of defendants, does not constitute a "record of" a disability. See McKenzie, 242 F.3d at 972-74 (physicians' reports of past mental problems of which employer had knowledge sufficient to create jury issue as to existence of record of disability). Shaver is also covered by the statute because he was regarded by Salem as having a disability. This type of coverage is closely intertwined with record-of coverage, reflecting a desire to "combat the effects of erroneous but nevertheless prevalent perceptions" with respect to individuals who, "at present," have "no actual incapacity." School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 (1987) (citation and quotation omitted); see also Davidson v. Midelfort Clinic, 133 F.3d 499, 509 (7th Cir. 1998) (coverage extends to "people who have recovered from previously disabling conditions . . . but who may remain vulnerable to the fears and stereotypes of their employers"). Salem and its employees perceived Shaver as having an impairment - epilepsy - that substantially limited the major life activity of thinking. Shaver's supervisors and co-workers constantly referred to him as "platehead," a reference to the surgical device implanted as a result of Shaver's epilepsy. Management and co-workers alike perceived that this impairment substantially limited Shaver's cognitive functioning as compared to the average person. See Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045 (8th Cir. 2002) ("ability to perform cognitive functions on the level of an average person" is a major life activity). Indeed, Shaver's supervisors would refer to him as "dumb" or "stupid" and say that he was not "playing with a full deck," was "only playing with half a brain," and was too stupid for a position somewhere else. Shaver was also treated by one supervisor as if he were mentally handicapped. Other employees were no better, believing that Shaver "pissed his pants and forgot who he was" when the microwave was turned on and that he was "somewhat of a retarded person." (See supra at 5-6.) These comments and actions demonstrate that the company perceived Shaver's epilepsy as substantially limiting his ability to think - to the point of mental retardation and disorientation. These condescending statements reflect precisely the kind of "attitudinal barriers" that are as "handicapping as are the physical limitations that flow from actual impairment." 29 C.F.R. pt. 1630 App. §1630.2(l) (quotation and citation omitted); (5) see also Doane v. City of Omaha, 115 F.3d 624, 628 (8th Cir. 1997) (plaintiff was regarded as substantially limited in the ability to see where decision-maker acknowledged that he perceived the plaintiff's visual problem as a significant limitation), overruled on other grounds by Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir. 2001) (employee with numerous back injuries may have been regarded as substantially limited in working where supervisor referred to him in a memo as a "problem person" with a "back case," his performance evaluations dropped, and he was invited to retire). The Harassment was Unwelcome. There can be no genuine dispute that the harassment Shaver suffered was unwelcome. Shaver asked both management and co-workers alike to stop referring to him as "platehead," including "half or better of the personnel on the B shift at the time." (App. at 980, 982, 991-92; Shaver Dep. at 65-68, 74-75, 111-15.) Still, the maintenance crew, some of the cleanup crew, and some of the supervisors continued to refer to Shaver as "platehead," and one supervisor even laughed when Shaver asked him to stop. (Id.; App. at 825; Harrell Dep. at 11). Shaver also informed the mill manager Robbie McKenzie about the problem, after which the harassment only stopped for approximately two to three weeks - then resumed and became even more frequent. (6) (App. at 980; Shaver Dep. at 65-68.) Another employee also informed at least one supervisor that Shaver did not like being called "platehead." (App. at 1005; Stidham Dep. at 13-14.) The Harassment was Based on Shaver's Disability. The harassment here was based on Shaver's epilepsy. The references to Shaver as "platehead" refer to metal plates that were surgically implanted in his head to control his epilepsy. See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997) ("Whether [the company] fired [plaintiff] because he suffered from epilepsy or because of the 'specific attributes' of his disease, i.e., his seizures, is immaterial . . . the undisputed facts demonstrate that [the employer] discharged [plaintiff] because of a disability."). Were it not for Shaver's record of this disability, his supervisors and coworkers would not have had reason to call him this name. Indeed, the metal plates in Shaver's head are directly attributable to his history of epilepsy. See Fox, 247 F.3d at 179 ("terms such as 'handicapped MF,' and 'hospital people,' expressly referenced their disabilities and resulting medical restrictions" and were