No. 06-50840
           __________________________________________
             IN THE UNITED STATES COURT OF APPEALS 
                     FOR THE FIFTH CIRCUIT
           __________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
               Plaintiff-Appellant,
v.

MOTHERS WORK, INC.,
               Defendant-Appellee.
           __________________________________________
                      CONSOLIDATED WITH  
                          No. 06-51149
                                
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
               Plaintiff-Appellee,
v.

MOTHERS WORK, INC.,
               Defendant-Appellant.
        ________________________________________________
                                
        On Appeal from the United States District Court
    For the Western District of Texas, San Antonio Division
        ________________________________________________
                                
           BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
                    COMMISSION AS APPELLANT
        ________________________________________________
                                
RONALD S. COOPER                   GAIL S. COLEMAN
General Counsel                    Attorney
                                   U.S. EQUAL EMPLOYMENT
VINCENT J. BLACKWOOD               OPPORTUNITY COMMISSION
Acting Associate General Counsel   Office of General Counsel
                                   1801 L Street, NW, Room 7034
CAROLYN L. WHEELER                 Washington, DC 20507
Assistant General Counsel          (202) 663-4055

               STATEMENT REGARDING ORAL ARGUMENT
                                
     The Equal Employment Opportunity Commission requests oral argument. 
In this appeal, the EEOC asks the Court to hold that interacting with others,
thinking, and caring for oneself are major life activities under the Americans with
Disabilities Act.  Oral argument would help to address any questions the Court
may have about such rulings.  Additionally, oral argument would allow the Court
to satisfy any concerns it may have regarding the record evidence.

                       TABLE OF CONTENTS
                                
Statement Regarding Oral Argument. . . . . . . . . . . . . . . .i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . iv

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1

Statement of the Issues. . . . . . . . . . . . . . . . . . . . .2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2

  A.  Course of Proceedings. . . . . . . . . . . . . . . . . . .3
  
  B.  Statement of Facts . . . . . . . . . . . . . . . . . . . .3

        1 Medical Leave and Termination. . . . . . . . . . . . .5
  
        2.Symptoms of Sarfaty's Bipolar Disorder . . . . . . . 17

        3.History of the Case . . . . . . . . . . . . . . . .  23

  C.  District Court Decision. . . . . . . . . . . . . . . . . 24

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . 26

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

     The district court erred in granting summary judgment to Mothers 
     Work because a reasonable jury could find that Sarfaty was disabled 
     with bipolar disorder and that her disability was a motivating factor 
     in her termination. . . . . . . . . . . . . . . . . . . . 28

  A. Standard of Review. . . . . . . . . . . . . . . . . . . . 28

  B. A jury could conclude that Sarfaty is disabled within the meaning of the
     Americans with Disabilities Act ("ADA"). . . . . . . . . . . . 28

       1. A jury could find that Sarfaty is disabled because she is substantially
          limited in the major life activity of interacting with others. 32

       2.  A jury could find that Sarfaty is disabled because she is 
          substantially limited in the major life activity of thinking.37

       3.   A jury could conclude that Sarfaty is disabled because she has been
          substantially limited in the major life activity of caring for herself,
          and because the episodic nature of her illness makes it likely that this
          substantial limitation will recur. . . . . . . . . . . . . . . 41

  C. A jury could reasonably find that Sarfaty's disability was a motivating
     factor in Mothers Work's decision to terminate her.. . . . . . 43

       1. A jury could reasonably find that Mothers Work terminated Sarfaty
          because of Gottlieb's reactions to symptoms that cannot be separated
          from Sarfaty's disability. . . . . . . . . . . . . . . . . . . 44

       2. Mothers Work cannot escape liability for its decision to terminate
          Sarfaty by claiming ignorance of her condition . . . . . . . . 49

       3. A jury could reasonably find that Mothers Work's stated reason for
          terminating Sarfaty  job abandonment  is pretextual. . . . . 53

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Certificate of Service

Certificate of Compliance

                      TABLE OF AUTHORITIES
                                
                                                           Page
                                
                             Cases


Battle v. UPS, Inc., 438 F.3d 856 (8th Cir. 2006). . . . . . . 37

Buchanan v. City of San Antonio, 85 F.3d 196 (5th Cir. 1996) . 43

Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000). . . . . . . . . 30

Cutrera v. Bd. of Sup'rs of La. State Univ., 429 F.3d 108
(5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 52

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995)29, 51

EEOC v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997). . . . 45

EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001) . . . . . 37

EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005) 31, 52

Emerson v. N. States Power Co., 256 F.3d 506 
(7th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . 32

Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378 (3d Cir. 2004) . 41

Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003) . . . . . . . 41

Head v. Glacier N.W., Inc., 413 F.3d 1053 (9th Cir. 2005). 32, 37

Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003). . . . 32

Jacques v. DiMarzio, Inc., 386 F.3d 192 (2d Cir. 2004)32, 33, 36, 41

Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052
(5th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . 52

                                                           Page
                                                               
Lanman v. Johnson County, Kan., 393 F.3d 1151 
(10th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 32, 37

Mason v. United Air Lines, Inc., 274 F.3d 314 (5th Cir. 2001). 41

Mauder v. Metro. Transit Auth., 446 F.3d 574 (5th Cir. 2006) . 56

McAlindin v. County of San Diego, 192 F.3d 1226 
(9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . 33, 36

Minter v. Great Am. Ins. Co., 423 F.3d 460 (5th Cir. 2005) . . 28

Nawrot v. CPC Int'l, 277 F.3d 896 (7th Cir. 2002). . . . . . . 37

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) 53

Rohan v. Networks Presentations LLC, 375 F.3d 266 
(4th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . 32

Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797
(8th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . 30

Shannon v. Henderson, 275 F.3d 42, 2001 WL 1223633
(5th Cir. 2001) (per curiam) (unpublished) . . . . . . . . 31, 32

Soileau v. Guilford of Me., Inc., 105 F.3d 12 (1st Cir. 1997)32-33

Swanson v. Univ. of Cincinnati, 268 F.3d 307 (6th Cir. 2001) . 30

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) 37

Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C.,
258 F.3d 30 (1st Cir. 2001). . . . . . . . . . . . . . . . . . 37

Williams v. Toyota Motor Mfg., Ky., Inc., 
534 U.S. 184 (2002). . . . . . . . . . . . . . 29, 30, 33, 40, 51

                                                           Page
                                                               
                            Statutes
                                
28 U.S.C.  1291 . . . . . . . . . . . . . . . . . . . . . . . .2

28 U.S.C.  1331 . . . . . . . . . . . . . . . . . . . . . . . .1

Americans with Disabilities Act, 42 U.S.C.  12101 et seq. . . .1

      12102(2). . . . . . . . . . . . . . . . . . . . . . .28-29

      12117(a). . . . . . . . . . . . . . . . . . . . . . . . .1


                     Rules and Regulations
                                
Fed. R. Civ. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . .2

29 C.F.R.  1630.2(i). . . . . . . . . . . . . . . . . . . . . 30

29 C.F.R.  1630.2(j)(1) . . . . . . . . . . . . . . . . . 30, 33

29 C.F.R.  1630.2(j)(2)(ii)-(iii) . . . . . . . . . . . . . . 30


                      Legislative History
                                
Americans with Disabilities Act of 1990,
H.R. Rep. No. 101-485(III) . . . . . . . . . . . . . . . . .48-49


                   Miscellaneous Authorities
                                
EEOC Enforcement Guidance on the ADA
and Psychiatric Disabilities (Mar. 25, 1997) . . . 29, 31, 32, 36

Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness,
Hedonic Costs, and the ADA, 94 Geo. L.J. 399 (Jan. 2006) . . . 48

                                                           Page

G. De Lisio, I. Maremmani, G. Perugi, G.B. Cassano,
J. Delitito, H.S. Akiskal, Impairment of Work and Leisure
in Depressed Outpatients:  A Preliminary Communication,
J. Affec. Disord. 79 (Mar.-Apr. 1986), available at
http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=
Retrieve&db=PubMed&list_uids=2873159&dopt=Citation . . . . . . 35

Lana R. Castle, Bipolar Disorder Demystified:  Mastering the
Tightrope of Manic Depression (Marlowe & Co. 2003) . . . . .46-47

Peter Byrne, Stigma of Mental Illness and Ways of 
Diminishing It, 6 Advances in Psychiatric Treatment 65 (2000)
available at http://apt.rcpsych.org/cgi/content./full/6/5/65 . 46

U.S. Dep't of Health & Human Servs., Mental Health: 
A Report of the Surgeon General  Executive Summary (1999) . . 46



                          No. 06-50840
           __________________________________________
             IN THE UNITED STATES COURT OF APPEALS 
                     FOR THE FIFTH CIRCUIT
           __________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
               Plaintiff-Appellant,
v.

MOTHERS WORK, INC.,
               Defendant-Appellee.
           __________________________________________
                      CONSOLIDATED WITH  
                          No. 06-51149
                                
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
               Plaintiff-Appellee,
v.

MOTHERS WORK, INC.,
               Defendant-Appellant.
        ________________________________________________
                                
           BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
                    COMMISSION AS APPELLANT
        ________________________________________________
                                
                   STATEMENT OF JURISDICTION
                                
     The EEOC sued Mothers Work under the Americans with Disabilities Act
("ADA"), 42 U.S.C.  12101 et seq., alleging that Mothers Work illegally
terminated Monica Sarfaty from her position as a regional manager because of her
disability, bipolar disorder.  (Complaint, R.1, Vol. 1 at 1.)  The district court had
jurisdiction under 28 U.S.C.  1331 and 42 U.S.C.  12117(a).  The district court
granted summary judgment to Mothers Work on May 8, 2006.  (Order, R.65, R.E.
at 4, Vol. 9 at 1669.)  On May 9, 2006, the clerk entered final judgment for
Mothers Work which disposed of all parties' claims.  (Clerk's Judgment, R.66,
R.E. at 3, Vol. 9 at 1683.)  The EEOC filed a timely notice of appeal on July 6,
2006, pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure. 
(Notice of Appeal, R.78, R.E. at 2, Vol. 10 at 2997.)  This Court has jurisdiction
under 28 U.S.C.  1291.

                    STATEMENT OF THE ISSUES
                                
     1.  Could a reasonable jury find that Monica Sarfaty is disabled within the
meaning of the ADA?
     2.   Could a reasonable jury find that Sarfaty's disability was a motivating
factor in her supervisor's decision to terminate her?
     3.   Could a reasonable jury find that Mothers Work's stated reason for
terminating Sarfaty  job abandonment  is pretextual?
                     STATEMENT OF THE CASE
     This is an appeal from a final judgment of the district court in favor of
Mothers Work.

