No. 10-3629 ________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ________________________________________________________________ BRIAN WURZEL, Plaintiff-Appellant, v. WHIRLPOOL CORP., Defendant-Appellee. ________________________________________________________________ On Appeal from the United States District Court for the Northern District of Ohio Hon. James G. Carr, Judge ________________________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF WURZEL AND FOR REVERSAL ________________________________________________________________ P. DAVID LOPEZ U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, NE, Room 5SW24L Acting Associate General Counsel Washington, DC20507 (202) 663-4055 GAIL S. COLEMAN gail.coleman@eeoc.gov Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . .iii Statement of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Statement of the Issue . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . .1 A. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. District Court Decision . . . . . . . . . . . . . . . . . . . . . . . 9 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 The district court erred in holding that no reasonable jury could find that Whirlpool illegally discriminated against Wurzel under the newly amended Americans with Disabilities Act . . . . . . . . . . . . . . . . . .12 A. Wurzel satisfied the requirements for statutory coverage. . . . . . 15 1. Wurzel was actually disabled.. . . . . . . . . . . . . . . . . . 15 2. Whirlpool regarded Wurzel as disabled . . . . . . . . . . . . . . . 17 a. The district court wrongly conflated Wurzel's statutory coverage with Whirlpool's potential defenses to liability . . . . . . . . .18 b. Wurzel offered direct evidence that Whirlpool regarded him as disabled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 B. A reasonable jury could find that Wurzel did not pose a direct threat .20 1. The district court put the burden of proof on the wrong party. . . 21 2. The district court erred by deferring to Whirlpool's own conclusion that Wurzel posed a direct threat . . . . . . . . . . . . . . .25 3. The district court erred by ignoring Wurzel's testimony . . . . . . 27 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . 25, 26 Branham v. Snow, 392 F.3d 896 (7th Cir. 2004). . . . . . . . . . . . 22, 27 Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002). . . . . . . . 21, 23 Doe v. New York Univ., 666 F.2d 761 (2d Cir. 1981). . . . . . . . . . . .20 Echazabal v. Chevron U.S.A., Inc., 336 F.3d 1023 (9th Cir. 2003). . . . .27 EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997). . . . . . . . . . . . 22 EEOC v. Kinney Shoe Corp., 917 F. Supp. 419 (W.D. Va. 1996). . . . . . 19 EEOC v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997). . . . . . . . . 19 EEOC v. Northwest Airlines, Inc., 246 F. Supp. 2d 916 (W.D. Tenn. 2002). . . . . . . . . . . . . . . . . . 22 EEOC v. Overnite Transp. Co., No. 02-cv-591, 2006 WL 2594479 (S.D. Ohio July 5, 2006). . . . . . . . . . . . . . . 21-22 EEOC v. Prevo's Family Market, Inc., 135 F.3d 1089 (6th Cir. 1998). . . 26 EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007). . . . . . 22 Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . 25, 26-27 Hamlin v. Charter Tp. of Flint, 165 F.3d 426 (6th Cir. 1999). . . . 23, 25 Hargrave v. Vermontm, 340 F.3d 27 (2d Cir. 2003). . . . . . . . . . . . 22 Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000). . . . . . 26 Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884 (9th Cir. 2001). . . . .22 Jarvis v. Potter, 500 F.3d 1113 (10th Cir. 2007). . . . . . . . . . . . 22 LaChance v. Duffy's Draft House, Inc., 146 F.3d 832 (11th Cir. 1998). . . . . . . . . . . . . . . . . . . . . 22 McDonnell Douglas v. Green, 411 U.S. 792 (1973). . . . . . . . . . . .9, 18 McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004). . . . . . . . . . . .22 Milholland v. Sumner County Bd. of Educ., 569 F.3d 562 (6th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . 9 Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999). . . . . . 28 Rizzo v. Children's World Learning Ctrs., Inc., 173 F.3d 254 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . .22 Rizzo v. Children's World Learning Ctrs., Inc., 213 F.3d 209 (5th Cir. 2000) (en banc). . . . . . . . . . . . . . . . . 28 School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). . . . . . 19 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . 13, 14 Toyota Motor Mfg. Ky., Inc. v. Williams, 534 U.S. 184 (2002). . . . 13, 14 Statutes Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.(2009). . . . . . . . . . . . . . . . . . . . . 1 § 12101(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 § 12102(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 16 § 12102(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 § 12102(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 § 12103(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 § 12111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25 § 12112. . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18, 21, 23 § 12113. . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 20, 21, 23 § 12201(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Americans with Disabilities Act Amendments Act, Pub. L. 110-325, 122 Stat. 3553 (2008). . . . . . . . . . . . . . . . . . 1 preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 § 2(a) (codified at 42 U.S.C. § 12101 note) (2009)). . . . . . . . . 14 § 2(b) (codified at 42 U.S.C. § 12101 note) (2009)). . . . . 14, 15, 18, 20 § 3(2) (codified at 42 U.S.C. § 12102(2) (2009)). . . . . . . . . . . . 15 § 3(4) (codified at 42 U.S.C. § 12102(4) (2009)). . . . . . . . . . . . 15 Rules and Regulations Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . .1 29 C.F.R. § 1630.2(r). . . . . . . . . . . . . . . . . . . . . . . . 25, 26 29 C.F.R. § 1630.15(b)(2). . . . . . . . . . . . . . . . . . . . . 20, 21 Other Authority Brian S. Pestes, "Disciplining the Americans with Disabilities Act's Direct Threat Defense," 22 Berkeley J. Emp. & Lab. L. 409 (2001). . . 27 Chai R. Feldblum, "Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?" 21 Berkeley J. Emp. & Lab. L. 91 (2000). . . . . . 