TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES............................................................................ iii

STATEMENT REQUESTING ORAL ARGUMENT..................................... vii

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

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

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

Statement of Facts ...................................................................................... 2

District Court’s Decision........................................................................... 11

SUMMARY OF ARGUMENT....................................................................... 13

ARGUMENT.................................................................................................. 15

I. Standard of Review............................................................................. 15

II. Summary judgment on the failure to accommodate claim was improper because there is evidence that the interactive process broke down due to Kohl’s’ refusal to consider the accommodation Manning needed………………………………………………………………………15

A. The schedule modification Manning sought

is a reasonable accommodation under the ADA..………………………………………………………………..16

B. Manning engaged in the interactive process in good faith………………………………………………………………….20

III. Summary judgment on the constructive discharge claim was improper because there is evidence that a reasonable person in Manning’s

position would have felt compelled to resign rather than risk

serious medical consequences that could ensue from Kohl’s’

refusal to change its schedule..……………………………………………..28

CONCLUSION............................................................................................... 34

CERTIFICATE OF COMPLIANCE............................................................... 35

CERTIFICATE OF SERVICE

ADDENDUM

TABLE OF AUTHORITIES

CASES Page(s)

Alvardo v. Donahoe, 687 F.3d 453 (1st Cir. 2012) ........................................ 28

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................................... 15

Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) (en banc),

judgment vacated on other grounds, 535 U.S. 391 (2002) ........................ 20

Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130 (7th Cir. 1996) ................ 21

Burlington Northern & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006) ................................................................................... 30

Colwell v. Rite Aid, 602 F.3d 495 (3d Cir. 2010) ...................................... 23,27

EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir.1997) ....................................... 15

EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005) ............ 21,23,27

Garcia-Ayala v. Lederle Parenterals, Inc.,

212 F.3d 638 (1st Cir. 2000) .................................................................... 18

Gile v. United Air Lines, Inc., 213 F.3d 365 (7th Cir. 2000) ............................ 17

Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990) ...................................... 15

Hurley-Bardige v. Brown, 900 F. Supp. 567 (D. Mass. 1995) ....................... 32

Marrero v. Goya of P.R., Inc., 304 F.3d 7 (1st Cir. 2002) .............................. 28

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ................................................................................. 15

Melendez-Arroyo v. Cutler-Hammer de P.R. Co.,

273 F.3d 30 (1st Cir. 2001) ...................................................................... 28

Mesnick v. General Electric Co., 950 F.2d 816 (1st Cir. 1991) ....................... 15

Norville v. Staten Island Univ. Hosp., 196 F.3d 89 (2d Cir. 1999) .................. 25

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ..................... 30

Pagonakis v. Express LLC, 315 F. App’x. 425 (3d Cir. 2009) ....................... 32

Parker v. Sony Pictures Entm’t, Inc., 260 F.3d 100 (2d Cir. 2001) ................. 25

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).......................... 28,31

Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001) ....................... 21,26

Ralph v. Lucent Tech., 135 F.3d 166 (1st Cir. 1998) ...................................... 17

Reed v. LePage Bakeries Inc., 244 F.3d 254 (1st Cir. 2001) ........................... 15

Schwarz v. Northwest Community Coll.,

881 F. Supp. 1323 (N.D. Iowa 1995) ....................................................... 32

Smith v. Henderson, 376 F.3d 529 (6th Cir. 2004) .................................... 31,32

Suárez v. Pueblo Int’l, Inc., 229 F.3d 49 (1st Cir. 2000) ................................ 28

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

542 F.3d 1099 (6th Cir. 2008) .................................................................. 31

U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) .................................... 17,18

Ward v. Mass. Health Research Inst., Inc.,

209 F.3d 29 (1st Cir. 2000) ................................................................. 17,19

STATUTES, REGULATIONS, & RULES

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

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

28 U.S.C. § 1337.............................................................................................. 1

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

42 U.S.C. § 2000e-5(f)(1) ................................................................................ 1

42 U.S.C. § 2000e-5(f)(3) ................................................................................ 1

Title I of the Americans with Disabilities Act,

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

42 U.S.C. § 12111(9)(B) ........................................................................... 16

42 U.S.C. § 12112(b)(5)(A).................................................................. 15,19

42 U.S.C. § 12117(a)................................................................................... 1

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

29 C.F.R.§ 1630.2(o)(2)(ii) ............................................................................ 16

29 C.F.R. § 1630.2(o)(3) ........................................................................... 16,20

29 C.F.R. Pt. 1630, App. § 1630.2(o)........................................................ 16,24

29 C.F.R. Pt. 1630, App. § 1630.9................................................................. 16

Fed. R. App. P. 4(a)(1)(B) ............................................................................... 1

Fed. R. App. P. 32.......................................................................................... 35

OTHER AUTHORITY

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002), available at

http://www.eeoc.gov/policy/docs/accommodation.html ............................ 18

MedlinePlus, Article on Diabetic Ketoacidosis

www.nlm.nih.gov/medlineplus/ency/article/000320.htm

(last visited May 7, 2014).......................................................................... 10

STATEMENT REQUESTING ORAL ARGUMENT

This case, arising under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., involves the interaction between employee and employer after the employee has sought a reasonable accommodation for a disability, and what significance a court should attach to each side’s actions. The employee here – Pamela Manning – sought a steadier work schedule because her erratic work shifts were causing health problems related to her diabetes. Managers at Kohl’s, the employer, flatly rejected the proposed accommodation and Manning, upset at the rejection, resigned. Resolution of this appeal turns on which one of two ways of looking at these facts this Court will adopt. Should Manning be faulted for her visible distress and lack of enthusiasm to engage further in accommodation discussions that were plainly pointless? Or should this Court adopt the reasoning of the Seventh Circuit and focus not on the “last act” in the interactive process, but instead on the employer’s prior actions in effectively shutting the door to any reasonable accommodation? The Commission believes that oral argument will assist the Court in resolving this summary judgment dispute.

