Statement Regarding Oral Argument

The EEOC requests oral argument. The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., requires employers to make reasonable accommodations for the disabilities of otherwise qualified employees and specifically lists reassignment as a form of reasonable accommodation. This appeal raises a question of first impression: whether the ADA requires reassignment without competition when a disabled employee is no longer qualified for her current job but is qualified for a vacant position. The Supreme Court suggests, and other Circuits hold, that it does. Oral argument would allow the Court to explore this and other issues in greater depth.

Additionally, this case has a complex record, involving a jury trial and several bench decisions. Oral argument would enable the Court to resolve any questions it may have about the record.

Table of Contents

Certificate of Interested Persons and Corporate Disclosure Statement......... C-1

Statement Regarding Oral Argument................................................................. i

Table of Authorities.......................................................................................... v

Statement of Jurisdiction.................................................................................. 1

Statement of the Issues..................................................................................... 1

Statement of the Case....................................................................................... 2

A. Course of Proceedings............................................................................ 2

B. Statement of Facts.................................................................................. 3

C. District Court’s Decisions.................................................................... 11

1. Summary Judgment.................................................................... 11

2. Jury Instructions and Verdict..................................................... 14

3. Post-Trial Motions...................................................................... 15

4. Post-Trial Rulings....................................................................... 19

Summary of Argument................................................................................... 21

Argument ....................................................................................................... 24

A. This Court should uphold the final judgment in favor of the EEOC..... 24

1. Standard of Review................................................................... 24

2. Bryk is covered under the ADA because she is a qualified individual with a disability.................................................................................... 25

a. Bryk is disabled............................................................ 25

b. Bryk’s qualifications for her then-current job are irrelevant because she sought reassignment...................................................... 28

3. The jury reasonably found that Bryk was qualified to fill at least one vacant position .................................................................................... 31

4. Good faith is not a defense to liability....................................... 34

5. The Hospital, which bore the burden of proof on the undue hardship affirmative defense, waived any objection to the jury’s failure to reach the issue 38

B. This Court should vacate the jury’s finding of good faith and remand for a trial limited to compensatory and punitive damages................................................ 39

1. Standard of Review................................................................. 40

2. The district court should have instructed the jury that the ADA requires reassignment without competition.......................................... 41

3. In the alternative, the district court should not have instructed the jury that the thirty-day deadline the Hospital imposed on Bryk for obtaining a new job was reasonable as a matter of law.................................................. 52

C. This Court should reverse the denial of equitable relief........................ 56

1. Standard of Review................................................................. 56

2. Bryk is entitled to back pay.................................................... 56

3. Bryk is entitled to reinstatement or front pay......................... 61

4. The EEOC is entitled to an injunction..................................... 62

Conclusion...................................................................................................... 64

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases

Adams v. Austal, USA, LLC, 754 F.3d 1240 (11th Cir. 2014)......................... 40

*Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998)

(en banc)................................................................................................... 42, 48

*Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362

(1975)............................................................................................ 23, 58-60, 62

Booth v. Pasco Cty., Fla., 757 F.3d 1198 (11th Cir. 2014)....................... 40, 52

Boykin v. ATC/VanCom of Colo., L.P., 247 F.3d 1061 (10th Cir. 2001)......... 53

Bush v. Donahoe, 964 F. Supp. 2d 401 (W.D. Penn. 2013)............................ 28

Cazeau v. Wells Fargo Bank, N.A., 614 F. App’x 972 (11th Cir. 2015)......... 50

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S. Ct. 1597 (1999). 42

Cooke v. Advanced Fire Prot., 2009 WL 2216786 (N.D. Fla. July 23, 2009).. 28

*Coralluzzo v. Educ. Mgmt. Corp., 86 F.3d 185 (11th Cir. 1996)................... 39

Corley v. U.S., 556 U.S. 303, 129 S. Ct. 1558 (2009)..................................... 42

Crowell v. Denver Health & Hosp. Auth., 572 F. App’x 650

(10th Cir. 2014).............................................................................................. 28

Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667 (7th Cir. 1998)................... 46

Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995).............................. 48

EEOC v. Abercrombie & Fitch Stores, Inc., ___ U.S. ___,

135 S. Ct. 2028 (2015)................................................................................... 44

EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790

(8th Cir. 2007)................................................................................................ 37

EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244

(11th Cir. 1997).................................................................................. 56, 60, 63

EEOC v. MCI Telecomm. Corp., 993 F. Supp. 726 (D. Ariz. 1998)................ 51

*EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012)................... 46-47

EEOC v. W&O, Inc., 213 F.3d 600 (11th Cir. 2000)................................. 61, 62

Evans v. Gen. Motors Corp., 1997 WL 32936 (2d Cir. Jan. 23, 1997) ...... 30-31

Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (11th Cir. 1999)........ 41, 52

Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S. Ct. 3057 (1982)................... 60

Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997).................. 30

Gen. Tel. Co. of the NW v. EEOC, 446 U.S. 318, 100 S. Ct. 1698 (1980) 56, 63

Gillard v. Ga. Dep’t of Corrections, 500 F. App’x 860 (11th Cir. 2012)........ 35

Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907 (11th Cir. 1996)........... 27

Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012)........................................... 56

Griffin v. U.S., 502 U.S. 46, 112 S. Ct. 466 (1991)......................................... 34

Hammond v. Jacobs Field Servs., 499 F. App’x 377 (5th Cir. 2012).............. 30

Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928 (7th Cir. 1995)............................. 27

Heffernan v. U.S. Bank Nat’l Ass’n, 2014 WL 3408594

(S.D. Ohio July 10, 2014)............................................................................... 28

Hedrick v. Western Reserve Care Sys., 355 F.3d 444 (6th Cir. 2004)............... 48

Holston Invs., Inc. B.V.I. v. LanLogistics Corp., 677 F.3d 1068

(11th Cir. 2012).............................................................................................. 25

Holly v. Clairson Indus., LLC, 492 F.3d 1247 (11th Cir. 2007)...................... 49

Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir. 2007),

cert. granted in part, 552 U.S. 1074 (2007), cert. dismissed on stipulation

of the parties, 552 U.S. 1136 (2008)............................................................... 49

Lewis v. Fed. Prison Indus., Inc., 953 F.2d 1277 (11th Cir. 1992).................. 61

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001)............ 29-30, 41

Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264 (11th Cir. 2014)........ 26

Nadler v. Harvey, 2007 WL 2404705 (11th Cir. Aug. 24, 2007)..................... 27

Pangalos v. Prudential Ins. Co. of Am., 1996 WL 612469

(E.D. Pa. Oct. 15, 1996), aff’d, 118 F.3d 1577 (3d Cir. 1996) (table)............. 30

Porter v. Natsios, 414 F.3d 13 (D.C. Cir. 2005).............................................. 57

Rocco v. Gordon Food Serv., 998 F. Supp. 2d 422, 427 (W.D. Pa. 2014),

aff’d, 609 F. App’x 96 (3d Cir. 2015)....................................................... 27-28

Schmidt v. Methodist Hosp. of Ind., Inc., 89 F.3d 342 (7th Cir. 1996)............. 30

Siudock v. Volusia Cty. Sch. Bd., 568 F. App’x 659 (11th Cir. 2014)............. 30

*Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999)

(en banc)............................................................................................. 46, 47, 51

*Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278

(11th Cir. 1997)................................................................................... 34-35, 50

Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S. Ct. 409 (1944)............ 24

Terrell v. USAir, 132 F.3d 621 (11th Cir. 1998).............................................. 49

Teshima v. Runyon, EEOC Appeal No. 01961997,

1998 WL 236476 (May 5, 1998).................................................................... 37

Toronka v. Cont’l Airlines, Inc., 2010 WL 3064152

(S.D. Tex. Aug. 3, 2010)................................................................................. 30

*U.S. Airways v. Barnett, 535 U.S. 391,

122 S. Ct. 1516 (2002)....................................................... 32, 33, 43-44, 48-49

U.S. v. Browne, 505 F.3d 1229 (11th Cir. 2007)............................................. 34

U.S. v. Dohan, 508 F.3d 989 (11th Cir. 2007)................................................ 38

U.S. v. Felts, 579 F.3d 1341 (11th Cir. 2009)................................................. 55

U.S. v. Townsend, 924 F.2d 1385 (7th Cir. 1991)........................................... 34

U.S. v. Trujillo, 146 F.3d 838 (11th Cir. 1998)................................... 24, 31, 35

Valentine v. Johnston Textiles, Inc., 2012 WL 887467

(M.D. Ala. Feb. 16, 2012), report and rec. adopted by

2012 WL 887059 (M.D. Ala. Mar. 15, 2012)................................................. 28

Vaughan v. World Changers Church Int’l, Inc., 2014 WL 4978439

(N.D. Ga. Sept. 16, 2014)............................................................................... 28

Watkins v. City of Montgomery, Ala., 775 F.3d 1280 (11th Cir. 2014)............ 40

Weatherly v. Ala. State Univ., 728 F.3d 1263 (11th Cir. 2013)........................ 61

Williams v. Philadelphia Housing Auth. Police Dep’t, 380 F.3d 751

(3d Cir. 2004)................................................................................................. 37

*Willis v. Conopco, Inc., 108 F.3d 282 (11th Cir. 1997)........................... 38, 49

Statutes

28 U.S.C. § 1291.............................................................................................. 1

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

*42 U.S.C. § 1981a(a)(3).................................................................... 16, 18, 37

*Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq............... i

§ 12101(a)(6)......................................................................................... 42

§ 12101(b)(1)........................................................................................ 60

§ 12102(1)(A)........................................................................................ 25

§ 12102(2)(A)........................................................................................ 26

§ 12111(8)....................................................................................... 28, 41

§ 12111(9) ...................................................................................... 41, 44

§ 12112(a) ............................................................................................ 45

§ 12112(b)(5)(A)....................................................................... 41, 45, 51

§ 12117(a)......................................................................................... 1, 56

*Americans with Disabilities Act Amendments Act (“ADAAA”),

Pub. L. No. 110-325, 122 Stat. 3553 (2008)............................................. 11, 25

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

§ 2000e-5(f)............................................................................................. 1

Rules and Regulations

29 C.F.R. § 1630.2(j)................................................................................ 25, 26

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

Federal Rule of Civil Procedure 51........................................................... 41, 52

Other Authority

*ADAAA Legislative History

42 U.S.C. § 12101 note......................................................................... 25

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

reprinted at 1990 U.S.C.C.A.N. 303............................................... 29, 42

*EEOC Enforcement Guidance: Reasonable Accommodation

and Undue Hardship Under the ADA, 2002 WL 31994335

(Oct. 17, 2002)........................................................................ 29, 37, 46, 50, 53

11th Cir. Pattern Jury Instr. (Civil), No. 4.12, ADA, Reas. Accom.,

42 U.S.C. §§ 12101-12117, Comments (2013), available at http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCivilPatternJuryInstruction.pdf ........................................................................................................................ 36

Statement of Jurisdiction

The district court had jurisdiction over this Americans with Disabilities Act (“ADA”) case under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a), which incorporates by reference sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) and (3). The district court entered final judgment disposing of all parties’ claims on August 13, 2015. (R.198) Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the Hospital filed a timely notice of appeal on October 12, 2015 (R.211), and the EEOC filed a timely notice of appeal on October 13, 2015 (R.213). This Court has jurisdiction under 28 U.S.C. § 1291.

