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OPINION BELOW
The United States District Court of the Southern District of New York granted the

motion for summary judgment filed by Appellees, Planet Earth News, Inc. The order is

included as Appendix A.

ISSUE PRESENTED

Under 42 U.S.C. 12112(b)(5)(A), is it the employers duty to reassign a

qualified individual with a disability to a vacant position when the plain language of the

statute mandates this reassignment, the legislative history confirms that reassignment is

an accommodation of last resort, and the EEOCs guidance clearly confirms an

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employers duty to reassign a qualified individual with a disability who can no longer

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perform the essential job functions of the current position?

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STATUTES INVOLVED

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The statutes involved are the findings and purposes section of the Americans with

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Disabilities Act (ADA), 42 U.S.C. 12101 (2009), the definitions section of the ADA id.

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at 12111, and the discrimination section of the ADA, id. at 12112. A copy of the

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finding and purposes section appears in Appendix B, a copy of the relevant portions of

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the definitions section appears in Appendix C, and a copy of the relevant portions of the

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discrimination section appears in Appendix D.

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JURISDICTION
Congress has granted that district courts shall have original jurisdiction of all

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civil actions arising under the Constitution, laws, or treaties of the Unites States. 28

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U.S.C. 1331 (1980). This case arises under the ADA, a federal statute, meaning that the

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district court had federal question jurisdiction.

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Under 28 U.S.C. 1291 (1982), courts of appeals have jurisdiction to hear

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appeals from final orders of the district courts. Because the district courts order granting

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summary judgment below was final, this court has jurisdiction to hear this appeal.

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STATEMENT OF THE CASE

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I. Procedural History

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After being passed over for the position of Director of Social Media at Planet

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Earth News, Inc. (PEN), Will Burgundy resigned from PEN (Pls Aff. 11). On January

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2, 2013, the EEOC issued Mr. Burgundy a right-to-sue letter (Compl. 5). Thereafter,

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Mr. Burgundy filed a complaint on March 13, 2013, requesting relief as a result of PENs

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discrimination in violation of 42 U.S.C. 12112(b)(5)(A), part of the Americans with

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Disabilities Act (Compl. 4). PEN answered the complaint on April 1, 2013. (Answer).

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On October 15, 2013, PEN moved for summary judgment (Defs Mot.), and Mr.

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Burgundy responded to this motion on October 31, 2013 (Pl.s Resp.). On December 20,

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2013, the district court granted the motion for summary judgment (Dist. Ct. Order), to

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which Mr. Burgundy filed a timely notice of appeal on January 6, 2014, seeking a

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reversal of the district courts order granting the motion for summary judgment (Not. of

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Appeal).

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II. Facts

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When PEN established its news network, Mr. Burgundy was hired as its very first

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Lead News Anchor (Compl. 8). Mr. Burgundy held this esteemed position for over a

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decade, until a catastrophic, ice skating accident (Pl. Aff. 5). As a result of this tragic

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accident, Mr. Burgundy suffered a severe tracheobronchial injury resulting in his

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aphonia, meaning that Mr. Burgundy will never speak again (id.). Mr. Burgundy is

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qualified individual with a disability as defined by 42 U.S.C. 12111(8) (2008) (Dist. Ct.

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Order, Dec. 20, 2013). Due to his aphonia, Mr. Burgundy took a leave of absence while

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he contemplated his future (Pl. Aff. 6). Mr. Burgundy then met with the station

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manager at PEN, Fred Harken (id. 7), who is responsible for accommodating employees

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with disabilities in accordance with the Americans with Disabilities Act (ADA) (Harken

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Dep. 1:7-9). Harken and Mr. Burgundy discussed reassignment to a position that would

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not require Mr. Burgundy having to talk (Pl. Aff. 7). The Director of Social Media

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position was vacant and would not require any speaking (id.). The requirements for the

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position were two years of news station experience and the ability to build a rapport with

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viewers (Pl. Aff. 7). Having over twenty years of news station experienceincluding

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more than ten years as the Lead News Anchor at PEN (id. 2) along with loyal

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followers all around the world and a social media presence (including a Twitter handle,

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Facebook profile, and blog) Mr. Burgundy was qualified for the position. (id. at 7).

