Case: 1:10-cv-01699 Document #: 1-2 Filed: 06/03/09 Page 1 of 5 PageID #:2

WILLIAM R. TAMAYO, SBN 084965

JONATHAN T. PECK, SBN 12303 (VA)

2 LINDA S. ORDONIO-DIXON, SBN 172830 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

3 San Francisco District Office 350 Tbe Embarcadero, Suite 500

4 San Francisco, CA 94105-1260 Telephone No. (415) 625-5654

5 Fax No. (415) 625-5657

E-filing

6 Attorneys for Plaintiff

7

8

UNITED STATES DISTRICT COURT

PJII

9

NORTHERN DISTRICT OF CALIFORNIA

10
EQUAL EMPLOYMENT 11 OPPORTUNITY COMMISSION,

248

12

Plaintiff,

v.

13

UNITED AIR LINES, INC.,

14

Defendant.

15

COMPLAINT- CIVIL RIGHTS EMPLOYMENT DISCRIMINATION 42 U.S.C. §§ 12t17(a)
. JURY TRIAL DEMAND

16

17 NATURE OF THE ACTION
18 This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of
19 the Civil Rights Act of 1991 to correct unl.awful employment practices on the basis of disability and
20 to provide appropriate relief to charging parties Joel Boswell, Margaret Bucaro, Patricia Hernandez,
21 Mary Price, Rosemary Verga and similarly-situated disabled employees of defendant United Air
22 Lines, Inc. who were adversely affected by such practices. Defendant unlawfully denied the charging
23 parties and similarly-situated disabled employees the reasonable accommodation of reassignment to
24 a vacant position for which they were qualified, and which they needed in order to accommodate
25 their respective disabilities.
26 II
27 II
28
COMPLAINT

Case: 1:10-cv-01699 Document #: 1-2 Filed: 06/03/09 Page 2 of 5 PageID #:3

2
1.

..

. jURISDICTION AND VENUE

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337, 1343, and

3 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with

4 Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12117(a), which incorporates by reference Section

5 706(f)(l) and (3) ofTitle VII ofthe Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §2000e-5(f)(1)

6 and (3) and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981 a.

7 2.

The employment practices alleged to be unlawful were and are now being committed within

8 the state of California, County of San Mateo, which is within the jurisdiction of this court. Similar

9
alleged unlawful employment practices were committed by Defendant throughout the United States.

10

11 INTRADISTRICT ASSIGNMENT

12 3.

Tnis action is appropriate for assignment to San Francisco/Oakland because the unlawful

13 employment practices alleged which involve Joel Boswell, Patricia Hernandez and Rosemary Verga,

14 were and are being committed in San Mateo County.

15

16 . PARTIES

17 4.

Plaintiff, the Equal Employment Opportunity Commission (EEOC), is the agency of the

18 United States of America charged with the administration, interpretation, and enforcement of Title I

19 of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C.

20 §12117(a), which incorporates by reference Sections 706(f)(l) and (3) of Title VII, 42 U.S.C.

21 §2000e-5(f)(1) and (3).

22 5.

At all relevant times, Defendant United Airlines, Inc. (UAL) has continuously been a

23 Delaware Corporation, doing business in the State of California, in the County of San Mateo, and

24 has continuously had at least fifteen employees.

25 6.

At all relevant times, Defendant UAL has continuously been an employer engaged in an

26 industry affecting commerce under Section 101(5) of the. ADA, 42 U.S.C.§ 12111(5), and Section

27

28

COMPLAINT

2.

,·

Case: 1:10-cv-01699 Document #: 1-2 Filed: 06/03/09 Page 3 of 5 PageID #:4

101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 70l(g) and (h) 2
of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 3
7. At all relevant times, Defendant UAL has been a covered entity under Section 101(2) of the
4
ADA, 42 U.S.C. § 12111(2). 5

6 STATEMENT OF CLAIMS

7 8.

More than thirty days prior to the institution of this lawsuit, charging parties Joel Boswell,

8 Margaret Bucaro, Patricia Hernandez, Mary Price, Rosemary Verga filed charges with the EEOC

9 alleging violations of Title I of the ADA by Defendant. All conditions precedent to the institution of

10 this lawsuit have been fulfilled.

11 9. Since at least June of 2003, Defendant UAL has engaged in unlawful employment practices

12 at its facilities located nationwide in violation of Section 102(a) and (b)(5)(A) of the ADA, 42

13 U.S.C. § 12112(a) and (b)(5)(A). Specifically Defendant UAL has instituted and maintains policies

14

,..·

and practices which fail to accommodate individuals with disabilities and which require disabled

15 employees to compete for reassignment into vacant positions for which they are minimally qualified

16 and to which they need transfer in order to accommodate their respective disabilities.

17 10. The effect of the practices complained of in paragraph 9 above has been to deprive charging

18 parties Joel Boswell, Margaret Bucaro, Patricia Hernandez, Mary Price, Rosemary Verga and

19 similarly-situated disabled employees of equal employment opportunities and otherwise to adversely

20 affect their status as employees because of their respective disabilities.

21 11. The unlawful employment practices complained of in paragraph 9 above were and are

22 intentional.

23 12. The unlawful employment practices complained of in paragraph 9 above were and are done

24 .. with malice and/or reckless indifference to the federally protected rights of charging parties Joel 25
Boswell, Margaret Bucaro, Patricia Hernandez, Mary Price, Rosemary Verga and similarly-situated

26 disabled employees.

27 II
28 ..

COMPLAINT

3.

Case: 1:10-cv-01699 Document #: 1-2 Filed: 06/03/09 Page 4 of 5 PageID #:5

PRAYER FOR RELIEF

2 WHEREFORE, the EEOC respectfully requests that this Court:

3 A. Grant a permanent injunction enjoining Defendant UAL, its officers, successors,

4 assigns, and all persons in active concert or participation with it, from engaging in the conduct

5 described in paragraph 9 above and any employment practice which discriminates on the basis of

6 disability.

7 B. Order Defendant UAL to institute and carry out policies, practices, and programs

8 which provide equal employment opportunities for qualified individuals with disabilities, and which

9 'eradicate the effects of its past and present unlawful employment practices.

10

c. Order Defendant UAL to make whole charging parties Joel Boswell, Margaret

11 Bucaro, Patricia Hernandez, Mary Price, Rosemary Verga and similarly-situated disabled

12 employees, by providing appropriate lost income with prejudgment interest, in amounts to be

13 determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful

14 employment practices, including rightful-place hiring and/or reinstatement.

15 I D. Order Defendant UAL to make whole charging parties Joel Boswell, Margaret
16 1i Bucaro, Patricia Hernandez, Mary Price, Rosemary Verga and similarly-situated disabled employees

17 by providing compensation for past and future pecuniary losses resulting from the unlawful

18 employment practices described above, including medical expenses, with interest, in amounts to be

19 determined at trial.

20
E. Order Defendant UAL to make whole charging parties Joel Boswell, Margaret

21 Bucaro, Patricia Hernandez, Mary Price, Rosemary Verga and similarly-situated disabled employees

22 by providing compensation for past and future non-pecuniary losses resulting from the above

23 unlawful employment practices, including pain and suffering, emotional distress, indignity, loss of

24 enjoyment of life, loss of self-esteem, and humiliation, in amounts to be determined at trial.
25 F. Order Defendant UAL to pay charging parties Joel Boswell, Margaret Bucaro,
26
Patricia Hernandez, Mary Price, Rosemary Verga and similarly-situated disabled employees punitive 27
damages for its malicious and reckless conduct described above, in amounts to be determined at
28

COMPLAINT

4.

Case: 1:10-cv-01699 Document #: 1-2 Filed: 06/03/09 Page 5 of 5 PageID #:6

trial.
2
G. 3
interest. 4
H. 5

Grant such further relief as the Court deems necessary and proper in the public Award the EEOC its costs in this action.

6 JURY TRIAL DEMAND
7 The EEOC requests a jury trial on all questions of fact raised by its complaint.
8

9

Respectfully submitted,

10

11

JAMES LEE

Deputy General Counsel

12

U. S. EQUAL EMPLOYMENT

13

OPPORTUNITY COMMISSION

1801 L Street, N.W.

14

Washington, D .C. 20507

15 May 8, 2009

16

17

18

19

20

21

Attorneys for Plaintiff EEOC

22

U. S. EQUAL EMPLOYMENT

23

OPPORTUNITY COMMISSION

San Francisco District Office

24

350 The Embarcadero, Suite 500

SanFrancisco, California 94105-1260

25

26

27

28

COMPLAINT

5.

 
 Case4:09-cv-02469-PJH Document2 Filed06/04/09 Page1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

EQUAL EMPLOYMENT OPPORTUNITY,
Plaintiff (s), v.
UNITED AIRLINES,
Defendant(s).

No. C 09-02469 PJH
ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE AND ADR DEADLINES

IT IS HEREBY ORDERED that this action is assigned to the Honorable Phyllis J. Hamilton.
When serving the complaint or notice of removal, the plaintiff or removing defendant must serve on all other parties a copy of this order and all other documents specified in Civil Local Rule 4-2. Counsel must comply with the case schedule listed below unless the Court otherwise orders.
IT IS FURTHER ORDERED that this action is assigned to the Alternative Dispute Resolution (ADR) Multi-Option Program governed by ADR Local Rule 3. Counsel and clients shall familiarize themselves with that rule and with the material entitled ADispute Resolution Procedures in the Northern District of California@ on the Court ADR Internet site at www.adr.cand.uscourts.gov. A limited number of printed copies are available from the Clerk=s Office for parties in cases not subject to the court=s Electronic Case Filing program (ECF).
IT IS FURTHER ORDERED that plaintiff or removing defendant serve upon all parties the brochure entitled AConsenting To A Magistrate Judge=s Jurisdiction In The Northern District Of California,@ additional copies of which can be downloaded from the following Internet site: http://www.cand.uscourts.gov.
CASE SCHEDULE -ADR MULTI-OPTION PROGRAM

Date
6/4/2009

Event
Complaint filed

Governing Rule

8/20/2009 9/3/2009

*Last day to:

FRCivP_26(f) & ADR

$ meet and confer re: initial disclosures, early settlement, L.R.3-5

ADR process selection, and discovery plan

$ file ADR Certification signed by Parties and Counsel (form available at http://www.cand.uscourts.gov)

Civil_L.R. 16-8 (b) & ADR L.R. 3-5(b)

$ file either Stipulation to ADR Process or Notice of Need for ADR Phone Conference (form available at http://www.cand.uscourts.gov)

Civil_L.R. 16-8 (c) & ADR L.R. 3-5(b) & (c)

Last day to file Rule 26(f) Report, complete initial

FRCivP 26(a) (1)

disclosures or state objection in Rule 26(f) Report and file Civil _L.R . 16-9

Case4:09-cv-02469-PJH Document2 Filed06/04/09 Page2 of 2

9/10/2009

Case Management Statement per attached Standing Order re Contents of Joint Case Management Statement (also available at http://www.cand.uscourts.gov)
INITIAL CASE MANAGEMENT CONFERENCE (CMC) in Courtroom 3 17th Flr at 2:30 PM

Civil _L.R. 16-10

*If the Initial Case Management Conference is continued, the other deadlines are continued
accordingly.

Case4:09-cv-02469-PJH Document2-1 Filed06/04/09 Page1 of 4

Case4:09-cv-02469-PJH Document2-1 Filed06/04/09 Page2 of 4

Case4:09-cv-02469-PJH Document2-1 Filed06/04/09 Page3 of 4

Case4:09-cv-02469-PJH Document2-1 Filed06/04/09 Page4 of 4

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
MAR 12 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

In re: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Petitioner, v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (OAKLAND),
Respondent, UNITED AIR LINES, INC.,
Real Party in Interest.

No. 09-73958 D.C. No. 4:09-cv-02469-PJH Northern District of California, Oakland
ORDER

Before: SCHROEDER, PREGERSON and LEAVY, Circuit Judges. Petitioner has not demonstrated that this case warrants the intervention of
this court by means of the extraordinary remedy of mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). Accordingly, the petition is denied.
ln/MOATT

 
 Case: 1:10-cv-01699 Document #: 51 Filed: 10/26/10 Page 1 of 6 PageID #:259

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v.
UNITED AIR LINES, INC.,
Defendant.

