Table of Authorities

Cases Page(s)

Bailey v. Real Time Staffing Servs., Inc.,

543 F. App’x 520 (6th Cir. 2013)..................................... 12, 29

Chevron USA, Inc., v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984)................................................................. 14

Daugherty v. Sajar Plastics, Inc.,

544 F.3d 696 (6th Cir. 2008)........................................... 11, 26

Deister v. Auto Club Ins. Ass’n,

647 F. App’x 652 (6th Cir. 2016).............................. 10, 24, 25

Ferrari v. Ford Motor Co.,

826 F.3d 885 (6th Cir. 2016)........................................... 11, 30

Johnson v. Univ. Hosp. Physician Servs.,

617 F. App’x 487 (6th Cir. 2015)........................................... 30

Landreth v. C.I.R.,

859 F.2d 643 (9th Cir. 1988).................................................. 30

McNeill v. Wayne Cnty.,

300 F. App’x 358 (6th Cir. 2008).............................. 10, 21, 23

Neely v. Benchmark Family Servs.,

640 F. App’x 429 (6th Cir. 2016)................................... passim

Ne. Ohio Coal. for the Homeless v. Husted,

831 F.3d 686 (6th Cir. 2016).................................................. 30

Pena v. City of Flushing,

651 F. App’x 415 (6th Cir. 2016)........................................... 29

Simpson v. Vanderbilt Univ.,

359 F. App’x 562 (6th Cir. 2009).............................. 10, 21, 23

Summers v. Altarium Inst., Corp.,

740 F.3d 325 (4th Cir. 2014).................................................. 14

Sutton v. United Air Lines, Inc.,

527 U.S. 471 (1999).......................................................... 24, 26

Swanson v. Univ. of Cincinnati,

268 F.3d 307 (6th Cir. 2001).................................................. 17

Talley v. Family Dollar Stores of Ohio, Inc.,

542 F.3d 1099 (6th Cir. 2008)................................................ 11

Toyota Motor Mfg., Ky., Inc. v. Williams,

534 U.S. 184 (2002)................................................................. 23

Statutes

42 U.S.C. §§ 12101 et seq.................................................................... 1

42 U.S.C. § 12102(1)(A)....................................................... 13, 15, 21

42 U.S.C. § 12102(1)(C).................................................................... 13

42 U.S.C. § 12102(2)(A).................................................................... 14

42 U.S.C. § 12102(2)(B).............................................................. 14, 16

42 U.S.C. § 12102(3)(A).............................................................. 14, 27

42 U.S.C. § 12102(3)(B).................................................................... 14

42 U.S.C. § 12102(4)......................................................................... 14

42 U.S.C. § 12102(4)(A).............................................................. 13, 15

42 U.S.C. § 12102(4)(B).................................................................... 16

42 U.S.C. § 12102(4)(D).............................................................. 17, 24

42 U.S.C. § 12102(4)(E)(i)(I)............................................................. 17

42 U.S.C. § 12205a............................................................................ 14

ADA Amendments Act of 2008, Pub. L. No. 110-325,

122 Stat. 3553 (2008).............................................................. 12

- § 2(a)........................................................................................ 24

- § 2(a)(4).................................................................................... 26

- § 2(b)........................................................................................ 24

- § 2(b)(1).................................................................................... 12

- § 2(b)(3)............................................................................. 24, 16

- § 2(b)(5).................................................................................... 13

- § 2(b)(6).................................................................................... 14

- § 4............................................................................................. 14

- § 6............................................................................................. 14

Rules

Fed. R. App. P. 29(a)(2)....................................................................... 1

Regulations

29 C.F.R. § 1630.2(g)(3).................................................................... 28

29 C.F.R. § 1630.2(h)(1).................................................................... 16

29 C.F.R. § 1630.2(i)(1)(ii)................................................................ 16

29 C.F.R. § 1630.2(i)(2)..................................................................... 14

29 C.F.R. § 1630.2(j)(1)(i)................................................................. 17

29 C.F.R. § 1630.2(j)(1)(ii)................................................... 18, 21, 22

29 C.F.R. § 1630.2(j)(1)(iii)............................................................... 17

29 C.F.R. § 1630.2(j)(1)(iv)......................................................... 18, 21

29 C.F.R. § 1630.2(j)(1)(v).......................................................... 18, 22

29 C.F.R. § 1630.2(j)(1)(vi)............................................................... 17

29 C.F.R. § 1630.2(j)(1)(vii)........................................................ 17, 24

29 C.F.R. § 1630.2(j)(2)..................................................................... 27

29 C.F.R. § 1630.2(l)(1)..................................................................... 27

Other Authority

U.S. Department of Health and Human Services, National

Institute of Diabetes and Digestive and Kidney Diseases,

Adrenal Insufficiency & Addison’s Disease,

https://www.niddk.nih.gov/health-information/endocrine-

diseases/adrenal-insufficiency-addisons-disease

(last visited April 20, 2017).............................................................. 3

U.S. Department of Health and Human Services, National

Institute of Diabetes and Digestive and Kidney Diseases,

Hypothyroidism (Underactive Thyroid),

https://www.niddk.nih.gov/health-information/endocrine-

diseases/hypothyroidism (last visited April 20, 2017)................. 3

Statement of the Issues

1. Whether the district court relied on coverage standards inconsistent with Congress’ 2008 amendment of the ADA when it determined that Barlia’s medical condition did not constitute an actual disability.

