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BARNETT v U.S. AIR, INC., 9616669v2

U.S. 9th Circuit Court of Appeals

BARNETT v U.S. AIR, INC.
9616669v2

ROBERT BARNETT, No. 96-16669 Plaintiff-Appellant, D.C. No. v. CV-94-03874-DLJ U.S. AIR, INC., OPINION Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding

Argued and Submitted
June 22, 2000--San Francisco, California

Filed October 4, 2000

Before: Procter Hug, Jr., Chief Judge, Mary M. Schroeder,
Betty B. Fletcher, Harry Pregerson,
Diarmuid F. O'Scannlain, Stephen S. Trott,
Andrew J. Kleinfeld, A. Wallace Tashima,
Sidney R. Thomas, Raymond C. Fisher, Ronald M. Gould,
Circuit Judges.

Opinion by Judge B. Fletcher;

Gould, Circuit Judge, with whom Circuit Judge Thomas
joins, Concurring;

O'Scannlain, Circuit Judge, with whom Circuit Judges Trott
and Kleinfeld join, Dissenting;

Trott, Circuit Judge, with whom Circuit Judges O'Scannlain
and Kleinfeld join, Dissenting

_________________________________________________________________
SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________

Individual Rights/Disabilities

The court of appeals affirmed in part a judgment of the dis-
trict court, reversed in part and remanded. The court held that
summary judgment is inappropriate where a factual dispute
exists over whether a disabled employee's request to remain
in the position into which he was transferred following his
injury was a reasonable accommodation or constituted an
undue hardship for his employer.

Appellant Robert Barnett injured his back in 1990 while
working in a cargo position for appellee U.S. Air. After
returning from disability leave, Barnett found that he could
not perform all of the physical requirements of handling
freight. Barnett used his seniority to transfer into the compa-
ny's mail room.

Barnett's doctor recommended that he avoid heavy lifting
and excessive bending, twisting, turning, pushing and pulling,
and prolonged standing or sitting. The doctor concluded that
Barnett could perform the job requirements of the swing-shift
mail room position. Barnett learned that two employees with
greater seniority planned to exercise their seniority right to
transfer to the mail room, which would have bumped Barnett
and limited him to transferring to jobs in the cargo area. Bar-
nett wrote to his manager, Robert Benson, and requested that
he be allowed to stay in the mail room as a reasonable accom-
modation under the Americans with Disabilities Act (ADA).

U.S. Air did not respond for five months, but allowed Bar-
nett to remain in the mail room while the company was evalu-
ating his claims. Benson, acting on behalf of U.S. Air,
informed Barnett that he would be removed from the mail
room and placed on job injury leave. There was no substan-
tive discussion of Barnett's accommodation request. Barnett
sent Benson a second letter suggesting two alternative means
of accommodating his disability; (1) either that U.S. Air pro-
vide him with special lifting equipment in the cargo facility
or (2) that the cargo job be restructured so that he would do
only warehouse office work.

Barnett filed formal charges of discrimination with the
Equal Employment Opportunity Commission (EEOC).
Shortly thereafter, Barnett received a letter from U.S. Air's
Vice President of Human Resources denying Barnett's alter-
native requests for accommodation but informing him that he
could bid for any job within his restrictions. There is no evi-
dence that Barnett was qualified, without reasonable accom-
modation, for any other position in San Francisco or
elsewhere in the U.S. Air system. Barnett made no subsequent
bids for any other position. The EEOC issued a formal deter-
mination that there was reason to believe that U.S. Air had
discriminated against Barnett by denying him reasonable
accommodation under the ADA.

After Barnett filed suit, the district court granted U.S. Air's
motion for summary judgment for all claims. Barnett
appealed, arguing that U.S. Air violated the ADA by failing
to engage in the interactive process, by failing to reassign him
to the mail room, by failing to provide other reasonable
accommodation and by retaliating against him.

[1] The ADA requires employers to make 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 the business of such covered
entity. The ADA defines a qualified individual with a disabil-
ity as an individual with a disability who, with or without rea-
sonable accommodation, can perform the essential functions
of the employment position that such individual holds or
desires.

[2] Under the plain language of the statute, even if Barnett
could not perform the essential functions of the cargo posi-
tion, if he could perform the essential functions of another
position in the company which he desired he was covered
under the ADA.

[3] Under the ADA, employers are required to engage in an
interactive process with employees in order to identify and
implement appropriate reasonable accommodations. [4] The
interactive process is a mandatory rather than a permissive
obligation on the part of employers under the ADA, which is
triggered by an employee or an employee's representative
giving notice of the employee's disability and the desire for
accommodation. Where an employee is unable to make such
a request, if the company knows of the existence of the
employee's disability, the employer must assist in initiating
the interactive process.

[5] The interactive process requires communication and
good-faith exploration of possible accommodations between
employers and individual employees. [6] To demonstrate
good faith, employers can point to cooperative behavior that
promotes the identification of an appropriate accommodation.

[7] Employers who fail to engage in the interactive process
in good faith face liability for the remedies imposed by the
statute if a reasonable accommodation would have been possi-
ble. An employer cannot prevail at the summary judgment
stage if there is a genuine dispute as to whether the employer
engaged in good faith in the interactive process.

[8] Barnett triggered the interactive process obligation by
communicating to U.S. Air his desire for accommodation
based on his disability. [9] U.S. Air rejected Barnett's pro-
posed reasonable accommodations and offered no practical
alternatives. The special lifting equipment Barnett requested
for the cargo position may well have been an adequate reason-
able accommodation. Thus, U.S. Air's failure to engage in the
interactive process foreclosed at least one potentially reason-
able accommodation.

[10] U.S. Air did not seek a dialogue with Barnett but
instead rejected his proposed accommodations by letter. The
time between Barnett's initial accommodation request and
U.S. Air's rejection letter was nearly five months. This delay
and U.S. Air's failure to communicate did not reflect U.S.
Air's good faith engagement in the interactive process. Nor
was U.S. Air's offer to Barnett to bid on other jobs a reason-
able accommodation of a disabled employee. There was no
evidence that Barnett was qualified for any other position,
without accommodation, in the U.S. Air system. A triable
issue of fact existed as to whether a reasonable accommoda-
tion without undue hardship to the employer was possible.

[11] Reassignment is a reasonable accommodation. A
seniority system, while a factor in the undue hardship analy-
sis, is not a per se bar to reassignment. A case-by-case fact
intensive analysis is required to determine whether any partic-
ular reassignment would constitute an undue hardship to the
employer. If there is no undue hardship, a disabled employee
who seeks reassignment as a reasonable accommodation, if
otherwise qualified for a position, should receive the position
rather than merely have an opportunity to compete with non-
disabled employees.

[12] Summary judgment for U.S. Air was inappropriate.
Barnett initiated the interactive process and suggested remain-
ing in the mail room as his preferred accommodation. U.S.
Air did not show that the proposed accommodation was an
undue hardship. Barnett already occupied the mail room posi-
tion at the time of his request for reasonable accommodation.
Permanently reassigning Barnett to the mail room position as
a reasonable accommodation did not require bumping any
other employee from the position. While this accommodation
would eliminate one position from the seniority bid process,
U.S. Air failed to demonstrate that doing so would have
caused an undue hardship.

[13] To establish a prima facie case of retaliation under the
ADA, a plaintiff must show (1) that he or she engaged in or
was engaging in activity protected by the ADA, (2) the
employer subjected him or her to an adverse employment
decision, and (3) that there was a causal link between the pro-
tected activity and the employer's action.

[14] Barnett produced sufficient evidence to make a causal
connection based on the temporal proximity of the adverse
action and his request for reasonable accommodation. [15]
However, U.S. Air met its burden in offering a legitimate
non-retaliatory explanation for its employment decisions. [16]
Barnett failed to raise a genuine issue of fact suggesting that
U.S. Air's reason for putting him on job injury leave was a
mere pretext. Absent evidence that U.S. Air's decision was
for retaliatory reasons, Barnett's retaliation claim should not
have survived summary judgment.

Judge Gould concurred, writing to set forth his views on
the relationship between the demonstration of reasonableness
and undue hardship.

Judge O'Scannlain, with whom Judges Trott and Kleinfeld
joined, dissented, writing that Barnett was not disabled within
the meaning of the ADA.

Judge Trott, with whom Judges O'Scannlain and Kleinfeld
joined, dissented, writing that because Barnett's proposed
accommodation would have violated U.S. Air's legitimate
seniority policy, the proposed accommodation was unreason-
able under the ADA.

_________________________________________________________________

COUNSEL

Robert W. Rychlik, Palm Desert, California for the plaintiff-
appellant.

Raymond W. Thomas, Los Angeles, for the defendant-
appellee.

Susan L.P. Starr, Washington, D.C., for the amicus curiae.

