Petition for Writ of Certiorari — Parts Galore L.L.C., et al., Petitioners v. Jacqueline Harrison

Supreme Court briefMar 12, 2021

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No. _________

In The

Supreme Court of the United States

PARTS GALORE L.L.C. and

SOAVE ENTERPRISES L.L.C.,

Petitioners,

v.

JACQUELINE HARRISON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_____________________

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

_____________________

Michael F. Smith*

Counsel of Record

THE SMITH APPELLATE LAW FIRM

1717 Pennsylvania Avenue N.W.

Suite 1025

Washington, D.C. 20006

(202) 454-2860

smith@smithpllc.com

John J. O’Shea

LAW OFFICE OF JOHN J. O’SHEA P.L.C.

18000 Mack Avenue

Grosse Pointe, MI 48230

(313) 884-2000

oshealaw@att.net

Counsel for Petitioners

TABLE OF CONTENTS

Appendix

APPENDIX A

Page:

Opinion

U.S. Court of Appeals for the Sixth Circuit

No. 19-1176, Harrison v. Soave Enterprises L.L.C. and Parts Galore L.L.C.

entered September 10, 2020 ............................................................................. 1a

APPENDIX B

Opinion and Order

U.S. District Court for the Eastern District of Michigan, Southern Division

No. 16-14084, Harrison v. Soave Enterprises L.L.C. and Parts Galore L.L.C.

entered January 23, 2019 ............................................................................... 17a

APPENDIX C

Dismissal and Notice of Rights

U.S. Equal Employment Opportunity Commission

dated August 17, 2016 .................................................................................... 29a

APPENDIX D

Order Denying Petition for En Banc Rehearing

U.S. Court of Appeals for the Sixth Circuit

No. 19-1176, Harrison v. Soave Enterprises L.L.C. and Parts Galore LLC

entered October 13, 2020 ................................................................................ 31a

APPENDIX E

Americans with Disabilities Act of 1990, as Amended (excerpt)

Title 42 U.S.C. §§ 12101-12117 ................................................................................. 32a

APPENDIX F

Amicus Curiae Brief of U.S. Equal Employment Opportunity Commission

In Support of Plaintiff-Appellant

No. 19-1176, Harrison v. Soave Enterprises L.L.C. and Parts Galore L.L.C.

filed April 24, 2019 .......................................................................................... 53a

APPENDIX G

U.S. Equal Employment Opportunity Commission

29 CFR Part 1630; Regulations to Implement the

Equal Employment Provisions of the Americans With Disabilities Act,

as Amended; Final Rule

dated March 25, 2011.................................................................................... 115a

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NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0526n.06

No. 19-1176

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JACQUELINE HARRISON,

Plaintiff-Appellant

v.

SOAVE ENTERPRISES

GALORE L.L.C.

L.L.C.

Defendants-Appellees

and

)

)

)

)

)

)

PARTS

)

)

)

FILED

Sep 10, 2020

DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

Before: GUY, BUSH, and MURPHY, Circuit Judges.

JOHN K. BUSH, Circuit Judge. The Americans with Disabilities Act (ADA), 42 U.S.C.

§§ 12101 et seq., celebrating its thirtieth anniversary this year, embodies our national commitment

to equality of opportunity in the workplace for the disabled. This appeal concerns the definition

of a qualifying “disability” in light of the 2008 amendments that broadened coverage under the

Act.

Jacqueline Harrison appeals the district court’s grant of summary judgment to Soave

Enterprises and Parts Galore (collectively, Defendants) on her ADA claim. The district court held

that Defendants might be “employers” subject to the requirements of the Act but granted them

summary judgment on the ground that Harrison failed to introduce direct evidence that she was

either “actually” disabled or “regarded as” disabled by those entities. We conclude that a dispute

of fact exists over whether Soave and Parts Galore can be liable to Harrison under the ADA, and

we disagree with the district court’s conclusion that Harrison failed to adduce sufficient evidence

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of an “actual” or “regarded-as” disability under the 2008 amendments to the ADA, known as the

ADA Amendments Act of 2008 (ADAAA). We thus REVERSE the district court’s grant of

summary judgment and REMAND for the district court’s assessment of the remaining elements

of Harrison’s ADA claim.

I.

In December 2005, Harrison became a manager of Parts Galore, a self-service used auto

parts salvage yard. In 2007, she moved to a second location, “Parts Galore II,” where she also

served as a manager. At these facilities customers can pay a two-dollar entrance fee, which allows

them to harvest and purchase parts from scrap cars and trucks located throughout many acres.

Harrison inspected the yard two to three times a day in a John Deere “Gator” vehicle. As part of

those inspections, she checked for improperly placed cars, monitored employees, and assessed

holes in the fence to help prevent theft.

In 2014, Parts Galore hired Stephan A. “Tony” Murell as Regional Manager. He prepared

a preliminary report that documented problems at Parts Galore II. The underperformance at the

facility included holes along the fence (linked to possible incidents of theft), poorly inspected

vehicles (with dangerous parts (i.e., jacks) not having been removed), slacking employees, and a

deficient video feed monitor.

Following the report, Murell mandated changes at Parts Galore II. Among other things, he

required Harrison to randomly spot-check five cars each day prior to their placement in the yard.

This was to ensure that all dangerous car parts had been properly removed. To conduct the spot

checks, Harrison had to look under each car’s hood and ensure that all of the engine fluids had

been drained, and then inspect beneath the vehicles to confirm the removal of the catalytic

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converters. The latter duty required Harrison to physically kneel down and view the underbelly of

the car.

The new inspection procedure posed difficulties for Harrison, for in 2010 or 2011, Harrison

had suffered a torn ACL injury after falling in the shower. Knee surgery repaired her torn

meniscus, but she elected not to have her ACL repaired, as it would have required her to stop

taking medication that she needed and her doctor informed her that she could function without the

additional repair. Following her surgery Harrison continued to experience pain, which she

managed by taking medication as needed. However, she was no longer able to kneel to look

beneath the cars to perform the daily spot-check inspections.

To address Harrison’s inability to kneel, Parts Galore supplied her with a mirror on an

extension arm, which she used to view the undercarriage of cars and confirm that the catalytic

converter had been removed. The mirror allowed Harrison to perform all of her work-related

duties without any limitation. Harrison also testified that she could perform many personal

activities around her home and neighborhood. These included window washing, floor scrubbing,

cleaning toilets, picking up parts, picking up batteries, participating in the community, cleaning up

neighborhoods, and delivering turkey. Harrison never requested any other accommodation to

perform her duties at Part Galore. In fact, she declared in her deposition that “[t]here was no part

of my job that I could not do.” She also testified that at the time of her termination of employment

(August 26, 2015), she was neither being treated for her ACL injury by a medical professional,

nor had any doctor-imposed medical or physical restrictions on her activities.

A.

Harrison’s Termination

On her last day at Parts Galore, Murell indicated to Harrison that she was being “terminated

because [she] can no longer do [her] duties because [of] a torn ACL.” Murell offered no other

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reason for the termination. In his deposition Murell admitted that he had told Harrison that her

ACL injury was the reason for her termination, but claimed that the actual reasons her employment

ended, which he did not tell her, were because of a “multitude of [her prior] offenses and incidents

of behavior.”

B.

Procedural History

1. Harrison’s EEOC Complaint

Following her termination, Harrison filed a charge with the Equal Employment

Opportunity Commission (EEOC) against Ferrous Processing and Trading Company, the party

responsible for her hiring at Parts Galore. She alleged that she was fired because of her race, sex,

and/or disability. Neither Soave nor Parts Galore was named on this complaint. The EEOC issued

Harrison a right-to-sue letter.

2. District Court Proceedings

Harrison then filed a two-count complaint in the Eastern District of Michigan against Soave

and Parts Galore. In Count I, Harrison alleged that her termination violated the ADA, classifying

her torn ACL and “medical obesity” as qualifying disabilities. In Count II, Harrison alleged that

Soave had violated the Elliott-Larsen Civil Rights Act (ELCRA), based on its alleged weight

discrimination against her. Central to Harrison’s claims was the statement Murell had made that

she “[could] no longer perform [her] managerial duties because [of a] torn ACL.”

Upon completion of discovery, Defendants moved for summary judgment on both counts.

They argued that (1) Harrison was directly employed by neither Soave nor Parts Galore; (2) she

was not a qualified person with a disability under the ADA; (3) she had not required, nor had she

requested, a reasonable accommodation for her alleged disability, which rendered her ADA claim

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moot; and (4) her deposition admissions (relating to the fact she was never diagnosed as medically

obese) rendered her ELCRA claim moot.

The district court granted summary judgment for Defendants. The court concluded that

Ferrous, Parts Galore, and Soave were “so intertwined that they constitute[d] a single employer”

under the ADA and thus Parts Galore and Soave were capable of being named in the complaint.

Harrison v. Soave Enters., No. 16-14084, 2019 WL 296699, at *2 (E.D. Mich. Jan. 23, 2019)

(citing Swallows v. Barnes & Noble Book Stores, 128 F.3d 990, 993 (6th Cir. 1997)). Nonetheless,

the court granted summary judgment for several reasons. First, the court held that Harrison had

failed to present medical evidence of her knee condition as to create a genuine issue for trial that

she was either “actually disabled” or “regarded as” disabled under the ADA. Id. at *3. Second,

the court held that, even if Harrison had alleged a sufficient disability, she “extinguish[ed] any

potential claim of [her employer’s] refusal to accommodate,” given that she advanced “[no]

evidence that Defendants refused [her] requested accommodation.” Id. Third, although the court

concluded that Harrison had evidence for a prima facie case of weight discrimination under the

ELCRA, the court held that she failed to offer any proof that Murell’s legitimate rationale for her

firing—Harrison’s inconsistency in performing car spot checks—was pretextual. Id. at *4.

Harrison now appeals only her ADA claim. She argues that, in concluding that she was

not disabled under the ADA, the district court incorrectly applied an analysis from Black v.

Roadway Express, Inc., 297 F.3d 445, 450 (6th Cir. 2002), which has been superseded by the 2008

amendments to the ADA. Harrison further contends that the district court erred in its determination

that she failed to prove that Defendants “regarded” her as disabled and terminated her because of

that perception. Alternatively, Harrison argues that even if her claim based on direct evidence of

discrimination fails, the district court failed to conduct burden-shifting analysis based on indirect

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evidence. See Ferrari v. Ford Motor Co., 826 F.3d 885, 891–92 (6th Cir. 2016), abrogated on

other grounds by Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 319 (6th Cir. 2019)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

II.

We review de novo a district court’s grant of summary judgment under Rule 56 of the

Federal Rules of Civil Procedure. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Under this standard, the moving party “bears the initial burden of establishing an absence of

evidence to support the non[-]moving party’s case.” Copeland v. Machulis, 57 F.3d 476, 478–79

(6th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Here, Defendants bear

this burden as the parties moving for summary judgment. If they meet their burden of production,

the burden shifts to the non-moving party, to advance “significant probative evidence tending to

support the complaint.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citation

omitted). We assess “the facts and any inferences [that can be] drawn from the facts in the light

most favorable to the non-moving party.” Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th

Cir. 2012) (en banc).

III.

A.

Harrison’s Employers

Parts Galore and Soave first argue that neither entity was an employer of Harrison, and

therefore neither may be held liable for her employment-related claims. The district court rejected

this argument, stating that although Harrison testified that neither Parts Galore nor Soave

Enterprises was her employer, “companies can be so intertwined that they constitute a single

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employer.” Harrison, 2019 WL 296699, at *2. On appeal, Parts Galore and Soave Enterprises

argue that the evidence of corporate interwovenness cited by the district court was not enough to

allow a reasonable jury to find that those companies were also subject to liability given her

admission that she was employed only by Ferrous. We disagree.

Harrison testified only as to which business she considered to be her formal employer.

However, neither the ADA’s plain language nor our precedent limits liability solely to such formal

employers. Start with the statutory text. It states that no “covered entity shall discriminate against

a qualified individual on the basis of disability” in various terms and conditions of employment.

42 U.S.C. § 12112(a) (emphasis added). The ADA defines “covered entity” to include “an

employer.” Id. § 12111(2). And it defines “employer” as a “person engaged in an industry

affecting commerce” with a certain number of employees as well as “any agent of such person.”

Id. § 12111(5)(A). Nowhere does this statutory text require the “covered entity” that engages in

the illegal discrimination to be the formal employer of the disabled individual who is subjected to

the discrimination. Cf. Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Ass’n of New

England, Inc., 37 F.3d 12, 16–18 (1st Cir. 1994).

Likewise, our case law has noted that an “employer” under the ADA is not always limited

to the company with whom the aggrieved employee has a direct employment relationship.

Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997) (noting that there

can be circumstances in “which a defendant that does not directly employ a plaintiff may still be

considered an ‘employer’ under [the ADA]”). In these situations, we follow three approaches to

examine whether two companies constitute one employer. Id. Under the first, we examine

“whether two entities are so interrelated that they may be considered a ‘single employer’ or an

‘integrated enterprise.’” Id.; see, e.g., York v. Tenn. Crushed Stone Ass’n, 684 F.2d 360 (6th Cir.

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1982). The second approach “consider[s] whether one defendant has control over another

company’s employees sufficient to show that the two companies are acting as a ‘joint employer’

of those employees.” Swallows, 128 F.3d at 993; see, e.g., Carrier Corp. v. NLRB, 768 F.2d 778

(6th Cir. 1985). The third addresses “whether the person or entity that took the allegedly illegal

employment action was acting as the agent of another company, which may then be held liable as

the plaintiffs’ employer.” Swallows, 128 F.3d at 993; see, e.g., Deal v. State Farm Cnty. Mut. Ins.

Co. of Tex., 5 F.3d 117 (5th Cir. 1993).

We conclude that a reasonable jury could find that Soave and Parts Galore are subject to

liability under this framework. Among other evidence concerning the relationship between the

entities, the individuals who were involved in the decision to terminate Harrison (and thus who

engaged in the alleged “discriminat[ion] against” her, 42 U.S.C. § 12112(a)) actually worked for

Parts Galore or Soave, not Ferrous. Tony Murell, the primary person who made the decision to

fire Harrison, was employed by Parts Galore. See Harrison, 2019 WL 296699, at *3. And Marcia

Moss, who was present with Murell during Harrison’s termination, was employed by Soave as its

Human Resources Director. See id. Soave and Parts Galore make no claim that they do not

otherwise qualify as “employers” under the relevant statutory definition (which requires that they

be engaged in an industry affecting commerce and have the required number of employees). See

42 U.S.C. § 12111(5)(A). And the definition of employer encompasses an employer’s “agent”—

like Murell and Moss for Parts Galore and Soave, respectively. While Soave argues that Moss had

no role in the actual termination decision, a dispute of fact exists on that issue. And a factual

dispute exists over whether the different entities are “so interrelated” that they would be considered

a “single employer” or “integrated enterprise.” We therefore hold that Soave and Parts Galore are

potentially subject to liability under the ADA.

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Qualifying Disabilities

To prevail on a claim of discrimination under the ADA, a plaintiff must show that she “(1)

is disabled, (2) [is] otherwise qualified to perform the essential functions of the position, with or

without accommodation, and (3) suffered an adverse employment action because of…her

disability.” Ferrari, 826 F.3d at 891.

At issue in this appeal is the first element. Under this element, a plaintiff can prove a

qualifying “disability” by demonstrating that she (1) is “actually disabled,” meaning the individual

possesses “a physical or mental impairment that substantially limits one or more major life

activities of such individual”; (2) has “a record of such an impairment”; or, (3) is “regarded as

having such an impairment.” 42 U.S.C. § 12102(1), (3).

Harrison pursues the first and third avenues of element one—that she is “actually disabled”

or that she was “regarded” by Defendants “as having such an impairment.” Id. § 12102(1), (3).

