STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (EEOC or Commission) is the agency charged by Congress with interpreting, administering, and enforcing federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq.; and Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.

This appeal raises important questions concerning whether the district court incorrectly dismissed the plaintiff’s Title VII, ADEA, and ADA claims on the ground that the plaintiff was not “qualified” for his job. The district court concluded that a retroactive grant of disability benefits by the Social Security Administration (SSA) trumped undisputed evidence that the plaintiff could do, and was doing, his job successfully at the time the defendant discharged him, purportedly for a workplace rule violation. Relying on the SSA determination, the court dismissed the plaintiff’s claims of discriminatory discharge and hostile work environment under all three statutes. The EEOC believes that these rulings constitute a significant departure from proper legal standards and that repetition of these errors could significantly impede future enforcement efforts by both private plaintiffs and the EEOC. Therefore, the EEOC offers its views to this Court. See Fed. R. App. P. 29(a).

1. Defendant knowingly allowed Josif Kovaco’s co-workers to harass him for years based on his age and Romanian ethnicity—harassment in which his manager sometimes joined. Defendant thereafter fired Kovaco allegedly for violating a company policy, and Kovaco applied for and received social security disability benefits. Did the district court err in ruling that Kovaco could not establish a prima facie case of discriminatory discharge or hostile work environment based on national origin and/or age under Title VII and/or the ADEA on the ground that the award of disability benefits demonstrated Kovaco was not “qualified” for his job?

2. Kovaco offered evidence reconciling the SSA’s determination that he was “disabled” within the meaning of the Social Security Act with his ADA contention that he could continue performing the essential functions of his job with reasonable accommodation. Given this evidence, did the court err in granting Rockbestos summary judgment on Kovaco’s ADA claim of discriminatory discharge?

STATEMENT OF THE CASE

A. Statement of Facts

Plaintiff Josif Kovaco was born in Romania. Volume I, Joint Appendix (I-JA.) 21. In April 2005, when he was fifty-three years old, Defendant Rockbestos-Surprenant Cable Corporation hired him as a maintenance mechanic. Id. The job included repairing a “wide range of factory equipment and machinery, as well as plumbing, welding, janitorial services, mechanical and electrical work” in Rockbestos’s large, multi-building facility. II-JA.347; III-JA.818. Kovaco’s first supervisor praised him as a “solid mechanic/electrician/plumber” with an “excellent work ethic” who was “very positive,” “energetic,” and “works well with others.” II-JA.420. Kovaco’s difficulties at work began in 2008, when he won a bid to transfer from the third shift to the first shift, under a new supervisor, Maintenance Supervisor Greg Miller. See II-JA.347; III-JA.657-59, 661.

Kovaco’s new co-workers began harassing him—daily and openly—with derogatory remarks such as “fucking Romanian,” “Romanian Gypsy,” “third-world countryman,” and “old shit man.” IV-JA.1081; see also, e.g., III-JA.721, 753 (co-worker Luciani called Kovaco “mother fucker Romanian” “every day”). Kovaco complained to Miller “probably ten times.” III-JA.666, 671-74. Miller said he would take care of it, but did nothing as far as Kovaco could tell, and the harassment continued. See, e.g., III-JA.666-72, 753 (harassment worsened after Kovaco complained to Miller). Miller even joined in the discriminatory comments, calling Kovaco a “gypsy” and a “fucking Romanian” and, when Miller was angry, telling him he should go back to Romania. II-JA.427; III-JA.682; IV-JA.896-97; I-JA.179-80 (Kovaco reported Miller’s comments to a manager, who “was amazed”).

In addition to the derogatory comments, Kovaco’s co-workers left caricatures of him on his desk and computer screen. III-JA.662-65, 710-13. One drawing, captioned “old shit man,” depicted an old, bald man with a large mustache and the word “Roma” placed on his shirt. II-JA.431; III-JA.705-07. When Kovaco showed it to Miller, Miller just smiled. III-JA.709. A co-worker loaded a computer screen image onto Kovaco’s office computer without authorization (see III-JA.714-17) that offensively depicted Kovaco with an exaggerated nose. II‑JA.433. Another time, a co-worker drew a mustache on a photograph of Kovaco’s grandchild that he kept above his workstation. II-JA.435. When Kovaco, who was very upset, brought the defaced picture to Miller’s attention, Miller laughed and said, “[I]t looks like you.” III-JA.700, 708. See also II-JA.428 (Miller laughed about the caricatures of Kovaco).

