The district court erred in dismissing Iselin’s amended complaint because it alleged facts that state a plausible claim of disability discrimination under the ADA. 8

CONCLUSION.. 18

CERTIFICATE OF COMPLIANCE. 19

CERTIFICATE OF SERVICE. 20

TABLE OF AUTHORITIES

Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016).................... 12, 17

Ashcroft v. Iqbal, 556 U.S. 662 (2009))................................................... 8, 9, 15

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)................. 8, 9, 10, 11, 17

Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011)...................................... 15

Chalfant v. Titan Distrib., Inc., 475 F.3d 982 (8th Cir. 2007)....................... 13

D’Angelo v. Conagra Foods, Inc., 422 F.3d 1220 (11th Cir. 2005)................ 13

EEOC v. Picture People, Inc., 684 F.3d 981 (10th Cir. 2012)....................... 12

Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877 (10th Cir. 2015) 12, 17-18

Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012)................ 9, 10, 11

Koessel v. Sublette Cty. Sheriff’s Dep’t, 717 F.3d 736 (10th Cir. 2013).......... 11

Lebahn v. Nat. Farmers Union Uniform Pension Plan, 828 F.3d 1180 (10th Cir. 2016).......................................................................................................... 16

Miller v. Glanz, 948 F.2d 1562 (10th Cir. 1991)........................................... 11

Neitzke v. Williams, 490 U.S. 319 (1989)........................................................ 10

Rizzo v. Children’s World Learning Ctrs., Inc., 173 F.3d 254 (5th Cir. 1999) 13

Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008)............................ 10, 15

Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226 (10th Cir. 1991) 11

Statutes, REGULATIONS & Rules

42 U.S.C. § 12117............................................................................................ 1

42 U.S.C. § 12111(8)...................................................................................... 12

29 C.F.R. § 1630.2(n)(3)................................................................................ 12

Fed. R. Civ. P. 8(a)(2) .................................................................................... 8

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

OTHER AUTHORITIES

EEOC Enforcement Guidance: Disability-Related Inquiries, No. 915.002 (July 27, 2000), available at www.eeoc.gov/policy/docs/guidance-inquiries.html........................................................................................... 13

Joseph A. Seiner, Pleading Disability, 51 B.C. L. Rev. 95 (2010)................. 14

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is the agency Congress established to interpret, administer, and enforce Title I of the Americans with Disabilities Act of 1990 (“ADA”), see 42 U.S.C. § 12117. Here, the district court dismissed the plaintiff’s amended complaint, ruling that it failed to state a plausible ADA claim although the complaint alleged that the plaintiff was disabled, was qualified because he had been performing the essential functions of the job at issue as a temporary worker for five months, but was not hired for the position on a permanent basis because he reportedly failed a physical assessment test. The EEOC has a strong interest in ensuring that plaintiffs are not precluded from vindicating their statutory rights in federal court by the premature and incorrect dismissal of well-pleaded complaints alleging plausible claims of employment discrimination. We therefore offer our views to the Court pursuant to Federal Rule of Appellate Procedure 29(a).

STATEMENT OF THE ISSUE

Whether the district court misapplied the governing legal standards in determining the sufficiency of Iselin’s amended complaint.

STATEMENT OF THE CASE

A. Statement of the Facts

Bama Companies, Inc., (“Bama”) is a Tulsa, Oklahoma-based baked goods manufacturer serving large retail and restaurant chains. Arnold Iselin was placed by a temporary employment staffing agency as a general production worker at one of Bama’s facilities on January 7, 2015, earning $10 per hour. Aplt.App. at 30 (Amended Complaint (“AC”) ¶¶ 5-6). Before beginning the assignment, Iselin informed Bama and the temporary employment placement agency that he had a disability. Id. at 31 (AC ¶ 12) (“Plaintiff voluntary self-identified himself as having a disability to his employers . . . .”). Iselin alleged that he suffers from an inoperable rotator cuff tear and was found to be disabled by the U.S. Veterans Administration. Id. (AC ¶¶ 13-14).

On June 16, 2015, Bama offered Iselin a permanent position as a general production worker with an hourly pay raise and promise of an additional pay raise in the future. Aplt.App. at 31 (AC ¶ 9). The offer was conditioned on Iselin passing a “Physical Demand Assessment,” which had not been required for the temporary placement. See id. at 31, 33, 34 (AC ¶¶ 10, 28, 33-34). Bama informed Iselin that he failed the Assessment (id. at 31 (AC ¶ 11)), rescinded the permanent job offer, and terminated him from his temporary production worker position. Id. at 32 (AC ¶¶ 19-20) (alleging that “[a]s a result of this disability discrimination,” he “was terminated from his position with the Defendant . . . .”).

