Equal Employmetn Opportunity v. United Prcel Service 99-4367 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______________________________________________ No. 99-4367 ______________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, V. UNITED PARCEL SERVICE, Defendant/Appellee. ______________________________________________ On Appeal from the United States District Court for the Southern District of Ohio ______________________________________________ PROOF REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________ In its initial brief, the Equal Employment Opportunity Commission ("EEOC or Commission") argued that the district court improperly entered summary judgment in favor of defendant United Parcel Service ("UPS"), based on its erroneous view that the Commission's failure to accommodate claim under the Americans with Disabilities Act, 42 U.S.C. § 121101, et seq. ("ADA"), was time-barred. Specifically, we argued that UPS and the charging party, William Woods, engaged in an interactive process to effectuate an accommodation and that the duty to file a charge did not accrue until it became clear to Mr. Woods that no accommodation would be provided. In the alternative, we noted that the charge was timely filed based on principles of equitable modification. In its response brief, UPS argued that no interactive process occurred, despite evidence that both parties were actively communicating in an attempt to move Mr. Woods' to a different UPS location due to his medical problems. In claiming that the EEOC "concocted" a theory regarding the communications between UPS and Mr. Woods, UPS posits a tortured interpretation of the evidence in an attempt to transform the ongoing interactive process into separate and distinct "events." UPS also disregards case law and record evidence that firmly support the Commission's alternative contention that the limitations period should, in any event, be tolled by equitable principles. UPS' final arguments, that Mr. Woods is not a disabled individual under the ADA and that UPS had no duty to accommodate him, similarly find no support in either the evidence in the record or the terms of the statute, respectively. Thus, for the reasons discussed below, and for the reasons presented in our principal brief, the Commission urges this Court to reverse the district court's summary judgment and remand the case for further proceedings. ARGUMENT I. Mr. Woods Filed a Timely Charge From the Time UPS Failed to Provide a Reasonable Accommodation UPS first argues that, despite evidence of ongoing communication between the parties regarding Mr. Woods' requested accommodation, no interactive process occurred. (UPS Brief at 18.) Rather, UPS suggests, and the district court agreed, that the scenario presented here is comprised of separate and distinct "events," to which no interactive process is attached; or, in the alternative, if an interactive process did occur, it related only to the failure of UPS to rehire Mr. Woods in Kentucky. (UPS Brief at 19.) Based on this view of the events, UPS contends that the denial of Mr. Woods' initial transfer request triggered his obligation to file a charge and, because he did not do so within 300 days from that denial, his claim was time-barred. (UPS Brief at 22.) This argument is flawed because it misconstrues the fundamental nature of the interactive process and the specific facts of this case. The ADA requires employers to make reasonable accommodation for disabled employees. See 42 U.S.C. § 12112(b)(5)(A). Once an employee requests an accommodation, the ADA regulations state that "it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation" in order to craft a reasonable accommodation. 29 C.F.R. § 1630.2(o)(3). The Commission's interpretive guidance reinforces that directive. See 29 C.F.R. Pt. 1630, App. § 1630.9. The need for a discussion between the parties arises because "each party holds information the other does not have or cannot easily obtain." See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 316 (3d Cir. 1999) (noting that employers will not always understand what the disabled employee is capable of and the employee will not always understand what accommodations are reasonably available). Courts interpreting the interactive process have described it simply as a "bilateral discussion" or a "means to an end of forging reasonable accommodations." See, e.g., Loulsegad v. Akzo Nobel, Inc., 178 F.3d 731, 736 (5th Cir. 1999); see also Taylor, 184 F.3d at 313-17. The interactive process is not, as UPS suggests, broken down into separate and discrete "events." (UPS Brief at 18.) It is necessarily an informal process, and not a rigid or mechanistic exercise. See 29 C.F.R. § 1630.2(o)(3); Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1285 (7th Cir. 1996). Parties engage in an interactive process simply by discussing ways to achieve the necessary accommodation and may not even be aware they are engaging in an "interactive process" or choose to label it as such. Here, it is undisputed that Mr. Woods informed UPS officials of his medical problems due to allergens peculiar to the Texas area and requested a transfer to a different region as a form of accommodation.