The full case caption appears at the
end of this opinion. McMILLIAN, Circuit Judge. Rebecca Cravens appeals from a final order entered in the United States DistrictCourt for the Western District of Missouri granting summary judgment in favor of BlueCross & Blue Shield of Kansas City (“BCBS”) on her claim pursuant to the Americanswith Disabilities Act (ADA), 42 U.S.C. � 12101 et seq., and the Missouri HumanRights Act (MHRA), R.S. Mo. � 213.055.1 (1994). See Cravens v. Blue Cross & BlueShield, No. 98-0410-CV-W-2 (W.D. Mo. Mar. 18, 1999) (summary judgment order)(hereinafter “slip op.”). For reversal, Cravens argues that summary judgment wasimproper because there was a genuine issue of material fact as to (1) whether Cravenswas a “qualified individual with a disability” within the meaning of the ADA; and (2)whether BCBS failed to comply adequately with its duty under the ADA to engage inan interactive process with Cravens with respect to reasonable accommodation. Forthe reasons discussed below, we reverse the district court’s order and remand forfurther proceedings consistent with this opinion. Jurisdiction Jurisdiction in the district court was proper based upon 28 U.S.C. �� 1331 and1367. Jurisdiction in the court of appeals is proper based upon 28 U.S.C. � 1291. Thenotice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).BackgroundRebecca Cravens was an eighteen-year employee of BCBS, working for thecompany in different capacities from 1977 until October 31, 1995. In late 1993 or early1994, she assumed the position of Senior Operations Specialist, a claims processingposition which required Cravens to spend a substantial part of her time “keying” ortyping claim information into BCBS’ computer system.
[FOOTNOTE 1] See slip op. at 2. In June 1995 Cravens sought medical treatment for pain in her wrists. Herdoctors placed her under a temporary restriction to avoid repetitive motion and,specifically, to refrain from “keying.” As a result of this restriction, Cravens wasunable to perform all of her duties as Senior Operations Specialist. Accordingly, during June and July 1995, BCBS gave Cravens a series of temporary, “no keying”assignments, including filing, photocopying, stuffing envelopes, answering patientreferral telephone calls, pulling microfilm, and helping other departments. See id.On July 28, 1995, Cravens was diagnosed with bilateral carpal tunnel syndromeand thus permanently restricted to no or minimal keyboard activity. On August 16,1995, Cravens met with Pam Weil, her supervisor, and Lola Griffey, a BCBS humanresources department representative. At this meeting, Cravens was told that she hadten to twelve weeks to find another BCBS position (with no keying requirement) viathe internal application process available to all employees. BCBS agreed to retainCravens in her limited duty position in the meantime, with the understanding that heremployment would be terminated if she were unable to secure another job within thecompany. See id. at 2-3. Later that same day, Cravens forwarded a memorandum toGriffey relating her understanding of the meeting and requesting “as much assistanceas possible” from Griffey and the human resources department in obtaining another jobwithin BCBS. Joint Appendix (hereinafter “App.”), vol. II, at 309 (memorandum fromCravens to Griffey). On September 25, 1995, Weil informed Cravens that, because she was unableto key, and because her department had no permanent non-keying positions available,Cravens would soon be replaced by a new employee who could “key in” claims. Seeslip op. at 3. Cravens was eventually terminated on October 31, 1995. See App., vol.II, at 310 (letter from Weil to Cravens). On January 2, 1998, Cravens filed this action in Missouri state court, allegingviolations of Title I of the ADA as well as the MHRA. Specifically, Cravens claimedthat she was discriminatorily discharged after BCBS failed to accommodate herdisability by reassigning her or helping her locate another position within the companyor both. BCBS removed the case to federal court and moved for summary judgment. The district court granted summary judgment in favor of BCBS, holding thatCravens had failed to establish a prima facie case of discrimination under the ADA.Specifically, the district court determined that Cravens had not generated a factualdispute as to whether she was a “qualified individual with a disability” within themeaning of the ADA. As the district court noted, Cravens could not perform theessential “keying” function of the Senior Operations Specialist position given hermedical restriction; moreover, she could not show that any reasonable accommodation(other than reassignment to another position) was available to remedy her situation. See slip op. at 6. As to the argument that reassignment constituted a mandatoryreasonable accommodation under the ADA and corresponding Equal EmploymentOpportunity Commission (EEOC) guidelines, the district court was persuaded that:
