Opposition Brief — Board of County Commissioners of Weld County, Colorado, Petitioner v. Laurie Exby-Stolley

Supreme Court briefMay 26, 2021

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No. 20-1357

IN THE

BOARD OF COUNTY COMMISSIONERS, WELD COUNTY,

COLORADO,

Petitioner,

LAURIE EXBY-STOLLEY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Jason Wesoky

Counsel of Record

DARLING MILLIGAN, PC

1331 17th Street, Suite 800

Denver, CO 80202

(303) 623-9129

jwesoky@darlingmilligan.com

Counsel for Respondent

QUESTION PRESENTED

The question presented by petitioner Weld

County improperly assumes the validity of a doctrine

that has never been considered, let alone upheld, by

this Court. In litigation under various federal laws

outlawing employment discrimination, the lower

federal courts often have required a plaintiff alleging

disparate treatment to prove that she suffered a socalled “adverse employment action.” This doctrine

generally limits these laws’ disparate-treatment

coverage to claims alleging monetizable harm, such

as job loss or demotion, and excludes a wide range of

discriminatory employer conduct, such as employee

transfers or shift changes that do not result in

immediate monetary loss. An “adverse employment

action” requirement appears nowhere in the text of

these federal statutes (including in the Americans

with Disabilities Act), which ban discrimination,

without exception, in all “terms, conditions, and

privileges” of employment.

If this Court were to overlook this antecedent

issue and indulge the petition’s assumption that the

adverse-employment-action doctrine is valid, the

question presented in this case would be:

Whether an “adverse employment action” is an

element of a plaintiff’s failure-to-accommodate claim

under the Americans with Disabilities Act, which

prohibits discrimination “in regard to” a disabled

employee’s “terms, conditions, and privileges of

employment,” 42 U.S.C. § 12112(a), and requires an

employer to make “reasonable accommodations to the

known physical or mental limitations of an otherwise

qualified individual,” id. § 12112(b)(5)(A).

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

INTRODUCTION AND SUMMARY .......................... 1

STATEMENT OF THE CASE .................................... 3

Legal background ................................................ 3

II.

Factual background ............................................. 4

III. Procedural background ....................................... 7

REASONS FOR DENYING THE WRIT .................. 12

Review should be denied because the

petition improperly assumes an answer to a

critical predicate question that the petition

does not present. ................................................ 12

II. The petition presents a poor vehicle for review. . 16

III. The claimed circuit split does not exist. ........... 20

IV. A failure-to-accommodate claim divorced from

job loss or demotion is rare, rendering the

question presented unworthy of review. .......... 32

The Tenth Circuit’s ruling is correct. ............... 33

CONCLUSION .......................................................... 37

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Anne Arundel Cnty. Pub. Schs.,

789 F.3d 422 (4th Cir. 2015) ............................. 22

Aka v. Washington Hosp. Ctr.,

156 F.3d 1284 (D.C. Cir. 1998) (en banc) ... 29, 30

Allen v. Pacific Bell,

348 F.3d 1113 (9th Cir. 2003) ........................... 29

Ballard v. Rubin,

284 F.3d 957 (8th Cir. 2002) ............................. 27

Batson v. Salvation Army,

897 F.3d 1320 (11th Cir. 2018) ......................... 22

Brady v. Wal-Mart Stores, Inc.,

531 F.3d 127 (2d Cir. 2008)......................... 25, 26

Braunling v. Countrywide Home Loans Inc.,

220 F.3d 1154 (9th Cir. 2000) ........................... 29

Brumley v. United Parcel Serv., Inc.,

909 F.3d 834 (6th Cir. 2018) ............................. 22

Bultemeyer v. Fort Wayne Cmty. Schs.,

100 F.3d 1281 (7th Cir. 1996) ........................... 22

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006) ............................................. 14

Calero-Cerezo v. DOJ,

355 F.3d 6 (1st Cir. 2004) ................................. 24

Carroll v. Xerox Corp.,

294 F.3d 231 (1st Cir. 2002).............................. 23

Chambers v. District of Columbia,

988 F.3d 497 (D.C. Cir. 2021) (per

curiam), reh’g en banc granted (May 5,

2021) .................................................................. 15

Colón-Fontánez v. Mun. of San Juan,

660 F.3d 17 (1st Cir. 2011) ............................... 24

Colwell v. Rite Aid Corp.,

602 F.3d 495 (3d Cir. 2010)............................... 22

Curtis v. Costco Wholesale Corp.,

807 F.3d 215 (7th Cir. 2015) ............................. 22

D’Angelo v. ConAgra Foods, Inc.,

422 F.3d 1220 (11th Cir. 2005) ......................... 22

Dillard v. City of Austin,

837 F.3d 557 (5th Cir. 2016) ............................. 22

Duncan v. Washington Metropolitan Transit

Authority,

240 F.3d 1110 (D.C. Cir. 2001) (en banc) ......... 31

EEOC v. AutoZone, Inc.,

630 F.3d 635 (7th Cir. 2010) ............................. 22

EEOC v. Kohl’s Dep’t Stores, Inc.,

774 F.3d 127 (1st Cir. 2014).............................. 24

EEOC v. LHC Group, Inc.,

773 F.3d 688 (5th Cir. 2014) ............................. 22

EEOC v. UPS Supply Chain Solutions,

620 F.3d 1103 (9th Cir. 2010) ..................... 28, 29

Enica v. Principi,

544 F.3d 328 (1st Cir. 2008).............................. 24

Feist v. Louisiana, Dep’t of Just., Off. of the

Att’y Gen.,

730 F.3d 450 (5th Cir. 2013) ............................. 22

Fenney v. Dakota, Minn. & E. R.R. Co.,

327 F.3d 707 (8th Cir. 2003) ............................. 27

Gardea v. JBS USA, LLC,

915 F.3d 537 (8th Cir. 2019) ............................. 27

Garrison v. Dolgencorp, LLC,

939 F.3d 937 (8th Cir. 2019) ............................. 26

Graves v. Finch Pruyn,

457 F.3d 181 (2d Cir. 2006)............................... 25

Higgins v. New Balance Athletic Shoe, Inc.,

194 F.3d 252 (1st Cir. 1999)........................ 23, 24

Hill v. Assocs. for Renewal in Educ., Inc.,

897 F.3d 232 (D.C. Cir. 2018) ............... 29, 30, 31

Humphrey v. Mem’l Hosps. Ass’n,

239 F.3d 1128 (9th Cir. 2001) ........................... 28

Kammueller v. Loomis, Fargo & Co.,

383 F.3d 779 (8th Cir. 2004) ............................. 27

Kelleher v. Wal-Mart Stores, Inc.,

817 F.3d 624 (8th Cir. 2016) ............................. 27

Kiel v. Select Artificials, Inc.,

169 F.3d 1131 (8th Cir. 1999) ........................... 28

Kleiber v. Honda of Am. Mfg., Inc.,

485 F.3d 862 (6th Cir. 2007) ............................. 22

Lamar, Archer & Cofrin, LLP v. Appling,

138 S. Ct. 1752 (2018) ....................................... 35

Lang v. Wal-Mart Stores E., L.P.,

813 F.3d 447 (1st Cir. 2016).............................. 23

Langley v. Merck & Co.,

186 F. App’x 258 (3d Cir. 2006) ........................ 14

Los Angeles Dep’t of Water & Power v.