13 136 Cong. Rec. S9697 (daily ed. July 13, 1990), reprinted in 1990 WL 97306. . . . . . . . . . . . . . . . . . . . . . . .24 H.R. Rep. No. 101-485(II) (1990), reprinted in 1990 U.S.C.C.A.N. 303. . . . . . . . . . . . . . . . . . . . . . . . . . 24 H.R. Rep. No. 101-596 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 565. . . . . . . . . . . . . . . . . . 24 Interpretive Guidance on Title I of the ADA, 29 C.F.R. Pt. 1630, App.. . . . . . . . . . . . . . . . . . . . .23, 25, 26 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. This case is among the first to construe the ADA as recently amended by the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA"), Pub. L. 110-325, 122 Stat. 3553 (2008). The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUE Did the district court err in holding that no reasonable jury could find that Whirlpool illegally discriminated against Wurzel under the newly amended Americans with Disabilities Act? STATEMENT OF THE CASE This is an appeal from an award of summary judgment in favor of Whirlpool. A. Statement of the Facts Brian Wurzel began working for Whirlpool Corporation in 1983. (R.35, Wurzel Dep. at 19-20.) In May 2003, he experienced significant chest pain for the first time. (R.35, Wurzel Dep. at 43.) Following a visit to the emergency room and a catheterization, Wurzel's doctor released him to return to work without restrictions. (R.30-15, Jabaly Release of 6/5/03.) The pains continued to occur unpredictably and Wurzel took leave as necessary. (R.35, Wurzel Dep. at 81.) By 2007, Wurzel's principal assignment was driving a forklift ("tow motor" in Whirlpool's parlance) to deliver items within the plant. This job required him to drive on walkways that were also used by pedestrians. (R.30-11, Schulz Aff. ¶¶2, 5.) Wurzel had a completely safe driving record. (R.36, Wurzel Dep. at 131, 143.) In November 2007, Wurzel was diagnosed with Prinzmetal's angina, a permanent condition that causes coronary artery spasms of varying severity. (R.35, Wurzel Dep. at 28; R.38, Issa Dep. at 9-10, 12, 14-15, 31.) There is no way for an individual with Prinzmetal's angina to predict when a spasm will occur or how severe it will be. (R.35, Wurzel Dep. at 40; R.38, Issa Dep. at 10, 50.) However, Wurzel testified that his spasms always begin with tightness or pain in his chest, and it is not until they progress that he experiences shortness of breath, numbness in his left arm, pain in his neck, and occasional dizziness and/or fatigue. (R.35, Wurzel Dep. at 33-34.) He testified that he knows a spasm may be developing when he starts to feel heartburn, at which point he stops his activities. (Id. at 39-40; R.36, Wurzel Dep. at 129-30, 142-44; R.37, Wurzel Dep. at 257.) If he develops tightness in his chest or shortness of breath, he takes a Nitroglycerin tablet to relieve the symptoms. Often, one tablet is enough to take care of the problem. He sometimes needs to take more than one, and if his spasm continues after three Nitroglycerin tablets, he must go to the emergency room for treatment. (R.35, Wurzel Dep. at 38, 40-41; R.37, Wurzel Dep. at 236.) Wurzel testified that following a spasm, he continues to work only if he feels that he can do so safely. If not, he takes leave and goes home. (R.35, Wurzel Dep. at 99; R.36, Wurzel Dep. at 106, 130, 143-44; R.37, Wurzel Dep. at 257.) After Wurzel had a number of spasms at work, Whirlpool's company doctor (Dr. Marshall) asked him to see his cardiologist (Dr. Issa) to confirm that he was not a safety risk. (R.43, Marshall Dep. at 24; R.43-1, Marshall Dep. Ex. 53, 3/13/08 Clinic Rpt.; R.36, Wurzel Dep. at 105-06.) Wurzel told Dr. Issa that he drove a forklift but was not entirely forthcoming about the extent of his spasms. (R.38, Issa Dep. at 50; R.36, Wurzel Dep. at 107-09, 161.) Based on the information that he had, Dr. Issa released Wurzel to return to work without restrictions. (R.42-1, Dewey Dep. Exs. 41-42, Issa Release of 3/13/08.) Dr. Marshall, who feared that Wurzel might become suddenly incapacitated, allowed Wurzel to return to work but prohibited him from driving any company vehicles. (R.30-14, Marshall Aff. ¶5.) Whirlpool assigned Wurzel to a temporary desk job until he could successfully bid on a permanent position that did not require driving. (R.30-11, Schulz Aff. ¶7; R.36, Wurzel Dep. at 119, 122.) Over the next several months, Wurzel had multiple spasms at work. (R.36, Wurzel Dep. at 145.) Some of these spasms caused him to visit the Employee Health Center and to go home early. (Id. at 146, 153-56, 181.) After a spasm in September 2008 that left Wurzel dizzy and fatigued, Whirlpool told him that he would need medical clearance to return to work. (R.36, Wurzel Dep. at 178, 182- 84.) Because Dr. Issa was on vacation, Wurzel was evaluated by another cardiologist in his practice, Dr. Roush. (R.37-2, Wurzel Dep. Ex. 21, 10/2/08 Clinic Rpt.) After examination, Dr. Roush reported that Wurzel could work without restrictions. (R.42-1, Dewey Dep. Ex. 43, Roush Release of 10/2/08.) Dr. Marshall remained concerned, observing that "to have these episodes . . . occur episodically like this with himself and others in jeopardy in this work environment . . . is intolerable." (R.37-2, Wurzel Dep. Ex. 21, 10/2/08 Clinic Rpt.) He contacted Dr. Issa, who reassured him that Wurzel could work but did not guarantee that Wurzel was not at risk for sudden incapacitation. (R.30-14, Marshall Aff. ¶7.) As Dr. Issa later testified, it is exceedingly rare for an individual with Prinzmetal's angina to become lightheaded, dizzy, or unconscious without any advance warning, and although the medical literature indicated that it was possible, he had never seen this happen in his own practice. (R.38, Issa Dep. at 67, 100.) Another of Wurzel's cardiologists, Dr. Stockton, echoed Dr. Issa's assessment that sudden incapacitation was highly unlikely. He testified that because Wurzel had no experience of syncope (i.e., fainting), "that pretty much allows you to do, from a cardiac standpoint, any job in the world, including flying a plane or driving a bus." (R.39, Stockton Dep. at 38.) Dr. Marshall released Wurzel to return to work but, again, refused to let him drive a forklift. (R.42-1, Dewey Dep. Ex. 35, 10/7/08 Rpt; R.36, Wurzel