Equal Employment Opportunity Commission v. Humiston-Keeling , Incorporated Cardinal Health 99-3281 No. 99-3281 ______________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _______________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. HUMISTON-KEELING, INCORPORATED, CARDINAL HEALTH, INCORPORATED and WHITMORE DISTRIBUTION CORPORATION, Defendants-Appellees. ______________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois Eastern Division The Honorable George W. Lindberg, Judge ______________________________________________________ PETITION OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING EN BANC ______________________________________________________ C. GREGORY STEWART EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel PHILIP C. SKLOVER 1081 L Street, N.W., Room 7046 Associate General Counsel Washington, D.C. 20507 (202) 663-4734 CAROLYN L. WHEELER Assistant General Counsel DORI K. BERNSTEIN Attorney STATEMENT PURSUANT TO FED. R. APP. P. 35(b) A panel of this Court affirmed summary judgment against the Equal Employment Opportunity Commission ("EEOC" or "Commission"), on its claim that Humiston-Keeling, Inc. ("HK") violated the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112(b)(5)(A), 12111(9)(B), by refusing to reassign Nancy Cook Houser to a vacant clerical position when she could no longer perform her warehouse job due to a disabling permanent injury to her right arm. The EEOC interprets the ADA to require that, absent undue hardship, an employer must modify its usual procedures for filling job vacancies to reassign an employee who, because of disability, can no longer perform her previous job to an equivalent vacant position she is qualified to perform. See EEOC: Guidance on Reasonable Accommodation Under the ADA, 8 F.E.P. Manual (BNA) 405:7601, 7621-25 (March 1, 1999) ("Reasonable Accom. Guidance"). The panel rejected the EEOC's "interpretation of the statutory provision on reassignment," slip op. at 4 (attached Addendum), and held that "the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it's the employer's consistent and honest policy to hire the best applicant for the particular job in question rather than the first qualified applicant." Id. at 6. This case involves a question of exceptional importance because the panel's interpretation of the statutory duty to provide reassignment as a reasonable accommodation under the ADA conflicts with the authoritative en banc decisions of three other United States Courts of Appeals that have construed the statutory provision in accord with the EEOC's guidance: Barnett v. U.S. Air, Inc., 2000 WL 1468743 (9th Cir., Oct. 4, 2000) (en banc) Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc) Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc)TABLE OF CONTENTS Page STATEMENT PURSUANT TO FED. R. APP. P. 35(b) i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF FACTS 1 District Court Decision 3 Panel Decision 4 ARGUMENT 5 Absent Undue Hardship, the Statutory Duty to Make Reasonable Accommodation Requires an Employer to Modify its Usual Procedures for Filling Job Vacancies to Reassign an Employee Who, Because of Disability, Can No Longer Perform Her Job, to an Equivalent Vacant Position She is Qualified to Perform. 5 CONCLUSION 15 CERTIFICATE OF SERVICE ADDENDUM EEOC v. Humison-Keeling, Inc., No. 99-3281 Slip opinion (7th Cir., Sept. 15, 2000) TABLE OF AUTHORITIES Page CASES Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc) i, 7, 9, 10, 12 Barnett v. U.S. Air., Inc., 2000 WL 1468743 (9th Cir., Oct. 4, 2000) (en banc) i, 6, 7, 10 Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996) 11 Dalton v. Subaru-Isuzu Auto., 141 F.3d 667 (7th Cir. 1998) 12, 13, 14 EEOC v. Humison-Keeling, Inc., No. 99-3281 (7th Cir., Sept. 15, 2000) i, 4, 5, 6, 7, 10, 13, 14, 15 Fedro v. Reno, 21 F.3d 1391 (7th Cir. 1994) 10 Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) 14 Malabarba v. Chicago Tribune, 149 F.3d 690 (7th Cir. 1998) 14 Matthews v. Commonwealth Edison, 128 F.3d 1194 (7th Cir. 1997) 14 Ransom v. State of Ariz. Bd. of Regents, 983 F. Supp. 895 (D. Ariz. 1997) 11 Robinson v. Shell Oil, 117 S. Ct. 843 (1997) 9 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc) i, 6, 7, 9, 10, 11, 12, 14, 15 Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538 (7th Cir. 1995) 10 Page STATUTES Americans With Disabilities Act of 1990, 42 U.S.C. § 12101(a)(8) 8 42 U.S.C. § 12111(9)(B) i, 8, 11, 15 42 U.S.C. § 12111(10) 12 42 U.S.C. § 12112(a) 10, 11 42 U.S.C. § 12112(b)(5)(A) i, 8, 12, 13, 15 42 U.S.C. § 12116 8 42 U.S.C. § 12117 8 LEGISLATIVE HISTORY H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. (1990) 8, 13 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 8, 12, 13 ADMINISTRATIVE GUIDANCE 29 C.F.R. Pt. 1630, App. § 1630.2(o) 8, 12, 14 EEOC: Guidance on Reasonable Accommodation Under the ADA, 8 F.E.P. Manual (BNA) 405:7601 (March 1, 1999) i, 8, 9, 10, 11, 12, 13, 15 EEOC: Guidance on