Certificate of Interested Persons...................................................... C-1

Table of Authorities............................................................................. iii

Statement of Interest............................................................................. 1

Statement of the Issues......................................................................... 3

Statement of the Case........................................................................... 3

A. Statement of Facts....................................................................... 3

B. District Court’s Decision.......................................................... 11

Argument............................................................................................. 14

I. A reasonable jury could find that Mueck’s alcoholism is a disability under the ADA......................................................... 16

II. A reasonable jury could find that Mueck requested a reasonable accommodation when he sought leave to attend substance-abuse counseling..................................................... 24

A. A reasonable jury could find that La Grange knew Mueck was disabled......................................................................... 26

B. La Grange admittedly knew that Mueck sought leave in order to attend substance-abuse classes............................ 28

C. An employer must consider leave as a reasonable accommodation for an alcoholic employee seeking substance-abuse treatment.................................................. 31

III. Mueck’s request for leave to attend substance-abuse counseling was a protected activity for purposes of his retaliation claim....................................................................... 34

Conclusion........................................................................................... 36

Certificate of Service

Certificate of Compliance

Table of Authorities

Cases

Alexander v. Wash. Metro. Area Transit Auth., 826 F.3d 544

(D.C. Cir. 2016).................................................................................... 16

Atkins v. Salazar, 677 F.3d 667 (5th Cir. 2011)................................... 31

Bailey v. Ga.-Pac. Corp., 306 F.3d 1162 (1st Cir. 2002)....................... 17

Barlia v. MWI Veterinary Supply, Inc., 721 F. App’x 439 (6th Cir. 2018)...................................................................................................... 18

Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001)................. 30

Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997).............. 12, 17, 21

Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586

(5th Cir. 2016)........................................................................... 15, 20, 21

Carmona v. Sw. Airlines Co., 604 F.3d 848 (5th Cir. 2010)............ 19-20

Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570 (5th Cir. 2020)........ 33

Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010).................. 26, 27

Credeur v. Louisiana, 860 F.3d 785 (5th Cir. 2017)............................. 25

Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476 (5th Cir. 2016)...................................................................................................... 29

EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606 (5th Cir. 2009)............................................................................................................... 29

EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999)................... 17

EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005)............. 27

Evans v. Fed. Express Corp., 133 F.3d 137 (1st Cir. 1998)................... 24

Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91 (1st Cir. 2007) 35

Fuller v. Frank, 916 F.2d 558 (9th Cir. 1990)....................................... 34

Griffin v. United Parcel Serv., Inc., 661 F.3d 216 (5th Cir. 2011)........ 27

Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003)...................... 35

Hostettler v. Coll. of Wooster, 895 F.3d 844 (6th Cir. 2018)................. 19

Jenkins v. Cleco Power, LLC, 487 F.3d 309 (5th Cir. 2007).................. 34

Jennings v. Towers Watson, 11 F.4th 335 (5th Cir. 2021).............. 25, 33

Kitty v. Hawk Aircargo, Inc. v. Chao, 418 F.3d 453 (5th Cir. 2005).... 23

Makinen v. City of New York, 857 F.3d 491 (2d Cir. 2017)................. 16

Mancini v. City of Providence, 909 F.3d 32 (1st Cir. 2018).................. 18

Mazzeo v. Color Resols. Int’l, LLC, 746 F.3d 1264 (11th Cir. 2014)... 20, 21

Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413 (5th Cir. 2017)...................................................................................................... 33

Oehmke v. Medtronic, Inc., 844 F.3d 748 (8th Cir. 2016).................... 19

Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437 (5th Cir. 2017)........... 26

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).................................... 14

Rinehart v. Weitzell, 964 F.3d 684 (8th Cir. 2020)............................... 19

Ristoff v. United States, 839 F.2d 1242 (7th Cir. 1988)........................ 34

Scheffler v. Dohman, 785 F.3d 1260 (8th Cir. 2015)............................ 17

Summers v. Altarum Inst., Corp., 740 F.3d 325 (4th Cir. 2014).......... 21

White v. Pauly, 137 S. Ct. 548 (2017)..................................................... 3

Windham v. Harris Cnty., 875 F.3d 229 (5th Cir. 2017)...................... 27

Statutes

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.

§ 12101(b)(1).................................................................................. 14

§ 12102(1)(A)................................................................................. 15

§ 12102(1)(B).................................................................................. 15

§ 12102(1)(C).................................................................................. 15

§ 12102(2)(A)............................................................................ 15, 22

§ 12102(2)(B).................................................................................. 22

§ 12102(3)(A)................................................................................. 17

§ 12102(4)(A)................................................................................. 15

§ 12102(4)(B).................................................................................. 16

§ 12102(4)(D)................................................................ 12, 18, 21, 24

§ 12111(9)....................................................................................... 25

§ 12112(a)....................................................................................... 24

§ 12112(b)....................................................................................... 24

§ 12112(b)(5)(A)............................................................................. 24

§ 12114(c)(4)................................................................................... 31

§ 12117.............................................................................................. 1

§ 12203(a)....................................................................................... 34

§ 12205a...................................................................................... 1, 16

