Carl Summers v. Altarum Institute, Corporation

                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-1645


CARL R. SUMMERS,

                Plaintiff - Appellant,

           v.

ALTARUM INSTITUTE, CORPORATION,

                Defendant - Appellee.

-------------------------------

AARP; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION,

                Amici Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12-cv-01493-GBL-IDD)


Argued:   December 10, 2013                Decided:   January 23, 2014


Before MOTZ, AGEE, and DIAZ, Circuit Judges.


Reversed and remanded by published opinion.     Judge Motz wrote
the opinion, in which Judge Agee and Judge Diaz joined.


ARGUED: David Scher, THE EMPLOYMENT LAW GROUP, PC, Washington,
D.C., for Appellant.   Paul William Coughenour, CLARK HILL PLC,
Detroit, Michigan, for Appellee. ON BRIEF: R. Scott Oswald, THE
EMPLOYMENT LAW GROUP, PC, Washington, D.C., for Appellant.
Carly E. Osadetz, CLARK HILL PLC, Detroit, Michigan, for
Appellee.   Rebecca Hamburg Cappy, NATIONAL EMPLOYMENT LAWYERS
ASSOCIATION, San Francisco, California; Daniel B. Kohrman, AARP
FOUNDATION LITIGATION, Washington, D.C.; Melvin Radowitz, AARP,
Washington, D.C., for Amici Supporting Appellant.




                               2
DIANA GRIBBON MOTZ, Circuit Judge:

     Pursuant        to    recent       amendments        to    the    Americans     With

Disabilities Act, a sufficiently severe temporary impairment may

constitute a disability.            Because the district court held to the

contrary, we reverse and remand.



                                              I.

                                              A.

     Carl Summers appeals the dismissal of his complaint for

failure    to   state      a    claim    on       which   relief      can   be   granted.

Accordingly, we recount the facts as alleged by Summers.                            Minor

v. Bostwick Labs, Inc., 669 F.3d 428, 430 n.1 (4th Cir. 2012).

     In July 2011, Summers began work as a senior analyst for

the Altarum Institute, a government contractor with an office in

Alexandria, Virginia.            Summers’s job required him to travel to

the Maryland offices of Altarum’s client, the Defense Centers of

Excellence for Psychological Health and Traumatic Brain Injury

(“DCoE”).       At    DCoE,     Summers       conducted        statistical       research,

wrote     reports,        and    made     presentations.               Altarum     policy

authorized employees to work remotely if the client approved.

The client, here DCoE, preferred contractors to work on-site

during business hours, but permitted them to work remotely from

home when “putting in extra time on [a] project.”



                                              3
       On October 17, 2011, Summers fell and injured himself while

exiting a commuter train on his way to DCoE.                        With a heavy bag

slung over his shoulder, he lost his footing and struck both

knees against the train platform.                    Paramedics took Summers to

the hospital, where doctors determined that he had sustained

serious injuries to both legs.                  Summers fractured his left leg

and    tore    the    meniscus    tendon       in    his   left     knee.      He     also

fractured his right ankle and ruptured the quadriceps-patellar

tendon   in     his    right    leg.      Repairing        the     left-leg    fracture

required surgery to fit a metal plate, screws, and bone into his

tibia.        Treating Summers’s ruptured right quadriceps required

another surgery to drill a hole in the patella and refasten his

tendons to the knee.

       Doctors forbade Summers from putting any weight on his left

leg for six weeks and estimated that he would not be able to

walk    normally      for     seven    months       at   the     earliest.         Without

surgery,       bed    rest,    pain    medication,         and    physical     therapy,

Summers alleges that he would “likely” not have been able to

walk for more than a year after the accident.

       While    hospitalized,         Summers    contacted        an   Altarum     human-

resources representative about obtaining short-term disability

benefits and working from home as he recovered.                             The Altarum

representative        agreed     to    discuss      “accommodations         that    would

allow Summers to return to work,” but suggested that Summers

                                           4
“take short-term disability and focus on getting well again.”

