Petition for Writ of Certiorari — US Airways, Inc. v. Barnett

Supe coun, US

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001250 FEB - 1 200

No. oer tice OF THE CLERK

IN THE

Supreme Court of the Anited States

US AIRWAYS, INC.,

Petitioner,

ROBERT BARNETT,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

LAWRENCE M. NAGIN

JENNIFER C. MCGAREY

US Airways, Inc.

2345 Crystal Drive

Arlington, VA 22227

(703) 872-5210

DIPANWITA DEB AMAR

O’MELVENY & MYERS LLP

275 Battery Street

San Francisco, CA 94111

(415) 984-8700

WALTER E. DELLINGER

(Counsel of Record)

SRI SRINIVASAN*

O’MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

* Admitted in California

ROBERT A. SIEGEL

O’MELVENY & MYERS LLP

400 South Hope Street

Los Angeles, CA 90071

(213) 430-6000

Attorneys for Petitioner

lou)

ee

QUESTIONS PRESENTED

The Americans with Disabilities Act (“ADA”) prohibits

covered employers from “discriminating” in the terms and

conditions of employment, and defines “discrimination” to

include “not making reasonable accommodations to the

known physical or mental limitations of an otherwise quali-

fied individual with a disability who is an applicant or an

employee.” 42 U.S.C. § 12112(b)(5)(A). The questions pre-

sented in this petition are:

l.

Whether, as the en banc Ninth Circuit held below, the

ADA requires an employer to reassign a disabled em-

ployee to a different position as a “reasonable accommo-

dation” even though another employee is entitled to hold

the position under the employer’s bona fide and estab-

lished seniority system, or whether, as other courts of ap-

peals have held, the ADA’s “reasonable accommodation”

requirement does not compel an employer to disregard

the nghts of other employees under its seniority policy.

Whether, as the en banc Ninth Circuit held below, evi-

dence of an employer’s failure to engage in an interactive

process with a disabled employee to identify reasonable

accommodations precludes the employer from obtaining

summary judgment in an ADA action, or whether, as

other courts of appeals have held, any failure on the part

of the employer to engage in such an interactive process

is of no legal consequence in determining whether the

employer violated the ADA.

ll

CORPORATE DISCLOSURE STATEMENT

Petitioner US Airways, Inc., is a wholly owned subsidi-

ary of US Airways Group, Inc., a publicly held company.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........:::+:so+ssessesssessoessvessneseeeseeeees i

CORPORATE DISCLOSURE STATEMENT ...........0--0--0-: ii

TABLE OF AUTHORITIES .........::.:ccescecssessesssessseesseeseeeeeees v

ee nemeneesensunsonsneans l

a eeenueennanes l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. .........::cc:ccesseessessessseessesssesenseveee l

STATEMENT OF THE CASE.........:cccscesssessesssessvessvesseeeveen l

REASONS FOR GRANTING THE WRIT .............-.0-s0000- 11

I. THE NINTH CIRCUIT’S EN BANC

HOLDING THAT THE ADA’S

“REASONABLE ACCOMMODATION”

REQUIREMENT COMPELS

REASSIGNMENT OF A DISABLED

EMPLOYEE TO A POSITION RESERVED

FOR OTHER EMPLOYEES UNDER THE

EMPLOYER’S SENIORITY SYSTEM

CONFLICTS WITH DECISIONS OF

OTHER COURTS OF APPEALS AND

WITH THE LETTER AND SPIRIT OF THE

a 13

iV

TABLE OF CONTENTS

(continued)

fl. THE NINTH CIRCUIT’S EN BANC

HOLDING THAT AN EMPLOYER’S

FAILURE TO ENGAGE IN AN

“INTERACTIVE PROCESS” PRECLUDES

THE GRANT OF SUMMARY JUDGMENT

IN THE EMPLOYER’S FAVOR

CONFLICTS WITH DECISIONS OF

OTHER CIRCUITS AND WITH THE

TERMS AND STRUCTURE OF THE ADA......... 20

ET 30

— Page(s)

Aldrich v. Boeing Co.,

146 F.3d 1265 (10th Cir. 1998), cert.

denied, 526 U.S. 1144 (1999) ......cccccccsssssssvssssssseeesseseeee 17

Benson v. Northwest Airlines, Inc.,

oe 17

Brodie v. General Chem. Corp.,

ae 16

Cassidy v. Detroit Edison Co.,

os 17

Celotex Corp. v. Catrett,

re see Ee tatetinceresnstnnatenessenmntneneneniennmnenniinden 30

Cleveland v. Policy Mgmt. Sys. Corp.,

Cravens v. Blue Cross & Blue Shield,

kL 24

Dalton v. Subaru-Isuzu Auto., Inc.,

141 F.3d 667, 678 (7th Cir. 1998)... eee 18, 19

Daugherty v. City of El Paso,

ES Ce iiedcitccrenenincsrcinunninmeninnnmmetis 19

Davis v. Florida Power & Light Co.,

205 F.3d 1301 (11th Cir. 2000), cert.

Fo Gg 17

Donahue v. Consol. Rail Corp.,

224 F.3d 226 (3d Cir. 2000)...........-cccecccercceereeseessenees 24, 25

Duckett v. Dunlop Tire Corp.,

i OU 19

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Eckles v. Consol. Rail Corp.,

TO 17

EEOC v. Humiston-Keeling, Inc.,

227 F.3d 1024 (7th Cir. 2000)..............ccceceeeseeeeeeeeee 12,19

EEOC v. Sara Lee Corp.,

No. 00-1534, 2001 WL 20797

NE passim

Feliciano v. State of R.1.,

OE 17, 30

Fjellestad v. Pizza Hut of Am., Inc.,

188 F.3d 944 (8th Cir. 1999). ecceeeeeees 21,24

Foley v. Interactive Data Corp.,

Oe 16

Foreman v. Babcock & Wilcox Co.,

A GG 15,17

Garcia-Ayala v. Lederle Parenterals, Inc.,

ON 29

Jackan v. New York State Dep't of Labor,

205 F.3d 562 (2d Cir. 2000), cert. denied,

ee ee Se cnrccentonitpilncaiennenetaniniemsmanatas 21,29

Jackson v. Integra, Inc.,

a 16

Jacques v. Clean-Up Group, Inc.,

i ED 23

Kralik v. Durbin,

i Oe 17

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Moses v. American Nonwovens, Inc.,

pA Lf) le 4 22, 23

Rehling v. City of Chicago,

207 F.3d 1009 (7th Cir. 2000)............ceccccccceeeeeeeeeees 23, 28

Small v. Springs Indus., Inc.,

gk Ee 16

Smith v. Midland Brake, Inc.,

180 F.3d 1154 (10th Cir. 1999)..0000 eee passim

Soto-Ocasio v. Federal Express Corp.,

st 23

Taylor v. Phoenixville Sch. Dist.,

2 es U. 25, 29

Terrell v. USAir,

Coen SR 14

Toussaint v. Blue Cross & Blue Shield,

292 N.W.2d 880 (Mich. 1980)..................ccccececeseceeeeeeeees 16

Vajda v. Arthur Andersen & Co.,

624 N.E.2d 1343 (Ill. App. Ct. 1993) .0......ccccccceceneneeees 16

Wernick v. Federal Reserve Bank,

ig ee 18

Willis v. Conopco, Inc.,

108 F.3d 282 (11th Cir. 1997) ...00........ccccceceeeeeeeeeees passim

Willis v. Pacific Maritime Ass'n,

Nos. 97-16778 & 97-16779, 2001 WL

ee Ge, Ca Se cccerrnnsesesemenessenins 10, 17

vill

TABLE OF AUTHORITIES

(continued)

Page(s)

STATUTES

a ease Oe SD cneemnenerseseneestpnsmmenne |

as Ge ee cnrencennmnmne |

is © Se tetencnnnme 2, 30

ie Oe Ge ctnnnsnmnntinnninnmmensiei 14

ee Oe Se ienccantretnerenenncnnitenememnne 16

A RR 2, 29

a TR © Fr ee ccnersssesemnesnssrermscennnee passim

A 26, 29

as Oe ceertinnnincnncntienntntnenicnneiiintiniinamaiii 26, 28

RULES AND REGULATIONS

ME 21, 27

29 C.F.R. Pt. 1630, App. § 1630.9 0.0... cceeeeeeeeeeeee 21, 27

OTHER AUTHORITIES :

EEOC Enforcement Guidance: Reasonable

Accommodation and Undue Hardship

Under the Americans with Disabilities

Act, (Mar. 1, 1999] EEOC Compl. Man.

SEUUIIITTI Ute lcsiiinisienhihelineitieinscedainiesbeeindenteiatinictiendescnnneestnensuenl 27

PETITION FOR A WRIT OF CERTIORARI

Petitioner US Airways, Inc. (“US Airways”), respectfully

prays that a writ of certiorari issue to review the en banc

judgment of the United States Court of Appeals for the Ninth

Circuit in this case.

OPINIONS BELOW

The en banc opinion of the United States Court of Ap-

peals for the Ninth Circuit in this case is reported at 228 F.3d

1105 (9th Cir. 2000), and is reprinted in the Appendix to this

Petition (“App.”) at App. la. The opinion of the panel of the

Ninth Circuit is reported at 196 F.3d 979 (9th Cir. 1998), and

is reprinted at App 41a. The opinions of the Uniied States

District Court for the Northern District of California (Jensen,

J.) are unreported and are reprinted at App. 79a and App.

88a.

JURISDICTION

The en banc opinion of the Court of Appeals was issued

on October 4, 2000. On December 27, 2000, Justice

O’Connor granted petitioner an extension until February 1,

2001, to file this petition. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Americans with Disabilities Act is codified at 42

U.S.C. §§ 12110 et seqg., and pertinent provisions are re-

printed at App. 11 la.

STATEMENT OF THE CASE

The Americans with Disabilities Act (“ADA” or “Act’”)

2

prohibits covered employers from “discriminating” in the

terms of employment against a “qualified individual with a

disability,” 42 U.S.C. § 12112(a), i.e., “an individual with a

disability who, with or without reasonable accommodation,

can perform the essential functions of the employment posi-

tion that such individual holds or desires,” § 12111(8). The

ADA defines “discrimination” to encompass “not making

reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a dis-

ability who is an applicant or an employee, unless [the em-

ployer] can demonstrate that the accommodation would im-

pose an undue hardship on the operation of the business of

such [employer].” § 12112(b)(5)(A).

This case involves two important questions regarding the

ADA’s “reasonable accommodation” requirement. The first

is whether an employer fails to provide “reasonable accom-

modations” for a disabled employee by refusing to reassign

him to a position that is reserved for more senior employees

under the employer’s bona fide and established seniority sys-

tem. The second is whether evidence of an employer’s fail-

ure to participate in an interactive process with a disabled

employee to identify reasonable accommodations is of any

legal significance in determining whether the employer has

violated the ADA.

A. Factual Background.

Respondent Robert Barnett (“Barnett”) was employed by

US Airways and its predecessor for ten years as a customer

service agent. App. 2a. He worked in various positions in

that role, including at the gate, ticket counter, ramp area,

cargo area, and mailroom. App. 49a-50a. In 1990, Barnett

injured his back while working in a cargo position. He at-

tempted to return to the cargo position after taking a leave of

absence, but was unable to perform the physical require-

ments of handling freight. App. 50a. Barnett therefore

sought to transfer to another position. Jd.

3

For several decades, US Airways has maintained a sen-

iority system for the purpose of equitably determining its

employees’ duty assignments, work shifts, layoffs, and — as

is especially pertinent here — position transfers. App. 59a.

Barnett used his seniority to transfer into a swing-shift posi-

tion in the mailroom. App. 2a. In March and August of

1992, both Barnett’s doctor and his chiropractor recom-

mended that he avoid heavy lifting and excessive bending

and twisting. Jd. The doctor determined that the functions

of the swing-shift mailroom position were within Barnett’s

physical capabilities. Jd.

In August 1992, all of US Airways’ cargo and mailroom

positions came open for bidding from employees according

to the level of seniority they had attained under the com-

pany’s seniority system. App. 50a. Barnett became aware

that employees with greater seniority planned to exercise

their nghts to transfer into the swing-shift position in the

mailroom, and that his senionty thus would only entitle him

to a cargo position. App. 2a. On August 31, 1992, Barnett

wrote a letter to his supervisor requesting as an accommoda-

tion under the ADA that he be assigned to a permanent posi-

tion in the mailroom even though other employees had a

right to that position under the terms of the company’s sen-

iority policy. App. 50a.

US Airways responded the next day by creating a tempo-

rary “limited duty” position for Barnett in the mailroom. /d.

Although under US Airways’ policies such “limited duty”

positions usually expire after sixty working days, the com-

pany maintained Barnett’s limited duty position for almost

five months while they assessed his situation. App. 51a.

Barnett’s supervisors met with him on January 20, 1993,

informing him that he had insufficient seniority for a regular

position in the mailroom, and they could no longer maintain

the extra, limited duty position. /d. They further advised

Barnett that he would be placed on job injury leave based on

4

their understanding that his condition prevented him from

performing the duties of the cargo position to which his sen-

iority nights entitled him, and that his salary would be con-

tinued for One month. /d.

Three days later, Barnett wrote a letter to his supervisors

proposing two alternative accommodations to his disability:

(1) providing him special lifting equipment for the cargo po-

sition; or (2) modifying the cargo position to eliminate all

lifting and moving work, leaving only desk work. /d.

Within the next several days, US Airways received letters

from two of Barnett’s doctors stating that his disability pre-

clude‘ nim from working in any position other than in the

mailroom. /d. In March 1993, the company denied Bar-

nett’s requested accommodations, advising him to bid for

another position. /d. Bamett made no subsequent bids for

any other position. App. 3a.

B. District Court Proceedings.

In November 1994, after obtaining a nght to sue letter

from the Equal Opportunity Employment Commission

(“EEOC”), Barnett filed this action against US Airways in

the United States District Court for the Northern District of

California. App. 5la. Barnett alleged, inter alia, that US

Airways had violated the ADA by (1) denying him the ac-

commodations he proposed, and (2) failing to participate in

an “interactive process” to identify available accommoda-

tions upon learning of his disability. App. 94a.'

The district court granted summary judgment in favor of

US Airways. App. 79a, 88a. The court initially rejected

Barnett’s claim that US Airways had violated the ADA by

denying Barnett’s proposed accommodations, concluding

' Barnett also alleged that US Airways had retaliated against him for

requesting accommodations for his disability; but both the district court

and Ninth Circuit rejected that claim, and it is not in issue here.

5

that none of his proposals involved “reasonable” accommo-

dations under the ADA. See 42 U.S.C. § 12112(b)(5)A).

First, with respect to Barnett’s request that US Airways as-

sign him to a permanent position in the mailroom notwith-

standing the seniority nghts of other employees to the posi-

tion, the court found “the evidence presented by plaintiff . . .

insufficient to create a genuine dispute as to whether plain-

tiffs request for a modification of USAir’s seniority system

was reasonable.” App. 97a. Such a request, the court rea-

soned, “could create significant disruptions in the seniority

policy.” Jd. The court also rejected Barnett’s two proposals

regarding the cargo position.’

After receiving supplemental briefing, the court then de-

nied Barnett’s claim that US Airways had violated the ADA

by not participating in an “interactive process.” App. 79a-

87a. Initially, the court rejected US Airways’ contention that

any failure to engage in an “interactive process” did not itself

afford a basis for liability under the ADA, finding that the

EEOC’s regulations and the decisions of other courts spe-

cifically envision that employers should engage in an

“interactive process.” App. 10la. But US Airways had

satisfied the “interactive process” requirement here, the court

held, because “any delay in responding to plaintiff's requests

for accommodation was attnbutable to efforts made [by US

Airways] to determine the scope and extent of plaintiff's in-

juries and the possible accommodations that might be avail-

able.” App. 83a.

? The court found that Barnett’s request to modify the position to in-

clude only its clerical functions was not a reasonable accommodation

based on the accepted rule that “reasonable accommodation does not

require elimination or reassignment of essential job functions,” App. 98a,

and that his request for special lifting equipment was not a reasonable

accommodation because he had “not demonstrated that the forklifts pro-

vided by [US Airways] were insufficient to allow him to perform the

lifting functions of the cargo position,” App. 99a-100a.

6

C. The Ninth Circuit’s Panel Decision.

1. A divided panel of the Ninth Circuit affirmed. App.

41a. The panel majority first addressed whether Barnett’s

proposed accommodations were “reasonable” under the

ADA, noting that “[t]he question of what constitutes a ‘rea-

sonable’ accommodation has been the subject of much litiga-

tion across this country.” App. 54a. The majority found that

the plaintiff bears the burden of establishing the availability

of a reasonable accommodation, and therefore that “follow-

ing discovery, the plaintiff ... must be able to point to at

least one specific reasonable accommodation that was avail-

able to the employer” and that would enable him to perform

the position’s essential functions. App. 56a. The burden

then “switches to the defendant to show that this accommo-

dation would constitute an undue hardship.” Jd.

The panel majority found that Barnett had faiied to carry

his burden of establishing the availability of a reasonable ac-

commodation. The panel first determined that the ADA did

not require US Airways to make an exception to its seniority

system in order to allow Barnett to obtain a permanent posi-

tion in the mailroom. App. 57a. That conclusion was based

on “well-reasoned opinions from other circuits that have

concluded that the ADA does not require an employer to

give disabled employees preference over non-disabled em-

ployees in hiring and reassignment decisions.” App. 59a.