Workers' Compensation and ADA, 8 F.E.P. Manual (BNA) 405:7391 (Sept. 3, 1996) 8, 9 STATEMENT OF FACTS Nancy Cook Houser began working for HK, a wholesale distributer of pharmaceutical products and health and beauty aids, in September 1990. R37 (Pl's 12(m), p3, ¶14)<1>. In May 1992, while working as a stocker in HK's warehouse, Houser injured her right arm, R31 (Def's 12(m), p5, ¶27), and was diagnosed with lateral epicondylitis (a/k/a "tennis elbow"). R37 (Pl's 12(m), p3, ¶11). Over the next seven months, Houser received various medical treatments, including surgery, in an effort to improve her physical condition. Id. (Ex9 - Work Capacity Rpt. p1). During this period, when Houser was able to work, HK gave her light duty assignments in the warehouse, consistent with her medical restrictions. R31 (Def's 12(m), pp7-8, ¶¶40-46). When she was unable to work due to her condition, Houser remained on medical leave and received workers' compensation benefits. R37 (Pl's 12(m), p7, ¶37). In January 1993, Houser's doctor concluded that she had reached maximum recovery and released her to return to work in a "permanent light duty" position, with no lifting with her right arm.<2> R37 (Pl's 12(m), Ex9 - 1/7/93 Release & 1/8/93 Release). When Houser informed HK of her permanent restrictions and requested a job consistent with her physical limitations, HK assigned her to work the night shift in the warehouse as a product picker, using a reconfigured picking apron so she could gather items using only one arm. Id. (Ex3 - Meserve Dep. p60); R31 (Def's 12(m), p9, ¶¶51-53). Houser attempted to do the job for a single shift, but found it very difficult to perform effectively using only her left arm. R37 (Pl's 12(m), Ex1, Houser Dep. pp355-57, pp370-77). Houser worked much more slowly than the other pickers, id. (p357, p377), and experienced pain and stiffness in her right arm. Id. (Pl's 12(m), p6, ¶29). After completing her shift, Houser visited her doctor, who advised against performing as a picker. Id. (pp6-7, ¶¶30-31). Houser informed HK personnel director Rich Meserve that she could not perform the picking job effectively using the reconfigured apron, and her doctor had advised against it. R31 (Def's 12(m), p11, ¶62). The next day, HK placed Houser in a temporary light duty job as a "greeter" assigned to escort visitors through the warehouse while the office was under construction. Id. (p11, ¶64). Houser remained in the greeter position until the temporary assignment ended in April 1993, when Meserve told her that unless she was willing to take the modified picker job, at reduced pay, "she could not be accommodated and would have to go back on workers' compensation" leave, but that "if she improved, she could come back to work." Id. (pp11-12, ¶65, ¶67). Pursuant to its Extended Absence Policy, HK discharged Houser in December 1993 because she had been off work for more than six months. Id. (p20, ¶¶119-20). Between January 1993, when Houser informed HK that she was permanently restricted to light duty work, and December 1993, when HK terminated her employment, Houser repeatedly asked about the possibility of reassignment to an office job she could perform consistent with her physical limitations. R45 (Reply to Def's 12(n), p25, ¶137). Houser gave Meserve a copy of her resume, which showed prior work experience performing data entry, accounting, record-keeping, and secretarial tasks. Id. (Ex4 - Resume). In early 1993, Houser met with HK President Larry Olin and discussed her desire to continue working for HK. R37 (Pl's 12(m), Ex16 - Olin Dep. pp21-23). Olin surmised that Houser needed some kind of accommodation, and directed Meserve to "please do whatever you can do to accommodate her, so long as she's able to perform her responsibilities, whatever was assigned to her." Id. (p24). Notwithstanding Olin's directive, Meserve did not consider reassigning Houser to an office vacancy to accommodate her medical restrictions, R38 (Def's Excerpts - Meserve Dep. p67), but instead required her to compete for posted jobs under the company's regular procedures for filling vacancies. R37 (Pl's 12(m), Ex3 - Meserve Dep. pp107-08). HK's usual practice was to interview only the top two or three qualified candidates for a posted job. Id. (p9, ¶48). During the relevant period, Houser applied and interviewed for several vacant office jobs.