_________________________________________________________________

OPINION

B. FLETCHER, Circuit Judge:

Robert Barnett brought suit under the Americans with Dis-
abilities Act (ADA) and he appeals the district court's dis-
missal on summary judgment of his claims. Barnett, who
suffered a serious back injury while on the job, argues that
U.S. Air discriminated against him by denying him accommo-
dation, by failing to engage in the interactive process and by
retaliating against him for filing charges with the Equal
Employment Opportunity Commission (EEOC). This appeal
raises several issues of first impression in this circuit, includ-
ing the nature and scope of an employer's obligation to
engage in the interactive process, whether reassignment is a
reasonable accommodation in the context of a seniority sys-
tem and the appropriate standard for evaluating retaliation
claims under the ADA. We reverse the district court's grant
of summary judgment in favor of U.S. Air on all claims
except for the retaliation claim and we remand for trial.

Robert Barnett worked for ten years as a customer service
agent for U.S. Air and its predecessor, Pacific Southwest Air-
lines. In 1990, Barnett injured his back while working in a
cargo position for U.S. Air at San Francisco International Air-
port. After returning from disability leave, Barnett found that
he could not perform all of the physical requirements of han-
dling freight. Barnett used his seniority to transfer into the
company's mail room.

In March and August of 1992, Barnett's doctor and chiro-
practor both recommended that he avoid heavy lifting and
excessive bending, twisting, turning, pushing and pulling, and
prolonged standing or sitting. The doctor concluded that Bar-
nett could perform the job requirements of the swing-shift
mail room position. Barnett learned in August of 1992 that
two employees with greater seniority planned to exercise their
seniority right to transfer to the mail room. Once bumped,
Barnett's seniority would have limited him to transferring to
jobs in the cargo area. Barnett wrote to his station manager,
Robert Benson, on August 31, 1992 and requested that he be
allowed to stay in the mail room as a reasonable accommoda-
tion under the ADA.

U.S. Air did not respond to Barnett for five months but
allowed him to remain in the mail room for the period while
the company was evaluating his claims. On January 20, 1993,
Benson, acting on behalf of U.S. Air, informed Barnett that he
would be removed from the mail room and placed on job
injury leave. There was no substantive discussion of Barnett's
accommodation request. Following the meeting, Barnett sent
Benson a second letter suggesting two alternative means of
accommodating his disability. Barnett proposed either that
U.S. Air provide him with special lifting equipment in the
cargo facility or that the cargo job be restructured so that he
would do only warehouse office work.

Barnett filed formal charges of discrimination with the
EEOC in February of 1993. On March 4, 1993, Barnett
received a letter from U.S. Air's Vice President of Human
Resources denying Barnett's alternative requests for accom-
modation but informing him that he could bid for any job
within his restrictions. There is no evidence that Barnett was
qualified, without reasonable accommodation, for any other
position in San Francisco or elsewhere in the U.S. Air system.
Barnett made no subsequent bids for any other position. In
August of 1994, the EEOC issued a formal determination that
there was reason to believe that U.S. Air had discriminated
against Barnett by denying him reasonable accommodation
under the ADA.

After Barnett filed suit, the district court granted U.S. Air's
motion for summary judgment for all claims except Barnett's
claim that U.S. Air discriminated by not participating in the
interactive process. Upon receiving supplementary briefing,
the district court granted summary judgment to U.S. Air on
that claim as well. Barnett, in his appeal, argues that U.S. Air
violated the ADA by failing to engage in the interactive pro-
cess, by failing to reassign him to the mail room, by failing
to provide other reasonable accommodation and by retaliating
against him.

We review de novo the district court's grant of summary
judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.
1996). In determining whether there are any genuine issues of
material fact, we must view the evidence in the light most
favorable to the nonmoving party. Id.

Barnett claims that U.S. Air had an obligation to engage in
an interactive process to identify possible reasonable accom-
modations. Barnett further asserts that U.S. Air's failure to
engage in this process gives rise to liability under the ADA.
The district court concluded that an employer is liable for fail-
ing to engage in the interactive process but that U.S. Air had
sufficiently engaged in the interactive process to avoid such
liability.

Although disabled Americans have played prominent roles
in our nation's history, from the founders of our Constitution
to our longest serving President, they have also faced a long
history of exclusion. Congress, in the opening section of the
ADA, recognized that some "43,000,000 Americans have one
or more physical or mental disabilities" and that:
individuals with disabilities are a discrete and insular
minority who have been faced with restrictions and
limitations, subjected to a history of purposeful
unequal treatment, and relegated to a position of
political powerlessness in our society, based on char-
acteristics that are beyond the control of such indi-
viduals and resulting from stereotypic assumptions
not truly indicative of the individual ability of such
individuals to participate in, and contribute to, soci-
ety;

42 U.S.C. S 12101(a)(7).

The ADA was designed to end the exclusion of people with
disabilities from the workplace and from other realms of
social life. As President George Bush explained upon signing
the ADA:

Today, we're here to rejoice in and celebrate another
`Independence Day,' one that is long overdue. With
today's signing of the landmark Americans for [sic]
Disabilities Act, every man, woman, and child with
a disability can now pass through once-closed doors
into a bright new era of equality, independence and
freedom . . . Today's legislation brings us closer to
that day when no Americans will ever again be
deprived of their basic guarantees of life, liberty, and
the pursuit of happiness.

President George Bush, "Remarks on Signing the Americans
with Disabilities Act of 1990," (July 26, 1990), reprinted in
Bernard D. Reams, Jr., et. al., eds., Disability Law in the
United States: A Legislative History of the Americans with
Disabilities Act of 1990, Public Law 101-336, Vol. I, Docu-
ment No. 9 (1992).

In introducing the ADA, Senator Harkin called the statute
"a broad and remedial bill of rights for individuals with dis-
abilities. It is their emancipation proclamation. " 135 Cong.
Rec. S 4984 (May 9, 1989) (statement of Sen. Harkin)
reprinted in Disability Law, Vol. VI, Document No. 36. Cit-
ing a nationwide poll, Senator Harkin pointed out that sixty-
six percent of working-age disabled persons who are not
working, or some 8.2 million persons, want to have a job and
that eighty-two percent of people with disabilities would give
up their government benefits in favor of full-time employ-
ment. Id. at S 4985. Thus, the workplace protections of the
ADA are central to the Act's goals of assuring "equality of
opportunity, full participation, independent living, and eco-
nomic self-sufficiency" for people with disabilities. 42 U.S.C.
S 12101(a)(8).

[1] Title I of the ADA insures full opportunities for people
with disabilities in the workplace by requiring reasonable
accommodation of employees' disabilities by their employers.
The ADA prohibits employers from discriminating against a
disabled employee1 by "not making reasonable accommoda-
tions to the known physical or mental limitations of an other-
wise 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 the business of such covered entity. " 42 U.S.C.
S 12112(b)(5)(A). The ADA defines a "qualified individual
with a disability" as "an individual with a disability who, with
or without reasonable accommodation, can perform the essen-
tial functions of the employment position that such individual
holds or desires." 42 U.S.C. S 12111(8).
[2] U.S. Air argues that Barnett is not covered under the
ADA because he was not "qualified" for the cargo position
due to his disability. If Barnett could perform the essential
functions of the cargo position "with or without reasonable
accommodation" he would be qualified under the ADA. 42
U.S.C. S 12112(b)(5)(A). Furthermore, the statutory defini-
tion of a "qualified individual" covers individuals who can
perform the "essential functions" of a position which the indi-
vidual either "holds or desires." Therefore, even if Barnett
could not perform the essential functions of the cargo posi-
tion, if he could perform the essential functions of another
position in the company which he "desires" he is covered
under the ADA. The plain language of the statute requires this
reading of the statute. To read the statute otherwise would
render the word "desires" meaningless. See Gustafson v.
Alloyd Co., 513 U.S. 561, 574 (1995) ("the Court will avoid
a reading which renders some words altogether redundant").
Our conclusion that a "qualified individual with a disability"
includes individuals who could perform the essential func-
tions of a reassignment position, with or without reasonable
accommodation, even if they cannot perform the essential
functions of the current position is supported by nearly every
circuit which has considered the issue. See Smith v. Midland
Brake, Inc., 180 F.3d 1154, 1161-62 (10th Cir. 1999) (en
banc) (collecting cases).

[3] Barnett asserts that U.S. Air failed to fulfill its obliga-
tion to engage in an interactive process to find a reasonable
accommodation. The legislative history makes clear that
employers are required to engage in an interactive process
with employees in order to identify and implement appropri-
ate reasonable accommodations. The Senate Report explained
that: "A problem-solving approach should be used to identify
the particular tasks or aspects of the work environment that
limit performance and to identify possible accommodations
. . . employers first will consult with and involve the individ-
ual with a disability in deciding on the appropriate accommo-
dation." S. Rep. No. 101-116, at 34 (1989); see also H.R.
Rep. No. 101-485, pt. 2, at 65 (1990).

The ADA authorizes the EEOC to issue regulations imple-
menting the ADA. See 42 U.S.C. S 12116. The EEOC regula-
tions outline the nature of the interactive process:

To determine the appropriate reasonable accommo-
dation it may be necessary for the [employer] to ini-
tiate an informal, interactive process with the
qualified individual with a disability in need of the
accommodation. This process should identify the
precise limitations resulting from the disability and
potential reasonable accommodations that could
overcome those limitations.