The panel rejected Barnett’s contention that those decisions

had no application because US Airways’ seniority policy did

not result from a collective bargaining agreement. /d. The

principle underlying those decisions, the panel reasoned, is

that the ADA only requires “equality among disabled and

nondisabled employees in hiring and reassignment deci-

sions,” not “discrimina[tion] against persons free from dis-

ability,” App. 60a (internal quotation marks omitted). And

that principle compelled the conclusion that any accommo-

dation requiring “violat[ion] of U.S. Air’s legitimate senior-

5

ity policy .. . is unreasonable under the ADA.” App. 6la.

The panel also determined that Barnett’s two requests in re-

spect to the cargo position did not constitute reasonable ac-

commodations, essentially for the reasons given by the dis-

trict court. See App. 62a-63a; supra at 5 n.2.

The panel then tured to Barnett’s claim that US Airways

violated the ADA by failing to engage in an “interactive

process,” concluding that the district court had erred in

“holding that an employer can be independently liable for

failing to engage in an interactive process.” App. 63a. In the

panel’s view, “a failure to engage in an interactive process

might expose [an employer] to liability for failing to make

reasonable accommodation.” App. 64a-65a. But while “an

employer’s decision not to engage in an interactive process

[thus] may put it at peril” in a subsequent lawsuit, a failure to

participate in an interactive process “does not create liability

independent from a resulting failure to accommodate the

employee’s disability.” App. 66a. The pertinent question,

therefore, is “whether the employer failed to make required

reasonable accommodations for the employee.” Jd.

2. Judge Betty Fletcher dissented from the panel deci-

sion. Noting that “other circuits ... are split on whether a

cause of action exists for failing to engage in an interactive

process,” she concluded that the ADA imposes liability

against an employer for failing to participate in the interac-

tive process. App. 72a. In this case, Judge Fletcher found,

the district court erred in determining that US Airways had

engaged in the interactive process. And because US Air-

ways failed to participate in the interactive process, she con-

cluded, “the burden placed on Barnett by the majority” to

establish the existence of a reasonable accommodation was

“more than he should be required to bear.” App. 78a.

Judge Fletcher also rejected the majority’s holding that

US Airways was not required to make an exception to its

seniority system to enable Barnett to obtain a position in the

8

mailroom. Relying on the EEOC’s enforcement guidelines,

she found that “reassignment is a reasonable accommoda-

tion” under the ADA “for which disabled employees should

have priority.” App. 75a. And because she deemed reas-

signment to be a reasonable accommodation even in the face

of the seniority rights of other employees, she concluded that

the burden should shift to require US Airways to demon-

strate that making an exception to its seniority policy would

impose “an undue hardship” on the company, 42 U.S.C.

§ 12112(b)(S)(A). App. 76a.

D. The Ninth Circuit’s En Banc Decision.

The Ninth Circuit granted en banc review, and a divided

court rejected the panel majority’s analysis and reversed the

district court’s grant of summary judgment to US Airways,

remanding the case for trial. Judge Fletcher authored the en

banc majority opinion, essentially tracking the reasoning of

her panel dissent.

1. a. Judge Fletcher’s opinion for the en banc court first

found “that U.S. Air’s failure to engage in [the interactive]

process gives rise to liability under the ADA.” App. 4a. The

court rejected US Airways’ submission that “Barnett bears

the burden of demonstrating the availability of a reasonable

accommodation,” reasoning that “exempt[ing] the employer

from the process of identifying reasonable accommodation

.. conflicts with the goals of the ADA.” App. 11a.

After describing in substantial detail the contours of the

“interactive process,” the court set out “the consequences for

employers who fail to engage in the interactive process in

good faith.” App. 17a. The court held that “employers, who

fail to engage in the interactive process in good faith, face

liability for the remedies imposed by the statute if a reason-

able accommodation would have been possible.” App. 18a.

The court “further h{e]ld that an employer cannot prevail at

the summary judgment stage if there is a genuine dispute as

9

to whether the employer engaged in good faith in the interac-

tive process.” /d. (emphasis added); see id. (“Therefore,

summary judgment is available on/y where there is no genu-

ine dispute that the employer has engaged in the interactive

process in good faith.”) (emphasis added).

The court concluded that there was a genuine dispute

here regarding whether US Airways had engaged in the in-

teractive process, precluding the grant of summary judgment

in the company’s favor. App. 19a-2la. The court specifi-

cally addressed Barnett’s two proposals regarding the cargo

position and found that US Airways’ response did “not re-

flect good faith engagement in the interactive process.” App.

20a. In the court’s view, “[t}his is not a case where it is ob-

vious that no modification could enable the employee to per-

form the essential functions of the job or where the employee

has caused the process to break down,” and Barnett’s pro-

posals might have led to establishment of an accommodation

if US Airways had participated in the interactive process. /d.

“Given U.S. Air’s failure to engage in the interactive proc-

ess, liability would be appropriate if a reasonable accommo-

dation would otherwise have been possible.” Id. The court

remanded for trial on that issue.”

b. The en banc court then turned to Barnett’s claim that

US Airways should have made an exception to its seniority

policy to enable him to ob(.in a permanent position in the

mailroom. “The key questions,” the court stated, “are

* Because of the court’s conclusions that US Airways was obligated

to engage in the interactive process and that Barnett thus did not bear the

burden of identifying a reasonable accommodation, see App. | la, the

court did not assess outside of its discussion of the interactive process

whether Barnett’s two requests in respect to the cargo position were rea-

posed accommodations only in the course of elaborating the “conse-

quences for employers who fail to engage in the imteractive process in

good faith.” App. 17a-2la.

10

whether a seniority systém is a per se bar to reassignment as

a reasonable accommodation and whether a disabled em-

ployee seeking reasonable accommodation should have pn-

ority in reassignment.” App. 21a. The court answered both

questions in the affirmative, holding “that reassignment is a

reasonable accommodation to which diszhie! employees

should have priority over nondisabled empioyees,” id., and

“that a seniority system is not a per se bar to reassignment,”

App. 27a. While noting that “most circuits [have] held that

the ADA does not require an accommodation which conflicts

with a collective bargaining agreement,” App. 25a n.9, the

court found that a “seniority system without more should not

bar reassignment” in the absence of a collective bargaining

agreement, App. 26a.*

The court acknowledged that an employer's seniority

policy still might bar reassignment in a particular case. App.

26a-27a. But instead of assessing that question as part of the

inquiry into whether a specific reassignment is a “reasonable

accommodation,” the court ruled that an employer has the

burden of demonstrating that a “particular reassignment

would constitute an undue hardship to the employer,” a

showing that the court deemed US Airways not to have made

for purposes of summary judgment. App. 27a. As a result,

whereas the district court and panel majority had both found

that a reassignment that conflicts with the nghts of other em-

ployees under an employer's seniority system can never con-

stitute a reasonable accommodation, the en banc court held

that such a reassignment always presents a reasonable ac-

commodation, and that the burden therefore rests with the

* & panel of the Ninth Circuit has subsequently held that a proposed

accommodaton that conflicts with a semiority system established through

collective bargaining is per se not reasonable under the ADA. See Willis

v. Pacific Maritime Ass'n, Nos. 97-16778 & 97-16779, 2001 WL 21294

(9th Cir. Jan. 10, 2001). The panel distinguished the en banc decision in

Barnett as pertaining only to semority policies that do not arise through

collective bargaining. /d. at *4.

11

employer to show that making an exception ito its seniority

policy presents an “undue hardship.”

3. Judge Trott, joined by Judges O’Scannlain and Klein-

feld, issued a dissenting opinion. In the dissenting judges’

view, the panel majority was correct in concluding that a re-

assignment in conflict with an employer's established and

bona fide seniority system is not a reasonable accommoda-

tion under the ADA. See App. 36a-40a.°

REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s divided en banc decision raises two

important and recurring questions under the ADA, both of

which implicate a conflict among the courts of appeals. The

first question is whether reassignment of a disabled em-

ployee to a position earmarked for another employee under

the employer’s established and bona fide seniority system

constitutes a reasonable accommodation under the ADA.

The second question is whether an employer’s failure to par-

ticipate in an “interactive process” to identify potential ac-

commodations is of any legal consequence in determining

whether the employer violated the Act, including, as the

Ninth Circuit held below, by operating to preclude an em-

ployer from obtaining summary judgment. The Ninth Cir-

cuit’s resolution of each of those questions conflicts not only

with the decisions of other federal circuits, but also with the

terms, structure, and intent of the ADA.

1. Although the ADA provides that reassignments some-

do so where the position is vacant, the N:nth Circuit held that

reassignment of a disabled employee is a/ways a reasonable

accommodation even if the position is reserved for another

employee under the employer’s established and legitimate

* Judge O’Scanniain wrote a separate dissenting opimon arguing that

Barnett was not disabled under the ADA. See App. 32a-36a.

12

seniority system. That holding squarely conflicts with a de-

cision of the Fourth Circuit and is in substantial tension with

decisions of the Fifth and Tenth Circuits. And because there

is no material distinction under the ADA between employer-

established and collectively bargained seniority policies, the

decision also is inconsistent with the unanimous view among

the circuit courts to have addressed the issue that the ADA

pee ee etn nei et ataanae

a collective bargaining agreement.

shensieeteneliiatiimaiiietiieinns

in the other courts of appeals that the ADA “is not a manda-

tory preference act,” and so does not require displacing the

nghts of other employees under “a legitimate, nondiscrimi-

natory policy of the employer.” EEOC v. Humiston-Keeling,

Inc., 227 F.3d 1024, 1028 (7th Cir. 2000) (per Posner, J.)

(internal quotation marks omitted). The Ninth Circuit’s de-

cision stands in stark contrast with those principles, trans-

forming a statute that prohibits employers from discriminat-

ing against disabled employees into one that requires em-

ployers to discriminate against non-disabled employees.

That holding raises significant questions regarding the status

under the ADA of the bona fide, nondiscriminatory employ-

ment policies of all employers covered by the Act.

2. The Ninth Circuit’s holding that a failure to engage in

the interactive process precludes an employer from obtaining

summary judgment equally merits this Court’s review. The

courts of appeals have adopted differing positions regarding

the relevance of the interactive process in assessing whether

an employer has violated the Act. A number of circuits have

correctly held that the interactive process should play no role

in assessing whether an employer has violated the Act. A

different group of circuits, however, agree with the Ninth

Circuit that the interactive process bears on an employer’s

liability, particularly at the summary judgment stage.

The position of the Ninth Circuit and the other cvurts to

13

attach significance to the inieractive process cannot be

squared with the terms and structure of the ADA. The Act

itself makes no mention of an “interactive process,” and the

EEOC regulations only discuss the “interactive process” as a

recommended means of accomplishing the statutory objec-

tive of identifying reasonable accommodations, not as an end

in itself. There is thus no basis for concluding that a failure

to participate in an interactive process should affect the de-

termination of whether an employer has violated the Act. In

fact, the ADA specifically makes the interactive process

relevant to a logically distinct and subsequent issue, viz.,

whether an employer found to have violated the Act must

pay damages. Contrary to the view of the Ninth Circuit,

therefore, the interactive process should play no role in de-

termining whether an employer has violated the Act, includ-

ing at summary judgment.

I. THE NINTH CIRCUIT’S EN BANC HOLDING

THAT THE ADA’S “REASONABLE ACCOMMO-

DATION” REQUIREMENT COMPELS REAS-

SIGNMENT OF A DISABLED EMPLOYEE TO A

POSITION RESERVED FOR OTHER EMPLOY-

EES UNDER THE EMPLOYER’S SENIORITY

SYSTEM CONFLICTS WITH DECISIONS OF

OTHER COURTS OF APPEALS AND WITH THE

LETTER AND SPIRIT OF THE ADA.

The Ninth Circuit held below that reassignment of a dis-

abled employee is a “reasonable accommodation” under the

ADA even if other employees have nghts to the position un-

der the employer’s established and bona fide seniority pol-

icy, and that an employer therefore must make an exception

to its seniority policy unless it can establish that the action

“would impose an undue hardship on the operation of [its]

business.” 42 U.S.C. § 12112(b)(5)(A). That holding merits

this Court’s review. First, several courts of appeals have

reached the opposite conclusion, holding that reassignment

14

at the expense of another employee’s nghts under a seniority

policy is not a “reascnable accommodation.” In addition, the

issue presents fundamental and recurring questions about the

implications of the ADA’s “reasonable accommodation” re-

quirement for the nondiscriminatory employment policies of

all covered employers.

1. It is an accepted rule that the ADA’s “reasonable ac-

commodation” requirement does not compel an employer to

create a new position. See, e.g., Smith v. Midland Brake,

Inc., 180 F.3d 1154, 1174 (10th Cir. 1999) (en banc). In de-

scribing the scope of an employer’s obligation to reassign a

disabled employee to an existing position, the ADA states

that the “term ‘reasonable accommodation’ may include .. .

reassignment to a vacant position,” 42 U.S.C. § 12111(9).

The statute thus makes clear that a reassignment of a dis-

abled employee “may” constitute a “reasonable accommoda-

tion” in some circumstances, and can only do so when the

position is “vacant.”

The Ninth Circuit nonetheless held that reassignment is

always a “reasonable accommodation” even if an employer’s

legitimate and established seniority policy entitles a different

employee to the position, and that an employer thus can ad-

here to its policy only by proving an “undue hardship” in the

particular circumstances. The decision essentially eliminates

an employee’s threshold burden to establish that a reassign-

ment is a “reasonable” accommodation, holding that any re-

quested reassignment will suffice notwithstanding a more

senior employee’s nights to the position and automatically

shifting the burden to the employer to establish an “undue

hardship.” See Terrell v. USAir, 132 F.3d 621, 626 (11th

Cir. 1998) (“A plaintiff does not satisfy her initial burden by

simply naming a preferred accommodation,” because “she

must show that the accommodation is ‘reasonable.’”’).

The Ninth Circuit’s holding that reassignment is a “rea-

sonable accommodation” even if another employee is enti-

15

tled to the position under an established seniority policy con-

flicts with the opinions of several other circuit courts. In

EEOC v. Sara Lee Corp., No. 00-1534, 2001 WL 20797 (4th

Cir. Jan. 9, 2001), the Fourth Circuit faced precisely the

same situation confronted by the Ninth Circuit below but

reached the opposite conclusion. There, as here, the senior-

ity policy was internal and not part of a collective bargaining

agreement. See id. at *1. But the Fourth Circuit held that a

reassignment in conflict with that policy is per se not a rea-

sonable accommodation, and that the ADA’s reasonable ac-

commodation standard thus does not require an employer to

make an exception to its seniority policy. See id. at *4-*6.

According to Chief Judge Wilkinson’s opinion for the court,

“{a}lthough the ADA allows an employee to transfer to a va-

cant position,” there is “no statutory right to supercede Sara

Lee’s seniority system.” Jd. at *5. “To mandate that a com-

pany exempt workers from this long-standing policy,” the

court explained, “would disrupt the legitimate expectations

of Sara Lee’s long-time employees.” Jd. at *5. The Fourth

Circuit specifically recognized that its decision was in con-

flict with the decision below. See id. at *4.

The Ninth Circuit’s en banc decision is also in substan-

tial tension with the Fifth Circuit’s opinion in Foreman v.

Babcock & Wilcox Co., 117 F.3d 800 (Sth Cir. 1997) and the

Tenth Circuit’s opinion in Smith v. Midland Brake, Inc., 180

F.3d 1154 (10th Cir. 1999) (en banc). Although Foreman

involved a collectively bargained seniority system, with the

Fifth Circuit holding that the ADA did not require the em-

ployer to take action inconsistent with the collective bargain-

ing agreement, the court went on to state: “Regardless, even

if there were no CBA in place, B & W would not be obli-

gated to accommodate Foreman by reassigning him to a new

position.” 117 F.3d at 810.

The Tenth Circuit adopted an intermediate position in

Smith, meanwhile, rejecting the Ninth Circuit’s per se ap-

16

proach and finding that reassignment in conflict with a non-

collectively bargained seniority system is an unreasonable

accommodation in some circumstances. See Smith, 180 F.3d

at 1175-76 (“Because reasonableness is our guide, there may

be other important employment policies besides protecting

nghts guaranteed under a collective bargaining agreement

that would make it unreasonable to require an employer to

reassign a disabled employee to a particular job. For exam-

ple, an industry may have a well entrenched seniority system

which, even though not rooted in a collective bargaining

agreement, is so well established that it gives rise to legiti-

mate expectations by other, more senior employees to a job

that the disabled employee might desire.”’).

Not only is the Ninth Circuit’s decision directly in con-

flict with the Fourth Circuit’s opinion in Sara Lee Corp. and

in substantial tension with opinions from the Fifth and Tenth

Circuits, but the conflict deepens when the many decisions

involving collectively bargained seniority policies are taken

into account. As the Fourth Circuit recognized in Sara Lee

Corp., “[njo reason exists for creating a different rule for le-

gitimate and non-discriminatory policies that are not a part of

a collective bargaining agreement. All workers — not just

those covered by collective bargaining agreements — rely

upon established company policies.” 2001 WL 20797, at

*5.° And a position presumably is equally “vacant” or occu-

pied under the ADA, see 42 U.S.C. § 12111(9)(B), regard-

less whether the seniority system at issue is employer-

implemented or collectively bargained. See Smith, 180 F.3d

° Employer-initiated policies, like collective bargaining agreements,

frequently create legal rights. See id.; see also Jackson v. Integra, Inc.,

952 F.2d 1260 (10th Cir. 1991); Toussaint v. Blue Cross & Blue Shield,

292 N.W.2d 880, 895 (Mich. 1980); Foley v. Interactive Data Corp., 765

P.2d 373, 388-89 (Cal. 1988); Smail v. Springs Indus., Inc., 357 S.E.2d

452 (S.C. 1987); Vajda v. Arthur Andersen & Co., 624 N.E.2d 1343 (Ii.