<3> Id. (pp10-15, ¶65, ¶¶74-75, ¶81, ¶85). HK asserted that a more qualified person was selected for each of the clerical vacancies. Id. (Ex3 - Meserve Dep. p112). District Court Decision The district court granted summary judgment for HK. R67 (MemOp). The court found triable questions of fact whether Houser's permanent impairment to her right arm substantially limited her ability to work, id., pp13-16, and whether she was qualified for a vacant office job. Id., p17. The court ruled as a matter of law, however, that HK met its statutory obligation to provide Houser with a reasonable accommodation. Id., p29. The court determined that "even if the modified picker position was unworkable," HK "met its subsequent burden to consider Houser for alternative positions." Id., p22. According to the court, "the office positions paid more, involved more responsibility, were skilled, and had no night shift." Id., p28. Regardless of whether these jobs were "`promotions' over the warehouse positions," the court found "they were above the `equivalent position' for which an employer is required to consider an employee with a disability who can no longer perform her own position." Id. The court therefore concluded that HK met any duty it had under the ADA by "following its general hiring practices as to Houser," i.e., requiring her to compete for clerical vacancies and selecting the most qualified candidate for each position. Id., pp26-28. In denying reconsideration, the court held that HK was not required to make an exception to its "legitimate, nondiscriminatory" policy of choosing the best qualified candidate to fill a job vacancy in order to accommodate Houser's need for a job that met her medical restrictions. R80 (MemOp pp3-4). Panel Decision The appellate panel affirmed summary judgment for HK. The panel "assume[d] without having to decide" that the permanent impairment of Houser's right arm "was a sufficiently significant restriction of a major life activity to count as a disability within the meaning of the statute." Slip op. at 2. The panel characterized the "one-arm picker" job as "a failed experiment," and "assume[d]" that, "the experiment having failed," HK was not "excused from further efforts to accommodate Houser's disability." Id. at 2-3. The panel agreed with the EEOC that "[a]ny further attempt at accommodation would have to take the form of a reassignment." Id. at 3. The panel, however, did "not agree with the Commission's interpretation of the statutory provision on reassignment." Id. at 4. The panel emphasized that "Houser's disability . . . had nothing to do with the office jobs for which she applied," and rejected the EEOC's position "that her unrelated disability, a disability that put her at no disadvantage in competing for an opening in an office job, nevertheless entitled her to be given more consideration than nondisabled workers." Id. In the panel's view, "all that Houser's employer had to do by way of a reasonable accommodation was to allow Houser to compete for jobs for which she was qualified and to obtain any job for which she was the best applicant." Id. at 5. The panel rejected the EEOC's position that such a limited construction would render the duty to provide reassignment as a reasonable accommodation redundant of the ADA's broad general prohibition against disability-based discrimination in all aspects of employment, including job assignment.<4> Even under its more restrictive interpretation, the panel maintained, [p]lenty is left" of the statutory "duty to reassign a disabled worker to a vacant position." Id. The reassignment provision, the panel reasoned, indicates that the duty to provide "reasonable accommodation" may extend beyond "efforts to enable a disabled worker to do the job for which he was hired," and "makes clear that the employer must also consider the feasibility of assigning the worker to a different job in which his disability will not be an impediment to full performance." Id. In the panel's view, "if the reassignment is feasible and does not require the employer to turn away a superior applicant, the reassignment is mandatory," but the statute does not "requir[e] the employer to give him the job even if another worker would be twice as good at it, provided only that this could be done without undue hardship to the employer."<5> Id. ARGUMENT Absent Undue Hardship, the Statutory Duty to Make Reasonable Accommodation Requires an Employer to Modify its Usual Procedures for Filling Job Vacancies to Reassign an Employee Who, Because of Disability, Can No Longer Perform Her Job, to an Equivalent Vacant Position She is Qualified to Perform. The panel's holding that an employer's "consistent and honest policy to hire the best applicant for the particular job in question" effectively trumps the statutory duty to accommodate a qualified disabled employee through reassignment, slip op. at 9, conflicts directly with the EEOC's administrative interpretation of the statute and conflicts with the en banc opinions of three sister circuits. The EEOC and these Courts have rejected the narrow construction of the reassignment provision adopted by the panel in this case and ruled that, absent undue hardship, the ADA requires an employer to reassign a disabled employee to an equivalent vacancy if she is qualified for the job and can no longer perform her former job, with or without accommodation. See Barnett v. U.S. Air, Inc., 2000 WL 1468743, *11 (9th Cir., Oct. 4, 2000) (en banc) ("If there is no undue hardship, a disabled employee who seeks reassignment as a reasonable