Equal employment Opportunity Commission v. Town & Country Toyota, Inc. 00-2167 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-2167 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. TOWN & COUNTRY TOYOTA, INC., Defendant-Appellee. On Appeal from the United States District Court for the Western District of North Carolina BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4059 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION This is a public enforcement action brought by the Equal Employment Opportunity Commission ("Commission") under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). The district court had jurisdiction of the case under 28 U.S.C. §§ 1331 and 1345. Final judgment was entered in the district court on June 27, 2000, disposing of all claims with respect to all parties. Joint Appendix ("J.A.") at 400. The Commission filed a timely notice of appeal on August 23, 2000. J.A. at 401; see F.R.A.P. 4(a)(1). This Court has jurisdiction of the district court's final judgment under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the Commission presented sufficient evidence to support a finding that the charging party has a "disability" within the meaning of the ADA, either because the defendant regarded the charging party as having a substantially limiting impairment or because the charging party has a record of a substantially limiting impairment. 2. Whether the Commission satisfied the qualifications element of the prima facie case where the evidence available at the time of the charging party's discharge shows that the charging party was performing his job at a level that met his employer's legitimate expectations. 3. Whether the Commission presented sufficient evidence to support a finding at the prima facie stage that the charging party's discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination where the evidence shows that the defendant's decision-maker fired the charging party because he perceived the charging party as significantly restricted in his ability to walk or "move around," a perception formed after the decision-maker learned that the charging party had "broken" his back in the past in a serious car accident. 4. Whether the Commission presented sufficient evidence to support a finding that the defendant's explanation for the charging party's discharge -- lack of sales skills -- was a pretext for discrimination, where the defendant's decision-maker acknowledged at the time of the discharge that the charging party possessed the requisite sales skills for the job, where the defendant's proffered explanation is entirely post-hoc and unsupported by any evidence contemporaneous to the discharge, and where there is direct evidence that the charging party was discharged because of the decision-maker's perception that the charging party needed to be "on disability" due to his "difficulty" in walking. STATEMENT OF THE CASE 1. Nature of the Case This case involves a claim of disability discrimination brought by the Commission at the behest of a charging party, Brian Mickles, who was terminated from his sales position with the defendant, Town & Country Toyota, Inc. ("T&C"). The Commission alleges that T&C discharged Mickles because of his disability in violation of the ADA. In this case, the Commission invokes the "regarded as" and "record of" prongs of the ADA's definition of disability. See 42 U.S.C. § 12102(2)(B)-(C). The Commission does not allege that Mickles has an actual disability within the meaning of the ADA. 2. Course of Proceedings The Commission initiated this action in June 1998. J.A. at 5. T&C moved for summary judgment in April 2000. Id. at 15. By order dated June 26, 2000, the district court granted summary judgment in T&C's favor. Id. at 374. The district court entered judgment on June 27, 2000. Id. at 400. 3. Statement of Facts a. Brian Mickles was involved in a serious automobile accident on March 5, 1995. J.A. at 122. Mickles suffered a spinal cord injury in the accident, which left him partially paralyzed. Id. at 125, 128. Mickles underwent bone graft surgery on his spinal cord and was transferred on March 20, 1995, to the Shepherd Spinal Center in Atlanta, Georgia. Id. at 221-23. The initial diagnosis, at the Shepherd Center, was that Mickles would never walk again. Id. at 126. Mickles remained hospitalized at the Shepherd's Center for nearly two months. Id. at 227. During that period, Mickles required substantial assistance in carrying out a number of daily life activities, including going to the bathroom, getting dressed, using his wheelchair, shaving, bathing, and washing his hair. Id. at 253-55. Mickles left the Shepard Spinal Center on May 5, 1995. Id. at 227. At that point, Mickles had begun to recover some sensation and movement in his hands and legs. Id. at 227-28. Mickles was still unable to walk. Id. Mickles next received outpatient therapy at the Roger C. Peace Center in Greenville, South Carolina. Id. at 126, 235. After two to three months of outpatient care, Mickles' condition improved to the point that he could walk for short intervals with forearm crutches. Id. at 64-65. When not using crutches, Mickles continued to move about by use of a wheelchair. Id. Over the next several months, Mickles continued in his rehabilitation efforts. By the end of 1996, Mickles was able to walk with the assistance of a cane. Id. at 65. b. In July 1997, Mickles applied for a sales position with T&C. J.A. at 170. Mickles stated in his application that he "[u]sed to be paralyzed" and that "he had a bone removed from [his] hip to [his] neck." Id. at 359. Mickles went through a sales training seminar and was interviewed by T&C's General Sales Manager, Dennis Koenig. Id. at 151, 171. Koenig claims that he did not see the reference in Mickles' application to his disability history and, thus, was not aware of that history at the time that he hired Mickles. Id. at 346. Koenig was aware, however, that Mickles walked with a limp. Id. at 335. Koenig hired Mickles, who began selling cars on August 2, 1997. Id. at 171. Mickles worked for T&C from August 2, 1997, through September 5, 1997. Id. at 378. During that period, Mickles was credited with selling six and one-half cars. Id. at 164, 216-17. According to Koenig, such a sales record is typical of what one would expect of a new salesperson. Id. at 340 (stating that selling 6 cars is "not bad" for the first month on the job). Although managers were available to assist salespersons in the actual selling of cars, on only one occasion did Mickles require the assistance of a manager to help sell a car.