____________________
No. 03-1878
_____________________
JOHN CHRISTOPHER SHAVER,
Plaintiff-Appellant,
v.
INDEPENDENCE STAVE COMPANY,
INC., d/b/a SALEM WOOD PRODUCTS COMPANY,
et al.,
Defendants-Appellees.
_________________________________________________________
On Appeal from the United States District Court
for the Eastern District of Missouri, No. 4:01CV01354
The Honorable Charles A. Shaw, Presiding
_________________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT FOR REVERSAL
_________________________________________________________
NICHOLAS M. INZEO
Acting Deputy General Counsel
PHILIP B. SKLOVER
Associate General Counsel
EQUAL EMPLOYMENT
CAROLYN L. WHEELER OPPORTUNITY COMMISSION
Assistant General Counsel Office of General Counsel
1801 L Street, N.W., Room 7020
JOSEPH A. SEINER Washington, D.C. 20507
Attorney (202) 663-4772
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
STATEMENT OF INTEREST 1
STATEMENT OF THE ISSUES 1
STATEMENT OF THE CASE 2
SUMMARY OF ARGUMENT 8
ARGUMENT 9
Shaver Presented Sufficient Evidence of Disability-Based
Harassment. 9
A. The ADA Prohibits Disability-Based Harassment. 9
Shaver Satisfies the Elements of a Disability-Based
Harassment Claim. 11
Shaver is a Qualified Individual with a Disability. 12
The Harassment was Unwelcome. 17
The Harassment was Based on Shaver's Disability. 18
The Harassment Affected a Term, Condition, or
Privilege of Employment. 19
The District Court Improperly Rejected Shaver's Retaliation Claim. 26
CONCLUSION 30
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
FEDERAL CASES
Boutros v. Canton Reg'l Transp. Auth.,
997 F.2d 198 (6th Cir. 1993) 22
Bradley v. Widnall,
232 F.3d 626 (8th Cir. 2000) 11
Brown v. Lester E. Cox Med. Ctrs.,
286 F.3d 1040 (8th Cir. 2002) 15-16
Bruso v. United Airlines, Inc.,
239 F.3d 848 (7th Cir. 2001) 29
Bundy v. Jackson,
641 F.2d 934 (D.C. Cir. 1981) 23
Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998) . . . . . . .. . 17-18
Burns v. McGregor Elec. Indus., Inc.,
989 F.2d 959 (8th Cir. 1993) 22, 25
Cannon v. Univ. of Chi.,
441 U.S. 677 (1979) 11
Davidson v. Midelfort Clinic,
133 F.3d 499 (7th Cir. 1998) 15
Delph v. Dr. Pepper Bottling Co.,
130 F.3d 349 (8th Cir. 1997) 22, 24
Diaz v. Swift-Eckrich, Inc.,
318 F.3d 796 (8th Cir. 2003) 20
Doane v. City of Omaha,
115 F.3d 624 (8th Cir. 1997) 16-17
Duncan v. Gen. Motors Corp.,
300 F.3d 928 (8th Cir. 2002), cert. denied, 123 S. Ct. 1789 (2003) 19
Flowers v. S. Reg'l Physician Servs.,
247 F.3d 229 (5th Cir. 2001) 10-11
Fox v. Gen'l Motors Corp.,
247 F.3d 169 (4th Cir. 2001) 10-11, 18, 25-26
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) 29
Jeseritz v. Potter,
282 F.3d 542 (8th Cir. 2002) 10-11
Kyles v. J.K. Guardian Sec. Sys.,
222 F.3d 289 (7th Cir. 2000) 28-29
Lawson v. CSX Transp. Inc.,
245 F.3d 916 (7th Cir. 2001) 14
Martinson v. Kinney Shoe Corp.,
104 F.3d 683 (4th Cir. 1997) 18
McKenzie v. Dovala,
242 F.3d 967 (10th Cir. 2001) 12-13, 15
Meritor Sav. Bank v. Vinson,
477 U.S. 57 (1986) 10
Miller v. Kenworth,
277 F.3d 1269 (11th Cir. 2002) 22
Nichols v. Azteca Rest. Enters., Inc.,
256 F.3d 864 (9th Cir. 2001) 22-23
Otting v. J.C. Penney Co.,
223 F.3d 704 (8th Cir. 2000) 13-14
Patterson v. McLean Credit Union,
491 U.S. 164 (1989) 10
Pedigo v. P.A.M. Transp., Inc.,
60 F.3d 1300 (8th Cir. 1995) 29
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) 27
Rodgers v. Western-Southern Life Ins. Co.,
12 F.3d 668 (7th Cir. 1993) 24-25
Ross v. Campbell Soup Co.,
237 F.3d 701 (6th Cir. 2001) 17
Ross v. Douglas County,
234 F.3d 391 (8th Cir. 2000) 21
Sch. Bd. of Nassau County v. Arline,
480 U.S. 273 (1987) 15-16
Shanoff v. Ill. Dep't of Human Servs.,
258 F.3d 696 (7th Cir. 2001) . . . . . . . . . . .. . 22
Smith v. St. Louis Univ.,
109 F.3d 1261 (8th Cir. 1997) 21-22, 24, 26-27
Tate v. Apfel,
167 F.3d 1191 (8th Cir. 1999) 13
Todd v. Ortho Biotech, Inc.,
175 F.3d 595 (8th Cir. 1999) 17
Wallin v. Minn. Dep't of Corr.,
153 F.3d 681 (8th Cir. 1998) 11
FEDERAL STATUTES, REGULATIONS, AND RULES
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. passim
42 U.S.C. § 2000e-2 10
29 C.F.R. pt. 1630 12, 14, 16, 23
Fed. R. App. P. 29. 1
CONGRESSIONAL RECORD
136 Cong. Rec. S7422, S7444 (1990) (daily ed. June 6, 1990) 21
EEOC TECHNICAL ASSISTANCE
EEOC, Technical Assistance Manual on Title I of the ADA,
8 FEP Manual (BNA) 405:6981, 7201-02 (Jan. 27, 1992) 23
STATEMENT OF INTEREST
The U.S. Equal Employment Opportunity Commission (EEOC or Commission)
enforces Title I of the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq. This case raises questions regarding the
evidence necessary for claims of disability harassment and retaliation
under the ADA. Because of the importance of these issues to the
enforcement of the ADA, we offer our views to the Court under Fed.
