STATEMENT REGARDING ORAL ARGUMENT......................................... 1

STATEMENT OF JURISDICTION.................................................................. 1

STATEMENT OF THE ISSUES....................................................................... 2

STATEMENT OF THE CASE......................................................................... 2

A. Nature of the Case and Course of Proceedings........................................... 2

B. Statement of Facts.................................................................................... 3

Atkins’s Employment............................................................................ 3

The Charge.......................................................................................... 13

The Trial.............................................................................................. 13

Jury Instructions................................................................................... 15

Verdict................................................................................................ 15

C. District Court’s Post-Trial Decision......................................................... 16

STANDARD OF REVIEW............................................................................. 18

SUMMARY OF ARGUMENT........................................................................ 19

ARGUMENT.................................................................................................. 21

I. The district court correctly concluded that Atkins

fired a timely disability discrimination charge............................................. 21

II. Ample evidence supports the jury finding that Dolgencorp

violated the ADA by discriminating against Atkins

on the basis of disability............................................................................. 29

A. The jury reasonably found that Dolgencorp failed to provide

a reasonable accommodation for Atkins’s diabetes............................... 29

B. The jury reasonably found that Dolgencorp violated the ADA

by firing Atkins because of her disability.............................................. 38

a. Prima Facie Case............................................................................ 40

b. Conduct......................................................................................... 45

c. Omitted Jury Instructions................................................................. 50

d. Discriminatory Intent, Not Animus.................................................. 52

CONCLUSION............................................................................................... 60

CERTIFICATE OF COMPLIANCE................................................................ 61

CERTIFICATE OF SERVICE

ADDENDUM............................................................................................ App-1

TABLE OF AUTHORITIES

Cases Page(s)

Amini v. Oberlin College,

259 F.3d 493 (6th Cir. 2001).................................................................. 23, 33

Blazek v. City of Lakewood, Ohio,

576 F. App’x 512 (6th Cir. 2014).................................................................. 48

Brohm v. JH Properties,

149 F.3d 517 (6th Cir. 1998)........................................................................ 56

Calabotta v. Pibro Animal Health Corp.,

No.17-cv-03197, 2018 WL 813583 (C.D. Ill. Feb. 9, 2018)......................... 28

Cranpark, Inc. v. Rogers Group,

821 F.3d 723 (6th Cir. 2016)................................................................. 51-52

EEOC v. Commercial Office Products Co.,

486 U.S. 107 (1988).............................................................................. 22-28

EEOC v. Management Hospitality of Racine,

666 F.3d 422 (7th Cir. 2012) ................................................................... 36-37

EEOC v. New Breed Logistics,

783 F.3d 1057 (6th Cir. 2015)............................................................... 18-19

EEOC v. Roadway Express,

261 F.3d 634 (6th Cir. 2001)................................................................. 24-26

EEOC v. Yenkin-Majestic Paint Corp.,

112 F.3d 831 (6th Cir. 1997)...................................................................... 57

Ferrari v. Ford Motor Co.,

826 F.3d 885 (6th Cir. 2016)................................................................. 51, 53

Gamble v. Greater Cleveland Regional Transit Authority,

No.15-4208, 2017 WL 5135537 (6th Cir. June 2, 2017) (unpublished).... 55-56

Innes v. Howell Corp.,

76 F.3d 702 (6th Cir. 1996)................................................................... 50-51

Jackson v. VHS Detroit Receiving Hospital,

814 F.3d 769 (6th Cir. 2016)................................................................. 38, 43

Key v. Cincinnati Hamilton County Community Action Agency,

No.1:09-cv-139, 2011 WL 4543892

(S.D. Ohio June 28, 2011) (unpublished).................................................... 42

Kovacevich v. Kent State University,

224 F.3d 806 (6th Cir. 2000)........................................................... 40-41, 53

Kleiber v. Honda of America Manufacturing,

485 F.3d 862 (6th Cir. 2007)...................................................................... 30

Lafata v. Church of Christ Home for the Aged,

325 F. App’x 416 (6th Cir. 2009).......................................................... 30-31

Leeds v. Potter,

249 F. App’x 442 (6th Cir. 2007)................................................................ 31

Lewis v. Humboldt Acquisition Corp.,

681 F.3d 312 (6th Cir. 2012) (en banc)............................................ 48, 53, 56

Loulseged v. Akzo Nobel,

178 F.3d 731 (5th Cir. 1999)................................................................. 31, 34

Macy v. Hopkins County School Board of Education,

484 F.3d 357 (6th Cir. 2007),

abrogated in part by Lewis v. Humboldt Acquisition Corp.,

681 F.3d 312 (6th Cir. 2012) (en banc)....................................................... 48

McDaniel v. Wal-Mart Stores,

31 F. App’x 898 (6th Cir. 2002)............................................................ 40-43

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)............................................................................... 38-57

Mayers v. Campbell,

87 F. App’x 467 (6th Cir. 2003)................................................................. 23

Moher v. Chemfab Corp.,

959 F. Supp. 70 (D.N.H. 1997)................................................................... 28

Primm v. Tennessee Department of Human Services,

No.16-6837, 2017 U.S. App. LEXIS 15779

(6th Cir. Aug. 17, 2017) (unpublished).................................................. 54-56

Reeves v. Sanderson Plumbing Products,

530 U.S. 133 (2000)............................................................................... 52-54

Rembisz v. Lew,

830 F.3d 681 (6th Cir. 2016)...................................................................... 26

Roberts v. Hamer,

655 F.3d 578 (6th Cir. 2011)...................................................................... 19

Rosebrough v. Buckeye Valley High School,

690 F.3d 427 (6th Cir. 2012)..................................................................... 44

Smith v. Chrysler Corp.,

155 F.3d 799 (6th Cir. 1998)................................................................. 56-57

Talley v. Bravo Pitino Restaurant,

61 F.3d 1241 (6th Cir. 1995),

overruled in part by Gross v. FBL Fin. Servs., 557 U.S. 167 (2009)... 44, 56-57

Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981).............................................................................. 38-39

U.S. Airways v. Barnett,

535 U.S. 391 (2002)............................................................................. 30, 45

U.S. Postal Service v. Aikens,

460 U.S. 711 (1983).............................................................................. 40-41

Yarberry v. Gregg Appliances,

625 F. App’x 729 (6th Cir. 2015)............................................... 38, 44, 47-49

Statutes, Regulations, and Rules

28 U.S.C. § 1291........................................................................................... 1

28 U.S.C. §§ 1331......................................................................................... 1

28 U.S.C. §1343............................................................................................ 1

28 U.S.C. § 1345........................................................................................... 1

42 U.S.C. § 1977A(b)(1).............................................................................. 56

Title VII of the Civil Rights Act of 1964 (Title VII),

42 U.S.C. §§ 2000e et seq..................................................................... passim

42 U.S.C. § 2000e-5........................................................................... 1, 21-29

42 U.S.C. § 2000e-5(c)................................................................................ 21

42 U.S.C. § 2000e-12(a).............................................................................. 22

Title I of the Americans with Disabilities Act (“ADA”),

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

42 U.S.C. § 12111(3)................................................................................... 46

42 U.S.C. § 12111(10)................................................................................. 46

42 U.S.C. § 12112(a)................................................................................... 30

42 U.S.C. § 12112(b)(4)............................................................................... 55

42 U.S.C. § 12112(b)(5).................................................................... 30-46, 55

42 U.S.C. § 12116.................................................................................. 12, 22

42 U.S.C. § 12117(a)................................................................................... 12

29 C.F.R. § 1601.13............................................................................... 22, 25

29 C.F.R. § 1601.70(c)........................................................................... 22, 25

29 C.F.R. § 1601.80..................................................................................... 23

29 C.F.R. § 1630.2(o)(3).............................................................................. 30

29 U.S.C. pt. 1630 App. § 1630.4............................................................... 55

Other Authority

EEOC: The Americans with Disabilities Act: Applying Performance & Conduct

Standards to Employees with Disabilities, 2008 WL 4786697(2008)........ 46-48

EEOC: Enforcement Guidance on Reasonable Accommodation & Undue

Hardship Under the ADA, 2002 WL 31994335 (Oct. 17, 2002)........... 30,46-47

EEOC’s Federal Laws Prohibiting Job Discrimination Questions & Answers,

Part II, available at https://www/eeoc.gov/facts/qanda.html ............... 24-25, 26

EEOC: Time Limits for Filing a Charge,

available at www.eeoc.gov/employees/timeliness.cfm .................................. 25

American Diabetes Ass’n, Statistics about Diabetes,

available at http://www.diabetes.org/diabetes-basics/statistics ....................... 45

STATEMENT REGARDING ORAL ARGUMENT

EEOC questions the need for oral argument because the jury verdict is well-supported by the evidence and the district court’s legal rulings are correct. However, EEOC does not oppose oral argument to the extent it might assist the Court in understanding the argument and facts.

STATEMENT OF JURISDICTION

This appeal is from the denial of judgment as a matter of law following a jury verdict for EEOC and Intervenor Linda Atkins that Dollar General (“Dolgencorp”) violated Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., by failing to accommodate and terminating Atkins, a former employee with insulin-dependent diabetes. R.156, PageID#4041. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1345 and 42 U.S.C. §§ 2000e-5(b) and 12117(a).

Judgment was entered on September 23, 2016. R.149. The court issued a Memorandum, Opinion and Order resolving all post-judgment motions on September 28, 2017. R.219-220. Dolgencorp timely appealed. R.221. This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES [1]

1. Did the district court correctly conclude that Atkins’s ADA charge, filed with EEOC within 300 days of her termination, was timely, given that Tennessee prohibits disability discrimination?

2. Did the district court correctly conclude that the jury could reasonably have found that Dolgencorp violated the ADA by:

(a) Denying Atkins’s request for reasonable accommodation allowing her to keep and consume orange juice at the cash register if she experienced a hypoglycemic attack?

(b) Terminating Atkins for violating the “anti-grazing rule” by drinking a bottle of orange juice before paying for it, when experiencing hypoglycemia?

STATEMENT OF THE CASE

A. Nature of the Case and Course of Proceedings

EEOC brought this ADA enforcement action based on a charge filed by Linda Atkins, a former sales associate with Type II insulin-dependent diabetes. R.1. The suit alleges that Dolgencorp violated the ADA by failing to reasonably accommodate Atkins’s disability and terminating her because she admitted drinking a $1.69 bottle of orange juice that she then immediately paid for, when she felt her blood sugar dropping while working alone as a cashier. Id. Atkins intervened. R.12. After a four-day trial, the jury found for EEOC and Atkins on both claims and awarded backpay and compensatory damages. R.148, PageID##2481-82 (Verdict form); R.149, PageID#2583 (Judgment). The court denied Dolgencorp’s post-judgment motions and ordered ADA training for Dolgencorp employees. R.219, PageID#6298.