therefore "abuse directly attributable to [plaintiff's] medical condition"). In addition, the degrading comments that were directed at Shaver such as "stupid," not "playing with a full deck," and only "playing with half a brain" were directed at his ability to think - the perception being that because he had surgery in which part of his brain was removed, he could not cognitively function on par with his co-workers. The Harassment Affected a Term, Condition, or Privilege of Employment. For harassment to be actionable, it must be severe or pervasive enough to affect the terms, conditions, or privileges of employment. A plaintiff must demonstrate that "the workplace is permeated with discriminatory intimidation, ridicule, and insult." Duncan v. Gen. Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002) (citation and quotation omitted), cert. denied, 123 S. Ct. 1789 (2003). The harassment must be "severe or pervasive" both subjectively and objectively. Id. The subjective component is not at issue here; Shaver unquestionably found his working environment to be hostile and complained about the constant intimidation, ridicule, and insult to which he was subjected. (See supra at 5-6). Shaver was angered and aggravated by the term "platehead." (App. at 982; Shaver Dep. at 73.) Shaver would think about this degrading name and lost sleep because of the ridicule to which he was subjected, and he felt pressure every day to prove to others that he was not stupid (App. at 987, 992; Shaver Dep. at 95-96, 116.) Shaver also believes that the harassment affected possible promotional opportunities that would have been available to him had he not been thought of as "not playing with a full deck" or using only "half a brain." (App. at 998; Shaver Dep. at 139-40). From an objective standpoint, there is no question that the harassment here was pervasive. Shaver was taunted with the term "platehead" on a daily basis for over two years by both supervisors and co-workers. For example, a shift supervisor introduced Shaver to new employees as "platehead," called him this name every day, and laughed when Shaver asked him to stop. An assistant supervisor referred to Shaver as "platehead" on a daily basis, including the final day of Shaver's employment. All of the maintenance men at the mill also called Shaver "platehead" as well as at least some of the cleanup crew. But the verbal assault did not stop there. Shaver's disability and subsequent brain surgery resulted in supervisors calling him "stupid," (7) saying that he was only "playing with half a brain," and not "playing with a full deck," and treating him as if he were mentally retarded. (See supra 4-5.) No reasonable person should be expected to work in this type of environment. The harassment was also severe enough to alter the conditions of Shaver's employment and create an abusive working environment. It is true that the harassment that took place here was verbal in nature. Nonetheless, this type of constant and demeaning verbal barrage to which Shaver was subjected on a daily basis by supervisors and coworkers alike is exactly the type of behavior that the ADA was designed to prevent. See, e.g., 42 U.S.C. § 12101(b) ("It is the purpose of this chapter . . . to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities"). (8) This Court has recognized that constant verbal harassment can rise to the level of actionable harassment under Title VII (and thus, by analogy, under the ADA as well). See Ross v. Douglas County, 234 F.3d 391, 397 (8th Cir. 2000) (upholding jury verdict in favor of plaintiff where there was evidence at trial that employer "constantly referred to [plaintiff] by a racial epithet"); Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997) (derogatory gender-based comments occurring on a frequent basis enough to create triable issue of fact on harassment claim); Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 356 (8th Cir. 1997) (Court considers "only the evidence of racial epithets and the overt racial tone of certain comments" in holding that employee was subjected to racially hostile work environment); see also Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 966 (8th Cir. 1993) (holding that judgment should be entered for plaintiff on sexual harassment claim, Court stated that "[n]o female worker must endure continual verbal abuse"). Other courts have also concluded that acts of frequent verbal insults and jokes can constitute harassment. See, e.g., Miller v. Kenworth, 277 F.3d 1269, 1276 (11th Cir. 2002) ("As the Seventh Circuit has held, it is 'repeated incidents of verbal harassment that continue despite the employee's objections [that] are indicative of a hostile work environment' and not simply some 'magic number' of racial or ethnic insults.") (quoting Shanoff v. Ill. Dep't of Human Servs., 258 F.3d 696, 704 (7th Cir. 2001)); Boutros v. Canton Reg'l Transp. Auth., 997 F.2d 198, 200 (6th Cir. 1993) (finding jury question existed on issue