Statement of the Issues

1. Should this Court uphold final judgment in favor of the EEOC where the district court correctly held that Bryk was disabled, her qualifications for her then-current job were irrelevant because she sought reassignment, the jury reasonably found that she was qualified to fill a vacant position, and the Hospital’s purported good faith is not a defense to liability?

2. Did the Hospital waive its affirmative defense of undue hardship by not arguing that the jury should have reached that issue regardless of whether it found that the Hospital had acted in good faith?

3. Should this Court vacate the jury’s finding of good faith and remand for a determination of compensatory and punitive damages where the district court (1) erroneously failed to instruct the jury that the ADA requires reassignment without competition, and (2) erroneously instructed the jury that the thirty-day deadline the Hospital imposed on Bryk for obtaining a new job was reasonable as a matter of law?

4. Should this Court reverse the denial of equitable relief where the district court failed to explain how denying such relief would achieve the ADA’s goals of deterring discrimination and making victims whole, and where the Supreme Court has held that an employer’s good faith is not grounds for denying back pay or injunctions under an anti-discrimination statute?

Statement of the Case

A. Course of Proceedings

The EEOC filed this ADA action against St. Joseph’s Hospital on October 23, 2013. (R.1) The parties filed cross-motions for summary judgment on January 9, 2015. (R.80; R.99) On February 18, 2015, the district court granted both motions in part. (R.121) The EEOC moved for clarification of the court’s order, and on February 27, 2015, the court granted this motion. (R.126) The case proceeded to a four-day jury trial. (R.178; R.179; R.180; R.181) On April 2, 2015, the jury returned a verdict finding that the Hospital had failed to provide a reasonable accommodation but had acted in good faith. (R.164) On April 6, 2015, the court entered judgment in favor of the Hospital. (R.173) The EEOC moved for judgment as a matter of law (R.183) and to alter the judgment (R.184). On August 12, 2015, the court denied the EEOC’s motion for judgment as a matter of law and partly granted the motion for alteration of judgment. (R.197) On August 13, 2015, the court entered an amended final judgment in favor of the EEOC. (R.198) Both parties appealed. (R.211; R.213)

B. Statement of Facts

St. Joseph’s Hospital is a member of BayCare Health Systems, an alliance of hospitals, medical centers, and home health care providers. (R.180, Vol. 3 at 58-60) The organizations belonging to BayCare follow BayCare’s policies, use BayCare’s online hiring system, and share a human resources department. (Id. at 58-61; R.179, Vol. 2 at 80; R.178, Vol. 1 at 182) Employees who wish to move from one organization to another are considered internal applicants seeking a transfer. (R.179, Vol. 2 at 36) Employees who are disabled and seek reassignment as an accommodation for their disability are not, pursuant to BayCare policy, given any preference in selection for other positions. (R.178, Vol. 1 at 182)

Leokadia Bryk began working as a nurse in the psychiatric department of St. Joseph’s Hospital in 1990. (Id. at 74) In 2002, she began to experience back pain. An MRI revealed that a disc was narrowing her spinal canal and pressing on her nerve roots, a condition called spinal stenosis. (R.82 at 49, 54-56) Most of her condition was arthritic, meaning that it would get worse. (Id. at 55-56) She also developed arthritis in her right hip and had her hip replaced in 2009. (R.81 at 45-46, 48-51) Her hip pain abated but her back pain continued. (Id. at 56-57)

Bryk began to use a cane to alleviate her back pain and to provide support. (Id. at 43, 71, 89) Without the cane, she could only walk short distances and then had to stop, align her body, and balance herself. (Id. at 89-91) Observers described her gait as “crooked,” “limping,” “strange,” and “lurch[ing].” (R.82 at 40, 49-50, 57; R.100-6 at 15; R.100-7 at 15) Occasionally, she fell. (R.100-6 at 15, 18-19) Her coworkers could tell that she “was obviously in a lot of pain.” (Id. at 17-19)

From 2009-2011, Bryk used a cane on the psychiatric unit. (R.81 at 41, 43) She was a charge nurse at the time, so she spent much of her time behind a desk with the cane tucked away out of sight. (R.87 at 18, 72; R.90 at 35; R.107-7 at 40) Bryk’s supervisor stated she was unaware that Bryk had the cane on the unit. (R.87 at 17)

In October 2011, Bryk was demoted for reasons unrelated to this litigation and the Hospital placed a final written warning in her file. (R.178, Vol. 1 at 171) In the course of conducting the disciplinary action, Bryk’s higher level supervisor became aware that she was using a cane at work. (R.96-1 at 98-99) Fearing that an unstable patient could grab the cane and use it as a weapon, the supervisor required Bryk to provide a doctor’s note explaining her need for the cane and to obtain clearance from the Employee Health department. (R.81-1 at 128, 156-57; R.96-1 at 138) Bryk’s doctor wrote that Bryk needed a cane for “gait dysfunction following total hip replacement.” (R.81-10) After consulting with Bryk’s supervisor, Employee Health notified Bryk that she could not use the cane in the psychiatric unit. (R.81-1 at 137-39; R.81-10)

Employee Health gave Bryk thirty days to obtain a new position within BayCare or be terminated. (R.91-1 at 190; R.178, Vol. 1 at 102) BayCare had 700 online job postings, all of which were open to the public at large. (R.178, Vol. 1 at 187) Normally, the Hospital did not permit internal candidates to apply for a transfer unless they had been in their current position for at least six months and had no final written warnings in their record. (R.179, Vol. 2 at 12-13) The Hospital waived these requirements for Bryk, but it required her to compete with all other applicants, including external candidates. (Id. at 12, 84-85)

The Hospital made Team Member Relations Manager Krista Sikes available to answer questions, but no one helped Bryk with her job search. (Id. at 45; R.178, Vol. 1 at 102-03, 111; R.180, Vol. 3 at 48) To the contrary, Team Resources Director Pat Teeuwan told Bryk “that they couldn’t accommodate me, it wasn’t their job to get a job for me.” (R.178, Vol. 1 at 108) Sikes confirmed, “We don’t reassign.” (Id. at 187) Sikes contacted various BayCare recruiters solely to see where Bryk’s application was in the hiring process. (Id.; R.179, Vol. 2 at 46-50) She did not contact hiring officials to speed up their review even though BayCare’s application process typically took many months.[1] (R.179, Vol. 2 at 19, 122, 152-54)

The Hospital’s hands-off approach to Bryk’s job search contrasted with its usual approach to internal applicants. Typically, BayCare gives preferential consideration to qualified internal applicants. (R.179, Vol. 2 at 64-65, 67, 147) The Hospital now says that “[f]or reasons unknown to the Hospital, Bryk applied to each position as an external candidate, even though she was an active employee at the time.” (Hosp. Br. at 7 n.2) Had Sykes been actively involved in helping Bryk, as the Hospital asserts (id. at 8), she presumably would have advised Bryk to submit her applications through internal channels. In any event, the Hospital was aware of Bryk’s applications.

The Hospital has ample experience helping internal candidates seek new positions, none of which it applied to Bryk. If a current employee’s job is eliminated, for instance, the Hospital provides “a variety of assistance or a variety of opportunities that the regular transfer would not be provided.” (Id. at 21) Recruiters, the employees who initially screen job applicants to determine whether they are qualified for a posted position, provide special help to “position elimination” candidates. (Id. at 21-22, 81-84) Unlike Sikes, who reached out to recruiters only to determine the status of Bryk’s applications, the recruiters acting on behalf of “position elimination” candidates contact their counterparts throughout BayCare to say, “I have a person, we’re looking . . . [for] this kind of a position . . . do you have anything available?” (Id. at 83-84) Sikes did not explain why she did not provide this same assistance to Bryk.

Following a previously scheduled vacation, Bryk applied online for seven positions, six within the thirty-day period and one afterwards. (R.100-39 at 10-12) She did not submit any application until three weeks into the thirty-day period. (R.178, Vol. 1 at 150) At trial, based on the court’s rulings, the parties focused on three of her applications (all submitted within thirty days): (1) Education Specialist, (2) Care Transition Coordinator, and (3) Home Health Clinician. (Id. at 112, 116, 154-55) Bryk was neither interviewed nor hired for any of these positions. (R.179, Vol. 2 at 20)

An Education Specialist is responsible for monthly orientation for new hires at one of BayCare’s locations, as well as training on new equipment, electronic medical records, and regulations. (Id. at 95) The job also entails chart reviews and on-the-spot training for nurses or other employees with identified deficiencies. (Id. at 96) The job description does not include patient care. (R.84-9 at 11-16) Although the Hospital characterizes this position as a promotion (Hosp. Br. at 32), Bryk earned more in her then-current job than the minimum salary for an Education Specialist. (Compare Pl. Ex. 47 with Pl. Ex. 27 at 2)

The recruiter who initially screened Bryk’s application for the Education Specialist position determined that she was qualified for the job and forwarded her application to the hiring manager. (Id. at 18, 97-98) Typically, a hiring manager would arrange an interview at this point. (Id. at 19) The hiring manager, however, decided not to interview Bryk because Bryk’s background was primarily in psychiatry. (Id. at 108) She ended up hiring a nurse whose background was primarily in OB/GYN. (Id. at 111)

A Care Transition Coordinator goes to hospitals, gathers information from a chart, and then coordinates post-hospital home care. (Id. at 141) The Coordinator communicates with the home care agency and the pharmacy, sets up the patient’s first visit with the Home Health Clinician, and explains what services will be provided. (Id. at 141, 143) She does not treat the patient. (Id. at 142-43) The hiring manager for this job testified that she was unaware of Bryk’s application. (Id. at 154-56) The Hospital says that the position was posted in error, but BayCare interviewed another candidate for the position and did not cancel the posting until May 2012. (Id. at 153-54)

A Home Health Clinician cares for patients in their homes following their discharge from the hospital. (Id. at 174) The hiring manager noted that “psychiatric experience can be beneficial.” (Id. at 176-77) However, Bryk’s application for this job was rejected without explanation. (R.178, Vol. 1 at 117-18) Although Bryk saw postings for three identical vacancies, she assumed from her rejection that she would not be hired. (Id.) No one from the Hospital explained that the position she applied to had already been filled and that her rejection therefore said nothing about whether she could be hired for another, identical position. (R.179, Vol. 2 at 12) Nor did the Hospital make any effort to move the successful applicant into one of the identical vacancies, thereby creating space for Bryk to fill the opening for which she had applied. (Id. at 181)

Bryk testified that she was qualified for all three of the above positions based not only on her 21 years in the Hospital’s psychiatric unit but also on her other nursing experience. (R.178, Vol. 1 at 76-79, 81-92, 157-58) Even while serving as a nurse in the psychiatry department, Bryk worked part-time as a Home Health nurse, serving patients whose needs were primarily medical, not psychiatric. (R.180, Vol. 3 at 26-28, 44-46) She also noted, “I’m capable of being trained and refreshed.” (R.178, Vol. 1 at 141)

The Hospital argued that it had no obligation to reassign Bryk to a vacant position for which she was qualified. (R.180, Vol. 3 at 132) It asserted that doing so would conflict with a purported BayCare policy of hiring only the best qualified candidates for its vacancies. (R.179, Vol. 2 at 68) Sikes testified, however, that hiring managers might not necessarily hire the “most qualified” candidates. (R.178, Vol. 1 at 181) The Hospital might hire an applicant “[i]f she met the qualifications,” Sikes said. “[I]t wouldn’t be that she was the most qualified necessarily.” (Id.)

Even though it did not reassign Bryk, Sikes explained, the Hospital accommodated her by making an exception to its policy that an employee may not transfer to another position if she has a final written warning in her file. (R.179, Vol. 2 at 13) The Hospital argued that giving Bryk thirty days to obtain a new position satisfied its reasonable accommodation obligation. (R.178, Vol. 1 at 178) When thirty days had elapsed and Bryk had not secured another job, the Hospital fired her. (Id. at 118)

The EEOC sued under the ADA (R.1) and the parties filed cross motions for summary judgment. (R.80; R.99) The Hospital argued that (1) Bryk was not disabled (R.80 at 12-16); (2) Bryk never made the hospital aware of her stenosis (id. at 18); (3) allowing Bryk to use her cane in the psychiatric unit was not a reasonable accommodation (id. at 19); (4) the ADA did not require the Hospital to reassign Bryk without competition (id. at 23); (5) Bryk did not engage in the interactive process (id. at 25); (6) the Hospital engaged appropriately in the interactive process by offering Bryk thirty days to find another job and waiving the normal transfer requirements (id. at 24-25); and (7) Bryk applied only to jobs for which she was not qualified or that were not vacant (id. at 23-24).

The EEOC argued that (1) Bryk was disabled (R.99 at 11-13); (2) Bryk requested a reasonable accommodation for her disability (id. at 23-25); (3) allowing Bryk to use her cane in the psychiatric unit was a reasonable accommodation (id. at 25-26); (4) the ADA requires reassignment without competition (R.108 at 21); (5) Bryk engaged in the interactive process by applying for vacant positions within thirty days (id. at 22 n.28); (6) the thirty-day period that the Hospital gave Bryk to find another job was unreasonably short (id. at 23); and (7) Bryk was qualified for three vacant positions to which she applied (id. at 22-25).

C. District Court’s Decisions

1. Summary Judgment

Noting that under the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008), disability determinations should not involve extensive analysis, the court held that Bryk’s “gait dysfunction” was sufficient to establish that she was disabled. Accordingly, the court held, whether Bryk had informed the hospital of her stenosis was moot. (R.121 at 9)

With respect to the proposed accommodations, the court held that allowing Bryk to use her cane in the psychiatric unit was not reasonable. (Id. at 14-15) However, on the issue of reassignment, the court found a genuine issue of material fact as to whether Bryk was qualified for the Education Specialist position or the Care Transition Coordinator position. (Id. at 16-18) The parties did not discuss the Home Health Clinician position on summary judgment.

In response to the EEOC’s subsequent motion for clarification (R.124), the court said it was not holding that the Hospital had an obligation to reassign Bryk to the vacant positions for which she was qualified without competition as a matter of law. “More than one disabled employee could seek the same position as an accommodation,” the court said, “in which case an employer would have to make the two employees compete for the position. Therefore, whether Bryk had to compete with others for the vacant positions is one factor, out of many, that the jury may consider regarding the reasonableness of the accommodation.” (R.126 at 1)

The court also held that the thirty-day period that the Hospital gave Bryk “to identify a vacant position for which she qualified” was reasonable as a matter of law. (Id.) The court did not consider that the Hospital gave Bryk thirty days not only to identify a vacant position, but also to obtain one. Focusing only on the existence of a vacancy, the court explained that a “vacant” position for purposes of reassignment is one that “is available at or around the time the employee asks for a reasonable accommodation or the employer knows . . . will become available in the fairly immediate future.” (Id. at 2) Positions open beyond thirty days, the court concluded, were not “vacant.” (Id. at 3) Moreover, the court said, “thirty days is certainly reasonable as compared to same day termination.” (Id.)

The EEOC asked the court to reconsider this ruling, observing that the Hospital had given Bryk thirty days “to secure another position within BayCare or be terminated.” (R.155 at 1) Although Bryk identified several vacancies within thirty days, the EEOC argued, the Hospital did not interview her within thirty days for any of the positions. Sikes never asked any of the hiring officials to speed up their review of Bryk’s applications, and it took many months for her applications to move through the normal hiring process. (Id. at 3) “[G]iven the evidence that [the Hospital’s] internal processes and procedures – from the initial completion of the on-line application to the recruiter review, to the hiring manager review and interview, to the offer and acceptance, to the background checks and pre-employment processing to the final ‘orientation and competencies’” took many months, the EEOC said, “a jury could reasonably find that it was unreasonable to expect Ms. Bryk to complete these processes, thereby securing a position, in 30 days and instruct the jury accordingly.” (Id. at 4)

The court denied the EEOC’s motion for reconsideration. (R.156) At trial, the court instructed the jury: “Although the Court has made no determination about whether Ms. Bryk was provided a reasonable accommodation, the Court has determined as a matter of law that the amount of time – 30 days – provided to Ms. Bryk was a reasonable time.” (R.171 at 9)

At the pretrial conference, the court agreed to let the jury hear about the Home Health Clinician position for which Bryk applied. (R.135 at 11-12) The court subsequently agreed to let the jury hear about the vacant, identical positions for which she did not apply. (R.179, Vol. 2 at 188-89)

2. Jury Instructions and Verdict

Consistent with the Eleventh Circuit pattern jury instructions, the court instructed the jury to rule, in the following order: (1) whether the Hospital had failed to provide a reasonable accommodation by not assigning Bryk to the Educational Specialist, Care Transition Coordinator, or Home Health Clinician position, (2) if yes, whether the Hospital established its affirmative defense that it made good faith efforts at reasonable accommodation, (3) if no, whether the Hospital established its affirmative defense that the proposed accommodation would have constituted an undue hardship, and (4) if no, the amount of damages that should be awarded. (R.171 at 11-15; R.164 at 1-2) The court instructed the jury that if it found good faith, it should not proceed to decide undue hardship or damages. (R.164 at 1) The court did not ask the jury to decide whether Bryk had participated in the interactive accommodation process in good faith (id. at 1-2), and the Hospital did not ask it to do so. (R.150) Nor did the Hospital object to the instruction that the jury should not consider undue hardship if it found that the Hospital had acted in good faith.

The jury found that the Hospital had failed to provide a reasonable accommodation by not assigning Bryk to one of the three identified positions. (Id. at 1) The jury also found that the Hospital had acted in good faith. (Id.) Consistent with its instructions, the jury did not decide undue hardship or damages. (Id. at 2)

The district court entered final judgment for the Hospital. (R.173)

3. Post-Trial Motions

The EEOC moved for a corrected judgment in its favor. (R.184) The EEOC also asked the court to vacate the jury’s finding of good faith (R.183 at 5), to rule as a matter of law that the Hospital could not prove undue hardship (id. at 17), to award equitable relief (id. at 20), and to remand for a new trial limited to compensatory and punitive damages (id. at 21). In the alternative, the EEOC moved for a new trial as to the good faith and undue hardship affirmative defenses. (Id.)

In support of its motion for a corrected judgment, the EEOC observed that the jury’s good faith finding was relevant only as a defense to compensatory and punitive damages, not as a defense to liability. (R.184 at 3) The EEOC cited the language of 42 U.S.C. § 1981a(a)(3), which makes explicit the limitations of the good faith defense. (Id. at 4)

In support of its request that the court vacate the jury’s finding of good faith, the EEOC renewed its argument that the ADA requires reassignment without competition. (R.183 at 6-9) Allowing Bryk to compete for vacancies was not a good faith “alternative” accommodation, the EEOC said; it was a failure to comply with the ADA. (Id. at 8-9) Second, the EEOC argued, even if the ADA permitted competition, the evidence showed that the Hospital gave Bryk less support in her job search than it gave other employees who were seeking a transfer. (Id. at 13-17) For both of these reasons, the EEOC argued, the court should vacate the jury’s finding of good faith and remand for a calculation of compensatory and punitive damages. (Id. at 21)

The EEOC also argued that the Hospital had waived its undue hardship affirmative defense by not objecting to the jury’s failure to reach the issue. (R.195 at 4-5) In the alternative, the EEOC argued that the Hospital’s sole basis for claiming undue hardship was legally unsupportable. (R.183 at 17) The Hospital insisted that its status as a health care facility meant that it had to fill vacancies with the most qualified candidate, not with a candidate who met the minimum qualifications. However, the EEOC argued, the facts introduced at trial demonstrate that Bryk was amply qualified to perform any of the three jobs at issue safely and competently. (Id. at 19)

Finally, the EEOC observed that the ADA specifically authorizes equitable relief to prevailing plaintiffs. (R.184 at 6) The EEOC asked this court to award injunctive relief, back pay, and reinstatement or front pay upon entry of a corrected judgment. (Id. at 6-18)

The Hospital, in contrast, argued that the jury correctly found that it had acted in good faith. (R.189 at 6) According to the Hospital, Bryk never requested reassignment – the hospital offered her that opportunity, waived its transfer requirements, made Sikes available to answer any questions, and gave Bryk thirty days to find a new job. (Id.) The three positions at issue, the Hospital said, were either beyond Bryk’s qualifications or were not vacant. (Id. at 9) Moreover, the Hospital said, even if Bryk met the minimum qualifications for the jobs at issue, she still “did not have the requisite skill, experience and aptitude required, creating a safety risk” and imposing an undue hardship. (Id. at 10)

The Hospital also argued that good faith is a defense to liability. (R.190 at 2) Pointing to law on the breakdown of the interactive accommodation process, the Hospital said that an employer “cannot be found to have violated the ADA when breakdown of the process is traceable to the employee.” (Id. at 4-5) Here, the Hospital said, Bryk went on a previously scheduled vacation and did not begin to look for jobs until her thirty days had almost expired. Any breakdown, the Hospital said, was therefore attributable to Bryk. (Id. at 13) Regardless of language in 42 U.S.C. § 1981a specific to compensatory and punitive damages, the Hospital said, the ADA prohibits any relief to a plaintiff who is responsible for a breakdown in the interactive process. (Id. at 15)

The Hospital also argued that the Eleventh Circuit pattern jury instructions support its claim that good faith is a defense to liability. (Id. at 5-6) The pattern verdict form, the Hospital observed, requires the jury to answer the question of good faith before reaching the question of undue hardship. Both defenses, it concluded, must therefore operate as defenses to liability. (Id. at 8) The Hospital noted that the EEOC had not objected either to the good faith portion of the verdict form or to the instruction that a finding of good faith ended deliberations. Failure to object, the Hospital said, meant that the EEOC had waived any objection that the good faith defense was a defense to damages only. (Id. at 8-9)

Finally, the Hospital argued, even if the court were to enter a corrected judgment, equitable relief would be inappropriate based on the jury’s finding of good faith. (Id. at 16) “[A]t most what was at issue,” the Hospital said, “was a single employment decision related to whether Bryk was mistakenly regarded as not having the qualifications for the position of Health Educator and at best a mistaken understanding by the Hospital as to whether the other two positions were vacant.” (Id. at 16)

4. Post-Trial Rulings

The district court affirmed its summary judgment ruling that the ADA does not mandate reassignment without competition as a matter of law. (R.197 at 6) The court also held that evidence supported the jury’s finding of good faith. (Id. at 7) Specifically, once the Hospital determined that it could not accommodate Bryk’s cane use on the psychiatric unit, it gave her an alternative accommodation − waiving its transfer requirements, making Sikes available for questions, and giving Bryk thirty days to obtain a job. (Id.) The court added that the jury could reasonably have determined that Bryk was partially responsible for the breakdown in the interactive process because she did not apply for any new position until three weeks into the thirty-day period. (Id. at 7-8)

The court refused to rule on the undue hardship defense as a matter of law. “If the EEOC wanted the jury to reach that specific interrogatory after hearing the verdict,” the court said, “it should have raised the issue at trial before the court excused the jury. Having upheld the jury verdict, the court will not address the undue burden defense.” (Id. at 9)

The court agreed with the EEOC that the good faith defense was a defense only to damages, not to liability. “The cases on which the Hospital relies,” the court explained, “involve not only a showing of good faith on behalf of the employer, but also a lack of good faith participation by the employee, an issue the verdict form did not present to the jury.” (Id. at 14) For this reason, the court entered an amended final judgment declaring the EEOC the prevailing party. (Id. at 15; R.198)

Having rendered judgment for the EEOC, the court proceeded to consider the EEOC’s request for equitable relief. Based on its ruling that the ADA does not mandate reassignment without competition, the court declined to order an injunction barring the Hospital from refusing to reassign, without competition, disabled individuals to vacant positions for which they are qualified and in which they have expressed interest. (R.197 at 15)

Finding that Bryk had not engaged in the interactive process in good faith, the court also denied back pay and front pay. “Although the court cannot fashion equitable relief in contravention of a jury’s finding that the hospital ultimately failed to provide a reasonable accommodation,” the court said, “it can limit Bryk’s recovery. . . . The Hospital should not be responsible for back pay in an amount exceeding $100,000 where it acted in good faith. Due to no fault of the Hospital, Bryk’s inaction contributed to a breakdown of the interactive process.” (Id. at 15-16)

The court also denied front pay, concluding that reinstatement would be the most appropriate means of making Bryk whole. (Id. at 16-17) The court declined to order reinstatement outright, stating that because Bryk’s actions caused the breakdown in the interactive process, Bryk was merely entitled to the “opportunity for reinstatement.” (Id. at 17) Accordingly, the court ordered the parties to mediate to determine the specific parameters for Bryk’s application for reinstatement. (Id.) After one month, the mediator notified the court that the parties had reached an impasse. (R.206)

Summary of Argument

This Court should affirm the liability judgment in favor of the EEOC. There is no basis for the Hospital’s claim that Bryk is not covered under the ADA. Bryk has a physical impairment that substantially limits her ability to walk, rendering her disabled within the meaning of the statute. The Hospital had constructive notice of her disability because she walked with a cane, had a profound limp, and was obviously in extreme pain. It is irrelevant whether the Hospital knew of Bryk’s diagnosis.

The Hospital is also wrong that Bryk’s ADA coverage turns on whether she was qualified to continue working in the psychiatric unit, rather than on whether she was qualified to perform a job to which she sought reassignment. The ADA requires an employee to be qualified, with or without reasonable accommodation, to perform the essential functions of the position that she holds or desires. It would make no sense for the statute to list reassignment as a potential accommodation if an employee had to be qualified for the job that she needed to leave.

The Hospital’s other arguments for reversal are equally flawed. The jury’s good faith finding is only a defense to compensatory and punitive damages, not to liability. The Hospital never asked the jury to make the necessary findings to support a broader defense. Additionally, the Hospital bore the burden of proof on the undue hardship affirmative defense. By not objecting earlier to the verdict form, which allowed the jury to end deliberations without reaching that issue, the Hospital has waived any argument that the jury’s failure to consider undue hardship is grounds for reversal.

In its cross-appeal, the EEOC appeals the denial of relief. The jury did not award compensatory or punitive damages because it found that the Hospital had acted in good faith. This finding, however, rests on legal error.

First, the district court wrongly held that the ADA does not require reassignment without competition to a vacant position for which a disabled employee is qualified. The rule mandating reassignment without competition is compelled by the statutory language, the reasoning of Supreme Court precedent, and persuasive Circuit authority. Based on its erroneous holding, the district court improperly instructed the jury on the governing law. Had the jury understood that the Hospital was required to reassign Bryk, and not merely to give her the opportunity to compete with the general public for vacancies, it could not have found that the Hospital had acted in good faith.

Additionally, the district court erred by instructing the jury that the thirty-day deadline the Hospital imposed on Bryk for obtaining a new job was reasonable as a matter of law. In holding that the deadline was reasonable, the district court ignored the Hospital’s requirement that Bryk obtain a job – not merely apply for a job – within thirty days. Bryk had no control over the timing of the Hospital’s hiring decisions. Had the jury been allowed to consider this fact, it might not have found that the Hospital had acted reasonably. Removing the question from the jury prejudiced the EEOC by making it easier to find that the Hospital had acted in good faith.

The EEOC also appeals the denial of equitable relief. The ADA has two primary goals: deterring discrimination and making victims whole. The Supreme Court has explained that equitable relief is crucial for achieving these goals and should be denied “only for reasons which, if applied generally, would not frustrate the[se] central statutory purposes.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S. Ct. 2362, 2373 (1975). The district court denied back pay and reinstatement or front pay based on the Hospital’s good faith – a factor that the Supreme Court has expressly said is irrelevant. The district court also denied injunctive relief based on its erroneous holding that the ADA does not require reassignment without competition. In light of the jury’s liability finding, Bryk is entitled to back pay as well as reinstatement or front pay, and the EEOC is entitled to an injunction.

Argument

A. This Court should uphold the final judgment in favor of the EEOC.

1. Standard of Review

This Court’s reviews the sufficiency of evidence de novo, “viewing the evidence in the light most favorable to the [prevailing party] and drawing all reasonable inferences and credibility choices in favor of the jury’s verdict.” U.S. v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998). The relevant question is whether “any rational trier of fact” could have ruled in favor of the prevailing party. Id. “Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S. Ct. 409, 412 (1944).

This Court reviews questions of law and mixed questions of law and fact de novo. Holston Invs., Inc. B.V.I. v. LanLogistics Corp., 677 F.3d 1068, 1070 (11th Cir. 2012).

2. Bryk is covered under the ADA because she is a qualified individual with a disability.

a. Bryk is disabled.

The district court correctly held that Bryk is disabled as a matter of law. A “disability” under the ADA is “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). The ADA’s implementing regulations provide that an impairment is a disability “if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(ii).

Congress amended the ADA in 2008 to override unduly strict interpretations of “disability” under the statute. ADAAA, Pub. L. No. 110-325, 122 Stat. 3553; see also 42 U.S.C. § 12101 note. Rejecting the reasoning and standards of Supreme Court precedents limiting ADA coverage, Congress explained that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” 42 U.S.C. § 12101 note. The regulations clarify, “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment ‘substantially limits’ a major life activity should not demand extensive analysis.” 29 C.F.R. § 1630.2(j)(iii); see generally Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1267-68 (11th Cir. 2014).

The ADA expressly lists walking as a major life activity. 42 U.S.C. § 12102(2)(A). The evidence in this case leaves no doubt that Bryk was substantially limited in her ability to walk. Due to progressive spinal stenosis (R.82 at 49, 54-56), Bryk depended on a cane to alleviate back pain and to provide support. (R.81 at 43, 71, 89) Without the cane, she could only walk short distances and then had to stop, align her body, and balance herself. (Id. at 89-91) Observers described her gait as “crooked,” “limping,” “strange,” and “lurch[ing].” (R.82 at 40, 49-50, 57; R.100-6 at 15; R.100-7 at 15) Occasionally, she fell. (R.100-6 at 15, 18-19) Most people in the general population can walk long distances without a cane, without pain, without falling, and without an odd gait.

The Hospital protests that Bryk told it only about her hip replacement and not about her spinal stenosis. (Hosp. Br. at 54-55) Whether the Hospital knew of Bryk’s diagnosis is irrelevant. Constructive knowledge of a disability is sufficient to support liability under the ADA. Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 910 (11th Cir. 1996). As the Seventh Circuit has explained: “[I]t may be that some symptoms are so obviously manifestations of an underlying disability that it would be reasonable to infer that an employer actually knew of the disability. For example, it would appear to most observers that an employee who suffers frequent seizures at work likely has some disability.” Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995). The same is true of an employee who relies on a cane to walk, walks with an odd gait, falls, and is “obviously in a lot of pain.” (R.100-6 at 17-19)

The Hospital’s argument that “[p]ain alone is not a disability under the ADA” (Hosp. Br. at 56) relies on a flawed reading of Nadler v. Harvey, 2007 WL 2404705 (11th Cir. Aug. 24, 2007). In Nadler, this Court affirmed the district court’s conclusion that an employee’s back pain “did not rise to the level of a disability” because it did not substantially limit a major life activity. Id. at *5. Nadler relies on pre-ADAAA law and is therefore not binding. In any event, the employee’s most severe pain was limited to a short time frame and his long-term restrictions were minimal. Id. at *2. This Court did not suggest, let alone hold, that pain is inherently an inadequate basis to support a disability finding.

The other cases that the Hospital cites (Hosp. Br. at 56-57) are likewise distinguishable. See Rocco v. Gordon Food Serv., 998 F. Supp. 2d 422, 424 (W.D. Pa. 2014) (at relevant time, employee had only “a little bit” of pain), aff’d, 609 F. App’x 96 (3d Cir. 2015); Valentine v. Johnston Textiles, Inc., 2012 WL 887467, at *5 (M.D. Ala. Feb. 16, 2012) (relying on pre-ADAAA law), report and rec. adopted by 2012 WL 887059 (M.D. Ala. Mar. 15, 2012); Cooke v. Advanced Fire Prot., 2009 WL 2216786, at *1 (N.D. Fla. July 23, 2009) (temporary, non-chronic impairment, relying on pre-ADAAA law); Vaughan v. World Changers Church Int’l, Inc., 2014 WL 4978439, at *9 (N.D. Ga. Sept. 16, 2014) (evidence of pain was too vague); Crowell v. Denver Health & Hosp. Auth., 572 F. App’x 650, 657-58 (10th Cir. 2014) (evidence unclear about timing of limitations); Heffernan v. U.S. Bank Nat’l Ass’n, 2014 WL 3408594, at *14-15 (S.D. Ohio July 10, 2014) (sparse factual allegations); Bush v. Donahoe, 964 F. Supp. 2d 401, 416-21 (W.D. Pa. 2013) (temporary, non-chronic impairment).

b. Bryk’s qualifications for her then-current job are irrelevant because she sought reassignment.

Contrary to the plain language of the ADA, the Hospital argues that Bryk was qualified within the meaning of the statute only if she could perform the essential functions of her then-current job, not the essential functions of the job to which she sought reassignment. (Hosp. Br. at 50-53) The ADA provides that an individual is “qualified” if, with or without reasonable accommodation, she “can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added). An employee who applies for reassignment “desires” a new job within the meaning of the ADA, and the relevant inquiry is whether, with or without a reasonable accommodation, she is qualified to perform the essential functions of the position that she seeks.

Reassignment would make no sense as a reasonable accommodation if its availability turned on an employee’s ability to perform her current job. Indeed, “[r]eassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, 2002 WL 31994335, at *20 (Oct. 17, 2002) (“EEOC Guidance”). The purpose of reassignment is to prevent an employee who “can no longer perform the essential functions of the job that he or she has held . . . from being out of work and [to prevent the] employer from losing a valuable worker.” H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 63 (1990), reprinted at 1990 U.S.C.C.A.N. 303, 345.

This Court has recognized that when an employee seeks reassignment as a reasonable accommodation for a disability, the relevant question is not whether the employee is qualified for her current position, but whether she is qualified for the new job. Thus, in Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001), this Court examined the essential functions of the new position, not the old one, to determine whether the employee was qualified within the meaning of the statute. Id. at 1258.

The cases the Hospital cites (Hosp. Br. at 51-52) do not support its claim that an employee must qualify for her existing job to be eligible for the reasonable accommodation of reassignment. In Siudock v. Volusia Cty. Sch. Bd., 568 F. App’x 659, 663 (11th Cir. 2014), for example, the employee could not perform the essential functions of any position. Hammond v. Jacobs Field Servs., 499 F. App’x 377, 382 (5th Cir. 2012), and Toronka v. Cont’l Airlines, Inc., 2010 WL 3064152, at *10 (S.D. Tex. Aug. 3, 2010), hold that an employer need not redistribute essential job functions to other employees. Schmidt v. Methodist Hosp. of Ind., Inc., 89 F.3d 342, 344 (7th Cir. 1996), and Pangalos v. Prudential Ins. Co. of Am., 1996 WL 612469, at *3 (E.D. Pa. Oct. 15, l996), aff’d,118 F.3d 1577 (3d Cir. 1996) (table), hold that an employee is not entitled to reassignment after turning down other reasonable accommodations. Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997), holds that an employer is not required to reassign in violation of the seniority provisions of a collective bargaining agreement.

Evans v. Gen. Motors Corp., 1997 WL 32936 (2d Cir. Jan. 23, 1997), involved an employee who did not “adequately allege[ ] disability.” Id. at *1. The case does assert in dicta that the ADA does not grant a right to reassignment, but it does not even cite the statute, let alone discuss the reassignment provision. Id.

3. The jury reasonably found that Bryk was qualified to fill at least one vacant position.

The record supports the jury’s verdict that the Hospital failed to provide a reasonable accommodation by not assigning Bryk to the Educational Specialist, Care Transition Coordinator, or Home Health Clinician position. Viewing all evidence in the light most favorable to the EEOC, see Trujillo, 146 F.3d at 845, a reasonable fact-finder could conclude that at least one of these positions was vacant and that Bryk was qualified to fill it.

With respect to vacancies, there is no dispute that the Educational Specialist position was vacant. The Hospital argues that the jury should not have considered this position because it would have been a promotion. (Hosp. Br. at 32) However, Bryk earned more in her then-current job than the minimum salary for an Education Specialist. (Compare Pl. Ex. 47 with Pl. Ex. 27 at 2) The jury, therefore, could reasonably have concluded that the Education Specialist position was not a promotion.

Although the Hospital argued that the Care Transition Coordinator position was not really vacant because it was posted in error, there is no dispute that the hiring official interviewed another applicant and that the position remained posted until May 2012. (R.179, Vol. 2 at 153-54) Thus, the jury could reasonably have concluded that the position was vacant and available at the time Bryk applied.

The jury could also have reasonably concluded that the Home Health Clinician position was vacant because there were postings for three identical positions. The individual who had been hired for one position could easily have been moved to another position. (R.178, Vol. 1 at 117-18; R.179, Vol. 2 at 181)

With respect to qualifications, it is irrelevant that the Hospital’s transfer policy bars employees from applying for a new position if they have not been in their current position for six months or if they have a final written warning in their record. The ADA requires employers to reassign disabled employees without competition to a vacant position for which they are qualified. See infra at 41-52. Employers must disregard most rules of general applicability that conflict with this reassignment obligation. See U.S. Airways v. Barnett, 535 U.S. 391, 397, 122 S. Ct. 1516, 1521 (2002). The cases that the Hospital and amicus curiae EEAC cite for the contrary proposition either pre-date or ignore Barnett and are no longer good law. (Hosp. Br. at 30-31; EEAC Br. at 24-26)

The Hospital does not dispute that its recruiter determined that Bryk was qualified for the Educational Specialist position. (R.179, Vol. 2 at 18, 97-98) With respect to the other positions, the jury heard ample evidence about Bryk’s background and wide-ranging experience, including experience outside her psychiatric specialty. (R.178, Vol. 1 at 76-79, 81-92, 157-58) She had experience providing home health services even while she was working in the Hospital’s psychiatric unit, serving patients whose needs were primarily medical, not psychiatric. (R.180, Vol. 3 at 26-28, 44-46) The hiring official for the Home Health Clinician position considered psychiatric experience to be beneficial. (R.179, Vol. 2 at 176-77)

While the Hospital may not have considered Bryk to be the most qualified candidate for these three positions, Sikes testified that hiring officials are not limited to hiring the most qualified applicants and might instead hire a preferred applicant who “met the qualifications.” (R.178, Vol. 1 at 181) The jury could reasonably have concluded that Bryk’s qualifications were sufficient. Bryk met all of the Hospital’s posted job requirements. (R.84-9 at 1-5, 11-22) It was reasonable for the jury to disregard purported additional requirements that did not appear in the vacancy posting. In “the run of cases,” Barnett, 535 U.S. at 402-03, 122 S. Ct. at 1523, reassigning a disabled employee into a position for which she meets every posted job requirement would certainly be a reasonable accommodation.

This Court should uphold the jury’s finding even if two of the three jobs to which Bryk applied were not vacant and/or Bryk was not qualified for two out of three of them. Reviewing courts must assume that jurors relied on “their own intelligence and expertise” to distinguish factually inadequate theories from factually valid ones. Griffin v. U.S., 502 U.S. 46, 59, 112 S. Ct. 466, 474 (1991). The Supreme Court has explained, “It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance – remote, it seems to us – that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.” Id. (quoting U.S. v. Townsend, 924 F.2d 1385, 1414 (7th Cir. 1991)); see also U.S. v. Browne, 505 F.3d 1229, 1261 (11th Cir. 2007) (reversal is not required simply because some potential grounds for verdict may be factually insufficient as long as there are other potential grounds with adequate factual support).

4. Good faith is not a defense to liability.

Standing alone, the jury’s finding that the Hospital acted in good faith is insufficient to defeat liability. The Hospital points to Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997), to support the proposition that, in some circumstances, an employer’s good faith may be relevant to liability. (Hosp. Br. at 20-23) Stewart, however, makes an employer’s good faith relevant only as part of a larger assessment of the breakdown of the interactive process. The Stewart defense applies only where (1) the employer engages in a good faith effort to identify and provide a reasonable accommodation, (2) the employee does not participate in good faith in the interactive search for an accommodation, and (3) the employee is responsible for the breakdown in the interactive process. Id. at 1287. In such circumstances, where the employer’s failure to provide a reasonable accommodation is attributable not to the employer but to the employee, courts refuse to hold the employer liable for violating the ADA. See Gillard v. Ga. Dep’t of Corrections, 500 F. App’x 860 (11th Cir. 2012) (no liability where employer engaged in interactive process in good faith but employee did not).

Notwithstanding the Hospital’s belated efforts to invoke the Stewart defense, the Hospital did not ask the jury to determine whether Bryk engaged in the interactive accommodation process in good faith. (R.150) Nor did the Hospital ask the jury to determine whether the breakdown in the interactive process was attributable to the Hospital or to Bryk. (Id.) The Hospital now argues that “[t]he Jury could . . . reasonably have found that Bryk’s actions caused a breakdown of the interactive process” and that such a finding would negate liability (Hosp. Br. at 13), but the Hospital ignores the governing standard of review. Once the jury has spoken, this Court must view all evidence in the light most favorable to the prevailing party (here, the EEOC) and must “draw all reasonable inferences and credibility choices in favor of the jury’s verdict.” Trujillo, 146 F.3d at 845.

Viewing all evidence in the light most favorable to the EEOC, this Court must conclude that Bryk participated in the interactive process in good faith. The Hospital asked Bryk to identify and apply for vacant positions within thirty days, and she did so. It was the Hospital, not Bryk, who was responsible for the breakdown of the interactive process. The jury found that reassigning Bryk to one of three identified positions would have been a reasonable accommodation. (R.164 at 1) Having received Bryk’s applications for these jobs, the next step was the Hospital’s.

In addition to its legally misplaced and factually unsupported reliance on Stewart, the Hospital relies on this Court’s pattern verdict form to argue that good faith is a complete defense to liability. (Hosp. Br. at 23-24) That form, the Hospital notes, places the good faith affirmative defense before the undue hardship

affirmative defense and instructs the jury to cease deliberations upon a finding of good faith. (R.190 at 8) However, notes to the pattern jury instructions explain that the only reason the pattern verdict form asks about good faith is because an employer’s good faith is a defense to compensatory and punitive damages. See 11th Cir. Pattern Jury Instr. (Civil), No. 4.12, ADA, Reas. Accom., 42 U.S.C. §§ 12101-12117, Comments (2013), available at http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCivilPatternJuryInstruction.pdf (“where an employee shows that he requested an accommodation, the employer may avoid damages by demonstrating that it in good faith engaged in the interactive process required by the ADA and tried to find a reasonable accommodation . . . .” (citing 42 U.S.C. § 1981a(a)(3) (emphasis added)). Indeed, the Hospital recognized as much in the Joint Pretrial Statement, where its only reference to “good faith” was tied to damages and cited 42 U.S.C. § 1981a(a)(3). (R.128 at 17)

The notes to the pattern jury instructions, limiting the good faith defense to compensatory and punitive damages, are correct. Nothing in section 1981a(a)(3) addresses liability, and the Hospital offers no basis for expanding the scope of the provision. Courts addressing good faith have, accordingly, limited the defense to damages only, not to liability. See EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790, 797 (8th Cir. 2007) (“[A]n employer can avoid paying compensatory damages if the employer shows that it acted in good faith.”); Williams v. Philadelphia Housing Auth. Police Dep’t, 380 F.3d 751, 770 n.14 (3d Cir. 2004) (employer acting in good faith may be liable; good faith is “relevant to the appropriate remedies”) (emphasis added); Teshima v. Runyon, EEOC Appeal No. 01961997, 1998 WL 236476 (May 5, 1998) (finding that because agency acted in good faith, appellant was not entitled to compensatory damages, but awarding injunctive relief nonetheless); see also EEOC Guidance, 2002 WL 31994335, at *6 n.24 (“[I]n situations where an employer fails to provide a reasonable accommodation . . . evidence that the employer engaged in an interactive process can demonstrate a ‘good faith’ effort which can protect an employer from having to pay punitive and certain compensatory damages.”)

The pattern verdict form’s placement of the good faith defense in front of the undue hardship defense is, indeed, misleading. However, a confusing verdict form is not sufficient to override controlling law. As this Court has explained, “Although generally considered ‘a valuable resource, reflecting the collective research of a panel of distinguished judges,’ [the pattern jury instructions] are not binding. Eleventh Circuit case law takes precedence.” U.S. v. Dohan, 508 F.3d 989, 994 (11th Cir. 2007).

5. The Hospital, which bore the burden of proof on the undue hardship affirmative defense, waived any objection to the jury’s failure to reach the issue.

Undue hardship is an affirmative defense. Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997). Accordingly, it was the Hospital’s burden to ensure that the jury considered the issue. See id. (undue hardship must be “pled and proven by an ADA defendant”). The Hospital knew that it could seek modifications to the pattern jury instructions and, indeed, sought modifications of other instructions. (R.150) It could have requested that the verdict form ask about undue hardship before it asked about good faith. It also could have objected to the jury’s failure to reach the undue hardship defense before the court excused the jury. By not doing either one, the Hospital waived its argument that the jury’s failure to consider undue hardship is grounds for reversal. See Coralluzzo v. Educ. Mgmt. Corp., 86 F.3d 185, 186 (11th Cir. 1996) (“all challenges to the inconsistency of special verdicts must be raised before the jury is excused”).

Even if this Court were willing to excuse the Hospital’s waiver, which it should not, the Hospital cannot prove its affirmative defense. Based on the job descriptions, two of the three positions for which Bryk applied did not involve patient care. (R.84-9 at 1-5, 11-22) The hiring manager testified that “psychiatric experience can be beneficial” for the third position. (Id. at 176-77) A reasonable jury could – and did – conclude that Bryk was qualified to perform at least one of these jobs. Under these circumstances, the Hospital’s argument that Bryk would endanger patient safety rings hollow.

B. This Court should vacate the jury’s finding of good faith and remand for a trial limited to compensatory and punitive damages.

The Hospital’s policy of making disabled employees compete for a new position cannot constitute good faith as a matter of law because the ADA requires reassignment without competition. The district court’s hypothetical in which more than one disabled employee competes for a single position (R.126 at 1) would be an unusual circumstance and is factually irrelevant to this case. The district court prejudiced the EEOC by not instructing the jury that the ADA requires reassignment without competition.

Even if the ADA permitted an employer to make a disabled employee compete for reassignment, the district court misled the jury by instructing it that the thirty days that the Hospital gave Bryk to obtain a new job was a reasonable time period as a matter of law. This instruction usurped the jury’s fact-finding role and prevented the jury from evaluating the entirety of the Hospital’s actions.

1. Standard of Review

This Court reviews a district court’s refusal to give a requested jury instruction for abuse of discretion. Watkins v. City of Montgomery, Ala., 775 F.3d 1280, 1289 (11th Cir. 2014). Failure to give a requested instruction constitutes an abuse of discretion when “ʻ(1) the requested instruction correctly stated the law, (2) the instruction dealt with an issue properly before the jury, and (3) the failure to give the instruction resulted in prejudicial harm to the requesting party.’” Booth v. Pasco Cty., Fla., 757 F.3d 1198, 1208 (11th Cir. 2014).

This Court reviews jury instructions de novo to determine whether they misstated the law or misled the jury. Adams v. Austal, USA, LLC, 754 F.3d 1240, 1248 (11th Cir. 2014). Erroneous instructions warrant reversal where the Court is “ʻleft with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.’” Id.

2. The district court should have instructed the jury that the ADA requires reassignment without competition.^{^[2]}

The district court erred by holding that the ADA does not require reassignment without competition. The statute defines “discrimination” to include not making reasonable accommodations for an otherwise qualified individual with a disability, 42 U.S.C. § 12112(b)(5)(A), and includes “reassignment to a vacant position” as a form of reasonable accommodation, id. § 12111(9)(B). An accommodation qualifies as “reasonable” only if it enables the disabled employee to perform the essential functions of the job that she holds or desires. Id.

§ 12111(8); Lucas, 257 F.3d at 1256. The mere opportunity to compete for a job cannot satisfy this standard.

The statutory language makes no sense if allowing a disabled employee to compete for a job qualifies as a reasonable accommodation. As the D.C. Circuit has explained, “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’; the core word ‘assign’ implies some active effort on the part of the employer. Indeed, the ADA’s reference to reassignment would be redundant if permission to apply were all it meant; the ADA already prohibits discrimination ‘against a qualified individual with a disability because of the disability of such individual in regard to job application procedures.’” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc) (citing 42 U.S.C. § 12112(a)); see also Corley v. U.S., 556 U.S. 303, 315, 129 S. Ct. 1558, 1566 (2009) (statutes should be construed so that no part is rendered meaningless, superfluous, or redundant).

The purpose of the reassignment provision confirms that Congress intended to invoke the ordinary meaning of the term “reassignment to a vacant position.” Congress recognized that persons with disabilities as a group “occupy an inferior status in our society and are severely disadvantaged socially [and] economically.” 42 U.S.C. § 12101(a)(6). Consistent with this Congressional finding, the reassignment provision is aimed at enabling employees who would otherwise lose their jobs due to disability to remain in the workforce as long as there is a vacancy for which they are qualified. H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 63 (1990), reprinted at 1990 U.S.C.C.A.N. 303, 345; see Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 801, 119 S. Ct. 1597, 1601 (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.”).

The Supreme Court has acknowledged the general rule that employers using reassignment as a reasonable accommodation may not require qualified disabled employees to compete for vacant jobs. In U.S. Airways v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002), an employee who was otherwise qualified sought “assignment to a particular position” as a reasonable accommodation for his disability, but the placement would violate a disability-neutral policy – there, a seniority system. Id. at 393-95, 122 S. Ct. at 1519. U.S. Airways argued that a seniority system or other disability-neutral workplace policy “virtually always trumps a conflicting accommodation request” because violating such a policy would constitute a “preference,” and the ADA “does not . . . require an employer to grant preferential treatment” but “only ‘equal’ treatment for those with disabilities.’” Id. at 396-97, 122 S. Ct. at 1520-21.

The Barnett Court disagreed. The Court reasoned, “By definition, any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially. 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.” Id. at 397, 122 S. Ct. at 1521. To the contrary, the Court reasoned, “[m]any employers will have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability,” citing examples from the non-exclusive list of accommodations in the ADA’s text. Id. at 398, 122 S. Ct. at 1521 (citing 42 U.S.C. § 12111(9), which includes reassignment). Yet, the Court continued, Congress “said nothing suggesting that the presence of such neutral rules would create an automatic exemption.” Id.; cf. EEOC v. Abercrombie & Fitch Stores, Inc., __U.S. ___, ___, 135 S. Ct. 2028, 2034 (2015) (accommodation for religious practices under Title VII requires affirmative modification of neutral rules).

The Court assumed that a request for reassignment would be reasonable “in the run of cases” because the ADA lists “reassignment to a vacant position” as one type of reasonable accommodation. Barnett, 535 U.S. at 402-03, 122 S. Ct. at 1523 (citing § 12111(9)). However, it would likely not be reasonable in Barnett’s case because of “one circumstance, namely, that the assignment would violate the rules of a seniority system.” Id. at 403, 122 S. Ct. at 1523. The Court based this exception for seniority systems on the special status that seniority systems hold in American labor law and on their importance in labor-management relations. Id. at 403-04, 122 S. Ct. at 1524 (noting that without such an exception, “employees’ expectations of consistent, uniform treatment . . . upon which the seniority system’s benefits depend” would be undermined).

The Hospital in the instant case does not rely on a seniority system to excuse it from placing Bryk in a vacant position without competition; instead, it relies on its purported policy of hiring only the best qualified applicants. “[N]othing

. . . requires the Hospital . . . to complicate one tragedy that befalls a person who’s disabled and unable to work a particular job into two tragedies where another person is denied a job that they’re otherwise entitled to,” the Hospital’s counsel argued. (R.180, Vol. 3 at 132) This reasoning, however, ignores the plain language of the ADA.

Even if the Hospital had a policy of hiring only the best-qualified applicants, which Sikes testified that it does not (R.178, Vol. 1 at 181), a best-qualified policy is precisely the sort of neutral rule for which the ADA demands an exception. The ADA already requires employers with a best-qualified policy to hire a disabled individual if she is the best qualified applicant for the job. 42 U.S.C. § 12112(a). This requirement flows from the ADA’s fundamental purpose of eliminating discrimination against individuals with disabilities. Because the statute’s nondiscrimination provision in § 12112(a) already bars disparate treatment because of disability, the reasonable accommodation obligation in § 12112(b)(5)(A) must require employers to do more. Amicus curiae EEAC, which insists that the ADA is solely about “equal employment opportunity” (EEAC Br. at 21), does not seek to reconcile its position with the statute’s mandate that employers make reasonable accommodations, including reassignment, for otherwise qualified individuals with a disability.

As the Tenth Circuit has explained, allowing employers to circumvent the reassignment obligation through a policy of hiring only the best-qualified applicant would “judicially amend the statutory phrase ‘qualified individual with a disability’ to read, instead, ‘best qualified individual, notwithstanding the disability.’ However, these are not the words as Congress wrote them . . . .” Smith v. Midland Brake, Inc., 180 F.3d 1154, 1167 (10th Cir. 1999) (en banc); see also EEOC Guidance, 2002 WL 31994335, at question 29 (“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.”); id. at question 24 (“The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.”).

The courts of appeals that have grappled most seriously with this issue agree with the EEOC. The Seventh Circuit recently held that “the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012).[3] The Court went on to explain that, unlike the seniority system at issue in Barnett, a policy of hiring the best qualified applicant would not exempt employers from reassigning qualified employees to a vacant position. “While employers may prefer to hire the best qualified applicant,” the Court said, “the violation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy.” Id. at 764.

The Tenth Circuit also holds that reassignment means appointment to a vacant position without competition. In Smith v. Midland Brake, Inc., the Court rejected a definition of reassignment that would impose “no more than a duty merely to consider without discrimination a disabled employee’s request for reassignment along with all other applications the employer may receive from other employees or job applicants for a vacant position.” 180 F.3d at 1164. The Court explained, “[T]he ADA defines the term ‘reasonable accommodation’ to include ‘reassignment to a vacant position.’ The statute does not say ‘consideration of a reassignment to a vacant position.’” Id. Additionally, the Court noted that the ADA lists reassignment as one of several possible reasonable accommodations, including modified work schedules and the provision of qualified readers or interpreters. “There is nothing about a reassignment that transforms it into a lesser accommodation than the others listed, which an employer must not only consider but must also implement if appropriate.” Id. at 1167.

Likewise, the D.C. Circuit holds that reassignment must be without competition. In Aka v. Washington Hospital Center, the Court relied not only on the plain meaning of the word “reassign” but also on legislative history noting that reassignment does not require employers to “bump” other employees out of a position to create a vacancy. 156 F.3d at 1304. “Had Congress intended that disabled employees be treated exactly like other job applicants,” the Court said,

“there would have been no danger that an employee would be ‘bumped.’” Id.

The only Circuits holding to the contrary are the Fifth, Sixth, and Eighth. The Fifth Circuit case, which pre-dates Barnett, refuses to “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.” Daugherty v. City of El Paso, 56 F.3d 695, 709 (5th Cir. 1995). The Sixth Circuit case, which was decided after Barnett but does not cite it, says that even when an employer has an obligation to reassign a disabled employee to a vacant position, “the ADA does not mandate that she be afforded preferential treatment.” Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 459 (6th Cir. 2004). Barnett, of course, clarified that the ADA does, indeed, require preferential treatment in the provision of reasonable accommodations. Barnett, 535 U.S. at 397, 122 S. Ct. at 1521. Neither the Hospital nor amicus curiae EEAC acknowledges this fact.

The Eighth Circuit case, Huber v. Wal-Mart Stores, relies on now-overruled Seventh Circuit law and erroneously reads Barnett’s exclusion for seniority systems as extending to all neutral policies, which it expressly does not. 486 F.3d 480, 483-84 (8th Cir. 2007), cert. granted in part, 552 U.S. 1074 (2007), cert. dismissed on stipulation of the parties, 552 U.S. 1136 (2008). Moreover, contrary to Barnett (and like the Fifth and Sixth Circuits), Huber disagrees that the ADA requires “affirmative action.” Id. at 483.

Although this Court has not yet faced the specific issue, its precedents support a rule that reassignment means without competition. In Holly v. Clairson Industries, LLC, 492 F.3d 1247 (11th Cir. 2007), this Court acknowledged that “the very purpose of reasonable accommodation laws is to require employers to treat disabled individuals differently in some circumstances.” Id. at 1262. And in Willis, the Court noted that “[r]eassignment to another position is a required accommodation only if there is a vacant position available for which the employee is otherwise qualified.” 108 F.3d at 284 (emphasis added). The combined import of Holly and Willis suggests that reassignment must mean more than the opportunity to compete with the general public for a vacant position. Dicta to the contrary in Terrell v. USAir, 132 F.3d 621, 627 (11th Cir. 1998), which states that the ADA does not require “affirmative action,” conflicts directly with the Supreme Court’s subsequent ruling in Barnett and must, therefore, be disregarded.

The Hospital’s discussion of Cazeau v. Wells Fargo Bank, N.A., 614 F. App’x 972 (11th Cir. 2015), is not on point because the employee in that case never applied to a vacant position. (Hosp. Br. at 38-39) Contrary to the Hospital’s representation, this Court did not hold that Wells Fargo reasonably accommodated the employee “by ‘provid[ing him] with resources and information to apply for available positions’ and ‘t[aking] reasonable steps to offer information about available positions.’” (Hosp. Br. at 39) Rather, this Court held that “[b]ecause no specific demand for an accommodation was made, Wells Fargo had no duty to provide a reasonable accommodation under the ADA.” Cazeau, 614 F. App’x at 982.

Limitations on the duty to reassign a disabled employee minimize the impact of mandatory reassignment. Among other things, reassignment need not be offered to prospective employees or to an employee who is entitled to a different job by reason of seniority or who can be accommodated in his current job. Nor need the employer bump another employee, create a new position, promote the employee, violate the terms of a seniority system, or offer a job for which the employee is not fully qualified. See EEOC Guidance, 2002 WL 31994335, at question 24. If the employee is qualified for more than one vacancy, the employer may choose among appropriate positions and need not reassign the employee to the position the employee prefers. Stewart, 117 F.3d at 1286. But see EEAC Br. at 33 (“Mandatory noncompetitive reassignment . . . would enable a disabled employee to effectively choose her accommodation.”). Finally, if an employer can show that a specific reassignment would result in undue hardship, the employer need not offer that accommodation. 42 U.S.C. § 12112(b)(5)(A).

Importantly, an employer sets its own qualification standards. Anyone meeting those standards should therefore be fully capable of doing the job well. “Although the statute does not require that the employee be the ‘best qualified’ employee for the vacant position, it at least ensures the employer that it need not make the reassignment unless the employee is truly qualified to do the job.” Smith, 180 F.3d at 1170.

The district court misunderstood the law and therefore did not instruct the jury that the ADA mandates reassignment without competition. Its failure to give this instruction allowed the jury to find that the Hospital had acted in good faith, notwithstanding its policy that “[w]e don’t reassign.” (R.178, Vol. 1 at 187) No reasonable jury could have found that the Hospital acted in good faith if it had understood the governing law. An employer that makes no effort to implement, and instead disavows, a required accommodation cannot be deemed to have acted in good faith. See EEOC v. MCI Telecomm. Corp., 993 F. Supp. 726, 731 n.10 (D. Ariz. 1998) (“It could hardly have been the intent of Congress to create such an obvious ‘escape hatch’ from liability. Rather, the employer must make a good faith effort to implement the reasonable accommodation before § 1981a[ʼs good faith defense] applies.”).

The district court’s failure to instruct the jury on the requirement for reassigning without competition prejudiced the EEOC and requires this Court to set aside the jury’s good faith finding. See Booth, 757 F.3d at 1208 (failure to give requested jury instruction is abuse of discretion where “(1) the requested instruction correctly stated the law, (2) the instruction dealt with an issue properly before the jury, and (3) the failure to give the instruction resulted in prejudicial harm to the requesting party”).

3. In the alternative, the district court should not have instructed the jury that the thirty-day deadline the Hospital imposed on Bryk for obtaining a new job was reasonable as a matter of law.^{^[4]}

The jury, not the court, should have determined whether the Hospital’s thirty-day deadline for obtaining a new job was reasonable. The erroneous instruction that the deadline was reasonable as a matter of law misled the jury in its determination of the Hospital’s good faith.

A reasonable amount of time “should be determined in light of the totality of the circumstances.’” Boykin v. ATC/VanCom of Colo., L.P., 247 F.3d 1061, 1064-65 (10th Cir. 2001); EEOC Guidance, 2002 WL 31994335, at *21 (same). Neither the courts nor the EEOC have defined the maximum period of time beyond which it is unreasonable as a matter of law for an employer to consider reassignment. Cf. EEOC Guidance, 2002 WL 31994335, at *21 (waiting six months for job to become vacant is unreasonable). Here, where Bryk applied to at least one vacant position for which she was qualified within thirty days, a reasonable fact-finder could conclude that it was unreasonable for the Hospital to fire her before her applications had worked their way through the hiring process.

The district court erred by ignoring the Hospital’s requirement that Bryk obtain a job – not merely apply for a job -- within thirty days. (R.126 at 2-3) The court focused on whether it would have been reasonable for the Hospital to consider Bryk for positions that became available after thirty days, but ignored that Bryk applied to several vacancies within the thirty-day time period. The jury found that she was qualified for at least one of those positions. (R.164 at 1) The reason Bryk was fired after thirty days was not that there was no appropriate job for her within the thirty-day window; it was that the Hospital did not place her into a vacancy for which she was qualified. Bryk, of course, had no control over the timing of the Hospital’s hiring decisions.

Bryk did everything the Hospital asked of her. The Hospital, however, did not do its part. The Hospital has criticized Bryk for not applying to any jobs until three weeks into the thirty-day period, but there is no evidence that the Hospital would have hired her for any of the jobs if she had applied earlier. Typically, the Hospital’s hiring process can last several months. (R.179, Vol. 2 at 122, 152-54) The Hospital made no effort to speed up the process for Bryk (id. at 19) – an omission consistent with its stated policy of not reassigning disabled employees. (R.178, Vol. 1 at 187) And, although the Hospital insists that it was willing to consider Bryk for vacant positions even after her termination (Hosp. Br. at 11), it never interviewed her for any of the positions to which she applied. (R.179, Vol. 2 at 20)

The Hospital demonstrated a lack of good faith in other ways as well. It treated Bryk less favorably than it treated other employees who sought a transfer after “position elimination.” The Hospital gave “position elimination” candidates a recruiter who actively sought out new jobs and brought the candidates to the attention of hiring officials. (R.179, Vol. 2 at 21-22, 81-84) Bryk, however, had to conduct her job search independently. (Id. at 45; R.178, Vol. 1 at 102-03; R.180, Vol. 3 at 48) Moreover, the Hospital did not tell Bryk that she was rejected for the Home Health Clinician position because another applicant had already been hired. (R.179, Vol. 2 at 12) Had Bryk known this fact, she would have applied to other Home Health Clinician positions, three of which were available within the thirty days. (Id.) She testified that she did not apply to those positions because, having been rejected from the first position, she assumed that she would not be hired for the others. (Id.)

By instructing the jury that the Hospital acted reasonably in requiring Bryk to obtain a job within thirty days (and to do so without help from a recruiter), the district court essentially absolved the Hospital of its responsibility to follow up on Bryk’s applications. Even if the court were correct that thirty days was a reasonable period of time to identify an appropriate vacancy, it was not reasonable for the Hospital to fire Bryk after thirty days simply because the Hospital had not yet acted on Bryk’s timely applications.

Instructing the jury that the thirty-day deadline was reasonable as a matter of law shifted the jury’s focus away from the Hospital’s failure to act. This misdirection made it easier for the jury to find good faith and therefore prejudiced the EEOC. This Court should vacate the good faith finding based on this erroneous jury instruction. See U.S. v. Felts, 579 F.3d 1341, 1342-43 (11th Cir. 2009) (erroneous jury instruction is grounds for reversal if reviewing court “‘is left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations’”).

C. This Court should reverse the denial of equitable relief.

A primary goal of the ADA is to make victims of employment discrimination whole, restoring them to the position they would have been in had the discrimination not occurred. See EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1251 (11th Cir. 1997) (explaining in age discrimination case, “The purpose of relief under the federal employment anti-discrimination laws is ‘to make persons whole for injuries suffered on account of unlawful employment discrimination.’”); cf. Gen. Tel. Co. of the NW v. EEOC, 446 U.S. 318, 332, 100 S. Ct. 1698, 1707 (1980) (emphasizing “strong congressional intent to provide ‘make whole’ relief to Title VII claimants”)^{^[5]}. The district court never addressed this consideration and left the EEOC and Bryk without any remedy for Bryk’s illegal termination.

1. Standard of Review

This Court reviews a district court’s decision to grant or deny equitable relief for abuse of discretion. Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012). The Court reviews underlying legal issues de novo. Id.

2. Bryk is entitled to back pay.

The district court denied back pay for two reasons, neither of which is valid. First, the court found that Bryk “did not make a good faith effort to secure a position during the thirty-day period, nor did she otherwise fully engage in the interactive process.” (R.197 at 15) Second, the court reasoned, “The Hospital should not be responsible for back pay in an amount exceeding $100,000 where it acted in good faith.” (Id. at 16)

The court found that Bryk failed to act in good faith solely because she went on a previously scheduled vacation and did not begin applying for jobs until three weeks into the thirty-day period. However, she applied for six jobs before the thirty-day deadline. (R.100-39 at 10-12) The jury found that she was qualified for at least one of them and that the Hospital failed to provide a reasonable accommodation by not reassigning her. (R.164 at 1) Bryk did everything that the Hospital asked of her. Whether she applied on Day 1 or Day 29, she had no control over the Hospital’s decision-making process.

The Hospital introduced no evidence that if Bryk had applied to vacancies at the beginning of the thirty-day period, she would have obtained a job before the expiration of the deadline. Indeed, the Hospital never interviewed her for any job. (R.179, Vol. 2 at 20) Under these circumstances, it is impossible to understand the court’s conclusion that “[d]ue to no fault of the Hospital, Bryk’s inaction contributed to a breakdown of the interactive process.” (Id.) See Porter v. Natsios, 414 F.3d 13, 21 (D.C. Cir. 2005) (court may make factual findings to determine appropriate equitable relief, but court’s findings must be consistent with jury verdict).

The court’s refusal to award back pay because of the Hospital’s good faith is equally perplexing. Even if this Court upholds the jury’s good faith finding, the Supreme Court has expressly held that an employer’s good faith “is not a sufficient reason to deny back pay.” Albemarle Paper, 422 U.S. at 422, 95 S. Ct. at 2373-74. “[U]nder Title VII, the mere absence of bad faith simply opens the door to equity; it does not depress the scales in the employer’s favor. If back pay were awardable only upon a showing of bad faith, the remedy would become a punishment for moral turpitude, rather than a compensation for workers’ injuries. This would read the ‘make whole’ purpose right out of Title VII, for a worker’s injury is no less real simply because his employer did not inflict it in ‘bad faith.’ Title VII is not concerned with the employer’s ‘good intent or absence of discriminatory intent’ for ‘Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.’” Id., 95 S. Ct. at 2374 (citation omitted).

The Albemarle Paper Court rejected the proposition that a district court has unfettered discretion to award or deny back pay under Title VII. “The power to award back pay was bestowed by Congress, as part of a complex legislative design directed at a historic evil of national proportions,” the Court said. Id. at 416, 95 S. Ct. at 2371. “A court must exercise this power ‘in light of the large objectives of the Act.’ That the court’s discretion is equitable in nature hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review.” Id. (citations omitted).

Discussing “the large objectives of the Act,” the Albemarle Paper Court observed that Title VII’s primary purpose was to achieve equal employment opportunities. Id. at 417, 95 S. Ct. at 2371. “Backpay has an obvious connection with this purpose,” the Court said. “If employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality. It is the reasonably certain prospect of a back pay award that ‘provides the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country’s history.’” Id. at 417-18, 95 S. Ct. at 2372-73 (citation omitted).

The statute’s secondary purpose, the Court said, was “to make persons whole for injuries suffered on account of unlawful employment discrimination.” Id. at 418, 95 S. Ct. at 2372. Noting that Title VII’s back pay provision was expressly modeled on the back pay provision of the National Labor Relations Act, the Court said, “We may assume that Congress was aware that the Board, since its inception, has awarded back pay as a matter of course – not randomly or in the exercise of a standardless discretion, and not merely where employer violations are peculiarly deliberate, egregious, or inexcusable.” Id. at 419-20, 95 S. Ct. at 2373-74.

These two objectives, the Court concluded, must govern a district court’s decision to deny back pay. “[G]iven a finding of unlawful discrimination, back pay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Id. at 421, 95 S. Ct. at 2373. An example of such reasons would be failure to mitigate. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32, 102 S. Ct. 3057, 3065-66 (1982) (Title VII claimant “forfeits his right to back pay if he refuses a job substantially equivalent to the one he was denied”).

Like it did with Title VII, Congress intended the ADA to eliminate discrimination and make victims whole for the injuries they suffered. 42 U.S.C. § 12101(b)(1); see also Massey Yardley, 117 F.3d at 1251 (explaining in age discrimination case that purpose of remedies under federal antidiscrimination laws is make-whole relief). As the Supreme Court explained in Albemarle Paper, back pay is a powerful tool for achieving these goals. 422 U.S. at 417-18, 95 S. Ct. at 2373-74.

The ADA’s purpose of making employees whole means that individuals who have suffered large economic injuries are entitled to sizeable back pay awards. The district court denied back pay in part because the award would have exceeded $100,000. (R.197 at 16) This ruling turned the principle of make-whole relief on its head. Contrary to the district court’s reasoning, the ADA demands that employers, not employees, suffer the economic consequences of illegal discrimination.

Denial of back pay in this case was inconsistent with the ADA’s objectives. The district court did not say otherwise. (R.197 at 17) For this reason, this Court should reverse and remand for a calculation of an appropriate back pay award.

3. Bryk is entitled to reinstatement or front pay.

A prevailing plaintiff is presumptively entitled to reinstatement or front pay under federal employment discrimination laws. Weatherly v. Ala. State Univ., 728 F.3d 1263, 1272 (11th Cir. 2013); EEOC v. W&O, Inc., 213 F.3d 600, 619 (11th Cir. 2000). The district court acted within its discretion in holding that reinstatement would be more appropriate than front pay, Lewis v. Fed. Prison Indus., Inc., 953 F.2d 1277, 1281 (11th Cir. 1992), but it erred by refusing to order reinstatement outright. (R.197 at 17) By ordering the Hospital to reinstate Bryk only “if a position is found for which she is equally or better qualified than other applicants” (id.), the court left Bryk in the same position that she would have been in had the EEOC never sued on her behalf.

The district court denied reinstatement because it blamed Bryk for causing the breakdown of the interactive process. (Id.) As explained supra at 35-36, the facts do not support the court’s conclusion. In any event, once a jury has found liability, the district court should order reinstatement in all but the most unusual circumstances, where “discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy.” W&O, 213 F.3d at 619. Where the district court declines to order reinstatement, it should order front pay. Id.

The court’s refusal to order reinstatement, like its refusal to order back pay, ignores the statutory purposes of eradicating discrimination and providing make-whole relief. See Albemarle Paper, 422 U.S. at 417-18. Although the court acknowledged that it “cannot fashion equitable relief in contravention of a jury’s finding that the Hospital ultimately failed to provide a reasonable accommodation” (R.197 at 16), it proceeded to do exactly that. The court’s ruling is erroneous and this Court should reverse.

4. The EEOC is entitled to an injunction.

The EEOC sought a permanent injunction prohibiting the Hospital from refusing to reassign, without competition, disabled individuals to positions for which they are qualified and in which they have expressed interest. The district court denied the injunction because it disagreed with the EEOC that the ADA requires reassignment without competition. (R.197 at 15) For the reasons described supra at 41-52, the district court was wrong.

Uncontroverted evidence shows that the Hospital refuses to reassign disabled employees, with or without competition. (R.178, Vol. 1 at 187) The Hospital defended this policy at trial and Sikes testified that the policy remains in effect. (Id.) Without an injunction, the Hospital is sure to discriminate against future individuals.

Under these circumstances, the EEOC is entitled to injunctive relief. “[T]he EEOC is normally entitled to injunctive relief where it proves discrimination against one employee and the employer fails to prove that the violation is not likely to recur.” Massey Yardley, 117 F.3d at 1253 (citing EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291 (7th Cir. 1993)). This is so because the EEOC litigates in the public interest and “seeks to protect not only the rights of the individual claimant, but those of similarly-situated individuals by deterring the employer from future discrimination.” Id.; see also Gen. Tel., 446 U.S. at 326, 100 S. Ct. at 1700 (“[W]hen the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.”).

Conclusion

The district court correctly held that Bryk is covered by the ADA, and the jury reasonably found the Hospital liable for failing to make a reasonable accommodation for her disability. The Hospital, which bore the burden of proving its undue hardship affirmative defense, waived that defense by not objecting to the jury’s failure to reach that issue.

The jury’s refusal to award compensatory and punitive damages rests on a legally unsupportable determination that the Hospital acted in good faith. This Court should vacate the good faith finding because the district court failed to instruct the jury that the ADA requires reassignment without competition, and because the district court erroneously instructed the jury that the thirty-day period the Hospital imposed on Bryk to obtain a new job was reasonable as a matter of law.

The district court’s refusal to award equitable relief also rests on the jury’s unsupportable finding of good faith. The Supreme Court has held that an employer’s good faith is irrelevant to the award of back pay or injunctions under the federal employment discrimination laws. Back pay, injunctions, and reinstatement or front pay are all presumptively available to prevailing plaintiffs under the ADA, and the district court offered no valid reason for denying such relief here.

For the foregoing reasons, the EEOC respectfully asks this Court to affirm the final judgment for the EEOC and to remand for (1) a new trial limited to compensatory and punitive damages, and (2) an award of back pay, reinstatement, and injunctive relief.

Respectfully submitted,

P. DAVID LOPEZ /s/ Gail S. Coleman

General Counsel Attorney

EQUAL EMPLOYMENT

JENNIFER S. GOLDSTEIN OPPORTUNITY COMMISSION

Associate General Counsel Office of General Counsel

131 M Street, NE, Room 5SW24L

BARBARA L. SLOAN Washington, DC 20507

Acting Assistant General Counsel (202) 663-4055

gail.coleman@eeoc.gov

[1] Amicus curiae EEAC wrongly states that Sikes “reached out to hiring managers on Bryk’s behalf in an attempt to speed up the hiring process.” (EEAC Br. at 15) Sikes, however, testified that this was untrue. (R.179, Vol. 2 at 19)

[2] The EEOC did not object at trial to the district court’s failure to give this instruction because the court had already ruled against the EEOC on this point. (R.126 at 1) A party need not object to the failure to give a jury instruction pursuant to Federal Rule of Civil Procedure 51 to preserve the issue for appeal “where a party has made its position clear to the court previously and further objection would be futile.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999).

[3] The Hospital’s citation to Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667 (7th Cir. 1998), ignores this superseding law. (Hosp. Br. at 31)

[4] The EEOC did not object to this instruction at trial because the court had already ruled against the EEOC on this point. (R.126 at 2-3; R.156; R.178, Vol. 1 at 179-80) A party need not object to a jury instruction pursuant to Federal Rule of Civil Procedure 51 to preserve the issue for appeal “where a party has made its position clear to the court previously and further objection would be futile.” Farley, 197 F.3d at 1329.

[5] Remedies under the ADA are taken directly from Title VII. 42 U.S.C. § 12117(a).