B. Statement of Facts[2]

Atkins’s Employment

Linda Atkins was diagnosed with Type II insulin-dependent diabetes in March 2009, when she was in her early 50s. Diabetes is a chronic, life-long condition caused by dysfunction of the endocrine system. R.151, PageID##2609-10, 2590-91. Without proper treatment, diabetes can cause serious consequences including loss of consciousness, blindness, and kidney failure. PageID##2603-04 (Thayer).

Under the care of Teresa Thayer, a family nurse practitioner, Atkins has learned to live with her diabetes. R.151, PageID#2652. She carefully monitors her blood-sugar levels and injects insulin several times a day. She has also adjusted her eating habits, explaining, “eating is 90% of it.” R.151, PageID#2644-46; R.154, PageID#3180.

Despite these efforts, Atkins struggles to keep her blood sugar steady. R.151, PageID#2656. Twice, Atkins ended up in the hospital with her blood sugar seriously out of control. PageID##2635, 2654, 3251. Not only food but also exercise — even a busy day at work — can affect these levels. PageID#2658. Because the brain functions on glucose (PageID#2615 (Thayer)), when her blood sugar drops, Atkins’s vision and thought processes are affected, she starts to shake, she feels clammy and begins to “really sweat”; if left untreated, she could pass out. R.151, PageID##2656-57; R.154, PageID#3180. While Thayer agreed that some people have “10 or 15 minutes” to treat their symptoms (R.151, PageID#2627), Atkins never does. R.154, PageID#3180. Through experience, Atkins has learned that she must act quickly when she begins experiencing symptoms: “if I wait” even to fix a sandwich, “it feels awful.” R.151, PageID#2667.

At trial, Thayer stated that an individual experiencing a hypoglycemic attack — that is, severe low blood sugar — should promptly ingest 15-20 grams of carbohydrates, or 100 calories of some kind of glucose. R.151, PageID##2616-19. Thayer agreed with defense counsel that any kind of glucose can work, including gels, peanut butter crackers, and glucose tablets. PageID##2616-20. She added, however, that “each person is different.” PageID#2630. Blood sugar levels may increase or decrease at faster or slower rates, and candy or orange juice may affect people differently. PageID##2629-30.

At first, when Atkins felt her blood sugar dropping, she ate candy. R.151, PageID#2960. She tried carrying wrapped candy in her back pocket, but when she sweat, the candy got crushed and melted, leaving her pocket wet and sticky. PageID#2657. She also realized that candy causes her blood sugar to spike — zooming from too low to too high. Id.; R.154, PageID#3160 (doctor agreed “no more straight sugar”). Thus, through trial and error, she discovered that all-natural orange juice (or honey) works best for her. Juice was “wonderful”— fast-acting, convenient, and easy to regulate the amount. R.151, PageID##2660-61. She preferred orange juice to honey because the honey comes in packets that do not “pour” or “squirt”; “you have to kind of stick your tongue in there and get it out.” R.154, PageID#3204. Atkins had never seen gels and could not imagine “cramming peanut butter crackers in [her] mouth” while working at the register. PageID#3299. At one point, Atkins bought a tube of glucose tablets. On reading the label, however, she realized that she would have to eat four or five of the Alka-Seltzer-like tablets to reach 15-20 grams. Deciding that they were “useless” to her, she left the tube in her car, unopened and forgotten, for several years. PageID##3174-75, 3207-08.

In 2009, Dolgencorp hired Atkins as a full-time sales associate. For most of her tenure, she worked in the Maryville, Tennessee, store. A hard worker, Atkins was highly respected and got along well with the manager, Wanda Shown, and most of her colleagues. R.154, PageID#3268. The exception was Tracy Choate. Atkins testified, and coworker Sandra Viefeld [now Hinojosa], confirmed, that the two women did not like each other. R.155, PageID#3759 (Atkins); PageID#3749 (Viefeld).

In March 2010, Dolgencorp promoted Atkins to lead sales associate (DApp’x:78-79 (DEx9 at DG_EEOC_000085-86: job description)), or “Third Key,” with authority to close the store, supervise though not discipline her coworkers, and open and lock the safe. R.151, PageID#2661. She usually worked the evening shift, from 2 to 10 p.m., with one other associate. R.154, PageID##3156-57. She and her coworker each got a one-hour meal break between 4:30 and 6:30 — rush hour. During her subordinate’s break, Atkins staffed the store alone. R.154, PageID#3162.

Because of her diabetes, Atkins brought a cooler to work, with orange juice and insulin. R.154, PageID#3200. She kept this cooler in the employee lounge, at the back of the store, some 90 feet from the cash register, which was near the front of the store. As long as other employees were around, when Atkins felt her blood sugar dropping, she drank juice from her cooler in the lounge. PageID##3171, 3162.

Retreating to the lounge was not possible, however, during the one hour each day when Atkins was working alone, and virtually anything she might do to treat a hypoglycemic attack would violate company policy. To prevent shoplifting, employees were prohibited from leaving the register or front of the store unattended, especially when customers were shopping or waiting to pay. R.154, PageID#3161 (Atkins). Assistant Manager Mary Jane Ray explained: “you have to get somebody to cover your area at all times if you’re running the register. There is no way to quickly run to the back.” R.151, PageID#2578.

In addition, the Personal Appearance Policy in the Standard Operating Procedures (“SOP”), available to management, prohibited employees from eating, drinking, and even chewing gum while working on the sales floor or at the register. DApp’x:72 (DEx6 at DG_EEOC_000103). Employee Relations Manager Jeri West (Dolgencorp’s corporate representative at trial) testified that this rule did not apply to items consumed for medical reasons (R.155, PageID#3669), but if so, employees, including Shown, did not know that. The version of the Personal Appearance Policy in the Employee Handbook addresses only the dress code, not the no-eating-and-drinking rule. DApp’x:62-64 (DEx3 at DG_EEOC_000068-70). Dolgencorp notes (Brief at 33) that a passage at the end of both versions of the Policy states, “Religious and/or disability-related exceptions may be permitted depending on the circumstances.” Compare DApp’x:72 (DEx6) (SOP) and DApp’x:64 (DEx3) (Handbook). However, in the Employee Handbook, the exception applies only to the dress code. DApp’x:64 (DEx3).

Dolgencorp also prohibited employees from keeping personal food and drink in company refrigerators and at the register. R.155, PageID#3597 (Irwin: no food/drink at register).

Finally, Dolgencorp prohibited employees from “grazing” — consuming company “product,” including orange juice, without — or before — paying for it; only a manager could ring up the sale. DApp’x:68-69 (DEx6 (SOP: Employee Purchase Policy)). Like the ban on eating and drinking at the register, this rule is not in the Employee Handbook. Instead, it was periodically discussed in weekly company flyers, called DGStars, that employees signed after reading. See, e.g., DApp’x:78 (DEx15: Grazing); DApp’x:79 (DEx16: Internal Theft). Although the flyers state violators were subject to discipline “up to and including termination” (id.), Dolgencorp’s witnesses testified that without exception offenders were fired after the first offense. R.155, PageID#3598 (Irwin); R.154, PageID#3373 (Strange). The company even offered employees rewards up to $1,000 for reporting coworkers suspected of grazing where the tip led to an admission of “theft.” DEx16 (Internal Theft). A closed-circuit camera allowed managers to monitor employee conduct. Id. While the company might discipline employees who violated the other rules, only the anti-grazing policy was one-strike-and-you’re-out.

The Employee Handbook briefly acknowledges Dolgencorp’s ADA obligation to provide “reasonable accommodation” to employees with disabilities; employees who believe they need accommodation to perform their jobs should “speak with [their] manager” or other personnel. DApp’x:57-58 (DEx3). Atkins thought “disability” meant mobility limitations; she did not realize diabetes could also be a “disability.” R.151, PageID#2683. And, like Store Manager Shown, Atkins did not know what a “reasonable accommodation” was. R.154, PageID#3185; cf. R.151, PageID##2577-78 (Ray: EEOC poster detailing rights was “mostly blocked” by boxes).

From the beginning, however, Atkins had openly discussed her diabetes with Shown, whose mother also had the disease. R.154, PageID#3158. Several times during these discussions, Atkins asked Shown if she could keep a bottle of juice at the cash register in case she had a hypoglycemic attack while working alone. R.154, PageID##3160-61.

As Ray confirmed, Shown immediately denied the request, saying it was “against company policy.” R.154, PageID##3160-61; R.151, PageID##2571-72 (Ray: overheard Shown denying Atkins’s requests to keep juice at the register to treat her diabetes). When Atkins asked what she should do instead, Shown suggested she “be careful of the cameras.” Id. Atkins testified that it had never occurred to her to consult any higher-level manager about her request; Shown was the “boss” and did not like people going over her head. R.154, PageID#3181, 3280; see also R.151, PageID#2585 (Ray: did not know you could ask District Manager for answers); R.155, PageID#3746 (Viefeld: if Wanda said no, “then it was no”).

On two occasions, in November 2011 and January 2012, Atkins experienced a hypoglycemic attack while working alone. Both times, a line of customers was waiting at the cash register. R.154, PageID#3164. Accordingly, Atkins grabbed a small bottle of orange juice from the nearby refrigerator, drank some, and, when her condition stabilized, she paid for the juice — $1.69 + tax — and finished ringing up the remaining customers in the line. She told Shown about the incident the next time they worked together; Shown did not discipline Atkins. R.154, PageID##3169-70. When asked why she did not save the receipts, Atkins explained, “I’m in a store with my blood sugar dropping. I’m doing everything I can to get it up with a store full of people and I’m [just] not thinking about keeping a receipt.” R.154, PageID#3215.

Dolgencorp considered the Maryville store a “high shrink” location. “Shrink” occurs when there is a discrepancy between inventory on the books and inventory on the shelves or accounted for through sales. R.155, PageID##3564-65 (Irwin). It could be caused by poor bookkeeping, shoplifting, or employee theft. PageID#3565.

