Equal Employment Opportunity Commission C. Town & Country Toyota, Inc.
 00-2167


 IN THE UNITED STATES COURT OF APPEALS
 FOR THE FOURTH CIRCUIT


 No. 00-2167


 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

  Plaintiff-Appellant,

 v.

 TOWN & COUNTRY TOYOTA, INC.,

  Defendant-Appellee.


 On Appeal from the United States District Court
 for the Western District of North Carolina


 REPLY BRIEF OF THE EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION


         C. GREGORY STEWART
         General Counsel

         PHILIP B. SKLOVER
         Associate General Counsel

         LORRAINE C. DAVIS
         Assistant General Counsel

         ROBERT J. GREGORY
         Senior Attorney

         EQUAL EMPLOYMENT OPPORTUNITY
            COMMISSION
         1801 L Street, N.W.
         Washington, D.C. 20507
         (202) 663-4059

 INTRODUCTION

  In its opening brief, the Commission argued that the district  court
  erred in granting summary judgment on the Commission's claim of
  disability discrimination under the Americans with Disabilities Act
  ("ADA").  The Commission argued that it presented sufficient evidence to
  support a finding of a covered disability with respect to the charging
  party, Brian Mickles, under either the "regarded as" or "record of" prong
  of the ADA's definition of disability.  See 42 U.S.C.  12102(2)(B)-(C).
  The Commission urged that it could satisfy the elements of its prima
  facie case.  The Commission challenged the contention of the defendant,
  Town & Country Toyota, Inc. ("T&C"), that it discharged Mickles because
  of a lack of sales skills, pointing out that this explanation was
  entirely post-hoc.
  T&C begins its Appellee's brief with a recitation of the facts bearing
  on Mickles' physical condition, stressing that Mickles can "shoot pool,
  play computer games, score 130 in a game of bowling, lift weights three
  times per week, and do a large number of push-ups."  T&C Brief at 6.
  These facts are irrelevant.  The Commission is not arguing in this case
  that Mickles has an "actual" disability within the meaning of the ADA.
  See 42 U.S.C.  12102(2)(A).  The Commission invokes coverage under
  the ADA's "regarded as" and "record of" disability categories, which
  seek to "combat the effects of erroneous but nevertheless prevalent
  perceptions" with respect to individuals who, "'at present have
  no actual incapacity.'" School Bd. of Nassau County v. Arline, 480
  U.S. 273, 279 (1987).  Elsewhere in its brief, T&C offers a number of
  arguments in support of the district court judgment, all of which are
  addressed below.  This Court should reject T&C's arguments and reverse
  the district court's grant of summary judgment.ARGUMENT
 The Commission's Evidence Is Sufficient To Support A Finding Of Coverage
 Under The "Record Of" Prong Of The ADA's Definition Of Disability