CIVIL ACTION NO. 1:10-cv-01699 HDL
SECOND AMENDED COMPLAINTCIVIL RIGHTS EMPLOYMENT DISCRIMINATION 42 U.S.C. §§ 12117(a)
JURY TRIAL DEMAND

Plaintiff Equal Employment Opportunity Commission files this Second Amended Complaint pursuant to the Court direction on October 21, 2010.
NATURE OF THE ACTION This is an action under Title I of th e Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unla wful employment practices on the basis of disability and to provide appropr iate relief to ch arging parties Joel Bos well, Margaret Bucaro, Patricia Hernandez, Mary Price, Rosem ary Verga and similarly-situated disabled employees of defendant United Air Lines, Inc. who were a dversely affected by such practices. Defendant unlawfully denied the charging parties and sim ilarly-situated disabled employees the reasonable accommodation of reassignment to a vacant pos ition for which they were qualified, and which they needed in order to accommodate their respective disabilities.

Case: 1:10-cv-01699 Document #: 51 Filed: 10/26/10 Page 2 of 6 PageID #:260
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337, 1343, and 1345. This action is authorized a nd instituted pursuant to Secti on 107(a) of the Am ericans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §12117(a), which incorporates by reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S .C. §2000e5(f)(1) and (3) and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. 2. The employment practices alleged to be unlawful were and are now being committed within the state of Illinois, which is within the jurisdiction of this court. Similar alleged unlawful employment practices were committed by Defendant throughout the United States.
PARTIES 3. Plaintiff, the Equal Em ployment Opportunity Commission (EEOC), is the agency o f the United States of Am erica charged with the adm inistration, interpretation, and enforcem ent of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. §12117(a), which incorporates by referenc e Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. §2000e-5(f)(1) and (3). 4. At all relevant tim es, Defendant United Ai rlines, Inc. (U AL) has continuously been a Delaware Corporation, doing business in the S tate of Illinois and has c ontinuously had at least fifteen employees. 5. At all relevant tim es, Defendant UAL has c ontinuously been an e mployer engaged in an industry affecting comm erce under Section 1 01(5) of the ADA, 42 U.S.C.§ 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
2

Case: 1:10-cv-01699 Document #: 51 Filed: 10/26/10 Page 3 of 6 PageID #:261
6. At all relevant times, Defendant UAL has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thir ty days prior to the institution of this la wsuit, charging parties Joel Boswell, Margaret Bucaro, Patricia Hernandez, Mary Price, Rosemary Verga filed charges with the EEOC alleging violations of Title I of th e ADA by De fendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least June of 2003, De fendant UAL has engaged in unlawful e mployment practices at its facilities locat ed nationwide in violation of S ection 102(a) and (b )(5)(A) of th e ADA, 42 U.S.C. Sec. 12112(a) and (b)(5)(A). Specifically, in June of 200 3, Defendant implemented a written policy en titled "United Airlines Reasonable Accommodation Process Guidelines for Managers” which provides, in per tinent part, procedures in situations where “an accommodation within the employee’s current job cannot be accomplished.” [Exhibit A, page 8 to 9, section d. “Identifying Possi ble Accommodations Outside the Current Job Classification.”] These guidelines require qualified employees with disabilities to compete for vacan t positions which are needed as a reasonable accommodation. Specifically, the guidelines require a disabled employee to be the best qualified individual, or tied in qu alifications with the best qualif ied individual, to receive p riority consideration for placement in a vacant position needed as an accommodation. 9. The effect of the practices com plained of in paragraph 8, above, has been to deprive charging parties Joel B oswell, Margaret Bucaro, Patricia Hernandez, Mary Pr ice, Rosemary Verga and sim ilarly-situated disabled em ployees of equal em ployment opportunities and
3

Case: 1:10-cv-01699 Document #: 51 Filed: 10/26/10 Page 4 of 6 PageID #:262
otherwise to adversely affect their status as employees because of their respective disabilities. 10. The unlawful employment practices complained of in paragraph 8, above, were and are intentional. 12. The unlawful employment practices complained of in paragraph 8, above, were and are done with malice and/or reckless indifference to the federally protected rights of charging parties Joel Boswell, Margaret Bucaro, Patricia Hernandez, Mary Price, Rosemary Verga and similarlysituated disabled employees.
PRAYER FOR RELIEF WHEREFORE, the EEOC respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant UAL, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in the conduct described in paragraph 8 above and any employment practice which discriminates on the basis of disability. B. Order Defendant UAL to institute and carry out policies, pr actices, and programs which provide equal employm ent opportunities for qualified individuals w ith disabilities, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant UAL to m ake whole ch arging parties Jo el Boswell, Margaret Bucaro, Patricia Hernandez, Mary Price, Ros emary Verga and sim ilarly-situated disabled employees, by providing appropriate lost incom e with prejudgm ent interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including rightful-place hiring and/or reinstatement. D. Order Defendant UAL to m ake whole charging parties Jo el Boswell, Margaret
4

Case: 1:10-cv-01699 Document #: 51 Filed: 10/26/10 Page 5 of 6 PageID #:263

Bucaro, Patricia Hernandez, Mary Price, Ros emary Verga and sim ilarly-situated disabled employees by providing com pensation for past a nd future pecuniary losse s resulting from the unlawful employment practices described above, including medical expenses, with interest, in amounts to be determined at trial.
E. Order Defendant UAL to m ake whole ch arging parties Jo el Boswell, Margaret Bucaro, Patricia Hernandez, Mary Price, Ros emary Verga and sim ilarly-situated disabled employees by providin g compensation for pas t and future non-pecuniary loss es resulting from the above unlawful employment practices, incl uding pain and sufferin g, emotional distress, indignity, loss of enjoym ent of life, loss of self-esteem , and humiliation, in amounts to be determined at trial.
F. Order Defendant UAL to pay charging parties Joel Boswell, Marg aret Bucaro, Patricia Hernandez, M ary Price, R osemary Verga and similarly-situated disabled employees punitive damages for its m alicious and reck less conduct describ ed above, in amounts to be determined at trial.

G. interest.
H.

Grant such further relief as the Co urt deems necessary an d proper in the public Award the EEOC its costs in this action.

// // // //

5

Case: 1:10-cv-01699 Document #: 51 Filed: 10/26/10 Page 6 of 6 PageID #:264

JURY TRIAL DEMAND The EEOC requests a jury trial on all questions of fact raised by its complaint.

P. DAVID LOPEZ General Counsel
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507

October 26, 2010

//s// William R. Tamayo___________ WILLIAM R. TAMAYO Regional Attorney
//s// Jonathan T. Peck JONATHAN T. PECK Supervisory Trial Attorney
//s// Linda Ordonio-Dixon LINDA ORDONIO-DIXON Senior Trial Attorney
Attorneys for Plaintiff EEOC
U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, California 94105-1260 (415) 625-5654

6

 
 AO 450C(Raevs.e5/:851)J:u1dg0m-ecnvt i-n0a1C6ivi9l C9asDe ocument #: 57 Filed: 02/03/11 Page 1 of 1 PageID #:317
United States District Court
Northern District of Illinois
Eastern Division

EEOC v.
United Air Lines Inc.

JUDGMENT IN A CIVIL CASE Case Number: 10 C 1699

G Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury rendered its verdict.
O Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that defendant’s motion to dismiss plaintiff’s second amended complaint for failure to state a claim is granted.

Date: 2/3/2011

Michael W. Dobbins, Clerk of Court
________________________________ /s/ Wanda A. Parker, Deputy Clerk

 
 Case: 1:10-cv-01699 Document #: 58 Filed: 03/23/11 Page 1 of 8 PageID #:318 1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

2

EASTERN DIVISION

3

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

4

)

Plaintiff, )

5

)

v.

)

6

)

UNITED AIR LINES, INC.,

)

7

)

Defendant.

)

8

Docket No. 10 C 1699
Chicago, Illinois February 3, 2011 9:00 o'clock a.m.

9

10

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE HARRY D. LEINENWEBER

11

12

13

14

15

Court Reporter:

16

17

18

GAYLE A. MCGUIGAN, CSR, RMR, CRR Official Court Reporter 219 South Dearborn Street Room 1944 Chicago, Illinois 60604 (312) 435-6047

19

20

21

22

23

24

25

Case: 1:10-cv-01699 Document #: 58 Filed: 03/23/11 Page 2 of 8 PageID #:319 2

1

(Proceedings had in open:)

2

3

THE CLERK: 10 C 1699, Equal Employment Opportunity

4

Commission versus United Air Lines, Inc.

5

THE COURT: Before this Court is Defendant's motion to

6

dismiss Plaintiff's Second Amended Complaint for failure to

7

state a claim. For the reasons that follow, the motion is

8

granted.

9

Background: Plaintiff Equal Employment Opportunity

10

Commission alleges in its Second Amended Complaint that

11

Defendant United Air Lines, Inc., is in violation of the

12

Americans with Disabilities Act, "ADA," because its guidelines

13

require qualified employees with disabilities to compete for

14

vacant positions that are needed as a reasonable accommodation.

15

Under Defendant's guidelines, in order to receive priority

16

consideration for placement in a vacant position as an

17

accommodation, a disabled employee must be at least tied in

18

qualifications with the best applicant. The ADA prohibits

19

employers from discriminating on the basis of disability.

20

Included in its definition of discrimination is the failure to

21

make reasonable accommodations for a disabled employee,

22

including reassignment to a vacant position. 42 U.S.C. 12111

23

(9)(B), 12112(b)(5)(A).

24

Defendant moved to dismiss pursuant to Federal Rule of

25

Civil Procedure 12(b)(6). Defendant contends that Plaintiff can

Case: 1:10-cv-01699 Document #: 58 Filed: 03/23/11 Page 3 of 8 PageID #:320 3

1

prove no set of facts entitling it to relief because this Court

2

is bound to follow the Seventh Circuit's ruling in EEOC versus

3

Humiston-Keeling, Inc. In Humiston-Keeling, the Court held that

4

the "ADA does not require an employer to reassign a disabled

5

employee to a job for which there is a better applicant,

6

provided it's the employer's consistent and honest policy to

7

hire the best applicant for the particular job in question

8

rather than the first qualified applicant." 227 F.3d 1024, 1029

9

(2000). Plaintiff makes no allegation that Defendant's policy

10

is spurious or inconsistently applied.

11

Analysis: In Humiston-Keeling, the Seventh Circuit

12

rejected a claim by the EEOC that is identical to the one in

13

this case, namely that the reassignment provision of the ADA

14

requires that a disabled employee receive a position over a more

15

qualified nondisabled employee as long as the disabled employee

16

is capable of performing the work required for the position.

17

The Court held that such an interpretation would convert the ADA

18

from a non-discrimination law into a "mandatory preference" law

19

and would be inconsistent with the aims of the ADA. Rather, the

20

Seventh Circuit interpreted the reassignment provision as

21

requiring the employer to consider whether it is possible to

22

assign the disabled worker to another position in which his or

23

her disability will not be a hindrance. If such a reassignment

24

is feasible, and there are no other superior applicants, then

25

the ADA mandates reassignment. 227 F.3d at 1027-29.

Case: 1:10-cv-01699 Document #: 58 Filed: 03/23/11 Page 4 of 8 PageID #:321 4

1

The circuits are split as whether reassignment is

2

mandatory under the ADA. For example, the Tenth Circuit has

3

held that reassignment must be offered to a disabled employee

4

regardless of whether there are better qualified applicants.

5

Smith versus Midland Brake, Inc., 180 F.3d 1154, 1167(1999).

6

But the Eighth Circuit has held that reassignment under the ADA

7

requires only that an employer allow a disabled worker to

8

compete for the job desired as an accommodation. Huber versus

9

Wal-Mart Stores, Inc., 486 F.3d 480, 483 (2007).

