Rehrs v. Iams Co. (8th Cir.) Brief as amicus Apr. 19, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ___________________________________________________ No. 06-1609 ____________________________________________________ MURRAY REHRS, Plaintiff-Appellant, v. THE IAMS COMPANY and PROCTOR AND GAMBLE, INC., Defendants-Appellees. _________________________________________________________________ On Appeal from the United States District Court for the District of Nebraska __________________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL _________________________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD ` Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731(w); (202) 663-7090 (fax) TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .1 1. Nature of the Case. . . . . . . . . . . . . . . . . . .1 2. Statement of the Facts. . . . . . . . . . . . . . . . .1 3. District Court Decision . . . . . . . . . . . . . . . .5 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .6 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 I. THE DISTRICT COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF P&G ON THE ESSENTIAL FUNCTIONS ISSUE. . . . . . . . . . . . . . . . . . . .7 II. REHRS PROFFERED ENOUGH EVIDENCE TO ESTABLISH THAT A FIXED DAYTIME SCHEDULE WAS A REASONABLE ACCOMMODATION. . . . . . . . . . . . . . . . . . . . . . . . . 10 III. P&G FAILED TO SATISFY ITS BURDEN OF PROVING THAT EXCUSING REHRS FROM ROTATING SHIFTS WAS NOT A FEASIBLE ACCOMMODATION OR THAT IT WOULD CAUSE AN UNDUE HARDSHIP . . . . . . . . . . . . . . . . . . . . . . . . 12 IV. UNDER THE ADA, P&G HAD A DUTY TO CONSIDER REASSIGNMENT OF REHRS AS AN ACCOMMODATION. . . . . . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES CASES Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995). . . . . . . . . .7, 11, 12, 14 Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011 (8th Cir. 2000) . . . . . . . . . . . . 14, 15 Deane v. Pocono Med. Ctr., 142 F.3d 138 (3d Cir. 1998) (en banc) . . . . . . . . . . .8 EEOC v. Union Carbide Chem. & Plastics, 1995 WL 495910, 4 A.D. Cases 1409 (E.D. La. 1995) . . . . .8 McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994) . . . . . . . . . . . . . . 16 Meyers v. Nebraska Health and Human Servs., 324 F.3d 655 (8th Cir. 2003). . . . . . . . . . . . . . . 16 Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir.1999) . . . . . . . . . . . . . . 15 Rehrs v. The Iams Co., 2006 WL 296591 (D. Neb. Feb. 6, 2006) . . . . . . .2, passim Turner v. Hershey Chocolate USA, 440 F.3d 604 (3d Cir. 2006) . . . . . . . . . . . . . . . .7 US Airways v. Barnett, 535 U.S. 391 (2002) . . . . . . . . . . . . . . . . . 13, 14 Wood v. County of Alameda, 5 A.D. Cas. (BNA) 173 (N.D. Cal. 1995). . . . . . . . . . 17 STATUTORY PROVISIONS, REGULATIONS, AND OTHER AUTHORITY Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.. . . . . . . . . . . . . . . . .1 42 U.S.C. § 12111(9)(B) . . . . . . . . . . . . . . . . . 14 EEOC Regulations to Implement the Equal Employment Provisions of the ADA, 29 C.F.R. § 1630.2(n)(2). . . . . . . . . . . . . . . . . .8 29 C.F.R. § 1630.2(n)(3)(vi-vii). . . . . . . . . . . . . 10 29 C.F.R. § 1630.2(p)(1). . . . . . . . . . . . . . . . . 12 29 C.F.R. § 1630, app. 1630.2(o). . . . . . . . . . . . . 15 H.R. Rep. No. 101-485(II) (1990), reprinted in 1990 U.S.C.C.A.N. 30314 EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, N-915.002 (Oct. 17, 2002). . . . . . . . . . . . . . 8, 9, 10, 17 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC" or "Commission") is the agency charged with the interpretation and enforcement of Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), and other federal anti-discrimination statutes. This appeal raises important issues regarding what constitutes an "essential function" of a job position and what is the employer's duty to accommodate an employee who becomes unable to comply with a workplace scheduling policy due to his disability. Because of the importance of these issues to the enforcement of the ADA, the Commission offers its views to the Court. STATEMENT OF THE CASE 1. Nature of the Case This case was brought as a private ADA action by Murray Rehrs against The Iams Company and its parent, Proctor and Gamble, Inc. (collectively P&G). Rehrs appeals from the district court's grant of summary judgment in favor of P&G. 2. Statement of the Facts Plaintiff Murray Rehrs is a warehouse technician responsible for making, packing and shipping dog food products for P&G. He has Type I insulin- dependent diabetes and has developed many complications including "diabetic retinopathy, coronary artery disease, peripheral vascular disease, and erectile dysfunction." Rehrs v. The Iams Co., 2006 WL 296591, at *3 (D. Neb. Feb. 6, 2006) ("Dec."). After suffering a heart attack and undergoing bypass surgery in February 2002, Rehrs had trouble controlling his blood sugar and was required to use an insulin pump. Dec. at *3. At his request, he was placed on short-term disability leave because of his heart condition. Id. at *7 ¶ 17. He returned to