IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT
____________________
No. 03-1878
_____________________


JOHN CHRISTOPHER SHAVER,
Plaintiff-Appellant,
v.


INDEPENDENCE STAVE COMPANY, 
INC., d/b/a SALEM WOOD PRODUCTS COMPANY,
et al.,
Defendants-Appellees.
_________________________________________________________


On Appeal from the United States District Court
for the Eastern District of Missouri, No. 4:01CV01354
The Honorable Charles A. Shaw, Presiding
_________________________________________________________


BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION AS AMICUS CURIAE IN SUPPORT OF 
PLAINTIFF-APPELLANT FOR REVERSAL 
_________________________________________________________
NICHOLAS M. INZEO
Acting Deputy General Counsel


PHILIP B. SKLOVER
Associate General Counsel
EQUAL EMPLOYMENT
CAROLYN L. WHEELER OPPORTUNITY COMMISSION
Assistant General Counsel Office of General Counsel
1801 L Street, N.W., Room 7020
JOSEPH A. SEINER Washington, D.C. 20507
Attorney (202) 663-4772


TABLE OF CONTENTS


TABLE OF AUTHORITIES ii


STATEMENT OF INTEREST 1


STATEMENT OF THE ISSUES 1


STATEMENT OF THE CASE 2
SUMMARY OF ARGUMENT 8


ARGUMENT 9
Shaver Presented Sufficient Evidence of Disability-Based 
Harassment. 9


A. The ADA Prohibits Disability-Based Harassment. 9


Shaver Satisfies the Elements of a Disability-Based 
Harassment Claim. 11


Shaver is a Qualified Individual with a Disability. 12 

The Harassment was Unwelcome. 17 

The Harassment was Based on Shaver's Disability. 18 

The Harassment Affected a Term, Condition, or 
Privilege of Employment. 19


The District Court Improperly Rejected Shaver's Retaliation Claim. 26 
CONCLUSION 30
CERTIFICATE OF COMPLIANCE


CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES 


FEDERAL CASES 


Boutros v. Canton Reg'l Transp. Auth., 
997 F.2d 198 (6th Cir. 1993) 22
Bradley v. Widnall, 
232 F.3d 626 (8th Cir. 2000) 11


Brown v. Lester E. Cox Med. Ctrs., 
286 F.3d 1040 (8th Cir. 2002) 15-16


Bruso v. United Airlines, Inc., 
239 F.3d 848 (7th Cir. 2001) 29


Bundy v. Jackson, 
641 F.2d 934 (D.C. Cir. 1981) 23
Burlington Indus., Inc. v. Ellerth, 
524 U.S. 742 (1998) . . . . . . .. . 17-18


Burns v. McGregor Elec. Indus., Inc., 
989 F.2d 959 (8th Cir. 1993) 22, 25


Cannon v. Univ. of Chi., 
441 U.S. 677 (1979) 11
Davidson v. Midelfort Clinic, 
133 F.3d 499 (7th Cir. 1998) 15


Delph v. Dr. Pepper Bottling Co., 
130 F.3d 349 (8th Cir. 1997) 22, 24


Diaz v. Swift-Eckrich, Inc., 
318 F.3d 796 (8th Cir. 2003) 20


Doane v. City of Omaha, 
115 F.3d 624 (8th Cir. 1997) 16-17


Duncan v. Gen. Motors Corp., 
300 F.3d 928 (8th Cir. 2002), cert. denied, 123 S. Ct. 1789 (2003) 19


Flowers v. S. Reg'l Physician Servs., 
247 F.3d 229 (5th Cir. 2001) 10-11
Fox v. Gen'l Motors Corp., 
247 F.3d 169 (4th Cir. 2001) 10-11, 18, 25-26


Havens Realty Corp. v. Coleman, 
455 U.S. 363 (1982) 29


Jeseritz v. Potter, 
282 F.3d 542 (8th Cir. 2002) 10-11


Kyles v. J.K. Guardian Sec. Sys., 
222 F.3d 289 (7th Cir. 2000) 28-29


Lawson v. CSX Transp. Inc., 
245 F.3d 916 (7th Cir. 2001) 14


Martinson v. Kinney Shoe Corp., 
104 F.3d 683 (4th Cir. 1997) 18


McKenzie v. Dovala, 
242 F.3d 967 (10th Cir. 2001) 12-13, 15


Meritor Sav. Bank v. Vinson, 
477 U.S. 57 (1986) 10


Miller v. Kenworth, 
277 F.3d 1269 (11th Cir. 2002) 22


Nichols v. Azteca Rest. Enters., Inc., 
256 F.3d 864 (9th Cir. 2001) 22-23
Otting v. J.C. Penney Co., 
223 F.3d 704 (8th Cir. 2000) 13-14


Patterson v. McLean Credit Union, 
491 U.S. 164 (1989) 10


Pedigo v. P.A.M. Transp., Inc., 
60 F.3d 1300 (8th Cir. 1995) 29


Robinson v. Shell Oil Co., 
519 U.S. 337 (1997) 27


Rodgers v. Western-Southern Life Ins. Co., 
12 F.3d 668 (7th Cir. 1993) 24-25


Ross v. Campbell Soup Co., 
237 F.3d 701 (6th Cir. 2001) 17


Ross v. Douglas County, 
234 F.3d 391 (8th Cir. 2000) 21


Sch. Bd. of Nassau County v. Arline, 
480 U.S. 273 (1987) 15-16
Shanoff v. Ill. Dep't of Human Servs.,
258 F.3d 696 (7th Cir. 2001) . . . . . . . . . . .. . 22 
Smith v. St. Louis Univ., 
109 F.3d 1261 (8th Cir. 1997) 21-22, 24, 26-27


Tate v. Apfel, 
167 F.3d 1191 (8th Cir. 1999) 13


Todd v. Ortho Biotech, Inc., 
175 F.3d 595 (8th Cir. 1999) 17


Wallin v. Minn. Dep't of Corr., 
153 F.3d 681 (8th Cir. 1998) 11


FEDERAL STATUTES, REGULATIONS, AND RULES 
Americans with Disabilities Act (ADA), 42 U.S.C.  12101 et seq. passim