Manhart,

435 U.S. 702 (1978) ........................................... 13

Lucas v. W.W. Grainger, Inc.,

257 F.3d 1249 (11th Cir. 2001) ......................... 22

Lyons v. Legal Aid Soc.,

68 F.3d 1512 (2d Cir. 1995)............................... 26

Marshall v. Federal Express Corp.,

130 F.3d 1095 (D.C. Cir. 1997) ......................... 30

McBride v. BIC Consumer Prod. Mfg. Co.,

Inc.,

583 F.3d 92 (2d Cir. 2009)................................. 24

McCoy v. City of Shreveport,

492 F.3d 551 (5th Cir. 2007) ............................. 14

vii

Mickaelson v. Cummins, Inc.,

792 F. App’x 438 (9th Cir. 2019) ....................... 29

Minor v. Centocor, Inc.,

457 F.3d 632 (7th Cir. 2006) ............................. 15

Mitchell v. Washingtonville Cent. Sch. Dist.,

190 F.3d 1 (2d Cir. 1999) .................................. 25

Nahal v. Allina Health Sys.,

842 Fed. App’x 9 (8th Cir. 2021) ....................... 26

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ......................................... 35

Natofsky v. City of New York,

921 F.3d 337 (2d Cir. 2019)............................... 25

Noll v. Int’l Bus. Machines Corp.,

787 F.3d 89 (2d Cir. 2015)................................. 25

Office of the Architect of the Capitol v. Office

of Compliance,

361 F.3d 633 (Fed. Cir. 2004) ........................... 31

Office of Senate Sergeant at Arms v. Office of

Senate Fair Emp. Practices,

95 F.3d 1102 (Fed. Cir. 1996) ...................... 31-32

Parker v. Sony Pictures Ent., Inc.,

260 F.3d 100 (2d Cir. 2001)............................... 25

Peterson v. Linear Controls, Inc.,

140 S. Ct. 2841 (2020) (Mem.) .......................... 16

Piercy v. Maketa,

480 F.3d 1192 (10th Cir. 2007) ......................... 15

viii

Reagan-Diaz v. Whitaker,

748 F. App’x 353 (D.C. Cir. 2019) ..................... 31

Rhoads v. FDIC,

257 F.3d 373 (4th Cir. 2001) ............................. 22

Rocafort v. IBM Corp.,

334 F.3d 115 (1st Cir. 2003).............................. 23

Samper v. Providence St. Vincent Med. Ctr.,

675 F.3d 1233 (9th Cir. 2012) ........................... 29

Sepúlveda-Vargas v. Caribbean Rests., LLC,

888 F.3d 549 (1st Cir. 2018).............................. 24

Smith v. Ameritech,

129 F.3d 857 (6th Cir. 1997) ............................. 22

Snapp v. United Transp. Union,

889 F.3d 1088 (9th Cir. 2018) ........................... 28

Solomon v. Vilsack,

763 F.3d 1 (D.C. Cir. 2014) ............................... 31

Storey v. Burns Int’l Sec. Servs.,

390 F.3d 760 (3d Cir. 2004)............................... 14

Taylor v. Phoenixville Sch. Dist.,

184 F.3d 296 (3d. Cir. 1999).............................. 22

Thibeault v. Merit Sys. Prot. Bd.,

611 F. App’x 975 (Fed. Cir. 2015) ..................... 32

U.S. Airways, Inc. v. Barnett,

535 U.S. 391 (2002) ........................................... 36

United States v. Virginia,

518 U.S. 515 (1996) ........................................... 19

Va. Mil. Inst. v. United States,

508 U.S. 946 (1993) ............................... 18, 19, 20

Williams v. Phila. Hous. Auth. Police Dep’t,

380 F.3d 751 (3d Cir. 2004)............................... 22

Woolf v. Strada,

949 F.3d 89 (2d Cir. 2020)................................. 24

Statutes and Regulations

29 U.S.C. § 623(a)(1) .............................................. 12

42 U.S.C. § 2000e-2(a)(1) .................................... 4, 12

42 U.S.C. § 12101 ..................................................... 3

42 U.S.C. § 12102(1)(A) ...................................... 3, 36

42 U.S.C. § 12111(8) ................................................. 3

42 U.S.C. § 12111(9)(A) ............................................ 3

42 U.S.C. § 12111(9)(B) ............................................ 3

42 U.S.C. § 12112(a) .. i, 2, 3, 4, 10, 11, 12, 14, 33, 34

42 U.S.C. § 12112(b) ......................................... 10, 33

42 U.S.C. § 12112(b)(5)(A) ............... i, 2, 3, 30, 34, 35

29 C.F.R. pt. 1630 Appendix § 1630.9.................... 34

29 C.F.R. § 1630.2(o)(2)(i)......................................... 3

29 C.F.R. § 1630.2(o)(2)(ii) ....................................... 3

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

Other Authorities

Eleventh Circuit Pattern Jury Instructions

(Civil Cases) (Comm. on Pattern Jury

Instructions of the Eleventh Circuit

Judicial Council, rev. 2020................................ 21

Br. for United States as Amicus Curiae,

Peterson v. Linear Controls, Inc., No. 181401), 2020 WL 1433451 (Mar. 20, 2020) ........ 16

Fed. Civil Jury Instructions of the Seventh

Circuit (Comm. on Pattern Civil Jury

Instructions of the Seventh Circuit, rev.

2017) .................................................................. 20

Pattern Jury Instructions (Civil Cases) for

the Fifth Circuit (Comm. on Civil Pattern

Jury Instructions Fifth Circuit District

Judges Ass’n 2020) ............................................ 20

Manual of Model Civil Jury Instructions for

the Dist. Courts of the Eighth Circuit

(Comm. on Model Jury Instructions for

the Dist. Courts of the Eighth Circuit

2020) .................................................................. 20

Manual of Model Civil Jury Instructions for

the Dist. Courts of the Ninth Circuit

(Ninth Circuit Jury Instructions Comm.,

updated 2021) .................................................... 20

Model Civil Jury Instructions for the Dist.

Courts of the Third Circuit (Comm. on

Model Civil Jury Instructions within the

Third Circuit, updated 2019) ............................ 20

Stephen M. Shapiro, et al., Supreme Court

Practice (10th ed. 2013)..................................... 18

Webster’s Third Dictionary (1961)......................... 13

INTRODUCTION AND SUMMARY

Petitioner Weld County asks this Court to

“clarify the elements” of a failure-to-accommodate

claim under the Americans with Disabilities Act

(ADA). Pet. 3. But, in reality, the County asks the

Court to add a new requirement to the claim—that a

plaintiff prove she suffered an “adverse employment

action”—even though neither those words nor the

meaning they have acquired in other employmentdiscrimination contexts appear anywhere in the

ADA’s text. The Court should decline that invitation

because the County’s petition meets none of the

traditional criteria for review.

First, the County’s question presented is not

properly reviewable because it presupposes an

affirmative answer to a crucial, logically antecedent

question: whether the adverse-employment-action

doctrine is valid. If the answer to that question is

no—and it likely is—then the question presented

would be meaningless. That the petition artificially

separates the contrived question presented here from

the antecedent question renders it unworthy of

review. Moreover, as explained below, this Court is

likely to soon address the antecedent question. It

would be highly irregular to grant review on a

question that depends on a doctrine that may soon be

nullified.

Second, this case is a poor vehicle for review

because the Tenth Circuit’s remand authorizes the

district court to reconsider respondent Laurie ExbyStolley’s constructive-discharge claim. Pet. App. 7a

n.1. If Exby-Stolley proves constructive discharge on

remand, the question presented would be moot

because a constructive discharge is an “adverse

employment action” as defined by lower courts,

making Exby-Stolley’s failure-to-accommodate claim

indisputably actionable. That serious impediment to

review underscores a broader barrier: the nonfinality of the Tenth Circuit’s decision, which renders

review of this case premature.

Third, despite the County’s contrary assertion,

no genuine split exists in the courts of appeals. No

circuit has expressly confronted the question

presented and then held that an “adverse

employment action” is an element of an ADA failureto-accommodate claim, the position advanced here by

the County. If there were such a decision, the County

surely would have directed this Court’s attention to

it—and the County has not.

Fourth, ADA failure-to-accommodate claims that

do not also involve claims of job loss or demotion are

rare. Therefore, the vast majority of failure-toaccommodate cases involve what the County itself

views as an adverse employment action, so

answering the question presented would affect only a

small number of cases, making the question

presented unworthy of review.

Finally, the Tenth Circuit’s decision is correct.

The ADA imposes on employers an affirmative duty

to make reasonable workplace accommodations when

an employee with a disability requests one unless

accommodation would impose an undue hardship. 42

U.S.C. § 12112(b)(5)(A). Any failure to fulfill that

duty is an actionable violation. A reasonable

accommodation concerning one’s work is, by

definition, an accommodation regarding the “terms,

conditions, and privileges of employment,” which is

all that the statute requires. See id. § 12112(a). The

County’s demand that the employee must suffer an

additional “adverse employment action” has no

foothold in the statutory text, and the Tenth Circuit

properly rejected it.

Review should be denied.

