E.E.O.C. v. Chevron Phillips Chemical Co., Lp

• Decision Date: 05 June 2009
• Docket Number: No. 07-20661.,07-20661.
• Citation: 570 F.3d 606
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CHEVRON PHILLIPS CHEMICAL CO., LP, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

570 F.3d 606

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CHEVRON PHILLIPS CHEMICAL CO., LP, Defendant-Appellee.

No. 07-20661.

United States Court of Appeals, Fifth Circuit.

June 5, 2009.

Elizabeth Ellen Theran (argued), Washington, DC, Rodolfo Lucio Sustaita, Houston, TX, for E.E.O.C.

Scott Robert McLaughlin (argued), Jackson Walker, L.L.P., Houston, TX, Manuel Lopez, Marlene Williams, Shook,

Hardy & Bacon, Houston, TX, for Chevron Phillips Chemical Co.

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

Before GARZA and DENNIS, Circuit Judges, and MILLS, District Judge.^*

DENNIS, Circuit Judge:

This is an enforcement action brought by the Equal Employment Opportunity Commission ("EEOC") pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq. The EEOC filed a complaint on behalf of Lorin Netterville, who suffers from Chronic Fatigue Syndrome ("CFS"), alleging that her former employer, Chevron Phillips Chemical Company ("CPChem") failed to accommodate her known substantial limitations and discharged her in violation of the ADA. The EEOC now appeals from the district court's grant of summary judgment in favor of CPChem. Because we conclude that the EEOC raises genuine issues of material fact, viz., whether Netterville is disabled under the ADA, whether CPChem failed to accommodate her substantial limitations, and whether CPChem discharged her because of her disability and because she requested accommodations, we reverse and remand.

I. BACKGROUND

In 1987, while attending school and caring for her children at home, but not otherwise employed, Lorin Netterville suffered her first onset of CFS symptoms. CFS is a syndrome recognized by the Centers for Disease Control and Prevention (CDC)¹ that is characterized by severe fatigue plus four or more symptoms from the following list: "substantial impairment in short-term memory or concentration; sore throat; tender lymph nodes; muscle pain; multi-joint pain without swelling or redness; headaches of a new type, pattern or severity; unrefreshing sleep; and post-exertional malaise lasting more than 24 hours." CDC, CFS Basic Facts, available at http://www.cdc.gov/cfs/cfsbasicfacts.htm. There is no diagnostic laboratory test for CFS at this time—it is diagnosed by ruling out other causes for the symptoms presented. Id. After being diagnosed and treated for CFS in 1987, Netterville received a six-week course of B-12 and gamma globulin injections, but did not follow up with her doctor for further treatment after the injections because her symptoms disappeared.

Thirteen years later, in December 2000, Netterville began working as a temporary administrative aid for CPChem, and in April 2001 she was hired as a full-time employee. Before CPChem offered Netterville the permanent position it asked her to complete a medical history questionnaire. The questionnaire included a section titled "Have you ever had, or do you now have" followed by a list of 75 conditions, with instructions to check "yes" or "no" for each condition. CFS was not one of the conditions listed. Netterville answered "yes" to seventeen conditions on the form, including "ringing in the ears," "pneumonia," "high blood pressure," "swelling in the legs," "ulcers," "thyroid problems," "arthritis," and use of "street drugs," and provided explanations for each item. She checked "no" for the other 58 conditions, including "excessive fatigue with work or exercise" and "anemia or other blood condition/blood transfusion." At the end of the form, Netterville signed her name under the statement "I understand that any misrepresentation, false statement, or omission herein may result in the company rejecting my application, withdrawing any offer of employment, or terminating my employment at any time."

As an administrative assistant, Netterville answered and made telephone calls, wrote memos, compiled weekly reports, helped prepare for staff meetings, sorted mail, entered data, made travel arrangements, and performed other general secretarial duties. The parties agree that her job performance was satisfactory, as reflected by her last performance appraisal, which took place a few weeks before her termination.