Kovaco complained to Rockbestos’s Human Resources (HR) Department. I-JA.180; II-JA.331-34; III-JA674. HR Manager Philip Borgia met with Kovaco, Miller, another HR employee, and four co-workers whom Kovaco alleged had made discriminatory remarks about him. III-JA.674-78. Miller told the group that they needed to get along and that harassment would not be tolerated, III-JA.676-77, but neither Borgia nor Miller took any further actions in response to Kovaco’s complaints, and the harassment continued.[2] II-JA.529 (no one was ever disciplined for harassing Kovaco); III-JA.677-83 (after group meeting, Kovaco complained to Miller three or four more times about continued harassment); III-JA.757 (harassment worsened after Kovaco complained).

Beginning in 2008, Kovaco developed several progressive medical conditions—including rheumatoid arthritis, degenerative arthritis in both feet, bone spurs in both feet, soft tissue in both ankles, and severe gout—that caused pain in his back, legs, and feet, and made it difficult to walk across his large work area. I‑JA.110, 113, 121. In early December 2009, Kovaco submitted a doctor’s note to Miller and another manager, Jeffrey Rasmus, calling for four weeks of limited walking and no climbing stairs. I-JA.164-65, 207-09; IV-JA.1078. Kovaco requested an accommodation of an electric cart to move about the facility. I‑JA.165, 208; IV-JA.1078.

The company had several electric carts. I-JA.165, 187-89. One was dedicated to another mechanic, Larry DeGreenia, with similar physical limitations. IV-JA.887, 904. A second cart was used almost exclusively by another employee. III-JA.689; IV-JA.861, 885-86. Rasmus and Miller refused Kovaco’s request for a dedicated electric cart, telling him he could share use of the only other working cart as necessary and advising Kovaco to contact a supervisor if the cart was unavailable when he needed it. I-JA.209; II-JA.525; IV-JA.1078.

In January, Defendant granted Kovaco medical leave pursuant to the Family Medical Leave Act (FMLA). IV-JA.1078. Kovaco attested that when he returned to work on February 1, 2010, he handed Miller a doctor’s note imposing light duty restrictions. Miller threw the note on the floor, stating “I don’t need one other handicap in my shop.” III-JA.730-31 (Miller “was very pissed”).

On March 19, 2010, Kovaco began his shift with three repairs to perform. Kovaco searched for the electric cart for thirty to forty-five minutes before learning it was in the boiler room, to which only supervisors have the key. II-JA.477-78. Kovaco contacted shift supervisor Kurt Burke, who gave Kovaco the boiler room key. II-JA.478-79; III-JA.686-87. When he entered the boiler room, Kovaco observed an OSHA “lockout” tag on the electric cart. IV-JA.1079.

Lockout tags were placed on broken machinery and equipment to advise employees an item was temporarily out-of-order. Id. Kovaco presented evidence that lockout tags were not customarily placed on electronic carts. E.g., IV-JA.907. Instead, it was part of the mechanic’s job to fix the carts when they became defective. I-JA.190. Kovaco had never previously observed a lockout tag on an electric cart, and he assumed that on this occasion, his co-workers had put the lockout tag on this cart as yet another part of their campaign of harassment. I‑JA.153-54, 166; II-JA.477-79 (co-workers often hid carts from Kovaco), 496 (no lockout/tag procedure for carts). Kovaco inspected the cart for any mechanical issues—a task that fell within his expertise as a maintenance mechanic—found the cart functional, bent the tag off the cart, and proceeded to use it for the rest of his shift. I-JA.150-51; III-JA.690; IV-JA.1079. He later explained that he believed, at that moment, that he faced a Hobson’s choice: leave the lockout tag on (even though he thought it was just a prank) and fail to perform his job because a cart was unavailable, at the risk of getting fired for not doing his assigned tasks; or break off the lockout tag and do his job. II-JA.479; III-JA.695-96.

Unbeknownst to Kovaco, Miller had placed the lockout tag on the cart because its battery was not holding a charge. I-JA.201; IV-JA.1079. The next morning, Miller searched for the cart and found it in a remote part of the facility with its battery drained. Miller determined that Kovaco had used the cart the prior evening and deemed Kovaco’s actions misconduct. On the morning of March 23, after Kovaco completed his shift, Miller suspended Kovaco pending further investigation. II-JA.340, 346; IV-JA.1079.

On March 29, Borgia and Miller met with Kovaco, and Kovaco told them he believed his co-workers had deliberately hidden the cart in the boiler room and put the tag on it to prevent him from doing his job. II-JA.478-79, 492. Borgia opined that Kovaco had been having a lot of problems getting along with his co-workers over the past several months and asked why he wanted to continue working someplace where he was so clearly unhappy. II-JA.493-98. At the end of the meeting, Borgia and Miller terminated Kovaco’s employment, citing his violation of company rules regarding the OSHA lockout tag. II-JA.500-01, 506-09.

