Opposition Brief — Perry Hopman, Petitioner v. Union Pacific Railroad
Supreme Court briefJan 5, 2024
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No. 23-362
IN THE
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_______________
PERRY HOPMAN,
v.
Petitioner,
UNION PACIFIC RAILROAD CO.,
Respondent.
_______________
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
_______________
BRIEF IN OPPOSITION
_______________
THOMAS H. DUPREE JR.
Counsel of Record
JEFF LIU
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Ave., NW
Washington, DC 20036
(202) 955-8500
tdupree@gibsondunn.com
Counsel for Respondent Union Pacific Railroad Co.
i
QUESTION PRESENTED
The Americans with Disabilities Act requires
employers to “mak[e] reasonable accommodations” for
qualified individuals with a disability. 42 U.S.C.
§ 12112(b)(5)(A).
Federal regulations define
“reasonable
accommodation[s]”
to
include
modifications necessary to enable an employee with a
disability to perform essential work functions, 29
C.F.R. § 1630.2(o)(1)(ii), and “to enjoy equal benefits
and privileges of employment” available to similarly
situated employees without disabilities, id.
§ 1630.2(o)(1)(iii).
Petitioner Perry Hopman, a Union Pacific freight
train engineer, requested to bring his service dog with
him in the cab of the locomotive. Because it is
undisputed that petitioner can perform the essential
functions of his job without an accommodation,
petitioner did not make a claim under
§ 1630.2(o)(1)(ii). Instead, he argued that the dog
eased his psychological pain and that a right to work
without psychological pain is a “benefi[t] and
privileg[e] of employment” under § 1630.2(o)(1)(iii).
The question presented is:
Whether the Eighth Circuit correctly held that the
“benefits and privileges of employment” under 29
C.F.R. § 1630.2(o)(1)(iii) refers to employer-provided
programs and services offered to employees regardless
of their disability status, and does not include a right
to freedom from psychological pain.
ii
RULE 29.6 STATEMENT
Pursuant to this Court’s Rule 29.6, undersigned
counsel states that respondent Union Pacific Railroad
Company is a wholly owned subsidiary of Union
Pacific Corporation, a publicly traded company. No
publicly traded corporation is known to own 10% of
the stock of Union Pacific Corporation.
iii
TABLE OF CONTENTS
Page
INTRODUCTION ........................................................ 1
STATEMENT .............................................................. 4
REASONS FOR DENYING THE PETITION .......... 11
I.
The Eighth Circuit Found That Petitioner
Did Not Properly Preserve The Question
Presented. ..................................................... 11
II. The Decision Below Does Not Conflict
With The Decision Of Any Other Circuit
And Is Consistent With The Views Of The
EEOC. ........................................................... 12
A. The Eighth Circuit’s decision does not
create a conflict. ..................................... 12
B. The Eighth Circuit’s decision aligns with
the EEOC’s views. .................................. 22
III. There Is No Other Reason To Grant
Review. .......................................................... 25
A. The decision below is correct. ................ 26
B. The question presented is not
significant enough to merit review. ....... 27
C. This case is a poor vehicle. .................... 29
CONCLUSION .......................................................... 31
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555 (1999) .............................................. 30
Alexander v. Choate,
469 U.S. 287 (1985) .............................................. 27
Allen v. City of Raleigh,
140 F. Supp. 3d 470 (E.D.N.C. 2015) .................. 28
Bell v. O’Reilly Auto Enterprises, LLC,
972 F.3d 21 (1st Cir. 2020) .................................. 14
Bey v. City of New York,
999 F.3d 157 (2d Cir. 2021) ................................. 30
Brown v. Austin,
13 F.4th 1079 (10th Cir. 2021) ................ 17, 18, 19
Brumfield v. City of Chicago,
735 F.3d 619 (7th Cir. 2013) .......................... 18, 19
Buckingham v. United States,
998 F.2d 735 (9th Cir. 1993) .......................... 19, 29
Cannice v. Norwest Bank Iowa N.A.,
189 F.3d 723 (8th Cir. 1999) ................................ 27
City of Springfield v. Kibbe,
480 U.S. 257 (1987) (per curiam) ........................ 12
Colwell v. Rite Aid Corp.,
602 F.3d 495 (3d Cir. 2010) ........................... 14, 15
EEOC v. Charter Commc’ns, LLC,
75 F.4th 729 (7th Cir. 2023) .......................... 20, 29
v
TABLE OF AUTHORITIES
(continued)
Page(s)
EEOC v. Dolgencorp, LLC,
899 F.3d 428 (6th Cir. 2018) ................................ 16
Fedro v. Reno,
21 F.3d 1391 (7th Cir. 1994) ................................ 18
Fjellestad v. Pizza Hut of Am., Inc.,
188 F.3d 944 (8th Cir. 1999) ................................ 18
Gleed v. AT&T Mobility Services, LLC,
613 F. App’x 535 (6th Cir. 2015) ................... 15, 16
Hathaway v. Zoot Enters., Inc.,
498 P.3d 204 (Mont. 2021) ................................... 21
Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 253 (1st Cir. 1999) .......................... 13, 14
Hill v. Associates for Renewal in
Education, Inc.,
897 F.3d 232 (D.C. Cir. 2018) ........................ 16, 17
Jacques v. Clean-Up Grp., Inc.,
96 F.3d 506 (1st Cir. 1996) .................................. 13
Keith v. Cnty. of Oakland,
703 F.3d 918 (6th Cir. 2013) .................................. 4
Lawn v. United States,
355 U.S. 339 (1958) .............................................. 12
McDonald v. Department of
Environmental Quality,
214 P.3d 749 (Mont. 2009) ............................. 20, 21
Peebles v. Potter,
354 F.3d 761 (8th Cir. 2004) ................................ 24
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Sanchez v. Vilsack,
695 F.3d 1174 (10th Cir. 2012) ...................... 17, 18
Stokes v. Nielsen,
751 F. App’x 451 (5th Cir. 2018) (per curiam) .... 15
Swain v. Wormuth,
41 F.4th 892 (7th Cir. 2022) ................................ 19
United States v. Morton,
467 U.S. 822 (1984) .......................................... 4, 26
US Airways, Inc. v. Barnett,
535 U.S. 391 (2002) ................................................ 4
Wood v. Milyard,
566 U.S. 463 (2012) .............................................. 12
Woodman v. Runyon,
132 F.3d 1330 (10th Cir. 1997) ............................ 17
Statutes
42 U.S.C. § 12101 ........................................................ 4
42 U.S.C. § 12111 ........................... 4, 15, 17, 21 26, 27
42 U.S.C. § 12112 .............................................. 1, 4, 14
Rules
Fed. R. App. P. 28 ............................................ 2, 10, 11
Sup. Ct. R. 10............................................................. 22
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Regulations
29 C.F.R. Part 1630 App., § 1630.9 .............. 10, 22, 27
29 C.F.R. § 1630.2 .................. 1, 2, 3, 5, 7, 8, 9, 11, 12,
13, 14, 15, 16, 17, 18, 20,
22, 25, 26, 27, 28, 29
29 C.F.R. § 1630.15 ................................................... 30
49 C.F.R. § 229.119 ................................................... 31
Other Authorities
Helena E. v. Kijakazi,
2022 WL 3715444 (E.E.O.C. Aug. 3, 2022) ......... 24
Reina D. v. Berryhill,
2017 WL 6422230 (E.E.O.C. Nov. 29, 2017) ....... 24
EEOC, Technical Assistance Manual on the
Employment Provisions (Title I) of the
Americans with Disabilities Act (1992) .......... 9, 23
EEOC Amicus Br., Beasley v. O’Reilly
Auto Parts, No. 21-13083 (11th Cir.