<1> Mr. Woods first contacted his union representative, David Tondre, then wrote a letter to the District Manager, William Smith, providing both men with information on his condition and his need to be relocated. Mr. Woods and his wife also spoke with Rick Montecinos, UPS' Employee Relations Manager, about his need to be transferred for medical reasons. (W. Woods Dep., Apx. at 196-98; J. Woods Dep., Apx. at 341; Montecinos Dep., Apx. at 375.) UPS rejected Mr. Woods' initial request for a transfer, claiming that it was contrary to corporate policy. (Montecinos Dep., Apx. at 379-80.)<2> Importantly, however, the parties then began discussions about alternative ways to achieve the same result. (W. Woods Dep., Apx. at 196; J. Woods Dep., Apx. at 349-53); see Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68-69 (1986) (holding that an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is provided instead); Hankins v. The Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996) (same). Whether or not it chooses to label it as such, UPS was clearly and undeniably engaging in an interactive process. See 29 C.F.R. Pt. 1630, App. § 1630.9 (noting that meeting with the employee, asking questions, and discussing available alternatives to the initial accommodation request are integral parts of the interactive process).<3> In arguing otherwise, UPS has provided no relevant authority in support of its position, and has not indicated what it believes the interactive process to be, if not a discussion between an employer and an employee on how best to accommodate a disability. Here, UPS denied Mr. Woods' request for an official transfer, but continued to seek an alternative way to achieve the same result. This scenario is specifically contemplated by the ADA. See 29 C.F.R. pt. 1630, App. at 415; Philbrook, 479 U.S. at 68-69; Hankins, 84 F.3d at 800. All the interactive process requires is that an employer make a good-faith effort to seek accommodation. Taylor, 184 F.3d at 317. This may involve meeting with the employee, requesting information about his condition and his limitations, asking the employee what he needs, and discussing available alternatives. Id.; see also 29 C.F.R. Pt. 1630, App. § 1630.9. That is exactly what occurred here.<4> Furthermore, UPS' reliance on the Seventh Circuit's decision in Soignier v. American Board of Plastic Surgery, 92 F.3d 547 (7th Cir. 1996) is entirely misplaced. In Soignier, a disabled plastic surgeon requested a number of accommodations in order to take an oral certification examination. 92 F.3d at 549. The defendant medical board granted some of the requested accommodations, but not all. Id. at 50. After failing the exam, the surgeon pursued an internal appeal and sought another exam with additional accommodations. Id. The Board informed him that "the circumstances of this examination were as accommodating as could be structured" and rejected his appeal. Id. The Seventh Circuit affirmed the district court's ruling that the plaintiff's claim, brought two and a half years after the rejection of his accommodation requests, was untimely because the Board's denial of his appeal merely confirmed its earlier, allegedly discriminatory act. Id. at 553 (holding that "'an employer's refusal to undo a discriminatory decision is not a fresh act of discrimination'") (citation omitted). The Soignier case is easily distinguishable on its facts. Unlike the circumstances here, where an employer rejects one accommodation but continues to search for an alternative, the defendant in Soignier flatly rejected the plaintiff's request for certain accommodations and, importantly, never indicated they might be provided in another way or at a later date. There was no discussion or ongoing attempt to search for alternative accommodations. It was a final decision by the Board and the plaintiff had no reason to believe otherwise. Here, UPS repeatedly ignores the crucial fact that, although his initial request was rejected, there was evidence that Mr. Woods was led to believe, in discussions with UPS officials, that an alternative accommodation would be provided. Soignier does not involve an ongoing attempt to find an accommodation, but rather the refusal of a defendant to undo a final, discriminatory