# Opposition Brief — Boeing Co. v. Aldrich

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1445%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1144

## Text

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

Oe Chenoa

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 ...

I a a Ute coe cee set

EE a ee

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1445%3A2. Public record. Not legal advice.