TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES.......................................................................... ii

STATEMENT REGARDING ORAL ARGUMENT................................... viii

STATEMENT OF JURISDICTION............................................................. 1

STATEMENT OF ISSUES........................................................................... 2

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings................................... 3

2. Statement of Facts.............................................................................. 4

3. District Court’s Decisions

(a) November 29 Decision................................................................. 15

(b) March 9 Decision........................................................................ 16

STANDARD OF REVIEW.......................................................................... 18

SUMMARY OF ARGUMENT.................................................................... 18

ARGUMENT

I. Summary Judgment was Improper on EEOC’s Claim that

MHS Violates the ADA by Requiring Disabled Employees to Compete

With Other Applicants For Jobs For Which the Disabled Employees

Are Qualified.

A. Absent undue hardship, the ADA requires employers

to reassign employees who, because of disability, can

no longer do the essential functions of their current jobs................... 21

B. Daugherty does not excuse MHS from reasonably

accommodating disabled employees needing reassignment................ 30

C. The district court’s faulty reasoning does not support

summary judgment............................................................................. 43

II. The District Court Erred In Granting Summary Judgment to

MHS on EEOC’s Claim Regarding Adrianna Cook.................................... 50

CONCLUSION............................................................................................ 59

CERTIFICATE OF COMPLIANCE............................................................ 60

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases Page(s)

Aka v. Washington Hospital Center,

156 F.3d 1284 (D.C. Cir. 1998) (en banc)............................... 20, 24-29, 45

Asgrow Seed Co. v. Winterboer,

513 U.S. 179 (1995)............................................................................... 22

Burch v. City of Nacogdoches,

174 F.3d 615 (5th Cir. 1999).................................................................. 51

Cleveland v. Policy Management Systems Corp.,

526 U.S. 795 (1999)............................................................................... 28

Consumer Products Safety Comm’n v. GTE Sylvania,

447 U.S. 102 (1980)......................................................................... 22, 24

Daugherty v. City of El Paso,

56 F.3d 695 (5th Cir. 1995)................................................... 19, 30-36, 46

Duncan v. Walker,

533 U.S. 167 (2001).............................................................................. 27

EEOC v. Abercrombie & Fitch Stores,

135 S. Ct. 2028 (2015).......................................................................... 34

EEOC v. Chevron Phillips Chemical Co.,

570 F.3d 606 (5th Cir. 2009).................................................................. 18

EEOC v. Humiston-Keeling,

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

overruled by EEOC v. United Airlines, 693 F.3d 760 (7th Cir. 2012) 39, 44-46

EEOC v. LHC Group,

773 F.3d 688 (5th Cir. 2014).............................................................. 53-54

EEOC v. Rite Way Service,

819 F.3d 235 (5th Cir. 2016).................................................................. 18

EEOC v. St. Joseph’s Hospital,

842 F.3d 1333 (11th Cir. 2016)......................................... 17-18, 20, 46-47

EEOC v. United Airlines,

693 F.3d 760 (7th Cir. 2012)............................................ 29, 39-40, 43-44

Foreman v. Babcock & Wilcox Co.,

117 F.3d 800 (5th Cir. 1997)............................................ 29, 31, 35-36, 41

Gile v. United Airlines,

95 F.3d 492 (7th Cir. 1996).................................................................... 29

Huber v. Wal-Mart Stores,

486 F.3d 480 (8th Cir.),

reh’g en banc denied, 493 F.3d 1002 (8th Cir. 2007),

cert. dismissed following settlement, 552 U.S. 1136 (2008)................ 44-46

Loulseged v. Akzo Nobel Inc.,

178 F.3d 731 (5th Cir. 1999).............................................................. 53-54

Martin v. Medtronic,

254 F.3d 573 (5th Cir. 2001).............................................................. 35-36

Medrano v. City of San Antonio,

179 F.App’x 897 (5th Cir. 2006)........................................................... 35

Mohasco Corp. v. Silver,

447 U.S. 807 (1980)............................................................................... 26

Moss v. Harris County Constable Precinct One,

851 F.3d 413 (5th Cir. 2017)............................................................. 51, 58

Park ‘N Fly v. Dollar Park & Fly,

469 U.S. 189 (1985)............................................................................... 22

Riel v. Electric Data Systems Corp.,

99 F.3d 678 (5th Cir. 1996)............................................................... 23, 32

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997)............................................................................... 26

Rogers v. International Marine Terminals,

87 F.3d 755 (5th Cir. 1996).................................................................... 58

Smith v. Midland Brake,

180 F.3d 1154 (10th Cir. 1999) (en banc)............................... 24-30, 44-45

Tolan v. Cotton,

134 S.Ct. 1861 (2014)........................................................................ 58-59

Toronka v. Continental Airlines,

411 F.App’x 719 (5th Cir. 2011)........................................................... 36

TRW Inc. v. Andrews,

534 U.S. 19 (2001)................................................................................. 27

Turco v. Hoechst Celanese Corp.,

101 F.3d 1090 (5th Cir. 1996)................................................................ 51

U.S. v. Boche-Perez,

755 F.3d 327 (5th Cir. 2014).................................................................. 35

U.S. Airways v. Barnett,

535 U.S. 391 (2002)......................................................................... passim

U.S. v. Clintwood Elkhorn Mining Co.,

553 U.S. 1 (2008)................................................................................... 22

Statutes, Regulations, and Rules

28 U.S.C. §1291........................................................................................... 2

28 U.S.C. §1331........................................................................................... 1

28 U.S.C. §1337........................................................................................... 1

28 U.S.C. §1345........................................................................................... 1

42 U.S.C. §2000e(j)..................................................................................... 35

42 U.S.C. §2000e-5(b).................................................................................. 1

Title I of the Americans with Disabilities Act,

42 U.S.C. §§12101 et seq................................................................. passim

42 U.S.C. §12101(a)(8)...................................................................... 27-28

42 U.S.C. §12101(b)............................................................................... 27

42 U.S.C. § 12111.................................................................................. 58

42 U.S.C. §12111(3)................................................................................ 49

42 U.S.C. §12111(8).......................................................................... 23, 55

42 U.S.C. § 12111(9)........................................................................ passim

42 U.S.C. §12111(10).............................................................................. 49

42 U.S.C. §12112(a).......................................................................... 22, 26

42 U.S.C. § 12112(b)(5)......................................................... 23, 29, 31-32

42 U.S.C. §12117(a)................................................................................ 1

29 C.F.R. §1630.2(o)(3)............................................................................... 53

29 C.F.R. App, Pt. 1630.9....................................................................... 53-54

Federal Rule of Appellate Procedure 4(a)(1)(B)............................................ 2

Federal Rule of Civil Procedure 59(e)........................................................ 1-2

Other Authority

H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 63 (1990),

reprinted at 1990 U.S.C.C.A.N. 303, 345.......................................... 25, 41

S.Rep. No. 116, 101st Cong., 1st Sess. 31-32 (1989)............................ 25, 29

Enforcement Guidance: Reasonable Accommodation &

Undue Hardship Under the [ADA], No. 915.002 (Oct. 17, 2002),

available at www.eeoc.gov/policy/docs/accommodation.html .............. passim

MHS Facts and Statistics, available at

https://www.methodisthealthsystem.org/workfiles/Methodist-Facts-and-Stats-April2013.pdf .............................................................................................. 4

Statement Regarding Oral Argument

The Equal Employment Opportunity Commission requests oral argument in this enforcement action brought under the Americans with Disabilities Act. The Commission contends that this Court’s legal precedent was seriously undermined by the Supreme Court’s decision in U.S. Airways v. Barnett, 535 U.S. 381 (2002). The Court has never explored the impact of the decision on the employer’s ADA duty to reassign an employee as a reasonable accommodation when the employee, due to disability, can no longer do the essential functions of his or her current position even with reasonable accommodation. Oral argument would allow the Court to clarify the confusion that has developed around both Barnett and the duty to reassign.

No. 17-10539

_________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

METHODIST HOSPITALS OF DALLAS,

d/b/a METHODIST HEALTH SYSTEM,

Defendant-Appellee.

________________________________________

On Appeal from the United States District Court

For the Northern District of Texas

The Honorable A. Joe Fish, District Judge

________________________________________

STATEMENT OF JURISDICTION

The Commission brought this suit under Title I of the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq. (“ADA”). The district court had jurisdiction under 28 U.S.C. §§1331, 1337, and 1345; and 42 U.S.C. §§2000e-5(b) & 12117(a). On November 4, 2016, the court granted summary judgment to the defendant on claims arising from its failure to provide reassignment as a reasonable accommodation under the ADA. See ROA.745. Final judgment was entered the same day. ROA.769. On March 9, 2017, the court denied the Commission’s motion for reconsideration under F.R.C.P 59(e). ROA.790. The Commission’s May 8, 2017, notice of appeal was timely (F.R.A.P. 4(a)(1)(B)). ROA.798. This Court has jurisdiction under 28 U.S.C. §1291.

STATEMENT OF ISSUES

1. Can an employer avoid its ADA duty to reasonably accommodate employees who, because of disability, can no longer do the essential functions of their current jobs even with accommodation by requiring those employees to compete for jobs with other applicants, instead of reassigning the disabled employees to vacant positions for which they are qualified?

2. Absent undue hardship, does an employer ordinarily have to make an exception to a best-qualified-selection policy, if necessary to reasonably accommodate a qualified disabled employee?

3. Would the evidence, viewed in the light most favorable to the Commission, support a finding that:

(a) The employer did not satisfy its duty to engage in the interactive process with Adrianna Cook because it never responded to her repeated requests for different work and other accommodations after she became disabled?

