Chapter 35
Employment Discrimination
Case 35.1
126 S.Ct. 2405, 98 Fair Empl.Prac.Cas. (BNA) 385, 87 Empl. Prac. Dec. P 42,394, 165 L.Ed.2d 345, 74 USLW
4423, 06 Cal. Daily Op. Serv. 5312, 06 Daily Journal D.A.R. 7866, 19 Fla. L. Weekly Fed. S 326
Briefs and
Other Related Documents
Supreme Court of the United States
BURLINGTON NORTHERN & SANTA FE RAILWAY CO., Petitioner,
v.
Sheila WHITE.
No. 05-259.
Argued April 17, 2006.
Decided June 22, 2006.
Justice BREYER delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964 forbids employment discrimination against “any individual” based on that individual’s “race, color,
religion, sex, or national origin.” Pub.L. 88-352, § 704, 78 Stat. 257, as amended, 42 U.S.C. § 2000e-2(a). A separate section of the Act-its anti-
retaliation provision-forbids an employer from “discriminat[ing] against” an employee or job applicant because that individual “opposed any
practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation. § 2000e-
3(a).
The Courts of Appeals have come to different conclusions about the scope of the Act’s anti-retaliation provision, particularly the reach of its
phrase “discriminate against.” Does that provision confine actionable retaliation to activity that affects the terms and conditions of
employment? And how harmful must the adverse actions be to fall within its scope?
526 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
White, the only woman working in the Maintenance of Way department at Burlington’s Tennessee Yard. In June 1997, Burlington’s
roadmaster, Marvin Brown, interviewed White and expressed interest in her previous experience operating forklifts. Burlington hired White as
a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter
and cargo spillage from the right-of-way. Soon after White arrived on the job, a co-worker who had previously operated the forklift chose to
assume other responsibilities. Brown immediately assigned White to operate the forklift. While she also performed some of the other track
laborer tasks, operating the forklift was White’s primary responsibility.
In September 1997, White complained to Burlington officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women
should not be working in the Maintenance of Way department. Joiner, White said, had also made insulting and inappropriate remarks to her
in front of her male colleagues. After an internal investigation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual-
harassment training session.
On October 10, White filed a complaint with the Equal Employment Opportunity Commission (EEOC or Commission). She claimed that the
reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner.
In early December, White filed a second retaliation charge with the Commission, claiming that Brown had placed her under surveillance and
was monitoring her daily activities. That charge was mailed to Brown on December 8.
A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should transport White from one location
to another. The specific facts of the disagreement are in dispute, but the upshot is that Sharkey told Brown later that afternoon that White
had been insubordinate. Brown immediately suspended White without pay. White invoked internal grievance procedures. Those procedures
led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her backpay for
the 37 days she was suspended. White filed an additional retaliation charge with the EEOC based on the suspension.
B
After exhausting administrative remedies, White filed this Title VII action against Burlington in federal court. As relevant here, she claimed
that Burlington’s actions-(1) changing her job responsibilities, and (2) suspending her for 37 days without pay-amounted to unlawful
retaliation in violation of Title VII. § 2000e-3(a). A jury found in White’s favor on both of these claims. It awarded her $43,500 in compensatory
CHAPTER 35: EMPLOYMENT DISCRIMINATION 527
We cannot agree. The language of the substantive provision differs from that of the anti-retaliation provision in important ways. Section
703(a) sets forth Title VII’s core anti-discrimination provision in the following terms:
“It shall be an unlawful employment practice for an employer–
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color,
religion, sex, or national origin.” § 2000e-2(a) (emphasis added).
Section 704(a) sets forth Title VII’s anti-retaliation provision in the following terms:
“It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment …
because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified,
discrimination). A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence,
such a limited construction would fail to fully achieve the anti-retaliation provision’s “primary purpose,” namely, “[m]aintaining unfettered
access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).
528 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
dividing hostile work environment claims into two categories, one in which the employer is strictly liable because a tangible employment
action is taken and one in which the employer can make an affirmative defense). Ellerth did not discuss the scope of the general anti–
discrimination provision. See 524 U.S., at 761, 118 S.Ct. 2257 (using “concept of a tangible employment action [that] appears in numerous
cases in the Courts of Appeals” only “for resolution of the vicarious liability issue”). And Ellerth did not mention Title VII’s anti-retaliation
provision at all. At most, Ellerth sets forth a standard that petitioner and the Solicitor General believe the anti-retaliation provision ought to
contain. But it does not compel acceptance of their view.