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Harken interviewed Mr. Burgundy for the position of Director of Social Media

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(Harken Aff. 9). Despite Mr. Burgundys many years of anchor experience and loyal

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followers (Pl. Aff. 7), Harken hired Veronica Corningstone over Burgundy for the

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position of Director of Social Media (Harken Dep. 2:15-16). After being a valuable

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employee and the face of PEN for over a decade, Burgundy was forced to seek other

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employment options (Pl. Aff. 11.).

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SUMMARY OF THE ARGUMENT

The ADA imposes a duty on an employer to reassign a qualified individual with a

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disability to a vacant position when this is the only reasonable accommodation that will

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allow the employer to retain an employee. The text of the ADA defines not making

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reasonable accommodations to a disabled employee as discrimination and lists

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reassignment to a vacant position as a reasonable accommodation. Additionally,

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Congress purposefully included reassignment in the list of reasonable accommodations

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and placed many safeguards into the statute to prevent undue burdens on employers.

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Finally the agency that has been charged with administering the ADA, the EEOC, has

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interpreted the ADA as mandating an employer to reassign a qualified individual with a

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disability to a vacant position when reassignment is the only thing preventing the

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employer from losing his employee.

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STANDARD OF REVIEW

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This Court reviews the district courts grant of summary judgment de novo.

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Lynch v. City of N.Y.C., 737 F.3d 150, 156 (2d Cir. 2013).

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ARGUMENT

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THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT

BECAUSE 12112(b)(5)(A) OF THE ADA IMPOSES A DUTY ON AN
EMPLOYER TO REASSIGN A QUALIFIED INDIVIDUAL WITH A
DISABILITY TO A VACANT POSITION.

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The ADA prohibits an employers discrimination due to an employees disability.

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42 U.S.C. 12112(b)(5)(A). The ADA goes on to define discrimination as, among

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other things, not making reasonable accommodations to the known physical or mental

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limitations of an otherwise qualified individual with a disability who is an applicant or

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employee. U.S.C. 12112(5)(B). Furthermore, the ADA specifically mentions

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reassignment to a vacant position as a reasonable accommodation available for

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employers when an employee becomes a qualified individual with a disability. U.S.C.

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12111(9)(B).

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Several circuits have held that this provision imposes a duty on an employer to

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reassign a qualified individual with a disability to a vacant position. See e.g. Smith v.

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Midland Brake Inc., 180 F.3d 1154 (10th Cir. 1999); EEOC v. United Airlines, Inc., 693

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F.3d 760 (7th Cir. 2012); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998). Still,

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others have held the ADA does not impose a duty on an employer to fulfill a disabled

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employees reassignment request See e.g. Huber v. Wal-Mart Stores, Inc., 486 F.3d 480

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(8th Cir. 2007); Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995). The second

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circuit has not explicitly answered whether the ADA mandates reassignment to a vacant

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position for a qualified individual with a disability. (Dist. Ct. Order at 2). A plain

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language interpretation of the ADA, the legislative history of the ADA, and the United

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States Equal Employment Opportunity Commissions (EEOC) interpretation of the ADA

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will decisively show that the ADA requires mandatory reassignment of a qualified

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individual with a disability.

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A.

A Plain Reading of the Statutory Text of the ADA imposes a duty on an

Employer to Reassign a Qualified Individual with a Disability to a Vacant
Position.

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When the Court is interpreting the ADA, it should look, first, at the language of

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the ADA itself. Castellano v. City of N.Y., 142 F.3d 58, 66 (2d Cir. 1998) (citing

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Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). The core word in reassignment

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is assign. Aka, 156 F.3d at 1302 (citing 42 U.S.C. 12111(9)(B)). Assign is defined

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as to appoint (one) to a post or duty id. (citing Webster's Third New International

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Dictionary). An employee who is merely allowed to compete for a vacant position, on par

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with all others, has not been reassigned, by any meaningful sense of the word. id at

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1304. See also Smith, 180 F.3d at 1171 (finding that the ADA means more than mere

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consideration of reassignment to a vacant position).