42 U.S.C.  2000e-2 10


29 C.F.R. pt. 1630 12, 14, 16, 23


Fed. R. App. P. 29. 1


CONGRESSIONAL RECORD


136 Cong. Rec. S7422, S7444 (1990) (daily ed. June 6, 1990) 21




EEOC TECHNICAL ASSISTANCE


EEOC, Technical Assistance Manual on Title I of the ADA, 
8 FEP Manual (BNA) 405:6981, 7201-02 (Jan. 27, 1992) 23






STATEMENT OF INTEREST
The U.S. Equal Employment Opportunity Commission (EEOC or Commission)
 enforces Title I of the Americans with Disabilities Act (ADA), 42
 U.S.C.  12101 et seq. This case raises questions regarding the 
evidence necessary for claims of disability harassment and retaliation
 under the ADA. Because of the importance of these issues to the 
enforcement of the ADA, we offer our views to the Court under Fed.
 R. App. P. 29(a), which authorizes a government agency to file an 
amicus curiae brief "without the consent of the parties or leave of court." 
STATEMENT OF THE ISSUES (1)
1. Whether plaintiff, who had metal plates surgically implanted into
 his head as a result of severe epilepsy, was harassed on the basis
 of his disability when he was called "platehead," "stupid," "playing 
with half a brain," and told he was not "playing with a full deck" on 
a daily basis by supervisors and co-workers alike despite his frequent
 complaints. 
Fox v. Gen'l Motors Corp., 247 F.3d 169 (4th Cir. 2001)
Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000) 
Ross v. Douglas County, 234 F.3d 391 (8th Cir. 2000)
Delph v. Dr. Pepper Bottling Co., 130 F.3d 349 (8th Cir. 1997) 
42 U.S.C.  12102(2), 12112(a)
2. Whether plaintiff's employer illegally retaliated against him for 
filing a charge of discrimination by providing negative job references 
indicating that plaintiff was "looking for a get-rich-quick scheme" and
 was involved in "suing companies."
Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir. 1997) 
Kyles v. J.K. Guardian Sec. Sys., 222 F.3d 289 (7th Cir. 2000) 
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 
42 U.S.C.  12203(a)


STATEMENT OF THE CASE
John Shaver, now 37 years old, was diagnosed with epilepsy at the age of 
13. (App. at 967; Shaver Dep. at 14.) (2) Shaver would experience convulsive
 grand mal seizures at night in his sleep. (Id.) The after-effects of these
 seizures included disorientation, loss of appetite, and excessive sleeping,
 as Shaver would often sleep for 24 to 48 hours following a seizure. (Id.) 
Medication to control the seizures proved ineffective when Shaver reached 
adulthood. (App. at 966-67; Shaver Dep. at 9-10, 15.) Because of his epilepsy,
 Shaver was unable to work at all for four years and received Social Security
 benefits during that time. (App. at 966; Shaver Dep. at 9-10.) In 1994-95, 
Shaver underwent several operations over a nine-month period to help control
 his epilepsy. (App. at 967-68; Shaver Dep. at 15-17; App. at 1206-07; Letter 
of Dr. Sertl.) Surgeons cut the left side of his skull, pulled out the brain 
tissue, and removed 80% of his left hippocampus. (Id.) The brain was then put 
back and metal plates inserted to keep the section that was cut in place. (Id.) 
The surgery made Shaver's epilepsy more medically controllable, allowing Shaver
 to enter the workforce. (Id.)
In May 1998, Shaver became a production-line worker for Salem. (App. at 70-71; 
Defendant's Submission of Undisputed Facts.) Salem produces staves and headers
 for bourbon and wine barrels from uncut oak logs. (Id. at 71.) Shaver worked 
mainly with the Optimizer, a computer that finds the optimal place for cutting 
logs into stave length "bolts." (Id.) In June 1998, Shaver suffered a work-related
 injury when a loader hit him on the head, and was accompanied to the hospital
 by his assistant supervisor, Darren Cook, per company policy. (App. at 1149-50;
 Westerman Dep. at 19-21.) While at the hospital Cook learned that Shaver had a
 plate in his head. (App. at 1102, 1104; Weikel Dep. at 17, 25; App. at 752-53;
 Cook Dep. at 32-33; App. at 980-81, 983; Shaver Dep. at 68-69, 78.) On July 23,
 1998, Shaver's doctor wrote a letter to Salem regarding Shaver's injury and 
condition. (App. at 1206-07; Letter of Dr. Sertl; App. at 1032-33, Transano Dep.
at 60-63.) The doctor stated that of "significance is the fact that [Shaver] 
previously had brain surgery for epilepsy and had several operations between 
September of 1994 and March of 1995." (Id.) The doctor further indicated that
 his medical history was "significant for seizures," and that his diagnosis 
included "Epilepsy, status post brain surgery x 3." (Id.)
When Cook returned to work following Shaver's accident, he informed the other 
workers that Shaver had a plate in his head, and that Shaver's head could not
 be sewed together because of the plate. (App. at 1102, 1104, 1106; Weikel Dep.
 at 17, 25-26, 35-36.) Shaver's co-workers responded to Cook's statements with 
laughter. (Id.) From that moment through his termination over two years later,
 Shaver was subjected, on a daily basis, to ridicule, degrading comments and 
jokes, and other forms of harassment by both supervisors and co-workers alike.
 This harassment included: 
Cook called Shaver "platehead" to his face for two weeks following his injury 
and thereafter behind his back. (App. at 992; Shaver Dep. at 113-14; App. at
 1100, 1104; Weikel Dep. at 10-11, 28; App. at 813; Farris Dep. at 12.) 


Supervisors/Managers Mike Transano, Scott Westerman, Stanley Nelson and Assistant
 Supervisor Brad Paine also called Shaver "platehead" to his face, and Westerman,
 Nelson, and Paine did so on a daily basis. (App. at 980, 991-92; Shaver Dep. at 
67-68, 111-15; App. at 854; Lato Dep. at 25-28.) 


