_____________________________________________ No. 11-14541 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. SUMMER CLASSICS, INC., Defendant-Appellee. ____________________________________________________________ On Appeal from the United States District Court for the Northern District of Alabama ___________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Appellate Services 131 M St., NE, Room, 5th fl. Washington, DC 20507 202-663-4718 CERTIFICATE OF INTERESTED PERSONS Acker, William M., United States District Judge Bean, Julie, attorney for EEOC Equal Employment Opportunity Commission, plaintiff-appellant Gantz, Julie L., attorney for EEOC Guerrier, Charles, attorney for EEOC Johnson, Brice Martin, attorney for defendant-appellee Kopka, Ylda Marisol, attorney for EEOC Lee, James L., attorney for EEOC Lopez, P. David, EEOC General Counsel Morrow, Eunice H., attorney for EEOC Pope, N. Dewayne, attorney for defendant-appellee Reams, Gwendolyn Young, attorney for EEOC Smith, C. Emanuel, attorney for EEOC Vail, Daniel T., attorney for EEOC Wheeler, Carolyn L., attorney for EEOC I hereby certify that this list names each person and entity that, as far as the EEOC knows, has an interest in this case and appeal. _______________________________ Julie L. Gantz December 12, 2011 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission respectfully requests that the Court hear oral argument in this case. This appeal raises important questions regarding when certain documents filed with the EEOC constitute a "charge" of discrimination and how to determine whether a charge has been filed within the applicable limitations period. The Commission believes that oral argument will assist the Court in exploring these fact-specific issues, and aid the Court in considering the EEOC's contention that the district court committed reversible error by (1) using an incorrect date to determine that the charging party's charge was untimely; and (2) failing to recognize that an Intake Questionnaire filed by the charging party also constituted a "charge" under the Supreme Court's decision in Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv TABLE OF RECORD REFERENCES IN THE BRIEF. . . . . . . . . . . . . . . . . . . . . . . vii STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. Magistrate Judge's Report and Recommendation. . . . . . . . . . . . . . . . . .9 D. District Court's July 5, 2011, Decision. . . . . . . . . . . . . . . . . . 11 E. District Court's August 3, 2011, Decision. . . . . . . . . . . . . . . . . . 13 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 THE DISTRICT COURT COMMITTED REVERSIBLE ERROR IN RULING THAT LOWE HAD NOT FILED A TIMELY EEOC CHARGE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 A. Because Lowe did not receive unequivocal notice that he was terminated until after March 26, 2007, his September 5 charge was filed within 180 days of the alleged discriminatory act - and thus was timely filed. B. Even if the February 21 letter started the 180-day clock running, Lowe filed a timely charge, since his July 21 Intake Questionnaire also constitutes a charge and was filed within the requisite 180 days. . . . . . . 28 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . . . . . . . . . . . 39 CERTIFICATE OF SERVICE TABLE OF CITATIONS CASES Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253 (11th Cir. 2010). . . . . . 18 Board of Trustees of University of Ala. v. Garrett, 531 U.S. 356 (2001). . . . . . . .34 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . . . . . . . 33 Brown v. Ala. Department of Transport, 597 F.3d 1160 (11th Cir. 2010). . . . . . . . .26 *Cocke v. Merrill Lynch & Co., 817 F.2d 1559 (11th Cir. 1987). . . . . . . . . . . . 22 Delaware State College v. Ricks, 449 U.S. 250 (1980). . . . . . . . . . . . . . . . . 22 Drago v. Jenne, 453 F.3d 1301 (11th Cir. 2006). . . . . . . . . . . . . . . . . . . . 18 *EEOC v. Waffle House, 534 U.S. 279 (2002). . . . . . . . . . . . . . . . . . . . . 28 Edelman v. Lynchburg College, 535 U.S. 106 (2002). . . . . . . . . . . . . . . . . . 30 *Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). . . . . . . . . . . . passim Gen'l Telephone Co. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . . . . . . . 28 *Grayson v. K Mart Corp., 79 F.3d 1086 (11th Cir. 1996). . . . . . . . . . . . . . . 21 Koon v. United States, 518 U.S. 81 (1996). . . . . . . . . . . . . . . . . . . . . 18 Lowe v. Ala. Power, 244 F.3d 1305 (11th Cir. 2001). . . . . . . . . . . . . . . . . . 33 Price v. City of New York, No. 09-4183, 2011 WL 2490966 (E.D.N.Y. June 22, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Smith v. Verizon Washington, D.C., No. 11-1301, 2011 WL 5547996 (D. Md. Nov. 10, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Street v. United Parcel Serv., Inc., No. 09-197, 2011 WL 4526753 (M.D. Ga. Sept. 28, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Steiner v. Professional Services Industrial, Inc., No. 08-723, 2009 WL 2950755 (W.D. Pa. Sept. 9, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Stewart v. Booker T. Washington Insurance, 232 F.3d 844 (11th Cir. 2000). . . . . . . 23 United States v. Brown, 332 F.3d 1341 (11th Cir. 2003). . . . . . . . . . . . . . . 18 Wilkerson v. Grinnell Corp., 270 F.3d 1314 (11th Cir. 2001). . . . . . . . . . . . 10 Williams v. CSX Transportation Co., 643 F.3d 502 (6th Cir. 2011). . . . . . . . . 13, 31 *Wright v. AmSouth Bancorporation, 320 F.3d 1198 (11th Cir. 2003). . . . . . . . .22, 27 STATUTES Americans with Disabilities Act 42 U.S.C. § 12101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 12117. . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 2000e-5(e)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1342(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 RULES AND REGULATIONS 29 C.F.R. § 1601.12(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 29 C.F.R. §§ 1601.9, 1601.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 29 C.F.R. § 1626.7(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Fed. R. App. P. 4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 OTHER AUTHORITIES Center for Disease Control and Prevention, Basic Information about HIV and AIDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act No.915.002 (July 27, 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 TABLE OF RECORD REFERENCES IN THE BRIEF Brief Page # Docket # 1, 2, 11-13, District Court Decision Granting 28 Defendant's Motion for Summary Judgment 40 1, 2, 13-17, Memorandum Opinion Denying 59(e) Motion 50 25, 31, 32, 35 1, 2 EEOC's Notice of Appeal 52 2, 9, 22 EEOC's Complaint 1 2 Defendant's Motion for Summary Judgment 15 2, 9-11 Magistrate Judge's Report and Recommendation 32 2, 11 EEOC's Objections to Report and Recommendation 33 2 Order Granting Motion for Summary Judgment 41 3 Lowe's Application for Employment 18 3, 4, 5, 6, Deposition of Larry Lowe 18<1> 8 3 Boxing Job Description 23 3, 4, 6, Deposition of Fabyanna Clark 20 7, 23, 25, 34-35 4, 33 Note from Dr. Mangieri releasing Lowe to work 18 4-5 First Release Dated 1-18-07 18 5-6 Medical Release to Dr. Turner 18 6, 23 February 21, 2007 Letter 23 6 Lowe's Claim for Unemployment Benefits 43-4 7, 22, 24 March 26, 2007 Letter 23 7, 25 Defendant's Response to Unemployment Claim 43-5 7-8, 25 Clark Notes/Chronology 23 8, 25 Audit Report Listing Lowe's termination date as 3-23-07 43-5 8, 25, 26 Summer Classics' Answer 4 8, 11 EEOC Determination Letter Finding Cause 23 8, 26 Interrogatories 15 and 16 re: post-termination Mitigation 43-8 8-9, 30, 32 Lowe's Intake Questionnaire 26-6 9 EEOC Letter enclosing Form 5 charge 26-7 9, 22 Lowe's Form 5 EEOC Charge 23 9 EEOC Letter re: Failure of Conciliation 23 25 Defendant's Brief in Support of Summary Judgment 16 25 EEOC's Opposition to Summary Judgment 26 34 Collected Public Health Materials re: HIV/AIDS 26-5 STATEMENT OF JURISDICTION The Equal Employment Opportunity Commission brought this action to enforce the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the district court had subject matter jurisdiction under 28 U.S.C. § 1331 (federal question), § 1343(a)(4) (civil rights action), and § 1345 (federal agency as plaintiff). This Court has appellate jurisdiction under 28 U.S.C. § 1291 because the decisions being appealed, R-40; R-50, resolved all claims as to all parties. The appeal is timely under Federal Rules of Appellate Procedure 4(a)(1)(B) and 4(a)(4)(B)(iv). On August 3, 2011, the district court denied the Commission's timely motion filed under Federal Rule of Civil Procedure 59(e), R-50, and the EEOC filed a notice of appeal on September 29, 2011. R-52. STATEMENT OF THE ISSUES 1. Whether the district court erred in ruling that the charging party's September 5, 2007, charge alleging discriminatory termination was untimely, where the charging party filed the charge within 180 days of the date he first received unequivocal notice that he had been terminated. 