No. 11-1129 _____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _____________________________________________ TIMOTHY A. JACKSON, Plaintiff-Appellant, v. FUJIFILM MANUFACTURING USA, INCORPORATED, Defendant-Appellee. _____________________________________________ On Appeal from the United States District Court for the District of South Carolina, Hon. J. Michelle Childs _____________________________________________ BRIEF OF AMICUS CURIAE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION SUPPORTING THE PLAINTIFF-APPELLANT _____________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M St. NE, Rm. 5NW10P Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 VINCENT BLACKWOOD James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT EMPLOYERS MAY BE REQUIRED UNDER THE ADA TO REASONABLY ACCOMMODATE INDIVIDUALS WITH DISABILITES THROUGH REASSIGNMENT TO VACANT POSITIONS FOR WHICH THE EMPLOYEES ARE QUALIFIED, WITHOUT REGARD TO WHETHER THERE ARE MORE QUALIFIED CANDIDATES FOR THE VACANT POSITION. . . . . . . . . . . . . . . . . . 5 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ADDENDUM Americans with Disabilities Act of 1990 (excerpts). . . . . Addendum - 2 Regulations (excerpts). . . . . . . . . . . . . . . . . . Addendum - 9 EEOC Enforcement Guidance (excerpt). . . . . . . . . . . . Addendum - 17 Legislative History (excerpts). . . . . . . . . . . . . . . Addendum - 25 Federal Register (excerpt). . . . . . . . . . . . . . . . . Addendum - 32 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Page(s) Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998). . . . . . . . . . . . . . . 5, 11, 12, 15 Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . .8 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995). . . . . . . . . . . . . . . . . . . . .5, 15 EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 15 Hedrick v. W. Reserve Care Sys., 355 F.3d 444 (6th Cir. 2004). . . . . . . . . . . . . . . . . . . . 5, 15 Huber v. Wal-Mart, 486 F.3d 480 (8th Cir. 2007). . . . . . . . . . . . . . . . . . . . 5, 15 Jackson v. FUJIFILM Mfg. USA, Inc., No. 09-1328, Opinion and Order (D.S.C. Feb. 7, 2011). . . . . 4, 5, 9, 13 Jackson v. FUJIFILM Mfg. USA, Inc., No. 09-1328, Report and Recommendation of Magistrate Judge (D.S.C. June 18, 2010). . . . . . . . . . . . 2-4, 9, 16 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007). . . . . . . . . . . . . . . . . . . . . . . . 10 Robinson v. Shell Oil Co., 519 U.S. 337 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . 12 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). . . . . . . . . . . . . . . . . . 11-13 Terrell v. USAir, 132 F.3d 621 (11th Cir. 1998). . . . . . . . . . . . . . . . . . 5, 15 U.S. v. Mead Corp., 533 U.S. 218 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . 8 U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). . . . . . . . . . . . . . . . . . . . . . . . 13-15 Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379 (2d Cir. 1996). . . . . . . . . . . . . . . . . . . . . 5, 15 Statutes Title I of the Americans with Disabilities Act of 1990 42 U.S.C. § 12101(a)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 42 U.S.C. § 12111(9)(B). . . . . . . . . . . . . . . . . . . . . . . . . .6, 14 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . . . 6 42 U.S.C. § 12116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Rules and Regulations FRAP 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 C.F.R. part 1630. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 29 C.F.R. § 1630.2(o)(2)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . 8 29 C.F.R. Pt. 1630, App. § 1630.2(o). . . . . . . . . . . . . . . . . . . . . 9 56 Fed. Reg. 35,726 (July 26, 1991). . . . . . . . . . . . . . . . . . 7, 10, 11 Administrative Guidance EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, No. 915.002 (Oct. 17, 2002). . . . . . . . . . . . . . . . . . . . . 1, 9, 10 Legislative History H.R. Rep. No. 101-485(II) (1990). . . . . . . . . . . . . . . . . . . . . . .6, 8 S. Rep. No. 101-116 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Other Authority Webster's Third New Int'l Dictionary. . . . . . . . . . . . . . . . . . . . . 11 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission") is the agency charged by Congress with the interpretation and enforcement of federal laws prohibiting discrimination in employment, including Title I of the Americans with Disabilities Act of 1991, as codified at 42 U.S.C. §§ 12101 et seq. ("ADA"). As a federal agency, the Commission is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a). The complaint alleges that the defendant failed to reasonably accommodate the plaintiff's disability by transferring him into a vacant position for which he was qualified and which would have accommodated his medical condition, and instead filled the position with an allegedly more qualified candidate. In granting summary judgment for the defendant, the district court held that the ADA does not require an employer to give preference to a disabled employee over a more qualified candidate for a vacant position as a form of reasonable accommodation. The district court's resolution of this issue is directly contrary to the Commission's interpretation of the ADA. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, at 19-21 (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html ("Guidance") (attached at Addendum p. 17). If affirmed by this Court, the district court's decision would improperly limit the reasonable accommodation rights of all employees with disabilities in this circuit. Accordingly, we offer our views to this Court. STATEMENT OF THE ISSUE PRESENTED<1> Whether an employer may be required under the ADA to reasonably accommodate an employee with a disability by reassigning the employee to a vacant positions for which the employee is qualified, without regard to whether there are more qualified candidates for the vacant position. STATEMENT OF THE CASE Statement of Facts<2> Timothy Jackson began working for FUJIFILM Manufacturing USA in 1995 as a Manufacturing Technician, and was promoted to Lead Technician in 1999. Jackson v. FUJIFILM Mfg. USA, Inc., No. 09-1328, Report and Recommendation of Magistrate Judge, 1 (D.S.C. June 18, 2010) ("R&R"). In January 2006, FUJIFILM announced that it was closing certain plants due to decreased demand. Id. All individuals located in the impacted plants, including Jackson, were eligible to receive a severance package or to remain with the company and seek another position through the company's Workforce Reassignment Policy. Id. at 1-2. Jackson opted to remain with the company and agreed to be reassigned to an open position. Id. at 2. In May 2006, prior to his reassignment, Jackson informed FUJIFILM that he had a "permanent physical impairment to [his] left hip, leg, and knee" which "causes [his] walking, standing, lifting, bending, sitting, climbing, stooping, and twisting to be limited and restricted." Id. On August 21, 2006, FUJIFILM reassigned Jackson to the position of Coating Technician, pursuant to the Workforce Reassignment Policy. Id. The Coating Technician position was more physically demanding than Jackson's Lead Technician position. Id. On August 23, 2006, Jackson applied for a vacant CCR/Team Leader position. Id. FUJIFILM interviewed five candidates for the position, ranked them in order of qualifications, and selected a candidate other than Jackson based on that candidate's advanced leadership skills and experience. Id. at 2-3. The selectee was the top ranked candidate, while Jackson was ranked third. Id. at 13. On December 9, 2006, Jackson hurt his back while lifting a container. Id. at 3. As a result, Jackson remained out of work through April 16, 2007. Id. On March 5, 2007, while Jackson was still out on medical leave, FUJIFILM posted a second CCR/Team Leader position. Id. The company relied on its candidate ranking from the August 2006 application process, and again chose an individual considered more qualified than Jackson and did not place Jackson in the vacant position. Id. at 3, 15. Jackson's employment at FUJIFILM was ultimately terminated while he was out on extended medical leave. Id. at 3. Jackson brought suit, alleging inter alia that FUJIFILM failed to reasonably accommodate his disability by reassigning him to one of the vacant CCR/Team Leader positions. Id. at 6. The magistrate judge issued a Report and Recommendation, concluding that the district court should grant the defendant's motion for summary judgment. Id. at 16. District Court Decision The district court adopted the magistrate judge's Report and Recommendation and granted the company's motion for summary judgment for the reasons advanced therein without reiterating the facts and reasoning relied upon by the magistrate judge. Jackson v. FUJIFILM Mfg. USA, Inc., No. 09-1328, Opinion and Order, 1-4 (D.S.C. Feb. 7, 2011) ("Opinion"). The court understood Jackson's objections to the magistrate judge's recommendation to raise the question of "whether the ADA requires an employer, as a reasonable accommodation, to give a current disabled employee preference in filling a vacant position when the employee is able to perform the job duties, but is not the most qualified candidate." Id. Acknowledging, as did the magistrate judge, that this Court has not squarely addressed the issue, the district court stated that "most of the circuits which have examined the issue have found that the ADA is not an affirmative action statute and does not require such action." Id. (citing Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007); Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 459 (6th Cir. 2004); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1311 (D.C. Cir. 1998); Terrell v. USAir, 132 F.3d 621, 627 (11th Cir. 1998); Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 384-85 (2d Cir. 1996); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995). The court concluded that while Jackson requested reasonable accommodation in 2006, he was not entitled to the accommodation of his choice and FUJIFILM had attempted to provide him with a reasonable accommodation. Id. at 4. ARGUMENT EMPLOYERS MAY BE REQUIRED UNDER THE ADA TO REASONABLY ACCOMMODATE INDIVIDUALS WITH DISABILITES THROUGH REASSIGNMENT TO VACANT POSITIONS FOR WHICH THE EMPLOYEES ARE QUALIFIED, WITHOUT REGARD TO WHETHER THERE ARE MORE QUALIFIED CANDIDATES FOR THE VACANT POSITION. Jackson alleges that FUJIFILM violated the ADA by failing to transfer him to two vacant positions for which he was qualified as an accommodation for his disability. In granting the company's motion for summary judgment, the district court ruled that the ADA does not require an employer, as a reasonable accommodation, to give a disabled employee preference for a vacant position for which he is qualified, but is not the most qualified candidate. Opinion at 3-4. This ruling is based on a fundamental misunderstanding of the nature of an employer's duty to reasonably accommodate disabled individuals and is contrary to the Commission's regulations and guidance on reasonable accommodations under the ADA, as well as Supreme Court precedent on the issue. Title I of the ADA defines prohibited discrimination to include "not making reasonable accommodations . . . unless . . . the accommodation would impose an undue hardship on the operation of the [employer's] business," 42 U.S.C. § 12112(b)(5)(A) (attached at Addendum p. 7), and defines "reasonable accommodation" to include both "reassignment to a vacant position" and "appropriate adjustment or modifications of . . . policies." 