work in late July/early August of 2003 and asked that he not be required to work rotating shifts because of his diabetes. Id. at *7 ¶ 18. The record is silent as to whether P&G honored this request or whether Rehrs worked the rotating shifts. In September 2003, Rehrs' doctor submitted a letter to P&G requesting that Rehrs be placed on a fixed daytime schedule because his diabetes had become difficult to control. Dec. at *7 ¶ 19 & n.11. The doctor believed a routine or fixed schedule would enhance his efforts to control Rehrs' blood sugar. Id. P&G granted the doctor's request and placed Rehrs on an 8-hour daytime schedule for 60 days. Id. at *7 ¶ 20. In the interim, P&G contacted Rehrs' doctor to clarify whether the requested accommodation was intended to be temporary or permanent. Id. at *7 ¶ 21. When the doctor stated that it needed to be permanent, P&G informed Rehrs that it could not accommodate him because rotating shifts was an essential function of his technician job. Id. In December 2003, Rehrs' temporary assignment to the day shift ended. P&G encouraged Rehrs to apply for a Sanitation position which was a straight day shift job that might last 6-9 months. Rehrs declined the job because he did not want to clean toilets. Id. at *7 ¶ 23. Instead, he applied for temporary partial disability leave. Id. at *7 ¶ 24. While Rehrs was on partial disability leave, P&G sent him notices about vacant fixed schedule day shift jobs. Dec. at *7 ¶ 25. Rehrs applied for two positions. Id. at *7 ¶ 26. He was not selected for one job because he lacked experience and he withdrew his application from the other job, citing lack of interest. Id. at *7-*8 ¶¶ 27- 28. Rehrs remained on partial disability leave until February 2005, when he was granted total disability leave and benefits and declared totally incapable of working. Id. at *2. Rehrs filed suit alleging that P&G violated the ADA and the Nebraska Fair Employment Practices Act when it failed to grant his requested accommodation of placing him on a fixed day shift schedule so that he could better control his diabetes. Among other things, Rehrs argued that shift rotation is not an essential function of the job. As evidence, Rehrs pointed to the fact that the Nebraska plant operated for a number of years without rotating shifts before it was acquired by P&G. Dec. at *8. He also offered the testimony of two coworkers, Bill Rudy and Randy Peard. Id. Rudy testified that the essential functions of a warehouse worker were to "store, retrieve, relocate, inventory, log, load (and unload) units of pet food products, inspect quality and quantity of pet food products, pull trailers in and out of the loading dock areas, provide truck drivers with their bills of lading and generally maintain a clean warehouse." Plaintiff's Summary Judgment ("PSJ") Br. at 8-9. He averred that these same functions were performed on both the day and nights shifts, and thus shift rotation was not an essential function of the job. Id. at 9. Randy Peard corroborated Rudy's statement because he testified that he has worked at the Nebraska facility since 1994, and that prior to P&G's purchase, it operated the warehouse without rotating shifts. Id. at 6. Peard further testified that in March 2005, when P&G outsourced its warehouse functions to another company called Excel, Excel performed the warehouse tasks without rotating shifts. Id. at 6-7; Dec. at *8. Finally, Rehrs noted that P&G's HR Director admitted the "core work" or "core responsibilities" of the warehouse job stayed the same after P&G's acquisition and after shift rotations were implemented. Id. at 8. In rebuttal, P&G contended that shift rotation was an essential function of the warehouse job during the relevant period because all P&G subsidiaries operated under a High Performance Work System (HPWS), and shift rotation is a component of this system. Dec. at *5 ¶ 10 (Lindsey Aff.). Specifically, HPWS changed the operational shifts from three 8-hour shifts to two 12-hour shifts. Dec. at *7 ¶¶ 8-11 (Shanaman Aff.). These new rotating shifts ran from 6 am-6 pm and 6 pm-6 am and employees rotated every two weeks. PSJ Br. at 2. The only exceptions P&G made to this scheme were for administrative and management personnel who worked exclusively on the day shift and technicians who worked on special "off line" assignments on a temporary basis and then returned to their core jobs with rotating shift responsibilities. Dec. at *5 ¶ 17. According to Michael Lindsey, P&G's global HPWS instructor, "[o]ne key advantage to rotating shifts is that it gives all employees, including employees who would work exclusively on night shift, exposure to management employees, more resources, suppliers, and outside customers." Id. at * 5 ¶ 12. It is undisputed that after HPWS was implemented and shift rotation went into effect, Rehrs worked 12-hour sessions and rotated shifts every two weeks until his heart attack and bypass surgery in February 2002. Dec. at *5 ¶ 17. It is also undisputed that Rehrs has not identified any warehouse technician who has been permitted to avoid permanently shift rotations during his tenure with P&G. Indeed, Michael Lindsey, P&G's global HPWS instructor, testified that, even though requests for permanent reassignment from working rotating shifts had been made by technicians, none had been granted. Id. at *6 ¶ 22. 