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By Patrick Dorrian
Dec. 3 — A former United Airlines ramp serviceman who lost his disability-related job reassignment when the airline changed its job-bidding rules for the position to make seniority a factor has no discrimination claim under federal disabilities law, a divided U.S. Court of Appeals for the Seventh Circuit ruled Dec. 3.
Under the Americans with Disabilities Act, a reasonable accommodation for a qualified individual with a disability can include a job transfer, but the federal appeals courts are split as to whether the law requires preferential job transfers for disabled workers into vacant positions. The Seventh Circuit has found that it does.
In the instant case, however, it noted that unless “special circumstances” are shown, U.S. Supreme Court precedent provides that an employer typically isn't required to reassign a disabled worker if doing so would violate a job-bidding process that includes a bona fide seniority system, such as the one in United's collective bargaining agreement with the International Association of Machinists and Aerospace Workers.
Michael Dunderdale argued that such special circumstances were clear from the fact that United had accommodated him for five years by allowing him to work in a sedentary position after back problems rendered him unable to perform the essential duties of a ramp serviceman, or in the airline's decision to change the bidding rules without someone first filing a grievance over them. By a 2-1 margin, the court found that neither situation amounted to special circumstances and affirmed a lower court's grant of summary judgment to United.
Judge William J. Bauer wrote the majority opinion, in which Judge Ilana Diamond Rovner joined.
Judge Kenneth F. Ripple dissented. He said special circumstances existed in the “expectation of ramp service employees” prior to the rule change that Matrix positions like the one Dunderdale had been transferred into “was one area that was not subject to the general seniority bid process.” He also faulted United for the breakdown in efforts to find Dunderdale a new accommodation after the bidding rules were changed.
In rejecting Dunderdale's failure-to-accommodate claim under the ADA, the appeals court majority cited US Airways, Inc. v. Barnett, 535 U.S. 391, 12 AD Cases 1729 (2002), where the Supreme Court held that employers are entitled to a rebuttable presumption that a requested accommodation is unreasonable if it conflicts with the employer's seniority rules for job assignments (83 DLR AA-1, 4/30/02).
“The Court noted, however, that an employee may demonstrate that ‘special circumstances' exist that justify assigning an individual to a position even if it violates the employer's seniority system,” Bauer wrote.
According to the Seventh Circuit opinion, prior to 2010, Matrix positions were only available to ramp servicemen—like Dunderdale—who had permanent work restrictions. However, beginning in May 2010, all ramp servicemen could bid on Matrix positions, a rule change United claims it made after ramp servicemen without permanent work restrictions “questioned their inability to bid for the Matrix position.”
As a result of the rule change, Dunderdale was placed on extended illness status (EIS) beginning in May 2011, although he ultimately was returned to the Matrix position in October 2013 after gaining sufficient seniority. In the interim, he declined United's offers to participate in reasonable accommodation sessions, twice requested appointment to a no-bid position, and complained of discrimination.
“Apart from these two requests, Dunderdale did not seek any other accommodation from United while he was on EIS,” Bauer said, and the airline denied his requests for appointment to a no-bid position on the grounds that there were no vacancies.
Dunderdale failed to show the special circumstances required by Barnett for deviation from its rebuttable presumption for seniority systems, the majority ruled.
It said that “the fact that United previously accommodated Dunderdale before May 2011 by restricting the Matrix position for ramp servicemen with permanent work restrictions does not affect the other ramp servicemen's reliance on the bidding system.”
All ramp servicemen had an expectation of consistent treatment regarding bidding for the Matrix position once the rule was changed, and “Dunderdale himself” later benefited from the rule change when he bid back into the position after he regained seniority, the majority said.
United's decision to change the bidding rules for the Matrix position, despite the absence of a formal grievance, likewise didn't amount to special circumstances, Bauer added. He said companies don't have to maintain jobs or job structures that provide reasonable accommodations when legitimate business reasons signal that a job or job structure should be eliminated.
“Here, United decided to change the structure of the Matrix position's bidding system so that it would conform to the seniority bidding system language of the CBA,” he wrote.
On whether the law requires workers with disabilities to get preference for transfers into vacant slots, the Eighth Circuit has held that it doesn't. Like the Seventh Circuit, the Tenth and District of Columbia circuits have said that it does (174 DLR AA-1, 9/7/12).
Michael T. Smith in Roselle, Ill., represented Dunderdale. Seyfarth Shaw LLP represented United.
To contact the reporter on this story: Patrick Dorrian in Washington at email@example.com
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