decision. See Delaware State College v. Ricks, 449 U.S. 250 (1980). Because there is evidence that Mr. Woods and UPS were engaged in an ongoing process to achieve the desired accommodation, and Mr. Woods still believed that UPS intended to provide him with an accommodation, the statute of limitations on his charge did not begin to run until UPS finally informed him that he would not be hired in Kentucky. It was only then that Mr. Woods was aware that UPS would not accommodate him. See Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996) (holding statute of limitations begins to run when the plaintiff knows or has reason to know of the injury that is the basis for the action). Indeed, Mr. Woods had no reason to believe prior to this time that UPS would not place him in a position in Kentucky. Because he filed a charge within 300 days of being rejected for employment in Kentucky, his claim was not time-barred. II. Alternatively, Mr. Woods' Charge Should Be Deemed Timely Under Equitable Principles of Tolling and Estoppel UPS next challenges the Commission's position that, even if no interactive process had occurred, and the denial of the transfer request triggered his obligation to file a charge, Mr. Woods' charge was nonetheless timely under the doctrine of equitable modification. (UPS Brief at 23-26.) Based on the relevant case law regarding equitable tolling and estoppel, as well as the facts of this case, it is clear that the application of equitable principles is warranted here. As a threshold matter, we submit that the proper standard of review on this issue is de novo. Although this Court has stated that it "is unclear whether an abuse of discretion or a de novo standard should govern our review of a district court's application of the equitable tolling doctrine," Clark v. Nissan Motor Mfg. Corp. U.S.A., 1998 WL 786892, *2 n.6 (6th Cir. 1998), in both Clark and Rose v. Dole, 945 F.2d 1331, 1334 (6th Cir. 1991), the Court applied a de novo standard of review. Accord Smith-Haynie v. District of Columbia, 155 F.3d 575, 578-79 & n.4 (D.C. Cir. 1998) (noting that standard of review is "sometimes muddled in the statute of limitations context" and applying a de novo review to question of equitable tolling); FDIC v. Dawson, 4 F.3d 1303 (5th Cir. 1993) (applying de novo review to question of equitable tolling). But see Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998) (applying abuse of discretion standard of review). Here, the district court granted summary judgment but did not rule on the issue of equitable tolling, which had been raised in the Commission's summary judgment memorandum. (R.32 EEOC Memorandum in Opposition to Summary Judgment, Apx. at 92.) The court ruled as a matter of law that Mr. Woods' charge was not timely filed. (R.33 Memorandum and Order, Apx. at 125.) Because there was no exercise of discretion on this issue by the district court, and it arises only in the context of a summary judgment ruling, the issue should be addressed by this Court de novo. See Clark, 1998 WL 786892, at *2 n.6; Smith-Haynie, 155 F.3d at 578 n.4; Dawson, 4 F.3d at 1308; Rose, 945 F.2d at 1334. As to the merits of this issue, the application of equitable principles is appropriate where, as here, the employer's own acts lulled plaintiff into foregoing prompt action on his or her claim. See Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987); see also Goodhand v. United States, 40 F.3d 209, 214 (7th Cir. 1994) (holding defendant may be estopped if the plaintiff acts reasonably in light of the situation as it has been made to appear to him by the defendant). This is based on the principle that equitable modification suspends a limitations period "'until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.'" Cocke, 817 F.2d at 1561; Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). Here, the record reveals that UPS made affirmative representations which arguably caused Mr. Woods to delay filing a charge because he believed he would soon be rehired to work for UPS in Ohio.<5> (W. Woods Dep., Apx. at 185-87, 188, 189, 196, 217, 231; J. Woods Dep., Apx. at 349-53, 359-63.) Although UPS states that it did not "guarantee" Mr. Woods a job (UPS Brief at 24-25), the evidence nevertheless demonstrates that the representations to Mr. Woods' were sufficient to support his belief that he would be rehired and to delay him from filing a charge. For example, both Mr. Woods and his wife testified that Alexa Johnson assured them that, as long as he resigned from his position in Texas and arrived for the Christmas peak season, he would have a job in Kentucky. (W. Woods Dep., Apx. at 185-89; J. Woods Dep., Apx. at 359-61.)