     A.   Course of Proceedings
     The EEOC filed this ADA action against Mothers Work on September 28,
2004.  (Complaint, R.1, Vol. 1 at 1.)  On May 8, 2006, the district court granted
summary judgment to Mothers Work.  (Order, R.65, R.E. at 4, Vol. 9 at 1669.)  
     B.   Statement of Facts
     Monica Sarfaty was a regional sales manager for Mothers Work, a retail
company specializing in maternity clothes.  (Sarfaty Dep. at 20, R.46 at Ex. B,
Vol. 3 at 523; Gottlieb Decl.  2-3, R.46 at Ex. A, Vol. 3 at 513.)  She was a hard
worker and a valued employee for over six years.  (Sarfaty Dep. at 23-29, 48, R.46
at Ex. B, Vol. 3 at 523-25, 528; Williams Dep. of 2/9/06 at 29, R.59 at Ex. A, Vol.
5 at 881.)  Sarfaty explained, "I take my job very seriously, and to a certain extent
I really lived for my job and I wanted to make sure that everything turned out
perfect and everything was right and the business was running."  (Sarfaty Dep. at
22, R.46 at Ex. B, Vol. 3 at 523.)
     As a regional sales manager, Sarfaty supervised eight district managers and
was responsible for the operations of 113 stores.  (Id. at 20, Vol. 3 at 523.)  She
coached and developed the associates who worked for her.  (Id.)  She also took on
increasingly demanding responsibilities outside the scope of her job description. 
(Id. at 26-27, 31, Vol. 3 at 525-26.)  She testified, "I was taking more on and I was
volunteering more because that's just the kind of person I am."  (Id. at 32, Vol. 3
at 526.)  Sarfaty trained other regional managers and supported those who were
new to the business.  (Id. at 20-21, Vol. 3 at 523.)  Additionally, she worked with
the Vice President of Real Estate to put together real estate meetings.  (Id.) 
Although other regional managers were not especially involved in looking for
good locations to open new stores, Sarfaty felt that this was part of her job and she
stayed in close contact with the Vice President about this subject.  (Id. at 28, Vol.
3 at 525.)
     Sarfaty's supervisors thought highly enough of her that in May 2003, she
was asked to take over as Acting Director of Stores for the Motherhood division
while her supervisor was out on vacation.  (Id. at 24, Vol. 3 at 524.)  Two months
later, the Vice President of Operations asked her to interview for a promotion as
Director of Stores for the Pea in the Pod division.  (Id.)  Sarfaty was "honored"
that the Vice President had thought of her for this position and she went to
Philadelphia for the interview.  (Id. at 49-50, Vol. 3 at 529.)  Ultimately, the
position went to an external candidate with more experience.  (Id. at 50, Vol. 3 at
529.)
     Sarfaty's job required an enormous amount of travel, generally from
Tuesday through Friday every week.  (Id. at 23-24, 55, Vol. 3 at 523-24, 531.) 
Sarfaty worked 50-55 hours per week on her regular duties, and she worked
additional time during evenings and weekends to train other regional managers
and to assist the Vice President of Real Estate.  (Id. at 29, Vol. 3 at 525.)
     

