_____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ No. 07-20661 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CHEVRON PHILLIPS CHEMICAL CO., LP, Defendant-Appellee. On Appeal from the United States District Court for the Southern District of Texas REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . ii INTRODUCTION. . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . 2 CONCLUSION. . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE. . . 30 CERTIFICATE OF SERVICE. . . . . . 31 TABLE OF AUTHORITIES CASES Auguster v. Vermillion Parish School Board, 249 F.3d 400 (5th Cir. 2001). . . . . . . . . . . . . . . 12-13 & n.4 Bauer v. Albemarle Corp., 169 F.3d 962 (5th Cir. 1999). . . . . . . . . . . . . . 13 Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997). . . . . . . . . . . . 2, 3, 5 Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999). . . . . . . . . . . . . . . . . . 10 Dibidale of Louisiana, Inc., v. American Bank & Trust Co., 916 F.2d 300 (5th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . 7 Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000). . . . . . 8 Ellison v. Software Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996). . . . . . . . . 5 Jacques v. DiMarzio, 200 F. Supp. 2d 151 (E.D.N.Y. 2002), aff'd, 386 F.3d 192 (2d Cir. 2004). . . . . . . . . . . . . . . . . . 5-6 Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir. 1980). . . . . . . . . . . . 7 Preston v. Tenet Healthsystem Memorial Medical Center, Inc., 485 F.3d 804 (5th Cir. 2007). . . . . . . . . . . . . . . . . . . . . 12 Ramirez v. Landry's Seafood Inn & Oyster Bar, 280 F.3d 576 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . 7 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). . . . . . 19-20 Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc). . . . . . 14 Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998). . . . . . . . . . . . 6 Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893 (5th Cir. 2002). . . . . . . . . 19 Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183 (3d Cir. 2003). . . . . . 22-23 Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th Cir. 1998). . .13 n.4, 23, 24 Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997). . . . . . 20, 23 S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489 (5th Cir. 1996). . . . . . . . 8 Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996). . 26, 27 Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . 20 Turner v. Baylor Richardson Medical Center, 476 F.3d 337 (5th Cir. 2007). . . . . 7 United States v. Norman, 415 F.3d 466 (5th Cir. 2005). . . . . . . . . . . . . . 12 Vadie v. Mississippi State University, 218 F.3d 365 (5th Cir. 2000). . . . . . . 14 Weese v. Schukman, 98 F.3d 542 (10th Cir. 1996). . . . . . . . . . . . . . . . 10-11 West v. Nabors Drilling USA, Inc., 330 F.3d 379 (5th Cir. 2003). . . . . . . . 20 Wyvill v. United Companies Life Insurance Co., 212 F.3d 296 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . 13-14 Zirpel v. Toshiba America Information Systems, Inc., 111 F.3d 80 (8th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . 5 STATUTES & RULES 42 U.S.C. § 12203(b). . . . . . . . . . 22 Fed. R. App. P. 32(a)(5). . . . . . . . 30 Fed. R. App. P. 32(a)(6). . . . . . . . 30 Fed. R. App. P. 32(a)(7)(B). . . . . . 30 Fed. R. Evid. 201(b). . . . . . . . . . 12 Fed. R. Evid. 701. . . . . . . . 10, 11 OTHER AUTHORITIES 30B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 7059 (interim ed. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 8, Retaliation, 2 EEOC Compliance Manual 8-6 (BNA) (2003), available at http://www.eeoc.gov/policy/compliance.html. . . . . . . . . 23 EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html. . . . . . . . . . . . . . . . 28 Centers for Disease Control & Prevention, CFS Basic Facts, May 9, 2006, http://www.cdc.gov/cfs/cfsbasicfacts/htm. . . . . . . . . . . . . . . . . . . . 11 Massachusetts CFIDS Ass'n, Chronic Fatigue & Immune Dysfunction Fact Sheet, at http://www.masscfids.org/html/CFIDS_Fact_Sheet_2002.htm (last visited Feb. 21, 2008). . . . . . . . . . . . . . . . . . . . . . . . 11-12 INTRODUCTION The Commission alleges that Chevron Phillips Chemical Company ("CPChem") violated Title I of the Americans with Disabilities Act ("ADA") when it fired Lorin Netterville because she had Chronic Fatigue Syndrome ("CFS"), a disability within the meaning of the ADA, and because she requested a reasonable accommodation. The district court granted summary judgment for CPChem, holding that Netterville was not disabled under the statute because her physical impairments were "short-lived, non-permanent, and non-severe." The court also held that CPChem had adduced a legitimate nondiscriminatory reason for Netterville's termination - falsification of information on her post-offer medical questionnaire - which the Commission failed to show was a pretext for disability discrimination or retaliation. In our opening brief ("EEOC-Br."), we argued that there was sufficient evidence in the record to support a finding that Netterville was a qualified individual with a disability because she had CFS, which substantially limited her in one or more major life activities. We also argued that a reasonable jury could find that CPChem's proffered reason for terminating Netterville was a pretext for both disability discrimination and retaliation for her request for an accommodation, based on the entire course of CPChem's conduct toward Netterville following her disclosure of her condition. Finally, we argued that the record would support a finding that CPChem failed to engage in the ADA's mandatory interactive process with Netterville with respect to her request for an accommodation, but instead immediately began searching for grounds to terminate her employment. In its brief as Appellee ("CPChem-Br."), CPChem distorts the factual record in this case and the Commission's arguments on appeal, and makes several fundamental errors in its analysis of how the ADA applies to the facts of this case. We submit this reply brief to clarify the factual record, to respond to CPChem's mischaracterizations of our positions on appeal, and to respond to CPChem's legal arguments. ARGUMENT 1. We begin by noting what CPChem does not say in its brief as Appellee: CPChem offers no response to our arguments that sleeping, caring for oneself, and thinking, concentrating, and/or cognitive function constitute major life activities within the meaning of the ADA. In its brief, CPChem suggests that there is some inconsistency between the position we take on appeal and the position we took below with respect to this Court's position on sleeping as a major life activity. See CPChem-Br.