United States of America v. Woody et al
Filing
72
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 11/22/2016. (tjoh, )
p
p
IN THE UNITED
FOR THE
STATES DISTRICT
u
NOV 2 2 2016
COURT
1
i
EASTERN DISTRICT OF VIRGINIA
CLERK, U.S. District cou-
Richmond Division
RICHMOr^D, VA
UNITED STATES OF AMERICA,
Plaintiff,
Civil Case No.
V.
3:16-cv-127
C.T. WOODY, JR., SHERIFF, CITY
OF RICHMOND, in his official
Capacity, et al..
Defendants.
MEMORANDUM OPINION
This
matter
is
before
the
Court
on
MOTION FOR SUMMARY JUDGMENT {''U.S. Mot."),
as
the
(ECF
DEFENDANT'S
No.
States'
MOTION
FOR SUMMARY
31) .
For
the
reasons
motion
for
summary
set
judgment
the
UNITED
(ECF No.
JUDGMENT
forth
will
29),
as well
(''Def.
Mot."),
below,
be
STATES'
the
denied,
United
and
the
defendant's motion for summary judgment will be granted.
I.
The
United
States
BACKGROUND
filed
this
action
on
behalf
of
Emily
Hall, a former employee of the Sheriff of the City of Richmond,
Virginia,
alleging violation of Title I of the Americans with
Disabilities Act of 1990,
Act").
The
remaining
42 U.S.C. § 12111 et seg.
Defendant
is
Sheriff
C.T.
(ADA or ''the
Woody,
Jr.
C'Woody"), appearing in his official capacity, as Sheriff of the
City of Richmond.^ The relevant facts are undisputed.
A. Undisputed Facbs
Hall began working as a Deputy Sheriff in 2003.
3) .
In September 2012,
cardiomyopathy
that,
and
supraventricular
pacemaker
failure.
to
implanted
treat
tachycardia,
conditions
would substantially limit the operation
of her cardiovascular system.
doctors
Mot.
Hall was diagnosed with familial dilated
without treatment,
Hall's
(U.S.
an
JA.
at
internal
these
4.
On September 21,
cardiac
conditions
and
2012,
defibrillator
to
prevent
and
heart
Id.
Hall's health condition and restrictions prevented her from
performing
Sheriff,
direct
Given
the
namely
contact
her
essential
that
with
condition
all
functions
Deputy
inmates
and
or
this
of
her
Sheriffs
job
must
be
as
a
able
other
individuals.
essential
function,
Deputy
to
JA.
the
have
at
5.
parties
agree that no accommodation could have enabled Hall to remain a
Deputy
Sheriff.
required
(and
JA, ;
timely
see
also
Def.
requested)
Mot.
27.
reassignment
Hall
to
civilian position to remain employed by the Sheriff.
therefore
a
vacant
(U.S.
Mot.
5) .
^ The Complaint also named, as a defendant, ''the Richmond City
Sheriff's Office," a non-existant entity. By Memorandum Opinion
and Order entered on May 2, 2016 (ECF Nos. 16, 17), the action
was dismissed as to that entity.
In January of 2012,
then
head
of
the
Sheriff's Office,
vacant.
at
minimum
Human
that a
7.
The
to
(HR)
Department
at
the
Payroll Technician position had become
agree
necessary
the
informed by Billie Windzor,
Resources
parties
qualifications
reassignment
Hall was
job
that
for
would
Hall
the
have
possessed
position,
and
accommodated
the
that
Hall's
disability. Id.^
Eight other applications were submitted for the position of
Payroll Technician.
(U.S.
Mot.
9).
All
of these
applications,
except for Hall's, were from candidates not then employed by the
Sheriff.
JA.
position,
Four
during
applicants
which
they
received
were
interviews
ranked
according
for
to
the
their
comparative qualifications under the department's own internal
evaluation
dispute,
these
system.
that
Hall
metrics.
^ Although
Woody
was
the
(Woody
the
qualified
for
time,
United
the
lA.
Mot.
parties
several
least
2;
has
Resp.
disputed
vacancies
since
and
qualified
U.S.
initially
other
States
contends,
that
conceded
the
U.S.
does
interviewee
1).
Hall
whether
arose
that
under
did
not
Hall
was
during
the
not
only
this
ADA
claim presented by its complaint was Woody's decision not to
reassign Hall to the vacant Payroll Technician position. Summ.
J. Hr'g Tr. 34:19-35:5 (ECF No. 71). The United States initially
maintained
were still
his hiring
burden on
vacancies
irrelevant
that the circumstances surrounding these vacancies
relevant to whether Woody had consistently applied
policy, but later conceded that it had not met its
the consistency issue. JA. at 90:14-91:5. The other
discussed
in
the
parties'
briefs
are
therefore
to the issue presented on summary judgment.
receive
the
Payroll
Technician
position.
Instead,
the
most
qualified applicant was hired.
The
parties
official,
''most
agree
neutral,
qualified"
arises.
{Def.
Mot.
that
the
Sheriff
has
and maintains
and non-discriminatory policy of
candidate
4;
for
Resp.