<6> Based on representations such as these, Mr. Woods reasonably believed he had no basis to bring a charge at the time he was denied the initial transfer. As the court in Cocke v. Merrill Lynch stated: [W]hile the employer is actively trying to find a position within the company for the employee, the 180-day filing period . . . is equitably tolled until such time as it is or should be apparent to an employee with a reasonably prudent regard for his rights that the employer has ceased to actively pursue such a position. . . . It is too much for the law to expect an employee to sue his employer for [discrimination] at the same time he is led to believe the employer is trying to place him in another job. 817 F.2d at 1561-62; see also Brown v. Mead Corp., 646 F.2d 1163, 1165 (6th Cir. 1981) (noting that the court applied equitable tolling where defendant made affirmative representations which caused plaintiff to delay filing); Leake v. University of Cincinnati, 605 F.2d 255, 259 (6th Cir. 1979) ("It appears to us that the University's express statements, and plaintiff's reliance thereon, could reasonably have led plaintiff to delay in the filing of her charges with the EEOC."). Viewing the facts in the light most favorable to the Commission, it is apparent that UPS' statements misled Mr. Woods into believing that if he resigned his position and moved to Kentucky, he would be rehired. It was not until he got to Kentucky, and was rejected for rehire by UPS, that Mr. Woods was aware or should have been aware that UPS would not provide any accommodation. See Andrews, 851 F.2d at 151; Cocke, 817 F.2d at 1561. Thus, defendant's actions equitably tolled the limitations period. III. Based on the Evidence Presented, A Jury Could Determine That Mr. Woods was Disabled Under the ADA UPS next revisits its argument from the district court that Mr. Woods' impairment did not rise to the level of a disability under the ADA. (UPS Brief at 28.) In not addressing this argument below, the district court implicitly and correctly determined that sufficient evidence existed from which a jury could find Mr. Woods to be disabled. (R.33 Judgment and Order, Apx. at 118.) UPS' arguments to the contrary are unavailing. The ADA defines a disability as "a physical or mental impairment that substantially limits one or more major life activities of such individual." 42 U.S.C. § 12102(2)(A). The regulations define "physical or mental impairment" as "[a]ny physiological disorder, or condition" affecting one or more specified body systems. 29 C.F.R. § 1630.2(h)(1) (1997). "Substantially limits" means an inability to perform or a significant restriction on the ability to perform as compared to the average person in the general population. 29 C.F.R. § 1630.2(j)(1). "Major life activities" include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). The Commission argued below that Mr. Woods' allergies substantially affected his major life activities of breathing, eating, caring for himself, and interacting with others. (R.32 EEOC Memorandum in Opposition to Summary Judgment, Apx. at 82-87.) UPS did not contest that these constitute major life activities; rather, UPS charged that Mr. Woods was not substantially limited in these activities. (R.23 UPS Motion for Summary Judgment, Apx. at 43-48; R.30 UPS Reply Memorandum, Apx. at 101-07.) However, based on the evidence presented in the record, a reasonable jury could determine that Mr. Woods was disabled under the ADA. Mr. Woods testified that, due to his condition, his eyes were swollen half-shut, he had fever blisters and rashes across his body, his nose and lungs were severely congested, he ran a high temperature, and was nauseated. (W. Woods Dep., Apx. at 158-68.) He testified that, as a result of these symptoms, he could not eat or sleep on a regular schedule. (W. Woods Dep., Apx. at 158, 162, 165.) He rarely went outside. He stated that he was so sick, he would not leave his home except to work. (W. Woods Dep., Apx. at 159, 168-69, 178.) While he tried many medications, none was successful in alleviating his symptoms. (W. Woods Dep., Apx. at 174, 194.) Mrs. Woods testified that her husband was so ill she was forced to make phone calls for him and take care of all the household business because he "was barely making it through a day's work." (J. Woods Dep., Apx. at 344.) Mr. Woods' doctors similarly opined that relocation was the best solution since all other treatments had failed. (W. Woods Dep., Exhs., Apx. at 320-22.). This evidence is clearly sufficient to allow a reasonable jury to find that Mr. Woods was disabled. See Cassidy v. Detroit Edison Co., 138 F.3d 629, 633 (6th Cir.1998); Radaszewski v. Metropolitan Water Reclam. Dist., 2000 WL 134709 (N.D. Ill. Feb. 2, 2000); Horvath v. Savage Mfg., Inc., 