Filed: Mar. 12, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2212 CHRISTINA LYNN JACOBS, Plaintiff - Appellant, v. N.C. ADMINISTRATIVE OFFICE OF THE COURTS; JAN KENNEDY, in her official capacity as New Hanover County Clerk of Superior Court, Defendants – Appellees, and BRENDA TUCKER, New Hanover County Clerk of Superior Court; MELISSA GRIFFIN; DEBRA EXCELL, Defendants. - THE NATIONAL DISABILITY RIGHTS NETWORK; NATIONAL ALLIANCE ON MENTAL ILLNESS NORTH CAROLINA; THE BAZELON CENTER FOR M
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2212 CHRISTINA LYNN JACOBS, Plaintiff - Appellant, v. N.C. ADMINISTRATIVE OFFICE OF THE COURTS; JAN KENNEDY, in her official capacity as New Hanover County Clerk of Superior Court, Defendants – Appellees, and BRENDA TUCKER, New Hanover County Clerk of Superior Court; MELISSA GRIFFIN; DEBRA EXCELL, Defendants. - THE NATIONAL DISABILITY RIGHTS NETWORK; NATIONAL ALLIANCE ON MENTAL ILLNESS NORTH CAROLINA; THE BAZELON CENTER FOR ME..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2212
CHRISTINA LYNN JACOBS,
Plaintiff - Appellant,
v.
N.C. ADMINISTRATIVE OFFICE OF THE COURTS; JAN KENNEDY, in
her official capacity as New Hanover County Clerk of
Superior Court,
Defendants – Appellees,
and
BRENDA TUCKER, New Hanover County Clerk of Superior Court;
MELISSA GRIFFIN; DEBRA EXCELL,
Defendants.
-------------------------
THE NATIONAL DISABILITY RIGHTS NETWORK; NATIONAL ALLIANCE ON
MENTAL ILLNESS NORTH CAROLINA; THE BAZELON CENTER FOR MENTAL
HEALTH LAW; MENTAL HEALTH AMERICA; NATIONAL ALLIANCE ON
MENTAL ILLNESS,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:11-cv-00169-BO)
Argued: December 9, 2014 Decided: March 12, 2015
Before KEENAN, FLOYD, and HARRIS, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Floyd wrote the opinion, in which Judge Keenan
and Judge Harris joined.
ARGUED: Vanessa Katherine Lucas, EDELSTEIN & PAYNE, Raleigh,
North Carolina, for Appellant. Kathryn Hicks Shields, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees. ON BRIEF: Lisa Grafstein, Mercedes Restucha-Klem,
DISABILITY RIGHTS NORTH CAROLINA, Raleigh, North Carolina, for
Appellant. Roy Cooper, North Carolina Attorney General, Grady
L. Balentine, Jr., Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees. Brian East, DISABILITY RIGHTS TEXAS, Austin, Texas,
for Amici Curiae.
2
FLOYD, Circuit Judge
Christina Jacobs worked as a deputy clerk at a courthouse
in New Hanover County, North Carolina. Although she allegedly
suffered from social anxiety disorder, her employer assigned her
to provide customer service at the courthouse front counter.
Believing that her mental illness hindered her ability to
perform this inherently social task, Jacobs requested an
accommodation--to be assigned to a role with less direct
interpersonal interaction. Her employer waited three weeks
without acting on her request and then terminated her.
Jacobs brought suit against her employer under the
Americans with Disabilities Act (ADA). The district court
granted summary judgment to the employer on all counts. Because
the district court erred by resolving disputed facts in favor of
the movant and for the reasons that follow, we reverse the grant
of summary judgment in part and remand for trial.
I.
Christina Jacobs has suffered from mental illness since
childhood. 1 At ten, Jacobs was diagnosed with severe situational
1
In reviewing de novo the district court’s order granting
summary judgment to the North Carolina Administrative Office of
the Courts, we “view the facts and all justifiable inferences
arising therefrom in the light most favorable to” Jacobs, as the
nonmoving party. Libertarian Party of Va. v. Judd, 718 F.3d
3
performance anxiety. At twelve, she was hospitalized for
several days after threatening harm to herself and others.
During her hospitalization she was diagnosed with mood disorder
and selective mutism, and prescribed antidepressants. At the
age of 18, she received an additional diagnosis of social
anxiety disorder for which she has been treated intermittently
by several physicians.
Social anxiety disorder is characterized by a “marked and
persistent fear of . . . social or performance situations in
which [a] person is exposed to unfamiliar people or to possible
scrutiny by others.” Am. Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 456 (4th ed. 2000)
[hereinafter DSM-IV]. 2 A person suffering from social anxiety
disorder either “avoid[s]” the feared social or performance
situations, or “endure[s them] with intense anxiety or
distress.” Id. A person can only be diagnosed with social
anxiety disorder when the “avoidance, anxious anticipation, or
distress in the feared social or performance situation(s)
interferes significantly with the person’s normal routine,
occupational . . . functioning, or social activities or
308, 312 (4th Cir. 2013). The following statement of facts
conforms to this standard.
2
We take judicial notice of the DSM-IV (and not the current
DSM-V) because the expert witnesses in this case applied the
diagnostic criteria of the DSM-IV. Fed. R. Evid. 201.
4
relationships . . . .” Id. The American Psychiatric
Association (APA) notes that social anxiety disorder can create
a “vicious cycle of anticipatory anxiety leading to fearful
cognition and anxiety . . . , which leads to actual or perceived
poor performance . . . , which leads to embarrassment and
increased anticipatory anxiety . . . .”
Id. at 451. “A job
promotion to a position requiring public speaking may result in
the emergence of [social anxiety disorder] in someone who
previously never needed to speak in public.”
Id. at 453.
In January 2009, Jacobs was hired by Brenda Tucker, the
elected clerk of court, as an office assistant in the criminal
division of the North Carolina Administrative Office of the
Courts (AOC). As an office assistant, Jacobs’s job duties
included microfilming and filing. Less than a month after
Jacobs started working, Tucker promoted her to the position of
deputy clerk. 3
At the time of Jacobs’s employment, 30 total deputy clerks
worked in the criminal division. Four or five of the deputy
clerks provided customer service at the division’s front
counter. The remaining deputy clerks performed other filing and
record-keeping tasks, many of which do not require face-to-face
3
It is undisputed that at the time of her promotion Jacobs
met or exceeded the minimum eligibility requirements for the
position.
5
interaction with the public. 4 AOC supervisors typically assigned
the most junior deputy clerks to the front counter. However,
all deputy clerks--regardless of assignment and seniority--had
the same title and job description.
In March 2009, Jacobs began training to work at the front
counter. She was assigned to work four days a week at the front
counter and one day a week microfilming. Jacobs soon began to
experience extreme stress, nervousness, and panic attacks while
working at the front counter. She became particularly panicked
when she was asked a question to which she did not immediately
know the answer--a common occurrence when working behind the
counter. She attributed these symptoms to her diagnosed social
anxiety disorder.
