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 ____________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . iii TABLE OF RECORD REFERENCES IN THE BRIEF. . . . . . . . . . . . . . . . . .vi INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. The EEOC is not estopped from arguing that Lowe was terminated upon receipt of the March 26, 2007, letter because it repeatedly stated that Lowe was terminated on March 23, 2007, and, in any case, the district court fully considered and ruled on the issue. . . . 3 B. Lowe’s belief that he was fired upon receipt of the February 21 letter is not dispositive to the determination of the date that actually triggered the limitations period . . . . . . . . . . . . . . . . . . 9 C. Only the March 26th letter constituted unequivocal notice of termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 D. Lowe’s intake questionnaire constitutes a charge under Holowecki . . . 13 E. Because it was obvious that there was not a significant risk that Lowe would transmit HIV to a coworker, the company’s conditioning his employment on producing additional medical records presented a patent violation of the ADA, that would signal the EEOC to take action on his intake questionnaire. . . . . . . . . . . . . . . . . . 18 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE 26 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Bailey v. Int’l Bhd. of Boilermakers, 175 F.3d 526 (7th Cir. 1999). . . 7, 8, 9 Bost v. Fed’l Express Corp., 372 F.3d 1233, 1241 (11th Cir. 2004) . . . . . . 16 Bragdon v. Abbott, 524 U.S. 624, 649 (1998). . . . . . . . . . . . . . . . . .23 Busby v. JRHBW Realty, 513 F.3d 1314 (11th Cir. 2008). . . . . . . . . . . . 6 Cada v. Baxter Healthcare Corp. , 920 F.2d 446 (7th Cir. 1991). . . . . . . .12 Cocke v. Merrill Lynch & Co., Inc., 817 F.2d 1559 (11th Cir. 1987). . . . . . 10 Delaware State College v. Ricks, 449 U.S. 250 (1980). . . . . . . . . . . . 12 Edge v. Wal-Mart Stores East, No. CV-107-153, 2008 WL 3927276 (S.D. Ga. Aug. 25, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 EEOC v. Freeman, No. 09-cv-2573, 2010 WL 1728847 (D. Md. Apr. 27, 2010). . . 15 EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280 (11th Cir. 2004). . . . . . . . . 11 EEOC v. Prevo’s Family Market, Inc., 135 F.3d 1089 (6th Cir. 1998). . . . .21-22 EEOC v. Waffle House, 534 U.S. 279 (2002). . . . . . . . . . . . . . . . . . 10 English v. Whitfield, 858 F. 2d 957 (4th Cir. 1988). . . . . . . . . . . . 12 Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). . 2, 14, 15, 16, 17, 18 First Nat’l Bank of Commerce v. La Maze, 7 F.3d 1227 (5th Cir. 1996). . . 8 Gen. Tel. Co. of the NW v. EEOC, 446 U.S. 318 (1970). . . . . . . . . . . 10, 11 Lowe v. Ala. Power Co., 244 F.3d 1305 (11th Cir. 2001). . . . . . . . . . . . 23 Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990). . . . . . . . . . . . . . . 7 Morrow v. Metropolitan Transit Authority, No. 08-6123, 2009 WL 1286208 (S.D.N.Y. May 8, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Nadesan v. Texas Oncology, No. 2:10-CV-239-J, 2011 WL 147570 (N.D. Tex. Jan. 18, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996). . . . . . . . . 8 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977). . . . . . . . . . . . 10 Roe v. City of Atlanta, No. 11-11758, 2012 WL 281766 (11th Cir. Feb. 1, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Singleton v. Wulff, 428 U.S. 106 (1976). . . . . . . . . . . . . . . . . . 7 Stewart v. Booker T. Washington Ins., 232 F.3d 844 (11th Cir. 2000). . . .11, 12 Whittaker v. Corp. v. Execuair Corp., 953 F.2d 510 (9th Cir. 1992). . . . . . 8 Williams v. CSX Transportation, 643 F.3d 502 (6th Cir. 2011). . . . . . . . . 17 Wright v. AmSouth Bancorp., 320 F.3d 1198 (11th Cir. 2003). . . . . . . . . 11 STATUTES AND RULES 42 U.S.C. § 12111(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Fed. R. App. P. 32(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 OTHER SOURCES Black’s Law Dictionary (6th ed. 1990). . . . . . . . . . . . . . . . . . . . . 5 Center for Disease Control and Prevention, HIV Transmission Questions and Answers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act No.915.002 (July 27, 2000). . . . . . . . . . . . . . . . . . . . . . . . 19, 24 U.S. Dep’t of Justice Civil Rights Division, Disability Rights Section, Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23 Webster’s New Int’l Dictionary (3d ed. 1993). . . . . . . . . . . . . . . . . 