The district court found Harrison’s evidence insufficient to create a jury issue under either

approach. However, in doing so, the district court erroneously relied on Black v. Roadway Express,

Inc., 297 F.3d 445, 450 (6th Cir. 2002), which applied a stricter standard for establishing disability

that no longer governs following the 2008 amendments to the ADA.

1. “Actually Disabled” under Section 12102(1)(A).

To prove that she is “actually disabled” under § 12102(1)(A), a plaintiff must show “a

physical or mental impairment that substantially limits one or more major life activities.” The

statute enumerates a non-exhaustive list of “major life activities,” which include “caring for

oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,

bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and

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working.” 42 U.S.C. § 12102(2)(A). And, importantly, in accordance with the directives offered

by the Code of Federal Regulations, this court has held that “the term ‘major’ shall not be

interpreted strictly to create a demanding standard.” Hostettler v. Coll. of Wooster, 895 F.3d 844,

853 (6th Cir. 2018) (quoting 29 C.F.R. § 1630.2(i)(2)). We adopted this less-strict interpretation

because, “[i]n keeping with the remedial purposes of the ADAAA, ‘[t]he definition of disability’

under the ADA ‘shall be construed in favor of broad coverage.’”

Id. (quoting 42 U.S.C.

§ 12102(4)(A)). “That is because the primary concern of the ADA is ‘whether covered entities

have complied with their obligations and whether discrimination has occurred,’ not whether an

individual’s impairment is a disability.” Id. (quoting 29 C.F.R. § 1630.2(j)(1)(iii)).

Under the applicable ADA regulations, we “determine whether a disability substantially

limits major life activities” through comparison of “the person claiming a disability to ‘most people

in the general population.’” Id. (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). “‘An impairment need not

prevent, or significantly or severely restrict . . . a major life activity’ to be substantially limiting.”

Id. at 853–54 (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). Similar to the term “major life activities,”

“[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and

“is not meant to be a demanding standard.” Id. at 854 (quoting 29 C.F.R. § 1630.2(j)(1)(i)).

Indeed, a plaintiff need not show that her disability renders her unable to work, see

Morrissey v. Laurel Health Care Co., 946 F.3d 292, 300 (6th Cir. 2019), and a plaintiff need not

even tell her employer about her specific diagnosis. See id. Rather, it is enough that a plaintiff

simply tells her employer that she has certain limitations in relation to her work “because she

suffer[s] from a disability as defined by the ADA.” Id. (“[Plaintiff] told [her employer] that she

could not work more than twelve hours per shift because she suffered from a disability as defined

by the ADA. That was enough.”); see also Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th

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Cir. 1999) (“An employer has notice of the employee’s disability when the employee tells the

employer that he is disabled.” (citation omitted)); Cady v. Remington Arms Co, 665 F. App’x 413,

417 (6th Cir. 2016) (“[T]he employee need not use the word ‘disabled,’ but the employer must

know enough information about the employee’s condition to conclude that he is disabled. Relevant

information could include, among other things, a diagnosis, a treatment plan, apparent severe

symptoms, and physician-imposed work restrictions.” (internal citation omitted)).

Therefore, framed properly in light of post-2008 ADA law, “the question before us is

whether [Harrison] submitted enough evidence to show that she is substantially limited in her

ability to [kneel or walk].” Morrissey, 946 F.3d at 300. And, ultimately, based on our case law

that properly applies the post-2008 ADA standards for disability, we conclude that Harrison has

sufficient evidence to allow a reasonable jury to find “a physical or mental impairment that

substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).

In Morrissey, for instance, we concluded that the plaintiff had submitted enough evidence

to show that she was substantially limited in her ability to walk, stand, lift or bend, even with her

admission that she “did not have a specific limitation on the distance she could walk, the amount

of time she could stand, the amount of bending she could do, or the amount of weight she could

lift.” 946 F.3d at 300. It was enough that plaintiff alleged that, “after an eight-to twelve-hour

shift, she had difficulty walking, standing, lifting and bending,” and “she had so much trouble

bending over that it was difficult to put on her underwear.” Id. (emphasis added). We also found

significant that plaintiff’s daughter submitted an affidavit in which she stated that her mother “did

not walk at all or walked with a slight hunch and a pained expression after completing a day of

work.” Id.

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Similarly, in Hostettler, we concluded that plaintiff had sufficiently shown that her mix of

postpartum depression and separation anxiety, which impeded her ability to work full-time and

required her to ask for a modified work schedule from her employer, constituted a “disability”

under the post-2008 ADA. 895 F.3d at 853–54. In doing so, we dismissed defendant’s contention

that because plaintiff’s panic attacks were limited to several minute spans at a time, they did not

substantially limit any major life activity. Id. at 854. Instead, we found the episodic nature of the

disability to “make[] no difference under the ADA,” as “long as the impairment ‘would

substantially limit a major life activity when active,” id. (quoting 42 U.S.C. § 12102(4)(D)); and

in that case, the attacks substantially limited plaintiff’s ability to “care for herself, sleep, walk, or

speak, among others.” Id.; see 42 U.S.C. § 12102(2).

Under the directives of our case law and based on the regulations that direct us to construct

the term “substantially limits” “broadly in favor of expansive coverage,” 29 C.F.R. §

1630.2(j)(1)(i), we conclude that Harrison has satisfied the first element of a prima facie case of

disability discrimination under the ADA. First, Harrison has shown that she has a “physical . . .

impairment.” 42 U.S.C. § 12102(1)(A). Namely, Harrison presented evidence that in 2010 she

suffered an injury to her right knee in the shower, resulting in a damaged meniscus and torn ACL.

Thereafter, Harrison was required to have surgery on her meniscus, though she elected not to have

her ACL repaired, as it would have required her to stop taking medication that she needed and her

doctor informed her she could function without the surgery. The meniscus surgery required her to

take two days off of work, undergo a full treatment of physical therapy, and be under the shortterm supervision from a physician. These circumstances qualify Harrison’s knee injury as a

physical impairment under the ADAAA. See 42 U.S.C. § 12102(4)(A); Barlia v. MWI Veterinary

Supply, Inc., 721 F. App’x 439, 445 (6th Cir. 2018) (“Congress amended the ADA in 2008 to state

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that the term [disability] should be construed ‘in favor of broad coverage . . . , to the maximum

extent permitted by the [ADA’s] terms.’” (quoting 42 U.S.C. § 12102(4)(A)).

Second, similar to our evaluation of the plaintiffs’ evidence in Hostettler and Morrissey,

we conclude that Harrison has sufficient proof to show that her physical impairment “substantially

limits” a major life activity. 42 U.S.C. § 12102(1)(A), (2)(A). Namely, Harrison testified

categorically that because of her torn, unrepaired ACL, she cannot kneel to this day. Indeed, the

record shows that she was unable to kneel to look under cars, so she was provided a mirror for her

to undertake this task. The statute provides a non-exhaustive list of “major life activities,”

including “standing, lifting, [and] bending,” 42 U.S.C. § 12102(2)(A), and regulations add

“sitting” and “reaching” as additional examples, 29 C.F.R. § 1630.2(i)(1)(i).

Kneeling fits

comfortably within this list. Moreover, a reasonable juror could determine that the majority of the

general population can kneel and does not share Harrison’s physical limitation. 29 C.F.R. §

1630.2(j)(l)(v) (“The comparison of an individual’s performance of a major life activity to the

performance of the same major life activity by most people in the general population usually will

not require scientific, medical, or statistical analysis.”). Therefore, because Harrison’s physical

impairment—her knee injury—“substantially limits one or more major life activities,” the district

court erred in holding as a matter of law based on the record as it stands that Harrison was not

“actually disabled” under § 12102(1)(A). There is a genuine dispute regarding whether she was

“actually disabled” under § 12102(1)(A), which necessitates our reversal of the district court’s

summary judgment based on this issue.

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2. “Regarded As” Disabled under Section 12102(1)(C).

Harrison also has sufficient evidence for a reasonable jury to find that she has a qualifying

ADA “disability” under the “regarded as having [] an impairment” by her employer prong, see 42

U.S.C. § 12102(1)(C)), given Defendants’ knowledge of her knee injury.

Through the 2008 amendments, Congress liberalized the “regarded as having an

impairment” avenue of proving a disability under § 12102. Prior to the 2008 amendments, a

plaintiff was required to show that her employer (1) “mistakenly believe[d] that [she] ha[d] a

physical impairment that substantially limits one or more major life activities” or, alternatively,

that the employer (2) “mistakenly believe[d] that an actual, nonlimiting impairment substantially

limits one or more major life activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999);

accord Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 704 (6th Cir. 2008). Under both scenarios,

it was “necessary that [an employer] entertain misperceptions about the individual;” or in other

words, the employer had to “believe either” that the employee “ha[d] a substantially limiting

impairment that [she] [did] not have or that [she] ha[d] a substantially limiting impairment when,

in fact, the impairment is not so limiting.” Sutton, 527 U.S. at 489; accord Daugherty, 544 F.3d

at 704. However, in 2008, Congress deliberately relaxed the standard “because it believed that

Sutton (among other Supreme Court decisions) unduly ‘narrowed the broad scope of protection

intended to be afforded by the ADA,’” and thereby “eliminat[ed] protection for many individuals

whom Congress intended to protect.” Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308,

318 (6th Cir. 2019) (quoting ADA Amendments Act of 2008, Pub. L. 110-325, § 2(a)(4), 122 Stat.

3553 (2008)). Accordingly, the “regarded as” provision of the ADA now states that, for an

employee to make out a “regarded as” claim, the employee must establish: “that he or she has been

subjected to an action prohibited under this chapter because of an actual or perceived physical or

14a

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Case: 19-1176

Document: 52-2

Filed: 09/10/2020

Page: 15

mental impairment whether or not the impairment limits or is perceived to limit a major life

activity.” 42 U.S.C. § 12102(3)(A) (emphasis added). There is a limitation to this provision,

however: “regarded as” impairments “shall not apply to impairments that are transitory and

minor.” Babb, 942 F.3d at 319 (quoting 42 U.S.C. § 12102(3)(B) (emphasis added)). Therefore,

the “transitory and minor” limitation acts as an affirmative defense of which the employer bears

the burden of proving. Id.

Ultimately then, “to state the threshold condition of a ‘regarded as’ ADA claim, an

employee need only show that [her] employer believed [she] had a ‘physical or mental

impairment,’ as that term is defined in federal regulations.” Id. “The employer may then rebut

this showing by pointing to objective evidence ‘that the impairment is (in the case of an actual

impairment) or would be (in the case of a perceived impairment) both transitory and minor.’” Id.

(quoting 29 C.F.R. § 1630.15(f)); see Baum v. Metro Restoration Servs., Inc., 764 F. App’x 543,

547 (6th Cir. 2019); Neely v. Benchmark Family Servs., 640 F. App’x 429, 435 (6th Cir. 2016);

Bailey v. Real Time Staffing Servs., 543 F. App’x 520, 523 (6th Cir. 2013).

Applying the clarified “regarded as” standard to Harrison’s case, we conclude that a

genuine dispute of material fact exists with respect to Harrison’s perceived disability, and her

employer’s perception of such. The record indicates that Harrison’s employers knew about her

injury because: (1) when requesting the accommodation for her injury—the mirror—Harrison

referenced her ACL injury to validate the request; and (2) during her firing, Murell referenced

Harrison’s ACL injury. This is more than enough evidence from which a reasonable juror could

find that in December 2015, Defendants genuinely believed that Harrison had a knee injury that

affected her ability to kneel and work—therefore, representing a disability that we deem would

qualify as a “physical impairment” under the ADA given it affected Harrison’s “musculoskeletal”

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system. 29 C.F.R. § 1630.2(i)(1)(ii). Furthermore, given that Harrison testified that she injured

her knee in 2011, the five-year span between the injury and her termination suggests that the

impairment was neither “minor” nor “transitory.” 29 CFR § 1630.15(f). Although Defendants

highlight that (1) Harrison could perform other household tasks and (2) Harrison testified that she

had no other limitations across other activities, these facts do not necessarily rebut the notion that

Harrison’s employers still could have “perceived” her “as having an impairment” and fired her

because of that perceived limitation. This is particularly true, given the updated standard under

the ADA, which no longer requires the employer to believe the “impairment limits…a major life

activity.” 42 U.S.C. § 12102(3)(A).

In light of the above, we hold, in the alternative, that Harrison has sufficient evidence for

a reasonable jury to find that she satisfied the “regarded as” avenue of a qualifying ADA disability.

IV.

We conclude that a reasonable jury could find that Parts Galore and Soave are liable to

Harrison under the ADA. And given our holdings that Harrison has presented sufficient evidence

to create a genuine dispute of material fact regarding whether she is “actually disabled” or

“regarded as” disabled under § 12102(1)(A) and (C), we REVERSE the district court’s grant of

summary judgment in favor of Defendants. Therefore, we REMAND this case for further

proceedings consistent with this opinion.

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JACQUELINE HARRISON,

Plaintiff,

Civil Case No. 16-14084

Honorable Linda V. Parker

v.

SOAVE ENTERPRISES and

PARTS GALORE,

Defendants.

____________________________________/

OPINION AND ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT (ECF NO. 22)

Plaintiff Jacqueline Harrison initiated this action against Defendants Soave

Enterprises and Parts Galore (collectively “Defendants”) for violations of the

Americans with Disabilities Act (“ADA”), 42 U.S.C.A. § 12101 et seq., and

Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws Ann. §

37.2101 et. seq., alleging discrimination based on her claimed disability and her

weight. (ECF No. 1.)

Presently before the Court is Defendants’ motion for summary judgment,

pursuant to Federal Rule of Civil Procedure 56. (ECF No. 22.) Finding the facts

and legal arguments sufficiently presented in the parties’ briefs, the Court is

dispensing with oral argument pursuant to Eastern District of Michigan Local Rule

7.1(f)(2). (ECF Nos. 22, 23, 24.)

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APPENDIX B

Case 4:16-cv-14084-LVP-EAS ECF No. 25 filed 01/23/19

I.

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Factual Background

On or about December 20, 2005, Plaintiff Jacqueline Harrison began

working for or with Defendants Soave Enterprises and Parts Galore. (ECF No. 1 ¶

6.) Parts Galore maintains large vehicle yards and allows customers a self-service

opportunity to salvage parts from vehicles in the yard. (Id. ¶ 10.) Plaintiff served

as the Manager to the Warren Avenue Parts Galore operation. (Id. ¶ 7; ECF No. 22

¶ 5.) Her duties included, inter alia, spot checking five cars per day to ensure that

the vehicles were ready to be placed in the yard for customer use. (ECF No. 22 ¶¶

6–7.) This duty required Plaintiff to look under the hood of the vehicle and under

the vehicle itself to ensure that the catalytic converter had been removed. (Id. at ¶

8.) To examine under the vehicle itself, Plaintiff needed to kneel and look under

the car. (Id. ¶ 11.)

Plaintiff is obese, weighing 300 pounds at the time of her alleged

employment with Defendants, and suffers from a torn anterior cruciate ligament

(“ACL”). (ECF No. 23 at PgID 190; ECF No. 1 ¶ 11.) She alleges that her torn

ACL qualifies as a disability under the ADA and that it limits her mobility,

specifically her ability to kneel. (ECF No. 1 ¶ 11.) At some time in her

employment, Plaintiff claimed that she could not kneel to look underneath the

vehicles. (ECF No. 22 ¶ 12.) She requested that Defendant Parts Galore purchase

a mirror to aid her in inspecting the underside of the vehicles; Defendants

2

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purchased the mirror for Plaintiff, authorized by Tony Murell, Parts Galore

Regional Manager. (Id. ¶¶ 13–14.) Plaintiff later testified that, other than an

inability to kneel, she did not have any physical limitations that would preclude her

from performing her duties. (ECF No. 22-3 at PgID 107.) She also testified that,

at the time of her termination, no doctor had imposed any medical or physical

restrictions on her of any kind, and that she was not being treated for her ACL

injury. (Id. at PgID 102.) Plaintiff claims, however, that her ACL injury prevents

her from walking long distances and on certain terrains. (ECF No. 23-2 at PgID

215.) Although Plaintiff underwent knee surgery in or around 2011, she was not

given any limitations pertaining to her knee from her treating physician. (ECF No.