On or about May 5, 2009, Jacobs went to a supervisor, Debra
Excell, and told Excell that she had social anxiety disorder and
was not feeling healthy while working at the front counter.
Jacobs told Excell that she had received treatment (including
medication) for mental health issues while in college, but that
she was not currently under a doctor’s care. Excell encouraged
Jacobs to seek treatment from the doctor who had helped her in
4
For example, disposition and continuance clerks work
primarily on the computer and do not provide direct customer
service.
6
college. After her meeting with Excell, Jacobs went to a doctor
and began receiving treatment for anxiety and depression.
Excell subsequently told Tucker about her conversation with
Jacobs. Tucker took handwritten notes on Excell’s oral account
of her conversation with Jacobs, which included the phrases “too
stressful,” “nerve issues,” “anxiety disorder,” and “might have
to go back to [the doctor].” J.A. 823. Tucker’s assistant
placed the notes in Jacobs’s personnel file.
During the course of her employment, Jacobs was never
written up for any disciplinary infraction or performance issue.
There are no notes in her personnel file indicating any problems
with her performance. Yet the AOC now alleges, inter alia, that
Jacobs was a slow worker, impermissibly disclosed information to
members of the public, and had outbursts with coworkers and
supervisors. The AOC has produced no documentary evidence (such
as e-mails) corroborating these allegations.
On September 8, 2009, Jacobs sent an e-mail to her three
immediate supervisors (Excell, Jan Kennedy, and Melissa Griffin)
in which she disclosed her disability for a second time and
requested an accommodation. Specifically, Jacobs requested that
she be “trained to fill a different role in the Clerk’s Office
and perhaps work at the front counter only once a week.” J.A.
798. The next day, Jacobs followed up in person with Kennedy.
Kennedy told Jacobs that only Tucker had the power to act on
7
Jacobs’s request and, because Tucker was currently on a three-
week vacation, Jacobs would have to wait until Tucker returned.
Soon after her meeting with Kennedy, Jacobs forwarded her e-mail
request to Tucker.
While she was waiting for Tucker to return and address her
accommodation request, Jacobs sought to use some accrued leave.
Kennedy questioned Jacobs about why she wanted leave and denied
her request. Jacobs’s previous leave requests were not
questioned and had always been approved.
Tucker alleges that while she was on vacation, she did not
check her e-mail and asked to be called only in the event of an
emergency. She allegedly received a call from her assistant,
Alice Radewicz, informing her that Jacobs had been spotted
sleeping at her desk. Tucker testified that this was the only
call she received during her three-week absence.
Upon returning to the office on September 29, 2009, Tucker
called Jacobs into her office for a meeting. Excell, Kennedy,
and Griffin were already in Tucker’s office when Jacobs arrived,
where they had just concluded a meeting regarding Jacobs.
Jacobs also saw a copy of her e-mail requesting an accommodation
on Tucker’s desk, annotated in someone’s handwriting. Tucker
later testified that she had written the notes on the e-mail
printout. Jacobs assumed that the meeting was about her request
8
for an accommodation and recorded the meeting on a small
personal audio recorder.
Jacobs told Tucker that she had wanted to meet regarding
“just what the e-mail said.” 5 J.A. 827. Tucker did not inquire
as to what e-mail Jacobs was referring. Instead, she told
Jacobs that she was being fired because she was not “getting it”
and Tucker did not “have any place [that she could] use
[Jacobs’s] services.” Id. She did not mention Jacobs’s alleged
sleeping on the job. When Jacobs asked Tucker whether she was
being fired “because of the e-mail,” Tucker responded that “it
doesn’t have anything to do with the e-mail.”
Id.
After her termination, Jacobs timely filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(EEOC). During the EEOC investigation, Tucker denied that she
knew of Jacobs’s disability and that she had read the e-mail
before deciding to terminate Jacobs. After Jacobs received a
favorable determination from the EEOC, the Department of Justice
issued a Right to Sue letter.
Jacobs then timely filed suit against the AOC and against
Jan Kennedy (Tucker’s successor) in her official capacity as
clerk of court. Jacobs’s amended complaint alleges five causes
5
All quotations are to Jacobs’s recording of the
termination meeting on page 827 of the joint appendix, and not
to Jacobs’s transcription of the recording.
9
6
of action, three of which are pertinent to this appeal: (i)
disability discrimination under the ADA; (ii) failure to provide
a reasonable accommodation under the ADA; and (iii) retaliation
under the ADA. 7 The district court had jurisdiction pursuant to
28 U.S.C. § 1331.
In a brief opinion, the district court granted the AOC’s
motion for summary judgment. Jacobs v. N.C. Admin. Office of
the Courts, No. 7:11-CV-169-BO, 2013 WL 4736171, at *1 (E.D.N.C.
Sept. 3, 2013). Although the AOC conceded for summary-judgment
purposes that Jacobs had a disability, the district court found
that Jacobs was not disabled as a matter of law and that she had
6
Jacobs’s complaint also alleged that the AOC committed a
per se violation of the ADA by commingling her medical records
with her personnel file. The district court granted summary
judgment because the ostensible “medical records” were
voluntarily provided by Jacobs. Jacobs does not appeal the
grant of summary judgment on this claim, and we therefore save
the question of whether the ADA’s confidentiality provisions
apply to the voluntary disclosure of disability for another day.
7
Jacobs purports to appeal two other causes of action:
discrimination and retaliation under Section 504 of the
Rehabilitation Act (29 U.S.C. § 794); and wrongful discharge in
violation of North Carolina public policy. However, Jacobs
failed to discuss these claims (except in passing) in the
argument section of her opening brief, contrary to the
requirement of Rule 28(a)(8)(A) of the Federal Rules of
Appellate Procedure that the brief contain “appellant's
contentions and the reasons for them.” Specifically, she did
not challenge the district court’s finding that “stating a claim
under the Rehabilitation Act is more difficult” than under the
ADA. J.A. 1039. We therefore find that Jacobs has abandoned
these claims on appeal. Sandlands C & D LLC v. Cnty. of Horry,
737 F.3d 45, 51 n.4 (4th Cir. 2013); Edwards v. City of
Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999).
10
therefore failed to establish a prima facie case of disability
discrimination and failure to grant a reasonable accommodation.
Id. at *3. The district court also found that there was no
evidence in the record that Tucker knew of Jacobs’s request for
an accommodation at the time she decided to fire Jacobs, and
that Jacobs therefore failed to establish a prima facie case of
retaliation.
Id.
The district court entered judgment against Jacobs on
September 3, 2013. Jacobs timely appealed. We have
jurisdiction over final judgments of the district court pursuant
to 28 U.S.C. § 1291.
II.
A.
Ordinarily we would begin our discussion with a brief
restatement of the standard of review for a motion for summary
judgment. When “the opinion below reflects a clear
misapprehension of summary judgment standards,” however, further
elaboration is warranted. Tolan v. Cotton, 134 S. Ct. 1861,
1868 (2014) (per curiam). A district court “shall grant summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine
if ‘a reasonable jury could return a verdict for the nonmoving
11
party.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am.,
673
F.3d 323, 330 (4th Cir. 2012)). “A fact is material if it
‘might affect the outcome of the suit under the governing law.’”
Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986)).
In considering a motion for summary judgment, the district
court must “view the evidence ‘in the light most favorable to
the’” nonmoving party. Tolan, 134 S. Ct. at 1866 (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
“Summary judgment cannot be granted merely because the court
believes that the movant will prevail if the action is tried on
the merits.” 10A Charles Alan Wright & Arthur R. Miller et al.,
Federal Practice & Procedure § 2728 (3d ed. 1998). 8 The court
therefore cannot weigh the evidence or make credibility
determinations. Mercantile Peninsula Bank v. French (In re
French),
499 F.3d 345, 352 (4th Cir. 2007) (citing
Anderson, 477
U.S. at 255); see also Fed. R. Civ. P. 56 Advisory Committee’s
Note (1963) (“ Where an issue as to a material fact cannot be
resolved without observation of the demeanor of witnesses in
8
As Professor Arthur Miller noted recently, “a motion
designed simply for identifying trial-worthy issues has become,
on occasion, a vehicle for resolving trial-worthy issues.”
Arthur R. Miller, Simplified Pleading, Meaningful Days in Court,
and Trials on the Merits: Reflections on the Deformation of
Federal Procedure, 88 N.Y.U. L. Rev. 286, 312 (2013).
12
order to evaluate their credibility, summary judgment is not
appropriate.”).
The Supreme Court recently granted certiorari and issued a
decision in a seemingly routine summary judgment case because
the lower court had “fail[ed] to credit evidence that
contradicted some of its key factual conclusions” and
“improperly ‘weighed the evidence’ and resolved disputed issues
in favor of the moving party.” Tolan, 134 S. Ct. at 1866
(brackets omitted) (quoting Anderson, 477 U.S. at 249).
Specifically, the court of appeals (affirming the district
court) repeatedly failed to credit the testimony of the
plaintiff and members of his immediate family, which often
contradicted the court’s statement of the “central facts” of the
case.
Id. at 1866–67. Because the court of appeals “weigh[ed]
the evidence and reach[ed] factual inferences contrary to [the
nonmovant’s] competent evidence,” the Supreme Court vacated the
court’s affirmance of the district court’s grant of summary
judgment.
Id. at 1868.
B.
In this case, as in Tolan, the district court erred by
failing to consider all of the evidence in the record. The
district court’s opinion also states the facts in the light most
favorable to the AOC--not Jacobs, the nonmovant. Strikingly,
13
both of the district court’s key factual findings--that Jacobs
was not disabled and that Tucker did not learn of Jacobs’s
accommodation request prior to terminating her--rest on factual
inferences contrary to Jacobs’s competent evidence. The
district court thus improperly resolved factual issues at the
summary judgment stage, in contravention of well-settled law.
We discuss these errors in turn.
1.
We begin by noting several examples of the district court’s
misapplication of the summary judgment standard in its
recitation of the facts.
First, the district court stated that Jacobs “had what was
described as a ‘melt-down’ with a co-worker . . . [that] caused
a disruption in the office . . . .” J.A. 1034. However, the
co-worker allegedly involved in the outburst denied that it ever
occurred. The AOC witnesses who testified regarding the alleged
outburst did not directly witness it and could not recall how
they had learned about it.
Second, the district court accepted the AOC’s
characterization of Jacobs’s May 5 meeting with Excell: “[T]he
plaintiff told Debra Excell that she was having social issues
and was nervous about working at the front counter.” Id.
(emphasis added). Jacobs testified that she told Excell she had
14
social anxiety disorder--not mere “social issues.” Tucker’s
handwritten notes on her conversation with Excell regarding this
meeting, in which she wrote the words “anxiety disorder,”
support Jacobs’s account of the conversation.
Third, the district court stated as an undisputed fact that
Jacobs “did not tell anyone she was disabled” in April or May of
2009. Id. This is inconsistent with the testimony of Jacobs,
Excell, and Tucker, who all agreed that Jacobs told Excell she
had anxiety issues that were impacting her work and for which
she had received medical treatment in the past.
Fourth and finally, the district court adopted the AOC’s
erroneous contention that its expert witness failed to examine
Jacobs because Jacobs did not consent to be examined. See J.A.
1035 (“[T]his was done in lieu of examining the plaintiff
personally because she refused to submit to such an evaluation.”
(emphasis added)). As the record makes clear, the AOC never
brought a motion for mental examination under Rule 35 of the
Federal Rules of Civil Procedure and did not respond to the
offer by Jacobs’s counsel to proceed with such an examination
without motion.
Considering the order in its entirety, we conclude that the
district court impermissibly “credited the evidence of the party
seeking summary judgment and failed properly to acknowledge key
15
evidence offered by the party opposing that motion.” Tolan, 134
S. Ct. at 1867–68. This was error.
2.
The district court also erred by concluding that Jacobs was
not disabled within the meaning of the ADA. During the course
of discovery both parties produced expert testimony by mental
health specialists on this issue. After examining Jacobs,
forensic psychologist Dr. Claudia Coleman concluded that “her
mental disorders, Social Phobia and Anxiety Disorder, . . .
constitute a disability as defined by the [ADA].” J.A. 807.
Forensic psychiatrist Dr. George Corvin, the AOC’s expert, did
not examine Jacobs. Instead, Dr. Corvin based his report on a
review of her medical records, social media use, employment
records, and the report of a private investigator who observed
Jacobs while she was at work at a new job. Dr. Corvin concluded
that it was possible that Jacobs met the diagnostic criteria for
social anxiety disorder but that “her medical records alone are
insufficient to establish such a diagnosis.” J.A. 222. He also
determined from the private investigator’s report that Jacobs
was currently succeeding in a new customer service job, and
thereby inferred that she had not experienced “any significant
level of anxiety or other psychiatric impairment” while working
at the AOC. Id.
16
The district court determined from “Dr. Corvin’s report and
the plaintiff’s behavior [at] work” that Jacobs was not
disabled. J.A. 1038. Inexplicably, the district court omits
any mention of Dr. Coleman’s conflicting report. Additionally,
Dr. Corvin’s report simply does not support the district court’s
finding of no disability--rather, Dr. Corvin concluded only that
Jacobs’s medical records were equivocal on this question.
As in Tolan, the district court “neglected to adhere to the
fundamental principle that at the summary judgment stage,
reasonable inferences should be drawn in favor of the nonmoving
party.” 134 S. Ct. at 1868. Rather, the court incorrectly drew
all inferences in favor of the AOC, not Jacobs. We therefore
reverse the district court’s determination that there is no
genuine dispute as to whether Jacobs had a disability.
3.
The district court also determined that “there is no
evidence that Ms. Tucker knew that the plaintiff had requested
an accommodation at the time she made the decision to terminate
her.” J.A. 1038 (emphasis added). This finding has no basis in
the record.
