### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk June 15, 1999



### TO: ALL RECIPIENTS OF THE OPINION


### RE: 96-3018, Smith v. Midland Brake, Inc. Filed on June 14, 1999 The slip opinion filed on June 14, 1999, contains aclerical error. The plaintiff-appellant should have been listed as foll ows:

GENEVA M. SMITH, as the administrator of the estate of Robert W. Smith, deceased. A copy of the corrected slip opinion cover page is attached. Sincerely, Patrick Fisher, Clerk of Court

By: Keith Nelson Deputy Clerk

encl.

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 14 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GENEVA M. SMITH, as the administrator of the estate of Robert W. Smith, deceased, Plaintiff-Appellant,

v. MIDLAND BRAKE, INC., a division of Echlin, Inc., Defendant-Appellee.

_______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; JACK DAVOLL, DEBORAH CLAIR, PAUL ESCOBEDO; EQUAL EMPLOYMENT ADVISORY COUNCIL; and CITY AND COUNTY OF DENVER, Amici Curiae. No. 96-3018

Appeal from the United States District Court

for the District of Kansas (D.C. No. 94-4165-DES)

OPINION ON REHEARING EN BANC

Les E. Diehl of Goodell, Stratton, Edmonds & Palmer , L.L.P., Topeka, Kansas, for Plaintiff-Appellant.1 The original panel in this case voted to affirm th e district court’s entry of

summary judgment for Midland Brake on Smith’s ADA c laim, Age Discrimination in Employment Act claim, and Kansas state law claim of (continued...) - 2 - Daniel M. Shea (James Allan Smith and Robert K. Had erlein, of Smith, Currie & Hancock, L.L.P., Atlanta, Georgia, and Mary Kathlee n Babcock of Foulston & Siefken Law Offices, Wichita, Kansas, with him on t he briefs) for DefendantAppellee. C. Gregory Stewart, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory of the Equal Employment Opportunity Commission, Was hington D.C, filed an amicus curiae brief for the Equal Employment Opport unity Commission in support of Plaintiff-Appellant. David C. Feola of King, Minning, Clexton & Feola, L.L.C., Denver, Colorado, and Marille E. Lan ghoff of the Law Office of Marilee Langhoff, Littleton, Colorado, filed an ami cus curiae brief for Jack Davoll, Deborah Clair, and Paul Escobedo in supportof Plaintiff-Appellant. Ann Elizabeth Reesman, Ellen Duffy McKay and Dougla s S. McDowell of McGuiness & Williams, Washington, D.C., and Daniel E. Muse, Denver City Attorney, J. Wallace Wortham, Jr., Denver AssistantCity Attorney Supervisor, Sybil R. Kisken, Denver Assistant City Attorney, Ci ty and County of Denver, Colorado, filed an amicus curiae brief for the Equa l Employment Advisory Council and the City and County of Denver in support of Defendant-Appellee.

Before SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCER O, and MURPHY, Circuit Judges.

EBEL , Circuit Judge.

In this en banc appeal, we are required to answer two questions concerning the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 . 1 First,1 (...continued)

retaliatory discharge. See Smith v. Midland Brake, Inc. , 138 F.3d 1304, 1313 (10th Cir. 1998). We granted Smith’s petition for rehearing en banc limited to the issue of the interpretation of the ADA. We did notgrant rehearing as to the other portions of the panel decision, including its discu ssion of judicial estoppel, and consequently, the remainder of the panel opinion re mains in effect. - 3 - whether an employee can be a “qualified individual with a disability” when that employee is unable to perform the essential functio ns of his or her present job, regardless of the level of accommodation offered, b ut could perform the essential functions of other available jobs within the compan y with or without a reasonable accommodation. The answer to that question, we fin d, is yes. Second, if a person is a “qualified individual with a disability ” and a reasonable accommodation is not available to enable that emplo yee to perform the essential functions of his or her existing job, what is the s cope of the employer’s obligation to offer that employee a reassignment jo b? We review the district court’s grant of summary judgment de novo. See 19 Solid Waste Dept. Mechanics v. City of Albuquerque , 156 F.3d 1068, 1071 (10th Cir. 1998); White v. York Int’l Corp. , 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In determining2 Robert W. Smith died while this appeal was pendin g before the original

panel. Geneva M. Smith, as the Administrator of th e Estate of Robert W. Smith, filed a suggestion of death and a motion to substit ute herself as the Plaintiff-Appellant, pursuant to Fed. R. App. P. 43 (a). We grant that motion. - 4 - whether the evidence presents a genuine issue of material fact, we view it in the light most favorable to the party against whom summ ary judgment was entered,” here Plaintiff-Appellant Robert Smith. Garratt v. Walker , 164 F.3d 1249, 1251 (10th Cir. 1998) (en banc).

Background The facts of this case are reported in the original panel opinion, see Smith v. Midland Brake, Inc. , 138 F.3d 1304 (10th Cir. 1998), and we briefly re state them here. 2 Plaintiff-Appellant Robert Smith was employed by DefendantAppellee Midland Brake for nearly seven years in th e light assembly department to assemble and test small air valve components of air brakes for large vehicles. Through this job, Smith came into contact with vari ous chemicals, solvents, and irritants, and eventually developed muscular injuri es and chronic dermatitis on his hands, see id. at 1307. Smith’s maladies were so severe that his physicians restricted his work activities by recommending thathe avoid exposure to potential contact irritants and, on several occasio ns, by ordering him not to work at all for limited periods. See id. Smith has admitted that his physicians- 5 -

considered him “permanently disabled” and unfit to work in the light assembly department due to his chronic dermatitis, id. at 1308, and that Midland Brake was unable to find an assignment within the light assem bly department that Smith could perform given his physical limitations, see id. at 1307. Eventually, Midland Brake fired Smith because of its admitted i nability to accommodate his chronic skin sensitivity in his previous department. See id. Smith filed a complaint in the United States Distri ct Court for the District of Kansas seeking relief on the basis of Midland Br ake’s alleged violations of the ADA, ADEA, and Kansas state law. The district court entered summary judgment for Midland Brake on all of these claims. With regard to the ADA claim in particular, the district court held that S mith was not a “qualified individual with a disability” because, inter alia, Smith failed to provide Midland Brake with a medical release to return to work. On appeal, the panel affirmed the district court’s judgment, but as to the ADA claim the panel affirmed on different reasoning. Although the panel agreed that Smith wa s not a “qualified individual with a disability,” it predicated that conclusion u pon the fact that no amount of accommodation could allow Smith to perform his exis ting job. Therefore, the panel concluded that Smith was not “qualified” unde r 42 U.S.C. § 12111(8). Judge Briscoe dissented on that particular holding. This court subsequently- 6 -

agreed to rehear only Smith’s ADA claim “on the iss ue of interpretation of the requirements of the Americans with Disabilities Act .”

Discussion

I. ADA Statutory Framework

A . The general proscription of Title I of the American with Disabilities Act (ADA) is: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in re gard to job application procedures, the hiring, advancement, ordischarge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a) (emphasis added). The ADA def ines the term “discriminate” to include not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual wi th a disability who is an applicant or employee, unless such covered entity c an demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity . . . . 42 U.S.C. § 12112(b)(5)(A) (emphasis added).- 7 -

This language reveals that a person must meet the t hreshold test of being a “qualified individual with a disability” in order t o invoke the ADA. The ADA defines a “qualified individual with a disability” as an individual with a disability who, with or withou t reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires

. 42 U.S.C. § 12111(8) (emphasis added). Midland Brake claims that Smith does not meet that definition of “qualified individual w ith a disability” because he could not perform the essential functions of his ex isting job in the light assembly department regardless of the level of accommodation offered. See Smith , 138 F.3d at 1307. In this argument, Midland is in error, and the erro r is easy to identify. That reading ignores the last two words of the statutorydefinition of “qualified individual with a disability,” the last two words b eing “or desires.” 42 U.S.C. § 12111(8). Although a “qualified individual with a disability” has to be someone who can perform the essential functions of a job, that inquiry is not limited to the employee’s existing job. Rather, th e plain language of the statute includes an employee who has the ability to do othe r jobs within the company that such disabled employee “desires.” 42 U.S.C. § 12111(8). To read the ADA otherwise, would render the word “desires” meaningl ess, and we must avoid such a construction. See Gustafson v. Alloyd Co. , 513 U.S. 561, 574 (1995)- 8 -

(interpreting § 12(2) of the Securities Act of 1933 , “the Court will avoid a reading which renders some words altogether redundant”); Fuller v. Norton , 86 F.3d 1016, 1024 (10th Cir. 1996) (“We avoid interpr eting statutes in a manner that makes any part superfluous.”). Our conclusion that a “qualified individual with a disability” includes a disabled employee who desires and can perform with or without reasonable accommodation an available reassignment job within the company, though unable to perform his or her existing job, is reinforced b y an examination of the ADA’s definition of “reasonable accommodation.” The ADA definition of “reasonable accommodation” lists the kinds of reasonable accomm odations that may be required of an employer. Reasonable accommodations may include (A) making existing facilities used by employees readi ly accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work sche dules, reassignment to a vacant position , acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qu alified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9) (emphasis added). The term “r eassignment to a vacant position” indisputably indicates more than just an alteration to the employee’s existing job. Reading §§ 12111(8) and (9) of the A DA together, a reasonable accommodation may include a re assignment from the employee’s current job to one that he or she desires.- 9 -

Legislative history further supports this reading o f the ADA. The House Committee on Education and Labor that reported out the bill that became the ADA stated: Reasonable accommodation may also include reassignm ent to a vacant position. If an employee, because of disability, c an no longer perform the essential functions of the job that she or he has h eld, a transfer to another vacant job for which the person is qualified may pr event the employee from being out of work and [the] employer from losi ng a valuable worker. H.R. Rep. No. 101-485(II), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345. Neither Midland Brake nor amicus have cited, nor have we found, any contrary legislative history. Our reading of “qualified individual with a disabil ity” to include individuals who can perform an appropriate reassign ment job within the company, with or without reasonable accommodation, even though they cannot perform their existing job no matter how much accom modation is extended, is supported by nearly every circuit that has explicit ly or implicitly considered the issue. See Feliciano v. Rhode Island , 160 F.3d 780, 785-86 (1st Cir. 1998) (“[The employee] produced no evidence to show that she could perform the essential functions of [her] position with or witho ut reasonable accommodation. . . . The determination that [the employee] cannot p erform the essential functions of her job . . . does not end the analysis. . . . Section 12111(9)(B) of the ADA states that 

### < reasonable accommodation’ may include 

### < reassignment to a vacant- 10 -

position.’”) (citations omitted); Stone v. City of Mount Vernon , 118 F.3d 92, 100 (2d Cir. 1997) (refusing to hold unreasonable as a matter of law a requested reassignment of a partially paralyzed firefighter t o the fire department’s administrative bureau), cert. denied , 118 S. Ct. 1044 (1998); Gaul v. Lucent Technologies, Inc. , 134 F.3d 576, 578, 580 (3d Cir. 1998) (employee w ho “cannot perform his former duties” must, if the req uired accommodation is a transfer to another department or supervisor, “demo nstrate that there were vacant, funded positions whose essential duties he was capable of performing, with or without reasonable accommodation”) (quotations omitted); Monette v. Electronic Data Systems Corp. , 90 F.3d 1173, 1187 (6th Cir. 1996) (“it is true that employers may be required, as a reasonable accommod ation, to transfer a disabled employee to a vacant position for which he or she is qualified”); Dalton v. Subaru-Isuzu Automotive, Inc. , 141 F.3d 667, 677 (7th Cir. 1998) (“It is well established that under the ADA, the employer’s dutyreasonably to accommodate a disabled employee includes reassignment of the employee to a vacant position for which she is qualified. The option of reassign ment is particularly important when the employee is unable to perform the essentia l functions of his or her current job, either with or without accommodation o r when accommodation would pose an undue hardship for the employer.”); Gile v. United Airlines, Inc. , 95 F.3d 492, 498 (7th Cir. 1996) (“ Our review of the ADA, its regulations, and- 11 -

the EEOC’s interpretive guidance leads us to the co nclusion of the majority of courts that have addressed the issue that the ADA m ay require an employer to reassign a disabled employee to a different positio n as reasonable accommodation where the employee can no longer perform the essent ial functions of their current position.”); Benson v. Northwest Airlines , Inc. , 62 F.3d 1108, 1112, 1114 (8th Cir. 1995) (employee’s previous job as a mechanic w ould be totally inappropriate given his condition, but if the employer “had a vac ant, existing position for which [the employee] qualified, [the employee’s] as signment to the position might have been a reasonable accommodation”); Zukle v. Regents of Univ. of California , 166 F.3d 1041, 1046-47 (9th Cir. 1999) (“In the e mployment context,



### < [o]nce the plaintiff has established the existence of a reasonable accommodation that would enable him or her to perform the essenti al functions of an available job, the burden switches to the defendant to show t hat this accommodation would constitute an undue hardship.’”) (quoting Barnett v. U.S. Air, Inc. , 157 F. 3d 744, 749 (9th Cir. 1998)); Barnett , 157 F.3d at 749-50 (“the plaintiff must show the existence of a position that he or she could perfor m either with or without specific reasonable accommodation,” but holding that employee had not established right to reassignment to a mailroom pos ition because others with greater seniority rights had claim to that job); Aldrich v. Boeing Co. , 146 F.3d 1265, 1271 (10th Cir. 1998) (finding evidentiary su pport for employee’s3 We are unsure of the Fifth Circuit’s position on t his issue. In Foreman v.

Babcock & Wilcox Co. , 117 F.3d 800 (5th Cir. 1997), cert. denied , 118 S. Ct. 1050 (1998), after holding that the employee’s heart condition was not a disability, id. at 806-807, the court alternatively held that the employee was an unqualified individual because he was medically unq ualified to perform his current job, id. at 807-09. The court then held, once again in the alterative, that, (continued...) - 12 - argument that there existed two other positions to which he could have been reassigned as a reasonable accommodation), cert. denied , --- S. Ct. ---, No. 98- 859, 1999 WL 342477 (U.S. June 1, 1999); White v. York Int’l Corp. , 45 F.3d 357, 362 (10th Cir. 1995) (after finding no “possible accommodations” enabling employee to continue working in his present position, rejected various reassignment accommodations because employee was either not qua lified for

vacant jobs, no vacancies existed , or reassignment would have been a promotion); Aka v. Washington Hosp. Ctr. , 156 F.3d 1284, 1301 (D.C. Cir. 1998) (en banc) (“An employee seeking reassignment to a vacant posi tion is thus within the definition [of an 

### < otherwise qualified individual with a disability’] if, with or without reasonable accommodation, she can perform t he essential functions of the employment position to which she seeks reassignment.”). But see Myers v.
Hose , 50 F.3d 278, 284 (4th Cir. 1995) (“the duty of re asonable accommodation does not encompass a responsibility to provide a di sabled employee with alternative employment when the employee is unable to meet the demands of his present position”). 33 (...continued)

even if the employee were disabled and qualified, h is requested accommodation for a reassignment was unreasonable because it woul d violate a priority right of others under a collective bargaining agreement and because the employee offered no evidence that the requested positions were avail able. Id. at 809-10. A year later, the Fifth Circuit decided Deas v. Riv er West, L.P. , 152 F.3d 471 (5th Cir. 1998). In Deas , the Fifth Circuit held that the employee was not disabled under the “regarded as” prong of the ADA’s definition of disability. Id. at 481. However, the court went on to say that if the employee were asserting discrimination for failure to reassign her to anoth er position, she would not prevail “because she has not made any showing eithe r that positions were available or that she applied for, requested to be considered for, or even showed an interest in other positions at the hospital. [Th e employee] bears the initial burden of producing evidence on these issues.” Id. at 481 n.23; Still v. FreeportMcMoran, Inc., 120 F.3d 50, 53 (5th Cir. 1997) (holding that empl oyee was not disabled, but even if he were, he did not have a ri ght to reassignment to a new job because he acknowledged that he was not able to mee t the basic requirements of the new job, even with reasonable accommodations). District court cases in the Fifth Circuit that have applied Foremanhave not barred reassignment simply because an employee is u nable to perform the essential functions of his or her existing job, no matter the accommodation. Rather, when they have denied reassignment , it has been because factually the employee could not establish that there was an avai lable alternative job which the employee was competent to perform. See, e.g., Leger v. Texas EMS Corp. , 18 F. Supp. 2d 690, 695 (S.D. Tex. 1998); Newman v. Chevr on U.S.A. , 979 F. Supp. 1085, 1091 (S.D. Tex. 1997); Wilson v. Phillips Petroleum Co. , No. 2:97-CV-439-J, 1998 WL 874835, at *3 (N.D. Tex. Dec . 8, 1998). - 13 - Midland Brake argues that the term “reassignment” i n the definition of “reasonable accommodation” in § 12111(9) and the wo rds “or desires” in § 12111(8) must refer only to job applicants and no t to existing employees. In this way Midland Brake tries to give meaning to the words “or desires” to avoid superfluity. We reject that reading. In the firstplace, it is not textually sound because § 12111(9) uses the phrase “ re assignment.” If that phrase were- 14 -

addressed only to job applicants, the term would be “assignment.” The “re” in “reassignment” implies the presence of an existing assignment, i.e., an existing job, that the person holds, such that the person mu st therefore be an existing employee, not a job applicant. In addition, reassignment is listed as one of the available reasonable accommodations in the middle of a laundry-list of r easonable accommodations which clearly apply to existing employees, e.g., jo b restructuring, modification of job schedules, etc. See 42 U.S.C. § 12111(9)(B). “That several items in alist share an attribute counsels in favor of interpretin g the other items as possessing that attribute as well.” Beecham v. United States , 511 U.S. 368, 371 (1994). As a result, we give the reasonable accommodation of r eassignment the same character as the other reasonable accommodations li sted in the same paragraph, which means that reassignment is applicable to exis ting employees. Finally, § 12112(a) prohibits discrimination not on ly in regard to job application procedures and hiring decisions, but al so to advancement, termination of employees, compensation, job training, “and othe r terms, conditions, and privileges of employment.” With this background in mind, it is the more natural reading of “or desires” to apply the phrase more br oadly than just to job applicants. See Daugherty v. City of El Paso , 56 F.3d 695, 699 (5th Cir. 1995) (“[W]e do not read the statutory reference to employment an individual 

