PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TRAVIS DUVALL, Plaintiff-Appellant,

v. GEORGIA-PACIFIC CONSUMER PRODUCTS, L.P., a foreign limited partnership, f/k/a Georgia-Pacific Corporation, Defendant-Appellee. No. 08-7096

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 07-CV-00315)

Jonathan E. Shook of Shook & Johnson, P.L.L.C., Tulsa, Oklahoma, for PlaintiffAppellant. Sabrina Presnell Rockoff (Randall D. Avram, with her on the brief) of Kilpatrick Stockton, LLP, Raleigh, Nort h Carolina (Thomas D. Roberts on of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C ., Tulsa, Oklahoma, with her on the brief), for DefendantAppellee.

Before MURPHY, EBEL, and HARTZ, Circuit Judges.

EBEL , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### June 9, 2010

Elisabeth A. Shumaker Clerk of Court- 2 - In this appeal, we are as ked to decide when a position is “vacant” for the purposes of the Americans with Disabilities Act (“AD A”), such that a disabled employee may request reassignment to that position as a r easonable accommodation. Plaintiff-Appellant Travis Duvall, who suffers from cystic fybros is, worked in the shipping department of a paper mill owned by Geor gia Pacific (“GP”). When GP d ecided to begin outsourcing the running of its shipping depa rtment, Duvall transferred to another department but found that the paper dust in the air made it impossibl e for him to work there. As a reasonable accommodation, Duvall requested that he be put back in his old ship ping position, which was then occupied by a temporary contract worker pending the permanent outsourcing of the department, or in a position in the mill’s storeroom, which was also in flux at the time with a number of temporary employees f illing some of the storeroom positions. GP refused these requests, and Duvall sued under the ADA. The district court granted summary judgment in favor of GP, holding th at the shipping department and storeroom positions filled by temporary wo rkers were not “vacant” w ithin the meaning of the statute. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM that judgment. Background When Travis Duvall began working at GP ’s Muskogee Paper Mill, he informed the mill management that he su ffered from cystic fibrosis. Fo r the 7 1/2 years before the events giving rise to this litigation, Duvall wo rked in the shipping de partment of the mill,

which received finished and packaged paper products fr om other departments and prepared them for shipping. By 2006, Duvall was earning ar ound $19.50 per hour in the- 3 - shipping department. In December of 2005 , GP determined that it would outsource all shipping operations to a company called Ne twork Logistics Solutions (“NLS”), which would then operate sh ipping as a separate company within the m ill. The changeover from GP to NLS staffing of th e shipping department was or iginally scheduled to be complete by the end of June 2006. Once th e transition was complete, the only GP jobs remaining in the shipping de partment would be palleti zer positions—positions that required the use of GP equipment. As part of the transition, GP employees in the shipping department were given the opportunity to bid for jobs in other parts of the plant, particularly in the converting department, which was a growth area in need of extra staff. As GP employees transferred out of shipping or left the company, they would be replaced by temporary workers provided by a third-party temporary staffi ng company called Encadria. The Encadria employees would remain in the positions unt il the NLS staff were ready to take over the department. GP elected to conduct the transi tion in this manner in order to minimize the impact on its full-time employees and avoid havi ng to reassign or lay off all the shipping personnel at once.

There is little information in the record characterizing the relationship between GP

and Encadria. There is an em ail from the “Senior Client Serv ice Supervisor” at Encadria to GP’s human resources department listing th e positions at the mill for which Encadria provided staff; both the storeroom and the ship ping department were included in that list of positions. (See Apl’t App. at 135.) In his deposition, GP’s mill manager, Karl- 4 - Meyers, indicated that sometimes Encadria temporary employees were hired by GP permanently to fill the positions they occupied, but that “they would have to apply as any other person would have applied for the job, ” and would be hired only if they met the prerequisites of the position. (Id. at 213.) Finally, Meyers characterized GP’s stance toward Encadria temporary wo rkers by observing, somewhat vaguely, “Encadria filled positions that were open that we had.” (Id. at 214.) Unfortunately, Meyers’ deposition is presented in the record in isolated snippets , and his testimony is difficult to place in any