App. Ct. 1993); Brodie v. General Chem. Corp., 934 P.2d 1263 (Wyo.

1997).

17

at 1170 (“if other employees ... have a legitimate contrac-

tual or seniority right to a vacant position, it is not consid-

ered vacant for reassignment to the disabled employee’’).

The decision below therefore is inconsistent with the

unanimous view among the courts of appeals that an ac-

commodation that interferes with the seniority rights of other

employees under a collective bargaining agreement is per se

unreasonable. See Feliciano v. State of R.I., 160 F.3d 780,

786-87 (1st Cir. 1998); Kralik v. Durbin, 130 F.3d 76, 83 (3d

Cir. 1997); Foreman, 117 F.3d at 809-10; Cassidy v. Detroit

Edison Co., 138 F.3d 629, 634 (6th Cir. 1998); Eckles v.

Consol. Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996); Ben-

son v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir.

1995); Aldrich v. Boeing Co., 146 F.3d 1265, 1271 n.5 (10th

Cir. 1998), cert. denied, 526 U.S. 1144 (1999); Davis v.

Florida Power & Light Co., 205 F.3d 1301, 1306-07 (11th

Cir. 2000), cert. denied, 121 S. Ct. 304 (2000).’

2. The Ninth Circuit’s decision also conflicts with the

broader principle followed in the other courts of appeals that

the ADA does not compel an employer to ignore a bona fide,

nondiscriminatory employment policy. Indeed, the Fourth

Circuit singled out the decision below as the lone outlier

when observing that “[v]irtually all circuits that have consid-

ered the issue have held that the ADA’s reasonable accom-

modation standard does not require an employer to abandon

a legitimate and non-discriminatory company policy.” Sara

Lee Corp., 2001 WL 20797, at *4 (citing cases). That rule of

’ The Ninth Circuit itself has adopted that position, see Willis v. Pa-

cific Maritime Ass'n, Nos. 97-16778 & 97-16779, 2001 WL 21294 (9th

Cir. Jan. 10, 2001), distinguishing the decision below as not involving a

collective bargaining agreement. There is no basis under the ADA for

that distinction, as we have explained, and even if there were, the deci-

sion below still squarely conflicts with the Fourth Circuit’s opinion in

Sara Lee Corp. and is in tension with the opinions of the Fifth Circuit in

Foreman and the Tenth Circuit in Smith.

18

course encompasses seniority policies of the type at issue

here. See id. at *5 (“A seniority system provides a prime

example of a policy that a company is entitled to respect.”);

Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 678 (7th

Cir. 1998) (“Nothing in the ADA requires an employer to

abandon its legitimate, nondiscriminatory company policies

defining . . . entitlements to intra~-company transfers.”).

Such a policy serves important institutional objectives of

consistent and equitable treatment and fair notice, affording a

“neutral and non-arbitrary method of resolving sensitive

questions in the workplace” and “allow[ing] all workers to

know the rules of the game before a decision is made.” Sara

Lee Corp., 2001 WL 20797, at *5. The decision below re-

quires an employer to upset its employees’ legitimate expec-

tations. To be sure, an employer conceivably could attempt

to show in a particular case that making an exception to its

policy presents an “undue hardship,” but that opportunity in

fact is of little practical significance. Because a refusal to

make an exception from its policies might well give rise to

litigation, and because an employer might not prevail in liti-

gation in establishing an “undue burden,” the possibility of

guessing wrong will lead the employer to make exceptions to

its nondiscriminatory policies in virtually every instance. /d.

at *4. (“An employer must . . . be able to set a general policy

and avoid uncertainty and litigation over every request for an

exception.”’).

The Ninth Circuit’s ruling thus essentially converts a

statute that bars discrimination against disabled employees

into one that requires discrimination against non-disabled

employees. That result, as several courts of appeals have

held, is “inconsistent with the nondiscriminatory aims of the

ADA.” Dalton, 141 F.3d at 679; see Wernick v. Federal Re-

serve Bank, 91 F.3d 379, 384-85 (2d Cir. 1996) (“Congress

intended simply that disabled persons have the same oppor-

tunities available to them as are available to nondisabled per-

19

sons”); Daugherty v. City of El Paso, 56 F.3d 695, 700 (Sth

Cir. 1995) (“[W]e do not read the ADA as requiring affirma-

tive action in favor of individuals with disabilities, in the

sense of requiring that disabled persons be given priority in

hiring or reassignment over those who are not disabled.”).

The other circuits therefore have refused to find in the

ADA’s reasonable accommodation standard a requiremeni

that employers make exceptions to their nondiscriminatory

policies. See Dalton, 141 F.3d at 678-89 (temporary light-

duty program); Duckett v. Dunlop Tire Corp., 120 F.3d 1222

(11th Cir. 1997) (salary continuation policy).®

Of course, the ADA -— like all antidiscrimination laws —

requires employers to take measures that benefit a particular

* Then Chief Judge Posner’s opinion for the Seventh Circuit in

EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000), like-

wise concludes that “the Americans with Disabilities Act is n0t a manda-

tory preference act,” id. at 1028, and spells out some of the potential

problems inherent in the Ninth Circuit’s contrary approach:

Suppose that A and B are both applying for the same job, Job

X. A was severely disabled years ago and placed in an office

job with the company. B was less severely disabled, and not

being able to work in his present job has also applied for X. A

is not only more severely disabled than B; he is also, let us as-

sume, certain to perform the job much better than B, although

B meets the minimum qualifications for the job. Under the

[EEOC’s] view, B is entitled to the job.

Or suppose, to take a variant case, that B is a 29-year-old

white male with severe tennis elbow . . . and A is a 62-year-old

black woman with no disability, and again they are applying

for the same job. Under the [EEOC’s] view, even though A is

not only the better applicant but also a member of one of the

minority groups that the laws administered by the EEOC are

supposed to be protecting, B, the white male, is entitled to the

job. Thus on the [EEOC’s] view there is a hierarchy of protec-

tions for groups deemed entitled to protection against discrimi-

nation.

Id. at 1027.

20

set of employees. But where the Ninth Circuit’s decision

below diverges from the approach of other courts of appeals

is in requiring employers to “trample[] on the rights of other

employees” held under legitimate and nondiscriminatory

employment policies. Sara Lee Corp., 2001 WL 20797, at

*6. This Court should grant review to resolve the disagree-

ment among the circuits on the status of nondiscriminatory

employment policies under the ADA and the square conflict

on the status of an employer’s seniority system.

Il. THE NINTH CIRCUIT’S EN BANC HOLDING

THAT AN EMPLOYER’S FAILURE TO ENGAGE

IN AN “INTERACTIVE PROCESS” PRECLUDES

THE GRANT OF SUMMARY JUDGMENT IN THE

EMPLOYER’S FAVOR CONFLICTS WITH DECI-

SIONS OF OTHER CIRCUITS AND WITH THE

TERMS AND STRUCTURE OF THE ADA.

The en banc decision below adds to the widespread dis-

agreement and confusion among the courts of appeals re-

garding the legal consequences under the ADA -— if any — of

an employer’s alleged failure to engage in an “interactive

process” to identify reasonable accommodations. That im-

portant and recurring question warrants this Court’s review.

That is particularly so because the Ninth Circuit’s holding

that an employer’s failure to engage in the interactive proc-

ess precludes the entry of summary judgment in its favor

cannot be squared with the terms and structure of the ADA,

which simply attach no independent legal significance to the

interactive process on the threshold issue of liability.

1. The ADA prohibits an employer from “not making

reasonable accommodations” for a disabled employee, 42

U.S.C. § 12112(b)(S)(A), but it does not suggest that an em-

ployer’s failure to engage in an “interactive process” to iden-

tify reasonable accommodations can itself violate the Act —

indeed, the Act makes no reference to the term “interactive

21

process.” The Ninth Circuit’s decision below, like those of

the other courts that have reached a similar conclusion,

grounds the alleged “interactive process” requirement in the

EEOC’s regulations and interpretive guidelines. See App.

9a. Those regulations and guidelines recommend that the

employer and employee should engage in an “interactive

process” in order “[t]o determine the appropriate reasonable

accommodation,” 29 C.F.R. § 1630.2(0)(3), and they outline

the suggested contours of that process, see 29 C.F.R. Pt.

1630, App. § 1630.9.

As we explain separately, see infra at 25-30, a proper

understanding of the terms and structure of the ADA and of

the EEOC’s regulations reveals that any failure of an em-

ployer to engage in the “interactive process” is of no

independent legal consequence in determining whether there

has been a violation of the Act. But the more salient point

for purposes of assessing whether the issue merits this

Court’s review is that the courts of appeals have reached

conflicting conclusions on the legal relevance under the

ADA of an employer’s nonparticipation in the “interactive

process.” Indeed, Judge Fletcher, who authored the Ninth

Circuit’s en banc decision below, stated in her dissent from

the panel disposition that the “circuits ... are split on

whether a cause of action exists for failing to engage in an

interactive process.” App. 72a. Other courts of appeals have

also explicitly noted the conflict among the circuits. See

Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951 (8th

Cir. 1999) (“Other circuits have considered [the EEOC’s]

regulations and interpretive guidelines” relating to the

interactive process “and have written differing

interpretations of them.”) (comparing cases); cf. Jackan v.

New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir.

2000), cert. denied, 121 S. Ct. 314 (2000) (“The ADA

envisions an ‘interactive process,” and “[cJourts have

struggled to define the appropriate burdens of persuasion

when that process breaks down and an employee seeks relief

on the ground that his employer failed to ‘reasonably

22

sonably accommodate’ his disability.”’).

The division among the circuits on the legal relevance of

the “interactive process” implicates three interrelated issues:

(1) whether an employer’s failure to participate in the “inter-

active process” can independently violate the Act; (2) even if

not, whether evidence of such a failure nonetheless can pre-

clude an employer from obtaining summary judgment; and

relatedly, (3) whether evidence of such a failure affects the

plaintiff's burden to identify a reasonable accommodation at

summary judgment. In this case, the Ninth Circuit held that

“employers, who fail to engage in the interactive process in

good faith, face liability for the remedies imposed by the

statute if a reasonable accommodation would have been pos-

sible,” App. 18a, that “an employer cannot prevail at the

summary judgment stage if there is a genuine dispute as to

whether the employer engaged in good faith in the interac-

tive process,” id., and that the interactive process require-

ment precludes “[p]utting the entire burden on the [plaintiff]

to identify a reasonable accommodation,” App. 1 1a.

By contrast, the Eleventh Circuit has held — correctly, in

our view — that the employer’s participation in the interactive

process is simply of no independent significance in resolving

an ADA claim alleging failure to make reasonable accom-

modations, including at summary judgment. According to

that court, “the ‘interactive process’ envisioned in the regula-

tions” simply does not “carry over to a plaintiff's burden of

production in court,” and a failure to engage in that process

cannot itself violate the ADA and so has no effect on an em-

ployer’s entitlement to summary judgment. Willis v.

Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (affirming

summary judgment for employer on the ground that “where a

plaintiff cannot demonstrate ‘reasonable accommodation,’

the employer’s lack of investigation into reasonable accom-

modation is unimportant”); see Moses v. American Nonwov-

ens, Inc., 97 F.3d 446, 448 (11th Cir. 1996). The Ninth Cir-

23

cuit’s decision below noted its disagreement with the Elev-

enth Circuit’s approach. See App. 11a, 13a.

Other courts of appeals have largely adopted the Elev-

enth Circuit’s position that the interactive process is of no

independent legal significance in assessing whether the em-

ployer has violated the Act’s reasonable accommodation re-

quirement, including at summary judgment.

e The Seventh Circuit has explicitly agreed with the Elev-

enth Circuit that “a plaintiff cannot base a reasonable ac-

commodation claim solely on the allegation that the em-

ployer failed to engage in an interactive process.” Reh-

ling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir.

2000) (affirming summary judgment for employer) (cit-

ing Willis, 108 F.3d at 285, and Moses, 97 F.3d at 448).

e The First Circuit has likewise indicated that failure of the

interactive process is of no independent significance in

assessing whether an employer has violated the Act. See

Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 19

(1st Cir. 1998) (affirming summary judgment for em-

ployer, and holding that allegation of employer’s failure

to engage in interactive process “is of no moment .. . be-

cause no reasonable trier of fact could have found, on

this record, that plaintiff was capable of performing the

duties of [the position] with or without reasonable ac-

commodation.”).”

A different group of circuit courts, however, agrees with

the Ninth Circuit that a failure to participate in the interactive

* Somewhat confusingly, the First Circuit went on to state in the

same case that ‘[t]here may well be situations in which the employer's

failure to engage in an informal interactive process would constitute a

failure to provide reasonable accommodations that amounts to a violation

of the ADA,”” id. (quoting Jacques v. Clean-Up Group, Inc., 96 F.3d

506, 515 (ist Cir. 1996)), indicating that a failure to participate in the

interactive process might itself violate the ADA in some circumstances.

24

process bears to some degree on an employer’s ability to ob-

tain summary judgment:

e The Eighth Circuit “tend{s}] to agree with those courts

that hold that there is no per se liability under the ADA if

an employer fails to engage in an interactive process,”

but holds nonetheless “that summary judgment is typi-

cally precluded when there is a genuine dispute as to

whether the employer acted in good faith and engaged in

the interactive process.” Fjellestad, 188 F.3d at 952-53;

see Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011,

1022 (8th Cir. 2000) (following Fjellestad and holding

that district court erred in granting summary judgment to

employer given genuine dispute as to employer’s partici-

pation in interactive process).

e The Tenth Circuit’s approach appears to be somewhat

similar. It ruled in an en banc decision that the plaintiff

“will not be entitled to recovery unless he can ... show

that a reasonable accommodation was possible and

would have led to a reassignment position” even if the

employer had “failed to fulfill its interactive obligations,”

but that “summary judgment would [nonetheless] be

premature if there is a genuine dispute regarding whether

[the employer] participated in good faith” in the interac-

tive process “in attempting to secure a reassignment posi-

tion” for the plaintiff. Smith v. Midland Brake, Inc., 180

F.3d 1154, 1174 (10th Cir. 1999) (en banc).

e The Third Circuit attaches less significance to the inter-

active process at summary judgment, but still holds that

failure to engage in the process can affect an employer’s

entitlement to summary judgment in limited circum-

stances. See Donahue v. Consol. Rail Corp., 224 F.3d

226, 234-35 (3d Cir. 2000). In particular, the court re-

jected the position that an employer’s nonparticipation in

the interactive process can “give rise to an independent

cause of action” or can “alone suffic{e] to defeat sum-

25

mary judgment,” but determined that “where a universe

of potential accommodations has been identified, if the

employer refuses in bad faith to engage in the interactive

process, ‘we will not readily decide on summary judg-

ment that accommodation was not possible and the em-

ployer’s bad faith could have no effect.’”” Jd. at 234-35

(quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296,

318 (3d Cir. 1999)).

In short, some courts have concluded that the interactive

process simply plays no role in determining whether an em-

ployer has violated the ADA, while others — including the

Ninth Circuit below — have found that failure to engage in

the process can affect to various degrees an employer's abil-

ity to obtain summary judgment on that question.'° The dif-

fering approaches have substantial implications for the litiga-

tion of ADA ciaims nationwide, particularly in respect to the

availability of summary judgment for employers defending

against ADA actions. This Court should take this opportu-

nity to review the Ninth Circuit’s en banc decision on that

issue and to resolve the confusion among the lower courts.

2. The Ninth Circuit’s holding in respect to the interac-

tive process — like that of all courts to attach any legal sig-

nificance to the failure of an employer to participate in such

a process in assessing whether the employer has violated the

Act — also conflicts with the terms and structure of the ADA.

a. Neither the statute nor the regulations support the

conclusion that an employer’s alleged lack of good-faith par-

ticipation in the interactive process should affect the assess-

ment of whether the employer has violated the ADA, includ-

ing at summary judgment. To begin with, the Act’s provi-

sions defining the scope of an employer’s obligations make

'° Also, the First Circuit has indicated that an employer's failure to

engage in the interactive process can itself violate the ADA in some

situations. See n. 9 supra.

26

no mention of an “interactive process.” Instead, they simply

prohibit an employer from failing to “make reasonable ac-

commodations,” without referring to the process followed by

the employer in attempting to accommodate an employee’s

disability. 42 U.S.C. § 12112(b)(5)(A). And it would make

little sense to conclude that failure to follow a particular pro-

cedure in identifying reasonable accommodations can itself

constitute a substantive failure to provide reasonable ac-

commodations. Otherwise, an employee could show a viola-

tion of the ADA even if there was no possible way to ac-

commodate his disability. See Willis, 108 F.3d at 285.