(b) Cook was qualified for the scheduling coordinator position, and any failure to supply a formal release had nothing to do with the company’s failure to reassign her to this position?

(c) Offering Cook unpaid leave, without ever communicating with her to determine what work she was capable of doing, was not a reasonable accommodation when she had applied and was qualified for the scheduling coordinator position and evidence showed that leave would not enable her to return to work as a patient care technician?

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an appeal from a final judgment dismissing the Commission’s enforcement action under the ADA. In September 2015, the Commission brought suit against Methodist Hospitals of Dallas, d/b/a Methodist Health System (“MHS”). The complaint alleges that MHS unlawfully refuses to reassign employees who, due to disability, become unable to do their current positions even with accommodation; instead, MHS requires such employees to compete against other applicants for jobs. The complaint further alleges that the company unlawfully refused to reassign Adrianna Cook to a job for which she was qualified after an on-the-job back injury prevented her from doing the strenuous tasks required of a patient care technician (“PCT”). ROA.9 (Complaint); see also ROA.253-41 (Amended Complaint). In November 2016, the district court granted MHS’s motion for summary judgment, dismissing the claim regarding Cook. 17-10539.745 (“November Order”). On March 9, 2017, the court denied the Commission’s motion for reconsideration, rejecting its policy claim. See ROA.790 (“March Order”).

2. Statement of Facts

MHS is a large medical complex with over 7500 full-time employees in the Dallas-Fort Worth area. https://www.methodisthealthsystem.org/workfiles/ Methodist-Facts-and-Stats-April2013.pdf (last visited July 31, 2017). Yet, during 2012 — the relevant timeframe for this case — the company had no written policy concerning the ADA, aside from general statements barring disability and other forms of discrimination and indicating that “questions concerning employment of individuals with disabilities or reasonable accommodation ... should be referred to [Human Resources]” (“HR”). ROA.473 (HR100, EEO & Sexual Harassment); ROA.475 (Employee Handbook §1 (Employment)); cf. ROA.475 (Nursing Supervisor Cherie James: never saw a written policy addressing reasonable accommodation); ROA.579 (Adrianna Cook: did not recall seeing or receiving any written policy on reasonably accommodating disabled employees).

In addition, MHS’s Rule 30(b)(6) witness, Dallas HR Director Regena Andrews, testified that “to [her] knowledge,” the company did not “provide any ADA training to its employees.” ROA.604. Even managers with hiring authority were not trained on the ADA or the duty to make reasonable accommodation. See, e.g., ROA.665-66 (Hiring Manager Derrick Spence: no ADA training at MHS); cf. ROA.636 (James: did not “recall specifically” any ADA training).

MHS had a procedure covering employees with temporary on-the-job injuries. Such employees typically were referred to doctors and received light duty assignments consistent with their restrictions. ROA.298 (Robertson Aff.). Employee Health Director Karen Barrett’s duties including overseeing the nurses at each MHS facility who were charged with coordinating doctor’s visits and arranging light duty assignments for injured employees. ROA.609-10 (Barrett). Employees remained on light duty until they could return to their regular jobs or reached “maximum medical improvement.” ROA.298 (Robertson Aff.). If employees could not return to work, they could request FMLA leave and short-term disability (“STD”) benefits. These programs were administered by third parties, the Reed Group and Lincoln Financial Group, respectively. See, e.g., ROA.330-31 (regarding Cook); cf. ROA.166 (Cook’s doctor sent information to both companies). MHS was notified when an employee requested FMLA leave. ROA.327 (Hernandez Aff.).

In contrast, Andrews admitted, MHS had “no special procedure” for assisting disabled employees who needed permanent reassignment because they could no longer do the essential functions of their current jobs, even with accommodation. ROA.596; see also ROA.588 (no “formalized process” to seek another position for disabled employees as reasonable accommodation). She also admitted that “nobody” and “no other department” was “tasked specifically” to assist disabled employees in such circumstances. ROA.593. Informally, disabled employees could talk to their supervisors about possible accommodations, and the supervisor might refer the employee to HR or MHS’s on-line jobs bank. ROA.589-90 (Andrews). But, according to Andrews, neither HR nor the supervisor was responsible for assisting employees in identifying available jobs the employee could do, given his or her medical condition and restrictions. ROA.589-91 (Andrews).

MHS has an electronic jobs bank listing vacant positions throughout its system. Vacancies filled from within a department are not posted on the jobs bank (ROA.370) (Transfer Policy ¶11), but all other transfers must go through HR. But cf. ROA.595 (Andrews: even intradepartmental transfers go through HR).

Disabled employees needing reassignment as a reasonable accommodation must, on their own, check the jobs bank, identify positions for which they are qualified, and submit a transfer application. ROA.591, 593. They are then required to compete for the position with all other internal and external applicants. ROA.656 (Leopard). In MHS’s view, allowing employees to compete for jobs constitutes a reasonable accommodation. ROA.597-98 (Andrews).

MHS asserts that it selects the most qualified applicant available when filling every vacancy, so all individuals interested in the position must compete for it. ROA.370 (Transfer Policy ¶9); ROA.595(Andrews). In the company’s view, it is “essential” that “each and every job” be filled with the “most qualified” candidate. ROA.379 (Craig Aff.); ROA.594-95 (Andrews). Placing otherwise qualified disabled candidates into vacant positions as a reasonable accommodation would “compromise the standard of excellence” the company “has achieved and prestigious recognition [it] has received,” expose patients to “imminent danger and possible harm,” and undermine the company’s ability to retain “high quality employees.” ROA.379. MHS did not explain why assigning light duty work to employees with on-the-job injuries does not raise these same concerns.

Transfer Process

While there is no policy addressing reassignment as a reasonable accommodation, the company does have a Transfer Policy, aimed at providing “promotional opportunities” for “professional growth and advancement for employees.” ROA.369. All “qualified, eligible employees” receive equal opportunity to request consideration for transfer (ROA.369); disabled employees do not receive special treatment. Cf. ROA.596 (Andrews: transfer form does not ask about accommodation).

Under the Transfer Policy, both disabled and non-disabled employees desiring to transfer to a vacant position posted on the jobs bank must complete an Employee Transfer Request form. ROA.369. “Key factors” used to assess internal applicants include work experience (six months or more in current position), educational preparation, documented performance record (“fully meets” all present performance standards, no recent disciplinary actions), attendance/punctuality, and overall service time. ROA.360-70 (Policy ¶¶1, 10). Applicants from outside the company may also apply for positions, but an internal transfer request should be given “consideration” over external applicants “when qualifications as judged by MHS are equal.” ROA.370 (Policy ¶9). It is unclear what factors the hiring manager uses when judging the relative qualifications of internal and external applicants.

Once the application procedure for a particular vacancy is complete, HR employees referred to as “recruiters” or “HR business partners” review the applications — internal and external — and screen out applicants that do not meet the required qualifications. See ROA.654-57 (Recruiter Erik Leopard). The recruiter then forwards the remaining applications to the hiring manager, who makes the final selection. ROA.657. While there are exceptions, hiring managers normally do not “input any notes” to explain their decisions; they simply write the word “offer” beside the name of the selected applicant. ROA.586-87 (Andrews).

Adrianna Cook

Adrianna Cook worked as a PCT, or nursing assistant, at an MHS facility from December 2008 to March 2012. A PCT checks medical readings, assists with general patient comfort, and turns, feeds, and bathes patients. ROA.291-92 (job description). Although Cook is small in stature, her supervisor, Cherie James, described her performance as “very good,” adding that she was “never disciplined for anything.” ROA.639.

On March 7, 2012, Cook injured her back while attempting to turn a patient; she was diagnosed with a “bulging disc” and “annular tear.” ROA.575 (Cook); see also ROA.549 (Dr. Ozanne: diagnosing “torn and degenerative disk condition”). She immediately sought medical help and was taken off work for a few days; shortly thereafter, she was assigned light duty work in the pharmacy. ROA.561; ROA.298-99 (Robertson Aff.). Although she was in “tremendous pain” (ROA.561), there is no evidence that she missed any shifts. On April 13, however, Cook was released for full duty as a PCT. ROA.317 (James Aff.). Her attempted return to work the next day was unsuccessful; she left after only a few hours. Id.

Over the next few months, Cook saw several doctors who certified that she should remain off work. ROA.309, 312-15. With the doctor’s statements, Cook applied for and was granted FMLA leave, beginning in mid-April. See, e.g., ROA.335 (list of FMLA leave requests, 4/23 through 7/15).

As her family’s main breadwinner, Cook wanted to continue working. Accordingly, while out on leave, Cook repeatedly asked James, her supervisor, for accommodations such as “different work” or assistance with the more strenuous tasks of her old job. ROA.562; 568-59; ROA.288-89 (Cook: believed she could have done PCT job with accommodations). Although she knew that Cook had lifting restrictions and could not continue working as a PCT (ROA.647-48), James was not sure what an employee like Cook needed to do to get a reasonable accommodation; she did not recall even suggesting that Cook check the jobs bank. ROA.636-38, ROA.646 (James). James did remember that she and an HR employee had once called Cook; she did not, however, recall anything about the call except offering to “guid[e]” Cook in seeking other work and telling her to let them know if she needed any help. ROA.645-46. James admittedly did not “follow up” to help Cook find another job. ROA.647. Cook testified that no one from MHS who was knowledgeable about the ADA ever contacted her to discuss accommodations or otherwise to engage in the interactive process. ROA.452-53.

