Opposition Brief — Boeing Co. v. Aldrich

preme Court, U.S.

£4,

FEB 16 1999

DOCKET NO. 98-859

| CLERK

i

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1998

BOEING COMPANY

Petitioner,

v.

KENNETH W. ALDRICH

Respondent,

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Tenth Circuit.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

*Beth Regier Foerster

James E. Benfer, Il

David O. Alegria

McCULLOUGH, WAREHEIM & LABUNKER, P.A.

1507 S.W. Topeka Boulevard

P.O. Box 1453

Topeka, Kansas 66612

(913) 233-2323

Attorneys for Respondent

*Counsel of Record

wie a tthe a ae tate cat RE OA,

re a

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QUESTIONS PRESENTED FOR REVIEW

3 When an injured worker has applied for and

is receiving monthly employer-provided disability benefits

eventually totaling $20,000 and available only to permanently

and totally disabled workers unable to engage in any gainful

employment, and when he has also applied for and is

receiving weekly workers compensation payments, eventually

totaling nearly $27,000 and awarded for "temporary total

disability", he is judicially estopped from contending in a

lawsuit, brought against his employer pursuant to the

Americans with Disabilities Act, that he could have

performed the essential functions of his job with reasonable

accommodation, and was therefore a "qualified individual

with a disability", with the meaning of the Americans with

Disabilities Act?

2. When an injured worker has settled his future

workers compensation claim for "permanent partial general

disability" in exchange for a lump sum $30,000 payment

from his employer, and when he has obtained that settlement

only as a result of his explicit, sworn testimony that he could

not perform the essential functions of his job with or without

accommodation, is he judicially estopped from contending in

a lawsuit, brought against his employer pursuant to the

Americans with Disabilities Act, that notwithstanding his

sworn testimony to the contrary he could indeed have

performed the essential functions of his job with reasonable

accommodation, and is therefore a "qualified individual with

a disability" within the meaning of the Americans with

Disabilities Act?

PARTIES AND PARENT

OR SUBSIDIARY COMPANIES

All parties to the case are shown in the caption.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......

PARTIES AND PARENT

OR SUBSIDIARY COMPANIES ....

Bae Be ME ETTE DD in o's o 0-0 obs © ered ee

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI ...

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es

TABLE OF AUTHORITIES

Cases: Page

Aldrich v. Boeing Co., 146 F.3d 1265 (10th Cir. 1998) 1

Cleveland v. Policy Management Systems Corp., 120 F. 3d

513 (Sth Cir. 1997), cert. granted, 119 S. Ct. 39 (1998) 6,

12, 13, 18

Fortner Enterprises, Inc. v. U.S. Steel Corp., 89 S. Ct. 1252,

394 U.S. 495, 22 L. Ed. 2d 495, appeal after remand 452, F.

2d 1095, certiorari denied 982 S. Ct. 1773, 406 U.S. 919 32

Ln Oe SEP CRP, cv ie bees es umseres 9

Granfinanciera F. A. v. Nordberg, 109 S. Ct. 2782, 492 U.S.

33, FOO te Ee Oe OO AE 464 E so he ee 17

Rascon v. US West Communications, Inc., & Equal

Employment Opportunity Commission,

Pee CS 45 a eee c ete bee eee oe

School Board v. Arline, 480 U.S. 273 (1987) ....... 15

Smith v. Midland Brake, Inc., 138 F. 3d 1304 (1998) . 13

Talavara v. School Board of Palm Beach County, 1\th Cir.

129 F. 36 TSG) ni 28 hs Cee een 10

White v. York Int'l Corp., 46 F. 3d, 357, 360-61 (10th Cir.

IDS? bi vader eae e pin gee been 15, 16

Whitley v. Albers, 106 S. Ct. 1078, 475 U.S. 312, 89 L. Ed.