42 U.S.C. § 12111(9)(B) (attached at Addendum p. 6). The legislative committee reports explain that "[i]f 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. 101-485(II), at 63 (1990) ("House Rpt.") (attached at Addendum p. 27); S. Rep. No. 101-116, at 31-32 (1989) (attached at Addendum pp. 30-31). Congress thus defined "reasonable accommodation" to include "reassignment to a vacant position" as a means to retain employees with disabilities 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)(7) (attached at Addendum p. 4). Congress required the Commission to issue regulations to carry out Title I within one year of the ADA's enactment. 42 U.S.C. § 12116 (attached at Addendum p. 8). Pursuant to this express delegation of rulemaking authority, and following extensive public notice and comment, the Commission promulgated regulations and interpretive guidance, now codified at 29 C.F.R. part 1630. The Commission issued interpretive guidance concurrently with the final rule "in order to ensure that qualified individuals with disabilities understand their rights under [the regulations] and to facilitate and encourage compliance by covered entities." 56 Fed. Reg. 35,726, 35,726 (July 26, 1991) (attached at Addendum p. 34). In the preamble to the final rule, the Commission explained that "[m]ore detailed guidance on specific issues will be forthcoming in the Commission's Compliance Manual," and specified that, "[a]mong the issues to be addressed in depth are . . . reasonable accommodation and undue hardship, including the scope of reassignment." Id. In developing the regulations and accompanying guidance, the Commission considered comments submitted by "disability rights organizations, employers, unions, state agencies concerned with employment or workers compensation practices, and interested individuals," and announced that it "will continue to consider [these comments] as it develops further ADA guidance. Id. Congress intended the Commission's regulations implementing Title I of the ADA to "have the force and effect of law." House Rpt. at 82 (attached at Addendum p. 28). The regulations pertaining to the provisions of Title I are thus entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984). See U.S. v. Mead Corp., 533 U.S. 218, 226-27 (2001) (holding that Chevron deference is warranted "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority"). The Commission's regulation on reassignment conforms to the statutory text, and its interpretation of that regulation is entirely consistent with the rule itself. The regulation incorporates the statutory definition of "reasonable accommodation," including "reassignment to a vacant position." 29 C.F.R. § 1630.2(o)(2)(ii) (attached at Addendum p. 12). The interpretive guidance issued as an appendix to, and concurrently with, the regulation (as distinct from the Commission's 2002 Enforcement Guidance) explains that reassignment "should be considered only when accommodation within the individual's current position would pose an undue hardship," and should be "to an equivalent position, in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time." 29 C.F.R. Pt. 1630, App. § 1630.2(o) (attached at Addendum pp. 15-16). According to this guidance, reassignment "to a lower graded position" is permitted only "if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without accommodation." Id. Of particular relevance here, the Commission's 2002 Enforcement Guidance further addresses whether the duty to provide reassignment as a reasonable accommodation is satisfied if an employer merely considers an employee's application for a vacancy and selects the best qualified candidate to fill the job. See Guidance (attached at Addendum pp. 18-24). Specifically, the Guidance states that so long as an employee with a disability is qualified for the opening, she "does not need to be the best qualified individual for the position in order to obtain it as a reassignment." Id. at Addendum p. 20. The Guidance further explains that an employer may be required to modify its normal policies governing job transfers to provide reassignment as a reasonable accommodation. Id. at Addendum p. 22. The Guidance also explains that the ADA requires the employer to do more than merely permit an employee who seeks reassignment as an accommodation to her disability to compete for an equivalent vacant position with other qualified candidates: Does reassignment mean that the employee is permitted to compete for a vacant position? No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended. Id. at Addendum p. 23 (footnote omitted). Under well established principles of administrative law, the Commission's Guidance "falls well within the principle that an agency's interpretation of its own regulations is 'controlling' unless plainly erroneous or inconsistent with the regulations being interpreted." Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007) (internal quotations and citations omitted). "Where, as here, an agency's course of action indicates that the interpretation of its own regulation reflects its considered views," the Supreme Court has "accepted that interpretation as the agency's own, even if the agency set those views forth in a legal brief" or, as in Coke, "in an 'Advisory Memorandum' issued only to internal Department [of Labor] personnel and which the Department appears to have written in response to . . . litigation." Id. Because the Commission's Guidance is fully consistent with its regulation, and was issued publicly (rather than only internally), after consideration of comments submitted during legislative rulemaking, see 56 Fed. Reg. 35,726, 35,726 (July 26, 1991) (attached at Addendum pp. 33-34), it represents a "controlling" interpretation of the law. Moreover, the Commission's interpretation comports with the language, structure, and history of the statute. As the D.C. Circuit, sitting en banc, recognized, the "plain meaning" of the verb "to assign . . . means 'to appoint (one) to a post or duty.'" Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1302 (D.C. Cir. 1998) (quoting Webster's Third New Int'l 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 Aka Court 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; see also id. at 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 v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), also an en banc decision, found the D.C. Circuit's textual analysis persuasive, and quoted it in full. 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.'" Smith, 180 F.3d at 1164. The Commission's construction of the reassignment provision also finds support in the statutory structure. See Robinson v. Shell Oil Co., 519 U.S. 337, 345 (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," including reassignment in the duty to accommodate would be "redundant" if it required only nondiscriminatory consideration in competition with other employees. Smith, 180 F.3d at 1164-65 (citing in part 42 U.S.C. § 12112(a)); see also Aka, 156 F.3d at 1304 (same). Thus, the duty of reassignment under the ADA "must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position." Smith, 180 F.3d at 1165; see also Aka, 156 F.3d at 1304 (recognizing that the statute's use of "the word 'reassign' must mean more than allowing an employee to apply for a job on the same basis as everyone else"). The opportunity to apply for a job is not an accommodation at all; it is a term or condition of employment to which every disabled employee is entitled on a nondiscriminatory basis. 42 U.S.C. § 12112(a). As the Tenth Circuit recognized, "[a]llowing the plaintiff to compete for jobs open to the public is no accommodation at all . . . [and an 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 (citation omitted). By requiring a disabled employee who seeks reasonable accommodation through reassignment to demonstrate that he was the "most qualified" candidate for a particular vacancy, the district court's ruling effectively transforms his claim for failure to accommodate into a claim for disparate treatment. In effect, the district court'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. While the Commission and the en banc Tenth and D.C. Circuits base their interpretation of the reassignment provision on the ADA's text, structure, history, and purpose, the district court cited no statutory authority whatsoever to support its contrary construction. Rather, the district court relied on several decisions from other circuits, without any mention of contrary authority, for the proposition that the ADA does not require extending preferences to disabled individuals. See Opinion at 3-4. This rationale and construction of the ADA, however, was considered and squarely rejected by the Supreme Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). The employer in Barnett argued that the ADA "seeks only 'equal' treatment for those with disabilities" and "does not . . . require an employer to grant preferential treatment," and therefore "it does not require the employer to grant a request that, in violating a disability-neutral rule, would provide a preference." 535 U.S. at 397. According to the Court, this argument "fails to recognize what the Act specifies, namely, that preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal." Id. Specifically, the Court noted, "The ADA requires preferences in the form of 'reasonable accommodations' that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy. By definition any special 'accommodation' requires the employer to treat an employee with a disability differently, i.e., preferentially. And the fact that the difference in treatment violates an employer's disability-neutral rule cannot by itself place the accommodation beyond the Act's potential reach." Id. (emphasis in original). The Barnett Court observed that "[m]any employers will have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability." Id. at 398 (citing examples noted in 42 U.S.C. § 12111(9)(B)). "Yet," the Court observed, "Congress, while