STATEMENT OF THE CASE

Legal background

A. The Americans with Disabilities Act seeks to

end discrimination against people with disabilities in

all walks of life, including in employment. See 42

U.S.C. § 12101. It prohibits discrimination “against a

qualified individual on the basis of disability in

regard to” hiring, compensation, discharge, and

“other terms, conditions, and privileges of

employment.” Id. § 12112(a). A disability is “a

physical or mental impairment that substantially

limits one or more of [an individual’s] major life

activities.” Id. § 12102(1)(A). An individual is

“qualified” if she can perform the “essential

functions” of the job with or without “reasonable

accommodation[s],” id. § 12111(8), including making

workspaces more accessible, restructuring schedules,

or providing different equipment, id. § 12111(9)(A)(B); 29 C.F.R. § 1630.2(o)(2)(i)-(ii).

When an employee seeks a workplace

accommodation, the employee and the employer are

expected to work together in an “interactive process”

to find a suitable accommodation. 29 C.F.R.

§ 1630.2(o)(3). An employer’s failure to make

“reasonable accommodations” for a person with a

disability

violates

the

ADA

unless

the

accommodation “would impose an undue hardship”

on the employer. 42 U.S.C. § 12112(b)(5)(A).

B. The phrase “terms, conditions, and privileges

of employment” in the ADA mirrors nearly identical

language in the ban on employment discrimination

in Title VII of the Civil Rights Act of 1964. Pet. 5; see

42 U.S.C. § 2000e-2(a)(1). In “disparate treatment”

suits under Title VII, the lower federal courts have

often held that, to state a claim for relief, an

employee must suffer what they call an “adverse

employment action.” As discussed below (at 14-15),

this adverse-employment-action doctrine allows a

significant amount of discriminatory conduct to

escape redress and defies the statutory text, which

simply prohibits “discriminat[ing] against an

individual with respect to his … terms, conditions, or

privileges of employment.” 42 U.S.C. § 2000e-2(a)(1)

(Title VII); see 42 U.S.C. § 12112(a) (ADA).

Regardless of the validity of the adverseemployment-action doctrine in the disparatetreatment context, no circuit has squarely held that

an ADA failure-to-accommodate plaintiff must prove

an adverse employment action. See infra at 20-32.

II. Factual background

Respondent Laurie Exby-Stolley was a dedicated

employee of petitioner Weld County for the better

part of two decades. Tenth Circuit Appendix

(CA10App.) 879, 882-83. As a health inspector, she

put her master’s degree in environmental policy to

good use, inspecting restaurants, bars, and other

institutions to ensure their safety. Pet. App. 141a;

CA10App. 879. She tested safety practices,

interviewed workers, and reported her results. Pet.

App. 141a. She enjoyed her work, and she was good

at it. CA10App. 23, 888.

Exby-Stolley fell at work while helping at a

vaccine clinic in 2009, suffering serious injuries to

her dominant right arm, wrist, and elbow. Pet. App.

141a; CA10App. 890. At first, her injuries were not

properly diagnosed or treated. CA10App. 890-93. She

continued to work with some restrictions, but her

injury and a later reinjury restricted her movement

and caused her constant pain. Id. at 891-93. Two

surgeries did not alleviate the pain or restore full

hand and arm function. Pet. App. 141a; CA10App.

893. She developed workarounds—what she called

“[her] own … accommodations”—so she could

complete her work with as little pain as possible, like

assembling a fanny pack with jar openers and levers.

CA10App. 894-96. Because she was learning to work

with her non-dominant hand, she worked at a slower

pace, and, because her work took longer, she could

not complete the number of inspections generally

expected of health inspectors. Pet. App. 141a;

CA10App. 889.

While Exby-Stolley was undergoing treatment,

the County temporarily changed her duties to follow

her workers’ compensation physician’s restrictions.

Pet. App. 141a-142a. Despite clarifying to her

supervisors that she “ha[d] never said any of these

tasks were impossible for [her] to carry out,”

CA10App. 479, Exby-Stolley was assigned part-time

desk work that involved paperwork, phoning food

vendors, and reviewing plans for body art parlors,

food retail shops, and swimming pools instead of

conducting inspections in the community. Id. at 482,

914. She was unhappy with her changed role. Id. at

915; Pet. App. 142a. She believed she “still could do

the job,” CA10App. 888, and she “was hoping to

continue” doing it. Id. at 911.

Exby-Stolley was eventually evaluated for

permanent restrictions, and her physician found that

she had a “43% impairment of the right upper

extremity.” Def.’s Mot. Summ. J., Ex. A. at 0579. She

asked the County for workplace accommodations,

explaining that she could perform all but the rarest

of tasks with her fanny pack of tools if she were only

given more time to perform them, CA10App. 897,

909-10, 928, and help on the rare occasion that she

had to lift something heavy, id. at 887, 933; Pet. App.

142a. But her supervisors rejected her suggested

accommodations, such as providing her with tools to

lift objects, assigning her to projects that she could

complete with her disability, or just some extra time,

see CA10App. 23-24, 928, 909-10, and they did not

offer alternatives, Pet App. 142a. One supervisor

even suggested that she leave work and accept fulltime disability. Id.

Finally, Exby-Stolley’s second-level supervisor

asked if she wanted him to write her letter of

resignation or if she would do it herself. Pet. App.

142a; CA10App. 929. She was incredulous: “I give my

right arm to Weld County, and this is what I get.”

CA10App. 928. Given this ultimatum, she resigned,

in what Exby-Stolley maintains was a constructive

discharge. Pet. App. 143a; see infra at 7-8. 1

1 We recognize that the County maintains that ExbyStolley was not constructively discharged. See Pet. App. 144a145a. The jury was barred from considering Exby-Stolley’s

constructive-discharge claim, but under the Tenth Circuit’s en

III.

Procedural background

A.1. Exby-Stolley sued, alleging that Weld

County had violated the ADA by failing to

accommodate her disability or engage in the

interactive process and then terminating her when

she could not perform all her job duties. Pet. App.

145a-146a.

Exby-Stolley

sought

reinstatement

with

reasonable accommodations, front and back pay, and

compensatory damages, including for emotional

distress and mental anguish. CA10App. 24-25; see

Pet. App. 195a. She maintained that she had

proposed—but the County did not provide—various

reasonable accommodations so that she could

continue to work. CA10App. 23-24. Exby-Stolley

emphasized that she could not find new employment

and was suffering anxiety after losing her job. Id. at

24.

Exby-Stolley further alleged that “the County

fired her on the sole basis that her restrictions did

not meet the listed physical requirements of her

health inspector position.” CA10App. 23. She

maintained in the pretrial order that, despite her

repeated requests, “[n]o accommodation was offered

as an alternative” to resignation and that the

County’s actions were “tantamount to her

termination.” Id. at 317. The County’s own records

listed the reason for her separation as a termination

banc decision, the district court is authorized to consider it

anew on remand, Pet. App. 7a n.1, which presents a serious

barrier to this Court’s review, see infra at 16-18.

for health reasons. Pl.’s Response to Summ. J., Ex.

23. Nonetheless, before trial, the district court

refused to allow Exby-Stolley to pursue her

constructive-discharge claim on the ground that she

had not sufficiently alleged it. CA10 App. 705, 749.

2. The case went to trial. After the close of

evidence, the district court instructed the jury on

what it viewed as the elements of an ADA failure-toaccommodate claim, including that the plaintiff

prove by a preponderance of the evidence that she (1)

had a “disability,” (2) was a “qualified individual,”

and (3) was “discharged from employment or suffered

another adverse employment action.” Pet. App. 146a.

The jury was also instructed concerning causation,

the undue-hardship defense, and damages. Id. at

146a n.1.

The jury instructions defined an “adverse

employment action” as “a significant change in

employment status, such [as] a hiring, firing, failing

to promote, reassignment with significantly different

responsibilities, or a decision causing a significant

change in benefits.” Pet. App. 206a-207a.

The jury found Exby-Stolley had proved that she

had a disability and was a qualified individual. Pet.

App. 194a. The jury did not find, however, that she

had “suffered another adverse employment action,”

id., and so did not answer the remaining

interrogatories, id. at 195a. Judgment was entered

for the County. Id. at 196a.

B. Exby-Stolley appealed to the Tenth Circuit,

arguing that an “adverse employment action” is not

an element of an ADA failure-to-accommodate claim.

Pet. App. 140a. She also argued that the district

court should have allowed her to submit her

constructive-discharge claim to the jury and erred in

not clearly placing the burden of proof for the unduehardship defense on the County. Id.; see CA10App.

448.

A divided panel of the Tenth Circuit affirmed,

holding that a plaintiff must not only establish a

failure to accommodate but must also prove an

“adverse employment action.” Pet. App. 140a.