29 C.F.R.S 1630.2(o)(3).

The phrase "may be necessary" is merely a recognition that
in some circumstances the employer and employee can easily
identify an appropriate reasonable accommodation. Any
doubt that the EEOC views the interactive process as a man-
datory obligation is resolved by the EEOC's interpretive guid-
ance, which states that "the employer must make a reasonable
effort to determine the appropriate accommodation. The
appropriate reasonable accommodation is best determined
through a flexible, interactive process that involves both the
employer and the [employee] with a disability. " 29 C.F.R. Pt.
1630, App. S 1630.9. The EEOC's Enforcement Guidance
also specifies the nature of the interactive process: "The
employer and the individual with a disability should engage
in an informal process to clarify what the individual needs and
identify the appropriate accommodation." EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, EEOC Compli-
ance Manual (CCH), S 902, No. 915.002 (March 1, 1999), at
5440.

The interactive process is triggered either by a request for
accommodation by a disabled employee or by the employer's
recognition of the need for such an accommodation. An
employee requesting a reasonable accommodation should
inform the employer of the need for an adjustment due to a
medical condition using " `plain English' and need not men-
tion the ADA or use the phrase `reasonable accommoda-
tion.' " Id. at 5438. In some circumstances, according to the
EEOC, the employee need not even request the accommoda-
tion: "An employer should initiate the reasonable accommo-
dation interactive process without being asked if the
employer: (1) knows that the employee has a disability, (2)
knows, or has reason to know, that the employee is experienc-
ing workplace problems because of the disability, and (3)
knows, or has reason to know, that the disability prevents the
employee from requesting a reasonable accommodation. " Id.
at 5459.

Almost all of the circuits to rule on the question have held
that an employer has a mandatory obligation to engage in the
interactive process and that this obligation is triggered either
by the employee's request for accommodation or by the
employer's recognition of the need for accommodation. See
Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952
(8th Cir. 1999) ("when the disabled individual requests
accommodation, it becomes necessary to initiate the interac-
tive process"); Smith, 180 F.3d at 1172 (holding that the duty
to engage in the interactive process is triggered once the
employee "convey[s] to the employer a desire to remain with
the company despite his or her disability and limitations" and
that "the obligation to engage in an interactive process is
inherent in the statutory obligation to offer a reasonable
accommodation to an otherwise qualified disabled employ-
ee"); Taylor v. Phoenixville Sch. Dist.,184 F.3d 296, 315 (3d
Cir. 1999) (holding that the employer's duty to engage in the
interactive process is triggered "[o]nce the employer knows of
the disability and the employee's desire for accommodations"
and that the employer must " `meet the employee half-way' "
by requesting additional information) (quoting Bultemeyer v.
Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th
Cir. 1996)); Bultemeyer, 100 F.3d at 1285 ("The employer has
to meet the employee half-way, and if it appears that the
employee may need an accommodation but doesn't know how
to ask for it, the employer should do what it can to help");
Taylor v. Principal Fin. Group Inc., 93 F.3d 155, 165 (5th
Cir. 1996) ("Thus, it is the employee's initial request for an
accommodation which triggers the employer's obligation to
participate in the interactive process of determining one"). But
see Willis v. Conopco, 108 F.3d 282, 285 (11th Cir. 1997)
(holding that the plaintiff must produce evidence that a rea-
sonable accommodation is available before an employer is
obligated to engage in the interactive process). 2

U.S. Air argues that Barnett bears the burden of demon-
strating the availability of a reasonable accommodation. To
put the entire burden for finding a reasonable accommodation
on the disabled employee or, effectively, to exempt the
employer from the process of identifying reasonable accom-
modations, conflicts with the goals of the ADA. The interac-
tive process is at the heart of the ADA's process and essential
to accomplishing its goals. It is the primary vehicle for identi-
fying and achieving effective adjustments which allow dis-
abled employees to continue working without placing an
"undue burden" on employers. Employees do not have at their
disposal the extensive information concerning possible alter-
native positions or possible accommodations which employ-
ers have. Putting the entire burden on the employee to identify
a reasonable accommodation risks shutting out many workers
simply because they do not have the superior knowledge of
the workplace that the employer has.

As the Third Circuit explained, since the regulations
require the interactive process to identify appropriate accom-
modations, "it would make little sense to insist that the
employee must have arrived at the end product of the interac-
tive process before the employer has a duty to participate in
that process." Taylor, 184 F.3d at 316. At the same time, the
employee holds essential information for the assessment of
the type of reasonable accommodation which would be most
effective.3 While employers have superior knowledge regard-
ing the range of possible positions and can more easily per-
form analyses regarding the "essential functions " of each,
employees generally know more about their own capabilities
and limitations.

The statute further does not allow employers to avoid rea-
sonable accommodation absent a showing of undue hardship.
The ADA's reasonable accommodation requirement puts the
burden on the employer to show that a proposed accommoda-
tion will cause undue hardship.4See 42 U.S.C.
S 12112(b)(5)(A) (an employer violates the ADA by "not
making reasonable accommodations . . . unless such covered
entity can demonstrate that the accommodation would impose
an undue hardship on the operation of the business of such
covered entity".).

[4] Therefore, we join explicitly with the vast majority of
our sister circuits in holding that the interactive process is a
mandatory rather than a permissive obligation on the part of
employers under the ADA and that this obligation is triggered
by an employee or an employee's representative giving notice
of the employee's disability and the desire for accommoda-
tion. In circumstances in which an employee is unable to
make such a request, if the company knows of the existence
of the employee's disability, the employer must assist in initi-
ating the interactive process.5

We next turn to the requirements of the interactive process.
Both the legislative history and the EEOC regulations detail
the nature of the interaction required of employers and
employees. The Senate Report outlined four steps which
employers should follow when engaging in the interactive
process:

[T]he Committee believes the employer should con-
sider four informal steps to identify and provide an
appropriate accommodation.

The first informal step is to identify barriers to
equal opportunity. This includes identifying and dis-
tinguishing between essential and nonessential job
tasks and aspects of the work environment of the rel-
evant position(s).

. . . Having identified the barriers to job perfor-
mance caused by the disability, the second informal
step is to identify possible accommodations.

. . . Having identified one or more possible accom-
modations, the third informal step is to assess the
reasonableness of each in terms of effectiveness and
equal opportunity.

. . . The final informal step is to implement the
accommodation that is most appropriate for the
employee and the employer and that does not impose
an undue hardship on the employer's operation or to
permit the employee to provide his or her own
accommodation if it does not impose an undue hard-
ship.

. . . The expressed choice of the applicant or
employee shall be given primary consideration
unless another effective accommodation exists that
would provide a meaningful equal employment
opportunity.

S. Rep. No. 101-116, at 35 (1989); see also H.R. Rep. No.
101-485, pt. 2, at 66 (1990).

The EEOC also outlines the four steps critical to the inter-
active process. Once a request for a reasonable accommoda-
tion has been made, the EEOC requires an employer to:
(1) Analyze the particular job involved and deter-
mine its purpose and essential functions;

(2) Consult with the individual with a disability to
ascertain the precise job-related limitations imposed
by the individual's disability and how those limita-
tions could be overcome with a reasonable accom-
modation;

(3) In consultation with the individual to be
accommodated, identify potential accommodations
and assess the effectiveness each would have in
enabling the individual to perform the essential func-
tions of the position and;

(4) Consider the preference of the individual to be
accommodated and select and implement the accom-
modation that is most appropriate for both the
employee and the employer.

29 C.F.R. Pt. 1630, App. S 1630.9.

[5] The interactive process requires communication and
good-faith exploration of possible accommodations between
employers and individual employees. The shared goal is to
identify an accommodation that allows the employee to per-
form the job effectively. Both sides must communicate
directly, exchange essential information6 and neither side can
delay or obstruct the process. See Smith, 180 F.3d at 1172
("The interactive process includes good-faith communications
between the employer and employee."); Beck v. University of
Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) ("A
party that obstructs or delays the interactive process is not act-
ing in good faith. A party that fails to communicate, by way
of initiation or response, may also be acting in bad faith.").

[6] In order to demonstrate good faith, employers can point
to cooperative behavior which promotes the identification of
an appropriate accommodation. Employers should "meet with
the employee who requests an accommodation, request infor-
mation about the condition and what limitations the employee
has, ask the employee what he or she specifically wants, show
some sign of having considered employee's request, and offer
and discuss available alternatives when the request is too bur-
densome." Taylor, 184 F.3d at 317.

The interactive process requires that employers analyze job
functions to establish the essential and nonessential job tasks.
In order to identify the barriers to job performance, employers
must consult and cooperate with disabled employees so that
both parties discover the precise limitations and the types of
accommodations which would be most effective. The evalua-
tion of proposed accommodations requires further dialogue
and an assessment of the effectiveness of each accommoda-
tion, in terms of enabling the employee to successfully per-
form the job. See 29 C.F.R. Pt. 1630, App.S 1630.9.

