Opposition Brief — Southern Co. Services v. Pritchard

No. 96-1442

In The

Suprenve Court of the Hnited States

/

>—~

October Term, 1996

SOUTHERN COMPANY SERVICES, INC.,

Petitioner,

SUE PRITCHARD,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

DEBORAH A. MATTISON

Counsel of Record

SANDRA B. REISS

GORDON, SILBERMAN,

WIGGINS & CHILDS

Attorneys for Respondent

1406 SouthTrust Tower

420 North 20th Street

3irmingham, Alabama 35203

(205) 328-0640

71131 . qu

(800) 3 APPEAL « (800) 5 APPEAL * (800) BRIEF 21 poeliate

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TABLE OF CONTENTS

See OE CE vik ds cca ko Seas addeemsa caeuns

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Reasons for Denying the Writ ..............00005-

The Eleventh Circuit’s Opinion Regarding The

Definition Of Disability Is Consistent With The

Statutory Construction Of The Americans With

Disabilities Act As Well As Holding From Other

GOMDs: noo 5k bn dee a eae tacks kee odaw eens

Il. There Is No Split In the Circuits Regarding Any

Objective Evidence Requirement. ...........

Il. The Eleventh Circuit Did Not Hold That The Mere

Use Of Mitigating Measures Automatically Proves

The Presence Of A Disability. ..............

IV. The Eleventh Circuit’s Finding That Sufficient

Evidence Existed To Demonstrate A Genuine

Issue Of Material Fact Regarding SCSI’s

: Perception Of Pritchard As Disabled Is Consistent

4 With The ADA And The Opinions Of Other

NI os Jar cas oh ca anes bo ciesecaee

: V. The Eleventh Circuit Properly Remanded

: Pritchard As No Alternative Grounds Existed For

; Affirming Summary Judgment. .............

4 I ere rer ere Tey ee ee ee eP ey

15

17

18

24

25

il

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Beasley v. Indiana Bell Telephone Co., 1996 U.S. App.

LEXIS 4956 (7th Cir. T99G) 2. cccccccccsccerces 15, 16

Best v. Shell Oil Co., 9 NDLR 171 (7th Cir. 1997) .11, 16, 23

Braverman v. Penobscot Shoe Co., 859 F. Supp. 596 (D.

Dials 8996) ova cvivccccsavesesesnnecocesneess 14

Byrne v. Board of Education School of West Allis-West

Milwaukee, 979 F.2d 560 (7th Cir. 1992) ........ 22

Canon v. Clark, 883 F. Supp. 718 (S.D. Fla. 1995) .. 10

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548,

98 2. Be Bb DOS CIO noc cc csddawccksaavenes 9

Chandler v. City of Dallas, 2 F.3d 1385 (Sth Cir. 1993)

oocctccceeeuessk5ee00eheeenRONROeeeEN SS 18

Cook v. Rhode Island Dept. of MHRH, 10 F.3d 17 (lst

Se. BRS) oc ccevncunsdeicasdsesaneeceseeen 20

Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C.

RODE) ov conccesccsetnesseinessee eee 11

Dutcher v. Ingall’s Shipbuilding, 53 F.3d 723 (Sth Cir.

BORS) oo a cncccadhsewsdenseuaseneeeenee 16

£

4

i

;

4

iii

Contents

Page

Dutton v. Johnson City Bd. of County Comm'rs, 859 F.

Supp. 498 (D. Kan. 1994) .......0eeeeee renee 15

EEOC v. Joslyn Manufacturing Co., 8 NDLR 199 (E.D.

Be CURA EMS b ES RES Neaweceseeneeneredees 23

Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993)

TROL SRE PE ee Tee eee eee Ee 11

Gray v. Ameritech Corp., 937 F. Supp. 762 (N.D. Ill.

ES pete ere ee reer ee ee ee ee rte ere 21

Guice-Mills v. Derwinski, 967 F.2d 794 (2d Cir. 1992)

eet. ew ciegig dae ee sees ON UE EAM 15

Harris v. H & W Contracting, 102 F.3d 516 (11th Cir.

DONE Gad 5 brides SAKEW sR CN adds eee eK eee swrRee> 9, 14, 17

Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991)... 19

Homeyer v. Stanley Tulchin Associates, Inc.,8 NDLR 264

(7th Cir. 1996) ......cccecccccecccecenecccees 16, 17

Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996) .... 13

Kelly v. Drexel University, 94 F.3d 102 (3rd Cir. 1996)

SO Se eae Pan re a ree eee ee eee ee 23

Lift v. Secretary of Transportation, 5 NDLR 405 (D.D.C.

DEE Cb as ss cadens ese caver escrenceneorceess 10, 13

eel

iv

Contents

Page

McGinnis v. Wonder Chemical Co., 1995 U.S. Dist.

LEASS 18909 (B.D. PG. 1995) os cccccsccsvcccss 23

McGinnis v. Wonder Chemical Co., 7 NDLR 290 (E.D.

We SO OS Sana eene chee annkeken aoe hha bok Coie 20

Milton v. Bob Maddox Chrysler, Plymouth, Inc., 868 F.

mu, Tae Chae. GO. FO: vcinccwacissiegvecnes 14

Muller v. Hotsy Corp., 917 F. Supp. 1389 (N.D. Iowa

| RD RE nT aes Seer y my epee 19, 20

Overturf v. Penn Ventilater Co., Inc., 8 NDLR 196 (E.D.

Tis FOES kp cyarcscsaceonesebasieiesaesreees 24

Perez v. Philadelphia Housing Authority, 677 F. Supp.

Se Ss OED 88000404 000 0eas eR dee 15

Roe v. District of Columbia, 842 F. Supp. 563 (D.D.C.

SORE) hs ni euks 66400446 0eE ERE CHER ERR RS 24

Roth v. Lutheran General Hospital, 57 F.3d 1449 (7th

Se SPOR. Rd0k x4 baksudunnececsbie ceReeReeaen 16, 18

Runnebaum y. Nationsbank of Maryland, N.A., 8 NDLR

ae CN A EE Nick cakes dandbiansoecnsnenas 15, 24

School Board of Nassau County, Fla. v. Arline, 480 U.S.

273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987) .10, 19, 20

Sigurdson v. Carl Bolander & Sons, 511 N.W. 2d 482

Ge GA, BR Te vk d vans cceneckesauness 23, 24

Contents

Page

Stewart v. County of Brown, AD Cases BNA 1018 (7th

Cr, 1906) oc cc cncccccsesvcccnesnsseucssesees 23

Stradley v. LaFourche Communications, Inc., 869 F.