On March 15, 2012, District Manager Scott Strange and Loss Prevention Manager Matthew Irwin visited the store to conduct an annual audit and interview employees about the shrinkage. The first two employees interviewed, Mark Beaver and Sandra Viefeld [Hinojosa], admitted drinking soda while standing in line to pay. Both were fired for violating the anti-grazing policy. R.155, PageID##3580-81 (Irwin).

The men then interviewed Atkins. Irwin informed her that she had been observed grazing on Little Debbie cakes. R.154, PageID#3177. “Confused,” Atkins denied this accusation, stating that she did “not even like Little Debbie cakes” (R.154, PageID#3177); “they taste like air.” PageID#3292. However, Atkins readily admitted taking orange juice before paying for it, explaining that she had done so twice because she was experiencing a hypoglycemic attack while working alone with a line of customers waiting to make purchases, and Shown, citing “company policy,” had denied her request to keep her own juice at the register. PageID##3176-78. Irwin indicated she might get “special permission” from HR to keep juice at the register, which he and Strange admitted would not be an undue hardship. R.155, PageID##3625-26 (Irwin); R.154, PageID#3330 (Strange). Irwin was unfamiliar with Dolgencorp’s policy but, in his experience at other employers, accommodations must be “written” and “through HR.” R.155, PageID##3618, 3601 (written). But see DApp’x:57-58 (DEx3 at DG_EEOC_00063-64: Dolgencorp’s policy: speak to a manager). Atkins responded that she had not heard about “special permission” but would contact HR promptly. R.154, PageID##3180-81.

Irwin asked her to write a statement documenting what she had said about the orange juice; at his request, she added the sentence: “To relieve this medical emergency, I have consumed product & then paid for it later.” PApp’x:86-87 (PEx1 (statement)); R.154, PageID##3181, 3224-25. Irwin’s notes refer to “food and beverage” (DApp’x:82 (DEx18)), but Atkins’s statement mentions only juice (and, at Irwin’s urging, “product”). Immediately thereafter, on Irwin’s recommendation, Strange told Atkins she was fired. “Shocked,” Atkins turned in her keys and left the store. R.154, PageID#3182.

Strange explained that Dolgencorp had to fire all three employees to be “consistent.” R.154, PageID#3313. He testified that the “only reason” for Atkins’s discharge was because she grazed on orange juice. R.154, PageID#3347(Strange); see also R.155, PageID##3625-26 (Irwin) (deposition agreed it was the reason).

The next day, a Friday, Atkins called Heather Robertson, then Regional Human Relations Manager, to ask that her record be cleared and to demand that Shown get training since she knew nothing about reasonable accommodation. Atkins explained that she had been accused of grazing on a Little Debbie cake but actually had consumed only orange juice because of a hypoglycemic attack. After letting Atkins talk and reviewing Irwin’s notes, Robertson concluded that Atkins had grazed on cake as well as juice. Nevertheless, she told Atkins she would speak to her boss. Atkins never heard back from her. R.154, PageID#3184.

On Monday, Atkins contacted Employee Relations Manager West. After Atkins told her the story, West indicated she could not help “because [Atkins] never asked for a reasonable accommodation.” R.154, PageID#3184-85. Like Robertson, West had access to Atkins’s statement as well as Irwin’s notes. She concluded that Atkins had consumed both cake and juice. West conceded, however, that the “mysterious” Little Debbie cake never “made sense.” Atkins clearly remembered the details of the orange juice but nothing about the cake; West also wondered why Atkins would take the cake when “all she needed was the orange juice.” Nevertheless, West insisted, Atkins said she had eaten a cake. R.155, PageID#3716-19.

Having exhausted her appeal options, Atkins found herself in her late fifties, unemployed, with a chronic disease, and an employment history reflecting a termination because of theft. R.154, PageID##3189, 3196 (accusation of theft “went to my core”).

The Charge

Atkins filed an administrative charge with EEOC, challenging her termination and Dolgencorp’s failure to accommodate her diabetes. R.129-8, PageID#2195 (charge). The charge was cross-filed with the Tennessee Human Rights Commission (“THRC”) pursuant to the worksharing agreement between EEOC and the THRC. Atkins signed the charge and forwarded a courtesy copy to Dolgencorp on August 24. EEOC recorded the charge on September 17, which was approximately 187 days after her discharge, well within the 300-day charge-filing period. R.130-3 & 4, PageID#2245 (EEOC-stamped letter), PageID##2246-47 (forwarding charge to Dolgencorp)).

The Trial

Trial took place in September 2016. In addition to Atkins, the jury heard from Nurse Thayer and several current and former employees: Ray, Viefeld, and Donna Kestler. Kestler testified that to accommodate a disability, she had requested a “buggy” to transport heavy loads, but Strange denied the request as against “company policy.” R.155, PageID#3730.

For the defense, Dolgencorp pointed out that Irwin and Strange both had disabilities (R.155, PageID#3560 (Irwin: diabetes)); (R.154, PageID##3359-60 (Strange: cancer, received accommodation)), and West had been accommodated after two accidents. R.155, PageID##3646-47. Irwin, Robertson, and West insisted that Atkins told them she had grazed on Little Debbie cakes; Irwin identified Choate and Shown as his sources for the Little Debbie rumor. PageID##3581-82. Irwin also acknowledged that Shown and Choate admitted they were not enforcing the anti-grazing policy but conceded that he never recommended disciplining them. R.155, PageID#3604; cf. R.154, PageID#3397 (Choate: not disciplined for letting Atkins graze). In addition, West opined that Atkins could have carried glucose tablets, candy, or honey packets in her pocket during the workday without violating any policy. R.155, PageID##3670-71.

Only Tracy Choate testified to having observed Atkins consume product before paying for it. She stated that “about every day” they worked together, at the end of her shift, Atkins would hand Choate one or more Little Debbie cake wrappers and pay for the cakes she had eaten earlier. R.154, PageID##3394-96 (adding that Choate told Shown about this grazing). No other witnesses saw Atkins graze. R.155, PageID#3750 (Viefeld); PageID#3735 (Kester); R.151, PageID#2576 (Ray).

Atkins described this story as “absolutely false”; as Third Key, it was her “job to enforce the rules.” R.155, PageID#3757. She stressed that she disliked Little Debbie cakes, her story had “never changed” (id.), and Choate “absolutely” could be lying since they had never gotten along. PageID#3771. She stated, “There is no reason I would go up to an employee and say, here, I grazed all this …. That would be like admission of a firing offense.” R.155, PageID#3757.

Jury Instructions

The jury was instructed on Plaintiffs’ two discrimination claims. On the failure-to-accommodate claim, the court explained the duty to provide a necessary reasonable accommodation and to engage in the interactive process. R.156, PageID##4020-22.

On the discriminatory discharge claim, the court explained the three-step burden-shifting method for proving discrimination indirectly. Because the case involves a conduct rule, the court also explained that the employer may discipline the employee whose disability caused the employee to violate the rule if, in light of relevant factors, the rule is job-related and enforcing the rule against the employee is consistent with business necessity. R.156, PageID##4025-26. At the jury instruction conference, while disagreeing with how the instruction was drafted, Dolgencorp “agree[d]” that “job-related and business necessity [are] kind of appropriate terms supported by Sixth Circuit law” when addressing the enforcement of workplace rules and policies. R.156, PageID#3889-90.

Verdict

The verdict form contained two questions on liability. (1) “Have the plaintiffs proven … that defendant discriminated against Ms. Atkins because of her disability by failing to provide her with a reasonable accommodation, in violation of the [ADA].” (2) “Have the plaintiffs proven … that defendant discriminated against Ms. Atkins by terminating her because of her disability, in violation of the [ADA].” R.148, PageID#2481. The jury answered yes to each question. R.156, PageID#4041. The jury awarded Atkins backpay and compensatory damages, but no punitive damages. R.156, PageID#4042.

C. District Court’s Post-Trial Decision

The district court issued a decision resolving all of the post-trial motions. R.219, PageID#6298. The court first briefly addressed Dolgencorp’s motion seeking reconsideration of the court’s earlier rulings that the 300-day charge-filing period applied to Atkins’s charge. R.219, PageID##6301-02. The court stated that it had “detailed, in two different opinions,” the rationale behind its interpretation of the charge-filing provisions, emphasizing that Dolgencorp’s interpretation has no caselaw support; conflicts with EEOC’s interpretation of the provision; and would have “complex implications for applicants, the EEOC and the courts.” It would also conflict with Supreme Court teaching that courts should construe the provision in a way that is “both easily understood by complainants and easily administered by the EEOC.” See generally R.66, PageID#1278; R.139, PageID#2456. The court stood by its earlier rejection of Dolgencorp’s argument that the 180-day limit should apply. R.219, PageID#6303.

Turning to the verdict, the court concluded that none of Dolgencorp’s arguments for reversal met the standard for judgment as a matter of law. R.219, PageID#6303. Regarding the reasonable-accommodation claim, the court concluded that even if Atkins had other viable “options” besides juice, a reasonable jury could find she did not know that exercising such options would not violate the Personal Appearance Policy. PageID##6304-05. If using honey or glucose tablets for medical purposes would not violate any policies, Dolgencorp should have engaged in the interactive process and discussed those options with Atkins. PageID#6306-10.

Regarding the discriminatory-discharge claim, the court concluded that the jury reasonably could have found that although Beaver and Viefeld, like Atkins, were fired for grazing, they were not proper comparators while Choate and Shown were proper comparators but were treated more favorably. R.219, PageID#6312-13 (citations omitted).

The court also rejected Dolgencorp’s arguments for a new trial based on alleged errors regarding intent in the jury instructions. R.219, PageID#6317-18 (noting standard of review). The court reasoned that the “ultimate question” in analyzing disparate treatment claims is whether discrimination is a ‘but-for’ cause of the employer’s adverse action.” Proof of animus is not determinative in all cases. PageID#6318-21; see also PageID##6321-23 (no error in omitting instruction on the business-judgment and honest-belief rules).

STANDARD OF REVIEW

This Court reviews de novo a decision denying a motion for judgment as a matter of law (“JMOL”). The Court applies the “same deferential standard” as the district court. EEOC v. New Breed Logistics, 783 F.3d 1057, 1065 (6th Cir. 2015). JMOL is improper unless, “viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could only find in favor of the moving party.” Id. (citation omitted). When reviewing the decision, the Court “may not weigh the evidence, pass on the credibility of witnesses, or substitute [its] judgment for that of the jury.” Id. (citation omitted).