U.S.
each
1)
position
or
an
hiring the
vacancy
that
Woody contends that he has
consistently followed this ''most qualified'' hiring policy in the
past,
and the United States has conceded that
not
indicate
Furthermore,
otherwise.
the
hiring policy was
parties
Summ.
agree
J.
that
Hr'g
the
Tr.
Woody's
followed with respect
record does
"most
to the
vacant Payroll Technician position in question.
90:14-91:5.^
qualified"
filling
In other words,
the parties agree that Hall was not reassigned to the
Technician position because,
Resp.
Payroll
notwithstanding her disability,
was not the most qualified applicant for the job.
U.S.
of the
(Def.
Mot.
she
2;
1). The issue presented in this case is whether that
decision nonetheless violated the ADA.
B. Procedural History
Sometime on or before October 10,
charge
of discrimination with
Commission
(EEOC)
the
2013,
Equal
Hall filed a timely
Employment
Opportunity
alleging that Woody discriminated against
^ From newspaper articles,
the Court is aware that,
her
in the past.
Woody was criticized for hiring several relatives. There is,
however, nothing in the record on that subject and nothing to
indicate the qualifications of any relative that Woody may have
hired.
in
violation
of
accommodation.
incorporated
the
(U.S.
by
ADA
Mot.
12)
reference
believe
violation
failed,
that
of
the
the
Woody
EEOC
referred
{ECF
March
No.
2,
18) .
the
the
filed
2,
its
September
2016,
and Woody did
to
22,
2016
(ECF No.
37,
argument
reasons
the
was
heard
in
38)
on
stated on the
trial
response
the
this
Federal
court
"shall
Rule
to
the
grant
EEOC
Hall
in
efforts
United
(ECF No.
Answer
the
(ECF No.
("U.S.
on
29,
States
were
filed
record at
to
2016
No.
that hearing,
be
continued
Civil
summary
JUDGMENT
on
The
35)
on
ECF
September
and oral
68) .
For
the
the Court ordered
generally,
(ECF No.
pending
67).
STANDARD
Procedure
judgment
these
Resp.,"
Reply"),
(ECF
2016
31).
ECF No.
cross-motions
18,
16,
ECF No.
Resp.,"
Reply," "Def.
in this
filed
(''Def.
("U.S.
1)
May
parties
same
SUMMARY
of
the
conciliation
resolution of the motions for summary judgment
II.
2000e-5,
against
the
October
case
an
2016,
filed
Replies
§
12117(a),
EEOCs
matter
United States
36) .
reasonable
U.S.C.
discriminated
Woody
September
No.
§
a
The EEOC found reasonable cause
cross-motions for summary judgment
16,
42
filed the Complaint
2016.
On
U.S.C.
her
Id.
The United States
on
Id.
After
Department of Justice.
case
42
had
ADA.
denying
Pursuant to
in
investigated Hall's charge.
to
by
56(a)
if
the
instructs
movant
that
shows
a
that
there is no genuine issue as to any material fact and the movant
5
is entitled to judgment as a matter of law.''
56(a).
verdict
for
any
to
reasonable
nonmoving party."
242,
248
disputed
372, 380
such that a
evaluating
favorable
always
is
the
477 U.S.
When
56,
R.
Civ.
P.
A genuine issue of material fact exists under Rule 56
''if the evidence
Inc.,
Fed.
Anderson
v.
Liberty Lobby,
(1986).
a
motion
''facts
the
jury could return a
for
must
nonmoving
summary
be
party."
Scott
under
Rule
in
viewed
judgment
light
most
the
v.
Harris,
550
U.S.
(2007). In general, the "party seeking summary judgment
bears
the
initial
responsibility
of
informing
the
district court of the basis for its motion" and "demonstrat[ing]
the absence of a genuine issue of material fact."
V.
Catrett,
477
to
provided
317,
323
endorse
continues
U.S.
this
general
more
specific
(1986).
Although
framework,
instruction
Celotex Corp.
to
the
it
Court
has
courts
also
assessing
"reasonable accommodation" claims under the ADA.
In
United States
two-step,
under
U.S.
the
391,
v.
Barnett,
the
Supreme Court
endorsed a
burden-shifting framework for assessing claims arising
"reasonable
accommodation"
401
To survive summary judgment,
(2002).
provision
of
the ADA.
535
the employee
must first demonstrate that the accommodation he or she requests
"seems reasonable on its face,
cases."
1^.
"then must
If
show
the
i.e.,
plaintiff makes
special
ordinarily or in the run of
this
showing,
(typically case-specific)
the
employer
circumstances
that
demonstrate
circumstances."
If
the
reasonable
undue
hardship
in
the
particular
at 4 02.
accommodation
in
the
run
requested
of
cases,
by
the
summary
employer will usually be appropriate.
employee
judgment
at 403
is
not
for
the
(''The statute
does not require proof on a case-by-case basis that a seniority
system should prevail.'-).
accommodation
would
plaintiff-employee
be
Nevertheless,
unreasonable
''nonetheless
even where the requested
in
the
remains
run
free
special circumstances warrant a finding that
'accommodation'
is
405.