R. App. P. 29(a), which authorizes a government agency to file an
amicus curiae brief "without the consent of the parties or leave of court."
STATEMENT OF THE ISSUES (1)
1. Whether plaintiff, who had metal plates surgically implanted into
his head as a result of severe epilepsy, was harassed on the basis
of his disability when he was called "platehead," "stupid," "playing
with half a brain," and told he was not "playing with a full deck" on
a daily basis by supervisors and co-workers alike despite his frequent
complaints.
Fox v. Gen'l Motors Corp., 247 F.3d 169 (4th Cir. 2001)
Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000)
Ross v. Douglas County, 234 F.3d 391 (8th Cir. 2000)
Delph v. Dr. Pepper Bottling Co., 130 F.3d 349 (8th Cir. 1997)
42 U.S.C. §§ 12102(2), 12112(a)
2. Whether plaintiff's employer illegally retaliated against him for
filing a charge of discrimination by providing negative job references
indicating that plaintiff was "looking for a get-rich-quick scheme" and
was involved in "suing companies."
Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir. 1997)
Kyles v. J.K. Guardian Sec. Sys., 222 F.3d 289 (7th Cir. 2000)
Robinson v. Shell Oil Co., 519 U.S. 337 (1997)
42 U.S.C. § 12203(a)
STATEMENT OF THE CASE
John Shaver, now 37 years old, was diagnosed with epilepsy at the age of
13. (App. at 967; Shaver Dep. at 14.) (2) Shaver would experience convulsive
grand mal seizures at night in his sleep. (Id.) The after-effects of these
seizures included disorientation, loss of appetite, and excessive sleeping,
as Shaver would often sleep for 24 to 48 hours following a seizure. (Id.)
Medication to control the seizures proved ineffective when Shaver reached
adulthood. (App. at 966-67; Shaver Dep. at 9-10, 15.) Because of his epilepsy,
Shaver was unable to work at all for four years and received Social Security
benefits during that time. (App. at 966; Shaver Dep. at 9-10.) In 1994-95,
Shaver underwent several operations over a nine-month period to help control
his epilepsy. (App. at 967-68; Shaver Dep. at 15-17; App. at 1206-07; Letter
of Dr. Sertl.) Surgeons cut the left side of his skull, pulled out the brain
tissue, and removed 80% of his left hippocampus. (Id.) The brain was then put
back and metal plates inserted to keep the section that was cut in place. (Id.)
The surgery made Shaver's epilepsy more medically controllable, allowing Shaver
to enter the workforce. (Id.)
In May 1998, Shaver became a production-line worker for Salem. (App. at 70-71;
Defendant's Submission of Undisputed Facts.) Salem produces staves and headers
for bourbon and wine barrels from uncut oak logs. (Id. at 71.) Shaver worked
mainly with the Optimizer, a computer that finds the optimal place for cutting
logs into stave length "bolts." (Id.) In June 1998, Shaver suffered a
work-related
injury when a loader hit him on the head, and was accompanied to the hospital
by his assistant supervisor, Darren Cook, per company policy. (App. at 1149-50;
Westerman Dep. at 19-21.) While at the hospital Cook learned that Shaver had a
plate in his head. (App. at 1102, 1104; Weikel Dep. at 17, 25; App. at 752-53;
Cook Dep. at 32-33; App. at 980-81, 983; Shaver Dep. at 68-69, 78.) On July 23,
1998, Shaver's doctor wrote a letter to Salem regarding Shaver's injury and
condition. (App. at 1206-07; Letter of Dr. Sertl; App. at 1032-33, Transano Dep.
at 60-63.) The doctor stated that of "significance is the fact that [Shaver]
previously had brain surgery for epilepsy and had several operations between
September of 1994 and March of 1995." (Id.) The doctor further indicated that
his medical history was "significant for seizures," and that his diagnosis
included "Epilepsy, status post brain surgery x 3." (Id.)
When Cook returned to work following Shaver's accident, he informed the other
workers that Shaver had a plate in his head, and that Shaver's head could not
be sewed together because of the plate. (App. at 1102, 1104, 1106; Weikel Dep.
at 17, 25-26, 35-36.) Shaver's co-workers responded to Cook's statements with
laughter. (Id.) From that moment through his termination over two years later,
Shaver was subjected, on a daily basis, to ridicule, degrading comments and
jokes, and other forms of harassment by both supervisors and co-workers alike.
This harassment included:
Cook called Shaver "platehead" to his face for two weeks following his injury
and thereafter behind his back. (App. at 992; Shaver Dep. at 113-14; App. at
1100, 1104; Weikel Dep. at 10-11, 28; App. at 813; Farris Dep. at 12.)
Supervisors/Managers Mike Transano, Scott Westerman, Stanley Nelson
and Assistant
Supervisor Brad Paine also called Shaver "platehead" to his face, and
Westerman,
Nelson, and Paine did so on a daily basis. (App. at 980, 991-92;
Shaver Dep. at
67-68, 111-15; App. at 854; Lato Dep. at 25-28.)
Westerman, a shift supervisor, introduced Shaver to new employees as
"platehead,"
and referred to Shaver as "platehead" several times each day.
Westerman laughed
at Shaver when he asked him not to call him "platehead." (App. at 980,
992; Shaver
Dep. at 67-68, 114-15; App. at 825; Harrell Dep. at 11.)
Westerman commented that others should watch out for Shaver because he
was "only
playing with half a brain" and referred to him as "stupid." Westerman
also treated
Shaver as if he were mentally handicapped by not letting him
accomplish tasks, not
listening to him, and blaming him when machinery would break down.
