This is an appeal of summary judgment in a case alleging that River Region Medical Center violated the Americans with Disabilities Act when it refused to accommodate charging party Beatrice Chambers’s disability and then fired her when she attempted to return to her job following shoulder surgery and a medical leave.

In the Commission’s opening brief, we emphasized that there is sufficient evidence in the record to support a finding that Chambers could perform her job as an LPNII/Technician in the GI Lab with either of the reasonable accommodations she requested—two weeks of additional leave or a return to her job the day after her FMLA leave ended with a temporary light duty modification until her shoulder fully healed. We pointed out that Chambers was recuperating as expected from a successfully-performed, routine surgery from which her doctor expected her to recover fully, was seeing a physical therapist, and was seeing Dr. Porter regularly, which was reported to River Region. We noted that Chambers’s coworkers in the GI Lab testified that they had not been overburdened by her medical leave and that they could share her duties without difficulty for two additional weeks. Chambers was in fact released from her doctor’s care without restriction two weeks after she was fired.

We also argued that allowing Chambers to return to her regular job in the GI Lab on October 13, 2011, with some minor modifications to limit the use of her left arm and heavy lifting would have been a reasonable accommodation. River Region rejected both of Chambers’s requests for accommodation out of hand. Her termination was effective two days after her FMLA leave expired. We argued that the hospital did not—and could not—establish that granting either accommodation would have been an undue hardship.

We also argued that the district court’s grant of summary judgment based on Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999), should be reversed because nothing on Chambers’s short-term disability benefits application is inconsistent with the Commission’s position that she could perform the essential functions of her job with reasonable accommodation at the time she was fired. We pointed out that Cleveland involved statements made under oath to the Social Security Administration to obtain Social Security Disability Insurance for lengthy, chronic illnesses, and has not been used to disallow ADA cases involving only short-term disability claims. The Commission also argued that, even if there was an apparent inconsistency, the EEOC offered a sufficient explanation that Chambers could perform her job had River Region provided her with a reasonable accommodation.

In its brief in response, River Region argues that summary judgment should be affirmed because the district court correctly ruled the Commission failed to make the requisite showing under Cleveland. Although the district court did not reach these issues, River Region also argues summary judgment can be affirmed because it reasonably accommodated Chambers and the accommodations Chambers proposed were not reasonable and, in any event, Chambers could not perform the essential functions of her job with or without reasonable accommodation. In so arguing, River Region misapplies Cleveland, ignores disputed evidence in the record, distorts the factual record and the Commission’s arguments on appeal while ignoring the axiomatic principle that in assessing the propriety of summary judgment, this Court must accept as true the facts as stated by the Commission and draw all reasonable inferences in its favor.

The Commission submits this reply brief to refocus the appeal on the correct legal standards, clarify the factual record, and respond to River Region’s mischaracterization of the evidence and applicable law.

ARGUMENT

1. The Supreme Court’s decision in Cleveland does not support the district court’s dismissal of the Commission’s case on summary judgment.

In its opening brief, the Commission argued that the district court’s holding in this case that Chambers’s assertion of temporary total disability on a short-term disability benefits application was inconsistent with the EEOC’s ADA suit and rendered her unqualified is not supported by, and is contrary to, the Supreme Court’s decision in Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999). Cleveland held that a disabled employee’s statements asserting total, permanent disability to the Social Security Administration in applying for Social Security Disability Insurance (SSDI) did not preclude arguing in an ADA action that the individual was a qualified individual within the meaning of the ADA. See 526 U.S. at 805.

The Commission argued that the district court ignored the extensive evidence that Chambers was qualified and erroneously extended Cleveland to preclude an ADA case involving short-term disability benefits for an individual who was temporarily totally disabled. Unlike the ADA, the Commission argued, short-term disability benefits programs do not take potential reasonable accommodation into account and are, by definition, a form of income replacement to cover temporary disabilities for a short period of time. See EEOC Br. at 40.

River Region argues that it is inconsequential that the cases it cites raising the Cleveland estoppel argument involve representations on SSDI applications about long term, permanent disabilities, in contrast to Chambers, who was nearly recovered from a routine, successfully-performed shoulder surgery and who applied for short-term disability benefits after she was told she was being fired. See Def. Br. at 23-24. River Region also claims that courts have “consistently” applied Cleveland beyond SSDI claims. See id. at 23.

But contrary to River Region’s assertion, it is highly significant that Chambers was applying for short-term disability benefits because the fact that she was disabled only temporarily meant there was no conflict with the assertion that she was qualified under the ADA. As the EEOC argued in its opening brief, the plaintiff in Cleveland represented that she was permanently unable to work, and it was the permanence of her serious medical condition and assertion that she was unable to work that potentially was in tension with her claim that she was qualified within the meaning of the ADA. See EEOC Br. at 36 (discussing Cleveland). For example, the nurse in Norville v. Staten Island University Hospital, 112 F. App’x 92 (2d Cir. 2004), a case cited by River Region (Def. Br. at 23), suffered a spinal injury that caused her to take a leave of absence for a year. See Appellant’s Brief in Norville v. Staten Island Univ. Hosp., No. 03-9293, 2004 WL 5825351, at *6 (2d Cir. March 10, 2004).

River Region argues that Cleveland has been extended beyond cases involving SSDI claims, but fails to cite a case applying Cleveland to a case like this, where an ADA claimant sought only short-term disability benefits. For example, River Region characterizes Fewer v. Copper & Brass Sales, Inc., 183 F. App’x 696 (9th Cir. 2006), as a case applying the Cleveland analysis to short-term disability benefits. Def. Br. at 23-24. However, in addition to short-term disability benefits, the plaintiff in Fewer also received disability insurance benefits from the State of California for approximately eleven months during and after a five-month leave of absence from his job. See Appellees’ Brief in Fewer v. Copper & Brass Sales, Inc., No. 04-56737, 2005 WL 2394369, at *11 (9th Cir. May 11, 2005). Fewer’s doctor repeatedly informed his employer that he was “totally incapacitated” from a back injury sustained in September 2001. Id. at *5. Over a year later, in 2003, Fewer applied for SSDI benefits and certified that he was unable to work because of the same back injury. Id. at *19.

River Region also maintains that Austin v. Bell South, No. 06-7464, 2008 WL 215565, at *7 (E.D. La. Jan. 24, 2008), was a short-term disability case where Cleveland governed. Def. Br. at 24. But again, the plaintiff in Austin sought SSDI benefits and long-term disability benefits as well. The basis of the plaintiff’s disability applications and FMLA leave was a lengthy list of medical issues including “severe pain, depression, stress, diabetes, chronic bronchitis, ulcers, HTN, IBS, carpal tunnel, hemorrhoids, hiatal hernia, headaches, bleeding, acid reflux, accident injuries, neck pain, ankle pain.” Most importantly, the plaintiff in that case, unlike Chambers, was completely unable to work. Id. at *3.