     1.  Medical Leave and Termination
     In July 2003, at around the same time that she was interviewing for the
position as Director of Stores for the Pea in the Pod division, Sarfaty first told her
supervisor, Monica Gottlieb, that she was experiencing a great deal of stress.  (Id.
at 51, Vol. 3 at 530.)  Gottlieb, in turn, told Sarfaty that she did not think Sarfaty
was as good as Sarfaty thought she was.  (Sarfaty Dep. at 44, R.59 at Ex. K, Vol. 5
at 1007.)  
     The next month, Gottlieb began investigating Sarfaty for possible expense
account fraud.  (Gottlieb Decl.  4, R.46 at Ex. A, Vol. 3 at 513.)  Although the
loss prevention manager did not consider Sarfaty's actions to have violated
expense account policy (Williams Dep. of 10/26/05 at 157, R.59 at Ex. X, Vol. 5
at 1123), and the Vice President of Stores eventually told Gottlieb that she could
not discipline Sarfaty for the challenged expenses (Saylors Dep. at 46, R. 59 at Ex.
BB, Vol. 5 at 1151), the investigation itself was stressful for Sarfaty.  (Sarfaty
Dep. at 61-66, R.46 at Ex. B, Vol. 3 at 533-34; Williams Dep. of 10/26/05 at 70,
153, R.46 at Ex. C, Vol. 3 at 564-65.)  
     Gottlieb added to Sarfaty's stress when she rebuked Sarfaty for declining to
take on yet more tasks.  (Sarfaty Dep. at 46, R.63 at Ex. B, Vol. 7 at 1318.)  At this
point, Sarfaty had been on the road for 14 weeks straight.  (Sarfaty Dep. at 55,
R.46 at Ex. B, Vol. 3 at 531.)  She explained to Gottlieb that she did not feel she
could continue to coach all of the other regional managers all of the time because
she had her own region to run.  (Sarfaty Dep. at 46, R.63 at Ex. B, Vol. 7 at 1318.) 
Sarfaty again told Gottlieb that she was "very stressed out" and that she was
"feeling worse."  (Sarfaty Dep. at 55, R.46 at Ex. B, Vol. 3 at 531.)  Gottlieb,
however, made Sarfaty feel that she was not a "team player."  (Sarfaty Dep. at 46,
R.63 at Ex. B, Vol. 7 at 1318.)
     By September 2003, Sarfaty felt that her stress was out of control and she
began to contemplate suicide.  (Sarfaty Dep. at 57, 62, Vol. 3 at 532-33; Sarfaty
Aff.  5, R.59 at Ex. B, R.E. at 5, Vol. 5 at 894.)  Her thoughts were racing, she
suffered anxiety, she had frequent migraines, and she had trouble sleeping. 
(Sarfaty Dep. at 6, Vol. 3 at 521; Sarfaty Aff.  5, R.59 at Ex. B, R.E. at 5, Vol. 5
at 894.)  Her concentration was so impaired that she could not remember simple
words and often had to stop speaking in the middle of a sentence.  (Sarfaty Dep. at
10, R.63 at Ex. B, Vol. 7 at 1313.)  She "catastrophized" and gave undue
significance to small matters.  (Sarfaty Dep. at 57, R.46 at Ex. B, Vol. 3 at 532;
Sarfaty Aff.  5, R.59 at Ex. B, R.E. at 5, Vol. 5 at 894.)  With no warning, she
would find herself overcome with irritability.  (Sarfaty Dep. at 159, R.59 at Ex. K,
Vol. 5 at 1026.)  She also had repeated panic attacks in which she became short of
breath, her heart raced, her mouth became dry, and she believed that she was going
to die.  (Id. at 92, Vol. 5 at 1014; Sarfaty Dep. at 93-97, R.46 at Ex. B, Vol. 3 at
535-36.)  
     On Friday, September 26, 2003, Sarfaty told the loss prevention manager
that she was about to have a "nervous breakdown."  "I just can't do this," she said. 
"Something's going to happen.  I'm going to explode."  (Sarfaty Dep. at 61-62,
R.46 at Ex. B, Vol. 3 at 533.)
     Sarfaty suffered another panic attack on the morning of Monday, September
29, 2003.  (Id. at 95, Vol. 3 at 535.)  She called in sick to work and went to see her
primary care physician, who immediately referred her to a psychologist for an
evaluation.  (Id. at 6, Vol. 3 at 521; Messinger Notes, R.59 at Ex. C, Vol. 5 at
907.)
     The psychologist tentatively diagnosed Sarfaty with "recurrent major
depressive disorder" and generalized anxiety and sent her to Mission Vista
Hospital.  (Barnes Notes at Bates 3005, R.59 at Ex. D, Vol. 5 at 912.)  The
hospital admitted her on October 2, 2003, with a provisional diagnosis of "severe,
recurrent major depressive disorder."  (Mission Vista Hospital discharge summary
at Bates 3450, R.59 at Ex. G, Vol. 5 at 970.)  Sarfaty remained in the partial
hospitalization program until October 21, 2003.  (Id.)  By then, her doctor had
revised her diagnosis from severe, recurrent major depressive disorder to bipolar
disorder.  (Sarfaty Dep. at 98-99, R.46 at Ex. B, Vol. 3 at 536.)  The hospital noted
that "all life domains [were] affected."  (Mission Vista Hospital discharge
summary at Bates 3450, R.59 at Ex. G, Vol. 5 at 970.)
     Sarfaty transferred to the hospital's intensive outpatient program on October
21, 2003, and she remained there until November 12, 2003.  (Id.)  She was
released with a strict medication regimen and with the understanding that her
bipolar disorder would require life-long care.  (Sarfaty Dep. at 103, R.46 at Ex. B,
Vol. 3 at 537; Sarfaty Dep. at 71, R.59 at Ex. K, Vol. 5 at 1012.)  She continues to
take medication and to see a psychiatrist on a regular basis.  (Sarfaty Dep. at 97,
118, R.46 at Ex. B, Vol. 3 at 536, 541.)
     In connection with her hospital admission, Sarfaty telephoned Donna
Dougherty, the benefits manager for Mothers Work, and explained her
circumstances.  (Id. at 38-39, Vol. 3 at 527.)  She told Dougherty that she needed a
medical leave of absence.  (Id. at 39, Vol. 3 at 527.)  The hospital sent Dougherty
documents describing Sarfaty's hospitalization for "severe, recurrent major
depressive disorder" and noting Sarfaty's "extreme anxiety" and panic attacks. 
(Disability Claim Form at Bates 71, R.59 at Ex. F, Vol. 5 at 928.)  Sarfaty's doctor
noted on the forms that Sarfaty was undergoing "intense psychotherapy" and that
she was currently unable to engage in work of any kind.  The doctor estimated that
Sarfaty would be able to return to work on November 17, 2003.  (Physician's
Certification at Bates 74, R.59 at Ex. F, Vol. 5 at 930.)  
     On October 6, 2003, Dougherty wrote to Sarfaty and said, "Our concern is
that you get well.  Therefore, we are requesting that you focus on doing whatever
is necessary to achieve that goal."  (Swartz Dep. of 12/8/05 at 74, R.63 at Ex. M,
Vol. 8 at 1437.)  Four days after receiving the hospital records, she sent Sarfaty
another letter stating that Mothers Work had granted her leave from September 30,
2003, through December 23, 2003, pursuant to the Family and Medical Leave Act
("FMLA").  (Dougherty Letters, R.59 at Exs. U & P, Vol. 5 at 1052-53.) 
Dougherty sent one copy of this letter to Gottlieb and another to Safiyah Spann,
the only individual other than the general counsel in Mothers Work's general
counsel's office.  (Id.,, Vol. 5 at 1053; Swartz Dep. of 12/8/05 at 132, R.59 at Ex.
T, Vol. 5 at 1091.)
     Because Sarfaty had taken leave before completing her annual performance
reviews, Gottlieb traveled to Texas to complete the reviews for her.  (Gottlieb
Decl.  6-8, R.46 at Ex. A, Vol. 3 at 514.)  While there, Gottlieb met with two of
Sarfaty's subordinates, who relayed negative information about Sarfaty to
Gottlieb.  (Id.  9, Vol. 3 at 514.)  Lisa Wise and Nicole Leddy both told Gottlieb
that Sarfaty had interviewed for another job on company time, that she had used
company funds to purchase items from Bath & Body for herself, that she was
abusive to subordinates, and that she had told them that she did not like working
for Mothers Work in general or for Gottlieb in particular.  Wise and Leddy both
told Gottlieb that Sarfaty had told them that she planned to obtain a doctor's note
in order to take a leave of absence during the busy holiday season.  (Id.; Wise
Decl.  3-7, R.46 at Ex. D, Vol. 3 at 567-68.)  
     In addition, Wise reported that Sarfaty's behavior was "bizarre" and had
become "increasingly strange," that she was "clearly . . . not happy," that she was
"extremely hot headed and you never knew exactly what kind of mood she would
be in day to day," and that Sarfaty had told her that the job "had taken a toll on her
mental health."   (Wise E-Mail  1-3, 11, R.63 at Ex. Q Bates MW00416, Vol. 8
at 1499-1500.)  Wise noted that in her last conversation with Sarfaty on October 1,
2003, Sarfaty "sound[ed] severely depressed."  (Id.  13, Vol. 8 at 1500.)  She
concluded that Sarfaty "has serious deep rooted issues," that Sarfaty's behavior
"was taking a toll on me," and that she personally "needed to avoid any further
contact with her."  (Id.  3, 13, Vol. 8 at 1499-1500.)
     Following these meetings, Gottlieb told Pamela Saylors, the Director of
Stores for a separate division of Mothers Work, that she "was upset about
Monica's request for medical leave."  (Saylors Dep. at 40, R.46 at Ex. I, Vol. 3 at
592.)  Saylors testified that Gottlieb "implied she did not believe it had merit." 
(Id.)  
     Word of Sarfaty's condition got around the office.  During the first week of
her leave, the administrative assistant to the Vice President of Stores told the loss
prevention manager, "Hey, did you hear about Monica?  I hear she went off her
rocker."  (Williams Dep. of 2/9/06 at 18-19, R.63 at Ex. J, Vol. 7 at 1418.)  The
loss prevention manager described Sarfaty's condition as "general office gossip." 
(Id. at 19, Vol. 7 at 1418.)  He testified that many people in many different
departments commented to him about it.  (Id. at 20-21, Vol. 7 at 1418.) 
     According to Gottlieb, after she returned from Texas, she and general
counsel Craig Swartz repeatedly attempted to telephone Sarfaty in connection with
their ongoing investigation of her expense account.  (Gottlieb Decl.  11, R.46 at
Ex. A, Vol. 3 at 515.)  Gottlieb and Swartz both testified that they viewed
Sarfaty's failure to return their calls as significant.  (Id.  12, Vol. 3 at 515; Swartz
Dep. of 12/8/05 at 13-14, R.46 at Ex. H, Vol. 3 at 583.)  
     Sarfaty denied having received any phone calls or messages from Gottlieb
or Swartz.  (Sarfaty Dep. at 146-47, R.46 at Ex. B, Vol. 3 at 547.)  Despite having
agreed to do so, Mothers Work now says that it cannot produce any telephone
records to confirm that the calls took place.  (Swartz Dep. of 12/9/05 at 117, R.59
at Ex. S, Vol. 5 at 1072.)  Sarfaty's mother, with whom she lived, noted that
although she sometimes forgets to give Sarfaty telephone messages, she tells
callers that if the message is important they should not rely on her memory but
should call right back and leave a message on the answering machine.  (Enrique
Sarfaty Dep. at 42, R.46 at Ex. K, Vol. 3 at 600.)  Sarfaty testified, "If I knew that
someone from Mothers Work was trying to contact me during that period of time, I
would have called them back."  (Sarfaty Dep. at 148, R.46 at Ex. B, Vol. 3 at 547.)
     Phillip Williams, loss prevention manager, testified that in his experience,
Mothers Work would never terminate an employee simply for failure to respond to
telephone messages.  (Williams Dep. of 10/26/05 at 88, R.59 at Ex. X, Vol. 5 at
1118.)  He explained, "Mothers Work would attempt to reach employees in order
to speak with them concerning an investigation via telephone at first. If no
response via telephone, they would send a couple of notices via a trackable mail
system."  (Id.)
     In litigation, Mothers Work produced a copy of a letter that Swartz claims to
have sent to Sarfaty by overnight mail on October 17, 2003 (four days after
Mothers Work had granted Sarfaty medical leave).  (Swartz Letter, R.59 at Ex. V,
Vol. 5 at 1095; Swartz Dep. of 12/8/05 at 13, R.46 at Ex. H, Vol. 3 at 583.)  The
letter contains no mailing address and does not identify the overnight carrier that
purportedly sent it to Sarfaty.  (Swartz Letter, R.59 at Ex. V, Vol. 5 at 1095.) 
Airborne Express, Mothers Work's carrier of choice, has no record of having sent
it (Dougherty Dep. at 60, R.59 at Ex. L, Vol. 5 at 1033; Swartz Dep. of 12/9/05 at
153, R.59 at Ex. S, Vol. 5 at 1076), and Sarfaty denies ever having received it. 
(Sarfaty Dep. at 146-47, R.46 at Ex. B, Vol. 3 at 547.)  After a "diligent search,"
Mothers Work has been unable to produce proof of mailing.  (Swartz Dep. of
12/9/05 at 116-17, R.59 at Ex. S, Vol. 5 at 1071-72.)  The letter said:  "Having
been unable to reach you after several attempts, we are forced to conclude that you
have voluntarily abandoned your position. . . .  Please let us know as soon as
possible if you have any questions on the above."  (Swartz Letter, R.59 at Ex. V,
Vol. 5 at 1095.)
     Williams testified that shortly before Mothers Work terminated Sarfaty, he
overheard Swartz talking to two management officials about her.  (Williams Dep.
of 2/9/06 at 10-11, R.63 at Ex. J, Vol. 7 at 1417.)  According to Williams, Swartz
testified that he would "feel  comfortable terminating her even just based upon
the fact that she would be out of the business for the two busiest holidays of the
year."  (Id. at 13, Vol. 7 at 1417.)
     Mothers Work officially terminated Sarfaty on October 31, 2003
(Termination Form, R.59 at Ex. R, Vol. 5 at 1058), and it advertised for a new
regional manager that day.  (Yahoo Hot Jobs Announcement, R.59 at Ex. Z, Vol. 5
at 1132.)  The termination decision was made by Gottlieb in consultation with
Swartz and Neil Cohen (who, as Vice President of Human Resources, was
Dougherty's direct supervisor).  (Swartz Dep. of 12/8/05 at 130, R.46 at Ex. H,
Vol. 3 at 587; Dougherty Dep. at 10, R.59 at Ex. L, Vol. 5 at 1030.)  Both Gottlieb
and Swartz testified that they knew nothing about Sarfaty's medical condition
when they decided to terminate her.  (Gottlieb Decl.  13, R.46 at Ex. A, Vol. 3 at
515; Swartz Dep. of 12/8/05 at 42-43, R.59 at Ex. T, Vol. 5 at 1085-86.)
     According to the termination form, Sarfaty left Mothers Work "voluntarily"
and was terminated for "job abandonment."  (Termination Form, R.59 at Ex. R,
Vol. 5 at 1058.)  Although company policy and the form itself stated that Mothers
Work must attach all relevant warnings and/or documents, there were no
attachments in Sarfaty's file.  (Id.; Williams Dep. of 10/26/05 at 35-36, R.59 at Ex.
X, Vol. 5 at 1115-16.)  Cohen later testified, "If Monica had violated a policy
which resulted in her termination, that likely would have been documented on the
team member change form."  (Cohen Dep. at 87, R.59 at Ex. W, Vol. 6 at 1100.)
     The termination form also stated that all terminations must be reviewed with
the human resources department "in advance of termination."  (Termination Form,
R.59 at Ex. R, Vol. 5 at 1058.)  Although Mothers Work has identified Cohen as
participating in the decision to terminate Sarfaty (Swartz Dep. of 12/8/05 at 130,
R.46 at Ex. H, Vol. 3 at 587), Cohen testified that "I only know that she left the
company, not the reason that she ultimately left the company."  (Cohen Dep. at 74,
R.59 at Ex. W, Vol. 5 at 1098.)  When confronted with the statement in Sarfaty's
termination form that she had abandoned her job, Cohen expressed bewilderment. 
He testified, "I don't believe that Monica could have abandoned her job if she was
on an approved leave of absence. . . .  If somebody is on an approved leave of
absence, it doesn't make logical sense that they . . . could have abandoned their
job during that period of leave of absence."  (Id. at 110-11, Vol. 5 at 1103-04.)
     Not knowing that she had already been terminated, in early November
Sarfaty contacted Dougherty to tell her that her doctor was going to extend her
leave by one month, to December 17, 2003.  (Sarfaty Dep. at 145, R.46 at Ex. B,
Vol. 3 at 547.)  After the doctor faxed a notice of the extension to Dougherty,
Sarfaty called her again to confirm that she had received it.  (Id. at 146, Vol. 3 at
547.)  Dougherty said nothing about Sarfaty's termination (id.), although she later
admitted that "if somebody were to be terminated while on medical leave, I would
be involved . . . regarding the insurance."  (Dougherty Dep. at 117, R.63 at Ex. K,
Vol. 7 at 1425.)
     Sarfaty first learned of her termination on November 12, 2003, when she
received a COBRA notice about post-termination benefits.  (Sarfaty Dep. at 146,
R.46 at Ex. B, Vol. 3 at 547.)  She called Dougherty to express her confusion. 
Dougherty told her, "Well, I don't know, I just work in HR.  Didn't Craig Swartz
send you a letter?"  Sarfaty responded that she had never heard from anyone in
Mothers Work other than Dougherty.  (Id. at 146-47, Vol. 3 at 547.)
     The stress of her termination set Sarfaty back in her efforts to regain
stability.  (Id. at 150, Vol. 3 at 548.)  According to Sarfaty, the termination "made
it harder for me to return to a level where I could go back to work."  (Sarfaty Aff. 
 15, R.59 at Ex. B, R.E. at 5, Vol. 5 at 896.)  Absent the termination, she said, she
probably would have been able to return to her job within the 12-week period of
her FMLA leave.  (Id.  16, Vol. 5 at 896-97.)  She added that she had liked her
job with Mothers Work and that, despite occasional doubts while she was still
severely ill, she had intended to go back.  (Sarfaty Dep. at 190-92, R.63 at Ex. B,
Vol. 7 at 1333.)  In light of her setback, however, Sarfaty's doctor was unable to
release her for work until April 2004.  (Id. at 97-98, Vol. 7 at 1321-22.)  At that
time, she began working for Victoria's Secret.  (Id. at 134, Vol. 7 at 1329.)
     In December 2004, the U.S. Department of Labor ruled that Mothers Work
had violated Sarfaty's rights under the FMLA by terminating her during her
medical leave.  (Letter from Dep't of Labor, R.59 at Ex. Q, Vol. 5 at 1055.) 
Evidence in the record suggests that Mothers Work may have committed similar
violations with other employees.  Michael Latko, the former head of Mothers
Work's human resources department, testified that "it was the intention of Mothers
Work to discover and comply with the bare minimum requirements of the FMLA." 
(Latko Aff.  14, R.63 at Ex. R, Vol. 8 at 1605.)  Swartz testified that he believed
Mothers Work had terminated district managers while they were out on pregnancy
leave (Swartz Dep. of 12/8/05 at 127, R.63 at Ex. M, Vol. 8 at 1439), and Latko
confirmed that this had occurred.  (Latko Aff.  18, R.63 at Ex. R, Vol. 8 at 1606.) 
Pamela Saylors also testified that she knew of Mothers Work employees who had
gone out on medical leave and were terminated while they were gone.  (Saylors
Dep. at 51, R.59 at Ex. BB, Vol. 5 at 1153.)
          2.   Symptoms of Sarfaty's Bipolar Disorder
     Sarfaty testified that her bipolar disorder did not have a sudden onset;
rather, the symptoms crept up on her over time.  (Sarfaty Dep. at 7, 121, R.46 at
Ex. B, Vol. 3 at 521, 542.)  She had struggled throughout her life with depression,
quitting college because of it.  (Enrique Sarfaty Dep. at 15, R.59 at Ex. E, Vol. 5 at
916; Mission Vista Hospital admission records at Bates 3115, R.59 at Ex. G, Vol.
5 at 942.)  For this reason, the hospital diagnosed her with a "recurrent" mental
illness.  (Mission Vista Hospital discharge summary at Bates 3450, R.59 at G, Vol.
5 at 970.)  Approximately one year before seeking a leave of absence, Sarfaty
started taking an antidepressant.  (Messinger Notes, R.59 at Ex. C, Vol. 5 at 907.) 
This medication did not resolve her symptoms.  (Id.)  To the contrary, it was while
she was on the antidepressant that her symptoms escalated.
     By the time Sarfaty sought a leave of absence, she was acutely ill and was
considering suicide.  (Sarfaty Aff.  5, R.59 at Ex. B, R.E. at 5, Vol. 5 at 894.)  She
"could not interact with people at all."  (Id.)  She was consumed with anxiety and
suffered frequent panic attacks and migraines.  Her sleep was disturbed, with
frequent nightmares and awakenings, and she was extremely fatigued.  Her
appetite was sporadic and she had shortness of breath.  She had low energy, and
she endured extreme depression with crying spells and suicidal ideation.  She also
suffered from nausea.  (Disability Claim Form at Bates 71-72, R.59 at Ex. F, Vol.
5 at 928-29; Mission Vista Hospital Records at Bates 3103, 3105, 3115, R.59 at
Ex. G, Vol. 5 at 939-40, 942.)  She was often irritable and angry and frequently
turned small problems into large ones.  (Sarfaty Dep. at 57, R.46 at Ex. B, Vol. 3
at 532; Sarfaty Dep. at 159, R.59 at Ex. K, Vol. 5 at 1026; Mission Vista Hospital
Records at Bates 3135, R.59 at Ex. G, Vol. 5 at 949.)  
     Sarfaty's psychiatrist noted that she had poor concentration and appeared
withdrawn.  (Disability Claim Form at Bates 71, R.59 at Ex. F, Vol. 5 at 928.)  She
had low self-esteem and considered herself "stupid" and "a failure."  (Mission
Vista Hospital Records at Bates 3147, R.59 at Ex. G, Vol. 5 at 951.)  She worried
about how others perceived her, and she constantly heard internal criticism in her
head.  (Id. at 3162, Vol. 5 at 955.)  Her thoughts were "negativistic and distorted." 
(Id.)
     Sarfaty's psychiatrist initially certified that at least until November 17,
2003, she was unable to perform work of any kind.  (Physician's Certification at
Bates 73, R.59 at Ex. F, Vol. 5 at 932.)  Ultimately, the psychiatrist did not release
Sarfaty to return to work until April 2004.  (Sarfaty Dep. at 138, R.63 at Ex. B,
Vol. 7 at 1330.)
     From September 29, 2003, through April 2004, Sarfaty had numerous panic
attacks  sometimes three in one week and sometimes two in one day.  (Id. at 94,
Vol. 7 at 1321.)  She was unable to care for herself in the most basic of ways:  she
could not get out of bed, bathe, brush her teeth, or get dressed without her
mother's help.  (Id. at 105, Vol. 7 at 1323.)  Her lack of concentration prevented
her from reading or analyzing numbers.  She could not speak clearly, as she had to
keep pausing to retrieve forgotten words.  She was afraid to leave her house, as
she worried about experiencing a panic attack in a public place.  (Id. at 102, Vol. 7
at 1323.)
     By the time Sarfaty's psychiatrist released her to work, many of her
symptoms had abated.  (Id. at 109, Vol. 7 at 1324.)  She is now successfully
employed at Victoria's Secret in a position much like her former job at Mothers
Work.  (Id. at 112, Vol. 7 at 1325.)  Nevertheless, Sarfaty remains limited in
several critical ways.
     Sarfaty still experiences frequent panic attacks.  At the time of her affidavit
in February 2006, she was enduring one panic attack a week.  (Sarfaty Aff.  37,
R.63 at Ex. A, R.E. at 5, Vol. 7 at 1307-08.)  She described these attacks as
"horrible" episodes in which she believed that she was going to die.  (Sarfaty Dep.
at 92, R.59 at Ex. K, Vol. 5 at 1014.)  Although each episode was short in time,
each one felt "like forever" to her.  (Sarfaty Dep. at 93, R.46 at Ex. B, Vol. 3 at
535.)  She is humiliated when the panic attacks occur in public and she wants to
"get away from people" when this happens.  (Sarfaty Dep. at 92, R.59 at Ex. K,
Vol. 5 at 1014; Sarfaty Aff.  35-36, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1307.)
     Sarfaty also noted that "the whole thing about being bipolar [is] that you're
up and down, up and down all the time."  (Sarfaty Dep. at 104, R.63 at Ex. B, Vol.
7 at 1323.)  Although she testified that she is now "able to take care of myself,"
she added that she still has weekends when she is incapable of getting out of her
pajamas.  (Id. at 106, Vol. 7 at 1324.)  She does not experience these stay-in-
pajamas weekends as a choice.  Rather, she experiences them as a direct
consequence of the fluctuations that her bipolar disorder causes in her energy
level.  (Id. at 106-07, Vol. 7 at 1324.)
     To this day, Sarfaty's life is severely circumscribed outside of work.  She
manages to travel and interact with others at work because "I have to.  It's part of
my job."  (Id. at 110, Vol. 7 at 1325.)  However, she is completely unable to
interact with people socially.  (Id. at 109-12, Vol. 7 at 1324-25.)  "If my livelihood
was at stake," she explained, "perhaps I could do that socially."  (Id. at 111, Vol. 7
at 1325.)  Her livelihood does not depend upon her social interactions, however,
so she does not force herself to interact with people outside of work.  As Sarfaty's
moods shift with her bipolar disorder, she alternately suffers self-doubt and fears
the scorn of others or deems herself superior and views others as "not worthy of
interacting with me."  (Sarfaty Aff.  39, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1308.)
     At age 43, Sarfaty lives with her mother and brother.  (Id.  41, Vol. 7 at
1309.)  She has never been married and has no children.  (Mission Vista Hospital
admission records at Bates 3115, R.59 at Ex. G, Vol. 5 at 942.)  Apart from work,
she almost always stays at home.  (Sarfaty Dep. at 109, R.63 at Ex. B, Vol. 7 at
1324.)  Even when she recently took two one-week vacations from her job at
Victoria's Secret, Sarfaty spent the time at home.  (Enrique Sarfaty Dep. at 37,
R.59 at Ex. E, Vol. 5 at 921.)  
     When Sarfaty travels for business meetings, she never socializes with her
colleagues after hours.  (Sarfaty Dep. at 117, R.63 at Ex. B, Vol. 7 at 1326.)  She
has no friends.  (Sarfaty Aff.  38, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1308.) 
"When it is up to me," she said, " I will not associate with people."  (Id.)  She
avoids going to places where she will have to interact with others, and she does
not invite visitors to her house.  (Id.  39-40, Vol. 7 at 1308-09.)  "I tend to be
very compulsive," she explained.  "Everything at home must be in place, clean,
and perfect.  I obsess that if people come over that they will dirty the place and
move things out of order.  I do not even like strangers sitting on the couch."  (Id. 
40, Vol. 7 at 1308.)  When Sarfaty's mother or brother invite people over, Sarfaty
becomes annoyed and avoids them.  (Id., Vol. 7 at 1308-09.)
     Sarfaty continues to experience sudden irritability, which she cannot help
but take out on those around her.  (Id.  34, Vol. 7 at 1306-07.)  She explained that
"[t]here are times when I have to avoid speaking with employees when I am
frustrated with a store's performance because I know that I will snap at them and
get angry.  The irritability comes over me at times, and I really cannot control it
. . . .  I know it is counterproductive but at times I cannot stop myself."  (Sarfaty
Aff.  34, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1306-07.)
     Sarfaty notes that romantic relationships are completely out of the question
for her.  "If I cannot even stay in a mall for extended periods of time and if I
cannot have people over at home," she said, "obviously I cannot have a romantic
relationship with anybody.  This is an upsetting effect of my illness which I wish I
could change."  (Id.  41, Vol. 7 at 1309.)
     Sarfaty's problems with concentration have recently resurfaced.  Even with
a medication adjustment, she cannot focus on what she reads and cannot describe
material that she has just read.  (Sarfaty Dep. at 118-19, R.63 at Ex. B, Vol. 7 at
1327.)  Nor can she focus on what she is hearing or what she is doing.  (Id. at 119,
Vol. 7 at 1327.)  "It's not an episode," she explained.  "It's all the time."  (Id.)  She
also sometimes has problems finishing her sentences because she cannot find the
right words.  (Id. at 123-24, Vol. 7 at 1328.)  "I try to concentrate on what I want
to say," she testified, "but it doesn't happen.  It doesn't come out, or I have
difficulty for it to come across the way I want it to come across."  (Id. at 123, Vol.
7 at 1328.)
     Even now, Sarfaty "catastrophizes" when she is depressed.  (Sarfaty Aff. 
26, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1304.)  She experiences minor
disagreements as major ones.  (Enrique Sarfaty Dep. at 39, R.59 at Ex. E, Vol. 5 at
922.)  She continues to experience obsessive thoughts and has frequent memory
lapses.  (Sarfaty Aff.  26-30, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1304-05.)
     Sarfaty's psychiatrist frequently needs to adjust her medications, both to
address breakthrough symptoms and to relieve medication-induced side effects. 
(Id.  21-23, Vol. 7 at 1302-03.)  The medication does not resolve all of her
symptoms.  (Id.  24, Vol. 7 at 1303.)  Moreover, because bipolar disorder is a
chronic and incurable illness, even the best medical care cannot prevent
debilitating relapses.  (Id.  25, Vol. 7 at 1303.)  Sarfaty lives with the knowledge
that her mental health is fragile.  She constantly monitors her symptoms in order to
reduce her chances of experiencing another severe depression.  (Id.)
          3.   History of the Case
     The EEOC sued Mothers Work, alleging that Mothers Work had violated
the ADA in terminating Sarfaty.  (Complaint, R.1, Vol. 1 at 1.)  Mothers Work
moved for summary judgment on several grounds.  (Motion, R.45, Vol. 2 at 480.) 
First, Mothers Work claimed that Sarfaty was not a "qualified individual with a
disability" within the meaning of the ADA because she was not substantially
limited in any major life activity.  (Id. at 6, Vol. 2 at 490.)  Next, Mothers Work
claimed that it had terminated Sarfaty because it believed that she had abandoned
her job.  (Id. at 21-22, Vol. 2 at 505-06.)  Finally, Mothers Work argued that the
individuals who terminated Sarfaty were unaware of the nature of her illness.  For
this reason, it said, they could not have terminated her "because of" disability.  (Id.
at 22, Vol. 2 at 506.)
     The EEOC opposed the summary judgment motion.  (Response, R.59, Vol.
5 at 827.)  The EEOC argued that Sarfaty's bipolar disorder substantially limited
her in the major life activities of interacting with others, thinking, caring for
herself, concentrating, sleeping, eating, and working.  (Id. at 2, Vol. 5 at 836.)  The
EEOC also argued that Mothers Work's stated reason for termination was a
pretext for discrimination.  (Id. at 22-28, Vol. 5 at 856-62.)  
     C.  District Court Decision
     The district court granted the motion for summary judgment.  (Order, R.65,
R.E. at 4, Vol. 9 at 1669.)  Initially, it held that Sarfaty was not disabled within the
meaning of the ADA.  The court said that Sarfaty was not substantially limited in
any major life activity and observed that her six-week hospitalization "only shows
that she was incapacitated for a definite period of time."  (Id. at 6, 8, Vol. 9 at
1674, 1676.)  It added that "any impairment suffered by Sarfaty was corrected by
the medication protocol established for her."  (Id. at 6, Vol. 9 at 1674.)   
The court expressed "greater concern" with Sarfaty's allegation that she continues
to suffer from at least one panic attack per week, but it refused to consider the
panic attacks to be a substantial limitation on any major life activity.  "Sarfaty,"
the court said, " . . . fails to explain her contradictory deposition testimony that she
is successfully employed in a mid-level management position in the demanding
retail industry."  (Id. at 10, Vol. 9 at 1678.)  
     The district court held in the alternative that even if Sarfaty qualifies as
disabled, the EEOC had not presented any evidence that the decisionmakers were
aware of Sarfaty's disability at the time they terminated her.  The disability claim
form which Sarfaty gave to Dougherty indicated that Sarfaty was suffering from
"major depression, severe, recurrent," reported that she was undergoing outpatient
hospital treatment, and predicted that she would be able to return to work on
November 17, 2003.  "Accordingly," the court said, "at the time it discharged
Sarfaty, Mothers Work was aware that Sarfaty had been hospitalized, required
continuing treatment, was suffering from major depression, but was expected to
recuperate and return to work in December.  The EEOC fails to present any
evidence that at the time of her discharge, Mothers Work was aware that Sarfaty
suffered from any bipolar condition."  (Id. at 12-13, Vol. 9 at 1680-81.)

