TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES............................................................................. ii

STATEMENT OF INTEREST......................................................................... 1

STATEMENT OF ISSUES............................................................................... 1

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

1. Statement of Facts………………………………………………………..2

2. District Court Decision…………………………………………………..7

ARGUMENT.................................................................................................... 9

I. The district court erred as a matter of law in ruling that AT&T did not need to consider a sitting accommodation for Gleed……………………………..9

A. An employer must consider an accommodation that will enable an employee to avoid pain in performing essential job functions…………….10

B. Gleed needed a sitting accommodation to perform his job without pain…………………………………………………………………………13

C. The accommodation requirement is not limited to the performance of essential job functions……………………………………………………...15

D. Gleed satisfied his obligation to provide notice to his employer when he asked his supervisor for the sitting accommodation……………………….21

II. The district court erred in ruling that offering an unpaid leave of absence is a sufficient alternative to providing Gleed with a schedule adjustment as a reasonable accommodation………………………………………………...24

CONCLUSION............................................................................................... 27

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page(s)

Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993) ........................... 18

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) 16

Curry v. Empire Berol, USA, 1998 WL 13407 (6th Cir. Jan. 7, 1998) ............ 17

EEOC v. Yellow Freight System, Inc.,

2002 WL 31011859 (S.D.N.Y. Sept. 9, 2002) .......................................... 11

Fedro v. Reno, 21 F.3d 1391 (7th Cir. 1994) ................................................. 18

Feist v. La. Dep’t of Justice, 730 F.3d 450 (5th Cir. 2013) ............................. 17

Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944 (8th Cir. 1999) ................. 22

Gaines v. Runyon, 107 F.3d 1171 (6th Cir. 1997)................................... 7,19,20

Hankins v. The Gap, Inc., 84 F.3d 797 (6th Cir. 1996) .................................. 25

Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) ................. 23

Hines v. Chrysler Corp., 231 F. Supp. 2d 1027 (D. Colo. 2002) .................... 23

Hoskins v. Oakland County Sheriff’s Dep’t, 227 F.3d 719 (6th Cir. 2000) ..... 25

Jacques v. Clean–Up Group, Inc., 96 F.3d 506 (1st Cir. 1996) ...................... 18

Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013) ............................. 18

Kiphart v. Saturn Corp., 251 F.3d 573 (6th Cir. 2001) .................................. 17

Landefeld v. Marion Gen. Hosp., 994 F.2d 1178 (6th Cir. 1993) ................ 7,19

Lee v. Dist. of Columbia, 920 F. Supp. 2d 127 (D.D.C. 2013) ....................... 23

Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc) 19

Marshall v. Fed. Express Corp., 130 F.3d 1095 (D.C. Cir. 1997) .................. 11

Nawrot v. CPC Int’l, 259 F. Supp. 2d 716 (N.D. Ill. 2003) ............................ 18

Norville v. Staten Island Univ. Hosp., 196 F.3d 89 (2d Cir. 1999) .................. 26

Ralph v. Lucent Techs., 135 F.3d 166 (1st Cir. 1998) .................................... 24

Sanchez v. Vilsack, 695 F.3d 1174 (10th Cir. 2012) ....................................... 17

Smith v. Honda of Amer. Mfg., Inc., 101 F. App’x 20 (6th Cir. 2004) ........ 8,25

Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc) ....... 22

Sturz v. Wis. Dep’t of Corr., 642 F. Supp. 2d 881 (W.D. Wis. 2009) ........ 11,12

Summers v. Altarum Institute, 740 F.3d 325 (4th Cir. 2014) ........................... 16

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

542 F.3d 1099 (6th Cir. 2008) ........................................................ 11,12,24

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) ....................... 22

Tennessee v. Lane, 541 U.S. 509, 514 (2004) ................................................. 12

Thill v. Olmstead County, 2010 WL 3385234 (D. Minn. Aug. 24, 2010) ....... 12

United States v. Scaife, 749 F.2d 338 (6th Cir. 1984) ...................................... 21

United States v. Williams, 711 F.2d 748 (6th Cir. 1983) .................................. 21

U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) .................................... 14,15

Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538 (7th Cir. 1996) ............... 11

Wallace v Heartland Cmty College,

2014 WL 2809084 (C.D. Ill. June 20, 2014) ........................................ 22,23

Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080 (9th Cir. 2002) ....................... 22

