# Thompson v. E.I. DuPont deNemours & Co. > Court of Appeals for the Sixth Circuit · July 23, 2003 · 70 F. App'x 332 URL: https://www.frixlaw.com/law-library/cases/8417150 ## Case - **Full name:** Mark P. THOMPSON v. E.I. DUPONT DENEMOURS AND CO. - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** July 23, 2003 - **Citations:** 70 F. App'x 332 - **Precedential status:** Published - **Opinion:** Dissent by Clay - **Judges:** Clay, Gibbons, Ryan - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8417150 ## Opinion text CLAY, Circuit Judge. The open-ended temporary BRP position was a reasonable accommodation of Plaintiffs disability for the life of the position. I would therefore reverse the district court’s order granting summary judgment in favor of DuPont. The majority recognizes that at the time Plaintiff requested to be placed in the then temporary BRP position, Plaintiff was not asking that du Pont place him there permanently; rather, Plaintiff requested that DuPont place him in the BRP position for the life of the position, how ever long that period may have been. 1 It may be true that Plaintiff requested that DuPont keep an eye out for a position that would have been a reasonable accommodation of his disability while he performed the BRP job; however, this does nothing to change the fact that while in the BRP position, Plaintiff was functioning as an employee until such time that the BRP position ended or became permanent. The majority nonetheless concludes that Plaintiffs request was not a reasonable accommodation of his disability because the case law indicates that temporary positions are not reasonable accommodations for individuals with permanent disabilities, and that the flexible open-ended approach suggested by Plaintiff was not required under the Americans with Disabilities Act (“ADA”). I disagree with the majority’s interpretation of the relevant case law in this regard, as well as its interpretation of the ADA’s requirements. The majority may be correct that the relevant jurisprudence suggests that a temporary position is not a reasonable accommodation for an individual with a permanent disability when placement in the temporary position would result in the creation of a new, permanent position. However, placing Plaintiff in the BRP position for the life of the position would not have resulted in DuPont creating a new, permanent position. Instead, placing Plaintiff in the then labeled “temporary” BRP position would have been a reasonable accommodation until the position ended or was made permanent. Indeed, nothing in the jurisprudence prevents such a result. For example, Hoskins v. Oakland County Sheriffs Dep’t, 227 F.3d 719, 730 (6th Cir.2000), does not support the finding that a temporary position can never be a reasonable accommodation of a permanent *343 disability. In Hoskins , the plaintiff was a deputy sheriff whose duties included transporting prisoners from the county jail to detention which, from time to time, required the plaintiff to physically restrain the inmates. Id. at 722 . Multiple non-work-related injuries suffered by the plaintiff when she was crushed by a horse left her unable to restrain the inmates if necessary. Id. Thus, these injuries prevented the plaintiff from performing the essential functions of her job, and the plaintiff sought reassignment as a form of reasonable accommodation. Id. at 728 . Among other requested positions, the plaintiff requested that she be permanently reassigned to a position in one of the control booths within the jail facility. 227 F.3d at 729-30 . The job in the control booth was considered easier than most jobs in the main jail so, in fairness, the position was rotated in order to give every deputy an opportunity to work at this easier job. Id. at 730 . The defendant employer argued that because the control booth position was a rotating one, it was considered a temporary position, and reassignment of the plaintiff to the position on a permanent basis would improperly require the defendant to create a new position for the plaintiff. Id. We ultimately agreed with the defendant, noting at the outset of our decision that we had “not before had occasion to address the issue of whether a reasonable accommodation would include turning a rotating or relief position into a permanent position.” Id. Because the issue was one of first impression, we looked to the Seventh Circuit for guidance. Id. Specifically, we looked to the Seventh Circuit’s decisions in Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 697 (7th Cir.1998) and Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 680 (7th Cir.1998), wherein the Seventh Circuit was faced in both cases with plaintiffs who sought permanent reassignment to job positions deemed to be temporary set-aside positions reserved for employees recuperating from temporary restrictions. The Seventh Circuit reasoned that “it would frustrate the ADA for permanently impaired employees to fill temporary light-duty assignments when those jobs have been set aside specifically for recuperating employees.” Hendricks-Robinson, 154 F.3d at 697 . Relying on this reasoning, this Court in Hoskins opined: Although these Seventh Circuit cases are not directly on point, as they involved temporary light-duty positions for recuperating employees rather than a relief position, we nevertheless find them instructive. Like the plaintiffs in Hendñcks-Robinson and Dalton , Hos-kins suggests that she be assigned to a rotating-type job on a permanent basis. We agree that Hoskins’s request would essentially require the creation of a new position rather than reassignment to an otherwise existing vacant one. As we have made clear, an employer’s duty to reassign an otherwise qualified disabled employee does not require that the employer create a new job in order to do so. We therefore conclude that Hoskins has not met her burden of showing that her proposed accommodation is a reasonable one. Hoskins, 227 F.3d at 730 (citations and footnote omitted). Here, unlike in Hoskins , the BRP position, although labeled a temporary position, was not a “rotating” or “relief’ position that Plaintiff requested be made a permanent position to the detriment of coworkers. Rather, the BRP position requested by Plaintiff as a reasonable accommodation was one wherein Plaintiff, like some of his co-workers, could have remained on the job until the BRP position *344 ran its course or became permanent. In what amounts to an inappropriate determination of fact, the majority concludes that the BRP position was one wherein it was understood that the worker assigned to the position could return to his previous position if called upon, thereby making the position a “rotating” one. However, this conclusion not only fails to view the evidence at summary judgment in the light most favorable to Plaintiff, it fails to consider the meaning of “rotating” as that term is commonly known and as that term was used in Hoskins . A question of fact remains as to whether the BRP position could be