STATEMENT OF JURISDICTION

The Commission brought this enforcement action under Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”). The district court had jurisdiction under 28 U.S.C. §§ 1331, 1337, and 1345, and 42 U.S.C.

§§ 2000e-5(f)(1) & (3) and 12117(a). On January 8, 2014, the district court granted summary judgment for Kohl’s. A1-A58.[1] Final judgment was entered the same day. A59. On March 7, 2014, the Commission filed a timely notice of appeal, under Fed. R. App. P. 4(a)(1)(B). A60. This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF ISSUES

1. Could a reasonable jury find that Kohl’s failed to engage in a good faith interactive process to consider a reasonable accommodation where Kohl’s unmistakably rejected Manning’s request for a more regular work schedule and steadfastly took the position that it could not modify its work schedules even though such modification would not pose an undue hardship?

2. Could a reasonable jury find that a reasonable person in Manning’s position would have felt compelled to resign rather than risk serious medical consequences that would ensue from her employer’s refusal to modify its scheduling rules?

STATEMENT OF THE CASE

This is an appeal from a final judgment of the U.S. District Court for the District of Maine. The Commission brought this ADA action alleging that Kohl’s, a national retail company, failed to make a reasonable accommodation for sales associate Pamela Manning’s disability (insulin-dependent diabetes) and constructively discharged her. Appx 19-24.[2] In January 2014, the court granted the company’s motion for summary judgment and entered judgment for Kohl’s. A1-A59.

Statement of Facts

Kohl’s Westbrook, Maine store had four salaried executives: the store manager and three assistant store managers. Appx 34 ¶ 5, R.78 ¶ 5. The majority of the store’s approximately 125 hourly associates were part-time employees. Appx 34-35 ¶¶ 5 & 10; R.78 ¶¶ 5 & 10. As a result, most sales associates scheduled to work on each shift were part-time. Appx 57 ¶ 8; R.78 ¶¶ 10, 11, & 12. Thirteen of the store’s hourly associates were full-time, and, of these, 11 were considered “full-time sales associates.” Appx 55-56 ¶¶ 4 & 5. Kohl’s guaranteed full-time associates at least 36 hours of work per week and they were entitled to certain employee benefits; Kohl’s did not guarantee part-time associates a minimum number of hours per week. Appx 36 ¶¶ 11 & 12; Appx 57 ¶¶ 9 & 10.

Pamela Manning has type I diabetes and has been diabetic for 37 years. Appx 210, 212, 292. Kohl’s hired Manning as a part-time employee at its Westbrook, Maine store in October 2006. Appx 41 ¶ 33; R.78 ¶ 33; Appx 470. While working part-time, the only accommodation for her diabetes Manning requested was a lunch break. R.78 ¶ 35; Appx 520-23.

On January 1, 2008, Kohl’s promoted Manning to a full-time sales associate, as a “Beauty Specialist.” Appx 41 ¶ 36; R.78 ¶ 36; Appx 231-32. Michelle Barnes, Westbrook’s assistant store manager for apparel and accessories, became Manning’s immediate supervisor. Appx 43 ¶ 43, Appx 60 ¶ 24; R.78 ¶ 43. Tricia Carr became Westbrook’s store manager in July 2008. Appx 55 ¶ 2.

As a full-time Beauty Specialist, Manning worked 36-40 hours a week and was often scheduled to work between 9 a.m. and 7 p.m. Appx 42 ¶ 37; R.78 ¶ 37; Appx 99, 478-79. Kohl’s occasionally scheduled her to work at night, and she worked every other weekend. Appx 478-79. Manning was responsible for overseeing the Beauty Department and assisting with price changes in that department. Appx 97-98, 231-32, 237-38. When doing price changes, Manning was required to work as early as 6 a.m. Appx 237-38. During 2008 and 2009, Manning was able to perform all duties of a Beauty Specialist (R.78 ¶ 39; Appx 234); she received good performance reviews and pay raises (R.78 ¶¶ 73, 74, & 75; Appx 284-863), and she did not have any issues with her work schedule, but on some days she did not get a break until six hours after her shift started. R.78 ¶ 42, ¶ 57; Appx 306-08, 495-96.

In January 2010, Kohl’s began implementing a nation-wide restructuring of hours and staffing in its Beauty Departments, resulting in fewer hours allocated to Beauty Departments in its stores. Appx 43 ¶ 44; R.78 ¶ 44; Appx 180; Appx 60 ¶ 25; Appx 66-67. The changes became effective “February week 1.” Appx 66. Store manager, Tricia Carr, and Manning’s supervisor, Michelle Barnes, met with Manning to explain that Kohl’s was eliminating the full-time Beauty Specialist position and reducing the number of hours allocated to Westbrook’s Beauty Department to 18 to 20 hours per week. Appx 43-44 ¶ 45; R.78 ¶ 45; Appx 489-92. They told Manning that to remain a full-time sales associate, she would have to work in other areas of the store where coverage was needed. Appx 489-91, 104-05; Appx 61 ¶ 26 (last two sentences of para. 26 excluded). Kohl’s planned to place Manning in another full-time position when one that suited her skill set became available. Appx 660 ¶ 15; Appx 544-45, 550; 556, 558-59, 568.

