Id. (citing, 29 C.F.R. § 1630.2(o)(3)). The record shows Plaintiff provided his limitations to Defendant (Miller Dep.

224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 CFR § 1630.2(r); see also Hutton v. Elf Atochem N.A., Inc., 273 F.3d 884, 893 (9th Cir. 2001). “Because it is an affirmative defense, the employer bears the burden of proving that an employee constitutes a direct threat.”

As stated in the EEOC’s regulations implementing the ADAAA, “An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.” 29 CFR § 1630.2(j)(1)(ix). Defendant asks this Court to ignore or disbelieve Molina’s testimony that her condition substantially limited her ability to perform the major life activities of standing, sitting, lifting, and sleeping.

The ADAAA defines a “direct threat” as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3) and 29 C.F.R. § 1630.2(r). “A slightly increased risk, a mere speculative or remote risk is insufficient; there must be a high probability of substantial harm.”

In determining such “difficulty or expense,” the factors to be considered include “[t]he impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties.” 29 C.F.R. § 1630.2(p)(2)(v). This court has held that it is an undue hardship on an employer to exempt an employee from performing essential functions of the employee’s job.

Reasonable accommodations may include, but are not limited to, making exceptions or modifications to neutral policies or practices, 29 C.F.R. §1630.2(o)(3); reassignment to a different position, 42 U.S.C. § 12111(9)(B); or transfer to a lesser paying job, 29 C.F.R. § 1630.2(o) app, Altman v. N.Y. City Health & Hosps. Corp., 903 F.Supp. 503, 514 (S.D.N.Y. 1995)(reassigning doctor to attending position reasonable where he could no longer act as chief of medicine due to disability), aff’d, 100 F.3d 1054 (2d Cir. 1996).

This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2(o)(3). It is not necessary that the employee himself or herself notify the employer of a need for accommodation; the question is whether the employer has received fair notice of that need.

Gustafson, the decision maker is himself disabled, as he is deaf. See 29 C.F.R. § 1630.2(i)(1) (hearing is a “major life activity”). Accordingly, there is an inference against discrimination by Gustafson based on disability and Plaintiff has not presented evidence to overcome this presumption.

Congress added this language in order to address “unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities [which] are often just as disabling as actual impairments, and [its] corresponding desire to prohibit discrimination founded on such perceptions.” 29 C.F.R. pt. 1630, App. § 1630.2(l) (quoting 2008 Senate Statement of Managers at 9; 2008 House Judiciary Committee Report at 17). Plaintiffs therefore request that the Court deny NOV’s Motion for Summary Judgment. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 36 of 37 Page 31 of 31 Respectfully submitted, _________________________________ RICHARD R. RICE, OBA #15129 ORION A. STRAND, OBA #33279 Rice Law Firm 1401 S. Douglas Blvd., Ste. A Midwest City, Oklahoma 73130 (405) 732-6000 / 737-7446 – fax Rick@RiceLawFirm.net Orion@RiceLawFirm.net COUNSEL FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that on the 12th day of October, 2018, I delivered a true and accurate copy of the above and forgoing instrument, to all parties of record via the court’s ECF system, including but not limited to: Brandon D. Kemp Christopher E. Moore Javier Jalice William H. Payne, IV COUNSEL FOR DEFENDANT

A determination of undue hardship should be based on several factors, including: o the nature and cost of the accommodation needed; o the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; o the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); o the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; o the impact of the accommodation on the operation of the facility. See 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app.