3. District Court Decision After reviewing the parties' evidence, the district court concluded that Rehrs had presented enough evidence to survive summary judgment on the issue of whether he was an individual with a disability. Dec. at *3. However, based on P&G's contention that rotating shifts was an essential function of the warehouse job because all production-level employees were required to work rotating shifts as a member of the team, the district court concluded that Rehrs was not a "qualified" individual with a disability and granted P&G's motion for summary judgment. Id. at *4 & *8. In addition, the court stated that, since rotating shifts is an essential function, Rehrs' requested accommodation of being exempt from rotating shifts was "unreasonable per se." Id. at *4<1>. On February 23, 2006, Rehrs filed an appeal. STATEMENT OF THE ISSUES 1. Whether the district court erred as a matter of law when it determined that rotating shifts is an essential function of the warehouse technician's job in this case. 2. Whether Rehrs proffered sufficient evidence to demonstrate that excusing him from rotating shifts was a reasonable accommodation. 3. Whether P&G met its burden of demonstrating that exempting Rehrs from rotating shifts posed an undue hardship. 4. Whether P&G met its statutory obligation to consider reassignment in the event shift rotation is an essential function or placement on a fixed schedule is not a feasible accommodation. ARGUMENT I. THE DISTRICT COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF P&G ON THE ESSENTIAL FUNCTIONS ISSUE A disabled plaintiff may establish a prima facie case under the ADA if he can show that he can perform the essential functions of the job with reasonable accommodation and that the employer refused to make such an accommodation. Here, the district court properly determined that Rehrs could survive summary judgment on the question of whether his diabetes is a disability, Dec. at *3. Thus, the central issue the court addressed is whether shift rotation is an essential function of the warehouse technician position at P&G. An employer who disputes the plaintiff's claim that he can perform the essential functions bears the burden of establishing what are the essential functions and that it is unable to accommodate the employee. Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112-13 (8th Cir. 1995). Courts have recognized that whether a function is essential is generally a question of fact to be resolved by a jury. See, e.g., Turner v. Hershey Chocolate USA, 440 F.3d 604, 613 (3d Cir. 2006) (leaning toward finding that job rotation of duties is not an essential function of an inspector job, but declining to resolve question, "lest we run afoul of our own directive to the district courts that these issues are for the jury to decide"); Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir. 1998) (en banc) ("whether a particular function is essential 'is a factual determination that must be made on a case by case basis [based upon] all relevant evidence'"); EEOC v. Union Carbide Chem. & Plastics, 1995 WL 495910 *3, 4 A.D. Cases 1409 (E.D. La. 1995) ("[w]hether working rotating shifts is an "essential function" of the job of lab technician at the Star plant or merely a convenient condition of employment is a fact specific issue which is properly determined by the trier of fact after a trial on the merits and not by the Court on a motion for summary judgment"). In this case, however, the district court erred as a matter of law in granting summary judgment because P&G did not demonstrate that the ability to work rotating shifts is an essential function of the warehouse job since it is neither a task nor a duty, and the actual duties performed were the same on either shift. As the Commission regulations make clear, essential functions are duties to be performed. See 29 C.F.R. § 1630.2(n)(2); also see EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship, N-915.002 at 31 n.65 (Oct. 17, 2002) (explaining that attendance should not be characterized as an "essential function" because it is not a duty to be performed). In this case, uncontroverted evidence shows that the fundamental job duties of Rehrs' warehouse job were to "store, retrieve, relocate, inventory, log, load (and unload) units of pet food products, inspect quality and quantity of pet food products, pull trailers in and out of the loading dock areas, provide truck drivers with their bills of lading and generally maintain a clean warehouse." PSJ Br. at 8-9. These job duties were identical on the day and night shifts, and by P&G's own admission, remained the same whether its technicians worked fixed or rotating shifts. Id. at 8. In addition, these same warehouse duties were performed by Iam Company on