During his suspension, Kovaco had applied for Social Security Disability Insurance (SSDI) benefits, describing both his medical conditions and the physical demands of his job. I-JA.120-28. Months later, the SSA determined that Kovaco was disabled as of March 24, 2010—the day after Miller suspended him following the last shift Kovaco worked for Rockbestos. I-JA.117-18. The SSA determination stated that Kovaco was fit only for sedentary work and was limited to standing and/or walking for a total of four hours per day and lifting up to twenty pounds. I-JA.114, 117.

Kovaco sued Rockbestos. I-JA.20-37. Kovaco’s complaint asserted, in relevant part, that “[t]hroughout [his] employment, he was subject to severe and pervasive harassment and discrimination because of his national origin, disability and age.” I-JA.23-24. The complaint further alleged that he experienced discrimination and unequal treatment in addition to wrongful termination. I-JA.20. Kovaco also alleged failure to accommodate in violation of the ADA; retaliation under the ADA, Title VII, and ADEA; and various FMLA and state law causes of action not relevant here. I-JA.28, 31-36.

Following discovery, Rockbestos moved for summary judgment. I-JA.60. The company argued that Kovaco’s “core claim” (according to Rockbestos, his claim of discriminatory discharge) failed as a matter of law because he could not prove the “qualification” element of a McDonnell Douglas prima facie case in light of the SSA’s determination that as of March 24, 2010, Kovaco was “physically incapable of performing the essential job functions—in particular the physical demands—of his job as a maintenance mechanic.” I-JA.61. Rockbestos did not expressly move for summary judgment on Kovaco’s claims of hostile work environment, addressing his harassment allegations only as they related to his discriminatory discharge claim. I-JA.64, 81-87.

B. District Court Decision

Noting that Rockbestos had “filed a motion for summary judgment on all counts,” IV-JA.1077, the district court granted Rockbestos summary judgment on Kovaco’s federal discrimination claims, in part, on the ground that Kovaco did not satisfy the “qualified” element of a prima facie case. IV-JA.1082-85. The court considered it dispositive that Kovaco had applied for disability benefits while he was suspended from his job and that the SSA later found him eligible as of the day after Rockbestos suspended him for an alleged workplace infraction unrelated to his job performance. IV-JA.1084-85.

Initially, the court summarized Kovaco’s discrimination claims, noting in particular that he “alleges that he was discriminated against and terminated based on his disability, age, and national origin,” and described the claims as including co-worker “discriminatory comments based upon his national origin, ethnicity and age.” IV-JA.1077, 1081. The court noted that Kovaco had complained about this conduct to his supervisor, but Rockbestos imposed no discipline on any of the perpetrators and Kovaco testified the harassment continued. Id. The court further noted that Kovaco also complained about the harassment “on several occasions” through the company’s alert line, but Rockbestos “did not take his complaints seriously,” as evidenced by the company’s “failure to individually interview any of the accused perpetrators.” Id. at 258.

The court addressed Kovaco’s federal discrimination claims in three sections: “qualification,” “retaliation,” and “reasonable accommodation.” The court denied summary judgment on Kovaco’s claims of retaliation and his ADA claim that Rockbestos failed to accommodate his disability.[3] IV-JA.1085-88. The court addressed Kovaco’s remaining claims under Title VII, the ADEA, and the ADA under a single heading—“Qualification”—and granted summary judgment on the ground that Kovaco was not “qualified for his job.” IV-JA.1082-85.

The court noted the SSA’s determination that Kovaco was disabled and rejected Kovaco’s argument that he could work with the accommodation of an electric cart, stating that an electric cart would not enable Kovaco to perform a number of the tasks he had listed on his disability application as part of the job. IV-JA.1084-85. Instead, based on the SSA’s determination that Kovaco was “fit only for sedentary work,” the court concluded that he was “not qualified for purposes of the ADA.” IV-JA.1085. On the same basis, the court dismissed Kovaco’s “national origin and age discrimination claims.” Id.

Kovaco moved for reconsideration. IV-JA.1107-19. He argued that under Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), the SSA’s determination of disability under the Social Security Act is not determinative of whether a person is disabled within the meaning of the ADA because the ADA considers whether an employee can perform his job duties with reasonable accommodation, and the Social Security Act does not. IV-JA.1108-12. While this motion was pending, the district court allowed Kovaco to file a supplemental brief, see Docket Entry (R.)120 (order granting motion) (I-JA.13), in which he further emphasized that he “brought claims of national origin/ethnicity discrimination” in addition to his claim of wrongful termination. Kovaco explained that “a plaintiff may prove a workplace discrimination claim by demonstrating that he was subject to a hostile work environment.” R.119-1 (supplemental brief attached to plaintiff’s motion). After considering Kovaco’s arguments, the district court granted reconsideration but declined to alter its decision granting Rockbestos summary judgment. See IV-JA.1141-42.