Summers   sent    emails    to    his    supervisors       at    Altarum    and    DCoE

seeking advice about how to return to work; he suggested “a plan

in which he would take short-term disability for a few weeks,

then start working remotely part-time, and then increase his

hours gradually until he was full-time again.”

      Altarum’s    insurance          provider    granted       Summers    short-term

disability benefits.        But Altarum never followed up on Summers’s

request to discuss how he might successfully return to work.

The   company     did      not     suggest       any   alternative         reasonable

accommodation or engage in any interactive process with Summers.

Nor did Altarum tell Summers that there was “any problem with

his plan for a graduated return to work.”                   Instead, on November

30,   Altarum     simply         informed      Summers      “that     Altarum       was

terminating [him] effective December 1, 2011, in order to place

another analyst in his role at DCoE.”

                                          B.

      In September 2012, Summers filed a complaint in the Eastern

District of Virginia alleging two claims under the Americans

With Disability Act (“ADA” or “Act”).                  First, Summers asserted

that Altarum discriminated against him by wrongfully discharging

him on account of his disability.                Second, Summers asserted that

Altarum failed to accommodate his disability.                        After Summers

amended   the    complaint       in    October     2012,    the     district      court

                                           5
granted Altarum’s Rule 12(b)(6) motion and dismissed both claims

without prejudice.

     Rather    than    filing       a    second      amended     complaint,   Summers

filed a new lawsuit in December 2012 presenting essentially the

same two claims.        A few months later, the district court again

granted Altarum’s motion to dismiss both claims, this time with

prejudice.      First, the court dismissed the wrongful-discharge

claim on the ground that Summers had failed to allege that he

was disabled.       The court reasoned that a “temporary condition,

even up to a year, does not fall within the purview of the

[A]ct” and so “the defendant’s not disabled.”                      The court further

suggested that Summers was not disabled because he could have

worked with the assistance of a wheelchair.                        Second, the court

dismissed Summers’s failure-to-accommodate claim on the ground

that Summers failed to allege that he had requested a reasonable

accommodation.        The court reasoned that an employee bears the

burden    of   requesting       a       reasonable       accommodation,    and    that

Summers’s      proposal     to          work       temporarily     from    home   was

unreasonable     “because    it         sought      to   eliminate    a   significant

function of the job.”

     On   appeal,     Summers       challenges        only   the   district   court’s

dismissal of his wrongful-discharge claim.                     He does not contest

the court’s dismissal of his failure-to-accommodate claim, and

so we do not consider it.

                                               6
                                             II.

       To survive a motion to dismiss, a complaint must state “a

claim to relief that is plausible on its face.”                            Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007).                            We review de novo an

appeal from a Rule 12(b)(6) dismissal, accepting the complaint

as true and drawing reasonable inferences in the plaintiff’s

favor.       Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591

F.3d 250, 253 (4th Cir. 2009).

                                             A.

       The     ADA        makes    it    unlawful       for      covered    employers    to

“discriminate against a qualified individual on the basis of

disability.”          42 U.S.C. § 12112(a)               (2012).      The Act prohibits

covered employers from discharging qualified employees because

they   are     disabled.           Id.      To       establish    a   wrongful-discharge

claim,   a     plaintiff          must   show,        among   other    things,    that   he

suffered from a “disability.”                Young v. United Parcel Serv., 707

F.3d 437, 443 (4th Cir. 2013).

       Under the ADA, a “disability” may take any of the following

forms:       (1) “a physical or mental impairment that substantially

limits       one     or     more    major    life        activities”       (the   “actual-

disability” prong); (2) “a record of such an impairment” (the

“record-of” prong); or (3) “being regarded as having such an

impairment” (the “regarded-as” prong).                           42 U.S.C. § 12102(1).