In June 2012, Cook once again asked James for help finding work. ROA.569. According to Cook, James then called Melonie Jackson, the HR Director of their facility. ROA.570-71 (Cook was present). Without even talking to Cook, Jackson responded that there was nothing else Cook could do, so she should “just resign.” ROA.571-72. After the call, James repeated that Cook should submit her resignation. ROA.572.

Cook’s twelve weeks of FMLA leave was set to expire on July 15. ROA.469. On July 9, a benefits specialist from Lincoln Financial, the STD benefits administrator, emailed MHS to inquire whether the company could accommodate Cook with “the following restrictions: minimal lifting and bending and twisting[;] 20 lbs occasional lift limit.” ROA.464 (7/9/2012 email). On July 12, this email was forwarded to Barrett, as well as Melonie Jackson. ROA.464 (7/12/2012 email). Neither responded for several weeks. ROA.463-64 (8/3/2012 emails).

Also on July 12, Dr. Ozanne, Cook’s doctor, changed his assessment of Cook’s condition; instead of off work entirely, he now concluded that she was “unable to return to the type of work involved in patient care,” adding that this would be a “permanent restriction.” ROA.549. This same assessment was contained in a June 29 report from Dr. Ozanne. ROA.456-57. Although there is no proof MHS received it, this report echoes the Lincoln Financial restrictions, limiting Cook to “minimal lifting, bending and twisting,” with a “20 lb. occasional lift limit.” ROA.457. The report also specifies that Cook could not “return to her work in patient care in the hospital,” and advises that she consider “schooling or training for a different type of work.” ROA.456.

Scheduling Coordinator Position

Shortly after her injury, Cook began checking the jobs bank and applied for six PCT or similar positions, which were apparently beyond her physical limitations. See ROA.452-53. However, on July 2 — after receiving the June 29 doctor’s report — Cook applied for a clerical position, “scheduling coordinator” in the surgery department. ROA.547 (job description); see also ROA.452-53 (Cook’s Aff.). MHS acknowledges that she met the qualifications for the position; in fact, the recruiter forwarded her application to Hiring Manager Derrick Spence. ROA.584-85 (Andrews). Although HR personnel presumably were aware that Cook’s FMLA leave was ending, she had light duty restrictions, and her doctor had strongly suggested that she could do work within her restrictions, no one from MHS contacted Cook about this position (or any other) — or otherwise engaged in the interactive process (ROA.452-53), even though the position was not filled until late July.

On July 31, MHS informed Cook that the job had gone to another candidate but her application would remain on file for 90 days. ROA.460 (letter). There is no record of why Cook was not selected. ROA.587 (Andrews).

On August 3, the Lincoln Financial email resurfaced, and HR personnel began discussing Cook’s need for accommodation. See generally ROA.461-64 (August 3-6 email chain). Recalling Lincoln Financial’s inquiry about accommodating Cook’s restrictions, a benefits specialist asked Barrett whether she had seen the “paperwork” that Cook had submitted regarding job accommodations. ROA.463-64 (8/3/2012 email). Barrett knew almost nothing about Cook. She could not recall having “any communication with [Cook] regarding her request for accommodation” (ROA.623), reviewing her personnel file, asking Cook or other MHS employees about Cook’s skill set, or checking for other available clerical jobs. ROA.624-26; see also ROA.625 (Barrett: could not recall emailing Cook). Nevertheless, in response to the specialist’s question, Barrett opined that if Jackson’s facility could not accommodate Cook’s restrictions, it was unlikely that Cook’s “skill set lends many alternatives.” ROA.462 (8/6/2012 email). Barrett then advised against “return[ing Cook] to work” — presumably as a PCT — since it “might increase her chance of sustaining another injury.” ROA.461-62 (8/6/2-12 email); ROA.627-28 (Barrett: made the decision not to return Cook to work).

No one suggested contacting Cook to ascertain whether she had the “skill set” to do another job. Nor did anyone consider the fact that Cook had just been deemed qualified for the scheduling coordinator position, which required clerical skills. Instead, without considering other options — or the fact that her doctor had upgraded her condition to “permanently” unable to return to patient care work, implying she could perform non-patient care work — HR decided to place Cook on unpaid leave, thereby allowing the company to fill her PCT spot. ROA.461 (8/6/2012 email). Although Barrett acknowledged that Cook would be “returning from a personal (FMLA/STD) medical leave” (ROA.462), there was no discussion of whether she had provided a release allowing her to work.

The following day, August 7, Benefits Specialist Josie Hernandez sent Cook a letter offering her a 6-month unpaid leave with no guarantee of reemployment. ROA.466 (letter). To apply, the letter stated, she should submit a doctor’s statement certifying that she was “unable to return-to-work.” ROA.466. If she could return during this period, she would have one month to apply for and “secure” an “open position within the hospital”; otherwise she would be terminated. ROA.466. She would also be terminated if she failed timely to submit the doctor’s certification. ROA.466. Contrary to the district court’s characterization (ROA.748), the letter did not “urge” Cook to contact Hernandez to “discuss her employment.” There is no mention of any release. Cook did not respond. She explained that the letter required that she submit a doctor’s note attesting that she could not work, but that would be untrue since she could do clerical work. ROA.453-54 (Cook Aff.: noting her doctor had already submitted a note listing her restrictions).

In mid-September, Cook was terminated, retroactive to August 21. ROA.349 (letter). She appealed, explaining that her injury prevented her from doing her previous duties and that her doctor had placed her on “limited physical activity.” ROA.350 (letter). In response, MHS reiterated that to apply for unpaid leave, she should submit a doctor’s report attesting that she could not work. ROA.351 (letter). Cook did not respond.

3. District Court Decisions

(a) November 29 Decision

The district court granted summary judgment to MHS on the Commission’s claim regarding Cook. The court held that the Commission could not show that Cook was qualified for the scheduling coordinator position “at the time of the application.” ROA.755-56. “If an employee is placed off work due to a medical condition,” the court explained, “the employee may need to provide a release informing the employer when they can return to work.” ROA.757. An “employee who fails to do so is not a qualified individual under the ADA.” Id.

Here, the court noted, although MHS received the July 12 doctor’s note stating that Cook could not do patient care work, there was no evidence the company knew she could do the scheduling coordinator job on July 2, when she applied. ROA.758-59 (no evidence MHS saw June 29th doctor’s report). The July 9 email from Lincoln Financial, the court opined, was “not a medical release” but simply “an email inquiring about potential accommodations should Cook be released to return to work.” ROA.759. And because Cook was on FMLA leave when she applied for the job and had not indicated when she would return, the company “was in the dark as to [her] future plans.” ROA.761. Finally, the court noted, because Cook never responded to MHS’s August 7 letter offering her unpaid personal leave, she was charged with causing the breakdown of the interactive process. She therefore lost any right to reasonable accommodation. ROA.762 n.8.

Turning to EEOC’s challenge to MHS’s reassignment policy, the court then acknowledged that courts have found that reassignment may be appropriate where an employee cannot do her current job even with reasonable accommodation. In this case, however, there was no evidence that Cook treated reassignment as “an accommodation of last resort,” as required by EEOC’s guidance. ROA.764. In the court’s view, Cook should have explored other accommodations, such as resuming light duty in the pharmacy or seeking assistance with the lifting and bending tasks essential to her PCT position, before insisting on reassignment. ROA.764-66. Furthermore, the court stated, it had “already concluded that Cook was not otherwise qualified” for any position, so even if EEOC could show that reassignment was appropriate in this case, the court need not “decide whether MHS’s reassignment policy, as applied to Cook, violates the ADA.” ROA.767.

(b) March 9 Decision

The Commission moved for reconsideration, arguing that the court should have addressed the broader question of whether MHS’s reassignment policy violates the ADA. In response, the court acknowledged a circuit split as to whether, after U.S. Airways v. Barnett, 535 U.S. 391 (2002), the ADA requires employers to reassign disabled employees, rather than requiring them to compete for jobs with other applicants. While EEOC argued that three circuits supported its position, the court noted, only the Seventh Circuit decision post-dates Barnett, and that court simply remanded the case to the district court to decide whether reassignment was required. In contrast, the court continued, MHS cited a post-Barnett Eighth Circuit decision that holds “‘the ADA is not an affirmative action statute’” and does not require reassignment in violation of an employer’s “‘policy’” of hiring “‘the most qualified candidate.’” ROA.793-95 (citation omitted).

While the “Fifth Circuit has not directly addressed the issue” post-Barnett, the district court stated, “the weight of Fifth Circuit authority holds that the ADA does not entitle a disabled employee to preferential treatment.” ROA.795. In the court’s view, this position is “aligned” with EEOC v. St. Joseph’s Hospital, 842 F.3d 1333, 1345-47 (11th Cir. 2016), which holds that “‘the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.’” ROA.795-96. Purporting to apply Barnett’s two-step analysis, St. Joseph’s concludes that, like reassignment in violation of a seniority provision, “‘reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable in the run of cases.’” ROA.796 (quoting St. Joseph’s, 842 F.3d at 1333).

The district court agreed. And because EEOC had not shown that MHS’s “policy of requiring disabled employees to compete with non-disabled applicants to hire the best qualified runs afoul of the ADA,” the court concluded, summary judgment would be granted. ROA.736-37.

STANDARD OF REVIEW

This Court reviews the grant of summary judgment de novo, applying the same standard as the court below. EEOC v. Rite Way Serv., 819 F.3d 235, 239 (5th Cir. 2016). Summary judgment is inappropriate unless, interpreting all facts and drawing all reasonable inferences in the nonmovant’s favor, “the record reveals no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. The moving party “bears the burden of identifying the portions of the record that demonstrate the absence of a genuine issue of material fact.” EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009). The nonmovant must then “point to or produce specific facts” demonstrating a genuine issue of material fact. Id.

