Equal Employment Opportunity Commission v. J.H. Routh Packing Corportation 99-4482 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 99-4482 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. J.H. ROUTH PACKING CORPORATION, Defendant-Appellee. On Appeal from the United States District Court for the Northern District of Ohio PROOF COPY OF THE REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 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 In its opening brief, the Commission argued that the district court erred in granting judgment on the pleadings in favor of the defendant, J.H. Routh Packing Corporation ("Routh"). The Commission urged that the allegations of its complaint were sufficient to satisfy the liberal rules for notice pleading. The Commission asserted that the district court erred in requiring the Commission to delineate, in its complaint, the specific major life activities on which it based its claim of a covered disability. The Commission contended that the district court strayed from its proper role in ruling on a motion for judgment on the pleadings, essentially converting Routh's motion into a disposition of the Commission's claim on the merits. In its brief, Routh offers a passing defense of the district court's "major life activity" rationale. Routh's principal argument, however, is that the Commission's complaint contains a "self-defeating allegation" on the disability issue. Routh Br. at 10. In fact, there is no self-defeating allegation in the Commission's complaint and no other basis for dismissing the Commission's case at the pleading stage. For the reasons discussed below (and in the Commission's opening brief), this Court should reverse the district court's grant of judgment on the pleadings. ARGUMENT 1. As the Commission explained in its opening brief, "the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47 (1957). A complaint is sufficient, "[u]nder the liberal federal system of notice pleading," if it gives the defendant "'fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 697 (6th Cir. 1996). In this case, the Commission alleged that the charging party, Jason Polak, "was a qualified individual with a disability (epilepsy or seizure disorder) who, with or without an accommodation, could perform the essential functions of the job of meat cutter/trimmer for Defendant." (R.1 Complaint, pg. 3, Apx. pg. ). The Commission also alleged that Routh "maintained a policy or practice of refusing to employ any individual with a record of seizure disorders unless that individual can demonstrate that he or she has been seizure free for a specific period of time, e.g., six months." (R.1 Complaint, pg. 5, Apx. pg. ). These allegations are sufficient to provide Routh with "fair notice" of the Commission's claim of disability. Routh has no quarrel with the view that "the federal rules only require a short and plain statement of the claim showing that the pleader is entitled to relief." Routh Br. at 18. Routh, in fact, concedes that "[j]udgment on the Pleadings is not often granted in the Federal judicial system." Id. Routh contends, however, that the Commission's complaint contains a "self-defeating allegation." Id. at 10. Specifically, Routh cites the statement in the complaint that Mr. Polak's epilepsy is "'controlled with medication.'"<1> Id. at 9. In Routh's view, because the complaint contains "the self-defeating admission that [Mr. Polak's] impairment is 'controlled with medication,'" the complaint, "as a matter of law," must be dismissed. Id. at 6. Routh's argument is foreclosed by the very Supreme Court decision on which its motion rests, Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999). In Sutton, the Supreme Court held that, "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures -- both positive and negative -- must be taken into account when judging whether that person is 'substantially limited' in a major life activity and thus 'disabled' under the [ADA]." Id. at 2146. The Court made clear that its ruling did not preclude coverage of individuals, such as those with epilepsy, who are taking medication to ameliorate the effects of a physical or mental impairment. The Court explained that individuals who "take medicine for epilepsy" may still have an actual disability under the ADA if they "take medicine to lessen the symptoms of an impairment so that they can function but nevertheless remain substantially limited." Id. at 2149. The Court further clarified that individuals with epilepsy may be covered under the ADA, even if the antiepileptic drugs fully ameliorate the effects of the impairment, if those drugs have "negative side effects" that are substantially limiting in their own right. Id. at 2147 (citing an article "cataloging serious negative side effects of new antiepileptic drugs"). Under Sutton, "[i]t is entirely possible for an individual taking antiepileptic drugs to be substantially limited in one or more major life activities due either to the 'negative effects' of the medication or the failure of the medication to fully ameliorate the effects of the condition." EEOC Br. at 20. The Commission's complaint is fully compatible with a finding of disability under the Sutton standard. First, the complaint does not foreclose the possibility that Mr. Polak's epilepsy is substantially limiting, notwithstanding the positive effects of his antiepileptic medication. As the Supreme Court explained in Sutton, epilepsy can be controlled with medication in the sense that the medication "lessen[s] the symptoms of [the] impairment so that [the affected individual] can function." 