Dep. at 190.) This time, Dr. Marshall specified that Wurzel could not return to the driving job until he had a six-month spasm-free period. (R.43-1, Marshall Dep. Ex. 55, 10/7/08 Clinic Rpt.) In October 2008, Wurzel successfully bid on a permanent position in the paint department. (R.36, Wurzel Dep. at 128, 191, 193.) His new job required him to work near moving machinery and, for part of the time, to do so while alone on an upper floor of the factory. (R.30-11, Schulz Aff. ¶8.) Wurzel had two spasms at work that month, both of which caused him to leave work early. (R.30-14, Marshall Aff. ¶8.) At this point, Dr. Marshall ordered an independent medical examination. (R.42-1, Dewey Dep. Ex. 36, 10/28/08 Rpt.) The independent exam was carried out in November 2008 by Dr. Biswas, a cardiologist who contracted with an outside company to perform return-to-work assessments. (R.40, Biswas Dep. at 8-9; R.43-1, Marshall Dep. Ex. 46, Biswas Ltr. of 11/13/08.) Dr. Marshall informed Dr. Biswas about Wurzel's condition and symptoms. (R.42-1, Dewey Dep. Ex. 22, Marshall Ltr. of 11/4/08.) After meeting with Wurzel, Dr. Biswas recommended that Whirlpool return him to work with no restrictions. (R.43-1, Marshall Dep. Ex. 46, Biswas Ltr. of 11/13/08.) Dr. Marshall permitted Wurzel to return to his job in the paint department. (R.43, Marshall Dep. at 26; R.43-1, Marshall Dep. Ex. 56, 12/2/08 Clinic Rpt.) Wurzel experienced more spasms at work during early 2009. (R.37, Wurzel Dep. at 224; R.43-1, Marshall Dep. Ex. 47, Marshall Ltr. of 2/19/09.) He consulted Dr. Issa and Dr. Stockton, both of whom told him that he could work without restrictions. (R.43-1, Marshall Dep. Ex. 45, Issa Release of 2/17/09, Stockton Release of 2/25/09.) Dr. Marshall contacted Dr. Issa to express his continuing concern, and Dr. Issa reiterated his position that Wurzel "could return to work without any restrictions despite the fact of these multiple attacks." (R.43- 1, Marshall Dep. Ex. 58, 2/19/09 Clinic Rpt.) Notwithstanding the advice of Wurzel's cardiologists, Dr. Marshall maintained his opinion "that [Wurzel's] condition is not controlled." (Id.) Citing his own familiarity with Whirlpool's environment, Dr. Marshall barred Wurzel from working around machinery. (Id.) This meant that Wurzel could no longer work in the paint department and was forced to take sick leave. (R.30-11, Schulz Aff. ¶12.) Because he disagreed with Dr. Issa, Dr. Marshall wrote to Dr. Biswas. He told Dr. Biswas that Wurzel had experienced more spasms, including one which had been so intense that Wurzel had taken nine Nitroglycerin tablets in response. (R.43-1, Marshall Dep. Ex. 47, Marshall Ltr. of 2/19/09.) In subsequent litigation, Wurzel denied that this was true and said he had never reported using more than three tablets for a single spasm or using nine tablets in a single day. (R.35, Wurzel Dep. at 41; R.37, Wurzel Dep. at 229, 236.) Dr. Marshall emphasized to Dr. Biswas that Wurzel worked near machinery and out of sight of others. He asked Dr. Biswas if this information changed his recommendation that Wurzel be allowed to work without restrictions. (R.43-1, Marshall Dep. Ex. 47, Marshall Ltr. of 2/19/09.) On March 5, 2009, Dr. Biswas responded to Dr. Marshall. Observing that he had only "limited information," Dr. Biswas said that Wurzel's symptoms appeared to pose some risk and recommended that Wurzel return to work only if he could work under "close observation" and away from any "potentially risky area."(R.43-1, Marshall Dep. Ex. 48, Biswas Ltr. of 3/5/09.) He noted that he had not seen Dr. Issa's records and therefore could not comment on Dr. Issa's assessment. (Id.) Dr. Marshall kept Wurzel out on sick leave and sent Dr. Biswas a copy of Dr. Issa's records. (R.43-1, Marshall Dep. Ex. 49, Biswas Ltr. of 5/8/09.) Meanwhile, Wurzel filed the instant lawsuit. (R.1, Complaint.) Dr. Biswas reviewed Dr. Issa's records and in May 2009 told Dr. Marshall that Dr. Issa was not acknowledging the severity of Wurzel's condition. (R.43-1, Marshall Dep. Ex. 49, Biswas Ltr. of 5/8/09.) Referring to Wurzel's alleged use of nine Nitroglycerin tablets for a single spasm, he recommended that Dr. Issa be made aware of the extent of the symptoms that Dr. Marshall had reported to him. (Id.) Dr. Biswas later questioned whether this was ever done. (R.40, Biswas Dep. at 49.) Dr. Marshall wrote to Dr. Biswas one more time, asking him to clarify his earlier statement that Wurzel should only work under "close observation" and away from any "potentially risky area." (R.43-1, Marshall Dep. Ex. 50, Marshall Ltr. of 6/11/09.) Dr. Biswas responded that, among other things, Wurzel should not be allowed to work near moving machinery. (R.43-1, Marshall Dep. Ex. 51, Biswas Ltr. of 6/17/09.) In August 2009, Whirlpool told Wurzel that he could bid on any job that did not involve driving or working near moving machinery. (R.43, Marshall Dep. at 19; R.30-11, Schulz Aff. ¶14.) Otherwise, Whirlpool said, Wurzel would have to remain on sick leave until he could confirm that he had been spasm-free for six months. (R.30-11, Schulz Aff. ¶14.) Because no suitable job was available and because he had already exhausted his paid sick leave, Wurzel was forced to take time off without pay. (Id. ¶15.) He returned to work in March 2010, by which point his spasms were under better control. (R.47-4, 2/25/10 Clinic Rpt.) Dr. Biswas admitted during his deposition that only a treating cardiologist could give a "hard opinion" about Wurzel's condition. (R.40, Biswas Dep. at 41.) "You have to see the patient directly," he said, to really understand his illness. (Id. at 55.) Dr. Biswas conceded that he had examined Wurzel only once, and that the examination had occurred some time ago. (Id. at 41-42, 54-55, 61.) He acknowledged that getting information from Dr. Marshall rather than from Wurzel was potentially unreliable. (Id. at 54-55.) "A face to face interview may have affected my recommendation," he said. (Id. at 55, 62.) B. District Court Decision In April 2010, the district court granted Whirlpool's motion for summary judgment. The court first stated that "analysis of plaintiff's disability claims follows the burden-shifting sequence of McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)." (R.51, Slip Op. at 12.) Next, the court noted the unique procedural posture of this case: Wurzel's removal from his driving position had to be analyzed under the ADA as it existed prior to the 2008 amendments, while his removal from the paint department had to be analyzed under the ADAAA.