Though the panel majority acknowledged that

“adverse employment action” does not appear in the

ADA’s text, id. at 148a, it reasoned that the phrase is

appropriate shorthand for an employment decision

that affects the “terms, conditions, and privileges” of

one’s employment, id. at 153a. It observed that,

generally, to prove an adverse employment action, an

employee must be terminated or have her pay or

benefits reduced. See id. at 173a-174a (providing

examples). Therefore, Exby-Stolley’s claim failed. Id.

at 175a.

The panel majority also held that Exby-Stolley

could not pursue her constructive-discharge claim.

Pet. App. 176a. Because her amended complaint

alleged only that the County’s ADA violations

“culminated” in her termination, the panel held that

she had not properly alleged constructive discharge.

Id. at 176a, 177a.

Judge Holmes dissented, rejecting the majority’s

view that an ADA failure-to-accommodate claim

includes an adverse-employment-action element. Pet.

App. 178a.

C. The Tenth Circuit granted Exby-Stolley’s

petition for rehearing en banc and reversed.

The en banc majority explained that 42 U.S.C. §

12112(a), which provides the ADA’s general ban on

employment discrimination “in regard to” an

employee’s “terms, conditions, and privileges” of

employment, and 42 U.S.C. § 12112(b), which lists

examples of discrimination, are “inextricably

intertwined.” Pet. App. 57a. Claims authorized by

Section 12112(b), including a failure-to-accommodate

claim, therefore “necessarily implicate” Section

12112(a)’s “terms, conditions, and privileges of

employment.” Id. at 58a. For that reason, the

majority held, a failure-to-accommodate plaintiff

need not make an additional showing that she

suffered a so-called adverse employment action. Id.

at 60a. Holding otherwise “would effectively involve

adding language to the relevant statutory text that

has no footing there.” Id. at 62a. The majority also

emphasized that no other circuit regularly demands

that a failure-to-accommodate plaintiff prove an

adverse employment action. Id. at 37a.

The majority stressed that an employer’s duty to

reasonably accommodate an employee with a

disability is an affirmative obligation on employers,

Pet. App. 17a, so it is “hard to imagine” that an

employer breaches that obligation only when the

employee shows that the employer took additional

action that affected the employee’s pay or benefits or

led to some other monetizable injury, id. at 18a. If

that were required, qualified individuals with

disabilities could not, as the ADA envisions, access

the same employment opportunities as individuals

without disabilities. Id. at 27a.

Because the jury had based its verdict on a

faulty instruction demanding proof of an adverse

employment action, the en banc court reversed and

remanded for a new trial. Pet. App. 73a. In addition,

because the question of undue hardship would likely

recur in the new trial, the court clarified that undue

hardship is an affirmative defense for which the

County has the burden of proof. Id. at 76a. The

majority decided not to address whether the district

court erred in refusing to instruct the jury on

constructive discharge or to allow Exby-Stolley to

discuss constructive discharge in closing argument

because “[t]he district court could address those

matters on remand.” Id. at 7a n.1.

Judge McHugh dissented on behalf of herself

and five others. Pet. App. 76a. She reasoned that an

employer violates 42 U.S.C. § 12112(a) when it

discriminates against a qualified individual on the

basis of disability and when the discrimination is “in

regard to” the “terms, conditions, and privileges of

employment.” Pet. App. 78a. For that reason, she

maintained, a plaintiff must also show “employmentrelated consequences” from the employer’s failure to

accommodate, such as disciplinary action or

termination. See id. at 119a, 121a-122a.

The dissenters nonetheless questioned the

validity of the adverse-employment-action doctrine

itself. Judge McHugh noted that the doctrine has

become “divorced” from the statutory text in both the

Title VII and ADA contexts, Pet. App. 118a, but

maintained that the error did not prejudice ExbyStolley, id. at 124a. In a separate dissent, Judge

Hartz expressed the same concern: that caselaw may

have “too narrowly circumscribed what constitutes

an adverse employment action.” Id. at 128a. Because

the issue was not raised before the panel, however,

he believed the en banc court should not opine on it.

Id.

D. On remand in the district court, the case was

assigned to a new judge, who set a new trial date,

but that date was vacated pending resolution of this

petition. Dist. Ct. Dkt. 253, 257, 259.

REASONS FOR DENYING THE WRIT

The petition should be denied because it

improperly assumes an answer to a question that the

petition does not pose and because it satisfies none of

the traditional criteria for review.

Review should be denied because the

petition improperly assumes an answer to a

critical predicate question that the petition

does not present.

This Court should not grant review before

answering the predicate question whether the

atextual adverse-employment-action doctrine is valid

in a case, unlike this one, that properly poses that

question. If the doctrine is invalid—and it likely is—

then the question presented here need never be

answered.

A. The question presented is whether an ADA

reasonable-accommodation plaintiff must prove what

the lower courts have called an “adverse employment

action.” This doctrine has arisen under statutes that

ban disparate-treatment discrimination in hiring,

firing, compensation, and other “terms, conditions, or

privileges” of employment. See, e.g., 42 U.S.C.

§ 2000e-2(a)(1) (Title VII); 29 U.S.C. § 623(a)(1) (Age

Discrimination in Employment Act); 42 U.S.C.

§ 12112(a) (ADA).

Beyond hiring, firing, and compensation, the

statutory phrase “terms, conditions, or privileges”

refers to all other attributes of the employeremployee relationship with respect to which an

employer may not discriminate. “Terms” are

“propositions, limitations, or provisions stated or

offered for the acceptance of another and

determining (as in a contract) the nature and scope

of the agreement.” Terms, Webster’s Third

Dictionary 2358 (1961). A “condition” is “something

established or agreed upon as a requisite to the doing

or taking effect of something else.” Condition,

Webster’s Third Dictionary 473 (1961). “Privilege”

means to enjoy “a peculiar right, immunity,

prerogative, or other benefit.” Privilege, Webster’s

Third Dictionary 1805 (1961). 2

Each of these words is defined broadly, together

referring to “the entire spectrum of disparate

treatment”—the gamut of workplace requirements,

obligations, customs, and benefits that an employer

imposes on, or grants to, an employee. Los Angeles

Dep’t of Water & Power v. Manhart, 435 U.S. 702,

707 n.13 (1978) (citation omitted).

These anti-discrimination statutes, then, are not

limited to injuries that employers or courts view as

particularly harmful. Rather, the statutes establish

no minimum level of actionable harm. “[T]erms,

conditions, or privileges” of employment are all those

workplace attributes that “affect employment or

2 This brief cites to Webster’s Third because it was

published contemporaneously with enactment of Title VII, from

which the adverse-employment-action doctrine arose.

alter the conditions of the workplace.” Burlington N.

& Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006).

Thus, an employer who denies an employee’s request

for an ADA workplace accommodation has, by

definition, denied an accommodation “in regard to”

hiring, discharge, compensation, or “other terms,

conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). This is true (of course) of Exby-Stolley,

for whom the County denied work-related

accommodations, such as modifying her job’s

physical requirements and providing tools so she

could meet them. See CA10App. 23-24.

B. Yet, many lower federal courts have engrafted

onto the Nation’s antidiscrimination statutes an

“adverse employment action” requirement wholly

divorced from the statutory text. For example, the

Third Circuit asks whether the discrimination is

“serious and tangible enough to alter an employee’s

compensation, terms, conditions, or privileges of

employment.” Storey v. Burns Int’l Sec. Servs., 390

F.3d 760, 764 (3d Cir. 2004) (quotation marks

omitted). “[L]ateral transfers” that involve changes

to “title, office, reporting relationship and

responsibilities” are “generally insufficient” to alter

terms, conditions, or privileges of employment and so

may not be remedied. Langley v. Merck & Co., 186 F.

App’x 258, 260 (3d Cir. 2006). In the Fifth Circuit, an

“adverse employment action” is only an “ultimate

employment decision”—a refusal to hire, a firing, a

demotion, or the like. McCoy v. City of Shreveport,

492 F.3d 551, 559, 560 (5th Cir. 2007). And in the

Tenth Circuit, there must be “a significant change in

employment status, such [as] a hiring, firing, failing

to promote, reassignment with significantly different

responsibilities, or a decision causing a significant

change in benefits.” Pet. App. 206a-207a (jury

instruction below); see Piercy v. Maketa, 480 F.3d

1192, 1203-04 (10th Cir. 2007).

