• Reasonable Accommodation Does Not Entitle Disabled Worker to Position Held by Temp, Circuit Rules
  • July 15, 2010 | Authors: Michael A. Griffin; Joseph J. Lynett
  • Law Firms: Jackson Lewis LLP - Seattle Office ; Jackson Lewis LLP - White Plains Office
  • The duty to reasonably accommodate a disabled employee under the Americans with Disabilities Act did not require an employer to reassign the employee to a position filled by a temporary-contract worker because that position was not “vacant,” as the ADA contemplates, the federal appeals court in Denver has held.  Duvall v. Georgia-Pacific Consumer Products, L.P., No. 08-7096 (10th Cir. June 9, 2010).  According to the Court, a “vacant” position under the ADA is one that would be available for a similarly-situated non-disabled employee to apply for and obtain.  Because the employee could not establish that non-disabled workers could apply for and fill positions held by temporary contract workers, the Court affirmed summary judgment in the employer’s favor.

    The Facts
    Travis Duvall worked in the shipping department of a paper mill owned by Georgia Pacific (“GP”).  He had cystic fibrosis, an inherited disease that affects the lungs. In December 2005, GP decided to outsource its shipping operations to Network Logistics Solutions (“NLS”).  Once the outsourcing was completed, the only remaining jobs in the shipping department were palletizer positions.  GP employees in the shipping department were given the opportunity to bid on the palletizer positions and for other jobs in the plant.  As GP employees left the shipping department, they were replaced by temporary contract workers who remained until the NLS staff took over.

    Duvall did not have the seniority to bid for a palletizer position, but, in February 2006, he bid on and obtained a position in the converting department.  The air in that department contained high levels of paper dust and by April 2006, Duvall began to experience difficulty in breathing.  His pulmonologist recommended that he avoid paper dust.  In early May 2006, the pulmonologist gave him a permanent work restriction of no “paper dust in air.”
    As a reasonable accommodation, Duvall requested that he be restored to his former position, which was then occupied by a temporary contract worker, or given a position in the mill’s storeroom.  GP refused Duvall’s request to be restored to his shipping position and initially denied his request to be placed in the storeroom because GP was considering whether to outsource that department and was using temporary employees to fill positions in the storeroom.  Duvall took a disability leave of absence.
    In July 2006, GP decided not to outsource the storeroom and offered Duvall a position as a storeroom clerk at a lower pay rate.  Duvall accepted the position and thereafter sued under the ADA, claiming that GP failed to reasonably accommodate his disability by immediately reassigning him either to a shipping or storeroom position.
    The district court granted summary judgment in favor of GP.  It held, in agreement with the employer, that the shipping department and storeroom positions filled by temporary workers were not “vacant” at the time of Duvall’s reasonable accommodation request.  Duvall appealed and argued that positions in the shipping department and storeroom were vacant because they were filled by temporary workers.

    Appeals Court Decision
    The Tenth Circuit affirmed.  Reciting that the ADA, among other things, prohibits employers from failing to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” 42 U.S.C. § 12112(b)(5)(A),  and  that a “reasonable accommodation” may include “reassignment to a vacant position,”  42 U.S.C. § 12111(9)(B), the Court observed that the ADA did not define “vacant” and no other court has addressed the meaning of the term under the ADA.

    Seeking guidance, the Court rejected the interpretation given by the agency charged with administering the Act.  The Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act states that “vacant” means “that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.”  The Court found this definition tautological and therefore unhelpful in answering the question presented in Duvall, however, because “asking whether a position filled by a temporary employee is ‘available’ is no different . . . from asking whether it is ‘vacant.’”
    Examining the meaning of the term within the “context of the statute as a whole,” the Court held that a position is vacant “if it would be available for a similarly-situated non-disabled employee to apply for and obtain.”  The Court determined that to interpret the term in any other way would “run the risk” of transforming the ADA from a non-discrimination statute into a “mandatory preference statute.”
    Concluding that Duvall could not establish that the positions in shipping or in the storeroom were vacant, “such that other, nondisabled GP employees would have been able to apply for and obtain them,” the Court affirmed summary judgment in favor of GP. The evidence showed that GP intended to staff these positions with temporary contract workers until NLS took over the shipping department or until GP later decided to retain operation of the storeroom.  Because these positions were not available to any GP employee at the time Duvall sought reassignment, his ADA claim failed.

    Implications for Employers
    This case is a significant win for common sense and for employers.  In our view, it provides a sound basis for urging other courts to adopt a like interpretation. The EEOC, however, is unlikely to change its Enforcement Guidance on this issue because of the case.

    Employers outside the Tenth Circuit states of Colorado, Utah, New Mexico, Wyoming, Kansas, and Oklahoma, therefore, should continue to exercise caution when analyzing transfers to “vacant” positions as a reasonable accommodation under the ADA.