providing such examples, said nothing suggesting that the presence of such neutral rules would create an automatic exception." Id. "[T]he nature of the 'reasonable accommodation' requirement, the statutory examples, and the Act's silence about the exempting effect of neutral rules together" convinced the Court "that the Act does not create any such automatic exemption." <4> Id. Barnett is also significant in that it implicitly overruled this Court's earlier decision in EEOC v. Sara Lee Corp., 237 F.3d 349, 353-56 (4th Cir. 2000), to the extent that Sara Lee stands for the proposition that the ADA does not provide preferences for disabled workers. In Sara Lee, this court addressed the question of whether the employer satisfied its obligation to reasonably accommodate an employee's disability when it offered her the options for reassignment provided under the company's own seniority policy, rather than providing her with an exception to that policy. 237 F.3d at 355. In reaching this conclusion, this Court agreed with the other courts of appeals that had held "that the ADA's reasonable accommodation standard does not require an employer to abandon a legitimate and non-discriminatory company policy," id. at 353-54 (citing cases), adding that "an employer must be able to treat a disabled employee as it would any other worker when the company operates a legitimate, nondiscriminatory policy," id. at 355. In this case, the magistrate judge suggested that Sara Lee, while not directly on point with the instant matter, indicated that this Court was inclined to rule that disabled persons were not to be accorded preferences in reassignment to vacant positions as a form of reasonable accommodation. R&R at 12. However, the magistrate judge did not take into account the effect of Barnett on this Court's reasoning in Sara Lee. As described above, Barnett explicitly rejected this interpretation of the ADA, and, accordingly, Sara Lee does not support the district court's decision. CONCLUSION For the foregoing reasons, the Commission respectfully requests that this Court reverse the district court's grant of summary judgment and remand the case to the district court for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT BLACKWOOD Assistant General Counsel s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(B). This brief contains 3,812 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF SERVICE I hereby certify that on March 25, 2011, the foregoing brief was electronically served on the counsel listed below via the Court's ECF Notice of Docket Activity system at their electronic addresses of record: Robert Hayne Hodges, III, Esq. Richard James Morgan, Esq. hhodges@mcnair.net rmorgan@mcnair.net I further certify that on March 25, 2011, two hard copies of the foregoing brief were sent by First Class Mail, postage prepaid, to the following pro se party who is not a registered CM/ECF user: Timothy A. Jackson 302 Shadowood Lane Greenwood, SC 29649 s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov ********************************************************************************** <> <1> The Commission expresses no opinion on any other issue in this appeal. <2> This Statement is based on the factual summary in the Magistrate Judge's Report and Recommendation. <3> We note that neither the magistrate judge nor the district court identified whether or not the CCR/Team Leader position was substantially equivalent to Jackson's Lead Technician position, and neither referenced the Commission's Enforcement Guidance. See generally Opinion at 3-4, R&R at 11-16. While the company referred to the reassignment Jackson was seeking as a "promotion," it does not explain how reassigning Jackson from his Lead Technician position to the CCR/Team Leader position would amount to a promotion. See District Court Docket No. 75 attachment 1, Memorandum in Support of Defendant's Motion for Summary Judgment, pp. 12, 16, 18 (D.S.C. Feb. 3, 2010). The Commission takes no position in this appeal on the proper resolution of this factual question. <4> While the district court did not cite or otherwise discuss Barnett, the decisions the court did cite included Terrell v. USAir, 132 F.3d 621 (11th Cir. 1998), Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379 (2d Cir. 1996), and Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995), which were all decided prior to Barnett; Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 459 (6th Cir. 2004), was decided after Barnett but makes no mention of that decision and relies on pre- Barnett circuit authority; and citation to the dissent, not the en banc majority opinion, in Aka, see Opinion at 3 (citing Aka, 156 F.3d at 1311, without mention that this citation is to the dissent). The district court also cited Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007), which is a post-Barnett decision implicitly rejecting the Commission's position, but Huber did not address Barnett's recognition that preferences are sometimes necessary to achieve the ADA's goals. See 486 F.3d at 483-84. It is noteworthy that the Supreme Court granted certiorari in Huber on the same legal question at issue in the instant appeal, but the parties voluntarily dismissed the case prior to briefing. See docket in Huber v. Wal-Mart Stores, Inc., No. 07-480 (S. Ct.), available at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/07-480.htm.