SUMMARY OF ARGUMENT

EEOC brought this ADA suit challenging MHS’s policy of requiring disabled employees to compete for vacant positions, rather than reassigning such employees. MHS responded that its disability-neutral rule is to select the best qualified candidate, though it assigns employees with on-the-job injuries to light duty positions without regard to this policy.

MHS’s argument cannot be reconciled with the plain language of the statute. The ADA requires employers to reasonably accommodate disabled workers. “Reassignment to a vacant position” is expressly listed as an accommodation. The core word “assign” means to “appoint.” An employee who competes for and obtains a job elsewhere in the company is not “reassigned”; he may have changed job but has done so under his own power. Because the ADA already prohibits discrimination based on disability, MHS’s interpretation of “reassignment” as meaning only the opportunity to compete with non-disabled employees for a vacant position effectively renders the term meaningless. And unlike reassignment which, where possible, keeps disabled employees in the workforce, MHS’s interpretation does nothing to further the ADA’s employment goals.

The district court granted summary judgment to MHS. That was error. As the court noted, in Daugherty and its progeny, this Court held that employers need not treat disabled employees preferentially and, therefore, are not required to violate a best-qualified-selection policy. This Court should revisit this precedent, however, because it was “explicitly or implicitly” overruled by Barnett. In Barnett the Supreme Court held that preferences, including exceptions to disability-neutral rules, may be necessary to accommodate disabled employees. Accordingly, this Court should hold — consistent with the en banc D.C. and Tenth Circuits — that employers may be required to reassign disabled employees to vacant positions for which they are qualified, even if that requires violating a best-qualified-selection policy.

The district court also erred in relying on EEOC v. St. Joseph’s Hospital, which held that preferences are not required. St. Joseph’s completely ignores Barnett’s discussion regarding preferences and exceptions to disability-neutral rules. Instead, it bases its decision on another part of Barnett holding that accommodations in violation of a seniority provision are typically unreasonable; the decision concludes the same is true for best-qualified-selection policies. To the contrary, Barnett carved out a narrow exception to the general rule for seniority provisions given their unique status in American labor law. Best-qualified-selection policies have no comparable status and are so common that the exception would swallow the rule. St. Joseph’s also cited safety concerns for why employers must be permitted to hire the best qualified candidates. While understandable, these concerns are overstated in this context. Reassignment is appropriate only if disabled employees are qualified; because employers set qualification standards, employees who meet them should be fully capable of doing the job well. Accordingly, this Court should reverse summary judgment on the Commission’s policy claim.

EEOC also challenged MHS’s failure to reassign Adrianna Cook, a disabled employee who was fired instead of reassigned. In granting summary judgment, the court erroneously resolved factual issues in MHS’s favor and improperly decided several legal issues.

ARGUMENT

I. Summary Judgment was Improper on EEOC’s Claim that MHS Violates the ADA by Requiring Disabled Employees to Compete With Other Applicants For Jobs For Which the Disabled Employees Are Qualified.

A. Absent undue hardship, the ADA requires employers to reassign employees who, because of disability, can no longer do the essential functions of their current jobs.

The main issue in this appeal is whether the ADA requires an employer, absent undue hardship, to reassign employees who can no longer do the essential functions of their current jobs even with accommodation. The district court recognized that “Congress contemplated reassignment as a reasonable accommodation while drafting the ADA.” ROA.763 (November Order). The court concluded, however, that employers like MHS, who purport to select the most qualified candidate for “each and every” position, need not reassign current employees who will lose their jobs due to disability but may simply require or permit them to compete against other applicants for vacant positions. ROA.796-97 (March Order). This was error. The plain language and legislative history of the reasonable accommodation provision, along with the statutory structure and purpose of the ADA, confirm that “reassignment” means “reassignment,” not just “permission to compete.” Absent undue hardship, employers must reasonably accommodate employees with disabilities by reassigning — i.e., appointing — them to vacant positions for which they are qualified when disability prevents them from doing their current jobs.

The “starting point” for interpreting a statute “is the language employed by Congress” and the “assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Park ‘N Fly v. Dollar Park & Fly, 469 U.S. 189, 194 (1985) (citation omitted); cf. Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in a statute are undefined, we give them their ordinary meaning.”) (citation omitted). “Absent a clearly expressed legislative intention to the contrary, the language must ordinarily be regarded as conclusive.” Consumer Prod. Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108 (1980); see also U.S. v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 11 (2008) (stating that the “strong presumption that the plain language of the statute expresses congressional intent is rebutted only in rare and exceptional circumstances”) (citations omitted).

The ADA prohibits an employer like MHS from “discriminating” against a “qualified individual with a disability” because of the individual’s disability. 42 U.S.C. §12112(a). An individual is “qualified” if she satisfies the requisite skill and other job-related requirements of the position she holds or desires and can do the essential functions of that position, with or without reasonable accommodation. 42 U.S.C. §12111(8). The word “discriminate” is defined to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business.” 42 U.S.C. §12112(b)(5)(A). A requested accommodation is reasonable if it “seems reasonable on its face, i.e., ordinarily or in the run of cases.” U.S. Airways v. Barnett, 535 U.S. 391, 402-03 (2002) (citing cases); see also Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996) (“a method of accommodation that is reasonable in the run of cases”) (citation omitted).

In this case, the accommodation Adrianna Cook sought was reassignment to a vacant position for which she was qualified. The ADA includes “reassignment to a vacant position” in the non-exclusive list of possible “reasonable accommodations.” 42 U.S.C. §12111(9)(B). As a listed accommodation, a request for reassignment to a vacant position for which the employee is qualified is presumptively reasonable. See Barnett, 535 U.S. at 403.

At issue here is whether an employer satisfies its duty to reassign disabled employees like Cook by requiring them to convince the company, through competition with other applicants, that they are the best qualified candidate for a particular job. In the Commission’s view, the answer is no. The ordinary meaning of the “core” word “‘to assign’” is “‘to appoint [one] to a post or duty.’” Aka v. Washington Hosp. Ctr, 156 F.3d 1284, 1302, 1304 (D.C. Cir. 1998) (en banc) (citing Webster’s Third New Int’l Dictionary) (alteration in Aka). A “reassignment” therefore involves an appointment to a new position and would logically entail “some active effort on the part of the employer.” Aka, 156 F.3d at 1304; accord Smith v. Midland Brake, 180 F.3d 1154, 1164-66 (10th Cir. 1999) (en banc) (citing Aka). “An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been ‘reassigned’” in any ordinary sense of that word. He may have changed jobs but he has done so “entirely under his own power, rather than having been appointed to a new position.” Aka, 156 F.3d at 1304, 1302; see also Smith, 180 F.3d at 1164, 1167-68 (noting that “literal language” is “reassignment,” not “consideration of a reassignment” or permission to compete for a job).

Although a “clearly expressed” contrary legislative intention may override the plain meaning of a statutory term (Consumer Prod., 447 U.S. at 108), the legislative history of the reassignment provision confirms that the term “reassignment to a vacant position” was intended to carry its ordinary and plain meaning. Congress explained that the provision was aimed at enabling current employees, who would otherwise lose their jobs due to disability, to remain in the workforce as productive workers as long as there is a vacancy for which they are qualified. Congress stated,

Reasonable accommodation may also include reassignment to a vacant position. If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and [the] employer from losing a valuable worker.

H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 63 (1990) (“House Report”) (adding that, if possible, employee should be accommodated in his or her present position and that “bumping” is not required), reprinted at 1990 U.S.C.C.A.N. 303, 345; accord S.Rep. No. 116, 101st Cong., 1st Sess. 31-32 (1989) (“Senate Report”) (adding that reassignment is “not available to applicants for employment”). Nothing suggests that Congress intended that employees needing reassignment be required to compete for vacant positions with other employees.

In the Commission’s view, therefore, the statutory language, coupled with the legislative history, conclusively establishes that “reassignment” does not mean “permission to compete.” See Enforcement Guidance: Reasonable Accommodation & Undue Hardship Under the [ADA], No. 915.002 at 46 (Q/A 29) (Oct. 17, 2002) (“Does reassignment mean that the employee is permitted to compete for a vacant position? No. 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.”) (“Guidance”), also available at www.eeoc.gov/policy/docs/accommodation.html.

To the extent the word, viewed in isolation, is open to competing interpretations, the statutory structure as well as its purpose may also be consulted. See Robinson v. Shell Oil Co., 519 U.S. 337, 345 (1997) (considering language, context, and purpose); Mohasco Corp. v. Silver, 447 U.S. 807, 827 (1980) (considering “language, structure, and purpose”). Here, the structure of the statute strongly suggests that “reassignment” means more than allowing disabled employees to seek positions through competition with other employees. Importantly, “reassignment” is a form of “reasonable accommodation,” but awarding a disabled employee a job for which he is the best qualified would not normally be considered an accommodation at all; it is simply non-discriminatory treatment. Section 102(a) of the ADA, 42 U.S.C. §12112(a), separately prohibits an employer from discriminating against a disabled person in his or her application for a vacant job. Denying a disabled employee a position for which he or she is the best qualified would strongly suggest unlawful disparate treatment, a violation of §102(a).

In light of this overlap, both Smith and Aka reason that including reassignment in the duty to accommodate would be redundant if it required only non-discriminatory consideration in competition with other employees. Smith, 180 F.3d at 1164-65; Aka, 156 F.3d at 1304.[1] It “is a cardinal principle of statutory construction” that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citations omitted). Because the “duty is to give effect, if possible, to every clause and word of a statute,” this Court should be “reluctant to treat statutory terms as surplusage.” Duncan v. Walker, 533 U.S. 167, 174 (2001) (citations omitted).