Americans with Disabilities Act Amendments Act,

Pub. L. No. 110-325, 122 Stat. 3553 (2008).......................... 1, 12, 15-22

Rules and Regulations

29 C.F.R. § 1630.2(g)(3)....................................................................... 17

29 C.F.R. § 1630.2(i)(1)........................................................................ 16

29 C.F.R. § 1630.2(j)(1)(iv)................................................................... 16

29 C.F.R. § 1630.2(j)(1)(vii).................................................................. 16

29 C.F.R. § 1630.2(j)(4)(i)..................................................................... 22

29 C.F.R. § 1630.2(o)............................................................................ 25

29 C.F.R. § 1630.2(q)............................................................................ 31

29 C.F.R. § 1630.9(a)............................................................................ 24

Federal Rule of Appellate Procedure 29(a)........................................ 2

Administrative Authority

EEOC Enforcement Guidance: Applying Performance and Conduct Standards to Employees with Disabilities, 2008 WL 4786697

(Sept. 25, 2008)............................................................................... 32, 33

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335 (Oct. 17, 2002)............................................. 24, 27, 29, 33

EEOC Enforcement Guidance: Retaliation and Related Issues, 2016 WL 4688886 (Aug. 25, 2016)............................................................... 35

Interpretive Guidance on Title I of the Americans with Disabilities Act,

29 C.F.R. Pt. 1630, App.

§ 1630.2(k)...................................................................................... 18

§ 1630.2(n)...................................................................................... 32

Other Authority

Clive Harper et al., “Neuropathological Alterations in Alcoholic Brains: Studies Arising from the New South Wales Tissue Resource Centre,” 27 Progress in Neuro-Psychopharmacology & Biological Psychiatry 951 (2003), https://www.sciencedirect.com/science/article/abs/pii/S0278584603001556?via%...................................................................................................... 23

National Institute on Alcohol Abuse and Alcoholism, “Alcohol and the Brain: An Overview,” https://www.niaaa.nih.gov/alcohols-effects-health/alcohol-and-brain-overview...................................... 22

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with interpreting the definition of “disability” under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12205a, and with interpreting and enforcing Title I of the statute, id. § 12117. In 2008, Congress amended the ADA to expand the scope of its protections. Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008). In this case, the district court disregarded the amendments and relied on pre-ADAAA law to hold that the plaintiff was not disabled. Whether or not its holding would have been correct prior to 2008, it is incorrect today.

The court further erred by holding that, even assuming the plaintiff was disabled, he had not adequately requested a reasonable accommodation for his disability. In so holding, the district court faulted the plaintiff for failing to meet several incorrect legal standards. First, the court said, the plaintiff failed to use specific words like “disability” in making his request. Second, in analyzing the plaintiff’s request for leave to attend court-ordered substance-abuse treatment, the court held that such treatment could not be disability-related because it was a condition of probation rather than a self-initiated attempt to address addiction. Third, the court ruled that there was no need for the employer to consider leave as a reasonable accommodation at all, because attendance requirements constitute job-performance standards for employment.

Finally, having held that the plaintiff had not requested a reasonable accommodation, the court concluded that he had not engaged in protected activity for purposes of his retaliation claim. Because the court was wrong about the plaintiff not having requested a reasonable accommodation, it was, ipso facto, wrong about his not having engaged in protected activity.

The EEOC has a substantial interest in the proper interpretation of the laws it enforces. Accordingly, the EEOC files this brief pursuant to Federal Rule of Appellate Procedure 29(a).

Statement of the Issues [1]

1. Could a reasonable jury find that the plaintiff’s alcoholism constitutes a disability under the ADA?

2. Could a reasonable jury find that the plaintiff requested a reasonable accommodation under the ADA when he sought leave to attend substance-abuse counseling?

3. Was the plaintiff’s request for leave to attend substance-abuse counseling a protected activity for purposes of his retaliation claim?

Statement of the Case

A. Statement of Facts [2]

Defendant La Grange Acquisitions, L.P. (“La Grange”) runs a natural-gas-processing plant near Karnes City, Texas. ROA.384. All of its operators work the day shift (6:00 a.m. to 6:00 p.m.) for seven days, take the next seven days off, and then work the night shift (6:00 p.m. to 6:00 a.m.) for seven days. They take the following seven days off, and then the cycle begins again. ROA.384-85.

Plaintiff Clint Mueck began working as an operator at La Grange’s plant in 2015. ROA.166. Although Mueck was an alcoholic, he would have, at most, one or two drinks in the evening on the days that he worked. He was never inebriated while on duty. ROA.524. However, whenever he was not working, he was “full bore.” ROA.524. He began drinking first thing in the morning and continued drinking throughout the day, sometimes with other heavy-drinking friends and sometimes alone. ROA.435. He drank until he passed out or became too sick to keep drinking, at which point he would sleep until noon and wake up with a “terrible hangover” and “my mind in a total fog.” ROA.435. He would deal with this by drinking again. RO.435. On a typical day off, he would drink twelve to eighteen beers, plus vodka drinks. ROA.435.

