_____________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________________________________

No. 07-20661
____________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
	Plaintiff-Appellant,

v.

CHEVRON PHILLIPS CHEMICAL CO., LP,
	Defendant-Appellee.


On Appeal from the United States District Court
for the Southern District of Texas

REPLY BRIEF OF THE EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION AS APPELLANT





RONALD S. COOPER
General Counsel

CAROLYN L. WHEELER
Acting Associate General Counsel

VINCENT J. BLACKWOOD
Assistant General Counsel

ELIZABETH E. THERAN
Attorney



EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C.  20507
(202) 663-4720
elizabeth.theran@eeoc.gov


                        TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . .  ii

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

ARGUMENT. . . . . . . . . . . .     2

CONCLUSION. . . . . . . . . . . .  29

CERTIFICATE OF COMPLIANCE. . .     30

CERTIFICATE OF SERVICE. . . . . .  31


                          TABLE OF AUTHORITIES

                                 CASES

Auguster v. Vermillion Parish School Board, 
	249 F.3d 400 (5th Cir. 2001). . . . . . . . . . . . . . .        12-13 & n.4

Bauer v. Albemarle Corp., 169 F.3d 962 (5th Cir. 1999). . . . . . . . . . . . . . 13

Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997). . . . . . . . . . . .  2, 3, 5

Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999). . . . . . . . . . . . . . . . . . 10

Dibidale of Louisiana, Inc., v. American Bank & Trust Co., 
	916 F.2d 300 (5th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . .  7

Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000). . . . . . 8

Ellison v. Software Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996). . . . . . . . .   5

Jacques v. DiMarzio, 200 F. Supp. 2d 151 (E.D.N.Y. 2002), 
	aff'd, 386 F.3d 192 (2d Cir. 2004). . . . . . . . . . . . . . . . . .    5-6

Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir. 1980). . . . . . . . . . . .  7

Preston v. Tenet Healthsystem Memorial Medical Center, Inc., 
	485 F.3d 804 (5th Cir. 2007). . . . . . . . . . . . . . . . . . . . .     12

Ramirez v. Landry's Seafood Inn & Oyster Bar, 
	280 F.3d 576 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . .  7

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). . . . . .    19-20

Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc). . . . . .   14

Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998). . . . . . . . . . . .   6

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893 (5th Cir. 2002). . . . . . . . . 19

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183 (3d Cir. 2003). . . . . .  22-23

Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th Cir. 1998). . .13 n.4, 23, 24

Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997). . . . . .    20, 23

S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489 (5th Cir. 1996). . . . . . . .   8

Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996). .     26, 27

Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). . . . . .  20

Turner v. Baylor Richardson Medical Center, 476 F.3d 337 (5th Cir. 2007). . . . .  7

United States v. Norman, 415 F.3d 466 (5th Cir. 2005). . . . . . . . . . . . . .  12

Vadie v. Mississippi State University, 218 F.3d 365 (5th Cir. 2000). . . . . . .  14

Weese v. Schukman, 98 F.3d 542 (10th Cir. 1996). . . . . . . . . . . . . . . . 10-11

West v. Nabors Drilling USA, Inc., 330 F.3d 379 (5th Cir. 2003). . . . . . . .    20

Wyvill v. United Companies Life Insurance Co.,
	212 F.3d 296 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . .    13-14

Zirpel v. Toshiba America Information Systems, Inc.,
	111 F.3d 80 (8th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . 5



                                STATUTES & RULES

42 U.S.C.  12203(b). . . . . . . . . . 22

Fed. R. App. P. 32(a)(5). . . . . . . . 30

Fed. R. App. P. 32(a)(6). . . . . . . . 30

Fed. R. App. P. 32(a)(7)(B). . . . . .  30

Fed. R. Evid. 201(b). . . . . . . . . . 12

Fed. R. Evid. 701. . . . . . . .    10, 11


                             OTHER AUTHORITIES

30B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 
 7059 (interim ed. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . .  12

Section 8, Retaliation, 2 EEOC Compliance Manual 8-6 (BNA) (2003), 
	available at http://www.eeoc.gov/policy/compliance.html. . . . . . . . .  23

EEOC Enforcement Guidance: Reasonable Accommodation and Undue 
Hardship Under the ADA (Oct. 17, 2002), available at 
http://www.eeoc.gov/policy/docs/accommodation.html. . . . . . . . . . . . . . . . 28

Centers for Disease Control & Prevention, CFS Basic Facts, May 9, 2006, 
http://www.cdc.gov/cfs/cfsbasicfacts/htm. . . . . . . . . . . . . . . . . . . .   11

Massachusetts CFIDS Ass'n, Chronic Fatigue & Immune Dysfunction Fact 
Sheet, at http://www.masscfids.org/html/CFIDS_Fact_Sheet_2002.htm 
(last visited Feb. 21, 2008). . . . . . . . . . . . . . . . . . . . . . . .    11-12