2. Whether the district court relied on coverage standards inconsistent with Congress’ 2008 amendment of the ADA when it determined that her employer had not regarded Barlia as disabled.

Statement of the Case

A. Statement of Facts^{^[1]}

MWI Veterinary Supply, Inc. (“MWI”) is a distributor of animal health products. Order, R.45, PageID#1066. Julie Barlia began her employment with MWI in October 2008 as an Outside Sales Representative assigned to a sales territory in southeastern Michigan. Order, R.45, PageID#1066. Barlia was responsible for promoting and selling animal health products to veterinary care providers in her sales territory. Order, R.45, PageID#1066. Barlia reported to Terry Walsh, MWI’s Great Lakes Regional Sales Manager. Order, R.45, PageID#1066.

At all relevant times, and throughout her employment at MWI, Barlia suffered from medical conditions adversely affecting her endocrine system. Barlia deposition, R.42-3, PageID#751-52. In 2010, a physician determined that Barlia was suffering from a disorder relating to her adrenal system, a condition Barlia describes in her deposition as adrenal insufficiency or adrenal fatigue. Barlia deposition, R.39-3, PageID#423-24. Also around 2010, she was diagnosed with hypothyroidism/thyroid disorder by several different physicians. Barlia deposition, R.42-3, PageID#752.^{^[2]}

Barlia’s medical condition caused her to have lower energy and stamina than most people, which affected every aspect of her life. Barlia deposition, R.42-3, PageID#751. She testified that her medical condition also caused her to lose weight, and that she once experienced a dizzy spell that prevented her from driving (as described more fully infra at 6). Barlia deposition, R.42-3, PageID#750.

According to the district court, a portion of Barlia’s sealed medical evidence included a form completed by her physician in 2010. The court observed that the physician indicated on the form that Barlia “‘present[ed] [with] extreme fatigue, peripheral neuropathy, thyroid disorder and decreased mental clarity,’ . . . [and] was being given treatment ‘aimed at rebalancing thyroid and adrenal glands and addressing nutritional deficiencies to improve cognitive functioning and address physical symptoms.’” Order, R.45, PageID#1080-81. The court stated that the physician further opined that Barlia “would be unable to perform at least some of her job duties due to ‘[f]atigue and decreased mental clarity’” and that “her condition could ‘maybe’ involve episodic flare-ups with symptoms that would ‘prevent her ability to perform job duties.’” Order, R.45, PageID#1081.

From 2010 onward, Barlia and Walsh had multiple discussions about thyroid disease, as Walsh’s wife also has a thyroid disorder. Barlia deposition, R.43-2, PageID#743. Walsh would often “check in” with Barlia and discuss health issues, asking her how she “was feeling and how things were going.” Barlia deposition, R.43-2, PageID#743. Barlia stated that she told Walsh that “unfortunately, I think with adrenal issues and thyroid issues it’s something that you’ll have to manage[] for the rest of your life. It’s like having diabetes, maintenance.” Barlia deposition, R.43-2, PageID#743. Because of her medical condition, Barlia testified, she has “to maintain a very healthy lifestyle. I have to eat healthy and take good care of myself so that I am able to perform and go to work without fatigue, and that means following up with my doctors on regular visits and monitoring my thyroid medication.” Barlia deposition, R.43-2, PageID#750.

In her position as an Outside Sales Representative, Barlia was expected to achieve at least 95% of her sales goal each month, but her sales fell below the 95% requirement in the first three months of 2013. Order, R.45, PageID#1066. During this period, MWI realigned its Great Lakes Region’s sales territories and shifted some of Barlia’s accounts to another employee. Order, R.45, PageID#1067. To account for this change, Barlia’s annual sales goals were reduced by 5%. Order, R.45, PageID#1067. Nevertheless, Barlia failed to meet the 95% requirement in April, May, June, and September of 2013. Order, R.45, PageID#1067. In the subsequent fiscal year, Barlia continued to fall short of her monthly sales goals. Order, R.45, PageID#1068.

