EEOC v. Wal-Mart Stores (8th Cir.) May 10, 2006 Brief as appellant IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________ No. 06-1583 ______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Western District of Missouri _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ______________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street N.W., 7th Floor Washington, DC 20507 202-663-4721 SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT The EEOC alleges that Wal-Mart violated the Americans with Disabilities Act by refusing to hire Steven Bradley as a greeter or cashier because of his disability -- mobility limitations requiring use of crutches or a wheelchair to get around. Wal-Mart asserts that Bradley's disability played no role in its decision to deny him a job. In moving for summary judgment, however, Wal-Mart argued that, because of his disability, Bradley is not qualified and, indeed, would pose a "direct threat" as a greeter or cashier. The district court granted Wal-Mart's summary judgment motion. Initially, the court held that the evidence was insufficient to support a finding that Bradley was qualified. On reconsideration, the court admitted that it had misread Bradley's physical condition but nonetheless reaffirmed its qualification ruling and also held that there is insufficient evidence of pretext. We argue in this appeal that a reasonable jury could find from the evidence that Bradley can do the essential functions of both jobs, with or without accommodation, and without posing a direct threat. Further, a jury could find that Wal-Mart's many shifting reasons for its decision are pretexts for discrimination. This appeal presents factual issues that turn on a careful review and explication of the record. The EEOC submits that oral argument of 20 minutes per side would assist this Court in resolving these issues. TABLE OF CONTENTS SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT. . . . . . . i TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. . . . . 2 2. Statement of Facts. . . . . . . . . . . . . . . . . . 3 3. District Court Decisions. . . . . . . . . . . . . . . 18 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 21 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 22 ARGUMENT THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT WAL-MART VIOLATED THE ADA BY REFUSING TO HIRE BRADLEY BECAUSE OF HIS DISABILITY.. . . . . . . . . . . . . . . . 25 A. Ample Evidence Supports A Finding That Bradley Is Qualified To Be A Greeter Or Cashier. . . . . . . 25 B. Ample Evidence Supports A Finding That Bradley Would Not Pose A Direct Threat Working As A Greeter Or Cashier. . . . . . . . . . . 36 C. Ample Evidence Supports A Finding That Wal-Mart's Proffered Reasons For Rejecting Bradley Are Unworthy Of Credence.. . . . . . . . . . 49 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 64 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 65 CERTIFICATE OF SERVICE ADDENDUM o 8/2005 Order. . . . . . . . . . . . . . . . . . . . . . . 1 o 12/2005 Order . . . . . . . . . . . . . . . . . . . . . . 15 o Photographs of Some Proposed Accommodations o Manual Sit-to-Stand Wheelchair . . . . . . . . . . . 27 o Compact-Easy Sit-to-Stand Wheelchair . . . . . . . . 28 o Sundancer Electric Scooter . . . . . . . . . . . . . 29 o No Boundaries Portable Electric Scooter. . . . . . . 30 o Might-E-Tug . . . . . . . . . . . . . . . . . . . . 31 TABLE OF AUTHORITIES CASES Page(s) Belk v. Southwestern Bell Telephone Co., 194 F.3d 946 (8th Cir. 1999). . . . . . . . . . . . . . . 44 Benson v. Northwest Airlines, 62 F.3d 1108 (8th Cir. 1995). . . . . . . . . . . . . 27-28 Bradgon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . 2, 37-38 Branham v. Snow, 392 F.3d 896 (7th Cir. 2004). . . . . . . . . . . 42, 46-48 Canny v. Dr. Pepper/Seven-Up Bottling Group, 439 F.3d 894 (8th Cir. 2006). . . . . . . . . . . . . . . 27 Carter v. Casa Central, 849 F.2d 1048 (7th Cir. 1988) . . . . . . . . . . . . . . 42 Chevron USA v. Echazabal, 536 U.S. 73 (2002). . . . . . . . . . . . . . . . 2, 38, 44 Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011 (8th Cir. 2000) . . . . . . . . . . . . 26, 27 Dadian v. Village of Wilmette, 269 F.3d 831 (7th Cir. 2001). . . . . . . . . . . . . . . 46 Doebele v. Sprint/United Management Co., 342 F.3d 1117 (10th Cir. 2003). . . . . . . . . . . . . . 42 Dominguez-Cruz v. Suttle Caribe, 202 F.3d 424 (1st Cir. 2000). . . . . . . . . . . . . . . 51 Echazabal v. Chevron USA, 336 F.3d 1023 (9th Cir. 2003) . . . . . . . . . . . . 42-43 EEOC v. Amego, 110 F.3d 135 (1st Cir. 1997). . . . . . . . . . . . . . . 48 EEOC v. Sears, Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . . . . . . . . . . . 53, 57 Fenney v. Dakota, Minnesota, & Eastern Railroad Co., 327 F.3d 707 (8th Cir. 2003). . . . . . . . . . . . 2, 27-28 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). . . . . . . . . . . . . . 51-52 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . . 50 Hall v. NLRB, 941 F.2d 684 (8th Cir. 1991). . . . . . . . . . . . . . . 51 Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003). . . . . . . . . . . . . . . . 46 Howard v. Green, 555 F.2d 178 (8th Cir. 1977). . . . . . . . . . . . . . . 44 Hicks v. St. Mary's Honor Center, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . . . . . 50 Hutton v. Elf Atochem North America, 273 F.3d 884 (9th Cir. 2001). . . . . . . . . . . . . . . 46 Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) . . . . . . . . . . . . . . 50 Kobrin v. University of Minnesota, 34 F.3d 698 (8th Cir. 1994) . . . . . . . . . . . . . 51, 53 Lovejoy-Wilson v. NOCO Fuels, 263 F.3d 208 (2d Cir. 2001) . . . . . . . . . . . . . 37, 46 Lynn v. Deaconess Medical Center, 160 F.3d 484 (8th Cir. 1998). . . . . . . . . . . . . . . 51 Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997). . . . . . . . . . . . . .50-51 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . 56, 60 McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004), cert. denied, 125 S. Ct. 2294 (2005). . . . . . . . . . . 47 Moses v. American Nonwovens, 97 F.3d 446 (11th Cir. 1996). . . . . . . . . . . . . . . 46 Nunes v. Wal-Mart Stores, 164 F.3d 1243 (9th Cir. 1999) . . . . . . . . . . 39-40, 46 Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004). . . . . . . . . . . . . . . 59 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . 60 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) . . . . . . . . . . . . . . 2, 21-22, 50 Sabree v. Local 33, 921 F.2d 396 (1st Cir. 1990). . . . . . . . . . . . . . . 60 School Board of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . . . . . . . . . . . . . . 37 Smith v. Allen Health Systems, 302 F.3d 827 (8th Cir. 2002). . . . . . . . . . . . . . . 51 Smith v. City of Des Moines, 99 F.3d 1466 (8th Cir. 1997). . . . . . . . . . . . . 22, 48 Stafne v. Unicare Homes, 266 F.3d 771 (8th Cir. 2001). . . . . . . . . . . . . . . 46 Terra Industries v. National Union Fire Insurance Co., 383 F.3d 754 (8th Cir. 2004). . . . . . . . . . . . . . . 46 United States v. Ollie, 442 F.3d 1135 (8th Cir. 2006) . . . . . . . . . . . . 45-46 Young v. Warner-Jenkinson Co., 152 F.3d 1018 (8th Cir. 1998) . . . . . . 2, 21, 51, 57, 62 STATUTES, REGULATIONS and RULES 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . passim 42 U.S.C. § 12101(a)(2) . . . . . . . . . . . . . . . . . . . . . 45 42 U.S.C. § 12101(a)(7) . . . . . . . . . . . . . . . . . . . . . 45 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12111(3). . . . . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12111(8). . . . . . . . . . . . . . . . . . . . 2, 22, 27 42 U.S.C. § 12113(a). . . . . . . . . . . . . . . . . . . . . . . 44 42 U.S.C. § 12113(b). . . . . . . . . . . . . . . . . . . . . . 2, 44 42 U.S.C. § 12117 . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 C.F.R. § 1630.2(m). . . . . . . . . . . . . . . . . . . . . . . . 2, 27 29 C.F.R. § 1630.2(n). . . . . . . . . . . . . . . . . . . . . . . . . 27 29 C.F.R. § 1630.2(r). . . . . . . . . . . . . . . . . . . . . . 2, 37-38 29 C.F.R. Pt. 1630, App. § 1630.2(r) . . . . . . . . . . . . . . . . . 42 29 C.F.R. Pt. 1630, App. § 1630.15(b). . . . . . . . . . . . . . . . . 46 Fed. R. Civ. P. 8(c) . . . . . . . . . . . . . . . . . . . . . . . . . 44 OTHER AUTHORITY H.R. Rep. No. 845(III), 101st Cong., 2d Sess. (1990) reprinted at 1990 U.S.C.C.A.N. 445 . . . . . . . . . 44-45 H.R. Rep. No. 485(II), 101 Cong., 2d Sess. (1990), reprinted at 1990 U.S.C.C.A.N. 303. . . . . . . . . . 45, 63 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________ No. 06-1583 ______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Western District of Missouri _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________ STATEMENT OF JURISDICTION This case was brought under Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 12117. The district court entered judgment for defendant on August 12, 2005. R.144(EEOC's Appendix ("PA")255). Plaintiff's timely motion for reconsideration (R.145(PA259)) was denied on December 21, 2005. R.148(PA241-54). The Commission filed a timely notice of appeal on February 21, 2006. R.149(PA271). This Court has jurisdiction over the appeal under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether there is sufficient evidence to support a finding that Steven Bradley was qualified for the entry-level jobs of greeter and cashier. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m); Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707 (8th Cir. 2003). 2. Whether the defendant is entitled to summary judgment on the alternative ground that Bradley would pose a "direct threat" working as a greeter or cashier. 42 U.S.C. § 12113(b); 29 C.F.R. § 1630.2(r); Chevron USA v. Echazabal, 536 U.S. 73 (2002); Bradgon v. Abbott, 524 U.S. 624 (1998). 3. Whether there is sufficient evidence to support a finding that the defendant's stated reasons for refusing to hire Bradley are a pretext for disability discrimination where there is evidence inter alia that Wal-Mart's reasons changed repeatedly over time. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000); Young v. Warner-Jenkinson Co., 152 F.3d 1018 (8th Cir. 1998). STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court dismissing this enforcement action under the ADA. The complaint alleges that the defendant violated the ADA by refusing to hire Steven Bradley because of limitations on his mobility caused by cerebral palsy. R.1(PA17-21). On August 12, 2005, the district court granted the defendant's motion for summary judgment on the ground that Bradley's impairment rendered him unqualified for employment with the defendant. R.143(PA241). On December 21, 2005, the court denied the plaintiff's motion for reconsideration, reaffirming its earlier ruling as to qualifications and adding that there is also insufficient evidence that the defendant's articulated reasons for rejecting Bradley were pretextual. R.144(PA261). 2. Statement of Facts Steven Bradley has limited use of his legs as a result of cerebral palsy, a condition that occurs at birth and does not worsen over time. See PA127(8-10). <1> Typically, he gets around using forearm crutches or a wheelchair. Id.(9). In addition, his third and fourth fingers generally work as a unit, precluding him from using his fourth finger, for example, when typing (id.(10)); he has also developed knee problems and elbow deformities, mainly from overuse. PA128(12-14). Despite these limitations, Bradley is healthy, takes no medications, and has no cognitive disfunctions. PA113(59-60)(Singh); PA106(Singh report); see also PA235-40(Bradley's 7/1999 to 12/2000 Banta Publishing performance evaluations (noting near perfect attendance and average or better performance)). He lives on his own and does his own housekeeping. See PA46(3); PA94 ("independent in all activities of daily living"). He can carry laundry or groceries and pick up small items off the floor while using his crutches or wheelchair. PA118-19(Bradley Declaration("Decl.") ¶¶ 8-14) (adding that he does not need two crutches to stand, can in some circumstances walk with one crutch while carrying something in the other hand, and can operate his wheelchair with one hand); PA64-65(Fevurly Report 3-4); PA72(Functional Capacity Assessment ("FCA")). In addition, Bradley's grip strength is normal, and his arms are very strong – he can lift heavy objects even from his wheelchair; he also lifted and carried his children when they were small. PA118(Bradley Decl.