That the ADA attaches no legal significance to the inter-

active process regarding the threshold determination whether

an employer has violated the Act is made especially clear by

Congress’s assignment of legal significance to an employer’s

participation in such a process regarding a wholly different —

and logically subsequent — issue, viz., the extent of recovery

obtainable against an employer found to have violated the

Act. In particular, 42 U.S.C. § 198la, which defines the

availability of damages in a reasonable accommodations

claim under the ADA, specifies that “damages may not be

awarded ... where the covered entity demonstrates good

faith efforts, in consultation with the person with the disabil-

ity who has informed the covered entity that accommodation

is needed, to identify and make a reasonable accommoda-

tion.” 42 U.S.C. § 198la(a)(3). Congress thereby provided

a safe harbor from damages liability for employers who are

found to have violated the Act but who engaged in “good

faith efforts” with the disabled employee to “identify and

make a reasonable accommodation” upon being “informed

... that accommodation is needed.” Jd. It follows that the

interactive process cannot also have bearing on the antece-

dent question whether an employer has violated the ADA by

failing to make reasonable accommodations.

Contrary to the conclusions of the Ninth Circuit and

27

other courts, the EEOC regulations and guidelines do not

suggest otherwise. The regulations recommend that “[t]o

determine the appropriate reasonable accommodation it may

be necessary for the [employer] to engage in an informal,

interactive process with the qualified individual with a dis-

ability.” 29 C.F.R. § 1630.2(0)(3) (emphasis added). But

they do not suggest that the Act independently prohibits an

employer from failing to engage in such a process. The

EEOC’s “interpretive guidance” is largely to the same effect,

advising that the “appropriate reasonable accommodation is

best determined through a flexible, interactive process that

involves both the employer and the qualified individual with

a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9. And al-

though that guidance also indicates that “the employer must

make a reasonable effort to determine the appropriate ac-

commodation,” id., it does not purport to find that the failure

to do so violates the ADA. The EEOC’s “Enforcement

Guidance” is likewise framed in the nature of a

recommendation, stating that the “employer and the

individual with a disability should engage in an informal

process.” EEOC Enforcement Guidance: Reasonable

Accommodation and Undue Hardship Under the Americans

with Disabilities Act, [Mar. 1, 1999] EEOC Compl. Man.

(CCH) § 902, at 5440 (emphasis added). That manual also

specifically notes that an employer’s good faith efforts are

relevant to damages (as opposed to the threshold finding of a

violation). See id. n.22."'

In recommending that employers and employees engage

in an interactive process, the EEOC regulations recognize

that the interactive process is a means of achieving the

ADA’s objective of making reasonable accommodations,

'' Even if the EEOC regulations or guidelines purported to conclude

that an employer's failure to engage in the interactive process can itself

violate the ADA, such a conclusion could not be reconciled with the lan-

guage and structure of the Act.

28

and not the end of the law itself. The courts of appeals that

correctly attach no independent legal significance to the in-

teractive process have reached the same conclusion. See

Willis, 108 F.3d at 285 (Eleventh Circuit); Rehling, 207 F.3d

at 1015-16 (Seventh Circuit).

b. The conclusion of the Ninth Circuit and other courts

of appeals that an employer’s failure to engage in the interac-

tive process affects the resolution of an ADA claim — includ-

ing by altering the standards and burdens at summary judg-

ment — rests primarily on two basic misconceptions. The

first is that an employer would lack sufficient incentive to

participate in an interactive process if the failure to do so had

no legal consequence in the adjudication of an ADA claim.

See App. 18a (“Without the possibility of liability for failure

to engage in the interactive process, employers would have

less incentive to engage in a cooperative dialogue. ...

Therefore, summary judgment is available only where there

is no genuine dispute that the employer has engaged in the

interactive process in good faith.”). That is simply incorrect.

To begin with, the prospect of facing a lawsuit under the

ADA for not making reasonable accommodations presents a

powerful incentive to discuss and explore potential accom-

modations with the employee. And even if the hope of

avoiding litigation altogether were not alone sufficient, the

statutory safe harbor from damages liability in any litigation

undoubtedly presents a substantial incentive to engage in

“good faith efforts” to “identify and make a reasonable ac-

commodation.” 42 U.S.C. § 1981la(a)(3).

The second misconception is that it would be unfair to

place the burden of establishing the existence of a reasonable

accommodation on an employee where an employer has

failed to engage in the interactive process, because the very

purpose of that process is to “identify[] and achiev(e] effec-

tive” accommodations and “[e]mployees do not have at their

disposal the extensive information concerning possible alter-

29

native positions or possible accommodations which employ-

ers have.” App. lla; see Taylor, 184 F.3d at 316. That con-

cer, too, is unfounded. Any informational barriers that may

exist in the workplace at the time that the interactive process

should take place are wholly nonexistent at the time of litiga-

tion: the plaintiff in an ADA action has access to the full

range of tools of discovery to produce evidence of the exis-

tence of a reasonable accommodation. See Jackan, 205 F.3d

at 568 n.4 (rejecting suggestion “that placing the burden on

the plaintiff to prove the existence of a vacancy is unfair,

given the employer’s greater access to this information,” be-

cause “[o]}nce the litigation has begun, the plaintiff can util-

ize the liberal discovery procedures of the Federal Rules... .

to identify vacancies that existed at the pertinent time”).'?

There is thus no basis for relieving the plaintiff's burden

to identify reasonable accommodations at summary judg-

ment — or, alternatively, altering an employer’s ability to ob-

tain summary judgment — based on whether the employer

participated in the interactive process. The plaintiff bears the

burden in an ADA case of identifying a reasonable accom-

modation that the employer did not provide, see 42 U.S.C.

' § 12112(a), (b)(5)(A); Garcia-Ayala v. Lederle Parenterals,

Inc., 212 F.3d 638, 648 (1st Cir. 2000) (“the burden of show-

ing reasonable accommodation is on the plaintiff’), and the

allocation of that burden remains unaffected by the character

of the interactive process, including at the summary judg-

" See also Willis, 108 F.3d at 287 (rejecting plaintiff's argument

“that, as an employee, she was in no position to know what specific ac-

commodations were available or how reasonable they were,” because

“[w]hatever may be said of her ‘burden’ as an employee in the day-to-

day workplace seeking an accommodation for her condition, Plaintiff -

as a litgant bringing an ADA action — has failed to produce evidence

(after the completion of discovery) of the existence of any ‘accommoda-

tion’ at all, ‘reasonable’ or otherwise”) (emphasis in original).

30

ment stage.'’ After all, “[s]ummary judgment for a defen-

dant is appropriate when [a] plaintiff ‘fails to make a show-

ing sufficient to establish the existence of an element essen-

tial to [her] case, and on which [she] wiil bear the burden of

proof at trial.” Cleveland, 526 U.S. at 805-06 (quoting Ce-

lotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The Ninth

Circuit thus erred in holding that US Airways could not “pre-

vail at the summary judgment stage if there [was] a genuine

dispute as to whether [it] engaged in good faith in the

interactive process.” App. 18a. The interactive process

should have nothing to do with whether US Airways was

entitled to summary judgment, and, more generally, should

have no legal significance in assessing whether an employer

failed to make reasonable accommodations in violation of

the Act. This Court should grant review to correct the erro-

neous decision of the Ninth Circuit and to clarify the stan-

dards for resolving “reasonable accommodation” claims un-

der the ADA.

CONCLUSION

For the foregoing reasons, the petition for a writ of cer-

tiorari should be granted.

This Court has made clear that “[aJn ADA plaintiff bears the bur-

den of proving that she is a ‘qualified individual with a disability’ — that

is, a person ‘who, with or without reasonable accommodation, can per-

form the essential functions’ of her job.” Cleveland v. Policy Mgmt. Sys.

Corp., 526 U.S. 795, 806 (1999) (quoting 42 U.S.C. § 12111(8)). It fol-

lows that the plaintiff bears the burden of identifying an available “rea-

sonable accommodation.” See Feliciano v. State of R.1., 160 F.3d 780,

786 (1st Cir. 1998) (“The plaintiff, as the party who must prove that he or

she can perform the essential functions of the position with or without

reasonable accommodation, bears the burden of showing the existence of

a reasonable accommodation.”). -

LAWRENCE M. NAGIN

JENNIFER C. MCGAREY

US Airways, inc.

2345 Crystal Drive

Arlington, VA 22227

(703) 872-5224

DIPANWITA DEB AMAR

O’MELVENY & MYERS LLP

275 Battery Street

San Francisco, CA 94111

(415) 984-8700

Respectfully submitted,

WALTER E. DELLINGER

(Counsel of Record)

SRI SRINIVASAN*

O’MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

* Admitted in California

ROBERT A. SIEGEL

O’MELVENY & MYERS LLP

400 South Hope Street

Los Angeles, CA 90071

(213) 430-6000

Attorneys for Petitioner

APPENDIX

-

j

fe

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 96-16669

D.C. No. CV-94-03874-DLJ

ROBERT BARNETT,

Plaintiff-Appellant,

V.

U.S. AiR, INC.

Defendant-Appellee

Appeal from the United States District Court for the North-

ern District of California

D. Lowell Jensen, District Judge, Presiding

Filed October 4, 2000

Before: Procter Hug, Jr., Chief Judge, Mary M. Schroeder,

Betty B. Fletcher, Harry Pregerson, Diarmuid F.

O’Scannilain, Stephen S. Trott, Andrew J. Kleinfeld, A. Wal-

lace Tashima, Sidney R. Thomas, Raymond C. Fisher,

Ronald M. Gould, Circuit Judges.

Opinion by Judge B. Fletcher;

Gould, Circuit Judge, with whom Circuit Judge Thomas -

joins, ing;

O’Scanniain, Circuit Judge, with whom Circuit Judges Trott

and Kleinfeld join, Dissenting;

Trott, Circuit Judge, with whom Circuit Judges O’Scannlain

and Kleinfeld join, Dissenting

OPINION

B. FLETCHER, Circuit Judge:

2a

Robert Barnett brought suit under the Americans with

Disabilities Act (ADA) and he appeals the district court’s

dismissal on summary judgment of his claims. Barnett, who

suffered a serious back injury while on the job, argues that

U.S. Air discriminated against him by denying him accom-

modation, by failing to engage in the interactive process and

by retaliating against him for filing charges with the Equal

Employment Opportunity Commission (EEOC). This appeal

raises several issues of first impression in this circuit, includ-

ing the nature and scope of an employer’s obligation to en-

gage in the interactive process, whether reassignment is a

reasonable accommodation in the context of a seniority sys-

tem and the appropriate standard for evaluating retaliation

claims under the ADA. We reverse the district court’s grant

of summary judgment in favor of U.S. Air on all claims ex-

cept for the retaliation claim and we remand for trial.

Robert Barnett worked for ten years as a customer ser-

vice agent for U.S. Air and its predecessor Pacific Southwest

Airlines. In 1990, Barnett injured his back while working in

a cargo position for U.S. Air at San Francisco International

Airport. After returning from disability leave, Barnett found

that he could not perform all of the physical requirements of

handling freight. Barnett used his seniority to transfer into

the company’s mail room.

In March and August of 1992, Barnett’s doctor and chi-

ropractor both recommended that he avoid heavy lifting and

excessive bending, twisting, turning, pushing and pulling,

and prolonged standing or sitting. The doctor concluded that

Barnett could perform the job requirements of the swing-

shift mail room position. Barnett learned in August of 1992

that two employees with greater seniority planned to exercise

their seniority nght to transfer to the mail room. Once

bumped, Barnett’s seniority would have limited him to

transferring to jobs in the cargo area. Barnett wrote to his

3a

station manager, Robert Benson, on August 31, 1992 and

requested that he be allowed to stay in the mail room as a

reasonable accommodation under the ADA.

U.S. Air did not respond to Bamett for five months but

allowed him to remain in the mail room for the period while

the company was evaluating his claims. On January 20,

1993, Benson, acting on behalf of U.S. Air, informed Barnett

that he would be removed from the mail room and placed on

job injury leave. There was no substantive discussion of

Barnett’s accommodation request. Following the meeting,

Barnett sent Benson a second letter suggesting two alterna-

tive of accommodating his disability. Barnett pro-

posed either that U.S. Air provide him with special lifting

equipment in the cargo facility or that the cargo job be re-

structured so that he would do only warehouse office work.

Barnett filed formal charges of discrimination with the

EEOC in February of 1993. On March 4, 1993, Barnett re-

ceived a letter from U.S. Air’s Vice President of Human Re-

sources denying Barnett’s alternative requests for

accommodation but informing him that he could bid for any

job within his restrictions. There is no evidence that Barnett

was qualified, without reasonable accommodation, for any

other position in San Francisco or elsewhere in the U.S. Air

system. Barnett made no subsequent bids for any other

position. In August of 1994, the EEOC issued a formal

determination that there was reason to believe that U.S. Air

had discriminated against Barnett by denying him reasonable

accommodation under the ADA.

After Barnett filed suit, the district court granted U.S.

Air’s motion for summary judgment for all claims except

Barnett’s claim that U.S. Air discriminated by not participat-

ing in the interactive process. Upon receiving supplementary

briefing, the district court granted summary judgment to U.S.

Air on the claim as well. Barnett, in his appeal, argues that

U.S. Air violated the ADA by failing to engage in the inter-

4a

active process, by failing to reassign him to the mail room,

by failing to provide other reasonable accommodation and

by retaliating against him.

II

We review de novo the district court’s grant of summary

judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1997 (9" Cir.

1996). In determining whether there are any genuine issues

of material fact, we must view the evidence in the light most

favorable to the nonmoving party. /d.

Barnett claims that U.S. Air had an obligation to engage

in an interactive process to identify possible reasonable ac-

commodations. Barnett further asserts that U.S. Air’s failure

to engage in this process gives rise to liability under the

ADA. The district court concluded that no employer is liable

for failing to engage in the interactive process but that U.S.

Air had sufficiently engaged in the interactive process to

avoid such liability

Although disabled Americans have played prominent

roles in our nation’s history, from the founders of our Consti-

tution to our longest serving President, they have also faced a

long history of exclusion. Congress, in the opening section

of the ADA, recognized that some “43,000,000 Americans

have one or more physical or mental disabilities” and that:

individuals with disabilities are a discrete and insular mi-

nority who have been faced with restrictions and limita-

tion, subjected to a history of purposeful unequal treat-

ment, and relegated to a position of political powerless-

ness in our society, based on characteristics that are be-

yond the control of such individuals and resulting from

stereotypic assumptions not truly indicative of the indi-

vidual ability of such individuals to participate in, and

contribute to, society;

42 U.S.C. § 12101(a){7).

Sa

The ADA was designed to end the exclusion_of people

with disabilities from the workplace and from other realms

of social life. President George Bush explained upon sign-

ing the ADA:

Today, we’re here to rejoice in and celebrate an-

other ‘Independence Day,” one that is long overdue.

With today’s signing of the landmark Americans for

[sic] Disabilities Act, every man, woman, and child

with a disability can now pass through once-closed

doors into a bright new era of equality, independence

and freedom ... Today’s legislation brings us closer

to that day when no Americans will ever again be

deprived of their basic guarantees of life, liberty, and

the pursuit of happiness.

President George Bush, “Remarks on Signing the Ameri-

cans with Disabilities Act of 1990,” (July 26, 1990), re-

printed in Bernard D. Reams, Jr., et. al., eds., Disability Law

in the United States: A Legislative History of the Americans

with Disabilities Act of 1990, Public Law 101-336, Vol. I,

Document No. 9 (1992).

In introducing the ADA, Senator Harkin called the stat-

ute “a broad and remedial bill of rights for individuals with

disabilities. It is their emancipation proclamation.” 135

Cong. Rec. S 4984 (May 9, 1989) (statement of Sen.

Harkin) reprinted in Disability Law, Vol. V1, Document No.

36. Citing a nationwide poll, Senator Harkin pointed out

that sixty-six percent of working-age disabled persons who

are not working, or some 8.2 million persons, want to have a

job and that eighty-two percent of people with disabilities

would give up their government benefits in favor of fill-time

employment. /d. at S 4985. Thus, the workplace protec-

tions of the ADA are central to the Act’s goals of assuring

“equality of opportunity, full participation, independent liv-

ing, and economic self-sufficiency” for people with disabili-

ties. 42 U.S.C. § 12101(a\8).

6a

Title I of the ADA insures full opportunities for people

with disabilities in the workplace by requiring reasonable

accommodation of employees’ disabilities by their employ-

ers. The ADA prohibits employers from discriminating

against a disabled employee’ by “not making reasonable

' The district court determined that Barnett was “disabled” under the

ADA and U.S. Air concedes that they did not raise this issue to the court

on appeal.

In his dissent, Judge O’Scanniain argues that U.S. Air has not

waived the issue of whether Barnett is “disabled.” However, the law of

this circuit is that issues not raised in a party’s opening brief are waived.

See Paracaor Finance v. General Elec. Capital Corp., 96 F.3d 1151,

1168 (9" Cir. 1996) (Judge O’Scannlain writing for the court). Only last

year, Judge O’Scannlain reaffirmed this principle as the law of our circuit

on at least three separate occasions. See Smith v. Marsh, 194 F.3d 1045,

1052 (9 Cir. 1999) (“arguments not raised by a party in its opening brief

are deemed waived.”); Brookfield Communications, Inc. v. West Coast

Entertainment Corp., 174 F.3d 1036, 1046 n.7 (9th Cir. 1999) (“Brook-

field chose not to argue its trademark dilution claim or its state law

causes of action in its opening brief. We accordingly deem those issues

waived.”); Zukle v. Regents of University of California, 166 F.3d 1041,

1045 n.10 (9th Cir. 1999) (Zukle did not raise her race, sex or sexual

harassment claims in her opening brief; therefore she has waived any

appeal from the district court’s grant of summary judgment on these

claims.”). Issues are deemed waived, as Judge O’Scannlain has pointed

out, despite the existence of supplemental briefing. See Kreisner v. City

of San Diego, | F.3d 775, 778 n.2 (9th Cir. 1993).