<1> Id. at 162-64, 172-85. There is no contemporaneous evidence that Mickles' performance was anything less than satisfactory. Mickles was never told by Koenig (or any other T&C manager) that he was performing his job in an unsatisfactory fashion. Id. at 186-87. T&C, moreover, has no documents, prepared at the time, to indicate that Mickles was not performing the job satisfactorily. Although Mickles was never told that his performance was inadequate, Koenig did raise questions about Mickles' physical condition. About a week into Mickles' employment, Koenig asked Mickles why he had a "problem" with walking. Id. at 297. Mickles responded that he had "broken" his back in a car accident. Id. Koenig believed that Mickles "obviously . . . had a disability" because "[h]e couldn't move around like other people could." Id. at 277. Koenig "made a point" of sharing these concerns with Mickles during Mickles' employment with T&C. Id. at 332. Despite Mickles satisfactory job performance, Koenig terminated Mickles' employment on September 5, 1997. Id. at 378. In informing Mickles that he was being let go, Koenig reiterated his concerns with what he perceived as Mickles' physical limitations. Koenig remarked, "son, I've been looking at you for the last two weeks, and when I look at you walking, selling these cars, you look like [you're] in agony. Son, you need to be on disability." Id. at 190. Koenig went on to say that he had to let Mickles go because "the black top is not a career thing for you. . . . I'm not saying you're not a good salesman. . . . It's just that I don't [think] the black top is a career thing for you." Id. at 190-91. After terminating Mickles' employment, Koenig spoke to another company official concerning the reasons for Mickles' discharge. Koenig explained to this official that Mickles "could have done the job, that he had the . . . resources to sell cars." Id. at 356. Koenig's view at the time was that Mickles "can make a good salesperson." Id. Mickles filed a charge of discrimination with the Commission. T&C filed a response to the charge, signed by Koenig.<2> In that response, T&C confirmed that, in terminating Mickles' employment, Koenig made the comment "that Mr. Mickles appeared to be in pain and have difficulty in walking." Id. at 351. Koenig "also asked that [Mickles] consider disability if the problem was that severe." Id. T&C stated that "Mr. Mickles' selling skills seemed satisfactory," adding that "the position does require a degree of mobility due to the size of the sales lot, and the need to escort a customer according to the customer's desires all over a rather large car lot." Id. T&C concluded that "Mr. Mickles would be welcome to return to his sales position, provided he could perform the responsibilities of the position without putting the company 'on notice' about the burdens that the job are putting him through." Id. c. After the Commission filed suit, the parties conducted extensive discovery in the district court. Koenig was deposed and testified at some length about his perceptions of Mickles' physical limitations. Koenig opined that Mickles was "considerably slower than a person with an ordinary walking ability" and "[o]bviously, . . . didn't have the mobility everybody else did." J.A. at 277-78. Koenig offered the view that Mickles "has a problem walking. You've seen him. Anything that he had to do to walk is a problem. I mean, to walk from here to the men's room." Id. at 306. In Koenig's view, "you didn't have to watch [Mickles] walk 100 feet to figure out that he had a disability." Id. at 278. Koenig also expressed discomfort with having to watch Mickles on the job. Koenig admired Mickles for taking the "initiative to try and get a job" but questioned why Mickles would "want to go through that" insomuch as "[o]bviously a lot of times he was in pain." Id. at 284. Koenig observed that "I wouldn't want to be his age and have to bear that disability the rest of my life given what I saw him walk around like." Id. at 311. Koenig stated that there were times that it made "even me hurt watching [Mickles] move around." Id. at 284. In fact, according to Koenig, it made "anybody kind of feel [a] little bad just watching [Mickles] get around." Id. at 61. Koenig admitted in his deposition that he never "formally" warned Mickles that "his employment was in jeopardy because of his sales techniques or performance." Id. at 274-75. Koenig admitted that no one ever complained to him, at the time, about Koenig's job performance. Id. at 333. Koenig also conceded in his deposition that, at the time he discharged Mickles, he "didn't know anything about [the ADA]." Id. at 313.<3> T&C moved for summary judgment. T&C argued that Mickles did not have a covered disability. Id. at 25-39. For the first time, T&C also argued that Mickles had been let go because of specific deficiencies in his performance as a salesman. Specifically, T&C contended that Mickles "lacked basic sales skills and abilities," "required excessive amounts of assistance from the sales managers to close his sales," "lacked effective communication skills," and "did not have a good knowledge of the products, warranties and financing options." Id. at 42. T&C gleaned these assertions from selected excerpts of Koenig's deposition testimony and from an affidavit of a sales manager, Stewart Abbott, prepared some 14 months after the Commission filed its lawsuit. Id. at 368. Notably, T&C did not claim that it discharged Mickles because of any performance deficiency linked to the residual limitations imposed by Mickles' spinal cord injury. In its response to T&C's motion for summary judgment, the Commission clarified that it was not proceeding under an actual disability theory. Id. at 68. Instead, the Commission invoked coverage under the "regarded as" and "record of" prongs of the ADA's definition of disability. Id. at 66-72. The Commission argued that T&C terminated Mickles' employment because it regarded him as substantially limited in his ability to walk, as evidenced by Koenig's statements concerning his perception of Mickles' physical condition. Id. at 67-69. Alternatively, the Commission argued that T&C discharged Mickles because of Mickles' record of a substantially limiting impairment. Id. at 70-72. The Commission urged that T&C's newly-hatched performance-based explanations for its decision to terminate Mickles were a pretext for discrimination. Id. at 75-78. d. By order dated June 26, 2000, the district court granted T&C's motion for summary judgment. J.A. at 374. The court first ruled that the evidence was insufficient to support a finding that Mickles had an actual disability within the meaning of the ADA. Id. at 383-89. The court discussed this point at some length, despite the Commission's explicit disclaimer that it was not proceeding under an actual disability theory. Next, the court held that the Commission's claim failed under a "regarded as" theory. The court concluded that "Koenig's