IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _______________________ No. 96-7089 _______________________ ETIM U. AKA, Plaintiff-Appellant, v. WASHINGTON HOSPITAL CENTER, Defendant-Appellee. ____________________________________________________ Appeal from the United States District Court for the District of Columbia ____________________________________________________ BRIEF ON REHEARING EN BANC OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _____________________________________________________ C. GREGORY STEWART General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4736 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. All parties, intervenors and amici appearing before the district court and this Court are listed in the briefs to the original panel. B. The district court's decision is unpublished but may be found at 1997 WL 435026 (D.D.C. 1996). The panel decision is reported at 116 F.3d 876 (D.C. Cir. 1997), rehearing en banc granted, (Sept. 5, 1997). C. All related cases involving the same parties and the same or similar issues of which the Commission is aware are listed in the briefs to the panel. TABLE OF CONTENTS Pages CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii GLOSSARY vi STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 2 1. Nature of the Case and Course of Proceedings 2 2. Statement of Facts 3 3. The Panel Decision 6 SUMMARY OF ARGUMENT 8 ARGUMENT I. UNDER HICKS, A COURT SHOULD NOT GRANT SUMMARY JUDGMENT WHERE THE PLAINTIFF HAS MADE OUT A PRIMA FACIE CASE OF DISCRIMINATION AND PRODUCED EVIDENCE SUFFICIENT TO SHOW THAT THE EMPLOYER'S PROFFERED REASON FOR THE CHALLENGED EMPLOYMENT DECISION IS UNWORTHY OF CREDENCE 10 II. THE COLLECTIVE BARGAINING AGREEMENT IN THIS CASE DOES NOT RELIEVE THE HOSPITAL OF ITS OBLIGATION TO REASONABLY ACCOMMODATE AKA'S DISABILITY 21 CONCLUSION 34 CERTIFICATE OF LENGTH 35 CERTIFICATE OF SERVICE 35 ADDENDUM: Statutes and Regulations TABLE OF AUTHORITIES CASES Page(s) Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir. 1995), cert. granted, 516 U.S. 1086 (1996), cert. dismissed, 116 S. Ct. 1037 (1996) 13 Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1538 (1994) 23, 24 Carter v. Tisch, 822 F.2d 465 (4th Cir. 1987) 28 Combs v. Plantation Patterns, 106 F.3d 337 (11th Cir. 1997), cert. denied, 118 S. Ct. 685 (1998) 14 Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996), cert. denied, 117 S. Ct. 1318 (1997) 8, 23, 26, 28-29 Fisher v. Vasser College, 114 F.3d 1332 (2d Cir. 1997), cert. denied, 118 S. Ct. 851 (1998) 15, 17-18 Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997), cert. denied, 60 U.S.L.W. 3458 (Feb. 28, 1998) 28 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) 11 Furnco Construction Co. v. Waters, 438 U.S. 567 (1978) 18-19 Futrell v. J.I Case, 38 F.3d 342 (7th Cir. 1994) 12 Gile v. United Airlines, Inc., 95 F.3d 492 (7th Cir. 1996) 23, 24 Gonzagowski v. Widnall, 115 F.3d 744 (10th Cir. 1997) 29 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) 12 Hidalgo v. Condado Insurance Agencies, Inc., 120 F.3d 328 (1st Cir. 1997) 15 Kline v. Tennessee Valley Authority, 128 F.3d 337 (6th Cir. 1997) 14 Kolstad v. American Dental Association, 108 F.3d 1431 (D.C. Cir. 1997), rehearing en banc granted in part, (May 28, 1997) 13 Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997) 28 MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115 (10th Cir. 1991) 17 Manzer v. Diamond Shamrock Chemical Co., 29 F.3d 1078 (6th Cir. 1994) 11-12 Milton v. Scrivner, Inc., 53 F.3d 1118 (10th Cir. 1995) 28 Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985) 11 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 10 Odima v. Westin Tucson Hotel, 53 F.3d 1484 (9th Cir. 1995) 20 Palmer v. King, 778 F.2d 878 (D.C. Cir. 1985) 13-14 Parker v. HUD, 891 F.2d 316 (D.C. Cir. 1989) 11, 12 Perdomo v. Browner, 67 F.3d 140 (7th Cir. 1995) 14-15 Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995) 14 Rhodes v. Guibertson Oil Tools, 75 F.3d 989 (5th Cir. 1996) 15 Ryther v. CARE 11, 108 F.3d 832 (8th Cir.), cert. denied, 117 S. Ct. 2510 (1997) 15 St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) 6, 8-9, 10-21 Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) 19 Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061 (3d Cir. 1996), cert. denied, 117 S. Ct. 2532 (1997) 14, 17, 19, 21 Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) 10, 11, 12 Trans World Airways v. Hardison, 432 U.S. 63 (1977) 28, 30-31 Washington v. Garrett, 10 F.3d 1421 (9th Cir. 1993) 15 Wernick v. Federal Reserve Bank, 91 F.3d 379 (2d Cir. 1996) 23 Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir. 1995) 28 STATUTES The Age Discrimination in Employment Act, 29 U.S.C. § 623(f)(2) 30 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. passim 42 U.S.C. § 2000e-2(h) 30 The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. passim 42 U.S.C. § 12111(2) 29 42 U.S.C. § 12111(9) 22, 19 42 U.S.C. § 12111(10) 24 42 U.S.C. § 12112(b)(2)(A) 22 The Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq. 29-30 REGULATIONS AND RULES 29 C.F.R. § 1614.203(g) (1996) 29 29 C.F.R. Pt. 1630, App. § 1630.2(o) 23-24 29 C.F.R. § 1630.2(p) 24 29 C.F.R. § 1630.15(d) & App. 24 34 C.F.R. § 104.2 29 34 C.F.R. § 104.11 29 34 C.F.R. § 104.12(b) 29 45 C.F.R. § 84.2 29-30 45 C.F.R. § 84.11 29-30 45 C.F.R. § 84.12(b) 29 OTHER AUTHORITY EEOC: Technical Assistance on Title I of the Americans with Disabilities Act, 8 FEP Manual (BNA) 405:6981 28, 29, 30 EEOC: Enforcement Guidance on St. Mary's Honor Center v. Hicks, 8 FEP Manual (BNA) 405:7175 15 EEOC: Opinion Letter on ADA Confidentiality Requirements & Union Rights, 8 FEP Manual (BNA) 405:7527 32 H.R. Rep. No. 485(II), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 303 23, 31-32 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 23, 31-32 Jerry M. Hunter, Potential Conflicts Between Obligations Imposed on Employers & Unions by the National Labor Relations Act & the Americans With Disabilities Act, 13 N. Ill. U.L. Rev. 207 (1993) 30 GLOSSARY 1. "ADA" refers to the Americans With Disabilities Act. 2. "ADEA" refers to the Age Discrimination in Employment Act. 3. Aff." means Affidavit. 4. "CBA" means Collective Bargaining Agreement. 5. "Commission" refers to the Equal Employment Opportunity Commission. 6. "Def" means Defendant. 7. "Dep." means Deposition. 8. "Ex." means Exhibit. 9. "Hospital" refers to Washington Hospital Center. 10. "MSJ" means Motion for Summary Judgment. 11. "Pl" means Plaintiff. 12. "R." refers to the district court's docket sheet. 13. "Rehabilitation Act" refers to the Rehabilitation Act of 1973. 14. "Title VII" refers to Title VII of the Civil Rights Act of 1964. IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ___________ No. 96-7089 ___________ ETIM U. AKA, Plaintiff-Appellant, v. WASHINGTON HOSPITAL CENTER, Defendant-Appellee. ____________________________________________ Appeal from the United States District Court for the District of Columbia ____________________________________________ BRIEF ON REHEARING EN BANC OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ____________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and other federal fair employment laws. This appeal raises important questions concerning (1) the evidence a plaintiff alleging illegal employment discrimination must present to withstand summary judgment where he cannot prove discrimination directly; and (2) the employer's duty to reassign disabled employees, as a reasonable accommodation under the ADA, in a workplace where a collective bargaining agreement covers some aspects of the employment relationship. The Commission participated as amicus before the panel, and we now offer our views to the en banc Court because resolution of these questions will impact the Commission's enforcement of federal law. STATEMENT OF THE ISSUES The Court has posed the following questions for briefing: 1. In an employment discrimination action, what evidence does the plaintiff need to present in order to survive summary judgment, and did the plaintiff do so here? 2. Does a collective bargaining agreement that permits a disabled employee to be reassigned to a vacant position if, in the "sole discretion" of the employer, the reassignment is "feasible" and "will not interfere with patient care or the orderly operation" of the workplace incorporate a different standard than that of the Americans with Disabilities Act, which requires that a disabled employee be reassigned to a vacant position if doing so would not impose an "undue hardship"? 