Summers alleges that he was disabled under the ADA’s actual-

                                                 7
disability prong.        Specifically, he asserts that his impairment

“substantially limit[ed]” his ability to walk -- which the ADA

recognizes      as    one     of     the     “major      life        activities”        whose

substantial      limitation         qualifies       as        a     disability.            Id.

§ 12102(2)(A).              Accordingly,            if        Summers’s          impairment

substantially        limited       his    ability     to      walk,        he   suffered     a

“disability” for purposes of the ADA.

                                            B.

     In   September      2008,      Congress     broadened           the    definition      of

“disability” by enacting the ADA Amendments Act of 2008, Pub. L.

No. 110-325, 122 Stat. 3553 (“ADAAA” or “amended Act”).                                     In

response to a series of Supreme Court decisions that Congress

believed improperly restricted the scope of the ADA, it passed

legislation     with    the    stated       purpose      of       “reinstating      a   broad

scope   of   protection        to    be    available       under      the       ADA.”      Id.

§ 2(b)(1).      Particularly relevant to this case, Congress sought

to   override    Toyota        Motor       Manufacturing,           Kentucky,      Inc.     v.

Williams, 534 U.S. 184, 199 (2002), in which the Supreme Court

had adopted a strict construction of the term “disability” and

suggested that a temporary impairment could not qualify as a

disability under the Act.                Congress believed that Toyota set an

“inappropriately high level of limitation necessary to obtain

coverage under the ADA.”            Pub. L. No. 110-325, § 2(b)(5).



                                             8
      Abrogating        Toyota,    the       amended      Act    provides         that    the

definition of disability “shall be construed in favor of broad

coverage    of       individuals    under        this    chapter,      to   the     maximum

extent    permitted      by    [its]    terms.”          42    U.S.C.   § 12102(4)(A).

Further,      Congress        instructed         that    the    term    “substantially

limits”    be        interpreted       consistently           with    the    liberalized

purposes    of    the    ADAAA.        Id.    §    12102(4)(B). 1           And    Congress

directed the Equal Employment Opportunity Commission (“EEOC”) to

revise its regulations defining the term “substantially limits”

to   render     them    consistent       with      the    broadened     scope       of    the

statute.      Pub. L. No. 110-325, § 2(b)(6).

      After notice and comment, the EEOC promulgated regulations

clarifying       that   “[t]he     term      ‘substantially          limits’      shall   be

construed broadly in favor of expansive coverage” and that the

term is “not meant to be a demanding standard.”                                   29 C.F.R.

§ 1630.2(j)(1)(i) (2013).              The EEOC regulations also expressly

provide that “effects of an impairment lasting or expected to

last fewer than six months can be substantially limiting” for

purposes        of      proving        an        actual        disability.                Id.

§ 1630.2(j)(1)(ix) (emphasis added).

      1
       The ADAAA provides, with respect to the “regarded-as”
prong, that a plaintiff will not be disabled if his impairment
is “transitory and minor,” i.e. of “an actual or expected
duration of 6 months or less.” Id. § 12102(3)(B). It contains
no similar durational requirement for the “actual-disability”
prong.


                                             9
       According      to    the    appendix       to   the    EEOC    regulations,     the

“duration of an impairment is one factor that is relevant in

determining whether the impairment substantially limits a major

life    activity.”            Id.    § 1630.2(j)(1)(ix)(app.).                   Although

“[i]mpairments that last only for a short period of time are

typically not covered,” they may be covered “if sufficiently

severe.”       Id.     The EEOC appendix illustrates these principles:

“[I]f an individual has a back impairment that results in a 20-

pound lifting restriction that lasts for several months, he is

substantially limited in the major life activity of lifting, and

therefore covered under the first prong of the definition of

disability.”         Id.



                                            III.