STATUTES, REGULATIONS, & RULES

Title I of the Americans with Disabilities Act,

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

42 U.S.C. § 12111(8) ................................................................................ 15

42 U.S.C. § 12111(9)(A) ........................................................................... 15

42 U.S.C. § 12111(9)(B) ...................................................................... 15,24

42 U.S.C. § 12112(a) ............................................................................. 9,16

42 U.S.C. § 12112(b)(1) ........................................................................... 16

42 U.S.C. § 12112(b)(5)(A).................................................................... 9,15

42 U.S.C. § 12116..................................................................................... 16

42 U.S.C. § 12201(a) ................................................................................ 18

29 C.R.F. § 1614.203(b) ................................................................................ 18

29 C.F.R. § 1630.2(o)(1) ................................................................................ 17

29 C.F.R. § 1630.2(o)(1)(ii) ......................................................................... 9,24

29 C.F.R. § 1630.2(o)(1)(iii) ................................................................... 9,16,26

29 C.F.R. § 1630.2(o)(2)(ii) ........................................................................... 24

29 C.F.R. Pt. 1630, App. § 1630.2(o)........................................................ 14,25

29 C.F.R. Pt. 1630, App. § 1630.9............................................................ 13,24

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

Fed. R. App. P. 32(a)(5) ................................................................................ 28

Fed. R. App. P. 32(a)(6) ................................................................................ 28

Fed. R. App. P. 32(a)(7)(B) ........................................................................... 28

Fed. R. App. P. 32(a)(7)(B)(iii) ...................................................................... 28

OTHER AUTHORITY

EEOC Enforcement Guidance: Reasonable Accommodation and

Undue Hardship Under the ADA, No. 915-002 (Oct. 17, 2002),

available at http://eeoc.gov/policy/docs/accommodation.html......... 21,22,24

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (Commission or EEOC) is the agency charged by Congress with responsibility for enforcing the federal prohibitions on employment discrimination, including the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 12101 et seq. As a federal agency, the Commission is authorized to participate as amicus curiae in the federal courts of appeals. Fed. R. App. P. 29(a). This appeal raises important questions about the scope of an employer’s “reasonable accommodation” obligation under the ADA, the manner in which an employee must request a reasonable accommodation, and what constitutes an offer of an effective alternative reasonable accommodation by an employer. Because these issues are important to the effective enforcement of the ADA, the Commission respectfully offers its views to the Court.

STATEMENT OF THE ISSUES[1]

1. Whether the district court erred in ruling that AT&T did not need to consider a reasonable accommodation for Gleed to sit periodically, where performing the essential functions of his job without accommodation caused him pain, and where he asked his supervisor for a sitting accommodation.

2. Whether the district court erred in ruling that AT&T’s offer of unpaid leave was a sufficient alternative reasonable accommodation to Gleed’s request for a schedule adjustment, and erred in ruling that he needed to make a formal request for such an accommodation.

STATEMENT OF THE CASE

1. Statement of Facts.

Gleed began working as a sales consultant for Centennial Wireless in June 2009, at a retail store in Jackson, Michigan. R.20-44, PgID#404-05 (Gleed dep. at 26, 30). At Centennial, the sales consultants had desks on the sales floor where they could sit while helping customers. Id., PgID#405 (dep. at 31). AT&T acquired Centennial in January 2010, and Gleed continued working as a sales consultant. Id., PgID#404-05 (dep. at 26, 30). During the relevant time, Erick Smith was the Jackson store’s manager and Gleed’s supervisor (id., PgID#409-10 (dep. at 49, 50)), and Smith reported to Brandon Manzer, the district manager. Id., PgID#410 (dep. at 50-51).

In November 2011, AT&T moved the Jackson store to a new location with a different physical layout. Id., PgID#405 (dep. at 31). The sales floor contained no desks (or chairs); it had only counter-height terminals where sales consultants demonstrated products and entered orders for customers. Id., PgID#405-06 (dep. at 32-34). AT&T expected sales consultants to greet customers at the door, and walk them through the store to show different products and sell various services. Id., PgID#406 (dep. at 34-35); R.20-2, PgID#211. Due to the new store’s physical configuration, and to meet AT&T’s expectations, Gleed had to stand for long periods throughout his work day. R.20-44, PgID#405-06 (dep. at 32-35). He usually worked an eight-hour shift, with a thirty-minute unpaid lunch break and two fifteen-minute paid breaks (id., PgID#408 (dep. at 43)), but he testified that “more often than not” he did not get his fifteen-minute breaks. Id., PgID#408 (dep. at 43).

Gleed testified that he has chronic cellulitis in his legs,[2] vascular or circulatory problems that cause his legs to swell, and psoriasis on his feet. Id., PgID#424, 426-27 (dep. at 108-09, 114-18). The swelling in his legs is exacerbated by standing for long periods. Id., PgID#426-27, 431 (dep. at 114-18, 134-36). The more he stands or walks, the more his extremities swell. The more his legs and feet swell, the more his feet rub against his shoes. This creates openings in the skin that expose him to bacteria, which causes infections. Id.