The Court reviews jury instructions for abuse of discretion, assessing “whether, taken as a whole, the instructions adequately inform the jury of the relevant considerations and provide the jury with a sound basis in law with which to reach a conclusion.” Id. at 1074-75 (citation omitted). An abuse of discretion exists only “when the reviewing court is firmly convinced that a mistake has been made.” Id. at 1065. Faulty instructions “require reversal only if they are confusing, misleading, and prejudicial.” Id. at 1074-75. The Court reviews de novo the district court’s statutory interpretations. Roberts v. Hamer, 655 F.3d 578, 582 (6th Cir. 2011).

SUMMARY OF ARGUMENT

EEOC and Intervenor Atkins, who has diabetes, alleged that Dolgencorp violated the ADA by firing Atkins, a highly-respected employee, over a $1.69 bottle of orange juice that she took and drank — and then immediately paid for — to treat a hypoglycemic attack she experienced while working alone in the busy store. After hearing the parties’ evidence and arguments, the jury reasonably found for EEOC and Atkins on both claims: failure to accommodate and discriminatory discharge. The district court properly upheld the verdict.

Dolgencorp’s appeal addresses three main points, all meritless. First, Dolgencorp argues that the 180-day charge-filing period applies to Atkins’s charge, making it untimely. The district court, however, correctly held that Tennessee is a “deferral” state for ADA claims because it has a disability-discrimination statute and related enforcement agency. Thus, the 300-day period applies; Atkins’s charge, filed approximately 187 days post-discharge, was timely. The court correctly concluded that Dolgencorp’s argument — that timeliness turns on judicial interpretations of the deferral state’s statute, rather than its plain terms — would cause an administrative nightmare for federal claims and is irreconcilable with Supreme Court caselaw that Dolgencorp simply ignores.

Dolgencorp’s challenges to the reasonable-accommodation verdict are unavailing. Atkins’s supervisor summarily denied her requested accommodation — permission to keep juice at the register in case of a hypoglycemic attack while working alone — as against company policy. Any other treatment option would also violate some policy. Dolgencorp argued Atkins could permissibly keep and consume juice at the register for medical reasons. But, the court concluded, the jury could reasonably have found that even if true, no one told Atkins (or her supervisor), so the ADA required Dolgencorp to discuss these options with her.

Dolgencorp’s challenges to the discriminatory-discharge verdict are likewise unavailing. According to Dolgencorp, liability requires evidence the company “harbored” “disability-related animus” — dislike of disabled people or people with diabetes — but that is incorrect. Intentional discrimination, not animus, is the standard. Dolgencorp’s other arguments are equally meritless. Based on the record, the jury reasonably could have found that Dolgencorp intentionally discriminated against Atkins based on her disability.

ARGUMENT

I....... The district court correctly concluded that Atkins filed a timely disability discrimination charge.

Dolgencorp argues that Atkins’s ADA charge was untimely because it was not filed within 180 days of her termination. The district court correctly rejected this argument, concluding that Atkins properly relied on the 300-day limitations period because Tennessee is a “deferral” state for disability discrimination charges. The court’s interpretation of the relevant charge-filing provisions accords with applicable law. The ruling should be affirmed.

Individuals like Atkins who wish to challenge alleged disability discrimination must comply with Title VII’s charge-filing procedures, including the timeliness requirements, in 42 U.S.C. § 2000e-5, incorporated into the ADA by 42 U.S.C. § 12117(a). Section 2000e-5(e) specifies two limitations periods. The default rule requires charges to be filed within 180 days of the alleged “unlawful employment practice.” Id. In contrast, where — as is typically the case — the alleged “unlawful employment practice” occurred in a state or locality having its own anti-discrimination statute and an enforcement agency (“FEPA” or “deferral agency”) “with authority to grant or seek relief from such practice,” the individual has 300 days to file her charge. Id.; see also § 2000e-5(c).

Congress authorized EEOC to interpret and enforce these charge-filing provisions. 42 U.S.C. § 2000e-12(a) (Title VII); 42 U.S.C. §§ 12116-17 (ADA). In deciding whether and to what extent a state/local agency should be considered a FEPA under federal law, EEOC is guided by the plain terms of the applicable state/local discrimination statute. If, for example, the statute expressly “does not cover sex discrimination” or “nonprofit organizations,” EEOC would conclude the state/local agency was “without subject matter jurisdiction” over charges alleging sex discrimination or claims against nonprofit organizations because the agency lacks “authority to grant or seek relief” for such claims. Thus, charges alleging such claims — which are covered under federal law — would be timely only if “received by the Commission” within the 180-day period. 29 C.F.R. § 1601.13(a)(2).

However, EEOC does not look behind the face of the statute and related regulatory materials in designating a specific state/local agency to be a FEPA, or deferral agency. 29 C.F.R. §§ 1601.13(a)(2); 1601.70(c). Absent an express statutory exemption, EEOC considers the agency a FEPA for all purposes, and the 300-day charge-filing period applies to any alleged discriminatory conduct. See EEOC v. Commercial Office Prods., 486 U.S. 107, 123 (1988) (“words ‘authority to grant or seek relief’ refer merely to enabling legislation that establishes state or local agencies”). Moreover, in most cases, an applicable worksharing agreement between EEOC and the FEPA will specify that the agencies are agents of each other for charge-filing purposes, so a charge filed with either agency is considered “dual-filed” with the other.[3] Id. at 111-12.

This Court takes a similar approach, referring generally to states with an anti-discrimination statute and related enforcement agency as “deferral states” for purposes of each such statute. See, e.g., Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001) (300-day charge-filing period in “deferral state”).

Atkins’s discrimination claims arose in Tennessee. Because Tennessee has a disability-discrimination law, the Tennessee Disability Act, administered by an agency, the Tennessee Human Rights Commission (“THRC”), this Court has applied the 300-day limitations period to ADA charges. Mayers v. Campbell, 87 F. App’x 467, 471 (6th Cir. 2003). EEOC has designated the THRC a deferral agency (see 29 C.F.R. § 1601.80), and a worksharing agreement between the THRC and EEOC permits dual-filing of charges. R.38-1, Att.C, PageID#810-16 (agreement). Accordingly, the district court held, correctly, that Atkins satisfied the charge-filing requirements by filing her charge with EEOC within 300 days after her termination. See, e.g., R.66, PageID#1278 (order).

Dolgencorp urges reversal, arguing the 180-day period applies to Atkins’s charge. Atkins, the company notes, alleges that Dolgencorp failed to provide a reasonable accommodation for her diabetes. Although the Tennessee statute contains no express exception, Dolgencorp notes that lower courts (not the Tennessee Supreme Court) have construed the statute as not requiring reasonable accommodation. Accordingly, Dolgencorp argues, the THRC should not be considered a deferral agency for accommodation claims since failure to accommodate is not a cognizable “unlawful employment practice” in Tennessee, nor could the THRC “grant or seek” relief for such claims. And, Dolgencorp continues, because EEOC recorded Atkins’s charge approximately 187 days after her termination, it was untimely. Dolgencorp hinges this argument on the so-called “plain meaning” of two terms in § 2000e-5(e) —“unlawful employment practice” and “grant or seek relief.” Brief at 19-21.

Regarding the term “unlawful employment practice,” Dolgencorp argues that the term is unambiguous and should be construed narrowly to mean only “specific employment practices such as discriminatory hiring, promotion, discipline, or failure to accommodate, not” — as the district court concluded — “‘disability discrimination more generally.’” Brief at 21 (citing R.139, PageID##2452-53). Though lacking any direct support for this position, Dolgencorp cites EEOC v. Roadway Express, 261 F.3d 634, 639 (6th Cir. 2001), and EEOC’s Federal Laws Prohibiting Job Discrimination Questions & Answers, Part II (“EEOC’s Q&A”), available at https://www.eeoc.gov/facts/qanda.html, both of which, the company asserts, suggest that EEOC agrees with this interpretation. See Brief at 21-22.

Dolgencorp is mistaken. As noted above, when determining whether a state/local agency is a FEPA, EEOC interprets “unlawful employment practice” broadly to cover any employment-related discrimination not expressly excluded by the state/local statute and related regulatory materials. See 29 C.F.R. §§ 1601.13(a)(2), 1601.70. In fact, EEOC informs potential charging parties that while they generally must file a charge within “180 calendar days” of the alleged discriminatory act, “the 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis.” Time Limits for Filing a Charge, www.eeoc.gov/employees/timeliness.cfm. Because Congress authorized EEOC to interpret and administer these provisions, its interpretation is entitled to deference. Commercial Office Prods., 486 U.S. at 115-16.

Dolgencorp’s cited authority is not to the contrary. Roadway Express did not involve state/local statutes or the applicable limitations period. It was a subpoena enforcement action where EEOC was investigating a possible pattern of discriminatory hiring and promotion based on race and sex (see 261 F.3d at 638-39); a request for information about “illegal discrimination generally” would have been too indefinite. And EEOC’s Q & A does not limit “discriminatory practices” to hiring and firing, but also broadly includes “retaliation” and “employment decisions based on stereotypes ….” Dolgencorp does not explain why “illegal disability discrimination” is any less a “discriminatory practice” than “retaliation” or “employment decisions based on stereotypes.”

Turning to the term “authority to grant or seek relief,” Dolgencorp opines that because the Tennessee statute has been construed not to cover failure-to-accommodate claims, the THRC does not “have authority to grant or seek” relief for such claims. There being no “state and federal overlap” for such claims, Dolgencorp asserts, the 300-day limitations period does not apply. Brief at 19-21.

Dolgencorp cites no relevant authority for its position.[4] The matter is largely controlled by Commercial Office Products, 486 U.S. at 123-25. There, the employer argued that the 180-day limitations period applied to the charge because it was untimely under state law, and “in the absence of a timely filing under state law, a state agency lacks the requisite ‘authority to grant or seek relief.’” Id. at 122-23.

The Supreme Court easily disposed of that argument. The Court explained that Title VII, like other employment discrimination laws, “contains no express reference to timeliness under state law,” and the Court was disinclined to “import[]” such a “hurdle” into the federal scheme for two reasons. 486 U.S. at 124. First, Title VII “is a “remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.” The “importation of state limitations periods” would only “confuse lay complainants.” Id. (citations omitted). Second, the importation “would embroil the EEOC in complicated issues of state law” because to determine the timeliness of a charge filed between 180 and 300 days, EEOC “first would have to determine whether the charge had been timely filed under state law” — a question that often eludes easy answer. Id. “EEOC has neither the time nor the expertise to make such determinations under the varying laws of the many deferral States and has accordingly construed the extended 300-day period to be available regardless of the state filing.” Id. Because it “is both easily understood by complainants and easily administered by the EEOC,” the Court agreed that timeliness under state law did not matter.

