United States District CourtFor the District of Connecticut____________________________________)VAN PERRINE, ))Plaintiff, ))v. ) Case No. 311-CV-120SSH)ROGER’S BUILDING SUPPLY, ))Defendant. )____________________________________ iMEMORANDUM IN SUPPORT OFDEFENDANTS MOTION FOR SUMMARY JUDGEMENTQUESTION PRESENTEDiiAs a matter of law can an employer be held liable for discrimination under the Americanswith Disabilities Act for allegedly refusing to provide reasonable accommodations based solelyon the choice not to reassign a disabled employee to a vacant position over a candidate ofsuperior education and qualifications; particularly after providing notice to the employee of thevacant position, giving their application great consideration, and upon hiring the more educatedand qualified candidate, offering them an alternative position within the company.PROCEDURAL HISTORYiiiOn March 14, 2011, plaintiff filed a Charge of Discrimination with the United StatesEqual Employment Opportunity Commission against Roger’s. On May 3, 2011, plaintiff
received a dismissal and notice of rights from the EEOC. Plaintiff filed his complaint pursuantto Title I of the Americans with Disabilities Act on May 9, 2011. Because plaintiff filed hiscomplaint within 90 days of receiving his dismissal and notice of rights, he has complied with allconditions precedent to filing the suit. The depositions of both parties have been taken, andRoger’s now files a Motion for Summary Judgment. In this motion Roger’s seeks summaryjudgment determining that as a matter of law an employer cannot be held liable fordiscrimination under the Americans with Disabilities Act based solely on failing to reassign adisabled employee to a vacant position over a candidate of superior education andqualifications.ivSTATEMENT OF FACTSvRoger’s is a chain of home improvement stores serving the northeast United States. Theplaintiff worked as a stocker for Roger’s from November 1996 until October 4, 2010. (Com.8).On October 4, 2010, while plaintiff was performing his typical task of unloading lumber, thetruck he was unloading from rolled forward, and the plaintiff fell approximately seven feet to theground, with the metal plank and lumber falling on top of him. As a result of his accident, theplaintiff is now handicapped and unable to fulfill the job requirements of the stocker position.(Com.9). Roger’s then provided plaintiff with nine weeks of medical leave.viThis allowed theplaintiff to maintain his employment status while he recovered in a hospital and rehabilitationcenter. (Com.10). By January 2011 the plaintiff was ready to return to work. On January 5, 2011,the plaintiff contacted Austin Brady, the district manager of Roger’s, for assistance concerningtransferring to a new position of employment suitable to his confinement to a wheelchair. (Ex.C). Brady offered the plaintiff advice on exploring the company’s online application resourcesand told him to apply for any position he was qualified for. (Ex. B). The plaintiff then appliedfor an inventory clerk position. (Ex. B). The 263 applications for the position were examinedthoroughly by Ross Clark, a regional manager at Roger’s. (Ex. A). Clark narrowed the applicantpool down to the 10 best candidates, one being the plaintiff. (Ex. A). Clark found the plaintiff tobe a top candidate for the job despite only having a GED and no secondary education. After
conducting interviews of the top 10 Clark made what he considered the proper business decision.Pursuant to Roger’s policy to hire the best qualified candidate for every job Clark awarded theposition to a Ms. Farnsworth due to her superior credentials including a college degree and 10years of experience as an inventory manager. (Ex. A). Mr. Brady offered the plaintiff, who hadbeen on medical leave, a position as a greeter, which he accepted. (Ex. A).ARGUMENT IviiSummary judgment should be granted in Roger’s favor because an objectiveinterpretation of the ADA’s plain language concerning reasonable accommodations’ leavesthe plaintiff without a legally valid complaint.The plaintiff’s discrimination claim is based entirely on the misguided conclusion that theADA’s provision concerning reasonable accommodations forces Roger’s to show himpreferential treatment and reassign him to a vacant position despite the existence of other morequalified applicants. To invalidate this claim we need look no further than the language of thestatute itself.A. The statutory language of the ADA upon which the plaintiff’s claim is based makesabsolutely no reference to a requirement that an employer reassign a disabledemployee to a vacant position over a better qualified applicant.viiiThe ADA states that “no covered entity shall discriminate against a qualified individual onthe basis of disability in regard to job application procedures, the hiring, advancement, ordischarge of employees, employee compensation, job training, and other terms, conditions, andprivileges of employment.” 42 U.S.C. § 12112(a). The ADA goes on to define discrimination asit applies to the case at hand as “not making reasonable accommodations to the known physicalor mental limitations of an otherwise qualified individual with a disability who is an applicant or
