TABLE OF CONTENTS

Page(s)

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

ARGUMENT.................................................................................................... 1

I. Record evidence shows that Manning could have performed the essential functions of her job with a reasonable schedule modification, but Kohl’s terminated the interactive process when it flatly refused to consider that accommodation………..………....…………………………………………4

A. A schedule modification would have allowed Manning to perform the essential functions of her job..……………………………………….5

B. Manning engaged in the interactive process in good faith………………………………………………………………….11

1. The March 31 meeting...……………………………………..11

2. April 9 phone call…..………………………………………...15

II. There is record evidence that a reasonable person in Manning’s position would have felt compelled to resign rather than continue working erratic schedules and risking serious medical consequences of diabetes that could ensue from Kohl’s’ refusal to change its schedule………………………..18

CONCLUSION…………………………………………………………………..24

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page(s)

Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6 (1st Cir. 2004) ................. 15

Colwell v. Rite Aid, 602 F.3d 495 (3d Cir. 2010) ...................................... 17,18

Downey v. Bob’s Discount Furn. Holdings, Inc., 633 F.3d 1 (1st Cir. 2011) .... 7

EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005) ................. 17,18

Garcia-Ayala v. Lederle Parenterals, Inc.,

212 F.3d 638 (1st Cir. 2000) .................................................................... 10

Griffin v. United Parcel Service, Inc., 661 F.3d 216 (5th Cir. 2011) ............... 16

Hrichak v. Pion, 498 F. Supp. 2d 380 (D. Me. 2007) ...................................... 7

Jones v. Walgreen Co., 765 F. Supp. 2d 100 (D. Mass. 2011) ....................... 10

Marrero v. Goya of P.R., Inc., 304 F.3d 7 (1st Cir. 2002) .............................. 20

Norville v. Staten Island Univ. Hosp., 196 F.3d 89 (2d Cir. 1999) .................. 15

Parker v. Sony Pictures Entm’t, Inc., 260 F.3d 100 (2d Cir. 2001) ................. 16

Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001) ............................ 12

Richardson v. Friendly Ice Cream Corp., 594 F.3d 69 (1st Cir. 2010) ......... 9,10

Smith v. Henderson, 376 F.3d 529 (6th Cir. 2004) ......................................... 23

Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190 (1st Cir. 2011) ................ 4

STATUTES, REGULATIONS, & RULES

Title I of the Americans with Disabilities Act,

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

42 U.S.C. § 12111(9)(B) ........................................................................... 14

42 U.S.C. § 12112(b)(5)(A)......................................................................... 4

29 C.F.R. § 1630.2(o)(1)(iii) ........................................................................... 15

29 C.F.R. § 1630.2(m) ..................................................................................... 9

29 C.F.R. Pt. 1630, App. § 1630.2(o)............................................................... 4

Fed. R. Civ. P. 26(a)(2)(A)................................................................................ 6

Fed. R. Civ. P. 26(a)(2)(B)................................................................................ 7

Fed. R. Evid. 701(a)........................................................................................ 19

Fed. R. Evid. 201(b)(2) .................................................................................. 19

Fed. R. Evid. 201(d) ....................................................................................... 19

OTHER AUTHORITY

MedlinePlus, Article on Diabetic Ketoacidosis

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

(last visited May 7, 2014).......................................................................... 14

ARGUMENT

The Commission’s opening brief explained that Pamela Manning sought a steadier work schedule because her erratic work hours at Kohl’s were causing her increased difficulty managing her diabetes and thereby increasing her risks of serious complications of diabetes. The Commission pointed out that the district court agreed that the Commission presented sufficient evidence to allow a jury to find that the accommodation she and her doctor proposed was reasonable and would have allowed Manning to perform her essential job functions without undue hardship to Kohl’s. But, as the Commission argued, managers at Kohl’s flatly rejected the proposed accommodation and told her – incorrectly – that Kohl’s could not give her a steadier schedule without doing so for all employees. Kohl’s gave Manning no reason to think its rejection of the accommodation request was anything but final and Manning, upset at the rejection, resigned. The district court faulted Manning for her visible distress at Kohl’s refusal to provide a schedule modification and her disinclination to engage in further discussions that were plainly pointless. The Commission argued that this Court should focus not on the “last act” in the interactive process, but instead on Kohl’s’ prior actions in effectively shutting the door to any effective reasonable accommodation.