                                  INTRODUCTION

     The Commission alleges that Chevron Phillips Chemical Company 
("CPChem") violated Title I of the Americans with Disabilities Act ("ADA") when 
it fired Lorin Netterville because she had Chronic Fatigue Syndrome ("CFS"), a 
disability within the meaning of the ADA, and because she requested a reasonable 
accommodation.  The district court granted summary judgment for CPChem, 
holding that Netterville was not disabled under the statute because her physical 
impairments were "short-lived, non-permanent, and non-severe." The court also 
held that CPChem had adduced a legitimate nondiscriminatory reason for 
Netterville's termination - falsification of information on her post-offer medical 
questionnaire - which the Commission failed to show was a pretext for disability 
discrimination or retaliation.
     In our opening brief ("EEOC-Br."), we argued that there was sufficient 
evidence in the record to support a finding that Netterville was a qualified 
individual with a disability because she had CFS, which substantially limited her in 
one or more major life activities. We also argued that a reasonable jury could find 
that CPChem's proffered reason for terminating Netterville was a pretext for both 
disability discrimination and retaliation for her request for an accommodation, 
based on the entire course of CPChem's conduct toward Netterville following her 
disclosure of her condition.  Finally, we argued that the record would support a 
finding that CPChem failed to engage in the ADA's mandatory interactive process 
with Netterville with respect to her request for an accommodation, but instead 
immediately began searching for grounds to terminate her employment.
     In its brief as Appellee ("CPChem-Br."), CPChem distorts the factual record 
in this case and the Commission's arguments on appeal, and makes several 
fundamental errors in its analysis of how the ADA applies to the facts of this case.  
We submit this reply brief to clarify the factual record, to respond to CPChem's 
mischaracterizations of our positions on appeal, and to respond to CPChem's legal 
arguments.

                                   ARGUMENT

     1.  We begin by noting what CPChem does not say in its brief as Appellee:  
CPChem offers no response to our arguments that sleeping, caring for oneself, and 
thinking, concentrating, and/or cognitive function constitute major life activities 
within the meaning of the ADA.  In its brief, CPChem suggests that there is some 
inconsistency between the position we take on appeal and the position we took 
below with respect to this Court's position on sleeping as a major life activity.  See 
CPChem-Br.-iii.  However, both in our summary judgment brief and in our 
opening brief on appeal, we pointed to the same case - Burch v. Coca-Cola Co., 
119 F.3d 305 (5th Cir. 1997) - and gave the same, accurate recounting of this 
Court's statement in Burch that sleeping "could" be a major life activity under the 
ADA.  In our opening brief, we noted that this Court did not so hold expressly in 
that case, and we asked the Court to join every other federal court of appeals to 
have considered the issue and to so hold in this case.  See EEOC-Br. at 29-30 
(citing cases).
     In its brief, CPChem offers no cogent response to our argument that 
Netterville was substantially limited in any of the three admitted major life 
activities at issue.  CPChem asserts that the Commission "mistakenly" downplayed 
the mitigating effect of Netterville's medication on her CFS symptoms (CPChem-
Br.-38-39), but the mistake here is CPChem's, not the Commission's.  As we 
explained in our opening brief, the uncontroverted medical evidence in the record 
reflects that, at the time when Netterville disclosed her CFS to CPChem and made 
her initial request for medical leave, on February 5, 2003, her symptoms were 
under very poor control and were not responsive to medication.  EEOC-Br.-7-9, 
40-41.  It was only during the two-week period when Netterville was out on 
medical leave that she even began treatment with the medications that would 
ultimately give her some relief from her symptoms.  EEOC-Br.-19-20.  Netterville 
returned to work on Friday, February 21, 2003; CPChem suspended her without 
pay on Wednesday, February 26, and fired her the next day, Thursday, February 
27.  EEOC-Br.-12-14.  Thus, the EEOC's characterization of the record in our 
opening brief as to Netterville's condition and her response to medication is 
accurate: during almost the entire time frame at issue here, with the exception of 
the last few days, during which CPChem was already actively seeking to terminate 
Netterville's employment, her CFS was not responsive to medication.  CPChem 
points to no evidence to suggest otherwise.
     Indeed, CPChem's own internal e-mails make it perfectly clear that the 
relevant time period for the employment decision in this case begins well before 
Netterville's symptoms began to respond to medication.  The internal 
correspondence reflects that, no sooner did Netterville make her request for 
medical leave on February 5, 2003, than Gary Thurman and Steve Rugeley began 
corresponding about whether she could be fired for failing to disclose CFS on her 
medical questionnaire.  P-RE-T.11 (ROA-741-42).<1> The record is clear: CPChem 
had made up its mind about Netterville's future employment with the company 
well before it could have known whether her symptoms would improve with 
medication. 
     CPChem also attempts to portray the magistrate judge's holding in this case 
that Netterville's CFS was insufficiently "permanent" to constitute an ADA 
disability as "wholly in line with this Court's decisions" on the subject.  CPChem-
Br.-36.  Here, again, CPChem is mistaken, and misstates this Court's rulings.  In 
Burch, this Court found that the plaintiff, who was an alcoholic, was not disabled 
within the meaning of the ADA - not because his condition was not permanent, 
but because of the nature of the evidence of his impairments, which resulted 
primarily from inebriation itself and hangovers the next day.  See Burch, 119 F.3d 
at 316 ("Although Burch's alcoholism may have been permanent, he offered no 
evidence that he suffered from any substantially limiting impairment of any 
significant duration.").  And in Ellison v. Software Spectrum, Inc., this Court 
considered the specific question of whether a plaintiff undergoing treatment for 
cancer was substantially limited in working within the meaning of the ADA.  This 
Court concluded - saying nothing about permanence vel non - that "[o]bviously, 
her ability to work was affected; but, as reflected in the [] statute and regulations, 
far more is required to trigger coverage under  12102(2)(A)."  Ellison, 85 F.3d 
187, 191 (5th Cir. 1996).
     Most of the other authorities cited by CPChem in support of its 
"permanence" argument are factually distinguishable from this case, and actually 
support the Commission's position on this issue.  See Zirpel v. Toshiba Am. Info. 
Sys., Inc., 111 F.3d 80, 81 (8th Cir. 1997) (holding that plaintiff's panic disorder, 
which caused only "infrequent, mild attacks," and which the plaintiff admitted did 
"not usually limit her activities," was not substantially limiting under the ADA); 
Jacques v. DiMarzio, 200 F. Supp. 2d 151, 158 (E.D.N.Y. 2002) (plaintiff not 
substantially limited in caring for herself based on both severity and duration of her 
impairment where she had difficulty caring for herself only during a single six-
month period following a car accident; and even then, she admitted, her symptoms 
"did not affect her ability to take care of her home, to have a normal social life, or 
to attend to her personal hygiene"), aff'd, 386 F.3d 192, 204 (2d Cir. 2004) (same).  
The Second Circuit's decision in Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d 
Cir. 1998), is both distinguishable and wrongly decided.  In Ryan, the court held 
that the plaintiff's ulcerative colitis - a condition that the court acknowledged was 
"permanent" and likely to "trouble her for the rest of her life" - was not 
substantially limiting because the plaintiff "will not at all times suffer from the 
symptoms (and concomitant limitations) of her colitis." 135 F.3d at 871.  The 
plaintiff in Ryan also testified that she suffered "severe symptoms only in the 
summer months."  Id.  Netterville's CFS symptoms were of significantly longer 
duration than Ryan's, lasting approximately six months, but, more importantly, as 
we noted in our opening brief, the Second Circuit's reasoning in Ryan is at odds 
with the reasoning of the Fourth, Sixth, and Seventh Circuits, as well as this 
Court's reasoning in at least one unpublished decision and the Commission's 
reasoning in its Compliance Manual.  See EEOC-Br. 38-40.  This Court has 
already indicated that it is not inclined to agree with Ryan's reasoning, and it 
should not reverse course now.
     CPChem also argues that there is no genuine issue of material fact as to 
whether Netterville is disabled based on purported "inconsistencies" in her 
testimony with respect to the nature and severity of her condition.  Initially, we 
note that, even if Netterville had offered inconsistent testimony on this or any other 
subject, this would not constitute grounds for this Court to grant summary 
judgment to the defendant.  As this Court has explained,
In reviewing a motion for summary judgment, the court must consider 
all of the evidence before it, including affidavits that conflict with 
deposition testimony.  A genuine dispute of material fact may be 
raised by such an affidavit "even if it conflicts with earlier testimony 
in the party's deposition." . . . To the extent they exist, discrepancies 
in those averments present credibility issues properly put to the trier-
of-fact.  Credibility assessments are not fit grist for the summary 
judgment mill.