broader context. As the outsourcing of the shipping depart ment progressed, the palletizer positions that would remain open to GP employees in shipping became very popular; Duvall did not possess the seniority requir ed to successfully bid into one of these positions. By February 2006, the only positions open to Duvall based on his seniority were in the converting department. In converting, ra w rolls of newly-fabricated paper were machined into finished product, such as napk ins. As a result, th e air in the converting department bore a significant amount of paper dust. Duva ll bid for and secured a position as a J-Line Operator; in this position he removed newly-fabricated napkins from a machine by hand. After being certified on the machine, Duvall’s rate of pay was increased to $21.00 per hour, which was commens urate with the pay rates in converting. According to standard mill po licy, an employee transfer ring between de partments was paid at the rate of their new department , without regard to their prior wage.- 5 - But the dusty environment in converting took a toll on Du vall’s health. By April 2006, he was experiencing severe breathing di fficulty. He could not wear the dust mask provided him by GP; while it filt ered out much of the dust, it also restricted the air he could inhale. On April 24, at the beginning of his shift, he went to the mill nurse to complain about his problems; she sent him to Muskogee Immediate Care, where he was advised to see his pulmonologist, and to avoi d exposure to paper dust. The mill nurse then convened a Company Re sponse Team (“CRT”) consisting of herself, the plant’s safety manager, and other mill pe rsonnel, with the goal of remedying Duvall’s situation. The CRT gave Duvall an essential functions fo rm for his J-Line Operator position for his pulmonologist to fill out, and allowed him to work the remaining tw o days in his shift week back in shipping, since he had not been symptomatic there. During these two days, Duvall observed that the shipping departme nt was staffed with around 20 Encadria employees and 14 GP employees. In early May of 2006, Duva ll returned to the CRT with the essential functions form filled out by his pulmonolog ist. While the form itself is not in the record, a member

of GP’s human resources staff made contem poraneous notes indicating that the form contained a permanent restriction—“cannot work with paper dust in air.” (Apl’t App. at 119.) The CRT told Duvall that , due to the nature of the wo rk performed at the mill, no

area would meet that restric tion. Duvall rejoined that he had worked for years in shipping without difficulty, but the CRT responded that there were no open GP jobs in shipping, other than the palletizer positions that Duvall did not have the seniority to- 6 - obtain. Duvall was given the paperwork for filing a short-term disability claim; this

insurance eventua lly paid a portion of his salary while he was out of work.

But there was one area of the mill other than shipping where Duvall could safely work: the storeroom. Air quality tests there eventually reve aled dust levels far below those in converting, and on par with the leve ls in the shipping de partment. Duvall was not offered a position in the storeroom in Ma y of 2006, however, because at that time GP’s plans for staffing the storeroom were “in a state of flux.” (Apl’t App. at 210.) During the spring and summer of 2006, GP was considering plans to outsource the storeroom as well as the shippi ng department, but by July of 2006, it had decided that the

storeroom would be staffed entirely by GP employees. 1 The GP employees who were already working in the storeroom would maintain their current rate of pay, but new hires and transfers into the department would be paid between $11.00 and $17.00 per hour.