<1> (Id. at 13.) Stating that Wurzel had disavowed reliance on "actual disability," the court declared that reliance on actual disability would have failed anyway under both versions of the statute because "intermittent impairments, such as those resulting from plaintiff's sporadic angina spasms, are not deemed disabling." (Id. at 13 & n.5.) The court rejected Wurzel's assertion that Whirlpool regarded him as disabled either before or after the effective date of the ADAAA. (Id. at 14-15.) With respect to post-ADAAA "regarded as" coverage, the court said, Wurzel would have to show that when Whirlpool removed him from the paint department, he was "subjected to an action prohibited under [the ADAAA] because of an actual or perceived physical or mental impairment[,] whether or not the impairment limits a major life activity." (Id. (quoting 42 U.S.C. § 12103(A) (2009)).) Stating that "a rational jury could only find that concerns with plaintiff's own safety and that of his co-workers prompted Whirlpool's decisions," the court held that Whirlpool did not take "an action prohibited under the [ADAAA]." (Id.) The court clarified this statement later in the opinion, stating that an employment action is not illegal if "the consequences of plaintiff's condition, not the condition itself, motivated defendant's decisions." (Id. at 18.) In any event, the court said, Wurzel had not shown that he was qualified for the jobs at issue because he had not proved that he was not a direct threat to himself or others. (Id. at 15.) The court said that Dr. Marshall's observations of Wurzel and his knowledge of conditions in the plant were better objective evidence than the evaluations of Wurzel's treating cardiologists. (Id. at 16.) "A court will not second-guess an adverse employment action," the court said, "where that action rests on an employer's assessment of conflicting evidence." (Id. at 19.) SUMMARY OF ARGUMENT The district court should not have granted summary judgment on Wurzel's claim that his suspension from the paint department violated the ADAAA. The court erred in holding that Wurzel was not covered by the statute, and it was equally wrong in holding that he posed a direct threat as a matter of law. If allowed to stand, the district court's crabbed reading of the ADA amendments would eviscerate Congress's express efforts to broaden the coverage provisions of the ADA. With respect to coverage, the district court erred by not recognizing that Wurzel is actually disabled as a matter of law. The court also erred by using Whirlpool's defense on the merits to trump Wurzel's assertion that he was regarded as disabled. By admitting that it suspended Wurzel because it feared his sudden incapacitation - a consequence of his impairment - Whirlpool conceded that it regarded Wurzel as disabled. Given this fact, there is simply no question that Wurzel is covered under the amended ADA. On the merits, the district court erred in several respects. Contrary to the district court's understanding, "direct threat" is an affirmative defense. It was therefore Whirlpool's burden to show that Wurzel posed a "significant risk of substantial harm," not Wurzel's burden to prove otherwise. The court also erred in deferring to Whirlpool's assessment of the medical evidence. Whether an individual is a direct threat must be assessed objectively, and good faith reliance on an objectively unreasonable conclusion is not a defense. Finally, the district court erred by not considering Wurzel's testimony about how his spasms affect him and how he responds to them in the workplace. That testimony, together with the medical evidence, could support a jury finding that Wurzel did not pose a direct threat. For all of these reasons, the district court erred in granting summary judgment. ARGUMENT The district court erred in holding that no reasonable jury could find that Whirlpool illegally discriminated against Wurzel under the newly amended Americans with Disabilities Act. The district court's opinion reflects a profound misunderstanding of the ADA. As originally enacted twenty years ago, the ADA was intended "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Among other things, the statute prohibited employers from discriminating against a "qualified individual with a disability" because of that individual's disability. Id. § 12112(a). The term "disability" was defined to mean: "[1] a physical or mental impairment that substantially limits one or more of the major life activities of such individual, [2] a record of such an impairment, or [3] being regarded as having such an impairment." Id. § 12102(2). Congress also enumerated several defenses to liability, including an individual's failure to satisfy a qualification standard of not posing a "direct threat to the health or safety of others in the workplace" that could not be eliminated by a reasonable accommodation. Id. § 12113(a)-(b). Over the next two decades, as plaintiffs filed lawsuits and courts interpreted the statutory language, it became harder and harder for plaintiffs to show that they were among the group of people protected by the ADA. Courts imposed stringent requirements for individuals to show that they were "substantially limited" in a "major life activity." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196- 98 (2002). Even when an individual's impairment was admittedly the basis for an employment decision, courts required plaintiffs who sought coverage based on the "regarded as" prong of the disability definition to prove the employer's perception of their limitations. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-91 (1999). Increasingly, plaintiffs lost lawsuits on the ground that the statute did not cover them, meaning that courts often did not reach the question of whether an employer's conduct was discriminatory. See Chai R. Feldblum, "Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?" 