EEOC v. Heartway Corp. (10th Cir.)
Reply brief and brief as cross-appellee
Sept. 13, 2005

                     ORAL ARGUMENT REQUESTED
                                 
                  Case Nos. 05-7011 & 05-7016
    __________________________________________________________
                              
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE TENTH CIRCUIT
    __________________________________________________________

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,    
      
                    Plaintiff-Appellant/Cross-Appellee,
 
v.
 
HEARTWAY CORPORATION 
d/b/a York Manor Nursing Center,
 
                    Defendant-Appellee/Cross-Appellant.
    ________________________________________________________
                                
        On Appeal from the United States District Court
      For the Eastern District of Oklahoma, No. 03-534-WH,
            The Honorable Ronald A. White, Presiding
   _________________________________________________________
                                
          CONSOLIDATED REPLY AND RESPONSE BRIEF OF THE
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT IN
    CASE NO. 05-7011 AND CROSS-APPELLEE IN CASE NO. 05-7016
             _________________________________________________________
                          
JAMES L. LEE                       JOSEPH A. SEINER
Deputy General Counsel             Attorney
                                   U.S. EQUAL EMPLOYMENT
LORRAINE C. DAVIS                    OPPORTUNITY COMMISSION
Acting Associate General Counsel   Office of General Counsel    
                                   1801 L Street, N.W., Room 7018        
CAROLYN L. WHEELER                 Washington, D.C.  20507         
Assistant General Counsel          (202) 663-4772
                                
                                
                                   
                       TABLE OF CONTENTS

                                                               Page
                                        
TABLE OF CONTENTS ...........................................     i

TABLE OF AUTHORITIES ........................................   iii

PRIOR OR RELATED APPEALS ....................................   vii

INTRODUCTION ................................................     1

ARGUMENT AS APPELLANT  ......................................     3

          THE DISTRICT COURT ERRED IN FAILING TO GIVE A 
     PUNITIVE DAMAGE INSTRUCTION TO THE JURY....................  3
                                   

ARGUMENT AS CROSS-APPELLEE..................................     13

STATEMENT OF THE ISSUES....................................      13

STATEMENT OF THE FACTS RELEVANT TO CROSS-APPEAL...............   13

DECISION BELOW...............................................    17

STANDARD OF REVIEW ..........................................    18

SUMMARY OF ARGUMENT .........................................    19

ARGUMENT ....................................................    21

     I.   THERE WAS SUFFICIENT EVIDENCE FOR A 
          REASONABLE JURY TO CONCLUDE THAT 
          HEARTWAY REGARDED EDWARDS AS DISABLED ............     21

     
     II.  THERE IS SUFFICIENT EVIDENCE TO UPHOLD 
          THE JURY'S FINDING THAT EDWARDS WAS 
          TERMINATED BECAUSE OF HER DISABILITY...............    35


CONCLUSION .................................................     41
                                        
STATEMENT REGARDING ORAL ARGUMENT...........................     41
     


CERTIFICATE OF COMPLIANCE

CERTIFICATE OF DIGITAL SUBMISSION
     
CERTIFICATE OF SERVICE
                    

               
                                
                     TABLE OF AUTHORITIES 

                         FEDERAL CASES 
                                        
       Bruso v. United Airlines, Inc.,
            239 F.3d 848 (7th Cir. 2001)  . . . . . . . . . . . . 7

       Canady v. J.B. Hunt Transport, Inc.,
            970 F.2d 710 (10th Cir. 1992) . . . . . . . . . .18, 37

       Crumpton v. St. Vincent's Hospital,
            963 F. Supp. 1104 (N.D. Ala. 1997)  . . . . . . . . .27

       Dalton v. Subaru-Isuzu Automotive, Inc.,
            141 F.3d 667 (7th Cir. 1998)  . . . . . . . . . . . .29

       Davey v. Lockheed Martin Corp.,
            301 F.3d 1204 (10th Cir. 2002)  . . . . . . . . . . . 3

       Doebele v. Sprint/United Mgmt. Co.,
            342 F.3d 1117 (10th Cir. 2003)  . . . . . . . 31-32, 34

       Duty v. Norton-Alcoa Proppants,
            293 F.3d 481 (8th Cir. 2002)  . . . . . . . . . . . .29

       EEOC v. Wal-Mart Stores, Inc.,
            187 F.3d 1241 (10th Cir. 1999)  . . . . . . . . 5, 6, 9

       Gagliardo v. Connaught Laboratories,
            311 F.3d 565 (3d Cir. 2002) . . . . . . . . . . . . . 5

       Kelly v. Metallics West,
            410 F.3d 670 (10th Cir. 2005) . . . . . . . .11, 33, 36
       
       Kolstad v. American Dental Association,
            527 U.S. 526 (1999) . . . . . . . . . . . . . . . . 2-4
       
       

       Lanman v. Johnson County,
            393 F.3d 1151 (10th Cir. 2004)  . . . . . . . . . .  23

       Lowery v. Circuit City Stores, Inc.,
            206 F.3d 431 (4th Cir. 2000)  . . . . . . . . . . . . 7

       Marinelli v. City of Erie,
            216 F.3d 354 (3d Cir. 2000) . . . . . . . . . . . . .27

       Marx v. Schnuck Markets, Inc.,
            76 F.3d 324 (10th Cir. 1996)  . . . . . . . . . . . .37

       McGeshick v. Principi,
            357 F.3d 1146 (10th Cir. 2004)  . . . . . . . . . . .32

       McKenzie v. Dovala,
            242 F.3d 967 (10th Cir. 2001) . . . . . . . . . . 30-33

       Miller v. Eby Realty Group LLC,
            396 F.3d 1105 (10th Cir. 2005)  . . . . . . . . . .  18
       
       Minshall v. McGraw Hill Broadcasting Co.
            323 F.3d 1273 (10th Cir. 2003), . . . . . . . . . .  19

       Mondzelewski v. Pathmark Stores, Inc.,
            162 F.3d 778 (3d Cir. 1998) . . . . . . . . . . . .  28

       Murphy v. United Parcel Service, Inc.,
            527 U.S. 516 (1999) . . . . . . . . . . . . . . . . .24
                                    
       Ogden v. Wax Works, Inc.,
            214 F.3d 999 (8th Cir. 2000)  . . . . . . . . . . . . 7
       
       Otting v. J.C. Penney Co.,
            223 F.3d 704 (8th Cir. 2000)  . . . . . . . . . . . . 6
          
       Praseuth v. Rubbermaid, Inc.,
            406 F.3d 1245 (10th Cir. 2005)  . . . . .18, 27, 29, 35
       
       Quint v. A.E. Staley Manufacturing Co.,
            172 F.3d 1 (1st Cir. 1999)  . . . . . . . . . . . . .29
     
       Romano v. U-Haul International,
            233 F.3d 655 (1st Cir. 2000)  . . . . . . . . . . . . 7
       
       School Board of Nassau County v. Arline,
            480 U.S. 273 (1987) . . . . . . . . . . . . . . . . .33
       
       Sheets v. Salt Lake County,
            45 F.3d 1383 (10th Cir. 1995) . . . . . . . . . . . .18
       
       Sorensen v. University of Utah Hosp.,
            194 F.3d 1084 (10th Cir. 1999)  . . . . . . . . . . .27

       Steele v. Thiokol Corp.,
            241 F.3d 1248 (10th Cir. 2001)  . . . . . . . . . . .24

       Sutton v. United Air Lines, Inc.,
            527 U.S. 471 (1999) . . . . . . . . . . . . . 22-25, 27

       Tomsic v. State Farm Mutual Automobile Insurance Co.,
            85 F.3d 1472 (10th Cir. 1996) . . . . . . . . . . . .36

       Townsend v. Lumbermens Mutual Casualty Co.,
            294 F.3d 1232 (10th Cir. 2002)  . . . . . . . . . . .37

       Toyota Motor Manufacturing, Ky., Inc. v. Williams,
            534 U.S. 184 (2002) . . . . . . . . . . . . . . . . .24

       Zimmermann v. Associates First Capital Corp.,
            251 F.3d 376 (2d Cir. 2001) . . . . . . . . . . . . . 7
       

            FEDERAL STATUTES, RULES AND REGULATIONS

       42 U.S.C.  1981a  . . . . . . . . . . . . . . . . . . . . 3

       29 C.F.R.  1630.2 . . . . . . . . . . . . . . . . 22-25, 28
       
       29 C.F.R. pt. 1630 app.  1630.2 . . . . . . .23, 25, 28, 33

       The Americans with Disabilities Act, 
            42 U.S.C.  12101 et seq . . . . . . . . . . . .passim
       
       Federal Rule of Civil Procedure 50 . . . . . . . . . . . .17


                        OTHER AUTHORITY

       EEOC Compl.Man., Section 902:  
            Definition of the Term "Disability" . . . . .23, 25, 28
                                 
                                
                                
                     PRIOR OR RELATED APPEALS          

PRIOR APPEALS
     There are no prior appeals.
          