### < desires’- 15 -

as applicable only to job applicants. Instead we r ead this language as extending to individuals like [the plaintiff] who are alreadyemployed and then become disabled, since the broad prohibition against discr imination found in 42 U.S.C. § 12112(a) extends not only to hiring and job appli cation procedures, but to advancement, discharge of employees, 

### < and other terms, conditions, and privileges of employment.’”).

B . The separate concurrence and dissent of Judge Kellysuggests that the reassignment duty imposed by the ADA is no more than a duty merely to consider without discrimination a disabled employee’s reques t for reassignment along with all other applications the employer may receive fro m other employees or job applicants for a vacant position. We reject this n arrow definition of reassignment, both because it does violence to the literal meaning of the word reassignment and because it would render the reassi gnment language in 42 U.S.C. § 12111(9) a nullity. First, as to the literal language, the ADA defines the term “reasonable accommodation” to include “reassignment to a vacantposition.” The statute does not say “consideration of a reassignment to a vacan t position.” Moreover,- 16 -

“reassignment” must mean something more than the me re opportunity to apply for a job with the rest of the world. As the D.C. Circ uit has explained: [T]he word “reassign” must mean more than allowing an employee to apply for a job on the same basis as anyone else. An emp loyee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been “reassigned”; the core word “assign” implies some active effort on the part of the emplo yer. Aka , 156 F.3d at 1304. With regard to the second point, the ADA separatelyprohibits an employer from discrimination against a disabled person in hi s or her application for a vacant job. See 42 U.S.C. § 12112(a) (“No covered entity shall dis criminate against a qualified individual with a disability . . . in regard to job application procedures, the hiring . . . .”). Whether the disa bled person is an existing employee seeking reassignment or an outside job applicant, the company cannot therefore discriminate against the disabled individ ual on the basis of his or her disability. Thus, if the reassignment language mer ely requires employers to consider on an equal basis with all other applicant s an otherwise qualified existing employee with a disability for reassignmen t to a vacant position, that language would add nothing to the obligation not to discriminate, and would thereby be redundant. See Aka , 156 F.3d at 1304 (“[T]he ADA’s reference to reassignment would be redundant if permission to ap ply were all it meant; the ADA already prohibits discrimination 

### < against a qualified individual with a- 17 -

disability because of the disability of such indivi dual in regard to job application procedures.’”) (citing 42 U.S.C. § 12112(a)). Statutory redundance is to be avoided, and we are to give meaning to every word o f a statute where possible.
See Ratzlaf v. United States , 510 U.S. 135, 140 (1994). Thus, the reassignment obligation must mean somethi ng more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position. Reassignment is, in fact, one of the forms of reasonable accommodation specifically mentioned by the statute to be utilized if necessary and reasonable to keep an existing disabled employe e employed by the company. The language chosen by the other courts in addressi ng the reasonable accommodation of reassignment is instructive. See Monette , 90 F.3d at 1187 (“it is true that employers may be required, as a reason able accommodation, to transfer a disabled employee to a vacant position f or which he or she is qualified”); Gile , 95 F.3d at 498 (“[A]n employer may be obligated t o reassign a disabled employee only when, even with reasonable a ccommodation, the employee can no longer perform the essential functi ons of his present job.”); Ransom v. State of Ariz. Bd. of Regents , 983 F. Supp. 895, 902-03 (D. Ariz. 1997) (“[A]llowing the plaintiff to compete for job s open to the public is no accommodation at all. . . . [The employer’s] polic y or practice that all reassignments are made through competitive hiring p revents the reassignment of4 Moreover, elsewhere in the ADA, Congress providedthat: Except as otherwise provided in this chapter, nothi ng in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. § 790 et seq.) or the regulations issued by the Fed eral agencies pursuant to such title. 42 U.S.C. § 12201(a). The Supreme Court stated that this directive “requires us construe the ADA to grant at least as much protecti on as provided by the regulations implementing the Rehabilitation Act.” Bragdon v. Abbott , 118 S. Ct. 2196, 2202 (1998). The regulations issued by the J ustice Department implementing § 504 of the Rehabilitation Act (which is the section of the Rehabilitation Act that is directly analogous to th e ADA) state: A recipient shall make reasonable accommodation to the known physica l or mental limitations of an otherwise qualified handic apped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program. 28 C.F.R. § 41.53 (1998) (emphasis added). Reading the ADA with this regulatory gloss in mind, as we must, establishes that when an otherwise qualified individual with a disability can only be reasonably accommodated by a reassignment to a vacant position, the employer “shall” make that reassignment

. If the ADA merely requires the employer to give the disabled employee “consideration” for that vacancy on an equal basis with other applicants, the ADA (continued...) - 18 - employees with disabilities to vacant positions forwhich they are qualified and discriminates against 

### < qualified individuals with disabilities.’”) (quotat ions and citations omitted) ; Community Hosp. v. Fail , 969 P.2d 667, 678 (Colo. 1998) (“[T]he ADA requires an employer to offer reassignm ent to a vacant position that the employee can perform if the employer cannot rea sonably accommodate her disability in her current position.”). 44 (...continued)

would supply disabled employees with lesser protect ion than that provided by the regulations implementing the Rehabilitation Act, a result contrary to Bragdon

.

5 Pursuant to a statutory directive, see 42 U.S.C. § 12116, the EEOC issued regulations to implement title I of the ADA, see 29 C.F.R. §§ 1630.1-.16. Those regulations are entitled to a great deal of deferen ce. See EEOC v. Commercial Office Prods. Co. , 486 U.S. 107, 115 (1988); Chevron, U.S.A., Inc. v . Natural Resources Defense Council, Inc. , 467 U.S. 837, 844 (1984); Deane v. Pocono Medical Center , 142 F.3d 138, 143 n.4 (3d Cir. 1998) (en banc)

. The EEOC added to these regulations an appendix, wh ich is the Commission’s interpretive guidance to the ADA. The EEOC also published its Enforcement Guidance on Reasonable Accommodation an d Undue Hardship Under the Americans with Disabilities Act. As admi nistrative interpretations of the ADA, which is the statute the EEOC is charged w ith enforcing, these guidances are “not controlling upon the courts by r eason of their authority,” but they “do constitute a body of experience and inform ed judgment to which courts and litigants may properly resort for guidance.” M eritor Sav. Bank v. Vinson , 477 U.S. 57, 65 (1986) (quotations and citations om itted); Pack v. Kmart Corp. , 166 F.3d 1300, 1305 n.5 (10th Cir. 1999) (“While th e EEOC’s guidance may be entitled to some consideration in our analysis, it does not carry the force of law and is not entitled to any special deference.”), pe tition for cert. filed(U.S. May 5, 1999) (No. 98-1784). On the other hand, if the EEO C interpretive guidances are construing not the underlying statute , but rather are interpreting the EEOC’s own regulations issued pursuant to the statute, then that interpre tation would be entitled to greater deference. See Thomas Jefferson University v. Shalala , 512 U.S. 504, 512 (1994) (courts “must give substantial deference to an agency’s interpretation of its own regulations . . . . [T]he agency’s interpretation must be given controlling weight unless it is plainly erron eous or inconsistent with the regulations”) (quotation and alteration omitted). - 19 - The EEOC Interpretive Guidance, 29 C.F.R. Pt. 1630, App. § 1630.2(o) (1998), is not to the contrary. 5 It provides: Reassignment to a vacant position is also listed as a potential reasonable accommodation. In general, reassignment should be considered only when accommodations within the individual’s current posi tion would pose an undue hardship. . . . An employer may reassign an i ndividual to a lower graded position if there are no accommodations thatwould enable the- 20 -

employee to remain in the current position and ther e are no vacant equivalent positions for which the individual is qu alified with or without reasonable accommodations. The context of the quoted language reveals that the word “considered” is not intended to denigrate a disabled employee’s right t o have reassignment offered as a reasonable accommodation where appropriate. The quoted sentence, rather, only states a condition precedent before reassignme nt should be considered. That is, the message delivered by the quoted sentence is first, the employer must determine that no reasonable accommodation could be made to keep the disabled employee in his present position. Only then shouldthe employer move to the alternative accommodation of reassignment. The interpretative guidance uses the word “consider ed” because reassignment necessarily includes as one of its components the interactive process discussed below. That is, a process of con sideration is necessarily a component of the act of reassignment itself. Only through consideration in a reasonably interactive way can it be determined whe ther an employee desires reassignment; whether there are vacant positions av ailable at an equivalent or lesser position; whether such positions are truly v acant; whether reassignment would interfere with the rights of other employees or important business policies of the company, etc. The right to reassignment aft er all is not absolute. It requires deliberative consideration, and depending upon many factors, may or- 21 -

may not rise to a right to reassign. On the other hand, after considering all of the relevant factors, it may very well be determined th at reassignment is a reasonable accommodation under all of the circumstances. If i t is so determined, then the disabled employee has a right in fact to the reassi gnment, and not just to the consideration process leading up to the potential r eassignment. Our reading of the EEOC Interpretive Guidance is confirmed by the most recent pronouncement of the EEOC. The EEOC asked the question: “Does reassignment mean that the employee is permitted to compete for a vacant position?” EEOC Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (“EEOC Gu idance”), at 44 (1999) (emphasis in original). It answered that question, “No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would notbe implemented as Congress intended.” Id. Any other reading of “considered” in the EEOC Interpretive Guidance is not only contextually indefensible, it is illogical . In addition to reassignment to a vacant position, the ADA lists other reasonable acc ommodations such as “job restructuring,” “part-time or modified work schedul es,” and “the provision of qualified readers or interpreters.” 42 U.S.C. § 12 111(9)(B). There is nothing about a reassignment that transforms it into a less er accommodation than the- 22 -

others listed, which an employer must not only cons ider but must also implement if appropriate. If a disabled employee had only a right to require the employer to consider his application for reassignment but had no right t o reassignment itself, even if the consideration revealed that the reassignment wo uld be reasonable, then this promise within the ADA would be empty. The employe r could merely go through the meaningless process of consideration of a disabled employee’s application for reassignment and refuse it in every instance. It would be cold comfort for a disabled employee to know that his orher application was “considered” but that he or she was nevertheless st ill out of a job – a job to which he or she was otherwise qualified and as to w hich he or she had a reasonable claim to reassignment. We do not think Congress intended such a hollow promise when it listed reassignment as one o f the specific reasonable accommodations in 42 U.S.C. § 12111(9). We conclude that reassignment of an employee to a v acant position in a company is one of the range of reasonable accommodations which must be considered and, if appropriate, offered if the empl oyee is unable to perform his or her existing job. Thus, even though Smith was admi ttedly unable to perform the essential functions of his existing job in the ligh t assembly department, that- 23 -

admission by itself does not preclude his ADA claimfor an accommodation of reassignment. The separate concurrence and dissent by Judge Kellyerroneously conflates “affirmative action” with the statutory definition of discrimination. However, judicial labels cannot substitute for Congress’ statutory mandate in the ADA. In § 12112(b)(5)(A), Congress definedthe term “discriminate” to include “not making reasonable accommodations to the known physi cal or mental limitations of an otherwise qualified individual with a disabil ity . . .” Then, in § 12111(9)(B), Congress defined the term “reasonabl e accommodation” to include “reassignment to a vacant position.” Thus, althoug h the dissent would prefer to view the reasonable accommodation of reassignment a s “affirmative action,” Congress chose to consider it otherwise when it def ined the failure reasonably to accommodate (including reassignment) as a prohibite d act of discrimination. It is the Congressional definition, of course, that must govern our analysis. On the other hand, the dissent would judicially do some redrafting of the ADA. The only statutory exception here relevant to an employer’s obligation to make reasonable accommodations to an otherwise qual ified individual with a disability is if such accommodations would impose “ an undue hardship” on the employer. 42 U.S.C. § 12112(b)(5)(A). The dissent would write in an additional exception to the effect that an employer need not m ake the reasonable6 One wonders whether the dissent would similarly al low an employer to

escape its duty to offer the other enumerated reaso nable accommodations to keep a disabled employee in his or her existing job by t he same expedient of finding a more qualified person to fulfill that job. For exa mple, if an otherwise qualified disabled person asks for a reasonable “modified work schedule” or “modification of equipment” to keep his or her existing job, coul d the employer find a more qualified employee to fill the job, and then assertthat it was thereby absolved of its obligation to offer a reasonable accommodation to the disabled employee? To ask the question is to answer it, yet it points outhow the dissent seeks to single out one listed reasonable accommodation – reassignm ent to a vacant position – and denigrate it to second-class status.

7 The dissent argues that our interpretation of the A DA would read out the words “may include” that precede the nonexclusive l ist of examples of reasonable accommodations found in 42 U.S.C. § 12111(9). Our interpretation does nothing of the sort. The words “may include” precede the n onexclusive list of examples of reasonable accommodation precisely because the l ist is nonexclusive and various accommodations may or may not be appropriat e depending upon the disability and other circumstances of employment. - 24 - accommodation of reassignment if it can find a bett er qualified employee to take the place of the otherwise qualified individual wit h a disability. 6 In so doing, the dissent would further judicially amend the statutory phrase “qualified individual with a disability” to read, instead, “best qualifie d individual, notwithstanding the disability.” However, these are not the words as C ongress wrote them, and our duty is to enforce Congress’ definition of discrimi nation. 7 It is also telling that the dissent chooses to igno re one of the “Findings and Purposes” of the ADA, where Congress found that “th e Nation’s proper goals regarding individuals with disabilities are to assu re equality of opportunity, full participation, independent living, and economic sel f-sufficiencyfor such- 25 -

individuals.” 42 U.S.C. § 12101(a)(8) (emphasis ad ded). Thus, the ADA has multiple objectives, and by defining discrimination as it did to include the failure to offer reasonable accommodations, one of Congress ’ objectives was to facilitate economic independence for otherwise qualified disab led individuals. See Cleveland v. Policy Management Systems Corp. , --- S. Ct. ---, No. 97-1008, 1999 WL 320795, at *5 (U.S. May 24, 1999) (“The ADA seek s to eliminate unwarranted discrimination against disabled individ uals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity.”). The dissent’s reading of the legislative history is similarly imprecise. The legislative history that it cites, H.R. Rep. No. 10 1-485 (II), at 55-56 (1990), reprinted in1990 U.S.C.C.A.N. 303, 337-338, refers only to an employer’s obligations in hiring initial job applicants. It d oes not refer to an employer’s statutory obligation to offer reasonable accommodat ions to an existing employee who is a “qualified individual with a disability.” We have no quarrel with the proposition that an employer, when confronted with two initial job applicants for a typing position, one of whom types 50 words a min ute while the other types 75 words a minute, may hire the person with the highertyping speed, notwithstanding the fact that the slower typist has a disability. However, the legislative history clearly distinguishes between t he affirmative action of8 Compare H.R. Rep. No. 101-485 (II), at 65 (1990), reprinte d in1990