In Holtzclaw v. DSC Communications Corporation, the plaintiff initially applied for and received short-term disability benefits. 255 F.3d 254, 257 (5th Cir. 2001). But the plaintiff subsequently applied for long-term disability and SSDI benefits, stating that his chronic pancreatitis made him “unable to work at all,” would prevent him from ever returning to work, and could not reasonably be accommodated by an employer. Id. It was these statements that the plaintiff made to the long-term disability insurer and the Social Security Administration that created the Cleveland issue. This Court made no mention of the plaintiff’s prior short-term disability leave in finding inconsistencies in his statements. Id. at 258.[1]

These cases do not support River Region’s assertion that the district court’s reliance upon Cleveland in dismissing the Commission’s case was correct. The key distinction between this case and those cited by River Region is the temporary nature of Chambers’s disability. Unlike the plaintiffs in the cases River Region cites, Chambers was temporarily disabled due to a routine surgery with a predictable and brief recovery period. Chambers expected to be, and was, fully healed in a matter of weeks from the date her FMLA leave ended. She was never permanently unable to work. In fact, she requested two very modest accommodations that would have allowed her to perform her job, and only applied for short-term disability benefits after HR Generalist Patricia Watson informed her that she was going to be fired and had been replaced.

Additionally, as the EEOC discussed in its opening brief when it addressed the cases relied upon by the district court, it was those plaintiffs’ detailed factual representations on their disability applications about their serious, chronic medical conditions and their total and permanent inability to work that posed the potential conflicts with their ADA claims. See EEOC Br. at 45-50. In contrast, Chambers made almost no specific factual assertions on her short-term disability application about her medical condition or her ability to perform her job that properly could be considered inconsistent with the Commission’s ADA claim. See Tullos v. City of Nassau Bay, 137 F. App’x 638, 647 (5th Cir. 2005) (explaining that “[t]o determine whether [the plaintiff’s] receipt of disability benefits renders him unqualified for purposes of an ADA claim, we would need to evaluate the specific assertions he made to obtain those benefits, along with his explanation of any inconsistencies”); McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 466 (5th Cir. 2005) (“[C]omparing plaintiffs through the lens provided by Cleveland, estoppel will apply in those cases, like Reed, where the plaintiff’s factual descriptions supporting disability preclude the possibility of qualification as of a certain date.”).

On Chambers’s one-page short-term disability application, she notes the diagnosis she received (left rotator cuff tear), that her treatment had been “surgery on 7/21/11,” and that her anticipated return date to full-time work was “unknown.” RE-T.5 (ROA.1028). Dr. Porter similarly filled out the physician’s one-page form listing her diagnosis and dates of treatment. RE-T.6 (ROA.1030). He wrote “7/21/11” through “unknown” as the dates of temporary total disability (inability to work), and wrote “unable to determine at present time” in response to the form’s question on the period of temporary total disability. Id. Compare McClaren, 420 F.3d at 466 (“[McClaren’s] disability application contains broad descriptions of his pains, injuries, health conditions, and inability to work.”), Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 480 (5th Cir. 2000) (“Reed also made specific factual statements which are inconsistent with her claim that she could fly a helicopter. . . .”), and Motley v. N.J. State Police, 196 F.3d 160, 166 (3d Cir. 1999) (“Rather than a general allegation of disability, Motley offered detailed descriptions of his injuries and their impact on his ability to work.”), with Self v. BNSF Ry. Co., No. 14-618, 2016 WL 543245, at *9 (W.D. Tex. Feb. 9, 2016) (“[T]he information Self provided is highly general: his application summary simply states ‘I am applying for a benefit based on being disabled.’”). The statements made in Chambers’s short-term disability application, like those in Self, do not conflict with the EEOC’s claim that she was qualified under the ADA. Id. at *9 (“Self’s application for disability benefits does not describe specific symptoms which, if accepted as true, would render him unable to perform his duties.”).

The Commission also argued in its opening brief that even if the representations on Chambers’s short-term disability application “appear” inconsistent with the Commission’s claim that Chambers was qualified, the Commission offered abundant evidence in the district court to establish that Chambers was qualified within the meaning of the ADA and made a particularized showing that reasonable accommodations were possible. See EEOC Br. at 42-45 (citing Crossley v. CSC Applied Techs., 569 F. App’x 198, 199 (5th Cir. 2014)).[2]

River Region also inaccurately states that the Commission’s explanation for any apparent conflict was limited to arguing that it was unfair to penalize Chambers for applying for disability benefits after her termination, then argues this is insufficient under Cleveland. See Def. Br. at 25-26. This mischaracterizes the Commission’s position in the district court and the arguments made to this Court on appeal. In the EEOC’s brief opposing summary judgment, the Commission argued that “qualified individual” under the ADA and “disabled” within the meaning of the short-term disability policy “are not mutually exclusive.” See ROA.1250. The EEOC noted that “nothing in the [short-term disability application] documents” “indicate Chambers represented that she was unable to perform the essential functions of her job with or without an accommodation. To the contrary, the same Dr. Porter who completed the claim form Defendant cites also indicated in another document that Chambers was able to perform the essential functions of her job, as of October 13, 2011.” Id.

Additionally, the Commission offered evidence that Chambers requested and was denied two weeks of additional leave and a light duty modification to her job, either of which would have allowed her to perform her job. The Commission noted that Chambers applied for short-term disability on October 13 or 14, 2011, “only after she sought and was refused an accommodation, was denied a good faith interactive process, and was told not to return to work.” ROA.1251. The Commission offered extensive evidence that would support a finding that both accommodations sought were reasonable. See EEOC Br. at 27-31; see also ROA.1230-49 (EEOC brief in opposition to summary judgment). This “particularized showing that reasonable accommodations were possible” would permit a jury to find that Chambers could perform her job with accommodation at the same time she was temporarily totally disabled for purposes of the short-term disability benefits application. See Cleveland, 526 U.S. at 807 (explanation must be sufficient to warrant a reasonable juror’s concluding the plaintiff could nonetheless perform the essential functions of her job, with or without reasonable accommodation despite earlier statement on disability application); Crossley, 569 F. App’x at 199 (particularized showing that reasonable accommodations were possible is required to overcome summary judgment).

River Region contends that the short-term disability claim form “makes clear Chambers was not a qualified individual at the time she was terminated” because Porter listed the end date of her temporary disability as “unknown.” Def. Br. at 26. River Region again ignores that an individual is qualified if she can perform the essential functions of the job with or without reasonable accommodation, and improperly relies on cases where there was no conceivable accommodation that could have allowed the plaintiff to perform the job in question. Compare Def. Br. at 26 (citing Reed v. Petroleum Helicopters, 218 F.3d at 480-81 and Crossley, 569 F. App’x at 196, 197-98, 200, with EEOC Br. at 45-49 (discussing Reed and Crossley).

River Region complains that the Commission’s explanation that Chambers noted on her disability application that her date to return to work was “unknown” because she had no job to return to at the time she filled out the application and because it was uncertain when River Region might provide an accommodation is disingenuous. See Def. Br. at 27. But it is River Region, arguably, that is being disingenuous. River Region has known all along that Chambers requested only a two-week extension of her leave; that she could have returned to work immediately had River Region accommodated her by assigning modified duties for a limited period of time; and that she was healing quickly from routine surgery and expected to make a full and prompt recovery. Furthermore, River Region ignores that this is an appeal from a grant of summary judgment, in which all reasonable inferences must be drawn in favor of the Commission. “By weighing the evidence and reaching factual inferences contrary to [the plaintiff’s] competent evidence, the court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.” Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014). This Court “will not weigh evidence or evaluate the credibility of witnesses.” EEOC v. Chevron Phillips Chem. Co., LLP, 570 F.3d 606, 615 (5th Cir. 2009). Consequently, given the disputed evidence, the district court incorrectly held and River Region incorrectly argued that summary judgment was appropriate.