                      SUMMARY OF ARGUMENT
     This Court should reverse the award of summary judgment.  A reasonable
jury could find both that Sarfaty was disabled with bipolar disorder and that her
disability was a motivating factor in her termination.  
     In refusing to view Sarfaty as disabled, the district court wrongly focused on
her current ability to work while ignoring her substantial limitations in other major
life activities.  A jury could conclude that Sarfaty is substantially limited in the
major life activity of interacting with others in any context other than work.  A
jury could also conclude that she is substantially limited in the major life activity
of thinking, both because of her severely decreased ability to concentrate and
because her thoughts do not reflect reality.  Finally, the district court overlooked
the fact that Sarfaty's recurring depressions have repeatedly caused her enormous
difficulties in caring for herself.  Given the episodic nature of her illness, a jury
could reasonably expect these difficulties to reappear in the future.  As viewed
over her lifetime, Sarfaty's past and expected future periods of inability to care for
herself represent a substantial limitation within the meaning of the ADA.
     The district court erred not only by failing to recognize that a jury could
view Sarfaty as disabled, but also by holding that Mothers Work terminated her
for reasons completely unrelated to her disability.  According to the district court,
Mothers Work could not have terminated Sarfaty because of her bipolar disorder
because the decisionmakers were unaware of Sarfaty's condition.  A jury,
however, could conclude that the record evidence shows otherwise.  Gottlieb,
Sarfaty's supervisor, knew about Sarfaty's "bizarre" behavior and was aware that
Sarfaty was taking medical leave in connection with her stress.  If Gottlieb fired
Sarfaty in part because of her discomfort with Sarfaty's bizarre behavior, or if she
fired her in part because she disapproved of stress-related leave, either of those
reasons would be disability related.  Moreover, to the extent that Mothers Work
avoided specific knowledge of Sarfaty's bipolar disorder because its
decisionmakers did not follow up on warning signs and intentionally chose not to
learn the facts already in Sarfaty's file, Mothers Work can still be held liable under
the ADA.
     Finally, a reasonable jury could infer discrimination because it could
disbelieve Mothers Work's stated reason for terminating Sarfaty.  According to
Mothers Work, it terminated Sarfaty because she failed to return Gottlieb's and
Swartz's phone calls regarding her expense account, leading them to conclude that
she had voluntarily abandoned her job.  The record evidence, however, suggests
otherwise.  Not only is it unclear whether Gottlieb and Swartz did, in fact, attempt
to contact Sarfaty, it is also contrary to company policy to terminate an employee
for job abandonment while that employee is on company-approved medical leave. 
By insisting upon "job abandonment" as its explanation for terminating Sarfaty,
Mothers Work throws its credibility into question.
                            ARGUMENT
     The district court erred in granting summary judgment to Mothers
     Work because a reasonable jury could find that Sarfaty was disabled
     with bipolar disorder and that her disability was a motivating factor in
     her termination.