Rather, the record taken in the light most favorable to
Jacobs demonstrates just the opposite. It is undisputed that
Jacobs e-mailed her request for an accommodation to Tucker on
17
September 9, 2009. Jacobs also e-mailed her request to her
immediate supervisors, and discussed her request in person with
Kennedy. Kennedy told Jacobs that she could not act on Jacobs’s
request without discussing it first with Tucker. Upon returning
to the office on September 29, Tucker held a meeting with
Jacobs’s immediate supervisors--Kennedy, Excell, and Griffin.
Kennedy testified that the supervisors discussed Jacobs during
this meeting. Tucker then called Jacobs into the meeting, and
summarily fired her in front of Kennedy, Excell, and Griffin. A
reasonable jury could infer from these facts that before Jacobs
walked in, any or all of Jacobs’s supervisors would have
discussed the accommodation request e-mail.
The record taken in the light most favorable to Jacobs also
demonstrates that Tucker read the e-mail before firing Jacobs.
When Jacobs entered Tucker’s office she saw an annotated copy of
her request for accommodation sitting on Tucker’s desk. Tucker
admits to having annotated the e-mail but testified that she did
so only after the meeting. Tucker cannot remember when she
printed the e-mail but testified that it may have been during
the meeting and that she first read the e-mail during the
meeting. This account is inconsistent with the audio recording
of the meeting, which a reasonable jury could find does not
contain any pauses long enough to account for Tucker finding and
18
printing the e-mail. A reasonable jury could credit Jacobs’s
testimony over Tucker’s on this factual question.
Finally, Tucker’s statements during the termination meeting
indicate that she knew about Jacobs’s accommodation request. At
the beginning of the meeting, Jacobs said she wanted to discuss
“just what the e-mail said.” J.A. 827. Tucker did not ask to
what e-mail Jacobs was referring. Instead, Tucker told Jacobs
that, at the time of her hiring, Jacobs “expressed [she] would
be able to handle all of that [i.e., front counter work], that
it wouldn’t be problematic for you.” Id. Tucker added, “I
don’t have any place that I can use your services.”
Id. If
Tucker had called the meeting without knowledge of the
accommodation request, it is unlikely that she would have
addressed the possibility of reassigning Jacobs. Moreover, when
Jacobs asked whether she was being fired “because of the e-
mail,” Tucker responded that “it doesn’t have anything to do
with the e-mail.”
Id. If Tucker were truly unaware of the
contents of the e-mail, it is unlikely that she would have
answered the question in this way.
A reasonable jury could infer from Jacobs’s, Tucker’s, and
Kennedy’s testimony and from the recording of the conversation
that Tucker knew about Jacobs’s accommodation request at the
time she decided to terminate Jacobs. Accordingly, we reverse
the district court’s determination to the contrary.
19
III.
Merely concluding that disputed issues of fact exist as to
whether Jacobs was disabled and whether Tucker knew about her
accommodation request does not end our inquiry. Rather, we must
also decide whether disputed issues of fact exist as to elements
of each of Jacobs’s three claims: (i) disability discrimination;
(ii) retaliation; and (iii) failure to provide a reasonable
accommodation. We address each claim in turn.
A.
We first consider whether we should affirm summary judgment
on Jacobs’s disability discrimination claim.
To establish a claim for disability discrimination under
the ADA, a plaintiff must prove “(1) that she has a disability,
(2) that she is a ‘qualified individual’ for the employment in
question, and (3) that [her employer] discharged her (or took
other adverse employment action) because of her disability.”
EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir.
2000). Disability discrimination may be proven through direct
and indirect evidence or through the McDonnell Douglas burden-
shifting framework. 9 See Raytheon Co. v. Hernandez,
540 U.S. 44,
49–50 & n.3 (2003).
9
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).
20
1.
The AOC argues that Jacobs did not have a disability as a
10
matter of law. “Disability” is defined by the ADA as “a
physical or mental impairment that substantially limits one or
more major life activities.” 42 U.S.C. § 12102(1)(A). The ADA
provides a nonexhaustive list of major life activities,
including “speaking,” “concentrating,” “thinking,”
“communicating,” and “working.” Id. § 12102(2)(A). The EEOC
has also identified “interacting with others” as a major life
activity. 29 C.F.R. § 1630.2(i)(1)(i).
“In September 2008, Congress broadened the definition of
‘disability’ by enacting the ADA Amendments Act of 2008, Pub. L.
No. 110–325, 122 Stat. 3553 . . . .” Summers v. Altarum Inst.,
Corp., 740 F.3d 325, 329 (4th Cir. 2014). The ADA Amendments
Act (ADAAA) was intended to make it “easier for people with
disabilities to obtain protection under the ADA.” 29 C.F.R.
§ 1630.1(c)(4). The regulation clarifies that “[t]he primary
object of attention in cases brought under the ADA should be
whether covered entities have complied with their obligations
and whether discrimination has occurred, not whether the
individual meets the definition of disability.”
Id. “[T]he
10
As noted above, this argument is inconsistent with AOC’s
prior litigation position. J.A. 1027 (“For the sake of summary
judgment, Defendants have conceded that Plaintiff had a
disability.”).
21
question of whether an individual’s impairment is a disability
under the ADA should not demand extensive analysis.” Pub. L.
No. 110-325, § 2(b)(5) (2008). In enacting the ADAAA, Congress
abrogated earlier inconsistent caselaw. Summers, 740 F.3d at
331.
Jacobs alleges that her social anxiety disorder
substantially limited her ability to interact with others and
was therefore a disability. The AOC first argues that no
evidence in the record shows that Jacobs was suffering from
social anxiety disorder while employed as a deputy clerk. This
is clearly incorrect. As discussed above, the testimony of
Dr. Coleman suffices to establish a genuine dispute of fact on
this question.
The AOC next argues that Jacobs’s social anxiety disorder
did not substantially limit any major life activity because
“interacting with others” is not a major life activity. This
argument constitutes a challenge to the EEOC’s interpretation of
the ADA. See 29 C.F.R. § 1630.2(i)(1)(i) (identifying
“interacting with others” as a major life activity). We
therefore apply the familiar two-step Chevron analysis. 11 See
Jones v. Am. Postal Workers Union, 192 F.3d 417, 427 (4th Cir.
11
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984).
22
1999) (affording Chevron deference to the EEOC’s interpretation
of a Title VII provision expressly adopted by the ADA).
Under Chevron, we first ask whether Congress has “directly
spoken” to the precise question of whether interacting with
others is a major life activity. Summers, 740 F.3d at 331. By
its express language, the statute’s list of major life
activities is not exhaustive. 42 U.S.C. § 12102(2)(A) (“[M]ajor
life activities include, but are not limited to . . . .”
(emphasis added)). We therefore conclude that Congress has
deliberately left a gap for the agency to fill, and proceed to
Chevron’s second step--determining whether the EEOC’s regulation
is reasonable.
Summers, 740 F.3d at 331-32.