accommodation, if otherwise qualified for a position, should receive the position rather than merely have an opportunity to compete with non-disabled employees.");<6> Smith v. Midland Brake, 180 F.3d 1154, 1164 (10th Cir. 1999) (en banc) (rejecting "narrow definition of reassignment" which would impose "no more than a duty merely to consider without discrimination a disabled employee's request for reassignment along with all other applications" for a vacancy); Aka v. Washington Hospital Center, 156 F.3d 1284, 1305 (D.C. Cir. 1998) (en banc) ("interpretation of the reassignment provision as mandating nothing more than that the employer allow the disabled employee to submit his application along with all of the other candidates" for vacancy "would render that provision a nullity").<7> The Ninth, Tenth, and D.C. Circuits, like the EEOC, based their interpretation of the reassignment provision on the text, structure, and history of the ADA. The ADA specifically defines prohibited discrimination to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified ... employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business." 42 U.S.C. § 12112(b)(5)(A). The statute defines "reasonable accommodation" to include "reassignment to a vacant position" and "appropriate adjustment or modifications of ... policies." 42 U.S.C. § 12111(9). The ADA Committee Reports explain Congress's purpose in requiring reassignment as a reasonable accommodation: "If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and the employer from losing a valuable worker." H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 62 (1990) ("House Labor Rpt."); S. Rep. No. 116, 101st Cong., 1st Sess. 30-31 (1989) ("Senate Rpt."). Congress thus included reassignment in the statutory definition of reasonable accommodation as a means to retain disabled employees as productive members of the workforce, and thereby to further "the Nation's proper goals regarding individuals with disabilities" by assuring their "full participation, independent living, and economic self-sufficiency." 42 U.S.C. § 12101(a)(8). The EEOC, charged by Congress to interpret and enforce Title I of the ADA, 42 U.S.C. §§ 12116, 12117, has issued rules and interpretive guidance, based on the statutory text, structure, and legislative record, which address the scope of an employer's duty to provide reassignment to a vacant position as a reasonable accommodation. See 29 C.F.R. Pt. 1630, App. §1630.2(o); Reasonable Accom. Guidance, 7621-25; EEOC: Guidance on Workers' Compensation and ADA, 8 F.E.P. Manual (BNA) 405:7391, 7400 (Sept. 3, 1996) ("Workers' Comp. Guidance"). As construed by the Commission, reassignment to an equivalent vacant position is a reasonable accommodation that "must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship." Reasonable Accom. Guidance, at 7621; see also Workers' Comp. Guidance at 7400. The other courts that have addressed this issue have agreed with the EEOC's construction of the reassignment provision. As the D.C. Circuit stated, the "plain meaning" of the verb "to assign ... means 'to appoint (one) to a post or duty.'" Aka, 156 F.3d at 1302 (quoting Webster's Third New International Dictionary). Thus, the ordinary understanding of "[t]he core word 'assign' implies some active effort on the part of the employer." Id. at 1304. "An employee who is allowed to compete for jobs precisely like any other applicant," the D.C. Circuit reasoned, "has not been 'reassigned'; he may have changed jobs, but he has done so entirely under his own power, rather than having been appointed to a new position." Id. at 1302; 1304 ("An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been 'reassigned.'"). The Tenth Circuit in Smith found the D.C. Circuit's textual analysis persuasive, and quoted it in full. Smith,180 F.3d at 1164. The "literal language" of the statute, the Tenth Circuit declared, requires "reassignment to a vacant position," and "does not say 'consideration of a reassignment to a vacant position.'" Id. The construction of the reassignment provision adopted by these Courts and the EEOC also finds support in the statutory structure. See Robinson v. Shell Oil, 117 S. Ct. 843, 848 (1997) ("broader context provided by other sections of the statute provides considerable assistance" in interpreting ambiguous statutory terms). Because "the ADA separately prohibits an employer from discrimination against a disabled person in his or her application for a vacant job," Smith, 180 F.3d at 1164 (citing 42 USC § 12112(a)), including reassignment in the duty to accommodate would be "redundant" if it required only nondiscriminatory consideration in competition with other employees. Id. at 1164-65; Barnett, at *10; Aka, 156 F.3d at 1304. Thus, the duty of reassignment under the ADA "must mean something more than the mere opportunity to apply for a job with the rest of the world." Smith, 180 F.3d at 1164; Barnett, at *10; Aka, 156 F.3d at 1304; see