Finally, construing the statute to require reassignment, absent undue hardship, accords with the underlying purposes of the ADA. The ADA was designed, inter alia, to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” as well as “clear, strong, consistent, enforceable standards addressing discrimination” against such individuals. 42 U.S.C. §12101(b). In passing the legislation, Congress explained that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency” for such individuals. 42 U.S.C. §12101(a)(8); see also Smith, 180 F.3d at 1168 (noting that “one of Congress’ [multiple] objectives” in requiring reasonable accommodation “was to facilitate economic independence for otherwise qualified disabled individuals”) (citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 801 (1999) (“The ADA seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity.”)). By enabling employees to remain in the workforce doing work for which they are qualified when they would otherwise be forced out because of disability, the reassignment provision furthers these purposes and assists in achieving these goals.

Consistent with the plain text, legislative history, structure, and purpose of the statute, therefore, the Commission, joined by the en banc Tenth and D.C. Circuits, takes the position that employers like MHS must “reassign” — that is, “appoint” — disabled employees to vacant position for which they are qualified when such employees, because of disability, can no longer do the essential functions of their current positions. “Anything else, such as requiring the reassigned employee to be the best qualified employee to the vacant job, is judicial gloss unwarranted by the statutory language or its legislative history.” Smith, 180 F.3d at 1169; cf. EEOC v. United Airlines, 693 F.3d 760, 765 (7th Cir. 2012) (“adopt[ing] a similar approach” to Aka and Smith).

There are, of course, limits on the duty to reassign. It extends only to current employees, not applicants, and only to existing positions that are or will soon be vacant; “bumping” is not required, and the employer need not promote the individual or create a job for him. See, e.g., Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) (“position must first exist and be vacant”); Senate Report at 31-32; Guidance at 18-19; Gile v. United Airlines, 95 F.3d 492, 499 (7th Cir. 1996). Moreover, although the employer should take the employee’s interests into account, in the end, the employer may place the employee into any equivalent position for which he is qualified. And reassignment, like any other reasonable accommodation, should not impose an undue hardship on the employer. 42 U.S.C. §12112(b)(5); Guidance at 17. Finally, reassignment should be considered an accommodation of “last resort,” required only where no other accommodation would enable the employee to do his current job or all other reasonable accommodations would impose an undue hardship. Guidance at 18.

Applying those standards to this case, a jury could easily find that MHS does not provide reasonable accommodation to employees needing reassignment because of disability. The company simply allows such employees to do what all employees can do — check the jobs bank, attempt to identify vacancies for which they qualify, submit a transfer application, and hope that one of the applications pans out. ROA-591-93 (Andrews). If it does not, unlike non-disabled employees desiring a transfer, the disabled employee will likely be terminated. Viewed in the Commission’s favor, this evidence amply supports a finding that MHS’s practice of requiring disabled employees to compete for jobs, in lieu of reassignment, does not satisfy the plain terms of the ADA’s reasonable accommodation requirement.

B. Daugherty does not excuse MHS from reasonably accommodating disabled employees needing reassignment.

In its briefs below, MHS took the position, and the district court agreed, that notwithstanding how other circuits and the Commission interpret the reassignment provision, employers in this Circuit need not reassign disabled employees as a reasonable accommodation. As the district court observed, Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995), and its progeny hold that the ADA does not require “affirmative action” for, or “preferential treatment” of, individuals with disabilities, but only “non-discrimination.” ROA.795; accord Defendant’s Summary Judgment Memorandum (“MSJ”) at 19-20. Thus, the court concluded, MHS’s policy of requiring disabled employees to compete for jobs is permissible. ROA.795-97. This reliance on Daugherty misjudges the impact of Barnett.

Daugherty arose shortly after the ADA went into effect. The plaintiff, a part-time bus-driver, was placed on leave after developing insulin-dependent diabetes. He sued when his employer refused to provide his proposed accommodations — essentially, promotions — because of undue hardship. 56 F.3d at 699-700; compare Guidance at Q/A #24 (promotion not required). This Court rejected the plaintiff’s claim, finding no evidence that he was treated worse than similarly-situated non-disabled employees. In often-quoted language, the Court then stated: “[W]e do not read the ADA as requiring affirmative 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. It prohibits employment discrimination against qualified individuals with disabilities, no more and no less.” 56 F.3d at 764. Quoting Daugherty, this Court in Foreman added that an employer “would not be obligated to accommodate [a disabled employee] by reassigning him to a new position.” 117 F.3d at 810.

Daugherty’s interpretation of the ADA is flawed because it overlooks the fact that the statute prohibits more than disparate treatment. As noted above, the ADA expressly defines “discrimination” to include “not making reasonable accommodation,” and “reasonable accommodation” may include “reassignment to a vacant position.” 42 U.S.C. §§ 12111(9)(B), 12112(b)(5). Thus, an employer may violate the statute if it does not treat disabled and nondisabled employees differently, even when the difference in treatment includes reassignment. See, e.g., Riel, 99 F.3d at 681 (“By requiring reasonable accommodation, the ADA shifts away from similar treatment to different treatment of the disabled by accommodating their disabilities.”). Nothing in the statute suggests that reassignment should be treated any differently than other possible accommodations.

Aside from this mistaken statutory reading, however, this Court should revisit and overrule Daugherty because the position articulated there — that an employer need not treat a disabled employee preferentially — was squarely rejected by the Supreme Court in Barnett. The issue in Barnett was whether, as a reasonable accommodation, a disabled junior employee should be permitted to remain in a physically undemanding job even though two more senior employees wanted to bid on the position and all three employees were covered by the employer’s seniority system — a disability-neutral rule. In the Supreme Court, the employer took the position — along the lines of Daugherty — that the ADA “seeks only ‘equal’ treatment for those with disabilities.” 535 U.S. at 397. The employer argued, “Insofar as a requested accommodation violates a disability-neutral rule, such as a seniority rule, it grants the [disabled] employee treatment that other workers could not receive.” Id. And because the ADA does not “require an employers to grant preferential treatment,” the employer concluded, “it does not require the employer to grant a request” — such as allowing the junior employee to stay put — “that, in violating a disability-neutral rule, would provide a preference.” Id.

The Supreme Court flatly disagreed. The argument, the Court explained, “fails to recognize what the Act specifies, namely, that preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.” 535 U.S. at 397. The Court reasoned that the ADA “requires preferences in the form of ‘reasonable accommodations’ that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy. By definition any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially.” Id. “And,” the Court added, “the fact that the difference in treatment violates an employer’s disability-neutral rule cannot by itself place the accommodation beyond the Act’s potential reach.” Id. The Court observed that “[m]any employers will have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability,” citing 42 U.S.C. §12111(9)(B) (which lists possible accommodations including reassignment). Id. Yet, the Court continued, while providing such examples, Congress “said nothing suggesting that the presence of such neutral rules would create an automatic exception.” Id. at 397. The “nature of the ‘reasonable accommodation’ requirement, the statutory examples, and the Act’s silence about the exempting effect of neutral rules” convinced the Court “that the Act does not create any such automatic exemption.” Id. The mere fact that an accommodation “would provide a ‘preference’ — in the sense that it would permit the worker with a disability to violate a rule that others must obey — cannot in and of itself automatically show that the accommodation is not ‘reasonable.’” Id. at 398 (rejecting position taken by defendant and Justice Scalia in dissent).

Thus, Barnett makes clear that the ADA may require preferences, including exceptions to disability-neutral rules, if necessary to provide a reasonable accommodation. [2]

To the extent that cases such as Daugherty hold that the ADA does not require preferential treatment of disabled employees — including exempting them from disability-neutral rules that non-disabled employees must follow — that holding has been superseded by Barnett. Barnett is more than “merely illuminating with respect to [this] case,” U.S. v. Boche-Perez, 755 F.3d 327, 334 (5th Cir. 2014); it “explicitly or implicitly” overrules this Court’s precedent. Martin v. Medtronic, 254 F.3d 573, 577 (5th Cir. 2001) (panel can overrule prior panel decision where “intervening Supreme Court case explicitly or implicitly overrul[es] that prior precedent”) (citation omitted).

This Court has issued two post-Barnett reassignment decisions. Neither is published and neither suggests the Court was asked to or did grapple with the continued viability of Daugherty’s no-preference rule after Barnett. Thus, neither decision would prevent this Court from reconsidering Daugherty in light of Barnett.

Medrano v. City of San Antonio, 179 F.App’x 897 (5th Cir. 2006), involves a proposed reassignment that conflicted with a seniority system. Applying Barnett, this Court held that the proposed reassignment was unreasonable because the plaintiff failed to show special circumstances justifying violation of the seniority system. Id. at 900-04. Medrano does not mention Daugherty and mentions Foreman only in connection with seniority, where, as discussed infra, there is no conflict with Barnett. Id. at 904.

Toronka v. Continental Airlines, 411 F.App’x 719 (5th Cir. 2011), references Daugherty and Barnett but does not put them together. Citing Barnett, Toronka states that absent special circumstances, a proposed accommodation that undermines a seniority system is unreasonable. Id. at 724-25. A footnote then cites Daugherty and Foreman as holding that the ADA prohibits employment discrimination but does not require employers to give disabled persons priority in hiring or reassignment. Id. at 726 n.7 (citations omitted). The actual holding in Toronka is unremarkable: The employer was not required to “fashion” a new job for the plaintiff because for reassignment to be reasonable, “a position must first exist and be vacant.” Id. at 726 (citations omitted).