21 Berkeley J. Emp. & Lab. L. 91, 140 (2000) (criticizing "a reading of the ADA that has radically reduced the number of people who can claim coverage under the law"). With the ADAAA of 2008, Congress asserted its intention "to restore the intent and protections of the Americans with Disabilities Act of 1990." Pub. L. No. 110-325, preamble, 122 Stat. 3553 (2008). Congress explained that it had "expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, [but] that expectation has not been fulfilled." Id. § 2(a)(3) (codified at 42 U.S.C. § 12101 note). Criticizing the Supreme Court for "eliminating protection for many individuals whom Congress intended to protect," id. § 2(a)(4), Congress expressly repudiated the holdings of Sutton and Toyota Motor Manufacturing. Id. §§ 2(a)(4)-(7). Congress declared that a purpose of the ADAAA was to "reinstat[e] a broad scope of protection to be available under the ADA." Id. § 2(b)(1). Explaining that previous judicial decisions had made it too difficult for individuals to prove coverage, id. § 2(b)(4)-(5), Congress stated that "it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." Id. § 2(b)(5). With respect to the first prong of the disability definition (actual disability), Congress specifically added "the operation of a major bodily function" to the statute's non-exhaustive list of "major life activities," id. § 3(2)(B) (codified at 42 U.S.C. § 12102(2)(B)), stated that impairments are to be evaluated without regard to mitigating measures, id. §3(4)(E)(i), and stated that an episodic impairment is a disability if it would substantially limit a major life activity when active, id. § 3(4)(C). Congress also singled out the third prong of the definition (regarded as) as demanding a "broad view." Id. § 2(b)(3) (codified at 42 U.S.C. § 12101 note). The district court in the instant case did not acknowledge that the ADAAA envisions "broad coverage" that would allow courts to reach beyond coverage to the merits of employment decisions. The court erroneously held that Wurzel was not actually disabled under the ADAAA, ignoring relevant statutory language to the contrary. The court also over-complicated the question of whether Whirlpool regarded Wurzel as disabled, wrongly infusing potential defenses into its analysis of statutory coverage. For the reasons explained below, the district court should have sent this case to a jury. A. Wurzel satisfied the requirements for statutory coverage. 1. Wurzel was actually disabled. Whether or not the district court is correct that Wurzel abandoned reliance on actual disability (R.51, Slip Op. at 13 n.5), the court is flatly wrong in holding that Wurzel is not disabled under the first prong. Contrary to the district court's reasoning that "an impairment that only moderately or intermittently prevents an individual from performing major life activities is not a substantial limitation under the ADA" (id.), the ADAAA expressly provides that "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." 42 U.S.C. § 12102(4)(C) (2009). Whether a spasm would substantially limit one of Wurzel's major life activities would have to be considered "without regard to the ameliorative effects of mitigating measures such as . . . medication." Id. § 12102(4)(E)(i)(I). In other words, the relevant information is what Wurzel's condition would be during his episodic flare-ups if he did not take Nitroglycerin at the onset of each spasm. The record indicates that spasms such as Wurzel's block part or all of the blood flow to the heart and body, causing symptoms that can be identical to a heart attack and can even result in death. (R.38, Issa Dep. at 11, 16; R.40, Biswas Dep. at 15-16.) Because Wurzel's symptoms block his blood flow (R.38, Issa Dep. at 19, 37), the ADAAA requires a finding that Wurzel is substantially limited in the major life activity of operating his circulatory system. See 42 U.S.C. § 12102(2)(B) (2009) (major life activities include the operation of a major bodily function, specifically including circulation). There is no question of fact about whether Wurzel is actually disabled under the ADAAA. Although it may make no difference in this case whether Wurzel is covered under the ADA because he is "actually disabled" or because he is "regarded as" disabled, the distinction is critical for a plaintiff who seeks reasonable accommodation. The ADA as amended specifically provides that an individual who is actually disabled is entitled to a reasonable accommodation but one who is only "regarded as" disabled is not. See 42 U.S.C. § 12201(h) (2009). Given the significance of which prong is used to establish statutory coverage and the ease of determining actual disability under the amended statute, courts should routinely consider whether a plaintiff is disabled as a matter of law. 2. Whirlpool regarded Wurzel as disabled. Pursuant to the ADAAA, an employer is now deemed to regard an employee as disabled whenever it takes a prohibited employment action because of an employee's physical or mental impairment, so long as the impairment is not transitory and minor. 42 U.S.C. § 12102(3)(A)-(B) (2009). The district court cited this statutory provision but held that Whirlpool had not taken a prohibited action because acting out of safety concerns is not prohibited. (R.51, Slip Op. at 15.) The court's analysis improperly entangles the coverage inquiry and potential defenses to claims of disability discrimination. a. The district court wrongly conflated Wurzel's statutory coverage with Whirlpool's potential defenses to liability. The district court wrongly assumed that an employer cannot regard an employee as disabled if the employer has a nondiscriminatory explanation for the challenged action. This approach defies Congress's instruction that "the question of whether an individual's impairment is a disability should not demand extensive analysis." Pub. L. No. 110-325, § 2(b)(5). Properly understood, the statute requires a court first to determine whether an employer acted because of an impairment that is not transitory and minor (or, as discussed infra, because of symptoms thereof). If the answer is yes, the employer is deemed to have regarded the employee as disabled. If the employee is otherwise qualified