statements establish nothing more than that he understood that Mickles had difficulty and experienced pain when he walked." Id. at 390. In the court's view, these statements "do not demonstrate that Mr. Koenig believed Mickles' impairment substantially limited his ability to perform any major life activity." Id. The court also found that the Commission's "show of proof that Mickles was 'regarded as' having a disability is particularly weak in this case where Mickles plainly noted his history of disability on his employment application and Mr. Koenig hired him -- for a position which required walking -- with full knowledge of that history and of the current difficulty he had walking." Id. at 391. The court opined that "no reasonable jury could conclude, based on this evidence, that [T&C] hired an individual it regarded as substantially limited in walking, put him in a position which required substantial walking, then intentionally discriminated against him by firing him a month later." Id. Although rejecting the Commission's "regarded as" claim, the court did not address the Commission's alternative theory for coverage, i.e., Mickles had a "record of" a substantially limiting impairment. Nonetheless, in its factual recitation, the court appeared to agree with the Commission that Mickles had a "'record of disability'" and that T&C was aware of that record at the time that it discharged Mickles. Id. at 376-77. The court also ruled that the Commission's claim foundered on the issue of qualifications. The court urged that, to satisfy the qualifications" prong of the prima facie case, the Commission was required to "demonstrate that Mickles was performing his job at a level that met [T&C's] legitimate expectations." Id. at 392. The court found that T&C's proofs "establish management's conclusion that Mickles was not meeting his employer's legitimate and reasonable expectations at the time of his discharge." Id. Specifically, "the sales managers concluded that Mickles lacked effective sales skills and abilities; did not have a satisfactory knowledge of products, warranties, or financing options; and required an excessive amount of their time to close a sale." Id. The court acknowledged that there "is undoubtedly some subjective element in such a judgment" but stressed that it is not "the role of the federal courts to second-guess such judgments of employers." Id. at 392-93. Finally, the court held that the Commission's evidence was insufficient to "establish that Mickles was discharged 'because of' his disability." Id. at 393. In the court's view, "the only evidence that arguably establishes discharge 'because of' disability are statements made by Mr. Koenig during the termination conference." Id. The court found that these statements "simply establish that Koenig was aware of Mickles' difficulty and apparent pain in walking, and sought to soften the termination message by suggesting to him that a career without so much walking might be a better choice." Id. The court concluded that the Commission could not "overcome the legitimate, nondiscriminatory reasons [T&C] has articulated because it cannot establish 'intentional discrimination.'" Id. at 394. The court reiterated its view that "the law creates a 'strong inference' against discrimination when the hirer and firer are the same individual, as here, and the protected status (here, the disability) is known to the employer at the outset of the employment relationship."<4> Id. SUMMARY OF ARGUMENT The district court erred in granting summary judgment in T&C's favor. The Commission presented sufficient evidence to support a finding that Mickles has a covered disability under the ADA. T&C's decision-maker, Dennis Koenig, made repeated references to what he perceived as the limitations imposed by Mickles' impairment. These statements, taken together, support a finding that T&C regarded Mickles as substantially limited in the major life activity of walking. The district court's view that the Commission could not proceed under a "regarded as" theory because the same person that fired Mickles (Koenig) was the person who hired him ignores the fact that Koenig was not aware of Mickles' disability history at the time that he hired him and that Koenig's perceptions were formed by his day-to-day contact with Mickles on the job. In any event, the evidence clearly shows that Mickles has a record of a substantially limiting impairment. That is sufficient, by itself, to provide coverage under the "record of" prong of the ADA's definition of disability. The Commission also presented sufficient evidence to satisfy the qualifications element of the prima facie case. The evidence shows that Mickles sold several cars during his brief tenure with T&C. Mickles did so without being warned that his performance was deficient. There is no documentary evidence, contemporaneous to the events in question, showing that T&C was dissatisfied with Mickles' performance. The post-hoc evidence of Mickles' supposed deficiencies in sales skills, rooted in the "subjective" assessments of T&C's managers, does not defeat the Commission's case at the prima facie stage. Likewise, the Commission presented sufficient evidence to support a finding at the prima facie stage that the charging party's discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. There is direct evidence that Koenig discharged Mickles because he became aware of Mickles' disability history and regarded him as somebody who should be on disability due to what Koenig perceived as Mickles' difficulty in walking. That evidence is sufficient to support a finding of disability-based discrimination under either a "regarded as" or "record of" impairment theory. Finally, the Commission presented sufficient evidence to support a finding that T&C's proffered explanation for Mickles' discharge -- lack of sales skills -- is a pretext for discrimination. Koenig acknowledged at the time of the discharge that Mickles possessed the requisite sales skills for the job. T&C's proffered explanation is entirely post-hoc and unsupported by any evidence contemporaneous to the discharge. There is direct evidence, moreover, that Mickles was discharged, not because of a lack of sales skills, but because of Koenig's perception that Mickles needed to be "on disability" due to his "difficulty" in walking. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF T&C. Standard Of Review The district court resolved this case on summary judgment. This Court reviews a grant of summary judgment de novo, viewing all facts and inferences in the light most favorable to the non-moving party. See Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary judgment is proper only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id. The Commission's Evidence Is Sufficient To Support A Finding That Mickles Has A "Disability" Within The Meaning Of The ADA The first issue raised by this appeal is whether the district court erred in ruling that the Commission's evidence is insufficient to support a finding that Mickles has a covered "disability" under the ADA. The Commission believes that it produced sufficient evidence to support a finding of "disability" under either a "regarded as" or "record of" theory. The ADA makes it unlawful for an employer to discriminate against a "qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). The term "disability" is defined to include three categories of coverage. An individual has a disability if the individual has "a physical or mental impairment that substantially limits one or more of the major life activities of [the] individual." 42 U.S.C. § 12102(2)(A). An individual has a disability if the individual has "a record of such an impairment." 42 U.S.C. § 12102(2)(B). Finally, an individual has a disability if the individual is "being regarded as having such an impairment." 42 U.S.C. § 12102(2)(C). The "regarded as" prong of the ADA's definition of disability applies, inter alia, when an individual has an impairment "which is not substantially limiting but is perceived by the employer or other covered entity as constituting a substantially limiting impairment." Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. 1630 App., § 1630.2(l). The rationale for the "regarded as" category is simple: "although an individual may have an impairment that does not in fact substantially limit a major life activity," the impairment may, nonetheless, pose a barrier to employment because of "'society's accumulated myths and fears about disability and diseases.'" Id. As the Supreme Court has explained, in adopting the "regarded as" category (in the ADA's predecessor statute, the Rehabilitation Act of 1973), Congress "was as concerned about the effect of an impairment on others as it was about its effect on the individual." School Bd. of Nassau County v. Arline, 480 U.S. 273, 282 (1987). In particular, Congress was concerned that an impairment, which "might not diminish a person's physical or mental capabilities," could "nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment." Id. at 283. This case lines up as a textbook "regarded as" case. Mickles has an impairment that is not, at this point, substantially limiting. The evidence shows, however, that T&C's principal decision-maker, Dennis Koenig, perceived the impairment as substantially limiting. Koenig believed that Mickles "obviously" had a "disability" because "[h]e couldn't move around like other people could." J.A. at 277. Koenig was of the opinion that Mickles was "considerably slower than a person with an ordinary walking ability" and "[o]bviously . . . didn't have the mobility everybody else did." Id. at 277-78. Koenig declared that "you didn't have to watch [Mickles] walk 100 feet to figure out that he had a disability." Id. at 278. Indeed, in Koenig's view, "[a]nything that [Mickles] had to do to walk is a problem. I mean, to walk from here to the men's room." Id. at 306. These proofs support a finding that T&C regarded Mickles as substantially limited in the major life activity of walking, i.e., regarded him as "significantly restricted" as to the "condition" or "manner" under which he walked, as compared to "the average person in the general population." 29 C.F.R. § 1630.2(j)(1)(ii). The district court ruled that the Commission's evidence was insufficient on this point because Koenig's statements "establish nothing more than that he understood that Mickles had difficulty and experienced pain when he walked." J.A. at 390. This understates the depth of Koenig's perception of Mickles' limitations. Koenig did not merely believe that Mickles had difficultly in walking. Koenig believed that Mickles' condition was so severe that he needed to "be on disability." Id. at 190. Koenig, moreover, was plainly made uncomfortable by Mickles' condition. Koenig confessed that he was sometimes "hurt" by having to watch Mickles move around. Id. at 284. Koenig believed that it made "anybody kind of feel [a] little bad just watching [Mickles] get around." Id. at 61. Koenig questioned why somebody in such "obvious" pain would "want to go through that" to work at a job, commenting that "I wouldn't want to be his age and have to bear that disability the rest of my life given what I saw him walk around like." Id. at 284, 311. These condescending statements reflect precisely the kind of "attitudinal barriers" that are as "'handicapping as are the physical limitations that flow from actual impairment.'" Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. 1630 App., § 1630.2(l); see McInnis v. Alamo Community College Dist., 207 F.3d 276, 281 (5th Cir. 2000) (teacher with slurred speech regarded as substantially limited in speaking where evidence showed that decision-makers referred to his condition as a disability); Riemer v. Illinois Dep't of Transp., 148 F.3d 800, 807 (7th Cir. 1998) (iron worker was regarded as substantially limited in breathing where decision-maker believed that the worker's continued employment in a confined environment posed a threat to his health; decision-maker relied on doctor's recommendation that the worker "might want to consider a different line of employment" in light of the worker's "difficulty" in breathing); Doane v. City of Omaha, 115 F.3d 624, 628 (8th Cir. 1997) (plaintiff was regarded as substantially limited in the ability to see where decision-maker acknowledged that he perceived the plaintiff's visual problem as a significant limitation); H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 53 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 335-36 ("regarded as" prong triggered by evidence that the employer has a "fear of the 'negative reactions' of others to the individual, or because of the employer's perception that the [individual] has an impairment that prevents that person from working"). The court also ruled that the Commission's proof was insufficient because the same person who fired Mickles, Koenig, had also hired him "with full knowledge of [his disability history] and of the current difficulty he had walking." J.A. at 391. There are two problems with this ruling. First, Koenig claims that he was not aware of Mickles' history of paralysis at the time that he hired him. By his own account, he did not become aware of Mickles' disability history until a week into Mickles' employment. In addition, the evidence shows that Koenig's perceptions of Mickles' impairment were formed, over time, by his day-to day interactions with him on the job. It is one thing to observe, during a brief interview, that an individual has an