As we explained in Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.

1994) (internal citation omitted): “We review only issues which are ar-

gued specifically and distinctly in a party’s opening brief. We will not

manufacture arguments for appellant, and a bare assertion does not pre-

serve a claim.” We have consistently regarded issues raised for the first

time in reply briefs as waived. See Omega Environmental, Inc. v. Gil-

barco, Inc., 127 F.3d 1157, 1167 (9th Cir. 1997); McMillan v. United

States, 112 F.3d 1040, 1047 (9” Cir. 1997). Thus, since U.S. Air failed

to raise the issue of Barnett’s “disability” in its opening and reply bref,

this issue was waived despite the filing of supplemental briefs. As U.S.

Air was fit to raise this issue before the district court, before our decision

7a

accommodations to the known physical or mental limita-

tions of an otherwise qualified individual with a disability

who is an applicant or employee, unless such covered entity

can demonstrate that the accommodation would impose an

undue hardship on the operation of the business of such

covered entity.” 42 U.S.C. § 12112(b)(5)/A). The ADA

defines a “qualified individual with a disability” as “an indi-

vidual with a disability who, with or without reasonable ac-

commodation, can perform the essential functions of the

employment position that such individual holds or desires.”

42 U.S.C. § 12111(8).

U.S. Air argues that Barnett is not covered under the

ADA because he was not “qualified” for the cargo position

due to his disability. If Barnett could perform the essential

functions of the cargo position “with or without reasonable

accommodation” he would be qualified under the ADA. 42

in Thompson v. Holy Family Hospital, 121 F.3d 537 (9th Cir. 1997),

came down, it had the opportunity to raise the issue in a cross-appeal.

Furthermore, the facts of this case do not fit under our ruling in

Thompson. In Thompson, the only restriction imposed on the plaintiff

was a twenty five pound lifting restriction. Id. at 539. In contrast here,

as the dissent concedes, Barnett faced further restrictions regarding pro-

longed standing or sitting and excessive or repeated bending, twisting,

ally the only “crucial limitation.” There is no basis in the record for this

conclusion. The question of whether Barnett is “disabled” is analytically

distinct from an analysis of the functions of the mail room position,

which the dissent appears to rely on. Nonetheless, the job analysis of the

mail room position, which did not involve an assessment of the position’s

longed standing or sitting or excessive bending, stooping, pulling or

pushing °

8a

U.S.C. § 12112(b)(5)(A). Furthermore, the statutory defini-

tion of a “qualified individual” covers individuals who can

perform the “essential functions” of a position which the

individual either “holds or desires.” Therefore, even if Bar-

nett could not perform the essential functions of the cargo

position, if he could perform the essential functions of an-

other position in the company which he “desires” he is cov-

ered under the ADA. The plain language of the statute re-

quires this reading of the statute. To read the statute other-

wise would render the word “desires” meaningless. See

Gustasfon v. Alloyd Co., 513 U.S. 561, 574 (1995) (“the

Court will avoid a reading which renders some words alto-

gether redundant”). Our conclusion that a “qualified indi-

vidual with a disability” includes individuals who could per-

form the essential functions of a reassignment position, with

or without reasonable accommodation, even if they cannot

perform the essential functions of the current position is

supported by nearly every circuit which has considered the

issue. See Smith v. Midland Brake, Inc., 180 F.3d 1154,

1161-62 (10" Cir. 1999) (en banc) (collecting cases).

Barnett asserts that U.S. Air failed to fulfill its obliga-

tion to engage in an interactive process to find a reasonable

accommodation. The legislative history makes clear that

employers are required to engage in an interactive process

with employees in order to identify and implement appro-

priate reasonable accommodations. The Senate Report ex-

plained that: “A problem-solving approach should be used

to identify the particular tasks or aspects of the work envi-

ronment that limit performance and to identify possible ac-

commodations . . . employers first will consult with and in-

volve the individual with a disability in deciding on the ap-

propriate accommodation.” S. Rep. No. 101-116, at 34

(1989); see also H.R. Rep. No. 101-485, pt. 2, at 65 (1990).

The ADA authorizes the EEOC to issue regulations im-

plementing the ADA. See 42 U.S.C. § 12116. The EEOC

9a

regulations outline the nature of the interactive process:

To determine the appropriate reasonable accommo-

dation it may be necessary for the [employer] to ini-

tiate an informal, interactive process with the quali-

fied individual with a disability in need of the ac-

commodation. This process should identify the pre-

cise limitations resulting from the disability and po-

tential reasonable accommodations that could over-

come those limitations.

29 C.F.R. § 1630.2(0)(3).

The phrase “may be necessary” is merely a recognition

that in some circumstances the employer and employee can

easily identify an appropriate reasonable accommodation.

Any doubt that the EEOC views the interactive process as a

mandatory obligation is resolved by the EEOC’s interpretive

guidance, which states that “the employer must make a rea-

sonable effort to determine the appropriate accommodation.

The appropriate reasonable accommodation is best deter-

mined through a flexible, interactive process that involves

both the employer and the [employee] with a disability.” 29

C.F.R. Pt. 1630, App. § 1620.9. The EEOC’s Enforcement

Guidance also specifies the nature of the interactive process:

“The employer and the individual with a disability should

engage in an informal process to clarify what the individual

needs and identify the appropriate accommodation.” EEOC

Enforcement Guidance: Reasonable Accommodation and

Undue Hardship Under the Americans with Disabilities Act,

EEOC Compliance Manual (CCH), § 902, No. 915.002

(March 1, 1999), at 5440.

The interactive process is triggered either by a request

for accommodation by a disabled employee or by the em-

ployer’s recognition of the need for such an accommoda-

tion. An employee requesting a reasonable accommodation

should inform the employer of the need for an adjustment

due to a medical condition using “’plain English’ and need

10a

not mention the ADA or use the phrase ‘reasonable accom-

modation.’”” /d. at 5438. In some circumstances, according

to the EEOC, the employee need not even request the ac-

commodation: “An employer should initiate the reasonable

accommodation interactive process without being asked if

the employer: (1) knows that the employee has a disability,

(2) knows, or has reason to know, that the employee is ex-

periencing workplace problems because of the disability,

and (3) knows, or has reason to know, that the disability

prevents the employee from requesting a reasonable ac-

commodation.” Jd. at 5459.

Almost all of the circuits to rule on the question have

held that an employer has a mandatory obligation to engage

in the interactive process and that this obligation is tiggered

either by the employee’s request for accommodation or by

the employer’s recognition of the need for accommodation.

See Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944,

952 (8 Cir. 1999) (“when the disabled individual requests

accommodation, it becomes necessary to initiate the interac-

tive process”); Smith, 180 F.3d at 1172 (holding that the

duty to engage in the interactive process is triggered once

the employee “convey([s] to the employer a desire to remain

with the company despite his or her disability and limita-

tions” and that “the obligation to engage in an interactive

process is inherent in the statutory obligation to offer a rea-

sonable accommodation to an otherwise qualified disabled

employee”); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296,

315 (3d Cir. 1999) (holding that the employer’s duty to en-

gage in the interactive process is triggered “[o]nce the em-

ployer knows of the disability and the employee’s desire for

accommodations” and that the employer must “‘meet the

employee half-way’” by requesting additional information)

(quoting Bultemeyer v. Fort Wayne Community Schools,

100 F.3d 1281, 1285 (7" Cir. 1996)); Bultemeyer, 100 F.3d

at 1285 (“The employer has to meet the employee half-way,

and if it appears that the employee may need an accommo-

lla

dation but doesn’t know how to ask for it, the employer

should do what it can to help”); Taylor v. Principal Fin.

Group Inc., 93 F.3d 155, 165 (5 Cir. 1996) (“Thus, it is the

employee’s initial request for an accommodation which

triggers the employer’s obligation to participate in the inter-

active process of determining one”). But see Willis v.

Conopco, 108 F.3d 282, 285 (11™ Cir. 1997) (holding that

the plaintiff must produce evidence that a reasonable ac-

commodation is available before an employer is obligated to

engage in the interactive process).’

U.S. Air argues that Barnett bears the burden of demon-

strating the availability of a reasonable accommodation. To

put the entire burden for finding a reasonable accommoda-

tion on the disabled employee or, effectively, to exempt the

employer from the process of identifying reasonable ac-

commodation, conflicts with the goals of the ADA. The

interactive process is at the heart of the ADA’s process and

essential to accomplishing its goals. It is the primary vehi-

cle for identifying and achieving effective adjustments

which allow disabled employees to continue working with-

out placing an “undue burden” on employers. Employees

do not have at their disposal the extensive information con-

cerning possible alternative positions or possible accommo-

dations whieh employers have. Putting the entire burden on

the employee to identify a reasonable accommodation risks

? The First Circuit, in Jacques v. Clean-Up Group, Inc., 96 F.3d 506,

515 (1* Cir. 1996), opted for a case-by-case approach but explained that

“[t}here may well be situations in which the employer’s failure to engage

in an informal interactive process would constitute a failure to provide

reasonable accommodation that amounts to a violation of the ADA.”

Later cases have suggested that the employee bears the burden of show-

ing reasonable accommodation but have continued the case-by-case ap-

proach: “[t]hese are difficult, fact intensive, case-by-case analyses, ill-

served by per se rules or stereotypes.” Garcia-Ayala v. Lederle Par-

enterals, Inc., 212 F.3d 638, 650 (1* Cir. 2000).

12a

shutting out many workers simply because they do not have

the superior knowledge of the workplace that the employer

has.

As the Third Circuit explained, since the regulations re-

quire the interactive process to identify appropriate accom-

modations, “it would make little sense to insist that the em-

ployee must have arrived at the end product of the interac-

tive process before the employer has a duty to participate in

that process.” Taylor, 198 F.3d at 316. At the same time,

the employee holds essential information for the assessment

of the type of reasonable accommodation which would be

most effective.’ While employers have superior knowledge

regarding the range of possible positions and can more eas-

ily perform analyses regarding the “essential functions” of

each, employees generally know more about their own ca-

pabilities and limitations.

The statute further does not allow employers to avoid

reasonable accommodation absent a showing of undue hard-

ship. The ADA’s reasonable accommodation requirement

puts the burden on the employer to show that a proposed

* Under the Rehabilitation Act, the Fifth Circuit held that “the bur-

den of persuasion in proving inability to accommodate always remains

on the employer.” Prewitt v. United States Postal Serv., 662 F.2d 292,

308 (5* Cir. 1981). We followed the Fifth Circuit in holding that “the

burden of persuasion in proving inability to accommodate always re-

mains on the employer.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9”

Cir. 1985). However, our later cases under the Rehabilitation Act sug-

gested a higher burden for plaintiffs. See Buckingham v. United States,

998 F.2d 735, 740 (9" Cir. 1993) (“[P)laintiffs must only provide evi-

dence sufficient to make at least a facial showing that reasonable ac-

commodation is possible”); Mustofa v. Clark County Sch. Distr., 157

F.3d 1169, 1176 (9th Cir. 1998) (“{Plaintiff] bears the initial burden of

showing that ‘the suggested accommodation would, more probably than

not, have resulted in his ability to perform the essential functions of his

job”).

13a

accommodation will cause undue hardship.* See 42 U.S.C.

§ 12112(b\(5)(A) (an employer violates the ADA by “not

making reasonable accommodations . . . unless such covered

entity can demonstrate that the accommodation would im-

pose an undue hardship on the operation of the business of

such covered entity”.).

Therefore, we join explicitly with the vast majority of

our sister circuits in holding that the interactive process is a

mandatory rather than a permissive obligation on the part of

employers under the ADA and that this obligation is trig-

gered by an employee or an employee’s representative giv-

ing notice of the employee’s disability and the desire for

accommodating. In circumstances in which an employee is

unable to make such a request, if the company knows of the

existence of the employee’s disability, the employer must

assist in initiating the interactive process.”

We next turn to the requirements of the interactive proc-

ess. Both the legislative history and the EEOC regulations

detail the nature of the interaction required of employers and

employees. The Senate Report outlined four steps which

* In analyzing undue hardship, the focus is on the impact of a possi-

ble accommodation on the employer. Conversely, in assessing reason-

able accommodations the primary focus is on whether the accommoda-

tion effectively allows a disabled employee to successfully perform the

job.

See 29 CFR. pt. 1630, App. § 1630.9.

* In keeping with the statutory requirements, employers must notify

applicants and employees of the reasonable accommodation provisions,

who is entitled to an accommodation and what is necessary to trigger the

interactive process. See 42 U.S.C. § 121115 (“Every employer, em-

ployment agency, labor organization, or joint labor-management commut-

tee covered under this subchapter shall post notices in an accessible for-

mat to applicants, employees, and members describing the applicable

provisions of this chapter.”).

l4a

employers should follow when engaging in the interactive

process:

[T]he Committee believes the employer should con-

sider four informal steps to identify and provide an ap-

propriate accommodation.

The first informal step is to identify barriers to equal

opportunity. This includes identifying and distinguish-

ing between essential and nonessential job tasks and as-

pects of the work environment of the relevant posi-

tion(s).

... Having identified the barriers to job performance

caused by the disability, the second informal step is to

identify possible accommodations.

... Having identified one or more possible accom-

modations, the third informal step is to assess the rea-

sonableness of each in terms of effectiveness and equal

opportunity.

... The final informal step is to implement the ac-

commodation that is most appropriate for the employee

and the employer and that does not impose an undue

hardship on the employer’s operation or to permit the

employee to provide his or her own accommodation if it

does not impose an undue hardship.

... The expressed choice of the applicant or em-

ployee shall be given primary consideration unless an-

other effective accommodation exists that would provide

a meaningful equal employment opportunity.

S. Rep. No. 101-116, at 35 (1989); see also H.R. Rep. No.

101-485, pt. 2, at 66 (1990).

The EEOC outlines the four steps critical to the interac-

tive process. Once a request for a reasonable accommoda-

tion has been made, the EEOC requires an employer to:

15a

(1) Analyze the particular job involved and determine

its purpose and essential functions;

(2) Consult with the individual with a disability to as-

certain the precise job-related limitations imposed by the

individual’s disability and how those limitations could

be overcome with a reasonable accommodation;

(3) In consultation with the individual to be accommo-

dated, identify potential accommodations and assess the

effectiveness each would have in enabling the individual

to perform the essential functions of the position and;

(4) Consider the preference of the individual to be ac-

commodated and select the implement the accommoda-

tion that is most appropriate for both the employee and

the employer.

29 C.F.R. Pt. 1630, App. § 1630.9.

The interactive process requires communication and

good-faith exploration of possible accommodations between

employers and individual employees. The shared goal is to

identify an accommodation that allows the employee to per-

form the job effectively. Both sides must communicate di-

rectly, exchange essential information® and neither side can

delay or obstruct the process. See Smith, 180 F.3d at 1172

(“The interactive process includes good-faith communica-

tions between the employer and employee.”); Beck v. Uni-

* Under the Rehabilitation Act, employers were required to “gather —

sufficient information from the applicant and from qualified experts as

needed to determine what accommodations are necessary to enable the

applicant to perform the job safely.” Mantolete, 767 F.2d at 1423. We

note that an employer cannot ask an employee for documentation unre-

lated to establishing the existence of a disability and the necessity of ac-

commodation. Therefore, an employer generally cannot ask for an em-

ployee’s complete medical records because they are likely to contain

information unrelated to the disability at issue. See EEOC Enforcement

Guidance, EEOC Compliance Manual at 5440.

l6a

versity of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7™ Cir.

1996) (“A party that obstructs or delays the interactive proc-

ess is not acting in good faith. A party that fails to commu-

nicate, by way of initiation or response, may also be acting

in bad faith.”’).

In order to demonstrate good faith, employers can point

to cooperative behavior which promotes the identification of

an appropriate accommodation. Employers should “meet

with the employee who requests an accommodation, request

information about the condition and what limitations the

employee has, ask the employee what he or she specifically

wants, show some sign of having considered employee’s

request, and offer and discuss available alternatives when

the request is too burdensome.” Taylor, 184 F.3d at 317.

The interactive process requires that employers analyze

job functions to establish the essential and nonessential job

tasks. In order to identify the barriers to job performance,

employers must consult and cooperate with disabled em-

ployees so that both parties discover the precise limitations

and the types of accommodations which would be most ef-

fective. The evaluation of proposed accommodations re-

quires further dialogue and an assessment of the effective-

ness of each accommodation, in terms of enabling the em-

ployee to successfully perform the job. See 29 C.F.R. Pt.

1630, App. § 1630.9.

Once the employer and employee have identified and

assessed the range of possible reasonable accommodations,

the legislative history directs that “the expressed choice of

the applicant shall be given primary consideration unless

another effective accommodation exists that would provide

a meaningful equal employment opportunity.” S. Rep. No.

101-116, at 35 (1989); see also H.R. Rep. No. 101-485, at

67 (1990). An appropriate reasonable accommodation must

be effective, in enabling the employee to perform the duties

of the position.