-iii. However, both in our summary judgment brief and in our opening brief on appeal, we pointed to the same case - Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997) - and gave the same, accurate recounting of this Court's statement in Burch that sleeping "could" be a major life activity under the ADA. In our opening brief, we noted that this Court did not so hold expressly in that case, and we asked the Court to join every other federal court of appeals to have considered the issue and to so hold in this case. See EEOC-Br. at 29-30 (citing cases). In its brief, CPChem offers no cogent response to our argument that Netterville was substantially limited in any of the three admitted major life activities at issue. CPChem asserts that the Commission "mistakenly" downplayed the mitigating effect of Netterville's medication on her CFS symptoms (CPChem- Br.-38-39), but the mistake here is CPChem's, not the Commission's. As we explained in our opening brief, the uncontroverted medical evidence in the record reflects that, at the time when Netterville disclosed her CFS to CPChem and made her initial request for medical leave, on February 5, 2003, her symptoms were under very poor control and were not responsive to medication. EEOC-Br.-7-9, 40-41. It was only during the two-week period when Netterville was out on medical leave that she even began treatment with the medications that would ultimately give her some relief from her symptoms. EEOC-Br.-19-20. Netterville returned to work on Friday, February 21, 2003; CPChem suspended her without pay on Wednesday, February 26, and fired her the next day, Thursday, February 27. EEOC-Br.-12-14. Thus, the EEOC's characterization of the record in our opening brief as to Netterville's condition and her response to medication is accurate: during almost the entire time frame at issue here, with the exception of the last few days, during which CPChem was already actively seeking to terminate Netterville's employment, her CFS was not responsive to medication. CPChem points to no evidence to suggest otherwise. Indeed, CPChem's own internal e-mails make it perfectly clear that the relevant time period for the employment decision in this case begins well before Netterville's symptoms began to respond to medication. The internal correspondence reflects that, no sooner did Netterville make her request for medical leave on February 5, 2003, than Gary Thurman and Steve Rugeley began corresponding about whether she could be fired for failing to disclose CFS on her medical questionnaire. P-RE-T.11 (ROA-741-42).<1> The record is clear: CPChem had made up its mind about Netterville's future employment with the company well before it could have known whether her symptoms would improve with medication. CPChem also attempts to portray the magistrate judge's holding in this case that Netterville's CFS was insufficiently "permanent" to constitute an ADA disability as "wholly in line with this Court's decisions" on the subject. CPChem- Br.-36. Here, again, CPChem is mistaken, and misstates this Court's rulings. In Burch, this Court found that the plaintiff, who was an alcoholic, was not disabled within the meaning of the ADA - not because his condition was not permanent, but because of the nature of the evidence of his impairments, which resulted primarily from inebriation itself and hangovers the next day. See Burch, 119 F.3d at 316 ("Although Burch's alcoholism may have been permanent, he offered no evidence that he suffered from any substantially limiting impairment of any significant duration."). And in Ellison v. Software Spectrum, Inc., this Court considered the specific question of whether a plaintiff undergoing treatment for cancer was substantially limited in working within the meaning of the ADA. This Court concluded - saying nothing about permanence vel non - that "[o]bviously, her ability to work was affected; but, as reflected in the [] statute and regulations, far more is required to trigger coverage under § 12102(2)(A)." Ellison, 85 F.3d 187, 191 (5th Cir. 1996). Most of the other authorities cited by CPChem in support of its "permanence" argument are factually distinguishable from this case, and actually support the Commission's position on this issue. See Zirpel v. Toshiba Am. Info. Sys., Inc., 111 F.3d 80, 81 (8th Cir. 1997) (holding that plaintiff's panic disorder, which caused only "infrequent, mild attacks," and which the plaintiff admitted did "not usually limit her activities," was not substantially limiting under the ADA); Jacques v. DiMarzio, 200 F. Supp. 2d 151, 158 (E.D.N.Y. 2002) (plaintiff not substantially limited in caring for herself based on both severity and duration of her impairment where she had difficulty caring for herself only during a single six- month period following a car accident; and even then, she admitted, her symptoms "did not affect her ability to take care of her home, to have a normal social life, or to attend to her personal hygiene"), aff'd, 386 F.3d 192, 204 (2d Cir. 2004) (same). The Second Circuit's decision in Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998), is both distinguishable and wrongly decided. In Ryan, the court held that the plaintiff's ulcerative colitis - a condition that the court acknowledged was "permanent" and likely to "trouble her for the rest of her life" - was not substantially limiting because the plaintiff "will not at all times suffer from the symptoms (and concomitant limitations) of her colitis." 