While Mueck was on a drinking binge, he did not shower, brush his teeth, clean his house, cook, or keep up with personal chores. ROA.435. He avoided family members and friends because he did not want them to know he drank as much as he did. ROA.435. He stayed away from family functions for years, missed church, and slept through alarms. ROA.435-36. The drinking made him depressed, impaired his judgment, and significantly diminished his ability to concentrate or think clearly. ROA.184, ROA.435.

Mueck was arrested several times for drinking-related infractions. He received his first DWI in 1997 and a second in 2017, and was then charged twice for public intoxication. ROA.346. In March 2019, he received a third DWI. ROA.346. Mueck testified that this was the wake-up call he needed. “[S]itting in a jail cell for [the] third or fourth time pertaining to an alcohol-related incident, and … it’s kind of like you come to the [realization] … that you’re powerless over alcohol and that your life had become unmanageable and that’s where I was.” ROA.187-88. He researched Alcoholics Anonymous (“AA”) and began attending meetings. ROA.404.

Mueck immediately disclosed the March 2019 DWI to his supervisor, Kevin Pawelek. ROA.385, ROA.436. He told Pawelek that this was not his first DWI and that he had previously been charged with public intoxication. ROA.436. He said that he was an alcoholic, that his life had become unmanageable, that he wanted to turn his life around, and that he was going to seek help. ROA.187-88, ROA.436. Pawelek encouraged Mueck to reach out to the Employee Assistance Program. ROA.189.

At approximately the same time, Mueck told manager of operations Jerry Frausto that he had “a drinking problem.” ROA.189. Like Pawelek, Frausto advised Mueck to contact the Employee Assistance Program. ROA.189. Frausto then emailed Pawelek, director of operations Ricky Bonewald, and senior manager of human resources Raymond De La Vega regarding Mueck’s DWI. ROA.394. He told them that this was Mueck’s second offense of which he was aware, and noted that Mueck did not drive a company car. ROA.394.

In May 2019, Mueck finally admitted his addiction to his primary care physician. ROA.436. The doctor prescribed Naltrexone to help ease Mueck’s alcohol cravings, but cautioned him that medication alone would not solve the problem. ROA.436. He advised Mueck to seek counseling and a support group. ROA.436.

One week later, Mueck met with Pawelek again and told him that, as conditions of probation, the court had ordered him to use a breathalyzer three times per day, submit to random testing, and attend once-a-week substance-abuse classes from 6:00 p.m. to 8:00 p.m. for three months. ROA.436-37. Mueck added that he needed this program because his life had fallen apart and his drinking was affecting every aspect of his life. ROA.437. He told Pawelek that he was committed to stopping drinking, that he had been sober for over two months, and that he was attending AA meetings four to five times per week. ROA.437.

Pawelek emailed Frausto about this conversation. ROA.404. He reported that Mueck would need to use a breathalyzer while at work and, incorrectly, that Mueck would need leave to attend twice-weekly substance-abuse classes for three months from 6:00 p.m. to 8:00 p.m. ROA.404. He added that Mueck would have more information on the classes in the following week. ROA.404. Pawelek said he had asked Mueck how he was doing, and that Mueck had told him he had been sober for sixty days and was attending AA meetings four to five times per week. ROA.404. Frausto forwarded this email to Bonewald and De La Vega. ROA.403-04.

Mueck subsequently clarified that the substance-abuse classes would be only once a week for three months. ROA.385-86. In light of the one-hour travel time to and from class, ROA.437, this would affect the end of three day shifts and the beginning of four night shifts in total in the three-month period. ROA.342, ROA.439.

In litigation, Pawelek, Bonewald, and De La Vega all denied knowing that Mueck was an alcoholic. ROA.361-62, ROA.376-77, ROA.387. Pawelek denied that Mueck had told him, although he admitted knowing that Mueck was struggling and that he had an alcohol dependency problem. ROA.466. De La Vega said he could not assume from the fact that Mueck was attending AA meetings four to five times a week that he might be an alcoholic or have an alcohol problem. ROA.362. Bonewald agreed. “Just because you go to a meeting,” he said, “doesn’t mean you definitely have a problem.” ROA.459.

De La Vega and Bonewald testified that Mueck’s request for leave was simply a request to comply with a condition of probation. ROA.364, ROA.459. “There is a difference,” De La Vega explained. “[W]ith one he is being mandated by the court to participate in these form of classes … as opposed to saying individually, I am needing help or something to that effect.” ROA.364. Bonewald testified that the court’s order did not prove that Mueck had an alcohol problem, despite Mueck’s two DWIs. He stated, “I don’t assume.” ROA.459.

Mueck found someone who was willing to cover his absences for the three day shifts when he had to leave early to attend substance-abuse counseling, but no one offered to cover the four night shifts when he had to arrive late. ROA.353-54, ROA.386, ROA.409, ROA.439. Pawelek never discussed options other than shift swaps, even though the supervisor or lead operator sometimes filled in for absent employees. ROA.439. Indeed, this was a specific function of the lead operator. ROA.439. “It was [Mueck’s] job to find coverage,” Bonewald explained. ROA.380.