“The stated goal of the ADAAA is to expand the scope of
protection available under the Act as broadly as the text
permits.” Id. at 332. A major life activity is one that is “of
central importance to daily life.” Toyota Motor Mfg., Ky. Inc.
v. Williams,
534 U.S. 184, 197 (2002) (abrogated in part by the
ADAAA). Few activities are more central to the human condition
than interacting with others. If “bending” and “lifting” are
major life activities, 42 U.S.C. § 12102(2)(A), it is certainly
reasonable for the EEOC to conclude that interacting with others
falls in the same category. Identifying “interacting with
others” as a major life activity comparable to “caring for
oneself,” “speaking,” “learning,” and “communicating” advances
23
the broad remedial purpose of the ADA. We therefore defer to
the EEOC’s determination and hold that interacting with others
is a major life activity.
The AOC also argues that Jacobs has failed to show that her
alleged social anxiety disorder substantially limited her
ability to interact with others. Prior to the ADAAA, a
plaintiff seeking to prove disability needed to show that she
was “significantly restricted” in a major life activity. See,
e.g., Pollard v. High’s of Balt., Inc., 281 F.3d 462, 467 (4th
Cir. 2002). The ADAAA expressly rejected this rule as imposing
“too high a standard.” Pub. L. No. 110-325 § 2(a)(8). The
regulations define a substantially limiting impairment as one
that “substantially limits the ability of an individual to
perform a major life activity as compared to most people in the
12
general population.” 29 C.F.R. § 1630.2(j)(1)(ii). “An
impairment need not prevent, or significantly or severely
restrict, the individual from performing a major life activity
in order to be considered substantially limiting.” Id.
The AOC argues that Jacobs could not have been
substantially limited in interacting with others because she
12
Because both parties accept the EEOC regulations as
instructive, we assume without deciding that they are reasonable
and have no occasion to decide what level of deference, if any,
they are due. See Toyota, 534 U.S. at 194; Heiko v. Colombo
Sav. Bank, F.S.B.,
434 F.3d 249, 255 n.1 (4th Cir. 2006).
24
“interact[ed] with others on a daily basis,” “routinely answered
inquiries from the public at the front counter,” “socialized
with her co-workers outside of work,” and engaged in social
interaction on Facebook. Appellees’ Br. at 26, 29. The AOC
misapprehends both the meaning of “substantially limits” and the
nature of social anxiety disorder.
A person need not live as a hermit in order to be
“substantially limited” in interacting with others. According
to the APA, a person with social anxiety disorder will either
avoid social situations or “endure the social or performance
situation . . . with intense anxiety.” DSM-IV, supra, at 451. 13
Thus, the fact that Jacobs may have endured social situations
does not per se preclude a finding that she had social anxiety
disorder. Rather, Jacobs need only show she endured these
situations “with intense anxiety.”
Id. At a minimum, Jacobs’s
testimony that working the front counter caused her extreme
stress and panic attacks creates a disputed issue of fact on
14
this issue. Her testimony is also consistent with
13
We also note in passing that if Jacobs in fact took
longer than necessary to complete her microfilming work and
procrastinated in returning to the front desk (as the AOC
alleges), this may constitute avoidant behavior consistent with
a diagnosis of social anxiety disorder.
14
Although members of the public will not experience
intense anxiety and panic when asked a question by a stranger,
Jacobs alleges that working the front counter caused her extreme
stress and panic attacks. According to the DSM-IV, between 3%
25
Dr. Coleman’s testimony that Jacobs suffered from social anxiety
disorder within the meaning of the DSM-IV.
The undisputed facts that Jacobs spoke to coworkers and
attempted to perform her job at the front counter are therefore
not fatal to her claim. That she attended several outings with
coworkers in her nine months in the office is also hardly
dispositive--answering questions at the front counter
constitutes a performance situation that is different in
character from having lunch with coworkers, and a reasonable
jury may conclude that Jacobs’s allegedly debilitating anxiety
was specific to that situation. Finally, to the extent that
Jacobs’s Facebook activity constitutes a “mitigating measure”
(that is, a form of exposure therapy by which Jacobs attempted
to overcome her anxiety through social interaction that was not
face-to-face and not in real time) we are not permitted to
consider it in determining the existence of a substantial
limitation on her ability to interact with others. 42 U.S.C.
§ 12102(4)(E)(i). We therefore find that a reasonable jury
and 13% of people will experience social anxiety disorder at
some point in their life. DSM-IV, supra, at 453. Just 10% of
people who experience a fear of public speaking experience
enough impairment or distress to be diagnosed with social
anxiety disorder.
Id. We therefore conclude that social
anxiety disorder limits sufferers “as compared to most people in
the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).
26
could conclude that Jacobs was substantially limited in her
ability to interact with others and thus disabled within the
meaning of the ADA.
2.
We turn next to the second element of the prima facie case:
whether Jacobs has shown that she was a qualified individual for
the employment in question. The AOC argues that no reasonable
jury could find that, at the time of her discharge, Jacobs was
“performing her job at a level that met her employer’s
legitimate expectations.” See Ennis v. Nat’l Ass’n of Bus. &
Educ. Radio, Inc., 53 F.3d 55, 58, 61–62 (4th Cir. 1995)
(finding that summary judgment was appropriate when an employee
had received numerous negative performance evaluations and
written reprimands over three years, was suspended for poor
performance, and conceded that she was not a model employee and
made too many personal phone calls). The AOC supports this
argument with considerable testimony regarding Jacobs’s
shortcomings as an employee.
Jacobs responds by denying these allegations and noting
that she was promoted to the position of deputy clerk after only
a month on the job. She further argues that she never received
a negative performance review, evaluation, or written warning,
and that the AOC’s testimony could be discredited at trial as
27
inconsistent and contradictory. Cf. EEOC v. Sears Roebuck &
Co., 243 F.3d 846, 852–53 (4th Cir. 2001) (holding that an
employer’s provision of shifting and inconsistent justifications
for taking an adverse employment action “is, in and of itself,
probative of pretext”). For example, AOC witnesses testified
that Ashley English, an AOC employee, told them about Jacobs’s
performance issues and inappropriate outbursts. English,
however, testified that she never discussed Jacobs’s performance
with the AOC witnesses and that Jacobs never had an
inappropriate outburst. From these inconsistencies and the
total lack of documentary evidence of Jacobs’s alleged poor
performance, a reasonable jury could conclude that Jacobs was
qualified for the position of deputy clerk.
3.
Disputed issues of material fact also exist as to the third
element of the prima facie case--causation. The AOC argues that
Jacobs cannot prove causation because no reasonable jury could
find that Tucker knew of Jacobs’s disability at the time Jacobs
was terminated. We disagree.