In Barnett,
the
seniority
'reasonable'
.
at
to
.
cases,
show
issue,
what
a
that
lA.
showing
of
"special
The
plaintiff might
show,
for
example,
that
the
employer,
having retained the right to change the
seniority system unilaterally,
exercises that right
fairly frequently, reducing employee expectations that
the system will be followed—to the point where one
more departure,
needed to accommodate an individual
with a disability, will not likely make a difference.
The plaintiff might
show that
the
system already
contains exceptions such that, in the circumstances,
one further exception is unlikely to matter. We do not
mean these examples to exhaust the kinds of showings
that a plaintiff might make. But we do mean to say
that the plaintiff must bear the burden of showing
special circumstances that make an exception from the
seniority system reasonable in the particular case.
And to do so, the plaintiff must explain why, in the
case,
an
exception
to
at
in the context of
circumstances" might entail:
particular
the
. the requested
on the particular facts."
the Court further explained,
system
of
the
employer's
seniority
policy
can
constitute
a
''reasonable
accommodation" even though in the ordinary case it
cannot.
Id.
at
405-06.
The
United
States
concedes
that
demonstrated ''special circumstances" in this case,
rests
its
summary
judgment
position
only
on
it
has
not
and therefore
the
theory
that
reassignment would ordinarily be "reasonable" for employees like
Hall,
where the presence of a nondiscriminatory "most qualified"
hiring
policy
would
hiring
a
qualified
Hr'g Tr.
more
otherwise
but
resulted
non-disabled
in
the
applicant.
employer
Summ.
J.
90:14-91:5.
III.
The ADA was
national
have
consistent,
with
enacted
"to provide
a
for
mandate
individuals
THE ADA
elimination
of
the
disabilities"
enforceable
and
standards
clear
"to
and comprehensive
discrimination
provide
clear,
addressing
Congress
expressly found
that
strong,
discrimination
against individuals with disabilities." 42 U.S.C.
passing the ADA,
against
§ 12101(b).
In
"the continuing
existence of unfair and unnecessary discrimination and prejudice
denies people with disabilities the opportunity to compete on an
equal basis and to pursue those opportunities for which our free
society is justifiably famous." 42 U.S.C.
To
accomplish
"discrimination
these
against
a
goals,
qualified
the
§ 12101(a)(8).
ADA
individual
prohibits
on
the
basis
all
of
disability in regard to job application procedures,
advancement,
job
or
training,
employment."
different
discharge of employees,
and
42
U.S.C.
ways
prohibition
other
conditions,
and
§
12112(a).
The
Act
employers
may
violate
against
discrimination.
compensation,
privileges
which
in
'"discrimination"
terms,
employee
then
Among
the hiring,
details
this
of
the
general
other
things,
includes:
not making reasonable accommodations to the known
physical
or
mental
limitations
of
an
otherwise
qualified individual with a disability who is an
applicant or employee, unless such covered entity can
demonstrate
undue
that
hardship
the
on
accommodation
the
operation
would
of
the
impose
an
business
of
such covered entity.
42 U.S.C.
12112(b)(5)(A).
The phrases "reasonable accommodation" and ''undue hardship"
are
further
defined
by
the
statute.
Section
1211(9)(A)-(B)
provide that "the term 'reasonable accommodation' may include":
(A)
making
existing
readily accessible to
disabilities;
facilities
and usable
used by employees
by individuals with
and
(B)
job restructuring,
part-time or modified work
schedules,
reassignment
to
a
vacant
position,
acquisition or modification of equipment or devices,
appropriate
adjustment
or
modifications
of
examinations,
provision
other
of
similar
disabilities.
training
qualified
materials
readers
accommodations
or
for
or
policies,
interpreters,
individuals
the
and
with
42
U.S.C.
issue
§
12111
presented
provisions
(9) (A)-(B) (emphasis
in
mandate
employers must
this
that,
depart
case
as
from
is
an
added).
whether
dispositive
these
accommodation
their neutral
The
of
statutory
last
resort,
and nondiscriminatory
policy of hiring the most qualified candidate for a vacancy in
order
to
reassign
other words,
the
ADA
Payroll
was
a
this
case
required
the
Technician
the
position,
least
minimally
qualified
requires
Sheriff
position,
qualified
the
to
to
person
being
In
determine whether
Hall
notwithstanding
employee.
to
the
the
fact
considered
disability.
Vacant
that
she
for
the
For the
reasons
the Court concludes that i t does not.
IV.
Because
Court
reassign
simply because she had a
outlined below,
disabled
the
Fourth
DISCUSSION
Circuit
has
not
squarely
addressed
the
question in this case,^ the Court approaches it as a matter of
^ Woody argues that this case is controlled by Myers v. Hose, 50
F.3d
278
(4th
Cir.
1995),
in
which
the
Fourth
Circuit
stated
that "'the duty of reasonable accommodation does not encompass a
responsibility to provide a disabled employee with alternative
employment when the employee is unable to meet the demands of
his present position." JA. at 284. But, the Fourth Circuit has
since
distinguished
that
language
as
dicta
''contrary
to
congressional direction and [] in no way required by our Myers
decision." Williams v. Channel Master Satellite Sys., Inc., 101
F.3d 346,
350
(4th Cir.
1996).
