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McBride v. BIC Consumer Prods. Mfg. Co., No. 07-5689 (2d Cir. Oct. 5, 2009)

| Oct 4, 2009 | Daily Developments in EEO Law |

This case presents an important reminder that when an employee in an ADA case seeks a job transfer as a reasonable accommodation, that the record must reflect not only that the employee is qualified for the job but that the transfer does not constitute a promotion.

McBride v. BIC Consumer Prods. Mfg. Co., No. 07-5689 (2d Cir. Oct. 5, 2009): An employee who worked as a utility operator in BIC’s ink cartridge assembly area suffered from respiratory ailments and panic/anxiety attacks, and took medical leave.  She was cleared to return to work, but the employer — instead of assigning her away from chemical fumes (as her doctor recommended) — offered only to provide a respirator.  She declined the proposed accommodation and was eventually terminated when the medical leave expired.

The employee asserted that there were other, vacant positions at the plant that she could have filled, but the employer contended that (1) many of the positions would have constituted a promotion; and (2) the employee lacked the qualifications, training or experience to perform them.

The panel affirms summary judgment on the claim. First, the plaintiff failed in the district court to establish that she could perform the essential functions of her original position, with or without accommodations, and indeed conceded that she was unaware of any accommodations that would allow her to return to the original spot. The panel then considers the idea of reassignment. While acknowledging that “reassignment to a vacant position” may be a reasonable accommodation under the ADA (42 U.S.C. § 12111(9)(B)), the panel notes that the employee bears the burden of proving that a position existed for which she was qualified and could have been reassigned at the time.

The panel finds that the employee failed on two points.  First, for all of the positions she identified in discovery that were vacant at the time, she could not show that she could perform the essential functions of those jobs, i.e., “the fundamental job duties of the employment position[s]” (29 C.F.R. § 1630.2(n)(1)), as defined by the employer as relevant to the position, including education, experience, training and other credentials. Second, virtually all of the positions she identified would have amounted to a promotion, contravening the EEOC’s guidance (29 C.F.R. pt. 1630, app. o).

As the panel summarizes:

“McBride has presented no evidence that, at or about the time of her termination, there existed a vacant position at BIC for which she was qualified and reassignment to which would not have involved her promotion. The record indicates that reassignment to most of the jobs that were vacant at the time of McBride’s termination would have required BIC to promote McBride. In addition, BIC’s descriptions of the vast majority of vacant positions indicate that they required extensive applicable professional experience, proficiency with a variety of business software packages, and, in many cases, a college degree. McBride has provided no evidence challenging the conclusion that reassignment to such positions would have amounted to a promotion or indicating either that BIC’s job descriptions do not adequately describe the essential functions of and requisite qualifications for the identified positions or that she possessed the requisite educational background or professional skills and experience. Neither her conclusory assertion in an affidavit that she was qualified for the n-available positions nor her counsel’s unsubstantiated statements before the district court remedy this defect. Moreover, McBride’s initial application for employment at BIC, while admittedly many years old, suggests that she does not possess the necessary qualifications for the positions bearing these characteristics. These positions, then, cannot qualify as positions to which McBride could have been reassigned as an accommodation for her disability.”

The employee also contended that the employer failed to engage in the “interactive process” to develop a plan of accommodation to allow the employee to return to work (29 C.F.R. § 1630.2(o)(3)). But the panel holds that the stand-alone denial of such a process does not violate the ADA: “[A]n employer’s failure to engage in a sufficient interactive process does not form the basis of a claim under the ADA and evidence thereof does not allow a plaintiff to avoid summary judgment unless she also establishes that, at least with the aid of some identified accommodation, she was qualified for the position at issue.”

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