U.S.C.C.A.N. 303, 346 (“The Committee wishes to emp hasize again that this legislation does not require an employer to make any modification, adjustment, or change in a job description or policy that an emplo yer can demonstrate would fundamentally alter the essential functions of the job in question.”) withH.R. Rep. No. 101-485 (II), at 62 (1990), reprinted in1990 U.S.C.C.A.N. 303, 344 (“The duty [under the ADA] to make reasonable accom modations . . . has been included as a form of non-discrimination on the bas is of disability for almost fifteen years under section 501 and section 504 of the Rehabilitation Act of 1973.”). - 26 - modifying the essential functions of a job (which i s not required) and the duty to reassign a disabled person to an existing vacant jo b, if necessary to enable the disabled person to keep his or her employment with the company (which is required). 8 When the legislative history focuses on Congress’ understanding of the scope of the “reassignment” option as a reasona ble accommodation, it is clear that Congress understood that option to give the di sabled employee real rights visa-vis other applicants. The House Report states: The Committee also wishes to make clear that the re assignment need only be to a vacant position - “bumping” another employee out of a position to create a vacancy is not required. H.R. Rep. No. 101-485 (II), at 63 (1990), reprintedin1990 U.S.C.C.A.N. 303, 345. As the en banc District of Columbia Circuit observed in Aka , 156 F.3d at 1304, “Had Congress intended that disabled employee s be treated exactly like other job applicants, there would have been no need for the report to go on to explain that ‘“bumping” another employee out of a p osition to create a vacancy is- 27 -

not required’. . .; there would have been no dangerthat an employee would have to be ‘bumped.’” The unvarnished obligation derived from the statute is this: an employer discriminates against a qualified individual with a disability i f the employer fails to offer a reasonable accommodation. If no reasona ble accommodation can keep the employee in his or her existing job, then the r easonable accommodation may require reassignment to a vacant position so long a s the employee is qualified for the job and it does not impose an undue burden on t he employer. Anything more, such as requiring the reassigned employee to be the best qualified employee for the vacant job, is judicial gloss unwarranted by th e statutory language or its legislative history. The dissent’s citation of judicial authority is sim ilarly wide of the mark. All that the dissent’s cases hold is that the emplo yer need not change the essential functions or prerequisites of a vacant job in orderto accommodate a reassignment. That, of course, is an unremarkable proposition. See Dalton v. Subaru-Isuzu Automotive, Inc. , 141 F.3d 667, 679 (7th Cir. 1998) (an employer is not required to relinquish “legitimate job prerequi sites” in order to place a disabled employee in a vacant position); Duckett v. Dunlop Tire Corp. , 120 F.3d 1222, 1225 (11th Cir. 1997) (per curiam ) (employer not required to modify its existing policy against “rolling back” salaried sup ervisory employees into- 28 -

unionized production positions in order to create aproduction position for a disabled employee who had previously been a salarie d supervisory employee. Further, plaintiff conceded he was not medically qu alified for any position with the defendant.); Daugherty v. City of El Paso , 56 F.3d 695, 699-700 (5th Cir. 1995) (undue hardship to require employer to make f undamental alteration in policy, upon which other employees relied, of filli ng vacancies with full-time employees, rather than part-time employees like pla intiff, in order to accommodate disabled employee. Further, plaintiff did not satisfy the “minimum requirements” for taking the examination required f or one of the jobs sought.); Terrell v. USAir , 132 F.3d 621, 626 (11th Cir. 1998) (“[Employer] w as not required to create a part-time position for plaintiff” when it had no part-time positions anywhere in the company.) (emphasis in or iginal). The final case cited by the dissent, Wernick v. Federal Res. Bank of NY , 91 F.3d 379 (2d Cir. 1996), is particularly inapposite. In Wernick , the court simply held that when an employee rejects a proffered reasonable accommodati on within her existing job , summary judgment for the employer in a failure to r eassign case is appropriate.
See id. at 384 (“[T]he district court’s grant of summary judgment must be affirmed because the accommodations offered by the [employer] were sufficient to discharge its obligation under the disability ac ts to make reasonable accommodation.”). There, the employee had sought amodification in one of the- 29 -

“essential functions of [her] job” in that she requ ested that she be supervised by a different supervisor. Id. The court held that the ADA did not require such a modification. Not a single case cited by the dissent holds that a n employer may abrogate its ADA obligation to offer reassignment as a reaso nable accommodation by the simple expedient of finding another job applicant t hat the employer regards as more qualified. To the extent the dissent attempts to read language in any of these cases so broadly, we believe it would conflic t with the employer’s statutory duties under the ADA. On the contrary, “[n]umerous courts have assumed th at the reassignment obligation means something more than treating a dis abled employee like any other job applicant. [citing Gile v. United Airlines, Inc

. , 95 F.3d 492, 496-99 (7th Cir. 1996); Mengine v. Runyon , 114 F.3d 415, 418 (3d Cir. 1997); Benson v. Northwest Airlines, Inc. , 62 F.3d 1108, 1114-15 (8th Cir. 1995)].” Aka v. Washington Hospital Center , 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc ). To that list, cited by the District of Columbia Circui t, we would add Monette v. Electronic Data Systems Corp. , 90 F.3d 1173, 1187 (6th Cir. 1996); Ransom v. State of Arizona Board of Regents , 983 F. Supp. 895, 902-03 (D. Ariz. 1997); and Community Hosp. v. Fail , 969 P.2d 667, 678 (Colo. 1998).- 30 -

As the dissent rightly observes and as is explainedin Section II of this opinion, Congress has already significantly cabinedthe obligation to offer reassignment to a qualified employee who is disable d so as to ensure that it is not unduly burdensome, or even particularly disruptive, of an employer’s business. First , reassignment need be only to an existing vacant j ob. Therefore, employers need not create a new job or even modify an essenti al function of a vacant job in order to make it suitable for the disabled employee , because such a reconfigured job is not considered an existing vacant position. Similarly, if other employees within the company have a legitimate contractual orseniority right to a vacant position, it is not considered vacant for reassignm ent to the disabled employee. Second , the employee must be “qualified” for the vacant p osition. Although the statute does not require that the employee be the “ best qualified” employee for the vacant position, it at least ensures the employer t hat it need not make the reassignment unless the employee is truly qualified to do the job. Third , the reassignment need not involve a promotion, and the employer has the authority to pick and choose which appropriate vacant job is to be offered to the otherwise qualified disabled employee. Fourth , no reassignment is required if it is not a “reasonable” accommodation or if it poses an “undue hardship.” Congress felt that these were sufficient safeguards. If further limitations are to be sought, they must come from Congress.- 31 -

Finally, if there is any ambiguity in what Congress intended to include within the ADA definition of discrimination, we sho uld give some deference to the EEOC, which is charged in part with administeri ng the ADA. As previously quoted in this opinion, in the EEOC Interpretative Guidance, the EEOC posed the question: “Does reassignment mean that the employee is permitted to compete for a vacant position?” The EEOC answered that que stion, “No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise reassignment would be of little value and would not be implemented as Congress intended.” EEOC Guidance: Reasonable Acco mmodation and Undue Hardship Under the Amercians With Disabilities Act at 44 (1999). See Reno v. Koray , 515 U.S. 50, 61 (1995) (“some deference” owed to interpretative rules and internal agency guidelines adopted by an agency cha rged with administering a statute).

II. Scope of the reassignment duty

We turn next to the second issue on this appeal, wh ich is the scope of Midland Brake’s obligation to offer Smith a reassig nment position.- 32 -

A. Reasonable Accommodations Within the Existing Job are Preferred

When an employer selects among several possible rea sonable accommodations, the preferred option is always an a ccommodation that keeps the employee in his or her existing job if that can reasonably be accomplished. See H.R. Rep. No. 101-485(II), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345 (“Efforts should be made, however, to accommodate an employee in the position that he or she was hired to fill before reassignment is considered.”); 29 C.F.R. Pt. 1630, App. § 1630.2(o) (“In general, rea ssignment should be considered only when accommodation within the indiv idual’s current position would pose an undue hardship [to the employer].”); EEOC Guidance, at 39 (“Reassignment is the reasonable accommodation of last resort.”). “In other words, Congress saw reassignment, as the EEOC does, as an option to be considered only after other efforts at accommodation have failed.” Aka ,156 F.3d at 1301 (citing Gile , 95 F.3d at 496-98). See also Cassidy v. Detroit Edison Co. , 138 F.3d 629, 634 (6th Cir. 1998) (“Generally, tran sfer or reassignment of an employee is only considered when accommodation with in the individual’s current position would pose an undue hardship.”). Both Smith and Midland Brake agree that no reasonab le efforts at accommodation would have enabled Smith to perform t he essential functions of- 33 -

his previous job in the light assembly department. See Smith , 138 F.3d at 1308. Accordingly, reassignment must be considered, and, if appropriate, offered.

B. The Accommodation of “[R]eassignment to a [V]acant [P]osition” is Limited by the Modifier of Reasonableness
Once it is appropriate to consider reassignment, th e employer is required only to take reasonable steps to accomplish a reass ignment. The duty of reassignment is not an absolute one, but rather is in all particulars suffused with the limitation that the employer need only take suc h actions for reassignment as are reasonable under the circumstances. We derive the important limiting factor of reasonab leness on an employee’s duty to reassign from the statute itself , which requires only reasonable accommodation. See 42 U.S.C. §§ 12112(b)(5)(A), 12111(9). Everything that an employer must do in terms of a r eassignment is modified by the adjective reasonable, just as that adjective mo difies any other accommodation required by an employer under the ADA.- 34 -

C. Specific Limitations on an Employer’s Duty to Reassign

The scope of Midland Brake’s obligation to offer Sm ith a reassignment position is further constrained by some of the broa dly accepted limitations on an employer’s duty to reassign that have evolved underADA case law in our circuit and others.

1. Interactive process

“The federal regulations implementing the ADA 

### < envision an interactive process that requires participation by both parties.’” Templeton v. Neodata Services, Inc. , 162 F.3d 617, 619 (10th Cir. 1998) (quoting Beck v. University of Wisconsin Bd. of Regents , 75 F.3d 1130, 1135 (7th Cir. 1996)). 29 C.F.R. § 1630.2(o)(3) states:

To determine the appropriate reasonable accommodati on it may be necessary for the covered entity to initiate an inf ormal, interactive process with the qualified individual with a disabi lity in need of the accommodation. This process should identify the pr ecise limitations resulting from the disability and potential reasona ble accommodations that could overcome those limitation s. In general, the interactive process must ordinarilybegin with the employee providing notice to the employer of the employee’s disability and any resulting9 See Beck , 75 F.3d at 1134 (“An employee has the initial duty to inform

the employer of a disability before ADA liability m ay be triggered for failure to provide accommodations--a duty dictated by common s ense lest a disabled employee keep his disability a secret and sue laterfor failure to accommodate.”); Hedberg v. Indiana Bell Telephone Co. , 47 F.3d 928, 934 (7th Cir. 1995) (“The ADA does not require clairvoyance.”); Miller v. Nat ional Cas. Co. , 61 F.3d 627, 630 (8th Cir. 1995) (“ 

### < The ADA does not require clairvoyance.’ [The employ er] was not obligated to divine the presence of a disab ility from [the employee’s] extended absence from work and the company’s knowle dge that she was in some sort of stressful family situation.”) (quoting Hedb erg , 47 F.3d at 934). See also , 29 C.F.R. Pt. 1630, App. § 1630.9 (“Employers are o bligated to make reasonable accommodation only to the physical or mental limitations resulting from the disability of a qualified individual with a disabil ity that is known to the employer. . . . In general . . . it is the respons ibility of the individual with a disability to inform the employer that an accommodation is needed.”). - 35 - limitations, 9 and expressing a desire for reassignment if no reas onable accommodation is possible in the employee’s existing job. See Taylor v. Principal Financial Group, Inc. , 93 F.3d 155, 165 (5th Cir. 1996). The employee should provide enough information about his or her limitations and desires so as to suggest at least the possibility that reasonable accommodation may be found in a reassignment job within the company. In expressi ng a desire for reassignment, an employee need not use magic words. But, the employee must convey to the employer a desire to remain with the company despit e his or her disability and limitations. See Taylor v. Phoenixville Sch. Dist. , --- F.3d ---, No. 98-1273, 1999 WL 184138, at *12 (3d Cir. April 5, 1999); Hendricks-Robinson v. Excel Corp. , 154 F.3d 685, 694 (7th Cir. 1998) (“A request as straightforward as asking for continued employment is a sufficient request fo r accommodation.”); EEOC10 As already quoted, in Templeton , we stated that the regulations envision

an interactive process which “requires” participati on by both parties. 162 F.3d at 1135; see also Phoenixville , 1999 WL 184138, at * 12-14 (addressing what notic e must be given by an employee to an employer to trig ger the employer’s “obligations” under the interactive process); Taylo r , 93 F.3d at 165 (“[I]t is the employee’s initial request for an accommodation whi ch triggers the employer’s obligation to participate in the interactive proces s of determining one.”); Baert v. Euclid Beverage, Ltd. , 149 F.3d 626, 633 (7th Cir. 1998) (“The ADA requires that employer and employee engage in an interactive process to determine a reasonable accommodation.”); Hendricks-Robinson , 154 F.3d at 693 (“The



### < reasonable accommodation’ element of the [the ADA] imposes a duty upon employers to engage in a flexible, interactive proc ess with the disabled employee (continued...) - 36 - Guidance, at 8 (“To request accommodation, an individual may use 

### < plain English’ and need not mention the ADA or use the phrase 

### < reasonable accommodation.’”). Once the employer’s responsibilities within the int eractive process are triggered by appropriate notice by the employee, bo th parties have an obligation to proceed in a reasonably interactive manner to de termine whether the employee would be qualified, with or without reasonable acco mmodations, for another job within the company and, if so, to identify an appro priate reassignment opportunity if any is reasonably available. The ob ligation to engage in an interactive process is inherent in the statutory ob ligation to offer a reasonable accommodation to an otherwise qualified disabled employee. The interactive process is typically an essential component of the process by which a reasonable accommodation can be determined. 1010 (...continued)

needing accommodation so that, together, they mightidentify the employee’s precise limitations and discuss accommodations whic h might enable the employee to continue working.”). Although there may be occa sions where a reasonable accommodation can be determined without an interactive process, typically the interactive process will be indispensable. Thus, a lthough in White , we stated that an interactive process was not a statutory requirem ent, 45 F.3d at 363, we agree with most of the circuits that have considered the issue that it is frequently an essential component of the statutory obligation to offer a reasonable accommodation to an otherwise qualified disabled employee. - 37 - The interactive process includes good-faith communi cations between the employer and employee. See Phoenixville , 1999 WL 184138, at *16 (“All the interactive process requires is that employers make a goodfaith effort to seek accommodations.”); Beck , 75 F.3d at 1135 (“A party that obstructs or delay s the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.”); Baert v. Euclid Beverage, Ltd. , 149 F.3d 626, 634 (7th Cir. 1998) (“[N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability.”). The exact shape of this interactive dialogue will n ecessarily vary from situation to situation and no rules of universal application can be articulated. See Jacques v. Clean-Up Group, Inc. , 96 F.3d 506, 515 (1st Cir. 1996). For example, in a small company an employee might be reasonably expected to know what other jobs are available for which he or she would be qualified to perform. On- 38 -

the other hand, in larger companies or companies wh ere the employee does not have ready access to information regarding availabl e jobs, it might be reasonable to require the employer to identify jobs that the e mployer reasonably concludes are appropriate for reassignment consideration. See EEOC Guidance, at 42-43 (“The employer is in the best position to know whic h jobs are vacant or will become vacant within a reasonable period of time.”); cf. Woodman v. Runyon , 132 F.3d 1330, 1343 (10th Cir. 1997) (“[T]he employ er has far greater access to information than the typical plaintiff, both about its own organization, and equally importantly, about the practices and structure of the industry as a whole.”). In the instant case, there is no dispute that Smith provided notice to Midland Brake of his skin condition and how it limi ted his performance in the light assembly department. However, there appears to be a genuine dispute about whether Smith suggested at least the possibility of a reassignment. Midland Brake asserts he did not, pointing to Smith’s sworn statement made in an initial application for social security disability benefits that he was “totally disabled and unable to work.” Smith asserts that he did, pointi ng in part to the testimony of Jon Anderson, the Health and Safety Coordinator wor king within the Human Resources Department for Midland Brake, that when S mith dropped by every week to pick up his temporary total disability chec k, Smith “expressed to me a- 39 -

desire to return to work,” and that Smith asked Anderson, “[H]ave you found some work for me to do?”, which was typically answe red with “I’m looking, and I’ll contact you as soon as I have something lined up.” For purposes of summary judgment on the record before us, there is enough t o conclude that Smith at least raised a genuine dispute of material fact on this i ssue, thereby triggering Midland Brake’s reasonable interactive duties. The district court found that Smith had failed to p rovide a medical release to return to work from his physicians, and it held that the ADA’s interactive process does not require an employer affirmatively to seek out a release for an employee who has previously been taken off work by his or her physician. Therefore, the district court concluded that summary judgment for Midland Brake was appropriate. We disagree that this provides an adequate basis for summary judgment on this record. There are no doubt cases in which the employee’s failure to provide a medical release is unreasonabl e, breaks down the interactive process, and thereby insulates the employer from ADA liability. See Templeton , 162 F.3d at 618-19 (where employer sent two letters requesting an updated Physician Certification regarding employee’s ability to return to work, and where employee refused to authorize her physician to rele ase the requested information, “the employee’s failure to provide medical informat ion necessary to the interactive process precludes her from claiming that the employer violated the- 40 -