In mid-December 2013, Walsh rode along with Barlia for two days as she made her sales calls. Order, R.45, PageID#1068. During the second ride-along day, Barlia experienced dizziness, and Walsh—who was already aware of Barlia’s medical condition and symptoms—then drove for the remainder of the day. Barlia deposition, R.43-2, PageID#743; Walsh deposition, R.42-9, PageID#813-14.

In January 2014, Barlia emailed MWI’s human resources director, asking to be excused from attending an out-of-town sales meeting. Barlia email, R.39-4, PageID#447-48. Barlia told the HR director that she had “met with her doctor . . . regarding some symptoms that [she had] been experiencing, and he [was] recommending that [she] not travel at this time.” Barlia email, R.39-4, PageID#447. Barlia also provided MWI with a note from her physician stating that she had “experienced symptoms consistent with thyroid and hormonal imbalance” and had “lost weight[] consistent with these issues.” Physician’s note, R.39-4, PageID#449. The physician requested that “she not fly in an airplane or take trips outside this geographic area” as she was still “being evaluated and treated.” Physician’s note, R.39-4, PageID#449. The HR director informed Walsh of Barlia’s request. Email, R.39-17, PageID#574.

In April 2014, Walsh spoke to the HR director about Barlia’s failure to meet her sales goals and decided to put her on a performance improvement plan (“PIP”). Order, R.45, PageID#1070. In May 2014, MWI’s president and chief executive officer sent a company-wide e-mail stating that, in response to recent lower-than-expected financial results, MWI was planning to “implement significant expense-reduction measures.” Order, R.45, PageID#1071. Subsequently, MWI upper management asked Walsh and the other regional managers to identify one or two employees in each region to be considered for layoff, should MWI decide to implement a reduction in force. Order, R.45, PageID#1072. Walsh selected Barlia, explaining that she was the only employee in his region on a PIP, that she had “struggled with her sales over the course of a year and a half,” and that she had become “disengaged from [her] position” following the realignment of her sales territory. Order, R.45, PageID#1072. MWI then terminated Barlia as part of its reduction in force. Order, R.45, PageID#1072.

Barlia ultimately filed suit, alleging that MWI terminated her based on disability in violation of the ADA. Complaint, R.1, PageID#5-6.

B. District Court Decision

The district court granted MWI’s motion for summary judgment, ruling that Barlia could not establish that she was disabled under the ADA. Order, R.45, PageID#1076. The court first held, based on its examination of the medical evidence Barlia had filed under seal, that Barlia had failed to present sufficient evidence to show that she suffered from an impairment. Order, R.45, PageID#1077-83. The court recognized that the ADA had been amended to change the definition of “disability,” but found that the evidence nevertheless failed to meet the new standard. Order, R.45, PageID#1077-83. The court criticized the sufficiency of the sealed medical evidence, stating that “a plaintiff’s ‘bare assertions’ regarding a health condition or concern, ‘without any supporting medical evidence, cannot establish a “physical or mental impairment” within the meaning of the ADA.’” Order, R.45, PageID#1081 (citing Neely v. Benchmark Family Servs., 640 F. App’x 429, 433 (6th Cir. 2016) (unpubl.)). The court made no mention of Barlia’s deposition testimony about her adrenal fatigue/insufficiency and 2010 diagnosis of hypothyroidism/thyroid disorder, or the January 2014 physician’s note describing Barlia’s symptoms consistent with thyroid and hormonal imbalance. See Order, R.45, PageID#1077-83.

The court also concluded that the sealed evidence did not support Barlia’s assertion that her condition was episodic and disabling during flare-ups. Order, R.45, PageID#1082-83. While acknowledging that the amended ADA treats episodic conditions as disabilities if they substantially limit a major life activity when active, the court found no evidence indicating that the “symptoms” Barlia suffered in January 2014 were related to a medically-diagnosed condition. Order, R.45, PageID#1082-83. As support, the court characterized a recent unpublished Sixth Circuit decision as holding that “a past diagnosis of an ‘episodic’ condition does not establish a ‘disability’ under the ADA absent evidence that this condition ‘resulted in substantial limitation of [the plaintiff’s] major life activities’ at the time of the challenged adverse employment decision.” Order, R.45, PageID#1083 (citing Deister v. Auto Club Ins. Ass’n, 647 F. App’x 652, 655 n.1 (6th Cir. 2016) (unpubl.)).

The court next concluded that even if Barlia had established that she had an impairment, she had failed to present sufficient evidence that the impairment substantially limited her in any major life activity. Order, R.45, PageID#1083. The court again criticized the sealed evidence as not indicating that Barlia’s medical condition was substantially limiting. Order, R.45, PageID#1083-84. It also minimized the value of Barlia’s deposition testimony as to the limitations she experienced, stating that “a plaintiff’s ‘self-described symptoms,’ standing alone, ‘are insufficient to establish a substantial limitation on a major life activity.’” Order, R.45, PageID#1084-85 (quoting Neely, 640 F. App’x at 435; citing Simpson v. Vanderbilt Univ., 359 F. App’x 562, 567 (6th Cir. 2009) (unpubl.); McNeill v. Wayne Cnty., 300 F. App’x 358, 361-62 (6th Cir. 2008) (unpubl.)).