Nor can we find significant support for their view in the EEOC’s interpretations of the provision. We concede that the EEOC stated in its 1991
and 1988 Compliance Manuals that the anti-retaliation provision is limited to “adverse employment–related action.” 2 EEOC Compliance
Manual § 614.1(d), p. 614-5 (1991) (hereinafter EEOC 1991 Manual); EEOC Compliance Manual § 614.1(d), p. 614-5 (1988) (hereinafter EEOC
1988 Manual). But in those same manuals the EEOC lists the “[e]ssential [e]lements” of a retaliation claim along with language suggesting a
broader interpretation. EEOC 1991 Manual § 614.3(d), pp. 614-8 to 614-9 (complainant must show “that (s)he was in some manner subjected
to adverse treatment by the respondent because of the protest or opposition”); EEOC 1988 Manual § 614.3(d), pp. 614-8 to 614-9 (same).
Moreover, both before and after publication of the 1991 and 1988 manuals, the EEOC similarly expressed a broad interpretation of the anti–
retaliation provision. Compare EEOC Interpretive Manual, Reference Manual to Title VII Law for Compliance Personnel § 491.2 (1972)
(hereinafter 1972 Reference Manual) (§ 704(a) “is intended to provide ‘exceptionally broad protection’ for protestors of discriminatory
employment practices”), with 2 EEOC Compliance Manual § 8, p. 8-13 (1998) (hereinafter EEOC 1998 Manual), available at http://
www.eeoc.gov/policy/docs/ retal.html (as visited June 20, 2006, and available in Clerk of Court’s case file) (§ 704(a) “prohibit[s] any adverse
treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected
activity”). And the EEOC 1998 Manual, which offers the Commission’s only direct statement on the question of whether the anti-retaliation
provision is limited to the same employment-related activity covered by the anti-discrimination provision, answers that question in the
negative-directly contrary to petitioner’s reading of the Act. Ibid.
Finally, we do not accept the petitioner’s and Solicitor General’s view that it is “anomalous” to read the statute to provide broader protection
for victims of retaliation than for those whom Title VII primarily seeks to protect, namely, victims of race-based, ethnic-based, religion-based,
or gender-based discrimination. Brief for Petitioner 17; Brief for United States as Amicus Curiae 14-15. Congress has provided similar kinds of
protection from retaliation in comparable statutes without any judicial suggestion that those provisions are limited to the conduct prohibited
by the primary substantive provisions. The National Labor Relations Act, to which this Court has “drawn analogies … in other Title VII
attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional
teasing’ ”). An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor
annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimination
Law 669 (3d ed.1996) (noting that “courts have held that personality conflicts at work that generate antipathy” and “ ‘snubbing’ by
supervisors and co-workers” are not actionable under § 704(a)). The anti-retaliation provision seeks to prevent employer interference with
“unfettered access” to Title VII’s remedial mechanisms. Robinson, 519 U.S., at 346, 117 S.Ct. 843. It does so by prohibiting employer actions
that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers. Ibid. And normally petty
14. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an “act that would be immaterial
in some situations is material in others.” Washington, supra, at 661.
Finally, we note that contrary to the claim of the concurrence, this standard does not require a reviewing court or jury to consider “the nature
of the discrimination that led to the filing of the charge.” Post, at 2420 (ALITO, J., concurring in judgment). Rather, the standard is tied to the
challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the
forbidden by § 703). Our holding today makes clear that the jury was not required to find that the challenged actions were related to the
terms or conditions of employment. And insofar as the jury also found that the actions were “materially adverse,” its findings are adequately
supported.
[4] First, Burlington argues that a reassignment of duties cannot constitute retaliatory discrimination where, as here, both the former and
present duties fall within the same job description. Brief for Petitioner 24-25. We do not see why that is so. Almost every job category involves
some responsibilities and duties that are less desirable than others. Common sense suggests that one good way to discourage an employee
such as White from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less
time performing those that are easier or more agreeable. That is presumably why the EEOC has consistently found “[r]etaliatory work
White with backpay. Burlington says that “it defies reason to believe that Congress would have considered a rescinded investigatory
suspension with full back pay” to be unlawful, particularly because Title VII, throughout much of its history, provided no relief in an equitable
action for victims in White’s position. Brief for Petitioner 36.
We do not find Burlington’s last mentioned reference to the nature of Title VII’s remedies convincing. After all, throughout its history, Title VII
has provided for injunctions to “bar like discrimination in the future,” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45
find a month without a paycheck to be a serious hardship. And White described to the jury the physical and emotional hardship that 37 days
of having “no income, no money” in fact caused. 1 Tr. 154 (“That was the worst Christmas I had out of my life. No income, no money, and that
made all of us feel bad. … I got very depressed”). Indeed, she obtained medical treatment for her emotional distress. A reasonable employee
facing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former. That is to say,
an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received backpay. Cf. Mitchell,
Case 35.2
C.A.11 (Fla.),2010.
