The Commission offered evidence that before Kristy Sones had an epileptic seizure at work in late May 2009, she was a valued LHC employee, first as field nurse and then as team leader, receiving no significant criticisms of her performance or demeanor. After her seizure, things changed. Her supervisors claim that they criticized her performance and demeanor repeatedly and severely, but significant portions of these critiques were unfounded, misdirected, or fabricated. Shortly after LHC first criticized Sones’s performance, the company abruptly terminated her as team leader, without discussing with her whether she could return to her former position as field nurse. Two LHC managers also made statements revealing their dismay that she had experienced a seizure and tying her termination to her epilepsy. On this record, as the EEOC argued in its opening brief, the district court erred in granting LHC summary judgment.

LHC has responded primarily by arguing that the Commission did not even establish a prima facie case of discrimination or failure to accommodate, and that even if the agency did create a prima facie case, it failed to show that the company’s reasons for its actions were pretextual. We urge this Court to review the record evidence in the light most favorable to the Commission, reject LHC’s arguments, and reverse the district court’s order.

I. The district court erred in granting summary judgment on the EEOC’s claim that LHC terminated Sones as team leader because of her disability.

The Commission offered evidence showing that LHC terminated Sones from her team leader position because of her disability. The company claims it terminated Sones primarily because of alleged performance deficiencies and secondarily because of purported problems with her demeanor. LHC br. at 5–9. The company claims its termination decision was unrelated to Sones’s disability, epilepsy, or to the seizure she experienced. The appropriate proof paradigm is therefore McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as LHC acknowledges. LHC br. at 16–17. See Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (Americans with Disabilities Act (ADA) plaintiffs can use McDonnell Douglas); see also McMillan v. City of New York, 711 F.3d 120, 129 (2d Cir. 2013) (“When the reason given by the employer for the adverse employment action is unrelated to the employee's disability, the McDonnell Douglas approach can be used . . . .”). The principal issue thus is whether LHC terminated Sones because of these alleged performance and demeanor problems or because of her disability.

LHC maintains first that the Commission failed to establish a prima facie case of discrimination because it failed to show that Sones was qualified to be a team leader. LHC br. at 20–21, 24–29. The company’s arguments ignore relevant Fifth Circuit precedent and fail to view the record evidence (and the inferences one can draw from that evidence) in the light most favorable to the Commission.

Under the McDonnell Douglas framework, this Court has held that when an employment-discrimination plaintiff was fired for alleged performance deficiencies, as Sones was, she is not required to rebut the employer’s criticisms of her performance in order to show, at the prima facie stage, that she was qualified. See Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349–51 (5th Cir. 2007) (Age Discrimination in Employment Act (ADEA) case); Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1505–06 & n.3 (5th Cir. 1988) (same); see also EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 n.6 (5th Cir. 2009) (relying on ADEA precedent in ADA case because “[t]he McDonnell Douglas framework . . . is used in cases alleging discrimination under many different statutes”). Instead she must show initially only that she “‘continued to possess the necessary qualifications for [her] job at the time of the adverse action.’” Berquist, 500 F.3d at 350 (quoting Bienkowski, 851 F.2d at 1506 & n.3). Scrutiny of the employer’s accusations is properly part of the pretext analysis. See id. at 351 (“‘[P]lacing a plaintiff’s “qualifications” at issue at both the prima facie [ ] and pretext stages of a termination case is an unnecessary redundancy.’”) (quoting Bienkowski, 851 F.2d at 1505); see also id. at 350 (noting that Fifth Circuit “simplif[ies]” the prima facie case in termination cases so that “‘[t]he lines of battle may then be drawn over the employer’s articulated reason for its action and whether that reason is a pretext for . . . discrimination’”) (quoting Bienkowski, 851 F.2d at 1506).