10

Generally, even when there is disagreement among the

11

circuits, this Court is bound to follow Seventh Circuit

12

precedent. See U.S. ex rel. Rice v. Cooper, 95 C 5507, 1997 WL

13

282734 at *4 (N.D. Ill. May 16, 1997). Plaintiff argues,

14

however, that stare decisis does not apply because

15

Humiston-Keeling has been overruled or at the very least

16

undermined by the United States Supreme Court in U.S. Airways

17

versus Barnett, 535 U.S. 391 (2002). In Barnett, the Supreme

18

Court held that ordinarily, an accommodation is not reasonable

19

if it conflicts with the rules of an employer's seniority

20

system. However, in so ruling, the Court rejected defendant's

21

argument that the ADA never requires an employer to grant an

22

accommodation to a disabled employee if' test accommodation

23

would violate a disability neutral rule. The Court reasoned

24

that preferences for disabled employees in the form of

25

reasonable accommodations are sometimes necessary to carry out

Case: 1:10-cv-01699 Document #: 58 Filed: 03/23/11 Page 5 of 8 PageID #:322 5

1

the goals of the ADA, even if the difference in treatment

2

violates an employer's disability neutral rule. As examples,

3

the Court noted that neutral workplace rules limiting break time

4

or furniture expenses may require exceptions for disabled

5

employees. 535 U.S. at 394-97.

6

However, the high Court in Barnett did not face the

7

precise issue presented here: Whether a disabled employee must

8

be given a preference in obtaining a vacant position where the

9

employer has guidelines requiring that vacant positions go to

10

the best qualified applicant. Further, the Court noted that the

11

ADA "requires preferences in the form of 'reasonable

12

accommodations' that are needed for those with disabilities to

13

obtain the same workplace opportunities that those without

14

disabilities automatically enjoy." Barnett, 535 U.S. at 397.

15

The Seventh Circuit has consistently drawn a distinction between

16

requiring employers to eliminate obstacles to hiring disabled

17

employees and requiring employers to hire disabled employees

18

even in the face of superior applicants. Humiston-Keeling, 227

19

F.3d at 1028-29.

20

Barnett did not explicitly overrule Humiston-Keeling

21

and it is far from clear that it did so implicitly. In face, in

22

a Rehabilitation Act case, applying the same standards as are

23

used for an ADA claim, the Seventh Circuit described Barnett's

24

holding regarding seniority rules as "bolster[ing]" the

25

Humiston-Keeling rule. Mays versus Principi, 301 F.3d 866, 872

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1

(7th Cir. 2002). Since then, the Seventh Circuit has continued

2

to cite Humiston-Keeling with favor. See King versus City of

3

Madison, 550 F.3d 598, 600-01 (2008) (finding employer provided

4

reasonable accommodation for disabled employee who failed to

5

obtain a job outside her bargaining unit because she was not the

6

most qualified applicant); Craig versus Potter, 90 Fed. App'x

7

160, 163 (2004) (holding in a Rehabilitation Act case that it

8

would be unreasonable to force employer to abandon its policy of

9

hiring the best applicant). This Court is bound to follow those

10

rulings.

11

As additional support for its argument, Plaintiff

12

points to the EEOC's regulations interpreting a reasonable

13

accommodation as including reassignment to a vacant position.

14

29 C.F.R. 1630.2(o)(2)(ii). The EEOC has interpreted the

15

reasonable accommodation requirement as requiring more than just

16

that the disabled employee be allowed to compete for a vacant

17

position. Rather, under the EEOC's interpretation,

18

"reassignment means that the employee gets the vacant position"

19

if qualified for it. "Otherwise, reassignment would be of

20

little value and would not be implemented as Congress intended."

21

Enforcement Guidance,

22

http://www.eeoc.gov/policy/docs/accommodation.html. Plaintiff

23

argues this Court should defer to its interpretation of the

24

reassignment provision.

25

However, agency interpretations are entitled to

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1

deference only where the intent of Congress is unclear. Chevron

2

versus Natural Resources Defense Counsel, Inc., 467 U.S. 837,

3

842-43 (1984). In Humiston-Keeling, the Seventh Circuit found

4

no ambiguity in the reassignment provision and expressly

5

rejected the same interpretation that the EEOC puts forward

6

today. It found the reassignment provision is not rendered

7

meaningless simply because reassignment is not mandatory

8

whenever the disabled employee is minimally qualified for the

9

position. Rather, the Court held, the provision serves to

10

obligate the employer to consider the possibility of

11

reassignment to another position, rather than merely undertaking

12

efforts to help the worker do the job for which he or she was

13

hired. Further, the law mandates reassignment whenever it is

14

feasible and there is no superior applicant. 227 F.3d at

15

1027-28.

16

A complaint should be dismissed under Rule 12(b)(6)

17

only if it is clear that the "plaintiff can prove no set of

18

facts in support of her claim that would entitle her to relief."

19

Doherty versus City of Chicago, 75 F.3d 318, 322 (7th Cir.

20

1996). Given that Humiston-Keeling is directly on point and has

21

not been overruled by the Seventh Circuit, this is such a case.

22

Conclusion: Defendant's motion to dismiss is granted.

23

- - - - -

24

25

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1

C E R T I F I C A T E

2

I certify that the foregoing is a correct transcript from

3

the record of proceedings in the above-entitled matter.

4

s/s_________________________________

5

GAYLE A. McGUIGAN, CSR, RMR, CRR

Official Court Reporter

6

_________ Date

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

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 Case: 1:10-cv-01699 Document #: 69 Filed: 07/18/13 Page 1 of 11 PageID #:365

Case: 11-1774 Document: 00712035986

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In the
United States Court of Appeals
For the Seventh Circuit

No. 11-1774 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant, v.

UNITED AIRLINES, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 10-cv-01699—Harry D. Leinenweber, Judge.

ARGUED OCTOBER 20, 2011—DECIDED SEPTEMBER 7, 2012

Before CUDAHY, KANNE, and SYKES, Circuit Judges.
CUDAHY, Circuit Judge. First, the procedural posture of this case requires brief discussion. An earlier version of this opinion suggested that rehearing en banc was warranted for the full court to consider overruling EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), in light of U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). The EEOC then petitioned for rehearing en banc, and United Airlines, Inc. filed a response. Thereafter, every member

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of the court in active service approved overruling Humiston-Keeling and it was suggested that the panel use Circuit Rule 40(e) for that purpose. However, the usual formal en banc procedure involving argument to the full court was not pursued. We vacate the original panel opinion and now issue this opinion overruling Humiston-Keeling. We have circulated the new panel opinion to the full court under Rule 40(e), and no member of the court has asked to rehear the case en banc. With that procedural explanation, we now proceed to the merits.
In this case, the Equal Employment Opportunity Commission (EEOC) asks this court to change its interpretation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). The case turns on the meaning of the word “reassignment.” The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. 42 U.S.C. § 12111(9). The EEOC contends that “reassignment” under the ADA requires employers to appoint employees who are losing their current positions due to disability to a vacant position for which they are qualified. However, this court has already held in Humiston-Keeling, 227 F.3d at 1029, that the ADA has no such requirement. The EEOC argues that the Supreme Court’s ruling in Barnett, 535 U.S. at 391, undermines Humiston-Keeling. Several courts in this circuit have relied on Humiston-Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of HumistonKeeling’s continued vitality. The present case offers us the opportunity to correct this continuing error in our

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jurisprudence. While we understand that this may be a close question, we now make clear that HumistonKeeling did not survive Barnett. We reverse and hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. We remand with instructions that the district court determine if mandatory reassignment would be reasonable in the run of cases and if there are fact-specific considerations particular to United’s employment system that would render mandatory reassignment unreasonable in this case.
In 2003, United Airlines set out Reasonable Accommodation Guidelines that address accommodating employees who, because of disability, can no longer do the essential functions of their current jobs even with reasonable accommodation. While the guidelines note that “transfer . . . [to] an equivalent or lower-level vacant position” may be a reasonable accommodation, the guidelines specify that the transfer process is competitive. Accordingly, employees needing accommodation will not be automatically placed into vacant positions but instead will be given preferential treatment. This allows employees needing accommodation to submit an unlimited number of transfer applications, be guaranteed an interview and receive priority consideration over a similarly qualified applicant—that is, if two candidates are equally qualified, the employee-applicant seeking accommodation will get the job.

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The EEOC filed suit in San Francisco, alleging that United’s policy violates the ADA. The district court granted United’s motion to transfer the case to Illinois. That district court granted United’s motion to dismiss the suit under Rule 12(b)(6). The court noted that binding precedent, Humiston-Keeling, 227 F.3d at 1028-29, held that a competitive transfer policy does not violate the ADA. The court also rejected the EEOC’s contention that the Supreme Court’s decision in Barnett undermined Humiston-Keeling.
We review a dismissal under Rule 12(b)(6) de novo. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A complaint must provide “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This court construes the complaint “in the light most favorable to the plaintiff, accepting as true all wellpleaded facts alleged, and drawing all possible inferences in [the EEOC’s] favor.” Tamayo, 526 F.3d at 1081 (citing Killingsworth v. HSBC Bank Nev., 507 F.3d 614, 618 (7th Cir. 2007)). We have jurisdiction to hear EEOC’s appeal under 28 U.S.C. § 1291.
The district court noted that Humiston-Keeling is directly on point and has not been overruled by the Seventh Circuit. The district court is correct on both points. Humiston-Keeling involved a worker, Houser, who could no longer perform her conveyor job due to an injured arm. 227 F.3d at 1026. After taking a temporary greeter position, Houser applied for vacant clerical positions

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within the company but did not get any of these jobs. Id. The EEOC brought suit, arguing the “reassignment form of reasonable accommodation . . . require[s] that the disabled person be advanced over a more qualified nondisabled person, provided only that the disabled person is at least minimally qualified to do the job, unless the employer can show undue hardship.” Id. at 1027 (internal quotation marks omitted). This court rejected that assertion, holding 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.” Id. at 1029.
The EEOC invites this court to overturn HumistonKeeling, arguing that Barnett undercuts the reasoning of Humiston-Keeling. In Barnett, the Supreme Court considered reassignment under the ADA in the context of a seniority system. 535 U.S. at 393-95. Robert Barnett injured his back while working as a cargo-handler for U.S. Airways. Id. at 394. He invoked seniority, not his disability status, and transferred to a mailroom position. Id. Later, at least two employees senior to Barnett intended to bid for the mailroom position. Id. Barnett argued he should be allowed to keep this position and claimed his reassignment was a reasonable accommodation mandated by the ADA because he was an individual with a disability capable of performing the essential functions of the mailroom job. Id. at 394-95.
The Supreme Court first noted that “[t]he simple fact that an accommodation would provide a ‘preference’—in

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the sense that it would permit the worker with a disability to violate a rule that others must obey—cannot, in and of itself, automatically show that the accommodation is not ‘reasonable.’ ” Id. at 398 (emphasis in original). Instead, the Court outlined a two-step, case-specific approach. The “plaintiff/employee . . . need only show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases.” Id. at 401. Once the plaintiff has shown he seeks a reasonable method of accommodation, the burden shifts to the defendant/employer to “show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Id. at 402.1 While Barnett’s

1 A helpful summary of the Barnett framework is provided in Shapiro v. Township of Lakewood, 292 F.3d 356, 361 (3d Cir. 2002):
It therefore appears that the Court has prescribed the following two-step approach for cases in which a requested accommodation in the form of a job reassignment is claimed to violate a disability-neutral rule of the employer. The first step requires the employee to show that the accommodation is a type that is reasonable in the run of cases. The second step varies depending on the outcome of the first step. If the accommodation is shown to be a type of accommodation that is reasonable in the run of cases, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the particular circumstances of the case. On the other hand, if the accommodation is not shown to be a type of accommodation that is reasonable in the run of cases, the employee can still prevail by showing that
(continued...)

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request for assignment to the mailroom was a “reasonable accommodation” within the meaning of the statute, the violation of a seniority system “would not be reasonable in the run of cases.” Id. at 403. An “employer’s showing of violation of the rules of a seniority system is by itself ordinarily sufficient” to demonstrate that the accommodation sought is unreasonable. Id. at 405. However, the Court was careful to point out that it was not creating a per se exception for seniority systems, since “[t]he plaintiff . . . nonetheless remains free to show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested ‘accommodation’ is ‘reasonable’ on the particular facts.” Id.
The EEOC points out that U.S. Airways relied heavily on Humiston-Keeling and, more importantly, that the Barnett Court flatly contradicted much of the language of Humiston-Keeling. U.S. Airways argued that it was not required to grant a requested accommodation that would violate a disability-neutral rule, using the argument from Humiston-Keeling that the ADA is “not a mandatory preference act” but only a “nondiscrimination statute.” 227 F.3d at 1028. The Barnett Court rejected this anti-preference interpretation of the ADA, noting that this argument “fails to recognize what the Act speci-

(...continued)
special circumstances warrant a finding that the accommodation is reasonable under the particular circumstances of the case.