18 F. Supp.2d 1296, 1303 (D. Utah 1998). Indeed, the evidence presented here is far more substantial than in cases where it was determined that, based on the particular factual circumstances, certain allergies did not rise to the level of a disability. See, e.g., Muller v. Costello, 187 F.3d 298, 314 (2d Cir. 1999) (holding evidence that plaintiff felt "pretty good" outside of work and engaged in substantial physical activity precluded finding of disability); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996) (holding that a few instances of shortness of breath is not substantially limiting); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 17 F. Supp. 271, 273 (S.D.N.Y. 1998) (holding that "occasional trouble breathing" without evidence that daily activity restricted is insufficient to establish disability).<7> Thus, contrary to UPS' position, there is ample evidence in the record to support a finding that Mr. Woods is disabled. In choosing not to address this issue and grant summary judgment on a different basis, the district court appeared to concur. IV. Under the Terms of the Statute, UPS Had a Duty to Accommodate Mr. Woods' Disability Finally, UPS contends that it had no duty to accommodate Mr. Woods' disability. (UPS Brief at 29.) Contrary to the suggestion of UPS, however, the fact that Mr. Woods was able to perform adequately at work,<8> and even took sufficient pride in his performance to claim that he was an excellent employee, does not undermine his status as a disabled individual under the ADA or affect UPS' duty to provide reasonable accommodation. The ADA's provision on reasonable accommodation states only that discrimination includes "not making reasonable accommodations to the known physical or mental disabilities of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship . . . ." 42 U.S.C. § 12112(b)(5)(A). Importantly, neither the statute nor the regulations indicate that accommodations must only be provided in order for an employee to perform the essential functions of the job. See Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993) (holding, under the Rehabilitation Act, that employers are not relieved of duty to accommodate when "employees are already able to perform the essential functions of the job" and employer cannot "interfere, either through action or inaction, with a [disabled] employee's efforts to pursue a normal life"). CONCLUSION The district court erred in concluding, as a matter of law, that Mr. Woods' charge, which was filed immediately after it became apparent that UPS would not provide an accommodation, was not timely. Even if the initial denial of his transfer request did trigger his duty to file a charge, equitable principles render the charge timely. For these reasons, the district court's judgment should be reversed and the case remanded for further proceedings. Respectfully Submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ LISA J. BANKS Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4772 February 23, 2000 1 To the extent that UPS is arguing in its brief that Mr. Woods did not properly request an accommodation or notify UPS of his disability (UPS Brief at 9), it ignores the crucial fact that Mr. Woods wrote a letter to the UPS District Manager and both he and his wife spoke to his supervisor and union representative, detailing his medical condition, the problems it was causing, and his requested accommodation. (W. Woods Dep., Apx. at 192-93, 319-22; J. Woods Dep., Apx. at 341.) The EEOC Compliance Manual states that "requests for reasonable accommodation do not need to be in writing" and "[t]o request accommodation, an individual may use 'plain English' and need not mention the ADA or use the phrase 'reasonable accommodation.'" 2 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities (BNA), at 20-21. The actions taken here by Mr. Woods were more than sufficient to put UPS on notice of his condition and trigger the interactive process. See Bultemeyer, 100 F.3d at 1286. Furthermore, that UPS contends it did not know his condition rose to the level of a "disability" is of no consequence. Mr. Woods explained his condition to the necessary officials, provided a letter detailing his condition, and also provided letters from his doctors. (Woods Dep., Apx. at 150-53, 192-93, 319-22.) UPS had more than enough information to put it on notice that Mr. Woods might have a disability. If there was further information that UPS required before providing him an accommodation, it was incumbent upon them to ask for it. See Taylor, 184 F.3d at 314. 