Supp. 442 (E.D. La. 1994) ..ccccccccvccscccess 23

Treadwell v. Alexander, 707 F.2d 473 (11th Cir. 1983)

CRIT POO ST, EN tetas carts 15

Zambelli v. Historic Landmarks, Inc., 6 NDLR 194 (E.D.

a TOOT) gic ccbcatnctadeceresntchneseressae® 24

Statutes Cited:

98 U.S.C. § 1BS4 cc ccccccccencccncusssunssenes 1

99 U.S.C. § 706 ..ccncccscccccvcccccccescecnes 10

42 U.S.C. § 12012(2) ...---ereeeeeeereecereeee 10, 11, 19

42 U.S.C. § 12101, ef seg. ....e eee rerereeeeeerees 9, 10

42 U.S.C. § 12111(8) ...- eee ceeeeerercceceserces 24

42 UGG, © PATIS cc ccccencccscsessrsersaccoess 25

Rules Cited:

Federal Rule of Civil Procedure 56 ......---++++++> 1, 19

Federal Rule of Civil Procedure 56(f) ...---++-++++: 21

vi

Contents

Page

Other Authorities Cited:

OF Coie © CR 6 ec cecdccuncccavinckpedtesns 19

ae Rs ©) BE, EM 5 ons Fike ctedieneeeves 10

SP Te | PRPRREES bv sc ccvcccancecsascesdvevers 12

ae Gin | PGMA oc wee cccvsvesssecsceeceuee 10

P GR & TGP ov cc vince weccessoaxcuveess 1]

ae CIRM. © UGGS sev ccecvesssusccatacavesis 10

Be Gries & PSTD vc ccnaccccvcessasncnsexeesy 11

BP CR § TGIAMD cenccsccessedewessasvasvees 12, 17

BP De F CGD ov vs detewnceicpaccncestess 19

BP Gr BH ORMAMD oc ocewivactaets daccdeueuees 5

EEOC Compliance Manual § 902-2 ............... 11

EEOC Compliance Manual § 902.3 ............... 11

EEOC Compliance Manual § 915.002 ....... 10, 13, 20, 22

H.R. Rep. No. 101-485, Part 3, 101st Cong., 2nd Sess.

OW GEUOEE kis sccbiccsciakatesssdnseendeanee 19

acca

vii

Contents

Page

S. Rep. No. 101-116, 101st Cong. Ist Sess. at p. 23 . 10

H. Judicial Rep. No. 101-485, Part 3, 101st Cong. 2nd

Goss. at P. WB... ncecsevcccceveccccessvscvcers 10

Tucker and Goldstein, Legal Rights of Persons With

Disabilities: An Analysis of Federal Law, L.R.P.

Publications, 1993 ......-eeeeeeeceerreerereee® 19, 20

ae nmr erence

]

This case is not one which should be reviewed by this

Honorable Court. It does not present a unique application of the

law nor does it conflict with prior precedent. Moreover, Petitioner,

(hereinafter SCSI) in an attempt to capture the attention of this

Court, raises several new issues not considered by the court below.

Since the Eleventh Circuit’s holding merely involves a common

application of Rule 56 of the Federal Rules of Civil Procedure,

wherein the court correctly held that Respondent (hereinafter

Pritchard) had presented sufficient evidence to create a genuine

issue of material fact on the existence of her disability, this Court

should deny the Petition for Writ of Certiorari. As a result, this

Court cannot properly exercise jurisdiction over this case pursuant

to 28 U.S.C. § 1254.

STATEMENT OF THE CASE

To the extent necessary to present a more accurate overview

of the critical issues before this Court, Pritchard offers the following

additions and/or corrections to SCSI’s statement of the case.

As noted, Pritchard held several positions while employed by

SCSI.' In May 1991, Pritchard transferred to the Quality Assurance

Department (“QA”) to work as an Engineer I. There, Pritchard was

largely responsible for conducting audits on nuclear power

generating plants to assure regulatory safety compliance. On each

of the occasions that Pritchard transferred while at SCSI, Pritchard

did so without formally executing any transfer and/or application

request. R-3-61-1, p. 1; R-3-61-2, pp. 42, 45, 49, 51-52, 54-55, 60-

61, 63-65, 106-107, 120-125.?

1, While working at SCSI, Plaintiff preformed her duties well and she was

cither transferred or promoted several times. R-3-61-1, p. 2; R-3-61-3; R-3-61-

4, pp. 104, 108; R-3-61-5, p.121.

2. This is significant because it demonstrates that SCSI has a practice of

transferring employees without requiring the employee to execute any formal

transfer request.

2

In 1990, Pritchard began to experience clinical depression.

Pritchard’s depression grew more severe during 1991 and 1992,

and on May 1, 1992, she ultimately took a leave of absence on the

advice of her treating psychiatrist, Dr. Neville. During her leave of

absence, Pritchard was treated for major clinical depression and

dysautonomia.’ Until at least Pritchard’s deposition in June 1994,

she continued to experience the above medical conditions for which

she took medication. Further, as will be explained below, from

1992 until her termination in June 1993, Pritchard’s disability

substantially limited her ability to communicate, concentrate, care

for herself, and to function in a variety of other areas. R-3-61-1, p.

3; R-3-61-2, pp. 13, 96, 154-155, 186-188, 280-281; R-3-61-7; R-

3-61-8.

Contrary to SCSI’s assertion, there is no doubt that SCSI was

well aware of Pritchard’s disabilities. Carl Watts, manager of

Employee Relations and Safety in SCSI’s Human Resources

Department knew that Pritchard had clinical depression which was

significant enough to interfere with her ability to work. Additionally,

both Prince, who was the Head of Human Resources, and Welliver,

Manager of Quality Assurance and Research, were aware that the

severity of Pritchard’s depression interfered with her ability to work

and both also perceived Pritchard as a person with a disability, as

that term is defined by the ADA. This fact is significant because it

was part of Watts’ and Prince’s job responsibilities to determine

who the ADA protected, in order to assure that employees were

reasonably accommodated and otherwise treated in a non-

discriminatory manner. R-3-61-1, p. 4; R-3-61-2, pp. 177-180, 182-

184; R-3-61-4, pp. 112, 123; R-3-61-5, pp. 101-102, 104; R-3-61-

6, pp. 15, 42, 45-46, 51-55, 59-142.

By December 1992, Pritchard had improved sufficiently to be

released to work by Dr. Neville, with certain limitations. Thus, at a

3. Dysautonomia is 4 disfunction of the automatic nervous system. This

condition causes Pritchard to experience fatigue, loss of sleep, irregular heartbeat,

being hot or cold irregularly, diarrhea, heartburn, upset stomach, and tingling of

the hands and feet. R-3-61-2, pp. 181-182.

3

1992 Christmas party, Pritchard informed SCSI that she was willing

and able to return to work, so long as her duties did not include the

performance of work in the nuclear field. R-3-61-1, p. 4; R-3-61-

2, pp. 194-195, 206; R-3-61-10.