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fies, namely, that preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.” 535 U.S. at 397. Merely following a “neutral rule” did not allow U.S. Airways to claim an “automatic exemption” from the accommodation requirement of the Act. Id. at 398. Instead, U.S. Airways prevailed because its situation satisfied a much narrower, fact-specific exception based on the hardship that could be imposed on an employer utilizing a seniority system. Id. at 405.
The analysis of Barnett’s impact on Humiston-Keeling is further complicated by the fact that we are not the first panel to consider this issue. This court considered Barnett’s relationship to Humiston-Keeling, albeit in an abbreviated fashion and without the benefit of briefing, in Mays v. Principi, 301 F.3d 866 (7th Cir. 2002). In Mays, this court relied on Humiston-Keeling in finding that an employer did not violate the duty of reasonable accommodation in the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., by giving an administrative nursing position to a better qualified applicant, rather than to a disabled employee needing reassignment.2 Mays, 301 F.3d at 871-72. The Mays Court interpreted the recently handed down Barnett decision actually to bolster Humiston-Keeling by equating seniority systems with any other normal method of filling vacancies. Id. at 872.
[Barnett] holds that an employer is not required to give a disabled employee superseniority to enable

2 Instead, the employer placed the disabled employee in a clerical position.

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him to retain his job when a more senior employee invokes an entitlement to it conferred by the employer’s seniority system. If for “more senior” we read “better qualified,” for “seniority system” we read “the employer’s normal method of filling vacancies,” and for “superseniority” we read “a break,” U.S. Airways becomes our case.
Id. at 872 (internal citation omitted).
The EEOC argues, and we agree, that the Mays Court incorrectly asserted that a best-qualified selection policy is essentially the same as a seniority system. In equating the two, the Mays Court so enlarged the narrow, factspecific exception set out in Barnett as to swallow the rule. While employers may prefer to hire the best qualified applicant, the violation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy. To strengthen this critique, the EEOC points out the relative rarity of seniority systems and the distinct challenges of mandating reassignment in a system where employees are already entitled to particular positions based on years of employment.
The Supreme Court has found that accommodation through appointment to a vacant position is reasonable. Absent a showing of undue hardship, an employer must implement such a reassignment policy. The Mays Court understandably erred in suggesting that deviation from a best-qualified selection policy always represented such a hardship.

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In any event, the Barnett framework does not contain categorical exceptions. On remand, the district court must conduct the Barnett analysis. In this case, the district court must first consider (under Barnett step one) if mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation.3 Assuming that the district court finds that mandatory reassignment is ordinarily reasonable, the district must then determine (under Barnett step two) if there are fact-specific considerations particular to United’s employment system that would create an undue hardship and render mandatory reassignment unreasonable.
For its part, United argues that this court should not abandon Humiston-Keeling, in part because the Eighth Circuit explicitly adopted the reasoning of HumistonKeeling in Huber v. Wal-Mart, 486 F.3d 480, 483-84 (8th Cir. 2007), reh’g en banc denied, 493 F.3d 1002 (8th Cir. 2007),

3 We do not believe this step will cause the district court any great difficulty. This is the very accommodation analyzed in Barnett. There, the Supreme Court “assume[d] that normally such a request would be reasonable within the meaning of the statute, were it not for one circumstance, namely, that the assignment would violate the rules of a seniority system.” 535 U.S. at 403. There is no seniority system at issue here. However, we suppose it is possible there is some comparable circumstance of which we are unaware. We note for completeness that if mandatory reassignment is not ordinarily a reasonable accommodation, the EEOC can still prevail if it shows that special factors make mandatory reassignment reasonable in this case.

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cert. granted in part, 552 U.S. 1074 (2007), cert. dismissed, 552 U.S. 1136 (2008). The Eighth Circuit’s wholesale adoption of Humiston-Keeling has little import. The opinion adopts Humiston-Keeling without analysis, much less an analysis of Humiston-Keeling in the context of Barnett.4 Two of our sister Circuits have already determined that the ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship (or run afoul of a collective bargaining agreement): the Tenth in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc) and the D.C. in Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc). We feel that in light of Barnett, pursuant to Circuit Rule 40(e) as suggested under the procedure described above, we must adopt a similar approach.
For the foregoing reasons, the judgment of the district court is REVERSED and we REMAND this matter to the district court for further consideration consistent with this opinion.

4 It is also worth noting that the Supreme Court granted certiorari in Huber, but the parties settled and the Supreme Court dismissed the case. 552 U.S. 1136 (2008).
9-7-12

 
 Case: 1:10-cv-01699 Document #: 88 Filed: 06/08/15 Page 1 of 10 PageID #:409

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

)

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

)

UNITED AIRLINES, INC.,

)

)
____D_e_fe_n_da_n_t._________________ ))

Case No. 10-CV-01699 HDL CONSENT DECREE

Plaintiff U.S. Equal Employment Opportunity Commission ("EEOC") brought this lawsuit under Title I of the Americans with Disabilities Act of 1990, as amended, and Title I of the Civil Rights Act of 1991 to correct alleged unlawful employment practices on the basis of disability and to provide appropriate relief to Charging Parties and similarly-situated disabled employees of United Airlines, Inc. who were adversely affected by such practices.

The EEOC alleged that United Airlines, Inc. ("UAL") unlawfully denied the Charging

Parties Joel Boswell, Margaret Bucaro, Patricia Hernandez, Mary Price, Rosemary Verga, and

similarly situated disabled employees ofUAL, the reasonable accommodation of reassignment to

a vacant position for which they were qualified, and that they needed in order to accommodate

their respective disabilities. UAL denies liability on all claims alleged by the EEOC.

_l\l'f ~

q\l&lnterest of resolving this matter the EEOC and UAL, (hereinafter referred to as "the

'ZS ;'l 'Ill! o

1

Case: 1:10-cv-01699 Document #: 88 Filed: 06/08/15 Page 2 of 10 PageID #:410
Parties") have agreed that the above-captioned lawsuit (the "Lawsuit") should be finally resolved by entry of this Consent Decree and without further contested litigation.
The court has reviewed this Consent Decree in light of the pleadings, the record herein, and the applicable law, and now approves this Consent Decree.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:
I. GENERAL PROVISIONS This Court has jurisdiction over the subject matter and the Parties to this Lawsuit. This
Court will retain jurisdiction over this Decree for all purposes until the expiration of UAL's obligations as set forth herein.
This Consent Decree comprises the full and final resolution of all claims arising out of EEOC Charges filed by Joel Boswell (EEOC Charge #370-2005-02453C), Margaret Bucaro (EEOC Charge #21 0-2005-09744C), Patricia Hernandez (EEOC Charge #550-2006-00439C), Mary Price (EEOC Charge #210-2004-04337C) and Rosemary Verga (EEOC Charge #5502006-00397C) and all ADA claims pled in the First Amended Complaint (Docket No. 6) and constitutes a complete resolution of all claims of discrimination under the ADA that were made or could have been made by the EEOC in the Complaint. This Consent Decree does not, however, resolve any future charges or charges that may be pending with the EEOC other than those referenced in this paragraph.
No waiver, modification or amendment of any provision of this Consent Decree shall be effective unless made in writing and approved by the Parties to this Decree, and any substantive change, modification or amendment of any provision of this Consent Decree shall also require approval by the Court.
2

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This Consent Decree shall not constitute adjudication and/or a finding on the merits of this lawsuit.
This Consent Decree is final and binding. The Parties will each bear their own costs and attorney's fees in this action.
II. GENERAL INJUNCTIVE RELIEF: NON-DISCRIMINATION UAL and its officers, agents, employees, and successors and assigns at the time that this
Decree becomes effective and for the duration of this Decree, are enjoined from engaging in any of the following conduct: (a) unlawfully failing to provide reasonable accommodation to a qualified individual with a disability; or (b) retaliating against any person because he or she: (i) made a request for a reasonable accommodation; (ii) opposes or opposed discriminatory practices made unlawful by the ADA; (iii) files or filed a charge of discrimination or assists, assisted, participates, or participated in the filing of a charge of discrimination; or (iv) assists, assisted, participates or participated in an investigation or proceeding brought under the Federal laws prohibiting discrimination or retaliation. III. SPECIFIC INJUNCTIVE RELIEF
A. POLICIES Within one-hundred twenty (120) days of entry of this Consent Decree, UAL shall revise its policies or, if necessary, adopt new policies with regard to reassignment as a reasonable accommodation for disabled employees. UAL shall provide a copy of its revised policy to the EEOC. The EEOC shall notify UAL within fifteen (IS) days of receipt of the revised policies if it has any concerns about the proposed revisions. UAL's policies are to provide a noncompetitive procedure by which disabled employees who are unable to work in their current
3

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position due to a disability are considered for reassignment to a vacant position as a reasonable accommodation if feasible. The policies will include the following:
I. Written Notice - When an employee is unable to continuing working in his/her current position due to a medical condition and/or is placed on Extended Illness Status (EIS), UAL shall provide timely written notice to the employee regarding the availability of reassignment as a possible reasonable accommodation. This notice will provide information regarding the company's Reasonable Accommodation process concerning reassignment and will include the contact information, including phone numbers and email addresses in order to contact the appropriate Human Resources personnel who can answer any questions related to the accommodation process.
2. Employee Assessment - UAL shall meet with each disabled employee seeking reassignment as an accommodation ("reassignment candidate") to conduct an interactive dialogue regarding the employee's knowledge, skills and abilities at that time, to determine the employee's preferences regarding issues such as job location, acceptance of lower-grade classifications, shift changes and other placement related issues. As part of that discussion, UAL will discuss with the employee and identify the full range of alternative positions the employee may be minimally qualified to perform consistent with their restrictions. UAL will then counsel the employee as to how to monitor and apply for job openings on its online job posting/application system, including using the job alert function to assist in this process.
3. Non-Competitive Reassignment- Reassignment candidates who are deemed minimally qualified for an available lateral or lower level vacant position ("available vacant position"), for which they have applied, will be reassigned to the position. An available
4

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vacant position will not include a position that is filled through the applicable collective bargaining agreement, a promotion, or by another reassignment candidate. 4. Explanation of Rejection - If the reassignment candidate is not placed in the applied for available vacant position, UAL will provide the individual with an explanation of the reason for the non-placement into the position and inform the individual that they should continue to utilize UAL' s online job posting/application. 5. UAL shall disseminate the reassignment policies to all current employees with supervisory and or human resources responsibilities in a manner consistent with its current practices and shall make the policies available on the company's intranet site. B. TRAINING Within one hundred twenty (120) days following the implementation of its revised reassignment policy, all human resources employees of UAL with reasonable accommodation responsibilities will receive training regarding reassignment as a reasonable accommodation. The training shall include specific instruction as to UAL's procedures and policies governing reassignment as a reasonable accommodation and will include example scenarios. The training shall be conducted by a person with established experience regarding the ADA and reassignment as a reasonable accommodation. The duration of the training shall be no less than one hour. Thereafter, and continuing during the duration of this Consent Decree, UAL shall incorporate training regarding ADA reassignment issues in its regular training modules for employees with supervisory and/or HR responsibilities during its biannual training of supervisors. The training should be administered by UAL personnel knowledgeable regarding the ADA and reassignment as a reasonable accommodation. The training will summarize UAL's procedures and policies regarding reasonable accommodation obligations under the ADA .
5