RELATED APPEALS                         
     There are no related appeals.

                    
                  Case Nos. 05-7011 & 05-7016
    __________________________________________________________
                              
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE TENTH CIRCUIT
    __________________________________________________________

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
                                   
                    Plaintiff-Appellant/Cross-Appellee,

v.

HEARTWAY CORPORATION 
d/b/a York Manor Nursing Center,

                    Defendant-Appellee/Cross-Appellant.
    ________________________________________________________
                                
        On Appeal from the United States District Court
      For the Eastern District of Oklahoma, No. 03-534-WH,
            The Honorable Ronald A. White, Presiding
   _________________________________________________________
                                
          CONSOLIDATED REPLY AND RESPONSE BRIEF OF THE
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT IN
    CASE NO. 05-7011 AND CROSS-APPELLEE IN CASE NO. 05-7016
     _________________________________________________________
                                                            
                          INTRODUCTION
     In its opening brief, the Equal Employment Opportunity Commission
("Commission") argued that this Court should reverse the district court's decision
not to instruct the jury on punitive damages and remand for a new trial on this
issue.  The Commission argued that the district court improperly relied on three
Supreme Court decisions that all arose outside the employment context and
addressed only the constitutionality of punitive damage awards.  See EEOC Brief
at 11-12.  The district court also ignored the most relevant Supreme Court decision,
Kolstad v. American Dental Association, 527 U.S. 526 (1999), which established
the standards for punitive damage awards in employment discrimination cases. 
Under Kolstad and its progeny, the jury should have been permitted to consider a
punitive damage award in this case because:  (1) Townsend, the facility
administrator, knew that it was a violation of the ADA to terminate an employee
because that individual had Hepatitis C; (2) Townsend's actions can be imputed to
the company; and (3) the evidence in the record does not demonstrate that
Heartway acted in good faith.  
     In response to the Commission's argument, Heartway does not dispute that
Townsend's actions can be imputed to the company or that the record evidence
fails to establish that the defendant's actions were taken in good faith.  Heartway
therefore concentrates its brief exclusively on the first prong of the Kolstad test,
arguing that Townsend did not have the requisite knowledge to warrant a punitive
damage instruction  despite Townsend's testimony that he had training in the
ADA and was aware that it was illegal to terminate an employee because of a
disability.  Heartway's counter-factual semantic argument is unavailing, however,
as the case law of this and other circuits clearly establishes that Townsend's
understanding of the ADA was sufficient to satisfy the knowledge requirement for
a punitive damage claim.  The company's arguments are therefore ineffective in
overcoming the record evidence that demonstrates the district court's error in
failing to instruct the jury on punitive damages.

                     ARGUMENT AS APPELLANT

         THE DISTRICT COURT ERRED IN FAILING TO GIVE A 
            PUNITIVE DAMAGE INSTRUCTION TO THE JURY
                                
     In its opening brief, the Commission set forth the standard for 
determining whether punitive damages are appropriate as established by the
Supreme Court in Kolstad and adopted by this Court.  See EEOC Brief at 13-14. 
Under this standard, punitive damages are appropriate where the defendant
"engaged in a discriminatory practice" "with malice or with reckless indifference
to the federally protected rights" of the plaintiff.  42 U.S.C.  1981a(b)(1).  A
plaintiff can satisfy this statutory standard by establishing that (1) the defendant
"acted with knowledge that its actions violated federal law" and (2) the illegal
actions were taken by "a managerial agent who acted within the scope of
employment."  Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208-09 (10th
Cir. 2002).  Additionally, the employer can attempt to establish an affirmative
defense, and "punitive damages will not be awarded if the employer shows that it
engaged in good faith efforts to comply with Title VII."  Id. at 1209.  In its brief,
EEOC Brief at 14-25, the Commission demonstrated that the company's illegal
actions in this case were taken by a high-level managerial agent with complete
knowledge that his conduct was in violation of federal law, and that there is
insufficient evidence in the record to establish that the actions were taken in good
faith.  

     The Commission further noted that in reaching its decision, the district court
failed even to address Kolstad, the seminal Supreme Court decision on this issue
that was cited in the Commission's proposed jury instructions.  See EEOC Brief at
12; JA at 28 (Plaintiff's Proposed Jury Instructions and Verdict Form at 6). 
Rather, the court focused on three other Supreme Court cases  none of which arise
in the employment context or set forth the standard of punitive damages for a
victim of employment discrimination.  Instead, these cases all address the
constitutionality of punitive damage awards, an issue not relevant to this case.   
See EEOC Brief at 11-12.
     In response, Heartway says little in defense of the district court's ruling,
instead arguing only that the facility administrator's testimony and actions are
insufficient to demonstrate the knowledge that he was violating federal law.  By
failing even to address the Commission's arguments that the administrator's
actions should be imputed to the company and that there is insufficient record
evidence to establish that Heartway was acting in good faith, Heartway has
implicitly conceded that the Commission is correct on these issues.  
     The crux of Heartway's argument is that Townsend's testimony was
insufficient to satisfy the knowledge requirement because he only testified that he
understood that it was against the law to terminate someone with an actual
disability, but did not testify that he understood that it was against the law to
terminate someone with a perceived disability.  Heartway Brief at 11-18.  The case
law provides no support for the distinction Heartway attempts to make.  Indeed,
this Court has made clear that familiarity with the ADA alone is enough to
establish that the defendant had knowledge that its actions were in violation of
federal law.  In EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir.
1999), this Court reasoned that a "reasonable jury could have concluded that
[defendant] intentionally discriminated against [plaintiff] in the face of a perceived
risk that its action would violate federal law" where the manager who was
responsible for an employee's improper suspension "testified that he was familiar
with the accommodation requirements of the ADA and its prohibition against
discrimination and retaliation in the workplace."  Id.; see also Gagliardo v.
Connaught Labs., 311 F.3d 565, 573 (3d Cir. 2002) (plaintiff "demonstrated that
[defendant] was aware of her federal disability rights, as [the human resource
representative] testified she was familiar with the ADA and responsible for
ensuring [defendant] followed the ADA"); Otting v. J.C. Penney Co., 223 F.3d
704, 711-12 (8th Cir. 2000) ("sufficient evidence was presented to support the
jury's determination that [defendant] acted with malice or reckless indifference to
[plaintiff's] federally protected rights under the ADA," including evidence that
personnel manager did not properly seek to accommodate plaintiff and testified
that "he was aware that federal law imposed upon him" a duty to accommodate).
     Citing to this Court's decision in Wal-Mart with approval, the Fourth Circuit
held, in a Title VII case, that a manager's participation in an anti-discrimination
training seminar was sufficient to impute the knowledge requirement for punitive
damage purposes: 

     We conclude the record contains sufficient evidence, when viewed
     in the light most favorable to [plaintiff] and giving her the benefit of
     all reasonable inferences, for a reasonable juror to find that in
     intentionally refusing to promote [plaintiff] to the position of
     Supervisor of Management Recruiting, [the manager] did so in the
     face of a perceived risk that her decision would violate federal 
     law. . . . The record contains evidence that [the manager] knew
     taking race into account in making significant employment decisions
     such as denying promotions violates federal law. Specifically, a
     reasonable juror could infer that [the manager] had knowledge of the
     existence of federal anti-discrimination laws from [defendant's]
     evidence that it required every person in management to attend a
     week-long training seminar that included education on the federal
     anti-discrimination laws.
 
Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 443-44 (4th Cir. 2000).  See also
Bruso v. United Airlines, Inc., 239 F.3d 848, 858 (7th Cir. 2001) ("A plaintiff may
satisfy this [first] element by demonstrating that the relevant individuals knew of
or were familiar with the antidiscrimination laws and the employer's policies for
implementing those laws."); Zimmermann v. Assocs. First Capital Corp., 251 F.3d
376, 385 (2d Cir. 2001) ("[W]e agree with [the district court] that [the manager's]
acknowledgment of training in equal opportunity' permits an inference of the
requisite mental state."); Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir.
2000) (A manager "testified to his familiarity with the [harassment] policy, and
claimed he received extensive training on sexual harassment issues' in
conjunction with his M.B.A. A jury could therefore infer [this manager] had
knowledge of Title VII's proscriptions, and given this knowledge, reasonably
conclude he acted in the face of a perceived risk that his actions would violate
federal law."); Romano v. U-Haul Int'l, 233 F.3d 655, 669-70 (1st Cir. 2000)
(evidence that immediate supervisor knew that termination was discriminatory and
that company president was aware of anti-discrimination policies was sufficient for
reasonable jury to conclude that actions "were taken with reckless disregard to
[plaintiff's] federal rights").
     Here, Townsend not only testified that he had received ADA training, he
also conceded that, based on this training, he understood that he could not fire an
employee because of a disability or because the employee had been diagnosed with
Hepatitis C.   Specifically, Townsend testified:
     Q.  In some prior jobs that you've had, you have received training about the
Americans with Disabilities Act; right?
     A.  Some training.
     Q.  And you were aware, based on your training that you received, that it
     was against the law to fire someone because they had a disability; is that
     right?  
     
     A.  That's right.  
     
     Q.  And you knew, based on your training about the Americans with
     Disabilities Act, in April of 2002, that it was against the law simply
     because someone had been diagnosed with Hepatitis C; right?  
     A.  Correct. 

JA at 253 (Tr. at 185). 
     Townsend further demonstrated reckless disregard for Edwards' rights in his
comments to Edwards and an EEOC investigator:
         When Edwards asked if she could return to the York facility,
          Townsend replied "you having Hepatitis C, you will not work in our
          kitchen."  JA at 139 (Tr. at 71).  

         When an EEOC investigator contacted Townsend about the matter,
          Townsend asked "[w]ould you like to eat some food with her blood on
          it?"  JA at 226-27 (Tr. at 158-59).                         
     
         Townsend further told the EEOC Investigator that "[i]f the clients
          found out about the employee having Hepatitis C, they would have a
          mass exodus."  JA at 226-27, 255 (Tr. at 158-59, 187).  

     Thus, Townsend testified that he had training in and an understanding of the
ADA, and that he knew it was illegal to terminate an employee because of that
individual's disability.  This understanding is all that is required by the statute or
the case law to demonstrate that a manager's illegal actions were taken with the
knowledge that he was violating federal law.  See Wal-Mart, 187 F.3d at 1246.
     Despite Townsend's admissions that fulfill the knowledge requirement for
punitive damages, Heartway asserts that Townsend's acknowledgment at trial that
based on his ADA training he knew "that it was against the law to fire someone
because they had a disability" was ambiguous because "the phrase against the
law' is a colloquial term that has many meanings and is not necessarily tantamount
to a violation of an employee's rights under the ADA."  Heartway Brief at 11
(emphasis added).  This argument is premised on the idea that at trial Townsend
did not believe that the phrase "against the law" meant "against the ADA."  A
review of the questions asked to Townsend, however, reveals no such ambiguity. 
The first question as to whether Townsend was aware "that it was against the law
to fire someone because they had a disability" is premised on Townsend's prior
training on the ADA.  JA at 253 (Tr. at 185).  And, the next question asked
specifically whether, pursuant to this ADA training, Townsend knew "that it was
against the law simply because someone had been diagnosed with Hepatitis C."  Id. 
To suggest that these questions referred to any law other than the ADA or to some
colloquial meaning of "the law" is disingenuous.
     Similarly, Heartway's argument that Townsend did not have an
understanding that it was illegal to terminate an individual who was regarded as
disabled also fails on its face.  As set forth above, Townsend testified that he had
training in the ADA, he knew that it "was against the law to fire someone because
they had a disability," and he knew based on his training that it would be against
the law to fire someone because she "had been diagnosed with Hepatitis C."  JA at
253 (Tr. at 185) (emphasis added).  Although ADA coverage is sometimes a matter
of dispute, Townsend's training and admissions that he knew someone with
Edwards' impairment would be protected by the ADA are sufficient to support an
award of punitive damages.  The ADA defines disability to include both actual and
perceived impairments.  See 42 U.S.C.  12102(2) (defining disability to include "a
physical or mental impairment that substantially limits one or more of the major
life activities of such individual" or "being regarded as having such an
impairment").  See Kelly v. Metallics West, 410 F.3d 670, 675 (10th Cir. 2005)
("the plain language of the ADA's interlocking statutory definitions includes
within the rubric of a qualified individual with a disability' protected by the ADA
individuals. . . regarded as disabled").  Thus, Townsend's testimony that he knew it
was illegal to terminate an individual because of a disability necessarily
encompasses an understanding that it was illegal to terminate an individual because
of a perceived disability.  Further, his specific acknowledgment that someone
diagnosed with Hepatitis C is protected by the ADA reflects that he knew Hepatitis
is an impairment that either actually limits major life activities or is mistakenly so
regarded.  That he himself made this mistake and acted on it in firing Edwards
cannot shield Heartway from punitive damages but rather provides the basis for
such a remedy.<1>
     In summary, the facility administrator's testimony in this case was clear and
unambiguous: Townsend had prior training on the ADA, and was aware that it was
illegal to terminate an employee because of a disability or because the employee
had been diagnosed with Hepatitis C.  Under the case law of this Court and other
circuits, this understanding of the ADA is more than sufficient to satisfy the
knowledge requirement for a punitive damage claim.  Because Heartway does not
challenge the Commission's arguments in its opening brief that (1) Townsend's
actions can be imputed to the company and (2) that there is insufficient evidence in
the record to establish that the company acted in good faith, the Commission has
satisfied all of the elements required to warrant a punitive damage instruction.  The
district court therefore erred in failing to give this instruction to the jury. 


                    ARGUMENT AS CROSS-APPELLEE

                     STATEMENT OF THE ISSUES

     1) Whether the district court properly determined that there was
     sufficient evidence presented at trial to support the jury's verdict that
     Heartway regarded Edwards as disabled?
     
     2) Whether there was sufficient evidence for a reasonable juror to find
     that Edwards was terminated because of a disability and reject
     defendant's view that Edwards was terminated for allegedly lying on
     her job application?     

     The defendant properly preserved the first question by raising it at the close
of plaintiff's case and again after trial.  See JA at 323-328 (Tr. at 263-268); JA at
78 (district court order ruling on plaintiff's post-trial JNOV motion).  The
defendant appears to have addressed the second issue briefly at the close of
plaintiff's case and also after trial.  See JA at 325-26 (Tr. at 265-66); JA at 78
(district court order ruling on plaintiff's post-trial JNOV motion).