The Commission offered sufficient evidence to show Sones was qualified to be a team leader for purposes of establishing a prima facie case. First, LHC promoted Sones into the team leader position, and Sones “continued to possess the necessary qualifications for [her] job,” Berquist, 500 F.3d at 350. ROA.1406, ER:56 (Sones dep. 39–40) (LHC promoted Sones to team leader in March 2009); ROA.1991 (Taggard dep. 37) (Sones became team leader on a trial basis); ROA.1524 (May 7 Taggard email announcing Sones’s position as team leader of the new Team C); ROA.1520 (May 15 email acknowledging Taggard’s request for a “new computer for Team C team leader Kristy Sones”). LHC insists in its brief that it did not promote Sones to the team leader position, LHC br. at 4, but in doing so it ignores the record evidence to the contrary. Second, the company documented no criticism of her performance or demeanor—and did not even communicate such criticism to her orally—until after her seizure. ROA.1409 (Sones dep. 40) (neither Taggard nor Guchereau criticized Sones’s performance as team leader until June 19, after her seizure). See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 39 (2d Cir. 1994) (one legitimate inference from the failure of plaintiff’s supervisors to criticize his work is that his work was satisfactory). Third, LHC offered her a promotion from team leader to branch manager. ROA.1454; ER:72 (Sones dep. 226–27). See Hussain v. Highgate Hotels, Inc., 126 F. App’x 256, 264 (6th Cir. 2005) (“An employer generally would not . . . offer [an employee] a promotion unless that employee was satisfying the employer’s performance expectations.”).

LHC makes a second argument challenging the EEOC’s prima facie case. LHC argues that there always must be four prongs in the prima facie case and the Commission failed to establish the fourth prong because it did not offer evidence that “LHC replaced Sones with a non-disabled person” or “treated [her] less favorably than any non-disabled employees.” LHC br. at 30–31. But as the Commission’s opening brief pointed out, EEOC br. at 15–16, this Court has often described an ADA plaintiff’s prima facie case as having only three prongs: she has a disability, she was qualified for the position, and she suffered an adverse action because of her disability. See, e.g., Shirley v. Precision Castparts Corp., 726 F.3d 675, 680 (5th Cir. 2013) (three prongs); Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 614 (5th Cir. 2001) (same); Rizzo v. Children’s World Learning Ctrs., Inc., 213 F.3d 209, 215–16 (5th Cir. 2000) (en banc) (same). This three-prong statement of the prima facie case mimics the statutory language: “No covered entity shall discriminate against a qualified individual on the basis of disability . . . .” 42 U.S.C. § 12112(a). LHC does not respond to the cases the EEOC cited in its brief, EEOC br. at 15–16, nor does it explain how requiring the fourth prong in every case is consistent with the statutory language.

Employment-discrimination plaintiffs do have to raise an inference of discrimination, but they are not restricted in how they raise that inference. See, e.g., Palasota v. Haggar Clothing Co., 342 F.3d 569, 575–76 (5th Cir. 2003) (per curiam) (fourth prong for age-discrimination plaintiff requires showing he was replaced by someone younger “‘or . . . otherwise discharged because of his age’”) (emphasis in original) (quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)). Here the Commission raised an inference of disability discrimination—and showed pretext—with three types of evidence: evidence that LHC did not criticize Sones’s performance as team leader before her seizure, but then shortly after her seizure criticized her performance severely and quickly terminated her; evidence that some of LHC’s criticisms of Sones’s performance were exaggerated, unfounded, or fabricated; and evidence of two statements, one by Taggard and one by Brown, suggesting that LHC terminated Sones because the company feared incurring liability should she suffer another seizure. See EEOC br. at 20–26. LHC’s attempts to controvert or dismiss this evidence should be rejected.

First, the Commission explained in its opening brief how the glaring contrast between LHC’s failure to criticize Sones’s performance as team leader before her seizure and the severe criticism the company administered shortly after her seizure, leading very rapidly to her termination, is central to its case. EEOC br. at 20-21. Cf. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42–43 (5th Cir. 1992) (affirming district court’s finding of retaliation because defendant’s evaluation of plaintiff’s performance plunged after she filed a charge). LHC fails to challenge the Commission’s argument legally or factually.