2. Whether the district court erred in determining that the Intake Questionnaire the charging party submitted to the Commission on July 31, 2007, was not a charge, where the charge reflected a "request for the EEOC to act" under the Supreme Court's decision in Federal Express v. Holowecki, 552 U.S. 389 (2008). STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from an order of the U.S. District Court for the Northern District of Alabama granting Defendant's motion for summary judgment, R. 40, and from the district court's order denying the Commission's Rule 59(e) motion to alter or amend the summary judgment ruling, R-50. See R-52. The EEOC filed a complaint on September 29, 2009, alleging that the defendant violated the ADA by terminating Larry Lowe after he declined to submit medical records regarding his HIV-positive status. R-1. The defendant filed a motion for summary judgment on November 5, 2010. R-15, 16. The magistrate judge issued a report and recommendation on May 18, 2011, recommending that summary judgment be granted to the defendant. R-32. The EEOC filed objections. R.33. The district court adopted the magistrate judge's report and recommendation on July 6, 2011, (R-40, R-41), and denied the Commission's motion for reconsideration in a memorandum opinion dated August 3, 2011. R-50. B. Statement of Facts Summer Classics is an outdoor furniture manufacturer. R-1 (Complaint at 2, ¶ 4). In August 2006, it hired Larry Lowe as a boxer in its Montevallo, Alabama, cushion plant. R-18 (Application for Employment); R-18 (Lowe Dep. 20). Lowe's duties included constructing cardboard boxes, filling them with cushions, sealing the boxes with packing tape, and carrying the boxes to the shipping area. R-23 (Boxing Job Description); R-20 (Clark Dep. 20). The job also entailed sweeping, dusting, and mopping; assisting with inventory; and "occasionally" using a box blade to open boxes. R-23 (Job Description). Lowe testified that he was never injured on the job, nor was he aware of any injuries suffered by his boxer coworkers. R-18 (Lowe Dep. 32, 33). Lowe has been HIV-positive since 1994 and receives treatment at the 1917 HIV/AIDS Clinic at the University of Alabama ("Clinic"). R-18 (Lowe Dep. 40- 41, 50-53). Beginning in mid-December 2006, Lowe took a three-and-a-half-week medical leave from Summer Classics to receive treatment for a back condition. R- 18 (Lowe Dep. 58-60). In early January 2007, Lowe informed former Human Resources Manager Fabyanna Clark that he would need to extend his leave because it was taking him longer than expected to heal due to the fact that he was HIV-positive. R-18 (Lowe Dep. 67-70, 152-53); R-20 (Clark Dep. 17). Clark, who testified that she believed HIV could be transmitted "[i]f you have a cut in your hand and there is any contact with that" or "if it comes in contact with your eye, you can get it, too" (R-20 at 19), told Lowe that he would not be permitted to return to work without a doctor's note vouching for the safety of an HIV-positive person working in his position. R-18 (Lowe Dep. 70-71). Lowe returned to work on January 17, 2007, and presented a note from his treating physician, a pain specialist, that stated: "This patient has no illness imposed limitations which will impact his occupational duties. He has been HIV positive and unless someone has unprotected sex with him there is NO probability he will pose a risk to anyone in the workplace." R-18 (1/16/07 Mangieri note) (emphasis in original); R-18 (Lowe Dep. 77-78). Clark told Lowe that she could not accept the release from the physician because he was treating Lowe for back pain and not HIV-related issues. R-18 (Lowe Dep. 82-83); R-20 (Clark Dep. 41). Clark informed Lowe that he would be placed on paid administrative leave and could return to work only after releasing his medical records and information from one of the HIV/AIDS specialists he saw at the Clinic. R-18 (Lowe Dep. 83); R-20 (Clark Dep. 54-55). Clark testified that the company was worried about Lowe's and others' safety and that "the blood would come to [sic] contact with somebody maybe." R-20 (Clark Dep. 101). Clark gave Lowe a release form that requested Lowe's HIV doctor provide Lowe's medical records and respond to five questions: "(1) Is patient HIV- positive?; (2) Are you the treating physician for patient relating to his HIV status?; (3) Based on patient's HIV status and the job description provided by employer along with this Authorization, does patient pose a significant risk to the health and safety of others in the workplace (i.e. does patient pose a significant risk of communicating an infectious disease and what is [the] possibility the disease could be transmitted by patient and the varying degrees of harm as a result)?; (4) If there is a significant risk posed to the health or safety of others in the workplace, can the risk be eliminated by reasonable accommodation? If so, what reasonable accommodations would you recommend to eliminate risk in [the] workplace?; and (5) What precautions would you recommend that employer undertake should patient be injured in the workplace?" R-18 (First Release Dated 1-18-07); R-18 (Lowe Dep. 85-92). When Lowe submitted the release form to the Clinic on January 31, a doctor at the Clinic advised him that the Clinic could not release his records to anyone except Lowe or another doctor and that it was illegal for Summer Classics to require Lowe to disclose this medical information as a condition of continued employment. R-18 (Lowe Dep. 98). When Lowe explained the Clinic's response to Clark, she told him she could not keep him as an employee without the records requested. R-18 (Lowe Dep. 101). However, Clark then drafted another release form requiring the Clinic to answer the five questions and submit the response to the company's medical director Dr. Turner, but omitted the request for additional medical records. R-18 (Authorization to Release Personal Health Information); R- 18 (Lowe Dep. 109, 114-15); R-20 (Clark Dep. 114-16). Clark informed Lowe by letter dated February 21, 2007, that he would be placed on unpaid administrative leave within 48 hours unless Dr. Turner received the medical information Summer Classics had requested. R-18 (Lowe Dep. 113). The letter states: As you know, you have now received 4 weeks of paid leave. On January 2007, we requested that you provide certain medical information relating to your current health condition. However, as of this date, we have not received any information. The purpose of this letter is to inform you that you have until Friday, February 23, 2007, to provide our Medical Review Officer with the requested information. If we have not received the requested information by 5:00 pm on Friday, we will be left with no other alternative than to place you on unpaid leave and take action up to and including termination of your employment. We hope that you can provide the information by the end of the week and that you will be able to safely return to work. R-23. Clark testified that Lowe could have returned to work after receiving the February 21 letter if he had brought in the requested medical information. R-20 (Clark Dep. 62). Lowe testified that he thought he was terminated as of February 23, 2007, because he did not provide the requested information on that date. R-18 (Lowe Dep. 116, 127, 131). Lowe filed a claim for unemployment benefits with the Alabama Department of Industrial Relations on March 11, 2007. R-43-4 (Notice of Claim and Request for Separation Information at 1). Lowe received a second letter from Clark, dated March 26, stating that he was terminated "effective on March 23, 2007 for failure to provide the medical information requested." R-23. The letter states, in relevant part: The purpose of this letter is to inform you of the status of your employment with Summer Classics. . . . When you notified the company of your intent to return to work you also informed the company that you were HIV-positive. On January 22, 2007, we placed you on paid administrative leave pending your submission to a fitness-for-duty examination by the doctor treating you for HIV. We again requested such examination on January 31, 2007. Finally, after allowing you more than four weeks (paid) to submit to such examination and provide the company's Medical Review Officer with the information requested, you still had not complied. On February 21, 2007, we provided you with a letter requesting that you submit to such examination and provide the requested information no later than February 23, 2007, or you would be placed on unpaid leave and disciplinary action up to and including termination of your employment would occur. Since the requested information was not provided by February 23, 2007, you were placed on unpaid administrative leave pending a decision by the company on the status of your employment. In view of these circumstances, the company has no alternative but to terminate your employment effective on March 23, 2007 for failure to provide the medical information requested. R-23. Clark testified that a few weeks after the February 21 letter was sent, a decision was made to terminate Lowe because he still had not supplied the requested medical information. R-20 at 63. On the employer's response to Lowe's claim for unemployment benefits, dated March 26, 2007, Clark listed Lowe's last day employed as March 23, 2007. R-43-5. Clark's communication log states under March 26: "I FedEx[ed] his termination letter as well as Cobra application forms for his insurance that we have paid all along since December 2006 when he left to have his surgery." R-23 at 2. An audit report from the company also lists Lowe's termination date as March 23, 2007. R-43-5. Summer Classics' Answer to the EEOC's Complaint states: "Summer Classics admits that Larry Lowe was employed by Summer Classics as a boxer in the Boxing Area from August 31, 2006 to March 23, 2007." R-4 at 2 (Answer ¶ 11). The EEOC's Determination Letter finding cause to believe a violation of the ADA occurred notes that Lowe was discharged on March 26, 2007. R-23. The company's interrogatories requesting post-termination mitigation information use March 23, 2007 as the operative date. R-43-8 at 3 (question 15). Lowe testified that he spoke with someone at the EEOC on January 17, 2007, when he was first sent home from work. R-18 (Lowe Dep. 122). Lowe filed an Intake Questionnaire with the Commission by mail on July 21, 2007. R-26-6. Lowe stated on the Questionnaire that he "was discriminated for HIV info not given as asked." R-26-6 at 3. Lowe explained on the Questionnaire that he was "sent home because my excuse wasn't accepted/then fired when I wouldn't give medical records to them." Id. He stated that the reason given for the discriminatory act was "[t]hat I received a notice that if I didn't supply Faby Clark my HIV medical records, I would be fired as of February 23, 2007." Id. at 4. Lowe listed a former coworker as a potential witness to the discrimination on the form. Id. at 5. He stated, "I'm also looking for counsel." Id. He attached a hand- written note to the Questionnaire, which stated: I believe that the discrimination started in January 2007, but feel as though the actual crime on Summer Classics' part came on February 20-23, 2007, when I received a certified letter from Faby Clark stating that because I would not give her HIV medical records, I was being terminated. I am in good physical health. However, since all this has started, it has made me so very depressed because all I think about is this case. It is causing me fatigue, lack of sleep and appetite including having to mentally think about my HIV constantly. R-26-6. The EEOC received the Questionnaire on July 31, 2007. R-26-6 at 7. On August 8, 2007, an EEOC Investigative Support Assistant assigned it a charge number and prepared a formal Form 5 charge for Lowe's signature. R-26-7. The Commission instructed Lowe to date and sign each copy of the charge and return it to the Birmingham EEOC office within 30 days of the date of the letter, or September 7, 2007. R.26-7. Lowe signed and dated the Form 5 charge on September 1, 2007, and the Commission received it on September 5, 2007. R-23. After conciliation failed, R-23, the Commission brought this ADA enforcement action on September 29, 2009. R-1 (Complaint at 1). C. Magistrate Judge's Report and Recommendation The magistrate judge recommended that summary judgment be granted for Summer Classics because Lowe filed a charge of discrimination on September 5, 2007, more than 180 days after February 23, 2007, the date on which the magistrate judge determined Lowe was terminated. R-32 at 3, 8. The magistrate judge asserted that it was "undisputed that Lowe was terminated on February 23, 2007." Id. The magistrate rejected the Commission's argument that Lowe's July 31, 2007, Intake Questionnaire and handwritten statement constituted a timely charge under Federal Express Corporation v. Holowecki, 552 U.S. 389 (2008). Id. at 4. The magistrate noted that Holowecki was a case brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), which does not define what a "charge" is, while the ADA "sets out the requirements for a charge" by incorporating Title VII's charge definition which provides that charges "shall be in writing under oath or affirmation." R-32 at 6-7 (quoting 42 U.S.C. § 2000e-5(b)). The magistrate stated that "the failure to verify a charge is grounds for granting summary judgment." Id. at 7. The magistrate ruled that "[t]he questionnaire fails because it is not sworn, as required by the statute in this case." Id. at 8. The magistrate noted that "[t]he addition of a sworn statement was also critical in the court's judgment in Holowecki, which accepted the questionnaire as a charge. Thus, even under Holowecki, the questionnaire fails." Id. The magistrate said that Wilkerson v. Grinnell Corp., 270 F.3d 1314 (11th Cir. 2001), did not support the Commission's position because, in that case, the Questionnaire was sworn. Id. at 8. The magistrate also noted that "unlike the questionnaire in Holowecki, here there is no request for action." Id. The Commission filed objections to the magistrate judge's report, noting that Lowe's termination date was March 23, 2007. R-33 at 4.