impairment. It is another thing to encounter that impairment, face-to-face, on a daily basis. Koenig was made uncomfortable by Mickle's impairment, as he perceived it. That discomfort did not arise until Koenig had an opportunity to watch Mickles "move around" the workplace. Id. at 277. This is not a case in which the person responsible for terminating the claimant is the same person who hired the claimant "with full knowledge of [his] disability." Tyndall v. National Educ. Centers Inc. of California, 31 F.3d 209, 214 (4th Cir. 1994). This is a case in which the relevant "knowledge" is the perception itself, a perception that did not arise until after the employment relationship was formed. A reasonable jury could conclude that, regardless of Koenig's views at the time he hired Mickles, Koenig regarded him as disabled at the time he terminated his employment. The evidence is also sufficient to support a finding of coverage under the "record of" prong of the ADA's definition of disability. The "record of" prong covers those cases in which an individual has a history of a physical or mental impairment that, at some point in the past, substantially limited one or more major life activities. 29 C.F.R. § 1630.2(k). "The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability." Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. 1630 App., § 1630.2(k). The "record of" category is closely intertwined with the "regarded as" category, reflecting a desire to "combat the effects of erroneous but nevertheless prevalent perceptions" with respect to individuals who, "'at present,'" have "'no actual incapacity.'" Arline, 480 U.S. at 279. It is clear on this record that Mickles has a history of a substantially limiting impairment. Mickles was involved in a serious car accident that left him paralyzed. The initial diagnosis was that Mickles would never walk again. Mickles received inpatient care for two months. During that period, Mickles required assistance in going to the bathroom, dressing himself, using his wheelchair, shaving, bathing, and washing his hair. Even after he left the hospital, Mickles could not walk. Mickles went through months of rehabilitation. Not until the end of 1996, some 21 months after the accident, was Mickles able to walk with the assistance of a cane. Plainly, Mickles' impairment was, at some point, substantially limiting. See EEOC v. R.J. Gallagher Co., 181 F.3d 645, 648-50, 655-56 (5th Cir. 1999) (evidence that claimant had a condition that required 30 days of hospitalization with residual effects for a brief period after the hospitalization sufficient to support record of claim if, during that time-frame, the condition imposed substantial limitations on one or more major life activities); Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir. 1998) (a "severe condition" was substantially limiting where its "anticipated duration was indefinite, unknowable, or was expected to be at least several months"); Leicht v. Hawaiian Airlines, Inc., 77 F. Supp. 2d 1134, 1148-49 (D. Hawaii 1999) ("record of" case supported by evidence that plaintiff had a severe case of cancer that significantly restricted major life activities for a period of four months); O'Keefe v. Varian Assocs., Inc., 1998 WL 417498, **17-18 (N.D. Ill. July 23, 1998) (significant restrictions on major life activities give rise to covered disability where the duration of the restrictions are "'indefinite or unknowable or . . . expected to be at least several months'"); 2 EEOC Compliance Manual, Interpretations (CCH) § 902.4, ¶ 6884, p. 5319 (1995) ("Although short-term, temporary restrictions generally are not substantially limiting, an impairment does not necessarily have to be permanent to rise to the level of a disability. Some conditions may be long-term or potentially long-term, in that their duration is indefinite and unknowable or is expected to be at least several months. Such conditions, if severe, may constitute disabilities."). Although argued by the Commission, the district court did not address the "record of" issue in ruling upon T&C's motion for summary judgment. The court appeared to assume, however, that Mickles had a "record of disability" within the meaning of the ADA. J.A. at 376-77. The court's assumption is correct. The evidence in this case is clearly sufficient to support a finding of threshold coverage under the ADA. The Commission Presented Sufficient Evidence To Establish A Prima Facie Case Of Disability Discrimination The disability point aside, the district court also held that the Commission could not make out a prima facie case of disability discrimination. This Court has held that, in a "typical discharge case brought under the ADA," where the employer's motivation for the adverse employment action is at issue, the plaintiff's claim is analyzed under "the now familiar, burden-shifting framework" established under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ennis v. National Ass'n of Business and Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). In such a case, the McDonnell Douglas proof scheme fulfills the same role under the ADA as it does under other federal anti-discrimination statutes: it "fine-tune[s] the presentation of proof" and "sharpen[s] the focus on the ultimate question -- whether the plaintiff successfully demonstrated that the defendant intentionally discriminated against her." Ennis, 53 F.3d at 59. This Court has formulated a four-pronged prima facie case for the "typical discharge case brought under the ADA." Id. at 58. Under that formulation, a plaintiff must show that: "(1) she was in the protected class; (2) she was discharged; (3) at the time of her discharge, she was performing her job at a level that met her employer's legitimate expectations; and (4) her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination."<5> Id. In this case, there is no dispute that Mickles was discharged. Whether Mickles is a member of the "protected class" is discussed above. This leaves the final two elements of the prima facie case. Taking the qualifications point first, the Commission's evidence is sufficient to support a finding that, "at the time of the discharge, [Mickles] was performing [his] job at a level that met [his] employer's legitimate expectations." Id. The evidence shows that Mickles received training to be a salesperson. Mickles worked for T&C for over a month. During that period, Mickles sold several cars. Mickles was never criticized for his performance. Mickles did not receive any warnings that his performance fell below T&C's expectations. There is no documented evidence that Mickles' performance was anything less than satisfactory. The Commission's burden at the prima facie stage is "not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The evidence in this case is sufficient to discharge that burden. Cf. Ennis, 53 F.3d at 61 (plaintiff could not show that she was performing her job at a level that met her employer's legitimate expectations where there was "undisputed evidence," in the form of contemporaneous "performance evaluations" and "internal memoranda," documenting the employer's dissatisfaction with the plaintiff's job performance). In ruling against the Commission on the qualifications issue, the district court relied upon "management's conclusion" that Mickles was not meeting T&C's legitimate expectations at the time of his discharge because he "lacked effective sales skills and abilities; did not have a satisfactory knowledge of products, warranties, or financing options; and required an excessive amount of their time to close a sale." J.A. at 392. As the district court conceded, however, this evidence goes to T&C's "subjective" assessment of Mickle's job performance (id.), not to the minimal objective evidence of job performance relevant to the prima facie showing of qualifications. See, e.g., EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1192-94 (10th Cir. 2000) (evidence that claimant "possessed the basic skills necessary to perform the [job]" sufficient to satisfy the qualifications element of the prima facie case; claimant's "subjective qualifications . . . are more properly considered at the second stage of the McDonnell Douglas analysis"); Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 135 (7th Cir. 1985) (policies behind the McDonnell Douglas standard are best served by "limiting the prima facie showing of 'qualification' to relative objective qualifications;" "subjective job qualifications" are not an element of the prima facie case); Valentino v. United States Postal Serv., 674 F.2d 56, 71 n.24 (D.C. Cir. 1982) (qualifications that a claimant "must grapple with in the first instance are threshold or 'minimum objective' qualifications'"; "[s]ubjective qualifications" are "appropriately introduced on rebuttal"); Ludwig v. Northwest Airlines, Inc., 98 F. Supp. 2d 1057, 1065 (D. Minn. 2000) (in order to be deemed qualified at the prima facie stage, plaintiff "need only establish that she met the minimum 'objective qualifications for the job'"; "[s]ubjective qualifications of the employee are analyzed later, under step two of the analysis"). The evidence referenced by the district court, moreover, is entirely post-hoc. When Koenig terminated Mickles, he specifically told Mickles that he was "not saying you're not a good salesman." J.A. at 190. He also informed another company official that Mickles had the skills to be a good salesman. Koenig did not, at the time, reference any deficiencies in Mickles' abilities as a salesperson. In response to Mickles' charge, T&C reiterated that "Mickles' selling skills seemed satisfactory." Id. at 351. The supposed deficiencies in Mickles' sales skills were advanced, for the first time, in T&C's memorandum in support of its motion for summary judgment. The after-the-fact justifications offered by T&C are suspicious in the least and do not, as a matter of law, defeat the Commission's case at the prima facie stage. The remaining issue, at the prima facie stage, is whether the Commission presented sufficient evidence to support a finding that Mickles' discharge "occurred under circumstances that raise a reasonable inference of unlawful discrimination." Ennis, 53 F.3d at 58. The Commission satisfied its burden on this issue for two reasons. First, as discussed above, there is substantial evidence that Koenig terminated Mickles because of his perception that Mickles was substantially limited in his ability to walk. Only a few weeks into Mickles' employment, Koenig began to raise questions about what he perceived as Koenig's "problem" with walking. J.A. at 297. Koenig believed that Mickles "obviously . . . had a disability" because "[h]e couldn't move around like other people could." Id. at 277. Koenig "made a point" of sharing these concerns with Mickles during Mickles' employment with T&C. Id. at 332. When he terminated Mickles, Koenig remarked that Mickles looked like he was "in agony" when he walked; Koenig advised Mickles that he "need[ed] to be on disability." Id. at 190. If this evidence is sufficient to support coverage under the "regarded as" prong of the ADA's definition of disability, it is certainly sufficient to support a finding that T&C discharged Mickles under circumstances that "raise a reasonable inference of unlawful discrimination." Ennis, 53 F.3d at 58; see McInnis, 207 F.3d at 282 (evidence in "regarded as" case supported a finding that the claimant was terminated because of his disability where the explanations given for the termination at the time of the termination were "related to and predicated upon [the claimant's] perceived disabilities"); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 303 (4th Cir. 1998) (evidence that employer demoted employee because it believed that he would not be able, due to his health, to handle the stress of the position provided "direct evidence" that the employer demoted the employee because of his disability, i.e., "because it perceived him to be disabled"). The evidence also supports a finding that T&C was aware of Mickle's record of disability and relied upon that record in terminating Mickles' employment. See Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. 1630 App., § 1630.2(k) (suggesting that causation standard is met in a "record of" case "if a record relied upon by an employer indicates that the individual has or has had a substantially limiting impairment"). Mickles referenced his disability history on his employment application. Although Koenig claims that he was not aware of that history at the time that he hired Mickles, Koenig later learned from Mickles himself that Mickles had "broken" his back in a serious automobile accident. J.A. at 297. Even if Koenig did not have all of the details of Mickles' record of disability, he knew enough to be charged with knowledge of the record. The district court, in fact, acknowledged as much. See id. at 376 (stating that T&C "clearly knew of Mickles' 'record of disability'"). It is less clear that Koenig relied upon that record as such, as opposed to his perceptions of Mickles' physical limitations, in terminating Mickles' employment. Koenig did not reference Mickles' disability history at the time of the termination. Yet, Koenig was aware of that history. Koenig began expressing concerns about Mickles' condition after he learned of that history. Koenig's statement that Mickles should go "on disability," made at the time of Mickles' termination, suggests some connection to Mickles disability history. A reasonable jury could conclude