(App. at 984,
992; Shaver Dep. at 81-83, 114-15.)
Nelson and maintenance worker Gene Stafford told Shaver that he should not be
operating certain machinery because he "wasn't playing with a full deck." (App.
at 986; Shaver Dep. at 91-92.)
Stafford, one of Shaver's co-workers, called him "platehead" or something worse
every time something went wrong around him and referred to him as stupid.
Stafford considered Shaver to be "somewhat of a retarded person."
(App. at 984-85;
Shaver Dep. at 83-86; App. at 854; Lato Dep. at 26-28.)
All of the maintenance men at the mill, as well as at least some of the cleanup
crew, called Shaver "platehead." (App. at 980, 982; Shaver Dep. at 66, 74.)
Beyond the insults and ridicule directed at Shaver in his presence, the
belief that Shaver was disabled and thus could not perform as well as
other employees permeated the mill. For example, someone questioned (in
a non-joking manner) whether Shaver "pissed his pants and forgot who he
was" when the microwave was turned on. (App. at 817, 820; Farris Dep. at
25, 39-40.) One co-worker recalled that the term "platehead" was used
more often than Shaver's real name. (App. at 871; Lato Dep. at 96.) Another
co-worker testified that a supervisor would refer to Shaver as "platehead"
95% of the time. (App. at 1104; Weikel Dep. at 28.) And some of Shaver's
supervisors considered him too stupid for a position somewhere else, and
would also refer to him as "dumb" or "stupid." (App. at 1100; Weikel Dep.
at 11-12; App. at 814-815; Farris Dep. at 16-17; App. at 826-827; Harrell
Dep. at 14-17.)
Shaver did not simply accept this barrage of demeaning insults, jokes, and
comments. Rather, he informed the mill manager, Robbie McKenzie, as well as
supervisors Westerman, Nelson, assistant supervisor Cook, and "half or
better of the personnel" on his shift that the term "platehead" bothered
him. (App. at 980, 982, 991-92; Shaver Dep. at 65-68, 74-75, 111-15.) Still
the insults continued until his discharge in September 2000. (Id.) Even
after Shaver complained to the mill manager, the harassment only stopped
for approximately two to three weeks - then resumed and became even more
frequent. (App. at 980; Shaver Dep. at 67). On January 11, 2001, Shaver
filed a charge of disability discrimination with the EEOC and the Missouri
Commission on Human Rights. (App. at 242; EEOC Harassment Charge.)
Following the filing of this charge, while Shaver was looking for another
job, one of Shaver's supervisors told two prospective employers seeking
references that Shaver was "looking for a get-rich-quick scheme" and was
involved in "suing companies." (App. at 1094-95; Van Kirk Dep. at 40-41;
App. at 1192, 1198; Wright Dep. at 28, 51.) Shaver thus filed a separate
retaliation charge on June 7, 2001. (App. at 245; EEOC Retaliation Charge.)
Shaver subsequently filed this action on September 17, 2001. (App. at 1;
Complaint.)
The district court granted Salem's motion for summary judgment on all of
Shaver's federal claims and declined to exercise supplemental jurisdiction
over Salem's state-law claim. With respect to Shaver's ADA claim, the court
assumed without deciding that Shaver met the definition of a disabled person
under either the "regarded as" or "record of" prongs of the statute. 2003 WL
1203575, at *6 (E.D. Mo. Mar. 6, 2003). The court further acknowledged that
this Court has implicitly recognized a hostile work environment claim under
the ADA. Id. However, the court determined as a matter of law that while the
"frequent reference" to Shaver as "platehead" may have been "insulting,
mean-spirited, and unprofessional," it "was not so severe and extreme that
a reasonable person would find that the terms and conditions of his employment
had been altered." Id. The court also concluded that Shaver had waived any
claim on the disclosure of confidential medical information by failing to raise
it in a timely manner. Id. at *8. The court further held that the disclosure
claim was "outside the scope of Shaver's administrative charges." Id.
Finally, the court held that Shaver's retaliation claim failed because the
court believed that Shaver was trying only to "test the waters" with the
reference requests, and was not actually interested in another position at
the time. Id. at *7. The court thus concluded that the negative job references
did not create a "submissable" retaliation claim. Id.
SUMMARY OF ARGUMENT
The ADA prohibits harassment based on an individual's disability, and Shaver
presented sufficient evidence to survive summary judgment on this claim. Shaver
is protected by the ADA because of his history of severe epilepsy - a history
his employer had knowledge of - and because his employer regarded him as
substantially limited in the major life activity of thinking. There also
can be little question that Shaver was harassed because of this disability
when he was called "platehead," "stupid," "playing with half a brain," and
told he was not "playing with a full deck" on a daily basis by supervisors
and co-workers alike despite frequently complaining about these comments to
all levels of management. This harassment was severe or pervasive in that it
occurred daily, involved the illegal disclosure of confidential medical
information, was targeted directly at Shaver, and was aimed at undermining
his ability to perform his job.
With respect to Shaver's retaliation claim, by failing to view the evidence
in the light most favorable to Shaver, the district court erroneously found
that Shaver was trying only to "test the waters" by requesting a reference
and was not actually seeking other employment. In any event, Shaver is not
required to show that he was actively seeking another job to prevail on this
retaliation claim. Although such a showing might affect the measure of Shaver's
damages, it is irrelevant to establishing Salem's liability for retaliation.
ARGUMENT
I. Shaver Presented Sufficient Evidence of Disability-Based Harassment.
The ADA Prohibits Disability-Based Harassment.
The ADA prohibits harassment based on an individual's disability. The ADA
provides that an employer may not "discriminate against a qualified individual
with a disability because of the disability of such individual in
regard to . . .
terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a)
(emphasis
added). Title VII of the Civil Rights Act of 1964 contains almost
identical language
making it unlawful for an employer "to fail or refuse to hire or to
discharge any
individual, or otherwise to discriminate against any individual with
respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin[.]". 42 U.S.C. §
2000e-2(a) (emphasis added).