C. This Court has never addressed, let alone

blessed, this atextual doctrine. See Minor v.

Centocor, Inc., 457 F.3d 632, 634 (7th Cir. 2006)

(Easterbrook, J.) (“[H]undreds if not thousands of

decisions” have reflexively held “that an ‘adverse

employment action’ is essential to the plaintiff’s

prima facie case,” even though this Court “has never

adopted it as a legal requirement.”). Yet the petition

assumes its validity. The County’s question

presented thus accepts the adverse-employmentaction doctrine as a proper interpretation of the

simple statutory phrase “terms, conditions, and

privileges” outside of the ADA reasonableaccommodation context and then blithely asks

whether that doctrine applies in ADA reasonableaccommodation cases. See Pet. i.

D. The impropriety of reviewing the question

presented without answering the predicate question

is underscored by the fact that the adverseemployment-action doctrine is almost certainly

invalid. The doctrine has drawn considerable

criticism because, as indicated, it is at odds with the

text of the laws it purports to interpret. See Minor,

457 F.3d at 634; see also, e.g., Chambers v. District of

Columbia, 988 F.3d 497, 503 (D.C. Cir. 2021) (per

curiam) (Tatel & Ginsburg, J.J., concurring), reh’g en

banc granted (May 5, 2021). Indeed, even the

dissenters below seriously questioned the doctrine.

See Pet. App. 118a, 128a.

This Court was recently asked to overturn the

doctrine in Peterson v. Linear Controls, Inc., No. 181401, and called for the views of the United States,

140 S. Ct. 387 (2019) (Mem.). The Solicitor General

explained that interpreting “terms, conditions, or

privileges” to cover only “‘significant and material’

employment actions” is “atextual and mistaken” and

recommended a grant of certiorari. Br. for United

States as Amicus Curiae at 6, Peterson v. Linear

Controls, Inc., No. 18-1401, 2020 WL 1433451 (Mar.

20, 2020). Though Peterson apparently settled, see Jt.

Mot. to Defer Consideration of Pet. for a Writ of

Cert., No. 18-1401 (May 28, 2020), and the petition

was dismissed, Peterson v. Linear Controls, Inc., 140

S. Ct. 2841 (2020) (Mem.), it is likely that this Court

will soon have the opportunity to decide whether the

adverse-employment-action

doctrine

valid.

Meanwhile, the Court should not grant review of a

petition that improperly assumes its validity.

II. The petition presents a poor vehicle for

review.

This case presents a poor vehicle for review for

two related reasons. First, the key fact on which the

question presented depends—that Exby-Stolley did

not properly plead constructive discharge and thus

cannot have suffered an adverse employment

action—is subject to further review and possible

revision under the express terms of the Tenth

Circuit’s remand. Second, the case’s lack of finality

renders this Court’s review premature.

A. Exby-Stolley maintains that, after the County

failed to accommodate her disability, she left her job

after being told that she would be fired if she did not

resign. As noted above (at 8), the district court did

not allow this constructive-discharge claim to go to

the jury on the ground that it had not been

adequately developed. Exby-Stolley disagreed,

maintaining that she forthrightly pleaded and

vigorously pursued that claim, see supra at 7-8, and

that the County was well aware of the claim

throughout the pre-trial proceedings. She sought

reversal of the trial court’s ruling at both stages of

Tenth Circuit review. See Exby-Stolley CA10 En

Banc Opening Supp. Br. 19-22; Exby-Stolley CA10

Panel Opening Br. 36-43.

After holding that an ADA failure-toaccommodate plaintiff need not prove an adverse

employment action, the en banc Tenth Circuit

remanded for a new trial, at which the jury

instructions would be revised to comport with the

court’s rulings. Pet. App. 73a, 76a. The court

expressly noted that it would not address “whether

the district court erred in refusing to either allow her

to instruct the jury on a claim of constructive

discharge or to argue constructive discharge in

closing argument. The district court may address

those matters on remand.” Pet. App. 7a n.1 (emphasis

added). The petition stresses the district court’s

initial treatment of the constructive-discharge claim,

Pet. 31, but ignores the terms of the Tenth Circuit’s

remand on that claim.

But that passage is critical. If, on remand, the

district court allows Exby-Stolley’s constructivedischarge claim to proceed, or simply allows her to

argue to the jury that her constructive-discharge

flowed from the County’s failure to accommodate, the

question presented would likely fall out of the case

because the County agrees, as it must, that

discharge is an “adverse employment action.” See

Pet. 31. Thus, if the Tenth Circuit’s remand is

allowed to run its course, this Court’s intervention

would likely be unnecessary even if the County’s

view that a failure-to-accommodate plaintiff must

prove an “adverse employment action” were

indulged. This case is therefore a particularly poor

candidate for review, and the petition should be

denied for this reason alone.

B. That the district court may revive ExbyStolley’s constructive-discharge claim on remand

underscores a broader impediment to review: the

non-finality of the Tenth Circuit’s judgment.

Although this Court sometimes grants review of

petitions from interlocutory court of appeals rulings,

“[o]rdinarily, this Court should not issue a writ of

certiorari to review a decree of the circuit court of

appeals on appeal from an interlocutory order, unless

necessary

prevent

extraordinary

inconvenience and embarrassment in the conduct of

the cause.” Stephen M. Shapiro, et al., Supreme

Court Practice § 4.I.18, at 282 (10th ed. 2013)

(quotation marks omitted) (citing cases); see also Va.

Mil. Inst. v. United States, 508 U.S. 946, 946 (1993)

(VMI) (opinion of Scalia, J., respecting the denial of

certiorari) (“We generally await final judgment in the

lower courts before exercising our certiorari

jurisdiction.”).

The posture of this case is anything but

extraordinary, and the decision below is the

antithesis of final. The court of appeals sent the case

back to the district court to conduct a new trial that

has yet to begin. At that trial, the County will

maintain all its defenses, including that its

accommodations (if any) were reasonable and that

the accommodations sought by Exby-Stolley would

have imposed an undue burden. See Pet. App. 202a204a, 206a.

The Tenth Circuit’s ruling is thus a less

appropriate vehicle for immediate review than was

the VMI case, where this Court denied review from

an interlocutory court of appeals’ ruling. There, the

Fourth Circuit had issued a final decision holding

that Virginia’s sponsorship of a military college for

men only was unconstitutional, but the district court

had not yet ruled on the appropriate remedy. This

Court denied certiorari, apparently on the ground

that the decision was not sufficiently final because

the remedy phase was ongoing. See VMI, 508 U.S. at

946 (opinion of Scalia, J., respecting the denial of

certiorari). The Court recognized that there would be

time to review the decision, if necessary, after a

remedy was issued, see id., and, in fact, it later did

so. See United States v. Virginia, 518 U.S. 515

(1996). Here, by contrast, there is no decision

regarding the County’s liability, let alone the

appropriate remedy.

Exby-Stolley believes she will prevail on

remand, and, if she does, the County may appeal

from the final decision and ultimately petition this

Court on the nonfinal question on which it now seeks

premature review (and on any other properly

preserved federal issue). See VMI, 508 U.S. at 946

(opinion of Scalia, J., respecting the denial of

certiorari) (citing cases). And if the County prevails

on remand, it will have achieved its goal in the

litigation without this Court’s intervention.

Moreover, unlike VMI, which was idiosyncratic,

if the County is correct here that the issue presented

is likely to recur, Pet. 23-24, any number of

appropriate future vehicles would allow this Court to

resolve the issue. But see infra at 32-33 (explaining

that the question presented rarely arises). In the

meantime, the Court should stay its hand and allow

the litigation to run its course.

III. The claimed circuit split does not exist.

The majority of circuits have made clear that an

ADA failure-to-accommodate plaintiff need not prove

an “adverse employment action,” and, as the en banc

majority correctly observed, “none of our sister

circuits has regularly incorporated an adverseemployment-action requirement into an ADA failure

to accommodate claim,” Pet. App. 37a.