Turning to Barlia’s second coverage argument, the court ruled that Barlia had failed to show that MWI regarded her as disabled. Order, R.45, PageID#1085-86. After suggesting that Barlia may have waived the question of regarded-as coverage, the court nevertheless held that Barlia’s “suggested grounds for concluding that [MWI] regarded her as disabled do not pass muster under the pertinent case law.” Order, R.45, PageID#1085. Applying the pre-amendments ADA standards, the court stated, “Plaintiff must produce evidence of Defendant’s belief that she was incapable of performing the functions of her job, and she has not done so.” Order, R.45, PageID#1086 (citing Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1106 (6th Cir. 2008)). The fact that MWI excused her from the January 2014 sales meeting was not evidence that the company regarded her as disabled, the court held. Order, R.45, PageID#1086. “[T]his episode would suggest, at most, Defendant’s belief that Plaintiff was unable to perform a specific aspect of her particular job, and this falls well short of evidencing a belief that Plaintiff was substantially limited” in a major life activity. Order, R.45, PageID#1086 (citing Ferrari v. Ford Motor Co., 826 F.3d 885, 893-94 (6th Cir. 2016); Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 704 (6th Cir. 2008)).

Argument

In analyzing Barlia’s ADA claim, the district court failed to apply the standards for ADA coverage provided by Congress in its 2008 amendments of the ADA.

In 2008, Congress amended the ADA to broaden the coverage provided by the statute’s definition of “disability.” ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (“ADAAA”) (attached at Addendum A1-A7); see also, e.g., Bailey v. Real Time Staffing Servs., Inc., 543 F. App’x 520, 523 (6th Cir. 2013) (unpubl.) (same). Congress concluded that courts were defining “disability” too narrowly and as a result the statute, as applied, was not achieving its purpose of protecting individuals with disabilities from discrimination. In response, Congress amended the ADA “to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA.” ADAAA, at § 2(b)(1) (attached at Addendum A2) .

Post-amendment, the ADA continues to define “disability” to include in relevant part “a physical or mental impairment that substantially limits one or more major life activities of such individual,” 42 U.S.C. § 12102(1)(A) (“actual disability”) (attached at Addendum A10), and “being regarded as having such an impairment,” 42 U.S.C.

§ 12102(1)(C) (attached at Addendum A10). However, Congress altered the standards for each type of coverage.

First, because “courts had previously too heavily focused their inquiries on the question of coverage,” Congress specified that “the question of whether an individual’s impairment is a disability under the [post-amendment] ADA should not demand extensive analysis.” ADAAA at § 2(b)(5) (attached at Addendum A2). Instead, “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.” Id.

Second, because courts had “created an inappropriately high level of limitation necessary to obtain coverage under the ADA,” Congress specified that the definition of disability “shall be construed in favor of broad coverage of individuals.” 42 U.S.C. § 12102(4)(A) (attached at Addendum A10); see also 29 C.F.R. § 1630.2(i)(2) (new ADA coverage standards are “not . . . demanding”) (attached at Addendum A14).^{^[3]} As explained more fully below, to achieve this goal, Congress redefined several key terms, including “substantial limitation,” “major life activity,” and “being regarded as having such an impairment.” See ADAAA at § 4 (attached at Addendum A3-A4); 42 U.S.C.

§§ 12102(2)(A)-(B), (3)(A)-(B), (4) (attached at Addendum A10-A11); see also ADAAA at § 2(b)(6) (ordering EEOC to revise its regulations accordingly) (attached at Addendum A2). These new definitions greatly expand the scope of coverage provided by the statute.

In this case, Barlia argues that she is covered under the amended ADA both because she has an actual disability and because she was regarded as disabled, within the meaning of § 12102(1)(A) and (C). In its coverage analysis, the district court acknowledged that Congress had amended the ADA’s definition of disability to provide “‘broad coverage of individuals.’” Order, R.45, Page ID#1077 (quoting 42 U.S.C.

§ 12102(4)(A)). Despite this acknowledgment, however, the district court instead relied on outdated coverage standards that Congress explicitly rejected with the ADAAA. This was error.[4]

A. The district court incorrectly analyzed the question of whether Barlia has an actual disability by applying a legal standard inconsistent with the ADAAA.