that Koenig relied upon Mickles' history of a substantially limiting impairment, at least in part, in terminating Mickles' employment. In this case, moreover, there is a clear nexus between Mickles' record of a substantially limiting impairment and the residual effects of that impairment, giving rise to the current perception of disability. Mickles was involved in an accident that left him partially paralyzed for several months. Mickles eventually recovered to the point that his impairment was no longer substantially limiting. The impairment, however, was not without its residual effects, the very effects that provided the grist for Koenig's perceptions. In cases of this nature, there is no need to split hairs as to which factor -- the record or the perception -- caused the adverse employment action. Evidence that the employer took action against the individual, due to the residual effects of an impairment that was once substantially limiting, is enough to support a record of claim. See Arline, 480 U.S. at 281-83 (record of impairment claim supported by evidence that an employer discharged an employee because of its perception of the "contagious effects" of a condition that had been substantially limiting at some point in the past). As the Supreme Court has explained, a plaintiff's burden at the prima facie stage of a case of disparate treatment discrimination is "not onerous." Burdine, 450 U.S. at 252-53. The issue, at that stage, is not whether the plaintiff has carried its burden on the ultimate issue of discrimination. The issue is whether the plaintiff's evidence is sufficient to support an "inference of unlawful discrimination," thus necessitating further inquiry at the pretext stage of the analysis. Id. at 253. The Commission has met its threshold burden in this case. The Commission Presented Sufficient Evidence To Support A Finding That T&C's Proffered Explanation For The Discharge Is A Pretext For Discrimination The final issue raised by this appeal is whether the Commission's proof is sufficient to "overcome the legitimate, nondiscriminatory reasons [T&C] has articulated." J.A. at 394. As the Supreme Court recently confirmed, a trier of fact may infer discrimination from "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false." Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2109 (2000). In this case, there is ample evidence to support a finding that T&C's proffered explanation for Mickles' discharge is "false" and, thus, a pretext for discrimination. First, T&C's proffered explanation conflicts with the statements of its own decision-maker, made at the time of the discharge. T&C claims that it fired Mickles because Mickles "lacked basic sales skills and abilities," "required excessive amounts of assistance from the sales managers to close his sales," "lacked effective communication skills," and "did not have good knowledge of the products, warranties and financing options." J.A. at 42. Yet, at the time of the discharge, Koenig offered a different view of Mickles' sales skills. Koenig informed Mickles that he was "not saying you're not a good salesman." Id. at 190. Koenig told another company official that Mickles had the resources to "make a good salesperson." Id. at 356. T&C's official response to Mickles' EEOC charge, prepared with Koenig's input, specifically states that "Mr. Mickles' selling skills seemed satisfactory." Id. at 351. The fact that T&C's litigation position is at odds with its own decision-maker's contemporaneous statements is powerful evidence of pretext. See, e.g., McInnis, 207 F.3d at 283 (finding of pretext supported by evidence of "contradictions" between the defendant's proffered explanation and the contemporaneous statements and actions of its decision-makers); Alvarado v. Board of Trustees of Montgomery Community College, 928 F.2d 118, 122-23 (4th Cir. 1991) (evidence supported a finding of pretext where the employer's "post-hoc assertion at trial that [employee] was fired for unsatisfactory job performance" was "not supported by the record facts;" evidence showed that plaintiff was told at the time of the discharge that he was being discharged for "lack of work"); Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229-31 (6th Cir. 1990) (finding of pretext supported by evidence that the employer's performance-based explanation for a discharge conflicted with the contemporaneous assessments of its own decision-maker); Schmitz v. St. Regis Paper Co., 811 F.2d 131, 132-33 (2d Cir. 1987) (finding of pretext supported by evidence that employer's "elaborate and sophisticated reason" for the discharge, offered in litigation, conflicted with the more contemporaneous explanation provided in response to the claimant's charge of discrimination). T&C's proffered explanation, moreover, is entirely post-hoc. T&C's explanation is drawn from two sources: (1) an affidavit of one of its managers, prepared some 14 months after the Commission filed its lawsuit; and (2) carefully excerpted passages of Koenig's deposition. The contemporaneous evidence presents a different picture. Mickles was never told that his performance was anything less that satisfactory. Mickles received no warning that his job was in jeopardy "because of his sales techniques or performance." J.A. at 274-75. T&C can cite no documentary evidence, contemporaneous to the events in question, reflecting any dissatisfaction with Mickles' job performance. The evidence shows that Koenig, at time of the events in question, expressed concerns with what he perceived as the limitations imposed by Mickles' condition. It does not show that Koenig, or any other T&C official, expressed concerns with Koenig's sales skills.<6> See Reeves, 120 S. Ct. at 2107 (finding of pretext supported by evidence that the defendant's proffered explanation for a discharge was not supported by any documentary evidence contemporaneous to the discharge); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998) (plaintiff presented "substantial evidence of the unreliability of the reasons proffered by the employer" where "[a]ll of the evidence supporting the employer's proffered reasons came from statements, depositions, and declarations prepared after the employment decision was made and while this litigation was in progress," which "proffered reasons" did "not appear in the contemporaneous memorandum prepared at the time of the [employment decision]"); Lloyd v. Georgia Gulf Corp., 961 F.2d 1190, 1194-95 (5th Cir. 1992) ("when an employer's stated motivation for an adverse employment decision involves the employee's performance, but there is no supporting documentation, a jury can reasonably infer pretext"). Finally, there is direct evidence that Koenig terminated Mickles' employment because of his perception that