¶ 9); see also id.(¶ 8 (bend and lift repeatedly without injury)); PA65- 66(Fevurly Report 4-5); PA192(99-100)(Fevurly) (because of his reliance on crutches, Bradley's upper body strength is "outstanding"). Moreover, although standing for more than 10 or 15 minutes is difficult (PA65(Fevurly Report 4)), Bradley can, with support, walk, climb stairs, and get on and off a stool, albeit slowly. See, e.g., PA64(Fevurly Report 3); PA75(FCA); PA106- 08(Singh). While he "occasionally" slips on a slick spot when walking with his crutches, for example (PA65(Fevurly Report 4)), he has fallen only once while using his wheelchair - playing basketball at a gym. PA118(Bradley Decl.¶¶ 5-6). In early 2001, the local Wal-Mart store in Richmond, Missouri, was expanding into a supercenter. As a result, the company needed to hire dozens of people for all positions, including the entry-level jobs of greeter and cashier. PA42-43(Daugherty Aff.¶¶ 6-7); PA33(32); PA172(36). To facilitate the hiring process, Wal-Mart temporarily assigned several new managers, including Maxine Hicks, to review applications and screen out applicants based primarily on availability and work history, and to interview the remaining candidates. PA31- 33(25-32), PA172-75(35-38)(Hicks). Bradley submitted an application for employment, along with his resume, during this period. See PA208-12(application and resume). On the application, he indicated that he had completed two years of post-high-school education, had been employed since 1998 as a proofreader/quality inspector with Banta Publications, and had previously administered a program for seniors with Ray County Fellowship Center from 1995 to 1997. PA208-10. He also stated that he was willing to work either part-time or full-time and indicated that he could work from 4:00 until 10:00 every evening including Saturday and Sunday. PA212. Bradley typically shops at Wal-Mart several times a week, usually in his wheelchair, and is a familiar figure at the store. PA118(Bradley Decl.¶ 3); PA50(164)(shops thrice weekly). For that reason, during the application process, both Hicks and Personnel Manager Janet Daugherty recognized Bradley; Daugherty even knew his name. PA181(115)(Hicks); PA159(106- 08)(Daugherty). Based on his application and resume, Bradley was called in for an interview. He arrived for his interview in his wheelchair. PA181(115) (Hicks). Bradley recalls that, during his interview, Hicks asked about his "physical ability to handle work from a wheelchair" and told him that she thought he was "best suited for a greeter job." PA121(Bradley Decl. ¶¶ 41-42). There is conflicting evidence as to what happened next. In its position statement during EEOC's investigation of Bradley's charge, Wal-Mart did not identify a decisionmaker but stated that Bradley's application was rejected because he had "very limited availability" including "questionable weekend availability" and he "did not indicate any previous retail or register experience." PA104-05. In contrast, according to the interview notes of Michael Katz, the EEOC investigator who handled Bradley's charge, Hicks indicated that the "primary reason" for rejecting Bradley was "the absence of a history of job stability," and a "secondary factor" in "her decision" was "limits on his availability," in that weekend work was "negotiable." PA201. In her deposition, however, Hicks testified that she had "no idea" why Bradley was rejected. PA177-78(93-94) (adding that she could think of no reason why he was not qualified or eligible for employment). She stated that she was "impressed" with him (PA175(84)) and, after his interview, had placed his application in a pile for further processing. See id.(85); cf. PA157(98)(Daugherty took Bradley's application from pile awaiting reference checks). She added that she found Bradley "very pleasant," "would consider him for employment," and "thought he would be hired." PA175(84-85); PA177(93). In an affidavit submitted in support of summary judgment as well as in her deposition, Personnel Manager Janet Daugherty testified that she made the decision to reject Bradley's application without even checking his references. PA44 (Aff.¶¶ 16-17); PA150(11); PA156(96). According to her affidavit, her decision was based on Bradley's "rather specific restrictions in available hours, work experience and his lack of work experience directly working with the general public or in retail operations." PA44(¶ 17). In contrast, in her deposition, Daugherty listed at least six reasons why Bradley was not offered a job, but did not mention any lack of relevant work experience. See generally PA153-163(85-125). In her deposition, Daugherty initially stated that the "main reason" Bradley was not hired was "job history": multiple "short-term jobs" lasting a year or less and failure to list all prior employment on his application. PA153(85). Daugherty acknowledged that Bradley's application does not indicate that he went "from job to job" (PA157(99-100)); however, she stated that she knew a lot of people in the small town where the store is located and, so, was aware of Bradley's true employment history. PA153(85). Specifically, she testified that she knew he had worked at a Texaco gas station, where she recalled seeing him on the job (PA155(92-93), at Shirkey's nursing home, and at Station Casino (id.(91-92)); she added that he had also been a police dispatcher. Id.(91); see also PA153(85). Under questioning, however, Daugherty admitted that she was uncertain whether Bradley had had these jobs when she decided not to hire him. PA155-56 (90, 93-95). Further, when asked how she could be sure she had decided against hiring Bradley "because he had worked at all these jobs and didn't list them on his application," she conceded that she was "not sure." PA156(94-95). In fact, Bradley worked at Shirkey's and as a police dispatcher after being rejected at Wal-Mart; he resigned his job as a cashier/attendant at the Texaco station after only one day because the work area was not wheelchair accessible; and he never worked at Station Casino although he took a class there to learn to be a poker dealer. See, e.g., PA119-20(Bradley Decl.¶¶ 17-28); PA129-30(38-39); PA131(49-50); PA133(57-58). Daugherty could not think of any other jobs that would support her statements about his job history. See PA157(101). Daugherty also offered Bradley's availability as a reason for rejecting him. She admitted that she would have hired him based on the availability he had stated on his 2001 application. PA162(118-19). She noted, however, that Bradley was then still working at Banta and, while conceding that this "didn't rule him out by any means," her "opinion" was that, assuming – as she did — that he intended to retain his position at Banta, working both jobs would be "a hardship." PA162(119-21). She also stated that she recalled that, on an application he had submitted in July 2000, Bradley had stated that weekends were "negotiable." PA163(122-24). Since she assumed that what he wrote on that earlier application represented his true availability, it made him unattractive because Sunday was the "busiest" shopping day. Id.(123-24) ("I don't have time to fool with somebody that's negotiable"). According to Daugherty, she remembered this detail after looking at Bradley's 2000 application along with approximately 100 others during a routine review of files upon becoming personnel manager the previous fall. PA164(160). Next, although Bradley had listed his supervisor at Banta as a reference on his 2001 application, Daugherty testified that she specifically remembered that his July 2000 application had indicated that Wal-Mart should not contact Banta. PA163(124); see also PA158(103). She noted that this was not "necessarily a problem," but it was "just another red flag as to a problem application." PA163(125). Further, although she could not identify any personnel who had dealt with such problems, Daugherty recalled various attempts by Bradley to make "problem" returns at the customer service desk. PA158 (104-05), PA159-61 (109-14). Finally, she asserted that Bradley was suspected of shoplifting – of stashing electronic items in the pockets of his wheelchair – since he did not always carry one of Wal-Mart's blue shopping baskets. She could not, however, recall who in loss prevention had made this accusation or when any of the alleged incidents had occurred; she stated that at least as of the time of her deposition, Bradley was not being watched while he was shopping. See PA161-62(114-18). Deborah West and Donald Walker also applied to work as associates at the supercenter around the same time as Bradley. See PA213-15 (Walker); PA216-18 (West). According to their applications, Walker and West were seeking part-time work, West specified that she intended to keep her day job. PA217. Neither Walker nor West was a student. West indicated that she had two years of post-high school education (PA216); Walker that he had finished high school (PA213). Neither of their applications reflected any retail or register experience. West had held three different jobs as a medical assistant and worked briefly in office maintenance. PA217. Walker had at some point worked for Pioneer Container but his position and tenure there, like his overall work history, were unclear since he only sketchily filled in the employment history section of his application. PA214. Both applicants set limits on their availability. Walker could work from 5:30 to 10 p.m. during the week and anytime on the weekend. See PA214-15. As for West, she was available four weekday evenings from 5:00 or 6:00 to 10:00 or 11:00 p.m., from 5:00 to 11:00 p.m. on Saturday evenings, and not at all on Thursday or Sunday. PA217-18. Walker and West were hired by Wal-Mart. Bradley, however, never heard back from Wal-Mart after his interview with Hicks. See PA143(213-14). Sometime after his interview, Bradley saw a television news story about an EEOC lawsuit involving an individual with cerebral palsy who had been denied employment at Wal-Mart. Bradley contacted the EEOC's Kansas City office and offered to describe his experiences to buttress the other case. PA141-42(203-09). He subsequently filed his own charge of disability discrimination. PA205. Although neither Hicks nor Daugherty stated that Bradley's physical limitations played a role in the rejection of his application for employment, Wal-Mart argued in support of its motion for summary judgment that, due to his cerebral palsy, Bradley was not qualified for any available job at the store, including greeter or cashier.<2> The EEOC responded with evidence that, notwithstanding his impairment, Bradley was able to perform the duties of the greeter or cashier positions, although, at least in the latter position, he might require some reasonable accommodations. Hicks testified that she thought a wheelchair user could be a greeter (PA182(118)), and Daugherty testified that, with reasonable accommodation, a wheelchair user could be a cashier. PA152(26-27). In addition, a Wal-Mart management resource publication suggests possible accommodations to enable a person in a wheelchair to work as a cashier. PA229-30 (Resource Retention Guide ("RRG") § 311). Several witnesses also observed persons with mobility impairments at other Wal-Mart stores working as greeters or cashiers while seated in a wheelchair or on a high stool. See PA122 (greeter in power wheelchair); PA123 (greeter in motorized wheelchair); PA123-25 (cashier wearing leg braces on high stool). The Commission's principal expert, Vocational Rehabilitation Consultant Kent Jayne, concluded that Bradley could likely work as a cashier or greeter, at least with reasonable accommodation, and would not pose a direct threat in either job. See, e.g., PA101-02(Jayne Decl.