Nov. 8, 2021)................................................... 23, 24
EEOC Amicus Br., Gleed v. AT&T
Mobility Servs., Inc., No. 14-2088
(6th Cir. Nov. 12, 2014)........................................ 23
1
BRIEF IN OPPOSITION
Respondent Union Pacific Railroad Company
(Union Pacific) respectfully submits this brief in
opposition to the petition for a writ of certiorari.
INTRODUCTION
This case concerns the meaning of an
uncommonly invoked regulation implementing the
Americans with Disabilities Act (ADA).
The ADA prohibits discrimination “on the basis of
disability.” Under the statute, an employer’s failure
to provide “reasonable accommodations” to an
employee with a disability can be prohibited
discrimination. 42 U.S.C. § 12112(a)-(b). Regulations
promulgated by the Equal Employment Opportunity
Commission (EEOC) provide that employers may be
required to offer an accommodation to an employee
with a disability to enable him “to perform the
essential functions” of his position, 29 C.F.R.
§ 1630.2(o)(1)(ii), or “to enjoy equal benefits and
privileges of employment as are enjoyed” by “similarly
situated” employees without disabilities, id.
§ 1630.2(o)(1)(iii).
“[M]ost failure-to-accommodate
cases”
are
essential-functions
cases
under
§ 1630.2(o)(1)(ii). Pet. App. 4a.
This case, however, involves a standalone claim
under § 1630.2(o)(1)(iii). Petitioner Perry Hopman, a
Union Pacific freight train engineer, does not dispute
that he can perform the essential functions of his job
without an accommodation. Invoking only the “equal
benefits and privileges” provision, petitioner
contended that the law entitled him to bring his
service dog into the cab of moving freight trains to
ease the negative effects of post-traumatic stress
2
disorder and migraine headaches. After careful
review by its legal team and safety department, Union
Pacific denied petitioner’s request because allowing a
dog in the cab of a freight train would threaten the
health and safety of railroad employees and would
violate federal safety regulations. The district court
rejected petitioner’s claim that he was entitled to this
accommodation under 29 C.F.R. § 1630.2(o)(1)(iii),
and the Eighth Circuit affirmed.
There is no reason for this Court to grant review.
The Eighth Circuit held that petitioner had not
properly preserved the issue whether a right to be free
from psychological pain is among the “equal benefits
and privileges of employment” an employer must
provide under 29 C.F.R. § 1630.2(o)(1)(iii). See Pet.
App. 15a (citing Fed. R. App. P. 28(a)(5), and
concluding that petitioner’s failure to “stat[e] this is
an issue presented . . . will not do”). Because this
Court ordinarily does not review issues not preserved
below, the petition should be denied on that ground
alone.
The Eighth Circuit also correctly rejected
petitioner’s claim on the merits. The plain text of
§ 1630.2(o)(1)(iii), the court of appeals reasoned,
shows that the “equal benefits and privileges of
employment” refer only to programs and services
provided or sponsored by the employer and offered to
employees regardless of whether they have a
disability. Section 1630.2(o)(1)(iii) does not create a
general right to a workplace free of psychological pain.
See Pet. App. 12a-13a.
Petitioner’s claim of a circuit split is baseless. The
Eighth Circuit did not announce a position that, as
petitioner contends, puts that court in open conflict
3
with eight other federal courts of appeals and one
state supreme court.
Petitioner’s attempt to
manufacture a circuit split rests on a hodgepodge of
dicta, unpublished decisions, and cases interpreting a
different statute. It also rests on the false premise
that this case raises a broader question about the
meaning of the phrase “terms, conditions, and
privileges of employment” under the ADA. See Pet. i,
9. That issue is not before the Court. Petitioner did
not raise these statutory interpretation arguments
below, and he presented his case as seeking only to
vindicate the “equal benefits and privileges of
employment” under 29 C.F.R. § 1630.2(o)(1)(iii). See,
e.g., D. Ct. Dkt. 4, ¶ 12. Certainly that is how both the
district court and the Eighth Circuit understood his
claim. And as the Eighth Circuit explained, petitioner
“cites no case . . . where an employee’s failure-toaccommodate claim was based entirely on the benefits
and privileges of employment duty in 29 C.F.R.
§ 1630.2(o)(1)(iii), and the court held that the duty
was not limited to employer provided or sponsored
services and programs.” Pet. App. 14a. In short,
courts are not divided on the actual question
presented in this case.
There is no other reason to grant review. Cases
under § 1630.2(o)(1)(iii) do not arise frequently, so
interpretive questions about its meaning are not
significant enough to warrant this Court’s review.
And even if there were
questions about the
regulation’s meaning, the EEOC itself can clarify.
There is no need for this Court’s intervention.
Finally, this case is a poor vehicle for addressing
the question presented. No matter what this Court
might decide on the question petitioner raises, the
outcome of this case will be the same because
4
alternative grounds independently support the
Eighth Circuit’s holding. This Court should not
expend its limited resources on a case where its ruling
will not affect the outcome.
The Court should deny the petition.
STATEMENT
1. The Americans with Disabilities Act, Pub. L.
No. 101-336, 104 Stat. 327, codified at 42 U.S.C.
§ 12101 et seq., prohibits an employer from
discriminating against qualified individuals based on
disability. 42 U.S.C. § 12112(a)-(b). This statutory
prohibition carries with it the duty to provide
“reasonable accommodations” to individuals with a
disability, unless the accommodation would pose an
undue hardship to the employer. US Airways, Inc. v.
Barnett, 535 U.S. 391, 395 (2002). The statute lists
specific examples of “reasonable accommodation[s],”
including “making existing facilities used by
employees readily accessible to and usable by
individuals with disabilities,” and “job restructuring,”
“the provision of qualified readers or interpreters, and
other similar accommodations.” 42 U.S.C. § 12111(9).
By regulation, the EEOC has provided additional
guidance
on
the
meaning
of
“reasonable
accommodation.”
The regulatory definition of
“reasonable accommodation” has three distinct
provisions, and ADA plaintiffs often opt to litigate
failure-to-accommodate claims under one or another
of these provisions.
These regulations have
“controlling weight unless they are . . . contrary to the
statute,” United States v. Morton, 467 U.S. 822, 834
(1984), and are “assume[d]” to be “valid” unless
challenged, Keith v. Cnty. of Oakland, 703 F.3d 918,
925 (6th Cir. 2013).
5
Section 1630.2(o)(1)(i) addresses job applicants,
defining “reasonable accommodation” to
include adjustments that enable a qualified
applicant with a disability to “be considered for
the position such qualified applicant desires.”