The Supreme Court has recognized that this language in Title VII prohibits
harassment. See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986)
(Title VII violation established by proof that discrimination based on
sex created
a hostile or abusive work environment); Patterson v. McLean Credit
Union, 491 U.S.
164, 180 (1989) ("[H]arassment in the course of employment is
actionable under Title
VII's prohibition against discrimination in the 'terms, conditions,
or privileges of
employment.'") (emphasis added). As two circuits have explicitly
held, and as this
Court has assumed, the parallel language in the ADA likewise
prohibits disability-based
harassment. See Fox v. Gen'l Motors Corp., 247 F.3d 169, 175 (4th Cir.
2001) ("[W]e have
little difficulty in concluding that the ADA, like Title VII, creates
a cause of action
for hostile work environment harassment."); Flowers v. S. Reg'l
Physician Servs., 247
F.3d 229, 234 (5th Cir. 2001) ("we follow the growing consensus that
our harassment
jurisprudence be extended to claims of disability-based harassment.");
Jeseritz v.
Potter, 282 F.3d 542, 547 (8th Cir. 2002) (assuming for purposes of
analysis that
ADA harassment claim exists and "would be modeled after the similar
claim under
Title VII") (quotation omitted); Wallin v. Minn. Dep't of Corr., 153
F.3d 681, 687-88
(8th Cir. 1998) (same); see also Cannon v. Univ. of Chi., 441 U.S.
677, 696-98 (1979)
(appropriate to assume Congress was aware of manner in which
statutory language has
been interpreted by the courts in drafting subsequent legislation and
"reflects their
intent" to have the new legislation interpreted similarly). Indeed,
no circuit has
held to the contrary.
Shaver Satisfies the Elements of a Disability-Based
Harassment Claim.
To establish a claim for disability-based harassment by supervisors, a
plaintiff must
show that (1) he is a qualified individual with a disability (2) who
was subjected
to unwelcome harassment (3) based on his disability (4) that was
severe or pervasive
enough to affect a term, condition, or privilege of his employment.
See Flowers, 247
F.3d at 235-36; Fox, 247 F.3d at 177; Bradley v. Widnall, 232 F.3d
626, 631 (8th Cir.
2000). Shaver has satisfied all of these elements. (3)
1. Shaver is a Qualified Individual with a Disability.
It is undisputed that Shaver is qualified to perform his position as
an Optimizer for
Salem. Indeed, Shaver was hired for the position and performed
adequately for over two
years until his termination - which was the result of alleged
insubordination rather
than poor job performance. Moreover, assistant supervisor Cook
testified that he considered
Shaver to be "a good worker," and supervisor Westerman testified that
Shaver worked hard.
(App. at 700, 708; Cook Dep. at 19-20, 49; App. at 1159; Westerman
Dep. at 57.)
Shaver also is disabled under the terms of the statute. Disability is
defined by the ADA
as "(A) a physical or mental impairment that substantially limits one
or more of the major
life activities of such individual; (B) a record of such an
impairment; or (C) being
regarded as having such an impairment." 42 U.S.C. § 12102(2). Shaver
satisfies the last
two prongs.
The "record of" provision of the disability definition applies where
the individual has
a history of a physical or mental impairment that, at some point in
the past, substantially
limited one or more major life activities. 29 C.F.R. § 1630.2(k)
(defining "record" to
include "history"); see, e.g., McKenzie v. Dovala, 242 F.3d 967, 972
(10th Cir. 2001)
(plaintiff must show that "at some point her impairment actually did
substantially limit
[a major life activity]").
Shaver's epilepsy, prior to his surgery in 1995, was a physical impairment that
substantially limited the major life activities of sleeping, speaking, walking,
and working. See, e.g., Otting v. J.C. Penney Co., 223 F.3d 704, 711
(8th Cir. 2000)
(plaintiff with epilepsy was substantially limited in the major life
activities of
seeing, speaking, and walking). Prior to his surgery, there can be no
question that
Shaver's epilepsy was severe, as he experienced grand mal seizures at
night in his
sleep. See Tate v. Apfel, 167 F.3d 1191, 1194 n.3 (8th Cir. 1999)
("'A grand mal
seizure is characterized by a loss of consciousness with generalized
tonic-clonic
seizures. A tonic-clonic seizure is a spasm consisting of a
convulsive twitching
of the muscles.'") (citation omitted). After a seizure, Shaver would experience
disorientation, loss of appetite, and excessive sleeping as he would
often sleep
for more than a day following a seizure. Indeed, he needed major
surgery to control
the epilepsy to a point where he could go off disability benefits and
enter the
workforce. Shaver's epilepsy was at least as severe as the epilepsy
experienced by
the plaintiff in Otting, who experienced two to three seizures a
month, lasting
from 30 seconds to two minutes, during which she was unable to see,
speak, or walk
and felt the effects of the seizures for as long as 36 hours. 223 F.3d
at 709-10.
This Court found that Otting was disabled by her epilepsy. Id. See
also Lawson v.
CSX Transp. Inc., 245 F.3d 916, 927 (7th Cir. 2001) (jury issue exists on
record-of-disability claim where diabetes substantially limited
plaintiff's ability
to work as plaintiff had recurring medical conditions and was unable
to maintain
any significant employment for a number of years).
Furthermore, Salem knew about this record of epilepsy. (4) Shaver's assistant
supervisor Cook became aware of Shaver's condition in June 1998, when
he accompanied
him to the hospital for a work-related injury. Through Cook, and
Cook's subsequent
illegal disclosure of this information to others at Salem, the
company was aware
that Shaver had a record of a disability that resulted in brain surgery and the
surgical implant of metal plates into his head. Additionally, Shaver's doctor
followed up the injury with a letter to Salem on July 23, 1998. The
letter clearly
set forth that Shaver had epilepsy, that he had a history of seizures,
and that his
epilepsy was so severe that he had needed brain surgery to help
minimize the effects
of the impairment. There can be no serious contention that this
document, in the
possession of defendants, does not constitute a "record of" a
disability. See McKenzie,
242 F.3d at 972-74 (physicians' reports of past mental problems of
which employer
had knowledge sufficient to create jury issue as to existence of
record of disability).