MHS’s efforts to distinguish Barnett and preserve Daugherty’s anti-preference principles are unavailing. The company argues that its policy is lawful because the ADA is intended only to “provide equal employment opportunity.” Reply at 16. According to the company, the “preferences” in Barnett refer to providing accommodations needed to “level the playing field,” not to making exceptions to a best-qualified-selection policy. Reply at 17. This argument should be rejected. Even if disabled employees were entitled only to a level playing field, that is what they get under the “reassignment” provision. Whereas employees needing reassignment will be terminated, due to disability, if they are not appointed to a position for which they are qualified, non-disabled applicants denied the job can normally remain employed in their current positions. Thus, only through reassignment can the disabled employees enjoy the same workplace opportunities as non-disabled employees enjoy — the opportunity to continue working as productive members of the workforce.

MHS also argues that even under Barnett, the company would not have to make an exception to its best-qualified-selection policy in order to reassign disabled employees. Barnett, the company noted, holds that reassignment in violation of a seniority system was unreasonable in the run of cases. The same reasoning, MHS argues, confirms that reassignment in violation of a best-qualified-selection policy is likewise unreasonable, here and in the run of cases. MSJ at 24-25. That misreads Barnett.

After rejecting the employer’s argument that preferences are never required under the ADA, Barnett goes on to explain the parties’ respective burdens where, as here and in Barnett, the requested accommodation might violate an employer’s disability-neutral rule or policy. 535 U.S. at 401-02. According to Barnett, a plaintiff bears the initial burden of showing that the accommodation he is requesting “seems reasonable on its face, i.e., ordinarily or in the run of cases.” 535 U.S. at 402. Barnett also presumed that ordinarily, a request for reassignment — an accommodation Congress expressly listed in the statute — “would be reasonable within the meaning of the statute.” See id. at 402-03 (quoting reassignment provision). Assuming a plaintiff makes that showing, the burden then shifts to the employer to show “special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Id.

Applying that standard, the Supreme Court concluded that, although the requested accommodation — assignment to the mail room — ordinarily would be reasonable, it would most likely be unreasonable in that case for one reason: “the assignment would violate the rules of a seniority system.” 535 U.S. at 403. The Court concluded that it would not be reasonable in the run of cases for an assignment to “trump the rules of a seniority system” because, the Court explained, seniority systems occupy a special place in American labor law, governing as they do the relationship between labor and management. 535 U.S. at 403-04. The Court noted that seniority systems provide benefits such as “job security” — especially prized in times of layoffs — as well as an “opportunity for steady and predictable advancement based on objective standards.” These benefits encourage employees to invest in the employing company, “accepting ‘less than their value to the firm early in their careers’ in return for greater benefits in later years.” Id. at 404 (citations omitted).

More importantly, the Court stated, “to require the typical employer to show more than the existence of a seniority system might well undermine the employees’ expectations of consistent, uniform treatment — expectations upon which the seniority system’s benefits depend.” Id. at 404. The Court reasoned that requiring reassignment despite a seniority system “would substitute a complex case-specific ‘accommodation’ decision made by management” — with “its inevitable discretionary elements” — “for the more uniform, impersonal operation of seniority rules.” Id. at 404-05. In light of “the relevant seniority system advantages, and related difficulties that result from violation of seniority rules,” the Court concluded, “it will ordinarily be unreasonable” for an assignment in violation of seniority rules to prevail. Id. at 405.

EEOC v. United Airlines, 693 F.3d 760, is highly relevant to understanding the Barnett decision. The employer there, like MHS, professed to fill vacancies with the best qualified applicant. Seventh Circuit precedent held that “the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant.” EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000). However, when faced with Barnett’s language regarding preferences and making exceptions to disability-neutral rules as a reasonable accommodation, the court of appeals concluded that Humiston-Keeling’s “anti-preference interpretation of the ADA” “did not survive Barnett.” 693 F.3d at 761, 763.

The Seventh Circuit then addressed the Supreme Court’s discussion of seniority. Echoing Barnett, the Seventh Circuit acknowledged that seniority systems occupy a unique position in the law. The court explained that the Barnett defendant prevailed not because of any “automatic exemption” for disability-neutral rules but because of “a much narrower, fact-specific exception based on the hardship that could be imposed on an employer utilizing a seniority system.” United Airlines, 693 F.3d at 764 n.3. That exception, the court concluded, would likely not encompass a best-qualified-selection policy like the employer’s.

MHS argues that the “same reasons espoused in Barnett dictate” that what the company describes as “mandatory reassignment over more qualified candidates fails the reasonable accommodation test.” MSJ at 23. In its view, reassignment would “conflict with the rights of other employees seeking transfer to the same position.” Id. In addition, the policy “provides important employee benefits by creating and fulfilling employee expectations of fair and uniform treatment,” thereby encouraging employees “to invest” in the company, knowing “they will be rewarded when they seek transfer to a vacant position.” Id. at 23-24. Finally, “employee expectation that the company would choose the most qualified would be undermined each time another employee required accommodation based on disability.” Id. at 24.

To the contrary, MHS’s policy is nothing like a seniority system. The most obvious difference is the fact that employees are normally entitled to particular positions under a seniority system. See Foreman, 117 F.3d at 810 (citing cases holding, for example, that collective bargaining agreement prohibits transferring employees to jobs for which they lack seniority). To the extent a senior employee is denied a position for which he is qualified (even if not best qualified), he typically can grieve the action and enforce his right to the position. Under such circumstances, “reassigning” a disabled employee to a position for which he lacks the requisite seniority would be tantamount to “bumping,” something Congress specified is not required. See, e.g., House Report at 63, 1990 U.S.C.C.A.N. at 345.

Reassignment in the face of a best-qualified-selection policy is not comparable. While asserting generally that reassignment would “conflict with the rights of other employees,” MHS identifies no such rights — there are none. Even if an employee were absolutely certain he was the best qualified candidate for a particular position — having somehow gleaned the identity and qualifications of the other applicants, which, unlike under a seniority system, would normally not be public — he would not have a “right” to that position despite his employer’s professed policy. If the employer decided, for example, to select a graduate of the manager’s alma mater or a long-time employee whose job was being eliminated, the self-described “best qualified” employee would have no legal recourse. The same would be true if the employer assigned the job to an employee who, because of a disability, could no longer function effectively in his current position.

As for MHS’s other reasons, it is unclear how employees would be encouraged to stay “knowing they will be rewarded when they seek transfer to a vacant position,” but presumably they would likewise be encouraged if they knew that should they become disabled on the job, the company would not simply fire them but would help them find alternative employment in the company — a form of “job security.” Moreover, as Barnett recognized, employment decisions outside the context of a seniority system are typically discretionary. Evidence indicates that MHS’s decisions are no different. Light duty assignments and intradepartmental transfers are made outside the usual selection process. For vacancies posted on the jobs bank, once the application period ends, the recruiter rejects applicants who do not meet the company’s stated requirements and forwards the others to the hiring manager who makes the final selection. HR has no involvement in that decision, there apparently are no standards the manager must follow, and there is normally no record of why the hiring manager preferred the candidate he did — the manager simply writes “offer” beside the candidate’s name. Other applicants are then notified that they were not selected but are not told why. ROA.654-57; ROA.586-87. It is the antithesis of a “uniform, impersonal” seniority system.

There is a secondary practical distinction between an exception for seniority systems and one for a best-qualified-selection practice. Barnett suggests that, absent some compelling exception like seniority, a request for reassignment should normally be deemed “reasonable on its face, i.e., ordinarily or in the run of cases.” 535 U.S. at 402-03. Only a small percentage of workplaces are governed by seniority systems. A seniority system exception to the general rule is therefore relatively narrow. In contrast, employers — at least those without a seniority system — routinely profess to select the best qualified candidate for any position. An exception for such a practice would therefore effectively swallow the rule. It is unlikely that Congress would have bothered to include “reassignment” among the statutory list of accommodations and explain the reasons for its inclusion if it intended to enable employers so easily to avoid providing the accommodation. See generally United Airlines, 693 F.3d at 764.

C. The district court’s faulty reasoning does not support

summary judgment.

Without addressing the particulars of MHS’s selection process, the district court concluded that reassignment, rather than competitive transfer, was not required after Barnett for two reasons. ROA.795-97 (concluding that court was not persuaded that MHS’s practice “runs afoul of the ADA”). Neither reason justifies summary judgment in MHS’s favor.

First, the court stated, while the Commission cited three cases supporting its position, only one, United Airlines, post-dates Barnett, and, according to the court, it did not decide the issue but simply remanded to the district court to determine “‘whether mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation.’” In contrast, the court pointed out, Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir. 2007), cert. dismissed following settlement, 552 U.S. 1136 (2008), holds that the ADA is not an “affirmative action statute” and does not require reassignment if the accommodation would violate a best-qualified-selection policy. ROA.793-95. The court found Huber more persuasive.

This discussion suggests the court misunderstood the reassignment cases. While the Seventh Circuit did remand United Airlines to allow the district court to make the relevant findings, it first overruled its precedent, EEOC v. Humiston-Keeling, 227 F.3d 1024, which had held that the ADA is not an affirmative action statute and does not require reassignment in the face of a best-qualified selection policy. 693 F.3d at 761 (stating Humiston-Keeling “did not survive Barnett”). The Seventh Circuit added that it doubted the district court would have “great difficulty” finding that “mandatory reassignment” was “ordinarily, in the run of cases, a reasonable accommodation,” despite the employer’s best-qualified-selection policy, because reassignment was “the very accommodation analyzed in Barnett.” 693 F.3d at 764 & n.3.