Westerman, a shift supervisor, introduced Shaver to new employees as "platehead,"
 and referred to Shaver as "platehead" several times each day. Westerman laughed 
at Shaver when he asked him not to call him "platehead." (App. at 980, 992; Shaver 
Dep. at 67-68, 114-15; App. at 825; Harrell Dep. at 11.) 

Westerman commented that others should watch out for Shaver because he was "only 
playing with half a brain" and referred to him as "stupid." Westerman also treated
 Shaver as if he were mentally handicapped by not letting him accomplish tasks, not
 listening to him, and blaming him when machinery would break down. (App. at 984,
 992; Shaver Dep. at 81-83, 114-15.) 
Nelson and maintenance worker Gene Stafford told Shaver that he should not be
 operating certain machinery because he "wasn't playing with a full deck." (App.
 at 986; Shaver Dep. at 91-92.) 

Stafford, one of Shaver's co-workers, called him "platehead" or something worse
 every time something went wrong around him and referred to him as stupid. 
Stafford considered Shaver to be "somewhat of a retarded person." (App. at 984-85;
 Shaver Dep. at 83-86; App. at 854; Lato Dep. at 26-28.) 

All of the maintenance men at the mill, as well as at least some of the cleanup 
crew, called Shaver "platehead." (App. at 980, 982; Shaver Dep. at 66, 74.) 


Beyond the insults and ridicule directed at Shaver in his presence, the
 belief that Shaver was disabled and thus could not perform as well as 
other employees permeated the mill. For example, someone questioned (in
 a non-joking manner) whether Shaver "pissed his pants and forgot who he
 was" when the microwave was turned on. (App. at 817, 820; Farris Dep. at
 25, 39-40.) One co-worker recalled that the term "platehead" was used
 more often than Shaver's real name. (App. at 871; Lato Dep. at 96.) Another
 co-worker testified that a supervisor would refer to Shaver as "platehead" 
95% of the time. (App. at 1104; Weikel Dep. at 28.) And some of Shaver's 
supervisors considered him too stupid for a position somewhere else, and 
would also refer to him as "dumb" or "stupid." (App. at 1100; Weikel Dep. 
at 11-12; App. at 814-815; Farris Dep. at 16-17; App. at 826-827; Harrell 
Dep. at 14-17.)
Shaver did not simply accept this barrage of demeaning insults, jokes, and 
comments. Rather, he informed the mill manager, Robbie McKenzie, as well as
 supervisors Westerman, Nelson, assistant supervisor Cook, and "half or 
better of the personnel" on his shift that the term "platehead" bothered 
him. (App. at 980, 982, 991-92; Shaver Dep. at 65-68, 74-75, 111-15.) Still
 the insults continued until his discharge in September 2000. (Id.) Even 
after Shaver complained to the mill manager, the harassment only stopped 
for approximately two to three weeks - then resumed and became even more
frequent. (App. at 980; Shaver Dep. at 67). On January 11, 2001, Shaver 
filed a charge of disability discrimination with the EEOC and the Missouri 
Commission on Human Rights. (App. at 242; EEOC Harassment Charge.) 
Following the filing of this charge, while Shaver was looking for another 
job, one of Shaver's supervisors told two prospective employers seeking 
references that Shaver was "looking for a get-rich-quick scheme" and was 
involved in "suing companies." (App. at 1094-95; Van Kirk Dep. at 40-41;
 App. at 1192, 1198; Wright Dep. at 28, 51.) Shaver thus filed a separate 
retaliation charge on June 7, 2001. (App. at 245; EEOC Retaliation Charge.)
 Shaver subsequently filed this action on September 17, 2001. (App. at 1; 
Complaint.) 
The district court granted Salem's motion for summary judgment on all of 
Shaver's federal claims and declined to exercise supplemental jurisdiction
 over Salem's state-law claim. With respect to Shaver's ADA claim, the court 
assumed without deciding that Shaver met the definition of a disabled person
 under either the "regarded as" or "record of" prongs of the statute. 2003 WL
 1203575, at *6 (E.D. Mo. Mar. 6, 2003). The court further acknowledged that
 this Court has implicitly recognized a hostile work environment claim under
 the ADA. Id. However, the court determined as a matter of law that while the 
"frequent reference" to Shaver as "platehead" may have been "insulting,
 mean-spirited, and unprofessional," it "was not so severe and extreme that 
a reasonable person would find that the terms and conditions of his employment
 had been altered." Id. The court also concluded that Shaver had waived any 
claim on the disclosure of confidential medical information by failing to raise
 it in a timely manner. Id. at *8. The court further held that the disclosure 
claim was "outside the scope of Shaver's administrative charges." Id. 
Finally, the court held that Shaver's retaliation claim failed because the 
court believed that Shaver was trying only to "test the waters" with the 
reference requests, and was not actually interested in another position at 
the time. Id. at *7. The court thus concluded that the negative job references
 did not create a "submissable" retaliation claim. Id.
SUMMARY OF ARGUMENT
The ADA prohibits harassment based on an individual's disability, and Shaver 
presented sufficient evidence to survive summary judgment on this claim. Shaver 
is protected by the ADA because of his history of severe epilepsy - a history 
his employer had knowledge of - and because his employer regarded him as 
substantially limited in the major life activity of thinking. There also 
can be little question that Shaver was harassed because of this disability 
when he was called "platehead," "stupid," "playing with half a brain," and 
told he was not "playing with a full deck" on a daily basis by supervisors 
and co-workers alike despite frequently complaining about these comments to 
all levels of management. This harassment was severe or pervasive in that it 
occurred daily, involved the illegal disclosure of confidential medical
 information, was targeted directly at Shaver, and was aimed at undermining
 his ability to perform his job.
With respect to Shaver's retaliation claim, by failing to view the evidence 
in the light most favorable to Shaver, the district court erroneously found 
that Shaver was trying only to "test the waters" by requesting a reference 
and was not actually seeking other employment. In any event, Shaver is not 
required to show that he was actively seeking another job to prevail on this 
retaliation claim. Although such a showing might affect the measure of Shaver's 
damages, it is irrelevant to establishing Salem's liability for retaliation.