Once the employer and employee have identified and
assessed the range of possible reasonable accommodations,
the legislative history directs that "the expressed choice of the
applicant shall be given primary consideration unless another
effective accommodation exists that would provide a mean-
ingful equal employment opportunity." S. Rep. No. 101-116,
at 35 (1989); see also H.R. Rep. No. 101-485, at 67 (1990).
An appropriate reasonable accommodation must be effective,
in enabling the employee to perform the duties of the position.

We next turn to the consequences for employers who fail
to engage in the interactive process in good faith. The Seventh
Circuit held that "courts should attempt to isolate the cause of
the breakdown [in the interactive process] and then assign
responsibility" so that "[l]iability for failure to provide rea-
sonable accommodations ensues only where the employer
bears responsibility for the breakdown." Beck , 75 F.3d at
1135-37.

Most circuits have held that liability ensues for failure to
engage in the interactive process when a reasonable accom-
modation would otherwise have been possible. See Smith, 180
F.3d at 1174; Taylor, 184 F.3d at 317-18; Bultemeyer, 100
F.3d at 1285; Principal, 93 F.3d at 165. The range of possible
reasonable accommodations, for purposes of establishing lia-
bility for failure to accommodate, can extend beyond those
proposed:

an employer who acts in bad faith in the interactive
process will be liable if the jury can reasonably con-
clude that the employee would have been able to
perform the job with accommodations. In making
that determination, the jury is entitled to bear in
mind that had the employer participated in good
faith, there may have been other, unmentioned possi-
ble accommodations.

Taylor, 184 F.3d at 317-318.

A number of circuits have further held that an employer
cannot prevail at summary judgment if there is a genuine dis-
pute as to whether the employer engaged in the interactive
process in good faith. See Fjellestad, 188 F.3d at 953 ("we
find that summary judgment is typically precluded when there
is a genuine dispute as to whether the employer acted in good
faith and engaged in the interactive process of seeking reason-
able accommodations"); Taylor, 184 F.3d at 318 ("where
there is a genuine dispute about whether the employer acted
in good faith, summary judgment will typically be preclud-
ed"); Baert v. Euclid Beverage, Ltd. , 149 F.3d 626, 633-34
(7th Cir. 1998) (refusing to grant an employer summary judg-
ment because disputes of fact remained about which party
caused the breakdown in the interactive process).

The interactive process is the key mechanism for facilitat-
ing the integration of disabled employees into the workplace.
Employers who reject this core process must face liability
when a reasonable accommodation would have been possible.
Without the interactive process, many employees will be
unable to identify effective reasonable accommodations.
Without the possibility of liability for failure to engage in the
interactive process, employers would have less incentive to
engage in a cooperative dialogue and to explore fully the exis-
tence and feasibility of reasonable accommodations. The
result would be less accommodation and more litigation, as
lawsuits become the only alternative for disabled employees
seeking accommodation. This is a long way from the frame-
work of cooperative problem solving based on open and indi-
vidualized exchange in the workplace that the ADA intended.
Therefore, summary judgment is available only where there is
no genuine dispute that the employer has engaged in the inter-
active process in good faith.

[7] We hold that employers, who fail to engage in the inter-
active process in good faith, face liability for the remedies
imposed by the statute if a reasonable accommodation would
have been possible. We further hold that an employer cannot
prevail at the summary judgment stage if there is a genuine
dispute as to whether the employer engaged in good faith in
the interactive process.7
[8] In this case, Barnett triggered the interactive process
obligation by communicating to U.S. Air his desire for
accommodation based on his disability. In fact, Barnett went
even further and identified, in addition to assignment to the
mail room, at least two different accommodations which
might have allowed him to remain in the cargo facility. How-
ever, U.S. Air appears not to have seriously considered the
suggestions.

[9] U.S. Air rejected all three of Barnett's proposed reason-
able accommodations and offered no practical alternatives.
The special lifting equipment Barnett requested for the cargo
position may well have been an adequate reasonable accom-
modation. Barnett researched mechanical lifting devices and
proposed that U.S. Air purchase a low-tech device to assist
him in the loading and unloading of cargo. U.S. Air's only
offer was for a forklift to lift individual suitcases. Proposing
the use of a forklift to lift an individual suitcase is like giving
Barnett a shotgun to swat a fly or a Phillips head screwdriver
for a flat screw. U.S. Air might as well have told Barnett to
use a backhoe. That a tool performs a similar function doesn't
make it a proper tool for a particular job. Barnett sought a
mechanical accommodation to compensate for his disability;
U.S. Air, in effect, ignored his request. Thus, U.S. Air's fail-
ure to engage in the interactive process foreclosed at least one
potentially reasonable accommodation.

It is less clear whether Barnett's other suggestion of modi-
fying the cargo position to require only desk work was a rea-
sonable accommodation. Although U.S. Air argues that this
accommodation would require the elimination of essential
functions of the cargo job, it may only have required reassign-
ment of functions among personnel. Although U.S. Air had
performed a job analysis on the position in 1992, for purposes
of workers' compensation, this analysis did not involve an
assessment of the position's essential functions. The duties of
the cargo position were divided between front office, ware-
house and lifting cargo. Not all cargo agents lifted cargo on
any given day and employees were apparently allowed to
trade job duties and avoid lifting cargo. Yet, the title of the
position is a general one of "cargo agent." Thus, there is a suf-
ficient factual dispute to require further proceedings to evalu-
ate whether this accommodation would have required any
elimination of the essential functions of the position.

[10] U.S. Air rejected each of Barnett's several proposed
reasonable accommodations and merely offered that Barnett
could apply for any position for which he was qualified given
his restrictions and for which he had sufficient seniority. U.S.
Air did not seek to have a dialogue with Barnett but instead
rejected his proposed accommodations by letter. The time
between Barnett's initial accommodation request and U.S.
Air's rejection letter was nearly five months. This delay and
U.S. Air's failure to communicate do not reflect good faith
engagement in the interactive process on the part of U.S. Air.
Nor is U.S. Air's offer to Barnett to bid on other jobs, a right
he already had, a reasonable accommodation of a disabled
employee. There is no evidence in the record that Barnett was
qualified for any other position, without accommodation, in
San Francisco or elsewhere in the U.S. Air system. This is not
a case where it is obvious that no modification could enable
the employee to perform the essential functions of a job or
where the employee has caused the process to break down.
Given U.S. Air's failure to engage in the interactive process,
liability would be appropriate if a reasonable accommodation
would otherwise have been possible. There remains conflict-
ing evidence in the record as to whether a reasonable accom-
modation without undue hardship to the employer was
possible. Thus, a triable issue of fact exists on this issue.

III

Barnett argues that it would have been a reasonable accom-
modation for U.S. Air to allow him to remain in the mail
room, by making an exception to its seniority policy. The
ADA explicitly states that reasonable accommodation may
include reassignment. See 42 U.S.C. S 12111(9)(B). The key
questions are whether a seniority system is a per se bar to
reassignment as a reasonable accommodation and whether a
disabled employee seeking reasonable accommodation should
have priority in reassignment.

The EEOC's enforcement guidance makes it clear that reas-
signment is a reasonable accommodation to which disabled
employees should have priority over non-disabled employees
and even when transfers are normally not allowed:

The ADA requires employers to provide reasonable
accommodations to individuals with disabilities,
including reassignment, even though they are not
available to others. Therefore, an employer who does
not normally transfer employees would still have to
reassign an employee with a disability, unless it
could show that the reassignment caused an undue
hardship. And, if an employer has a policy prohibit-
ing transfers, it would have to modify that policy in
order to reassign an employee with a disability,
unless it could show undue hardship.

EEOC Enforcement Guidance, EEOC Compliance Manual at
5454.

The EEOC explains that a modification in workplace policy
can be a reasonable accommodation, absent undue hardship:
"[Reassignment] must be provided to an employee who,
because of a disability, can no longer perform the essential
functions of his/her current position, with or without reason-
able accommodation, unless the employer can show that it
would be undue hardship." Id. at 5452.

U.S. Air argues that the ADA guarantees Barnett no more
than the opportunity to apply for and compete for reassign-
ment. However, the EEOC leaves no doubt that reassignment
involves more than a mere opportunity for disabled employ-
ees to compete: "Reassignment means that the employee gets
the vacant position if s/he is qualified for it. Otherwise, reas-
signment would be of little value and would not be imple-
mented as Congress intended." Id. at 5456.

En banc decisions in several circuits adopt the EEOC's
position. In Aka v. Washington Hospital Center 156 F.3d
1284 (D.C. Cir. 1998) (en banc), the D.C. Circuit, sitting en
banc, rejected the argument that reassignment entitles a dis-
abled employee to nothing more than a chance to compete for
a position. The D.C. Circuit explained that the view that the
ADA requires no priority for disabled employees in reassign-
ment "misunderstand[s] both the text and legislative history of
the statute, and deviate[s] from the construction of the statute
by other circuits . . . Indeed the ADA's reference to reassign-
ment would be redundant if permission to apply were all it
meant." Id. at 1304.

The Tenth Circuit, sitting en banc, also made clear that the
ADA's "reassignment obligation must mean something more
than merely allowing a disabled person to compete equally
with the rest of the world" and pointed out that reassignment
is "one of the forms of reasonable accommodation specifi-
cally mentioned by the statute to be utilized if necessary and
reasonable to keep an existing disabled employee employed
by the company." Smith, 180 F.3d at 1165.