  T&C first argues that the Commission cannot establish coverage
  under the "record of" prong of the ADA's definition of disability.
  The evidence on this point is as follows.  Mickles was involved in a
  serious car accident in March 1995.  J.A. at 122.  That accident left
  Mickles partially paralyzed.  Id. at 125, 128.  The initial diagnosis
  was that Mickles would never walk again.  Id. at 126. Mickles underwent
  bone graft surgery on his spinal chord and remained hospitalized for
  nearly two months.  Id. at 221-23, 227.  Eventually, Mickles was able
  to walk, with the assistance of a cane, but only after some 21 months
  of rehabilitation.  Id. at 130-31.  Plainly, this evidence supports
  a finding that Mickles had a physical impairment that, at one point in
  time, substantially limited Mickles in one or more major life activities.
  See EEOC Brief at 24 (citing cases).<1>
  T&C does not dispute the evidence of Mickles' disability history.
  Instead, T&C argues that the evidence should be disregarded because T&C
  was not aware of the full extent of Mickles' record when it terminated
  his employment.  There is no dispute that Mickles disclosed to Koenig,
  a week or so into his employment, that he had "broken" his back in a
  serious car accident.  J.A. at 297.  T&C acknowledges that, by the
  time Koenig terminated Mickles' employment, Koenig was aware that
  Mickles "use[d] to be paralyzed" and was now able to walk, with some
  residual limitations, as a result of a medical procedure of some kind.
  T&C Brief at 23 (citing J.A. at 357-60).  In T&C's view, however,
  it is not enough that an employer have general knowledge of the facts
  supporting the underlying record.  The employer must know all of the
  details of the prior record, including "the nature and extent of the
  impairment, the duration or expected duration of the impairment, or the
  actual or expected long term impact of the impairment."  T&C Brief at 23.
  T&C claims that because it did not have in its possession "Mickles'
  hospital and treatment records from 1995 and 1996," id. at 24, the
  Commission cannot invoke coverage under the "record of" prong.
  There are two problems with T&C's argument.  First, the argument
  impermissibly conflates the issues of coverage and causation.  An
  individual is covered under the "record of" category if the individual
  has a record of "a physical or mental impairment that substantially
  limits one or more of the major life activities of such individual."
  42 U.S.C.  12102(2)(A)-(B).  There is no requirement, for coverage
  purposes, that the employer be aware of the record.  By its plain terms,
  the statute requires only that the individual have the record.  See Pace
  v. Paris Maint. Co., 107 F. Supp. 2d 251, 261 (S.D.N.Y. 2000) (holding
  that "establishment of a disability [under the 'record of' prong]
  does not require a showing of knowledge on the part of the employer").
  Of course, to prove a claim of discrimination under the ADA, a
  plaintiff must show that the discrimination occurred "because of" the
  individual's disability.  42 U.S.C.  12112(a).  In a "record  of" case,
  this means that the plaintiff must show that the employer acted with
  some knowledge of the "record" (or its residual manifestations) and,
  in that sense, "relied" upon the record.  Interpretive Guidance on
  Title I of the Americans with Disabilities Act, 29 C.F.R. 1630 App.,
   1630.2(k).<2>  ADA coverage, however, does not equate with an ADA
  violation.  An individual, for example, may be completely without vision.
  The employer may reject that individual for a job, based on a review of
  the individual's resume, without knowledge of the vision impairment.
  In such a case, there would be no claim of disability discrimination
  under the ADA.  The individual, nonetheless, would have a covered
  disability under the ADA.
  The second problem with T&C's argument is that it imposes a knowledge
  requirement that is too exacting, even assuming that such a requirement
  can be placed into the coverage box.  The purpose of the "record of"
  category is "to ensure that people are not discriminated against because
  of a history of disability."  Interpretive Guidance, 29 C.F.R. App.,
   1630.2(k).  Obviously, there is no danger of an individual being
  discriminated against because of a history of disability if the employer
  has no knowledge of that history.  It is equally true, however, that
  the employer can have knowledge of a disability history without knowing
  the specific details of that history.
  This point is made clear in the lead Supreme Court case on the "record
  of" category, School Bd. of Nassau County v. Arline, 480 U.S. 273
  (1987).  In that case, it was undisputed that the plaintiff had a
  record of a substantially limiting impairment, based on her condition
  of tuberculosis.  Id. at 281.  It was equally clear that the employer had
  taken action against the plaintiff because of a "continued" recurrence of
  the tuberculosis, a recurrence that was not itself substantially limiting
  (in contrast to a prior manifestation of the condition, which had been
  substantially limiting).  Id. at 276-77.  There was no indication that
  the employer knew anything about the details of the underlying history
  giving rise to the record of a substantially limiting impairment.
  Nonetheless, the Supreme Court construed the "record of" provision
  in the Rehabilitation Act of 1973, the ADA's predecessor statute,
  as supporting the claim, stressing that, by acting upon the residual
  manifestations of the record (of which the employer was generally
  aware), the employer had, in effect, acted upon the record itself.
  Id. at 281-86.  Arline repudiates the notion that a viable "record of"
  claim requires the type of detailed knowledge of the disability history
  demanded by T&C.
  The ADA case law cited by T&C (T&C Brief at 21) is not to the contrary.
  Three of the cases cited by T&C do not even address the "knowledge"
  issue.  The cases merely hold that the record invoked by the plaintiff
  must establish the existence of a substantially limiting impairment,
  a point on which there is no controversy.  See Weber v. Strippit,
  Inc., 186 F.3d 907, 915 (8th Cir. 1999); Evans v. Pemco Aeroplex, Inc.,
  1998 WL 1048470, **9-10 (N.D. Ala. Feb. 23, 1998); Kalekiristos v. CTF
  Hotel Mgmt Corp., 958 F. Supp. 641, 658 (D.D.C.), aff'd, 132 F.3d 1481
  (D.C. Cir. 1997).  The other case cited by T&C does address the knowledge
  issue but rejects the plaintiff's claim on fact-specific grounds.
  See DeMar v. Car-Freshener Corp., 49 F. Supp. 2d 84, 93 (N.D.N.Y. 1999)
  (knowledge could not be imputed to the employer where the plaintiff had
  never discussed his condition with the employer and there was no evidence
  that the employer was otherwise aware of the plaintiff's history of
  "learning difficulties").  None of the cases cited by T&C hold that an
  employer must be in actual possession of medical records  demonstrating
  the existence of a substantially limiting impairment.  It is enough that
  there is such a history of a substantially limiting impairment and the
  employer has some knowledge, albeit imperfect, of that history.
  Of course, for there to be a viable "record of" claim, there must be
  some reasonable nexus between what the employer knows and  the history
  of the substantially limiting impairment.  That is, the employer cannot
  be held accountable for its actions if what the employer knows does not
  put the employer on reasonable notice of the possible existence of a
  substantially limiting impairment.  In this case, T&C knew, at a minimum,
  that Mickles had once been "paralyzed" as a result of a serious accident
  and had recovered from a "broken" back through a medical procedure of
  some kind.  T&C also had knowledge of the residual limitations imposed
  by that history, of which it was generally aware.  That is enough to
  provide the requisite knowledge for a "record of" claim.
  If accepted, T&C's argument would render the protections of the statute,
  in "record of" cases, a virtual nullity.  An employer is rarely going
  to be in possession of the complete disability record of an employee
  or applicant.  Records of that kind are not easily obtained, as T&C
  itself observes.  T&C Brief at 25 n.5.  An employer should not be held
  liable for what it does not know but nor should it be let off the hook
  where, as here, it has knowledge of facts that are reasonably linked
  to the existence of a disability record that is of a substantially
  limiting nature.  Although not relevant to statutory coverage,<3>
  the evidence supports a finding that T&C had the requisite knowledge
  of Mickles' disability record.
 The Commission's Evidence Is Sufficient To Support A Finding Of Coverage
 Under The "Regarded As" Prong Of The ADA's Definition Of Disability