¶¶ 27-37); PA115-17 (Rebuttal Report 2-4). Noting that the job descriptions for both jobs require "some mobility and standing," Jayne recommended, to accommodate Bradley's limitations in standing, a sit-to-stand wheelchair, an ergonomic drafting-type stool with armrests, a scooter stool, or a lightweight wheelchair. PA100-01(Decl.¶¶ 27-29, 32); PA116(Rebuttal Report 3); PA91-92(94- 100) (adding that sit-to-stand wheelchair would allow both vertical and horizontal mobility). For the greeter job, Jayne stated that Bradley would not need an accommodation to verify payment with a handscanner, nor to move a shopping cart or empty trash baskets, although he might do these latter two tasks more efficiently with an electric scooter or similar device. PA101 (Jayne Decl.¶¶ 29-33). As for the cashier job, Jayne recommended inter alia removing a few inches of the divider to the right of the checkstand to accommodate a regular wheelchair, allowing Bradley to use a narrower wheelchair as well as a handscanner, and adding a convex mirror to let him spot items under shopping carts. PA91-92(94-98); PA116-17(Rebuttal Report 3-4) (noting that, although Bradley is stable while seated, armrests on the drafting stool would address any balance concerns Wal-Mart might have); see also PA100-01(Decl. ¶¶ 30, 34)(scooter). He further stated that, if Bradley used a wheelchair or electric scooter, he "would pose no greater danger than any customer in a wheelchair or electric scooter, both of which Wal-Mart provides to customers for use in their stores." PA116(Rebuttal Report 3). Bradley's treating physician, Dr. Daljeet Singh, stated that Bradley was in good health and could safely do the tasks involved in the greeter and cashier positions. PA106, 108-09; PA111- 12(Dep.52-55). Bradley himself also attested that, based on his observations of the jobs while shopping and his knowledge of his own physical capabilities, he could do a Wal-Mart job. PA121(Decl.¶ 43). Wal-Mart offered expert evidence from Dr. Chris Fevurly who opined that Bradley was "very friendly and articulate," but he could not safely or efficiently work as either a cashier or a greeter. PA66; PA68-69 (Fevurly Report 5, 8-9). Indeed, Dr. Fevurly stated, Bradley would pose a "direct threat" if employed as a greeter or cashier. PA69-70(Report 8-9). In forming this opinion, Dr. Fevurly made two assumptions: both jobs require "prolonged" or "frequent" standing (PA67- 68(Report 6-7)); and Bradley would use his crutches, rather than a wheelchair. Id.; see also PA198(171) ("I'm talking about his having to stand and use crutches"). Dr. Fevurly opined that, using his crutches, Bradley would present an "obstacle" or "insurmountable hazard" to others because, with crutches, he is nearly "twice the width" of an average person without crutches. PA188(80); PA197(167); PA69-70 (Fevurly Report 8-9). However, Dr. Fevurly noted, the "biggest risk" would be falling. PA78(76). According to Dr. Fevurly, Bradley falls as often as every other week (id.; but see PA65 (Report 4 (falls "occasionally")); and, in a "retail environment" like Wal- Mart, he might fall "at least daily." PA78(76). Even falling "from floor level, standing on the floor," Dr. Fevurly noted, "you can fracture and kill yourself," so if Bradley hit his head even from ground level, it might be "life threatening." PA79(79-80). Dr. Fevurly warned that such a fall might endanger not only Bradley but also anyone who tripped over him and/or came to his assistance. PA197-98(167-68). Dr. Fevurly also questioned whether Bradley could safely balance while seated on a drafting- type stool that did not have armrests. PA89(165). He acknowledged that there would be a decreased risk if Bradley used a wheelchair, conceding that Bradley is "very . . . stable in a wheelchair." PA78(76-77); see also PA79(79) (never observed Bradley using wheelchair); PA80(85) ("much less of a threat" when not on crutches). Nor would Dr. Fevurly have "a huge problem" with Bradley using a motorized scooter or similar device, as long as he were careful. PA198(170). Dr. Fevurly stated, however, that, based on his observation, Bradley would "have to be up on his feet" as a cashier and, while he could sometimes use a wheelchair as a greeter, he would still have to "get up and do tasks where he is standing probably somewhere between 25 and 40 percent of the time." PA78(77). Dr. Fevurly added that prolonged standing would likely cause Bradley knee and back pain over time and that he had never worked 8-hour shifts. PA69-70 (Fevurly Report 8, 9); but see PA139(192)(Bradley worked 36.5 hrs/wk at Banta). Dr. Fevurly also questioned Bradley's ability to do specific body movements. He opined that Bradley could not walk or stand for a prolonged period, walk safely over wet floors, or carry objects requiring both hands. See PA68-69(Fevurly Report 7-8). He also opined that Bradley has "significant problems" transferring between sitting and standing and can do only occasional bending and stooping. Id.; but see PA75(FCA Addendum ("Add.") 3) ("good body mechanics," safe transitioning from sitting to standing). Dr. Fevurly admitted, however, that, working at Wal-Mart, Bradley would need to bend over and pick up items only infrequently. PA81(91). He also admitted that, using his wheelchair, Bradley can lift and carry heavy objects "in a nearly unlimited fashion." PA190-91(89-90). In addition, at Wal-Mart's behest, Janet Morgan conducted a Functional Capacity Assessment of Bradley. PA71-75(FCA & Add.). According to her report, Morgan found Bradley "pleasant and cooperative"; capable of "slow to moderate pace ambulation and stair climbing using canes"; and "able to transition from sitting in a wheelchair to standing with crutch support safely over two days of testing," to "work overhead from a seated position, to kneel unsupported, and to perform modified materials handling activities while seated in a wheelchair." PA75; see also PA73 (generally normal upper body flexibility). She also noted that Bradley demonstrated "improved function when allowed to modify activities to include wheelchair for mobility." PA75. Further, she stated that Bradley could kneel and sit without assistance; with canes or a wheelchair, he could push objects, stand more than 15 minutes, walk more than 500 feet, and lift and/or carry 50 pounds. PA72. Based on her assessment, Morgan concluded that, without accommodation, Bradley's "current demonstrated capabilities fall below [the identified Essential Functions] for positions of cashier [and] greeter." PA71. She stressed, however, that this conclusion did "not include consideration of possible task modifications or reasonable accommodation" such as "use of wheelchair for mobility or limited materials handling." Id. <3> 3.District Court's Decisions In August 2005, the district court granted Wal-Mart's motion for summary judgment. R.143(PA241-54)("8/2005 Order"). The court analyzed the claim under the "well-worn McDonnell Douglas burden-shifting framework." PA246. The court noted that Wal-Mart does not dispute that the EEOC can establish that Bradley is disabled and suffered an adverse employment action when he was not hired. Accordingly, "the only issue" concerning the prima facie case is "whether Bradley is qualified to perform the essential functions of the [greeter and cashier] position[s]." PA248-49. Citing the job descriptions in EEOC's exhibits, the court listed the essential functions of each position and concluded that there is insufficient evidence to show that Bradley could do these functions, with or without accommodation. PA250-51. Regarding the greeter position, the court noted that EEOC relied on a statement from Hicks that people in wheelchairs could be greeters, but, in the court's view, this was not "sufficient proof" of Bradley's ability to do the essential functions of the job. PA251. "Clearly," the court reasoned, the fact that someone in a wheelchair can do a job does not mean that everyone, "regardless of other limitations or circumstances," can likewise do the job from a wheelchair. PA251-52. According to the court, "Bradley is an individual with cerebral palsy and suffers from spastic diplegia in his hands." PA252. While EEOC pointed to testimony that Bradley's upper body strength and balance enable him to move 50-pound objects from his wheelchair and bend easily to pick up items off the floor, the court held that those examples "are single tasks that are not sufficient" to create an issue of fact on Bradley's ability to do "the essential functions of the position for an entire shift using only his wheelchair." Id. As for the cashier position, the court was similarly unpersuaded by Daugherty's general statement that people in wheelchairs could be cashiers and concluded that EEOC failed to "put forth sufficient evidence demonstrating that Bradley, the individual in question, is capable of performing all of the essential functions of the Cashier position using only his wheelchair," with or without an accommodation. PA253-54. The court acknowledged that a plaintiff who has shown that he can do the essential functions of a job with or without accommodation "can shift the burden of production to the employer to demonstrate that it is unable tp [sic] accommodation [sic] the employee." PA252. Here, however, the court concluded, the burden never shifted to Wal-Mart because EEOC did not present sufficient evidence of Bradley's abilities with his wheelchair. PA252-53. The Commission moved for reconsideration stressing in particular that Bradley's cerebral palsy does not substantially affect his ability to use his hands. R.145(PA129). In a December 2005 Order, the court denied the motion. R.148(PA261-74)("12/2005 Order"). The court acknowledged that it had "misinterpreted the confusing statement that Bradley ‘has had spastic diplegia with lesser problems with his hands since birth' to mean that Bradley's spastic diplegia affected his hands." PA268. The court denied, however, that its summary judgment order in any way "hinged" on this misunderstanding. PA268-69. Rather, the court stated, the order turned on the lack of evidence that "Bradley was qualified to perform the essential functions" of the jobs of cashier and greeter. PA269. The court then ruled that summary judgment was also appropriate because the Commission "failed to present evidence that Wal-Mart's stated reasons for not hiring Bradley were a pretext for discrimination." PA269. The court noted that Wal-Mart asserted that it did not hire Bradley because of his limited availability, his work history, and his lack of retail experience. PA270. According to the court, EEOC's "only evidence" of pretext was "a comparison of a handful of applicants who were hired" by the company. In the court's view, none of these individuals was "substantially similar" to Bradley in terms of availability or relevant work experience since they were either students, had previous work experience with the general public or in retail or intended Wal-Mart as a second job. PA260-61. Accordingly, the court concluded, the EEOC "wholly" failed to refute Wal-Mart's proffered reasons for not hiring Bradley or to explain how these individuals were similarly situated to him. PA271. STANDARD OF REVIEW This Court reviews a grant of summary judgment de novo. Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1021 (8th Cir. 1998). Summary judgment is proper if, viewing the evidence and drawing all reasonable inferences in favor of the nonmovant, no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Id.; see also Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 151-52 (2000) (Rule 50). Where the moving party also bears the burden of persuasion on a particular issue, that party must support its summary judgment motion "with evidence that would entitle it to a directed verdict if not controverted at trial." Smith v. City of Des Moines, 99 F.3d 1466, 1471 (8th Cir. 1997). SUMMARY OF ARGUMENT The Commission alleges that Wal-Mart violated the ADA by refusing to hire Steven Bradley as a greeter or cashier because of his disability -- due to cerebral palsy, Bradley gets around using crutches or a wheelchair. The district court granted summary judgment to Wal-Mart, finding the evidence insufficient to establish that Bradley is "qualified" for these positions or that Wal-Mart's explanation for rejecting him was pretextual. Both rulings are erroneous. An individual is "qualified" under the ADA if he can perform the essential functions of the desired position(s) with or without reasonable accommodation. 