ARGUMENT
I. Shaver Presented Sufficient Evidence of Disability-Based Harassment.


The ADA Prohibits Disability-Based Harassment. 
The ADA prohibits harassment based on an individual's disability. The ADA 
provides that an employer may not "discriminate against a qualified individual
 with a disability because of the disability of such individual in regard to . . . 
terms, conditions, and privileges of employment." 42 U.S.C.  12112(a) (emphasis 
added). Title VII of the Civil Rights Act of 1964 contains almost identical language
 making it unlawful for an employer "to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate against any individual with respect to his
 compensation, terms, conditions, or privileges of employment, because of such 
individual's race, color, religion, sex, or national origin[.]". 42 U.S.C.  
2000e-2(a) (emphasis added). 
The Supreme Court has recognized that this language in Title VII prohibits 
harassment. See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986) 
(Title VII violation established by proof that discrimination based on sex created
 a hostile or abusive work environment); Patterson v. McLean Credit Union, 491 U.S.
 164, 180 (1989) ("[H]arassment in the course of employment is actionable under Title
 VII's prohibition against discrimination in the 'terms, conditions, or privileges of
 employment.'") (emphasis added). As two circuits have explicitly held, and as this
 Court has assumed, the parallel language in the ADA likewise prohibits disability-based 
harassment. See Fox v. Gen'l Motors Corp., 247 F.3d 169, 175 (4th Cir. 2001) ("[W]e have
 little difficulty in concluding that the ADA, like Title VII, creates a cause of action
 for hostile work environment harassment."); Flowers v. S. Reg'l Physician Servs., 247
 F.3d 229, 234 (5th Cir. 2001) ("we follow the growing consensus that our harassment 
jurisprudence be extended to claims of disability-based harassment."); Jeseritz v. 
Potter, 282 F.3d 542, 547 (8th Cir. 2002) (assuming for purposes of analysis that
 ADA harassment claim exists and "would be modeled after the similar claim under 
Title VII") (quotation omitted); Wallin v. Minn. Dep't of Corr., 153 F.3d 681, 687-88
 (8th Cir. 1998) (same); see also Cannon v. Univ. of Chi., 441 U.S. 677, 696-98 (1979)
 (appropriate to assume Congress was aware of manner in which statutory language has
 been interpreted by the courts in drafting subsequent legislation and "reflects their
 intent" to have the new legislation interpreted similarly). Indeed, no circuit has
 held to the contrary. 
Shaver Satisfies the Elements of a Disability-Based 
Harassment Claim.