22-3 at PgID 102.) Other than the mirror, Plaintiff made no requests for

accommodations for her claimed disability from Defendants, and she believed that

no other accommodations were needed. (Id. at PgID 113.)

Plaintiff alleges that she was discriminated against because of her

disability—an ACL injury—arguing that: (1) Defendants refused to accommodate

her, and (2) Defendants terminated her due to her injury. She also alleges that she

was discriminated against because of her weight, arguing that Defendants

terminated her for that reason. Plaintiff testified that she was provided no other

reason for her termination and has no evidence of any reason other than

Defendants’ statements to her that she was terminated because of her ACL injury

3

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that limited her ability to perform her managerial duties. (ECF No. 22 ¶¶ 22–26;

ECF No. 22-3 at PgID 110, 112–113; ECF No. 1 ¶ 23.)

II.

Summary Judgment Standard

Summary judgment, pursuant to Federal Rule of Civil Procedure 56, is

appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The central inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56

mandates summary judgment against a party who fails to establish the existence of

an element essential to that party’s case and on which that party bears the burden

of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

“A party asserting that a fact cannot be or is genuinely disputed” must

designate specifically the materials in the record supporting the assertion,

“including depositions, documents, electronically stored information, affidavits or

declarations, stipulations, admissions, interrogatory answers, or other materials.”

Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence

and draw “all justifiable inferences” in the non-movant's favor. See Liberty Lobby,

477 U.S. at 255.

4

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The movant has the initial burden of showing “the absence of a genuine

issue of material fact.” Id. at 323. Once the movant meets this burden, the

“nonmoving party must come forward with specific facts showing that there is a

genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To

demonstrate a genuine issue, the nonmoving party must present sufficient evidence

upon which a jury could reasonably find for that party; a “scintilla of evidence” is

insufficient. See Liberty Lobby, 477 U.S. at 252.

III.

Applicable Law & Analysis

A. Plaintiff’s Employer

Defendants argue that neither Soave Enterprises nor Parts Galore employs

Plaintiff; rather, Plaintiff is employed by Ferrous Processing and Trading Company

(“FPT”). (ECF No. 22 at PgID 80.) Indeed, a claim of discrimination must be

lodged against the rightful employer. See 42 U.S.C.A §§ 12111(5), 12112(a); see

also Mich. Comp. Laws § 37.2202(1).

Although Plaintiff testified that FPT was her employer, companies can be so

intertwined that they constitute a single employer. (ECF No. 22-3 at PgID 100);

Swallows v. Barnes & Noble Book Stores, 128 F.3d 990, 993 (6th Cir. 1997).

Courts use three approaches to examine whether two companies may constitute

one employer: (1) courts examine whether two entities are so interrelated that they

5

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may be considered as one1, (2) courts consider whether one defendant has control

over another company's employees sufficient to show that the two companies are

acting as a “joint employer”, and (3) courts examine whether the person or entity

that took the allegedly illegal employment action was acting as the agent of another

company. Swallows, 128 F.3d at 992-93 (citations omitted).

Here, Plaintiff enumerates several facts that substantiate her claim that

Defendants should be considered her employer: (1) Bill Wild, Soave President of

Highway Auto Equipment, was her direct supervisor, ECF No. 23 at PgID 179, and

submitted the business plan to FPT to create Parts Galore, id. at PgID 183-84, (2)

Tony Murell, Parts Galore Regional Manager, also served as Plaintiff’s supervisor,

(3) FPT is a subsidiary of Soave, (4) FPT’s website states that it is owned by

Soave, (5) Mr. Murell decided and carried out Plaintiff’s termination, and (6)

Marcia Moss, Soave Human Resources Director, was present with Mr. Murell

during Plaintiff’s termination. Id. Given the shared management and supervision

between Soave and FPT and Soave’s ownership of FPT (which operates Parts

1

“In determining whether to treat two entities as a single employer, courts examine

the following four factors: (1) interrelation of operations, i.e., common offices,

common record keeping, shared bank accounts and equipment, (2) common

management, common directors and boards, (3) centralized control of labor

relations and personnel, and (4) common ownership and financial control.”

Swallows, 128 F.3d at 993-94 (citation omitted).

6

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Galore), the Court concludes that Defendant Soave Enterprises serves as Plaintiff’s

employer, subjecting it to potential liability under the ADA and ELCRA.

B. Disability Discrimination

To prove a prima facie case of disability discrimination, a plaintiff must

show that: (1) she is disabled, (2) she was otherwise qualified for the position, with

or without reasonable accommodation, (3) she suffered an adverse employment

decision, (4) Defendants knew or had reason to know of her disability, and (5) the

position remained open while Defendants sought other applicants. Ferrari v. Ford

Motor Co., 826 F.3d 885, 894 (6th Cir. 2016) (citing Monette v. Elec. Data Sys.

Corp., 90 F.3d 1173, 1186 (6th Cir. 1996))2. As to the first element, a “disability”

requires: (1) “a physical or mental impairment that substantially limits one or more

major life activities”, (2) “a record of such an impairment”, or (3) “being regarded

as having such an impairment.” 42 U.S.C.A § 12102(1). Major life activities

include, but are not limited to, “caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,

breathing, learning, reading, concentrating, thinking, communicating, and

working.” Id. § 12105(2).

2

Some Sixth Circuit cases use a three-element test, however, the five-element test

articulated in Monette remains the proper test. Ferrari, 826 F.3d at 895.

7

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Here, Plaintiff only claims one physical limitation—the ability to kneel. The

Sixth Circuit has previously affirmed that, although a knee injury constitutes a

physical impairment, “no reasonable jury could find that [a] knee injury

substantially limits … any major life activity.” Black v. Roadway Express, Inc.,

297 F.3d 445, 450 (6th Cir. 2002). Certainly, a knee injury impedes the ability to

walk. As in Black, however, Plaintiff’s “alleged inability to perform certain tasks

or functions on a repeated or prolonged basis is not enough, as a matter of law, for

[her] to meet the threshold requirement of proving that [she] is ‘disabled.’” Id. at

451 (citation omitted). Consequently, the Court holds that Plaintiff has not

established that she is disabled, and therefore, is not entitled to relief based on

disability discrimination.

Plaintiff raises two other arguments to support her disability discrimination

claim: (1) Defendants regarded her as disabled, and (2) Defendants refused to

accommodate her. First, Plaintiff supports her claim that she was regarded as

disabled solely on the fact that Defendants provided her a mirror when she

requested one. This act alone does not per se establish that Defendants regarded

Plaintiff as disabled3. Second, the Court has already concluded that Plaintiff is not

3

To prove that a plaintiff is regarded as disabled, she must either show that: (1)

Defendants mistakenly believed that she had an impairment limiting a major life

activity, or (2) Defendants mistakenly believed that an actual impairment limited a

(Cont’d . . .)

8

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disabled thereby extinguishing any potential claim of a refusal to accommodate.

Assuming that Plaintiff was disabled, however, her accomodation claim would still

fail because she has not provided any evidence that Defendants refused a requested

accommodation. Therefore, Plaintiff’s two arguments fail, and the Court

concludes that Plaintiff is not entitled to relief based on disability discrimination.

C. Weight Discrimination

To prove a prima facie case of weight discrimination under the ELCRA,

Plaintiff must prove that: (1) she belongs to a protected class, (2) she suffered an

adverse employment action, (3) she was qualified for the position, and (4) her

termination gives rise to an inference of unlawful discrimination. Sniecinski v.

Blue Cross & Blue Shield of Michigan, 666 N.W.2d 186, 193 (Mich. 2003)

(citation omitted). Once Plaintiff has presented a prima facie case of

discrimination, the burden then shifts to the Defendants to articulate a legitimate,

nondiscriminatory reason for the adverse employment action. Id. If Defendants

produce such evidence, the presumption is rebutted, and the burden shifts back to

major life activity. Talley v. Family Dollar Stores of Ohio, 542 F.3d 1099, 1106

(6th Cir. 2008). The evidence establishes that: (1) Plaintiff was impaired by her

ACL injury which limited her ability to kneel, and (2) Defendants were neither

mistaken about this impairment nor believed it to limit a major life activity. Thus,

Plaintiff fails to establish that she was regarded as disabled.

(Cont’d . . .)

9

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Plaintiff to show that Defendants’ reason was not the true reason, but a mere

pretext for discrimination. Id.

Plaintiff has demonstrated that: (1) she belongs to a protected class4, and (2)

she was terminated from her employment with FPT. Defendants have not argued

that Plaintiff was unqualified for the position. Additionally, Plaintiff performed

her managerial duties for some years while employed by FPT. However, she

eventually needed an accommodation to perform her duties. Defendants supplied

Plaintiff with an accommodation (although not required under the ADA because

her ACL injury is not recognized as a disability under the Act). This demonstrates

that Plaintiff was hindered from performing the full extent of her duties without an

accommodation. Regardless, the Court will recognize Plaintiff as qualified.

Finally, because the Court must draw “all justifiable inferences” in the nonmovant's favor5, the Court will infer that Plaintiff’s termination was based on, at

least in part, her weight.

Addressing Defendants’ reason for Plaintiff’s termination, Plaintiff testified

that the only reason articulated to her by Defendants was her ACL injury that

prevented her from performing her managerial duties. (ECF No. 22-3 at PgID

112.) In fact, Plaintiff further testified that: (1) she was never treated differently by

4

An employer shall not discharge an individual from employment because of

weight. See Mich. Comp. Laws Ann. § 37.2202(1)(a).

5

See Liberty Lobby, 477 U.S. at 255.

10

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Page 11 of 12

any supervisor, (2) she never heard any supervisor refer to her weight at any time,

and (3) she has no other evidence that she was terminated because of her weight.

(Id. at PgID 112-113.) Thus, Defendants have provided a legitimate,

nondiscriminatory reason for her termination—an inability to perform her duties

because of a knee injury. Plaintiff, however, has failed to demonstrate and failed

to provide sufficient evidence that convinces the Court that Defendants’ reason

merely serves as pretext for discrimination. Therefore, the Court holds that

Plaintiff has failed to establish a claim of weight discrimination under the ELCRA

and is not entitled to relief on that basis.

IV.

Conclusion

For the reasons set forth above, the Court grants Defendants’ motion for

summary judgment, pursuant to Federal Rule of Civil Procedure 56.

Accordingly,

IT IS ORDERED that Defendants’ motion for summary judgment (ECF

No. 22) is GRANTED; and

IT IS FURTHER ORDERED that Plaintiff’s complaint (ECF No. 1) is

DISMISSED with prejudice.

s/ Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: January 23, 2019

11

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I hereby certify that a copy of the foregoing document was mailed to counsel of

record and/or pro se parties on this date, January 23, 2019, by electronic and/or

U.S. First Class mail.

s/ R. Loury

Case Manager

12

28a

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

EEOC Fo,m 16 1 (1/08)

DISMISSAL AND NOTICE OF RIGHTS

Jacqueline M. Harrison

15235 Flanders Street

Southgate, Ml 48195

To:

D

From:

Detroit Field Office

477 Michigan AvenuR

Room 865

Detroit, Ml 48226

On behalf of person(s) aggrieved whose identity is

CONFIDENTIAL (29 CFR §1601 . 7(a))

EEOC Charge No.

EEOC Representative

Telephone No.

Doritha R. Brown,

471-2016-01002

Investigator

(313) 226-6339

THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE FOLLOWING REASON:

D

D

D

D

The facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC.

You r allegations did not involve a disability as defined by the America ns With Disabilities Act.

The Respondent employs less than the required number of employees or is not otherwise covered by the sta tutes.

Your charge was not timely filed with EEOC; in other words, you waited too long after the date(s) of the alleged

discrimination to file you r charge.

The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the

information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with

the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.

D

D

The EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge.

Other (briefly state)

- NOTICE OF SUIT RIGHTS (See the additional information attached to this form.)

Title VII , the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age

Discrimination in Employment Act: This will be the only notice of dismissal and of your right to sue that we will send

you . You may file a lawsuit against the respondent(s) under federal law based on th is charge in federal or state cou rt.

Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your rig ht to sue based on this charge

will be lost. (The time limit for fil ing suit based on a claim under state law may be different.)

Equal Pay Act (EPA) : EPA suits must be filed in federal or state court within 2 years (3 years for willful violations) of the

alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 years)

before you file suit may not be collectible

Enclosures(s)

cc:

-~., · {)' L. \tack Vasquez, Acting District Director

Marcia Moss

Human Resources Manager

Ferrous Processing & Trading Parts Galore

5970 West Warren Avenue

Detroit, Ml 48210

Bryant M. Frank, Senior Counsel

Ferrous Processing & Trading Co.

3400 East Lafayette

Detroit, Ml 48207

29a

(Date Mailed)

Joseph A. Golden, Attorney

Burgess Sharp & Golden PLLC

43260 Garfield, Suite #280

Clinton Township, Ml 48038

APPENDIX C

Enclosure with EEOC

Form 161 (1/08)

INFORMATION RELATED TO FILING SUIT

UNDER THE LAWS ENFORCED BY THE EEOC

(This information relates to filing suit 111 Federal or State court under Federal law.

ff you also plan to sue claiming violations of State law, please be aware that time limits and other

provisions of State law may be shorter or more limited than those described below.)

Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA),

or the Age Discrimination in Employment Act (ADEA):

PRIVATE SUIT RIGHTS

In order to pursue this matter further, you must file a lawsuit against the respondent(s) named in the charge within

90 days of the date you receive this Notice. Therefore, you should keep a record of this date. Once this 90day period is over, your right to sue based on the charge referred to in this Notice will be lost. If you intend to

consult an attorney, you should do so promptly. Give your attorney a copy of this Notice, and its envelope, and tell

him or her the date you received it. Furthermore, in order to avoid any question that you did not act in a timely

manner, it is prudent that your suit be filed within 90 days of the date this Notice was mailed to you (as

indicated where the Notice is signed) or the date of the postmark, if later.

Your lawsuit may be filed in U.S. District Court or a State court of competent jurisdiction. (Usually, the appropriate

State court is the general civil trial court.) Whether you file in Federal or State court is a matter for you to decide

after talking to your attorney. Filing this Notice is not enough. You must file a "complaint" that contains a short

statement of the facts of your case which shows that you are entitled to relief. Your suit may include any matter

alleged in the charge or, to the extent permitted by court decisions, matters like or related to the matters alleged in

the charge. Generally, suits are brought in the State where the alleged unlawful practice occurred, but in some

cases can be brought where relevant employment records are kept, where the employment would have been, or

where the respondent has its main office. If you have simple questions, you usually can get answers from the

office of the clerk of the court where you are bringing suit, but do not expect that office to write your complaint or

make legal strategy decisions for you.

PRIVATE SUIT RIGHTS

--

Equal Pay Act (EPA):

EPA suits must be filed in court within 2 years (3 years for willful violations) of the alleged EPA underpayment: back

pay due for violations that occurred more than 2 years (3 years) before you file suit may not be collectible. For

example, if you were underpaid under the EPA for work performed from 7/1/08 to 12/1/08, you should file suit

before 7/1/10 - not 12/1/10 -- in order to recover unpaid wages due for July 2008. This time limit for filing an EPA

suit is separate from the 90-day filing period under Title VII, the ADA or the ADEA referred to above. Therefore, if

you also plan to sue under Title VII, the ADA or the ADEA, in addition to suing on the EPA claim, suit must be filed

within 90 days of this Notice and within the 2- or 3-year EPA back pay recovery period.