reassignment can be used as a means of accommodating a disabled employee when accommodating him [or her] in his [or her] current position is possible, but difficult for [the] employer. It follows that when it is not at all possible to accommodate an employee in his [or her] current position, there is no obligation to reassign.
Id. at 8-9 (emphasis included in original) (quoting Smith v. Midland Brake, Inc., 138F.3d 1304, 1308 (10th Cir. 1998), rev’d and remanded, 180 F.3d 1154 (1999) (enbanc)). According to the district court, because Cravens could not claim entitlementto such an accommodation, she therefore could not be a “qualified individual with adisability.” See id. at 9. Even assuming arguendo that such a reassignment duty existed under the ADA,the district court held that summary judgment was nonetheless warranted becauseCravens had not created a genuine issue of material fact about whether reassignmentwould have been a reasonable accommodation in the instant case. Specifically, thedistrict court determined that she had failed to identify any vacant positions whichexisted within BCBS at the time of her termination and for which she was qualified.See id. at 11. Finally, the district court held that it was beyond genuine dispute thatBCBS had adequately engaged in an interactive process with Cravens in an attempt toprovide her reasonable accommodation, see id. at 13, and that BCBS was not requiredunder the ADA to identify alternative positions for her, assess her qualifications, notifyher of available jobs, or “automatically plac[e] her in the position of her choice to theexclusion of other equally qualified persons.” Id. at 14. This appeal followed. Discussion We review decisions to grant summary judgment de novo, applying the samestandards as did the district court, see Wooten v. Farmland Foods, 58 F.3d 382, 385(8th Cir. 1995), and affirming only when no genuine issue of material fact remains andthe moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 249-50 (1986). We view all evidence in the light most favorableto the non-moving party and recall that, “[b]ecause discrimination cases often dependon inferences rather than on direct evidence, summary judgment should not be grantedunless the evidence could not support any reasonable inference for the nonmovant.”Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). However, summaryjudgment is proper if the plaintiff fails to establish any element of his or her prima faciecase. See Wilking v. County of Ramsey, 153 F.3d 869, 873 (8th Cir. 1998). Statutory Background: Title I of the ADA bars employers from discriminating against “a qualifiedindividual with a disability because of the disability of such individual in regard to jobapplication procedures, the hiring, advancement, or discharge of employees, employeecompensation, job training, and other terms, conditions, and privileges of employment.”42 U.S.C. � 12112(a). The ADA further defines discrimination to includenot making reasonable accommodations to the known physical or mentallimitations of an otherwise qualified individual with a disability who is anapplicant or employee, unless such covered entity can demonstrate thatthe accommodation would impose an undue hardship on the operation ofthe business of such covered entity . . . .Id. � 12112(b)(5)(A). As the statutory language indicates, ADA protection extendsonly to a “qualified individual with a disability,” namely, “an individual with a disabilitywho, with or without reasonable accommodation, can perform the essential functionsof the employment position that such individual holds or desires.” Id. � 12111(8). Thus, to establish a prima facie case of discrimination under the ADA, anaggrieved employee must show that he or she (1) is disabled within the meaning of theADA, (2) is qualified (with or without reasonable accommodation) to perform theessential functions of the job at issue, and (3) has suffered an adverse employmentdecision because of the disability. See Treanor v. MCI Telecommunications Corp.,200 F.3d 570, 574 (8th Cir. 2000). The determination of qualification involves a two-foldinquiry: (1) whether the individual meets the necessary prerequisites for the job,such as education, experience, training, and the like; and (2) whether the individual canperform the essential job functions, with or without reasonable accommodation. SeeBenson v. Northwest Airlines, Inc., 62 F.3d 1108, 1111-12 (8th Cir. 1995) (Benson). Although the employee at all times retains the burden of persuading the trier of fact thathe or she has been the victim