That reasoning applies here. The judicially-created exemption for failure-to-accommodate claims is not apparent from the face of the Tennessee statute; § 2000e-5(e) contains “no express reference” to such interpretations; and importing one would only “confuse lay complainants.” Even assuming laypersons had read the Tennessee law, they could not be expected to delve into caselaw interpreting that statute — which may change from one day to the next — just to determine when to file a charge.

As importantly, the EEOC “has neither the time,” the “expertise,” nor the resources “to make such determinations under the varying laws of the many deferral States” (486 U.S. at 125). Since it is not even always clear what charging parties are complaining about, to determine timeliness, EEOC would have to untangle the allegations before unearthing the latest judicial interpretation of each applicable state or local law. As the district court recognized, that would be an administrative nightmare.

Remarkably, although the district court discussed Commercial Office Products in its second ruling (R.139, PageID##2451-52), Dolgencorp never mentions, let alone distinguishes, the decision. In contrast, two other district courts found Commercial Office Products persuasive and reached the same result as the district court did here. See Calabotta v. Pibro Animal Health Corp., No.17-cv-03197, 2018 WL 813583, at *3-4 (C.D. Ill. Feb. 9, 2018); Moher v. Chemfab Corp., 959 F. Supp. 70, 72 (D.N.H. 1997).[5]

Finally, Dolgencorp asserts that this entire case must be dismissed because “Plaintiffs’ only viable legal theory is premised on an alleged failure to accommodate.” Brief at 26. That is not correct. As discussed infra, the jury reasonably found, in the alternative, that Dolgencorp violated the ADA by terminating Atkins because of her disability. Dolgencorp does not deny that the 300-day limitations period applies to that claim. Accordingly, the Court should uphold the district court’s ruling that Atkins’s charge, filed approximately 187 days after her discharge, was timely.

II. Ample evidence supports the jury’s finding that Dolgencorp violated

the ADA by discriminating against Atkins on the basis of disability.

EEOC and Atkins presented the jury with two separate claims of disability discrimination. They argued that Dolgencorp violated the ADA by failing to provide a reasonable accommodation for Atkins’s disability and by firing Atkins because of her disability. After hearing the testimony, the jury found Dolgencorp liable for both claims. Dolgencorp disagrees with the verdict, but its arguments do not warrant reversal.

A. The jury reasonably found that Dolgencorp failed to provide

a reasonable accommodation for Atkins’s diabetes.

Dolgencorp argues that it was entitled to judgment as a matter of law on Plaintiffs’ claim that the company failed to provide Atkins a reasonable accommodation. Because the claim was amply supported by the evidence under applicable legal principles, the district court correctly rejected Dolgencorp’s argument.

The ADA prohibits discrimination against qualified individuals with disabilities and defines disability to include failing or refusing to provide a reasonable accommodation unless the accommodation would result in undue hardship. 42 U.S.C. §§ 12112(a), (b)(5). Of relevance here, a reasonable accommodation may include “adjustment or modification” of workplace “policies.” 42 U.S.C. § 12111(9)(B). Thus, to comply with the statute, an employer may have to create an exception to a disability-neutral rule to accommodate an employee’s disability. U.S. Airways v. Barnett, 535 U.S. 391, 397-98 (2002); see also EEOC: Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, 2002 WL 31994335, at *2 (Oct. 17, 2002) (goal of reasonable accommodation is to remove workplace barriers) (“Enforcement Guidance”).

Normally, an employee needing accommodation must make a request. Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 871 (6th Cir. 2007). Once she has done so, the employer ordinarily must “initiate an informal interactive process” to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Id. (“mandatory” duty); 29 C.F.R. § 1630.2(o)(3). Employers who fail to participate in the process “in good faith” face liability if accommodation would have been possible. Lafata v. Church of Christ Home for the Aged, 325 F. App’x 416, 422 (6th Cir. 2009). Occasionally, however, the appropriate accommodation may be so apparent that the employer may provide it without discussion. Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999).

Here, it is undisputed that when Atkins realized she might have a hypoglycemic attack while working alone at the store, she asked Shown, her manager, for what amounted to a reasonable accommodation — permission to keep orange juice at the register and to drink it if she felt her blood sugar dropping. That satisfied the ADA as well as Dolgencorp’s policy, triggering the interactive process. DApp’x:57-58 (DEx3) (“speak with a manager”); see Leeds v. Potter, 249 F. App’x 442, 449 (6th Cir. 2007) (employee need not use “magic words” including “accommodation” or “disability”).

It is also undisputed, however, that Dolgencorp neither engaged in the interactive process nor provided an accommodation. Shown, untrained in reasonable accommodations, summarily denied Atkins’s requests as “against company policy.” R.154, PageID#3160 (Atkins). And, indeed, Dolgencorp’s Personal Appearance Policy states that employees can be disciplined for eating or drinking at the register as can supervisors who allow such conduct (DApp’x:71-72 (DEx6); employees likewise should not keep food or drink at the register (R.155, PageID#3597 (Irwin)). Atkins therefore needed an accommodation — exemption from the policies — to treat her hypoglycemia. And while Shown’s actions in not disciplining Atkins for first taking and then immediately paying for juice in a medical emergency might otherwise be considered a reasonable accommodation, Dolgencorp eliminated that possibility by firing Atkins when the company learned of the arrangement. This conduct, the jury reasonably found, violated the ADA.

In urging reversal, Dolgencorp argues strenuously that no reasonable jury could find that Atkins needed an accommodation. Brief at 16, 32 n.3, 42-48, 58. According to Dolgencorp, Atkins did not need to drink juice because she had “numerous” “equally effective” “treatment options,” such as honey packets, peanut butter crackers, and glucose tablets, in case of a hypoglycemic attack, and these could fit in her pocket. Brief at 7, 16, 43-44.[6]

To the contrary, whether Dolgencorp’s proposed “treatment options,” which it never discussed with Atkins, were “equally effective” as orange juice was clearly a jury question. Dolgencorp could and did pitch its glucose-is-glucose argument to the jury (R.156, PageID##3975-76), but, based on the evidence, the jury did not have to agree.

Nurse Thayer, for example, noted that all people with diabetes are not the same; glucose may affect people differently. R.151, PageID##2629-30. Similarly, Atkins testified that all-natural orange juice works best for her; it is fast-acting, easy to regulate the amount, and “better for your body.” R.151, PageID#2662; R.154, PageID##3212-13. Wrapped candy fit in her pocket but was messy, especially when she sweat; more importantly, it caused her blood sugar to “spike up,” throwing “[her] body … from down there to up here (indicating).” R.151, PageID#2660. Honey packets were harder to use, and extracting the honey was unsightly, off-putting to customers. R.154, PageID#3204. Similarly, “talking to people and cramming peanut butter crackers into your mouth” at the register would be inappropriate and against store policy. R.154, PageID#3299. And contrary to Dolgencorp’s assertions, Atkins did not “keep” glucose tablets in her car; she threw an unopened tube into her car and forgot about it, concluding that the dosage and size made the tablets “useless” to her. Id. A jury could find that, even if they were otherwise equivalent, drinking juice was superior to chewing up four to five Alka-Seltzer-size tablets when time was of the essence. Viewed as a whole in a light most favorable to the verdict, this evidence strongly suggests that Atkins did not have numerous “equally effective” “treatment options” and did not just “prefer” orange juice but in fact needed it for her health.

In any event, as the district court recognized, Atkins’s problem was not just that she was prevented from keeping juice at the register; it was that consuming anything — including Dolgencorp’s favored options — at the register would, on its face, violate company policy. R.219, PageID##6306-07; R.154, PageID#3299 (Atkins). As with the anti-grazing policy, violating the Personal Appearance Policy is a terminable offense. DApp’x:71 (DEx6). The jury could have concluded that Atkins should not have had to violate company policy simply to avoid passing out while doing her job.

Even if the jury agreed with Dolgencorp’s assertion that appropriate accommodation was “obvious” (Brief at 44-45), the jury could reasonably have found, contrary to Dolgencorp’s argument, that the obvious and necessary “accommodation” was not to require Atkins to use Dolgencorp’s preferred treatment options but rather to allow her to violate one or more policies. Dolgencorp’s failure even to consider that accommodation could have persuaded the jury that the company violated the ADA.[7]

Dolgencorp asserts that keeping and drinking juice at the register for “medical reasons” would not violate company policy, citing West (R.155, PageID##3669-70); see also R.155, PageID#3626 (Irwin: OK to drink juice, no undue hardship to keep it at the register). The company also notes that the Personal Appearance Policy provides that “religious and/or disability-related exceptions may be permitted.” Brief at 45-47 (referencing DApp’x:64 (DEx3); DApp’x:72 (DEx6). This argument is specious.

The disability-related-exception provision was mentioned only once at trial. In response to Dolgencorp’s question, Atkins stated she had never seen it (R.154, PageID##3241-42), and no one else was asked. The jury could reasonably assume that none of the witnesses was aware of the provision. Significantly, only the dress code — not the no-eating-or-drinking rules — appears in the Employee Handbook version of the Personal Appearance Policy (DApp’x:71-72 (DEx3)); on its face, the provision there would at most permit “religious and/or disability-related” exceptions to the dress code. That would not help Atkins.

As for the testimony that eating and drinking at the register were permitted for medical reasons, the district court observed that Shown denied Atkins’s request despite a “medical emergency,” and neither woman knew of any way that Atkins could permissibly eat or drink at the register. Accordingly, the court reasoned, if the company already did allow employees to eat or drink at the register for medical reasons, Dolgencorp should have engaged in the interactive process to convey that information to Shown and Atkins. R.219, PageID#6310.

Dolgencorp objects to the court’s reasoning on two grounds. The company complains that whether Atkins “believed” that other “treatment options” would violate Dolgencorp’s policies “is not the test articulated in Johnson [v. Cleveland City School District, 443 F. App’x 974, 982-83 (6th Cir. 2011)]. The proper inquiry is whether ‘the employer failed to provide the necessary accommodation.’” Whatever she “believed,” Dolgencorp did not have to provide an accommodation because Atkins did not need one. Brief at 45-46.

That is incorrect. As discussed above, at a minimum, Atkins needed an exception allowing her to violate one or more policies by eating or drinking at the register in a medical emergency. Johnson does not excuse Dolgencorp from providing that accommodation.