ATTORNEY REPRESENTATION

Title VII and the ADA:

If you cannot afford or have been unable to obtain a lawyer to represent you, the U.S. District Court having jurisdiction

in your case may, in limited circumstances, assist you in obtaining a lawyer. Requests for such assistance must be

made to the U.S. District Court in the form and manner it requires (you should be prepared to explain in detail your

efforts to retain an attorney). Requests should be made well before the end of the 90-day period mentioned above,

because such requests do not relieve you of the requirement to bring suit within 90 days.

ATTORNEY REFERRAL AND EEOC ASSISTANCE

All Statutes:

You may contact the EEOC representative shown on your Notice if you need help in finding a lawyer or if you have any

questions about your legal rights, including advice on which U.S. District Court can hear your case. If you need to

inspect or obtain a copy of information in EEOC's file on the charge, please request it promptly in writing and provide

your charge number (as shown on your Notice). While EEOC destroys charge files after a certain time, all charge files

are kept for at least 6 months after our last action on the case. Therefore, if you file suit and want to review the charge

file, please make your review request within 6 months of this Notice. (Before filing suit, any request should be

made within the next 90 days.)

IF YOU FILE SUIT, PLEASE SEND A COPY OF YOUR COURT COMPLAINT TO THIS OFFICE.

30a

Case: 19-1176

Document: 58-1

Filed: 10/13/2020

Page: 1

No. 19-1176

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JACQUELINE HARRISON,

Plaintiff-Appellant,

v.

SOAVE ENTERPRISES L.L.C. and PARTS GALORE L.L.C.,

Defendants-Appellees.

FILED

Oct 13, 2020

DEBORAH S. HUNT, Clerk

)

)

)

)

)

)

)

)

)

)

)

)

ORDER

BEFORE: GUY, BUSH, and MURPHY, Circuit Judges.

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision of the case. The petition then was circulated to the full

court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

31a

APPENDIX D

32a

APPENDIX E

.(e d) Religious entities .

.(tl e) List of infectious and communicable diseases.

Sec. 12114. Illegal use of drugs and alcohol. [Section 104]

(.!!)_Qualified individual with a disability~

.(h) Rules of construction.

.(_g_) AuthoritY. of covered entity~

.(~) TransP.ortation emP.lOY.ees.

Sec. 12115. Posting notices. [Section 105]

Sec. 12116. Regylations. [Section 106]

Sec. 12117. Enforcement. [Section 107]

(.!!) Powers, remedies, and P.rocedures .

.(h) Coordination.

SUBCHAPTER II - PUBLIC SERVICES [Title II]

PART A - Prohibition Against Discrimination and Other Generally Applicable Provisions [Subtitle A]

Sec. 12131. Definitions. [Section 201]

Sec. 12132. Discrimination. [Section 202]

Sec. 12133. Enforcement. [Section 203]

Sec. 12134. Regylations. [Section 204]

(.!!) In general.

.(h) RelationshiP. to other regylations .

.(_g_) Standards.

PART B -Actions Applicable to Public Transportation Provided by Public Entities Considered

Discriminatory [Subtitle B]

SUBPART I - Public Transportation Other Than by Aircraft or Certain Rail Operations [Part I]

Sec. 12141. Definitions. [Section 221]

Sec. 12142. Public entities OP.erating fixed route SY.Stems. [Section 222]

(.!!) Purchase and lease of new vehicles .

.(h) Purchase and lease of used vehicles.

33a

.(_g_) Remanufactured vehicles.

Sec. 12143. Paratransit as a comP-lement to fixed route service. [Section 223]

(f!) General rule .

.(b.) Issuance of regulations .

.(_g_)...R.e.guired contents of regulations .

.(.d) Review of P-lan .

.(e) "Discrimination" defined .

.(f) Statutozy. construction.

Sec. 12144. Public enti!Y. OP-erating a demand resP-onsive SY.Stem. [Section 224]

Sec. 12145. TemP-orazy. relief where lifts are unavailable. [Section 225]

(£!) Granting,

.(b.) Duration and notice to Congress .

.(_g_) Fraudulent aP-P-lication.

Sec. 12146. New facilities. [Section 226]

Sec. 12147. Alterations of existing facilities. [Section 227]

(f!) General rule .

.(b.)...SP-ecial rule for stations.

Sec. 12148. Public transP-ortation P-rograms and activities in existing facilities and one car P-er train rule.

[Section 228]

(f!) Public transP-ortation P-rograms and activities in existing facilities .

.(b.) One car P-er train rule.

Sec. 12149. Regulations. [Section 229]

.(b.) Standards.

Sec. 12150. Interim accessibili!Y. reguirements. [Section 230]

SUBPART II - Public Transportation by Intercity and Commuter Rail [Part II]

Sec. 12161. Definitions. [Section 241]

Sec. 12162. Interci!Y. and commuter rail actions considered discriminatozy.. [Section 242]

(£!) Interci!Y. rail transP-ortation.

34a

.(b.) Commuter rail transP-ortation.

(£) Used rail cars .

.(g) Remanufactured rail cars .

.(~) Stations.

Sec. 12163. Conformance of accessibilitY. standards. [Section 243]

Sec. 12164. Regylations. [Section 244]

Sec. 12165. Interim accessibilitY. reQuirements. [Section 245]

(f!) Stations.

SUBCHAPTER III - PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY PRIVATE

ENTITIES [Title III]

Sec. 12181. Definitions. [Section 301]

Sec. 12182. Prohibition of discrimination by_P-ublic accommodations. [Section 302]

(f!) General rule .

.(b.) Construction.

Sec. 12183. New construction and alterations in P-Ublic accommodations and commercial facilities. [Section

302]

fo) AP-P-lication of term .

.(b.) Elevator.

Sec. 12184. Prohibition of discrimination in SP-ecified P-Ublic transP-ortation services P-rovided by_P-rivate

entities. [Section 303]

(f!) General rule .

.(b.) Construction.

(£) Historical or antiQuated cars.

Sec. 12185. Study..,_[Section 305]

.(b.) Contents.

(£) Advisozy. committee .

.(g) Deadline .

.(~) Review.

35a

Sec. 12186. Regylations. [Section 306]

(!!) Transnortation nrovisions.

(Q) Other nrovisions.

(£) Consistency: with ATBCB gyidelines .

.(d) Interim accessibility: standards.

Sec. 12187. Exemntions for nrivate clubs and religious organizations. [Section 307]

Sec. 12188. Enforcement. [Section 308]

(.!!) In general.

.Ch) Enforcement by: Attorney: General.

Sec. 12189. Examinations and courses. [Section 309]

SUBCHAPTER IV MISCELLANEOUS PROVISIONS [Title V]

Sec. 12201. Construction. [Section 501]

fa) In general.

.(b.) RelationshiP- to other laws .

.(9.) Insurance .

.(g) Accommodations and services .

.(~). Benefits under State worker's comnensation laws .

.(0. Fundamental alteration .

.(g). Claims of no disability~

.(h) Reasonable accommodation and modifications.

Sec. 12202. State immunity...... [Section 502]

Sec. 12203. Prohibition against retaliation and coercion. [Section 503]

(.!!) Retaliation .

.(b.) Interference, coercion, or intimidation.

.(9.) Remedies and nrocedures.

Sec. 12204. Regylations by: the Architectural and TransP-ortation Barriers Comnliance Board. [Section 504]

fa) Issuance of gyidelines .

.(b.) Contents of gyidelines .

.(9.)_Qualified historic P-ronerties.

36a

Sec. 12205. Attorne):'.'s fees. [Section 505]

Sec. 12205a. Rule of construction regarding regulaton: authority..,,

Sec. 12206. Technical assistance. [Section 506]

(!!) Plan for assistance .

.(h) AgencY. and 12ublic assistance.

(£) Im12lementation .

.(g) Grants and contracts .

.(~) Failure to receive assistance.

Sec. 12207. Federal wilderness areas. [Section 507]

(.!!) Study.,.

.(h) Submission of re12ort.

(9.)...S12ecific wilderness access.

Sec. 12208. Transvestites. [Section 508]

Sec. 12209. Instrumentalities of Congress. [Section 509]

Sec. 12210. Illegal use of drug~[Section 510]

fa) In general.

.Ch) Rules of construction.

(£) Health and other services .

.(d) "Illegal use of drugs" defined.

Sec. 12211. Definitions. [Section 511]

(.!!) Homosexualizy. and bisexuality.,.

.(h) Certain conditions.

Sec. 12212. Alternative means of dis12ute resolution. [Section 512]

Sec. 12213. Severability. . . . [Section 513]

TITLE 47 - TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS

CHAPTER 5 - WIRE OR RADIO COMMUNICATION .

SUBCHAPTER II - COMMON CARRIERS

Part I - Common Carrier Regulation

37a

Sec. 225. Telecommunications services for hearing-imP-aired and SP-eech-imP-aired individuals [Section 401]

.(si) Definitions .

.(h) Availabilizy. of telecommunications relaY. services .

.(~) Provision of services .

.(d) Regulations .

.(~) Enforcement.

.(f) Certification.

.(g) ComP-laint.

TITLE 47 - TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS

CHAPTER 5 - WIRE OR RADIO COMMUNICATION .

SUBCHAPTER VI - MISCELLANEOUS PROVISIONS

Sec. 611. Closed-caP-tioning of P-ublic service announcements [Section 402]

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 126 - EQUAL OPPORTUNITY FOR INDIVIDUALS WITH DISABILITIES

Sec. 12101. Findings and purpose

(a) Findings

The Congress finds that

(1) some 43,000,000 Amerietlfts ktYte otte Of fflOfe physiea:l Of metttal disabilities, tlfta this fttffl'lbef

is ittefeasittg as the popttlatiott as a whole is growiflg olaef;

physical or mental disabilities in no way diminish a person's right to fully participate in all

aspects of society, yet many people with physical or mental disabilities have been precluded

from doing so because of discrimination; others who have a record of a disability or are

regarded as having a disability also have been subjected to discrimination;

(2) historically, society has tended to isolate and segregate individuals with disabilities, and,

despite some improvements, such forms of discrimination against individuals with disabilities

continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as

employment, housing, public accommodations, education, transportation, communication,

recreation, institutionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex,

national origin, religion, or age, individuals who have experienced discrimination on the basis of

38a

disability have often had no legal recourse to redress such discrimination;

(5) individuals with disabilities continually encounter various forms of discrimination, including

outright intentional exclusion, the discriminatory effects of architectural, transportation, and

communication barriers, overprotective rules and policies, failure to make modifications to

existing facilities and practices, exclusionary qualification standards and criteria, segregation, and

relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people with disabilities, as

a group, occupy an inferior status in our society, and are severely disadvantaged socially,

vocationally, economically, and educationally;

(7) itttli-vidttals ·.vitlt disabilities are a diserete ftfl:d iflsttlar ffliflerity vthe have beeft: faeed with

restfietieft:s ftfl:d lifflitatiefls, sttbjeeted te a histeey ef f)ttfpeseful ttft:e€J:ttal tfeatffleft:t, ftfl6 relegated

te a f'Bsitieft: ef f'Blitieal 'Pe·.veriessft:ess ifl ettf seeiety, based eft: eharaeteristies that are beyeft:d the

eeft:ifel ef stteh ifldi-tidttals and resttltin-g ffl)ffl stereeiy'Pie assttffl:ptieft:s ft.et tfttly ifldieati-te ef the

ifltttvidttal ability ef Stteh ifldividttals te 'Partieif'ate ifl, 1t1td eeft:ifi-bttte te, seeiety;

(8- 7) the Nation's proper goals regarding individuals with disabilities are to assure equality of

opportunity, full participation, independent living, and economic self-sufficiency for such

individuals; and

(9 8) the continuing existence of unfair and unnecessary discrimination and prejudice denies

people with disabilities the opportunity to compete on an equal basis and to pursue those

opportunities for which our free society is justifiably famous, and costs the United States billions

of dollars in unnecessary expenses resulting from dependency and nonproductivity.

(b) Purpose

It is the purpose of this chapter

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination

against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against

individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards

established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth

amendment and to regulate commerce, in order to address the major areas of discrimination faced

day-to-day by people with disabilities.

Sec. 12101 note: Findings and Purposes of ADA Amendments Act of 2008, Pub. L. 110-325, § 2, Sept.

25, 2008, 122 Stat. 3553, provided that:

(a) Findings

Congress finds that(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that

the Act "provide a clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities" and provide broad coverage;

39a

(2) in enacting the ADA, Congress recognized that physical and mental disabilities in no

way diminish a person's right to fully participate in all aspects of society, but that people

with physical or mental disabilities are frequently precluded from doing so because of

prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers;

(3) while Congress expected that the definition of disability under the ADA would be

interpreted consistently with how courts had applied the definition of a handicapped

individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled;

(4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471

(1999) and its companion cases have narrowed the broad scope of protection intended to be

afforded by the ADA, thus eliminating protection for many individuals whom Congress

intended to protect;

(5) the holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v.

Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be

afforded by the ADA;

(6) as a result of these Supreme Court cases, lower courts have incorrectly found in

individual cases that people with a range of substantially limiting impairments are not

people with disabilities;

(7) in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky,

Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term "substantially limits" to require a

greater degree of limitation than was intended by Congress; and

(8) Congress finds that the current Equal Employment Opportunity Commission ADA

regulations defining the term "substantially limits" as "significantly restricted" are

inconsistent with congressional intent, by expressing too high a standard.

(b) Purposes

The purposes of this Act are(1) to carry out the ADA's objectives of providing "a clear and comprehensive national

mandate for the elimination of discrimination" and "clear, strong, consistent, enforceable

standards addressing discrimination" by reinstating a broad scope of protection to be

available under the ADA;

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air

Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment

substantially limits a major life activity is to be determined with reference to the

ameliorative effects of mitigating measures;

(3) to reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471

(1999) with regard to coverage under the third prong of the definition of disability and to

reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline,

480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of

handicap under the Rehabilitation Act of 1973;

(4) to reject the standards enunciated by the Supreme Court in Toyota Motor

Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms

"substantially" and "major" in the definition of disability under the ADA "need to be

interpreted strictly to create a demanding standard for qualifying as disabled," and that to

be substantially limited in performing a major life activity under the ADA "an individual

40a

must have an impairment that prevents or severely restricts the individual from doing

activities that are of central importance to most people's daily lives";

(5) to convey congressional intent that the standard created by the Supreme Court in the

case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for

"substantially limits", and applied by lower courts in numerous decisions, has created an

inappropriately high level of limitation necessary to obtain coverage under the ADA, to

convey that it is the intent of Congress that the primary object of attention in cases brought

under the ADA should be whether entities covered under the ADA have complied with their

obligations, and to convey that the question of whether an individual's impairment is a

disability under the ADA should not demand extensive analysis; and

(6) to express Congress' expectation that the Equal Employment Opportunity Commission

will revise that portion of its current regulations that defines the term "substantially limits"

as "significantly restricted" to be consistent with this Act, including the amendments made

by this Act.

Sec. 12102. Demttietts Definition of disability

As used in this chapter:

(1) Affl(.iliaey aids attd setViees

Tlie teffli "affl(.iliaey aids and sefViees" ittelttdes

(A.) EJ:ttalified mieff't'eters er etlier effeetive ffletheds of ffltlffl:ttg attfally deltvefed fflatefials

available to ittdi-vidttals witli lietlfffl:g ifflpaiffllefl:ts;

(B) EJ:ttalified readers, taped texts, er etlief effeetive ffletlieds efffltlffl:fl:g v'isttally delivefed

fflatefials a·1ailable to ittdi-vidttals vtith visttal ifflpaimtems;

(C) ae€J:l:lisitiett er ffledifieatiett of eEJ:ttipfflefl:t er deviees; and

(D) ether siffliltlf serviees tlfl:6 aetietts.

[Note: the definition of "auxiliary aids and services" has been moved to Section 12103.J

(r 1) Disability

The term "disability" means, with respect to an individual

(I-A) a physical or mental impairment that substantially limits one or more major life

activities of such individual;

(tt B) a record of such an impairment; or

(tti C) being regarded as having such an impairment (as described in paragraph (3)).