Significantly, until her termination in June 1993, Pritchard

continued to express her willingness and strong desire to return to

work by way of a transfer to any vacant position for which she was

qualified. However, SCSI continually refused to even attempt to

accommodate Pritchard, despite the expansive definition of

“accommodation” under the ADA. SCSI’s response to Pritchard’s

continued requests for a transfer was to require Pritchard to remain

on an unpaid disability leave of absence in the event Pritchard’s

condition improved enough to allow her to return to her former

position in Quality Assurance. Further, from the time Pritchard

was released to work in January 1993, until her termination in June

1993, every time SCSI solicited information about Pritchard’s

disability, it was for the purpose of maintaining Pritchard on the

unpaid disability leave. R-3-61-2, pp. 206-07; R-3-61-5, pp. 149,

193-197; R-3-61-6, pp. 108-109.‘

On January 29, 1993, Pritchard was officially released to return

to work, effective February 1, 1993, with the aforementioned

restriction by Dr. Neville. Dr. Neville explained that the nuclear

field “seems to have stress that was very difficult for Pritchard to

cope with. Stress in that job situation seems to have contributed to

her depression and decompensation requiring time off work.” After

receiving the letter from Pritchard, SCSI continued to refuse to

reinstate Pritchard, but retained her on unpaid disability leave of

absence. If SCSI was confused about Neville’s seemingly clear

restriction, it took no steps to clarify his meaning until June 10,

4. The record is replete with specific instances where, in response to

Pritchard's attempt to return to work, SCSI required Pritchard to remain on unpaid

disability. For example, on or about January 14, 1993, Prince contacted Pritchard,

not to transfer her to a vacant position, but to secure a medical release for the

purpose of continuing Pritchard on a disability leave of absence. R-3-61-1, p. 4;

R-3-61-5, pp. 135-137; R-3-61-12.

4

1993. Even then, SCSI failed to take the steps necessary to secure

any further information. R-3-61-1, p. 6; R-3-61-2, p. 206; R-3-61-

5, pp. 146-147; R-3-61-7; R-3-61-10.

On January 29, 1993, Pritchard again contacted Prince in an

effort to return work. During the conversation, Pritchard expressly

indicated her strong desire to transfer to any vacant position for

which she was qualified. The January 29, 1993, conversation

between Pritchard and Prince ultimately created one of the most

hotly debated issues in the litigation. During the conversation, Prince

suggested that Pritchard was free to “apply” for other positions

which were posted on SCSI’s “job hotline.” Confused, Pritchard

asked Prince why she should “apply” for positions listed on the

“hotline”, since she was already employed by SCSI and the hotline

was designed solely for “new hires.” Pritchard told Prince that,

consistent with her previous experiences with SCSI, transfers

regularly occurred within SCSI without employees formally

“applying” for a position. She also stated her understanding that

many vacancies were not even listed on the hotline.’ Finally, she

asked for more information on what was expected of her. In response

to Pritchard’s questions, Prince retracted his previous suggestion

regarding the hotline by responding that Pritchard should not “worry

about it at this time.” Instead, Prince instructed Pritchard to simply

provide Prince with the aforementioned requested medical

information to continue her disability leave and stated further that

he would communicate later with Pritchard regarding any future

employment opportunities. R-3-61-1, pp. 5-6; R-3-61-2, pp. 218-

222; R-3-61-6, p. 73; R-3-61-5, pp. 189-191; R-3-61-6, pp. 134-

136.

On February 15, 1993, Prince contacted Pritchard and told

her that since Dr. Neville had recommended against returning to

nuclear work, SCSI had no positions available for Pritchard.

According to Prince, all of the engineering jobs required the

5. Pritchard denies that her husband brought her home a listing of vacancies

before her termination. R-3-61-1, p. 12.

mecca

5

“flexibility to accept nuclear assignments.” Prince also told

Pritchard that “management has approved to continue your DLOA

(disability leave of absence) for 90 days to May 15.” R-3-61-1, p.

7; R-3-61-2, pp. 25, 206-207, 226-227; R-3-61-15.

Pritchard vehemently denies that the so-called flexibility to

accept non-nuclear assignment is an essential function for every

engineering position. The Eleventh Circuit also stated that this issue

would have to be resolved by a jury. SCSI is an extremely large

and diverse corporation and a number of engineering positions exist

which involve absolutely no and/or extremely limited nuclear work.

This includes engineers who work with fossil fuel and hydroelectric

generating plants, telecommunications, computing, environmental

affairs, research, substations, transmission planning and design,

materials procurement, and fuel procurement. Moreover, the

engineering job description does not identify the so-called

“flexibility to accept nuclear assignments” as a requirement. R-3-

61-1, pp. 7-9; R-3-61-2, pp. 226-227; R-3-61-4, pp. 175, 178, 388-

389; R-3-61-14; R-3-61-19.°

No one from SCSI contacted Pritchard during March or April

1993. In April 1993, Prince contacted Watts to inform him that

Pritchard’s 90-day unpaid disability leave of absence was about to

expire. At this time, SCSI had failed, still to even attempt to transfer

Pritchard. Prince then instructed Pritchard to have her physician

execute a second statement of disability in order to continue to

maintain Pritchard on unpaid disability leave. Accordingly, on April

4, 1993, Dr. Neville physician executed an “Attending Physician’s

Statement of Disability” which identified Pritchard as having major

6. For example, most of the work in Fossil/Hydro is non-nuclear. The

engineers in Fossil/Hydro are not hired to perform nuclear work or for their

expertise in the nuclear area. Finally, Prince could not identify any negative

consequences of having an engineer in Fossil/Hydro who did not have the

flexibility to perform nuclear work. These facts are important because they include

the factors which must be considered when identifying the essential functions of

any position. 29 C.F.R. § 1630.2(n). R-3-61-1, p. 7; R-3-61-4, pp. 197-199; R-

3-61-5, pp. 162-164, 169-170, 176; R-3-61-6, p. 169.

6

clinical depression, recurrent, with low energy and nervousness,

requiring medication on a daily basis. R-3-61-1, p. 7-8; R-3-61-2,

p. 226; R-3-61-6, p. 110.

During May 1993, Pritchard continued to contact SCSI to

communicate her strong desire to transfer to any vacant position.

SCSI responded by requesting a more certain statement of disability

in order to retain Pritchard on unpaid disability leave. R-3-61-1, p.

8; R-3-61-2, pp. 230-236, 248; R-3-61-5, p. 225; R-3-61-6, p. 132;

R-3-61-19; R-3-61-21.

On May 17, 1993, Pritchard wrote to SCSI and reiterated her

urgent need for a transfer to a vacant position. She also, again,

challenged SCSI’s assertion that all engineering positions at SCSI

require either nuclear assignments or the flexibility to accept nuclear

assignments, listing several areas within SCSI where no nuclear

work is done. R-3-61-2, p. 212; R-3-61-19.

On May 24, 1993, Mr. Thomas E. Sanford, from the Employee

Benefits Department of SCSI, sent Pritchard a letter outlining the

process for Pritchard to apply for long-term disability. SCSI sent

this letter despite Pritchard’s statements that she was ready willing

and able to return to work. On May 25, 1993, Dr. Neville, wrote

SCSI again, reiterating that Pritchard was able to return to work,

so long as it was not in the nuclear field. R-3-61-1, p. 10; R-3-61-

23; R-3-61-24.

On June 10, 1993, Pritchard wrote to Prince seeking an update

on her employment status. In response, Welliver set up a meeting

with Pritchard, to be held on June 18, 1993. At that meeting, Welliver

informed Pritchard that SCSI had decided to terminate Pritchard

because Pritchard did not have the flexibility to work in the nuclear

area. At this time, SCSI had never even attempted to place Pritchard

in any vacant position. R-3-61-1, pp. 10-11; R-3-61-2, pp. 237,

240, 244; R-3-61-6, p. 189; R-3-61-25; R-3-61-26, pp. 2-7.’