2d 251, on remand 788 F. 2d 650 (1986) ........... 17

iv

Statutes:

29 C.F.R. Pt. 1630, App. § 1630.2(0) ........... + 15

29 CPR, © GSO A OED aon'e's oh ewe ies 15

29 U.SSL ER TOR CO 5 oh be Rena eee 15

OF TIC. S Ferree 6a eee sew eeeee 4 15

ME AS OE RREEMT ee a ae oak OA eae 14

M2 ULES. Se USk hres STUD. ak Scere ewes 15

SPI 6120s ON ee ike case ees 13

Se Oe eee ie ee Ok as EEE oes 12

45 F. 3d 357, 361-G2 (10ie Car., 199D) cic ccc ene 16

OS 2, PO ee Gat. ck eee es She hae CR 15

PO Be ae Eo Sa OS be ve oe eee ees 8

Id. at 289 n. 19 (citations omitted) .............. 16

Section 101(8) of the Americans with Disabilities Act,

42 U.SL..S PEARS is ek eee ts Pa ane diese ]

Section 102(a) of the Americans with Disabilities Act,

42 USS. BASE es re PT ES. ]

Vv

l

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondent, Kenneth W. Aldrich, respectfully

responds to the Petition for Writ of Certiorari to review the

judgment of the United States Court of Appeals for the Tenth

Circuit in this case.

OPINIONS BELOW

The court of appeals opinion is reported as Aldrich v.

Boeing Co., 146 F.3d 1265 (10th Cir. 1998). The court of

appeals order denying rehearing (Pet. App. 19) and the

district court opinion (Pet. App. 20 to App. 38) are

unreported.

JURISDICTION

Respondent agrees this court has timely jurisdiction

on the Petition for Writ of Certiorari.

STATUTES INVOLVED

Section 101(8) of the Americans with Disabilities Act,

42 U.S.C. § 12111(8), provides:

Qualified individual with a disability. The

term “qualified individual with a disability"

means an individual who, with or without

reasonable accommodation, can perform the

essential functions of the employment position

that such individual holds or desires. . . ."

Section 102(a) of the Americans with Disabilities Act,

42 U.S.C. § 12111(a), provides:

2

General Rule. No covered entity shall

discriminate against a qualified individual

with a disability because of the disability of

such individual in regard to job application

procedures, the hiring, advancement, or

discharge of employees, employee

compensation, job training, and other terms,

conditions, and privileges of employment.

STATEMENT OF THE CASE

Respondent, Kenneth Aldrich, worked under a

Collective Bargaining Agreement (CBA) from September 29, |

1988 until layoff on June 8, 1993. During that time, he held | |

different positions including a Assembler, Installer Structures |

B (305-04), and Assembler, Sub-Assembly (B200-04) and |

was assigned to work assisting the Millwrights within the

Facilities Department. (10th Cir. Aplt. App. at 99).

Mr. Aldrich reported pain in his right hand, numbness, and

decreased grip when using small hand tools on August 4,

1992 to Boeing’s Central Medical Department and was

referred to an orthopedic surgeon. (Memorandum Order,

November 21, 1996, p. 2). Mr. Aldrich was diagnosed with

cumulative trauma syndrome manifesting as flexor

tenosynovitis and was placed on an involuntary medical leave

of absence by Boeing. (Memorandum Order, November 21,

1996, p. 3).

Despite his seniority under the CBA, Mr. Aldrich was

not considered for transfer to open and available positions for

which he was qualified. (10th Cir. Aplt. App. at 143, 658,

"Letter of Understanding No. 20" to the 1992 CBA).

Pursuant to the CBA in effect between Boeing and the

International Association of Machinists, Mr. Aldrich, as an

employee who had previously suffered a work related injury,

3

possessed contract rights superior to those of an employee

possessing Category A rights to an otherwise available

“position, provided the injured employee had more company

seniority than the employee with the Category A rights.

(10th Cir. Aplt. App. at 145, 608-623). Mr. Aldrich claimed

throughout his employment and appeal that he had seniority

rights to positions that would have survived layoffs. Boeing

failed to consider him for other positions.

Petitioner Boeing’s internal documents clearly show

positions were filled during the applicable time frame either

by outside hire, recall, or internal transfer, thus documenting

the open and availability of positions for which Respondent

Aldrich was qualified but was not considered. As a result,

the Tenth Circuit Court of Appeals has remanded the case for

determination of the seniority basis for positions that Aldrich

should have been considered for but was not. (10th Cir.

Decision).

Aldrich also claimed in addition to not being

considered for open and available positions for which he had

seniority rights, that Boeing never provided him with any

reasonable ergonomic accommodations to enable him to

perform his 305-04 job after injury. (Aplt. App. at 111-115).

The Union took the position that there was no conflict which

existed between the reasonable accommodation provisions of

the ADA and the CBA of 1992. (Aplt. App. at 144).