In response, Kohl’s questions the district court’s conclusion that the accommodation proposed was reasonable and would have enabled Manning to do her job, and argues that Manning did not engage in good faith in the interactive process. In particular, Kohl’s repeatedly asserts that Manning was rigid; it claims she sought to work only between the hours of 9 a.m. and 6 p.m., despite evidence cited by the district court that she simply requested a more stable schedule. In addition, Kohl’s argues that EEOC did not show that any accommodation would have allowed Manning to perform the essential functions of her job, again despite the contrary evidence cited by the district court. Kohl’s contends that Manning was too quick to halt the conversations with the company, but it minimizes the part its managers played in the breakdown of the process when those managers told Manning categorically that Kohl’s would make no adjustments to its customary scheduling practices and would not consider the steadier work schedule that Manning needed.

The Commission also argued that the district court erred in granting summary judgment to Kohl’s on the constructive discharge issue. Given evidence that when Kohl’s summarily rejected Manning’s request for a more regular schedule, Manning had to choose between continuing to work an unpredictable schedule (with associated increased health risks) and resigning, there is a material question of fact as to whether a reasonable person in Manning’s position would have felt compelled to resign. The Commission argued that the court should have factored Manning’s medical circumstances into the determination of whether Kohl’s’ categorical refusal to consider assigning her more regular shifts created an intolerable situation.

Kohl’s responds primarily by challenging the validity of the evidence that the Commission offered to show that Manning faced severe risks to her health if she continued to work erratic hours at Kohl’s. However, the Commission offered testimony from Manning, who was competent to testify about her difficulties trying to manage her diabetes while working increasingly erratic shifts. The Commission also offered admissible evidence from Dr. Brodsky, Manning’s treating endocrinologist, who informed Kohl’s of his medical opinion that Manning’s difficult schedule was harming her ability to control her diabetes and that a more predictable, regular schedule should help smooth her blood sugar and help prevent serious complications of the diabetes. Kohl’s also minimizes record evidence that Manning was faced with a choice of continuing her employment after the clear denial of her request for a more stable schedule, with the attendant risk of developing serious medical complications of her diabetes, and quitting. That evidence would enable a reasonable jury to find that Kohl’s created an intolerable situation for Manning.

An employer engages in unlawful disability discrimination under the ADA if it “does not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified [employee] with a disability,” absent evidence of 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 enjoy equal employment opportunities” (29 C.F.R. Pt. 1630, App. § 1630.2(o)), and the way employees and employers arrive at an accommodation acceptable to both sides often will entail an “interactive process” between employer and employee. 29 C.F.R. § 1630.2(o)(3). To make out a reasonable accommodation claim, the plaintiff must show that (1) she suffers from a disability, (2) she was qualified to perform the essential functions of her job with reasonable accommodation, and (3) the employer knew of her disability and did not reasonably accommodate it. Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190, 198 (1st Cir. 2011). Kohl’s argues that the Commission’s failure to accommodate claim cannot succeed because Manning could not perform the essential functions of her job even with a reasonable accommodation and she failed to engage in the interactive process in good faith. Kohl’s br. at 12. This Court should reject both arguments.