7. It is undisputed that several vacancies existed at SCSI between January

(Cont'd)

7

Pritchard filed litigation challenging SCSI’s failure to

accommodate her and her subsequent termination. At the close of

discovery, SCSI moved for a summary judgment, arguing that

Pritchard did not have a disability within the meaning of the ADA.

In response, Pritchard presented substantial evidence demonstrating

a genuine issue of material fact on this point. The evidence included

deposition testimony, an affidavit, and three declarations which

described the significant impact Pritchard’s impairments had on

her ability to, inter alia, communicate, concentrate, care for herself,

and function after December 1992. Specifically, Pritchard’s affidavit

stated:

During my leave, up until the time of my

termination, my disabilities substantially

limited my ability to function. My symptoms

included profound fatigue, difficulty sleeping

and communicating, experiencing suicidal

thoughts, uncontrollable crying and being

limited in my ability to perform my former

job classification of nuclear related

engineering. In fact, from April, 1992 until

January, 1993, I was unable to perform any

work. I continue to take medication for my

conditions.

Moreover, in her deposition, Pritchard described the significant

symptoms she experiences as a result of her dysautonomia. R-

3-61-1, p. 3; R-3-61-2, pp. 181-182.

(Cont'd)

and June 1993, which Pritchard would have been qualified to fill. These include

two Electrical Designer positions, a Senior Designer position, two Integrated

Resource Planning Analyst positions, a Telecommunications Engineer, and an

Engineer Analyst position. All of these positions perform little or no nuclear

work. R-1-61-1, pp. 7-12; R-3-61-4, pp. 361-365, 375-376, 385-386, 410; R-3-

61-5, pp. 195-196, 300-302; B-291, 304-305, 307; R-3-61-27 through R-3-61-

38.

Likewise, Dr. Samuel Saxton, Pritchard’s psychologist,

supplied a Declaration which stated:

Pritchard presented symptoms of major

depression which substantially limited her |

ability to function and which consisted of |

marked fatigue, lack of energy, lack of interest, |

poor concentration, memory problems, suicidal

thoughts, depressed affect and irritability. These

symptoms, although somewhat alleviated by

medication, continued until at least June, 1993.

Decl. of Saxton, p. 2 (emphasis added).* R-3-61-7, p. 2. The |

declaration further stated that Pritchard was diagnosed as having

“major depression, recurrent, with suicidal thoughts, and that

she had difficulty sleeping.” It also is noted that Pritchard

continued to be treated for her medical condition. Pritchard also

presented the Declaration of her husband, James Pritchard,

which affirmed the above evidence. Dr. Virginia Pascal, also

supplied a Declaration relative to Ms. Pritchard’s dysautonomia

and its effect. Finally, Pritchard presented evidence that on April

4, 1993, Dr. Neville executed an “Attending Physician's

Statement of Disability” identifying Pritchard as having “major

depression, recurrent with low energy, nervousness and taking

medication on a daily basis.” R-3-61-7, p. 2; R-3-61-8; R-3-61- |

11; R-3-61-17. |

The District Court, however, granted SCSI’s motion for |

summary judgment, obviously either ignoring or discounting

Pritchard’s evidence. R-4-86, p. 2.

8. As SCSI is well aware, at the time Pritchard’s submission in response to

SCSI’s motion for summary judgment was due, Dr. Neville was critically ill with

cancer. Thus, Saxton, a fully licensed psychologist who was in private practice

with Dr. Neville and who was already familiar with Pritchard, reviewed Pritchard's

file and communicated with Dr. Neville in order to render his opinion regarding

Pritchard's condition. R-3-61-7.

9

After reviewing the record, the Eleventh Circuit reversed the

District Court’s decision and found that Pritchard’s evidence had

raised a genuine issue of material fact regarding the existence of a

disability. It remanded the case for further proceedings. SCSI filed

a Petition For Rehearing and Suggestion of Hearing En Banc, which

was denied. SCSI now mischaracterizes several of the court’s

holdings in an attempt to secure review by this Court.

REASONS FOR DENYING THE WRIT

I, THE ELEVENTH CIRCUIT’S OPINION REGARDING

THE DEFINITION OF DISABILITY IS CONSISTENT

WITH THE STATUTORY CONSTRUCTION OF THE

AMERICANS WITH DISABILITIES ACT AS WELL AS

HOLDING FROM OTHER CIRCUITS.

At the onset, it must be remembered that the court below merely

ruled on the straightforward and relatively common issue of whether

Pritchard had produced sufficient evidence that she was disabled

in order to withstand a motion for summary judgement. However,

SCSI’s now attempts to overstate the court’s ruling, alleging that

the Eleventh Circuit made certain findings regarding Pritchard’s

evidence which, in fact, the Eleventh Circuit Court of Appeals never

found, nor considered. In reality, the Eleventh Circuit Court of

Appeals simply reviewed the evidence in the light most favorable

to Pritchard, as it was required to do, and concluded that several

issues of material fact remained. Celotex Corp. v. Catrett, 477 U.S.

317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Pritchard was “not

required to prove her case” in order to prevail. Harris v. H & W

Contracting, 102 F.3d 516, 521 (11th Cir. 1996). Since the court

in Pritchard simply rendered an opinion on a routine and well

established principle of law, no review is needed.

The Americans With Disabilities Act, 42 U.S.C. § 12101, et

seq. (“ADA”), and the Rehabilitation Act of 1973 was enacted

primarily to place persons with disabilities on equitable footing

with persons without disabilities in a variety of settings, including

10

in the critical area of employment. 42 U.S.C. § 12101, et seq., 29

C.FER. § 1630.1, et seg. Congress was extremely concerned not

only about employment discrimination but about “archaic attitudes”

held by people insensitive to the plight of persons with disabilities.

School Board of Nassua County, Fla. v. Arline, 480 U.S. 273, 107

S. Ct. 1123, 94 L. Ed. 2d 307 (1987).°

As recognized by the Eleventh Circuit, in order to be protected

by the aforementioned statutes, Pritchard must demonstrate that

she is a person with a disability, as that term is defined by the ADA

and Section 504.'° 42 U.S.C. § 12012(2) states that “the term

‘disability’ means (a) a physical or mental impairment that

substantially limits one or more of the major life activities of such

an individual; (b) a record of such impairment; or (c) being regarded

as having such an impairment.”

A physical or mental impairment is broadly defined and

includes virtually any disability, including depression or any mental

or psychological disorder. 29 C.F.R. § 1630.2(H). 29 C.FR.

§ 1630.2(A). Further, the issue of the existence of a disability must

be determined “without regard to mitigating measures such as

medicines. .. .” Appendix to Part 1630 - Interpretive Guidance on

Title I of the Americans With Disabilities Act (hereinafter

“Appendix”), 29 C.F.R. § 1630.2(H). See also S. Rep. No. 101-

116, 101st Cong. Ist Sess. at p. 23; H. Judicial Rep. No. 101-485,

Part 3, 101st Cong. 2nd Sess. at p. 28; Canon v. Clark, 883 F. Supp.