119 S. Ct. at 2149. The individual, nonetheless, may "remain substantially limited." Id. The mere fact that Polak takes medicine to "control" the effects of his epilepsy does not mean, as a matter of law, that he is not disabled within the meaning of the ADA. It is true, as Routh points out, that the Commission's complaint contains additional detail on Mr. Polak's condition. Thus, the complaint states that Polak experiences "petit mal seizures approximately six times each year with each seizure lasting ten to thirty seconds." (R.1 Complaint, pg. 4, Apx. pg. ). The complaint notes that Mr. Polak is "often able to fight off a seizure" and that he "is conscious and fully aware of what is happening to him," although "his ability to talk and to chew are affected." (R.1 Complaint, pg. 4, Apx. pg. ). These assertions, however, do not entitle Routh to judgment as a matter of law on the disability issue. In ruling on a motion for judgment on the pleadings, a court must construe the complaint "in the light most favorable to the plaintiff." Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). The Commission's complaint, while arguably suggestive of an impairment whose effects are ameliorated, to a degree, by medication, does not contain any "admission" that Polak is "not substantially limited in a major life activity." Routh Br. at 6, 10 (emphasis in original). Certainly, the complaint is nothing like the complaint in Sutton, which conceded that the plaintiffs' impairment was fully correctable. See 119 S. Ct. at 2149. The Commission's complaint makes clear that Polak's impairment continues to impose a limitation of some kind, even given the beneficial effects of medication. The precise scope of that limitation is not "motion to dismiss territory." Homeyer v. Stanley Tulchin Assocs. Inc., 91 F.3d 959, 961-62 (7th Cir. 1996).<2> In any event, even assuming that the complaint could be read as foreclosing an argument that Mr. Polak's epilepsy is itself substantially limiting, the complaint in no way forecloses the argument that Polak is substantially limited in one or more major life activities due to the negative side effects of his antiepileptic medication. Sutton instructs that the "negative side effects" of medication taken to ameliorate an impairment are properly considered in "determining whether an individual is disabled." 119 S. Ct. at 2147. Sutton acknowledges that some "new antiepileptic drugs" have "serious negative side effects." Id. As the Commission explained in the district court, "antiepileptic drugs can have serious negative effects which could well limit one or more major life activities," including the major life activities of "caring for one's self, walking, speaking, thinking, learning, intellectual functioning, sleeping, driving, control of one's bodily functions, and working." (R.15 Brief in opposition, pgs. 8-9, Apx. pgs. ). Routh argues that the Commission may not rely upon the "remedial side effects" theory, advanced in its brief in opposition to Routh's motion for judgment on the pleadings, because it did not specifically plead that theory of coverage in its complaint. Routh Br. at 24. This is a novel view of notice pleading. The Commission is required to provide "'fair notice of what the [Commission's] claim is.'" Vector Research, Inc., 76 F.3d at 697. It is not required to lay out the details of the evidentiary theory by which it seeks to prove its claim. The Commission's complaint put Routh on fair notice of the nature of its claim. In its brief in opposition, the Commission pointed to the evidentiary possibilities raised by the allegations of its complaint. The Commission did all that it was required to do to withstand judgment on the pleadings. Routh, moreover, is only half right in arguing that "the scope of review when deciding a motion for judgment on the pleadings is limited to the facts alleged in the complaint." Routh Br. at 24. In ruling on a motion for judgment on the pleadings, a court's inquiry is generally limited to matters contained within the pleadings. See Fed.R.Civ.P. 12(c). A plaintiff, however, is entitled to explain the evidentiary possibilities raised by the factual allegations in its complaint in responding to the defendant's motion. Indeed, the very purpose of judgment on the pleadings is to test whether, accepting the allegations of the complaint as true, the plaintiff "undoubtedly can prove no set of facts in support of the claims that would entitle relief." Grindstaff, 