  T&C next argues that the Commission cannot establish coverage
  under the "regarded as" prong of the ADA's definition of disability.
  T&C's argument, on this point, is premised on two contentions.  First,
  T&C contends that the standards applicable to "actual" disability cases
  also apply to "regarded as" cases, in the sense that the employer must
  regard the individual as substantially limited in one or more major
  life activities.  T&C Brief at 31. Thus, in this case, the Commission
  must show that T&C regarded Mickles as substantially limited in the
  major life activity of walking. Second, T&C contends that an individual
  is substantially limited in the major life activity of walking only if
  the individual's "'legs are paralyzed' or he 'can only walk for very
  brief periods of time.'" Id. at 32.  According to T&C, the Commission's
  regarded as claim fails because the evidence does not show that T&C
  regarded Mickles as "paralyzed" or able to walk only "for very brief
  periods of time."  Id. at 34.
  T&C is correct on its first point -- the ADA's "regarded as" category
  piggybacks on the language of the "actual" disability category, meaning
  that an employer must regard the individual as having "a physical
  or mental impairment that substantially limits one or more of the
  major life activities of such individual."  42 U.S.C.  12102(A)-(C).
  The problem with T&C's argument is that it too narrowly defines the
  circumstances under which an individual is substantially limited in
  the major life activity of walking.
  In advancing the argument that an individual is substantially limited
  in walking only where the individual's "legs are paralyzed" or the
  individual "can only walk for very brief periods of time,"  T&C
  relies almost entirely on the Commission's Interpretive Guidance.
  See T&C Brief at 32.  T&C has misread the Guidance.  The Guidance
  states that an "impairment that prevents an individual from performing
  a major life activity substantially limits that major life activity."
  Interpretive Guidance, 29 C.F.R. App.,  1630.2(j).  As an "example"
  of that principle, the Guidance cites the case of "an individual
  whose legs are paralyzed."  Id.  Later, the Guidance states that "an
  impairment is substantially limiting if it significantly restricts the
  duration, manner or condition under which an individual can perform a
  particular major life activity as compared to the average person."  Id.
  As an "example" of that principle, the Guidance cites the case of "an
  individual who, because of an impairment, can only walk for very brief
  periods of time."  Id.  The Guidance nowhere states (or even implies)
  that these examples are exclusive.
  Such a view, in fact, would be inconsistent with the Commission's
  implementing regulations, which define the statutory term "substantially
  limits."  Under that definition, an impairment is substantially limiting
  if, as a result of that impairment, an individual is "[s]ignificantly
  restricted as to the condition, manner or duration under which [the]
  individual 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)(ii).  This definition makes clear that, to
  establish coverage under the ADA, an individual need not demonstrate
  an utter inability to perform the affected major life activity.
  Nor must the individual demonstrate a durational limitation on the
  performance of the major life activity.  An impairment is substantially
  limiting if it significantly restricts the "duration" or the "manner" or
  "condition" under which the individual performs the major life activity.
  In the case of the major life activity of walking, this means that an
  individual can establish a substantially limiting impairment by pointing
  to significant restrictions on the manner or condition under which the
  individual walks.  The individual need not show that he is "paralyzed"
  or able to walk only "for very brief periods of time."  T&C Brief at 34.
  The unreasonableness of T&C's view is confirmed by a simple example --
  an individual with a missing lower limb.  Such an individual may be
  able to walk with the assistance of a prosthetic device (or crutches).
  The individual may even be able to walk great distances, albeit with
  some difficulty.  Yet, no one would seriously argue that the individual
  is precluded from establishing a covered disability under the ADA.
  Indeed, this would appear to be a textbook case of an impairment that
  significantly restricts the "manner" or "condition" under which the
  individual performs the major life activity of walking.  T&C's view,
  if accepted, would place such an individual outside the protections
  of the ADA.<4>   Given the proper understanding of the "substantially
  limits" requirement, as applied in "walking" cases, it is clear that
  the evidence in this case meets the standard for a "regarded as"
  walking case.  This is not a case in which the court must infer the
  impermissible perception from ambiguous statements or context.  It is
  a case in which the employer's decision-maker, Dennis Koenig,  made
  a startling number of statements directly probative of the requisite
  perception.  Koenig believed that Mickles "obviously
 . . . had a disability" because "[h]e couldn't move around like other
 people could."  J.A. at 277.  Koenig "made a point" of sharing these
 concerns with Mickles during Mickles' employment with T&C.  Id. at 332.
 When he terminated Mickles' employment, Koenig remarked, "son, I've been
 looking at you for the last two weeks, and when I look at you walking,
 selling these cars, you look like [you're] in agony.  Son, you need
 to be on disability."  Id. at 190.  In his deposition in this case,
 Koenig opined that Mickles was "considerably slower than a person with
 an ordinary walking ability" and "[o]bviously, . . . didn't have the
 mobility everybody else did."  Id. at 277-78.  Koenig offered the view
 that Mickles "has a problem walking.  You've seen him.  Anything that he
 had to do to walk is a problem.  I mean, to walk from here to the men's
 room."  Id. at 306.  In Koenig's view, "you didn't have to watch [Mickles]
 walk 100 feet to figure out that he had a disability."  Id. at 278.
 Koenig admired Mickles for taking the "initiative to try and get a job"
 but questioned why Mickles would "want to go through that" insomuch as
 "[o]bviously a lot of times he was in pain."  Id. at 284.  Koenig observed
 that "I wouldn't want to be his age and have to bear that disability
 the rest of my life given what I saw him walk around like."  Id. at 311.
 Koenig stated that there were times that it made "even me hurt watching
 [Mickles] move around."  Id. at 284.  In fact, according to Koenig,
 it made "anybody kind of feel [a] little bad just watching [Mickles] get
 around."  Id. at 61.  Taken as a whole, these statements support a finding
 that T&C regarded Mickles as "significantly restricted" in the "manner" or
 "condition" under which he performed the major life activity of walking.
  T&C argues that Koenig's "use of the term 'disability' during his
  deposition" should be discounted because, to satisfy the "regarded
  as" prong, "'[i]t is not enough . . . that the employer regarded
  [an] individual as somehow disabled.'" T&C Brief at 36.  We agree
  that the use of the terms "disabled" or "disability" must be viewed
  in the relevant context.  Compare McInnis v. Alamo Community College
  Dist., 207 F.3d 276, 281 (5th Cir. 2000) (teacher with slurred speech
  regarded as substantially limited in speaking where evidence showed
  that decision-makers referred to his condition as a disability)
  with Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 310-11 (3d
  Cir. 1999) (physician's statement that plaintiff was "not disabled" not
  determinative on the issue of whether plaintiff had a "disability" within
  the meaning of the ADA).  In this case, Koenig's reference to Mickles'
  "disability" was not made in isolation, but in the context of multiple
  statements concerning Koenig's perceptions of the limitations imposed
  by Mickles' condition.  Statements such as, "you didn't have to watch
  [Mickles] walk 100 feet to figure out that he had a disability" are
  obviously probative on the issue of whether Koenig regarded Mickles as
  substantially limited in walking.
  T&C also argues that the Commission's "regarded as" proof is deflated
  by the fact that Koenig could not possibly have regarded Mickles
  as disabled, having "hired Mickles into a position that required a
  substantial amount of walking on the sales lot."  T&C Brief at 39.
  This is a close cousin to T&C's "same hirer/same firer" argument,
  which is addressed in more detail in our opening brief (at 21-22, 38)
  and at infra pp. 22-24.  Suffice it to say here that this argument
  fails for the simple reason that, when Koenig hired Mickles, he knew
  only that Mickles "walked slowly and with a limp."  T&C Brief at 38.
  His perceptions concerning Mickles' condition, e.g., Mickles appeared
  to be in "agony" when he walked, Mickles was "[o]bviously a lot of
  times . . . in pain," "you didn't have to watch [Mickles] walk 100 feet
  to figure out that he had a disability," were formed as a result of
  Koenig's subsequent interactions with Mickles' on-the-job.  Indeed, when
  he terminated Mickles' employment, Koenig explicitly tied his perception
  that Mickles was in "agony" and ought to be "on disability" to the fact
  that Koenig had been "looking" at Mickles "for the last two weeks."
  Id. at 190.  It is not at all anomalous that Koenig would have hired
  Mickles into a position that required a substantial amount of walking
  and then fired him a short time later on the basis of perceptions that
  arose after the date of hiring.
 The Commission's Evidence Is Sufficient To Support A Finding That, At
 The Time Of His Discharge, Mickles Was Performing His Job At A Level
 That Met His Employer's Legitimate Expectations