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The copies of the materials to be used for the foregoing HR ADA training shall be provided to the EEOC within sixty (60) days of completion of the respective training. In addition, UAL shall provide certification to the EEOC when all employees with human resources responsibilities have completed such training .
All costs of training shall be borne by UAL. C. POSTING The Notice of the Consent Decree, attached hereto as Exhibit A, shaH be posted within thirty (30) days of entry of this Decree on UAL bulletin boards where other required postings currently exist at all of UAL's hub locations and such postings shall remain for the duration of the Decree. Thereafter, UAL will include the posting in its annual posting audit for all its locations. When brought to its attention, if a Notice becomes defaced, marred, or otherwise altered, UAL will arrange for a new readable copy of the Notice to be posted. In addition, the company shall electronically post Exhibit A on the company intranet. Within sixty (60) days of entry of this Decree, UAL will send the EEOC a certification that the Notice has been posted in accordance with this paragraph. D. REPORTING UAL shall make the following reports relating to reassignment candidate placements -once at 15 months and once at 28 months -- following the date on which this Consent Decree is approved and entered by the Court: I. UAL shall prepare a report that identifies every employee who has a physical or mental impairment and who is unable to continue working in his/her regular position and who has applied for and is not selected for a vacant available position as part of the reassignment reasonable accommodation process described in section III, above. The
6

Case: 1:10-cv-01699 Document #: 88 Filed: 06/08/15 Page 7 of 10 PageID #:415
report will contain the following information: a. Name of individual b. Home Address, phone numbers and home email address of individual, if available, c. Title of applied for available vacant position d. Explanation as to why the individual was not placed in the applied for available vacant position.
E. MONETARY RELIEF In settlement of the EEOC's claims in this lawsuit, UAL shall pay relief to claimants in the total gross amount of $1,040,000.00 hereinafter "Settlement Sum." The identity of the claimants shall be determined solely by the EEOC. The EEOC will inform UAL how the Settlement Sum shall be apportioned among the claimants no later than ninety (90) days after entry of this Consent Decree. The EEOC will also provide the addresses to which the settlement checks shall be sent and executed individual releases from each claimant for whom settlement checks are requested. As a condition of any payments to the claimants, EEOC will provide to UAL the claimant information referred to in the paragraph above, the executed individual releases as well as current completed IRS Forms W-4 and W-9 for all claimants at least 30 days prior to the issuance of any settlement check. The payments shall be issued on checks drafted in each of the claimant's names. UAL will mail the checks directly to the claimants at the addresses provided by the EEOC. All settlement payments will be subject to legal withholding as applicable. UAL will issue Forms W-2 and 1099 at the appropriate time. Each of the claimants designated by the EEOC to receive any portion of this settlement sum, shall be required to sign a full release and
7

Case: 1:10-cv-01699 Document #: 88 Filed: 06/08/15 Page 8 of 10 PageID #:416
waiver of the ADA claims that were or could have been brought in this case, a copy of which is attached hereto.
UAL will mail the photocopies of the checks and related correspondence to the EEOC's counsel of record, Linda Ordonio-Dixon, at 450 Golden Gate Ave., 5th Floor West, P.O. Box 36025, San Francisco, CA 94102-3661 simultaneously with the mailing of the checks.
Neither the EEOC nor UAL make any representations, or assume any responsibility for any tax liability, assessments, interest, penalties and/or costs that the claimants may or may not incur on such payments under local, state or federal law. IV. RETENTION OF JURISDICTION AND EXPIRATION OF CONSENT DECREE
This Consent Decree shall terminate 30 months from the date of entry by the Court, unless the EEOC petitions this Court for an extension of the Decree because of non-compliance by UAL. If the EEOC determines that UAL has not complied with the Consent Decree, the EEOC will provide written notification of the alleged breach and will not petition the Court for enforcement sooner than thirty (30) days after providing written notification. The thirty-day period following written notice shall be used by the parties for good faith efforts to resolve the issue. If the EEOC petitions the Court and the Court finds UAL to be in substantial violation of the terms of the Decree, the Court may extend this Consent Decree.
Except for the Court's retention of jurisdiction solely to enforce this Consent Decree as provided in the preceding paragraph, one year after the entry of this Consent Decree, this lawsuit will be dismissed with prejudice, effective with Court's approval of this Consent Decree, and the parties will execute a stipulated dismissal with prejudice to that effect. UAL will be deemed to have complied substantially if the Court has not made any findings or orders during the term of the Decree that UAL has failed to comply with any of the terms of this Decree. This Consent
8

Case: 1:10-cv-01699 Document #: 88 Filed: 06/08/15 Page 9 of 10 PageID #:417 Decree will automatically expire without further Court Order. IT IS SO ORDERED:
United States District Court Judge
RARRYD. LEINENWEBER
9

----------------------------------.
Case: 1:10-cv-01699 Document #: 88 Filed: 06/08/15 Page 10 of 10 PageID #:418
NOTICE TO ALL EMPLOYEES
This notice is being posted pursuant to a Consent Decree issued by the Federal Court in a lawsuit brought against United Airlines by the Equal Employment Opportunity Commission. [Civil Action 10-CV-01699 HDL, United States District Court of Illinois- Chicago.]
The EEOC alleged that United Airlines, Inc. ("UAL") unlawfully denied disabled employees ofUAL the reasonable accommodation of reassignment to a vacant position for which they were qualified, and that they needed in order to accommodate their respective disabilities. UAL denied liability on all claims alleged by the EEOC.
Under the Consent Decree, United Airlines is prohibited from discriminating against any disabled employee who may need job reassignment to a vacant position for which they are qualified in order to accommodate their disability.
Should you have any questions or complaints of discrimination, you can follow the complaint procedures established by the company, or you can contact the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal agency that enforces federal antidiscrimination in employment laws such as the Americans with Disabilities Act, which prohibits disability discrimination. The EEOC charges no fees for its services, and has employees that speak languages other than English, including Spanish.
For information about the EEOC, including the location nearest to you contact: Website: www.eeoc.gov Phone number: (800) 669-4000 Fax (415) 625-5609 TDD: (515) 625-5610 Email: info@ask.eeoc.gov THIS POSTING IS AN OFFICIAL NOTICE AND BY ORDER OF THE COURT MUST NOT BE DEFACED OR OBSCURED.
10

 
 Case: 1:10-cv-01699 As of: 03/21/2019 03:57 PM CDT 1 of 8
APPEAL,INTRADIST−TRANSF,MASON,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.2.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:10−cv−01699

Equal Employment Opportunity Commission v. United Air Lines, Inc. Assigned to: Honorable Harry D. Leinenweber Case in other court: 11−01774
California Northern, 4:09−cv−02469 Cause: 28:451 Employment Discrimination
Plaintiff

Date Filed: 03/16/2010 Date Terminated: 02/03/2011 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Equal Employment Opportunity Commission

represented by Jonathan T. Peck U.S. EEOC 350 Embarcadero Street Suite 500 San Francisco, CA 94105−1687 415/625−5600 Email: jonathan.peck@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Robert Tamayo U.S. EEOC 350 Embarcadero Street Suite 500 San Francisco, CA 94105−1687 415−625−5645 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Susan Ordonio−Dixon U.S. Equal Employment Opportunity Commission The Phillip Burton Federal Building 450 Golden Gate Ave., 5th Floor West PO Box 36025 San Francisco, CA 94102 (415) 522−3070 Email: linda.ordonio−dixon@eeoc.gov PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant United Air Lines, Inc.

represented by Charis A. Runnels Morgan Lewis & Bockius, LLP 77 W. Wacker Drive 6th Floor Chicago, IL 60601 (312) 324−1124 Email: crunnels@morganlewis.com TERMINATED: 07/23/2014 LEAD ATTORNEY
Andrew L. Scroggins Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603

Case: 1:10-cv-01699 As of: 03/21/2019 03:57 PM CDT 2 of 8
312−460−5275 Email: ascroggins@seyfarth.com TERMINATED: 04/14/2015
Daryl Steven Landy Morgan Lewis & Bockius LLP 2 Palo Alto Square 3000 El Camino Real Suite 700 Palo Alto, CA 94306 (650) 843−7561 ATTORNEY TO BE NOTICED
Nina G. Stillman Morgan Lewis Bockius 77 W. Wacker Drive 6th Floor Chicago, IL 60601 (312)324−1000 Email: nstillman@morganlewis.com ATTORNEY TO BE NOTICED

Date Filed 06/03/2009
06/03/2009 06/04/2009 06/04/2009 06/09/2009
06/09/2009
08/07/2009 08/17/2009 08/21/2009

# Docket Text
1 COMPLAINT against United Air Lines, Inc. Demand for Jury Trial. Filed by Equal Employment Opportunity Commission. (far, COURT STAFF) (Filed on 6/3/2009) Modified on 6/5/2009 (far, COURT STAFF). (far, COURT STAFF). (Additional attachment(s) added on 6/16/2009: # 1 Complaint) (far, COURT STAFF). [Transferred from California Northern on 3/17/2010.] (Entered: 06/05/2009)
CASE DESIGNATED for Electronic Filing. (far, COURT STAFF) (Filed on 6/3/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 06/05/2009)
2 ADR SCHEDULING ORDER: Case Management Statement due by 9/3/2009. Case Management Conference set for 9/10/2009 02:30 PM. (Attachments: # 1 Standing Order)(far, COURT STAFF) (Filed on 6/4/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 06/05/2009)
3 Summons Issued as to United Air Lines, Inc. (far, COURT STAFF) (Filed on 6/4/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 06/05/2009)
4 *** FILED IN ERROR. PLEASE DISREGARD. *** COMPLAINT against Equal Employment Opportunity Commission (Filing fee $ 350.). Filed byEqual Employment Opportunity Commission. (Ordonio−Dixon, Linda) (Filed on 6/9/2009) Modified on 6/9/2009 (feriab, COURT STAFF). [Transferred from California Northern on 3/17/2010.] (Entered: 06/09/2009)
5 *** FILED IN ERROR. PLEASE DISREGARD. *** COMPLAINT [CORRECTION OF DOCKET # 4 . against United Air Lines, Inc. (Filing fee $ 350.). Filed byEqual Employment Opportunity Commission. (Ordonio−Dixon, Linda) (Filed on 6/9/2009) Modified on 6/9/2009 (feriab, COURT STAFF). [Transferred from California Northern on 3/17/2010.] (Entered: 06/09/2009)
6 AMENDED COMPLAINT [FIRST] against United Air Lines, Inc.. Filed byEqual Employment Opportunity Commission. (Ordonio−Dixon, Linda) (Filed on 8/7/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/07/2009)
7 STIPULATION and [Proposed] Order to Continue Case Management Conference and ADR Deadlines by United Air Lines, Inc.. (Landy, Daryl) (Filed on 8/17/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/17/2009)
8 Defendant United Air Lines, Inc.'s ANSWER to Amended Complaint (First Amended) byUnited Air Lines, Inc.. (Landy, Daryl) (Filed on 8/21/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/21/2009)

Case: 1:10-cv-01699 As of: 03/21/2019 03:57 PM CDT 3 of 8

08/21/2009
08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/25/2009
08/25/2009 09/04/2009

9 MOTION to Transfer Case (Notice of Motion to Transfer, Motion to Transfer and Memorandum of Points and Authorities in Support of Motion to Transfer Venue filed by United Air Lines, Inc.. Motion Hearing set for 10/21/2009 09:00 AM in Courtroom 5, 17th Floor, San Francisco. (Attachments: # 1 Exhibit A)(Landy, Daryl) (Filed on 8/21/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/21/2009)
10 Declaration of Diane Gist in Support of Motion to Transfer Venue filed byUnited Air Lines, Inc.. (Related document(s) 9 ) (Landy, Daryl) (Filed on 8/21/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/21/2009)
11 Declaration of Megan Detzner in Support of Motion to Transfer Venue filed byUnited Air Lines, Inc.. (Related document(s) 9 ) (Landy, Daryl) (Filed on 8/21/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/21/2009)
12 Declaration of Carlos J. Rivera in Support of Motion to Transfer Venue filed byUnited Air Lines, Inc.. (Related document(s) 9 ) (Landy, Daryl) (Filed on 8/21/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/21/2009)
13 Declaration of Danielle Hendrickson in Support of Motion to Transfer Venue filed byUnited Air Lines, Inc.. (Related document(s) 9 ) (Landy, Daryl) (Filed on 8/21/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/21/2009)
14 Proposed Order Granting Defendant United Air Lines, Inc.'s Motion to Transfer Venue by United Air Lines, Inc.. (Landy, Daryl) (Filed on 8/21/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/21/2009)
15 STIPULATION AND ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE AND ADR DEADLINES re 7 Stipulation filed by United Air Lines, Inc. Signed by Judge Phyllis J. Hamilton on 8/25/09. (nah, COURT STAFF) (Filed on 8/25/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/25/2009)
Set Deadlines/Hearings: Joint Case Management Statement due by 12/31/2009. Case Management Conference set for 1/7/2010 02:30 PM. (nah, COURT STAFF) (Filed on 8/25/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 08/25/2009)
16 CLERKS NOTICE

Effective September 14, 2009, Judge Phyllis Hamilton's courtroom and chambers will be located in the Oakland Courthouse, Courtroom #3, 3rd floor, 1301 Clay Street, Oakland, California 94612.