for the job, 42 U.S.C. § 12112(a), the court can move quickly to the merits, determining whether the employer has a defense that renders its disability-based action nondiscriminatory. The fact that an employer may have a defense to liability does not mean that it did not regard the employee as disabled. b. Wurzel offered direct evidence that Whirlpool regarded him as disabled. The district court erred in stating that Wurzel's discrimination claims must be analyzed pursuant to the inferential, burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). (R.51, Slip Op. at 12.) The McDonnell Douglas evidentiary framework is applied in cases where there is only circumstantial or indirect evidence, but in this case Wurzel does not need to rely on indirect evidence to prove his post-amendment claim. Whirlpool concedes that it removed Wurzel from his job because it was afraid that his spasms would cause an accident. (R.30-11, Schulz Aff.¶ 14.) This concern about the symptoms of Wurzel's impairment is inextricably connected to the impairment itself. The district court wrongly concluded that the ADA does not bar discrimination based on the consequences of an impairment. (R.51, Slip Op. at 18.) The court relied for this proposition on a district court case, EEOC v. Kinney Shoe Corp., 917 F. Supp. 419, 431-32 (W.D. Va. 1996), which held the same thing. Critically, however, the Fourth Circuit expressly rejected this analysis when the case went up on appeal. EEOC v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997). As the Fourth Circuit explained, "Whether Kinney fired Martinson because he suffered from epilepsy or because of the 'specific attributes' of his disease, i.e., his seizures, is immaterial - both are disabilities and an employer may not use either to justify discharging an employee so long as that employee is qualified for the job." Id. In enacting the ADAAA, Congress intended that discrimination based on the consequences of a disability would be illegal. For this reason, Congress expressly reinstated the reasoning of School Board of Nassau County v. Arline, 480 U.S. 273, 285-86 (1987), in which the Supreme Court held that dismissal because of contagiousness is the same as dismissal because of tuberculosis. Pub. L. No. 110- 325, § 2(b)(3); see also Doe v. New York Univ., 666 F.2d 761, 775 (2d Cir. 1981) ("NYU's refusal to readmit [plaintiff with psychiatric illness] on the ground that she poses an unacceptable risk to faculty, students, and patients makes clear that she is "regarded as having . . . an impairment") (cited with approval in Arline, 480 U.S. at 285 n.14). By admitting that it removed Wurzel from his paint department job because it feared that he might suddenly become incapacitated, Whirlpool took action based on an impairment that is not temporary and minor. For purposes of "regarded as" coverage, Wurzel needs nothing more. B. A reasonable jury could find that Wurzel did not pose a direct threat. Despite the unequivocal evidence that Wurzel satisfied the conditions for statutory coverage and was suspended because of his disability, Whirlpool would not be liable for discrimination if keeping him in his paint department job would have posed a direct threat to his own or other employees' health or safety. 42 U.S.C. § 12113(b); 29 C.F.R. § 1630.15(b)(2). For the reasons described below, a reasonable jury could find that Wurzel did not pose a direct threat. Such a finding would eliminate Whirlpool's only defense to liability. 1. The district court put the burden of proof on the wrong party. The district court should not have required Wurzel to prove as an element of being qualified that he was not a direct threat. (R.51, Slip Op. at 15.) The ADA, as amended, prohibits an employer from "discriminat[ing] against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a) (2009). A "qualified individual" is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8). Whirlpool has not argued that Wurzel is unqualified except for its concerns with his ability to do the job safely. In addition to the general definition of a qualified individual, the ADA provides that an employer may require as a "qualification standard[]" that an individual not "pose a direct threat to the health or safety of other individuals in the workplace." Id. § 12113(b). By regulation, the EEOC has construed this provision to allow employers to require that individuals also not pose a threat to their own health or safety. 29 C.F.R. § 1630.15(b)(2); see Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002) (upholding this regulation's validity). This Court has not yet ruled on which party has the burden of proving "direct threat,"<2> and the federal courts of appeals are divided on this issue. Compare EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 571-72 (8th Cir. 2007) (employer has burden of proving direct threat); Branham v. Snow, 392 F.3d 896, 906-07 (7th Cir. 2004) (same); Hargrave v. Vermont, 340 F.3d 27, 35 (2d Cir. 2003) (same); Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 893 (9th Cir. 2001) (same) with LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 836 (11th Cir. 1998) (plaintiff has burden of proving absence of direct threat). See also Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007) (as long as essential job functions do not necessarily implicate the safety of others, burden of proving direct threat is on employer); McKenzie v. Benton, 388 F.3d 1342, 1353-56 (10th Cir. 2004) (because job of police officer is inherently dangerous, burden falls on plaintiff to show absence of direct threat); Rizzo v. Children's World Learning Ctrs., Inc., 173 F.3d 254, 259-60 (5th Cir. 1999) (normally, plaintiff must prove absence of direct threat, but burden falls on defendant if "safety requirements imposed tend to screen out the disabled"), aff'd en banc, 213 F.3d 209 (5th Cir. 2000); EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997) (where "essential job functions necessarily implicate the safety of others," plaintiff has burden of proving absence of direct threat; acknowledging possibility that where safety "is not tied to the issue of essential job functions but is purely a matter of defense," defendant might have burden of proving existence of direct threat). This Court should adopt the EEOC's consistent and long-standing position that the employer bears the burden of proving "direct threat." 