Shaver is also covered by the statute because he was regarded by Salem
as having a
disability. This type of coverage is closely intertwined with
record-of coverage,
reflecting a desire to "combat the effects of erroneous but
nevertheless prevalent
perceptions" with respect to individuals who, "at present," have "no actual
incapacity." School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 (1987)
(citation and quotation omitted); see also Davidson v. Midelfort Clinic, 133
F.3d 499, 509 (7th Cir. 1998) (coverage extends to "people who have recovered
from previously disabling conditions . . . but who may remain vulnerable to
the fears and stereotypes of their employers"). Salem and its
employees perceived
Shaver as having an impairment - epilepsy - that substantially limited
the major
life activity of thinking. Shaver's supervisors and co-workers
constantly referred
to him as "platehead," a reference to the surgical device implanted as
a result of
Shaver's epilepsy. Management and co-workers alike perceived that this
impairment
substantially limited Shaver's cognitive functioning as compared to the average
person. See Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045
(8th Cir. 2002)
("ability to perform cognitive functions on the level of an average
person" is a
major life activity).
Indeed, Shaver's supervisors would refer to him as "dumb" or "stupid"
and say that
he was not "playing with a full deck," was "only playing with half a
brain," and
was too stupid for a position somewhere else. Shaver was also treated
by one supervisor
as if he were mentally handicapped. Other employees were no better,
believing that
Shaver "pissed his pants and forgot who he was" when the microwave
was turned on
and that he was "somewhat of a retarded person." (See supra at 5-6.)
These comments
and actions demonstrate that the company perceived Shaver's epilepsy
as substantially
limiting his ability to think - to the point of mental retardation and
disorientation.
These condescending statements reflect precisely the kind of
"attitudinal barriers"
that are as "handicapping as are the physical limitations that flow from actual
impairment." 29 C.F.R. pt. 1630 App. §1630.2(l) (quotation and
citation omitted);
(5) see also Doane v. City of Omaha, 115 F.3d 624, 628 (8th Cir. 1997)
(plaintiff
was regarded as substantially limited in the ability to see where
decision-maker
acknowledged that he perceived the plaintiff's visual problem as a significant
limitation), overruled on other grounds by Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999); Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th
Cir. 2001)
(employee with numerous back injuries may have been regarded as substantially
limited in working where supervisor referred to him in a memo as a
"problem person"
with a "back case," his performance evaluations dropped, and he was
invited to retire).
The Harassment was Unwelcome.
There can be no genuine dispute that the harassment Shaver suffered
was unwelcome.
Shaver asked both management and co-workers alike to stop referring to him as
"platehead," including "half or better of the personnel on the B shift at the
time." (App. at 980, 982, 991-92; Shaver Dep. at 65-68, 74-75, 111-15.) Still,
the maintenance crew, some of the cleanup crew, and some of the supervisors
continued to refer to Shaver as "platehead," and one supervisor even laughed
when Shaver asked him to stop. (Id.; App. at 825; Harrell Dep. at 11). Shaver
also informed the mill manager Robbie McKenzie about the problem, after which
the harassment only stopped for approximately two to three weeks - then resumed
and became even more frequent. (6) (App. at 980; Shaver Dep. at 65-68.) Another
employee also informed at least one supervisor that Shaver did not like being
called "platehead." (App. at 1005; Stidham Dep. at 13-14.)
The Harassment was Based on Shaver's Disability.
The harassment here was based on Shaver's epilepsy. The references to Shaver
as "platehead" refer to metal plates that were surgically implanted in his
head to control his epilepsy. See Martinson v. Kinney Shoe Corp., 104 F.3d
683, 686 (4th Cir. 1997) ("Whether [the company] fired [plaintiff] because
he suffered from epilepsy or because of the 'specific attributes' of his
disease, i.e., his seizures, is immaterial . . . the undisputed facts
demonstrate that [the employer] discharged [plaintiff] because of a
disability."). Were it not for Shaver's record of this disability, his
supervisors and coworkers would not have had reason to call him this name.
Indeed, the metal plates in Shaver's head are directly attributable to his
history of epilepsy. See Fox, 247 F.3d at 179 ("terms such as 'handicapped MF,'
and 'hospital people,' expressly referenced their disabilities and resulting
medical restrictions" and were therefore "abuse directly attributable to
[plaintiff's] medical condition"). In addition, the degrading comments
that were directed at Shaver such as "stupid," not "playing with a full
deck," and only "playing with half a brain" were directed at his ability to
think - the perception being that because he had surgery in which part of
his brain was removed, he could not cognitively function on par with his
co-workers.
The Harassment Affected a Term, Condition, or Privilege of Employment.
For harassment to be actionable, it must be severe or pervasive enough to
affect the terms, conditions, or privileges of employment. A plaintiff
must demonstrate that "the workplace is permeated with discriminatory
intimidation, ridicule, and insult." Duncan v. Gen. Motors Corp., 300
F.3d 928, 934 (8th Cir. 2002) (citation and quotation omitted), cert.
denied, 123 S. Ct. 1789 (2003). The harassment must be "severe or
pervasive" both subjectively and objectively. Id. The subjective
component is not at issue here; Shaver unquestionably found his working
environment to be hostile and complained about the constant intimidation,
ridicule, and insult to which he was subjected. (See supra at 5-6). Shaver
was angered and aggravated by the term "platehead." (App. at 982; Shaver
Dep. at 73.) Shaver would think about this degrading name and lost sleep
because of the ridicule to which he was subjected, and he felt pressure
every day to prove to others that he was not stupid (App. at 987, 992;
Shaver Dep. at 95-96, 116.) Shaver also believes that the harassment
affected possible promotional opportunities that would have been available
to him had he not been thought of as "not playing with a full deck" or
using only "half a brain." (App. at 998; Shaver Dep. at 139-40).