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Furthermore, the ADA acknowledges that disabled employees are not always

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treated like all other employees. US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002).

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Specifically, preference will sometimes be essential to achieve the ADAs equal

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opportunity goal. id. And the fact that this preference violates a disability-neutral rule

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does not place reassignment outside of the scope of the ADA. id. To the contrary,

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reassignment to a vacant position is specifically listed in the statute as a reasonable

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accommodation. 42 U.S.C. 12111(9)(B).

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PEN will attempt to persuade the Court that reassignment is optional, and that

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Burgundy may be reassigned to a vacant position at the discretion of his employer.

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This position misinterprets the ADA. The act lists out a number of reasonable

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accommodations such as job restructuring, part-time or modified work schedules,

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modification of equipment and modifications of examinations. 42 U.S.C.

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12111(9)(B). There is nothing about a reassignment that transforms it into a lesser

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accommodation than the others listed, which an employer must not only consider but

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must also implement. Smith, 180 F.3d at 1167. Thus, the text of the ADA does not

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provide anything that suggests reassignment to a vacant position can be treated

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differently than the other reasonable accommodations. id.

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Additionally, the ADA already prohibits discrimination against disabled

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employees, no covered entity shall discriminate against a qualified individual on the

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basis of disability. U.S.C. 12112(a). If the Court adopts PENs reading of the statute

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and only requires that the disabled employee is considered for reassignment,

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12111(9)(B) and 12112(a) of the ADA would be redundant and add nothing to the

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general ban on discriminatory treatment. Aka, 156 F.3d at 1304. Therefore if an employer

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may only consider a disabled employees application for reassignment, the employer

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can simply go though the pointless process of considering the application, and reject it

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every time. Smith, 180 F.3d at 1167. The ADAs promise would be hallow and

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redundant. id. The Court should be skeptical in reading redundancy into a statute. Aka,

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156 F.3d at 1305 (citing Ratzlaf v. United States, 510 U.S. 135, 140 (1994)) (Judges

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should be hesitant to read statutory terms as non-essential elements). Therefore, the court

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should interpret the text of the ADA as imposing a statutory duty on an employer to

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reassign a qualified individual with a disability to a vacant position.

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B.

The Legislative History of the ADA Imposes a Duty on an Employer to

Reassign a Qualified Individual with a Disability to a Vacant Position.

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Courts have decided on differing textual readings of the ADA; specifically, if the

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ADA imposes a duty on an employer to reassign a qualified individual with a disability

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who is no longer able to perform the job task of her current position to a vacant position.

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See Aka, 156 F.3d at 1305 (finding that the forcing a disabled employee to compete with

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others for reassignment violates the ADA) But see Huber, 486 F.3d at 484 (finding that

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an employer can hire an outside applicant over a disabled employee). To resolve this

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discrepancy the Court may take counsel in legislative history and other similar tools of

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statutory interpretation (agency interpretation) to identify what was Congresss intention

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when enacting the ADA. Bragdon v. Abbott, 524 U.S. 624, 647 (1998)

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The legislative history of the ADA is in agreement with the 10th circuit, the D.C.

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circuit, and Mr. Burgundy that an employer has a duty to reassign a qualified individual

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with a disability to a vacant position. Congresss goal in enacting the ADA was to assure

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equality of opportunity, full participation, independent living, and economic self-

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sufficiency for individuals with a qualified disability. 42 U.S.C. 12101(7). In

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recognition of the unfair discrimination against individuals with disabilities, Congress

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purposefully wrote in reassignment to a vacant position as a reasonable

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accommodation into the ADA. 42 U.S.C. 12101(8)-12111(9)(B). If an employeedue

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to a disabilityis no longer able to perform the essential functions of the employees job,

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Congress understood that reassignment would prevent the employer from losing a

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valuable employee. H.R. Rep. No. 101-485 (II), at 63 (1990), reprinted in U.S.C.C.A.N.