Reliance on Myers
is
thus
inappropriate. The Court does take note of the Fourth Circuit's
more recent
instruction that
''[t]he ADA does
not
require
employers to penalize employees free from disability in order to
vindicate the rights
Corp. , 237 F.3d 349,
of disabled workers." E.E.O.C. v. Sara Lee
355 (4th Cir. 2001). However, because this
language is also dicta (and from a distinguishable context), the
10
statutory interpretation. And the ''preeminent canon of statutory
interpretation .
.
statute
means
what
it
. presume [s]
and
there." Connecticut Nat.
(1992) .
Therefore,
that the legislature says in a
means
Bank v.
in
a
statute
Germain,
what
503 U.S.
it
249,
says
253-254
the ''inquiry begins with the statutory text,
and ends there as well if the text is unambiguous." BedRoc Ltd.,
LLC
V.
V.
United States,
541 U.S.
United States Trustee,
176,
540 U.S.
A.
United
employers
so would
States'
to
cause
reasonable
position
provide
an
526,
in
"may
case.
provisions
inconclusive:
then,
will
if
be
constitute
direction
together,
because
reassignment
42
U.S.C.
include,"
required
an
is
if
"undue
given,
the
plain
the
it
is
among
however,
other
meaning
the
to
when
as
is
given
but
required,
possible,
it
No
And
Putting
clear
are
employer.
a
doing
things,
12111(9).
accommodation
for
requires
12112(b)(5)(A).
''reasonable,unless
burden"
support
unless
accommodations"
only
not
ADA
accommodations,"
"reasonable
is
does
The
"reassignment to a vacant position." 42 U.S.C.
these
see also Lamie
(2004).
statute
this
burden."
accommodations
534
of the
"reasonable
"undue
(2004);
The Text
A straightforward reading
the
183
it
would
further
accommodation,
including reassignment, would be "reasonable."
Court does not rely on Sarah Lee to resolve the present case.
The Court reaches the same conclusion implied by Sarah Lee, but
does so without giving i t controlling weight.
11
Notwithstanding this lack of clear direction,
the ''findings
and purpose" section of the ADA persuade the Court that Congress
did
not
intend
the
statute.
In
express
Nation's
proper
its
ADA
goals
to
operate
findings.
regarding
as
an
affirmative
Congress
declared
individuals
with
action
that
"the
disabilities
are to assure equality of opportunity," and that ''the continuing
existence of unfair and unnecessary discrimination and prejudice
denies people with disabilities the opportunity to compete on an
equal basis and to pursue those opportunities for which our free
society
is
(emphasis
justifiably
added).
famous."
These
express
they do not conclusively prove,
eliminate
barriers
Americans,
not
to
This
conclusion
act:
"to provide a
the
elimination
to
further
of
construction
details
of
that
a
provisions—it
holes." Whitman v.
employees
with
the
teach,
facing
a
if
disabled
competitive
express
by
the
purpose
edge.
of
the
sense
"does
scheme
one might
not
in
alter
vague
say,
of
the
principle
hide
American Trucking Assns.,
12
individuals
with
(emphasis added).
interpretation
common
Congress
not,
against
§ 12101(b)(1)
regulatory
does
opportunity
discrimination
equal-opportunity
confirmed
certainly
clear and comprehensive national mandate for
disabilities." 42 U.S.C.
This
§ 1201(a) (7)-(8)
that Congress passed the ADA to
disabled
consistent
U.S.C.
findings
equal
grant
is
42
of
the
terms
statute
statutory
fundamental
or
elephants
Inc.,
is
ancillary
in mouse
531 U.S.
457,
468
(2001) ;
134
S.
Ct.
Corp.,
Corp.
see also E.P.A.
1584,
1612
U.S.
120,
529
V.
v.
EME Homer City Generation,
(2014);
FDA v.
159-160,
American Telephone
Brown
(2000);
L.P.,
& Williamson Tobacco
MCI
Telecommunications
& Telegraph Co.,
512
U.S.
218,
231
(1994) . This principle provides helpful guidance to the Court as
it considers whether Congress has
regime
for
argues)
by
that
the
including
''reasonable
things,
in
Indeed,
and
the
done
to
so
(as
""def initions"
accommodations
''reassignment
§ 12111(9)(B)
had
disabled,
created an affirmative action
a
may
vacant
the
United
section
include,"
position."
of
States
the
among
See
42
ADA
other
U.S.C.
(internal quotations omitted).
i t would be quite surprising to learn that Congress
required
employers
to
make
hiring
decisions
exclusively
based on disability in an act that affirmatively prohibits that
conduct
and
that
opportunity." ^
of
statutory
surprising
expressly
42 U.S.C.
requirement,
given
the
aims
to
achieve
§§ 12101(a)(8),
if
"equal
12112(a). That type
enacted,
far-reaching
only
might
and
further
be
counter-intuitive
consequences it would cause for other protected classes within
the
workforce.
interpretation,
employee
who
For
a
example,
twenty-five
required
under
year
reassignment
the
old
would
white
United
States'
male
disabled
automatically
get
a
position even over a more qualified sixty-five year old black
female employee who lacked a disability.
13
It strains plausibility
and the norms
of statutory interpretation beyond recognition to
conclude that Congress has made that far-reaching decision,
and,
moreover,
of
that
it
has
statutory provision
done
so
in
describing
"'inay include." 42 U.S.C.