2. There is sufficient evidence in the record to support a finding that lifting and pushing more than 10 pounds was not an essential function of Chambers’s job in the GI Lab.

The EEOC argued in its opening brief that there was sufficient evidence to support a finding that Chambers could perform the essential functions of her job with either of the two accommodations she pursued, and thus was a qualified individual with a disability under the ADA. See EEOC Br. at 4-6, 9-10, 26-30. River Region counters that Chambers is not qualified because she was released to work on October 13 with a ten-pound lifting and pushing restriction, which would prevent her from lifting up to 50 pounds and pushing up to 300 pounds, which the hospital maintains was an essential function of her job. See Def. Br. at 28-34. River Region argues that this Court should defer to its determination of the essential functions of the job and accept what is listed as essential functions in the written job description. River Region is wrong on the law and the facts.

Essential functions are “fundamental job duties of the employment position the individual holds or desires.” 29 C.F.R. § 1630.2(n)(1). A function is “essential” if it bears “more than a marginal relationship” to the employee’s job. EEOC v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014). A job function may be considered essential because (1) the position exists to perform the function, (2) a limited number of employees are available that can perform it, or (3) it is highly specialized. 29 C.F.R. § 1630.2(n)(1). Whether lifting and pushing objects over ten pounds is an essential function of Chambers’s job is a factual issue and one that is significantly disputed in this record and does not provide an alternate ground for affirming the district court’s grant of summary judgment to the hospital. See Samson v. Fed. Express Corp., 746 F.3d 1196, 1201 (11th Cir. 2014) (“‘Whether a job function is essential is a question of fact that is typically not suitable for resolution on a motion for summary judgment.’”) (quoting Keith v. Cnty. of Oakland, 703 F.3d 918, 926 (6th Cir. 2013)); see also Barber v. Nabors Drilling, 130 F.3d 702, 707 (5th Cir.1997) (evidence of what essential functions are “most often consists of post-hoc descriptions of what the employee was expected to do and what he actually did, which necessarily requires the jury to judge the credibility of the witnesses and the veracity of their testimony”).

The Commission offered substantial evidence that Chambers’s job in the GI Lab was not a typical LPN job, was more accurately thought of as a technician job, involved little patient care, was not physically demanding, and did not require Chambers to lift or push heavy objects. Chambers’s job in the GI Lab did not exist to lift or push heavy objects; it existed to assist with gastroenterological procedures, prepare the procedure room, wash scopes and other equipment, operate ultrasonic washers, stock supplies, and communicate with other staff to coordinate procedures. See EEOC Br. at 4 (citing record). There is no evidence that a limited number of employees were able to lift or push heavier objects, and lifting and pushing are clearly not highly specialized.

As we argued in our opening brief, Agnone testified that an LPN license was not required for Chambers’s GI Lab job and that the hospital used technicians and LPNs interchangeably for that role. See EEOC Br. at 3 (citing ROA.1033-34). The EEOC provided testimony by Chambers and her coworkers describing their job duties, offered evidence that the LPNII/Tech job in the GI lab was not physically demanding because it involved little patient care and patients moved themselves or were assisted by teams of hospital staff and were transported on wheeled beds typically by registered nurses or transporters. Id. at 4-6, 29-30. Coworker Lorraine Wilson testified that the job was not physically demanding and that the job description “greatly overstates the physical demands of the LPN job within the GI lab.” See EEOC Br. at 6 (citing RE-T.10 (ROA.1119)). This evidence, if accepted as true by a jury, would establish that lifting and pushing heavy objects were not essential functions of Chambers’s job.

River Region disregards this evidence and urges this Court instead to defer to its judgment as to which duties are essential functions. Def. Br. at 29-31. While the employer’s judgment on what the essential functions of a job are is “entitled to substantial weight,” “this factor alone is not conclusive. . . . [A] court must conduct a fact-specific inquiry into both the employer’s description of a job and how the job is actually performed in practice.” Samson, 746 F.3d at 1201. Otherwise, “an employer that did not wish to be inconvenienced by making a reasonable accommodation could, simply by asserting that the function is ‘essential,’ avoid the clear congressional mandate that employers make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.” Id. See also Rorrer v. City of Stow, 743 F.3d 1025, 1042 (6th Cir. 2014) (“[F]ederal courts are not ‘required to give deference to [the employer’s] judgment regarding what the essential functions of the position [are]’ when the record suggests that there is a genuine dispute of material fact on the issue.”).

Moreover, “[w]ritten job descriptions are also not dispositive. ‘An employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description.’” Rorrer, 743 F.3d at 1039-40 (quoting Davidson v. Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003)). See also Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988) (reversing lower court’s assumption that the Postal Service’s job description was controlling and noting that the determination of whether physical qualifications are essential functions of a job requires the court to engage in a highly fact-specific inquiry which should be based upon more than statements in a job description and should reflect the actual functioning and circumstances of the particular enterprise involved); Cripe v. City of San Jose, 261 F.3d 877, 888-89 (9th Cir. 2001) (holding that the conflict in evidence regarding the essential functions of a job created a factual dispute that could not be resolved on summary judgment notwithstanding the job descriptions that the employer had prepared).

River Region argues that Chambers’s lifting restriction would have prevented her from moving obese patients to procedure rooms. See Def. Br. at 5, 31-32. The hospital also contends that Chambers admitted that the job required turning sedated patients throughout the day. Id. at 32. However, Chambers did not state that she turned patients by herself (see ROA.718), and Wilson testified that GI Lab patients typically positioned themselves or were moved as a team. See RE-T.10 (ROA.1118 ¶¶ 31-33).

River Region asserts that Chambers’s orthopedic surgeon, Dr. Porter, “recognized that lifting heavier objects was an essential function of Chambers’s job.” Def. Br. at 34. However, River Region cites to the physical therapist’s progress note. See ROA.782. The report does not speak to essential functions, only that at the time of the evaluation, Chambers was unable to tolerate “the forceful push/pull,” which is a “component” of Chambers’s job. Id. There is no evidence in the record indicating that the physical therapist had any knowledge of Chambers’s job duties and which were essential functions versus marginal functions. Dr. Porter’s signature on the progress note does not suggest that he “recognized” pushing heavier objects as an essential function, as the hospital claims. See Def. Br. at 12.

River Region argues that Dr. Porter testified that Chambers could not perform the essential functions of her job without reasonable accommodation. Def. Br. at 13. First, an individual is qualified within the meaning of the ADA if she can perform the essential functions of her job with or without reasonable accommodation, so if Chambers could perform her job with reasonable accommodation, she would still be qualified. Second, on the certificate of health care provider, Dr. Porter checked “no” in response to the question of whether Chambers was “unable to perform any one or more of the essential functions of the employee’s job,” suggesting that she could perform the essential functions of her job. See ROA.1107. River Region argues that Dr. Porter stated Chambers could not perform some of the essential functions of her job on October 13, 2011. See Def. Br. at 35. While it is true that Dr. Porter testified he should have checked yes (but it would have been too “monotonous” to list all the job duties Chambers could do) (ROA.784 (Porter Dep. at 106)), he also testified that Chambers could perform her “same duties, just not picking up anything heavy with that shoulder . . . same job.” EEOC Br. at 13 (quoting RE-T.22 (ROA.1072-73)).