On October 5, 2015, Iselin sued Bama for disability discrimination pro se. Aplt.App. at 5. Bama filed a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint on January 20, 2016. Aplt.App. at 13. Iselin filed an amended complaint on January 28, 2016, after obtaining counsel. Aplt.App. at 21, 23. The amended complaint alleges discriminatory termination, discriminatory failure to hire, failure to engage in the interactive process and accommodate Iselin’s disability, and “misuse of employment testing.” Aplt.App. at 32, 33, 34, 35 (AC ¶¶ 20, 24-25, 30, 37). Iselin alleged that he “was qualified to perform the essential functions of his position as a general production worker for Defendant, and he did perform these essential functions from January 7, 2015, until June 11, 2015.” Id. at 32 (AC ¶ 17); see also id. at 32, 33, 34 (AC ¶¶ 22, 27, 32) (stating same); see also id. at 35 (AC ¶ 36) (“Plaintiff had been performing the essential functions of his job as a general production worker before being subjected to a physical examination.”).

Bama moved to dismiss the amended complaint on February 10, 2016. Aplt.App. at 37. The company argued that Iselin “was unable to pass the Physical Demand Assessment demonstrating that he was unable to perform the essential functions of the position with or without accommodation.” Id. at 38. Bama also argued that it was “expressly authorized to conduct medical examinations after a conditional offer of employment is given,” thus Iselin “does not state a claim for relief” in alleging misuse of employment testing. Id. at 39.

B. District Court Decision

The district court granted Bama’s motion to dismiss for failure to state a claim upon which relief could be granted. Aplt.App. at 72 (Opinion and Order (“Op.”) at 8). The court noted that only the question of whether Iselin was qualified was before the court “[b]ecause defendant does not contest any of the other elements.” Id. at 67 (Op. at 3). The court stated that “[f]irst, the Court must determine whether the plaintiff can perform the essential functions of the job.” Id. The court emphasized that the “ADAAA gives ‘consideration . . . to the employer’s judgment as to what functions of a job are essential,” that the Tenth Circuit “explicitly incorporates the EEOC’s regulations and counsels in favor of deference to an employer’s judgment concerning essential functions,” and that it would not “‘second guess the employer’s judgment when its description is job-related, uniformly enforced, and consistent with business necessity.” Id. at 67-68 (Op. at 3-4 (quoting Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 888 (10th Cir. 2015)).

The court stated that Iselin “appears to argue that because he worked as a temporary general production worker before applying for and being offered the permanent general production worker position, he was ‘qualified’ to perform the essential functions of the job—notwithstanding the results of the Assessment.” Id. at 68 (Op. at 4). The court concluded that “plaintiff’s Amended Complaint does not state a plausible claim for relief” because “the fact that plaintiff failed the Assessment indicated to defendant that he could not perform the essential functions of the job, which warranted the termination of his employment.” Id. at 68-69 (Op. at 4-5). Because Bama “asserts that the Assessment was the method it used ‘to determine whether plaintiff was qualified to perform the essential functions of the position with or without accommodation,’” and “the Court must defer to defendant’s judgment regarding the essential functions of the position and cannot second-guess defendant’s chosen method of determining whether plaintiff was qualified,” in the court’s view, “plaintiff cannot show that he was qualified to perform the essential functions of the job.” Id. at 69 (Op. at 5).

The court also held that Iselin failed to allege “any facts to suggest that the Assessment was not job-related, not consistent with business necessity, or that it was not uniformly imposed as a condition of permanent employment.” Id. at 69 (Op. at 5). Iselin offered only his “bare assertion that he is able to perform the duties of the position.” Id. Additionally, the court held that Iselin failed to offer facts “to suggest any accommodation that defendant could have made.” Id. at 70 (Op. at 6).

In dismissing Iselin’s claim that Bama had misused its Assessment to withdraw his job offer, the court rejected Iselin’s allegations that the temporary job and the permanent job were the same and that he had already been performing the essential functions of the production worker job since January 2015 and so should not have been required to pass the Assessment. Id. at 71 (Op. at 7). The court credited Bama’s arguments that the jobs were different because the job for which Iselin was rejected was directly with Bama and not the temporary employment placement agency, was permanent and not temporary, and paid a higher hourly wage than the temporary position. Id. at 72 (Op. at 8). Thus, the court opined, “the two jobs could not be the ‘same.’” Id.