Section 1630.2(o)(1)(ii) applies to modifications
or adjustments “that enable an individual with
a disability who is qualified to perform the
essential functions” of the job. “[M]ost” ADA
failure-to-accommodate claims fall under this
essential-functions rubric. Pet. App. 4a.
Section 1630.2(o)(1)(iii) is less commonly
invoked than the other two subsections. It
provides that “reasonable accommodation”
includes modifications or adjustments that
enable an employee with a disability “to enjoy
equal benefits and privileges of employment as
are enjoyed by . . . similarly situated employees
without disabilities.” Section 1630.2(o)(1)(iii) is
the sole provision at issue in this case. See D.
Ct. Dkt. 59, at 15 (plaintiff’s opposition to
summary judgment) (“[t]he first two prongs [of
the regulations] are not at issue in this
lawsuit”).
2. Petitioner Perry Hopman experiences posttraumatic stress disorder and related symptoms
arising from his two military tours of duty as a flight
medic.
Petitioner began working for Union Pacific as a
train conductor in 2008 and returned to the job in
2015 after his second tour of duty. Pet. App. 67a-69a.
Although petitioner passed Union Pacific’s fitness reentrance exam, he suffered flashbacks and migraine
6
headaches on the job. Id. at 7a. To ease his
symptoms, petitioner obtained a service dog. Id.
In 2016, about a year after he returned to work,
petitioner requested that Union Pacific authorize him
to bring his service dog to work as a reasonable
accommodation for his post-traumatic stress disorder.
Pet. App. 70a. Petitioner represented that his service
dog would “allow him to be more comfortable at work,
make working easier, and help him both mentally and
physically.” Id.; see D. Ct. Dkt. 54-6, at 2; D. Ct. Dkt.
55, ¶ 13.
Union Pacific reviewed and denied
petitioner’s request because (among other reasons)
permitting a dog in the cab of a moving freight train
would present a safety risk. Pet. App. 70a; D. Ct. Dkt.
54-7, at 2; D. Ct. Dkt. 55, ¶ 14.
Petitioner renewed his request for an
accommodation in April 2017. Pet. App. 71a. After
further review, Union Pacific again denied the request
because the accommodation would present a safety
risk and violate federal safety regulations. Id. at 76a.
Union Pacific offered petitioner an alternative
accommodation—a position working in a railroad yard
(with no material change in pay) that would enable
him to avoid nights away from home without his
service dog. Pet. App. 77a. Petitioner initially
declined the job, but he later reconsidered and
eventually pursued and accepted a rail-yard position.
Id. at 79a. After some time in that role, however,
petitioner decided to return to his previous job
working as a conductor. Id. at 79a-80a.
Petitioner then filed a charge with the EEOC,
alleging that Union Pacific failed to accommodate his
request to bring his dog into the locomotive cab. Pet.
App. 80a. Petitioner’s charge admitted that he could
7
perform the essential functions of his job without the
accommodation, but he maintained that his requested
accommodation was necessary so that he could enjoy
the equal benefits and privileges of employment. Id.
While petitioner’s charge was pending, Union
Pacific promoted him from conductor to freight train
engineer.
3. After the EEOC issued a Notice of Right to Sue,
petitioner sued in the United States District Court for
the Eastern District of Arkansas. Pet. App. 80a. His
complaint alleged that Union Pacific’s refusal to allow
him to bring his dog into the cab of Union Pacific
freight trains denied him the “equal benefits and
privileges of employment as are enjoyed by his coworkers without disabilities.” D. Ct. Dkt. 4, ¶ 12
(amended complaint). Petitioner has maintained that
his suit concerns only the third definition of
“reasonable accommodation” under the EEOC’s
regulations, 29 C.F.R. § 1630.2(o)(1)(iii), and that he
is able to perform his job’s essential functions with or
without his dog. See D. Ct. Dkt. 4, ¶¶ 12, 19; D. Ct.
Dkt. 55, ¶¶ 18, 31; D. Ct. Dkt. 59, at 15 (plaintiff’s
opposition to summary judgment) (“[t]he first two
prongs [of the regulations] are not at issue in this
lawsuit”).
At trial, petitioner testified that he could perform
the essential functions of the job without
accommodation. D. Ct. Dkt. 190, at 179-180; D. Ct.
Dkt. 191, at 9, 27, 32. Accordingly, the jury was
instructed only on a § 1630.2(o)(1)(iii) theory:
Fourth, allowing Mr. Hopman his requested
accommodation was (1) reasonable and (2) a
modification or adjustment to enable Mr.
Hopman with a disability to enjoy equal
8
benefits and privileges of employment as are
enjoyed by Union Pacific Railroad’s other
similarly
situated
employees
without
disabilities.
Pet. App. 8a-9a (emphasis added).
Petitioner, however, put on no evidence of any
“benefits” or “privileges” of employment Union Pacific
may have denied him. The only reference to those
terms during trial came at the end of petitioner’s
rebuttal during closing arguments, when his counsel
touted the “benefit o[r] privilege” of working “without
the pain and suffering” and “allow[ing petitioner] to
really flourish.” Pet. App. 9a.
The jury returned a verdict in petitioner’s favor,
but the district court granted Union Pacific’s motion
for judgment as a matter of law. Pet. App. 19a-49a.
The court held that freedom from psychological pain
is not among the “benefit[s] or privilege[s] of
employment that [Congress] envisioned employers
being required to offer employees.” Id. at 26a. Under
29 C.F.R. § 1630.2(o)(1)(iii), the court reasoned, the
obligation to provide “equal benefits and privileges of
employment” refers “to employer sponsored placement
or counseling services, and to employer provided
cafeterias, lounges, gymnasiums, auditoriums,
transportation and the like.” Pet. App. 28a. And
“[t]here was no evidence presented at trial that Union
Pacific offers service animals to its non-disabled
employees as a benefit and privilege of employment.”
Id. at 31a. The court further explained that petitioner
had pointed to no “authority where a court has
articulated a right to work without mental or
psychological pain” as a “benefit or privilege of
employment.” Id. at 41a. And many courts held
otherwise. See id. at 41a-43a (collecting cases). The
9
court therefore concluded that petitioner had not
claimed “a cognizable benefit or privilege of
employment that he is entitled to as a reasonable
accommodation.” Id. at 49a.
4. The Eighth Circuit affirmed. The court began
by noting that petitioner “did not claim denial of a job
performance accommodation under 29 C.F.R.
§ 1630.2(o)(1)(ii),” but invoked only “the employer
obligation in 29 C.F.R. § 1630.2(o)(1)(iii) to make
reasonable accommodation relating to benefits and
privileges of employment.” Pet. App. 9a. “[I]n the
district court he explicitly limited his failure-toaccommodate claim to” that subsection. Id. at 11a.
And on that sole claim, the Eighth Circuit “agree[d]”
with the district court that the “‘benefits and
privileges of employment’” under the regulation
“(1) refers only to employer-provided services;
(2) must be offered to non-disabled individuals in
addition to disabled ones; and (3) does not include
freedom from mental or psychological pain.” Id.