Because of Mr. Aldrich’s receipt of a workers’

compensation settlement which included payment under

Kansas Workers Compensation laws for his claimed inability

to return to his former position at Boeing, the District Court

ruled that Mr. Aldrich was not a qualified individual with a

disability and therefore sustained Boeing’s Motion for

Summary Judgment. (Memorandum Order, November 21,

i |

4

1996). Thereafter, Mr. Aldrich appealed to the Tenth Circuit

Court of Appeals. The Tenth Circuit Court reversed the

District Court and found that Mr. Aldrich was qualified to

perform the essential functions of jobs he had identified. |

(10th Cir. Decision, July 1, 1998, 146 F. 3d 1265). |

Respondent disagrees with Petitioner’s statement of

the case in regard to Aldrich’s workers’ compensation rights

and representations made by Respondent Aldrich.

Respondent Aidrich testified at the settlement hearing for his

workers’ compensation case that he understood that Boeing

was of the opinion that he could not perform the 305-04 job

he had previously held, Aldrich had been on an involuntary

leave of absence since 1992 and in 1995, he agreed to settle

his claim. When questioned about his understanding of the

settlement and why it was being made, Respondent Aldrich

answered that he understood the basis of the settlement.

eiauieiinnettt een, atteaaateeia

It was not Respondent Aldrich’s intention to agree

that he could not perform the essential functions of the 305-

04 job he had previously held. To the contrary, Mr. Aldrich

believes that had he been provided reasonable and proper

accommodations as detailed by his certified ergonomics

expert in this case, Mr. Ross Ailsleger, there did exist jobs

within the 305-04 code which he could have performed and

for which he was not considered for by Boeing. (10th Cir. |

Aplt. App. at 100).

Respondent Aldrich’s application for disability

insurance benefits was made at the suggestion of the Boeing

Personnel Department. Mr. Aldrich did not understand at the

time he made the application that by doing so, he would be

doing something which Boeing might later claim would

make him legally unable to pursue legitimate claims for

disability discrimination or retaliation. The application said

5

nothing about Mr. Aldrich having to be "permanently and

totally disabled” in order to collect benefits, nor did he have

a copy of the Disability Plan Booklet. (10th Cir. Apit. App.

at 100). The benefits in question were not approved by the

insurance company until March, 1994 (Memorandum Order,

November 21, 1996 p. 9), over one year after Aldrich

submitted his application at Boeing’s suggestion.

Boeing alleged, and District Court held that Aldrich’s

medical condition was temporary , hence no ADA protection,

because no permanent disability rating had been assigned

Mr. Aldrich by a physician. Reversing the District Court, the

Tenth Circuit held:

"May an impairment be substantially limiting

for the purposes of the Americans with

Disabilities Act (citation omitted) before the

date a permanent disability rating has been

issued by the treating physician? Answering

this question in the affirmative, we reverse the

judgment of the District Court and remand for

further proceedings." (10th Cir. Decision).

Boeing alleged and the District Court held that

Aldrich was barred from an Americans with Disabilities Act

claim applying the doctrine of judicial estoppel based on his

filing for and receiving benefits under Boeing’s private

disability plan and the Kansas Workers Compensation Act.

In reversing the District Court, the Tenth Circuit held that

the benefits he had claimed were awarded without regard to

reasonable accommodation. The Tenth Circuit did not apply

the doctrine of judicial estoppel, and found that Aldrich’s

testimony "may constitute evidence relevant to a

determination of whether the plaintiff is a ‘qualified

individual with a disability’" but is not dispositive.

6

REASONS FOR DENYING THE PETITION

I. SUMMARY OF ARGUMENT

The granting of Certiorari in this case to review the

Tenth Circuit’s decision on reversing a Motion for Summary

Judgment will not assist the Supreme Court in determining

the issues raised by the grant of Certiorari in Cleveland v.

Policy Management Systems Corp., 120 F. 3d 513 (Sth Cir.

1997), cert. granted, 119 S. Ct. 39 (1998).

Additionally, the difference between the circuits in the

use of the doctrine of judicial estoppel is not a conflict. All

circuits allow evidence of an injured worker’s other disability

claims. The courts look at disability insurance application

forms and receipt of other disability based benefits to

evaluate the issue of whether an individual is a "qualified

individual with a disability" under the Americans with

Disabilities Act.