First, the note Tucker placed in Jacobs’s personnel file
demonstrates that Tucker was aware as early as May 5, 2009 (more
than three months before the termination) that Jacobs had “nerve
issues,” an “anxiety disorder,” and that she “might have to go
28
back to [the doctor].” J.A. 823. Second, just before firing
Jacobs, Tucker met with the three supervisors who had received
Jacobs’s e-mailed accommodation request. One of these
supervisors told Jacobs that she intended to discuss the request
with Tucker upon Tucker’s return from vacation. Drawing all
reasonable inferences in Jacobs’s favor, Tucker and the
supervisors likely discussed Jacobs’s disability at this meeting
immediately before firing her. A reasonable jury could thus
find that Tucker knew that Jacobs was disabled. See Schmidt v.
Safeway Inc., 864 F. Supp. 991, 997 (D. Or. 1994) (“The employer
need only know the underlying facts, not the legal significance
of those facts.”).
Contrary to the AOC’s contention, Jacobs has produced
affirmative evidence from which a reasonable jury could conclude
that she was terminated because of her disability. See Ennis,
53 F.3d at 59. She was fired just three weeks after sending her
e-mail disclosing her disability and requesting an
accommodation. Such close temporal proximity weighs heavily in
favor of finding a genuine dispute as to causation. See
Haulbrook v. Michelin N. Am., Inc.,
252 F.3d 696, 706 (4th Cir.
2001) (finding that temporal proximity alone can create a
genuine dispute to causation).
29
We therefore find that a reasonable jury could conclude
that Jacobs has made out each of the elements of a prima facie
case of discriminatory discharge.
4.
Under the familiar McDonnell Douglas framework, the burden
then shifts to the AOC to produce evidence of a legitimate, non-
discriminatory reason for terminating Jacobs. See McDonnell
Douglas Corp., 411 U.S. at 802. The AOC produced evidence of a
number of non-discriminatory reasons for Jacobs’s termination
including: Jacobs was not “getting it”; she had outbursts and
became angry with her trainer; she slept on the job; and she
failed to follow the appropriate procedure for calling in sick.
For summary judgment purposes, we thus find that the AOC has
satisfied this relatively modest burden.
The burden therefore shifts back to Jacobs to prove that
these asserted justifications are pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
Among other methods, she may do so by demonstrating that the
asserted justifications, even if true, are post hoc
rationalizations invented for purposes of litigation. Dennis v.
Columbia Colleton Med. Ctr. , Inc.,
290 F.3d 639, 647 (4th Cir.
2002). Jacobs argues that the AOC’s proffered reasons are
pretextual because: (i) the AOC has offered different rationales
30
at different phases of the litigation and (ii) the AOC’s
evidence is inconsistent and contradictory.
The fact that an employer “has offered different
justifications at different times for [an adverse employment
action] is, in and of itself, probative of pretext.” Sears
Roebuck & Co., 243 F.3d at 852–53. At the time of termination,
Tucker told Jacobs that she was being fired for not “getting
it,” for being slow, for lying about her ability to do the job,
and for her “propensity for mistakes.” J.A. 827. In her EEOC
complaint, Tucker put forward additional reasons: Jacobs had
“outbursts,” got angry with her trainer, and would disruptively
ask her co-workers how to perform tasks. J.A. 686. After
Jacobs filed suit, the AOC put forward still more reasons,
claiming that Jacobs slept on the job and failed to follow
procedures for calling in sick.
Although this constellation of justifications is not
internally inconsistent, many of the purported justifications
were not raised at the time of termination. Even more striking
is that no one at the AOC documented any of the justifications
(including those raised at the time of termination) in any way.
Moreover, all of the annotations on the e-mail printout (that
Tucker testified reflect her contemporaneous account of the
reasons for firing Jacobs) concern her disability, use of sick
leave, and request for accommodation; none concern the
31
justifications raised during the course of litigation. Drawing
all reasonable inferences in favor of Jacobs, we conclude that
the AOC’s undocumented and uncorroborated justifications are
pretextual and were not the actual reason for Jacobs’s
termination. 15
In addition, substantial circumstantial evidence
contradicts Tucker’s testimony that she decided to fire Jacobs
after learning that Jacobs had been sleeping on the job. See
Reeves, 530 U.S. at 151 (stating that courts need not credit the
moving party’s evidence when it is either contradicted or
impeached by the nonmoving party). First, even though Jacobs’s
alleged sleeping was purportedly central to Tucker’s decision to
fire her, Tucker did not discuss it in the termination meeting
or in responding to the EEOC. Rather, the story emerged for the
first time during discovery in this suit. Second, Tucker’s
deposition testimony contains numerous inconsistencies. For
example, she testified about a discussion that purportedly took
place during the termination meeting, but that discussion is
entirely absent from the unaltered audio recording of that
15
Jacobs also argues that the AOC’s evidence regarding the
justifications for firing Tucker is self-defeating.
Specifically, she notes that although all of Jacobs’s
supervisors testified that they learned of Jacobs’s performance
issues from co-worker Ashley English, English testified that she
never discussed Jacobs’s performance with them. We conclude
that English’s testimony creates a genuine dispute of fact
regarding Jacobs’s alleged performance issues.
32
meeting. See Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir.
2009) (per curiam) (“Summary judgment is not appropriate when
‘questions about the credibility of key witnesses loom large’
and the evidence could permit the trier-of-fact to treat their
testimony with ‘skeptical scrutiny.’” (ellipsis omitted)
(quoting Thomas v. Great Atl. & Pac. Tea Co.,
233 F.3d 326, 331
(5th Cir. 2000))).
Third, Radewicz--who testified that she observed Jacobs
sleeping at her desk and called Tucker while she was away on
vacation to let her know--also testified that she was coached by
Tucker regarding specific details of her testimony on the
16
morning of her deposition. Fourth and finally, Radewicz’s
testimony is significantly implausible. Tucker testified that,
while she was on vacation, she asked to be called only in the
event of an emergency and that the only call she received was
from Radewicz. In order to credit Tucker and Radewicz, then, a
jury would have to believe that the only “emergency” that
occurred in the courthouse during Tucker’s three-week vacation
was Jacobs’s purportedly sleeping on the job. We therefore
conclude that Jacobs’s circumstantial evidence is sufficient to
16
Jacobs denies ever sleeping on the job, but has not
produced evidence directly contradicting Radewicz’s testimony
that she called Tucker during Tucker’s vacation.
33
create a genuine dispute of fact as to whether she was fired for
sleeping on the job.
In sum, we find that a reasonable jury could conclude that
Jacobs has set out a prima facie case of disability
discrimination and sufficient evidence of pretext to ultimately
prevail on her claim. The district court thus erred in granting
summary judgment on Jacobs’s disability discrimination claim.
B.
We next consider whether we should affirm summary judgment
on Jacobs’s retaliatory discharge claim. The ADA provides that
“no person shall discriminate against any individual” for
engaging in protected opposition or participation activity. 42
U.S.C. § 12203(a). Jacobs alleges that she was fired because
she engaged in protected activity; namely, requesting an
accommodation for her social anxiety disorder.