The district court concluded that Barlia could not establish coverage under the first prong of the ADA’s definition of disability—that she had “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Order, R.45, PageID#1077-85; see also 42 U.S.C. § 12102(1)(A) (attached at Addendum A10). In reaching this conclusion, however, the district court analyzed the question in a manner inconsistent with the amended ADA, and also misinterpreted relevant Sixth Circuit authority. When examined under the proper standards, the evidence regarding Barlia’s medical condition—her deposition testimony, the January 2014 physician’s note, and the district court’s description of some of the sealed evidence—suggests that for summary judgment purposes she can establish that she is covered, by virtue of her actual disability, under

§ 12102(1)(A).

The statute and the Commission’s regulations now state that “a major life activity . . . includes the operation of a major bodily function, including but not limited to . . . endocrine” system function. 42 U.S.C.

§ 12102(2)(B) (attached at Addendum A10); see also 29 C.F.R.

§ 1630.2(i)(1)(ii) (same) (attached at Addendum A14). The Commission’s regulations further define a physical impairment to include “[a]ny physiological disorder or condition . . . affecting one or more body systems, such as . . . endocrine.” 29 C.F.R. § 1630.2(h)(1) (attached at Addendum A14).

The amended ADA also eases the standards for establishing whether an impairment constitutes a substantial limitation, providing that the “substantially limits” requirement “shall be interpreted consistently with the findings and purposes of the [ADAAA].” 42 U.S.C. § 12102(4)(B) (attached at Addendum A10-A11); see also 29 C.F.R.

§§ 1630.2(j)(1)(i) (phrase “substantially limits” is to be “construed broadly in terms of extensive coverage”) (attached at Addendum A15), 1630.2(j)(1)(iii) (question of substantial limitation “should not demand extensive analysis”) (attached at Addendum A15).

Unlike under the pre-amendment statute, “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as . . . medication.” 42 U.S.C. § 12102(4)(E)(i)(I) (attached at Addendum A11); see also 29 C.F.R. § 1630.2(j)(1)(vi) (same) (attached at Addendum A15); cf. Swanson v. Univ. of Cincinnati, 268 F.3d 307, 315 (6th Cir. 2001) (pre-ADAAA decision holding that mitigating measures “must be taken into account when judging whether that person is “substantially limited” in a major life activity’”). In addition, “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D) (attached at Addendum A11); see also 29 C.F.R.

§ 1630.2(j)(1)(vii) (same) (attached at Addendum A15).

The Commission’s post-amendment ADA regulations similarly provide that the term “substantially limits” “shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘substantially limits’ applied prior to the ADAAA.” 29 C.F.R. § 1630.2(j)(1)(iv) (attached at Addendum A15). Post-amendment, “[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii) (attached at Addendum A15). In addition, “[t]he comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.” 29 C.F.R.

§ 1630.2(j)(1)(v) (attached at Addendum A15).

In rejecting Barlia’s actual-disability coverage argument, however, the district court did not follow the statute’s new coverage standards. Instead, the court misapplied this Court’s post-amendment ADA case law, erroneously relying on inapplicable pre-amendment legal standards and disregarding evidence that Barlia was disabled.

With respect to the evidence, the district court mistakenly focused exclusively on the medical evidence filed under seal, ignoring Barlia’s deposition testimony and the January 2014 physician’s note. See Order, R.45, PageID#1077-83. In fact, that unsealed evidence is highly relevant, both alone and in combination with portions of the sealed evidence cited by the court, in assessing Barlia’s claim.

First, although the district court questioned whether Barlia even had an impairment, Order, R.45, PageID#1078-83, a jury could disagree. Barlia testified that she suffered from adrenal fatigue/ insufficiency and hypothyroidism/thyroid disorder, and had been identified by several physicians in or around 2010 as suffering from these endocrine system disorders. Barlia deposition, R.39-3, PageID#423-24; Barlia Deposition, R.42-3, PageID#751-52. She stated that these conditions caused her to have lower energy and stamina than most people, and that her reduced energy and stamina affected every aspect of her life. Barlia deposition, R.42-3, PageID#751. She also stated that in 2014 her medical condition caused her to lose weight and that she also experienced a dizzy spell severe enough to prevent her from driving. Barlia deposition, R.42-3, PageID#752.

Furthermore, the district court itself cited a physician’s statement that Barlia “‘present[ed] [with] extreme fatigue, peripheral neuropathy, thyroid disorder and decreased mental clarity,’” and was receiving “treatment ‘aimed at rebalancing thyroid and adrenal glands and addressing nutritional deficiencies to improve cognitive functioning and address physical symptoms.’” Order, R.45, PageID#1080-81. And in the January 2014 note, Barlia’s physician stated that she suffered symptoms consistent with thyroid and hormonal imbalance. Physician’s note, R.39-4, PageID#449. Under the ADA’s post-amendment, broadened definition of “impairment,” this evidence should be sufficient to establish that Barlia’s adrenal fatigue/insufficiency and hypothyroidism/thyroid disorder qualify as impairments that affect the major life activity of endocrine system functioning.