Dibidale of La., Inc., v. Am. Bank & Trust Co., 916 F.2d 300, 307 (5th Cir. 1990) 
(quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980)) 
(internal citations omitted); see also, e.g., Turner v. Baylor Richardson Med. Ctr., 
476 F.3d 337, 343 (5th Cir. 2007) (on summary judgment, "we consider all of the 
evidence in the record but refrain from making credibility determinations or 
weighing the evidence"); Ramirez v. Landry's Seafood Inn & Oyster Bar, 280 F.3d 
576, 578 n.3 (5th Cir. 2002) (observing that "resolving conflicts in testimony is the 
exclusive province of the trier of fact and may not be decided at the summary 
judgment stage").  The cases cited by CPChem in its brief (CPChem-Br.-42) do not 
hold otherwise; rather, they simply stand for the proposition that, as this Court put 
it, "a plaintiff may not manufacture a genuine issue of material fact by submitting 
an affidavit that impeaches prior testimony without explanation. . . . [A] 
nonmoving party may not manufacture a dispute of fact merely to defeat a motion 
for summary judgment."  Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th 
Cir. 2000) (citing, inter alia, S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 
(5th Cir. 1996)) (emphases added).
     In any case, CPChem's version of the facts is incorrect.  In its brief, 
CPChem does not point to a single instance where Netterville's testimony in her 
affidavit or before the magistrate judge at the evidentiary hearing (the latter a body 
of evidence CPChem conveniently ignores) actually conflicts with the testimony 
she gave at her deposition with respect to her CFS symptoms.  Most of 
Netterville's deposition concerned matters other than CFS symptoms, but what 
testimony she gave on the subject was entirely consistent with her later testimony 
in her affidavit and before the magistrate.  R.46-Exh.1; ROA-544-45 (listing 
medications, describing "brain fog"); ROA-546 (foggy brain, lacking energy, 
inability to think clearly); ROA-563 (bone and joint trouble, leg stiffness, severe 
hand pain); ROA-566-67 ("don't have a life," weekends spent in bed to recuperate, 
constant pain, "foggy brain," depression, neck and shoulder pain, needing 16 
hours' rest for every 8 hours' activity, vision problems, sleep apnea); ROA-570 
(foggy brain, aphasia); ROA-571-73 (depression, extreme fatigue, falling asleep 
behind the wheel of the car and being awakened by the rumble strip, arm and leg 
pain, restless leg syndrome, vision problems).<2>
      Netterville's affidavit and her extensive testimony at the evidentiary hearing 
called by the magistrate, at which the magistrate personally cross-examined 
Netterville, provide a more detailed account of Netterville's symptoms than her 
deposition testimony.  However, this does not make her later statements 
"inconsistent" with her earlier testimony.  Netterville certainly could not have been 
expected to answer questions at her deposition that were never posed to her, and 
there are no instances where she testified in her deposition that she could perform a 
certain task, or that she did not suffer a certain symptom, that she later claimed to 
be a problem.  Accordingly, considering all the evidence in the record pertaining to 
Netterville's symptoms, there was sufficient evidence to support a finding that she 
was substantially limited in one or more major life activities, and a jury, rather than 
the magistrate judge alone, should have been given the opportunity to weigh this 
evidence and draw its own conclusions.
     Finally, CPChem's assertion that the Commission relied on inadmissible 
"expert" testimony by Dr. Salvato in our opening brief has no effect on the 
arguments we advanced in our opening brief.  The magistrate judge made it clear, 
both in her initial ruling and in her opinion granting summary judgment, that Dr. 
Salvato, as Netterville's treating physician, could offer admissible testimony as a 
fact witness.  See R.37-1-2 (ROA-225-26) ("Plaintiff may call Netterville's 
physician as a fact witness and, accordingly, the physician's testimony is limited to 
factual matters covered in her treating notes."); P-RE-T.5-9 (ROA-931) ("[T]he 
court will consider Dr. Salvato's testimony relating to matters that she personally 
observed during Netterville's doctor visits and those statements made by 
Netterville that were pertinent to Dr. Salvato's diagnosis or treatment.")  One of 
the statements that CPChem identifies as allegedly constituting "expert" testimony 
- Dr. Salvato's assertion that she expected Netterville's condition to be 
permanent (CPChem-Br.-40) - is directly relevant to her diagnosis and treatment 
of Netterville.  This is unquestionably fact witness testimony, and admissible as 
such.  See, e.g., Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999) (a treating 
physician may legitimately offer opinion testimony as a lay witness pursuant to 
Fed. R. Evid. 701); Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 1996) ("under 
Fed. R. Evid. 701, a lay witness may testify as to any opinion '(a) rationally based 
on the perception of the witness and (b) helpful to a clear understanding of the 
witness' testimony or the determination of a fact in issue,'" and "any opinions 
offered by [the physician testifying as a lay witness] were based on his experience 
as a physician and were clearly helpful to an understanding of his decision making 
process in the situation").
     CPChem also complains of two instances where Dr. Salvato explained 
generally what CFS is, that it is recognized by the Centers for Disease Control, and 
how it is diagnosed.  However, this information is readily available in the public 
domain from a variety of reliable sources, including two that we cited for other 
purposes in our opening brief (one of which was in the record below).  See, e.g., 
Centers for Disease Control & Prevention, CFS Basic Facts, May 9, 2006, 
http://www.cdc.gov/cfs/cfsbasicfacts/htm (CFS fact sheet from Centers for Disease 
