No. 17-10539

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

METHODIST HOSPITALS OF DALLAS,

d/b/a METHODIST HEALTH SYSTEM,

Defendant-Appellee.

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On Appeal from the United States District Court

For the Northern District of Texas

The Honorable A. Joe Fish, District Judge

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INTRODUCTION

In EEOC’s opening brief, the Commission argued that, in appropriate circumstances, employers may be required to reasonably accommodate disabled employees by reassigning them to vacant positions for which they are qualified when their impairments prevent them from doing their current jobs even with other accommodation. The brief noted that the ADA defines “reasonable accommodation” to include “reassignment to a vacant position” (42 U.S.C.

§ 12111(9)); that “reassign” means “appoint,” not “permit to compete”; and that, as a listed accommodation, a request for reassignment is presumptively “reasonable” in the “run of cases.” See U.S. Airways v. Barnett, 535 U.S. 391, 402-03 (2002) (“Barnett”). The brief further argued that, like the plain text, the legislative history of the reassignment provision and the overall structure and purpose of the ADA all support our reading of the statute, which has been endorsed by the Seventh Circuit as well as the en banc Tenth and District of Columbia Circuits. Thus, EEOC argued, MHS’s competitive transfer policy, which never provides for reassignment, violates the ADA to the extent it prevents employees with disabilities from obtaining otherwise appropriate reasonable accommodations. The Commission recognized, of course, that Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995), and other pre-Barnett caselaw are to the contrary, but argued that those cases are fatally inconsistent with Barnett. EEOC-Brief:21-35. Finally, EEOC argued that summary judgment as to Adrianna Cook should be reversed because ample evidence indicates that Cook was entitled to reassignment as a reasonable accommodation. Id. at 50-58.

Rather than respond directly, MHS mainly reiterates its earlier arguments and mischaracterizes EEOC’s affirmative arguments. In particular, MHS accuses EEOC of seeking “mandatory reassignment” and “mandatory preferences.” MHS-Brief:4, 11, 16, 19, 21-26, 29-31, 34-35, 39. “Mandatory” is MHS’s word, not EEOC’s. The Commission’s position is that reassignment may be required but only in appropriate circumstances; MHS’s categorical refusal ever to reassign disabled employees is unlawful. Because MHS never grapples with these arguments and proffers no coherent basis to affirm, including as to Cook, the judgment should be reversed.

ARGUMENT

I. The ADA may require “preferences,” including reassignment in violation of a disability-neutral rule, in appropriate circumstances.

The Commission argued that MHS’s competitive transfer policy violates the ADA when applied to employees with disabilities needing reassignment as a reasonable accommodation. The language, legislative history, structure, and purpose of the statute, as well as relevant caselaw, all support this position. The Commission also argued that the Supreme Court in Barnett effectively overruled Fifth Circuit precedent such as Daugherty to the extent it holds that the ADA never requires that employees with disabilities ever receive “preferential” treatment. EEOC-Brief:21-35.

MHS’s opposition brief largely ignores these arguments. Instead, MHS devotes the first portion of its brief to “preferences.” See MHS-Brief:13-29. MHS’s position appears to be that “preferences” in the form of reassignment in violation of a disability-neutral rule, like MHS’s best-qualified-selection policy, are never required. As support, MHS relies on four sources: legislative history (though not about reassignment); Daugherty and its progeny; Barnett’s suggestion that the ADA aims only to level the playing field for disabled employees; and two post-Barnett cases. This argument lacks merit.[1]

First, MHS quotes legislative history of the definition of “qualified individual with a disability,” highlighting one clause involving “qualified workers” and others involving “applicants.” The passage explains, the legislation “‘does not undermine an employer’s ability to choose and maintain qualified workers’” and “‘the employer has no obligation ... to prefer applicants with disabilities over other applicants on the basis of disability.’” In MHS’s view, this passage, though not addressing reassignment, confirms that the ADA “was not intended to create a preference.” MHS-Brief:13-15.

To the contrary, by distinguishing between “workers” and “applicants,” this passage accords with the legislative history of the reassignment provision quoted in EEOC’s brief. Consistent with the plain meaning of the word “reassignment,” Congress specified that this accommodation was “not available to applicants” but only to current employees who were qualified for the vacant position they sought — i.e., “qualified workers.” EEOC-Brief:25 (citing legislative history). Congress explained that the provision’s purpose was to enable employees, who would otherwise lose their jobs due to disability, to remain productive workers in the workforce as long as there was a vacancy for which they were qualified. See id. Thus, in adding the reassignment provision, Congress intended to treat disabled workers preferentially, providing something that other employees and applicants do not receive — an opportunity to remain employed when they would otherwise face termination because of a disability. Cf. Barnett, 535 U.S. at 397-98 (recognizing that “preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal”).

