II..... District Court and Panel Decisions. 9

I. As This Court Has Already Recognized, A “Vacant” Position Within the Meaning of the ADA’s Reasonable Accommodation Provision Includes Both Those Positions Open Immediately and Those an Employer Can Anticipate Will Become Vacant Within a Short Period of Time. 11

II. Evidence that UPS Management Was Fully Aware of Faidley’s Medical Restrictions and Nonetheless Recommended Reassignment to the Feeder Driver Position as a Reasonable Accommodation Raised a Fact Issue as to Whether Faidley Was Qualified for the New Position. 19

CONCLUSION.. 31

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

Table of Authorities

CasesPage(s)

Alexander v. Northland Inn,
321 F.3d 723 (8th Cir. 2003)................................................................. 11, 25

Boykin v. ATC/VanCom of Colorado, L.P.,
247 F.3d 1061 (10th Cir. 2001)................................................................... 16

Cravens v. Blue Cross & Blue Shield of Kansas City,
214 F.3d 1011 (8th Cir. 2000)................................................ 2, 12, 14, 15, 18

Dalton v. Subaru-Isuzu Automotive, Inc.,
141 F.3d 667 (7th Cir. 1998)................................................................. 12, 17

Dark v. Curry Cty.,
451 F.3d 1078 (9th Cir. 2006)............................................................... 10, 15

EEOC v. Convergys Customer Mgmt. Grp.,
491 F.3d 790 (8th Cir. 2007)................................................................... 3, 24

Faidley v. UPS,
853 F.3d 447 (8th Cir. 2017)................................................................. 10, 11

Fjellestad v. Pizza Hut of Am., Inc.,
188 F.3d 944 (8th Cir. 1999)........................................................ 3, 21, 25, 28

Gile v. United Airlines, Inc.,
95 F.3d 492 (7th Cir. 1996)........................................................................ 16

Hoskins v. Oakland County Sherriff’s Dep’t,
227 F.3d 719 (6th Cir. 2000)....................................................................... 17

Hudson v. MCI Telecomms. Corp.,
87 F.3d 1167 (10th Cir. 1996)..................................................................... 17

Johnson v. Cleveland City Sch. Dist.,
443 F. App’x 974 (6th Cir. 2011)............................................................... 26

Jones v. Walgreen Co.,
679 F.3d 9 (1st Cir. 2012) .......................................................................... 26

Kalskett v. Larson Mfg. Co. of Iowa,
146 F. Supp. 2d 961 (N.D. Iowa 2001)...................................................... 15

Lewis v. Humboldt Acquisition Corp.,
681 F.3d 312 (6th Cir. 2012) (en banc)....................................................... 15

Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249 (11th Cir. 2001)................................................................... 29

Monette v. Elec. Data Sys. Corp.,
90 F.3d 1173 (6th Cir. 1996)............................................................. 2, 15, 17

Nagel v. Sykes Enterprises, Inc.,
383 F. Supp. 2d 1180 (D.N.D. 2005).......................................................... 15

Otto v. City of Victoria,
685 F.3d 755 (8th Cir. 2012)....................................................................... 25

Scruggs v. Pulaski Cty., Ark.,
817 F.3d 1087 (8th Cir. 2016)..................................................................... 25

Shannon v. N.Y. City Transit Auth.,
332 F.3d 95 (2d Cir. 2003)...................................................................... 2, 15

Sieberns v. Wal-Mart Stores, Inc.,
125 F.3d 1019 (7th Cir. 1997)..................................................................... 29

Smith v. Ameritech,
129 F.3d 857 (6th Cir. 1997)....................................................................... 29

Smith v. Midland Brake, Inc.,
180 F.3d 1154 (10th Cir. 1999) (en banc)............................................. 10, 15

U.S. Airways, Inc. v. Barnett,
535 U.S. 391 (2002)................................................................................. 3, 28

Windsor v. Parkway Sch. Dist.,
No. 4:06CV1310, 2008 WL 161849 (E.D. Mo. Jan. 15, 2008)..................... 29

