,... .. '

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

c.aN~.98CV77 3 1 EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

Plaintiff,

) )

JUDGE JUOGE DAVID A. KATZ

)

v.

)

)

COMPLAINT

J. H. ROUTH PACKING COMPANY,

)

)

WITH JURY DEMAND

Defendant.

)

NATURE OF THE ACTION This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of

1

disability and to make whole Jason Polak. a qualified individual with a disability, and all other similarly situated qualified individuals with disabilities. Defendant has maintained a policy or practice of discriminating against qualified individuals with seizure disorders in the terms, conditions, and privileges of employment.
JURISDICTION AND VENUE
1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331,
1337,1343 and 1345. This action is authorized and instituted pursuant to Section 107(a)
of the Americans with Disabilities Act of 1990 ("ADAU), 42 U.S.C. § 12117(a), which
incorporates by reference Section 706 (f)(1) and (3) of Title VII of the Civil Rights Act of
1964 ("Title VlltI), 42 U.s.C. § 2000e-5(f)(1) and (3) and pursuant to Section 102 of the Civil
Rights Act of 1991, 42 U.S.C. § 1981A.
2. The employment practices aUeged to be unlawfuJ were committed within the jurisdiction of the United States District Court for the Northern District of Ohjo, Western Division.
PARTIES 3. Plaintiff, Equal Employment Opportunity Commission (the "Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of Title Jof the ADA and is expressly authorized to bring this action by
Section 107 of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5 (5)(1).
4. At all relevant times, Defendant, J. H. Routh Packing Company, (tiEmployer"), has continuously been an Ohio corporation doing business in the State of Ohio, the City
2

of Sandusky, and has continuously had at least twenty-five employees. 5. At all relevant times, Defendant Employer has continuously been an
employer engaged in an industry affecting commerce within the meaning of Section 101 (5) of the ADA, 42 U.S.C. § 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701 (g) and (h) of Title VII, 42 U.S.C. §§2000e(g) and (h).
6. At all relevant times, Defendant Employer has been a covered entity within the meaning of Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to institution of this lawsuit, Jason Polak filed a charge with the Commission alleging violations of Title I of the ADA by Defendant. All conditions precedent to the institution of this suit have been fulfilled. 8. At all times relevant to the events alleged in this complaint Mr. Polak was a qualified individual with a disability (epilepsy or seizure djsorder) who, with or without an accommodation, could perform the essential functions of the job of meat cutter/trimmer for Defendant. 9. On April 10, 1995, Jason Polak, a twenty-five year old male, was interviewed by Employer and offered a job as meat cutter/trimmer. Mr. Polak's offer of employment was conditional upon passing a physical examination. 10. While completing a health questionnaire and inventory required by Defendant as part of its physical examination, Mr. Polak disclosed that he had a history of epilepsy which was controlled with medication. At the time he completed these docouments Mr.
3

Polak was treating his epilepsy with Tegretol and neurontin. He also indicated that he had had a sejzure within the last two months.
11. Mr. Polak has taken medication for his epilepsy since he was a child. During
the times relevant to this complaint Mr. Polak wouJd experience petit mal seizures approximately six times each year with each seizure lasting ten to thirty seconds. Prior to the onset of each seizure Mr. Polak has a warning or "auratf• As a result he is often able to fight off a seizure. If he cannot overcome the event, he will sit down for approximately one minute until the seizure passes. During a seizure his ability to talk and to chew are affected. He is conscious and fully aware of what is happening to him. After resting for a few minutes the seizure will pass and Mr. Polak is able to continue doing what he was doing prior to the event.
12. As an adult Mr. Polak does not experience grand mal seizures. 13. Mr. Polak has a record of working in jobs involving the use of knives,
vegetable chunkers, box openers, and sharp instruments. He has never suffered an injury as a result of his epilepsy while working with these instruments.
14. Upon learning that Mr. Polak had epilepsy, Defendant terminated his
employment. The reason stated for Mr. Polak's termination was that he had had a seizure within the past two months. Defendant advised Mr. Polak that he must be seizure-free for at least six months before he could be considered for employment.
15. In deciding to terminate Mr. Polakfs employment, Defendant acted on the
basis of stereotypes associated with epilepsy. Oefendant1s decision was not based upon an individualized assessment of Mr. Polak's ability safely to perform the essential functions
4

of the job of meat cutter/trimmer with or without a reasonable accommodation. 16. Mr. Polak does not represent a direct threat to the health or safety of other
individuals in the workplace. 17. Defendant's decision to terminate Jason Polak is in violation ofthe Americans
With Disabilities Act. 42 U.S.C. Section 12112. 18. Defendant has maintained a policy or practice of refusing to employ any
individual with a record of seizure disorders unless that individual can demonstrate that he or she has been seizure free for a specific period of time, e.g. six months. Said policy discriminates against qualified individuals with epilepsy in violation of the Americans With Disabilities Act, 42 U.S.C. Section 12112.
19. The effect of the practices complained of above has been to deprive Jason Polak and others of equal employment opportunities and otherwise adversely affect their status as employees, because of disability.
20. The unlawful practices complained of above were intentional. 21. Defendant employer at all relevant times has been acting with malice or reckless indifference to the federally protected rights ofJason Polak and others, in violation
of the ADA, 42 U.S.C. § 12101 et seg.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjOining Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from maintaining its policy of refusing to employ individuals with seizure disorders unless they
5

have been seizure free for six months. B. Order Defendant Employer to institute and carry out policies, practices and
programs which provide equal employment opportunities for qualified individuals with disabilities, and which eradicate the effects of its past and present unlawful employment practices, including the requirement that Defendant adopt a policy which provides for an individualized assessment of an individual's ability safely to perform the job for which he or she is hired.
C. Grant a judgment requiring the Defendant Employer to make whole Jason Polak and each other individual adversely affected by its policies or practices, by providing appropriate back wages with prejudgment interest in amounts to be proved at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to an offer of employment to the positions from which these individuals were terminated, with all the benefits they would have enjoyed had they not been terminated by Defendant.
D. Order Defendant Employer to make whole Jason Polak and each other similarly situated individual by providing compensation for non-pecuniary losses, including but not limited to damages for embarrassment, humiliation and injury to dignity, in amounts to be proven at trial.
F. Order Defendant Employer to pay Jason Polak and each other similarly situated individual punitive damages for its malicious and/or reckless conduct, in an amount to be proven at trial.
G. Grant such further relief as the Court deems necessary and proper. 6

H. Award the Commission its costs in this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on· aU questions offact raised by its complaint.
Respectfully submitted,
C. GREGORY STEWART GENERAL COUNSEL
GWENDOLYN YOUNG REAMS ASSOCIATE GENERAL COUNSEL
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 ttL" Street, N. W. Washington, D. C. 20507
(?~~
C. Larry Watson Regional Attorney Registration No. 0031443
Ai6~~ Senior Lead Trial Attorney Registration No. 0023546
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1660 West Second Street, Suite 850 Cleveland, Ohio 44113-1454 (216) 522-7676
7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, -vs-
J. H. ROUTH PACKING COMPANY,.

Case No.3 :98 CV 7731 MEMORANDUM OPINION

KATZ, J.

Defendant.