3. If the standards do differ, and the collective bargaining agreement requires that employees with greater seniority receive preference when vacant positions are filled, does the collective bargaining agreement trump the employee's reassignment rights under the ADA, or are the seniority provisions simply a factor to be considered in the "undue hardship" analysis? STATEMENT OF THE CASE 1. Nature of the Action and Course of Proceedings This is an appeal from a final judgment of the district court dismissing the action in its entirety. Plaintiff filed suit on June 9, 1994, alleging that his employer discriminated against him on the basis of his age, national origin, and/or disability. R.1. Defendant moved for summary judgment, R. 20, and plaintiff cross-moved for summary judgment on his claim that defendant failed to reasonably accommodate his disability. R. 23. On March 29, 1996, the district court granted defendant's motion and denied plaintiff's motion, and entered judgment dismissing the case. On June 20, 1997, a panel of this Court reversed with respect to two of the plaintiff's claims. Rehearing en banc was granted on September 5, 1997. 2. Statement of Facts Etim Aka, a 55-year-old native of Nigeria, earned his bachelor's degree in accounting and his master's degree in health service management in the late 1980's, while employed full-time as an orderly at Washington Hospital Center. Aka Aff. ¶¶ 3-4 (Ex. 14, Pl's MSJ). Throughout his 20-year career as an orderly, his performance was good. Id. ¶ 4. In August 1991, Aka took a medical leave of absence for diabetes. Soon after his return, he underwent bypass surgery for a heart condition. Id. ¶ 5; Aka Dep. at 53 (Ex.3, Def's MSJ). When Aka was released for work in April 1992, he was advised to avoid activity requiring much exertion; both he and the Hospital assumed this meant that he could no longer perform the strenuous duties of an orderly. The Hospital then placed him on temporary "job search leave," a status which would allow him to retain his seniority and receive preference when competing with external candidates for vacant bargaining unit positions. Id. ¶ 9. Aka first applied for a management position. Despite his degrees, however, the acting director of personnel services, Kathleen Chapman, told him that he "had set his sights too high," and recommended that he instead apply for lower paying, clerical-type positions, such as File Clerk. Id. ¶ 10. Accordingly, he applied and was interviewed for openings as a Central Pharmacy Technician and a File Clerk; the fact that he was interviewed indicates that he met at least the minimum qualifications for these positions. Id. ¶¶ 11, 13; see also Fowler Dep. at 14 (Ex. 12, Pl's MSJ). However, the Hospital chose a laundry supply assistant for the Pharmacy Tech position, purportedly because he had volunteered at the pharmacy and Aka did not display enough enthusiasm during his interview. Breakenridge Aff. ¶¶ 4-8 (Ex.10, Def's MSJ). As for the File Clerk position, the Hospital explained that Aka had less recent clerical experience than the successful applicants. Fowler Aff. ¶¶ 4-5, 8, 10 (Ex.11, Def's MSJ). Aka continued to apply for other clerical-type positions, but did not even receive an interview. Since he did not find another job before his job search leave ended, he was terminated. The applicable collective bargaining agreement provides that vacancies in bargaining unit positions ordinarily must be posted. CBA ¶ 14.19 (Ex.8, Def's MSJ). Under the agreement, the Hospital has substantial discretion to select the applicant of its choice, with two limitations: (1) qualified current employees must receive preference over outside applicants; and (2) where the Hospital deems two applicants to be equally qualified, the applicant with the greater seniority must be selected. Id. ¶ 8.1(b). The agreement further provides that "handicapped" employees who become unable to perform their existing job duties due to disability "shall be reassigned" to a position they are able to perform "whenever, in the sole discretion of the Hospital, such reassignment is feasible and will not interfere with patient care and the orderly operation of the Hospital." Id. ¶ 14.5. The Hospital concedes that it did not attempt to reassign Aka under ¶ 14.5 of the collective bargaining agreement. Chapman attested that she has never "unilaterally" reassigned anyone under this provision. Chapman Aff. ¶ 2 (Ex., Def's Sur-Reply). She asserted that she believes reassignment of any employee except in accordance with the collectively-bargained posting and selection procedures "would be infeasible and would interfere with patient care or the orderly operation of [the Hospital]." Id. Aka brought suit, alleging that the Hospital discriminated against him on the basis of his national origin, age, and/or disability, by refusing to place him in any of the positions for which he applied. R. 1. The parties cross-moved for summary judgment. R. 20 (Hospital); 23 (Aka). Aka argued that he was entitled to summary judgment on his disability claim because the Hospital did not reassign him to a vacant position, as a reasonable accommodation of his disability. The district court granted the Hospital's motion. See Aka v. Washington Hosp. Ctr., 1996 WL 435026 (D.D.C. 1996). The court held that Aka failed to produce evidence that the Hospital's proffered reason for not selecting him -- that other applicants were better qualified -- was pretextual or that the true reason for his rejection was discriminatory. Id. at *4-*5. The court also held that the Hospital had no duty to consider reassigning Aka to a vacant position as a reasonable accommodation because, the court opined, such accommodation would conflict with terms in the collective bargaining agreement requiring the Hospital to post bargaining unit openings and select senior applicants over equally qualified junior ones. Id. at *6. The court rejected Aka's reliance on ¶ 14.5 of the agreement because Aka did not show that the Hospital abused its discretion in failing to invoke its rights under this provision. 1996 WL 435026, at *6. 3. The Panel Decision A panel of this Court, with one judge dissenting in part, reversed the judgment with respect to the Pharmacy Tech position and with regard to Aka's claim that the Hospital failed to make reasonable accommodation under the ADA. Aka v. Washington Hosp. Ctr., 116 F.3d 876, 877. The panel first analyzed Aka's intentional discrimination claims under the McDonnell Douglas framework. Id. at 880-90. According to the majority, after St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), summary judgment is inappropriate if the record indicates that the plaintiff has raised a triable issue of fact regarding both the prima facie case and pretext. 