Control web site); see also id. (noting that "[t]here are no diagnostic laboratory 
tests for CFS"); Massachusetts CFIDS Ass'n, Chronic Fatigue & Immune 
Dysfunction Fact Sheet<3> (observing that "CFIDS is recognized by the National 
Institute of Health (NIH), Centers for Disease Control (CDC), Food and Drug 
Administration (FDA) and Social Security Administration (SSA) as a serious, 
often disabling illness.  It is marked by unrelenting exhaustion, muscle pain, 
cognitive disorders that patients call 'brain fog,' and a myriad of other physical 
symptoms.").  This kind of information is subject to judicial notice.  See, e.g., 
Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 804, 817 & n.6 
(5th Cir. 2007) (taking judicial notice of devastating effects of Hurricane Katrina in 
Louisiana; noting that, "[p]ursuant to Fed. R. Evid. 201(b), this court may take 
judicial notice of facts 'generally known within the territorial jurisdiction of the 
trial court' or 'capable of accurate and ready determination by resort to sources 
whose accuracy cannot reasonably be questioned'"); United States v. Norman, 415 
F.3d 466, 474 (5th Cir. 2005) (statements in learned treatises not excluded by 
hearsay rule to the extent established as reliable authority by, inter alia, judicial 
notice); see also 30B Charles Alan Wright & Arthur R. Miller, Federal Practice & 
Procedure  7059 (interim ed. 2007).
     2.  As we argued in our opening brief, there is evidence in the record from 
which a reasonable jury could find that CPChem's proffered reason for firing 
Netterville was a pretext for discrimination on the basis of her disability and 
because she requested a reasonable accommodation under the ADA.  In its brief, 
CPChem, again, distorts both the Commission's arguments and the facts in the 
record, as well as the governing legal standard.
     As this Court held in Auguster v. Vermillion Parish School Board, in order 
to persuade the trier of fact that an employer's proffered nondiscriminatory reason 
for an employment action was a pretext for discrimination, a plaintiff must produce 
"'enough [evidence] to support a reasonable inference that the proffered reason is 
false; a mere shadow of a doubt is insufficient.'"  249 F.3d 400, 403 (5th Cir. 
2001) (quoting Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) 
(internal citation omitted)).<4> In arguing that the evidence in this case is 
insufficient, CPChem presents a distorted and inaccurate account of the facts in the 
record with respect to what Netterville told CPChem and CPChem's response - 
an account that also fails to draw all inferences in favor of the nonmoving party, as 
required on summary judgment.
     On summary judgment, the issue is whether, taken as a whole, there is 
evidence in the record from which a reasonable jury could conclude that the 
employer's proffered nondiscriminatory reason for its actions is false and that 
discrimination is the real reason.  See, e.g., Wyvill v. United Cos. Life Ins. Co., 
212 F.3d 296, 301 (5th Cir. 2000) (in ADEA case, "[a] jury issue will be presented 
and a plaintiff can avoid summary judgment . . . if the evidence taken as a whole 
(1) creates a fact issue as to whether each of the employer's stated reasons was 
what actually motivated the employer and (2) creates a reasonable inference that 
age was a determinative factor in the actions of which the plaintiff complains") 
(quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en 
banc)) (emphasis added); Vadie v. Miss. State Univ., 218 F.3d 365, 372 (5th Cir. 
2000) ("An employer is entitled to judgment as a matter of law on this ultimate 
question [of discrimination] 'if the evidence taken as a whole would not allow a 
jury to infer that the actual reason for the employer's decision was 
discriminatory.'") (quoting Rhodes, 75 F.3d at 994).
     CPChem, however, fails to address the evidence of pretext as a whole.  
Instead, the company addresses each component of the pretext evidence in 
isolation, citing some precedent of this Court for the proposition that that particular 
type of evidence, standing alone, is insufficient to prove pretext, and then 
concludes that the Commission has adduced no evidence of pretext.  See, e.g., 
CPChem-Br.-22 (alleging that EEOC "tried to meet its burden by arguing that 
Netterville had been honest"); CPChem-Br.-29 (characterizing EEOC's argument 
on pretext as relying on "mere timing, without additional evidence").
     In our opening brief, we explained that the evidence in the record concerning 
the course of CPChem's conduct in response to Netterville's disclosure of her CFS 
is sufficient to support a finding that CPChem in fact fired Netterville either 
because she had CFS, because she requested reasonable accommodations for her 
CFS, or both.  EEOC-Br.-46-51.  We argued that a reasonable jury could look at: 
the questions asked on the questionnaire and Netterville's responses; the e-mails 
reflecting CPChem's decision to go straight to her medical questionnaire as soon 
as she disclosed her CFS to see if the company could find a basis for terminating 
her; CPChem's shifting internal explanations for which question Netterville had 
answered incorrectly on the questionnaire and the nurse's specious medical 
reasoning for her conclusion<5>; and the rest of the evidence in the record, and 
conclude that CPChem's "falsification" rationale was a pretext for discrimination 
and/or retaliation against Netterville.
     In response, CPChem argues repeatedly that Netterville did lie on her form, 
that she essentially dug her own grave by "creat[ing] the suspicion of dishonesty" 
at the February 5 meeting, that she "confessed" to withholding information and 
falsifying her form, and that she admitted that she "deliberately" chose not to 
include the information about her CFS on her form.  CPChem-Br.-21-22, 23-24.  
CPChem also maintains that Netterville's own testimony about when her CFS 
recurred and about why she answered the questionnaire as she did was 
"inconsistent."  CPChem-Br.-25.  Here, again, CPChem distorts the factual record 