  Next, T&C argues that the Commission cannot establish the qualifications
  element of its prima facie case.  T&C cites a litany of supposed
  deficiencies in Mickles' "skills and abilities" as a salesperson, urging
  that the "deposition testimony of Dennis Koenig and the Affidavit of
  Stewart Abbott make clear that Mickles was not meeting the legitimate,
  nondiscriminatory performance expectations of Town & Country at the
  time of his discharge."  T&C Brief at 40.
  There are several problems with T&C's argument on this point.  First,
  there is no support, in Mickles' employment record, for the assertions
  made in the "deposition testimony" and "Affidavit" referenced by T&C.
  There are no written documents, prepared at the time of Mickles'
  employment, to indicate that Mickles was not performing his job
  satisfactorily.  Nor was Mickles the subject of any verbal criticism.
  Mickles testified that he was never told by Koenig (or any other manager)
  that he was performing his job in an unsatisfactory fashion.  J.A. at
  186-87.  Koenig admitted in his deposition that he never "formally"
  warned Mickles that "his employment was in jeopardy because of his sales
  techniques or performance."  Id. at 274-75.  Koenig also admitted that no
  one ever complained to him, at the time, about Koenig's job performance.
  Id. at 333.
  A second problem with T&C's argument is that the evidence on which it
  relies is disputed and, in some cases, contradicted by Koenig's own
  contemporaneous statements.  T&C states that "[b]oth Koenig and Abbott
  were required to spend excessive amounts of time with Mickles to help
  him close sales."  T&C Brief at 41.  Yet, Mickles testified that he
  needed help on only one occasion, when he had a very difficult customer
  and several things went wrong with the car.  J.A. at 162-64, 172-85.
  On that one occasion, Koenig stepped in to assist Mickles; when the
  sale was completed, Koenig made a humorous comment about the customer,
  and Mickles and Koenig shared a laugh.  Id. at 180-81.  T&C also states
  that "Town & Country officials believed that Mickles lacked effective
  communication skills and did not have a good knowledge of the products,
  warranties and financing options."  T&C Brief at 41.  Yet, when Koenig
  terminated Mickles' employment, he specifically told Mickles, "I'm
  not saying you're not a good salesman."  J.A. at 190.  Koenig later
  told another official that Mickles had the "resources" to "make a
  good salesperson."  Id. at 356.  In its official position statement,
  T&C stated that "Mr. Mickles' selling skills seemed satisfactory."
  Id. at 351.
  A third problem with T&C's argument is that the evidence on which it
  relies is entirely post-hoc.  The supposed deficiencies in Mickles'
  sales skills were not mentioned during his employment with T&C.
  They were not mentioned by Koenig at the time of the termination,
  despite the fact that Koenig conducted a termination conference with
  Mickles and provided him with an explanation for the discharge, i.e.,
  "you look like [you're] in agony" and ought "to be on disability."
  J.A. at 190.  Nor were they set forth in T&C's official position
  statement.  The supposed deficiencies did not surface until January
  1998, several months after Mickles' termination, when Koenig prepared an
  affidavit as part of the Commission's investigation of Mickles' charge.
  See T&C Brief at 41-42.<5>
  Finally, the evidence cited by T&C takes the case beyond the minimal
  objective evidence of job performance relevant to the prima facie
  showing of qualifications.  See EEOC Brief at 28-29 (citing cases).
  T&C's contention that the ADA is somehow different on this point
  because "only 'qualified individuals' with disabilities are entitled to
  protection under the ADA" (T&C Brief at 42) ignores the fact that this
  is a "typical discharge case brought under the ADA" and is thus analyzed
  under "the now familiar, burden-shifting framework" established under
  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  See Ennis
  v. National Ass'n of Business and Educ. Radio, Inc., 53 F.3d 55,
  57-58 (4th Cir. 1995).  No doubt, an ADA claimant must demonstrate
  his job qualifications.  The question is how the claimant does so.
  In a "typical discharge case," where the employer's motivation is at
  issue (as in this case),<6> the plaintiff proves his qualifications
  the same way any discrimination claimant proves his qualifications --
  by pointing to evidence that he was meeting his employer's "legitimate
  expectations."  Id.  Here, the evidence shows that Mickles received
  training to be a salesperson, that he worked for T&C for over a
  month, that he sold several cars, that he was never criticized for
  his performance, and that he did not receive any warnings that his
  performance fell below T&C's expectations.  See EEOC Brief at 27.
  This evidence is sufficient to satisfy the qualifications element of
  the prima facie case.
 The Commission's Evidence Is Sufficient To Support A Finding That Mickles'
 Discharge Occurred Under Circumstances That Raise a Reasonable Inference
 Of Unlawful Discrimination