Critically, all six circuits that have issued model

jury instructions for an ADA failure-to-accommodate

claim list its elements and do not include an adverseemployment-action element. 3 See Pet. App. 41a-42a

3 See Model Civil Jury Instructions for the Dist. Courts of

the Third Circuit § 9.1.3, at 18 (Comm. on Model Civil Jury

Instructions within the Third Circuit, updated 2019); Pattern

Jury Instructions (Civil Cases) for the Fifth Circuit § 11.10, at

200-01 (Comm. on Civil Pattern Jury Instructions Fifth Circuit

District Judges Ass’n 2020); Fed. Civil Jury Instructions of the

Seventh Circuit § 4.03, at 89 (Comm. on Pattern Civil Jury

Instructions of the Seventh Circuit, rev. 2017); Manual of

Model Civil Jury Instructions for the Dist. Courts of the Eighth

Circuit § 9.42, at 9-28 (Comm. on Model Jury Instructions for

the Dist. Courts of the Eighth Circuit 2020); Manual of Model

Civil Jury Instructions for the Dist. Courts of the Ninth Circuit §

12.7, at 292-93 (Ninth Circuit Jury Instructions Comm.,

nn.10 & 11, 43a-44a, 46a-47a, 50a. The County

asserts that these instructions do not necessarily

establish circuit precedent, Pet. 20, 22, but that

misses the point. These model instructions show

that, in the real world, juries considering ADA

failure-to-accommodate cases are not told that they

must find an “adverse employment action,” and,

tellingly, absent the decision below, the County has

not pointed to a single case in which a jury was

instructed that it was required to do so.

We now review each circuit’s case law, respond

to the County’s claim of a circuit split, and show that

no split exists.

updated 2021); Eleventh Circuit Pattern Jury Instructions (Civil

Cases) § 4.12, at 1 (Comm. on Pattern Jury Instructions of the

Eleventh Circuit Judicial Council, rev. 2020).

Third, Fourth, Fifth, Sixth, Seventh, Tenth,

and

Eleventh

Circuits.

the

County

acknowledges, Pet. 13-16, the Fourth, Fifth, Sixth, 6

Seventh, 7 Tenth, 8 and Eleventh 9 Circuits do not

require a failure-to-accommodate plaintiff to prove

an adverse employment action. Similarly, as the

County recognizes, Pet. 16, the Third Circuit equates

any failure to accommodate with an adverse

employment action. 10

4 See Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d

422, 432 (4th Cir. 2015); Rhoads v. FDIC, 257 F.3d 373, 387

n.11 (4th Cir. 2001).

5 See Dillard v. City of Austin, 837 F.3d 557, 562 (5th Cir.

2016); EEOC v. LHC Group, Inc., 773 F.3d 688, 703 n.6 (5th

Cir. 2014); Feist v. Louisiana, Dep’t of Just., Off. of the Att’y

Gen., 730 F.3d 450, 452 (5th Cir. 2013).

6 See Brumley v. United Parcel Serv., Inc., 909 F.3d 834,

839 (6th Cir. 2018); Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d

862, 868 n.2 (6th Cir. 2007); Smith v. Ameritech, 129 F.3d 857,

866 (6th Cir. 1997).

7 See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 224

(7th Cir. 2015); EEOC v. AutoZone, Inc., 630 F.3d 635, 638 n.1

(7th Cir. 2010); Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d

1281, 1283 (7th Cir. 1996).

8 See Pet. App. 10a.

9 See Batson v. Salvation Army, 897 F.3d 1320, 1326 (11th

Cir. 2018); D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220,

1225-1226 (11th Cir. 2005); Lucas v. W.W. Grainger, Inc., 257

F.3d 1249, 1255 (11th Cir. 2001).

10 See Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir.

2010); Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751,

761 (3d Cir. 2004); Taylor v. Phoenixville Sch. Dist., 184 F.3d

296, 306 (3d. Cir. 1999).

First Circuit. Contrary to the petition’s

assertion (at 17-18, 25), the First Circuit, also does

not require a failure-to-accommodate plaintiff to

prove an adverse employment action. In Carroll v.

Xerox Corp., 294 F.3d 231, 237-38 (1st Cir. 2002), the

court explained that, in contrast to a disparatetreatment claim, a reasonable-accommodation claim

does not require an adverse employment action.

As its model jury instructions indicate, see supra

note 3, the First Circuit has set out the prima facie

case with no mention of an adverse-employmentaction element, explaining that a failure-toaccommodate plaintiff must show only that “(a) she

is disabled within the ADA’s definition; that (b) she

could perform the job’s essential functions either

with or without a reasonable accommodation; and

that (c) the employer knew of her disability, yet

failed to reasonably accommodate it.” Lang v. WalMart Stores E., L.P., 813 F.3d 447, 454 (1st Cir.

2016) (citing Rocafort v. IBM Corp., 334 F.3d 115,

119 (1st Cir. 2003)).

And in Higgins v. New Balance Athletic Shoe,

Inc., 194 F.3d 252, 264 (1st Cir. 1999), the First

Circuit explained that “an employer who knows of a

disability

yet

fails

make

reasonable

accommodations violates the statute, no matter what

its intent, unless it can show that the proposed

accommodations would create undue hardship for its

business.” Though it went on to note that a plaintiff

must show that the failure to accommodate “affected

the terms, conditions, or privileges” of employment,

id., the court neither equated that phrase with an

“adverse employment action” nor discussed the need

for one in its failure-to-accommodate analysis, see id.

at 264-65.

The County’s reliance (at 18) on a decade-old

dictum in Colón-Fontánez v. Municipality of San

Juan, 660 F.3d 17 (1st Cir. 2011), is misplaced.

There, the First Circuit appears to have conflated in

passing the elements of a failure-to-accommodate

claim and a disparate-treatment claim, but the court

did not discuss the adverse-employment-action

element because the plaintiff failed to establish that

she was a “qualified individual” with a disability. Id.

at 32. That the First Circuit does not require proof of

an adverse employment action is underscored by a

raft of its failure-to-accommodate decisions making

no mention of an adverse-employment-action

element. 11

Second Circuit. The Second Circuit also does

not require proof of an adverse employment action in

failure-to-accommodate claims. See, e.g., Woolf v.

Strada, 949 F.3d 89, 93 (2d Cir. 2020); McBride v.

BIC Consumer Prod. Mfg. Co., Inc., 583 F.3d 92, 9697 (2d Cir. 2009).

The County asserts that the Second Circuit “has

repeatedly

held” that an ADA failure-toSee, e.g., Sepúlveda-Vargas v. Caribbean Rests., LLC,

888 F.3d 549, 553 (1st Cir. 2018); EEOC v. Kohl’s Dep’t Stores,

Inc., 774 F.3d 127, 131-32 (1st Cir. 2014); see also Enica v.

Principi, 544 F.3d 328, 338 (1st Cir. 2008) (not requiring an

adverse employment action in a failure-to-accommodate claim

under the Rehabilitation Act, which has the same standards as

the ADA); Calero-Cerezo v. DOJ, 355 F.3d 6, 19, 20 (1st Cir.

2004) (same).

accommodate

claim

requires

“adverse

employment action.” Pet. 18. But the two cases cited

by the County do nothing of the sort. Neither

decision addressed whether the plaintiff had

properly stated a failure-to-accommodate claim;

rather, both suits failed because the plaintiff had not

shown that the alleged failure to accommodate

caused the plaintiff’s injury—injuries (discharge and

demotion) that no one could dispute are “adverse

employment actions.” See Parker v. Sony Pictures

Ent., Inc., 260 F.3d 100, 108 (2d Cir. 2001) (no

causation shown for alleged discriminatory

discharge); Natofsky v. City of New York, 921 F.3d

337, 352-53 (2d Cir. 2019) (no causation shown

between failure to accommodate, plaintiff’s negative

performance

reviews,

and

his

allegedly

discriminatory demotion). Indeed, when Natofsky set

out the elements of what it called the “prima facie

case of discrimination based on an employer’s failure

to accommodate a disability,” it nowhere mentioned

an adverse-employment-action element. Id. at 352.

Not surprisingly, when actually analyzing

failure-to-accommodate claims, the Second Circuit

has not referred to an adverse-employment-action

requirement. See e.g., Noll v. Int’l Bus. Machines

Corp., 787 F.3d 89, 94 (2d Cir. 2015); Graves v. Finch

Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006);

Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d

1, 6 (2d Cir. 1999).