and tries to generate factual "inconsistencies" where none exist.
     To begin with, Netterville's statement at the February 5 meeting that she 
"kn[e]w [she] didn't tell you-all that [she] had chronic fatigue" (R.43-Exh.1A-80; 
ROA-286) in no way constitutes an admission of dishonesty or wrongdoing, as 
CPChem would have it. Netterville was ostensibly terminated, according to 
CPChem, for "falsifying" an answer on her medical questionnaire - i.e., for 
answering "no" to a question which she should have answered "yes."  CPChem 
does not argue - as indeed it could not - that it would constitute "falsification" 
of the form for an employee to fail to answer a question that is not asked.  Thus, 
for example, if an employee failed to disclose that she had an ingrown toenail, and 
subsequently told CPChem, "I know I didn't tell you about my ingrown toenail," 
this would not constitute falsification or withholding information because the 
questionnaire nowhere asks about ingrown toenails or other nail conditions.  Nor, 
for that matter, does the questionnaire have a mandatory "catch-all" provision 
asking about other conditions than the ones expressly listed; it simply asks the 
employee whether "you have other health problems you'd like to discuss with the 
physician or occupational health nurse."  P-RE-T.7 (ROA-347).
     As we pointed out in our opening brief, the medical questionnaire nowhere 
mentions CFS, any related syndromes, or even the hallmark symptoms of CFS.  
EEOC-Br.-49.  As Netterville explained, she had two reasons for not associating 
CFS with the "excessive fatigue with work or exercise" question: first, that she had 
it so long ago that she wasn't sure she had ever had it, and, secondly, that she had 
not found the fatigue symptoms to be coupled with work or exercise, as the 
question specified.<6> CPChem suggests that the fact that Netterville had more than 
one reason for her answer is yet another "inconsistency" (CPChem-Br.-25), but 
there is nothing inconsistent about having more than one reason for answering a 
question in a given way unless the reasons are contradictory, or were advanced at 
different times as the sole reason for the answer.  Furthermore, at no point did 
Netterville ever "admit" that she knew, or even thought, that she should have 
disclosed her CFS on her questionnaire, but "chose" not to do so; CPChem's 
witnesses may have so testified with respect to the meeting on February 26, but on 
summary judgment it is Netterville's version of the facts, not CPChem's, that is to 
be credited.<7>
     CPChem employs a similar tactic with respect to Netterville's testimony 
regarding the recurrence of her CFS symptoms, trying once again to portray her as 
a liar and a schemer who sequentially proffered different and contradictory dates 
for the onset of her symptoms.  CPChem-Br.-25.  Here, again, CPChem distorts the 
record and ignores Dr. Salvato's corroborating evidence, admissible as the 
testimony of Netterville's treating physician.
     As we explained in our opening brief, there is one genuine discrepancy in 
the record with respect to the onset date of Netterville's symptoms: On February 5, 
2003, Netterville told CPChem that her CFS had returned two years ago (i.e., early 
2001), which she subsequently realized was a mistake.  EEOC-Br.-8.  Apart from 
that one incident, however, which Netterville acknowledged in her deposition and 
in her affidavit, her testimony and the testimony of her treating physician have 
been completely consistent: she began noticing CFS symptoms in conjunction with 
the overtime and physical labor she was putting in relating to the office move 
beginning in the summer of 2002.  P-RE-T.6 (ROA-1219-20) (Netterville 
affidavit); R.46-Exh.1-177 (ROA-570) (Netterville deposition testimony); P-RE-
T.8-4 (ROA-767) (Salvato affidavit).  Netterville also consistently testified that her 
symptoms came on gradually over the course of mid to late 2002 and were 
extremely disabling by the beginning of 2003; the uncontroverted evidence is that 
there was no single date of onset.  There is, thus, no support in the record for 
CPChem's argument that Netterville's testimony on this point is inconsistent 
because it fails to pin down a date of onset or because it reflects, unequivocally, 
that her symptoms returned gradually during the second half of 2002.
     CPChem also argues that evidence that the company's explanation for firing 
Netterville was erroneous or unreasonable is irrelevant to the question of whether 
its explanation was a pretext for discrimination.  This is incorrect.  As this Court 
has explained, a jury can find that a defendant's proffered explanation is "so 
unreasonable that it must be pretextual."  Sandstad v. CB Richard Ellis, Inc., 309 
F.3d 893, 899 (5th Cir. 2002).  To be sure, as we acknowledged in our opening 
brief, an employer's good-faith reliance on an ultimately mistaken belief that an 
employee violated a work rule would not support a finding of pretext.  EEOC-Br.-
48-49.  However, this Court has not held, as CPChem suggests in its brief 
(CPChem-Br.-20-21), that there is no limit on employer unreasonableness without 
some independent evidence of "discriminatory animus."  See also Reeves v. 
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (at the pretext stage, an 
employee "may attempt to establish that he was the victim of intentional 
discrimination 'by showing that the employer's proffered explanation is unworthy 
of credence'") (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 
(1981)); West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir. 2003) 
("'Proof that the defendant's explanation is unworthy of credence is simply one 
form of circumstantial evidence that is probative of intentional discrimination, and 
it may be quite persuasive.'") (quoting Reeves, 530 U.S. at 147).
     Finally, CPChem argues that this is a case where, "[i]n context, the timing 
[of Netterville's termination] proves absolutely nothing."  CPChem-Br.-28 (citing 
Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997)).  CPChem is 
mistaken, and the factual distinctions between this case and Soileau bring the 
nature of CPChem's error into sharp focus.  In Soileau, the First Circuit found that 
the close timing of the plaintiff's discharge was not probative of retaliation because 
"[the plaintiff's discipline and warning happened before Guilford ever knew that 
Soileau was asserting he was presently disabled and before Soileau asked for [an] 
accommodation . . . . Accordingly, that discipline and explicit warning could not 
have been motivated, even in part, by a request for an accommodation."  105 F.3d 
at 16-17.  In other words, Soileau was disciplined before his employer ever knew 
that he was disabled, and he was terminated for reasons pertaining to that earlier 
discipline.  In this case, on the other hand, the entire chain of events that led to 
Netterville's termination was set in motion by her disclosure to CPChem that she 
had a disability and that she was requesting reasonable accommodation for that 
disability.  CPChem cannot argue that, at the time it fired Netterville, it was 
unaware either of her disability or of her accommodation requests.
     In any case, try though CPChem might to pretend otherwise, this is not a 
"mere timing" case.  A reasonable jury could look at the evidence in this case and 
conclude that CPChem terminated Netterville's employment because of her 
disability and/or in retaliation for her accommodation requests based on: her total 
lack of any prior disciplinary action warranting dismissal; the fact that CPChem's 
immediate response to Netterville's disclosure of her CFS and her requests for 
reasonable accommodation was to review the medical questionnaire she had filled 
out nearly two years before to see if it could find a basis for firing her; the fact that 
Netterville's responses to the questions on the questionnaire were truthful; 
CPChem's inconsistency as to which answer she had in fact "falsified"; CPChem's 
unwillingness to engage in any dialogue with Netterville or her treating physician 
about her symptoms or her needs; and the fact that CPChem had never terminated 
another employee for such an infraction, and its prior corporate entity had 
terminated only one employee who had confessed her guilt.
     3.  In its brief as Appellee, CPChem argues that an employee who requests a 
reasonable accommodation under the ADA is not protected from retaliation on the 
basis of that request unless the employee is ultimately determined to be disabled.  
CPChem-Br.-49.  CPChem criticizes the EEOC for pointing out that every circuit 
court of appeals to have considered the issue has concluded that individuals 
seeking accommodations are protected against retaliation under the ADA even if 
they are not ultimately deemed to be disabled because these other decisions are 
"from non-controlling jurisdictions."  CPChem-Br.-50.
     As we explained in our opening brief, there is a strong textual basis for these 
courts' conclusion in 42 U.S.C.  12203(b), which provides that it is unlawful to 
"interfere with any individual in the exercise or enjoyment of . . . any right granted 
or protected by the ADA."  42 U.S.C.  12203(b) (emphasis added); see also 
EEOC-Br.-46-47 & n.6.  Moreover, there are also strong policy arguments 
favoring this interpretation, and disfavoring the approach CPChem urges.  Most 
significantly, without independent protection against retaliation, any individual 
(whether disabled or not) who might want to ask for a reasonable accommodation 
would put herself at risk of being fired or otherwise retaliated against with 
impunity depending on whether a court ultimately determined that she was 
disabled.  This would have an obvious chilling effect on the legitimate assertion of 
disabled employees' rights under the ADA.  See, e.g., Shellenberger v. Summit 
Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) (observing that "[t]he right to 
request an accommodation in good faith is no less a guarantee under the ADA than 
the right to file a complaint with the EEOC").  The logic of this argument has equal 
force regardless of whether the employee seeking the reasonable accommodation 
ever decides to file a charge.  See Soileau, 105 F.3d at 16 ("It would seem 
anomalous [] to think Congress intended no retaliation protection for employees 
who request a reasonable accommodation unless they also file a formal charge. 
This would leave employees unprotected if an employer granted the 
accommodation and shortly thereafter terminated the employee in retaliation."); 
Section 8, Retaliation, 2 EEOC Compliance Manual 8-6 (BNA) (2003)<8> (a request 
for reasonable accommodations on the basis of disability constitutes protected 
activity under section 503 of the ADA regardless of whether the individual making 
the request ever files a charge based on the denial of that request).
     Insofar as CPChem suggests that a holding to the contrary would open the 
floodgates to a rash of specious ADA retaliation claims brought by non-disabled 
individuals, we note that no such onslaught appears to have occurred in any of the 
jurisdictions that have adopted this approach, and CPChem adduces no evidence or 
analysis to suggest otherwise.  Nor, for that matter, has any such onslaught 
occurred in this Court as a result of this Court's decision in Sherrod v. American 
Airlines, Inc., 132 F.3d 1112 (5th Cir. 1998), as to which the same "logic" - were 
it correct - should apply.  As CPChem admits in its brief, CPChem-Br.-51, this 
Court found that the plaintiff in Sherrod had engaged in protected activity under 
the ADA by "filing EEOC complaints against American based on the reasonable 
belief that American's actions violated the ADA," even though the Court 
concluded that Sherrod was not disabled.  132 F.3d at 1122.  Based on CPChem's 
reasoning, it should have made no difference whether Sherrod filed an EEOC 
charge or not; this Court's opening the floodgates to ADA coverage of non-