  Turning to the final element of the prima facie case, T&C asserts
  that the Commission's claim fails because the Commission cannot show
  that Mickles' discharge "'occurred under circumstances that raise a
  reasonable inference of unlawful discrimination.'" T&C Brief at 44
  (quoting Ennis, 53 F.3d at 58).  T&C specifically claims that there is
  insufficient evidence to support a finding that disability "'played a
  motivating role in the employment decision.'"  T&C Brief at 44.
  T&C's arguments, on this point, are largely a rehash of its prior
  arguments.  T&C, for example, notes that the Commission "relies on
  several statements allegedly made by Koenig during the termination
  conference and during his deposition."  Id.  T&C contends that "[j]ust
  as Koenig's statements are insufficient to support coverage under
  the 'regarded as' [prong] of the ADA's definition of disability,
  they are also insufficient to support a finding that Town & Country
  discharged Mickles under circumstances that raise a reasonable
  inference of unlawful discrimination."  Id. at 45.  In fact, there is
  overwhelming evidence that Koenig fired Mickles because he regarded
  Mickles as disabled.  At the termination conference, Koenig remarked,
  "son, I've been looking at you for the last two weeks, and when I look
  at you walking, selling these cars, you look like [you're] in agony.
  Son, you need to be on disability."  J.A. at 190.  In its position
  statement, T&C confirmed that, in terminating Mickles' employment,
  Koenig made the comment "that Mr. Mickles appeared to be in pain and
  have difficulty in walking."  Id. at 351.  T&C further confirmed that
  Koenig "asked that [Mickles] consider disability if the problem was
  that severe."  Id.  In his deposition, Koenig removed any doubt with
  respect to his perceptions of Mickles' condition.  "If this evidence
  is sufficient to support coverage under the 'regarded as' prong of the
  ADA's definition of disability, it is certainly sufficient to support
  a finding that T&C discharged Mickles under circumstances that 'raise
  a reasonable inference of unlawful discrimination.'" EEOC Brief at 30.
  In a similar vein, T&C argues that the Commission cannot show that "Town
  & Country's decision to discharge Mickles was motivated by a 'record of'
  disability under the ADA" because "Town & Country was not even aware
  of a 'record of' a disability at the time of the discharge."  T&C
  Brief at 47.  As discussed above (supra pp. 5-9), the evidence shows
  that T&C had the requisite knowledge of Mickles' disability record.
  Although it is not entirely clear that Koenig relied upon that record
  as such, as opposed to his perceptions of Mickles' physical limitations,
  in terminating Mickles' employment, there is enough evidence to tie what
  Koenig did know to the underlying record to withstand summary judgment
  on this issue.  See  EEOC Brief at 31-33.
  Finally, T&C argues that any claim that Koenig's decision to terminate
  Mickles was motivated by disability is "significantly undermined"
  by the fact that "Koenig, the person who made the decision to hire
  Mickles on July 25, 1997, was the person who made the decision to
  terminate Mickles' employment on September 5, 1997."  T&C Brief at 46.
  This argument fails for the reasons set forth in the Commission's opening
  brief at 21-22, 38, at supra pp.  15-16 and infra p. 24.  Koenig knew
  very little about Mickles' condition at the time Koenig hired Mickles.
  His perceptions were formed after the date of hire, when he observed
  Mickles on-the-job and first learned of his disability history.  T&C is
  correct that "this Court has previously held that employers who take
  a positive employment action on behalf of an employee in a protected
  category are seldom credible targets for charges of discriminatory
  discharge."  T&C Brief at 46.  It has not done so, however, where,
  as here, the person responsible for terminating the claimant hired
  the claimant without knowledge of the relevant facts bearing on the
  claimant's disability status.
 The Commission's Evidence Is Sufficient To Support A Finding That T&C's
 Proffered Explanation For The Discharge Is A Pretext For Discrimination