an employee, unless such covered entity can demonstrate that the accommodation would imposean undue hardship on the operation of the business of such covered entity.” 42 U.S.C. §12112(b)(5)(A). Finally, the ADA provides the following description defining an employer’sobligation concerning making a reasonable accommodation. “The term reasonableaccommodation may include: (A) making existing facilities used by employees readilyaccessible to and usable by individuals with disabilities; and (B) job restructuring, part-time ormodified work schedules, reassignment to a vacant position, acquisition or modification ofequipment or devices, appropriate adjustment or modifications of examinations, trainingmaterials or policies, the provision of qualified readers or interpreters, and other similaraccommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(A)(B).This statute contains absolutely no language plainly indicative of any obligation on the partof an employer to provide a disabled employee with preferential reassignment over otherqualified applicants to a vacant position. An objective interpretation of the statute entitles theplaintiff to a vacant position, not the vacant position of his choice, and not preferential treatmentover other qualified applicants.ixBased on this unbiased interpretation of the statute’s plainlanguage an employer’s obligation to make reasonable accommodations in respect to thereassignment of a disabled employee is satisfied simply by offering them a vacant positionwithin the company for which they are qualified.B. Federal Appellate Courts across the nation have adopted positions rejecting the notionthat the language of the ADA establishes a requirement that employers reassigndisabled employees to vacant positions ahead of more qualified candidates.In the interest of preventing injusticexnumerous Federal Appellate Courts spanning thecountry have rendered decisions adopting and mirroring this objective interpretation. In Huberv. Wal-mart the 8thCircuit U.S. Court of Appeals held that the ADA “is not a mandatory
preference act… and does not require an employer to reassign a qualified disabled employee to avacant position when such a reassignment would violate a legitimate nondiscriminatory policy ofthe employer to hire the most qualified candidate.” Huber v. Wal-mart Stores Inc. 486 F.3d 483(2007). In Daughtry v. City of El Paso the 5thCircuit U.S. Court of Appeals denounced the ideaof interpreting the ADA’s requirement of reasonable accommodation to include preferentialreassignment and portrayed the notion as an unfounded leap towards affirmative action. “We donot read the ADA as requiring affirmative action in favor of individuals with disabilities, in thesense of requiring that disabled persons be given priority in hiring or reassignment over thosewho are not disabled. It prohibits employment discrimination against qualified individuals withdisabilities, no more and no less.” Daughtry v. City of El Paso 56 F.3d 699 (1995). In E.E.O.C v.Humiston-Keeling, Inc. the U.S. Court of Appeals of the 7thcircuit followed suit when it rejectedthe Equal Employment Opportunity Commission’s contention that the statute called forpreferential reassignment, stating: “The fact that the disability isn’t what makes the disabledperson unable to perform the job as well as the person who got it is, in the Commission’s view,irrelevant. We do not agree with the Commission’s view on the statutory provision onreassignment.” E.E.O.C v. Humiston-Keeling, Inc. 227 F.3d 1027 (2000). This decisionrepresents not only another voucher for the fair and objective interpretation of the ADA’sprovision on reassignment; it serves to massively discredit a persuasive resource of the opposingviewpoint.xiIn fact, the 7thcircuit of the Federal Court System found the notion of preferentialreassignment so insufficiently persuasive that they rejected it even with the ADA’s regulatoryagency as its champion.C. Based on the statute’s plain meaning Roger’s has fulfilled its obligation to providereasonable accommodations to the plaintiff and should be exonerated of any charge ofdiscrimination.