Kovaco appealed the grant of summary judgment on his hostile work environment and discriminatory discharge claims. IV-JA.1169.

STANDARD OF REVIEW

This Court reviews a district court’s grant of summary judgment de novo. EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2d Cir. 1996).

ARGUMENT

I. The SSA determination entitling Kovaco to receive disability benefits has no bearing on his prima facie case of national origin or age discrimination.

The SSA’s determination that Kovaco was entitled to disability benefits as of March 24, 2010, is irrelevant both to whether Rockbestos discharged Kovaco based on his national origin and/or age and to whether Rockbestos knowingly tolerated a hostile work environment. The district court erred when it relied on the SSA’s determination and Kovaco’s SSA application as the basis for granting summary judgment on his Title VII and ADEA claims on the ground that he was not “qualified” for the job at the time he was fired.

A. Kovaco established a prima facie case of discriminatory discharge based on national origin and age under T itle VII and the ADEA.

To establish that Rockbestos’s decision to discharge him violated Title VII and/or the ADEA, Kovaco was required to prove that Rockbestos discharged him because of his national origin and/or age. See 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. § 623(a)(1). In other words, “[t]he ‘factual inquiry’ in a Title VII [and ADEA] case is ‘whether the defendant intentionally discriminated against the plaintiff.’” U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983).

To prove intentional discrimination, the Supreme Court adopted a three-stage, burden-shifting paradigm in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the first McDonnell Douglas stage, a plaintiff must demonstrate the elements of a prima facie case by showing he (1) belonged to a protected class, (2) was qualified for the position he held, and (3) suffered an adverse employment action (4) “under circumstances giving rise to an inference of discriminatory intent.” See IV-JA.1083 (quoting Chin v. Port Auth. of N.Y. and N.J., 685 F.3d 135, 151 (2d Cir. 2012)).

A plaintiff’s burden to establish this prima facie case “is not onerous” and “was ‘never intended to be rigid, mechanized, or ritualistic.’” Aikens, 460 U.S. at 715; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). “Rather, it is merely a sensible, orderly way to evaluate the evidence” by requiring the plaintiff to present enough evidence to eliminate the “most common nondiscriminatory reasons for the plaintiff’s rejection.” Aikens, 460 U.S. at 715; Burdine, 450 U.S. at 254. Those nondiscriminatory reasons are, in the hiring and promotion context, “lack of qualifications or the absence of a vacancy in the job sought.” Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324, 358 n.44 (1977).[4]

Discharge cases are different, however, and this Court has used varying formulations to articulate a plaintiff’s prima facie case of discriminatory discharge under Title VII and the ADEA. Given the plaintiff was presumably found “qualified” for the job when the employer hired him, this Court has sometimes required a plaintiff claiming discriminatory discharge to show he “was performing his duties satisfactorily” at the time of his discharge. See, e.g., Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). But in Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 91-92 (2d Cir. 2001), this Court expressed concern that “performing satisfactorily” could be misconstrued to impose an improper higher prima facie burden on a plaintiff alleging discriminatory discharge than on one alleging discriminatory failure-to-hire.

This Court thus clarified in Slattery that a plaintiff’s prima facie showing that he was “qualified for the position” is a “minimal” burden that requires the plaintiff to show only that “he ‘possesses the basic skills necessary for performance of [the] job.’” Id. at 91-92 (citation omitted). This Court emphasized that the qualification prong should not be interpreted so as to “shift onto the plaintiff an obligation to anticipate and disprove, in his prima facie case, the employer’s proffer of a legitimate, non-discriminatory basis for its decision.” Id. at 92. Rather, “especially where discharge is at issue and the employer has already hired the employee, the inference of minimal qualification is not difficult to draw.” Id. (citation omitted).

Kovaco had the basic skills for the job he held during his five-year tenure at Rockbestos, and Rockbestos did not contend otherwise when it discharged Kovaco in March 2010 or later defended that decision in court.[5] See, e.g. II-JA.472-501; IV-JA.1085. Whether the real reason Rockbestos discharged Kovaco is the tag removal (as Rockbestos contends) or Kovaco’s national origin and/or age (as Kovaco asserts) is the ultimate factual inquiry in this case. See, e.g., Aikens, 460 U.S. 711, 715. Kovaco is entitled to “have a full and fair opportunity to demonstrate” his factual contention of pretext. See Burdine, 450 U.S. at 256; accord St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993) (quoting Burdine). The district court erred when it failed to allow Kovaco the opportunity to argue to a jury that the reason Rockbestos gave for discharging him was a “pretext” for discrimination based on his Romanian national origin, his age, or both.