This matter is before the Court on Defendant's motion for judgment on the pleadings. For

the following reasons, Defendant's motion will be granted.

BACKGROUND

Plaintiff Equal Employment Opportunity Commission ("EEOC") brings this employment

discrimination on behalf of Jason Polak and all other similarly situated individuals. On April 10,

1995, Defendant lH. Routh Packing Company made Polak an offer of employment as a meat

cutter/trimmer, which offer was conditioned on Polak's passing a physical examination.

During the course of the examination, Polak disclosed that he had a history of epilepsy

which was controlled with medication. As an adult, Polak has experienced approximately six petit

AO 72A (Rev. 8/82)

mal seizures a year, with each seizure lasting ten to thirty seconds. Prior to the onset of each seizure, Polak has a warning or "aura." He does not experience grand mal seizures.
When Defendant learned that Polak had epilepsy, it withdrew the employment offer. At that time, Defendant informed Polak that he would not be considered for ajob involving the use of sharp implements unless he was seizure-free for at least six months.
On December 7, 1998, the EEOC brought this action, challenging Defendant's policy of not employing individuals with seizure disorders in jobs involving the use of sharp implements unless they have been seizure-free for at least six months. The EEOC claims that Defendant's policy violates the Americans with Disabilities Act ("ADA" or "the Act"). It seeks an order requiring Defendant to adopt a policy which provides for individualized assessment of an individual's ability safely to perform the job for which he or she is hired, and compensatory and punitive damages for Jason Polak.
Defendant responds that Polak was neither disabled nor qualified for a job as a meat cutter/trimmer. It argues that its policy of requiring its applicants to be seizure-free for six months is reasonable in light of the fact that it requires its meat cutter/trimmers to work on elevated platforms using sharp knives, saws, electric knives and other sharpened tools for cutting and disassembling hogs. Defendant has moved for judgment on the pleadings on the sole issue of whether the EEOC has sufficiently pled that Polak is disabled under the ADA.
The EEOC has filed opposition to Defendant's motion, and Defendant has replied thereto. The Court discusses the parties' contentions below.
2
AO 72A (Rev. 8/82)

DISCUSSION
A. Motions for Judgment on the Pleadings On a motion for judgment on the pleadings pursuant to Rule 12(c), all well-pleaded
allegations of the non-moving party must be taken as true. United States v. Moriarty, 8 F.3d 329, 332 (6th Cir. 1993), citing Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478,480 (6th Cir. 1973). Judgment is granted only where there is no material issue of fact involved and the moving party is entitled to judgment as a matter of law. Paskavan v. City of Cleveland Civil Service Comm 'n, 946 F.2d 1233, 1235 (6th Cir. 1991). B. Disability Discrimination
The issue before the Court on this motion is whether Plaintiffhas pled facts from which a finder of fact could ultimately determine that Polak is a "qualified individual with a disability" for purposes of the ADA, since only qualified individuals with disabilities are protected by the Act. The ADA prohibits a covered employer from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to ... the hiring, advancement, or discharge of elnployees ... and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). A "disability" is "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
3
AO 72A (Rev. 8/82)

The first question is whether the EEOC has sufficiently pled that Polak is an individual with a disability: i.e., that he (A) has a physical or mental impairment that substantially limits one or more of her major life activities, (B) has a record of such an impairment; or (C) is regarded as having such an impairment. See 42 U.S.C. § 12102(2). It is clear that Plaintiffhas sufficiently pled, at all times pertinent to this suit, an actual physical impairment within the meaning of the Act. See 29 C.F.R. § 1630.2(h)(1). The parties disagree about whether the EEOC has sufficiently pled facts from which a reasonable jury could find that Polak's physical impairment substantially limited one or more of his major life activities. "Major life activities" includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). In determining whether an individual is substantially limited in a major life activity, the Court considers:
(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R § 1630.2(j)(2). In determining whether an impairment is substantially limiting, the Court takes into account any measures - such as medication - that the person is taking to correct for or to mitigate the impairment. Sutton v. United Air Lines, Inc., 119 S. Ct. 2139,2146 (1999). 1. Physical Impairment That Substantially Limits a Major Life Activity The Defendant Company argues that Polak's epilepsy does not substantially limit any of his major life activities. The EEOC does not claim that Polak is substantially limited in the major life activities of caring for himself, performing manual tasks, walking, seeing, hearing, speaking,
4
AO 72A (Rev. 8/82)

breathing, learning, or working. To the contrary, the EEOC represents that Polak's impainnent is slight as long as he takes his medication; he has a few petit mal seizures a year, always with warning, and has been able successfully to work with sharp objects in the past.
The EEOC responds that it could present evidence from which a reasonable jury could detennine that Polak's epilepsy substantially limits a major life activity, although even in its opposition it has not identified a single major life activity in which Polak is substantially limited. Instead, the EEOC argues that the representative list - "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working" - given in the Federal Regulations is illustrative and not exhaustive, and that it might be able to produce evidence that Polak's impairment causes a substantial limitation on some other major life activity. The EEOC also argues that the symptoms associated with seizure disorders vary greatly, and that since a seizure disorder could, under appropriate circumstances, give rise to a finding of disability, it is entitled to present evidence that Polak's seizure disorder is a disabling condition.
The EEOC's argument that the list in the Federal Regulations is not exhaustive lacks merit. It is undoubtedly true that the representative list in the Federal Regulations is illustrative and not exhaustive. See, e.g., Bragdon v. Abbott, 118 S. Ct. 2196, 2202-03 (1998) (fmding reproduction to be a major life activity). Before the EEOC can take its case to a jury, however, it must identify some major life activity, whether on the list or not, in which Polak is substantially limited. It has not done so. The EEOC's wholly unsubstantiated speculation that it might, at some future time, be able to come up with some activity that Polak is substantially limited in his ability to perfonn is not sufficient to survive a motion for judgment on the pleadings.
5
AO 72A (Rev. 8/82)

The Court is required to accept all of the non-movant's well-pleaded factual allegations as true in a motion under Rule 12. But it cannot deny such a motion on the basis of allegations that have not been pled. The EEOC has not identified a single life activity in which Polak suffers a significant impairment, either in its complaint or in its opposition to Defendant's motion for judgment on the pleadings. On the record before the Court, the Court has no alternative but to find that the EEOC has not sufficiently pled a substantial limitation in Polak's major life activities.
The EEOC's argument that epilepsy is an impairment that could, under appropriate circumstances, give rise to a finding of disability, is equally without merit. There is no question that a seizure disorder that substantially limited an individual's ability to care for himself, walk, speak, learn, or work would constitute a disability. But that is not the case before the Court. As the EEOC has repeatedly stated in its brief, disability determinations must be made on an individualized basis. No claim has been made that the individual on whose behalf the EEOC is bringing this suit is substantially limited in any major life activity.
The EEOC has not pled facts sufficient to support a claim that Polak is disabled by reason of an impairment that significantly limits a major life activity. 2. Record of Such an Impairment
The EEOC next argues, however, that it has pled facts from which a reasonable jury could conclude that Defendant discriminated against Polak because he has a record of having a disabling seizure disorder.
The EEOC's second argument is infirm in nNO ways. First, the EEOC has not pled facts from which a reasonable jury could conclude that Polak has a record of having a disabling
6
AO 72A (Rev. 8/82)