(3) State

Tlie teffll "State" ffleatts eaeli of the several States, the Distfiet of Columbia, the Cefflfflett·.vealt:h

of Pttefte Riee, Gttftffl:, Amefietlfl: Sf:lffl6a, the Vifgi:H: Isltlfl:ds, the Tmst Temtory of the Paeifie

Isltlfl:ds, tlfl6 the Cefflffl:et•twealtli of the Nettltem Mariana Islands.

[Note: the definition of "state" has been moved to Section 12103.J

(2) Major Life Activities

41a

(A) In general

For purposes of paragraph (1), major life activities include, but are not limited to,

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,

standing, lifting, bending, speaking, breathing, learning, reading, concentrating,

thinking, communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a

major bodily function, including but not limited to, functions of the immune system,

normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,

circulatory, endocrine, and reproductive functions.

(3) Regarded as having such an impairment

For purposes of paragraph (l)(C):

(A) An individual meets the requirement of "being regarded as having such an

impairment" if the individual establishes that he or she has been subjected to an action

prohibited under this chapter because of an actual or perceived physical or mental

impairment whether or not the impairment limits or is perceived to limit a major life

activity.

(B) Paragraph (l)(C) shall not apply to impairments that are transitory and minor. A

transitory impairment is an impairment with an actual or expected duration of 6

months or less.

(4) Rules of construction regarding the definition of disability

The definition of "disability" in paragraph (1) shall be construed in accordance with the

following:

(A) The definition of disability in this chapter shall be construed in favor of broad

coverage of individuals under this chapter, to the maximum extent permitted by the

terms of this chapter.

(B) The term "substantially limits" shall be interpreted consistently with the findings

and purposes of the ADA Amendments Act of 2008.

(C) An impairment that substantially limits one major life activity need not limit other

major life activities in order to be considered a disability.

(D) An impairment that is episodic or in remission is a disability if it would

substantially limit a major life activity when active.

(E)

(i) The determination of whether an impairment substantially limits a major life

activity shall be made without regard to the ameliorative effects of mitigating

measures such as

(I) medication, medical supplies, equipment, or appliances, low-vision devices

(which do not include ordinary eyeglasses or contact lenses), prosthetics

including limbs and devices, hearing aids and cochlear implants or other

42a

implantable hearing devices, mobility devices, or oxygen therapy equipment

and supplies;

(11) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or

contact lenses shall be considered in determining whether an impairment

substantially limits a major life activity.

(iii) As used in this subparagraph

(I) the term "ordinary eyeglasses or contact lenses" means lenses that are

intended to fully correct visual acuity or eliminate refractive error; and

(11) the term "low-vision devices" means devices that magnify, enhance, or

otherwise augment a visual image.

Sec. 12103. Additional definitions

As used in this chapter

(1) Auxiliary aids and services

The term "auxiliary aids and services" includes

(A) qualified interpreters or other effective methods of making aurally delivered

materials available to individuals with hearing impairments;

(B) qualified readers, taped texts, or other effective methods of making visually

delivered materials available to individuals with visual impairments;

(C) acquisition or modification of equipment or devices; and

(D) other similar services and actions.

(2) State

The term "State" means each of the several States, the District of Columbia, the Commonwealth of

Puerto Rico, Guam, American Samoa, the Virgin Islands of the United States, the Trust Territory of

the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.

SUBCHAPTERI-EMPLOYMENT

Sec. 12111. Definitions

As used in this subchapter:

(1) Commission

The term "Commission" means the Equal Employment Opportunity Commission established by

section 2000e-4 of this title.

(2) Covered entity

43a

The term "covered entity" means an employer, employment agency, labor organization, or joint

labor-management committee.

(3) Direct threat

The term "direct threat" means a significant risk to the health or safety of others that cannot be

eliminated by reasonable accommodation.

(4) Employee

The term "employee" means an individual employed by an employer. With respect to

employment in a foreign country, such term includes an individual who is a citizen of the United

States.

(5) Employer

(A) In general

The term "employer" means a person engaged in an industry affecting commerce who has 15

or more employees for each working day in each of 20 or more calendar weeks in the current

or preceding calendar year, and any agent of such person, except that, for two years

following the effective date of this subchapter, an employer means a person engaged in an

industry affecting commerce who has 25 or more employees for each working day in each of

20 or more calendar weeks in the current or preceding year, and any agent of such person.

(B) Exceptions

The term "employer" does not include

(i) the United States, a corporation wholly owned by the government of the United

States, or an Indian tribe; or

(ii) a bona fide private membership club (other than a labor organization) that is exempt

from taxation under section 501(c) of title 26.

(6) Illegal use of drugs

(A) In general

The term "illegal use of drugs" means the use of drugs, the possession or distribution of

which is unlawful under the Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term

does not include the use of a drug taken under supervision by a licensed health care

professional, or other uses authorized by the Controlled Substances Act or other provisions

of Federal law.

(B) Drugs

The term "drug" means a controlled substance, as defined in schedules I through V of

section 202 of the Controlled Substances Act [21 U.S.C. 812].

(7) Person, etc.

The terms "person", "labor organization", "employment agency", "commerce", and "industry

affecting commerce", shall have the same meaning given such terms in section 2000e of this title.

(8) Qualified individual vlith: a disability

44a

The term "qualified individual wi-tlt a disability" means an individual v;itlt a disability who, with

or without reasonable accommodation, can perform the essential functions of the employment

position that such individual holds or desires. For the purposes of this subchapter, consideration

shall be given to the employer's judgment as to what functions of a job are essential, and if an

employer has prepared a written description before advertising or interviewing applicants for the

job, this description shall be considered evidence of the essential functions of the job.

(9) Reasonable accommodation

The term "reasonable accommodation" may include

(A) making existing facilities used by employees readily accessible to and usable by

individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant

position, acquisition or modification of equipment or devices, appropriate adjustment or

modifications of examinations, training materials or policies, the provision of qualified

readers or interpreters, and other similar accommodations for individuals with disabilities.

(10) Undue hardship

(A) In general

The term "undue hardship" means an action requiring significant difficulty or expense, when

considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered

In determining whether an accommodation would impose an undue hardship on a covered

entity, factors to be considered include

(i) the nature and cost of the accommodation needed under this chapter;

(ii) the overall financial resources of the facility or facilities involved in the provision

of the reasonable accommodation; the number of persons employed at such facility; the

effect on expenses and resources, or the impact otherwise of such accommodation upon

the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business

of a covered entity with respect to the number of its employees; the number, type, and

location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition,

structure, and functions of the workforce of such entity; the geographic separateness,

administrative, or fiscal relationship of the facility or facilities in question to the

covered entity.

Sec. 12112. Discrimination

(a) General rule

No covered entity shall discriminate against a qualified individual ·.vith: a disal,ility beeattse eftlte

disability ef stteh inei-1iettal on the basis of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee compensation, job training, and other

terms, conditions, and privileges of employment.

45a

(b) Construction

As used in subsection (a) of this section, the term "disefffll::ffl:ate" "discriminate against a qualified

individual on the basis of disability" includes

(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely

affects the opportunities or status of such applicant or employee because of the disability of such

applicant or employee;

(2) participating in a contractual or other arrangement or relationship that has the effect of

subjecting a covered entity's qualified applicant or employee with a disability to the

discrimination prohibited by this subchapter (such relationship includes a relationship with an

employment or referral agency, labor union, an organization providing fringe benefits to an

employee of the covered entity, or an organization providing training and apprenticeship

programs);

(3) utilizing standards, criteria, or methods of administration

(A) that have the effect of discrimination on the basis of disability;

(B) that perpetuates the discrimination of others who are subject to common administrative

control;

(4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the

known disability of an individual with whom the qualified individual is known to have a

relationship or association;

(5)

(A) not making reasonable accommodations to the known physical or mental limitations of

an otherwise qualified individual with a disability who is an applicant or employee, unless

such covered entity can demonstrate that the accommodation would impose an undue

hardship on the operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise

qualified individual with a disability, if such denial is based on the need of such covered

entity to make reasonable accommodation to the physical or mental impairments of the

employee or applicant;

(6) using qualification standards, employment tests or other selection criteria that screen out or

tend to screen out an individual with a disability or a class of individuals with disabilities unless

the standard, test or other selection criteria, as used by the covered entity, is shown to be jobrelated for the position in question and is consistent with business necessity; and

(7) failing to select and administer tests concerning employment in the most effective manner to

ensure that, when such test is administered to a job applicant or employee who has a disability

that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills,

aptitude, or whatever other factor of such applicant or employee that such test purports to

measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee

or applicant (except where such skills are the factors that the test purports to measure).

(c) Covered entities in foreign countries

( 1) In general

46a

It shall not be unlawful under this section for a covered entity to take any action that constitute

discrimination under this section with respect to an employee in a workplace in a foreign country

if compliance with this section would cause such covered entity to violate the law of the foreign

country in which such workplace is located.

(2) Control of corporation

(A) Presumption

If an employer controls a corporation whose place of incorporation is a foreign country, any

practice that constitutes discrimination under this section and is engaged in by such

corporation shall be presumed to be engaged in by such employer.

(B) Exception

This section shall not apply with respect to the foreign operations of an employer that is a

foreign person not controlled by an American employer.

(C) Determination

For purposes of this paragraph, the determination of whether an employer controls a

corporation shall be based on

(i) the interrelation of operations;

(ii) the common management;

(iii) the centralized control of labor relations; and

(iv) the common ownership or financial control of the employer and the corporation.

(d) Medical examinations and inquiries

(1) In general

The prohibition against discrimination as referred to in subsection (a) of this section shall include

medical examinations and inquiries.

(2) Preemployment

(A) Prohibited examination or inquiry

Except as provided in paragraph (3), a covered entity shall not conduct a medical

examination or make inquiries of a job applicant as to whether such applicant is an

individual with a disability or as to the nature or severity of such disability.

(B) Acceptable inquiry

A covered entity may make preemployment inquiries into the ability of an applicant to

perform job-related functions.

(3) Employment entrance examination

A covered entity may require a medical examination after an offer of employment has been made

to a job applicant and prior to the commencement of the employment duties of such applicant,

and may condition an offer of employment on the results of such examination, if

47a

(A) all entering employees are subjected to such an examination regardless of disability;

(B) information obtained regarding the medical condition or history of the applicant is

collected and maintained on separate forms and in separate medical files and is treated as a

confidential medical record, except that

(i) supervisors and managers may be informed regarding necessary restrictions on the

work or duties of the employee and necessary accommodations;

(ii) first aid and safety personnel may be informed, when appropriate, if the disability

might require emergency treatment; and

(iii) government officials investigating compliance with this chapter shall be provided

relevant information on request; and

(C) the results of such examination are used only in accordance with this subchapter.

(4) Examination and inquiry

(A) Prohibited examinations and inquiries

A covered entity shall not require a medical examination and shall not make inquiries of an

employee as to whether such employee is an individual with a disability or as to the nature

or severity of the disability, unless such examination or inquiry is shown to be job-related

and consistent with business necessity.

(B) Acceptable examinations and inquiries

A covered entity may conduct voluntary medical examinations, including voluntary medical

histories, which are part of an employee health program available to employees at that work

site. A covered entity may make inquiries into the ability of an employee to perform jobrelated functions.

(C) Requirement

Information obtained under subparagraph (B) regarding the medical condition or history of

any employee are subject to the requirements of subparagraphs (B) and (C) of paragraph (3).

Sec. 12113. Defenses

(a) In general

It may be a defense to a charge of discrimination under this chapter that an alleged application of

qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise

deny a job or benefit to an individual with a disability has been shown to be job- related and consistent

with business necessity, and such performance cannot be accomplished by reasonable accommodation,

as required under this subchapter.

(b) Qualification standards

The term "qualification standards" may include a requirement that an individual shall not pose a direct

threat to the health or safety of other individuals in the workplace.

(c) Qualification standards and tests related to uncorrected vision

48a

Notwithstanding section 12102(4)(E)(ii), a covered entity shall not use qualification standards,

employment tests, or other selection criteria based on an individual's uncorrected vision unless

the standard, test, or other selection criteria, as used by the covered entity, is shown to be jobrelated for the position in question and consistent with business necessity.

(e d) Religious entities

(1) In general

This subchapter shall not prohibit a religious corporation, association, educational institution, or

society from giving preference in employment to individuals of a particular religion to perform

work connected with the carrying on by such corporation, association, educational institution, or

society of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicants and employees

conform to the religious tenets of such organization.

(ti e) List of infectious and communicable diseases

( 1) In general

The Secretary of Health and Human Services, not later than 6 months after July 26, 1990, shall

(A) review all infectious and communicable diseases which may be transmitted through

handling the food supply;

(B) publish a list of infectious and communicable diseases which are transmitted through

handling the food supply;

(C) publish the methods by which such diseases are transmitted; and

(D) widely disseminate such information regarding the list of diseases and their modes of

transmissibility to the general public.

Such list shall be updated annually.

(2) Applications

In any case in which an individual has an infectious or communicable disease that is transmitted

to others through the handling of food, that is included on the list developed by the Secretary of

Health and Human Services under paragraph ( 1), and which cannot be eliminated by reasonable

accommodation, a covered entity may refuse to assign or continue to assign such individual to a

job involving food handling.

(3) Construction

Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or

local law, ordinance, or regulation applicable to food handling which is designed to protect the

public health from individuals who pose a significant risk to the health or safety of others, which

cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or

communicable diseases and the modes of transmissibility published by the Secretary of Health

and Human Services.

Sec. 12114. Illegal use of drugs and alcohol

49a

(a) Qualified individual with a disability

For purposes of this subchapter, tlte teffil: "q_ttalified iH:dividttal with a disability" shall a qualified

individual with a disability shall not include any employee or applicant who is currently engaging in

the illegal use of drugs, when the covered entity acts on the basis of such use.

(b) Rules of construction

Nothing in subsection (a) of this section shall be construed to exclude as a qualified individual with a

disability an individual who

(1) has successfully completed a supervised drug rehabilitation program and is no longer

engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no

longer engaging in such use;

(2) is participating in a supervised rehabilitation program and is no longer engaging in such use;

or

(3) is erroneously regarded as engaging in such use, but is not engaging in such use;

except that it shall not be a violation of this chapter for a covered entity to adopt or administer

reasonable policies or procedures, including but not limited to drug testing, designed to ensure

that an individual described in paragraph (1) or (2) is no longer engaging in the illegal use of

drugs.

(c) Authority of covered entity

A covered entity

(1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;

(2) may require that employees shall not be under the influence of alcohol or be engaging in the

illegal use of drugs at the workplace;

(3) may require that employees behave in conformance with the requirements established under

the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq.);

(4) may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the

same qualification standards for employment or job performance and behavior that such entity

holds other employees, even if any unsatisfactory performance or behavior is related to the drug

use or alcoholism of such employee; and

(5) may, with respect to Federal regulations regarding alcohol and the illegal use of drugs, require

that

(A) employees comply with the standards established in such regulations of the Department

of Defense, if the employees of the covered entity are employed in an industry subject to

such regulations, including complying with regulations (if any) that apply to employment in

sensitive positions in such an industry, in the case of employees of the covered entity who

are employed in such positions ( as defined in the regulations of the Department of Defense);

(B) employees comply with the standards established in such regulations of the Nuclear

Regulatory Commission, if the employees of the covered entity are employed in an industry

subject to such regulations, including complying with regulations (if any) that apply to

employment in sensitive positions in such an industry, in the case of employees of the

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covered entity who are employed in such positions (as defined in the regulations of the

Nuclear Regulatory Commission); and

(C) employees comply with the standards established in such regulations of the Department

of Transportation, if the employees of the covered entity are employed in a transportation

industry subject to such regulations, including complying with such regulations (if any) that

apply to employment in sensitive positions in such an industry, in the case of employees of

the covered entity who are employed in such positions (as defined in the regulations of the

Department of Transportation).