116 F.3d at 880-82 (adding that EEOC and most other courts have similarly construed the Hicks decision). Applying that standard to Aka's claims, the majority found a triable issue of fact with respect to the Pharmacy Tech position. 116 F.3d at 886-87. The Hospital explained that Aka was denied that job because he was less experienced and "enthusiastic" than the successful applicant. Id. at 887. In finding a triable issue, the majority reasoned that "the hiring official's focus on Aka's alleged lack of 'enthusiasm,'" along with evidence that she knew he had substantial relevant experience and education, "could well support the finding that Washington Hospital was motivated by discriminatory animus" since "outward indicia of 'enthusiasm' are just the sort of traits that advancing age and heart-related disability tend to diminish." Id. at 887. The panel then considered Aka's reasonable accommodation claim. The panel rejected the Hospital's argument that it was not required to reassign Aka because to do so would have violated provisions in the collective bargaining agreement governing the posting and filling of vacant bargaining unit positions. The panel concluded that Aka's requested accommodation was very likely permissible under the agreement, given the provision authorizing the transfer of disabled employees. 116 F.3d at 892-94. The panel also rejected the Hospital's argument that any potential conflict between a requested accommodation and a collective bargaining agreement relieves the employer of its duty to offer a reasonable accommodation under the ADA. 116 F.3d at 893-95. In the panel's view, such a conflict is relevant only insofar as it undermines the employee's claim that the requested accommodation is reasonable, or bolsters the employer's undue hardship defense in a specific case. Id. at 894. The panel acknowledged that its case-by-case approach "diverged" from the approach in Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996), cert. denied, 117 S. Ct. 1318 (1997), and other cases, which held that any reassignment that would conflict with collectively bargained seniority provisions is per se unreasonable. 116 F.3d at 895-96. In her dissent, Judge Henderson disagreed with the majority's Hicks analysis and would have found no triable issue of fact regarding pretext. 116 F.3d at 899-02. Judge Henderson also stated that, because the collective bargaining agreement permitted transfer of handicapped employees, the majority's discussion of the "balancing of rights under the ADA and a collective bargaining agreement [was] dictum." Id. at 903. SUMMARY OF ARGUMENT 1. This Court should hold that a court should not dismiss an employment discrimination claim on summary judgment where the plaintiff has established a prima facie case and presented sufficient evidence -- of any nature -- to raise a triable issue of fact as to whether the reasons the employer offered for the challenged employment decision are unworthy of credence. This result is compelled by the Supreme Court's decision in Hicks, where the Court, while rejecting the view that a finding of pretext compels a finding of discrimination, made clear that rejection of the proffered reasons "will permit the trier of fact to infer the ultimate fact of intentional discrimination" and "is enough at law to sustain a finding of discrimination." 509 U.S. at 511 & n.4. Applying that standard in this case, the court erred in granting summary judgment on the plaintiff's claim that the defendant discriminated against him because of his age, national origin, and/or disability. 2. This Court should hold that the collective bargaining agreement in effect at the Hospital did not relieve the Hospital of its duty under the ADA to reasonably accommodate Aka's disability by reassigning him to a vacant position for which he was qualified, when he could no longer perform his duties as an orderly. Because the agreement gives the Hospital discretion to reassign disabled employees without regard to other provisions in the agreement, the Hospital may unilaterally reassign disabled employees such as Aka without violating any aspect of the agreement, including the collectively-bargained seniority provisions. Even if the Hospital's ADA duty to reassign Aka conflicted with its responsibilities under the agreement, however, the Court should hold that the existence of the conflict would simply be one factor -- albeit an important one -- to be considered in determining whether the proposed accommodation was reasonable or would impose an undue hardship. The language and legislative history of the ADA, as well as the Commission's guidelines, all indicate that terms in a collective bargaining agreement are "relevant" to, but not "determinative" of, those issues. ARGUMENT I. UNDER HICKS, A COURT SHOULD NOT GRANT SUMMARY JUDGMENT WHERE THE PLAINTIFF HAS MADE OUT A PRIMA FACIE CASE OF DISCRIMINATION AND PRODUCED EVIDENCE SUFFICIENT TO SHOW THAT THE EMPLOYER'S PROFFERED REASON FOR THE CHALLENGED EMPLOYMENT DECISION IS UNWORTHY OF CREDENCE. In its order of January 30, 1998, this Court asked the parties to explain what evidence a plaintiff in an employment discrimination action must present in order to withstand summary judgment under Hicks and to state whether the plaintiff's evidence here satisfies that standard. In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993), the Supreme Court held that evidence discrediting the employer's proffered reasons for a challenged employment action, coupled with the prima facie case, is sufficient to sustain a finding of discrimination. A plaintiff who has made out a prima facie case of discrimination, therefore, should survive summary judgment by presenting evidence of any nature which is sufficient to permit a rational factfinder to disbelieve the proffered reasons. Applying that standard to the facts in this case, the district court erred in granting summary judgment with respect to one of Aka's claims of intentional discrimination. a. Plaintiffs, like Aka, who have no direct evidence of discrimination have traditionally relied on the familiar, three-step framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), to prove intentional discrimination. Under that framework, the plaintiff must first establish a prima facie case of discrimination, by showing that he is a member of a protected class (e.g., based on age, national origin, or disability), and suffered an adverse employment action under circumstances giving rise to an inference of illegal discrimination. Parker v. HUD, 891 F.2d 316, 321 (D.C. Cir. 1989).<1> At that point, the burden shifts to the employer to produce evidence of a legitimate non-discriminatory reason that it purportedly relied on in taking the challenged employment action. If the employer carries its burden, the plaintiff must then prove that the proffered reason is a pretext for discrimination. Hicks, 509 U.S. at 511. Although he may do this directly, by showing that a discriminatory reason more likely motivated the employer, he may also rely solely on circumstantial evidence which impugns the credibility of the proffered reason. See Burdine, 450 U.S. at 256. It is not enough, however, that the evidence simply question the validity of the employer's reasons. Rather, it must be of such quality and quantity that a reasonable factfinder could find the reasons "unworthy of credence." See id.; see also, e.g., Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir. 1994) (show "such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons . . . that a reasonable factfinder could rationally find them 'unworthy of credence'"); Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (show that reason is factually false or insufficient to motivate challenged action or that