In May 2002, as CPChem prepared to move the office in which Netterville worked to The Woodlands, Texas, she began working long hours overtime, often manually packing boxes and moving supplies. In June or July of 2002, Netterville began experiencing significant sleep disruptions, which she initially attributed to the stress of working overtime on the move. But after the move her problems worsened, to the point that eventually for two weeks of every month she got no more than one or two hours of sleep a night for six or seven days in a row, and then three or four hours of sleep a night on the remaining days, often waking up every hour. Once a month she would sleep for up to seventeen hours at a time. Netterville also began to run low-grade fevers and to suffer from headaches, disorientation, pains in her temples, stiff joints, pain in her arms and legs, and numbness in her legs, as well as aphasia and problems with memory, concentration and decision-making—at times she was unable to remember even her own son's name. She was unable to sit or walk for more than thirty minutes at a time, became hypersensitive to light and sound, and experienced crying episodes and feelings of social isolation. By February of 2003, Netterville was living with her sister, who assisted her with daily tasks like cooking, washing, shopping, showering, drying, dressing, and using the bathroom (including wiping herself), largely because of "excruciating pain" in her arms and morning nausea.

The deterioration in her sleeping patterns and ability to perform daily tasks led Netterville to consult Dr. Patricia Salvato, a specialist in immune system disorders, who had initially treated her CFS in 1987. Around January of 2003, Dr. Salvato diagnosed Netterville with a recurrence of CFS. In her affidavit, Dr. Salvato stated that she expected Netterville's CFS-related substantial limitations to be permanent. On February 4, 2003 Dr. Salvato advised Netterville that she should take a month off from work, but Netterville refused because she could not afford to do so. Dr. Salvato insisted that Netterville take at least two weeks off and provided her with a note to CPChem to that effect. The next day, February 5, 2003, Netterville approached Gary Thurman, a customer service manager who supervised her work, and gave him the note. She explained that her CFS had recurred and requested two weeks off, using one week of vacation leave and one week of sick leave. She also gave him material about CFS she had obtained on the Internet, including a fact sheet about the syndrome. Netterville testified that during this conversation she told Thurman that she had been diagnosed with CFS fifteen years earlier and that it had "gone away or had gone into remission." She also said "I know I didn't tell you—all that I had ... but I had not had symptoms in 15 years, so I really didn't think I had it and so I didn't see any need to tell you something that I didn't have." When Thurman asked how long she had been experiencing her symptoms, Netterville said "I don't know. Two years?" (Netterville was hired permanently less than two years before the conversation). Netterville testified in her affidavit that her "inability to concentrate" caused her to give Thurman the wrong information, and that when she returned to her desk she realized that in fact she had begun experiencing the symptoms less than a year prior to the conversation, in June or July of 2002 (after she had signed the questionnaire and been permanently hired), but she did not correct this misstatement because, Netterville testified, "the brain fog at that time was pretty severe ... and it was really affecting [her] memory."

The same day, February 5, 2003, Thurman emailed Steve Rugeley, a Human Resources employee, and told him that Netterville had told him that she was diagnosed with CFS "about 15 years ago, but that it had been in remission until about 2 years ago," and that she needed to take two weeks off. He also told Rugeley that in "other information of note" Netterville told him that "her sister has [CFS] and was, at one time, sick at home for two years." The next day Rugeley forwarded the email to Nancy Zamboras, a nurse in CPChem's medical department, and asked her to determine whether Netterville had noted her previous experience with CFS symptoms before being hired, and, if she had noted it, whether such a disclosure would have "prevented her from being medically acceptable for employment" and whether the condition "is something that would even be disclosed on the questionnaire."² Zamboras examined Netterville's pre-employment questionnaire, but focused only on the question about blood disorders, apparently under the incorrect assumption that CFS is a blood disorder. Zamboras then responded to Rugeley that "she did not disclose the syndrome ... there is a question asking about blood disorders and she indicated a negative response." However, nothing in the record or medical literature suggests that CFS has been identified as a blood disorder. See, e.g., CDC, CFS: Possible Causes, available at http://www.cdc.gov/cfs/cfscauses.htm. Further, although CPChem management's internal emails indicate they initially pursued the false theory that CFS is a blood disorder which Netterville would have been required to disclose on her questionnaire, CPChem subsequently abandoned that hypothesis and did not urge it here or in the district court.

Netterville was granted the two weeks of leave beginning on February 6, 2003. On February 18 she returned to Dr. Salvato for a follow-up appointment. Dr. Salvato released her to return to work with a note that said, "[r]eleased to return to full-time employment at a sub-station closer to her...