of illegal disability discrimination, “once the plaintiffmakes ‘a facial showing that reasonable accommodation is possible,’ the burden ofproduction shifts to the employer to show that it is unable to accommodate theemployee.” Id. at 1112 (quoting Mason v. Frank, 32 F.3d 315, 318-19 (8th Cir. 1994)). Qualified Individual with a Disability / Reassignment as Reasonable Accommodation: We have carefully reviewed the record in the present case and the parties’arguments on appeal. It is undisputed that Cravens is disabled within the meaning ofthe ADA and that, absent reasonable accommodation, she was unable to perform theessential functions of her position as Senior Operations Specialist. It is also undisputedthat BCBS could not have reasonably accommodated her within that position so as toenable her to do her job despite her blanket “no keying” restriction. Instead, the onlyreasonable accommodation that would have allowed Cravens to continue working forBCBS was reassignment to another position within the company. As stated supra, 42 U.S.C. � 12111(8) defines a “qualified individual with adisability” as “an individual with a disability who, with or without reasonableaccommodation, can perform the essential functions of the employment position thatsuch individual holds or desires.” BCBS initially argues that Cravens does not fallwithin the scope of this statutory definition because she cannot perform, with or withoutreasonable accommodation, the essential functions of the job she “holds,” namely thatof Senior Operations Specialist. As to the phrase “or desires,” BCBS maintains thatthis language seeks to prevent discrimination in hiring and advancement and thusapplies only to job applicants, not to individuals seeking reassignment. We disagree.Although a “qualified individual with a disability” must be someone who canperform the essential functions of a job, the terms of � 12111(8) do not limit the”qualified individual” inquiry to the individual’s existing job. Instead, the scope of thestatute plainly includes a disabled individual who can perform a company job that saidindividual “desires.” Id. Thus, on its face, � 12111(8) appears to include currentemployees with a disability who seek or desire transfer to another position within thecompany. This understanding is reinforced when we consider � 12111(8) in the context of� 12111(9), which lists “reassignment to a vacant position” as a reasonableaccommodation. By its very construction, the term “reassignment” implies that thedisabled individual already holds an existing assignment and must therefore be a currentemployee, rather than a job applicant. The legislative history confirms such a reading: Reasonable accommodation may also include reassignment to a vacantposition. If an employee, because of disability, can no longer perform theessential functions of the job that she or he has held, a transfer to anothervacant job for which the person is qualified may prevent the employeefrom being out of work and [the] employer from losing a valuable worker.H.R. Rep. No. 101-485 (II), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345. We further note that, if BCBS’s restrictive reading were adopted instead, the onlyemployees eligible for reassignment would be those otherwise qualified for theirexisting positions and with no apparent need for reassignment. “With this backgroundin mind, it is the more natural reading of ‘of desires’ to apply the phrase more broadlythan just to job applicants.” Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10thCir. 1999) (en banc) (Smith); accord Aka v. Washington Hosp. Ctr., 156 F.3d 1284,1301 (D.C. Cir. 1998) (en banc) (Aka) (“An employee seeking reassignment to avacant position is thus within the definition [of 'qualified individual with a disability']if, with or without reasonable accommodation, she can perform the essential functionsof the employment position to which she seeks reassignment.”). BCBS next argues that reassignment is not a mandatory accommodation underthe ADA and, as such, Cravens cannot claim entitlement to reassignment when sheadmittedly cannot do her current job. BCBS stresses that the ADA, its implementingregulations, and its legislative history all use the term “may,” instead of “should” or”must,” when describing “reasonable accommodation.” See 42 U.S.C. � 12111(9)(providing that “reasonable accommodation” “may include . . . reassignment to a vacantposition.”); 29 C.F.R. � 1630.2(o)(2) (“Reasonable accommodation may include butis not limited to . . . reassignment to a vacant position . . . .”); H.R. Rep. No. 485 (II),at 63 (1990) (“Reasonable accommodation may also include reassignment to a vacantposition.”). BCBS contends that this “permissive” language indicates that employershave the option, not the obligation, to accommodate employees through reassignment.See Brief for Appellee at 26. Accordingly, BCBS argues, several circuits have rejectedsuch a mandate. See Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir.1997) (holding that judgment as a matter of law in favor of employer was properbecause the employer “would not be obligated to accommodate [the employee] byreassigning him [or her] to a new position.”); Myers v. Hose, 50 F.3d 278, 284 (4thCir. 