true reason is discriminatory); Parker, 891 F.2d at 321 (may include comparative evidence, evidence of employer's treatment of plaintiff while employed, statistical evidence or other evidence suggesting a policy or practice of discrimination); cf. Burdine, 450 U.S. at 259 (that employer misjudged plaintiff's qualifications does not itself expose him to liability but "may be probative to whether the employer's reasons are a pretext for discrimination"); Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (may show that employer relied on inaccurate or stigmatizing stereotypes). In evaluating the plaintiff's evidence of pretext, all of the evidence must be viewed as a whole, rather than piece by piece. Futrell v. J.I. Case, 38 F.3d 342, 350 (7th Cir. 1994). Assuming the plaintiff presents evidence establishing a prima facie case and raising a triable issue of fact as to pretext, he is entitled to have a jury determine his claim of discrimination: "'no additional proof of discrimination is required.'" Hicks, 509 U.S. at 511 (emphasis omitted). As the Supreme Court expressly held in Hicks, a finding that the reasons articulated for a challenged employment action are unworthy of credence, coupled with the prima facie case, is "enough at law to sustain a finding of [intentional] discrimination." 509 U.S. at 511 n.4. While such a finding is not compelled, "[t]he factfinder's disbelief of the reasons put forward by the defendant . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." Id. at 511 (original emphasis).<2> It then becomes a question "for the factfinder to answer" whether the employer's assertion of a non-credible reason is a cover-up for illegal discrimination. Id. at 523-24. While the Hicks case was fully tried, the same standard would apply to a motion for summary judgment. Since a trier of fact could find for the plaintiff based solely on the evidence of the prima facie case and pretext, summary judgment must be denied once the plaintiff comes forward with evidence sufficient to raise a triable issue of fact on these issues. This view of the law has been endorsed by this Court, not only in the panel opinion in this case but also in other decisions. See Barbour v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995) ("factfinder's rejection of the employer's nondiscriminatory reasons, while not sufficient to compel a finding of discrimination, nonetheless suffices to permit such a finding"), cert. granted, 516 U.S. 1086 (1996), cert. dismissed, 116 S. Ct. 1037 (1996); Kolstad v. American Dental Ass'n, 108 F.3d 1431, 1436 (D.C. Cir. 1997) (same), rehearing en banc granted on other grounds, (May 28, 1997); cf. Palmer v. King, 778 F.2d 878, 881 (D.C. Cir. 1985) (holding that plaintiff may carry her burden of proving discrimination with circumstantial evidence alone, by discrediting the defendant's proffered reason for its actions). It also accords with the great weight of other circuit court authority. See Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1066-67 (3d Cir. 1996) (en banc) (Hicks holds "that the elements of the prima facie case and disbelief of the defendant's proffered reasons are the threshold findings, beyond which the jury is permitted, but not required, to draw an inference leading it to conclude that there was intentional discrimination"), cert. denied, 117 S. Ct. 2532 (1997); Randle v. City of Aurora, 69 F.3d 441, 452-53 n.17 (10th Cir. 1995) ("the en banc court has unanimously adopted this panel's holding that a civil rights plaintiff may withstand a motion for summary judgment . . . if [he] establishes a prima facie case and presents evidence that the defendant's proffered nondiscriminatory reason is pretextual -- i.e., unworthy of belief"); see also Kline v. Tennessee Valley Auth., 128 F.3d 337, 347 (6th Cir. 1997) ("once a plaintiff has disproved the reasons offered by the defendant, the factfinder is permitted to infer discrimination"); Combs v. Plantation Patterns, 106 F.3d 1519, 1529-1538 (11th Cir. 1997) ("a plaintiff is entitled to survive summary judgment . . . if there is sufficient evidence to demonstrate the existence of a genuine issue of fact as to the truth of each of the employer's proffered reasons," adding that contrary language in Isenburgh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436 (11th Cir. 1996), is dicta and not the law of the circuit), cert. denied, 118 S. Ct. 685 (1998); Perdomo v. Browner, 67 F.3d 140, 146 (7th Cir. 1995) ("Because a fact-finder may infer intentional discrimination from an employer's untruthfulness, evidence that calls truthfulness into question precludes a summary judgment."); Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993) (because "the factfinder . . . is permitted to infer discrimination from plaintiff's proof of a prima facie case and showing of pretext, without anything more, there will always be a question for the factfinder once a plaintiff establishes a prima facie case and raises a genuine issue as to whether the employer's explanation for its action is true"); cf. Ryther v. CARE 11, 108 F.3d 832, 837 & n.4 (8th Cir.) (evidence of prima facie case and pretext is "enough to make a submissible case" unless "it is, standing alone, inconsistent with a reasonable inference of . . . discrimination"), cert. denied, 117 S. Ct. 2510 (1997).<3> Finally, this view is consistent with the Commission's enforcement guidance, which states: "a prima facie case, coupled with a non-credible justification from the employer, is sufficient to support a finding of discrimination." EEOC: Enforcement Guidance on St. Mary's Honor Center v. Hicks, 8 FEP Manual (BNA) 405:7175, 7175. Accordingly, this Court should hold that a plaintiff who presents evidence sufficient to raise a triable issue of fact regarding both the prima facie case and pretext is entitled to a trial on his claim of intentional discrimination. In her dissent to the panel decision, Judge Henderson suggests that Hicks should be read to mean "that in some but not all cases the prima facie case plus pretext suffices to make a triable issue of discrimination." 116 F.3d at 899 (Henderson, J., dissenting). She bases this reading on one statement in the Hicks decision: "'[t]he factfinder's disbelief of the reasons put forward by the defendant ... may, together with the elements of the prima facie case, suffice to show intentional discrimination.'" Id. (quoting Hicks, 509 U.S. at 511). We agree that the sentence, standing alone, is susceptible to Judge Henderson's reading. When the sentence is read in context, however, it can only mean that a trier of fact always may, but never must, draw an inference of illegal discrimination based solely on the prima facie case and pretext. Specifically, immediately after the cited sentence, the Court states, "rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination," adding that such rejection "is enough at law to sustain a finding of discrimination." Hicks, 509 U.S. at 511 & n.4 (emphasis added and omitted). The Court then continues, "upon such rejection, '[n]o additional proof of discrimination is required.'" Id. at 511 (emphasis omitted). The Court's use of the phrases "will permit" and "is enough at law to sustain," without qualification, coupled with its declaration that "no additional proof of discrimination is required," belies any notion that such evidence will suffice in only certain limited cases.<4> Judge Henderson also expresses concern that, unless evidence beyond the prima facie case and pretext is required, a plaintiff will be able to withstand summary judgment without any evidence that the employer's true reasons were discriminatory. 116 F.3d at 898 (Henderson, J., dissenting).