Finally as the Aldrich case is affirmable on other

grounds, therefore the granting of Certiorari or stay of the

review of this case will not be affected by the Supreme

Court’s decision in Cleveland.

A. Respondent Aldrich Is Entitled to Receive

Employer Provided Disability Benefits and Workers

~ Compensation Benefits and Prove He Is a Qualified

Individual with a Disability as Defined by the

Americans with Disabilities Act Without Being Barred

by the Doctrine of Judicial Estoppel under the Facts of

His Case.

In its opinion, the Tenth Circuit Court of Appeals

specifically reviewed the benefits Mr. Aldrich recovered from

7

his private disability plan and the Kansas Workers

Compensation Statute. The Tenth Circuit found as follows:

"It follows that Aldrich is not estopped from

pursuing his ADA claim merely because he

applied for and received benefits under

Boeing’s private disability plan and the

Kansas workers compensation statute -- those

benefits are also awarded without re to

reasonable cco tion." (Emphasis

added). (10th Cir. Decision).

The factual basis for the Tenth Circuit’s decision

included the fact that Respondent Aldrich’s application for

disability insurance benefits was made at the suggestion of

the Boeing Personne! Department. Mr. Aldrich did not

understand at the time he made the application that by doing

so, he would be doing something which Boeing might later

claim would make him legally unable to pursue legitimate

claims for disability discrimination or retaliation. The

application said nothing about Mr. Aldrich having to be

"permanently and totally disabled" in order to collect

benefits, nor did he have a copy of the Disability Plan

Booklet. (10th Cir. Aplt. App. at 100). The benefits in

question were not approved by the insurance company until

March, 1994 (Memorandum Order, November 21, 1996 p.

9), over one year after Aldrich submitted his application at

Boeing’s suggestion.

Respondent Aldrich testified at the settlement hearing

for his workers’ compensation case that he understood that

Boeing was of the opinion that he could not perform the

305-04 job he had previously held, and Aldrich had been on

an involuntary leave of absence since 1992, he agreed to

settle his claim. When questioned about his understanding

8

of the settlement and why it was being made, Respondent

Aldrich answered that he understood the basis of the

settlement.

Petitioner correctly argues that Kansas Workers

Compensation Law encourages employers to accommodate

injured workers by returning them to work. Respondent

agrees with this statement of a policy of the workers

compensation act, however, Petitioner has not complied with

the policy by placing Aldrich on an involuntary leave of

absence. Their argument that they could have potentially

negotiated a lesser payment of workers compensation benefits

if Aldrich had testified differently in his settlement hearing

is moot because at the time of the settlement hearing Aldrich

testified: "I was released in °92 to go back to work and

Boeing didn’t allow me to go back to work." (Settlement

Hearing, p. 13, Aplt. App.). All parties were fully informed

that Aldrich had a pending ADA claim and Boeing knew

they could lessen their liability for private disability benefits,

ADA liability, and workers compensation liability by

providing reasonable accommodation to Aldrich.

It is important to recognize that this case is being

considered at the point in time a Motion for Summary

Judgment was filed by Petitioner, ruled upon by the District

Court, and remanded by the Tenth Circuit Court of Appeals.

The standard for a summary judgment motion, that there be

"no genuine issue as to any material fact", Fed. R. Civ. P.

56(c), is not met when the Petitioner and Respondent are in

dispute over whether the worker is otherwise qualified for

the job, a central question of fact in the proceedings. In

addition, factual inferences have to be resolved in favor of

the nonmoving party, in this case, Aldrich.

9

Petitioner is asking the Supreme Court to review the

summary judgment ruling that on the facts presented judicial

estoppel should have been applied to preclude the case from

going to trial on plaintiff's/(Respondent’s) claims. On

review of summary judgment, it is not the function of

Supreme Court to speculate as to ultimate findings of fact.

Fortner Enterprises, Inc. v. U.S. Steel Corp., 89 S. Ct.1252,

394 U.S. 495, 22 L. Ed. 2d 495, appeal after remand 452, F.

2d 1095, Certiorari denied 982 S. Ct. 1773, 406 U.S. 919 32

L. Ed. 2d 119 (1969).

The Tenth Circuit correctly held that the benefits

Aldrich had claimed were awarded without regard to

reasonable accommodation. The Tenth Circuit did not apply

the doctrine of judicial estoppel, and found that Aldrich’s

testimony "may constitute evidence relevant to a

determination of whether the plaintiff is a *qualified

individual with a disability" but is not dispositive. The

appropriate decision was reached in Aldrich, and Certiorari

should not be granted on the questions raised.