Second, MHS cites Daugherty, 56 F.3d at 700, stating that it reflects this Circuit’s position that the ADA does not require preferences. According to Daugherty, the ADA prohibits only “employment discrimination against qualified individuals with disabilities.” It does not require “affirmative action” in favor of disabled individuals, in the sense of requiring that they receive priority in hiring or reassignment. MHS-Brief:15.

EEOC acknowledged this oft-quoted passage from Daugherty and that Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997), extended this no-preference ruling to reassignment. EEOC-Brief:30-31; but see Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996) (despite no-transfer-while-on-a-PIP policy, plaintiff might be able to show that reassignment was reasonable in the run of cases). The Commission argued, however, that this Court should revisit this precedent because its continued viability was “implicitly or explicitly” overruled by Barnett. [2]

Specifically, Daugherty and its progeny assume that the ADA is a “nondiscrimination” statute, not a mandatory preference act, and does not require employers to reassign or otherwise accommodate employees in violation of an employer’s disability-neutral policy. By contrast, Barnett held the ADA does require “preferences” — that is the essence of reasonable accommodation — and employers may therefore be required to make exceptions to disability-neutral policies in order to provide necessary accommodations. Barnett also assumed that a request for reassignment might well be “reasonable,” “ordinarily” or “in the run of cases,” even if it violated a disability-neutral policy (other than a seniority system, not at issue here). EEOC-Brief:32-34, 37-38. Daugherty cannot be reconciled with Barnett. See, e.g., In re Frazin, 732 F.3d 313, 319 (5th Cir. 2013) (panel may overturn precedent where “unequivocally sub silentio overruled” by an intervening Supreme Court decision).

MHS’s perfunctory response to this Daugherty argument makes three points, all unavailing. Initially, MHS notes that Barnett did not explicitly overrule Daugherty. MHS-Brief:16. While true, the language and reasoning in Barnett flatly contradict the language and rulings in Daugherty and Foreman. MHS then notes that Barnett merely holds that “‘preferences will sometimes prove necessary.” Id. That is also true, but adds little to MHS’s argument since Daugherty does not recognize any preferences. Daugherty is therefore incorrect that preferences are never required, as MHS concedes.[3] Finally, MHS asserts, “Barnett did not hold in favor of mandatory reassignment in the face of an established disability-neutral, best-candidate policy” but instead “held in favor of” the employer on the ground that reassignment in violation of a seniority provision was unreasonable. Id. Again, while true, that is irrelevant since neither Barnett nor Daugherty involved an “established disability-neutral, best-candidate policy.”

Third, while acknowledging that Barnett recognizes “preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal” (535 U.S. at 397), MHS asserts, without citing EEOC’s brief, that the Commission “misconstrue[s] this sentence as a mandatory preference holding” by “ignor[ing] the word ‘sometimes’” and the next sentence, which “emphasizes that preferences for those with disabilities should be in place only if necessary for the disabled employee ‘to obtain the same workplace opportunities that those without disabilities automatically enjoy.’” MHS-Brief:19, 28 & n.9. In fact, MHS continues, somewhat confusingly, “an accommodation may require a preference if reasonable in the run of cases,” but the “Supreme Court did not state that an employer must give preferences.” MHS-Brief:19.[4]

That misunderstands EEOC’s brief. The Commission is not arguing for “mandatory preferences,” whatever that means. Indeed, EEOC agrees that no accommodation is always required (MHS-Brief:19); an accommodation may work in one case and not another.

And to the extent MHS is arguing that the ADA only “sometimes” requires preferences in the form of exceptions to disability-neutral rules, EEOC also agrees. A wheelchair user may be seeking only an adjustment to his workstation — raising the height of his desk. Such an accommodation normally would not violate a disability-neutral rule. On the other hand, if the individual needs an entirely different type of workstation, that might affect an employer’s “neutral furniture budget rules” (Barnett, 535 U.S. at 398). Yet, even though the accommodation would require treating the individual “preferentially,” the accommodation would not, on that ground alone, be unreasonable.

However, MHS misreads Barnett to the extent it argues that Barnett requires only “preferences” that would allow those with disabilities “‘to obtain the same workplace opportunities that those without disabilities automatically enjoy.’” According to MHS, “automatic mandatory reassignment” — that is, reassignment in violation of a disability-neutral rule — is never required because it does more than merely “level the playing field,” the ADA’s intended goal. MHS-Brief:13, 16, 19 (citing 535 U.S. at 397).