     A.  Standard of Review

     This Court reviews a district court's award of summary judgment de novo.  Minter
v. Great Am. Ins. Co., 423 F.3d 460, 464-65 (5th Cir. 2005).  Summary judgment is
appropriate only if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.  Id. at 464.  In assessing a motion for summary
judgment, the Court must view the record evidence, as well as all reasonable inferences
therefrom, in the light most favorable to the non-moving party.  Id. at 465.

     B.   A jury could conclude that Sarfaty is disabled within the meaning
        of the ADA.
          
     The ADA provides three ways in which an individual may be deemed disabled: 
(1) the individual has "a physical or mental impairment that substantially limits one or
more of the major life activities of such individual," (2) the individual has "a record of
such an impairment," or (3) the individual is "regarded as having such an impairment." 
42 U.S.C. 
 12102(2).  The parties do not dispute that Sarfaty's bipolar disorder constitutes a
"mental impairment" within the meaning of the statute.  See EEOC Enforcement
Guidance on the ADA and Psychiatric Disabilities at question 1 (Mar. 25, 1997)
[hereinafter "EEOC Enforcement Guidance"] (bipolar disorder is a "mental impairment"
under the ADA).  At issue is whether her bipolar disorder substantially limits one or
more of Sarfaty's major life activities.
     A "major life activity" is one "of central importance to daily life."  Williams v.
Toyota Motor Mfg., Ky., Inc., 534 U.S. 184, 197 (2002).  EEOC regulations provide a
non-exclusive list of "major life activities" under the ADA, including "functions such as
caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working."  29 C.F.R.  1630.2(i).  For purposes of determining
disability, a court should always look first to major life activities other than working. 
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 & n.10 (5th Cir. 1995); EEOC
Enforcement Guidance at question 4 ("Working should be analyzed only if no other
major life activity is substantially limited by an impairment.").   Indeed, it is error for a
court to focus exclusively on the effect of an impairment in the workplace.  "[T]he
definition is intended to cover individuals with disabling impairments regardless of
whether the individuals have any connection to a workplace."  Toyota Motor Mfg., 534
U.S. at 201.
     An impairment rises to the level of a disability only if it substantially limits a
major life activity.  An individual is "substantially limited" if she is "unable to perform a
major life activity that the average person in the general population can perform" or if
she is "significantly restricted as to the condition, manner, or duration under which [she]
can perform a particular major life activity as compared to the condition, manner, or
duration under which the average person in the general population can perform that same
major life activity."  29 C.F.R.  1630.2(j)(1).  
     The impairment's impact must also be permanent or long-term.  Toyota
Motor Mfg, 534 U.S. at 198.  The relevant time period for assessing the existence
of a disability is the time of the adverse employment action.  Samuels v. Kansas
City Mo. Sch. Dist., 437 F.3d 797, 802 (8th Cir. 2006); Swanson v. Univ. of
Cincinnati, 268 F.3d 307, 316 (6th Cir. 2001); Cash v. Smith, 231 F.3d 1301, 1306
(11th Cir. 2000).  The Court must consider the "duration or expected duration of
the impairment" and the "permanent or long term impact, or the expected
permanent or long term impact of or resulting from the impairment."  29 C.F.R. 
 1630.2(j)(2)(ii)-(iii).  Because the Court must consider "expected" duration and
"expected" impact, an impairment may constitute a disability as soon as it arises. 
An impairment that substantially limits or is expected to substantially limit a major
life activity for more than several months qualifies as a disability under the ADA. 
EEOC Enforcement Guidance at question 7; see Shannon v. Henderson, 275 F.3d
42, 2001 WL 1223633, at *7 (5th Cir. Sept. 25, 2001) (per curiam) (unpublished)
(analyzing extent of limitations during six-month period).  
     Evidence of present-day limitations, though not dispositive, may "provide a
certain degree of credence to the claim that [the impairment] may have been
substantially limiting' at the time at issue."  EEOC v. Sears, Roebuck & Co., 417 F.3d
789, 802 (7th Cir. 2005).  In addition, the existence of current limitations demonstrates
that the condition "was not fleeting."  Id.
     The record evidence in this case would allow a reasonable jury to conclude that
Sarfaty's bipolar disorder substantially limits her, as compared to the average person in
the general population, in the major life activities of interacting with others and thinking. 
The record evidence would also allow a reasonable jury to conclude that, over the course
of her lifetime, Sarfaty's bipolar disorder has limited and will substantially limit her for
at least several months in the major life activity of caring for herself.  The recurrent
nature of her mental illness makes it reasonable to infer that the major limitations she has
experienced in the past will arise again in the future.  


          1.A jury could find that Sarfaty is disabled because she
            is substantially limited in the major life activity of
            interacting with others.

     The EEOC urges this Court to hold that interacting with others is a major
life activity.  See Shannon, 2001 WL 1223633 (assuming without deciding that
"socialization" is a major life activity).  Based on the record evidence, a jury could
find that Sarfaty is substantially limited in interacting with others because,
although she can interact at work, she cannot interact socially.
     The EEOC and virtually all courts of appeals to consider the issue have held
or assumed that interacting with others is a major life activity within the meaning
of the ADA.  See EEOC Enforcement Guidance at question 3 (interacting with
others is a major life activity); Head v. Glacier N.W., Inc., 413 F.3d 1053, 1059
(9th Cir. 2005) (holding the same); Lanman v. Johnson County, Kan., 393 F.3d
1151, 1157 (10th Cir. 2004) (assuming the same); Jacques v. DiMarzio, Inc., 386
F.3d 192, 202 (2d Cir. 2004) (holding the same); Rohan v. Networks Presentations
LLC, 375 F.3d 266, 274 (4th Cir. 2004) (assuming the same); Heisler v. Metro.
Council, 339 F.3d 622, 628-29 (8th Cir. 2003) (assuming the same); Emerson v.
N. States Power Co., 256 F.3d 506, 511 (7th Cir. 2001) (treating interacting with
others as an activity that feeds into the major life activities of learning and
working).  But cf. Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir. 1997)
("ability to get along with others" is not a major life activity).  As the Second
Circuit has observed, "it is difficult to contradict the Ninth Circuit's
characterization of interacting with others' as an essential, regular function' that
easily falls within the definition of "major life activity."'"  Jacques, 386 F.3d at
201 (quoting McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir.
1999)).
     In this case, the district court erred by emphasizing Sarfaty's ability to
interact with others at work and virtually ignoring her inability to interact socially. 
(Order at 8-10, R.65, Vol. 9 at 1676-78.)  As the Supreme Court has held, an
impairment is substantially limiting if it "prevents or severely restricts the
individual from doing activities that are of central importance to most people's
daily lives."  Toyota Motor Mfg., 534 U.S. at 198.  Social interaction outside of
work surely falls into this category.  Moreover, the relevant question for ADA
analysis is not whether Sarfaty is completely unable to perform a major life
activity; it is whether she is substantially limited in performing that life activity as
compared to the average person in the general population.  29 C.F.R. 
 1630.2(j)(1).  
     The record evidence shows that Sarfaty is, indeed, substantially limited in
her ability to interact with others outside of work.  At the time of her termination,
Sarfaty testified, "I was not able to interact with people at all."  (Sarfaty Aff.  5,
R.59 at Ex. B, R.E. at 5, Vol. 5 at 894.)  Now, at age 43, she still lives with her
mother and brother.  (Sarfaty Aff.  41, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1309.) 
Unless she is required to leave her house for business, she rarely does so.  (Sarfaty
Dep. at 109, R.63 at Ex. B, Vol. 7 at 1324.)  There are weekends when she cannot
even get out of her pajamas, much as she might want to.  (Id. at 106, Vol. 7 at
1324.)  
     Sarfaty has no friends and no romantic involvement.  (Sarfaty Aff.  38,
41, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1308-09.)  She avoids going to places such
as shopping malls where she will be forced to interact with people, and she never
invites visitors to her home.  (Id.  39-40, Vol. 7 at 1308-09.)  When her mother
or brother invites people over, Sarfaty retreats so that she will not have to interact
with them.  (Id.  40, Vol. 7 at 1308-09.)  She endures unpredictable and
uncontrollable irritability, which she takes out on other people even though she
recognizes that this is counterproductive.  (Id.  34, Vol. 7 at 1306-07.)  She also
suffers weekly panic attacks.  (Id.  37, Vol. 7 at 1307.)  She avoids people when
she can in part because of the extreme embarrassment that she experiences when
these attacks occur in public.  (Id.  35-36, Vol. 7 at 1307; Sarfaty Dep. at 92,
R.59 at Ex. K, Vol. 5 at 1014.)
     To the extent that the district court downplayed Sarfaty's difficulties in
interacting with others outside of work because of her admitted current ability to
interact with others professionally, the court misunderstood the involuntary nature
of Sarfaty's social limitations.  Psychiatrists have long understood that the effects
of mood disorders may manifest themselves differently in different settings.  As
one study explains, "functions which depend on traditional roles in family or at
work tend to oscillate with the level of depression, whereas functions that require
personal initiative (e.g. leisure) may remain abnormal well into the interepisodic
phase."  G. De Lisio, I. Maremmani, G. Perugi, G.B. Cassano, J. Delitito, H.S.
Akiskal, Impairment of Work and Leisure in Depressed Outpatients:  A
Preliminary Communication, J. Affect. Disord. 79-84 (Mar.-Apr. 1986).<1>
     Sarfaty has testified to the enormous effort that it takes for her to socialize at
work.  "I interact with people in my job because I have to," she said.  (Sarfaty Dep.
at 110, R.63 at Ex. B, Vol. 7 at 1325.)  But, she explained, this is not an effort that
she can reproduce in her personal time.  "It's just when I'm not working," she said,
"that I have problems interacting with others. . . .  If my livelihood was at stake,
perhaps I could do that socially."  (Id. at 111, Vol. 7 at 1325.)
     Sarfaty's virtual inability to leave her home for reasons other than work
demonstrates that she is substantially limited in the major life activity of
interacting with others.  Her limitations go well beyond the ordinary social anxiety
which courts have held to be insufficient to establish ADA coverage.  See Jacques,
386 F.3d at 203 (plaintiff is substantially limited "when the impairment severely
limits the plaintiff's ability to connect with others, i.e., to initiate contact with
other people and respond to them, or to go among other people  at the most basic
level of these activities"); McAlindin, 192 F.3d at 1235 ("plaintiff must show that
his relations with others were characterized on a regular basis by severe problems,
for example, consistently high levels of hostility, social withdrawal, or failure to
communicate when necessary'") (quoting EEOC Enforcement Guidance at 5). 
     Sarfaty satisfies the standard articulated in Jacques, 386 F.3d at 203,
because she is severely limited in her ability to go out among others for any reason
unconnected to her work.  She also satisfies the standard articulated in McAlindin,
192 F.3d at 1235, because she demonstrates consistently high levels of social
withdrawal.  The fact that she can overcome her difficulties while at work does not
negate the serious limitations that she experiences at all other times.  See EEOC
Enforcement Guidance at question 7 (employee with major depression is
substantially limited in major life activity of interacting with others where he is
"socially withdrawn (except for going to work)").   A jury, therefore, could
reasonably conclude that Sarfaty is substantially limited in her ability to interact
with others as compared to the average person in the general population.
     