On or after September 14, 2009, all filings for matters pending on Judge Hamiltons docket, all court appearances, and all deliveries of chambers' copies of documents must be made at the Oakland Courthouse.

The days and times for law and motion calendars and all currently scheduled proceedings remain unchanged.

Please note that all of Judge Hamilton's case files will be moved to the Oakland Courthouse, therefore all cases numbers assigned to her will be changed slightly to reflect the correct venue. Previously, all case numbers started with "3:" to indicate the San Francisco office (Example: 3:09−cv−12345−PJH). As of September 14th, 2009, all of Judge Hamilton's case files will begin with "4:" to indicate the Oakland office, but everything else will stay the same (Example: 4:09−cv−12345−PJH). When e−filing, using the short case number format will always avoid problems when searching for the correct case: 09−12345 (YY−NNNNN).

For information on the Oakland Courthouse's accessibility, parking, driving directions, public transit, hotels and other helpful links, please visit our website: http://www.cand.uscourts.gov, click on "Court Information" on the right hand side of our main page, then select the Oakland link under "Address and Jurisdiction". The main telephone number for the Oakland Division is 510 637−3530.

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09/10/2009 09/30/2009
10/07/2009 10/16/2009 10/19/2009 10/23/2009
10/23/2009 11/02/2009 11/02/2009 11/09/2009 12/02/2009 12/03/2009 12/04/2009 12/14/2009

(kc, COURT STAFF) (Filed on 9/4/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 09/04/2009)
17 NOTICE of Appearance by Linda Susan Ordonio−Dixon (Ordonio−Dixon, Linda) (Filed on 9/10/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 09/10/2009)
18 Memorandum in Opposition to re 9 Motion to Transfer filed byEqual Employment Opportunity Commission. (Attachments: # 1 Exhibit A−E, # 2 Affidavit of Bryne Moore, # 3 Affidavit of Linda Dixon)(Ordonio−Dixon, Linda) (Filed on 9/30/2009) Modified on 10/1/2009 (vlk, COURT STAFF). [Transferred from California Northern on 3/17/2010.] (Entered: 09/30/2009)
19 Reply in Support of re 9 Motion to Transfer Venue filed byUnited Air Lines, Inc.. (Landy, Daryl) (Filed on 10/7/2009) Modified on 10/8/2009 (vlk, COURT STAFF). [Transferred from California Northern on 3/17/2010.] (Entered: 10/07/2009)
20 Notice and ORDER Continuing Hearing on re 9 Motion to Transfer. Signed by Judge Hamilton on 10/16/2009. (pjhlc1, COURT STAFF) (Filed on 10/16/2009) Modified on 10/19/2009 (vlk, COURT STAFF). [Transferred from California Northern on 3/17/2010.] (Entered: 10/16/2009)
21 STIPULATION to Continue Hearing Date to December 2, 2009; [Proposed] Order by Equal Employment Opportunity Commission. (Ordonio−Dixon, Linda) (Filed on 10/19/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 10/19/2009)
22 STIPULATION AND ORDER TO CONTINUE HEARING DATE ON DEFENDANT'S MOTION TO TRANSFER TO DECEMBER 2, 2009 re 21 Stipulation filed by Equal Employment Opportunity Commission. Signed by Judge Phyllis J. Hamilton on 10/23/09. (nah, COURT STAFF) (Filed on 10/23/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 10/23/2009)
Set/Reset Deadlines as to Defendant's Motion to Transfer. Motion Hearing set for 12/2/2009 09:00 AM in Courtroom 3, 3rd Floor, Oakland. (nah, COURT STAFF) (Filed on 10/23/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 10/23/2009)
23 MOTION of Nina G. Stillman for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 44611004363.) filed by United Air Lines, Inc.. (vlk, COURT STAFF) (Filed on 11/2/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 11/03/2009)
24 Proposed Order re 23 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 44611004363.) by United Air Lines, Inc.. (vlk, COURT STAFF) (Filed on 11/2/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 11/03/2009)
25 ORDER by Judge Phyllis J. Hamilton granting 23 Motion for Pro Hac Vice for Nina G. Stillman. (nah, COURT STAFF) (Filed on 11/9/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 11/09/2009)
26 Minute Entry: Motion Hearing held on 12/2/2009 before Phyllis J. Hamilton (Date Filed: 12/2/2009). (Court Reporter Raynee Mercado.) (nah, COURT STAFF) (Date Filed: 12/2/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 12/02/2009)
27 ORDER by Judge Phyllis J. Hamilton granting 9 Motion to Transfer Case (nah, COURT STAFF) (Filed on 12/3/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 12/03/2009)
Case electronically transferred to USDC−Northern District of Illinois, case number 1:09−cv−07565. (vlk, COURT STAFF) (Filed on 12/4/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 12/08/2009)
28 Transcript of Proceedings held on December 2, 2009, before Judge Phyllis J. Hamilton. Court Reporter Raynee H. Mercado, Telephone number 510−502−6175, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial

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12/17/2009 01/04/2010
01/05/2010
01/05/2010 01/06/2010
01/07/2010 01/07/2010 03/12/2010 03/15/2010 03/17/2010 03/17/2010 03/25/2010

Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 1/4/2010. Redacted Transcript Deadline set for 1/11/2010. Release of Transcript Restriction set for 3/11/2010. (rhm, ) (Filed on 12/14/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 12/14/2009)
29 USCA Case Number 09−73958 Ninth Circuit Court of Appeals for Writ of Mandamus (kk, COURT STAFF) (Filed on 12/17/2009) [Transferred from California Northern on 3/17/2010.] (Entered: 12/17/2009)
30 Case retransferred from USDC Northern District of Illinois(1:09−cv−7565). Documents 29 − 34 and docket attached. (Attachments: # 1 12/9/2009 Minute Entry; Document 29, # 2 Attorney Appearance; Document 30, # 3 Attorney Appearance; Document 31, # 4 Motion to Transfer Case; Document 32, # 5 Notice of Motion; Document 33, # 6 12/17/2009 Minute Entry; Document 34, # 7 USDC Northern District of Illinois Docket) (vlk, COURT STAFF) (Filed on 1/4/2010) Modified on 1/6/2010 (vlk, COURT STAFF). [Transferred from California Northern on 3/17/2010.] (Entered: 01/04/2010)
31 MOTION to Shorten Time FOR THE HEARING OF PLAINTIFF EEOCS MOTION FOR STAY OF TRANSFER PENDING APPEAL filed by Equal Employment Opportunity Commission. Motion Hearing set for 1/6/2010 09:00 AM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Affidavit of Dixon)(Ordonio−Dixon, Linda) (Filed on 1/5/2010) [Transferred from California Northern on 3/17/2010.] (Entered: 01/05/2010)
32 MOTION to Stay Transfer Pending Appeal filed by Equal Employment Opportunity Commission. Motion Hearing set for 1/6/2010 09:00 AM in Courtroom 3, 3rd Floor, Oakland. (Ordonio−Dixon, Linda) (Filed on 1/5/2010) [Transferred from California Northern on 3/17/2010.] (Entered: 01/05/2010)
35 Minute Entry: Motion Hearing held on 1/6/2010 before Phyllis J. Hamilton (Date Filed: 1/6/2010) re 32 MOTION to Stay Transfer Pending Appeal filed by Equal Employment Opportunity Commission, 31 MOTION to Shorten Time FOR THE HEARING OF PLAINTIFF EEOCS MOTION FOR STAY OF TRANSFER PENDING APPEAL filed by Equal Employment Opportunity Commission. (Court Reporter Diane Skillman.) (nah, COURT STAFF) (Date Filed: 1/6/2010) [Transferred from California Northern on 3/17/2010.] (Entered: 01/08/2010)
33 Proposed Order re 32 MOTION to Stay Transfer Pending Appeal by Equal Employment Opportunity Commission. (Ordonio−Dixon, Linda) (Filed on 1/7/2010) [Transferred from California Northern on 3/17/2010.] (Entered: 01/07/2010)
34 ORDER GRANTING A STAY OF TRANSFER by Judge Phyllis J. Hamilton granting 32 Motion to Stay (nah, COURT STAFF) (Filed on 1/7/2010) [Transferred from California Northern on 3/17/2010.] (Entered: 01/07/2010)
37 ORDER of USCA denying petition for writ of mandamus (vlk, COURT STAFF) (Filed on 3/12/2010) [Transferred from California Northern on 3/17/2010.] (Entered: 03/16/2010)
36 ORDER VACATING STAY. Signed by Judge Phyllis J. Hamilton on 3/15/10. (nah, COURT STAFF) (Filed on 3/15/2010) [Transferred from California Northern on 3/17/2010.] (Entered: 03/15/2010)
38 RECEIVED from California Northern; Case Number 4:09−cv−02469. (lcw) (Entered: 03/17/2010)
MAILED Rule 83 transfer in letter to all counsel of record. (lcw, ) (Entered: 03/17/2010)
39 ATTORNEY Appearance for Defendant United Air Lines, Inc. by Charis A. Runnels (Runnels, Charis) (Entered: 03/25/2010)

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04/30/2010 05/24/2010 05/24/2010 06/08/2010 07/20/2010 07/22/2010 09/15/2010 09/28/2010 10/13/2010 10/18/2010 10/21/2010
10/26/2010 11/22/2010 11/22/2010 12/14/2010 01/03/2011 02/03/2011
02/03/2011 03/23/2011

40 MOTION for Leave to Appear Pro Hac Vice (Ordonio−dixon, Linda) (Entered: 04/30/2010)
41 MINUTE entry before Honorable Harry D. Leinenweber: Linda Susan Ordonio−Dixon granted leave to appear pro hac vice on behalf of the plaintiff.Mailed notice (wp, ) (Entered: 05/24/2010)
42 MINUTE entry before Honorable Harry D. Leinenweber: Status hearing set for 6/30/2010 at 09:00 AM.Mailed notice (wp, ) (Entered: 05/24/2010)
43 MINUTE entry before Honorable Harry D. Leinenweber: Status hearing reset for 7/22/2010 at 09:00 AM.Mailed notice (wp, ) (Entered: 06/08/2010)
44 MINUTE entry before Honorable Harry D. Leinenweber: Status hearing by telephone set for 7/22/2010 at 08:45 AM.Mailed notice (wp, ) (Entered: 07/20/2010)
45 MINUTE entry before Honorable Harry D. Leinenweber:Status hearing by telephone held on 7/22/2010. Status hearing set for 9/15/2010 at 09:00 AM.Mailed notice (wp, ) (Entered: 07/27/2010)
46 MINUTE entry before Honorable Harry D. Leinenweber:Status hearing held on 9/15/2010. Status hearing set for 9/29/2010 at 09:00 AM.Mailed notice (wp, ) (Entered: 09/27/2010)
47 MINUTE entry before Honorable Harry D. Leinenweber: Status hearing reset for 10/14/2010 at 09:00 AM. by agreement.Mailed notice (wp, ) (Entered: 09/28/2010)
48 MINUTE entry before Honorable Harry D. Leinenweber: Status hearing reset for 10/19/2010 at 09:00 AM.Mailed notice (wp, ) (Entered: 10/13/2010)
49 MINUTE entry before Honorable Harry D. Leinenweber: Status hearing reset for 10/21/2010 at 08:45 AM. by telephone.Mailed notice (wp, ) (Entered: 10/18/2010)
50 MINUTE entry before Honorable Harry D. Leinenweber:Status hearing held on 10/21/2010 by telephone. Plaintiff to file its amended complaint by 10/26/2010. Defendant to file its motion to dismiss with memorandum in support by 11/23/2010. Plaintiff's response to be filed by 12/14/2010. Defendant's reply brief to be filed by 1/4/2011. The Court will rule orally on 2/3/2011 at 09:00 AM.Mailed notice (wp, ) (Entered: 10/22/2010)
51 SECOND AMENDED complaint by Equal Employment Opportunity Commission against Equal Employment Opportunity Commission (Attachments: # 1 Exhibit A)(Ordonio−Dixon, Linda) (Entered: 10/26/2010)
52 MOTION by Defendant United Air Lines, Inc. to dismiss Second Amended Complaint (Runnels, Charis) (Entered: 11/22/2010)
53 MEMORANDUM by United Air Lines, Inc. in support of motion to dismiss 52 Second Amended Complaint (Attachments: # 1 Exhibit A)(Runnels, Charis) (Entered: 11/22/2010)
54 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant United Air Lines, Inc. to dismiss Second Amended Complaint 52 (Attachments: # 1 Exhibit)(Ordonio−Dixon, Linda) (Entered: 12/14/2010)
55 REPLY by Defendant United Air Lines, Inc. to motion to dismiss 52 (Runnels, Charis) (Entered: 01/03/2011)
56 MINUTE entry before Honorable Harry D. Leinenweber:For the reasons stated in open court, defendant's motion to dismiss plaintiff's second amended complaint for failure to state a claim 52 is granted. Civil case terminated. Mailed notice (wp, ) (Entered: 02/07/2011)
57 ENTERED JUDGMENT on 2/3/2011:Mailed notice(wp, ) (Entered: 02/07/2011)
58 TRANSCRIPT OF PROCEEDINGS held on 02/03/11 before the Honorable Harry D. Leinenweber. Court Reporter Contact Information: Gayle A. McGuigan, CSR, RMR, CRR, 312.435.6047, Gayle_McGuigan@ilnd.uscourt.gov.