135 F.3d at 871. The plaintiff in Ryan also testified that she suffered "severe symptoms only in the summer months." Id. Netterville's CFS symptoms were of significantly longer duration than Ryan's, lasting approximately six months, but, more importantly, as we noted in our opening brief, the Second Circuit's reasoning in Ryan is at odds with the reasoning of the Fourth, Sixth, and Seventh Circuits, as well as this Court's reasoning in at least one unpublished decision and the Commission's reasoning in its Compliance Manual. See EEOC-Br. 38-40. This Court has already indicated that it is not inclined to agree with Ryan's reasoning, and it should not reverse course now. CPChem also argues that there is no genuine issue of material fact as to whether Netterville is disabled based on purported "inconsistencies" in her testimony with respect to the nature and severity of her condition. Initially, we note that, even if Netterville had offered inconsistent testimony on this or any other subject, this would not constitute grounds for this Court to grant summary judgment to the defendant. As this Court has explained, In reviewing a motion for summary judgment, the court must consider all of the evidence before it, including affidavits that conflict with deposition testimony. A genuine dispute of material fact may be raised by such an affidavit "even if it conflicts with earlier testimony in the party's deposition." . . . To the extent they exist, discrepancies in those averments present credibility issues properly put to the trier- of-fact. Credibility assessments are not fit grist for the summary judgment mill. Dibidale of La., Inc., v. Am. Bank & Trust Co., 916 F.2d 300, 307 (5th Cir. 1990) (quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980)) (internal citations omitted); see also, e.g., Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (on summary judgment, "we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence"); Ramirez v. Landry's Seafood Inn & Oyster Bar, 280 F.3d 576, 578 n.3 (5th Cir. 2002) (observing that "resolving conflicts in testimony is the exclusive province of the trier of fact and may not be decided at the summary judgment stage"). The cases cited by CPChem in its brief (CPChem-Br.-42) do not hold otherwise; rather, they simply stand for the proposition that, as this Court put it, "a plaintiff may not manufacture a genuine issue of material fact by submitting an affidavit that impeaches prior testimony without explanation. . . . [A] nonmoving party may not manufacture a dispute of fact merely to defeat a motion for summary judgment." Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000) (citing, inter alia, S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996)) (emphases added). In any case, CPChem's version of the facts is incorrect. In its brief, CPChem does not point to a single instance where Netterville's testimony in her affidavit or before the magistrate judge at the evidentiary hearing (the latter a body of evidence CPChem conveniently ignores) actually conflicts with the testimony she gave at her deposition with respect to her CFS symptoms. Most of Netterville's deposition concerned matters other than CFS symptoms, but what testimony she gave on the subject was entirely consistent with her later testimony in her affidavit and before the magistrate. R.46-Exh.1; ROA-544-45 (listing medications, describing "brain fog"); ROA-546 (foggy brain, lacking energy, inability to think clearly); ROA-563 (bone and joint trouble, leg stiffness, severe hand pain); ROA-566-67 ("don't have a life," weekends spent in bed to recuperate, constant pain, "foggy brain," depression, neck and shoulder pain, needing 16 hours' rest for every 8 hours' activity, vision problems, sleep apnea); ROA-570 (foggy brain, aphasia); ROA-571-73 (depression, extreme fatigue, falling asleep behind the wheel of the car and being awakened by the rumble strip, arm and leg pain, restless leg syndrome, vision problems).<2> Netterville's affidavit and her extensive testimony at the evidentiary hearing called by the magistrate, at which the magistrate personally cross-examined Netterville, provide a more detailed account of Netterville's symptoms than her deposition testimony. However, this does not make her later statements "inconsistent" with her earlier testimony. Netterville certainly could not have been expected to answer questions at her deposition that were never posed to her, and there are no instances where she testified in her deposition that she could perform a certain task, or that she did not suffer a certain symptom, that she later claimed to be a problem. Accordingly, considering all the evidence in the record pertaining to Netterville's symptoms, there was sufficient evidence to support a finding that she was substantially limited in one or more major life activities, and a jury, rather than the magistrate judge alone, should have been given the opportunity to weigh this evidence and draw its own conclusions. Finally, CPChem's assertion that the Commission relied on inadmissible "expert" testimony by Dr. Salvato in our opening brief has no effect on the arguments we advanced in our opening brief. The magistrate judge made it clear, both in her initial ruling and in her opinion granting summary judgment, that Dr. Salvato, as Netterville's treating physician, could offer admissible testimony as a fact witness. See R.37-1-2 (ROA-225-26) ("Plaintiff may call Netterville's physician as a fact witness and, accordingly, the physician's testimony is limited to factual matters covered in her treating notes."); P-RE-T.5-9 (ROA-931) ("[T]he court will consider Dr. Salvato's testimony relating to matters that she personally observed during Netterville's doctor visits and those statements made by Netterville that were pertinent to Dr. Salvato's diagnosis or treatment.") One of the statements that CPChem identifies as allegedly constituting "expert" testimony - Dr. Salvato's assertion that she expected Netterville's condition to be permanent (CPChem-Br.