To establish a claim for disability-based harassment by supervisors, a plaintiff must
 show that (1) he is a qualified individual with a disability (2) who was subjected 
to unwelcome harassment (3) based on his disability (4) that was severe or pervasive
 enough to affect a term, condition, or privilege of his employment. See Flowers, 247 
F.3d at 235-36; Fox, 247 F.3d at 177; Bradley v. Widnall, 232 F.3d 626, 631 (8th Cir.
 2000). Shaver has satisfied all of these elements. (3)
1. Shaver is a Qualified Individual with a Disability.
It is undisputed that Shaver is qualified to perform his position as an Optimizer for 
Salem. Indeed, Shaver was hired for the position and performed adequately for over two
 years until his termination - which was the result of alleged insubordination rather 
than poor job performance. Moreover, assistant supervisor Cook testified that he considered
 Shaver to be "a good worker," and supervisor Westerman testified that Shaver worked hard.
 (App. at 700, 708; Cook Dep. at 19-20, 49; App. at 1159; Westerman Dep. at 57.) 
Shaver also is disabled under the terms of the statute. Disability is defined by the ADA 
as "(A) a physical or mental impairment that substantially limits one or more of the major 
life activities of such individual; (B) a record of such an impairment; or (C) being 
regarded as having such an impairment." 42 U.S.C.  12102(2). Shaver satisfies the last 
two prongs.
The "record of" provision of the disability definition applies where the individual has 
a history of a physical or mental impairment that, at some point in the past, substantially
 limited one or more major life activities. 29 C.F.R.  1630.2(k) (defining "record" to
 include "history"); see, e.g., McKenzie v. Dovala, 242 F.3d 967, 972 (10th Cir. 2001) 
(plaintiff must show that "at some point her impairment actually did substantially limit 
[a major life activity]").
Shaver's epilepsy, prior to his surgery in 1995, was a physical impairment that 
substantially limited the major life activities of sleeping, speaking, walking, 
and working. See, e.g., Otting v. J.C. Penney Co., 223 F.3d 704, 711 (8th Cir. 2000)
 (plaintiff with epilepsy was substantially limited in the major life activities of 
seeing, speaking, and walking). Prior to his surgery, there can be no question that 
Shaver's epilepsy was severe, as he experienced grand mal seizures at night in his
 sleep. See Tate v. Apfel, 167 F.3d 1191, 1194 n.3 (8th Cir. 1999) ("'A grand mal 
seizure is characterized by a loss of consciousness with generalized tonic-clonic
 seizures. A tonic-clonic seizure is a spasm consisting of a convulsive twitching 
of the muscles.'") (citation omitted). After a seizure, Shaver would experience 
disorientation, loss of appetite, and excessive sleeping as he would often sleep 
for more than a day following a seizure. Indeed, he needed major surgery to control
 the epilepsy to a point where he could go off disability benefits and enter the 
workforce. Shaver's epilepsy was at least as severe as the epilepsy experienced by
 the plaintiff in Otting, who experienced two to three seizures a month, lasting 
from 30 seconds to two minutes, during which she was unable to see, speak, or walk 
and felt the effects of the seizures for as long as 36 hours. 223 F.3d at 709-10. 
This Court found that Otting was disabled by her epilepsy. Id. See also Lawson v. 
CSX Transp. Inc., 245 F.3d 916, 927 (7th Cir. 2001) (jury issue exists on 
record-of-disability claim where diabetes substantially limited plaintiff's ability
 to work as plaintiff had recurring medical conditions and was unable to maintain 
any significant employment for a number of years).
Furthermore, Salem knew about this record of epilepsy. (4) Shaver's assistant 
supervisor Cook became aware of Shaver's condition in June 1998, when he accompanied 
him to the hospital for a work-related injury. Through Cook, and Cook's subsequent
 illegal disclosure of this information to others at Salem, the company was aware
 that Shaver had a record of a disability that resulted in brain surgery and the
 surgical implant of metal plates into his head. Additionally, Shaver's doctor
followed up the injury with a letter to Salem on July 23, 1998. The letter clearly
set forth that Shaver had epilepsy, that he had a history of seizures, and that his 
epilepsy was so severe that he had needed brain surgery to help minimize the effects
 of the impairment. There can be no serious contention that this document, in the 
possession of defendants, does not constitute a "record of" a disability. See McKenzie,
 242 F.3d at 972-74 (physicians' reports of past mental problems of which employer
 had knowledge sufficient to create jury issue as to existence of record of disability).
Shaver is also covered by the statute because he was regarded by Salem as having a 
disability. This type of coverage is closely intertwined with record-of coverage, 
reflecting a desire 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) 
(citation and quotation omitted); see also Davidson v. Midelfort Clinic, 133
 F.3d 499, 509 (7th Cir. 1998) (coverage extends to "people who have recovered
 from previously disabling conditions . . . but who may remain vulnerable to 
the fears and stereotypes of their employers"). Salem and its employees perceived 
Shaver as having an impairment - epilepsy - that substantially limited the major 
life activity of thinking. Shaver's supervisors and co-workers constantly referred 
to him as "platehead," a reference to the surgical device implanted as a result of 
Shaver's epilepsy. Management and co-workers alike perceived that this impairment
 substantially limited Shaver's cognitive functioning as compared to the average
 person. See Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045 (8th Cir. 2002)
 ("ability to perform cognitive functions on the level of an average person" is a 
major life activity).
Indeed, Shaver's supervisors would refer to him as "dumb" or "stupid" and say that
 he was not "playing with a full deck," was "only playing with half a brain," and 
was too stupid for a position somewhere else. Shaver was also treated by one supervisor
 as if he were mentally handicapped. Other employees were no better, believing that
 Shaver "pissed his pants and forgot who he was" when the microwave was turned on 
and that he was "somewhat of a retarded person." (See supra at 5-6.) These comments
 and actions demonstrate that the company perceived Shaver's epilepsy as substantially 
limiting his ability to think - to the point of mental retardation and disorientation. 
These condescending statements reflect precisely the kind of "attitudinal barriers" 
that are as "handicapping as are the physical limitations that flow from actual 
impairment." 29 C.F.R. pt. 1630 App. 1630.2(l) (quotation and citation omitted); 
(5) see also Doane v. City of Omaha, 115 F.3d 624, 628 (8th Cir. 1997) (plaintiff
 was regarded as substantially limited in the ability to see where decision-maker 
acknowledged that he perceived the plaintiff's visual problem as a significant 
limitation), overruled on other grounds by Sutton v. United Air Lines, Inc., 
527 U.S. 471 (1999); Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir. 2001)
 (employee with numerous back injuries may have been regarded as substantially 
limited in working where supervisor referred to him in a memo as a "problem person" 
with a "back case," his performance evaluations dropped, and he was invited to retire). 
The Harassment was Unwelcome. 
There can be no genuine dispute that the harassment Shaver suffered was unwelcome. 
Shaver asked both management and co-workers alike to stop referring to him as 
"platehead," including "half or better of the personnel on the B shift at the 
time." (App. at 980, 982, 991-92; Shaver Dep. at 65-68, 74-75, 111-15.) Still, 
the maintenance crew, some of the cleanup crew, and some of the supervisors 
continued to refer to Shaver as "platehead," and one supervisor even laughed 
when Shaver asked him to stop. (Id.; App. at 825; Harrell Dep. at 11). Shaver 
also informed the mill manager Robbie McKenzie about the problem, after which 
the harassment only stopped for approximately two to three weeks - then resumed
 and became even more frequent. (6) (App. at 980; Shaver Dep. at 65-68.) Another
 employee also informed at least one supervisor that Shaver did not like being
 called "platehead." (App. at 1005; Stidham Dep. at 13-14.)
The Harassment was Based on Shaver's Disability. 
The harassment here was based on Shaver's epilepsy. The references to Shaver
 as "platehead" refer to metal plates that were surgically implanted in his
 head to control his epilepsy. See Martinson v. Kinney Shoe Corp., 104 F.3d 
683, 686 (4th Cir. 1997) ("Whether [the company] fired [plaintiff] because
 he suffered from epilepsy or because of the 'specific attributes' of his 
disease, i.e., his seizures, is immaterial . . . the undisputed facts 
demonstrate that [the employer] discharged [plaintiff] because of a 
disability."). Were it not for Shaver's record of this disability, his 
supervisors and coworkers would not have had reason to call him this name.
 Indeed, the metal plates in Shaver's head are directly attributable to his 
history of epilepsy. See Fox, 247 F.3d at 179 ("terms such as 'handicapped MF,'
 and 'hospital people,' expressly referenced their disabilities and resulting
 medical restrictions" and were therefore "abuse directly attributable to
 [plaintiff's] medical condition"). In addition, the degrading comments
 that were directed at Shaver such as "stupid," not "playing with a full
 deck," and only "playing with half a brain" were directed at his ability to
 think - the perception being that because he had surgery in which part of
 his brain was removed, he could not cognitively function on par with his
 co-workers.
The Harassment Affected a Term, Condition, or Privilege of Employment. 