After the restructuring became effective in February 2010, Kohl’s scheduled Manning to work about half of her hours in the Beauty Department and to “float” among several departments for her remaining hours. R.78 ¶¶ 46 & 47. Her job duties did not change; Kohl’s just assigned her to work in other departments at the store. R.78 ¶ 48; Appx 105, 366; Appx 61 ¶ 27; Appx 493-94.[3] However, Manning’s work hours became more erratic. R.78 ¶ 47; Appx 246-47, 290, 493-94; 642, 644, 652-55. For example, although it is unclear why, sales projections for the Beauty Department called for more hours on nights and weekends and fewer hours during weekdays after the restructuring. Appx 61 ¶ 28. There is conflicting evidence as to whether evening and weekend shifts were the busiest and least desirable to sales associates (compared to mid-day shifts) (Appx 38 ¶ 20; Appx 58-59 ¶ 18; Appx 616-17, 621, 581-82), and whether all full-time sales associates worked a wide variety of shifts. Appx 35 ¶ 10; Appx 57 ¶ 8; Appx 412-13; R.78 ¶ 10; Appx 475-77.

In March 2010, Manning told her supervisor, Barnes, that she was having problems working her scheduled hours. Appx 45 ¶ 50; Appx 106-07, 247-50. Some of the shifts Manning worked around that time included: 6:00 a.m. to 2:00 p.m. on Wednesday, March 17; 6:30 p.m. to 10:30 p.m. on Friday, March 19; and 10:00 a.m. to 6:30 p.m. on Saturday, March 20. Appx 658 ¶ 4; 642. Manning told Barnes her difficulties were due to her diabetes and she needed a steady work schedule. Appx 107, 250. Barnes told Manning that if the schedule changes were affecting her health, she needed a doctor’s note to support her request for an accommodation. Appx 107.

On March 25, 2010, Manning went to see her endocrinologist, Dr. Brodsky. Appx 250-51. Brodsky’s office notes indicate that Manning was anxious and stressed and the stress was causing “high glucoses.” Appx 669. He also noted that among her stressors were Manning’s “job and its difficult schedule and that her glucoses are erratic but high overall, esp[ecially in the] past two months.” Id. Dr. Brodsky gave Manning a letter addressed to her store manager, Carr (Appx 665), and Manning put the letter on Carr’s desk on March 26. Appx 258-59. In the letter, Brodsky said he was writing to ask Carr’s assistance in accommodating Manning’s diabetes and, specifically, “I am asking that [Manning] be allowed to work a predictable day shift (9:00 a.m. to 5:00 p.m. or 10:00 a.m. to 6:00 p.m.).” Appx 665. Dr. Brodsky proposed these hours as examples or guidelines of the kind of schedule that would be acceptable. A21 & n.48; Appx 660 ¶ 14; Appx 720. His letter went on to explain that Manning’s diabetes control had “recently deteriorated” and she was having “difficulty matching her insulin action to her shifting work schedule in your store when she swings shifts (e.g., working late shift one day and returning for an early shift the next day).” Appx 720. He also explained that “[a] more predictable and regular schedule should help smooth her blood sugar and help prevent serious complications of the diabetes.” Id. Brodsky’s letter ended with the statement: “If I can provide additional information that would be helpful to you, please let me know.” Id.

On March 27, Carr contacted Michael Treichler, the Westbrook store’s corporate Human Resources Manager, for guidance. Appx 75. On March 29, Treichler responded to Carr by email: “[c]learly we can not [sic] have her not work nights. BUT, we can work with her to avoid the ‘swing shifts’ – A close followed by an opening. Would you be able to speak with [Manning] about that option?” Appx 76. It is Kohl’s general practice that sales associates typically are not scheduled to work a closing shift at night immediately followed by an opening shift the next morning.[4] Appx 402-03. Treichler did not tell Carr that Manning had to work closings. Appx 401.

However, Treichler testified in deposition that full-time sales associates needed “the [scheduling] availability wide open to include days, mids, nights, closes and everything in between.” Appx 660 ¶ 14; Appx 626, 376-79. Although Treichler also testified that “[t]here were always part-time employees to cover” evenings (Appx 660 ¶ 19; Appx 439), he said “[t]he idea that [Manning] could only work those day hours was off the table because we don’t have a job like that” (Appx 437) and he “knew that [Kohl’s] could not just do day shifts.” Appx 439. The Commission presented evidence that wide open scheduling availability was not a strict requirement for full-time sales associates because Kohl’s made exceptions pretty regularly, Kohl’s did not require Manning to have open availability as a full-time Beauty Specialist, and Kohl’s did not inform Manning of such a requirement when she became a full-time sales associate. R.78 ¶ 13, ¶ 15, & ¶ 16; Appx 660 ¶ 16; Appx 629-31, 445, 447-50, 539-41, 478-79, 491-92. It is undisputed that Kohl’s did not consider the financial cost of Manning’s requested scheduling accommodation before rejecting it. Appx 437-40.

On March 31, Carr and Barnes met with Manning to discuss Dr. Brodsky’s letter. Appx 47-48 ¶ 58; R.78 ¶ 58; Appx 253, 261; Appx 661 ¶ 22; Appx 657. During the meeting, Manning asked to be given a more regular schedule (Appx 661 ¶ 22; Appx 303) and not be scheduled for swing shifts. Appx 495-506, 303. She also was willing to work on weekends. Appx 508; see also Appx 680 ¶ 17. Manning said she did not understand why she could not have a more consistent day-to-day schedule. Appx 661 ¶ 22; Appx 657. For example, Manning testified that she asked Carr to modify her current schedule on two specific days when she was scheduled to work from 12 p.m. until 10:30 p.m. on April 2 (Appx 654), and from 4 a.m. to 12:30 p.m. on April 5. Appx 655; R.78 ¶ 58. She asked for permission to work until 8 p.m. (instead of 10:30 p.m.), and to come in at 6 a.m. (instead of 4 a.m.) (R.78 ¶ 58, ¶ 60; Appx 308-09; 503-04, 506, 508-09), but Carr denied this request. Appx 509-10.