Zambetti v. Cuyahoga Cmty. Coll.,
314 F.3d 249 (6th Cir. 2002)....................................................................... 21

Statutes

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq............................ 1

42 U.S.C. § 12111(8)................................................................................... 19

42 U.S.C. § 12111(9)........................................................................ 12-13, 18

42 U.S.C. § 12112(b)(5)(A).......................................................... 2, 11-12, 27

42 U.S.C. § 12112(b)(5)(B)...................................................................... 2, 27

Other Authorities

29 C.F.R. § 1630.2(o)(3)................................................................................. 12

29 C.F.R. Pt. 1630, App. § 1630.2(o)........................................ 10, 13, 14, 15, 16

29 C.F.R. Pt. 1630, App. § 1630.9................................................................... 24

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002), at https://www.eeoc.gov/policy/docs/accommodation.html..... 13, 16, 17, 18

Fed. R. App. P. 29............................................................................................ 1

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“Commission”) is the agency entrusted with the interpretation, administration and enforcement of Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”). This case encompasses important legal issues concerning the scope of an employer’s duty of reasonable accommodation under the ADA. First, it involves a question addressed in EEOC’s longstanding guidance: When is a position considered to be “vacant” and therefore reassignment-eligible for an employee who, due to a disability, becomes unable to perform the essential functions of his or her current position?

This case also involves the issue of whether an employer may rely on an ambiguous physician’s note for the first time in litigation, long after the interactive process of determining a reasonable accommodation has concluded, to avoid liability for any ultimate failure to accommodate an employee’s disability. To assist the en banc Court in resolving these issues, the Commission offers its views to the Court. See Fed. R. App. P. 29.

STATEMENT OF THE ISSUES [1]

1. As part of an employer’s obligation under the ADA to consider reassigning a disabled employee to a vacant position as a reasonable accommodation, does the term “vacant” include both those positions open immediately and those the employer can anticipate will become open within a reasonable period of time?

Key Cases: Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir. 1996); Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 104 (2d Cir. 2003).

Key Provisions: Americans with Disabilities Act, 42 U.S.C. §§ 12112(b)(5)(A)-(B).

2. Did the district court err in retroactively treating an ambiguous doctor’s note as conclusive evidence that the plaintiff was not qualified for a potential reassignment where the uncontroverted record evidence reflects that, at the time of the ADA’s interactive process to determine a reasonable accommodation, the employer considered the plaintiff qualified despite the medical restriction?

Key Cases: Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999); EEOC v. Convergys Customer Mgmt. Grp., 491 F.3d 790, 795 (8th Cir. 2007); U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002).

STATEMENT OF THE CASE

I. Statement of the Facts

This case is a private action brought by Jerry Lee Faidley against his former employer, United Parcel Service of America, Inc. (“UPS”). Faidley began working for UPS in 1977 and worked as a package delivery driver from 1987 onwards, for a total of twenty-five years. App. 244. In early 2010, Faidley experienced problems performing his job due to a series of on-the-job back injuries. App. 253-54. He had hip replacement surgery in October 2011, returning to work at the end of April 2012, but then experienced significant pain after working eleven- to twelve-hour days of repeated, heavy lifting. App. 430.

UPS placed Faidley on a limited work schedule until May 2012, when he met with his physician. App. 261. During that meeting, after Faidley explained that his pain resulted from working long hours of heavy lifting, Faidley’s doctor restricted him to eight-hour workdays. App. 262. Upon receipt of the written work restriction, Faidley’s manager directed him to go home, stating, “[c]ongratulations, your career at UPS is now over” because the package delivery position requires drivers to work nine-and-a-half-hour days and “UPS won’t allow anybody to work with permanent restrictions.” App. 263-64.