For harassment to be actionable, it must be severe or pervasive enough to
 affect the terms, conditions, or privileges of employment. A plaintiff 
must demonstrate that "the workplace is permeated with discriminatory 
intimidation, ridicule, and insult." Duncan v. Gen. Motors Corp., 300
 F.3d 928, 934 (8th Cir. 2002) (citation and quotation omitted), cert. 
denied, 123 S. Ct. 1789 (2003). The harassment must be "severe or 
pervasive" both subjectively and objectively. Id. The subjective 
component is not at issue here; Shaver unquestionably found his working 
environment to be hostile and complained about the constant intimidation, 
ridicule, and insult to which he was subjected. (See supra at 5-6). Shaver
 was angered and aggravated by the term "platehead." (App. at 982; Shaver 
Dep. at 73.) Shaver would think about this degrading name and lost sleep 
because of the ridicule to which he was subjected, and he felt pressure 
every day to prove to others that he was not stupid (App. at 987, 992; 
Shaver Dep. at 95-96, 116.) Shaver also believes that the harassment 
affected possible promotional opportunities that would have been available
 to him had he not been thought of as "not playing with a full deck" or
 using only "half a brain." (App. at 998; Shaver Dep. at 139-40).
From an objective standpoint, there is no question that the harassment 
here was pervasive. Shaver was taunted with the term "platehead" on a 
daily basis for over two years by both supervisors and co-workers. For 
example, a shift supervisor introduced Shaver to new employees as "platehead,"
 called him this name every day, and laughed when Shaver asked him to stop. An
 assistant supervisor referred to Shaver as "platehead" on a daily basis, 
including the final day of Shaver's employment. All of the maintenance men
 at the mill also called Shaver "platehead" as well as at least some of the
 cleanup crew. But the verbal assault did not stop there. Shaver's disability 
and subsequent brain surgery resulted in supervisors calling him "stupid,"
 (7) saying that he was only "playing with half a brain," and not "playing 
with a full deck," and treating him as if he were mentally retarded. (See 
supra 4-5.) No reasonable person should be expected to work in this type of
 environment. 
The harassment was also severe enough to alter the conditions of Shaver's 
employment and create an abusive working environment. It is true that the
 harassment that took place here was verbal in nature. Nonetheless, this
 type of constant and demeaning verbal barrage to which Shaver was subjected 
on a daily basis by supervisors and coworkers alike is exactly the type of
 behavior that the ADA was designed to prevent. See, e.g., 42 U.S.C.  12101(b) 
("It is the purpose of this chapter . . . to provide a clear and comprehensive
 national mandate for the elimination of discrimination against individuals
 with disabilities"). (8) 
This Court has recognized that constant verbal harassment can rise to the level
 of actionable harassment under Title VII (and thus, by analogy, under the ADA 
as well). See Ross v. Douglas County, 234 F.3d 391, 397 (8th Cir. 2000) (upholding 
jury verdict in favor of plaintiff where there was evidence at trial that employer
 "constantly referred to [plaintiff] by a racial epithet"); Smith v. St. Louis
 Univ., 109 F.3d 1261, 1264 (8th Cir. 1997) (derogatory gender-based comments 
occurring on a frequent basis enough to create triable issue of fact on harassment 
claim); Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 356 (8th Cir. 1997) 
(Court considers "only the evidence of racial epithets and the overt racial
 tone of certain comments" in holding that employee was subjected to racially 
hostile work environment); see also Burns v. McGregor Elec. Indus., Inc., 989
 F.2d 959, 966 (8th Cir. 1993) (holding that judgment should be entered for
 plaintiff on sexual harassment claim, Court stated that "[n]o female worker
 must endure continual verbal abuse"). Other courts have also concluded that 
acts of frequent verbal insults and jokes can constitute harassment. See, e.g., 
Miller v. Kenworth, 277 F.3d 1269, 1276 (11th Cir. 2002) ("As the Seventh Circuit
 has held, it is 'repeated incidents of verbal harassment that continue despite 
the employee's objections [that] are indicative of a hostile work environment' 
and not simply some 'magic number' of racial or ethnic insults.") (quoting Shanoff 
v. Ill. Dep't of Human Servs., 258 F.3d 696, 704 (7th Cir. 2001)); Boutros v. 
Canton Reg'l Transp. Auth., 997 F.2d 198, 200 (6th Cir. 1993) (finding jury 
question existed on issue of national-origin harassment where the record reflected 
"numerous disparaging ethnic stereotypical epithets [that] were directed towards 
[plaintiff] or stated in his presence, either by or with the knowledge of his 
supervisors, throughout his term of employment"); Nichols v. Azteca Rest. Enters.,
 Inc., 256 F.3d 864, 873 (9th Cir. 2001) ("we hold that a reasonable man would have 
found the sustained campaign of [sexually oriented] taunts, directed at [plaintiff]
 and designed to humiliate and anger him, sufficiently severe and pervasive to alter
 the terms and conditions of his employment"). At a minimum, then, the stream of
disability-related names and insults directed at Shaver creates a question for the
 factfinder as to whether Shaver was subjected to a hostile working environment.
Significantly, this harassment would never have occurred if Shaver's employer had 
not illegally disclosed confidential medical information about Shaver's brain 
surgery and metal plates. C.f., Bundy v. Jackson, 641 F.2d 934, 945 (D.C. Cir. 1981)
 (noting that harassment "always represents an intentional assault on an individual's 
innermost privacy"). Such a disclosure by the company is a clear violation of the ADA,
 which requires that "[a]n employer must keep any medical information on applicants or
 employees confidential" including "medical information that an individual voluntarily 
tells the employer." EEOC, Technical Assistance Manual on Title I of the ADA, 8 FEP
 Manual (BNA) 405:6981, 7201-02 (Jan. 27, 1992) (emphasis in original). (9) See also 
42 U.S.C.  12112(d); 29 C.F.R.  1630.14(d). Had Cook complied with the ADA and not
 improperly disclosed this information, it is likely that none of this harassment 
would have occurred. And because the illegal disclosure was advanced by someone in 
a position of authority and trust, the harassment was that much worse. See, e.g., 
Delph, 130 F.3d at 355 ("The two supervisors were primarily responsible for creating
 and maintaining the racially hostile atmosphere at [the company], which makes the
 behavior all the more egregious.").
Additionally, the comments here were not simply the result of joking or employee 
banter. First, the degrading remarks were targeted specifically at Shaver. See, 
e.g., Delph, 130 F.3d at 356 ("[T]his is not a situation where racial jokes and 
innuendo were merely bandied about the workplace with no particular target, or 
where [plaintiff] was called names behind his back but was unaware of it. Much 
of the racially hostile language not only was used in [plaintiff's] presence, but
 was directed at him."). In addition, the remarks were connected to Shaver's ability 
to do his job. Harassment that goes so directly to a plaintiff's ability to perform 
the job inherently undermines that individual's performance. See, e.g., Smith, 109 
F.3d at 1264 ("Even [harassing] conduct that does not seriously affect employees'
 psychological well-being, can and often will detract from employees' job performance,
 discourage employees from remaining on the job, or keep them from advancing their 
careers.") (quotation and citation omitted); Rodgers v. Western-Southern Life Ins.
 Co., 12 F.3d 668, 677 (7th Cir. 1993) ("unlawful racial abuse gradually eroded 
[plaintiff's] self-esteem and adversely affected his job performance"). And these
 comments were not simply idle observations of Shaver's disability - they were 
remarks intended to degrade and humiliate Shaver and question his intelligence. 
Such degrading comments are further evidence of the severity of the harassment here. 
See Burns, 989 F.2d at 965 (degrading comments support plaintiff's claims of sexual 
harassment).
Indeed, the facts of this case are remarkably similar to those confronted by the 
Fourth Circuit in Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001). In Fox, 
an individual experienced a non-work-related injury to his back and was restricted 
to light duty by his doctor. Id. at 172. As a result of the injury, co-workers and 
supervisors subjected the plaintiff to a barrage of verbal insults. The plaintiff
 and other disabled workers were called "handicapped MF's," "handicapped people," 
hospital people," and "911 hospital people." Id. at 173-74. And at a meeting held 
to discuss the plaintiff's back problems, the general foreman asked "[h]ow in the 
F---- do you take a S-H-I-T with these restrictions?" Id. at 173. The Fourth Circuit
 held that these facts, along with other harassment that was largely verbal, were 
sufficient to support a jury finding of disability harassment, stating, "[W]e are 
presented with evidence not of a few isolated incidents of harsh language, teasing 
or insensitivity, but rather of regular verbal harassment and occasional physical
 harassment over a period of nearly ten months directed at [plaintiff] because of 
his disability." Id. at 179. The facts of Shaver's case are arguably even more 
severe, as Shaver was subjected daily to discriminatory comments on the basis of 
his disability for over two years, despite having clearly expressed his displeasure
 with such remarks. See also Flowers, 247 F.3d at 236-39 (sufficient evidence to 
support jury verdict for employee harassed as a result of HIV status where harassment 
included verbal insults and other degrading behavior). 