The County suggests that the Second Circuit has

omitted mention of a supposed adverse-employmentaction requirement only when “it was obviously

satisfied.” Pet. 19. That is not accurate. For instance,

in Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d

Cir. 2008), the harm to the plaintiff was transfer to a

more menial position, id. at 134, yet the Court

discussed the adverse-employment-action element

only in its discrimination analysis, not in its failureto-accommodate analysis, id. at 134-36. And, in

Lyons v. Legal Aid Society, 68 F.3d 1512, 1515, 1517

(2d Cir. 1995), the court held that the plaintiff—a

current employee with physical impairments seeking

a parking space near her office—had stated a failureto-accommodate claim, without any discussion of

whether the plaintiff had suffered an adverse

employment action. See also id. at 1515 (setting out

the elements of the claim, with no mention of

adverse-employment-action element).

Eighth Circuit. The Eighth Circuit has not

regularly incorporated an adverse-employmentaction element into a failure-to-accommodate claim.

See, e.g., Nahal v. Allina Health Sys., 842 Fed. App’x

9, 10 (8th Cir. 2021).

Consistent with its model jury instructions, see

supra note 3, that court recently set out the prima

facie

failure-to-accommodate

case

without

mentioning an adverse-employment-action element.

See Garrison v. Dolgencorp, LLC, 939 F.3d 937, 942

(8th Cir. 2019). In contrast, the plaintiff in that case

could not prevail on her retaliation claims because

“[f]or these claims, [she] would need to prove that

[the defendant] took an adverse employment action

against her.” Id. at 942.

The petition asserts (at 18-19) that the Eighth

Circuit has “consistently” required an adverse

employment action, but none of the decisions it cites

turned on that issue, let alone expressly ruled that

an adverse employment action is a necessary

component of a failure-to-accommodate claim. One

plaintiff could not show he was a qualified individual

with a disability so “his claim fail[ed] on that basis,”

Gardea v. JBS USA, LLC, 915 F.3d 537, 543 (8th

Cir. 2019), and another survived summary judgment

on whether he satisfied the adverse-employmentaction element, so the court did not need to address if

the element itself was required, see Fenney v.

Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717-18

(8th Cir. 2003). Another decision specifically noted

that it was treating the plaintiff’s disabilitydiscrimination claim and her failure-to-accommodate

claim as a single claim because both the district

court and the plaintiff had treated them that way.

See Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624,

631 n.4 (8th Cir. 2016). And the County’s last case,

Kammueller v. Loomis, Fargo & Co., 383 F.3d 779,

784 (8th Cir. 2004), is doubly inapposite because it

arose under state law, id. at 781 n.1, and the

plaintiff was fired, id. at 788, making the claim

actionable whether an adverse-employment-action

element was required or not.

The County tellingly acknowledges (at 20-21)

that recent Eighth Circuit decisions describe the

prima facie failure-to-accommodate case without an

adverse-employment-action element but asserts that

earlier decisions mentioning the element trump

under the “prior panel rule.” That argument fails on

its own terms, however, because other decisions predating those cited by the County do not mention an

adverse-employment-action requirement in their

reasonable-accommodation

analyses

and

describing the prima facie case. See Ballard v.

Rubin, 284 F.3d 957, 960 (8th Cir. 2002)

(Rehabilitation Act case); Kiel v. Select Artificials,

Inc., 169 F.3d 1131, 1136-37 (8th Cir. 1999).

Ninth Circuit. The Ninth Circuit also has not

regularly viewed an “adverse employment action” as

an element of a failure-to-accommodate claim. See,

e.g., Snapp v. United Transp. Union, 889 F.3d 1088,

1095 (9th Cir. 2018); Humphrey v. Mem’l Hosps.

Ass’n, 239 F.3d 1128, 1133, 1139 (9th Cir. 2001).

The County is simply wrong that EEOC v. UPS

Supply Chain Solutions, 620 F.3d 1103 (9th Cir.

2010), suggests that an “adverse employment action”

is required. See Pet. 21. The court there explained

that the “benefits and privileges” of employment

encompass everything other employees enjoy, such

as “understanding and participating in mandatory

departmental meetings,” 620 F.3d at 1111, or job

trainings, id. at 1113. A failure-to-accommodate

analysis, then, “focuses on whether, in regard to the

privileges of [the employee’s] employment, [the

employer] provided reasonable accommodations to

[the employee’s] known physical limitations.” Id. at

1110. The plaintiff there was still employed, and,

ultimately, the Court allowed the failure-toaccommodate claim to proceed past summary

judgment with no discussion of an adverseemployment-action element. Id. at 1114.

Though some Ninth Circuit opinions do mention

that element in failure-to-accommodate cases, the

court has explained that a failure-to-accommodate

analysis is often similar to the analysis for other

ADA claims because “the consequence of the failure

to accommodate is … frequently unlawful

termination.” Humphrey, 239 F.3d at 1139. The

petition lists Ninth Circuit decisions that simply

mention an adverse-employment-action element in

the prima facie case, but in all of them, the plaintiff

suffered an obvious adverse action, and in all but

one, the plaintiff’s claim also failed on other grounds.

The issue was therefore not directly presented or

outcome-determinative in any of the cases. 12

When the Ninth Circuit has addressed head-on

what the ADA’s accommodation requirement means,

it has been clear that the duty exists in all cases.

Employers must “provide modifications that enable

an employee to enjoy equal benefits and privileges of

employment as other employees.” EEOC, 620 F.3d at

1111 (quotation marks omitted). This understanding

dovetails with that court’s model jury instructions,

which do not include an adverse-employment-action

element. See supra note 3.

D.C. Circuit. The D.C. Circuit does not require

a failure-to-accommodate plaintiff to show an

adverse employment action. See Aka v. Washington

See Braunling v. Countrywide Home Loans Inc., 220

F.3d 1154, 1156, 1157 (9th Cir. 2000) (plaintiff was fired but

could not show that she was qualified); Allen v. Pacific Bell, 348

F.3d 1113, 1115 (9th Cir. 2003) (plaintiff was fired but could not

show that his former employer had failed to engage in the

interactive process); Samper v. Providence St. Vincent Med.

Ctr., 675 F.3d 1233, 1236, 1237 (9th Cir. 2012) (plaintiff was

fired but could not prove that she was able to perform the

essential functions of the position). In Mickaelson v. Cummins,

Inc., 792 F. App’x 438, 440 (9th Cir. 2019), the court devoted

just one sentence to the reasonable-accommodation analysis,

suggesting a need for an “adverse employment action” but

rejecting the plaintiff’s claim because his firing was not causally

related to his disability.

Hosp. Ctr., 156 F.3d 1284, 1300 (D.C. Cir. 1998) (en

banc); Hill v. Assocs. for Renewal in Educ., Inc., 897

F.3d 232, 237 (D.C. Cir. 2018). That court has

explained simply that “it is discriminatory for a

covered employer to decline to take reasonable steps

to accommodate an employee’s disability, unless the

steps in question ‘would impose an undue hardship

on the operation of the business’ of the employer.”

Aka, 156 F.3d at 1300 (quoting 42 U.S.C. §

12112(b)(5)(A)).

The County (at 16) mischaracterizes D.C. Circuit

precedent by building its argument around a decision

predating that court’s en banc ruling in Aka, 156

F.3d 1284. Though Marshall v. Federal Express

Corp., 130 F.3d 1095 (D.C. Cir. 1997), explained that

a failure-to-accommodate claim must be “in regard to

some adverse personnel decision or other term or

condition of employment,” it also made clear that “if

working conditions inflict pain or hardship on a

disabled employee, the employer fails to modify the

conditions upon the employee’s demand, and the

employee simply bears the conditions, this could

amount to a denial of reasonable accommodation,

despite there being no … adverse personnel action.”

Id. at 1099. The D.C. Circuit recently elaborated on

Marshall, explaining that a “reasonable jury could

conclude that forcing [the plaintiff] to work with pain

when pain could be alleviated by his requested

accommodation violates the ADA.” Hill, 897 F.3d at

239.

Further, Marshall did not purport to set out the

prima facie case for ADA failure-to-accommodate

claims, and, in other decisions, the D.C. Circuit has

done so without mentioning an adverse-employment-

action element. See Hill, 897 F.3d at 237. And the

circuit’s recent decisions under the Rehabilitation

Act, the elements of which track the ADA’s, also do

not mention an adverse-employment-action element

when describing the prima facie case. See ReaganDiaz v. Whitaker, 748 F. App’x 353, 354 (D.C. Cir.

2019); Solomon v. Vilsack, 763 F.3d 1, 5, 9 (D.C. Cir.

2014).

The County’s description of Duncan v.