The district court wrongly considered Kovaco’s medical limitations as an element of Kovaco’s “qualifications” in assessing his prima facie case under Title VII and the ADEA. The ADA—unlike Title VII and the ADEA—limits protection from discrimination to a “qualified individual,” defined as someone who “with or without reasonable accommodation, can perform the essential functions” of the job. See 42 U.S.C. §§ 12111(8), 12112(a). Consequently, an ADA plaintiff, as part of a prima facie case, must prove that he was both disabled within the meaning of the ADA and “otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation.” See, e.g., Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006).

Title VII and the ADEA, on the other hand, include no such disability-related inquiry. If a Title VII or ADEA plaintiff establishes that he met the employer’s minimal qualifications for the job and satisfies the other elements of the prima facie case, there is enough of an inference of discrimination to move the summary judgment inquiry to the second and third steps of the McDonnell Douglas analysis. See supra at 14 n.4.

Kovaco’s summary judgment evidence demonstrated all of the proper elements of a prima facie case of discriminatory discharge under Title VII and ADEA. Because Kovaco’s medical limitations are irrelevant both to Kovaco’s prima facie cases under the Title VII and ADEA as well as to the ultimate question presented in his discharge claims under these two statutes—i.e., whether Rockbestos fired him because of animus based on his national origin and/or age (as Kovaco claims) or because of the OSHA tag (as Rockbestos claims)—summary judgment on Kovaco’s Title VII and ADEA discharge claims should be reversed.

B. The court erroneously granted summary judgment on Kovaco’s claims of workplace harassment based on national origin and/or age.

A plaintiff may establish disparate treatment in violation of Title VII or the ADEA “by demonstrating that harassment on [the basis of national origin and/or age] amounted to a hostile work environment.” See Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (citation omitted). Here, the district court expressly noted Kovaco’s allegations of persistent workplace harassment by his co-workers based on his national origin, ethnicity, and age; that he complained to managers and to the parent company’s “alert line”; that Rockbestos failed to take any steps in response to his repeated complaints; and that the harassment continued thereafter. IV-JA.1081-82. The district court then granted summary judgment on all of Kovaco’s national origin and age discrimination claims on the ground that “they … fail for lack of qualification.” IV-JA.1085. Apart from the arguments in Point I.A., supra, there are two additional reasons why the district court erred in granting summary judgment on Kovaco’s hostile-work-environment claims: because a plaintiff need not prove he is “qualified” as an element of a hostile-work-environment claim, and because the SSA determination addressed a different period of time than his allegations of harassment.

First, whether an employee is “qualified” for his or her job is irrelevant to a claim of on-the-job harassment based on national origin or age under Title VII or the ADEA. As noted above, the purpose of the prima facie case in a Title VII or ADEA challenge to an adverse employment action is to require the plaintiff to put forward enough evidence to eliminate the “most common nondiscriminatory reasons for the plaintiff’s rejection.” Burdine, 450 U.S. at 254. Those reasons are, in the hiring and promotion context, “lack of qualifications or the absence of a vacancy in the job sought.” Teamsters, 431 U.S. at 358 n. 44. For this reason, it made sense to apply the McDonnell Douglas prima facie case to the two cases the district court cited—Chin, 685 F.3d 135, and Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119 (2d Cir. 2012)—because both were failure to hire or promote cases.

A plaintiff establishes a hostile-work-environment claim, on the other hand, based on a protected trait such as national origin or age when he demonstrates the harassing conduct was severe or pervasive and there is a basis for employer liability. See, e.g., Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (hostile-work-environment claims require two showings: “(1) that ‘the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and to create an abusive working environment’ and (2) that there is a ‘specific basis for the imputing the conduct creating the hostile work environment to the employer”); Feingold, 366 F.3d at 149-50 (same); Terry v. Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003) (same standards apply to hostile-work-environment claims brought under ADEA).