The District Court Improperly Rejected Shaver's Retaliation Claim. 
In addition to prohibiting discrimination on the basis of a disability, the ADA - like
 Title VII - prohibits an employer from retaliating against an individual who has 
filed a charge of discrimination. 42 U.S.C.  12203(a). In this case, the elements 
of a retaliation claim require that an employee show that (1) he engaged in protected 
activity, (2) the employer took adverse action against him, and (3) there is a causal
 connection between the two events. See Smith v. St. Louis Univ., 109 F.3d 1261, 1265-1266
 (8th Cir. 1997). After Shaver filed his original EEOC charge, while he was looking for 
another job, a supervisor told two prospective employers that Shaver was "looking for a 
get-rich-quick scheme" and was involved in "suing companies." (App. at 1094-95; Van Kirk 
Dep. at 40-41; App. at 1192, 1198; Wright Dep. at 28, 51.) This type of negative reference
 constitutes illegal retaliation. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 
346 (1997) (former employees may bring suit against their previous employers for 
post-termination retaliation including negative job references); Smith, 109 F.3d at
 1266 (negative job references to prospective employers can establish retaliation 
under Title VII). Indeed, the negative job reference here specifically addresses the
 protected activity - "suing companies" - and there can be no question that Salem's 
retaliatory action was triggered by Shaver's protected activity of filing an EEOC charge.
The court improperly rejected this claim on the basis that Shaver was trying only to
 "test" Salem with the reference requests and was not actually interested in another
 job at that time. Dist. Ct. Op. at *7. However, Shaver proffered evidence that these 
job inquiries were genuine and not manufactured. Indeed, the prospective employers both 
testified that Shaver had sought employment with them and that they contacted Salem for 
a reference. (App. at 1089, 1093-94; Van Kirk Dep. at 17-19, 36-40; App. at 1187, 1191-92,
 1195; Wright Dep. at 6-7, 24-28, 38-39.) The court thus clearly made a factual finding 
that was inappropriate at the summary judgment stage of the litigation. 
Even assuming that Shaver was using the reference requests as a way to determine Salem's 
response, however, Salem's unlawful retaliation is nonetheless prohibited by the ADA. 
Giving negative references in retaliation for protected activity is illegal, regardless
 of whether the individual was genuinely seeking employment, because it is the conduct 
of the employer that is at issue in determining liability, not the motivation of the 
employee. See Kyles v. J.K. Guardian Sec. Sys., 222 F.3d 289, 298 n.5 (7th Cir. 2000) 
(noting in a hiring discrimination case that many individuals "apply for jobs that they 
have no genuine intent to accept if offered to them. They apply to inform themselves of 
alternate careers, for experience in interviewing . . . and for a whole host of other 
reasons. When an employer adversely segregates or categorizes such individuals on the 
basis of race, the wrong that Title VII proscribes still occurs."). 
The measure of damages for Salem's violation of the anti-retaliation provision might
 be affected by whether the negative reference caused Shaver not to get a job, but 
there should be no question that he would be entitled to some relief. See Kyles, 222
 F.3d at 300 ("The fact that they had no interest in actually working for the company 
certainly speaks to the nature and extent of their injuries as well as the appropriate
 relief. . . . But it does not rule out the prospect that they were injured.") (original
 emphasis). Indeed, interpreting similar language in the Fair Housing Act, the Supreme 
Court has held that individuals who are falsely told for discriminatory reasons that
housing is unavailable are entitled to relief even if they have no genuine interest 
in the property. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982) (A 
victim of discriminatory misrepresentation under the Fair Housing Act "has suffered 
injury in precisely the form the statute was intended to guard against, and therefore 
has standing to maintain a claim for damages under the Act's provisions" even if the 
victim "approached the real estate agent fully expecting that he would receive false 
information, and without any intention of buying or renting a home."). Furthermore, 
even if Shaver suffered no compensable injury as a result of Salem's retaliation, he 
would still be entitled to equitable relief, including an injunction prohibiting Salem 
from future acts of retaliation against him and others who might engage in protected 
activity. See, e.g., Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1303-04 (8th Cir. 1995)
 (even where monetary relief was precluded by ADA, injunctive relief may be considered by 
district court on remand); Bruso v. United Airlines, Inc., 239 F.3d 848, 864-65 (7th Cir.
 2001) (employee who established claim of Title VII retaliation entitled to "injunction 
prohibiting further retaliation"). Thus, even under the court's improper factual finding
 that Shaver was only trying to "test the waters," summary judgment should not have been
 granted on Shaver's retaliation claim. 