Bonewald testified that it would have been different if the company’s Employee Assistance Program had sent Mueck to substance-abuse classes. In that case, Bonewald said, “he would be off getting help and then he would come back when help is done,” and in the meantime La Grange would have covered his shifts. ROA.464. Likewise, Bonewald said, it would have been different if Mueck had followed the procedures for requesting vacation leave. ROA.466-67. Because he did not do so, Bonewald explained, the fact that La Grange would have covered such leave was “irrelevant.” ROA.467.

In late May, La Grange suspended Mueck for one week while it considered how to handle his leave request. ROA.365. At the end of the week, De La Vega and Frausto informed Mueck that he was terminated. ROA.212. The Human Resources department had reached this decision, they told him, “based on the conflict … that these classes will have on your work schedule.” ROA.498.

Following his termination, Mueck attended the court-mandated substance-abuse classes. ROA.442. David Woodlee, his counselor, testified that the attendees were a mix of people who were there voluntarily and people who were there because of court orders. ROA.442. The treatment was identical, he said. ROA.442. In Woodlee’s view, it was “critical” for Mueck to participate “[b]ecause [he] was struggling with alcohol addiction.” ROA.442.

Mueck testified in October 2021 that the counseling was successful. ROA.440. He continues to use the coping skills that he developed in Woodlee’s class, and he has remained sober since March 2019. ROA.440. Nonetheless, his sobriety is a daily struggle. ROA.185. At least twice a month, he “draw[s] back” and cannot get out of bed. ROA.524. He explained, “[My alcoholism] is always going to impact my daily life…. [T]here’s always temptation around … [i]t’s an ongoing day-to-day process.” ROA.185.

B. District Court’s Decision

Mueck sued La Grange under the ADA for failure to provide a reasonable accommodation for his disability of alcoholism, and for discriminatory and/or retaliatory discharge. ROA.8. The district court granted summary judgment to La Grange. ROA.555.

In relevant part, the court first held that La Grange did not violate the ADA by terminating Mueck because his alcoholism was not a covered disability. ROA.567. It acknowledged that, under the ADAAA, courts must “construe the definition[] of ‘disability’ … broadly and in favor of expansive coverage.” ROA.563. It further acknowledged that the ADAAA provides that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” ROA.563 (quoting 42 U.S.C. § 12102(4)(D)). Nonetheless, the court relied on pre-ADAAA case law to hold that Mueck’s alcoholism did not constitute a disability because any impairments that it caused, no matter how severe, were “short-term and not permanent.” ROA.566 (citing Burch v. Coca-Cola Co., 119 F.3d 305, 316 & n.9 (5th Cir. 1997)). This holding, the court said, “is still binding authority.” ROA.566.

The court’s ruling that Mueck was not disabled doomed not only his discrimination claim, but also his failure-to-accommodate claim. Yet, even assuming that Mueck was disabled, the court said, he could not prevail on his reasonable accommodation claim for three independent reasons.

First, the court said, Mueck never informed La Grange that he was disabled. ROA.569. Second, he never told his supervisors that he was requesting leave as an accommodation for his disability; he told them only that “the court ordered him to attend substance abuse classes as part of his criminal probation.” ROA.569. “[T]he request to miss work to comply with court-ordered probation conditions,” the court reasoned, “is too attenuated from Mueck’s alcoholism to conclude Mueck requested accommodation for a physical or mental impairment created by the disability of alcoholism.” ROA.570. Finally, the court said, La Grange was free to apply its work-attendance requirements to Mueck just as it would apply them to other employees, “even if any unsatisfactory behavior or performance is related to the alcoholism.” ROA.570 (citing 42 U.S.C. § 12114(c)).

The court also held that Mueck could not establish a prima facie case of retaliation. ROA.572. A prima facie case would require him to show that (1) he engaged in protected activity, (2) La Grange took an adverse employment action against him, and (3) there was a causal connection between the two. ROA.571 (citing Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 304 (5th Cir. 2020)). Although a request for a reasonable accommodation may constitute protected activity, the court said, Mueck did not make such a request; rather, he requested leave only for the purpose of attending court-ordered classes. ROA.572. La Grange terminated Mueck because of his inability to comply with general attendance requirements, the court said, which the ADA allowed it to do. ROA.572.

Argument

Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1); see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (“To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act)….” ) (citations omitted).

An individual with a disability is defined as having “a physical or mental impairment that substantially limits one or more major life activities of such individual,” 42 U.S.C. § 12102(1)(A), having “a record of such an impairment,” id. § 12102(1)(B), or being regarded as having one, id. § 12102(1)(C).

In 2008, Congress found that courts had been construing the definition of disability too narrowly. Pub. L. No. 110-325, § 2(a), 122 Stat. 3553. Thus, it enacted the ADAAA to “reinstat[e] a broad scope of protection to be available under the ADA.” Id. § 2(b)(1), 122 Stat. 3553; see generally Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016) (“[The 2008] amendments ‘make it easier for people with disabilities to obtain protection under the ADA.’”) (quoting 29 C.F.R. § 1630.1(c)(4)).