impairment. It has not identified any major life activity in which Polak has ever been substantially limited because ofhis impainnent.
Second, it is evident from both parties' pleadings that Defendant's sole concern was with Polak's current physical condition. No allegation has been made that Defendant withdrew Polak's job offer on the basis of a condition that was no longer affecting Polak, or that it would have refused a job offer to an individual with epilepsy who was presently seizure-free. The sole factual allegation before the Court - which the EEOC does not deny - is that Defendant would have offered Polak ajob ifhe had been seizure-free for six months.
The EEOC has not pled facts sufficient to support a claim that Defendant discriminated against Polak on the basis of his having a record of an impairment that significantly limited a major life activity. 3. Regarded as Having Such an Impairment
Finally, the EEOC argues that it has pled facts from which a reasonable jury could conclude that Defendant discriminated against Polak because Defendant regarded Polak as having an impairment that significantly limited a major life activity. It is clear from the pleadings that Defendant regarded Polak as having an impairment that significantly limited his ability to work safely on an elevated platform using sharp knives, saws, electric knives and other sharpened tools for cutting and disassembling hogs.
An employer violates the AD.A when it makes an employment decision based on an impairment, real or imagined, that is regarded as substantially limiting a major life activity. However, an employer "is tree to decide that some limiting, but not substantially limiting,
7
AO 72A (Rev. 8/82)

impairments make individuals less than ideally suited for ajob." Sutton, 119 S. Ct. at 2150 (emphasis in original).
The phrase "substantially limits" takes on a specialized definition when the major life activity under consideration is that of working. An individual is substantially limited in the major life activity of working only if he is:
significantly restricted in the ability to perform either a class ofjobs or a broad range ofjobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
29 C.F.R. § 1630.2(j)(3)(i). If a number of different types ofjobs are available to a plaintiff, he is not precluded from a broad range ofjobs. Sutton, 119 S. Ct. at 2151; accord Murphy v. United Parcel Serv., 119 S. Ct. 2133, 2139 (1999).
In this case, the only thing that has been alleged is that Defendant regarded Polak's epilepsy as precluding him from holding a position as a meat cutter/trimmer. Because the position of meat cutter/trimmer is a single job, this allegation does not support the claim that Defendant regards Polak as having a substantially limiting impairment. It is apparent from the face of the EEOC's own complaint that there are a number of other positions involving the use of sharp implements that are available to Polak.
The Supreme Court has expressly rejected the argument that if one were to assume that a substantial number of employers established physical requirements similar to the Defendant's, the Plaintiff would be substantially limited in the major life activity of working.
It is not enough to say that if the physical criteria of a single employer were imputed to all similar employers one would be retarded as substantially limited in the major life activity of working only as a result of this imputation. An otherwise
8
AO 72A (Rev. 8/82)

valid job requirement ... does not become invalid simply because it would limit a person's employment opportunities in a substantial way ifit were adopted by a substantial number of employers. Sutton, 119 S. Ct. at 2152. Indeed, the interpretation of the "regarded as" prong the EEOC urges this Court to adopt would effectively abrogate Congress' intent to restrict the ADA's coverage to a "confined and historically disadvantaged class," Sutton, 119 S. Ct. at 2152 (Ginsburg, J., concurring), by pennitting virtually any individual with an impairment that does not meet the "actual impairment" prong of the test to bring a claim under the "regarded as" prong. The EEOC has not pled facts sufficient to support a claim that Defendant discriminated against Polak because it regarded him as having an impairment that significantly limited a major life activity.
CONCLUSION
The EEOC has not pled facts in this case sufficient to support a claim that Polak is an individual with a disability under the ADA. Therefore, Polak is not covered by the ADA, and the complaint must be dismissed.
This case is on all fours with Sutton. As was the case with the Sutton plaintiffs, Polak has an impairment that does not substantially limit a major life activity. As in Sutton, Defendant determined that Polak was unqualified for a single job on the basis of that nondisabling impairment.
In addition, this case shares a third feature with Sutton that is not necessary to resolution of the dispute in this case: the interplay between the requirement that the applicant qualified for the position he seeks, and the requirement that the applicant be disabled. The EEOC cannot have it
C)
AO 72A (Rev. 8/82)

both ways. Either Polak's epilepsy is uncontrolled enough to substantially limit a major life activity, or it is not. If Polak's epilepsy is truly uncontrolled, he is not qualified to work on an elevated platfonn using sharp knives, saws, electric knives and other sharp implements. If Polak's epilepsy is controlled, he is not disabled. Compare Sutton v. United Air Lines, Inc., 130 F.3d 893, 903 (10th Cir. 1997); Sorenson v. University o/Utah Hasp., 1 F. SUppa 2d 1306, 1309 (D. Utah 1998); Murphy v. United Parcel Serv., 946 F. SUppa 872, 878 (D. Kan. 1996). Either way, an ADA claim cannot be brought on his behalf in this case.
For the foregoing reasons, Defendant's motion for judgment on th pleadings is granted. IT IS SO ORDERED.
DAVIDA. KATZ U. S. DISTRICT
10
AO 72A (Rev. 8/82)

 
 IN TIIE UNITED STATES DISTRICT COURT FOR TIIE NORTIIERN DISTRICT OF OHIO
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTIJNITY )

COMMISSION,

)

)

Plaintiff

)

)

-vs-

)

)

J.H.ROUTHPACKlNGCOMPANY,

)

)

Defendant

)

CIVIL ACTION NO. 3:98 CV 7731 JUDGE KATZ

STIPULATED DISMISSAL

The undersigned counsel for the respective parties hereby stipulate that the abovecaptioned action be dismissed, with prejudice, each party to bear its own fees and costs, subject, however, to the terms oftbe parties' Settlement Agreement which has been submitted to and reviewed by the Court. The parties further stipulate that this court shall retain jurisdiction to enforce the Settlement Agreement under the authority of Kokkonen v. Guardian Life Insurance Company ofAmerica, 511 U.S. 375, 114 S.C!. 1673 (1994).

Respectfully submitted,

GWENDOLYN YOUNG REAMS ASSOCIATE GENERAL COUNSEL WASHINGTON, D.C.

C. LARRY WATSON (0031443) REGIONAL ATTORNEY

I

• "" ...

y . Stem (0020107) TrialA orney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION Cleveland District Office Tower City - Skylight Office Tower 1660 West Second Street, Suite 850 Cleveland, Ohio 44113-1412 (216) 522-7458 (216) 522-7430 - telefax Email Jeffrey;Stem@eeoc.gov and
~~ .~ io04~4d4. Ulmer & Berne LLp· 1300 East Ninth Street - Suite 900 Cleveland, Ohio 44114-1583 (216) 621-8400 (216) 621-7488 - telefax Email tdowning@ulmer.com Attorney for Defendant IT IS SO ORDERED:
UNITED STATES DISTRICT JUDGE Date:.____________________________
2

,

SETTLEMENT AGREEMEW

.

Of-Mafeh,~r~ This Settlement Agreement ("Agreement") is entered into on this {O""-day

2002, by and between 1he Equal Employment Opportunity Commission (1he "Commission"), an

agency of the United States government, and J. H. Routh Packing Company ("Routh").

