United States of America v. Woody et al, No. 3:2016cv00127 - Document 72 (E.D. Va. 2016)

Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 11/22/2016. (tjoh, )
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United States of America v. Woody et al Doc. 72 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. Dockets.Justia.com 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