In accordance with this statutory purpose, Congress provided that “[t]he definition of disability … shall be construed in favor of broad coverage.” 42 U.S.C. § 12102(4)(A). It defined major life activities to include caring for oneself, concentrating, thinking, and the operation of neurological and brain functions. Id. § 12102(2)(A)-(B); see also 29 C.F.R. § 1630.2(i)(1)(i)-(ii) (same); 42 U.S.C. § 12205a (authorizing EEOC to issue regulations implementing the definition of disability). Congress also changed the inquiry into whether an impairment substantially limits a major life activity “to require a degree of functional limitation that is lower than the standard for ‘substantially limits’ applied prior to the ADAAA.” 29 C.F.R. § 1630.2(j)(1)(iv); see also 42 U.S.C. § 12102(4)(B) (similar). And it provided that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12012(4)(D); see also 29 C.F.R. § 1630.2(j)(1)(vii) (same).

I. A reasonable jury could find that Mueck’s alcoholism is a disability under the ADA.

Alcoholism is an impairment under the ADA. Makinen v. City of New York, 857 F.3d 491, 495 (2d Cir. 2017) (“The … ADA treat[s] alcoholism as an impairment that can form the basis of a disability discrimination suit.”); Alexander v. Wash. Metro. Area Transit Auth., 826 F.3d 544, 548 (D.C. Cir. 2016) (finding “no dispute in this case that [plaintiff’s] alcoholism is an ‘impairment’ under the ADA”; citing, inter alia, H.R. Rep. No. 485, 101st Cong., 2d. Sess. pt. 2, at 51 (1990) (“physical or mental impairment” under the ADA includes “drug addiction and alcoholism”)); Scheffler v. Dohman, 785 F.3d 1260, 1261 (8th Cir. 2015) (“This court has previously recognized that alcoholism may qualify for disability under the ADA when it limits a major life activity.”). As with all other impairments, whether alcoholism rises to the level of an actual disability depends on whether it substantially limits one or more of an individual’s major life activities. Bailey v. Ga.-Pac. Corp., 306 F.3d 1162, 1167-68 (1st Cir. 2002).[3]

Prior to enactment of the ADAAA, this Court held that “[p]ermanency, not frequency, is the touchstone of a substantially limiting impairment.” Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir. 1997). This Court also held that impairments did not constitute disabilities when in remission. EEOC v. R.J. Gallagher Co., 181 F.3d 645, 655 (5th Cir. 1999) (cancer was not a disability because it was in “complete remission,” and plaintiff’s only current limitation was the need for “six monthly chemotherapy treatments”).

The ADAAA abrogated these holdings. Pursuant to the ADAAA, “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D); see also Mancini v. City of Providence, 909 F.3d 32, 40 (1st Cir. 2018) (ADAAA “defenestrated [the ‘permanent or long term’] requirement”); Barlia v. MWI Veterinary Supply, Inc., 721 F. App’x 439, 445 (6th Cir. 2018) (ADAAA “explicitly rejected a number of standards formulated by the Supreme Court, such as the requirement that the impairment be ‘permanent or long-term’ to qualify as a disability under the ADA”); Interpretive Guidance on Title I of the Americans with Disabilities Act (“Interp. Guidance”), 29 C.F.R. Pt. 1630, App. § 1630.2(k) (following enactment of the ADAAA, “an individual who has cancer that is currently in remission is an individual with a disability under the ‘actual disability’ prong because he has an impairment that would substantially limit normal cell growth when active”).

Accordingly, courts no longer require permanent, long-term, or active limitations to establish an actual disability. See Rinehart v. Weitzell, 964 F.3d 684, 688 (8th Cir. 2020) (chronic diverticulitis was a disability where it caused substantial limitations in major life activities when active, even though the flare-ups were rare); Hostettler v. Coll. of Wooster, 895 F.3d 844, 854 (6th Cir. 2018) (episodic panic attacks were a disability where they caused substantial limitations in major life activities when active, even though the attacks lasted only several minutes); Oehmke v. Medtronic, Inc., 844 F.3d 748, 756 (8th Cir. 2016) (“Oehmke’s cancer, even while in remission, is clearly a covered disability under the ADA.”).

In dicta, this Court has already recognized that the ADAAA changed the rules regarding episodic impairments. The plaintiff in Carmona v. Southwest Airlines Co., 604 F.3d 848 (5th Cir. 2010), had psoriatic arthritis, which caused painful flare-ups and, as often as twice per week, made him unable to walk. Id. at 857. Rejecting the plaintiff’s argument that the ADAAA should apply to pre-ADAAA facts, the Court noted that the ADA amendments “would be very favorable to Carmona’s case if they [were] applicable, because they make it easier for a plaintiff with an episodic condition like Carmona’s to establish that he is an ‘individual with a disability.’” Id. at 855. Nonetheless, even applying pre-ADAAA standards, this Court held that the frequency of the plaintiff’s flare-ups rendered him disabled. Id. at 858-59.

In another context, this Court reversed an award of summary judgment against a plaintiff where the district court applied pre-ADAAA law to facts arising after the effective date of the ADAAA. The plaintiff in Cannon v. Jacobs Field Services North America, Inc., 813 F.3d 586 (5th Cir. 2016), had a torn rotator cuff that limited the use of his right arm. Id. at 588. The district court held that he was not disabled because the “injured shoulder did not substantially impair[] his daily functioning.” Id. at 590. This Court stated, “Whatever merit that finding of no disability may have had under the original ADA, it is at odds with changes brought about by the ADA Amendments Act of 2008.” Id.