River Region argues that Chambers told the EEOC’s expert, Bruce Brawner, that she frequently had to lift 26-50 pounds and frequently had to push objects between 0-300 pounds, citing Brawner’s handwritten notes of his phone interview with Chambers. See Def. Br. at 33-34 (citing RE-Tab.26 at ROA.1323). However, Brawner testified in his deposition that Chambers reported to him she never had to lift anything heavier than ten pounds. ROA.1184. Brawner was never asked to decipher his notes during his deposition nor questioned about the contradiction between the notes and his testimony that Chambers told him she did not lift more than ten pounds while performing her job. In any case, as discussed infra at 51-59, this Court should disregard Brawner’s notes.[3]

River Region argues that allowing Chambers to return to her job with a lifting and pushing restriction would have presented a safety risk for the hospital. See Def. Br. at 33. However, Chambers, a thirty-five plus year veteran of the hospital, stated in a declaration that “I did not witness any emergency situations that would have required me to push, pull, or lift more than ten pounds.” ROA.1155 ¶ 9. Chambers also stated that emergency situations in the GI Lab were “extremely rare.” Id. ¶ 10. There is no reason based in the record for finding that Chambers’s need to limit the use of her left arm or refrain from lifting heavy objects for a two-week period would have posed any impediment to assisting in the unlikely event of an emergency. For example, Chambers testified that in the one emergency she recalled during her tenure, she assisted by holding an instrument weighing two pounds. Id.¶ 12.

River Region’s stated concern with safety at this point is questionable given that Agnone knew that Chambers required surgery in May of 2011 but would not permit her to take leave to have the procedure until July 21, 2011. EEOC Br. at 7, 30 (citing record).[4] Chambers’s shoulder pain was worse prior to the surgery than after (see EEOC Br. at 8 (citing ROA.1065)), yet there is no evidence that Agnone ever inquired pre-surgery as to whether Chambers was able to perform her job safely with her injury.

Finally, River Region surmises that the only “plausible explanation for Chambers requesting additional leave was she knew she could not perform the essential functions of the her job.” Def. Br. at 34. The more plausible explanation is the one Chambers testified to—that Watson suggested that she apply for an extension of her leave under the hospital’s policy allowing such extensions. See EEOC Br. at 11 (citing RE-T.21, ROA.911, ROA.706). Given the record evidence, a jury could find that lifting and pushing heavy objects was not an essential function of Chambers’s job in the GI Lab. Summary judgment therefore cannot be affirmed on this alternate ground.[5]

3. River Region has not established, as a matter of law, either that it reasonably accommodated Chambers or that it could not do so without incurring undue hardship.

River Region argues that it satisfied any obligation it had under the ADA to provide a reasonable accommodation when it offered Chambers a clerical position that she rejected. Def. Br. at 7-8, 39-40. River Region also argues that the only accommodation Chambers requested—an additional two weeks of leave—would have been unreasonable. See Def. Br. at 41-44. It further argues that even if Chambers had requested that her duties be modified, which she did not, that too would not have been reasonable. Id. at 45-47. River Region again urges affirmance of summary judgment on these grounds. And again, however, River Region misconstrues and disregards record evidence and ignores applicable summary judgment standards.

Agnone testifies that she offered Chambers a clerical position in response to Dr. Porter’s lifting restriction. ROA.744. Anita Oliphant, who was the hospital’s employment manager at the time of Chambers’s termination, states in a 2015 affidavit that Chambers was offered “a secretarial position” after Chambers exhausted her FMLA leave, but Chambers rejected the offer. ROA.727. River Region also offers a 2013 email from Agnone to HR Director Hal Harrington stating that Chambers had been offered a clerical job answering phones “when she was out of FMLA.” ROA.754. The hospital argues it is entitled to summary judgment “on this sole basis.” Def. Br. at 39. River Region relies upon Noll v. IBM Corporation, 787 F.3d 89, 94 (2d Cir. 2015), which states that if the employer’s offered accommodation is plainly reasonable, the court need not look at the accommodations sought by the employee.

The Commission does not dispute that such an accommodation would have been reasonable. However, when the evidence is assessed in the light most favorable to the Commission, a jury could choose not to believe that Agnone ever offered Chambers a clerical position at the time of her termination in October 2011 or that the offer of a clerical position was at all times “outstanding,” as River Region claims. See Def. Br. at 39.

Chambers testified that she was offered a light duty desk job only once, in August of 2011. ROA.704; RE-T-21 (ROA.923, 924). She declined this offer because Dr. Porter advised her that she was not ready to go back to work at that time. ROA.892-93, 917-18. In addition, Watson, who recommended that Chambers request additional leave from Agnone and processed Chambers’s termination, testified that when she informed Agnone that Chambers’s doctor had released her to work on limited duty, Agnone responded that she “needed clarification so that we could make sure that we weren’t violating anything prescribed by the doctor.” EEOC Br. at 13-14 (citing RE-T.24). Watson at no point testified that Chambers was offered and rejected a clerical position prior to her termination.

Agnone testified that she did not recall meeting with HR Vice President Hal Harrington about possible accommodations to Chambers’s restrictions. See EEOC Br. at 14 (citing RE-T.23). Agnone also testified that she spoke to HR and discussed that Chambers’s “FMLA [was] exhausted. We’re in hardship with employees. I need to get the position filled, so we need to do what we have to do.” EEOC Br. at 15 (quoting ROA.739). Agnone again never stated that Chambers turned down an available clerical position. If Agnone truly had offered Chambers a clerical position at the time of her termination, it is odd that neither she nor Watson pointed that out during these lines of questioning.

Harrington’s termination letter dated October 14, 2011, does not mention that Chambers rejected an offer of a clerical position. Harrington states that Chambers’s FMLA leave expired on October 12, 2011, that the hospital was unable to grant her additional leave, and “as a result, your employment with River Region Health System will be terminated effective October 14, 2011.” RE-T.14 (ROA.757). The personnel action form containing the official reason for termination does not indicate that Chambers rejected an offered position. ROA.1150. Agnone’s request to post a new LPNII opening states only that Chambers was unable to return from a leave of absence. ROA.1141-42. Again, if Chambers had actually refused to return to work in an available clerical position, the letter and these records would likely have pointed that out.

Chambers also testified that she was in “a state of shock” and had no response to Watson’s phone call on October 12 informing her that she was going to be terminated and had already been replaced. See EEOC Br. at 14 (citing ROA.921). Had Chambers turned down the clerical job, it would have come as no surprise that she was being terminated. Chambers’s coworker, Patricia DeShazer, was also surprised. She stated in a declaration that she was “aware that Ms. Chambers attempted to return to work in or around October 2011,” and was “surprised that Ms. Chambers was not permitted to return to work and terminated.” ROA.1158.