On July 24, 2012, Faidley had a UPS “ADA Checklist” meeting with UPS’s regional human resources manager, Vince Blood, its occupational health manager, Terra Vellema, and its occupational health supervisor, Jurgen Rosner. (Vellema and Rosner were trained as nurses.) A pp. 272, 298, 422. Rosner had instructed Blood to prepare for Faidley’s ADA Checklist meeting by carefully reviewing the doctor’s restrictions and then, during the meeting, told Blood to “elicit detailed information from” Faidley about positions he believed he could perform with or without accommodations and “[d]iscuss other potential accommodations the company has identified.” App. 403. Vellema testified that her role in ADA Checklist meetings was to examine the physician’s “diagnosis, . . . the medical condition, . . . [and] the limitations to make sure that we were . . . not putting someone at risk.” App. 333.

For his part, in preparation for the meeting, Faidley was asked to complete an accommodation checklist. On the form, he listed delivery driver as his current job, and stated “after 8 hours of repetitive lifting, walking, climbing, standing, I have pain in hips and lower back.” App. 422. He also stated that he “could do any job at UPS that I’m aware of such as car washer, porter jobs, air driver, air ramp or hub positions without an accommodation. I am not aware of any jobs.” Id.

During the meeting, the three UPS managers reviewed Faidley’s accommodation checklist with him and asked him questions about his medical condition, possible restrictions, and/or accommodations. App. 332-33; 343-45. UPS officials did not tell Faidley that his eight-hour-per-day accommodation request could not be granted, nor did they offer him any other possible accommodations. App. 271-73. Faidley was told only that UPS would review the matter and someone would get back to him. App. 273.

Immediately after the meeting, Blood completed the checklist accommodation form reserved for UPS management. App. 424. On that form, he stated Faidley could not perform his current delivery driver position because the eight-hour restriction conflicted with the collective bargaining agreement (“CBA”). Id. On the same page, Blood listed three “proposed accommodation[s].” Id. The first was reassignment to a “Feeder Driver” position, a full-time job that involves hauling trailers between UPS locations but does not require repetitive walking, lifting, or other physical exertion that would have exacerbated Faidley’s physical problems. Id.; App. 345.

Blood testified that he identified reassignment to the feeder driver position as a potential accommodation because, even though it was “outside of the eight-hour restriction,” he thought that Faidley could successfully perform the job because it “[was] much less strenuous physically than a package delivery driver.” App. 345-46. Blood wrote on the accommodation checklist form that the “[b]id [for the feeder driver position] will be posting soon,” that Faidley could perform the essential job functions, and that offering him the job presented “no” CBA conflict. App. 424. The two other proposed accommodations were reassignments to part-time positions. Id.

On August 9, 2012, Blood and Rosner participated in a UPS regional meeting at which Faidley’s request and Blood’s recommendations were reviewed. App. 302. At the meeting, Blood stated that the feeder job was “outside of the eight-hour restriction but [Faidley] still might be able to meet the physical limitations of it.” App. 345. Ultimately, the review committee rejected offering Faidley the job because Blood “was speculating that there may be some full-time feeder positions open or coming open.” Id. Blood “was asked ‘Are they currently available?’ And [he] said, ‘No.’ [He] was then instructed, ‘don’t list that because the job is not open.’” Id.

A few weeks later, in September 2012, UPS hired three persons as feeders, and then a fourth in January 2013, and a fifth in March 2013. App. 443. Michael Arndt, who worked with Blood in January 2013 until he ultimately took over the regional human resources manager position in March 2013, testified that, based on the timing of these hires, the feeder jobs were likely posted in August 2012, soon after the ADA meeting. App. 326. Arndt also testified that Faidley would have had hiring priority because he had seniority over all five individuals, who were all outside hires. Id.

Blood testified that he did not notify Faidley about the feeder driver position at any point during the accommodation process. App. 346. Likewise, Faidley testified that at no time during his employment, including the July 24 ADA Checklist meeting, did UPS ever inform him that reassignment to the feeder driver position existed as a potential accommodation. App. 470-71. Nor did Faidley list the feeder driver job among the many jobs he identified as possible accommodations on his accommodation checklist. App. 422. Instead, during the accommodation process that extended for more than a year, Faidley sought other full-time jobs, but either they were not open or they were not awarded to Faidley due to his lack of seniority compared to other applicants. Faidley was unable to successfully bid on a full-time position, and eventually retired in November 2013.[2] App. 135, 272.

