TABLE OF CONTENTS

Table of Authorities.......................................................................................... ii

Suggestion for Rehearing En Banc................................................................... iv

Statement of the Issue....................................................................................... 1

Statement of the Case....................................................................................... 1

A. Statement of Facts............................................................................. 1

B. Panel Decision................................................................................... 6

C. Dissenting Opinion............................................................................ 7

Argument.......................................................................................................... 9

A reasonable jury could find that Kohl’s acted in bad faith and was primarily responsible for the breakdown of the interactive process 10

Conclusion...................................................................................................... 12

Addendum: Panel Opinion and Dissenting Opinion

Certificate of Service

TABLE OF AUTHORITIES

Cases

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

vacated and remanded on other grounds,

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

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

Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010)............................. vi, 12

EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005)....................... 12

Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000)..... v, 11

Gile v. United Airlines, Inc., 213 F.3d 365 (7th Cir. 2000)............................... vi

Humphrey v. Mem. Hosps. Ass’n, 239 F.3d 1128 (9th Cir. 2001)..................... vi

Lafata v. Church of Christ Home for Aged,

325 Fed. App’x 416 (6th Cir. 2009)..................................................... 12

Norville v. Staten Island Univ. Hosp., 196 F.3d 89 (2d Cir. 1999)................... 11

Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014)..................................... vi

Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100 (1st Cir. 2005)....................... iv, v

U.S. Airways v. Barnett, 535 U.S. 391 (2002)................................................. 11

Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29 (1st Cir. 2000).......... 10

Statute

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.............................. iv

§ 12112(b)(5)(A).............................................................................. iv, 10

Rules and Regulations

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

Fed. R. App. P. 35(a)................................................................................... v, vi

Fed. R. App. P. 35(b)(1)(B)............................................................................. vi

Miscellaneous

EEOC Interpretive Guidance on Title I of the ADA,

29 C.F.R. Pt. 1630, App. § 1630.2(o)................................................... 10

SUGGESTION FOR REHEARING EN BANC

Under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., an employer must provide a reasonable accommodation to an employee’s disability unless doing so would cause undue hardship. 42 U.S.C. § 12112(b)(5)(A). The employer may be required to engage in a good faith, interactive process with the employee in order to identify an appropriate accommodation. 29 C.F.R.

§ 1630.2(o)(3); Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005). The district court in this case held that the EEOC has demonstrated a genuine issue of material fact regarding the existence of a reasonable accommodation, and the panel did not overrule this holding. The panel’s opinion focuses on the narrow issue of whether Kohl’s, which did not provide any reasonable accommodation, participated in the interactive process in good faith.

By affirming the award of summary judgment, the panel holds that Kohl’s uncooperative conduct constituted good faith as a matter of law. The panel condones Kohl’s behavior even though Kohl’s falsely told Pamela Manning that it could not offer her any accommodation not available to all other full-time employees – a statement in direct conflict with the ADA’s reasonable accommodation requirement. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1117 (9th Cir. 2000) (en banc) (not a reasonable accommodation to give employee something to which all employees are already entitled), vacated and remanded on other grounds, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). The panel found good faith as a matter of law even though Kohl’s had privately identified a potential accommodation that it was willing to provide but never offered to Manning.

The panel’s decision conflicts with binding precedent holding that an employer who “stonewalls” an employee during the search for a reasonable accommodation is not acting in good faith and will be liable for violating the ADA if the employee could have been reasonably accommodated. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004) (“factfinder might well conclude that in the face of plaintiff’s increasingly desperate requests for an accommodation, the defendants simply stonewalled”); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 n.12 (1st Cir. 2000) (employer failed to engage in interactive process where “[i]t simply rejected the request for the accommodation without further discussion and it did so without pointing to any facts making the accommodation harmful to its business needs”); see also Tobin, 433 F.3d at 109 (“This is not an instance where the employer . . . simply rejected any request for accommodation without further discussion.”). En banc consideration is therefore necessary to secure or maintain uniformity of the Court’s decisions. See Fed. R. App. P. 35(a)(1).