Courts have recognized that the McDonnell Douglas framework does not apply to claims of workplace harassment. In Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501 (11th Cir. 2000), for instance, the Eleventh Circuit reversed a district court’s grant of summary judgment where the court had “mistakenly applied a McDonnell Douglas–Burdine framework” to the plaintiff’s hostile-work-environment claim. Id. at 510. The court noted that sexual harassment cases have “evolved quite separately from other Title VII cases” and stated that “applying a burden-shifting analysis to [sexual harassment cases] would be a departure from precedent.” Id. at 511. Accord Matthews v. Corning, Inc., 77 F. Supp. 3d 275, 292 (W.D.N.Y. 2014) (“hostile work environment claims are not analyzed using the McDonnell Douglas three-part burden-shifting test”); Lewis v. Forest Pharm., Inc., 217 F. Supp. 2d 638, 653 (D. Md. 2002) (“The McDonnell Douglas burden-shifting paradigm cannot logically apply to claims of hostile work environment. There simply is no legitimate business justification for severe or pervasive sexual harassment.”).

Here, the court’s dismissal of all of Kovaco’s federal discrimination claims (except retaliation and reasonable accommodation) on the ground that the SSA determination demonstrated Kovaco was not “qualified” for the job, IV-JA.1085, effectively subjected Kovaco’s hostile-work-environment claims to the same prima facie case standard that applies to claims of failure to hire or promote. Because this constituted error, Kovaco’s hostile-work-environment claim should be remanded to the district court.

The court’s grant of summary judgment was erroneous for an additional reason: the SSA’s determination is temporally irrelevant. The SSA’s June 2010 determination stated that Kovaco’s eligibility for benefits (in other words, his status as being unable to work within the meaning of the Social Security Act) began March 24, 2010—the day after the last shift he worked. In contrast, the harassing conduct that Kovaco alleged in his complaint and documented in opposition to summary judgment began when Kovaco bid from the third shift into the first shift in 2008, two years earlier. As the Fourth Circuit noted under analogous circumstances in Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001), the applicable time frame for determining whether an element of a claim is met is necessarily when the discrimination occurred, not some later period of time. See id. at 178 (fact that plaintiff applied for and received worker’s compensation benefits for a later period of time irrelevant to plaintiff’s claim of hostile work environment for period of time preceding onset of total disability); cf. Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 884 (6th Cir. 1996) (relevant time frame for establishing whether ADA plaintiff had a qualifying impairment is when discrimination occurred, not when suit was filed).

Thus, the question of “qualification” is irrelevant to Kovaco’s hostile-work-environment claim, and even if it were relevant, the SSA determination addressed a different time frame from the period of harassment: the SSA determined that Kovaco’s inability to work commenced after his last day of work; Kovaco’s hostile work environment claim is based on conduct that occurred over the course of the prior two years. The court’s rationale for granting summary judgment on Kovaco’s Title VII and ADEA discrimination claims—that the SSA found Kovaco eligible for disability benefits—does not apply to Kovaco’s claims of hostile work environment based on his national origin, age, and disability.[6]

II. The SSA’s award of disability benefits is consistent with Kovaco’s A DA claim that he could work with accommodation.

The district court erred in granting summary judgment on Kovaco’s ADA discriminatory discharge claim based on his application for SSDI and the SSA’s determination that Kovaco was entitled to those benefits. An ADA plaintiff’s ability to perform a job with or without reasonable accommodation (i.e., being “qualified” for the job) is an element of an ADA discriminatory discharge claim. See, e.g., 42 U.S.C. § 12112 (prohibiting discrimination against a “qualified individual”). A finding of disability by the SSA does not conclusively prove that an employee cannot meet this requirement, however, because when the SSA determines an employee is “disabled” within the meaning of the Social Security Act, the SSA is applying a different statutory scheme that has a different definition of disability and does not consider the possibility of reasonable accommodations. See Cleveland, 526 U.S. at 801-03.

As the Cleveland Court explained, “an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without it.” 526 U.S. at 803. “To survive a defendant’s motion for summary judgment [the plaintiff] must explain why that SSDI contention is consistent with her ADA claim that she could ‘perform the essential functions’ of her previous job, at least with ‘reasonable accommodation.’” Id. at 798. And that explanation “must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good-faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions’ of her job, with or without ‘reasonable accommodation.’” Id. at 807.

Applying Cleveland, this Court and others have ruled that ADA plaintiffs successfully reconciled their SSA award of disability benefits with their ADA contentions that they could work with accommodation. In Parker v. Columbia Pictures Industries, 204 F.3d 326 (2d Cir. 2000), for example, this Court reversed summary judgment where an employee—whose doctor had prescribed “no work” after he injured his back—successfully applied for disability benefits after he was discharged. This Court stated that “Cleveland gives ADA plaintiffs wide latitude to overcome apparent conflicts” between an SSDI application and allegations of discriminatory discharge, id. at 333, noting that a plaintiff’s representation of total disability to the SSA “differs from a purely factual statement in that it often implies a context-related legal conclusion, namely ‘I am disabled for purposes of the Social Security Act.’” Id. at 334 (quoting Cleveland, 526 U.S. at 802). This Court found that Parker’s statements to the SSA and on his long-term disability application that he was unable to work did not preclude him from arguing in his ADA action—as Kovaco argues here—that he could have worked with accommodation. Id. at 334-35.