The district court also erred in failing to consider the unsealed evidence that supported Barlia’s argument that her impairments substantially limited her endocrine function. The testimony by Barlia as to the limitations she faces as a consequence of her endocrine system impairment, combined with the medical evidence cited above, should be sufficient to satisfy the amended ADA’s standard for showing substantial limitation.[5] See, e.g., Neely, 640 F. App’x at 434 (quoting 29 C.F.R. § 1630.2(j)(1)(iv)’s provision that “substantially limits” requires a lower degree of functional limitation post-ADAAA than it did before amendment).

In addition to ignoring this evidence that supports coverage for Barlia under § 12102(1)(A), the district court made a number of errors in its analysis of the sealed medical records. The court stated that “a plaintiff’s ‘self-described symptoms,’ standing alone, ‘are insufficient to establish a substantial limitation on a major life activity.’” Order, R.45, PageID#1085 (citing Neely, 640 F. App’x at 435; Simpson, 359 F. App’x at 567; McNeill, 300 F. App’x at 361-62). This is incorrect, and runs contrary to the Commission’s regulations. While establishing that an individual received a particular diagnosis of an impairment may require the presentation of medical evidence, establishing substantial limitation of a major life activity does not require such evidence.

The ADA regulations provide that “[a]n impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii) (attached at Addendum A15). The regulations further clarify that for purposes of determining whether an impairment substantially limits the individual in a major life activity, “[t]he comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.” 29 C.F.R. § 1630.2(j)(1)(v) (attached at Addendum A15).

Furthermore, the district court’s characterization of Neely is incorrect, as that decision did not establish a categorical rule precluding reliance on an ADA plaintiff’s testimony to establish substantial limitation. In Neely, the plaintiff claimed to suffer from sleep apnea, but medical testing had ruled out various physiological causes for his sleep problems and he had declined further testing. Neely, 640 F. App’x at 433-34. It was against this backdrop that in Neely this Court stated, “‘[w]hile a diagnosis might not be absolutely necessary [to establish a record of impairment], in this situation, some diagnosis must explain the duration or severity of the impairment.’ We therefore hold that Neely’s self-described symptoms to his physicians, without corroborating medical evidence or any diagnosis are insufficient to establish a substantial limitation on a major life activity.” Neely, 640 F. App’x at 435 (emphasis added). Accordingly, Neely does not stand for the proposition that an ADA plaintiff’s testimony about her condition is inadequate to establish substantial limitation—particularly under circumstances like those here, where there is evidence that Barlia was in fact professionally diagnosed with an impairment. See Barlia deposition, R.42-3, PageID#751-52 (attesting that she was diagnosed with hypothyroidism/thyroid disorder by a number of physicians).

The district court’s reliance on Simpson and McNeill was similarly mistaken, as these decisions utilized pre-amendment ADA coverage standards that Congress rejected with the ADAAA and that have no application to Barlia’s post-amendment coverage arguments. See Simpson, 359 F. App’x at 567 (relying on pre-amendment ADA coverage decisions, including Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)); McNeill, 300 F. App’x at 361-62 (relying on pre-amendment ADA coverage decisions, including Toyota and Sutton v. United Air Lines, 527 U.S. 471 (1999)); see also ADAAA at

§§ 2(a)-(b) (rejecting the ADA coverage standards described in Toyota and Sutton) (attached at Addendum A1-A2).

The district court further erred in concluding that “a past diagnosis of an ‘episodic’ condition does not establish a ‘disability’ under the ADA absent evidence that this condition ‘resulted in substantial limitation of [the plaintiff’s] major life activities’ at the time of the challenged adverse employment decision.” Order, R.45, PageID#1083 (citing Deister, 647 F. App’x at 655 n.1). The district court’s interpretation here is contradicted by the amended ADA’s command that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C.

§ 12102(4)(D) (emphasis added) (attached at Addendum A11); see also 29 C.F.R. § 1630.2(j)(1)(vii) (same) (attached at Addendum A15). As such, the amended ADA renders irrelevant for coverage purposes the question of whether a plaintiff with an episodic condition was experiencing a flare-up at the time of the adverse action.

The district court cited Deister for its contrary ruling, but that case stands for no such principle. Instead, in Deister this Court merely observed that there was no evidence that “earlier manifestations of the condition had been disabling . . . [or] that Deister’s condition resulted in substantial limitation of his major life activities . . . when he was terminated.” 647 F. App’x at 655 n.1. Accordingly, this Court held, the plaintiff had not shown that his episodic condition amounted to a disability for purposes of ADA coverage. Id.

B. The district court incorrectly analyzed the question of whether MWI regarded Barlia as disabled by applying a legal standard inconsistent with the ADAAA.