Additionally, this Court should grant rehearing en banc because the proceeding involves a question of exceptional importance. See Fed. R. App. P. 35(a)(2); 35(b)(1)(B) (issue is of exceptional importance if it conflicts with authoritative decision of other courts of appeals). Other circuits prohibit employers from reflexively denying a reasonable accommodation and not seeking ways to keep a disabled employee in her job. See Rorrer v. City of Stow, 743 F.3d 1025, 1045 (6th Cir. 2014) (“The City’s immediate conclusion that Rorrer was unfit to serve as a firefighter suggests bad faith and falls short of its obligation under the ADA to assist an employee seeking an accommodation.”); Colwell v. Rite Aid Corp., 602 F.3d 495, 507 (3d Cir. 2010) (notwithstanding employer’s offer to meet with employee, reasonable jury could find that employer acted in bad faith because it had “flatly refused all of [employee’s] overtures to obtain an accommodation” and there is no evidence that employer would have offered any accommodation at the proposed meeting); Humphrey v. Mem. Hosps. Ass’n, 239 F.3d 1128, 1139 (9th Cir. 2001) (“[A]n employer fails to engage in the interactive process as a matter of law where it rejects the employee’s proposed accommodations . . . and offers no practical alternatives.”); Gile v. United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000) (“United refused her request for a modest accommodation, then did nothing to engage with Gile in determining alternative accommodations that might permit Gile to continue working.”).

By deciding as a matter of law that Kohl’s participated in good faith in the interactive process, the panel decision erodes the ADA’s protections for disabled employees. Employers in this Circuit are now free to misrepresent their ADA obligations, deny an employee’s accommodation request, and withhold prospective accommodations that they are privately willing to offer, all while negotiating in “good faith” as a matter of law. This new standard undercuts vigorous enforcement of the ADA.

STATEMENT OF THE ISSUE

Did the panel disregard binding precedent in holding as a matter of law that Kohl’s acted in good faith when it told Manning that it could not offer her any accommodation that was not available to all other full-time employees, when the store manager did not offer her an accommodation that she was authorized to provide, and when the only accommodation Kohl’s mentioned was part-time employment?

STATEMENT OF THE CASE

A. Statement of Facts

Pamela Manning, who has Type I diabetes, was a full-time sales associate for Kohl’s. (DSMF ¶¶ 30, 46)[1] As a full-time associate, she was subject to Kohl’s “open availability” policy, requiring her to be available to work at any time. (Id. ¶ 14) On March 17, 2010, Manning worked from 6:00 a.m. to 2:00 p.m. Two days later, she worked from 6:30 p.m. to 10:30 p.m. The following day, she worked from 10:00 a.m. to 6:30 p.m. (PSAMF ¶ 4) The district court accepted the EEOC’s characterization of this schedule as “erratic and extreme.” (R.112, Order at 16 n.32)

In order to control her diabetes, Manning must have regular meals and rest breaks and must time her five daily insulin injections to match her meals and her activity. (DSMF ¶ 51) In March 2010, Manning notified her supervisor, Michelle Barnes, that she was having trouble working her scheduled hours because of her diabetes and that she needed a steady work schedule. Barnes told her to get a doctor’s note. (Id. ¶ 50)

Manning went to see her endocrinologist, Dr. Irwin Brodsky, and returned with a note stating:

I am writing to ask your assistance in accommodating the medical condition of my patient, Pamela Manning. In particular, I am asking that she 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.). Ms. Manning has type I diabetes. She takes five daily injections of insulin that must be timed to match her meals and activity.

Ms. Manning’s diabetes control has recently deteriorated and exhibits a clear stress pattern. She reports that she is having difficulty matching her insulin action to her 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). The blood sugar fluctuation caused by the schedule change often induces additional stress and more sugar fluctuation. A more predictable and regular schedule should help smooth her blood sugar and help prevent serious complications of the diabetes.

Thank you for considering this information in your dealings with my patient, Pamela Manning. If I can provide additional information that would be helpful to you, please let me know.