        STATEMENT OF THE FACTS RELEVANT TO CROSS-APPEAL<2>

     Janet Edwards was diagnosed with Hepatitis C and was treated for this
condition.  JA at 94-98 (Tr. at 26-30).  By January 2001, Edwards' condition
improved and there was no longer a detectable virus in her blood.  JA at 96-97 (Tr.
at 28-29).  Edwards continued to respond to treatment, and on July 9, 2001, there
was still no detectable Hepatitis C virus in Edwards' blood.  JA at 102 (Tr. at 34). 
Edwards testified that her Hepatitis C was in remission.  JA at 127-28, 157 (Tr. at
59-60, 89).  On August 13, 2001, Edwards applied for a position at Heartway.  JA
at 125, 128 (Tr. at 57, 60).  As part of the application process, Edwards completed
a physical requirements questionnaire which asked "[i]n order that we may protect
our residents from disease, please indicate if you are under a doctor's care or
taking medications now."  JA at 128-29, 356 (Tr. at 60-61, EEOC's Trial Ex. 8). 
Edwards checked "no" in response to this question and testified that she was not
taking any medication at that time or under a doctor's care.  JA at 129-130, 356
(Tr. at 61-62, EEOC's Trial Ex. 8).  Edwards testified that as of August 2001, "my
hepatitis was in remission, and. . . I would have to go back in six months to have
another lab work done, to make sure it stays in remission."  JA at 130 (Tr. at 62).
     Edwards was offered a position as a dietary aide at Heartway on August 15,
2001 and was eventually moved to the cook's position.  JA at 132-33 (Tr. at 64-
65).  As a dietary aide, Edwards "[s]et up the dining room for the residents.  We
put out plates and silverware, made sure there was sugar and a little salt and
pepper, and got them their drinks, and set up trays with the plates and the
silverware, and put them on a cart so they could be put onto another cart to go
down the halls to the different rooms, to the people that weren't able to come to the
dining room.  Washed dishes, swept and mopped, took out trash."  JA at 132 (Tr. at
64).  As a cook, Edwards prepared food for the residents and employees.  JA at 133
(Tr. at 65).  Expert trial testimony revealed that Edwards' job requirements at
Heartway fell into two classes of jobs listed in the 2000 census data: health care
support and food preparation and food service.  JA at 289-90, 293 (Tr. at 221-22,
225).  These jobs make up the majority of employment opportunities in the broader
service worker industry in the relevant counties of Muskogee and McIntosh,
Oklahoma  approximately 3500 total jobs.  JA at 293 (Tr. at 225).    
     While employed at Heartway, Edwards had a conversation with the director
of nursing, Theresa Rains, in which Edwards revealed that she previously had been
diagnosed with Hepatitis C.  JA at 134-35 (Tr. at 66-67).  Two days later, Edwards
received a call from Rains informing her that she would need a doctor's note
before she could return to work.  JA at 136 (Tr. at 68).  On April 4, 2002, Edwards'
physician prepared a letter releasing her to return to work, which was sent to
Edwards.  JA at 106-07, 137, 354-55 (Tr. at 38-39, 69, EEOC Trial Ex. 7).  After
Edwards received the letter, she also received a call from her supervisor at the
kitchen, who fired her.  JA at 138 (Tr. at 70).  
     Edwards' employment at Heartway was officially terminated by Mitchell
Townsend, the facility administrator, on April 5, 2002.  JA at 126 (Tr. at 58). 
Edwards met with Townsend who told her "you having Hepatitis C, you will not
work in our kitchen."  JA at 139 (Tr. at 71).  Though Edwards gave Townsend her
physician's letter authorizing her to return to work, Townsend did not even read
the letter.  JA at 139, 257, 312 (Tr. at 71, 189, 252).  In response to Edwards'
question whether she was being terminated because of her Hepatitis, Townsend
"kind of smiled" and "kind of looked to the side a little bit" and stated that she was
being fired because she lied on her job application.  JA at 139, 164, 313-14 (Tr. at
71, 96, 253-54).
     During an investigation of her discrimination charge, the EEOC investigator
discussed Edwards' employment with Townsend.  JA at 226, 358 (Tr. at 158,
EEOC Trial Ex. 19).  Townsend asked the investigator if the call was "about the
Hepatitis C case," to which the investigator responded that it was.  JA at 226 (Tr. at
158).  Townsend then asked "[w]ould you like to eat some food with her blood on
it?"  Id.  Townsend further stated that "[i]f the clients found out about the
employee having Hepatitis C, they would have a mass exodus."  JA at 226-27, 255
(Tr. at 158-59, 187).

                         DECISION BELOW

     At the close of the Commission's case, Heartway moved for judgment as a
matter of law ("JMOL") on the ground that the EEOC had not presented sufficient
evidence that Heartway regarded Edwards as being substantially limited in
working in a class or broad range of jobs.  JA at 323-328 (Tr. at 263-68).  As part
of this argument, Heartway maintained that there was no evidence that Townsend
"ever considered anything other than that Ms. Edwards was dishonest in her job
application."  JA at 325 (Tr. at 265).  The district court denied this motion holding
that "a reasonable jury may be able to find that there was evidence of adverse
discrimination based upon disability for a broad range of jobs."  JA at 332 (Tr. at
272). 
     On August 17, 2004, the jury found by a preponderance of the evidence that 
Heartway had discriminated against Edwards because of a perceived disability.  JA
at 63 (Verdict Form).  On November 2, 2004, Heartway filed a motion for
judgment notwithstanding the verdict ("JNOV")<3>, renewing its argument that the
evidence "was not sufficient for EEOC to prove the element of EEOC's prima
facie case" that Heartway "regarded [Edwards] as being disabled."  JA at 78
(November 29, 2004 district court order).  On November 29, 2004, the district
court denied Heartway's motion, finding that "the evidence was sufficient for the
jury to find that the Defendant violated the [ADA] when it discharged Janet
Edwards."  Id.      

                       STANDARD OF REVIEW

     This Court reviews de novo the district court's denial of Heartway's JMOL
motion.  Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1250 (10th Cir. 2005)
(citing Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir. 1995)).  This
Court should uphold the jury's verdict unless, "viewed in the light most favorable
to the non-moving party, the evidence and all reasonable inferences to be drawn
from it point but one way, in favor of the moving party."  Praseuth, 406 F.3d at
1250 (citing Sheets, 45 F.3d at 1387) (emphasis added); see also Canady v. J.B.
Hunt Transp., Inc., 970 F.2d 710, 714 (10th Cir. 1992) ("jury verdicts are not to be
lightly overturned") (internal quotation omitted).  Under this relatively narrow
standard of review, this Court should only reverse the district court if "the evidence
and all inferences to be drawn therefrom are so clear that reasonable minds could
not differ on the conclusion."  Miller v. Eby Realty Group LLC, 396 F.3d 1105,
1110 (10th Cir. 2005) (quotation omitted).  On review, this Court should not
"weigh the evidence, pass on the credibility of witnesses, or substitute [its]
conclusions for that of the jury."  Id. at 1110-11 (quoting Minshall v. McGraw Hill
Broadcasting Co., 323 F.3d 1273, 1279 (10th Cir. 2003) (citation omitted)).   
  
                       SUMMARY OF ARGUMENT        

     In its opening brief, Heartway challenges the district court's ruling
upholding the jury's determinations that (1) Edwards was covered by the ADA and
(2) Heartway terminated Edwards because of her disability.  Though Heartway
makes two separate arguments challenging liability, its brief advances one basic
theme  Heartway disagrees with the jury's determination that Townsend
terminated Edwards because of her disability rather than because she allegedly lied
on her job application.  In its brief, Heartway ignores the fact that the jury has
spoken on this issue, and that it clearly determined that Heartway terminated
Edwards because of her disability.  Heartway also ignores the fact that Townsend's
openly discriminatory comments to the EEOC investigator and to Edwards provide
more than sufficient evidence to uphold this verdict.  Because the finder of fact has
reached a determination on this issue, the matter need not and should not be re-
tried on appeal.  Heartway's attempt to alter the focus of the case by questioning
Edwards' credibility is therefore nothing more than an effort to divert attention
from the openly discriminatory comments of its own facility administrator.   
     There can be no question that the evidence supports the jury's determination
that Edwards was covered by the ADA because the company regarded her as
substantially limited in the major life activity of working.  The Commission
demonstrated that Heartway believed that Edwards was substantially limited in
working.  Expert trial testimony revealed that Edwards' job duties, as well as the
education and experience required for those duties, were similar to positions in the
"health care support" and "food preparation and food service" job classes.  These
jobs account for the majority of employment opportunities in the service worker
category of the relevant geographical area in Oklahoma.  Additionally, the facility
administrator made clear that it was his belief that Edwards could not perform her
job  or those jobs in the health care support or food preparation and food service
industry  at all.  Townsend expressed this belief to Edwards ("you having
Hepatitis C, you will not work in our kitchen"), indicated that the company's own
customers would share this view ("[i]f the clients found out about the employee
having Hepatitis C, they would have a mass exodus"), and suggested that others
outside the company would hold the same discriminatory bias ("[w]ould you like
to eat some food with her blood on it?").  JA at 139, 226-27, 255 (Tr. at 71, 158-
59, 187).  When combined with the expert trial testimony, this evidence is more
than sufficient to support the jury determination that Heartway perceived that
Edwards was substantially limited in working.
     It is equally clear that there is sufficient evidence to support the jury's
determination that Edwards was terminated because of her disability, and not for
allegedly lying on her job application.  Townsend's discriminatory comments to an
EEOC investigator and to Edwards were sufficient to support the jury's finding
that Edwards was terminated because of her disability.  And, even though the
Commission need not show that Edwards responded truthfully to the medical
questions on her employment questionnaire, there was sufficient evidence for a
reasonable jury to conclude that she was honest when responding to these
inquiries.  This Court should therefore uphold the jury's verdict that Heartway
terminated Edwards because of a perceived disability, as well as the district court's
orders on these issues.
                             ARGUMENT        
     