1995) (Myers) (holding on summary judgment that “the duty of reasonableaccommodation does not encompass a responsibility to provide a disabled employeewith alternative employment when the employee is unable to meet the demands of his[or her] present position.”). Finally, BCBS claims that, at most, employers are obligated only to considerreassignment in a narrow band of cases, namely where “accommodation is possible butnot desirable to the employer.” Brief for Appellee at 23 (construing language in 29C.F.R. � 1630.2(o) that “reassignment should be considered only when accommodationwith the individual’s current position would pose an undue hardship”). [FOOTNOTE 2] BCBS admitssuch a duty to consider reassignment as a reasonable accommodation was implicitlyrecognized in Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 950-51 (8th Cir.1999) (Fjellestad), where we found that the plaintiff had created a genuine issue ofmaterial fact as to whether the employer could have reassigned her to a specific, vacantposition. We recognize that reassignment may not be required of employers in everyinstance. However, the language of the statute, the regulations, and the legislative history does clearly indicate that, in certain circumstances, reassignment may benecessary as a reasonable accommodation; consideration of reassignment is merely acomponent part of the overall reasonable accommodation duty. See Smith, 180 F.3dat 1166. Specifically, we conclude that the definition of “qualified individual with adisability” includes a disabled employee who cannot do his or her current job, but whodesires and can perform, with or without reasonable accommodation, the essentialfunctions of a vacant job within the company to which he or she could be reassigned. [FOOTNOTE 3]Such a view of the reassignment duty is well-supported among the circuits. SeeJackan v. New York State Dep’t of Labor, 205 F.3d 562, 565 (2d Cir. 2000) (“Both theplain language of the statute and a prior decision of this court foreclose [defendant's]argument” that “individuals who are unable to perform the duties of their currentpositions cannot require their employers to transfer them to other vacant positionswhich they are capable of performing.”); Bratten v. SSI Servs., Inc., 185 F.3d 625,634 (6th Cir. 1999) (“The ADA plainly states that re-assignment may be required toreasonably accommodate a worker with a disability.”); Smith, 180 F.3d at 1167(“[R]eassignment of an employee to a vacant position within a company is one of therange of reasonable accommodations which must be considered and, if appropriate,offered if the employee is unable to perform his or her existing job.”); Dalton v. Subaru-IsuzuAutomotive, Inc., 141 F.3d 667, 677 (7th Cir. 1998) (Dalton) (“It is wellestablished under the ADA, the employer’s duty reasonably to accommodate a disabledemployee includes reassignment of the employee to a vacant position for which she [orhe] is qualified.”); Willis v. Conopco, 108 F.3d 282, 284 (11th Cir. 1997)(“Reassignment to another position is a required accommodation only if there is a vacant position available for which the employee is otherwise qualified.”). But seeMyers, 50 F.3d at 284 (“[T]he duty of reasonable accommodation does not encompassa responsibility to provide a disabled employee with alternative employment when theemployee is unable to meet the demands of his [or her] present position.”). [FOOTNOTE 4] Notably, the scope of this reassignment duty is limited by a number ofconstraints. For one, the very prospect of reassignment does not even arise unless”accommodation within the individual’s current position would pose an unduehardship.” 