also Reasonable Accom. Guidance, at 7625 n.87 (suggestion that "reassignment means simply an opportunity to compete for a vacant position ... nullifies the clear statutory language stating that reassignment is a form of reasonable accommodation"). The panel's conclusion that "all that Houser's employer had to do by way of a reasonable accommodation was to allow Houser to compete for jobs for which she was qualified and to obtain any job for which she was the best applicant," slip op. at 5, ignores that the plain meaning of the term "accommodation" requires a departure from an employer's usual way of doing things. This Court has found it "plain enough what 'accommodation' means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work. ... To 'accommodate' a disability is to make some change that will enable the disabled person to work." Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 542 (7th Cir. 1995); Fedro v. Reno, 21 F.3d 1391, 1396 (7th Cir. 1994) ("reasonable accommodation may even include a requirement that an employer alter existing policies or procedures that it would not change for nonhandicapped employees"). Despite the ADA's text, which includes reassignment within the scope of an employer's duty to make reasonable accommodations, the panel has now determined that an employer must merely consider the disabled employee for a vacancy under its normal competitive application policy. Such a requirement is not an accommodation at all; it is a term or condition of employment to which every employee is entitled on a non-discriminatory basis. See 42 USC § 12112(a). "[A]llowing the plaintiff to compete for jobs open to the public is no accommodation at all ... [The employer's] policy or practice that all reassignments are made through competitive hiring prevents the reassignment of employees with disabilities to vacant positions for which they are qualified and discriminates against 'qualified individuals with disabilities.'" Smith, 180 F.3d at 1165, quoting Ransom v. State of Ariz. Bd. of Regents, 983 F. Supp. 895, 902-03 (D.Ariz.1997). By requiring a disabled employee who seeks reasonable accommodation through reassignment to demonstrate that she was the "most qualified" candidate for a particular vacancy, the panel's ruling effectively transforms her claim for failure to accommodate into a claim for disparate treatment, contrary to the analytical distinction this Court has previously recognized between these two types of claims. See Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283-84 (7th Cir. 1996) (unlike disparate treatment claim, which requires employee to show employer "treated him differently and less favorably than other, non-disabled employees," ADA claim for failure to accommodate is "directly establish[ed]" by showing employer "should have reasonably accommodated [his] disability and did not"). Because the ADA also defines "reasonable accommodation" to include "appropriate adjustment or modifications of ... policies," 42 U.S.C. § 12111(9)(B), the EEOC reads the statute to require an employer to make exceptions to policies and procedures that would otherwise prevent it from accommodating a disabled employee. Reasonable Accom. Guidance, at 7624 n.83 ("[T]he ADA requires modification of workplace policies, such as transfer policies, as a form of reasonable accommodation."). "Therefore, an employer who does not normally transfer employees would still have to reassign an employee with a disability, ... [a]nd, if an employer has a policy prohibiting transfers, it would have to modify that policy in order to reassign an employee with a disability, unless it could show undue hardship." Id., at 7623; accord Dalton v. Subaru-Isuzu Auto., 141 F.3d 667, 679 (7th Cir. 1998) (employer's "no transfer" policy would be "subject to challenge ... for any unreasonable inflexibility in the face of a demand for reasonable adjustments to accommodate a disabled candidate for transfer"). Similarly, absent undue hardship, the EEOC construes the ADA to require an employer to adjust its usual policy of filling vacancies through a competitive application process to reassign a disabled employee who cannot be accommodated in her current job and will otherwise be out of work.<8> Reasonable Accom. Guidance, at 7625. Although the language and structure of the ADA do not support the panel's "most qualified" requirement, the EEOC recognizes other significant limitations on the reassignment obligation, arising from the statutory text.