When the district court concluded that Barlia had failed to satisfy the post-amendment standard for establishing regarded-as coverage under 42 U.S.C. §§ 12102(1)(C) & 12102(3)(A), the court mistakenly relied on outdated pre-amendment authority. See Order, R.45, PageID#1085-86.

Prior to the ADAAA, to establish coverage under the “regarded-as” prong of the ADA’s definition of disability a plaintiff was required to show that “(1) a covered entity mistakenly believes that [she] has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.” Sutton, 527 U.S. at 489; see also, e.g., Daugherty, 544 F.3d at 704 (same). “In both cases, it is necessary that a covered entity entertain misperceptions about the individual—it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.” Sutton, 527 U.S. at 489; see also, e.g., Daugherty, 544 F.3d at 704 (same).

With the ADAAA, however, Congress rejected the Sutton standard for establishing regarded-as coverage. See ADAAA at §§ 2(a)(4) (finding that “the holdings of the Supreme Court in [Sutton] and its companion cases have narrowed the broad scope of protection intended to be offered by the ADA, thus eliminating protection for many individuals whom Congress intended to protect”) (attached at Addendum A1), 2(b)(3) (purpose of ADAAA included “reject[ing] the Supreme Court’s reasoning in [Sutton] with regard to coverage under the [regarded-as] prong of the definition of disability”) (attached at Addendum A2).

The definition for regarded-as coverage now provides that “[a]n individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

42 U.S.C. § 12102(3)(A) (emphasis added) (attached at Addendum A10); see also 29 C.F.R. §§ 1630.2(l)(1) (same) (attached at Addendum A17); 1620.2(j)(2) (“Whether an individual’s impairment ‘substantially limits’ a major life activity is not relevant to coverage under paragraph (g)(1)(iii) (the ‘regarded as’ prong) of this section.”) (attached at Addendum A15); Neely, 640 F. App’x at 435 (ADAAA “redefine[d] ‘regarded as having an impairment’ only to require that a defendant took a prohibited action based on a perceived impairment, regardless of whether the employer thought the impairment was substantially limiting.”). Thus, after Congress passed the ADAAA, to establish coverage under § 12102(3)(A) a plaintiff need only show that the employer took action against the individual because of an actual or perceived impairment. The level of perceived limitation is irrelevant.

Furthermore, and consistent with the amended ADA’s less stringent approach to questions of regarded-as coverage, the regulations explain that when “an individual is not challenging a covered entity’s failure to make reasonable accommodations and does not require a reasonable accommodation, it is generally unnecessary to proceed under the ‘actual disability’ . . . prong[] . . . . In these cases, the evaluation of coverage can be made solely under the ‘regarded as’ prong of the definition of disability.” 29 C.F.R. § 1630.2(g)(3) (attached at Addendum A14). Of course (and as was the case here), an individual “may [still] choose . . . to proceed under the ‘actual disability’ . . . prong” as well as the regarded-as prong. Id.

In deciding whether Barlia had established regarded-as coverage in this case, however, the district court neither mentioned nor followed the post-amendment standard for such coverage. Instead, the court engaged in the type of analysis that Congress rejected with the ADAAA. The district court focused on the level of limitation MWI perceived Barlia to suffer—whether the evidence showed that MWI believed that she was incapable of performing the functions of her job or that MWI believed she was substantially limited in the major life activity of working. Order, R.45, PageID#1085-86. That was error. Neither inquiry is appropriate under the ADA’s current standard for regarded-as coverage. The court should instead have inquired as to whether there was evidence that MWI took action against Barlia because of an actual or perceived impairment—plain and simple.

We respectfully note that there has been inconsistency among this Court’s post-ADAAA decisions addressing claims involving regarded-as coverage under § 12102(1)(C). In some such decisions, this Court has correctly recognized that with the ADAAA Congress “broadened the class of ADA-eligible persons” and introduced a “relaxed standard” for regarded-as coverage. Bailey, 543 F. App’x at 523; see also Pena v. City of Flushing, 651 F. App’x 415, 420 (6th Cir. 2016) (unpubl.) (citing Neely for the proposition that, post-amendment, ADA regarded-as coverage may be established “regardless of whether the employer thought the impairment was substantially limiting”); Neely, 640 F. App’x at 435.