ADA by failing to provide reasonable accommodation” ). On the other hand, there may be some cases in which it is reasonable f or the employer affirmatively to seek out a medical release from an employee or at least to clarify for the employee exactly what is required before the employ ee can be reassigned to a new position. Indeed, in Smith’s case, there appears to be genuine disputes about this very type of interactive exchange. For exampl e, Smith contends that Midland Brake had an existing company policy of pri ority reassignment of disabled employees to vacant positions. That polic y allegedly provided for discussions initiated by Midland Brake with the emp loyee’s physician to obtain a medical release. Additionally, Smith contends thatMidland Brake is to blame for any failure to obtain a medical release. Smith arg ues he was never made aware of any vacant positions in Midland Brake, and had he b een aware of such vacancies, his physicians might have released him to work in those new jobs. Also, Smith asserts that he was capable of filling a vacant dat a entry position in October 1992, and the only reason Midland Brake refused to reassign him was because no computer keyboard was available, not because of an absence of a medical release. Without deciding this record-intensive inquiry today, we note only that summary judgment would be premature if there is a g enuine dispute regarding whether Midland Brake participated in good faith in attempting to secure a reassignment position for Smith as part of its dutyto offer a reasonable- 41 -

accommodation to Smith. On remand, the district co urt should consider, among other things, whether Smith’s failure to obtain a m edical release was the result of any failure by Midland Brake to inform him of any v acancies; or the result of any undisclosed reliance by Midland Brake on the absenc e of a medical release; or perhaps whether Smith, in reliance on his near dataentry reassignment, may reasonably have believed no further medical release s were necessary, at least until a replacement job was located. However, it s hould be emphasized that here we are only addressing Smith’s potential ability to withstand summary judgment. Even if Midland Brake failed to fulfill its interac tive obligations to help secure a reassignment position, Smith will not be e ntitled to recovery unless he can also show that a reasonable accommodation was p ossible and would have led to a reassignment position. See Phoenixville , 1999 WL 184138, at *19 (“To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate,” inter alia, “the employ ee could have been reasonably accommodated but for the employer’s lack of good faith.”); Willis v. Conopco, Inc. , 108 F.3d 282, 285 (11th Cir. 1997) (holding that the employer’s failure to interact with the employee does not per se insulate the employee from losing on summary judgment because the employee mus t still prove that a reasonable accommodation could have been made).- 42 - 2. Reassignment is limited to existing jobs within th e company. It is not reasonable to require an employer to create a new job for the purpose of reassigning an employee to that job. See White , 45 F.3d at 362 (the ADA “does not require an employer . . . [to] create a new position to accommodate the disabled worker”); Still v. Freeport-McMoran, Inc., 120 F.3d 50, 53 (5th Cir. 1997) (employer has “no . . . statutory obligation [unde r the ADA] to create a new job for [the employee] at another location”); Smith v. Ameritech , 129 F.3d 857, 867 (6th Cir. 1997) (“The ADA does not require employers to create a new position for a disabled e mployee who can no longer perform the essential functions of his job.”); Gile , 95 F.3d at 499 (“Nor is an employer obligated to create a 

### < new’ position for the disabled employee.”);
Benson , 62 F.3d at 1114 (“The ADA does not require that [ the employer . . . create a new position.”); Willis v. Pacific Maritime Ass’n , 162 F.3d 561, 567 (9th Cir. 1998) (“In order for reassignment to a vacant position t o be reasonable, an existing position must be vacant: there is no dutyto create a new position for the disabled employee.”); Terrell v. USAir , 132 F.3d 621, 626 (11th Cir. 1998) (employer was not required to create a part-time po sition for employee where all part-time positions had already been eliminated from the company); Aka , 156 F.3d at 1305 (“[E]mployers are not required to . . . create a new position.”).- 43 - 3. The existing job must be vacant.

The ADA’s list of reasonable accommodations specifi cally refers to “reassignment to a vacant position.” Obviously the n, under the terms of the statute, if a position is not vacant it is not reas onable to require an employer to bump another employee in order to reassign a disabl ed employee to that position.
See White , 45 F.3d at 362 (“[T]he ADA does not require an employer to . . . reassign the employee to an occupied position.”); Eckles v. Consolidated Rail Corp. , 94 F.3d 1041, 1047 (7th Cir. 1996) (“[T]he suggestion that reassignment be to a vacant position suggests that Congress did not intend that other employees lose their positions in order to accommodate a disa bled coworker.”) (emphasis in original); H.R. Rep. No. 101-485(II), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345 (“The Committee also wishes to make clear [that] reassignment need only be to a vacant position -- “bumping” ano ther employee out of a position to create a vacancy is not requir ed.”); EEOC Guidance, at 39 (“The employer does not have to bump an employee fr om a job in order to create a vacancy; nor does it have to create a new positio n.”). Similarly, an existing position would not truly be vacant, even though it is not presently filled by an existing employee, if un der a collective bargaining agreement other employees have a vested priority ri ght to such vacant positions.- 44 -

See Milton v. Scrivner, Inc. , 53 F.3d 1118, 1125 (10th Cir. 1995) (noting that the employees’ suggestion of transfer is unreasonable b ecause, given their lack of seniority, their collective bargaining agreement pr ohibits transfer to any other job); Aldrich , 146 F.3d at 1271 n.5 (“[H]ad Boeing transferred A ldrich to any of the last three disputed jobs -- Maintenance Oiler, Assembler Sub-Assembly B, and Assembler Installer General B--it would have violat ed the seniority provisions of the collective bargaining agreement. This is not required by the ADA.”); see also Pacific Maritime Ass’n , 162 F.3d at 567 (“However, the positions [the emp loyees] requested were not 

### < vacant.’ The CBA provided that those jobs should b e assigned based on seniority. [The employees] couldnot transfer to these permanent light duty work positions because other e mployees with greater seniority were eligible for any opening . . . before either of them.”); Eckles , 94 F.3d at 1047 (“[U]nder a seniority system like that in place at [the employer], few positions are ever truly 

### < vacant’ in the sense of being unfilled. . . . [A] 

### < vacant position’ would essentially be one that an employee could acquire with his seniority and for which he could meet the job requirements.”); Feliciano , 160 F.3d at 787 (“[E]ven if [the employee] sought the p osition of clerical ward aide, that position was filled based upon seniority, barg aining unit membership, and current job classification.”). See also Kralik v. Durbin , 130 F.3d 76, 83 (3d Cir. 1997); Foreman v. Babcock & Wilcox Co. , 117 F.3d 800, 810 (5th Cir. 1997),- 45 -

cert. denied , 118 S. Ct. 1050 (1998); Cassidy , 138 F.3d at 634; Benson , 62 F.3d at 1114; Wooten v. Farmland Foods , 58 F.3d 382, 386 (8th Cir. 1995). Finally, “a vacant position” includes not only posi tions that are at the moment vacant, but also includes positions that the employer reasonably anticipates will become vacant in the fairly immediate future. See Monette , 90 F.3d at 1187 (“If, perhaps, an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee.”); see also EEOC Guidance, at 39 (“ 

### < Vacant’ means that the position is available when t he employee asks for reasonable accommodation, or thatthe employer knows that it will become available within a reasonable amount of time.”).

4. An employer need not violate other important fundamental policies underlying legitimate business interests

. Because reasonableness is our guide, there may be o ther important employment policies besides protecting rights guaranteed under a collective bargaining agreement that would make it unreasonabl e to require an employer to reassign a disabled employee to a particular job. For example, an industry may have a well entrenched seniority system which, even though not rooted in a collective bargaining agreement, is so well establi shed that it gives rise to- 46 -

legitimate expectations by other, more senior emplo yees to a job that the disabled employee might desire. Requiring an employer to di srupt and violate any such well-established reasonable expectations of seniori ty rights in order to favor a disabled employee in a job reassignment could, at l east under some circumstances, constitute a fundamental and unreaso nable alteration in the nature of the employer’s business. See Aka , 156 F.3d at 1305 (“An employer is not required to reassign a disabled employee in circumstances 

### < when such a transfer would violate a legitimate, nondiscriminatory polic y of the employer.’”) (quoting Dalton , 141 F.3d at 679); Dalton , 141 F.3d at 678 (“Nothing in the ADA requires an employer to abandon its legitimate, nondiscrimin atory company policies defining job qualifications, prerequisites, and ent itlements to intra-company transfers.”); Foreman , 117 F.3d at 810. There may be other such important employment polici es that it would not be reasonable for an employer to set-aside in orderto accomplish reassignment of a disabled employee. We neither attempt here to it emize all such policies that may exist nor comment upon such policies which may be so fundamental to the way an employer does business that it would be unreasonable to set aside. See Dalton , 141 F.3d at 679 (collecting cases). On the otherhand, other policies of an employer might have to be subordinated to an emp loyer’s reassignment obligation under the ADA because to do otherwise wo uld essentially vitiate the- 47 -

employer’s express statutory obligation to employ r eassignment as a form of reasonable accommodation. An obvious example would be where an employer has a policy against ever reassigning an employee t o other positions within the company. Such a policy, if allowed to trump the AD A, would read out of the act the provision that reassignment is one of the appro priate reasonable accommodations. See id. (“An employer cannot, of course, convert its responsibility to look to a 

### < broad range’ of jobs into a 

### < narrow band’ simply by adopting a 

### < no transfer’ policy.”); United States v. City and County of Denver , 943 F. Supp. 1304, 1310-11 (D. Col. 1996) (“If reas signment is only required where a reassignment policy already exists for all employees, there would be no need for the ADA to provide that it be available fo r people with disabilities. To the contrary, the ADA requires employers to move be yond the traditional analysis used to appraise non-disabled workers and to consid er reassignment to a vacant position as a method of enabling a disabled worker to do the job without creating undue hardship.” ); Leslie v. St. Vincent New Hope, Inc. , 916 F. Supp. 879, 887 (S. D. Ind. 1996) (“[T]he plain language of the ADA may require reassignment even if the employer does not have a regular policy or practice of permitting non-disabled employees to transfer.”); EEOC Guidanc e, at 41 (“[I]f an employer has a policy prohibiting transfers, it would have t o modify that policy in order to reassign an employee with a disability, unless it c ould show undue hardship.”).- 48 - 5. Reassignment does not require promotion.

The ADA is designed to prevent discrimination again st a qualified individual with a disability. It is not a statute giving rise to a right to advancement. Thus, the only positions that need to be considered for a reassignment are those that are not promotions. See White , 45 F.3d at 362 (“[T]he ADA does not require an employer to promote a disabled employee as an accommodation.”); Malabarba v. Chicago Tribune Co. , 149 F.3d 690, 699 (7th Cir. 1998) (“[A]n employer does not have to accommo date a disabled employee by promoting him or her to a higher level position.”); Cassidy , 138 F.3d at 634 (“[A] reassignment will not require . . . promoting the disabled employee.”); 29 C.F.R. Pt. 1630, App. § 1630.2(o) (“It should also be noted that an employer is not required to promote an individual with a disabi lity as an accommodation.”) (citing Senate and House Reports); EEOC Guidance, at 40 (“Reassignment does not include giving an employee a promotion. Thus, an employee must compete for any vacant position that would constitute a pro motion.”) (emphasis omitted). The employer should first consider lateral moves to positions that are regarded as equivalent. An employer may only consi der lesser jobs that constitute a demotion if there are no such equivalent positions available. See Cassidy , 138 F.3d at 634 (“An employer may reassign an emp loyee to a lower- 49 -

grade and paid position if the employee cannot be a ccommodated in the current position and a comparable position is not available .”); 29 C.F.R. Pt. 1630, App. § 1630.2(o) (“An employer may reassign an individua l to a lower graded position if there are no accommodations that would enable th e employee to remain in the current position and there are no vacant equivalentpositions for which the individual is qualified with or without reasonable accommodation.”); EEOC Guidance, at 40 (“If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level posit ion for which the individual is qualified.”).

6. Employers may choose the proffered reassignment .

So long as it is consistent with the above requirem ents, the employer is free to choose the reassignment that is to be offered to the qualified individual with a disability. If the disabled individual rejects that reassignment, the employer is under no obligation to continue offering other reas signments. The ADA does not entitle an employee to a free ranging or perpetual right to a new position within the company. It requires the employer to use reaso nable accommodation to keep the employee in his or her existing job, and if that cannot be accomplished, to use reasonable accommodation to offer a reassignment to another vacant job which- 50 -

that person would be qualified to perform with or w ithout a reasonable accommodation. Once the employer has offered such a reassignment, its duties have been discharged. See Kiel v. Select Artificials, Inc. , 169 F.3d 1131, 1137 (8th Cir. 1999) (en banc) (“If more than one accomm odation would allow the individual to perform the essential functions of th e position, 

### < the employer providing the accommodation has the ultimate discre tion to choose between effective accommodations, and may choose the less e xpensive accommodation or the accommodation that is easier for it to provide. ’”) (quoting 29 C.F.R. Pt. 1630, App. § 1630.9); Stewart v. Happy Herman’s Cheshire Bridge, Inc. , 117 F.3d 1278, 1285-86 (11th Cir. 1997) (“[The ADA’s] use of the w ord 

### < reasonable’ as an adjective for the word 

### < accommodate’ connotes that an employer is not requi red to accommodate an employee in any manner in which thatemployee desires. This is so because the word 

### < reasonable’ would be rendered superfluous in the AD A if employers were required in every instance to provid e employees the maximum accommodation or every conceivable accommodation po ssible. . . . Stated plainly, under the ADA a qualified individual with a disability is not entitled to the accommodation of her choice, but only to a reas onable accommodation.”) (internal quotations and citations omitted); 29 C.F .R. § 1630.9(d) (“[I]f a [qualified individual with a disability] rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary t o enable the individual to11 Two Courts of Appeals have tied this issue into th e “otherwise qualified

individual with a disability” language. That is, w hen an employee refuses one reasonable accommodation, that person is no longer considered a “qualified individual with a disability.” See Hankins v. The Gap, Inc. , 84 F.3d 797, 802 (6th Cir. 1996); Schmidt v. Methodist Hosp. of Indiana, Inc. , 89 F.3d 342, 344-45 (7th Cir. 1996). - 51 - perform the essential functions of the position hel d or desired, and cannot, as a result of that rejection, perform the essential fun ctions of the position, the individual will not be considered a qualified indiv idual with a disability.”). 11 See also Baert , 149 F.3d at 633 (“An employer is not obligated to provide an employee the accommodation he or she requests or pr efers . . . .”); Aka , 156 F.3d at 1305 (same).

7. Employer need offer only a reassignment as to whi ch the employee is qualified with or without reasonable accommodation.

It would not be reasonable to require an employer t o reassign an employee to a position for which he or she is not otherwise qualified with or without reasonable accommodation, or to require a redefinit ion of the essential requirements of a vacant job so as to bring it with in the qualification of a disabled employee. Although some “job restructuring” may be required, see 42 U.S.C. § 12111(9), if the job restructuring goes to the mo dification of essential job requirements and is substantial, it is not required . See Milton , 53 F.3d at 1124- 52 -

(“An employer is not required by the ADA to realloc ate job duties in order to change the essential functions of a job.”).

8. “Undue hardship” limitation.

Finally, no reassignment need be offered if it woul d create an “undue hardship” on the employer. See 42 U.S.C. §§ 12112(5)(A), 12111(10). We have already defined the term “undue hardship” in Rascon v. U.S. West Communications, Inc. , 143 F.3d 1324, 1334 (10th Cir. 1998), in which we stated: “Undue hardship” means an action requiring signific ant difficulty or expense when considered in light of various factors . The factors to be considered in determining whether an accommodation would cause an employer undue hardship are, among others: the nat ure and cost of the accommodation; the number of persons employed by t he company; the financial resources of the company; and the impactof the accommodation upon the operation of the company. Id. (quotations and citations omitted). That definiti on by necessity requires a case-by-case analysis and upon remand it will certa inly be available to Midland Brake to argue that any reassignment of Smith creat es an undue hardship. * * * This framework, using well-defined principles that have evolved under the ADA, is a starting point for defining the contours of Midland Brake’s obligation to offer the accommodation of reassignment within the context of the factual12 The purpose of a burden shifting approach is a bitdifferent in an ADA

Failure to Accommodate case. In such a case, the C ongress has already determined that a failure to offer a reasonable acc ommodation to an otherwise qualified disabled employee is unlawful discrimination. See 42 U.S.C. § 12111(b)(5)(A) (“the term 

### < discriminate’ includes . . . not making reasonable accommodations. . .”). Thus, we use the burden-shi fting mechanism, not to probe the subjective intent of the employer, but rather s imply to provide a useful structure by which the district court, when conside ring a motion for summary judgment, can determine whether the various parties have advanced sufficient evidence to meet their respective traditional burde ns to prove or disprove the reasonableness of the accommodations offered or notoffered. See White , 45 F.3d at 361 n.6. - 53 - claims being asserted by Smith . What is “reasonable” and what is an “undue hardship” of necessity has a heavy factual componen t and will have to be determined in the first instance by the district co urt on remand.