11 TABLE OF RECORD REFERENCES IN THE BRIEF Brief Page # Docket # 4 EEOC Determination Letter Finding Cause 23 4 EEOC’s Memorandum Brief in Opposition to 26 Summary Judgment 5 EEOC’s Objections to Report and Recommendation 33 5, 8, 9 EEOC’s Memorandum in Support of Motion for Reconsideration 44 8 Memorandum Opinion Denying Rule 59(e) Motion 50 11, 12 February 21, 2007 Letter 23 12,21,24Deposition of Fabyanna Clark 20 15 Lowe’s Intake Questionnaire 26-6 19, 22 Boxing Job Description 23 19 Note from Dr. Mangieri releasing Lowe to work 18 20 Deposition of James Culp 22 21 Deposition of Larry Lowe 18 INTRODUCTION This is an appeal of summary judgment in a case alleging that the defendant violated the Americans with Disabilities Act when it fired charging party Larry Lowe after he refused to provide the company with medical records concerning his HIV-positive status. The only issue before the Court is whether Lowe filed a timely EEOC charge of discrimination. In the Commission’s opening brief, we emphasized that Lowe’s September 5, 2007, EEOC Form 5 charge was timely filed because he did not receive unequivocal notice that he was terminated until he received the company’s March 26, 2007, letter informing him that he was terminated as of March 23. Because September 5th fell within the 180-day limitations period, we argued, his charge was timely filed. We emphasized that Lowe’s belief that he had been fired via the company’s earlier February 21 letter—a letter which stated that he had two days to produce the medical information or the company would place him on unpaid leave and “take action up to and including termination”— is not dispositive on the legal question of when the charge-filing period begins to run. We explained that we are not Lowe’s lawyer, and thus are not bound by his subjective perceptions on this issue. We further explained that under this Court’s precedent, an adverse employment action “occurs” for charge-filing purposes only upon receipt of unequivocal notice of termination. The February 21 letter in no way reflects the sort of unequivocal notice this Court has required to start the 180-day clock running. See EEOC Br. at 21-27. We also argued that even if the February 21 letter from the company did trigger the 180-day limitations period, Lowe filed a timely charge. We explained that Lowe’s July 21 Intake Questionnaire constitutes a charge and was filed within the required 180 days from February 21. We argued that the intake questionnaire and attached note from Lowe contained the required elements of a charge, as they were in writing, identified the parties, and described the complained-of action with enough precision to allow the EEOC to investigate. The questionnaire could also be reasonably construed as a request for the agency to act to protect the employee’s rights or settle a dispute with the employer, rather than as a mere request for information, and thus was sufficient to constitute a charge under Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). See EEOC Br. at 29-32. In its brief, Summer Classics responds to some of these arguments, and ignores others. The company contends that (1) the EEOC is “estopped” from arguing that the March date was the operative termination date that began the 180-day limitations period because the EEOC only argued the importance of the date in its Rule 59(e) motion; (2) the February 21 letter constituted unequivocal notice of termination because it stated that Lowe would be fired if he did not produce the requested medical information; (3) Lowe’s intake questionnaire cannot constitute a charge because it cannot be construed as a request for the EEOC to act; and (4) the intake questionnaire does not present a manifest violation of the ADA that would trigger action by the EEOC because the company was entitled to the medical records requested. We offer this reply to explain that the EEOC is not estopped from arguing on appeal that Lowe was terminated for charge-filing purposes upon receipt of the March 26, 2007 letter, to emphasize that the EEOC does not represent Lowe and is not bound by his subjective perception of his termination date, and to emphasize that in any event, Lowe’s intake questionnaire constituted a charge under Holowecki. ARGUMENT A. The EEOC is not estopped from arguing that Lowe was terminated upon receipt of the March 26, 2007, letter because it repeatedly stated that Lowe was terminated on March 23, 2007, and, in any case, the district court fully considered and ruled on the issue. In our opening brief, we argued that the district court erred in holding that the charge filing period began to run from the February 21 letter from Summer Classics informing Lowe that it was possible that he would be terminated if he did not provide the medical information the company sought. It is undisputed that an adverse action does not “occur” for present purposes until the employee is given unequivocal notice of the challenged act. See EEOC Br. at 21-22 (citing cases). Here, Lowe did not receive unequivocal notice that he was being terminated until he received the March 26 letter. See id. at 22-28. Although Lowe testified repeatedly that he believed he was terminated when he received the February 21 letter, and although he put the incorrect date of termination on his communications and filings with the EEOC, the Commission has consistently stated that Lowe was terminated via the March 26 letter. See EEOC Br. at 7-8 (citing record). In the EEOC’s August 5, 2009, Letter of Determination, the agency states: “The evidence of record revealed that the Charging Party was discharged on March 26, 2007 for