The Eighth Circuit focused on the “plain text” of
the regulation, which is “controlling” absent any
contention that the regulation is “contrary to . . . the
statute it is interpreting.” Pet. App. 12a-13a. The
court reasoned that the plain meaning of the phrase
“equal benefits and privileges of employment” refers
to a mandate of “equal access” to “employer-provided
or sponsored services such as health programs,
transportation, and social events.” Id. at 14a (quoting
EEOC, Technical Assistance Manual on the
Employment Provisions (Title I) of the Americans
with Disabilities Act § 3.3 (1992)).
The court
underscored that the EEOC had also construed the
“obligation to make reasonable accommodation” as a
“non-discrimination” mandate—not as imposing
10
duties to provide greater benefits to employees with
disabilities that are not available to employees
without disabilities. Id. at 13a (quoting 29 C.F.R. Part
1630 App., § 1630.9).
The court then turned to petitioner’s contention
that “the ability to work with reduced pain is a benefit
or privilege of employment.” Pet. App. 15a. As an
initial matter, the court concluded that petitioner had
not preserved this argument on appeal because he did
not “stat[e] this is an issue presented” in his opening
brief. Id. (citing Fed. R. App. P. 28(a)(5)). And “[o]n
the merits,” “mitigating pain is not an employer
sponsored program or service.” Id.
“[E]ven putting that formidable obstacle aside,”
the Eighth Circuit continued, an alternative ground
disposed of petitioner’s claim: “The obligation to make
reasonable accommodation . . . does not extend to the
provision of adjustments or modifications that are
primarily for the personal benefit of the individual
with a disability.” Pet. App. 15a (quoting 29 C.F.R.
Part 1630 App., § 1630.9). Because petitioner’s dog
assisted him “throughout his . . . daily activities, on
and off the job,” his dog is “a personal item”—akin to
a wheelchair or eyeglasses—not a “type of reasonable
accommodation” an employer is required to provide.
Id. Accordingly, “[p]roviding a service dog at work so
that an employee with a disability has the same
assistance the service dog provides away from work is
not a cognizable benefit or privilege of employment.”
Id. at 16a.
The court of appeals did not reach Union Pacific’s
additional alternative ground that provision of a
service dog would pose a safety threat and violate
federal safety regulations. Pet. App. 10a n.2.
11
REASONS FOR DENYING THE PETITION
This case presents the narrow question whether a
right to be free from psychological pain is among the
“equal benefits and privileges of employment” an
employer
must
provide
under
29
C.F.R.
§ 1630.2(o)(1)(iii).
The Eighth Circuit found
petitioner failed to properly preserve this question,
and it does not merit this Court’s review in any event.
There is no circuit split. The court of appeals noted
that petitioner “cite[d] no case” going the other way.
Pet. App. 14a. Moreover, the question is not especially
significant, and regardless of how this Court might
resolve it, it would make no difference to the outcome
here because alternative grounds independently
support the decision below.
The Court should deny the petition.
I.
THE EIGHTH CIRCUIT FOUND THAT
PETITIONER DID NOT PROPERLY PRESERVE
THE QUESTION PRESENTED.
A threshold ground suffices to dispose of the
petition: The court of appeals found that petitioner
had not properly preserved his argument that a right
to be free from psychological pain is a cognizable
benefit or privilege of employment under
§ 1630.2(o)(1)(iii). See Pet. App. 15a (petitioner’s
failure to “stat[e] this is an issue presented . . . will not
do” (citing Fed. R. App. P. 28(a)(5))). Petitioner has
not challenged that determination in this Court.
Although the Court may consider petitioner’s
argument (because the court of appeals nonetheless
considered its “merits,” Pet. App. 15a), petitioner’s
failure properly to raise the argument below is a
strong “prudential” consideration against certiorari.
12
City of Springfield v. Kibbe, 480 U.S. 257, 259 (1987)
(per curiam). This Court “ordinarily will not decide
questions not raised or litigated in the lower courts,”
even if “passed on by the Court of Appeals.” Id.; see
Wood v. Milyard, 566 U.S. 463, 473 (2012) (courts
ordinarily “abstain from entertaining issues that have
not been raised and preserved”). “Only in exceptional
cases will this Court review a question not raised in
the court below.” Lawn v. United States, 355 U.S. 339,
362 n.16 (1958). This is not such a case.
II. THE DECISION BELOW DOES NOT CONFLICT
WITH THE DECISION OF ANY OTHER CIRCUIT
AND IS CONSISTENT WITH THE VIEWS OF
THE EEOC.
Petitioner seeks to portray the Eighth Circuit’s
decision as inconsistent with the decisions of other
circuits and the views of the EEOC. Neither portrayal
is accurate.
A. The Eighth Circuit’s decision does
not create a conflict.
Contrary to petitioner’s odd assertion, the Eighth
Circuit did not “frankly” “acknowledg[e]” that it was
creating a lopsided conflict and standing in opposition
to nine other appellate courts. Pet. 19-20. The Eighth
Circuit denied the existence of any such conflict:
Petitioner “cites no case . . . where an employee’s
failure-to-accommodate claim was based entirely on
the benefits and privileges of employment duty in 29
C.F.R. § 1630.2(o)(1)(iii), and the court held that the
duty was not limited to employer provided or
sponsored services and programs.” Pet. App. 14a.
Because “ADA failure-to-accommodate cases are factand context-specific,” any “apparent circuit conflicts”
13
here can be “reconcile[d]” by the “distinguishing facts
and contexts in the various cases.” Id. at 17a.
The Eighth Circuit is correct: There is no conflict.
1. Petitioner’s purported split starts with a
citation to a footnote in a nearly three-decades-old
First Circuit opinion. See Pet. 20 (citing Jacques v.
Clean-Up Grp., Inc., 96 F.3d 506, 515 n.9 (1st Cir.
1996)). That footnote is dicta, and in any event, does
not conflict with the decision below. In Jacques, the
court upheld a jury’s determination that an employer
did not violate the ADA because the jury could
reasonably have concluded that the employee was
“simply unwilling to fulfill the essential function” of
the job. 96 F.3d at 514. In a footnote, the First Circuit
added that an employer may well have a duty to
accommodate if necessary to allow for the “equal
enjoyment of employment privileges and benefits.” Id.
at 515 n.9. But the court summarily concluded that
this additional ground did not help the plaintiff, who
had “presented no evidence” to satisfy that separate,
non-essential-functions ground. Id. Jacques said
nothing to suggest that “employment privileges and
benefits” under § 1630.2(o)(1)(iii) include a right to be
free from psychological pain.
Petitioner’s other First Circuit decisions are even
less relevant. In Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 253, 263 (1st Cir. 1999), the court
held only that a lack of a “disability-related animus”
does not automatically “block [a] failure-toaccommodate claim.” Petitioner notes (at 20) that
Higgins quoted the ADA’s prohibition against
discrimination regarding the “terms, conditions, and
privileges of employment” and described the plaintiff’s
claim as “relating to a hearing impairment that
impeded his ability to work comfortably in the
14
factory.” 194 F.3d at 256, 264 (quoting 42 U.S.C.
§ 12112(a)). But the court did not pass on the merits
of that claim, much less “h[o]ld” that such a claim was
“actionable,” Pet. 20.