Mora v. Jackson Memorial Foundation, Inc.
597 F.3d 1201, 108 Fair Empl.Prac.Cas. (BNA) 914, 22 Fla. L. Weekly Fed. C 549
United States Court of Appeals,
CHAPTER 35: EMPLOYMENT DISCRIMINATION 531
court concluded that Defendant would prevail under a “same decision” affirmative defense. After Plaintiff filed her appeal, the Supreme
Court’s ruling in Gross v. FBL Financial Services, — U.S. —-, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), rejected “mixed motive” age discrimination
claims as well as “same decision” affirmative defenses. Considering Gross and the traditional summary judgment standard, we conclude that
material factual matters are in dispute. Therefore, we vacate the summary judgment.
I. Background
Plaintiff, who was 62 at the pertinent time, worked for Defendant as a fundraiser. She initially worked under Ms. Chea in the International Kids
anyway.” Rodriguez denies that he made the discriminatory-sounding statements, and Quevedo substantiates Rodriguez’s version of events.
Defendant moved for summary judgment, arguing that even if it had not discriminated against Plaintiff, her employment would still have been
terminated for poor job performance. The district judge agreed, concluding that Defendant met its burden of persuasion under the “same
decision” affirmative defense.
II. Discussion
contended that, given Plaintiff’s poor work, more than a preponderance of evidence showed that Defendant would have fired her, regardless
of a discriminatory motive. Plaintiff countered by contending that the burden of persuasion in a motion for summary judgment-that no
reasonable juror could find in the nonmovant’s favor-was inconsistent with the Price Waterhouse preponderance standard.
The district court disagreed with Plaintiff and concluded that no reasonable juror would dispute that Defendant had met its affirmative
defense burden. The district judge wrote that Defendant had demonstrated that Plaintiff’s termination was inevitable, given the number and
need not consider the district court’s analysis of Defendant’s affirmative defense. Instead, we look at Defendant’s motion for summary
judgment in accord with the “ordinary default rule that plaintiffs bear the risk of failing to prove their claims.” Id. at 2351. Making all
reasonable inferences in Plaintiff’s favor, we look to determine whether a material factual question exists on this record about whether
Defendant discriminated against her. We say “Yes.”
B. Direct or Circumstantial Evidence of Discrimination
FN1. Both parties spent considerable time debating whether Plaintiff’s retelling of her termination constitutes “direct” or
“circumstantial” evidence. Because Plaintiff’s account of her termination is at least circumstantial evidence of discrimination, we
need not determine if it is direct evidence on this appeal.
[5] The resolution of this case depends on whose account of the pertinent conversations a jury would credit. We conclude that a reasonable
FN2. We deny Mora’s request that this case be reassigned to a different judge on remand. Reassignment is unnecessary.
VACATED and REMANDED.
Case 35.3
C.A.9 (Ariz.),2009.
Rohr v. Salt River Project Agricultural Imp. and Power Dist.
555 F.3d 850, 21 A.D. Cases 964, 38 NDLR P 157, 09 Cal. Daily Op. Serv. 1812, 2009 Daily Journal D.A.R.
2196
designation.
BAER, Senior District Judge:
Larry Rohr appeals the district court’s grant of summary judgment in favor of his former employer, Salt River Project Agricultural
Improvement and Power District (“Salt River”). Rohr, who is an insulin-dependent type 2 diabetic, brought suit for employment
discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. Because the district court
(2002), and thereby expands the class of individuals who are entitled to protection under the ADA. Id. § 2(b), 122 Stat. at 3553.
Indeed, Congress signifies that as a result of these Supreme Court cases, “lower courts have incorrectly found in individual cases
that people with a range of substantially limiting impairments are not people with disabilities.” Id. § 2(a)(5), 122 Stat. at 3553.
Although the ADAAA, if applicable, would provide additional support for Rohr’s claims in this case, we hold that, even under our
maintaining Salt River’s welding manual, training all welding personnel, reviewing and auditing the work of subcontractors,
ensuring that all welding procedures complied with applicable codes and specifications, advising Salt River on the purchase of
new welding equipment, and counseling less experienced welders. [ER 17-19, 61.] While he often traveled to individual power
plants to perform inspections and to train welders, engineers and welding inspectors [ER 19], he claims that the majority of his
work was in an office environment. [ER 17-18, 105.]