A. A schedule modification would have allowed Manning to perform the essential functions of her job.

Kohl’s raises an argument that the district court rejected: it argues that the Commission failed to prove that any accommodation would have allowed Manning to perform the essential functions of her job. Kohl’s br. at 23-25. According to Kohl’s, even if Manning had “the perfect work schedule,” she would not be able to work. Kohl’s br. at 24. In rejecting this argument, the district court noted in particular that in the two years prior to 2010, when Manning worked more regular shifts, she “had no issues with her work schedules and was able to perform all of her job duties.” A45. The court further noted that Manning received good performance evaluations and pay raises in both years, even while working every other weekend. A45. The court held that the record supported the contention that “Manning could have performed her job functions under the proposed schedule modification,” especially in light of evidence that her doctor believed a steadier schedule would “help smooth her blood sugar” and evidence that Manning’s condition has not deteriorated when she left Kohl’s. A44-A46. Such an accommodation was “reasonable” and “feasible” for Kohl’s to provide, the court concluded. A46-A48.

Kohl’s makes the specious argument that the Commission cannot rely on Dr. Brodsky’s statements to show that Manning was qualified with a reasonable accommodation because Dr. Brodsky did not explicitly say the requested accommodation would have allowed her to the perform essential functions of her job, and the Commission did not designate Dr. Brodsky as an expert witness. Kohl’s br. at 24 n.22. But Kohl’s has never asserted that Manning was unable to perform any essential functions at any point in her employment. Moreover, as the district court observed, evidence indicates that Manning was a good employee who received good performance evaluations and pay raises (see A16). Manning could do her job, but it was exacting a toll on her. It was this toll on her health and key assistive measures about which Dr. Brodsky provided important evidence. Dr. Brodsky explained that Manning’s “difficult schedule” was a stressor he believed was contributing to high glucose levels and he believed a “more predictable and regular schedule should help smooth her blood sugar and help prevent serious complications of the diabetes.” A20-A21; Appx 74, 669, 720, quoting from Appx 659 ¶ 5 (Appx 669, Brodsky office notes), and Appx 45 ¶ 51, R.78 ¶ 51, Appx 74 (Brodsky letter).

The Commission properly disclosed the identity of Dr. Brodsky, as Manning’s treating endocrinologist, in discovery, and informed Kohl’s that Dr. Brodsky has information concerning Manning’s diabetes, his treatment of her, and her need for a predictable daytime work schedule because of her diabetes, thus complying with Fed. R. Civ. P. 26(a)(2)(A). The Commission also explained that it had not retained Dr. Brodsky to provide expert opinion, but to provide factual and opinion testimony as a witness with specialized knowledge that he developed based on his observations and treatment of Manning. R.16. Where an expert, such as a treating physician, “is part of an ongoing sequence of events and arrives at his causation opinion during treatment, his opinion testimony is not that of a retained or specially employed expert.” Downey v. Bob’s Discount Furn. Holdings, Inc., 633 F.3d 1, 7 (1st Cir. 2011) (no expert report is required under Fed. R. Civ. P. 26(a)(2)(B) for such a witness). This case thus is quite different from the district court decision on which Kohl’s relies, where the excluded testimony was that of a doctor whose examination of the plaintiff was “exceptionally brief and belated” and “failed to reveal any indicia of the … disease” about which the plaintiff “now complains.” Hrichak v. Pion, 498 F. Supp. 2d 380, 382 (D. Me. 2007) (cited in Kohl’s br. at 24 n.22).

In addition to quarreling (br. at 24 n.23) with the Commission’s argument, and the district court’s conclusions (A45-46), that Manning was qualified to perform the essential functions of her job, with a reasonable schedule accommodation, based on evidence she had done so in the very recent past when she worked less erratic schedules, Kohl’s also argues that the Commission cannot show that the proposed accommodation would have allowed Manning to work at all. Kohl’s br. at 24-25. Kohl’s relies on deposition testimony about medical statements made in May 2011 in support of Manning’s applications for unemployment compensation and Social Security disability benefits (SSDI). Appx 294-99, 715-17. Kohl’s elicited testimony from Manning that her statement (in the SSDI application) – “even if given the perfect work schedule, [she] would still struggle with working” – was true (br. at 24; Appx 299), and it elicited testimony from Dr. Brodsky that it was his opinion in May 2011 that Manning was unable to work since June 15, 2010, because she was unable to control her diabetes in the workplace. Kohl’s br. at 25; Appx 715-16.