-40) - is directly relevant to her diagnosis and treatment of Netterville. This is unquestionably fact witness testimony, and admissible as such. See, e.g., Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999) (a treating physician may legitimately offer opinion testimony as a lay witness pursuant to Fed. R. Evid. 701); Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 1996) ("under Fed. R. Evid. 701, a lay witness may testify as to any opinion '(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue,'" and "any opinions offered by [the physician testifying as a lay witness] were based on his experience as a physician and were clearly helpful to an understanding of his decision making process in the situation"). CPChem also complains of two instances where Dr. Salvato explained generally what CFS is, that it is recognized by the Centers for Disease Control, and how it is diagnosed. However, this information is readily available in the public domain from a variety of reliable sources, including two that we cited for other purposes in our opening brief (one of which was in the record below). See, e.g., Centers for Disease Control & Prevention, CFS Basic Facts, May 9, 2006, http://www.cdc.gov/cfs/cfsbasicfacts/htm (CFS fact sheet from Centers for Disease Control web site); see also id. (noting that "[t]here are no diagnostic laboratory tests for CFS"); Massachusetts CFIDS Ass'n, Chronic Fatigue & Immune Dysfunction Fact Sheet<3> (observing that "CFIDS is recognized by the National Institute of Health (NIH), Centers for Disease Control (CDC), Food and Drug Administration (FDA) and Social Security Administration (SSA) as a serious, often disabling illness. It is marked by unrelenting exhaustion, muscle pain, cognitive disorders that patients call 'brain fog,' and a myriad of other physical symptoms."). This kind of information is subject to judicial notice. See, e.g., Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 804, 817 & n.6 (5th Cir. 2007) (taking judicial notice of devastating effects of Hurricane Katrina in Louisiana; noting that, "[p]ursuant to Fed. R. Evid. 201(b), this court may take judicial notice of facts 'generally known within the territorial jurisdiction of the trial court' or 'capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned'"); United States v. Norman, 415 F.3d 466, 474 (5th Cir. 2005) (statements in learned treatises not excluded by hearsay rule to the extent established as reliable authority by, inter alia, judicial notice); see also 30B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 7059 (interim ed. 2007). 2. As we argued in our opening brief, there is evidence in the record from which a reasonable jury could find that CPChem's proffered reason for firing Netterville was a pretext for discrimination on the basis of her disability and because she requested a reasonable accommodation under the ADA. In its brief, CPChem, again, distorts both the Commission's arguments and the facts in the record, as well as the governing legal standard. As this Court held in Auguster v. Vermillion Parish School Board, in order to persuade the trier of fact that an employer's proffered nondiscriminatory reason for an employment action was a pretext for discrimination, a plaintiff must produce "'enough [evidence] to support a reasonable inference that the proffered reason is false; a mere shadow of a doubt is insufficient.'" 249 F.3d 400, 403 (5th Cir. 2001) (quoting Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) (internal citation omitted)).<4> In arguing that the evidence in this case is insufficient, CPChem presents a distorted and inaccurate account of the facts in the record with respect to what Netterville told CPChem and CPChem's response - an account that also fails to draw all inferences in favor of the nonmoving party, as required on summary judgment. On summary judgment, the issue is whether, taken as a whole, there is evidence in the record from which a reasonable jury could conclude that the employer's proffered nondiscriminatory reason for its actions is false and that discrimination is the real reason. See, e.g., Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 301 (5th Cir. 2000) (in ADEA case, "[a] jury issue will be presented and a plaintiff can avoid summary judgment . . . if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that age was a determinative factor in the actions of which the plaintiff complains") (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc)) (emphasis added); Vadie v. Miss. State Univ., 218 F.3d 365, 372 (5th Cir. 2000) ("An employer is entitled to judgment as a matter of law on this ultimate question [of discrimination] 'if the evidence taken as a whole would not allow a jury to infer that the actual reason for the employer's decision was discriminatory.'") (quoting Rhodes, 75 F.3d at 994). CPChem, however, fails to address the evidence of pretext as a whole. Instead, the company addresses each component of the pretext evidence in isolation, citing some precedent of this Court for the proposition that that particular type of evidence, standing alone, is insufficient to prove pretext, and then concludes that the Commission has adduced no evidence of pretext. See, e.g., CPChem-Br.-22 (alleging that EEOC "tried to meet its burden by arguing that Netterville had been honest"); CPChem-Br.