II. District Court and Panel Decisions

Ruling on UPS’s motion for summary judgment, the district court held that Faidley was not qualified for the feeder job because the job required him to work longer than the eight-hour maximum specified in the doctor’s note. App. 196-97. The court acknowledged that “[t]here is evidence that UPS did not in fact rely on that restriction” because it considered the feeder job “physically easier” but because “the ADA did not require them to make that effort,” UPS’s “efforts to do more than the ADA requires do not open it up to liability, even if those efforts fail.” App. 197.

A divided panel reversed, holding that “the district court erred by determining as a matter of law that Faidley was unable to perform the essential functions of the feeder driver position.” Faidley v. UPS, 853 F.3d 447, 450 (8th Cir. 2017). The panel agreed with the Tenth and Ninth Circuits that “consistent with guidance from the [EEOC], 29 C.F.R. Pt. 1630 app. § 1630.2(o),” “‘positions that the employer reasonably anticipates will become vacant in the fairly immediate future’” are to be considered “available.” Id. at 451 (quoting Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999) (en banc), and citing Dark v. Curry Cty., 451 F.3d 1078, 1089-90 (9th Cir. 2006)). The panel ruled, “we also adopt the agency’s guidance to consider such positions.” 853 F.3d at 451. The panel then held that the evidence that UPS decided not to consider Faidley for the feeder driver position because the job was not vacant on July 24, 2012, the date on which the accommodation meeting took place, created a genuine issue of material fact as to whether Faidley was qualified for that position. Id.

UPS timely petitioned for rehearing en banc, arguing that the decision conflicts with Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir. 2003), wherein this Court held that “[t]he ADA does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden.” According to UPS, because an essential function of the feeder job was to work more than eight hours per day, UPS should be permitted to rely on those medical restrictions and not be “punished” for “consider[ing]” Faidley for a feeder driver job. On June 16, 2017, this Court vacated the panel decision and granted UPS’s petition for en banc review.

ARGUMENT

The ADA defines discrimination based on disability to include, in relevant part, “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 [its] business.” 42 U.S.C. § 12112(b)(5)(A). To determine the appropriate reasonable accommodation, ADA regulations state, the employer may need to engage in an “interactive process with the individual with a disability in need of the accommodation.” 29 C.F.R.

§ 1630.2(o)(3).

The ADA specifies that reassignment is one accommodation the employer should consider during the interactive process: “[t]he term ‘reasonable accommodation’ may include . . . reassignment to a vacant position.” 42 U.S.C. § 12111(9). Accordingly, this Court has explained, “the ADA places a duty on the employer to ascertain whether [the employer] has some job that the employee might be able to fill.” Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1022 (8th Cir. 2000) (quoting Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 677 (7th Cir. 1998)). While the statute itself does not define the term “vacant,” the purpose of 42 U.S.C. § 12111(9) and the nature of the interactive process are consistent with understanding the accommodation obligation to extend to those positions the employer knows will be vacant in a reasonable amount of time.

The EEOC has longstanding guidance materials on the subject: both an Interpretive Guidance, published at 29 C.F.R. Pt. 1630, App. § 1630.2(o) (and cited by the panel in this case) (hereinafter “Interpretive Guidance”), and a separate Enforcement Guidance. As the latter explains, a “vacant” position within the meaning of the ADA is one that is “available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time”—a determination to be made “on a case-by-case basis considering relevant facts.” Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002) (hereinafter “Enforcement Guidance”),^{^[3]} text accompanying nn.81, 89. “Relevant facts” may include “whether the employer, based on experience, can anticipate that an appropriate position will become vacant within a short period of time.” Id.; see also Interpretive Guidance (“Employers should reassign the individual to an equivalent position . . . if the position is vacant within a reasonable amount of time. A ‘reasonable amount of time’ should be determined in light of the totality of the circumstances.”).