disabled individuals in Sherrod should have led to a host of meritless retaliation 
claims by employees requesting accommodations and seeking the ADA's 
protection, but it did not.   Moreover, CPChem's suggestion that limiting the 
ADA's protection against retaliation to individuals who file charges will serve as a 
bulwark against such meritless claims makes no sense.  An individual who requests 
a reasonable accommodation without a good-faith basis for that request can just as 
easily go on to file a charge based on the denial of her accommodation as one who 
does have a good-faith basis for her request.
     In light of the text of the statute, the unanimity of the courts (including this 
Court) that have spoken on the issue, and the relevant policy considerations, there 
is no principled reason to allow employers to retaliate at will against employees 
who request a reasonable accommodation in good faith unless the employees either 
(a) are ultimately found to be disabled or (b) subsequently file an administrative 
charge challenging the denial of their accommodation requests.  The letter and the 
spirit of the ADA counsel in favor of protecting employees who request a 
reasonable accommodation under the statute, and we respectfully urge this Court to 
recognize this point in this case.
     4.  Finally, there is evidence in the record from which a reasonable jury 
could find that CPChem failed to engage in the ADA's mandatory interactive 
process with Netterville with respect to her request for a reasonable 
accommodation.  As a preliminary note, while we disagree with CPChem's 
argument that this claim is "moot," we agree that, as a practical matter, if this 
Court were to affirm the district court's grant of summary judgment on the claim 
that Netterville's termination was unlawful, there would be no independent claim 
for relief for failure to accommodate her disability or for failure to engage in the 
ADA's interactive process.  However, for the reasons already addressed in this 
brief and our opening brief, CPChem is not entitled to summary judgment on these 
claims, and the EEOC's failure-to-accommodate claim therefore stands.
     In its brief, CPChem argues that Dr. Salvato's initial release note of 
February 18 "fails as a valid request for an accommodation under established 
precedent."  CPChem-Br.-45.  This argument is both legally wrong and factually 
disingenuous.  As we explained in our opening brief (EEOC-Br.-43-44), in order to 
trigger the ADA's interactive process, the employee need not provide all 
conceivable details in her initial request; rather, she must "let the employer know 
that s/he needs an adjustment or change at work for a reason related to a medical 
condition."  Indeed, this Court's decision in Taylor v. Principal Financial Group, 
Inc., quoted by CPChem in its brief, makes this point very clearly.  In Taylor, as 
CPChem acknowledges, this Court stated that the employee or her health-care 
provider has the primary burden to specifically identify the disability and its 
resulting limitations "[w]here the disability, resulting limitations, and necessary 
reasonable accommodations, are not open, obvious, and apparent to the employer." 
93 F.3d 155, 165 (5th Cir. 1996).  CPChem cannot in good faith maintain that it 
was ignorant of Netterville's disability at this time, given that it was already well 
aware of her condition and in communication with the company nurse about 
whether she should have disclosed it on her health questionnaire, and Dr. Salvato's 
note did in fact specify the precise nature of the accommodation being requested: 
relocation.  Although CPChem tries to portray the term "substation" in Dr. 
Salvato's note as incomprehensible to the company, Borths testified at his 
deposition that he recognized Dr. Salvato's note as a medical release requesting 
that Netterville be reassigned to another location, and that he chose not to look into 
that request because the terms of the note did not specify why relocation was 
medically necessary.  R.46-Exh.4-30, 79-81 (ROA-687, 699).<9> In any case, insofar 
as anything about Dr. Salvato's note or Netterville's request may have required 
clarification, this Court has stated repeatedly that it is the employer's obligation to 
communicate with the employee requesting the accommodation and to ascertain 
what her needs are - not to tell her that "we just can't take this" and refuse to 
engage in the interactive process.  See EEOC-Br.-44-45.
     CPChem also argues that the ADA's interactive process was not triggered 
with respect to Netterville's first accommodation request because Netterville 
herself did not ask to work at a different location or provide any evidence that a job 
vacancy existed at another location.  This Court's decision in Taylor, cited and 
quoted above, provides the answer to the first argument: either the employee or her 
health-care provider may be the one to identify the accommodation in the request.  
And this Court's myriad decisions on the ADA's interactive process provide the 
answer to the second: the time to determine what vacancies were available, and 
what other potential reasonable accommodations might have enabled Netterville to 
continue working, was when she requested a reasonable accommodation back in 
February 2003, not now, before this Court.  See EEOC-Br.-44-45; see also EEOC 
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under 
the ADA, at 45 (Oct. 17, 2002)<10> (because "[t]he employer is in the best position to 
know which jobs are vacant or will become vacant within a reasonable period of 
time," "the employer, as part of the interactive process, should ask the employee 
about his/her qualifications and interests," and is therefore "obligated to inform an 
employee about vacant positions for which s/he may be eligible as a 
reassignment"; the "employee should assist the employer in identifying appropriate 
vacancies to the extent that the employee has access to information about them"). 