“In order to prevail on a claim of retaliation, a plaintiff
must either offer sufficient direct and indirect evidence of
retaliation, or proceed under a burden-shifting method.” Rhoads
v. FDIC, 257 F.3d 373, 391 (4th Cir. 2001). A plaintiff need
not show that she is disabled within the meaning of the ADA. See
id. Whether a plaintiff proceeds by direct evidence or
McDonnell Douglas burden-shifting, she must show (i) that she
engaged in protected activity and, (ii) because of this,
34
(iii) her employer took an adverse employment action against
her. Id.
The parties do not dispute that the first and third
elements are satisfied. Jacobs clearly engaged in protected
activity by submitting a request for accommodation; and the AOC
clearly took an adverse employment action by firing her. As set
forth below, disputed issues of material fact exist as to
causation under the McDonnell Douglas framework. Accordingly,
we reverse the grant of summary judgment as to Jacobs’s
retaliatory discharge claim.
1.
In assessing causation, we begin with Jacobs’s asserted
direct and indirect evidence of retaliation. “To avoid summary
judgment, the plaintiff must produce direct evidence of a stated
purpose to discriminate and/or indirect evidence of sufficient
probative force to reflect a genuine issue of material fact.”
Rhoads, 257 F.3d at 391 (quoting Brinkley v. Harbour Recreation
Club,
180 F.3d 598, 607 (4th Cir. 1999)) (brackets and internal
quotation marks omitted). “What is required is evidence of
conduct or statements that both reflect directly the alleged
discriminatory attitude and that bear directly on the contested
employment decision.”
Id. at 391–92 (quoting
Brinkley, 180 F.3d
at 607).
35
First, Jacobs argues that Tucker’s refusal to train her for
positions other than the front counter, when Tucker had allowed
the 29 other deputy clerks to train for positions other than the
front counter, is direct evidence that Jacobs was treated
adversely because of her request for an accommodation. It is
undisputed that the AOC did not provide such training
immediately to new hires. Jacobs does not produce any evidence
that other deputy clerks of comparable tenure were given
training opportunities that she was denied. Accordingly, this
argument is without merit.
Second, Jacobs argues that the actions taken by the AOC
after she submitted her accommodation request constitute
evidence that the AOC reacted to her request with retaliatory
animus. For example, although her supervisor had granted all
her requests for leave before she sought an accommodation, her
request for leave after seeking the accommodation was denied. 17
Jacobs also cites as direct evidence of retaliatory animus a
letter Tucker wrote to a superior following the termination in
which Tucker said she had reservations about hiring Jacobs due
to her “mousiness.” J.A. 689.
17
We note that, in addition to serving as evidence of
hostility, the denial of leave can itself be an adverse
employment action compensable under the ADA’s retaliation
provision. Wells v. Gates, 336 F. App’x 378, 383–384 (4th Cir.
2009) (per curiam).
36
Considering this evidence as a whole, we find that no
reasonable jury could conclude on the basis of the purported
direct and indirect evidence that Tucker fired Jacobs in
retaliation for her request for accommodation. Although Jacobs
provides some indirect evidence from which a factfinder might
infer animus, she has produced no direct evidence of retaliatory
(as opposed to discriminatory) animus. Tucker’s notes and
statements during the termination meeting indicate that she may
have intended to fire Jacobs because she was disabled, but they
do not indicate that she intended to fire Jacobs in retaliation
for requesting an accommodation. Jacobs’s purported direct and
indirect evidence is insufficient to survive summary judgment.
2.
However, this is not the end of our analysis of
Jacobs’s retaliation claim. We also consider whether Jacobs can
survive summary judgment under the McDonnell Douglas burden-
shifting framework. Under this method of proof, Jacobs “must
show (1) that [s]he engaged in protected activity; (2) that
[her] employer took an adverse action against [her]; and (3)
that a causal connection existed between the adverse activity
and the protected action.” Haulbrook, 252 F.3d at 706. “The
employer then has the burden ‘to rebut the presumption of
retaliation by articulating a legitimate nonretaliatory reason
37
for its actions.’” Rhoads, 257 F.3d at 392 (quoting Beall v.
Abbots Labs.,
130 F.3d 614, 619 (4th Cir. 1997)). The burden
then shifts back to the plaintiff to show that the proffered
reason is pretext. “The plaintiff always bears the ultimate
burden of persuading the trier of fact that she was the victim
of retaliation.”
Id.
Jacobs has established the first two elements of the prima
facie case through undisputed evidence. The AOC argues that
Jacobs has failed to establish causation because there is “no
evidence” that Tucker knew, when she decided to terminate
Jacobs, that Jacobs had submitted an accommodation request.
Appellees’ Br. at 43. As we discussed above, the record in
actuality contains ample evidence from which a reasonable jury
could conclude that Tucker learned of Jacobs’s request for an
accommodation before the termination meeting.
See supra Part
II.B.3. We therefore proceed with the causation inquiry.
Jacobs was terminated just three weeks after requesting an
accommodation from her supervisors. This close temporal
proximity is sufficient to establish a disputed issue of fact as
to the causation element of the prima facie case. See
Haulbrook, 252 F.3d at 706 (“[A] contested issue of fact
arguably exists as to . . . [causation], due solely to the
proximity in time of [the plaintiff’s] termination on November
38
25 and his assertion on November 4 of a right to accommodation
under the ADA.”).
From here, the burden-shifting inquiry proceeds just as it
did with respect to Jacobs’s disability discrimination claim.
For the reasons stated above in Part III.A.4, we find that a
reasonable jury could conclude that Jacobs has set out
sufficient evidence of pretext to ultimately prevail on her
retaliation claim. Thus, the district court erred in granting
summary judgment on this claim.
C.
Finally, we consider whether we should affirm summary
judgment on Jacobs’s failure-to-accommodate claim. To establish
a prima facie case for failure to accommodate, Jacobs must show:
“(1) that [she] was an individual who had a disability within
the meaning of the statute; (2) that the employer had notice of
[her] disability; (3) that with reasonable accommodation [she]
could perform the essential functions of the position; and
(4) that the employer refused to make such accommodations.”
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013)
(brackets and ellipsis omitted). For the reasons discussed
above, we find that Jacobs has established a genuine dispute of
fact regarding the first and second elements of the prima facie
case--that is, that she had a disability and that the AOC had
39
notice of her disability. As to the fourth element, it is
undisputed that the AOC refused to make an accommodation for
Jacobs. The only remaining issue concerns the third element:
Could a reasonable jury find that with a reasonable
accommodation, Jacobs could perform the essential functions of
the position of deputy clerk?
1.
We start by determining the essential functions of the
position of deputy clerk. Not all job requirements or functions
are essential. A job function is essential when “the reason the
position exists is to perform that function,” when there aren’t
enough employees available to perform the function, or when the
function is so specialized that someone is hired specifically
because of his or her expertise in performing that function. 29
C.F.R. § 1630.2(n)(2). “[I]f an employer has prepared a written
description before advertising or interviewing applicants for
the job, this description shall be considered evidence of the
essential functions of the job.” 42 U.S.C. § 12111(8). Other
relevant evidence can include “the employer’s judgment as to
which functions are essential,” “the amount of time spent on the
job performing the function,” “the consequences of not requiring
the incumbent to perform the function,” and the work experience
40
of people who hold the same or similar job. 29 C.F.R.