       In    dismissing       Summers’s       wrongful-discharge              claim,   the

district court held that, even though Summers had “suffered a

very    serious       injury,”       this     injury         did    not   constitute    a

disability because it was temporary and expected to heal within

a   year.       That       holding    represented        an        entirely    reasonable

interpretation of Toyota and its progeny.                      But in 2008, Congress

expressly abrogated Toyota by amending the ADA.                               We are the

first       appellate      court     to     apply      the     amendment’s       expanded




                                             10
definition      of   “disability.” 2         Fortunately,      the   absence     of

appellate    precedent      presents     no    difficulty      in    this   case:

Summers   has     unquestionably    alleged     a   “disability”        under   the

ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion.

                                        A.

      Summers alleges that his accident left him unable to walk

for seven months and that without surgery, pain medication, and

physical therapy, he “likely” would have been unable to walk for

far   longer. 3      The   text   and   purpose     of   the    ADAAA    and    its



      2
       In Reynolds v. American National Red Cross, 701 F.3d 143,
151-52 (4th Cir. 2012), we briefly discussed the ADAAA before
declining to apply the statute retroactively. In the course of
our discussion we noted that the plaintiff’s impairment -- a
minor lifting restriction -- was not severe enough to constitute
a disability even under the ADAAA’s liberal new standard.     Id.
at 154 n.10. But we did not suggest, let alone hold, that the
ADAAA excluded temporary impairments from its definition of
disability.
     3
       In enacting the ADAAA, Congress clarified that courts must
disregard so-called “mitigating measures” when determining
whether an impairment constitutes a disability.      Pub. L. No.
110-325, § 2(b)(2).    The new statute and regulations require
courts to evaluate a plaintiff’s impairment as it would manifest
without treatments such as medication, mobility devices, and
physical therapy.      42 U.S.C. § 12102(4)(E)(i); 29 C.F.R.
§ 1630.2(j)(5). A proposed but rejected regulation had included
as an example of a mitigating measure “surgical interventions,
except for those that permanently eliminate an impairment.” 76
Fed. Reg. 16,978, 16,983 (Mar. 25, 2011). The EEOC omitted this
example due to the public’s confusion over how it would apply,
instead explaining that whether a given surgery constitutes a
mitigating measure should be determined “on a case-by-case
basis.”   Id.   Because Summers’s impairment could constitute a
disability with or without surgery, we need not address whether
his surgeries constituted mitigating measures.


                                        11
implementing regulations make clear that such an impairment can

constitute a disability.

       In    the     amended       Act,     after       concluding        that    courts      had

construed the term “disability” too narrowly, Congress stated

that    it   intended        to    liberalize          the   ADA    “in    favor       of   broad

coverage.”         42 U.S.C. § 12102(4)(A).                   Congress also mandated

that the ADA, as amended, be interpreted as broadly as its text

permits.       Id.    Furthermore, the EEOC, pursuant to its delegated

authority to construe “disability” more generously, adopted new

regulations providing that an impairment lasting less than six

months       can       constitute            a         disability.                29        C.F.R.

§ 1630.2(j)(1)(ix).               Although short-term impairments qualify as

disabilities         only     if     they        are     “sufficiently       severe,”         id.

§ 1630.2(j)(1)(ix)           (app.),        it    seems      clear    that       the    serious

impairment alleged by Summers is severe enough to qualify.                                    If,

as the EEOC has concluded, a person who cannot lift more than

twenty pounds for “several months” is sufficiently impaired to

be disabled within the meaning of the amended Act, id., then

surely a person whose broken legs and injured tendons render him

completely immobile for more than seven months is also disabled.