Other courts, too, have reversed judgments that erroneously relied on pre-ADAAA standards. See, e.g., Mazzeo v. Color Resols. Int’l, LLC, 746 F.3d 1264, 1270 (11th Cir. 2014) (“Given the new standards and definitions put in place by the ADAAA, [the] evidence was enough for [plaintiff] to present a prima facie case on his ADA … disability claim[].”); Summers v. Altarum Inst., Corp., 740 F.3d 325, 330 (4th Cir. 2014) (although it would have been “entirely reasonable” to hold that plaintiff was not disabled under pre-ADAAA law, plaintiff “has unquestionably alleged a ‘disability’ under the ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion”).

Here, the district court made the same mistake as the district courts in Cannon, Mazzeo, and Summers by relying on superseded law. Disregarding the ADAAA’s provision regarding episodic impairments, the district court stated that “[this] Court’s finding in Burch v. Coca Cola that the plaintiff’s alcoholism was not a disability due to the temporary nature of the impairments created remains unaffected.” ROA.566. In fact, the ADAAA abrogated the “permanent or long term” standard. See 42 U.S.C. § 12102(4)(D). Because the ADA now expressly covers episodic impairments, the court should have analyzed the effects of Mueck’s alcoholism during the periods in which he was intoxicated, not during the periods in which he was not.

Two out of every four weeks, Mueck engaged in non-stop drinking binges, often alone. ROA.435, ROA.524; see 29 C.F.R. § 1630.2(j)(4)(i) (“the condition under which the individual performs the major life activity” may be relevant to whether he is substantially limited). During the long periods when he was intoxicated, Mueck’s functioning was severely compromised. He could not care for himself, concentrate, or think clearly. ROA.435-36. The ADA specifically lists all of these functions as major life activities. 42 U.S.C. § 12102(2)(A). Given the chronic nature of his limitations, a jury could find that Mueck’s episodic drinking rendered him substantially limited in all three areas.

Additionally, a jury could find that Mueck’s drinking substantially limited him in a major life activity on a permanent—not episodic—basis. The ADA defines “major life activity” to include “operation of a major bodily function, including … neurological [or] brain … functions.” 42 U.S.C. § 12102(2)(B). According to the National Institute on Alcohol Abuse and Alcoholism (“NIAAA”), “Alcohol interferes with the brain’s communication pathways and can affect the way the brain looks and works. Alcohol makes it harder for the brain areas controlling balance, memory, speech and judgment to do their jobs…. Long-term, heavy drinking causes alterations in the neurons, such as reductions in their size.” NIAAA, “Alcohol and the Brain: An Overview,” https://www.niaaa.nih.gov/alcohols-effects-health/alcohol-and-brain-overview (last visited Apr. 12, 2022).[4] Some of these changes are permanent. Clive Harper et al., “Neuropathological Alterations in Alcoholic Brains: Studies Arising from the New South Wales Tissue Resource Centre,” 27 Progress in Neuro-Psychopharmacology & Biological Psychiatry 951 (2003), https://www.sciencedirect.com/science/article/abs/pii/S0278584603001556?via% (last visited Apr. 15, 2022).

The fact that Mueck had been sober for two months when La Grange terminated him is of no consequence. Mueck testified that sobriety was a daily challenge, and that his alcoholism would “always impact my daily life.” ROA.185. At any time, he might give in to temptation and find himself binge-drinking once again. See Evans v. Fed. Express Corp., 133 F.3d 137, 140 (1st Cir. 1998) (“[R]ecoveries from substance abuse or addiction on one try are notoriously chancy.”). Thus, he was not cured—he was in remission. To the extent that Mueck was disabled when actively drinking, he remained disabled while sober. See 42 U.S.C. § 12102(4)(D).

II. A reasonable jury could find that Mueck requested a reasonable accommodation when he sought leave to attend substance-abuse counseling.

Barring undue hardship, the ADA requires employers to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). Failure to do so is a prohibited form of “discriminat[ion].” 42 U.S.C. §§ 12112(a), (b), (b)(5)(A).

Reasonable accommodations constitute modifications to the work environment or to the way in which things are customarily done. See id. § 12111(9); 29 C.F.R. § 1630.2(o). Their purpose is to “remove[ ] workplace barriers for individuals with disabilities.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (“Reas. Accom. Guidance”), 2002 WL 31994335, at *2 (Oct. 17, 2002). Such barriers may include attendance policies that prevent an individual with a disability from seeking treatment for disability-related impairments. See Jennings v. Towers Watson, 11 F.4th 335, 344 (5th Cir. 2021) (“Time off, whether paid or unpaid, can be a reasonable accommodation.”) (citation omitted).

In order to establish a prima facie case for failure to accommodate, an employee must show that: “(1) the plaintiff is a ‘qualified individual with a disability;’ (2) the disability and its consequential limitations were ‘known’ by the covered employer; and (3) the employer failed to make ‘reasonable accommodations’ for such known limitations.” Credeur v. Louisiana, 860 F.3d 785, 792 (5th Cir. 2017) (citation omitted). For the reasons described above, a jury could readily find that Mueck is an individual with a disability. The remaining questions are whether La Grange knew that Mueck was disabled, whether it knew that he was requesting leave for the purpose of treating his substance-abuse problem, and whether leave could have been a reasonable accommodation—all of which a jury could answer “yes.”