That argument should be rejected. As EEOC explained, even if disabled employees were entitled only to a level playing field, that is what they get under the “reassignment” provision since it enables them to continue working just as non-disabled employees can. EEOC-Brief:36-37.

Moreover, MHS’s argument — that employers need only offer accommodations including reassignment that allow disabled employees to compete equally in the workplace — is the same one the employer in Barnett was making. See 535 U.S. at 397-99. The dissenting opinion there makes clear that the majority did not adopt that interpretation of the ADA. See Id. at 413-20 (Scalia, J., dissenting). Justice Scalia would have held that the ADA requires employers to eliminate barriers — provide preferential treatment — only if the disability prevents the employee from overcoming them. Id. at 413 (Scalia, J., dissenting). Under his approach, an employer could not fire an employee no longer able to do his job because of a disability without first attempting to place him in a vacant position where the disability would not affect performance. But the employer would not be barred from giving the job to a more qualified non-disabled candidate if best-qualified selection were the workplace rule. Id. at 415-16. Justice Scalia acknowledged, however, that his position did not prevail. Id. at 417; accord id. at 398 (noting rejection of Justice Scalia’s position). Thus, Justice Scalia’s dissent, read in conjunction with the majority decision, confirms that employers may not satisfy their ADA reasonable accommodation duty merely by providing accommodations that level the playing field or giving employees with disabilities another position only if they are deemed the best-qualified candidate.

Finally, MHS argues that two appellate decisions, Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir. 2007), and EEOC v. St. Joseph’s Hospital, 842 F.3d 1333 (11th Cir. 2016), provide “compelling” support for its position that preferences in the form of “mandatory reassignment over more qualified candidates” are not required. MHS Brief:26-28. MHS implies this Court should take the same position.

EEOC’s opening brief points out that three circuits, after carefully analyzing the language, legislative history, and purpose of the ADA, interpreted the reassignment provision consistently with the Commission. EEOC-Brief:20, 44-45 (citing EEOC v. United Airlines, 693 F.3d 760 (7th Cir. 2012), Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999) (en banc); Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en banc)). One decision, United Airlines, also analyzed Barnett. MHS does not distinguish these cases or otherwise respond to EEOC’s arguments as to their persuasiveness.

EEOC’s brief also explained why this Court should find MHS’s cases unpersuasive. EEOC-Brief:46-48. The brief noted that Huber was based entirely on EEOC v. Humiston-Keeling, 227 F.3d 1024, 1028-29 (7th Cir. 2000), which held that the ADA is not a “mandatory preference statute” and that an employer need not reassign a disabled employee to a job for which there is a better qualified applicant if the employer has a best-qualified-selection policy. See Huber, 486 F.3d at 483 (“agree[ing] with Humiston-Keeling” rather than Smith). When the Seventh Circuit overruled Humiston-Keeling, however, holding that the decision “did not survive Barnett,” that left Huber without legal support for its conclusion. MHS ignores, rather than rebuts, this argument.

As for St. Joseph’s, it is poorly reasoned. See EEOC-Brief:46-48. While purporting to base its opinion on Barnett, the court actually skipped over the entire first part of the Barnett decision (535 U.S. at 397-99) — discussing preferences and exceptions to disability-neutral policies — and held, based largely on pre-Barnett authority, that the ADA does not require preferences. Then, noting Barnett’s holding that reassignment in violation of a seniority system is ordinarily unreasonable, the Court opined that reassignment in violation of a best-qualified-selection policy is also unreasonable since hiring the best-qualified applicant is common and promotes safe and efficient performance. 842 F.3d at 1345-47.

As EEOC’s brief explained (EEOC-Brief:39-40), United Airlines also considered Barnett’s discussion of seniority systems. That court concluded, consistent with the entirety of the Barnett decision, that reassignment is presumptively reasonable in the run of cases, and while Barnett recognized a “narrow, fact-specific exception” for seniority systems based on their special place in American labor law, that exception would not extend to best-qualified-selection policies both because seniority systems differ materially from best-qualified-selection policies and because such policies are so common that the exception would “swallow the rule.” 693 F.3d at 764. MHS summarizes, without analyzing, St. Joseph’s and never mentions United Airlines.

Because Huber and St. Joseph’s are flawed, the Commission urges this Court instead to follow Aka, Smith, United Airlines, and Barnett as well as the language, legislative history and purpose of the reassignment provision. Consistent with that authority, this Court should hold that in appropriate circumstances, the ADA may require preferences in the form of reassignment even where the accommodation might conflict with a best-qualified-selection policy.