133 F.3d at 421. The Commission did not make additional factual allegations in its response to Routh's motion. The Commission merely explained why, under the allegations of its existing complaint, it was not "undoubtedly" clear that the Commission could prove "no set of facts" in support of its claim. Routh accuses the Commission of attempting "to group the Complainant in with a large group of epileptics whose epilepsy is controlled and who may or may not have side effects which result from taking the medication." Routh Br. at 25. According to Routh, "[i]t is impossible for the EEOC to maintain that position and view each person claiming to be disabled from epilepsy as an individual as required by Sutton." Id. Routh is confused. The Commission acknowledges that, to establish an actual disability, an ADA plaintiff is required to put on individualized proof with respect to the substantially limiting effects of an impairment.<3> That evidentiary burden, however, arises at trial or in response to a properly filed motion for summary judgment. It does not arise at the pleading stage. The proof of disability status must be individualized; the precise composition of that proof need not be itemized in the complaint. It is important to remember that the Commission filed its complaint in this case prior to the Supreme Court's decision in Sutton. The Commission had no reason, at that time, to make specific factual allegations on the issue of "remedial side effects." Plainly, Sutton altered the legal landscape on disability status, making clear that the effects of corrective measures, "both positive and negative," must be taken into account in assessing disability status. 119 S. Ct. at 2146. So long as the complaint in this case does not explicitly foreclose coverage under the newly-minted Sutton standard -- and it does not -- the Commission is entitled to go forward in the case and seek to establish actual disability under the evidentiary theories left open in Sutton. 2. Even assuming that the Commission cannot go forward on a claim of actual disability, the Commission also has arguments under the "regarded as" and "record of" prongs of the disability definition. See 42 U.S.C. § 12102(2). With respect to the "regarded as" prong, the complaint alleges that, in terminating Polak's employment, Routh "acted on the basis of stereotypes associated with epilepsy." (R.1 Complaint, pg. 4, Apx. pg. ). The complaint states that, based on those stereotypes, Routh terminated Polak without making an "individualized assessment of Mr. Polak's ability safely to perform the essential functions of the job of meat cutter/trimmer with or without a reasonable accommodation." (R.1 Complaint, pgs. 4-5, Apx. pgs. ). Combined with the general allegation that Polak is a "qualified individual with a disability," these allegations are sufficient to state a viable "regarded as" claim. Routh argues that the allegations of the complaint are deficient because the complaint "alleges only that J.H. Routh disqualified the Complainant from one particular job in the meat packing industry" and Routh "did not, as the Complaint confirms, perceive Complainant as being disqualified for a range of jobs." Routh Br. at 11-12. This is not correct. The complaint does focus on Routh's decision to terminate Polak in the position of meat cutter/trimmer. The complaint, however, does not concede that this decision stemmed from the narrow perception that individuals with epilepsy are disqualified from working in that particular position. To the contrary, the complaint alleges that Routh's decision was based on general stereotypes associated with epilepsy. If an employer, in disqualifying an individual from a particular job, acts on the basis of broad perceptions concerning the employability of individuals with epilepsy (e.g., individuals with epilepsy are unsuited for a broad range of jobs), the employer's perceptions can support a "regarded as" claim. See Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. App., at §1630.2(l) (1999) ("[I]f an individual can show that an employer or other covered entity made an employment decision because of a perception of disability based on 'myth, fear or stereotype,' the individual will satisfy the 'regarded as' part of the definition of disability."). In its answer, Routh averred that its seizure-free policy was based "upon medical advice provided to defendant by three or more qualified physicians, including Board certified neurologists." (R.4 Answer, pgs. 3-4, Apx. pgs. ). As it turns out, that medical advice reveals a disturbing view of the employability of individuals with epilepsy, disqualifying such individuals from any job "which would expose [them] to sharp implements or knives; to mechanical equipment, i.e. machinery, tow motors, cars, trucks or any form of motor vehicle; [such an individual] may not be on an elevated surface of any type, i.e. cat-ways, walkways, ladders; cannot be near heating or cooling devices of any type.'" (R.15 Brief in opposition, pg. 14, Apx. pg. ). Routh's admission that its policy was based on medical advice that would disqualify individuals with epilepsy or seizure disorder from a broad range of jobs provides strong support for the Commission's "regarded as" claim.