  In addition to arguing that the Commission cannot establish a
  prima facie case, T&C also argues that the Commission "has not
  presented sufficient evidence to overcome the articulated legitimate,
  nondiscriminatory reasons for Town & Country's actions."  T&C Brief at
  47.  T&C's arguments, on this point, are largely a reprise of arguments
  it makes at the prima facie stage.  T&C, for example, invokes once again
  the "powerful inference against a finding of intentional discrimination
  . . . where the person responsible for hiring an individual in a
  protected category is the same person who terminates the individual
  within a relatively short time span following the hiring."  Id. at 48.
  At the risk of redundancy, the "same hirer/same firer" rule simply
  does not apply in this case.  Contrary to T&C's contention, Koenig
  did not hire Mickles "with full knowledge of the manifestations of his
  impairment."  Id. at 49.  Koenig hired Mickles with little knowledge
  of Mickles' condition and fired him based on perceptions formed during
  Mickles' employment with T&C.
  We mention one additional point here.  As T&C concedes, "the powerful
  'same actor inference' may be rebutted with countervailing evidence
  of pretext."  Id. at 50.  Such evidence exists in this case.  Indeed,
  this is virtually a direct evidence case, given Koenig's statements
  during his termination conference with Mickles.  Koenig admitted that his
  decision to terminate Mickles was based on looking at Mickles "walking,
  selling cars, . . . [during] the last two weeks" of his employment.
  J.A. at 190.  Koenig concluded, from this post-hiring experience,
  that Mickles was in "agony," that the "black top" was not a "career
  thing" for Mickles, and that Mickles needed "to be on disability."  Id.
  Under these circumstances, Koenig can indeed "reasonably be a credible
  target of a charge of pretextual firing."  T&C Brief at 50.
  This is not to say that Koenig could not have lawfully terminated Mickles
  on the basis of physical limitations imposed by Mickles' condition (e.g.,
  limited mobility), assuming that any such limitations actually interfered
  with Mickles' ability to do the job.  There is no evidence here, however,
  that they did.  Indeed, T&C makes no claim in this litigation that
  it terminated Mickles because of any performance-based deficiency
  associated with the residual limitations of Mickles' paralysis.
  Instead, T&C offers garden-variety performance-based criticisms,
  criticisms that were not raised at the time of the events in question.
  As the Commission stated in its opening brief, "there is a complete
  disconnect between T&C's proffered explanation and the [contemporaneous]
  statements of its own decision-maker, Koenig."  EEOC Brief at 36 n.6.
  T&C urges that "Koenig has not altered the stated reasons for his
  decision to discharge Mickles during this litigation."  T&C Brief at 51.
  This misses the point.  The performance-based deficiencies now invoked
  by T&C did not surface until January 1998, several months after Mickles'
  employment with T&C.  They were not raised during Mickles' employment
  with T&C.  They were not raised by Koenig during his termination
  conference with Mickles.  Indeed, during that conference, Koenig
  told Mickles, "I'm not saying  you're not a good salesman."  J.A. at
  190.  Koenig may have maintained a consistent position "during this
  litigation."  T&C Brief at 51.  That position, however, is inconsistent
  with statements that he made at the time of the termination.
  T&C's performance-based explanation is also inconsistent with its
  own position statement, filed in response to Mickles' EEOC charge.
  The position statement says nothing about deficiencies in sales skills.
  Instead, it says that "Mr. Mickles selling skills seemed satisfactory."
  J.A. at 351.  T&C's argument that the position statement can be
  ignored because it "was prepared by Barry Davis, who was not involved
  in the termination decision" (T&C Brief at 52) is preposterous.
  The position statement purports to be signed by Koenig.  J.A. at 352.
  Koenig admits that the position statement was read to him over the
  phone and that he signed off on its contents.  Id. at 271-72, 345.
  The position statement, moreover, essentially parrots what Koenig said
  to Mickles during his termination conference.  Plainly, Koenig was
  the man behind the position statement.  That Koenig changed his story
  in a later affidavit filed with the Commission, see T&C Brief at 51,
  only enhances the Commission's claim of pretext.
  T&C correctly observes that Mickles' employment with T&C was "very
  brief."  T&C Brief at 53.  While that might explain "the absence
  of written documents reflecting dissatisfaction with Mickles' job
  performance," id., it does not explain why Mickles was given no verbal
  warnings about his performance, why the performance-based deficiencies
  now invoked by T&C were not raised during Mickles' employment, or why
  those deficiencies were not offered as reasons for the termination
  when Koenig explained to Mickles why he was being let go.  Nor does it
  explain the shifts in T&C's position, from "I'm not saying you're not a
  good salesman" [termination conference] and "Mr. Mickles' selling skills
  seemed satisfactory" [position statement] to Mickles "lacked basic sales
  skills and abilities" [litigation position].  There is ample evidence of
  pretext in this case and ample evidence, from Koenig's own statements,
  that Mickles' termination was disability-based.
 The District Court's Decision Regarding Mickles' Failure To Mitigate
 His Damages Should Not Be Affirmed