From an objective standpoint, there is no question that the harassment
here was pervasive. Shaver was taunted with the term "platehead" on a
daily basis for over two years by both supervisors and co-workers. For
example, a shift supervisor introduced Shaver to new employees as "platehead,"
called him this name every day, and laughed when Shaver asked him to stop. An
assistant supervisor referred to Shaver as "platehead" on a daily basis,
including the final day of Shaver's employment. All of the maintenance men
at the mill also called Shaver "platehead" as well as at least some of the
cleanup crew. But the verbal assault did not stop there. Shaver's disability
and subsequent brain surgery resulted in supervisors calling him "stupid,"
(7) saying that he was only "playing with half a brain," and not "playing
with a full deck," and treating him as if he were mentally retarded. (See
supra 4-5.) No reasonable person should be expected to work in this type of
environment.
The harassment was also severe enough to alter the conditions of Shaver's
employment and create an abusive working environment. It is true that the
harassment that took place here was verbal in nature. Nonetheless, this
type of constant and demeaning verbal barrage to which Shaver was subjected
on a daily basis by supervisors and coworkers alike is exactly the type of
behavior that the ADA was designed to prevent. See, e.g., 42 U.S.C. § 12101(b)
("It is the purpose of this chapter . . . to provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals
with disabilities"). (8)
This Court has recognized that constant verbal harassment can rise to the level
of actionable harassment under Title VII (and thus, by analogy, under the ADA
as well). See Ross v. Douglas County, 234 F.3d 391, 397 (8th Cir.
2000) (upholding
jury verdict in favor of plaintiff where there was evidence at trial
that employer
"constantly referred to [plaintiff] by a racial epithet"); Smith v. St. Louis
Univ., 109 F.3d 1261, 1264 (8th Cir. 1997) (derogatory gender-based comments
occurring on a frequent basis enough to create triable issue of fact
on harassment
claim); Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 356 (8th Cir. 1997)
(Court considers "only the evidence of racial epithets and the overt racial
tone of certain comments" in holding that employee was subjected to racially
hostile work environment); see also Burns v. McGregor Elec. Indus., Inc., 989
F.2d 959, 966 (8th Cir. 1993) (holding that judgment should be entered for
plaintiff on sexual harassment claim, Court stated that "[n]o female worker
must endure continual verbal abuse"). Other courts have also concluded that
acts of frequent verbal insults and jokes can constitute harassment. See, e.g.,
Miller v. Kenworth, 277 F.3d 1269, 1276 (11th Cir. 2002) ("As the
Seventh Circuit
has held, it is 'repeated incidents of verbal harassment that continue despite
the employee's objections [that] are indicative of a hostile work environment'
and not simply some 'magic number' of racial or ethnic insults.")
(quoting Shanoff
v. Ill. Dep't of Human Servs., 258 F.3d 696, 704 (7th Cir. 2001)); Boutros v.
Canton Reg'l Transp. Auth., 997 F.2d 198, 200 (6th Cir. 1993) (finding jury
question existed on issue of national-origin harassment where the
record reflected
"numerous disparaging ethnic stereotypical epithets [that] were
directed towards
[plaintiff] or stated in his presence, either by or with the knowledge of his
supervisors, throughout his term of employment"); Nichols v. Azteca
Rest. Enters.,
Inc., 256 F.3d 864, 873 (9th Cir. 2001) ("we hold that a reasonable
man would have
found the sustained campaign of [sexually oriented] taunts, directed
at [plaintiff]
and designed to humiliate and anger him, sufficiently severe and
pervasive to alter
the terms and conditions of his employment"). At a minimum, then, the stream of
disability-related names and insults directed at Shaver creates a
question for the
factfinder as to whether Shaver was subjected to a hostile working environment.
Significantly, this harassment would never have occurred if Shaver's
employer had
not illegally disclosed confidential medical information about Shaver's brain
surgery and metal plates. C.f., Bundy v. Jackson, 641 F.2d 934, 945
(D.C. Cir. 1981)
(noting that harassment "always represents an intentional assault on
an individual's
innermost privacy"). Such a disclosure by the company is a clear
violation of the ADA,
which requires that "[a]n employer must keep any medical information
on applicants or
employees confidential" including "medical information that an
individual voluntarily
tells the employer." EEOC, Technical Assistance Manual on Title I of
the ADA, 8 FEP
Manual (BNA) 405:6981, 7201-02 (Jan. 27, 1992) (emphasis in
original). (9) See also
42 U.S.C. § 12112(d); 29 C.F.R. § 1630.14(d). Had Cook complied with
the ADA and not
improperly disclosed this information, it is likely that none of this
harassment
would have occurred. And because the illegal disclosure was advanced
by someone in
a position of authority and trust, the harassment was that much worse.
See, e.g.,
Delph, 130 F.3d at 355 ("The two supervisors were primarily
responsible for creating
and maintaining the racially hostile atmosphere at [the company],
which makes the
behavior all the more egregious.").
Additionally, the comments here were not simply the result of joking
or employee
banter. First, the degrading remarks were targeted specifically at Shaver. See,
e.g., Delph, 130 F.3d at 356 ("[T]his is not a situation where racial jokes and
innuendo were merely bandied about the workplace with no particular target, or
where [plaintiff] was called names behind his back but was unaware of it. Much
of the racially hostile language not only was used in [plaintiff's]
presence, but
was directed at him."). In addition, the remarks were connected to
Shaver's ability
to do his job. Harassment that goes so directly to a plaintiff's
ability to perform
the job inherently undermines that individual's performance. See,
e.g., Smith, 109
F.3d at 1264 ("Even [harassing] conduct that does not seriously affect
employees'
psychological well-being, can and often will detract from employees'
job performance,
discourage employees from remaining on the job, or keep them from
advancing their
careers.") (quotation and citation omitted); Rodgers v.