§ 1630.2(n)(3). 18
We begin with the written job description for the position:
“[D]eputy clerks perform a variety of duties including: working
in the courtroom, providing customer service, data entry,
typing, filing, cash receipting, case file indexing, multi-
tasking and the ability to type 35-40 corrected wpm, and various
other tasks.” J.A. 678. “[P]roviding customer service” is only
one of the many duties that deputy clerks might perform.
We also consider the undisputed evidence in the record.
The AOC employed 30 deputy clerks. Of these, only four worked
regularly at the front counter. The others performed various
tasks, including intake, filing, data entry, mailing documents,
bookkeeping, and serving as a courtroom clerk. Most new deputy
clerks started at the front counter, purportedly because the
front counter is where a new employee can “gain the most
knowledge of the office.” J.A. 434. However, some new deputy
clerks started in filing and were permitted to perform that task
without first training at the front counter. See J.A. 274 (“The
best two places to start are filing and the front counter.”).
Deputy clerks were trained for other roles based on seniority.
18
Because the parties agree that the regulations are
instructive, we again assume their reasonableness and decline to
determine what level of deference, if any, they are due.
41
J.A. 259 (“I worked at the front counter five days a week for
over one year before a new deputy clerk was hired and I was
moved off the front counter . . . .”).
The record contains ample evidence from which a reasonable
jury could conclude that working at the front counter was not an
essential function of the position of deputy clerk. The job
description does not indicate that all deputy clerks were
expected to work at the front counter. Fewer than 15% of the
office’s deputy clerks worked behind the front counter, and some
deputy clerks never performed this task. Because most of the
deputy clerks were trained to work behind the front counter,
many employees were available to perform that function.
Finally, the AOC has produced no evidence that mastery of the
front desk was essential or that Jacobs’s no longer working
behind the front counter would negatively impact the office. We
therefore find that Jacobs has established a genuine issue of
fact regarding whether working behind the front counter is an
essential function of the position of deputy clerk.
2.
We now turn to the heart of a claim for failure to
accommodate: whether, with a reasonable accommodation, Jacobs
could perform the essential functions of the position of deputy
clerk. Wilson, 717 F.3d at 345. This inquiry proceeds in two
42
steps. First, was the specific accommodation requested by
Jacobs reasonable? Second, had the AOC granted the
accommodation, could Jacobs perform the essential functions of
the position? Id.
A reasonable accommodation is one that “enables [a
qualified] individual with a disability . . . to perform the
essential functions of [a] position.” 29 C.F.R.
§ 1630.2(o)(1)(ii). The statute expressly contemplates that a
reasonable accommodation may require “job restructuring.” 42
U.S.C. § 12111(9)(B). Jacobs’s proposed accommodation was to
work fewer days at the counter and more days microfilming or
performing other deputy clerk tasks. This proposed
accommodation did not require the AOC to increase the workload
of Jacobs’s coworkers; Jacobs merely asked that her employer
change which deputy clerk was assigned to which task. Cf.
Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314,
323 (4th Cir. 2011) (noting that “an accommodation that would
require other employees to work harder is unreasonable”). 19 A
19
That Jacobs’s request would have necessitated a departure
from the office’s informal seniority system is of no moment.
All deputy clerks shared a common job title and description. In
the absence of evidence of a formal seniority policy, that
Jacobs’s proposed accommodation would require shifting a co-
worker with more seniority to a less desirable task does not
render it inherently unreasonable. Cf. EEOC v. Sara Lee Corp.,
237 F.3d 349, 354–355 (4th Cir. 2001) (where company’s formal
seniority policy which had been in place for 30 years required
43
reasonable jury could therefore conclude that Jacobs’s requested
accommodation was reasonable.
An employer is not required to grant even a reasonable
accommodation unless it would enable the employee to perform all
of the essential functions of her position. Jacobs argues that
a transfer away from the front desk would eliminate the cause of
her social anxiety--having to answer questions from strangers
face-to-face all day--and enable her to meet her employer’s
reasonable expectations. The AOC argues that Jacobs was a poor
performer and therefore would have been unable to perform the
essential functions of the position even with the accommodation.
As we found above, there is a genuine dispute of fact as to
whether Jacobs was a poor performer. Even assuming that Jacobs
actually microfilmed too slowly and pestered her coworkers by
asking for their help, a reasonable jury could conclude that
these behaviors were manifestations of Jacobs’s performance
anxiety and were unlikely to reemerge had the accommodation been
granted. There is no uncontradicted evidence that Jacobs’s
social anxiety disorder interferes with her ability to file or
perform other administrative tasks. We therefore conclude that
Jacobs has established a genuine dispute as to whether, with a
an employee to switch to a different shift, it was reasonable
for the company to enforce the seniority policy).
44
reasonable accommodation, she could have performed all of the
essential functions of the position of deputy clerk.
3.
The ADA imposes upon employers a good-faith duty “to engage
[with their employees] in an interactive process to identify a
reasonable accommodation.” Wilson, 717 F.3d at 346. This duty
is triggered when an employee communicates her disability and
desire for an accommodation--even if the employee fails to
identify a specific, reasonable accommodation.
Id. However, an
employer will not be liable for failure to engage in the
interactive process if the employee ultimately fails to
demonstrate the existence of a reasonable accommodation that
would allow her to perform the essential functions of the
position.
Id. at 347; see also Deily v. Waste Mgmt. of
Allentown, 55 F. App’x 605, 607 (3d Cir. 2003) (citing Shapiro
v. Twp. of Lakewood,
292 F.3d 356, 360 (3d Cir. 2002)). Two of
our sister circuits have held that failure to “discuss a
reasonable accommodation in a meeting in which the employer
takes an adverse employment action” against a disabled employee
is evidence of bad faith. Rorrer v. City of Stow,
743 F.3d
1025, 1040 (6th Cir. 2014) (citing EEOC v. Chevron Phillips
Chem. Co.,
570 F.3d 606, 622 (5th Cir. 2009)).
45
It is undisputed that each of Jacobs’s supervisors--
Kennedy, Excell, and Griffin--refused to discuss Jacobs’s
accommodation request with her until Tucker returned to the
office. Both Radewicz and Tucker testified that Jacobs’s
supervisors had authority to reassign employees to other tasks
(and therefore to engage in the interactive process with
Jacobs). The morning that Tucker returned to the office after a
three-week absence, she called Jacobs to her office and fired
her without first discussing her accommodation request. From
these facts, a reasonable jury could easily conclude that the
AOC acted in bad faith by failing to engage in the interactive
process with Jacobs.
We therefore conclude that summary judgment is not
warranted on Jacobs’s failure to accommodate claim.
IV.
For the foregoing reasons, we reverse in part the district
court’s order granting summary judgment against Jacobs and
remand to the district court for trial of her ADA disability
discrimination, retaliation, and failure to accommodate claims.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED FOR TRIAL
46