The district court considered and properly rejected Kohl’s argument that this evidence undisputedly established that Manning could not perform the essential functions of her job in March 2010 even with the proposed accommodation. A45-A46. That ruling was correct for several reasons. First, the statements Kohl’s relies upon were made in May 2011, long after Kohl’s denied Manning a reasonable accommodation. In addition, Dr. Brodsky was careful to explain in his deposition that, “from a medical point of view, [Manning’s] work situation [with Kohl’s] had aggravated the condition.” Appx 715 (emphasis added). Dr. Brodsky firmly rejected the suggestion of Kohl’s counsel that “it wouldn’t have mattered what her work schedule was at this point in time.” Appx 716. He testified that at present “the consequences of work for her might be different with different work schedules.” Appx 716. Moreover, Dr. Brodsky testified that he had no record of and did not recall any periods of time prior to June 2010 when Manning was incapable of working because of her diabetes. Appx 717. In any event, record evidence supports the district court’s conclusion that Manning was qualified to perform essential functions of her job with a reasonable accommodation at the end of March 2010, the critical time for assessing the ability to work. A44-A46.

As this Court has stated, “the relevant date for determining whether an individual is qualified for her position is the date of the adverse employment decision.” Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 80 n.8 (1st Cir. 2010), citing EEOC Interpretive Guidance, 29 C.F.R. Pt. 1630, App. § 1630.2(m) (“The determination of whether an individual with a disability is qualified is to be made at the time of the employment decision.”). Simply put, Kohl’s cannot rely on Manning’s medical condition after her March 2010 constructive discharge to show that she was not qualified with a reasonable accommodation in March 2010, particularly when there is evidence from her treating physician that Kohl’s actions contributed to aggravating her medical condition.[1]

The cases Kohl’s cites (br. at 24 n.23) do not undermine the district court’s conclusion that Manning was qualified to perform her essential job functions with a reasonable accommodation in late March 2010, when Kohl’s denied her accommodation request. In Richardson, 594 F.3d at 79-82, this Court held that when a long-term employee’s medical condition deteriorates and she is fired because she can no longer do essential functions of the job, her prior ability to perform those functions is of little probative value at the time of the employment decision. See also Jones v. Walgreen Co., 765 F. Supp. 2d 100, 106-09 (D. Mass. 2011) (same).

Kohl’s does not dispute that when store manager Carr flatly denied Manning’s requested schedule adjustments and explained that if she gave Manning a modified schedule she would have to do the same for everyone else, Carr’s explanation reflected a basic misunderstanding of what it means to make a reasonable accommodation. Indeed, this Court in Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646-47 (1st Cir. 2000), rejected a similar employer argument that “the ADA can never impose an obligation … to grant an accommodation beyond the leave allowed under the company’s own leave policy,” as “flatly wrong under our precedent.” Accordingly, open scheduling availability for full-time sales associates is subject to modification under the ADA if necessary to provide a reasonable accommodation, absent evidence of undue hardship. Kohl’s therefore should have considered such a modification for Manning.

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

1. The March 31 meeting.

EEOC argued that it was the rigidity of Kohl’s management in refusing absolutely to consider a less erratic schedule that shut down the interactive process, and not Manning’s subsequent distress at their rigidity. The central argument Kohl’s makes in response is that it was Manning who was rigid. See Kohl’s br. at 17-18 n.16 (“Manning wanted to work between the hours of 9:00 a.m. and 6:00 p.m. or not at all.”); Kohl’s br. at 22 (“Manning … demanded her dream schedule and then quit when her demand was not met.”).