       In    holding        that    Summers’s           temporary     injury       could       not

constitute a disability as a matter of law, the district court

erred    not    only    in        relying    on        pre-ADAAA     cases       but   also    in

misapplying the ADA disability analysis.                             The court reasoned

                                                 12
that, because Summers could have worked with a wheelchair, he

must       not   have    been     disabled.             This   inverts     the   appropriate

inquiry.          A court must first establish whether a plaintiff is

disabled by determining whether he suffers from a substantially

limiting impairment.                Only then may a court ask whether the

plaintiff          is     capable        of        working        with    or     without     an

accommodation.              See     42        U.S.C.      § 12102(4)(E)(i)(III)             (the

determination           whether    an    impairment          is   substantially       limiting

“shall be made without regard to the ameliorative effects of

. . . reasonable accommodations”).                         If the fact that a person

could      work    with    the    help        of   a    wheelchair       meant   he   was    not

disabled under the Act, the ADA would be eviscerated. 4


       4
       To mount a wrongful-discharge claim, a plaintiff must also
establish that he is a “qualified individual” -- i.e., that
“with or without reasonable accommodation, [he] can perform the
essential functions of [his] employment position.”      42 U.S.C.
§ 12111(8).   The district court did not address the “qualified
individual” issue in the context of Summers’s wrongful-discharge
claim.     But in dismissing Summers’s failure-to-accommodate
claim, the court suggested that Summers was not a “qualified
individual” because his requested accommodation -- a temporary
period of working remotely -- was unreasonable.      Summers does
not challenge the dismissal of his failure-to-accommodate claim
and so, as explained above, we do not revisit that holding. But
because the “qualified individual” issue likely will arise on
remand of the wrongful-discharge claim, we note that an
employee’s accommodation request, even an unreasonable one,
typically   triggers  an   employer’s  duty   to  engage   in  an
“interactive process” to arrive at a suitable accommodation
collaboratively with the employee. See Wilson v. Dollar General
Corp., 717 F.3d 337, 346-47 (4th Cir. 2013).     “[L]iability for
failure to engage in an interactive process depends upon a
finding that, had a good faith interactive process occurred, the
(Continued)
                                                   13
                                           B.

       Despite the sweeping language of the amended Act and the

clear regulations adopted by the EEOC, Altarum maintains that a

temporary impairment cannot constitute a disability.                             In doing

so, Altarum principally relies on pre-ADAAA cases that, as we

have    explained,     the       amended    Act       abrogated.          Additionally,

Altarum briefly advances two other arguments why Summers’s leg

injuries did not “substantially limit” his ability to walk.

                                           1.

       First, Altarum contends that the EEOC regulations defining

a disability to include short-term impairments do not warrant

deference     under    Chevron,         U.S.A.,      Inc.    v.    Natural      Resources

Defense Council, Inc., 467 U.S. 837 (1984).                       Altarum argues that

Congress’s    intent      “not     to   extend    ADA       coverage     to    those   with

temporary     impairments        expected       to    fully       heal    is    evident,”

because such a “dramatic expansion of the ADA would have been

accompanied       by   some        pertinent      statement        of     Congressional

intent.”    Altarum Br. 34-35.

       When a litigant challenges an agency’s interpretation of a

statute,     we   apply      the     familiar        two-step      Chevron      analysis.




parties could have found a reasonable accommodation that would
enable the disabled person to perform the job’s essential
functions.”   Id. at 347 (quoting Jones v. Nationwide Life Ins.
Co., 696 F.3d 78, 91 (1st Cir. 2012))(quotation marks omitted).


                                           14
First, we evaluate whether Congress has “directly spoken” to the

precise question at issue.                   If traditional rules of statutory

construction render the intent of Congress clear, “that is the

end of the matter.”             Chevron, 467 U.S. at 842.                If the statute

is “silent or ambiguous” with respect to the question at issue,

we   proceed       to    the    second       step     --    determining     whether       the

agency’s interpretation of the statute is reasonable.                               Id. at

843.     An agency’s reasonable interpretation will control, even

if better interpretations are possible.                     Id. at 843 n.11.

       Although         Altarum      contends        that      Congress’s       intent     to

withhold     ADA    coverage         from    temporarily       impaired     employees      is

“evident,” Altarum Br. 34, no such intent seems evident to us.

To be sure, the amended Act does preserve, without alteration,

the requirement that an impairment be “substantial” to qualify

as a disability.             But Congress enacted the ADAAA to correct what

it     perceived        as     the     Supreme        Court’s     overly     restrictive

definition of this very term.                   And Congress expressly directed

courts to construe the amended statute as broadly as possible.