III. Summary Judgment Framework We apply the foregoing principles in the context of summary judgment by invoking the familiar burden shifting approach set forth in McDonnell Douglas Corp. v. Greene , 411 U.S. 792 (1973). 12 That burden shifting approach has been specifically adopted to ADA claims for failure reas onably to accommodate the disabled employee. White v. York Int’l Corp. , 45 F.3d 357, 360-61 (10th Cir. 1995). The approach that we adopted in White needs only minor modification to address the specific subset of reasonable accommodation that constitutes “reassignment to a vacant position.”- 54 -

To survive summary judgment on an ADA claim of fail ure to accommodate by offering reassignment to a vacant position, the employee initially bears the burden of production with respect to a prima facie case. For the employee to make such a prima facie case, he or she must make a n initial showing that: (1) The employee is a disabled person within the mea ning of the ADA and has made any resulting limitations from his or her disability known to the employer; (2) The preferred option of accommodation within the employee’s existing job cannot reasonably be accomplished. (3) The employee requested the employer reasonably t o accommodate his or her disability by reassignment to a vacant posit ion, which the employee may identify at the outset or which the employee may request the employer identify through an interactiv e process, in which the employee in good faith was willing to, ordid, cooperate; (4) The employee was qualified, with or without reas onable accommodation, to perform one or more appropriate v acant jobs within the company that the employee must, at the t ime of the summary judgment proceeding, specifically identify and show were available within the company at or about the time t he request for reassignment was made; and- 55 -

(5) The employee suffered injury because the employe r did not offer to reassign the employee to any appropriate vacant pos ition. Once the employee produces evidence sufficient to m ake a facial showing on his or her prima facie case, the burden of produ ction shifts to the employer to present evidence either (1) conclusively rebutting one or more elements of plaintiff’s prima facie case or (2) establishing an affirmative defense, such as undue hardship or one of the other affirmative defe nses available to the employer.
See 42 U.S.C. § 12113; 29 C.F.R. § 1630.15. If the employer does either of the above, summary judgment will be appropriate for the employer unless the employee then presents evidence establishing a genu ine dispute regarding the affirmative defenses and/or rehabilitating any chal lenged elements of his or her prima facie case sufficiently to establish at leasta genuine dispute of material fact as to such challenged elements. After considering the submissions by both sides on summary judgment, if there remains genuine evidence supporting each elem ent of the employee’s prima facie case and, if need be, disputing the employer’ s affirmative defenses, summary judgment for the employer should be denied and the matter must proceed to trial. At trial, it will be the employe e’s burden to prove that he or she was a qualified individual with a disability; that the preferred option of accommodation within the employee’s existing job ca nnot reasonably be- 56 -

accomplished; that he or she had requested reassign ment to a vacant position as a reasonable accommodation; that he or she was qualif ied, with or without reasonable accommodations, to perform one or more s pecific vacant jobs shown at trial to have existed within the company at or a bout the time that the request for reassignment was made; and that the employee suffer ed injury because the employer did not offer reassignment to the employee to an appropriate vacant position within the company. Here, the record establishes a genuine dispute of m aterial fact regarding whether Smith sufficiently invoked the interactive process and, if so, whether Midland Brake adequately responded to a request forreassignment. Thus, summary judgment on the record before us was inappr opriate on that issue. We do not, of course, suggest that summary judgment mi ght not be appropriate upon a different record or upon a different issue in this or other ADA cases where the plaintiff seeks reassignment as a remedy. Althoughreasonableness is the underlying qualifier on an employer’s duty to reass ign, there may be cases where, for example, the record is clear that the employee failed to take the necessary steps to initiate or participate in the interactive process or there may be cases where reassignment would be unreasonable as a matte r of law, and in those cases summary judgment would be appropriate for the emplo yer. For example, an employer might be entitled to summary judgment if t he record established that- 57 -

reassignment would violate a collective bargaining agreement, or would constitute a promotion, or would be to a position to which the employee is not qualified, with or without reasonable accommodation. On the o ther hand, there may be cases where it is undisputed that the interactive p rocess was adequately initiated by the employee and the facts are undisputed that t he employer failed in its burden to offer reassignment as a form of reasonabl e accommodation. In such a situation, summary judgment might be appropriate fo r the employee. Just because reasonableness is the touchstone of this obligationdoes not shield a reassignment claim from summary judgment any more than does the reasonableness standard shelter other courses of action from a traditional summary judgment inquiry. See,
e.g., Meyer v. Conlon , 162 F.3d 1264, 1273-74 (10th Cir. 1998) (affirmin g summary judgment for insurer in suit for breach of duty of good faith and fair dealing in insurance contracts where the underlying facts do not suggest conduct going beyond “a reasonable denial” of an insurance claim) (per curiam); Hollingsworth v. Hill , 110 F.3d 733, 740-42 (10th Cir. 1997) (affirming summary judgment for a sheriff’s deputy, finding him entitl ed to qualified immunity because it was “objectively reasonable” for an offi cer in the defendant’s position to believe that his actions were constitutional). On remand, the parties are free to raise such other claims, factual or legal, as may s upport summary judgment, and- 58 -

the district court may then be required to considersuch claims, consistent with the standards announced in this opinion.

IV. Conclusion

We REVERSE the district court order granting summary judgment and we REMAND this matter to the district court for furthe r consideration consistent with this opinion.No. 96-3018, Robert W. Smith v. Midland Brake, Inc. , a Division of Echlin, Inc.

KELLY , Circuit Judge, joined by BALDOCKand BRORBY , Circuit Judges, concurring in part and dissenting in part. I concur in the court’s opinion that a “qualified i ndividual with a disability” under the Americans with Disabilities Act (ADA) inc ludes an employee who with or without reasonable accommodation can perform a r eassigned job, even though the employee is unable to perform his existing job. I dissent from the court’s opinion concerning the scope of the reassignment ri ght, specifically that such an employee has a right to be reassigned to a vacant p osition, regardless of whether other more qualified individuals are seeking the po sition. Generally, an employer is required to make a reason able accommodation unless it can demonstrate undue hardship. See 42 U.S.C. § 12112(b)(5)(A). Determining a reasonable accommodation almost alway s will require communication between the parties. See 29 C.F.R. § 1630.2(o)(3). The ADA contains several measures of reasonable accommodati on that should be considered. Reassignment to a vacant position is one of them. See 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii). Reassignment to a vacant position ordinarily will be preceded by consideration of the other measures that will allow an existing employee to perform the essential funct ions of his or her job. See 29 C.F.R. App. § 1630.2(o). Like all of the measures described as examples of reasonable accommodation, however, reassignment is an option that depends upon the facts and circumstances. Contrary to the court’s view, merely because-2-

discrimination under the ADA may include not making reasonable accommodation, the measures described as examples o f reasonable accommodation do not become mandatory in every case –such an approach would read out the words “may include” that precede the n onexclusive list of examples of reasonable accommodation. See 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2). Where the employer chooses to reas sign a disabled employee no longer able to perform the essential functions of h is job, the employer obviously has made a decision that benefits the employer and the employee. Reassignment rather than termination should be the rule when a v acant position will not be advertised or filled based upon applications or bid s. The more difficult question confronting the court i s whether such an employee, minimally qualified for a position that o thers are interested in, must be awarded the position because of his or her disabili ty. To be sure, the employee is a qualified individual with a disability, but that status is not sufficient to confer a preference for a vacant position that the employer would like to fill competitively. Courts must resist the temptation t o “improve” upon Congress’s work. Rather, the ADA complements existing federal and state laws that encourage an employer to consider all persons on th eir merits. So long as a person with a disability can perform the essential functions of the vacant job with or without reasonable accommodation, that person, l ike all others, should be1 In discussing the term “qualified individual with adisability,” the

legislative history makes it clear that the ADA was never intended to create a preference: [T]he Committee intends to reaffirm that this legi slation does not undermine an employer’s ability to choose and maint ain qualified workers. This legislation simply provides that emp loyment decisions must not have the purpose or effect of subjecting aqualified individual with a disability to discrimination on t he basis of his or her disability. Thus, under this legislation an employer is still f ree to select applicants for reasons unrelated to the existence o r consequence of a disability. For example, suppose an employer has a n opening for a typist and two persons apply for the job, one being an individual with a disability who types 50 words per minute and the other being an individual without a disability who types 75 words per minute. The employer is permitted to choose the applicant with the higher typing speed, if typing speed is necessary for successful performance on the job. On the other hand, if the two applicants are an ind ividual with a hearing impairment who requires a telephone heads et with an amplifier and an individual without a disability, b oth of whom have the same typing speed, the employer is not permitte d to choose the individual without a disability because of the need to provide the needed reasonable accommodation to the person with the disability. In the above example, the employer would be permitt ed to reject the applicant with a disability and choose t he other applicant for reasons not related to the disability or to the accommodation or otherwise not prohibited by this legislation. In o ther words, the employer’s obligation is to consider applicants andmake decisions without regard to an individual’s disability, or th e individual’s need for a reasonable accommodation. But, the employer has no (continued...) -3- afforded equal consideration without regard to disability, perceived or otherwise. Congress made this abundantly clear. See H.R. Rep. No. 101-485 (II), at 55-56 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 337-338. 1 The court’s response to1 (...continued)

obligation under this legislation to prefer applica nts with disabilities over other applicants on the basis of disability. H.R. Rep. No. 101-485 (II), at 55-56 (1990), reprinted in1990 U.S.C.C.A.N. 303, 337-338. Any approach that allows preferences for current disabled employees in reassignment situations conflicts with this clear s tatement. -4- this uniform legislative history is that it (1) onl y applies to initial applicants, (2) only confirms that an employer need not modify the essential functions of a job, and (3) is trumped by another reference, infran.3, recognizing that reassignment can be beneficial to the employer and employee. Ye t, the language is not so limited. It reaffirms that “this legislation,” i.e. , the ADA, does not interfere with “an employer’s ability to choose and maintain quali fied workers,” nor interfere with an employer’s applicant selection “for reasons unrelated to the existence or consequence of a disability,” nor create an obligat ion for an employer “to prefer applicants with disabilities over other applicants on the basis of disability.” H.R. Rep. No. 101-485 (II), at 55-56 (1990), reprinted i n 1990 U.S.C.C.A.N. 303, 337-338. Surely requiring an employer to reassign an existing employee to a vacant position, regardless of other more qualified applicants, ignores these

concerns. The ADA was enacted pursuant to a finding that disability discrimination “denies people with disabilities the opportunity to compete on an equal basis and pursue those opportunities for which our free socie ty is justifiably famous,” 42-5-

U.S.C. § 12101(a)(9) (findings) (emphasis supplied)

. We have recognized that merely because reassignment should be considered as a reasonable accommodation, it does not require the employer to promote, reassign to an occupied position, or create a new position. See White v. York Int’l Corp. , 45 F.3d 357, 362 (10th Cir. 1995). The Seventh Circui t has discussed the underlying rationale for this rule:

[W]e have been unable to find a single ADA or Rehab ilitation Act case in which an employer has been required to reassign a disabled employee to a position when such a transfe r would violate a legitimate, nondiscriminatory policy of the employe r, . . . and for good reason. The contrary rule would convert a non discrimination statute into a mandatory preference statute, a resu lt which would be both inconsistent with the nondiscriminatory aims o f the ADA and an unreasonable imposition on the employers and cow orkers of disabled employees. Dalton v. Subaru-Isuzu Automotive, Inc. , 141 F.3d 667, 679 (7th Cir. 1998). AccordDuckett v. Dunlop Tire Corp. , 120 F.3d 1222, 1225 (11th Cir. 1997) (per curiam). Other cases reinforce that any potential reasonable accommodation must accord with the fair and impartial consideration de served by all individuals, be they current employees or applicants. In Daughertyv. City of El Paso , 56 F.3d 695 (5th Cir. 1995), the Fifth Circuit rejected the idea that reassignment as a reasonable accommodation required the employer to f ind the employee another part-time position–to succeed on an ADA claim, the employee would have prove-6-

that he was treated differently than other displace d employees because of his disability. See id. at 700. The court stated: [W]e do not read the ADA as requiring affirmative a ction in favor of individuals with disabilities, in the sense of requ iring that disabled persons be given priority in hiring or reassignmentover those who are not disabled. It prohibits employment discrimi nation against qualified individuals with disabilities, no more an d no less. Id. The court rejected the notion that the employer h ad any obligation to reasonably accommodate part-time employees with rea ssignment given a city policy that preferred full-time employees over part -time employees in filling vacancies. See id. at 699-700. The Second Circuit has considered this issue in the context of an injured employee seeking reassignment to a position with a different supervisor. See Wernick v. Federal Res. Bank of N.Y. , 91 F.3d 379 (2d Cir. 1996). The court concluded that working with the assigned supervisorwas an essential function of the employee’s job, and then rejected the suggestio n that the employer had an affirmative duty to reassign: [N]othing in the law leads us to conclude that in e nacting the disability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy. Cong ress intended simply that disabled persons have the same opportun ities available to them as are available to nondisabled persons. . . . [T]he [employer] only had an obligation to treat her in the same man ner that it treated other similarly qualified candidates. Id. at 384-85.-7-

Finally, the Eleventh Circuit rejected the idea that another potential reasonable accommodation, “part-time or modified wo rk schedules,” 42 U.S.C. § 12111(9)(B), required such schedules where the employer had phased out such positions. See Terrell v. USAir , 132 F.3d 621, 626 (11th Cir. 1998). Responding to the obvious inequity of preferring a disabled employee over a nondisabled employee whose part-time job had been phas ed out, the court stated: The ADA was never intended to turn nondiscriminatio n into discrimination.

. . . . We cannot accept that Congress, in enacting the ADA , intended to grant preferential treatment for disabl ed workers. Id. at 627. Given the controversial nature of prefere nces in employment, courts have been understandably reluctant to read one into the ADA that is at odds with the qualified language of the statute and its legis lative history. See Aka v. Washington Hosp. Ctr. , 156 F.3d 1284, 1314-15 (D.C. Cir. 1998) (en banc) (Silberman, J., dissenting) (“If the Congress had i ntended to grant a preference to the disabled–a rather controversial notion–it wouldcertainly not have done so by slipping the phrase “reassignment to a vacant posit ion” in the middle of this list of reasonable accommodations.”). The court faults reliance on the above cases becaus e they reject reassignment for reasons other than the existence o f a more qualified applicant for a competitive position. Be that as it may, these c ases do discuss reassignment as-8-

a remedy and uniformly reject it for reasons that s hould inform our judgment about the scope of the right. Stated another way, those reasons are equally applicable here. Whether we defer to an employer’s legitimate nondiscriminatory reason for not reassigning (which su rely could include merit selection), or emphasize that the ADA does not create a preference, the scope of the right has been narrow. See , e.g. , Dalton , 141 F.3d at 679-80 (no duty to reassign to temporary positions or light-duty progr am); Duckett , 120 F.3d at 1225 (upholding business policy against certain types of transfers); Wernick , 91 F.3d at 384-85 (rejecting suggestion that employer had a re sponsibility to provide an employee another job for which she was qualified be cause affirmative action not required); Daugherty , 56 F.3d at 700 (upholding city’s policy of favori ng fulltime employees over part-time employees). We shoul d be wary of adopting a reassignment right that unquestionably will affect employer operations and the rights of other employees. Cf. Aka , 156 F.3d at 1305 n.29. Although the court expresses concern that not creating a preference fo r a reassignment position would encourage an employer to shirk all forms of r easonable accommodation,

see Ct. Op. at 24 n.6 & 29, such an employer strategy would not be very successful given an employer’s burden of productionon any inability to accommodate and the employee’s opportunity to rebutsuch a showing. See White , 45 F.3d at 361.2 None of the cases the court relies upon directly ad dress a situation

where an employer has other qualified applicants an d would like to choose the most qualified for the vacant position–most simply indicate that an employer either has a duty or may have a duty to reassign su bject to a myriad of exceptions, all such exceptions endorsed by this court. See Mengine v. Runyon , 114 F.3d 415, 418-19 (3d Cir. 1997); Gile v. United Airlines , Inc. , 95 F.3d 492, 498-99 (7th Cir. 1996); Monette v. Electronic Data Systems Corp. , 90 F.3d 1173, 1187 (6th Cir. 1996); Benson v. Northwest Airlines, Inc. , 62 F.3d 1108, 1114-15 (8th Cir. 1995); Community Hosp. v. Fail , 969 P.2d 667, 677-78 (Colo. 1998). The D.C. Circuit inferred that because cases discussing reassignment have not mentioned a requirement that a plaintiff show he orshe would have been granted a reassignment position over other qualified applic ants, such a requirement does not exist. See Aka , 156 F.3d at 1304. Because courts do not decide w hat is not before them, it is not surprising that such a requi rement has not yet developed. -9- The court concludes that the reassignment provisionmeans “more than a duty merely to consider without discrimination a di sabled employee’s request for reassignment along with all other applications the employer may receive from other employees or job applicants for a vacant posi tion.” See Ct. Op. at 15; Aka ,156 F.3d at 1304-05. 2 While it is true that the statute does not read “consideration of a reassignment to a vacant positi on,” id. at 15, all of the measures described are examples of reasonable accom modation that may be appropriate. All are subject to the legitimate and nondiscriminatory policies of the employer. Thus, the phrase “may include reassi gnment to a vacant position” cannot mean “shall include reassignment to a vacantposition.” Though the court acknowledges that “various accommodations may or may not be appropriate depending upon the disability and other circumstanc es of employment,” Ct. Op. at-10-