          2. A jury could find that Sarfaty is disabled because she is
            substantially limited in the major life activity of thinking.

     The EEOC urges this Court to hold that thinking is a major life activity.  All
of the courts of appeals to consider this question have agreed or assumed that it is. 
See Battle v. UPS, Inc., 438 F.3d 856, 861 (8th Cir. 2006) ("thinking and
concentrating qualify as major life activities' under the ADA"); Head, 413 F.3d at
1061 (9th Cir.) ("thinking is a major life activity"); Lanman, 393 F.3d at 1157
(10th Cir.) (assuming that thinking is a major life activity); Nawrot v. CPC Int'l,
277 F.3d 896, 903 (7th Cir. 2002) (thinking is a major life activity); EEOC v. Sara
Lee Corp., 237 F.3d 349, 353 (4th Cir. 2001) (assuming sub silentio that thinking
is a major life activity); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d
Cir. 1999) (thinking is a major life activity); cf. Whitney v. Greenberg, Rosenblatt,
Kull & Bitsoli, P.C., 258 F.3d 30, 33 n.4 (1st Cir. 2001) (assuming that thinking is
a major life activity but holding that it may reasonably be subsumed within the
major life activities of working and learning).  As the Third Circuit has noted,
"[w]e hardly need to point out that thinking is inescapably central to anyone's
life."  Taylor, 184 F.3d at 307.
     At the time of her termination, Sarfaty was substantially limited in her
ability to think.  She was consumed with anxiety and suffered frequent panic
attacks.  (Disability Claim Form at Bates 71-72, R.59 at Ex. F, Vol. 5 at 928-29.) 
She turned small problems into large ones.  (Sarfaty Dep. at 57, R.46 at Ex. B,
Vol. 3 at 532.)  Her concentration was poor, and she considered herself "stupid"
and "a failure."  (Disability Claim Form at Bates 71, R59 at Ex. F, Vol. 5 at 928;
Mission Vista Hospital Records at Bates 3147, R.59 at Ex. G, Vol. 5 at 951.)  She
could not focus on reading or analyzing numbers.  (Sarfaty Dep. at 138, R.63 at
Ex. B, Vol. 7 at 1330.)  Nor could she speak clearly, as she had to keep pausing to
retrieve forgotten words.  (Id. at 102, Vol. 7 at 1323.)  She worried about how
others perceived her, and she constantly heard internal criticism in her head. 
(Mission Vista Hospital Records at Bates 3162, R.59 at Ex. G, Vol. 5 at 955.)  Her
thoughts were "negativistic and distorted."  (Id.)  
     Although she is far healthier now than she was then, Sarfaty remains
substantially limited in thinking both because of her severely decreased ability to
concentrate and because her thoughts distort her view of reality.  Sarfaty continues
to suffer panic attacks once a week in which she is convinced that she is going to
die.  (Sarfaty Aff.  37, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1307; Sarfaty Dep. at 92,
R.59 at Ex. K, Vol. 5 at 1014.)  During these attacks, she cannot access rational
thoughts to persuade herself that she is not truly in danger.  Sarfaty also cannot
think clearly about her interactions with other people.  Due to the ups and downs
of her bipolar disorder, she sometimes suffers low self-esteem and perceives that
people are scrutinizing and criticizing her, while at other times she feels "as
though people are not worthy of interacting with me."  (Sarfaty Aff.  33, 39,
R.63 at Ex. A, R.E. at 5, Vol. 7 at 1306, 1308.)  It was this latter symptom, no
doubt, that Gottlieb was referring to when she told Sarfaty that she did not think
Sarfaty was as good as Sarfaty thought she was.  (Sarfaty Dep. at 44, R.59 at Ex.
K, Vol. 5 at 1007.)
     Sarfaty continues to obsess about various matters and to turn small
problems into large ones.  (Sarfaty Aff.  26-30, R.63 at Ex. A, R.E. at 5, Vol. 7
at 1304-05.)  According to her mother, she still views minor disagreements as
major arguments.  (Enrique Sarfaty Dep. at 39, R.59 at Ex. E, Vol. 5 at 922.)  In
Sarfaty's words, she "catastrophizes."  (Sarfaty Aff.  26, R.63 at Ex. A, R.E. at 5,
Vol. 7 at 1304.)  Because her bipolar disorder causes Sarfaty to cycle up and down
even while on medication, Sarfaty's thoughts cause her to perceive her
circumstances and herself in an unpredictable and fluctuating manner.  Her
subjective thoughts about herself and others often make her irritable despite the
lack of any objective reason to be so.  (Id.  34, Vol. 7 at 1306-07.)  She cannot
think clearly in order to calm herself down.  (Id.)
     Sarfaty also suffers from recurring problems with concentration.  (Sarfaty
Dep. at 118-19, 123-24, R.63 at Ex. B, Vol. 7 at 1327-28.)  She has frequent
memory lapses.  (Sarfaty Aff.  29-30, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1304-
05.)  At the time of her deposition, she noted that even with a recent medication
adjustment, she was unable to focus on what she was reading and could not
describe material that she had just read.  (Sarfaty Dep. at 118-19, R.63 at Ex. B,
Vol. 7 at 1327.)  She was also unable to focus on what she was hearing or what
she was doing.  (Id. at 119, Vol. 7 at 1327.)  "It's not an episode," she explained,
"[i]t's all the time."  (Id.)  She sometimes struggles to find the right words and is
unable to complete her sentences.  (Id. at 123-24, Vol. 7 at 1328.)
     A reasonable jury could find that these ongoing symptoms are a significant
limitation for Sarfaty.  The average person in the general population does not
struggle the way Sarfaty does to focus on her activities or to express a thought. 
Nor does the average person struggle to think about herself and her circumstances
in a way that bears a reasonable relationship to reality.  Certainly, the average
person does not struggle once a week with the sudden, absolute conviction that she
is about to die.
     The district court missed the point by noting that Sarfaty can think well
enough to succeed at her job.  (Order at 10, R.65, Vol. 9 at 1678.)  Her ability to
succeed professionally does not mean that she does not struggle with substantial
limitations.  It means only that she has been able to overcome tremendous
obstacles in her professional, if not her personal, life.  See  Toyota Motor Mfg.,
534 U.S. at 201 (court should look at effect of impairment outside the workplace). 
The record evidence raises a material question about whether Sarfaty is
substantially limited in her ability to think, and this Court should send that
question to a jury.

     3.  A jury could conclude that Sarfaty is disabled because she has
       been substantially limited in the major life activity of caring for
       herself, and because the episodic nature of her illness makes it
       likely that this substantial limitation will recur.

     A reasonable jury could find that Sarfaty is disabled within the meaning of
the ADA because the episodic nature of her illness makes it likely that she will
experience periods of time in the future, as she has in the past, in which she is
substantially limited in caring for herself.  See Mason v. United Air Lines, Inc.,
274 F.3d 314, 317 (5th Cir. 2001) (stating in dictum that caring for oneself is a
major life activity); see also Jacques, 386 F.3d at 204 (caring for oneself is a major
life activity); Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 385 (3d Cir. 2004)
(same); Fraser v. Goodale, 342 F.3d 1032, 1043 (9th Cir. 2003) (same).  
     Even before arriving at Mothers Work, Sarfaty's depression was so
disabling that it forced her to quit college.  (Mission Vista Hospital admission
records at Bates 3115, R.59 at Ex. G, Vol. 5 at 942.)  Later, at the time of her
termination, its effects were even more extreme.  In September 2003, Sarfaty was
so ill that she could not get out of bed, bathe, brush her teeth, or get dressed
without her mother's help.  (Sarfaty Dep. at 105, R.63 at Ex. B, Vol. 7 at 1323.) 
Compare Jacques, 386 F.3d at 204-05 (plaintiff not substantially limited in caring
for self where she could care for her home, have a normal social life, and attend to
her personal hygiene).  Sarfaty's symptoms gradually improved as her medication
began to work, but the improvement was gradual and involved repeated setbacks. 
(Sarfaty Dep. at 104, R.63 at Ex. B, 106-07, Vol. 7 at 1323-24.)  It was not until
April 2004 that Sarfaty was reliably able to take care of herself well enough that
her psychiatrist would release her to work.  (Id. at 138, Vol. 7 at 1330.)  
     The record evidence shows that Sarfaty's bipolar disorder is an incurable
condition and that even the best medical care cannot prevent debilitating relapses. 
(Sarfaty Aff.  25, R.63 at Ex. A, R.E. at 5, Vol. 7 at 1303.)  Sarfaty constantly
monitors her symptoms in order to reduce her chances of experiencing another
severe depression.  However, she knows that her mental health is fragile.  (Id.)  
     In light of Sarfaty's history of severe, recurring depression, a reasonable
jury could find it likely that Sarfaty will experience additional severe depressions
in the future.  A jury could also conclude that her previous symptoms of
depression  including her total inability to care for herself  are likely to recur. 
Adding together the past times in which she could not care for herself with the
future times in which a jury expects that she may be unable to do so, the jury could
reasonably find that Sarfaty is substantially limited in the major life activity of
caring for herself.
     