failing to submit to a fitness-for-duty examination and for not releasing his medical records to the Respondent.” R-23. In its opposition to summary judgment, in the agency’s responses and objections to the defendant’s statement of facts, the EEOC disputed the defendant’s suggestion that Lowe was terminated on February 23, 2007: “Denied that Lowe was actually terminated February 23, 2007. Although Lowe considered himself terminated upon receipt of the letter placing him on unpaid suspension as of February 23, the records show that Lowe was terminated March 23, 2007.” R-26 at 27 (response to fact 53). The Commission’s averments regarding Lowe’s termination date were supported by the evidentiary record. In contrast, the defendant produced no evidence that Lowe was terminated on February 23, 2007, and did not factually dispute the Commission’s evidence. In its objections to the magistrate judge’s report and recommendation, the EEOC states in its factual chronology: “Lowe considered himself terminated upon receipt of the letter placing him on unpaid suspension as of February 23, 2007. Summer Classics terminated Lowe’s employment on March 23, 2007.” R-33 at 4. The Commission fully argued and briefed the importance of the March termination date in its Rule 59(e) motion. See Def.’s Supplemental Expanded Record Excerpts at R-44. Thus, the Commission has consistently represented that Lowe was terminated with the February letter placing him on unpaid leave. Likewise, the defendant repeatedly acknowledged that Lowe was terminated on March 23, 2007. The defendant’s answer, interrogatories, and company records all place Lowe’s termination date at March 23. See EEOC Br. at 7-8, 25-26 (citing record evidence and defendant’s assertions). Summer Classics contends that because the Commission did not argue the significance of the March termination date until its Rule 59(e) motion, the EEOC is “estopped” from arguing on appeal that the March date triggered the 180-day limitations period. Def. Br. at 17-19. “Estoppel” is defined as “a principle that provides that an individual is barred from denying or alleging a certain fact because of that individual’s previous conduct, allegation, or denial.” Black’s Law Dictionary 551 (6th ed. 1990) (emphasis added). This Court has listed the elements of equitable estoppel to include: (1) the party to be estopped misrepresented material facts; (2) the party to be estopped was aware of the true facts; (3) the party to be estopped intended that the misrepresentation be acted upon; (4) the party asserting estoppel did not know the true facts; and (5) the party asserting estoppel detrimentally relied on the misrepresentation. See, e.g., Busby v. JRHBW Realty, 513 F.3d 1314, 1326 (11th Cir. 2008). None of these elements is present in this case, making any estoppel argument inapt. As we pointed out in our opening brief, not only did the EEOC never concede that Lowe was fired in February, Summer Classics never argued that it terminated him on February 21 either—only that Lowe thought it had. See EEOC Br. at 25 (citing record). Indeed, we emphasized that all the company’s official records list March 23 as Lowe’s termination date. EEOC Br. at 25-26. Thus, because the EEOC never “misrepresented materials facts” (but instead has consistently maintained that the March 26th date was the date of the adverse action being challenged), and since Summer Classics itself cannot plausibly claim it did not “know the true facts,” the doctrine of estoppel is inapplicable here. Perhaps the company instead intended to argue that the Commission has waived or forfeited the argument that the charge is timely because the March date triggered the limitation period. Such a contention should likewise be rejected. It is “the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976); see also Bailey v. Int’l Bhd. of Boilermakers, 175 F.3d 526, 529 (7th Cir. 1999) (It is “well settled that arguments presented for the first time on appeal are waived.”). The purpose of the waiver rule is to give the trial court “the first opportunity to pass on the appellant’s theory and avoid error,” to “avoid usurping the trial court’s proper role by refusing to consider issues for the first time on appeal that require the factfinding abilities of the district judge,” and to “ensure we have an adequate record to review on appeal.” Bailey, 175 F.3d at 530. But none of these considerations bar appellate review of the EEOC’s contentions in this case. To be sure, the Commission first elaborated upon the significance of the March 26, 2007, letter in its Rule 59(e) motion. And the Commission could have fully argued the issue first in its opposition to summary judgment or in its objections to the magistrate judge’s report and recommendation. Despite that it did not do so, however, the Commission was not categorically precluded from raising the issue in its motion for reconsideration. See Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990) (recognizing that “there are occasions in which reconsideration should be