The company does not respond to the cases the Commission relied on to support its argument or cite any authority holding that it would be improper for a jury to rely in part on such evidence to find that LHC’s criticisms were pretextual and that the company terminated Sones because of her disability. Nor does LHC controvert the Commission’s description of the relevant evidence. The company twice quotes the district court’s statement that “[Sones’s] deficient performance was noted both before and after her seizure,” LHC br. at 26 (statement emphasized), 39. In discussing the evidence, though, LHC often refers to criticisms or meetings without giving the relevant dates, evidently hoping to leave the impression that Sones’s supervisors must have communicated some of these criticisms to her before her seizure. The bottom line, however, is that LHC cites to no record evidence that Taggard or Guchereau ever told Sones before her seizure that her performance as team leader was deficient.^{^[1]} Since there is evidence that neither Taggard nor Guchereau criticized Sones’s performance as team leader before her seizure, and no evidence that they did, it is undisputed that they did not.

Second, the Commission offered testimony that some of LHC’s criticisms of Sones were exaggerated, unfounded, or fabricated. For example, Taggard testified that she met with Sones weekly (and specifically on June 11 and 12) to criticize her performance as team leader, ROA.1998 (Taggard dep. 68), ROA.1559 (Taggard notes of alleged meetings), but Sones testified that the first time Taggard ever criticized her performance as team leader was on June 19, ROA.1409, ROA.1414 (Sones dep. 47–48, 68). Moreover, in reviewing the criticisms that Taggard discussed with Sones on June 19, Sones testified that once she explained the chronology, Taggard and Guchereau agreed that Sones had not scheduled an unnecessary visit to the patient with a purple leg. ROA.1439 (Sones dep. 165–67). Sones also testified that she was not rude or loud with staff, ROA.1439–40 (Sones dep. 168–69), and that the person primarily responsible for the mistakes affecting patients GLF1288 and GLF3836 was Sones’s assistant, not Sones, ROA.1440–41 (Sones dep. 171–73).

Third, with respect to the Taggard and Brown statements, LHC contends that the Commission “severely mischaracterizes” this evidence. LHC br. at 35. Yet the company does not specify any way in which the EEOC has mischaracterized the evidence relating to the Taggard statement (other than by arguing it was admissible), and LHC’s comments about the evidence relating to the Brown statement are that the statement is “vague” and “‘consistent with LHC’s reasons for terminating Sones.’” LHC br. at 37 (quoting ROA.3242).^{^[2]} The Commission in fact acknowledged that Brown’s statement can be viewed as consistent with LHC’s articulated reasons, but argued that the district court erred in viewing the statement in the light more favorable to LHC on summary judgment. EEOC br. at 25.

LHC also argues that the Commission failed to offer admissible evidence of these statements. LHC br. at 35–37 & n.27. The Commission offered evidence that Taggard told Sones on June 19 that “if [her] disability manifested again while [she] was on the job, the [company] would be in trouble.” ROA.2921, ER:73. The Commission argued that this evidence was admissible because Taggard’s statement was an admission against interest by an LHC agent and because Sones had personal knowledge of Taggard’s statement and signed her charge under penalty of perjury. EEOC br. at 23. LHC does not challenge these assertions. It instead argues that the evidence is inadmissible because it was a statement in Sones’s charge and charges are never “competent summary judgment evidence.” LHC br. at 35–36.

LHC fails to respond to the case authority the Commission cited holding that the charge a plaintiff swore to can be admissible evidence at summary judgment. See EEOC br. at 23. Instead, LHC cites several out-of-circuit district court decisions that rely primarily on each other and that are either questionable or distinguishable. LHC br. at 36 n.27. For example, Walker v. Fairfield Resorts, Inc., No. 05-153, 2006 WL 724555 (M.D. Tenn. Mar. 21, 2006), did not hold that the charge in question there, which had been filed not by the plaintiff but by one of the plaintiff’s former co-workers, was inadmissible. Rather, the court ruled that the statement in the former co-worker’s charge did not support the plaintiff’s claim. Id. at *8. The court observed in passing that “[t]here is authority for the proposition that an EEOC charge is presumed to be inadmissible in evidence.” Id. The only decision Walker cited for this statement was Stolarczyk v. Senator International Freight Forwarding, LLC, 376 F. Supp. 2d 834, 841 (N.D. Ill. 2005), and the Commission pointed out in its opening brief that the facts in Stolarczyk were quite unusual because the employee who filed the charge there died before the defendant had an opportunity to cross-examine her. See EEOC br. at 23–24. Stolarczyk should thus be distinguished on its facts, because LHC deposed Sones and was free to cross-examine her about the statement in her charge, but chose not to.