After an examination of the ADA’s plain meaning and in compliance with the decisionsrendered in the cases above, it can be said that Roger’sxiinever had an obligation to reassign theplaintiff to a vacant position ahead of a more qualified applicant. In fact, the only obligationbestowed upon Roger’s by the reassignment provision of the ADA was to accommodate theplaintiff with a vacant position within the company that he could perform. Roger’s offered theplaintiff a vacant position within the company that he was capable of doing. A fact the plaintiffcannot deny.xiiiIn so doing Roger’s fulfilled its obligation to reasonably accommodate theplaintiff and satisfied with full compliance the requirements of the ADA including the onlyprovision at issue in this case. In turn, summary judgment should be entered in Roger’s favor.ARGUMENT IISummary Judgment should be granted in Roger’s favor because the legislative historyof the ADA clearly reflects that the legislature never intended the act to be interpreted todemand preferential treatment of the handicapped over other more qualified applicants.xivAt no point in the history of the ADA have the legislative bodies of this country intended theact to give rise to complaints such as the plaintiff’s. In fact, they’ve went to great lengths toprevent them. The legislature’s intent to exclude actions based on preferential hiring due todisabilities from validation under the act was made clear in a House Committee Report beforethe act was passed and emphasized in a later amendment.A. House Report No. 101-485(III) explicitly condones the idea that the act creates anobligation for employers to show preference to handicapped candidates in the hiringprocess.In 1990, while the ADA was a bill going through the final stages of legislation, TheCommittee on the Judiciary was charged with amending the bill to establish clear standards forthe prohibition of discrimination based on disability. Upon completion of this task they
compiled House Report No. 101-485xvwhich included a comprehensive report of their findingsand a section by section analysis of the bills purpose and legislative intent. The following is aquote from the section analyzing discrimination:“As with other civil rights laws prohibiting discrimination in employment, the Committee doesnot intend to limit the ability of covered entities to choose and maintain a qualified workforce.Covered entities continue to have the ability to hire and employ employees who can perform thejob. Employers can continue to use job-related criteria in choosing qualified employees. Forexample, in a job that requires lifting 50 pound boxes, an employer may test applicants andemployees to determine whether they can lift 50 pound boxes. Similarly, an employer cancontinue to give typists typing tests to determine their abilities. The Committee does not intendthat covered entities have an obligation to prefer applicants with disabilities over otherapplicants on the basis of disability.” H. Rep. No. 101–485(III) (May 15, 1990). xviThis statement clearly expresses the legislature’s desire to negate interpretations of the billthat impose mandates on employers like Roger’s that require they show favoritism tohandicapped individuals over other qualified applicants simply based on their handicap.B. In their 2008 amendment of the ADA the legislature narrowed key terms of the act inan attempt to better define the type of discriminatory action for which the statuteprovides an avenue of recovery.The 2008 amendment struck the term “discriminate” from §12112 of the act and replaced itwith the phrase “discriminate against a qualified individual on the basis of disability”. PL 110–325 (S 3406). This is indicative of the legislature’s continued desire to prevent meritless suitspursuant to the act. It more clearly indicates that plaintiff’s seeking recovery under the ADAmust show that they have been denied opportunities based on their handicap. In the case at hand,to allege discrimination in the hiring process, the plaintiff must show his handicap to be the “butfor” reason his job application was declined. Simply qualifying as handicapped and beingpassed on for an equally if not more desirable candidate is not sufficient to seek recovery fordiscrimination.
ARGUMENT IIISummary judgment should be granted in favor of Roger’s based on the principles ofpromoting good policy and fairness to the general public.xviiFor the benefit of the American workforce and as a matter of good public policy the actshould not be interpreted to require preferential reassignment to satisfy its demand for reasonableaccommodation. Such an interpretation would put in doubt the very parameters of the term“reasonable” and expose the American Court system and business structure to a plethora ofproblematic civil pursuits bolstered by statutory overreach, all culminating in a bottomless pit ofunnecessary adjudication.xviiiA plain reading of the statutes meaning and examination of thelegislature’s obvious intent, leaves no doubt, that as a matter of good policy and general fairnessto the American job applicant, this court can not adopt a standard that provides a class of peoplean unwarranted advantage in the hiring process. On principle, such interpretation wouldcontradict the very core values the ADA was intended to promote. The act fights to level theplaying field in the pursuit of happiness for all people, not skew it to the automatic advantage ofone class, regardless of what sets that class apart.CONCLUSIONxixRoger’s should be granted summary judgment determining that as a matter of law anemployer cannot be held liable for discrimination under the Americans with Disabilities Actbased solely on failing to reassign a disabled employee to a vacant position over a candidate ofsuperior education and qualifications. In striving to maintain continuity to the plain language ofthe statute, respect for Congress’ legislative intent, and general fairness amongst American jobapplicants, this court should grant Roger’s motion for summary judgment.