Washington Metropolitan Transit Authority, 240

F.3d 1110, 1114 (D.C. Cir. 2001) (en banc), is

misleading. See Pet. 16-17. The plaintiff there

alleged two separate claims: that his employer

violated the ADA by not accommodating his

disability and by firing him. Id. at 1113. The court

did not distinguish between the two claims, stating

only that “an ADA plaintiff must prove that” he was

disabled, qualified and that he suffered an adverse

action. Id. at 1114. Moreover, the plaintiff’s claim

failed because he had not shown he had a disability,

so the passing reference to an adverse-employmentaction element was not outcome-determinative. Id.

Federal Circuit. The petition’s last cited case

(at 23) merely notes without analysis that a “plaintiff

claiming a violation of the ADA” must show four

elements, including an “adverse employment action.”

Office of the Architect of the Capitol v. Office of

Compliance, 361 F.3d 633, 639 (Fed. Cir. 2004). But

other decisions explain that a “qualified individual

with a disability is thus entitled to a reasonable

accommodation, absent any statutory qualification

that may limit the employer’s duty to provide such

an accommodation.” Office of Senate Sergeant at

Arms v. Office of Senate Fair Emp. Practices, 95 F.3d

1102, 1107 (Fed. Cir. 1996) (interpreting the

Government

Employee

Rights

Act,

which

incorporates relevant ADA provisions); Thibeault v.

Merit Sys. Prot. Bd., 611 F. App’x 975, 977 (Fed. Cir.

2015) (same under the Rehabilitation Act).

* * *

As shown, no genuine circuit split exists. A

canvas of the case law shows that, at most, there is a

smattering of arguable intra-circuit differences

expressed in sporadic dicta or in seemingly

inadvertent, passing references to the components of

a prima facie case. When expressly determining the

elements of a failure-to-accommodate claim,

consistent with the circuits’ model jury instructions,

no circuit has held that an adverse employment

action is required.

IV. A failure-to-accommodate claim divorced

from job loss or demotion is rare, rendering

the question presented unworthy of review.

As just shown, only a small number of decisions

in the three decades since the ADA’s enactment have

squarely considered and resolved the question

whether an “adverse employment action” is an

element of a failure-to-accommodate claim. The vast

majority of the time, those bringing failure-toaccommodate claims have also been demoted, fired,

or constructively discharged—which all courts would

agree is an “adverse employment action”—so the

question presented does not arise. The Tenth Circuit

panel majority made exactly this point. See Pet. App.

173a n.10. Indeed, but for the district court’s refusal

to allow Exby-Stolley’s constructive-discharge claim

to go to the jury—a refusal now subject to revision on

remand, see supra at 16-18—the issue probably

would not have arisen here either.

The dearth of relevant cases shows that the

ADA’s accommodation mandate generally works—

most employees do not need to sue for a reasonable

accommodation because their employers know that

they must provide one and may not fire an employee

to avoid doing so. Put differently, employers already

“know what acts will expose [them] to liability” when

employees ask for accommodations. Pet. 24.

The County asserts that ADA cases, like all

“[c]ivil-rights cases[,] are a mainstay of federalquestion jurisdiction.” Pet. 23. It gestures toward the

“[t]housands of ADA employment claims” filed in

federal court. Id. at 24. In this, the County is correct,

but its lens is far too wide, overlooking that the

question presented implicates only a tiny sliver of all

ADA cases. See Pet. App. 173a n.10.

Review should be denied for this reason as well.

V. The Tenth Circuit’s ruling is correct.

A. The Tenth Circuit correctly determined that

an “adverse employment action” is not an element of

an ADA failure-to-accommodate claim. Its decision

reflects straightforward analysis of the ADA’s text,

which mandates that employers may not

“discriminate against a qualified individual on the

basis of disability in regard to … terms, conditions,

and privileges of employment.” 42 U.S.C. § 12112(a).

Subsection (b) then goes on to “particularize[] and

make[] concrete [subsection (a)’s] rule” with

“examples of the kinds of disability discrimination

that” are “in regard to … terms, conditions, and

privileges of employment.” Pet. App. 9a. One

example is “not making reasonable accommodations

to the known physical or mental limitations of an

otherwise qualified individual with a disability.” 42

U.S.C. § 12112(b)(5)(A). An employer who fails to

provide accommodations, then, has discriminated on

the basis of disability, violating the ADA. See id. §

12112(a).

1. The County asserts that this language

requires that an employer’s failure to accommodate

result in a “material impact on the ‘conditions’ or

‘privileges’ of employment,” Pet. 27, or, as the district

court’s jury instructions mandated, “a significant

change in employment status, such [as] a hiring,

firing, failing to promote, reassignment with

significantly different responsibilities, or a decision

causing a significant change in benefits,” Pet. App.

206a-207a. But, as just explained, the statute

requires only that a failure to accommodate be “in

regard to” an employee’s “terms, conditions, and

privileges of employment.” See 42 U.S.C. § 12112(a).

When an accommodation “is reasonable and

enables an employee to perform the essential

functions of the job,” it “necessarily pertains to her

terms, conditions, and privileges of employment.”

CA10 U.S. Br. 21. When “an adjustment or

modification is job-related, e.g., specifically assists

the individual in performing the duties of a

particular job” in any way, it can be a “reasonable

accommodation.” 29 C.F.R. pt. 1630 app. § 1630.9. As

the Tenth Circuit put it, a failure to accommodate

thus “necessarily—indeed, as a matter of logic and

common sense—must involve (i.e., be ‘in regard to’)

that qualified person’s ‘terms, conditions,

privileges of employment.’” Pet. App. 52a.

and

2. As discussed above (at 13-14), the statutory

phrase “terms, conditions, and privileges of

employment” embraces all attributes of the

employer-employee relationship. “In regard to” also

“generally has a broadening effect,” indicating that

the text should be understood “expansively.” Lamar,

Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752,

1760 (2018). Showing a “direct relation to or impact

on” something, no matter how small, is enough to be

“in regard to” it. Id.

The ADA’s accommodation mandate is capacious

by design. Diluting that mandate by adding an

“adverse employment action” element—as that

element has been defined in disparate-treatment

doctrine by the lower courts—would impermissibly

shrink its reach and engraft onto the ADA a

requirement that “does not expressly appear in [its]

plain terms.” Pet. App. 10a. The County’s position

thus would “rewrite the statute that Congress has

enacted,” see Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138

S. Ct. 617, 629 (2018) (quotation marks omitted),

allowing prohibited discrimination to go unremedied.

B. Requiring a failure-to-accommodate plaintiff

to prove an “adverse employment action” would

severely weaken the ADA’s affirmative obligation on

employers to accommodate

employees with

disabilities. Section 12112(b)(5)(A) creates a duty to

accommodate known limitations. See Pet. App. 20a21a. A failure to fulfill that duty is actionable

because the ADA “requires preferences in the form of

‘reasonable accommodations” that allow people with

disabilities “to obtain the same workplace

opportunities” as other employees. U.S. Airways, Inc.

v. Barnett, 535 U.S. 391, 397 (2002). A scheme

requiring the further harm demanded by the

adverse-employment-action doctrine to trigger the

accommodation duty would make no sense because it

would require employees to suffer the very harms—

job loss or demotion—that the duty seeks to prevent

in the first place. See Pet. App. 27a-28a.

An example illustrates the point. Consider a

sales associate at the local big-box store. He suffers

from chronic pain, which is exacerbated by prolonged

standing. Though he can complete a normal shift

standing at the register like other employees, the

pain exhausts him so much that he cannot cook

dinner for his family, give his children baths, walk

the family dog, or participate in local community

groups. He is disabled under the ADA because he

suffers from a physical impairment “that

substantially limits one or more [of his] major life

activities.” 42 U.S.C. § 12102(1)(A).

He asks his manager to provide a tall, orthopedic

chair that would allow him to sit while at the

life outside of work. The chair is not cheap, but its

purchase would not pose an undue hardship on the

employer. Because the employee loves his job and

needs his paycheck, he will stay whether his

employer provides the chair or not. Wanting to save

the company money, his manager refuses the

accommodation. The employee remains in constant

pain, and, though many employees would quit under

these circumstances, he soldiers on.

According to the County, this refusal to

accommodate is perfectly lawful because the

employee has not suffered an “adverse employment

action.” In light of the text and purpose of the ADA’s

accommodation mandate, that position cannot be

right, and the Tenth Circuit properly rejected it.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,