(d) Drug testing

(1) In general

For purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered

a medical examination.

(2) Construction

Nothing in this subchapter shall be construed to encourage, prohibit, or authorize the conducting

of drug testing for the illegal use of drugs by job applicants or employees or making employment

decisions based on such test results.

(e) Transportation employees

Nothing in this subchapter shall be construed to encourage, prohibit, restrict, or authorize the

otherwise lawful exercise by entities subject to the jurisdiction of the Department of Transportation of

authority to

(1) test employees of such entities in, and applicants for, positions involving safety-sensitive

duties for the illegal use of drugs and for on-duty impairment by alcohol; and

(2) remove such persons who test positive for illegal use of drugs and on-duty impairment by

alcohol pursuant to paragraph (1) from safety-sensitive duties in implementing subsection (c) of

this section.

Sec. 12115. Posting notices

Every employer, employment agency, labor organization, or joint labor-management committee covered

under this subchapter shall post notices in an accessible format to applicants, employees, and members

describing the applicable provisions of this chapter, in the manner prescribed by section 2000e-10 of this

title.

Sec. 12116. Regulations

Not later than 1 year after July 26, 1990, the Commission shall issue regulations in an accessible format to

carry out this subchapter in accordance with subchapter II of chapter 5 of title 5.

Sec. 12117. Enforcement

(a) Powers, remedies, and procedures

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and

2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the

Commission, to the Attorney General, or to any person alleging discrimination on the basis of

51a

disability in violation of any provision of this chapter, or regulations promulgated under section 12116

of this title, concerning employment.

(b) Coordination

The agencies with enforcement authority for actions which allege employment discrimination under

this subchapter and under the Rehabilitation Act of 1973 [29 U.S.C. 701 et seq.] shall develop

procedures to ensure that administrative complaints filed under this subchapter and under the

Rehabilitation Act of 1973 are dealt with in a manner that avoids duplication of effort and prevents

imposition of inconsistent or conflicting standards for the same requirements under this subchapter and

the Rehabilitation Act of 1973. The Commission, the Attorney General, and the Office of Federal

Contract Compliance Programs shall establish such coordinating mechanisms (similar to provisions

contained in the joint regulations promulgated by the Commission and the Attorney General at part 42

of title 28 and part 1691 of title 29, Code of Federal Regulations, and the Memorandum of

Understanding between the Commission and the Office of Federal Contract Compliance Programs

dated January 16, 1981 (46 Fed. Reg. 7435, January 23, 1981)) in regulations implementing this

subchapter and Rehabilitation Act of 1973 not later than 18 months after July 26, 1990.

SUBCHAPTER II - PUBLIC SERVICES

Part A - Prohibition Against Discrimination and Other Generally Applicable Provisions

Sec. 12131. Definitions

As used in this subchapter:

(1) Public entity

The term "public entity" means

(A) any State or local government;

(B) any department, agency, special purpose district, or other instrumentality of a State or

States or local government; and

(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in

section 24102(4) of title 49).

(2) Qualified individual with a disability

The term "qualified individual with a disability" means an individual with a disability who, with

or without reasonable modifications to rules, policies, or practices, the removal of architectural,

communication, or transportation barriers, or the provision of auxiliary aids and services, meets

the essential eligibility requirements for the receipt of services or the participation in programs or

activities provided by a public entity.

Sec. 12132. Discrimination

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of services, programs, or activities of

a public entity, or be subjected to discrimination by any such entity.

Sec. 12133. Enforcement

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No. 19-1176

_________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________________________________

JACQUELINE HARRISON,

Plaintiff - Appellant,

v.

SOAVE ENTERPRISES, LLC, et al.,

Defendants - Appellees.

_________________________________________

On Appeal from the United States District Court

for the Eastern District of Michigan, No. 4:16-cv-14084-LVP-EAS

Hon. Linda V. Parker, United States District Judge

_________________________________________

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE IN SUPPORT OF

PLAINTIFF-APPELLANT

_________________________________________

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

Email: James.Tucker@EEOC.gov

Attorneys for amicus curiae

Equal Employment

Opportunity Commission

.

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APPENDIX F

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Table of Contents

Table of Authorities ..................................................................................iii

Statement of Interest ................................................................................ 1

Statement of the Issues ............................................................................. 2

Statement of the Case ............................................................................... 2

Statement of Facts........................................................................... 2

District Court Decision .................................................................... 9

Argument ................................................................................................. 11

I.

In evaluating whether Harrison had a disability within

the meaning of the ADA, the district court failed to apply

the correct standards for coverage under the amended

statute. ....................................................................................... 12

A. The district court erroneously relied on outdated,

pre-ADAAA precedent in concluding that Harrison

failed to adduce sufficient evidence of an

actual disability ................................................................... 15

B. The district court erred by holding that Harrison could

not satisfy the amended ADA’s regarded-as definition

of disability. ........................................................................ .21

II.

The ADA does not require “medical evidence” to establish

that an impairment substantially limits one or more major

life activities .............................................................................. 24

III.

The district court applied the correct legal standard in

determining that the Parts Galore and Soave Enterprises

were Harrison’s employer. ......................................................... 29

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Conclusion ............................................................................................... 31

Certificate of Compliance

Certificate of Service

Addendum

Designation of Relevant Documents ............................................ A1

ADA Amendments Act of 2008, Pub. L. No. 110-325,

122 Stat. 3553 (2008) .................................................................. A2

42 U.S.C. § 12101, Historical and Statutory Notes ..................... A9

42 U.S.C. § 12102 ....................................................................... A12

42 U.S.C. § 12205a ..................................................................... A14

29 C.F.R. § 1630.2....................................................................... A15

29 C.F.R. § 1630.9....................................................................... A21

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Table of Authorities

Cases

Page(s)

Bailey v. Real Time Staffing Servs., Inc.,

543 F. App’x 520 (6th Cir. 2013) ................................................... 11

Barlia v. MWI Veterinary Supply, Inc.,

721 F. App’x 439 (6th Cir. 2018) ....................................... 13, 17, 25

Baum v. Metro Restoration Servs., Inc.,

No. 18-5699, 2019 WL 1569741 (6th Cir. Apr. 11, 2019) ........ 23, 27

Black v. Roadway Express, Inc.,

297 F.3d 445 (6th Cir. 2002).............................................. 10 ,19, 20

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) ....................................................................... 14

Leader v. Venture Indus. Corp.,

No. 97-cv-76021, 1999 U.S. Dist. LEXIS 15947

(E.D. Mich. 1999) ..................................................................... 25, 28

Minnix v. City of Chillicothe,

No. 98-4285, 2000 U.S. App. LEXIS 2099 (6th Cir. 2000) ...... 25, 28

Neely v. Benchmark Family Servs.,

640 F. Appx. 429 (6th Cir. 2016) ................................. 22, 25, 27, 28

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Sanford v. Main St. Baptist Church Manor, Inc.,

449 F. App’x 488 (6th Cir. 2011) ................................................... 30

Summers v. Altarum Inst., Corp.,

740 F.3d 325 (4th Cir. 2014).......................................................... 14

Sutton v. United Air Lines, Inc.,

527 U.S. 471 (1999) ....................................................................... 21

Swallows v. Barnes & Noble Book Stores, Inc.,

128 F.3d 990 (6th Cir. 1997)................................................ 9, 29, 30

Talley v. Family Dollar Stores of Ohio, Inc.,

542 F.3d 1099 (6th Cir. 2008)............................................ 10, 21, 24

Toyota Motor Mfg., Ky., Inc. v. Williams,

534 U.S. 184 (2002) ....................................................................... 18

York v. Tenn. Crushed Stone Ass’n,

684 F.2d 360 (6th Cir. 1982).......................................................... 30

Statutes

42 U.S.C. §§ 12101 et seq........................................................................... 1

42 U.S.C. §§ 12101 note .................................................................. passim

42 U.S.C. § 12102(1)(A) ........................................................................... 12

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42 U.S.C. § 12102(1)(C) ........................................................................... 12

42 U.S.C. § 12102(2)(A) ........................................................................... 14

42 U.S.C. § 12102(2)(B) ..................................................................... 14, 15

42 U.S.C. § 12102(3)(A) ..................................................................... 14, 15

42 U.S.C. § 12102(3)(B) ........................................................................... 14

42 U.S.C. § 12102(4) ................................................................................ 14

42 U.S.C. § 12102(4)(A) ........................................................................... 13

42 U.S.C. § 12102(4)(B) .......................................................................... 16

42 U.S.C. § 12102(4)(E)(i)(I) .................................................................... 17

42 U.S.C. § 12102(4)(E)(i)(II) .................................................................. 17

42 U.S.C. § 12102(4)(E)(i)(III) ................................................................. 17

42 U.S.C. § 12205a .................................................................................. 14

ADA Amendments Act of 2008, Pub. L. No. 110-325,

122 Stat. 3553 (2008) ..................................................................... 11

- § 2(a)(4) ......................................................................................... 21

- § 2(b)(3) ......................................................................................... 22

- § 2(b)(6) ......................................................................................... 14

- § 4 ................................................................................................. 13

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Regulations

29 C.F.R. § 1630.2(h) ............................................................................... 26

29 C.F.R. § 1630.2(i)(1)(ii) ....................................................................... 15

29 C.F.R. § 1630.2(i)(2) ...................................................................... 13, 16

29 C.F.R. § 1630.2(j) ................................................................................ 18

29 C.F.R. § 1630.2(j)(1)(i) ........................................................................ 16

29 C.F.R. § 1630.2(j)(1)(ii) ................................................................. 17, 25

29 C.F.R. §§ 1630.2(j)(1)(iii) .................................................................... 13

29 C.F.R. § 1630.2(j)(1)(iv) ...................................................................... 17

29 C.F.R. § 1630.2(j)(1)(v) ........................................................... 17, 25, 27

29 C.F.R. § 1630.2(j)(1)(vi) ...................................................................... 17

29 C.F.R. § 1620.2(j)(2) ............................................................................ 22

29 C.F.R. § 1630.2(l)(1) ..................................................................... 22, 23

29 C.F.R. § 1630.9(e) ............................................................................... 22

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Statement of Interest

The Equal Employment Opportunity Commission is charged by

Congress with enforcing federal prohibitions on employment

discrimination, including the Americans with Disabilities Act of 1990,

42 U.S.C. §§ 12101 et seq. (“ADA”). The district court in this case ruled

that the plaintiff could not pursue an ADA termination claim because

she had not shown she met the definition of disability. In so ruling, the

court applied standards in effect before Congress’s 2008 amendments to

the ADA, which upended the prior standards for both the actual and

regard-as prongs of the disability definition. Because this ruling, if

upheld, would undermine the effective enforcement of the ADA, the

Commission respectfully offers its views to the Court. As a federal

agency, the EEOC is authorized to participate as amicus curiae in the

courts of appeals. Fed. R. App. P. 29(a)(2).

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Statement of the Issues

1. Whether the district court failed to apply the correct standards for

coverage under the amended ADA in holding that Harrison failed

to adduce sufficient evidence of an actual or regarded-as

disability.

2. Whether the ADA requires a plaintiff to adduce “medical

evidence” to establish that an impairment substantially limits one

or more major life activities.

3. Whether the district court applied the correct standard in

concluding that Soave Enterprises and Parts Galore were

Harrison’s employer for purposes of ADA liability because they

could be deemed an “integrated enterprise.”

Statement of the Case

A. Statement of Facts

The record on summary judgment, viewed in the light most

favorable to the plaintiff as nonmovant, reveals the following. In

December 2005, Jacqueline Harrison was hired by Ferrous Processing

and Trading Company to work at Parts Galore. Harrison deposition,

R.23-2 at 6, 26, 29, PageID#199, 219, 222. Both Ferrous Processing and

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Parts Galore are subsidiaries of Soave Enterprises, L.L.C. 1 Murell

deposition, R.23-4 at 42, PageID#468. Parts Galore maintains large

vehicle yards and allows customers to salvage parts from vehicles on a

self-service basis. Complaint, R.1 at 2, PageID#2. Harrison was a

manager, and reported directly to Bill Wild, the president of Parts

Galore. Complaint, R.1 at 2, PageID#2; Harrison deposition, R.23-2 at

29, PageID#222. Prior to her hire by Parts Galore, Harrison had

worked for Wild as a manager at Highway Auto Equipment, a company

that Ferrous Processing purchased from Wild in 2003 or 2004 and

which subsequently became Parts Galore. Harrison deposition, R.23-2

at 26, 30, PageID#219, 223.

From 2007 on, Harrison primarily worked at the Parts Galore

facility in West Warren, Michigan, but she also performed management

duties at other Parts Galore locations. Harrison deposition, R.23-2 at

33, PageID#226. Her job duties included overseeing the yard,

communicating with yard personnel about how many loads were going

to go out each day, communicating with the processing area and tow

1 For the sake of simplicity, we refer to the defendants collectively as

“Parts Galore.”

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truck drivers, and engaging in public outreach efforts. Harrison

deposition, R.23-2 at 31, 35, PageID#224, 228. Harrison would go out

into the yard to make sure that the facility’s processing area was

running properly. Harrison deposition, R.23-2 at 37, PageID#230.

Harrison was also responsible for monitoring the perimeter of the

facility to guard against theft. Harrison deposition, R.23-2 at 37-38,

PageID#230-31. The West Warren facility covered between twenty-five

and twenty-seven acres, and theft was a big problem. Harrison

deposition, R.23-2 at 37-38, PageID#230-31. Harrison would patrol the

perimeter two to three times a day, as well as when the facility opened

in the morning and closed in the evening. Harrison deposition, R.23-2

at 45-46, PageID#238-39. Claiming safety concerns, Wild had long

maintained an unwritten policy prohibiting female employees from

walking out into the yard. Harrison deposition, R.23-2 at 37,

PageID#230. Accordingly, prior to 2015, when Harrison would go out

into the yard she would do so in a John Deere Gator (a small utility

vehicle). Harrison deposition, R.23-2 at 37-38, 42-43, PageID#230-31,

235-36.

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In 2010, Harrison suffered an injury to her right knee, resulting in

a damaged meniscus and a torn ACL. Harrison deposition, R.23-2 at

17, 20-21, PageID#210, 213-14. While she underwent surgery to repair

the meniscus, she elected not to have the ACL repaired because doing

so would have required her to discontinue other medication she was

taking at the time. Harrison deposition, R.23-2 at 18, PageID#211. As

a result of the torn ACL, Harrison is unable to kneel on her right knee,

walk long distances, or walk over rocks, and she must use caution when

walking up an incline. Harrison deposition, R.23-2 at 22, PageID#215.

She is not otherwise limited by her knee. Harrison deposition, R.23-2 at

22, PageID#215. Harrison did not have any other physical limitations

that would adversely affect her ability to perform her job duties. 2

Harrison deposition, R.23-2 at 110, PageID#303.

In August 2014, Tony Murell became the Regional Manager for

Parts Galore. Harrison deposition, R.23-2 at 41, PageID#234. Wild

now reported to Murell; Harrison still reported to Wild. Harrison

Harrison asserted in her complaint that her “disabilities” are her torn

ACL and that she is “medically obese.” Complaint, R.1 at 3, PageID#3.

On summary judgment, however, Harrison made no argument that her

obesity constituted a disability under the ADA. See generally summary

judgment response, R.23, PageID#170-91.

2

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deposition, R.23-2 at 41, PageID#234. Beginning in early 2015, Murell

changed the policy regarding use of the one John Deere Gator at each

Parts Galore location. Harrison deposition, R.23-2 at 42-43,

PageID#235-36. Previously, the Gator had been reserved exclusively

for the manager’s use, but Murell instructed the yard employees to use

the Gator to perform various yard duties, which meant it was in

constant use and unavailable to Harrison. Id. In response, Harrison

began using her own personal vehicle in place of the Gator. Harrison

deposition, R.23-2 at 43, PageID#236.