  Finally, T&C argues that this Court should affirm the district court's
  ruling "that any back pay damages would be de minimis because Mickles
  has unreasonably failed to mitigate any alleged damages."  T&C Brief
  at 54.  This Court should not offer an advisory opinion on this issue.
  If this Court agrees with T&C that the district court properly disposed
  of this case on liability, the relief issue raised by T&C is moot.  If,
  on the other hand, this Court agrees with the Commission that summary
  judgment was not properly granted on liability, the relief issue is
  premature.  See EEOC Brief at 38 n.7.  Back pay is only one item of
  relief sought by the Commission.  The Commission also seeks injunctive
  relief, as well as compensatory and punitive damages.  See J.A. at 8-10.
  The back pay issue raised by T&C is not outcome-determinative, even at
  the relief stage of the case.
  In any event, even assuming that the issue is properly before this
  Court, the district court's ruling should not be affirmed.  The evidence
  shows that, shortly after being terminated from his position with T&C,
  Mickles sought employment at Metrolina Dodge.  It is true, as T&C
  argues, that Mickles "[b]asically" had a job at Metrolina Dodge and
  "voluntarily chose to leave that job."  J.A. at 206.  Mickles, however,
  provided an explanation for that decision:  "It was just emotionally and
  mentally I was scared of going through the same thing I went through
  at Town & Country and I didn't want to hear it again."  Id. at 207.
  This explanation must be accepted as true at this stage of the case.
  The explanation, moreover, defeats any argument that Mickles' mitigation
  efforts were unreasonable as a matter of law.  See Martin v. Cavalier
  Hotel Corp., 48 F.3d 1343, 1349, 1358-59 (4th Cir. 1995) (mitigation
  efforts not deficient as a matter of law where claimant did not seek
  alternative employment due to emotional distress caused by employer's
  unlawful conduct); EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818 n.4 (7th
  Cir. 1990) (same); Maturo v. National Graphics, Inc., 722 F. Supp. 916,
  928 (D. Conn. 1989) (same).  If the Court reaches the issue, it should
  reject T&C's argument that "any award of back pay to Mickles must be
  cut off as of September 8, 1997."<7> T&C Brief at 55.