Kohl’s does not address the district court’s holding that there was evidence of Manning’s flexibility: the court noted evidence that Manning requested a “more regular and predictable schedule” within “a window of time more expansive than 9:00 a.m. to 6:00 p.m.” A44 (“Manning’s request encompassed working hours of 6:00 a.m. to 8:00 p.m.”). In addition, Kohl’s ignores the record evidence the court noted, particularly evidence showing that, during the March 2010 meeting, Manning sought a work schedule that was “steadier” (A24 n.57, citing Appx 50 ¶ 59, R.78 ¶ 59, Appx 661 ¶ 22) or “more consistent day-to-day” (A23, citing Appx 661 ¶ 22, Appx 681-82 ¶ 22). Curiously, Kohl’s itself makes an observation that contradicts its argument. Kohl’s acknowledges that “the note from Dr. Brodsky asked that Manning be allowed to work a predictable day shift. It does not say that there were certain hours or times of the day that Manning could not work.” Kohl’s br. at 21-22 n.18. Moreover, because Manning sought only more consistency, not a particular time slot, Kohl’s’ additional argument (Kohl’s br. at 21-22 n.18) – that it has no full time sales associate position scheduled between 9 a.m. and 6 p.m. – is beside the point. For the same reason, Kohl’s’ argument based on Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001), that an employer is not required under the ADA to create a new job for an employee, is irrelevant.

The picture Kohl’s seeks to paint of an employee who rashly and quickly terminates the interactive process also does not comport with the record evidence. During the March 31 meeting, Manning explained to Carr and Barnes that “she was not feeling well,” she “explained in detail how her system [was] having difficulty,” and “[s]he started to cry.” Appx 78. Carr conveyed to Manning that what she needed was off the table. Specifically, she told Manning that, as a full-time employee, she was expected to work whenever Kohl’s needed her on a variety of shifts, including openings, mid-days, and two closings per week; that Kohl’s was “keeping to consistency” with the full-time employees; that she could not make an exception for Manning without doing the same for everyone else; and that she had spoken with corporate about this. A23-A26; Appx 265, 276, 281, 303, 458. This evidence, which Kohl’s ignores, shows that Manning reasonably concluded Kohl’s had ended any meaningful interactive process and was unwilling to offer her any accommodation that would allow her to work the “more day-to-day consistent schedule” that she requested. Appx 78.

2. April 9 phone call.

Kohl’s factual omissions regarding the March 31 meeting – as to what Manning actually requested and what Carr told her – also put Carr’s April 9 phone call to Manning into context. Kohl’s states that when Carr called, she asked Manning to consider “other possible accommodations that would allow her to continue to work at Kohl’s, including both full-time and part-time employment with Kohl’s.” Kohl’s br. at 13. After that phone call, Manning did not call Carr or anyone else in Kohl’s management, and the reasons why she decided not to do so are in dispute.

Kohl’s argues that Manning did not speak to anyone at Kohl’s after Carr’s April 9 phone call because the EEOC instructed her not to do so. Kohl’s br. at 14 & n. 12. The EEOC disputed Kohl’s assertion in several ways. First, the EEOC offered a declaration (Appx 464-65 at ¶ 3) stating that it conducted a good faith investigation and none of the EEOC personnel with whom Manning had been in contact recalled having any such conversation with her. Second, the EEOC pointed out (in R.100) that the deposition testimony on which Kohl’s relied was very unclear and ambiguous – it shows Manning was confused and uncertain about who she spoke to and when, and she could not remember if EEOC told her not to contact Kohl’s. See, e.g., Appx 271 (Q: Did EEOC tell you not to call Carr? A: I don't remember. It was a crazy time. It was a crazy, crazy time for me, very emotional. I loved my job. I loved what I did.). The district court held that a genuine dispute of material fact exists as to the factors contributing to Manning’s decision not to contact Kohl’s again. A28 n.69 (noting evidence that “Manning did not call Carr back because Carr did not say anything … to suggest that Kohl’s had revised its denial of her request for a stable schedule” and that “[e]ven if Manning is correct that someone at EEOC told her not to contact Carr, without any context or timeframe, it cannot be tied to the April 9 conversation”) (quotations omitted).