Seventeen years ago, in Cravens, this Court expressed its agreement with the EEOC’s position on this issue. Id. at 1019 n.5 (“The term ‘vacant position’ not only includes positions that are presently vacant, but also those that the employer reasonably anticipates ‘will become vacant in a short period of time.’”) (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir. 1996)). This Court has never held otherwise or changed course since Cravens. Moreover, since Cravens was decided, district courts in this Circuit have embraced the principle, both with and without reference to the opinion. See, e.g., Nagel v. Sykes Enterprises, Inc., 383 F. Supp. 2d 1180, 1195 (D.N.D. 2005) (examining whether reassignment vacancies existed at the time “or . . . would become available in the near future,” without citing Cravens for authority); Kalskett v. Larson Mfg. Co. of Iowa, 146 F. Supp. 2d 961, 976 (N.D. Iowa 2001) (directly relying on both Cravens and EEOC’s Interpretive Guidance for authority).

Every other circuit to have addressed the issue has reached the same conclusion. See, e.g., Monette, 90 F.3d at 1187 (“If, perhaps, an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee.”), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc); Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 104 (2d Cir. 2003) (“[T]he position sought must be vacant within a reasonable amount of time.”); Dark, 451 F.3d at 1089-90; Smith, 180 F.3d at 1173; cf. Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996) (citing same passage in Interpretive Guidance with approval).

Although “vacant” is properly defined with some reasonable flexibility, the Commission recognizes that this flexibility is not unlimited. First, as both the EEOC and the courts have long recognized, what constitutes a “reasonable period of time” in any given case is fact-dependent. See Enforcement Guidance, text accompanying n.81; Interpretive Guidance; see also, e.g., Boykin v. ATC/VanCom of Colo., L.P., 247 F.3d 1061, 1064-65 (10th Cir. 2001) (“[E]xactly how long an employer should retain an employee on indefinite or medical leave pending the availability of a position that would accommodate the employee’s disability. . . must be made on a case-by-case basis.”). Thus, the Boykin Court contrasted examples of waiting periods until “next week” or thirty-seven days, as to which the opening would be considered “vacant within a reasonable amount of time,” with periods of six months or 1,300 days, as to which it would not. Id. at 1064-65 (citing Interpretive Guidance and Monette, 90 F.3d at 1176, 1187).

Moreover, employers are not obligated, for example, to place an employee on indefinite leave until a position opens up, see Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996), or wait “well over a year” for a position to open, Hoskins v. Oakland Cty. Sheriff’s Dep’t, 227 F.3d 719, 729 (6th Cir. 2000). Employers also are not required to create new jobs, displace existing employees from their positions, or violate other employees’ rights under a collective bargaining agreement. See generally Dalton, 141 F.3d at 678 (“Nothing in the ADA requires an employer to abandon its legitimate, nondiscriminatory company policies defining job qualifications, prerequisites, and entitlements to intra-company transfers.”); see also Enforcement Guidance (“The employer does not have to bump an employee from a job in order to create a vacancy; nor does it have to create a new position.”).

Accordingly, on this record, the panel properly held that the feeder driver position UPS identified as a possible accommodation for Faidley fit squarely within the definition of a “vacant” position. Indeed, UPS does not argue to the contrary. Blood, as UPS’s HR director who oversees vacancy announcements, listed the feeder driver job as a possible accommodation because it “will be posting soon.” And Blood’s prediction was accurate. According to UPS’s records, a few weeks after Blood’s representation to upper management that a feeder job would be posted soon, a position was posted and, soon thereafter, UPS hired several external candidates as feeder drivers. (Indeed, given the employer’s ongoing duty to provide reasonable accommodation, and given that Faidley continued to work for UPS until November 2013, the question of whether the feeder jobs were “vacant” was almost certainly mooted by the passage of time. See Enforcement Guidance, text accompanying n.98 (“The duty to provide reasonable accommodation is an ongoing one.”)).

The Commission respectfully urges this Court to reaffirm the position it took in Cravens and, in accordance with the statute, the EEOC’s guidance materials, and the law of every other circuit to have addressed the issue, hold that a “vacant” position within the meaning of 42 U.S.C.