of national-origin harassment where the record reflected "numerous disparaging ethnic stereotypical epithets [that] were directed towards [plaintiff] or stated in his presence, either by or with the knowledge of his supervisors, throughout his term of employment"); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 873 (9th Cir. 2001) ("we hold that a reasonable man would have found the sustained campaign of [sexually oriented] taunts, directed at [plaintiff] and designed to humiliate and anger him, sufficiently severe and pervasive to alter the terms and conditions of his employment"). At a minimum, then, the stream of disability-related names and insults directed at Shaver creates a question for the factfinder as to whether Shaver was subjected to a hostile working environment. Significantly, this harassment would never have occurred if Shaver's employer had not illegally disclosed confidential medical information about Shaver's brain surgery and metal plates. C.f., Bundy v. Jackson, 641 F.2d 934, 945 (D.C. Cir. 1981) (noting that harassment "always represents an intentional assault on an individual's innermost privacy"). Such a disclosure by the company is a clear violation of the ADA, which requires that "[a]n employer must keep any medical information on applicants or employees confidential" including "medical information that an individual voluntarily tells the employer." EEOC, Technical Assistance Manual on Title I of the ADA, 8 FEP Manual (BNA) 405:6981, 7201-02 (Jan. 27, 1992) (emphasis in original). (9) See also 42 U.S.C. § 12112(d); 29 C.F.R. § 1630.14(d). Had Cook complied with the ADA and not improperly disclosed this information, it is likely that none of this harassment would have occurred. And because the illegal disclosure was advanced by someone in a position of authority and trust, the harassment was that much worse. See, e.g., Delph, 130 F.3d at 355 ("The two supervisors were primarily responsible for creating and maintaining the racially hostile atmosphere at [the company], which makes the behavior all the more egregious."). Additionally, the comments here were not simply the result of joking or employee banter. First, the degrading remarks were targeted specifically at Shaver. See, e.g., Delph, 130 F.3d at 356 ("[T]his is not a situation where racial jokes and innuendo were merely bandied about the workplace with no particular target, or where [plaintiff] was called names behind his back but was unaware of it. Much of the racially hostile language not only was used in [plaintiff's] presence, but was directed at him."). In addition, the remarks were connected to Shaver's ability to do his job. Harassment that goes so directly to a plaintiff's ability to perform the job inherently undermines that individual's performance. See, e.g., Smith, 109 F.3d at 1264 ("Even [harassing] conduct that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing their careers.") (quotation and citation omitted); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 677 (7th Cir. 1993) ("unlawful racial abuse gradually eroded [plaintiff's] self-esteem and adversely affected his job performance"). And these comments were not simply idle observations of Shaver's disability - they were remarks intended to degrade and humiliate Shaver and question his intelligence. Such degrading comments are further evidence of the severity of the harassment here. See Burns, 989 F.2d at 965 (degrading comments support plaintiff's claims of sexual harassment). Indeed, the facts of this case are remarkably similar to those confronted by the Fourth Circuit in Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001). In Fox, an individual experienced a non-work-related injury to his back and was restricted to light duty by his doctor. Id. at 172. As a result of the injury, co-workers and supervisors subjected the plaintiff to a barrage of verbal insults. The plaintiff and other disabled workers were called "handicapped MF's," "handicapped people," hospital people," and "911 hospital people." Id. at 173-74. And at a meeting held to discuss the plaintiff's back problems, the general foreman asked "[h]ow in the F---- do you take a S-H-I-T with these restrictions?" Id. at 173. The Fourth Circuit held that these facts, along with other harassment that was largely verbal, were sufficient to support a jury finding of disability harassment, stating, "[W]e are presented with evidence not of a few isolated incidents of harsh language, teasing or insensitivity, but rather of regular verbal harassment and occasional physical harassment over a period of nearly ten months directed at [plaintiff] because of his disability." Id. at 179. The facts of Shaver's case are arguably even more severe, as Shaver was subjected daily to discriminatory comments on the basis of his disability for over two years, despite having clearly expressed his displeasure with such remarks. See also Flowers, 247 F.3d at 236-39 (sufficient evidence to support jury verdict for employee harassed as a result of HIV status where harassment included verbal insults and other degrading behavior). The District Court Improperly Rejected Shaver's Retaliation Claim. In addition to prohibiting discrimination on the basis of a disability, the ADA - like Title VII - prohibits an employer from retaliating against an individual who has filed a charge of discrimination. 