The Plant Technical Support Group was rarely required to travel, but occasionally, when outages occurred, i.e., when one of Salt
River’s generators stopped producing power, “borrowed hands” were requested. [ER 20.] Over the course of twenty-three
years Rohr worked as a “borrowed hand” at a power station about a dozen times. The parties dispute whether this support role
was an “essential function” of Rohr’s position. [ER 18, 21.] During an outage, the work of a specialist, such as Rohr, could
require ten to twelve hours per day in the field, seven days a week. Rohr claims, without contradiction, that he had not been
assigned to such out-of-town field work since at least 2001 and that major outages had become increasingly infrequent over the
last several years.FN1 [ER 18.]
FN1. However, the record indicates that on or shortly before June 11, 2003, Rohr’s supervisor told him that he needed
to come to the office “always prepared to go out in the field at a moment’s notice.”[ER 64.]
FN2. Type 2 diabetes “[r]esults from insulin resistance (a condition in which the body fails to properly use insulin),
combined with relative insulin deficiency.” American Diabetes Association, All About Diabetes, www. diabetes. org/
about- diabetes. jsp. Type 1 diabetes, sometimes referred to as juvenile diabetes, results from the body’s failure to
produce insulin at all. “Insulin is a hormone that is needed to convert sugar, starches and other food into energy
needed for daily life.” In the United States, approximately 23.6 million children and adults, or 7.8% of the population,
annually; this necessitated a yearly medical evaluation. Although Rohr had successfully renewed his respirator medical
certification for at least ten years, in 2003 Salt River’s Health Services Department refused to administer the breathilator portion
of the test to Rohr because of his high blood pressure, which was related to his diabetes. [ER 29-30, 63, 89, 120.] When Rohr
returned on a different day, the Health Services Department again refused to administer the test because his blood pressure
was too high. [ER 31.] As a result, Rohr could not complete the medical evaluation and was unable to renew his respirator
reason. [ER 65.] He had to follow a “very demanding regimen” to manage his diabetes. In addition to daily injections of insulin,
he had to test his blood sugar three to four times a day, could not eat large meals or skip meals and needed to snack on
something every few hours. [ER 65.] During travel he had to find a way to keep his insulin refrigerated or chilled. Changes in the
length of his work day greatly affected his treatment routine. [ER 65.] Because his condition was deteriorating, his doctor had
doubled the strength of his medication and increased the units of insulin that he took each day. [ER 89.] He told his supervisor
1) No rotating shift work.
2) A workday limited to 9 hours per day.
3) Limitation on thermal stress avoiding prolonged work in high temperature poorly ventilated work areas with preference to
prolonged work in climate-controlled environments only [sic].
4) No heavy exertional activities….
6) He should be required to carry with him an immediate source of sugar such as a sugar tablet during working hours.
CHAPTER 35: EMPLOYMENT DISCRIMINATION 535
[ER 97.] Dr. Woehl disagreed with the restriction on overnight out-of-town travel recommended by Dr. Dippe because he
believed it was not travel itself that posed problems but rather the nature of the work that Rohr was asked to do during
76.]
D. Rohr Requests Removal of Travel Restriction
Rohr then wrote to his doctor, Dr. Dippe, stating that he did not believe his medical condition prevented him from doing any
travel and that Salt River had misinterpreted the doctor’s recommendation to mean that he should refrain from *857 all travel.
[SER 25.] On April 23, 2004, Dr. Dippe stated that in his opinion, “it is no longer necessary to restrict patient Larry Rohr
ongoing care from a cardiologist, Rohr had been “fairly stable for quite some time” and did not appear to be at risk for
hypoglycemia. [SER 13.] Dr. Dippe indicated that overnight travel would pose no problem so long as Rohr could monitor his
sugar level, take his insulin and medication, maintain his diet and avoid hazardous work. [SER 13.]
Rohr claims that he would have been able to travel to power plants to perform inspections or conduct trainings, as these
activities did not conflict with his restrictions, and that Salt River should have permitted him to do so. His restrictions, however,
FN3. In addition to his ADA claim, Rohr also brought a claim for employment discrimination in violation of the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., but voluntarily withdrew that claim prior to the district
court’s disposition.
II. ANALYSIS
536 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
FN4. Under the applicable federal regulations, major life activities also include functions “such as caring for oneself,
1. Rohr’s Insulin-Dependent Diabetes May Qualify As a Disability
[4][5] To determine whether an insulin-dependent type 2 diabetic like Rohr is substantially limited in his eating, we must
compare “the condition, manner or duration under which he can [eat] as compared to the condition, manner or duration under
FN5. The Supreme Court has made clear that the substantial limitation inquiry is not limited to the effects of the
impairment in the workplace. See Toyota, 534 U.S. at 200-01, 122 S.Ct. 681. Rather, the proper inquiry is whether the
Cir.1999).