During his first month at the new location, Gleed requested an accommodation. He presented a note from a medical provider to his supervisor, Smith. Id., PgID#427-28 (dep. at 121-24). He also showed Smith (and others) his swollen legs and explained his medical conditions and why he needed to sit. Id., PgID#429 (dep. at 126-29). The note Gleed provided stated: “Patient was seen in our office on 11/22/2011. Please allow to sit as needed.” R.20-14, PgID#262. Smith reviewed the note but told Gleed he was not going to honor it. R.20-44, PgID#428 (dep. at 124).[3] This conversation took place in the presence of Gleed’s coworker, Alicia Witt Grabarek, who was allowed to bring a chair onto the sales floor and sit while working for medical reasons during her pregnancy. Id., PgID#433 (dep. at 144-45). When Smith refused his request to sit as needed, Gleed asked: “What do I got to do, do I got to get pregnant to sit down?” And Smith said, “Yeah.” Id., PgID#428 (dep. at 124-25). Smith also said if he could not do the job, Gleed should quit. Id., PgID#430 (dep. at 133).

Gleed asked only Smith (and Manzer) for this accommodation. Id., PgID#466 (dep. at 197). Although AT&T has a reasonable accommodation procedure that allows employees to contact the Integrated Disability Service Center (IDSC), Gleed did not recall seeing this information. Id., PgID#407 (dep. at 39). Instead, he “inform[ed] [his] supervisor [he] need[ed] work restrictions or a job accommodation” (R.20-35, PgID#338; R.20-44, PgID#407-08 (dep. at 39-42)), which is the IDSC procedure’s first step. Thereafter, Gleed did not sit as needed while working because Smith denied his request to do so. Id., PgID#450 (dep. at 211-13).[4] Gleed testified that while he was able to, and did, perform the duties of his sales consultant job, “without the accommodation, the pain and suffering was much greater.” Id., PgID#425-27, 431 (dep. at 113-21, 136).

In June 2012, Gleed developed a serious infection in his right leg (id., PgID#414 (dep. at 66)), and sought medical treatment. R.20-15, PgID#263; R.20-16, PgID#264-68. On June 28, Gleed saw an infectious disease specialist, Dr. O’Neill, who prescribed daily IV antibiotic treatment and gave him his first infusion that day. R.20-18, PgID#270-71; R.20-19, PgID#272. IV infusions took about an hour and a half (R.20-19, PgID#273-78), and were available at a location near AT&T’s store between 7 a.m. and 1 p.m. R.20-44, PgID#416, 445 (dep. at 76-77, 191). After seeing O’Neill, Gleed informed Smith of his treatment needs and requested a modified schedule to allow him to work around his daily infusions for several weeks. Id., PgID#416, 443 (dep. at 74, 76-77, 185). Gleed asked to leave work for one and a half hours and return to work after his daily infusions, but Smith refused to modify the schedule. Id., PgID#414, 416, 438, 445 (dep. at 68, 75-77, 162, 191).

Gleed then called AT&T’s Human Resources (HR) office, with Smith on the line via conference call. Id., PgID#416 (dep. 75-77). Gleed testified that during the call he “explained the situation,” that is, “[he] had … an infection the specialist wanted [him] to get IVs daily for, it could be up to four to six weeks and that Erick [Smith] … wrote the schedule a month-and-a-half [ago], so [Smith] wasn’t willing to rewrite the schedule just for that.” Id., PgID#416, 430 (dep. at 74-77, 130-32). Gleed asked the HR representative what his other options were, and she told him that his only option was to take the time off without pay; she said that when he came back, he could fill out some paperwork, they would investigate, and if he had any money coming (presumably under short-term disability), he would get it then. Id., PgID#416-17, 445 (dep. at 74-75, 78-79, 191-93). Since AT&T only offered him unpaid leave for one to two months, which he could not afford (id., PgID#417, 446 (dep. at 78-79, 195)), Gleed went back to see O’Neill to ask what his medical options were if he could not get time off work for the IV treatments at that time. Id., PgID#417 (dep. at 81). Dr. O’Neill told him there was no other way for him to receive the treatment he needed, and she said, “you can either work or you can live.” Id. At that point, Gleed decided to resign. Id.

The next day, on June 29, Gleed advised Smith that he was resigning and offered to give two weeks’ notice (id., PgID#414-15 (dep. at 69, 73)), but Manzer said no notice was necessary. Id., PgID#413 (dep. at 63). Gleed submitted his resignation by email that same day. Id.

Gleed sued AT&T, alleging the company denied him reasonable accommodations under the ADA, engaged in gender discrimination under Title VII, and constructively discharged him.

2. District Court Decision.

The district court granted summary judgment to AT&T. R.28, PgID#543-567 (op.). On the ADA sitting accommodation claim, the court held that AT&T need not consider an accommodation for Gleed because he “expressly testified that he could perform his job without his requested accommodation and that he did perform his job without an accommodation for seven months.” Id., PgID#553-554 (citing, inter alia, Gaines v. Runyon, 107 F.3d 1171, 1178 (6th Cir. 1997); Landefeld v. Marion General Hosp., 994 F.2d 1178, 1182 (6th Cir. 1993)). Additionally, the court held, Gleed “failed to properly request an accommodation to sit as needed.” R.28, PgID#554. Accordingly, the court did not address Gleed’s testimony that he experienced “much greater … pain and suffering” in performing his job without the proposed accommodation. Id., PgID#553-555. The court also ruled that Gleed’s submission of a medical note supporting this request only to his supervisor was insufficient to trigger AT&T’s obligation to engage in an interactive process because Gleed did not need to sit, he did not follow all of AT&T’s procedures for requesting an accommodation, and his regular fifteen-minute breaks and thirty-minute lunch break permitted him to sit every two hours. Id.