The district court’s treatment of EEOC’s other two cited cases, Smith v. Midland Brake, 180 F.3d 1154, and Aka v. Washington Hospital Center, 156 F.3d 1284 — both decided en banc — was likewise faulty. Without explaining why it matters, the court dismissed those cases because they predate Barnett. ROA.794. But because they are consistent with Barnett, the cases remain good law and support EEOC’s interpretation of the ADA. Significantly, both decisions are based on the language and purpose of the statute. Smith states, “If no reasonable accommodation can keep the employee in his or her existing job, then the reasonable accommodation may require reassignment to a vacant position so long as the employee is qualified for the job and it does not impose an undue burden on the employer. Anything more, such as requiring the reassigned employee to be the best qualified employee for the vacant job, is judicial gloss unwarranted by the statutory language or its legislative history.” 180 F.3d at 1169. Aka notes that “reassign” means “appoint,” rather than allow to compete, and that the “ADA requires [employers] to reasonably accommodate disabled employees unless they can demonstrate that such reassignment ‘would impose an undue hardship.’” 156 F.3d at 1302-04 (also rejecting argument that preferences are never required).

As for Huber, while it does support the court’s conclusion that reassignment in violation of a best-qualified-selection policy is not required, the case is weak authority at best. Huber “adopt[ed] Humiston-Keeling without analysis, much less an analysis of Humiston-Keeling in the context of Barnett.” United Airlines, 693 F.3d at 764 (citing Huber, 486 F.3d at 483-84). Because Humiston-Keeling has been overruled in light of Barnett, the legal underpinnings of Huber have been removed. Moreover, in the denial for rehearing en banc, three Eighth Circuit judges did not participate and four vigorously dissented, reasoning that “the panel’s opinion renders a statutory provision in the ADA superfluous, overlooks EEOC guidance, and is contrary to the Supreme Court’s admonition in [Barnett], that preferences are a valid means to achieve the statutory goals[.]” 493 F.3d 1002 (2007).

Second, the district court cited and whole-heartedly embraced EEOC v. St. Joseph’s Hospital Center, 842 F.3d 1333 (11th Cir. 2016). See ROA.796-97 (concluding decision “aligns” with pre-Barnett Fifth Circuit authority). St. Joseph’s holds that “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.” Id. at 1345. The decision opines that employers need only provide “alternative employment opportunities” reasonably available under the employer’s existing policies, “the intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities” and affirmative action is not required (citing Huber and Daugherty). Further, by analogy to Barnett’s discussion of seniority, the decision concludes that reassignment in violation of an employer’s best-qualified-selection policy is ordinarily unreasonable: the employer need only “allow” a disabled person to “compete equally with the rest of the world” for jobs. Id. at 1346-47.

This Court should not follow St. Joseph’s because it cannot be reconciled with Barnett. Aside from Huber, discussed above, the decision relies almost exclusively on pre-Barnett authority. More importantly, the decision completely ignores the entire first part of Barnett — the part discussing preferences and exceptions to disability-neutral rules and explicitly rejecting an argument like St. Joseph’s that the ADA “seeks only ‘equal’ treatment of those with disabilities” and “does not ... require an employer to grant preferential treatment.” See 535 U.S. at 397-98. Barnett expressly holds that preferences are required, so employers like St. Joseph’s or MHS may have to make exceptions to their disability-neutral best-qualified-selection policies in order to accommodate disabled employees. The Supreme Court decided all of Barnett; the court of appeals was not free to pick and choose what parts of the decision to consider.

In its only nod to Barnett, St. Joseph’s draws a parallel between Barnett’s discussion of seniority and an employer’s best-qualified-selection policy. Noting Barnett’s holding that reassignment in violation of a seniority system is unreasonable in the run of cases, St. Joseph’s concludes that reassignment in violation of an employer’s best-qualified-selection policy is similarly unreasonable. 842 F.3d at 1345-46. The decision does not analogize to Barnett’s reasons for carving out an exception for seniority systems. Rather, the court simply observes that “employers operate their businesses for profit,” and “[p]assing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.” Id. And, the decision continues, “[u]ndermining a hospital’s best-qualified-[selection] policy imposes substantial costs on the hospital and potentially on patients.” Id. Notably, MHS voiced similar concerns, arguing that “it is essential that the most qualified employee be placed in each and every job” (MSJ at 26), and “[p]lacing minimally qualified candidates into vacant positions ... will compromise safety, privacy, health, and rights.” Id. at 29.

While these concerns are understandable, they are overstated in this context.[3] Disabled employees should be reassigned only if they meet the qualification requirements for the position. As MHS elsewhere acknowledges (MSJ at 21), it is the employer that sets the qualification standards for its jobs. When it hires an employee who meets those standards, the employer does not consider that individual “minimally qualified” (or “unqualified”) but rather “qualified,” fully capable of doing the job well. Indeed, if the employer believed that employees who satisfy the company’s own standards “will compromise safety, privacy, health, and rights” (id. at 28-29), it presumably would raise its standards, as it is free to do.

Furthermore, as noted above, evidence indicates that hiring managers at MHS — the persons delegated to fill vacancies listed on the jobs bank — may choose whichever qualified candidate they prefer. There is no review, or guidance from HR, or even any record of why that candidate, and not another, was selected. Nor is there any evidence that employees assigned to light duty are the “most qualified” for those jobs, despite MHS’s stated concerns about medical error, privacy, health, and rights.[4]

Finally, consistent with Barnett, where an employer like MHS purports to have a disability-neutral policy, including a best-qualified-selection policy, the employer is free to apply its policy in the vast majority of cases. It is only where no accommodation will allow a disabled current employee to continue doing his job, the employee is fully qualified for a vacant equivalent position, and placing the employee in the job would not violate a seniority system or result in undue hardship, that the employer would be required to make an exception to its policy in order to reasonably accommodate the individual and enable him or her to remain a productive employee in the workplace. That is what the plain language of the statute provides and what Congress intended when it specified that “reassignment” could constitute a reasonable accommodation. The decision rejecting the Commission’s policy claim should therefore be reversed.

II. The District Court Erred In Granting Summary Judgment to MHS on EEOC’s Claim Regarding Adrianna Cook.

The Commission alleges that MHS violated its duty to make reasonable accommodation by failing to reassign Cook to the scheduling coordinator position, a job for which she was admittedly qualified, once it became clear that she could not return to her position as a PCT even with accommodation. The district court rejected this claim on three grounds: (1) Cook did not treat reassignment as an accommodation of last resort, as recommended in EEOC’s Guidance, (2) Cook was not qualified for the job and never provided a release, and (3) Cook was responsible for the breakdown of the interactive process. None of these reasons justifies summary judgment in MHS’s favor.

The first reason is easily dismissed. The court opined that Cook should have resumed working in her light duty position as a pharmacy tech or sought, as an accommodation, elimination of the duties of the PCT job that she could not do. ROA.764. Notably, there is no evidence a permanent pharmacy position existed, or, if it did, that MHS offered it to Cook; an employer need not convert a temporary light duty position into a permanent position as a reasonable accommodation. See, e.g., Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996). In addition, MHS would almost certainly take the position that the strenuous PCT duties that Cook could not do, such as lifting patients, are essential functions of the job. Eliminating essential functions is not a reasonable accommodation. Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999).

The second reason likewise does not justify summary judgment for MHS. Focusing on the July 2 date of her scheduling coordinator application, the court found no evidence that Cook was qualified for the job and could attend work on that date. ROA.755-58. To the contrary, however, in his June 29 report, Dr. Ozanne imposed lifting and other restrictions and stated that Cook should never return to the kind of patient care work she had been doing. ROA.456-57. This strongly suggests she could do less strenuous work consistent with those restrictions, such as the scheduling coordinator position. Whether MHS ever saw this report is beside the point. The report supports a finding that she was qualified, and there is no evidence MHS even looked at her application on July 2, let alone made decisions about her application on or around that date. See, e.g., Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417-18 (5th Cir. 2017) (issue is qualifications at the “time of the adverse employment action”) (citation omitted).

The district court expressed concern that Cook never indicated when she intended to return from leave, so MHS was “in the dark” as to her plans. ROA.761. A jury could find, however, that MHS had sufficient information to ascertain Cook’s plans. The company knew that Cook had applied for a vacant clerical job unlike her patient care position. ROA.585. The company also knew that on July 12, Cook’s doctor submitted a note changing his assessment from “no work” to no patient care work, strongly suggesting that she could do sedentary work. ROA.549.

Moreover, there is evidence that MHS was informed of Cook’s FMLA leave requests (ROA.327); her allotted twelve weeks expired on July 15, so the company could have inferred that she would be returning around that time. And, just days earlier, the STD benefits administrator, Lincoln Financial, expressly asked whether the company could accommodate Cook’s restrictions; although the court characterized the email as “inquiring about potential accommodations should Cook be released to return to work” (ROA.759) (emphasis added), a jury would not need to agree with that characterization. The email, like the rest of the email chain it initiated, says nothing about a release, and other emails in the chain refer to Cook’s job accommodations “paperwork” and the fact that she would be “returning from a personal (FMLA/STD) medical leave.” ROA.461-64. And because the restrictions Lincoln Financial identified parallel those in Dr. Ozanne’s June 29 report, the jury might well infer that Lincoln Financial had access to the report. Thus, a jury could find that Lincoln Financial was informing MHS that Cook would be returning and would need accommodation consistent with her restrictions.