A. A reasonable jury could find that La Grange knew Mueck was disabled.

Notwithstanding La Grange’s professed ignorance, the record would support a jury finding that La Grange knew Mueck was disabled. The district court acknowledged that “Mueck did inform his management that he was an alcoholic,” but found it dispositive that “Mueck did not specifically identify his alcoholism as a disability.” ROA.569. The ADA did not require him to do so. Employees need not use “magic words” when requesting a reasonable accommodation. Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 444 (5th Cir. 2017); see also Colwell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir. 2010) (“[E]ither by direct communication or other appropriate means, the employee must make clear that [the employer] wants assistance for his or her disability.… Indeed, [t]he law does not require any formal mechanism or ‘magic words’ to notify an employer that an employee needs an accommodation .…”) (internal citations and quotation marks omitted).

When a disability and its resulting limitations are “open, obvious, and apparent” to the employer, the employer may not claim to be unaware. Windham v. Harris Cnty., 875 F.3d 229, 237 (5th Cir. 2017) (citation omitted) (ADA Title II case applying Title I standards); Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (5th Cir. 2011) (citation omitted) (ADA Title I). If notice of a disability is “ambiguous” but sufficient to raise the possibility that an employee may require reasonable accommodation under the ADA, the employer must ask for clarification. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 804 (7th Cir. 2005); Colwell, 602 F.3d at 507 (“[C]ircumstances will sometimes require the employer to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.”) (citation omitted); see also Reas. Accom. Guidance, 2002 WL 31994335, at *5 (employee’s reference to “medical condition” may require employer to investigate whether condition constitutes a disability under the ADA).

In this case, Mueck’s supervisors and the HR department knew that Mueck had been arrested more than once for driving while intoxicated; that he was attending AA meetings four or five times per week; and that a court had ordered him to blow into a breathalyzer three times per day, submit to random testing, and enter substance-abuse counseling. ROA.394, ROA.403-04, ROA.436-37. Mueck told Pawelek and Frausto that he was an alcoholic. ROA.189, ROA.437. He also told Pawelek that his life had fallen apart because of his drinking. ROA.437. Pawelek admitted knowing that Mueck was struggling with an alcohol-dependency problem. ROA.466. A reasonable jury could find that this information was sufficient to put La Grange on notice that Mueck was substantially limited in one or more major life activities and was, therefore, disabled.

B. La Grange admittedly knew that Mueck sought leave in order to attend substance-abuse classes.

La Grange knew that Mueck was seeking leave for substance-abuse treatment. The ADA did not require him to mention the statute or state that he needed a “reasonable accommodation.” Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 481 (5th Cir. 2016) (“Special words, like ‘reasonable accommodation,’ need not be uttered[.]”). He needed to convey only that the leave was “for a medical condition-related reason.” EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 621 (5th Cir. 2009); see also Reas. Accom. Guidance, 2002 WL 31994335, at *4 (similar).

Both La Grange and the district court found it dispositive that the impetus for treatment was a court order. See ROA.570 (court finding Mueck’s request for leave to attend court-ordered classes was “too attenuated” from his alcoholism to warrant accommodation under the ADA). Regardless of the reason Mueck sought treatment—whether it was voluntary or due to a court order—the fact remains that he needed leave to attend substance-abuse counseling. We are unaware of any authority suggesting that the ADA distinguishes between court-ordered counseling and self-initiated counseling.

Mueck gave La Grange a copy of the court order requiring him, as a condition of probation, to “attend, participate, and successfully complete [a] Substance Abuse Intensive Outpatient Program.” ROA.495 (emphasis added). A jury could find that La Grange knew that the purpose of requiring Mueck to “successfully complete” this program was to treat his disability of alcoholism, thereby preventing future DWIs.

Had Mueck sought leave to meet court-imposed community-service obligations, or to attend a court hearing, we would agree that La Grange would not have to consider granting him leave as a reasonable accommodation. Unlike substance-abuse treatment, community-service requirements and court hearings do not help an individual surmount the limitations stemming from his alcoholism; they are solely consequences of behavior. In those circumstances, the ADA’s accommodation requirement would not apply. Cf. Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1186, 1188 (9th Cir. 2001) (no ADA violation where plaintiff did not request reasonable accommodation for court-ordered substance-abuse treatment; employer knew only that she was in jail and missed three consecutive scheduled shifts).

C. An employer must consider leave as a reasonable accommodation for an alcoholic employee seeking substance-abuse treatment.

The district court erroneously relied on a provision of the ADA stating that an employer “may hold an employee who … is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the … alcoholism of such employee.” 42 U.S.C. § 12114(c)(4). We agree that La Grange was entitled to hold Mueck to the same qualification, performance, and behavioral standards as other employees, but attendance requirements are none of those things.