On the modified schedule accommodation, the court also rejected the argument that AT&T violated the ADA by denying Gleed’s request for a schedule modification to obtain daily IV antibiotic infusions. Once again, the court noted, Gleed asked his supervisor for this accommodation, which his supervisor denied. Id., PgID#555. The court recognized that Gleed’s request to receive IV treatments during work hours or for a schedule change “would be within the realm of a reasonable ADA accommodation” (id., PgID#557), but the court noted that AT&T’s HR representative offered Gleed an alternative accommodation. Therefore, the court said, “the pertinent issue before this Court is whether Defendant’s offer of medical leave and short term disability constitutes a reasonable accommodation which Plaintiff summarily rejected.” Id. The court emphasized that “[w]hile Plaintiff may have preferred to have a different schedule rather than to take a medical leave of absence, Plaintiff ‘cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided.’” Id., PgID#558 (quoting Smith v. Honda of Amer. Mfg., Inc., 101 F. App’x 20, 25 (6th Cir. 2004)).

The court also held that AT&T did not subject Gleed to gender discrimination when it denied him a sitting accommodation and concluded that Gleed could not establish that he was constructively discharged. Id., PgID#560-566.

ARGUMENT

The ADA prohibits employers from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12112(a). Such discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” absent undue hardship. 42 U.S.C. § 12112(b)(5)(A). An accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability “to perform the essential functions” of his job (29 C.F.R. § 1630.2(o)(1)(ii)) or “to enjoy equal benefits and privileges of employment” (29 C.F.R. § 1630.2(o)(1)(iii)). Gleed sought two accommodations, both of which AT&T summarily denied. The district court assessed the denials, but in so doing the court misunderstood the requirements of the ADA.

I. The district court erred as a matter of law in ruling that AT&T did not need to consider a sitting accommodation for Gleed.

After working on his feet throughout the work day for nearly a month at AT&T’s new store, Gleed sought a reasonable accommodation, to sit as necessary, due to his physical impairments. He explained and demonstrated to his supervisor that his impairments make his legs swell. He also submitted a note from a medical provider stating that he should be allowed to sit as needed. Gleed’s supervisor refused his requested accommodation. Despite the absence of any evidence that the proposed accommodation would pose an undue hardship, the district court held that AT&T permissibly denied the accommodation. According to the court, Gleed did not need an accommodation to perform his essential job functions, his lack of subsequent complaints indicated that he did not need a sitting accommodation at all, and he did not properly request an accommodation. The district court erred in reaching these holdings.

A. An employer must consider an accommodation that will enable an employee to avoid pain in performing essential job functions.

The court ruled that Gleed did not need the proposed sitting accommodation because he was able to perform his essential job functions without that accommodation, albeit in “much greater” pain. R20-44, PgID#425-27, 431 (dep. at 113-21, 136). However, the fact that Gleed could perform his essential job functions does not mean he did not “actually need[]” an accommodation, as the district court stated. R.28, PgID#553. An employer must make a reasonable accommodation not only where the employee is completely unable to do the essential job functions without it, but also where continuing to perform those functions without the accommodation exacerbates the employee’s pain or other symptoms of his or her impairment. See Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1108 (6th Cir. 2008) (ruling for plaintiff on ADA claim because she “was not offered an accommodation that would have allowed her to work her shift without pain”); Sturz v. Wis. Dep’t of Corr., 642 F. Supp. 2d 881, 888 (W.D. Wis. 2009) (“[Plaintiff] needed the accommodations to reduce stress on her joints and . . . not having the accommodations exacerbated her conditions . . . . [P]laintiff did not have to show it was physically impossible to do her job before defendant was obligated to provide her with an accommodation.”); EEOC v. Yellow Freight System, Inc., 2002 WL 31011859, at *21 (S.D.N.Y. Sept. 9, 2002) (proposed accommodation ineffective where it would allow employee “to do the job, if at all, only with substantial pain”); id. (“An accommodation that aggravates the symptoms of a disability, rather than mitigates their effect on the employee’s ability to perform, is no accommodation at all.”); Marshall v. Fed. Express Corp., 130 F.3d 1095, 1099 (D.C. Cir. 1997) (assuming without deciding that ADA prohibits “working conditions that inflict pain or hardship on a disabled employee”); see generally Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 546 (7th Cir. 1996) (accommodation must allow employee to work in “reasonable comfort”).