Such a holding would have a limited impact on MHS’s best-qualified-selection policy. MHS may continue to apply its policy except where an exception is needed to accommodate a disabled worker. Moreover, the duty to reassign is not unlimited; there are notable limitations. It does not apply to applicants; it is not required where the employee can be reasonably accommodated in his or her current position; the employer need not create a new position, bump another employee, violate the terms of a seniority system, offer the employee a promotion, or offer a job for which the employee is not fully qualified; and the employer need not reassign if it would result in undue hardship. EEOC-Brief:29; accord MHS-Brief:21. But where all of these criteria are met, no undue hardship is shown, and nothing else would work, an employer like MHS must offer to reassign a disabled employee as a reasonable accommodation. “Anything more, such as requiring the reassigned employee to be the best qualified” is “judicial gloss unwarranted by the statutory language or its legislative history.” Smith, 180 F.3d at 1169.

II. The statutory language does not support MHS’s argument.

EEOC’s opening brief points out that the ADA requires employers to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified disabled employee unless the employer proves undue hardship. 42 U.S.C. § 12112(b)(5). The brief also noted that the reasonable accommodation “may include,” among other listed options, “reassignment to a vacant position” (id. at § 12111(9)) and that the dictionary definition of reassign (or assign) is to appoint. EEOC-Brief:22-29.

MHS does not dispute that the starting point for interpreting a statute is its language. It also skips over the plain meaning of “reassign.” MHS-Brief:22-24. In a footnote, however, MHS addresses the word “may.” Quoting St. Joseph’s, 842 F.3d at 1345, MHS argues that the “ADA does not say or imply that reassignment is always reasonable. To the contrary, the use of the word ‘may’ implies just the opposite: that reassignment will be reasonable in some circumstances but not in others.” MHS-Brief:19 n.5 (citation omitted).

EEOC agrees that reassignment is not always a reasonable accommodation, and an employer need not offer every listed option to every employee needing accommodation. An individual limited only in hearing, for example, need not be offered reassignment; a sign language interpreter (also a listed option) would most likely be better suited. But if MHS is arguing that the “may include” language allows MHS to choose never to provide reassignment, even if no other accommodation would work, that is incorrect. The employer’s obligation is to provide an accommodation that “effectively” accommodates the individual’s limitations. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005). If reassignment is the only accommodation that meets that standard, and all other requirements and limitations are met (see EEOC-Brief:29), then the employer must reassign the employee.

III. Barnett does not support MHS’s argument.

MHS alternatively argues that Barnett supports its policy of refusing ever to reassign an employee in violation of its best-qualified-selection policy. Barnett, MHS argues, holds that an employer need not reassign an employee in violation of a seniority system, so by analogy, it need not reassign in violation of its best-qualified-selection policy. That misreads Barnett.

As noted in EEOC’s opening brief (EEOC-Brief:37-38), after rejecting the employer’s preference argument, Barnett went on to explain the parties’ respective burdens where a requested accommodation might violate an employer’s disability-neutral rule or policy. 535 U.S. at 401-02. A plaintiff bears the initial burden of showing that the proposed accommodation “seems reasonable on its face, i.e., ordinarily or in the run of cases.” Id. at 402. And while not all accommodations are facially reasonable (see, e.g., Rogers v. Int’l Marine Terminals, 87 F.3d 755, 759-60 (5th Cir. 1996) (indefinite leave not reasonable accommodation)), the Court assumed that reassignment, which is in the list of suggested accommodations, ordinarily “would be reasonable within the meaning of the statute.” See id. at 402-03 (quoting reassignment provision). Once the plaintiff makes that showing, the burden shifts to the employer to show “special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Id. at 402.

The Supreme Court then concluded that, although the requested accommodation — assignment to the mail room — normally would be reasonable, it would probably not be reasonable in that case for one reason: “the assignment would violate the rules of a seniority system.” 535 U.S. at 403. In light of “the relevant seniority system advantages and related difficulties that result from violation of seniority rules,” the Court concluded, “it will ordinarily be unreasonable” for an assignment in violation of seniority rules to prevail. Id. at 405.

In MHS’s view, the “same reasons” that convinced the Supreme Court to excuse employers from violating a seniority system justify extending the exemption to best-qualified-selection policies. MHS-Brief:20, 24-26. EEOC addressed this argument in its opening brief (EEOC-Brief:40-43); MHS has neither responded nor added anything new. Notwithstanding MHS’s contrary assertions (MHS-Brief:20, 25), reassignment in violation of a best-qualified-selection policy would still not “conflict” with the “rights” of other employees in the same way reassignment in violation of a seniority provision would. Employees have actual “rights” to particular jobs under a seniority system; employees denied a job to which they are entitled can normally grieve the denial. In contrast, MHS’s applicants and employees have no such “rights” to a vacant position.