Manning also testified that neither Carr nor Barnes tried to discuss other scheduling accommodations or offer alternatives; they just rejected her requests. R.78 ¶ 60; Appx 501-06, 508-10, 516-18. Carr told Manning she checked with corporate (Appx 303; R.78 ¶¶ 60, 66, & 68; Appx 501, 503, 516-17; 142, 147, 308-09; 114-15; 458-59), and that “the needs of the business dictate whe[n] she worked [and] would require at times shifts that are early, days, mids, and closes” (Appx 661 ¶ 22; Appx 657); that Kohl’s could not give her a steady 9 a.m. to 5 p.m. or 10 a.m. to 6 p.m. schedule (Appx 660 ¶¶ 21 & 22; Appx 303); and that if she gave Manning what she wanted, she would have to do the same for everyone. Appx 50 ¶ 61; R.78 ¶ 60; Appx 303, 501-06, 508-10, 516-18. Manning also testified that Carr did not discuss swing shifts or regular breaks during the meeting. R.78 ¶ 59; Appx 508-09.

When Carr said she had talked to corporate and could not provide the type of schedule Manning requested, Manning understood Carr’s statements to mean that Kohl’s was not going to approve her request for a steady schedule. R.78 ¶ 60; Appx 501-03, 512-13, 515-16; 303; 47-49 ¶¶ 58, 59, 60, 61, & 62. After listening to Carr, Manning became upset and told Carr she had no choice but to quit because she was concerned that if she kept working her current schedule, she would either go into ketoacidosis[5] or a coma. Appx 48 ¶ 61; Appx 262-63; 303; 458. When Carr asked Manning to put her resignation in writing, Manning put her keys to the store on a table, walked out of Carr’s office, and slammed the door. Appx 262-63; 303; 458

Carr followed Manning into the break room and asked what she could do (Appx 49 ¶ 62; 163, 303); Carr said she wanted Manning to calm down, reconsider her resignation, and discuss other possible accommodations. Appx 163. Manning responded, “Well, you just told me [c]orporate won’t do anything for me,” and Carr was getting what she wanted. Appx 458-59; 501 03, 509, 651. Manning then cleaned out her locker and left the building. Appx 268.

A few days after the March 31 meeting, Treichler asked Carr to contact Manning to give her the opportunity to return to work. Appx 49 ¶ 65; R.78 ¶ 65; Appx 425-27. On April 9, 2010, Carr called Manning and asked her to reconsider her resignation and consider other possible accommodations for both full- and part-time employment. Appx 50 ¶ 66; Appx 511-513. Manning asked Carr about her schedule, and Carr replied that they would have to consult with the company’s corporate office about any accommodations. Appx 511-12, 515-16. After this conversation, Manning did not call Carr or contact anyone else with Kohl’s. Appx 50 ¶ 67; R.78 ¶ 67; Appx 513. There is evidence that Manning did not contact Kohl’s after Carr’s phone call because Carr said nothing to suggest that Kohl’s had reconsidered its denial of her request for a stable schedule. Appx 501-03, 511-13, 515-18. Kohl’s treated Manning as having voluntarily resigned (Appx 430); it terminated her employment sometime in April 2010, and reassigned her duties to two part-time associates. Appx 598-99.

The Commission filed suit on August 23, 2011. Appx 19.

District Court’s Decision

On January 8, 2014, the district court granted summary judgment and entered judgment for Kohl’s. A1-A59. The district court noted that Kohl’s did not dispute that Manning was “disabled” under the ADA due to her diabetes. A39 n.78. The district agreed with the Commission that there were a number of disputed issues of material fact precluding summary judgment, including: whether “open availability” to work at anytime, day or night, was an essential function of the full-time sales associate position (A38-A43); whether Manning could have performed the essential functions of her job with her proposed accommodation – a more regular and predictable work schedule (A43-A46); and whether the proposed scheduling accommodation was reasonable (A46-A48). The court also emphasized the lack of evidence that making a scheduling modification for Manning would have created an undue hardship for Kohl’s. A25, A42, A48.

However, the district court concluded that Kohl’s was entitled to summary judgment on the Commission’s failure to accommodate claim because it held that Manning failed to engage in the interactive process and was responsible for its breakdown. A48-A53. The court said the record reflected that Kohl’s was “anxious to continue discussions” with Manning about whether it could make changes in her schedule that would satisfactorily accommodate her disability. A52. The court noted a number of matters it said could have been discussed, including what limits Manning’s doctor would have imposed on her work schedule if he had been called into the interactive process, and whether part-time employment would have been an option. A52-A53. The court said the reason answers to these questions were not a matter of record was Manning’s, not Kohl’s’, unwillingness to engage in the interactive process. A53.

The district court also ruled that because summary judgment was appropriate on the failure to accommodate claim, summary judgment must follow on the constructive discharge claim. A53 n.82. The court further described Manning’s decision to leave Kohl’s as “a moment of pique” (A56), and stated that the “uncontroverted facts showed that Manning got angry and quit, and then refused to reconsider or discuss potential accommodations.” A57. The court concluded, a reasonable person in Manning’s position would not have resigned, “cast a deaf ear on her employer’s importuning” to talk about reasonable accommodations, and left her employer “never to return.” A57.

SUMMARY OF ARGUMENT

The district court concluded that jury questions exist as to whether Manning was qualified to perform the essential functions of her job with the reasonable accommodation of a more stable work schedule, which was feasible for Kohl’s to provide without undue hardship. Because there is record evidence that “open availability” was not an essential function of a full-time sales associate job, that Manning’s request for a more stable schedule was both feasible and reasonable, and that this accommodation was not an “undue hardship” – the court’s conclusion was proper.

Where the court erred was in its assessment of the interactive process between Manning and Kohl’s. The court discounted the role that Kohl’s managers played in the interactive process’ breakdown: those managers drew a line in the sand and refused to consider a steadier schedule for Manning. The court instead focused its attention on the “last act” in the interactive process, namely Manning’s visible frustration at her managers’ recalcitrance. The court should not have let Manning’s frustration distract it from the critical evidence that Kohl’s had already ended any meaningful dialogue due to its refusal to consider the accommodation that Manning needed. Summary judgment on the failure to accommodate claim therefore was erroneous.

