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When a disabled worker asks for a transfer to a job that he can perform, the employer cannot require him to watch for job openings and file formal applications for the posts, a federal appeals court has ruled. In Shapiro v. Township of Lakewood, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals revived a lawsuit brought by a former emergency medical technician who said he was denied a transfer to a post as police dispatcher after he injured his back. In the suit, Howard Shapiro claimed that after he was injured and unable to continue working as an EMT, he asked for a transfer to police dispatcher — a post he had previously held — but was told that he would have to follow the standard procedure for interdepartmental transfers. To get a transfer, Shapiro said, he was told that he would have to go to Lakewood Township’s municipal building and watch for announcements to be posted on a bulletin board and then file a formal application. Shapiro’s lawyer, John P. Brennan Jr. of Spring Lake Heights, N.J., argued that by insisting on strict compliance with the unwritten rule governing transfers, Lakewood had violated Shapiro’s rights under the Americans with Disabilities Act. Brennan said that by requesting a reasonable accommodation, Shapiro had initiated an “interactive process” in which Lakewood was required to engage. But U.S. District Judge Mary Little Cooper of the District of New Jersey granted summary judgment for the township because Shapiro had not formally applied for the positions. Now the 3rd Circuit has ruled that Cooper erred in extending a previous 3rd Circuit decision and that her ruling contradicts a recent decision of the U.S. Supreme Court. “We hold that because Shapiro requested accommodation and because he identified positions into which he could have been transferred — namely, positions as a police dispatcher — summary judgment in favor of the township was not proper,” U.S. Circuit Judge Samuel A. Alito wrote. According to the suit, Shapiro was employed by Lakewood for 15 years, first as a police dispatcher and later as an EMT. On July 27, 1997, during the course of his employment as an EMT, Shapiro injured his back while lifting an elderly patient. His doctors later told him that he suffered a herniated disc. He continued to work on light duty in the Emergency Medical Services department until Oct. 9, 1997, when he was placed on out-of-work workers’ compensation temporary disability for one month. Eventually, Shapiro was released from out-of-work status to “restrictive duty” with the limitation that he could not crawl, crouch, squat or lift more than 25 pounds. He never resumed active duty as an EMT, however, and at the time of his lawsuit, he remained an unpaid employee of Lakewood on out-of-work status. After becoming disabled, Shapiro said, he made repeated requests for accommodations that would enable him to continue working for Lakewood either in a light duty capacity with EMS or in another position. In August 1997, he said, he informed his supervisor that he was disabled and sought “reasonable accommodation.” In January 1998, Shapiro’s lawyer sent a letter to Lakewood’s municipal manager, Frank Edwards, demanding “reasonable accommodation.” But the suit alleges that despite repeated requests, Lakewood either ignored Shapiro or told him that it could not give advice regarding what training he should pursue. On one occasion, the suit says, Shapiro was advised to “go to Town Hall and fill out a job application.” Shapiro claims that from the time he first requested accommodation to the initiation of legal action, Lakewood hired at least five dispatchers. Lakewood’s “policy” regarding such an interdepartmental transfer to a noncompetitive, vacant position is to post each opening on a bulletin board in the municipal building. Employees desiring a new position apply for a transfer by responding to the posting. Shapiro did not apply for a transfer to a vacant position. Lakewood claimed that because Shapiro failed to follow Lakewood’s procedure regarding interdepartmental transfers to vacant positions, it was not obligated to transfer him to the position of police dispatcher or any other position in another department of the township. Lakewood’s lawyers argued that accommodating Shapiro by means of a transfer would have required it to violate its “policy” of requiring interested employees specifically to request and interview for job transfers. Cooper agreed, citing the 3rd Circuit’s decision in Donahue v. Consolidated Rail Corp. On appeal, Shapiro argued that Cooper’s decision should be reversed because Lakewood failed to engage in good faith in an “interactive process” designed to find a job into which he could have been transferred. Alito found that the ADA itself does not refer to the “interactive process.” But the 3rd Circuit has endorsed the interactive process, Alito found, and has warned that “an employer that fails to engage in the interactive process runs a substantial risk” because “it may not discover a way in which the employee’s disability could have been reasonably accommodated.” Alito found that Cooper’s reliance on Donahue was misplaced. Donahue held that in a failure-to-transfer case, “the plaintiff bears the burden of demonstrating: (1) that there was a vacant, funded position; (2) that the position was at or below the level of the plaintiff’s former job; and (3) that the plaintiff was qualified to perform the essential duties of this job with reasonable accommodation.” The Donahue court also held that “in a failure-to-transfer case, if, after a full opportunity for discovery, the summary judgment record is insufficient to establish the existence of an appropriate position into which the plaintiff could have been transferred, summary judgment must be granted in favor of the defendant — even if it also appears that the defendant failed to engage in good faith in the interactive process.” Alito said Cooper extended Donahue when she held that in an ADA failure-to-transfer case, the employee with a disability must “identify a vacant, funded position for which he requested a transfer.” The extension was unwarranted, Alito said, because Donahue “did not hold or state that an employee in a failure-to-transfer case must always show that he or she formally applied for the position in question.” Cooper’s ruling, Alito said, also cannot be squared with the U.S. Supreme Court’s decision earlier this year in US Airways Inc. v. Barnett in which the justices considered the question of whether an employer may be required by the ADA’s reasonable accommodation requirement to deviate from a disability-neutral rule. Rejecting the argument that such a rule always takes precedence over a request for reasonable accommodation, the court expressed approval of lower court decisions holding that “a plaintiff/employee need only show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases,” and that “once the plaintiff has made this showing, the defendant/employer then must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” The justices held that when a disabled worker’s requested accommodation would violate a seniority system, an employer’s showing of violation of the rules of a seniority system “is by itself ordinarily sufficient” to show that the requested accommodation is unreasonable, but that the employee “remains free to show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested ‘accommodation’ is ‘reasonable’ on the particular facts.” Alito found that Barnett calls for a “two-step approach” for cases in which a requested accommodation in the form of a job reassignment is claimed to violate a disability-neutral rule of the employer. “The first step requires the employee to show that the accommodation is a type that is reasonable in the run of cases,” Alito wrote. “The second step varies depending on the outcome of the first step. If the accommodation is shown to be a type of accommodation that is reasonable in the run of cases, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the particular circumstances of the case,” Alito said. “On the other hand, if the accommodation is not shown to be a type of accommodation that is reasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that the accommodation is reasonable under the particular circumstances of the case.” As a result, Alito found that Cooper erred in entering summary judgment against Shapiro “simply because he did not comply with Lakewood’s policy regarding transfer applications.” Alito was joined by U.S. Circuit Judge Marjorie O. Rendell and visiting 9th Circuit Senior Judge Cynthia Holcomb Hall.

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