The company also complains that the district court “improperly injected a theory never pursued by Plaintiffs at trial” when it held that the jury could reasonably find that Atkins believed the policy prohibited her from eating or drinking anything at the register. Brief at 46-47 (citing the Personal Appearance Policy ##6305-06; EEOC v. Mgmt. Hospitality of Racine, 666 F.3d 422 (7th Cir. 2012)). That is also incorrect. The theory was plainly presented to the jury. Atkins testified, for example, that “cramming peanut butter crackers into [her] mouth” at the register would violate company policy (R.154, PageID#3299), and Shown denied her request to keep orange juice at the register as “against company policy.” R.154, PageID##3160-61.

Dolgencorp’s reliance on Management Hospitality is inapt. Brief at 46. There, the district court ruled on an issue not presented to the jury on a ground not argued by either party. The appellate court found the error was “not harmless” because the employer had no opportunity to present contrary evidence. 666 F.3d at 442-43. Dolgencorp has not even suggested it suffered a similar harm. This was a jury question; the jury did not agree with Dolgencorp’s position.

Finally, EEOC finds this entire argument somewhat curious. Dolgencorp argued below that it could not engage in the interactive process because doing so would impermissibly require the company to assume the role of a “de facto healthcare provider,” opining on the viability of various diabetes treatments. R.219, PageID##6308-09 (Order: adding this misunderstands purpose of interactive process). Yet that is what Dolgencorp is doing here. Despite Atkins’s explanation for why she uses orange juice — it works better — Dolgencorp continues to insist she should have used honey packets, candy, or glucose tablets. Nurse Thayer is “fine” with Atkins’s decision to use juice. R.151, PageID#2630; R.154, PageID#3160 (doctor agreed). Consistent with Dolgencorp’s admitted lack of expertise on medical issues, the jury could reasonably find that those decisions were best left to Atkins and her healthcare providers.

B. The jury reasonably found that Dolgencorp violated the ADA by firing

Atkins because of her disability.

Dolgencorp argues that it is entitled to JMOL on the claim that the company violated the ADA by firing Akins because of her disability. As the district court concluded, however, the jury was properly instructed and evidence supports the liability finding. Dolgencorp’s arguments should be rejected.

In the absence of direct evidence, a discriminatory discharge claim is normally tried using the three-step burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-05 (1973). Under that framework, first, the plaintiff must establish a prima facie case by showing, for example, that she was disabled; the employer knew it; she was qualified for her job; she was terminated; and she was replaced, the job remained open, or similarly situated individuals were treated more favorably. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (Title VII); Jackson v. VHS Detroit Receiving Hosp., 814 F.3d 769, 776 (6th Cir. 2016); Yarberry v. Gregg Appliances, 625 F. App’x 729, 735 (6th Cir. 2015) (ADA). Establishment of a prima facie case creates a “presumption” that the employer unlawfully discriminated against the employee. Burdine, 450 U.S. at 254. If the jury believes the evidence, “and if the employer is silent in the face of the presumption, the [jury] must enter judgment for the plaintiff because no issue of fact remains in the case.” Id.

On the other hand, if the employer presents admissible evidence that it fired the plaintiff for legitimate nondiscriminatory reasons, and the jury believes the evidence, “the presumption of discrimination is rebutted,” and the burden shifts back to the plaintiff to persuade the jury that the proffered reasons are a pretext for discrimination. Id. at 255-56.

The district court here instructed the jury in accordance with that framework. R.156, PageID##4024-27. Dolgencorp argued that it fired Atkins lawfully because, like Viefeld and Beaver, she violated the anti-grazing policy. In contrast, EEOC and Atkins contended that Dolgencorp violated the ADA either because the anti-grazing rule, though otherwise valid, was not job-related and consistent with business necessity as applied to Atkins or because she violated the rule only because Dolgencorp had failed to provide a reasonable accommodation. R.156, PageID##4023-26.

In evaluating the claim, the jury heard evidence that the company knew Atkins had drunk the juice — grazed — because she had experienced a hypoglycemic attack while working alone and that she paid for the juice immediately, before serving the next customer in line, and promptly reported her conduct to Shown. R.154, PageID#3164. The jury also heard that Shown denied Atkins’s request for an accommodation — permission to keep juice at the register — that would have obviated her need to graze without causing undue hardship. R.154, PageID#3330; R.155, PageID##3625-26. The conduct occurred only twice. R.154, PageID#3164. The jury could also infer that firing Atkins did little to further the stated reason behind the one-strike-you’re-out policy — discouraging consumption without paying — since Atkins promptly paid. This evidence would support a finding for EEOC and Atkins on the claim.

In urging reversal, Dolrgencorp focuses on four main points: the McDonnell Douglas prima facie case, jury instructions on misconduct, omitted instructions, and the alleged lack of evidence of animus. See Brief at 27-41. None of these points have merit.

a. Prima facie case

Dolgencorp argues that there was insufficient evidence to support a finding on the fifth element of the prima facie case: that similarly-situated comparators were treated better than Atkins or she was replaced. Brief at 39-42. Ordinarily, once an employer has carried its burden at Step 2 of the McDonnell Douglas framework, whether the plaintiff properly made out a prima facie case (Step 1) is “no longer relevant.” U.S. Postal Serv. v. Aikens, 460 U.S. 711, 714 (1983); see also Kovacevich v. Kent State Univ., 224 F.3d 806, 822-25 (6th Cir. 2000) (noting prima facie case cannot be revisited after trial). The issue before the decisionmaker is whether the defendant intentionally discriminated against the plaintiff — “discrimination vel non.” Aikens, 460 U.S. at 714. Even aside from Aikens, however, Dolgencorp’s arguments are unavailing.

Regarding comparators, Dolgencorp argues that Viefeld, Beaver, and Atkins were similarly situated because all three were fired for violating the anti-grazing rule. Thus, Dolgencorp argues, EEOC and Atkins could not satisfy this element. In Dolgencorp’s opinion, “Differentiating comparators for the exact same behavior” — as the court allowed the jury to do — “based on ‘medical emergency’ in the ADA context swallows the rule and voids the comparator analysis altogether because the disabled plaintiff could frequently claim ‘medical emergency’ and differentiate themselves.” Brief at 40.

This argument improperly fails to view the evidence in the light most favorable to the verdict. In cases alleging discriminatory discipline, the question is whether a disabled employee and “the asserted similarly-situated non-disabled employee engaged in misconduct of comparable seriousness.” McDaniel v. Wal-Mart Stores, 31 F. App’x 898, 904 (6th Cir. 2002) (citations omitted). Where two employees violated the same policy, “the relevant question” is whether the actions were “roughly equivalent in culpability.” Id.

Here, the jury heard evidence that Atkins drank (and promptly paid for) juice to treat a hypoglycemic attack — a medical emergency — whereas Viefeld and Beaver had no such excuse; they just drank soda while waiting in line to pay. The jury could therefore reasonably have found that the three employees’ actions were not “roughly equivalent in culpability” (id.). And because they were not similarly situated, Dolgencorp should not have treated them the same. Dolgencorp’s cited case, Key v. Cincinnati Hamilton County Community Action Agency, No.1:09-cv-139, 2011 WL 4543892, at *10 (S.D. Ohio June 28, 2011) (unpublished) (Brief at 39), is uninformative. It holds, on the specific facts, that the plaintiff was similarly situated to his comparator because both were demoted back to their previous positions. Neither was disabled.

Dolgencorp also objects to the court’s conclusion that the jury could have found that Atkins was similarly situated to Shown and Choate but was treated dissimilarly. R.219, PageID#6313. According to Dolgencorp, Shown and Choate are not valid comparators because they were managers and merely failed to enforce the rule whereas Atkins actually grazed. Brief at 41.

The jury, however, could have disregarded this so-called manager distinction since Atkins, as Third Key, had management responsibilities including enforcing the anti-grazing rule. R.154, PageID#3757. Indeed, in that sense, she was more like Shown and Choate than Viefeld and Beaver, who were relatively new, low-level employees. And in deciding whether the misconduct was of “comparable seriousness” (McDaniels, 31 F. App’x at 94), the jury could consider, for example, “‘the severity of the differently treated employees’ actions’” and the “‘actual and potential consequences of the employee’s actions.’” See R.219, PageID##6312-13 (quoting Jackson, 814 F.3d at 777-78, 780 & n.4).

Applying that standard, the jury could find that Atkins technically violated the rule but only because she was experiencing a medical emergency and Dolgencorp had denied her request for reasonable accommodation. Because she immediately paid for the juice and informed Shown, the jury could have found the conduct not especially culpable. And Dolgencorp has not pointed to any apparent “consequences” for the company from her actions.

In contrast, Choate and Shown, who are not disabled, were duty-bound to enforce the policy. West admitted that managers who allow employees to graze violate the policy and can even “possibl[y]” be fired for that. R.155, PageID##3704-05. Yet, despite knowing that Shown and Choate were not enforcing the policy, Irwin never recommended reprimanding, let alone discharging, the women. R.155, PageID#3604; cf. R.154, PageID#3397 (Choate: not disciplined for letting Atkins graze). A jury, considering this evidence, could have found that the conduct of Choate and Shown was, at a minimum, of “comparable seriousness” and “culpability” to that of Atkins. By giving Choate and Shown a free pass, the jury could have found, the company treated similarly-situated non-disabled employees more favorably than Atkins.

In any event, the instructions allowed the jury to find the fifth element with evidence that Atkins was replaced. See, e.g., Talley v. Bravo Pitino Rest., 61 F.3d 1241, 1247 (6th Cir. 1995) (noting replacement and similarly situated are alternate ways of satisfying this element), overruled on other grounds, Gross v. FBL Fin. Servs., 557 U.S. 167 (2009). Contrary to Dolgencorp’s version of the evidence (Brief at 41), the record would allow the jury to infer she must have been replaced. The store had substantial turnover and, in defense counsel’s words, was “very leanly staffed.” PageID#3224 (Atkins: “a lot would come and go”); R.154; PageID#3740 (question to Kestler, “leanly staffed”). In addition, the jury was shown several DGStars flyers that employees were required to sign; all had four or six signatures. PApp’x:114 (DEx14 (four)); DApp’x:80 (DEx15 (six)); DApp’x:81 (DEx16 (four)). The jury also knew that Dolgencorp fired three employees including Atkins on March 15, and Atkins worked full-time. The jury could therefore find that the store would have had to hire replacements.