§ 12111(9) includes positions that may become available within a reasonable period of time. This Court should further hold that the feeder driver position was vacant within the meaning of the ADA because a reasonable trier of fact could find that it would have been available to Faidley within a short period of time.

UPS argues that Faidley is not qualified to perform the feeder driver position because he cannot perform an essential job function: working more than eight hours per day. See UPS Appellee Brief (“UPS ae br.”) at 35-37; see generally 42 U.S.C. § 12111(8) (a qualified individual with a disability is one who “can perform the essential functions of the employment position that such individual holds or desires”). Faidley testified that he could successfully perform the duties of the feeder driver job, despite its requirement of approximately nine and a half hours’ work per day, because the job is less physically strenuous than the package delivery driver position. App. 470. And UPS’s HR manager, Blood, agreed at the time of the accommodation meeting and reiterated that view in his sworn testimony. App. 345, 424. According to UPS, even if Faidley’s and Blood’s assessment of Faidley’s abilities might be accurate, Faidley was nonetheless not qualified for the feeder driver job, more or less as a matter of law, because his doctor’s note stated that he could not work more than eight hours per day. UPS petition for rehearing (“PFR”) br. at 9-12; UPS ae br. at 35-37.

UPS further complains that if it had blindly relied on the doctor’s note and refused to speak with Faidley about possible accommodations, it could have escaped liability under the ADA entirely because it never would have learned that he could work longer than eight hours a day at less strenuous UPS jobs. UPS PFR br. at 9-12. Accordingly, as its argument goes, because Blood engaged in the interactive process with Faidley and deduced that the doctor’s note would not necessarily preclude him from all UPS full-time jobs, UPS is somehow being “penalized” for purportedly going above and beyond what the ADA requires by failing to accommodate Faidley. Id.

UPS’s arguments are flawed for several reasons. First, it is uncontested in the record that UPS’s decision not to offer Faidley a feeder driver job was based solely on the fact that no such positions were open on August 9, 2012, the date of the UPS regional meeting where Blood proposed the feeder position as an accommodation. Nowhere in the record does it suggest that Faidley’s work restrictions were a factor in the review committee’s decision not to offer him a feeder driver job, and UPS does not argue to the contrary.^{^[4]}

Second, the record evidence demonstrates that UPS did not consider Faidley’s eight-hour medical restriction to be an obstacle precluding him from the feeder driver job. App. 345. On UPS’s accommodation checklist form, which Blood completed immediately after the July 24 meeting, he wrote that Faidley could not perform the package driver job because of his eight-hour restriction. App. 424. Then, on the same page, Blood listed the feeder driver job as a proposed accommodation for which Faidley could perform the essential functions, even though Blood was well aware that the feeder job required more than eight hours’ work per day. Id. A trier of fact could therefore find that Blood did not find Faidley’s medical restrictions to be a concern when he identified the feeder job as a proposed accommodation.

Moreover, although the doctor’s note did not specify that Faidley’s eight-hour work restriction applied only to the package driver position, there is sufficient evidence to suggest that the restriction was in fact limited to that job. The note was written in May 2012, when Faidley worked, as he had done for the previous twenty-five years, as a package delivery driver. The event that triggered his injury, which required him to see his physician, was pain resulting from working long days, back-to-back, as a package delivery driver. The note itself consisted of placing an “X” and writing the number “8” on a pre-printed line next to “number of hours to work daily”; it did not say anything about the job or type of work subject to the eight-hour restriction. App. 418. Further, there is no evidence suggesting that the doctor was aware of other positions in which Faidley might have been interested. Indeed, it is undisputed that Faidley did not know of the feeder driver job at the time, so it would have been impossible for him to discuss the job with his doctor before obtaining the note.