2 The record casts serious doubt on UPS' claim that a transfer was not possible. UPS based its decision on the general terms of the collective bargaining agreement and an unwrittten internal company policy, neither of which strictly forbid transfers. (Montecinos Dep., Apx. at 380.) Indeed, Rick Montecinos testified that both the "no transfer" policy and the "no re-hire" policy could be modified to comport with the ADA. (Montecinos Dep., Apx. at 380.) 3 UPS asserts that the Commission contradicted itself on the nature of the conversations between Mr. Woods and UPS. (UPS Brief at 20.) The defendant's reliance on mere semantics is unavailing, as there is nothing in the quotes chosen by UPS that is even remotely contradictory. All of the statements noted by UPS fully support our theory of the case that UPS encouraged/advised/suggested to Mr. Woods that, as an alternative to a formal transfer, he could resign in Texas and be rehired in northern Kentucky. 4 UPS nevertheless argues, and the district court agreed, that Mr. Woods' resignation from UPS in Texas undermines any argument that the parties were engaged in an interactive process or that Mr. Woods believed he would be given a job in Kentucky. (UPS Brief at 25.) Again, both UPS and the district court ignore critical evidence -- i.e., Mr. Woods resigned based on the representations of UPS officials that he should do so before seeking employment in Kentucky. (W. Woods Dep., Apx. at 211-13, 217, 231-32; J. Woods Dep., Apx. at 362-65.) A jury may or may not be convinced, but it is nonetheless a question of fact. Further, the unpublished decision of Lambert v. Aetna Life Ins. Co., 1999 WL 232697 (6th Cir. 1999) does not support UPS' argument. It is an unpublished decision, and therefore not controlling precedent. In addition, the cases relied upon by Lambert do not stand for the proposition for which they are offered -- i.e., that a voluntary resignation necessarily deprives a plaintiff of protection of the ADA. Rather, Keever v. City of Middleton, 145 F.3d 809 (6th Cir. 1998) addresses the effect of a plaintiff's resignation on a claim for constructive discharge and Hammon v. DHL Airways, Inc., 165 F.3d 441, 447 & n.6 (6th Cir. 1999) notes generally that an employee who resigns cannot claim an adverse employment action, unless the employer encouraged him to resign. Here, as noted above, there is evidence UPS encouraged Mr. Woods to resign. 5 UPS makes much of the fact that Mr. Woods applied to other jobs before he applied to UPS in Kentucky. (UPS Brief at 25.) This fact, however, in no way undermines our position that Mr. Woods reasonably believed that UPS intended to rehire him in Kentucky. That he chose to explore other job options once he arrived in Kentucky in no way negates the promises made to him by UPS. Similarly, the statements made my Mr. Woods in his resignation letter and employee separation form were standard, boilerplate verbiage for such documents. Because Mr. Woods was made to jump through the procedural hoops of resigning and applying for rehire in order to effectuate his original desire for a transfer, it is reasonable that he would use such language. (W. Woods Dep., Apx. at 231-32.) 6 Although UPS states that Alexa Johnson was a new employee and not aware of UPS' policy against rehire of former employees (UPS Brief at 12), that fact has no bearing on Mr. Woods' reasonable belief that he would be rehired based on what she told him. 7 UPS stated in its brief that Mr. Woods engaged in "heavy physical exertion," apparently implying that he was not disabled. (UPS Brief at 7.) However, in claiming that Mr. Woods engaged in "heavy physical" activity such as push-ups and sit-ups, UPS misrepresents his testimony. The record reflects that when asked by counsel for UPS whether he played sports, such as basketball, or worked out on exercise equipment or went to a health club, Mr. Woods testified that he did not because he was too sick. (W. Woods Dep., Apx. at 180.) He testified merely that he was "[t]rying to do push-ups and sit-ups and stuff like that" and was "trying to build his wind back up" so that he could perform at work. (W. Woods Dep., Apx. at 180) (emphasis added.) He did not testify, as UPS states, that he engaged in "heavy physical" activity. 8 UPS once again misrepresents testimony in the record. Just as Mr. Woods did not testify to engaging in heavy physical exercise, see supra note 7, Mr. Woods did not testify that he was "a lot better" and there was no evidence of any "improved condition" as UPS suggests in its brief. (UPS Br. at 6.) To the contrary, Mr. Woods testified that his condition was getting "worse and worse," that he had to "drag" himself out of the house to go to work, that he became slower at work and wasn't able to deliver as much, and that his attendance at work began to suffer from his condition. (W. Woods Dep., Apx. at 147, 167-68, 178, 184, 194.)