42 U.S.C. § 12203(a). In this case, the elements of a retaliation claim require that an employee show that (1) he engaged in protected activity, (2) the employer took adverse action against him, and (3) there is a causal connection between the two events. See Smith v. St. Louis Univ., 109 F.3d 1261, 1265-1266 (8th Cir. 1997). After Shaver filed his original EEOC charge, while he was looking for another job, a supervisor told two prospective employers that Shaver was "looking for a get-rich-quick scheme" and was involved in "suing companies." (App. at 1094-95; Van Kirk Dep. at 40-41; App. at 1192, 1198; Wright Dep. at 28, 51.) This type of negative reference constitutes illegal retaliation. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (former employees may bring suit against their previous employers for post-termination retaliation including negative job references); Smith, 109 F.3d at 1266 (negative job references to prospective employers can establish retaliation under Title VII). Indeed, the negative job reference here specifically addresses the protected activity - "suing companies" - and there can be no question that Salem's retaliatory action was triggered by Shaver's protected activity of filing an EEOC charge. The court improperly rejected this claim on the basis that Shaver was trying only to "test" Salem with the reference requests and was not actually interested in another job at that time. Dist. Ct. Op. at *7. However, Shaver proffered evidence that these job inquiries were genuine and not manufactured. Indeed, the prospective employers both testified that Shaver had sought employment with them and that they contacted Salem for a reference. (App. at 1089, 1093-94; Van Kirk Dep. at 17-19, 36-40; App. at 1187, 1191-92, 1195; Wright Dep. at 6-7, 24-28, 38-39.) The court thus clearly made a factual finding that was inappropriate at the summary judgment stage of the litigation. Even assuming that Shaver was using the reference requests as a way to determine Salem's response, however, Salem's unlawful retaliation is nonetheless prohibited by the ADA. Giving negative references in retaliation for protected activity is illegal, regardless of whether the individual was genuinely seeking employment, because it is the conduct of the employer that is at issue in determining liability, not the motivation of the employee. See Kyles v. J.K. Guardian Sec. Sys., 222 F.3d 289, 298 n.5 (7th Cir. 2000) (noting in a hiring discrimination case that many individuals "apply for jobs that they have no genuine intent to accept if offered to them. They apply to inform themselves of alternate careers, for experience in interviewing . . . and for a whole host of other reasons. When an employer adversely segregates or categorizes such individuals on the basis of race, the wrong that Title VII proscribes still occurs."). The measure of damages for Salem's violation of the anti-retaliation provision might be affected by whether the negative reference caused Shaver not to get a job, but there should be no question that he would be entitled to some relief. See Kyles, 222 F.3d at 300 ("The fact that they had no interest in actually working for the company certainly speaks to the nature and extent of their injuries as well as the appropriate relief. . . . But it does not rule out the prospect that they were injured.") (original emphasis). Indeed, interpreting similar language in the Fair Housing Act, the Supreme Court has held that individuals who are falsely told for discriminatory reasons that housing is unavailable are entitled to relief even if they have no genuine interest in the property. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982) (A victim of discriminatory misrepresentation under the Fair Housing Act "has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the Act's provisions" even if the victim "approached the real estate agent fully expecting that he would receive false information, and without any intention of buying or renting a home."). Furthermore, even if Shaver suffered no compensable injury as a result of Salem's retaliation, he would still be entitled to equitable relief, including an injunction prohibiting Salem from future acts of retaliation against him and others who might engage in protected activity. See, e.g., Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1303-04 (8th Cir. 1995) (even where monetary relief was precluded by ADA, injunctive relief may be considered by district court on remand); Bruso v. United Airlines, Inc., 239 F.3d 848, 864-65 (7th Cir. 2001) (employee who established claim of Title VII retaliation entitled to "injunction prohibiting further retaliation"). Thus, even under the court's improper factual finding that Shaver was only trying to "test the waters," summary judgment should not have been granted on Shaver's retaliation claim. CONCLUSION For the foregoing reasons, the Commission urges this Court to reverse the district court's grant of summary judgment on Shaver's disability harassment and retaliation claims. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ___________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 6989 words. See Fed. R. App. P. 32(a)(7) (B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed R. App. P. 32(a)(5). _____________________ Joseph A. Seiner June 4, 2003 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 4th day of June, 2003, I caused (1) copies of the attached brief, (2) a diskette (which has been scanned for viruses and is virus-free) containing the brief in a PDF format, and (3) my appearance to be sent via first class U.S. mail to: Clerk of Court Marie L. Gockel U.S. Court of Appeals Bratcher & Gockel for the Eighth Circuit 1100 Main Street Thomas F. Eagleton Courthouse P.O. Box 26156 Room 24.329 Kansas City, MO 64196-6156 111 South 10th Street Attorney for Plaintiff-Appellant St. Louis, MO 63102 Thomas M. Hanna McMahon & Berger 2730 N. Ballas Road Suite 200 St. Louis, MO 63131 Attorney for Defendant-Appellee __________________________ Joseph A. Seiner EEOC / Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 June 4, 2003 1. We take no position on any other issue raised in this appeal. 2. Citations to App. refer to the designation of record on appeal submitted by Shaver. 3. The harassment test for supervisors is appropriate here because much of the harassment at issue was perpetuated by supervisors at the mill. See Bradley, 232 F.3d at 631 ("[Plaintiff] need not show that the [defendant] knew or should have known of the harassment, however, because the majority of the conduct at issue in this case allegedly occurred at the hands of Bradley's supervisors."). Even if the co-worker test for liability were applied, however, there would be no question that Salem was aware of the harassment which took place, yet failed to take appropriate remedial action. Indeed, Shaver informed the mill manager as well as at least two supervisors about the problem, but the harassment continued. 4. While Salem unquestionably had knowledge that Shaver had a history of a substantially limiting impairment, the statute contains no knowledge requirement - all that is required for purposes of coverage is a history of a disability. See 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(k). To establish liability for disability based harassment, there must be evidence that the employer was aware of the individual's history sufficient to support the conclusion that the harassment was "because of" that history. The evidence is more than sufficient in this case. 5. The Supreme Court has acknowledged the barriers faced by individuals suffering from epilepsy. See Arline, 480 U.S. at 284 ("Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious."). 6. Shaver's consistent complaints about the company's harassing behavior and Salem's failure to respond adequately demonstrate that Salem cannot satisfy the Faragher and Ellerth affirmative defense. Shaver clearly took advantage of any "preventive or corrective opportunities provided by the employer," yet Salem did virtually nothing to correct the problem. See Todd v. Ortho Biotech, Inc., 175 F.3d 595, 597 (8th Cir. 1999) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). 7. Even assuming the term "stupid" was not directly related to Shaver's epilepsy, when viewed in the context of the other comments, it is tinged with discriminatory animus. See, e.g., Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 799 (8th Cir. 2003) ("All instances of harassment need not be stamped with signs of overt discrimination to be relevant under Title VII if they are part of a course of conduct which is tied to evidence of discriminatory animus . . . . [A co-worker's] early comments, in which she demeaned Hispanics and specifically referred to both Hispanics and [plaintiff] as 'stupid,' are sufficient for a fact-finder to find that her ongoing harassment of [plaintiff] was based on her national origin." (quotation omitted)). 8. Indeed, Congress was aware of the myths and stereotypes surrounding epilepsy. See 136 Cong. Rec. S7422, S7444 (1990) (daily ed. June 6, 1990) (statement of Sen. Harkin) ("[T]he fear of epilepsy was once so great that people with this disease were believed to be possessed by the devil and were shut out of schools and the workforce."). 9. Although the district court rejected on procedural grounds Shaver's separate claim for violation of the ADA's confidentiality provisions, at a minimum, Salem's illegal disclosure of private information adds to the severity of the harassment in this case.