<4> It cannot be said, at this preliminary stage, that the Commission "undoubtedly" can prove no set of facts to support a "regarded as" claim. The same is true of the Commission's "record of" impairment claim, rooted in its allegation that Routh disqualified Polak because of his "history of epilepsy" pursuant to its policy of "refusing to employ any individual with a record of seizure disorders unless that individual can demonstrate that he or she has been seizure free for a specific period of time, e.g., six months." (R.1 Complaint, pgs. 3-5, Apx. pgs. ). On this point, Routh argues that there is no "allegation in the Complaint that J.H. Routh relied on a history of seizure disorders which rise to the level of disabilities in making its employment decision." Routh Br. at 17-18. This is untrue. The complaint cites a policy of screening out individuals with a "record of seizure disorders." It is entirely possible that individuals screened out as a result of this policy will be individuals with a record of an impairment that substantially limits one or more major life activities. See 42 U.S.C. § 12102(2)(B) (setting forth the "record of" prong of the disability definition). While Routh contends that "[t]here is no allegation in the Complaint that J.H. Routh would refuse to hire anyone who was seizure free for a reasonable period of time, i.e., six months," Routh Br. at 18, the complaint can be given a broader reading. See EEOC Br. at 27 n.3 (noting that the complaint does not foreclose the possibility that Routh's seizure-free policy extends beyond seizures occurring within a discrete six-month period). In any event, the fact that Routh's policy might be viewed as "reasonable" in scope goes to Routh's defense on the issue of legitimate qualification standards. See 42 U.S.C. § 12113(a)-(b) (setting forth this defense). It does not place individuals with a record of a substantially limiting impairment outside the protection of the statute ab initio. On its face, the complaint states a viable "record of" claim. Routh also asserts that Polak's "record of epilepsy controlled by medication with petit mal seizures is not a record of disability because his seizures do not substantially limit a major life activity." Routh Br. at 17. Again, Routh is jumping the gun. It is possible that Polak does not have a record of a substantially limiting impairment. It also possible, however, that he does. Indeed, the complaint suggests that, at one point in his life, Polak experienced grand mal seizures. (R.1 Complaint, pg. 4, Apx. pg. ) (stating that "[a]s an adult Mr. Polak does not experience grand mal seizures") (emphasis added). It is premature to decide, one way or the other, whether Polak has a record of a substantially limiting impairment. Routh's argument, moreover, misses a critical point. The Commission is not seeking relief just for the discrimination against Mr. Polak. The Commission is seeking relief for "Jason Polak and each other individual adversely affected by [Routh's] policies and practices." (R.1 Complaint, pg. 6, Apx. pg. ). This is consistent with the Commission's public enforcement role, which transcends the private interests of the individual charging party. See EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 462 (6th Cir. 1999); see also EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 & n.8 (6th Cir. 1975) (explaining that the Commission can rely upon a single charge of discrimination "to support subsequent litigation to correct discriminatory practices uncovered during its investigation of [that] charge"). As discussed above, Routh's policy could well screen out individuals who have a record of a substantially limiting impairment even if Polak himself does not. Given the scope of Routh's policy, and the broad allegations of the Commission's complaint, it cannot be said, at this stage of the case, that Routh's policy did not adversely affect one or more individuals with a record of a substantially limiting impairment. 3. Although not central to its brief, Routh also argues that the district court properly held that the Commission was required to identify in its complaint the specific major life activities on which its claim of disability is based. We reiterate the position advanced in our opening brief. Notice pleading requires only that the complaint include "'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). Notice pleading does not require a claimant "to set out in detail the facts upon which he bases his claim." Conley, 355 U.S. at 47. Based on these principles, at least three circuit courts have held that an ADA plaintiff is not required, at the pleading stage, to identify the affected major life activities. These decisions are correct and should be followed by this Court.