29 C.F.R. 1630.2(o). In this sense, reassignment is an accommodation oflast resort. See Aka, 156 F.3d at 1301 (“Congress saw reassignment, as the EEOCdoes, as an option to be considered only after other efforts at accommodation havefailed.”). Moreover, the disabled employee must be seeking an existing position withinthe company; the employer is not required to create a new position as anaccommodation. See Benson, 62 F.3d at 1114. By the terms of the statute, the existingposition must be vacant. [FOOTNOTE 5] See id.; 42 U.S.C � 12111(9) (listing “reassignment to avacant position” as a “reasonable accommodation”). Thus, an employer is not requiredto “bump” another employee in order to reassign a disabled employee to that position.See White v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995); H.R. Rep. No. 101-485(II), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345 (“The Committee alsowishes to make clear [that] reassignment need only be to a vacant position – ‘bumping’another employee out of a position to create a vacancy is not required.”). Notably,promotion is not required; “[a]n employer may reassign an employee to a lower gradeand paid position if the employee cannot be accommodated in the current position anda comparable position is not available.” Cassidy v. Detroit Edison Co., 138 F.3d 629,634 (6th Cir. 1998); 29 C.F.R. 1630, app. � 1630.2(o). Further, the employer is notobligated to provide the accommodation requested or preferred by the employee; thereassignment need only be a “reasonable” accommodation. See 42 U.S.C. ��12111(9), 12112(b)(5)(A); Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir.1996). Importantly, the employee must be otherwise “qualified” for the reassignmentposition. See Benson, 62 F.3d at 1114; 42 U.S.C. � 12111(9)(B). To be considered”qualified” for this job, the individual must “satisfy the legitimate prerequisites for thatalternative position, and . . . be able to perform the essential functions of that positionwith or without reasonable accommodations . . . [though] in this context the term[reasonable accommodation] logically cannot include transfer to yet a third job.”Dalton, 141 F.3d at 678. With respect to these qualifications, the employer is generallynot required to transfer a disabled employee if such a reassignment would violate either”a legitimate, nondiscriminatory policy of the employer,” id. at 679, or “the contractualrights of other workers under a collective bargaining agreement.” Benson, 62 F.3d at1114. Finally, reassignment must not create an “undue hardship” on the employer. 42U.S.C. �� 12111(10), 12112(5)(A). In the instant case, Cravens initially identified three positions to which shecontends she could have been reassigned, including that of telecommunicationsspecialist. The district court found that Cravens had not facially demonstrated thatreassignment to any of these three positions would have been a reasonableaccommodation, namely because she had not proffered evidence that any of the threepositions were permanent or that she was qualified for any of them. See slip op. at 11. However, in her suggestions in opposition to BCBS’s motion for summaryjudgment, Cravens clearly stated that she met the prerequisites and could perform theessential job functions of the telecommunications position. See App., vol. II, at 349-50(Cravens affidavit); id., vol. II, at 354 (job posting for “telecommunicationscoordinator”). Moreover, she identified nine other positions within the company thatwere apparently vacant at the time of her termination. [FOOTNOTE 6] See id., vol. II, at 350, 352(Cravens affidavit); id., vol. II, at 355-63 (job postings for nine different companypositions). Although Cravens was unaware of these job openings at the time of hertermination, [FOOTNOTE 7] she stated that she could have performed the essential functions of eachof these positions despite her “no keying” restriction. See id., vol. II, at 350. Inaddition to ignoring Cravens’s assessment of her qualifications for thetelecommunications position, the district court failed to discuss any of these other nineidentified job openings. Cravens has generated a genuine issue of material fact as to whether BCBScould have reassigned her to either the telecommunications position or one of the othernine identified jobs. Her sworn statements that she met position requirements, hersubmission of relevant job postings, as well as her apparently competent performanceof BCBS job duties for close to twenty years create a fact question as to whether shewas qualified for any of the identified positions (including that of telecommunicationsspecialist) and whether reassigning her to one of these positions would be a reasonableaccommodation. See Fjellestad, 188 F.3d at 950-51; Benson, 62 F.3d at 1115. Thus,summary judgment is inappropriate at this time. Notably, our decision on this issuedoes not improperly relieve Cravens of her burden to prove that reasonableaccommodation was possible. See Fjellestad, 188 F.3d at 956. Interactive Process with Respect to Reassignment: BCBS claims that it “adequately engaged in an interactive process with Cravensattempting to provide her reasonable accommodation.” Slip op. at 13. BCBS notesthat vacant job postings were generally available to Cravens and that she had theopportunity to apply for specific positions through BCBS’s internal applicationprocedure, which Cravens admittedly did