More importantly, as United Airlines recognized, Barnett strongly suggests that seniority is a narrow exception to the general rule that employers may need to provide reassignment even if they would violate a disability-neutral policy. Barnett devoted several pages to describing the special features of seniority systems and explaining why they deserve special treatment. Id. at 403-05. Best-qualified-selection policies have no such status. And because, as MHS notes, competitive hiring is the norm, expanding the exception to include best-qualified-selection policies would effectively swallow the rule and render the undue hardship provision meaningless.

Approaching the issue from a different angle, MHS then takes issue with the formulation of the first step of the Barnett test requiring the plaintiff to show that the proposed accommodation would be reasonable in the run of cases. MHS argues that the Commission “strangely” “misapplies” this step: the plaintiff actually must show that the proposed accommodation in light of the disability-neutral policy is reasonable in the run of cases. MHS-Brief:28-29. Thus, for example, if an employee were challenging a refusal to provide additional breaks for doctor’s visits and those breaks would conflict with the employer’s neutral break-from-work rules (535 U.S. at 398), MHS contends that the plaintiff would have to show that allowing additional breaks to see the doctor, in light of the employer’s neutral break-from-work rules, was an accommodation that is reasonable in the run of cases. MHS suggests that this reading is essentially compelled by the seniority system exception in Barnett. MHS-Brief:28-29.

That is incorrect. MHS cites no authority for this unwieldy formulation of the Barnett test. To the contrary, parties and courts routinely articulate the test as it was originally formulated by then-Judge Alito in Shapiro v. Township of Lakewood, 292 F.3d 356, 361 (3d Cir. 2002): “The first step requires the employee to show that the accommodation is a type that is reasonable in the run of cases.” Indeed, that is how MHS itself articulates the first step of the test elsewhere in its brief. See, e.g., MHS-Brief:18, 31. To the extent the proposed accommodation would conflict with an employer’s disability-neutral policy, the burden of showing the impact of that conflict (if any) falls on the employer.

IV. MHS’s asserted difficulty in defending its no-reassignment policy does not immunize the policy from a “global attack.”

The Commission alleges that MHS violates the ADA because it refuses ever to reasonably accommodate disabled employees by reassigning them to vacant positions for which they are qualified. In EEOC’s view, MHS’s policy of requiring that disabled employees needing reassignment compete for jobs is not a reasonable accommodation and, to the extent employees would otherwise be entitled to reassignment, MHS’s policy of no-reassignment should be enjoined.

MHS argues that the Commission may not “globally attack” this policy but must instead bring individual cases challenging specific refusals to reassign. According to MHS, the Commission is alleging that MHS “must preferentially place all minimally qualified disabled employees in all vacant positions,” so to defend its policy, MHS would have “to show undue hardship as to every position.” MHS-Brief:32-33. And, the argument goes, because this showing would be “unreasonably onerous” for MHS to make, its policy should be immune from challenge. MHS-Brief:31-33. This argument fails on several levels.

First, MHS mischaracterizes EEOC’s claim. The Commission is not alleging that MHS “must preferentially place all minimally qualified disabled employees in all vacant positions.” That is pure hyperbole. Rather, EEIC’s position is that MHS may not categorically refuse to consider reassigning a current employee to a vacant equivalent position (not a promotion) for which the individual is fully qualified when the impairment becomes so severe that the employee cannot continue doing his or her present job even with accommodation. That does not mean that MHS would be required to reassign a housekeeper to a vacant nursing position since the employee normally would not be qualified for that job, nor reassign the employee to a vacant supervisory position since doing so would entail a promotion. Moreover, reassignment would not be required if another accommodation would allow the individual to remain a housekeeper without undue hardship to MHS.

Significantly, MHS points to nothing in the statute that justifies its policy. There is nothing. Reassignment appears in the same list as the other suggested accommodations. 42 U.S.C. § 12111(9). MHS presumably would not argue that it may categorically refuse to provide adaptive equipment for vision-impaired employees or sign-language interpreters for deaf employees, for example. Id. As the Tenth Circuit stated, “to ask the question is to answer it.” Smith, 180 F.3d at 1167-68 & nn.6-7.

Second, that MHS would find it difficult to defend its policy does not immunize the policy from challenge. MHS may fine the undue hardship defense “unreasonably onerous” because its policy of categorical no-reassignment is indefensible. EEOC challenged a similar policy in United Airlines, and neither the Court nor the defendant suggested that the claim should fail simply because MHS would have trouble mounting a convincing defense. See generally 695 F.3d 760.