<5> The Second Circuit apparently reached a similar conclusion in Fisher v. Vasser College, 114 F.3d 1332 (2d Cir. 1997) (en banc), cert. denied, 118 S. Ct. 851 (1998). There, the court suggested that proof that the employer's proffered reason is pretextual is simply one element of the plaintiff's overall burden of proof; he must then come up with additional evidence that the true reason is discriminatory. E.g., id. at 1346 (opining that because discrimination is only one of many possible reasons why an employer might give false explanations for employment decisions, without "evidence that illegal discrimination is present," jury could only speculate as to employer's true motivation). What Judge Henderson and the Fisher court overlook is that a trier of fact may always find powerful -- even conclusive -- evidence that illegal discrimination is present if it finds the employer gave a false explanation for the challenged employment decision: "'no additional proof of discrimination is required.'" Hicks, 509 U.S. at 511.<6> As then-Justice Rehnquist has explained, "when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race." Furnco Constr. Co. v. Waters, 438 U.S. 567, 577 (1978) (emphasis added). "If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one, such as age [or national origin or disability], may rationally be drawn. This is the common sense behind the rule of McDonnell Douglas." Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990); accord Sheridan, 100 F.3d at 1068-72. See also Hicks, 509 U.S. at 511 ("rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination"). The Hicks Court made clear that, because such an inference is reasonable, a finder of fact may always infer discrimination if it finds the proffered reason unworthy of credence. This Court should therefore decline any suggestion that it adopt a contrary standard. b. As for the evidence in this case, we believe that Aka should be permitted to get to a jury with his claim that he was treated differently because of his age, national origin, and/or disability. For the most part, we agree with the panel majority's pretext analysis and, note, indeed, that the hiring official attested that Aka told her "he was not really interested in doing pharmacy work," Breakenridge Aff. ¶ 8, a fact Aka flatly denies, Aka Aff. ¶ 12. It is also significant that, despite his solid work history, apparent intelligence, education, and initiative, Aka was rejected -- without an interview -- for a string of jobs he could have done and done successfully. Cf. Odima v. Westin Tucson Hotel, 53 F.3d 1484 (9th Cir. 1995) (well-educated plaintiff was repeatedly passed over for jobs for which he was qualified). A final, telling piece of evidence is Aka's unrebutted testimony that, when he initially attempted to capitalize on his recent advanced degrees in accounting and health services management to obtain a white collar position, the Hospital told him he was "setting his sights too high" and advised him to apply for clerical work. The Hospital has never explained why it gave this advice. If the Hospital assumed that, despite his degrees and other qualifications, he was suited only for blue or pink collar positions, a jury might conclude that the Hospital would not have made similar assumptions about a comparably educated, healthy, young, white American, and that the reason Aka was treated differently was because of his age, national origin, and/or disability. Alternatively, if the advice indicates that Aka's educational achievements and long history of good performance (which were what set him apart from other applicants) should have given him an edge for the sorts of jobs the Hospital was recommending that he seek, the fact that the Hospital purportedly considered neither factor a particular asset, see 116 F.3d at 901 (Henderson, J., dissenting) (opining he was "overqualified"), suggests that it was looking for reasons to select other applicants. Either way, the evidence supports a finding of discrimination. In her dissent to the panel decision, Judge Henderson asserts that the evidence of pretext does not raise a triable factual issue. 116 F.3d at 900-02 (Henderson, J., dissenting). While we believe that it does, this fact-specific question is an entirely separate question from whether, as a general principle, under Hicks, summary judgment is inappropriate once a threshold showing of pretext has been made. See Sheridan, 100 F.3d at 1072 (while court must evaluate whether plaintiff has cast sufficient doubt on the proffered reasons to permit finding that reasons are incredible, "once the court is satisfied that the evidence meets this threshold requirement, it may not pretermit the jury's ability to draw inferences from the testimony, including the inference of intentional discrimination drawn from an unbelievable reason proffered by the employer"). Even if the Court were to conclude that the pretext evidence here does not create a triable issue of fact, therefore, it should nevertheless hold that, where a plaintiff's evidence would permit a trier of fact to reject the employer's proffered reasons for a challenged employment action, summary judgment must be denied. II. THE COLLECTIVE BARGAINING AGREEMENT IN THIS CASE DOES NOT RELIEVE THE HOSPITAL OF ITS OBLIGATION UNDER THE ADA TO REASONABLY ACCOMMODATE AKA'S DISABILITY. In its January 30 order, this Court also asked the parties to explain whether the collective bargaining agreement in this case relieves the Hospital of its duty under the ADA to reasonably accommodate Aka's disability, by reassigning him to a vacant position for which he is qualified. In our view, because the collective bargaining agreement gives the Hospital complete discretion to reassign disabled employees like Aka without regard to other provisions in the agreement, it did not affect the Hospital's ability to meet its ADA obligations with respect to Aka. Even if the Hospital's ADA duty to reassign Aka did conflict with its responsibilities under the agreement, however, such conflict would simply be one factor -- albeit an important one -- in deciding whether the proposed accommodation was reasonable or would result in undue hardship. In evaluating Aka's claim that the Hospital failed to reassign him as a reasonable accommodation when, due to disability, he could no longer perform the essential functions of his job as orderly, even with accommodation, it is important to recognize that reassignment to a vacant position is expressly authorized under the ADA. The ADA requires employers to make reasonable accommodation, short of undue hardship, to the known physical or mental limitations of an otherwise qualified employee with a disability. 42 U.S.C. § 12112(b)(5)(A). "Reasonable accommodation" is defined to include "reassignment to a vacant position." 