I.   THERE WAS SUFFICIENT EVIDENCE FOR A REASONABLE JURY
     TO CONCLUDE THAT HEARTWAY REGARDED EDWARDS AS
     DISABLED  

     In its opening brief, Heartway asserts that there was insufficient evidence for
the jury's determination that the company perceived Edwards as disabled. 
Heartway Brief at 19-24.  Heartway provides little support for this argument,
however, asserting broadly that the facility administrator's discriminatory conduct
was insufficient to uphold the jury's finding.  Id. at 21-24.  Contrary to Heartway's
conclusory arguments, however, there is an abundance of evidence in the record to
support the jury's verdict that Heartway perceived that Edwards was disabled.  
     An employee is disabled under the ADA if the employer "regarded" that
individual as having an impairment that substantially limits one or more major life
activities.  42 U.S.C.  12102(2).  At the close of evidence, the district court
properly permitted the jury to determine whether Edwards was disabled, stating
that "a reasonable jury may be able to find that there was evidence of adverse
discrimination based upon disability for a broad range of jobs."  JA at 332 (Tr. at
272).  After considering this evidence, the jury concluded that Heartway
"perceived" that Edwards was disabled.  JA at 63 (Jury Verdict Form).  The court
correctly submitted this issue to the jury and the jury properly applied the law to
the evidence adduced at trial in reaching its conclusion. 
     In Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999), the Supreme
Court held that an individual is regarded as disabled where "a covered entity
mistakenly believes that an actual, nonlimiting impairment substantially limits one
or more major life activities."  See also 29 C.F.R.  1630.2(l)(1) (an individual will
be "regarded as" having a disability if the individual "[h]as a physical or mental
impairment that does not substantially limit major life activities but is treated by a
covered entity as constituting such a limitation"); EEOC Compl.Man., Section 902: 
Definition of the Term "Disability," available at
http://www.eeoc.gov/policy/docs/902cm.html ("Compl. Man.")  902.8(c) (the
ADA "covers individuals who have impairments that do not substantially limit
major life activities but who are perceived as being substantially limited"); 29
C.F.R. pt. 1630 app.  1630.2(l) (same).  In this case, it is undisputed that the
EEOC demonstrated that Edwards had an actual impairment  Hepatitis C that was
in remission.  JA at 94, 96-97, 102-03, 107, 130, 354-55 (Tr. at 26, 28-29, 34-35,
39, 62; EEOC Trial Ex. 7).  
     The EEOC also showed that Heartway erroneously believed that Edwards'
Hepatitis C substantially limited a major life activity  her ability to work.  See 29
C.F.R.  1630.2(i) (the phrase "major life activities" means "functions such as . . .
working"); 29 C.F.R. pt. 1630 app.  1630.2(i) (same); see also Lanman v. Johnson
County, 393 F.3d 1151, 1157 (10th Cir. 2004) (stating that working is a major life
activity).
     According to the Supreme Court in Sutton:
     When the major life activity under consideration is that of working, the
     statutory phrase "substantially limits" requires, at a minimum, that
     plaintiffs allege they are unable to work in a broad class of jobs. . . . To
     be substantially limited in the major life of activity of working . . . one
     must be precluded from more than one type of job, a specialized job, or a
     particular job of choice.  If jobs utilizing an individual's skills (but
     perhaps not his or her unique talents) are available, one is not precluded
     from a substantial class of jobs.  Similarly, if a host of different types of
     jobs are available, one is not precluded from a broad range of jobs.