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04/01/2011 04/01/2011 04/01/2011 04/01/2011 04/04/2011 04/21/2011 09/19/2012
12/07/2012 07/18/2013 07/18/2013
07/18/2013
07/18/2013 05/06/2014 05/07/2014 05/22/2014

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 4/13/2011. Redacted Transcript Deadline set for 4/25/2011. Release of Transcript Restriction set for 6/21/2011. (McGuigan, Gale) (Entered: 03/23/2011)
59 NOTICE of appeal by Equal Employment Opportunity Commission regarding orders 57 (Ordonio−Dixon, Linda) (Entered: 04/01/2011)
60 DOCKETING Statement by Equal Employment Opportunity Commission regarding notice of appeal 59 (Ordonio−Dixon, Linda) (Entered: 04/01/2011)
61 NOTICE of Appeal Due letter sent to counsel of record (dj, ) (Entered: 04/01/2011)
62 TRANSMITTED to the 7th Circuit the short record on notice of appeal 59 . Notified counsel (dj, ) (Entered: 04/01/2011)
63 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 59 ; USCA Case No. 11−1774. (ea, ) (Entered: 04/05/2011)
64 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 59 (USCA no. 11−1774).(dj, ) (Entered: 04/21/2011)
65 ORDER dated 9/18/12 from the Seventh Circuit regarding notice of appeal 59 ; Appellate case no. : 11−1774. Upon consideration of the Unopposed motion of United Air Lines, Inc. to stay the mandate pending the filing of a petition of a write of certiorari, filed on September 17, 2012, by counsel for the appellee, It Is Ordered that the motion is Granted. the mandate of this court is Stayed until December 6, 2012. If, within the period of the stay, a petition for certiorari is filed and appellee so notifies this court in writing, then the stay shall continue until the Supreme Court's final disposition. See Fed. R.App.P 41(d)(2)(B). The parties are reminded that this order does not extend the deadline for petitioning for certiorari. See Sup. Ct. R. 13. (ea, ) (Entered: 09/20/2012)
66 ORDER dated 12/7/12 from the Seventh Circuit regarding notice of appeal 59 ; Appellate case no. : 11−1774. (ea, ) (Entered: 12/07/2012)
67 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 11−1774. (vcf, ) (Entered: 07/19/2013)
68 MANDATE of USCA dated 9/7/2012 regarding notice of appeal 59 ; USCA No. 11−1774. The judgment of the District Court is REVERSED, with costs, and this matter is REMANDED to the district court for further consideration consistent with the opinion of this court. The above in accordance with the decision of this court entered on this date. (vcf, ) (Entered: 07/19/2013)
69 OPINION from the USCA for the 7th Circuit; Argued 10/20/2011; Decided 9/7/2012 in USCA case no. 11−1774. For the foregoing reasons, the judgment of the district court is Reversed and we Remand this matter to the district court for further consideration consistent with this opinion. (vcf, ) (Entered: 07/19/2013)
70 BILL of Costs. (vcf, ) (Entered: 07/19/2013)
71 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing set for 5/22/2014 at 09:00 AM.Mailed notice (wp, ) (Entered: 05/06/2014)
72 WITHDRAWING Charis A. Runnels as counsel for Defendant United Air Lines, Inc. and substituting Andrew Lylburn Scroggins as counsel of record (Scroggins, Andrew) (Entered: 05/07/2014)
73 MINUTE entry before the Honorable Harry D. Leinenweber:Status hearing held on 5/22/2014. Status hearing set for 7/23/2014 at 09:00 AM.Mailed notice (wp, ) (Entered: 05/22/2014)

Case: 1:10-cv-01699 As of: 03/21/2019 03:57 PM CDT 8 of 8

07/23/2014
09/30/2014 09/30/2014 09/30/2014 10/14/2014 01/08/2015 03/23/2015 03/23/2015 03/23/2015 04/06/2015 04/14/2015 04/28/2015 06/08/2015 06/08/2015 06/08/2015

74 MINUTE entry before the Honorable Harry D. Leinenweber:Status hearing held on 7/23/2014. Charis A. Runnels is granted leave to withdraw her appearance as attorney of record for Defendant, United Air Lines, Inc. and Andrew L. Scroggins of Morgan, Lewis & Buckius LLP granted leave to enter his appearance as counsel for United. Nina G. Stillman of Morgan, Lewis & Bockius LLP remains lead counsel for United. Status hearing set for 9/30/2014 at 09:00 AM.Mailed notice (wp, ) (Entered: 07/23/2014)
75 MINUTE entry before the Honorable Harry D. Leinenweber:Status hearing held on 9/30/2014. Discovery cut−off extended to 12/30/2014. Status hearing set for 1/8/2014 at 09:00 AM.Mailed notice (wp, ) (Entered: 09/30/2014)
76 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing reset for 1/8/2015 at 09:00 AM.Mailed notice (wp, ) (Entered: 09/30/2014)
77 MINUTE entry before the Honorable Harry D. Leinenweber:The discovery cut−off date of 12/30/2014 set in the court's minute entry [#75] is hereby vacated, having been entered in error.Mailed notice (wp, ) (Entered: 09/30/2014)
78 NOTICE of Unavailability of counsel, for Plaintiff Equal Employment Opportunity Commission by Linda Susan Ordonio−Dixon (Ordonio−Dixon, Linda)(Docket Text Modified by Clerks Office.) Modified on 10/15/2014 (ea, ). (Entered: 10/14/2014)
79 MINUTE entry before the Honorable Harry D. Leinenweber:Status hearing held on 1/8/2015. Status hearing set for 3/31/2015 at 09:00 AM.Mailed notice (wp, ) (Entered: 01/08/2015)
80 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing reset for 4/29/2015 at 09:00 AM.Mailed notice (wp, ) (Entered: 03/23/2015)
81 MOTION by counsel for Defendant United Air Lines, Inc. to withdraw as attorney (Scroggins, Andrew) (Entered: 03/23/2015)
82 NOTICE of Motion by Andrew L. Scroggins for presentment of motion to withdraw as attorney 81 before Honorable Harry D. Leinenweber on 4/14/2015 at 09:30 AM. (Scroggins, Andrew) (Entered: 03/23/2015)
83 RESPONSE by Equal Employment Opportunity Commission to MOTION by counsel for Defendant United Air Lines, Inc. to withdraw as attorney 81 − NON−OPPOSITION (Ordonio−Dixon, Linda) (Entered: 04/06/2015)
84 MINUTE entry before the Honorable Harry D. Leinenweber:Andrew L. Scroggins Motion to withdraw as attorney for defendant 81 is granted.Mailed notice (wp, ) (Entered: 04/16/2015)
85 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing reset for 6/9/2015 at 09:00 AM.Mailed notice (wp, ) (Entered: 04/28/2015)
86 CONSENT DECREE [PROPOSED] by Equal Employment Opportunity Commission (Ordonio−Dixon, Linda) (Entered: 06/08/2015)
87 MINUTE entry before the Honorable Harry D. Leinenweber:Status hearing stricken.Mailed notice (wp, ) (Entered: 06/08/2015)
88 CONSENT Decree Signed by the Honorable Harry D. Leinenweber on 6/8/2015.(mr, ) (Entered: 06/11/2015)

 
 E.E.O.C. v. United Airlines, Inc., 673 F.3d 543 (2012)

673 F.3d 543 United States Court of Appeals,
Seventh Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant, v.
UNITED AIRLINES, INC., Defendant–Appellee.
No. 11–1774. | Argued Oct. 20, 2011. | Decided March 7, 2012.
Synopsis Background: Equal Employment Opportunity Commission (EEOC) sued employer, claiming that a policy under which employees who could no longer perform their positions due to a disability were not automatically placed into a vacant position violated the Americans with Disabilities Act (ADA). The United States District Court for the Northern District of Illinois, Harry D. Leinenweber, J., dismissed, and EEOC appealed.
[Holding:] The Court of Appeals, Cudahy, Circuit Judge, held that ADA does not require employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified.
Affirmed
Attorneys and Law Firms
*543 Barbara L. Sloan (argued), Attorney, Equal Employment Opportunity Commission, Washington, DC, for Plaintiff–Appellant.
Nina Gidden Stillman (argued), Attorney, Morgan, Lewis & Bockius LLP, Chicago, IL, for Defendant–Appellee.
Before CUDAHY, KANNE, and SYKES, Circuit Judges.
Opinion
CUDAHY, Circuit Judge.
[1] In this case, the Equal Employment Opportunity

Commission (EEOC) asks this court to change its interpretation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). The EEOC contends that the ADA requires employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified. However, this court has already held, in EEOC v. Humiston–Keeling, 227 F.3d 1024, 1029 (7th Cir.2000), that the ADA has no such requirement. The EEOC argues that the Supreme Court’s ruling in US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), undermines Humiston–Keeling. Several courts in this circuit have relied on Humiston–Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of Humiston–Keeling’s continued vitality. In accordance with this circuit’s case law, we affirm the district court’s holding that the ADA does not mandate reassignment. However, this circuit might reconsider the impact of Barnett on Humiston–Keeling.
In 2003, United Airlines set out Reasonable Accommodation Guidelines that address *544 accommodating employees who, because of disability, can no longer do the essential functions of their current jobs even with reasonable accommodation. While the guidelines note that “transfer ... [to] an equivalent or lower-level vacant position” may be a reasonable accommodation, the guidelines specify that the transfer process is competitive. Accordingly, an employee will not be automatically placed into a vacant position. Instead, employees needing accommodation will be given preference, meaning they can submit an unlimited number of transfer applications, they are guaranteed an interview and they will receive priority consideration over a similarly qualified applicant.
The EEOC filed suit in San Francisco, alleging that United’s policy violates the ADA. The district court granted United’s motion to transfer the case to Illinois. The district court granted United’s motion to dismiss the suit under Rule 12(b)(6). The district court noted that binding precedent, EEOC v. Humiston–Keeling, 227 F.3d 1024, 1028–29 (7th Cir.2000) held that a competitive transfer policy does not violate the ADA. The court also rejected the EEOC’s contention that the Supreme Court’s decision in US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) undermined Humiston–Keeling.
This court reviews a dismissal under Rule 12(b)(6) de novo. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008). A complaint must provide “sufficient factual
1