The following recitals are made a part of this Agreement:

A. In 1998, the Commission instituted an action against Routh in the United States District Court for fue Northern District of Ohio, Western Division entitled "EEOC v. J. H. Routh Packing Company", Case No. 3:98 CV 7731 (the "Federal Action") alleging a violation ofTitle I Ofthe Americans with Disabilities Act of 1990 ("ADA") and Title I ofthe Civil Rights Act of 1991 ("CRA"). Routh bas denied any violations of the ADA and CRA as alleged in 1he Action.

B. The Federal Action identified Jason Polak ("Polak") as the individual on whose behalf it was brought.

C. In 2000, Polak instituted an action against Routh in the Court of Common Pleas of Erie County, Ohio, entitled "Jason C. Polak v. J. H. Routh Packing Company", Case No. 2000CV-089 (the "State Action") alleging a violation ofthe handicap discrimination statutes ofthe State ofOhio.

D. The Commission, Routh and Polak have conferred and resolved their differences,
and 1he Commission and Roufu have advised the court that they desire to resolve fue Federal
Action without the burden, expense and delay offurther litigation, and that the State Action will
likewise be resolved contemporaneously, to likewise avoid further litigation.

E. Routh represents. and the Commission confinns, that all monetary claims for Polak, the individual mentioned in the Commission's Action, have been resolved to 1he satisfaction of Routh and Polak..

In consideration of the promises set forth ~elow, Routh and the Commission agree as
follows:

1. Upon the fulfilhnent of the condition precedent discussed in paragraph 8 of this Agreement, the Commission shall file in the United States District Court for the Northern
District of Ohio, Western Division, a Stipulated Dismissal Entry in the form set forth in the
attached Exhibit Po, dismissing the Action, with prejudice, such entry indicating that each party shall bear its own fees and costs. Notwithstanding the filing of such Stipulated Dismissal Entry, the United States District Court for the Northern District of Ohio shall retain jurisdiction in order to enforce 1he terms of this Settlement Agreement pnrsuant to Koklwnen v. Guardian Life Insurance Company ofAmerica, 511 U.S. 375, 114 S.Ct 1673 (1994).

2. Routh agrees that all terms and conditions of employment for positions at Routh shall be maintained and hnplemented by Roufu in a manner which complies wifu the ADA and
the CRA. Roufu further agrees that as part of its employment practices, it will conduct

1

individualized assessments ofpersons with disabilities, as defined by the ADA and cases decided thereunder. in such a manner as is appropriate WIder the circumstances, including, if necessary,
obtaining medical records ofemployees and/or applicants, having medical assessments made, and discussions with applicants and their treating doctors, as Ronth bas done with other
employees in the past.
3. For a term of two (2) years following the signing of this Agreement, Routh agrees to annually send a letter report to the Regioual Attorney, Cleveland District Office; Equal
Employment Opportunity Commission, 1660 West Second Street, Suite 850, Cleveland, Ohio 44113-1412, indicating the name, address, telephone number and date ofbirth of any applicant
who was not hired who made a disclosure of a history of a seizure disorder.
4. If information obtained by the Commission from either ofthe foregoing reports provides cause for it to evaluate Routh's compliance with this Agreement, Routh agrees to
provide documents or witness statements as may reasonably be necessary for such compliance evaluation.
5. Nothing in this Agreement shall preclude the Commission or Routh from btinging suit to enforce the terms of this Agreement, nor shall this Agreement preclude future action by the Commission to remedy any future alleged violations ofthe ADA by Routh.
6. This Agreement shall not constitute an adjudication or finding on the merits of the case and shall in no manner be consttued as an admission by Routh ofany violation ofthe ADA,
the CRA or any other law, rule or regulation dealing with, or in connection with, equal
employment opportunity and handicap discrimination.
7. It is understood between the parties that nothing in this Agreement preclodes the
Commission from continuing to exercise the authority it has to enforce the ADA and the eRA.
8. Routh shall deliver to the Commission a copy of the cbeck delivered to Polak in satisfaction oftbe monetary claims of Polak. Such copy shall be delivered to the Commission at the same time the cbeck is delivered to Polak and his counsel in the State Action. The check shall be delivered to Polak and his counsel in the State Action and a copy to the Commission no later than five (5) days after the execution of this Agreement as a condition precedent to the filing ofthe Stipolated Dismissal Entry discussed in paragraph 1 above.
9. Ronth and the Commission agree that there shall be no poblic dissemination by press release ofthe terms ofthis Settlement Agreement.
10. This Settlement Agreement shall be executed in duplicate origiuals.
[Remainder of Page Intentioually Blank)
2

AGREEDTO AND APPROVED BY TIIEUNDEaSIGNED:

J. H. ROUTItl'ACKING COMPANY

EQuAL EMPLOYMENT OPPORTUNIlY COMMISSION
. BY:e~ ~~
Date: ,A-,Wl \ JDj j?{}O;L

• 3

------------------------..,

EXHIBIT A
IN TIffi UNITED STATES DISTRICT COURT FOR TIffi-NORTIffiRN DISTRICT OF OHJO
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTIJNITY )

COMMISSION,

)

)

Plaintiff

)

)

-vs-

)

)

J. H. ROUTH PACKING COMPANY,

)

)

Defendant

)

CIVIL ACTION NO. 3:99 CV 3177
JUDGE KATZ

STIPULATED DISMISSAL

The llndersigned counsel for the respective parties hereby stipulate that the abovecaptioned action be dismissed, with prejndice, each party to bear its own fees and costs, snbject, however, to the terms of the parties' Settlement Agreement Which bas been snbmitted to and reviewed by the Caurt. The parties further stipulate that this court shall retain jnrisdiction to enforce the Settlement Agreement nnder the authority ofK(Jklwnim v. Guardian Life Insurance CompanyojAmerica, 511 U.S. 375, 114 S.Ct. 1673 (1994).
Respectfully submitted,
GWENDOLYN YOUNG REAMS ASSdcrATEGENERAL COUNSEL WASHJNGTON, D:C.
- C.LARRYWATSON(0031443) REGIONAL ATTORNEY

Jeffrey A. Stem (0020107) Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Cleveland District Office Tower City - Skylight Office Tower
4

•
1660 West Second Street, Suite 850 Cleveland, Ohio 44113-1412 (216) 522-7458 (216) 522-7430 - telefax Email Jeffrey.Stern@eeoc.gOV and
John A. Coppeler (0005506) Flynn, Py & Kruse, L.P.A. 115 West Perry Street Port Clinton, Ohio 43452 (419) 734-3174 (419) 734-3175 - telefax Email JCoppeler@FlynnPyKruse.com Attorney for Defendant
Timothy J. Downing (0042396) Ulmer & Berne LLP 1300 East Ninth Street - Suite 900 Cleveland, Ohio 44114-1583 (216) 621-1!400 (216) 621-7488 - telefax Email tdowning@ulrner.com Attorney for Defendant IT IS SO ORDERED:
UNITED STATES DISTRICT JUDGE Date:._ _ _ _ _ _ _ _ _ _ _ _ _ __
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Cat03, Protect, Standard, Termed
U.S. District Court Northern District of Ohio (Toledo) CIVIL DOCKET FOR CASE #: 3:98-cv-07731-DAK