Western-Southern Life Ins.
Co., 12 F.3d 668, 677 (7th Cir. 1993) ("unlawful racial abuse gradually eroded
[plaintiff's] self-esteem and adversely affected his job
performance"). And these
comments were not simply idle observations of Shaver's disability - they were
remarks intended to degrade and humiliate Shaver and question his intelligence.
Such degrading comments are further evidence of the severity of the
harassment here.
See Burns, 989 F.2d at 965 (degrading comments support plaintiff's
claims of sexual
harassment).
Indeed, the facts of this case are remarkably similar to those
confronted by the
Fourth Circuit in Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir.
2001). In Fox,
an individual experienced a non-work-related injury to his back and
was restricted
to light duty by his doctor. Id. at 172. As a result of the injury,
co-workers and
supervisors subjected the plaintiff to a barrage of verbal insults.
The plaintiff
and other disabled workers were called "handicapped MF's,"
"handicapped people,"
hospital people," and "911 hospital people." Id. at 173-74. And at a
meeting held
to discuss the plaintiff's back problems, the general foreman asked
"[h]ow in the
F---- do you take a S-H-I-T with these restrictions?" Id. at 173. The
Fourth Circuit
held that these facts, along with other harassment that was largely
verbal, were
sufficient to support a jury finding of disability harassment,
stating, "[W]e are
presented with evidence not of a few isolated incidents of harsh
language, teasing
or insensitivity, but rather of regular verbal harassment and
occasional physical
harassment over a period of nearly ten months directed at [plaintiff]
because of
his disability." Id. at 179. The facts of Shaver's case are arguably even more
severe, as Shaver was subjected daily to discriminatory comments on
the basis of
his disability for over two years, despite having clearly expressed
his displeasure
with such remarks. See also Flowers, 247 F.3d at 236-39 (sufficient
evidence to
support jury verdict for employee harassed as a result of HIV status
where harassment
included verbal insults and other degrading behavior).
The District Court Improperly Rejected Shaver's Retaliation Claim.
In addition to prohibiting discrimination on the basis of a
disability, the ADA - like
Title VII - prohibits an employer from retaliating against an
individual who has
filed a charge of discrimination. 42 U.S.C. § 12203(a). In this case,
the elements
of a retaliation claim require that an employee show that (1) he
engaged in protected
activity, (2) the employer took adverse action against him, and (3)
there is a causal
connection between the two events. See Smith v. St. Louis Univ., 109
F.3d 1261, 1265-1266
(8th Cir. 1997). After Shaver filed his original EEOC charge, while
he was looking for
another job, a supervisor told two prospective employers that Shaver
was "looking for a
get-rich-quick scheme" and was involved in "suing companies." (App. at
1094-95; Van Kirk
Dep. at 40-41; App. at 1192, 1198; Wright Dep. at 28, 51.) This type
of negative reference
constitutes illegal retaliation. See, e.g., Robinson v. Shell Oil
Co., 519 U.S. 337,
346 (1997) (former employees may bring suit against their previous
employers for
post-termination retaliation including negative job references);
Smith, 109 F.3d at
1266 (negative job references to prospective employers can establish
retaliation
under Title VII). Indeed, the negative job reference here specifically
addresses the
protected activity - "suing companies" - and there can be no question
that Salem's
retaliatory action was triggered by Shaver's protected activity of
filing an EEOC charge.
The court improperly rejected this claim on the basis that Shaver was
trying only to
"test" Salem with the reference requests and was not actually
interested in another
job at that time. Dist. Ct. Op. at *7. However, Shaver proffered
evidence that these
job inquiries were genuine and not manufactured. Indeed, the
prospective employers both
testified that Shaver had sought employment with them and that they
contacted Salem for
a reference. (App. at 1089, 1093-94; Van Kirk Dep. at 17-19, 36-40;
App. at 1187, 1191-92,
1195; Wright Dep. at 6-7, 24-28, 38-39.) The court thus clearly made
a factual finding
that was inappropriate at the summary judgment stage of the litigation.
Even assuming that Shaver was using the reference requests as a way to
determine Salem's
response, however, Salem's unlawful retaliation is nonetheless
prohibited by the ADA.
Giving negative references in retaliation for protected activity is
illegal, regardless
of whether the individual was genuinely seeking employment, because
it is the conduct
of the employer that is at issue in determining liability, not the
motivation of the
employee. See Kyles v. J.K. Guardian Sec. Sys., 222 F.3d 289, 298 n.5
(7th Cir. 2000)
(noting in a hiring discrimination case that many individuals "apply
for jobs that they
have no genuine intent to accept if offered to them. They apply to
inform themselves of
alternate careers, for experience in interviewing . . . and for a
whole host of other
reasons. When an employer adversely segregates or categorizes such
individuals on the
basis of race, the wrong that Title VII proscribes still occurs.").
The measure of damages for Salem's violation of the anti-retaliation
provision might
be affected by whether the negative reference caused Shaver not to
get a job, but
there should be no question that he would be entitled to some relief.
See Kyles, 222
F.3d at 300 ("The fact that they had no interest in actually working
for the company
certainly speaks to the nature and extent of their injuries as well as
the appropriate
relief. . . . But it does not rule out the prospect that they were
injured.") (original
emphasis). Indeed, interpreting similar language in the Fair Housing
Act, the Supreme
Court has held that individuals who are falsely told for
discriminatory reasons that
housing is unavailable are entitled to relief even if they have no
genuine interest
in the property. See Havens Realty Corp. v. Coleman, 455 U.S. 363,
373-74 (1982) (A
victim of discriminatory misrepresentation under the Fair Housing Act
"has suffered
injury in precisely the form the statute was intended to guard
against, and therefore
has standing to maintain a claim for damages under the Act's
provisions" even if the
victim "approached the real estate agent fully expecting that he would
receive false
information, and without any intention of buying or renting a home.").