<2> D. District Court's July 5, 2011 Decision The district court adopted the magistrate's report and recommendation. R- 40 at 1. The court held that Lowe's Intake Questionnaire could not be treated as a charge of discrimination. Id. at 3. According to the court, "[t]he fact that the word 'charge' prominently appears in the 'Intake Questionnaire' shows that a sharp distinction exists between an 'Intake Questionnaire' and a 'Charge of Discrimination.'" Id. at 2. The court noted that the EEOC's Form 5 is entitled "Charge of Discrimination" and has a place for the filer to swear and affirm the charge. Id. at 3. In contrast, "[t]he 'Intake Questionnaire' conspicuously refers to the 'charge' as being a future occurrence." (emphasis in original). The court asserted that the EEOC "cannot make up special procedural or substantive rules for itself to suit its circumstances." Id. The court stated that the EEOC's regulations on what must be contained in a charge and that allow for amendment or elaboration of a charge do not suggest "that an 'Intake Questionnaire' is, or can be, a substitute for a 'Charge of Discrimination.'" Id. The court stated that on August 8, 2007, the Commission mailed Lowe a letter stating that the agency had received his "'correspondence and accordingly, we have drafted a charge.'" Id. at 4. The letter instructed Lowe to sign each copy of the enclosed charge the EEOC drafted after receiving Lowe's correspondence. The court noted that the EEOC instructed Lowe to return the signed charge of discrimination within 30 days of its August 8, 2007, letter. September 5 was within the EEOC's instructed deadline but more than 180 days from the February 21 letter to Lowe requiring him to submit medical documents. R-40 at 5. Accordingly, the court ruled, because 180 days from the February 21, 2007, letter "expired" on August 21, 2007, and Lowe's Form 5 charge was not received by the Commission until September 5, it was untimely. Id. at 2, 5. According to the court, "[t]he complaining party, arguing now through the EEOC, followed the advice of the EEOC, and overlooked or ignored the clear requirements of the applicable federal statute, which plainly requires a 'charge' to be filed within 180 days of the adverse employment decision." Id. at 5. The court stated that, if it "overlooked" or "forgave" this error and allowed an extension of the 180-day deadline, "then any and every 'Intake Questionnaire' can be readily transmogrified into, or treated as, a 'Charge,' and Form 5 can be dispensed with entirely." Id. The court also stated that "[t]he fact that the EEOC may have inadvertently mislead [sic] the complaining party provides no escape from a statute of limitations that is clear and absolute." Id. The court added, "EEOC understandably may feel some obligation to complainant, but it asks for too much. Its error is attributable to its client." Id. E. District Court's August 3, 2011, Decision The district court subsequently denied the Commission's motion to alter or amend the judgment under Rule 59(e). R-50 at 16. The district court rejected the EEOC's argument that Lowe's Intake Questionnaire qualifies as a charge of discrimination because it met the minimum requirements and included a request for the EEOC to act. Id. at 3. Because the EEOC's August 8, 2007, letter indicated that it had taken no action on the Intake Questionnaire, the court maintained that, "[i]f EEOC wants this court to take the 'Intake Questionnaire' as a clarion call for action, how does EEOC explain its lack of action between the receipt of the 'Intake Questionnaire' on July 21, 2007, and its letter of August 8, 2007?" Id. The district court noted that a recent Sixth Circuit decision, Williams v. CSX Transportation Co., 643 F.3d 502 (6th Cir. 2011), held that "a filing is a charge if an 'objective observer' would believe that the filing 'taken as a whole' suggests that the filer requests the agency to activate its machinery and remedial processes." R-50 at 4 (quoting Williams). According to the court, Lowe asked the EEOC to act only in his September 5, 2007, Charge of Discrimination but "requested no action on July 21, 2007, in his 'Intake Questionnaire.'" In the court's view, "EEOC's machinery was certainly not activated by anything Mr. Lowe said on July 21, 2007." Id. The court noted that Lowe "only answered EEOC's questions" rather than call the Commission to action. Id. The court ruled that Lowe's statement that he was looking for a lawyer did not amount to a call to action. Id. The court pointed out that the Commission's new (current) intake form contains two boxes-one box can be checked if the filer wants to file a charge of discrimination and explains that the employer will be given notice of the charge; the other box can be checked where the filer would like to discuss his situation with an EEOC employee before deciding whether to file a charge. Id. at 5 (quoting the current form). The court stated, "If Mr. Lowe had used the current 'Intake Questionnaire,' he might have checked Box 1, and by doing so, would have requested action by the EEOC." Id. at 5-6. The district court rejected the EEOC's alternative argument that the September 5 Form 5 charge was timely because the limitations period did not begin to run until Lowe received the March 26, 2007, letter notifying him that his termination was effective on March 23, 2007. The district court noted that the magistrate judge ruled that it was "undisputed that Lowe was terminated on February 23, 2007." R-50 at 2 (quoting Report), and faulted the Commission for not challenging that in a partial motion for summary judgment. Id. at 6. In the court's view, "Summer Classics has always taken the position that the triggering date was February 23, 2007." R-50 at 7. The court regarded the March 26, 2007, letter as written "for its internal administrative or bookkeeping purposes, and for no substantive purpose." Id. at 9; see also id. at 13 (calling the March 23 date "the internal bookkeeping 'termination date'"). The court noted that "Mr. Lowe had been told in advance of February 23, 2007, that he would be terminated on February 23, 2007, and that he would not be paid after February 23, 2007." Id. at 7. The court also pointed out that Lowe interpreted the February letter as a termination letter and "has never asserted that March 23, 2007, was the date of his termination, or was the date of any other adverse or discriminatory action." Id. The court quoted a portion of the February 21 letter stating that, "'[i]f we have not received the requested information by 5:00 pm on Friday, we are left with no other alternative than to place you on unpaid leave and take action up to and including termination of your employment. We hope that you can provide the information by the end of the week and that you will be able to safely return to work.'" R-50 at 8. The court acknowledged that, in responding to Lowe's unemployment claim, Summer Classics listed Lowe's last date of employment as March 23, 2007. But the court concluded that "[t]his was merely a repetition of a routine bookkeeping entry and is facially irreconcilable with the March 11, 2007 date upon which Mr. Lowe's compensation claim was filed." Id. at 8. The court also quoted part of the March 26 letter to Lowe, which stated that "'the company has no alternative but to terminate your employment effective on March 23, 2007, for failure to provide the medical information requested. You received your last pay check from the company on February 23, 2007. No further payments will be made.'" R-50 at 9 (emphasis in district court opinion). According to the court, "there is no evidence of any real adverse action whatsoever taken by Summer Classics vis-à-vis Mr. Lowe, at any time after February 23, 2007. Summer Classics' letter of March 26, 2007, merely confirmed what had happened on February 23, 2007." Id. (emphasis in original). The district court found it dispositive that Lowe believed that he was terminated on February 23, 2007. R-50 at 12. The court emphasized that Lowe stated that he was fired on February 23 in his filings with the EEOC and in his deposition. Id. In the court's view, Lowe's admission that he was fired on February 23 "is proven by words out of his own mouth, by his own written statements, and the fact that he could not have filed a claim for unemployment compensation on March 11, 2007, if his termination date had not yet arrived." Id. The court asserted that the Commission is "bound" by Lowe's "sworn belief" that he was terminated on February 23, despite the fact that the Commission does not share that belief. Id. at 12. The court held that Lowe is "estopped" from arguing that he was terminated on March 23, 2007, "as is EEOC vicariously." Id. at 13. The court stated that the later date is "illusory" and that "[u]npaid leave, after a well-communicated order of dismissal, is not an adverse employment action. It is nothing more than an internal reconciliation of the company's books." Id. The court asserted that, "[i]n effect, EEOC is Mr. Lowe's lawyer," and "[a] lawyer cannot gainsay what his client has consistently, under oath, asserted." Id. The court ruled that "[a] party cannot claim a dispute of material fact if he contradicts what he has previously and unequivocally said under penalty of perjury." Id. at 14. The court maintained that "[t]here is no way that a reasonable jury would conclude on this evidence that the last employment action adverse to Mr. Lowe occurred on March 23, 2007. If the passing reference by Summer Classics to 'March 23, 2007,' in its wind-up correspondence constitutes a scintilla of evidence on the issue, it is totally overwhelmed by the other evidence, by logic, and by estoppel." Id. at 15. The court concluded that a contrary ruling "cannot be justified unless by understandable sympathy for Mr. Lowe, and perhaps by understandable sympathy for EEOC." Id. STANDARD OF REVIEW This Court reviews a district court decision granting summary judgment de novo, viewing the evidence and all reasonable inferences in the light most favorable to the non-moving party. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1263-64 (11th Cir. 2010). A district court's denial of a motion to alter or amend a judgment under Rule 59(e) is reviewed for abuse of discretion. See, e.g., Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). "'A district court by definition abuses its discretion when it makes an error of law.'" United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). SUMMARY OF ARGUMENT Larry Lowe's charge of discrimination was timely because it was filed within 180 days of his receipt of the March 26, 2007, letter informing him that he was terminated as of March 23. The district court erred in holding that the charge- filing period began to run from the February 21 letter informing Lowe that it was a possibility that he might be terminated if he did not provide the medical information the company sought regarding his HIV-positive status. The ADA incorporates Title VII's requirement that an aggrieved person must file a complaint with the EEOC "within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117 (incorporating procedures of Title VII's § 2000e-5). For these purposes, under this Court's precedent, an adverse action does not "occur" until the employee is given "unequivocal notice" of the act. The language of the February 21 letter is equivocal. On its face, it allowed for the possibility that Lowe could keep his job should he provide the requested medical information about his HIV-positive status. Clark likewise confirmed that Lowe could have returned to work after receiving the February 21 letter had he supplied the medical information requested. The letter shows that Summer Classics was contemplating potential disciplinary action other than termination, as it informs Lowe that he would be placed on unpaid leave and that the company would "take action up to and including termination" if Lowe failed to comply with its information request. In contrast, the language of the March 26 letter is final and unequivocal, informing Lowe for the first time that "the company has no alternative but to terminate your employment effective March 23, 2007 for failure to provide the medical information requested." Summer Classics noted the March 23 date as Lowe's termination date on official documents and has never argued that he was fired on the earlier date (only that Lowe believed that he was). Accordingly, only the March letter constituted unequivocal notice of the company's decision to terminate Lowe. While the district court emphasized that Lowe believed he had been fired on February 23 and this belief was binding on the Commission, Lowe's subjective belief on this point is not at all dispositive. Further, the Commission is not Lowe's attorney. As the agency charged by Congress with enforcing the ADA and advancing the public interest in combating discrimination based on disability, it is not estopped from arguing a different date is the operative date for triggering the charge-filing period. Alternatively, even if the Court were to accept that Lowe was terminated pursuant to the February letter, Lowe's July Intake Questionnaire constituted a timely charge under Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). A document is considered a charge if it is in writing, identifies the parties, and describes the complained-of action or practice with sufficient precision to allow the Commission to begin an investigation. Additionally, under Holowecki, the document must "be reasonably construed as a request for the Commission to take remedial action to protect the employee's rights or otherwise to settle a dispute between the employer and the employee." Lowe's July 21, 2007, Intake Questionnaire in this case met those requirements: It contained his name, address, and telephone number; the name and address of his employer; a concise statement of the facts supporting his claim of discrimination, including pertinent dates; and the number of employees at Summer Classics. Lowe also stated that he was looking for an attorney and listed a potential witness to the alleged discrimination. In a handwritten note attached to the Questionnaire, Lowe stated that Summer Classics had violated the law, characterizing his experience as "discrimination" and "a crime." He attributed the pain and suffering he had experienced to the defendant's actions, noting he was "depressed" and was suffering from "fatigue, lack of sleep and appetite." This communication could reasonably be construed as a request for the EEOC to act to rectify disability discrimination. Thus, even if the company's February 21 letter triggered the running of the limitations period, the district court erred in holding that Lowe failed to file a timely charge. ARGUMENT THE DISTRICT COURT COMMITTED REVERSIBLE ERROR IN RULING THAT LOWE HAD NOT FILED A TIMELY EEOC CHARGE. A. Because Lowe did not receive unequivocal notice that he was terminated until after March 26, 2007, his September 5 charge was filed within 180 days of the alleged discriminatory act - and thus was timely filed. To pursue an ADA claim in court, a plaintiff must first file a "charge" with the Commission within 180 days<3> of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117 (adopting the same Title VII requirement for purposes of the ADA). Under this Court's longstanding precedent, this 180-day time frame only begins to run on the date on which the employee receives "unequivocal notice" of the alleged discriminatory act. Grayson v. K Mart Corp., 79 F.3d 1086, 1100 n.19 (11th Cir. 1996) (explaining that "the time for filing an EEOC charge begins to run when the employee receives unequivocal notice of the adverse employment decision"); see also Wright v. AmSouth Bancorporation, 320 F.3d 1198, 1201 (11th Cir. 2003) ("The 180-day filing period beings to run from a final decision to terminate the employee."); Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987) ("[T]he 180-day period is counted from the date the employee receives notice of termination."); cf. Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (holding that the plaintiff's limitations period began to run when the "decision was made and communicated" to him). Here, the only unlawful employment practice at issue is Summer Classics' decision to fire Lowe. R-1 (Complaint at 1, 5). Lowe filed his Form 5 EEOC charge on September 5, 2007. R-23. Thus, as long as Lowe first received unequivocal notice that he was being terminated on or after March 9, 2007 (180 days before September 5, 2007), his charge was timely filed. The evidence indicates that Summer Classics' decision to discharge Lowe was not made and communicated to Lowe until after March 26, 2007-the date Summer Classics sent a letter to Lowe informing him that he was terminated "effective March 23, 2007." R-23. Since that date is after March 9, 2007, Lowe's charge of discrimination was timely. The district court found the charge was untimely because it calculated the 180 days as running from the February 21 letter informing Lowe that he might be fired if he did not provide the requested medical information about his HIV status. However, the district court erred in holding that this February 21 letter triggered the limitations period. The February letter explicitly stated that Lowe would be allowed to keep his job if he provided the medical information the company requested. R-23. It states, "If we have not received the requested information by 5:00 pm on Friday, we will be left with no other alternative than to place you on unpaid leave and take action up to and including termination of your employment. We hope that you can provide the information by the end of the week and that you will be able to safely return to work." R-23 (emphasis added). Thus, the February 21 letter indicated merely that Lowe would be placed on unpaid leave and that additional actions "up to and including termination" may have to be taken. Further, Clark testified that if Lowe had provided the medical information she requested, he would not have been terminated. R-20 at 62. That future contingency makes the February 21 notice of the possibility of termination equivocal. This Court has held that "the 180-day charge filing period does not run until an employee is told that she is actually being terminated, not that she might be terminated if future contingencies occur." Stewart v. Booker T. Washington Ins., 232 F.3d 844, 849 (11th Cir. 2000) (emphasis in original). Accordingly, the district court committed legal error in ruling that the February 21 letter triggered the running of the limitations period. The language of the March 26 letter confirms that Summer Classics was merely considering firing Lowe after February 23, and that it did not actually decide to terminate Lowe's employment until the following month. This letter also makes clear that the only adverse action that occurred on February 23 was the decision to place Lowe on unpaid leave. But as already explained, the unlawful employment practice at issue in this case is not Summer Classics' decision to put Lowe on unpaid leave. Rather, it is the company's decision to discharge him. The district court's conclusion that no "adverse action" occurred after February 23 is thus inaccurate. The March 26 letter states: "Since the requested information was not provided by February 23, 2007, you were placed on unpaid administrative leave pending a decision by the company on the status of your employment. In view of these circumstances, the company has no alternative but to terminate your employment effective on March 23, 2007 for failure to provide the medical information requested." R-23. This letter thus confirms that even after February 23, the decision of whether to terminate Lowe was merely "pending." The letter's language uses the present tense - the company "has no alternative but to terminate your employment effective on March 23, 2007"-establishing that the actual decision to discharge Lowe had not been made until around the March 23-26 timeframe. Nevertheless, the district court omitted the bolded sentence above from its opinion, and erroneously concluded that the March 26 letter was merely a "bookkeeping" measure. See R-50 at 9, 13. There is no evidence in the record to support this characterization. The date of February 23, 2007, nowhere appears in the company's official records as the date of Lowe's discharge-only the March 23, 2007, date does. In fact, Summer Classics did not argue to the district court that Lowe was terminated on February 23, 2007, only that Lowe believed that he was. See R-4 (Answer at 2) ("Summer Classics admits that Larry Lowe was employed by Summer Classics as a boxer in the Boxing Area from August 31, 2006 to March 23, 2007."); R-16 (Def. Br. at 2) (stating that Lowe testified that he thought he was discharged on February 23); R- 26 (Opposition to Summary Judgment at 26-27) (responding to defendant's statement of fact that "Lowe testified that he was terminated as of February 23, 2007"). Moreover, Clark testified that the decision to terminate Lowe was made a few weeks after the February 21 letter was sent. R-20 at 62-63. Clark's notes entered under March 26, state: "I FedEx[ed] [Lowe] his termination letter as well as Cobra application forms . . . ." R-23 (emphasis added). Further, on the employer's response to Lowe's claim for unemployment benefits, Clark listed Lowe's last day of employment as March 23, 2007. R-43-4 at 2. An audit report from the company also lists Lowe's termination date as March 23, 2007. R-43-5. Summer Classics' Answer to the EEOC's Complaint similarly states: "Summer Classics admits that Larry Lowe was employed by Summer Classics as a boxer in the Boxing Area from August 31, 2006 to March 23, 2007." R-4 at 2. (emphasis added). The company's interrogatories requesting post-termination mitigation information use March 23, 2007 as the operative date, as well. R-43-8 at 3 (question 15). These facts establish that Summer Classics did not actually terminate Lowe until March 23, 2007, and that it thus could not have given Lowe "unequivocal notice" of his termination until the company communicated this decision to him via the March 26 letter. In ruling otherwise, the district court neglected to apply this Court's precedent and the proper legal standards governing how to determine the date triggering the charge-filing period. Further, in characterizing the March 26 letter as mere "windup correspondence" with no substantive effect, the district court failed to evaluate the evidence in the light most favorable to the Commission. See Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010) (in considering a motion for summary judgment, the court must "draw all reasonable inferences in favor of the nonmoving party"). These errors require reversal. The district court relied heavily on Lowe's testimony and assertions in his submissions to the EEOC that he interpreted the February 21 letter as terminating him as of February 23, as well as the fact that he filed for unemployment benefits prior to the March 26 letter. But Lowe's subjective and mistaken belief regarding his official termination date is not relevant to the question of when the 180-day limitations period began to run.<4> It does not negate the fact that unequivocal notice was not communicated until the March 26 letter. Nor does it preclude the Commission from arguing that only this March 26 letter triggered the limitations period. In Wright, this Court explained that a plaintiff's admission that his company had made up its mind to fire him demonstrates his "subjective belief that his termination was inevitable" but "provides no evidence of either a firm decision to fire Wright or a communication of such decision." 320 F.3d at 1203. The same is true in this case. Further, the Commission, not Lowe, is the plaintiff in this case. The district court's contention that the Commission is "in effect, Mr. Lowe's lawyer" so that it is "vicariously estopped" from arguing that the March 26 letter triggered the limitations period reflects a fundamental misunderstanding of the relationship between the EEOC and a charging party. Lowe is not the EEOC's client, and he cannot bind the Commission's litigation strategy to his mistaken belief that he was fired a month earlier than he actually was. "[O]nce a charge is filed . . . the EEOC is in command of the process" and after "the EEOC files suit on its own, the employee has no independent cause of action. . . . The statute clearly makes the EEOC master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake." EEOC v. Waffle House, 534 U.S. 279, 291 (2002); see also Gen'l Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) ("[T]he EEOC is not merely a proxy for the victims of discrimination. . . ."). The evidence in this record establishes that Lowe did not receive "final and unequivocal notice" of his termination until he received the March 26 letter. Thus, under this Court's precedent, the district court committed reversible legal error in ruling otherwise. B. Even if the February 21 letter started the 180-day clock running, Lowe filed a timely charge, since his July 21 Intake Questionnaire also constitutes a charge and was filed within the requisite 180 days. The district court also committed reversible error in ruling as a matter of law that Lowe's July 21 Intake Questionnaire was not a charge of discrimination. R-40 at 2. Even if the February 23, 2007, date triggered the running of the charge-filing period, the Questionnaire was submitted on July 31, 2007 - within 180 days of that date. Lowe thus filed a timely charge when he filed his Questionnaire. The district court appeared to reject the idea that anything other than an actual completed Form 5 charge form can be a charge, emphasizing a "sharp distinction" between Intake Questionnaires and charges. R-40 at 2. But this is inconsistent with the Supreme Court's instruction in Federal Express Corp. v. Holowecki that "a charge can be a form, easy to complete, or an informal document, easy to draft." 552 U.S. at 403; see also id. at 402 ("It is true that under this permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the [ADA]."). Thus, contrary to the district court's conclusion, Intake Questionnaires and accompanying documents - like those Lowe submitted on July 21, 2007 - can qualify as EEOC charges. Of course, not every document filed with the EEOC is a charge. For a document to constitute a charge, it must, at a minimum, be in writing, identify the parties and describe the complained-of action or practice with sufficient precision to allow the Commission to begin an investigation. See 29 C.F.R. §§ 1601.9, 1601.12. In addition, under Holowecki, the document must "be reasonably construed as a request for the Commission to take remedial action to protect the employee's rights or otherwise to settle a dispute between the employer and the employee." 552 U.S. at 402.<5> Only documents meeting these requirements qualify as "charges."<6> Thus, the district court's concern that all Intake Questionnaires would automatically be "transmogrified" into charges is misplaced. It is undisputed that on July 21, 2007, Lowe submitted an Intake Questionnaire that contained (among other information) his name, address, and telephone number; the name and address of his employer; and a concise statement of the facts supporting his claim of discrimination, including pertinent dates. R- 26-6 at 2-5. Lowe also stated that he was looking for an attorney. R-26-6 at 5. In a handwritten note attached to the Questionnaire, Lowe stated that Summer Classics had violated the law, and characterized his experience as "discrimination" and "a crime." R-26-6 at 6. He attributed the pain and suffering he had experienced to the defendant's actions, noting he was "depressed" and suffering from "fatigue, lack of sleep and appetite." Id. This communication, taken as a whole, was a request for the EEOC to act within the meaning of Holowecki, rather than merely a request for information. See Holowecki, 552 U.S. at 401 (The EEOC "requires some mechanism to separate information requests from enforcement requests."). In Williams v. CSX Transportation, 643 F.3d 502, 510 (6th Cir. 2011), the Sixth Circuit held that the plaintiff's information form submitted to the EEOC alleging sexual harassment constituted a charge of discrimination under Holowecki because in the form she "expressly stated" that her workplace was "a very hostile work environment" and that she believed the company owed her money damages. According to the court, "[A]n objective observer would believe that Williams sought the EEOC to activate its remedial machinery, rather than simply obtain information." Id. at 509. The district court, in discussing Williams, noted that Lowe "only answered EEOC's questions" and maintained that his statement that he was looking for counsel was not sufficient to make his Intake Questionnaire a charge. R-50 at 4. But the court ignored obvious similarities to the facts of Williams. Lowe stated that the company's treatment of him constituted "discrimination" and was a "crime." Lowe stated that he was seeking counsel and indicated he had a witness who could corroborate his allegations. Lowe also described all the physical and emotional difficulties he was suffering as a result of the discrimination. These statements included in Lowe's Questionnaire are comparable to the circumstances found sufficient in Williams to support a conclusion that the documents submitted constituted a request for the EEOC to act - and to reverse the district court's contrary ruling. See R-26-6.<7> Further, the Supreme Court in Holowecki anticipated that "[t]here might be instances where the indicated discrimination is so clear or pervasive that the agency could infer from the allegations themselves that action is requested and required . . . ." 552 U.S. at 405. This is such a case. Here, the action complained of-requiring an HIV-positive cushion boxer to provide medical information about his condition as a condition of continued employment-is a manifest violation of the ADA, since there was no realistic possibility Lowe posed a direct threat given his occupation and the virtually nonexistent risk that he would transmit HIV to anyone else in the workplace. See EEOC Enforcement Guidance: Disability- Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, No.915.002 (July 27, 2000), Question 5, Example D, available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html (where available scientific evidence showed that the possibility of transmitting HIV from a produce clerk to other employees or the public is virtually nonexistent, the employer does not have a reasonable belief, based on objective evidence, that this employee's ability to perform the essential functions of her position will be impaired or that she will pose a direct threat due to her medical condition. The employer, therefore, may not make any disability-related inquiries or require the employee to submit to a medical examination."); see also Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (risk assessment must be based on medical or other objective evidence); Lowe v. Ala. Power, 244 F.3d 1305, 1308 (11th Cir. 2001) ("To prevent the very reliance on stereotype[s] and related perceptions of an individual's limitations that the ADA prohibits, an employer must point to particularized facts about the specific person's condition to support its decision."). Lowe's job was to place cushions in boxes and seal them, and he testified he had never been injured on the job. His job also involved other patently non- dangerous duties, including sweeping, dusting, and mopping, and assisting with inventory. And while the boxer job description noted Lowe might "occasionally" use a box blade to open boxes, there is nothing in the record to suggest that he ever cut himself or anyone else on the job - or that anyone else doing the same job had ever cut himself or herself, or others, either. As Lowe's doctor stated in the note Lowe submitted releasing him to work, "unless someone has unprotected sex with him there is NO probability he will pose a risk to anyone in the workplace." R-18 (emphasis in original). HIV is spread primarily by unprotected sexual intercourse with a person infected with HIV or by "sharing needles, syringes, rinse water, or other equipment used to prepare illicit drugs for injection." R-26-5 (Center for Disease Control and Prevention, Basic Information about HIV and AIDS, at 3). HIV cannot be spread by "[c]asual contact like shaking hands or sharing dishes." Id. at 4. For Lowe to pose any danger to a coworker, he would have to cut himself and then his blood would have to come into contact with another person's "broken skin, wounds, or mucous membranes." Id. According to the CDC, reports of this type of infection have been "extremely rare." Id. Clark's testimony that she believed that HIV could be transmitted "[i]f you have a cut in your hand and there is any contact with that" or "if it comes in