The view of the
the
what
definitional
""reasonable
section
accommodations"
§ 12111 (9) (B) (emphasis added).
United States to the
contrary is based on
arguments culled from decisions in the Tenth and D.C.
Relying on those
superficial
decisions,
ambiguity
a
in
the
the
United States
statutory
scheme
asserts
can
be
Circuits.
that
any
resolved
not by common sense or the express findings and purposes of the
act,
but
by
surplusage).
the
interpretative
(U.S.
Mot.
superfluity
(or
Quoting the Tenth Circuit,
17-18).
canon
the
United States argues
that
reassignment
circumstances
in
the
failure
to
against
read the ADA as mandating
of
this
reassignment provision superfluous,"
reassignment
language merely requires
case
at 17,
"'renders
the
because ""if the
employers to
consider on
an equal basis with all other applicants an otherwise qualified
existing employee with a disability for reassignment to a vacant
position,
to
that language would add nothing to the obligation not
discriminate,
Midland
Brake,
and
Inc.,
would
180
thereby
F.3d
1154,
14
be
redundant."
1164-65
(10th
Smith
Cir.
v.
1999).
That interpretation misapplies the canon against
superfluity,
a
tool of construction that already has only limited utility.^
It
effect
is
correct
is given to all
inoperative
United
But,
ambiguous,
also
or
a
""statute
556
should
its provisions,
superfluous,
States,
omitted).
is
that
U.S.
void
303,
or
be
314
so
that
so that no part will be
insignificant."
(2009)
even assuming that the
Corley
(internal
settled
that
''[l]anguage
in
in
some
reassignment provision is
a
statute
contexts
This
is
especially
is
that
not be pertinent." United States v. Turkette,
(1981).
v.
citation
(a necessary prerequisite for the canon to apply),
superfluous merely because
n.5
construed
relevant
not
rendered
language may
452 U.S.
when
it
576,
583
interpreting
'"reassignment to a vacant position" under the ADA because the
statute expressly provides only that it
accommodation." 42 U.S.C. § 12111(9)
"may" be a ""reasonable
(emphasis added).
^ The Supreme Court has emphasized the limited value of this
canon. See, e.g., Lockhart v. United States, 136 S. Ct. 958, 966
(2016) (""Our hesitancy to construe statutes to render language
superfluous
does
not
require
us
to
avoid
surplusage
at
all
costs. It is appropriate to tolerate a degree of surplusage.");
Marx V.
Gen.
Revenue Corp.,
133 S.
Ct.
1166,
1177
(2013)
(""The
canon against surplusage is not an absolute rule."); Arlington
Central School Dist. Bd. of Ed. v. Murphy,
548 U.S.
291,
299 n.l
(2006) (""While it is generally presumed that statutes do not
contain surplusage, instances of surplusage are not unknown.");
Connecticut
Nat.
(""Redundancies
Bank
across
v.
Germain,
statutes
drafting....") .
15
are
503
not
U.S.
unusual
249,
events
253
in
Contrary
decisions
the
ADA
on
as
render
it
Absent
to
the
which
position
it
something
the
free
to
redundant
ADA's
of
relies,
less
with
''always
not
language,
an
to
employers
may
not
under
does
employer
But,
the
not
discriminate.
disabled employee who cannot be
language,
and
reassignment
accommodated in his or her current position.
reassignment
States
mandatory"
obligation
reassignment
terminate a
United
interpreting
than
the
the
would
be
reasonably
because of the
fire
such
a
person
without first seeking to place the employee in a vacant position
for
which
he
or
she
circumstances
exist
unreasonable,
then
is
qualified.
that
make
reassignment
employer.
Notwithstanding
Circuits,
nothing
about
the
a
Furthermore,
potential
will
views
this
be
of
if
reassignment
required
the
no
DC
interpretation
of
and
the
Tenth
renders
the
reassignment provision ''redundant." To the contrary, this is the
only reading of the statute that gives effect to every term.^
The
United
States
also
cites
to
the
D.C.
Circuit
for
the
argument that, by definition, reassignment "must mean more than
allowing an employee to apply for a job on the same basis as
anyone
else . . . the
core
word
'assign'
implies
effort on the part of the employer." Aka v.
^ By contrast,
(that
last
statute.
Hosp.
active
Ctr.,
the extreme view offered by the United States
reassignment
resort)
Wash.
some
reads
is
always
the words
Similarly,
the
required
as
an
accommodation
of
"may" and "reasonable" out of the
view
mandatory makes the same mistake.
16
that
reassignment
is
never
156 F.3d 1284,
1304
(D.C.
Cir.
1998);
see also U.S.
Mot.
19-21.
This argument too is unpersuasive.
To begin,
the
argument
consideration
of
accommodation.
However,
States
has
an
is
based on
employee
for
neither
identified
any
the
a
the
strawman that mere
vacancy
is
Circuit
that
entity
D.C.
has
somehow
nor
the
advanced
an
United
such
an
argument or any decision holding that ''considering" an employee
for
a
vacancy
satisfies
''consideration"
disability.
the
somehow
ADA
in
the
"accommodates"
sense
the
Nor has any court suggested that,
that
employee's
by "considering"
an employee for a vacancy, the employer has somehow "reassigned"
them. Thus, the argument posits no circumstance that its central
premise needs to address.