permanent fixed shift schedules before it was acquired by P&G as well as after P&G outsourced the warehouse operations to Excel Company, which operated on straight-shift schedules. Id. at 9; Dec. at *8. Further, Congress could not have intended the timing of when job duties are performed ordinarily to constitute an "essential function." The ADA specifies that schedule modifications can be a reasonable accommodation and an employer is not required to remove or eliminate an essential function as an accommodation. See 42 U.S.C. § 12111(9)(B) (job restructuring, part-time or modified work schedules); also see EEOC Guidance at 30-31, answer to Q.22 ("[a] modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave). In some cases, of course, when tasks are performed is critical to the nature of the job itself (e.g., being a night watchman or delivering the morning newspaper) and requests to do the job at a different time could not be accommodated. Id. at 31. But, in this case, it is clear that being able to rotate from one to the other time period is not in and of itself a function or task of the job or essential to the performance of the job's duties. Thus, the district court erred as a matter of law in granting summary judgment for P&G and that ruling should be reversed.<2> II. REHRS PROFFERED ENOUGH EVIDENCE TO ESTABLISH THAT A FIXED DAYTIME SCHEDULE WAS A REASONABLE ACCOMMODATION After deciding that being able to work rotating shifts was an essential function, the district court determined that Rehrs' request to work a fixed shift was unreasonable per se. Dec. at *4. That conclusion is wrong. For summary judgment purposes, Rehrs presented sufficient evidence from which a rational jury could have concluded that exempting Rehrs from rotating shifts with his team and permitting him to work a fixed daytime shift is a reasonable accommodation under the ADA. EEOC Guidance at 33, answer to Q.24 ("It is a reasonable accommodation to modify a workplace policy when necessitated by an individual's disability-related limitations, absent undue hardship[;] [b]ut, reasonable accommodation only requires that the employer modify the policy for an employee who requires such action because of a disability; therefore, the employer may continue to apply the policy to all other employees"). A plaintiff has the burden of making a facial showing that a reasonable accommodation is possible. Benson, 62 F.3d at 1112. Here, evidence reveals that the core responsibilities of the warehouse job have never changed whether the shifts were fixed or rotating. See PSJ Br. at 8. Rehrs' warehouse job had been performed first by Iam employees, then Excel employees on straight-shift schedules. Id. at 9; Dec. at *8. Rehrs himself performed the duties of the warehouse technician job even after he was temporarily placed on a fixed day shift following his bypass surgery, and P&G has never asserted that operations were disrupted or his team members were unduly burdened during this period. Further, P&G testified that it has permitted some technicians to work "off line" assignments on straight shifts, albeit on a temporary basis, and that there is "flexibility in certain elements of HPWS." Dec. at * 5 ¶ 20. Moreover, P&G claims that HPWS is set up in a manner that "at any time a technician can be moved from department to department because of the absence of another technician or a work crisis." Dec. at *6, ¶¶ 8-11. Therefore, viewed in the light most favorable to Rehrs, a reasonable jury could consider this evidence sufficient to support a finding that permanently excusing Rehrs from rotating shifts is a feasible accommodation. III. P&G FAILED TO SATISFY ITS BURDEN OF PROVING THAT EXCUSING REHRS FROM ROTATING SHIFTS WAS NOT A FEASIBLE ACCOMMODATION OR THAT IT WOULD CAUSE AN UNDUE HARDSHIP A plaintiff "at all times retains the burden of persuading the trier of fact that he has been the victim of illegal discrimination due to his disability." Benson, 62 F.3d at 1112. However, once a plaintiff has made a facial showing that reasonable accommodation is possible, the burden of production shifts to the employer to present evidence that it is unable to accommodate the employee either because no such accommodation is feasible or it presents an undue hardship. Id. at 1114. Under the ADA, undue hardship means "significant difficulty or expense incurred by a covered entity." 