B. There is Not a Conflict among the Appellate Courts

in Whether or Not Judicial Estoppel Is an Appropriate

Rule of Law under Certain Facts.

The majority of circuits agree that the application of

the doctrine of judicial estoppel is to be done on a case by

case basis. The Tenth Circuit has declined to utilize the

doctrine of judicial estoppel as an absolute bar to a plaintiff's

ADA claim where there has been an application for Social

Security Disability or other employer benefits. When the

doctrine is utilized, it always requires the court to undergo a

fact intensive analysis. When the doctrine is applied in the

ADA setting, the courts carefully review the facts to

reconcile the intent of Congress in enacting the ADA with

10

legal principles and rights of all parties in the judicial

estoppel doctrine.

As in the Tenth Circuit ruling, inconsistent statements

are handled under the Federal Rules of Evidence as they

"may constitute evidence relevant to a determination of

whether the plaintiff is a ‘qualified individual with a

disability’". Therefore, the integrity of the judicial system is

protected by admissibility of inconsistent statements or

evidence of impeachment as well as admissibility of the

definitions of the policy benefit entitlements and

circumstances of the application.

As recently noted in the case of Talavara v. School

Board of Palm Beach County, \\th Cir. 129 F. 3d 1214

(1997):

"Consistent with the majority of courts

to have addressed the issue, the court adopted

a fact-specific approach to the issue of

whether an employee’s certification of total

disability on a Social Security Disability

benefits application precludes an employee ;

from proving the qualification element of an

ADA claim . . . The employee presented

evidence sufficient to raise an issue as to

whether she could have performed the

essential functions of her position with

reasonable accommodation."

The issue for determination in this particular case is

whether or not Respondent Aldrich has made a prima facie

case showing of material facts which would meet his burden

of proof to show the essential elements of his claim under

the ADA, including:

’

Lm

1]

Qualified individual with a disability. The

term "qualified individual with a disability”

means an individual who, with or without

reasonable accommodation, can perform the

essential functions of the employment position

that such individual holds or desires. . . ."

Section 101(8) of the Americans with

Disabilities Act, 42 U.S.C. § 12111(8).

General Rule. No covered entity shall

discriminate against a qualified individual

with a disability because of the disability of

such individual in regard to job application

procedures, the hiring, advancement, or

discharge of employees, employee

compensation, job training, and other terms,

conditions, and privileges of employment.

Section 102(a) of the Americans with

Disabilities Act, 42 U.S.C. § 12111(a).

According to the Tenth Circuit, the facts submitted by

Respondent Aldrich to Petitioner Boeing’s Motion for

Summary Judgment were sufficient as a matter of law, both

to the permanent nature of his condition and reasonable

accommodations that were not provided.

Respondent Aldrich believes Boeing has misstated the

Tenth Circuit’s ruling in Rascon v. US West

Communications, Inc., & Equal Employment Opportunity

Commission, 143 F. 3d, 1324 (10th Cir. 1998). Rascon joins

the majority of Circuits and holds statements made in

connection with an application for Social Security Disability

benefits cannot be an automatic bar to a disability

discrimination claim under the ADA. The Court held that

such statements may, however, constitute evidence relevant

12

to a determination of whether the Respondent is a "qualified

individual with a disability". Rascon held that there is

nothing inconsistent in Mr. Rascon applying for disability

benefits after having his reasonable accommodation denied.

As Boeing’s facts were presented to the District Court

and the Tenth Circuit on the issue of Mr. Aldrich’s receipt

of other benefits and the facts were considered in the Tenth

Circuit decision, the evidence before this court has already

been found to create an issue of material fact sufficient to

allow Mr. Aldrich’s claims to go forward to trial. Boeing’s

position on judicial estoppel would not allow a full

presentation of the facts.

C. The Aldrich Case Is Dissimilar to Cleveland v.

Policy Management Systems Corporation, a Case in

Which this Court Has Granted Certiorari and

Granting Certiorari in Aldrich Will Not Assist the

Court in Deciding the Writ in Cleveland.