Equal Employment Opportunity Commission v. J.H. Routh Packing Company Assigned to: Hon. David A. Katz Cause: 42:12131 Americans with Disabilities

Date Filed: 12/07/1998 Date Terminated: 04/18/2002 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C. Larry Watson U.S. Equal Employment Opportunity Commission - Cleveland 3001 AJC Federal Bldg. 1240 East Ninth Street Cleveland, OH 44199 216-522-7455 Fax: 216-522-7430 Email: larry.watson@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles E. Guerrier Equal Employment Opportunity Commission Ste. 2000 Ridge Park Place 1130 22nd Street Birmingham, AL 35205 205-731-2067 Fax: 205-731-1167 Email: Charles.Guerrier@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey A. Stern U.S. Equal Employment Opportunity Anthony J. Celebrezze Federal Office Building 1240 East 9th Street, Suite 3001 Cleveland, OH 44199 216-522-7458 Fax: 216-522-7430 Email: Jeffrey.Stern@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V. Defendant J.H. Routh Packing Company

Date Filed

#

represented by Bari E. Goggins Ulmer & Berne - Cleveland 1100 Skylight Office Tower 1660 West Second Street Cleveland, OH 44113-1448 216-583-7088 Fax: 216-583-7089 Email: bgoggins@ulmer.com TERMINATED: 10/18/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Coppeler Flynn, Py & Kruse 115 West Perry Street Port Clinton, OH 43452 419-734-3174 Fax: 419-734-3175 Email: jcoppeler@flynnpykruse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas H. Barnard, Jr. Ulmer & Berne - Cleveland 1100 Skylight Office Tower 1660 West Second Street Cleveland, OH 44113-1448 216-583-7200 Fax: 216-583-7201 Email: tbarnard@ulmer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy J. Downing Ulmer & Berne - Cleveland 1100 Skylight Office Tower 1660 West Second Street Cleveland, OH 44113-1448 216-583-7142 Fax: 216-583-7143 Email: tdowning@ulmer.com ATTORNEY TO BE NOTICED
Docket Text

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12/07/1998 12/07/1998 01/22/1999 02/12/1999 02/26/1999 03/26/1999 03/26/1999 03/30/1999
03/30/1999
03/31/1999 04/06/1999

1 Complaint with jury demand, (1 summons and Magistrate Consent Forms issued)(filing fee waived) against J.H. Routh Packing Co. Filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet) Modified on 9/11/2001 (B, T) (Entered: 08/20/2001)
2 Case Information Statement ; Recommended track: Standard, filed by Equal Employment Opportunity Commission. (B, T) (Entered: 08/20/2001)
3 Waiver of Summons Returned executed upon defendant J.H. Routh Packing Company on 12/17/98 filed by J.H. Routh Packing Co. Modified on 9/11/2001 (B, T) (Entered: 08/20/2001)
4 Answer to Complaint by defendant, J.H. Routh Packing Company, (Related Doc # 1) Modified on 9/11/2001 (B, T) (Entered: 08/20/2001)
5 Case Management Conference Scheduling Notice: Case Management Conference set 3/29/99 at 3:30 p.m.; parties and counsel to attend conference. (B, T) (Entered: 08/20/2001)
6 Report of Parties' Planning Meeting , filed by all parties. Modified on 9/11/2001 (B, T) (Entered: 08/20/2001)
7 Preliminary Estimate/Budget of Amount of Fees and Expenses filed by Equal Employment Opportunity Commission. (Related document(s)5) (B, T) (Entered: 08/20/2001)
8 Case Management Conference Order: Case Management Conference held 3/29/99; Track Designation: Standard; discovery to be completed 10/15/99; deadline for amending pleadings 6/30/99; deadline for adding parties 6/30/99; Motion filing deadline 11/15/99; 3 weeks for response after filing said Motions; 10 calendar days for reply; status conference on 7/19/99 by telephone at 9:15 a.m.; final pretrial conference on 2/28/00 at 3:30 p.m.; jury trial 3/28/00; expert disclosures with reports due for plaintiff by 8/16/99; for defendant by 9/13/99; parties shall file a letter with the Court to notify the Court of the outcome of any pending litigation relevant to this matter. Judge David A. Katz(B, T) (Entered: 08/20/2001)
9 Trial Order: Case is scheduled for jury trial 3/28/00 at 9:00 a.m.; plaintiff to submit stipulations regarding undisputed trial facts by 2/29/00; objections due 3/7/00; final stipulations due to Court by 3/14/00; trial briefs and motions in limine, if any shall be filed at least 14 calendar days before the date of trial, all other instructions per Order. Judge David A. Katz(B, T) (Entered: 08/20/2001)
10 Preliminary Estimate/Budget of Amount of Fees and Expenses filed by J.H. Routh Packing Co.. (Related document(s)5) (B, T) (Entered: 08/20/2001)
11 Preliminary Estimate/Budget of Amount of Fees and Expenses (second) filed by J.H. Routh Packing Co.. (Related document(s)5) (B, T) (Entered: 08/20/2001)

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07/16/1999 07/16/1999 07/29/1999 08/06/1999 08/16/1999 08/26/1999 09/02/1999 09/02/1999 10/13/1999 10/13/1999 12/02/1999
12/27/1999 12/28/1999

12 Motion for judgment on the pleadings with Memorandum in Support, filed by J.H. Routh Packing Co.. (Related document(s)1) (B, T) (Entered: 08/20/2001)
13 Order: Court conducted Status Conference on 7/19/99; New discovery and dispositive motion deadlines will be set, if necessary after the Court rules on defendant's motion. Judge David A. Katz(B, T) (Entered: 08/20/2001)
14 Motion for extension of time to respond to defendant's Motion for Judgment on the Pleadings until 8/13/99, filed by Equal Employment Opportunity Commission. (Related document(s)12) Modified on 9/11/2001 (B, T) (Entered: 08/20/2001)
15 Marginal Entry Order: Granting plaintiff's Motion for extension of time until 8/13/99 to respond to defendant's Motion for Judgment on the Pleadings. Judge David A. Katz (Related Doc # 14) (B, T) Modified on 8/20/2001 (B, T). (Entered: 08/20/2001)
16 Opposition (Related Motion(s) 12) to defendant's Motion for Judgment on the Pleadings, filed by Equal Employment Opportunity Commission. Modified on 9/11/2001 (B, T) (Entered: 08/20/2001)
17 Motion for leave by defendant to file Reply Brief Instanter to plaintiff's Brief in Opposition to Motion for Summary Judgment, filed by J.H. Routh Packing Co.. (B, T) (Entered: 08/20/2001)
18 Marginal Entry Order: Granting defendant's Motion for leave to file reply Brief to plaintiff's Brief in Opposition to Motion for Summary Judgment. Judge David A. Katz (Related Doc # 17) (B, T) (Entered: 08/20/2001)
19 Reply (Related Motion(s) 12) by defendant to plaintiff's Brief in Opposition to Motion by defendant for Judgment on the Pleadings, filed by J.H. Routh Packing Co. Modified on 9/11/2001 (B, T) (Entered: 08/20/2001)
20 Memorandum Opinion: Defendant's Motion for Judgment on the Pleadings is granted. (related document(s)#12) Judge David A. Katz 8/27/2001 Modified on 9/11/2001 (B, T) (Entered: 08/20/2001)
21 Judgment Entry: Ordered that defendant's Judgment on the Pleadings is granted dismissing case. Judge David A. Katz (B, T) (Entered: 08/20/2001)
22 Notice of Appeal by plaintiff regarding case dismissal in favor of defendant on 10/13/99; (cc: counsel-notice only) USCA-notice and documents mailed on 12/2/99; Fee not required. filed by Equal Employment Opportunity Commission. (Related document(s)21) (B, T) (Entered: 08/21/2001)
23 Transcript Order Form by plaintiff received. Transcript is unnecessary for Appeal purposes. (B,T) (Entered: 08/21/2001)
24 Acknowledgment from USCA for the 6th Circuit of receipt of plaintiff-