E.E.O.C. v. United Airlines, Inc., 673 F.3d 543 (2012)
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This court construes the complaint “in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [the EEOC’s] favor.” Tamayo, 526 F.3d at 1081 (citing Killingsworth v. HSBC Bank Nev., 507 F.3d 614, 618 (7th Cir.2007)). We have jurisdiction to hear EEOC’s appeal under 28 U.S.C. § 1291.
The district court noted that Humiston–Keeling is directly on point and has not been overruled by the Seventh Circuit. The district court is correct on both points. Humiston–Keeling involved a worker, Houser, who could no longer perform her conveyor job due to an injured arm. 227 F.3d at 1026. After taking a temporary greeter position, Houser applied for vacant clerical positions within the company. However she did not get any of these jobs. Id. The EEOC brought suit, arguing the “reassignment form of reasonable accommodation ... require[s] that the disabled person be advanced over a more qualified nondisabled person, provided only that the disabled person is at least minimally qualified to do the job, unless the employer can show undue hardship.” Id. at 1027 (internal quotation marks omitted). This court rejected that assertion, holding 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.” Id. at 1029.
[2] As there is a controlling case directly on point, the EEOC must convince this court to overrule its prior decision. This is no easy task. The doctrine of stare decisis holds that “the mere existence of certain decisions becomes a reason for adhering to their holdings in subsequent cases.” Tate v. Showboat Marina Casino P’ship, 431 F.3d 580, 583 (7th Cir.2005). The EEOC’s interpretation may in fact be a more supportable interpretation of the ADA, and here we think that this is likely. *545 However, the EEOC must do more to force an abandonment of stare decisis. In order to provide this court with a compelling reason to deviate from precedent, the EEOC must show that Humiston–Keeling is inconsistent with an on-point Supreme Court decision or is otherwise incompatible with a change in statutory law.
The EEOC invites this court to overturn Humiston–Keeling, arguing that Barnett undercuts the reasoning of Humiston–Keeling. In Barnett, the Supreme Court considered reassignment under the ADA in the

context of a seniority system. 535 U.S. at 393–95, 122 S.Ct. 1516. Robert Barnett injured his back while a cargo-handler for US Airways. He invoked seniority and transferred to a mailroom position. Id. at 394, 122 S.Ct. 1516. Later, at least two employees senior to Barnett intended to bid for the mailroom position. Id. Barnett claimed that because he was an individual with a disability capable of performing the essential functions of the mailroom job, the mailroom job was a reasonable accommodation mandated by the ADA. Id. at 394–95, 122 S.Ct. 1516.
The Supreme Court first noted that “[t]he simple fact that an accommodation would provide a ‘preference’—in the sense that it would permit the worker with a disability to violate a rule that others must obey—cannot, in and of itself, automatically show that the accommodation is not ‘reasonable.’ ” Id. at 398, 122 S.Ct. 1516 (emphasis in original). Instead, the Court outlined a case-specific approach: Once the plaintiff has shown he seeks a reasonable method of accommodation, “the defendant/employer then must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Id. at 403, 122 S.Ct. 1516. While Barnett’s request for assignment to the mailroom was a “reasonable accommodation” within the meaning of the statute, the violation of a seniority system would present an undue hardship to any employer. Id. at 403, 122 S.Ct. 1516.
The EEOC points out that US Airways relied heavily on Humiston–Keeling and, more importantly, that the Court flatly contradicted much of the language of Humiston–Keeling in Barnett. US Airways argued that it was not required to grant a requested accommodation that would violate a disability-neutral rule, picking up the argument from Humiston–Keeling that the ADA is “not a mandatory preference act” but only a “non-discrimination statute.” The Court rejected this anti-preference interpretation of the ADA, noting that 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.” 535 U.S. at 397, 122 S.Ct. 1516. Merely following a “neutral rule” did not allow US Airways to claim an “automatic exemption” from the accommodation requirement of the Act. Id. Instead, US Airways prevailed because its situation satisfied a much narrower exception based on the hardship that would be imposed on an employer utilizing a seniority system.
While EEOC’s argument may be persuasive, the analysis of Barnett’s impact on Humiston–Keeling is further complicated by the fact that we are not the first panel to
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E.E.O.C. v. United Airlines, Inc., 673 F.3d 543 (2012)

consider this issue. This court has previously considered Barnett’s relationship to Humiston–Keeling, albeit in an abbreviated fashion without the benefit of briefing. In Mays v. Principi, 301 F.3d 866 (7th Cir.2002), this court relied on Humiston–Keeling in finding that an employer did not violate the duty of reasonable accommodation in the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., by giving an administrative nursing position to a better qualified applicant, rather than to a disabled *546 employee needing reassignment.1 Mays, 301 F.3d at 871–72. The Mays Court noted that the recently handed down Barnett decision actually bolstered Humiston–Keeling. In so doing, the Mays Court equated seniority systems with any normal method of filling vacancies. “[Barnett ] holds that an employer is not required to give a disabled employee superseniority to enable him to retain his job when a more senior employee invokes an entitlement to it conferred by the employer’s seniority system. If for ‘more senior’ we read ‘better qualified,’ for ‘seniority system’ we read ‘the employer’s normal method of filling vacancies,’ and for ‘superseniority’ we read ‘a break,’ U.S. Airways becomes our case.” Id. at 872 (internal citation omitted).

1

Instead, the employer placed the disabled employee in a

clerical position.

The EEOC argues that the Mays Court’s assertion that a best-qualified selection policy is essentially the same as a seniority system is simply wrong. In equating the two, the Mays Court so enlarges the narrow exception set out in Barnett as to swallow the rule. To bolster this critique, the EEOC points out the relative rarity of seniority systems and the distinct challenges of mandating reassignment in a system where employees are already entitled to particular positions based on years of employment.
But the Mays Court is not the only court to treat Humiston–Keeling as good law. On two other occasions after the Supreme Court’s ruling in Barnett, this court has relied on Humiston–Keeling: Craig v. Potter, 90 Fed.Appx. 160 (7th Cir.2004), and King v. City of Madison, 550 F.3d 598 (7th Cir.2008).2 In short, this court has made no move to abandon Humiston–Keeling after Barnett, bolstering the district court’s conclusion that Barnett does not overrule or undermine Humiston–Keeling. While these decisions have not provided detailed analysis, their mere existence and consistent interpretations compel this court to find that Humiston–Keeling remains good law.

2

However, neither of these cases mentions Barnett.

The EEOC asks us to adopt the position of our sister Circuits, the Tenth in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir.1999) (en banc ) and the D.C. in Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C.Cir.1998) (en banc ), holding that the ADA requires reassignment to vacant positions. The EEOC argues that both decisions conduct a more thorough analysis of the statutory language and legislative history of the ADA than this court did in Humiston–Keeling. But this argument cannot do much work, for the EEOC is merely returning to its position that this court in Humiston–Keeling misinterpreted the ADA. Instead, the EEOC must show that this court’s established interpretation of the ADA in Humiston–Keeling is no longer viable after Barnett.
For its part, United argues that this court should not abandon Humiston–Keeling, in part because the Eighth Circuit explicitly adopted the reasoning of Humiston–Keeling in Huber v. Wal–Mart Stores, 486 F.3d 480, 483–84 (8th Cir.2007). The Eighth Circuit’s wholesale adoption of Humiston–Keeling has little import. The opinion adopts Humiston–Keeling without analysis, much less an analysis of Humiston–Keeling in the context of Barnett. A circuit split will remain even if this court adopts the position of the Tenth and D.C. Circuits. However, there is no harm in lessening this split if, in fact, Barnett undermines Humiston–Keeling. In that respect, the present panel of judges strongly recommends en banc consideration of the *547 present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive with or without consideration of Barnett.
This court has previously determined that Barnett does not conflict with Humiston–Keeling. Courts within this circuit have continued to cite Humiston–Keeling favorably. As Humiston–Keeling is still good law and directly on point, the district court rightly concluded that the ADA does not require employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified. For this reason, the judgment of the district court is AFFIRMED.

3

 
 2/18/2014

U.S. Supreme Court Denies United Airlines Petition

U.S.  Equal  Employment  Opportunity  Commission
PRESS  RELEASE 5-­30-­13
U.S.  Supreme  Court  Denies  United  Airlines  Petition
Seventh  Circuit  Decision  that  Employees  With  Disabilities  Need  Not  Compete  For  Reassignment  Stands
WASHINGTON  -­  In  a  closely  watched  case,  the  U.S.  Supreme  Court  issued  a  written  order  denying  air transportation  giant  United  Airlines's  petition  for  high  court  review  of  a  disability  discrimination  lawsuit  brought  by the  U.S.  Equal  Employment  Opportunity  Commission  (EEOC).    This  means  the  Seventh  Circuit  Court  of  Appeal's Sept.  7,  2012  decision  will  stand,  holding  that  "reasonable  accommodation"  under  the  Americans  with  Disabilities Act  (ADA)  may  require  employers  to  provide  employees  with  disabilities  with  "reassignment  to  a  vacant  position" when  the  employee  cannot  be  accommodated  in   his  or  her  current  position.    (EEOC  v.  United  Airlines,  1:10-­CV-­ 01699,  U.S.  Dist.  Court,  No.  Dist.  of  Illinois;;  EEOC  v.  United  Airlines,  No.  11-­1774.  7th  Cir.)
The  EEOC's  lawsuit  charged  that  United  violated  the  ADA  by  requiring  workers  with  disabilities  to  compete  for vacant  positions  for  which  they  were  qualified  and  which  they  needed  in  order  to  continue  working.    The  company's practice  frequentl y  prevented  employees  with  disabilities  from  continuing  their  employment  with  the  company.  The Seventh  Circuit  reversed  the  dismissal  of  the  EEOC's  disability  discrimination  lawsuit  and  found  that  "the  ADA  does indeed  mandate  that  an  employer  appoint  employees  with  disabilities  to  vacant  positions  for  which  they  are qualified,  provided  that  such  accommodations  would  be  ordinarily  reasonable  and  would   not  present  an  undue hardship  to  the  employer."
"The  Seventh  Circuit's  affirmation  of  our  interpretation  of  the  ADA  is  a  tremendous  victory  for  individuals  protected  by the  Americans  with  Disabilities  Act,  and  we  are  pleased  that  the  Supreme  Court  refused  to  review  the  decision," said  EEOC  General  Counsel  P.  David  Lopez.    "This  helps  strengthen  the  EEOC's  ability  to  fully  enforce  the  law  in both  our  i ndividual  and  systemic  cases."
The  EEOC  filed  the  original  lawsuit  on  June  3,  2009  in  the  Northern  District  of  California  based  on  its  investigation of  a  number  of  discrimination  charges  filed  by  United  employees  located  in  San  Francisco  and  Chicago.    United successfully  moved  for  a  change  of  venue  to  the  Northern  District  of  Illinois,  where  an  earlier  Seventh  Circuit  case, EEOC  v.  Humiston  Keeling,  2 27  F.3d  1024  (7th  Cir.  2000),  had  already  held  that  a  competitive  transfer  policy  did not  violate  the  ADA.    In  February  2011,  the  lower  court,  bound  by  this  precedent,  dismissed  the  EEOC's  case against  United.    However,  in  an  en  banc  review,  the  Seventh  Circuit  agreed  with  the  EEOC  that  Humiston  Keeling "did  not  survive"  an  intervening  Supreme  Court  decision,  U.S.  Airways  v.  Barnett,  535  U.S.  391  (20 02).  
EEOC  San  Francisco  Regional  Attorney  William  R.  Tamayo  said,  "Many  times  reassignment  is  the  reasonable accommodation  of  last  resort  and  considered  only  when  the  employee  cannot  be  accommodated  in  the  current position.    With  the  Supreme  Court's  denial  of  United  Airlines'  petition,  we  can  now  go  back  to  court  to  try  to  prove that  United's  qualified  disabled  employees  should  be  provided  reassignme nt."
According  to  the  company  web  site,  United  Airlines  has  almost  50,000  employees  in  every  U.S.  state  and  in  many countries  around  the  world.    The  air  carrier  operates  air  travel  hubs  in  Los  Angeles,  San  Francisco,  Denver, Chicago  and  Washington,  D.C.    United  is  one  of  the  largest  international  carriers  based  in  the  United  States.
The  EEOC  enforces  federal  laws  prohibiting  employment  discrimination.  Further  information  about  the  EEOC  is available  on  its  web  site  at  www.eeoc.gov.

http://www1.eeoc.gov//eeoc/newsroom/release/5-30-13.cfm?renderforprint=1

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