24 n.7, it fails to give effect to this observation insofar as it imposes a mandatory duty to reassign an otherwise qualified individual with a disability, subject to an employer’s defense of undue hardship. See 42 U.S.C. §§ 12112(b)(5)(A); 12111(10). The court also suggests that because the ADA already prohibits discrimination upon application for a vacant positi on, the reassignment provision must confer an additional right to avoid redundancy . See Ct. Op. at 16-17; Aka , 156 F.3d at 1304. Under the court’s rationale, bec ause the general prohibition on disability discrimination speaks to the “terms, con ditions, and privileges of employment,” 42 U.S.C. § 12112(a), all of the poten tial reasonable accommodations, such as job restructuring and part- time or modified work schedules, confer greater rights upon current emplo yees vis-a-vis the employer than mere applicants have. We know that this is no t the case. See White , 45 F.3d at 362; see also H.R. Rep. No. 101-485 (II), at 62-63, reprinted in 1990 U.S.C.C.A.N. 303, 344-45 (discussing part time or m odified work schedules as a reasonable accommodation for individuals). Moreover, other equally plausible reasons exist forthe reassignment provision. First, it precludes an employer from a blanket ban on reassignments.
See Dalton , 141 F.3d at 679; H.R. Rep. No. 101-485 (II), at 5 8, reprinted in1990 U.S.C.C.A.N. 303, 340. Second, it protects a disab led employee seeking3 The legislative history suggests that considerationof other forms of

accommodation should precede consideration of reass ignment: Reasonable accommodation may also include reassignm ent to a vacant position. If an employee, because of disabi lity, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and [th e] employer from losing a valuable worker. Efforts should be m ade, however, to accommodate an employee in the position that he or she was hired to fill before reassignment is considered. The Committee also wishes to make clear the reassignment need only be to a vacan t position–“bumping” another employee out of a positi on to create a vacancy is not required. H.R. Rep. No. 101-485 (II), at 63, reprinted in 1990 U.S.C.C.A.N. 303, 345. Accord29 C.F.R. App. § 1630.2(o) (1998). The court conc ludes that the last sentence indicates that Congress intended that the reassignment right give a disabled employee a preference for a vacant positio n over other applicants. See Ct. Op. at 26-27; Aka , 156 F.3d at 1304. Such a reading is tempered by the preceding sentence which indicates that reassignmen t need only be “considered.” -11- accommodation via reassignment from being deemed le ss qualified for, and thus not reassigned to, a vacant position on the basis o f his or her disability. Third, it makes it express that an employer may reassign whenother efforts at reasonable accommodation are not availing, and still be in compliance with the ADA. 3 The reassignment provision can be read in harmony with the statute and its legislative history. The EEOC’s Interpretive Guidance to the c ontrary, see EEOC Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act at 44 (1999), is not entitled to s pecial deference, particularly where it conflicts with the language of the ADA and its legislative history. See-12-

Sutton v. United Air Lines, Inc. , 130 F.3d 893, 899 n.3, 902 (10th Cir. 1997), cert. granted , 119 S. Ct. 790 (1999). Finally, the complexity that surrounds the explicat ion of the court’s new rule undercuts its practical utility both for the d istrict court and an employer. The numerous exceptions attest to its transparency–the new rule is swallowed up by its exceptions. The district court’s task on summary j udgment will be daunting–it may be far easier to try cases that would have been candidates for summary judgment absent this decision. See Celotex Corp. v. Catrett , 477 U.S. 317, 323- 24 (1986) (summary judgment is designed to isolate factually unsupported claims). Perhaps there will be fewer such claims, however, because an employer reading the court’s opinion likely would feel compe lled to reassign a disabled employee rather than attempt to understand its obli gations pertaining to the interactive process or the scope of “appropriate” c onsiderations. Because a level playing field is what Congress and the President envisioned when the ADA was enacted, not a preference, I respe ctfully dissent on this issue. I would remand the case to the panel for further co nsideration of the ADA claim in light of the above principles.* After examining the briefs and the appellate record , this three-judge panel

has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 13 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT W. SMITH,

Plaintiff - Appellant,

v. MIDLAND BRAKE, INC., a division of Echlin, Inc.,

Defendant - Appellee.

--------------------------- EQUAL EMPLOYMENT ADVISORY COUNCIL, Amicus Curiae. No. 96-3018

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D. Ct. No. 94-4165-DES)

Submitted on the briefs: * Les E. Diehl, of Goodell, Stratton, Edmonds & Palme r, Topeka, Kansas, for Plaintiff-Appellant.- 2 -

James Allan Smith, Daniel M. Shea, and Craig P. Sie genthaler, of Smith, Currie & Hancock, Atlanta, Georgia, and Mary Kathleen Babc ock, of Foulston & Siefken Law Offices, Wichita, Kansas, for Defendant-Appelle e. Douglas S. McDowell, Ann Elizabeth Reesman, and Ell en Duffy McKay, of McGuiness & Williams, Washington, DC, filed an amic us curiae brief for the Equal Employment Advisory Council.

Before TACHA , BALDOCK , and BRISCOE , Circuit Judges.

TACHA , Circuit Judge.

Plaintiff Robert Smith alleges that his former empl oyer, defendant Midland Brake, Inc., terminated his employment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 etseq. , the Age Discrimination in Employment Act, 29 U.S.C. § 621 etseq. , and Kansas state law on retaliatory discharge. The district court entered summary judg ment for the defendant on all claims. Plaintiff appeals the order of summary jud gment. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
BACKGROUND Between 1986 and 1993, plaintiff Robert Smith was e mployed by the defendant, Midland Brake, Inc., in a light assemble r position. During this time, plaintiff experienced problems with chronic dermati tis on his hands as well as some muscular injuries. As a result, his physician s placed restrictions on his work activities and on several occasions ordered hi m to stop working for limited- 3 -

periods. The defendant attempted to accommodate pl aintiff’s limitations by assigning him to duties within the light assembly d epartment that involved less lifting and less exposure to irritants and by provi ding him compensation claim for the dermatitis on May 8, 1992. From May 6, 1992, until the time of his termination, plaintiff was on a leave of absence an d was receiving workers’ compensation benefits. On March 3, 1993, defendantagreed to pay plaintiff $20,000 to settle his workers’ compensation claim f or the dermatitis. On or about the same date, defendant terminated the plaintiff’s employment with Midland Brake, citing an inability to accommodate his skin sensitivity. The parties dispute exactly what happened between M ay 1992 and March 1993. Mr. Smith alleges that Midland Brake had a p olicy of giving employees who became disabled and could not perform their cur rent positions priority over other employees for reassignment to open positions. He contends that there were numerous job openings at Midland Brake that should have been made available to him and asserts that defendant either could have ob tained or did obtain releases from his physician for him to work in those positio ns. Midland Brake, on the other hand, contends that it made efforts to return plaintiff to work in different positions at the company but was unable to obtain awritten release from plaintiff’s physician allowing him to return to wor k.1 In his amended complaint, plaintiff also asserted violations of the Kansas

state counterparts to the ADA and the ADEA, but he has not pursued those claims on appeal. - 4 - On September 7, 1994, plaintiff filed a complaint i n the United States District Court for the District of Kansas. In his complaint, plaintiff asserted that he was discharged in violation of the Americans wit h Disabilities Act (ADA), 42 U.S.C. § 12101 etseq. , and the Age Discrimination in Employment Act (ADE A), 29 U.S.C. § 621 etseq . 1 In addition, plaintiff asserts that, in violation of Kansas law and public policy, he was discharged in retaliation for pursuing his workers’ compensation claim. The district court entered sum mary judgment for the defendant on each of these claims. We hold that pl aintiff has failed to establish a prima facie case under either the ADA or the ADEA, and affirm on each of those claims as discussed below. We also affirm the entry of summary judgment on the retaliatory discharge claim.
DISCUSSION We review a district court’s grant of summary judgm ent de novo. See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). Summary judgm ent is appropriate if the record shows that there is no ge nuine issue as to any material fact and that the moving party is entitled to judgm ent as a matter of law. See id. ; Fed. R. Civ. P. 56(c). “[T]he mere existence of som e alleged factual dispute between the parties will not defeat an otherwise pr operly supported motion for- 5 -

summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). “‘Where the record taken as a whole could not lead a ration al trier of fact to find for the non-moving party,’ summary judgment in favor of the moving party is proper.” Thomas v. IBM , 48 F.3d 478, 484 (10th Cir. 1995) (quoting Matsus hita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)).
1. ADA Claim The ADA prohibits employers from discriminating aga inst qualified individuals with disabilities, because of the disab ilities, in regard to hiring, advancement, discharge, or other terms, conditions, or privileges of employment.
See 42 U.S.C. § 12112(a). To prevail on a claim of di scriminatory discharge under the ADA, a plaintiff must establish (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, i .e. , with or without reasonable accommodation, he is still able to perform the esse ntial functions of his job; and (3) that his employer fired him because of his disa bility. See White v. York Int’l Corp. , 45 F.3d 357, 360-61 (10th Cir. 1995). A person i s considered disabled within the meaning of the ADA if he has “a physical or mental impairment that substantially limits one or more of [his] major lif e activities.” 42 U.S.C. § 12102(2)(A). For the purposes of this appeal, we w ill assume that Mr. Smith is disabled within the meaning of the ADA. Nonetheles s, we find that he is unable- 6 -

to set out a prima facie case under the ADA because he is unable, even with reasonable accommodation, to perform the essential functions of his job. To be protected under the ADA, a plaintiff must dem onstrate that he is a “qualified individual with a disability.” 42 U.S.C . §§ 12111(8), 12112(a). This inquiry is twofold: First, we must determine whether the individual cou ld perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if . . . we conclude that the individual is not able to perform the esse ntial functions of the job, we must determine whether any reasonable a ccommodation by the employer would enable him to perform those f unctions. White , 45 F.3d at 361-62 (citations omitted); see also 42 U.S.C. § 12111(8) (defining “qualified individual with a disability”) . Mr. Smith does not allege that he can perform the essential functions of his job i n the light assembly department. In fact, he admits that because of his chronic derm atitis, his physicians considered him “permanently disabled” and unfit to work in that department. See Pl.’s First Am. Compl., Appellant’s App. Vol. I, Ex. A, at ¶ 16 . Furthermore, Mr. Smith has not alleged that there are any reasonable accommodations that would enable him to perform the essential functions of his job. Thu s, it is undisputed that Mr.2 “As an administrative interpretation of the Act b y the enforcing agency,

[EEOC guidelines], while not controlling upon the c ourts by reason of their authority, do constitute a body of experience and i nformed judgment to which courts and litigants may properly resort for guidan ce.” Meritor Sav. Bank v. Vinson , 477 U.S. 57, 65 (1986) (citations and internal qu otation marks omitted).

3 All our references to the C.F.R. are to the 1997 e dition current at the time this opinion was drafted. The regulations we cite have not changed in any significant way since they were first promulgated i n 1991 and 1992. See 29 C.F.R. Pt. 1614 (stating that source of Part 1614 i s 57 Fed. Reg. 12646, Apr. 10, 1992, unless otherwise noted); id. Pt. 1630 (stating that source of Part 1630 is 56 Fed. Reg. 35734, July 26, 1991, unless otherwise no ted). - 7 - Smith is not a “qualified individual with a disabil ity” as that term is used in the ADA. There is no genuine issue as to this material fact. Mr. Smith does not contest that he is no longer qua lified for his old job, and he does not seek reinstatement to that position . Instead, he argues that the defendant is required, as a reasonable accommodatio n to his skin condition, to reassign him to another position at the company, ou tside of the light assembly department. We disagree. Under the ADA and the corresponding guidelines prom ulgated by the Equal Employment Opportunity Commission (EEOC) 2 , a reasonable accommodation may include reassignment to a vacant position. See 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2 (o)(2)(ii) (1997). 3 The guidelines state that, “In general, reassignment should be considered only when accommo dation within the individual’s current position would pose an undue h ardship [to the employer].” 29 C.F.R. Pt. 1630, App. § 1630.2(o); see also id. at Pt. 1630, App. § 1630.2(p)4 We note, however, that reassignment is treated dif ferently under section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791, which prohibits federal agencies from discriminating against disabled indiv iduals. See generally Woodman v. Runyon , 132 F.3d 1330 (10th Cir. 1997). We discuss this aspect of the Rehabilitation Act in greater detail later in t his opinion.

5 As a result, it is unnecessary for us to reach the question of whether plaintiff is qualified for the other positions to w hich he seeks reassignment. - 8 - (defining undue hardship as “significant difficultyor expense in, or resulting from, the provision of the accommodation”). In oth er words, reassignment can be used as a means of accommodating a disabled employe e when accommodating him in his current position is possible , but difficult for his employer. It follows that when it is not at all possible to accommodate an employee in his current position, there is no obligation to reassign. 4 Here, it is undisputed that after the plaintiff’s doctor ordered him to stop working in M ay 1992, no amount of accommodation would have made him qualified for his job in the light assembly department. Thus, Midland Brake is not obligated u nder the ADA to transfer plaintiff to another position. 5 In arguing that his employer should have accommodat ed him by reassigning him to a new position, plaintiff misconstrues the n ature and purpose of the ADA. The Act is designed to combat discrimination agains t qualified disabled employees. See 42 U.S.C. § 12101 (congressional findings and purp ose of the ADA); id. at § 12112 (general rule prohibiting discriminatio n against qualified individuals with disabilities). The Act does not r equire employers to6 The dissent takes issue with our citation of Forem an , stating that “the

court [in Foreman ] concluded plaintiff was not a qualified individua l under the ADA with respect to his current job, but nonetheles s went on to consider whether reassignment could reasonably accommodate him.” This summary of the Fifth Circuit’s decision implies that the court felt it h ad to examine the possibility of reassignment for a plaintiff who could not perform his old job. The Foreman court, however, reached several alternative conclusions, holding against Foreman on three separate grounds. The court first found th at Foreman was not disabled. See Foreman , 117 F.3d at 804-807. Then, in the part of the op inion to which we refer above, the court “[a]lternatively ” held that Foreman did not show that he was a qualified individual under the ADA. Id. at 807-09. Finally, the court also determined, as a third alternative holding, that Fo reman failed to show the reassignments he requested would be reasonable acco mmodations. See id. at 809- 10. Thus, the Fifth Circuit examined reassignment not because it believed it was required to do so, but rather because it chose to d o so as a third means of holding against the plaintiff. See id. at 809 (“[E]ven if Foreman was disabled and qualified under the ADA, his requested accommodatio ns are not reasonable.” (emphasis added)). - 9 - accommodate every employee who becomes disabled, bu t rather, only those who are still capable, with reasonable accommodation if necessary, of performing the essential functions of their jobs in spite of theirdisabilities— i.e. , qualified individuals with disabilities. The ADA does not pr ohibit an employer from terminating an individual who can no longer perform the essential functions of his position even with reasonable accommodation. Such individuals fall outside the scope of the Act’s protection. See Foreman v. Babcock & Wilcox Co. , 117 F.3d 800, 807-09 (5th Cir. 1997) (concluding that workerwho could not perform essential functions of his current job and sought r eassignment was not a qualified individual within the meaning of the ADA). 6 “[T]he duty of reasonable- 10 -

accommodation does not encompass a responsibility t o provide a disabled employee with alternative employment when the emplo yee is unable to meet the demands of his present position.” Myers v. Hose , 50 F.3d 278, 284 (4th Cir. 1995); but see Gile v. United Airlines , 95 F.3d 492, 498 (7th Cir. 1996) (holding that ADA may obligate employer to reassign disabledemployee who can no longer, even with reasonable accommodation, perform the essential functions of her job). The ADA “prohibits employment discrimination against qualified individuals with disabilities, no more and no less. ” Foreman , 117 F.3d at 810 (citations and internal quotation marks omitted); s ee also Wernick v. Federal Reserve Bank , 91 F.3d 379, 384 (2d Cir. 1996) (“[In enacting th e disability statutes,] Congress intended simply that disabled p ersons have the same opportunities available to them as are available to nondisabled persons.”); Daugherty v. City of El Paso , 56 F.3d 695, 700 (5th Cir. 1995) (“[W]e do not re ad the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled.”), ce rt. denied , 116 S. Ct. 1263 (1996). Requiring employers to reassign disabled e mployees who no longer can perform their old jobs to substantially different p ositions goes beyond fighting discrimination. In the absence of clear direction from Congress, we decline to give the ADA the expansive interpretation advocated by plaintiff. See- 11 -