Nor is Bell v. O’Reilly Auto Enterprises, LLC, 972
F.3d 21 (1st Cir. 2020), on point. That case held that
the district court erred in instructing the jury “that an
employee must demonstrate that he needed an
accommodation to perform the essential functions of
his job.” Id. at 24 (emphasis omitted). That holding
accords with the Eighth Circuit’s decision below,
which assumes that a plaintiff may request an
accommodation under § 1630.2(o)(1)(iii) even when
the accommodation is unnecessary for an essential
function of the job. See Pet. App. 11a. Bell simply did
not address—and had no occasion to address—
whether accommodations under § 1630.2(o)(1)(iii) are
limited to “existing employer-provided program[s],”
Pet. 20. Its silence on that issue does not entail a
conflict with the Eighth Circuit.
2. The decision below does not conflict with the
Third Circuit’s decision in Colwell v. Rite Aid Corp.,
602 F.3d 495 (3d Cir. 2010). See Pet. 21-22. Colwell
held that the ADA may require employers “to make
reasonable shift changes in order to accommodate a
disabled employee’s disability-related difficulties in
getting to work.” 602 F.3d at 506.
Petitioner makes no effort to explain how that
modest holding conflicts with the decision below. It
does not. Colwell was an essential-functions case: Its
holding turned on “whether an employer is obligated
to accommodate a disability-related problem outside
of the workplace that influences an employee’s ability
to perform the essential functions of her job while at
work.” Colwell, 602 F.3d at 505 n.8 (emphasis added).
15
In analyzing that issue, the Third Circuit consulted
the ADA’s statutory definition of “reasonable
accommodation,” which includes “modified work
schedules.”
Id. at 505 (quoting 42 U.S.C.
§ 12111(9)(B)). But Colwell did not construe the
phrase “benefits and privileges of employment” in
§ 1630.2(o)(1)(iii), which does not pertain to essentialfunctions claims.
3. The Fifth and Sixth Circuit cases cited by
petitioner cannot be part of any circuit conflict. Stokes
v. Nielsen, 751 F. App’x 451 (5th Cir. 2018) (per
curiam), and Gleed v. AT&T Mobility Services, LLC,
613 F. App’x 535 (6th Cir. 2015), are unreported, and
therefore are “not precedent.” Stokes, 751 F. App’x at
452 n.*.
In any event, neither Stokes nor Gleed conflict
with the decision below. Stokes concerned a partially
blind plaintiff’s request for “meeting materials she is
able to read.” 751 F. App’x at 453. The Fifth Circuit
held that her employer’s refusal to accommodate that
request denied the plaintiff a privilege of
employment—readable meeting materials—“enjoyed
by . . . similarly situated employees without
disabilities.” Id. at 454. That unremarkable result
does not contravene the principle that the “benefits
and privileges of employment” “refers only to
employer-provided services” offered equally to
employees with and without disabilities, Pet. App.
11a: An employer may not provide readable materials
to visually unimpaired employees while refusing to
provide readable materials to its visually impaired
employees.
The Sixth Circuit’s decision in Gleed is also
inapposite.
That case concerned an employee’s
request for a chair while working on his employer’s
16
sales floor. The record revealed that the employer did
provide chairs to other employees who needed them.
See 613 F. App’x at 538 (employer “allowed Gleed’s
pregnant coworker to have a chair”). The employer’s
failure to provide the plaintiff a chair therefore denied
him an employer-provided benefit available to
employees without disabilities. See Pet. App. 34a-35a.
Gleed did not purport to construe § 1630.2(o)(1)(iii)
differently than the Eighth Circuit did here.
The only published Sixth Circuit case cited by
petitioner is even further afield.
In EEOC v.
Dolgencorp, LLC, 899 F.3d 428 (6th Cir. 2018), the
court refused to disturb a jury verdict finding an
employer liable under the ADA for failing to
accommodate a diabetic cashier’s request to keep
orange juice at her cash register. But the employer in
Dolgencorp did not contend that the requested
accommodation was not a cognizable benefit or
privilege of employment under § 1630.2(o)(1)(iii). Its
only defense was that it had reasonably
accommodated the cashier because she was permitted
to treat her “hypoglycemia in other ways.” Id. at 434.
The Sixth Circuit’s rejection of that defense has no
bearing on this case.
4. The D.C. Circuit’s decision in Hill v. Associates
for Renewal in Education, Inc., 897 F.3d 232 (D.C. Cir.
2018), resembles the Sixth Circuit’s decision in Gleed.
In Hill, the court held that the plaintiff, a teacher,
could survive summary judgment on his claim that his
employer, an afterschool program, had failed to
reasonably accommodate his request for a classroom
aide. The plaintiff “was the only teacher in his
program who was not assigned a classroom aide.” Id.
at 235 (emphasis added). Consistent with the Eighth
Circuit’s conclusion here, the teacher’s requested
17
accommodation in Hill was thus an employerprovided benefit available to similarly situated
employees without disabilities. Moreover, the court’s
analysis turned on the statutory definition of
“reasonable accommodation,” which authorizes
accommodations “similar” to the employer’s provision
of “qualified readers or interpreters,” id. at 237
(quoting 42 U.S.C. § 12111(9)). Hill did not construe
the phrase “benefits and privileges of employment” in
29 C.F.R. § 1630.2(o)(1)(iii).
5. Implicitly conceding that the Tenth Circuit has
not confronted an on-point ADA case, petitioner
attempts to craft a conflict with two Tenth Circuit
cases
addressing
a
different
statute—the
Rehabilitation Act, which forbids handicap-based
discrimination by federal government employers. See
Pet. 26 (citing Sanchez v. Vilsack, 695 F.3d 1174 (10th
Cir. 2012); Brown v. Austin, 13 F.4th 1079 (10th Cir.
2021)). Even assuming these Rehabilitation Act cases
1
could be relevant, petitioner’s cases miss the mark.
1
Petitioner highlights that Sanchez, 695 F.3d at 1178 n.2, said
in a footnote that the same liability standards govern the ADA
and § 501 of the Rehabilitation Act. But that footnote is dicta,
and Sanchez would not bind the Tenth Circuit in a future ADA
case. Petitioner’s other cited Tenth Circuit case proves the point:
Brown underscored the “heightened accommodation duties”
applicable to federal employers under the Rehabilitation Act. 13
F.4th at 1088 (emphasis added); see also Woodman v. Runyon,
132 F.3d 1330, 1343 (10th Cir. 1997) (“federal employers have
greater duties to accommodate disabled workers under section
501 than . . . those owed by employers under the ADA”).
Decisions from other courts also undercut petitioner’s
assumption that case law under the two statutes is
interchangeable. In the Seventh Circuit, for example, the ADA
does not require an employer to “accommodate a disability that
is irrelevant to an employee’s ability to perform the essential
18
Sanchez construed the Rehabilitation Act to hold
only that “a transfer accommodation for medical care
or treatment is not per se unreasonable, even if an
employee is able to perform the essential functions of
her job without it.” 695 F.3d at 1182. Nothing in the
Tenth Circuit’s rejection of that per se rule conflicts
with the Eighth Circuit’s decision here. The Eighth
Circuit did not address job transfers for medical care.