29 C.F.R. § 1630.2(p)(1). Here, P&G has maintained that shift rotation is essential to its company operations because it improved production and permitted employees to interface with management. Dec. at *5 ¶¶ 6-13 (Lindsey Aff.). Further, P&G has averred that "[e]liminating rotating shifts would harm both the company from a production standpoint and employees from a development and career advance standpoint," Dec. at *5 ¶ 13. Lastly, P&G has asserted that "[a]llowing a team member to remain on a fixed shift would undermine the team concept and, correspondingly, the goal of the team becoming self-sustaining and increasing productivity." Id. at *5 ¶ 16. This corporate philosophy or managerial preference fails to address factually why a shift rotation exemption would be significantly disruptive or expensive if P&G allowed one person to work straight day shifts. In the Commission's view, P&G's shift rotation policy is simply a workplace rule, and even if it is a neutral rule applied to all technicians, P&G has offered no evidence that modifying the rule would result in more than a relatively minor disruption or inconvenience. Indeed, Rehrs has not asked P&G to eliminate shift rotations entirely, and a single individual's need to work a straight shift, without more, cannot be viewed as an undue burden as a matter of law. As the Supreme Court noted in Barnett, "[m]any employers will have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability" and "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." US Airways v. Barnett, 535 U.S. 391, 397-98 (2002); see also EEOC Guidance at 30-31, answer to Q.22 (an "employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees"). On the current record, P&G has not provided evidence of any significant hardship or disruption to the company or its operations if it accommodated Rehrs beyond the general observations about the value of rotating shifts. Since P&G has not met its burden of showing that the requested accommodation is not possible or would be an undue hardship, Benson, 62 F.3d at 1114, the grant of summary judgment should not be upheld on that basis. IV. UNDER THE ADA, P&G HAD A DUTY TO CONSIDER REASSIGNMENT OF REHRS AS AN ACCOMMODATION Finally, even if P&G were able to prove that the accommodation of working straight day shifts is not feasible or that shift rotation is an essential function of the warehouse job, P&G still would have an obligation to consider reassigning Rehrs to a vacant position. See 42 U.S.C. §12111(9)(B); Barnett, 535 U.S. at 396 (a reasonable accommodation may include reassignment to a vacant position); EEOC Guidance at 34-37 (same). Reassignment allows an otherwise qualified disabled employee who can no longer perform the essential functions of his current job to be transferred to another vacant job for which the person is qualified so as to "prevent the employee from being out of work and [the] employer from losing a valuable worker." Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1017 (8th Cir. 2000) (citing H.R.Rep. No. 101-485(II), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345). Moreover, even though the employee is not entitled to the job of his choice, the employer cannot limit or discriminate against the disabled employee by reassigning him to a less desirable position unless no equivalent positions are available. See 29 C.F.R. §1630, app. 1630.2(o) at 357; Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999) ("Reassignment does not constitute reasonable accommodation . . . where a position comparable to the employee's former placement is available, but the employee instead is assigned to a position that would involve a significant diminution in salary, benefits, seniority or other advantages that she possessed in her former job."). Instead, employers "should reassign the individual to an equivalent position, in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time." 29 C.F.R. §1630, app. 1630.2(o) at 357. Here, rather than offering Rehrs a reassignment to a vacant comparable position for which he was qualified, evidence in the record reveals that to accommodate his disability, P&G encouraged Rehrs to apply for a janitorial position that would have allowed him to work a fixed day shift schedule for six to nine months. Dec. at *7 ¶ 23. Rehrs, however, declined the job because he did not want to clean toilets. Id. P&G's gesture falls short of its accommodation duty. While a disabled individual is not entitled to an accommodation of his choice, Cravens, 214 F.3d at 1019 (under ADA, employer is not obligated to provide the accommodation requested or preferred by the employee), he also is not required to take a menial job, such as cleaning toilets, if such a job entails a significant departure from the employee's skills and qualifications. See Meyers v. Nebraska Health and Human Servs., 324 F.3d 655, 660 (8th Cir. 2003) ("evidence of a considerable downward shift in skill level required to perform her new job responsibilities, coupled with evidence of a work load reduced to the degree supervisors had to find other ‘tasks' to keep her busy, are sufficient to support a finding Meyers' reassignment was a significant and material change in her employment conditions"); McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994) (Title VII case in which a secretary who was laterally transferred to a clerk-typist position with no loss in pay demonstrated adverse employment action where the new position entailed fewer responsibilities, more menial tasks, and a lesser opportunity for salary increases in the future). Although as a warehouse technician, Rehrs was required to maintain a clean warehouse, his primary duties extended beyond cleaning and even included administrative functions. See