As in this case, the plaintiff in Talley sought use of a stool while working because standing for a long period of time caused her “severe pain.” Talley, 542 F.3d at 1103. This Court stated that “[w]ithout the use of a stool to sit upon while working at the register, she was unable to perform her position.” Id. Again, as in this case, it does not appear that Talley literally could not work at all without a stool; she worked from the onset of her problems on March 25 until she took leave in May, and during that time her “co-workers … claimed that Talley often appeared to be in severe pain when she was working at her register.” Id. at 1107. Thus Talley indicates that the district court erred in holding that AT&T need not consider a reasonable accommodation for Gleed to address his pain when standing.

In an analogous case involving the public access provisions of the ADA, a court addressed the defendant’s argument that because the plaintiff could access the building at issue without an accommodation, he had no ADA accommodation claim. The court rejected that argument: “Title II of the ADA does not leave a person with disabilities who manages to crawl up a courthouse’s steps with no remedy for the courthouse’s inaccessibility.” Thill v. Olmstead County, 2010 WL 3385234, *3 (D. Minn. Aug. 24, 2010) (citing Tennessee v. Lane, 541 U.S. 509, 514, 531 (2004)); see also Sturz, 642 F. Supp. 2d at 888 (“It may be that plaintiff could open the front door with great difficulty or make her way through the parking lot without falling each time,” but physical “impossibility” would be “a disturbing standard”). EEOC Guidance makes the same basic point: the “reasonable accommodation requirement is best understood as a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated.” 29 C.F.R. Pt. 1630, App. § 1630.9 (emphasis added). Barriers need not prevent performance of the job altogether; barriers that inhibit access also may implicate employment opportunities. Gleed’s pain is a barrier to equal employment opportunity, and the logic of Talley, Sturz, and Thill should apply to this case.

B. Gleed needed a sitting accommodation to perform his job without pain.

There is evidence that Gleed experienced “much greater … pain and suffering” without the sitting accommodation. R.20-44, PgID#426-27, 431 (dep. at 114-18, 134-36). The district court referred to AT&T’s accommodation denial as merely a de minimis action, but there is no basis for the court’s suggestion that Gleed’s needs were trivial. To the extent that the court’s conclusion was based upon surmising that the fact that Gleed worked for seven months without an accommodation meant that he did not actually experience much pain, there is record evidence to the contrary and thus this issue was not appropriately resolved on summary judgment. R20-44, PgID#425-27, 431 (dep. at 113-21, 136). There is evidence that Gleed’s extremities became swollen when he engaged in excessive standing and walking. The swelling not only increased Gleed’s pain, but also increased his risk of developing infections in his feet and legs, such as the one he developed in June 2012. Id., PgID#426-27, 431 (dep. at 114-18, 134-36). All of this is evidence that Gleed did, in fact, need his proposed accommodation to perform the essential functions of his job, to mitigate the symptoms of his disability that were exacerbated by excessive standing.

Additionally, there is no evidence that AT&T thought Gleed’s requested accommodation was unreasonable. Cf. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002) (an accommodation is “reasonable” if it “seems reasonable on its face, i.e., ordinarily or in the run of cases”). Indeed, there is evidence that AT&T made the very accommodation Gleed sought for another employee, Ms. Witt Grabarek. And, as noted above, AT&T offered no evidence that allowing Gleed to sit as needed would pose any undue hardship.

The district court also concluded that Gleed’s need to be off his feet every two hours was “an accommodation that was satisfied by his standard fifteen-minute break every two hours and a thirty minute lunch break.” R.28, PgID#554-555. Of course, offering the standard breaks was not an “accommodation” at all because it did not involve any change in the way things are customarily done. See 29 C.F.R. Pt. 1630, App. § 1630.2(o). Of greater significance, though, is that the court ignored Gleed’s testimony that “more often than not” he did not get his fifteen-minute breaks at all. R.20-44; PgID#408 (dep. at 43). And the court disregarded Gleed’s testimony that what breaks he did receive still left him with swollen legs and in “pain.” In other words, even if Gleed did get breaks, they did not effectively accommodate his physical impairments. See Barnett, 535 U.S. at 400 (“An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s limitations.”) (emphasis in original). Therefore, there is a genuine issue of material fact as to whether AT&T’s standard break practice was actually provided and whether it was sufficient.

C. The accommodation requirement is not limited to the performance of essential job functions.

An accommodation that enables an employee to perform his essential job functions without pain is, by definition, an accommodation necessary for the performance of those functions. But even if pain alleviation were not linked to performance of essential job functions, the ADA still requires an employer to consider a reasonable accommodation for an employee with a disability who needs one. The ADA’s prohibition against discrimination on the basis of disability includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” absent undue hardship. 42 U.S.C. § 12112(b)(5)(A). Nothing in the plain language of the ADA limits the accommodation requirement to essential job functions. The statutory definition of reasonable accommodation includes a range of examples, but nowhere states reasonable accommodations are necessary only to enable the performance of essential job functions. 42 U.S.C. § 12111(9)(A) & (B). While it is true that an employer may have to make accommodations to enable an employee to perform essential job functions, 42 U.S.C. § 12111(8), the ADA’s concerns extend more broadly to ensure that individuals with disabilities have full access to the benefits and privileges of employment. See 42 U.S.C. § 12112(a) (prohibiting discrimination in “advancement, … job training, and other terms, conditions, and privileges of employment”); see also 42 U.S.C. § 12112(b)(1) (prohibiting limiting or segregating individuals because of disability).