The question of whether an employer's unilaterally
imposed seniority system trumps a disabled employee's right
to reassignment has not been answered directly by any other
circuit.8 Although there is no legislative history specifically
on a seniority system outside of the collective bargaining con-
text, the legislative history that does exist argues against any
per se rule barring reassignment in the context of seniority
systems.

The legislative history indicates that a collective bargaining
agreement can be a factor in determining the reasonableness
of an accommodation but rejects any per se bar. As explained
in the House Report:

if a collective bargaining agreement reserves certain
jobs for employees with a given amount of seniority,
it may be considered as a factor in determining
whether it is a reasonable accommodation to assign
an employee with a disability without seniority to the
job. However, the agreement would not be determi-
native on the issue.

H.R. Rep. No. 101-485, pt. 2, at 63 (1990); see also S. Rep.
No. 101-116, at 32 (1989). In addition to rejecting a per se
bar, both reports envision that collective bargaining agree-
ments will incorporate provisions allowing for compliance
with the ADA "by ensuring that agreements negotiated after
the effective date of this title contain a provision permitting
the employer to take all actions necessary to comply with this
legislation." Id.

The EEOC also rejects any blanket rule that a collective
bargaining agreement trumps a reasonable accommodation:
"In the EEOC's view, such a per se rule nullifies Congress'
intent that undue hardship always be determined on a case-by-
case basis." EEOC Guidance, EEOC Compliance Manual at
5463. Instead, the EEOC requires a fact specific analysis
which treats the collective bargaining agreement (CBA) as
another factor in judging undue hardship:

First, an employer should determine if it could pro-
vide a reasonable accommodation that would remove
the workplace barrier without violating the CBA. If
no reasonable accommodation exists that avoids vio-
lating the CBA, then the ADA requires an employer
and a union, as a collective bargaining representa-
tive, to negotiate in good faith a variance to the CBA
so that the employer may provide a reasonable
accommodation, except if the proposed accommoda-
tion unduly burdens the expectations of other work-
ers (i.e., causes undue hardship). Undue hardship
must be assessed on a case-by-case basis to deter-
mine the extent to which the proposed accommoda-
tion would affect the expectations of other
employees. Among the relevant factors to assess
would be the duration and severity of any adverse
effects caused by granting a variance and the number
of employees whose employment opportunities
would be affected by the variance.

Id.

Both the legislative history and the EEOC reject any per se
rule barring reasonable accommodation even when reassign-
ment would conflict with a collective bargaining agreement.9
Here, where there is no collective bargaining agreement, no
bargained for rights are involved. It would seem that the
seniority system without more should not bar reassignment.
Without reassignment as a reasonable accommodation, even
in the context of a seniority system, the goals of the ADA
could easily be frustrated. Any per se rule barring reassign-
ment because of conflicts with a seniority system would
sharply limit the range of available accommodations without
any required showing of an undue burden on the employer. In
many cases this would eliminate the most effective or the only
effective reasonable accommodation.
A per se bar conflicts with the basic premise of the ADA,
which grounds accommodation in the individualized needs of
the disabled employee and the specific burdens which such
accommodation places on an employer. Only in the event of
"undue hardship" can a seniority system be a bar to reason-
able accommodation. 42 U.S.C. S 12112(b)(5)(A). The ADA
defines "undue hardship" as "an action requiring significant
difficulty or expense." 42 U.S.C. 12111(10)(A). The statute
offers a list of factors to be considered in appraising whether
there is undue hardship, including the cost of the accommoda-
tion, the overall financial resources of the company and the
scope of the employer's operations. See 42 U.S.C.
12111(10)(B).10 While reassignment might constitute an
undue burden in some cases, courts cannot assume that which
is the employer's burden to prove.

[11] We hold that reassignment is a reasonable accommo-
dation and that a seniority system is not a per se bar to reas-
signment. However, a seniority system is a factor in the undue
hardship analysis. A case-by-case fact intensive analysis is
required to determine whether any particular reassignment
would constitute an undue hardship to the employer. If there
is no undue hardship, a disabled employee who seeks reas-
signment as a reasonable accommodation, if otherwise quali-
fied for a position, should receive the position rather than
merely have an opportunity to compete with non-disabled
employees.

[12] Summary judgment was inappropriate in this case.
Barnett initiated the interactive process and suggested remain-
ing in the mail room as his preferred accommodation. U.S.
Air did not show that the proposed accommodation was an
undue hardship. Barnett already occupied the mail room posi-
tion at the time of his request for reasonable accommodation.
Therefore, permanently reassigning Barnett to the mail room
position as a reasonable accommodation did not require
"bumping" any other employee from the position. While this
accommodation would eliminate one position from the senior-
ity bid process, U.S. Air has failed to demonstrate that doing
so would cause an undue hardship. It would need to demon-
strate that accommodating Barnett in this fashion would cause
undue disruption in its seniority system. In its rebuttal, U.S.
Air offered only the statement of its Vice President of Human
Resources, who feared a "domino effect," and a copy of its
seniority policy. Yet the record provides no information con-
cerning the number of ADA claimants at U.S. Air, their
seniority, or their need to be accommodated by exceptions to
the seniority rules.11 Mere speculation is insufficient to sup-
port summary judgment that the requested accommodation
would impose undue hardship. We hold that a triable issue of
fact exists.
IV

Barnett claims that U.S. Air retaliated against him for his
request for accommodation by placing him on involuntary job
injury leave in January of 1993 and by terminating his salary
continuance in February of 1993. The district court granted
summary judgment to U.S. Air on this claim.

The ADA provides that: "[n]o person shall discriminate
against any individual because such individual has opposed
any act or practice made unlawful by this chapter. " 42 U.S.C.
S 12203 (a). The ADA further makes it "unlawful to coerce,
intimidate, threaten or interfere with any individual in the
exercise or enjoyment of, or on account of his or her having
exercised or enjoyed . . . any right granted or protected by this
chapter." 42 U.S.C. S 12203 (b).

In order to resolve Barnett's retaliation claim, it is neces-
sary to establish a framework for analyzing retaliation claims
under the ADA. Most other circuits have adopted the Title
VII framework for analyzing ADA retaliation claims. See
Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d
155, 159 (2d Cir. 1999); Talanda v. KFC National Manage-
ment Co., 140 F.3d 1090, 1095 (7th Cir. 1998); Sherrod v.
American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998);
Penny v. United Parcel Service, 128 F.3d 408, 417 (6th Cir.
1997); Stewart v. Happy Herman's Cheshire Bridge , 117 F.3d
1278, 1287 (11th Cir. 1997); Soileau v. Guilford of Maine,
Inc., 105 F.3d 12, 16 (1st Cir. 1997).

Adopting the Title VII framework incorporates a compre-
hensive body of law analyzing workplace retaliation. This
seems useful. Therefore, we join our sister circuits in adopting
the Title VII retaliation framework for ADA retaliation
claims.

[14] The district court concluded that Barnett failed to
make out a prima facie case because he failed to demonstrate
a causal connection between his request for accommodation
and his involuntary placement on job injury leave. Barnett
produced sufficient evidence to make a causal connection
based on the temporal proximity of the adverse action and his
request for reasonable accommodation. See Id. at 1376.

[15] However, U.S. Air met its burden in offering a "legiti-
mate non-retaliatory explanation for its [employment] deci-
sions." Id. After receiving Barnett's request for
accommodation, U.S. Air created a temporary limited duty
position for him. After five months, U.S. Air put Barnett on
job injury leave.

[16] Barnett failed to raise a genuine issue of fact suggest-
ing that U.S. Air's reason for putting him on job injury leave
was a mere pretext. U.S. Air may have been mistaken as to
its obligations under the ADA but it did keep Barnett in the
limited duty position for twice the usual time. Absent evi-
dence that U.S. Air's decision was for retaliatory reasons,
Barnett's retaliation claim should not have survived summary
judgment.

We reverse the district court's summary judgment dis-
missal of Barnett's ADA discrimination claims. U.S. Air has
failed to engage in good faith in the interactive process. U.S.
Air should face liability for the remedies imposed by the stat-
ute if reasonable accommodation would be possible without
an undue hardship to the company. Barnett's request to
remain in the mail room was a reasonable accommodation
absent proof of undue hardship and possible accommodations
in the cargo facility may have been reasonable accommoda-
tions absent proof of undue hardship. Only a trial can resolve
the factual dispute over whether reasonable accommodation
can be made for Barnett. Therefore, Barnett's discrimination
claims should be remanded to the district court for trial. The
district court's summary judgment dismissal of Barnett's
retaliation claims is affirmed.

AFFIRMED in part, REVERSED in part and
REMANDED.

_________________________________________________________________

GOULD, Circuit Judge, with whom Circuit Judge Thomas,
joins, Concurring:

I concur in the court's excellent opinion, but set forth my
views concerning the relationship between the demonstration
of reasonableness and undue hardship. The court's opinion
touches upon the relationship between reasonable accommo-
dation and undue hardship. See Majority Op. at n.4. I believe
that a broader explication of this relationship is desirable.