entertained” and remanding case to district court to permit plaintiff to proceed with his claim even though the plaintiff did not discuss a newly enacted statute affecting his case until his Rule 59(e) motion and could have made the argument in his opposition to summary judgment); see also New York Life Ins. Co. v. Brown, 84 F.3d 137, 142 (5th Cir. 1996) (noting that “issues may be raised for the first time in post-judgment motions”); First Nat’l Bank of Commerce v. LaMaze, 7 F.3d 1227, 1229 n.9 (5th Cir. 1993) (rejecting waiver argument because the party raised it in briefing the post-judgment motion); Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992) (explaining that the standard is “that the argument must be raised sufficiently for the trial court to rule on it,” and recognizing that by filing a motion for reconsideration, the defendant gave the district court a clear opportunity to review the validity of its order). In its August 3, 2011, decision denying the EEOC’s motion, the district court chided the agency for not raising the issue in a partial motion for summary judgment, R-50 at 6, and could have opted not to address it. Instead, the court comprehensively evaluated, but rejected, the Commission’s argument that Lowe was terminated in March, not February. See R-50 at 7-12. Thus, this Court is not being called upon to consider an issue on which the district court has not yet had a chance to rule. See R-50; Bailey, 175 F.3d at 530 (“We know from its opinion that the court indeed considered the question” whether the March 26th letter was the date of termination.). Further, the Commission and Summer Classics fully briefed the issue at the Rule 59(e) motion stage. See R-44.<1> Therefore, “there is nothing undeveloped in the record that will be central to the issue before” this Court. Bailey, 175 F.3d at 530. Accordingly, this Court may decide the question without offending any principles underlying the doctrines of waiver or forfeiture. B. Lowe’s belief that he was fired upon receipt of the February 21 letter is not relevant to the determination of the date that actually triggered the limitations period. In our opening brief, we explained at length that the Commission is the plaintiff in this case and that the EEOC is not Lowe’s attorney or bound by any position Lowe takes. See EEOC Br. at 26-28. We also explained that Lowe’s subjective perception that he was fired via the February letter is irrelevant to the date he actually received unequivocal notice of termination. Instead of responding to this argument, Summer Classics devotes several pages of its brief to chronicling the instances where Lowe stated that he interpreted the February 21 letter as terminating him. See Def. Br. at 21-23. It bears emphasizing that the question of when an adverse action “occurs” for purposes of triggering the charge-filing period requires a proper understanding of applicable law—an understanding a layperson would have no reason to possess. Receipt of “unequivocal notice” of termination is a legal term of art. Thus, a charging party’s belief that a particular underlying fact is true is not legally dispositive. See EEOC Br. at 27 n.4. That Lowe thought he was fired a month earlier than he actually was is not controlling, and indeed is not relevant, for purposes of resolving the legal issue presented here—i.e., when the 180-day charge-filing period was triggered. That is an objective inquiry into when Lowe received unequivocal notice of termination, or “a final decision to terminate the employee.” Cocke v. Merrill Lynch & Co., Inc., 817 F.2d 1559, 1561 (11th Cir. 1987). Moreover, it is black-letter law that the Commission is not bound by Lowe’s mistaken belief because the EEOC is not his surrogate. While it is true that the EEOC is seeking relief on Lowe’s behalf, the Supreme Court has repeatedly recognized that “the EEOC is not merely a proxy” for the individuals for whom it seeks relief. See Gen. Tel. Co. of the NW v. EEOC, 446 U.S. 318, 326 (1980) (holding that the EEOC need not comply with the class certification requirements of Rule 23 of the Federal Rules of Procedure); EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (“We have recognized several situations in which the EEOC does not stand in the employee’s shoes.”); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977) (“[T]he EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties.”); EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1291 (11th Cir. 2004) (finding no privity between the EEOC and private plaintiffs and stating that “governmental agencies have statutory duties, responsibilities, and interests that are far broader than the discrete interests of a private party”). Rather, the Supreme Court has observed, “[w]hen the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.” Gen. Tel., 446 U.S. at 326. C. Only the March 26th letter constituted unequivocal notice of termination. Summer Classics does not dispute that the issue here is when Lowe received unequivocal notice of termination; it argues that the company’s