Moreover,
the
argument
fundamentally
misapprehends
the
statutory scheme. The inclusion of reassignment on the list of
possible reasonable accommodations simply obliges employers to
consider whether
accommodation
therefore
of
last
required.
reassignment
require
reassignment
would
deviation
of
the
resort,
See
would
Barnett,
not
be
from
a
disabled
535
reasonable,
be
employee,
"reasonable,"
U.S.
i.e.
well-established
as
at
an
and
401.
When
it
would
because
seniority
system,
employers do not violate the ADA by failing to provide it. lA.
The
reason
somehow
why,
provided
importantly,
a
is
"reasonable
17
not
that
the
accommodation"
employer
by
has
merely
considering
that,
the
after
disabled
considering
determined that
The
for
reassignment,
a
vacancy,
the
but
employer
rather
correctly
reasonable accommodation was possible.
United
provision,
employee
States'
interpretation
of
the
reassignment
which mirrors the EEOC's guidance on the subject,^
precludes even that possibility.
It
claims
instead that
^'[t]he
plain language of the statute requires an employer to reassign a
qualified employee with a disability to a vacant position when
reassignment is a necessary accommodation."
{U.S.
Mot.
3). As
has already been explained, this absolute view of the statute is
untenable
because
''necessary"
for
it
the
substitutes
statutory
word
(literally)
the
''reasonable,"
and
word
it
is
firmly foreclosed by Barnett, where the Supreme Court rejected
any
reading
"reasonable"
535 U.S.
391,
'reasonable'
The
EEOC's
of
"reasonable
with
"effective."
399-400
does
not
(2002)
mean
interpretive
accommodation"
U.S.
Airways,
that
Inc.
equated
v.
Barnett,
("[I]n ordinary English the word
'effective'
guidance
...
provide
a
that
demand
for
an
reassignment
"jnust be provided to an employee who, because of a disability,
can no longer perform the essential functions of his/her current
position." EEOC,
No. 915.002,
Enforcement Guidance:
Accommodation and Undue Hardship
Disabilities Act (2002)
(emphasis
Reasonable
Under the Americans with
in original). The guidance
specifies that "[t]he employee does not need to be the best
qualified individual for the position in order to obtain it as a
reassignment." Id. The Court holds, and the United States agrees
(see Summ. J. Tr. 5:13-14), that this interpretation of the ADA
is entitled only to Skidmore deference. See Skidmore v. Swift &
Co.,
323 U.S.
134
(1944) .
18
effective accommodation could prove
impact .
Court
.
.")(emphasis
confirmed
in
added).
Barnett
reasonable
accommodation
aggressive
interpretation
In
that
provision
of
unreasonable because of its
the
other
the
words,
plain
Supreme
meaning
umambiguously
ADA
the
advocated
of
the
precludes
the
by
the
United
States and the EEOC.®
Reassignment
ADA,
even
United
as
an
States
reasonable
to
vacancy
is
not
accommodation
of
last
contends
in
cases
interpretation
runs
purpose
of
a
the
ADA.
that
like
this
one,
to
even
the
Nevertheless,
issue,
in
mandated
resort.
reassignment
counter
judicial authority on this
always
would
this
And
by
the
while
the
generally
more
be
moderate
clear
equal-opportunity
light
of
the
the Court assumes
split
of
arguendo
that at least some ambiguity in the statutory scheme remains. To
resolve that ambiguity,
it is appropriate to "look[]
to other
indicia of congressional intent such as the legislative history
to interpret the statute. Lee v. Norfolk S.
626
(4th Cir.
Ry. Co.,
802 F. 3d
2015).
® The Court therefore holds
that the EEOCs
guidance lacks the
''power to persuade." See Skidmore, 323 U.S. at 141. Furthermore,
even
if
the
more
deferential
EEOC's
''always
mandatory"
"manifestly contrary to the
Chevron
standard
interpretation
statute"
(and
applied,
would
remain
Barnett),
and
therefore not entitled to deference. See Chevron, U.S.A.,
V. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
19
the
Inc.
B. Legislative History
To
shed
the
light
extent
on
that
legislative history of the ADA can
Congressional
text already teaches:
give
the
preferences
intent,
it
only
confirms
what
the
that the ADA does not require employers to
in
hiring
to
disabled
persons,
thereby
discriminating against those without a disability.
The most cited and relevant legislative history of the ADA
comes
from
the
committee
Education and Labor,
ADA.
Although
accommodations"
report
of
the
House
Committee
on
which reported out the bill that became the
that
report
provision
addressed
only
briefly,
the
it
'^reasonable
went
into
much
greater detail in its explanation of ''discrimination against a
qualified individual with a disability." The report explained:
By including the phrase "qualified individual with a
disability," the Committee intends to reaffirm that
this legislation does not undermine an employer's
ability to choose and maintain qualified workers. This
legislation simply provides that employment decisions
must
not have
qualified
the purpose or effect of subjecting a
individual
with
a
disability
to
discrimination on the basis of his or her disability.