                                   CONCLUSION

      For the foregoing reasons and the reasons stated in the EEOC's opening 
brief, the judgment of the district court should be reversed and the case remanded 
for further proceedings.
Respectfully submitted,

RONALD S. COOPER
General Counsel

CAROLYN L. WHEELER
Acting Associate General Counsel

VINCENT J. BLACKWOOD
Assistant General Counsel



______________________________
ELIZABETH E. THERAN
Attorney
     EQUAL EMPLOYMENT 
     OPPORTUNITY COMMISSION
     Office of General Counsel
     1801 L Street, N.W.
     Washington, D.C. 20507
     (202) 663-4720
elizabeth.theran@eeoc.gov


                             CERTIFICATE OF COMPLIANCE

     This brief complies with the type-volume limitation of Fed. R. App. P. 
32(a)(7)(B) because it contains 6,800 words, excluding the parts of the brief 
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
     This brief complies with the typeface requirements of Fed. R. App. P. 
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has 
been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 
Times New Roman 14 point.
     
     

					
Elizabeth E. Theran
Attorney
EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov



Dated:  March 4, 2008



                            CERTIFICATE OF SERVICE

     I, Elizabeth E. Theran, hereby certify that I filed one original and six hard 
copies of the foregoing brief, plus one electronic copy in PDF format on a 3.5-inch 
diskette, with this Court this 4th day of March, 2008, by overnight delivery, 
postage pre-paid.  I also certify that I served two hard copies of the foregoing brief, 
plus one electronic copy in PDF format on a 3.5-inch diskette, this 4th day of 
March, 2008, by overnight delivery, postage pre-paid, to the following counsel of 
record:



Counsel for Defendant:
Scott R. McLaughlin, Esq.
Shook, Hardy & Bacon
JPMorgan Chase Tower
600 Travis St., Ste. 1600
Houston, TX  77002
(713) 227-8008



Elizabeth E. Theran
Attorney
EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov

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

<1> In this brief, "P-RE-T.[#]" refers to the EEOC's Record Excerpts, and "D-RE-
T.[#]" to CPChem's Record Excerpts.

<2> It is disingenuous for CPChem to argue that Netterville's testimony that she 
suffered increased depression and difficulty sleeping as a result of being fired by 
CPChem (R.46-Exh.1; ROA-571) somehow constitutes an example of dishonesty 
or inconsistency on her part.  CPChem-Br.-41.  There is nothing "inconsistent" 
about an individual with a chronic sleep disorder and/or depression finding that her 
symptoms worsened in response to a traumatic event like being fired, particularly 
on terms where her self-esteem was under attack due to allegations of deliberate 
deception on her part.

<3> At http://www.masscfids.org/html/CFIDS_Fact_Sheet_2002.htm (last visited 
Feb. 21, 2008).

<4> This was the definition the Auguster Court gave for "substantial evidence of 
pretext."  249 F.3d at 403;  see also Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 
1122 (5th Cir. 1998) ("Evidence is substantial if it is of 'such quality and weight 
that reasonable and fair minded persons in the exercise of impartial judgment 
might reach different conclusions.'") (internal citation omitted).  

<5> CPChem misunderstands our point about the nurse's medical error.  CPChem-
Br.-24-n.6.  CPChem apparently understood us to mean that the nurse was only 
considering whether Netterville had a blood disorder.  Rather, our point was that, 
when asked which question a person with CFS should have answered in the 
affirmative, the nurse answered that it was the "blood disorders" question, and 
never mentioned the "fatigue with work or exercise" question.  EEOC-Br.-49-50.  
What is significant is that, at some point along the way, someone at CPChem 
decided that the "fatigue with work or exercise" question was the one Netterville 
had "falsified," but that someone was not CPChem's medical department.

<6> Here, again, CPChem distorts the record when it asserts that Borths handled 
Netterville's case similarly to that of a Chevron employee from the Houston 
Chemical Complex who admitted both that she falsified her medical questionnaire 
and that she did so deliberately because she was afraid she would not be hired if 
she answered it truthfully.  CPChem-Br.-27 n.7. Netterville "admitted" nothing of 
the sort, and what she did "admit" was a far cry from deliberately not answering a 
question that was expressly asked and unquestionably applied to her condition. 

<7> CPChem takes the position in its brief (CPChem-Br.-10), without any legal 
support, that the Commission is precluded from challenging CPChem's officials' 
testimony on this point because Netterville's symptoms include "foggy brain" and 
cognitive limitations and because she stated at her deposition that she "could not 
deny" telling Thurman and Rugeley that she chose not to disclose her CFS on the 
questionnaire because she thought it would not affect her work.  This is incorrect.  
A reasonable factfinder would be entitled to weigh all of the evidence in the record 
and draw its own conclusions as to the respective weight to be accorded the 
different witnesses' testimony.  See supra pages 7-8 (citing cases); see also R.43-
Exh.1A-109-10 (ROA-302-03) (Netterville's deposition testimony, in which she 
testifies explicitly that she does not recall stating that she chose not to disclose her 
CFS because she did not feel that it would affect her work).

<8> Available at http://www.eeoc.gov/policy/compliance.html.

<9> For that matter, Borths also testified that, had CPChem not initially determined 
that Netterville falsified answers on her medical questionnaire, "then we would 
have engaged in the interactive process and determined whether accommodation 
was appropriate."  R.46-Exh.4-33 (ROA-687).  Accordingly, CPChem cannot 
maintain in good faith that it did not recognize Dr. Salvato's letter of February 18 
for the reasonable accommodation request that it was.

<10> Available at http://www.eeoc.gov/policy/docs/accommodation.html.