UPS also had before it at the checklist meeting Faidley’s written statement he had completed soon after seeing the doctor. On that form, Faidley specifically outlined the parameters of his restrictions, stating that he had pain in his current job as a package delivery driver “after 8 hours of repetitive lifting, walking, climbing, standing.” App. 422. Taken together, this evidence, at a minimum, raises a fact issue as to whether the doctor’s note applied to all jobs or, as UPS management appeared to believe at the time, only to the package delivery job.

UPS, and the district court below, entirely mis-frame the issue of reasonable accommodation and the interactive process when they paint the company as being “penalize[d]” for Blood’s efforts to accommodate Faidley in the months after the doctor’s note. UPS PFR br. at 11; App. 197. Rather, at least until UPS concluded that it had no “vacant” position to offer, Blood did what the ADA asks of employers when he engaged in the interactive process with Faidley in July 2012 to determine a reasonable accommodation. See, e.g., EEOC v. Convergys Customer Mgmt. Grp., 491 F.3d 790, 795 (8th Cir. 2007) (“Once the employer is made aware of the legitimate need for an accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. This means that the employer should first analyze the relevant job and the specific limitations imposed by the disability and then, in consultation with the individual, identify potential effective accommodations.”) (internal citations and quotation marks omitted); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999) (“[W]e feel the [EEOC’s] interpretive guidelines [at 29 C.F.R. § 1630, App. § 1630.9] set forth when it is ‘necessary’ for an employer to initiate an informal interactive process with an employee in need of accommodation. The guidelines set forth the predicate requirement that when the disabled individual requests accommodation, it becomes necessary to initiate the interactive process.”).

In Faidley’s case, that process went on exactly as it should have until the UPS review committee derailed it by instructing Blood not to offer Faidley a feeder driver job because it was not “vacant” on August 9, 2012, the day of the regional review meeting. Now, long after the fact, UPS attempts to backtrack from Blood’s correct application of the interactive process by pointing to Faidley’s doctor’s note and arguing that once a doctor imposes a restriction appearing to forbid an employee from performing an essential job function, the employer need not inquire further. UPS PFR br. at 6-12. For support, UPS relies on caselaw that stands merely for the unremarkable proposition that an employer may rely on a doctor’s restrictions when determining whether an employee can be reasonably accommodated. See Alexander, 321 F.3d at 737 (“the ADA does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden”); Otto v. City of Victoria, 685 F.3d 755, 758-59 (8th Cir. 2012) (same); Scruggs v. Pulaski Cty., Ark., 817 F.3d 1087, 1094 (8th Cir. 2016) (same); Jones v. Walgreen Co., 679 F.3d 9, 18-19 (1st Cir. 2012) (same); Johnson v. Cleveland City Sch. Dist., 443 F. App’x 974, 986 (6th Cir. 2011) (same). This line of cases does not advance UPS’s argument because it begs the very question at issue here: whether Faidley’s doctor’s note actually did restrict him from working more than eight hours per day in positions less physically demanding than his original job as a package delivery driver.

Despite its argument in this litigation, at the time of Faidley’s accommodation request, UPS initially did fulfill most of its interactive process obligation under the ADA. See supra at 24-25 (detailing the employer’s interactive process duties); App. 272, 298, 333, 403, 422. UPS considered the doctor’s note Faidley presented, but then it went further. UPS had an accommodation meeting with Faidley, and arranged that two medically-trained occupational health specialists, in addition to a human resources representative, be in attendance. Although Blood failed to follow Rosner’s instructions to respond to Faidley’s accommodation suggestions and to propose other possible accommodations, Blood completed the rest of the process. Id. After the meeting and based on all the information he had before him, including the doctor’s note, Blood concluded that Faidley could perform the essential functions of the feeder driver job, regardless of what his limitations may have been in his original position.

As is entirely consistent with the cases UPS cites, a reasonable factfinder could conclude that Blood reviewed the doctor’s note but determined that it did not forbid Faidley from performing the essential functions of the feeder driver job, and, accordingly, that he was qualified for that position within the meaning of the ADA. Although UPS now may seek to characterize the doctor’s note as deeming Faidley categorically unqualified for any job requiring more than an eight-hour work day, UPS did not in fact construe the doctor’s note that way in July and August 2012, and so should not do so now, in retrospect, to gain summary judgment on the question.