(Id. ¶ 51) Manning gave this note to the store manager, Tricia Carr. (Id. ¶ 52)

Carr contacted Kohl’s human resources department to ask for guidance on how to respond. (Id. ¶ 53) Although there were always part-time employees available to cover evening and closing shifts, Michael Treichler of human resources testified, “the idea that she could only work those day hours was off the table because we don’t have a job like that.” (PSAMF ¶ 19) He told Carr, “Clearly, we cannot have her not work nights. BUT we can work with her to avoid the ‘swing shifts’ – a close followed by an open. Would you be able to speak to her about this option?” (Id. ¶ 9)

Carr and Barnes met with Manning and asked her what she was requesting. Manning explained that she was asking for a steady work schedule with no swing shifts. (DSMF ¶ 58) Carr responded that she could not authorize a steady work schedule because full-time associates were expected to a work a variety of shifts. (Id. ¶ 59) She said that if she gave Manning a steady work schedule, she would have to do that for everyone else. (Id. ¶ 61) Barnes, too, said that Kohl’s was “keeping to consistency in regards to all full-timers in the building and their schedules.” (PSAMF ¶ 21) Carr did not tell Manning that human resources had authorized a schedule without swing shifts. (See generally DSMF ¶¶ 59, 61; PSAMF ¶¶ 21, 22 (describing content of conversation))

Upon learning that Kohl’s would not give her a steady work schedule, Manning became upset and told Carr that she had no choice but to quit. She said she was concerned that if she kept working her current schedule she would either go into ketoacidosis or a coma. She put her store keys on the table, walked out of Carr’s office, and slammed the door. (DSMF ¶ 61)

Carr followed Manning into the break room and asked her to discuss other potential accommodations. (Id. ¶ 62) However, Carr did not suggest any specific accommodations – not even the accommodation that Kohl’s had already authorized of exempting Manning from swing shifts. (See generally id. (describing content of conversation)) Manning therefore remained convinced that Kohl’s was unwilling to individualize her schedule. She cleaned out her locker and left the building. (Id.)

Nine days later, Carr telephoned Manning and asked her to consider other possible accommodations. The only accommodation that Carr mentioned was part-time work (which would result in a loss of pay and benefits). (Id. ¶ 66) Again, she said nothing to Manning about eliminating swing shifts. (See generally id. (describing content of conversation)) Carr said that they would have to consult with Kohl’s corporate office about “any and all potential accommodations.” (Id.) In the absence of a specific proposal, Manning made no further efforts to contact Kohl’s. (Id. ¶ 69)

In August 2011, the EEOC sued Kohl’s for failure to accommodate and constructive discharge. (R.1, Complaint) The district court agreed with the EEOC that “[a]lthough there is evidence that Kohl’s considered its open availability policy important, a reasonable fact-finder could find otherwise, because there is scant, if any, evidence confirming that the policy was, in fact, an essential function.” (R.112, Order at 42) Accordingly, the district court held, “whether Kohl’s open availability policy was an essential or marginal function remains a genuinely disputed question of material fact.” (Id. at 43) The district court also held that “the EEOC has generated a genuine dispute of material fact as to whether Ms. Manning’s proposed modification was feasible for Kohl’s, and that the larger reasonableness inquiry is also a disputed question of material fact.” (Id. at 48)

Nevertheless, the district court granted summary judgment to Kohl’s on the reasonable accommodation claim because it blamed Manning for the breakdown of the interactive process.[2] (Id. at 53) “The record reflects that Kohl’s was anxious to continue discussions with Ms. Manning about whether it could make changes in her schedule that would satisfactorily accommodate her disability,” the court said. (Id. at 52) The process of identifying an appropriate accommodation was not entered into, the court said, “because Ms. Manning literally slammed the door on it.” (Id.)