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11/02/2000 11/20/2000 04/25/2001
07/20/2001 07/25/2001 07/30/2001 08/02/2001 08/17/2001
08/17/2001 09/11/2001 09/14/2001 09/17/2001

appellant's Notice of Appeal (USCA #: 99-4482) - date received 12/7/99; date filed 12/8/99(B, T) (Entered: 08/21/2001)
Certified original pleadings mailed to USCA for the 6th Circuit on 11/3/00 (B, T) Modified on 8/21/2001 (B, T). (Entered: 08/21/2001)
25 Acknowledgment from USCA for the 6th Circuit of receipt of plaintiffappellant's Notice of Appeal (USCA #: 99-4482) - date received 11/3/00; date filed 11/6/00 (1 volume of pleadings) (B, T) (Entered: 08/21/2001)
26 Information Copy of Order from USCA reversing the District Court's grant of the defendant's Motion for Judgment on the Pleadings, and remanding for further proceedings. Clerk: Leonard Green; Chief Judge: Martin; Circuit Judges: Jones and Cole. Information Copy issued 4/19/01 ( this is not a mandate Order). (B, T) Modified on 8/21/2001 (B, T). (Entered: 08/21/2001)
27 (Mandate) True Copy Order from USCA reversing and remanding the decision of the District Court [Appeal[22-1]]. Mandate issued 7/6/01; Cost:$269.50. Appeal record return deadline 9/18/01; CASE REOPENED (B, T) (Entered: 09/26/2001)
Record on Appeal returned from USCA for the 6th Circuit ( 1 volume of pleadings). (B, T) (Entered: 08/21/2001)
28 Order: Telephone Status Hearing set 8/13/01 at 11:00 a.m. Judge David A. Katz(B, T) (Entered: 08/21/2001)
29 Motion to substitute attorney Jeffrey A. Sterns as trial attorney, filed by Equal Employment Opportunity Commission. (B, T) (Entered: 08/21/2001)
30 Order: Telephone status conference held 8/13/01; discovery deadline is 3/1/02; plaintiffs expert disclosures with reports due 11/11/01; defendants expert disclosures due 12/3/01; dispositive motion deadline 3/25/02, with 3 weeks for response and 10 days for reply; telephone status conference set 11/26/01 at 9:45 a.m.; final pretrial set 6/10/02 at 2:00 p.m. and jury trial set 7/16/02. Judge David A. Katz (B, T) (Entered: 08/21/2001)
31 Trial Order: Jury trial 7/16/02 at 9:00 a,m,; stipulations as to undisputed facts due 6/25/02; objections due 7/2/02; signed stipulations to Court by 7/9/02; trial briefs and motions in limine, if any, by 7/9/02. Judge David A. Katz Modified on 9/11/2001 (B, T) (Entered: 08/21/2001)
32 Notice of Placement of case in the CM/ECF Docketing System (S, D) (Entered: 09/11/2001)
33 Joint Motion for extension of time for Expert Disclosures filed by Equal Employment Opportunity Commission. (Stern, Jeffrey) (Entered: 09/14/2001)
34 ORDER. Judge David A. Katz. This case is ordered into the Court's Electronic Filing System. All pleadings/orders shall be filed electronically. (B, C) (Entered: 09/17/2001)

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10/01/2001 10/03/2001 10/17/2001
10/17/2001 11/13/2001 11/27/2001 12/06/2001 12/21/2001
04/12/2002 04/18/2002

35 Notice of Service of first interrogatories and requests for production filed by J.H. Routh Packing Company. (N, D) (Entered: 10/03/2001)
36 Stipulation & Order. Plantiff's expert disclosure w/reports by 11/26/01; Defendant's expert disclosure w/report by 12/17/01. (Katz, David) (Entered: 10/03/2001)
37 STIPULATED CONFIDENTIALITY ORDER re: all documents, drawings or plans for the cut floor of deft, as produced or disclosed by deft J.H. Routh Packing Co. Judge David A. Katz. (B, C) (Entered: 10/17/2001)
38 Notice of Substitution of Counsel removing attorney Bari E. Goggins and adding attorney Timothy J. Downing filed by on behalf of all defendants. (Downing, Timothy) (Entered: 10/17/2001)
39 Notice of Service of EEOC's second interrogatories and requests for production of records filed by J.H. Routh Packing Company. (G, D) (Entered: 11/15/2001)
40 ORDER. Phone conference held 11/26/01. Defendant to submit disputed responses for in camera review by 12/10/01. (Katz, David) (Entered: 11/27/2001)
41 Notice of production of documents for in camera inspection filed by J.H. Routh Packing Company. (G, D) (Entered: 12/11/2001)
42 Notice to take Deposition of William R. Bauer, M.D. or the Records Custodian for William R. Bauer, M.D. and William R. Bauer, M.D., Inc. on January 4, 2002 filed by J.H. Routh Packing Company. (Coppeler, John) (Entered: 12/21/2001)
43 Proposed Stipulation filed by Equal Employment Opportunity Commission. (Attachments: # 1 Settlement Agreement)(Stern, Jeffrey) (Entered: 04/12/2002)
44 Marginal Order granting stipulated dismissal with prejudice, each party to bear its own fees and costs, subject to terms of settlement agreement. (Judge David A. Katz) (Related document(s)43) (R, Ci) (Entered: 04/18/2002)

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 E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850 (2001)

246 F.3d 850 United States Court of Appeals,
Sixth Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v.
J.H. ROUTH PACKING CO., Defendant-Appellee.
No. 99-4482. | Argued Dec. 5, 2000. | Decided and Filed April 19, 2001. | Rehearing En Banc Denied
June 27, 2001.
Equal Employment Opportunity Commission (EEOC) brought enforcement action against employer under Americans with Disabilities Act (ADA). The United States District Court for the Northern District of Ohio, David A. Katz, J., granted employer judgment on the pleadings, and EEOC appealed. The Court of Appeals, Boyce F. Martin, Jr., Chief Judge, held that: (1) complaint was sufficient to provide employer with fair notice of Commission’s claim, and (2) complaint did not alleged facts that would defeat EEOC’s claim.
Reversed and remanded.
Attorneys and Law Firms
*850 Robert J. Gregory (briefed), Office of the General Counsel, Washington, DC, Caren I. Friedman (argued), Equal Employment Opportunity Commission, Washington, DC, for Plaintiff-Appellant.
Bari E. Goggins (briefed), Thomas H. Barnard, Jr. (argued and briefed), Ulmer & Berne, Cleveland, OH, John A. Coppeler (briefed), Flynn, Py & Kruse, Port Clinton, OH, for Defendant-Appellee.
Before MARTIN, Chief Judge; JONES and COLE, Circuit Judges.
Opinion
OPINION
BOYCE F. MARTIN, Jr., Chief Judge.
The Equal Employment Opportunity Commission brought an employment discrimination claim against J.H. Routh