And nothing in the decision below remotely implies
that “a transfer accommodation for medical care” can
never be a “reasonable accommodation.” Id. If an
employer were to offer job transfers to similarly
situated employees without disabilities, for instance,
the employer may also be required to offer them to
employees with disabilities under the Eighth Circuit’s
interpretation of § 1630.2(o)(1)(iii). Cf. Fjellestad v.
Pizza Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir.
1999) (“Reassignment to a vacant position is a
possible accommodation under the ADA.”).
Brown, 13 F.4th 1079, confirms that there is no
daylight between the Eighth and Tenth Circuit’s
approaches. In Brown, an employee contended that
he was entitled to a job reassignment that supposedly
would have helped him “to live a ‘normal life’” and to
“minimiz[e] stress.” Id. at 1089-90. The Tenth Circuit
functions of her job.” Brumfield v. City of Chicago, 735 F.3d 619,
632 (7th Cir. 2013). But the Rehabilitation Act may require an
accommodation if necessary to “(1) perform the essential
functions of the job in question, (2) pursue therapy or treatment
for their handicap, or (3) enjoy the privileges and benefits of
employment equal to those enjoyed by non-handicapped
employees.” Fedro v. Reno, 21 F.3d 1391, 1395-96 (7th Cir. 1994)
(citations omitted); id. at 1398 (Rovner, J., concurring in part and
dissenting in part) (referring to the “greater burden that section
501 imposes on federal employers”).
19
disagreed, explaining that employers have no general
duty to help their employees live a “normal life.” Id.
at 1089 (noting that Sanchez is limited to the “narrow
circumstances” where an employee requests a
transfer for necessary medical care). Even in the
Rehabilitation Act context, then, Brown squarely
aligns with the Eighth Circuit’s view.
6. Petitioner fares no better in looking to the
Ninth Circuit. Like the Tenth Circuit in Sanchez, the
Ninth Circuit in Buckingham v. United States, 998
F.2d 735, 739 (9th Cir. 1993), merely rejected the
argument that “there is a per se rule that job transfers
are not reasonable accommodations under [the
Rehabilitation Act].” Again, the decision below did
not concern a job transfer, and nothing in the Eighth
Circuit’s reasoning would foreclose a job transfer if
such transfers were offered to similarly situated
employees without a disability, or if the transfer were
pursued under an essential-functions theory. And the
Buckingham court strongly signaled that the plaintiff
would be better off pursuing the latter theory on
remand, by contending that “the accommodation he
seeks is necessary to enable him to perform the
essential functions of [the] job.” Id. at 742-43.
7. The Seventh Circuit is not part of any split.
The Seventh Circuit has not settled on an approach
for when, if ever, accommodations may be required in
a non-essential-functions case. As petitioner notes,
the Seventh Circuit held in Brumfield, 735 F.3d at
631-32, that the ADA does not “enable a plaintiff to
state a failure-to-accommodate claim against her
employer” if she is able to perform the “essential
functions of her job” without an accommodation. See
also Swain v. Wormuth, 41 F.4th 892, 898 (7th Cir.
2022) (“An employer may make an accommodation
20
untethered to an essential function, but it is not
required to do so.” (emphases added)). In dicta, a
different panel of the Seventh Circuit recently
attempted to limit Brumfield by recasting it as a
ticket good for one ride only. See EEOC v. Charter
Commc’ns, LLC, 75 F.4th 729, 739 (7th Cir. 2023)
(describing Brumfield’s facts as “remarkabl[e],” its
analysis as “rather abstract,” and its holding as
correct only “as applied” to its facts). Charter,
however, was an essential-functions case, and the
Seventh Circuit there held only that a modified work
schedule may be required as an accommodation if it is
necessary to enable the employee to “safely” perform
an essential function of his job. Id.
Whichever approach the Seventh Circuit
ultimately adopts on the antecedent question raised
in Brumfield, that circuit is not part of any split on the
question presented here. The decision below assumed
that non-essential-functions claims are cognizable
under § 1630.2(o)(1)(iii), and construing that
provision, the Eighth Circuit held that the “equal
benefits and privileges of employment” refer only to
employer-provided services made available to
employees regardless of disability status. Pet. App.
11a. The Seventh Circuit has not addressed that
interpretive question.
8. Finally, the Montana Supreme Court’s decision
in McDonald v. Department of Environmental
Quality, 214 P.3d 749 (Mont. 2009), does not conflict
with the Eighth Circuit’s decision.
McDonald
concerned an employee’s request for changes to her
employer’s facilities that would permit her to “use her
service animal effectively in the workplace” to manage
her disabilities. Id. at 762. Construing the Montana
Human Rights Act and the ADA, the Montana
21
Supreme Court held that an employer may be
required to make such an accommodation.
While McDonald and this case both concern a
service dog, that is where the similarities end. The
key allegation in McDonald was that the employee
had “difficulty walking” around the facilities and
faced “the risk of falling without [her service dog’s]
assistance to get up.” Id. at 760. Given those facts,
the court zeroed in on the employer’s duty to make
existing facilities readily accessible to an employee
with a disability, id. at 764—part of the statutory
definition of “reasonable accommodation,” 42 U.S.C.
§ 12111(9)(A).
This case, in contrast, does not
implicate that duty. See Pet. App. 41a (explaining
that petitioner could “access his employer’s facilities
without his service animal”). McDonald’s reasoning
also relied heavily on an analogy to regulations
addressing a public accommodation’s duty to make
modifications to “permit the use of a service animal by
an individual with a disability.” 214 P.3d at 762-63
(acknowledging that these regulations are not “on
point” because they do not apply to “employers” under
Title I of the ADA, but treating them as instructive
nonetheless). Here, petitioner raised no argument
under those regulations.
In any event, any conflict between McDonald and
the decision below would be academic. McDonald
construed not only the ADA, but also the Montana
Human Rights Act, a state “omnibus antidiscrimination statute.” Hathaway v. Zoot Enters.,
Inc., 498 P.3d 204, 209 (Mont. 2021). State courts are
free to construe their own anti-discrimination laws
differently—and more broadly—than the federal
ADA. See id.
22
*
*
*
Petitioner comes close to admitting that his
hodgepodge of cases creates no real conflict with the
Eighth Circuit.
Petitioner asserted only a
§ 1630.2(o)(1)(iii) claim, and he concedes that many of
his cited cases “have not” construed that regulatory
provision. Pet. 9. Given the way petitioner litigated
this case below—and the claim he chose to bring—this
case presents no broader statutory interpretation
issue under the ADA, and there is no conflict for this
Court to resolve.
B. The Eighth Circuit’s decision aligns
with the EEOC’s views.
With no divide among appellate courts, petitioner
argues that certiorari is warranted because the
decision below is purportedly “contrary” to the views
of the EEOC. Pet. 29 (collecting administrative
decisions and amicus briefs). As an initial matter,
courts of appeals routinely disagree with the
government; such disagreement is hardly a
“compelling reaso[n]” to grant certiorari. Sup. Ct. R.