B. Panel Decision

The panel affirmed the award of summary judgment. “While Kohl’s response to Manning’s accommodation request may well have been ham-handed,” the panel said, “based on the undisputed facts, we cannot find that its subsequent overtures should be construed as empty gestures.” (Panel Op. at 11) Although Kohl’s denied Manning’s requested accommodation, the panel said, it “was willing to discuss other schedules that would balance Manning’s needs with those of the store. Manning refused to hear what Kohl’s had to offer.” (Id. at 12) It was Manning, not Kohl’s, the panel concluded, who was primarily responsible for the breakdown of the interactive process. (Id.)

The panel held as a matter of law that Kohl’s interacted in good faith and that Manning did not. (Id.) The panel did not analyze the effect of Kohl’s legally erroneous statement that it had to treat all full-time employees equally. Although the panel recognized that Kohl’s did not offer Manning a schedule without swing shifts – a schedule that human resources had already approved – it said that because Manning wanted a steady schedule in addition to no swing shifts, no reasonable jury could infer from Kohl’s omission that it was not acting in good faith. (Id. at 5 n.2)

C. Dissenting Opinion

Judge Kayatta disagreed that Kohl’s should prevail as a matter of law. “A reasonable jury,” he said, “could properly view the facts in this case very differently than does the majority.” (Dissent at 17) By telling Manning that she could not have any accommodation not available to all other full-time employees, Judge Kayatta said, Carr and Barnes “left Manning with the impression that no individual accommodation would be forthcoming.” (Id. at 18-19) They reinforced this impression, he said, by failing to offer any alternative accommodation, including the no-swing-shift accommodation that they had been expressly authorized to propose. (Id. at 19) In her subsequent conversations with Manning, Carr did not “propose alternative accommodations, request other information, or otherwise indicate that Kohl’s had relented.” (Id. at 20)

A reasonable jury, Judge Kayatta concluded, could blame Kohl’s rather than Manning for the failure of the interactive process. (Id. at 25) Looking at all of the evidence in the light most favorable to the EEOC, a reasonable jury could find that Manning did everything necessary to initiate the interactive process. Kohl’s “required nothing more,” Judge Kayatta said, “. . . to offer that which it had already determined it could accommodate.” (Id. at 23)

Disagreeing with the panel that Kohl’s failure to offer a schedule without swing shifts is insignificant in light of Manning’s request for a steady work schedule, Judge Kayatta observed that a reasonable jury could find that the primary focus of Manning’s request was for no swing shifts. (Id. at 23-24) In any event, Judge Kayatta said, “Carr never offered anything, and (if Manning is to be believed) a jury could find that Carr and Barnes actively misled Manning into believing that they could offer no accommodation that was not consistent with the schedules of ‘all full timers’ or available to everyone else. . . . A jury could find that such tactics fell far enough short of ‘good faith’ participation in an ‘interactive,’ ‘problem solving’ process so as to place on Kohl’s some of the blame for the breakdown of that process.” (Id. at 24-25 (emphasis in original))

Judge Kayatta sharply criticized the panel majority for deciding this case as a matter of law rather than remanding for factual determinations by a jury. He said, “The majority observes that Kohl’s negotiating tactics did not ‘necessarily amount to bad faith’ (emphasis added), so long as it was ‘earnest.’ I agree. Therefore the EEOC does not win on summary judgment. Why Kohl’s wins, though, is not explained.” (Id. at 25)

Judge Kayatta concluded: “As best as I can tell, this is the first time that any circuit court has held that an employer can reject an accommodation request backed up by a doctor’s note, refuse to offer an accommodation that it has determined it can make, falsely claim that any accommodation must be offered to all workers whether disabled or not, and then declare the employee’s ADA rights forfeited when she gives up. Such a holding demands too much resilience and persistence on the part of a disabled and stressed-out employee, and takes away from jurors a task they are well-suited to perform.” (Id. at 29-30)

ARGUMENT

The panel’s decision gives employers license to avoid their reasonable accommodation requirements under the ADA. Falsely telling an employee that she cannot have any accommodation because the employer would then have to make it available to all of her coworkers is now good faith behavior as a matter of law. An employee who takes this statement at face value is held responsible for the breakdown of the interactive process and loses her entitlement to a reasonable accommodation. This is so even when, as here, a jury could find that a reasonable accommodation may have been possible.