It would have made sense for Watson to remind Chambers that the clerical job was still open either before suggesting Chambers submit the leave form to Agnone, or when Chambers’s leave request was denied and she submitted the return-to-work certification prescribing modifications to her job. But nothing in the record suggests that Watson mentioned it. And if the clerical job was truly an option, Agnone logically would have reminded Chambers it was available to her when Chambers requested the additional leave of absence.

At bottom, River Region’s proposed scenario is implausible. A jury could find it incredible that Chambers had a standing offer to return to work in a clerical position with no loss of pay or benefits that she knew would be temporary but rejected it knowing the alternative was termination. Consequently, a jury would be permitted to reject River Region’s contention that Agnone offered Chambers a clerical job that she rejected at the time she was fired. See Walker v. NF Chipola, No.14cv375, 2016 U.S. Dist. LEXIS 41172, at *4 (N.D. Fla. March 28, 2016) (jury was not required to accept the employer’s “bald assertion that there were no openings” and the “most reasonable view of the record” was that the employer had openings the plaintiff would have accepted).

River Region’s insistence that Chambers never requested light duty or a modification of duties suggests that the hospital failed to engage in the interactive process, a dereliction that led directly to Chambers’s termination. Chambers’s submission of the return-to-work certification releasing Chambers to work with “limited use of left arm” and a 10-pound lifting and pushing restriction constituted a request for reasonable accommodation. See Chevron, 570 F.3d at 621 (jury could find that a doctor’s return to work release note adequately communicated the nature of employee’s condition where the employer knew she had required medical leave and that the release related to that condition); Molina v. DSI Renal, Inc., 840 F. Supp. 2d 984, 1001-02 (W.D. Tex. 2012) (holding that doctor’s note restricting lifting established that the plaintiff requested accommodation).

Chambers’s submission of the return-to-work certification triggered River Region’s obligation to explore potential accommodations and participate in the interactive process to determine one that would work for both Chambers and the hospital. See Chevron, 570 F.3d at 622; Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996). Hence, even if, as River Region claims, Chambers did not specifically request a light duty accommodation, River Region was obliged to explore this as a possible accommodation. See Cutrera v. Bd. of Supervisors of La. St. Univ., 429 F.3d 108, 112-13 (5th Cir. 2005) (finding that the plaintiff, who began suffering from a form of macular degeneration, and who informed her supervisors that she was having trouble reading, was meeting with a vocational rehabilitation counselor, and intended to return to work but did not identify a workable accommodation when she first discussed the issue, triggered the employer’s obligation to participate in an interactive process with the plaintiff to attempt to identify a reasonable accommodation for her disability; the Court held that summary judgment for the employer based on the argument that the plaintiff failed to request an accommodation would be inappropriate).

Allowing Chambers to return to her job on October 13 with limited use of her left arm and the ten-pound lifting and pushing restriction would have been a reasonable accommodation because she could do many, if not all, of her job duties. See EEOC Br. at 13 (citing Dr. Porter’s testimony). “Shifting marginal duties to other employees who can easily perform them is a reasonable accommodation.” Rorrer, 743 F.3d at 1044. Chambers had in fact performed her job competently with a compromised shoulder in the months prior to her surgery. See EEOC Br. at 30.

River Region argues that, to the extent Chambers was asking for her job to be restructured to exclude lifting and pushing of heavier objects, such an accommodation would be unreasonable because it would have “amounted to a request that Chambers’s essential job duties be reassigned to another employee.” Def. Br. at 46. Once again, River Region mischaracterizes the Commission’s argument and ignores important record evidence and basic summary judgment standards. As argued in the opening brief and above, lifting and pushing heavy objects was not an essential function of Chambers’s job. If Chambers’s shoulder prevented her from performing a task while she was limiting the use of her left arm and unable to lift or push over ten pounds, coworkers could assist her. According to Wilson, the three LPNs in the GI Lab “shared the daily workload” and “it was our normal practice to do things as a team.” EEOC Br. at 4 (quoting Wilson’s declaration). See Rorrer, 743 F.3d at 1044. (“Drawing all reasonable inferences in favor of Rorrer, the suggested accommodation that he not drive an apparatus during an emergency was reasonable because it would have excused him from performing a marginal function that could have ‘easily’ been performed by his colleagues.”).

Furthermore, the restrictions imposed by Dr. Porter were by their nature short-term; Chambers did not need, and never asked for, a permanent restructuring of her job. Chambers was recovering well from surgery, was on track to make a full recovery, and was hoping to be released to work without restriction on October 28, 2011, only two weeks after she was fired.

The Commission also argued in its opening brief that an additional two weeks of leave was a reasonable accommodation. See EEOC Br. at 27-28. “[A] reasonable accommodation is a method of accommodation that is reasonable in the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiff’s preferred accommodation in the context of the particular [employer’s] operations.” Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1999) (internal citation omitted); see also U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002) (lower courts have reconciled “reasonable accommodation” and “undue hardship” in a practical way by holding that to defeat summary judgment, a plaintiff need only show that an accommodation “seems reasonable on its face, i.e., ordinarily or in the run of cases,” and once the plaintiff makes this showing, the employer has the burden to show undue hardship focusing on the hardships imposed in the employer’s operations). A jury could find that a two-week leave of absence was a reasonable accommodation “in the run of cases.” See EEOC Br. at 27 (citing Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir. 1998); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000)); see also Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1135-36 (9th Cir. 2001) (“We have held that where a leave of absence would reasonably accommodate an employee’s disability and permit him, upon his return, to perform the essential functions of the job, that employee is otherwise qualified under the ADA.”); Reed v. Jefferson Par. Sch. Bd., No. 12-2758, 2014 WL 1978990, at *3 (E.D. La. Apr. 24, 2014) (court found that the plaintiff’s request for additional two weeks of leave was not improper, or that it fell beyond the bounds of the general rule that a reasonable accommodation may include “providing additional unpaid leave for necessary treatment”); Aspen v. Wilhelmsen Ships Serv., No. 13-6057, 2015 WL 1020660, at *6 (E.D. Pa. Mar. 9, 2015) (holding that a finite eight-week extension of medical leave would have been a reasonable accommodation where the employer had reason to believe the plaintiff might be cleared to work within a matter of weeks); Cross v. Golden Living Ctr.-Silver Spring, No. 14-1563, 2015 WL 3887161, at *2 (E.D. Wis. June 24, 2015) (court denied employer’s motion for judgment on the pleadings because the record did not preclude employee from attempting to prove that she could have returned to work after an additional month’s leave; the court assumed without deciding that an additional month’s leave would have been a reasonable accommodation).

Chambers’s coworkers testified that they had covered for her while she was on leave without difficulty and could do so for an additional two weeks. EEOC Br. at 10 (citing Wilson’s and DeShazer’s affidavits). Because it took the hospital over a year to hire another GI Lab tech, the remaining staff shared the responsibilities they had been sharing while she was out on FMLA leave. See EEOC Br. at 17 (citing ROA.1121). Both of these facts cast doubt on the hospital’s repeated assertion that approving additional leave would have burdened the other GI Lab staff. See EEOC Br. at 14-16, 33 (discussing Watson’s, Harrington’s, and Agnone’s justification for terminating Chambers).