10. In any event, there is no disagreement. As the
Eighth Circuit noted, its ruling accords with the
EEOC’s views.
1. Petitioner does not even try to refute the EEOC
guidance cited by the Eighth Circuit in support of its
decision. As the Eighth Circuit explained, Pet. App.
13a, the EEOC’s interpretive guidance on Title I of the
ADA provides that the obligation to make reasonable
accommodations applies to “non-work facilities
provided or maintained by an employer,” “employer
sponsored placement or counseling services,” and
“employer provided cafeterias, lounges, gymnasiums,
auditoriums, transportation and the like.” 29 C.F.R.
23
Part 1630 App., § 1630.9 (emphases added). And an
EEOC “Technical Assistance Manual” addresses the
issue of “Accommodations to Ensure Equal Benefits of
Employment,” by providing that “[e]mployees with
disabilities must have equal access to lunchrooms,
employee lounges, rest rooms, meeting rooms, and
other employer-provided or sponsored services such as
health programs, transportation, and social events.”
Pet. App. 14a (emphasis altered) (quoting EEOC,
Technical Assistance Manual on the Employment
Provisions (Title I) of the Americans with Disabilities
Act § 3.3 (1992)). Petitioner offers no response to the
EEOC’s on-point and unambiguous guidance.
2. Petitioner pivots to the government’s litigating
positions in two amicus briefs. Pet. 29-30. Neither
brief helps petitioner.
The EEOC’s brief in Gleed argued that an
employer may obtain a reasonable accommodation
even if he is able to perform “the essential job
functions without it.” Pet. 29-30 (quoting EEOC
Amicus Br. 10, Gleed v. AT&T Mobility Servs., Inc.,
No. 14-2088 (6th Cir. Nov. 12, 2014)). That premise
does not help petitioner because the Eighth Circuit’s
decision accepts it. And in a passage petitioner does
not quote, the EEOC’s Gleed brief confirms that
“working without pain or the risk of exacerbating a
medical condition is not precisely a ‘privilege’ or
‘benefit’ of employment,” “as those terms normally
connote something additional that an employer
provides to its employees.” EEOC Amicus Br. 16,
Gleed (emphasis added).
The EEOC’s amicus brief in Beasley v. O’Reilly
Auto Parts is similarly unhelpful to petitioner. Pet. 30
(citing EEOC Amicus Br., Beasley v. O’Reilly Auto
Parts, No. 21-13083 (11th Cir. Nov. 8, 2021)). There,
24
the Commission urged that an employer may be
required to provide an “interpreter” to a hearingimpaired employee if necessary to enjoy the benefits
and privileges of “understanding and participating in
workplace meetings, training, or social events.”
EEOC Amicus Br. 25, Beasley.
But those are
employer-provided benefits or programs that are
available to employees without disabilities, so that
statement accords with the Eighth Circuit’s holding
here.
3. The EEOC’s adjudications in Helena E. v.
Kijakazi, 2022 WL 3715444 (E.E.O.C. Aug. 3, 2022),
and Reina D. v. Berryhill, 2017 WL 6422230 (E.E.O.C.
Nov. 29, 2017), add nothing. Pet. 30-31. Those cases
merely cite the Ninth Circuit’s decision in
Buckingham and the Tenth Circuit’s decision in
Sanchez. As explained above, neither Buckingham
nor Sanchez conflicts with the Eighth Circuit’s
decision, and Helena E. and Reina D. are inapposite
for the same reasons.
4. Finally, petitioner cites a ream of disabilityspecific EEOC guidance that, according to petitioner,
focuses on “whether the employee needs an
accommodation to avoid disability-related harm, and
whether the requested accommodation would impose
undue hardship on the employer.” Pet. 31-34. But
that does little more than recite the generic ADA
requirements that a plaintiff must proffer a
reasonable accommodation and that a defendant may
respond by showing undue hardship—the basic ADA
framework applicable in every circuit. See, e.g.,
Peebles v. Potter, 354 F.3d 761, 768 (8th Cir. 2004).
The guidance documents have nothing illuminating to
say on the issue presented in this case—whether a
general right to be free from psychological pain is a
25
“benefit” or “privilege
§ 1630.2(o)(1)(iii).
of
employment”
under
Petitioner also highlights the EEOC’s guidance on
accommodations for diabetes.
Pet. 33-34.
But
petitioner’s discussion only confirms that guidance’s
irrelevance. Petitioner correctly quotes the guidance
as saying that an employer may “have to
accommodate an employee who is unable to work”
while managing her diabetes. Id. But an employee
who is unable to work at all without accommodation
is, by definition, unable to perform the essential
functions of her job—and the Eighth Circuit’s decision
does not address essential-functions claims.
Even if petitioner had succeeded in showing that
the EEOC has taken inconsistent positions over the
years, it is up to the Commission to resolve its own
inconsistencies.
And if the Eighth Circuit has
misinterpreted the EEOC’s regulations, the
Commission can amend its regulations or issue new
guidance. None of this provides any reason for this
Court to grant review.
III. THERE IS NO OTHER REASON TO GRANT
REVIEW.
This Court need not grant review to consider a
question that was not properly presented in the court
of appeals and as to which there is no circuit split.
And there are three other reasons why review is
unwarranted: The Eighth Circuit’s decision is correct;
the question is not particularly significant; and this
case is a poor vehicle for deciding it because
independent alternative grounds support the Eighth
Circuit’s decision, and the Court’s decision on the
question petitioner raises would not change the
outcome of this case.
26
A. The decision below is correct.
Petitioner has never questioned the validity of
§ 1630.2(o)(1)(iii) as an interpretation of the ADA. As
the Eighth Circuit correctly concluded, therefore, his
claim rises or falls based on the proper reading of that
regulation. Pet. App. 12a-13a; see Morton, 467 U.S. at
834. But petitioner does not even attempt to offer a
plausible
alternative
construction
of
§ 1630.2(o)(1)(iii)’s text.
For good reason:
The
decision below is plainly correct.
Section 1630.2(o)(1)(iii) provides that an employer
may be required to provide accommodations that
enable employees with disabilities to enjoy “equal
benefits and privileges of employment” that are
enjoyed by “similarly situated employees without
disabilities.” Two textual clues compel the Eighth
Circuit’s interpretation. First, the text refers to
benefits “of employment.”
As the EEOC
acknowledged in its amicus brief in Gleed, that
phrasing is most naturally understood to refer to
benefits of the job itself—i.e., those provided by one’s
employer. Second, the provision is framed as a nondiscrimination principle, benchmarking the required
“benefits and privileges of employment” to those
received by “similarly situated” employees. Nothing
in that text imposes a duty on employers to provide
employees with disabilities greater privileges—such
as a right to be free from psychological pain—than
they provide to their employees without disabilities.