Packing Company, pursuant to the Commission’s public enforcement authority under the Americans with Disabilities Act, 42 U.S.C. § 12117(a). The Commission appeals the district court’s grant of Routh’s motion for judgment on the pleadings. For the following reasons, we REVERSE and REMAND to the district court for further proceedings.
*851 I.
In 1995, J.H. Routh Packing Company offered Jason Polak a job as a meat cutter/trimmer, contingent upon Polak’s passing a physical examination. As part of this physical examination, Polak completed a health questionnaire and inventory in which he disclosed his history of epilepsy. He stated in the questionnaire that his epilepsy was controlled by medication and that he had experienced a seizure within the past two months. When Routh learned of this seizure, it terminated Polak’s employment, advising him that he must be seizure-free for at least six months before Routh would consider hiring him again.
Polak has taken medication for his epilepsy since he was a child, and as an adult, Polak has not experienced grand mal seizures. During the times relevant to this case, Polak experienced petit mal seizures approximately six times per year. His petit mal seizures last approximately ten to thirty seconds, during which time he is conscious and fully aware of what is happening, although his ability to talk and chew are affected. Prior to these seizures, Polak experiences a warning or “aura,” which often allows him to fight off a seizure. If he cannot prevent the seizure, he sits down for approximately one minute until the seizure passes. After resting for a few minutes, Polak is able to continue whatever he was doing prior to the seizure. Polak has held jobs requiring the use of knives, vegetable chunkers, box openers, and sharp instruments, and has never suffered an epilepsy-related injury while working with these instruments.
In December 1998, the Commission filed a complaint under the Americans with Disabilities Act against Routh on behalf of Polak and “all other similarly situated qualified individuals with disabilities.” Routh answered the complaint in February 1999. After the Supreme Court held in Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), that “the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment,” Routh moved for judgment on
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the pleadings. The Commission filed a brief in opposition to the motion, and on October 13, the district court granted Routh’s motion. The Commission appeals that decision.
II.
We review de novo a district court’s grant of judgment on the pleadings. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). The standard of review for a judgment on the pleadings is the same as that for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See id. We must “construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief.” Id. (citing Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.1990)).
The Federal Rules of Civil Procedure provide for a liberal system of notice pleading. See Fed.R.Civ.P. 8(a). The Rules “do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Vector Research, Inc. v. Howard & Howard Attys. P.C., 76 F.3d 692, 697 (6th Cir.1996).
*852 A.
The Americans with Disabilities Act defines an individual disability to be one of three things: “(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). The Commission’s complaint alleges that “[a]t all times relevant to the events alleged in this complaint Mr. Polak was a qualified individual with a disability (epilepsy or seizure disorder) who, with or without an accommodation, could perform the essential functions of the job of meat cutter/trimmer for Defendant.” Paragraph eleven of the complaint declares that Polak has taken

medication for his epilepsy since he was a child, describes the types and frequency of seizures he experiences, and explains the physical effects of his seizures. The district court found these claims insufficient, saying, “Before the EEOC can take its case to a jury, however, it must identify some major life activity ... in which Polak is substantially limited.”
The Commission has promulgated a regulation defining “major life activities” to be “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). Federal jurisprudence is unclear on the necessity of including such a major life activity in a complaint under the Act. Few circuits have addressed the issue, and the district courts that have decided the question have reached inconsistent conclusions.
The Tenth Circuit issued a confusing statement on the question in Poindexter v. Atchison, Topeka and Santa Fe Railway Co., 168 F.3d 1228, 1232 (10th Cir.1999): [W]e emphasize that in order to state a claim under the [Act], a plaintiff must articulate with precision the impairment alleged and the major life activity affected by that impairment.
This holding does not in any way change the federal notice pleading requirements. A plaintiff has the option of clarifying his or her position at the pleading stage or waiting until trial to prove with particularity the impairment and major life activity he or she asserts are at issue.
Whether plaintiffs in the Tenth Circuit must articulate the impairment and the major life activity “with precision” in the complaint, or whether they retain the option of waiting until trial “to prove with particularity the impairment and major life activity” is unclear. Poindexter seems to say both and thus provides us with little guidance.
The Third Circuit touched on the question in Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113 (3d Cir.1998). In a footnote, the court addressed the defendant’s request to affirm the district court’s dismissal on the grounds that the plaintiff was not disabled. See Menkowitz, 154 F.3d at 117 n. 2. The footnote states: [W]e decline to accept the hospital’s invitation at this stage of the litigation. Appellant in his complaint states that his disability is ‘a disorder recognized as a disability under the’ [Act] and the Rehabilitation Act.... We find this allegation, which we must accept as true, sufficient to meet the notice pleading requirements of Fed.R.Civ.P. 8 with respect to his disability.
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E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850 (2001)
The court found sufficient simply alleging that the disability is recognized under the Act, thereby implicitly including a substantially affected major life activity without requiring it to be pleaded expressly.
The Seventh Circuit also briefly discussed what a plaintiff bringing a discrimination claim under the Act must plead. In *853 Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d 959, 961 (7th Cir.1996), the court held:
The district court recognized that Homeyer’s complaint alleged that her physical condition (chronic severe allergic rhinitis and sinusitis) substantially impaired her ability to breathe and that her condition, when aggravated by [smoke], substantially limited her ability to work. With these allegations, it would seem that under the liberal federal notice pleading standards, Homeyer sufficiently pled the initial element of an ADA claim, i.e., that she suffers from a ‘disability’ as defined in the Act. Homeyer was not required to plead facts or evidence to support her allegations; she was not even required to include a theory of the case. Her complaint was clear enough to inform [the defendant] of her claim.
The court emphasizes the liberalness of notice pleading, but at the same time, the plaintiff in Homeyer pled the major life activity that her disability limited, meaning that the court did not directly address what a complaint under the Act must include. In another case, the Seventh Circuit reversed a district court’s grant of judgment on the pleadings where the plaintiff stated “quite plainly that he suffers from a psychiatric illness and has been diagnosed as a manic depressive.” Duda v. Board of Education, 133 F.3d 1054, 1059 (7th Cir.1998). The plaintiff alleged that the defendant regarded him “as disabled and substantially limited in major life activities.” Id. The court apparently found sufficient simply alleging that the defendant regarded the plaintiff as substantially limited in major life activities, rather than listing what those major life activities were.
We have been referred to a number of unpublished and non-precedential district court opinions that illustrate the confusion surrounding this issue. For example, the Northern District of Illinois has issued opinions reaching opposite conclusions. Compare Moore v. Cook County Hospital, 1997 WL 529550 at *2 (N.D.Ill.) (finding