Granting the Petition for Certiorari in this case will

not assist the court in determining the issues assessed by the

Certiorari that has been granted in Cleveland v. Policy

Management Systems Corp., 120 F. 3d 513 (Sth Cir. 1997),

cert. granted, 119 S. Ct. 39 (1998). There are highly

significant factual differences between the Cleveland case

and the case at bar. Specifically, in the Cleveland case, the

court granted limited Certiorari for two questions:

"1. Whether the application for, or

receipt of, disability insurance benefits under

the Social Security Act, 42 U.S.C. § 423 [42

USCS § 423], creates a _ rebuttable

presumption that the applicant or recipient is

judicially estopped from asserting that she is

aoe

13

a ’qualified individual with a disability’ under

the Americans With Disabilities Act of 1990

(ADA)", 42 U.S.C. § 12101 et seg. [42

USCS §§ 12101 ef seq.].

yi 5 If it does not create such a

presumption, what weight, if any, should be

given to the application for, or receipt of,

disability insurance benefits when a person

asserts she is a ‘qualified individual with a

disability’ under the ADA?"

The "mere application or receipt" issue regarding

Social Security Disability benefits is not present in this case.

Respondent Aldrich did not claim, make an application for,

or draw Social Security Disability benefits. Therefore, this

case is readily distinguishable from Cleveland. The precise

impact, if any, of prior Social Security Administration (SSA)

representation on a plaintiff's ADA claim is an open question

in the Tenth Circuit. Smith v. Midland Brake, Inc., 138 F.

3d 1304 (1998).

Therefore, the issues in Aldrich are not the same

factual or legal issues before the Court in Cleveland.

Accordingly, resolving these factually and legally dissimilar

cases would not assist the Court in helping to decide the

question that has been granted for review in Cleveland.

D. The Aldrich Decision Is Subject to Affirmance on .

Alternate Grounds Established by the Judgment of the

Tenth Circuit Court of Appeals and Therefore Grant of

Certiorari Would Not Change the Result in Aldrich.

14

The Tenth Circuit Court of Appeals’ decision in

Aldrich subject to affirmance on alternate grounds. The

Tenth Circuit Decision reviewed the case on the basis of:

"May an impairment be substantially limiting

for the purposes of the Americans with

Disabilities Act (citation omitted) before the

date a permanent disability rating has been

issued by the treating physician? Answering

this question in the affirmative, we reverse the

judgment of the District Court and remand for

further proceedings." (10th Cir. Decision).

The Tenth Circuit finding that the fact that a

permanent impairment rating had not been issued still entitles

the plaintiff to determination of his status as a disabled

individual under the ADA, is an alternate ground for

affirmance.

An additional ground for affirmance of the Tenth

Circuit decision includes the failure of Boeing to consider

Aldrich for open and available positions. The ADA prohibits

employers from discriminating against qualified individuals

with disabilities because of the disabilities in terms,

conditions, or privileges of employment. (42 U.S.C. §

12112(a)). A plaintiff must prove within the meaning of the

ADA:

1. That he is a disabled person

within the meaning of the ADA;

2. That he is qualified, with or

without reasonable accommodation, he is able

to perform the functions of the job that he

NE eee MET ee eT SOR |

15

was performing or the position that is desired;

and

3. That the employer fired the

individual because of the disability. White v.

York Int'l Corp., 46 F. 3d, 357, 360-61 (10th

Cir. 1995). (Emphasis added).

Specifically, the Equal Employment Opportunity

Commission (EEOC) has defined a _ reasonable

accommodation to include reassignment to a vacant position.

(42°-U.S8iC. -§ -12111(9)(B)); 29 C.F.R. §

1630.2(0)(2)(ii)(1997)). The guidelines state that,

"in general, reassignment should be

considered only when an accommodation

within the individual’s current position would

pose an undue hardship [to the employer]."

(29 C.F.R. Pt. 1630, App. § 1630.2(0)).

Undue hardship is defined as "significant difficulty or

expense in, or resulting from, the provision of the

accommodation". (/d. at Pt. 1630, App. § 1630.2(p)).