[6][7] At the summary judgment stage, “precedent does not require comparative *859 or medical evidence to establish a
genuine issue of material fact regarding the impairment of a major life activity…. Rather, … a plaintiff’s testimony may suffice to
establish a genuine issue of material fact.” Head v. Glacier Northwest Inc., 413 F.3d 1053, 1058 (9th Cir.2005). However, “[t]o
65.] He must schedule each day’s blood tests, medications and food intake. [ER 89.] He “sometimes become[s] weak and dizzy
without warning,” and only when he eats something do these sensations quickly subside. [ER 90.] If he fails to follow his diet
FN6. Rohr’s dietary regimen is consistent with that recommended by the American Diabetes Association for type 2
diabetics. Type 2 diabetics must carefully plan their meals because it is important for them to eat at the same time
every day and ensure that they have the same proportion of fats, proteins and carbohydrates. See American Diabetes
Association website, at www. diabetes. org. The complications of type 2 diabetes require immediate care and, if left
(2004). Insulin injections themselves can be dangerous. Rohr stated in his deposition that it is difficult to determine how much
insulin to take, as the necessary amount varies depending on the food and activity level. [ER 47-49, 65.] Generally, food raises
blood glucose levels while exercise and insulin reduce them. But other factors play a role, too (e.g., mental stress, illness and
injury). To obtain the appropriate balance, Rohr must test his blood glucose levels through a finger stick test numerous times a
FN7. Salt River attempts to distinguish Rohr from the plaintiffs with type 1 diabetes in Fraser and Lawson v. CSX
Transp., Inc., 245 F.3d 916, 923-24 (7th Cir.2001). Salt River claims that type 1 diabetes is harder to control than Rohr’s
type 2 diabetes. [Appellee Br. 32-35.] This argument is beside the point, since the substantial limitation inquiry focuses
on the plaintiff’s condition as compared to the general population, not other diabetics. See Fraser, 342 F.3d at 1040.
2. The Americans with Disabilities Act Amendments Act of 2008
On September 25, 2008, two months after the parties’ oral argument before this *861 court, President George W. Bush signed
into law the ADAAA, which significantly expands the scope of the term “disability” under the ADA. The ADAAA became effective
on January 1, 2009, and Congress did not indicate that it may be applied retrospectively. Because we have reached our
conclusions separate and apart from the ADAAA, we need not determine whether the amendment has retroactive effect.
FN8. We recognized in 2003 that eating qualifies as such a major life activity. Fraser, 342 F.3d at 1040.
Third, and perhaps most significantly, the ADAAA rejects the requirement enunciated in Sutton that whether an impairment
substantially limits a major life activity is to be determined with reference to mitigating measures. Id. The ADAAA makes explicit
FN9. The only excepted mitigating measures are ordinary eyeglasses or contact lenses, which must be considered in
determining whether an impairment substantially limits a major life activity.
FN10. The American Diabetes Association has heralded the ADAAA as “mak[ing] it clear that Congress intends for
people with conditions such as diabetes to be covered by the law and protected from discrimination on the basis of
their diabetes.” American Diabetes Association, Americans with Disabilities Act Amendments Act and Diabetes, www.
diabetes. org/ advocacy-and-legalresources/ discrimination/employment/americans-withdisabilities-act-amendments-
1. Respirator Certification Test
Rohr argues that the respirator certification test was itself discriminatory. The ADA defines “discriminate,” inter alia, as
using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual
with a disability …unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related
for the position in question and is consistent with business necessity.
FN11. Rohr aptly notes that he might have been able to take the breathilator test at a different time of day or after
medical treatment, when his blood pressure might have been lower, or he might have been able to take the
breathilator test with medical supervision and informed consent even if his blood pressure exceeded Salt River’s
threshold. Salt River did not afford him any of these opportunities.
2. “Essential Functions” of Rohr’s Position
[14] Apart from the respirator certification test, it is undisputed that Rohr met all of Salt River’s qualification standards for a
Cir.2006) (holding that whether an employee could perform the essential functions of a job with accommodations was a factual
question for the jury).
[15] Rohr has raised a genuine issue of whether he could perform the “essential functions” of his position with accommodation.
Essential functions are “fundamental job duties of the employment position … not including the marginal functions of the
position.” See Bates, 511 F.3d at 988 (quoting 29 C.F.R. § 1630.2(n)(1)). The ADA requires that in assessing a position’s essential