ARGUMENT

The district court erred in dismissing Iselin’s amended complaint because it alleged facts that state a plausible claim of disability discrimination under the ADA.

Because Iselin’s amended complaint contained sufficient allegations to raise a plausible claim for relief under the ADA, the district court’s dismissal of this case was inconsistent with the Supreme Court’s and this Court’s standards for granting a motion to dismiss and should be reversed. Under Federal Rule of Civil Procedure 8(a)(2), a civil complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court in Bell Atlantic Corp. v. Twombly explained that to survive a motion to dismiss for failure to state a claim, a complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests . . . .” 550 U.S. 544, 555 (2007) (internal quotation marks omitted). In Ashcroft v. Iqbal, the Court elaborated that the complaint must “contain sufficient factual material, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. This Court has explained, “[i]n examining a complaint under Rule 12(b)(6), we will disregard conclusory statements and look only to whether the remaining factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

The “plausibility” determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-64. A complaint “attacked by a [motion to dismiss for failure to state a claim] does not need detailed factual allegations.” Twombly, 550 U.S. at 555. Rather, the facts alleged in the complaint simply “must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . .” Id. This Court has confirmed that “Rule 8(a)(2) still lives. There is no indication the Supreme Court intended to return to the more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d at 1192.

Judges may not grant motions to dismiss based merely on their “disbelief of a complaint’s factual allegations[,]” and “a well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely[.]” Twombly, 550 U.S. at 555 (citing Neitzke v. Williams, 490 U.S. 319, 327 (1989)). As this Court has instructed, “‘plausible’ cannot mean ‘likely to be true.’ Rather, plausibility in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).

In addition, on a motion to dismiss, a district court is required to consider and credit only the allegations in the amended complaint. “‘The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.’” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1991) (quoting Miller v. Glanz, 948 F.2d 1562 (10th Cir. 1991)).

To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show: (1) he is disabled within the meaning of the ADA; (2) he was qualified to perform the essential functions with or without reasonable accommodation; and (3) he suffered discrimination as a result of his disability. Koessel v. Sublette Cty. Sheriff’s Dep’t, 717 F.3d 736, 742 (10th Cir. 2013). At the complaint stage, “while Plaintiff is not required to set forth a prima facie case for each element, she is required to set forth plausible claims.” Khalik, 671 F.3d at 1188.

Iselin’s amended complaint contains factual assertions sufficient to allege an ADA claim that is “plausible on its face.” Twombly, 550 U.S. at 570. It is undisputed that Iselin alleged that he was disabled and that Bama rescinded its job offer as a permanent production worker and terminated his temporary position. Thus, the only issue on appeal is whether the district court erred in holding that Iselin failed to allege sufficient facts that he was qualified for the production worker job.

A “qualified individual” is someone “‘who, with or without reasonable accommodation, can perform the essential functions of the employment position that [he] holds or desires.’” Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 884 (10th Cir. 2015) (quoting 42 U.S.C. § 12111(8)). The “necessary first step is to identify the ‘essential functions’ of the position,” which is a “factual inquiry based on a number of factors.” EEOC v. Picture People, Inc., 684 F.3d 981, 997 (10th Cir. 2012). Those factors include: (1) the employer’s judgment as to which functions are essential; (2) written job descriptions; (3) the time spent performing the particular function; (4) the consequences if the individual cannot perform the function; (5) any collective-bargaining agreement; (6) the work experience of those in the position in the past; and (7) the current work experience of those in similar positions. Adair v. City of Muskogee, 823 F.3d 1297, 1307 (10th Cir. 2016) (citing 29 C.F.R. § 1630.2(n)(3)).

Evidence that an employee has performed a particular job in the past supports a finding that the employee was qualified for that job within the meaning of the ADA. Chalfant v. Titan Distrib., Inc., 475 F.3d 982, 990 (8th Cir. 2007) (evidence that plaintiff performed the essential functions of second shift supervisor with prior employer and that he performed the job duties of the same position with the new employer for a week before he was told he would not be hired after failing the physical exam supported jury’s finding that he was able to perform the essential functions of the job); D’Angelo v. Conagra Foods, Inc., 422 F.3d 1220, 1234 n.6 (11th Cir. 2005) (employee’s prior job performance working around moving equipment created question of fact as to whether she could perform the essential function of working around moving equipment); Rizzo v. Children’s World Learning Ctrs., Inc., 173 F.3d 254, 260 (5th Cir. 1999) (rejecting employer’s contention that hearing-impaired employee was not qualified to drive a school van where employee drove in the past with no record of any problems). Cf. EEOC Enforcement Guidance: Disability-Related Inquiries, No. 915.002 (July 27, 2000), available at www.eeoc.gov/policy/docs/guidance-inquiries.html (“Once an employee is on the job, his/her actual performance is the best measure of ability to do the job.”).