February 21 letter should be characterized as unequivocal. See Def. Br. at 20- 21. But the word “unequivocal” is defined as “leaving no doubt: expressing only one meaning; leading to only one conclusion; clear, unambiguous.” Webster’s New Int’l Dictionary 2494 (3d ed. 1993). This Court’s case law further clarifies that “[w]hen an employee is left simply to infer and deduce his employment status from the surrounding events, no unequivocal communication of an adverse employment decision has occurred.” Wright v. AmSouth Bancorp., 320 F.3d 1198, 1203 (11th Cir. 2003) (emphasis in original); Stewart v. Booker T. Washington Ins., 232 F.3d 844, 849 (11th Cir. 2000) (employee must be “told that she is actually being terminated before the 180-day filing period begins to run, not that she might be terminated if future contingencies occur”) (emphasis in original). No stretch of the imagination permits the February 21 letter to be characterized as an “unequivocal” notice of termination. As we argued in our opening brief, the language of the February 21 letter is equivocal because it left open the possibility that Lowe could keep his job if he were to provide the requested medical information. See EEOC Br. at 23. It also anticipated the possibility of sanctions other than termination, stating: “. . . 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.” R-23 (emphasis added). The letter explicitly noted that the company hoped Lowe would “provide the information by the end of the week and that [he] will be able to safely return to work.” Id. Clark testified that Lowe would have been able to return to work following the letter if he had provided the medical information. R-20 (Clark Dep. 62). As Judge Posner has explained, the limitations period does not begin to run “as soon as the handwriting is on the wall.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 449 (7th Cir. 1991). Rather, it is triggered “on the date that the employee is given definite notice of the challenged employment decision.” English v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988) (emphasis added). Indeed, the Supreme Court’s decision in Delaware State College v. Ricks, 449 U.S. 250 (1980), is premised on an employee’s receipt of “final and unequivocal notice of an employment decision” because “[u]ntil that time, there is the possibility that the discriminatory decision itself will be revoked, and the contemplated action not taken.” Id. Here, the action was not definitively taken and communicated until Lowe received the March 26 letter. The district court committed reversible legal error in ruling otherwise. D. Lowe’s intake questionnaire constitutes a charge under Holowecki. In our opening brief, we argued that even if the February 21 letter triggered the limitations period, Lowe still has filed a timely charge because his July 21 intake questionnaire also constitutes a charge of discrimination. See EEOC Br. at 28-29. We pointed out that the questionnaire contained the basic charge requirements of Lowe’s name, address, telephone number, and 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. We also highlighted that Lowe, in a handwritten note attached to the questionnaire, alleged that Summer Classics violated the law and characterized his experience as “discrimination” and “a crime.” He stated that he was looking for an attorney. Lowe attributed the pain and suffering he experienced to the defendant’s actions, noting he was “depressed” and suffering from “fatigue, lack of sleep and appetite.” We argued that this communication made to the EEOC, taken as a whole, can be construed as a request for the EEOC to act, rather than merely a request for information. See id. at 30-32. Summer Classics argues in response that Lowe’s intake questionnaire and handwritten note “at best [are] an effort to provide relevant facts to the EEOC so it could make jurisdictional and counseling determinations.” Def. Br. at 25. In support of that assertion, the company offers several unpublished district court decisions. See id. at 24-25. But none of these cases precludes a finding that Lowe’s intake questionnaire here amounted to a charge under Holowecki. For instance, Nadesan v. Texas Oncology, No. 2:10-CV-239-J, 2011 WL 147570 (N.D. Tex. Jan. 18, 2011), turned on language written on the particular version of the intake questionnaire used—an advisory that “the Commission has jurisdiction over potential charges . . . and to provide such pre-charge filing as appropriate.” Id. at *4. The questionnaire in that case also stated “[a]n officer of the EEOC will review the information you provide and determine whether or not your allegations warrant a charge being filed.” See id. The district court in Nadesan maintained that “the language printed on the form does not raise the presumption that the questionnaire itself constitutes a charge.” Id. at *5. However here, Lowe filled out a different version of the intake questionnaire. In fact, on Lowe’s questionnaire, the fine print states: “When this form constitutes the only timely