Southeastern Community College v. Davis , 442 U.S. 397, 411 (1979) (noting that Congress “knew how to provide for [affirmative acti on] in those instances where it wished to do so”). Of course, employers are free to voluntarily reassi gn employees to new positions even when the ADA does not require them t o do so. Plaintiff next asserts that Midland Brake “had an existing companypolicy of priority reassignment of disabled employees to vacant positi ons,” Appellant’s Br. at 21, and urges us to find an ADA violation because his e mployer allegedly failed to follow its own policy in his case. He argues that the ADA requires employers to follow their own policies for dealing with injured workers, even when those policies exceed the explicit requirements of the AD A. In support of this position, plaintiff points to School Board v. Arline , 480 U.S. 273 (1987), a Rehabilitation Act case in which the Supreme Court stated, in a fo otnote: Although [employers] are not required to find anoth er job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment oppo rtunities reasonably available under the employer’s existing policies. Id. at 289 n.19 (citations omitted). This dicta simpl y states the obvious: employers cannot discriminate against disabled empl oyees by preventing them from applying for other positions on the same basis as non-disabled individuals.- 12 -

It also recognizes that, as a matter of administrat ive law, a governmental employer’s failure to follow its own policies may g ive rise to an alternative claim, even when a claim under the disabilities statutes c annot succeed. See Guillot v.
Garrett , 970 F.2d 1320, 1327 (4th Cir. 1992) (interpreting Arline passage to mean, at most, that “government agencies and departments must abide by their own regulations and existing statutes”); Carter v. Tisc h , 822 F.2d 465, 468-69 (4th Cir. 1987) (rejecting plaintiff’s Rehabilitation Act cla im, but noting possible alternative claim that federal agency acted in arbi trary and capricious manner by terminating him). We decline to interpret the Arli ne footnote in a way that would impose an affirmative obligation on a private emplo yer to find a new position for the disabled employee. Absent proof of discrimination as defined by the ADA, an employer’s failure to follow its own internal po licies does not in itself constitute a violation of the ADA. “While [an empl oyer] is free to exceed the requirements of the ADA in fashioning its policies regarding disabled employees, such policies are not the definitive source of the standard by which reasonable accommodation is measured under federal law.” Myer s v. Hose , 50 F.3d 278, 284 (4th Cir. 1995). To hold otherwise would discourag e employers from developing their own plans for going beyond what federal law r equires. “Employers should not be discouraged from doing more than the ADA req uires even if the extra effort that perhaps raises an applicant’s expectati ons does not work out.”7As it was originally enacted in 1973, the Rehabili tation Act did not

mention reassignment at all. See Gonzagowski v. Widnall , 115 F.3d 744, 748 (10th Cir. 1997). In 1992, Congress amended the Re habilitation Act to conform to the ADA’s standards for employment discriminatio n, incorporating by (continued...) - 13 - Sieberns v. Wal-Mart Stores, Inc. , 125 F.3d 1019, 1023 (7th Cir. 1997); see also Vande Zande v. Wisconsin Dept. of Admin. , 44 F.3d 538, 545 (7th Cir. 1995) (“[I]f the employer . . . goes further than the law requires . . . , it must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation.”). Moreover, Mr. Smith’s allegation that his employer reassigned other disabled employees do es not demonstrate discrimination based on disability. When all emplo yees to which plaintiff compares himself are disabled, there is no logical inference of discrimination.
See Myers , 50 F.3d at 284. Our decision that the ADA regulations do not requir e Midland Brake to reassign Mr. Smith is bolstered by a comparison of the EEOC regulations promulgated under section 501 of the Rehabilitation Act of 1973, Pub. L. No. 93- 112, 87 Stat. 357 (codified as amended at 29 U.S.C. § 701 etseq. ). The Rehabilitation Act prohibits discrimination againstdisabled employees by federal agencies, see 29 U.S.C. § 791 (codifying section 501 of the Act) , and by programs receiving federal financial assistance, see 29 U.S.C. § 794 (codifying section 504 of the Act). 7Section 501 requires federal agencies to develop affirmative action7 (...continued)

reference the ADA’s inclusion of reassignment as a possible reasonable accommodation. See 29 U.S.C. §§ 791(g), 794(d); Gonzagowski , 115 F.3d at 748.

8 The notion that ADA claims and section 501 claims cannot always be resolved according to the same standards is recogni zed in the Rehabilitation Act itself, in the very provision that generally requir es the cases to be resolved consistently. The Act specifies that ADA standards are to be applied in section 501 “non affirmative action employment discrimination” cases , 29 U.S.C. 791(g) (emphasis added), implying that the same standards should not necessarily govern (continued...) - 14 - programs for the hiring, placement, and advancementof individuals with disabilities. See 29 U.S.C. § 791(b). By contrast, neither section 504 of the Rehabilitation Act nor the ADA creates such affirmative action obligations. “It is well established both by the statutory language and Supreme Court decisions interpreting the [Rehabilitation] Act that federal employers have greater duties to accommodate disabled workers under section 501 thanthe duties owed by federal grantees under section 504 or those owed by employe rs under the ADA.” Woodman v. Runyon , 132 F.3d 1330, 1343 (10th Cir. 1997). Thus, whil e the ADA and the Rehabilitation Act generallyare to be interpreted and applied consistently with one another, see 29 U.S.C. §§ 791(g), 794(d); 42 U.S.C. §§ 12117(b), 12201(a); White , 45 F.3d at 360 n.5, the standards used to determi ne whether a federal employer has violated section 501 of the Rehabilitation Act will not always be identical to those employed in suits brought under section 504 or under the ADA. 8 See , e.g. , Southeastern Community College , 442 U.S. at 410-8 (...continued)

in cases that implicate the affirmative action obli gations of federal employers. - 15 - 411; Woodman , 132 F.3d at 1343. In particular, this court rece ntly noted that “the meaning of reasonable accommodation . . . may vary due to the heightened duties ascribed to federal employers under section 501.” Woodman , 132 F.3d at 1338; see also id. at 1339 n.8. In recognition of the federal employer’s heightened duties toward disabled individuals, the EEOC has promulgated rules for rea sonable accommodation under section 501 that are stricter than those prom ulgated under the ADA. According to these regulations, “[w]hen a nonprobat ionary [federal] employee becomes unable to perform the essential functions o f his or her position even with reasonable accommodation due to a handicap, an agen cy shall offer to reassign the individual to a funded vacant position” for whi ch the individual is qualified, unless doing so would impose an undue hardship on the agency. 29 C.F.R. § 1614.203(g) (emphasis added). Thus, section 501 of the Rehabilitation Act “imposes an obligation on the federal employer to o ffer reassignment” to employees who cannot perform their old jobs. Gonza gowski , 115 F.3d at 748. In this way, the Rehabilitation Act regulations differfrom the ADA regulations, which do not expressly mandate reassignment in thos e circumstances. We find this difference significant. Section 1614.203(g) s hows that the EEOC knows how9 I.e. , “In general, reassignment should be considered on ly when

accommodation within the individual’s current posit ion would pose an undue hardship.” 29 C.F.R. Pt. 1630, App. § 1630.2(o). - 16 - to make reassignment mandatory when it wants to do so. Cf. Southeastern Community College , 442 U.S. at 411 (determining that Congress did no t intend to impose affirmative action obligations in section 50 4 and noting that Congress “knew how to provide for [affirmative action] in th ose instances where it wished to do so”). Because clear instructions of the sortfound in section 1614.203(g) are absent from section 1630.2(o), we find it unlikely that the EEOC intended reassignment to be mandatory under the ADA, except under the limited circumstances we describe above. The dissent faults us for focusing on “one isolatedsentence” 9 of the EEOC guidelines and accuses us of overlooking later lang uage which states: “An employer may reassign an individual to a lower grad ed position if there are no accommodations that would enable the employee to re main in the current position and there are no vacant equivalent positions for wh ich the individual is qualified . . . .” 29 C.F.R. Pt. 1630, App. § 1630.2(o). This language, however, simply confirms that an employer mayalways voluntarilyreassign an employee who can no longer perform her old job because of a disabili ty. The discretionary or permissive nature of this provision becomes even mo re clear when contrasted10 Even in those cases where the ADA may require the employer to consider

reassignment as a reasonable accommodation, there a re limits to the employer’s obligation. For example, an employer is not requir ed to create a new position for the plaintiff or to bump another employee in order to create a vacancy. See White , 45 F.3d at 362. - 17 - with the mandatory language, “shall offer to reassign,” found in section 1614.203(g) of the guidelines. See 29 C.F.R. § 1614.203(g). For these reasons, we affirm the district court’s e ntry of summary judgment for the defendant on Mr. Smith’s ADA claim. We hol d that under the ADA, when a plaintiff is not qualified, even with reasonable accommodation, for the job which he currently holds (or, as here, from which h e was terminated), the employing entity has no obligation to consider reas signing him to another position. Under the current EEOC guidelines, the e mployer’s obligation to consider reassignment arises only if the employer c an accommodate the employee in his current position, but would experience undue hardship in doing so. 10
In conclusion of our discussion of Mr. Smith’s ADA claim, we note that the district court seems to have relied at least in part on an estoppel theory when it entered summary judgment for the defendant. See Smith v. Midland Brake , 911 F. Supp. 1351, 1357-61 (D. Kan. 1995). The distric t court pointed out that Mr. Smith had sought disability benefits from the Socia l Security Administration (SSA) several times between October, 1992, and Apri l, 1993, certifying that he was “totally disabled and unable to work.” Id. at 1356. Eventually, he was11 Mr. Smith ultimately opted not to take the disabi lity benefits after being

informed by the SSA that he would benefit financial ly by declining the award of disability benefits and accepting early retirement benefits instead. - 18 - granted the benefits he sought. 11 We wish to make clear that under the law of this circuit, Mr. Smith is not judicially estopped from now making claims that are inconsistent with his prior representations to the SSA. See United States v. 49.01 Acres of Land , 802 F.2d 387, 390 (10th Cir. 1986) (“The Tenth Ci rcuit . . . has rejected the doctrine of judicial estoppel.”). Hen ce, any reliance by the district court on an estoppel theory was misplaced. We rely directly on the language of the Act and the accompanying EEOC regulations. The precise impact, if any, of prior SSA representations on a plaintiff’s ADA clai m is still an open question in this circuit and one that we do not decide today. For a discussion of how other circuits have handled the issue, see Talavera v. Sc hool Board , 129 F.3d 1214, 1217-1220 (11th Cir. 1997).
2. ADEA Claim Mr. Smith next claims that Midland Brake terminated him in violation of the ADEA. To establish a claim of age discriminati on under the ADEA, a plaintiff must show that (1) he was within the prot ected age group at the time of the discharge; (2) he was doing satisfactory work; (3) he was discharged; and (4) his position was filled by a younger person, or he was treated less favorably than younger employees. See Gonzagowski v. Widnall , 115 F.3d 744, 749 (10th Cir.- 19 -

1997). Mr. Smith meets the first requirement becau se he was 62 years old at the time of his termination. See 29 U.S.C. § 631(a) (extending protection of ADEA to individuals between 40 and 70 years of age). Ho wever, he fails the second prong of the test. As discussed above, Smith conce des that he was unable to continue working in the light assembly department a s of May, 1992, and it is undisputed that he did not work for Midland Brake at all between May 1992 and the time of his discharge in March 1993. Thus, he cannot meet the requirement of “satisfactory work.” The ADEA does not require emp loyers to provide any sort of accommodations for employees who become unable t o perform their jobs. We agree with the district court’s holding that there is no genuine issue of material fact as to the plaintiff’s ADEA claim and affirm th e grant of summary judgment in favor of the defendant on that claim. 3. Retaliatory Discharge Claim Finally, Mr. Smith claims that, in violation of Kan sas law and public policy, the defendant terminated him in retaliation for his filing of workers’ compensation claims. Again, the undisputed fact th at Mr. Smith was unable to perform his old job is dispositive. Under Kansas l aw, an employee with a workers’ compensation claim may be lawfully dischar ged and cannot maintain a retaliatory discharge action if he is unable to per form his work. See Rowland v. Val-Agri, Inc. , 766 P.2d 819, 822 (Kan. Ct. App. 1988) (rejecting retaliatory- 20 -

discharge claim of employee who could no longer per form his job). Plaintiff’s physical inability to perform the job from which he was terminated precludes him from prevailing on a retaliatory discharge claim. Thus, we affirm the entry of summary judgment for defendant on the retaliatory d ischarge claim.
CONCLUSION Mr. Smith concedes that he is unable to perform the job from which he was terminated. Because he cannot perform the essentia l functions of that position, with or without reasonable accommodation, he does n ot qualify for protection under the ADA. Furthermore, his undisputed inabili ty to perform his job prevents him from establishing a prima facie case of age dis crimination under the ADEA and also prevents him from claiming he was illegall y discharged in retaliation for his worker’s compensation claim. Thus, we AFFIRM the district court’s entry of summary judgment for the defendant on plaintiff’s A DA claim, his ADEA claim, and his claim of retaliatory discharge.No. 96-3018, Smith v. Midland Brake, Inc.

BRISCOE, Circuit Judge, concurring and dissenting:

I concur in the majority’s conclusion that the dist rict court correctly rejected Smith’s ADEA and state law retaliatory dis charge claims. After some additional clarification, I also agree with the maj ority’s conclusion that the district court erred in concluding Smith was judici ally estopped from bringing his ADA claim because he filed a claim for social secur ity disability. However, I respectfully dissent from the majority’s conclusionthat under the ADA, when a plaintiff is not qualified, e ven with reasonable accommodation, for the job which he currently holds . . ., the employing entity has no obligation to consider reassigning hi m to another position. Under the current EEOC guidelines, the employer’s o bligation to consider reassignment arises only if the employer can accomm odate the employee in his current position, but would experience undue hardship in doing so. I would conclude the ADA requires an employer to co nsider reassignment to a vacant position when the employee cannot perform hi s current job at all or can only perform it with accommodation that poses undue hardship to the employer. There is no statutory language, legislative history , case law, or administrative interpretation limiting reassignment to employees w ho can perform their current jobs only with accommodations that cause the employ er undue hardship. The majority’s conclusion is contrary to the statut ory language of the ADA. The ADA prohibits discrimination in employment agai nst qualified individuals-2-

with disabilities. Title 42 U.S.C. § 12112(a) prov ides no employer covered by the Act “shall discriminate against a qualified individ ual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, emp loyee compensation, job training, and other terms, conditions, and privileg es of employment.” The ADA defines discrimination to include “not making reaso nable accommodations to the known physical or mental limitations of an otherwis e qualified individual with a disability who is an applicant or employee,” unless the employer can demonstrate the accommodation would impose an undue hardship onthe operation of its business. 42 U.S.C. § 12112(b)(5)(A). See Lowe v. Angelo’s Italian Foods, Inc. , 87 F.3d 1170, 1174 (10th Cir. 1996). Title 42 U.S. C. § 12111(9)(B) provides examples of reasonable accommodation: The term “ reasonable accommodation” may include--

. . . (B) job restructuring, part-time or modified work s chedules, reassignment to a vacant position , acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qu alified readers or interpreters, and other similar accommodations for individuals with disabilities. (Emphasis added.) Title 42 U.S.C. § 12111(8) defin es a qualified individual with a disability as one who, with or without reasonable accommodation, can perform1 The EEOC regulations use the same language. Like the statute, 29 C.F.R.