River Region characterizes Chambers’s request for two weeks of additional leave as unreasonable because in its view, Chambers “did not (and could not) provide any certainty as to when she would be able to return to work without restriction.” See Def. Br. at 41. According to River Region, Chambers’s post-termination notation on her short-term disability application that the date of her return to work was “unknown,” and Dr. Porter’s listing as “unknown” the end point of her period of temporary total disability, rendered her actual request for two weeks of leave a request for indefinite leave. See Def. Br. at 42-43.

River Region again mischaracterizes the evidence. As the EEOC argued in its opening brief, Chambers requested two weeks of additional leave, not indefinite leave. EEOC Br. at 27-28. It was likely that Chambers would have been able to return to her job by the end of October without restriction given the success of the routine surgery she had, a finite recovery time with which Agnone (a trained nurse) testified she was familiar, the steady progress Chambers was making in physical therapy, the lack of setbacks, and Dr. Porter’s testimony that her prognosis was good and he expected her to make a full recovery. Id. at 28 (citing record).

Chambers testified that she requested two weeks of additional leave because her date of return would post-date her scheduled appointment with Dr. Porter. ROA.913. That she told Agnone she was “hoping” he would release her without any restrictions (ROA.1071) does not transform the two weeks into a request for indefinite leave or make the requested accommodation unreasonable. In Graves v. Finch Pruyn & Co., 457 F.3d 181, 185-86 (2d Cir. 2006), the court of appeals held that the plaintiff’s testimony that he needed “maybe a couple weeks” to see a doctor could not be characterized as a request for indefinite leave. The court stated that testimony that the plaintiff asked for “more time”–namely “a couple of weeks”—to get a doctor’s appointment, and that he asked for a finite amount of time did not require the employer to hold open his position indefinitely. Id. at 186. The court ruled that the district court erred in rejecting the plaintiff’s claim on the basis that the requested leave was “indefinite” and reversed the grant of summary judgment. Similarly, this Court should reject River Region’s obvious attempt to recast Chambers’s leave request in order to render it unreasonable. Id.

The cases cited by River Region (Def. Br. at 42 n.14) do not undermine the Commission’s arguments. Rather, these cases simply explain the uncontested point that leave may be a reasonable accommodation if the employee provides, as Chambers did here, an expected duration of the time needed before returning to performing the essential functions of the job. Chambers requested two weeks of additional leave, the expected and actual duration of leave she needed to fully recover and return to her duties. Chambers’s short-term disability benefits were discontinued on October 28, 2011, because she was released without restriction on that date. See EEOC Br. at 18-19 (citing RE-T.7).[6]

The record indicates that that River Region failed to consider its responsibility to provide leave or any other accommodation under the ADA. See EEOC Br. at 14 (citing to record evidence that no one from River Region contacted Dr. Porter to find out what Chambers could do and that Agnone never discussed possible accommodation with Harrington or asked Harrington or Watson when Chambers could return without restriction). “From this evidence a jury reasonably could find that [River Region] did not attempt to entertain the requested accommodation.” Chevron, 570 F.3d at 622.

Indeed, it appears from the record that River Region is of the view that once it permitted Chambers to take leave under the FMLA, it had no further obligation under the ADA to accommodate her. As the court in Walker recently held, this is an incorrect view of the law. In that case, the court stated, “The defendant employer apparently believed, in effect, that for an employee needing medical leave based on a disability, the FMLA displaced the ADA, so that granting 12 weeks of FMLA leave ended any need for a further accommodation—for extended leave—under the ADA. That is not the law.” Walker, 2016 U.S. Dist. LEXIS 41172, at *1. “[N]othing in the ADA suggests that the requirement to provide a reasonable accommodation is somehow preempted by the FMLA. Instead, the statutes impose separate requirements, and an employer must comply with both.” Id. at *5.

Similarly, River Region was required to provide Chambers with a reasonable accommodation once she had exhausted the FMLA leave to which she was entitled. Because the Commission identified “accommodations reasonable in the run of cases,” this Court should reject River Region’s contention that both accommodations were unreasonable as an alternate ground for affirmance.[7] See Riel, 99 F.3d at 684 (“As we conclude that a trier of fact could conclude that neither [of the two accommodations sought] is unreasonable ‘in the run of cases,’ we must find [the plaintiff] has met his burden at this stage.”).

Because a reasonable jury could find that both accommodations requested were reasonable “ordinarily or in the run of cases,” Barnett, 535 U.S. at 401, River Region was required to provide either of the accommodations Chambers sought absent undue hardship. See 42 U.S.C. § 12112(b)(5)(a); Chevron, 570 F.3d at 613-14. River Region maintains that “its arguments regarding the request for additional leave are not related to undue burden, but rather the unreasonableness of the requested accommodation.” Def. Br. at 44. The hospital makes no attempt to argue it could establish that accommodating Chambers would constitute an undue burden. See Def. Br. at 44-45. River Region would not be entitled to summary judgment absent this showing. As this Court held:

[River Region] may not place the burden of proof of undue hardship on [the Commission] merely by refusing to plead the affirmative defense and then attacking [its] proposed accommodations as unreasonable in [Chambers’s] specific circumstance; Congress’ intent was to place that burden on the employer. Rather, if [River Region] wishes to refute [the Commission’s] proposed accommodations as unreasonable in [her] specific circumstance, it must plead the defense and offer evidence to support it.

Riel, 99 F.3d at 684 (remanding case to the district court for further proceedings because the employer did not raise the issue at the summary judgment stage).

Lastly, River Region argues that it did not fire Chambers because of her disability but because she could not perform the essential functions of her job, and that the Commission offered only Chambers’s subjective belief that she was terminated because of her disability. See Def. Br. at 47. As the Commission argued in its opening brief, Watson recorded on the official personnel action form that Chambers was fired for “personal illness/disability” and “Employee exhausted FMLA effective 10-12-2011; unable to grant additional leave.” EEOC Br. at 14 (citing ROA.1150; ROA.1163). Agnone’s request to post a new position replacing Chambers stated she “was unable to return from leave of absence.” Id. at 16 (citing ROA.1141-42). And River Region reported to its employee benefits manager that Chambers had been terminated because of “disability.” Id. (citing RE-T-.20 (ROA.1022)). River Region points to no evidence in the record referencing any performance deficiencies as the reason for Chambers’s termination. Indeed, River Region’s own documents refer to “illness” and “disability” as the reasons for her discharge. A reasonable jury certainly could find on this record that Chambers’s termination was because of her disability. This case should be remanded for trial.

BRIEF AS CROSS-APPELLEE

ISSUE PRESENTED FOR REVIEW

Whether the district court acted within its discretion in granting the Commission’s motion to strike EEOC expert Bruce Brawner’s phone interview notes with Chambers where the notes were never deciphered or explained during Brawner’s deposition, and where River Region introduced them for the first time in its reply brief, which deprived the Commission of an opportunity to respond adequately.