considered a “rotating” position in that Defendant’s plant supervisor testified that those individuals who transferred to the BRP position did so “with the understanding” that if there was work to be preformed in the worker’s original position, that worker would be called from the BRP position and would return to his “normal” job. (J.A. at 105.) Indeed, there is nothing in the record to indicate that temporary BRP workers in. fact rotated between the two positions; instead, the record indicates that some workers remained in the BRP once they transferred there, thereby creating a question of fact as to whether the BRP position was in fact a rotating one. This is unlike in Hoskins where it was policy and practice for the workers to rotate in and out of the control booth position for purposes of allowing all workers an opportunity to enjoy the less stressful control booth position. See 227 F.3d at 730 . In addition, even if Plaintiff had been called back to his original position from the BRP position, the worst result would have been that Plaintiff would have had to go on disability at that time. Allowing Plaintiff to remain in the BRP position until he was called back or until the position ceased to exist would have benefited Plaintiff. This is because the later in time Plaintiff was placed on total and permanent disability, the longer Plaintiff would have benefited from his salary in full inasmuch as while under total and permanent disability, Plaintiff receives sixty percent of his most recent annual earnings. Similarly, the later that Plaintiff was placed on total and permanent disability, the longer he would have received his medical benefits in full inasmuch as under the total and permanent disability policy, Plaintiffs full medical benefits continued on for two years after termination. Plaintiffs claim is also inapposite to the Seventh Circuit’s decisions in Hendricks-Robinson, 154 F.3d at 697 , and Dalton, 141 F.3d at 680 , inasmuch as Plaintiff is not requesting that a temporary position specifically set aside for temporary light duty work be converted to a permanent position. However, this case is like Hendricks-Robinson to the extent that a question of fact remains for trial as to whether the BRP position to which Plaintiff sought reassignment was a “temporary” position. See 154 F.3d at 697-98 . Plaintiff proffered evidence that although the BRP position was labeled as “temporary,” it had all the characteristics of a permanent position in that Defendant provided no end-date for the position, those who wanted to continue performing the BRP position were ultimately maintained there, workers had performed in the BRP position for at least two years at the time Plaintiff initially requested that he be transferred, and the position remained open for more than three years when in June of 2000, after Plaintiff had been placed on total and permanent disability, the position was labeled as permanent. Thus, as in HendñcksRobinson, a question of fact remains as to whether the BRP position was a “temporary” position, or merely labeled as such by Defendant. See id. at 698 (finding that a question of fact remained for trial as to *345 whether the light-duty jobs were actually reserved for those individuals needing temporary accommodations of their disabilities or whether the jobs had been treated as permanent positions). Despite these distinctions, the majority would nonetheless reject Plaintiffs argument that the BRP position was a reasonable accommodation of his disability, on the basis that such a flexible open-ended approach is not required by the ADA. However, the Equal Employment Opportunity Commission (“EEOC”) instructs us that the ADA should be interpreted with such flexibility in mind. For example, the EEOC’s Technical Assistance Manual provides that [i]f an employer already has a vacant light duty position for which an injured worker is qualified, it might be a reasonable accommodation to reassign the worker to that position. If the position was created as a temporary job, a reassignment to that position need only be for a temporary period. EEOC: Technical Assistance on Title I of ADA. 8 Fair Empl. Prac. Manual (BNA) § 9.4 at 405:7057-58 (1992). Athough it is true that this directive from the EEOC applies to employees with temporary disabilities who are expected to recover and return to their former job positions, the EEOC’s directive is a clear indication that an employer is to provide some flexibility when attempting to accommodate a disabled employee under the ADA. See Johnson v. Univ. of Cincinnati, 215 F.3d 561 , 579 n. 8 (6th Cir.2000) (noting that it is well accepted in the jurisprudence that the EEOC’s interpretation of the civil rights statutes, while not controlling, are to be given “ ‘great deference.’ ”) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 434 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971)). There is no logical difference between placing a temporarily disabled employee in a set-aside position until such time that the employee has ceased to be disabled, and placing a permanently disabled employee in a temporary, but nonset-aside, position until such time that the position has ceased. In either case, the ADA’s reasonable accommodation requirement is being applied in a flexible manner so as to allow a disabled employee to continue working. Simply stated, the case law upon which the majority relies in rejecting Plaintiffs claim that the BRP position, although labeled as temporary, could have served as a reasonable accommodation of Plaintiffs disability for the life of the position, is distinguishable and may actually serve to support Plaintiffs position, particularly where questions of fact remain as to whether the BRP position was a rotating or temporary position. Likewise, the majority’s assertion that the ADA does not require a flexible open-ended approach when accommodating the needs of disabled employees is contrary to the approach recommended by the EEOC. Placing Plaintiff in the BRP position and allowing him to have remained there for the life of the position would not have required that DuPont transform a temporary position into a permanent one, and would have allowed Plaintiff to serve as a productive member of DuPont’s workforce while receiving full pay and medical benefits for that much longer period of time. This is the result contemplated under the law, and it is upon this basis that I respectfully dissent. . Contrary to the majority’s claim, Plaintiff indeed argues that the BRP position would have been a reasonable accommodation for the life of the job. See Plaintiff’s Br. at 30 ("Here, reassigning Plaintiff to the BRP would have allowed him to continue his employment with the company and to perform the essential functions of the job for as long as the BRP position lasted. Therefore, the accommodation was reasonable in the sense that it was efficacious and it would have cost Defendant nothing.”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8417150. Public record. Not legal advice.