Moreover, while the ADAAA imposes a six-month requirement with

respect      to    “regarded-as”            disabilities,       it   imposes      no     such

durational         requirement          for         “actual”     disabilities,           thus

suggesting that no such requirement was intended.                          See Hamdan v.

Rumsfeld, 548 U.S. 557, 578 (2006) (“[A] negative inference may

be   drawn    from      the    exclusion       of     language    from    one    statutory

                                               15
provision    that    is   included     in    other    provisions      of     the   same

statute.”).         For   these   reasons,       we    must       reject   Altarum’s

contention    that    the    amended    Act     clearly       evinces      Congress’s

intent to withhold ADA coverage for temporary impairments.                           At

best, the statute is ambiguous with respect to whether temporary

impairments may now qualify as disabilities.

     Accordingly, we turn to step two of the Chevron analysis --

determining whether the EEOC’s interpretation is reasonable.                        We

conclude that it is.         The EEOC’s decision to define disability

to include severe temporary impairments entirely accords with

the purpose of the amended Act.              The stated goal of the ADAAA is

to expand the scope of protection available under the Act as

broadly as the text permits.            The EEOC’s interpretation -- that

the ADAAA may encompass temporary disabilities -- advances this

goal.     Moreover,       extending    coverage       to    temporarily      impaired

employees    produces      consequences      less     “dramatic”      than    Altarum

seems to envision.          Prohibiting employers from discriminating

against   temporarily       disabled    employees          will   burden   employers

only as long as the disability endures.                    Temporary disabilities

require only temporary accommodations.

                                        2.

     Alternatively, Altarum argues that, even deferring to the

EEOC regulations, Summers’s impairment does not qualify as a

disability.    Altarum maintains that the EEOC regulations do not

                                        16
apply to Summers’s impairment because those regulations do not

cover “temporary impairments due to injuries” even if they do

cover “impairments due to permanent or long-term conditions that

have only a short term impact.”                Altarum Br. 37.

        But, in fact, the EEOC regulations provide no basis for

distinguishing between temporary impairments caused by injuries,

on   one    hand,     and    temporary     impairments    caused    by    permanent

conditions, on the other.                The regulations state only that the

“effects of an impairment lasting or expected to last fewer than

six months can be substantially limiting” -- they say nothing

about       the      cause         of    the     impairment.         29      C.F.R.

§ 1630.2(j)(1)(ix).

        Nor do the regulations suggest that an “injury” cannot be

an “impairment.”        Rather, the EEOC defines an impairment broadly

to include “[a]ny physiological disorder or condition, cosmetic

disfigurement, or anatomical loss affecting one or more body

systems,”         including        the   “musculoskeletal”       system.         Id.

§ 1630.2(h)(1).             This    expansive     definition     surely    includes

broken bones and torn tendons.                 And the EEOC elsewhere uses the

terms      “injury”    and     “impairment”       interchangeably.         See   id.

§ 1630.2(j)(5) n.3 (app.); id. § 1630.15(f) (app.).

        In sum, nothing about the ADAAA or its regulations suggests

a distinction between impairments caused by temporary injuries

and impairments caused by permanent conditions.                   Because Summers

                                           17
alleges a severe injury that prevented him from walking for at

least seven months, he has stated a claim that this impairment

“substantially limited” his ability to walk.



                                      IV.

     Under    the    ADAAA    and    its     implementing      regulations,    an

impairment is not categorically excluded from being a disability

simply    because   it   is   temporary.       The    impairment    alleged   by

Summers    falls    comfortably     within    the    amended    Act’s   expanded

definition of disability.           We therefore reverse the district

court’s    dismissal     of   Summers’s      wrongful-discharge      claim    and

remand the case for further proceedings consistent with this

opinion.

                                                       REVERSED AND REMANDED




                                      18