718 (S.D. Fla. 1995); Lift v. Secretary of Transportation, 5 NDLR

405 (D.D.C. 1994). When a person has more than one disability,

the proper inquiry is whether the combination of the disabilities

substantially limit any major life activity. EEOC Compliance

Manual, § 915.002 at p. 35. Applying the regulations, the Eleventh

Circuit and District Court correctly found that Pritchard’s depression

9. SCSI receives federal financial assistance in the form of funds from the

Department of Energy.

10. The two statutes define the term identically. See 29 U.S.C. § 706. Thus,

further reference to the ADA will incorporate Section 504's definition.

Pe eS ee

1]

constituted a “mental impairment” under the ADA. R-86, p. 11.

Pritchard also presented substantial evidence that her dysautonomia,

too, is an impairment under the ADA. 42 U.S.C. § 12102(2); 29

C.F.R. § 1630.2(h).

“Major life activity” means the basic activities that the average

person can perform with little or no difficulty. EEOC Compliance

Manual § 902-2 at p. 14. The term is broadly defined and it can

include performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning and working. 29 C.FR. § 1630.2(1);

Best v. Shell Oil Co., 9 NDLR 171 (7th Cir. 1997). This list is not

exhaustive and other activities can include sitting, standing, lifting,

reaching, or having the ability to engage in normal social relations.

Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992); 29

C.F.R. § 1630.2(1), Appendix. See Fitzpatrick v. City of Atlanta, 2

F.3d 1112 (11th Cir. 1993). Mental and emotional processes such

as thinking, concentrating, and interacting with others, are other

examples of major life activities. EEOC Compliance Manual

§ 902.3 at p. 15.

In this case, the District Court correctly found that functioning,

sleeping, concentrating, and communicating were major life

activities. The Eleventh Circuit, acknowledging the existence of

such major life activities, found that, Pritchard also presented

evidence that her ability to, inter alia, communicate, concentrate

and sleep were signuficantly affected. The court also noted that Dr.

Saxton had stated that Pritchard had marked fatigue, lack of energy

and interest, poor concentration and communication, memory

problems and suicidal thoughts.

Contrary to SCSI’s mischaracterization, the Eleventh Circuit

Clear!y stated that an impairment must be examined on a case-by-

case basis and that Pritchard’s depression must substantially limit

a major life activity in order to be protected by the ADA. To

determine whether a condition significantly restricts a major life

activity, the proper analysis is whether the impairment significantly

restricts the manner or duration which the individual may perform

12

the activity, as compared with the average person. 29 C.F.R.

§ 1630.2(1). The regulations also indicate that it is important to

examine “the nature and severity of the impairment, the duration

or expected duration of the impairment and the long- term or

permanent impact of the impairment.” It is also important to look

at the residual effects of an impairment. 29 C.F.R. § 1630.2(J),

Appendix.

There can be no doubt that Pritchard presented evidence that

the nature and severity of her disabilities extremely limited her

overall functioning in a variety of areas, including her ability to

care for herself. The evidence also demonstrated significant

difficulties with Pritchard’s mental and emotional process, and her

concentration, and her communication with others. Especially when

assessing the evidence in the manner most favorable to Pritchard,

which was the standard imposed upon the Eleventh Circuit, there

can be no question that Pritchard presented substantial evidence

demonstrating that she had a multitude of symptoms which,

especially without medication, severely limited her ability to

perform a variety of major life activities. Among the most notable

limitations was evidence indicating Pritchard had profound fatigue,

uncontroilable crying and suicidal ideation. She also had a lack

of interest, lack of energy, poor communication, and memory

deficiencies. Pritchard and Dr. Saxton affirmatively explained how

these conditions substantially limited Pritchard’s ability to function.

Moreover, given Pritchard’s suicidal ideation, it is a reasonable

inference that without medication, Pritchard might not be alive.

Further, the length of time Pritchard had major clinical

depression and dysautonomia, from 1990 until at least her

deposition in June 1994, demonstrates that Pritchard’s impairments

were of long-term duration, with corresponding impact. As of April

1993, Dr. Neville diagnosed Pritchard as having “major depression,

recurrent, with suicidal thoughts” and he had prescribed medication

to control its affects. Even with the medication, however, Pritchard’s

symptomology continued and, again, it included marked /atigue,

lack of energy, lack of interest, poor concentration, memory

13

problems, suicidal thoughts, depressed affect and irritability.'' This

is true despite the fact that Pritchard had already received extensive

and long term treatment for these impairments. Thus, Pritchard’s

evidence was far more than a simple conclusionary statement, as

Pritchard extensively described her limitations and supported them

with medical evidence.

Further, the residual effects of Pritchard’s condition

demonstrates that she is disabled. Pritchard has needed to continue

to rely on medication for several years and she is indefinitely

restricted as to the type of work she can perform. Further, SCSI

made the decision that Pritchard could not perform any work from

January to June 1993, and based its termination on her condition.

See EEOC Compliance Manual § 915.002 at p. 33, (which

recognizes that a disability may have a long term impact on an

individual by limiting her ability to perform one or more major life

activities indefinitely.) Thus, the Eleventh Circuit’s opinion that

the issue of whether Pritchard was disabled was a question for the

jury, is consistent with the plain language of the ADA.

Additionally, the Eleventh Circuit’s decision is extremely

consistent with opinions of other court’s regarding the potential

debilitating effect major clinical depression can have on an

individual. More than one court has also noted the debilitating

nature of major clinical depression. Jn Lift v. Secretary of

Transportation, supra, the plaintiff, like Pritchard, had major

depression of long-standing duration. Rejecting defendant’s

contention that the proper inquiry was whether medication

controlled plaintiff’s condition, the court characterized defendant

as trivializing the symptoms of plaintiff’s depression in light of its

“universal” recognition as a “significant” impairment. 5 NDLR at

p. 1308.

11. Nor does Pritchard’s impairment need to be permanent. EEOC

Compliance Manual, § 915.002 at pp. 29-30. It is enough if the impairment lasts

several months, is indefinite or unknown. See also Katz v. City Metal Co., 87

F.3d 26 (ist Cir. 1996)

14

Finally, and contrary to SCSI’s argument, the fact that Pritchard

was able to perform certain jobs which required communication

and concentration skills, does not mean an absence of a factual

issue on the existence of a disability. As the Eleventh Circuit Court

of Appeals noted, an individual can be both limited in her ability to

communicate and, especially with the help of medication, still be

able work. The fact that Pritchard is limited in her ability to

communicate does not mean that she cannot effectively

communicate. For example, an individual with a profound hearing

impairment is unquestionably substantially limited in his ability to

communicate. Does that mean such individual is not qualified to

perform in any position requiring the ability to communicate? Of

course not! The entire purpose of the ADA is to assure employment

opportunities for persons with such limitations, with or without

reasonable accommodations. In fact, the ADA anticipates that

employees who are significantly limited in their ability to perform

certain job duties, are, nonetheless, protected by the Act.” See

Milton v. Bob Maddox Chrysler, Plymouth, Inc., 868 F. Supp. 320

(S.D. Ga. 1994), wherein the court rejected an employer’s argument

that a plaintiff with a cancerous tumor, was not “disabled” because

he was both able to work and engage in the same activities he

performed prior to developing the condition.