Furthermore, to the extent MHS was unaware of Cook’s abilities and plans, a jury could find that that is because the company failed to engage in the interactive process. In this Circuit and elsewhere, it is the employer’s duty to initiate the interactive process, and that duty is triggered when the disabled employee requests accommodation. See EEOC v. LHC Grp., 773 F.3d 688, 699-700 (5th Cir. 2014) (“Once an employee presents a request for an accommodation, the employer is required to engage in [an] interactive process[.]”) (citation omitted); Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735-36 (5th Cir. 1999) (once an employee requests accommodation, the employer should “initiate an informal interactive process”); see also 29 C.F.R. §1630.2(o)(3) (employer should “initiate an informal, interactive process” to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations”); 29 C.F.R. App, Pt. 1630.9 (“Once an individual with a disability has requested ... accommodation, the employer must make a reasonable effort to determine the appropriate accommodation.”). The purpose of the process is to enable the parties to exchange information about the employee’s limitations and explore possible solutions so that “together” they can “determine what reasonable accommodations might be available.” LHC Group, 773 F.3d at 699; see also Loulseged, 178 F.3d at 735-36 (parties should “craft a reasonable accommodation”); see also 29 C.F.R. App. Pt.1630.9 (parties should adopt “problem-solving approach”).

That is not what happened here. Even treating the August 7 personal leave letter as a “contact,” a jury could easily find it too little too late. Cook began requesting accommodation in Spring 2012, but MHS made no attempt to assist her or even to communicate with her (aside from suggesting that she resign) for over four months. At a minimum, the July doctor’s report, coupled with the Lincoln Financial job accommodation email and the end of Cook’s twelve weeks of FMLA leave, should have caused MHS to contact Cook or check her file. Either would have revealed that she had applied for a clerical position for which she was qualified and wanted to return to work, albeit not as a PCT. Thus, had MHS complied with its ADA duty to engage in the interactive process, the company would have known about Cook’s limitations and abilities, her “skill set” — which Barrett admittedly did not know when she summarily decided against returning Cook to work — and her interest and background in clerical work, as well as when she could return. To the extent MHS was “in the dark” about her plans, therefore, it was because the company did not comply with its obligation to ask.

As for the release (ROA.756-62), a jury could easily find that this was a post-hoc explanation having nothing to do with why Cook was not reasonably accommodated. There is no contemporaneous evidence that MHS gave any thought to a “release.” The unpaid leave letter does not state that Cook would need to provide a release if she were able to return to work after taking leave. ROA.466. A jury might well wonder why, if a release was so crucial, no one mentioned it to Cook.

Moreover, MHS acknowledges that it forwarded Cook’s application for the scheduling coordinator position to the hiring manager (17-10539.584-85), with no mention of a release; the rejection letter specified that her application would be “kept on file for 90 days” — again with no mention of any need for a release. ROA.460. And although Barrett attested in her deposition that an injured employee must provide a release (ROA.623), the email chain does not mention a release; Barrett advises against returning Cook to the PCT job for safety reasons — there is no discussion of whether she had obtained a release. ROA.461-62 (noting, e.g., that Cook “will be returning from a personal (FMLA/STD) medical leave”).

It is true that qualifications is part of coverage, before the question of discrimination is even reached. See 42 U.S.C. §12111(8). In light of the evidence, however, a jury could find that Cook was qualified for the scheduling coordinator position even without a formal release. For coverage purposes, the question is whether she could do the essential functions of the job. See id. At a minimum, MHS’s decision to forward Cook’s application to the hiring manager, coupled with the doctor’s report, strongly indicates that she could do the essential functions of the job.

Furthermore, as Dr. Ozanne’s July letter makes clear (ROA.549), the only accommodation that would have worked was reassignment, and MHS takes the position that it need not offer reassignment but may instead require disabled employees needing accommodation to compete for vacant positions with other employees. Because the company would almost certainly never have reassigned Cook to another job as an accommodation, the existence or non-existence of a release was irrelevant to whether she would be accommodated.

The district court also held that Cook was not entitled to a reasonable accommodation because it was her fault that the interactive process failed. ROA.762 n.8. While its reasoning is unclear, it appears that the court considered MHS’s August 7 letter to Cook offering her six months of unpaid leave to count as initiating the interactive process. Since Cook did not respond, the court charged her with causing the breakdown in the process.

A jury, however, would not have to view the facts that way. As noted above, MHS had an obligation to initiate the interactive process in July, if not before, in an effort to determine what reasonable accommodations might be available. It failed to do so. Instead, in June, Melonie Jackson told Cook’s supervisor, with Cook listening, that there was nothing Cook could do, so she should “just resign.” ROA.571-72. Moreover, it is undisputed that MHS made no attempt to communicate with Cook to determine what, if any, accommodation she would need. This is underscored by Barrett’s admission that she had no idea what Cook’s “skill set” was when she decided against accommodation. ROA.624. In that context, there is, at a minimum, an issue of fact whether merely sending Cook a letter offering unpaid leave several months after she first requested accommodation, when what she wanted and needed was another job, can be considered initiating a flexible interactive discussion aimed at determining an appropriate accommodation — unless unpaid leave was an appropriate accommodation. A jury could find that it was not. The only evidence — the July 12 doctor’s note and June 29 report — is that additional leave would serve no purpose because Cook was physically unable to return to work as a PCT. But Cook could do clerical work, and a vacancy for which she was qualified existed. The company simply chose not to consider reassignment.[5]

Finally, MHS argued below that the offer of unpaid personal leave was a reasonable accommodation and, even though Cook preferred reassignment, an employee is not entitled to the accommodation of her choice. MSJ at 15-18. That is incorrect. A reasonable accommodation must be “effective”; “by its terms,” it must “presently, or in the immediate future, enable[] the employee to perform the essential functions of the job in question.” Rogers v. Int’l Marine Terms., 87 F.3d 755, 759-60 (5th Cir. 1996); accord 42 U.S.C. §12111. Leave may be appropriate if it is likely to accomplish that purpose. Moss, 851 F.3d at 417-19. But, as noted above, even a glance at the medical evidence would have revealed that no amount of leave would enable Cook to return to her job as a PCT. Reassignment was not, as MHS suggested, merely Cook’s “preferred” accommodation; it was the only effective accommodation. An employer cannot insist that an employee take leave merely to ease her out of the workforce when reassignment would keep her in the workforce.

In short, “[c]onsidered together,” the facts “lead to the inescapable conclusion that the court below credited the evidence of the party seeking summary judgment and failed properly to acknowledge key evidence offered by the party opposing that motion.” Tolan v. Cotton, 134 S.Ct. 1861, 1867 (2014). In so doing, the court “neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.” Id. at 1868. The decision rejecting the Commission’s claim regarding Cook should therefore be reversed.

CONCLUSION

This Court should reverse summary judgment on EEOC’s policy claim and its claim regarding Cook and remand.

Respectfully submitted,

JAMES L. LEE EQUAL EMPLOYMENT OPPORTUNITY

Deputy General Counsel COMMISSION

JENNIFER S. GOLDSTEIN Office of General Counsel

Associate General Counsel 131 M Street, N.E., 5th Floor

Washington, DC 20507

ANNE NOEL OCCHIALINO (202) 663-4721

Senior Appellate Attorney fax: (202) 663-7090

barbara.sloan@eeoc.gov

BARBARA L. SLOAN

Attorney

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 12, 947 words, from the Statement of Jurisdiction through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2010 with Times New Roman 14-point font.

s/ Barbara L. Sloan

Attorney for Equal Employment

Opportunity Commission

Dated: August 1, 2017

[1] The plaintiff in Smith was denied reassignment outside his department after he developed severe chronic reactions to the chemicals used in his department. 180 F.3d at 1160. The en banc Tenth Circuit reversed the summary judgment in favor of the employer.

Aka involved a disabled orderly with twenty years seniority and a Master’s degree in business and public administration, who, on the advice of the Hospital’s HR department, applied unsuccessfully for a clerical position; the Hospital contended that the successful candidate was better qualified. See 156 F.3d at 1286-87. The en banc D.C. Circuit reversed the summary judgment in favor of the employer.

[2] The Supreme Court recently reaffirmed in a Title VII religion case that exceptions to facially-neutral rules may be required as a reasonable accommodation. See EEOC v. Abercrombie & Fitch Stores, 135 S.Ct. 2028, 2034 (2015) (“Title VII requires otherwise-neutral policies to give way to the need for a [religious] accommodation.”). The Court explained that while an employer is “surely entitled to have, for example, a no-headgear policy” as part of its generally applicable dress code, “when a [Muslim] applicant requires an accommodation” — to wear a headscarf, or hijab — “as an ‘aspec[t] of religious ... practice,’ it is no response that the subsequent ‘fail[ure] ... to hire’ was due to an otherwise-neutral policy.” Id. (citing 42 U.S.C. §2000e(j)). As under the ADA, therefore, preferences may be required.

[3] Safety concerns are not unique to St. Joseph’s or MHS. The employer in Aka was also a hospital and the employers in Barnett and United Airlines were airlines.

[4] In any event, the ADA provides defenses — undue hardship (42 U.S.C. §12111(10)) and direct threat (42 U.S.C. §12111(3)) — in the unusual case when the company discovers that an individual meeting its standards would in fact compromise the company’s ability to prevent medical error. This Court need not create another defense.

[5] MHS may argue that leave was reasonable because it would give Cook time to find another job. However, she could get the leave only by certifying that she could not work — which was not true, and she would have only thirty days in which to “secure” another position; otherwise she would be terminated. ROA.466 (letter).