However, in other post-ADAAA decisions addressing coverage under the regarded-as prong, this Court has continued to apply pre-ADAAA regarded-as coverage standards, without acknowledging the ADAAA or its alteration of the standard for regarded-as coverage. For example, in Ferrari, this Court did not mention the ADAAA and it applied a pre-ADAAA regarded-as coverage standard. 826 F.3d at 892-94. And in Johnson v. University Hospital Physician Services, 617 F. App’x 487, 491 (6th Cir. 2015), an unpublished decision, the panel likewise did not mention the ADAAA or the post-amendment coverage standards, and instead applied pre-amendment standards.[6]

This inconsistency among the circuit’s post-ADAAA regarded-as coverage jurisprudence may have contributed to the district court’s error here. In this case, the district court cited Ferrari and other decisions applying pre-amendment regarded-as coverage standards as authority supporting its analysis of Barlia’s claim. Order, R.45, PageID#1085-86. And while the district court also cited Neely, the court made no mention there of the ADAAA or Neely’s acknowledgment of the new regarded-as coverage standard. Order, R.45, PageID#1085-86. Because of this inconsistency in circuit precedent, it is particularly important that this Court clarify the correct coverage standard for regarded-as claims.

Conclusion

The Commission respectfully requests that this Court hold that the district court erred when it applied outdated ADA coverage standards to this case.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

BARBARA L. SLOAN

ELIZABETH E. THERAN

Acting Assistant General Counsels

/s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

E-mail: James.Tucker@EEOC.gov

Attorneys for amicus curiae

U.S. Equal Employment

Opportunity Commission

[1] Much of the evidence regarding Barlia’s medical condition was filed under seal in the district court and is not available to the Commission for review. See District Court Docket entry #44 (Barlia’s sealed exhibits). Accordingly, the factual statements in this brief regarding Barlia’s medical condition are based on the district court’s summary judgment order, Barlia’s deposition testimony, and one physician’s note from January 2014 that was not filed under seal.

[2] The U.S. Department of Health and Human Services’ National Institute of Diabetes and Digestive and Kidney Diseases describes adrenal insufficiency and hypothyroidism/thyroid disorder as conditions that adversely affect the endocrine system. Adrenal Insufficiency & Addison’s Disease, https://www.niddk.nih.gov/health-information/endocrine-diseases/adrenal-insufficiency-addisons-disease (last visited April 20, 2017); Hypothyroidism (Underactive Thyroid), https://www.niddk.nih.gov/health-information/endocrine-diseases/hypothyroidism (last visited April 20, 2017).

[3] Congress expressly authorized the Commission to issue regulations “implementing the definitions of disability in section 12102 of this title (including rules of construction).” ADAAA at § 6 (attached at Addendum A5-A6); 42 U.S.C. § 12205a (same) (attached at Addendum A12). See also Summers v. Altarium Inst., Corp., 740 F.3d 325, 331-33 (4th Cir. 2014) (affording full deference under Chevron USA, Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the Commission’s post-amendment ADA regulations regarding Congress’ revised definition of disability).

[4] The Commission does not express an opinion as to any other issue in this appeal.

[5] We note that while the district court stated that Barlia had argued that her medical condition “significantly limited her endocrine functions,” Order, R.45, PageID#1083-84, Barlia’s reference to this more-rigorous, pre-ADAAA standard for substantial limitation—and her implicit assertion that she satisfies that now-defunct standard—does not alter the fact that she was only required to satisfy the less restrictive post-amendment standard. See 29 C.F.R. § 1630.2(j)(1)(ii) (after the ADAAA, “[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting”).

[6] Ferrari is a published decision of this Court, and therefore normally is binding authority in the circuit. See Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 720 (6th Cir. 2016) (recognizing that “one panel may not disturb the ruling of a prior panel absent en banc review” and citing 6th Cir. R. 32.1(b) for the rule that “[p]ublished panel opinions are binding on later panels”). However, Ferrari’s failure to take the ADAAA into account should not preclude this Court from applying the correct ADA coverage standards. Husted recognized that “an intervening Supreme Court decision gives [a subsequent panel] the right to revisit [a] question.” 831 F.3d at 720. “This is true even in the unusual situation where binding circuit precedent overlooked earlier Supreme Court authority.” Id. (citations omitted). And while Husted speaks in terms of Supreme Court precedent, the exception logically should extend to situations such as this where a decision overlooks Congress’ amendment of a statute. Cf. Landreth v. C.I.R., 859 F.2d 643, 648 (9th Cir. 1988) (rule permitting panel to revisit circuit precedent in light of intervening Supreme Court authority is also applicable to intervening statutory amendments).

Such an approach makes particular sense here, where both parties in Ferrari relied on pre-ADAAA authority for their coverage arguments. The plaintiff made no mention of the 2008 amendments, and the defendant made only a passing mention in a footnote that unidentified amendments to the ADA did not change state disability law. See Ferrari v. Ford Motor Co., No. 15-1479, Docket Nos. 21, 27, 28 (6th Cir.) (parties’ briefs on appeal). Under those circumstances, where the parties had failed to alert the Court to the change in the governing law, the panel in Ferrari understandably relied upon the pre-ADAAA regarded-as coverage standard.