<9> First, the statutory language lists "reassignment," and not "assignment," as a reasonable accommodation, signifying that only current employees (who have a job from which to be reassigned) are eligible. See 29 C.F.R. Pt. 1630, App. § 1630.2(o); Senate Rpt. at 31 ("Reassignment as a reasonable accommodation is not available to applicants for employment."). Second, the EEOC interprets the plain language requiring "reassignment to a vacant position" to mean that "[t]he employer does not have to bump an employee from a job in order to create a vacancy; nor does it have to create a new position." Reasonable Accom. Guidance, at 7622; see House Labor Rpt. at 62; Senate Rpt. at 31 (same). Third, and more fundamentally, because the duty to make reasonable accommodations extends only to "an otherwise qualified ... employee" with a disability, 42 U.S.C. § 12112(b)(5)(A), a disabled employee must meet legitimate qualification standards and be able to perform the essential functions of a vacant position to be eligible for reassignment. See Reasonable Accom. Guidance, at 7621. Finally, the employer's duty to reassign a disabled employee, as with its obligation to provide any reasonable accommodation, is excused if the employer "can demonstrate that the [reassignment] would impose an undue hardship on the operation of [its] business." 42 U.S.C. § 12112(b)(5)(A); see Reasonable Accom. Guidance, at 7630-34. While the EEOC and the Ninth, Tenth, and D.C. Circuits base their uniform interpretation of the reassignment provision on the ADA's text, structure, history, and purpose, the panel in this case cited no statutory authority whatsoever to support its contrary construction. See slip op. at 6-9. Rather, the panel relied solely on dicta in prior decisions, and its own conclusion, based on hypothetical facts rather than those actually presented in the evidentiary record, that the EEOC's interpretation would lead to "odd and counterintuitive results." Id. at 5. This Court has stated generally that the ADA does not require an employer "to reassign a disabled employee to a position when such a transfer would violate a legitimate, nondiscriminatory policy of the employer," Dalton, 141 F.3d at 679, and has listed, in dicta, examples of "legitimate job prerequisites that an employer may establish consistently with nondiscrimination laws." Id., 141 F.3d at 679; Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir. 1998).<10> Yet while competitive application procedures are a common means of filling vacancies, this Court in prior decisions has never included among examples of "legitimate job prerequisites" a requirement that a disabled employee compete with others and be the "most qualified" for a particular job to obtain reassignment as an accommodation. The Court in Dalton, moreover, cautioned that an employer cannot evade its duty to provide an accommodation required by the ADA simply by adopting a facially nondiscriminatory policy that would effectively preclude a particular accommodation. 141 F.3d at 679. "Any such policy," the Court recognized, "would remain subject to challenge both for any disparate impact it might impose on disabled employees, and for any unreasonable inflexibility in the face of a demand for reasonable adjustments to accommodate a disabled candidate for transfer." Id. In effect, the panel's interpretation "judicially amend[s] the statutory phrase 'qualified individual with a disability' to read, instead, 'best qualified individual, notwithstanding the disability,'" adding a "judicial gloss unwarranted by the statutory language or its legislative history." Smith, 180 F.3d at 1168-69; see Reasonable Accom. Guidance, at 7621 (disabled employee "does not need to be the most qualified individual for the position in order to obtain it as a reassignment"). While the panel derides the EEOC's interpretation of the reassignment provision as "affirmative action with a vengeance," slip op. at 7, the Tenth Circuit has properly recognized that "judicial labels" - such as "affirmative action" - "cannot substitute for Congress' statutory mandate in the ADA," which by its terms defines "discrimination" to include "not making reasonable accommodations to the known limitations of an otherwise qualified individual with a disability," 42 USC §12112(b)(5)(A), and defines "reasonable accommodation" to include "reassignment to a vacant position," 42 USC §12111(9)(B). Smith, 180 F.3d at 1167. CONCLUSION Because the panel decision conflicts with the EEOC's administrative guidance and creates a conflict with the en banc decisions of the Ninth, Tenth, and D.C. Circuits, the EEOC urges this Court to grant rehearing en banc. Respectfully submitted, C. GREGORY STEWART ____________________________ General Counsel DORI K. BERNSTEIN Attorney PHILIP C. SKLOVER Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Assistant General Counsel CERTIFICATE OF SERVICE I, Dori K. Bernstein, hereby certify that I served two copies of the foregoing brief, and one copy of the foregoing brief on digital media, this 30th day of October 2000, by first-class mail, postage pre-paid, to the following counsel of record: Mr. Kirk M. Wall Habash, Reasoner & Frazier 471 E. Broad St., Suite 1600 Columbus, Ohio 43215 Ann Elizabeth Reesman McGuiness Norris & Williams, LLP. 1015 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 ______________________________ DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENTOPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202) 663-4734 ADDENDUM 1 EEOC v. Humison-Keeling, Inc., No. 99-3281 Slip opinion (7th Cir., Sept. 15, 2000) 1 Record references correspond to the numbered entries on the district court docket sheet, and are denoted "R__," followed by more specific document citation in parentheses. 