Dolgencorp asserts there is no evidence Atkins was replaced by someone with diabetes. Brief at 41. But consistent with the law and Dolgencorp’s proposed instruction (R.80, PageID#1431), the jury instruction required replacement, not replacement from outside the protected class. R.156, PageID#4024. See, e.g., Yarberry, 625 F. App’x at 735; Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 431 (6th Cir. 2012). Anyway, the jury could have inferred that any replacement did not have diabetes, as fewer than 10% of Americans have the disease. American Diabetes Ass’n, Statistics about Diabetes, available at http://www.diabetes.org/diabetes-basics/statistics. Furthermore, three management witnesses made a point of telling the jury about their disabilities or serious injuries. See R.155, PageID#3558 (Irwin: diabetes); R.155, PageID#3646-476 (West: bike accident, broken arm); R.154, PageID#3359 (Strange: cancer); see also R.156, PageID#3970 (stressing that discharge decision was “reached by a diabetic and a brain cancer survivor”). The jury reasonably could have inferred that, if Atkins’s replacement were disabled, Dolgencorp would have said so.

b. Conduct

EEOC agrees that Dolgencorp could lawfully fire Viefeld and Beaver for grazing. The only question was Atkins.

The ADA differs from Title VII in several major respects. Of relevance here, an employer may not always treat disabled employees just like nondisabled employees; the statute may instead require the employer “to treat an employee with a disability differently, i.e., preferentially.” Barnett, 535 U.S. at 397-98. And that may include allowing a disabled employee to violate a rule that other employees must obey. Id. at 398.

The language and structure of the ADA, including the affirmative defenses, confirm that employers must tolerate some forms of conduct from disabled employees that would be unacceptable from nondisabled employees. See e.g., 42 U.S.C. §§ 12112(b)(5) (reasonable accommodation requirement); 12111(3) (affirmative defense where conduct would create a “direct threat”); 12111(10) (affirmative defense where conduct would pose undue hardship). Thus, for example, absent undue hardship, an employer that normally prohibits employees from eating or drinking at their workstations would have to allow a diabetic employee to drink juice or eat candy as needed at her desk to avoid going into insulin shock. Enforcement Guidance, Q/A #24, 2002 WL 31994335, at *19-20.

To clarify how the statute works, EEOC promulgated guidance addressing conduct standards in the ADA context. See EEOC: The Americans with Disabilities Act: Applying Performance & Conduct Standards to Employees with Disabilities, Questions/Answers 8-9, 25 & nn.37-48, 84-85 (2008) (“Guidance”), 2008 WL 4786697, at *7-10, *25-26; Enforcement Guidance at Q/A ##19, 26, 2002 WL 31994335 at *7-10; see also 42 U.S.C. § 12116 (EEOC may interpret the statute). The Guidance explains that the ADA generally “gives employers wide latitude to develop and enforce conduct rules.” It also allows the employer to enforce those rules even against an employee whose disability caused her to violate the rule as long as application of the rule to the employee is job-related and consistent with business necessity. Guidance at Q/A #9. Rules against egregious or criminal conduct, for example, generally meet that standard; other rules may not be so clear and should be evaluated case by case. Factors relevant to that determination include the particular symptom(s) causing the conduct problem, the frequency of occurrences, the nature of the job, the specific conduct at issue, and the working environment. Id.

Describing the Guidance as “very persuasive authority in questions of statutory interpretation of the ADA,” this Court applied those factors in Yarberry. The plaintiff there, while suffering from a psychotic break, entered and locked himself into his workplace in the middle of the night, opened and deposited something in the safe, played with computer equipment, sent out increasingly incoherent emails to high-level management, and then left without setting the alarm. The Court found that, although a “close case,” on those “specific facts,” application of the company’s safety and security policies to the plaintiff was job-related and consistent with business necessity. 625 F. App’x at 739-40.

In contrast, here — where Atkins grazed only twice, because she was experiencing a precipitous drop in her blood sugar while working alone with customers waiting to pay; she paid for the juice as soon as her blood sugar stabilized and she finished assisting one customer; and she promptly informed Shown of her conduct — the court reasonably allowed the jury to resolve the job-related/business-necessity issue pursuant to instructions based on the Guidance and Yarberry. The decision does not conflict with this Court’s other caselaw.[8]

In urging reversal, Dolgencorp raises several objections to the misconduct instruction. None have merit.

Initially, the company questions EEOC’s interpretation of the ADA and “confus[ing]” use of the term “job-related and consistent with business necessity.” Brief at 35. Dolgencorp’s confusion is itself confusing. At the jury instruction conference, the company “agree[d]” that “job-related and business necessity [are] appropriate terms supported by Sixth Circuit law” when addressing the enforcement of workplace rules and policies. R.156, PageID#3889-90. And, as noted above, Yarberry found the Guidance “persuasive.” 625 F. App’x at 739.

Next, turning to Yarberry, which it describes dismissively as “unpublished” (Brief at 34), the company baldly asserts that Yarberry’s “use of the term ‘job-related and consistent with business necessity’ was used solely as an analytic tool to evaluate [the employer’s motivation].” It is unclear what that means. In fact, Yarberry applied the standard and concluded that application of the safety and security policies to Yarberry was consistent with business necessity under those specific facts. The court then went on to consider the rest of the McDonnell Douglas framework. 625 F. App’x at 740-41. That does not distinguish Yarberry from this case where the jury was also instructed to consider the rest of the framework if it found that application of the anti-grazing rule to Atkins on these specific facts was a business necessity. R.156, PageID##4025-26.

Alternatively or additionally, Dolgencorp argues that the jury instructions were flawed because they allowed the jury to find liability without finding “anti-disability animus.” As support, Dolgencorp extracts one sentence from the instructions on the McDonnell Douglas framework and underlines the fragment it thinks is helpful. Brief at 32-33. The full sentence instructs the jury that if it finds both that Dolgencorp fired Atkins for conduct caused by her disability and that enforcement of the anti-grazing rule was not “job-related” and “consistent with business necessity,” firing Atkins for violating the anti-grazing rule would not be a legitimate nondiscriminatory reason, requiring the jury to find for plaintiffs. R.156, PageID##4025-26.

This argument suggests the company misunderstands the three-step McDonnell Douglas framework. The quoted sentence, relating to Step 2, falls in the middle of those instructions, which also address the prima facie case, misconduct resulting from a failure to accommodate, and pretext. R.156, PageID##4024-27. Rather than a “non-existent, strict liability ‘hybrid’ discrimination claim under the ADA” (Brief at 31-32), this burden-shifting is textbook McDonnell Douglas. See discussion supra at 38-39. The jury instructions faithfully followed the McDonnell Douglas framework: the jury could reach Step 2 (legitimate nondiscriminatory reason) only if it had already found that EEOC and Atkins had proved the prima facie case (Step 1), raising a presumption of intentional discrimination.

In context and taken as a whole, the instructions adequately provided the jury with a sound basis in law with which to reach a verdict. New Breed, 783 F.3d at 1074.

c. Omitted Jury Instructions

Dolgencorp briefly argues that the court should have instructed the jury on the business-judgment and honest-belief rules. Brief at 37-39. This argument should be rejected.

Failure to give a proposed instruction is reversible error only if the omitted instruction is a correct statement of law, the instruction is not substantially covered by other delivered charges, and the failure to give the instruction impairs the requesting party’s theory of the case. R.219, PageID#6318; see also Innes v. Howell Corp., 76 F.3d 702, 713-14 (6th Cir. 1996) (requiring reversal only if instructions, viewed as a whole, were confusing, misleading, or prejudicial). Dolgencorp does not attempt to satisfy that standard.

The company’s proposed business-judgment rule read in part that “as a business, Dollar General is entitled to make business decisions for any reason, whether good or bad, so long as those decisions are not motivated by a factor that is illegal.” R.80, PageID#1430. Even assuming that is a correct statement of law, Dolgencorp offers no authority suggesting that the court was compelled to give the instruction; the instructions as a whole were confusing, misleading, or prejudicial; or the omission impaired the company’s theory of the case. R.219, PageID#6322. Indeed, giving the instruction might have “confused” or “misled” the jury. Because it would have applied to the whole case, the instruction easily could have indicated to the jury that Dolgencorp could lawfully opt against offering Atkins an accommodation if its decision was based, for example, on a business judgment that providing accommodations is too much trouble. That is not the law.

As for the honest-belief rule, Dolgencorp suggested in passing that the court give such an instruction but it admittedly submitted no proposed language. R.156, PageID#3910. Even the version stated in its Brief is incomplete. See Brief at 25 (omitting reasonable reliance requirement) (Ferrari v. Ford Motor Co., 826 F.3d 885, 896 (6th Cir. 2016)). Omitting the instruction should therefore be reviewed for plain error. See Cranpark, Inc. v. Rogers Group, 821 F.3d 723, 726-27 (6th Cir. 2016). Dolgencorp does not argue it meets the plain error standard.

Nor could it. According to Dolgencorp, a jury might have assumed the company mistakenly believed that Atkins grazed on Little Debbie cakes as well as orange juice. But the jury heard both decisionmakers say that Atkins was fired only for drinking juice. R.154, PageID#3347(Strange); R.155, PageID#3625-26(Irwin). Moreover, as the court below reasonably concluded, if it believed that Atkins’s termination hinged on Dolgencorp’s belief that she had consumed Little Debbie cakes, the jury would not have found her disability was a but-for cause of her termination. R.291, PageID#6323. And Dolgencorp could have argued this theory to the jury. That the company chose not to do so does not render the omission plain error.

d. Discriminatory Intent, Not Animus

Dolgencorp argues that the district court erred in sending the discharge claim to the jury because no evidence showed the company “was motivated” by “anti-disability animus” and, Dolgencorp asserts, such animus is necessary for liability. See Brief at 27-42. Dolgencorp is mistaken.

The “ultimate question” in a discriminatory discharge claim is “whether the plaintiff was a victim of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 153 (2000). Plaintiffs may prove that fact directly, with explicit evidence the employer relied on plaintiff’s disability in its decisionmaking, or, more commonly, indirectly, with the McDonnell Douglas framework. See Ferrari, 826 F.3d at 891-92. Under the indirect method, the plaintiff normally does not need “additional independent evidence of discrimination” but can rely on the prima facie case and proof the employer’s proffered reason for the discharge is pretextual. Reeves, 530 U.S. at 149. Once the claim has been tried, however, the only question is whether the employer “intentionally discriminated against the plaintiff.” Kovacevich, 224 F.3d at 823.