Finally, at least arguably, MHS’s suggestion that the Commission must “bring individual cases related to reassignment” effectively concedes that the no-reassignment policy is invalid. Otherwise, there would be no point to challenging “the reassignment of a specific disabled employee to a specific position.” MHS-Brief:31. The policy would explain the failure to reassign.

Accordingly, unless it agrees to do so voluntarily, MHS should be required to change its policy and conduct appropriate training, which it admits it does not do, to ensure its entire workforce understands that reassignment as a reasonable accommodation is no longer off the table. Rather, in appropriate circumstances, reassignment in fact may be required.

V. MHS cannot show that requiring reassignment in appropriate circumstances would cause undue hardship.

In the alternative, MHS argues that providing reassignment would cause undue hardship. MHS-Brief:34. According to MHS, its reputation for both safety and being a great place to work would be in jeopardy if it were forced to make reassignments. MHS opines that, unless it can select only the candidates it deems best qualified, it risks committing privacy violations and medical errors and employee morale would suffer.

EEOC’s opening brief addresses these concerns. EEOC-Brief:47-49. While agreeing that safety and confidentiality are important, the brief argued that the concern seems overstated in this context. Reassignment applies only to qualified current employees who presumably have a track record for safety and discretion. Moreover, MHS does not allege that it applies its policy when assigning injured workers to light duty, yet those assignments may also implicate safety and confidentiality. Adrianna Cook, for example, was assigned to the pharmacy where a medical error or confidentiality breach could have serious repercussions.

Furthermore, safety is a key concern for many employers who are nevertheless statutorily required to reassign disabled employees in appropriate circumstances. Indeed, the defendants in Barnett and United Airlines were airlines while Aka involved a hospital. Aka illustrates why reassignment is not, as a matter of law, unreasonable even for a hospital employer. The plaintiff in Aka had a 19-year history of good performance as an operating room orderly; while there, he learned about the pharmacy. See Aka, 156 F.3d at 1286, 1296. He also had a master’s degree in business and public administration in health services management. Id. at 1286. When his heart condition prevented him from continuing to work as an orderly, he sought but was denied reassignment to a vacant pharmacy assistant job — a job well within his expertise. On those facts, a jury could easily find that reassignment was appropriate.

By repeatedly describing disabled employees as “minimally qualified” (MHS-Brief:31, 36, 39), MHS implies that anyone other than a candidate MHS selected could barely do the job. Aka belies that assumption. Moreover, as it elsewhere stresses (MHS-Brief:30), MHS determines qualifications and may set the bar as high as it chooses. Employees who meet those qualifications should therefore be capable of doing the job not just “minimally” but well. And because only employees meeting those criteria qualify for reassignment, the placement should not materially depress the quality of the workforce.

As for morale, MHS suggests that changing its no-reassignment policy would dash “employee expectations that MHS would choose the most qualified” and undermine its ability “to retain the high quality employees it seeks.” MHS-Brief:25-26, 39. But that assumes employees would know the identity and qualifications of the other applicants; no evidence suggests that MHS discloses such information. Cf. ROA.460 (Cook’s rejection letter, stating only “another candidate” was selected). Moreover, since workplace injuries are not uncommon, employees might well appreciate knowing that, if they suffered a disabling injury but could still be productive, MHS would work with them to find another position for which they were qualified, rather than quietly ease them out of the workplace — and out of a paycheck. And, again, EEOC emphasizes that MHS is free to apply its best-qualified-selection policy in the vast majority of cases. See supra p.13.

VI. Summary judgment was inappropriate as to Adrianna Cook.

The Commission also argued that the district court erred in granting summary judgment on EEOC’s claim with respect to Adrianna Cook. According to the court, Cook was not qualified, failed to present a release, caused a breakdown in the interactive process, failed to treat reassignment as an accommodation of last resort, and rejected an offer of reasonable accommodation. The Commission argued that a jury could find for EEOC on all of these issues.

For the most part, MHS’s brief simply reiterates its district court arguments, which EEOC’s opening brief already addressed. As it did below, MHS devotes the bulk of its brief to challenging Cook’s qualifications. MHS continues to press its argument that Cook did not proffer a release, but ignores EEOC’s point that there is no contemporaneous evidence MHS gave any thought to whether she had a release or even knew she needed one (if she did). A jury could thus find this release issue was simply a post-hoc excuse for MHS’s treatment of Cook. MHS also asserts, incorrectly, that EEOC offered no evidence that Cook could work on July 2 when she applied for the scheduling coordinator’s job. MHS-Brief:42. To the contrary, the Commission argued that the June 29 doctor’s report clearly indicates that, while Cook could not do patient care work, she could do work requiring minimal lifting, bending, and twisting — like the scheduling coordinator’s position. See ROA.457 (doctor’s report); see also ROA.464 (Lincoln Financial email, listing Cook’s restrictions and asking if MHS could accommodate them).