Mickles was substantially limited in his ability to walk or "move around." J.A. at 277. In his termination conference, Koenig mentioned nothing about deficiencies in Mickles' "basic sales skills and abilities." Instead, he commented that Mickles appeared to be in "agony" when he walked and ought to go "on disability." Id. at 190-91. Even in his subsequent deposition, Koenig made repeated references to what he perceived as Mickles' difficulties in walking, referring to Mickles' condition, on more than one occasion, as a "disability." Id. at 277-78, 311. Taken as a whole, the evidence supports a finding that T&C's proffered explanation for Mickles' discharge is a pretext for discrimination. The district court suggested that the Commission's claim was defeated at the pretext stage by the "'strong inference' against discrimination when the hirer and firer are the same individual." J.A. at 394. The court's reliance on the "same hirer/same firer" rule is flawed for the reasons discussed above. See supra p. 22. That rule, in any event, can be trumped by "countervailing evidence of pretext." Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991). Such evidence exists in spades in this case. CONCLUSION The district court erred in granting summary judgment in T&C's favor. The district court's decision should be reversed and the case remanded.<7> Respectfully Submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 October 23, 2000 (202) 663-4059 CERTIFICATE OF SERVICE I, Robert J. Gregory, hereby certify that, on this 23rd day of October, 2000, two copies of the attached brief were sent by first-class mail, postage prepaid, to the following counsel of record: William P. Farthing, Jr. John B. Anderson PARKER, POE, ADAMS & BERNSTEIN 401 South Tryon Street Suite 3000 Charlotte, NC 28202 1 Two of T&C's managers testified, after-the-fact, that Mickles frequently needed the assistance of managers in selling cars. J.A. at 263-64, 369. That assertion is flatly contradicted by Mickles, who testified that he needed help on only occasion, when he had a very difficult customer and several things went wrong with car. Id. at 162-64, 172-85. Mickles' testimony must be accepted as true for purposes of summary judgment. 2 Although the response is signed by Koenig, Koenig claims that he did not in fact prepare the response or affix his name to it. J.A. at 270. Koenig admits, however, that he was contacted by the T&C official who actually prepared the response, Barry Davis, who read the response over the phone to Koenig to ensure that the response reflected Koenig's reasons for terminating Mickles' employment. Id. at 271-72, 345. Koenig gave his assent to the contents of the response. Id. at 345. 3 The following exchange took place during Koenig's deposition: Q Let's discuss the ADA for a minute. I think you testified already that you and Mr. Davis really didn't talk about the Americans with Disability Act? A I didn't know anything about it. I still don't. I didn't know it existed until I saw that initial complaint. Q In terms of hire and fire, you were the guy that hired the sales force and fired the sales force? A Yes. Q You didn't receive any training on the ADA while you were at Town & Country? A No. Q Did you receive any flyers or procedures regarding the law and what it required? A No. Q Were you ever shown any? A No. Q Ever do any independent reading on the subject? A No. Q Did you ever get any advice on your hiring practices with regard to the ADA and what it required? A No, I didn't know it existed. How long has it existed by the way? * * * * * Q What about other antidiscrimination laws, are you familiar with, for example, Title 7? A What's that? Q I can't answer your question, but I think you just answered mine. Do the initials ADEA mean anything to you in the employment context? A No. J.A. at 313-14. 4 The court also addressed T&C's argument that Mickles did not engage in reasonable efforts to mitigate his damages. The court agreed with T&C that "any 'back pay' award would be de minimis because Mickles clearly failed to mitigate these damages." J.A. at 394. 5 The district court stated that, to establish a prima facie case, the Commission was required to prove that Mickles had a "disability," that he was "otherwise qualified for the job in question," and that "he was discharged because of his disability." J.A. at 382. Although there are cases supporting this formulation of the prima facie case, see, e.g., Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir. 1997), this is less a statement of the prima facie case than a description of the elements of an ADA claim. In any event, in a "typical discharge case" of this nature, Ennis sets forth the proper formulation of the prima facie case. 6 Indeed, there is a complete disconnect between T&C's proffered explanation and the statements of its own decision-maker, Koenig. It is clear that, in one sense, Koenig did hold the view that Mickles was unable to fulfill the duties of a salesman. Specifically, he believed that Mickles did not have the "mobility" required for working "the black top." J.A. at 190-91, 351. That view, however, was plainly rooted in Koenig's perception that Mickles was substantially limited in his ability to walk or "move around." Id. at 277. T&C's defense would be more credible (if not exculpating) if it acknowledged Koenig's statements on this point and argued that Mickles' condition, in fact, prevented him from being an effective salesman. T&C advances no such defense, perhaps because the limitations imposed by Mickles' condition were not, in reality, as severe as Koenig imagined. 7 As noted above, the district court also reached the conclusion in its summary judgment decision that "any 'back pay' award would be de minimis because Mickles clearly failed to mitigate these damages." J.A. at 394. This "ruling" does not provide the basis for granting summary judgment, or partial summary judgment, in favor of T&C. First, there are disputed issues of material fact on the mitigation issue, as the Commission argued in the district court. See id. at 78-81. Second, summary judgment is proper only when there is no disputed issue of material fact on the underlying question of liability. Summary judgment may not be granted on individual items of damages, while the liability issue is still outstanding. See, e.g., Kendall McGaw Laboratories, Inc. v. Community Memorial Hosp., 125 F.R.D. 420, 422 (D.N.J. 1989) (ruling that a "Rule 56 movant may not 'play leapfrog' with his case by seeking a decision whose validity depends on one or more unresolved issues," since to "allow another result would ignore the chronological structure of trial practice"). Any consideration of the Commission's entitlement to back pay, at this stage of the case, is premature.