29 C.F.R. Pt. 1630, App. § 1630.15(b). Placement of the "direct threat" provision within the ADA, the legislative history, and the overall purpose of the statute all confirm that where, as here, an employer seeks to use the "direct threat" defense to justify an employment decision based on disability, the employer must prove that the individual would, in fact, pose a direct threat. Statutory language indicates that employers carry the burden of proof. The ADA first defines disability discrimination, 42 U.S.C. § 12112 (2009), and then sets out a separate section for "Defenses." Id. § 12113. The first specified defense is "business necessity," which is commonly understood as being the employer's burden of proof. Hamlin v. Charter Tp. of Flint, 165 F.3d 426, 429-30 (6th Cir. 1999). The next specified defense is "direct threat." Id. § 12113(a)-(b). The statute gives no indication that the burden of proving "direct threat" falls to a different party than the burden of proving "business necessity." Indeed, in an opinion mentioning both "direct threat" and "business necessity," the Supreme Court has referred to each as an "affirmative defense." Chevron U.S.A., Inc. v. Echazabal, 536 U.S. at 78, 81. The legislative history confirms that the Supreme Court's understanding is correct. The House Committee on Education and Labor stated that "an employer need not hire or retrain an employee who it shows . . . poses a direct threat." H.R. Rep. No. 101-485(II) at 126 (1990) (emphasis added), reprinted in 1990 U.S.C.C.A.N. 303, 433. The managers of the House/Senate conference committee expressly stated that "the conferees intend . . . that the burden would be on the employer." H.R. Rep. No. 101-596 at 60 (1990) (Conf. Rep.) (emphasis added), reprinted in 1990 U.S.C.C.A.N. 565, 569. Additionally, Senator Kennedy explained moments after passage of the Conference Report that "a specific decision was made to state clearly in the statute that, as a defense, an employer could prove that an applicant or employee posed a significant risk to the health or safety of others." 136 Cong. Rec. S9697 (daily ed. July 13, 1990) (emphasis added), reprinted in 1990 WL 97306, at *S9697. Placing the burden of proving this defense on the employer is also consistent with the statutory purpose. Congress harshly criticized the "false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, irrational fears, and pernicious mythologies" leading to discrimination against qualified individuals with disabilities. H.R. Rep. No. 101-485(II) at 30 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 311. In light of Congress's disdain for "irrational fears" and other improper motivation, it is appropriate that employers who rely on the "direct threat" defense must prove that the risks they seek to avoid are both real and significant. 2. The district court erred by deferring to Whirlpool's own conclusion that Wurzel posed a direct threat. Contrary to the district court's understanding (R.51, Slip Op at 19), an employer is entitled to a "direct threat" defense only if the individual in question actually poses "a significant risk of substantial harm." 29 C.F.R. § 1630.2(r). An employer misjudges the objective evidence at its own peril. See Bragdon v. Abbott, 524 U.S. 624, 649-50 (1998) (employer's "belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability . . . courts should assess the objective reasonableness of the [employer's] views"). The ADA defines a "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). The EEOC has clarified that an employer "is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability, of substantial harm; a speculative or remote risk is insufficient." Interpretive Guidance on Title I of the ADA, 29 C.F.R. Pt. 1630, App. § 1630.2(r); see also Bragdon, 524 U.S. at 649 ("Because few, if any, activities in life are risk free, Arline and the ADA do not ask whether a risk exists, but whether it is significant."); Hamlin, 165 F.3d at 432 (direct threat requires "high probability of potential harm"); Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398, 403 (6th Cir. 1998) (court "must not consider the possibility of HIV transmission, but rather focus on the probability of transmission") (emphasis added). In determining whether an individual poses a significant risk, an employer must rely on "an individualized assessment of the individual's present ability to safely perform the essential functions of the job." 29 C.F.R. Pt. 1630, App. § 1630.2(r); see Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000) (a determination "which focuses on the medical condition's actual effect on the specific plaintiff [ ] lies at the heart of the ADA"); EEOC v. Prevo's Family Market, Inc., 135 F.3d 1089, 1097 (6th Cir. 1998) ("the principal purpose of the regulation is to prohibit employers from making adverse employment decisions based on stereotypes and generalizations associated with the individual's disability rather than on the individual's actual characteristics"). The relevant considerations are: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r) The district court all but ignored factors other than the severity of harm, including the question of how likely it was that Wurzel would become suddenly incapacitated. "The question under the statute," the Supreme Court has explained, "is one of statistical likelihood." Bragdon, 524 U.S. at 652. The ADA does not permit employers to demand "the elimination of all risk." Estate of Mauro, 137 F.3d at 402. This is so even when the risk at issue is that of severe injury or death. As one commentator has explained, "even a very large harm poses an insignificant risk when the probability of its occurrence is sufficiently low." Brian S. Pestes, "Disciplining the Americans with Disabilities Act's Direct Threat Defense," 22 Berkeley J. Emp. & Lab. L. 409, 426 (2001). In finding that Wurzel faced a significant risk of experiencing sudden incapacitation while operating or working near machinery, the district court wrongly relied on information about individuals with Prinzmetal's angina in general rather than on information about Wurzel in particular. A reasonable jury could find the district court's conclusion to be at odds with the objective evidence. 