17a

We next turn to the consequences for employers who

fail to engage in the interactive process in good faith. The

Seventh Circuit held that “courts should attempt to isolate

the cause of the breakdown [in the interactive process] and

then assign responsibility” so that “[l]iability for failure to

provide reasonable accommodations ensues only where the

employer bears responsibility for the breakdown.” Beci:, 75

F3d. at 1135-37.

Most circuits have held that liability ensues for failure to

engage in the interactive process when a reasonable ac-

commodation would otherwise have been possible. See

Smith, 180 F.3d at 1174; Taylor, 184 F.3d at 317-18; Bulte-

meyer, 100 F.3d at 1285; Principal, 93 F.3d at 165. The

range of possible reasonable accommodations, for purposes

of establishing liability for failure to accommodate, can ex-

tend beyond those proposed:

an employer who acts in bad faith in the interactive

process will be liable if the jury cah reasonably

conclude thai the employee would have been abie

to perform the job with accommodations. In mak-

ing that determination, the jury is entitled to bear in

mind that had the employer participated in good

faith, there may have been other, unmentioned pos-

sible accommodations.

Taylor, 184 F.3d at 317-318.

A number of circuits have further held that an employer

cannot prevail at summary judgmez.i if there is a genuine

dispute as to whether the employer engaged in the interac-

tive process in good faith. See Fjellestad, 188 F.3d at 953

(“we find that summary judgment is typically precluded

when there is a genuine dispute as to whether the employer

acted in good faith and engaged in the interactive process of

seeking reasonable accommodations”); Taylor, 184 F 3d at

318 (“where there is a genuine dispute about whether the

employer acted in good faith, summary judgment will typi-

-_-

18a

cally be precluded”); Baert v. Euclid Beverage, Lid., 149

F.3d 626, 633-34 (7 Cir. 1998) (refusing to grant an em-

ployer summary judgment because disputes of fact remained

about which party caused the breakdown in the interactive

process).

The interactive process is the key mechanism for facili-

tating the integration of disabled employees into the work-

place. Employers who reject this core process must face

liability when a reasonable accommodation would have

been possible. Without the interactive process, many em-

ployees will be unable to identify effective reasonable ac-

commodations. Without the possibility of liability for failure

to engage in the interactive process, employers would have

less incentive to engage in a cooperative dialogue and to

explore fully the existence and feasibility of reasonable ac-

commodations. The result would be less accommodation

and more litigation, as lawsuits become the only alternative

for disabled employees seeking accommodation. This is a

long way from the framework of cooperative problem solv-

ing based on open and individualized exchange in the work-

place that the ADA intended. Therefore, summary judg-

ment is available only where there is no genuine dispute that

the employer has engaged in the interactive process in good

faith.

We hold that employers, who fail to engage in the inter-

active process in good faith, face liability for the remedies

imposed by the statute if a reasonable accommodation

would have been possible. We further hold that an em-

ployer cannot prevail at the summary judgment stage if

there is a genuine dispute as to whether the employer en-

gaged in good faith in the interactive process.’

” If an employer fails to participate in or obstructs the interactive

process, injunctive relief is an available remedy to insure compliance

with the requirement of good faith interaction and to require reasonable

19a

In this case, Barnett triggered the interactive process ob-

ligation by communicating to U.S. Air his desire for ac-

commodation based on his disability. In fact, Barnett went

even further and identified, in addition to assignment to the

mail room, at least two different accommodations which

might have allowed him to remain in the cargo facility.

However, U.S. Air appears not to have seriously considered

the suggestions.

U.S. Air rejected all three of Barnett’s proposed reason-

able accommodations and offered no practical alternatives.

The special lifting equipment Barnett requested for the

Cargo position may well have been an adequate reasonable

accommodation. Barnett researched mechanical lifting de-

vices and proposed that U.S. Air purchase a low-tech device

to assist hirn in the loading and unloading of cargo. U.S.

Air’s only offer was for a forklift to lift individual suitcases.

Proposing the use of a forklift to lift an individual suitcase is

like giving Barnett a shotgun to swat a fly or a Phillips head

screwdriver for a flat screw. U.S. Air might as well have

told Barnett to use a backhoe. That a tool performs a similar

functions doesn’t make it a proper tool for a particular job.

Barnett sought a mechanical accommodation to compensate

for his disability; U.S. Air, in effect, ignored his request.

Thus, U.S. Air’s failure to engage in the interactive process

foreclosed at least one potentially reasonable accommoda-

tion.

It is less clear whether Barnett’s other suggestion of

modifying the cargo position to require only desk work was

a reasonable accommodation. Although U.S. Air argues

that this accommodation would require the elimination of

accommodation. See 42 U.S.C. § 12117(a) (making injunctive relief

available under Title 1 of the ADA by incorporating the remedies of §

2000e-5).

20a

essential functions of the cargo job, it may only have ‘e-

quired reassignment of functions among personnel. Al-

though U.S. Air had performed a job analysis on the posi-

tion in 1992, for purposes of workers’ compensation, this

analysis did not involve an assessment of the position’s es-

sential functions. The duties of the cargo position were di-

vided between front office, warehouse and lifting cargo.

Not all cargo agents lifted cargo on any given day and em-

ployees were apparently allowed to trade job duties and

avoid lifting cargo. Yet, the title of the position is a general

one of “cargo agent.” Thus, there is a sufficient factual dis-

pute to require further proceedings to evaluate whether this

accommodation would have required any elimination of the

essential functions of the position.

U.S. Air rejected each of Barnett’s several proposed rea-

sonable accommodations and merely offered that Barnett

could apply for any position for which he was qualified

given his restrictions and for which he had sufficient senior-

ity. U.S. Air did not seek to have a dialogue with Barnett

but instead rejected his proposed accommodations by letter.

The time between Barnett’s initial accommodation request

and U.S. Air’s rejection letter was nearly five months. This

delay and U.S. Air’s failure to communicate do not reflect

good faith engagement in the interactive process on the part

of U.S. Air. Nor is U.S. Air’s offer to Barnett to bid on

other jobs, a nght he already had, a reasonable accommoda-

tion of a disabled employee. There is no evidence in the

record that Barnett was qualified for any other position,

without accommodation, in San Francisco or elsewhere in

the U.S. Air system. This is not a case where it is obvious

that no modification could enable the employee to perform

the essential functions of a job or where the employee has

caused the process to break down. Given U.S. Air’s failure

to engage in the interactive process, liability would be ap-

propriate if a reasonable accommodation would otherwise

have been possible. There remains conflicting evidence in

2la

the record as to whether a reasonable accommodation with-

out undue hardship to the employer was possible. Thus, a

triable issue of fact exists on this issue.

Il

Barnett argues that it would have been a reasonable ac-

commodation for U.S. Air to allow him to remain in the mail

room, by making an exception to its seniority policy. The

ADA explicitly states that reasonable accommodation may

include reassignment. See 42 U.S.C. § 12111(9)(B). The

key questions are whether a seniority system is a per se bar

to reassignment as a reasonable accommodation and whether

a disabled employee seeking reasonable accommodation

should have priority in reassignment.

The EEOC’s enforcement guidance makes it clear that

reassignment is a reasonable accommodation to which dis-

abled employees should have priority over non-disabled em-

ployees and even when transfers are normally not allowed:

The ADA requires employers to provide reasonable ac-

commodations to individuals with disabilities, including

reassignment, even though they are not available to oth-

ers. Therefore, an employer who does not normally

transfer employees would still have to reassign an em-

ployee with a disability, unless it could show that the re-

assignment caused an undue hardship. And, if an em-

ployer has a policy prohibiting transfers, it would have to

modify that policy in order to reassign an employee with

a disability, unless it could show undue hardship.

EEOC Enforcement Guidance, EEOC Compliance Manual

at 5454.

The EEOC explains that a modification in workplace

policy can be a reasonable accommodation, absent undue

hardship: “[Reassignment] must be provided to an employee

who, because of a disability, can no longer perform the es-

sential functions of his/her current position, with or without

22a

reasonable accommodation, unless the employer can show

that it would be undue hardship.” /d. at 5452.

U.S. Air argues that the ADA guarantees Barnett no

more than the opportunity to apply for and compete for re-

assignment. However, the EEOC leaves no doubt that reas-

signment involves more than a mere opportunity for dis-

abled employees to compete: “Reassignment means that the

employee gets the vacant position if s/he is qualified for it.

Otherwise, reassignment would be of little value and would

not be implemented as Congress intended.” /d. at 5456.

En banc decisions in several circuits adopt the EEOC’s

position. In Aka v. Washington Hospital Center, 156 F.3d

1284 (D.C. Cir. 1998) (en banc), the D.C. Circuit, sitting en

banc, rejected the argument that reassignment entitles a dis-

abled employee to nothing more than a chance to compete

for a position. The D.C. Circuit explained that the view that

the ADA requires no priority for disabled employees in re-

assignment “misunderstand[s] both the text and legislative

history of the statute, and deviate[s] from the construction of

the statute by other circuits ... Indeed the ADA’s reference

to reassignment would be redundant if permission to apply

were all it meant.” /d. at 1304.

The Tenth Circuit, sitting en banc, also made clear that

the ADA’s “reassignment obligation must mean something

more than merely allowing a disabled person to compete

equally with the rest of the world” and pointed out that reas-

signment is “one of the forms of reasonable accommodation

specifically mentioned by the statute to be utilized if neces-

sary and reasonable to keep an existing disabled employee

employed by the company.” Smith, 180 F.3d at 1165.

The question of whether an employer’s unilaterally im-

posed seniority system trumps a disabled employee’s right

to reassignment has not been answered directly by any other

23a

circuit.* Although there is no legislative history specifically

on a seniority system outside of the collective bargaining

context, the legislative history that does exist argues against

* At best other circuits have opined in dicta as to what approaches

the courts should take. In Smith, 180 F.3d at 1176, the Tenth Circuit, in

discussing the various situations an employer might face in making a

reassignment opined (although the issue was not before it) that “an indus-

try may have a well entrenched seniority system which, even though not

rooted in a collective bargaining agreement, is so well established that it

gives rise to legitimate expectations by other, more senior employees to a

job that the disabled employee might desire. Requiring an employer to

disrupt and violate any such well-established reasonable exceptions of

seniority nights in order to favor a disabled employee in a job reassign-

ment could, at least under some circumstances, constitute a fundamental

and unreasonable altercation in the nature of the employer's business.”

The court cited in Aka at 156 F.3d at 1305, Aka liad at issue a dispute

over Aka’s job qualifications and the meaning of the collective bargain-

ing agreement that allowed the employer the latitude in some circum-

stances in reassignment of disabled employees after stating “It seems

clear that WHC [the employer] had power under Section 14.5 of the CBA

to reassign its disabled employees to vacant positions in at least some

circumstances.” /d. at 1303. It remanded for trial. The court voncluded

with this statement: “Given the large number of contingencies that could

preclude such a conflict, we see no need to address whether, if such a

conflict arose, the CBA of the ADA would give way in the circumstances

of this cases.” /d. at 1306. Aka refers to Dalton v. Subaru-Isuzu Automo-

bile, Inc., 141 F.3d 667(7th Cir. 1998). The issue before the Seventh

Circuit were the qualifications of disabled employees for available jobs:

“If any of the plaintiffs had been able to point to a particular job that was

filled by a temporary worker while the plaintiff was on disability leave,

and then had been able to show that he of she could have done that job

consistent with the relevant qualifications, summary judgment would

have been wrong. But no one was able to do so.” /d at 679-680. In

dicta, it opined that the duties of the employer under the ADA to reassign

do not go so far as to extend [the duty to reassign] “to virtually every

other job in a company, from the president to the janitors. Nothing ing

the ADA requires and employer to abandon its legitimate, nondiscrimina-

tory company policies defining job qualifications, prerequisites, and enti-

tlements to intra-company transfers.” /d.

24a

any per se rule barring reassignment in the context of

seniority systems.

The legislative history indicates that a collective bar-

gaining agreement can be a factor in determining the rea-

sonableness of an accommodation but rejects any per se bar.

As explained in the House Report:

if a collective bargaining agreement reserves cer-

tain jobs for employees with a given amount of

seniority, it may be considered as a factor in de-

termining whether it is a reasonable accommoda-

tion to assign an employee with a disability

without seniority to the job. However, the

agreement would not be determinative on the is-

sue.

H.R. Rep. No. 101-485, pt. 2, at 63 (1990); see also S. Rep.

No. 101-116, at 32 (1989). In addition to rejecting a per se

bar, both reports envision that collective bargaining agree-

ments will incorporate provision allowing compliance with

the ADA “by ensuring that agreements negotiated after the

effective date of this title contain a provision permitting the

employer to take all actions necessary to comply with this

legislation.” Jd.

The EEOC aiso rejects any blanket rule that a collective

bargaining agreement trumps a reasonable accommodation:

“In the EEOC’s view, such a per se rule nullifies Congress’

intent that undue hardship always be determined on a case-

by-case basis.” EEOC Guidance, EEOC Compliance Man-

ual at 5463. Instead, the EEOC requires a fact specific

analysis which treats the collective bargaining agreement

(CBA) as another factor in judging undue hardships:

First, an employer should determine if it could

provide a reasonable accommodation that would

remove the workplace barrier without violating

the CBA. If no reasonable accommodation ex-

25a

ists that avoids violating the CBA, then the ADA

requires an employer and a union, as a collective

bargaining representative, to negotiate in good

faith a variance to the CBA so that the employer

may provide a reasonable accommodation, ex-

cept if the proposed accommodation unduly bur-

dens the expectations of other workers (i.e.,

causes undue hardship). Undue hardship must

be assessed on a case-by-case basis to determine

the extent to which the proposed accommodation

would affect the expectations of other employ-

ees. Among the relevant factors to assess would

be the duration and severity of any adverse ef-

fects caused by granting a variance and the num-

ber of employees whose employment opportuni-

ties would be affected by the variance.

Id.

Both the legislative history and the EEOC reject any per

se rule barring reasonable accommodation even when reas-

signment would conflict with a collective bargaining agree-

ment.” Here, where there is no collective bargaining agree-

* Despite this guidance in the legislative history and the EEOC, most

circuits including our own have reached the opposite conclusion and held

that the ADA does not require an accommodation which conflicts with a

collective bargaining agreement. See Davis v. Florida Power & Light

Co., 205 F.3d 1301, 1307 (11 Cir. 2000); Willis v. Pacific Maritime

Assoc., 162 F.3d 561 (9th Cir. 1998); Feliciano v. State of Rhode Island,

160 F.3d 780,787 (1* Cir. 1998); Cassidy v. Detroit Edison Co., 138 F.3d

629, 634 (6 Cir. 1998); Kralik v. Durgin, 130 F.3d 76, 83 (3d Cir.

1997); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5 Cir.

1997); Eckles v. Consol. Rail Corp., 94 F.3d 1041, 1051 (7 Cir. 1996);

Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10™ Cir. 1995); Benson v.

Northwest Airlines, 62 F.3d 1108, 1114 (8" Cir. 1995). Willis has been

held in abeyance pending the completion of the en banc proceedings in

this case. None of the cases listed in this foomote confronted the ques-

26a

ment, no bargained for rights are involved. It would seem

that the seniority system without more should not bar reas-

signment. Without reassignment as a reasonable accommo-

dation, even in the context of a seniority system, the goals of

the ADA could easily be frustrated. Any per se rule barring

reassignment because of conflicts with a seniority system

would sharply limit the range of available accommodations

without any required showing of an undue burden on the

employer. In many cases this would eliminate the most ef-

fective or the only effective reasonable accommodation.

A per se bar conflicts with the basic premise of the

“ADA, which grounds accommodation in the individualized

needs of the disabled employee and the specific burdens

which such accommodation places on an employer. Only in

the vent of “undue hardship” can a seniority system be a bar

to reasonable accommodation. 42 U.S.C. § 12112(b)(5)(A).

The ADA defines “undue hardship” as “an action requiring

significant difficulty or expense.” 42 U.S.C. 12111(10)(A).

The statute offers a list of factors to be considered in ap-

praising whether there is undue hardship, including the cost

of the accommodation, the overall financial resources of the

company and the scope of the employer’s operations. See

42 U.S.C. 12111(10)(B).'° While reassignment might con-

tion presented to us — we confront a seniority system not grounded in a

collective bargaining agreement.

'° The ADA has no language protecting the operation of a “bona fide

seniority system” similar to that which is included in Title VII. See 42

U.S.C. § 2000e-2(h). We note that the “undue hardship” standard in the

ADA is substantially more demanding than the hardship standard in Title

VII in the context of “reasonable accommodation” for the religion of

employees. See Trans World Airlines v. Hardison, 432_U.S. 63, 84

(1977); Balint v. Carson City, Nevada, 180 F.3d 1047, 1053 (9” Cir.

1999) (en banc) (relying on Hardison in a religious discrimination claim

bought under Title VII). The legislative history supports this interpreta-

27a

stitute an undue burden in some cases, courts cannot assume

that which is the employer’s burden to prove.

We hold that reassignment is a reasonable accommoda-

tion and that a seniority system is not a per se bar to reas-

signment. However, a seniority system is a factor in the un-

due hardship analysis. A case-by-case fact intensive analy-

sis is required to determine whether any particular reas-

signment would constitute an undue hardship to the em-

ployer. If there is no undue hardship, a disabled employee

who seeks reassignment as a reasonable accommodation, if

reece rae for a position, should receive the posi-

on rather merely have an rtuni

non-disabled pote ce — pie aniins

Summary judgment was inappropriate in this case. Bar-

nett initiated the interactive process and suggested remain-

ing in the mail room as his preferred accommodation. U.S.