42 U.S.C. § 12111(9). Regarding reassignment, Congress clarified that the employee should be "qualified" for the position to which he is reassigned, but did not suggest that he need be the "most qualified." Rather, in adding the provision, Congress made a policy choice designed to prevent disabled employees, who could no longer perform the essential functions of their existing jobs, "from being out of work," and to prevent employers "from losing a valuable worker." H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 63 (1990), reprinted at 1990 U.S.C.C.A.N. 303, 345. See also S. Rep. No. 116, 101st Cong., 1st Sess. 31-32 (1989). Cf. Barth v. Gelb, 2 F.3d 1180, 1189 (D.C. Cir. 1993) (Rehabilitation Act case) ("A willingness to accommodate incumbent employees increases the likelihood that they -- and their knowhow -- will be retained by the employing agency."), cert. denied, 511 U.S. 1030 (1994). In the appendix to its ADA regulations, the Commission explained that the duty to reassign is not unlimited. See generally 29 C.F.R. Pt. 1630, App. § 1630.2(o) ("Guidance"). Since the goal is to enable current employees to remain employed, for example, the duty does not apply to applicants. See id. In addition, because reassignment need only be to a "vacant position," employers are not required to create a position for the employee or bump another employee in order to accommodate the plaintiff. Id. See also Wernick v. Federal Reserve Bank, 91 F.3d 379, 384 (2d Cir. 1996) (employer need not create job under new supervisor for plaintiff who could not work under old supervisor); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1049 (7th Cir. 1996) (no bumping, citing legislative history), cert. denied, 117 S. Ct. 1318 (1997). The new assignment need not be a promotion, but a demotion should be considered only if no equivalent position is or will become available within a reasonable time. See Guidance; Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996) (citing Guidance). Finally, the employer need not reassign the employee if it would result in undue hardship. See Guidance; Gile, 95 F.3d at 498. To establish undue hardship, the employer must prove that providing the accommodation would impose "significant difficulty or expense" on the operation of its business. 42 U.S.C. § 12111(10); 29 C.F.R. §§ 1630.2(p), 1630.15(d) & App.; see also Barth, 2 F.3d at 1186-87 (under Rehabilitation Act, employer "has the burden of proving" proposed accommodation imposes "undue financial and administrative burdens on [the employer] or requires a fundamental alteration in the nature of [its operations]"). Relevant to this inquiry are the extent to which the proposed accommodation would impose on other employees and the possibility that the accommodation would conflict with some provision in a collective bargaining agreement, thus exposing the employer to liability for an unfair labor practice under federal labor law. See 29 C.F.R. § 1630.15(d) & App. a. In this case, Aka alleged that the Hospital violated the ADA by failing to reassign him to a vacant position for which he was qualified, as a reasonable accommodation of his disability, when, because of the disability, he could no longer do his job as an orderly. In arguing that it was not required to offer this accommodation, the Hospital did not attempt to prove, factually, that reassignment would result in undue hardship. Rather, the Hospital asserted that it was relieved of any duty to reasonably accommodate because a collective bargaining agreement covers some aspects of its employment relationship with bargaining unit members, including Aka. Specifically, the Hospital pointed out that the agreement sets out procedures for the posting and filling of bargaining unit vacancies and argued that it had no obligation to reassign Aka except in accordance with those procedures. As we argued in our brief to the panel, however, the Hospital could have reassigned Aka to a vacant position without violating any provision in the collective bargaining agreement. This is because the agreement itself contains an exception which allows the Hospital to circumvent the job posting and selection procedures in order to accommodate disabled employees who, like Aka, can no longer do their current jobs even with accommodation. See CBA ¶ 14.5. Under ¶ 14.5, disabled employees may be reassigned "whenever, in the sole discretion of the Hospital, such reassignment is feasible and will not interfere with patient care or the orderly operation of the Hospital." Id. (emphasis added). By invoking its rights under this provision, the Hospital could have avoided any alleged conflict between its ADA duty to make reasonable accommodation and the requirement that it post and fill vacancies in accordance with the agreement. Reassignment may thus have been required under the ADA unless the Hospital could show undue hardship. In its order of January 30, this Court asked the parties to explain the differences, if any, between the standard for reassignment under ¶ 14.5 and the standard for undue hardship under the ADA. That question should be answered in the context of the issue presented in this case -- whether the Hospital may comply with its ADA obligation to reasonably accommodate employees with disabilities without violating the collective bargaining agreement. There would be a potential for conflict only if the ADA were to require the Hospital to reassign an employee with a disability in a situation where ¶ 14.5 did not permit the Hospital to make the reassignment outside the normal contractual framework. That is, if a particular reassignment is required by the ADA because it would not cause undue hardship to the Hospital, but the Hospital could not unilaterally make the reassignment under its sweeping authority pursuant to ¶ 14.5 to make reassignments it deems “feasible” and consistent with patient-care standards. It is manifest that no such conflict exists. Even courts which have held -- incorrectly, in our view -- that employers need never provide an accommodation which conflicts with a collective bargaining agreement have assumed that a "conflict" becomes an issue only to the extent that the employer cannot unilaterally make the requested accommodation without violating other employees' collectively-bargained seniority rights. Thus, in Eckles v. Consolidated Rail Corp., 94 F.3d at 1051-52, for example, the Seventh Circuit held that the employer was not required to guarantee, as a reasonable accommodation, that more senior employees would not bump the plaintiff from his position, where bargaining unit jobs were allocated strictly according to seniority, since the employer could not offer the accommodation without infringing on other employees' seniority rights. Here, there is no such conflict between the agreement and the ADA. The requested accommodation -- reassignment to a vacant position - would neither disrupt the settled contractual expectations of other workers nor support a claim of unfair labor practice. Employees at the Hospital have no contractual "right" to any particular position because bargaining unit jobs are not allocated on the basis of seniority -- if they were, Aka, with his 20 years of seniority would surely have found another position. In addition, in agreeing to allow the Hospital sole and complete discretion in ¶ 14.5 of the agreement, the union ceded any right it arguably might otherwise have had to insist that the Hospital conform with the job posting and selection procedures when reassigning disabled employees to vacant bargaining unit positions. Nor could the Hospital be said to "violate" the agreement, in the sense that it would be subject to liability for an unfair labor practice, if it reassigned a disabled employee, without incurring undue hardship, but subjectively believed that the reassignment was "infeasible" or would interfere with the orderly operation of the Hospital. On the contrary, a decision by the Hospital to invoke ¶ 14.5 as a basis for reassigning a disabled employee such as Aka in compliance with the ADA is effectively immune from challenge by the union or a non-disabled bargaining unit member. Under any interpretation of the ADA, therefore, the agreement here would not excuse the Hospital from offering Aka his requested accommodation. b. Even if there were a conflict between the collective bargaining agreement and the ADA, and "the collective bargaining agreement require[d] that employees with greater seniority receive preference when vacant positions are filled," see 1/30/98 Order at ¶ 3, we agree with the panel majority that the agreement would not automatically trump the ADA. See 116 F.3d at 894-97. Indeed, the Commission's guidance provides that the terms of a collective bargaining agreement are relevant but not determinative of whether a particular accommodation is reasonable or would result in undue hardship. 