CONCLUSION
For the foregoing reasons, the Commission urges this Court to reverse the district court's
 grant of summary judgment on Shaver's disability harassment and retaliation claims. 
Respectfully submitted,


NICHOLAS M. INZEO
Acting Deputy General Counsel
PHILIP B. SKLOVER
Associate General Counsel


CAROLYN L. WHEELER
Assistant General Counsel




___________________________
JOSEPH A. SEINER
Attorney
Equal Employment 
Opportunity Commission
Office of General Counsel
1801 L Street, N.W., Room 7020
Washington, D.C. 20507
(202) 663-4772




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 6989 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


June 4, 2003














CERTIFICATE OF SERVICE
I, Joseph A. Seiner, hereby certify that on the 4th day of June, 2003, I caused 
(1) copies of the attached brief, (2) a diskette (which has been scanned for 
viruses and is virus-free) containing the brief in a PDF format, and (3) my 
appearance to be sent via first class U.S. mail to:
Clerk of Court Marie L. Gockel
U.S. Court of Appeals Bratcher & Gockel
for the Eighth Circuit 1100 Main Street
Thomas F. Eagleton Courthouse P.O. Box 26156
Room 24.329 Kansas City, MO 64196-6156
111 South 10th Street Attorney for Plaintiff-Appellant
St. Louis, MO 63102


Thomas M. Hanna
McMahon & Berger
2730 N. Ballas Road
Suite 200 
St. Louis, MO 63131
Attorney for Defendant-Appellee






__________________________
Joseph A. Seiner
EEOC / Office of General Counsel
1801 L Street, N.W., Room 7020
Washington, D.C. 20507
(202) 663-4772




June 4, 2003 
1. We take no position on any other issue raised in this appeal. 
2. Citations to App. refer to the designation of record on appeal submitted by Shaver. 
3. The harassment test for supervisors is appropriate here because much of the
 harassment at issue was perpetuated by supervisors at the mill. See Bradley, 
232 F.3d at 631 ("[Plaintiff] need not show that the [defendant] knew or should
have known of the harassment, however, because the majority of the conduct at 
issue in this case allegedly occurred at the hands of Bradley's supervisors.").
 Even if the co-worker test for liability were applied, however, there would be 
no question that Salem was aware of the harassment which took place, yet failed 
to take appropriate remedial action. Indeed, Shaver informed the mill manager as
 well as at least two supervisors about the problem, but the harassment continued. 
4. While Salem unquestionably had knowledge that Shaver had a history of a 
substantially limiting impairment, the statute contains no knowledge requirement
 - all that is required for purposes of coverage is a history of a disability. 
See 42 U.S.C.  12102(2)(B); 29 C.F.R.  1630.2(k). To establish liability for 
disability based harassment, there must be evidence that the employer was aware
 of the individual's history sufficient to support the conclusion that the 
harassment was "because of" that history. The evidence is more than sufficient
 in this case. 
5. The Supreme Court has acknowledged the barriers faced by individuals
 suffering from epilepsy. See Arline, 480 U.S. at 284 ("Even those who suffer
 or have recovered from such noninfectious diseases as epilepsy or cancer have
 faced discrimination based on the irrational fear that they might be contagious."). 
6. Shaver's consistent complaints about the company's harassing behavior and 
Salem's failure to respond adequately demonstrate that Salem cannot satisfy the 
Faragher and Ellerth affirmative defense. Shaver clearly took advantage of any 
"preventive or corrective opportunities provided by the employer," yet Salem did
 virtually nothing to correct the problem. See Todd v. Ortho Biotech, Inc., 175 
F.3d 595, 597 (8th Cir. 1999) (quoting Burlington Indus., Inc. v. Ellerth, 524 
U.S. 742 (1998)). 
7. Even assuming the term "stupid" was not directly related to Shaver's epilepsy, 
when viewed in the context of the other comments, it is tinged with discriminatory 
animus. See, e.g., Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 799 (8th Cir. 2003)
 ("All instances of harassment need not be stamped with signs of overt discrimination
 to be relevant under Title VII if they are part of a course of conduct which is
 tied to evidence of discriminatory animus . . . . [A co-worker's] early comments,
 in which she demeaned Hispanics and specifically referred to both Hispanics and
 [plaintiff] as 'stupid,' are sufficient for a fact-finder to find that her ongoing 
harassment of [plaintiff] was based on her national origin." (quotation omitted)). 
8. Indeed, Congress was aware of the myths and stereotypes surrounding epilepsy. See
 136 Cong. Rec. S7422, S7444 (1990) (daily ed. June 6, 1990) (statement of Sen. Harkin)
 ("[T]he fear of epilepsy was once so great that people with this disease were believed
 to be possessed by the devil and were shut out of schools and the workforce."). 
9. Although the district court rejected on procedural grounds Shaver's separate claim 
for violation of the ADA's confidentiality provisions, at a minimum, Salem's illegal 
disclosure of private information adds to the severity of the harassment in this case.