Several courts, including the Eleventh Circuit’s decision in

Harris v. H & W Contracting, supra, have reached decisions

consistent with the court’s decision in Pritchard. In Harris, the

court found that a woman with Graves Disease who arguably had

less severe symptoms then Pritchard, had raised sufficient issues

of material fact to preclude summary judgment. Likewise, other

courts have found summary judgment inappropriate where, as here,

plaintiff has presented evidence of the existence of an impairment

which substantially limits a major life activity. See Braverman v.

Penobscot Shoe Co., 859 F. Supp. 596 (D. Maine 1994) wherein

the court found a material issue of fact regarding whether plaintiff’s

12. Even if these abilities constituted essential functions for certain

positions, the District Court failed to consider any potential reasonable

accommodations which would have allowed Pritchard to perform the positions.

15

cancer substantially limited a major life activity. See also Perez v.

Philadelphia Housing Authority, 677 F. Supp. 357 (E.D. Pa. 1987),

wherein the court, based on the plaintiff’s and her physicians’

statements regarding her impairment, found that she was

substantially limited in several major life activities; Guice-Mills v.

Derwinski, 967 F.2d 794 (2d Cir. 1992); Treadwell v. Alexander,

797 F.2d 473 (11th Cir. 1983). At least one court has held that the

issue of the existence of a disability is a “highly fact-sensitive,

determination,” Dutton v. Johnson City Bd. of County Comm'rs,

859 F. Supp. 498, 506 (D. Kan. 1994). See also Runnebaum v.

Nationsbank of Maryland, N.A., 8 NDLR 335 (4th Cir. 1996).

In conclusion, SCSI attempts to raise an issue where there is

none. At no time did the Eleventh Circuit Court of Appeals imply

that Pritchard’s limitations did not have to be substantial. Rather,

the Eleventh Circuit’s finding is simply that Pritchard had presented

sufficient evidence to create a material issue of fact regarding

whether she had a medical condition which significantly restricted

at least one major life activity. Indeed, based upon the abundant

evidence presented by Pritchard, the court’s decision was entirely

in keeping with the ADA and does not conflict with any other

Circuits.

II. THERE IS NO SPLIT IN THE CIRCUITS

REGARDING ANY OBJECTIVE EVIDENCE

REQUIREMENT.

The court’s decision is also entirely consistent with decisions

by the other Circuits relative to the issue both of what constitutes a

disability as well as the type of evidence necessary to create a factual

issue. Quite simply, there is no “split” regarding the issue of the

so-called “objective” evidence requirement. Finally, an analysis of

the cases relied upon by SCSI does not support its argument.

The primary decision relied upon by SCSI is Beasley v. Indiana

Bell Telephone Co., 1996 U.S. App. LEXIS 4956 (7th Cir. 1996).

Severely narrowing the issue before it, the Seventh Circuit held

only that Beasley presented no evidence of what his symptoms

16

entailed or why they significantly restricted any of his life

activities. Further, and contrary to SCSI’s assertion, Beasley did

not require that objective evidence be present in each case. Rather,

it found only that Beasley had submitted no evidence that his

symptoms, even when acute, substantially limited any major life

activity. However, the court also noted “when the merits of a

complaint involving subjective issues such as credibility, state of

mind and motivation—where the critical element lies within the

control of the movement—summary judgment may be

inappropriate.” 1993 U.S. App. LEXIS 4956, *1. The court also

indicated that it would have likely reached a different opinion if

Beasley, like Pritchard, had presented evidence from those who

were familiar with him and the symptoms he experienced when he

became ill.”

Dutcher v. Ingall’s Shipbuilding, 53 F.3d 723 (Sth Cir. 1995)

is equally distinguishable. Both Dutcher and her doctors readily

acknowledged that her impairment caused no impact on her daily

functioning. Further, “picking up little things from the floor” or

“holding them up high” or “real tight” hardly equates with profound

fatigue, lack of interest, uncontrollable crying, or suicida!

ideation. Dutcher, does not even discuss any so-called “objective

evidence” requirement. Finally, in Roth v. Lutheran General

Hospital, 57 F.3d 1449 (7th Cir. 1995), the evidence from his doctors

did not substantiate plaintiff’s statement of his limitations. Again,

Roth’s doctors were unable to support Roth’s limitations without

relying on Roth’s assertions and notab'y, the court found that Roth

was not creditable."

13. Further, notably absent from SCSI’s discussion of the law in the Seventh

Circuit, is Best v. Shell Oil Co., supra. In Best, the court found a material issue of

fact where a truck driver with an injured knee was limited in the major life activity

of working. Indeed, the Seventh Circuit decision in Shell is extremely consistent

with Pritchard, especially since it seems that Best’s impairment was less limiting

than Pritchard’s.

14. SCSI also fails to mention Homeyer v. Stanley Tulchin Associates, Inc.,

(Cont'd)

17

Further, even if so-called “objective evidence” was required,

Pritchard’s evidence, which included statements from Dr. Neville

and Dr. Saxton, as well as her husband, regarding the existence

and effect of her disability on her everyday life, constituted sufficient

evidence.

In conclusion, there is no requirement that Pritchard present

any so-called “objective” evidence so long as she presented

sufficient evidence of the existence of a condition which

substantially limits at least one major life activity. SCSI has

attempted to create a conflict where there is none, and thus, there

is no need to belabor the point further.

Ill. THE ELEVENTH CIRCUIT DID NOT HOLD THAT

THE MERE USE OF MITIGATING MEASURES

AUTOMATICALLY PROVES THE PRESENCE OF A

DISABILITY.

Astonishingly, SCSI accuses the court of holding that any

individual with a medical condition which utilizes a mitigating

measure is autcmatically deemed eligible under the ADA. Even a

cursory review of the Eleventh Circuit’s decision indicates that it

never reached this conclusion. Consequently, there is absolutely

no reason for this Court to exercise jurisdiction on this issue, as

SCSI has seriously misstated the court’s holding.

As explained previously, the general rule under the ADA is

that the existence of a disability is to be examined without the use

of mitigating measures such as medication. Harris v. H & W

Contracting, 102 F.3d 516 (11th Cir. 1996). 29 CLE.R. § 1630.2(J),

Appendix. The existence of this rule is academic, however, because

(Cont'd)

8 NDLR 264 (7th Cir. 1996) wherein an employee who was sensitive to

environmental tobacco smoke pled sufficient facts to demonstrate a substantial

limitation in an activity other than working.

18

even with medication Pritchard presented substantial evidence that

she was significantly limited as described above.

