        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                                                  October 2, 2012
                             No.11-2834

              EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
                                                   Appellant

                                              v.

                               KRONOS INCORPORATED

                              (W.D. Pa. No. 2-09-mc-00079)

Present: SLOVITER, CHAGARES and JORDAN, Circuit Judges

       1.     Motion by Appellant to Modify or Amend Opinion.

       2.     Response by Appellee in Opposition of Motion to Modify or Amend
              Opinion.

                                                          Respectfully,
                                                          Clerk/dwb
Precedential Opinion and Judgment
 dated 09/14/2012 attached.
_________________________________ORDER________________________________
The foregoing motion is hereby granted. The opinion of the Court shall be amended as
follows:

(1) Page 18, first full paragraph, the first sentence is deleted and is replaced by the
following sentence:

       To determine whether there is reasonable cause to believe a violation of 42 U.S.C.
       § 12112(b)(6) has occurred the EEOC must investigate whether the employment
       test at issue (1) “screen[s] out or tend[s] to screen out” disabled applicants; and
       can investigate whether it (2) is unrelated to the position sought by the applicant;
       and (3) is not “consistent with business necessity.”

(2) Page 19, second full paragraph, the first two sentences are deleted and are replaced
by the following sentences:

       Again, it may be insufficient for the EEOC to determine simply that there is
       reasonable cause to believe an employment test screens out disabled applicants.
       See 42 U.S.C. § 12112(b)(6). The EEOC can also determine whether there is
      reasonable cause to believe the test does not relate to the position at issue and is
      not “consistent with business necessity.” Id.

(3) Page 20, second full paragraph, the second sentence is deleted and is replaced by the
following sentence:

      All of the information in ¶ 3 is already sufficiently limited because it relates to the
      Kroger Company and is, again, generally necessary to help the EEOC understand
      whether Kroger’s use of the assessment was permissible and to investigate
      whether there is reasonable cause to believe there has been a violation of
      § 12112(b)(6).



                                                         By the Court,



                                                         /s/ Michael A. Chagares
                                                         Circuit Judge


Dated: November 15, 2012
DWB/cc:
          Corbett Anderson, Esq.
          Barbara L. Sloan, Esq.
          R. Lawrence Ashe, Jr., Esq.
          Kelly J. Koelker, Esq.
          Terrence H. Murphy, Esq.