<5> Routh argues that, because the Commission "has investigated and presumably found probable cause based, in part, on the identification of a limitation of a major life activity," there is "simply no reason [the Commission] should not provide that information in the complaint." Routh Br. at 7. There are good reasons for not requiring ADA plaintiffs to provide such information in a complaint, as the Commission explained in its opening brief (at 16-17). Forcing a plaintiff to itemize the major life activities in the complaint will either box the plaintiff into a particular disability theory, at the pleading stage, or prompt the plaintiff to provide a meaningless laundry list of affected major life activities. The issue is not whether Routh thinks there is a good reason for including specific information on the affected major life activities in a complaint. The issue is whether the law requires the Commission to do so. It does not. Routh will have every opportunity to raise the disability issue as the case progresses. Routh can do so in a properly filed motion for summary judgment. Routh, if necessary, can press the point at trial. Routh is entitled to put the Commission to its proofs on the disability issue. What it cannot do is preempt the evidentiary inquiry based on a premature assessment of the merits of the Commission's case. CONCLUSION The decision of the district court should be reversed and the case remanded. 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 March 2, 2000 (202) 663-4059 1 The complaint does not "allege" that the charging party's epilepsy is controlled with medication. The complaint merely notes, in passing, that, on the "health questionnaire and inventory required by Defendant as part of its physical examination," the charging party "disclosed that he had a history of epilepsy which was controlled with medication." (R.1 Complaint, pg. 3, Apx. pg. ). 2 In this regard, this case is markedly different from Deas v. River West, L.P., 152 F.3d 471 (5th Cir. 1998), cert. denied, 119 S. Ct. 2392, 2411 (1999), the Fifth Circuit decision invoked by Routh. Routh Br. at 12-15. In Deas, the court held that epilepsy is not a "per se" disability under the ADA. Id. at 476-79. The court ruled, on a motion for summary judgment, that the plaintiff's evidence was insufficient to support a finding that the employer regarded the plaintiff as disabled due to her epilepsy. Id. at 480. In reaching this conclusion, the court relied on a fully developed factual record, which included the deposition testimony of the employer's decision-maker. Id. In this case, there is, as of yet, no factual record to examine. The precise extent of the limitations imposed by Mr. Polak's epilepsy awaits further factual development. 3 As explained in the Commission's opening brief (at 22-23 n.1), the Commission believes that it can make such an individualized showing in this case. 4 Because this admission is contained in Routh's answer, which constitutes a "pleading" within the meaning of the Federal Rules of Civil Procedure (see Fed.R.Civ.P. 7(a)), it is properly before the court in a motion for judgment on the pleadings. 5 Routh's attempts to distinguish (or explain away) these decisions are unpersuasive. Routh quotes from the portion of the Tenth Circuit's decision in Poindexter v. Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d 1228 (10th Cir. 1999), stating that "'to state a claim under the ADA, a plaintiff must articulate with precision the impairment alleged and the major life activity affected by that impairment.'" Routh Br. at 21 (quoting Poindexter). Routh omits the critical passage that follows that statement, explaining that a "plaintiff has the option of clarifying his or her position at the pleading stage or waiting until trial to prove with particularity the impairment and major life activity he or she asserts are at issue." 168 F.3d at 1232 (acknowledging that notice pleading would not require a plaintiff to itemize the major life activities in his complaint). Routh claims that the Third Circuit's decision in Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113 (3d Cir. 1998) is distinguishable because it is an "ADA Title III case prohibiting discrimination in public accommodations." Routh Br. at 22. While there are some differences between the protections of Titles I and III of the ADA, the definition of disability under Title III is precisely the same as the definition of disability under Title I. See 42 U.S.C. § 12102(2) (setting forth a single definition of disability, applicable to all Titles of the ADA). Routh also distinguishes, on its facts, the Seventh Circuit's decision in Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d 959 (7th Cir. 1996). Routh Br. at 22-23. Although Homeyer does provide general support for the Commission's position, the Commission did not cite that case for the specific proposition that the complaint does not have to reference the affected major life activities. The Commission cited Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054 (7th Cir. 1998). Routh has nothing to say about Duda.