3. The district court erred by ignoring Wurzel's testimony. Inexplicably, the district court completely ignored all of Wurzel's testimony. (R.51, Slip Op. at 19 ("the only evidence plaintiff offers . . . is the opinions of Drs. Issa and Stockton").) Wurzel testified that he always knows when a spasm is about to begin. (R.35, Wurzel Dep. at 33-34, 39-40; R.36, Wurzel Dep. at 129-30, 142- 44; R.37, Wurzel Dep. at 257.) "Once I start getting tightness in my chest and shortness of breath," he said, "that's when I reach for my Nitroglycerin." (R.35, Wurzel Dep. at 40.) Despite having had numerous spasms in the workplace, Wurzel emphasized, he has never had an accident. (R.36, Wurzel Dep. at 131, 153.) See Branham, 392 F.3d at 907-08 (reasonable jury may conclude from fact that plaintiff has never become incapacitated that he can control his diabetes well enough not to pose a direct threat); Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1032 (9th Cir. 2003) (decision after remand from the Supreme Court) ("a reasonable jury could find that this injury-free work history provided evidence that [plaintiff] would not pose a direct threat"); Rizzo v. Children's World Learning Ctrs., Inc., 213 F.3d 209, 213 (5th Cir. 2000) (en banc) (evidence supported jury's finding that bus driver with hearing impairment did not pose a direct threat where plaintiff "produced evidence of her safe driving history and unblemished history of supervising the children without incident"). Both of Wurzel's treating cardiologists testified that he was highly unlikely to become incapacitated without warning. (R.38, Issa Dep. at 67, 100; R.39, Stockton Dep. at 38.) While Dr. Issa admitted that sudden incapacitation was within the realm of possibility (R.38, Issa Dep. at 67), "such testimony does not establish significant risk as a matter of law. At most, it raises a genuine issue of material fact." Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1248 (9th Cir. 1999) (no direct threat based on doctor's statement that it was "possible" but "very unlikely" that plaintiff with fainting disorder would pose a risk to others if she carried something heavy over her head, fainted, and dropped the item onto someone else). The district court discounted Dr. Issa's and Dr. Stockton's opinions because Wurzel admitted that he had not told them about the frequency of his spasms or the extent of his symptoms. (R.51, Slip Op. at 12.) Arguably, however, because Wurzel has always been able to stop his activities before his spasms became severe, these omissions had limited relevance to the likelihood of his becoming suddenly incapacitated. A reasonable jury might find that Wurzel's lack of candor with his doctors makes him less credible as a witness. On the other hand, a jury could also question why Dr. Marshall seemingly shared different information with Dr. Issa and Dr. Biswas. A jury could question whether, through his repeated letters to Dr. Biswas, Dr. Marshall was simply shopping for a second opinion to back up his own unsupported view that Wurzel's symptoms were "not controlled." (R.43-1, Marshall Dep. Ex. 58, 2/9/09 Clinic Rpt.) Ultimately, of course, the real question is not whether Wurzel should have been more forthcoming or whether Dr. Marshall should have been more proactive in researching Wurzel's condition. The real question is whether objective evidence showed that Wurzel posed a significant risk of harm. Because a reasonable jury could find that it did not, this Court should remand for further proceedings. CONCLUSION The district court's resolution of this case defies Congress's instruction that proof of disability should be straightforward. It also wrongly places the burden of proof on a plaintiff to show that his disability will never cause a safety problem, instead of placing the burden where it belongs, on the defendant, to show that the plaintiff's disability poses a "significant risk of substantial harm." For the reasons cited above, the EEOC respectfully requests that this Court reverse the award of summary judgment on Wurzel's ADAAA claim and remand for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel /s/ Gail S. Coleman ____________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure and Rule 32(a) of the Sixth Circuit Rules, I certify that this brief was prepared with Microsoft Office Word 2010 and Microsoft Office Word 2003, and that it uses the proportionally spaced Times New Roman font, size 14 point. I further certify that this brief contains 6,902 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Office Word 2003 word-count function. /s/ Gail S. Coleman ____________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed one original signed copy of the foregoing amicus brief with the Court by first-class mail, postage pre-paid, on this 27th day of July, 2010. I also certify that I submitted the amicus brief electronically in PDF format through the Electronic Case File (ECF) system. I further certify that I served two paper copies of the foregoing amicus brief this 27th day of July, 2010, by first-class mail, postage pre-paid, to the following counsel of record: Francis J. Landry Kent D. Riesen Wasserman, Bryan, Landry Anspach Meeks Ellenberger & Honold, LLP 300 Madison Ave., Suite 1600 300 Inns of Court Bldg. Toledo, OH 43604 405 N. Huron St. Toledo, OH 43604 Adam C. Witt Raven Alexandria Winters Littler Mendelson 200 N. LaSalle St., Suite 2900 Chicago, IL 60601 /s/ Gail S. Coleman ____________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov *********************************************************************** <> <1> This Court has held that the ADAAA, which became effective on January 1, 2009, is not retroactive. Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 565 (6th Cir. 2009). <2> District courts in the Sixth Circuit have treated "direct threat" as an affirmative defense in EEOC cases. See, e.g., EEOC v. Overnite Transp. Co., No. 02-cv-591, 2006 WL 2594479, at *10 (S.D. Ohio July 5, 2006); EEOC v. Northwest Airlines, Inc., 246 F. Supp. 2d 916, 926 (W.D. Tenn. 2002).