More importantly, the Stolarczyk court ruled that the statements in the charge that Stolarczyk sought to rely on were inadmissible hearsay. Stolarczyk, 376 F. Supp. 2d at 838, 840–42.^{^[3]} That is not true here, because Sones’s statement was based on her personal knowledge and Taggard’s statement was an admission by the opposing party’s agent: Taggard was Sones’s supervisor, and discussing with Sones management’s opinions and feelings about her was within the scope of Taggard’s duties. See, e.g., Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1456 (11th Cir. 1997) (“[S]tatements made by a supervisory official who plays some role in the decision making process are generally admissible [under Fed. R. Evid. 801(d)(2)(D)].”); Marra v. Phila. Hous. Auth., 497 F.3d 286, 297–99 (3d Cir. 2007) (where the plaintiff, a supervisor, testified that his superior warned him that supervisors would face repercussions if they gave testimony supporting the employees who were suing the employer, the testimony was admissible under Fed. R. Evid. 801(d)(2)(D) even though that superior was not involved in the employer’s subsequent decision to terminate the plaintiff).

In citing Stolarczyk, the Walker court noted that a charge is “inherently unreliable” because it is “drafted in anticipation of litigation.” Walker, 2006 WL 724555 at *8. But this Court ruled in Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998), that statements in a plaintiff’s verified complaint are admissible at summary judgment as long as the plaintiff was competent to testify and the statements were within the plaintiff’s personal knowledge and otherwise admissible. Id. at 240 n.6 (relying on Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80–81 (5th Cir. 1987) (reversing summary judgment because a statement in the defendants’ verified answer raised a material factual dispute)). Moreover, parties can clearly rely on affidavits at summary judgment. Fed. R. Civ. P. 56(c)(1)(A). Verified pleadings and affidavits are drafted more directly in anticipation of litigation than a charge is. If statements in a verified complaint or an affidavit are not inadmissible because the documents were prepared in anticipation of litigation, statements in the charge that Sones swore to are, a fortiori, not inadmissible on that ground, either.

The other case LHC relies on is Johnson v. AutoZone, Inc., 768 F. Supp. 2d 1124 (N.D. Ala. 2011). LHC br. at 36 n.27. Johnson in turn relied on Walker and Stolarczyk (both discussed supra), and on Frazier v. Ind. Dep’t of Labor, No. 01-198, 2003 WL 21254424 (S.D. Ind. Mar. 17, 2003). Johnson quoted a passage from Frazier stating broadly that all of the documents in an EEOC investigative file—including the charges filed by the plaintiff or by the plaintiff’s co-workers and the position statement submitted by the defendant—are “inadmissible for a number of reasons, including on the basis of relevance, a Rule 403 balancing test, and hearsay.” Johnson, 768 F. Supp. 2d at 1134 n.82 (quoting Frazier, 2003 WL 21254424, at *4). The Frazier court admitted that there are exceptions to this broad rule, because it allowed the plaintiff to introduce the position statement that his employer had submitted to the EEOC in response to his charge. Frazier, 2003 WL 21254424, at *4. Moreover, the only authority that the Frazier court cited for the broad proposition was Tulloss v. Near North Montessori School, 776 F.2d 150, 154 (7th Cir. 1985), and Tulloss does not support the Frazier court’s broad statement, especially with respect to statements in the charge a plaintiff filed.

In Tulloss, the plaintiff had asked the district court to admit into evidence the EEOC’s entire investigative file dealing with her charge, which contained such items as newspaper articles, statements by the plaintiff’s friends and supporters, the investigator’s opinions, and letters relating to settlement negotiations. Tulloss, 776 F.2d at 154. The district court refused to admit the entire file, but said it would allow the plaintiff to offer individual items from the file and rule on their admissibility then. Id. at 154–55. The Seventh Circuit found no abuse of discretion. Id. Thus Tulloss hardly stands for the proposition that nothing in an EEOC investigative file is admissible, and the decision says nothing about whether the charge that the plaintiff swore to is admissible.