§ 1630.2(m) uses the phrase “the employment positio n such individual . . . desires,” and subsection (o) expressly provides that reasonable accommodation may include reassignment to a vacant position. -3- the essential functions of “the employment position that such individual holds or desires.” 1 The phrase “the employment position that such indiv idual . . . desires” is broad enough to include vacant positions available for reassignment to current employees as well as positions sought by applicants . Thus, under the plain language of the ADA, an employee who is unable to p erform the essential functions of the job he currently holds with or wit hout reasonable accommodation, but who is able to perform the essen tial functions of a vacant position with or without reasonable accommodation, is a qualified individual with a disability. See Daugherty v. City of El Paso , 56 F.3d 695, 698-99 (5th Cir. 1995). In Daugherty , the city argued because plaintiff could no longerperform his current job, he was not a qualified individual with a disability and the city had no duty to accommodate him by reassignment to a vac ant position. The court rejected the city’s argument: Contrary to the city’s position, we do not read the statutory reference to employment an individual “desires” as applicable on ly to job applicants. Instead, we read this language as extending to indi viduals like Daugherty who are already employed and then become disabled, since the broad prohibition against discrimination found in 42 U.S. C. § 12112(a) extends not only to hiring and job application procedures, but to advancement,2 The court went on to conclude it would be unduly burdensome for the

city to reassign Daugherty because the city chartergave part-time employees like Daugherty lower priority than full-time employees t o vacant positions. 56 F.3d at 699-700. -4- discharge of employees, “and other terms, condition s, and privileges of employment.” 56 F.3d at 699. 2 The majority notes the EEOC’s interpretive guidelin es are not controlling authority, see Meritor Savings Bank v. Vinson , 477 U.S. 57, 65 (1986), but treats one isolated sentence in the guidelines as determin ative of this reassignment issue: “In general, reassignment should be conside red only when accommodation within the individual’s current position would pose an undue hardship [to the employer].” 29 C.F.R. § 1630.2(o) (App.). However , the guidelines go on to state: “An employer may reassign an individual to a lower graded position if there are no accommodations that would enable the e mployee to remain in the current position and there are no vacant equivalentpositions for which the individual is qualified with or without reasonable accommodation.” Id. It is clear from this second statement that the EEOC also regar ds reassignment as an option if the employee cannot perform his current job at a ll. The majority reads this language to mean employers may voluntarily reassign employees who are unable to perform their jobs because of disability. The second statement says nothing about what employ ers may voluntarilydo, but-5-

rather it limits what employers may do; it permits an employer to r eassign an employee to a lower-graded position only if there are no accommodations that would enable the employee to remain in his current position and there are no vacant equivalent positions for which the employee is qualified. If such vacant equivalent positions exist, the employer cannot rea ssign the employee to a lowergraded position but must reassign the employee to avacant equivalent position. Read together, and in light of the statutory langua ge and purpose of the ADA, the guidelines’ discussion of the ADA’s expres s statutory reassignment provision shows the EEOC interprets the ADA as requ iring an employer to consider reassignment when the employee cannot perf orm his current job at all or can only perform it with accommodation that poses u ndue hardship to the employer. This is the interpretation in the EEOC’s own Title I Technical Assistance Manual (1992). Section I-3.10(5) provid es:

Reassignment to a Vacant Position In general, the accommodation of reassignment should be conside red only when an accommodation is not possible in an em ployee’s present job, or when an accommodation in the employee’s present job would cause an undue hardship . Reassignment also may be a reasonable accommodat ion if both employer and employee agree that this is more appropriate than accommodation in the present job.

. . . . Reassignment may be an appropriate accommodation wh en an employee becomes disabled, when a disability become s more severe, or when changes or technological developments in equip ment affect the job performance of an employee with a disability. If there is no accommodation that will enable the person to perfor m the present job, or if3 See also the example in Section I-3.4: “If an employee who se job

requires driving loses her sight, reassignment to avacant position that does not require driving would be a reasonable accommodation , if the employee is qualified for that position with or without an acco mmodation.” The EEOC booklet, Your Responsibilities As An Employer(1992), advises employers that “[w]hen an employee with a disability is unable to perform her present job even with the provision of a reasonable accommodation, y ou must consider reassigning the employee to an existing position that she can p erform with or without a reasonable accommodation.” -6- it would be an undue hardship for the employer to p rovide such accommodation, reassignment should be considered

.

. . . . Reassignment should be made to a position equivalent to the one presently held in terms of pay and other job status , if the individual is qualified for the position and if such a position i s vacant or will be vacant within a reasonable amount of time. . . . An employer may reassign an individual to a lower graded position if there are no accommodations that would enable the e mployee to remain in the current position and there are no positions vacant or soon to be va cant for which the employee is qualified (with or withou t an accommodation). 3 The interpretation in Daughertyand in the Technical Assistance Manual is consistent with the statutory language and legislat ive history of the ADA. The legislative history of the ADA indicates Congress i ntended reassignment to be an option whenever a disability renders an employee un able to perform his current job. Reasonable accommodation may also include reassignm ent to a vacant position. If an employee, because of his disability, can no longer perform the essential functions of the job that she or he h as held, a transfer to another vacant job for which the person is qualifie d may prevent the employee from being out of work and the employer fr om losing a valuable worker. Efforts should be made, however, to accomm odate an employee in the position that he or she was hired to fill befor e reassignment is-7-

considered. The Committee also wishes to make clea r the reassignment need only be to a vacant position--“bumping” anothe r employee out of a position to create a vacancy is not required. H.R. Rep. No. 485(II), at 63 (1990) (emphasis added ). See also S. Rep. No. 116 at 6 (1989). This interpretation is consistent with the structur e of the ADA. There is no basis for distinguishing between an employee who cannot perform his current job at all, even with reasonable accommodation, and one who can perform his current job only with accommodation that poses undue hardsh ip to the employer. Under the ADA, the employer is not obligated to accommodate either employee in his

currentposition. However, reassignment to a vacant posit ion is one of the many potential reasonable accommodations expressly liste d in the statute. This interpretation is also consistent with the exp ressed intent of Congress that the same standards should apply in determining whether the employment provisions of the Rehabilitation Act and the ADA have been violated. See 42 U.S.C. §§ 12117(b) and 12201(a). Before the 1992 amendments, the Rehabilitation Act, unlike the ADA, did not express ly provide that reasonable accommodation may include reassignment to a vacant position. The 1992 amendments incorporated the ADA standards on employ ment discrimination. See 29 U.S.C. §§ 791(g) and 794(d). The regulations implementing the amendments expressly provide for reassignment when an employee becomes unable to perform-8-

the essential functions of his or her job even with reasonable accommodation.
See 29 C.F.R. § 1614.203(g); see also Woodman v. Runyon , 132 F.3d 1330, 1338- 39 (10th Cir. 1997). That is the ADA standard. In White v. York Int’l Corp. , 45 F.3d 357, 361-62 (10th Cir. 1995), this court recognized reasonable accommodation under the ADA, but did not limit its applicability to situations where the employee coul d perform his current job only with accommodation that imposes undue hardship on the employer. In White , the employee was unable to perform his current or forme r jobs at all, but the court did not reject reassignment for that reason. Instead, the court rejected reassignment as a reasonable accommodation because the employer established there were no vacant equivalent positions the employee could perf orm. See also Milton v. Scrivner, Inc. , 53 F.3d 1118, 1124-25 (10th Cir. 1995) (plaintiff s unable to perform essential functions of current jobs failed to establish transfer to other positions was reasonable accommodation because theyfailed to show equivalent jobs were vacant and because they were not entitled to transfer under collective bargaining agreement). As in White , we should look first to whether Smith can performthe essential functions of the job he held when he beca me disabled, with or without reasonable accommodation. If he cannot, we should then look to possible-9-

reassignment to another position and whether he cou ld perform the essential functions of that position with or without reasonab le accommodation. Moreover, as argued by Smith, some of the authorityrelied on by the majority is suspect. In Myers v. Hose , 50 F.3d 278, 284 (4th Cir. 1995), an ADA case, the court stated: “This circuit has made it clear . . . that the duty of reasonable accommodation does not encompass a respo nsibility to provide a disabled employee with alternative employment when the employee is unable to meet the demands of his present position.” The Mye rs court cited Guillot v.
Garrett , 970 F.2d 1320, 1326 (4th Cir. 1992), a Rehabilitation Act case which held reasonable accommodation under the pre-1992 ve rsion of the Act did not include reassignment to a vacant position. In Myer s , the court appeared simply to follow Guillotwithout considering the statutory language of the ADA and its differences with the language of the pre-1992 Act. See Gile v. United Airlines,
Inc. , 95 F.3d 492, 498 (7th Cir. 1996). However, in Wi lliams v. Channel Master Satellite Systems, Inc. , 101 F.3d 346, 350 n.4 (4th Cir. 1996), cert. deni ed , 117 S. Ct. 1844 (1997), the court explained Myers did not hold that reassignment to a vacant position can never be a reasonable accommodation under the ADA, noting such a conclusion would be contrary to congressiona l direction. To the extent Myers stands for the proposition that reassignment canno t be a reasonable accommodation under the ADA, it should not be follo wed in this circuit.-10-

In Foreman v. Babcock & Wilcox Co. , 117 F.3d 800 (5th Cir. 1997), the court concluded plaintiff was not a qualified indiv idual under the ADA with respect to his current job, but nonetheless went on to consider whether reassignment could reasonably accommodate him. The court concluded reassignment of a worker who could not perform his old job was not a reasonable accommodation because it would violate other worker s’ rights under a collective bargaining agreement and because the worker failed to show any of the requested positions were vacant or that he was otherwise qual ified for them. 117 F.3d at
810. We have found no other court that has recognized re assignment as a reasonable accommodation and then adopted the limit ation on reassignment adopted by the majority. See , e.g. , Gile , 95 F.3d 492; Benson v. Northwest Airlines, Inc. , 62 F.3d 1108, 1114-15 (8th Cir. 1995); Haysman v. Food Lion,
Inc. , 893 F. Supp. 1092, 1103 (S.D. Ga. 1995); see also , Aka v. Washington Hospital Center , 116 F.3d 876, 890, vacated and rehearing en banc granted124 F.3d 1302 (D.C. Cir. 1997). Contrary to the majority’s suggestion, requiring employers to accommodate disabled employees by reassignment to vacant positi ons does not constitute affirmative action beyond the congressional intent of the ADA. The majority relies on Southeastern Community College v. Davis , 442 U.S. 397 (1979), where-11-

the Court held the Rehabilitation Act does not requ ire employers to take affirmative action in favor of disabled employees t hat would fundamentally alter employers’ programs. However, in Alexander v. Choate , 469 U.S. 287, 300 n.20 (1985), the Court distinguished between affirmative action that would require fundamental changes in a recipient’s program and an employer’s affirmative obligation under the Act to provide changes that wo uld be reasonable accommodations. In School Board of Nassau County v . Arline , 480 U.S. 273, 289 n.19 (1987), another Rehabilitation Act case, the C ourt explained: “Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee.” Under the Act in effect at that time, employers were “not required to find another job for an employee w ho is not qualified for the job he or she was doing,” but could not “deny an employ ee alternative employment opportunities reasonably available under the employ er’s existing policies.” Id. This case arises under the ADA, not the pre-1992 Re habilitation Act. The ADA expressly prohibits discrimination against a qu alified employee with a disability and defines discrimination to include “n ot making reasonable accommodations to the known physical or mental limi tations” of the employee unless the employer can demonstrate the accommodati on would impose an undue hardship. 42 U.S.C. § 12112(b)(5)(A). Unlike the pre-1992 Rehabilitation Act, the ADA expressly provides reasonable accommodationincludes reassignment to-12-

a vacant position. Under the express terms of the ADA, failure to offer an employee whose disability renders him unable to per form his current job reassignment to a vacant position he is qualified t o perform is prohibited discrimination. Holding an employer liable for that failure is not affirmative action beyond what Congress intended, but merely en forcement of the express statutory prohibition against discrimination by fai lure to make reasonable accommodation. Requiring employers to reassign disabled employees who can no longer perform their old jobs to vacant positions they can perform is not preferential treatment beyond the congressional intent of the AD A. In Daugherty , the city manager testified that reassigning plaintiff, who w as a part-time worker, to a fulltime position for which a full-time worker had prio rity under the city charter would likely have led to a lawsuit by the full-time employee. The court’s statement that the ADA does not require that disabl ed persons be given priority in reassignment over those who are not disabled must b e read in this context. Daughertyholds there is no duty to accommodate disabled emp loyees by reassigning them to positions to which other employ ees have a prior claim. Under those circumstances, reassignment would allow a dis abled employee to “bump” a worker with a prior claim to the position, which is contrary to the intent of-13-

Congress. Daughertyis inapplicable where no other employee has a prio r claim to a position to which a disabled employee seeks re assignment. Here, there is no city charter giving other employe es priority to positions and there is no evidence of a collective bargaining agreement. Reassigning Smith to a vacant position would not give him priority ov er any other employee who is not disabled. I agree with the majority that Smith is not estoppe d from bringing his ADA claim. However, because the employer had the duty to provide reasonable accommodation by reassigning Smith to a vacant posi tion for which he was qualified, it is necessary to decide the effect of Smith’s statements in support of his social security disability claim. Here, Smith’ s representation that he was “totally disabled and unable to work” does not by i tself justify summary judgment for the employer on the ground that Smith was not q ualified for any of the vacant positions he identified. Total disability within the meaning of the Social S ecurity Act is not inconsistent with being qualified under the ADA fora job with one employer that could be specifically tailored for the employee thr ough reasonable accommodation. A person is disabled when he is notqualified for jobs that exist in significant numbers in the national economy. 42 U.S.C. § 423(d). Reasonable accommodation is not taken into account in determin ing social security disability.-14-

Moreover, the Act permits persons to receive disabi lity benefits while engaged in a period of trial work of up to nine months. 42 U. S.C. § 422(c). Smith’s statement that he was “totally disabled and unable to work” is relevant evidence of inability to work, but is not so conclusive as t o justify summary judgment when there is evidence he was able to perform particularpositions with the employer.
See Talavera v. School Board , 129 F.3d 1214, 1217-20 (11th Cir. 1997); Swanks v. Washington Metropolitan Area Transit Auth. , 116 F.3d 582, 586-88 (D.C. Cir. 1997). Because reasonable accommodation includes reassignm ent to a vacant position when an employee like Smith cannot perform his current job at all, and because Smith’s statement in support of his social security claim does not by itself justify summary judgment, resolution of this case requires examination of the record to determine whether he presented eviden ce that he could perform any of the identified vacant positions. Smith failed t o present evidence that he was physically able or otherwise qualified for many of the positions that became vacant between the time his dermatitis flared up in 1992 and his termination in March 1993. However, there was evidence he was phy sically able and otherwise qualified for at least two of the positions, a posi tion in “Flexisticks,” and a kit assembly position, both of which became vacant in J uly 1992.-15-

According to Jon Anderson, a registered nurse and M idland’s health and safety coordinator, Smith could have performed the essential functions of these two positions with some accommodation. Anderson te stified in his deposition that he did not offer these positions to Smith beca use Smith’s physician, Dr. Singer, rated Smith “unable to work” and had not re leased him to return to work. Anderson thought it would be futile to offer the po sitions to Smith in July because in June, Dr. Singer had not released him to work in light assembly and Smith had unsuccessfully tried to work in shipping. AlthoughDr. Singer had rated Smith “unable to work” on his reports to Midland, there w as evidence that Anderson and Dr. Singer interpreted the rating to mean Smith was unable to work at his old job and Dr. Singer was unaware of any other jobs Smith could perform with Midland. An “unable to work” rating did not in this case rul e out other work. Ordinarily, when a disabled employee’s doctor labeled an employ ee “unable to work,” Anderson would contact the doctor if a position bec ame available that Anderson thought the employee could perform. Whether Smith was qualified for or could perform the positions that became vacant in July wa s a question of material fact. Midland points out the ADA did not take effect unti l July 26, 1992, and argues any statutory obligation it has to consider reassignment extends only to positions vacant after that date. See Smith v. United Parcel Service of America,
Inc. , 65 F.3d 266 (2d Cir. 1995); O’Bryant v. City of M idland , 9 F.3d 421 (5th-16-

Cir. 1993). The Flexisticks and kit assembly posit ions became vacant in July and there is evidence that at least one of the position s remained vacant after the effective date of the ADA. Failure to consider rea ssignment to a position that remained vacant after the effective date could be aviolation of the ADA. Midland also argues any obligation it has to consid er reassignment extends only to positions that become vacant very shortly a fter an employee becomes disabled. The EEOC’s interpretative guidelines state reassignment should be considered only if “the position is vacant within areasonable amount of time.” The guidelines go on to state a reasonable amount o f time should be determined “in light of the totality of the circumstances,” an d give as an example a position that becomes vacant a week after a disabled employe e requested reassignment. 29 C.F.R. § 1630.2(o) (App.). Here, the two positions in question became vacant approximately two months after Smith became unable to perform his old job. While this is considerably longer than the one-weekexample, it is not necessarily an unreasonably long time in light of the totality of the circumstances. According to Cathy Lynch, Midland’s human resources director, it was not uncommon for employees like Smith, who were on workers’ compensation leave, to return to work after a year, and it was company policy to loo k for vacant positions that injured employees could perform. The company did i n fact continue to look for alternative positions for Smith long after May 1992 . An issue of material fact-17-

remains as to whether it is reasonable to require M idland to consider reassigning Smith to either of the two positions that became va cant in July. I would reverse the summary judgment in favor of Mi dland on Smith’s ADA claim. I am in agreement with the balance of t he majority’s opinion.