MHS misunderstands EEOC’s point that whether MHS ever saw the doctor’s report is irrelevant to whether it shows Cook was qualified and able to work on July 2 (MHS-Brief:42-43, citing EEOC-Brief:51). EEOC did not offer the report to show MHS’s knowledge of Cook’s condition. For that, the Commission pointed to the July 12 doctor’s letter and July 9 Lincoln Financial email, both of which MHS received. MHS stresses that these documents arrived after her July 2 application for the scheduling coordinator’s job (MHS-Brief:43) but has no response to EEOC’s point that legally the relevant date is when the application was denied — the adverse action — not when Cook submitted the application. Evidence indicates that the denial occurred much later. And if MHS had questions about Cook’s condition, it should have asked Cook and/or her doctor. That is the point of the interactive process.

MHS also repeats its argument describing the email from Lincoln Financial as merely “inquiring about potential accommodations should Cook be released to return to work.” MHS-Brief:44. A jury, however, could view MHS’s reaction — a forwarding email to several HR managers asking if MHS could accommodate Cook’s restrictions (ROA.464) — as evidence MHS understood Lincoln Financial to be asking about actual accommodations needed at that moment, not at some hypothetical time should Cook ever be released to return to work.

MHS states that attendance is an essential function of every job, and that the Commission did not show Cook could work. That is a red herring. There is no evidence Cook ever had an attendance problem even on light duty, when she was in “tremendous pain.” ROA.561; see also ROA.639 (supervisor James: Cook’s performance was “very good” and she was never disciplined). Moreover, Cook repeatedly stated that she wanted to work, and her doctor clearly indicated that she could. ROA.562, 566-69 (Cook); ROA.457, 549 (doctor). A jury could therefore find that she would have had no attendance issues had she been reassigned to the scheduling coordinator position.

This also addresses MHS’s argument that the Commission was required but failed to identify a vacant position that Cook was qualified to perform. MHS-Brief:44-45, 48 n.15. The short answer is that MHS itself acknowledged that Cook was qualified for the scheduling coordinator’s position when MHS forwarded her application to the hiring manager (ROA.584-85). MHS admits it forwards only applications indicating that the applicant meets the job requirements. Id.; ROA.654-57.

MHS insists it satisfied its duty to engage in the interactive process when apparently out of the blue on August 7, Benefits Specialist Josie Hernandez sent Cook at letter offering six months of unpaid personal leave on condition that Cook’s doctor certify she could not work. MHS-Brief:46. Because Cook did not respond, MHS blames her for the breakdown of this so-called “interactive process.” This argument confirms that MHS does not understand the interactive process and how it should work.

Under the ADA, the employee bears the initial burden of identifying her disability and limitations and requesting reasonable accommodation. Taylor v. Principal Fin. Grp., 93 F.3d 155, 165 (5th Cir. 1996). That request triggers the employer’s obligation to initiate the interactive process and engage in “a meaningful dialogue with the employee to find the best means of accommodating that disability.” EEOC v. Chevron-Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009) (citation omitted). The point of this “dialogue” is to enable the parties “together” to determine what reasonable accommodations might be available. Id. at 621-22; see also EEOC v. LHC Grp., 733 F.3d 688, 700 (5th Cir. 2014) (if employee could no longer do her job, employer’s “duty” was “to work with her toward a reasonable accommodation”). This “need for bilateral discussion arises because ‘each party holds information the other does not have or cannot easily obtain.’” Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999) (citation omitted).[5]

Here, a jury could find that Employee Health Director Karen Barrett understood the Lincoln Financial email, along with other information, to mean that Cook was disabled but wanted to return to work with accommodations. Even if Cook’s previous repeated accommodation requests, along with her application for the scheduling coordinator’s job, were insufficient, a jury could find that Barrett’s knowledge was enough to trigger the interactive process.

A jury could also find that there was nothing “interactive” about any contacts MHS management had with Cook — no “dialogue” with Cook to determine “together” what reasonable accommodations might be available. To the contrary, MHS seems to assume that it can place the full onus for communication on the employee; MHS can simply sit back and wait. MHS, for example, faults Cook for failing to “communicate her plans to MHS when her FMLA leave ended,” adding that it was “not [MHS’s] responsibility to ascertain Cook’s plans” merely because it received a doctor’s note indicating that she could now do sedentary work. MHS-Brief:43. MHS also faults Cook for failing to “pick[] up the phone and call[] Josie Hernandez or stop[] by the Human Resources office to discuss her options.” MHS-Brief:49.