Another of Harrison’s job duties was to spot-check cars to ensure

that the crew had processed them fully and properly; for example, she

would check whether they had removed the jack and the catalytic

converter. Harrison deposition, R.23-2 at 59-60, 110, PageID#252-53,

303. Murell instituted a policy requiring the manager at each facility to

perform a spot-check on five cars each day. Harrison deposition, R.23-2

at 101, PageID#294. However, Harrison testified, Murell told her that

she did not need to do this duty herself every day; some days another

employee could do it for her. Harrison deposition, R.23-2 at 101-02,

PageID#294-95. Accordingly, Harrison did the spot-checks three days a

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week, and the other employee did them the other two days. Harrison

deposition, R.23-2 at 102, PageID#295.

At some point, Harrison told Murell that the only job duty she

could not do was to kneel down and look underneath cars to ensure that

the catalytic converter had been removed. Harrison deposition, R.23-2

at 110, 129-30, PageID#303, 322-23. Harrison asked Murell if she could

purchase “a wheeled mirror like the state police use to inspect trucks”

to look under cars and confirm the catalytic converter had been

removed, and he agreed to the request. Harrison deposition, R.23-2 at

110, PageID#303, 322. Harrison never sought or required any other

accommodation from Parts Galore. Harrison deposition, R.23-2 at 149,

PageID#342.

Harrison testified that, on August 26, 2015, Murell told her

“they’ve decided that [her] employment is terminated because [she] can

no longer do [her] duties because [she] ha[s] a torn ACL.” Harrison

deposition, R.23-2 at 128, PageID#321. According to Harrison, when

she asked Murell, “what part of my job haven’t I done?,” he responded,

“you don’t go out and do the five car checklist.” Harrison deposition,

R.23-2 at 128-30, 146, PageID#321, 339. When Harrison reminded

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Murell that he had told her another employee could do some of the

checks, Murell denied ever saying that. Harrison deposition, R.23-2 at

130, PageID#323.

Harrison filed suit, alleging that Parts Galore failed to reasonably

accommodate her disability and that it terminated her because of her

disability. Complaint, R.1 at 6, PageID#6. She asserted that she was

covered under the ADA both based on her actual disability and because

Parts Galore regarded her as disabled. Complaint, R.1 at 6, PageID#6.

Parts Galore moved for summary judgment, arguing that because

Harrison had admitted that she was employed by Ferrous Processing

and Trading Company, Soave Enterprises and Parts Galore were not

her employers for purposes of ADA liability. Summary Judgment

Motion, R.22 at 15, PageID#80. Parts Galore also argued that Harrison

was not disabled within the meaning of the ADA and that she had

neither requested, nor been denied, reasonable accommodation.

Summary Judgment Motion, R.22 at 15-19, PageID#80-84. Parts

Galore further argued that Harrison’s claim failed because she did not

present “medical evidence” showing either that she had an impairment

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or that any such impairment substantially limited a major life activity.

Summary Judgment Reply, R.24 at 3-4, PageID#630-31.

B. District Court Decision

The district court granted summary judgment to Parts Galore.

Opinion and Order (“Order”), R.25 at 11, PageID#702. As an initial

matter, the court rejected Parts Galore’s argument that Harrison was

not its employee. Order, R.25 at 5-7, PageID#696-98. Relying on

Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 992-94 (6th

Cir. 1997), in which this Court described how multiple entities may be

considered a single employer for purposes of the ADA, the court

concluded that Harrison could be deemed an employee of Parts Galore

and Soave Enterprises. Order, R.25 at 5-7, PageID#696-98.

As for coverage under the ADA, the court recognized that

Harrison was only claiming one physical limitation—her inability to

kneel—and then rejected her argument that her knee impairment

constituted an actual disability. Order, R.25 at 8, PageID#699. The

court reached this conclusion based on its interpretation of Sixth Circuit

authority as holding that “‘no reasonable jury could find that [a] knee

injury substantially limits . . . any major life activity.’” Order, R.25 at 8,

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PageID#699 (quoting Black v. Roadway Express, Inc., 297 F.3d 445, 450

(6th Cir. 2002)) (alteration by district court). The court further

reasoned that “[a]s in Black, . . . Plaintiff’s alleged inability to perform

certain tasks or functions on a repeated or prolonged basis is not

enough, as a matter of law, for [her] to meet the threshold requirement

of proving that [she] is disabled.” Order, R.25 at 8, PageID#699

(quoting 297 F.3d at 451) (internal quotation marks omitted). The court

did not address Parts Galore’s argument that Harrison had failed to

present “medical evidence” in support of actual-disability coverage. See

Order, R.25 at 7-9, PageID#698-700.

The court next rejected Harrison’s argument that Parts Galore

regarded her as disabled. Order, R.25 at 8, PageID#699. Stating that

her regarded-as argument was supported solely by the fact that Parts

Galore provided her a mirror when she requested one, the court

concluded that this act did not “per se” establish that Parts Galore

regarded her as disabled. Order, R.25 at 8, PageID#699. The court

added that, as provided in Talley v. Family Dollar Stores of Ohio, Inc.,

542 F.3d 1099, 1106 (6th Cir. 2008), for Harrison to establish regardedas coverage she was required to show either that: “(1) Defendants

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mistakenly believed that she had an impairment limiting a major life

activity, or (2) Defendants mistakenly believed that an actual

impairment limited a major life activity.” Order, R.25 at 8 n.3,

PageID#699-700. Under this standard, the court concluded, while

Harrison was impaired by her torn ACL, Parts Galore was “neither

mistaken about this impairment nor believed it to limit a major life

activity.” Order, R.25 at 8 n.3, PageID#699-700. Therefore, the court

ruled, Harrison could not establish regarded-as coverage. Order, R.25

at 8 n.3, PageID#699-700.

Argument

I.

In evaluating whether Harrison had a disability within the

meaning of the ADA, the district court failed to apply the correct

standards for coverage under the amended statute.

In 2008, Congress amended the ADA to broaden the coverage

provided by the statute’s definition of “disability.” ADA Amendments

Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (“ADAAA”)

(attached at Addendum A2); see also, e.g., Bailey v. Real Time Staffing

Servs., Inc., 543 F. App’x 520, 523 (6th Cir. 2013) (same). Congress

concluded that courts were defining “disability” too narrowly and as a

result the ADA, as applied, was not achieving its purpose of protecting

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individuals with disabilities from discrimination. See generally 42

U.S.C. § 12101 note, Findings and Purposes, at § (a) (attached at

Addendum A10). Accordingly, Congress amended the statute “to carry

out the ADA’s objectives of providing ‘a clear and comprehensive

national mandate for the elimination of discrimination’ and ‘clear,

strong, consistent, enforceable standards addressing discrimination’ by

reinstating a broad scope of protection to be available under the ADA.”

42 U.S.C. § 12101 note, Findings and Purposes, at § (b)(1) (attached at

Addendum A11).

Post-amendment, the ADA continues to define “disability” to

include, in relevant part, “a physical or mental impairment that

substantially limits one or more major life activities of such individual”

and “being regarded as having such an impairment.” 42 U.S.C.

§§ 12102(1)(A) (“actual disability”), 12102(1)(C) (attached at Addendum

A12). However, Congress significantly altered the standards for each

type of coverage.

First, because “courts had previously too heavily focused their

inquiries on the question of coverage,” Congress specified that “the

question of whether an individual’s impairment is a disability under the

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[post-amendment] ADA should not demand extensive analysis.” 42

U.S.C. § 12101 note, Findings and Purposes, at § (b)(5) (attached at

Addendum A11); see also 29 C.F.R. § 1630.2(j)(1)(iii) (same) (attached at

Addendum A15). Instead, “the primary object of attention in cases

brought under the ADA should be whether entities covered under the

ADA have complied with their obligations.” 42 U.S.C. § 12101 note,

Findings and Purposes, at § (b)(5) (attached at Addendum A11); see also

29 C.F.R. § 1630.2(j)(1)(iii) (same) (attached at Addendum A17).

Second, because courts had “created an inappropriately high level

of limitation necessary to obtain coverage under the ADA,” Congress

specified that the definition of disability “shall be construed in favor of

broad coverage of individuals.” 42 U.S.C. § 12102(4)(A) (attached at

Addendum A13); see also 29 C.F.R. § 1630.2(i)(2) (new ADA coverage

standards are “not . . . demanding”) (attached at Addendum A16);

Barlia v. MWI Veterinary Supply, Inc., 721 F. App’x 439, 445 (6th Cir.

2018) (recognizing ADAAA meant to ensure broad coverage). To

achieve this goal, Congress redefined several key terms, including

“substantial limitation,” “major life activity,” and “being regarded as

having such an impairment.” See ADAAA § 4 (attached at Addendum

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A3-A5); 42 U.S.C. §§ 12102(2)(A)-(B), (3)(A)-(B), (4) (attached at

Addendum A12-A13); see also ADAAA at § 2(b)(6) (ordering EEOC to

revise its regulations accordingly) (attached at Addendum A3).3 These

new definitions greatly expand the scope of coverage provided by the

statute.

In this case, Harrison argues that she satisfies the ADA’s

definition of “disability” both because she has an impairment that

substantially limits a major life activity (§ 12102(1)(A)) and because

Parts Galore regarded her as having such an impairment

(§ 12102(1)(C)). In its coverage analysis, the district court made no

mention of the amended ADA’s coverage standards, instead relying on

the same outdated standards that Congress explicitly rejected with the

ADAAA. This was error.

In the ADAAA, Congress authorized the Commission to issue

regulations “implementing the definitions of disability in section 12102

of this title (including rules of construction).” 42 U.S.C. § 12205a

(attached at Addendum A14). See also Summers v. Altarum Inst.,

Corp., 740 F.3d 325, 331-33 (4th Cir. 2014) (affording deference under

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984),

to the Commission’s regulations on the revised definition of disability).

3

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A. The district court erroneously relied on outdated, pre-ADAAA

precedent in concluding that Harrison failed to adduce

sufficient evidence of an actual disability.

The district court concluded that Harrison could not establish

coverage under the first prong of the ADA’s definition of disability—

that she had “a physical or mental impairment that substantially limits

one or more major life activities of such individual.” Order, R.25 at 8,

PageID#699; see also 42 U.S.C. § 12102(1)(A) (attached at Addendum

A12). But the district court analyzed the question in a manner

inconsistent with the amended ADA, and relied on this Court’s decision

in Black, which predates and is likewise incompatible with that statute.

Under the proper standards, the evidence of Harrison’s medical

condition is sufficient to establish, for summary judgment purposes,

that her physical impairment satisfies the ADA’s definition of a

disability under § 12102(1)(A).

The amended statute now states that “a major life activity . . .

includes the operation of a major bodily function.” 42 U.S.C.

§ 12102(2)(B) (attached at Addendum A12). The revised regulations

define “major bodily function[s]” to include “musculoskeletal” functions.

29 C.F.R. § 1630.2(i)(1)(ii) (attached at Addendum A16). The

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regulations also explain that “[i]n determining other examples of major

life activities, the term ‘major’ shall not be interpreted strictly to create

a demanding standard for disability.” 29 C.F.R. § 1630.2(i)(2) (attached

at Addendum A16) (citing ADAAA § 2(b)(4) (Findings and Purposes)).

“Whether an activity is a ‘major life activity’ is not determined by

reference to whether it is of ‘central importance to daily life.’” Id.

The amended ADA also revised and relaxed the standards for

establishing whether an impairment constitutes a substantial

limitation, providing that the “substantially limits” requirement “shall

be interpreted consistently with the findings and purposes of the

[ADAAA].” 42 U.S.C. § 12102(4)(B) (attached at Addendum A13); see

also 29 C.F.R. § 1630.2(j)(1)(i) (phrase “substantially limits” is to be

“construed broadly in terms of extensive coverage”) (attached at

Addendum A17).

Accordingly, Congress provided in the amended ADA that “[t]he

determination of whether an impairment substantially limits a major

life activity shall be made without regard to the ameliorative effects of

mitigating measures” such as equipment, mobility devices, assistive

technology, reasonable accommodations or auxiliary aids or services. 42

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U.S.C. § 12102(4)(E)(i)(I), (II), (III) (attached at Addendum A13); see

also 29 C.F.R. § 1630.2(j)(1)(vi) (same) (attached at Addendum A17).

This was one of the principal concerns Congress had in its sights in

amending the ADA. See 42 U.S.C. § 12101 note, Findings and

Purposes, § (b)(2) (attached at Addendum A11).

The revised ADA regulations similarly provide that the term

“substantially limits” “shall be interpreted and applied to require a

degree of functional limitation that is lower than the standard for

‘substantially limits’ applied prior to the ADAAA.” 29 C.F.R.

§ 1630.2(j)(1)(iv) (attached at Addendum A17). Post-amendment, “[a]n

impairment need not prevent, or significantly or severely restrict, the

individual from performing a major life activity in order to be

considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii) (attached

at Addendum A17). In addition, “[t]he comparison of an individual’s

performance of a major life activity to the performance of the same

major life activity by most people in the general population usually will

not require scientific, medical, or statistical analysis.” 29 C.F.R.

§ 1630.2(j)(1)(v) (attached at Addendum A17); see also Barlia, 721 F.

App’x at 446 (same).

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In this case, as explained supra at p.5, Harrison presented

evidence that in 2010 she suffered an injury to her right knee, resulting

in a damaged meniscus and a torn ACL. Harrison deposition, R.23-2 at

17, 21-22, PageID#209, 213-14. Because she could not have her ACL

repaired, Harrison is unable to kneel on her right knee, walk long

distances, or walk over rocks, and she must use caution when walking

up an incline. Harrison deposition, R.23-2 at 22, PageID#215. Under

the amended ADA’s broadened standards for determining “major life

activity,” this evidence is sufficient to permit a reasonable fact-finder to

conclude that Harrison’s torn ACL qualifies as an impairment that

affects the major life activity of musculoskeletal function. This evidence

is also sufficient to satisfy the post-ADAAA relaxed standard for

“substantial limitation,” given that most people in the general

population are able to kneel, walk over rocks, and walk up inclines

without taking any particular caution. See 29 C.F.R. § 1630.2(j)

(discussing proper standard for assessing whether impairment

substantially limits a major life activity).

In holding otherwise, the district court made no mention of the

amended ADA. Instead, it relied exclusively on its own

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misinterpretation of this Court’s pre-ADAAA Black decision. Order,

R.25 at 8, PageID#699. In Black, this Court affirmed a grant of

summary judgment on the grounds that the plaintiff had failed to show

his knee injury substantially limited him in any major life activity. 297

F.3d at 448-51. But Black, which was decided in 2002, relied heavily on

pre-ADAAA standards for establishing “major life activity” and

“substantial limitation”—including the standard in Toyota Motor

Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that

Congress expressly rejected in the ADAAA. See id. at 449-51 & n.4-8

(citing authorities); 42 U.S.C. § 12101 note, Findings and Purposes, at

§ (b)(4)-(6) (including among purposes of ADAAA “to reject the

standards enunciated by the Supreme Court in Toyota Motor

Manufacturing” regarding the ADA’s requirements of substantial

limitation and major life activity, and to express Congress’ expectation

that the Commission will revise its regulations concerning substantial

limitation) (attached at Addendum A11). Accordingly, Black’s outdated

legal analysis has no bearing on whether Harrison presently may

demonstrate that she is disabled under the amended ADA.

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The district court further erred by interpreting Black as

announcing a categorical rule precluding ADA coverage for knee

impairments. According to the court, in Black this Court “previously

affirmed that, although a knee injury constitutes a physical

impairment, ‘no reasonable jury could find that [a] knee injury

substantially limits . . . any major activity.’” Order, R.25 at 8,

PageID#6699) (quoting Black, 297 F.3d at 450) (alteration by district

court). But the district court misquoted Black; the passage in question,

unaltered, actually states that “[t]he district court found that although

Black’s knee injury constitutes a physical impairment, no reasonable

jury could find that the knee injury substantially limits Black in any

major life activity.” Black, 297 F.3d at 450 (emphasis added). In other

words, the quoted portion of Black was simply a reiteration of the

district court’s conclusion about the facts of that particular case. It was

not a categorical announcement by this Court precluding knee-injurybased ADA actions.