Furthermore,
even if Shaver suffered no compensable injury as a result of Salem's
retaliation, he
would still be entitled to equitable relief, including an injunction
prohibiting Salem
from future acts of retaliation against him and others who might
engage in protected
activity. See, e.g., Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300,
1303-04 (8th Cir. 1995)
(even where monetary relief was precluded by ADA, injunctive relief
may be considered by
district court on remand); Bruso v. United Airlines, Inc., 239 F.3d
848, 864-65 (7th Cir.
2001) (employee who established claim of Title VII retaliation
entitled to "injunction
prohibiting further retaliation"). Thus, even under the court's
improper factual finding
that Shaver was only trying to "test the waters," summary judgment
should not have been
granted on Shaver's retaliation claim.
CONCLUSION
For the foregoing reasons, the Commission urges this Court to reverse
the district court's
grant of summary judgment on Shaver's disability harassment and
retaliation claims.
Respectfully submitted,
NICHOLAS M. INZEO
Acting Deputy General Counsel
PHILIP B. SKLOVER
Associate General Counsel
CAROLYN L. WHEELER
Assistant General Counsel
___________________________
JOSEPH A. SEINER
Attorney
Equal Employment
Opportunity Commission
Office of General Counsel
1801 L Street, N.W., Room 7020
Washington, D.C. 20507
(202) 663-4772
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in
F.R.A.P. 32(a)(7)(B). This brief contains 6989 words. See Fed. R. App.
P. 32(a)(7)
(B)(i). The brief was prepared using the WordPerfect 9 processing
system, in 14-point
proportionally spaced type for text and 14-point type for footnotes.
See Fed R. App.
P. 32(a)(5).
_____________________
Joseph A. Seiner
June 4, 2003
CERTIFICATE OF SERVICE
I, Joseph A. Seiner, hereby certify that on the 4th day of June, 2003, I caused
(1) copies of the attached brief, (2) a diskette (which has been scanned for
viruses and is virus-free) containing the brief in a PDF format, and (3) my
appearance to be sent via first class U.S. mail to:
Clerk of Court Marie L. Gockel
U.S. Court of Appeals Bratcher & Gockel
for the Eighth Circuit 1100 Main Street
Thomas F. Eagleton Courthouse P.O. Box 26156
Room 24.329 Kansas City, MO 64196-6156
111 South 10th Street Attorney for Plaintiff-Appellant
St. Louis, MO 63102
Thomas M. Hanna
McMahon & Berger
2730 N. Ballas Road
Suite 200
St. Louis, MO 63131
Attorney for Defendant-Appellee
__________________________
Joseph A. Seiner
EEOC / Office of General Counsel
1801 L Street, N.W., Room 7020
Washington, D.C. 20507
(202) 663-4772
June 4, 2003
1. We take no position on any other issue raised in this appeal.
2. Citations to App. refer to the designation of record on appeal
submitted by Shaver.
3. The harassment test for supervisors is appropriate here because much of the
harassment at issue was perpetuated by supervisors at the mill. See Bradley,
232 F.3d at 631 ("[Plaintiff] need not show that the [defendant] knew or should
have known of the harassment, however, because the majority of the conduct at
issue in this case allegedly occurred at the hands of Bradley's supervisors.").
Even if the co-worker test for liability were applied, however, there would be
no question that Salem was aware of the harassment which took place, yet failed
to take appropriate remedial action. Indeed, Shaver informed the mill manager as
well as at least two supervisors about the problem, but the
harassment continued.
4. While Salem unquestionably had knowledge that Shaver had a history of a
substantially limiting impairment, the statute contains no knowledge requirement
- all that is required for purposes of coverage is a history of a disability.
See 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(k). To establish liability for
disability based harassment, there must be evidence that the employer was aware
of the individual's history sufficient to support the conclusion that the
harassment was "because of" that history. The evidence is more than sufficient
in this case.
5. The Supreme Court has acknowledged the barriers faced by individuals
suffering from epilepsy. See Arline, 480 U.S. at 284 ("Even those who suffer
or have recovered from such noninfectious diseases as epilepsy or cancer have
faced discrimination based on the irrational fear that they might be
contagious.").
6. Shaver's consistent complaints about the company's harassing behavior and
Salem's failure to respond adequately demonstrate that Salem cannot satisfy the
Faragher and Ellerth affirmative defense. Shaver clearly took advantage of any
"preventive or corrective opportunities provided by the employer," yet Salem did
virtually nothing to correct the problem. See Todd v. Ortho Biotech, Inc., 175
F.3d 595, 597 (8th Cir. 1999) (quoting Burlington Indus., Inc. v. Ellerth, 524
U.S. 742 (1998)).
7. Even assuming the term "stupid" was not directly related to
Shaver's epilepsy,
when viewed in the context of the other comments, it is tinged with
discriminatory
animus. See, e.g., Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 799 (8th
Cir. 2003)
("All instances of harassment need not be stamped with signs of overt
discrimination
to be relevant under Title VII if they are part of a course of conduct which is
tied to evidence of discriminatory animus . . . . [A co-worker's]
early comments,
in which she demeaned Hispanics and specifically referred to both Hispanics and
[plaintiff] as 'stupid,' are sufficient for a fact-finder to find
that her ongoing
harassment of [plaintiff] was based on her national origin."
(quotation omitted)).
8. Indeed, Congress was aware of the myths and stereotypes surrounding
epilepsy. See
136 Cong. Rec. S7422, S7444 (1990) (daily ed. June 6, 1990)
(statement of Sen. Harkin)
("[T]he fear of epilepsy was once so great that people with this
disease were believed
to be possessed by the devil and were shut out of schools and the
workforce.").
9. Although the district court rejected on procedural grounds Shaver's
separate claim
for violation of the ADA's confidentiality provisions, at a minimum,
Salem's illegal
disclosure of private information adds to the severity of the
harassment in this case.
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