 CONCLUSION

  The decision of the district court should be reversed.
         Respectfully Submitted,
         C. GREGORY STEWART
         General Counsel

         PHILIP B. SKLOVER
         Associate General Counsel

         LORRAINE C. DAVIS
         Assistant General Counsel




         ROBERT J. GREGORY
         Senior Attorney

         EQUAL EMPLOYMENT OPPORTUNITY
            COMMISSION
         1801 L Street, N.W.
         Washington, D.C. 20507
 December 14, 2000               (202) 663-4059

 1  Contrary to T&C's assertion (T&C Brief at 27), the Commission is
 not arguing that "evidence of hospitalization is sufficient [by itself]
 to establish a 'record of' disability under the ADA."  Mickles was not
 simply hospitalized.  He was left partially paralyzed for a significant
 period of time, during which he was unable to carry out a number of
 daily activities.  See EEOC Brief at 4.  For nearly 21 months, Mickles
 was either wheelchair bound or unable to walk without the assistance of
 crutches.

 2  T&C misreads the Commission's Interpretive Guidance in arguing that the
 Guidance provides support for its position in this case.  See T&C Brief
 at 21-24.  The Guidance contains the following sentence: "This part of the
 definition is satisfied if a record relied on by an employer indicates
 that the individual has or had a substantially limiting impairment."
 Interpretive Guidance, 29 C.F.R.  1630 App.,  1630.2(k).  This sentence
 assumes the obvious point that, in most "record of" cases, there will
 be a "record relied upon by the employer."  It does not state, however,
 that a claimant must demonstrate such reliance for coverage purposes.
 Nor does it state that the "record" relied upon must contain the level of
 detail demanded by T&C.  Of course, if there is any dispute concerning
 the interpretation of the Guidance, the Commission's interpretation of
 its own Guidance is entitled to substantial deference.  See, e.g., Auer
 v. Robbins, 519 U.S. 452, 461 (1997) (agency's interpretation of its own
 regulations is "controlling unless 'plainly erroneous or inconsistent
 with the regulation'").

 3  The Commission agrees with the analysis of the district court in Pace
 v. Paris Maint. Co., 107 F. Supp. 2d 251.  In that case, the court ruled
 that establishment of a disability under the "record of" prong "does not
 require a showing of knowledge on the part of the employer."  Id. at 261.
 The court also ruled, however, that a "plaintiff seeking to establish
 a prima facie case must still demonstrate knowledge on the part of the
 employer" because a "plaintiff must show that he or she suffered an
 adverse employment action because of a disability."  Id. at 261 n.2.
 As explained in the Commission's opening brief (at pp. 31-33), the
 Commission can make such a showing in this case.

 4  Not surprisingly, the case law does not support T&C's niggardly view
 of statutory coverage.  See, e.g., EEOC v. Sears, Roebuck & Co., 2000 WL
 1672612, **1-5 (7th Cir. Nov. 8, 2000) (jury-submissible issue on whether
 the plaintiff was substantially limited in the major life activity of
 walking despite evidence that the plaintiff could walk "short distances"
 without difficulty); Belk v. Southwestern Bell Tel. Co., 194 F.3d 946,
 950 (8th Cir. 1999) (individual with a leg brace was substantially
 limited in the major life activity of walking because the "full range
 of motion in his leg [was] limited by the brace, and his gait [was]
 hampered by a pronounced limp").  Moreno v. Grand Victoria Casino, 94
 F. Supp. 2d 883, 898-99 (N.D. Ill. 2000) (issue of fact as to whether
 plaintiff was substantially limited in walking where plaintiff walked with
 a "normal gait" but experienced severe pain when walking for "prolonged"
 periods); Driesse v. Florida Bd. of Regents, 26 F. Supp. 2d 1328, 1335
 (M.D. Fla. 1998) (issue of fact as to whether plaintiff was substantially
 limited in walking where the plaintiff could not engage in "prolonged"
 walking without experiencing "painful swelling in his legs and feet").

 5  As T&C points out, the Commission asserted in its opening brief that
 the performance-based deficiencies were not raised until after this
 lawsuit was commenced.  See T&C Brief at 41 (citing the Commission's
 brief).  That assertion was based upon the record as it then existed.
 T&C has since supplemented the record to include Koenig's January 1998
 affidavit.  As it turns out, this addition changes nothing.  The critical
 point is not whether the supposed deficiencies were first raised after
 the lawsuit was commenced or in a prior affidavit.  The critical point
 is that the deficiencies were not raised at the time of termination,
 nor even in the official position statement filed in response to Mickles'
 EEOC charge.  Contrary to T&C's assertion (T&C Brief at 42), the "EEOC's
 characterization of Town & Country's reasons for terminating Mickles as
 'after-the-fact'" remains correct.

 6  The qualifications standard might be different in a case involving
 reasonable accommodation under the ADA, where the plaintiff admits that
 his disability imposes limitations but argues that he can perform the
 essential functions of a job with reasonable accommodation.  This is
 not such a case.

 7  The Court should also reject T&C's argument that "Mickles failed
 to engage in reasonable efforts to mitigate his alleged damages even
 after abandoning his job at Metrolina Dodge."  T&C Brief at 56 n.11.
 The evidence on this point is in dispute.  See J.A. at 81.