For much the same reasons, the court erred in granting summary judgment to Kohl’s on the related constructive discharge claim. Given the evidence that Manning had to choose between continuing to work an erratic schedule for Kohl’s and serious risks to her health, there is a fact issue as to whether a reasonable person in Manning’s position would have felt compelled to resign. The court should have factored Manning’s personal medical circumstances into the determination of whether the company’s refusal to consider assigning her more regular shifts created an intolerable situation. The court’s failure to take these factors into account comprises reversible error.

ARGUMENT

I. Standard of review

This Court reviews a district court’s grant of summary judgment de novo. EEOC v. Amego, Inc., 110 F.3d 135, 141 (1st Cir. 1997). As the moving party, Kohl’s bears the burden of proving that no genuine issue of material fact exists, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10 (1986), and all doubts must be resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Accordingly, as this Court has said, the court of appeals “‘must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.’” Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)).

Under the ADA, an employer commits unlawful disability discrimination if it “does not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified [employee] with a disability.” 42 U.S.C. § 12112(b)(5)(A); Reed v. LePage Bakeries Inc., 244 F.3d 254, 257 (1st Cir. 2001). 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 enjoy equal employment opportunities.” 29 C.F.R. Pt. 1630, App. § 1630.2(o). How employees and employers arrive at an accommodation acceptable to both sides often will entail an “interactive process” between employee and employer. 29 C.F.R. § 1630.2(o)(3). In this case, Manning sought a change in the way Kohl’s customarily manages its employees’ work schedules – she sought a more steady and predictable work schedule. Kohl’s managers flatly denied her request, telling Manning they could not alter their customary practice. In so doing, it was Kohl’s that effectively slammed the door on the interactive process. To hold, on summary judgment, that Manning was to blame for the breakdown in the interactive process was erroneous.

A. The schedule modification Manning sought is a reasonable accommodation under the ADA.

When Manning requested a modification of her work schedule, she was requesting a type of reasonable accommodation plainly encompassed by the ADA. Congress expressly provided that the term “reasonable accommodation” includes modifications of work schedules. See 42 U.S.C. § 12111(9)(B) (reasonable accommodations may include “modified work schedules,…. and other similar accommodations”); see also 29 C.F.R.§ 1630.2(o)(2)(ii) (same); 29 C.F.R. Pt. 1630, App. § 1630.9 (accommodations require alleviation of barriers to equal employment opportunity, and such barriers include “rigid work schedules that permit no flexibility as to when work is performed”).

This Court frequently has recognized that a modified work schedule is a form of reasonable accommodation, and an employer’s duty to provide reasonable accommodation is a continuing one. See Ralph v. Lucent Tech., 135 F.3d 166, 172 (1st Cir. 1998); Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 34-38 (1st Cir. 2000) (summary judgment for employer reversed where employee sought flexible schedule as reasonable accommodation); see also Gile v. United Air Lines, Inc., 213 F.3d 365, 372-73 (7th Cir. 2000) (upholding liability verdict for an employee with anxiety disorder and insomnia, which affected her sleep pattern when she worked the night shift, who could have performed the essential functions of her job with the reasonable accommodation of a shift change to days).

In this case, the district court properly held a reasonable fact-finder could conclude that Manning requested a “more regular and predictable schedule” encompassing working hours well beyond 9:00 a.m. to 6:00 p.m. (A43-A44); Manning could have performed her essential job functions as a full-time sales associate with such a schedule accommodation (A45-A46); and such accommodation was “reasonable” and “feasible” for Kohl’s to provide. A46-A48; id. at A47 (quoting 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”) (internal punctuation and citation omitted). Kohl’s flatly denied Manning’s requested schedule adjustments, telling Manning that if it gave her a modified schedule, it would have to do the same for everyone else. Appx 501-03, 511-13, 515-17. This statement from a Kohl’s manager (Carr) reflects a basic misunderstanding of what it means to make a reasonable accommodation. As the Supreme Court explained in Barnett, “[b]y definition any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially. And the fact that the difference in treatment violates an employer’s disability-neutral rule cannot by itself place the accommodation beyond the Act’s potential reach.” U.S. Airways, Inc. v. Barnett, 535 U.S. at 397. See also EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html (An employer must provide a modified schedule when required as a reasonable accommodation, “even if it does not provide such schedules for other employees.”). Likewise, in Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646-47 (1st Cir. 2000), this Court rejected, as “flatly wrong under our precedent,” an employer’s argument that “the ADA can never impose an obligation … to grant an accommodation beyond the leave allowed under the company’s own leave policy.” And Kohl’s’ position also is “flatly wrong” – its “open availability” rule is subject to modification under the ADA if necessary to provide a reasonable accommodation, absent evidence of undue hardship.

Of course, Kohl’s could legitimately decline to give Manning a more regular schedule if such an accommodation would pose an undue hardship for the company. See 42 U.S.C. § 12112(b)(5)(A). Undue hardship is an employer’s burden to show, id., and here the district court concluded that “there is little evidence that Kohl’s would have been burdened by accommodating Ms. Manning’s request—besides bare assertions made by Kohl’s employees that such an accommodation would not have been possible—and … Kohl’s did not consider the cost of accommodating Ms. Manning.” A48. This Court has rejected generalized assertions as insufficient to establish undue hardship. Ward, 209 F.3d at 36-37 (rejecting employer’s general arguments about the snowball effects of providing employee’s requested flexible schedule accommodation – that it would eliminate employers’ control over the workplace and ability to maintain any standards). As this Court recognized in Ward, “[s]uch an argument runs counter to the general principle behind the ADA that imposes a duty on the employer to modify some work rules, facilities, terms, or conditions to enable a disabled person to work, and if defendant’s position were given credence, it would defeat almost any reasonable accommodation.” Id.

