Courts are split over whether, under the ADA, employers who are able to reassign incumbent employees to accommodate their disabilities must do so outside of a normal competitive, "best-qualified" application process. The Eleventh Circuit this week joined the fray, holding that employers do not need to abandon a so-called "best-qualified" policy for filling vacancies, even as a reasonable accommodation.
EEOC v. St. Joseph's Hospital, Inc., No. 15-14551 (11th Cir. Dec. 7, 2016): This case went to trial on a theory that the employee, a nurse named Bryk, should have been considered for three vacancies to accommodate a walking disability that required the use of a cane. She was deemed not qualified for her former position in the defendant hospital's psychiatric ward, because her cane could pose a hazard, i.e., a patient could seize it and use it as a weapon.
The hospital did not slot her in any of the positions, instead requiring her to apply as an external candidate:
"The Hospital allowed Bryk 30 days to identify and apply for other positions. 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. Bryk met nneither criteria. However, the Hospital waived the requirements. The Hospital allowed Bryk to compete with other internal applicants, as opposed to being in the general pool of job applicants. Although the Hospital authorized Bryk to apply through internal channels as an active employee, all of Bryk's job applications were as an external applicant."
The hospital defended that for the three respective positions (1) she was turned down for the first for lack of medical surgical and educational experience, (2) the position was filled for the second before she applied, and (3) the third position was not actually available and posted in error.
On the hospital's summary judgment motion, the district court held that There was a genuine dispute of material fact about reasonable accommodation. But it clarified that it was "not hold[ing] that the Hospital had an obligation to reassign [Bryk] to the vacant positions for which she qualified without competition as a matter of law," and allowing competition was "one factor, out of many, that the jury may consider regarding the reasonableness of the accommodation."
While the jury found that the hospital denied Bryk a reasonable accommodation, it also found that the hospital discharged its ADA duty to accommodate in good faith and entered its verdict for the defendant in accordance with the verdict form. On a post-trial motion, though, the district court entered an injunctive order requiring the hospital to consider reinstatement of Bryk based on the reasonable accommodation finding. (Ultimately, Bryk was not rehired.)
The Eleventh Circuit affirms the jury verdict, vacates the reinstatement order, and directs entry of a judgment for the employer. In the course of its 35-page opinion, the panel discusses the extent of an employer's duty to reassign disabled employees.
After concluding that the district court correctly held that Bryk was disabled and otherwise qualified for the vacancies, the panel reaches the central issue in the appeal: "the district court's holding as a matter of law that the ADA does not mandate reassignment without competition." The EEOC argued "that the ADA mandates noncompetitive reassignment" and the jury should have been so instructed.
The panel holds that There is no such obligation, as a reasonable accommodation, to excuse disabled employees from applying through a normal competitive process. While reassignment to a vacancy is an accommodation expressly provided under the ADA (42 U.S.C. § 12111(9)(B) ("[t]he term 'reasonable accommodation' may include . . . reassignment to vacant position"), that panel observes that the statute "does not say how an employer must do that."
The panel cites the framework of U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), which held that employers under the ADA need not deviate from a collectively-bargained seniority system to accommodate a disabled worker. The court holds that a best-qualified policy for filling vacancies is comparable:
"Requiring reassignment in violation of an employer's best- qualified hiring or transfer policy is not reasonable "in the run of cases." As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel. Undermining a hospital's best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients."
The panel cites decisions from the Fifth and Eighth Circuits that supposedly uphold such "best-qualified" policies. Yet at least three circuits have held otherwise. EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012) ("[t]he Supreme Court has found [in Barnett] that accommodation through appointment to a vacant position is reasonable," thus "[a]bsent a showing of undue hardship, an employer must implement such a reassignment policy"); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1169 (10th Cir. 1999) ("requiring the reassigned employee to be the best qualified employee for the vacant job, is judicial gloss unwarranted by the statutory language or its legislative history"); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc) ("the reassignment obligation means something more than treating a disabled employee like any other job applicant"). While the panel attempts to distinguish these cases in a footnote, an actual review of the decisions themselves belies the panel's effort to avoid a split.
The panel also holds that the 30-day period to look for other work was reasonable as a matter of law, in light of the hospital's willingness to hold the period open if she was still actively engaged in a job search.
The panel finally holds that, while There was sufficient evidence to support the jury's verdict that Bryk was denied a reasonable accommodation, the agreed theory of the case was that proof of good faith vitiated liability. for that reason, the injunctive order could not find support in the jury's defense verdict. However erroneous that theory might be under the statute ("good faith" under 42 U.S.C. § 1981a(a)(3) provides only relief from damages, not liability), a Rule 59(e) motion was too late to correct the mistake.