LHC asserts briefly (without citing any authority) that Sones’s testimony about Brown’s statement is inadmissible hearsay, LHC br. at 37, but Brown’s statement was also clearly an admission by the opposing party’s agent. Brown was LHC’s director of human resources, and Sones alleged that Brown made the challenged statement—“We’re going to[ ] have to let you go because you’re a liability to our company.”—during the brief conversation in which Brown fired her. Under Federal Rule of Evidence 801(d)(2)(D), the statement was therefore not hearsay. See Zaben, 129 F.3d at 1456; Marra, 497 F.3d at 297–99.

Thus the evidence of Taggard’s and Brown’s statements was admissible. The district court should have considered this evidence and denied summary judgment. See, e.g., Vance v. Union Planters Corp., 209 F.3d 438, 442 (5th Cir. 2000) (workplace remarks can be “sufficient evidence of discrimination if the remarks are (1) related to [the prohibited factor]; (2) proximate in time to the employment action; (3) made by an individual with authority over the employment decision; and (4) related to the employment decision at issue”); DiCarlo v. Potter, 358 F.3d 408, 414–17 (6th Cir. 2004) (statements by decision-makers showing prohibited discrimination preclude summary judgment).

LHC relies primarily on Sones’s alleged performance and demeanor problems to justify its decision to terminate her. In its brief, however, it also argues that Sones could not perform the essential functions of the team leader position because she could not drive. LHC br. at 20–21, 24–25. The Commission maintains that a jury could find this justification pretextual as well. First, LHC learned about Sones’s driving restriction on June 1, ROA.1412 (Sones dep. 59–60), but did not terminate her then. Second, when Brown explained the company’s decision to terminate Sones as team leader, she did not refer to her driving restriction. ROA.1612–13 (Brown dep. 33–37). Third, it is far from “undisputed,” as LHC claims, that “‘more than 50% of [a team leader’s] daily assignments require travel’” to patient locations. LHC br. at 20 (quoting ROA.1375 (team leader job description)). See EEOC v. Ford Motor Co., ___ F.3d ___, 2014 WL 1584674, *7 (6th Cir. Apr. 22, 2014) (while courts “routinely defer to the business judgment of employers, . . . [they] should not abdicate [their] responsibility as . . . court[s];” courts should not “allow employers to redefine the essential functions of an employee’s position to serve their own interests”); Cripe v City of San Jose, 261 F.3d 877, 887 (9th Cir. 2001) (employer’s job description is not conclusive evidence of a position’s essential functions when the plaintiff offers countervailing evidence). Guchereau conceded that team leaders performed the bulk of their duties in the office, and she construed the “more than 50%” statement in the job description as referring to a potential need for travel rather than the actual need. ROA.1552–53 (Guchereau dep. 93-95, 99-100). Sones testified that she never saw a team leader leave the office to visit patients, ROA.1448–49, ER:69–70 (Sones dep. 204–05), and LHC offered no evidence that any specific team leader actually ever did this.

Finally, LHC contends that Sones, due to her performance deficiencies, posed a direct threat to the patients the company serves. LHC br. at 27–29. LHC relies on Robertson v. Neuromedical Center, 161 F.3d 292 (5th Cir. 1998) (per curiam), but Robertson should not govern the result here. The plaintiff in Robertson, a neurologist, admitted that even with accommodations he was unable to perform some of the essential functions of his position, id. at 295, and conceded that “it was only a matter of time before he seriously hurt someone,” id. at 296. The Commission made no such concessions here, and the relevant facts are disputed. LHC maintains that Sones made mistakes using the company’s scheduling and medical-history software that could harm patients. LHC br. at 25–27. The Commission offered evidence that the only time Taggard or Guchereau criticized Sones for such mistakes was June 19—after her seizure and three workdays before her termination—and that several of Taggard’s criticisms on the 19th were unfounded or misdirected. See evidence cited supra at pages 10–11.