not use. Further, BCBS found a series oftemporary tasks for Cravens to perform while the extent of her disability was assessedand while she looked for alternative positions she could perform. Accordingly, BCBSargues that it is beyond genuine dispute that BCBS was not acting in bad faith and thatits interactive process duties were completely fulfilled. We disagree.Although there is no per se liability under the ADA if an employer fails to engagein an interactive process, we have previously noted that, for the purposes of summaryjudgment,the failure of an employer to engage in an interactive process to determinewhether reasonable accommodations are possible is prima facie evidencethat the employer may be acting in bad faith. Under these circumstances,we feel a factual question exists as to whether the employer has attemptedto provide reasonable accommodation as required by the ADA.Fjellestad, 188 F.3d at 952. To establish that an employer failed to participate in aninteractive process, a disabled employee must show: (1) the employer knew about theemployee’s disability; (2) the employee requested accommodation or assistance for hisor her disability; (3) the employer did not make a good faith effort to assist theemployee in seeking accommodation; and (4) the employee could have been reasonablyaccommodated but for the employer’s lack of good faith. See id. Applying this analysis to the instant case, we hold that Cravens has created agenuine issue of fact about whether BCBS failed to participate in the interactiveprocess. For one, BCBS was fully apprised of Cravens’s disability and had receivedseveral notes from her physicians indicating the extent of her impairment and containingvarious work restrictions, including the eventual “no keying” limitation. See App., vol.II, at 301-03, 305-07. BCBS was also aware that she was not performing her job toexpectations in light of her recent impairment. See id., vol. II, at 304 (memorandumfrom Weil to Cravens). Second, Cravens specifically requested assistance in locating an availableposition within the company. See id., vol. II, at 309 (memorandum from Cravens toGriffey) (“I feel it necessary to ask you and the Human Resources Department in wholefor as much assistance as possible in acquiring a new position that allows me to remainan employee of this company . . . . I feel that the knowledge and skills attained over thepast 18 years are an asset and can be valuable resources to the company. I sincerelyrequest your assistance in locating any position that could utilize any or all of theseresources. . . . Any and all assistance toward the retention of my employment with thiscompany is greatly appreciated.”). Once Cravens made this request, BCBS wasrequired to initiate an interactive process with her to determine the appropriatereasonable accommodation. See Fjellestad, 188 F.3d at 952. Third, viewing the evidence in the light most favorable to Cravens, we believethat a genuine dispute exists as to whether BCBS “made a good faith effort to engagein the interactive process, and that a reasonable jury could conclude that [the employer]has not met its burden to engage in an interactive process to determine whether anappropriate reasonable accommodation existed.” Id. Granted, BCBS did give Cravensinterim work tasks when she could not perform the functions of her position as SeniorOperations Specialist; BCBS also gave general notice as to the availability of vacantjobs and the internal application procedure. However, Cravens presented evidencethat, when she requested assistance in locating a job within the company, she was toldby Griffey, the human resources representative, that “they no longer had to help me sothey wouldn’t.” App., vol. II, at 272. After Cravens identified the telecommunicationsposition as a possibility for transfer and informed Griffey of her interest in the job,Griffey allegedly said that she would take care of it. See id., vol. II, at 352. Cravensfurther asserts that, when she tried to continue the process, Griffey failed to respondto Cravens’s repeated phone messages and attempted visits. See id., vol. II, at 277.Cravens additionally claims that she asked for assistance in identifying alternativepositions from other members of the human resources department and received minimalhelp in that regard. See id., vol. II, at 285. In short, there is at least an issue of fact asto whether BCBS failed to satisfy its obligation to interact actively with Cravens in thesearch for an appropriate accommodation. See Taylor v. Phoenixville Sch. Dist., 184F.3d 296, 316 (3d Cir. 1999) (“[W]hile an employee who wants a transfer to anotherposition ultimately has the burden of showing that he or she can perform the essentialfunctions of an open position, the employee