The Commission’s ADA regulations, which derive from the statutory language, interpret the term “reasonable accommodation” to extend beyond adjustments that enable an individual to perform essential job functions. The regulations state that reasonable accommodation can mean “[m]odifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” 29 C.F.R. § 1630.2(o)(1)(iii). The Commission’s regulations are authorized by 42 U.S.C. § 12116, and as such they are entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). See Summers v. Altarum Institute, 740 F.3d 325, 331-32 (4th Cir. 2014).

Although working without pain or the risk of exacerbating a medical condition is not precisely a “privilege” or “benefit” of employment (as those terms normally connote something additional that an employer provides to its employees), working in pain certainly affects the conditions of one’s employment. The benefit/privilege provision in the statute and regulation makes the broader point that the accommodation requirement is not as limited as the district court held. This Court has embraced this broader understanding of the accommodation requirement, noting that the “reasonable accommodations” requirement extends beyond essential job functions, as that term may include workplace “‘[m]odifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment….’” Kiphart v. Saturn Corp., 251 F.3d 573, 586 (6th Cir. 2001) (quoting 29 C.F.R. § 1630.2(o)(1)). See also Curry v. Empire Berol, USA, 1998 WL 13407, at *4 (6th Cir. Jan. 7, 1998) (same).

Other courts of appeals, and district courts, likewise have held that an employer’s obligation to provide reasonable accommodation extends to more than essential job functions. See, e.g., Feist v. La. Dep’t of Justice, 730 F.3d 450, 453-54 (5th Cir. 2013) (holding that “the district court erred in requiring a nexus between the requested accommodation and the essential functions of Feist’s position” because reasonable accommodations are not restricted to modifications that enable performance of essential job functions); Sanchez v. Vilsack, 695 F.3d 1174, 1180-81 (10th Cir. 2012) (holding that employer must provide transfer as a reasonable accommodation to employee who needed it to obtain medical therapy, even though employee could perform essential job functions without transfer) (Rehabilitation Act case); [5] Buckingham v. United States, 998 F.2d 735, 741 (9th Cir. 1993) (employee who is able to perform essential job functions may nonetheless be entitled to reasonable accommodation of a transfer so he can receive better medical treatment) (Rehabilitation Act case); see also Fedro v. Reno, 21 F.3d 1391, 1395-96 (7th Cir. 1994) (Rehabilitation Act may require accommodation for employees to pursue therapy or treatment for their handicap or enjoy the privileges and benefits of employment equal to those enjoyed by non-handicapped employee); Jacques v. Clean–Up Group, Inc., 96 F.3d 506, 515 n. 9 (1st Cir. 1996) (same under ADA); Nawrot v. CPC Int’l, 259 F. Supp. 2d 716, 726 (N.D. Ill. 2003) (accommodation obligation under the ADA includes removing barriers that prevent individuals with disabilities from obtaining medical treatment). Therefore, regardless of whether Gleed needed an accommodation to perform his essential job functions, AT&T’s accommodation obligation included making modifications or adjustments that would enable him to avoid aggravating his pain or other symptoms of his disability while working.

The district court held otherwise. Relying, inter alia, on decisions from this Circuit, the court concluded that a reasonable accommodation must enable the individual to perform essential functions of his job, and an employee who can perform his essential functions without accommodation is not entitled to one under the ADA or the Rehabilitation Act. R.28, PgID#553-554 (citing Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993); and Gaines v. Runyon, 107 F.3d 1171, 1178 (6th Cir. 1997)). The district court read too much into these cases, for neither presented the issue of whether an available accommodation would have enabled an individual with a disability to work without pain or was necessary for reasons other than the ability to perform essential job functions.

In Landefeld, the critical issue was whether a hospital board acted “solely on the basis of his handicap”[6] when it suspended the medical staff privileges of a doctor with bipolar disorder after he stole other physicians’ mail. 994 F.2d at 1181. The Court rejected plaintiff’s claim on the ground that the board had no knowledge of his mental illness. Id. at 1181-82. In light of its conclusion that plaintiff had not made out a prima facie case, this Court stated that obviated the need to consider whether Landefeld was qualified or needed a reasonable accommodation to be qualified. Id. at 1182. In sum, the Court’s ruling does not support the district court’s conclusion here, for the Landefeld Court did not hold that accommodations are only required to allow an individual to perform essential job functions.

In Gaines, the issue was not whether the accommodation requirement is limited to essential job functions, but whether the plaintiff there “demonstrate[d] a need for the requested accommodation” at all. 107 F.3d at 1176. The Court held Gaines had not provided evidence that he needed a shift at a particular time and location because of his epilepsy, and cited, inter alia, the tepid recommendation in a physician’s note, which stated only that “it may be well” for him to work a day shift closer to his home. Id. The Court deemed this evidence insufficient to establish a need for the requested accommodation. Id.