This Court reached the same result in DeRosa v. National Envelope Corp., 595 F.3d 99, 101 (2d Cir. 2010), where the plaintiff applied for SSDI only after his employer withdrew an existing accommodation that had allowed him to work and then terminated his employment. This Court held that DeRosa adequately reconciled his statement in his SSDI application that he could not work with his contention, in his ADA lawsuit, that he could have continued working with accommodation. Id. at 104-05.

Other courts have reached similar results. In Smith v. Clark County School District, 727 F.3d 950, 957-60 (9th Cir. 2013), for example, the Ninth Circuit held that the plaintiff’s contention, for purposes of her state benefits application, that she could no longer work could be reconciled with her ADA claim that she could have continued working with accommodation. The defendant had asserted an inherent inconsistency because the benefits statute required applications to be “totally unable” to perform their current or any comparable job, and Smith’s doctor had stated on her disability application that she was “unable to work,” and he left blank the portion of the application asking whether she could work in a limited capacity. Id. at 957. The Ninth Circuit noted that the state disability program did not consider whether an applicant could work with accommodation, explaining: “Asking if a person can work in a limited capacity is not the same as asking if that person can work with reasonable accommodation.” Id. The Ninth Circuit concluded that because available accommodations could have permitted Smith to perform her former job, “[a] reasonable juror could reconcile the apparent inconsistency between Smith’s PERS application and her claim that she is a qualified individual under the ADA.” Id. at 959. Accord EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 380 (4th Cir. 2000) (EEOC adequately reconciled employee’s disability claim with her contention that she could have continued working had her employer re-assigned her to a workstation that minimized the negative effects of her physical ailment).

Kovaco explained below that he could perform the essential functions of his job with the accommodation of an electric cart, as he had been doing successfully since his medical conditions became acute in 2009. Indeed, Kovaco successfully performed his job with the use of the electric cart for the entire seven weeks from February 1, when he returned to work following a brief FMLA leave, through March 22-23, the last shift Kovaco worked. Kovaco’s medical condition did not change between his last shift worked and March 24, the date the SSA retroactively determined (months later) that Kovaco’s eligibility for social security benefits began. And the court acknowledged that Rockbestos’s stated reason for discharging Kovaco had nothing to do with any performance concerns related to any medical restrictions. IV-JA.1080, 1085. The only thing that changed during Kovaco’s last week of work was the confirmation of Kovaco’s fear that absent a dedicated cart, which his managers had refused to provide, a cart might be unavailable when he needed one to do his job.

Despite Kovaco’s undisputed evidence that he was able to perform his job satisfactorily with the use of an electric cart, the district court relied on the SSA’s determination of “disability” as conclusive proof that Kovaco could not perform the essential functions of his former job, stating that “an electric cart would not remedy the majority of job-related deficiencies.” IV-JA.1084-85. The only inconsistency the court noted, however, was Kovaco’s statement on his SSA application that he frequently lifted between forty and fifty pounds and the SSA’s determination that Kovaco was limited to lifting up to twenty pounds occasionally. IV-JA.1084-85.

There is no evidence that before Kovaco went out on FMLA leave in January 2010 or when he returned to work on February 1, he had any restrictions on the amount of weight he could lift on the job. Nor is there any evidence that during the seven weeks he worked after his return from FMLA leave, Kovaco’s job required him to lift more weight than he was physically able. It is likely that this is the reason the question of “accommodating” a “lifting restriction” is not addressed in the record—because whatever weight Kovaco had to lift when he worked, he was able to do it as long as he had access to the electric cart to assist with his mobility limitations. Indeed, Kovaco applied for disability benefits only after Rockbestos suspended him for using the only cart available on March 19. Kovaco had used the cart that day, despite the OSHA tag on it, because otherwise he would have been unable to complete his assigned tasks. His suspension and subsequent discharge for having done so underscored the unreliability of Rockbestos’s plan to accommodate Kovaco’s mobility limitations through shared use of the electric cart, a realization that led him to seek disability benefits. In this respect, this case resembles DeRosa, where this Court held that the plaintiff’s SSDI application and his ADA claim were reconcilable by the fact that DeRosa applied for SSDI only after his employer withdrew an existing accommodation. DeRosa, 595 F.3d at 101-02, 104-05.