In addition to evidence specifically controverting LHC’s alleged criticisms, a jury could also consider the evidence challenging the credibility of LHC’s managers. For example, Guchereau insisted that LHC never promoted Sones to team leader, ROA.1545 (Guchereau dep. 66–67), in the face of testimony to the contrary by Taggard and Sones and contemporaneous documentary evidence, ROA.1991 (Taggard dep. 37), ROA.1406 (Sones dep. 39–40), ROA.1524 (May 7 Taggard email announcing Sones’s position as team leader of the new Team C). Sones challenged Taggard’s and Guchereau’s testimony that they met with her and criticized her performance before June 19. ROA.1998 (Taggard dep. 68), ROA.1558 (Guchereau dep. 118–20), ROA.1409 & ROA.1414 (Sones dep. 47–48, 68). Taggard challenged Brown’s testimony that she (Taggard) was one of the persons who decided to fire Sones, ROA.1613 (Brown dep. 38), ROA.1993 (Taggard dep. 46), and Sones challenged Brown’s testimony that Brown and Guchereau asked her whether she wanted to take personal leave, ROA.1615 (Brown dep. 47–48), ROA.1454 (Sones dep. 227).

Thus a jury could infer from the fact that Sones’s supervisors did not criticize her performance as team leader until after her seizure and shortly before her termination, and from the fact that some of those criticisms were exaggerated and unfounded, that LHC was attempting to “paper her file” and fabricate a justification for her impending termination. A court should not grant summary judgment on a direct-threat issue if the facts underlying the direct-threat assessment are in dispute. See Taylor v. Rice, 451 F.3d 898, 906–07 (D.C. Cir. 2006) (reversing summary judgment on direct-threat issue because the plaintiff challenged the facts underlying the employer’s direct-threat assessment).

II. The district court erred in granting summary judgment on the EEOC’s claim that LHC failed to accommodate Sones’s temporary medication-based memory problems.

The Commission offered evidence showing that Sones was qualified to be team leader, see supra pages 4–6, and that she asked for help in dealing with the memory problems she was experiencing because of her new medication regimen, ROA.1413 (Sones dep. 61). LHC complains that her request for assistance was “vague,” LHC br. at 26, but Sones testified that Taggard walked away without responding to her and thus did not give Sones an opportunity to explain her request in much detail, ROA.1413–14, ER:59–60 (Sones dep. 61–62, 65).

In dismissing the Commission’s accommodation claim, the district court ruled that helping Sones use the software programs would not have enabled her to eliminate all the performance deficiencies LHC enumerated. ROA.3239, ER:46. But this ruling ignored the Commission’s evidence questioning the accuracy and veracity of LHC’s criticisms. See supra at 10–11 (discussing pretext evidence). The critical point in assessing the accommodation claim is that Sones identified problems she was experiencing in the aftermath of her seizure and suggested an accommodation that was “reasonable in the run of cases.” Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996). Since Sones was having trouble, due to her medication, remembering her passwords and how the software programs worked, it would be “reasonable in the run of cases” to help her remember her passwords and how the programs worked. Instead, when Sones asked Taggard for assistance, Taggard ignored the request and walked away. A jury could therefore find that LHC refused to entertain Sones’s request for assistance and instead fired her, and therefore violated the ADA. See Chevron Phillips, 570 F.3d at 621–22 (jury could find ADA violation where the plaintiff presented her doctor’s release to her supervisor and he refused to acknowledge it or discuss it and instead terminated her).

III. The district court erred in granting summary judgment on the EEOC’s claim that LHC violated the ADA by failing to discuss with her the accommodation of allowing her to work as a field nurse.

The Commission noted in its opening brief that Sones had an excellent work record in her former position as field nurse, and that LHC fired her without talking with her about whether she could return to that position. EEOC br. at 3, 11 & n.6, 32. LHC’s response is that it had no duty to accommodate her because her driving restriction precluded her from working as a field nurse. LHC br. at 20–24, 41–42.

Field nurses spend the bulk of their time providing home health care and therefore do have to travel to visit their patients. But driving is not an essential function of the position. Field nurses are not like taxicab drivers or truck drivers, who are hired to drive. Field nurses are hired to provide home health care. The very job descriptions that LHC relies on (LHC br. at 20) state that field nurses (and team leaders) may travel to visit patients “via car or public transportation.” ROA.1367 (field nurse), ROA.1375 (team leader); see also ROA.1992 (Taggard dep. 41) (acknowledging that using public transportation was an option).