Sutton, 527 U.S. at 491-92; see also Murphy v. United Parcel Serv., Inc., 527 U.S.
516, 523 (1999) (same); Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184,
200 (2002) (same).  In the context of a regarded as working claim, an employee
"must show that the employer regarded him or her as being substantially limited in
performing either a class of jobs or a broad range of jobs in various classes." 
Steele v. Thiokol Corp., 241 F.3d 1248, 1256 (10th Cir. 2001) (quotation omitted). 
A "class of jobs" refers to "the number and types of jobs utilizing similar training,
knowledge, skills or abilities, within that geographical area, from which the
individual is also disqualified because of the impairment."  29 C.F.R. 
1630.2(j)(3)(ii)(B)(emphasis added).<4>
     To demonstrate that Heartway regarded Edwards as limited in working, the
Commission presented evidence of her job duties, expert testimony relating those
job duties to the classes of jobs from which Edwards would be disqualified by
Heartway's perception, and evidence of Townsend's views of Edwards' inability to
perform these classes of jobs.  Edwards' duties at Heartway required knowledge,
skills or abilities common to two large classes of jobs involving food service and
health care support.  Edwards testified that as a dietary aide she "[s]et up the dining
room for the residents.  We put out plates and silverware, made sure there was
sugar and a little salt and pepper, and got them their drinks, and set up trays with
the plates and the silverware, and put them on a cart so they could be put onto
another cart to go down the halls to the different rooms, to the people that weren't
able to come to the dining room.  Washed dishes, swept and mopped, took out
trash."  JA at 132 (Tr. at 64).  When she was moved to the cook's position,
Edwards prepared food for the residents and employees.  JA at 133 (Tr. at 65). 
     The expert testimony of Elvira Sisolak, EEOC Economist, demonstrated that
these duties involved skills and abilities common to two classes of jobs.  Sisolak
"determine[d] which job categories" should be considered by examining "the
duties of the job" and positions with similar "experience or education
requirements" in the relevant geographical area.  JA at 291-92 (Tr. at 223-24). 
Sisolak concluded that Edwards' job duties at Heartway, as well as the education
and experience required for those duties, were similar to positions in the "health
care support" and "food preparation and food service" job categories.  JA at 289-90
(Tr. at 221-22).  After determining these applicable job classes, Sisolak "extracted
some of the census data and did some very simple calculations."  JA at 292 (Tr. at
224).  Based on this analysis, Sisolak testified that in the relevant geographic area
it was her opinion "that based on the census data, there is, in fact, a broad [class] of
jobs that is constituted by the health care support and food preparation and food
serving positions within the service worker category."  JA at 293 (Tr. at 225). 
Sisolak further testified that these two categories account for the majority of
service worker employment opportunities in the area  or approximately 3500 total
jobs.  JA at 293 (Tr. at 225).
     This expert testimony is more than sufficient to uphold the jury
determination that Edwards was perceived as disabled from working in a broad
class of jobs as required by Sutton.  See, e.g., Praseuth v. Rubbermaid, Inc., 406
F.3d 1245, 1251 (10th Cir. 2005) (expert testimony that plaintiff's "potential
occupational base' was substantially reduced" supported jury determination that
individual with blood and lymph node disease who was limited in working around
knives or sharp objects was precluded "from performing a very substantial array of
the jobs for which she would otherwise have been qualified").  The courts have
considered certain job categories to constitute a class or broad range of jobs in
similar circumstances.  See, e.g., Marinelli v. City of Erie, 216 F.3d 354, 364 (3d
Cir. 2000) (listing chef as an example of a class of jobs).  See also Crumpton v. St.
Vincent's Hosp., 963 F. Supp. 1104, 1114 (N.D. Ala. 1997) (referring to
"institutional cook" as a "broad range of jobs").  Certainly the evidence here was
sufficient to establish that the company perceived Edwards as unable to perform
more than one particular job.  See, e.g., Sorensen v. Univ. of Utah Hosp., 194 F.3d
1084, 1089 (10th Cir. 1999) (rejecting disabled in working claim because plaintiff
only precluded from "the position of flight nurse" which "is a single job").  
     There can also be no question that Heartway perceived that Edwards was
substantially limited in performing work in the food preparation or service and
health care job classes.  As it relates to "the major life activity of working,"
substantially limited "means significantly restricted in the ability to perform either
a class of jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities."  29 C.F.R. 
1630.2(j)(3)(i); see also 29 C.F.R. pt. 1630 app.  1630.2(j) (same); Compl. Man. 
902.4(c)(same).  The jury heard evidence that Townsend, the administrator of the
Heartway facility, told Edwards that she would "not work in our kitchen" because
she had Hepatitis C.  JA at 139 (Tr. at 71).  Townsend also asked an EEOC
investigator how he would "like to eat some food with her blood on it" and stated
that "[i]f the clients found out about the employee having Hepatitis C, they would
have a mass exodus."  JA at 226-27 (Tr. at 158-59). These comments demonstrate
that Heartway's mistaken beliefs regarding Edwards extended to the performance
of any job that involved handling food or providing health care support.  And, in
asking how the EEOC investigator would "like to eat some food with her blood on
it," Townsend clearly revealed his belief that others outside the company would
hold the same discriminatory biases as Heartway.  
     Heartway's belief that Edwards' blood could contaminate the food and cause
an "exodus" of its clientele establishes the company's belief that Edwards was
"significantly restricted."   This evidence suggests that the company perceived that
Edwards was unable to work at all in these job classes.  Under the law, this proof
was more than sufficient.  See Mondzelewski v. Pathmark Stores, Inc., 162 F.3d
778, 784-86 (3d Cir. 1998) (report showing "very low employment opportunities"
in an employee's geographical area was sufficient to show that an employee was
"significantly restricted" in working); Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d
667, 676 (7th Cir. 1998) ("A rational trier of fact could reasonably find that the
substantial percentage reductions in the broad range of jobs available to these
plaintiffs [between 35% and 89% of jobs], coupled with their own testimony about
the effect of their disabilities on their work as production associates, substantially
limited them in the major life activity of working"); Quint v. A.E. Staley Mfg. Co.,
172 F.3d 1, 12 (1st Cir. 1999) (expert testimony that plaintiff's restrictions
"probably preclude a lot of physical jobs" and that "there are a lot of physical jobs
in Maine" enough evidence for reasonable jury to conclude plaintiff was
substantially limited in working).  See also Duty v. Norton-Alcoa Proppants, 293
F.3d 481, 492 (8th Cir. 2002) (finding a vocational consultant's affidavit
concluding that employee was disqualified from the available jobs in his working
area to be sufficient for jury verdict in employee's favor, when combined with
evidence regarding the employee's lack of education, inability to perform work in
which he was trained, and relatively advanced age); Praseuth, 406 F.3d at 1251
(plaintiff who was limited in ability to work around knives or sharp objects was
precluded "from performing a very substantial array of the jobs").  Indeed,
Townsend's comment to Edwards that "you having Hepatitis C, you will not work
in our kitchen" revealed the company's belief that she was completely unable to
work in these classes of jobs.  JA at 139 (Tr. at 71).  
     This Court has found similar evidence sufficient to establish coverage under
a theory of regarded as limited in working in two cases involving plaintiffs with
psychological problems who were subjected to treatment similar to Heartway's
treatment of Edwards.  In McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001), this
Court addressed a situation in which the plaintiff, a deputy sheriff with
psychological problems, maintained that her employer perceived her as disabled in
working.  This Court found that a "factual controversy [exists] as to whether
defendant viewed [plaintiff] as limited in her ability to work in the class of jobs
comprising law enforcement."  Id. at 971.  In that case, the employer regarded the
deputy sheriff as psychologically impaired and refused to consider placing her in a
less sensitive post, including the civil, records, administrative, or jail divisions, and
further sought to have the employee decertified as a peace officer.  Id. at 971-72. 
Just as Heartway perceived that Edwards could not work in the food preparation or
service and health care job classes, "McKenzie submitted uncontroverted evidence
that, since her illness, she has been regarded as unemployable in the class of jobs
utilizing [her] skills.'"  Id. at 972 n.6 (citation omitted).  And, like the
misperception over the safety and public acceptance of Edwards' condition by
Heartway residents in this case, the employer's concern in McKenzie over "safety,
liability and public acceptance" provided evidence that the employer regarded the
plaintiff as disabled.  Id. at 971. 
     Similarly, in Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir.
2003), this Court found that a fact issue existed as to whether the employer
regarded a financial analyst as "substantially limited from a broad class of jobs"
where the worker's supervisors expressed a belief that the plaintiff, suffering from
mental disorders, posed a physical threat to coworkers.  Id. at 1133.  The
unwarranted concern over the "threat" posed by Doebele is comparable to
Townsend's baseless concern over the threat of Edwards' blood potentially ending
up in the food she prepared.  Moreover, like Heartway's concerns that there would
be a "mass exodus" if residents at the nursing home discovered Edwards'
impairment, the plaintiff's supervisors in Doebele expressed a concern with the
plaintiff's productivity and attendance,  recognized by this Court as "indicators of
discrimination based on myth, fears, and stereotypes."  Id. at 1133-34.  Also,
similar to Townsend's refusal to consider the doctor's letter given to him by
Edwards, this Court acknowledged in Doebele that "[t]he supervisors' disregard of
the assessment and recommendations of [the employee's] treating physician
support the inference that their actions were improperly based on myth, fear, and
stereotype. . ."  Id. at 1134.
     As this Court's decisions also make clear, an employer's failure to consider
an employee for another position at the company supports a claim that the
employer regarded her as substantially limited in working in a class of jobs.  See
Doebele, 342 F.3d at 1134 (court notes that defendant "did not consider offering
Ms. Doebele another position at Sprint" despite the fact that "Sprint was hiring
200-300 people a week at the time" in reversing summary judgment); McKenzie,
242 F.3d at 972 ("By refusing to consider her for a job in her former workplace
despite ten years of successful service, the Sheriff treated [plaintiff] as significantly
restricted as compared to the average person having comparable training, skills and
abilities.") (internal quotation omitted).  Heartway demonstrated, in firing her, its
belief that Edwards could not perform another job.  See McGeshick v. Principi,
357 F.3d 1146, 1151 (10th Cir. 2004) (fact that the employer invited applicant to
apply for other jobs supports view that the employer did not regard the employee
as substantially limited in working).  In this case, Townsend declined to give
Edwards her job back, and did not discuss the possibility of her working in any
other capacity at the company.  See JA at 139 (Tr. at 71) (in response to Edwards
asking why she could not have her job back, Townsend replied "[w]ell, Janet, you
having Hepatitis C, you will not work in our kitchen.").
     It is thus clear that Heartway, which was concerned with the "mass exodus"
of its patients and the exposure of food at the facility to Edwards' blood, based its
termination decision exclusively on the myth, fears and stereotypes' of its own
management and residents regarding Hepatitis C.  See Sch. Bd. of Nassau County
v. Arline, 480 U.S. 273, 284 (1987) ("Congress acknowledged that society's
accumulated myths and fears about disability and disease are as handicapping as
are the physical limitations that flow from actual impairment."); 29 C.F.R. pt. 1630
app.  1630.2(l) ("An individual rejected from a job because of the myths, fears
and stereotypes' associated with disabilities would be covered under this part of
the definition of disability. . .").  The Supreme Court has acknowledged that "[f]ew
aspects of a handicap give rise to the same level of public fear and
misapprehension as contagiousness."  Arline, 480 U.S. at 284.  As this Court
recently affirmed, "[t]he ADA is concerned with safeguarding the employee's
livelihood from adverse actions taken on the basis of stereotypic assumptions not
truly indicative of the individual ability' of the employee."  Kelly, 410 F.3d at 676
(quoting 42 U.S.C.  12101(a)(7)).  See also McKenzie, 242 F.3d at 971 (finding
issue of fact as to whether employer regarded employee as disabled in working and
stating that "[a]ccording to the EEOC's interpretive guidelines, if an individual can
show that a potential employer refused to hire her based on myth, fear, or
stereotype,' including concerns regarding safety, insurance, liability, and
acceptance by coworkers and the public, the individual will satisfy the regarded
as' component of the definition of disability. . . The fact that defendant rejected
McKenzie's application without submitting her for a standard psychological or
psychiatric assessment as provided for by state law is further evidence that those
concerns were based on myths, fears, and stereotype'. . .").  See also Doebele, 342
F.3d at 1133 (setting forth EEOC interpretive guidelines on issue).  
     Heartway's fear and misapprehension regarding Edwards' Hepatitis cannot
be disputed, and the company's argument that Townsend terminated Edwards
because she lied on her application and not "because he perceived her to be unable
to perform her job at York Manor" misses the mark.  Heartway Brief at 22.  The
jury heard all the evidence about what Townsend was thinking when he fired
Edwards, and was entitled to conclude, as it did, that Townsend was motivated by
Edwards having Hepatitis and not by her allegedly lying about it on her
application.  Townsend made clear that it was his belief that Edwards could not
perform her job ("you having Hepatitis C, you will not work in our kitchen"), that
its own customers would share this view ("[i]f the clients found out about the
employee having Hepatitis C, they would have a mass exodus"), and that others
outside the agency would hold the discriminatory bias as well ("[w]ould you like to
eat some food with her blood on it?").  JA at 139, 226-27, 255 (Tr. at 71, 158-59,
187).  When combined with the expert trial testimony, this evidence is more than
sufficient to support the jury determination that Heartway perceived that Edwards
was substantially limited in working.