STATEMENT OF THE CASE

A. Nature of the Case & Course of Proceedings

In response to the Commission’s opposition to summary judgment filed June 15, 2015, River Region argued for the first time in its June 22, 2015, reply brief that Chambers admitted that lifting and pushing objects weighing more than ten pounds were essential functions of her job and introduced EEOC expert Bruce Brawner’s handwritten notes in support of its argument. The notes were created during a vocational rehabilitation phone interview with Chambers conducted on January 19, 2015. See ROA.1273. River Region argued that these notes constituted admissions by Chambers that she occasionally or frequently lifted objects weighing ten to fifty pounds, and that these supposed admissions were inconsistent with Chambers’s testimony during her deposition.

The Commission filed a motion to strike the exhibit containing Brawner’s notes. ROA.RE-T.26. The EEOC argued that the actual significance of these notes is unclear, given that they do not reveal the specifics of any questions posed by Brawner or any responses from Chambers. The Commission argued that, to the extent the notes cast doubt on the reliability of Chambers’s testimony about her job duties, they are new evidence and would prejudice the Commission if relied upon by the district court. The Commission emphasized that River Region had ample opportunity to offer this evidence and make this argument in its initial motion for summary judgment but failed to do so. See ROA.1355-57.

B. District Court Decision

The district court stated that new evidence introduced for the first time in a reply brief may be admitted, at the district court’s discretion, only after providing the nonmoving party “an adequate opportunity to respond prior to ruling.” RE-T.4 (ROA.1383-84) (citing Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004)). The court granted the Commission’s motion to strike “[b]ecause neither Brawner’s notes nor [River Region’s] argument for limited inquiry are used [by the court] to reach its ultimate decision on [River Region’s] Motion for Summary Judgment.” RE-T.4 (ROA.1384). The court declined “to exercise its discretion to consider these portions of [River Region’s] reply.” Id. The district court did not reach the issue or issue a ruling on what the essential functions of Chambers’s job were because the court granted summary judgment to River Region based on its determination that assertions Chambers made on her short-term disability application precluded the Commission from arguing Chambers was qualified. RE-T.4 (ROA.1389).

STANDARD OF REVIEW

This Court reviews a motion to strike evidence for abuse of discretion. Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 178 (5th Cir. 2007). Because of “the expansive discretion afforded the district court in evidentiary matters,”“[r]arely will a district court’s decision [on a motion to strike] constitute reversible error.” Bryan v. Chertoff, 217 F. App’x 289, 291 (5th Cir. 2007).[8]

SUMMARY OF ARGUMENT

The district court did not abuse its discretion in granting the Commission’s motion to strike Brawner’s interview notes and refusing to consider them. River Region argued in its reply brief that Chambers’s testimony that she did not have to lift more than ten pounds as part of her job was contradicted by Brawner’s interview notes suggesting that she had admitted she had to lift more than ten pounds. Although whether Chambers’s job required heavy lifting and the accuracy of the job description was an issue in this case from the beginning, and River Region could have cited to the notes in its initial brief in support of summary judgment, the hospital omitted any reference to Brawner’s notes until its reply brief. A district court properly declines to consider arguments or evidence raised for the first time in a reply brief. Given this rule, the district court had two choices—to exclude the evidence in reaching its decision on summary judgment, or give the Commission an opportunity to respond in a sur-reply brief.

The court was well within its discretion in choosing not to rely on the new evidence and granting the Commission’s motion to strike. By waiting to offer this evidence until its reply brief, River Region deprived the Commission of the opportunity to respond sufficiently, and the belated introduction of this evidence into the record would have prejudiced the Commission. Brawner testified in his deposition that Chambers told him she did not have to lift anything heavier than ten pounds in her job in the GI Lab. Brawner was never questioned on what his interview notes meant or why they appear to contradict his deposition testimony. The district court properly granted the Commission’s motion to strike. And even if it could possibly be deemed error, it was harmless.

ARGUMENT

The district court did not abuse its discretion in granting the Commission’s motion to strike new evidence raised by River Region for the first time in its reply brief.

The district court’s ruling that Brawner’s notes should be stricken from the record was well within the court’s discretion. “A district court may rely on arguments and evidence presented for the first time in a reply brief as long as the court gives the nonmovant an adequate opportunity to respond.” Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004). Because the court did not rely on this new argument or evidence to reach its decision, there was no need to allow additional briefing to give the Commission an opportunity to respond. This was consistent with “the practice of this court and the district courts to refuse to consider arguments raised for the first time in reply briefs.” Gillaspy v. Dallas Indep. Sch. Dist., 278 F. App'x 307, 315 (5th Cir. 2008).

River Region asserts that it introduced Brawner’s notes in its rebuttal brief in response to the Commission’s argument in its opposition to summary judgment that Brawner had evaluated the incorrect job position. See Def. Br. at 51. But River Region cited Brawner’s notes in support of its argument that Chambers’s testimony regarding the physical requirements of her job duties was unreliable. See ROA.1273-74 (Def. Reply 21-22). The issue of whether lifting and pushing objects over ten pounds was an essential function of Chambers’s job and the accuracy of the job description have been central issues in this case from its inception. River Region argued at length that the essential functions of Chambers’s job included lifting and pushing objects over ten pounds in its summary judgment brief. ROA.810-816. River Region specifically addressed Chambers’s deposition testimony about her job duties in its opening brief, yet did not cite to Brawner’s notes. ROA.812-13.

Because River Region was aware that the Commission disputed the accuracy of the job description and that Chambers had testified at length that it did not describe the actual physical demands of her job in the GI Lab, and because River Region could have addressed the issue fully in its opening brief in support of summary judgment, the district court properly granted the Commission’s motion to strike. See Elwakin v. Target Media Partners Operating Co. LLC, 901 F. Supp. 2d 730, 746 (E.D. La. 2012) (rejecting the defendant’s argument that new evidence responded to arguments raised for the first time in the opposition brief because both the plaintiff’s petition and the defendant’s own motion for summary judgment explicitly referenced the issue). Although River Region responded in its reply brief to the Commission’s argument that Brawner evaluated the wrong position (offering evidence that Chambers’s position was not a typical LPN job and involved more the duties of a technician), the hospital cited to Brawner’s deposition, not to his interview notes. ROA.1275-76. Thus River Region’s characterization of its introduction of Brawner’s notes as a response to that argument made by the Commission is inaccurate and misleading.

Faced with new evidence and argument in River Region’s reply, the district court could have allowed the Commission to file a sur-reply, or it court have exercised its discretion—as it did—rule on the summary judgment briefing without considering the new evidence and argument. Because of “the expansive discretion afforded the district court in evidentiary matters” (Bryan, 217 F. App’x at 291), the district court properly discounted this evidence and there is no reversible error. “[T]he rule that the nonmovant should be given a fair opportunity to respond to a motion . . . informs the court’s practice of declining to consider arguments raised for the first time in a reply brief.” Springs Indus., Inc. v. Am. Motorists Ins. Co., 137 F.R.D. 238, 239 (N.D. Tex. 1991) (citing Senior Unsecured Creditors' Comm. of First Republic Bank Corp. v. FDIC, 749 F. Supp. 758, 772 (N.D. Tex. 1990) (motion to dismiss)).