-29 (characterizing EEOC's argument on pretext as relying on "mere timing, without additional evidence"). In our opening brief, we explained that the evidence in the record concerning the course of CPChem's conduct in response to Netterville's disclosure of her CFS is sufficient to support a finding that CPChem in fact fired Netterville either because she had CFS, because she requested reasonable accommodations for her CFS, or both. EEOC-Br.-46-51. We argued that a reasonable jury could look at: the questions asked on the questionnaire and Netterville's responses; the e-mails reflecting CPChem's decision to go straight to her medical questionnaire as soon as she disclosed her CFS to see if the company could find a basis for terminating her; CPChem's shifting internal explanations for which question Netterville had answered incorrectly on the questionnaire and the nurse's specious medical reasoning for her conclusion<5>; and the rest of the evidence in the record, and conclude that CPChem's "falsification" rationale was a pretext for discrimination and/or retaliation against Netterville. In response, CPChem argues repeatedly that Netterville did lie on her form, that she essentially dug her own grave by "creat[ing] the suspicion of dishonesty" at the February 5 meeting, that she "confessed" to withholding information and falsifying her form, and that she admitted that she "deliberately" chose not to include the information about her CFS on her form. CPChem-Br.-21-22, 23-24. CPChem also maintains that Netterville's own testimony about when her CFS recurred and about why she answered the questionnaire as she did was "inconsistent." CPChem-Br.-25. Here, again, CPChem distorts the factual record and tries to generate factual "inconsistencies" where none exist. To begin with, Netterville's statement at the February 5 meeting that she "kn[e]w [she] didn't tell you-all that [she] had chronic fatigue" (R.43-Exh.1A-80; ROA-286) in no way constitutes an admission of dishonesty or wrongdoing, as CPChem would have it. Netterville was ostensibly terminated, according to CPChem, for "falsifying" an answer on her medical questionnaire - i.e., for answering "no" to a question which she should have answered "yes." CPChem does not argue - as indeed it could not - that it would constitute "falsification" of the form for an employee to fail to answer a question that is not asked. Thus, for example, if an employee failed to disclose that she had an ingrown toenail, and subsequently told CPChem, "I know I didn't tell you about my ingrown toenail," this would not constitute falsification or withholding information because the questionnaire nowhere asks about ingrown toenails or other nail conditions. Nor, for that matter, does the questionnaire have a mandatory "catch-all" provision asking about other conditions than the ones expressly listed; it simply asks the employee whether "you have other health problems you'd like to discuss with the physician or occupational health nurse." P-RE-T.7 (ROA-347). As we pointed out in our opening brief, the medical questionnaire nowhere mentions CFS, any related syndromes, or even the hallmark symptoms of CFS. EEOC-Br.-49. As Netterville explained, she had two reasons for not associating CFS with the "excessive fatigue with work or exercise" question: first, that she had it so long ago that she wasn't sure she had ever had it, and, secondly, that she had not found the fatigue symptoms to be coupled with work or exercise, as the question specified.<6> CPChem suggests that the fact that Netterville had more than one reason for her answer is yet another "inconsistency" (CPChem-Br.-25), but there is nothing inconsistent about having more than one reason for answering a question in a given way unless the reasons are contradictory, or were advanced at different times as the sole reason for the answer. Furthermore, at no point did Netterville ever "admit" that she knew, or even thought, that she should have disclosed her CFS on her questionnaire, but "chose" not to do so; CPChem's witnesses may have so testified with respect to the meeting on February 26, but on summary judgment it is Netterville's version of the facts, not CPChem's, that is to be credited.<7> CPChem employs a similar tactic with respect to Netterville's testimony regarding the recurrence of her CFS symptoms, trying once again to portray her as a liar and a schemer who sequentially proffered different and contradictory dates for the onset of her symptoms. CPChem-Br.-25. Here, again, CPChem distorts the record and ignores Dr. Salvato's corroborating evidence, admissible as the testimony of Netterville's treating physician. As we explained in our opening brief, there is one genuine discrepancy in the record with respect to the onset date of Netterville's symptoms: On February 5, 2003, Netterville told CPChem that her CFS had returned two years ago (i.e., early 2001), which she subsequently realized was a mistake. EEOC-Br.-8. Apart from that one incident, however, which Netterville acknowledged in her deposition and in her affidavit, her testimony and the testimony of her treating physician have been completely consistent: she began noticing CFS symptoms in conjunction with the overtime and physical labor she was putting in relating to the office move beginning in the summer of 2002. P-RE-T.6 (ROA-1219-20) (Netterville affidavit); R.46-Exh.1-177 (ROA-570) (Netterville deposition testimony); P-RE- T.8-4 (ROA-767) (Salvato affidavit). Netterville also consistently testified that her symptoms came on gradually over the course of mid to late 2002 and were extremely disabling by the beginning of 2003; the uncontroverted evidence is that there was no single date of onset. There is, thus, no support in the record for CPChem's argument that Netterville's testimony on this point is inconsistent because it fails to pin down a date of onset or because it reflects, unequivocally, that her symptoms returned gradually during the second half of 2002. CPChem also argues that evidence that the company's explanation for firing Netterville was erroneous or unreasonable is irrelevant to the question of whether its explanation was a pretext for discrimination. This is incorrect. As this Court has explained, a jury can find that a defendant's proffered explanation is "so unreasonable that it must be pretextual." Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002). To be sure, as we acknowledged in our opening brief, an employer's good-faith reliance on an ultimately mistaken belief that an employee violated a work rule would not support a finding of pretext. EEOC-Br.- 48-49. However, this Court has not held, as CPChem suggests in its brief (CPChem-Br.-20-21), that there is no limit on employer unreasonableness without some independent evidence of "discriminatory animus." See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (at the pretext stage, an employee "may attempt to establish that he was the victim of intentional discrimination 'by showing that the employer's proffered explanation is unworthy of credence'") (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)); West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir. 2003) ("'Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.'") (quoting Reeves, 530 U.S. at 147). Finally, CPChem argues that this is a case where, "[i]n context, the timing [of Netterville's termination] proves absolutely nothing." CPChem-Br.-28 (citing Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997)). CPChem is mistaken, and the factual distinctions between this case and Soileau bring the nature of CPChem's error into sharp focus. In Soileau, the First Circuit found that the close timing of the plaintiff's discharge was not probative of retaliation because "[the plaintiff's discipline and warning happened before Guilford ever knew that Soileau was asserting he was presently disabled and before Soileau asked for [an] accommodation . . . . Accordingly, that discipline and explicit warning could not have been motivated, even in part, by a request for an accommodation." 105 F.3d at 16-17. In other words, Soileau was disciplined before his employer ever knew that he was disabled, and he was terminated for reasons pertaining to that earlier discipline. In this case, on the other hand, the entire chain of events that led to Netterville's termination was set in motion by her disclosure to CPChem that she had a disability and that she was requesting reasonable accommodation for that disability. CPChem cannot argue that, at the time it fired Netterville, it was unaware either of her disability or of her accommodation requests. In any case, try though CPChem might to pretend otherwise, this is not a "mere timing" case. A reasonable jury could look at the evidence in this case and conclude that CPChem terminated Netterville's employment because of her disability and/or in retaliation for her accommodation requests based on: her total lack of any prior disciplinary action warranting dismissal; the fact that CPChem's immediate response to Netterville's disclosure of her CFS and her requests for reasonable accommodation was to review the medical questionnaire she had filled out nearly two years before to see if it could find a basis for firing her; the fact that Netterville's responses to the questions on the questionnaire were truthful; CPChem's inconsistency as to which answer she had in fact "falsified"; CPChem's unwillingness to engage in any dialogue with Netterville or her treating physician about her symptoms or her needs; and the fact that CPChem had never terminated another employee for such an infraction, and its prior corporate entity had terminated only one employee who had confessed her guilt. 3. In its brief as Appellee, CPChem argues that an employee who requests a reasonable accommodation under the ADA is not protected from retaliation on the basis of that request unless the employee is ultimately determined to be disabled. CPChem-Br.-49. CPChem criticizes the EEOC for pointing out that every circuit court of appeals to have considered the issue has concluded that individuals seeking accommodations are protected against retaliation under the ADA even if they are not ultimately deemed to be disabled because these other decisions are "from non-controlling jurisdictions." CPChem-Br.-50. As we explained in our opening brief, there is a strong textual basis for these courts' conclusion in 42 U.S.C. § 12203(b), which provides that it is unlawful to "interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by the ADA." 42 U.S.C. § 12203(b) (emphasis added); see also EEOC-Br.-46-47 & n.6. Moreover, there are also strong policy arguments favoring this interpretation, and disfavoring the approach CPChem urges. Most significantly, without independent protection against retaliation, any individual (whether disabled or not) who might want to ask for a reasonable accommodation would put herself at risk of being fired or otherwise retaliated against with impunity depending on whether a court ultimately determined that she was disabled. This would have an obvious chilling effect on the legitimate assertion of disabled employees' rights under the ADA. See, e.g., Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) (observing that "[t]he right to request an accommodation in good faith is no less a guarantee under the ADA than the right to file a complaint with the EEOC"). The logic of this argument has equal force regardless of whether the employee seeking the reasonable accommodation ever decides to file a charge. See Soileau, 105 F.3d at 16 ("It would seem anomalous [] to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation."); Section 8, Retaliation, 2 EEOC Compliance Manual 8-6 (BNA) (2003)<8> (a request for reasonable accommodations on the basis of disability constitutes protected activity under section 503 of the ADA regardless of whether the individual making the request ever files a charge based on the denial of that request). Insofar as CPChem suggests that a holding to the contrary would open the floodgates to a rash of specious ADA retaliation claims brought by non-disabled individuals, we note that no such onslaught appears to have occurred in any of the jurisdictions that have adopted this approach, and CPChem adduces no evidence or analysis to suggest otherwise. Nor, for that matter, has any such onslaught occurred in this Court as a result of this Court's decision in Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th Cir. 1998), as to which the same "logic" - were it correct - should apply. As CPChem admits in its brief, CPChem-Br.