PSJ Br. at Br. at 8-9 (essential functions of a warehouse worker were to "store, retrieve, relocate, inventory, log, load (and unload) units of pet food products, inspect quality and quantity of pet food products, pull trailers in and out of the loading dock areas, provide truck drivers with their bills of lading and generally maintain a clean warehouse") (emphasis added). Hence, the sanitation job was not equivalent in status or responsibilities to the warehouse technician position, nor was it permanent. Similarly, even though P&G sent job notices to Rehrs while he was on disability leave, these efforts did not constitute reassignment. Inviting a person to compete for a job, rather than placing him in the position, is not a reassignment. See EEOC Guidance at 41, answer to Q.29 ("[r]eassignment means that the employee gets the vacant position if s/he is qualified for it") & n.90 (citing Wood v. County of Alameda, 5 A.D. Cas. (BNA) 173, 184 (N.D. Cal. 1995) (when an employee could no longer perform a job because of a disability, she was entitled to reassignment to a vacant position, not simply an opportunity to "compete")). Thus, affirmance of summary judgment on this ground would be inappropriate.<3> CONCLUSION This Court should reverse the district court's summary judgment in favor of P&G. Rotating shifts is not an essential function of Rehrs' job and P&G failed to produce any evidence to establish that placing Rehrs on a fixed daytime schedule would be unreasonable or an undue hardship. Moreover, P&G failed to consider the option of reassignment. Accordingly, we urge this Court to reverse the summary judgment and remand this case for trial. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________________ PAULA R. BRUNER Attorney Equal Employment Opportunity Commission 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 (w); (202) 663-7090 (fax) April 19, 2006 CERTIFICATE OF COMPLIANCE Pursuant to 8th Cir. R. 28A(c) and Fed. R. App. Proc. 32(a)(7(C), the undersigned certifies that the brief complied with the type-volume limitations. 1. Exclusive of the exempted portions in Fed. R. App. Proc. 32(a)(7)(B)(iii), the brief contains 4,269 words. 2. The brief was prepared in proportionally spaced typeface using Microsoft Word 2003, Times Roman, 14 point. 3. At the Court's request, the undersigned has provided an electronic PDF version of the brief on disk. The disk has been scanned and is virus free. 4. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Fed. R. App. Proc. 32(a)(7(C) may result in the court's striking the brief and imposing sanctions against the person signing the brief. Paula R. Bruner CERTIFICATE OF SERVICE This is to certify that on April 19, 2006, two copies of the foregoing brief and a computer diskette along with the certificate of service was mailed first class, postage prepaid, to the following counsel of record: Paul D. Boross, Esq. 941 O Street, #708 Lincoln., Nebraska 68508 Scott P. Moore, Esq. BAIRD & HOLM 1500 Woodmen Tower Omaha, Nebraska 68102 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 April 19, 2006 ADDENDUM 1. District Court Decision 2. Excerpts of EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Pages 30-32, answer to Question 22 Pages 33-34, answer to Question 24 Page 41, answer to Question 29 DISTRICT COURT DECISION EEOC ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION AND UNDUE HARDSHIP EXCERPTS ******************************************************************************** <> <1> Because the district court determined that Rehrs could not perform the essential functions of the warehouse job when he was unable to rotate shifts, the court declined to rule on whether he had suffered an adverse employment action. Dec. at *2. <2> In rejecting Rehrs’ evidence that rotating shifts was not an essential function of the warehouse technician job, the district court opined that the coworkers’ testimony about how the warehouse job was performed on straight shifts before P&G acquired the plant and after it outsourced the duties to another company was “immaterial.” Dec. at *8. The Commission disagrees with the court’s conclusion. If there were a factual dispute in this case as to whether shift rotation is an essential function, the ADA’s regulations make clear that the work experience of past and current incumbents in the job at issue or similar jobs is relevant to the determination. See 29 C.F.R. § 1630.2(n)(3)(vi-vii). <3> The district court also declined to address whether Rehrs suffered an adverse action when it decided he could not perform the essential functions of the warehouse job. The Commission believes that the evidence in support of finding that P&G did not meet its reassignment obligation could also lead a reasonable jury to conclude that Rehrs was subjected to an adverse employment action. Rehrs was offered an undesirable position, required to compete for positions, and ultimately forced to take permanent disability leave. Therefore, this unresolved element of the prima facie case provides no alternative basis for affirmance.