In a prior blog entry, I discussed how the issue of reassignment when an otherwise qualified person with a disability can no longer do the job would eventually be headed to the Supreme Court. However, that entry did not address the question as to how you go about proving up, i.e. making a prima facie case, for a reassignment claim as a reasonable accommodation. A case that answers this question is Bundy v. Chaves County Board of Commissioners, 2006 WL 6906700 (D. N.M. April 28, 2006). Keep in mind, that this case was likely unpublished, as only the Westlaw cite was available, and therefore, an attorney would need to check his or her local rule to see what kind of precedent this case may offer. Nevertheless, this case is useful for talking about how to make a reassignment claim and the defenses that an employer may have. In this case, the plaintiff wanted to be reassigned to a different position because they had a disability and could no longer do the job that they were in. Id. at**2-3. The problem that the plaintiff ran into was that he never furnished his medical records, and also that the entity he wanted to be transferred to, was actually a different entity than the one he was currently employed with. Id. at** 3-4, 10. Also, the court had a problem with the plaintiff looking toward the future with respect to jobs that may work for him even though he never submitted his medical records as the ADA works in the present. Id. at *9.
Nevertheless, the court did detail how do you go about proving a case involving reassignment and also when, in its opinion, a reassignment would be unreasonable. To make a prima facie case for reassignment, the court said that a plaintiff would have to show the following:
1) the plaintiff is a disabled person under the ADA and made any resulting limitation from his or her disability known to the employer; 2) the preferred option of accommodating the employee within his or her existing job could not be reasonably accomplished; 3) the employee requested the employer reasonably accommodate his or her disability with a reassignment to a vacant position, which the employee identified at the outset or which the employee requested the employer identify through the interactive process that was conducted by both parties in good faith; 4) the employee was qualified to perform one or more appropriate vacant jobs within the company with or without reasonable accommodations and that the employee specifically identified jobs that were available within the company at or about the time the request for reassignment was made; and 5) the employee suffered injury because the employer did not offer to reassign the employee to any appropriate vacant position. Id. at **6-7.
While these elements are instructive, make sure you check the law in your circuit. For example, as the aforementioned blog entry made clear, it may be debatable as to whether an otherwise qualified person with a disability is entitled to that vacant position as a matter of right or whether the employer has the ability to fill that position through competitive selection and just allow the person with a disability to apply for that position. Also, you want to check the case law in your jurisdiction to assess just how far the obligation of the employer goes with respect to helping the employee finding other suitable positions within the company. Finally, cases can vary widely in terms of when an employer will be deemed to know of an employee’s disability.
This case also went on to talk about how you can go about deciding whether a requested accommodation for reassignment is reasonable. First, the preferred option is always an accommodation that keeps the employee in his or her existing job that can be reasonably accomplished. Id. at *8. Second, reassignment must ordinarily result from the interactive process with both parties working together in good faith. Id. Third, the position does not require a promotion or redefinition of essential job requirements. Id. Fourth, the employer has the right to limit the option for reassignment in a way so that the reassignment does not violate other legitimate nondiscriminatory employment policies that are firmly established within the organization, such as seniority rights. Id. Finally, the employer has the right to figure out what position to reassign the employee to so long as the employer addresses the concerns noted in this paragraph.
Things to be thinking about in a reassignment case include: 1) Has the employee been evaluated to see whether with or without reasonable accommodations they can perform the essential functions of the job that they are currently in; 2) has the employer worked with the employee through the interactive process to evaluate what other positions are available; 3) what are the employer’s seniority policies, regardless of whether they are unionized or not?; 4) when does the employer consider a position vacant?; 5) where appropriate positions have been identified, has the employee been evaluated as to whether he or she can perform the essential functions of that job with or without reasonable accommodation in a manner in accordance with the provisions of the Americans with Disabilities Act? and 6) is the transfer policy a question of competitive bidding or does the person with a disability have the right to that position if they are otherwise qualified?. With respect to the competitive bidding versus automatic right, preventive law would suggests that despite the,prior blog entry, , and especially where the position is vacant, much litigation could be prevented if an otherwise qualified individual with a disability were able to transfer into a vacant position as a matter of right.