42 U.S.C. § 12111(8). Bradley's disability significantly limits his ability to walk and stand, so the only real dispute is whether, with or without accommodation, he can perform essential functions of the greeter and cashier positions relating to mobility. There is evidence that he can. Personable and healthy, Bradley has "outstanding" upper body strength and can even operate his wheelchair with one hand. To the extent accommodation is needed, EEOC's expert proposed several that would allow Bradley to work while sitting down. Further, there is evidence, including testimony from two managers, that Wal-Mart expressly contemplates that wheelchair users can be greeters and cashiers. While Wal-Mart asserted that Bradley's disability played no role in its decision, in moving for summary judgment, the company cited to its expert who concluded that, because of his disability, Bradley not only was unqualified but would pose a "direct threat" – a "significant risk of substantial harm" to himself and others – as a greeter or cashier. This conclusion is premised on two assumptions. First, that Bradley would have to stand for all or most of his shift as a greeter or cashier. Second, that Bradley would rely on crutches, rather than a wheelchair. Both assumptions are faulty. As noted above, a jury could find, based on the evidence, that the jobs can be done from a wheelchair. Moreover, in light of evidence of Bradley's wheelchair use, even for his employment interview at Wal-Mart, a jury could find that he would and could work from a wheelchair or similar mobility device. There is no evidence he would pose a direct threat in a wheelchair. In its initial ruling, the district court, without addressing EEOC's evidence, held that the Commission had not put forth sufficient evidence regarding Bradley's "abilities" using a wheelchair to demonstrate that he could do the essential functions of these jobs "solely with his wheelchair." 8/2005 Order at 12-13. This ruling makes sense to the extent that it was based on a misperception the court was laboring under at the time – that cerebral palsy substantially limited Bradley's use of his hands as well as his legs. If true, Bradley might be unable to do cashier or greeter-related tasks such as making change or picking up items off the floor even in a wheelchair. As the court acknowledged on reconsideration, however, Bradley's manual dexterity is good. There is simply no evidence that he could not do all the essential functions of these jobs "solely with his wheelchair." Given Bradley's true condition, therefore, the ruling is without foundation and cannot stand. The judgment likewise cannot stand on pretext grounds. When an employer has offered different explanations for an adverse employment action and there is evidence that the explanations are unworthy of credence, the factfinder may reasonably infer that the true explanation is unlawful discrimination. In this case, the Commission offered evidence that, at various times throughout the proceedings, Wal-Mart offered at least eight different reasons for its decision, and there is even some doubt as to the identity of the decisionmaker. There is also evidence that the reasons themselves are factually incorrect, internally inconsistent, and/or highly implausible. This evidence amply supports a finding of pretext. In reaching the contrary conclusion, the district court uncritically credited the explanation Wal-Mart settled on in moving for summary judgment and completely ignored the company's shifting reasons, along with most of the other evidence discrediting those various reasons. This was error. Wal-Mart took the remarkable position that, since a few of its shifting reasons overlapped, the fact that "some people" gave "additional reasons" for not hiring Bradley was "immaterial." On the contrary, given the variety and sheer number of proffered reasons, a jury could easily find that Wal-Mart was simply making up reasons as the case progressed in an effort to hide the fact that its true reason for rejecting Bradley was his disability. No more is required. The judgment, accordingly, should be reversed. ARGUMENT THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT WAL-MART VIOLATED THE ADA BY REFUSING TO HIRE BRADLEY BECAUSE OF HIS DISABILITY Section 102(a) of the ADA prohibits an employer from discriminating against "a qualified individual with a disability because of [such individual's] disability" with respect to "job application procedures [and] hiring." 42 U.S.C. § 12112(a). To establish a claim under this provision, the Commission must show that the charging party (1) had a disability within the meaning of the ADA, (2) was qualified (with or without reasonable accommodation) for the position[s] in question, and (3) suffered an adverse employment decision because of his disability. See Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1016 (8th Cir. 2000). In this case, Wal-Mart does not dispute that Bradley has an ADA-covered disability in that due to cerebral palsy, he is substantially limited in walking. Nor does the company dispute that Bradley suffered an adverse action in that he applied for and was denied employment as a greeter or cashier at the nearby Wal-Mart supercenter. Thus, the only disputed issues are whether Bradley was qualified for these positions and whether Wal-Mart refused to hire him because of his disability. Because there is sufficient evidence to support a finding the Bradley was qualified to be a greeter or cashier and that Wal-Mart rejected him because of his disability, the district court erred in granting Wal-Mart's motion for summary judgment. A. Ample Evidence Supports A Finding That Bradley Is Qualified To Be A Greeter Or Cashier. The district court erred in concluding that there is insufficient evidence to support a finding that, despite his disability-related limitations in standing and walking, Bradley is "qualified" to be a greeter or cashier within the meaning of the ADA. It is undisputed that these jobs require no experience or qualification. There is also evidence that Bradley has no substantial non-mobility- related limitations, and Wal-Mart expressly contemplates that wheelchair users can do these jobs. Moreover, EEOC's expert recommended various potential reasonable accommodations other than a normal wheelchair that would enable Bradley to do these jobs without standing for an entire shift. This evidence, viewed as a whole, is more than sufficient to support a finding that Bradley is "qualified" within the meaning of the ADA. Employers may not refuse to hire an individual with a disability, because of the disability, if he is "qualified" within the meaning of the ADA. An individual is "qualified" if he satisfies the "requisite skill, experience, education and other job-related requirements" and can "perform the essential functions" of the desired position with or without reasonable accommodation. 29 C.F.R. § 1630.2(m); 42 U.S.C. § 12111(8). See also Cravens, 214 F.3d at 1016 (two-fold inquiry). "Essential functions" are the "fundamental job duties" but not the "marginal functions" of a particular job. 29 C.F.R. § 1630.2(n); accord Canny v. Dr. Pepper/Seven-Up Bottling Group, 439 F.3d 894, 900 (8th Cir. 2006). This Court has held that the plaintiff must first make a "facial showing" that the disabled individual is "qualified." See Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 712 (8th Cir. 2003) (quoting Benson v. Northwest Airlines, 62 F.3d 1108, 1112 (8th Cir. 1995)). If the individual "cannot perform the essential functions . . . without an accommodation," however, the plaintiff "must only make a ‘facial showing that a reasonable accommodation is possible.'" See id. (quoting Benson, 62 F.3d at 1112) (emphasis in Fenney). The "‘burden of production'" then shifts to the employer to "‘show that it is unable to accommodate the [individual].'" Id. (quoting Benson, 62 F.3d at 1112). If the employer shows that the individual cannot do the job even with reasonable accommodation, the plaintiff must rebut that showing with evidence of his individual capabilities. Id. At that point, the plaintiff's burden "merges with [its] ultimate burden" of proving unlawful discrimination. See id. (citing Benson, 62 F.3d at 1113). Here, the claim is that Wal-Mart violated the ADA by refusing to hire Bradley as a cashier or greeter because of his disability. To meet its burden of showing, for summary judgment purposes, that Bradley is "qualified" for these positions, the Commission relied primarily on the testimony and reports of Vocational Rehabilitation Consultant Kent Jayne and Wal-Mart's expert Dr. Fevurly, as well as Bradley's own testimony. Initially, we note that, since Bradley's cerebral palsy mainly limits his mobility – the impairments to his hands and elbows do not substantially affect his manual dexterity (PA66(Fevurly Report 5)) – there is no real question that he can do essential functions unrelated to standing or walking. See PA219-20 (greeter job description), PA221-22 (cashier job description). Thus, for example, he can pick up small items such as coins off the floor, make change, and operate a handscanner to check prices and payment; he can also visually verify items such as customer identification, prices, payment and store signage (PA219-22). See, e.g., PA94(Jayne Decl.¶ 4) ("Bradley is independent in all activities of daily living including shopping, driving, self-care and housekeeping."); PA101(¶ 33) (can use handscanner for inventory control); PA65-66(Fevurly Report 4-5); cf. PA81(91)(Fevurly)(job requires picking up items off floor only infrequently). Indeed, Bradley attested that in previous jobs he has operated a cash register. See PA120 (Decl.¶¶ 28, 33). Furthermore, since Bradley is described as friendly, pleasant, articulate and cooperative (see, e.g., PA175(84)(Hicks); PA66(Fevurly Report 5) -– attributes that Daugherty considers "major" and "very important" (PA151-52(22, 29)), he would have no problem greeting and thanking customers, resolving their concerns and otherwise communicating effectively with customers and store personnel. Thus, the question boils down to whether Bradley can do mobility-related essential functions of these jobs. There is substantial evidence that he can. For the greeter job, these tasks include securing carts for shoppers and assisting with returns. PA219-20 (job description); see also PA101(Jayne Decl. ¶ 29) (emptying trash baskets). Dr. Fevurly stated that Bradley's upper body strength is "outstanding" (PA192(99-100)), and Bradley himself attested that he can operate his wheelchair with one hand, thereby freeing up his other hand for other tasks. See PA118(Decl.¶ 11). Alternatively, Jayne recommended, as possible accommodations, use of an electric scooter or similar mobility device, a hand-controlled miniature push-pull tug, and/or a sit-to-stand wheelchair. See, e.g., PA116-17 (Rebuttal Report 3-4). Witnesses observed employees using motorized wheelchairs working as greeters at other Wal-Mart stores. PA122-25. Based on this evidence, a jury could find that Bradley is qualified to do the essential functions of the greeter job. The essential functions of the cashier position include lifting, scanning, deactivating and bagging items of varying sizes. PA221-22 (job description). Bradley is strong and dexterous enough to do these tasks, but he would need to sit down for most or all of his shift. Although he worked as a cashier at Texaco by leaning against the counter, he left that job after one day because there was no way to sit down. See PA119-20(Decl.