The legal application of reassignment to a vacant

position is not a new concept under preexisting disability

law. The Americans with Disabilities Act and the Federal

Rehabilitation Act are generally to be interpreted and applied

consistently with each other. (29 U.S.C. §§ 791(g), 794(d);

42 U.S.C. §§ 12117(b), 12201(a); White, supra. 45 F. 3d at

360 n. 5).

The U.S. Supreme Court in dicta held in School

Board v. Arline, 480 U.S. 273 (1987), a Federal

Rehabilitation Act case:

16

"Although [employers] are not required

to find another job for an employee who is

not qualified for the job he or she was doing,

they cannot deny an employee alternative

employment opportunities reasonably

available under the employer’s existing

policies." (/d. at 289 n. 19 (citations

omitted)).

In White, supra, the employee was unable to perform

his current job but did not establish a job that he could to.

The Court did not reject reassignment for that reason.

Instead, the Court rejected reassignment because the

employer established in White that there were no vacant

equivalent positions that the employee could have performed.

White, supra. (45 F. 3d 357, 361-62 (10th Cir., 1995)).

The Tenth Circuit’s decision in Aldrich is affirmable

on the grounds that plaintiff identified the reasonable

accommodation of transfer by seniority to open and available

positions that have been identified as reasonable

accommodations under the CBA. The Tenth Circuit

specifically found:

"Viewing the factual record in the light most

favorable to the plaintiff, we see a genuine

issue of material fact concerning whether

work modifications and/or ergonomic training

were reasonable accommodations that would

have permitted plaintiff to return to his

original job as an assembly worker. We also

find evidentiary support for plaintiff's

argument that there exists two other positions

to which he could have been reassigned as a

ET RO ET ae

17

reasonable accommodation.” (10th Cir.

Decision).

The certified professional ergonomics expert also

opined that Boeing could have accommodated Aldrich by

transferring him to one of several positions within his skill

and grade level. (10th Cir. Decision). The Tenth Circuit

correctly concluded that Respondent may have been eligible

for a Factor Service Attendant A or a Factory Clerk C

position as early as December, 1992, positions which were

not offered to Respondent and he was terminated on June 8,

1993. (10th Cir. Decision). Respondent’s identified

accommodation would have allowed Aldrich to remain

employed and survive layoffs as a result of his seniority.

(10th Cir. Decision). Petitioner, Boeing, did not provide

these reasonable accommodations to Respondent, Aldrich,

which resulted in his termination.

The affirmance on alternate grounds identified herein,

would neither expand nor contract the rights of either party

and is therefore appropriate. Granfinanciera F. A. Vv.

Nordberg, 109 S. Ct. 2782, 492 U.S. 33, 106 L. Ed. 2d 26

(1989). Any ground properly raised below may be urged as

basis for Supreme Court’s affirmance of Court of Appeals’

decision. Whitley v. Albers, 106 S. Ct. 1078, 475 U.S. 312,

89 L. Ed. 2d 251, on remand 788 F. 2d 650 (1986).

The Tenth Circuit correctly found that Aldrich was

entitled to consideration for open positions, positions that he

would have been eligible for as a result of his seniority

rights. This alternate ground has considerable impact to

Respondent Aldrich’s rights under the ADA, and is

affirmable on these grounds.

18

CONCLUSION

The Tenth Circuit decision at issue is consistent with

the majority of circuits that admit evidence of an employee’s

statements and circumstances in applying for employer

benefits. Based on appropriate evidence, employees may be

entitled to permanent total disability, workers’ compensation,

and enforce their rights for reasonable accommodation under

the Americans with Disabilities Act. In Aldrich, the

employer’s placement of the worker on an involuntary leave

of absence was found to be inconsistent with their obligation

to consider Aldrich for other open and available positions or

for ergonomic modification of his position.

The granting of the Petition for Certiorari is

unnecessary to resolve a conflict in the circuits as all circuits

allow evidence of statements made on applications for

employer benefits and for Social Security Disability. In

addition, the particular facts of Aldrich are so dissimilar to

Cleveland that granting Certiorari will not assist the court in

its review.

RESPECTFULLY SUBMITTED:

*Beth Regier Foerster

James E. Benfer, III

David O. Alegria

MCCULLOUGH, WAREHEIM & LABUNKER, P.A.

1507 Topeka Boulevard

P.O. Box 1453

Topeka, Kansas 66601-1453

(913) 233-2323

ATTORNEYS FOR RESPONDENT

*Counsel of Record