written statement of allegations of employment discrimination, the Commission will, consistent with 29 C.F.R. § 1601.12(b) and 29 C.F.R. § 1626.8(b), consider it to be a sufficient charge of discrimination under the relevant statute(s).” See R-26-6 at 5. Of course, while this language suggests that certain intake questionnaires like Lowe’s could indeed qualify as charges, the particular small print on any variation of the intake questionnaire is not dispositive. What matters, according to the Holowecki Court, “is whether the [the intake questionnaire] should be interpreted as a request for the agency to act.” 552 U.S. at 407. The opinion in EEOC v. Freeman, No. 09-cv-2573, 2010 WL 1728847 (D. Md. Apr. 27, 2010), also cited by Summer Classics as support, does not describe in any detail what information the charging party included with her intake questionnaire. It thus is unavailing for Summer Classics to attempt to make any kind of meaningful comparison between that decision and this case. Moreover, Freeman’s holding that the intake questionnaire was not a charge was based in part on the fact that the charging party filed a charge of discrimination the following month, which the court maintained “suggests that she was not requesting agency action at the time she filed her intake questionnaire.” Id. at *7. But the Supreme Court in Holowecki rejected that argument, as we pointed out in our opening brief. See EEOC Br. at 35-36. Post-Holowecki, if the documents filed with the EEOC could reasonably be interpreted as a request for the agency to act, “[p]ostfiling conduct does not nullify [such] an earlier, proper charge.” Holowecki, 552 U.S. at 406; see also Edge v. Wal-Mart Stores East, No. CV-107-153, 2008 WL 3927276, at *3 (S.D. Ga. Aug. 25, 2008) (status of the document as a “charge” is not dependent upon how the agency actually construes the document after receiving it). As we noted in our opening brief, the Commission’s practice is always to request that the charging party file a Form 5 charge, even in cases where previously-submitted documents constitute charges. See EEOC Br. at 36 n.8.<2> The charging party in Morrow v. Metropolitan Transit Authority, No. 08- CIV-6123, 2009 WL 1286208 (S.D.N.Y. May 8, 2009), attached a handwritten paragraph stating that the defendant’s leadership style punishes workers with excessive discipline and that “I can’t help feeling that this bad treatment is because of my race.” Id. at *2. The district court held that the questionnaire there was “an effort to provide relevant facts to the EEOC so it could make those determinations; it is not a request that the EEOC activate its enforcement machinery.” Id. at *6. Here, by contrast, Lowe detailed the request for records about his HIV-status, stated he was looking for an attorney, called the defendant’s behavior a “crime,” and listed the bases for potential pain and suffering damages. Thus, the cases relied on by Summer Classics are all distinguishable. As we argued in our opening brief, the case most squarely on point is Williams v. CSX Transportation, 643 F.3d 502, 510 (6th Cir. 2011), where 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. See EEOC Br. at 31-32 (discussing Williams). Like the Court in Williams, this Court should recognize that the statements submitted on the intake questionnaire reasonably can be viewed as a request by the charging party to activate the EEOC’s machinery. As we noted in our opening brief, under Holowecki, the Court should liberally construe Lowe’s communications with the EEOC to constitute a timely charge and err on the side of preserving Lowe’s statutory rights. See Holowecki, 552 U.S. at 406 (“Documents 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.”). E. Because it was obvious that there was not a significant risk that Lowe would transmit HIV to a coworker, the company’s conditioning his employment on producing additional medical records presented a patent violation of the ADA, that would signal the EEOC to take action on his intake questionnaire. In our opening brief, in arguing that Lowe’s intake questionnaire constituted a charge, we quoted Holowecki’s instruction 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 or required.” See EEOC Br. at 32 (citing Holowecki, 552 U.S. at 405). We argued that the allegations contained in Lowe’s questionnaire presented such a “clear” violation of the ADA given the impropriety of Summer Classics’ conditioning Lowe’s continued employment on producing medical information about his HIV-positive status when there was a virtually nonexistent risk that he would transmit HIV to anyone in his workplace. See EEOC Br. at 32-34. As we stressed in our opening brief, Lowe’s job as a boxer was to place soft cushions in cardboard boxes and tape them shut. R-23. He only occasionally was required to use a box cutter, and there is nothing to suggest that he ever cut himself on the job, or that if he did, anyone else would be in close enough proximity with him to come into contact with his blood. See EEOC Br. at 33 (citing record). We