Record evidence supports the district court’s conclusion that Carr never suggested any specific accommodations to Manning – except part-time employment – that would have allowed her to return to work with a more regular and predictable schedule as she needed, and Kohl’s does not do so now. Kohl’s correctly observes (br. at 13 n.11) that the ADA provides that part-time work may be a reasonable accommodation. 42 U.S.C. § 12111(9)(B). But that observation does not respond to the Commission’s point that requiring Manning to accept part-time employment would not meet the ADA’s reasonable accommodation requirement here. Although the ADA permits an employee to seek part-time status as a reasonable accommodation when needed, the point is that an employer may not require an employee to give up full-time status if it can reasonably accommodate the employee in her full-time position without undue hardship (and such evidence is lacking here). See Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99-100 (2d Cir. 1999) (holding that “an offer of an inferior position,” such as transfer to part-time work, is not a reasonable accommodation where employee can be accommodated in current position or in available position with comparable salary, benefits, and status); 29 C.F.R. § 1630.2(o)(1)(iii) (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”).

Kohl’s did not proffer any alternate reasonable accommodation that would be effective, or suggest it was open to revisiting its rigid scheduling practices. The Commission’s argument that Carr’s April 9 phone call was, in fact, “an empty gesture” therefore is not “purely speculative,” as Kohl’s argues (br. at 13 n.10).[2] Instead it is a reasonable inference a fact-finder could draw from Kohl’s’ conduct in this case. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 13 (1st Cir. 2004) (fact finder may “choose between alternative, reasonably supported inferences”).

Kohl’s cites to Griffin v. United Parcel Service, Inc., 661 F.3d 216 (5th Cir. 2011), as a case “particularly instructive” on the issue. Kohl’s br. at 19. As Kohl’s points out, after a manager denied the plaintiff’s requested accommodation because he could not conclude the plaintiff was “eligible,” the plaintiff in Griffin never contacted the company’s human resources department, but simply quit. Kohl’s br. at 20. Here, by contrast, Manning sought an accommodation and followed Kohl’s’ instructions to obtain a doctor’s note. The store manager then contacted a human resources official, who unequivocally rejected the requested accommodation. Thus, unlike the situation in Griffin, it was only after the human resources department made what reasonably seemed to be a final decision that Manning resigned.

Kohl’s also faults Manning for failing to ask Dr. Brodsky to provide additional information (Kohl’s br. at 21), but there is no evidence that Manning had any reason to think that additional medical information was necessary. Certainly no one from Kohl’s told her that was the case. As the Commission argued in its opening brief, if more medical information was actually necessary, it was Kohl’s that failed to follow up on Brodsky’s offer to provide additional information. EEOC br. at 25-26, citing 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).

Although Kohl’s claimed it wanted Manning to discuss other possible accommodation options, it never proposed any reasonable alternatives to the accommodation Manning and her doctor requested – a more regular and predictable schedule –and it persistently maintained an inflexible position that full-time associates must be available for scheduling at all hours, despite the absence of any evidence of undue hardship. Under these circumstances, a jury could find Kohl’s stated eagerness to engage in a dialogue with Manning disingenuous, and that Kohl’s did not engage in a good faith interactive process designed to accommodate Manning’s medical needs. Therefore, the fact that Manning declined to continue plainly pointless discussions does not mean it was she who ended the interactive process. See EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 806 (7th Cir. 2005) (courts must examine the interactive process as a whole, but the “last act” is not always the cause of a breakdown); see also Colwell v. Rite Aid, 602 F.3d 495, 508 (3d Cir. 2010) (where there is conflicting evidence on the interactive process, “[a] fact-finder must settle that dispute.”).

Kohl’s suggests that the two seminal cases on which the EEOC relies – Colwell and Sears – hold employers responsible for the breakdown in the interactive process only where the employer repeatedly refused an employee’s accommodation requests. Kohl’s br. at 17 n.16. Neither court adopted any such “repeated request” rule. The critical point highlighted in those cases was the evidence that the employer “had flatly refused” the plaintiff’s attempts to obtain an accommodation. Colwell, 602 F.3d at 507; see also Sears, 417 F.3d at 808 (“It is not an employee’s responsibility … to repeatedly prod a reticent employer”); id. (rejecting argument that plaintiff “should have tried harder to force [the employer] out if its reluctant posture”). This is the critical point in this case as well.