¶¶ 18-27) (no stool, work area was not wheelchair accessible). Bradley thus would need an accommodation that allows him to reach and lift – to pick up items for scanning and bagging – without relying exclusively on his crutches or the counter as support. After observing cashiers at work and measuring the workspace, Jayne recommended a sit-to- stand wheelchair, which would enable Bradley to be upright and, so, reach out horizontally. PA116(Rebuttal Report 3); PA91(95-97). He also recommended providing Bradley with a drafting- type high stool with armrests for additional balance, if needed, or a wheelchair narrow enough to fit into the checkstand area; removing several inches of the divider to the right of the checkstand to accommodate a regular or electric wheelchair; supplying Bradley with a handscanner to scan prices on large objects; and installing a convex mirror to enable him to spot items under shopping cart baskets. PA91-92(94-98); PA116-17(Rebuttal Report 3-4). See also PA108-09(Singh report, recommending device on seat that would allow Bradley to pivot while lifting and scanning items). Wal-Mart's argument that Bradley is not qualified rests primarily on the opinion of its expert. Dr. Fevurly concluded that Bradley is not qualified because, in his opinion, the jobs require more standing and walking that Bradley should do. See PA69 (Fevurly Report 8). He testified that Bradley would "have to be up on his feet" as a cashier and, while he could sometimes use a wheelchair as a greeter, he would still have to "get up and do tasks where he is standing probably somewhere between 25 and 40 percent of the time." PA78(77); accord PA67-68 (Fevurly Report 6-7)(jobs require "prolonged" or "frequent" standing). The underlying premise of his conclusions, therefore, is that both the greeter and cashier positions require substantial standing; neither can be done by someone in a wheelchair. This premise and the conclusions Dr. Fevurly based on it are flawed. In fact, there is abundant evidence that even Wal-Mart contemplates that individuals in wheelchairs can work as greeters and cashiers. Specifically, Daugherty testified that, with reasonable accommodation, wheelchair users can be cashiers (PA152(26-27)), and Hicks similarly testified that wheelchair users can be greeters (PA182(118)).<4> Indeed, Bradley testified that, after his interview, Hicks told him that he was best suited to be a greeter. PA121(Decl.¶ 42). Moreover, Wal-Mart's Resource Retention Guide ("RRG") suggests accommodations that might assist employees with mobility limitations; one illustration specifically involves a "Cashier who uses a wheelchair."<5> See PA230(RRG § 331, at 2). Moreover, several individuals with serious mobility limitations were observed working as greeters and cashiers at other Wal-Mart stores. See PA122 (female greeter using power wheelchair with joystick controls); PA123 (male greeter using motorized wheelchair); PA124-25 (female cashier using leg braces and walker, seated on chair at cash register). Based on this evidence, a jury could easily find that, even assuming Bradley needed to sit down or use a wheelchair while working, that would not disqualify him from either job, and Fevurly was simply wrong in assuming that it would. Indeed, Bradley is more versatile than many wheelchair users since, with crutches, he can stand, walk, climb stairs and get on or off a stool, albeit slowly.<6> In its December Order, the district court offered no explanation for its conclusory holding that the qualifications evidence was insufficient. See PA269 (stating without explanation that "Bradley failed to present evidence sufficient to create a genuine issue of material fact regarding whether he was qualified to perform the essential functions of the jobs for which he applied"). The court's August decision, however, suggests two possible explanations for its conclusion. First, at the time it issued its August decision, the court misunderstood the "confusing" medical evidence and erroneously believed that Bradley's cerebral palsy materially affected use of his hands. See PA268- 69(12/2005 Order); PA251-52(8/2005 Order) (merely because some people in wheelchairs can do job does not mean Bradley can do it since he "suffers from spastic diplegia in his hands"). If Bradley in fact could not use his hands normally, he might have trouble, for example, making change. As the court recognized on reconsideration, however, Bradley's manual dexterity is adequate and, even from his wheelchair, he can pick up small items such as coins off the floor. This reason, therefore, cannot serve as a basis for granting summary judgment to Wal-Mart. Second, the court stated that evidence that Bradley can move heavy items and bend easily to pick up items off the floor is unpersuasive because these "examples . . . are single tasks that are not sufficient to create an issue of fact for trial on Bradley's ability to perform the essential functions of the position for an entire shift using only his wheelchair." PA252(8/2005 Order) (discussing greeter job). This makes no sense. There is in fact no evidence that Bradley could not perform these functions "using only his wheelchair." Dr. Fevurly did conclude that Bradley could not do "repeated bending, dynamic pushing or pulling, ladder climbing, activities requiring balance, squatting, walking or standing of [sic] greater than 15 minutes nonstop" (PA68(Fevurly Report 7)) (citing FCA), but, even if true, that clearly refers to Bradley's movements while on crutches. Dr. Fevurly admitted that he had "never seen Bradley in a wheelchair" (PA79(79)), and the Functional Capacity Assessment test results expressly do "not include consideration of possible task modification or reasonable accommodation" such as "use of a wheelchair." PA71. In any event, there is no evidence that these actions are necessary to perform the essential functions of the cashier and greeter jobs. Cf. PA81(91) (Fevurly, doubting Bradley could repeatedly bend down with his crutches and pick up items off the floor but admitting he is unlikely to have to do that). Alternatively, if the question is one of stamina, the jury could consider the fact that Dr. Singh, Bradley's treating physician, described Bradley as "quite healthy" (PA106), and in the job he held when he applied to Wal-Mart, Bradley virtually never missed a day of work. See PA235-40 (Banta evaluations). Contrary to the court's decision, therefore, the evidence is sufficient to support a finding that Bradley is "qualified" within the meaning of the ADA to be a greeter or cashier, with or without accommodation. Therefore, the district court's grant of summary judgment to the defendant on this issue should be reversed. B. Ample Evidence Supports A Finding That Bradley Would Not Pose A Direct Threat Working As A Greeter Or Cashier. Wal-Mart also argued below that Bradley is not qualified because he would pose a "direct threat" if permitted to work as a greeter or cashier. See R.125, R.137. The district court did not address this argument but we anticipate that Wal-Mart will raise it as an alternative basis for affirmance. Because this argument is premised on the erroneous assumption that Bradley would use his crutches, rather than a wheelchair or other similar mobility device, if he were employed as a greeter or cashier, it cannot serve as a basis for affirming the grant of summary judgment. The ADA does not require an employer to hire an individual who, because of a disability, would pose a "direct threat" to the health or safety of himself or others in the workplace. A "direct threat" is defined as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r); see also 42 U.S.C. § 12111(3). Inclusion of the direct-threat provision in the ADA stems from the recognition in School Board of Nassau County v. Arline, 480 U.S. 273, 287 (1987), of "the importance of prohibiting discrimination against individuals with disabilities while protecting others from significant health and safety risks, resulting, for instance, from a contagious disease." Bragdon v. Abbott, 524 U.S. 624, 649 (1999). However, in light of the "prejudice, stereotypes, or unfounded fear" (Arline, 480 U.S. at 287) that surround many disabilities, the legal standard for establishing a direct threat defense is demanding. The key inquiry is not "whether a risk exists, but whether it is significant." Bragdon, 524 U.S. at 649. Thus, an employer such as Wal-Mart may not deny an employment opportunity to an individual with a disability merely because of a "speculative or remote" risk; there must instead be a "high probability" of "substantial harm." 29 C.F.R. § 1630.2(r); accord, e.g., Lovejoy-Wilson v. NOCO Fuels, 263 F.3d 208, 220 (2d Cir. 2001). Moreover, before excluding an individual from the workplace on the ground that he poses a "direct threat," the employer must conduct an "individualized assessment of [his] present ability to safely perform the essential functions of [his] job." Chevron USA v. Echazabal, 536 U.S. 73, 86 (2002). In making this assessment, an employer's subjective belief, even if maintained in good faith, does not relieve it of liability. Bragdon, 524 U.S. at 649. Rather, the determination must be based on a "‘reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence.'" Echazabal, 536 U.S. at 86 (quoting with approval 29 C.F.R. § 1630.2(r)). Factors relevant to this determination include "(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." See 29 C.F.R. § 1630.2(r)); Echazabal, 536 U.S. at 86. Finally, an individual can be considered a "direct threat" only if the identified significant risk "cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r). In evaluating a direct threat defense, therefore, courts should first consider whether the employer has shown that the employee cannot perform the job without a significant risk of substantial harm. If such a risk is posed, the court should then determine whether any reasonable accommodation would allow the individual to do the job without such a risk and without imposing undue hardship on the employer. See, e.g., Nunes v. Wal-Mart Stores, 164 F.3d 1243, 1248-49 (9th Cir. 1999) (noting that employer of sales associate subject to fainting spells did not consider at-work accommodations to reduce risks it feared). Applying those standards here, it is clear that Wal-Mart is not entitled to summary judgment on the ground that Bradley would pose a direct threat to himself or others if he were employed as either a greeter or a cashier. Wal-Mart's argument to the contrary rests primarily on the opinion of its expert, Dr. Fevurly. In opining that Bradley would pose a direct threat, Dr. Fevurly identified three main risks, all of which relate to Bradley's use of crutches. In his view, the "biggest risk" was that Bradley might slip and fall on a slippery spot on the floor. PA78(76); see also PA69(Fevurly Report 8). Second, because Bradley, on crutches, is "nearly twice the width of a normal person" without crutches, he would present an "obstacle" and someone might trip over one of his crutches. PA79(80); PA197(167); PA69(Fevurly Report 8). Third, standing for an entire shift would "place [Bradley] at great risk" for "recurrent back and knee pain" that would "make it difficult to tolerate these tasks" over time. PA70(Fevurly Report 9). Even if these risks would rise to the level of a "direct threat," however, they all assume that Bradley would rely on his crutches while working as a greeter or cashier. See, e.g., PA198(171) ("I'm talking about his having to stand and use crutches"); PA79(79) (doubting that Bradley would spend much time in a wheelchair, adding that he had "never seen him in a wheelchair"). This assumption is unfounded. Bradley routinely used his wheelchair while working at Banta. PA119(Decl.¶ 16). He also normally shops in his wheelchair (PA118(¶ 3)), and even did his Wal- Mart interview that way. PA181(115)(Hicks). He further testified that he left his job at Texaco because the work area was not wheelchair accessible. PA119(¶ 19). A jury could therefore find that Bradley would use his wheelchair or other similar device or, at a minimum, some sort of seat while working at Wal-Mart. There is no basis in the record for concluding that Bradley would pose a comparable risk, or any notable risk at all, if he were not performing his job on crutches. Dr. Fevurly admitted that Bradley would be "much less of a threat to himself and to coworkers" when he is not on crutches. PA80(85). Bradley is "stable" while sitting, so he would pose a decreased risk of falling in a wheelchair. PA78(77). Indeed, Bradley testified that the only time he has ever fallen out of his wheelchair was one time at a gym, playing basketball. PA118(Decl.