pointed out that Lowe’s doctor released him to work following his back treatment and indicated that the only risk of transmission would be if “someone has unprotected sex with him.” R-18. Lowe’s doctor even stated that there was “NO probability he will pose a risk to anyone in the workplace.” See EEOC Br. at 33-34 (quoting R-18) (emphasis in original). The Commission understands and respects an employer’s need to keep its employees and workplace safe. But the ADA sets the parameters around what an employer can do to act on a fear for safety. Generalized concerns over possible risks to workers cannot justify medical exams or inquiries of employees. A disability related inquiry of an employee must be “job related and consistent with business necessity,” and thus legal under the ADA, only when “an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” 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, available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html (emphasis added). Summer Classics maintains that its inquiries of Lowe were permissible under the ADA because Lowe’s HIV-positive status presented a risk to the health and safety of others. Def. Br. at 28. Summer Classics also contends that it had “good cause to request the information on Lowe’s medical condition.” Id. at 30. But that is not the standard. For a medical inquiry like the one made of Lowe to be legal, Summer Classics would have to have had a reasonable belief based on objective evidence that the risk of transmission would be significant. See 42 U.S.C. § 12111(3) (defining “direct threat” as a “significant risk to the health or safety of others than cannot be eliminated by reasonable accommodation.”). Summer Classics has only alleged that there was “a” risk, see, e.g., Def. Br. at 9, 28, and concedes that it required Lowe to prove that he presented “no risk to anyone.” See Def. Br. at 10, 11. Summer Classics offers an inaccurate and misleading rendition of the facts in its attempt to inflate the potential risk that Lowe would transmit HIV to a coworker. For example, Summer Classics argues that Lowe’s job duties presented “potential opportunities” for HIV transmission to fellow workers “given the use of box cutters, and occasional cuts and abrasions.” Def. Br. at 30. Yet Manager James Culp acknowledged that the majority of Lowe’s job duties presented no risk of bleeding. See R-22 (Culp Dep. 135-40). Culp did indicate that any possibility was a risk, testifying, for example, that sweeping, dusting, and mopping would not present a risk of bleeding but that he wouldn’t “rule out” a risk of bleeding with the task of “organizing the warehouse” given that an employee “might poke [his] finger” moving metal plates on the floor. See R-22 (Culp Dep. 137). This hardly constitutes the type of “objective evidence” required to support the reasonable belief of a significant risk of transmission by Lowe to others in the workplace. In its brief, Summer Classic states that Clark testified that she had seen plant employees “cut their fingers and somebody else just go with their hand to hold the blood.” See Def. Br. at 9 (citing Clark Dep. at 38-39). But the company neglects to mention that Clark was testifying that the accident she witnessed occurred in the sewing area of the plant, not the boxing area where Lowe worked. See R-20 (Clark Dep. at 39). The company also states that Lowe suffered “scrapes from rough box edges while performing his job duties,” (Def. Br. at 9-10 citing R-18 (Lowe Dep. at 32)). But Lowe’s testimony is that he had never bled on the job and had “not even” suffered a paper cut. R-18 (Lowe Dep. 32). Instead, his only “injury” was “just dry skin on a rough box edge.” Id. Summer Classics likens the facts in this case to that of an HIV-positive clerk working in the produce department of a grocery store in EEOC v. Prevo’s Family Market, Inc., 135 F.3d 1089 (6th Cir. 1998). The cases are not at all comparable. Key to the Sixth Circuit’s determination that the employer did not violate the ADA by requiring the employee to submit to a medical examination was the fact that the employee’s job required him to work with sharp knives in close proximity to other employees. Prevo’s, 135 F.3d at 1096 (“[I]t is the existence of exposure and transmission opportunities that are instrumental in determining if a medical examination is necessary.”). The court of appeals noted that “we are dealing with a professional environment in which there is continuous blood exposure,” and “frequency of bleeding in the produce area,” and where the plaintiff had testified to “scrapes, cuts, and puncture wounds incurred regularly in the course of his employment.” Id. at 1094, 1096. There was also evidence that the produce workers were in close proximity to one another, and that “it was not uncommon for Prevo’s workers to have several lacerations at the same time.” Id. at 1094. One witness testified that, when he worked in the produce department, employees shared knives and, at times, even “knives on which one had bled.” Id. In