As the dissent correctly observes, the facts in this case are not so one-sided that responsibility for the breakdown of the interactive process can be decided as a matter of law. The panel’s opinion wrongly resolves disputed issues of fact, condones deceptive and obstructionist employer conduct, and waters down the ADA’s protections for disabled employees.

A reasonable jury could find that Kohl’s acted in bad faith and was primarily responsible for the breakdown of the interactive process.

A reasonable jury could view Kohl’s conduct differently from the panel. From the outset, Kohl’s demonstrated its disregard for the ADA by ignoring the statutory mandate to grant a reasonable accommodation unless doing so would cause “undue hardship.”[3] 42 U.S.C. § 12112(b)(5)(A). A reasonable jury could blame Kohl’s for setting such a negative tone that it, and not Manning, was primarily responsible for the breakdown of the interactive process. See Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 32 (1st Cir. 2000) (on summary judgment, court must assess facts in light most favorable to the nonmoving party).

Contrary to law, Carr and Barnes expressly told Manning that they would not grant her any accommodation that was not available to all other full-time associates. (DSMF ¶ 59, 61; PSAMF ¶ 21) By its very nature, however, a reasonable accommodation requires a “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.” EEOC Interpretive Guidance on Title I of the ADA, 29 C.F.R. Pt. 1630, App. § 1630.2(o). Regardless of the rules that an employer sets for its non-disabled employees, “preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.” U.S. Airways v. Barnett, 535 U.S. 391, 397 (2002); see also Garcia-Ayala, 212 F.3d at 646 (“The company’s apparent position that the ADA can never impose an obligation on a company to grant an accommodation beyond the leave allowed under the company’s own leave policy is flatly wrong under our precedent.”).

At no point did Carr or Barnes disavow their statements that Kohl’s would not allow any schedule that was not available to all full-time employees. Even in the two conversations that Carr had with Manning after the conclusion of their formal meeting, Carr did not offer the no-swing-shift accommodation that the human resources department had expressly asked her to discuss. (See generally DSMF ¶¶ 62, 66 (describing content of conversations)) The only specific accommodation that Carr proposed was that Manning work part-time, thereby incurring lost pay and reduced benefits. (DSMF ¶ 66) See Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 100 (2d Cir. 1999) (transfer to part-time position is not reasonable accommodation if employee could be reasonably accommodated in full-time position). Under these circumstances, a reasonable jury could find that Carr’s approaches were “empty gestures.” (Dissent at 25)

Manning’s dramatic exit from her meeting with Carr and Barnes, while striking in its imagery, is not sufficient to tag her with responsibility for ending the interactive process as a matter of law. “The last act in the interactive process is not always the cause of a breakdown,” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 806 (7th Cir. 2005), and an employee’s decision to quit does not necessarily absolve the employer of blame. Colwell, 602 F.3d at 508 (genuine issue of material fact about which party was responsible for breakdown of interactive process notwithstanding employee’s resignation); Lafata v. Church of Christ Home for Aged, 325 Fed. App’x 416, at *6 (6th Cir. 2009) (same); Sears, 417 F.3d at 808 (same).

CONCLUSION

Because a reasonable jury could see the facts differently from the panel majority, the panel erred by affirming the award of summary judgment. For the foregoing reasons, the EEOC respectfully requests that the Court grant panel rehearing or rehearing en banc.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel /s/ Gail S. Coleman

Attorney

CAROLYN L. WHEELER EQUAL EMPLOYMENT

Acting Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

JENNIFER S. GOLDSTEIN 131 M Street, NE, Room 5SW24L

Acting Assistant General Counsel Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] In keeping with the district court’s nomenclature, the EEOC refers to Kohl’s Statement of Material Facts (R.72) as “DSMF” and the EEOC’s Statement of Additional Material Facts (R.79) as “PSAMF.”

[2] The district court also granted summary judgment on the constructive discharge claim. (Id. at 57)

[3] The panel’s statement that Kohl’s sought to “balance Manning’s needs with those of the store” (Panel Op. at 12) misstates this statutory obligation.