B. Manning engaged in the interactive process in good faith.

Despite holding that material issues of fact exist on the Commission’s failure to accommodate claim, the district court nevertheless granted summary judgment to Kohl’s because it held that it was Manning – and not Kohl’s – who failed to engage in an interactive process. A48-A53. The record does not support the court’s conclusion. To the contrary, after Manning requested a scheduling accommodation, record evidence shows that Kohl’s made minimal efforts to communicate with her, no effort to seek input from her doctor, and no offers to accommodate her medical condition with scheduling changes. A reasonable jury could find that Kohl’s was the party responsible for the breakdown in the interactive process, and, therefore, summary judgment was inappropriate.

ADA regulations provide that “[t]o determine the appropriate reasonable accommodation [for an employee,] it may be necessary for the [employer] to initiate an informal, interactive process with the [employee].” 29 C.F.R. § 1630.2(o)(3). The purpose of this process is to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Id. For that purpose, “[t]he interactive process requires communication and good-faith exploration of possible accommodations.” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000) (en banc), judgment vacated on other grounds, 535 U.S. 391 (2002). Both parties have a duty to participate in good faith, Phelps v. Optima Health, Inc., 251 F.3d 21, 27-28 (1st Cir. 2001), and “‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.’” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805-06 (7th Cir. 2005) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)).

The district court, in assigning responsibility to Manning, focused on the dramatic aspects of the case. In particular, the court concluded that the “interactive process was not entered into because Ms. Manning literally slammed the door on it” (A52), that Kohl’s was “anxious” to continue discussions with Manning about whether it could make changes in her schedule that would satisfactorily accommodate her disability (id.), and that “once Ms. Manning bolted from Kohl’s, Kohl’s could not interact with itself.” A53. What the district court ignored, though, is that, in perhaps less dramatic fashion, Kohl’s already had shut down prospects for effective accommodation.

“The last act in the interactive process is not always the cause of a breakdown, ... and courts must examine the process as a whole to determine whether the evidence requires a finding that one party’s bad faith caused the breakdown.” Sears, 417 F.3d at 806. Here Manning engaged properly in the interactive process and only took her “last act” of slamming the door after Kohl’s clearly rejected her proposed accommodation. Specifically, Manning initiated the interactive process by requesting a “more regular and predictable schedule,” which encompassed working hours well beyond 9:00 a.m. to 6:00 p.m. schedules, and weekends. Appx 501-02, 508-10, 517-18, 308. The district court mischaracterized the accommodation Manning sought when it stated that “Manning cooperated with Kohl’s up to the time that Kohl’s declined to schedule her on the day shift.” A51 (emphasis added). As the court’s own rulings show, there is evidence that Manning sought to be scheduled in a more regular and predictable window of time, not on day shifts. A44.

More significantly, there is a reasonable question on this record whether Kohl’s ever entered into a good faith interactive process in the first place – it rejected Manning’s doctor’s request for a more predictable work schedule before even speaking with her and without considering if the cost of the requested accommodation would cause undue hardship. And as the court stated, “there is little evidence that Kohl’s would have been burdened by accommodating Ms. Manning’s request—besides bare assertions made by Kohl’s employees that such an accommodation would not have been possible.” A48. Treichler testified that “[t]here were always part-time employees to cover” evenings (Appx 439), but he said “[t]he idea that [Manning] could only work those day hours was off the table because we don’t have a job like that.” Appx 437.

Kohl’s clearly communicated to Manning that it would not accommodate her scheduling needs and, instead, inflexibly maintained that “open availability,” or availability to work all shifts, was required for Manning to remain employed as a full-time sales associate. Thus, there is sufficient evidence in this case from which a jury could conclude that it was not, in fact, Manning’s “last act” that caused the interactive process breakdown. A reasonable fact-finder could conclude that, as a result of what Carr told her, Manning reasonably concluded that Kohl’s had already shut the door on her accommodation request and there was nothing further she could say.

In a similar context, the Third Circuit held that where an employee sought reassignment to work during day-light hours and her supervisor flatly refused, “[a] reasonable jury … could conclude that Rite Aid failed in its obligations to engage in the interactive process required under the ADA.” Colwell v. Rite Aid, 602 F.3d 495, 507 (3d Cir. 2010). Here too a jury could conclude that Kohl’s failed in its obligations by steadfastly rejecting Manning’s request to modify her schedule and offering no alternatives that would accommodate her diabetes. Indeed, the evidence supports the conclusion that Manning could not interact with herself after Kohl’s flatly rejected her request for a more regular schedule. See also Sears, 417 F.3d at 807–08 (employer was responsible for breakdown of interactive process where store denied employee’s requested accommodation, suggested only actions that did not accommodate her condition, and subsequently argued that she should have argued harder to force them to change positions).

The district court also posed a number of additional questions that, according to the court, might have been considered had Manning persisted. The court posited that swing shifts might have caused Manning stress, and noted that Kohl’s offered to avoid scheduling Manning on “swing shifts.” A53. There is evidence that Kohl’s did not ever communicate this offer to Manning.

Appx 267, 508-09. But even if it did, this would not be an accommodation because it did not involve any change in the way things are customarily done by Kohl’s, nor is there evidence it would have enabled Manning to perform her job without the disability-related problems that an erratic schedule caused her. See 29 C.F.R. Pt. 1630, App. § 1630.2(o).

