Smith v. Midland Brake, Inc.

180 F.3d 1154

9 Am. Disabilities Cas. (BNA) 738; 1999 Colo. J. C.A.R. 3824

GENEVA M. SMITH, as the administrator of the estate of Robert W. Smith, deceased, Plaintiff-Appellant v. MIDLAND BRAKE, INC., a division of Echlin, Inc., Defendant-Appellee. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; JACK DAVOLL, DEBORAH CLAIR, PAUL ESCOBEDO; EQUAL EMPLOYMENT ADVISORY COUNCIL; and CITY AND COUNTY OF DENVER, Amici Curiae.

No. 96-3018

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

June 14, 1999, Filed

Les E. Diehl of Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, Kansas, for Plaintiff-Appellant.

Daniel M. Shea (James Allan Smith and Robert K. Haderlein, of Smith, Currie & Hancock, L.L.P., Atlanta, Georgia, and Mary Kathleen Babcock of Foulston & Siefken Law Offices, Wichita, Kansas, with him on the briefs) for Defendant-Appellee

C. Gregory Stewart, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory of the Equal Employment Opportunity Commission, Washington D.C, filed an amicus curiae brief for the Equal Employment Opportunity Commission in support of Plaintiff-Appellant. David C. Feola of King, Minning, Clexton & Feola, L.L.C., Denver, Colorado, and Marille E. Langhoff of the Law Office of Marilee Langhoff, Littleton, Colorado, filed an amicus curiae brief for Jack Davoll, Deborah Clair, and Paul Escobedo in support of Plaintiff-Appellant.

Ann Elizabeth Reesman, Ellen Duffy McKay and Douglas S. McDowell of McGuiness & Williams, Washington, D.C., and Daniel E. Muse, Denver City Attorney, J. Wallace Wortham, Jr., Denver Assistant City Attorney Supervisor, Sybil R. Kisken, Denver Assistant City Attorney, City and County of Denver, Colorado, filed an amicus curiae brief for the Equal Employment Advisory Council and the City and County of Denver in support of Defendant-Appellee.

Before SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges. KELLY, Circuit Judge, joined by BALDOCK and BRORBY, Circuit Judges, concurring in part and dissenting in part

EBEL

OPINION OPINION ON REHEARING EN BANC

EBEL, Circuit Judge.

In this en banc appeal, we are required to answer two questions concerning the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. 1 First, whether an employee can be a "qualified individual with a disability" when that employee is unable to perform the essential functions of his or her present job, regardless of the level of accommodation offered, but could perform the essential functions of other available jobs within the company with or without a reasonable accommodation. The answer to that question, we find, is yes. Second, if a person is a "qualified individual with a disability" and a reasonable accommodation is not available to enable that employee to perform the essential functions of his or her existing job, what is the scope of the employer's obligation to offer that employee a reassignment job?

We review the district court's grant of summary judgment de novo. See 19 Solid Waste Dept. Mechanics v. City of Albuquerque, 156 F.3d 1068, 1071 (10th Cir. 1998); White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "In determining whether the evidence presents a genuine issue of material fact, we view it in the light most favorable to the party against whom summary judgment was entered," here Plaintiff-Appellant Robert Smith. Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998) (en banc).

Background

The facts of this case are reported in the original panel opinion, see Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th Cir. 1998), and we briefly restate them here. 2 Plaintiff-Appellant Robert Smith was employed by Defendant-Appellee Midland Brake for nearly seven years in the light assembly department to assemble and test small air valve components of air brakes for large vehicles. Through this job, Smith came into contact with various chemicals, solvents, and irritants, and eventually developed muscular injuries and chronic dermatitis on his hands, see id. at 1307. Smith's maladies were so severe that his physicians restricted his work activities by recommending that he avoid exposure to potential contact irritants and, on several occasions, by ordering him not to work at all for limited periods. See id. Smith has admitted that his physicians considered him "permanently disabled" and unfit to work in the light assembly department due to his chronic dermatitis, id. at 1308, and that Midland Brake was unable to find an assignment within the light assembly department that Smith could perform given his physical limitations, see id. at 1307. Eventually, Midland Brake fired Smith because of its admitted inability to accommodate his chronic skin sensitivity in his previous department. See id.

Smith filed a complaint in the United States District Court for the District of Kansas seeking relief on the basis of Midland Brake's alleged violations of the ADA, ADEA, and Kansas state law. The district court entered summary judgment for Midland Brake on all of these claims. With regard to the ADA claim in particular, the district court held that Smith was not a "qualified individual with a disability" because, inter alia, Smith failed to provide Midland Brake with a medical release to return to work. On appeal, the panel affirmed the district court's judgment, but as to the ADA claim the panel affirmed on different reasoning. Although the panel agreed that Smith was not a "qualified individual with a disability," it predicated that conclusion upon the fact that no amount of accommodation could allow Smith to perform his existing job. Therefore, the panel concluded that Smith was not "qualified" under 42 U.S.C. § 12111(8). Judge Briscoe dissented on that particular holding. This court subsequently agreed to rehear only Smith's ADA claim "on the issue of interpretation of the requirements of the Americans with Disabilities Act."

Discussion

I. ADA Statutory Framework

A.

The general proscription of Title I of the American with Disabilities Act (ADA) is:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a) (emphasis added). The ADA defines the term "discriminate" to include

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 that the accommodation would impose an undue hardship on the operation of the business of such covered entity . . . .

42 U.S.C. § 12112(b)(5)(A) (emphasis added).

This language reveals that a person must meet the threshold test of being a "qualified individual with a disability" in order to invoke the ADA. The ADA defines a "qualified individual with a disability" as

an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

42 U.S.C. § 12111(8) (emphasis added). Midland Brake claims that Smith does not meet that definition of "qualified individual with a disability" because he could not perform the essential functions of his existing job in the light assembly department regardless of the level of accommodation offered. See Smith, 138 F.3d at 1307.

In this argument, Midland is in error, and the error is easy to identify. That reading ignores the last two words of the statutory definition of "qualified individual with a disability," the last two words being "or desires." 42 U.S.C. § 12111(8). Although a "qualified individual with a disability" has to be someone who can perform the essential functions of a job, that inquiry is not limited to the employee's existing job. Rather, the plain language of the statute includes an employee who has the ability to do other jobs within the company that such disabled employee "desires." 42 U.S.C. § 12111(8). To read the ADA otherwise, would render the word "desires" meaningless, and we must avoid such a construction. See Gustafson v. Alloyd Co., 513 U.S. 561, 574, 131 L. Ed. 2d 1, 115 S. Ct. 1061 (1995) (interpreting § 12(2) of the Securities Act of 1933, "the Court will avoid a reading which renders some words altogether redundant"); Fuller v. Norton, 86 F.3d 1016, 1024 (10th Cir. 1996) ("We avoid interpreting statutes in a manner that makes any part superfluous.").

Our conclusion that a "qualified individual with a disability" includes a disabled employee who desires and can perform with or without reasonable accommodation an available reassignment job within the company, though unable to perform his or her existing job, is reinforced by an examination of the ADA's definition of "reasonable accommodation." The ADA definition of "reasonable accommodation" lists the kinds of reasonable accommodations that may be required of an employer. Reasonable accommodations may include

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; 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, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. § 12111(9) (emphasis added). The...