2 During an extensive work capacity evaluation in December 1992, Hauser exhibited the following "major limiting factors": "decreased overall endurance in the upper right extremity for vocational/avocational activities"; "decreased tolerance in the upper right extremity for task performance in all planes and especially shoulder level and above"; and "decreased capabilities" with lifting and carrying. R37 (Pl's 12(m), Ex8 - Work Capacity Rpt., p11). Houser was "working at the Sedentary physical demand level ... which consists of lifting 12.5 lbs. infrequently and carrying 6.5 lbs," and was no longer able to work at the "Medium physical demand level - which consists of lifting and carrying up to 50 lbs.," as required by her former job as a stocker. Id. A report documenting Houser's unsuccessful effort to participate in a work hardening program in late 1992 similarly concluded that she was unable "to demonstrate the capacities to do much work in any range with her upper right extremity." Id. (Ex12, p2). 3 Houser interviewed for the following clerical vacancies: data entry clerk; switchboard operator; telemarketer; and credit manager assistant. R37 (Pl's 12(m), pp10-15, ¶¶56-91). HK managers described several clerical openings as "entry level" positions, id. (p10, ¶53; p13, ¶ 73; p16, ¶97), or "a job that we took people with very basic skills out of the plant and put them into this job." Id. (Ex3 - Meserve Dep. p121). HK's office and warehouse jobs were located in the same combined facility. R31 (Def's 12(m), p2, ¶3). Like Houser's former position as a stocker, all office jobs were performed on the day shift. Id. (p3, ¶11). HK's entry level office jobs entailed neither supervisory nor management functions, and some offered pay comparable to the hourly wage earned by warehouse workers. See EEOC App. Br. at 35-36 & n.14; Reply Br. at 9-10. Further, while "it was very typical" for warehouse employees "to work an hour or two overtime," see R38 (Def's Excerpts - Meserve Dep. p24), there was no evidence that office workers had similar opportunities to earn additional income with overtime work. See slip op. at 9. 4 See EEOC App. Br. at 39-40. 5 The panel suggested, in dicta, that the district court may have correctly concluded that HK's "office jobs were indeed better" than the warehouse position Houser could no longer perform, and thus were outside the scope of any reassignment obligation. Id. at 8. "It seems a fair generalization," the panel remarked, "that most desk jobs are 'better' ... than factory or other physically demanding jobs that pay no more, other things being equal." Id. at 8-9. Because the record contained "some evidence that the warehouse jobs provide much superior opportunities for overtime work, which ... may be a distinct plus for many workers," however, the panel found "enough doubt on this record about the superiority of the office jobs ... to make us prefer to rest decision on the alternative ground that the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it's the employer's consistent and honest policy to hire the best applicant for the particular job in question rather than the first qualified applicant." Id. at 9. 6 At issue in Barnett was whether an employer's policy of assigning jobs based on seniority "is a per se bar to reassignment as a reasonable accommodation and whether a disabled employee seeking reasonable accommodation should have priority in reassignment." Barnett, at *10. Based on EEOC guidance and the ADA's legislative history, the Ninth Circuit held "that a seniority system is not a per se bar to reassignment," but rather would be "a factor in the undue hardship analysis," which requires a "case-by-case face intensive analysis ... to determine whether any particular reassignment would constitute an undue hardship to the employer." Id., at *11. Absent undue hardship, the Court ruled, the ADA requires an employer to make an exception to its seniority policy to accommodate a disabled employee through reassignment. Id. 7 In the panel's view, "Aka is distinguishable" because it "does not address the situation in which a nondisabled person is the superior applicant for the job to which the disabled person seeks reassignment and the employer has a consistent policy of preferring the best candidate for a vacancy rather than merely hiring the first qualified person to apply, as is often done for routine low-skilled jobs." Slip op. at 6. The panel thus did not read Aka as "holding that the employer must pass over the superior applicant who ... might himself or herself be disabled or belong to some other protected class." Id. Yet