Under the statute, a reasonable accommodation is one that
will allow the employee to perform the essential functions of
the job. An accommodation is reasonable if it will work for
the employee. Reasonableness has nothing to do with the "dif-
ficulty or expense" that the employer will face in making the
accommodation.

The ADA defines "reasonable accommodation" with exam-
ples of accommodations that self-evidently will assist people
with various disabilities to perform the essential functions of
their jobs. See 42 U.S.C. S 12111(9). Nothing in the definition
refers to the employer or to the effect on the employer of pro-
viding such accommodation. See Steven Miller, Disability
Civil Rights and a New Paradigm for the Twenty-First Cen-
tury: The Expansion of Civil Rights Beyond Race, Gender,
and Age, 1 U. Pa. J. Lab. & Employment L. 511, 519 (1998)
(noting this distinction).

The statute's definition of "discrimination" supports this
reading of "reasonable." The ADA defines discrimination as
a failure to provide a reasonable accommodation unless doing
so would result in undue hardship to the employer. Discrimi-
nation is: "not making reasonable accommodations to the
known physical and mental limitations of an otherwise quali-
fied individual with a disability . . . unless such[employer]
can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such cov-
ered entity." 42 U.S.C. S 12112(b)(5)(A).

Undue hardship is defined as "an action requiring signifi-
cant difficulty or expense, when considered in light of the fac-
tors set forth in subparagraph (B)." 42 U.S.C.S 12111(10)
(emphasis added). This definition expressly includes eco-
nomic considerations and other difficulties for the employer.

We must read a statute to give effect to each word in it, so
that none are superfluous. See State v. Watkins , 939 F.2d 710,
715 (9th Cir. 1991). The word "reasonable" in 42 U.S.C.
S 12112(b)(5)(A) must refer to something other than the
effects of the difficulty or expense on the employer of provid-
ing an accommodation. The statute makes sense only if "rea-
sonable" refers to the effects of the accommodation on the
employee's ability reasonably to perform the essential func-
tions of the job and does not include effects of difficulty or
expense on the employer.

This relationship between the demonstration of reasonable-
ness and undue hardship has several virtues. First, it fits the
ADA structure and follows the ADA's text. Second, it avoids
the evident confusion in trying to give meaning to both
"undue hardship" and "reasonable" if "reasonable" were to
include the same effects on the employer as are considered in
"undue hardship." And third, the employee can better deter-
mine what accommodation will work for him or her, while the
employer has greater access to information about whether a
particular accommodation will cause an undue hardship.

Under the statute's express terms, the "difficulty or
expense" of an accommodation should not be considered in
assessing "reasonable accommodation," but, rather, consid-
ered only in assessing "undue hardship."

_________________________________________________________________

O'SCANNLAIN, Circuit Judge, with whom Circuit Judges
Trott and Kleinfeld join, dissenting:

The sweeping language and exalted tone of the court's
wide-ranging opinion make clear that it aspires to offer a
definitive interpretation of the Americans with Disabilities
Act (ADA). This might be less disturbing if this case actually
involved an American with a disability. Because the court
reaches out to decide several important issues of first impres-
sion in a case without a proper plaintiff, I must respectfully
dissent.

Robert Barnett suffers from back problems. Barnett's doc-
tor has imposed upon him permanent restrictions that prohibit
him from excessive bending, twisting, and turning; prolonged
standing or sitting; and lifting twenty-five pounds or more.
Barnett claims that these restrictions prevent him from serving
in the cargo position but do not prevent him from working in
the swing-shift mailroom position. The functions of the mail-
room position include occasional bending and frequent twist-
ing and turning; occasional standing or sitting; and some
lifting. The crucial limitation imposed upon Barnett, then, is
the twenty-five pound lifting restriction, because it is the only
restriction that would prevent him from handling cargo, but
would not prevent him from working in the mailroom.

The record evidence in this case clearly establishes that
Barnett is not disabled within the meaning of the ADA. In
Thompson v. Holy Family Hospital, 121 F.3d 537 (9th Cir
1997), we affirmed the summary judgment dismissal of an
ADA case on the ground that the plaintiff failed to create a
genuine issue of material fact as to her disability. Cynthia
Thompson, like Robert Barnett, suffered from back problems,
and her doctor, like Barnett's doctor, prohibited her from lift-
ing more than twenty-five pounds. See id. at 539. The Thomp-
son court found this limitation inadequate to establish a triable
issue as to the plaintiff's disability. Although it acknowledged
that lifting and working constitute "major life activities" for
purposes of the ADA's implementing regulations, Thomp-
son's twenty-five-pound lifting restriction did not constitute
"the requisite evidence that she is substantially limited with
respect to these activities." Id. at 539-40 (expressing agree-
ment with "[a] number of courts [that] have held that lifting
restrictions similar to Thompson's are not substantially limit-
ing" (citing cases)). Although Thompson's lifting restriction
prevented her from serving as a nurse performing "total
patient care" duties, just as Barnett's identical lifting restric-
tion prevented him from serving in the cargo position, the
panel held that "[t]he inability to perform one particular job
does not constitute [a substantial] limitation " on the general
ability to work. Id. at 540.

The similarities between Thompson and the instant case, in
terms of both the plaintiff's claimed disabilities and the
employer's responses thereto, are striking. Under Thompson,
it is clear that no genuine issue of material fact exists as to
Barnett's disability. The district court's grant of summary
judgment should be affirmed.

The court addresses (or dodges) the question whether Bar-
nett is "disabled" under the ADA in a footnote, noting in pass-
ing that the district court concluded that Barnett was
"disabled" under the ADA and that U.S. Air did not raise the
issue of Barnett's disability on appeal. Maj. op. at 12805 n.1.
The failure of U.S. Air to file a cross-appeal, however, in no
way precludes us from affirming based on Barnett's failure to
establish that he is disabled. Contrary to the suggestion in that
footnote, it is well-settled that we may affirm a grant of sum-
mary judgment based on any ground supported by the record.
See, e.g., Albertson's, Inc. v. United Food and Commercial
Workers Union, 157 F.3d 758, 760 n.2 (9th Cir. 1998); Intel
Corp. v. Hartford Accident and Indem. Co., 952 F.2d 1551,
1556 (9th Cir. 1991). In Intel, the district court granted Intel's
motion for summary judgment, holding, in part, that Hartford,
which had issued an insurance policy to Intel, waived its reli-
ance on one of the policy's exclusions. We affirmed the grant
of summary judgment, but on a different ground. We exam-
ined the policy's exclusion, and held that there was no mate-
rial issue of fact as to the exclusion's application. See id. at
1561.

Although U.S. Air did not present the issue of Barnett's
disability (or lack thereof) in a separate appeal, the parties
have had more than ample opportunity to brief and to argue
the issue in both the district court and this court. Before the
district court, U.S. Air argued that Barnett's lifting restrictions
did not render him disabled under the ADA; Barnett opposed
granting summary judgment on that basis. In a fairly brief dis-
cussion, the district court determined that summary judgment
could not be properly granted on the issue because of evi-
dence showing Barnett's back injury to be "serious and per-
manent."

On August 26, 1996, Barnett filed his notice of appeal in
our court; U.S. Air did not file a cross-appeal. 1 One year later,
on August 8, 1997, we decided Thompson. In our order filed
September 16, 1997, we specifically directed the parties to
file supplemental briefs discussing Thompson. These briefs
were filed in advance of oral argument before the three-judge
panel, held on October 8, 1997.

In both the district court and this court, the parties have had
the opportunity to develop, and have actually developed, the
issue of Barnett's disability, both before, and in light of,
Thompson. As a result, nothing bars us from taking the pru-
dential path and refraining from deciding weighty issues in a
weightless case. Cf. Belotti v. Baird , 428 U.S. 132, 143-44
(1976). In Belotti, the Court held that the district court should
have abstained from deciding a constitutional issue, stating
that, "It is not entirely clear that appellants suggested the
same interpretation in the District Court as they suggest here.
Nevertheless, the fact that full arguments in favor of absten-
tion may not have been asserted in the District Court does not
bar this Court's consideration of the issue." Id. at 143 n.10
(internal citation omitted). Cf. Delange v. Dustra Const. Co.,
183 F.3d 916, 919 n.3 (9th Cir. 1999) (recognizing that this
circuit may exercise its discretion to review issues raised for
the first time on appeal).

III

Barnett's case simply cannot bear the weight that the court
seeks to place upon it. A case so transparently lacking in merit
is an inappropriate vehicle for deciding multiple questions of
first impression concerning the proper construction of an
important statute (and creating a circuit split in the process,
see maj. op. at 12821 n.8). The court has issued what in effect
amounts to a lengthy advisory opinion on the ADA; when this
case returns to the district court, the only appropriate course
of action will be to dispose of it under Thompson.

Because Barnett is simply not disabled under the ADA, the
district court's grant of summary judgment was proper and
should be affirmed. I respectfully dissent.