Iselin’s amended complaint alleges that he “was qualified to perform the essential functions of his position as a general production worker for Defendant, and he did perform these essential functions from January 7, 2015, until June 11, 2015.” Aplt.App. at 32 (AC ¶ 17); see also id. at 35 (AC ¶ 36) (“Plaintiff had been performing the essential functions of his job as a general production worker before being subjected to a physical examination.”). In addition, the amended complaint asserts that Bama offered Iselin a permanent position as a general production worker. Aplt.App. at 31 (AC ¶9).

Iselin’s factual allegation that he had performed the production worker job as a temporary worker competently enough to be offered a permanent position with the same job title, with a slightly higher rate of pay, makes plausible his claim that he was qualified for the permanent production worker job. See Joseph A. Seiner, Pleading Disability, 51 B.C. L. Rev. 95, 136 (2010) (arguing that a plaintiff need only “set forth in the complaint that she is qualified because she can perform the essential functions of the position” and stating that “[i]f the plaintiff is able to provide any factual description regarding her ability to perform the essential job functions (e.g. ‘I have been performing this position successfully for the past 6 months.’), it would further enhance her claim.”).

The district court’s finding to the contrary at this initial stage of the proceedings was incorrect and warrants reversal. The court granted Bama’s motion to dismiss after finding that it was not plausible that Iselin was qualified because he failed the company’s physical assessment test. In reaching this result, the court refused to credit the ample factual allegations in the amended complaint as true. It is a “bedrock principle that a judge ruling on a motion to dismiss must accept all allegations as true . . . .” Robbins, 519 F.3d at 1247. See also Iqbal, 556 U.S. at 678 (complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face); Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011) (all well-pleaded factual allegations in the complaint are accepted as true by the court and viewed in the light most favorable to the nonmoving party).

Ignoring this axiomatic principle, the district court relied upon Bama’s assertion in its motion to dismiss that anyone who failed the physical assessment test was not qualified to perform the essential functions of the production worker job. The district court accepted Bama’s assertion that passing its physical assessment test was a proxy for performing the essential functions of the production worker job. This was error.

The district court maintained that the ADA Amendments Act gives consideration to an employer’s judgment as to what functions of a job are essential. Aplt.App. at 67-68. But at this stage, there is no evidence and the court’s role is not to weigh the parties’ respective positions. Bama has not yet identified the job functions it considers essential, articulated any job functions, or provided a job description. Iselin’s allegations in the amended complaint must be accepted as true, not the employer’s views as stated in its motion to dismiss. Lebahn v. Nat. Farmers Union Uniform Pension Plan, 828 F.3d 1180, 1183 (10th Cir. 2016) (“[W]e inquire whether the complaint contains factual allegations that ‘state a claim to relief that is plausible on its face.’”). Thus, the court improperly credited Bama’s argument in its brief that the temporary production worker job was different than the permanent production worker job because the permanent position Iselin was rejected for was directly with Bama instead of the temp agency, was permanent and not temporary, and paid a higher hourly wage than the temporary position. That the permanent job was with Bama and paid slightly more per hour does not bear on whether the complaint stated a claim that was plausible. The district court improperly weighed the parties’ contentions on factual questions prior to discovery. Iselin’s amended complaint set forth “enough facts to raise a reasonable expectation that discovery will reveal evidence of [a violation].” Twombly, 550 U.S. at 556. [1]

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 3,261 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 2010 in Palatino Linotype 14 point.

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

Dated: December 7, 2016

[1] Even after discovery, the employer’s view of whether a job function is essential is “weighted heavily,” but is not conclusive. Adair, 823 F.3d at 1308. The district court relied upon Hawkins, 778 F.3d at 889, in maintaining that it “must defer to defendant’s judgment” and “cannot second guess defendant’s chosen method of determining whether plaintiff was qualified.” Aplt. App. at 68. But Hawkins states, “‘[D]espite our usual deference to an employer’s adoption of qualifications based on its judgment and experience, we have firmly held that ‘an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description.’” 778 F.3d at 889.