     II.  THERE IS SUFFICIENT EVIDENCE TO UPHOLD THE JURY'S
          FINDING THAT EDWARDS WAS TERMINATED BECAUSE OF
          HER DISABILITY

     There is an abundance of evidence in the record supporting the jury's verdict
that Edwards was terminated because of her perceived disability  and not because
she allegedly lied on her job application as asserted by Heartway.  When reviewing
a sufficiency of the evidence claim raised in a motion after trial, this Court should
only reverse the district court if it "conclude[s] that, viewed in the light most
favorable to the non-moving party, the evidence and all reasonable inferences to be
drawn from it point but one way, in favor of the moving party."  Praseuth, 406
F.3d at 1250.  Rather than pointing in Heartway's favor, the evidence here was
more than sufficient to uphold the jury's determination that Heartway illegally
fired Edwards. 
     The jury had before it very clear evidence as to Townsend's motivation in
terminating Edwards, evidence that showed his attitudes were "mired in prejudice."
Kelly, 410 F.3d at 676.  The jury knew that Townsend had expressed his feelings
about Edwards' impairment directly to Edwards, telling her "you having Hepatitis
C, you will not work in our kitchen."  JA at 139 (Tr. at 71).  The jury further knew
that Townsend could not even conceal his discriminatory biases when talking to an
EEOC investigator, asking him "[w]ould you like to eat some food with her blood
on it?"  JA at 226-27 (Tr. at 158-59).  And, the jury was aware that Townsend was
concerned that if the residents of the nursing facility were to discover Edwards'
impairment, they would abandon the facility, stating "[i]f the clients found out
about the employee having Hepatitis C, they would have a mass exodus."  JA at
226-27, 255 (Tr. at 158-59, 187). 
      This telling evidence of open, overt disability discrimination almost
mandates a jury's finding that Edwards was terminated because of her perceived
disability.  But, at a minimum, the evidence certainly supports the jury's
determination.  This Court should therefore not disturb the jury's verdict in this
matter.  See, e.g., Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1478
(10th Cir. 1996) (finding triable issue of fact regarding plaintiff's allegation of sex
discrimination and employer's reason for termination, "poor performance," such
that "[i]t is fundamental that the jury must be permitted to decide from among the
different inferences which might be drawn from the evidence").  See also
Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1242-43 (10th Cir. 2002)
(sufficient evidence for jury to make a credibility determination in plaintiff's favor
to find race discrimination, even where employer alleged that demotion and firing
were based upon "poor performance," so district court erred in failing to give
pretext instruction); Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir.
1996) (issue of fact in retaliation claim where several retaliatory acts alleged
including a "demotion for lying about discussions relating to a[n] FLSA
questionnaire") (emphasis added); Canady, 970 F.2d at 714 ("jury verdicts are not
to be lightly overturned. . . . Judgment N.O.V. is proper only when the evidence so
strongly supports an issue that reasonable minds could not differ. . . . The court
cannot weigh evidence, consider the credibility of witnesses or substitute its
judgment for that of the jury.") (internal quotation omitted).  In this case, Heartway
does not and cannot contend that the jury was not properly instructed or that it did
not have every opportunity to persuade the jury of its version of the facts and its
reason for firing Edwards.  It failed to persuade the jury and on appeal it has failed
to meet its heavy burden of demonstrating a ground for reversal.  
     To support the jury's verdict, the Commission need not establish that
Edwards was truthful on her job application.  The evidence of Townsend's blatant
discriminatory bias in this case is more than sufficient to support the jury's finding
that Edwards was terminated because of her disability  even assuming the jury
also believed that Edwards lied on her job application.  Nonetheless, it is worth
noting that there was sufficient evidence for the jury also to conclude that Edwards
had been truthful on her job application when responding to the medical inquiries. 
Heartway essentially argues that Edwards was untruthful when she responded on
August 13, 2001, to a questionnaire as part of her job application process for
Heartway, and indicated that she was not "under a doctor's care or taking
medications now."  JA at 128-29, 356 (Tr. at 60-61, EEOC's Trial Ex. 8). 
     However, a reasonable jury could have concluded that Edwards responded
truthfully on her job application when she indicated that she was not under a
doctor's care.  Edwards testified that as of August, 2001, it was her understanding
that "my hepatitis was in remission, and that I would have to go back in six months
to have another lab work done, to make sure it stays in remission."  JA at 130 (Tr.
at 62).<5> Thus, at the time she filled out her application, Edwards did not believe
that her Hepatitis was even active.  To the lay person filling out an application for a
job, having a general ongoing relationship with a doctor to monitor an inactive
condition would not constitute being "under a doctor's care."  Indeed, a reasonable
person would believe that everyone should have an established relationship with a
doctor who can monitor their physical condition and various ailments over time. 
Being "under a doctor's care," however, suggests a much more immediate and
serious treatment regimen than that which Edwards was undergoing on August 13,
2001.  At a minimum, then, a reasonable juror could have concluded that the term
"under a doctor's care" was ambiguous and that Edwards answered truthfully when
she completed her job application.  
     Similarly, a reasonable juror could have found that Edwards was truthful
when she indicated on her job application that she was not taking any medication.
Edwards' physician testified that he had prescribed her a thirty day dose of an
antibiotic on July 9, 2001, JA at 116 (Tr. at 48)  this prescription would therefore
have run out on approximately August 9, 2001.  Id.  Edwards even conceded at
trial that she took medication "up until just days" before completing Heartway's
questionnaire.  JA at 156 (Tr. at 88).  However, Heartway has not pointed to any
evidence at trial which demonstrates that Edwards was taking any medication on
August 13, 2001  the day she completed her job application.  The jury could thus
have concluded that Edwards was truthful when she indicated on her job
application that she was not "taking medications now."  JA at 128-29, 356 (Tr. at
60-61, EEOC's Trial Ex. 8) (emphasis added).
     In conclusion, this Court should not indulge Heartway's attempt to
improperly move the focus of this case from the relevant legal issues involved to
an attack on Edwards' credibility.<6> Given the egregious nature of the
discrimination in this case, it is not surprising that Heartway would attempt to shift
the attention away from the actions of its own facility administrator.   It is clear
from a legal perspective, however, that Townsend's discriminatory comments to an
EEOC investigator ("[i]f the clients found out about the employee having Hepatitis
C, they would have a mass exodus," "[w]ould you like to eat some food with her
blood on it?") and to Edwards ("you having Hepatitis C, you will not work in our
kitchen") were sufficient to support the jury's finding that Edwards was terminated
because of her disability  irrespective of whether the jury believed the plentiful
evidence that Edwards was honest when responding to the medical questions on
her job application.