TROTT, Circuit Judge, with whom Circuit Judges
O'Scannlain and Kleinfeld join, dissenting:

In taking this case en banc, we ordered that our deceased
colleague Judge Charles Wiggins's panel opinion be vacated.
With all respect, I cannot agree with the majority's new opin-
ion for our court, and because I am unable to improve on
Judge Wiggins's analysis of the important seniority system
issue in this case, I republish here his excellent analysis from
his extirpated work.

Moreover, I am troubled by the regrettable position in
which we leave employers, employees, and the lawyers who
advise them in connection with these important and possibly
costly decisions. To require them to deal with a seniority sys-
tem as "merely one factor" leaves them with no guidance,
none at all. This default portends litigation in every case
where a seniority system blocking the accommodation is
respected, and even possibly in cases where it is not, brought
in that instance by aggrieved persons earlier in line for the
job.

What to do with seniority systems in this context is a policy
question for Congress, one which we as judges have no
authority or ability to resolve. We are left with legislation by
litigation, and we become a nation not of laws, but of lawyers.
In any event, forced to decide, I go with Judge Wiggins, and
I express posthumously my thanks for his usual clear vision
and remarkable service to our court. Here is how he saw it.

The ADA's ambiguous legislative history is of little help in
determining whether seniority policies should be treated the
same under the ADA and the Rehabilitation Act. On one
hand, there is evidence that Congress considered seniority
rights to be merely one factor in reasonable accommodation
analysis under the ADA, rather than a dispositive factor. See
S. Rep. No. 101-116, at 32 (1989) ("The collective bargaining
agreement could be relevant, however, in determining
whether a given accommodation is reasonable. For example,
if a collective bargaining agreement reserves certain jobs for
employees with a given amount of seniority, it may be consid-
ered as a factor in determining whether it is a reasonable
accommodation to assign an employee with a disability with-
out seniority to that job.") H.R. Rep. No. 101-485, pt. 2, at 63
(1990) (same language), reprinted in 1990 U.S.C.C.A.N. 303,
345. On the other hand, the House and Senate Reports also
state that reasonable accommodation does not require "bump-
ing" a more senior employee to create a vacancy (although if
the employer chose to do so, such bumping would constitute
reasonable accommodation). See S. Rep. No. 101-116, at 32
(1989); H.R. Rep. No. 101-485, pt. 2, at 63 (1990), reprinted
in 1990 U.S.C.C.A.N. 303, 345.

In the face of this ambiguity, I am persuaded by well-
reasoned opinions from other circuits that have concluded that
the ADA does not require an employer to give disabled
employees preference over nondisabled employees in hiring
and reassignment decisions. But this is precisely what Barnett
requests. U.S. Air's seniority system is a decades-old system
that controls the duty assignments, shifts, transfers, holidays,
etc. of U.S. Air's approximately fourteen thousand customer
service agents. Barnett does not claim that U.S. Air's policy
is illegitimate and an excuse for unlawful discrimination. But
Barnett does claim that U.S. Air should have left him in the
mailroom position, thus excepting him from its seniority pol-
icy, because of his disability. Although many ADA cases
have held that reasonable accommodation does not require
exempting a disabled employee from a collectively bargained
seniority system, see, e.g., Foreman v. Babcock & Wilcox,
Co., 117 F.3d 800, 810 (5th Cir. 1997); Cochrum v. Old Ben
Coal Co., 102 F.3d 908, 912-13 (7th Cir. 1996); Eckles v.
Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996)
(adopting a "per se" rule that reasonable accommodation does
not require "sacrificing the collectively bargained, bona fide
seniority rights of other employees"); Benson v. Northwest
Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995), Barnett
argues that his case is different because U.S. Air's seniority
policy is not the result of a collective bargaining agreement.
I reject this argument and agree with a Fifth Circuit panel that,
in dicta, found Barnett's claimed distinction to be irrelevant.
In Foreman v. Babock Wilcox Co., 117 F.3d 800 (5th Cir.
1997), the Fifth Circuit rejected a disabled employee's claim
that the ADA required his employer to reassign him to a new
position even in the face of a collectively bargained seniority
provision that would prohibit the requested transfers. The
Court rejected the employee's argument, making clear that its
decision was not based on the special status of collective bar-
gaining agreements.

[E]ven if there were no CBA in place, B & W would
not be obligated to accommodate Foreman by reas-
signing him to a new position. "[W]e do not read the
ADA as requiring affirmative action in favor of indi-
viduals with disabilities, in the sense of requiring
disabled persons be given priority in hiring or reas-
signment over those who are not disabled. It prohib-
its employment discrimination against qualified
individuals with disabilities, no more and no less.

Foreman, 117 F.3d at 810 (quoting Daugherty v. City of El
Paso, 56 F.3d 695 (5th Cir. 1995)).

I agree with the Daugherty court and the other circuits that
have interpreted the ADA as requiring no more than equality
among disabled and nondisabled employees in hiring and
reassignment decisions. This principle was well articulated by
a recent Seventh Circuit panel:

While Congress enacted the ADA to establish a
"level playing field" for our nation's disabled work-
ers, it did not do so in the name of discriminating
against persons free from disability. Restated, the
ADA does not mandate a policy of "affirmative
action in favor of individuals with disabilities, in the
sense of requiring that disabled persons be given pri-
ority in hiring or reassignment over those who are
not disabled."

Malabarba v. Chicago Tribune Co., 149 F.3d 690, 700 (7th
Cir. 1998) (quoting Daugherty, 56 F.3d at 700); see also Dal-
ton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 679 (7th
Cir. 1998) ("[W]e have been unable to find a single ADA or
Rehabilitation Act case in which an employer has been
required to reassign a disabled employee to a position when
such a transfer would violate a legitimate, nondiscriminatory
policy of the employer, and for good reason. The contrary rule
would convert a nondiscrimination statute into a mandatory
preference statute, a result which would be both inconsistent
with the nondiscriminatory aims of the ADA and an unrea-
sonable imposition on the employers and coworkers of dis-
abled employees.") (internal citations omitted); Wernick v.
Federal Reserve Bank of New York, 91 F.3d 379, 384-85 (2d
Cir. 1996) ("Congress intended simply that disabled persons
have the same opportunities available to them as are available
to nondisabled persons."); Duckett v. Dunlop Tire Corp., 120
F.3d 1222, 1225 (11th Cir. 1997) ("We are aware of no case
under either the ADA or the Rehabilitation Act where an
employer has been required to transfer an employee to
another position where the employer (independent of con-
cerns about disability) has a business policy against the perti-
nent kind of transfer.") But see Aka v. Washington Hospital
Center, 156 F.3d 1284, 1305 (D.C. Cir. 1998) (en banc) (not-
ing that "[a]n employer is not required to reassign a disabled
employee in circumstances `when such transfer would violate
a legitimate, nondiscriminatory policy of the employer,' " but
also arguing against the dissent's claim that the ADA "man-
dat[es] nothing more than that the employer allow the dis-
abled employee to submit his application along with all of the
other candidates.").

Because Barnett's proposed accommodation would violate
U.S. Air's legitimate seniority policy, I find that the proposed
accommodation is unreasonable under the ADA./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove: not found

_______________________________________________________________

FOOTNOTES

1 The district court determined that Barnett was "disabled" under the
ADA and U.S. Air concedes that they did not raise this issue to the court
on appeal.

In his dissent, Judge O'Scannlain argues that U.S. Air has not waived
the issue of whether Barnett is "disabled." However, the law of this circuit
is that issues not raised in a party's opening brief are waived. See Parac-
aor Finance v. General Elec. Capital corp., 96 F.3d 1151, 1168 (9th Cir.
1996) (Judge O'Scannlain writing for the court). Only last year, Judge
O'Scannlain reaffirmed this principle as the law of our circuit on at least
three separate occasions. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999) ("arguments not raised by a party in its opening brief are
deemed waived."); Brookfield Communications, Inc. v. West Coast Enter-
tainment Corp., 174 F.3d 1036, 1046 n.7 (9th Cir. 1999) ("Brookfield
chose not to argue its trademark dilution claim or its state law causes of
action in its opening brief. We accordingly deem those issues waived.");
Zukle v. Regents of University of California, 166 F.3d 1041, 1045 n.10
(9th Cir. 1999) ("Zukle did not raise her race, sex or sexual harassment
claims in her opening brief; therefore she has waived any appeal from the
district court's grant of summary judgment on these claims."). Issues are
deemed waived, as Judge O'Scannlain has pointed out, despite the exis-tence of supplemental briefing. See Kreisner v. City of San Diego, 1 F.3d
775, 778 n.2 (9th Cir. 1993).

As we explained in Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994) (internal citation omitted): "We review only issues which are argued
specifically and distinctly in a party's opening brief. We will not manufac-
ture arguments for an appellant, and a bare assertion does not preserve a
claim." We have consistently regarded issues raised for the first time in
reply briefs as waived. See Omega Environmental, Inc. v. Gilbarco, Inc.,
127 F.3d 1157, 1167 (9th Cir. 1997); McMillan v. United States, 112 F.3d
1040, 1047 (9th Cir. 1997). Thus, since U.S. Air failed to raise the issue
of Barnett's "disability" in its opening and reply brief, this issue was
waived despite the filing of supplemental briefs. As U.S. Air saw fit to
raise this issue before the district court, before our decision in Thompson
v. Holy Family Hospital, 121 F.3d 537 (9th Cir. 1997), came down, it had
the opportunity to raise the issue in a cross-appeal.