October 1, 2011 Respectfully Submitted,xxAdam AndersonAdam Anderson, Esq.State Bar No. 456711 Hamlet WayNormal, IL 60603(773) 553-1000
iHere I’ve attempted to reorganize the heading of my document that notes the plaintiff,defendant and case number. In my original work it was disorganized and poorly aligned.Cleaning it up and restructuring this section certainly provides a boost in my ethos with theCourt. My original attempt was poorly formatted and looked unprofessional. Submitting poorlyformatted work to the Court is a terrible mistake, especially when the problem exists in the veryfirst lines of the document.iiThe question presented serves two purposes. The heading itself provides structure to thememo making it easy to read, while the content within provides explicit direction for the Court,leaving no doubt from the very beginning as to what issues will be discussed. Ethos is boostedbecause proper structure connotes professionalism.iiiA procedural history section such as this one is also a great ethos booster. This sectionimmediately informs the Court of the actions taken in the case leading up to the current motion.It insures the Court that the correct steps have been taken leading up to the motion and indicatesthat filing it is an appropriate action. I feel including a detailed section such as this one makesthe filing attorney look professional, and indicates to anyone reading it that they were willing totake the time to provide a thorough explanation.ivThis section was originally the most mistake laden area of my paper. I had actually mixed thetwo parties up often referring to Perrine as the defendant and Roger’s as the plaintiff. I alsostated that it was the plaintiff’s motion for summary judgment which is clearly not the case.There were also gross amounts of unnecessary capitalizations throughout. I truly feel sorry foranyone who read this original document because I almost certainly confused them from the verybeginning. I’ve attempted to make sense of my errors and compared to the original, ethos issubstantially boosted.vThis section provides a structured and succinct description of the relevant facts. It provides theCourt with immediate context for the issues and my arguments. A professionally writtenstatement of the facts boosts ethos and the context it provides boosts the logos of my argumentslater in the document.viWhile a statement of the facts is a less argumentative section and must contain only truths, itcan still be written in a way that boosts pathos for a client. Throughout these first through linesI’ve employed several techniques in an attempt to do so. I referred to my client, “Roger’s,” firstand called them by name as opposed to using the term “defendant.” In turn I mentioned VanPerrine second referring to him only as “plaintiff.” This was an attempt to humanize my client inthe mind of the reader while dehumanizing the opposition. Then I immediately and succinctlygot the unfavorable facts concerning the injury suffered by Perrine while working for Roger’sout of the way. In turn, I immediately tried to further declaw them with a more humanizing andfavorable reference to the fact that Roger’s provided him with medical leave and allowed him tomaintain his employment status. Pathos boosts all around.viiI broke my argument sections into headings and subheadings. I felt this provided my papermore organization (boosting ethos) and made my individual arguments easier to understand(boosting logos).
viiiThe font of this subheading was inconsistent with the rest of the document. I’m not sure howor why this mistake was made. I changed it to the font I used throughout to provide uniformity.I feel this looked more professional, thus boosting ethos.ixThis is my plain language argument concerning the applicable statute in this case. I rewordedit slightly and tried to place precise emphasis on the word “a” in the statutes language. In thecontext of an objective reading of the statute I feel this argument boosted my logos substantially.xI decided to use the term “preventing injustice” here as opposed “fairness” because I feel like itprovided a boost of pathos. We’re not just trying to make a “fair” decision here, we’re trying to“prevent a terrible injustice” from being done to poor defendant Roger’s!xiReferences to direct quotes from other persuasively similar cases that support my interpretationof the statute’s language provide a strong foundation for my logic. Logos is boosted.xiiHere I misspelled “Roger’s” as “Rodger’s.” I managed to do this at random in several placesthroughout the document. My ethos was obviously taking a hit. It may have even weakenedmy pathos because it appeared I didn’t care enough to take the time to consistently spell myclients name correctly. Needless to say I’ve attempted to correct this error throughout.xiiiHere I’ve noted that the plaintiff “cannot deny” a fact that supports the logic of my conclusionin this argument. I think this not only boosts my logos, but in a roundabout way boosts mypathos by using the term “cannot deny” to imply that the plaintiff himself is guilty of something.I had used the phrase “does not deny” in the original document but chose to switch to “cannotdeny.” While both statements are true, the term “cannot” villainizes the plaintiff and gives thestatement more bite in the mind of the reader because it implies he sure would like to be able todeny it.xivIn my original document I had typed this heading all in capital letters making it inconsistentwith the other equivalent headings in the document. Again, I corrected this formatting mistaketo boost ethos.xvI remember going to great lengths to find this house report on the ADA when it was still a bill.This was an attempt to boost my logos substantially by demonstrating support for the logicbehind my interpretation of the act coming directly from the people who created it.xviThis was my attempt to reformat this rather lengthy quotation to the appropriate “block”format. I know the block format is appropriate here but I admittedly struggled to implement thechange very well. This was an attempt to boost ethos, and an improvement over the original, butit remains something I feel I need to work on.xviiThis was the public policy argument section of my paper. While briefer than my otherarguments I tried to use it as a chance to stand on my soapbox and boost some pathos. I’minterpreting the act this way for the good of the common man!
xviiiI think this sentence was me jumping up and down on that soapbox. This was an attempt tosupport the logic of my argument while simultaneously boosting pathos by referencing therampant waste and injustice that would the American people would be forced to suffer under thealternative interpretation.xixThis section provides a quick and succinct reference to the overarching conclusion drawn byall of my arguments. While the section isn’t overly descriptive the reader finishes with each ofmy arguments for a favorable judgment fresh in their mind.xxAn appropriately formatted and cordial signature/salutation block at the end is useful in twoways: 1. it demonstrates respect for the Court thus boosting pathos; 2. it lists my credentials,thus boosting ethos.