The court posited that an accommodation might have been reached if Manning’s doctor had become more involved in discussions with Manning and Kohl’s. A53. But there is no evidence in this record that Kohl’s ever sought further input from Manning’s doctor once Manning fulfilled her supervisor’s request and obtained a medical statement to support her accommodation request. Kohl’s neither asked Manning to obtain additional information from Dr. Brodsky nor sought permission to speak with Dr. Brodsky directly to clarify answers to any questions material to the accommodation process. If more medical information was actually necessary, it was Kohl’s that failed to follow up on Brodsky’s offer to provide additional information, and summary judgment was inappropriate on this basis. See Parker v. Sony Pictures Entm’t, Inc., 260 F.3d 100, 113-14 (2d Cir. 2001) (if there is a dispute as to whether the breakdown in the interactive process was caused by the employee’s failure to produce medical reports or the employer’s failure to ask for them, the factual dispute must be resolved by a fact-finder, which precludes summary disposition).

The court also posited that the interactive process might have resolved whether part-time employment would have been an option. A53. That option was raised in the April 9 phone call. On that date, Carr contacted Manning by phone, at Treichler’s request, asking Manning to reconsider her resignation. Carr specifically asked Manning to consider part-time employment as an accommodation. However, an employer may not require an employee to give up full-time status as an accommodation if it can reasonably accommodate the employee in her full-time position without undue hardship. The law is plain that “an offer of an inferior position,” such as a transfer to part-time work, 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). 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). Aside from part-time work, Carr did not suggest any other specific accommodations.

During the April 9 phone call, after Carr asked Manning to reconsider her resignation, Manning replied by asking Carr about her schedule. Appx 270. Carr said they would have to consult the company’s corporate office about any accommodation, and offered nothing to suggest that “corporate” had reconsidered its position on the open scheduling “requirements” or Manning’s request for a more predictable schedule. Appx 501-03, 511-13, 515-17. There is record evidence that this was the reason Manning decided not to contact Kohl’s again. Id. Indeed, given the company’s steadfast instance that wide-open scheduling availability was required for all full-time sale associates, it is difficult to imagine what “other accommodations” Kohl’s sought to have Manning consider since it offered none. The district court’s reliance on Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001), was misplaced. Unlike Manning, in Phelps, “the employee conceded that ‘it was she who failed to cooperate’” in an interactive process. A49 (quoting Phelps, 251 F.3d at 27). Manning makes no such concession.

While the district court focused on the company’s “anxious” efforts to continue discussions with Manning, a reasonable fact-finder could conclude that the company’s asserted desire to engage in discussions with Manning was form over substance. Kohl’s claimed it wanted to talk about possible accommodation options; at the same time, it refused to consider the accommodation Manning and her doctor identified as the most likely to be effective, which required adjustments to the scheduling “requirements.” Throughout, Kohl’s maintained an inflexible position on scheduling despite the absence of any evidence of undue hardship. A jury thus could find the company’s stated eagerness to engage in a dialogue with Manning disingenuous. In particular, a jury could conclude that the company’s April 9 telephone call was nothing more than an empty gesture, and that Kohl’s did not genuinely engage in a good faith interactive process designed to accommodate Manning’s medical needs. The fact that Manning conveyed her dismay and declined to enter into plainly pointless further discussions does not mean it was she who ended the interactive process. See Sears, 417 F.3d at 805-06 (courts must examine the interactive process as a whole, but the “last act” is not always the cause of a breakdown).

In sum, viewing the record as a whole, there is evidence from which a jury could decide that it was Kohl’s that was responsible for the breakdown in the interactive process. Under these circumstances, with conflicting evidence on the interactive process, “[a] fact-finder must settle that dispute.” See, e.g., Colwell, 602 F.3d at 508.

III. Summary judgment on the constructive discharge claim was improper because there is evidence that a reasonable person in Manning’s position would have felt compelled to resign rather than risk serious medical consequences that could ensue from Kohl’s’ refusal to change its schedule.

To prove constructive discharge, a plaintiff must usually “show that her working conditions were so difficult or unpleasant that a reasonable person in [her] shoes would have felt compelled to resign.” Marrero v. Goya of P.R., Inc., 304 F.3d 7, 28 (1st Cir. 2002) (internal quotation marks omitted); see Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30, 36 (1st Cir. 2001). The standard is an objective one. Pennsylvania State Police v. Suders, 542 U.S. 129, 140-41 (2004). An employee’s subjective beliefs alone do not establish that a constructive discharge occurred. Marrero, 304 F.3d at 28; Suárez v. Pueblo Int’l, Inc., 229 F.3d 49, 54 (1st Cir. 2000).

The district court ruled that summary judgment was appropriate on the Commission’s constructive discharge claim because it was appropriate on the failure to accommodate claim. A54 n.82, citing Alvardo v. Donahoe, 687 F.3d 453, 465 (1st Cir. 2012) (where plaintiff did not establish a hostile work environment, he could not show constructive discharge based on hostile work environment). The court also held that summary judgment was appropriate because the court could not find that a reasonable person in Manning’s position would have resigned. The court described Manning’s decision to leave Kohl’s as one made in “a moment of pique,” and ruled that the “uncontroverted facts showed that Manning got angry and quit, and then refused to reconsider or discuss potential accommodations.” A56-A57. Therefore, the court concluded, a reasonable person in Manning’s position would not “have resigned, … cast a deaf ear on her employer’s importuning [to talk about reasonable accommodations], and … left her employer never to return.” A57.

In reaching this conclusion, the court failed to consider contrary evidence, as required at summary judgment. The court acknowledged that Manning told Carr that Kohl’s was giving her “no choice but to quit” because Manning was concerned that if she continued working her current schedule, she would go into either ketoacidosis or a coma. Appx 48-49 ¶ 61; 263, 499-501, 651. The court also acknowledged evidence that Manning has type I diabetes and her “diabetes control [had] recently deteriorated.” Appx 302; 665, 669. However, the court treated Manning’s serious health concerns dismissively and, instead, highlighted her moment of irritation when she learned that her employer seemingly was indifferent to those concerns.