                           CONCLUSION

     The expert trial testimony in this case, combined with the discriminatory
comments of the facility administrator, was more than sufficient to support the
jury's finding that Heartway regarded Edwards as substantially limited in the major
life activity of working.  It is equally clear that there is sufficient evidence to
support the jury's determination that Edwards was terminated because of her
disability, and not for allegedly lying on her job application.  This Court should
therefore uphold the jury's verdict in this matter, as well as the district court's
JMOL and JNOV rulings.  

       STATEMENT IN SUPPORT OF REQUEST FOR ORAL ARGUMENT
                                             
     The Commission believes that oral argument would materially assist this
Court in resolving the complex legal and factual issues presented by this
employment discrimination case.  In addition, the questions of when an individual
is covered by the ADA and when a punitive damage instruction can be submitted
to the jury are important to the Commission's statutory obligation of enforcing the
ADA.  The Commission therefore believes that a discussion of this and related
issues at oral argument would be beneficial to the Court.

                                   Respectfully submitted,
                                        
                                   JAMES L. LEE
                                   Deputy General Counsel

                                   LORRAINE C. DAVIS
                                   Acting Associate General Counsel
                                   
                                   CAROLYN L. WHEELER
                                   Assistant General Counsel
                                        
                    
                                   ____________________________
                                   JOSEPH A. SEINER
                                   Attorney
                                   Illinois State Bar No. 6257474

                                   U.S. EQUAL EMPLOYMENT        
                                   OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                   1801 L Street, N.W., Room 7018
                                   Washington, D.C.  20507
                                   (202) 663-4772
                                   joseph.seiner@eeoc.gov
                                                       
               

                    CERTIFICATE OF COMPLIANCE          

     I certify that this brief complies with the type-volume limitation set forth in
F.R.A.P. 32(a)(7)(B).  This brief contains 9436 words.  See Fed. R. App. P.
32(a)(7)(B)(i).  The brief was prepared using the WordPerfect 9 processing system,
in 14-point proportionally spaced type for text and 14-point type for footnotes.  See
Fed R. App. P. 32(a)(5).
                                        
                                             _____________________
                                                Joseph A. Seiner
                              
September 13, 2005
               



                      Certificate of Digital Submission

                                 
I, Joseph A. Seiner, hereby certify that:
                                 

1.     All required privacy redactions have been made (NONE);
     
2.     On September 13, 2005, I will send an email containing the attached brief in
digital form to the Tenth Circuit clerk's office at esubmission@ca10.uscourts.gov,
and to counsel for the defendant.  The document submitted in digital form will be
an exact copy of the written document filed with the Court, but for the signature
which appears in accordance with the Amended Emergency Order governing
digital filings in the 10th Circuit Court of Appeals.  
     
3.     The digital submissions have been scanned for viruses by the EEOC's virus
scanning software, and, according to this program, are free of viruses.  The EEOC
utilizes Symantec AntiVirus Corporate Edition.  The software was most recently
updated in September, 2005.

                                     _______________________
                                     JOSEPH A. SEINER
                                     Attorney        
                                     Illinois State Bar No. 6257474
                                     U.S. EEOC
                                     Office of General Counsel
                                     1801 L Street, N.W., Room 7018
                                     Washington, D.C.  20507
                                     (202) 663-4772
                                     joseph.seiner@eeoc.gov 
                                 

September 13, 2005



                      CERTIFICATE OF SERVICE

          I, Joseph A. Seiner, hereby certify that on the 13th day of September,
2005, I caused two copies of the attached brief to be sent via federal express
overnight mail (for delivery on September 14, 2005) to:


JEFFREY C. TASKER                            NEAL TOMLINS
KANE, RUSSELL,                               RONALD E. GOINS
COLEMAN & LOGAN, P.C.                        TOMLINS AND GOINS
3700 Thanksgiving Tower                      Utica Plaza Building
1601 Elm Street                              2100 South Utica, Suite 300
Dallas, Texas 75201                          Tulsa, Oklahoma 74114

ATTORNEYS FOR DEFENDANT
                                 
AND

Clerk of Court
U.S. Court of Appeals for the Tenth Circuit
1823 Stout Street
Byron White U.S. Courthouse
Denver, CO 80257
(sent original and seven copies of brief)
                                 

                                                      ______________________
                                                      JOSEPH A. SEINER
                                                      Attorney
                                                      Illinois State Bar No. 6257474
                                                      Equal Employment      
                                                      Opportunity Commission
                                                      Office of General Counsel
                                                      1801 L Street, N.W., Room 7018
                                                      Washington, D.C.  20507
                                                      (202) 663-4772
                                                      joseph.seiner@eeoc.gov


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

<1> By definition, in a regarded as case like this one, the employer takes an 
adverse action because it believes (albeit erroneously) that the employee is 
actually disabled.  See 42 U.S.C.  12102(2)(C).  As a practical matter, then, it 
is difficult to conceive of a situation in which an employer would take an adverse 
action knowing that it merely perceives the employee to be disabled.  If this Court 
were to impose such a requirement, it would be difficult, if not impossible, for a 
plaintiff ever to receive punitive damages in a regarded as case.

<2> In its opening brief, the Commission set forth a statement of facts that 
explained in detail the background of this case.  EEOC Opening Brief at 4-7. 
The Commission presents here the facts of the case that are specifically relevant 
to the issues on cross-appeal.

<3> Though Heartway styled the motion as one for judgment notwithstanding the 
verdict, Heartway should properly have moved for judgment as a matter of law. 
See Fed. R. Civ. P. 50.

<4> Commission regulations state that the following factors should be considered in 
determining whether an individual is substantially limited in working:  (1) the 
geographical area to which the individual has reasonable access; (2) the job from 
which the individual has been disqualified because of the impairment, and the 
number and types of jobs utilizing similar training, knowledge, skills or 
abilities, within that geographical area, from which the individual is also 
disqualified because of the impairment (class of jobs); and/or (3) the job from 
which the individual has been disqualified because of the impairment, and the 
number and types of other jobs not utilizing similar training, knowledge, skills or 
abilities, within that geographical area, from which the individual is also 
disqualified because of the impairment (broad range of jobs in various classes). 
29 C.F.R.  1630.2(j)(3)(ii); see also 29 C.F.R. pt. 1630 app.  1630.2(j); Compl. 
Man.  902.4(c); Sutton, 527 U.S. at 492 (citing these rules).

<5> There is some question in the record as to whether Edwards had scheduled 
appointments to visit her physician earlier than this six-month time frame. 
See, e.g., JA at 104, 155-59 (Tr. at 36, 87-91).

<6> Heartway also attempts to show that Edwards was not truthful on her job 
application by arguing that she lied when she stated that she had not been 
convicted of a crime.  JA at 170-71 (Tr. at 102-03); Heartway Brief at 5. While 
Edwards was convicted of accessory to petty theft when she was eighteen years old 
(JA at 171-72, Tr. at 103-04), there is no evidence that Townsend even knew of this 
conviction when he terminated Edwards.  JA at 174 (Tr. at 106).  Indeed, Townsend 
testified that he fired Edwards for being untruthful on her application by check
[ing] that she was not under a doctors care or [taking] any medication.  JA at 
263 (Tr. at 195).  Townsend did not even mention the undisclosed conviction as a 
basis for the termination, and Heartway does not argue that this evidence formed 
the basis of Edwards firing.  See id.  Thus, as there can be no question that this 
omission was not the basis for Edwards termination and thus has no legal relevance, 
Heartways emphasis on this evidence can only be characterized as an attempt to 
malign the plaintiffs character