Moreover, UPS’s argument that its vulnerability under the ADA is somehow heightened because Blood looked beyond Faidley’s doctor’s note is baseless and misunderstands the statute. An employer runs afoul of the ADA when it fails to reasonably accommodate an otherwise qualified person with a disability. 42 U.S.C. §§ 12112(b)(5)(A)-(B). Once that responsibility is triggered, the employer must engage in an interactive process to identify appropriate accommodations. See Fjellestad, 188 F.3d at 952 (employer has a “burden to engage in an interactive process to determine whether an appropriate reasonable accommodation existed”). If an employee shows that an accommodation seems reasonable on its face, the employer “then must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” U.S. Airways, Inc., v. Barnett, 535 U.S. 391, 401-02 (2002).

UPS does not argue—and has never argued—that providing Faidley with the feeder driver job would impose on it an undue hardship. Rather, according to UPS, although Blood knew of the doctor’s restrictions and nonetheless determined that Faidley was qualified for the feeder job, UPS is being “penalized” for not simply concluding, at the time, that Faidley was unqualified. UPS’s reasoning reflects a perverse view of “penalty” under which the doctor’s note would entitle the company to a free pass for any mishandling of Faidley’s accommodation request. If UPS’s actual treatment of Faidley indeed fell short of what the ADA required, then the company should be held liable for its failures, regardless of whether there might have existed an alternative course of action, equally infirm under the statute, that UPS did not take.

Nor is this a case where UPS exceeded or sought to exceed the requirements of the ADA with respect to Faidley or another employee, and was then exposed to liability for so doing. Cf. Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997) (“An employer who provides an accommodation that is not required by the ADA to one employee is not consequentially obligated to provide the same accommodation to other disabled employees.”); Windsor v. Parkway Sch. Dist., No. 4:06CV1310, 2008 WL 161849 at *9 (E.D. Mo. Jan. 15, 2008) (request for leave is not automatically a reasonable accommodation because it is authorized by an employer’s policies); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997) (employer not liable for trying but, due to technological complications, failing to create a new position for which the applicant could perform the essential functions); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1257 n.3 (11th Cir. 2001) (employer not liable for being unable to provide employee with a permanent position after exceeding the ADA’s requirements by providing him with a temporary position for a limited period of time).

Rather, this is simply a case where UPS complied with the ADA’s interactive process obligation up to a point, then ceased to do so, and is now looking for a retroactive excuse to enable it to do even less in the future. We urge this Court to deny UPS the end run it seeks around compliance with the ADA.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Acting Assistant General Counsel

s/Susan L. Starr

SUSAN L. STARR

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4727

susan.starr@eeoc.gov

[1] We take no position on any other issue presented in this appeal.

[2] In early 2013, Faidley was assigned to work as a loader/preloader, two part-time jobs melded together to form a single, full-time job. App. 270-1, 312. Due to the lifting required, he reinjured his back and was unable to work in that position more than four hours a day for the following five weeks. App. 270-1. UPS claimed it could not accommodate Faidley in this position. App. 435. Ultimately, Faidley refused the other positions offered because, as part-time positions, they would have a negative impact on his retirement and seniority. App. 217, 274, 419.

[4] If Faidley were indeed objectively unqualified for the feeder driver position, it would be immaterial whether or not the review committee raised that concern at the time. There is no liability under the ADA, including for an employer’s failure to engage in the ADA’s interactive process, where “no reasonable accommodation was possible.” E.g., Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999). However, the fact that Faidley’s qualifications went unmentioned is, at the very least, evidence suggesting that UPS considered him qualified for the job. Cf. Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 260-61 (6th Cir. 2002) (where employer chose one candidate over another for a promotion without mentioning the chosen candidate’s lacking a particular qualification, “a jury could reasonably conclude that Harris did know about the lack of qualification and decided to overlook it in favor of hiring an African-American candidate.”).