-51, this Court found that the plaintiff in Sherrod had engaged in protected activity under the ADA by "filing EEOC complaints against American based on the reasonable belief that American's actions violated the ADA," even though the Court concluded that Sherrod was not disabled. 132 F.3d at 1122. Based on CPChem's reasoning, it should have made no difference whether Sherrod filed an EEOC charge or not; this Court's opening the floodgates to ADA coverage of non- disabled individuals in Sherrod should have led to a host of meritless retaliation claims by employees requesting accommodations and seeking the ADA's protection, but it did not. Moreover, CPChem's suggestion that limiting the ADA's protection against retaliation to individuals who file charges will serve as a bulwark against such meritless claims makes no sense. An individual who requests a reasonable accommodation without a good-faith basis for that request can just as easily go on to file a charge based on the denial of her accommodation as one who does have a good-faith basis for her request. In light of the text of the statute, the unanimity of the courts (including this Court) that have spoken on the issue, and the relevant policy considerations, there is no principled reason to allow employers to retaliate at will against employees who request a reasonable accommodation in good faith unless the employees either (a) are ultimately found to be disabled or (b) subsequently file an administrative charge challenging the denial of their accommodation requests. The letter and the spirit of the ADA counsel in favor of protecting employees who request a reasonable accommodation under the statute, and we respectfully urge this Court to recognize this point in this case. 4. Finally, there is evidence in the record from which a reasonable jury could find that CPChem failed to engage in the ADA's mandatory interactive process with Netterville with respect to her request for a reasonable accommodation. As a preliminary note, while we disagree with CPChem's argument that this claim is "moot," we agree that, as a practical matter, if this Court were to affirm the district court's grant of summary judgment on the claim that Netterville's termination was unlawful, there would be no independent claim for relief for failure to accommodate her disability or for failure to engage in the ADA's interactive process. However, for the reasons already addressed in this brief and our opening brief, CPChem is not entitled to summary judgment on these claims, and the EEOC's failure-to-accommodate claim therefore stands. In its brief, CPChem argues that Dr. Salvato's initial release note of February 18 "fails as a valid request for an accommodation under established precedent." CPChem-Br.-45. This argument is both legally wrong and factually disingenuous. As we explained in our opening brief (EEOC-Br.-43-44), in order to trigger the ADA's interactive process, the employee need not provide all conceivable details in her initial request; rather, she must "let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition." Indeed, this Court's decision in Taylor v. Principal Financial Group, Inc., quoted by CPChem in its brief, makes this point very clearly. In Taylor, as CPChem acknowledges, this Court stated that the employee or her health-care provider has the primary burden to specifically identify the disability and its resulting limitations "[w]here the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer." 93 F.3d 155, 165 (5th Cir. 1996). CPChem cannot in good faith maintain that it was ignorant of Netterville's disability at this time, given that it was already well aware of her condition and in communication with the company nurse about whether she should have disclosed it on her health questionnaire, and Dr. Salvato's note did in fact specify the precise nature of the accommodation being requested: relocation. Although CPChem tries to portray the term "substation" in Dr. Salvato's note as incomprehensible to the company, Borths testified at his deposition that he recognized Dr. Salvato's note as a medical release requesting that Netterville be reassigned to another location, and that he chose not to look into that request because the terms of the note did not specify why relocation was medically necessary. R.46-Exh.4-30, 79-81 (ROA-687, 699).<9> In any case, insofar as anything about Dr. Salvato's note or Netterville's request may have required clarification, this Court has stated repeatedly that it is the employer's obligation to communicate with the employee requesting the accommodation and to ascertain what her needs are - not to tell her that "we just can't take this" and refuse to engage in the interactive process. See EEOC-Br.