LHC next castigates the Commission for “completely ignor[ing] the undisputed lack of reliable public transportation in the Picayune area.” LHC br. at 22 (emphasis added).^{^[4]} But then on the next page LHC concedes that the Commission in fact offered evidence that Picayune does have reliable public transportation. LHC br. at 23. LHC denigrates Sones’s testimony about the van service as “vague[ ],” LHC br. at 23, but aside from not remembering the business name of the van service, her testimony was quite precise. ROA.1417 (Sones dep. 78). Sones testified that Picayune does have “public transportation. . . . It’s not like a cab. It’s more like a van service. . . . You can pay them. They’ll take you where you need to go.” Id. Anyone can use the service, she testified, and there are no restrictions on where the van will take you. Id. Sones also offered evidence that she could visit her patients if she found someone else to drive her. ROA.1414 (Sones dep. 66–67). With this evidence before it, the district court erred in ruling that no reasonable accommodation existed that could enable Sones to work as a field nurse. Cf. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 217–19 (2d Cir. 2001) (reversing summary judgment where defendant denied plaintiff promotion because plaintiff lacked a driver’s license but failed to engage in an interactive process with plaintiff about alternative methods of transportation).

Conclusion

As set forth supra, the Commission offered sufficient evidence supporting a verdict in its favor on each of its claims. The Commission therefore urges this Court to reverse the district court’s decision as to each claim.

[1] See, e.g., LHC br. at 5 (citing ROA.1546, listing deficiencies Guchereau allegedly observed during Sones’s training, with no testimony that Guchereau told Sones about them at the time; and ROA.1563–64, discussing criticisms delivered on June 19); LHC br. at 6 (citing ROA.1558, showing that Guchereau did not know when the alleged weekly meetings started; ROA.19998, showing that Taggard did not remember when they began, either; ROA.1680–81, ROA.1687, ROA.1692, and ROA.1696–98, testimony by Wormser, who trained Sones but was not her supervisor; and ROA.1559, where Guchereau testified that she learned of staff complaints about Sones before her seizure, but did not testify that she communicated these complaints to Sones before her seizure); LHC br. at 25–26 (citing ROA.1369–70 as evidence that Sones’s performance deficiencies were undisputed, when ROA.1369–70 is merely a job description); LHC br. at 26, n.20 (citing ROA.1378, referring to meeting held June 19); LHC br. at 34 (citing ROA.1560 and ROA.1377–78, discussing criticism allegedly delivered on June 11,12, and 19).

[2] In its brief, LHC labels evidence favoring the Commission as “vague” and evidence favoring the company as “undisputed.” LHC br. at 20 (undisputed that team leaders spent more than 50% of their time driving), 22 (undisputed that no public transportation exists in Picayune), 23 (Sones’s testimony about the van service was vague), 25 (undisputed that Sones could not perform a team leader’s essential functions), 26 (Sones’s request for computer assistance was vague). These labels are rarely justified. See infra pages 13–14, 16, 17–18. LHC also refers to Sones’s seizure, which she suffered at work and which required that she go to the hospital in an ambulance, as an “alleged seizure.” LHC br. at 9. LHC has offered no evidence that Sones did not suffer a real seizure.

[3] Stolarczyk evidently conceded that the statements in the charge were hearsay. He did not argue that the statements in the charge were admissible under Fed. R. Evid. 801(d)(2)(D). His only argument was that even though the statements were hearsay, the court should admit them under Fed. R. Evid. 807, the residual exception. 376 F. Supp. 2d at 840–41.

[4] LHC contends that Sones conceded that a field nurse could not use public transportation. LHC br. at 23. But the crucial question was clearly a historical one, asking Sones how she traveled to patients’ homes when she worked as a field nurse: “‘How did [you] get from the office to the patient’s home?’” LHC br. at 23 (quoting ROA.1405 (Sones dep. 29)) (emphasis added). Nor did counsel ask Sones whether there were other ways she could have traveled to visit her patients. ROA.1405 (Sones dep. 29).

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