Summary judgment on the failure to accommodate claim therefore should be reversed.

The district court ruled that summary judgment for Kohl’s was appropriate on the constructive discharge issue because it was appropriate on the failure to accommodate claim. A54 & n.82. If this Court agrees that summary judgment should be reversed on the failure to accommodate claim, then that basis for the district court’s constructive discharge ruling cannot stand.

The district court also held that summary judgment was appropriate because a reasonable person in Manning’s position would not have resigned. A56-A57. As EEOC argued, however, the district court should have considered Manning’s entire experience with Kohl’s – attempting to work her new and unpredictable work schedules for two months, experiencing deteriorating health as a result, and then learning her employer utterly refused to consider any modification to her schedule despite the serious health concerns expressed by Manning and her doctor.

Kohl’s argues (br. at 27) that there is no evidence that Manning faced serious health consequences if she continued working erratic shifts. As an initial matter, Kohl’s takes issue (br. at 27 n.26) with the Commission’s NIH hyperlink explaining ketoacidosis. See EEOC br. at 10 n.5, citing www.nlm.nih.gov/medlineplus/ency/article/000320.htm (last visited May 7, 2014). This Court may take judicial notice of medical definitions. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute … because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); Fed. R. Evid. 201(d) (“The court may take judicial notice at any stage of the proceeding.”).

Further, there is record testimony, which Kohl’s elicited from Dr. Larson, that Dr. Brodsky was concerned as Manning’s treating physician because she has experienced ketoacidosis. Appx 197 (questioning Dr. Larson about Dr. Brodsky’s office notes, which state: “The patient is particularly sensitive to stress. She has very large glucose increments with emotional stress and occasionally develops ketosis with it.”) (emphasis added). But in any event, the Commission is not arguing that continuing to work erratic hours would definitely cause Manning to experience ketoacidosis or coma. The point is that based on her treating endocrinologist’s concerns and Manning’s own experience, it was reasonable for Manning to be concerned that it was a real possibility and serious risk. Cf. Marrero v. Goya of P.R., Inc., 304 F.3d 7, 28 (1st Cir. 2002) (to establish 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”) (internal quotation marks omitted).

Kohl’s also asserts broadly (br. at 27 n.27) that the district court excluded the “factual assertions” the Commission makes in support of constructive discharge. Kohl’s does not identify any such factual statements. Every point the Commission made in its opening brief to this Court is supported by record evidence accepted by the district court. Moreover, the evidence in support of the Commission’s statements is not only in the record but also in the text of the court’s opinion itself. See A20-A21, and A26. It therefore is manifestly incorrect to state, as Kohl’s does, that the court excluded all evidence on this point.

The record includes Dr. Brosky’s March 25, 2010, letter to store manager Carr stating: “The blood sugar fluctuations caused by the schedule change often induces additional stress and more sugar fluctuation. A more predictable and regular schedule should help smooth [Manning’s] blood sugar and help prevent serious complication of the diabetes.” A21, Appx 45 ¶ 51, R.78 ¶ 51, Appx 74 (Brodsky letter). The record also includes Dr. Brodsky’s notes from Manning’s March 25 office visit confirming that Manning’s job and its difficult schedule were contributing to Manning’s stress, which in turn was causing her erratic and high blood glucoses in the previous two months since her work schedule change. A20, Appx 659 ¶ 5 (Appx 669, Brodsky office notes). The timing – the past two months – coincided with the changes in Manning’s work schedule, and Dr. Brodsky’s March 25 letter to Carr informed Kohl’s that he attributed the recent deterioration in Manning’s diabetes control at least in part to “‘[h]er job and its difficult schedule.’” A21, Appx 45 ¶ 51, R.78 ¶ 51, Appx 74 (Brodsky letter).