     C.   A jury could reasonably find that Sarfaty's disability was a
       motivating factor in Mothers Work's decision to terminate her.

     The ADA prohibits employers from relying on an employee's disability as
"a motivating factor" in a challenged employment decision.  Buchanan v. City of
San Antonio, 85 F.3d 196, 200 (5th Cir. 1996) (citing with approval Pedigo v.
P.A.M. Transp., Inc., 60 F.3d 1300, 1301-03 (8th Cir. 1995)).  Although the
district court believed there was a factual dispute about whether Mothers Work
terminated Sarfaty because she "was intending to quit" (Order at 12, R.65, R.E. at
4, Vol. 9 at 1680), it granted summary judgment on the ground that the EEOC had
produced no evidence to show that the decisionmakers were aware that Sarfaty
had bipolar disorder.  (Id. at 12-13.)  To the contrary, the evidence is sufficient to
show that Mothers Work knew about some of Sarfaty's symptoms and wanted to
terminate her because she exhibited these symptoms.  There are three flaws in the
district court's approach to the evidence of the company's level of knowledge and
motivation for its decision.  
     First, a reasonable jury could find that Gottlieb was aware of several
symptoms of Sarfaty's condition, that she had a negative response to those
symptoms, and that she wanted to terminate Sarfaty because of them.  The
evidence is sufficient to allow a jury to conclude that the company took action
based on Sarfaty's bipolar disorder.
     Second, a jury could reasonably find that Sarfaty's medical information was
available in the company's files at the time of her termination.  For this reason, a
jury could find the decisionmakers' claim that they were unaware of Sarfaty's
condition when they terminated her to be inherently incredible.
     Finally, a jury could conclude that the decisionmakers fabricated a reason
for terminating Sarfaty (job abandonment) to cover up the real reason for their
decision  a desire to rid themselves of an employee with a disability who needed
leave to obtain treatment and manage her condition.  That the company proffered
such a contrived explanation for its decision would allow a jury to question further
the plausibility of the decisionmakers' claimed ignorance of Sarfaty's condition.

          1.  A jury could reasonably find that Mothers Work terminated
            Sarfaty because of Gottlieb's reactions to symptoms that
            cannot be separated from Sarfaty's disability.
           
     The district court erred in refusing to allow a jury to consider the evidence
and to draw its own conclusions about what Mothers Work knew and why it acted
as it did.  By excusing Mothers Work's actions because "the EEOC fails to present
any evidence that at the time of her discharge, Mothers Work was aware that
Sarfaty suffered from any bipolar condition" (Order at 13, R.65, R.E. at 4, Vol. 9
at 1681), the district court improperly separated symptoms of a disability from the
disability itself.  The court's approach would allow an employer to escape liability
for age discrimination if it terminated an employee based on his gray hair and
wrinkled skin but without knowing the employee's precise age.  Action that is
taken based on characteristics that are associated with a protected classification is
discrimination based on that classification.  See EEOC v. Kinney Shoe Corp., 104
F.3d 683, 686 (4th Cir. 1997) ("Whether Kinney fired Martinson because he
suffered from epilepsy or because of the specific attributes' of his disease, i.e., his
seizures, is immaterial  both are disabilities and an employer may not use either
to justify discharging an employee so long as that employee is qualified for the
job.").  
     A reasonable jury could find that Gottlieb decided to terminate Sarfaty at
least in part because she wanted to eliminate an employee whose fluctuating
moods adversely affected those around her and who required leave to manage her
condition.  The evidence shows that Sarfaty was such a strong employee that she
had taken over as Acting Director of Stores for the Motherhood division while
Gottlieb was on vacation.  (Sarfaty Dep. at 24, R.46 at Ex. B, Vol. 3 at 524.) 
Nevertheless, as soon as Sarfaty's subordinates complained about her "bizarre"
behavior and symptoms of depression, and Sarfaty took medical leave to deal with
her "stress," Gottlieb began to orchestrate an effort to get Sarfaty terminated. 
(Gottlieb Decl.  9, R.46 at Ex. A, Vol. 3 at 514; Wise Decl.  3-7, R.46 at Ex. D,
Vol. 3 at 567-68; Wise E-Mail  1-3, 11, R.63 at Ex. Q Bates MW00416, Vol. 8
at 1499-1500.)  
     To the extent that Gottlieb terminated Sarfaty based on the symptoms of her
disability (stress, reportedly bizarre behavior, and depression) or her efforts to
obtain treatment, a jury could infer that Gottlieb was acting on the basis of
widespread stigma against people with mental illness.  See generally U.S. Dep't of
Health & Human Servs., Mental Health:  A Report of the Surgeon General 
Executive Summary viii (1999) [hereinafter Surgeon General's Report] (noting
"stigma that many in our society attach to mental illness and to people who have a
mental illness"); Peter Byrne, Stigma of Mental Illness and Ways of Diminishing
It, 6 Advances in Psychiatric Treatment 65 (2000)<2> (describing the "ubiquity" of
mental illness stigma).  The Surgeon General has noted, "The fact that many, if not
most, people have experienced mental health problems that mimic or even match
some of the symptoms of a diagnosable mental disorder tends, ironically, to
prompt many people to underestimate the painful, disabling nature of severe
mental illness."  Surgeon General's Report at xiv.  As one writer has poignantly
described:  
          People around you view your symptoms as shortcomings:  "It's
     always about you you you. . . .  Must you always draw attention to yourself?
     . . .  Go away.  You're scaring me!"
     
          Or discount your feelings:  "You're making mountains out of
     molehills. . . .  Just get over it! . . .  Cheer up and give us a smile."
     
Lana R. Castle, Bipolar Disorder Demystified:  Mastering the Tightrope of Manic
Depression 56 (Marlowe & Co. 2003).  
     A jury could conclude that Mothers Work employees, including Gottlieb,
shared this feeling that mental illness reflects personal weakness.  General office
gossip while Sarfaty was on medical leave characterized her as having gone "off
her rocker."  (Williams Dep. of 2/9/06 at 18-19, R.63 at Ex. J, Vol. 7 at 1418.) 
Moreover, Gottlieb suggested to Saylors that Sarfaty was exaggerating her need
for medical leave.  (Saylors Dep. at 40, R.46 at Ex. I, Vol. 3 at 592.)  A jury could
conclude that Mothers Work terminated Sarfaty in part because the
decisionmakers saw Sarfaty's medical leave as unnecessary and believed that she
could have pulled herself together through sheer willpower.  A jury could also
conclude that Mothers Work routinely discharged individuals who were taking
FMLA leave.  (Latko Aff.  14, 18, R.63 at Ex. R, Vol. 8 at 1605-06.)  Because
Sarfaty took this leave in order to receive treatment, a termination based on the
leave would be intimately linked to Sarfaty's bipolar disorder.
     In addition to finding that Mothers Work terminated Sarfaty out of a belief
that she was exaggerating her symptoms and should not have taken leave, a jury
could also find that Mothers Work terminated her in part because her mental
illness made those around her uncomfortable.  Wise told Gottlieb that Sarfaty's
behavior "was taking a toll on me," and that she personally "needed to avoid any
further contact with her."  (Wise E-Mail  3, 13, R.63 at Ex. Q Bates MW00416,
Vol. 8 at 1499-1500.)  Gottlieb also expressed discomfort with Sarfaty, telling
Sarfaty that Sarfaty was not as good as Sarfaty thought she was.  (Sarfaty Dep. at
44, R.59 at Ex. K, Vol. 5 at 1007.)  A jury could find that Gottlieb terminated
Sarfaty in part for this reason.
     Terminating an employee because of discomfort with the employee's mental
illness would be consistent with society's general approach towards people who
are mentally ill.  "A person's being crazy' or unbalanced' is generally taken to be
an understandable reason not to want the person at one's dinner party, in one's
bed, or at the next table at Starbucks."  Elizabeth F. Emens, The Sympathetic
Discriminator:  Mental Illness, Hedonic Costs, and the ADA, 94 Geo. L.J. 399,
406 (Jan. 2006).  Elizabeth Emens has written at length about the "hedonic costs"
to mentally healthy individuals of being around people who are mentally ill,
defining those costs as an increase in negative emotion or a loss of positive
emotion.  Id. at 420-42.  "Numerous studies," she says, "document the
transmission of negative emotions by individuals suffering from depression."  Id.
at 435.
      Although it is understandable that people wish to avoid picking up the
negative emotions of mentally ill coworkers, the ADA was passed in part to assure
that employers would not use such reactions to justify adverse decisions in the
workplace against persons with disabilities.  See H.R. Rep. No. 101-485(III), at 25
(1990) ("many of the problems faced by disabled people are not inevitable, but
instead are the result of discriminatory policies based on unfounded, outmoded
stereotypes and perceptions, and deeply imbedded prejudices toward people with
disabilities").
     To the extent that Gottlieb relied on prejudice or any other response to the
symptoms of Sarfaty's bipolar disorder, her decision was based on Sarfaty's disability
and was illegal under the ADA.  Because the evidence allows the inference that Gottlieb
was motivated at least in part by concerns about Sarfaty's symptoms and/or her request
for leave, the district court erred by not giving a jury the opportunity to assess Mothers
Work's level of knowledge and motivation.

          2.   Mothers Work cannot escape liability for its decision to
            terminate Sarfaty by claiming ignorance of her condition.