Thus, under this legislation an employer is still free
to select applicants for reasons unrelated to the
existence or consequence of a disability. For example,
suppose an employer has an opening for a typist and
two persons apply for the job, one being an individual
with a disability who types 50 words per minute and
the other being an individual without a disability who
types 75 words per minute.
The employer is permitted
to choose the applicant with the higher typing speed,
if
typing
speed
is
necessary
performance on the job.
20
for
successful
On the other hand,
if the two applicants are an
individual with a hearing impairment who requires a
telephone headset with an amplifier and an individual
without a
disability,
both of whom have the same
typing speed, the employer is not permitted to choose
the individual without a disability because of the
need to provide the needed reasonable accommodation to
the person with the disability.
In the above example, the employer would be permitted
to reject the applicant with a disability and choose
the other applicant for reasons not related to the
disability or to the accommodation or otherwise not
prohibited by this legislation. In other words, the
employer's obligation is to consider applicants and
make
decisions
without
regard
to
an
individual's
disability, or the individual's need for a reasonable
accommodation.
But,
the employer has no obligation
under this legislation
to prefer applicants with
disabilities over other applicants on the basis of
disability,
H.R.
REP.
101-485,
55-56,
1990
U.S.C.C.A.N.
303,
337-38
(emphasis added).
Although some of this guidance might conceivably only apply
to
outside
applicants
rather
than
employees
seeking
reassignment, the language of the report is not so limited. To
the extent that legislative history has interpretive value,
Court finds
that
it also contradicts the
the
interpretation of the
United States.^
® Neither the Tenth nor D.C.
Circuit addressed this part of the
legislative history, notwithstanding that both courts referenced
to, and relied on, the same committee report elsewhere in their
opinions. See Smith v. Midland Brake, Inc., a Div. of Echlin,
Inc.,
180 F.3d 1154,
1162
(lOth Cir.
1999); Aka v.
Hosp. Ctr., 156 F.3d 1284, 1301 (D.C. Cir. 1998).
21
Washington
Notwithstanding
the
plain
text,
purpose,
and
legislative
history of the ADA,
the United States contends that the Supreme
Court's
Barnett
case,
decision
and
E.E.O.C.
for
that
Reply 6).
cites
V.
in
heavily
to
United Airlines,
proposition.
(U.S.
compels
the
its
Seventh
interpretation
Circuit's
Inc.,
693 F.3d 760
Mot.
24-29,
U.S.
in
this
decision
(7th Cir.
Resp.
in
2012),
8-12,
U.S.
Because the Court believes that the Seventh Circuit's
original
and
Keeling,
Inc.,
more
thorough
227 F.3d 1024
the
decision
in
(7th Cir.
proper
E.E.O.C.
2000)
v.
Humiston-
overruled by United
Airlines,
reached
interpretation
addresses
the position outlined by the Seventh Circuit
subsequent United Airlines decision
of
the
ADA,
it
in the
(and the United States
in
its motion for summary judgment) analyzing Barnett.
C. US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)
In Barnett,
the
the
''reassignment"
employers
to
Supreme Court
obligation
deviate
seniority system.
from
an
rejected the
imposed
by
the
established,
argument
ADA
that
required
non-discriminatory
In answering ''no" to that question,
however,
the Supreme Court commented somewhat broadly on the topic of
"preferences," and the United States now relies heavily on that
comment.
Responding
to
the
broad argument
that
the
ADA never
"require[s] the employer to grant a request that, in violating a
disability-neutral
rule,
would
provide
397, the majority countered:
22
a
preference,"
at
While linguistically logical, this argument fails to
recognize
what
the
Act
specifies,
namely,
that
preferences will sometimes prove necessary to achieve
the
Act's
basic
equal
opportunity
goal.
The
Act
requires
preferences
in
the
form
of
''reasonable
accommodations"
that
disabilities
to
are
needed
obtain
for
the
those
same
opportunities
that
those
without
automatically
enjoy.
By
definition
""accommodation"
requires
the
employer
with
workplace
disabilities
any
special
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. Were that not so,
the
"'reasonable
accomplish
fact
accommodation"
its
that
provision
intended objective.
an
""preference"-in
accommodation
the
sense
that
.
could
.
.
would
it
The
not
simple
provide
would
a
permit
the
worker with a disability to violate a rule that others
must obey-cannot, in and of itself, automatically show
that the accommodation is not ""reasonable."
Id. at 397-98 (emphases in original); see also U.S. Mot. 25.
On
the
basis
of
this
language
alone
and
without
further
analysis of the statute, the Seventh Circuit reversed its prior
decision
in
Inc.,
693
that
this
Humiston-Keeling.
F.3d 760,
may
be
761
a
See
(7th Cir.
close
E.E.O.C.
2012)
question,
we
v.
now
survive Barnett.").
Seventh
the
previously
adopted
characterized
interpretation
as
Airlines,
(""While we understand
Humiston-Keeling did not
Circuit
United
""affirmative
make
clear
that
In doing so,
of
the
ADA
action
it
with
the
had
a
vengeance." 227 F.3d at 1029. The United States argues that this
Court must do the same.
(U.S.
Mot.