¶¶ 5-6). Nor did Dr. Fevurly have "a huge problem" with Bradley using a motorized scooter or other similar device as long as he were careful. PA198(170); see also PA116(Jayne Rebuttal Report 3)(if Bradley used a wheelchair or electric scooter, he "would pose no greater danger than any customer in a wheelchair or electric scooter, both of which Wal-Mart provides to customers for use in their stores"). Bradley's treating physician, Dr. Singh, likewise opined that Bradley could do these jobs without injuring himself or others. PA106; PA109. In light of this evidence, a jury could find that Bradley would not pose a direct threat as a greeter or cashier if he could sit down for all or much of his shift. As discussed above, there is abundant evidence that Wal-Mart itself contemplates that these jobs can be done without standing. Wal-Mart argued below that, once the company came forward with expert medical evidence that Bradley posed a direct threat, the Commission was required, but failed, to rebut this evidence with its own medical evidence -- implicitly a medical expert.<7> R.125(SJ Suggestions 50-51); R.137- 1(SJ Reply 51-52). This argument misunderstands the evidentiary requirements for direct threat. Although the determination that an individual poses a direct threat must be based on "a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence" (29 C.F.R. § 1630.2(r)), that does not mean that in every case the parties need to hire medical experts. On the contrary, relevant evidence "may include input from the individual with a disability . . . and opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise in the disability involved and/or direct knowledge of the individual with the disability." 29 C.F.R. Pt. 1630, App. § 1630.2(r). Indeed, courts often rely on the opinion of the plaintiff's treating physician, for example, in determining whether he or she would pose a direct threat. See, e.g., Doebele v. Sprint/United Mgt Co., 342 F.3d 1117, 1134 (10th Cir. 2003); Branham v. Snow, 392 F.3d 896, 907-08 (7th Cir. 2004) Carter v. Casa Central, 849 F.2d 1048, 1053-54 (7th Cir. 1988). As Bradley's primary care physician for several years, Dr. Singh's views on whether Bradley's health and physical condition would permit him to work as a greeter or cashier were highly relevant. In addition, Kent Jayne is a vocational rehabilitation counselor, a Diplomate of the American Board of Vocational Experts who has practiced in the field of rehabilitation counseling and job analysis for over 17 years. PA93(Jayne Decl.¶ 1). A jury could find his views on reasonable accommodation, for example, helpful. There may, of course, be cases where the alleged risks and harms are so complex or hypertechnical that comparable technical expertise is needed. Compare Echazabal v. Chevron USA, 336 F.3d 1023 (9th Cir. 2003) (question of whether working in an oil refinery, around certain enzymes, could cause liver damage). This is not such a case. A jury could easily understand the asserted dangers – falling, tripping, wear and tear on the back or knees - as well as the essential job functions and proposed accommodations, without the assistance of a medical expert. Furthermore, Wal-Mart's medical evidence suffers from a fatal flaw – the assumption that Bradley would use crutches continually – which renders it irrelevant rather than simply medically incorrect. Wal-Mart also argued that the Commission, rather than the company, bore the burden of proof on this defense. R.125(SJ Suggestions 46). On the contrary, particularly under the circumstances here, that burden must fall squarely on Wal-Mart. Although the language of the direct threat defense provision is somewhat ambiguous, the placement of the provision within Title I, the legislative history and overall purpose of the statute all confirm that where as here an employer is attempting to use a direct threat defense to exclude an individual from the workplace based on disability, the employer must prove that the individual in fact would pose a direct threat and there is no adequate accommodation. Congress placed "direct threat" in a section of Title I entitled "Defenses," directly beneath the business-necessity defense which courts have required the employer, not the plaintiff, to prove. See 42 U.S.C. § 12113(a)-(b); see Belk v. Southwestern Bell Tel. Co., 194 F.3d 946, 951 (8th Cir. 1999) (analogizing to Title VII business-necessity defense). Significantly, in explaining the scope of the provision, the Supreme Court in Echazabal expressly described "direct threat" as an "affirmative defense," the same term it used for the business-necessity defense. Compare 536 U.S. at 81 (direct threat) with id. at 78 (business necessity); see also id. at 78, 79, 86, 87 (referring to "direct threat defense"). The term "affirmative defense" normally means that the defendant bears the burden of proof. See Howard v. Green, 555 F.2d 178, 181 (8th Cir. 1977) (res judicata is affirmative defense; defendant has burden of proof); cf. Fed.R.Civ.P.8(c) (requiring defendant to plead "affirmative defenses" such as res judicata). The legislative history also indicates that Congress intended the defendant to bear the burden of proving "direct threat." The House Judiciary Report states that an applicant who "is otherwise qualified" for a particular job "cannot be disqualified" on the basis of disability "unless the employer can demonstrate that the applicant's disability poses a direct threat to others in the workplace." H.R. Rep. No. 845(III), 101st Cong., 2d Sess. 46 (emphasis added), reprinted at 1990 U.S.C.C.A.N. 445, 469; cf. H.R. Rep. No. 485(II), 101 Cong., 2d Sess. 56-57 ("employer must identify the specific risk that the individual with a disability would pose"), reprinted at 1990 U.S.C.C.A.N. 303, 338-39 ("Labor Report"). Placing the burden of proving this defense on the employer also furthers the purpose of the provision as well as the overall statute. Key concerns of the ADA were the "historical isolation and segregation" of individuals with disabilities and "unequal treatment" "resulting from stereotypic assumptions not truly indicative" of the individual's abilities. 42 U.S.C. §§ 12101(a)(2) & (a)(7). To ensure that employment decisions are not based on "generalizations, misperceptions, ignorance, irrational fears, patronizing attitudes, or pernicious mythologies" (Labor Report at 56, 1990 U.S.C.C.A.N. at 338), employers must be required to prove that the risks they believe an individual poses because of a disability are both real and significant. In contrast, placing the burden on the plaintiff would require him to prove a negative -- that he is not a direct threat - something the law recognizes is difficult and, indeed, frowned on. See, e.g., United States v. Ollie, 442 F.3d 1135, 1343 (8th Cir. 2006) ("We understand that the law generally frowns on requiring a party to prove a negative."); Terra Indus. v. National Union Fire Ins. Co., 383 F.3d 754, 760 (8th Cir. 2004) (unreasonable to construe insurance contract to require party to prove a negative particularly where requisite information is not even necessarily within its knowledge). For all these reasons, it is the Commission's long-standing consistently-held position that the employer must bear the burden of proving direct threat. 29 C.F.R. Pt. 1630, App. § 1630.15(b). Moreover, while this Court has not resolved the issue (Stafne v. Unicare Homes, 266 F.3d 771, 775 (8th Cir. 2001)), three other circuits have agreed that the employer must prove direct threat. See Hutton v. Elf Atochem N. Am., 273 F.3d 884, 892 (9th Cir. 2001) (citing Nunes, 164 F.3d at 1247); Hargrave v. Vermont, 340 F.3d 27, 35 (2d Cir. 2003) (citing Lovejoy-Wilson, 263 F.3d at 220); Snow, 392 F.3d at 906-07; cf. Dadian v. Village of Wilmette, 269 F.3d 831, 840-42 (7th Cir. 2001) (holding that defendant bears burden under Title II, and noting that landlord bears burden on direct threat under Fair Housing Act); Stafne, 266 F.3d at 779-80 (Lay, J., dissenting) (discussing burden of proof issue). But see Moses v. American Nonwovens, 97 F.3d 446, 447 (11th Cir. 1996) (without discussion, placing burden of proof on plaintiff). As the Seventh Circuit explained, this interpretation "finds support in the plain wording of the statute and in common sense. The [employer] is certainly in the best position to furnish the court with a complete factual assessment of both the physical qualifications of the candidate and the demands of the position." Snow, 392 F.3d at 906 n.5. In arguing that the burden falls on the Commission, Wal-Mart cited McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004), cert. denied, 125 S. Ct. 2294 (2005). R.125(SJ Suggestions 46). In McKenzie, before being placed on long-term leave, a former police officer with post-traumatic stress disorder "recklessly" fired numerous shots into her father's grave. At trial, plaintiff's treating psychiatrist testified that there was "no way to identify when [plaintiff] might experience problems again," and the parties stipulated that "the occupation in question was ‘inherently dangerous.'" McKenzie, 388 F.3d at 1346, 1355. Without addressing Echazabal, the McKenzie Court held, "under these circumstances, . . . the district court did not err in instructing the jury that the burden rested on the plaintiff to prove that she did not pose a ‘direct threat' to others in the workplace." Id. at 1354 (emphasis added). McKenzie is inapposite; this case involves employment as a greeter or a cashier, neither of which can be characterized as an "inherently dangerous" job, nor is there any evidence that Bradley's disability causes unpredictable episodes of reckless behavior as McKenzie's did. Accordingly, this Court should hold that Wal-Mart has the burden of proving that Bradley would pose a direct threat if he were employed as a greeter or cashier. As the Snow Court explained, when the moving party will bear the burden of proof on an issue at trial, "that party must establish affirmatively the lack of sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party" in order to obtain summary judgment. 392 F.3d at 907 (citation omitted). Thus, to prevail on summary judgment on the ground that Bradley would pose a direct threat as either a greeter or cashier, Wal-Mart must show that "the evidence on the question of direct threat is so one-sided" that "no reasonable jury could find" for the Commission. See id.; Smith v. City of Des Moines, 99 F.3d at 1471 ("evidence that would entitle [movant] to a directed verdict if not controverted at trial"). The company clearly cannot meet that high threshold. Even if the Commission bore the burden of proof on the issue of direct threat, Wal-Mart would not be entitled to summary judgment on this ground. As noted, supra, at 36-37, there is sufficient evidence to support a finding that Bradley could perform the essential functions of the jobs at issue without posing a direct threat if he is offered the reasonable accommodation of working from a wheelchair or stool. C. Ample Evidence Supports A Finding That Wal-Mart's Proffered Reasons For Rejecting Bradley Are Unworthy Of Credence. The district court erroneously held that, even if there were sufficient evidence of qualifications, summary judgment was appropriate because the Commission "put forth absolutely no evidence from which a reasonable factfinder could infer that Wal-Mart's reasons for not hiring Bradley were a pretext for discrimination." PA271 (12/2005 Order). The court reached this conclusion by crediting the reasons Wal-Mart ultimately settled on and ignoring evidence that those reasons, along with the many other reasons Wal-Mart has offered at various times, were unworthy of credence. Viewing the evidence as a whole, a properly-instructed jury could find that all of Wal- Mart's proffered reasons were merely a cover-up for the fact that Bradley was denied employment because of his disability. Under the familiar McDonnell Douglas proof scheme, once an employer has presented evidence of a legitimate non-discriminatory reason for a challenged employment decision, the plaintiff is "entitled to an opportunity to show that the defendant's articulated reasons was in fact not the true reason for the employment decision and a pretext for discrimination." Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir. 1997) (citation omitted). A factfinder's disbelief of the employer's proffered reasons, particularly where "disbelief is accompanied by a suspicion of mendacity," permits an inference that the employer acted for a discriminatory motive. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000) (citing Hicks v. St. Mary's Honor Center, 509 U.S. 502, 511 (1993)). This is because "[p]roof 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. . . . [O]nce the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Id. (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); see also Maschka v. Genuine Parts Co., 122 F.3d 566, 571 (8th Cir. 1997) ("if the plaintiff offers evidence tending to show that the defendant's proffered reasons . . . were not the real reason, then the jury may decide the case, unless the ‘evidence of pretext' . . . is, standing alone, inconsistent with a reasonable inference of [] discrimination") (citation omitted). Any evidence casting doubt upon the credibility of the employer's proffered reasons may support a finding of pretext. See, e.g., Lynn v. Deaconess Med. Ctr, 160 F.3d 484, 489 (8th Cir. 1998) (evidence tending to show that reasons were "flimsy" and, so, "susceptible of disbelief"). Such evidence may include the shifting or inconsistent nature of the employer's proffered reasons. Kobrin v. University of Minn., 34 F.3d 698, 703 (8th Cir. 1994) ("Substantial changes over time in the employer's proffered reason for its employment decision support a finding of pretext."); accord Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1024 (8th Cir. 1998). See also, e.g., Dominguez-Cruz v. Suttle Caribe, 202 F.3d 424, 432 (1st Cir. 2000) ("[W]hen a company, at different times, gives different and arguably inconsistent explanations, a jury may infer that the articulated reasons are pretextual."). Also relevant is evidence that the employer treated the disabled individual less favorably than similarly-situated individuals without disabilities (see, e.g., Lynn, 160 F.3d at 488- 89 (Title VII), or that a proffered reason has no basis in fact (Smith v. Allen Health Sys., 302 F.3d 827, 834 (8th Cir. 2002), or is simply so implausible that it is unlikely to have motivated the employer (Hall v. NLRB, 941 F.2d 684, 688 (8th Cir. 1991)). See also Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) ("such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons"). In moving for summary judgment, Wal-Mart asserted that Personnel Manager Janet Daugherty made the decision to reject Bradley. In her affidavit, Daugherty stated that she based her decision on three factors: Bradley's "rather specific restrictions on available hours," "work experience" (which the court assumed meant job history), and "lack of work experience directly working with the general public or in retail operations." PA44(Aff.¶ 17). Although the district court chose to credit this version of events, a jury could discredit it for several reasons. First, there is evidence suggesting that Daugherty may not even have been the decisionmaker. Wal-Mart did not name a decisionmaker in its position statement during EEOC's investigation of Bradley's charge (see PA104-05); when Maxine Hicks was later interviewed, she offered reasons for what EEOC's investigator understood was "her decision," thus suggesting she was the decisionmaker (PA201). In her deposition, however, Hicks denied that she rejected Bradley. On the contrary, she testified that he "impressed" her in his interview, so she passed his application on for further processing. Moreover, contrary to what she said in her EEOC interview, Hicks testified in her deposition that she had "no idea" why Bradley was rejected. PA175(84-85). She thought he would be hired and could think of no reason why he was not eligible for employment. PA177-78(93-94). It was after Hicks' deposition that Daugherty came forward and testified that rejecting Bradley was her decision. PA150(11); PA44(Aff.¶ 17). Compare EEOC v. Sears, Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) (finding "curious" employer's failure to inform EEOC promptly of alleged decisionmaker's involvement since employer "must have known the importance of responding truthfully and completely to an EEOC discrimination charge"). Second, Wal-Mart's reasons for its decision have shifted over time, thus suggesting that the reasons are pretextual. See, e.g., Kobrin, 34 F.3d at 703. At one time or another during the investigation and litigation, Wal-Mart has offered at least eight reasons for its decision. By way of illustration, in its position statement, Wal-Mart explained that Bradley was rejected based on his "very limited availability" including "questionable weekend availability" and lack of "retail or register experience." PA105. In contrast, a few months later, when Hicks was interviewed during the investigation, she gave as the "primary reason" for Bradley's rejection his "unstable" work history – several different jobs for short periods of time; a "secondary factor" was "limits on his availability" in that weekends were "negotiable." PA201. Thus, Hicks' "primary reason" was not mentioned in the position statement, and Hicks never mentioned Bradley's alleged lack of relevant experience. Sharper differences are found within the testimony of Janet Daugherty, the putative decisionmaker. In contrast to the three conclusory reasons in her affidavit, Daugherty offered at least six detailed reasons in her deposition. Initially, she testified that her "main" reason was Bradley's job history – multiple jobs for less than a year and not listing all his jobs on his application. PA153(85). When shown his application listing two jobs, Ray County from 1995-97 and Banta Publications from 1998 on, she conceded that they did not support her explanation (PA157(99)). She asserted, however, that she knew, based on personal knowledge gained from living in the small town where the store is located, that Bradley had also held four unlisted jobs: at Texaco gas station, Shirkey's nursing home, Station Casino, and as a police dispatcher. PA153(85), PA155(90-91). When pressed, however, she backed off, admitting that she was "not sure" whether his employment at these places actually pre-dated her decision. PA156(94-95). Finally, she admitted that she was actually "not sure" whether this was a reason for her decision at all. Id.(95). In addition to job history, Daugherty cited Bradley's availability – not the schedule in his 2001 application but what she "remembered" from an earlier application. She conceded that she "would hire" based on the availability in his 2001 application; Bradley stated that he was available from 4:00 to 10:00 every evening including weekends. PA162(118-19); compare PA212 (Bradley's application). She explained, however, that, although she had not looked back at any earlier application before making her decision in 2001, she specifically "remembered" that a July 2000 application stated that weekends were "negotiable." PA163(123-24); compare PA204 (Bradley's 2000 application). Since Sunday was the "busiest time," Daugherty did not "have time to fool with somebody that's negotiable." Id. She "remembered" this detail, she said, even though she had seen that application only once, along with some 100 others, during a routine file review the previous fall. PA163(124), PA164(160). A jury could find implausible the idea that Daugherty would "remember" this detail from an application that, by her own admission, she had seen once six months earlier, particularly since she was in the middle of reviewing dozens of other applications, staffing the supercenter. A likelier explanation – which would also account for the appearance of the word "negotiable," or "questionable," in Hicks' interview and Wal-Mart's position statement to describe Bradley's weekend availability - is that, after it received Bradley's charge, Wal-Mart pulled his file, saw his July 2000 application and, perhaps overlooking the increased availability in his 2001 application, settled on "negotiable weekends" as a reason for his rejection. See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 359 (1995) ("employer could not have been motivated by knowledge it did not have"). In addition to job history and availability, Daugherty's deposition gives four other reasons for rejecting Bradley. These include (1) Daugherty's "opinion" that if Bradley kept his day job, as she assumed he would, a second job at Wal-Mart would be a "hardship" (PA162(119-21)); (2) her "remembering" that his 2000 (not 2001) application requested that his then-current employer not be contacted for a reference (PA163(124-25)); (3) her recollection that Bradley had made "problem" returns as a Wal-Mart customer (PA158-61(104-05, PA109-14)); and (4) her suspicion that Bradley was a shoplifter (PA161-62(114-18)). Nothing resembling these reasons appears in Daugherty's affidavit or, indeed, in any other Wal-Mart statement, nor did the company acknowledge these reasons in moving for summary judgment. If Daugherty refused to hire Bradley because she believed that working two jobs would be a "hardship" for him, it would suggest that she was patronizing him because of his disability. The application of Deborah West, who is not disabled, states that she was seeking part-time work in addition to her day job. PA217. She was hired. Furthermore, at her deposition, Daugherty never mentioned one of the three reasons listed in her affidavit – Bradley's alleged lack of relevant work experience. Throughout her deposition, she reiterated that she had listed all the reasons for her decision. PA157(99); PA158(102-03); PA163(125). Yet, her first mention of "experience" is in her subsequent affidavit; she does not attempt to explain this eleventh-hour addition to the lengthy list of reasons in her deposition. See PA44(Aff.¶ 17). The jury could infer from its late appearance that this is merely a post-hoc rationale, rather than a true explanation, for the decision. See Sears, 243 F.3d at 853. Not only did Wal-Mart keep changing reasons but there is evidence that the reasons themselves are factually inaccurate, highly implausible, or otherwise unlikely to have motivated the decision. See Young, 152 F.3d at 1024 (shifting reasons, with evidence casting doubt on reasons, strongly suggests discrimination). Regarding Bradley's availability, we have already discussed the implausibility that, amidst the chaos surrounding hiring for the supercenter, Daugherty would "remember" that Bradley's July 2000 application stated that weekends were "negotiable." Similarly implausible is the idea that a company eager for employees would reject an otherwise viable applicant based on such a "memory" without checking whether the memory was correct or whether Bradley's circumstances had changed. The same is true for the fact that Bradley's 2000 application requested that his then-current employer not be contacted for a reference. Any genuine concern that Bradley might be hiding something would have been removed by the fact that Bradley listed his supervisor as a reference on his 2001 application. As for whether Wal-Mart actually considered Bradley's availability unduly restricted, a jury could find that it did not. As noted above, Daugherty testified that she would have hired Bradley based on the availability in his 2001 application. PA162(118-19). Furthermore, there is evidence Wal-Mart hired applicants whose availability was no less restricted than Bradley's. The Commission proffered the applications of numerous people Wal-Mart hired despite limited availability. See generally R.131(Pl.Exh.19). It is true that many of these applicants were students, and Daugherty's affidavit asserts (without explanation) that she treats students' scheduling leniently. PA44(Aff.