1 Duvall insists that this was not the case , and that GP could have reassigned Duvall— even temporarily—to the storeroom as of April 2006. In support of this assertion, he offers the testimony of Ronnie Gilliam, the mill’s maintenance superintendant. Gilliam testified that he frequently f ound places in the storeroom fo r mill employees temporarily unable to work elsewhere; that he was never asked to do so for Duvall; and that he was never aware of a state of flux regarding st oreroom staffing. This testimony, however, fails to create a genuine issue of material fa ct. That Gilliam was not aware of a “staffing flux” in the storeroom does not show that such a flux did not exist; i ndeed, the events in question took place during the fina l year before he retired from the mill, and he admitted in his deposition that staffing discussions coul d have occurred that he was not aware of. (Apl’t. App. at 279.) And the record amply supports the existence of such discussions during the relevant time period. (Id. at 280-89 (“Muskogee Storeroom Wage Rates Proposal, 7-28-06”).)- 7 - On July 31, 2006, th e CRT offered Duvall two positi ons. First was a “Palletizer Temporary Position,” in which he would fill in for the full- time palletizers in shipping when they went on vacation or the department was otherwise short-staffed. This position would not offer regular shifts or predictabl e hours. The second po sition was a storeroom clerk, at a pay rate of $17.00 per hour—the top end of the new storeroom pay scale, but less than the $21.00 Duvall had been maki ng in converting. Notwithstanding the reduction in pay, Duvall accepted the storeroom position and returned to work the first week of August, 2006. On December 27, 2006, Duvall filed suit ag ainst GP in the Eastern District of Oklahoma, alleging that GP violated the ADA by failing to reasonably accommodate his disability. GP moved for summa ry judgment on August 1, 20 08, and the district court granted that motion on September 17. Du vall timely appealed to this court.

Discussion

I. Standard of Review The district court granted GP’s moti on for summary judgment; we review that determination de novo, applying the same standard as the district court. See Hennagir v. Utah Dept. of Corr. , 587 F.3d 1255, 1261 (10th Cir. 2009). We must affirm if the record reveals no genuine issue of material fact a nd if the moving party— here GP—is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Finally, in applying Rule 56, “we- 8 - consider the evidence in the light most favorable to the non-moving party.” Bowling v.

Rector , 584 F.3d 956, 964 (10th Cir. 2009).

II. The ADA Reassignment Duty and the Meaning of “Vacant”

The Americans with Disab ilities Act commands that no employer “discriminate against a qualified individual on the basis of disability in regard . . . terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified individual” is “an individual who, with or without reasonabl e accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Within its defi nition of “discriminate,” the ADA includes “not making

reasonable accommodations to the known physical or mental lim itations of an otherwise qualified individual with a di sability.” 42 U.S.C. § 12112 (b)(5)(A). Finally, the Act

states that such a “reasonable accommodation” may include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B). The parties do not dispute that Duvall’s cyst ic fibrosis renders him disabled within the meaning of the statute. (See Apl’t App. at 392-93.) Theref ore, resolution of this case turns on whether the ADA requir ed GP to reassign Duvall either to his old position in the shipping department until it was ready to be permanently outsourced to NLS, or to a position in the storeroom during the three months of the summe r of 2006 in which he was unable to work in the converting departme nt and was not offered a position in the storeroom. To answer that question, we first consider the scope of the duty of- 9 - reassignment imposed by the ADA in this circuit, then define the term “vacant” in the statute, and finally apply that de finition to Duvall’s circumstances. A. ADA Reassignment in the Tenth Circuit This court’s most thorough explora tion of the ADA reassignment duty was in Smith v. Midland Brake, Inc. , 180 F.3d 1154 (10th Cir. 1999) (e n banc). In that case, we

determined that the statutor y duty upon employers to r eassign disabled employees to vacant positions is mandatory. If a di sabled employee can be accommodated by reassignment to a vacant position, the employer must do more than consider the disabled employee alongside other applicants; the empl oyer must offer the employee the vacant position. Id. at 1167.

Midland Brake sets out the elements of a claimed ADA violation based on a failure to reassign a disabled employee: (1) The employee is a disabled pers on within the meaning of the ADA and has made any resultin g 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 accomplishe[d;] (3) The employee requested the employer reasonably to accommodate his or her disabilit y by reassignment to a vacant position, which the employee may identify at the outset or which the employee may request the employer identify through an interactive process, in which the employee in good faith was willing to, or did, cooperate; (4) The employee was qualified, with or without reasonable accommodation, to perform one or more appropriate vacant jobs within the company that the employee must, at the time of the summary judgment procee ding, specifically identify- 10 - and show were available within the company at or about the time the request for reassignment was made; and (5) The employee suffered injury because the employer did not offer to reassign the employee to any appropriate vacant position.