Here, based on the record, the jury could (and did) find that Atkins was a victim of intentional discrimination. The court correctly instructed the jury that the claim required proof that Atkins would not have been fired but for her disability. R.219, PageID#6319 (citing Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir. 2012) (en banc)); see also R.156, PageID#4027 (instruction). Consistent with the instructions, after finding Plaintiffs established a prima facie case, the jury could have found that Atkins’s violation of the anti-grazing rule was not a legitimate nondiscriminatory reason for her discharge because she grazed only because Dolgencorp never provided a reasonable accommodation. The jury could also have found, on the facts of the case, see discussion supra at 47, that Dolgencorp’s decision to apply the policy to her was not job-related and consistent with business necessity. Whatever the jury’s rationale, the district court reasonably found no basis to overturn the verdict on this claim.

In urging reversal, Dolgencorp suggests that, notwithstanding Reeves, “intentional discrimination” is not the standard. Rather, Dolgencorp claims, Plaintiffs had to prove that Dolgencorp’s decision was motivated by disability-related animus: a dislike of people with disabilities or, at least, with diabetes. Brief at 30-31. Quoting a single sentence from Primm v. Tennessee Department of Human Services, No.16-6837, 2017 U.S. App. LEXIS 15779 (6th Cir. Aug. 17, 2017) (unpublished), Dolgencorp asserts that “‘“a basic element for a cause of action under the ADA’” is that the employer “harbored an animus toward the disabled that was a but-for cause” of the discrimination.’” Brief at 27, 30, 33, 41 (quoting Primm, No.16-6837, 2017 U.S. App. LEXIS 15779, at *7-8). In Dolgencorp’s view, the jury instructions were infirm because they did not focus the jury’s attention on whether the legitimate nondiscriminatory reason was “motivated by anti-disability bias,” as required by “this Court’s recent guidance in Primm.”

The premise of this argument is flawed. Evidence that an employer was motivated by animus, though often sufficient, is not required for liability under any anti-discrimination statute, especially the ADA.

For example, an employer would violate the ADA by refusing to promote an applicant with a disabled spouse because the employer feared the applicant would miss too much time caring for the spouse. 42 U.S.C. § 12112(b)(4); 29 U.S.C. pt. 1630 App. § 1630.4. Similarly, absent undue hardship, an employer would violate the law by discharging an employee who requests an accommodation because the accommodation process might be costly, take too long, and simply not be worth the trouble. 42 U.S.C. § 12112(b)(5). In such cases, there is intentional discrimination, but no animus. Thus, like Dolencorp, because they acted intentionally, these employers would not be off the hook merely because the plaintiff did not prove that they harbored an animus toward the disabled or plaintiff’s disability.

Lacking other relevant authority, Dolgencorp overstates the significance of the much-quoted sentence in Primm. Although the company never mentions this fact, both Primm and the decision it relies on, Gamble v. Greater Cleveland Regional Transit Authority, No.15-4208, 2017 WL 5135537, at *2 (6th Cir. June 2, 2017), are unpublished and, therefore, not precedential. Neither Primm nor Gamble turns on proof of “anti-disability animus.” Rather, both cases involve pro se plaintiffs whose complaints did not allege enough facts to support a claim under any standard. See Primm, 2017 U.S. App. LEXIS 15779, at *8-*9 (no disability or “adverse employment action based on disability”); Gamble, 2017 WL 5135537, at *2 (only plaintiff’s opinion that he was fired because of a disability). Dolgencorp offers no authority for its argument that the verdict here is fatally infirm because the jury was not instructed in accordance with “guidance” from the unpublished, non-precedential decision in Primm.

Dolgencorp also asserts that this Court has “consistently rejected invitations to adopt standards that would remove — or even minimize — the ‘mens rea’ component of a disability discrimination claim.” Brief at 33 (citing Brohm v. JH Props., 149 F.3d 517, 521-22 (6th Cir. 1998)). This confuses the standards for punitive damages and liability. There is a special “mens rea” requirement for punitive damages — malice or reckless indifference. 42 U.S.C. § 1977A(b)(1)). But simple liability requires only but-for causation. Lewis, 681 F.3d at 321. As for Brohm, it holds, unremarkably, that, given the obvious safety concerns, the employer would incur no ADA liability for firing an anesthesiologist with a sleep disorder who repeatedly dozed off while treating anesthetized patients. 149 F.3d at 521-22. The case never mentions “mens rea” or animus.

Indeed, much of Dolgencorp’s cited authority does not say what the company cites it for. Dolgencorp asserts that it is “well-settled” the “ultimate question” in analyzing federal discrimination claims is “whether the challenged employment decision was motivated by animus against the protected characteristic.” Brief at 29 (citing Talley, 61 F.3d at 1248; Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998)). But neither Talley nor Smith stands for that proposition. Talley mentions “animus” only in connection with “direct evidence” — not an issue here — and, like Reeves, states that the “ultimate issue” is “defendant’s discriminatory intent.” 61 F.3d at 1248. Smith is likewise inapt. According to Dolgencorp, Smith states that the challenged decision need not be “‘fair’” but only “not motivated by improper animus.” Brief at 29-30. In fact, “discriminatory intent” is the question; Smith uses “animus” only in the sentence “rarely will there be direct evidence from the lips of the defendant proclaiming … animus.” 155 F.3d at 804-05. And despite the quotation marks around the word “fair,” it appears nowhere in the decision.

Finally, Dolgencorp cites a snippet from Atkins’s closing argument purportedly to show that Plaintiffs admitted they was not accusing the company of harboring disability-related animus. See Brief at 30-31 (citing R.156, PageID##3961-62). However, the conclusion Dolgencorp asks the Court to draw from the snippet — that therefore no reasonable jury could find the company violated the ADA — is incorrect. Counsel was describing its theory of the case, not commenting on the evidence. Intentional discrimination, not animus, is the standard. See, e.g., EEOC v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 835 (6th Cir. 1997) (rejecting argument that EEOC must provide “additional evidence of discriminatory animus” beyond inference of “intentional discrimination” raised by McDonnell Douglas framework). There was clearly ample evidence of intentional discrimination without showing that Dolgencorp wanted to rid the workplace of people with diabetes. Indeed, though not required, the jury might well have found animus.

As discussed above, when Dolgencorp decided to fire Atkins, the company knew, from her conversations with Shown, that she had diabetes and had trouble regulating her blood sugar. It also knew she often worked alone in a store where the register was way up front and the lounge was 90 feet away in the back.

In addition, Dolgencorp knew that Atkins had anticipated she might experience a hypoglycemic attack while working alone and specifically requested permission to keep orange juice with her at the register in case of a hypoglycemic attack; the requests were summarily denied as “against company policy,” even though it would not cause undue hardship. The company also knew that virtually any action she took in response to a drop in blood sugar would violate one or more company rules — no eating or drinking at the register; no keeping drinks at the register; no leaving the register unattended while attempting to sprint back to the lounge amidst an episode of low-blood sugar to get and consume her own juice; and, of course, no grazing.

In addition, despite hearing Choate’s implausible story that Atkins, a cashier herself, saved Little Debbie cake wrappers and then paid Choate (who disliked her) for the cakes before heading home from her evening shift, the company knew (or should have known) that Atkins was a respected and trusted employee who never wavered from her position that she had grazed only twice, without discipline, to treat hypoglycemic attacks. Further, Dolgencorp knew that neither Atkins nor Shown understood Dolgencorp’s obligation to provide reasonable accommodation but when Atkins learned she might get “special permission” from HR to keep juice at the register, she excitedly asked to pursue that option. Yet, despite knowing all this, the company went ahead and fired Atkins, for picking the wrong rule to violate.

At a minimum, as the district court concluded, whether Dolgencorp fired Atkins because of her disability was a jury question. The jury heard the evidence and concluded that it did. The court therefore properly denied Dolgencorp’s motion. The judgment on the claim should be affirmed.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

s/Barbara L. Sloan

BARBARA L. SLOAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4721

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 12,820 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in Times New Roman 14 point font.

s/Barbara L. Sloan

BARBARA L. SLOAN

Attorney

Dated: April 18, 2018

[1] EEOC is not involved in Dolgencorp’s appeal of Atkins’s attorneys fee award.

[2] There are two copies of the Day 3 trial transcript. Because Dolgencorp used R.155, EEOC also will.

[3] Section 2000e-5 requires claimants to file with the FEPA before EEOC, which would delay EEOC’s processing of the charge. However, the Supreme Court upheld an interpretation of the provision allowing the parties to enter into a worksharing agreement providing for dual-filing and immediate processing of the charge by EEOC. Commercial Office Prods., 486 U.S. at 111-12.

[4] Dolgencorp does cite Rembisz v. Lew, 830 F.3d 681, 683 (6th Cir. 2016), to illustrate how this Court interprets the charge-filing provisions consistently with their plain language. See Brief at 23-24. Here, however, it is Dolgencorp, not EEOC, that asks the Court to misinterpret the statutory language.

[5] While EEOC did not brief this issue below, Atkins also has a strong equitable tolling argument: she notified Dolgencorp and mailed her charge well within the 180-day period. In EEOC’s view, however, tolling is not necessary because the district court properly interpreted § 2000e-5(e).

[6] Dolgencorp’s assertion that employees are entitled only to an effective accommodation, not the preferred one (Brief at 42-43), is irrelevant since Dolgencorp offered Atkins no accommodation.

[7] Dolgencorp argues it was excused from the interactive process because Atkins had various “treatment options,” and appropriate accommodation was “obvious.” Brief at 43-45 (citing, e.g., Loulseged, 178 F.3d at 736). That makes no sense. “Treatment options” (which the jury disagreed were “equally effective”) are not accommodations. Moreover, Dolgencorp never offered or provided — or even identified — any accommodation.

[8] The Court routinely rejects claims involving alcoholic plaintiffs disciplined for engaging in misconduct while intoxicated, which is permissible under the ADA. See, e.g., Blazek v. City of Lakewood, 576 F. App’x 512, 517 (6th Cir. 2014) (plaintiff whose duties including driving vehicles such as snowplows was fired for being drunk at work). The Court also rejects claims involving violent or otherwise unsafe job-related conduct, even where related to the disability. See, e.g., Macy v. Hopkins Cnty Sch. Bd. of Educ., 484 F.3d 357, 366 (6th Cir. 2007) (employer could fire teacher who because of disability threatened to kill students), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc).