Equal Employment Opportunity Commission v. Methodist Health System and Methodist Charlton Medical Center
Memorandum Opinion and Order: Before the court is the plaintiff's motion to alter or amend the court's judgment dated November 4, 2016 (docket entry 44 ). For the reasons stated above, the EEOC's motion to alter or amend the judg ment entered November 4, 2016 is DENIED. The Memorandum Opinion and Order of November 4, 2016 is supplemented as described above. Methodist's motion for summary judgment on the EEOC's pattern or practice claim is GRANTED. (Ordered by Senior Judge A. Joe Fish on 3/9/2017) (ndt)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
METHODIST HOSPITALS OF DALLAS )
d/b/a METHODIST HEALTH SYSTEM, )
CIVIL ACTION NO.
MEMORANDUM OPINION AND ORDER
Before the court is the plaintiff’s motion to alter or amend the court’s
judgment dated November 4, 2016 (docket entry 44). For the reasons stated below,
the motion is denied. The court set forth the background of this case in the
memorandum opinion and order granting the judgment which is the subject of this
motion. See Memorandum Opinion and Order of November 4, 2016 (“Order”)
(docket entry 42).
A. Motion to Alter or Amend
“A motion to alter or amend the judgment under Rule 59(e) must clearly
establish either a manifest error of law or fact or must present newly discovered
evidence and cannot be used to raise arguments which could, and should, have been
made before the judgment issued.” Schiller v. Physicians Resource Group Inc., 342 F.3d
563, 567 (5th Cir. 2003) (internal quotation marks omitted). Importantly, a “Rule
59(e) motion is not proper to re-litigate matters that have been resolved to the
movant’s dissatisfaction” and a party cannot attempt to obtain a “second bite at the
apple” on issues that were previously addressed by the parties and the court.
Alvarado v. Texas Rangers, No. EP-03-CA-0305-FM, 2005 WL 1420846, at *2 (W.D.
Tex. June 14, 2005). “Reconsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly.” Templet v. HydroChem Inc., 367
F.3d 473, 479 (5th Cir.), cert. denied, 543 U.S. 976 (2004).
The EEOC contends that while the court addressed Methodist’s reassignment
policy as applied to Cook, the court did not address the EEOC’s broader pattern or
practice claim. Plaintiff’s Motion to Alter or Amend Judgment at 2-3 (docket entry
44). Methodist responds that the EEOC did not sufficiently allege a “pattern or
practice” claim in its complaint and, therefore, the court did not err in not addressing
it. Defendant’s Response to Plaintiff’s Motion to Alter or Amend Judgment at 3
(docket entry 45). While the EEOC’s pattern or practice claim could have been
alleged more clearly, the court agrees with the EEOC that its broader policy claim
should be decided.* Accordingly, the EEOC’s claim is addressed below.
B. EEOC’s Pattern or Practice Claim
In the complaint, the EEOC alleges that
Since at least March 2012, defendant has maintained an
unlawful policy of requiring individuals with disabilities
who require reassignment as a reasonable accommodation
to compete for vacant positions for which they are
qualified and of selecting the best qualified candidate.
Complaint ¶ 20. In its response to Methodist’s motion for summary judgment, the
EEOC first points out that “[u]nder the ADA, ‘reasonable accommodation’ includes
‘reassignment to a vacant position.’” Response to Defendant’s Motion for Summary
Judgment (“EEOC’s Summary Judgment Response”) at 26 (docket entry 31) (citing
42 U.S.C. § 12111(9)(B)). The EEOC argues that the plain language and legislative
history of the ADA show that “reassignment means appointment, not simply the
opportunity to compete with everyone else.” Id. at 26. “Congress chose to treat
current employees differently from job applicants,” the EEOC avers, and merely
providing employees with the “opportunity to compete,” is not an accommodation at
Other courts have held that the EEOC did not plead a “pattern or
practice” claim without using the phrase “pattern or practice.” See, e.g., Equal
Employment Opportunity Commission v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918,
933 (N.D. Iowa 2009) (“The EEOC squarely pled a violation of § 706. The EEOC
did not plead a violation of § 707, and the phrase ‘pattern or practice’ -- a phrase
with which the EEOC is familiar -- appears nowhere in the EEOC’s Complaint.”).
all. Id. at 26-27. The EEOC cites the Supreme Court’s decision in U.S. Airways, Inc.
v. Barnett, 535 U.S. 391 (2002), for the proposition that “reasonable accommodation
incorporates the possibility of granting what can be viewed as a preference in order to
maintain the employment of a disabled individual.” Id. at 28.
Methodist disagrees with the EEOC that it “is required to reassign a disabled
employee to a vacant position for which that employee meets the minimum
qualifications, regardless of whether that employee is the most qualified applicant.”
Defendant’s Brief in Support of its Motion for Summary Judgment (“Defendant’s
Summary Judgment Brief”) at 19 (docket entry 28). Methodist maintains that this
amounts to affirmative action, which is not required by the ADA. Id. (citing Guerra v.
United Parcel Service, Inc., 250 F.3d 739, 2001 WL 274296, at *3 (5th Cir. 2001)).
Methodist further contends that the ADA permits Methodist to require a disabled
employee to compete with non-disabled applicants and hire the most qualified
candidate for a position. See Defendant’s Reply to the EEOC’s Response to the
Motion for Summary Judgment (“Summary Judgment Reply”) at 15 (docket entry
Not all of the circuits are in agreement on the issue. The EEOC contends that
three circuits have held that requiring a disabled employee to compete for
reassignment does not fulfill an employer’s duty of reasonable accommodation.