Id. at 1179. The employer’s obligation to reassi gn a disabled employee is not, however,

without limit. In Midland Brake , we recognized the overar ching principle that all accommodations under the ADA must be gove rned by the statutory modifier of

reasonableness. Id. at 1171. In addition to that blan ket principle, we noted a number of specific situations in whic h reassignment would be unrea sonable. Four of these situations are potentially relevant to this case. First, “[i]t is not re asonable to require an employer to create a new job for the purpose of reassigning an employee to that job.” Id. at 1174. Next, the ADA does not require th e employer to reassign a disabled employee to a position that would cons titute a promotion. Id. at 1176 (“[The ADA] is not a statute giving rise to a right to advancement.”). Th ird, the ADA does not require an employer to reassign a disabled employee in a manner that would contravene that employer’s “important fundamental policies underlying legitimate business interests.” Id. at 1175. Finally, and most importantly for the purposes of this appeal, the job to which a disabled employee seeks reassignment mu st, as the statute’s text dictates, be vacant. Id. “[I]f a position is not vacant it is not reasonable to require an employer to bump another employee in order to reassign a disabl ed employee to that position.” Id. (citing H.R. Rep. No. 101-485(II), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345- 11 - (“[R]eassignment need only be to a vacant position – ‘bumping’ another employee out of a position to create a vacancy is not required.”)). B. The Meaning of “Vacant” The operative question in this case, therefore, is: did GP have any vacant positions to which Duvall could have been reassigne d during the relevant three-month period between May and August of 2006? It is unconte sted that some jobs in both the shipping department and the storeroom during that pe riod were being filled by temporary workers provided by Encadria. In the case of shipping, those temporary workers were filling in until NLS employees could perm anently take over the depart ment; in the storeroom, the Encadria temps were working pending GP’s st oreroom restructuring plans, which were completed in late July 2006 . According to GP, positions filled by Encadria temporary

workers were not “vacant” with in the meaning of the statut e; Duvall maintains, to the contrary, that if a GP position was filled by an Encadria temp, then that position was—as

far as GP was concerned—vacant . To decide which of these interpretations is correct, we must engage in statutory interpretation to determine the meaning of the term vacant. We have not previously defined the term “vacant” for the purposes of the ADA, and we have not found any cases fr om our sister circuits doing so. 2 Nor has the Supreme

2 The Equal Employment Opportunity Commission (“EEOC”) has defined the term as follows: “‘Vacant’ means that the position is available when the employee asks for reasonable accommodation, or that the empl oyer knows that it will become available within a reasonable amount of time. ” Enforcement Guidance: Reasonable Accommodation and Undue Ha rdship Under the Ameri cans with Disabilities Act Continued . . .- 12 - Court defined the term, but in US Airways, Inc. v. Barnett , 535 U.S. 391, 399 (2002), the Court observed that “[n]othing in the [ADA ] suggests that Cong ress intended the word ‘vacant’ to have a specialized meaning.” We therefore begi n our analysis by considering the ordinary meaning of “vacant.” See Conrad v. Phone Directories Co. , 585 F.3d 1376, 1381 (10th Cir. 2009) (noting that we begin st atutory analysis by cons idering the ordinary meaning of statutory terms, and we may consult dictionaries to determine that meaning). Webster’s Dictionary offers two relevant definitions of vacant: “not filled or occupied by an in cumbent [or] possessor” an d “being without . . . occupant.” Webster’s Third New International Dictionary 2527 (1986 ed.); accord Barnett , 535 U.S. at 409 (O’Connor, J., concurring) (quoting Webster’s definition). These definitions, however, fail to provide for all the nuances of the empl oyment relationship. To arrive at a proper meaning for the term vacant, we must consid er it in the context of the statute as a whole—in this case, as a regulation of the employment relationship. See Conrad , 585 F.3d at 1381 (“We . . . take into account the broader context of the statute as a whole when ascertaining the meaning of a particular provision.”) (quotation omitted). In the employment context, we hold that a position is “vacant” with respect to a disabled

(“EEOC Guidance”), at 21 (2002). As the ag ency tasked with en forcing the ADA, we accord the views of the EEOC substantial deference. See Midland Brake , 180 F.3d at 1165 n.5. However, the definition in the EEOC Guidance is too broad to answer the question presented here—askin g whether a position filled by a temporary employee is “available” is no different for the purpose s of this case from asking whether it is “vacant.”- 13 - employee for the purposes of the ADA if it wo uld be available for a similarly-situated non-disabled employee to apply for and obtain. 3

This definition best serves the non-disc riminatory aims of the ADA. Congress’ purpose in passing the statute was to place disa bled employees on an equal footing with

their non-disabled coworkers. See Kornblau v. Dade County , 86 F.3d 193, 194 (11th Cir. 1996) (“The purpose of the [ADA] is to place those with disabilities on an equal footing, not to give them an unfair adva ntage.”). This is reflected at the very core of the statute, in the definition of a “qualified individual.” That category is limited to those disabled employees “who, with or without reasonabl e accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added). To be covere d under the statute, the disabled employee must be capable of performing the essential co re of the job at issue. Jarvis v. Potter , 500 F.3d 1113, 1121 (10th Cir. 2 007) (“[O]ne who cannot perform the essential functions of

3 We recognize that the ADA may sometimes require an employer to abrogate policies that apply to all employees equally in or der to accommodate a disabled employee, under the rubric of reasonableness. Thus, in Midland Brake , we noted that an employer who maintained a blanket no-transfer policy that applied to all employe es equally would still be required to reassign a disabled empl oyee to a vacant position as a reasonable accommodation under the ADA. 180 F.3d at 1176. The EEOC concurs. EEOC Guidance at 22 (“[I]f an employer has a polic y prohibiting transfers, it would have to modify that policy in order to reassign an employee with a disability, unless it could show undue hardship.”). That issue, however, is not pr esented in this case. In this case, at the time Duvall sought reassignment, the storer oom and shipping positions were in the process of being removed from GP staffing, or being considered for such removal. Duvall does not allege that the outsourcing or consideration of such outsourcing itself was unreasonable. Here, th e jobs were not vacant.- 14 - the job, even with a reasonable accommoda tion, is not an ‘otherwise qualified’ individual.”). And employers are not required to modify the essential functions of a position in order to accommodate a di sabled employee. Midland Brake , 180 F.3d at 1178 (“Although some ‘job restructuring’ may be re quired, if the job restructuring goes to the modification of essential job requirements and is substantial, it is not required.”) (citation omitted); see also 29 C.F.R. pt. 1630 App. § 1630.2(o) (“An employer . . . is not required to reallocate essential functions.”). If the term vacant meant anyt hing other than “available to a similarly-situated nondisabled employee,” we would run the risk of transforming the ADA from an

antidiscrimination statute into a ma ndatory preference statute. Cf. Dalton v. SubaruIsuzu Automotive, Inc. , 141 F.3d 667, 679 (7th Cir. 1 998) (noting that requiring an employer to reassign a disabled employee in a manner that contravened a legitimate, nondiscriminatory policy “would convert a no ndiscrimination statute into a mandatory preference statute, a result which would be bo th inconsistent with the nondiscriminatory

aims of the ADA and an unreasonable im position on the employers and coworkers of disabled employees”). And such a result woul d effectively require employers to create new positions specifically for disabled employees—positions not available to nondisabled employees. Courts have universally held that the ADA does not require this.

See Midland Brake , 180 F.3d at 1174 (collecting cases). In sum, when a disabled employee seeks the reasonable accommodation of reassignment to a vacant position, positions within the company ar e “vacant” for the- 15 - purposes of the ADA when they would be av ailable to similarly-situated nondisabled employees to apply for and obtain. C. Application to Duvall Having defined the term “vacant” in the st atute, we may now ap ply that definition to Duvall to determine whether summary judgm ent in favor of GP was appropriate.