Air did not show that the proposed accommodation was an

undue hardship. Bamett already occupied the mail room

position at the time of his request for reasonable accommo-

dation. Therefore, permanently reassigning Barnett to the

mail room position as a reasonable accommodation did not

require “bumping” any other employee from the position.

While this accommodation would eliminate one position

tion. See S. Rep. No. 101-116 at 36 (1989) (“The Committee wishes to

make it clear that the principles enunciated by the Supreme Court in TWA

v. Hardison, 432 U.S. 63 (1977), are not applicable to this legislation. );

see also H. Rep. No. 101-485, p. 2, at 68 (1990) (“By contrast, under the

ADA, reasonable accommodation must be provided unless they rise to

the level of ‘requiring significant difficulty or expense’ on the part of the

employer, in light of the factors noted in the statute - i.e. a significantly

higher standard than that articulated in Hardison. This higher standard is

a in light of the crucial role that reasonable accommodation

plays in ensuring meaningful lo ti

amen z gful employment opportunities for people with

28a

from the seniority bid process, U.S. Air has failed to dem-

onstrate that doing so would cause an undue hardship. It

would need to demonstrate that accommodating Barnett in

this fashion would cause undue disruption in its seniority

system. In its rebuttal, U.S. Air offered only the statement

of its Vice President of Human Resources, who feared a

“domino effect,’ and a copy of its seniority policy. Yet the

record provides no information concerning the number of

ADA claimants at U.S. Air, their seniority, or their need to

be accommodated by exceptions to he seniority rules.'’

Mere speculation is insufficient to support summary judg-

ment that the requested accommodation would impose un-

due hardship. We hold that a triable issue of facts exists.

IV

Barnett claims that U.S. Air retaliated against him for his

request for accommodation by placing him on involuntary

job injury leave in January of 1993 and by terminating his

salary continuance in February of 1993. The district court

granted summary judgment to U.S. Air on this claim.

The ADA provides that: “[nJo person shall discriminate

against any individual because such individual has opposed

any act or practice made unlawful by this chapter.” 42

U.S.C. § 12203(a). The ADA further makes it “unlawful to

coerce, intimidate, threaten or interfere with any individual

in the exercise or enjoyment of, or on account of his or her

having exercised or enjoyed . . . any night granted or pro-

tected by this chapter.” 42 U.S.C. § 12203 (b).

In order to resolve Barnctt’s retaliation claim, it is neces-

sary to establish a framework for analyzing retaliation claims

under the ADA. Most other circuits have adopted the Title

VII framework for analyzing ADA retaliation claims: See

'! Interestingly, U.S. Air does provide an exception in its seniority

system for catastrophic illness.

29a

Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d

155, 159 (2d Cir. 1999); Talanda v. KFC National Manage-

ment Co., 140 F.3d 1090, 1095 (7™ Cir. 1998); Sherrod v.

American Airlines, Inc., 132 F.3d 1112, 1122 (5" Cir. 1998);

Penny v United Parcel Service, 128 F.3d 408, 417 (6" Cir.

1997); Stewart v. Happy Herman's Cheshire Bridge, 117

F.3d 1278, 1287 (11" Cir. 1997); Soileau v. Guilford of

Maine, Inc., 105 F.3d 12, 16 (1* Cir. 1997).

Adopting the Title VII framework incorporates a com-

prehensive body of law analyzing workplace retaliation.

This seems useful. Therefore, we join our sister circuits in

adopting the Title VII retaliation framework for ADA re-

. taliation claims.

To establish a prima facie case of retaliation under the

ADA, a plaintiff must show (1) that he or she engaged in or

was engaging in activity protected by the ADA, (2) the em-

ployer subjected him or her to an adverse employment deci-

sion, and (3) that there was a causal link between the pro-

tected activity and the employer’s action. See Yartzoff v.

Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987).

The district court concluded that Barnett failed to make

out a prima facie case because he failed to demonstrate a

causal connection between his request for accommodation

and his involuntary placement on job injury leave. Barnett

produced sufficient evidence to make a causal connection

based on the temporal proximity of the adverse action and

his request for reasonable accommodation. See Jd. at 1376.

However, U.S. Air met its burden in offering a “legiti-

mate non-retaliatory explanation for its [employment] deci-

sions.” /d. After receiving Barnett’s request for accommo-

dation, U.S. Air created a temporary limited duty position for

him. After five months, U.S. Air put Barnett on job injury

leave.

Barnett failed to raise a genuine issue of fact suggesting

30a

that U.S. Air’s reason for putting him on job injury leave was

a mere pretext. U.S. Air may have been mistaken as to its

obligations under the ADA but it did keep Barnett in the lim-

ited duty position for twice the usual time. Absent evidence

that U.S. Air’s decision was for retaliatory reasons, Barnett’s

retaliation claim should not have survived summary judg-

ment.

V

We reverse the district court’s summary judgment dis-

missal of Barnett’s ADA discrimination claims. U.S. Air has

failed to engage in good faith in the interactive process. U.S.

Air should face liability for the remedies imposed by the

statute if reasonable accommodations would be possible

without an undue hardship to the company. Barnett’s re-

quest to remain in the mail room was a reasonable accom-

modation absent proof of undue hardship and possible ac-

commodations in the cargo facility may have been reason-

able accommodations absent proof of undue hardship. Only

a trial can resolve the factual dispute over whether reason-

able accommodation can be made for Barnett. Therefore,

Barnett’s discrimination claims should be remanded to the

district court’s summary judgment dismissal of Barnett’s re-

taliation claims is affirmed.

AFFIRMED in part, REVERSED in part and RE-

MANDED.

GOULD, Circuit Judge, with whom Circuit Judge Thomas,

joins, Concurring;

I concur in the court’s excellent opinion, but set forth my

views concerning the relationship between the demonstration

of reasonableness and undue hardship. The court’s opinion

touches upon the relationship between reasonable accommo-

dation and undue hardship. See Majority Op. at n. 4. I be-

lieve that a broader explication of this relationship is desir-

3la

able.

Under the statute, a reasonable accommodation is one

that will allow the employee to perform the essential func-

tions of the job. An accommodation is reasonable if it will

work for the employee. Reasonableness has nothing to do

with the “difficulty or expense” that the employer will face

in making the accommodation.

The ADA defines “reasonable accommodation” with

examples of accommodations that self-evidently will assist

people with various disabilities to perform the essential func-

tions of their jobs. See 42 U.S.C. § 12111(9). Nothing in the

definition refers to the employer or to the effect on the em-

ployer of providing such accommodation. See Steven

Miller, Disability Civil Rights and a New Paradigm for the

Twenty-First Century: The Expansion of Civil Rights Beyond

Race, Gender and Age, | U. Pa. J. Lab. & Employment L.

511, 519 (1998) (noting this distinction).

The statute’s definition of “discrimination” supports this

reading of “reasonable.” The ADA defines discrimination as

4 failure to provide a reasonable accommodation unless do-

ing so would result in undue hardship to the employer. Dis-

crimination 1s: “not making reasonable accommodations to

the known physical and mental limitations of an otherwise

qualified individual with a disability . . . unless such [em-

ployer] can demonstrate that the accommodation would im-

pose an undue hardship on the operation of the business of

such covered entity.” 42 U.S.C. § 12112(b)(5)(A).

. Undue hardship is defined as “an action requiring sig-

nificant difficulty or expense, when considered in light of the

factors set forth in subparagraph (B).” 42 U.S.C. §

12111(10) (emphasis added). This definition expressly in-

cludes economic considerations and other difficulties for the

employer.

We must read a statute to give effect to each work in it,

32a

so that none are superfluous. See State v. Watkins, 939 F.2d

710, 715 (9" Cir. 1991). The word “reasonable” in 42

U.S.C. § 12112(6)(5)(A) must refer to something other than

the effects of the difficulty or expense on the employer of

providing an accommodation. The statute makes sense only

if “reasonable” refers to the effects of the accommodation on

the employee’s ability reasonably to perform the essential

functions of the job and does not include effects of difficulty

or expense on the employer.

This relationship between the demonstration of

reasonableness and undue hardship has several virtues. First,

it fits the ADA structure and follows the ADA text. Second,

it avoids the evident confusion in trying to give meaning to

both “undue hardship” and “reasonable” if “reasonable”

were to include the same effects on the employer as are con-

sidered in “undue hardship” And third, the employee can

better determine what accommodation will work for him or

her, while the employer has greater access to information

about whether a particular accommodation will cause an un-

due hardship.

Under the statute’s express terms, the “difficulty or ex-

pense” of an accommodation should not be considered in

assessing “reasonable accommodation,” but, rather, consid-

ered only in assessing “undue hardship.”

O'SCANNLAIN, Circuit Judge, with whom Circuit Judges

Trott and Kleinfeld join, dissenting:

The sweeping language and exalted tone of the court’s

wide-ranging opinion make clear that it aspires to offer a de-

finitive interpretation of the Americans with Disabilities Act

(ADA). This might be less disturbing if this case actually

involved an American with a disability. Because the court

reaches out to decide several important issues of first impres-

sion in a case without a proper plaintiff, | must respectfully

33a

dissent.

I

Robert Barnett suffers from back problems. Barnett’s

doctor has imposed upon him permanent restrictions that

prohibit him from excessive bending, twisting, and turning;

prolonged standing or sitting; and lifting twenty-five pounds

or more. Barnett claims that these restrictions prevent him

from serving in the cargo position but do not prevent him

from working in the swing-shirt mailroom position. The

functions of the mailroom position include occasional bend-

sitting; and some lifting. The crucial limitation imposed

upon Barnett, then, is the twenty-five pound lifting restric-

tion, because it is the only restriction that would prevent him

from handling cargo, oat wees et geaeeen hie Sian sete

ing in the mailroom.

The record evidence in this case clearly establishes that

Barnett is not disabled within the meaning of the ADA. In

Thompson v. Holy Family Hospital, 121 F./3d4 537 (9" Cir.

1997), we affirmed the summary judgment dismissal of an

ADA case on the ground that the plaintiff failed to create a

genuine issue of material fact as to her disability. Cynthia

Thompson, like Robert Barnett, suffered from back prob-

lems, and her doctor, like Barnett’s doctor, prohibited her

from lifting more than twenty-five pounds. See id. at 539.

The Thompson court found this limitation inadequate to es-

tablish a triable issue as to the plaintiff's disability. Al-

though it acknowledged that lifting and working constitute

“major life activities” for purposes of the ADA’s implement-

ing regulations, Thompson’s twenty-five pound lifting re-

striction did not constitute “the requisite evidence that she is

substantially limited with respect to these activities.” Jd. at

539-40 (expressing agreement with “{a] number of courts

(that) have held that lifting restrictions similar to Thomp-

son’s are not substantially limiting” (citing cases)). Ai-

———<—<«

34a

though Thompson’s lifting restrictions prevented her from

serving as a nurse performing “total patient care” duties, just

as Barnett’s identical lifting restriction prevented him from

serving in the cargo position, the panel held that “(the in-

ability to perform one particular job does not constitute [a

substantial] limitation” on the general ability to work. /d. at

540.

The similarities between Thompson and the instant case,

in terms of both the plaintiff's claimed disabilities and the

employer’s responses thereto, are striking. Under Thomp-

son, it is clear that no genuine issue of material fact exists as

to Barnett’s disability. The district court’s grant of summary

judgment should be affirmed.

Il

The court addresses (or dodges) the question whether

Barnett is “disabled” under the ADA in a footnote, noting in

passing that the district court concluded that Barnett was

“disabled” under the ADA and that U.S. Air did not raise the

issue of Barnett’s disability on appeal. Maj. Op. at 12805

n.1. The failure of U.S. Air to file a cross-appeal, however,

in no way precludes us from affirming based on Barnett’s

failure to establish that he is disabled. Contrary to the sug-

gestion in that footnote, it is well-settled that we may affirm

a grant of summary judgment based on any ground supported

by the record. See, e.g., Albertson's, Inc. v. Untied Food and

Commercial Workers Union, 157 F.3d 758, 760 n.2 (9" Cir.

1998); Intel Corp. v. Hartford Accident and Indem. Co., 952

F.2d 1551, 1556 (9 Cir. 1991). In Intel, the district court

granted Intel’s motion for summary judgment, holding, in

part, that Hartford, which had issued an insurance policy to

Intel, waived its reliance on one of the policy’s exclusions.

We affirmed the grant of summary judgment, but on a differ-

ent ground. We examined the policy’s exclusion, and held

that there was no material issue of fact as to the exclusions’

application. See id. at 1561.

35a

Poe a gram yp

ty (or in a separate appeal, the parties

have had more than ample opportunity to brief and to argue

the issue in both the district court and this court. Before the

district court, U.S. Air argued that Barnett’s lifting restric-

tions did not render him disabled under the ADA; Barnett

opposed granting summary judgment on that basis. In a

fairly brief discussion, the district court determined that

summary judgment could not be properly granted on the is-

sue because of evidence showing Barnett’s back injury to be

“serious and permanent.”

On August 26, 1996, Barnett filed his notice of appeal in

our court; U.S. Air did not file a cross-appeal.'? One year

later, on August 8, 1997, we decided Thompson. In our or-

der filed September 16, 1997, we specifically directed the

parties to file supplemental briefs discussing Thompson.

These briefs were filed in advance of an oral argument be-

fore the three-judge panel, held on October 8, 1997.

In both the district court and this court, the parties have

had the opportunity to develop, and have actually developed,

the issue of Barnett’s disability, both before, and in light of,

Thompson. As a result, nothing bars us from taking the pru-

dential path and refraining from deciding weighty issues in a

weightless case. Cf Belotti v. Baird, 428 U.S. 132, 143-44

1976). In Belotti, the Court held that the district court should

have abstained from deciding a constitutional issue, stating

that, “It is not entirely clear that appellants suggested the

same interpretation in the District Court as they suggest here.

Nevertheless, the fact that full arguments in favor of absten-

tion may not have been asserted in the District Court does

not bar this Court’s consideration of the issue.” Jd. at 143

"? The fact that Thompson was decided well after the time for U.S.

Air to file a notice of appeal had passed may explain in U.S. Air’

failure to take a cross-appeal. - "

36a

n.10 (internal citation omitted). Cf Delange v. Dustra

Const. Co., 183 F.3d 916, 919 n.3 (9th Cir. 1999) (recogniz-

ing that this circuit may exercise its discretion to review is-

sues raised for the first time on appeal).

Ill

Barnett’s case simply cannot bear the weight that the

court seeks to place upon it. A case so transparently lacking

in merit is an inappropriate vehicle for deciding multiple

questions of first impression concerning the proper construc-

tion of an important statute (and creating a circuit split in the

process, see maj. op. at 12821 n.8). The court has issued

what in effect amounts to a lengthy advisory opinion on the

ADA; when this case returns to the district court, the only

appropriate course of action wil! be to dispose of it under

Thompson.

Because Barnett is simply not disabled under the ADA,

the district court’s grant of summary judgment was proper

and should be affirmed. I respectfully dissent.

TROTT, Circuit Judge, with whom Circuit Judges

O’Scannlain and Kleinfeld join, dissenting:

In taking this case en banc, we ordered that our deceased

colleague Judge Charles Wiggin’s panel opinion be vacated.

With all respect, I cannot agree with the majority’s new

opinion for our court, and because | am unable to improve on

Judge Wiggin’s analysis of the important senionty system

issue in this case, I republish here his exceilent analysis from

his extirpated work.

Moreover, I am troubled by the regrettable position in

which we leave employers, employees, and the lawyers who

advise them in connection with these important and possibly

costly decisions. To require them to deal with a seniority

system as “merely one factor” leaves them with no guidance,

37a

none at all. This default portends litigation in every case

where a seniority system blocking the accommodation is re-

spected, and even possibly in cases where it is not, brought

in that instance by aggrieved persons earlier in line for the

job.

What to do with seniority systems in this context is a pol-

icy question for Congress, one which we as judges have no

authority or ability to resolve. We are left with legislation by

litigation, and we become a nation not of laws, but of law-

yers. In any event, forced to decide, I go with Judge Wig-

gins, and I express posthumously my thanks for his usual

clear vision and remarkable service to our court. Here is

how he saw it.

The ADA's ambiguous legislative history is of little help

in determining whether seniority policies should be treated

the same under the ADA and the Rehabilitation Act. On one

hand, there is evidence that Congress considered seniority

nghts to be merely one factor in reasonable accommodation

analysis under the ADA, rather than a dispositive factor. See

__S. Rep. No. 101-116, at 32 (1989) (“The collective bargain-

ing agreement could be relevant, however, in determining

whether a given accommodation is reasonable. For example,

if a collective bargaining agreement reserves certain jobs for

employees with a given amount of seniority, it may be con-

sidered as a factor in determining whether it is a reasonable

accommodation to assign an employee with a disability

without seniority to that job.”) H.R. Rep. No. 101-485, pt. 2,

at 63 (1990) (same language), reprinted in 1990

U.S.C.C.A.N. 303, 345. On the other hand, the House and

Senate Reports also state that reasonable accommodation

does not require “bumping” a more senior employee to cre-

~atea vacancy (although if the employer chose to do so, such

bumping would constitute reasonable accommodation). See

S. Rep. No. 101-116, at 32 (1989); H.R. Rep. No. 101-485,

pt. 2, at 63 (1990), reprinted in 1990 U.S.C.C._A.N. 303, 345.