And Manning’s work-related health concerns were reasonable and not solely subjective. They were documented and supported by her physician, Dr. Brodsky. Appx 665, 669. As noted, Manning was taking five injections of insulin daily, timed to match her meals and activity. Dr. Brodsky’s notes from his office visit with Manning the week before her meeting with Carr and Barnes indicated that Manning was anxious and stressed and that the stress was causing high blood glucoses. He wrote that she had many stressors including her job and its difficult schedule and that her glucoses were erratic but high overall, especially in the past two months. The timing – the past two months – coincided with the changes in her job schedule, and Brodsky noted that Manning’s diabetes control had “recently” deteriorated. In deciding that a reasonable person in Manning’s position would not have resigned, the court erroneously ignored record evidence that Manning was faced with a choice of continuing her employment, notwithstanding her employer’s clear denial of her (and her doctor’s) request for a more stable schedule, and serious risks to her health.

Moreover, as the Supreme Court has observed, context matters in employment discrimination cases. See, e.g., Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (retaliation claim) (“a schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children”); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) (harassment claim) (“The real social impact of the workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of words used or the physical acts performed.”). Likewise, context matters in constructive discharge cases because such a claim turns not only on whether plaintiff’s response is objectively reasonable, Suders, 542 U.S. at 141, but also on the reactions of “a reasonable person in the employee’s position.” Id. The district court should have factored Manning’s personal medical circumstances, which created the need for the accommodation, into the determination of whether the company’s refusal to assign her to more regular shifts created an intolerable situation.

Given the serious health ramifications to Manning of her employer’s refusal to accommodate her, the Commission’s evidence surrounding the denial of reasonable accommodation should have sufficed to show constructive discharge. As the Sixth Circuit explained in Smith v. Henderson, 376 F.3d 529, 534 (6th Cir. 2004), where, as here, the employee alleged that her employer failed to reasonably accommodate her disability as required by the Rehabilitation Act and that the failure to accommodate precipitated her involuntary resignation, “the central issue is whether the [employer’s] alleged … refusal to provide[] a reasonable accommodation converted plaintiff’s resignation into a constructive discharge.”

The facts in this case echo those of cases where courts have found a constructive discharge resulted from a failure to provide reasonable accommodation. See, e.g., Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1109 (6th Cir. 2008) (“When Talley was told … that she would not be allowed to use a stool, she may reasonably have believed that she would either have to work her entire shift without a stool – conditions she alleges were intolerable due to severe pain – or resign,” and “a reasonable jury could infer that the defendants knew that [the plaintiff’s] working conditions would become intolerable to a reasonable person suffering from her particular disability.”); Smith v. Henderson, 376 F.3d at 537-38 (where employer’s denial of employee’s request for reasonable accommodation “forced her to work well in excess of her medical restrictions,” and employer knew her working conditions would become intolerable to “reasonable person suffering from her particular disability,” a reasonable jury could find employee’s resignation because of employer’s refusal to accommodate employee constituted constructive discharge); Pagonakis v. Express LLC, 315 F. App’x. 425, 430 n.4 (3d Cir. 2009) (“[t]o the extent Pagonakis asserts that Express’ alleged failure to accommodate … resulted in her constructive discharge, she may present that theory to a jury”); Schwarz v. Northwest Community Coll., 881 F. Supp. 1323, 1339 (N.D. Iowa 1995) (plaintiff with night blindness alleged constructive discharge due to change from day to night shift; court denied summary judgment because reasonable person in plaintiff’s position could have found it intolerable to work the evening shift where the shift change “placed particular burdens on [plaintiff] because of a physical problem”); Hurley-Bardige v. Brown, 900 F. Supp. 567, 573 n.7 (D. Mass. 1995) (“The Court can certainly imagine instances where the failure to make reasonable accommodation, by itself, could create a working environment so hostile that a reasonable employee would resign his or her position.”) (posing example of employer refusing to transfer employee with respiratory condition to a smoke-free work station).

Accordingly, a jury could decide on this record that a reasonable person in Manning’s position, with her medical condition, would have felt compelled to quit her job due to her employer’s rigid refusal to modify her schedule, despite medical information indicating that Manning risked serious medical consequences by maintaining her erratic work schedule. Therefore, summary judgment on the Commission’s constructive discharge claim should be reversed.

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 /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 will refer to its Addendum, which is attached to this brief, as “A[at page number in the Addendum].”

[2] The Commission will refer to items in the Appendix as “Appx [at page number].”

[3] In general, the job responsibilities of both full-time and part-time sales associates in most departments included ensuring that: fitting rooms were monitored and merchandise returned to its proper place; additional coverage was provided at sales registers when lines of customers developed; customer questions and returns were handled properly; and store set-up requirements were timely completed. Appx 35 ¶ 8, 56-57 ¶ 6; R.78 ¶ 8; Appx 475-77, 482-85. Sales associates also processed returns to vendors and assisted making price changes on merchandise. Appx 475-77, 484-85. Some full-time sales associates, including Manning at times, were considered supervisors or lead persons because they led or directed the work of part-time sales associates and were responsible for the work load on the sales floor; however, they did not have authority to hire, discipline, or discharge part-time sales associates. Appx 35 ¶ 9, 56-57 ¶¶ 6-7; Appx 179-81; R.78 ¶¶ 8-9; Appx 480, 482-87, 508; Appx 44-45 ¶ 49.

[4] The hours varied but generally the Westbrook store closed at 11 p.m. and opened at 7 a.m., and had extended hours during the holidays and during price changes. Appx 38 ¶ 19; R.78 ¶ 19.

[5] Diabetic ketoacidosis “is a life-threatening” condition that “occurs when the body cannot use sugar (glucose) as a fuel because there is … not enough insulin. Fat is used for fuel instead” and when fat breaks down in the body, “acids called ketones build up in the blood and urine. In high levels, ketones are poisonous.” www.nlm.nih.gov/medlineplus/ency/article/000320.htm (last visited May 7, 2014).