While Midland Brake recognized that a vacant position ma y come to light as part of the interactive process between the disabl ed employee and the employer, we have subsequently clarified that, at the summary judgment stage, the plaintiff-employee bears the burden of specifically id entifying a vacant position, re assignment to which would serve as a reasonable accommodation. Taylor v. Pepsi-Cola Co. , 196 F.3d 1106, 1110 (10th Cir. 1999) (“To survive summary judgment, Plaintiff must establish that he was qualified to perform an appropriate vacant jo b which he must spec ifically identify and

show was available within the company at or about the time he requested reassignment.”); accord McBride v. BIC Consumer Prods Mfg. Co. , 583 F.3d 92, 97 (2d Cir. 2009); Shapiro v. Township of Lakewood , 292 F.3d 356, 360 & n.1 (3d Cir. 2002); Phelps v. Optima Health, Inc. , 251 F.3d 21, 27 (1st Cir. 2001); Ozlowski v. Henderson , 237 F.3d 837, 840 (7th Cir. 2001).

A review of the record in this case re veals that Duvall has failed to carry that

burden. To establish that th e Encadria-filled positions at the mill were, in fact, vacant GP positions, Duvall relies entirely upon Karl Meyers’ deposition testimony that “Encadria filled positions that were open that we had.” (Apl’t App. at 214.) Thus, according to- 16 - Duvall, since Encadria temporary workers fill ed positions in both the storeroom and the shipping department during the three months he was out of work, GP should have reassigned him to one of th ose “open” positions. But ev en drawing every reasonable inference from Meyers’ testimony in Duvall’ s favor—which we are required to do on review of a grant of summary judgment 4 —that testimony fails to answer what we have identified as the operative question. Even if those positions were “open positions that [GP] had,” that does not answer whether th e positions were vacant, such that other, nondisabled GP employees would have been able to apply for and obtain them. The undisputed evidence was th at GP’s business plan was to occupy these positions exclusively with Encadria contract employe es until they would pe rmanently be filled with NLS employees or until GP later determin ed to make the storeroom positions vacant again for its own employees. Thus, from the perspective of GP’s employees, the positions were not vacant and available to any of them at the time Duvall sought an accommodating assignment into one of those positions. An d because Duvall’s evidence fails to create a genuine issue of material fact on that question, we must affirm the district

court.

4 We feel that this is the most generous possi ble reading of an isolated and out-of-context snippet of Meyers’ testimony. We treat it thus generously purely as a matter of our standard of review. See Bowling , 584 F.3d at 964. Becaus e Duvall did not provide us with the entire deposition testimony of Meyers , it is impossible for us to determine what Meyers meant when he used the word “open.”- 17 - Indeed, even though we view Meyers’ testimony in the light most favorable to Duvall, the additional, uncontroverted eviden ce of GP’s outsourcing plans woul d prohibit us from going so far down the road of infe rence as to find that the Encadria-filled positions were vacant. Duvall has not rebutted GP’s evidence that it planned to outsource all but the palletizer positions in shipping to NLS; nor has he rebutted the documentary evidence establishing that staffing in the stor eroom at the time in question was in flux. Duvall has not pointed to a single GP em ployee who was given an Encadria-filled position in either of these depart ments during the time in question. 5 Therefore, Duvall failed to carry his burden to establish the ex istence of a vacant position to which he could have been reassigned, and su mmary judgment was appropriate.

Conclusion We hold that a position is “vacant” fo r the purposes of the ADA’s reassignment duty when that position would have been avai lable for similarly-si tuated nondisabled employees to apply for and obtain. Because Du vall failed to establish a genuine issue of material fact regarding that question, we AF FIRM the district court’s grant of summary judgment for the defendant.

5 We note that the CRT elected to allow Duva ll to work two days in shipping after he began complaining of the adverse symptoms he developed in converting at the end of April 2006. Duvall does not argue that th is two-day assignment establishes that the shipping positions were vacant at the time, an d the record establishes that this brief reassignment was purely an interim, stop-gap measure designed to allow Duvall to finish his shift-week while the CRT attempted to devise a reasonable accommodation for his disability.