     As described in the previous section, a jury could find that Gottlieb had
actual knowledge of many of Sarfaty's symptoms.  The district court erred in
requiring the EEOC to prove that "at the time of her discharge, Mothers Work was
aware that Sarfaty suffered from any bipolar condition."  (Order, R.65, R.E. at 4,
Vol. 9 at 1680-81.)  The ADA does not require such a specific level of knowledge
in order to hold employers responsible for discriminatory decisions.
     Although it is true that not every employee with "bizarre" behavior suffers
from a disability that is protected under the ADA, the decisionmakers in this case
deliberately acted based on Sarfaty's symptoms while going out of their way to
maintain a posture of technical ignorance about her disability.  Gottlieb knew that
Sarfaty was on company-approved medical leave for stress, and Wise had told her
that Sarfaty seemed "severely depressed."  (Wise E-Mail  13, R.63 at Ex. Q Bates
MW00416, Vol. 8 at 1500.)  Based solely on Wise's and Leddy's second-hand
accounts of Sarfaty's comments to them, Gottlieb decided that Sarfaty was
fabricating her need for medical leave and that she was not truly ill.  (Saylors Dep.
at 40, R.46 at Ex. I, Vol. 3 at 592.)  
     At no point did Gottlieb ever ask to see the medical documentation that
Sarfaty had supplied to justify her leave request.  Had she looked at the
documents, she would have understood that Sarfaty's stress was a symptom of
mental illness.  The documents that Mission Vista Hospital faxed to Mothers
Work described Sarfaty's hospitalization for "major depressive disorder" and
noted her "extreme anxiety" and panic attacks.  (Disability Claim Form at Bates
71, R.59 at Ex. F, Vol. 5 at 928.)  Sarfaty's doctor noted on the forms that she was
undergoing "intense psychotherapy" and was currently unable to engage in work
of any kind.  (Physician's Certification at Bates 74, R.59 at Ex. F, Vol. 5 at 931.) 
Although the doctor predicted that Sarfaty would be able to return to work on
November 17, 2003 (id.), this prediction did not negate the existence of a
disability because an individual who can work may be substantially limited in
another major life activity.  See Toyota Motor Mfg., 534 U.S. at 201; Dutcher, 53
F.3d at 726 & n.10.
     Swartz and Cohen, the two other decisionmakers, similarly exhibited
deliberate blindness to Sarfaty's disability.  Despite Swartz's position as general
counsel, notice of Sarfaty's medical leave went not to him but to the one other
individual who worked in his office.  (Dougherty Letter, R.59 at Ex. P, Vol. 5 at
1052-53; Swartz Dep. of 12/8/05 at 132, R.59 at Ex. T, Vol. 5 at 1091.)  Although
he must have known that Sarfaty was on some sort of leave because he claims to
have tried repeatedly to contact her (Swartz Dep. of 12/8/05 at 13-14, R.46 at Ex.
H, Vol. 3 at 583), he did not check to learn the nature of the leave or the evidence
which justified it.  (Swartz Dep. of 12/8/05 at 42-43, R.59 at Ex. T, Vol. 5 at 1085-
86.)  Likewise, Cohen  the head of the human resources department and
Dougherty's direct supervisor  never checked with Dougherty or looked in
Sarfaty's file for details of Sarfaty's leave.  (Cohen Dep. at 74, R.59 at Ex. W, Vol.
5 at 1098.)
     Had the decisionmakers looked at Sarfaty's file, they would have found a
copy of the letter in which Dougherty told Sarfaty, "Our concern is that you get
well.  Therefore, we are requesting that you focus on doing whatever is necessary
to achieve that goal."  (Swartz Dep. of 12/8/05 at 74, R.63 at Ex. M, Vol. 8 at
1437.)  A jury could find that it would have been unreasonable for the
decisionmakers to conclude that Sarfaty's failure to return phone calls meant that
she was abandoning her job when Dougherty had expressly told her to focus
entirely on getting well.
     Notably, Sarfaty's request for a medical leave constituted a request for a
reasonable accommodation.  Once Sarfaty had requested a reasonable
accommodation, Mothers Work was obligated to participate with her in an
interactive process to determine what accommodation, if any, would be
appropriate.  See Cutrera v. Bd. of Sup'rs of La. State Univ., 429 F.3d 108, 112
(5th Cir. 2005).  Mothers Work could not escape this obligation by shielding itself
from knowledge of her disability.  Sears, 417 F.3d at 804.  By terminating Sarfaty
while she was on leave, Mothers Work unilaterally denied her any reasonable
accommodation.  The burden falls on Mothers Work to demonstrate why it was
justified in doing so.  See Cutrera, 429 F.3d at 113 ("An employer may not stymie
the interactive process of identifying a reasonable accommodation for an
employee's disability by preemptively terminating the employee before an
accommodation can be considered or recommended."); Johnson v. Gambrinus
Co./Spoetzl Brewery, 116 F.3d 1052, 1058 (5th Cir. 1997) (defendant has burden
of proving undue hardship of proposed reasonable accommodation).
     The EEOC urges this Court to hold that a company's deliberate efforts to
avoid knowledge of a disability cannot protect it from liability under the ADA.  By
using tunnel vision and not consulting with Dougherty, the decisionmakers in this
case may have been able to maintain technical ignorance of Sarfaty's disability. 
Under the facts of this case, however, their technical ignorance should not be
enough to defeat liability.  Moreover, given the degree to which Gottlieb relied on
Sarfaty's symptoms in deciding to terminate her, a jury could reasonably reject the
ignorance defense as inherently incredible.  See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147 (2000) ("In appropriate circumstances, the trier of
fact can reasonably infer from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.").

          3.  A jury could reasonably find that Mothers Work's stated reason
            for terminating Sarfaty  job abandonment  is pretextual.
     
     According to Mothers Work, it terminated Sarfaty because she failed to
return Gottlieb's and Swartz's phone calls regarding her expense account, leading
them to conclude that she had voluntarily abandoned her job.  (Motion at 21-22,
R.45, Vol. 2 at 505-06.)  The record evidence, however, casts this explanation into
doubt, as the district court recognized in refusing to grant summary judgment on
this basis.  (Order at 12, R.65, R.E. at 4, Vol. 9 at 1680.)
     In the first place, a reasonable jury could disbelieve Gottlieb's and Swartz's
claims that they tried to contact Sarfaty.  Despite having agreed to do so, Mothers
Work has produced no telephone records to confirm that the phone calls ever took
place.  (Swartz Dep. of 12/9/05 at 117, R.59 at Ex. S, Vol. 5 at 1072.)  Both
Sarfaty and her mother deny having received any telephone messages from
Gottlieb or Swartz.  (Sarfaty Dep. at 146-47, Ex. 46 at Ex. B, Vol. 3 at 547;
Enrique Sarfaty Dep. at 42, R.46 at Ex. K, Vol. 3 at 600.)  Sarfaty emphatically
testified, "If I knew that someone from Mothers Work was trying to contact me
during that period of time, I would have called them back."  (Sarfaty Dep. at 148,
R.46 at Ex. B, Vol. 3 at 547.)  Williams, moreover, testified that in his experience,
Mother Work would never terminate an employee simply for failing to respond to
telephone messages.  (Williams Dep. of 10/26/05 at 88, R.59 at Ex. X, Vol. 5 at
1118.)  He explained that if an employee did not return phone calls, Mothers Work
would send "a couple of notices via a trackable mail system."  (Id.)  
     Mothers Work has offered evidence of only one letter that it claims to have sent
to Sarfaty  Swartz's letter of October 17 -- and it is not clear that the letter was
actually sent.  (Swartz Letter, R.59 at Ex. V, Vol. 5 at 1095; Swartz Dep. of
12/8/05 at 13, R.46 at Ex. H, Vol. 3 at 583.)  To the contrary, neither Mothers
Work nor Airborne Express (Mothers Work's carrier of choice) has any record of
having sent it and Sarfaty denies having received it.  (Dougherty Dep. at 60, R.59
at Ex. L, Vol. 5 at 1033; Swartz Dep. of 12/9/05 at 153, R.59 at Ex. S, Vol. 5 at
1076; R.46, Sarfaty Dep. at 146-47, R.46 at Ex. B, Vol. 3 at 547.)
     Cohen, the Vice President of Human Resources, further called Mothers Work's
explanation into question when he testified that an employee who was on medical
leave could not logically abandon her job.  (Cohen Dep. at 110-11, R.59 at Ex. W,
Vol. 5 at 1103-04.)  Indeed, although Mothers Work's policy requires that all
terminations be reviewed with the human resources department "in advance of
termination" (Termination Form, R.59 at Ex. R, Vol. 5 at 1058), Cohen testified
that he did not know until the day of his deposition that Sarfaty had been
terminated for job abandonment.  (Cohen Dep. at 74, R.59 at Ex. W, Vol. 5 at
1098.)  Mothers Work's failure to review Sarfaty's purported job abandonment
with Cohen prior to terminating her suggests, again, that its explanation for
termination was pretextual.
     The record is replete with evidence suggesting that, contrary to Mothers
Work's claims, Sarfaty was terminated at least in part because of her disability. 
Saylors testified that Gottlieb was concerned because Sarfaty's subordinates
disliked working with her.  (Saylors Dep. at 40, 42, R.46 at Ex. I, Vol. 3 at 592-
93.)  The subordinates, in turn, singled out Sarfaty's bizarre" behavior as the
reason for their discomfort.  (Wise E-Mail  1-3, 11, R.63 at Ex. Q Bates
MW00416, Vol. 8 at 1499-1500.)  
     Saylors also testified that Gottlieb "was upset about Monica's request for
medical leave" and "did not believe it had merit."  (Saylors Dep. at 40, R.46 at Ex.
I, Vol. 3 at 592.)  Williams likewise testified that he overheard Swartz saying that
he would feel comfortable terminating Sarfaty "even just based upon the fact that
she would be out of the business for the two busiest holidays of the year." 
(Williams Dep. of 2/9/06 at 13, R.63 at Ex. J, Vol. 7 at 1417.)  
     Mothers Work terminated Sarfaty only four days after it granted her twelve
weeks of medical leave.  (Dougherty Letter, R.59 at Ex. P, Vol. 5 at 1052; Swartz
Letter, R.59 at Ex. V, Vol. 5 at 1095.)  This timing suggests a causal link.  See
Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006) (temporal
proximity can be evidence of pretext).  
     From this evidence, a reasonable jury could conclude that Mothers Work
discharged Sarfaty at least in part because of discrimination.  The stated ground
for discharge  job abandonment  finds no support in the record.  A jury could
reasonably conclude that Mothers Work's explanation is pretextual.

                        CONCLUSION
     The district court erred by focusing on Sarfaty's current ability to work rather than
on her substantial limitations in other major life activities.  Additionally, the district
court failed to hold Mothers Work accountable for terminating Sarfaty based on the
symptoms and/or treatment of her mental illness.  A reasonable jury, looking at all of the
evidence and making all reasonable inferences in favor of the EEOC, could find Mothers
Work liable under the ADA.  Because genuine issues of material fact preclude the award
of summary judgment, the EEOC respectfully asks this Court to reverse and remand for
trial.

                    Respectfully submitted,
RONALD S. COOPER
General Counsel
                                   _____________________________
VINCENT J. BLACKWOOD               GAIL S. COLEMAN
Acting Associate General Counsel   Attorney
                                   EQUAL EMPLOYMENT
CAROLYN L. WHEELER                 OPPORTUNITY COMMISSION
Assistant General Counsel          Office of General Counsel
                                   1801 L Street, NW, Room 7034
                                   Washington, DC 20507

                  CERTIFICATE OF SERVICE
                             
     I, Gail S. Coleman, hereby certify that I filed this brief with the Court by sending,
via Federal Express, seven copies together with a computer disk containing a PDF
version of the brief.
     I also certify that I served two copies of this brief, as well as a computer disk
containing a PDF version of the brief, this 1st day of November, 2006, by Federal
Express, to the following counsel of record:

               Edward S. Mazurek
               Sarah E. Pontoski
               MORGAN, LEWIS & BOCKIUS LLP
               1701 Market St.
               Philadelphia, PA 19103

               Randolph P. Tower
               CLEMENS & SPENCER
               112 E. Pecan St., Suite 1500
               San Antonio, TX 78205




                              ______________________________
                              GAIL S. COLEMAN
                              Attorney
                              EQUAL EMPLOYMENT 
                                 OPPORTUNITY COMMISSION
                              Office of General Counsel
                              1801 L Street, NW, Room 7034
                              Washington, DC 20507
                              (202) 663-4055
                              gail.coleman@eeoc.gov

                 CERTIFICATE OF COMPLIANCE
                             
     This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)
because it contains 13,939 words, excluding the parts of the brief exempted by Fed. R.
App. P. 32(a)(7)(B).
     This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Microsoft Word 2003 with 14 point Times New
Roman.



                              ______________________________
                              GAIL S. COLEMAN
                              Attorney
                              EQUAL EMPLOYMENT 
                                 OPPORTUNITY COMMISSION
                              Office of General Counsel
                              1801 L Street, NW, Room 7034
                              Washington, DC 20507
                              (202) 663-4055
                              gail.coleman@eeoc.gov


***********************************************************************
<<FOOTNOTES>>

<1> Available at:  http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=2873159&dopt=Citation.

<2> Available at http://apt.rcpsych.org/cgi/content./full/6/5/65.