23
27-28).
The United States also notes
in Barnett
that
"[w]e
would be
reasonable
not
one
for
violate the
United
also
assume
within
Supreme Court's
that
normally
the meaning of
circumstance,
rules
the
namely,
that
of a
F.3d
the
Airlines,
at
764,
such
request
statute,
at
n.3.
a
were
assignment
seniority system."
693
the
statement
402;
The
it
would
see also
United
States
seemingly reads this language to mean that seniority systems are
the
only
exception
reassignment,
a
to
an
position
otherwise
that
it
categorical
supports
by
rule
mandating
pointing
to
the
Supreme Court's focus on the ''employee expectations" inherent in
a seniority system. See Summ. J. Hr'g Tr. 12:24-13:25.
These
arguments
misunderstand
and
misapply
the
Supreme
Court's guidance in Barnett. Relying on the Seventh Circuit, the
United
States
emphasizes
the
Supreme
Court's
instruction
that
''preferences will sometimes prove necessary" under the Act. But
like the
Seventh Circuit,
the
United States
ignores
the
clause
that immediately follows and explains when preferences may prove
necessary:
See U.S.
Resp.
States,
like
correctly
opinion,
the
at 12
the
points
(selectively quoting Barnett).
Seventh
out,
the
Circuit,
very
next
also
ignores,
sentence
in
The United
as
the
Woody
Court's
which explains that these "preferences" must come "in
form
those
"to achieve the Act's basic equal opportunity goal."
of
with
^reasonable
disabilities
accommodations'
to
obtain
24
that
the
are
same
needed
for
workplace
opportunities
enjoy."
that
Barnett^
also Def.
those
535
Reply at
8.
without
U.S.
at
disabilities
397
(emphasis
in
automatically
original);
see
This language unambiguously provides that
the preferences necessary under the act are only those required
to level the playing field for disabled employees,
The Court
therefore
finds
that
United Airlines
nothing more.
lacks
persuasive
value.
Consistent
the
Court
with
holds
here
the
Supreme
that
the
Court's
ADA does
guidance
not
in
require
Barnett,
minimally
qualified disabled employees to be granted special preferences
in hiring over non-disabled applicants.
Mart
Stores,
the same);
1995)
Inc.,
486
F.3d 480,
Daugherty v.
2001)
(8th Cir.
City Of El Paso,
(holding the same);
(4th Cir.
483
See also Huber v.
EEOC v.
2007)
56 F.3D 695
Sara Lee Corp.,
Wal-
(holding
(5th Cir.
237 F. 3d 349
(implying the same conclusion in dicta) .
Where
an employer maintains a non-discriminatory policy of hiring the
most qualified candidate,
(in the run of cases)
it would not ordinarily be reasonable
to require deviation from that policy in
order to accommodate a minimally but
applicant.
lesser qualified disabled
This interpretation of the statute is the only one
consistent with the plain text and clear purpose of the ADA, and
it is ''bolstered," not undercut,
in
Barnett.
See
Huber,
486
by the Supreme Court's analysis
F.3d
25
at
493.
Therefore
summary
judgment
for
the
United
States
will
be
denied,
and
summary
judgment for Woody will be granted.
The
United
Court
notes
States
suggesting
reasonable
was
still
that
for
that,
a
in
free
Hall,
See Barnett
the
to
reassignment
Barnett
show
''most
framework,
''special
would
including
consistently applied his
past.
under
circumstances"
nonetheless
evidence
qualified"
that
dispute
of
over
basis
for
a
Nevertheless,
it
was
denial
unreasonable).^®
consistency
hiring
policy
of
although
States
from
in
could
Woody's
there
Woody's
conceded
not
in
the
was
At
"most
the
argument
sufficient
evidence
that
any
this
See Summ.
J.
some
for
of
that
has
nonthe
judgment.
on
this
(alleging past
the
not
circumstances"
90:14-91:13,
a
dispute
policy),
it
least,
formed
summary
initial
"special
Hr'g Tr.
very
conceivably have
qualified"
oral
reassignment
application
motion
at
case.
has
hiring policy
point, see U.S. Resp. 12-13 and U.S. Reply at 4-5
deviation
been
{holding that "fairly frequent" deviation from
the
discriminatory
have
Woody
seniority system could rebut the conclusion that
violation
the
ECF No.
United
presented
exist
71
in
("The
record does not have sufficient evidence one way or the other on
This
caveat
from Barnett makes
sense.
Evidence
that
a
policy
has been routinely ignored in hiring decisions raises the danger
that the policy is currently being used pretextually to prevent
an
otherwise
qualified disabled person
from obtaining the
position. In such circumstances, rather than require employees
or employers to litigate the mental process behind a hiring
decision, the ADA may well require reassignment.
26
that issue to try that issue."}
Summary judgment for Woody will
therefore be granted.
V.
For
for
the
Summary
Defendant's
reasons
outlined
Judgment
Motion
CONCLUSION
for
{ECF
above,
No.
Summary
the
29)
United
will
Judgment
(ECF
States'
Motion
be
denied,
No.
31)
will
granted, and this action will be dismissed with prejudice.
It
is
so ORDERED.
/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date:
November
2016
27
the
be
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