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B.

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The district court erred by holding that Harrison could

not satisfy the amended ADA’s regarded-as definition

of disability.

Prior to the ADAAA, to establish coverage under the “regarded-as”

prong of the ADA’s definition of disability, a plaintiff was required to

show that “(1) a covered entity mistakenly believes that [she] has a

physical impairment that substantially limits one or more major life

activities, or (2) a covered entity mistakenly believes that an actual,

nonlimiting impairment substantially limits one or more major life

activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999);

see also Talley, 542 F.3d at 1106 (same). “In both cases, it is necessary

that a covered entity entertain misperceptions about the individual—it

must believe either that one has a substantially limiting impairment

that one does not have or that one has a substantially limiting

impairment when, in fact, the impairment is not so limiting.” Sutton,

527 U.S. at 489; see also Talley, 542 F.3d at 1106 (same).

With the ADAAA, however, Congress expressly rejected the

Sutton standard for regarded-as coverage. See ADAAA at §§ 2(a)(4)

(finding that “the holdings of the Supreme Court in [Sutton] and its

companion cases have narrowed the broad scope of protection intended

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to be offered by the ADA, thus eliminating protection for many

individuals whom Congress intended to protect”) (attached at

Addendum A2), 2(b)(3) (purpose of ADAAA included “reject[ing] the

Supreme Court’s reasoning in [Sutton] with regard to coverage under

the [regarded-as] prong of the definition of disability”) (attached at

Addendum A3).

Post-ADAAA, to establish regarded-as coverage a plaintiff need

only show that the employer took action against her because of an

actual or perceived impairment. The level of perceived limitation is

irrelevant. The definition for regarded-as coverage now provides that

“[a]n individual meets the requirement of ‘being regarded as having

such an impairment’ if the individual establishes that he or she has

been subjected to an action prohibited under this chapter because of an

actual or perceived physical or mental impairment whether or not the

impairment limits or is perceived to limit a major life activity.” 42

U.S.C. § 12102(3)(A) (emphasis added) (attached at Addendum A12); see

also 29 C.F.R. §§ 1620.2(j)(2) (same) (attached at Addendum A17),

1630.2(l)(1) (same) (attached at Addendum A20); Neely v. Benchmark

Family Servs., 640 F. App’x 429, 435 (6th Cir. 2016) (recognizing that

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the ADAAA “redefine[d] ‘regarded as having an impairment’ only to

require that a defendant took a prohibited action based on a perceived

impairment, regardless of whether the employer thought the

impairment was substantially limiting”).

Here, Harrison’s evidence squarely meets the correct regarded-as

standard. She testified that on August 26, 2015, Murell informed her

that he was firing her because, as a result of her ACL injury, she could

not perform all her job duties—specifically because she was not

performing the five-car spot-checks. Harrison Deposition, R.23-2 at

128, 146, PageID#321, 339. Viewed in the light most favorable to

Harrison, as required on summary judgment, this evidence establishes

that Parts Galore subjected her to an action prohibited under the ADA

because of her actual or perceived impairment. 4 See also Baum v. Metro

Restoration Servs., Inc., No. 18-5699, 2019 WL 1569741, at *3 (6th Cir.

4 Under the amended ADA, the regarded-as theory of coverage may

serve as a basis for Harrison’s unlawful termination claim but not her

failure-to-accommodate claim. See 29 C.F.R. §§ 1630.2(l)(1) (attached at

Addendum A20) (including termination as an action prohibited under

the regarded-as definition of disability), 1630.9(e) (attached at

Addendum A21) (“A covered entity . . . is not required to provide a

reasonable accommodation to an individual who meets the definition of

disability solely under the ‘regarded as’ prong (§ 1630.2(g)(1)(iii)).”).

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Apr. 11, 2019) (reversing summary judgment as to plaintiff’s ADA

regarded-as-disabled claim; plaintiff’s testimony that employer stated it

fired him because of his “health issues and doctor’s appointments” was

sufficient, if believed by the jury, to establish both coverage and

liability).

The district court reached the opposite conclusion by, again,

applying outdated standards the ADAAA rejected. See Order, R.25 at 8

n.3, PageID#699 (citing Talley, 542 F.3d at 1106, for the proposition

that, “[t]o prove that a plaintiff is regarded as disabled, she must either

show that: (1) Defendants mistakenly believed that she had an

impairment limiting a major life activity, or (2) Defendants mistakenly

believed that an actual impairment limited a major life activity”). In so

doing, the district court erred.

II.

The ADA does not require “medical evidence” to establish that an

impairment substantially limits one or more major life activities.

While the district court did not reach the issue in its summary

judgment ruling, Parts Galore argued that Harrison’s ADA claim

should be dismissed because she did not submit “medical evidence”

showing either that she has a torn ACL or that her condition

substantially limits a major life activity. Summary Judgment Reply,

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R.24 at 6, PageID#630 (citing Neely, 640 F. App’x at 433; Minnix v. City

of Chillicothe, No. 98-4285, 2000 U.S. App. LEXIS 2099 (6th Cir. 2000);

Leader v. Venture Indus. Corp., No. 97-cv-76021, 1999 U.S. Dist. LEXIS

15947 (E.D. Mich. 1999). Parts Galore is incorrect. Post-ADAAA,

establishing that an individual has an impairment, and that such

impairment substantially limits a major life activity, does not usually

require “medical evidence.”

The post-ADAAA regulations provide that “[a]n impairment is a

disability within the meaning of this section if it substantially limits the

ability of an individual to perform a major life activity as compared to

most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii)

(attached at Addendum A17). The regulations further clarify that for

purposes of determining whether an impairment substantially limits

the individual in a major life activity, “[t]he comparison of an

individual’s performance of a major life activity to the performance of

the same major life activity by most people in the general population

usually will not require scientific, medical, or statistical analysis.” 29

C.F.R. § 1630.2(j)(1)(v) (attached at Addendum A17) (emphasis added);

see also Barlia, 721 F. App’x at 446 (same). Parts Galore fails to

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acknowledge the effect of this ADA regulation on its contention that

Harrison was required to present “medical evidence” to establish

substantial limitation.

Nor does any “medical evidence” requirement attach to the burden

of showing that the individual has an impairment. In relevant part, the

ADA regulations define an “impairment” as “[a]ny physiological

disorder or condition, cosmetic disfigurement, or anatomical loss

affecting one or more body systems, such as . . . musculoskeletal.” 29

C.F.R. § 1630.2(h).

Neither the statute nor the regulations impose a heightened

evidentiary burden upon plaintiffs to provide specific “medical evidence”

of their impairment. This is consistent with the stated purpose of the

ADAAA to counteract courts’ overly strict interpretations of the ADA’s

coverage requirements, and to clarify that “the question of whether an

individual’s impairment is a disability under the [post-amendment]

ADA should not demand extensive analysis.” 42 U.S.C. § 12101 note,

Findings and Purposes, at § (b)(5) (attached at Addendum A11). A

heightened requirement of “medical evidence” to show an impairment

would contradict Congress’ express intent. It would also conflict with

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this Court’s recognition that a medical diagnosis is not categorically

necessary to establish an impairment in an ADA case.5 Neely, 640 F.

App’x at 435.

Parts Galore relied on Neely to support its assertion that “medical

evidence” is required, but that decision provides no such support. In

Neely, the plaintiff claimed to suffer from sleep apnea, but medical

testing had ruled out various physiological causes for his sleep problems

and did not yield a diagnosis of sleep apnea, and he had declined

further testing. Neely, 640 F. App’x at 433-34. It was against this

backdrop that this Court stated, “‘[w]hile a diagnosis might not be

absolutely necessary [to establish a record of impairment], in this

situation, some diagnosis must explain the duration or severity of the

In Baum, this Court reiterated that the amended ADA and its

implementing regulations “set a low bar for proving actual disability.”

No. 18-5699, 2019 WL 1569741, at *2 (6th Cir. Apr. 11, 2019); see also

id. (noting that “the substantial-limitation inquiry ‘usually will not

require scientific, medical, or statistical analysis’” (citing 29 C.F.R.

§ 1630.2(j)(1)(v))). This Court ruled that, due to the rarity and

complexity of the plaintiff’s heart condition and his medical records, an

expert witness was required to make that evidence understandable to a

jury. Id. at *2-*3. There is no suggestion in Baum that this Court

intended for the exception it permitted there to swallow the general rule

applicable to most ADA cases, including the common knee problems

Harrison experienced due to her torn ACL. See generally id.

5

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impairment.’ We therefore hold that Neely’s self-described symptoms to

his physicians, without corroborating medical evidence or any diagnosis

are insufficient to establish a substantial limitation on a major life

activity.” Id. at 435 (emphasis added, internal citation omitted).

Accordingly, Neely does not stand for the proposition that an ADA

plaintiff’s testimony about her condition is inadequate to establish

impairment or substantial limitation. This is particularly so in cases

like this one, where Harrison provided detailed deposition testimony

regarding the cause of her injury giving rise to her impairment; her

discussions with her physician regarding the injury and the possibility

of surgery to repair the injury; her physical rehabilitation; and the longterm limitations the impairment causes for her. See Harrison

deposition, R.23-2 at 17-22, PageID#210-15.

The other cases cited by Parts Galore are inapposite, as they

predate and have been superseded by the amended ADA, and otherwise

do not support Parts Galore’s assertion that medical evidence is

required to show an impairment. See Minnix, 205 F.3d 1341, 2000 WL

191828 (pre-ADAAA); Leader, 1999 U.S. Dist. LEXIS 15947 (preADAAA).

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The district court applied the correct legal standard in

determining that Parts Galore and Soave Enterprises

were Harrison’s employer.

Parts Galore argued on summary judgment—without any citation

to supporting authority—that Harrison could not establish that Parts

Galore or Soave Enterprises was her employer, as a matter of law,

based on her “admi[ssion]” that she was employed by Ferrous

Processing and Trading Company. Summary Judgment Motion, R.22 at

15, PageID#80. The district court rejected Parts Galore’s minimalist

argument, recognizing that “[a]lthough [Harrison] testified that

[Ferrous Processing and Trading Company] was her employer,

companies can be so intertwined that they constitute a single

employer.” Order, R.25 at 5, PageID#696.

The district court applied the correct legal standard to the

employer liability question presented, following Swallows v. Barnes &

Noble Book Stores, Inc., 128 F.3d 990, 992-94 (6th Cir. 1997). Order,

R.25 at 5-7, PageID#696-98. Swallows is controlling authority in this

circuit on the question of how courts should determine whether multiple

entities constitute a single, “integrated enterprise” for purposes of

liability as an employer under the ADA. In Swallows, this Court

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identified four factors courts should examine: “(1) interrelation of

operations, i.e., common offices, common record keeping, shared bank

accounts and equipment; (2) common management, common directors

and boards; (3) centralized control of labor relations and personnel; and

(4) common ownership and financial control.” 128 F.3d at 994 (citing

York v. Tenn. Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir. 1982)).

While “[n]one of these factors is conclusive, and all four need not be met

in every case,” “control over labor relations is a central concern.” Id.

(citations omitted); see also Sanford v. Main St. Baptist Church Manor,

Inc., 449 F. App’x 488, 493 n.5, 495 (6th Cir. 2011) (recognizing

Swallows as controlling authority on the question of “single employer”

or “integrated enterprise” employer liability—terms used

interchangeably for the same doctrine, which is “analytically distinct”

from the “joint employer” doctrine). The question of which entities were

named in Harrison’s contract has no bearing on any of the Swallows

integrated enterprise factors, which focus on the relationship between

corporate entities. See Swallows, 128 F.3d at 994.

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Conclusion

For the foregoing reasons, the EEOC respectfully requests that

this Court vacate the district court’s grant of summary judgment to the

defendants and remand the case for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

Attorneys for amicus curiae

Equal Employment

Opportunity Commission

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Certificate of Compliance

I hereby certify that the foregoing brief complies with the typevolume requirements set forth in Federal Rules of Appellate Procedure

29(a)(5) and 32(a)(7)(B), and Sixth Circuit Rule 32(b)(1). This brief

contains 5,677 words, from the Statement of Interest through the

Conclusion, as determined by the Microsoft Word 2016 word processing

program, with 14-point proportionally spaced type for text and 14-point

proportionally spaced type for footnotes.

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

Email: James.Tucker@EEOC.gov

Attorney for amicus curiae

Equal Employment

Opportunity Commission

.

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Certificate of Service

I hereby certify that on April 24, 2019, I electronically filed the

foregoing brief with the Clerk of the Court for the United States Court

of Appeals for the Sixth Circuit by using the Court’s CM/ECF system. I

certify that all participants in the case are registered CM/ECF users

and that service will be accomplished by the CM/ECF system.

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

Email: James.Tucker@EEOC.gov

Attorney for amicus curiae

Equal Employment

Opportunity Commission

.

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ADDENDUM

.

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Designation of Relevant Documents

Record Entry #

Description

Page ID #

R.1

Complaint

1-9

R.22

Summary Judgment motion

66-86

R.23

Summary Judgment response

170-192

R.23-2

Harrison deposition

194-370

R.23-4

Murell deposition

427-528

R.24

Summary Judgment reply

625-635

R.25

Opinion and Order

692-703

R.27

Notice of Appeal

706-707

.

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PL 110–325, 2008 S 3406

PL 110–325, September 25, 2008, 122 Stat 3553

Page 1

PL 110–325, September 25, 2008, 122 Stat 3553

UNITED STATES PUBLIC LAWS

110th Congress - Second Session

Convening January 04, 2008

Additions and Deletions are not identified in this database.

Vetoed provisions within tabular material are not displayed

PL 110–325 (S 3406)

September 25, 2008

ADA AMENDMENTS ACT OF 2008

An Act To restore the intent and protections of the Americans with Disabilities Act of 1990.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress

assembled,

<< 42 USCA § 12101 NOTE >>

SECTION 1. SHORT TITLE.

This Act may be cited as the “ADA Amendments Act of 2008”.

<< 42 USCA § 12101 NOTE >>

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.—Congress finds that—

(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act “provide a

clear and comprehensive national mandate for the elimination of discrimination against individuals with

disabilities” and provide broad coverage;

(2) in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a

person's right to fully participate in all aspects of society, but that people with physical or mental disabilities are

frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal

and institutional barriers;

(3) while Congress expected that the definition of disability under the ADA would be interpreted consistently

with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973,

that expectation has not been fulfilled;

(4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its

companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus

eliminating protection for many individuals whom Congress intended to protect;

(5) the holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184

(2002) further narrowed the broad scope of protection intended to be afforded by the ADA;

(6) as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

95a

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S 3406 19-1176

PL 110–325, September 25, 2008, 122 Stat 3553

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Page: 44

Page 2

with a range of substantially limiting impairments are not people with disabilities;

(7) in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,

534 U.S. 184 (2002), interpreted the term “substantially limits” to require a greater degree of limitation than was

intended by Congress; and

(8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the

term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing

too high a standard.

(b) PURPOSES.—The purposes of this Act are—

(1) to carry out the ADA's objectives of providing “a clear and comprehensive national mandate for the

elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination”

by reinstating a broad scope of protection to be available under the ADA;

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471

(1999) and its companion cases that whether an impairment substantially limits a major life activity is to be

determined with reference to the ameliorative effects of mitigating measures;

(3) to reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard

to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme

Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the

third prong of the definition of handicap under the Rehabilitation Act of 1973;

(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v.

Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under

the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to

be substantially limited in performing a major life activity under the ADA “an individual must have an

impairment that prevents or severely restricts the individual from doing activities that are of central importance

to most people's daily lives”;

(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor

Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Petition for Writ of Certiorari — Parts Galore L.L.C., et al., Petitioners v. Jacqueline Harrison | Frix