EEOC’s Summary Judgment Response at 30 (“Three federal circuit courts, sitting en
banc, hold that the duty to accommodate under the ADA requires reassignment
without competition”). The EEOC cites E.E.O.C. v. United Airlines, Inc., 693 F.3d
760 (7th Cir. 2012), cert. denied, -- U.S. --, 133 S. Ct. 2734 (2013); Aka v. Washington
Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998); and Smith v. Midland Brake, Inc., a
Division of Echlin, Inc., 180 F.3d 1154 (10th Cir. 1999). Id. However, the only case
cited by the EEOC that was decided after the Supreme Court’s Barnett decision,
United Airlines, Inc., did not decide this issue. See 693 F.3d at 764. Rather, the
United Airlines, Inc. court remanded the issue to the district court to determine
whether “mandatory reassignment is ordinarily, in the run of cases, a reasonable
accommodation . . . [and] if there are fact-specific considerations particular to
United’s employment system that would . . . render mandatory reassignment
unreasonable in this case.” Id. Methodist, on the other hand, cites the Eighth
Circuit’s post-Barnett decision, Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th
Cir.), cert. granted, 552 U.S. 1074 (2007), cert. dismissed, 502 U.S. 1136 (2008).
Summary Judgment Reply at 16. In Huber, the Eighth Circuit addressed the issue at
hand, stating, “We agree and conclude the ADA is not an affirmative action statute
and does not require an employer to reassign a qualified disabled employee to a
vacant position when such a reassignment would violate a legitimate
nondiscriminatory policy of the employer to hire the most qualified candidate.” 486
F.3d at 483 (citing Turco v. Hoechst Celanese Corporation, 101 F.3d 1090, 1094 (5th
The Fifth Circuit has not directly addressed the issue of whether the ADA
requires an employer to reassign a disabled employee as a reasonable accommodation.
Nonetheless, Methodist correctly contends that the weight of Fifth Circuit authority
holds that the ADA does not entitle a disabled employee to preferential treatment.
Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995) (holding that the ADA
does not require affirmative action “in the sense of requiring that disabled persons be
given priority in hiring or reassignment over those who are not disabled”), cert. denied,
516 U.S. 1172 (1996), holding modified by Kapche v. City of San Antonio, 304 F.3d
493 (5th Cir. 2002); Foreman v. Babcock & Wilcox Company, 117 F.3d 800, 810 (5th
Cir. 1997) (“Regardless, even if there were no CBA in place, B & W would not be
obligated to accommodate Foreman by reassigning him to a new position.”), cert.
denied, 522 U.S. 1115 (1998); Turco, 101 F.3d at 1094.
This court believes that the Fifth Circuit’s position on the instant issue is
aligned with that of the Eleventh Circuit in United States Equal Employment Opportunity
Commission v. St. Joseph’s Hospital, Inc., 842 F.3d 1333 (11th Cir. 2016) -- which is
directly on point. St. Joseph’s involved a nurse who became injured and unable to
perform her job due to back pain. Id. at 1338. The nurse sought the accommodation
of reassignment. See id. at 1338-39. Pursuant to the hospital’s policy of hiring the
most qualified applicant, the nurse was required to compete with other non-disabled
applicants. See id. at 1338. The EEOC brought suit contending “that the [h]ospital
violated the ADA by not reassigning [the nurse] to a vacant position without
requiring her to compete with other applicants for those jobs.” Id. at 1340. The
Eleventh Circuit held “that the ADA does not require reassignment without
competition for, or preferential treatment of, the disabled.” Id. at 1345. Relying on
Daugherty, the St. Joseph’s court agreed with the Fifth Circuit’s conclusion that the
ADA does not require affirmative action and “only requires an employer allow a
disabled person to compete equally with the rest of the world for a vacant position.”
Id. at 1346-47.
The St. Joseph’s court also specifically addressed the EEOC’s contention that
Barnett requires reassignment. The St. Joseph’s court first distinguished Barnett, noting
that, unlike Barnett, the case before it did not involve a seniority or a civil service
system. Id. at 1346. However, it found that the first prong of the Barnett framework
-- whether the plaintiff’s proposed accommodation is reasonable in the run of cases -was instructive in deciding the case before it. Id. The St. Joseph’s court affirmatively
stated that “[r]equiring reassignment in violation of an employer’s best-qualified
hiring or transfer policy is not reasonable ‘in the run of cases’” and held that the ADA
does not require mandatory reassignment. St. Joseph’s Hospital, Inc., 842 F.3d 1333,
1346. This court agrees with the reasoning of St. Joseph’s. The EEOC has not
demonstrated that Methodist’s policy of requiring disabled employees to compete
with non-disabled applicants to hire the best candidate runs afoul of the ADA. Thus,
Methodist’s motion for summary judgment is granted as to the EEOC’s pattern or
For the reasons stated above, the EEOC’s motion to alter or amend the
judgment entered November 4, 2016 is DENIED. The Memorandum Opinion and
Order of November 4, 2016 is supplemented as described above. Methodist’s motion
for summary judgment on the EEOC’s pattern or practice claim is GRANTED.
March 9, 2017.
A. JOE FISH
Senior United States District Judge
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