“Qualification standards” are “the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired.” 29 C.F.R. § 1630.2(q); see also Atkins v. Salazar, 677 F.3d 667, 675 n.12 (5th Cir. 2011) (quoting regulation). Examples may include possessing specific training, licenses, or certificates; meeting lifting requirements; or having the ability to work under pressure. EEOC Enforcement Guidance, The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities (“Perf. & Conduct Standards Guidance”), 2008 WL 4786697, at *2 (Sept. 25, 2008). Attendance requirements, of course, have no bearing on whether an individual is eligible for his position.

Job-performance standards are likewise unrelated to attendance requirements. Performance standards are “quantitative and qualitative requirements for performance of essential functions,” including timetables for producing work. Id. at *3. “If an employer requires its typists to be able to accurately type 75 words per minute,” for example, “it will not be called upon to explain why an inaccurate work product, or a typing speed of 65 words per minute, would not be adequate.” Interp. Guidance, 29 C.F.R. Pt. 1630, App. § 1630.2(n). Although attendance may make it easier for an employee to satisfy performance standards, presence at the workplace is neither a quantitative nor qualitative measure of output.

Nor does this case implicate behavior standards, which cover work-related conduct such as violence, property destruction, insubordination, or sexual harassment. See Perf. & Conduct Standards Guidance, 2008 WL 4786697, at *9-10; see also Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570, 583 n.49 (5th Cir. 2020) (ADA does not protect “misconduct in the workplace”). Mueck did not violate any behavior standards. He never came to work intoxicated, and his DWI occurred during off-duty hours in his personal vehicle. He did not drive a company car.

This Court has recognized that short-term leave is ordinarily a form of reasonable accommodation. See Jennings, 11 F.4th at 344 (“Time off, whether paid or unpaid, can be a reasonable accommodation.”) (citation omitted); Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 419 (5th Cir. 2017) (“leave that is limited in duration may be a reasonable accommodation”). Leave can be a reasonable accommodation, in particular, for substance-abuse treatment. See Reas. Accom. Guidance, 2002 WL 31994335, at *14 (“An employee with a disability may need leave for a number of reasons related to the disability, including … substance abuse treatment[.]”); see also Fuller v. Frank, 916 F.2d 558, 562 (9th Cir. 1990) (Rehabilitation Act of 1973, 29 U.S.C. § 794)[5] (reasonable accommodation requires that employer give alcoholic employee time off to participate in treatment program); Ristoff v. United States, 839 F.2d 1242, 1243 (7th Cir. 1988) (Rehabilitation Act) (“[T]he denial of sick leave to an alcoholic who has requested it in order to obtain treatment may constitute a prima facie showing of discrimination based on a handicap[.]”). Accordingly, a jury could find that, in requesting leave to attend substance-abuse counseling, Mueck sought a reasonable accommodation.

III. Mueck’s request for leave to attend substance-abuse counseling was a protected activity for purposes of his retaliation claim.

Mueck’s request for a reasonable accommodation was protected activity for purposes of his retaliation claim. In relevant part, the ADA prohibits retaliation “because [an] individual has opposed any act or practice made unlawful by this chapter.” 42 U.S.C. § 12203(a). Requesting a reasonable accommodation satisfies this requirement. Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316-17 & n.3 (5th Cir. 2007); see also Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007) (“Requesting an accommodation is protected conduct for purposes of the ADA’s retaliation provision.”); Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003) (“Requesting an accommodation is a protected activity[.]”); EEOC Enforcement Guidance on Retaliation and Related Issues, 2016 WL 4688886, at *11 (Aug. 25, 2016) (“Protected opposition includes … requesting reasonable accommodation for disability[.]”).

The district court held that Mueck had not engaged in protected conduct based on its conclusion that he sought leave only because of the court mandate. ROA.572. For the reasons discussed above, Mueck’s motivation for attending substance-abuse counseling was irrelevant. See supra pp. 29-30. Regardless of his motivation, the purpose of counseling was to treat his alcoholism. Thus, Mueck’s request for leave was a request for a reasonable accommodation under the ADA. A jury could find that terminating him for requesting a reasonable accommodation constituted retaliation under the statute.

Conclusion

For the foregoing reasons, the EEOC respectfully urges this Court to vacate the award of summary judgment and remand for further proceedings.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ Gail S. Coleman

GAIL S. COLEMAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2920

gail.coleman@eeoc.gov

April 18, 2022

[1] The EEOC takes no position on any other issue in this case.

[2] The EEOC presents these facts in the light most favorable to Mueck, in accordance with the standard of review for an award of summary judgment. See White v. Pauly, 137 S. Ct. 548, 550 (2017).

[3] Mueck’s failure-to-accommodate claim requires proof of an actual disability. 29 C.F.R. § 1630.2(g)(3). A termination claim does not. Id. Had Mueck argued that La Grange discharged him because it regarded him as disabled, he would not have had to establish substantial limitation of a major life activity. He would only have needed to show that La Grange discharged him because of his impairment, actual or perceived. See 42 U.S.C. § 12102(3)(A); 29 C.F.R. § 1630.2(g)(3).

[4] This Court may take judicial notice of government websites. See Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005) (taking judicial notice of information on government website).

[5] The ADA expressly incorporates the standards of the Rehabilitation Act. 42 U.S.C. § 12201(a).