In reaching its opinion, the court noted that Pritchard

experienced the above-described symptoms and resulting

limitations, for which Pritchard was still taking medication in June

1994. In acknowledging Pritchard’s evidence, the Eleventh Circuit

never held that the existence of Pritchard’s medication,

automatically meant that Pritchard was disabled. Rather, the court

simply held that even with the use of medication, Pritchard had

presented sufficient evidence to demonstrate an issue of material

fact.'° That was the extent of the court’s holding, and despite SCSI’s

mischaracterization of its ruling, there is simply no need for the

court to exercise jurisdiction regarding this issue."*

IV. THE ELEVENTH CIRCUIT’S FINDING THAT

SUFFICIENT EVIDENCE EXISTED TO DEMONSTRATE

A GENUINE ISSUE OF MATERIAL FACT REGARDING

SCSI’S PERCEPTION OF PRITCHARD AS DISABLED IS

CONSISTENT WITH THE ADA AND THE OPINIONS OF

OTHER CIRCUITS.

After reviewing the record, which included evidence that SCSI

continually refused to accommodate Pritchard by allowing her to

return to work, the Eleventh Circuit held that Pritchard had presented

sufficient evidence that SCSI perceived Pritchard as possessing a

15. Of course, it is a reasonable inference that without medication,

Pritchard's symptoms would be worse.

16. SCSI’s reliance on Chandler v. City of Dallas, 2 F.3d 1385 (Sth Cir.

1993) is misplaced. In Chandler, unlike here, plaintiff testified that as a result of

taking insulin that he experienced no limitation in a major life activity. Moreover,

the Fifth Circuit in Chandler, specifically declined to determine whether a person

with a disability who was dependant on insulin was “per se” disabled under the

ADA. 2 F.3d at 1391. Roth v. Lutheran General Hospital, 57 F.3d 1446 (7th Cir.

1995) merely restates the general rule regarding mitigating measures with which

Pritchard has no quarrel.

19

disability and/or that she had a record of such, to create a genuine

issue of material fact on these points. Again, SCSI attempts to

confuse the record by overstating the court’s ruling and neglecting

to mention the standard imposed upon the court by Fed. R. Civ. P.

56.

In reaching its conclusion, the Eleventh Circuit’s opinion is

entirely consistent with the ADA’s statutory language, its legislative

history and the decisions of other Circuits. Contrary to SCSI’s

characterization of the court’s opinion, the Eleventh Circuit never

held that “leave alone” automatically establishes a perception of

a disability.

In addition to protecting persons who actually have a disability,

the ADA also protects persons with a record of an impairment or

those who are perceived as impaired. 42 U.S.C. § 12102(2)."’ School

Board of Nassau County, Fla. v. Arline, supra. Indeed, Congress

intended that discrimination would include an employer’s decision

to deny an employee a particular job based on the fact that the

employer regarded the employee as having a disability. H.R. Rep.

No. 101-485, Part 3, 101st Cong., 2nd Sess. 30 (1990). It is not

necessary for an employee to demonstrate that she unsuccessfully

sought a myriad of jobs. According to both the ADA’s legislative

history, and the EEOC’s Interpretive Guidance, the “regarded as”

test will be satisfied if, “an employer makes an employment decision

based on a myth, fear, or stereotype.” If an employer cannot

articulate a non-discriminatory reason for the employment action,

an inference that the employer is acting on the basis of “myth, fear

or sterotype” can be drawn. 29 C.F.R. § 1630(L), Appendix. See

also Tucker and Goldstein, Legal Rights of Persons With

17. Having a record of a disability includes having a history of such. 29

C.F.R. § 1630.2(K). Persons are “regarded as having an impairment if they are

treated .. . as if they were handicapped — regardless of their actual condition.”

Harris v. Thigpen, 941 F.2d 1495, 1524 (11th Cir. 1991). Congress acknowledges

that some impairments are disabling due to the attitude of others. Muller v. Hotsy

Corp., 917 F. Supp. 1389 (N.D. Iowa 1996).

20

Disabilities: An Analysis of Federal Law, L.R.P. Publications, 1993.

Further, if an employer’s rationale, as is true here, tends to

demonstrate the employer’s belief that an employee is unable to

perform a wide range of positions, then the employee is entitled to

the ADA’s protection."* The legislative history also states that an

employee does not have to prove that an employer’s belief is wrong.

EEOC Compliance Manual § 915.002 at p. 44.

The importance of recognizing these additional categories of

disabilities was underscored in School Board of Nassau County,

Fla. v. Arline, supra, wherein this Court held that these categories

served as important public policy considerations as the perception

of others can be as stigmatizing as an actual impairment.

Significantly, this Court also found that an individual who

experienced a hospitalization for tuberculosis had a record of an

impairment. Consequently, the Eleventh Circuit’s holding is

consistent with Arline.

Pritchard was first granted leave at her own request in April

1992. There is no dispute that she was unable to perform in any

position until her doctor released her to return to work, with

restrictions, in January 1993. However, SCSI ignores the fact that

it was SCSI who required Pritchard to remain on unpaid

disability leave for approximately five (5) additional months

after her release, and that it terminated her, despite Pritchard’s

continued request to transfer to a position for which she was

qualified. Although, SCSI tries to characterize the entire leave period

18. The correct analysis regarding this aspect is in the attitudes of others.

See Muller v. Hotsy Corp., supra, where the court found an issue of fact based

on, inter alia, the employer's testimony that it regarded the employee as disabled

and that it refused to allow Muller to perform in a variety of positions. Likewise,

in Cook v. Rhode Island Dept. of MHRH, 10 F.3d 17 (ist Cir. 1993) an employee

was covered by the ADA not because she actually had a disability which

substantially limited a major life activity, but because the employer believed that

the employee’s obesity prevented her from performing certain job duties. See

also McGinnis v. Wonder Chemical Co., 7 NDLR 290 (E.D. Pa. 1995).

21

as being at the request of Pritchard, the records clearly states that

from January 1993 until the present, Pritchard did not want to be

on unpaid leave; she wanted to work.

SCSI attempts to characterize the Eleventh Circuit’s opinion

as holding that leave automatically demonstrates that an employer

perceives a disability, even if an employer is simply “acquiescing”

to an employee’s request. Not only is this mischaracterization

contrary to a plain reading of the court’s decision, it also ignores

the record. Rather, after reviewing the record and consistent with

Fed. R. Civ. P. 56(f), the court held only that the above evidence

raised a genuine issue of material fact on SCSI’s perception of

Pritchard as disabled. No where in its decision did it find Pritchard’s

leave automatically established the existence of a disability, and

SCSI’s description of the Eleventh Circuit’s holding can be read

only as an attempt to create an issue for review where none exists.

Moreover, Pritchard is not arguing that her perception of herself

is controlling, nor can the court’s decision be read in this manner.

Again, SCSI ignores the extensive evidence that it was the

employer who refused to allow Pritchard to transfer to any

position, due to SCSI’s perception that Pritchard’s restrictions

prevented her from performing the essential functions of any

job within the company. Further, Prince and Welliver expressly

testified that Pritchard’s disabilities interfered with Pritchard’s

ability to work, and that she was “covered” by the ADA.

SCSI’s reliance on Gray v. Ameritech Corp., 937 F. Supp. 762

(N.D. Ill. 1996) to create a split in the Circuits, is astonishing, first

as it is only a District Court decision, and second, as the court in

Gray ultimately found sufficient evidence to create a factual issue

on Gray’s employer’s perception. Further, its holding is

distinguishable from Pritchard, to the extent that it was the

employee who requested the entire period of disability leave and

her employer accommodated her by allowing her to return to work.