“minimal allegations” in complaint sufficient to survive motion to dismiss “despite her failure to plead explicitly that the alleged disability substantially limits one or more major life activities”) and Andriacchi v. City of Chicago, 1996 WL 685458 at *2 (N.D.Ill.) (upholding “completely conclusory” complaint because “conclusory statements are sufficient in a complaint as long as they put the defendant on notice of the plaintiff’s claim”) with Dikcis v. Indopco, Inc., 1997 WL 211218 at *6 (N.D.Ill.), (granting motion to dismiss complaint because plaintiff did not plead “that his depression ‘substantially limited’ one or more of his ‘major life activities’ ”) and Fedor v. Illinois Department of Employment Security, 955 F.Supp. 891, 893 (N.D.Ill.1996) (“[Plaintiff] never states that his impairment substantially limits a major life activity such as working, which he must do to plead disability discrimination under the [Act].”).
Other districts have allowed complaints that did not allege a major life activity on the grounds of liberal notice pleading requirements. For example, the court in Muller v. Costello, 1996 WL 191977 (N.D.N.Y.) concluded, “Plaintiff alleges his disability to be a respiratory condition. Although plaintiff must ultimately prove that his disability is covered within the meaning of the [Act], the allegations in the complaint are sufficient to survive defendants’ motion to dismiss.” Id. at *4. In Smallberger v. Federal Realty Investment Trust, 1999 WL 126919 (E.D.Pa.), the court found “sufficient for the purposes of notice pleading” allegations “that as a result of [the plaintiff’s] illness and resulting colectomy, Plaintiff is disabled within the meaning of the [Act] and Defendant perceived Plaintiff as disabled within the *854 meaning of the [Act].” Id. at *2. However, another district court reached the opposite conclusion and dismissed a complaint when the plaintiff did not allege both an impairment and a substantial limitation on a major life activity. See Sacay v. Research Found. of City Univ. of New York, 44 F.Supp.2d 496, 501-02 (E.D.N.Y.1999).
[1] Because the case law regarding the Act’s pleading standards has reached no clear answer, today we clarify what a claimant under the Act is required to allege in her complaint. We hold that so long as the complaint notifies the defendant of the claimed impairment, the substantially limited major life activity need not be specifically identified in the pleading. Rule 8 requires only that the complaint give the defendant fair notice of the claim and its supporting facts. “Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.” Fed.R.Civ.P. 8(e)(1) (emphasis added).
An accusation of discrimination on the basis of a
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E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850 (2001)
particular impairment provides the defendant with sufficient notice to begin its defense against the claim. If the defendant cannot adequately affirm or deny whether the impairment falls under the Act’s protection, the defendant “shall so state and this has the effect of a denial.” Fed.R.Civ.P. 8(b). Additionally, if in a particular case the complaint “is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement.” Fed.R.Civ.P. 12(e). Failure to allege more specifically the major life activity at that stage may fairly result in dismissal of the complaint. See id. We note that a plaintiff would be wise to mention her specific limited major life activity, but failing to do so is not fatal to her complaint.
[2] In the present case, we find that the Commission satisfied the pleading requirements that the Federal Rules set forth. Construing the complaint in the light most favorable to the Commission and accepting all of the Commission’s factual allegations as true, we conclude that the complaint was sufficient to provide Routh with fair notice of the Commission’s claim, even without stating the particular major life activity Polak’s epilepsy limits. The Commission’s complaint does not cause us to believe that the Commission “undoubtedly can prove no set of facts in support of the claims that would entitle relief.” Grindstaff, 133 F.3d at 421. The Commission described in detail Polak’s disability and the behavior of the defendant that the Commission believes is discriminatory under the Act. The case may eventually prove unsuccessful, but the Commission has at least met the requirements of notice pleading at this stage.
B.
We must also address the separate pleading issue addressed in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), regarding self-defeating pleadings of corrective measures taken by plaintiffs. In the present case, the Commission’s complaint stated that “[w]hile completing a health questionnaire and inventory required by Defendant as part of its physical examination, Mr. Polak disclosed that he had a history of epilepsy which was controlled with medication.” The complaint also stated that “Mr. Polak has taken medication for his epilepsy since he was a child.” Routh argues that these statements are self-defeating to the Commission’s claim, based on Sutton’s holding that “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures-both positive and

negative-must be taken into account when judging whether that person is ‘substantially limited’ in a *855 major life activity and thus ‘disabled’ under the Act.” Sutton, 527 U.S. at 482, 119 S.Ct. 2139.
[3] We conclude that the facts of this case distinguish it from Sutton. In Sutton, the plaintiffs alleged that “with corrective measures their vision ‘is 20/20 or better.’ ” Sutton, 527 U.S. at 481, 119 S.Ct. 2139. Here, the Commission’s complaint did not affirmatively plead that Polak’s epilepsy has been completely eliminated. The complaint stated only that Polak takes medication for epilepsy and that on a questionnaire Polak declared that he controls his epilepsy with medication. Controlling a disability does not necessarily mean removing a disability. In fact, the complaint also describes the frequency and severity of Polak’s current seizures, implying that his epilepsy is not “controlled” in the way Routh would have us believe. Sutton itself addresses such situations: “[I]ndividuals who take medicine to lessen the symptoms of an impairment so that they can function [may] nevertheless remain substantially limited.” Id. at 488, 119 S.Ct. 2139; see also id. at 487-88, 119 S.Ct. 2139 (answering dissent’s assertion that the majority opinion will exclude from the definition of “disabled” those who take medicine for epilepsy).
Furthermore, determining whether the seizures described in the complaint constitute a disability is not a proper inquiry at the pleadings stage. Here, we must determine only whether the plaintiff “undoubtedly” can prove no set of facts entitling it to relief, and we must accept as true the Commission’s statement that “Mr. Polak was a qualified individual with a disability” even while controlling his impairment with medication. The Commission’s complaint did not allege facts that were self-defeating to its claim.
III.
The district court essentially treated the defendant’s motion for judgment on the pleadings as a motion for summary judgment,1 examining the merits of the claims rather than whether they met the minimal requirements of notice pleading: “If Polak’s epilepsy is truly uncontrolled, he is not qualified to work on an elevated platform using sharp knives, saws, electric knives and other sharp implements. If Polak’s epilepsy is controlled, he is not disabled.... Either way, an ADA claim cannot be brought on his behalf in this case.” Requiring plaintiffs to include specific allegations in their complaints will create havoc by moving our system past the basic pleading
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E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850 (2001)

requirements of the Federal Rules. Today, we stand by the Rules and require only “a short and plain statement of the claim,” not “technical forms of pleading or motions.” Fed.R.Civ.P. 8(a), (e). We find that the Commission’s complaint met these liberal requirements, and the district court erred in demanding more.

1

Courts can convert motions for judgment on the

pleadings to motions for summary judgment, provided

that all parties are “given reasonable opportunity to

present all material made pertinent to such a motion.”

Fed.R.Civ.P. 12(c). Here, however, the district court

did not explicitly mention summary judgment.

IV.
For the foregoing reasons, we REVERSE the district court’s grant of the defendant’s motion for judgment on the pleadings and REMAND for further proceedings consistent with this opinion.

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