Understanding these decisions as limited to the precise issue before the Court, and not to the broader question of when an employer may need to consider a reasonable accommodation, not only is consistent with the decisions themselves, but also ensures that the decisions are in harmony with other Sixth Circuit decisions (namely Kiphart and Curry) recognizing a wider range of circumstances in which an employer may need to consider a reasonable accommodation. Furthermore, because the district court’s reading of these decisions would place the Sixth Circuit in tension with the decisions of at least five other courts of appeals,[7] such a reading would itself be in tension with this Court’s precedent. See United States v. Scaife, 749 F.2d 338, 344 (6th Cir. 1984) (“[I]ntercircuit conflicts are to be avoided if possible.”); United States v. Williams, 711 F.2d 748, 751 (6th Cir. 1983) (noting strong interest in “preserving consistency among the circuits”). AT&T’s obligation to provide reasonable accommodations therefore includes accommodations that enable an employee to work without exacerbating his medical condition or increasing his pain and the district court should not have rejected Gleed’s claim on that ground.

D. Gleed satisfied his obligation to provide notice to his employer when he asked his supervisor for the sitting accommodation.

The district court faulted Gleed for failing “to properly request an accommodation to sit” under AT&T’s procedures. R.28, PgID#554. The court relied on no case law to support the notion that an employee must resort to special procedures beyond the simple notice requirement set out in EEOC Guidance, and the overwhelming authority is to the contrary.

Under EEOC Guidance, an employee requesting an accommodation may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.” See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, No. 915-002 (Oct. 17, 2002) (EEOC Guidance), at Q/A1 (individual requesting accommodation “must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition”), available at http://eeoc.gov/policy/docs/accommodation.html. See also id. (an employee who tells her supervisor she needs six weeks off to treat a back problem has requested an accommodation, as has an employee who informs his supervisor he is “having trouble getting to work at [his] scheduled starting time because of medical treatments”).

Case law is consistent with EEOC Guidance. As the Third Circuit has emphasized, “[w]hat matters under the ADA are not formalisms about the manner of the request, but whether the employee … provides the employer with enough information that … the employer can be fairly said to know of both the disability and desire for an accommodation.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999) (relying on EEOC Guidance). See also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (“An employee is not required to use any particular language when requesting an accommodation but need only ‘inform the employer of the need for an adjustment due to a medical condition.’”) (citation omitted); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 n.5 (8th Cir. 1999) (accommodation request need not be in writing or use “magic words”; the notice “must merely make it clear to the employer that the employee wants assistance for his or her disability”); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999) (en banc) (same).

Similarly, courts have rejected the idea than an employee may only request an accommodation through a formal mechanism. See Wallace v Heartland Cmty Coll., 2014 WL 2809084, at *7 (C.D. Ill. June 20, 2014) (“requests for accommodation need not be communicated through formal channels”); Lee v. Dist. of Columbia, 920 F. Supp. 2d 127, 137 (D.D.C. 2013) (rejecting the District’s assertion that plaintiff could only request reasonable accommodation through disability coordinator, and noting that “there is no such requirement in the statute or any regulation”); Hines v. Chrysler Corp., 231 F. Supp. 2d 1027, 1042 (D. Colo. 2002) (concluding plaintiff was not obligated to follow CBA’s procedures for requesting reassignment because these procedures do not govern request at issue, “‘nor do they supersede ADA requirements’”) (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir. 1998) (“A request as straightforward as asking for continued employment is a sufficient request for accommodation.”)).

The record shows that Gleed informed his supervisor of his need for a sitting accommodation and asked to be allowed to sit when needed. Gleed testified that he was not aware of AT&T’s specific procedures, but those procedures provide that an employee may notify his supervisor of such a need. When Smith denied the proposed accommodation, he did not alert Gleed that he could, or should, pursue any additional steps to request the accommodation he sought. On this evidence a reasonable jury could find that Gleed met his initial burden of notifying AT&T of his request to sit as a reasonable accommodation for his physical impairments. See Talley, 542 F.3d at 1108 (plaintiff bears initial burden of notifying employer of need for accommodation).

II. The district court erred in ruling that offering an unpaid leave of absence is a sufficient alternative to providing Gleed with a schedule adjustment as a reasonable accommodation.