contact with your eye, you can get it, too," (R-20 at 19) reflects the type of myths, fears, and stereotypes that the ADA was enacted to combat. See, e.g., Bd. Of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 381 (2001) ("'Outmoded stereotypes whether manifested in medical or other job requirements that are unrelated to the successful performance of the job, or in decisions based on the generalized perceptions of supervisors and hiring personnel, have excluded many disabled people from jobs for which they are qualified.'") (quoting 2 Leg. Hist. 1622 (testimony of Arlene B. Mayerson)). Clark testified that the company was worried about Lowe's and others' safety and that "the blood would come to [sic] contact with somebody maybe." R-20 at 101 (emphasis added). But such a generalized concern about a theoretically possible event cannot justify the company's request for the information it required Lowe to submit, or its decision to fire him for failing to provide it. The allegations in Lowe's Questionnaire reflect an obvious ADA violation, and thus qualify as a request for the EEOC to act under Holowecki. Here, despite Lowe's efforts to request EEOC action, the district court concluded that the Questionnaire could not possibly have reflected a request for the EEOC to act, because the Commission took no immediate action on the Questionnaire itself and required Lowe to return a Form 5 charge anyway. R-50 at 3. However, under Holowecki, whether a document submitted to the EEOC constitutes a charge is to be determined objectively. 552 U.S. at 402 (explaining that "the filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes"). Whatever the Commission did or did not do immediately after receiving Lowe's Intake Questionnaire is not relevant to whether that Questionnaire was a charge. See Holowecki, 552 U.S. at 406 ("What matters, however, is whether the documents filed in December 2001 should be interpreted as a request for the agency to act. Postfiling conduct does not nullify an earlier, proper charge.").<8> Indeed, in Holowecki the Supreme Court rejected reasoning similar to the district court's here. In dismissing the employer's argument that treating a document as a charge should be conditioned on the Commission's having promptly notified the employer of the receipt of the document, the Court stated that "[t]he statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action." 552 U.S. at 404; cf. id. ("It would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control."). Nothing in Holowecki remotely suggests that a different rule should apply in the case of a charge that subsequently becomes the basis for a Commission enforcement action (like this one). To the contrary, the Court rejected, without qualification, any suggestion that the EEOC's failure to act on a document "means the filing is not a charge." Id. at 403; see also id. (As a textual matter, the proposal is too artificial a reading of the statute to accept."). Since most complaining parties are unrepresented by counsel when they communicate with the EEOC for help, "[d]ocuments filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies." Holowecki, 552 U.S. at 407. Here, the district court erred in failing to recognize that Lowe's Questionnaire constituted a request for the EEOC to act to vindicate his right to be free from disability-based discrimination. Therefore, the district court committed reversible error in ruling as a matter of law that this Questionnaire was not a "charge." CONCLUSION For these reasons, the Commission respectfully asks this Court to reverse the district court's grant of summary judgment to the defendant and remand the case for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel _______________________________ Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5th Floor Washington, DC 20507 CERTIFICATE OF COMPLIANCE WITH RULE 32(A) I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 9,278 words (as counted by MS Word 2003), excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). The brief complies with the typeface requirements of Rule 32(a)(5) because it has been prepared in a proportionally spaced typeface using Times New Roman 14-point type. _______________________________ Julie L. Gantz December 12, 2011 CERTIFICATE OF SERVICE I certify that one copy of this brief has been served by mailing it today by overnight mail to: N. Dewayne Pope Brice Martin Johnson RED MOUNTAIN LAW GROUP 15 R. Arrington Jr. Blvd. N. Suite 301 Birmingham, AL 35203 ___________________________ Julie L. Gantz December 12, 2011 ********************************************************************************** <> <1> R-18 was filed under seal in the district court to protect the charging party's identity. <2> The district court criticized the EEOC for failing to move for summary judgment "respecting the triggering date." R-50 at 6. However, the Commission has consistently maintained that Summer Classics terminated Lowe on or around March 23, 2007, beginning with the EEOC's determination letter finding cause issued August 5, 2009. R-23. <3> Because Alabama does not have a state FEPA, a 180-day filing period applies to Lowe's charge. See 29 C.F.R. § 1626.7(a). <4> Indeed, if a charging party's subjective but mistaken belief on the operative date were dispositive, then a charge would be timely simply because the charging party believed an act occurred on a particular date - even if the event triggering the limitations period actually occurred too early for the charge to be deemed timely. For example, in this case, under the district court's approach, if the date on which Lowe was discharged actually was February 21 but Lowe was convinced he had not been terminated until March 23, then a charge filed on September 5 would have to be considered timely - even though it clearly would not be. <5> Holowecki, which was an ADEA case, has nevertheless been applied in ADA cases. See, e.g., Street v. United Parcel Serv., Inc., No. 09-197, 2011 WL 4526753, at *7 (M.D. Ga. Sept. 28, 2011); Smith v. Verizon Washington DC, No. 11-1301, 2011 WL 5547996, at *4 (D. Md. Nov. 10, 2011); Price v. City of New York, No. 09-4183, 2011 WL 2490966, at *4 (E.D.N.Y. June 22, 2011); Steiner v. Professional Servs. Indus., Inc., No. 08-723, 2009 WL 2950755, at *2 (W.D. Pa. Sept. 9, 2009). <6> Assuming these requirements are met, factual omissions or technical defects, such as the failure to verify the charge, may be cured outside the 180-day charge-filing period, and the amended charge will relate back to the date the charge was first received. 29 C.F.R. § 1601.12(b); see also Edelman v. Lynchburg College, 535 U.S. 106, 109-10, 119 (2002) (discussing unverified letter and finding that EEOC's regulation allowing for relation back constitutes an "unassailable interpretation" of Title VII). Thus, the magistrate judge's and district court's concern that the intake questionnaire here was unsworn was unnecessary. Here, the Intake Questionnaire was perfected when Lowe filed a Form 5, and the verification Lowe provided on that Form 5 "related back" to the date the Questionnaire was first received by the EEOC. <7> The district court lamented the fact that the current version of the EEOC intake form was not used by Lowe, indicating that it would more clearly have shown that Lowe was requesting that the EEOC act to rectify the discrimination he had suffered. See R-50 at 5-6. However, that form, created in response to Holowecki, was not yet available or in use at the time Lowe submitted his Intake Questionnaire. Moreover, as already explained, the use of that form (or any particular form) is not a prerequisite for a document to be an EEOC charge. <8> It bears noting, however, that the Commission's practice is always to ask for a Form 5 Charge - even in cases where previously-submitted documents clearly constitute charges in their own right. This helps assure that technical defects in such charging documents (such as the failure to verify an intake questionnaire) are cured, and the charge perfected.