The SSA’s anomalous statement that it believed Kovaco had a twenty-pound lifting limitation as of March 24, 2010, is not dispositive of Kovaco’s ADA claim. Despite an apparent inconsistency between the SSA’s unattributed reference to a lifting limitation in its disability determination and Kovaco’s description of the forty-to-fifty-pound weight his job sometimes required him to lift, a reasonable jury could find that Kovaco’s satisfactory job performance for the prior five years, including the seven weeks immediately preceding his suspension, demonstrated that he could, in fact, perform the essential functions of the job when he was accommodated with an electric cart. See Smith, 727 F.3d at 957-60; Parker, 204 F.3d at 334-35.

For the same reasons that this Court and the Ninth Circuit reversed the district courts’ grants of summary judgment in DeRosa, Parker, and Smith, Kovaco should be allowed the opportunity to explain to a jury any apparent inconsistency between his ADA claim and his receipt of SSDI. Summary judgment on Kovaco’s ADA claim of discriminatory discharge should, therefore, be reversed.

CONCLUSION

For the foregoing reasons, the EEOC urges this Court to reverse the district court’s grant of summary judgment and remand the case for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

BARBARA L. SLOAN

Acting Assistant General Counsel

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

CERTIFICATE OF COMPLIANCE

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s/ Susan R. Oxford

____________________________

Susan R. Oxford

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

Dated: November 4, 2015

ADDENDUM

Title VII of the Civil Rights Act of 1964

42 U.S.C. § 2000e-2

Unlawful Employment Practices

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … national origin;

***

(m) Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that … national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

Age Discrimination in Employment Act of 1967

29 U.S.C. § 623

Prohibition of Age Discrimination

(a) It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

Title I of the Americans with Disabilities Act of 1990, as amended

42 U.S.C. § 12111

Definitions

As used in this subchapter:

(8) The term “qualified individual” means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. …

42 U.S.C. § 12112

Discrimination

(a) No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

(b) As used in subsection (a) of this section, the term “discriminate against a qualified individual on the basis of disability” includes—

***

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;

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

[2] For example, Kovaco spent $80 to buy pizza for everyone in the maintenance department in an effort to improve his relationships with his co-workers, and posted a notice on the bulletin board to that effect. Kovaco watched from across the room as one of the employees who had been harassing him ripped the notice down, crumpled it, and threw it on Kovaco’s desk. Kovaco brought the crumpled notice to Miller. Kovaco attested he was told, “Nobody wants your fucking pizza.” III-JA.680, 703-04.

[3] A jury later ruled in Rockbestos’s favor at trial on grounds unrelated to this appeal. IV-JA.1143-45, 1166.

[4] If the plaintiff satisfies its prima facie requirement, the employer must, at the second stage, produce a legitimate, nondiscriminatory reason for its action. If the defendant does so, an inference of discrimination falls away. The plaintiff, to prevail, must then offer, at the third stage, sufficient evidence to allow a trier of fact to find that the defendant’s proffered reason is a pretext for discrimination. IV-JA.1083 (quoting Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128-29 (2d Cir. 2012)). The court here granted summary judgment on Kovaco’s discrimination claims solely on the ground that Kovaco failed to establish the “qualified” element of his prima facie case, without reaching the parties’ contentions concerning the second and third stages of the McDonnell Douglas burden-shifting process. See IV-JA.1084-85.

[5] Rockbestos has not argued, for example, that it fired Kovaco because a medical condition left him unable to continue performing the mechanic’s job. See IV-JA.500-01. Rockbestos did seek to eliminate Kovaco’s entitlement to back pay and front pay on the ground that the SSA determination establishes that Kovaco could no longer perform the job as of March 24, 2010, see I-JA.97-98, and the district court ruled in Rockbestos’s favor on this issue based on the SSA determination. IV-JA.1089. We explain in Point II, infra, that the SSA determination does not preclusively determine that Kovaco failed to satisfy his ADA prima facie case. For the same reasons, it does not preclusively determine the question of Kovaco’s entitlement to back pay and front pay.

[6] We recognize that the court did not expressly address Kovaco’s hostile-work-environment claim in its decisions granting and reaffirming summary judgment. IV-JA.1077-92, 1141-42. If Rockbestos never moved for summary judgment on Kovaco’s hostile-work-environment claims, then the court erred in granting summary judgment on them, particularly after Kovaco called them to the court’s attention in a supplemental brief that the court accepted. See R.119-1; R.120 (I‑JA.13). The court, however, understood Rockbestos as having filed a motion for summary judgment “on all counts.” IV-JA.1077. Therefore, the court’s summary judgment decision is properly read to include Kovaco’s hostile-work-environment claims as part of his Title VII and ADEA claims of discrimination leading up to his discharge.