the facts of Aka refute the panel's cramped reading of that decision. Plaintiff Etim Aka could no longer perform his job as a hospital orderly due to a heart ailment, and requested a transfer to a job that met his medical restrictions. Aka, 156 F.3d at 1286. The hospital required him to compete for posted vacancies under normal application procedures, which included a seniority preference, but permitted the hospital to "hire less senior applicants if they [were] more qualified." Id. at 1287. The hospital rejected Aka for several clerical jobs, and selected Jaime Valenzuela, a younger employee with less seniority, to fill a pharmacy technician position. Id. at 1286-87. The hospital asserted "that it hired Valenzuela because he was more qualified than Aka." Id. at 1294. Aka claimed both that the hospital rejected him because of age, in violation of the ADEA, and failed to accommodate him through reassignment, in violation of the ADA. Id. at 1287-88. While resolution of Aka's age discrimination claim, under the analytic framework for circumstantial disparate treatment cases, necessarily entailed a detailed comparison of the two candidates' qualifications, see id. at 1294-99, an entirely different analysis governed Aka's reasonable accommodation claim. Id. at 1300-06. Given the factual context of the hospital's normal competitive application process for filling vacancies, the D.C. Circuit's ruling that reassignment under the ADA "must mean more than allowing an employee to apply for a job on the same basis as anyone else," id. at 1304, signifies a rejection of the restrictive interpretation of reassignment adopted by the panel in this case. Certainly the Ninth and Tenth Circuits have so understood the Aka decision. See Barnett, at *10; Smith, 180 F.3d at 1164-65. 8 To the extent that reassigning a disabled employee to a vacancy outside the usual competitive bidding process causes "an unreasonable imposition on the employers and coworkers of disabled employees," Dalton, 141 F.3d at 679, the employer presumably would be able to establish undue hardship and would be relieved of the obligation to provide the transfer. See 42 U.S.C. §§ 12112(b)(5)(A), 12111(10). HK did not argue that making an exception to its policy of filling vacancies with the most qualified candidate to reassign Houser to a vacant entry level clerical job, for which she was among the top two or three qualified candidates, would have imposed an undue hardship. 9 Through these limitations, "Congress ... significantly cabined the obligation to offer reassignment to a qualified employee who is disabled so as to ensure that it is not unduly burdensome, or even particularly disruptive, of an employer's business." Smith, 180 F.3d at 1170; see also Aka, 156 F.3d at 1305 ("Recognized constraints on an employer's obligation to reassign a disabled employee further limit the disruption associated with reassignments."). 10 The panel found the Tenth Circuit's decision in Smith to be "inconsistent with decisions of this court that hold that the [ADA] is not a mandatory preference act." Slip op. at 6 (citing Dalton, Malabarba v. Chicago Tribune, 149 F.3d 690, 699-700 (7th Cir. 1998), and Matthews v. Commonwealth Edison, 128 F.3d 1194, 1196 (7th Cir. 1997)). None of these cases, however, resolved the interpretive question at issue in this case. In Dalton, this Court held, "the evidence was insufficient even for summary judgment purposes to show that there were vacant positions filled by temporary workers during the relevant time period to which [the plaintiffs] could have been reassigned," 141 F.3d at 680 obviating any need for the Court to decide whether, absent undue hardship, the ADA would require an employer to modify its usual procedures for filling vacancies to accommodate the plaintiffs through reassignment. See Barnett, at *19 n.8. Because the plaintiff in Malabarba "readily admit[ted]" that the job to which he sought reassignment was "a higher grade position" than his previous job, 149 F.3d at 700, this Court's holding that the proposed promotion was outside the scope of the employer's duty to make reasonable accommodation was entirely consistent with the EEOC's interpretation of the reassignment provision. See 29 C.F.R. pt. 1630, App. § 1630.2(o) ("an employer is not required to promote an individual with a disability as an accommodation"). The existence of a genuine factual dispute, acknowledged by the panel, as to whether some of HK's vacant clerical jobs were equivalent to Houser's former stocker position, see slip op. at 9, distinguishes this case from Malabarba. Finally, the issue in Matthews was whether the plaintiff, who was laid off in a large-scale RIF, was discharged "because of" his disability, in violation of the ADA. 128 F.3d at 1194. Matthews thus did not even require this Court to resolve a claim for reasonable accommodation, and the opinion does not mention, let alone interpret, the statutory reassignment provision.