The Eighth Circuit’s reading of § 1630.2(o)(1)(iii)
also tracks the ADA’s text and purpose. The ADA’s
definition of “reasonable accommodation[s],” which
the EEOC’s regulations supplement, offers examples
only of employer-provided or employer-sponsored
benefits. See 42 U.S.C. § 12111(9); Pet. App. 25a. The
27
statutory definition includes “making existing
facilities” accessible to employees with a disability, as
well as job restructuring, reassignment, provision of
training
materials,
“and
other
similar
accommodations.” 42 U.S.C. § 12111(9). In contrast
to those examples, a right to be free from psychological
pain under § 1630.2(o)(1)(iii) would frustrate the
congressional “desire to keep” the ADA “within
manageable bounds.” Alexander v. Choate, 469 U.S.
287,
299
(1985)
(describing
objectives
of
Rehabilitation Act); Cannice v. Norwest Bank Iowa
N.A., 189 F.3d 723, 728 (8th Cir. 1999) (holding that
employers have no duty to “provid[e] an aggravationfree environment”); see also Pet. App. 26a-27a
(describing how “legislative history also makes clear
that reasonable accommodation does not extend to
adjustments or modifications for the personal benefits
of the individual with a disability”).
Any remaining doubt is laid to rest by the EEOC’s
interpretive guidance. See 29 C.F.R. Pt. 1630, App.
§ 1630.9. All of the EEOC’s “examples of what may
constitute benefits and privileges of employment”
relate to employer-sponsored programs offered to
employees generally. Pet. App. 28a. Again, petitioner
disputes none of this.
The
Eighth
Circuit
properly
construed
§ 1630.2(o)(1)(iii), and there is no error for this Court
to correct.
B. The question presented is not
significant enough to merit review.
This case concerns the meaning of a single,
narrow provision in the EEOC’s implementing
regulations of the ADA. Notwithstanding petitioner’s
effort to raise a broader question, Pet. i, the district
28
court and the Eighth Circuit both correctly recognized
that petitioner consistently and repeatedly disavowed
reliance on any other provision of the EEOC’s
implementing regulations or the ADA itself. See Pet.
App. 11a, 27a-28a.
Interpretive issues about the meaning of 29 C.F.R.
§ 1630.2(o)(1)(iii) rarely arise. As the Eighth Circuit
explained, “[m]ost” ADA failure-to-accommodate
claims concern a request for accommodations
necessary to perform the essential functions of the job.
Pet. App. 4a; see also Allen v. City of Raleigh, 140 F.
Supp. 3d 470, 482 (E.D.N.C. 2015) (“Central to most
ADA failure-to-accommodate claims is whether, with
a reasonable accommodation, an employee with a
disability can perform the essential functions of a
given job.” (emphasis added)). Petitioner’s elaborate
efforts to manufacture a circuit split underscore how
infrequently the issue arises. None of the cases in the
supposed split involved a case in which a court
considered a standalone § 1630.2(o)(1)(iii) claim.
Petitioner opines that “different legal standards”
will apply in different circuits and that “[t]he circuit
split [will] impos[e] significant burdens” on EEOC
district offices and recipients of federal funds. Pet. 3536. As explained above, however, no such split exists.
And because this case concerns the meaning of a
regulation, the EEOC itself can easily resolve any
confusion or ameliorate any “significant burdens”
through guidance or a new regulation. There is no
need for this Court to exercise its certiorari
jurisdiction to address a narrow issue of regulatory
interpretation that the EEOC itself can address.
Nor will the Eighth Circuit’s decision somehow
strip employees of the ADA’s core protections. Contra
Pet. 37-38 (collecting cases where employees would
29
purportedly be denied life-saving accommodations for
“hypoglycemic episode,” “high-risk pregnancy,” and
“severe breathing difficulties” under the Eighth
Circuit’s approach). In many cases, a plaintiff unable
to claim a cognizable “benefit” or “privilege” under
§ 1630.2(o)(1)(iii) may be able to show that the
accommodation is necessary to perform an essential
function of the job under § 1630.2(o)(1)(ii). See, e.g.,
Buckingham, 998 F.2d at 742-43 (opining that
plaintiff had likely adduced sufficient evidence to
satisfy
essential-functions
theory);
Charter
Commc’ns, 75 F.4th at 739 (recasting the plaintiff’s
claim as one where an accommodation was necessary
to “safely” perform the job’s essential functions).
Tellingly, none of petitioner’s cases even cites
§ 1630.2(o)(1)(iii). See Pet. 37. Each is better
understood as an essential-functions case.
C. This case is a poor vehicle.
Even
if
the
proper
interpretation
of
§ 1630.2(o)(1)(iii) were otherwise worthy of this
Court’s attention, this case is a poor vehicle for
addressing it. No matter what the Court might hold
on the question presented, it would make no
difference to the outcome of petitioner’s case because
alternative grounds support the Eighth Circuit’s
decision.
1. The court of appeals explained that “even
putting . . . aside” the question whether the “benefits
and privileges of employment” are limited to
employer-provided or -sponsored programs and
services, petitioner’s claim has a foundational defect:
A service dog is primarily for the personal benefit of
the individual, and therefore is not a “type of
reasonable accommodation” as a matter of law. Pet.
App. 15a.
30
Petitioner asserts that the question presented
provided “[t]he sole basis on which Hopman’s claim
was rejected.” Pet. 38-39. That is demonstrably
wrong, and petitioner elsewhere acknowledges as
much. See Pet. 17 n.4 (noting that “[e]ven if” Union
Pacific had provided service dogs to all employees,
“the court of appeals insisted that Hopman could not
insist that he was entitled to that type of
accommodation, because actually providing a service
dog would be like providing a worker with eyeglasses,
a personal item not a job-related accommodation”).
Petitioner may disagree with the Eighth Circuit’s
conclusion, id., but that ground is not encompassed
within the question petitioner has presented—and it
provides a fully sufficient basis for the Eighth
Circuit’s decision. So the question presented is
academic.
2.
The question presented would make no
difference to the outcome of petitioner’s case for
another reason: Federal regulations prohibit
petitioner’s requested accommodation.
“When Congress enacted the ADA, it recognized
that federal safety rules would limit application of the
ADA as a matter of law.”
Albertson’s, Inc. v.
Kirkingburg, 527 U.S. 555, 573 (1999). Accordingly,
“[a]n accommodation is not reasonable within the
meaning of the ADA if it is specifically prohibited by
a binding safety regulation.” Bey v. City of New York,
999 F.3d 157, 168 (2d Cir. 2021); see also 29 C.F.R.
§ 1630.15(e) (explaining that it is a defense to liability
under the ADA “that another [f]ederal law or
regulation prohibits an action (including the provision
of a particular reasonable accommodation)”).
Compliance with federal safety regulations, therefore,
is a complete defense to petitioner’s claim.
31
Federal railroad safety regulations prohibit
petitioner from bringing his dog into the cab of a
freight train locomotive.
See, e.g., 49 C.F.R.
§ 229.119(c) (prohibiting “obstruction[s]” that could
jeopardize safe operations). For this reason too,
remand would simply result in judgment once again
being entered for Union Pacific. This Court should
reserve review for those cases in which its
intervention is both necessary and determinative.
Here, it is neither.
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
THOMAS H. DUPREE JR.
Counsel of Record
JEFF LIU
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Ave., N.W.
Washington, DC 20036
(202) 955-8500
tdupree@gibsondunn.com
Counsel for Respondent Union Pacific Railroad Co.
January 5, 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.