This misunderstands the process. A jury could easily find it was MHS’s responsibility to ascertain Cook’s plans as part of the interactive process. Yet, even when management was deciding what to do about Cook’s need for accommodation, no one suggested contacting Cook for her input, and nothing stopped Hernandez or another manager from picking up the phone and calling Cook. Instead, management unilaterally decided Cook should not return to work. Moreover, there is no evidence Cook had any idea how to obtain a reasonable accommodation; MHS admits that even supervisors receive no training, and no one is tasked with helping disabled employees needing reassignment. ROA.593. Nor does MHS point to evidence Cook had ever heard of Hernandez before receiving the August 7 letter; when she had previously asked for accommodation, her supervisor had no suggestions, and the HR person suggested that she “resign.” ROA.571-72.

MHS also repeats its argument that offering Cook unpaid leave was a reasonable accommodation. MHS-Brief:50. To the contrary, a reasonable accommodation “presently or in the immediate future enables the employee to perform the essential functions of the job in question.” EEOC-Brief:58 (citing Rogers, 87 F.3d at 759-60). MHS does not deny that additional leave for Cook would not have achieved that purpose since Cook could likely never return to patient care work. It was, therefore, not a reasonable accommodation. Only reassignment would have worked, and that was never on the table.[6]

Alternatively, MHS argues that Cook was not qualified for the scheduling coordinator’s position because she refused to accept MHS’s offer of reasonable accommodation. MHS-Brief:v, 51-52. That makes no sense. The so-called accommodation — unpaid leave — would not have rendered Cook more qualified for the scheduling coordinator’s position — which, in any event, had been filled by the time MHS got around to Cook. And had Cook bent her principles and asked her doctor to certify that she could not work so as to qualify for the leave, she would have been disqualified to work. The point of the ADA is to keep employees working and off the dole.

In short, a jury could easily find that, with or without a release, MHS was never going to reassign Cook to a job for which she was qualified — the scheduling coordinator’s position or any other. Any contrary arguments are smoke and mirrors.

CONCLUSION

The Court should reverse summary judgment on both claims and remand.

Respectfully submitted,

JAMES L. LEE /s/ Barbara L. Sloan

Deputy General Counsel BARBARA L. SLOAN

Attorney

JENNIFER S. GOLDSTEIN EQUAL EMPLOYMENT OPPORTUNITY Associate General Counsel COMMISSION

Office of General Counsel

ANNE NOEL OCCHIALINO 131 M Street, N.E., 5th Floor

Senior Appellate Attorney Washington, DC 20507

(202) 663-4721

fax: (202) 663-7090

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,455 words, from the Introduction through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2010 with Times New Roman 14-point font.

s/ Barbara L. Sloan

Attorney for Equal Employment

Opportunity Commission

Dated: October 16, 2017

[1] MHS argues that EEOC’s Reasonable Accommodation Guidelines are entitled only to Skidmore deference. MHS-Brief:22-24. EEOC agrees. The Guidelines are persuasive because they represent a consistent, well-reasoned, coherent interpretation of the ADA, based on its language, legislative history, structure, and purpose. See Skidmore v. Elec. Data Sys. Corp., 323 U.S. 134 (1944).

[2] MHS quibbles with the quotation marks around “explicitly or implicitly,” asserting that EEOC “references no legal authority for the quote.” MHS’s cite is to the Summary of Argument. See MHS-Brief:15-16 (citing EEOC-Brief:19). EEOC’s brief cites legal authority in the Argument section (EEOC-Brief:35 (citing cases)), which MHS evidently overlooked.

[3] MHS also asserts that the ADA does not require “affirmative action” (MHS-Brief:13) but does not explain how that differs from preferences, which MHS admits may be required.

[4] MHS also asserts that EEOC “wants” this Court to interpret that single sentence as the holding of Barnett. MHS-Brief:18-19, 28-29 (citing EEOC-Brief:37-38). We do not. We agree the Court should read and apply all of Barnett.

[5] MHS asserts that EEOC “appears to argue that it was incumbent on [MHS] to attempt additional communications with Cook, but provides no legal authority for this supposition.” MHS-Brief:47 n.14 (citing EEOC-Brief:57). In fact, the Commission does argue that MHS dropped the ball in the interactive process; the cited authority is on pages 53 and 54, not 57.

[6] MHS defends the offer of leave on the ground that Cook’s most recent doctor’s letter placed her off work. MHS-Brief:47 n.13. But the July 12 letter, which MHS received, upgraded her condition and the email chain clearly indicates that MHS management understood that Cook was seeking accommodation in order to return to work. ROA.461-64.