22

Unlike here, there was no evidence that Gray’s employer believed

Gray to be so disabled to prevent her from working in any position."

Moreover, SCSI cannot realistically argue that SCSI thought

only that Pritchard could not do one specific job. Indeed, SCSI

terminated Pritchard because it perceived that her restrictions

prevented her from performing the duties of any position, due to

SCSI’s insistence that all engineers have the ability to accept such

assignments. As stated in the EEOC Compliance Manual, an

employer’s “actions may speak louder than words.” EEOC

Compliance Manual § 915.002 at p. 46.

Additionally, Pritchard obviously had a record of major clinical

depression and she also, has a history of the condition, having been

so medically diagnosed, and having received continuous treatment

for depression until the time of her termination. See EEOC

Enforcement Guidance.

SCSI’s reliance on Byrne v. Board of Education School of West

Allis-West Milwaukee, 979 F.2d 560 (7th Cir. 1992) is interesting,

as its holding, too, tends to support Pritchard’s position. Although

Byrne failed to convince a jury she suffered discrimination, the

court’s final holding was that plaintiff had presented sufficient

evidence that she had: (1) a disability; (2) a record of such; and (3)

was so perceived, to enable those issue to be presented to a jury.

During plaintiff's post-trial motion for directed verdict, the court

reviewed ali evidence in the light most favorable to the nonmovant,

and stated that it would reverse only if no genuine issue of material

fact existed and plaintiff was entitled to judgment. Of course, this

is not the standard employed with Pritchard, where Pritchard argued

19. Likewise, Pritchard has no quarrel with SCSI’s assertion that the

definition of disability varies under different statutes or that some employees

who have taken leave may not be disabled. Such does not undercut Pritchard’s

assertions, however, that the totality of the record demonstrates sufficient evidence

that SCSI perceived her as disabled to avoid summary judgment.

23

that her evidence, when viewed most favorably to her, created an

issue of fact.”

Further, in arguing that Pritchard conflicts with the Seventh

Circuit, SCSI again neglects to mention Best v. Shell Oil Co., supra,

wherein the Seventh Circuit found an issue as to Shell’s perception

when Shell placed Best on disability leave and would not let him

work. The holding in Best, thus, defeats SCSI’s argument that there

is a split in the Circuits.

Contrary to SCSI’s assertion, the Eleventh Circuit’s decision

is also consistent with other courts which have denied summary

judgment when, as here, a factual issue exists regarding whether

an employer perceived an employee to have a disability. This is

especially true where an employer’s perception has caused it to

limit an employee’s job duties. See McGinnis v. Wonder Chemical

Co., 1995 U.S. Dist. LEXIS 18909 (E.D. Pa. 1995) (The court found

an issue of fact existed wherein an employer refused to allow an

employee who had been out on leave to return to work with

restrictions). See also EEOC v. Joslyn Manufacturing Co.,8 NDLR

199 (E.D. Ill. 1996) (The court found that an issue of material fact

existed when an employer restricted an employee with carpal tunnel

syndrome from performing in a number of positions. The test to

determine perception is highly individualized.); Stradley v.

LaFourche Communications, Inc., 869 F. Supp. 442 (E.D. La. 1994)

(The court found summary judgment inappropriate where sufficient

evidence existed that the employer accepted an employee’s doctor’s

diagnosis of depression and perceived plaintiff as limited in her

ability to work); Sigurdson v. Carl Bolander & Sons, 511 N.W. 2d

20. Other cases relied upon by SCSI are also not on point. In Stewart v.

County of Brown, AD cases BNA 1018 (7th Cir. 1996) the reason plaintiff was

transferred was due to performance problems and plaintiff failed to offer any

evidence of pretext. Moreover, the employer allowed plaintiff to return to work

after being cleared by the doctors. Finally, Stewart, himself, agreed with the lack

of evidence relating to perception and acknowledged that the dispute between he

and his employer was a personality conflict. Kelly v. Drexel University, 94 F.3d

102 (3rd Cir. 1996) is also not controlling as plaintiff's only evidence of a disability

was that he had a visible limp.

24

482 (Minn. Ct. App. 1994) (sufficient evidence existed to

demonstrated that Sigurdson was perceived by his employer as

being disabled when his employer denied him a job because of his

diabetes); Zambelli v. Historic Landmarks, Inc.,6 NDLR 194 (E.D.

Pa. 1995) (the court denied summary judgment wherein plaintiff

presented “a chain of circumstantial evidence” that her employer

believed she had a disability); Runnebaum v. Nationsbank of

Maryland, N.A., supra (an employer’s knowledge that Runnebaum

who was asymptomatic, was HIV positive, and was taking

medication to control the fatal condition, was sufficient evidence

to support an inference of perceived disability); Roe v. District of

Columbia, 842 F. Supp. 563, 568 (D.D.C. 1993) (the court found

that an employer who restricted a firefighter from performing

specific “uties as a result of his HIV status was “regarded as” having

a handicap. Defendant's argument that he did not regard plaintiff

as having an impairment was “difficult to understand and impossible

to accept”); Overturf v. Penn Ventilater Co., Inc., 8 NDLR 196

(E.D. Pa. 1996) (wherein the court found an issue of fact based on

an employer’s statements to plaintiff about her health.)

In conclusion, this Court should not exercise jurisdiction over

SCSI’s petition, as no valid reason exists for doing so. SCSI has

mischaracterized the Eleventh Circuit’s ruling in an attempt to create

non-existent issues in an “last ditch” effort to appeal. The reality is

that the Eleventh Circuit’s decision is consistent with the case law

in other Circuits and the plain language of the ADA.

V. THE ELEVENTH CIRCUIT PROPERLY REMANDED

PRITCHARD AS NO ALTERNATIVE GROUNDS

EXISTED FOR AFFIRMING SUMMARY JUDGMENT.

The Eleventh Circuit properly remanded Pritchard as no

alternative grounds existed for affirming summary judgment.

Indeed, Pritchard presented significant evidence that she was

qualified to perform the essential functions of several positions to

which she could have transferred. 42 U.S.C. § 12111(8). Pritchard

also presented substantial evidence that SCSI failed to accommodate

her by refusing to transfer her to any number of vacant positions to

25

which she was qualified, and instead terminating her based on her

disability. The Eleventh Circuit correctly stated that the controversy

regarding whether all engineers must have the flexibility to accept

nuclear work would have to be resolved by a jury. (See footnote 1.)

Further, the court stated that a failure to provide a reasonable

accommodation by way of a transfer can constitute discrimination.

42 U.S.C. § 12112. (See footnote 5.) At the very least, several

genuine issues of material fact exist on these points, making remand

appropriate.

CONCLUSION

Based on the foregoing, Respondent Pritchard respectfully

requests that this Honorable Court deny the Petition for Writ of

Certiorari and remand the case for trial.

Respectfully submitted,

DEBORAH A. MATTISON

Counsel of Record

SANDRA B. REISS

GORDON, SILBERMAN,

WIGGINS & CHILDS

Attorneys for Respondent

1400 SouthTrust Tower

420 North 20th Street

Birmingham, Alabama 35203

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