-44-45. CPChem also argues that the ADA's interactive process was not triggered with respect to Netterville's first accommodation request because Netterville herself did not ask to work at a different location or provide any evidence that a job vacancy existed at another location. This Court's decision in Taylor, cited and quoted above, provides the answer to the first argument: either the employee or her health-care provider may be the one to identify the accommodation in the request. And this Court's myriad decisions on the ADA's interactive process provide the answer to the second: the time to determine what vacancies were available, and what other potential reasonable accommodations might have enabled Netterville to continue working, was when she requested a reasonable accommodation back in February 2003, not now, before this Court. See EEOC-Br.-44-45; see also EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, at 45 (Oct. 17, 2002)<10> (because "[t]he employer is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time," "the employer, as part of the interactive process, should ask the employee about his/her qualifications and interests," and is therefore "obligated to inform an employee about vacant positions for which s/he may be eligible as a reassignment"; the "employee should assist the employer in identifying appropriate vacancies to the extent that the employee has access to information about them"). CONCLUSION For the foregoing reasons and the reasons stated in the EEOC's opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,800 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: March 4, 2008 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and six hard copies of the foregoing brief, plus one electronic copy in PDF format on a 3.5-inch diskette, with this Court this 4th day of March, 2008, by overnight delivery, postage pre-paid. I also certify that I served two hard copies of the foregoing brief, plus one electronic copy in PDF format on a 3.5-inch diskette, this 4th day of March, 2008, by overnight delivery, postage pre-paid, to the following counsel of record: Counsel for Defendant: Scott R. McLaughlin, Esq. Shook, Hardy & Bacon JPMorgan Chase Tower 600 Travis St., Ste. 1600 Houston, TX 77002 (713) 227-8008 Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov *********************************************************************** <> <1> In this brief, "P-RE-T.[#]" refers to the EEOC's Record Excerpts, and "D-RE- T.[#]" to CPChem's Record Excerpts. <2> It is disingenuous for CPChem to argue that Netterville's testimony that she suffered increased depression and difficulty sleeping as a result of being fired by CPChem (R.46-Exh.1; ROA-571) somehow constitutes an example of dishonesty or inconsistency on her part. CPChem-Br.-41. There is nothing "inconsistent" about an individual with a chronic sleep disorder and/or depression finding that her symptoms worsened in response to a traumatic event like being fired, particularly on terms where her self-esteem was under attack due to allegations of deliberate deception on her part. <3> At http://www.masscfids.org/html/CFIDS_Fact_Sheet_2002.htm (last visited Feb. 21, 2008). <4> This was the definition the Auguster Court gave for "substantial evidence of pretext." 249 F.3d at 403; see also Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998) ("Evidence is substantial if it is of 'such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions.'") (internal citation omitted). <5> CPChem misunderstands our point about the nurse's medical error. CPChem- Br.-24-n.6. CPChem apparently understood us to mean that the nurse was only considering whether Netterville had a blood disorder. Rather, our point was that, when asked which question a person with CFS should have answered in the affirmative, the nurse answered that it was the "blood disorders" question, and never mentioned the "fatigue with work or exercise" question. EEOC-Br.-49-50. What is significant is that, at some point along the way, someone at CPChem decided that the "fatigue with work or exercise" question was the one Netterville had "falsified," but that someone was not CPChem's medical department. <6> Here, again, CPChem distorts the record when it asserts that Borths handled Netterville's case similarly to that of a Chevron employee from the Houston Chemical Complex who admitted both that she falsified her medical questionnaire and that she did so deliberately because she was afraid she would not be hired if she answered it truthfully. CPChem-Br.-27 n.7. Netterville "admitted" nothing of the sort, and what she did "admit" was a far cry from deliberately not answering a question that was expressly asked and unquestionably applied to her condition. <7> CPChem takes the position in its brief (CPChem-Br.-10), without any legal support, that the Commission is precluded from challenging CPChem's officials' testimony on this point because Netterville's symptoms include "foggy brain" and cognitive limitations and because she stated at her deposition that she "could not deny" telling Thurman and Rugeley that she chose not to disclose her CFS on the questionnaire because she thought it would not affect her work. This is incorrect. A reasonable factfinder would be entitled to weigh all of the evidence in the record and draw its own conclusions as to the respective weight to be accorded the different witnesses' testimony. See supra pages 7-8 (citing cases); see also R.43- Exh.1A-109-10 (ROA-302-03) (Netterville's deposition testimony, in which she testifies explicitly that she does not recall stating that she chose not to disclose her CFS because she did not feel that it would affect her work). <8> Available at http://www.eeoc.gov/policy/compliance.html. <9> For that matter, Borths also testified that, had CPChem not initially determined that Netterville falsified answers on her medical questionnaire, "then we would have engaged in the interactive process and determined whether accommodation was appropriate." R.46-Exh.4-33 (ROA-687). Accordingly, CPChem cannot maintain in good faith that it did not recognize Dr. Salvato's letter of February 18 for the reasonable accommodation request that it was. <10> Available at http://www.eeoc.gov/policy/docs/accommodation.html.