contrast, Lowe did not routinely work with knives or sharp objects, did not work in close proximity with other employees, and testified he had never cut himself on the job (and was not aware that anyone else in the box department had cut himself or herself). See EEOC Br. at 33 (citing to record). That Lowe was required to use a box cutter “occasionally,” (R-23 (job description)), does not make the risk that he would transmit HIV to a fellow employee “significant.” In fact: Transmission of HIV will rarely be a legitimate “direct threat” issue. It is medically established that HIV can only be transmitted by sexual contact with an infected individual, exposure to infected blood or blood products, or perinatally from an infected mother to infant during pregnancy, birth, or breast feeding. HIV cannot be transmitted by casual contact. Thus, there is little possibility that HIV could ever be transmitted in the workplace. See U.S. Dep’t of Justice Civil Rights Division, Disability Rights Section, Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS, question 9, available at www.ada.gov/pubs/hivqanda.txt; see also Roe v. City of Atlanta, No. 11-11758, 2012 WL 281766 (11th Cir. Feb. 1, 2012) (HIV-positive status was not a disqualifying factor for city’s police officers). The company argues that the EEOC’s position would require it to be “a medical expert in HIV infection without the benefit of medical information.” Def. Br. at 28. But, as we have noted, an assessment of risk must be based on objective evidence. An employer’s mere “belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability.” Bragdon v. Abbott, 524 U.S. 624, 649 (1998); see also Lowe v. Ala. Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001) (“To prevent the very reliance on stereotype 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.”). Summer Classics did not need to be a medical expert on HIV to know that the risk of Lowe transmitting HIV was virtually nonexistent given his job duties. It also did not have to obtain the information from Lowe’s HIV doctors (see Def. Br. at 12)—indeed, its decision to terminate Lowe for his failure to provide such information is the very violation at issue. Information about how HIV/AIDS is transmitted is widely and easily available. See, e.g., R-26-5 (Center for Disease Control and Prevention, Basic Information about HIV and AIDS); see also Center for Disease Control and Prevention, HIV Transmission Questions and Answers, available at www.cdc.gov/hiv/resources/qa/transmission.htm; EEOC Enforcement Guidance: Disability-Related Inquires and Medical Examinations of Employees under the Americans with Disabilities Act. Instead of taking minimal steps to educate itself, the company appears to have acted on myths and stereotypes about HIV transmission (as evidenced by Clark’s supposition 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). Thus, Summer Classics’ actions, described in Lowe’s intake questionnaire, evince just the sort of “clear” violation of the ADA, anticipated in Holowecki, requiring the EEOC to act. CONCLUSION For the foregoing reasons and the reasons stated in the EEOC’s opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel /s/ Julie L. Gantz ______________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,904 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. /s/ Julie L. Gantz Julie L. Gantz Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 Dated: February 24, 2012 CERTIFICATE OF SERVICE I, Julie L. Gantz, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system and filed 7 copies of the foregoing brief with the Court by next business day delivery, postage pre-paid, this 24th day of February, 2012. I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system and via overnight mail: Counsel for Defendant/Appellee: N. DeWayne Pope DEWAYNE POPE, LLC Brice Martin Johnson JOHNSTON LAW FIRM, P.C. The Landmark Center 2100 1st Avenue North Suite 600 Birmingham, AL 35203 /s/ Julie L. Gantz Julie L. Gantz Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 ********************************************************************************** <> <1> Other than citing to the defendant’s “belief” as to when he was terminated, the defendant did not elucidate in its summary judgment motion a legal theory as to why Lowe was terminated on February 23, 2007. The Commission responded by disputing any suggestion that Lowe was terminated on February 23, 2007, pointing out the correct termination date and supporting the correct date with a factual record. The defendant, in reply, did not dispute the EEOC’s argument or the factual record. <2> Summer Classics also relies upon Bost v. Fed’l Express Corp., 372 F.3d 1233, 1241 (11th Cir. 2004), for the proposition that because Bost filed a Form 5 charge of discrimination after he filed his intake questionnaire, he must not have believed he had filed a charge when he filed the questionnaire. See Def. Br. at 26. This reasoning, which predates Holowecki, was expressly rejected by the Holowecki Court, as explained in the text.