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Legal Eagle - CWS 30 August 2.16

CWS 30


In June, the U.S. Court of Appeals for the Tenth Circuit considered whether positions filled by temporary contract workers are "vacant" for purposes of reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA). In Duvall v. Georgia-Pacific Consumer Products, L.P., the court held that, because similarly situated nondisabled employees could not apply for or obtain positions filled by temporary workers, the employer was not obligated to reassign a disabled employee to such positions, as they were already filled.

The Facts
Plaintiff Travis Duvall, who suffered from cystic fibrosis, worked in the shipping department of a paper mill owned by Georgia-Pacific Consumer Products LP. In 2005, Georgia-Pacific decided to outsource its shipping operations to a company called Network Logistics Solutions (NLS). As Georgia-Pacific employees (Duvall included) transferred out of the shipping department, their former positions in that department were filled by temporary workers (who were provided by a third-party staffing company). The temporary workers remained in place until the NLS staff was ready to take over the shipping department.

As part of the transition, Duvall transferred to a machine operator position in the Georgia-Pacific converting department. By April 2006, Duvall was experiencing severe breathing difficulties due to the dusty environment in the converting department and requested a reasonable accommodation. Duvall asked that he either be put back in his previous position in the shipping department, which was then occupied by a temporary contract worker pending the permanent outsourcing of the department, or transferred to a position in the storeroom, which was also in a state of flux at the time, with a number of temporary workers filling some of the storeroom positions. Georgia-Pacific refused Duvall's requests, and he was placed on short-term disability leave for three months.

Subsequently, in July 2006, the company offered Duvall the choice between a temporary position in the shipping department, which would not offer regular shifts or predictable hours, or a full-time position as a storeroom clerk, which entailed a significant pay cut. Despite the reduction in pay, Duvall accepted the storeroom position.

In December 2006, Duvall filed suit against Georgia-Pacific in the U.S. District Court for the Eastern District of Oklahoma, alleging that the company failed to reasonably accommodate his disability in violation of the ADA when it did not reassign him to the shipping department or the storeroom upon his request. The district court granted summary judgment for Georgia-Pacific, holding that the shipping department and storeroom positions filled by temporary workers were not "vacant" within the meaning of the ADA.

The Tenth Circuit's Decision
On appeal, the Tenth Circuit considered the definition of "vacant" for purposes of reassignment under the ADA. The court held that "when a disabled employee seeks the reasonable accommodation of reassignment to a vacant position, positions with the company are 'vacant' for the purposes of the ADA when they would be available to similarly-situated not disabled employees to apply for and obtain." The court noted that, in framing this definition, it sought to avoid "transforming the ADA from an antidiscrimination statute into a mandatory preference statute."

Applying this new definition to Duvall's case, the Tenth Circuit affirmed the district court's decision to grant summary judgment to Georgia-Pacific. The appellate court held that, at the time Duvall sought reassignment to the shipping department and storeroom positions, those positions -- filled by temporary workers until NLS employees could fill them or until Georgia-Pacific determined to make the storeroom positions vacant again for its own employees -- were not "vacant" because they were not available for nondisabled Georgia-Pacific employees to apply for and obtain.

Recommendations
Employees seeking reassignment as an accommodation under the ADA may argue that any position filled by a temporary worker should be made available to him or her. It is important to consider in advance, and ideally document in policies or strategies, whether any of these positions are or will be available to regular full-time employees. A company's past practice in allowing or not allowing employees to "bump" such temporary workers will be considered as significant by the courts. Further, companies should consult outside counsel if it is unclear whether a position is "vacant" for purposes of reassigning a disabled employee.

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