¶ 19); cf PA271-72 (12/2005 Order) (noting many applicants were students). However, that would not explain the decision to hire Deborah West, a non-student who specified inter alia that she was available only some evenings and never on Sundays – the "busiest time." See PA216 (West application). While West was seeking part-time work – a point the district court apparently considered (PA271(12/2005 Order)), that does not distinguish Bradley's application which states that he would accept part-time or full-time work. PA208, PA212. There is also evidence discrediting the expressed concerns about Bradley's job history. Although Hicks and Daugherty opined that Bradley went from job to job, his experiences before applying at Wal-Mart were to the contrary. His 2001 application listed two jobs, each lasting over a year (PA209), and Daugherty indicated this was acceptable. See PA157(99). She asserted, however, that she knew he had had four other jobs – at Shirkey's nursing home, at Station Casino, at a Texaco gas station where she actually saw him working, and as a police dispatcher. But Bradley worked at Shirkey's and as a police dispatcher after being rejected by Wal- Mart, so those jobs could have played no role in Wal-Mart's decision. See Patrick v. Ridge, 394 F.3d 311, 318 (5th Cir. 2004) (evidence of reason that could not have motivated employer when decision was made does not satisfy employer's articulation burden). Regarding Texaco, Bradley testified that he resigned after only one day because the work area was not wheelchair accessible. While Daugherty conceivably might have caught him on the one day he was there, the jury need not so find. Indeed, Daugherty conceded she was "not sure in all honesty" whether he worked there before or after she rejected his application. PA156(94-95). If she learned of his employment after making her decision, that knowledge would be irrelevant to Wal-Mart's motive for rejecting Bradley's application. See McKennon, 513 U.S. at 359; see also Sabree v. Local 33, 921 F.2d 396, 403-04 (1st Cir. 1990) (question is knowledge and motivation "at the moment" challenged decision was made) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989)). On the other hand, if the jury believed that she saw Bradley working at Texaco, since she did not testify she knew how short his tenure was, the jury could also infer that she knew Bradley had cashier experience. That would undermine Wal-Mart's explanation that he was rejected as lacking in cashier experience and belie Daugherty's attestation that she "give[s] favorable consideration to applicants with . . . cashier experience or prior experience on the job." PA44(Aff.¶ 21). As for Station Casino, Bradley testified that he never worked there but only took a course to learn to be a poker dealer. PA131(50); PA119(Decl.¶ 17). However, if the jury believed that Daugherty thought, albeit mistakenly, that Bradley worked as a poker dealer at Station Casino, she also arguably would have thought he had experience "working directly with the general public," something she attested that she considers favorably. Either way, Wal-Mart's reasons are impugned. Regarding whether Wal-Mart would have rejected Bradley for failing to list all his jobs on his application, the application of Donald Walker suggests that it would not. Walker (a non-student) filled in only parts of his application's employment history section. See PA214. While the contact information for one employer, Pioneer Container, is adequate, Walker did not identify the job he had, the dates, his supervisor, his pay or why he left, if he did. Id. He also referenced two other companies, likewise without dates or other data, but the information is so sketchy that Wal-Mart might be unable even to do a reference check. Id. The decision to hire Walker also undermines another reason – that experience made a difference. Walker's application does not identify a single job he ever had. PA213-15. He thus was hired despite not demonstrating any "work experience working directly with the general public or in retail operations". See also PA217 (West application, listing jobs as medical assistant and in office maintenance). Finally, regarding the remaining reasons – that Bradley made "problem" returns and was suspected of shoplifting - the jury could reject them out of hand. Not only did Wal-Mart never mention them in its summary judgment papers but it made no attempt to substantiate these accusations even though such evidence, if it exists, would be available from within the company. This is notable since the company went to the trouble of obtaining affidavits from Texaco (R.126(Def.Exh.F)) and Banta (R.126(Def.Exh.D(unsigned))) even though they had, at best, marginal relevance. In ruling that the Commission "put forth absolutely no evidence" of pretext (PA271 (12/2005 Order)), the district court uncritically credited Daugherty's affidavit and completely ignored Wal-Mart's shifting reasons as well as the other evidence that the proffered reasons were unworthy of belief. This was error. "When an employer has offered different explanations for an adverse employment action and when evidence has been presented that would allow a reasonable trier of fact to disbelieve each explanation, the trier of fact may reasonably infer that the employer is hiding something – that is, that the true explanation is unlawful discrimination." Young, 152 F.3d at 1024. In contrast, Wal-Mart's reply brief shrugs off the inconsistencies in Daugherty's testimony and denies that its reasons changed over time. The company noted, for example, that its position statement and Daugherty's affidavit both list Bradley's alleged lack of availability and previous retail or register experience as reasons for the decision. Wal-Mart did not, however, address the other reasons in Daugherty's summary judgment affidavit or explain the other reasons it had offered at various times. See R.137(Reply Brief 53). Remarkably, the company then asserted that the fact "some people" gave "additional reasons" for not hiring Bradley was "immaterial." See id. On the contrary, given the variety and sheer number of proffered reasons, a jury could easily find that Wal-Mart was simply making up reasons as the case progressed in an effort to hide the fact that its true reason for rejecting Bradley was his disability. The ADA is designed to bring disabled individuals "into the economic and social mainstream of American life." 42 U.S.C. § 12101(b). Employers thus may not deny employment to individuals such as Bradley who, despite a disability, are fully capable of doing the essential functions of a particular job, with or without accommodation. Cf. Labor Report at 71 (provisions "designed to assure that persons with disabilities are not excluded from job opportunities unless they are actually unable to do the job"), reprinted at 1990 U.S.C.C.A.N. at 353. Because the Commission's evidence amply supports a finding that Wal-Mart did exactly that, we urge this Court to hold that summary judgment was inappropriate. CONCLUSION For the foregoing reasons, the judgment below should be reversed and the case remanded to the district court for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,774 words, from the Statement of Jurisdiction, 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 monospaced typeface using Microsoft Word 2003 with Courier New 12-point font. Attorney for Equal Employment Opportunity Commission Dated: _________________________ ADDENDUM 8/2005 Order . . . . . . . . . . . . . . . . . . . . . . . . . 1 12/2005 Order. . . . . . . . . . . . . . . . . . . . . . . . . 15 Photographs of Some Proposed Accommodations o Manual Sit-to-Stand Wheelchair. . . . . . . . . . . . . . 27 o Compact-Easy Sit-to-Stand Wheelchair. . . . . . . . . . . 28 o Sundancer Electric Scooter. . . . . . . . . . . . . . . . 29 o No Boundaries Portable Electric Scooter . . . . . . . . . 30 o Might-E-Tug . . . . . . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing Brief of the Equal Employment Opportunity Commission As Appellant were sent this May 10, 2006, by first-class mail, postage prepaid, to: Denise M. Anderson ANDERSON LAW GROUP 110 West Ninth Street Kansas City, MO 64105 A courtesy copy was also e-mailed to counsel. ________________________________ Barbara L. Sloan ****************************************************************** <> <1> Because the depositions are in multi-page format, the brief cites the appendix page(s) followed by the applicable deposition page(s), in parentheses. Thus, here, the referenced information is found on appendix page 127, deposition pages 8-10. <2> According to Wal-Mart’s job descriptions, a greeter is required to greet and provide shopping carts to entering customers; thank departing customers; lift, deactivate and record missed items with assigned tools; pick up objects such as coins off the floor; direct customers to merchandise areas on the sales floor; resolve customer concerns; assist with returns and special needs requests; and communicate effectively with customers and other Wal-Mart personnel. Grade-school math, reading and writing are prerequisites. PA219-20. See also PA152(29) (Daugherty) (smile, give stickers to children). A cashier is required to lift, scan, deactivate and bag items of varying sizes; accurately make change; resolve customer concerns; pick up objects such as coins; change register printers; visually verify items such as customer identification, payment, prices and store signage; and communicate effectively with customers and other Wal-Mart personnel. Grade-school math, reading and writing are prerequisites. PA221-22. See also PA151(22)(Daugherty) (be polite and courteous). <3> Wal-Mart also offered the opinion of another expert who, like Dr. Fevurly, concluded that Bradley was qualified only for sedentary work and could not do any job at Wal-Mart. See generally R.126(Def.Exh.N (Dreiling Report)); R.131(Pl.Exh.13 (Dreiling Dep. excerpts)). <4> The district court mistakenly assumed that the Commission was arguing that this testimony, standing alone, establishes that Bradley can do the jobs in a wheelchair. PA251(11), PA253-54(13-14) (8/2005 Order). On the contrary, as noted in the text, there is ample additional evidence that these jobs can be done from a seated position and that, despite his disability, Bradley can do these jobs. <5> The RRG suggests modifying the counter height, widening the doorway, and assigning another associate or manager to assist cashiers in wheelchairs with lifting and bagging unusually heavy items. PA230(RRG § 331, at 2). <6> Dr. Fevurly also questioned whether Bradley could safely balance on a high stool and opined that he would be too slow getting on and off the stool to work efficiently. PA86(143-44) (problem “particularly if it has no handrails or arms”); PA669(Fevurly Report 8). Jayne addressed the balance issue by suggesting armrests, and, as noted above, a jury could find that Bradley would not often need to get off the stool. Significantly, the Functional Capacity Assessment specifies that Bradley demonstrated “good body mechanics” and the ability to “transition from sitting in a wheelchair to standing with crutch support safely for multiple position changes over the two days of testing.” PA75. <7> In Wal-Mart’s view, Dr. Singh could not be considered a qualified medical expert since he was not a specialist, and Jayne, as a vocational rehabilitation consultant, likewise cannot fill this void. See, e.g., R.125(SJ Suggestions at 50—51). <8> The First Circuit’s decision in EEOC v. Amego, 110 F.3d 135, 144 (1st Cir.1997), is distinguishable for similar reasons. In Amego, the court held that the plaintiff had the burden of proving that an individual whose mental disability had caused her to attempt suicide by drug overdose could safely perform a job which required her to administer drugs similar to those she had used in her suicide attempt. There is nothing in the record in this case to suggest that Bradley’s disability could threaten the health or safety of others by preventing him from performing a safety-related job function.