Gleed requested a four- to six- week schedule adjustment for treatment of a severe leg infection that required daily IV antibiotic infusions. He showed Smith, his supervisor, his infected leg, informed him of his treatment requirements, and requested a modified schedule to allow him to keep his job and work around his daily infusions. This was a facially reasonable request for an accommodation due to a physical impairment. See 42 U.S.C. § 12111(9)(B) (reasonable accommodations may include “modified work schedules, . . . and other similar accommodations”); 29 C.F.R. § 1630.2(o)(2)(ii) (same); 29 C.F.R. Pt. 1630,

App. § 1630.9 (barriers to equal employment opportunity include “rigid work schedules that permit no flexibility as to when work is performed”); EEOC Guidance, at Q/A 22 (“An employer must provide a modified . . . schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees.”); Ralph v. Lucent Techs., 135 F.3d 166, 171-72 (1st Cir. 1998) (a modified work schedule is a form of reasonable accommodation). Once again, Gleed’s supervisor, Smith, flatly refused his accommodation request, even though AT&T offered no evidence that providing such a schedule adjustment would pose any undue hardship.

The district court rejected the argument that AT&T violated the ADA by denying Gleed’s requested schedule modification primarily because AT&T offered him an alternative accommodation—an unpaid FMLA leave of absence and/or short term disability leave. However, an unpaid leave of absence is not a reasonable accommodation if, without undue hardship, an employer can make a schedule adjustment that would allow an employee to continue doing his job, with pay, while getting treatment. See 29 C.F.R. Pt. 1630, App. § 1630.2(o) (“A reasonable accommodation “enables an individual with a disability to enjoy equal employment opportunities.”).

This Court has held that “an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided.” Hankins v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996). This is true where more than one effective reasonable accommodation is available. Smith, 101 F. App’x at 25. However, here, when AT&T rejected Gleed’s request for a schedule adjustment, it offered him only an unpaid leave of absence. AT&T’s offer did not constitute an alternative reasonable accommodation in this case. See Hoskins v. Oakland County Sheriff’s Dep’t, 227 F.3d 719, 728 n.3 (6th Cir. 2000) (stating that unlike in Hankins, the positions offered were not comparable as both involved a pay cut). “[A]n offer of an inferior position,” such as a transfer “to a position that would involve a significant diminution in salary, benefits, seniority or other advantages,” does not constitute a reasonable accommodation where an employee can be accommodated in her current position or in an available position with comparable salary, benefits, and status. Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99-100 (2d Cir. 1999) (holding that part-time position that “would have resulted in a significant cut” in pay and benefits was not comparable). Such a result would contravene the reasonable accommodation principle of enabling individuals with disabilities “to enjoy equal benefits and privileges of employment as are enjoyed by … employees without disabilities.” 29 C.F.R. § 1630.2(o)(1)(iii). For the same reasons, an employer cannot require an employee to take unpaid leave if it can reasonably accommodate the employee with a schedule modification, absent undue hardship. No evidence of undue hardship exists in this case.

The district court also rejected the scheduling accommodation because, although Gleed asked for this accommodation from Smith, “he never specifically requested a scheduling accommodation from Defendant’s Human Resources representative.” R.28, PgID#557. For the reasons discussed earlier with regard to the sitting accommodation (see supra at 21-24), Gleed’s notice to his supervisor was sufficient to put AT&T on notice and establish that he requested a reasonable scheduling accommodation.

CONCLUSION

For the foregoing reasons, the Commission urges this Court to reverse the judgment of the district court and remand this case for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ s/ Donna J. Brusoski____________

General Counsel Donna J. Brusoski

CAROLYN L. WHEELER EQUAL EMPLOYMENT OPPORTUNITY

Acting Associate General Counsel COMMISSION

Office of General Counsel

JENNIFER S. GOLDSTEIN 131 M Street, N.E., 5th Floor

Acting Assistant General Counsel Washington, DC 20507

(202) 663-7049

fax: (202) 663-7090

donna.brusoski@eeoc.gov

[1] The Commission takes no position on any other issue in this appeal.

[2] Cellulitis is a bacterial infection of the skin and the tissue beneath the skin. R20-16, PgID#268.

[3] Gleed stated that district manager, Manzer, was also present during this conversation. R.20-23, PgID#283; R.20-44, PgID#430 (dep. at 133).

[4] Smith disputed that Gleed did not sit thereafter (R.20-36, PgID#348 (decl. at ¶¶ 5 & 6)), but Alicia Witt Grabarek corroborated Gleed’s version of events in an email stating: “This is verification that I was able to sit in a chair periodically during my pregnancy [despite] a job position (retail sales consultant at AT&T Mobility) that required me to stand during my shifts. I can also verify that although Daniel Gleed had a doctor’s note to also have a chair due to medical issues with his feet, he was not allowed to have a stool or chair.” R20-24, PgID#288.

[5] This Court reviews claims brought under the Rehabilitation Act under the same standards that govern ADA claims. See Keith v. County of Oakland, 703 F.3d 918, 923 (6th Cir. 2013); see also 42 U.S.C. § 12201(a) (nothing in the ADA “shall be construed to apply a lesser standard” than the standard under the Rehabilitation Act); and 29 C.R.F. § 1614.203(b).

[6] This Court has since overruled that causation standard. See Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 317 (6th Cir. 2012) (en banc).

[7] The First, Fifth, Seventh, Ninth, and Tenth Circuits have rejected a narrow reading of the accommodation requirement. See supra at 17-18.