River Region’s argument that Brawner was the Commission’s expert and the Commission was aware of the contents of Brawner’s notes misses the point and should be rejected. See Def. Br. at 53. Although the Commission was aware that these notes existed, their introduction late in the summary judgment briefing would have denied the Commission the opportunity to object on admissibility grounds, to substantively respond to the exhibit, or to acquire and submit additional evidence from Brawner clarifying the contents of his notes. If the Commission had had the opportunity, it would have argued in its opposition to summary judgment that Brawner testified that Chambers told him she never had to lift more than ten pounds. The Commission also would have stressed that Brawner was never asked to interpret his notes or explain the seeming contradiction between his notes and his deposition testimony. The Commission would have submitted an affidavit from Brawner clarifying whether his notes reflect what Chambers told him and explaining why his deposition testimony says otherwise.

River Region’s contention that the Commission had an opportunity to respond to the exhibit in the briefs in support of its motion to strike is also misplaced. The Commission’s motion to strike briefing properly focused on the legal standard for admitting new evidence in a reply brief, not the substance of River Region’s argument and suggestion that Chambers is unreliable because she changed her testimony about what the essential functions of the job were. Because the district court exercised its discretion to grant the motion to strike rather than order additional briefing, there was no damage done to the Commission’s case. The court properly considered the motion to strike briefing an inadequate response to River Region’s late introduction of new evidence.

In contrast, in Vais Arms, cited by the district court and River Region, this Court found that the nonmoving party had an adequate opportunity to respond to new evidence because it filed a supplemental reply memorandum, along with additional evidence, that directly addressed the new argument. See 383 F.3d at 292. This Court expressly distinguished that situation from those where the nonmoving party was only permitted to file a motion to strike, which was determined to be an inadequate opportunity to respond. Id. at 292 n.11 (distinguishing Aviles v. Cornell Forge Co., 183 F.3d 598, 605 (7th Cir. 1999)); see also Corinth Inv’rs Holdings, LLC v. Evanston Ins. Co., No. 4:13-CV-682, 2014 WL 4222168, at *5 (E.D. Tex. Aug. 25, 2014) (finding that the nonmoving party did not have an adequate opportunity to respond to new evidence, despite the opportunity to file a sur-reply, because it did not have ample time to conduct discovery regarding the new issue).

Because the Commission’s motion to strike briefing, like that in Aviles, urged the court to strike evidence from River Region’s reply brief rather than substantively responding to the merits of its claim, it did not constitute the Commission’s comprehensive argument on the claim. See Aviles, 183 F.3d at 605. Hence, in the absence of a strike order, River Region’s belated introduction of the exhibit in its reply brief would have prejudiced the Commission by denying it an adequate opportunity to respond.

Furthermore, any error that could conceivably be attributed to the district court on this ruling is harmless. Should this Court reverse the district court’s ruling on summary judgment and remand the case for further proceedings, the parties can sort out the admissibility of Brawner’s notes before trial. See, e.g., Waterman v. McKinney Indep. Sch. Dist., No. 15-40458, 2016 WL 1127429, at *3 (5th Cir. Mar. 22, 2016) (“Even if the district court’s evidentiary ruling is an abuse of discretion, it is subject to harmless error analysis and does not justify reversal unless it affected substantial rights of the complaining party.”) (citation and internal quotation marks omitted). The district court’s ruling should therefore be affirmed.

CONCLUSION

For the foregoing reasons and the reasons stated in the Commission’s opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings. The district court’s ruling on the Commission’s motion to strike should be affirmed.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 11,254 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

Dated: April 20, 2016

[1] Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 273 (3d Cir. 2012), also cited by River Region, involved a short-term disability application but did not apply Cleveland to an ADA claim and is not analogous to Chambers’s situation. The court of appeals applied general estoppel principles articulated in Cleveland to the plaintiff’s claim that his employer’s refusal to allow him to return to work following a stroke and six months of leave violated the Family and Medical Leave Act. The court held that the plaintiff’s continuing monthly representations to his short-term disability benefits provider that he was unable to perform the material duties of his job and unable to return to work in any capacity was at odds with his assertion in his FMLA interference claim that he could perform his job without accommodation. The court stated that the plaintiff’s two claims “crash face first against” one another, and the first estops the second. Id. at 273-74.

[2] River Region again distorts the Commission’s argument when it asserts that “the EEOC acknowledges it is required to make such a particularized showing here.” See Def. Br. at 25 (citing EEOC Br. at 42-43). The Commission’s brief states that “[e]ven if Chambers’s and Dr. Porter’s representations on her short-term disability application ‘appear to negate’ the Commission’s claim that Chambers was a qualified individual with a disability under the ADA, the Commission made ‘a particularized showing that reasonable accommodations were possible.’” EEOC Br. at 42-43.

[3] River Region argues that in opposing summary judgment in the district court, the Commission “illogically” argued that Brawner’s opinions should be disregarded because he should have evaluated the job position of technician rather than LPN. See Def. Br. at 35 (citing ROA.1237). The Commission offered evidence, including testimony from Agnone, Wilson, and Chambers, that Chambers’s job was not a typical LPN job and instead was more comparable to a technician. See EEOC Br. at 3-4. An LPN license was not required for the GI Lab job and River Region used their LPNs in a tech role. See RE-T.23 (ROA.1033).

[4] River Region claims that there is no way Agnone could have refused to allow Chambers to obtain the surgery when she first asked because Watson handled FMLA leave. Def. Br. at 5 n.2. Chambers asked for leave to obtain surgery, not for FMLA leave. ROA.900-01. Department managers had the power to approve or disapprove leave requests. See ROA.1127.

[5] Even if lifting and pushing more than ten pounds were essential functions, summary judgment on this ground would still be inappropriate because a jury could find that a two-week leave of absence was a reasonable accommodation that would have allowed Chambers to perform these functions. See infra at 37-44.

[6] River Region cites to a release note from Dr. Porter dated December 5, 2011, and suggests that Chambers was not released to work without restrictions until that time. Def. Br. at 43 (citing ROA.1182). The note states, “She is fit to return to work. She was released from care on October 28, 2011.” ROA.1182. Porter testified that he assumed Chambers would be on light duty until he saw her on October 28, 2011. RE-T.22 (ROA.1072). Chambers’s short-term disability benefits were discontinued as of October 28, 2011, the date Dr. Porter released her to work. ROA.794. There is no evidence she was under any restrictions after that date.

[7] River Region argues that the Commission’s claim that the hospital violated the ADA by failing to accommodate Chambers “must fail” because the EEOC “produced no evidence, whatsoever, that River Region terminated Chambers in order to avoid accommodating her at work.” See Def. Br. at 49 (citing Burch v. Coca-Cola Co., 119 F.3d 305, 314 (5th Cir. 1997)). The Commission alleged both that River Region failed to accommodate Chambers and that it wrongfully terminated her because of her disability in violation of the ADA. See ROA.20-24 (Complaint at 3-7).

[8] In its brief as cross-appellant, River Region cites Trafigura Beheer B.V. v. M/T PROBO ELK, 266 F. App’x 309, 312 (5th Cir. 2007), for the proposition that this Court reviews “a district court’s interpretation of the federal rules of civil procedure de novo.” Def. Br. at 15. But the Commission’s motion to strike did not rely on Fed. R. Civ. P. 56(c), as River Region suggests, but instead on this Court’s precedent holding that a movant may not introduce new arguments for the first time in its reply brief. See ROA.1356-58 (EEOC Motion to Strike Br. at 2-4).