29 C.F.R. Pt. 1630, App. § 1630.15(d); EEOC: Technical Assistance on Title I of the ADA, 8 FEP Manual (BNA) 405:6981, 7007 ("TAM"). The contrary assumption -- that reassignment of a disabled employee except in accordance with collectively bargained seniority rights is per se unreasonable -- is derived from cases construing other federal anti-discrimination laws. See, e.g., Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987) (Rehabilitation Act); Trans World Airways v. Hardison, 432 U.S. 63 (1977) (Title VII). In both the language and the legislative history of the statute, Congress evidenced that it intended a different result under the ADA.<7> First, as noted above, the ADA expressly lists "reassignment to a vacant position" in the statute's definition of the term "reasonable accommodation." See 42 U.S.C. § 12111(9)(B) (ADA definition of "reasonable accommodation"). There is no comparable express provision in the Rehabilitation Act, 29 U.S.C. §§ 791-794, and, until recently, courts interpreted reassignment as outside the range of reasonable accommodations contemplated by that statute. See Gonzagowski v. Widnall, 115 F.3d 744, 748 (10th Cir. 1997) (explaining prior law). See also 34 C.F.R. § 104.12(b) & 45 C.F.R. § 84.12(b) (more limited definition of "reasonable accommodation" under § 504 of the Rehabilitation Act does not include reassignment); but cf. 29 C.F.R. § 1614.203(g) (adding "reassignment" as possible accommodation under § 501). In addition, both employers and unions are considered "covered entities" under the ADA and, so, are subject to the statute's duty to make reasonable accommodation. 42 U.S.C. § 12111(2); TAM at 405:7050 ("Labor unions are covered by the ADA and have the same obligation as the employer to comply with its requirements."). The Rehabilitation Act, in contrast, requires only employers who are federal agencies or recipients of federal funds to reasonably accommodate disabled employees. See 34 C.F.R. §§ 104.2 & 104.11; 45 C.F.R. §§ 84.2 & 84.11.<8> By covering both employers and unions in the ADA, Congress obviated the need for a unilateral contractual breach by the employer and provided the statutory grounds for negotiated variances from collective bargaining agreement rules in appropriate circumstances. See TAM at 405:7007 (since union and employer are both covered by ADA's duty to reasonably accommodate, "the employer should consult with the union and try to work out an acceptable accommodation"); see also Jerry M. Hunter, Potential Conflicts Between Obligations Imposed on Employers & Unions by the National Labor Relations Act & the Americans With Disabilities Act, 13 N. Ill. U.L. Rev. 207, 216 (1993) (suggesting that "creation of new legal duties under the ADA [may] impose on both employers and unions a concomitant duty under the NLRA to, at least, bargain over the proposed accommodation"). Furthermore, the ADA does not contain an explicit exemption for bona fide seniority systems, whereas both Title VII and the ADEA do have such exemptions. Compare 42 U.S.C. §§ 12101 et seq. (ADA) with 42 U.S.C. § 2000e-2(h) (Title VII) and 29 U.S.C. § 623(f)(2) (ADEA). In Hardison, 432 U.S. at 81-83, the Supreme Court relied in part on the exemption in Title VII to hold that an employer need not change an employee's shift as a reasonable accommodation to his religious beliefs where it would violate other employees' rights under a collectively bargained seniority system. The Court reasoned that because "[c]ollective bargaining . . . lies at the core of our nation's labor policy, and seniority provisions are universally included in these agreements," without "a clear and express indication from Congress," it would not hold that "an agreed upon seniority system must give way when necessary to accommodate religious observances." Id. at 79. In our view, the omission of an exemption for seniority systems in the ADA provides just such a "clear and express indication" that Congress intended that collectively-bargained seniority rules, like other contractual provisions, give way when necessary to accommodate disabled employees. This intent is confirmed in the legislative history of the ADA. There, Congress explained that, while a collective bargaining agreement "could be relevant" in determining whether a given accommodation is reasonable, it "would not be determinative on the issue." H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 63 (1990) ("House Labor Report") (also noting that employer's duty to comply with ADA is "'not affected by any inconsistent term of any collective bargaining agreement to which it is a party'"), reprinted at 1990 U.S.C.C.A.N. 267, 345; accord S. Rep. No. 116, 101st Cong., 1st Sess. 32 (1989) ("Senate Report").<9> As an example, Congress noted that, "if a collective bargaining agreement reserves certain jobs for employees with a given amount of seniority, it may be considered as a factor in determining whether it is a reasonable accommodation to assign an employee with a disability without seniority to the job." House Report at 63; Senate Report at 32. Congress also recommended that conflicts between provisions of a collective bargaining agreement and an employer's duty to provide reasonable accommodations be avoided "by ensuring that agreements negotiated after the effective date of [the ADA] contain a provision permitting the employer to take all actions necessary to comply with this legislation." House Report at 63; Senate Report at 32. As these passages make clear, Congress did not intend that any and all proposed accommodations which conflict with a collectively-bargained seniority system would be considered per se unreasonable. Of course, given the importance of seniority in American labor law, an employer could not consider making an accommodation that infringes on the seniority rights of other employees if any other accommodation, short of undue hardship, would meet the disabled employee's needs. Cf. EEOC: Opinion Letter on ADA Confidentiality Requirements & Union Rights, 8 FEP Manual (BNA) 405:7527, 7528 (union has no duty to bargain over possible variance to collective bargaining agreement unless "no other reasonable accommodation exists"). Thus, for example, if the employee could, with reasonable accommodation, do the essential functions of a job for which he had the requisite seniority, such a reassignment should be considered even if it would involve some cost. Where the only possible accommodation would entail infringement on the collectively-bargained seniority rights of one or more other employees, however, the employer, in cooperation with the union, should balance the relative costs and benefits -- including the potential burden on other employees -- and determine whether the accommodation is reasonable or would result in undue hardship. The same standards of reasonable accommodation, subject to the limitation of undue hardship, apply whether the particular request for accommodation occurs in a unionized workplace or elsewhere. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ___________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4736 CERTIFICATE OF LENGTH I hereby certify that the foregoing brief does not contain more than 8,750 words. ___________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I, Barbara L. Sloan, hereby certify that, on March 2, 1998, two copies of the foregoing Brief of the Equal Employment Opportunity Commission As Amicus Curiae were sent, by first class mail, postage prepaid, to: Gregg D. Adler LIVINSTON, ADLER, PULDA & MEIKLEJOHN, P.C. 557 Prospect Avenue Hartford, CN 06105-2922 James L. Kestrell Michael Deeds KESTRELL & ASSOCIATES 209 Midvale Street Falls Church, VA 22046 Henry Morris, Jr. ARENT FOX KINTNER PLOTKIN & KAHN 1050 Connecticut Avenue, N.W. Washington, DC 20036-5339 ____________________________________ Barbara L. Sloan ADDENDUM Page(s) Americans with Disabilities Act 42 U.S.C. § 12101 ............................... (a) 42 U.S.C. § 12111(2) ............................... (b) 42 U.S.C. § 12111(9) ............................... (c) 42 U.S.C. § 12111(10) ............................... (c) 42 U.S.C. § 12112(b)(5)(A) ............................ (d) ADA Implementing Regulations and Guidelines 29 C.F.R. Pt. 1630, App. § 1630.2(o) ................ (e) 29 C.F.R. § 1630.2(p) & App. ........................ (h) 29 C.F.R. §1 In a case such as this alleging that the employer refused to hire or place the plaintiff in a vacant position, a plaintiff may make out a prima facie case by showing that he belonged to a protected class, applied for a position the employer was attempting to fill, was rejected, and, after his rejection, the employer continued to seek applicants with the plaintiff's qualifications. Mitchell v. Baldridge, 759 F.2d 80, 84 (D.C. Cir. 1985). 2 The four dissenting Justices in Hicks would have gone further and held that rejection of the employer's reasons does not merely permit but compels a finding of discrimination. Hicks, 509 U.S. at 525-43 (Souter, J., dissenting). 3 But see Hidalgo v. Condado Ins. Agencies, Inc., 120 F.3d 328, 337 (1st Cir. 1997) (following pure "pretext plus" position, requiring both evidence of pretext and other "significantly probative" evidence of discrimination); Fisher v. Vasser College, 114 F.3d 1332, 1343 (2d Cir. 1997) (en banc) ("a prima facie case plus a finding of pretext is [not] necessarily sufficient to sustain a plaintiff's burden"), cert. denied, 118 S. Ct. 851 (1998); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, (5th Cir. 1996) (en banc) ("In tandem with a prima facie case, the evidence allowing rejection of the employer's proffered reasons will often, perhaps usually, permit a finding of discrimination without additional evidence."). 4 There may be some rare cases where a plaintiff cannot survive summary judgment despite raising a triable issue of fact as to pretext. Specifically, where unrebutted evidence or an admission by the plaintiff establishes that the decision was based on a third reason, inconsistent with a finding of discrimination, summary judgment would be appropriate. Thus, for example, in MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1121-22 (10th Cir. 1991), the Tenth Circuit granted summary judgment in an age discrimination suit even though the plaintiffs' evidence showed that the reasons given for their terminations were pretextual because the complaint itself alleged that the true reason for the terminations was not age but rather the fact that they had spoken out in opposition to the Center's alleged unethical practices. Id. As Judge Wald notes in the majority decision in this case, however, no such evidence will be available in the vast majority of cases. See 116 F.3d at 884. 5 On a related matter, Judge Henderson also suggests that certain types of pretext evidence are "more probative" of discrimination than others. 116 F.3d at 898-99 (Henderson, J., dissenting). We agree that if an ADEA plaintiff can show, for example, that the decisionmaker routinely makes slurs about older employees, he may not need as much other evidence as he otherwise would to convince the factfinder of the merits of his claim. That does not mean, however, that any particular type of evidence is required to withstand summary judgment. See Sheridan, 100 F.3d 1061 (reversing panel decision holding that pretext must be established using one of four types of evidence). The McDonnell Douglas framework is based on a recognition that direct evidence of motivation is normally unavailable. Because each case is different, therefore, the plaintiff may rely on any evidence which undermines the proffered reason and would permit the trier of fact to conclude that it is unworthy of credence. 6 The Fisher court recognized that its ruling is at odds with the statement in Hicks that "'no additional proof of discrimination is required.'" See 114 F.3d at 1343. The court stated, however, that, in making this statement, the Supreme Court was referring only to "procedure;" the plaintiff, procedurally, need not produce additional evidence. See id. This interpretation makes no sense since the Hicks Court was not addressing "procedure" but rather whether a finding of discrimination was compelled or simply permitted by the prima facie case and finding of pretext. See 509 U.S. at 511. The interpretation also fails utterly to explain the Hicks Court's preceding statements that rejection of the employer's reasons "will permit" -- and "is enough at law to sustain" -- a finding of discrimination. Id. at 511 & n.4 (emphasis added). 7 Several courts have suggested that they would apply the per se rule developed in cases interpreting the Rehabilitation Act to cases under the ADA. See Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997); but see id. at 84-88 (Mansmann, J., dissenting) (endorsing majority's reasoning in Aka); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 809-10 (5th Cir. 1997). cert. denied, 60 U.S.L.W. 3458 (Feb. 23, 1998); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995). However, these courts did not discuss the ADA's unique textual provisions or legislative history indicating that the terms in a collective bargaining agreement are relevant but not determinative in deciding the reasonableness of a proposed accommodation. The one exception is the Eckles court, which did attempt to analyze the statute. In Eckles, the Seventh Circuit concluded, based on the specific agreement there, that reassignment would not be a reasonable accommodation because positions were in effect never "vacant" -- they automatically went to the senior qualified applicant: the ADA specifies that reassignment should be only to a "vacant" position. 94 F.3d at 1047. The court added that the legislative history states that bumping is not required. Id. at 1048-50. The court stressed, however, that its ruling "should not be interpreted as a general finding that all provisions found in collective bargaining agreements are immune from limitation by the ADA duty to reasonably accommodate." Id. at 1046 n.9 & 1051-52. 8 While the Act would require a union receiving federal funds to provide reasonable accommodation to disabled participants in the funded program, the duty to accommodate would not apply to the union in its capacity as the bargaining representative of individuals employed by a covered employer. 9 Although the only accommodation at issue in this case is reassignment to a vacant position, other types of accommodations could also conflict with a collectively bargained seniority system. Vacations, parking spaces, work stations, and job duties, for example, might also be determined by seniority. See Kralik, 130 F.3d at 86 (Mansmann, J., dissenting) (accommodations listed in 42 U.S.C. § 12111(9) "will almost always conflict to some degree with established seniority systems"). The legislative history suggests that conflicts of this nature should be treated the same as conflicts involving reassignment -- the agreement is relevant but not determinative. See House Labor Report at 63 (discussing job duties); Senate Report at 32 (same).