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303, 345). This does not impose an undue burden on the employer, because the employer

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only needs to consider this accommodation after other accommodation efforts have

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failed. Aka, 156 F.3d at 1301.

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Congress further recognized that disabled employees are not always treated like

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all other employees. id. at 1304. To curtail the ADAs burden that this duty may impose

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on an employer, Congress included numerous safeguards in the statute. Smith, 180 F.3d.

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at 1170-1176 (citing, H.R. Rep. No. 101-485). First, the employer should consider

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reasonable accommodations within the employees existing job that will keep the

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employee at the existing job. Smith, 180 F.3d at 1174. It is when these efforts fail that the

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employer should reassign the employee to a new position. id. A new position that is

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vacant, preexisting, and does not require a promotion. id. at 1175-76. Furthermore, the

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employee must be qualified for the position, and the employer has no duty to reassign the

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employee if reassignment would impose an undue hardship on the employer. id. at 1178.

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Burgundys position is bolstered by the houses statement that the employer is not

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required to bump another employee out a position in order to create one for the

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disabled employee. H.R. REP. No. 101-485. If Congress thought that qualified

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individuals with a disability would be treated like all other employees, it would not have

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needed to include this bumping language in the house report. Smith, 180 F.3d at 1169.

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The numerous safeguards and the bumping language, arguably, makes it clear that

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congress did not intend that qualified individuals with a disability are to be treated

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exactly like all other employees. Congress intended to treat qualified individuals with a

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disability differently, i.e., preferentially. Barnett, 535 U.S. at 397.

The EEOCs Guidance Mandates that an Employer Reassign a Qualified
Individual with a Disability to a Vacant Position.

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C.

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The EEOC is the agency that has been charged with administering Title I of the

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ADA. 42. U.S.C. 12116. The EEOC has also issued regulations on the scope of

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reassignment as a reasonable accommodation. See 29 C.F.R. 1630.2(o) (2011). An

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employer has a duty to reassign a qualified individual with a disability to a vacant

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position. id. But, these regulations to not impose an undo burden on an employer. The

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employee should only be reassigned to a vacant position that she is qualified for, and

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only when the employee cannot be accommodated at the existing position. id. In addition

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to these regulations, the EEOC has issued interpretive guidance on the issue. See

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Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities

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Act, 4:11.EEOC enforcement guidance: Reasonable accommodation and undue

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hardship under the Americans with Disabilities Act, 7 Emp. Discrim. Coord. Forms,

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Pleadings and Practice Aids 4:11.The guidance provides this question and answer

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exchange to clarify the issue:

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Does reassignment mean that the employee is permitted to compete for a vacant
position?
No. Reassignment means that the employee gets the vacant position if s/he is
qualified for it. Otherwise, reassignment would be of little value and would not be
implemented as Congress intended. id.

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The EEOC is interpreting its own regulations, and it has been suggested that the

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EEOCs interpretations may receive controlling weight. Long Island Care at Home, Ltd.

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v. Coke, 551 U.S. 158, 171 (2007) (holding that an agencys interpretation of its own

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regulations are controlling unless clearly inconsistent with the actual regulations). Even if

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the court does not find this reasoning compelling, the EEOCs regulations do compose of

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a mass of experience and informed judgment that courts may properly resort to for

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guidance. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). The EEOC, as

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the agency directed by Congress to implement the ADA, is aligned with Burgundy and

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all of the other qualified individuals with a disability whoafter accommodationscan

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no longer perform the essential functions of their current job and are then denied

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reassignment by their employer, and the Court can properly refer to the EEOC for any

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guidance needed.

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CONCLUSION
Mr. Burgundy respectfully requests that this Court reverses the district courts
grant of summary judgment.

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