Furthermore, the facts of this case do not fit under our ruling in Thomp-
son. In Thompson, the only restriction imposed on the plaintiff was a
twenty five-pound lifting restriction. Id. at 539. In contrast here, as the dis-
sent concedes, Barnett faced further restrictions regarding prolonged
standing or sitting and excessive or repeated bending, twisting, turning,
stooping, pulling and pushing. The dissent claims special insight into these
restrictions and concludes that the lifting restriction was actually the only
"crucial limitation." There is no basis in the record for this conclusion.
The question of whether Barnett is "disabled" is analytically distinct from
an analysis of the functions of the mail room position, which the dissent
appears to rely on. Nonetheless, the job analysis of the mail room position,
which did not involve an assessment of the position's essential functions,
still showed that the position did not require prolonged standing or sitting
or excessive bending, stooping, pulling or pushing.
2 The First Circuit, in Jacques v. Clean-Up Group, Inc., 96 F.3d 506,
515 (1st Cir. 1996), opted for a case-by-case approach but explained that
"[t]here may well be situations in which the employer's failure to engage
in an informal interactive process would constitute a failure to provide rea-
sonable accommodation that amounts to a violation of the ADA." Later
cases have suggested that the employee bears the burden of showing rea-
sonable accommodation but have continued the case-by-case approach:
"[t]hese are difficult, fact intensive, case-by-case analyses, ill-served by
per se rules or stereotypes." Garcia-Ayala v. Lederle Parenterals, Inc.,
212 F.3d 638, 650 (1st Cir. 2000).
3 Under the Rehabilitation Act, the Fifth Circuit held that "the burden of
persuasion in proving inability to accommodate always remains on the
employer." Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5th
Cir. 1981). We followed the Fifth Circuit in holding that "the burden of
persuasion in proving inability to accommodate always remains on the
employer." Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985).
However, our later cases under the Rehabilitation Act suggested a higher
burden for plaintiffs. See Buckingham v. United States, 998 F.2d 735, 740
(9th Cir. 1993) ("[P]laintiffs must only provide evidence sufficient to
make `at least a facial showing that reasonable accommodation is possi-
ble' "); Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1176 (9th Cir.
1998) ("[Plaintiff] bears the initial burden of showing that `the suggested
accommodation would, more probably than not, have resulted in his abil-
ity to perform the essential functions of his job' ").
4 In analyzing undue hardship, the focus is on the impact of a possible
accommodation on the employer. Conversely, in assessing reasonableaccommodations the primary focus is on whether the accommodation
effectively allows a disabled employee to successfully perform the job.

See 29 C.F.R. Pt. 1630, App. S 1630.9.
5 In keeping with the statutory requirements, employers must notify
applicants and employees of the reasonable accommodation provisions,
who is entitled to an accommodation and what is necessary to trigger the
interactive process. See 42 U.S.C. S 12115 ("Every employer, employment
agency, labor organization, or joint labor-management committee covered
under this subchapter shall post notices in an accessible format to appli-
cants, employees, and members describing the applicable provisions of
this chapter.").
6 Under the Rehabilitation Act, employers were required to "gather suffi-
cient information from the applicant and from qualified experts as needed
to determine what accommodations are necessary to enable the applicant
to perform the job safely." Mantolete, 767 F.2d at 1423. We note that an
employer cannot ask an employee for documentation unrelated to estab-
lishing the existence of a disability and the necessity of accommodation.
Therefore, an employer generally cannot ask for an employee's complete
medical records because they are likely to contain information unrelated
to the disability at issue. See EEOC Enforcement Guidance, EEOC Com-
pliance Manual at 5440.
7 If an employer fails to participate in or obstructs the interactive pro-
cess, injunctive relief is an available remedy to insure compliance with the
requirement of good faith interaction and to require reasonable accommo-
dation. See 42 U.S.C. S 12117(a) (making injunctive relief available under
Title I of the ADA by incorporating the remedies ofS 2000e-5).
8 At best other circuits have opined in dicta as to what approaches the
courts should take. In Smith, 180 F.3d at 1176, the Tenth Circuit, in dis-
cussing the various situations an employer might face in making a reas-
signment opined (although the issue was not before it) that "an industry
may have a well entrenched seniority system which, even though not
rooted in a collective bargaining agreement, is so well established that itgives rise to legitimate expectations by other, more senior employees to
a job that the disabled employee might desire. Requiring an employer to
disrupt and violate any such well-established reasonable expectations of
seniority rights in order to favor a disabled employee in a job reassignment
could, at least under some circumstances, constitute a fundamental and
unreasonable alteration in the nature of the employer's business." The
court cites to Aka at 156 F.3d at 1305. Aka had at issue a dispute over
Aka's job qualifications and the meaning of the collective bargaining
agreement that allowed the employer latitude in some circumstances in
reassignment of disabled employees after stating "It seems clear that WHC
[the employer] had power under Section 14.5 of the CBA to reassign its
disabled employees to vacant positions in at least some circumstances." Id.
at 1303. It remanded for trial. The court concluded with this statement:
"Given the large number of contingencies that could preclude such a con-
flict, we see no need to address whether, if such a conflict arose, the CBA
or the ADA would give way in the circumstances of this case." Id. at
1306. Aka refers to Dalton v. Subaru-Isuzu Automobile, Inc., 141 F.3d 667
(7th Cir. 1998). The issues before the Seventh Circuit were the qualifica-
tions of disabled employees for available jobs:"If any of the plaintiffs had
been able to point to a particular job that was filled by a temporary worker
while a plaintiff was on disability leave, and then had been able to show
that he or she could have done that job consistent with the relevant qualifi-
cations, summary judgment would have been wrong. But no one was able
to do so." Id. at 679-680. In dicta, it opined that the duties of the employer
under the ADA to reassign do not go so far as to extend [the duty to reas-
sign] "to virtually every other job in a company, from the president to the
janitors. Nothing in the ADA requires an employer to abandon its legiti-
mate, nondiscriminatory company policies defining job qualifications, pre-
requisites, and entitlements to intra-company transfers." Id.
9 Despite this guidance in the legislative history and the EEOC, most cir-
cuits including our own have reached the opposite conclusion and held
that the ADA does not require an accommodation which conflicts with a
collective bargaining agreement. See Davis v. Florida Power & Light Co.,
205 F.3d 1301, 1307 (11th Cir. 2000); Willis v. Pacific Maritime Assoc.,
162 F.3d 561 (9th Cir. 1998); Feliciano v. State of Rhode Island, 160 F.3d
780, 787 (1st Cir. 1998); Cassidy v. Detroit Edison Co., 138 F.3d 629, 634
(6th Cir. 1998); Kralik v. Durgin, 130 F.3d 76, 83 (3d Cir. 1997); Fore-
man v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997); Eckles
v. Consol. Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996); Milton v. Scriv-
ner, Inc., 53 F.3d 1118, 1125 (10th Cir 1995); Benson v. Northwest Air-
lines, 62 F.3d 1108, 1114 (8th Cir. 1995). Willis has been held in abeyance
pending the completion of the en banc proceedings in this case. None of
the cases listed in this footnote confronted the question presented to us--
we confront a seniority system not grounded in a collective bargaining
agreement.
10 The ADA has no language protecting the operation of a "bona fide
seniority system" similar to that which is included in Title VII. See 42
U.S.C. S 2000e-2(h). We note that the "undue hardship" standard in the
ADA is substantially more demanding than the hardship standard in Title
VII in the context of "reasonable accommodation " for the religion of
employees. See Trans World Airlines v. Hardison , 432 U.S. 63, 84 (1977);
Balint v. Carson City, Nevada, 180 F.3d 1047, 1053 (9th Cir. 1999) (en
banc) (relying on Hardison in a religious discrimination claim brought
under Title VII). The legislative history supports this interpretation. See S.
Rep. No. 101-116, at 36 (1989) ("The Committee wishes to make it clear
that the principles enunciated by the Supreme Court in TWA v. Hardison,
432 U.S. 63 (1977), are not applicable to this legislation.); see also H.
Rep. No. 101-485, pt. 2, at 68 (1990) ("By contrast, under the ADA, rea-
sonable accommodation must be provided unless they rise to the level of
`requiring significant difficulty or expense' on the part of the employer,
in light of the factors noted in the statute-i.e., a significantly higher stan-
dard than that articulated in Hardison. This higher standard is necessary
in light of the crucial role that reasonable accommodation plays in ensur-
ing meaningful employment opportunities for people with disabilities.")11 Interestingly, U.S. Air does provide an exception in its seniority sys-
tem for catastrophic illness.
1 The fact that Thompson was decided well after the time for U.S. Air
to file a notice of appeal had passed may explain in part U.S. Air's failure
to take a cross-appeal.

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BARNETT v U.S. AIR, INC. 9616669v2

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BARNETT v U.S. AIR, INC.
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