does not have the burden of identifyingopen positions without the employer’s assistance. ‘In many cases, an employee will nothave the ability or resources to identify a vacant position absent participation by theemployer.’”) (quoting Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997)(Mengine)); Aka, 156 F.3d at 1304 n.27 (noting that an employer has a “correspondingobligation to help [an employee] identify appropriate job vacancies (since [employees]can hardly be expected to hire detectives to look for vacancies)”); Dalton, 141 F.3d at677 (“[T]he ADA places a duty on the employer to ascertain whether [the employer]has some job that the employee might be able to fill.”) (internal quotation marksomitted). The breakdown in communications that apparently occurred in the presentcase is especially troubling in a large company like BCBS, where workers “may not beaware of the range of available employment opportunities.” Mengine, 114 F.3d at 420. Finally, assuming BCBS acted in bad faith by failing to engage in such aninteractive process, BCBS has produced no evidence that reassigning Cravens to eitherthe telecommunications position or one of the other nine identified positions wouldhave created an undue hardship. Thus, we hold that the district court erred in granting summary judgment forBCBS, because “there is a genuine dispute as to whether the employer acted in goodfaith and engaged in the interactive process of seeking reasonable accommodations.”Fjellestad, 188 F.3d at 953.Conclusion We therefore reverse the district court’s order and remand the case to the districtcourt for further proceedings consistent with this opinion. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. :::FOOTNOTES::: FN1 Cravens estimates that keying comprises at least 50% of her job duties, seeJoint Appendix (hereinafter “App.”), vol. II, at 256 (Cravens deposition), whereas BCBS contends that 90-95% of the job is keying. See id., vol. I, at 137 (Pam Weil affidavit). FN2 BCBS also asserts that requiring employers to reassign employees who cannotperform the essential functions of their current jobs would “necessarily transform theADA from an anti-discrimination statute into an affirmative action law requiring thata preference be given to disabled employees over other applicants for the sameposition,” contrary to the purposes of the ADA. Brief for Appellee at 28. In the instantcase, we need not decide this very different question of whether an otherwise qualifieddisabled employee should be automatically awarded a position over other qualifiedapplicants. See, e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1167-70 (10th Cir.1999) (en banc). FN3 We implicitly adopted such a position in Benson v. Northwest Airlines, Inc.,62 F.3d 1108 (8th Cir. 1995), where we rejected the district court’s conclusion that theplaintiff-employee was not a “qualified individual with a disability.” Specifically, wenoted that, although the employee could not perform his current job as a mechanic, “if[the employer] had a vacant, existing position for which [the employee] qualified, [theemployee's] assignment to the position might have been a reasonable accommodation.”See id. at 1114. FN4 Myers has been sharply criticized for basing its proposition on case law nowapparently superseded by statute. See Bratten v. SSI Servs., Inc., 185 F.3d 625, 633(6th Cir. 1999) (noting the Myers Court’s reliance on Rehabilitation Act cases whichpreceded the statute’s 1992 amendment to include “reassignment to a vacant position”as a reasonable accommodation); Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7thCir. 1996) (similarly criticizing Myers). FN5 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 shortperiod of time.” Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir.1996). FN6 It is not entirely clear from the record whether the telecommunications positionwas permanent or not; however, the job posting does list “publish[ing] a quarterly inter-officephone directory” among the position responsibilities, which implies some kindof permanency. See App., vol. II, at 354 (emphasis added). The other nine positionslist annual salary scales and appear permanent in nature. See id. at 355-63. FN7 Cravens asserts that these job openings may not have been posted on the jobboard in her building and thus she “would have no opportunity to see them.” App., vol.II, at 350-51.
Cravens v. Blue Cross and Blue Shield United States Court of Appeals for the Eighth Circuit Rebecca Cravens, Appellant, v. Blue Cross and Blue Shield of Kansas City, Appellee. No. 99-1924 Appeal from the United States District Court for the Western District of Missouri Submitted: November 17, 1999 Filed: June 7, 2000 Before: McMILLIAN, FAGG and MORRIS SHEPARD ARNOLD, Circuit Judges.