38a

In the face of this ambiguity, I am persuaded by well-

reasoned opinions from other circuits that have concluded

that the ADA does not require an employer to give disabled

employees preference over nondisabled employees in hiring

and reassignment decisions. But this is precisely what Bar-

nett requests. U.S. Air’s seniority system is a decades-old

system that controls the duty assignments, shifts, transfers,

holidays, etc. of U.S. Air’s approximately fourteen thousand

customer service agents. Barnett does not claim that U.S.

Air’s policy is illegitimate and an excuse for unlawful dis-

crimination. But Barnett does claim that U.S. Air should

have left him in the mailroom position, thus excepting him

from its seniority policy, because of his disability. Although

many ADA cases have held that reasonable accommodation

does not require exempting a disabled employee from a col-

lectively bargained seniority system, see, e.g., Foreman v.

Babcock & Wiicox, Co., 117 F.3d 800, 810 (Sth Cir. 1997);

Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912-13 (7th

Cir. 196); Eckles v. Consolidated Rail Corp., 94 F.3d 1041,

1051 (7th Cir. 1996) (adopting a “per se” rule that reasonable

accommodation does not require “sacrificing the collectively

bargained, bona fide seniority rights of other employees”);

Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th

Cir. 1995), Barnett argues that his case is different because

U.S. Air’s seniority policy is not the result of a collective

bargaining agreement. I reject this argument and agree with

a Fifth Circuit panel that, in dicta, founc Barnett’s claimed

distinction to be irrelevant. In Foreman v. Babcock Wilcox

Co., 117 F.3d 800 (5th Cir. 1997); the Fifth Circuit rejected a

disabled employee’s claim that the ADA required his em-

ployer to reassign him to a new position evening the face of

a collectively bargained seniority provision that would pro-

hibit the requested transfers. The Court rejected the em-

ployee’s argument, making clear that its decision was not

based on the special status of collective bargaining agree-

ments.

39a

[E]ven if there were no CBA in place, B & W would

not be obligated to accommodate Foreman by reas-

signing him to a new position. “{W]Je do not read

the ADA as requiring affirmative action in favor of

individuals with disabilities, in the sense of requiring

disabled persons be given priority in hiring or reas-

signment over those who are not disabled. It prohib-

its employment discrimination against qualified in-

dividuals with disabilities, no more and no less.

Foreman, 117 F.3d at 810 (quoting Daugh v. City of El

Paso, 56 F.3d 695 (Sth Cir. 1995). = sind

I agree with the Daugherty court and the other circuits

that have interpreted the ADA as requiring no more than

equality among disabled and nondisabled employees in hiring

and reassignment decisions. This principle was well articu-

lated by a recent Seventh Circuit panel:

While Congress enacted the ADA to establish a

“level playing field” for our nation’s disabled work-

ers, it did not do so in the name of discriminating

against persons free from disability. Restated, the

ADA does not mandate a policy of “affirmative ac-

tion in favor of individuals with disabilities, in the

sense of requiring that disabled persons be given

priority in hiring or reassignment over those who are

not disabled.”

Malabarba v. Chicago Tribune Co., 149 F.3d 690, 700 (7th

Cir. 1998) (quoting Daugherty, 56 F.3d at 700); see also Dal-

ton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 679 (7th

Cir. 1998) (“[W]e have been unable to find a single ADA or

Rehabilitation Act case in which an employer has been re-

quired to reassign a disabled employee to a position when

such a transfer would violate a legitimate, nondiscriminatory

policy of the employer, and for good reason. The contrary

rule would convert a nondiscrimination statute into a manda-

tory preference statute, a result which would be both incon-

40a

sistent with the nondiscriminatory aims of the ADA and an

unreasonable imposition on the employers and coworkers of

disabled employees.”) (internal citations omitted); Wernick v.

Federal Reserve Bank of New York, 91 F.3d 379, 384-85 (2d

Cir. 1996) (“Congress intended simply that disabled persons

have the same opportunities available to them as are available

to nondisabled persons.”); Duckett v. Dunlop Tire Corp., 120

F.3d 1222, 1225 (11th Cir. 1997) (“We are aware of no case

under either the ADA or the Rehabilitation Act where an em-

ployer has been required to transfer an employee to another

position where the employer (independent of concerns about

disability) has a business policy against the pertinent kind of

transfer.”) But see Aka v. Washington Hospital Center, 156

F.3d 1284, 1305 (D.C. Cir. 1998) (en banc) (noting that “[ajn

employer is not required to reassign a disabled employee in

circumstances ‘when such transfer would violate a legitimate,

nondiscriminatory policy of the employer,’ “but also arguing

against the dissent’s claim that the ADA “mandat[es] nothing

more than that the employer allow the disabled employee to

submit his application along with all of the other candi-

dates.”’).

Because Barnett’s proposed accommodation would vio-

late U.S. Air’s legitimate seniority policy, I find that the pro-

posed accommodation is unreasonable under the ADA.

4la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 96-16669

D.C. No. CV-94-03874-DLJ

ROBERT BARNETT,

Plaintiff-Appellant,

U.S. AIR, INC.,

Defendant-Appellee,

ORDERS AND AMENDED OPINION

AND AMENDED DISSENT

Appeal from the United States District Court for the North-

ern District of California, D. Lowell Jensen, District Judge,

Presiding.

Filed October 6, 1998

Amended October 28, 1999

Before: Betty B. Fletcher, Charles Wiggins, and Pamela

Ann Rymer, Circuit Judges.

Opinion by Judge Wiggins; Dissent by Judge B. Fletcher

ORDER

The opinion filed on October 6, 1998, published at 157

F.3d 744 (9th Cir. 1998), is amended as follows. The portion

of the opinion (1) beginning with the first complete para-

graph in the nght-hand column of 157 F.3d at 750, which

starts with the words “Notwithstanding the Rehabilitation

42a

Act cases,” and (2) continuing to the end of Section (2)(b){i)

of the opinion, which ends near the bottom of the left-hand

column of 157 F.3d at 751 with the words “within its senior-

ity system as an accommodation of his disability,” shall be

deleted and replaced with the text below.

The ADA’s ambiguous legislative history is of little help

in determining whether seniority policies should be treated

the same under the ADA and the Rehabilitation Act. On one

hand, there is evidence that Congress considered seniority

rights to be merely one factor in reasonable accommodation

analysis under the ADA, rather than a dispositive factor. See

S. Rez. No. 101-116, at 32 (1989) (“The collective bargain-

ing agreement could be relevant, however, in determining

whether a given accommodation is reasonable. For example,

if a collective bargaining agreement reserves certain jobs for

employees with a given amount of seniority, it may be con-

sidered as a factor in determining whether it is a reasonable

accommodation to assign an employee with a disability

without seniority to that job.”); H.R. Rep. No. 101-485, pt. 2,

at 63 (1990) (same language), reprinted in 1990

U.S.C.C.A.N. 303, 345. On the other hand, the House and

Senate Reports also state that reasonable accommodation

does not require “bumping” a more senior employee to cre-

ate a vacancy (although if the employer chose to do so, such

bumping would constitute reasonable accommodation). See

S. Rep. No. 101-116, at 32 (1989); H.R. Rep. No. 101-485,

pt. 2, at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345.

In the face of this ambiguity, we are persuaded by well-

reasoned opinions from other circuits that have concluded

that the ADA does not require an employer to give disabled

employees preference over nondisabled employees in hiring

and reassignment decisions. But this is precisely what Bar-

nett requests. U.S. Air’s seniority system is a decades-old

system which controls the duty assignments, shifts, transfers,

holidays, etc. of U.S. Air’s approximately fourteen thousand

43a

customer service agents. Barnett does not claim that U.S.

Air’s policy is illegitimate and an excuse for unlawful dis-

crimination. But Barnett does claim that U.S. Air should

have left him in the mailroom position, thus excepting him

from its seniority policy, because of his disability. Although

many ADA cases have held that reasonable accommodation

does not require exempting a disabled employee from a col-

lectively bargained seniority system, see, e.g., Foreman v.

Babcock & Wilcox Co., 117 F.3d 800, 810 (Sth Cir. 1997);

Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912-13 (7th

Cir. 1996); Eckles v. Consolidated Rail Corp., 94 F.3d 1041,

1051 (7th Cir. 1996) (adopting a “per se” rule that reasonable

accommodation does not require “sacrificing the collectively

bargained, bona fide seniority rights of other employees”);

Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th

Cir. 1995), Barnett argues that his case is different because

U.S. Air’s seniority policy is not the result of a collective

bargaining agreement. We reject this argument and agree

with a Fifth Circuit panel that, in dicta, found Barnett’s

claimed distinction to be irrelevant. In Foreman v. Babcock

Wilcox Co., 117 F.3d 800 (Sth Cir. 1997), the Fifth Circuit

rejected a disabled employee’s claim that the ADA required

his employer to reassign him to a new position even in the

face of a collectively bargained seniority provision that

would prohibit the requested transfers. The Court rejected

the employee’s argument, making clear that its decision was

not based on the special status of collective bargaining

agreements.

[E]ven if there were no CBA in place, B & W

would not be obligated to accommodate Foreman

by reassigning him to a new position. “[W]e do not

read the ADA as requiring affirmative action in fa-

vor of individuals with disabilities, in the sense of

requiring disabled persons be given priority in hir-

ing or reassignment over those who are not dis-

abled. It prohibits employment discrimination

44a

against qualified individuals with disabilities, no

more and no less.”

Foreman, 117 F.3 d at 810 (quoting Daugherty v. City of El

Paso, 56 F.3d 695 (Sth Cir. 1995)).

We agree with the Daugherty court and the other circuits

that have interpreted the ADA as requiring no more than

equality among disabled and nondisabled employees in hir-

ing and reassignment decisions. This principle was well ar-

ticulated by a recent Seventh Circuit panel:

While Congress enacted the ADA to establish a

“level playing field” for our nation’s disabled work-

ers, it did not do so in the name of discriminating

against persons free from disability. Restated, the

ADA does not mandate a policy of “affirmative ac-

tion in favor of individuals with disabilities, in the

sense of requiring that disabled persons be given pri-

ority in hiring or reassignment over those who are

not disabled.”

Malabarba v. Chicago Tribune Co., 149 F.3d 690, 700

(7th Cir. 1998) (quoting Daugherty, 56 F.3d at 700); see also

Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 679

(7th Cir. 1998) (“[W]e have been unable to find a single

ADA or Rehabilitation Act case in which an employer has

been required to reassign a disabled employee to a position

when such a transfer would violate a legitimate, nondis-

criminatory policy of the employer, and for good reason.

The contrary rule would convert a nondiscrimination statute

into a mandatory preference statute, a result which would be

both inconsistent with the nondiscriminatory aims of the

ADA and an unreasonable imposition on the employers and

coworkers of disabled employees.”’) (internal citations omit-

ted); Wernick v. Federal Reserve Bank of New York, 91 F.3d

379, 384-85 (2d Cir. 1996) (“Congress intended simply that

disabled persons have the same opportunities available to

them as are available to nondisabled persons.”); Duckett v.

45a

Dunlop Tire Corp., 120 F.3d 1222, 1225 (11th Cir. 1997)

(“We are aware of no case under either the ADA or the Re-

habilitation Act where an employer has been required to

transfer an employee to another position where the employer

(independent of concerns about disability) has a business

policy against the pertinent kind of transfer.”). But see Aka

v. Washington Hospital Center, 156 F.3d 1284, 1305 (D.C.

Cir. 1998) (en banc) (noting that “[aJn employer is not re-

quired to reassign a disabled employee in circumstances

“when such transfer would violate a legitimate, nondiscrimi-

natory policy of the employer,”” but also arguing against the

dissent’s claim that the ADA “mandat[es} nothing more than

that the employer allow the disabled employee to submit his

application along with all of the other candidates.”’).

Because Barnett’s proposed accommodation would vio-

late U.S. Air’s legitimate seniority policy, we find that the

proposed accommodation is unreasonable under the ADA.

ORDER

The Dissent filed on October 6, 1998, published at 157

F.3d 754 (9th Cir. 1998) is amended as follows:

In the first paragraph of the dissent, on page 754, the sen-

tence beginning with the words “Second, while stating” shall

be deleted and replaced with the text below:

“Second, the majority establishes a rule reject-

ing accommodations under the ADA in the context

of all seniority systems, whether determined by col-

lective bargaining or unilaterally imposed by em-

ployers.”

The text below shall be inserted as part of the first full

paragraph on page 756, after the last sentence of that para-

graph which ends with the words “an employer’s failure to

participate or investigate.”

46a

Fjellestad v. Pizza Hut of America, Inc., No. 98-

2071, 1999 WL 642958 (8th Cir. Aug. 25, 1999)

(Finding that the failure of an employer to engage

in an interactive process to determine whether rea-

sonable accommodations are possible is prima facie

evidence that the employer may be acting in bad

faith.)

47a

ority in reassignment. Majority at 13036-37. This

holding is in direct conflict with several circuits and

the EEOC’s own Enforcement Guidance. The

EEOC’s guidelines explicitly state that reassign-

ment is a reasonable accommodation for which dis-

abled employees should have priority, even when

transfers are normally not allowed:

The ADA requires employers to provide rea-

sonable accommodations to individuals with

disabilities, including reassignment, even

though they are not available to others.

Therefore, an employer who does not nor-

Delete section a., entitled “U.S. Air’s Seniority System”,

which begins with the last paragraph on page 756 and ex-

tends through the paragraph on page 757 ending with the

words “without undue disruption to its seniority system.”

Repiace section a. with the following text:

a. U.S. AIR’S Seniority System

The majority holds that U.S. Air’s seniority sys-

tem precludes leaving Barnett in the mailroom as a

reasonable accommodation for his disability. The

majority acknowledges that the legislative history

does not clearly support its position and admits that

no other circuit has held that ADA accommodation

is precluded by a seniority system which is not the

result of a collective bargaining agreement. The

majority relies for its holding on dicta in a Fifth

Circuit opinion that is based on different facts.

The majority cites a number of opinions from

other circuits which have found that the ADA does

not require exempting a disabled employee from a

seniority system established by a collective bargain-

ing agreement. It imposes the same rule in this case

despite the fact that the U.S. Air’s seniority system

was unilaterally imposed by the employer and was

not the product of a collective bargaining agree-

ment.

The majority holds that disabled workers requir-

ing reasonable accommodation should have no pri-

mally transfer employees would still have to

reassign an employee with a disability,

unless it could show that the reassignment

caused an undue hardship. And, if an em-

ployer has a policy prohibiting transfers, it

would have to modify that policy in order to

reassign an employee with a disability,

unless it could show undue hardship.

EEOC Enforcement Guidance: Reasonable Ac-

commodations and Undue Hardship under the

Americans with Disabilities Act at 19 (1999).

In Aka v. Washington Hospital Center, 156 F.3d

1284 (D.C. Cir. 1998)(en banc), the D.C. Circuit re-

jected the view that the majority takes in this case,

i.e., that the ADA requires “no more than equality

among disabled and nondisabled employees” in re-

assignment decisions. Majority at 13037. The Aka

majority persuasively answered an argument identi-

cal to that made by the majority here: “The dis-

senters misunderstand both the text and legislative

history of the statute, and deviate from the

construction of the statute by other circuits... .

Indeed the ADA’s reference to reassignment would

be redundant if permission to apply were all it

48a

dundant if permission to apply were all it meant.”

Id. at 1303.

The Tenth Circuit, sitting en banc, also rejected

the argument that the majority advances here. The

Tenth Circuit concluded that “the reassignment ob-

ligation must mean something more than merely al-

lowing a disabled person to compete equally with

the rest of the world for a vacant position. Reas-

signment is, in fact, one of the forms of reasonable

accommodation specifically mentioned by the stat-

ute to be utilized if necessary and reasonable to

keep an existing disabled employee employed by

the company.” Smith v. Midland Brake, Inc., 180

F.3d 1154, 1164 (10th Cir. 1999) (en banc).

Summary judgment was inappropriate in this

case. Barnett met his prima facie burden of demon-

strating a reasonable accommodation by allowing

him to remain in the mailroom and eliminating only

one position from the seniority bid process. The

burden should now shift to U.S. Air to prove that

the accommodation is unreasonable or an undue

hardship. 42 U.S.C. § 12112(5). In its rebuttal,

U.S. Air offered only the statement of its Vice

President for Human resources and a copy of its

seniority policy. U.S. Air claims that the effect of

all potential ADA claimants would significantly

disrupt the seniority system. Yet the record pro-

vides no information concerning the number of

ADA claimants at U.S. Air, their seniority, or their

need to be accommodated by exceptions to the sen-

iority rules. Bald speculation on the part of the dis-

trict court and an employer is insufficient to support

summary judgment on a finding of “undue hard-

ship.” Nothing in the ADA supports finding that

Barnett has the burden of proving that his proffered

49a

accommodation would satisfy all possible future

claimants. Indeed, such proof would be outside the

knowledge and control of almost all employees

(and many employers). '

The majority errs in creating a blanket rule that

directly conflicts with the EEOC Enforcement

Guidance and that severely undermines the reason-

able accommodation provisions of the ADA. US.

Aur has failed to demonstrate that accommodating

Barnett would cause undue disruption to its senior-

ity system and we should not assume so. Instead,

we should find that a triable issue of fact remains to

be resolved by the district court.

OPINION

WIGGINS, Circuit Judge:

Robert Barnett appeals the d

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