Additionally, during the March 31 meeting, Manning explained that she was not feeling well and tried to explain to Carr and Barnes “the impact her health has taken due to the random hours she has been scheduled, her blood sugar levels fluctuating to unhealthy levels.” Appx 136. Manning explained to Carr and Barnes “how her system [was] having difficulty” and she “started to cry.” Appx 78. And Manning told Carr that by refusing her request for reasonable accommodation, Kohl’s was giving her “no choice but to quit” because if she continued working her erratic schedule, she was concerned that she would go into either ketoacidosis or a coma. A26, citing Appx 48 ¶ 61 & R.78 ¶ 61; and A56.

Contrary to Kohl’s suggestion (br. at 27), Manning was competent to testify factually about her own experience and difficulties trying to manage her diabetes while working increasingly erratic shifts in February and March 2010. Fed. R. Evid. 701(a). Manning has struggled with type I diabetes most of her life and has gone into shock many times and “a few comas.” Appx 507. She also was competent to testify to her own experiences going into ketoacidosis. Manning testified that by the time of her office visit with Dr. Brodsky on March 25, her “blood sugars were so crazy” that she was already producing ketones, and she was concerned the next step after that would be ketoacidosis. Appx 251, 254.

Kohl’s asserts that many factors impacted Manning’s stress levels and health. Kohl’s br. at 27 n.28. That other factors also affected Manning’s stress levels does not negate Dr. Brodsky’s medical conclusions that Manning’s ability to control her diabetes “recently deteriorated” due to “[h]er job and its difficult schedule,” and “[a] more predictable and regular schedule should help smooth her blood sugar and help prevent serious complications of the diabetes.” A20-A21, quoting from Appx 659 ¶ 5 (Appx 669, Brodsky office notes), and Appx 45 ¶ 51, R.78 ¶ 51, Appx 74 (Brodsky letter). Dr. Brodsky was aware of other “stressors” when he recommended to Kohl’s that it modify Manning’s erratic work schedule to a more regular and predictable schedule due to his medical concerns about the effects of the erratic schedule on Manning’s diabetes management and blood glucose control.

Finally, Kohl’s argues that EEOC must show more than a “mere failure” to accommodate to establish a constructive discharge. Kohl’s br. at 28. It is certainly true that a denial of a reasonable accommodation does not necessarily show a constructive discharge. But the circumstances surrounding the denial of a reasonable accommodation surely may support a constructive discharge showing. See Smith v. Henderson, 376 F.3d 529, 534 (6th Cir. 2004) (where employee alleged her employer failed to reasonably accommodate her disability as required by the Rehabilitation Act and that 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”).

Here, after Kohl’s’ unequivocal denial of Manning’s medically-supported request for a more regular and predictable work schedule, Manning had to choose between continuing to work erratic shifts for Kohl’s and resigning. Given the evidence of serious health risks Manning faced by continuing to work an erratic schedule there was a jury question as to whether a reasonable person in Manning’s position would have felt compelled to resign.

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] Kohl’s also cites other “stressors” in Manning’s life as a basis to invalidate Dr. Brodsky’s medical conclusions. However, the fact that other factors also affected Manning’s stress levels does not negate Dr. Brodsky’s medical conclusions that Manning’s ability to control her diabetes “recently deteriorated” due to “[h]er job and its difficult schedule,” and “[a] more predictable and regular schedule should help smooth her blood sugar and help prevent serious complications of the diabetes.” A20-A21, quoting from Appx 659 ¶ 5 (Appx 669, Brodsky office notes), and Appx 45 ¶ 51, R.78 ¶ 51, Appx 74 (Brodsky letter).

[2] Kohl’s broadly asserts that the district court excluded factual assertions the Commission made, but it identifies only one such ruling, Kohl’s br. at 13 n.10 (citing A27 n.67), and that ruling struck material the Commission did not rely on in its brief to this Court. Furthermore, because the Commission does not challenge the exclusion of evidence on appeal and, instead, makes its argument based on evidence that is in the record, Kohl’s argument is irrelevant to this appeal.